`FOR THE WESTERN DISTRICT OF MISSOURI
`SOUTHWESTERN DIVISION
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`PATRICIA R. WEST, RONALD WEST
`d/b/a RGW SALES & SERVICE, and RANDY C. )
`PENDERGRAFT,
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`Defendants.
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`Civil No.3:22-cv-5002
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`COMPLAINT
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`The United States of America, by the authority of the Attorney General of the United States
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`and through the undersigned attorneys, acting at the request of the Administrator of the United
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`States Environmental Protection Agency (“EPA”), files this Complaint seeking access to
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`properties owned and/or controlled by Defendants that are contaminated with mining waste (the
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`“Properties”), and alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action under Section 104(e) of the Comprehensive Environmental
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`Response, Compensation, and Liability Act (“CERCLA”), as amended, 42 U.S.C. § 9604(e). The
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`Properties are part of the Oronogo/Duenweg Mining Belt Superfund Site, a large Superfund site
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`that is contaminated with mining waste. The mining waste has high levels of lead, cadmium, and
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`zinc, which are hazardous to human health and the environment. The United States Environmental
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`Protection Agency (“EPA”) has completed cleanup of mining wastes on properties owned by
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`others in the vicinity of the Properties. EPA was unable to clean up mining waste on the Properties
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`because Defendants have refused, and continue to refuse, to allow EPA access. Defendants’
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 1 of 14
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`refusal to grant access prevents needed cleanup on the Properties and allows the wastes from the
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`Properties to contaminate a downstream owner’s previously-cleaned property, which is increasing
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`the total cost of the cleanup. EPA is expressly authorized by CERCLA to access the Properties
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`for the purposes sought in this Complaint. The United States therefore seeks an Order in Aid of
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`Access, providing EPA and its representatives with access to the Properties so that EPA can sample
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`and clean up hazardous mining waste on the Properties.
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`JURISDICTION AND VENUE
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`2.
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`This Court has exclusive jurisdiction over the subject matter of this action and
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`personal jurisdiction over the Defendants under CERCLA Section 113(b), 42 U.S.C. § 9613(b),
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`and 28 U.S.C. §§ 1331 and 1345.
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`3.
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`Venue is proper in the Western District of Missouri 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 Properties are located within
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`this judicial district and these claims arise in connection with releases or threatened releases that
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`have occurred in this district.
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`DEFENDANTS
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`4.
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`Defendants own and/or control access to the Properties. Seven contiguous parcels
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`of land are owned by Defendant Patricia West. Collectively, these parcels are referred to hereafter
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`as the “West Property.” Defendant Ronald West is the son of Defendant Patricia West and the late
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`Robert G. West. Ronald West is the owner and operator of RGW Sales & Service, a privately held
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`business located at 205 Ivy Road, Oronogo, Missouri 64855, on the West Property. Ronald West
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`controls access to those portions of the West Property where his business is located.
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`5.
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`Defendant Randy C. Pendergraft owns property at 302 Dewey Street, Oronogo,
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`Missouri 64855, to the east of the West Property. This parcel is referred to hereafter as the
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 2 of 14
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`“Pendergraft Property.”
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`6.
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`Patricia West, Ronald West, and Randy C. Pendergraft, are each individually a
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`“person” as defined in Section 101(21) of CERCLA, 42 U.S.C. § 9601(21).
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`STATUTORY BACKGROUND
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`7.
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`CERCLA Section 104(a)(1), 42 U.S.C. § 9604(a)(1), provides that whenever there
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`is a release or substantial threat of release into the environment of a hazardous substance, or of any
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`pollutant or contaminant which may present an imminent and substantial endangerment to the
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`public health or welfare, EPA “is authorized to act, consistent with the national contingency plan,
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`to remove or arrange for the removal of, and provide for remedial action relating to such hazardous
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`substance, pollutant, or contaminant . . . or take any other response measure consistent with the
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`national contingency plan” that EPA deems necessary to protect the public health or welfare or the
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`environment. CERCLA Section 104(e)(4), 42 U.S.C. § 9604(e)(4), authorizes any officer,
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`employee or representative designated under CERCLA Section 104(e)(1), 42 U.S.C. § 9604(e)(1),
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`to inspect and obtain samples from any facility, establishment, or other place or property referred
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`to in CERCLA Section 104(e)(3), 42 U.S.C. § 9604(e)(3), or from any location of any suspected
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`hazardous substance or pollutant or contaminant.
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`8.
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`CERCLA authorizes EPA employees and contractors to enter properties at
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`reasonable times “where entry is needed to determine the need for response or the appropriate
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`response or to effectuate a response action” under CERCLA. 42 U.S.C. § 9604(e)(3)(D).
