throbber

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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`FOURTH DIVISION
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`) Civil Action No. ________________
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`MARIA MAUCERE,
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`AYRA BROWN,
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`JEAN THOEN, and
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`CLARK B. SEIFERT,
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`Defendants.
`_______________________________________)
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`The United States of America, by the authority of the Attorney General of the United
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`COMPLAINT
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`States and through the undersigned attorneys, acting on behalf of the Administrator of the
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`United States Environmental Protection Agency (“EPA”), files this Complaint seeking
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`access to the yards of three parcels of residential real property (“Three Properties”) located
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`within the South Minneapolis Residential Soil Contamination Superfund Site (“Site”) in
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`Minneapolis, Minnesota, and alleges as follows:
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`Nature of Action
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`1.
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`The Three Properties that are the subject of this Complaint are located at
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`1318 23rd Street East, 1419 21st Street East, and 2609 22nd Street East, all in Minneapolis,
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`Hennepin County, Minnesota. EPA seeks access to the Three Properties to clean up soil
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`that is contaminated with arsenic at those locations.
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 2 of 16
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`2.
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`This is a civil action brought by the United States pursuant to Section 104(e)
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`of the Comprehensive Environmental Response, Compensation, and Liability Act
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`(“CERCLA”), as amended, 42 U.S.C. § 9604(e), against individuals with ownership
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`interests in those properties: Defendants Maria Maucere, Ayra Brown, Jean Thoen, and
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`Clark B. Seifert (collectively, the “Defendants”). EPA has been unable to obtain consent
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`for access to remediate remaining contaminated areas in the yards of the Three Properties.
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`Through this action, the United States seeks orders (“Access Orders”) providing EPA and
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`its designated representatives with a right of access to the Three Properties for the purpose
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`of excavating the contaminated soil and replacing it with clean soil, conducting
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`confirmatory soil sampling, preparing for and disposing of the contaminated soil off-site,
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`restoring each property through placement of sod and replacement of landscaping removed
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`during the excavation, maintaining the grass and landscaping for a period of 30 days, and
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`conducting other associated activities.
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`Jurisdiction and Venue
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`3.
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`This Court has exclusive jurisdiction over the subject matter of this action
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`and personal jurisdiction over the Defendants under CERCLA Section 113(b), 42 U.S.C.
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`§ 9613(b), and 28 U.S.C. §§ 1331 and 1345.
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`4.
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`Venue is proper in this judicial district pursuant to Section 113(b) of
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`CERCLA, 42 U.S.C. § 9613(b), and 28 U.S.C. § 1391(b), because the release or threatened
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`release of a hazardous substance or substances that gives rise to this claim occurred and is
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`occurring in this district and the Three Properties are located within this district.
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`2
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 3 of 16
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`Defendants
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`5.
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`David Zeleznikar is the owner of record for 1318 23rd Street East, according
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`to Hennepin County Assessor records. Mr. Zeleznikar died in 2013 and transferred the
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`property upon his death to Maria Maucere and Ayra Brown, as joint tenants.
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`6.
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`Jean Thoen is the owner of record for 1419 21st Street East, according to
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`Hennepin County Assessor records.
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`7.
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`Clark B. Seifert et al. is the owner of record for 2609 22nd Street East,
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`according to Hennepin County Assessor records.
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`Statutory Background
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`8.
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`CERCLA Section 104, 42 U.S.C. § 9604, grants EPA broad authority to
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`obtain access to property for its employees and authorized representatives to identify and
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`address potential releases or threatened releases of hazardous substances.
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`9.
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`CERCLA Section 104(e) provides in pertinent part:
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`(e) Information gathering and access
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`(1) Action authorized
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`the
`Any officer, employee, or representative of
`President . . . is authorized to take action under
`paragraph (2), (3), or (4) (or any combination thereof)
`at a vessel, facility, establishment, place, property, or
`location . . . . The authority of paragraphs (3) and (4)
`may be exercised only if there is a reasonable basis to
`believe there may be a release or threat of release of a
`hazardous substance or pollutant or contaminant. The
`authority of this subsection may be exercised only for
`the purposes of determining the need for response, or
`choosing or taking any response action under this
`subchapter, or otherwise enforcing the provisions of this
`subchapter.
