Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
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`STATE OF NEW HAMPSHIRE
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`DEPARTMENT OF ENVIRONMENTAL )
`SERVICES
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`Plaintiff
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`v.
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`MCCORD CORP.,
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`Defendant.
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`____________________________________)
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`Civil No. _____________
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`COMPLAINT
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`Plaintiff, the State of New Hampshire Department of Environmental Services
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`(“Department”), by and through its attorney, the New Hampshire Office of the Attorney General
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`(collectively, the “State of New Hampshire” or “State”), hereby files this complaint against
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`Defendant McCord Corporation (“McCord”) and alleges as follows:
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`NATURE OF THE ACTION
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`For many years, automobile parts were manufactured at the Collins & Aikman
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`1.
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`Plant (Former) Superfund Site located in Farmington, New Hampshire (the “Site”). Between the
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`1960s and 1970s, McCord operated the facility at the Site. Specifically, McCord’s manager of
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`safety and ecology played a key role in decisions about waste management, environmental
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`compliance, and plant expansion at the Site. Moreover, McCord denied and later approved the
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`construction of certain wastewater treatment features at the Site.
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`2.
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`The manufacturing process and plant design at the Site caused groundwater at the
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`Site to be contaminated with volatile organic compounds (“VOCs”). Fireman’s Fund Ins. Co. v.
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`Ex-Cell-O Corp., 750 F. Supp. 1340, 1351 (E.D. Mich. 1990).
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`Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 2 of 18
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`3.
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`The VOCs found in the groundwater at the Site can harm human health and the
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`environment in a variety of different ways and are consequently designated hazardous substances
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`under the Comprehensive Environmental Response, Compensation, and Liability Act, as
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`amended (“CERCLA”).
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`4.
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`The State brings this civil action against McCord under Sections 107 and 113 of
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`CERCLA, 42 U.S.C. §§ 9607 & 9613 as well as New Hampshire Revised Statutes Annotated ch.
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`147-A and 147-B, to recover the costs the State has incurred by responding to releases and
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`threatened releases of hazardous wastes and hazardous substances into the environment at or
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`from the Site. The State also seeks a declaratory judgment that McCord is liable for costs that
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`the State will continue to incur by responding to and remediating the Site.
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`JURISDICTION
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`This Court has jurisdiction over the subject matter of this action and over the
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`5.
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`parties to this action. 42 U.S.C. §§ 9607 & 9613(b); 28 U.S.C. §§ 1331, 1345, and 1367.
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`6.
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`Venue is proper in this district under 28 U.S.C. § 1391(b)(2) and Sections 106(a)
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`and 113(b) of CERCLA, 42 U.S.C. §§ 9606(a) & 9613(b), because the releases or threatened
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`releases of hazardous substances that gave rise to this claim occurred in this district, and because
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`the Site is located in this district.
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`DEFENDANT
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`7.
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`Defendant McCord Corporation is incorporated under Michigan law. McCord is
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`hereinafter referred to as “McCord Michigan” or “McCord.”
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`8.
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`Defendant McCord is currently headquartered in Troy, Michigan.
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`Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 3 of 18
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`STATUTORY BACKGROUND
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`Congress enacted CERLCA in 1980 to provide a comprehensive governmental
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`9.
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`mechanism for remediating hazardous substances and funding such remediation and related
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`enforcement activities, which are known as “response actions.” 42 U.S.C. §§ 9604(a), 9601(25).
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`10.
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`Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a), provides in pertinent part:
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`Notwithstanding any other provision or rule of law, and subject only to the
`defenses set forth in subsection (b) of this Section… (2) any person who at
`the time of disposal of any hazardous substance owned or operated any
`facility at which such hazardous substances were disposed of,…shall be
`liable for (A) all costs of removal or remedial action incurred by the
`United States Government or a State or an Indian tribe…not inconsistent
`with the National Contingency Plan.
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`In actions for cost recovery, Section 113(g)(2) of CERCLA requires the district
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`11.
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`court to enter a declaratory judgment “on liability for response costs or damages that will be
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`binding on any subsequent action or actions to recover further response costs or damages.” 42
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`U.S.C. § 9613(g)(2).
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`12.
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`New Hampshire Revised Statutes Annotated ch. 147-A, “Hazardous Waste
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`Management,” and ch. 147-B, “Hazardous Waste Cleanup Fund,” were both enacted in 1981.
