Case 1:20-cv-00556 Document 1 Filed 12/29/20 Page 1 of 10 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`BEAUMONT DIVISION
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`Civil Action No.
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`COMPLAINT FOR NATURAL RESOURCE DAMAGES
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`The United States of America (“United States”), by the authority of the Attorney General
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`Plaintiffs,
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`UNITED STATES OF AMERICA and the
`STATE OF TEXAS,
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`
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`v.
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`E. I. DU PONT DE NEMOURS AND CO.
`
`and
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`THE CHEMOURS CO. FC, LLC,
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`
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`Defendants.
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`
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`of the United States, by and through the undersigned attorneys, acting at the request of the
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`National Oceanic and Atmospheric Administration (“NOAA”), and of the Fish and Wildlife
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`Service of the United States Department of the Interior (“FWS”), and the State of Texas, on
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`behalf of the Texas Commission on Environmental Quality (“TCEQ”), the Texas General Land
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`Office (“TGLO”), and the Texas Parks and Wildlife Department (“TPWD”) (collectively, the
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`“State”), file this Complaint and allege as follows:
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`STATEMENT OF THE CASE
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`1.
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`This is a civil action against E. I. du Pont de Nemours and Co. (“DuPont”) and
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`The Chemours Co. FC, LLC (“Chemours”), pursuant to Section 107(a)(4)(C) of the
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`Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`BEAUMONT DIVISION
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`Civil Action No.
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`COMPLAINT FOR NATURAL RESOURCE DAMAGES
`
`The United States of America (“United States”), by the authority of the Attorney General
`
`Plaintiffs,
`
`
`
`
`
`UNITED STATES OF AMERICA and the
`STATE OF TEXAS,
`
`
`
`v.
`
`E. I. DU PONT DE NEMOURS AND CO.
`
`and
`
`THE CHEMOURS CO. FC, LLC,
`
`
`
`Defendants.
`
`
`
`
`
`of the United States, by and through the undersigned attorneys, acting at the request of the
`
`National Oceanic and Atmospheric Administration (“NOAA”), and of the Fish and Wildlife
`
`Service of the United States Department of the Interior (“FWS”), and the State of Texas, on
`
`behalf of the Texas Commission on Environmental Quality (“TCEQ”), the Texas General Land
`
`Office (“TGLO”), and the Texas Parks and Wildlife Department (“TPWD”) (collectively, the
`
`“State”), file this Complaint and allege as follows:
`
`STATEMENT OF THE CASE
`
`1.
`
`This is a civil action against E. I. du Pont de Nemours and Co. (“DuPont”) and
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`The Chemours Co. FC, LLC (“Chemours”), pursuant to Section 107(a)(4)(C) of the
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`Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42
`
`
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`
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`Case 1:20-cv-00556 Document 1 Filed 12/29/20 Page 2 of 10 PageID #: 2
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`U.S.C. § 9607(a)(4)(C), seeking recovery of damages for injury to, loss of, or destruction of
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`natural resources, including recovery of the costs of assessing such injury and damages and the
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`future costs of overseeing and monitoring restoration actions, as a result of releases of hazardous
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`substances into the environment at or from the DuPont Beaumont Works Industrial Park
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`Complex including the West Marsh, located at 5470 N. Twin City Highway, Nederland, Texas
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`77627. The State of Texas also seeks relief under the Texas Water Code (“TWC”) §§ 26.261-
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`267.
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`JURISDICTION AND VENUE
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`2.
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`This Court has personal jurisdiction over the Parties and has jurisdiction over the
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`subject matter of this action under Sections 107 and 113(b) of CERCLA, 42 U.S.C. §§ 9607 and
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`9613(b), and 28 U.S.C. §§ 1331, 1345 and 2201.
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`3.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 and Section 113(b)
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`of CERCLA, 42 U.S.C. § 9613(b) because the release or threatened release of hazardous
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`substances that gives rise to the action occurred in this District.
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`PARTIES
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`4.
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`5.
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`DuPont is a Delaware corporation registered to do business in the State of Texas.
