Joint Appendix — United States Department of Energy v. Ohio

’ - I. i D

euprome Court, U.S

ry ‘s

j/ ’

JUL 25 1997 |

Nos. 90-1341 and 90-1517

UrFiCe GF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER

Vv.

STATE OF OHIO, ET AL.

STATE OF OHIO, ET AL., CROSS-PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOINT APPENDIX

LEE FISHER KENNETH W. STARR

Attorney Genera’ of Ohio Solicitor General

Department of Justice

JACK A. VAN KLEY

Assistant Attorney General

Environmental Enforcement Section

80 East Broad Street, 25th Floor

Columbus, Ohio 43266-0410

(614) 466-2766

Counsel for Cross-Petitioner

NL

PETITION FOR A WRIT OF CERTIORARI FILED:

FEBRUARY 22, 1991

CROSS-PETITION FOR A WRIT OF CERTIORARI FILED:

MARCH 26, 1991

CERTIORARI GRANTED: JUNE 3, 1991

Washington, D.C. 20530

(202) 514-2217

Counsel for Petitioner

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1341

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER

Vv.

STATE OF OHIO, ET AL.

No. 9€-1517

STATE OF OHIO, ET AL., CROSS-PETITIONERS

v.

UNITED STATES DEPARTMENT OF ENERGY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOINT APPENDIX

TABLE OF CONTENTS *

Page

ce om 1

2. Complaint (filed March 11, 1986) com 3

3. Answer of federal defendants (filed April 29, 1988) | 44

4. Consent decree (entered December 2, 1988) 63

5. Stipulation between DOE and Ohio relating to

Ohio’s Claims for Civil Penalties (filed December

a Re ee Bias 87

6. Order granting certiorari in 90-1341 __ 93

7. Order granting certiorari in 90-1517 ss —st 94

*The opinion and judgment of the court of appeals, the order

of the court of appeals denying rehearing, and the opinion of the

district court are printed in the appendix to the petition for writ

of certiorari and have not been reproduced here.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

STATE OF OHIO

v.

UNITED STATES DEPARTMENT OF ENERGY, ET AL.

RELEVANT DOCKET ENTRIES

DATE NR

3/11/86 1

11/7/86 20

3/18/88 74

4/29/88 83

8/3/88 89

9/23/88 92

12/2/88 94

12/2/88 95

ee ee ee ——_ - ——_

PROCEEDINGS

Complaint filed. Summons issued to pitfs

counsel for service.

MOTION TO DISMISS and MOTION TO

STAY CLAIM FOR NATURAL RESOURCE

DAMAGES by U.S. Dept of Energy

ORDER (J. SPIEGEL) DENYING DEFT’S

MOT. TO DISMISS.

ANSWER OF FEDERAL DEFTS.

MOTION TO AMEND the court’s March 18,

1988 order and certify such order for inter-

locutory review under 28:1292.

ORDER GRANTING MOT. TO AMEND OR-

DER ENTERED MAR 18, 1988 & certifying

such order for interlocutory review, etc.

STIPULATION between DEPT OF ENERGY

& STATE OF OHIO to OHIO’s claims for civil

penalties.

CONSENT DECREE entered by J. Spiegel.

‘l)

2

JNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 89-3329 and 88-8350

STATE OF OHIO; ANTHONY J. CELEBREZZE, JR.,

Attorney General

v.

U.S. DEPARTMENT OF ENERGY

RELEVANT DOCKET ENTRIES

DATE PROCEEDINGS

4/17/89 ORDER filed: defendant-petitioner’s petition for

permission to appeal is GRANTED * * *

6/11/90 OPINION filed: AFFIRMED * * *

6/11'99 JUDGMENT: AFFIRMED * * «

10/10/90 ORDER filed denying petition for en banc re-

hearing * * *

10/18/90 MANDATE ISSUED * * #

3

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No, C-1-86-0217

STATE OF OHIO, EX REL. ANTHONY J. ( ‘ELEBREZZE, JR.

ATTORNEY GENERAL OF ONO

30 East Broad Street

Columbus, OH 43215, PLAINTIFF

v.

UNITED STATES DEPARTMENT OF ENERGY

1000 Independence Ave.. S.W.

Washington, D.C, 26585

and

JOHN S. HERRINGTON

Secretary of Energy

U.S. Department of Energy

1000 Independence Ave., S.W.

Washington, D.C. 20585

and

NLO, INe.

P.O. Box 39158

Cincinnati, OH 45239

and

NL INpustries, INc.

1230 Avenue of the Americas

New York, NY 10020, perENDANTS

COMPLAINT

[Filed Mar. 11, 1986)

I. NATURE OF THE ACTION

1. This is a civi] action brought by the State of Ohio

on the relation of its Attorney Genera! and at the re-

4

quest of the Director of Environmental Protection for

injunctive relief, damages, civil penalties, and declara-

tory relief against the Defendants: the U.S. Department

of Energy (hereinafter “DOE” ), the Secretary of Energy

(hereinafter “Herrington”), and their contractors at the

Feed Materials Production Center, NLO, Inc. (herein-

after “NLO”) and NL Industries, Inc. (hereinafter “NL

Industries”). At this site, the Defendants have stored

and disposed of hazardous wastes in pits, drums, and

other devices in violation of state and federal hazardous

waste laws and regulations, they have released radioac-

tive materials and other hazardous substances into the

air, water, and soil, and they have polluted surface water

and groundwater with chemical and radioactive contami-

nants. This pollution, as well as threats of future pol-

lution, presents a serious danger to the environment and

-hatural resources of the State of Ohio and to the health

and safety of its citizens. By this action, Plaintiff seeks

the following relief against the entities creating and/or

maintaining this dangerous situation: (1) reimbursement

of the response costs the State has incurred and will in-

cur to prevent, minimize, investigate, and/or eliminate

the threat which the site poses to the public health and

safety and the environment; (2) damages the State’s

natural resources have sustained and wil] sustain as a

result of releases of hazardous substances from the site

into the environment: (3) injunctive relief; (4) civil

penalties; (5) declaratory relief; and (6) mandamus,

which are sought pursuant to (a) the Comprehensive

Environmental Response, Compensation, and Liability

Act of 1980 (“CERCLA”), 42 U.S.C. Sections 9601 ef

seq. (b) the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. Sections 6901 et seq., and the

regulations promulgated thereunder; (c) the Clean Water

Act (“CWA”), 33 U.S.C. Sections 1251 et seq.; (d) the

Ohio Solid and Hazardous Waste Control Act, Ohio Re-

vised Code Chapter 3734, and the rules promulgated

thereunder; (e) the Ohio Water Pollution Control Act,

Ohio Revised Code Chapter 6111, and the rules promul-

5

gated thereunder; (f) the Federal Declaratory Judgment

Act, 28 U.S.C. Section 2201; and (g) 28 U.S.C. Section

1361 (mandamus to compel an officer or agency of the

United States to perfor: duty); (h) Executive Order

12088; and (i) the Administrative Procedure Act, 5

U.S.C. Sections 551 et seq.

