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`Ronald A. McIntire, State Bar No. 127407
`RMcIntire@perkinscoie.com
`PERKINS COIE LLP
`1888 Century Park East
`Suite 1700
`Los Angeles, CA 90067-1721
`Telephone: 310.788.3277
`Facsimile: 310.843.2872
`
`Attorneys for Plaintiff
`THE BOEING COMPANY
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. 2:20-CV- 06601
`COMPLAINT
`
`
`THE BOEING COMPANY,
`a Delaware corporation,
`Plaintiff,
`
`v.
`UNITED STATES OF AMERICA,
`Defendant.
`
`
`
`Plaintiff, The Boeing Company (“Boeing”), for its Complaint against
`Defendant, the United States of America, alleges and states as follows:
`INTRODUCTION
`
`1.
`This is a civil action under sections 107(a), 113(f), and 113(g)(2) of
`the Comprehensive Environmental Response, Compensation, and Liability Act
`(“CERCLA”), 42 U.S.C. §§ 9601-9675.
`2.
` Boeing seeks to recover from the federal government the necessary
`costs of response that it has incurred and will incur in a manner consistent with the
`National Contingency Plan (“NCP”), 40 C.F.R. 300, caused by the release or
`threatened release of hazardous substances at the aircraft manufacturing plant
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`Case 2:20-cv-06601-CBM-PD Document 1 Filed 07/24/20 Page 2 of 9 Page ID #:2
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`formerly located at 19503 South Normandie Avenue, Torrance California (the
`“Site”), and their migration to the adjacent Montrose Chemical and Del Amo Dual
`Superfund Site (the “MDA Sites”).
`3.
`Boeing seeks to recover from the federal government Boeing’s past
`and future response costs for investigating and remediating contamination at the
`Site, and for investigating and remediating certain hazardous substances that are
`alleged to have been released from the Site and migrated to the MDA Sites. Boeing
`is entitled to recover its response costs for addressing this contamination to the
`extent it is associated with the periods of time during which the federal government
`owned or operated the Site, or arranged for the disposal or treatment of hazardous
`substances at the Site.
`
`JURISDICTION AND VENUE
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`4.
`This Court has exclusive jurisdiction over this action pursuant to
`section 113(b) of CERCLA, 42 U.S.C. § 9613(b). In addition, the Declaratory
`Judgment Act, 28 U.S.C. § 2201, and section 113(g)(2) of CERCLA, 42 U.S.C.
`§ 9613(g)(2), authorize this Court to grant Boeing’s request for declaratory relief.
`5.
`Venue in this Court is proper pursuant to section 113(b) of CERCLA,
`42 U.S.C. § 9613(b), because the federal government may be found in this District
`and the alleged releases of hazardous substances occurred in this District.
`PARTIES
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`6.
`Plaintiff Boeing is a corporation duly formed under the laws of the
`State of Delaware, with its headquarters in the State of Illinois. Boeing is a
`successor in interest to McDonnell Douglas Corporation (“MDC”) which, in turn, is
`a successor in interest to Douglas Aircraft Company (“DAC”). Boeing, MDC, and
`DAC are hereinafter collectively referred to as Boeing.
`7.
`Defendant United States includes all relevant agencies of the federal
`government, including the Department of Defense, Department of the Air Force,
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`Case 2:20-cv-06601-CBM-PD Document 1 Filed 07/24/20 Page 3 of 9 Page ID #:3
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`Department of the Army, Department of the Navy, Department of Commerce,
`Army Corps of Engineers, General Services Administration, and all other
`departments, agencies, and instrumentalities of the federal government.
`FACTUAL BACKGROUND
`
`A. The Site
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`8.
`The Site includes the plants and areas formerly designated or
`commonly referred to as Boeing’s C-6 Plant or Plancor 226, and all associated
`facilities, including all associated disposal areas.
`9.
`Under various government contracts dated from the 1950s through the
`early 1990s, Boeing manufactured and/or assembled aircraft parts and components
`and missile components and equipment for the United States military at the Site.
`10. During the federal government’s ownership and operation of facilities
`at the Site from the 1950s through 1970, when Boeing was manufacturing and/or
`assembling military aircraft components and other military hardware in support of
`the national defense, hazardous substances, including volatile organic compounds
`(“VOCs”), were released to the environment, resulting in contamination of soil and
`groundwater in and around the Site.
`B.
