Case 1:20-cv-01703-UNA Document 1 Filed 12/16/20 Page 1 of 7 PageID #: 1
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`____________________________________
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`STATE OF DELAWARE
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`Defendant.
`____________________________________)
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`v.
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`Civil Action No.
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`COMPLAINT
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`The United States of America, by authority of the Attorney General and through the
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`undersigned attorneys, acting at the request of the Administrator of the United States
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`Environmental Protection Agency (“EPA”), files this Complaint and alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil environmental action under Section 107(a) of the Comprehensive
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`Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a),
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`seeking recovery of response costs incurred by the United States in connection with the release
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`or threatened release of hazardous substances at Landfill Area #1 within the Governor Bacon
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`Health Center / Fort DuPont State Park located in New Castle County, Delaware (“Site”), which
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`Defendant the State of Delaware owns.
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`JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction over the subject matter of this action and the
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`Defendant pursuant to Sections 107(a) and 113(b) of CERCLA, 42 U.S.C. §§ 9607(a) and
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`9613(b), and under 28 U.S.C. §§ 1331 and 1345.
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`1
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`____________________________________
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`STATE OF DELAWARE
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`Defendant.
`____________________________________)
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`
`v.
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`Civil Action No.
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`COMPLAINT
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`
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`The United States of America, by authority of the Attorney General and through the
`
`undersigned attorneys, acting at the request of the Administrator of the United States
`
`Environmental Protection Agency (“EPA”), files this Complaint and alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil environmental action under Section 107(a) of the Comprehensive
`
`Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a),
`
`seeking recovery of response costs incurred by the United States in connection with the release
`
`or threatened release of hazardous substances at Landfill Area #1 within the Governor Bacon
`
`Health Center / Fort DuPont State Park located in New Castle County, Delaware (“Site”), which
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`Defendant the State of Delaware owns.
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`JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction over the subject matter of this action and the
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`Defendant pursuant to Sections 107(a) and 113(b) of CERCLA, 42 U.S.C. §§ 9607(a) and
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`9613(b), and under 28 U.S.C. §§ 1331 and 1345.
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`1
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`Case 1:20-cv-01703-UNA Document 1 Filed 12/16/20 Page 2 of 7 PageID #: 2
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`3.
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`Venue is proper in this District under Section 113(b) of CERCLA, 42 U.S.C.
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`§ 9613(b), and 28 U.S.C. § 1391(b) and (c), because the claims arose, and the threatened and
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`actual releases of hazardous substances occurred, in this judicial district.
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`DEFENDANT
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`Defendant has owned the Site since 1947.
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`Defendant is a “person” within the meaning of Section 101(21) of CERCLA, 42
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`4.
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`5.
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`U.S.C. § 9601(21).
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`6.
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`Defendant is an “owner” of the Site within the meaning of CERCLA Section
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`101(20)(A), 42 U.S.C. § 9601(20)(A).
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`GENERAL ALLEGATIONS
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`Site Background
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`7.
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`The Site encompasses approximately 10 to 20 acres that were historically used as
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`a dump area within the Governor Bacon Health Center / Fort DuPont State Park (“the Property”).
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`8.
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`The Property stretches across approximately 380 acres in New Castle County,
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`Delaware. The Property is bounded by the Delaware River to the east, the Chesapeake and
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`Delaware Canal to the south, and a branch of the Canal to the west and north.
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`9.
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`Beginning with the construction of a military battery in 1864, portions of the
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`Property were developed into numerous batteries and support buildings that eventually became
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`Fort DuPont.
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`10.
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`Fort DuPont went through various phases of construction and use between the
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`Civil War era and the First and Second World Wars.
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`2
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`11.
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`In approximately 1937, a portion of the Property became a dump area for Fort
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`DuPont. This dump area came to be known as Landfill Area #1, which is the Site at issue in this
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`CERCLA action.
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`12.
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`Ten years later, in January 1947, Defendant acquired the Property—including the
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`Site—from the United States through a quitclaim deed.
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`13.
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`Defendant began operating the Governor Bacon Health Center on the Property in
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`1948. In 1992, Defendant turned portions of the Property into Fort DuPont State Park.
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`14.
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`Defendant manages Fort DuPont State Park through the Delaware Department of
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`Natural Resources and Environmental Control (“DNREC”).
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`15.
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`The Site is located in the Fort DuPont State Park portion of the Property, along
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`the bank of the Delaware River. The easternmost boundary of the Site is within the tidal reach of
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`the Delaware River and is submerged by high tide.
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`16.
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`Over time, the Delaware River eroded the Site’s shoreline and exposed discarded
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`materials.
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`17. Walking trails in Fort DuPont State Park gave the public access to the Site and
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`discarded materials like demolition debris, metal objects, objects associated with military
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`operations, and objects associated with occupation of the Property over time.
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`18.
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`Aerial photographs of the Property show various levels of ground disturbance at,
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`and road access to, the Site between 1947 and 1986.
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`19.
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`In 1985, a brush fire at the Site exposed approximately 14 gas cylinders
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`containing chemical substances. After Defendant had the cylinders removed, approximately one
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`foot of fill was placed on the Site.
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`Response Action
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`20.
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`The 1985 Site fire was followed by a series of investigations into potential
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`hazardous substances and/or ordnance at the Site and across the Property.
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`21.
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`In 2003, DNREC sampling activities revealed heightened concentrations of lead
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`and other substances within or near the Site. Lead concentrations at the Site ranged above 1,000
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`milligram per kilogram (“mg/kg”), which is the DNREC Uniform Risk-Based Standard for lead
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`in an industrial land use setting.
