throbber
Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 1 of 28. PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
`
`THE UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`NORFOLK SOUTHERN RAILWAY
`COMPANY,
`
`and
`
`NORFOLK SOUTHERN CORPORATION,
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`Civil Case No. __________
`
`
`
`
`
`
`
`COMPLAINT
`
`Plaintiff, the United States of America, by authority of the Attorney General of the
`
`
`
`
`
`
`United States, acting at the request and on behalf of the Administrator of the United States
`
`Environmental Protection Agency (“EPA”), alleges as follows:
`
`INTRODUCTION
`
`1.
`
`On February 3, 2023, a train carrying hazardous materials1 derailed in East
`
`Palestine, Ohio. The derailment caused dozens of rail cars to collide into one another and fall
`
`over. Fire broke out and lasted for days. Residents of the town had to be evacuated from their
`
`homes. As a result of this incident, hazardous materials vented into the air and spilled onto the
`
`
`1 For purposes of the Introduction and General Allegations in this complaint, the term “hazardous materials”
`includes hazardous substances, pollutants, contaminants, and/or oil within the meaning and coverage of the statutes
`at issue.
`
`

`

`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 2 of 28. PageID #: 2
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`ground. These substances contaminated local waterways and flowed miles downstream. EPA,
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`along with other agencies, responded within hours of the incident to ensure the safety of public
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`health and the environment. Plaintiff United States of America asks this Court to hold
`
`Defendants accountable for unlawfully polluting the nation’s waterways and to ensure it pays the
`
`full cost of the environmental cleanup.
`
`
`
`2.
`
`This is a civil action brought by the United States against Norfolk Southern
`
`Railway Company (“NS Railway”) and Norfolk Southern Corporation (“NS Corporation”)
`
`(collectively “Norfolk Southern” or “Defendants”), seeking injunctive relief, cost recovery, and
`
`civil penalties, as specified below in the Claims for Relief. This action is brought under:
`
`a. Section 309 of the Clean Water Act (“CWA”), 33 U.S.C. § 1319, for Defendants’
`
`discharges of pollutants into waters of the United States in violation of Section
`
`301 of the CWA, 33 U.S.C. § 1311;
`
`b. Section 311 of the CWA, 33 U.S.C. § 1321, for the discharge of oil or hazardous
`
`substances into waters of the United States in violation of 33 U.S.C. § 1321(b)(3);
`
`and
`
`c. Section 107 of the Comprehensive Environmental Response, Compensation, and
`
`Liability Act (“CERCLA”), 42 U.S.C. § 9607, for the recovery of response costs.
`
`JURISDICTION, VENUE, AND AUTHORITY
`
`This Court has jurisdiction over the subject matter of this action pursuant to 33
`
`3.
`
`U.S.C. § 1319(b), 33 U.S.C. § 1321(b)(7)(E), 42 U.S.C. § 9613(b), and 28 U.S.C. §§ 1331, 1345,
`
`and 1355.
`
`

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`4.
`
`Venue is proper in this district pursuant to 33 U.S.C. § 1319(b), 33 U.S.C. §
`
`1321(b)(7)(E), and 42 U.S.C. § 9613(b) because Defendants do business in this district and the
`
`events that gave rise to the claims occurred in this district.
`
`5.
`
`This action is properly filed in the Eastern Division of this district pursuant to
`
`Local Rule 3.8(a) because the events that gave rise to the claims occurred in Columbiana
`
`County.
`
`THE PARTIES
`
`6.
`
`Plaintiff, the United States of America, is acting at the request and on behalf of
`
`the Administrator of EPA.
`
`7.
`
`8.
`
`NS Railway is a Virginia corporation with its headquarters in Atlanta, Georgia.
`
`NS Railway is a wholly-owned subsidiary of NS Corporation, which holds all the
`
`stock of NS Railway.
`
`9.
`
`NS Corporation is a Virginia corporation with its headquarters in Atlanta,
`
`Georgia.
`
`10.
