State of Oregon v. United States of America, et al, 3:20-cv-01799, No. 1 (D.Or. Oct. 19, 2020) (2024)

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 2 of 16
`
`costs it has incurred to date and that it continues to incur every month in connection with the
`historic, ongoing and threatened release of hazardous substances into the environment at, on, and
`from Bradford Island, which is located at the Bonneville Dam in the Columbia River (the “Site”)
`in Multnomah County, Oregon. The State of Oregon also seeks a declaration that the Voluntary
`Cleanup Agreement (the “Agreement”) executed by Defendants on February 18, 1998 is
`enforceable and that the CERCLA response costs and/or remedial action costs incurred by the
`State of Oregon and paid by defendants to date were properly paid to the State of Oregon.
`JURISDICTION AND VENUE
`This Court has jurisdiction over the subject matter of this action and the
`2.
`defendants pursuant to 28 U.S.C. § 1331 because this case involves a civil action arising under
`the laws of the United States including Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607
`and 9613. The Court has supplemental jurisdiction under 28 U.S.C. § 1367 over related state law
`claims, and under Sections 120(a)(1) and 120(a)(4) of CERCLA, 42 U.S.C. § 9620(a)(4), for
`state removal and remedial actions that apply to facilities owned or operated by a department,
`agency, or instrumentality of the United States. The Court also has authority to provide relief
`under the Declaratory Judgment Act, 28 U.S.C. § 2201.
`3.
`Venue is proper in this District under Section 113(b) of CERCLA, 42 U.S.C. §
`9613(b), and 28 U.S.C. § 1391(b), because the claims arose, and the threatened and actual
`release of hazardous substances occurred and is occurring, within the District of Oregon.
`Assignment to the Portland Division of this District is proper pursuant to Local Rule 3-2(3)
`because a substantial part of the events or omissions giving rise to the claims occurred, or a
`substantial part of the property that is the subject of the action is situated within Multnomah
`County, which falls within the Portland Division.
`PARTIES
`Plaintiff, the State of Oregon, is a sovereign state in the United States of America
`4.
`existing under the constitution of the State of Oregon. The Oregon Department of Environmental
`
`Page 2 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 3 of 16
`
`Quality (“DEQ”) is an agency of the State of Oregon that is tasked with enforcing Oregon’s land,
`air, and water pollution laws. DEQ has authority pursuant to Section 104(d) of CERCLA, 42
`U.S.C. § 9604(d), Section 120 of CERCLA, 42 U.S.C. § 9620(a)(4), and the Oregon Cleanup
`Law, ORS chapter 465, to ascertain the nature and extent of contamination at, from, and to the
`Site, and DEQ has the authority to ensure the implementation of an effective cleanup of the Site
`in a manner consistent with the requirements for review and approval of the cleanup of
`hazardous substances.
`5.
`Defendants Department of the Army and the Army Corps of Engineers (the
`“Corps”) (collectively “Defendants”) are agencies of the Defendant United States; are the current
`owners and operators of the Site within the meaning of Section 107(a)(1) of CERCLA, 42 U.S.C.
`§ 9607(a)(1); and owned and operated certain facilities on the Site at the time of disposal of
`hazardous substances at the Site, within the meaning of Section 107(a)(2) of CERCLA, 42
`U.S.C. § 9607(a)(2).
`
`STATUTORY FRAMEWORK
`The State of Oregon’s Legislative Assembly has found that: “(a) The release of a
`6.
`hazardous substance into the environment may present an imminent and substantial threat to the
`public health, safety, welfare and the environment; and (b) The threats posed by the release of a
`hazardous substance can be minimized by prompt identification of facilities and implementation
`of removal or remedial action.” ORS 465.200(1).
`7.
`Following its findings in ORS 465.200(1), the State of Oregon’s Legislative
`Assembly has declared that:
`(a) It is in the interest of the public health, safety, welfare and the environment to
`provide the means to minimize the hazards of and damages from facilities.
`(b) It is the purpose of ORS 465.200 to 465.545 and 465.900 to:
`(A) Protect the public health, safety, welfare and the environment; and
`
`Page 3 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 4 of 16
`
`(B) Provide sufficient and reliable funding for the Department of Environmental
`Quality to expediently and effectively authorize, require or undertake removal or
`remedial action to abate hazards to the public health, safety, welfare and the
`environment.”
`8.