II. JURISDICTION

2. This Court has subject matter jurisdiction over the

claims asserted herein under federal law pursuant to 42

U.S.C. Section 9613(b) (CERCLA), 42 U.S.C. Section

6972(a) (RCRA), 33 U.S.C. Section 1365 (a) (CWA),

28 U.S.C. Section 1331 (federal question), 28 U.S.C.

Section 1361 (mandamus), and 28 U.S.C. Section 2201

(declaratory judgment), and 28 U.S.C. Section 1337

(interstate commerce). The Court has pendent jurisdic-

tion over the claims asserted under the laws of the State

of Ohio.

3. By letters dated December 18, 1984 and February

20, 1986, Plaintiff notified the Administrator of the

United States Environmental Protection Agency (“U.S.

EPA”) of the violations of RCRA described in this Com-

plaint and stated the State’s intent to file suit, as required

by 42 U.S.C. Section 6972(C). The notices were also sent

to DOE, NLO, NL Industries, and the Secretary of

Energy. The Administrator, Secretary, DOE, NLO, and

NL Industries received the December 18, 1984 notice more

than sixty days prior to the filing of this lawsuit. The

second notice, containing notice of violations of RCRA

Subtitle C only, was received by the Defendants prior to

institution of this lawsuit, as required by 42 U.S.C. Sec-

tion 6972(¢). Copies of these notices are attached hereto

as Exhibits A and B and are fully incorporated herein by

reference.

4. By letter dated December 18, 1984, Plaintiff notified

the Administrator of U.S. EPA, DOE. NL Industries, and

the Secretary of the violations of the CWA described in

this Complaint, as required by 33 U.S.C. Section 1365(b).

= > -—_——..

6

The Administrator, DOR, NLO, NL Industries, and the

Secretary received this notice more than sixty days prior

to the filing of this lawsuit. A copy of this notice is

attached hereto as Exhibit C and is fully incorporated

herein by reference.

5. By a letter which was dated November 1, 1985 and

which was received by its addressees more than sixty

days ago, Plaintiff presented DOE, Herrington, NLO, and

NL Industries with a claim of $206,066,792.49 for past

and future costs of investigating and cleaning up the

hazardous substances released by these Defendants at the

Feed Materials Production Center. The letter also pre-

sented a claim of $205,000,000.00 to reimburse the State

for damages to its natural resources damages. This letter

is attached hereto as Exhibit D and is fully incorporated

herein by reference.

Ill. VENUE

6. Venue is proper in this Court pursuant to 28 U.S.C.

Section 1391, 42 U.S.C. Section 9613(b), 33 U.S.C. See-

tion 1365/(¢), and 42 U.S.C. Section 6972 (a).

IV. PARTIES

A. The Plaintiff And The Plainti ff's Relator.

7. The Plaintiff is the State of Ohio, which holds all

natural resources, including the air, lands, and waters

located within its political boundaries, in trust for the

benefit of its citizens. As trustee of the natural resources

located within its boundaries, Plaintiff owes a fiduciary

duty to its citizens to protect and conserve its natural

resources. As trustee of these natural resources, Plaintiff

has been injured by the pollution of these natural re-

sources with hazardous materials and water contaminants

caused by the actions of the Defendants as described

herein.

7

%. Plaintiffs relator is Anthony J. Celebrezze, Jr.,

Attorney General of Ohio. By virtue of his office, Attor-

ney General Celebrezze is the chief legal officer of the

State of Ohio. Plaintiff's relator institutes this action

on behalf of the State of Ohio and at the request of the

Director of Environmental Protection, State of Ohio, who

is charged under Ohio law with the responsibility of pro-

tecting the air, lands, and waters located within Plain-

tiffs boundaries from pollution, degradation, and con-

tamination.

B. The Defendants.

9%. Defendant DOF is an executive department of the

United States under 42 U.S.C. Section 7131. DOE owns

the Feed Materials Production Center and is charged with

responsibility for all operations at that site.

10. John S. Herrington is named as a Defendant in his

official capacity as the Secretary of DOE and as the suc-

cessor to Donald P. Hodel, the former Secretary of

nergy. Under 42 U.S.C. Section 7131, he is responsible

for, and has the authority necessary to administer, al!

affairs of DOE. Defendant Herrington’s office is located

at the DOF headquarters in Washington, D.C.

11. NLO is a corporation incorporated under the laws

of the State of Ohio, with its principal office located in

Cleveland, Ohio.

12. At all times pertinent to the allegations of this

Complaint, NLO has been a wholly-owned subsidiary of

NL Industries.

13. NL Industries is a corporation incorporated under

the laws of the State of New Jersey, with its principal

office located in New York City, New York and its prin-

cipal Ohio office located in Cincinnati. NL Industries does

business in several Ohio counties.

14. At all times pertinent to the allegations of this

Complaint, NL Industries has dominated and controlled

the activities of NLO. All of the actions of NLO com-

plained of herein have been controlled by and ‘or subject

8

to the control of NL Industries. NL Industries knew and/

or should have been aware of the actions of NLO com-

plained of in this Complaint.

V. FACTS OF THE CASE

15. The Feed Materials Production Center (“FMPC”)

is a large-scale production facility which supplies uranium

metal used in the fabrication of fuel cores for nuclear

reactors owned by DOE. Located at 7400 Willey Road,

only one mile from Fernald, Ohio, it includes approxi-

mately 1,050 acres of buildings or structures, installa-

tions, equipment, and grounds, mostly contained in Ham-

ilton County, Ohio.

16. The FMPC is also located near the owns of Ross,

New Baltimore, and Shendon. A population of more than

10,000 people resides within 5 miles of the FMPC, a popu-

lation of more than 60,000 lives within 6 miles, and more

than 227,000 persons live within 10 miles of the site.

17. The FMPC is situated in the Great Miami River

latural drainage from much of the site runs into

Run, a tributary of the Great Miami River.

Botn the Great Miami River and Paddy’s Run are “navi-

gable waters” and “waters of the state’, as those terms

are defined by 33 U.S.C. Section 1362(7) and Ohio Re-

vised Code Section 6111.01(H), respectively.

18. At the FMPC, Defendants have “stored”, “treated’’,

and/or “disposed” of “hazardous waste”, as those terms

are defined by 42 U.S.C. Section 6903, 40 CFR 261.3,

Ohio Revised Code Section 3734.01, Ohio Administrative

Code (“O.A.C.”) 3745-51-03 and O.A.C. 3745-50-10(A),

including barium chloride salt bath sludge, a spent eutec-

tic salt mixture, methylene chloride, perchlorethylene,

1,1,1-trichloroethane, 1,1,2-trichloroethane, benzene _iso-

mers, phthalates, and aryl sulfonamides.

