`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF KENTUCKY
`(Paducah Division)
`
`UNITED STATES OF AMERICA,
`
`v.
`
`Plaintiff,
`
`)
`)
`)
`)
`GOODRICH CORPORATION (f.k.a.
`B.F. Goodrich Corporation); WESTLAKE )
`VINYLS, INC.; and POLYONE
`)
`CORPORATION,
`
`5:20-cv-154-TBR
`Civil Action No. _________
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`))
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`))
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`)
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`Defendants.
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`COMPLAINT
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`The United States of America (“United States”), by authority of the Attorney
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`General of the United States and through the undersigned attorneys, acting at the
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`request of the Administrator of the United States Environmental Protection Agency
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`(“EPA” or “Plaintiff”), and allege as follows:
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`STATEMENT OF THE ACTION
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`1.
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`This is a civil action by the United States of America for injunctive
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`relief and recovery of response costs incurred or to be incurred under
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`Sections 106(a) and 107(a) of the Comprehensive Environmental Response,
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`Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C.
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`1
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`§§ 9606(a) and 9607(a), related to the releases and threatened releases of
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`hazardous substances at the B.F. Goodrich Superfund Site in Calvert City,
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`Marshall County, Kentucky (the “Site”).
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`2.
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`This civil action also seeks a declaratory judgment under section
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`113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), that each Defendant is jointly and
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`severally liable to the United States for future response costs that it incurs that is
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`not inconsistent with the NCP in responding to releases and threatened releases of
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`hazardous substances at, beneath, and/or related to the Site.
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`3.
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`The United States has incurred response costs and expects to continue
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`to incur response costs in connection with actions taken in response to releases
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`and/or threatened releases of hazardous substances at the Site.
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`4.
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`Goodrich Corporation, (formerly The B.F. Goodrich Company),
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`Westlake Vinyls, Incorporated, and PolyOne Corporation are among the parties the
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`Plaintiff has determined to be potentially responsible parties (PRPs) for the Site.
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over the subject matter of this action and
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`over Defendants under 28 U.S.C. §§ 1331, 1367, and 1345; CERCLA Sections
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`106, 107, and 113(b), 42 U.S.C. §§ 9606, 9607, and 9613(b).
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`2
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`6.
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`Venue is proper in this district under Sections 106(a) and 113(b) of
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`CERCLA, 42 U.S.C. §§ 9606(a) and 9613(b), because the claims arose, and/or the
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`threatened and actual releases of hazardous substances occurred, in the Western
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`District of Kentucky.
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`PLAINTIFF
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`7.
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`The Plaintiff the United States of America is acting at the request of
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`EPA, an agency of the United States.
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`DEFENDANTS
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`8.
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`The defendants to this action (collectively “Defendants”) are the
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`Goodrich Corporation (“Goodrich”), Westlake Vinyls Incorporated (“Westlake”),
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`and PolyOne Corporation (“PolyOne”).
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`9.
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`Goodrich was a New York corporation with its principal place of
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`business in Charlotte, North Carolina. In 2011, Goodrich was acquired by United
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`Technologies Corporation (“UTC”). In April 2020, UTC merged with the
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`Raytheon Corporation to form Raytheon Technologies.
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`10. Westlake is a Delaware corporation with its principal place of
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`business in Houston, Texas.
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`3
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`11.
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`PolyOne is an Ohio corporation with its principal place of business
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`in Avon Lake, Ohio.
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`12.
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`Each of the Defendants is a “person” within the meaning of Section
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`101(21) of CERCLA, 42 U.S.C. § 9601(21).
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`THE SITE
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`Background of Chemical Operations
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`13. Goodrich Corporation acquired farmland in Calvert, City, Kentucky in
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`1951 to construct and operate a chemical manufacturing facility.
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`14.
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`In the 1950s, Goodrich constructed its initial chemical manufacturing
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`plants at the Site.
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`15. Goodrich initiated operations at the Site in 1953, with the production
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`of vinyl chloride monomer (“VCM”) through a reaction of acetylene and hydrogen
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`chloride.
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`16.
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`In the 1960s, Goodrich built additional chemical processing plants at
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`the Site and switched from using an acetylene-based VCM production to an
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`ethylene-based VCM production (“EDC”).
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`17.
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`In the 1960s through the 1980s, Goodrich continued to expand its
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`chemical processing operations and make changes to its processes, including
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`4
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`building a chlorine plant, shutting down its acrylonitrile plant, and installing
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`wastewater ponds to eliminate waste discharge.
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`18.
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`In 1990, Goodrich sold its EDC facilities to Westlake Monomers
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`Corporation, which upon information and belief is now a part of Westlake Vinyl.
