Case 2:22-cv-04344-JXN-JBC Document 1 Filed 06/30/22 Page 1 of 23 PageID: 1
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`FOR THE UNITED STATES:
`JOHN BRODERICK
`R. SHEA DIAZ
`NATALIE G. HARRISON
`Trial Attorneys
`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
`Broderick: (202) 305-0302
`Diaz: (202) 514-3211
`Harrison: (202) 305-0461
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`BEN KURUVILLA
`Assistant United States Attorney
`District of New Jersey
`United States Attorney’s Office
`970 Broad Street, 7th Floor
`Newark, New Jersey 07102
`(973) 297-2085
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`FOR DEFENDANTS:
`ISP Environmental Services Inc.
`1361 Alps Road
`Wayne, NJ 07470
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`G-I Holdings Inc.
`818 Washington Street
`Wilmington, DE 19801
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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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`Plaintiff,
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`ISP ENVIRONMENTAL SERVICES INC. and
`G-I HOLDINGS INC.,
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`v.
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`Defendants.
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`Civ. No. 22-CV-4344
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`COMPLAINT
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`The United States of America, by the authority of the Attorney General of the United
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`States, acting on behalf of the Regional Administrator of the U.S. Environmental Protection
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`Agency (“EPA”), Region 2, alleges as follows:
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`NATURE OF THE ACTION
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`1. This is a civil action against ISP Environmental Services Inc. (“IES”) and G-I
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`Holdings Inc. (“G-I”) (collectively, “Defendants”) seeking, pursuant to Sections 107(a) and
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`113(g)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of
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`1980, as amended (“CERCLA”), 42 U.S.C. §§ 9607(a) and 9613(g)(2), the recovery of
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`unreimbursed response costs incurred, and to be incurred, in response to releases and threatened
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`releases of hazardous substances into the environment at or from the LCP Chemicals, Inc.
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`Superfund Site in Linden, Union County, New Jersey (the “Site” or “LCP Site”). The United
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`States further seeks, pursuant to CERCLA Sections 106(b)(1) and 107(c)(3), 42 U.S.C.
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`§§ 9606(b)(1) and 9607(c)(3), civil penalties and punitive damages for Defendant IES’s failure
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`without sufficient cause to comply with a May 20, 2015, EPA Order directing IES to complete
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`the remedial design of the remedy selected for the Site.
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`JURISDICTION AND VENUE
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`2. This Court has jurisdiction over the subject matter of this action and over the
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`Defendants under 28 U.S.C. §§ 1331, 1345, and 1355 and Section 113(b) of CERCLA, 42
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`U.S.C. § 9613(b).
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`3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and Section
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`113(b) of CERCLA, 42 U.S.C. § 9613(b), because the releases and threatened releases of
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`hazardous substances that gave rise to the claims in this Complaint occurred in this district, and
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`because the Site is located in this district.
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`DEFENDANTS
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`4. Defendant IES is a corporation organized under the laws of the State of Delaware,
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`with its principal place of business in Covington, Kentucky. IES has offices located in
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`Bridgewater, New Jersey.
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`5. Defendant G-I is a corporation organized under the laws of the State of Delaware,
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`with its principal place of business in Parsippany, New Jersey.
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`STATUTORY BACKGROUND
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`6. CERCLA was enacted in 1980 to provide a comprehensive governmental
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`mechanism for abating releases and threatened releases of hazardous substances and other
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`pollutants and contaminants and for funding the costs of such abatement and related enforcement
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`activities, which are known as “response actions.” 42 U.S.C. §§ 9604(a) and 9601(25).
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`7. Under Section 104(a)(1) of CERCLA, 42 U.S.C. § 9604(a)(1):
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`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.
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`8. Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), provides in pertinent part:
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`[W]hen the President determines that there may be an imminent
`and substantial endangerment to the public health or welfare or the
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`environment because of an actual or threatened release of a
`hazardous substance from a facility, he may require the Attorney
`General of the United States to secure such relief as may be
`necessary to abate such danger or threat…. The President may also
`. . . take other action under this section including, but not limited
`to, issuing such orders as may be necessary to protect public health
`and the environment.