`
`Each Defendant is a “person” within the meaning of the CWA and CERCLA. 33
`
`U.S.C. § 1362(5); 33 U.S.C. § 1321(a)(7); and 42 U.S.C. § 9601(21).
`
`GENERAL ALLEGATIONS
`
`A. Norfolk Southern Corporation Controls the Operations of Norfolk Southern Railway
`Company
`
`11.
`
`NS Corporation plays a controlling role in decisions regarding the operations of
`
`NS Railway, which operates a freight railroad over 35,000 miles of track in 22 states,
`
`transporting all manner of materials and goods, including coal, intermodal containers,
`
`agricultural products, chemicals, metals, and automotive products.
`
`12.
`
`NS Railway is a common carrier that accepts hazardous substances for transport.
`
`
`
`3
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`

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`13.
`
`Defendants operated Norfolk Southern Train 32N and its railcars at all times
`
`relevant to this complaint.
`
`14.
`
`Defendants owned the locomotive and some of the railcars on Norfolk Southern
`
`Train 32N at all times relevant to this complaint.
`
`15.
`
`Both Defendants operate out of the same corporate headquarters, and the
`
`President, Vice President, Chief Financial Officer, and Treasurer for NS Railway hold the same
`
`or very similar positions with NS Corporation.
`
`16.
`
`The United States Surface Transportation Board requires railroad companies
`
`operating within the United States to submit an annual report (“Annual Report”).
`
`17.
`
`The 2021 Annual Report states that all of NS Corporation’s subsidiaries were
`
`under the common control of NS Corporation, and that rail operations are coordinated at the
`
`holding company level by NS Corporation’s Chief Operating Officer.
`
`18.
`
`The 2021 Annual Report identifies NS Railway as the principal subsidiary of NS
`
`Corporation.
`
`19.
`
`Clairborne L. Moore, the Vice President and Controller for NS Corporation,
`
`signed the 2021 Annual Report.
`
`20.
`
`In affidavits filed in federal ligation:
`
`a. Jason Zampi, a Vice President and Controller for NS Corporation, stated that the
`
`annual reports submitted to the Surface Transportation Board are prepared by
`
`personnel of NS Corporation with knowledge of and a business duty to prepare
`
`the information contained in the annual reports.
`
`
`
`4
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`b. Roger Petersen, NS Corporation’s General Counsel – Litigation, stated that NS
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`Corporation “directs, controls, oversees, and handles litigation involving it and its
`
`wholly-owned subsidiaries, including [NS Railway].”
`
`See Coker v. Norfolk Southern Corporation, et al., Civil Action No. 2:18-cv-1364 (S.D. Ala
`
`2018) (Dk. No. 34-1, 34-2).
`
`21.
`
`Approximately eighty percent of the compensation for NS Corporation’s
`
`executives are based on performance metrics.
`
`22.
`
`These performance metrics focus on performance measures such as operating
`
`ratio and operating income for its subsidiaries. Operating ratio looks at operating expenses as a
`
`percentage of revenue. Operating income looks at operating revenue less operating expenses.
`
`23.
`
`These financial metrics were selected to motivate and reward NS Corporation’s
`
`executives for increasing revenue, improving operating efficiency, and reducing expenses of its
`
`railroad subsidiaries.
`
`24.
`
`NS Corporation’s executives achieve these metrics by controlling subsidiaries’
`
`operations, which includes the operations of NS Railway.
`
`25.
`
`Over the past four years, annual reports show a stark contrast between the
`
`increases in operating income and the drop in railroad operating costs.
`
`26.
`
`The drop in operating costs includes reductions in spending to repair, service, and
`
`maintain locomotives and freight cars, perform train inspections, and pay engine crews and train
`
`crews.
`
`27.
`
`In 2019, prior to retiring, Mike Wheeler, the Executive Vice President and Chief
`
`Operating Officer for NS Corporation, issued Operating Rules governing the operations of all of
`
`NS Corporation’s railroad subsidiaries.
`
`
`
`5
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`

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`28.
`
`These Operating Rules cover almost every aspect of NS Railway’s operations,
`
`including train inspections, use of defective equipment detectors, train movement, braking, and
`
`positive train control.
