`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 1 of 16
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`Josh Reid
`Nevada Bar No. 7497
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`FENNEMORE CRAIG, RC.
`300 South Fourth Street, Suite 1400
`Las Vegas, Nevada 89101
`Telephone: (102)692-8000
`Facsimile: (702) 692-8099
`Email: jreid@fennemorelaw.com
`
`Eric L. Maassen
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`(Pro Hac Vice Forthcoming)
`William J. McKenna
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`(Pro Hac Vice Forthcoming)
`Tanya C. O’Neill
`(Pro Hac Vice Forthcoming)
`FOLEY & LARDNER LLP
`Tl? E. Wisconsin Ave.
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`Milwaukee, WI 53202
`Telephone: (414) 211-2400
`Facsimile: (414) 297-4100
`Email: emaassen@foley.com
`wmckenna@foley.com
`toneill@foley.com
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`Attorn eys for PlaintiffLe Petomane XXVH, lnc., not
`individually, but solely in its representative capacity
`as trustee ofthe Nevada Environmental Response
`Trust
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`C
`ase
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`N .
`o..
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`LE PETOMANE XXVI], INC, an Illinois
`corporation, not individually, but solely in its
`representative capacity as trustee of the Nevada
`Environmental Response Trust,
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`Plaintiff,
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`v.
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`AMERICAN PACIFIC CORPORATION, a
`Nevada corporation,
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`Defendant.
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`
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`COMPLAINT
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`JURY DEMAND
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`Plaintiff, Le Petomane XXVII, Inc., not
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`individually, but solely in its representative
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`capacity as trustee of the Nevada Environmental Response Trust ("Trustee"), as and for its
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`FENNEMORE CRAIG, PC.
`AnonNExs n1 Law
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`18524410.]l0559310001
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`Complaint against Defendant American Pacific Corporation (“AMPAC” or “Defendant”), alleges
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`and states as follows:
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`Nature of the Action
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`1.
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`This action is brought under the provisions of the Comprehensive Environmental
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`Response, Compensation and Liability Act, as amended, 42 U.S.C §§ 9601 et seq. ("CERCLA").
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`The Trustee on behalf of the Nevada Environmental Response Trust ("NERT") seeks, among other
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`relief:
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`(a) recovery from AMPAC under CERCLA Section 10?(a') of response costs expended, and
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`to be expended, by NERT with respect to the Weir Project, as defined herein;
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`(b) contribution from AMPAC under CERCLA Section 1 13(f) for response costs expended,
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`and to be expended, by NERT with respect to the Weir Project, as defined herein;
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`(0) contribution under Nevada Revised Statutes Section 17.225; and,
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`(d) compensatory relief for unjust enrichment.
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`2.
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`In 201?, NERT was ordered by the Nevada Division of Environmental Protection
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`(“NDEP”) to undertake a removal action related to perchlorate in the Las Vegas Wash, a tributary
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`to Lake Mead, in connection with the Southern Nevada Water Authority’s (“SNWA”) construction
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`of two erosion control weirs in the Las Vegas Wash. To date, NERT has spent over $36 million
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`(with work ongoing related to decommissioning and costs continuing to accrue) to build, operate,
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`and decommission the pumping and treatment facilities to treat the perchlorate in groundwater
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`associated with SNWA’s dewatering activities.
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`3.
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`Subsequent to completing the removal action, NERT discovered that the vast
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`majority of the perchlorate treated by NERT as part of the removal action originates from a former
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`manufacturing site that was owned and operated by Defendant AMPAC and its corporate
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`predecessor, Pacific Engineering & Production Co. of Nevada (“PEPCON”). NERT has spent the
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`majority of the $36 million to treat hazardous sub stances for which AMPAC is legally responsible.
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`4.
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`By this action, NERT seeks to recover from AMPAC the response costs that NERT
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`incurred to treat AMPAC’s perchlorate. NERT also seeks a declaratory judgment that Defendant
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`is liable for future response decommissioning costs or damages.
