`
`
`
`Kegan A. Brown
`Taylor R. West (pro hac vice to be filed)
`Youlan Xiu (pro hac vice to be filed)
`LATHAM & WATKINS LLP
`1271 Avenue of the Americas
`New York, NY 10020
`Telephone: (212) 906-1200
`Facsimile: (212) 751-4864
`Email: kegan.brown@lw.com
`Email: taylor.west@lw.com
`Email: youlan.xiu@lw.com
`
`Attorneys for Plaintiff Paddock Enterprises, LLC
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`
`
`PADDOCK ENTERPRISES, LLC,
`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`
`
`v.
`
`
`
`Plaintiff,
`
`Defendant.
`
`Civ. Action No. 5:22-cv- 1558
`
`
`
`Civil Action
`
`COMPLAINT
`
`Plaintiff Paddock Enterprises, LLC, successor by merger to Owens-Illinois, Inc.
`
`(“Paddock”), by and through its attorneys, hereby brings this Complaint against Defendant
`
`United States of America (“United States”) and states as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This action seeks to hold the United States responsible for environmental
`
`contamination on its property that the United States has known about, but failed to remediate, for
`
`decades. As a consequence of the United States’ failure to address the contamination on its
`
`property years earlier, Paddock has incurred response costs under the Comprehensive
`
`Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C § 9601 et
`
`
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`seq. Paddock now seeks to recover those past response costs and any future response costs
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`incurred from the United States.
`
`2.
`
`In 1984 and 1985, the United States knowingly purchased approximately 30 acres
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`of contaminated property known as the Jaite Paper Mill (“Jaite Mill”). Jaite Mill is a former
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`paper mill and corrugated box plant, adjacent to the Cuyahoga River and Brandywine Creek, and
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`located within the Cuyahoga Valley National Park (“CVNP”) in northeastern Ohio.
`
`3.
`
`By acquiring Jaite Mill in its environmentally contaminated condition, the United
`
`States reaped a significant financial benefit because the contamination reduced the value of Jaite
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`Mill at a time when the United States was trying to acquire land for the CVNP with limited
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`appropriations funding from Congress.
`
`4.
`
`With the intent of acquiring Jaite Mill as inexpensively as possible, the United
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`States took the unusual step of urging the Ohio Environmental Protection Agency (“Ohio EPA”)
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`to forbear from requiring a previous Jaite Mill owner and operator, Tecumseh Corrugated Box
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`Company (now known as TCBC II, Inc.) (“TCBC”), to address known, longstanding
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`environmental contamination caused by TCBC’s operations.
`
`5.
`
`Upon information and belief, the United States did not want TCBC to address the
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`contamination at Jaite Mill because if TCBC actually did so, Jaite Mill likely would have
`
`increased in value and cost the United States more to purchase it for the CVNP.
`
`6.
`
`Despite having urged Ohio EPA not to require TCBC to address the known
`
`contamination at Jaite Mill, and despite the passage of CERCLA in 1980 that imposes liability
`
`on current owners and operators for contamination on their property, the United States did not
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`immediately begin investigating and remediating the contamination when it purchased Jaite Mill
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`in 1984 and 1985. Nor did the United States take any action to require TCBC to investigate and
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`remediate the contamination.
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`7.
`
`Instead, the United States made Jaite Mill – a known contaminated property –
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`accessible and open to the public as part of the CVNP.
`
`8.
`
`It was not until 2004 – nineteen (19) years after acquiring Jaite Mill – that the
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`United States even started to investigate contamination at Jaite Mill in earnest. It then took the
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`United States another sixteen (16) years (i.e., until 2020) to complete its investigation of that
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`contamination. Ultimately, the United States took thirty-five (35) years after purchasing Jaite
`
`Mill to delineate contamination that the United States knew existed prior to acquiring the
`
`property.
`
`9.
`
`Not surprisingly, given the United States’ multi-decade delay, the state of
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`contamination in soils, groundwater, surface water, and sediments at and adjacent to Jaite Mill
`
`had worsened. As a consequence, the cost to address the contamination today is likely greater
`
`than what it would have been in 1985 (or even before 1985, if the United States had let Ohio
`
`EPA require TCBC to investigate and remediate the contamination).
`
`10.