`
`29.
`
`NS Corporation also issues Railroad Special Hazmat Instructions that govern the
`
`transportation and handling of hazardous materials by NS Railway’s employees.
`
`30.
`
`NS Corporation requires each NS Railway employee who inspects or transports
`
`hazardous materials by rail to have a copy of and comply with the Railroad Special Hazmat
`
`Instructions.
`
`31.
`
`NS Corporation offers training to each employee who directly transports
`
`hazardous materials.
`
`32.
`
`The legal department for NS Corporation often files public comments and other
`
`pleadings relating to railway operations with the United States Department of Transportation and
`
`Federal Railroad Administration on behalf of NS Railway.
`
`33.
`
`Often affidavits filed in support of these submissions come from NS
`
`Corporation’s employees.
`
`34.
`
`For example, Thomas W. Schnautz submitted a Verified Statement concerning
`
`train crew size safety requirements in December 2022. NS Corporation’s website identifies Mr.
`
`Schnautz as the “Vice President – Advance Train Control,” and an April 2019 press release
`
`states that Mr. Schnautz reports to NS Corporation’s Chief Operating Officer.2
`
`35.
`
`In April 2021, the legal department of NS Corporation, on behalf of NS Railway,
`
`submitted to the Federal Railroad Administration supplemental data and a PowerPoint
`
`presentation discussing the findings of a track inspection pilot program.
`
`
`2 http://www.nscorp.com/content/nscorp/en/news/norfolk-southern-appoints-schnautz-and-boyle-as-vice-presidents-
`.html. Last visited on March 29, 2023.
`
`
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`6
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`36.
`
`The submission was on NS Corporation letterhead and NS Corporation was the
`
`only corporate name on the PowerPoint presentation.
`
`B. The Norfolk Southern Train Derailment
`
`37.
`
`On February 3, 2023, Norfolk Southern Train 32N (“freight train”) derailed in
`
`East Palestine, Ohio.
`
`38.
`
`Thirty-eight rail cars derailed. At least eleven of those rail cars were carrying
`
`hazardous materials.
`
`39.
`
`The hazardous materials contained in these cars included vinyl chloride, ethylene
`
`glycol monobutyl ether, ethylhexyl acrylate, butyl acrylate, isobutylene, and benzene residue.
`
`40.
`
`Exposure to these hazardous materials at sufficiently high levels has been
`
`associated variously with an increased risk of cancer; risks to fetal development; damage to
`
`organs like the liver, kidneys, lungs, and skin; and other health conditions.
`
`41.
`
`Vinyl chloride, butyl acrylate, and benzene are “hazardous substances” within the
`
`meaning of CERCLA Section 101, 42 U.S.C. § 9601(14).
`
`42.
`
`In addition, five of the rail cars that derailed were carrying oil, another car
`
`contained fuel additives, and an additional empty car contained liquified petroleum gas residue.
`
`43.
`
`The derailment caused some of the derailed rail cars to be breached and resulted
`
`in the release of hazardous materials into the environment, including the soil and nearby
`
`waterways.
`
`
`
`
`
`44.
`
`45.
`
`The derailment also caused some of the derailed cars to catch fire.
`
`Norfolk Southern produced the below photograph showing the derailed rail cars
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`and describing their contents:
`
`
`
`7
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`
`
`46.
`
`The East Palestine Train Derailment Site (the “Site”) consists of the extent of
`
`contamination resulting from the train derailment, fire, and response activities described below.
`
`Exhibit A to the Complaint generally depicts the Site features and surrounding areas.
`
`C. The Response to the Derailment
`
`47.
`
`EPA mobilized to the Site with the EPA Superfund Technical Assessment and
`
`Response Team within hours of the February 3, 2023 derailment.
`
`48.
`
`49.
`
`evacuated.
`
`50.
`
`51.
`
`52.
`
`Other federal, state, and local agencies were also mobilized to the Site.
`
`On February 4, 2023, residents living within a one-mile radius of the Site were
`
`The fire resulting from the derailment continued to burn until February 5, 2023.