`To achieve these environmental goals, the State of Oregon’s Legislative
`Assembly has authorized DEQ to:
`“(a) [u]ndertake independently, in cooperation with others or by contract,
`investigations, studies, sampling, monitoring, assessments, surveying, testing,
`analyzing, planning, inspecting, training, engineering, design, construction,
`operation, maintenance and any other activity necessary to conduct removal or
`remedial action and to carry out the provisions of ORS 465.200 to 465.545 and
`465.900; and (b) [r]ecover the state’s remedial action costs.” ORS 465.210(1) (the
`“Environmental Cleanup Program”).
`The Environmental Cleanup Program protects human health and the environment by identifying,
`investigating, and remediating sites contaminated with hazardous substances. The program's
`objective is to improve sites to the point where no further cleanup action is necessary - as
`inexpensively and quickly as possible. The Environmental Cleanup Program specifically
`authorizes DEQ to participate in or conduct activities pursuant to CERCLA. ORS 465.210(2).
`9.
`Similarly, section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in part:
`“(1) the owner and operator of a vessel or 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) . . . shall be liable for –
`(A) all costs of removal or remedial action incurred by … a State …
`not inconsistent with the national contingency plan . . .”
`10.
`CERCLA Section 101(21) defines “person” to include the United States. 42
`
`Page 4 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 5 of 16
`
`U.S.C. § 9601(21).
`11.
`CERCLA Section 120(a)(1) provides that the United States “shall be subject to,
`and comply with, this chapter in the same manner and to the same extent, both procedurally and
`substantively, as any nongovernmental entity, including liability under section 9607 of this title.”
`42 U.S.C. § 9620(a)(1). Section 120(a)(4) of CERCLA provides that “[s]tate laws concerning
`removal and remedial action, including State laws regarding enforcement, shall apply to removal
`and remedial action at facilities owned or operated by a department, agency, or instrumentality of
`the United States.” 42 U.S.C. § 9620(a)(4).
`12.
`CERCLA Section 101(9) defines “facility” to include “(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, landfill, 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 . . . .” 42 U.S.C. §
`9601(9).
`CERCLA Section 101(24) defines “remedial action” to include “those actions
`13.
`consistent with 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).
`
`FACTUAL ALLEGATIONS
`The Site is part of the Bonneville Dam complex, which is located on the
`14.
`Columbia River at River Mile (RM) 146.1, approximately 40 miles east of Portland, Oregon.
`15.
`The Site is a “facility” within the meaning of Section 101(9) of CERCLA, 42
`U.S.C. § 9601(9), and ORS 465.200(13).
`
`Page 5 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 6 of 16
`
`Defendants currently own and operate the Site as part of Bonneville Dam and
`16.
`Lock, including a visitor center, fish ladders, a service center building, an equipment building,
`and a sandblast building.
`17.
`From approximately 1942 until 1982, the Defendants managed and disposed of
`waste materials at a landfill in excavated pits or existing depressions at the eastern end of the Site
`(“landfill”). Waste materials placed in the landfill included household waste, facility-related
`waste (e.g., grease, light bulbs, sandblast grit), electrical debris, light ballasts, metal debris, metal
`cables, building materials containing asbestos, burned debris, wood debris, rubber tires, and
`mercury vapor lamps; pesticides/herbicides were mixed and rinsed from application equipment
`in this area.
`Disposal and handling practices by the Defendants at the landfill have impacted
`18.
`the Site’s soil and groundwater with petroleum hydrocarbons, polycyclic aromatic hydrocarbons
`(“PAHs”), metals, polychlorinated biphenyls (“PCBs”), and pesticides/herbicides.
`19.
`Directly north of the landfill, the Defendants disposed of electrical equipment
`debris directly into the Columbia River. This equipment included light ballasts, electrical
`insulators, lightning arresters, electrical switches, rocker switches, a breaker box, and electrical
`capacitors. This disposal resulted in releases of PCBs, PAHs, and various metals into the
`surrounding river sediment.
`20. West of the landfill on the north end of the Site, the Defendants disposed of
`electrical light bulb debris on a steep slope extending into the Columbia River (“Bulb Slope”).
`Materials disposed by the Defendants at the Bulb Slope included internal and external light
`bulbs, fluorescent light bulbs, and automobile light bulbs as well as other electrical lighting
`waste. Disposal at the Bulb Slope has resulted in releases of lead, mercury, PCBs, and total
`petroleum hydrocarbons (TPH) to the Site’s surface soils. At the base of the Bulb Slope, much of
`the contaminated soil has migrated into the Columbia River through wave erosion and slope
`failure.
