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Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 1 of 13 PageID: 1
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`PATRICK B. BRYAN
`Senior Attorney
`U.S. Department of Justice
`Environment and Natural Resources Division
`Environmental Enforcement Section
`P.O. Box 7611, Ben Franklin Station
`Washington, D.C. 20044-7611
`(202) 616-8299
`
`ALLAN URGENT
`Assistant United States Attorney
`District of New Jersey
`United States Attorney’s Office
`970 Broad Street, 7th Floor
`Newark, New Jersey 07102
`973-297-2079
`
`Counsel for Plaintiff United States of America
`
`GURBIR S. GREWAL
`ATTORNEY GENERAL OF NEW JERSEY
`Richard J. Hughes Justice Complex
`25 Market Street
`PO Box 093
`Trenton, NJ 08625-0093
`
`By: Daniel J. Harrison
`Deputy Attorney General
`(609) 376-2735
`
`Counsel for Plaintiffs New Jersey Department of
`Environmental Protection and the Administrator
`of the New Jersey Spill Compensation Fund
`
`
`
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 2 of 13 PageID: 2
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`__________________________________________
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`UNITED STATES OF AMERICA,
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`NEW JERSEY DEPARTMENT OF
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`ENVIRONMENTAL PROTECTION, and
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`ADMINISTRATOR, NEW JERSEY SPILL
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`COMPENSATION FUND
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`Plaintiffs,
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`v.
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`HERCULES LLC,
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`Defendant.
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`_________________________________________)
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`Civil Action No.
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`
`
`COMPLAINT
`
`
`
`The United States of America, by authority of the Attorney General of the
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`United States and through the undersigned attorney, acting at the request of the
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`Regional Administrator of the United States Environmental Protection Agency
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`(“EPA”) for Region II, the New Jersey Department of Environmental Protection
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`(“NJDEP”), and the Administrator of the New Jersey Spill Compensation Fund
`
`(“Administrator”) by and through the New Jersey Attorney General file this
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`complaint and allege as follows:
`
`NATURE OF THE ACTION
`
`1.
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`This is a civil action brought under to Sections 106 and 107 of the
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`Comprehensive Environmental Response, Compensation, and Liability Act, as
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`
`
`2
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 3 of 13 PageID: 3
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`amended, 42 U.S.C. §§ 9606 & 9607 (“CERCLA”), and the New Jersey Spill
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`Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24 (“the Spill Act”).
`
`2.
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`The United States seeks injunctive relief and recovery of costs
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`incurred in response to releases and threatened releases of hazardous substances
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`into the environment at or from the Hercules, Inc. Superfund Site (“Site”), located
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`in Gibbstown, Gloucester County, New Jersey.
`
`3.
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`NJDEP and the Administrator of the New Jersey Spill Compensation
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`Fund seek certain injunctive relief and the reimbursement of costs they have
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`incurred and will incur for the discharge of hazardous substances at the Site.
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`JURISDICTION AND VENUE
`
`4.
`
`This Court has jurisdiction over the subject matter of this action and
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`over the parties under 28 U.S.C. §§ 1331 and 1345 and Sections 106, 107, and
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`113(b) of CERCLA, 42 U.S.C. §§ 9606, 9607 & 9613(b).
`
`5.
`
`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2)
`
`and Sections 106(a) and 113(b) of CERCLA, 42 U.S.C. §§ 9606(a) & 9613(b),
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`because the releases or threatened releases of hazardous substances that gave rise
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`to this claim occurred in this district, and because the Site is located in this district.
`
`THE PARTIES
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`6.
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`The United States is authorized to seek costs of removal or remedial
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`action, as well as injunctive relief necessary to abate the imminent and substantial
`
`
`
`3
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`