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`DuPont formerly owned and operated the DuPont Beaumont Works Industrial
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`Park Complex including the West Marsh (the “Site”), located at 5470 N. Twin City Highway,
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`Nederland, Texas, from 1954 through 2015.
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`6.
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`On July 1, 2015, DuPont created a new company, Chemours, for its Performance
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`Chemicals Division. Chemours is a Delaware corporation registered to do business in the State
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`of Texas.
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`2
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`7.
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`In 2015, Chemours became the owner of the DuPont Beaumont Works Industrial
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`Park Complex, located at 5470 N. Twin City Highway, Nederland, Texas, and the Site.
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`8.
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`9.
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`Collectively, DuPont and Chemours are the “Defendants.”
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`Pursuant to Federal statutes, including Section 107(f)(2)(A) of CERCLA, 42
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`U.S.C. § 9607(f)(2)(A), TCEQ, TGLO, TPWD, NOAA, and FWS are trustees for natural
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`resources injured as a result of releases of hazardous substances caused by Defendants at the
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`Site.
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`CERCLA STATUTORY BACKGROUND
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`10.
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`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in pertinent part that:
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`(1) the owner or operator of . . . a facility, (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, . . . (4) . . . from which there is a release,
`or a threatened release which causes the incurrence of response costs, of a
`hazardous substance, shall be liable for – . . . (C) damages for injury to,
`destruction of, or loss of natural resources, including the reasonable costs of
`assessing such injury, destruction or loss resulting from such a release; . . . .
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`The term “natural resources” as defined in CERCLA means “land, fish, wildlife,
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`11.
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`biota, air, water, groundwater, drinking water supplies, and other such resources belonging to,
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`managed by, held in trust by, appertaining to, or otherwise controlled by the United States, . . .
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`and any State or local government. . . .” 42 U.S.C. § 9601(16).
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`GENERAL ALLEGATIONS
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`12.
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`The Site (also known as the “West Marsh”) encompasses approximately 30 acres
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`in the northwestern corner of the DuPont Beaumont Works Industrial Park Complex, bounded by
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`the Neches River on the northeast, closed solid waste management units to the southeast, tank
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`storage to the southwest, and a former canal on the northwest.
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`3
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`13.
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`DuPont began operations at the Site in 1954, which included the production of
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`plastics and other proprietary synthetic products commercially sold by DuPont. Chemours, a
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`new company formed by DuPont became the owner of the Site in 2015.
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`14.
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`During the time that DuPont owned and operated the Site, hazardous substances
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`including arsenic, chromium, lead, zinc, copper, mercury, and nickel were disposed of at the
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`Site.
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`15.
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`Chemours is the current owner of the Site where hazardous substances have come
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`to be located.
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`16.
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` Releases of hazardous substances from the Site have resulted in injuries to,
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`destruction of, loss of, and the loss of use of natural resources and services from natural
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`resources at the Site, including estuarine emergent wetland habitat and other resources.
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`17.
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`Under Section 107 of CERCLA, 42 U.S.C. § 9607, and 43 C.F.R. Part 11, the
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`United States and the State of Texas (collectively, “Plaintiffs”), as natural resource trustees, are
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`entitled to recover damages for injury to natural resources, including (1) the cost to restore,
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`replace, or acquire the equivalent of such natural resources; (2) the compensable value of lost
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`services resulting from the injury to resources; and (3) the reasonable cost of assessing injuries to
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`natural resources and resulting damages.
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`18.
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`In 2007, DuPont entered into a Memorandum of Agreement with the federal and
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`state natural resource trustees (collectively, “the Trustees”) to perform a cooperative, restoration-
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`based assessment to address potential natural resource injuries at the Site. Chemours joined the
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`cooperative assessment when it became the Site owner in 2015.
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`19.
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` The Trustees’ assessment of these injuries to natural resources, including the
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`restoration project proposed to compensate for those losses, is identified in the “Final Damage
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`4
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`Assessment and NEPA Categorical Exclusion for DuPont Beaumont Works West Marsh,
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`Jefferson County, Texas,” dated June 6, 2016.
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`20.