`
`Firefighting efforts required the use of firefighting materials.
`
`Combustion of the hazardous materials and railcars released hazardous materials
`
`into the environment, including air, soil, groundwater, and waterways.
`
`
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`8
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`

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`53.
`
`Hazardous materials from the Site may have also been discharged into waterways
`
`from stormwater infrastructure at the Site and a ditch south of the Site.
`
`54.
`
`On February 5, 2023, monitoring indicated rising temperatures in a tank car
`
`containing vinyl chloride.
`
`55.
`
`Norfolk Southern vented and burned the contents of five rail cars containing vinyl
`
`chloride in a flare trench on February 6, 2023, in order to prevent an explosion.
`
`56.
`
`Prior to the venting and burning, the evacuation area was increased to a one-mile
`
`by two-mile area based on plume modeling conducted by the Interagency Modeling and
`
`Atmospheric Assessment Center and the Ohio National Guard 52nd Civil Support Team.
`
`57.
`
`EPA determined that conditions at the Site posed an imminent and substantial
`
`threat to human health and the environment, and on February 21, 2023, issued a Unilateral
`
`Administrative Order under CERCLA Section 106, 42 U.S.C. § 9606.
`
`58.
`
`EPA’s Unilateral Administrative Order required NS Railway to take a number of
`
`actions, including:
`
`• develop and implement an air monitoring and sampling plan for indoor air in occupied
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`structures and around the Site;
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`• develop and implement a plan for the identification and delineation of the extent of
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`contamination in surface and subsurface soils, surface waters and sediments,
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`groundwater, and drinking water sources;
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`• develop and implement a plan for the containment and remediation of contaminated
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`surface and sub-surface soils, surface waters and sediments, and groundwater (including
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`private, municipal, and agricultural wells);
`
`
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`9
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`•
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`remove, secure, stage, consolidate, package, transport, and dispose of identified
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`hazardous substances, pollutants, and contaminants at EPA-approved disposal facilities in
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`accordance with EPA’s Off-Site Rule, 40 C.F.R. § 300.440; and
`
`•
`
`take any response action to address any release or threatened release that EPA determines
`
`may pose an imminent and substantial endangerment to the public health or the
`
`environment.
`
`59.
`
`EPA continues to conduct soil sampling, air sampling, and air monitoring at and
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`around the Site. Air sampling involves collecting an air sample over a period of time, which is
`
`then sent to a laboratory for analysis to identify and quantify specific compounds. Air monitoring
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`uses electronic devices to provide real-time readings of airborne contaminants.
`
`60.
`
`EPA provides monitoring data to the public, and continues to provide information
`
`to the community about the ongoing cleanup efforts.
`
`61.
`
`Some of those responding to the derailment observed chemical slurries and sheen
`
`along Sulphur Run and Leslie Run and began sampling and containment activities from the Site
`
`along impacted waterways to the Ohio River.
`
`62.
`
`The impacted waterways are the ditch north of the railway, which is an Unnamed
`
`Tributary to Sulphur Run (“Unnamed Tributary”), Sulphur Run, Leslie Run, Bull Creek, the
`
`North Fork of Little Beaver Creek, Little Beaver Creek, and the Ohio River.
`
`63.
`
`EPA continues to oversee work by Defendants at the Site, including oversight of
`
`the removal of contaminated materials from the Site.
`
`
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`
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`10
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`D. Releases of Hazardous Materials from the Site
`
`64.
`
`The derailment caused some of the derailed cars, including cars containing
`
`hazardous materials, to be breached and the contents of the rail cars to be released into soil at and
`
`adjacent to the Site, the Unnamed Tributary, local waterways, and other areas.
`
`65.
`
`As a result of the derailment, subsequent fire, and firefighting efforts, hazardous
`
`materials, including but not limited to vinyl chloride, naphthalene, petroleum, butyl acrylate,
`
`ethylhexyl acrylate, and ethylene glycol monobutyl ether, reached the air, soil, and/or waterways.
`
`66.
