Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 1 of 30 PageID #: 1
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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 1 of 30 PageID #: 1
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`UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
`
`2:20-cv-00537
`
`RITA LOVEJOY,
`
`Plaintiff,
`
`V.
`
`JACKSON RESOURCES COMPANY,
`
`Defendant
`
`Case NO.
`
`2220'CV'00537
`
`(I) RECOVERY OF RESPONSE COSTS AND
`COMPLAINT FOR:
`DECLARATORY RELIEF UNDER CERCLA § 107(a), 42 U.S.C. §§ 9607(a) AND
`9613(g);
`(2)
`“CITIZEN SUIT”
`PURSUANT To RCRA §7002(a)(1)(A),
`42 U.S.C. § 6972(a)(1)(A);
`(3)
`“CITIZEN
`SUIT”
`PURSUANT
`To
`RCRA § 7002(a)(1)(B), 42 use. § 6972(a)(1)(B), FOR ABATEMENT OF AN
`IMMINENT AND SUBSTANTIAL ENDANGERMENT TO HEALTH OR THE
`
`ENVIRONMENT; (4) JUDICIAL ABATEMENT OF A PUBLIC NUISANCE; (5)
`JUDICIAL ABATEMENT OF A PRIVATE NUISANCE; (6) NEGLIGENCE; AND
`
`(7) STRICT LIABILITY
`
`Plaintiff, Rita Lovejoy (“Lovejoy”), by and through its undersigned counsel, makes the
`
`following allegations upon knowledge as to itseif and upon information and belief as to all other
`
`matters:
`
`Nature of this Case
`
`1.
`
`Through its acts, omissions, Violations of federal and state environmental and
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`public health protection laws, and breaches of common law duties owed to Plaintiff and the public
`
`at large, Defendant, Jackson Resources Company (“Jackson Resources”) has caused the release of
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`toxic, noxious, harmful and hazardous contaminants into the environment, and such contaminants
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`have become present and threaten to become further present at, on, and under Plaintiff’s property
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`(herein “Lovejoy Property”) and in soils, groundwater, and surface waters in the immediate
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`

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`vicinity thereof.
`
`Jackson Resources is a past owner/operator of a natural gas weil and pipeline
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`transportation facility (herein, “the Jackson Facility”) residing on the Lovejoy Property located
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`atong the Upper Mud River and Palermo Road, Lincoln County, West Virginia. Such unabated
`
`contamination of environmental media not only is an invasion of Plaintiff‘s right to the customary
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`safe and comfortable use and enjoyment of her property, it also constitutes a condition that both
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`presents and may present an imminent and substantial endangerment to human health and the
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`environment, has already caused actual damage to the environment, and is a current and continuing
`
`hazard to human health and the environment and a serious public nuisance.
`
`2.
`
`Accordingly, Plaintiff brings this action to, inter alia:
`
`(a) recover its costs of
`
`responding to releases hazardous substances (17.6., “response costs”) incurred and to be incurred
`
`under Section 107(a) of the Comprehensive Environmental Response, Compensation, and
`
`Liability Act of 1980, as amended (“‘CERCLA” or “federal Superfund Act”), 42 U.S.C. § 9607(a);
`
`(b) to obtain appropriate injunctive relief pursuant to section 7002(a)(1)(A) of the Resource
`
`Conservation and Recovery Act of 1976 (“RCRA” or “federai Hazardous Waste Management
`
`Act”), 42 U.S.C. § 6972(a)(1)(A) to compel compliance with the requirements of RCRA and to
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`redress the consequences of past and on—going violations of RCRA; (c) pursuant to section
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`7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(l)(B), to secure judicial abatement of an imminent
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`and substantial endangerment to health or the environment that may be presented by the solid
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`wastes and hazardous wastes at and emanating from the Jackson Facility as a result of its past and
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`ongoing acts and omissions, with authorization for Plaintiff to conduct appropriate oversight and
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`monitoring of the defendant Jackson Resource’s compliance with this court’s orders herein; ((1) to
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`secure abatement of an on—going public nuisance, through an appropriate Judicial Public Nuisance
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`Abatement Order (in the nature of an appropriate mandatory injunction) that
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`is subject to
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`