`

`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 4 of 13 PageID: 4
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`endangerment to the public health or welfare, or the environment, that may result
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`from an actual or threatened release or threatened release of a hazardous substance
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`at or from a facility. 42 U.S.C. §§ 9606(a), 9607(a).
`
`7.
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`NJDEP is a principal department within the Executive Branch of the
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`State of New Jersey, vested with the authority to conserve and protect natural
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`resources, protect the environment, prevent pollution, and protect the public health
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`and safety. N.J.S.A. 13:1D-9.
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`8.
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`The Administrator is the chief executive officer of the New Jersey
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`Spill Compensation Fund (“the Spill Fund”). N.J.S.A. 58:10-23.11j. As chief
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`executive officer of the Spill Fund, the Administrator is authorized to approve and
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`pay any cleanup and removal costs Plaintiff NJDEP incurs, N.J.S.A. 58:10-
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`23.11f.c & .d, and to certify the amount of any claim to be paid from the Spill
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`Fund, N.J.S.A. 58:10-23-11j.d.
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`9.
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`Defendant Hercules LLC (“Hercules”) is a limited liability
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`corporation organized under the laws of the State of Delaware, with headquarters
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`located at 1313 North Market Street, Wilmington, Delaware, 19894, and is a
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`“person” as defined in Section 101(21) of CERCLA, 42 U.S.C. § 9601(21).
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`10. At relevant times, Hercules owned and operated the Site.
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`4
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 5 of 13 PageID: 5
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`STATUTORY BACKGROUND
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`11. CERCLA was enacted in 1980 to provide a comprehensive
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`governmental mechanism for abating releases and threatened releases of hazardous
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`substances and other pollutants and contaminants, and for funding the costs of such
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`abatement and related enforcement activities, which are known as “response”
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`actions, 42 U.S.C. §§ 9604(a), 9601(25).
`
`12. Section 104(a)(1) of CERCLA, 42 U.S.C. § 9604(a)(1), provides:
`
`Whenever (A) any hazardous substance is released or
`there is a substantial threat of such a release into the
`environment, or (B) there is a release or substantial threat
`of release into the environment of any pollutant or
`contaminant which may present an imminent and
`substantial danger to the public health or welfare, the
`President is authorized to act, consistent with the national
`contingency plan, to remove or arrange for the removal
`of, and provide for remedial action relating to such
`hazardous substance, pollutant, or contaminant at any
`time (including its removal from any contaminated
`natural resource), or take any other response measure
`consistent with the national contingency plan which the
`President deems necessary to protect the public health or
`welfare or the environment.
`
`13. Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in
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`pertinent part:
`
`Notwithstanding any other provision or rule of law, and
`subject only to the defenses set forth in subsection (b) of
`this Section –
`
`(1)
`[and]
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`the owner and operator of a vessel or a facility,
`
`
`
`5
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 6 of 13 PageID: 6
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`(2)
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`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,
`
`* * *
`
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`shall be liable for –
`
`(A)
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`all costs of removal or remedial action incurred by
`the United States Government . . . not inconsistent
`with the National Contingency Plan . . . .
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`14. Under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), the United
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`States is also authorized to seek injunctive relief necessary to abate the imminent
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`and substantial endangerment to the public health or welfare, or the environment,
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`that may result from an actual or threatened release of a hazardous substance at or
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`from a facility.
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`GENERAL ALLEGATIONS
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`15. The Site consists of about 350 acres located in Gibbstown, Gloucester
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`County, New Jersey. To manage cleanup operations of the Site, EPA has divided
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`response actions for the Site into portions referred to as “Operable Units.”
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`16. Operable Units 1 and 2 consists of response actions identified in an
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`EPA decision document, dated September 25, 2018, referred to as the Operable
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`Units 1 and 2 Record of Decision. The response actions for Operable Units 1 and
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`
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`6
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 7 of 13 PageID: 7
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`2 address contamination in groundwater, soil, sediments, and surface water in
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`specified areas at the Site.
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`17. The Site is a “facility” as defined in Section 101(9) of CERCLA, 42
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`U.S.C. § 9601(9).
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`18. There has been a “release” or a “threatened release” of “hazardous
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`substances” into the “environment” at or from the Site, as those terms are defined
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`in Section 101 of CERCLA, 42 U.S.C. §§ 9601.
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`19.
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`In undertaking response actions to address the release or threat of
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`release of hazardous substances at the Site, EPA has incurred and will continue to
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`incur “response costs” as defined in Section 101(25) of CERCLA, 42 U.S.C. §
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`9601(25). The response costs incurred thus far were incurred in a manner not
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`inconsistent with the National Contingency Plan, promulgated under Section 105
`
`of CERCLA, 42 U.S.C. § 9605, and codified at 40 C.F.R. Part 300.
`
`FIRST CLAIM FOR RELIEF
`Cost Recovery Under CERCLA Section 107
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`20. Paragraphs 1 through 19 are re-alleged and incorporated herein by
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`reference.
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`21. Hercules is liable under Section 107(a)(2) of CERCLA, 42 U.S.C. §
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`9607(a)(2), because it owned or operated a facility at the Site at the time hazardous
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`substances were disposed of at the facility.
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`
`
`7
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 8 of 13 PageID: 8
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`22. Hercules is liable under Section 107(a)(1) of CERCLA, 42 U.S.C. §
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`9607(a)(1), because it owns the Site.
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`23. Under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), Hercules is
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`jointly and severally liable for all Operable Units 1 and 2 costs incurred by the
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`United States, including enforcement costs and interest.
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`SECOND CLAIM FOR RELIEF
`Injunctive Relief Under CERCLA Section 106
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`24. Paragraphs 1 through 23 are re-alleged and incorporated herein by
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`reference.
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`25. EPA has determined that there is or may be an imminent and
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`substantial endangerment to the public health and welfare or the environment
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`because of actual or threatened releases of hazardous substances at or from the
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`Site.
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`26. EPA has determined that the response actions selected in the Operable
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`Units 1 and 2 Record of Decision are necessary to abate the danger or threat at or
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`from the Site.
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`27. Under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), Hercules is
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`jointly and severally liable for injunctive relief to abate the danger or threat
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`presented by a release or threatened release of hazardous substances into the
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`environment at or from the Site.
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`
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`8
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 9 of 13 PageID: 9
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`28. Under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), Hercules is
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`jointly and severally liable to undertake the Operable Units 1 and 2 response
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`actions as described in the Operable Units 1 and 2 Record of Decision.
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`THIRD CLAIM FOR RELIEF
`Cost Recovery Under the Spill Act
`
`29. Paragraphs 1 through 28 are re-alleged and incorporated herein by
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`reference.
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`30. Except as otherwise provided in N.J.S.A. 58:10-23.11g12, any person
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`who “has discharged a hazardous substance, or is in any way responsible for any
`
`hazardous substance” that is discharged, shall be liable, jointly and severally,
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`without regard to fault, for all cleanup and removal costs no matter by whom
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`incurred. N.J.S.A. 58:10-23.11g.c.(1).
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`31. Except as otherwise exempted under N.J.S.A. 58:10-23.11g.12, the
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`discharge of hazardous substances is a violation of the Spill Act, for which any
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`person who is the discharger of, or is in any way responsible for, any hazardous
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`substance that is discharged, is strictly liable, jointly and severally. N.J.S.A.
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`58:10-23.11g.c.(1).
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`32. NJDEP has incurred, and may continue to incur, costs as a result of
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`the discharge of hazardous substances at the Site.
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`33. The costs that NJDEP has incurred and will incur for the Site are
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`“cleanup and removal costs” within the meaning of N.J.S.A. 58:10-23.11b.
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`
`
`9
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`

