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Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 1 of 12 Page ID #1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
`EAST ST. LOUIS DIVISION
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`UNITED STATES OF AMERICA
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`and STATE OF ILLINOIS,
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`Plaintiffs,
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`XTRA INTERMODAL, INC. and X-L-CO., INC., :
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`Defendants.
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`COMPLAINT
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`Civil No. ______
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`The United States of America, by authority of the Attorney General of the United States,
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`acting at the request and on behalf of the U.S. Environmental Protection Agency (“EPA”), and
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`the State of Illinois (the “State”), by authority of the Illinois Attorney General, acting at the
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`request and on behalf of the Illinois Department of Natural Resources (“IDNR”), through the
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`undersigned attorneys, 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 by the United States and the State (collectively, the
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`“Plaintiffs”) against Defendants XTRA Intermodal, Inc. (“XTRA Intermodal”) and X-L-Co., Inc.
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`(“X-L-Co.”) pursuant to Sections 106 and 107 of the Comprehensive Environmental Response,
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`Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. §§ 9606 and
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`9607. The Plaintiffs seek several forms of relief relating to releases and threatened releases of
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`hazardous substances from facilities at the Old American Zinc Plant Superfund Site in Fairmont
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`City and Washington Park, St. Clair and Madison Counties, Illinois (the “Site”). The United
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`States alleges that the Defendants are liable for injunctive relief and reimbursement of response
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 2 of 12 Page ID #2
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`costs incurred or to be incurred for response actions taken or to be taken at or in connection with
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`the release or threatened release of hazardous substances at the Site pursuant to CERCLA
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`Sections 106 and 107(a)(4)(A), 42 U.S.C. §§ 9606 and 9607(a)(4)(A). The State alleges that the
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`Defendants are liable for damages for injury to, loss of, or destruction of natural resources
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`resulting from releases of hazardous substances at the Site pursuant to CERCLA Sections
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`107(a)(4)(C) and 107(f), 42 U.S.C. §§ 9607(a)(4)(C) and 9607(f).
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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 pursuant to
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`Section 113(b) and (e) of CERCLA, 42 U.S.C. §§ 9613(b) and (e), and 28 U.S.C. §§ 1331 and
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`1345.
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`3.
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`Venue is proper in this district pursuant to 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 releases of
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`hazardous substances occurred in this district.
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`BACKGROUND ON THE SITE AND THE STATUTE
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`The Site
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`4.
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`The Site consists of an approximately 132-acre Facility Area where former zinc
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`smelting operations were conducted, and areas surrounding the Facility Area where elevated
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`concentrations of metals associated with the historic smelter operations were found in various
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`media. Historic operations at the Site resulted in the release or threat of release of hazardous
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`substances, including lead, cadmium, zinc, arsenic, and manganese, into soils, sediments, and
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`groundwater at the Site.
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`5.
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`In approximately 1911, Granby Mining & Smelting (“Granby”) constructed a
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`smelter in the Facility Area and operated the smelter from approximately 1912 until 1916.
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`2
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 3 of 12 Page ID #3
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`6.
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`The American Zinc Company of Illinois (“American Zinc”) purchased the smelter
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`from Granby in 1916 and operated the smelter until at least the 1950s. The smelter produced
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`slab zinc, zinc carbonate, cadmium, lead and sulfuric acid.
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`7.
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`A by-product of American Zinc’s operations was slag or “clinker” that was
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`consolidated by American Zinc in piles in certain portions of the Facility Area.
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`8.
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`American Zinc – later known as Azcon Corporation (“Azcon”) – retained
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`ownership of the Facility Area at the Site until 1979, when it was purchased by X-L-Co.
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`9.
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`10.
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`X-L-Co. transferred ownership of the Facility Area to XTRA Intermodal in 1995.
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`XTRA Intermodal continues to own the Facility Area.
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`Response Activities at the Site
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`11.
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`Pursuant to CERCLA, EPA may take “response” actions in response to the
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`release and threatened release of hazardous substances at and from facilities, including
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`contaminated sites.
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`12.
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`CERCLA Section 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), authorizes the United
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`States and states to recover costs that they incur in response to the release and threatened release
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`of hazardous substances, to the extent such costs are not inconsistent with the National
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`Contingency Plan (“NCP”). The statute imposes liability for such costs on certain classes of
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`potentially responsible parties (“PRPs”), including current owners and operators of a facility
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`from which there has been a release of a hazardous substance and parties that owned or operated
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`a facility at the time of disposal of a hazardous substance.