19. Most of the hazardous wastes identified in para-

graph 18 above have been and/or are being stored at the

FMPC in drums or tanks. Current hazardous waste stor-

9

age facilities at the FMPC include at least one waste

storage tank area and two drum storage areas. .

20. Defendants have stored and/or disposed of hazard-

ous waste by burying it at the FMPC. For example,

Defendants have dumped barium chloride salt bath sludge

into a pit known as Waste Pit 4, and subsequently cov-

ered it with soil and other waste materials. Liquid col-

lected in Waste Pit 4 has been disposed in Waste Pit 5.

Defendants have also disposed of hazardous wastes by

allowing them to leak from drums into the environment.

21. Defendants’ treatment of hazardous waste has in-

cluded treatment of eutectic salt mixture at an installa-

tion known as the FMPC Pilot Plant Treatment Facilities.

22. As a result of Defendants’ unlawful hazardous

waste treatment, storage, and/or disposal practices, haz-

ardous constituents have contaminated the groundwater

at the FMPC.

23. Waste Pit 4, the Pilot Plant Treatment Facilities,

the waste storage tank area, the drum storage areas, and

all other land, appurtenances, structures, and improve-

ments which, since 1979, have been or are being used for

the treatment, storage, and/or disposal of hazardous waste

are “facilities” or “hazardous waste facilities” as those

terms are defined by 40 CFR 260.10, Ohio Revised Code

Section 3734.01(N), and O.A.C. 3745-50-10(A) (22).

Hereinafter they shall be referred to as the “FMPC haz-

ardous waste facilities”.

24. At all times pertinent to this lawsuit, DOE has

been the “owner” and an “operator” of the FMPC haz-

ardous waste facilities, as the terms “owner” and “oper-

ator” are defined by 40 CFR 260.10 and O.A.C. 3745-50-

10(A) (55) and (54).

25. From 1979 until sometime in 1986, NLO and NL

Industries were the “operators” of the FMPC hazardous

waste facilities, as the term “operator” is defined by 40

CFR 260.10 and 0.A.C. 3745-50-10(A) (54).

26. 42 U.S.C. Section 6961 provides that each depart-

ment, agency, and instrumentality of the executive branch

10

of the federal government is subject to and must comply

with all federal and state hazardous and solid waste re-

quirements, both procedural and substantive, in the same

manner and to the same extent as any other person sub-

ject to these requirements.

27. Defendants have stored, treated, and disposed of

hazardous waste at the FMPC in blatant disregard for

both federal and state hazardous waste requirements.

28. Large quantities of radioactive wastes have been

dumped into at least six pits at the FMPC and otherwise

stored and/or disposed at the site. Radioactive effluents

and run-off have been discharged into Paddy’s Run. Tons

of radioactive uranium have been emitted into the air by

smokestacks at the FMPC. Radioactive radon has been

emitted into the air by two silos at the FMPC containing

radium and other radioactive waste. A third silo also con-

tains radioactive waste. Radiation-contaminated debris

has been discarded or piled on the ground. These radio-

active substances have contaminated and continue to con-

taminate the soil, air, surface water, and groundwater

at and near the FMPC, including the water in several

wells owned by neighbors of the FMPC.

29. On October 2, 1980, U.S. EPA lawfully issued to

DOE National Pollutant Discharge Elimination System

Permit Number OH 0009580 (hereinafter “NPDES Per-

mit”). The NPDES Permit, attached hereto as Exhibit

Ff and incorporated fully herein by reference, may be

enforced by the State of Ohio pursuant to Ohio Revised

Code Section 6111.04, 33 U.S.C. Sections 1323 and 1342,

and 40 Code of Federal Regulations (“CFR”) Part 123.

30. The NPDES Permit authorizes the Defendants to

discharge process wastewater, stormwater runoff, and

other wastes from pipes and sewers at the FMPC into

the Great Miami River and Paddy’s Run. These wastes

are “pollutants”, “industrial wastes”, and “other wastes”,

as those terms are defined by 33 U.S.C. Section 1362(6),

Ohio Revised Code Section 6111.01(C), and Ohio Revised

Code Section 6111.01(D), respectively. The pipes are

11

“point sources”, as that term is defined by 33 U.S.C.

Section 1362(14). The NPDES Permit establishes efflu-

ent limitations restricting the amount of hexavalent chro-

mium, copper, ammonia, nitrates, suspended solids, and

other pollutants which may be lawfully discharged from

the pipes into the Great Miami River and Paddy’s Run.

31. The NPDES Permit (page 10) also establishes a

schedule requiring the Defendants to install and operate

facilities for biodenitrification and diversion of coal pile

runoff (hereinatfer the “water pollution control facili-

ties”) to remove nitrates, ammonia, iron, and suspended

solids from the effluent discharged by Defendants into the

Great Miami River and Paddy’s Run.

32. Pursuant to 33 U.S.C. Section 1323, each depart-

ment, agency, or instrumentality of the executive branch

of the federal government is subject to and must comply

with all federal and state water pollution requirements

to the same extent as any nongovernmental entity.

83. Defendants have violated the effluent limitations

of their permit and have failed to construct the water

pollution control facilities in accordance with the sched-

ule of the permit, thereby violating both federal and state

law.

34. Defendants DOE and Herrington continue to vio-

late federal and state hazardous waste and water pol-

lution laws and regulations at the FMPC. These viola-

tions will continue unless restrained by this Court and

Plaintiff has no adequate remedy at law.

35. The general allegations contained in paragraphs 1

through 34 are applicable to each count of this Com-

plaint, and are incorporated by reference into each as if

fully restated therein.

A. CERCLA Superfund Claims.

COUNT ONE

36. The radioactive substances described in paragraph

28 above constitute “hazardous substances’, as that term

is defined by 42 U.S.C. Section 9601 (14).

12

37. The hazardous wastes described in paragraphs 18

and 20 above are “hazardous substances”, as that term

is defined by 42 U.S.C. Section 9601 (14).

38. The hazardous substances described in paragraphs

18, 20, and 28 above have been “released” and are threat-

ened to be “released” into the “environment”, as those

terms are defined by 42 U.S.C. Section 9601(22) and (8)

respectively.

39. The FMPC and its buildings, structures, installa-

tions, equipment, pipes, pits, landfills, and storage con-

tainers, including but not limited to large areas of land

that have been contaminated with hazardous substances,

are “facilities” as that term is defined by 42 U.S.C.

Section 9601(9).