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`13.
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`RSA 147-A:9 provides for strict liability of:
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`any owner, operator, generator, or transporter who causes or suffers the
`treatment, storage, transportation or disposal of hazardous waste in
`violation of RSA 147-A or rules adopted or permits issued under RSA
`147-A…[and] shall be strictly liable for costs directly or indirectly
`resulting from the violation relating to: (a) Containment of hazardous
`wastes; (b) Necessary cleanup and restoration of the site and the
`surrounding environment; and (c) Removal of the hazardous wastes.
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`14.
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`RSA 147-B:10, I provides, in pertinent part, that:
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`[s]ubject only to the defenses set forth in RSA 147-B:10-a and the
`exclusions and limitations set forth in RSA 147-B:10, IV and V, any
`person who: (a) Owns or operates a facility; (b) Owned or operated a
`facility at the time hazardous waste or hazardous materials were disposed
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`there…shall be strictly liable for all costs incurred by the state in
`responding a release or threatened release of hazardous waste or hazardous
`material at or from the facility as specified in paragraph II.
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`RSA 147-B:10, II continues that:
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`15.
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`[c]osts recoverable by the state under paragraph I shall include all costs
`relating to: (a) Containment of the hazardous wastes or hazardous
`materials. (b) Necessary cleanup and restoration of the site and the
`surrounding environment. (c) Removal of the hazardous wastes or
`hazardous materials. (d) Such actions as may be necessary to monitor,
`assess and evaluate the release or threat of release of a hazardous waste or
`hazardous material; or to mitigate damage to the public health or welfare
`that may otherwise result from a release or threat of release.
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`Under CERCLA, an “owner or operator” of an onshore facility is “any person
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`16.
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`owning or operating such facility.” 42 U.S.C. § 9601(20)(A)(ii).
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`17.
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`The Supreme Court of the United States has explained that in the context of
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`CERCLA, “an operator must manage, direct, or conduct operations specifically related to
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`pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or
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`decisions about compliance with environmental regulations.” United States v. Bestfoods, 524
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`U.S. 51, 66-67 (1998). This theory of direct liability is distinct from derivative operator liability
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`whereby a parent company can be liable for the actions of a subsidiary under a theory of veil
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`piercing. Id. at 64-65.
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`18.
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`In Bestfoods, the Court recognized a number of circumstances in which a parent
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`company can be liable as an operator under CERCLA:
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`[(1)] when the parent operates the facility in the stead of its subsidiary or
`alongside the subsidiary in some sort of joint venture;…[(2) when] a dual
`officer or director might depart so far from the norms of parental influence
`exercised through dual officeholding as to serve the parent, even when
`ostensibly acting on behalf of the subsidiary in operating the
`facility…[and (3) when] an agent of the parent with no hat to wear but the
`parent’s hat might manage or direct activities at the facility.
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`Id. at 71.
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`GENERAL ALLEGATIONS
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`Description and History of the Site
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`The Site includes two parcels located south of New Hampshire Route 11: (i) a
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`19.
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`96.34-acre parcel located on Davidson Drive, identified by the Town of Farmington Tax
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`Assessor’s office as Map R31, Lot 34; and (ii) a 10-acre parcel located at 56 Davidson Drive,
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`identified by the Town of Farmington Tax Assessor’s office as Map R36, Lot 2. Collectively,
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`these parcels are referred to as the former Collins and Aikman Automotive Interiors, Inc.
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`property.
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`20.
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`The Site also includes approximately 166 acres affected by the Site-related
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`groundwater contaminate plume, and extends across the north side of Route 11. The affected
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`area north of Route 11 is roughly bounded by NH Route 11, NH Route 53 (Main Street) to the
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`east, and Pokamoonshine Brook to the north/northwest.
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`21.
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`From at least 1966 to approximately 2006, Davidson Rubber Company, Inc.
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`(“Davidson Rubber”) manufactured instrument panels, bumpers, fascias, and other automobile
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`parts at a plant located at the Site (hereinafter referred to as “the Farmington Plant”).
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`22. Manufacturing processes conducted at the Farmington Plant included
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`polyurethane foam molding; construction, washing, and painting of polyvinyl chloride (“PVC”)
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`shells, and assembly of finished parts.
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`23.