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`appropriate oversight and monitoring, binding and compeiling Defendant Jackson Resources
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`timely and competentiy to undertake ali actions necessary to properly abate the continuing public
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`nuisance conditions and endangerinents to the public health, safety, welfare and the environment
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`caused and contributed to by the past and ongoing acts and omissions of Defendant Jackson
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`Resources, which nuisance conditions, as a direct and proximate result of Defendant’s acts and
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`omissions, have become present and threaten further to become present at, on, under, and in the
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`vicinity of the reai property owned by Plaintiff, with extremely adverse consequences to the
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`environment, including Upper Mud Fork River; (e) to recover money damages, inciuding an award
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`of punitive damages, under the laws of private nuisance, negligence,, and strict liability, for the
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`harms to Plaintiff’ 5 property and to Plaintiff‘s property rights, including loss of reasonable use and
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`enjoyment and loss of value; (1) to recover plaintiff’s reasonable litigation costs, non—exclusively
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`including plaintiff“ s attorney fees and costs, expert Witness fees and costs and court costs incurred
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`in obtaining such relief; (g) appropriate prejudgment interest; and (h) such other reiief as this Court
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`may deem necessary and appropriate, including all relief under Ruie 54(c), Federai Rules of Civil
`
`Procedure.
`
`Jurisdiction and Venue
`
`3.
`
`This Court has exclusive, original jurisdiction over the subject matter of Count 1 of
`
`this Complaint pursuant to CERCLA § 113(b), 42 U.S.C. § 9613(b), and original jurisdiction over
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`the subject matter of Counts H and 1H of this Complaint pursuant to RCRA § 7002(a), 42 U.S.C.
`
`§ 6972(a) and 28 U.S.C. § 1331. This Court has supplementai jurisdiction under 28 U.S.C. § 1367
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`over Piaintifi’s remaining causes of action because those claims are so related to Counts I, H, and
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`III that they form the same case and controversy under Article III ofthe United States Constitution.
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`

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`4.
`
`Pursuant to CERCLA § 113(b), 42 U.S.C. § 96130)), RCRA § 7002(a), 42 U.S.C.
`
`§ 6972(a) and 28 U.S.C. § l391(b)(2), venue lies in this Judicial District, since a substantial part
`
`of the acts, omissions, and events which are described herein and which give rise to Plaintiff’s
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`claims, including the releases of hazardous wastes and hazardous substances referenced herein,
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`occurred in this judicial district, causing harmful impacts and endangerments to human health and
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`the environment within this judicial district.
`
`The Parties
`
`5.
`
`Plaintiff Lovejoy is a resident of Lincoln County, West Virginia and owner of
`
`property located at Upper Mud River and Paiermo Road, Hamlin District, Lincoln County, West
`
`Virginia, within the Southern District of West Virginia.
`
`6.
`
`Defendant Jackson Resources is a West Virginia Business Corporation with its
`
`principle piace of business in Hamlin, Lincoln County, West Virginia, within the Southern District
`
`of West Virginia.
`
`F(1ch Common to All Counts
`
`7.
`
`RCRA is the federal public law that creates the framework for the proper
`
`management of both hazardous and non—hazardous solid wastes, to assure adequate protection of
`
`pubiic health and the environment. To accompiish these broad goats, Congress included within
`
`RCRA both regulatory and remedial provisions.
`
`8.
`
`RCRA § 1004(27) broadly defines “solid waste” as follows:
`
`The term “solid waste” means any garbage, refuse, sludge from a waste treatment
`plant, water supply treatment plant, or air pollution control faciiity and other
`discarded material, including solid, liquid, semisoiid, or contained gaseous material
`resuiting from industrial, commercial, mining, and agriculturai operations, and
`from community activities, but does not include solid or dissolved material in
`domestic sewage, or solid or dissoived materials in irrigation return flows or
`industrial discharges which are point sources subject to permits under section 1342
`
`

