Case 2:20-cv-02586-JWL-ADM Document 1 Filed 11/19/20 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`DISTRICT OF KANSAS
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`CITY OF SALINA, KANSAS,
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`SALINA AIRPORT AUTHORITY,
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`UNIFIED SCHOOL DISTRICT NO. 305
`OF SALINE COUNTY, KANSAS, AND
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`KANSAS STATE UNIVERSITY,
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`UNITED STATES OF AMERICA,
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`Defendant.
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`Plaintiffs,
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`vs.
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`Case No. ___________________
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`COMPLAINT
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`For its Complaint against Defendant United States of America (“Defendant” or “United
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`States”), Plaintiffs City of Salina, Kansas (“City”), Salina Airport Authority (“SAA”), Unified
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`School District No. 305 of Saline County, Kansas (“USD 305”), and Kansas State University
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`(“KSU”) (referred to herein as “Plaintiffs” or “Salina Public Entities”) (collectively, the “Parties”),
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`state and aver the following:
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`STATEMENT OF THE CASE
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`1.
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`This is a civil action for response costs brought against Defendant pursuant to
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`Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of
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`1980, 42 U.S.C. § 9607, as amended by the Superfund Amendments and Reauthorization Act of
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`1986 (“CERCLA”).
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`DB04/0838358.0002/13757132.2
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`2.
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`Plaintiffs seek to recover certain unreimbursed response costs incurred and to be
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`incurred for response activities related to the release and threatened release of hazardous
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`substances at or near the former Schilling Air Force Base (the “Site”).
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`3.
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`Plaintiffs also seek a judgment on liability for future response costs that will be
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`incurred by Plaintiffs pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2).
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over this action, and the parties hereto, pursuant to
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`CERCLA Section 113(b) and 28 U.S.C. § 1331.
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`5.
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`Additionally, the Court has authority to issue a declaratory judgment concerning
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`the rights and liabilities of the parties pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. §
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`9613(g)(2).
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`6.
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`Venue is proper in this district pursuant to CERCLA Section 113(b), 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 actual
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`releases of hazardous substances occurred in this district.
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`PARTIES
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`7.
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`Plaintiff City of Salina is a municipal corporation organized under the laws of the
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`State of Kansas. Salina is a first-class city of nearly 50,000 people at the crossroads of Interstates
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`70 and 135, near the geographic center of the contiguous United States. It is a city in and the
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`county seat of Saline County, Kansas. It is a retail, agricultural, manufacturing and cultural center
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`for the 22-county area known as North Central Kansas.
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`8.
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`Plaintiff SAA is a public entity organized under the laws of the State of Kansas. It
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`consists of the Salina Regional Airport, SLN Aviation Service Center and the Salina Airport
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`Industrial Center. It is the home for over 100 businesses and organizations. On a daily basis,
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`approximately 6,000 people work in and use the SAA property. SAA is located on over 2,900
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`Case 2:20-cv-02586-JWL-ADM Document 1 Filed 11/19/20 Page 3 of 6
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`acres of land that are part of the Site.
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`9.
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`Plaintiff USD 305 is a public school district organized under the laws of the State
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`of Kansas. USD 305 Salina Public Schools provides primary and secondary education to
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`approximately 7,000 students with 1,600 employees. USD 305 owns the land and buildings for
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`the Salina Area Technical College, which is located on part of Site. The College has approximately
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`1,100 full and part-time students in addition to the staff.
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`10.
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`Plaintiff KSU is a public university organized under the laws of the State of Kansas.
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`KSU’s Polytechnic Campus is located on part of the Site and has approximately 600 undergraduate
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`students in addition to staff.
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`11.
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`Defendant United States is the federal government comprised of three branches: the
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`Executive, Judicial, and Legislative. Defendant is the former owner and operator of the Site.
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`GENERAL ALLEGATIONS1
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`12.
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`The Site is the former Schilling Air Force Base in Salina, Kansas. The Site was
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`used as an active U.S. military base from the early 1940s through the mid-1960s.
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`13.
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`The Site is contaminated with various hazardous substances, including chlorinated
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`solvents such as tricholorethylene (“TCE”), perchloroethylene (“PCE”), and carbon tetrachloride
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`(“Carbon Tet”). Per- and polyfluoroalkyl substances (“PFAS”) are also present at the Site.
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`14.
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`Each Plaintiff is a “person” within the meaning of Section 101(21) of CERCLA, 42
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`U.S.C. § 9601(21).
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`15.
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`Defendant United States is a “person” within the meaning of Section 101(21) of
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`1 A more detailed recitation of the factual history of the Site is set forth in Plaintiff’s Amended
`Complaint filed with the Court in a previously filed separate action in City of Salina, Kansas et al.
`v. United States et al., Case No. 2:10-cv-02298-CM-DJW, which matter was resolved in a
`judicially approved Consent Decree pursuant to which Plaintiffs performed a Remedial
`Investigation/Feasibility Study for the Site.
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`CERCLA, 42 U.S.C. § 9601(21). Defendant is the former owner and operator of the Site.
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`16.