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`Solvents used at the Farmington Plant included acetone, isopropyl alcohol,
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`methylene chloride, methyl isobutyl ketone, methyl ethyl ketone, tetrachloroethene (also called
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`perchlorethylene, or “PCE”), toluene, trichloroethene (“TCE”), and xylene.
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`24. Waste generated during manufacturing operations at the Farmington Plant,
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`included, without limitation, the following:
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`a. Sludge from vapor degreasing process in which PCE was used to remove oil from
`metal structural inserts;
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`b. Waste plastisol1 generated from the manufacture of PVC shells;
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`c. Paint waste, including toluene, xylene, and methyl ethyl ketone, generated by
`cleaning paint equipment;
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`d. Soapy liquid and solid waste from washing processes;
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`e. Methylene chloride used to flush urethane foam-making nozzles;
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`f. Still bottoms from distilling foam and methylene chloride to reclaim methylene
`chloride;
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`g. Solvent-soaked rags used to wipe off vinyl shells; and
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`h. Vinyl and urethane scraps.
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`25.
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`At various times, wastewater from the manufacturing processes at the Farmington
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`Plant discharged into an unnamed tributary of the Pokamoonshine Brook; over the ground at the
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`northern end of the Farmington Plant; into a percolating lagoon at the Plant; and into the ground
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`via a sewage disposal system with a leach field.
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`26.
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`As of at least 1990, groundwater at the Site was known to contain
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`dichloroethylene, methylene chloride, PCE, TCE, toluene, and vinyl chloride. Fireman’s Fund,
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`750 F. Supp. at 1345.
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`27.
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`28.
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`Dichloroethylene is produced from the breakdown of PCE and TCE.
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`Investigations in the late 2010s and 2020s have demonstrated that chromium,
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`perfluorooctanoic acid (“PFOA”), and perfluorooctane sulfonate (“PFOS”) are also in the Site’s
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`groundwater.
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`1 Plastisol is a liquid suspension of PVC used to manufacture automobile dashboard shells at the
`Farmington Plant.
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`29.
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`In July 2012, EPA completed a Hazard Ranking System evaluation, and with the
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`Department’s support, proposed the Site for inclusion on the EPA’s National Priorities List.
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`30.
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`31.
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`In 2013, EPA listed the Site on the National Priorities List.
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`In December 2014, EPA began a Remedial Investigation for the Site in
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`coordination with the Department. Ongoing Remedial Investigation activities include extensive
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`soil, groundwater, and surface water sampling to evaluate the contamination. Future work
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`involves additional data collection necessary to create a Feasibility Study to evaluate remedial
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`alternatives prior to the publication of a Record of Decision, and oversight work, among other
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`things.
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`Corporate History of Defendant
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`32.
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`As of at least 1964, McCord Corporation was incorporated under the laws of the
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`State of Maine (hereinafter, “McCord Maine”).
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`33.
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`In 1964, McCord Maine entered into a Plan and Agreement of Reorganization
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`with Davidson Rubber Company, Inc., incorporated in New Hampshire.
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`34.
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`Under that plan, McCord Maine purchased substantially all assets and assumed
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`substantially all of the liabilities of Davidson Rubber Company, Inc., incorporated in New
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`Hampshire, including the Farmington Plant.
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`35.
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`As a result of the 1964 Plan and Agreement of Reorganization, Davidson Rubber
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`Company, Inc., as incorporated in New Hampshire was reorganized as Davidson Rubber, Inc.,
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`organized under Delaware law and is the entity referred to in Paragraph 21.
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`36.
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`37.
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`As of at least 1966, Davidson Rubber owned and operated the Farmington Plant.
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`Davidson Rubber’s corporate letterhead and internal memos in the early 1970s
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`identified “Davidson Rubber, Inc.” as a “Division of McCord.”
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`38.
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`In 1974, Davidson Rubber sent a letter to EPA Region 1 about a pending
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`environmental permit on letterhead labeled, “Davidson Rubber Company Incorporated…a
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`Division of McCord.”
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`39. McCord Maine’s annual shareholder reports from the mid-1960s and 1970s listed
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`“Davidson Rubber Inc.” as a “division” of McCord Maine.
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`40.
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`In the 1970s, Davidson Rubber was publicly held out as a division of McCord
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`Maine.
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`41.