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`19.
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`In 1997, Goodrich sold its chlorine and ethylene plants to Westlake
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`CA&O Corporation, which upon information and belief is now a part of Westlake
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`Vinyl.
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`20.
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`In 2007, Goodrich transferred title of its remaining property at the Site
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`(comprised entirely of non-manufacturing areas) to PolyOne Corporation.
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`Disposal of Hazardous Substances
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`21. Until 2009, the Kentucky Department of Environmental Protection
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`(KDEP) managed most of the environmental response for the Site under the
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`Resource Conservation and Recovery Act (RCRA). Prior to 2009, the Superfund
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`response only focused on the B.F. Goodrich landfill and burn pit area adjacent to
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`the operating plant area which had been added to the National Priorities List (NPL)
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`in 1984.1 As EPA and KDEP’s understanding of the magnitude of contamination
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`1 The Airco Site, adjacent to the B.F. Goodrich Site (landfill and burn pit area), also was listed on the NPL in 1984,
`and due to the shared history and adjacent location of these Sites, the PRPs addressed both Sites under one ROD
`in 1988.
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`5
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`increased, in 2009, KDEP requested that the EPA expand the scope of the
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`Superfund response, specifically by expanding the NPL listing to include the rest
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`of the B.F. Goodrich (now owned by Westlake Vinyls, Incorporated) operating
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`plant area previously managed by KDEP under RCRA.
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`22. After the Defendants completed the Remedial
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`Investigation/Feasibility Study (RI/FS) for the Site in 2017, the EPA Administrator
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`signed the Record of Decision (ROD) for this Site on September 5, 2018. The
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`capital value of the work under ROD is valued at approximately $108 million. The
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`remedy requires the installation of a three-mile containment wall around the
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`perimeter of the facility, down to bedrock to prevent further migration of
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`contaminated groundwater to the Tennessee River; recovery of EDC non-aqueous
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`phase liquid (NAPL) from the source zone beneath the river; and monitored natural
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`attenuation of groundwater with some groundwater extraction and treatment.
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`23. On October 1, 2018, the EPA issued Special Notice Letters (SNLs) to
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`the three PRPs, Goodrich, PolyOne and Westlake, to initiate the negotiation of the
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`Remedial Design (RD) through the execution of an Administrative Order on
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`Consent (AOC).
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`6
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`GENERAL ALLEGATIONS
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`24. Releases of hazardous substances have occurred at the Site and
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`continue to occur at the Site since manufacturing operations began in the 1950s.
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`These releases have been associated directly with the manufacturing facilities at
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`the Site, ancillary features of the manufacturing facilities (i.e. process sewers and
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`chemical storage and transfer areas), and historical waste disposal practices.
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`Current releases of hazardous substances continue as the historically released
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`hazardous substances migrate into the soil, groundwater, and surface water,
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`including the Tennessee River. The hazardous substances identified in the RI are
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`chlorinated volatile organic compounds, EDC, benzene, naphthalene and mercury
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`which are “hazardous substances” within the meaning of Section 101(14) of
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`CERCLA, 42 U.S.C. § 9601(14).
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`25.
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`In overseeing the work at the Site the United States has incurred
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`response costs and will incur additional response costs in the future.
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`26.
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`The response costs incurred and to be incurred by the United States
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`are not inconsistent with the National Contingency Plan, which is codified at 40
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`C.F.R. Part 300. The United States’ response actions include, but are not limited
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`to, the oversight of the investigation of the Site and will include oversight of the
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`performance of the Remedial Action.
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`7
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`27.
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`The Site is a “facility” within the meaning of Section 101(9) of
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`CERCLA, 42 U.S.C. § 9601(9).
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`28.
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`There were and are “releases” and threatened “releases” of hazardous
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`substances at and from the Site into the environment, within the meaning of
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`Section 101(22) of CERCLA, 42 U.S.C. § 9601(22), and the Site poses threats or
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`potential threats to human health and/or the environment.
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`29. Goodrich is liable under CERCLA as the former owner and operator
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`of the Site at the time of disposal of hazardous substances at the Site, as defined by
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`Section 101(20) of CERCLA, 42 U.S.C. § 9601(20), and within the meaning of
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`Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2).
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`30. Westlake is liable under CERCLA as the current owner and operator
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`of a portion of the Site defined by Section 101(20) of CERCLA, 42 U.S.C. §
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`9601(20), and within the meaning of Section 107(a)(1) of CERCLA, 42 U.S.C. §
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`9607(a)(1).
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`31.