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`3
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 4 of 16
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`* * *
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`(3) Entry
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`Any officer, employee, or representative described in
`paragraph (1) is authorized to enter at reasonable times
`any of the following:
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`(A) Any vessel, facility, establishment, or other place or
`property where any hazardous substance or pollutant or
`contaminant may be or has been generated, stored,
`treated, disposed of, or transported from.
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`(B) Any vessel, facility, establishment, or other place or
`property from which or to which a hazardous substance
`or pollutant or contaminant has been or may have been
`released.
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`(C) Any vessel, facility, establishment, or other place or
`property where such release is or may be threatened.
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`(D) Any vessel, facility, establishment, or other place or
`property where entry is needed to determine the need
`for response or the appropriate response or to effectuate
`a response action under this subchapter.
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`42 U.S.C. § 9604(e) (emphasis added).
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`10. CERCLA Section 104(e)(4), 42 U.S.C. § 9604(e)(4), also authorizes any
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`officer, employee or representative designated under CERCLA Section 104(e)(1), 42
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`U.S.C. § 9604(e)(1), to inspect and obtain samples from any facility, establishment, or
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`other place or property referred to in CERCLA Section 104(e)(3), 42 U.S.C. § 9604(e)(3),
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`or from any location of any suspected hazardous substance or pollutant or contaminant.
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`11. CERCLA Section 104(a)(1), 42 U.S.C. § 9604(a)(1), provides that whenever
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`there is a release or substantial threat of release of a hazardous substance into the
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`environment, EPA “is authorized to act, consistent with the national contingency plan, to
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`4
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 5 of 16
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`remove or arrange for the removal of, and provide for remedial action relating to such
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`hazardous substance . . . or take any other response measure consistent with the national
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`contingency plan” that EPA deems necessary to protect the public health or welfare or the
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`environment.
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`12. CERCLA Section 104(e)(5)(B), 42 U.S.C. § 9604(e)(5)(B), provides that the
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`United States may commence a civil action either to compel compliance with a request for
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`access or to compel compliance with an administrative order for access. The statute
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`provides that, where there is a reasonable basis to believe there may be a release or threat
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`of a release of a hazardous substance, pollutant, or contaminant, the court “shall enjoin”
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`interference with an EPA request or order for entry “unless under the circumstances of the
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`case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion,
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`or otherwise not in accordance with law.” 42 U.S.C. § 9604(e)(5)(B)(i).
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`13. CERCLA Section 104(e)(6), 42 U.S.C. § 9604(e)(6), provides that nothing
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`in CERCLA Section 104(e) shall preclude EPA from securing access in any other lawful
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`manner.
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`14.
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`General Allegations
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`Paragraphs 1 through 13 are re-alleged and incorporated herein by reference.
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`The Site
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`15.
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`The Three Properties are located within the 1,480 acre South Minneapolis
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`Residential Soil Contamination Superfund Site, which is located in the area surrounding
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`the former CMC Heartland property (also known as the Heartland Lite Yard property) at
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`Hiawatha Avenue and 28th Street in Minneapolis.
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`5
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 6 of 16
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`16.
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`The Site encompasses all residential homes within a three-quarter-mile
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`radius of the former CMC Heartland property.
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`17. At the CMC Heartland property, arsenic was used to manufacture herbicides
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`and pesticides over a 25-year period until at least 1963. Those historic operations at the
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`source area led to arsenic contamination of surrounding residential parcels, primarily
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`through wind dispersion.
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`Prior Response Actions
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`18. Beginning in May 2004, EPA, its contractors, and the Minnesota Department
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`of Agriculture began sampling the residential properties at the Site to evaluate levels of
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`arsenic contamination. The efforts at the Site, including the efforts to obtain access to the
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`Three Properties, were performed by EPA, on EPA’s behalf by its contractors, and/or by
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`the Minnesota Department of Agriculture, which has been working with EPA on access
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`efforts. This Complaint refers to efforts by those three entities collectively as “EPA.”