`
`The United States currently estimates that it will cost approximately $45 million
`
`to remediate Jaite Mill to a pristine, unimpaired condition that the United States incorrectly
`
`asserts CERCLA requires.
`
`11.
`
`In 2018, the United States requested that Paddock, which formerly owned and
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`operated Jaite Mill through a predecessor from 1951 until 1967, perform a time-critical removal
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`action under CERCLA to stabilize a portion of the Jaite Mill property that abuts the Cuyahoga
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`River. In connection with the United States’ request, Paddock incurred necessary CERCLA
`
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`
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`response costs at Jaite Mill consistent with the National Oil and Hazardous Substances Pollution
`
`Contingency Plan (“NCP”).
`
`12.
`
`As the current owner and operator of Jaite Mill, the United States is liable for
`
`Paddock’s past response costs incurred at Jaite Mill, and any future response costs Paddock may
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`incur at Jaite Mill, including with respect to the United States’ selected $45 million remedy to
`
`address the contamination.
`
`13.
`
`Through this action, Paddock seeks (i) a declaration of the United States’ liability
`
`for Jaite Mill contamination under both CERCLA and the Declaratory Judgments Act, 28 U.S.C.
`
`§ 2201 et seq., (ii) to recover Paddock’s past necessary response costs incurred at Jaite Mill
`
`under CERCLA, and (iii) to obtain a declaratory judgment that the United States is liable for
`
`Paddock’s future necessary response costs, if any, incurred at Jaite Mill under both CERCLA
`
`and the Declaratory Judgments Act.
`
`PARTIES
`
`14.
`
`Paddock is a Delaware limited liability company with its headquarters in
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`Perrysburg, Ohio.
`
`15.
`
`Paddock is a “person” within the meaning of Section 101(21) of CERCLA, 42
`
`U.S.C. § 9601(21).
`
`16.
`
`The United States is a “person” within the meaning of Section 101(21) of
`
`CERCLA, 42 U.S.C. § 9601(21).
`
`JURISDICTION AND VENUE
`
`17.
`
`This action arises under Section 107 of CERCLA, 42 U.S.C. § 9607, and the
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`Declaratory Judgments Act, 28 U.S.C. § 2201.
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`18.
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`This Court has subject matter jurisdiction over the claims in this action pursuant
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`to 28 U.S.C. § 1331 because Paddock’s claims arise under federal law and district courts have
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`exclusive original jurisdiction over CERCLA claims, 42 U.S.C. § 9613(b).
`
`19.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(1) and 42 U.S.C. §
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`9613(b) because the events giving rise to Paddock’s claims occurred in this District. In addition,
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`the Jaite Mill at which Paddock incurred necessary response costs is located entirely within this
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`District.
`
`20.
`
`In accordance with 42 U.S.C. 9613(l), Paddock has provided a copy of this
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`Complaint to the Attorney General of the United States and the Administrator of the United
`
`States Environmental Protection Agency (“USEPA”).
`
`STATEMENT OF FACTS
`
`Congress Created the Cuyahoga Valley National Park for Recreational Space Knowing
`the Cuyahoga River and Nearby Valley Lands Already Were Contaminated
`
`Jaite Mill is located within the CVNP, an area Congress envisioned would
`
`21.
`
`provide recreational space to citizens living in and visiting the Cuyahoga Valley region of the
`
`country.
`
`22.
`
`The United States understood that Cuyahoga Valley lands acquired for the CVNP
`
`might have environmental contamination, in no small part due to the enduring contamination of
`
`the Cuyahoga River and the Cuyahoga Valley’s location between the cities of Cleveland and
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`Akron.
`
`23.
`
`On December 27, 1974, Congress passed legislation that established the
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`Cuyahoga Valley National Recreation Area, which was later renamed the Cuyahoga Valley
`
`National Park on October 11, 2000. See 16 U.S.C. § 460ff (the “CVNP Act”).
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`24.
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`CVNP spans nearly 33,000 acres in the Cuyahoga Valley, which runs along the
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`banks of the Cuyahoga River between Cleveland and Akron.
`
`25.
`
`Long before CVNP was designated as federal recreational land, the State of Ohio
`
`had undertaken efforts to preserve recreational space for citizens living in and visiting the greater
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`Cleveland and Akron areas.
`
`26.