`
`Naphthalene, which is classified as a hazardous substance under the CWA, and
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`other petroleum hydrocarbons were detected in sampling in Sulphur Run and Leslie Run.
`
`67.
`
`Run-off from firefighting efforts resulted in additional contaminants and
`
`pollutants entering the soil, the Unnamed Tributary, local waterways, and other areas.
`
`68.
`
`The venting and burning of the rail cars containing vinyl chloride also caused the
`
`release of hazardous materials into the environment, including into the air, soil, groundwater, and
`
`nearby waterways.
`
`69.
`
`Ongoing sampling, analysis, and monitoring, as well as additional cleanup efforts,
`
`are likely to detect additional chemical substances that were created during the mixing and
`
`burning of substances released from the rail cars.
`
`70.
`
`The hazardous materials from the derailed cars, firefighting efforts, and hazardous
`
`materials created by the mixing and burning of the contents from the rail cars entered Sulphur
`
`Run, Leslie Run, Bull Creek, the North Fork of the Little Beaver Creek, Little Beaver Creek, and
`
`the Ohio River via discharge to the Unnamed Tributary, discharge to Sulphur Run, and/or by
`
`other means.
`
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`11
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`

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`71.
`
`The Ohio Department of Natural Resources has reported that thousands of aquatic
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`animals were killed in the five-mile span of waterway from the Site to where Bull Creek flows
`
`into the North Fork of Little Beaver Creek as a result of the release of contaminants into the
`
`water.
`
`72.
`
`The map attached as Exhibit B to this Complaint depicts the flow path from the
`
`Unnamed Tributary to the Ohio River.
`
`E. Waters of the United States
`
`73.
`
`74.
`
`The Unnamed Tributary is a tributary to Sulphur Run.
`
`The Unnamed Tributary originates at State Line Lake in Darlington, Pennsylvania
`
`and flows west into Ohio.
`
`
`
`75.
`
`Based on drainage area flow modeling, the drainage area for the Unnamed
`
`Tributary to Sulphur Run is 1.13 square miles.
`
`76.
`
`Based on drainage area flow modeling, the Unnamed Tributary is approximately
`
`13 to 16 feet wide and is approximately one foot deep upstream of its confluence with Sulphur
`
`Run.
`
`77.
`
`Photographs over a period of years show standing water in the Unnamed
`
`Tributary.
`
`78.
`
`The Unnamed Tributary typically flows year-round or has continuous flow at
`
`least seasonally.
`
`79.
`
`The Unnamed Tributary is a relatively permanent, standing or continuously
`
`flowing body of water.
`
`80.
`
`The Unnamed Tributary empties into Sulphur Run.
`
`
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`12
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`81.
`
`The Unnamed Tributary has a significant nexus to the North Fork Little Beaver
`
`Creek, Little Beaver Creek, and the Ohio River.
`
`82.
`
`Sulphur Run flows through residential and commercial areas of East Palestine,
`
`Ohio.
`
`83.
`
`Based on drainage area flow modeling, Sulphur Run between the Norfolk
`
`Southern railroad crossing and Leslie Run ranges between 18 to 25 feet wide and is
`
`approximately 1.6 feet deep just upstream of its confluence with Leslie Run.
`
`84.
`
`Sulphur Run typically flows year-round or has continuous flow at least
`
`seasonally.
`
`85.
`
`Sulphur Run is a relatively permanent, standing or continuously flowing body of
`
`water.
`
`86.
`
`Satellite imagery and other photographs over a period of years show Sulphur Run
`
`has a bed and bank and standing or flowing water.
`
`87.
`
`88.
`
`89.
`
`Portions of Sulphur Run have been enclosed.
`
`Sulphur Run flows into Leslie Run.
`
`Sulphur Run has a significant nexus to the North Fork Little Beaver Creek, Little
`
`Beaver Creek, and the Ohio River.
`
`90.
`
`Based on drainage area flow modeling, Leslie Run has a drainage area of
`
`approximately 14.6 square miles, and the width of Leslie Run ranges from 31 to 48 feet, and it is
`
`approximately 2.4 feet deep.
