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IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
`SOUTHWESTERN DIVISION
`
`UNITED STATES OF AMERICA,
`
`)
`)
`)
`Plaintiff,
`)
`
`
`
`
`
`
`
`)
`
`
`
`
`
`
`v.
`)
`
`
`
`
`
`
`
`)
`
`PATRICIA R. WEST, RONALD WEST
`d/b/a RGW SALES & SERVICE, and RANDY C. )
`PENDERGRAFT,
`)
`)
`)
`
`Defendants.
`
`Civil No.3:22-cv-5002
`
`COMPLAINT
`
`The United States of America, by the 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”), files this Complaint seeking access to
`
`properties owned and/or controlled by Defendants that are contaminated with mining waste (the
`
`“Properties”), and alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action under Section 104(e) of the Comprehensive Environmental
`
`Response, Compensation, and Liability Act (“CERCLA”), as amended, 42 U.S.C. § 9604(e). The
`
`Properties are part of the Oronogo/Duenweg Mining Belt Superfund Site, a large Superfund site
`
`that is contaminated with mining waste. The mining waste has high levels of lead, cadmium, and
`
`zinc, which are hazardous to human health and the environment. The United States Environmental
`
`Protection Agency (“EPA”) has completed cleanup of mining wastes on properties owned by
`
`others in the vicinity of the Properties. EPA was unable to clean up mining waste on the Properties
`
`because Defendants have refused, and continue to refuse, to allow EPA access. Defendants’
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 1 of 14
`
`1
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`

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`refusal to grant access prevents needed cleanup on the Properties and allows the wastes from the
`
`Properties to contaminate a downstream owner’s previously-cleaned property, which is increasing
`
`the total cost of the cleanup. EPA is expressly authorized by CERCLA to access the Properties
`
`for the purposes sought in this Complaint. The United States therefore seeks an Order in Aid of
`
`Access, providing EPA and its representatives with access to the Properties so that EPA can sample
`
`and clean up hazardous mining waste on the Properties.
`
`JURISDICTION AND VENUE
`
`2.
`
`This Court has exclusive jurisdiction over the subject matter of this action and
`
`personal jurisdiction over the Defendants under CERCLA Section 113(b), 42 U.S.C. § 9613(b),
`
`and 28 U.S.C. §§ 1331 and 1345.
`
`3.
`
`Venue is proper in the Western District of Missouri pursuant to Section 113(b) of
`
`CERCLA, 42 U.S.C. § 9613(b), and 28 U.S.C. § 1391(b), because the Properties are located within
`
`this judicial district and these claims arise in connection with releases or threatened releases that
`
`have occurred in this district.
`
`DEFENDANTS
`
`4.
`
`Defendants own and/or control access to the Properties. Seven contiguous parcels
`
`of land are owned by Defendant Patricia West. Collectively, these parcels are referred to hereafter
`
`as the “West Property.” Defendant Ronald West is the son of Defendant Patricia West and the late
`
`Robert G. West. Ronald West is the owner and operator of RGW Sales & Service, a privately held
`
`business located at 205 Ivy Road, Oronogo, Missouri 64855, on the West Property. Ronald West
`
`controls access to those portions of the West Property where his business is located.
`
`5.
`
`Defendant Randy C. Pendergraft owns property at 302 Dewey Street, Oronogo,
`
`Missouri 64855, to the east of the West Property. This parcel is referred to hereafter as the
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 2 of 14
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`2
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`