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`FENNEMORE CRAIG, PC.
`AnonNExs a1 Law
`LASVECnS
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`The Parties
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`5.
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`Plaintiff is the trustee of NERT, which is a trust that was established on February
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`14, 2011 in connection with the confirmation of Tronox LLC’s (formerly known as Kerr-McGee
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`Chemical LLC) (“Tronox”) Chapter 11 bankruptcy filed in the US. Bankruptcy Court for the
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`Southern District of New York, in January 2009. The Trustee is a corporation organized and
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`existing under the laws of the State of Illinois with its headquarters and principal executive offices
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`located in Chicago, Illinois, is the sole trustee of NERT and administers NERT under the terms of
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`a written Trust Agreement.
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`6.
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`NERT’s primary purpose is to own Tronox’s former chemical manufacturing
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`facility located approximately 13 miles southeast of the City of Las Vegas in an unincorporated
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`area of Clark County, Nevada (“Henderson Site”) and to remediate certain environmental impacts
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`at or migrating from the Henderson Site.
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`7.
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`The Trustee brings this suit, not individually, but solely in its representative capacity
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`as trustee of the Trust. The Trustee is a citizen of the State of Illinois and of no other state.
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`8.
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`Defendant AMPAC, the corporate successor to PEPCON, is a corporation organized
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`under the laws of the State of Nevada, with a principal place of business located at 10622 West
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`6400 North, Cedar City, Utah 84721. AMPAC is a citizen of the State of Nevada and of the State
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`of Utah and no other state.
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`9.
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`PEPCON formerly owned and, until 1988, operated a chemical manufacturing
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`facility approximately one and a half miles west of the Henderson Site (the “AMPAC Site”).
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`Jurisdiction and Venue
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`10.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
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`question jurisdiction); Sections 107(a') and 113(b') of CERCLA, 42 U.SC. §§ 9607(a'), and 9613(b')
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`(CERCLA grant of jurisdiction); 28 U.SC. § 1367 (Supplemental Jurisdiction); and 28 U.S.C. §
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`1332 (Diversity Jurisdiction) in that this is a civil action where the matter in controversy exceeds
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`the sum or value of $25,000, exclusive of interest and costs, and is between citizens of different
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`States. A trust “has the citizenship of its trustee or trustees.” Johnson v. Col. Props. Anchorage,
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`LP, 437 F.3d 894, 899 (9th Cir. 2006). The Trustee is the Plaintiff.
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`FENNEMORE CRAIG, PC.
`AnonNExs a1 Law
`LASVECaS
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`11.
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`The Trustee is an Illinois corporation with its headquarters in Chicago, Illinois;
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`because its “nerve center” is in Illinois, it is a citizen of that state for diversity purposes.
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`12.
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`AMPAC is a Nevada corporation with its headquarters in Cedar City, Utah; and
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`because its “nerve center” is in Utah, it is a citizen of that state for diversity purposes.
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`13.
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`Section 1332(a)(2) “provides district courts with original jurisdiction of all civil
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`actions where the matter in controversy exceeds the sum or value of $36,000 and is between citizens
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`of a state and citizens or subjects of a foreign state.” JPMorgan Chase Bank v. Traflic Stream (B V1)
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`Infi‘astmcture Ltd, 536 US. 88, 91 (2002') (internal quotation marks and ellipses omitted).
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`Therefore, the parties are citizens of different states for purposes of diversity. This action is of a
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`civil nature involving, exclusive of interest and costs, a sum in excess of $15,000.00. Every issue
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`of law and fact in this action is wholly between a plaintiff who is a citizen of a state that is different
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`from the state of which a defendant is a citizen.
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`14.
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`Because of the federal question jurisdiction,
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`this Court also has supplemental
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`jurisdiction pursuant to 28 U.S.C. § l367(a)-(b) over the state law claims asserted against the
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`defendant, regardless of the amount in controversy.