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`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 10 of 13 PageID: 10
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`34. Hercules is a “person” within the meaning of N.J.S.A. 58:10-23.11b.
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`35. Hercules is a discharger and also a person that is in any way
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`responsible for the discharged hazardous substances, and is liable, jointly and
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`severally, without regard to fault, for all cleanup and removal costs that NJDEP has
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`incurred, and will incur, as a result of the discharge of hazardous substances at the
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`Site. N.J.S.A. 58.10-23.11g.c.(1).
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`PRAYER FOR RELIEF
`
`
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`WHEREFORE, Plaintiffs respectfully request that this Court:
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`a. Enter judgment in favor of Plaintiffs and against the Defendant, jointly
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`and severally, under Section 107(a)(4)(A) of CERCLA, 42 U.S.C. § 9607(a)(4)(A),
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`for unreimbursed response costs incurred by the United States relating to Operable
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`Units 1 and 2, including enforcement costs and prejudgment interest, but excluding
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`costs that are to be reimbursed under previously entered into administrative orders
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`on consent;
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`b. Enter an order under Section 106 of CERCLA, 42 U.S.C. § 9606(a),
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`requiring the Defendant to perform the Operable Units 1 and 2 response actions as
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`described in the Operable Units 1 and 2 Record of Decision;
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`c.
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`Enter a declaratory judgment on Defendant’s liability that will be
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`binding in any subsequent action for further response costs, pursuant to Section
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`113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2);
`
`
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`10
`
`