40. Defendant DOE is currently the “owner” and

“operator” of the FMPC, as those terms are defined by

42 U.S.C. Section 9601(20), and was the “owner” and

“operator” of the FMPC during the time the hazardous

substances described in paragraphs 18, 20, 28, 36, 37,

and 38 above were disposed at the FMPC.

41. Defendant Herrington is the current “owner”

and/or “operator” of the FMPC, as those terms are de-

fined by 42 U.S.C. Section 9601 (20).

42. Defendants NLO and NL Industries were “opera-

tors” of the FMPC, as that term is defined by 42 U.S.C.

Section 9601(20), during the time that the hazardous

substances described in paragraphs 18, 20, 28, 36, 37, and

38 were disposed at the FMPC.

43. To prevent, minimize, and mitigate the damage

to public health, welfare, and the environment which has

resulted and which may result from the releases and

threatened releases of hazardous substances from the

FMPC, Plaintiff has undertaken a continuing program

of “response” actions for the FMPC, as that term is de-

fined by 42 U.S.C. Section 9601(25). Since 1984, Plain-

tiff has incurred response costs of more than $84,000.00

to monitor, assess, and evaluate the releases and threat-

ened releases of hazardous substances from the FMPC,

13

including groundwater sampling and laboratory analysis,

site inspections and investigations, modeling, and other

activities. Plaintiff will continue to incur response costs

in order to prevent further injury to public health, wel-

fare and the environment from releases and threatened

releases at and from the FMPC. The response actions

and costs described in this paragraph are not inconsist-

ent with the National Contingency Plan.

44. Pursuant to 42 U.S.C. Section 6907(g), each de-

partment, agency, or instrumentality of the executive

branch of the federal government is subject to and must

» on slong age including liability under 42 U.S.C.

ection 9607, in the same manner and to the same extent

as any nongovernmental entity.

45. Pursuant to 42 U.S.C. Section 9607(a) and (g),

Defendants are jointly and severally liable for all costs

of removal and remedial action which have been incurred

and which will be incurred by Plaintiff, including reason-

*able attorneys fees for maintaining this action.

COUNT TWO

46. Plaintiff hereby incorporates by reference the al-

legations contained in paragraphs 36 through 45 above

as if fully set forth herein.

47. Pursuant to 42 U.S.C. Section 9607(g¢) and 9611

(h), the State of Ohio is the trustee for the “natural

resources” on, over, under, and adjacent to the FMPC,

as the term “natural resources” is defined by 42 U.S.C.

Section 9601 (16).

48. As a result of the releases of hazardous substances

from the FMPC into the natural resources held in trust

by and appertaining to the State of Ohio which are lo-

cated on, over, under, and adjacent to the FMPC, includ-

ing land, air, water, ground water, drinking water sup-

plies, and other resources, these natural resources have

been and continue to be injured, destroyed, and lost.

49. Pursuant to 42 U.S.C. Section 9607(a), Defend-

ants are jointly and severally liable to the State of Ohio

14

for damages for the injury, destruction, and loss of nat-

ural resources on, over, under, and adjacent to the

FMPC, including the reasonable costs of assessing such

injury, destruction, and loss.

B. Solid And Hazardous Waste Violations.

COUNT THREE

50. 42 U.S.C. Section 6925(a) prohibits any person

from using a facility for the treatment, storage, or dis-

posal of hazardous waste except in accordance with a

RCRA permit issued by the Administrator of U.S. EPA.

51, 42 U.S.C. Section 6925(e) and 40 CFR 270.70

(formerly numbered 40 CFR 122.23) provide that a per-

son owning or operating such a facility on November 19,

1980 may continue to operate the facility during U.S.

EPA review of his application for a RCRA permit only

if the person has submitted the permit application in

compliance with U.S. EPA regulations and has sub-

mitted hazardous waste notification(s) to the Adminis-

trator in compliance with 42 U.S.C. Section 6930. Such

operation under RCRA Section 3005(e) and 40 CFR

270.70 is known as “interim status”. 40 CFR 270.10

(formerly numbered 40 CFR 122.22) required Defend-

ants to submit to U.S. EPA Part A of the permit appli-

cation for the FMPC hazardous waste facilities by No-

vember 19, 1980.

52. Defendants have not timely submitted to U.S.

EPA a Part A permit application complying with the

requirements of 40 CFR Part 270 for the FMPC haz-

ardous waste facilities existing on November 19, 1980.

Because of Defendants’ failures to comply with 42 U.S.C.

Section 6925(e) and 40 CFR 270.70, the FMPC hazard-

ous waste facilities existing on November 19, 1980 have

not qualified for interim status under federal law.

53. Since November 19, 1980, 40 CFR 270.10/f)

(formerly numbered 40 CFR 122.22(b)) has prohibited

any person from beginning construction of land, appur-

15

tenances, structures, and improvements to be used for

the treatment, storage, or disposal of hazardous waste,

unless the person has first submitted Parts A and B of a

permit application to U.S. EPA and received a RCRA

permit.

54. Despite the prohibitions of 40 CFR 270.10(f) (40

CFR 122.22(b)), the Defendants, after November 19,

1980, constructed the Pilot Plant Treatment Facilities

and other facilities for the treatment, storage, and/or

disposal of hazardous waste at the FMPC without first

applying for and receiving a RCRA permit for such

construction.

55. Defendants continued to treat, store, and/or dis-

pose of hazardous waste at the FMPC hazardous waste

facilities which were existing on November 19, 1980 as

well as the facilities which were constructed after that

date, even though Defendants had failed to obtain a per-

mit for these activities at any of the FMPC hazardous

waste facilities. Defendants DOE and Herrington cur-

rently are continuing to treat, store, and/or dispose of

hazardous waste at these facilities.

56. Since March 19, 1979, Ohio Revised Code Sections

3734.02(E) and 3734.05(B) have prohibited persons

from operating a hazardous waste facility without first

obtaining a hazardous waste facility installation and

operation permit from the Ohio hazardous waste facility

board.

57. Since March 19, 1979, Defendants have operated

and continue to operate the FMPC hazardous waste

facilities without obtaining a hazardous waste facility

installation and operation permit.

58. Since March 19, 1979, Ohio Revised Code Section

3734.02(F) has prohibited any person from treating,

storing, or disposing of hazardous waste at any premises

other than the lawfully operated facilities listed in sub-

section (F).

59. Since March 19, 1979, Defendants have treated,

stored, and or disposed, and continue to treat, store, and

16

dispose, of hazardous waste at the FMPC hazardous

waste facilities, which are not among the lawfully oper-

ated facilities listed in Ohio Revised Code Section

3734.02(F). |

60. Defendants’ treatment, storage, and ‘or disposal of

hazardous waste at the FMPC hazardous waste facilities

and failures to obtain a permit from U.S. EPA are vio-

lations of 42 U.S.C. Section 6925(a) and 40 CFR 270.10,

for which each of Defendants is subject to injunctive

relief and a civil penalty of up to twenty-five thousand

dollars ($25,000.00) for each day of each violation pur-

suant to 42 U.S.C. Sections 6928 and 6972.