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`15.
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`This Court has general personal jurisdiction over AMPAC because it is organized
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`and exists under Nevada’s corporate laws, 1'.e., Nevada Revised Statutes Title 7.
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`16.
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`This Court also has specific personal jurisdiction over AMPAC because it has
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`purposefully availed itself of the laws and protections of this forum by conducting business here
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`by registering with the Nevada Secretary of State as a corporation.
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`Under these circumstances, the exercise of jurisdiction over AMPAC would be
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`reasonable.
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`18.
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`Venue lies in this district pursuant to Section 113(b') of CERCLA, 42 U.S.C. §
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`9613(b'), and 28 U.S.C. § 1391(b'), because the properties at issue are located within this judicial
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`district, the releases or threatened releases of solid or hazardous wastes or hazardous substances or
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`materials occurred in this judicial district, a substantial part of the events or omissions giving rise
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`to the claim occurred in this district, and a substantial part of the property that is the subject of the
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`action is situated in this district.
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`FENNEMORE CRAIG, PC.
`AnonNExs a1 Law
`LASVECnS
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`18524410.]r'055931.0001
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`19.
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`Venue lies in the unofficial Southern Division of this Court.
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`Factual Background
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`A.
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`Historic Operations, Contaminants, and Environmental Response Activities at
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`the AMPAC Site
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`20.
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`The PEPCON facility was built near Henderson, Nevada in or about 1958. In 1997,
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`PEPCON merged with, and into AMPAC Development Company, which changed its name to
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`AMPAC, Inc. In 1998, AMPAC, Inc. merged with, and into American Pacific Corporation.
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`2].
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`From approximately 1958 through 1988, perchlorate was produced at the AMPAC
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`Site. Operations at the AMPAC Site terminated on or about May 4, 1988.
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`22.
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`During the time PEPCON and AMPAC owned and operated the AMPAC Site, spills
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`and releases of hazardous substances at the AMPAC Site contaminated soil and groundwater at,
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`and beneath the AMPAC Site. Perchlorate contamination in groundwater has been identified at,
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`and emanating from the AMPAC Site.
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`23.
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`AMPAC installed and operated a perchlorate remediation system to remove
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`perchlorate from groundwater migrating from the AMPAC Site.
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`24.
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`Notwithstanding the treatment system installed and operated by AMPAC, not all of
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`AMPAC’s perchlorate in groundwater is captured by the treatment system and continues to migrate
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`to the north into the Las Vegas Wash.
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`B.
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`Historic Operations, Contaminants, and Environmental Response Activities at
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`the Tronox Henderson Site
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`25.
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`The Henderson Site was developed in 1942 by the US. govemment as a magnesium
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`production plant in support of the World War II effort. Perchlorate was produced at the Henderson
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`Site beginning in 1952 and ending in 1998.
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`26.
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`Tronox, the former owner of the Henderson Site, began investigating potential
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`environmental impacts in July 1981 from both current and historic operations.
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`2?.
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`In the late 1990s, Tronox installed a seep water collection system adjacent to the
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`Las Vegas Wash to mitigate the discharge of perchlorate into the Las Vegas Wash and a treatment
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`system to treat the collected perchlorate-impacted groundwater.
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`AnonNExs n1 Law
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`28.
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`In 2001, Tronox installed a groundwater extraction system downgradient of the
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`Henderson Site and in 2004, a groundwater treatment system at the Henderson Site. All perchlorate
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`in groundwater associated with historic releases migrating from the Henderson Site are captured by
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`the groundwater treatment system at the Henderson Site.
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`C.
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`Early Perchlorate Detection and Study in the Colorado River and Las Vegas
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`Wash
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`29.