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`9.
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`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 to compel compliance with a request for access.
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`“Where there is a reasonable basis to believe there may be a release or threat of a release of a
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`hazardous substance, pollutant, or contaminant,” the court “shall enjoin” interference with a
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 3 of 14
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`request by EPA for entry “unless under the circumstances of the case the demand for entry or
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`inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with
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`law.” 42 U.S.C. § 9604(e)(5)(B)(i).
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`FACTUAL ALLEGATIONS
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`EPA’s Cleanup of the Oronogo/Duenweg Mining Belt Superfund Site
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`10.
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`The Properties are part of the Oronogo/Duenweg Mining Belt Superfund Site (the
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`“Site”).
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`11.
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`The Site comprises approximately 250 square miles and is located in Jasper County
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`and Newton County, Missouri. The Site is in the Missouri portion of the Tri-State Mining District,
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`which also includes portions of Kansas and Oklahoma. Historically, lead and zinc mining, milling
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`and smelting operations generated about 150 million tons of mining wastes within the Site, of
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`which no more than 14 million tons remain to be remediated.
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`12.
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`On August 30, 1990, EPA placed the Oronogo/Duenweg Mining Belt Site on the
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`National Priorities List. 55 Fed. Reg. 35502 (Aug. 30, 1990). The National Priorities List is the
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`list of hazardous waste sites designated at “Superfund” sites under CERCLA, set forth at 40 C.F.R.
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`Part 300, Appendix B.
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`13.
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`EPA conducted a Remedial Investigation (“RI”) at the Site. The RI identified that
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`the mining wastes contain concentrations of heavy metals, primarily cadmium, lead, and zinc,
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`which are the contaminants of concern that cause unacceptable risk to human health and the
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`environment. In addition, the RI identified contaminants of concern in the surface waters due to
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`migration of mining wastes and hazardous substances into surface water bodies. The levels of
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`contaminants of concern in surface waters at this Site cause unacceptable risk to aquatic life.
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 4 of 14
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`14.
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`EPA issued a cleanup decision, called a Record of Decision (“ROD”), in September
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`2004, and a ROD Amendment on September 27, 2013, for Operable Unit One (OU1), which is the
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`response action that requires cleanup of the mining wastes and contaminated surface waters at the
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`Site. The mining wastes on the Properties are a portion of the wastes to be cleaned up under this
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`decision. On May 22 and 25, 2016, EPA issued and published an Explanation of Significant
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`Differences (“ESD”), which addresses certain techniques that may be used to implement cleanup
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`under the ROD.
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`Descriptions of Defendants’ Properties
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`15.
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`The West Property consists of seven parcels that are identified in two quit-claim
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`deeds and a corporation warranty deed. These deeds are recorded in (1) Book 1590, Page 1369
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`(1998), (2) Book 1233, page 648 (1980), and (3) Book 1371, Page 0241 (1989), respectively in
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`the Jasper County Recorder of Deeds Office. The Pendergraft Property is identified in a Warranty
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`Deed recorded in Book 1311, Page 1579 (July 1, 1986), in the Jasper County Recorder of Deeds
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`Office.
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`16.
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`The Properties are shown on the aerial photograph at Attachment A to the
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`Complaint. Attachment A outlines the approximate boundaries of the West Property in red, and
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`the approximate boundaries of the Pendergraft Property are outlined in green.
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`Cleanup Needed at the Properties
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`17.
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`The Properties were used in the past as a disposal area for mining wastes. About
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`six acres of mining wastes are on the West Property. A much smaller area on the Pendergraft
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`Property also contains mining wastes. Hazardous substances in the mining wastes including lead,
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`zinc and cadmium are contained in the mining wastes and are released into the environmental from
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 5 of 14
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`the Properties. EPA estimates that about 150,000 cubic yards of such mining wastes are located
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`on the Properties.
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`18.
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`The mining wastes on the West Property are located primarily on undeveloped
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`areas of that property. In addition, there are mining wastes adjacent to the residence on the West
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`Property, and mining wastes also are located on the areas used by RGW Sales & Service, which
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`includes a structure used for business, gravel parking areas, and a large gravel lot used for storage
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`of autos and scrap metal.
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`19.
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`20.
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`The Properties are located in a residential area.