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`By Executive Order 12580, dated January 23, 1987, the President’s authority under Section
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`106(a) of CERCLA, 42 U.S.C. § 9606(a), has been delegated to the Administrator of EPA. The
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`Administrator of EPA has redelegated his functions under Section 106(a) to the Regional
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`Administrators of EPA, including the Regional Administrator of EPA Region 2, with the
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`authority to redelegate such functions. The Regional Administrator of EPA Region 2 has
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`redelegated his functions under Section 106(a) to the Director of the Superfund and Emergency
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`Management Division, formerly known as the Emergency and Remedial Response Division,
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`EPA Region 2.
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`9. Section 106(b)(1) of CERCLA, 42 U.S.C. § 9606(b)(1), provides in pertinent part:
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`Any person who, without sufficient cause, willfully violates, or
`fails or refuses to comply with, any order of the President under
`subsection (a) of this section may, in an action brought in the
`appropriate United States district court to enforce such order, be
`fined not more than $25,000 for each day in which such violation
`occurs or such failure to comply continues.
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`Under the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as
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`amended by the Debt Collection Improvements Act of 1996, 31 U.S.C. § 3701, and the Federal
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`Civil Penalties Inflation Act Improvement Act of 2015 (Section 701 of Pub. L. No. 114-74), and
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`pursuant to EPA’s Civil Monetary Penalty Inflation Adjustment Rule, 40 C.F.R. Part 19, the
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`maximum amount of the civil penalties provided under Section 106(b)(1) of CERCLA was
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`increased to $37,500 for violations occurring before November 2, 2015, and $62,689 for
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`violations occurring after November 2, 2015 and assessed on or after January 12, 2022.
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`10. Section 107(a) 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—
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`(1) the owner and operator of a vessel or a facility, [and]
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`(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—
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`(A) all costs of removal or remedial action incurred by
`the United States Government, or a State…not
`inconsistent with the national contingency plan . . . .
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`The term “owner or operator” is defined in Section 101(20)(A) of CERCLA, 42 U.S.C.
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`§ 9601(20)(A), in pertinent part as “in the case of an onshore facility or an offshore facility, any
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`person owning or operating such facility . . . .”
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`11. Section 107(c)(3) of CERCLA, 42 U.S.C. § 9607(c)(3), provides in pertinent part:
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`If any person who is liable for a release or threat of release of a
`hazardous substance fails without sufficient cause to properly
`provide removal or remedial action upon order of the President
`pursuant to section 9604 or 9606 of this title, such person may be
`liable to the United States for punitive damages in an amount at
`least equal to, and not more than three times, the amount of any
`costs incurred by the Fund as a result of such failure….
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`12. Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), provides in pertinent part:
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`In any such action [for recovery of the costs referred to in section
`9607]…, the court shall enter a declaratory judgment on liability
`for response costs or damages that will be binding on any
`subsequent action or actions to recover further response costs or
`damages.
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`13. Section 107(e)(1) of CERCLA, 42 U.S.C. § 9607(e)(1), provides in pertinent part:
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`No indemnification, hold harmless, or similar agreement or
`conveyance shall be effective to transfer from the owner or
`operator of any…facility or from any person who may be liable for
`a release or threat of release under this section, to any other person
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`the liability imposed under this section. Nothing in this subsection
`shall bar any agreement to insure, hold harmless, or indemnify a
`party to such agreement for any liability under this section.
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`SITE DESCRIPTION AND BACKGROUND
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`14. The LCP Site occupies approximately 26 acres of filled tidal wetlands located on
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`the Tremley Point peninsula in Linden, Union County, New Jersey. The Site is partly drained by
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`South Branch Creek, a tidal tributary that flows 0.3 miles to the Arthur Kill. It is bordered by the
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`Arthur Kill to the east, industrial facilities to the north/northeast, south, and west, and partially
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`bordered by railroad tracks to the south/southeast. Two drainage trenches, called the Northern
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`and Southern Off-Site Ditch, respectively, run along the Site’s southern boundary.
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`15. The LCP Site was owned and operated by GAF Corporation ((“Old GAF”),
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`formerly named General Aniline & Film Corporation) from the early 1950s until approximately
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`1971.
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`16. The LCP Site was owned and operated by Linden Chlorine Products, Inc., or its
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`successors, from approximately 1972 until the mid-1980s.