61. In a similar manner, Defendants’ operation of,

and treatment, storage, and disposai of hazardous waste

at, the FMPC hazardous waste facilities are violations of

Ohio Revised Code Sections 3734.02(E), 3734.02(F),

3734.05(B), and 3734.11, for which each of Defendants

is subject to injunctive relief pursuant to Ohio Revised

Code Section 3734.10 and is subject to a civil penalty of

up to ten thousand dollars ($10,000.00) for each day of

each violation pursuant to Ohio Revised Code Section

3734.13(C).

COUNT FOUR

62. Since November 19, 1980, 40 CFR 264.31 and 40

CFR 265.31 have required owners and operators of a

hazardous waste facility to maintain and operate the

facility in a manner that minimizes the possibility of an

unplanned release of hazardous waste or hazardous waste

constituents to the air, soil, or surface water which could

threaten human health or the environment. O.A.C. 3745-

54-31 and 0.A.C. 3745-65-31' have contained the same

requirements since April 15, 1981.

63. Since the effective dates of these rules and regu-

lations, Defendants have failed and continue to fail to

maintain and onerate the FMPC hazardous waste facili-

ties, including but not limited to drums of hazardous

1 Formerly numbered 0.A.C. 3745-55-31.

Ct a a ee oe

17

waste and Waste Pit 4, in a manner that minimizes the

unplanned release of hazardous waste and/or hazardous

waste constituents to the soil and surface water which

could threaten human health and the environment.

64. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.31, 40 CFR 265.31, O.A.C. 3745-54-31, and/

or 0.A.C. 3745-65-31, as well as Ohio Revised Code Sec-

tion 3734.11. For these violations, each Defendant is

subject to injunctive relief pursuant to 42 U.S.C. Sec-

tions 6928(a) and 6972(a) and Ohio Revised Code Sec-

tion 3734.10 and is subject to a civil penalty of up to

twenty-five thousand dollars ($25,000.00) for each day

of each violation of the federal regulations pursuant to

42 U.S.C. Section 6928(g¢) and 6972(a) and a civil

penalty of up to ten thousand dollars ($10,000.00) for

each day of each violation of the state rules pursuant to

Ohio Revised Code Section 3734.13(C).

COUNT FIVE

65. Since November 19, 1980, 40 CFR 264.56(b) and

40 CFR 265.56(b) have required the owners and oper-

ators of a hazardous waste facility, through their emer-

gency coordinator, to immediately identify the character,

exact source, amount, and areal extent of any hazardous

waste or hazardous waste constituents which have been

released from the facility. O.A.C. 3745-54-56(B) and

0.A.C. 3745-65-56(B)* have contained the same require-

ments since April 15, 1981.

66. From an unknown date until the present, Defend-

ants have failed and continue to fail to immediately

identify the character, exact source, amount, and areal

extent of hazardous waste and hazardous waste con-

stituents that have been released from the FMPC haz-

ardous waste facilities, including but not limited to

Waste Pit 4.

? Formerly numbered 0.A.C. 2745-55-56(B).

18

67. Since November 19, 1980, 40 CFR 264.56(c) and

40 CFR 265.56(c) have required the owners and oper-

ators of a hazardous waste facility, through their emer-

gency coordinator, to assess possible hazards to human

health or the environment that may result from releases

of hazardous waste or hazardous waste constituents from

the facility. O.A.C. 3745-54-56(C) and 0.A.C. 3745-65-

56(C)* have contained the same requirement since April

15, 1981.

68. From an unknown date until the present, Defend-

ants have failed and continue to fail to assess possible

hazards to human health or the environment that may

result from releases of hazardous waste or hazardous

waste constituents from the FMPC hazardous waste fa-

cilities, including but not limited to leaking drums and

Waste Pit 4.

69. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.56, 40 CFR 265.56, O.A.C. 3745-54-56, and/

or 0.A.C. 3745-65-56, as well as Ohio Revised Code Sec-

tion 3734.11. For these violations, each Defendant is sub-

ject to injunctive relief pursuant to 42 U.S.C. Sections

6928(a) and 6972(a) and Ohio Revised Code Section

3734.10 and is subject to a civil penalty of up to twenty-

five thousand dollars ($25,000.00) for each day of each

violation of the federal regulations pursuant to 42 U.S.C.

Sections 6928(g¢) and 6972(a) and a civil penalty of up

to ten thousand dollars ($10,000.00) for each day of

each violation of the state rules pursuant to Ohio Re-

vised Code Section 3734.13(C).

COUNT SIX

70. Since November 19, 1980, 40 CFR 264.56(j) and

40 CFR 265.56(j) have required the owners and operators

of a hazardous waste facility to submit to U.S. EPA

written reports within fifteen days providing the informa-

3 Formerly numbered 0.A.C. 3745-55-56(C).

19

tion about releases described in that subsection. Since |

April 15, 1981, O.A.C. 3745-54-56(j) and O.A.C. 3745-

65-56(j)* have required the same written reports to be

submitted to Ohio EPA.

71. From an unknown date until the present, De-

fendants have failed and continue to fail to submit to

U.S. EPA and Ohio EPA written reports containing the

information required by these rules and about releases

at the FMPC regulating hazardous waste facilities. These

releases include but are not limited to leakage of hazard-

ous waste from drums which have in the past been

stored at the FMPC and releases of hazardous waste from

Waste Pit 4, which continues to occur.

72. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.56(j), 40 CFR 265.56(j), O.A.C. 3745-54-

56(j), and/or O.A.C. 3745-65-56(j), as well as Ohio

Revised Code Sections 3734.05(F) and 3734.11. For

these violations, each Defendant is subject to injunctive

relief pursuant to 42 U.S.C. Sections 6928(a) and

6972(a) and Ohio Revised Code Section 3734.10 and is

subject to a civil penalty of up to twenty-five thousand

dollars ($25,000.00) for each day of each violation of the

federal regulations pursuant to 42 U.S.C. Section 6928(g)

and 6972(a) and a civil penalty of up to ten thousand

dollars ($10,000.00) for each day of each violation of the

state rules pursuant to Ohio Revised Code Section

3734.13(C).

COUNT SEVEN

73. 40 CFR Part 265, Subpart F requires that, by

November 19, 1981, the owners and operators of any

surface impoundment or landfill which is used to manage

hazardous waste must implement a groundwater moni-

toring program in compliance with 40 CFR 265, Subpart

F. 40 CFR Part 264, Subpart F requires that, by Janu-

ary 26, 1983, the owners and operators of any surface

* Formerly numbered 0.A.C. 3745-55-56(j).