`
`In the early twentieth century, the State of Ohio established state metroparks in
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`the Cuyahoga Valley, providing open recreation areas that could be used for picnics, camping,
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`sports, and walking.
`
`27.
`
`In 1929, local Ohio businessman F.A. Seiberling donated privately owned land to
`
`the State of Ohio to increase the amount of land that could be preserved for recreational
`
`purposes.
`
`28.
`
`In 1966, the Federal Bureau of Recreation and the National Park Service, both
`
`agencies of the United States, conducted a Recreation Feasibility Study on the Cuyahoga Valley
`
`to consider whether it should be eligible for federal preservation. The agencies reported they had
`
`never seen such a polluted waterway as the Cuyahoga River.
`
`29.
`
`The 1966 Recreation Feasibility Study concluded that the Cuyahoga Valley was
`
`not worthy of federal preservation because (i) the contaminated Cuyahoga River would prevent
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`water-related recreational activities, and (ii) the Cuyahoga Valley did not possess any
`
`outstanding natural values.
`
`30.
`
`By the mid-1960s, the Cuyahoga River had become infamous for its pollution,
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`having caught on fire more than a dozen times dating from the 1860s.
`
`31.
`
`In June 1969, parts of the Cuyahoga River caught on fire and burned for three (3)
`
`days straight. Following the media attention on the infamous river fire, the United States
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`identified six (6) industrial companies in Cleveland that were responsible for the discharge of
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`hazardous substances into the Cuyahoga River. Neither Paddock nor its predecessor were
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`identified as one of these six (6) companies.
`
`32.
`
`In 1970, John F. Seiberling (the grandson of F.A. Seiberling), was elected to the
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`U.S. House of Representatives for Ohio’s 14th congressional district. John F. Seiberling, like his
`
`grandfather, sought to preserve additional recreational space in the Cuyahoga Valley. In his
`
`view, federal preservation of a national recreation area in the Cuyahoga Valley was urgently
`
`needed because of rising land prices in the Cuyahoga Valley and imminent encroachment from
`
`developers.
`
`33.
`
`In 1971, newly-elected U.S. Congressman Seiberling proposed a bill to create the
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`“Ohio Canal and Cuyahoga Valley National Historical Park and Recreation Area” that would
`
`place the Cuyahoga Valley under the management of the National Park Service as a national
`
`park. This bill never received a committee hearing in either U.S. chamber. Seiberling, however,
`
`persisted in his effort to have a Cuyahoga Valley recreation space federally recognized.
`
`34.
`
`In March and June of 1974, the U.S. House of Representatives held two (2)
`
`hearings to gauge public support for a national recreation area in the Cuyahoga Valley.
`
`35.
`
`Supporters of a national recreation area believed that only the federal government
`
`had the financial resources and ability to win the race against developers who were increasingly
`
`purchasing land in the Cuyahoga Valley.
`
`36.
`
`Opponents of a national recreation area, in contrast, saw the existing, known
`
`environmental contamination as a practical impediment to using Cuyahoga Valley land for
`
`recreation. In 1971, local residents sent a letter to the United States explaining that “[t]here is
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`NO discussion about the enormous costs of removing the pollution which really negates the use
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`of the area, in safety, for the public.” (Emphasis in italics added). This same point was made
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`again during an April 8, 1974 Senate hearing, where citizens opposed to a national recreation
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`area in Cuyahoga Valley explained that any proposed camping, picnicking, boating, fishing,
`
`hunting, and hiking were impossible because “[i]t is beyond our belief that anyone can say the
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`area of the Cuyahoga River valley by virtue of pollution is conducive to these activities.”
`
`37.
`
`The U.S. House and Senate Reports from December 1974, issued just weeks
`
`before the CVNP Act was passed, also acknowledge the presence of contamination in the
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`Cuyahoga River.
`
`38.
`
`Federal agencies, including the Office of Management and Budget and the
`
`Department of Interior (“Interior”), were staunchly opposed to the creation of the CVNP. The
`
`Office of Management and Budget took the position that the Cuyahoga Valley possessed no
`
`qualities that would qualify it for inclusion in the National Park System, and Interior did not see
`
`a need for federal involvement where the State of Ohio had already begun preserving land in the
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`region.
`
`39.
`
`Interior also opposed creation of the CVNP because creating a national park in the
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`Cuyahoga Valley would set a precedent for an urban recreation area near every large city in the
`
`country.