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`19.
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`From 2004 through 2008, EPA also began excavating and removing arsenic-
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`contaminated soils at some of the most highly contaminated residential properties at the
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`Site, as identified through the sampling program.
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`20.
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`In September 2007, EPA placed the Site on the National Priorities List of
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`sites where known releases or threatened release of hazardous substances, pollutants, or
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`contaminants require remediation.
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`21.
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`In 2007, EPA completed its Remedial Investigation for the Site, determining
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`that arsenic was present in soils throughout the neighborhood at levels unsafe for human
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`health.
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`6
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 7 of 16
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`22.
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`EPA issued its Record of Decision for the Site in September 2008, selecting
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`the following remedy:
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`a. Inventory and document the existing conditions of the areas requiring the
`remedy.
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`b. For those yards with contamination exceeding the Remedial Action Level of
`25 milligrams per kilogram (“mg/kg”) arsenic in surface soils, excavate soil
`(to a depth of 12 inches below grade in yards, and to a depth of 18 inches
`below grade in garden areas).
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`c. Conduct post-excavation soil sampling to document the concentrations in the
`remaining soils.
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`d. If the samples at the base of the excavation exceeded the deep soil arsenic
`Remedial Action Level, 95 mg/kg, continue excavation until the deep soil
`cleanup standard is met, or to a maximum depth of ten feet.
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`e. If the samples at the base of the excavation exceeded the deep soil arsenic
`cleanup standard, place a permeable and permanent high visibility marker
`layer in the bottom of the excavation.
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`f. Backfill excavation areas with clean fill and topsoil to the original grade.
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`g. Restore the excavated areas (i.e., restore vegetation by seeding the final
`graded surface and plant replacement plants identified prior to excavation
`during an inventory).
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`h. Arrange for appropriate disposal of the excavated soils.
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`
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`i. If cleanup standards are not obtained at the bottom of the excavation, place
`institutional controls on the land in the form of use restrictions to define areas
`of remaining concern or zoning and permit requirements to limit exposure.
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`EPA secured access to sample the vast majority of the yards through
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`23.
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`voluntary access agreements with the owners.
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`24.
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`EPA has now sampled all of the nearly 3,700 properties at the Site and has
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`cleaned up arsenic-containing soil at more than 600 properties that had contamination
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`exceeding the Remedial Action Levels.
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`7
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 8 of 16
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`25.
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`The final samples were taken in June 2020, after the U.S. Department of
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`Justice filed an application for administrative warrants in April 2020 for four properties
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`whose owners had not consented to access for sampling. After the United States filed the
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`application, the owners of two properties consented to access. As a result, Judge Bowbeer
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`issued warrants for the two remaining properties in May 2020. In the Matter of: South
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`Minneapolis Residential Soil Contamination Superfund Site, No. 20-mc-33 (D. Minn.),
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`ECF #s 1, 17, 18. The owner of one of the two properties where a warrant had been issued
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`then consented to sampling. EPA completed the soil sampling collection for the four
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`properties, as well as one property for which consent had been obtained prior to the
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`application, in June 2020. In August 2020, results from the laboratory analysis of the soil
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`revealed no contamination exceeding the Remedial Action Levels at the newly sampled
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`properties.
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`26.
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`Thus, since none of the recently sampled properties needs to be remediated,
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`EPA now seeks to remediate the three remaining properties that still need remediation so
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`it can finish its work at the Site.
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`27.
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`In June 2020, EPA renewed its efforts to contact the owners of the Three
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`Properties in need of remediation to secure access. None of the owners signed voluntary
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`access agreements.
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`28.
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`EPA obtained consent from the owner to remediate a fourth property, but that
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`owner passed away in October 2020. EPA seeks to obtain updated consent to remediate
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`the property. That property is therefore currently not the subject of this case.