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`The Las Vegas Wash is a tributary which flows into Lake Mead and the Colorado
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`River system, which affects approximately 30 million end water users in Nevada, Arizona, and
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`California. In the late 1990s, perchlorate was detected in the Lower Colorado River Basin system.
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`30.
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`Based on sampling conducted by SNWA and others, the occurrence of perchlorate
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`in the Lower Colorado River Basin system was determined to have originated in the Las Vegas
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`Wash.
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`In the late 1990s, perchlorate loadings of up to 1,000 pounds per day were shown to be
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`entering the Colorado River system.
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`D.
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`Southern Nevada Water Authority Weir Proj eat
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`31.
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`In the late 1990s, SNWA, a collection of local agencies which address water issues
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`on a regional level in Nevada, developed the Las Vegas Wash Stabilization Program to protect
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`wetlands, reduce erosion, intercept contamination, minimize sediment transport to Lake Mead,
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`create recreation opportunities, and restore habitat in the Las Vegas Wash.
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`32.
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`Pursuant
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`to this program, SNWA constructed a number of permanent grade
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`stabilization weirs within the Clark County Wetlands Park. A grade stabilization weir is a physical
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`barrier placed in a waterbody with the primary purpose to control flow to reduce erosion.
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`In the
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`late 2000s, SNWA proposed to construct additional weirs within the Las Vegas Wash near Clark
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`County Wetlands Park as part of this stabilization program.
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`33.
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`Two of the weirs, the Sunrise Mountain Weir and the Historic Lateral Weir, are
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`located downgradient of the AMPAC Site and the Henderson Site. The weir construction project
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`required SNWA to “dewater” the construction site areas by extracting groundwater in the vicinity
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`of the Sunrise Mountain Weir and the Historic Lateral Weir (“Weir Project”).
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`34.
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`The groundwater extracted during the Weir Project was projected to contain
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`approximately three tons of perchlorate.
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`35.
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`NDEP determined that direct discharge of the groundwater from the Weir Project
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`into the Las Vegas Wash without
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`treatment would substantially contribute to the continued
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`exceedance of the Nevada provisional maximum contaminant level for perchlorate of 18 parts per
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`billion within the Las Vegas Wash, and that any increase in perchlorate loading to the Las Vegas
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`Wash, a tributary to Lake Mead, and to the Colorado River, would threaten the environment and
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`drinking water sources for the Las Vegas Valley and for populations in Arizona and Southern
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`California.
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`36.
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`On April 12, 2016, given that treating groundwater extracted during the Weir Project
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`was a time-critical removal action, NDEP ordered NERT to provide NDEP with an Engineering
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`EvaluationfCost Analysis (“EEKCA”) evaluating the cost, feasibility, evaluation of remedial
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`alternatives, schedule, and permitting requirements for transferring, conveying and treating
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`groundwater extracted during the Weir Project before discharge into the Las Vegas Wash. A copy
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`of the order is attached as Ex. A.
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`3?.
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`On August 30, 2016, NERT submitted an EEJCA to NDEP evaluating the cost,
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`feasibility, evaluation of remedial alternatives, schedule, and permitting requirements for
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`transferring and treating groundwater extracted during the Weir Project. The BE!CA was released
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`for public comment and no public comments were received.
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`38.
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`Based on NDEP’s review of the current groundwater data, NDEP believed the Weir
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`Project was located in an area of the Las Vegas Wash where the perchlorate groundwater plume
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`from the Henderson Site intersects the Las Vegas Wash.
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`39.
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`On March 3, 201?, NDEP ordered NERT to perform a removal action to treat
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`perchlorate-impacted groundwater generated during SNWA’s dewatering associated with the Weir
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`Project (“Weir Order”). NDEP determined that any increase in perchlorate loading to the Las Vegas
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`Wash, a tributary to Lake Mead, and to the Colorado River, would threaten the environment and
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`drinking water sources for the Las Vegas Valley and for populations in Arizona and Southern
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`California. The Weir Order required NERT to construct a treatment plant capable of treating 6,900
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`gallons per minute. A copy of the Weir Order is attached as Ex. B.