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`17. The LCP Site was part of and is adjacent to a larger parcel of land in Linden, New
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`Jersey, on which the General Aniline & Film Corporation owned and operated a multi-acre
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`chemical facility.
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`18. In the early 1950s, General Aniline & Film Corporation built a chlor-alkali
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`manufacturing plant (“GAF Plant”) on the Site and began to manufacture chemicals, including
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`chlorine and sodium hydroxide.
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`19. The GAF Plant utilized the chlor-alkali process, which created materials and
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`byproducts that contained residual amounts of mercury.
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`20. In or around 1971, Old GAF ceased chlorine manufacturing at the Site.
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`21. In or around 1972, Old GAF sold the LCP Site to Linden Chlorine Products, Inc.,
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`which continued operating the GAF Plant until at least 1982.
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`22. The purchase agreement between Old GAF and Linden Chlorine Products, Inc.
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`allowed Old GAF to retain certain real property interests on the LCP Site. These included
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`easements over railroad tracks, the right to store railroad cars, and shared electricity generation.
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`23. Old GAF, and later its successor corporation, retained ownership and operation of
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`the adjacent chemical production facility until it ceased production activities in 1991.
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`24. Residual mercury from the chlor-alkali process was discharged in the plant’s
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`wastewater and also in its leftover “brine sludge” (byproducts mixed with brine) that were
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`pumped to an on-site earthen lagoon.
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`25. Up to 20 tons per day of brine sludge, along with wastewater treatment sludge, were
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`pumped to the lagoon.
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`26. Releases from the lagoon to South Branch Creek occurred during the GAF Plant’s
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`operation.
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`27. Process wastewaters from the GAF Plant and stormwaters discharged into an on-site
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`ditch system, which ultimately discharged to South Branch Creek.
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`28. From approximately 1957 to approximately 1980, hydrogen gas, a byproduct of the
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`chlor-alkali manufacturing process, was piped from the GAF Plant to a purification, transfill, and
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`repackaging plant operated by Union Carbide Corporation on a 2.1-acre portion of the Site
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`leased from Old GAF (and later from Linden Chlorine Products, Inc.).
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`RELATIONSHIP OF DEFENDANTS TO THE SITE
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`29. In or around December 1983, a group led by Samuel J. Heyman gained control of
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`Old GAF’s Board of Directors through a stockholder vote. Thereafter, Mr. Heyman became the
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`Chairman of the Board of Old GAF.
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`30. On or around July 1, 1986, Old GAF transferred (1) its specialty chemicals business
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`and certain related assets and liabilities to GAF Chemicals Corporation; and (2) its building
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`materials business and certain related assets and liabilities to GAF Building Materials
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`Corporation. Both companies operated as a wholly-owned subsidiaries of Old GAF. In the
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`transfer agreement, Old GAF expressly retained its liabilities under CERCLA.
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`31. In or around August 1987, at a meeting of Old GAF’s Board of Directors, Mr.
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`Heyman reported that he was forming a management-led proposal to purchase Old GAF.
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`32. On or around September 2, 1987, Mr. Heyman incorporated Newco Holdings, Inc.
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`(“Holdings”) and its subsidiary, Newco Acquisition Corp (“Acquisition”). On or around
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`September 23, 1987, Mr. Heyman incorporated another wholly-owned subsidiary of Holdings, G
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`Industries Corporation. G Industries Corporation was a holding subsidiary for five additional
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`subsidiaries that Mr. Heyman also incorporated (Dorset Inc., Edgecliff Inc., Clover Inc., Perth
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`Inc., and Merick Inc.). On or around August 5, 1988, Mr. Heyman incorporated G-I as a direct,
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`wholly-owned subsidiary of Holdings.
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`33. Each of the corporations in Paragraph 32 above was incorporated specifically for the
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`purpose of effecting the leveraged buyout of Old GAF.
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`34. At some point between September 1987 and March 29, 1989, Holdings distributed
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`the stock of Acquisition through its subsidiaries so that Acquisition became a direct subsidiary of
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`Dorset Inc., Edgecliff Inc., Clover Inc., Perth Inc., and Merick Inc.
