Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 1 of 9
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`KATHERINE L. MATTHEWS, COLORADO BAR NO. 53372
`Senior Counsel
`Environmental Enforcement Section
`United States Department of Justice
`999 18th Street, South Terrace, Room 370
`Denver, Colorado 80202
`Telephone: (303) 844-1365
`Facsimile: (303) 844-1350
`Katherine.Matthews@usdoj.gov
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`Attorney for Plaintiff United States
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`LAWRENCE G. WASDEN
`Attorney General
`State of Idaho
`DARRELL G. EARLY
`Deputy Attorney General
`Chief, Natural Resources Division
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`LISA J. O’HARA, ISB # 7452
`Deputy Attorney General
`Department of Environmental Quality
`1410 N. Hilton, 2nd Floor
`Boise, Idaho 83706
`Telephone (208) 373-0494
`lisa_ohara@deq.idaho.gov
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`Attorneys for Plaintiff State of Idaho
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`UNITED STATES DISTRICT COURT
`DISTRICT OF IDAHO
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`____________________________________
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`UNITED STATES OF AMERICA, and
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`the STATE OF IDAHO,
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`Plaintiffs,
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`P4 PRODUCTION, L.L.C.,
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`Defendant.
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`____________________________________)
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`Civil Action No.
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`COMPLAINT
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`KATHERINE L. MATTHEWS, COLORADO BAR NO. 53372
`Senior Counsel
`Environmental Enforcement Section
`United States Department of Justice
`999 18th Street, South Terrace, Room 370
`Denver, Colorado 80202
`Telephone: (303) 844-1365
`Facsimile: (303) 844-1350
`Katherine.Matthews@usdoj.gov
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`Attorney for Plaintiff United States
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`LAWRENCE G. WASDEN
`Attorney General
`State of Idaho
`DARRELL G. EARLY
`Deputy Attorney General
`Chief, Natural Resources Division
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`LISA J. O’HARA, ISB # 7452
`Deputy Attorney General
`Department of Environmental Quality
`1410 N. Hilton, 2nd Floor
`Boise, Idaho 83706
`Telephone (208) 373-0494
`lisa_ohara@deq.idaho.gov
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`Attorneys for Plaintiff State of Idaho
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`UNITED STATES DISTRICT COURT
`DISTRICT OF IDAHO
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`____________________________________
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`UNITED STATES OF AMERICA, and
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`the STATE OF IDAHO,
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`Plaintiffs,
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`v.
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`P4 PRODUCTION, L.L.C.,
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`Defendant.
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`____________________________________)
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`Civil Action No.
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`COMPLAINT
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 2 of 9
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`The United States of America, by authority of the Attorney General of the United States
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`and through the undersigned attorney, and at the request of the United States Environmental
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`Protection Agency (EPA), and the State of Idaho, by the authority of the Idaho Attorney General
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`and through the undersigned attorney, file this complaint and allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought under Sections 106, 107, and 113(g)(2)(B) of the
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`Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as
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`amended, 42 U.S.C. §§ 9606 and 9607, for injunctive relief and recovery of costs incurred and to
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`be incurred in response to releases and threatened releases of hazardous substances into the
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`environment at or from the Ballard Mine Site (Site) located in Caribou County, Idaho.
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`2.
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`The State of Idaho seeks additional relief under the Idaho Environmental
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`Protection and Health Act (EPHA), Idaho Code § 39-101, et seq., for certain injunctive relief,
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`declaratory relief, and reimbursement of costs it has incurred and will incur relating to the
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`discharge of hazardous substances at the Site.
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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 the
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`parties under 28 U.S.C. §§ 1331, 1345, and 1367 and Sections 106, 107, and 113(b) of
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`CERCLA, 42 U.S.C. §§ 9606, 9607, & 9613(b).
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`4.
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`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) and Section
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`113(b) of CERCLA, 42 U.S.C. § 9613(b), because the releases or threatened releases of
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`hazardous substances that gave rise to this claim occurred in this district, and because the Site is
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`located in this district.
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`2
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 3 of 9
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`DEFENDANT
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`5.
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`Defendant P4 Production, L.L.C. (Defendant) is a company formed in Delaware
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`and registered to do business in the State of Idaho, and a wholly-owned subsidiary of the
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`Monsanto Company, which is a subsidiary of Bayer AG.
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`6.
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`Defendant is a “person” as defined in Section 101(21) of CERCLA, 42 U.S.C.
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`§ 9601(21).
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`7.
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`Defendant currently owns the Site.
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`STATUTORY BACKGROUND
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`8.