`
`Page 6 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 7 of 16
`
`From 1958 until 1988, the Defendants used the sandblast building at the Site for
`21.
`sandblasting operations and painting of equipment used at the facility. Defendants then disposed
`of the sandblast grit onto open areas surrounding the sandblast building (the “Sandblast Area”).
`The sandblast grit consisted of paint materials that contain metallic (including lead and zinc
`chromate) and organometallic compounds. This disposal of spent sandblast grit has resulted in
`releases of metallic and organometallic constituents into the Site’s surface and subsurface soil
`and potentially into the Columbia River via the storm water drainage system. Other operations
`by the Defendants at the Sandblast Area included electrical transformer disassembly and
`aboveground storage of hazardous waste materials, which resulted in additional releases of
`PCBs, metals, pesticides, TPH, PAHs, and volatile organic compounds (“VOCs”) to Site soils.
`22.
`From the 1940s until the 1970s, the Defendants used a pistol range at the Site for
`small arms target practice. Soils in the vicinity of the pistol range on the south end of the Site
`have been impacted with metals associated with this operation.
`23.
`Beginning in 1997, the Defendants conducted soil, groundwater and sediment
`investigations at the Site in coordination with DEQ.
`24.
`Specifically, pursuant to Executive Order 12580, the Corps has been the lead
`agency for the Site since 1997, when the Corps’ Portland District began conducting
`investigations at the Site in coordination with DEQ under DEQ’s Voluntary Cleanup Program.
`25.
`DEQ’s Voluntary Cleanup Program provides oversight to property owners and
`others wishing to investigate and clean up hazardous substance sites in a voluntary, cooperative
`manner. The program's goal is to increase the number of remediated sites by streamlining the
`cleanup process while ensuring compliance with Oregon environmental regulations. Projects
`range from simple sites with a limited amount of contaminated soil to complex sites with
`multiple contaminants in soil, groundwater, surface water, sediment, and/or air.
`26.
`Pursuant to ORS 465.260(2) & (4) as applied to the Site by Section 120 of
`CERCLA, 42 U.S.C. § 9620(a)(4), DEQ “may authorize any person to carry out any removal or
`
`Page 7 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 8 of 16
`
`remedial action in accordance with any requirements of or directions from the director, if the
`director determines that the person will commence and complete removal or remedial action
`properly and in a timely manner” or “require a person liable under ORS 465.255 to conduct any
`removal or remedial action or related actions necessary to protect the public health, safety,
`welfare and the environment.” Pursuant to ORS 465.330, DEQ is required to recover its remedial
`action costs. Consistent with Executive Order 12580, pursuant to Section 120 of CERCLA, 42
`U.S.C. § 9620(a)(4), and pursuant to ORS 465.260 and 465.330, on February 18, 1998, the Corps
`executed the Agreement. A true and correct copy of the Agreement is attached as Exhibit 1 and
`is incorporated herein by reference.
`27.
`The Agreement confirmed that DEQ would review and provide oversight of the
`Corp’s investigation and/or cleanup of hazardous substances at the Site. DEQ agreed to review
`environmental documents submitted by the Corps regarding the investigation and/or cleanup of
`the Site.
`By letter dated September 18, 2019 to DEQ, the Corps confirmed that the Corps
`28.
`entered into the Agreement to “enable the [DEQ] to provide significant oversight in addressing”
`the “historic releases of hazardous substances” at the Site.
`29.
`In exchange for DEQ’s review and oversight of the Corps’ investigation and/or
`cleanup of hazardous substances at the Site, the Corps agreed to pay DEQ’s project costs
`including direct costs and indirect costs. According to the Agreement, DEQ’s direct costs
`included site-specific expenses and legal costs. According to the Agreement, DEQ’s indirect
`costs included general management and support costs.
`30.
`In the Agreement, DEQ agreed to provide monthly invoices to the Corps for
`DEQ’s project costs related to the Corps’ investigation and/or cleanup of hazardous substances at
`the Site including both direct costs and direct costs. Under the Agreement, the Corps agreed to
`pay DEQ’s monthly invoices for DEQ’s costs including both direct costs and direct costs.
`
`Page 8 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 9 of 16
`
`The Corps’ investigation confirmed that the Corps’ past practices at the Site
`31.
`resulted in releases of hazardous substances into the soil, groundwater, and surface water in the
`Columbia River. Contaminants of Concern (“COCs”) include petroleum hydrocarbons,
`polycyclic aromatic hydrocarbons (“PAHs”), metals (e.g., lead and mercury), polychlorinated
`biphenyls (“PCBs”), pesticides/herbicides, and volatile organic compounds (“VOCs”).