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`“Pendergraft Property.”
`
`6.
`
`Patricia West, Ronald West, and Randy C. Pendergraft, are each individually a
`
`“person” as defined in Section 101(21) of CERCLA, 42 U.S.C. § 9601(21).
`
`STATUTORY BACKGROUND
`
`7.
`
`CERCLA Section 104(a)(1), 42 U.S.C. § 9604(a)(1), provides that whenever there
`
`is a release or substantial threat of release into the environment of a hazardous substance, or of any
`
`pollutant or contaminant which may present an imminent and substantial endangerment to the
`
`public health or welfare, EPA “is authorized to act, consistent with the national contingency plan,
`
`to remove or arrange for the removal of, and provide for remedial action relating to such hazardous
`
`substance, pollutant, or contaminant . . . or take any other response measure consistent with the
`
`national contingency plan” that EPA deems necessary to protect the public health or welfare or the
`
`environment. CERCLA Section 104(e)(4), 42 U.S.C. § 9604(e)(4), authorizes any officer,
`
`employee or representative designated under CERCLA Section 104(e)(1), 42 U.S.C. § 9604(e)(1),
`
`to inspect and obtain samples from any facility, establishment, or other place or property referred
`
`to in CERCLA Section 104(e)(3), 42 U.S.C. § 9604(e)(3), or from any location of any suspected
`
`hazardous substance or pollutant or contaminant.
`
`8.
`
`CERCLA authorizes EPA employees and contractors to enter properties at
`
`reasonable times “where entry is needed to determine the need for response or the appropriate
`
`response or to effectuate a response action” under CERCLA. 42 U.S.C. § 9604(e)(3)(D).
`
`9.
`
`CERCLA Section 104(e)(5)(B), 42 U.S.C. § 9604(e)(5)(B), provides that the
`
`United States may commence a civil action to compel compliance with a request for access.
`
`“Where there is a reasonable basis to believe there may be a release or threat of a release of a
`
`hazardous substance, pollutant, or contaminant,” the court “shall enjoin” interference with a
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 3 of 14
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`3
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`

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`request by EPA for entry “unless under the circumstances of the case the demand for entry or
`
`inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with
`
`law.” 42 U.S.C. § 9604(e)(5)(B)(i).
`
`FACTUAL ALLEGATIONS
`
`EPA’s Cleanup of the Oronogo/Duenweg Mining Belt Superfund Site
`
`10.
`
`The Properties are part of the Oronogo/Duenweg Mining Belt Superfund Site (the
`
`“Site”).
`
`11.
`
`The Site comprises approximately 250 square miles and is located in Jasper County
`
`and Newton County, Missouri. The Site is in the Missouri portion of the Tri-State Mining District,
`
`which also includes portions of Kansas and Oklahoma. Historically, lead and zinc mining, milling
`
`and smelting operations generated about 150 million tons of mining wastes within the Site, of
`
`which no more than 14 million tons remain to be remediated.
`
`12.
`
`On August 30, 1990, EPA placed the Oronogo/Duenweg Mining Belt Site on the
`
`National Priorities List. 55 Fed. Reg. 35502 (Aug. 30, 1990). The National Priorities List is the
`
`list of hazardous waste sites designated at “Superfund” sites under CERCLA, set forth at 40 C.F.R.
`
`Part 300, Appendix B.
`
`13.
`
`EPA conducted a Remedial Investigation (“RI”) at the Site. The RI identified that
`
`the mining wastes contain concentrations of heavy metals, primarily cadmium, lead, and zinc,
`
`which are the contaminants of concern that cause unacceptable risk to human health and the
`
`environment. In addition, the RI identified contaminants of concern in the surface waters due to
`
`migration of mining wastes and hazardous substances into surface water bodies. The levels of
`
`contaminants of concern in surface waters at this Site cause unacceptable risk to aquatic life.
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 4 of 14
`
`4
`
`