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`13.
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`Under CERCLA Section 106(a), 42 U.S.C. § 9606(a), when EPA determines that
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`there may be an imminent and substantial endangerment to the public health or welfare or the
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`environment because of an actual or threatened release of a hazardous substance from a facility,
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`EPA may: (i) seek the assistance of the U.S. Department of Justice to secure court-ordered relief
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`3
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 4 of 12 Page ID #4
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`as may be necessary to abate such danger or threat; and (ii) take other actions including issuing
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`such orders as may be necessary to protect public health and welfare and the environment.
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`14.
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`In response to the release or threatened release of hazardous substances at or from
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`the Site, EPA undertook response actions at the Site pursuant to CERCLA Section 104,
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`42 U.S.C. § 9604, and will undertake additional response actions in the future. Response actions
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`taken and to be taken at the Site include excavation of contaminated soils inside and outside of
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`the Facility Area, consolidation of excavated soil on the facility property, and capping the
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`consolidated contaminated soil with a 24-inch soil barrier layer and 12-inch vegetation cover
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`system.
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`15.
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`In accordance with the NCP, a remedial investigation and feasibility study for the
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`Site were performed between 2005 and 2012.
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`16.
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`EPA selected a final cleanup remedy for the Site in a Record of Decision issued in
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`September 2012.
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`17.
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`In performing response actions at the Site, EPA has incurred and will continue to
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`incur response costs in connection with response actions at the Site. EPA incurred these costs in
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`a manner not inconsistent with the NCP.
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`Natural Resource Damage Assessment and Restoration Activities
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`18.
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`In addition to being liable for payment of response costs and performance of
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`response actions, PRPs at a site are liable for damages for any injury to, destruction of, or loss of
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`natural resources resulting from the release of hazardous substances, including the reasonable
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`costs of assessing such injury, under CERCLA Section 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C).
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`Pursuant to CERCLA § 107(f), 42 U.S.C. § 9607(f), duly-designated federal and state natural
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`resource trustees (and Native American Tribes) are authorized to recover such natural resource
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`damages (“NRD”).
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`4
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 5 of 12 Page ID #5
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`19.
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`Under CERCLA, the term “natural resources” includes “land, fish, wildlife, biota,
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`air, water . . . and other such resources belonging to, managed by, held in trust by, appertaining
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`to, or otherwise controlled by the United States [or] any State or local government,” 42 U.S.C.
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`§ 9601(16).
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`20.
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`Natural resources have been injured, and natural resources will continue to be
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`injured, as a result of releases of hazardous substances into the environment at the Site.
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`21.
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`The Governor of Illinois has designated IDNR to act as the State Trustee for
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`Natural Resources impacted by the release of hazardous substance at or from the Site pursuant to
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`42 U.S.C. § 9607(f)(2)(A) and 40 C.F.R.§ 300.605. IDNR acts on behalf of the public for
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`natural resources, including their supporting ecosystems, within the boundary of the State or
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`belonging to, managed by, or appertaining to such State. 40 C.F.R. § 300.605
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`22.
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`IDNR has been involved in various NRD assessment activities relating to the Site.
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`IDNR has incurred and will continue to incur assessment costs associated with NRD assessment
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`activities relating to the Site. Federal Trustees for natural resources at and near the Site were
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`advised of IDNR’s NRD assessment activities.
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`23. NRD may include compensation for interim losses to the public attributable to
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`natural resource injuries from the onset of the release through their repair or recovery to an
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`uninjured state, adjusted for any mitigation of those injuries by response actions or early
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`restoration actions, and any increase in injuries that may have occurred as a result of response
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`actions. NRD also include the costs of actions to restore, replace, or acquire the equivalent of the
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`injured natural resources and the reasonable costs of assessing the injury and the associated
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`damages.
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`5
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 6 of 12 Page ID #6
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`GENERAL ALLEGATIONS AND ALLEGATIONS RELATING TO THE DEFENDANTS
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`General Allegations
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`24.
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`XTRA Intermodal is a “person,” within the meaning of Section 101(21) of
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`CERCLA, 42 U.S.C. § 9601(21).
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`25.