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`8
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 9 of 16
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`The Need for Access to the Three Properties by EPA and its Representatives
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`29. Arsenic is a hazardous substance within the meaning of CERCLA § 101(14),
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`42 U.S.C. § 9601(14).
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`30.
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`To protect public health, public welfare, and the environment, EPA and its
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`representatives must access the Three Properties to conduct soil remediation consistent
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`with the requirements of the 2008 Record of Decision.
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`EPA’s Efforts to Obtain Consent for Access to the Three Properties
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`31.
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`Since 2006 in the case of the 2609 22nd Street East property and since 2008
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`for the other two properties, EPA has made efforts to secure voluntary access agreements
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`with the owners of the Three Properties.
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`32.
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`EPA identified the owners and attempted to secure access agreements
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`through property visits, mailings, and outreach to any available phone numbers or emails.
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`33.
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`EPA successfully secured voluntary access agreements from the vast
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`majority of the owners of the residential properties in the Site.
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`34. Over the course of many years of effort by EPA, the list of properties where
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`owners have not approved access for remediation has been reduced to the Three Properties.
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`35.
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`EPA employees generally pursued the following steps to attempt to secure
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`access to each of the Three Properties: (1) they confirmed and re-confirmed the current
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`owners in the Hennepin County property records, most recently in September 2020; (2)
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`they called available phone numbers of owners, leaving voicemails where possible;
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`(3) they sent several certified, “return receipt requested” mailings to the owners of the
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 10 of 16
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`Three Properties; and (4) they visited the properties, leaving information packets and blank
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`access agreements with stamped, return-addressed envelopes.
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`Entities in Need of Access to the Three Properties
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`36.
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`The work will be conducted through EPA.
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`First Claim for Relief: Access Order for 1318 23rd Street East
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`Paragraphs 1 through 36 are re-alleged and incorporated by reference.
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`The owner at the time of EPA’s original attempts to gain access to the
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`37.
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`38.
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`property located at 1318 23rd Street East was David Zeleznikar, who died in 2013.
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`Hennepin County property records still identify Mr. Zeleznikar as the owner, but a Transfer
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`on Death Deed filed by Mr. Zeleznikar with Hennepin County in July 2013 specifies that
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`the property was conveyed upon his death to Maria Maucere and Ayra Brown as joint
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`tenants.
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`39.
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`Laboratory analysis of soil samples collected from the property in 2006
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`established that soil in the front, back, and side yards of the property contained
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`concentrations of arsenic that exceed the Remedial Action Levels established in EPA’s
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`2008 Record of Decision. In 2009, with Mr. Zeleznikar’s consent, EPA cleaned up the
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`contaminated soils in the front and side yards. Mr. Zeleznikar denied access to clean up
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`the contaminated soil in his back yard.
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`40.
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`In 2016, 2019, and 2020, EPA sent letters to the property requesting access
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`to remediate the contaminated soils at the property. Ms. Maucere refused access in writing
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`in June 2019 and June 2020.
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 11 of 16
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`41.
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`EPA has attempted to obtain voluntary access to the property, but despite the
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`efforts described in Paragraph 40, Ms. Maucere has denied access to EPA and its
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`representatives to remediate contaminated soil in the back yard at 1318 23rd Street East.
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`42.
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`EPA seeks access to 1318 23rd Street East, which is a facility, establishment,
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`or other place or property: (a) from which or to which a hazardous substance or pollutant
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`or contaminant has been or may have been released; (b) where a further release of a
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`hazardous substance is or may be threatened; and (c) where entry is needed to determine
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`the need for response or the appropriate response or to effectuate a response action.
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`CERCLA §§ 104(e)(3)(B)-(D), 42 U.S.C. §§ 9604(e)(3)(B)-(D).
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`43.
