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Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 1 of 12 PageID #: 1
`
`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. _________
`
`))
`
`))
`
`)
`
`Defendants.
`
`COMPLAINT
`
`The United States of America (“United States”), by authority of the Attorney
`
`General of the United States and through the undersigned attorneys, acting at the
`
`request of the Administrator of the United States Environmental Protection Agency
`
`(“EPA” or “Plaintiff”), and allege as follows:
`
`STATEMENT OF THE ACTION
`
`1.
`
`This is a civil action by the United States of America for injunctive
`
`relief and recovery of response costs incurred or to be incurred under
`
`Sections 106(a) and 107(a) of the Comprehensive Environmental Response,
`
`Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C.
`
`
`
`1
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 2 of 12 PageID #: 2
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`§§ 9606(a) and 9607(a), related to the releases and threatened releases of
`
`hazardous substances at the B.F. Goodrich Superfund Site in Calvert City,
`
`Marshall County, Kentucky (the “Site”).
`
`2.
`
`This civil action also seeks a declaratory judgment under section
`
`113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), that each Defendant is jointly and
`
`severally liable to the United States for future response costs that it incurs that is
`
`not inconsistent with the NCP in responding to releases and threatened releases of
`
`hazardous substances at, beneath, and/or related to the Site.
`
`3.
`
`The United States has incurred response costs and expects to continue
`
`to incur response costs in connection with actions taken in response to releases
`
`and/or threatened releases of hazardous substances at the Site.
`
`4.
`
`Goodrich Corporation, (formerly The B.F. Goodrich Company),
`
`Westlake Vinyls, Incorporated, and PolyOne Corporation are among the parties the
`
`Plaintiff has determined to be potentially responsible parties (PRPs) for the Site.
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has jurisdiction over the subject matter of this action and
`
`over Defendants under 28 U.S.C. §§ 1331, 1367, and 1345; CERCLA Sections
`
`106, 107, and 113(b), 42 U.S.C. §§ 9606, 9607, and 9613(b).
`
`
`
`2
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 3 of 12 PageID #: 3
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`6.
`
`Venue is proper in this district under Sections 106(a) and 113(b) of
`
`CERCLA, 42 U.S.C. §§ 9606(a) and 9613(b), because the claims arose, and/or the
`
`threatened and actual releases of hazardous substances occurred, in the Western
`
`District of Kentucky.
`
`PLAINTIFF
`
`7.
`
`The Plaintiff the United States of America is acting at the request of
`
`EPA, an agency of the United States.
`
`DEFENDANTS
`
`8.
`
`The defendants to this action (collectively “Defendants”) are the
`
`Goodrich Corporation (“Goodrich”), Westlake Vinyls Incorporated (“Westlake”),
`
`and PolyOne Corporation (“PolyOne”).
`
`9.
`
`Goodrich was a New York corporation with its principal place of
`
`business in Charlotte, North Carolina. In 2011, Goodrich was acquired by United
`
`Technologies Corporation (“UTC”). In April 2020, UTC merged with the
`
`Raytheon Corporation to form Raytheon Technologies.
`
`10. Westlake is a Delaware corporation with its principal place of
`
`business in Houston, Texas.
`
`
`
`3
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 4 of 12 PageID #: 4
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`11.
`
`PolyOne is an Ohio corporation with its principal place of business
`
`in Avon Lake, Ohio.
`
`12.
`
`Each of the Defendants is a “person” within the meaning of Section
`
`101(21) of CERCLA, 42 U.S.C. § 9601(21).
`
`THE SITE
`
`Background of Chemical Operations
`
`13. Goodrich Corporation acquired farmland in Calvert, City, Kentucky in
`
`1951 to construct and operate a chemical manufacturing facility.
`
`14.
`
`In the 1950s, Goodrich constructed its initial chemical manufacturing
`
`plants at the Site.
`
`15. Goodrich initiated operations at the Site in 1953, with the production
`
`of vinyl chloride monomer (“VCM”) through a reaction of acetylene and hydrogen
`
`chloride.
`
`16.
`
`In the 1960s, Goodrich built additional chemical processing plants at
`
`the Site and switched from using an acetylene-based VCM production to an
`
`ethylene-based VCM production (“EDC”).
`
`17.
`
`In the 1960s through the 1980s, Goodrich continued to expand its
`
`chemical processing operations and make changes to its processes, including
`
`
`
`4
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 5 of 12 PageID #: 5
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`building a chlorine plant, shutting down its acrylonitrile plant, and installing
`
`wastewater ponds to eliminate waste discharge.