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`Defendant is a person who at the time of disposal of a hazardous substance owned
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`and/or operated a facility at which such hazardous substances were disposed and from which there
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`were releases of hazardous substances, or threatened releases of hazardous substances, which
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`caused the incurrence of response costs, within the meaning of CERCLA Section 107(a)(2), 42
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`U.S.C. 9607(a)(2).
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`17.
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`The Site is a “facility” within the meaning of CERCLA Section 101(9) and 107(a),
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`42 U.S.C. §§ 9601(9) and 9607(a).
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`18.
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`At times relevant to this action, there have been “releases” and “threatened
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`releases” of “hazardous substances” from the property owned and/or operated by Defendant and
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`into the environment at and from the Site, within the meaning of CERCLA Sections 101(14),
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`101(22), and 107(a), 42 U.S.C. §§ 9601(14), 9601(22), and 9607(a). More specifically, there have
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`been “releases” and “threatened releases” of hazardous substances, including TCE, PCE, and
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`Carbon Tet, which are “hazardous substances” within the meaning of CERCLA Sections 101(14)
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`and 107(a), 42 U.S.C. §§ 9601(14) and 9607(a).
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`19.
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`Plaintiffs have incurred and will continue to incur “response costs” relating to the
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`Site within the meaning of CERCLA Section 101(25), 42 U.S.C. § 9601(25), in responding to
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`releases and threatened releases of hazardous substances from property that was owned and/or
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`operated by Defendants at the Site at the time of the release or threatened release. The response
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`costs incurred by Plaintiffs include the costs of performing ongoing remedial work at the Site.
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`Plaintiffs will continue to incur response costs in connection with remedial work at the Site.
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`20.
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`The above-described response costs relating to the Site were incurred and will be
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`incurred by the Plaintiffs in a manner consistent with the National Contingency Plan, which was
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`promulgated under CERCLA Section 105(a), 42 U.S.C. § 9605(a), and codified at 40 C.F.R. Part
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`300.
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`21.
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` Plaintiffs previously filed an action against Defendant in Case No. 10-cv-02298-
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`CM-DJW, which resulted in the entry of a judicially approved Consent Decree with respect to a
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`Remedial Investigation and Feasibility Study (“RI/FS”) for the Site. Plaintiffs performed the RI/FS
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`under a Consent Agreement and Final Order (“CAFO”) issued by the Kansas Department of Health
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`and Environment (“KDHE”). See Consent Decree (May 2, 2013) No. 2:10-cv-02298-CM-DJW
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`(Document 55).
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`22.
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`Following completion of the RI/FS process in 2019 and the entry of a Corrective
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`Action Decision by KDHE, also in 2019, Plaintiffs and Defendant entered into a multi-session
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`mediation, which ultimately resulted in the execution in 2020 of a Consent Decree with respect to
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`the design and performance of the remedy at the Site. A true and correct copy of the fully executed
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`Consent Decree will be separately lodged with the Court.
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`23.
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`The Parties are filing contemporaneously herewith a Joint Motion for Entry of the
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`Consent Decree.
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`CLAIM FOR RELIEF
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`Cost Recovery and Declaratory Judgment under CERCLA Sections 107(a) and 113(g)(2),
`42 U.S.C. §§ 9607(a) and 9613(g)(2)
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`Paragraphs 1-23 are re-alleged and incorporated herein by reference.
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`24.
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`25.
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`Pursuant to CERCLA Sections 107(a) and 113(g)(2), 42 U.S.C. § 9607(a) and
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`9613(g)(2), Defendant is liable to Plaintiffs for all response costs incurred and to be incurred by
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`Plaintiffs related to the Site, as well as prejudgment interest.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs respectfully request that the Court:
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`1.
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`Enter judgment in favor of Plaintiffs and against Defendant for response costs
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`incurred by Plaintiffs, including prejudgment interest, in connection with the above-described
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`response actions relating to the Site.
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`2.
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`Enter a declaratory judgment of liability against Defendant pursuant to CERCLA
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`Section 113(g)(2), 42 U.S.C. § 9613(g)(2), declaring Defendant jointly and severally liable for the
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`response costs incurred to date, and to be incurred in the future, consistent with the NCP, in
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`response to the releases or threatened releases of hazardous substances at the Site;
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`3.
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`4.
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`Award Plaintiffs their costs in this action; and
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`Grant such other and further relief as the Court deems just and proper.
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`DESIGNATION OF PLACE OF TRIAL
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`Plaintiffs respectfully request trial in Kansas City, Kansas.
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`STINSON LLP
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`/s/_Robin K. Carlson
`Robin K. Carlson (KS #21625)
`1201 Walnut Street, Suite 2900
`Kansas City, MO 64106-2150
`Telephone: (816) 842-8600
`Facsimile: (816) 412-9370
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`Andrew W. Davis (MN #386634)
`Application for pro hac vice admission
`pending
`50 South Sixth Street, Suite 2600
`Minneapolis, MN 55402
`Telephone: (612) 335-1500
`Facsimile: (612) 335-1657
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`ATTORNEYS FOR PLAINTIFFS
`CITY OF SALINA, KANSAS, SALINA
`AIRPORT AUTHORITY, UNIFIED SCHOOL
`DISTRICT NO. 305 OF SALINE COUNTY,
`KANSAS, AND KANSAS STATE
`UNIVERSITY
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