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`As of at least 1977, Ex-Cell-O Corp., a Michigan corporation (“Ex-Cell-O”),
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`organized XLO, Inc., also a Michigan corporation, as a wholly owned subsidiary.
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`42.
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`Through a 1977 Agreement and Plan of Merger McCord Maine, including
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`Davidson Rubber, merged with and into XLO, Inc. and XLO, Inc. became the surviving entity.
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`43.
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`In 1978, XLO, Inc. was renamed McCord Corporation. This corporation is the
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`same entity defined in Paragraph 7 as “McCord Michigan.”
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`44. McCord Michigan is the successor in interest to McCord Maine per the 1977
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`Agreement and Plan of Merger.
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`45.
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`Starting in 1986, Ex-Cell-O was liquidated, and its subsidiary McCord Michigan
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`(including Davidson Rubber), and other assets and liabilities of Ex-Cell-O, were transferred to
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`other entities.
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`46.
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`In 1987, Davidson Rubber was renamed Davidson Textron, Inc., which was later
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`renamed Textron Automotive Interiors, Inc. in 1995.
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`47.
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`In 2001, Collins and Aikman Products Company purchased Textron Automotive
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`Interiors, Inc., which was renamed Collins and Aikman Automotive Interiors, Inc.
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`48.
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`In 2005, Collins and Aikman Corporation filed for bankruptcy for itself and its
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`subsidiary companies, including Collins and Aikman Automotive Interiors, Inc.
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`McCord’s Operations and Decisions Regarding Waste Handling at the Farmington Plant
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`49.
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`As of 1964, Mr. Robert Birch (“Birch”) was an assistant chief engineer at
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`Davidson Rubber.
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`50.
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`51.
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`In 1971, Birch became the manager of safety and ecology for McCord Maine.
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`As the manager of safety and ecology for McCord Maine, Birch worked with
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`McCord’s “divisions on ways to reduce or eliminate any air, water[,] or noise pollution that
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`McCord manufacturing plants may generate.”
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`52.
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`As of at least 1971, Birch worked out of McCord Maine’s headquarters in Detroit,
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`Michigan.
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`53.
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`In July 1971, the average daily flow of effluent from the Farmington Plant was
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`approximately 60,000 gallons.
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`54.
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`By at least December 1971, effluent from plant operations drained into a culvert
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`beginning at a parking lot at the southern end of the Farmington Plant, which drained into an
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`unnamed tributary of the Pokamoonshine Brook. This culvert is identified as the South Storm
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`Sewer on Figure 1.
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`55.
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`In November 1971, after reviewing Farmington Plant data, Birch directed five
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`actions that “should be done on a crash basis” to address the effluent draining into
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`Pokamoonshine Brook.
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`56.
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`Four of the actions as directed by Birch were implemented at the Farmington
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`Plant.
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`57.
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`The fifth action directed by Birch as referenced in Paragraph 55 was not
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`implemented after determining that it was infeasible.
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`58.
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`By at least 1971, Birch and certain managers of Davidson Rubber expressed
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`concern that polluted runoff from the South Storm Sewer at the Farmington Plant into
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`Pokamoonshine Brook could create a potential problem for Davidson Rubber and the
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`Farmington Plant from both a legal and community relations standpoint.
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`59.
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`In 1971, Birch suggested investigating whether a retention lagoon could treat the
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`runoff from the Farmington Plant.
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`60.
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`In 1972, Birch reviewed and commented on a proposal submitted by Davidson
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`Rubber’s environmental consultant to address runoff from the Farmington Plant.
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`61.
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`As of at least May 1973, officials from the Town of Farmington and Farmington
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`Village Precinct reported discolored water exiting from the Farmington Plant.
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`62.
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`On information and belief, in May 1973, to avoid the discharge of “illegal waste
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`water” into Pokamoonshine Brook, Davidson Rubber requested an appropriation from McCord
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`Maine to redirect the wastewater on the northern end of the Farmington Plant.
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`63. Wastewater on the northern end of the Farmington Plant was redirected to the
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`North Storm Sewer shown on Figure 1.
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`64.
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`The redirected wastewater described in Paragraph 62 was described as
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`“unsightly,” “malodorous,” and an “attractive nuisance.”
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`65.
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`In July 1973, Birch issued a memorandum to all McCord facilities, including the
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`Farmington Plant, directing certain operational changes to help ensure timely compliance with
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`the newly elected federal Water Pollution Control Act, passed in October of 1972 (otherwise
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`known as the Clean Water Act).