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`40.
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`Dewatering operations at the Sunrise Mountain Weir and the Historic Lateral Weir
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`occurred from January 2018 to August 2018. During the dewatering operations, NERT
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`continuously operated the treatment plant it constructed consistent with the Weir Order.
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`41.
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`In or about March 201?, Geosyntec Consultants,
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`Inc. prepared a Technical
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`Memorandum and submitted it to NDEP, that assessed and evaluated the capture zone created by
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`AMPAC’S existing treatment system of the groundwater migrating from the AMPAC Site to the
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`Las Vegas Wash. The purpose of this analysis was to determine if any perchlorate impacted
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`groundwater “escaped” the capture zone of AMPAC’S system. Based on the data presented in the
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`Technical Memorandum, NERT determined for the first
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`time,
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`that the vast majority of the
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`perchlorate contamination in the groundwater that originated from the AMPAC Site, which was
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`not otherwise captured by the AMPAC treatment system, flowed in the immediate vicinity of the
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`Weir Project. This contaminated groundwater was the water that SNWA extracted through the Weir
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`Project construction and NERT was treating.
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`42.
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`Subsequent investigations by NERT, including particle flow analysis and chemical
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`“fingerprinting” of the perchlorate plumes emanating from the AMPAC Site and the Henderson
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`Site and extending to the vicinity of the Weir Project, confirmed that the vast majority of the
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`perchlorate treated by NERT as part of the Weir Project, originated from the AMPAC Site.
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`Through the chemical analysis, NERT determined that the perchlorate migrating from the AMPAC
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`Site and the perchlorate migrating from the NERT Site are chemically distinct due to the difference
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`in levels of chlorate.
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`43.
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`The hazardous substances released at
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`the AMPAC Site have contaminated
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`groundwater in the Vicinity of the AMPAC Site, the Vicinity of the Weir Project and the Las Vegas
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`Wash, and NERT has incurred necessary response costs as a result of the release of hazardous
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`substances from AMPAC’s site. Accordingly, the Trustee, on behalf of NERT, seeks recovery of
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`and contribution for response costs from AMPAC.
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`FIRST CAUSE OF ACTION
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`(Cost Recovery Under Section 107 of CERCLA)
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`44.
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`Plaintiff repeats and re-alleges all of the foregoing allegations and incorporates the
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`same by this reference.
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`45.
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`Section 107(a)(4)(B) of CERCLA, 42 U.S.C. § 9607(a)(4)(B), provides that any
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`“covered person .
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`.
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`. shall be liable for .
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`.
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`. any other necessary costs of response incurred by any
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`other person consistent with the national contingency plan [the (“NCP”)].”
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`46.
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`NERT is a “person” within the meaning of Section 101(21) of CERCLA, 42 U.S.C.
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`§ 9601(21).
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`Defendant is a “person” within the meaning of Section 101(21) of CERCLA, 42
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`U.S.C. § 9601(21).
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`48.
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`The Henderson Site is a “facility” within the meaning of Section 101(9) of
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`CERCLA, 42 U.S.C. § 9601(9).
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`49.
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`The AMPAC Site is a “facility” within the meaning of Section 101(9) of CERCLA,
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`42 U.S.C. § 9601(9).
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`50.
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`Perchlorate, discovered at and downgradient of the Henderson Site and the AMPAC
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`Site is a “hazardous substance” within the meaning of Section 101(14) of CERCLA, 42 U.S.C. §
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`9601(14).
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`51.
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`During the time that PEPCON and AMPAC owned the AMPAC Site, disposal of
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`hazardous substances occurred at the AMPAC Site within the meaning of Section 101(29) of
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`CERCLA, 42 U.S.C. § 9601(29).
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`52.