`32.
`The Corps’ contamination of the Site has caused significant impacts to the river
`sediment and the fractured bedrock river-bottom in the vicinity of the Site. The full nature and
`extent of in-river contamination is undefined. Resident fish such as smallmouth bass caught near
`the Site contain extremely high concentrations of PCBs as well as other COCs. Despite multiple
`removal actions, sediment, clam and fish tissue sampling in 2011 indicate that COC
`concentrations have not declined and have actually increased in fish. Impacted surface soils in
`certain parts of the Site such as the Sandblast Area and Bulb Slope remain uncontained (e.g.,
`sandblast grit triggering RCRA hazardous waste criteria). Stormwater discharge from
`contaminated areas of the Site have not been regulated or monitored pursuant to a permit issued
`under the National Permit Discharge Elimination System (NPDES). Recent (2018–2019)
`stormwater and catchbasin sampling results from the Sandblast Area indicate that stormwater
`continues to be an ongoing source of contamination to the river. Porewater and near-bottom
`surface water sampling was conducted in 2018 in order to identify source areas, but results were
`inconclusive. Additional stormwater sampling, near-bottom river water sampling, and sampling
`of fish, clams and crayfish are being conducted in 2020.
`33.
`Following execution of the Agreement, Defendants have undertaken response
`actions at the Site, including, but not limited to, removal actions in the Columbia River in 2002
`and 2007, and a draft Remedial Investigation (“RI”) report in 2010 and revised RI report in 2012.
`34.
`Investigations conducted by the Defendants and DEQ, including the draft
`RI, have shown that as a result of the Defendants’ waste disposal practices, soil, sediments and
`groundwater are contaminated with “hazardous substances” as that term is defined in Section
`
`Page 9 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 10 of 16
`
`101(14) of CERCLA, 42 U.S.C. § 9601(14) and ORS 465.200(16).
`35.
`Hazardous substances, including PCBs and metals, were found in samples of
`sediments in the Columbia River at the Site.
`36.
`Hazardous substances, including PCBs, PAHs, TPH, VOCs, SVOCs, pesticides,
`and metals, were found in samples of surface and subsurface soils at the Site.
`37.
`Hazardous substances, including PCBs and metals, were found in samples of fish
`and other aquatic species in the Columbia River at and near the Site.
`38.
`Hazardous substances, including PAHs, TPH, VOCs, SVOCs, butyl tins, and
`metals, were found in samples of groundwater at the Site.
`39.
`There were and are “releases” within the meaning of Section 101(22) of
`CERCLA, 42 U.S.C. § 9601(22) and ORS 465.200(22), as well as the threat of continuing
`releases, of hazardous substances into the environment at and from the Site.
`40.
`Pursuant to the Agreement, pursuant to section 107(a) of CERCLA, 42 U.S.C. §
`9607(a), and pursuant to ORS 465.260 and ORS 465.330, beginning on or after January 1, 1998
`to the present, DEQ issued monthly invoices to the Corps for DEQ’s project costs related to the
`Corps’ investigation and/or cleanup of hazardous substances at the Site including both direct
`costs and direct costs. Following the Agreement and pursuant to section 107(a) of CERCLA, 42
`U.S.C. § 9607(a), and ORS 465.260, the Corps paid DEQ’s monthly invoices for DEQ’s costs
`including both direct costs and direct costs.
`41.
`By letter dated September 18, 2019, pursuant to the termination clause in the
`Agreement, the Corps gave 15 days’ notice of the termination of the Agreement effective
`October 4, 2019.
`42.
`By letter dated July 31, 2020 to DEQ, the Corps alleged that Executive Order
`12580 and CERCLA “did not, and do not allow for the cost reimbursem*nt arrangements set
`forth in the [Agreement].” The Corps alleged that the “Corps is not, and was not, legally
`permitted to pay [DEQ’s] costs under the [Agreement].” The Corps further alleged that “the
`
`Page 10 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 11 of 16
`
`Corps will not reimburse DEQ” for future costs. The Corps then stated that it seeks repayment
`from DEQ of the monies paid to DEQ under the Agreement, and the Corps alleged that the
`unauthorized payments to DEQ amounted to “the sum of $768,923.40.”
`43.