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`35. On or about October 19, 1988, to realize the leveraged buyout, Holdings and
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`Acquisition entered into an “Agreement and Plan of Merger” with Old GAF, agreeing to merge
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`Acquisition with and into Old GAF, with Old GAF as the surviving company.
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`36. On or about March 29, 1989, Holdings, Acquisition, and Old GAF effectuated the
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`leveraged buyout described in Paragraph 35 above. Old GAF thus became an indirect subsidiary
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`of Holdings and a direct subsidiary of the five subsidiaries of G Industries Corporation.
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`37. On or about April 10, 1989, Old GAF entered into a “Plan of Complete Liquidation”
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`that transferred most of its assets and related liabilities to its five direct parent companies.
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`38. Under the Plan of Complete Liquidation, Dorset Inc. acquired Old GAF’s assets and
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`assumed its liabilities relating to “its acetylenic chemicals, surfactants, specialty chemicals,
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`organometalics, mineral products…(collectively, the ‘Chemicals Businesses’),” along with all
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`“liabilities arising out of (A) the production of Amiben; (B) Project Aware environmental clean-
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`up costs; and (C) environmental claims arising out of plants currently operating in the Chemicals
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`Businesses.” Dorset Inc. acquired nearly 88% of the fair market value of Old GAF’s assets.
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`39. The assets and liabilities listed in Paragraph 38 above include the assets and
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`liabilities of both the LCP Site and the adjacent parcel of land on which Old GAF owned and
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`operated a multi-acre chemical facility.
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`40. Under the Plan of Complete Liquidation, Edgecliff Inc. acquired Old GAF’s assets
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`and assumed its liabilities relating to “its commercial and residential roofing materials business,”
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`along with all liabilities “related to the manufacture, sale or use of asbestos or asbestos-
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`containing material” and “all liabilities arising out of (A) shingle claims for discontinued
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`products, (B) plant shutdowns, and (C) environmental claims from plants no longer operating
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`and from oil waste pollution.” Edgecliff Inc. acquired nearly 10.85% of the fair market value of
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`Old GAF’s assets.
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`41. Alternatively, the assets and liabilities listed in Paragraph 40 above include the
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`assets and liabilities of the LCP Site.
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`42. On or about April 10, 1989, Old GAF filed a certificate of dissolution with the
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`Delaware Secretary of State.
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`43. On or about April 11, 1989, Holdings changed its name to GAF Corporation
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`(hereinafter “New GAF”). That same day, GAF Chemicals Corporation was merged into Dorset
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`Inc., which was then renamed GAF Chemicals Corporation (“GAF Chemicals”). On or about
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`April 5, 1989, Edgecliff Inc. changed its name to GAF Building Materials Corporation.
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`44. A common identity of stockholders, officers, and directors, including Mr. Heyman
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`and his management team, existed between Old GAF and New GAF.
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`45. Certain owners of equity in Old GAF, including Mr. Heyman and his management
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`team, exchanged a share of their equity in Old GAF (or consideration received for that equity)
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`for equity in New GAF.
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`46. The business operations of GAF before and after the leveraged buyout were
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`essentially the same. Old GAF and New GAF had the same primary location, produced goods
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`through their subsidiaries in the same industries (chemicals and building materials) at the same
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`plants, had the same telephone number, and employed many of the same personnel.
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`47. On or about May 8, 1991, GAF Chemicals entered into a reorganization agreement
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`that created International Specialty Products Inc. (“ISP”) and its subsidiary ISP 9 Corp. (shortly
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`thereafter renamed IES).
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`48. On or about May 8, 1991, IES entered into an “Assumption of Liabilities and
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`Continuing Obligations” agreement “in favor of” GAF Chemicals and New GAF.
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`49. Under this agreement, IES assumed from GAF Chemicals “[a]ll liabilities and
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`obligations relating to the manufacture and sale of specialty chemicals at Linden, NJ, known and
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`unknown, contingent or otherwise, including liabilities for the remediation of the Linden
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`site . . . .”
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`50. In late 1996 or early 1997, New GAF and GAF Chemicals “spun off” ISP and IES,
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`leaving New GAF without an ownership stake in ISP or its subsidiaries.