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`Releases of hazardous substances have occurred at the AMPAC Site within the
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`meaning of Section 101(22) of CERCLA, 42 U.S.C. § 9601(22), and have caused NERT to incur
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`costs in response to those releases.
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`53.
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`AMPAC is liable under CERCLA as an “owner” or “operator.” An owner or
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`operator includes “any person owning or operating [an onshore facility],” and “any person who at
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`the time of disposal of any hazardous substance owned or operated any facility at which such
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`AnonNExs n1 Law
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`hazardous substances were disposed of.” Sections 107(a)(l) — (2) and 101(20)(A)(ii) under
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`CERCLA, 42 U.S.C. §§ 960?(a)(1) — (2) and 9601(20)(A)(ii).
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`54.
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`NERT has undertaken, and continues to undertake, actions at the Las Vegas Wash
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`within the meaning of Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), in response to releases
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`or threatened releases of hazardous substances.
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`55.
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`NERT has incurred more than $36 million in costs, which constitute “necessary
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`costs of response” incurred in a manner consistent with the NCP under Section 10?(a')(4')(B) of
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`CERCLA, 42 U.S.C. § 9607(a)(4)(B').
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`56.
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`Pursuant to Section 10?(a) of CERCLA, 42 U.S.C. §§ 9602(a'), AMPAC is strictly,
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`and jointly and severally, liable, or is otherwise liable as provided by applicable law, to NERT for
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`cost recovery for all necessary response costs incurred by NERT related to the Weir Project in the
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`past, and to be incurred by NERT in the future, in connection with the AMPAC Site.
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`5?.
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`NERT seeks cost recovery andr’or reimbursement from AMPAC for all response
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`costs, together with interest thereon, that NERT has incurred and will incur related to the Weir
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`Project as a result of the release of hazardous substances from the AMPAC Site into the
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`environment. NERT seeks this cost recovery ands“or reimbursement based on AMPAC’s status as
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`an owner andr’or operator of a facility where hazardous substances and wastes were disposed
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`pursuant to CERCLA, 42 U.S.C. §§ 9607(a).
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`58.
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`As a direct and proximate result of AMPAC’s actions, NERT is entitled to recover
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`and obtain cost recovery and“or reimbursement for all past, present, and future response costs from
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`AMPAC pursuant to CERCLA, 42 U.S.C. § 9602(a).
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`59.
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`NERT also is entitled to interest on the amount recovered on this claim pursuant to
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`Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2).
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`SECOND CAUSE OF ACTION
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`(Contribution Under CERCLA Section 113)
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`60.
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`Plaintiff repeats and re-alleges all of the foregoing allegations and incorporates the
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`same by this reference.
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`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 11 of 16
`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 11 of 16
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`61.
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`Sections 1 13(f)(1) and (3)(B), 42 U.S.C. §96l 3(f‘)(l) and (3)(B), provide in relevant
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`part, that:
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`Any person may seek contribution from any other person who is liable or
`potentially liable under Section 960?(a). . ..
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`A person who has resolved its liability to the United States or a State for some or
`all of a response action or for some or all of the costs of such action in an
`administrative or judicially approved settlement may seek contribution from any
`person who is not party to a settlement. . ..
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`62.
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`NERT has resolved its liability to the State of Nevada for matters covered by the
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`Weir Order.
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`63.
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`AMPAC is a responsible party under CERCLA, but has not resolved its liability to
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`NERT, the United States or the State of Nevada with respect to the Weir Project.
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`64.
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`NERT has and will incur costs as a result of the release of hazardous substances
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`from the AMPAC Site into the environment that are greater than its allocable share of costs and
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`damages.
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`65.
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`AMPAC is liable to NERT for those response costs paid by NERT that are in excess
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`of its allocable share that is properly attributable to AMPAC.
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`66.
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`NERT requests that the Court determine the Parties’ allocable shares with respect to
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`response costs and damages and determine that AMPAC is liable to NERT for those response costs
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`and damages paid or incurred by NERT that are in excess of NERT’s allocable share and are
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`properly attributable to AMPAC.