`The Federal Government’s Involvement at the Site
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`11. Soon after the start of the Korean War, in 1952, the Navy condemned
`the real property at the Site and acquired an already-constructed plant from a third
`party, after which it leased the property to Boeing and contracted with Boeing to
`convert and modernize the plant and install machinery and equipment to
`manufacture aircraft components for naval aircraft, and other military hardware.
`12. From that time through 1970, the federal government owned all of the
`land and buildings and equipment and machinery (including vapor degreasers at the
`Site) and land improvements (including storm drains and sanitary sewers). Under
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`its lease, Boeing had a limited right to make alterations and improvements to the
`Site, but those alterations and improvements required the prior written consent of
`the Navy. Moreover, any major alterations and improvements to the Site
`automatically became the property of the government. The Site during this time
`was known as a Naval Weapons Industrial Reserve Plant.
`13.
`In 1970, the United States sold the land, buildings, equipment, and
`machinery making up the Site to Boeing. Boeing was still manufacturing military
`aircraft components and equipment at the time, and continued to do so (along with
`commercial aircraft components) through the early 1990s.
`14. From at least 1952, the federal government exercised pervasive
`supervision over operations at the Site and was actively involved in manufacturing
`activities, including the exercise of engineering coordination and control through
`stages of production and service use, and requirements on the chemical materials to
`be used for aircraft component manufacturing, including the chemicals to be used
`for cleaning.
`15. The federal government specified how military aircraft parts and
`components would be manufactured and maintained and what hazardous substances
`would be used during such manufacturing processes.
`16. The federal government knew waste generation was inherent in the
`military aircraft manufacturing processes conducted at the Site.
`17. The federal government owned the waste products generated during
`the Site’s manufacturing processes.
`18. The federal government owned, reviewed, and approved of the means
`of waste disposal at and from the Site.
`19. The federal government controlled both the production and waste-
`handling processes at the Site through regulations, contractual requirements,
`military specifications, and on-site inspections by Bureau of Aeronautics
`representatives who actively supervised operations at the Site.
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`20. Military aircraft parts and components were manufactured at the Site
`for the federal government pursuant to supply contracts entered into by Boeing and
`the federal government.
`21. Pursuant to these supply contracts, the federal government owned all
`of the hazardous substances that were purchased for and used to fulfill the
`contracts.
`22. The federal government continued to own these hazardous substances
`throughout the military aircraft parts and components manufacturing processes.
`23. Waste was created when hazardous substances were used to
`manufacture military aircraft parts and components at the Site.
`24. Pursuant to the supply contracts, the federal government owned the
`waste that was created when these hazardous substances were used for the
`manufacture of military aircraft parts and components at the Site.
`25. By entering into these supply contracts, the federal government
`intended for Boeing to dispose of the waste that was created when hazardous
`substances were used for the manufacture of military aircraft parts and components
`at the Site.
`26. Through its ownership, review, and approval of all of these means of
`waste management, the federal government intended to dispose of waste from the
`Site, and it intended for Boeing to dispose of waste on behalf of the federal
`government.
`C. The MDA Sites
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`27. Releases of hazardous substances occurred at the MDA Sites from the
`former Montrose pesticide manufacturing plant and the former synthetic rubber
`manufacturing plant. In addition, releases of hazardous substances potentially
`migrated to the MDA Sites as a result of operations of additional facilities in the
`area surrounding the MDA Sites.
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`28. The decision by EPA on the remedy to be implemented at the MDA
`Sites is embodied in a final Record of Decision executed on March 31, 1999. In
`2011, Boeing and other parties received a special notice letter from the United
`States Environmental Protection Agency regarding the groundwater operable unit
`of the MDA Sites.
`29. During the federal government’s ownership or operation of facilities at
`the Site, where military aircraft parts and components were manufactured in
`support of the national defense, certain hazardous substances were released from
`the Site and thereafter may have migrated to the MDA Sites.
`D. Boeing Has Incurred and Will Continue to Incur Response Costs at the
`Site and the MDA Sites
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`30. To investigate, reduce, clean up, or eliminate contamination at the Site,
`Boeing has performed various actions under the oversight of the Los Angeles
`Regional Water Quality Control Board and the California Department of Toxic
`Substances Control, including, but not limited to, investigating the nature and
`extent of contamination, analyzing remediation alternatives, and identifying and
`eliminating potential ongoing sources of contamination through interim measures.
`31. Boeing has incurred response costs to investigate and remediate
`contamination at the Site. Boeing will continue to incur response costs in the future.
`32. Boeing’s response costs at the Site are necessary to address a threat to
`human health or the environment. They are also consistent with the National
`Contingency Plan (“NCP”).