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`X-L-Co. is a “person,” within the meaning of Section 101(21) of CERCLA,
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`42 U.S.C. § 9601(21).
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`26.
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`The Site is a “facility,” within the meaning of CERCLA Sections 101(9) and
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`107(a), 42 U.S.C. §§ 9601(9) and 9607(a).
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`27.
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`Lead, cadmium, zinc, arsenic, and manganese are “hazardous substances,” within
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`the meaning of CERCLA Sections 101(14) and 107(a), 42 U.S.C. §§ 9601(14) and 9607(a).
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`28.
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`There have been “releases” and “threatened releases” of hazardous substances at
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`the Site, within the meaning of CERCLA Sections 101(22) and 107(a), 42 U.S.C. §§ 9601(22)
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`and 9607(a).
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`The Defendants
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`29.
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`XTRA Intermodal is a corporation duly formed and existing under the laws of the
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`State of Delaware.
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`30.
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`X-L-Co. is a corporation duly formed and existing under the laws of the State of
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`Delaware.
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`31.
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`At times relevant to the matters alleged in this complaint, XTRA Intermodal was
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`a subsidiary of a corporation then known as XTRA, Inc.
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`32.
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`At times relevant to the matters alleged in this complaint, X-L-Co. was a
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`subsidiary of a corporation then known as XTRA, Inc.
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`33.
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`In 1976, X-L-Co. executed a lease with Azcon for approximately 20 acres of the
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`Facility Area for use as a truck terminal.
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`6
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 7 of 12 Page ID #7
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`34.
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`After X-L-Co. executed its lease with Azcon, XTRA Intermodal began
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`conducting truck terminal operations on the leased property at the Site.
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`35.
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`In June 1979, American Zinc and X-L-Co. executed an agreement whereby X-L-
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`Co. purchased the Facility Area and surrounding undeveloped land from Azcon.
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`36.
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`In June 1979, X-L-Co. also purchased from Azcon “all of the Waelz clinker and
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`other residues, minerals or metals” located at the Facility Area.
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`37.
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`After the purchase of the Facility Area by X-L-Co., XTRA Intermodal expanded
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`its truck terminal operations at the Site.
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`38.
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`To level the Facility Area for the trucking operation and create access roads,
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`XTRA Intermodal and X-L-Co. flattened piles of residual slag and clinker at the Site by moving
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`and spreading the material to other portions of the Facility Area and ground up some of the
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`material to reduce the size of the slag pieces.
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`39.
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`In March 1995, X-L-Co. transferred its ownership of the Facility Area to XTRA
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`Intermodal.
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`40.
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`41.
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`XTRA Intermodal continues to own the Facility Area at the Site.
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`In light of the foregoing, X-L-Co. is liable to Plaintiffs as a person that owned or
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`operated portions of the Site property and other facilities at the Site at the time of disposal of
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`hazardous substances at the Site, pursuant to CERCLA Section 107(a)(2), 42 U.S.C.
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`§ 9607(a)(2).
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`42.
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`In light of the foregoing, XTRA Intermodal is liable to Plaintiffs as a person that:
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`(i) owned or operated portions of the Site property and other facilities at the Site at the time of
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`disposal of hazardous substances at the Site, pursuant to CERCLA Section 107(a)(2), 42 U.S.C.
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`§ 9607(a)(2); and (ii) currently owns or operates portions of the Site property and other facilities
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`at the Site, pursuant to CERCLA Section 107(a)(1), 42 U.S.C. § 9607(a)(1).
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`7
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 8 of 12 Page ID #8
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`FIRST CLAIM FOR RELIEF
`(Cost Recovery by the United States under CERCLA Section 107, 42 U.S.C. § 9607)
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`Paragraphs 1-42 are realleged and incorporated herein by reference.
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`43.
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`44.
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`Each of the Defendants is jointly and severally liable to the United States for all
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`unreimbursed response costs incurred by the United States in connection with the Site pursuant
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`to CERCLA Section 107(a), 42 U.S.C. § 9607(a).
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`45.
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`Each of the Defendants also is jointly and severally liable to the United States for
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`any further response costs that the United States incurs in connection with the Site pursuant to
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`CERCLA Section 113(g)(2), 42 U.S.C. § 9613(g)(2).
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`SECOND CLAIM FOR RELIEF
`(Claim by the United States under CERCLA Section 106, 42 U.S.C. § 9606)
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`Paragraphs 1-42 are realleged and incorporated herein by reference.