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`6?.
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`Pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a') NERT is entitled to
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`recover interest on response costs and damages it has paid or will pay in the future in excess of
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`AMPAC’S allocable share.
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`THIRD CAUSE OF ACTION
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`(Declaratory Judgment for Future Response Costs)
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`68.
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`The Trustee repeats and re—alleges all of the foregoing allegations and incorporates
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`the same by this reference.
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`69.
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`Because NERT contends that AMPAC is responsible for payment of response costs,
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`an actual and substantial controversy exists between NERT and AMPAC regarding their respective
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`18524410.]i’055931000]
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`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 12 of 16
`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 12 of 16
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`rights and obligations for the response costs that have been incurred and the response costs that will
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`be incurred to address the contamination associated with the Weir Project. Additional response
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`costs will be needed to restore the Weir Project area to pre-proj ect conditions, which was caused in
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`whole or part by AMPAC and the releases or threatened releases at the AMPAC Site. No adequate
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`or speedy remedy exists for NERT in the absence of such a judicial declaration.
`
`70.
`
`Pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g')(2'), NERT is
`
`entitled to a declaratory judgment against AMPAC that will be binding in any subsequent action to
`
`recover further response costs incurred by NERT, in connection with contamination associated with
`
`the Weir Project. This determination will prevent a multiplicity of litigation.
`
`FOURTH CAUSE OF ACTION
`
`(Contribution Under Nevada Law)
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`71.
`
`The Trustee repeats and re-alleges all of the foregoing allegations and incorporates
`
`the same by this reference.
`
`72.
`
`Nevada Revised Statutes Section 17.2250) provides “. . .where two or more persons
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`become jointly or severally liable in tort for the same injury to person or property ... there is a right
`
`of contribution among them even though judgment has not been recovered against all or any of
`
`them.”
`
`73.
`
`Section 17.225(1) also provides “[t]he right of contribution exists only in favor of a
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`tortfeasor who has paid more than his or her equitable share of the common liability.....”
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`74.
`
`Nevada Revised Statutes Section ”285(4) provides that if there is no judgment,
`
`the right of contribution is barred against the tortfeasor seeking contribution unless the tortfeasor
`
`has “discharged by payment the common liability within the statute of limitations period applicable
`
`to the claimant’s right of action against him or her and has commenced an action for contribution
`
`within 1 year after payment...”
`
`75.
`
`NERT is a “person” within the meaning of Section 17.225 of Nevada Revised
`
`Statutes.
`
`76.
`
`AMPAC is a “person” within the meaning of Section 17.225 of Nevada Revised
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`Statutes.
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`FENNEMORE CRAIG, PC.
`AnonNExs a1 Law
`LASVECaS
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`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 13 of 16
`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 13 of 16
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`7?.
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`AMPAC caused hazardous substances, including perchlorate, to be released from
`
`the AMPAC Site and contaminate the groundwater, and AMPAC’s actions were the proximate
`
`cause of the vast majority of the perchlorate contamination in the groundwater in the vicinity of the
`
`Weir Project.
`
`78.
`
`As a responsible party, AMPAC is strictly, and jointly and severally, liable for the
`
`release of hazardous substances from the AMPAC Site into the environment.
`
`79.
`
`AMPAC has not resolved its liability to, nor has it entered into a good faith
`
`settlement pursuant to Nevada Revised Statutes Section 11245 with NERT, the United States or
`
`the State of Nevada with respect to the contamination caused by AMPAC associated with the Weir
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`Project.
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`80.
`
`NERT has paid more than its equitable share of the common liability with respect
`
`to the groundwater treatment associated with the Weir Project.
`
`81.
`
`NERT has discharged by payment
`
`the common liability between NERT and
`
`AMPAC with respect to the groundwater treatment associated with the Weir Project.