`On August 20, 2020, the Corps then issued a bill to DEQ for $768,923.40. A true
`and correct copy of the Corps’ August 20, 2020 bill to DEQ is attached as Exhibit 2 and is
`incorporated herein by reference. In the bill, the Corps alleged that DEQ was “overpaid
`$768,923.40 for [DEQ’s] costs under the Voluntary Cleanup Program.” The Corps further
`alleged that the Corps “is not and was not legal permitted to pay these costs.”
`44.
`Following the Corps’ termination of the Agreement, DEQ continued to incur
`remedial action costs related to the ongoing investigation at the Site. To date, DEQ has incurred
`costs in excess of $71,000.00 since the Corps terminated the Agreement. Going forward, DEQ
`will continue to incur remedial actions costs related to the ongoing investigation at the Site and
`with respect to any future remedial action taken at the Site.
`FIRST CLAIM FOR RELIEF
`(Claim for Recovery of CERCLA Costs and Declaratory Judgment for Future Costs)
`45.
`The State of Oregon incorporates by reference all paragraphs of this complaint set
`out above as if fully set forth herein.
`46.
`The Defendants are liable parties under Section 107(a)(1) and (2) of CERCLA, 42
`U.S.C. § 9607(a)(1)-(2).
`47.
`From January 1, 1998 to the present, the releases or threatened releases of
`hazardous substances at the Site have caused the State of Oregon to incur response costs as
`defined by Sections 101(25) and 107(a) of CERCLA, 42 U.S.C. §§ 9601(25) and 9607(a), in
`connection with the Site.
`48.
`From January 1, 1998 through September 30, 2019, DEQ incurred costs of
`$768,923.40. From October 1, 2019 to the present, the State of Oregon incurred costs in excess
`of $71,000. The costs incurred by the State of Oregon from January 1, 1998 to the present in
`
`Page 11 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 12 of 16
`
`connection with response actions at the Site are not inconsistent with the National Contingency
`Plan, 40 C.F.R. Part 300.
`49.
`As of September 14, 2020, the State of Oregon has incurred unreimbursed
`response costs for the Site in an amount in excess of $71,000, and the State of Oregon will
`continue to incur costs related to the Site going forward.
`50.
`Pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), the Defendants are
`liable to the State of Oregon for the costs incurred by DEQ in connection with response actions
`at the Site. The State of Oregon’s costs include reasonable attorneys’ fees incurred by the State
`of Oregon. 42 U.S.C. § 9607(a).
`51.
`Pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2)(B), the State
`of Oregon is entitled to a “declaratory judgment on liability for response costs or damages that
`will be binding on any subsequent action or actions to recover further response costs or
`damages.”
`
`SECOND CLAIM FOR RELIEF
`ORS 465.255 – Strict Liability – Remedial Action Costs
`The State of Oregon incorporates by reference all paragraphs of this complaint set
`52.
`out above as if fully set forth herein.
`53.
`Pursuant to Section 120(a)(4) of CERCLA, 42 U.S.C. § 9620(a)(4), the Oregon
`Cleanup Law, including the laws regarding enforcement, applies to the removal and remedial
`actions at the Site.
`54.
`ORS 465.255(1) provides that the “following persons shall be strictly liable for
`those remedial action costs incurred by the state or any other person that are attributable to or
`associated with a facility and for damages for injury to or destruction of any natural resources
`caused by a release: (a) Any owner or operator at or during the time of the acts or omissions that
`resulted in the release.”
`
`Page 12 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 13 of 16
`
`For the purposes of liability under ORS 465.255(1), Defendants are “persons”
`55.
`within the meaning of ORS 465.200(21), and are the past or present “owners or operators” of the
`Site within the meaning of ORS 465.200(20).
`56.
`The Contaminants of Concern described in paragraphs 31-38 above are
`“hazardous substances” within the meaning of ORS 465.200(16). The presence of these
`hazardous substances in soils and sediments at the Site constitutes a “release” or “threat of
`release” of hazardous substances into the environment within the meaning of ORS
`465.200(22).
`In response to the release of hazardous substances to the environment at the Site,
`57.
`DEQ undertook remedial action measures for the protection of public health and the
`environment. DEQ undertook these measures pursuant to its authorities under the state
`environmental cleanup law, ORS 465.200 – 465.545.
`58.
`From January 1, 1998 through September 30, 2019, DEQ incurred costs of
`$768,923.40. From October 1, 2019 to the present, the State of Oregon incurred costs in excess
`of $71,000. These costs were “remedial action costs” within the meaning of ORS 465.200(24).
