Case 1:20-cv-00602-WS-MU Document 1 Filed 12/17/20 Page 1 of 9 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ALABAMA
`MOBILE DIVISION
`
`__________________________________________
`UNITED STATES OF AMERICA,
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`))
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`)
`)
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`))
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`Plaintiff,
`
`v.
`
`OLIN CORPORATION and BASF
`CORPORATION
`
`Civil Action No. (cid:20)(cid:29)(cid:21)(cid:19)(cid:16)(cid:70)(cid:89)(cid:16)(cid:25)(cid:19)(cid:21)
`
`)
`
`))
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`)
`
`
`Defendants.
`__________________________________________)
`
`COMPLAINT
`
`The United States of America, by authority of the Attorney General of the United States,
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`and at the request of the Administrator of the United States Environmental Protection Agency
`
`(“EPA”), through the undersigned attorneys, files this Complaint and alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action for injunctive relief and recovery of costs against Olin
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`Corporation and BASF Corporation (collectively “Defendants”) pursuant to Sections 106 and
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`107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, as
`
`amended (“CERCLA”), 42 U.S.C. § 9606.
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`2.
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`The United States seeks (a) performance of response actions by Defendants at
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`Operable Unit 2 (“OU-2”) of the Olin McIntosh Superfund Site (“the Site”), located in
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`Washington County, Alabama consistent with the National Oil and Hazardous Substances
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`Pollution Contingency Plan, 40 C.F.R. Part 300 (as amended) (“NCP”); (b) reimbursement of
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`response costs incurred by EPA and the Department of Justice related to the Site together with
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`any interest; and (c) a declaratory judgment of liability for response costs that will be incurred
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`related to OU-2 of the Site.
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`1
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ALABAMA
`MOBILE DIVISION
`
`__________________________________________
`UNITED STATES OF AMERICA,
`
`))
`
`)
`)
`
`))
`
`Plaintiff,
`
`v.
`
`OLIN CORPORATION and BASF
`CORPORATION
`
`Civil Action No. (cid:20)(cid:29)(cid:21)(cid:19)(cid:16)(cid:70)(cid:89)(cid:16)(cid:25)(cid:19)(cid:21)
`
`)
`
`))
`
`)
`
`
`Defendants.
`__________________________________________)
`
`COMPLAINT
`
`The United States of America, by authority of the Attorney General of the United States,
`
`and at the request of the Administrator of the United States Environmental Protection Agency
`
`(“EPA”), through the undersigned attorneys, files this Complaint and alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action for injunctive relief and recovery of costs against Olin
`
`Corporation and BASF Corporation (collectively “Defendants”) pursuant to Sections 106 and
`
`107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, as
`
`amended (“CERCLA”), 42 U.S.C. § 9606.
`
`2.
`
`The United States seeks (a) performance of response actions by Defendants at
`
`Operable Unit 2 (“OU-2”) of the Olin McIntosh Superfund Site (“the Site”), located in
`
`Washington County, Alabama consistent with the National Oil and Hazardous Substances
`
`Pollution Contingency Plan, 40 C.F.R. Part 300 (as amended) (“NCP”); (b) reimbursement of
`
`response costs incurred by EPA and the Department of Justice related to the Site together with
`
`any interest; and (c) a declaratory judgment of liability for response costs that will be incurred
`
`related to OU-2 of the Site.
`
`1
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`Case 1:20-cv-00602-WS-MU Document 1 Filed 12/17/20 Page 2 of 9 PageID #: 2
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`JURISDICTION AND VENUE
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`3.
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`This Court has jurisdiction over the subject matter of this action and over
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`Defendants, pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§ 9606(a), 9607(a), and
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`9613(b).
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`4.
`
`Venue is proper in this district pursuant to 42 U.S.C. §§ 9606(a) and 9613(b) and
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`28 U.S.C. § 1391(b) and (c), because the Site is located, the claims arose, and the threatened and
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`actual releases of hazardous substances that gave rise to these claims occurred, within this
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`judicial district.
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`DEFENDANTS
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`5.