`
`91.
`
`92.
`
`
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`Portions of Leslie Run have been channelized and straightened over the years.
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`Portions of Leslie Run contain a floodplain.
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`13
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`93.
`
`Satellite imagery and other photographs over a period of years show a bed and
`
`bank and standing or flowing water in Leslie Run.
`
`94.
`
`United States Geological Survey maps from as far back as 1937 depict Leslie
`
`Run.
`
`water.
`
`95.
`
`96.
`
`97.
`
`Aerial photographs from as far back as 1952 depict Leslie Run.
`
`Leslie Run typically flows year-round or has continuous flow at least seasonally.
`
`Leslie Run is a relatively permanent, standing or continuously flowing body of
`
`98.
`
`Leslie Run flows for approximately three miles from its confluence with Sulphur
`
`Run until it flows into Bull Creek.
`
`99.
`
`Leslie Run has a significant nexus to the North Fork Little Beaver Creek, Little
`
`Beaver Creek, and the Ohio River.
`
`100. The relevant reach of Bull Creek is .85 mile from Leslie Run until it flows to the
`
`North Fork Little Beaver Creek.
`
`101. Photographs and images over a period of years show flowing water in Bull Creek.
`
`102. Bull Creek typically flows year-round or has continuous flow at least seasonally.
`
`103. Bull Creek is a relatively permanent, standing or continuously flowing body of
`
`water.
`
`104. Bull Creek empties into the North Fork Little Beaver Creek.
`
`105. Bull Creek has a significant nexus to the North Fork Little Beaver Creek, Little
`
`Beaver Creek, and the Ohio River.
`
`106. North Fork Little Beaver Creek has been designated as a navigable water by the
`
`Pittsburgh District Army Corps of Engineers.
`
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`14
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`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 15 of 28. PageID #: 15
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`107. North Fork Little Beaver Creek was recognized by the State of Ohio as an
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`impaired water for 2022 under 33 U.S.C. § 1313(d).
`
`108. North Fork Little Beaver Creek typically flows year-round or has continuous flow
`
`at least seasonally.
`
`109. North Fork Little Beaver Creek is a relatively permanent, standing or
`
`continuously flowing body of water.
`
`110. North Fork Little Beaver Creek flows into the Little Beaver Creek.
`
`111. North Fork Little Beaver Creek has a significant nexus to the Ohio River and
`
`Little Beaver Creek.
`
`112. The North Fork Little Beaver Creek is a traditional navigable waterway.
`
`113. Little Beaver Creek has been designated as a navigable water by the Pittsburgh
`
`District Army Corps of Engineers.
`
`114. Aerial photographs depict surface water in Little Beaver Creek.
`
`115. Little Beaver Creek typically flows year-round or has continuous flow at least
`
`seasonally.
`
`116. Little Beaver Creek is a relatively permanent, standing or continuously flowing
`
`body of water.
`
`117. Little Beaver Creek supports 63 species of fish, 49 mammal species, 140 types of
`
`birds, and 46 species of reptiles and amphibians.
`
`118. Little Beaver Creek supports the largest population of the endangered Hellbender
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`salamanders in the State of Ohio.
`
`119. Little Beaver Creek is used for kayaking, paddling, fishing, and other forms of
`
`recreation.
`
`
`
`15
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`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 16 of 28. PageID #: 16
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`120. Little Beaver Creek flows into the Ohio River.
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`121. Based on drainage area flow modeling, Little Beaver Creek extends 15.7 miles
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`upstream from its confluence with the Ohio River.
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`122. Little Beaver Creek has a significant nexus to the Ohio River.
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`123. Little Beaver Creek is a traditional navigable waterway.
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`124. The Ohio River has been designated as a navigable water by the Pittsburgh
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`District Army Corps of Engineers.
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`125. The Ohio River is a navigable river used for interstate commerce.
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`126. The Ohio River is a traditional navigable waterway.