`
`18.
`
`In 1990, Goodrich sold its EDC facilities to Westlake Monomers
`
`Corporation, which upon information and belief is now a part of Westlake Vinyl.
`
`19.
`
`In 1997, Goodrich sold its chlorine and ethylene plants to Westlake
`
`CA&O Corporation, which upon information and belief is now a part of Westlake
`
`Vinyl.
`
`20.
`
`In 2007, Goodrich transferred title of its remaining property at the Site
`
`(comprised entirely of non-manufacturing areas) to PolyOne Corporation.
`
`Disposal of Hazardous Substances
`
`21. Until 2009, the Kentucky Department of Environmental Protection
`
`(KDEP) managed most of the environmental response for the Site under the
`
`Resource Conservation and Recovery Act (RCRA). Prior to 2009, the Superfund
`
`response only focused on the B.F. Goodrich landfill and burn pit area adjacent to
`
`the operating plant area which had been added to the National Priorities List (NPL)
`
`in 1984.1 As EPA and KDEP’s understanding of the magnitude of contamination
`
`
`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.
`
`
`
`
`
`5
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 6 of 12 PageID #: 6
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`increased, in 2009, KDEP requested that the EPA expand the scope of the
`
`Superfund response, specifically by expanding the NPL listing to include the rest
`
`of the B.F. Goodrich (now owned by Westlake Vinyls, Incorporated) operating
`
`plant area previously managed by KDEP under RCRA.
`
`22. After the Defendants completed the Remedial
`
`Investigation/Feasibility Study (RI/FS) for the Site in 2017, the EPA Administrator
`
`signed the Record of Decision (ROD) for this Site on September 5, 2018. The
`
`capital value of the work under ROD is valued at approximately $108 million. The
`
`remedy requires the installation of a three-mile containment wall around the
`
`perimeter of the facility, down to bedrock to prevent further migration of
`
`contaminated groundwater to the Tennessee River; recovery of EDC non-aqueous
`
`phase liquid (NAPL) from the source zone beneath the river; and monitored natural
`
`attenuation of groundwater with some groundwater extraction and treatment.
`
`23. On October 1, 2018, the EPA issued Special Notice Letters (SNLs) to
`
`the three PRPs, Goodrich, PolyOne and Westlake, to initiate the negotiation of the
`
`Remedial Design (RD) through the execution of an Administrative Order on
`
`Consent (AOC).
`
`
`
`6
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 7 of 12 PageID #: 7
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`GENERAL ALLEGATIONS
`
`24. Releases of hazardous substances have occurred at the Site and
`
`continue to occur at the Site since manufacturing operations began in the 1950s.
`
`These releases have been associated directly with the manufacturing facilities at
`
`the Site, ancillary features of the manufacturing facilities (i.e. process sewers and
`
`chemical storage and transfer areas), and historical waste disposal practices.
`
`Current releases of hazardous substances continue as the historically released
`
`hazardous substances migrate into the soil, groundwater, and surface water,
`
`including the Tennessee River. The hazardous substances identified in the RI are
`
`chlorinated volatile organic compounds, EDC, benzene, naphthalene and mercury
`
`which are “hazardous substances” within the meaning of Section 101(14) of
`
`CERCLA, 42 U.S.C. § 9601(14).
`
`25.
`
`In overseeing the work at the Site the United States has incurred
`
`response costs and will incur additional response costs in the future.
`
`26.
`
`The response costs incurred and to be incurred by the United States
`
`are not inconsistent with the National Contingency Plan, which is codified at 40
`
`C.F.R. Part 300. The United States’ response actions include, but are not limited
`
`to, the oversight of the investigation of the Site and will include oversight of the
`
`performance of the Remedial Action.
`
`
`
`7
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 8 of 12 PageID #: 8
`
`27.
`
`The Site is a “facility” within the meaning of Section 101(9) of
`
`CERCLA, 42 U.S.C. § 9601(9).
`
`28.
`
`There were and are “releases” and threatened “releases” of hazardous
`
`substances at and from the Site into the environment, within the meaning of
`
`Section 101(22) of CERCLA, 42 U.S.C. § 9601(22), and the Site poses threats or
`
`potential threats to human health and/or the environment.