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`of title 33, or source, special nuclear, or byproduct material as defined by the
`Atomic Energy Act 0f1954, as amended (68 Stat. 923) [42 U.S.C. 201 1 et seq].
`
`42 U.S.C. § 6903(27).
`
`9.
`
`RCRA § 1004(5) sets forth the statutory definition of “hazardous waste,” which it
`
`expressly defines as a subset of “soiid waste”:
`
`The term “hazardous waste” means a soiid waste, or combination of soiid wastes,
`which because of its quantity, concentration, or physical, chemical, or infectious
`characteristics may—
`
`cause, or significantly contribute to an increase in mortality or an increase
`(A)
`in serious irreversible, or incapacitating reversible, iliness; or
`
`pose a substantial present or potential hazard to human health or the
`(B)
`environment when improperly treated, stored,
`transported, or disposed of, or
`otherwise managed.
`
`42 U.S.C. § 6903(5).
`
`10.
`
`This matter also concerns the presence, within environmental media at and in the
`
`vicinity of the Lovejoy Property of wastes released into the environment at and from, and
`
`continuing to migrate from the Jackson Facility, which wastes meet the narrower regulatory
`
`definition of“hazardous waste” under RCRA. In addition to providing broad statutory definitions
`
`of both soiid waste and hazardous waste for ail purposes of RCRA, Congress, in RCRA § 3001(a),
`
`directed the Administrator of US. EPA:
`
`to develop and promulgate criteria for identifying the characteristics of hazardous
`waste, and for listing hazardous waste, which shouid be subject to the provisions of
`this subtitle [i.e., Subtitle C of RCRA, 42 USCS §§ 6921 7 69393}, taking into
`account
`toxicity, persistence,
`and degradability in nature, potentiai
`for
`accumuiation in tissue,
`and other
`related factors
`such as
`flammabiiity,
`corrosiveness, and other hazardous characteristics.
`
`42 U.S.C. § 6921(a). Thus, Congress authorized and required the Administrator of US. EPA to
`
`select from out ot‘the universe of “hazardous wastes” congressionalty-defined in RCRA § 1004(5)
`
`a subset of those wastes
`
`that
`
`the Administrator determined should be subject
`
`to the
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`

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`Congressionally—created strict, regulatory program of RCRA Subchapter llI (sometimes also
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`known as RCRA Subtitle C—-i.e., RCRA §§ 30016064, 42 U.S.C. §§ 6901-6964). See 42 U.S.C.
`
`§ 6921.
`
`i1.
`
`Those “listed or identified” hazardous wastes to be designated by the US EPA
`
`pursuant to formally promulgated federal regulations issued under 42 U.S.C. § 6921, are a subset
`
`of the “statutory” hazardous wastes defined in 42 U.S.C. § 6903(5), that are subject to the very
`
`strict RCRA Subchapter Ill regulatory program—~a national, comprehensive “cradle to grave”
`
`“hazardous waste management”' system regulating, infer aim, the manner in which such wastes
`
`can be treated, stored, and disposed of. See 42 U.SAC. §§ 692l—6934. Chi v. EDP, 5} 1 U3. 328
`
`(1994) (“RCRA is a comprehensive environmental statute that empowers EPA to regulate
`
`hazardous wastes from cradle to grave, in accordance with the rigorous safeguards and waste
`
`management procedures of Subtitle C, 42 U.S.C. §§ 6921—6934.”). Throughout RCRA, Congress
`
`consistently refers to the subset of wastes designated by the Administrator pursuant to his authority
`
`under RCRA § 3001(a) that are subject to the stringent regulatory and punitive requirements of
`
`RCRA Subtitle C as “hazardous wastes listed or identified by the Administrator.”
`
`12.
`
`Moreover, pursuant to RCRA § 3006(b), 42 U.S.C. § 6926(b), a state may develop
`
`its own hazardous waste program (116., by the enactment of appropriate statutes, creation and
`
`funding of necessary goverrunental infrastructure and promulgation of necessary implementing,
`
`enforceabie administrative regulations). Upon approval of such a state hazardous waste
`
`management program by US. EPA, the state, pursuant to express Congressional authorization,
`
`1 RCRA § 1004(7), 42 U.S.C. § 6903(7), defines the term “hazardous waste management”:
`
`The term "hazardous waste management" means the systematic control of the
`collection, source separation, storage, transportation, processing, treatment, recovery,
`and disposal of hazardous wastes.
`
`