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`51. On or about October 31, 2000, various New GAF entities engaged in a corporate
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`restructuring involving several statutory mergers: New GAF merged into its direct subsidiary, G-
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`I Holdings Inc., which in turn merged into its direct subsidiary, G Industries, which then merged
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`into its direct subsidiary, GAF Fiberglass (formerly known as GAF Chemicals). GAF Fiberglass
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`Corporation then changed its name to GAF. On or about November 13, 2000, GAF merged into
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`its direct subsidiary GAF Building Materials Corporation and changed its name to G-I.
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`52. As a result of these statutory mergers, Defendant G-I became the corporate
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`successor to New GAF and, in turn, corporate successor to Old GAF.
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`53. As the corporate successor to New GAF, which was the corporate successor to Old
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`GAF, G-I is the successor-in-interest to Old GAF’s liability under CERCLA notwithstanding any
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`assumption of liabilities under the Plan of Complete Liquidation and/or IES’s assumption of
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`liabilities under the “Assumption of Liabilities and Continuing Obligations” agreement.
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`54. By assuming the liabilities described in Paragraph 49 above, which included the
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`Plan of Complete Liquidation’s liabilities assumed by Dorset Inc. and described in Paragraph 38
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`above, IES expressly assumed the liabilities of Old GAF.
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`55. Alternatively, as the successor to GAF Building Materials Corporation (formerly
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`named Edgecliff Inc.), which assumed the Plan of Complete Liquidation’s liabilities described in
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`Paragraph 40 above, G-I expressly assumed the liabilities of Old GAF.
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`COURSE OF CONDUCT
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`56. In January 1995, EPA conducted a pre-remedial investigation at the Site. Analyses
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`of soil samples and of surface water and sediment samples indicated the presence of mercury in
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`the soil and documented the release of mercury into South Branch Creek.
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`57. On several occasions beginning in 1998, IES indicated that it was a successor to Old
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`GAF with respect to the LCP Site.
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`58. By letter dated May 29, 1998, counsel for IES responded to a Request for
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`Information sent by EPA to New GAF pursuant to Section 104(e) of CERCLA, 42 U.S.C.
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`§ 9604(e), by referring to IES “as the successor to GAF Corporation with respect to the LCP
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`Site.”
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`59. In July 1998, EPA placed the Site on the National Priorities List, 40 C.F.R. § 300.5,
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`the list of sites considered by EPA to be national priorities for long-term evaluation and response
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`among the known releases or threatened releases of hazardous substances, pollutants, or
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`contaminants.
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`60. On or about September 30, 1998, EPA sent several potentially responsible parties
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`(“PRPs”), including IES, a General Notice Letter and Notice of Negotiations for the remedial
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`investigation and feasibility study (“RI/FS”). EPA advised the PRPs of their potential liability
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`for cleanup of the Site under CERCLA and requested a good faith offer from them to finance
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`and/or perform the RI/FS.
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`61. By letter dated November 12, 1998, IES responded to EPA with a good faith offer
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`to perform the RI/FS. This letter referred to GAF Corporation as IES’s “predecessor.”
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`62. In May 1999, IES and EPA entered into an Administrative Order on Consent
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`(“AOC”) requiring IES to perform RI/FS work at the Site.
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`63. IES completed an RI Report on July 15, 2013 that was later revised in October
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`2013.
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`64. IES completed an FS Report on August 15, 2013.
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`65.
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` The RI/FS confirmed the presence of mercury and other hazardous substances
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`(including arsenic, lead, polychlorinated biphenyls, volatile organic compounds (“VOCs”), and
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`semi-VOCs) in surface soils and groundwater, as well as in surface waters, sediments, and low
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`marsh soils associated with South Branch Creek and the Northern Off-Site Ditch.
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`66. The RI/FS also indicated that stormwater runoff from the Site caused the migration
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`of contaminants (including mercury) into South Branch Creek and the Northern Off-Site Ditch.
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`67. In February 2014, EPA issued a Record of Decision (“ROD”) describing the
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`selected remedy for the Site.
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`DEFENDANTS’ LIABILITY FOR RESPONSE COSTS
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`68. Each Defendant is a “person” within the meaning of Section 101(21) of CERCLA,
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`42 U.S.C. § 9601(21).