`

`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 11 of 13 PageID: 11
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`d.
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`Order the Defendant to reimburse Plaintiffs NJDEP and the
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`Administrator, jointly and severally, without regard to fault, for all cleanup and
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`removal costs Plaintiffs NJDEP and the Administrator have incurred at the Site,
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`with applicable interest;
`
`e.
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`Enter declaratory judgment against the Defendant, jointly and
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`severally, without regard to fault, for all cleanup and removal costs Plaintiffs
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`NJDEP and the Administrator may incur at the Site; and
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`f. Grant such other and further relief as the Court deems just and proper.
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`Respectfully submitted,
`
`JONATHAN D. BRIGHTBILL
`Principal Deputy Assistant Attorney General
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`Environment and Natural Resources Division
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`United States Department of Justice
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`September 28, 2020
`Dated
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`s/ Patrick B. Bryan
`PATRICK B. BRYAN
`Senior Attorney
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044-7611
`(202) 616-8299
`patrick.bryan@usdoj.gov
`
`CRAIG CARPENITO
`United States Attorney
`District of New Jersey
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`September 28, 2020
`Dated
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`ALLAN URGENT
`Assistant United States Attorney
`District of New Jersey
`United States Attorney’s Office
`970 Broad Street, 7th Floor
`Newark, New Jersey 07102
`973-297-2079
`
`Counsel for Plaintiff United States of America
`
`GURBIR S. GREWAL
`ATTORNEY GENERAL OF NEW JERSEY
`Richard J. Hughes Justice Complex
`25 Market Street
`PO Box 093
`Trenton, NJ 08625-0093
`
`s/ Daniel J. Harrison by Patrick B. Bryan
`DANIEL J. HARRISON
`Deputy Attorney General
`
`Counsel for Plaintiffs New Jersey Department of
`Environmental Protection and the Administrator of
`the New Jersey Spill Compensation Fund
`
`
`
`OF COUNSEL:
`
`WILLIAM J. REILLY, JR.
`Assistant Regional Counsel
`U.S. Environmental Protection Agency, Region 2
`290 Broadway, 17th Floor
`New York, NY 10007
`(212) 637-3154
`
`
`
`12
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`

`

`Case 1:20-cv-13377-RBK-KMW Document 1 Filed 09/28/20 Page 13 of 13 PageID: 13
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`CERTIFICATION UNDER LOCAL CIVIL RULE 11.2
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`In accordance with 28 U.S.C. § 1746, I certify that the matter in controversy
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`in the foregoing Complaint is not the subject of any other action pending in any
`court, or any pending arbitration or administrative proceeding.
`
`
`
`
`s/ Patrick B. Bryan
`PATRICK B. BRYAN
`Senior Attorney
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044-7611
`(202) 616-8299
`patrick.bryan@usdoj.gov
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`13
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