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`Defendant Olin Corporation (“Olin”), a Virginia corporation, is a “person” within
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`the meaning of Section 101(21) of CERCLA, 42 U.S.C. § 9601(21). Olin is the current “owner”
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`and “operator” of the Site and was the “owner” and “operator” of the Site at the time of disposal
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`of hazardous substances as those terms are defined in Sections 101(20) and 107(a)(1) and (2) of
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`CERCLA, 42 U.S.C. §§ 9601(20) and 9607(a)(1) and (2).
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`6.
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`Defendant BASF Corporation (“BASF”), a Delaware corporation, is a “person”
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`within the meaning of Section 101(21) of CERCLA, 42 U.S.C. § 9601(21). BASF is the current
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`“owner” and “operator” of the Ciba-Geigy Plant as those terms are defined in Sections 101(20)
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`and 107(a)(1) of CERCLA, 42 U.S.C. §§ 9601(20) and 9607(a)(1).
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`GENERAL ALLEGATIONS
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`7.
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`The Site is located at 1638 Industrial Road in McIntosh, Washington County,
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`Alabama.
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`8.
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`EPA organized the Site into two operable units. Operable Unit 1 consists of the
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`active production facility, Solid Waste Management Units, and the upland area of the Olin
`
`2
`
`
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`Case 1:20-cv-00602-WS-MU Document 1 Filed 12/17/20 Page 3 of 9 PageID #: 3
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`property. OU-2 consists of the Olin Basin located east of the main Olin plant area and adjacent to
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`the Tombigbee River, a floodplain and a wastewater ditch leading to the Basin.
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`9.
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`OU-2 consists of approximately 220 acres of open ponded water and seasonally
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`flooded wetland. Under base water flow (non-flooded stage) conditions, the open water portion
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`of OU-2 consists of the 76-acre Olin Basin (the Basin), and the 4-acre Round Pond. Olin Basin
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`and Round Pond drain into the Tombigbee River through an inlet channel at the south end of the
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`Basin. OU-2 also includes a wastewater ditch (about 6,000 linear feet) that extends from the
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`main plant to the Basin. This ditch formerly discharged into the southwest corner of the Basin,
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`but currently discharges into the inlet channel to the Tombigbee River.
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`10.
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`Olin owned and operated the Site from 1952 to the present as an active chemical
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`production facility.
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`11.
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`Between 1952 and 1984, Olin discharged wastewater containing mercury and
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`hexachlorobenze (“HCB”) through a wastewater ditch into the Olin Basin which drains into the
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`Tombigbee River. Natural forces, such as flooding and wind effects, spread the mercury and
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`HCBs to other parts of the floodplain on the Site.
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`12.
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`In 1984, EPA placed the Site on the National Priorities List, set forth at 40 C.F.R.
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`Part 300, Appendix B.
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`13.
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`From 1952 to 1970, Geigy Chemical Corporation owned the property
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`immediately to the north of the Site (“the Ciba-Geigy Plant”) and operated a chemical production
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`plant there.
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`14.
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`In 1952, Geigy Chemical Corporation produced dichlorodiphenyl-trichloroethane
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`(“DDT”) at the Ciba-Geigy Plant. Geigy’s production of DDT resulted in undesirable by-
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`products dichlorodiphenyldichloroethane (“DDD”) and dichlorodiphenyldichloroethylene
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`(“DDE”).
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`3
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`15.
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`16.
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`17.
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`In the environment, DDT degrades into DDD and DDE.
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`BASF currently owns and operates the Ciba-Geigy Plant.
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`There have been, and continue to be, releases of DDT, DDD, and DDE at the
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`Ciba-Geigy Plant.
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`18.
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`Natural forces, such as flooding and wind effects, carry and have carried DDT,
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`DDD, and DDE from the Ciba-Geigy Plant into OU-2.
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`19.
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`EPA conducted investigations that uncovered Mercury, HCB, DDT, DDD, and
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`DDE contamination in OU-2.
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`20.