`
`29. Goodrich is liable under CERCLA as the former owner and operator
`
`of the Site at the time of disposal of hazardous substances at the Site, as defined by
`
`Section 101(20) of CERCLA, 42 U.S.C. § 9601(20), and within the meaning of
`
`Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2).
`
`30. Westlake is liable under CERCLA as the current owner and operator
`
`of a portion of the Site defined by Section 101(20) of CERCLA, 42 U.S.C. §
`
`9601(20), and within the meaning of Section 107(a)(1) of CERCLA, 42 U.S.C. §
`
`9607(a)(1).
`
`31.
`
`PolyOne is liable under CERCLA as the current owner and operator
`
`of a portion of the Site (including the landfill along the eastern perimeter; the
`
`RCRA closure cell; and Ponds 1A and 2) as defined by Section 101(20) of
`
`CERCLA, 42 U.S.C. § 9601(20), and within the meaning of Section 107(a)(1) of
`
`CERCLA, 42 U.S.C. § 9607(a)(1).
`
`
`
`8
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 9 of 12 PageID #: 9
`
`FIRST CLAIM FOR RELIEF
`
`32.
`
`Paragraphs 1-26 are realleged and incorporated herein by reference.
`
`33.
`
`Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), provides in
`
`pertinent part:
`
`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.
`
`34.
`
`By Executive Order 12580 of January 23, 1987, the President’s
`
`functions under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), were delegated
`
`to the Administrator of EPA.
`
`35.
`
`The United States has determined that there is or may be an imminent
`
`and substantial endangerment to the public health or welfare or the environment
`
`because of the release and threatened release of hazardous substances from the
`
`Site.
`
`36. Under Section 106 of CERCLA, 42 U.S.C. § 9606, Defendants are
`
`liable for any remedial injunctive relief which may be required at the Site.
`
`
`
`9
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 10 of 12 PageID #: 10
`
`SECOND CLAIM FOR RELIEF
`
`37.
`
`Paragraphs 1-31 are realleged and incorporated herein by reference.
`
`38.
`
`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in
`
`pertinent part:
`
`(1) the owner and operator of a vessel or a facility,
`
`(2) any person who at the time of disposal of any hazardous substance
`
`owned or operated any facility at which such hazardous substances were
`
`disposed of . . .
`
`shall be liable for –
`
`(A) all costs of removal or remedial action incurred by the United States
`
`Government or a State not inconsistent with the national contingency plan… .
`
`39.
`
`Defendants are liable under Section 107(a) of CERCLA, 42 U.S.C.
`
`§§ 9607(a)(2), as a person who currently owns a portion of the Site or as a person
`
`which owned or operated a facility at the time at which hazardous substances were
`
`disposed of.
`
`40.
`
`The United States has incurred and will continue to incur costs not
`
`inconsistent with the National Contingency Plan to respond to the release or
`
`threatened release of hazardous substances at the Site, or of hazardous substances
`
`
`
`10
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 11 of 12 PageID #: 11
`
`which came to be located at the Site, within the meaning of sections 101(23),
`
`101(24), and 101(25) of CERCLA, 42 U.S.C. §§ 9601(23), (24), and (25).
`
`41.
`
`The United States is entitled to a declaratory judgment on liability
`
`against Defendants, under Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2),
`
`that will be binding in any subsequent action to recover further response costs
`
`incurred by the United States in connection with the Site.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the United States respectfully request that the Court enter:
`
`1. An order under Section 106 of CERCLA, 42 U.S.C. § 9606, requiring
`
`Defendants to perform certain response actions that are necessary to abate the
`
`danger or threat of a release of hazardous substances at or from the Site;
`
`2. A declaratory judgment, under Section 113(g)(2) of CERCLA, 42 U.S.C.
`
`§ 9613(g)(2), of Defendants’ liability, which will be binding in any subsequent
`
`action against Defendants seeking to recover further response costs incurred by the
`
`United States in connection with the Site; and
`
`5. An order granting such other relief as the Court deems appropriate.
`
`
`
`11
`
`

`

`Case 5:20-cv-00154-TBR Document 1 Filed 09/17/20 Page 12 of 12 PageID #: 12
`
`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
`
`
`
`
`
`
`
`
`
`OF COUNSEL FOR THE UNITED STATES OF AMERICA:
`
`KIM A. JONES
`Assistant Regional Counsel
`U.S. Environmental Protection Agency
`Region 4
`
`
`
`12
`
`

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