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`69. The LCP Site is a “facility” within the meaning of Section 101(9) of CERCLA, 42
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`U.S.C. § 9601(9), which defines a “facility” in pertinent part as “any site or area where a
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`hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be
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`located . . . .”
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`70. Old GAF was an “owner” and/or “operator” of the LCP Site at the time of
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`“disposal” of a hazardous substance at the LCP Site, within the meaning of Sections 101(20),
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`101(29), and 107(a)(2) of CERCLA, 42 U.S.C. §§ 9601(20), 9601(29), and 9607(a)(2).
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`71. IES is a successor-in-interest to Old GAF with respect to the LCP Site.
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`72. G-I is a successor-in-interest to Old GAF with respect to the LCP Site.
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`73. There have been “releases,” within the meaning of Section 101(22) of CERCLA,
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`42 U.S.C. § 9601(22), and threatened releases, of “hazardous substances,” within the meaning of
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`Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), into the environment at or from the LCP
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`Site, including mercury, arsenic, lead, polychlorinated biphenyls, VOCs, and semi-VOCs.
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`74. As a result of the releases and threatened releases of hazardous substances at or
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`from the Site, EPA has incurred and will continue to incur response costs, within the meaning of
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`Sections 101(25) and 107 of CERCLA, 42 U.S.C. §§ 9601(25) and 9607, to respond to the
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`releases and threatened releases of hazardous substances at or from the LCP Site. As of
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`September 20, 2021, EPA has incurred at least $5,499,803 in response costs at the LCP Site.
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`75. IES is jointly and severally liable under CERCLA Sections 107(a) and 113(g)(2), 42
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`U.S.C. §§ 9607(a) and 9613(g)(2), for EPA’s unrecovered past response costs incurred and all
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`further response costs EPA may incur in connection with the Site.
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`76.
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` G-I is jointly and severally liable under CERCLA Sections 107(a) and 113(g)(2),
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`42 U.S.C. §§ 9607(a) and 9613(g)(2), for EPA’s unrecovered past response costs incurred and all
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`further response costs EPA may incur in connection with the Site.
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`IES’S VIOLATION OF THE MAY 20, 2015 EPA ORDER
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`77. On or about September 25, 2014, following EPA’s issuance of the ROD, EPA
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`notified IES and Praxair, Inc., a PRP that is not a subject of this Complaint, that EPA considered
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`them to be PRPs and requested a good faith offer from each to fully finance and/or perform
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`remedial design and remedial action (“RD/RA”) work at the Site to implement the selected
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`remedy.
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`78. By letter dated December 23, 2014, IES denied responsibility for RD/RA work,
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`arguing that it was not a successor to Old GAF’s liability at the Site.
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`79. Following Praxair’s and IES’s refusals to provide good faith offers to perform
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`RD/RA work at the Site, the Director of the Superfund and Emergency Management Division,
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`formerly known as the Emergency and Remedial Response Division, EPA Region 2, determined
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`that there was or may have been an imminent and substantial endangerment to the public health
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`or welfare or the environment because of the actual and/or threatened releases of hazardous
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`substances at or from the LCP Site.
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`80. Thereafter, on May 20, 2015, EPA issued an order to Praxair and IES under Section
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`106(a) of CERCLA, 42 U.S.C. § 9606(a) (the “Order,” attached as Exhibit 1), directing the
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`parties to commit to financing and performing the RD work for the entire Site in accordance with
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`the Order.
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`81. Under Paragraph 43 of the Order, any failure to “unequivocally commit to perform
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`or finance the Work as provided by [the] Order” is deemed a violation of the Order, and the
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`refusing party is deemed to have failed or refused to comply with its terms.
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`82. Paragraph 92 of the Order further provides that failure to comply with any provision
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`of the Order may subject the noncomplying party to civil penalties per violation per day (42
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`U.S.C. § 9606(b)(1)), and punitive damages in an amount at least equal to, and not more than
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`three times, the amount of costs incurred by the United States as a result of such failure to
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`comply with the Order (42 U.S.C. § 9607(c)(3)).
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`83. On July 14, 2015, IES notified EPA that it would not to comply with the Order and
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`that it was asserting “sufficient cause defenses” under Sections 106(b) and 107(c)(3) of
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`CERCLA, 42 U.S.C. §§ 9606(b) and 9607(c)(3).