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`14.
`
`EPA issued a cleanup decision, called a Record of Decision (“ROD”), in September
`
`2004, and a ROD Amendment on September 27, 2013, for Operable Unit One (OU1), which is the
`
`response action that requires cleanup of the mining wastes and contaminated surface waters at the
`
`Site. The mining wastes on the Properties are a portion of the wastes to be cleaned up under this
`
`decision. On May 22 and 25, 2016, EPA issued and published an Explanation of Significant
`
`Differences (“ESD”), which addresses certain techniques that may be used to implement cleanup
`
`under the ROD.
`
`Descriptions of Defendants’ Properties
`
`15.
`
`The West Property consists of seven parcels that are identified in two quit-claim
`
`deeds and a corporation warranty deed. These deeds are recorded in (1) Book 1590, Page 1369
`
`(1998), (2) Book 1233, page 648 (1980), and (3) Book 1371, Page 0241 (1989), respectively in
`
`the Jasper County Recorder of Deeds Office. The Pendergraft Property is identified in a Warranty
`
`Deed recorded in Book 1311, Page 1579 (July 1, 1986), in the Jasper County Recorder of Deeds
`
`Office.
`
`16.
`
`The Properties are shown on the aerial photograph at Attachment A to the
`
`Complaint. Attachment A outlines the approximate boundaries of the West Property in red, and
`
`the approximate boundaries of the Pendergraft Property are outlined in green.
`
`Cleanup Needed at the Properties
`
`17.
`
`The Properties were used in the past as a disposal area for mining wastes. About
`
`six acres of mining wastes are on the West Property. A much smaller area on the Pendergraft
`
`Property also contains mining wastes. Hazardous substances in the mining wastes including lead,
`
`zinc and cadmium are contained in the mining wastes and are released into the environmental from
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 5 of 14
`
`5
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`the Properties. EPA estimates that about 150,000 cubic yards of such mining wastes are located
`
`on the Properties.
`
`18.
`
`The mining wastes on the West Property are located primarily on undeveloped
`
`areas of that property. In addition, there are mining wastes adjacent to the residence on the West
`
`Property, and mining wastes also are located on the areas used by RGW Sales & Service, which
`
`includes a structure used for business, gravel parking areas, and a large gravel lot used for storage
`
`of autos and scrap metal.
`
`19.
`
`20.
`
`The Properties are located in a residential area.
`
`Samples of mining wastes collected from properties adjacent to the Properties
`
`contain contaminants of concern at levels that exceed the action levels EPA selected for the
`
`remedy. Those action levels are: 400 parts per million (ppm) lead; 6,400 ppm zinc; and 40 ppm
`
`cadmium. Mining wastes above these actions levels require cleanup. A series of samples collected
`
`in the vicinity of the Properties contain contaminants of concern in the following ranges:
`
`Contaminant Concentration range (parts per million, or “ppm”)
`
`Lead
`Zinc
`
`Cadmium
`
`
`
`
`
`
`
`
`
`256 ppm – 6,000 ppm
`9,530 ppm – 40,700 ppm
`61.9 ppm – 234 ppm
`
`Based on the concentrations of contaminants in mining wastes found on adjacent
`
`
`21.
`
`properties, EPA believes that the mining wastes on the Properties will have similar concentrations
`
`of the contaminants of concern and will require cleanup.
`
`22.
`
`Cleanup of mining wastes located on nearby properties has been completed. Those
`
`cleanup activities were conducted by EPA, or under its direction, in accordance with the OU1
`
`ROD, the ROD Amendment, and the ESD.
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 6 of 14
`
`6
`
`

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`23. Mining wastes on the Properties are visible from nearby and adjacent properties.
`
`Cleanup of mining wastes on the Properties is needed to address the hazards posed by those wastes,
`
`including but not limited to the contamination of properties that have been cleaned up. Some of
`
`the mining wastes are along a creek that runs through the West Property and continues onto
`
`adjacent lands not owned by Defendants. Those mining wastes are uncovered and are subject to
`
`being transported downstream, especially during and after rainfall.
`
`24.
`
`To perform the selected remedial actions on the Properties, it will be necessary for
`
`employees, agents, contractors, and other representatives of EPA to enter the Properties. The
`
`activities for which entry is required may include but are not limited to: sampling and laboratory
`
`analysis of mining wastes; removal of vegetation and soil; excavation and capping of mining
`
`wastes; filling/capping mining pits; contouring or armoring creek banks to mitigate further releases
`
`of mining wastes into the creek; revegetation of the disturbed areas; establishing long-term
`
`operation and maintenance of the capped areas, and occasional monitoring to verify that mining
`
`wastes left on the Properties remain secured.
`
`25.
`
`The EPA estimates that the duration of the required entry and access will be
`
`approximately six months to conduct sampling, analysis, and cleanup actions. Following these
`
`activities, entry approximately once a year will be required to monitor capped wastes. If annual
`
`monitoring shows that further action is needed, then additional access rights would be needed to
`
`accomplish that.
`
`Defendants’ Denial of Access
`
`26.
`
`EPA and its contractors have been ready to perform the cleanup actions on the
`
`Properties for several years but have been prevented from so doing due to Defendants’ refusal to
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 7 of 14
`
`7
`
`