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`may operate that program “in lieu of the federal program within such state,” subject to certain
`
`federai requirements, the most notabie of which is that the state program must be equivalent to and
`
`consistent with the federal RCRA Subtitle C hazardous waste management program.
`
`See
`
`42 U.S.C.
`
`§ 6926(b). West Virginia’s hazardous waste management program, which is
`
`substantially similar to the federal program, has been formally approved by the Administrator of
`
`US. EPA and, accordingly, operates “in lieu of” the federal RCRA program within the State of
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`West Virginia. See 51 FR 1773913 (May 15, 1986); 65 FR 29973 (May 10, 2000); 78 FR 70225
`
`(November 25, 2013). The federai regulations pertaining to the listing and identification of
`
`hazardous wastes that are subject
`
`to the requirements of RCRA Subtitle C, set forth in
`
`40 CPR. Part 261, are incorporated by reference into section §33—20—3 of the West Virginia Code
`
`of State Rules, with minor modifications that are not relevant herein.
`
`i3.
`
`CERCLA Section 102(a), 42 U.S.C. § 9602(a), directs the Administrator of the
`
`US. Environmental Protection Agency to designate “as hazardous substances .
`
`.
`
`. such elements,
`
`compounds, mixtures, solutions, and substances which, when released into the environment may
`
`present
`
`substantial
`
`danger
`
`to
`
`the public
`
`health or welfare
`
`or
`
`the
`
`environment.”
`
`42 U.S.C. § 9602(a). The Administrator’s designations of the “hazardous substances” that are
`
`addressed by CERCLA are set forth in duly promulgated federai
`
`regulations codified at
`
`40 C.F.R. § 302.4.
`
`In furtherance of its goai in enacting CERCLA to provide powerfui remedial
`
`authority to address the adverse consequences to
`
`pubiic heaith and the environment from
`
`“hazardous substances” reieased into the environment, Congress,
`
`in CERCLA § 107(a),
`
`42 U.S.C. § 9607(3), imposes strict liability upon certain defined categories of “persons” for the
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`payment of “response costs” incurred or to be incurred by such “persons” arising from the release
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`or threatened release into the environment of such designated hazardous substances.
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`14.
`
`The Jackson Facility is located on the Lovejoy Property which has documented
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`releases of wastes to the environment. The Jackson Facility meets the definition of “facility” under
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`CERCLA § 101(9), 42 U.S.C. § 9601(9): “. . .(A) any building, structure, installation, equipment,
`
`pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit,
`
`pond, lagoon, impoundment, ditch, facility, storage container, motor vehicle, rolling stock, or
`
`aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed
`
`of, or placed, or otherwise come to be located; but does not include any consumer product in
`
`consumer use or any vessel.”
`
`15.
`
`Because of Lovejoy’s concern that contamination from the Jackson Facility had
`
`migrated or may have migrated onto the Lovejoy’s Property, a limited environmental investigation
`
`was conducted, at Lovejoy‘s expense, on October 16, 2018.
`
`This limited environmentai
`
`investigation revealed the presence of certain contaminants of concern, at elevated levels, in
`
`environmental media, at and under the Lovejoy Property.
`
`Sampling of the well revealed
`
`contamination of the groundwater by organic chemicals. The organic contaminant detected was
`
`Bis(2—ethy1hexyl)phthalate. This contaminant is not present in natural groundwaters. This
`
`contaminant was also found in soil samples immediately adjacent to Jackson Facility surface
`
`operations. Other organic contaminants found in the Lovejoy soils adjacent to Jackson operations
`
`were Benzo(a)anthracene, Benzo(b)fluoranthene, Benzo(k)
`
`fluoranthene,
`
`Chrysene,
`
`Fluoranthene, Phenanthrene and Pyrene, each identified below as a “solid waste,” within the
`
`meaning of 40 CPR. §261.2, with respect to its presence in environmental media at and
`
`emanating from the Jackson Facility.
`
`16.
`
`With respect to their presence at the Jackson Facility and their migration, through
`
`environmental media, at and from such facility to become present or to threaten to become present
`
`