20

impoundment or landfill used to treat, store, or dispose

of hazardous waste must implement a groundwater moni-

toring program in compliance with 40 CFR 264, Subpart

F. The same requirements have been mandated by O.A.C.

3745-54-90 through 99 since August 30, 1984 and have

been mandated by 0.A.C. 3745-65-90 through 94° since

November 19, 1981.

74. Waste Pit 4 at the FMPC is either a “landfill” or

a “surface impoundment” as those terms are defined by

40 CFR 260.10 and 0.A.C, 3745-50-10(A) (42) and (78).

75. Defendants have failed and continue to fail to

implement a groundwater monitoring system for Waste

Pit 4 which complies with the requirements of 40 CFR

265 Subpart F, 40 CFR 264 Subpart F, 0.A.C, 3745-65-

90 through 94, and/or O.A.C, 3745-54-90 through 99.

76. Defendants’ failure to comply with the ground-

water monitoring requirements described in this Count

of the Complaint are violations of 40 CFR 265 Subpart

F, 40 CFR 264 Subpart F, O0.A.C. 3745-65-90 through 94,

and/or 0.A.C. 3745-54-90 through 99, as well as Ohio

Revised Code Sections 3734.05(F) and 3734-4t. For

these violations, each of Defendants is subject to injunc-

tive relief pursuant to 42 U.S.C. Sections 6928(a) and

6972(a) and Ohio Revised Code 3734.10 and is subject

to a civil penalty of up to twenty-five thousand dollars

($25,000.00) for each day of each violation of the fed-

eral regulations pursuant to 42 U.S.C. Sections 6928(g)

and 6972(a) and a civil penalty of up to ten thousand

dollars ($10,000.00) for each day of each violation of the

state rules pursuant to Ohio Revised Code Section

3734.12(C).

COUNT EIGHT

77. 40 CFR 264.112 requires that the owners and

operators of a hazardous waste facility submit to U.S.

EPA, by July 13, 1981, a written closure plan for the

facility meeting the requirements of the regulation. 40

—

5 Formerly numbered O.A.C. 3745-55-90 through 94.

21

CFR 265.112 requires submission of this closure plan by

May 19, 1981. In a similar manner 0.A.C. 3745-55-12 °,

and 0.A.C. 3745-66-12 require submission of the closure

plan by April 15, 1981 and January 7, 1983, respectively.

78. Defendants failed to submit a closure plan for any

of the FMPC hazardous waste facilities until approxi-

mately July of 1984, when it submitted a closure plan

for some of these facilities. Defendants still have not

submitted a closure plan for Waste Pit 4 that complies

with the requirements of 40 CFR 264.112, 40 CFR

265.112, O.A.C. 3745-55-12, and/or O.A.C. 3745-66-12.

79. Since July 13, 1981, 40 CFR 264.113 and 40 CFR

265.113 have required the owners and operators of a

hazardous waste faciilty to t~-at, remove, or dispose of

the hazardous waste contained in the facility within 90

days after receiving the final volume of hazardous waste

at the facility. These treatment, removal and disposal

actions must be performed in accordance with an ap-

proved closure plan. All other closure activities must be

completed in accordance with an approved closure plan

within 180 days after receipt of the final volume of

hazardous wastes, or in the case of 40 CFR 265.113,

within 180 days after approval of the closure plan if

that is later. These same requirements have been man-

dated by 0.A.C. 3745-55-13" and O.A.C. 3745-66-13 since

January 7, 1983.

80. Even though Defendants deposited the final vol-

ume of hazardous wastes into Waste Pit 4 in approxi-

mately April of 1983, Defendants have not yet closed

Waste Pit 4 in accordance with an approved closure plan.

81. Since July 13, 1981, 40 CFR 264.111 and 40 CFR

265.111 have required the owners and operators of a

hazardous waste facility to close the facility in a manner

that, to the extent necessary to prevent threats to human

health and the environment, controls, minimizes, or elim-

®* Formerly numbered O.A.C. 3745-56-03.

7 Formerly numbered O.A.C. 3745-56-04.

22

inates post-closure escape of hazardous waste, hazardous

waste constituents, leachate, contaminated rainfall, or

waste decomposition products to the ground waters, sur-

face waters, or atmosphere. The same requirements have

been contained in 0.A.C. 3745-55-11° since April 15,

1981 and in O.A.C. 3745-66-11 since January 7, 1983.

82. Even though hazardous waste has not been placed

in Waste Pit 4 since approximately April of 1983, De-

fendants have not closed Waste Pit 4 in a manner that

complies with 40 CFR 264.111, 40 CFR 265.111, 0.A.C.

3745-55-11, or O.A.C. 3745-66-11.

83. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.111, 40 CFR 264.112, 40 CFR 264.113, 40

CFR 265.111, 40 CFR 265.112, 40 CFR 265.113, 0.A.C.

3745-55-11, O.A.C. 3745-55-12, O.A.C. 3745-55-13, and/or

O0.A.C. 3745-66-11, O.A.C. 3745-66-12, and O.A.C. 3745-

66-13, as well as Ohio Revised Code Sections 3734.05 (F)

and 3734.11. For these violations, each Defendant is sub-

ject to injunctive relief pursuant to 42 U.S.C. Sections

6928(a) and 6972(a) and Ohio Revised Code Section

3734.10 and is subject to a civil penalty of up to twenty-

five thousand dollars ($25,000.00) for each day of each

violation of the federal regulations pursuant to 42 U.S.C.

Sections 6928(g) and 6972(a) and a civil penalty of up

to ten thousand dollars ($10,000.00) for each day of each

violation of the state rules pursuant to Ohio Revised

Code Section 3734.13(C).

COUNT NINE

84. Since July 13, 1981, 40 CFR 264.173 has pro-

hibited the owners and operators of a hazardous waste

facility from handling and storing a container of haz-

ardous waste in a manner which may rupture the con-

tainer or cause it to leak. This conduct has been pro-

hibited by 40 CFR 265.173 since November 19, 1980,

* Formerly numbered 0.A.C. 3745-56-02.

23

by 0.A.C. 3745-55-73° since April 15, 1981 and by

0.A.C. 3745-66-73 since January 7, 1983.

85. During an unknown period of time ending in ap-

proximately April of 1984, Defendants handled and

stored containers of hazardous waste in a manner that

caused them to leak.

86. Since July 13, 1981, 40 CFR 264.171 has required

the owners and operators of a hazardous waste facility to

transfer hazardous waste from a leaking container or a

container not in good condition to a container which is in

good condition or to manage the waste in some other way

that complies with the hazardous waste facility standards.

This same requirement has been mandated by 40 CFR

265.171 since November 19, 1980, by O.A.C. 3745-55-71

since April 15, 1981, and by 0O.A.C. 3745-66-71 since

January 7, 1983.