`

`grant access. EPA’s efforts to obtain Defendants’ consent to access the Properties have been
`
`extensive.
`
`27.
`
`Throughout 2015, EPA representatives contacted and met with both Patricia West
`
`and Ronald West in an effort to obtain access to the Property. During this period, those Defendants
`
`refused to sign a voluntary access agreement.
`
`28.
`
`Beginning in 2016, as EPA began preparations to clean up contaminated properties
`
`in the vicinity of the Properties (including the West Property), EPA renewed its efforts to obtain a
`
`consensual access agreement. These efforts included several meetings with Ronald West, at least
`
`one of which also was attended by Patricia West. EPA also corresponded with Patricia West, and
`
`EPA again provided voluntary access agreements, which Defendants again refused to sign.
`
`29.
`
`After efforts to obtain a voluntary access agreement failed, EPA issued an
`
`Administrative Order to Patricia West on June 15, 2016, requiring her to provide EPA and its
`
`officers, employees, agents, contractors and other representatives full and unrestricted access at all
`
`reasonable times to the West Property, for the purpose of conducting response activities, including
`
`but not limited to performing the remedial action described in the ROD, Amended ROD and ESD.
`
`30.
`
`The Administrative Order provides an opportunity for a conference with EPA. In
`
`response to the Administrative Order, Patricia West refused to meet with EPA and did not provide
`
`consent to access.
`
`31.
`
`EPA and its representatives similarly have attempted on multiple occasions to
`
`obtain consent to access the Pendergraft Property, without success. On March 9 and 10, 2016, a
`
`representative of EPA’s authorized contractor, Tri-State Engineering Company, met with Randy
`
`Pendergraft to obtain access for cleanup work. Mr. Pendergraft refused to consent to access.
`
`Beginning again in January 2020, EPA renewed its efforts to obtain access to the Pendergraft
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 8 of 14
`
`8
`
`

`

`Property by sending a letter to Randy Pendergraft. Mr. Pendergraft did not respond to this letter.
`
`EPA employees had telephone calls with Mr. Pendergraft in March and July of 2020 requesting
`
`access, which Mr. Pendergraft declined to grant. In August 2020, EPA sent Mr. Pendergraft a
`
`final letter again requesting access to the Pendergraft Property. The letter explained that EPA
`
`might seek access through a civil enforcement action if Mr. Pendergraft refused to grant access.
`
`EPA received no response to that letter. EPA employees called the Pendergraft residence several
`
`times in September 2020 regarding that letter, but the phone was disconnected each time after they
`
`introduced themselves.
`
`32.
`
`Defendants’ refusal to consent to access is preventing EPA’s authorized cleanup
`
`activities on the Properties as set forth in the ROD, the Amended ROD, and the ESD.
`
`33.
`
`Absent an order from this Court, EPA is unable to conduct cleanup activities on the
`
`Properties that are necessary to address threats to human health and the environment, including
`
`but not limited to ongoing releases of mine wastes from the West Property to other parcels
`
`downstream of the West Property.
`
`34.
`
`Cleanup of mining wastes on the Properties will require that EPA access and
`
`remediate wastes on additional properties in addition to the West Property and the Pendergraft
`
`Property. The approximate boundaries of these additional properties are shown in yellow on
`
`Attachment A. EPA has obtained voluntary access agreements from the owners of all of these
`
`additional properties.
`
`CLAIM FOR RELIEF
`
`35.
`
`The United States re-alleges and incorporates by reference all of the preceding
`
`paragraphs.
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 9 of 14
`
`9
`
`

`

`36.
`
`The EPA seeks access to the Properties, which qualifies as a facility, establishment,
`
`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 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. CERCLA § 104(e)(3)(B)-
`
`(D), 42 U.S.C. § 9604(e)(3)(B)-(D).
`
`37.
`
`EPA has a reasonable basis to believe there may be a release or threat of release of
`
`a hazardous substance or pollutant or contaminant at the Properties.
`
`38.
`
`CERCLA grants EPA authority to have access to the Site “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.” CERCLA § 104(e)(1), 42 U.S.C. §
`
`9604(e)(1).
`
`39.
`
`CERCLA expressly authorizes the United States to initiate a judicial action to
`
`obtain a court order to compel compliance with an administrative order for access “where there is
`
`a reasonable basis to believe there may be a release or threat of a release of a hazardous substance
`
`or pollutant or contaminant.” 42 U.S.C. § 9604(e)(5)(B).
`
`40.
`
`Unless restrained by an order of the Court under Section 104(e)(5)(B) of CERCLA,
`
`42 U.S.C. § 9604(e)(5)(B), Defendants’ continued denial of entry and access will obstruct, impede
`
`or otherwise interfere with EPA’s statutory authority to enter the Properties to implement the
`
`selected remedial action under CERCLA.
`
`
`
`
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 10 of 14
`
`10
`
`