`
`82.
`
`NERT is entitled to recover contribution from AMPAC for costs incurred in
`
`connection with the treatment associated with the Weir Project.
`
`FIFTH CAUSE OF ACTION
`
`(RestitutionfUnj ust Enrichment)
`
`83.
`
`The Trustee repeats and re—alleges all of the foregoing allegations and incorporates
`
`the same by this reference.
`
`84.
`
`NERT conferred a benefit on AMPAC, without AMPAC providing proper
`
`compensation to NERT.
`
`85.
`
`AMPAC is responsible for treating the perchlorate-contaminated groundwater
`
`emanating from the AMPAC Site, including the vast majority of the perchlorate-contaminated
`
`groundwater associated with the Weir Project.
`
`86.
`
`AMPAC knew, or should have known, that the vast majority of the perchlorate-
`
`contaminated groundwater associated with the Weir Project originated from the AMPAC Site.
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`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 14 of 16
`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 14 of 16
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`OCDOO‘NJCDU'l-Ih-UJN
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`8?.
`
`AMPAC knows that NERT has spent over $36 million to treat perchlorate-
`
`contaminated groundwater associated with the Weir Project
`
`for which AMPAC is legally
`
`responsible.
`
`88.
`
`AMPAC has failed andr’or refused to reimburse NERT for its expenditures to treat
`
`perchlorate-contaminated groundwater associated with the Weir Project that originated from the
`
`AMPAC Site.
`
`89.
`
`AMPAC was unjustly enriched by NERT’s treatment of the perchlorate-
`
`contaminated groundwater associated with the Weir Project for which AMPAC was responsible,
`
`and by unjustly benefitting from NERT’s expenditure of over $36 million to treat AMPAC’S
`
`perchlorate-contaminated groundwater associated with the Weir Project.
`
`90.
`
`AMPAC appreciated this benefit by acknowledging that some of AMPAC’S
`
`perchlorate-contaminated groundwater is not captured by its treatment system and enters the Las
`
`Vegas Wash in the vicinity of the Weir Project.
`
`91.
`
`AMPAC accepted and retained this benefit by allowing NERT to treat
`
`its
`
`perchlorate-contaminated groundwater knowing that AMPAC ’s groundwater treatment system was
`
`not capturing all of the contaminated groundwater originating from the AMPAC Site, and by its
`
`failure to take any action, or to reimburse NERT for its expenditures, towards the treatment of the
`
`perchlorate-contaminated groundwater associated with the Weir Project.
`
`92.
`
`It would be highly inequitable and unjust for AMPAC to retain the benefit of
`
`NERT’s groundwater treatment associated with the Weir Project without payment of the value of
`
`the treatment.
`
`93.
`
`NERT is entitled to judgment against AMPAC in an amount as determined by the
`
`Court, plus interest at the judgment rate and attorneys” fees and costs as permitted by law.
`
`WHEREFORE, the Trustee, on behalf ofNERT, prays that judgment be entered in its favor
`
`Prayer for Relief
`
`and against Defendant as follows:
`
`1 .
`
`declaring AMPAC liable for all or a portion of the response costs NERT has incurred
`
`28
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`and may incur in the future in connection with the Weir Project;
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`FENNEMORE CRAIG, PC.
`AnonNExs n1 Law
`LASVECnS
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`18524410.]r'055931.0001
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`-14-
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`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 15 of 16
`Case 2:21-cv-01166-APG-NJK Document 1 Filed 06/21/21 Page 15 of 16
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`2.
`
`awarding damages against AMPAC for the portion of the costs that NERT has
`
`expended (with interest thereon from the date of expenditure) in cleanup in connection with the
`
`Weir Project and in other activities preliminary and subsequent thereto;
`
`3.
`
`awarding NERT contribution against AMPAC for response costs and damages that
`
`it has and will incur (with interest thereon from the date of expenditure) in conn