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`On April 23, 2014, EPA issued a Record of Decision (“ROD”) setting forth the
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`Remedial Actions to be implemented at OU-2 of the Site. The major components of the remedy
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`include a multi-layered cap, further sampling, institutional controls, construction monitoring,
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`maintenance, and long-term monitoring.
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`21.
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`The ROD is not inconsistent with CERCLA and the National Contingency Plan,
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`40 C.F.R. Part 300.
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`22. Mercury, HCB, DDT, DDD, and DDE are hazardous substances within the
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`meaning of Section 101(14) of CERCLA, 42 U.S.C. § 9601(14).
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`23.
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`The Site is a “facility” within the meaning of Section 101(9) of CERCLA, 42
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`U.S.C. § 9601(9).
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`24.
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`The Ciba-Geigy Plant is a “facility” within the meaning of Section 101(9) of
`
`CERCLA, 42 U.S.C. § 9601(9).
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`25.
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`There have been and continue to be “releases” or “threatened releases” of
`
`“hazardous substances” into the environment from the Site, within the meaning of Sections
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`101(8), 101(14) and, 101(22), of CERCLA, 42 U.S.C. §§ 9601(8), 9601(14) and, 9601(22).
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`4
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`26.
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`There have been and continue to be “releases” or “threatened releases” of
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`“hazardous substances” into the environment from the Ciba-Geigy Plant, within the meaning of
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`Sections 101(8), 101(14) and, 101(22), of CERCLA, 42 U.S.C. §§ 9601(8), 9601(14) and,
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`9601(22).
`
`27.
`
`As a result of these releases or threatened releases of hazardous substances, the
`
`United States has incurred and will incur costs authorized by Section 104 of CERCLA, 42
`
`U.S.C. § 9604, as defined by Sections 101(23), (24) and (25) of CERCLA, 42 U.S.C. §§
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`9601(23), (24) and (25).
`
`28.
`
`As stated in the ROD, EPA estimates that the Remedial Design and Remedial
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`Action for OU-2 of the Site will cost between $13.4 and $21.5 million to implement excluding
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`EPA oversight costs.
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`FIRST CLAIM FOR RELIEF
`(Injunctive Relief)
`
`29.
`
`30.
`
`Paragraphs 1 through 28 are realleged and incorporated herein by reference.
`
`Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), provides in pertinent part:
`
`[W]hen the President determines that there may be an imminent and substantial
`endangerment to the public health or welfare or the environment because of an
`actual or threatened release of a hazardous substance from a facility, he may require
`the Attorney General of the United States to secure such relief as may be necessary
`to abate such danger or threat . . . .
`
`31.
`
`The Regional Administrator of EPA Region 4, through delegated authority, has
`
`determined that there is or may be an imminent and substantial endangerment to the public
`
`health or welfare or the environment because of actual or threatened releases of hazardous
`
`substances into the environment at the Site.
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`32.
`
`Parties that are liable to the United States under Section 107 of CERCLA, 42
`
`U.S.C. § 9607, may be ordered to abate such danger or threat. See Section 106(a) and (b)(2)(D)
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`of CERCLA, 42 U.S.C. § 9606(a) and (b)(2)(D).
`5
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`33.
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`Defendants are jointly and severally liable to the United States under Section 107
`
`of CERCLA, 42 U.S.C. § 9607, and for injunctive relief to abate and remedy the conditions at
`
`the Site that may present an imminent and substantial endangerment to the public health or
`
`welfare or the environment because of an actual or threatened release of hazardous substances at
`
`the Site.
`
`SECOND CLAIM FOR RELIEF
`(Reimbursement of Response costs)
`
`34.
`
`35.
`
`Paragraphs 1 through 28 are realleged and incorporated herein by reference.
`
`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in pertinent part:
`
`Notwithstanding any other provision or rule of law, and subject only to the defenses
`set forth in subsection (b) of this section—
`
`(1)
`
`(2)
`
`(4)
`
`the owner and operator of a vessel or a facility
`
`any person who at the time of disposal of any hazardous substance owned
`or operated any facility at which such hazardous substances were disposed
`of, . . .