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`in environmental media (soils, groundwater, and surface waters) at and in the vicinity of the
`
`Lovejoy Property,
`
`the substances released to environmental media at and from the Jackson
`
`Facility, are each a “soiid waste” within the meaning of 42 U.S.C. § 6903(27), in that each is a
`
`discarded material—«discarded by the Jackson Facilityeresulting from industriai or commercial
`
`operations of the Jackson Facility. The following is known concerning the substances:
`
`Bis(2—ethylhexyl)phthalate CAS #117—81—7 is a RCRA U028 Waste and a Clean Water
`
`Act (“CWA”) Priority Pollutant. USEPA has classified Bis(2~ethylhexyl)phthalate as a
`
`Group B2, probable human carcinogen. Orai exposure has resulted in developmental
`
`and reproductive effects in rats and mice. A study by the National Toxicology Program
`
`(NTP) showed that DEHP administered oraily increased the incidence of liver tumors
`
`in rats and mice.
`
`a Benzo(a)anthracene CAS# 56—5 5—3 is a RCRA U018 Waste and a Clean Water Act
`
`Priority Pollutant. Benzo(a)anthracene is reasonably anticipated to be a human
`
`carcinogen. Benzo(a)anthracene produced tumors in mice exposed by gavage;
`
`intraperitoneal, subcutaneous or intramuscular injection; and topical application.
`
`Benz[a]anthracene produced mutations in bacteria and in mammalian coils and
`
`transformed mammalian cells in culture.
`
`- Benzo(b)fiuoranthene CAS# 205—99—2 is a Clean Water Act Priority Pollutant.
`
`Benzo(b)fiuoranthene is reasonabiy anticipated to be a human carcinogen.
`
`o Benzo(k)fiuoranthene CAS# 207—08-9 is a Clean Water Act Priority Pollutant.
`
`Benzo(k)fluoranthene is reasonably anticipated to be a human carcinogen.
`
`o Chrysene CAS# 2E 8-01—9 is a RCRA U050 Waste and a Clean Water Act (“CWA”)
`
`Priority Poliutant. USEPA has classified Chrysene as a Group B2, probable human
`
`

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`carcinogen. Chrysene produced carcinomas and malignant lymphoma in mice after
`
`intrapcritoneal injection and skin carcinomas in mice following dermal exposure.
`
`Chrysene produced chromosomal abnormalities in hamsters and mouse germ cells
`
`after gavage exposure, positive responses in bacterial gene mutation assays and
`
`transformed mammalian cells exposed in culture.
`
`-
`
`Fiuoranthene CAS# 206—44—0 is a RCRA U120 Waste and a Clean Water Act
`
`(“CWA”) Priority Poilutant. Fluoranthene was mutagenic to cultured human
`
`lymphoblastoid cells
`
`in the presence of an exogenous metabolic system.
`
`Fluoranthene can produce behavioral toxicity in rats. Fluoranthene couid also
`
`compromise B lymphopoiesis. Not classifiabie as to human carcinogenicity.
`
`-
`
`Phenanthrene CAS# 85-01—8 is a Clean Water Act Priority Pollutant. Exposure to
`
`phenanthrene in PAHs may be a risk factor for hyperuricemia. A test in human
`
`iymphoblast TK6 cells with metabolic activation and 9 ug/mL phenanthrene
`
`yielded a forward mutation. Phenanthrene could be accumulated in fish resuiting
`
`in the changes of the activities of the antioxidant enzymes and the production of
`
`ROS with the oxidative stress.
`
`.
`
`Pyrene CAS# 129~00—0 is a Clean Water Act Priority Pollutant. Animal studies
`
`have shown pyrene is toxic to the kidneys and liver. It is now known that pyrene
`
`affects several living functions in fish and algae.
`
`17.
`
`With reSpect to their presence at the Lovejoy Property and their migration, through
`
`environmental media, at and from the Jackson Facility to become present or to threaten to become
`
`present in environmental media (soils, groundwater, and surface waters) at and in the vicinity of
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`