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`22.
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`EPA carried out a preliminary removal site evaluation pursuant to Section
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`300.410 of the National Oil and Hazardous Substances Pollution Contingency Plan (“National
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`Contingency Plan”), 40 C.F.R. § 300.410, between December 2011 and December 2012.
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`23.
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`During the preliminary evaluation, EPA encountered metallic lead in various
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`forms at the Site, including as casing around electrical wire, as melted globules, and as small
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`fragments.
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`24.
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`EPA’s sampling activities during the preliminary evaluation indicated
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`concentrations of lead ranging up to approximately 55,500 mg/kg at the Site. These
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`concentrations exceeded concentrations attributable to the natural environment.
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`25.
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`Lead is a hazardous substance as defined in Section 101(14) of CERCLA, 42
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`U.S.C. § 9601(14), because it is listed in 40 C.F.R. § 302.4.
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`26.
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`On January 28, 2014, EPA approved an Action Memorandum for a time-critical
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`removal action at the Site. EPA initiated the removal action on April 7, 2014.
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`27.
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`EPA’s activities throughout the removal action included excavating and removing
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`lead-contaminated materials primarily from the tidal zone of the Site. Those materials were then
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`transported and disposed of offsite.
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`4
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`28.
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`As part of the removal action, EPA also constructed a revetment (i.e., a retaining
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`wall) to armor the remaining landfill and to minimize future erosion along the bank of the
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`Delaware River.
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`29.
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`30.
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`The last lead-contaminated material was transported offsite on October 26, 2014.
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`EPA completed the removal action on March 26, 2015. EPA returned to the Site
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`on April 28, 2015, to document final Site conditions.
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`31.
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` On August 2, 2016, the United States sent Defendant a notice of potential
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`liability that demanded payment of response costs incurred pursuant to CERCLA Section
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`107(a)(1), 42 U.S.C. § 9607(a)(1).
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`32.
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`As of December 6, 2019, the United States had incurred approximately
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`$3,779,984.60, including $136,575.03 of prejudgment interest.
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`33.
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`The United States has incurred costs of removal actions not inconsistent with the
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`National Contingency Plan in responding to the release or threatened release of hazardous
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`substances at and from the Site, within the meaning of CERCLA Sections 101(23), (24), and
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`(25), 42 U.S.C. § 9601(23)-(25).
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`CLAIM FOR RELIEF
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`34.
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`35.
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`Paragraphs 1-33 are re-alleged and incorporated herein by reference.
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`Section 107(a) of CERCLA provides in pertinent part that:
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`(1)-(4) the owner and operator of a vessel or a facility . . . 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—
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`(A) all costs of removal or remedial action incurred by the United States Government . . .
`not inconsistent with the national contingency plan.
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`42 U.S.C. § 9607(a).
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`36.
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`The Site is a “facility” within the meaning of CERCLA Section 101(9), 42 U.S.C.
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`§ 9601(9).
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`37.
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`“Hazardous substances” within the meaning of CERCLA Section 101(14), 42
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`U.S.C. § 9601(14), including lead, were found at the Site.
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`38.
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`There were “releases” or the threat of “releases” of hazardous substances into the
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`environment at the Site, within the meaning of CERCLA Section 101(22), 42 U.S.C. § 9601(22).
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`39.
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`Defendant is the owner of the Site under CERCLA Section 107(a)(1), 42 U.S.C.
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`§ 9607(a)(1).
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`40.
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`The United States has incurred costs for a “response,” as defined in CERCLA
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`Section 101(25), 42 U.S.C. § 9601(25), in investigating and removing the release or threatened
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`release of hazardous substances at the Site.
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`41.
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`The response costs incurred by the United States at the Site were not inconsistent
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`with the National Contingency Plan, 40 C.F.R. Part 300.
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`42.
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`Pursuant to CERCLA Section 107(a), 42 U.S.C. § 9607(a), Defendant is jointly
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`and severally liable to the United States for all response costs incurred by the United States in
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`connection with the Site, including enforcement costs and interest on response costs for which a
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`demand for payment has been made.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff the United States respectfully requests that the Court:
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`1.
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`Enter judgment in favor of the United States and against Defendant, jointly and
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`severally, for all response costs incurred by the United States, including prejudgment interest, for
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`response actions in connection with the Site;
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`6
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`Case 1:20-cv-01703-UNA Document 1 Filed 12/16/20 Page 7 of 7 PageID #: 7
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`2.
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`Award the United States the costs of this action, including its costs of attorney
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`time; and
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`3.
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`Grant such other relief as the Court deems appropriate.
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`Respectfully submitted,
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`JONATHAN D. BRIGHTBILL
`Principal Deputy Assistant Attorney General
`Environment and Natural Resources Division
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`/s/ Devon A. Ahearn
`DEVON A. AHEARN
`CA State Bar Number: 307275
`Trial Attorney
`Environmental Enforcement Section
`Environment & Natural Resources Division
`United States Department of Justice
`P.O. Box 7611
`Washington, D.C. 20044-7611
`Phone: (202) 514-2717
`Email: devon.ahearn@usdoj.gov
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`
`DAVID C. WEISS
`United States Attorney
`
`/s/ Laura D. Hatcher
`LAURA D. HATCHER
`DE State Bar Number: 5098
`Chief, Civil Division
`United States Attorney’s Office
`District of Delaware
`1313 N. Market St., Suite 400
`Wilmington, DE 19801
`Phone: (302) 573-6205
`Email: laura.hatcher@usdoj.gov
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`7
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