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`Samples of mining wastes collected from properties adjacent to the Properties
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`contain contaminants of concern at levels that exceed the action levels EPA selected for the
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`remedy. Those action levels are: 400 parts per million (ppm) lead; 6,400 ppm zinc; and 40 ppm
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`cadmium. Mining wastes above these actions levels require cleanup. A series of samples collected
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`in the vicinity of the Properties contain contaminants of concern in the following ranges:
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`Contaminant Concentration range (parts per million, or “ppm”)
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`Lead
`Zinc
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`Cadmium
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`256 ppm – 6,000 ppm
`9,530 ppm – 40,700 ppm
`61.9 ppm – 234 ppm
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`Based on the concentrations of contaminants in mining wastes found on adjacent
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`21.
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`properties, EPA believes that the mining wastes on the Properties will have similar concentrations
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`of the contaminants of concern and will require cleanup.
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`22.
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`Cleanup of mining wastes located on nearby properties has been completed. Those
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`cleanup activities were conducted by EPA, or under its direction, in accordance with the OU1
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`ROD, the ROD Amendment, and the ESD.
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 6 of 14
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`23. Mining wastes on the Properties are visible from nearby and adjacent properties.
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`Cleanup of mining wastes on the Properties is needed to address the hazards posed by those wastes,
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`including but not limited to the contamination of properties that have been cleaned up. Some of
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`the mining wastes are along a creek that runs through the West Property and continues onto
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`adjacent lands not owned by Defendants. Those mining wastes are uncovered and are subject to
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`being transported downstream, especially during and after rainfall.
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`24.
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`To perform the selected remedial actions on the Properties, it will be necessary for
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`employees, agents, contractors, and other representatives of EPA to enter the Properties. The
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`activities for which entry is required may include but are not limited to: sampling and laboratory
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`analysis of mining wastes; removal of vegetation and soil; excavation and capping of mining
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`wastes; filling/capping mining pits; contouring or armoring creek banks to mitigate further releases
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`of mining wastes into the creek; revegetation of the disturbed areas; establishing long-term
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`operation and maintenance of the capped areas, and occasional monitoring to verify that mining
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`wastes left on the Properties remain secured.
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`25.
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`The EPA estimates that the duration of the required entry and access will be
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`approximately six months to conduct sampling, analysis, and cleanup actions. Following these
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`activities, entry approximately once a year will be required to monitor capped wastes. If annual
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`monitoring shows that further action is needed, then additional access rights would be needed to
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`accomplish that.
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`Defendants’ Denial of Access
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`26.
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`EPA and its contractors have been ready to perform the cleanup actions on the
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`Properties for several years but have been prevented from so doing due to Defendants’ refusal to
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 7 of 14
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`grant access. EPA’s efforts to obtain Defendants’ consent to access the Properties have been
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`extensive.
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`27.
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`Throughout 2015, EPA representatives contacted and met with both Patricia West
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`and Ronald West in an effort to obtain access to the Property. During this period, those Defendants
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`refused to sign a voluntary access agreement.
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`28.
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`Beginning in 2016, as EPA began preparations to clean up contaminated properties
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`in the vicinity of the Properties (including the West Property), EPA renewed its efforts to obtain a
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`consensual access agreement. These efforts included several meetings with Ronald West, at least
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`one of which also was attended by Patricia West. EPA also corresponded with Patricia West, and
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`EPA again provided voluntary access agreements, which Defendants again refused to sign.
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`29.
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`After efforts to obtain a voluntary access agreement failed, EPA issued an
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`Administrative Order to Patricia West on June 15, 2016, requiring her to provide EPA and its
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`officers, employees, agents, contractors and other representatives full and unrestricted access at all
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`reasonable times to the West Property, for the purpose of conducting response activities, including
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`but not limited to performing the remedial action described in the ROD, Amended ROD and ESD.
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`30.
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`The Administrative Order provides an opportunity for a conference with EPA. In
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`response to the Administrative Order, Patricia West refused to meet with EPA and did not provide
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`consent to access.
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`31.
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`EPA and its representatives similarly have attempted on multiple occasions to
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`obtain consent to access the Pendergraft Property, without success. On March 9 and 10, 2016, a
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`representative of EPA’s authorized contractor, Tri-State Engineering Company, met with Randy
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`Pendergraft to obtain access for cleanup work. Mr. Pendergraft refused to consent to access.
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`Beginning again in January 2020, EPA renewed its efforts to obtain access to the Pendergraft
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 8 of 14
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`Property by sending a letter to Randy Pendergraft. Mr. Pendergraft did not respond to this letter.
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`EPA employees had telephone calls with Mr. Pendergraft in March and July of 2020 requesting
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`access, which Mr. Pendergraft declined to grant. In August 2020, EPA sent Mr. Pendergraft a
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`final letter again requesting access to the Pendergraft Property. The letter explained that EPA
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`might seek access through a civil enforcement action if Mr. Pendergraft refused to grant access.