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`The Trustees determined that hazardous substances released at the Site have
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`injured or potentially injured estuarine emergent wetland habitat and other resources.
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`21.
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`The primary hazardous substances at the Site include arsenic, chromium, lead,
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`zinc, copper, mercury, and nickel.
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`22.
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`The Trustees have incurred costs in assessing the injury to natural resources
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`which remain unreimbursed.
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` FIRST CLAIM FOR RELIEF
`(The United States’ and the State of Texas’s Claim for Recovery of
`Natural Resource Damages Under CERCLA)
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`Paragraphs 1 through 22 are re-alleged and incorporated herein by reference.
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`DuPont and Chemours are “persons” within the meaning of Section 101(21) of
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`23.
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`24.
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`CERCLA, 42 U.S.C. § 9601(21) and also within the meaning of Section 26.263(5) of the TWC.
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`25.
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`The Site is a “facility” within the meaning of Section 101(9) of CERCLA, 42
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`U.S.C. § 9601(9).
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`26.
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`There was a “release” or a threatened “release” within the meaning of Section
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`101(22) of CERCLA, 42 U.S.C. § 9601(22), 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 the Site.
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`27.
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`The release of hazardous substances at or to the Site caused injury to, destruction
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`of, or loss of “natural resources” within the meaning of Sections 101(16) and 107(a)(4)(C) of
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`CERCLA, 42 U.S.C. §§ 9601(16) and 9607(a)(4)(C).
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`28.
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`TCEQ, TGLO, TPWD, NOAA, and FWS are agencies that have been designated
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`as natural resource trustees pursuant to Section 107(f) of CERCLA, 42 U.S.C. § 9607(f).
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`5
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`29.
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`TCEQ, TGLO, TPWD, NOAA, and FWS have incurred costs assessing such
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`injury, destruction, or loss of natural resources.
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`30.
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`DuPont is within the class of liable persons described in Section 107(a)(2) of
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`CERCLA, 42 U.S.C. § 9607(a)(2), because it owned and operated the Site during the time
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`hazardous substances were disposed of at the Site.
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`31.
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`Chemours is within the class of liable persons described in Section 107(a)(1) of
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`CERCLA, 42 U.S.C. § 9607(a)(1), because it currently owns the Site.
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`32.
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`Pursuant to Section 107(a)(4)(C) of CERCLA, 42 U.S.C. § 9607(a)(4)(C),
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`Defendants are liable to Plaintiffs for injury to, destruction of, or loss of natural resources,
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`including the reasonable costs of assessing such injury, destruction, or loss resulting from actual
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`releases of hazardous substances at or to the Site.
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`SECOND CLAIM FOR RELIEF
`(The State of Texas’s State Law Claim TWC §§ 26.261-267)
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`Paragraphs 1 through 32 are realleged and incorporated herein by reference.
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`The Site is a “facility” within the meaning of Section 327.2 of Title 30 of the
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`33.
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`34.
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`Texas Administrative Code.
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`35.
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`Hazardous substances, within the meaning of Section 26.263(4) of the TWC, were
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` discharged at the Site.
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`36.
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`Each Defendant is a “responsible person” within the meaning of Section
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`26.263(6) of the TWC.
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`37.
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`There were “discharges or spills” within the meaning of Section 26.263(1) of the
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`TWC at or to the Site.
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`38.
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`The discharge or spill at or to the Site has caused injury to, destruction of,
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`6
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`and loss of land and aquatic resources held in trust or owned by the State of Texas, within the
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`meaning of Section 26.265(d) of the TWC.
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`39.
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`The State has incurred and is continuing to incur costs related to determining the
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`impacts of the spill on the environment and natural resources as well as for the restoration
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`of land and aquatic resources held in trust or owned by the State of Texas, within the meaning of
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`Section 26.265(d) of the TWC.
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`40.
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` Pursuant to Section 26.265(d) of the TWC, Defendants are liable to the State for
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`the reasonable costs of conducting reasonable and necessary scientific studies to determine the
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`impacts of the spill on the environment and natural resources and to determine the manner in
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`which to respond to spill impacts, including the reasonable costs incurred in restoration of land
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`and aquatic resources held in trust or owned by the State of Texas.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs pray that this Court:
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`1.