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`CERCLA was enacted in 1980 to provide a comprehensive governmental
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`mechanism for abating releases and threatened releases of hazardous substances and other
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`pollutants and contaminants, and for funding the costs of such abatement and related
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`enforcement activities, which are known as “response” actions, 42 U.S.C. §§ 9604(a), 9601(25).
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`9.
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`Section 104(a)(1) of CERCLA, 42 U.S.C. § 9604(a)(1), provides:
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`Whenever (A) any hazardous substance is released or there is a
`substantial threat of such a release into the environment, or (B)
`there is a release or substantial threat of release into the
`environment of any pollutant or contaminant which may present an
`imminent and substantial danger to the public health or welfare,
`the President is authorized to act, consistent with the national
`contingency plan, to remove or arrange for the removal of, and
`provide for remedial action relating to such hazardous substance,
`pollutant, or contaminant at any time (including its removal from
`any contaminated natural resource), or take any other response
`measure consistent with the national contingency plan which the
`President deems necessary to protect the public health or welfare
`or the environment.
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`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in pertinent part:
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`10.
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`Notwithstanding any other provision or rule of law, and subject
`only to the defenses set forth in subsection (b) of this Section –
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`(1)
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`the owner and operator of a vessel or a facility
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 4 of 9
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`shall be liable for –
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`* * *
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`(A)
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`all costs of removal or remedial action incurred by the
`United States Government . . . not inconsistent with the
`National Contingency Plan . . . .
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`Under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), the United States is also
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`11.
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`authorized to seek injunctive relief necessary to abate the imminent and substantial
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`endangerment to the public health or welfare, or the environment, that may result from an actual
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`or threatened release of a hazardous substance at or from a facility.
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`12.
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`Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), provides: “In any such
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`action described in this subsection, the court shall enter a declaratory judgment on liability for
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`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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`13.
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`The Idaho Environmental Protection and Health Act, Idaho Code §39-108,
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`provides inter alia that:
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`…any person who has determined to have violated the provisions
`of this act or the rules, permits, or order promulgated hereunder,
`shall be liable for any expense incurred by the state in enforcing
`the act, or in enforcing or terminating any nuisance source of
`environmental degradation, cause of sickness or health hazard.
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`GENERAL ALLEGATIONS
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`14.
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`The Site is a former open-pit phosphate mine located in the Phosphate Resource
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`Area of southeastern Idaho. The Site is located approximately thirteen miles north of Soda
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`Springs, Idaho, in Caribou County. To manage cleanup operations of the Site, EPA has divided
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`response actions for the Site into portions referred to as “Operable Units.”
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 5 of 9
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`15.
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`On September 24, 2019, EPA issued a Record of Decision for Operable Unit 1
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`that called for, among other things, an engineered cover system over more than 500 acres of the
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`Site where wastes are left in place, a series of permeable reactive barriers to intercept and treat
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`contaminated groundwater, and wetland treatment cells to treat contaminated residual seeps and
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`springs.
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`16.
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`The Site is a “facility” as defined in Section 101(9) of CERCLA, 42 U.S.C.
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`§ 9601(9).
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`17.
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`There has been a “release” or a “threatened release” of “hazardous substances,”
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`including selenium and heavy metals, into the “environment” at or from the Site, as those terms
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`are defined in Section 101 of CERCLA, 42 U.S.C. § 9601.
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`18.
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`In undertaking response actions to address the release or threat of release of
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`hazardous substances at the Site, EPA has incurred and will continue to incur “response costs” as
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`defined in Section 101(25) of CERCLA, 42 U.S.C. § 9601(25).
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`19.
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`The United States has incurred at least $300,000 as of August 31, 2019, in
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`response costs with respect to the Site that have not been reimbursed. These response costs are
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`not inconsistent with the National Contingency Plan promulgated pursuant to Section 105 of
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`CERCLA, 42 U.S.C. § 9605, and codified at 40 C.F.R. Part 300.
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`20.
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`The State of Idaho has incurred and will continue to incur response costs within
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`the meaning of CERCLA Section 107(a), which are not inconsistent with the National
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`Contingency Plan, and expenses within the meaning of Idaho Code §39-108 associated with
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`responding to and terminating a nuisance, source of environmental degradation, cause of
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`sickness or health hazard associated with the Site.
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 6 of 9
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`FIRST CLAIM FOR RELIEF
`Cost Recovery Under CERCLA Section 107
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`Paragraphs 1 through 1920 are re-alleged and incorporated herein by reference.
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`Defendant owns the Site, which is a facility, within the meaning of Section
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`21.
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`22.
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`107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1).
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`23.