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`66.
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`In August 1973, Davidson Rubber sent an appropriations request to McCord
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`Maine to complete an engineering study to build a wastewater treatment facility, with an
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`alternatives analysis, to address water pollution concerns at the Farmington Plant.
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`67. McCord Maine deferred Davidson Rubber’s 1973 appropriations request for the
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`engineering study to build a wastewater treatment facility at the Farmington Plant.
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`68.
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`In or about April 1974, Birch inspected the Farmington Plant and its continued
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`water pollution discharge from the North Storm Sewer outfall.
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`69.
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`In an April 17, 1974 memo, entitled “Farmington Water Problem,” and labeled
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`“McCord Intra-Company Correspondence,” Birch wrote:
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`This water is impounded briefly, where suspended PVA2 agglomerates
`and floats to the surface, creating a foul waste with very poor visual
`characteristics, being milky in appearance and leaving any grass and
`shrubbery in its path blackened and dead.
`…
`The community problems that would be raised by general knowledge of
`such a waste stream and the concomitant poor publicity resulting certainly
`behoove us to take immediate action to control this condition…. We are
`and have been in violation of the law by not applying for an EPA
`Discharge Permit for this waste.
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`In the April 17, 1974 memo referenced in Paragraph 69, Birch made several
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`70.
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`recommendations to address the water pollution problem at the Farmington Plant, including
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`seeking an appropriations request for water conservation studies. Birch stated that he would “see
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`that [the appropriation request] does not get hung up in Detroit,” the location of McCord Maine’s
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`headquarters.
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`71.
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`In May 1974, Davidson Rubber submitted an appropriations request to McCord
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`Maine that included a proposal to evaluate different alternatives for addressing wastewater at the
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`Farmington Plant.
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`2 Polyvinyl alcohol, also known as PVA, was used at the Farmington Plant.
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`72.
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`In a memorandum discussing the May 1974 appropriations request, a Davidson
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`Rubber employee wrote that “[t]his program has been reviewed with Dick Birch on two
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`occasions this past year and had his endorsement as indicated in his correspondence of 4-17-74.”
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`73.
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`In June 1974, Birch received copies of wastewater treatment study schedules to
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`implement his proposed course of action to address the wastewater discharge problem from the
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`North Storm Sewer at the Farmington Plant.
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`74.
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`On July 26, 1974, Davidson Rubber’s consultant finalized a Preliminary
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`Engineering Report, summarizing its analysis of alternatives for addressing the wastewater
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`discharge from the North Storm Sewer.
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`75.
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`The July 26, 1974 report referenced in Paragraph 74, which included a lagoon
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`system to percolate contaminated wastewater into the ground, noted the lagoon system was more
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`cost-effective than the other options analyzed, but could cause groundwater contamination.
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`76.
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`On August 14, 1974, a Plant manager submitted an appropriations request and
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`accompanying memorandum to build the lagoon system.
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`77.
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`By 1975, the lagoon system was built, and North Storm Sewer outlet effluent
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`rerouted to it.
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`78.
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`On information and belief, McCord Maine approved the appropriations request to
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`construct the lagoon system at the Farmington Plant.
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`79. Memos regarding concerns about water pollution from the Farmington Plant were
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`on letterhead that described Davidson Rubber as a “division of McCord [Maine].”
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`80.
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`In February 1974, Birch directly communicated by telephone with EPA to request
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`reduced sampling requirements under Davidson Rubber’s 1974 permit application to discharge
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`runoff from the Farmington Plant to Pokamoonshine Brook under the National Pollutant
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`Discharge Elimination System (“NPDES”).
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`81.
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`Birch received copies of water quality monitoring reports sent by the Farmington
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`Plant to EPA in accordance with the Farmington Plant’s NPDES Permit.
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`82.
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`In 1977, Birch directly managed the expansion of the Plant’s main building,
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`including the construction of a sewage waste disposal system with a leach field for the expanded
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`building.
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`83.
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`The Remedial Investigation for the Site identified septic leach fields as a source
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`of contamination on the Site.
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`Insurance Litigation
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`84.