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`the Lovejoy Property, these substances, which have been reieased to the environment at and from
`
`the Jackson Facility and which have become present or which threaten to become present in
`
`environmental media (soils, groundwater, and surface waters) at and in the vicinity of the Lovej oy
`
`Property are each a “hazardous waste,” as defined by Congress in RCRA § £0046), 42 U.S.C. §
`
`6903(5), since each is a “solid waste,” within the meaning of 42 U.S.C. § 6903(27), which has
`
`been shown to cause or significantly contribute to an increase in mortality or an increase in serious
`
`irreversible, or incapacitating reversible, illness, and each poses a substantial present or potentiai
`
`hazard to human heaith or the environment when improperly treated, stored, transported, or
`
`disposed of, or otherwise managed.
`
`18.
`
`With respect to their presence at the Facility Jackson and their migration, through
`
`environmental media, at and from the Jackson Facility to become present or to threaten to become
`
`present in environmental media (soiis, groundwater, and surface waters) at and in the vicinity of
`
`the Lovejoy Property, the substances, which have been released to the environment at and from
`
`the Jackson Facility and which have become present or which threaten to become present in
`
`environmental media (soils, groundwater, and surface waters) at and in the vicinity of the Lovejoy
`
`Property are each a “solid waste,” within the meaning of 40 C.F.R. 53261.2, in that each is a
`
`“discarded materiai”—discarded by the Jackson Facilityfiwithin the meaning of 40 C.P.R.
`
`§ 26i.l(a) that is not subject to any of the exclusions set forth in that same paragraph 261.1(21).
`
`Accordingly, each such substance is a “solid waste,” within the meaning of 40 C.F.R. § 261.2.
`
`19.
`
`With respect to its presence at the Jackson Facility and its migration, through
`
`environmental media, at and from such facility to become present or to threaten to become present
`
`in environmental media (soils, groundwater, and surface waters) at and in the vicinity of the
`
`Lovejoy
`
`Property,
`
`the
`
`substances
`
`Bis(2—ethylhexyl)phthalate,
`
`Benzo(a)anthracene,
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`

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`Benzo(b)fluoranthene, Benzo(k)tluoranthene, Chrysene, Fluoranthene, Phcnanthrene and Pyrene
`
`are a “hazardous wastes listed or identified by the Administrator” under Subchapter III of RCRA
`
`and, thus, a “hazardous waste” for RCRA Subtitle C purposes as defined by 40 CPR. § 261.3(a)
`
`and under Titie 33, Series 20, of the West Virginia Code of State Rules because it is:
`
`(a) with
`
`respect to its presence in environmental media at and emanating from the Jackson Facility, a
`
`discarded material and “solid waste” under within the meaning of 40 C.F.R. §261.2, (b) not
`
`excluded from regulation as a hazardous waste under 40 C.F.R. § 261.4(b), and (c) listed as a
`
`hazardous waste under Subpart D of 40 C.F.R. Part 261 (in particular, under 40 C.F.R. § 26t.33,
`
`with waste code U108 when it has been, as it has been at the Jackson Facility, discarded into the
`
`environment).
`
`20.
`
`As noted above, the Administrator of the U.S. Environmental Protection Agency
`
`has iisted his designations of CERCLA hazardous substances at 40 C.F.R. § 302.4. The substances
`
`Bis(2—ethy111exyl)phthalate, Benzo(a)anthracene, Benzo(b)fiuoranthene, Benzo(k)flu0ranthene,
`
`Chrysene, Fiuoranthene, Phenanthrcne and Pyrene, which have been released to the environment
`
`at and from the Jackson Facility and which have become present or threaten to become present in
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`environmental media (soiis, groundwater, and surface waters) at and in the vicinity of the Lovejoy
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`Property, are each listed therein. Accordingly, such substances are, for the purposes of CERCLA
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`and its statutory scheme of liability, “hazardous substances.”
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`21.
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`In interpreting the provisions of CERCLA § 102(a) and 40 C.F.R. § 302.4, Federal
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`Courts have consistently heid that where a waste materiai contains a designated hazardous
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`substance, tike those referenced in the immediately preceding paragraph, then the entirety of that
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`waste material is itself a hazardous substance for the purposes of CERCLA. See, sag,
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`r {are of
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`Arizona and {he City ofPhoenix v. Motorola, Inc, 774 F. Supp. 566 (D. Ariz, 1991) United States
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`