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`EPA and its representatives should be granted access to 1318 23rd Street East
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`for the purpose of remediating the arsenic-contaminated soil in the back yard, including
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`excavating the contaminated soil and replacing it with clean soil, conducting confirmatory
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`soil sampling, preparing for and disposing of the contaminated soil off-site, restoring the
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`property through placement of sod and replacement of landscaping removed during the
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`excavation, maintaining the grass and landscaping for a period of 30 days, and conducting
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`other associated activities.
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`Second Claim for Relief: Access Order for 1419 21st Street East
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`Paragraphs 1 through 36 are re-alleged and incorporated by reference.
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`Jean Thoen has owned the property located at 1419 21st Street East since
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`44.
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`45.
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`EPA’s efforts to obtain access began in 2008. She remains the owner of record through
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`EPA’s latest check of County records in September 2020.
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 12 of 16
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`46. Ms. Thoen initially gave consent for sampling of her front and back yard in
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`2008.
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`47.
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`Laboratory analysis of soil samples collected from the property in 2008
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`established that soil in the front and back yards of the property contains concentrations of
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`arsenic that exceed the Remedial Action Levels established in EPA’s 2008 Record of
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`Decision.
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`48.
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`In 2011, 2016, and 2020, EPA sent letters to Ms. Thoen requesting access to
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`remediate contaminated soils at the property.
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`49.
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`EPA has attempted to obtain voluntary access to the property, but despite the
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`efforts described in Paragraph 48, Ms. Thoen has not granted EPA and its representatives
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`access to remediate contaminated soil at 1419 21st Street East.
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`50.
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`EPA seeks access to 1419 21st Street East, which is a facility, establishment,
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`or other place or property: (a) from which or to which a hazardous substance or pollutant
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`or contaminant has been or may have been released; (b) where a further release of a
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`hazardous substance is or may be threatened; and (c) where entry is needed to determine
`
`the need for response or the appropriate response or to effectuate a response action.
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`CERCLA §§ 104(e)(3)(B)-(D), 42 U.S.C. §§ 9604(e)(3)(B)-(D).
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`51.
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`EPA and its representatives should be granted access to 1419 21st Street East
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`for the purpose of remediating the front and back yards, including excavating the
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`contaminated soil and replacing it with clean soil, conducting confirmatory soil sampling,
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`preparing for and disposing of the contaminated soil off-site, restoring the property through
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`placement of sod and replacement of landscaping removed during the excavation,
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`12
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 13 of 16
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`maintaining the grass and landscaping for a period of 30 days, and conducting other
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`associated activities.
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`Third Claim for Relief: Access Order for 2609 22nd Street East
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`52.
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`Paragraphs 1 through 36 are re-alleged and incorporated by reference.
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`53. Clark B. Seifert has owned the property located at 2609 22nd Street East
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`since EPA’s efforts to obtain access began in 2006. The County records refer to the owner
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`name as “CLARK B SEIFERT ET AL” and the taxpayer name as “CLARK B SEIFERT.”
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`He remains the owner of record through EPA’s latest check of County records in
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`September 2020.
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`54.
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`Laboratory analysis of soil samples collected from the property in 2008
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`established that soil in both the front and back yards of 2609 22nd Street East contains
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`concentrations of arsenic that exceed the Remedial Action Levels established in EPA’s
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`2008 Record of Decision.
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`55.
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`In 2016 and 2020, EPA sent letters to Mr. Seifert requesting access to
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`remediate the contaminated soils at the property. Mr. Seifert denied access verbally in
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`April 2016 and in writing in June 2020.
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`56.
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`EPA has attempted to obtain voluntary access to the property, but despite the
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`efforts described in Paragraph 55, Mr. Seifert has denied access to EPA and its
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`representatives to remediate contaminated soil at 2609 22nd Street East.
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`57.
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`EPA seeks access to 2609 22nd Street East, which is a facility, establishment,
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`or other place or property: (a) from which or to which a hazardous substance or pollutant
`
`or contaminant has been or may have been released; (b) where a further release of a
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 14 of 16
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`hazardous substance is or may be threatened; and (c) where entry is needed to determine
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`the need for response or the appropriate response or to effectuate a response action.