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`In or about 1985, Ex-Cell-O, McCord Michigan, and Davidson Rubber
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`(collectively, the “Policyholders”) sought a declaratory judgment against various insurance
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`carriers regarding coverage for environmental contamination at the Farmington Plant and at other
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`facilities. Fireman’s Fund Ins. Co. v. Ex-Cell-O Corp., 750 F. Supp. 1340 (E.D. Mich. 1990).
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`85.
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`The insurance policies at issue in the Fireman’s Fund litigation were issued to
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`McCord and named Davidson Rubber as an additional named insured. Fireman’s Fund Ins., 750
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`F. Supp. at 1344.
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`86.
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`The insurance policies at issue in the Fireman’s Fund litigation obligated the
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`insurance carriers to indemnify the Policyholders for property damage caused by an occurrence,
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`which was defined in the policies as an “accident, including continuous or repeated exposure to
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`conditions, which results, during the policy period, in…property damage neither expected nor
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`intended from the standpoint of the insured….” Id. at 1345 (ellipses in original).
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`87.
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`In holding that the insurance carriers were not obligated to indemnify the
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`Policyholders, the district court found:
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`The design and operation of the Farmington Plant facilitated disposal of
`hazardous liquid waste directly into the environment. Davidson [Rubber]
`made various modifications to its operation over the years., Initially,
`waste water was discharged into the Pokamoonshine Brook tributary, then
`onto the north end of the [Farmington Plant], and later into the lagoon
`system. Consistent, however, throughout these changes was
`[P]olicyholders’ direct discharge of contaminants into the environment.
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`Fireman’s Fund Ins., 750 F. Supp. at 1345.
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`SPECIFIC ALLEGATIONS
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`88. McCord Maine was a “person” as defined by CERCLA. 42 U.S.C. § 9601(21).
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`89. McCord Maine was a “person” as defined by N.H. RSA 147-A:2, XII and N.H.
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`RSA 147-B:2, IX.
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`90. McCord Michigan is a “person” as defined by CERCLA. 42 U.S.C. § 9601(21).
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`91. McCord Michigan is a “person” as defined by N.H. RSA 147-A:2, XII and N.H.
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`RSA 147-B:2, IX.
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`92. McCord Maine operated Davidson Rubber as a division of McCord Maine.
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`93. McCord Maine managed, directed, or conducted operations related to the leakage
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`or disposal of hazardous substances, hazardous wastes, and/or hazardous materials at the
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`Farmington Plant.
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`94. McCord Maine made decisions about waste disposal and compliance with
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`environmental regulations at the Farmington Plant.
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`95. McCord Maine operated the Farmington Plant.
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`96. McCord Maine operated the Farmington Plant at the time of disposal of hazardous
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`substances, hazardous wastes, and/or hazardous materials at the Farmington Plant.
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`Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 15 of 18
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`97. McCord Michigan is the successor-in-interest to McCord Maine for McCord
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`Maine’s CERCLA, N.H. RSA 147-A, and N.H. RSA 147-B liabilities associated with the
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`Farmington Plant.
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`98.
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`The Farmington Plant is a “facility” as defined by CERCLA. 42 U.S.C. §
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`9601(9).
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`99.
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`The Farmington Plant is a “facility” as defined by N.H. RSA 147-A:2, IV and
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`RSA 147-B:2, III.
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`100. Among other chemicals, PCE, TCE, dichloroethylene, toluene, and methylene
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`chloride were disposed of at the Farmington Plant at least between 1966 and 1977.
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`101. PCE, TCE, dichloroethylene, toluene, and methylene chloride are “hazardous
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`substances” and “hazardous wastes” as defined by CERCLA and N.H. RSA 147-A and N.H.
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`RSA 147-B and administrative rules. 42 U.S.C. § 9601(14); 40 C.F.R. § 302.4; N.H. RSA 147-
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`A:2, VII; and N.H. RSA 147-B:2, VII.
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`102. The State of New Hampshire Department of Environmental Services has incurred
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`at least $166,000 in response costs at the Site that have not been reimbursed.
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`103. The unreimbursed response costs referenced in Paragraph 102 are not inconsistent
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`with the National Contingency Plan promulgated under CERCLA Section 105, 42 U.S.C. §
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`9605, and codified at 40 C.F.R. Part 300.
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`CLAIM FOR RELIEF
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`Cost Recovery under CERCLA Section 107, N.H. RSA 147-A, and N.H. RSA 147-B
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`104. The State re-alleges paragraphs 1-103 above as if fully set forth herein.