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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 13 of 30 PageID #: 13
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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 13 of 30 PageID #: 13
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`v. Carolmrm, 21 Env‘t Rep. Cases 2124, 2126 (D.S.C. 1984). Accordingly, if and to the extent
`
`that any of the hazardous substances referenced in the immediately preceding paragraph were,
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`prior to release, mixed with another substance, such mixture was undeniably itself a “Hazardous
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`Substance” within the meaning of CERCLA § 101(14), 42 U.S.C. § 9601(14).
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`22.
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`Since no operation historically conducted at
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`the Lovejoy Property could have
`
`contributed the presence of these contaminants to the environment, the sole plausible source of
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`these contaminants on the Lovej oy Property, within environmental media underlying that property,
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`and in the vicinity thereof is the migration of such contaminants from the Jackson Facility. No
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`other source of the contaminants found at, under, and in the vicinity of the Lovejoy Property
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`reasonably exists.
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`23.
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`The
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`past
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`and
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`ongoing
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`disposal,
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`discarding,
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`and
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`release
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`of Bis(2—
`
`ethylhexyi)phthalate,
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`Benzo(a)anthracene,
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`Benzo(b)fluoranthene,
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`Benzo(i<)fluoranthene,
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`Chrysene, Fluoranthene, Phenantin‘ene and Pyrene at and from the Jackson and into the
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`environment has caused and is continuing to cause the contamination of environmental media. at
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`and on both the Jackson Faciiity and on nearby properties, including (without limitation) the
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`Lovejoy Property, resulting in a single, indivisible harm to human health and the environment, for
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`which harm no reasonable basis of apportionment between the individual acts of disposai,
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`individual wastes disposed of, or the parties responsible for the acts of disposal exists.
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`24.
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`Groundwater from the Jackson Facility is hydrologically connected to the Upper
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`Mud River watershed, a tributary of the Kanawha River. The endangerments that may be
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`presented from these environmentai contaminants include 1085 and degradation of biodiversity in
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`the receiving streams, bioaccumulation of contaminations in the wiidiife within the watershed, and
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`contamination of sediments, soii, groundwater and surface water by contaminants released or
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`

`

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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 14 of 30 PageID #: 14
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`discharged by these activities which generated, used, bandied, transported, stored, discharged or
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`released the waste, solid waste, toxic substances, hazardous substances, or hazardous materiais
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`which have already harmed and will continue to harm the environment, create and continue to
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`create a threat to human health and the environment, and unabated wiil continue to migrate within
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`the environment, resulting in further harms. As noted above, many of these contaminants in the
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`groundwatermwhich is connected to surface water--are easily absorbed by fish and other aquatic
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`organisms.
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`Smail concentrations can be toxic because some contaminants bioconcentrate.
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`Toxicity also produces adverse biological effects on an organism’s survival, activity, growth,
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`metabolism, or reproduction. Toxic contaminants can be lethal or harm the organism without
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`killing it directly. Adverse effects on an organism's activity, growth, metabolism, and reproduction
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`are examples of these sublethal effects, Some of the contaminates of concern may also bio—
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`accumulated within the piants and animals which are in direct or indirect contact with the food
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`chain and adversciy impact the health of these organisms and organisms which feed upon those
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`organisms, including pathways of human exposure to these contaminates.
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`25.
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`Since no institutional restrictions exist on groundwater use at the Lovej 0y Property,
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`it is both necessary and appropriate to consider the completed groundwater pathway to a human
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`receptor, including the drinking and showering pathway.
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`Indeed, no restrictive covenants would
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`prevent the deveiopment of the Lovejoy Property for residential use or the beneficiai extraction of
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`groundwater from below such property for human use. As noted above, these currently identified
`
`wmmmmmmfiamwmpmmmgmflmmmmmmhmmnmmmmmmememmm.
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`26.
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`While contaminants from Jackson Faciiity have been identified on the Lovejoy
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`Property, the fuli nature and extent, either verticaliy or horizontaily, of this contamination and the
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`endangerments to health and the environment that are or may be presented by it has not been
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`