`
`. . . from which there is a release, or a threatened release which causes the
`incurrence of response costs, of a hazardous substance,
`
`Shall be liable for –
`
`*
`
`*
`
`*
`
`(A)
`
`all costs of removal or remedial action incurred by the United States
`Government . . . not inconsistent with the National Contingency Plan . . .
`
`36.
`
`Pursuant to Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), Olin is liable
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`as an owner and operator of a facility when disposal of hazardous substances occurred at that
`
`facility from which there has been a release, or threatened release, which caused the incurrence
`
`of response costs.
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`37.
`
`Pursuant to Section 107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1), Olin is liable
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`as the current owner and operator of a facility from which there has been a release, or threatened
`
`release, which caused the incurrence of response costs.
`6
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`38.
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`Pursuant to Section 107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1), BASF is
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`liable as the current owner and operator of a facility from which there has been a release, or
`
`threatened release, which caused the incurrence of response costs.
`
`39.
`
`Defendants are liable to the United States pursuant to Section 107(a) of CERCLA,
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`42 U.S.C. § 9607(a), for unrecovered response costs not inconsistent with the NCP incurred by
`
`the United States in connection with the Site, plus any applicable interest on the response costs
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`incurred.
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`40.
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`Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), provides in pertinent part
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`that in any action for recovery of costs, “the court shall enter a declaratory judgment on liability
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`for response costs or damages that will be binding on any subsequent action or actions to recover
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`further response costs or damages.”
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`41.
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`Pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), the United
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`States is entitled to a declaratory judgment that Defendant is liable to the United States under
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`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for further response costs not inconsistent with
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`the NCP incurred by the United States in connection with the Site.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, the United States of America, respectfully requests that
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`this Court:
`
`A.
`
`Order Defendants to abate the conditions at OU-2 of the Site that may present an
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`imminent and substantial endangerment to the public health or welfare or environment, pursuant
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`to Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), by performing the remedy selected by EPA
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`in the ROD;
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`B.
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`Award the United States a judgment against Defendants, pursuant to Section
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`107(a) of CERCLA, 42 U.S.C. § 9607(a), for all response costs not inconsistent with the NCP
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`7
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`Case 1:20-cv-00602-WS-MU Document 1 Filed 12/17/20 Page 8 of 9 PageID #: 8
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`incurred by the United States in connection with OU-2 at the Site, plus any accrued interest on
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`the costs;
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`C.
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`Award the United States a declaratory judgment, pursuant to Section 113(g)(2) of
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`CERCLA, 42 U.S.C. § 9613(g)(2), that Defendants are liable to the United States for further
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`response costs not inconsistent with the NCP to be incurred by the United States in connection
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`with OU-2 of the Site; and
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`D.
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`Grant such other and further relief as the Court deems just and proper.
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`Respectfully submitted,
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`(cid:37)(cid:85)(cid:88)(cid:70)(cid:72)(cid:3)(cid:54)(cid:17)(cid:3)(cid:42)(cid:72)(cid:79)(cid:69)(cid:72)(cid:85)
`Deputy Attorney General Environment and
`Natural Resources Division United States
`Department of Justice
`
`s/ Peter Krzywicki
`________________________________(cid:3)
`PETER KRZYWICKI
`Trial Attorney
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`P.O. Box 7611
`Washington, DC 20044-7611
`peter.krzywicki@usdoj.gov
`Phone: (202) 305-4903
`Facsimile: (202) 514-0097
`
`Keith A. Jones
`Civil Division Chief
`United States Attorney’s Office
`Southern District of Alabama
`63 S. Royal Street, Ste. 600
`Mobile, Alabama 36602
`Phone: (251) 415-7206
`
`8
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`Case 1:20-cv-00602-WS-MU Document 1 Filed 12/17/20 Page 9 of 9 PageID #: 9
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`OF COUNSEL:
`
`LISA ELLIS
`Attorney
`U.S. EPA Region 4
`61 Forsyth Street, S.W.
`Atlanta, GA 30303
`
`9
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`
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