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`Hazardous substances have been released at and from the Facility into the
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`environment within the meaning of Sections 101 and 107 of CERCLA, 42 U.S.C. §§ 9601, 9607.
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`24.
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`The United States’ actions in response to the release or threatened release of
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`hazardous substances from the Facility constitute “removal” and “remedial” actions as defined
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`by Sections 101(23) and 101(24) of CERCLA, 42 U.S.C. §§ 9601(23) and 9601(24), for which
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`the United States has incurred costs.
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`25.
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`Defendant is therefore liable under Section 107(a)(1) and 113(g)(2) of CERCLA,
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`42 U.S.C. §§ 9607(a)(1), 9613(g)(2), for all costs incurred and to be incurred by the United
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`States and the State of Idaho in response to releases and threatened releases of hazardous
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`substances at and from the Site.
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` SECOND CLAIM FOR RELIEF
`Injunctive Relief Under CERCLA Section 106
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`26.
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`27.
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`Paragraphs 1 through 20 are re-alleged and incorporated herein by reference.
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`EPA has determined that there is or may be an imminent and substantial
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`endangerment to the public health and welfare or the environment because of actual or
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`threatened releases of hazardous substances at or from the Site.
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`28.
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`EPA has determined that the response actions selected in the Record of Decision
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`are necessary to abate the danger or threat at or from the Site.
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 7 of 9
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`29.
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`Under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), Defendant is liable for
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`injunctive relief to abate the danger or threat presented by a release or threatened release of
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`hazardous substances into the environment at or from the Site.
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`30.
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`Under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), Defendant is liable to
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`undertake the response actions as described in the Record of Decision for the Site.
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`THIRD CLAIM FOR RELIEF
`Response Costs/Expenses Under State Law
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`31.
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`32.
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`Paragraphs 1 through 20 are re-alleged and incorporated herein by reference.
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`Pursuant to Idaho Code § 39-108(6), Defendant is liable to the State of Idaho for
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`all expenses incurred by Idaho in connection with investigating and terminating a nuisance or
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`source of environmental degradation, sickness or health hazard.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully request that this Court:
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`A.
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`Enter judgment in favor of Plaintiffs and against the Defendant, jointly and
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`severally, under Section 107(a)(4)(A) of CERCLA, 42 U.S.C. § 9607(a)(4)(A), for unreimbursed
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`response costs incurred and to be incurred by the United States relating to the Site, including
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`enforcement costs and prejudgment interest;
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`B.
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`Enter an order under Section 106 of CERCLA, 42 U.S.C. § 9606(a), requiring the
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`Defendant to perform the response actions as described in the Record of Decision for the Site;
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`C.
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`Enter a declaratory judgment on Defendant’s liability that will be binding in any
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`subsequent action for further response costs, pursuant to Section 113(g)(2) of CERCLA, 42
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`U.S.C. § 9613(g)(2);
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 8 of 9
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`D.
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`Order the Defendant to reimburse Plaintiff State of Idaho for all cleanup and
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`removal costs Plaintiff State of Idaho has incurred and will incur at the Site, with applicable
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`interest;
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`E.
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`Enter a declaratory judgment against the Defendant for all cleanup and removal
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`costs Plaintiff State of Idaho may incur at the Site; and
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`F.
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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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`JEAN E. WILLIAMS
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`Acting Assistant Attorney General
`Environment and Natural Resources Division
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`United States Department of Justice
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`s/ Katherine L. Matthews
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`KATHERINE L. MATTHEWS
`Senior Counsel
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`999 18th Street, Suite 370
`Denver, Colorado 80202
`303-844-1365
`Katherine.Matthews@usdoj.gov
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`RAFAEL M. GONZALEZ, JR.
`Acting United States Attorney
`CHRISTINE G. ENGLAND
`Assistant United States Attorney
`District of Idaho
`Washington Group Plaza IV
`800 East Park Boulevard, Suite 600
`Boise, ID 83712-7788
`Telephone: (208) 334-1211
`Facsimile: (208) 334-1414
`Email: Christine.England@usdoj.gov
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`Case 4:21-cv-00092-CWD Document 1 Filed 03/01/21 Page 9 of 9
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`LAWRENCE G. WASDEN
`Attorney General
`State of Idaho
`DARRELL G. EARLY
`Deputy Attorney General
`Chief, Natural Resources Division
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`s/ Lisa O’Hara
`LISA O’HARA
`Deputy Attorney General
`Office of the Attorney General
`Environmental Quality Section
`1410 N. Hilton – 2nd Floor
`Boise, ID 83706
`Telephone: 208.373.0494
`Email: Lisa_Ohara@deq.idaho.gov
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