`The Corps was liable for these costs and properly paid DEQ for these costs pursuant to the
`Agreement, pursuant to Section 120(a)(4) of CERCLA, 42 U.S.C. § 9620(a)(4), and pursuant to
`ORS 465.325.
`To date DEQ has incurred unreimbursed costs at the Site in an amount in excess
`59.
`of $71,000 in undertaking these activities. These costs are “remedial action costs” within the
`meaning of ORS 465.200(24) (“‘Remedial action costs’ means reasonable costs which are
`attributable to or associated with a removal or remedial action at a facility, including but not
`limited to the costs of administration, investigation, legal or enforcement activities, contracts and
`health studies.”)
`60.
`Going forward DEQ will continue to incur remedial action costs within the
`meaning of ORS 465.200(24) for work at the Site.
`
`Page 13 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 14 of 16
`
`DEQ is authorized to bring an action to recover its remedial action costs pursuant
`61.
`to ORS 465.330.
`62.
`As an owner or operator at or during the time of the acts or omissions that resulted
`in the releases described above, Defendants are liable for all DEQ’s remedial action costs
`incurred from January 1, 1998 to the present pursuant to ORS 465.255.
`63.
`Defendant are also strictly liable for damages for injury to or destruction of any
`natural resources caused by the releases described above. ORS 465.255(1).
`64.
`Because Defendant’s have not paid the State of Oregon’s unreimbursed remedial
`action costs, DEQ is authorized to bring an action in the name of the State of Oregon in a court
`of competent jurisdiction to recover the amount owed, plus reasonable legal expenses and an
`award of prejudgment and post judgment interest at the statutory rate. ORS 465.330(3); ORS
`82.010.
`
`Pursuant to the State of Oregon’s Uniform Declaratory Judgments Act, ORS
`65.
`28.010-28.160, “[c]ourts of record within their respective jurisdictions shall have power to
`declare rights, status, and other legal relations, whether or not further relief is or could be
`claimed … The declaration may be either affirmative or negative in form and effect, and such
`declarations shall have the force and effect of a judgment.”
`66.
`Pursuant to State of Oregon’s Uniform Declaratory Judgments Act, the State of
`Oregon is entitled to a declaratory judgment on the Corp’s liability for all remedial actions costs
`incurred by DEQ at the Site from January 1998 to the present and for a judgment that will be
`binding on any subsequent action or actions to recover further remedial action costs.
`67.
`This Court has jurisdiction over these state law claims pursuant to Section
`120(a)(4) of CERCLA, 42 U.S.C. § 9620(a)(4). The Court also has supplemental jurisdiction
`over these state law claims pursuant to 28 U.S. Code § 1367 because the state law claims that are
`so related to the federal claims in the action that they form part of the same case or controversy
`under Article III of the United States Constitution.
`
`Page 14 - COMPLAINT FOR CERCLA COST RECOVERY AND DECLARATORY JUDGMENT
`DM #10432645 v8
`
`Oregon Department of Justice
`100 SW Market St.
`Portland, OR 97201
`(503) 934-4400 / Fax: (503) 373-7067
`
`

`

`Case 3:20-cv-01799-SB Document 1 Filed 10/19/20 Page 15 of 16
`
`THIRD CLAIM FOR RELIEF
`Declaratory Relief
`The State of Oregon incorporates by reference all paragraphs of this complaint set
`68.
`out above as if fully set forth herein.
`69.
`The Court has authority to provide relief under the Declaratory Judgment Act, 28
`U.S.C. § 2201. Specifically, in a case of actual controversy within its jurisdiction, this Court
`“may declare the rights and other legal relations of any interested party seeking such declaration,
`whether or not further relief is or could be sought. Any such declaration shall have the force and
`effect of a final judgment or decree and shall be reviewable as such.”
`70.
`Pursuant to 28 U.S.C. § 1331 and the State of Oregon’s Uniform Declaratory
`Judgments Act, any person interested under a “written contract or other writing constituting a
`contract … may have determined any question of construction or validity arising under any such
`… contract … and obtain a declaration of rights, status or other legal relations thereunder.”
`71.
`A justiciable controversy exists between the State of Oregon and Defendants’
`with respect to Defendants’ duties and obligations under the Agreement.
`72.
`As a result, a declaratory judgment by the Court is necessary to resolve the
`controversy between the parties.
`73.
`Specifically, the State of Oregon seeks a declaration from the Court that the
`Agreement is and/or was enforceable from its execution on February 18, 1998 through its
`termination on October 4, 2019 and that as a