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`CERCLA §§ 104(e)(3)(B)-(D), 42 U.S.C. §§ 9604(e)(3)(B)-(D).
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`58.
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`EPA and its representatives should be granted access to 2609 22nd Street
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`East for the purpose of remediating both the front and back yards, including excavating the
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`contaminated soil and replacing it with clean soil, conducting confirmatory soil sampling,
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`preparing for and disposing of the contaminated soil off-site, restoring the property through
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`placement of sod and replacement of landscaping removed during the excavation,
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`maintaining the grass and landscaping for a period of 30 days, and conducting other
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`associated activities.
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`Prayer for Relief
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`WHEREFORE, Plaintiff the United States of America respectfully requests this Court to:
`
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`Issue an Access Order granting EPA and its designated representatives
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`1.
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`access to 1318 23rd Street East for 90 days from the date that work begins at that property
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`in order to remediate the back yard, including excavating the contaminated soil and
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`replacing it with clean soil, conducting confirmatory soil sampling, preparing for and
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`disposing of the contaminated soil off-site, restoring the property through placement of sod
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`and replacement of landscaping removed during the excavation, maintaining the grass and
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`landscaping for a period of 30 days, and conducting other associated activities.
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`2.
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`In the Access Order requested in Paragraph 1, enjoin Defendants Maria
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`Maucere and Ayra Brown from any interference with EPA’s access to the property during
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`the remediation.
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 15 of 16
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`3.
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`Issue an Access Order granting EPA and its designated representatives
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`access to 1419 21st Street East for 90 days from the date that work begins at that property
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`in order to remediate the front and back yards, including excavating the contaminated soil
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`and replacing it with clean soil, conducting confirmatory soil sampling, preparing for and
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`disposing of the contaminated soil off-site, restoring the property through placement of sod
`
`and replacement of landscaping removed during the excavation, maintaining the grass and
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`landscaping for a period of 30 days, and conducting other associated activities.
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`4.
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`In the Access Order requested in Paragraph 3, enjoin Defendant Jean Thoen
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`from any interference with EPA’s access to the property during the remediation.
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`5.
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`Issue an Access Order granting EPA and its designated representatives
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`access to 2609 22nd Street East for 90 days from the date that work begins at that property
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`in order to remediate both the front and back yards, including excavating the contaminated
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`soil and replacing it with clean soil, conducting confirmatory soil sampling, preparing for
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`and disposing of the contaminated soil off-site, restoring the property through placement
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`of sod and replacement of landscaping removed during the excavation, maintaining the
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`grass and landscaping for a period of 30 days, and conducting other associated activities.
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`6.
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`In the Access Order requested in Paragraph 5, enjoin Defendant Clark B.
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`Seifert from any interference with EPA’s access to the property during the remediation.
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`CASE 0:21-cv-00345-MJD-HB Doc. 1 Filed 02/05/21 Page 16 of 16
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`7.
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`Grant such other relief as this Court deems appropriate.
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`Date: February 5, 2021
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`OF COUNSEL:
`THOMAS KRUEGER
`Associate Regional Counsel
`U.S. EPA Region 5
`77 W. Jackson Blvd.
`Chicago, IL 60604
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`
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`Respectfully Submitted,
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`PATRICIA A. McKENNA
`
`Assistant Section Chief
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`Environment and Natural Resources Division
`
`United States Department of Justice
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` /s Anna E. Cross
`ANNA E. CROSS
`Senior Counsel
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`P.O. Box 7611
`Washington, DC 20044-7611
`Telephone: 202-514-1671
`Email: Anna.Cross@usdoj.gov
`
`
`ERICA H. MacDONALD
`United States Attorney
`District of Minnesota
`
`/s Friedrich A. P. Siekert
`FRIEDRICH A. P. SIEKERT
`Assistant U.S. Attorney
`Attorney ID Number 142013
`600 United States Courthouse
`300 South Fourth Street
`Minneapolis, MN 55415
`Telephone: 612-664-5600
`Email: Fred.Siekert@usdoj.gov
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`16
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