`
`40.
`
`Nevertheless, Congress passed the CVNP Act to create the Cuyahoga Valley
`
`National Recreation Area.
`
`41.
`
`Despite objections from the Office of Management and Budget, Interior, and his
`
`advisors, President Ford signed the CVNP Act into law on December 27, 1974.
`
`42.
`
`Even after the CVNP was created, Interior reiterated its prior position that the
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`CVNP lacked any intrinsic value beyond its recreational opportunity.
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`43.
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`In a February 20, 1975 hearing before the U.S. House Subcommittee of the House
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`Committee on Appropriations, then-Secretary of Interior Rogers Morton stated: “let’s face it, the
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`establishment of Cuyahoga Valley in Ohio is a set-aside that primarily is not for its primitive or
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`natural values; it is in fact that it is open space and in that open space you can develop a
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`tremendous amount of recreation opportunity.” (Emphasis added).
`
`The Troubled CVNP Land Acquisition Plan and Rising Property Values in the Cuyahoga Valley
`Required the United States to Acquire Land for CVNP As Cheaply As Possible
`
`44.
`
`The United States saw environmental contamination of the land it sought to
`
`acquire for the CVNP as a benefit because contaminated land was cheaper to acquire than
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`uncontaminated land, and a poorly-managed federal land acquisition process for the CVNP
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`caused delays while land prices in the Cuyahoga Valley skyrocketed.
`
`45.
`
`Upon passage of the CVNP Act, the Secretary of Interior was authorized to
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`“acquire lands, improvements, waters, or interests” within the proposed boundaries of the CVNP.
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`16 U.S.C. § 460ff-1(a). Daily management of the CVNP, in turn, would be the responsibility of
`
`the National Park Service, an agency within Interior.
`
`46.
`
`The CVNP Act provided that the land necessary to create the CVNP would have
`
`to be acquired by donation, purchased with donated or appropriated funds, exchanged, or
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`transferred within six (6) years from the date of enactment of the legislation (i.e., by 1980). 16
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`U.S.C. § 460ff-2(b).
`
`47.
`
`The funds appropriated by Congress were not designated to purchase specific
`
`properties. Instead, the Secretary of Interior was required to establish an acquisition plan that
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`indicated the order in which property for the CVNP would be acquired with the funds
`
`appropriated.
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`48.
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`Due, in part, to the economic recession and political instability surrounding the
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`conflict in Vietnam in the mid-1970s, federal spending on national parks was stymied. For
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`example, President Nixon’s 1974 budget proposal provided no increase in planning,
`
`development or operation of National Park Service-managed recreation programs, which
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`Congressman Seiberling criticized as shortsighted because he anticipated CVNP land prices
`
`would continue to escalate.
`
`49.
`
`In 1975, Secretary of Interior Rogers Morton, who had opposed the creation of
`
`the CVNP, requested only $1 million for the CVNP land acquisition program for fiscal year
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`1976. Certain members of Congress, however, petitioned to increase the CVNP appropriations
`
`to $5 million.
`
`50.
`
`The difficulty of acquiring land for the CVNP due to a lack of Congressional
`
`appropriations was compounded by the United States’ lack of a formal land acquisition plan.
`
`51.
`
`By statute, the Secretary of Interior was required to submit a land acquisition plan
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`to Congress by December 27, 1975 that would provide the public with a comprehensive
`
`explanation of the intended CVNP land acquisition program. 16 U.S.C. § 460ff-2(a).
`
`52.
`
`Nevertheless, an adequate land acquisition plan was never submitted by Interior.
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`Instead, on December 11, 1975, Interior submitted an acquisition schedule to Congress, which
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`Congress rejected because it did not qualify as a land acquisition plan.
`
`53.
`
`In the absence of a land acquisition plan, then-CVNP Park Superintendent Bill
`
`Birdsell made decisions about which properties would be acquired by the United States in fee
`
`simple and when those property acquisitions would occur.
`
`54.
`
`By mid-1976, land prices in the Cuyahoga Valley were escalating by ten to fifteen
`
`percent (10%-15%) a year. As a result, if the CVNP was to be realized within the 6-year time
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`period mandated by the CVNP Act, the amount of Congressional appropriations had to be
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`increased significantly.
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`55.