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`105. McCord Michigan is a person, or a successor-in-interest toa person, who at the
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`time of disposal of hazardous substances and/or hazardous wastes operated the Farmington Plant,
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`Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 16 of 18
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`which is a facility from which there was a release or threatened release of hazardous
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`substances/hazardous wastes.
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`106.
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`In response to the release or threatened release of hazardous substances and/or
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`hazardous wastes, the State of New Hampshire Department of Environmental Services has
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`incurred costs that are not inconsistent with the National Contingency Plan promulgated under
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`CERCLA Section 105, 42 U.S.C. § 9605, and codified at 40 C.F.R. Part 300. The State expects
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`that it will incur additional response costs in connection with the Farmington Plant.
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`107. Under Section 107(a)(2), N.H. RSA 147-A:9, and N.H. RSA 147-B:10, I-II,
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`McCord Michigan is jointly and strictly liable to the State for all costs incurred and to be
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`incurred by the State in connection with the Site, including enforcement costs and interest on all
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`costs.
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`108.
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`In accordance with Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), and
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`pursuant to N.H. RSA 147-A and N.H. RSA 147-B, the State is entitled to declaratory judgment
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`that McCord Michigan is jointly and severally liable to the State for future response costs to be
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`incurred by the State in connection with the Site.
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`RELIEF REQUESTED
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`Wherefore, Plaintiff, the State of New Hampshire, respectfully requests that the Court
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`grant the following relief:
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`A.
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`Enter judgment in favor of the State holding Defendant jointly and severally
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`liable under Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), N.H. RSA
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`147-A:9, and N.H. RSA 147-B:10, I-II, for unreimbursed response costs incurred
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`by the State relating to the Site, including enforcement costs and prejudgment
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`interest;
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`Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 17 of 18
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`B.
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`Enter a declaratory judgment on Defendant’s liability that will be binding on any
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`subsequent action for further response costs, pursuant to Section 113(g)(2) of
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`CERCLA, 42 U.S.C. § 9613(g)(2), N.H. RSA 147-A, and N.H. RSA 147-B; and
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`C.
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`Grant such other relief as the Court deems just and proper.
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`DATE: August 12, 2022____
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`Respectfully submitted,
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`STATE OF NEW HAMPSHIRE
`DEPARTMENT OF ENVIRONMENTAL
`SERVICES
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`By and through its attorney,
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`JOHN M. FORMELLA
`ATTORNEY GENERAL
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`/s/ Joshua Harrison____________________
`Joshua C. Harrison, Bar #269564
`Assistant Attorney General
`Environmental Protection Bureau
`Office of the Attorney General
`New Hampshire Department of Justice
`33 Capitol Street
`Concord, New Hampshire 03301-6397
`Joshua.C.Harrison@doj.nh.gov
`(603) 271-3679
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`North Storm
`Sewer
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`1977
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`Northwest Septic
`System Leachfields
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`
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`Case 1:22-cv-00289 Document 1 Filed 08/02/22 Page 18 of 18Case 1:22-cv-00317 Document 1 Filed 08/12/22 Page 18 of 18
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`To Pokamoonshine
`Brook
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`Figure 1
`Collins & Aikman (Former)
`Plant Site
`
`Farmington, New Hampshire
`E. Wright
`Drawn By:
`S. Nerney
`Designed By:
`C. Crocetti
`Reviewed By:
`3856.10
`Project No:
`January 2022
`Date:
`Figure Narrative
`This Figure is derived from Figure 1.1 of the Work
`Scope for Phase 3 RI Activities for the Collins &
`Aikman (Former) Plant Site, available at
`https://semspub.epa.gov/work/01/100010557.pdf.
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`Henry
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`WilsonHighway(Route11)
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`South Storm
`Sewer
`
`Unnamed
`Tributary
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`DavidsonDrive
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`X
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`X
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`X
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`X
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`X
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`X
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`Infiltration
`Basins/Lagoon
`System
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`90'
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`45'
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`0
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`90'
`
`Feet
`180'
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`
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`SAN NBOR
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`HEAD
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`c2022SANBORN,HEAD&ASSOCIATES,INC.
`
`File:P:\3800s\3856.00\GraphicsFiles\CAD\SourceAreaPlanUpdate_Request.dwgPlotDate:1-11-22
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