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`STATUTORY AND REGULATORY BACKGROUND
`
`A. The Clean Water Act
`
`1) Prohibition of Unpermitted Discharges of Pollutants
`
`127. The CWA is a comprehensive statute designed “to restore and maintain the
`
`chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
`
`128. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the “discharge of any
`
`pollutant” by any person except in compliance with a permit issued by EPA or an authorized
`
`state.
`
`129.
`
`“Discharge of a pollutant” means “any addition of any pollutant to navigable
`
`waters from any point source.” 33 U.S.C. § 1362(12).
`
`130.
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`“Pollutant” includes solid waste, chemical wastes, wrecked or discarded
`
`equipment, and industrial waste discharged into water. 33 U.S.C. § 1362(6).
`
`131.
`
`“Navigable waters” means the “waters of the United States.” 33 U.S.C. § 1362(7).
`
`
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`16
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`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 17 of 28. PageID #: 17
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`132. The term “waters of the United States” is defined by regulation. From the time of
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`the discharge until March 20, 2023, the definition at 40 C.F.R. § 230.3(s) (1986) applied.
`
`133. Under 40 C.F.R. § 230.3(s) (1986), “waters of the United States” included:
`
`1. All waters which are currently used, or were used in the past, or may be
`susceptible to use in interstate or foreign commerce, including all waters
`which are subject to the ebb and flow of the tide;
`
`2. All interstate waters including interstate wetlands;
`…
`5. Tributaries of waters identified in paragraphs (1) through (4) of this
`section.
`
`134. On March 20, 2023, a new regulatory definition of waters of the United
`
`States went into effect (the “2023 rule”).
`
`135. Under the 2023 rule, “waters of the United States” includes:
`
`(a)(1) traditional navigable waters, the territorial seas, and interstate
`waters;
`…
`(a)(3) tributaries to traditional navigable waters, the territorial seas,
`interstate waters;
`…
`(a)(5) intrastate lakes and ponds, streams, or wetlands not identified in
`paragraphs (a)(1) through (4) that meet either the relatively permanent
`standard or the significant nexus standard.
`
`88 Fed. Reg. 3004, 3019 (Jan. 18, 2023) (to be codified at 40 C.F.R. § 120.2).
`
`
`136. The discharges relevant to this complaint flowed into waters of the United
`
`States under either the 1986 rule and the 2023 rule.
`
`137. The 2023 rule excludes ditches (including roadside ditches) excavated
`
`wholly in and draining only dry land and that do not carry a relatively permanent flow of
`
`water. 88 Fed. Reg. 3004, 3067 (Jan. 18, 2023) (to be codified at 40 C.F.R. § 120.2).
`
`
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`17
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`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 18 of 28. PageID #: 18
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`138.
`
`“Point source” means “any discernible, confined and discrete conveyance,
`
`including but not limited to any pipe, ditch, channel, tunnel, conduit . . . [or] rolling stock,” from
`
`which pollutants are or may be discharged. 33 U.S.C. § 1362(14).
`
`139. The definition of “person” includes a corporation. 33 U.S.C. § 1362(5).
`
`140. Section 309(b) of the CWA, 33 U.S.C. § 1319(b), authorizes the Administrator of
`
`EPA to commence a civil action for appropriate relief, including a permanent or temporary
`
`injunction, when any person violates Section 301 of the CWA, 33 U.S.C. § 1311.
`
`141. Any person who violates 33 U.S.C. § 1311 is liable for civil penalties not to
`
`exceed $64,618 per day for each violation that occurred after November 2, 2015. 33 U.S.C. §
`
`1319(d); 40 C.F.R. § 19.4.
`
`2) Oil and Hazardous Substances Liability
`
`142. Section 311 of the Clean Water Act prohibits the discharge of oil or hazardous
`
`substances into or upon the navigable waters of the United States in such quantities as may be
`
`harmful as determined by the President. 33 U.S.C. § 1321(b)(3).
`
`143. For oil, the quantities determined to be harmful are those that (a) violate
`
`applicable water quality standards; or (b) cause a film or sheen upon or discoloration of the
`
`surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited
`
`beneath the surface of the water or upon adjoining shorelines. 40 C.F.R. § 110.3.