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`By the end of President Carter’s Administration in 1980, the United States had
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`already spent approximately $59 million on roughly 11,000 acres for the CVNP, with thousands
`
`of acres remaining to be acquired.
`
`56.
`
`In 1981, however, President Reagan’s Administration placed a moratorium on all
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`national park land purchases.
`
`57.
`
`In addition, the new Secretary of Interior James G. Watt suggested de-authorizing
`
`national parks like CVNP and reprogramming its funds, an approach that resulted in Watt being
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`featured in an editorial cartoon in the Akron Beacon Journal.
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`58.
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` Secretary Watt resigned in September 1983. His replacement, William Clark,
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`reversed the previous moratorium and requested $5 million for the CVNP for fiscal year 1984.
`
`59.
`
`As explained below, Jaite Mill was among the properties finally acquired post-
`
`moratorium in 1984 and 1985.
`
`60.
`
`By 1985, the United States had spent over $85 million to acquire approximately
`
`15,000 acres for the CVNP.
`
`Before the United States Acquired Jaite Mill, Congress Passed CERCLA
`
`61.
`
`Prior to acquiring Jaite Mill in 1984 and 1985, the United States already was
`
`aware that, to the extent Jaite Mill was contaminated, the United States would be legally
`
`obligated to investigate and remediate that contamination if it purchased Jaite Mill.
`
`62.
`
`63.
`
`On December 11, 1980, Congress passed CERCLA.
`
`Under Section 107 of CERCLA, there are four (4) categories of liable parties: (i)
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`current owners or operators of the relevant CERCLA facility, (ii) former owners or operators at
`
`the time a hazardous substance was disposed of at the relevant CERCLA facility; (iii) persons
`
`who arranged for the treatment or disposal of hazardous substances at the relevant CERCLA
`
`facility; and (iv) persons who transported hazardous substances to the relevant CERCLA facility
`
`for treatment or disposal. 42 U.S.C. § 9607(a).
`
`64.
`
`Response actions under CERCLA are classified as either “removal” actions or a
`
`“remedial” action.
`
`65.
`
`A removal action is a response that is undertaken in the short-term to monitor,
`
`assess, or abate the release of hazardous substances to the environment or the threat of release of
`
`hazardous substances to the environment. 42 U.S.C. § 9601(23). Importantly, a removal action
`
`is not a permanent remedy for environmental contamination.
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`12
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`66.
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`In contrast, a remedial action is an action “consistent with [a] permanent remedy
`
`taken instead of or in addition to removal actions in the event of a release or threatened release of
`
`a hazardous substance into the environment, to prevent or minimize the release of hazardous
`
`substances so that they do not migrate to cause substantial danger to present or future public
`
`health or welfare or the environment.” 42 U.S.C. § 9601(24).
`
`67.
`
`To recover costs incurred to perform a removal action or a remedial action under
`
`CERCLA, the removal action or remedial action must be undertaken in a manner that is
`
`consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”).
`
`The NCP provides detailed requirements for when and how a removal action or a remedial action
`
`may be performed under CERCLA.
`
`The United States Acquired the Contaminated Krejci Dump for the CVNP and then
`Investigated and Remediated Krejci Dump Contamination
`
`By the time CERCLA was passed in 1980, the CVNP had been in existence for
`
`68.
`
`six (6) years. Beginning in 1981, the United States invited inspectors from Ohio EPA to evaluate
`
`potential environmental contamination at a nearby property known as the Krejci Dump. The
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`Krejci Dump is a forty-seven (47) acre property that had been used as a salvage yard and
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`disposal facility from 1948 until 1980. In 1985, the United States acquired Krejci Dump and
`
`made it part of the CVNP.
`
`69.
`
`In mid-1986, the United States received new information regarding environmental
`
`contamination at the Krejci Dump, and promptly invited Ohio EPA to conduct a full site
`
`investigation. The Krejci Dump was closed to visitors in May 1986 to ensure visitor safety and
`
`prevent resource degradation.
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`13
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`70.
`
`By June 1987, the United States had confirmed the presence of hazardous
`
`substances at Krejci Dump, and began onsite action to further investigate and remediate the
`
`contamination.
`
`71.