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`PolyOne is liable under CERCLA as the current owner and operator
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`of a portion of the Site (including the landfill along the eastern perimeter; the
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`RCRA closure cell; and Ponds 1A and 2) as defined by Section 101(20) of
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`CERCLA, 42 U.S.C. § 9601(20), and within the meaning of Section 107(a)(1) of
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`CERCLA, 42 U.S.C. § 9607(a)(1).
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`8
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`FIRST CLAIM FOR RELIEF
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`32.
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`Paragraphs 1-26 are realleged and incorporated herein by reference.
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`33.
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`Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), provides in
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`pertinent part:
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`In addition to any other action taken by a State or local government, when
`the President determines that there may be an imminent and substantial
`endangerment to the public health or welfare or the environment because of
`an actual or threatened release of a hazardous substance from a facility, he
`may require the Attorney General of the United States to secure such relief
`as may be necessary to abate such danger or threat, and the district court of
`the United States in the district in which the threat occurs shall have
`jurisdiction to grant such relief as the public interest and the equities of the
`case may require.
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`34.
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`By Executive Order 12580 of January 23, 1987, the President’s
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`functions under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), were delegated
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`to the Administrator of EPA.
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`35.
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`The United States has determined that there is or may be an imminent
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`and substantial endangerment to the public health or welfare or the environment
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`because of the release and threatened release of hazardous substances from the
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`Site.
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`36. Under Section 106 of CERCLA, 42 U.S.C. § 9606, Defendants are
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`liable for any remedial injunctive relief which may be required at the Site.
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`SECOND CLAIM FOR RELIEF
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`37.
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`Paragraphs 1-31 are realleged and incorporated herein by reference.
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`38.
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`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in
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`pertinent part:
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`(1) the owner and operator of a vessel or a facility,
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`(2) any person who at the time of disposal of any hazardous substance
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`owned or operated any facility at which such hazardous substances were
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`disposed of . . .
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`shall be liable for –
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`(A) all costs of removal or remedial action incurred by the United States
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`Government or a State not inconsistent with the national contingency plan… .
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`39.
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`Defendants are liable under Section 107(a) of CERCLA, 42 U.S.C.
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`§§ 9607(a)(2), as a person who currently owns a portion of the Site or as a person
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`which owned or operated a facility at the time at which hazardous substances were
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`disposed of.
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`40.
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`The United States has incurred and will continue to incur costs not
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`inconsistent with the National Contingency Plan to respond to the release or
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`threatened release of hazardous substances at the Site, or of hazardous substances
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`10
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`which came to be located at the Site, within the meaning of sections 101(23),
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`101(24), and 101(25) of CERCLA, 42 U.S.C. §§ 9601(23), (24), and (25).
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`41.
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`The United States is entitled to a declaratory judgment on liability
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`against Defendants, under Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2),
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`that will be binding in any subsequent action to recover further response costs
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`incurred by the United States in connection with the Site.
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`PRAYER FOR RELIEF
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`WHEREFORE, the United States respectfully request that the Court enter:
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`1. An order under Section 106 of CERCLA, 42 U.S.C. § 9606, requiring
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`Defendants to perform certain response actions that are necessary to abate the
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`danger or threat of a release of hazardous substances at or from the Site;
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`2. A declaratory judgment, under Section 113(g)(2) of CERCLA, 42 U.S.C.
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`§ 9613(g)(2), of Defendants’ liability, which will be binding in any subsequent
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`action against Defendants seeking to recover further response costs incurred by the
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`United States in connection with the Site; and
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`5. An order granting such other relief as the Court deems appropriate.
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`11
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`FOR THE UNITED STATES OF AMERICA
`Respectfully submitted,
`JONATHAN D. BRIGHTBILL
`Principal Deputy Assistant Attorney General
`Environment & Natural Resources Division
`
`ELLEN M. MAHAN
`Deputy Chief
`Environmental Enforcement Section
`Environment and Natural Resources Division
`
`RUSSELL M. COLEMAN
`United States Attorney
`
`WILLIAM F. CAMPBELL
`Assistant U.S. Attorney
`717 West Broadway
`Louisville, KY 40202
`502-582-5911
`bill.campbell@usdoj.gov
`
`
`
`__________________________ __________________________
`
`KARL J. FINGERHOOD(PA Bar ID No. 63260)KARL J FINGERHOOD(PAB
`Senior Counsel
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`P.O. Box 7611
`Washington, DC 20044-7611
`202-514-7519
`karl.fingerhood@usdoj.gov
`
`Sept. 17, 2020
`Date
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`OF COUNSEL FOR THE UNITED STATES OF AMERICA:
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`KIM A. JONES
`Assistant Regional Counsel
`U.S. Environmental Protection Agency
`Region 4
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`12
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