`
`144. For hazardous substances, the quantities determined to be harmful are those that
`
`are in “reportable quantities.” 40 C.F.R. § 117.1(a).
`
`145. For the purposes of Section 311, “oil” means “oil of any kind or in any form,
`
`including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes
`
`other than dredged spoil.” 33 U.S.C. § 1321(a)(1).
`
`
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`18
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`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 19 of 28. PageID #: 19
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`146. For the purposes of Section 311, “hazardous substance” means any substance
`
`designated pursuant to 33 U.S.C. § 1321(b)(2) and listed in EPA’s regulations at 40 C.F.R. Part
`
`116. 33 U.S.C. § 1321(a)(14).
`
`147. For the purposes of Section 311, “discharge” includes, but is not limited to “any
`
`spilling, leaking, pumping, pouring, emitting, emptying, or dumping” except as authorized by a
`
`permit. 33 U.S.C. § 1321(a)(2).
`
`148. For the purposes of Section 311, “owner or operator” includes “any person
`
`owning or operating such onshore facility.” 33 U.S.C. § 1321(a)(6).
`
`149. For the purposes of Section 311, “person” includes a corporation. 33 U.S.C. §
`
`1321(a)(7).
`
`150. For the purposes of Section 311, “onshore facility” means “any facility
`
`(including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or
`
`under, any land within the United States other than submerged land.” 33 U.S.C. § 1321(a)(10).
`
`151. For the purposes of Section 311, “barrel” means 42 United States gallons at 60
`
`degrees Fahrenheit. 33 U.S.C. § 1321(a)(13).
`
`152. Any person who is the owner, operator, or person in charge of any onshore
`
`facility from which oil or a hazardous substance is discharged in violation of 33 U.S.C. §
`
`1321(b)(3) is subject to a civil penalty of $55,808 per day of violation or an amount up to $2,232
`
`“per barrel of oil or unit of reportable quantity of hazardous substances discharged.” 33 U.S.C. §
`
`1321(b)(7); 40 C.F.R. § 19.4.
`
`B. The Comprehensive Environmental Response, Compensation, and Liability Act
`
`153. CERCLA governs the response to the release of hazardous substances and ensures
`
`that responsible parties pay for the costs of cleanup. 42 U.S.C. § 9601 et seq.
`
`
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`19
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`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 20 of 28. PageID #: 20
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`154. Under CERCLA Section 107, 42 U.S.C. § 9607(a), the owner or operator of a
`
`facility or 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, from which there is a release
`
`or threatened release, is liable for all costs of removal or remedial action incurred by the United
`
`States Government not inconsistent with the National Contingency Plan.
`
`155. The amounts recoverable under CERCLA Section 107 include interest on the
`
`recoverable costs. 42 U.S.C. § 9607(a).
`
`156.
`
`In any action for recovery of costs referred to in Section 107, “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.” 42 U.S.C. §
`
`9613(g)(2).
`
`157.
`
`“Facility” includes any structure, installation, equipment, ditch, storage container,
`
`rolling stock, or any site or area where a hazardous substance has been deposited, stored,
`
`disposed of, or placed, or otherwise come to be located. 42 U.S.C. § 9601(9).
`
`158. An “onshore facility” means any facility (including, but not limited to, rolling
`
`stock) of any kind located in, on, or under, any land or nonnavigable waters within the United
`
`States. 42 U.S.C. § 9601(18).
`
`159.
`
`“Hazardous substance” includes substances designated under the Clean Water
`
`Act, Clean Air Act, or the Solid Waste Disposal Act, and includes mixtures of hazardous
`
`substances and petroleum products. 42 U.S.C. § 9601(14).
`
`160.
`
`“Pollutant or contaminant” includes, but is not limited to any element, substance,
`
`compound, or mixture, which after release into the environment and upon exposure, ingestion,
`
`inhalation, or assimilation into any organism, either directly from the environment or indirectly
`
`
`
`20
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`

`

`Case: 4:23-cv-00675-JRA Doc #: 1 Filed: 03/30/23 21 of 28. Page

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