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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 1 of 10
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`GREGORY EVANS
`(Pro Hoe Vice Application Pendirtg)
`WILLIAM R. FLETCHER
`
`(Pro Hoe Vice Application Pending)
`Integer Law Corporation
`811 West Seventh Street, Twelfth Fioor
`
`Les AngeIes, Caiifomia 90017
`TeIephone: (213) 627~2268
`Facsimile: (213) 627—2579
`E—mail: gevans@integeriegal.com
`
`STEFAN T. WALL
`
`McMahon, Wall & Hubiey, PLLC
`212 North Rodney Street
`Helena, Montana 59601
`Telephone: (406) 442—1054
`Facsimile: (406) 4426455
`E~Mail: stefan@mlfpllc.eom
`
`Attorneys for ASARCO LLC
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF MONTANA
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`HELENA DIVISION
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`Case No:
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`CIVIL COMPLAINT
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`ASARCO LLC, a Deiaware
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`corporation,
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`_
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`Plaintiff,
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`V.
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`BRITISH PETROLEUM, PLC, 8-.
`United Kingdom Corporation,
`AMERICAN CHEMET
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`CORPORATION, a Montana
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`Corporation,
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`Defendants.
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`
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`g
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 2 of 10
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`Plaintiff ASARCO LLC— (“As-arco”) complains of Defendant and alleges:
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`NATURE OF THE ACTION
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`1.
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`Over thirty years ago, Congress enacted the Comprehensive
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`Environmental Response, Compensation, and Liability Act of 1980, as amended
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`(“CERCLA” and “SARA“?g 42 U.S.C. Ell 96019675, to promote the cleanup of the
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`environment after over 200 years of industrial development in the United States.
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`Key to this cleanup scheme is that environmental remediation does not need to
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`wait for final allocation of liability; settlements are favored and clean up often
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`precedes allocation. Both governmental and private parties can seize the initiative
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`to remediate a site; Congress has determined that those who first pay to clean up
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`can later recover costs from other parties responsible for contamination at a site
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`that have failed to act.
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`2.
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`This is a civil action brought by Asarco pursuant to CERCLA for
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`contribution and cost recovery against defendants for costs incurred by-Asarco at
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`the East Helena Site. Asarco has paid approximately $114 million to settle all of
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`its CERCLA-related liability at the Site. This settlement included costs to clean up
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`and control contamination that cannot be associated with Asarco’s historic
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`activities, but can only have come from defendants’ facilities.
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`[/f
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`if}
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`Ex.)
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 3 of 10
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`JURISDICTION AND VENUE
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`3.
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`This Court has jurisdiction over the subject matter of this action, and
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`this defendant, pursuant to 28 U.S.C. §§ 1331 and 1367(8), and Sections 107'
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`and 113 of CERCLA, 42 U.S.C §§ 9607 and 9613.
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`4‘
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`Venue is proper in this judicial district pursuant to 107(a) and l13(b)
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`of CERCLA, 42 U.S.C. §§ 9607(a), 961303), and 28 U.S.C. §§ 1391(b) because
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`the claims arose, and the threatened and/or actual reieases of hazardous substances
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`occurred within the District of Montana.
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`PLAINTIFF
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`5.
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`Asarco is a limited liability company organized under the laws of the
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`state of Delaware. Asareo owned and operated a historic smelting and refining
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`facility in East Helena, Montana.
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`6.
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`Asarco has taken responsibility for the cleanup of ail of its known
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`liabilities for any “releases” under CERCLA Section 107(a), et seq, 42 U.S.C.
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`§ 9607(3), 61 3951., for Asarco’s historic smelting operations at East Helena, and
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`Asarco has settled all of its liabiiity at the site with the United States (“EPA”) and
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`the State of Montana.
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`DEFENDANT
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`7.
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`Defendants British Petroleum, PLC (“BP”) is a United Kingdom
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`corporation that has conducted metals processing? storage; transport and/or reiated
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 4 of 10
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`operations through facilities in or near the East Helena Site. BP is an “owner,”
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`“operator,” andfor “arranger” of a “facility” pursuant to Sections t01(9) and
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`(20) and 107(a)(2) of CERCLAS 42 USC. §§ 9601(9) and (20) and 9607(a)(i) and
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`(2). BP is also a “person,” within the meaning of Section £0181) of CERCLA,
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`42 U.S.C. §9601(21).