`33. Boeing has incurred some response costs to investigate certain
`hazardous substances at the MDA Sites that may have migrated from the Site.
`Boeing will incur response costs in the future relating further investigation and
`remediation of certain hazardous substances at the MDA Sites that may have
`migrated from the Site.
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`FIRST CLAIM FOR RELIEF:
`COST RECOVERY AND, IN THE ALTERNATIVE, CONTRIBUTION
`BASED ON THE FEDERAL GOVERNMENT’S LIABILITY
`UNDER CERCLA
`
`34. Boeing repeats and realleges paragraphs 1 through 33 above, as though
`fully set forth herein.
`35. Boeing has incurred necessary costs of response incurred in a manner
`consistent with the NCP under section 107(a)(4)(B) of CERCLA, 42 U.S.C.
`§ 9607(a)(4)(B), to remediate VOCs and other hazardous substances at the Site.
`36. The federal government (a) owned land, land improvements, buildings,
`equipment, machinery, and other facilities at the Site at the time hazardous
`substances were disposed of and otherwise released at the Site; (b) had the authority
`to and/or did in fact manage, direct, or otherwise control operations at the Site,
`including operations specifically related to the acquisition, storage, use, and
`disposal of hazardous substances; and/or (c) arranged for the disposal or treatment
`of hazardous substances at the Site by contract, agreement, or otherwise. The
`federal government therefore is a person within the meaning of section 107(a) of
`CERCLA, 42 U.S.C. § 9607(a).
`37. Pursuant to sections 107(a)(4)(B) and 113(f)(1) and (f)(3)(B) of
`CERCLA, 42 U.S.C. §§ 9607(a)(4)(B), 9613(f)(1), 9613(f)(3)(B), Boeing is
`entitled to cost recovery and, in the alternative, contribution, from the federal
`government for response costs incurred in connection with the Site and certain
`hazardous substances that may have migrated from the Site to the MDA Sites.
`Response costs incurred by Boeing or for which Boeing may be deemed liable
`should be equitably allocated to the federal government based on such equitable
`factors as this Court determines are appropriate.
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`38. Boeing is entitled to pre and post-judgment interest on the amount
`recovered under this claim pursuant to section 107(a)(2) of CERCLA, 42 U.S.C.
`§ 9607(a)(2).
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`SECOND CLAIM FOR RELIEF:
`DECLARATORY JUDGMENT OF THE FEDERAL GOVERNMENT’S
`LIABILITY FOR RESPONSE COSTS UNDER CERCLA
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`39. Boeing repeats and realleges paragraphs 1 through 38 above, as though
`fully set forth herein.
`40. This is a claim for declaratory judgment under section 113(g)(2) of
`CERCLA, 42 U.S.C. § 9613(g)(2), and 28 U.S.C. § 2201. Within the meaning of
`those statutes, an actual and substantial controversy exists between Boeing and the
`federal government regarding their respective rights and obligations related to
`response costs that have been and will be incurred to investigate and remediate
`contamination at the Site and certain hazardous substances that may have migrated
`from the Site to the MDA Sites.
`41. Pursuant to section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2),
`Boeing is entitled to a declaratory judgment that the federal government is liable to
`Boeing for the response costs incurred and to be incurred in the future, together
`with pre and post-judgment interest.
`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Boeing demands judgment in its favor and against
`Defendant United States as follows:
`1.
`As to the first claim for relief, for recovery of the United States’
`equitable share of past response costs consistent with the NCP, including
`recoverable attorneys’ fees, incurred by Boeing at the Site and in connection with
`releases of certain hazardous substances from the Site that may have migrated to
`MDA;
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`As to the second claim for relief, for a judicial declaration that the
`2.
`federal government is liable for future response costs consistent with the NCP
`incurred by Boeing at the Site and in connection with releases of certain hazardous
`substances from the Site that may have migrated to MDA;
`3.
`As to all claims for relief, for pre and post-judgment interest on
`response costs incurred and to be incurred by Boeing; and
`4.
`As to all claims for relief, for all costs and expenses incurred in this
`action, to the extent provided for by law, and such other and further relief as this
`Court may deem just and proper.
`
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`DATED: July 24, 2020
`
`
`PERKINS COIE LLP
`
`By: /s/ Ronald A. McIntire
`Ronald A. McIntire
`RMcIntire@perkinscoie.com
`1888 Century Park East
`Suite 1700
`Los Angeles, CA 90067-1721
`Telephone: 310.788.3277
`Facsimile: 310.843.2872
`
`Attorneys for Plaintiff
`The Boeing Company
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