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`84. Because IES is a liable party at the LCP Site under CERCLA, IES lacked sufficient
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`cause to refuse to comply with the Order.
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`85. IES’s failure to “unequivocally commit to perform or finance the Work as provided
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`by [the] Order”, and its failure to comply with the Order, is a violation of the Order subjecting
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`IES to civil penalties and punitive damages.
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`86. As a consequence of IES’s violation of the Order, EPA has incurred and will
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`continue to incur response costs, within the meaning of Sections 101(25) and 107 of CERCLA,
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`42 U.S.C. §§ 9601(25) and 9607, to respond to the releases and threatened releases of hazardous
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`substances at or from the LCP Site. As of September 21, 2021, EPA has incurred at least
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`$5,499,803 in response costs at the LCP Site.
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`FIRST CLAIM FOR RELIEF
`CERCLA §§ 107(a)(2) and 113(g)(2): RECOVERY OF RESPONSE COSTS
`(Against all Defendants)
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`87. Paragraphs 1 to 86 are realleged and incorporated herein by reference.
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`88. The Site is a “facility” within the meaning of Section 101(9) of CERCLA, 42 U.S.C.
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`§ 9601(9), which defines a “facility” in pertinent part as “any site or area where a hazardous
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`substance has been deposited, stored, disposed of, or placed, or otherwise come to be
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`located . . . .”
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`89. Old GAF was “owner” and/or “operator” of the Site at the time of “disposal” of a
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`hazardous substance, within the meanings of Sections 101(20), 101(29), and 107(a)(2) of
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`CERCLA, 42 U.S.C. §§ 9601(20), 9601(29), and 9607(a)(2).
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`90. Under the Plan of Complete Liquidation, Defendant IES is a successor-in-interest to
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`Old GAF with respect to the Site.
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`91. Alternatively, under the Plan of Complete Liquidation, Defendant G-I is a
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`successor-in-interest to Old GAF with respect to the Site.
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`92. As the corporate successor to New GAF, which was the corporate successor to Old
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`GAF, Defendant G-I is a successor-in-interest to Old GAF with respect to the Site.
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`93. There have been “releases,” within the meaning of Section 101(22) of CERCLA,
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`42 U.S.C. § 9601(22), and threatened releases, of “hazardous substances,” within the meaning of
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`Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), into the environment at or from the Site.
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`94. The United States has incurred costs of response, within the meaning of
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`Sections 101(25) and 107 of CERCLA, 42 U.S.C. §§ 9601(25) and 9607, to respond to the
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`releases and threatened releases of hazardous substances.
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`95. The costs of the response actions taken and to be taken by the United States in
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`connection with the Site are not inconsistent with the National Oil and Hazardous Substances
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`Pollution Contingency Plan (“NCP”), promulgated pursuant to Section 105 of CERCLA, 42
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`U.S.C. § 9605, and codified at 40 C.F.R. Part 300.
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`96. Defendant IES is jointly and severally liable under Section 107(a)(2) of CERCLA,
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`42 U.S.C. § 9607(a)(2), as persons who at the time of disposal of hazardous substances owned
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`and/or operated a facility, as defined in Section 101(9) of CERCLA, 42 U.S.C. § 9601(9), at
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`which such hazardous substances were disposed of.
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`97. Defendant G-I is liable under Section 107(a)(2) of CERCLA, 42 U.S.C.
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`§ 9607(a)(2), as a person who at the time of disposal of hazardous substances owned and/or
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`operated a facility, as defined in Section 101(9) of CERCLA, 42 U.S.C. § 9601(9), at which such
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`hazardous substances were disposed of.
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`98. Pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), the United
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`States is entitled to a declaratory judgment that Defendants are jointly and severally liable to the
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`United States under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for future response costs
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`to be incurred by the United States with respect to the Site and not inconsistent with the NCP.
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`SECOND CLAIM FOR RELIEF
`CERCLA § 106(b)(1): CIVIL PENALTIES FOR FAILURE WITHOUT SUFFICIENT
`CAUSE TO COMPLY WITH THE ORDER
`(Against Defendant IES)
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`99. Paragraphs 1 to 86 are realleged and incorporated herein by reference.
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`100. On May 20, 2015, EPA issued the Order pursuant