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`8,
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`Defendant American Chernet Corporation (“AC”) is a Montana
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`Corporation that has conducted metals processing, storage, transport and/or reiated
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`operations through facilities in or near the East Helena Site. AC is an “owner,”
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`“operator,” and/or “arranger” of a “facility” pursuant to Sections 101(9) and
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`(20) and 107(a)(2) of CBRCLA, 42 U.S.C. §§ 9601(9) and (20) and 9607(a)(1) and
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`(2). AC is also a “person,” within the meaning of Section 101(21) of CERCLA,
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`42 U.S.C. §9601(21)t
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`SITE DESCRXPTION AND FACTUAL BACKGROUND
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`9.
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`For more than a hundred years, Asarco, along with others, operated a
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`metals refinery on in East Helena, Montana. Lead and zinc smeiting and metals
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`processing operations deposited lead, arsenic, copper, zinc, cadmium and some
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`15 other hazardous substances into the soil, surface water and groundwater of the
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`Helen-a Vaiiey. Asarco shut down its facility on. Aprii 4, 2001.
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`10.
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`As a result of discovery of metals contamination in East Heiena, the
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`East Helena Superfund Site was added to the National Priorities Lisa or
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 5 of 10
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`“Superfund,” in 1984. East Helena Superfund Site includes Asarco’s former lead
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`smelter that operated from l888 until 2001, the town of East Helena, several
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`residential} subdivisions, and surrounding rural agricultural lands.
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`l l.
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`E}?A’s CERCLA enforcement action against Asarco was pending on
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`August 9, 2005, when Asarco filed a voluntary petition for relief under chapter ll
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`of the United States Bankruptcy Code in the Bankruptcy Court for the Southern
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`District of Texas (the “Bankruptcy Court”)
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`12.
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`EPA continued its enforcement action against Asarco by filing certain
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`proofs of claim and initial submissions in Asarco bankruptcy case (the
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`“Enforcement Action”). Alleging that Asarco was responsible for contamination at
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`East Helena under CERCLA, EPA sought recovery from Asarco of the entire
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`liability alleged for East Helena.
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`13. Asarco made two separate settlements in its bankruptcy concerning
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`East Helena. It settled its liability to the United States for approximately $13
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`million.
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`it also provided $100 million in cash to a trust for the benefit of the State
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`of Montana, and gave Montana certain properties in the state. These settlements
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`(collectively, “East Heiena Settlements”) were approved by the Bankruptcy Court
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`and United States District Court. These settlements were designed to be funded
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`upon court approval of a plan of reorganization.
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`57/
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 6 of 10
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`14,
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`On November 13, 2009 Asareo’s Plan of Reorganization, under which
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`Asarco would make full payment on its environmental claims as approved by the
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`Bankruptcy Court, was approved by the District Court for the Southern District of
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`Texas.
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`15.
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`On December 9, 2009 Plaintiff’s Plan of Reorganization became
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`effective, enabling disbursal of funds for environmental settlements, including
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`funds for the East Helena Settlements. Asarco fully funded the East Helena
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`Settlements at one hundred cents on the dollar as part of its reorganization. Thus,
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`the East Helena Settlements constitutes a judicially approved settlement which
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`stems from enforcement action taken pursuant to Section 106 or Section 107 of
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`CERCLA.
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`16.
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`The East Helena Settlements fund a cleanup at East Helena that
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`addresses fully all of Asarco’s “releases” under CERCLA at the East Helena Site,
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`as well as the released by RP and AC during their ownership or operation of
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`facilities at the East Helena Site or near or adjacent to the Site.
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`17:
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`BP (including through its corporate predecessors) owned and operated
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`a zinc training facility adjacent to the East Helena site. This mining facility
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`operated forty-five years, from 1927—1972. These operations lead to disposals or
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`discharges of lead, arsenic, copper, zinc, cadmium and other hazardous substances
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 7 of 10
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`18.
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`into the sot}, surface water and groundwater of the Heiena Vaiiey.
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`Asareo’s East Helena Settlements have paid to remediate these metats.
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`19.
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`AC owns and operates a metals processing facility adjacent to the East
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`Helena site, which facitity manufactures cuprous oxide, cupric oxide, zinc oxide,
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`among other products. These operations have led to disposals or discharges of
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`copper, zinc, and other hazardous substances into the soii, surface water and
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`groundwater of the Helena Vailey. Asarco‘s East Helena Settlements have paid to
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`remediate these metals.
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`COUNT i
`CLAIM FOR CONTRIBUTION UNDER SECTION 113(1) OF CERCLA
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`20.
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`i’taintiff incorporates by reference paragraphs 1 through. 18 as if fuily
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`set forth herein.
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`21.
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`The East Helena Site and surrounding areas, are “facilities” within the
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`meaning of Section 101(9) of CERCLA, 42 U.S.C. § 9601(9).