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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 15 of 30 PageID #: 15
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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 15 of 30 PagelD #: 15
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`determined, nor has a complete Human Health and Ecological Risk Assessment for impacts to the
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`Lovej oy Property been performed
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`27.
`
`The contaminants which have been released at and from the Jackson Faciiity and
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`which have migrated or which threaten to continue to migrate onto and under the Lovej oy Property
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`have contaminated and threaten to contaminate the groundwater at and under the Lovej oy Property
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`and impair Lovejoy’s right of reasonable use of such groundwater through beneficial extraction
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`for all purposes,
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`including (without
`
`limitation) irrigation, human and animai consumption,
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`recreation, and aesthetics.
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`Such impairment of the beneficial uses of groundwater by toxic
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`contamination is but one manner in which Defendant’s impairment of environmental media has
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`adversely impacted the market value of the Lovejoy Property and Plaintiff’s investment in that
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`property.
`
`28.
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`At no time has Jackson Resources provided to Lovejoy the notice with respect to
`
`hazardous substance releases from the Jackson Facility required by CERCLA § 111(g),
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`42 U.S.C. § 9611(g) with respect to hazardous substance releases from the Jackson Facility.
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`29.
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`At no time has Jaekson Resources provided to Lovej oy the notice with respect to
`
`hazardous substance releases from the Jackson Facility required by CERCLA §
`
`lll(g),
`
`42 U.S.C. § 9611(g) with respect to hazardous substance releases from the Jackson Facility.
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`COUNT I
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`RECOVERY OF RESPONSE COSTS AND
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`DECLARATORY RELIEF UNDER CERCLA
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`(42 U.S.C. §§ 9607(21) and 9613(g))
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`30.
`
`Plaintiff incorporates and realieges the foregoing paragraphs, above, as if fully set
`
`forth herein.
`
`31.
`
`The Jaekson Faciiity is an installation, site, or area at which one or more CERCLA
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`hazardous substances, inciuding, have been deposited, stored, disposed of, placed, or otherwise
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`

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`Case 2:20-cv-00537 Document 1 Filed 08/10/20 Page 16 of 30 PageID #: 16
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`came to be located. Accordingly, the Jackson Facility is a “facility,” within the meaning of
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`CERCLA§ 101(9), 42 U.S.C. § 9601(9).
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`32.
`
`Jackson Resources owned and operated the Jackson Facility, inciuding portions at
`
`which CERCLA hazardous substances have been disposed, are currently located, and from which
`
`such hazardous substances have migrated.
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`33.
`
`During the time ofJackson Resource’ s ownership of the Jackson Facility, CERCLA
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`hazardous
`
`substances,
`
`including
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`Bis(2«ethylhexyl)phthalatc,
`
`Benzo(a)anthracene,
`
`Benzo(b)fluoranthene, Benzo(k)fiuoranthene, Chrysene, Fluoranthene, Phenantln‘ene and Pyrene,
`
`were disposed of at that location.
`
`34.
`
`CERCLA hazardous substances which were disposed of at the Jackson Facility
`
`have migrated, and continue to migrate, into and through environmental medi