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`EPA received no response to that letter. EPA employees called the Pendergraft residence several
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`times in September 2020 regarding that letter, but the phone was disconnected each time after they
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`introduced themselves.
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`32.
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`Defendants’ refusal to consent to access is preventing EPA’s authorized cleanup
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`activities on the Properties as set forth in the ROD, the Amended ROD, and the ESD.
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`33.
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`Absent an order from this Court, EPA is unable to conduct cleanup activities on the
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`Properties that are necessary to address threats to human health and the environment, including
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`but not limited to ongoing releases of mine wastes from the West Property to other parcels
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`downstream of the West Property.
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`34.
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`Cleanup of mining wastes on the Properties will require that EPA access and
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`remediate wastes on additional properties in addition to the West Property and the Pendergraft
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`Property. The approximate boundaries of these additional properties are shown in yellow on
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`Attachment A. EPA has obtained voluntary access agreements from the owners of all of these
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`additional properties.
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`CLAIM FOR RELIEF
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`35.
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`The United States re-alleges and incorporates by reference all of the preceding
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`paragraphs.
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 9 of 14
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`36.
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`The EPA seeks access to the Properties, which qualifies as a facility, establishment,
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`or other place or property: (a) from which or to which a hazardous substance or pollutant or
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`contaminant has been or may have been released; (b) where a further release of a hazardous
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`substance is or may be threatened; and (c) where entry is needed to determine the need for
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`response, or the appropriate response, or to effectuate a response action. CERCLA § 104(e)(3)(B)-
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`(D), 42 U.S.C. § 9604(e)(3)(B)-(D).
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`37.
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`EPA has a reasonable basis to believe there may be a release or threat of release of
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`a hazardous substance or pollutant or contaminant at the Properties.
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`38.
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`CERCLA grants EPA authority to have access to the Site “for the purposes of
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`determining the need for response, or choosing or taking any response action under this subchapter,
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`or otherwise enforcing the provisions of this subchapter.” CERCLA § 104(e)(1), 42 U.S.C. §
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`9604(e)(1).
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`39.
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`CERCLA expressly authorizes the United States to initiate a judicial action to
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`obtain a court order to compel compliance with an administrative order for access “where there is
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`a reasonable basis to believe there may be a release or threat of a release of a hazardous substance
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`or pollutant or contaminant.” 42 U.S.C. § 9604(e)(5)(B).
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`40.
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`Unless restrained by an order of the Court under Section 104(e)(5)(B) of CERCLA,
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`42 U.S.C. § 9604(e)(5)(B), Defendants’ continued denial of entry and access will obstruct, impede
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`or otherwise interfere with EPA’s statutory authority to enter the Properties to implement the
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`selected remedial action under CERCLA.
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 10 of 14
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff respectfully requests this Court to:
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`1.
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`Issue an Order directing Defendants, and their agents, employees, representatives,
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`or successors in interest to the Properties, to provide to EPA, its officers, employees, or
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`representatives, with unimpeded entry and access to the Site at all reasonable times pursuant to
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`Section 104(e) of CERCLA, 42 U.S.C. § 9604(e), for the purposes of conducting response actions
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`at the Site that EPA determines are needed (a) to take samples at the Properties; and (b) to take
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`actions to implement the selected remedial actions if sampling results indicate that hazardous
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`substances are present in the mining wastes above the action levels established by the selected
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`remedial actions;
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`2.
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`Enjoin Defendants, and their agents, employees, representatives, or successors in
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`interest to the Properties, pursuant to Section 104(e)(5) of CERCLA, 42 U.S.C. § 104(e)(5), from
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`obstructing, impeding, or otherwise interfering with entry and access, at reasonable times, to the
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`Properties by EPA, its officers, employees or representatives for the purpose of taking the response
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`actions in the previous paragraph; and
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`3.
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`Grant such other and further relief as the Court finds just and appropriate.
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`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
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`11
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 11 of 14
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`By
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` /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
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`/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
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`Date: January 12, 2022
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`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
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`Case 3:22-cv-05002-MDH Document 1 Filed 01/12/22 Page 12 of 14
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`COMPLAINT ATTACHMENT A
`COMPLAINT ATTACHMENT A
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`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
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`1
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`2
`3
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`4
`5
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`6
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`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
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`elevant West Parcels
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`elevant Pendergraft Parcel
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`III!Wl'fffi
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`0
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`125
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`250
`I
`I
`I
`US Feet
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`Complaint Attachment A
`Relevant Oronogo Parcels
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`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
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`Data Sources:
`Parcels, Jasper County Assessor; 2018
`Aerial Imagery, 2018
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`