`
`In 1989, as a result of the substantial costs incurred by the United States at the
`
`Krejci Dump, Interior instructed the National Park Service to purchase no more lands for the
`
`CVNP with environmental contamination. Then Secretary of Interior Manuel Lujan
`
`subsequently imposed a requirement that the National Park Service would have to conduct
`
`inspections for hazardous substances before any tract of land could be purchased.
`
`The United States Intended to Acquire Jaite Mill
`and Preserve It as a Historically Significant Location
`
`Since inception of the CVNP, Jaite Mill was one of the properties the United
`
`72.
`
`States intended to acquire as part of the national park.
`
`73.
`
`As early as 1974, the United States publicly announced its intention to obtain the
`
`“box plant” (i.e., Jaite Mill) as part of the CVNP.
`
`74.
`
`On March 19, 1979, the Heritage Conservation and Recreation Service, an agency
`
`within Interior, nominated Jaite Mill and the surrounding unincorporated town of Jaite for The
`
`National Register of Historic Places. Jaite Mill was listed in the National Register in 1979.
`
`75.
`
`The National Register of Historic Places was established by Congress in the
`
`National Historic Preservation Act of 1966. This statute was enacted to carry out the “policy of
`
`the Federal Government to… administer federally owned, administered, or controlled property in
`
`a spirit of stewardship for the inspiration and benefit of present and future generations [and]
`
`contribute to the preservation of nonfederally owned historic property[.]” 54 U.S.C. §
`
`300101(3)-(4).
`
`
`
`14
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`76.
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`The Secretary of Interior maintains the National Register of Historic Places and
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`may record “districts, sites, buildings, structures, and objects significant in American history,
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`architecture, archeology, engineering, and culture.” Id. § 302101.
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`77.
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`As set out in Interior’s National Register of Historic Places Inventory Nomination
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`Form, Jaite Mill and the associated Jaite company town had a special character and was one of
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`the most important business enterprises in that section of Summit County in Ohio.
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`78.
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`The Jaite Mill was also recorded in the Historic American Engineering Record, a
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`project undertaken by the National Park Service, the Library of Congress, and the American
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`Society of Civil Engineers to “create a permanent documentary record of the nation’s
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`engineering and industrial legacy.”
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`The United States Knowingly Acquired Jaite Mill with Environmental Contamination
`to Keep the Purchase Price of Jaite Mill Reduced
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`79.
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`Prior to purchase, the United States was aware of contamination at Jaite Mill
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`because of years-long environmental violations issued by the Ohio EPA against Jaite Mill’s then-
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`owner and operator, TCBC.
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`80.
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`Acting out of its own self-interest to keep the potential purchase price for Jaite
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`Mill deflated (and thus within Congressional appropriations), the United States interfered with
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`demands by Ohio EPA to have TCBC timely address Jaite Mill contamination.
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`81.
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`Prior to TCBC’s acquisition of Jaite Mill in 1967, two (2) other companies had
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`owned and operated the plant: Jaite Paper Company from 1905 until 1951, and National
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`Container Corporation from 1951 until 1967.
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`82.
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`Paddock is the successor to National Container Corporation, but not Jaite Paper
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`Company.
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`83.
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`TCBC had a well-documented record of its operations causing environmental
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`contamination at Jaite Mill.
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`84.
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`As early as February 1975, TCBC and the City of Akron were engaged in a
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`dispute regarding TCBC’s wastewater effluent discharge into the Cuyahoga River.
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`85.
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`In July 1975, TCBC recognized the need for the company to preserve cash
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`because of the possible shutdown of Jaite Mill by the United States, coupled with its knowledge
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`of the environmental contamination TCBC’s operations had caused at Jaite Mill.
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`86.
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`In 1976, the Ohio EPA issued a notice of violation to TCBC for noncompliance
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`with its wastewater discharge permit. This violation resulted from TCBC’s failure to maintain
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`its wastewater treatment lagoons at Jaite Mill, which resulted in the discharge of contaminated
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`wastewater directly into Brandywine Creek and the Cuyahoga River.
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`87.
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`Despite receiving this notice, on July 25, 1979, TCBC decided not to conduct a
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`complete study of its wastewater effluent from Jaite Mill because of the cost of paying a
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`consultant to perform the study.
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`88.
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`Also in 1976, TCBC became aware of its noncompliance with new air emission
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`limits for sulfur dioxide that were imposed under the federal Clean Air Act. See 42 U.S.C. §
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`7401 et. seq. TCBC had several conversations with USEPA in November 1976 regarding the
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`possibility of TCBC avoiding the necessity of complying with the Clean Air Act.