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`46.
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`47.
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`The Environmental Protection Agency has determined that there is or may be an
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`imminent and substantial endangerment to the public health or welfare or the environment
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`because of actual and threatened releases of hazardous substances into the environment at and
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`from the Site.
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`48.
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`Pursuant to CERCLA Section 106(a), 42 U.S.C. § 9606(a), the Defendants are
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`subject to injunctive relief to abate the danger or threat presented by releases or threatened
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`releases of hazardous substances into the environment at and from the Site.
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`THIRD CLAIM FOR RELIEF
`(NRD Claim by the State under CERCLA Section 107, 42 U.S.C. § 9607)
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`Paragraphs 1-42 are realleged and incorporated herein by reference.
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`Releases of hazardous substances into the environment at the Site have resulted in
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`49.
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`50.
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`injury to, destruction of, or loss of natural resources under State trusteeship.
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`8
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 9 of 12 Page ID #9
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`51.
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`The State has incurred reasonable costs of assessing the injury, destruction, or loss
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`of natural resources resulting from releases of hazardous substances to the Site and into the
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`environment at the Site.
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`52.
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`Each of the Defendants is jointly and severally liable to the State for damages for
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`injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing
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`such damages and the injury, destruction, or loss resulting from releases of hazardous substances
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`to the Site and into the environment at the Site, pursuant to CERCLA Sections 107(a)(4)(C) and
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`107(f), 42 U.S.C. §§ 9607(a)(4)(C) and 9607(f).
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`53.
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`Each of the Defendants also is jointly and severally liable for any further damages
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`that may be assessed for injury to, loss of, or destruction of natural resources damages resulting
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`from such releases of hazardous substances, pursuant to CERCLA Section 113(g)(2), 42 U.S.C.
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`§ 9613(g)(2).
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs, the United States of America and the State of Illinois,
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`respectfully request that this Court:
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`1.
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`Enter judgment in favor of the United States and against the Defendants, jointly
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`and severally, for all unreimbursed response costs incurred by the United States in
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`connection with the Site;
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`2.
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`Enter a declaratory judgment in favor of the United States and against the
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`Defendants for any further response costs that the United States may incur in
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`connection with the Site;
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`9
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 10 of 12 Page ID #10
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`3.
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`Order the above-named Defendants to abate the conditions at the Site that may
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`present an imminent and substantial endangerment to the public health or welfare
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`or the environment;
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`4.
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`Enter a judgment in favor of the State and against the above-named Defendants,
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`jointly and severally, for natural resource damages for the Site, including
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`assessment costs;
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`5.
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`Enter a declaratory judgment in favor of the State and against the Defendants for
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`any further natural resource damages that may be assessed for the Site;
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`6.
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`7.
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`Award the United States and the State their costs of this action; and
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`Grant such other and further relief as the Court deems just and proper.
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`10
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 11 of 12 Page ID #11
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`Signature Page for Complaint in
`United States and the State of Illinois v. XTRA Intermodal, Inc. and X-L-Co., Inc. (S.D. Ill.)
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`FOR THE UNITED STATES OF AMERICA:
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`____________________________________
`JEFFREY A. SPECTOR
`Senior Attorney
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Enforcement Section
`P.O. Box 7611
`Washington, D.C. 20044-7611
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`DANIEL DERTKE
`Senior Attorney
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Defense Section
`P.O. Box 7611
`Washington, D.C. 20044-7611
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`STEVEN D. WEINHOEFT
`United States Attorney
`Southern District of Illinois
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`NATHAN D. STUMP
`Assistant United States Attorney
`Southern District of Illinois
`United States Attorneys Office
`9 Executive Drive
`Fairview Heights, IL 62208
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`Case 3:21-cv-00339-GCS Document 1 Filed 03/30/21 Page 12 of 12 Page ID #12
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`Signature Page for Complaint in
`United States and the State of Illinois v. XTRA Intermodal, Inc. and X-L-Co., Inc. (S.D. Ill.)
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`FOR THE STATE OF ILLINOIS:
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` /s Andrew B. Armstrong
`ANDREW B. ARMSTRONG
`Chief, Environmental Bureau
`Illinois Attorney General’s Office
`500 S. Second St.
`Springfield, IL 62701
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