87. During an unknown time period ending in approxi-

mately April of 1984, Defendants failed to transfer haz-

ardous waste from containers at the FMPC which were

leaking or not in good condition to containers which were

good condition, or to manage the waste in some other

way that complied with the hazardous waste facility

stan§ards.

88. Since July 13, 1981, 40 CFR 264.174 has required

owners and operators of a hazardous waste facility to at

least weekly inspect container storage areas, looking for

leaking and deteriorated containers. This same require-

ment has been mandated by 40 CFR 265.174 since Novem-

ber 19, 1980, by O.A.C. 3745-55-74 "' since April 15, 1981,

and by 0.A.C. 3745-66-74 since January 7, 1983.

89. During an unknown period of time ending in

approximately April of 1984, Defendants failed to at least

weekly inspect the container storage area at the FMPC.

® Formerly numbered O.A.C. 3745-56-53.

10 Formerly numbered O.A.C. 3745-56-51.

1! Formerly numbered O.A.C. 3745-56-54.

24

90. Defendants’ failures to perform the duties de

scribed in this Count of the Complaint are violations of

40 CFR 264.171, 40 CFR 264.173, 40 CFR 264.174,

40 CFR 265.171, 40 CFR 265.173, 40 CFR 265.174,

0.A.C. 3745-55-11, O.A.C. 3745-55-78, O.A.C. 3745-55-74,

and/or 0.A.C. 3745-66-71, O.A.C. 3745-66-73, and O.A.C.

3745-66-74, as well as Ohio Revised Code Section 3734-11.

For these violations, each Defendant is subject to injunc-

tive relief pursuant to 42 U.S.C. Sections 6928(a) and

6972(a) and Ohio Revised Code Section 3734.10 and is

subject toe a civil penalty of up to twenty-five thousand

dollars ($25,000.00) for each day of each violation of the

federal regulations pursuant to 42 U.S.C. Sections 6928

(g) and 6972(a) and a civil penalty of up to ten thousand

dollars ($10,000.00) for each day of each violation of

the state rules pursuant to Ohio Revised Code Section

3734.13 (C).

COUNT TEN

91. Since November 19, 1980, 40 CFR 264.15(b) and

40 CFR 265.15(b) have required the owners and oper-

ators of a hazardous waste facility to develop and follow

a written inspection schedule to prevent, detect, and re-

spond to environmental and human health hazards and to

keep this schedule at the facility. O.A.C. 3745-54-15 (B)

and 0.A.C. 3745-65-15(B)'* have contained the same re-

quirements since April 15, 1981.

92. From the effective dates of these rules and regula-

tions until approximately July of 1984, Defendants failed

to develop and follow a written inspection schedule and

to keep this schedule at the FMPC.

93. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.15(b), 40 CFR 265.15(b), O.A.C. 3745-54-

15(B), and/or O.A.C. 3745-65-15(B), as well as Ohio

Revised Code Sections 3734.05(F) and 3734.11. For

these violations, each Defendant is subject to injunctive

12 Formerly numbered O0.A.C. 3745-55-15(B).

25

relief pursuant to 42 U.S.C. Sections 6928(a) and 6972

(a) and Ohio Revised Code Section 3734.10 and is sub-

ject to a civil penalty of up to twenty-five thousand dol-

lars ($25,000.00) for each day of each violation of the

federal regulations pursuant to 42 U.S.C. Sections 6928

(g) and 6972(a) and a civil penalty of up to ten thousand

dollars ($10,000.00) for each day of each violation of the

state rules pursuant to Ohio Revised Code Section

3734.13 (C). :

COUNT ELEVEN

94. Since November 19, 1980, 40 CFR 264.35 and 40

CFR 265.35 have required the owners and operators of

a hazardous waste facility to maintain aisle space at the

facility adequate to allow the unobstructed movement of

personnel, fire protection equipment, spill control equip-

ment, and decontamination equipment to any area of

facility operation during an emergency. 0.A.C. 3745-54-

35 and O.A.C. 3745-65-35 ™ have contained the same re-

quirements since April 15, 1981.

95. For an unknown period of time ending in approxi-

mately April of 1984, Defendants failed to maintain at

the FMPC hazardous waste facilities the aisle space re-

quired by these rules and regulations.

96. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.35, 40 CFR 265.35, 0.A.C. 3745-54-35, and/

or 0.A.C. 3745-65-35, as well as Ohio Revised Code Sec-

tion 3734.11. For these violations, each Defendant is sub-

ject to injunctive relief pursuant to 42 U.S.C. Sections

6928(a) and 6972(a) and Ohio Revised Code Section

3734.10 and is subject to a civil penalty of up to twenty-

five thousand dollars ($25,000.00) for each day of each

violation of the federal regulations pursuant to 42 U.S.C.

Sections 6928(g) and 6972(a) and a civil penalty of up

to ten thousand dollars ($10,000.00) for each day of each

violation of the state rules pursuant to Ohio Revised Code

Section 3734.13(C).

13 Formerly numbered O0.A.C. 3745-55-35.

26

COUNT TWELVE

97. Since November 19, 1980, 40 CFR 264.51(a) and

40 CFR 265.51(a) have required the owners and oper-

ators of a hazardous waste facility to have a contingency

plan for the facility designed to minimize hazards to hu-

man health or the environment from fires, explosions, or

releases of hazardous waste to the air, soil, or surface

water. O.A.C. 3745-54-51(A) and O.A.C. 8745-65-51

(A)" have contained the same requirements since April

15, 1981. (“Contingency plan” is defined by 40 CFR

260.10 and O0.A.C. 3745-50-10(A) (13) ).

98. From the effective dates of these rules and regu-

lations until approximately July of 1984, Defendants did

not have a contingency plan for the FMPC hazardous

waste facilities.

99. Defendants’ failures to perform the duties de

scribed in this Count of the Complaint are violations of

40 CFR 264.51(a), 40 CFR 265.51(a), O.A.C. 3745-54-

51(A), and/or O.A.C. 3745-65-51(A), as well as Ohio

Revised Code Sections 3734.05(F) and 3734.11. For these

violations, each Defendant is subject to injunctive relief

pursuant to 42 U.S.C. Sections 6928(a) and 6972(a) and

Ohio Revised Code Section 3734.10 and is subject to a

civil penalty of up to twenty-five thousand dollars

($25,000.00) for each day of each violation of the fed-

eral regulations pursuant to 42 U.S.C. Sections 6928(g)

and 6972(a) and a civil penalty of up to ten thousand

dollars ($10,000.00) for each day of each violation of

the state rules pursuant to Ohio Revised Code Section

3734.13(C).

COUNT THIRTEEN

100. Since November 19, 1980, 40 CFR 264.73 and

40 CFR 265.73 have required the owners and operators

of a hazardous waste facility to keep a written operating

record at the facility containing the information about

hazardous waste required by those regulations. 0O.A.C.