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`89.
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`On January 24, 1977, TCBC attempted to negotiate a protracted schedule with
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`USEPA to bring Jaite Mill into compliance with the sulfur dioxide air emission requirements.
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`90.
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`During those negotiations, TCBC informed USEPA that expending capital to
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`comply with the sulfur dioxide air emission requirements ultimately would have financial
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`consequences for the United States’ acquisition of Jaite Mill for the CVNP. Specifically, TCBC
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`explained that modifications necessary to achieve the sulfur dioxide air emission requirements
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`would increase the value of TCBC’s fixed equipment, which in turn would increase the cost to
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`the United States of acquiring Jaite Mill for the CVNP.
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`91.
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`Approximately one (1) year later, on January 16, 1978, the United States
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`inspected Jaite Mill.
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`92.
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`On July 13, 1979, TCBC met with CVNP Superintendent Bill Birdsell to discuss
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`Interior’s plans to acquire Jaite Mill. During this meeting, TCBC raised its air emissions
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`noncompliance with Birdsell as an ongoing issue.
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`93.
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`On December 8, 1980, USEPA ordered TCBC to pay a fine for exceedances of
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`the sulfur dioxide emissions threshold. To settle the issue, TCBC signed a consent decree and
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`paid a fine.
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`94.
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`By the end of 1980, the United States still had not purchased Jaite Mill due to the
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`Reagan Administration’s moratorium on purchasing additional lands for national parks.
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`95.
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`Jaite Mill was among many properties that fell into years-long purchase
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`negotiations between then-owners and the United States due to inconsistent federal funding and
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`the disorganization resulting from a missing land acquisition plan for the CVNP.
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`96.
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`Because CVNP Superintendent Birdsell made decisions about which properties to
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`purchase and when to purchase them for the CVNP, appraisals would be ordered years before
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`any offer to purchase would be made, causing controversy and tension between landowners and
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`Interior.
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`97.
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`On August 6, 1980, Ohio EPA conducted sampling at Jaite Mill to assess whether
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`TCBC was complying with its wastewater discharge permit. Ohio EPA informed TCBC that
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`TCBC’s improper maintenance of settling lagoons at Jaite Mill caused wastewater effluent
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`violations.
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`98.
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`99.
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`Ohio EPA directed TCBC to rectify the wastewater effluent violations.
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`On November 4, 1981, the United States confirmed to TCBC its continued
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`interest in purchasing Jaite Mill subject to the availability of Congressional appropriations.
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`100.
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`In May 1982, Ohio EPA again notified TCBC of ongoing environmental
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`violations resulting from TCBC’s wastewater discharges at Jaite Mill.
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`101. On July 20, 1982, the United States advised TCBC that it was ordering appraisals
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`for certain parcels of Jaite Mill.
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`102. On December 23, 1982, the United States filed a complaint with Ohio EPA about
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`an oil and gas well on TCBC’s property that was leaking oily, sludge-like material into a
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`tributary of the Cuyahoga River.
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`103. The United States filed the complaint with Ohio EPA because it had just acquired
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`an adjacent property for CVNP and was concerned that the poor maintenance of TCBC’s well
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`would result in a large oil spill directly onto the United States’ property and into the Cuyahoga
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`River.
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`104. On February 10, 1983, the United States accompanied the Ohio Department of
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`Natural Resources to inspect TCBC’s oil and gas well.
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`105. The inspectors confirmed that the source of the oil contamination was a leaking
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`tank on TCBC’s property, which was allowing waste oil and other substances to leach into the
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`Cuyahoga River. The Ohio Department of Natural Resources issued a verbal notice of violation
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`to TCBC and required TCBC to clean up the contamination and repair the leaking tank.
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`106. On March 2, 1983, the Ohio Department of Natural Resources conducted another
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`on-site inspection of TCBC, and issued a written notice of violation to TCBC because it found
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`that slag had been spread on top of the contamination, but TCBC had not attempted to remove
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`the contamination or repair the leaking tank.
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`107. TCBC did not satisfactorily clean up the contamination stemming from its oil and
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`gas well or fix the leaking tank until May 3, 1983.
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`108. By 1983, the United State