`22.
`“Hazardous substances,” Within the meaning of Section 101(14) of
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`CERCLA, 42 U.S.C. § 9601(14), were disposed of, pieced, released, or otherwise
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`became located in the East Helena Site at times relevant to this action by
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`Defendants BF and AC.
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 8 of 10
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`23. Defendants Bi) and AC are responsible for“re1-eases” within the
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`meaning of Section 10E(22) of CERCLA, 42 USC. § 9601(22) into the
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`environment at or from the East Helena Site at times relevant to this action.
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`24‘
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`Response costs for the East Helena Site are consistent with the
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`Nationai Contingency Pisa (the “NCP”), pursuant to Section iO7(a)(4)(B) of
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`CERCLA, 42 USC. § 9607(a)(4)(l3) and implementing regulations.
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`25. Any person may seek contribution from any other person who is Eiable
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`or potentially liable under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a),
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`42 USC. § 9613(t)(1),
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`26.
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`A person is liable under Section 107(3) of CERCLA if the person
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`owned or operated any facility at which such hazardous substances were disposed.
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`42 USCV § 9607(a)(22,)w
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`27.
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`A person is liable under Section 107(a) of CERCLA if the person
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`arranged, by contract or otherwise, with a transporter for transport or disposal or
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`treatment, of hazardous substances owned or possessed by such person, by any
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`other party or entity, at any facility or incineration vessel owned or operate-cl by
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`another party or entity and containing such hazardous substances. 42 USC.
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`§ 9607(a)(3).
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`28.
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`A person is iiable under Section 107(a) of CERCLA if the person
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`accepted any hazardous substances for transport to disposal or treatment facilities,
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` u
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`i illi Ii1
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 9 of 10
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`incineration vessels or sites selected by such person, from which there is a release
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`03‘ a threatened release which causes the incurrence of response costs. 42 U.S.C.
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`§ 9607(a)(4).
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`29. Defendants BP and AC are “persons” who are liable for owning
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`and/or operating facilities at or from. which hazardous substances were disposed
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`under 42 U.S.C. § 9607(a)(2), for arranging transport or disposal of hazardous
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`substances under 42 U.S.C. § 9607(a)(3), and/or transporting hazardous substances
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`in or near the East Helena Site, under 42 U.S.C. § 9607(a)(4).
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`30. Asareo has resolved CERCLA liability for reSponse action with the
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`United States and State of Montana through the judicially approved bankruptcy
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`reorganization and may seek contribution pursuant to Section 1130) of CERCLA3
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`42, U.S.C. § 9613(f).
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`3 i.
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`To date, Asarco has incurred approximately Si 13,000,000 for
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`response action consistent with the NCP pursuant to 42 U.S._C. § 9607(a)(4)(8).
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`This amount represents more than Asarco’s allocable share of costs related to its
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`releases or disposal of hazardous substances in or near the East Helena Site.
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`32.
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`Because Defendants BP and AC qualify as responsible parties under
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`CERCLA § 107(a), Defendants BP and AC are liable for their equitable shares of
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`any overpayment incurred by Asarco.
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`{ff
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`Case 6:12-cv-00053-DLC Document 1 Filed 06/05/12 Page 10 of 10
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`33. WHEREFORE, Piaintiff respectfuily requests that judgment be
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`entered in its favor and against Defendants:
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`(1)
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`(2)
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`(3)
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`Ordering Defendants to pay contribution to Plaintiff in a sum to
`be determined by the Court to be owed to i’Iaintiff for response
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`casts;
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`Awarding Plaintiff its costs and attorneys” fees; and
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`Awarding Plaintiff ail other reiief that the Court deems
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`appropriate.
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`Dated: June 5, 2012.
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`
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`llua
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`Respectfully submitted,
`
`[2“
`
`
`Gregory Bis/ans
`_.
`Pro Hac Vice Application Pending
`William R. Fletcher
`
`Pro Hac Vice Application Pending
`Integer Law Corporation
`8U West Seventh Street, Twelfih Floer
`Los Angeles, California 90017
`Telephone: (213) 621-2268
`Facsimile: (213)627-2579
`Email: gevans@integerlega1.oom
`E-mail: Wpleteher@integeriegai.com
`
`Stefan T. Wail
`
`McMahon, Walk & Hobiey, PLLC
`212 North Rodney Street
`Helena, Montana 59601
`Telephone: (406) 442-1054
`Facsimile: (406) 442-6455
`EeMaik': stefengaijmifgliceom
`
`Attomeys for Asereo LLC
`
`30
`
`
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