`

`
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff respectfully requests this Court to:
`
`1.
`
`Issue an Order directing Defendants, and their agents, employees, representatives,
`
`or successors in interest to the Properties, to provide to EPA, its officers, employees, or
`
`representatives, with unimpeded entry and access to the Site at all reasonable times pursuant to
`
`Section 104(e) of CERCLA, 42 U.S.C. § 9604(e), for the purposes of conducting response actions
`
`at the Site that EPA determines are needed (a) to take samples at the Properties; and (b) to take
`
`actions to implement the selected remedial actions if sampling results indicate that hazardous
`
`substances are present in the mining wastes above the action levels established by the selected
`
`remedial actions;
`
`2.
`
`Enjoin Defendants, and their agents, employees, representatives, or successors in
`
`interest to the Properties, pursuant to Section 104(e)(5) of CERCLA, 42 U.S.C. § 104(e)(5), from
`
`obstructing, impeding, or otherwise interfering with entry and access, at reasonable times, to the
`
`Properties by EPA, its officers, employees or representatives for the purpose of taking the response
`
`actions in the previous paragraph; and
`
`3.
`
`Grant such other and further relief as the Court finds just and appropriate.
`
`UNITED STATES OF AMERICA
`
`TODD KIM
`Assistant ATTORNEY GENERAL
`Environment & Natural Resources Division
`U.S. Department of Justice
`Washington, D.C. 20530
`
`TERESA A. MOORE
`Acting United States Attorney
`Western District of Missouri
`
`
`
`11
`
`
`
`
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 11 of 14
`
`
`
`
`
`

`

`By
`
`
`
` /s/ Michael J. Zevenbergen
`
`MICHAEL J. ZEVENBERGEN
`Senior Counsel
`Environmental Enforcement Section
`U.S. Department of Justice
`c/o NOAA Damage Assessment
`7600 Sand Point Way, NE
`Seattle, Washington 98115
`(206) 276-0037
`michael.zevenbergen@usdoj.gov
`efile_seattle.enrd@usdoj.gov
`
`By
`
`/s/ Cynthia J. Hyde
`
`Cynthia J. Hyde
`Assistant United States Attorney
`Mo. Bar No. 34735
`901 St. Louis St., Ste. 500
`Springfield, MO 65806-2511
`cynthia.hyde@usdoj.gov
`
`Attorneys for the United States of America
`
`Date: January 12, 2022
`
`OF COUNSEL:
`
`LESLIE HUMPHREY
`Regional Counsel, EPA Region 7
`
`KRISTEN NAZAR
`Attorney, Office of Regional Counsel
`United States Environmental Protection Agency, Region 7
`11201 Renner Boulevard
`Lenexa, Kansas 66219
`(913) 551-7450
`nazar.kristen@epa.gov
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 12 of 14
`
`12
`
`

`

`
`
`
`
`
`
`
`
`
`COMPLAINT ATTACHMENT A
`COMPLAINT ATTACHMENT A
`
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 13 of 14
`Case 3:22-cv-05002-MDH Document1 Filed 01/12/22 Page 13 of 14
`
`13
`13
`
`
`
`
`
`
`

`

`1
`
`2
`3
`
`4
`5
`
`6
`
`Parcel Identifier
`Ownership Information
`108903130024017000 Robert G. West, Book 1590, Page 1369, 2.01 Acres
`108903130024016000 Robert G and Patricia R West, Book 1233, Page 0648, 1.67 Acres
`108903130024015000 Robert G and Patricia R West, Book 1371, Page 0241, 0.12 Acres
`108903130024014000 Robert and Patricia West, Book 1371, Page 0241, 0,23 Acres
`108903130024012000 Robert G and Patricia R West, Book 1371, Page 0241, 2.88 Acres
`Robert G. West, Book 1590, Page 1369, 1.65 Acres
`Robert and Patricia West, Book 1371, Page 0241, 0.30 Acres
`
`elevant West Parcels
`
`elevant Pendergraft Parcel
`
`III!Wl'fffi
`
`0
`
`125
`
`250
`I
`I
`I
`US Feet
`
`Complaint Attachment A
`Relevant Oronogo Parcels
`
`NOTE: The Environmental Protection Agency
`does not guarantee the accuracy, completeness,
`or timeliness of the information shown, and
`shall not be liable fo1· any injury or loss resulting
`_from reliance upon the information shown. ,
`CJM 4/8/2021
`•®'
`- Map of Relevant Oronogo Parcels
`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 14 of 14
`
`Data Sources:
`Parcels, Jasper County Assessor; 2018
`Aerial Imagery, 2018
`
`

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