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`Enter judgment in favor of Plaintiffs and against Defendants, jointly and
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`severally, pursuant to Section 107(a)(4)(C) of CERCLA, 42 U.S.C. § 9607(a)(4)(C), and Section
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`26.265(d) of the TWC, for all damages for injury to, destruction of, and loss of natural resources
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`within the trusteeship of the United States and the State of Texas resulting from the releases of
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`hazardous substances at or to the Site, including the unreimbursed past, present, and future costs
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`of assessing such damages, the cost of restoring, replacing, and/or acquiring the equivalent of
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`those injured resources, and the past, present, and future diminution in value of those resources
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`pending restoration or replacement;
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`2.
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`Enter a judgment in favor of Plaintiffs against Defendants for liability for all costs
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`of this action, including attorneys’ fees; and
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`Case 1:20-cv-00556 Document 1 Filed 12/29/20 Page 8 of 10 PageID #: 8
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`3.
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`Award Plaintiffs such other and further relief as this Court may deem appropriate.
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`Respectfully submitted,
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`FOR THE UNITED STATES OF AMERICA:
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`Section Chief
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
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` s/ Samuel D. Blesi
`SAMUEL D. BLESI (DC Bar # 417818)
`Lead Attorney
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`
`P.O. Box 7611
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`Washington, D.C. 20044-7611
`Telephone: 202-514-1466
`Sam.Blesi@usdoj.gov
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`STEPHEN J. COX
`United States Attorney
`Eastern District of Texas
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` s/ James Gillingham
`JAMES GILLINGHAM (Tex. Bar No. 24065295)
`Assistant United States Attorney
`Eastern District of Texas
`101 N. College Avenue, Suite 700
`Tyler, Texas 75702
`Email: james.gillingham@usdoj.gov
`Telephone: 903-510-9346
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`Case 1:20-cv-00556 Document 1 Filed 12/29/20 Page 9 of 10 PageID #: 9
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`FOR THE STATE OF TEXAS:
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`KEN PAXTON
`Attorney General of Texas
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`BRENT WEBSTER
`First Assistant Attorney General
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`SHAWN COWLES
`Deputy Attorney General for Civil Litigation
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`PRISCILLA M. HUBENAK
`Chief, Environmental Protection Division
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` s/ Ekaterina DeAngelo
`EKATERINA DEANGELO
`Assistant Attorney General
`Tex. Bar No. 24087398
`
`Office of the Attorney General
`Environmental Protection Division
`P.O. Box 12548, MC-066
`Austin, Texas 78711-2548
`Tel: (512) 463-2012
`Fax: (512) 320-0911
`Ekaterina.DeAngelo@oag.texas.gov
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`COUNSEL FOR THE STATE OF TEXAS ON
`BEHALF OF THE TEXAS GENERAL LAND
`OFFICE, THE TEXAS PARK AND WILDLIFE
`DEPARTMENT, AND THE TEXAS
`COMMISSION ON ENVIRONMENTAL
`QUALITY
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`Case 1:20-cv-00556 Document 1 Filed 12/29/20 Page 10 of 10 PageID #: 10
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on this day, I caused true and correct copies of the foregoing
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`Complaint to be served by first class mail, postage prepaid, on the following:
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`Patricia McGee
`Corporate Counsel
`E. I. du Pont de Nemours and Company
`974 Centre Road, CRP 735
`P.O. Box 2915
`Wilmington, Delaware 19805
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`Todd Coomes
`Senior Counsel, Chemours Legal
`The Chemours Company
`1007 Market Street
`Wilmington, DE 19899
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`Date: 12/29/2020
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` s/ Samuel D. Blesi
`SAMUEL D. BLESI
`Attorney
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
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`P.O. Box 7611
`
`Washington, D.C. 20044-7611
`Telephone: 202-514-1466
`Fax: 202-514-8865
`E-mail: Sam.Blesi@usdoj.gov
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