14 Formerly numbered 0.A.C. 3745-55-51(A).

27

8745-54-73 and O.A.C. 3745-65-73 '* have contained the

same requirements since April 15, 1981.

101. From the effective dates of these rules and regu-

lations until a date unknown to Plaintiff, Defendants

failed to keep at the FMPC hazardous waste facilities an

operating record containing the information required by

these rules and regulations.

102. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

40 CFR 264.73, 40 CFR 265.73, 0.A.C. 3745-54-73, and/

or 0.A.C. 3745-65-73, as well as Ohio Revised Code Sec-

tions 3745-05(F) and 3734.11. For these violations, each

Defendant is subject to injunctive relief pursuant to 42

U.S.C. Sections 6928(a) and 6972(a) and Ohio Revised

Code Section 3734.10 and is subject to a civil penalty

of up to twenty-five thousand dollars ($25,000.00) for

each day of each violation of the federal regulation pur-

suant to 42 U.S.C. Sections 6928(g) and 6972(a) and a

civil penalty of up to ten thousand dollars ($10,000.00)

for each day of each violation of the state rules pursuant

to Ohio Revised Code Section 3734.13 (C).

COUNT FOURTEEN

103. Since November 19, 1980, 40 CFR 264.16/a),

(b), and (c) have required the owners and operators of

a hazardous waste facility to implement a program to

teach personnel at the facility to perform their hazardous

waste management duties and to respond to emergen-

cies. O.A.C. 3745-54-16(A), (B), and (C) and O.A.C.

8745-65-16(A), (B), and (C)"* have contained the same

requirements since April 15, 1981.

104. Since November 19, 1980, 40 CFR 264.16(d)

and (e) have required the owners and operators of a

hazardous waste facility to maintain and keep personnel

job description and training documents and records at

15 Formerly numbered 0.A.C. 3745-55-73.

16 Formerly numbered O.A.C. 3745-55-16.

28

the facility. O.A.C. 8745-54-16(D) and (E) and O.A.C.

3745-65-16(D) and (E) have contained the same require-

ments since April 15, 1981.

105. From the effective dates of these rules and regu-

lations until a date unknown to Plaintiff, Defendants

failed to implement the training program and maintain

the records for the FMPC hazardous waste facilities re

quired by these rules and regulations.

106. Defendants’ failures to perform the duties de

scribed in this Count of the Complaint are violations of

40 CFR 264.16, 40 CFR 265.16, 0.A.C. 3745-54-16, and/

or 0.A.C. 3745-65-16, as well as Ohio Revised Code Sec-

tions 3734.05(F) and 3734.11. For these violations, each

Defendant is subject to injunctive relief pursuant to 42

U.S.C. Sections 6928(a) and 6972(a) and Ohio Revised

Code Section 3734.10 and is subject to a civil penalty of

up to twenty-five thousand dollars ($25,000.00) for each

day of each violation of the federal regulations pursuant

to 42 U.S.C. Sections 6928(g) and 6972(a) and a civil

penalty of up to ten thousand dollars ($10,000.00) for

each day of each violation of the state rules pursuant to

Ohio Revised Code Section 3734.13(C).

COUNT FIFTEEN

107. Since November 19, 1980, 40 CFR 264.13 and 40

CFR 265.13 have required the owners and operators of a

hazardous waste facility to develop and follow a written

waste analysis plan and keep the plan at the facility.

0.A.C. 3745-54-13(B) and 0.A.C. 3745-65-13(B) have

contained the same requirement since April 15, 1981.

108. From the effective dates of these rules and regu-

lations until approximately July of 1984, Defendants

failed to develop and follow a written waste analysis

plan and failed to keep such a plan at the FMPC hazard-

ous waste facilities.

109. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint are violations of

17 Formerly numbered O.A.C, 3745-55-13(B).

——

29

40 CFR 264.13(B), 40 CFR 265.13(B), 0.A.C, 3745-54-

13(B), and/or O.A.C. 3745-65-13(B), as well as Ohio

Revised Code Sections 3734.05(F) and 3734.11. For

these violations, each Defendant is subject to injunctive

relief pursuant to 42 U.S.C. Sections 6928(a) and

6972(a) and Ohio Revised Code Section 3734.10 and is

subject to a civil penalty of up to twenty-five thousand

dollars ($25,00.00) for each day of each violation of the

federal regulations pursuant to 42 U.S.C. Sections

6928(g¢) and 6972(a) and a civil penalty of up to ten

thousand dollars ($10,000.00) for each day of each vio-

lation of the state rules pursuant to Ohio Revised Code

Section 3734.13(C).

COUNT SIXTEEN

110. Pursuant to 42 U.S.C. Section 6964, DOE and

Herrington are required to insure that any solid waste

management and disposal on their property, including

waste management and disposal by its contractors, com-

plies with the guidelines and purposes of RCRA.

111. Since assuming jurisdiction over the FMPC

around 1978, DOE and Herrington have failed and con-

tinue to fail to insure that solid waste management and

disposal at the FMPC, including the solid waste manage-

ment and disposal by their contractors, complies with the

ruidelines and purposes of RCRA.

112. The failures of these Defendants to perform the

duties described in this Count are violations of 42 U.S.C.

Section 6964, for which these Defendants are subject to

injunctive relief pursuant to 42 U.S.C. Section 6928(a)

and 6972(a). In the alternative, compliance with 42

U.S.C. Section 6964 is a nondiscretionary duty owed to

Plaintiff by DOE and Herrington, and failure to per-

form this duty is subject to mandamus pursuant to 28

U.S.C. Section 1361.

30

C. Water Pollution Violations.

COUNT SEVENTEEN

113. Defendants have discharged pollutants from the

point sources at the FMPC in excess of the effluent limi-

tations in the NPDES Permit. Defendants DOE and

Herrington continue to discharge pollutants in excess of

these limitations.

114. The effluent limitations violated by Defendants

and the dates of violations include but are not limited to

the following:

hexavalent chromium (outfalls 001B & 001C)

daily maximum violations—

October 30, 1983

March 23, 1984

March 26, 1984

April 3, 1984

May 17, 1984

May 24, 1984

June 1, 1984

December 19, 1984

July 10, 1985

August 22, 1985

October 24, 1985

November 12, 1985

daily average violations—

October, 1983

December, 1983

March, 1984

May, 1984

June, 1984

July, 1984

October, 1984

December, 1984

January, 1985

February, 1985

31

July, 1985

August, 1985

October, 1985

November, 1985

total chromium (outfalls 001B & 001C)

daily maximum violation—

August 2, 1984

daily average violation—

August, 1984

copper (outfalls 001B & 001C)

daily maximum violations—

March 23, 1984

July 9, 1984

November 20, 1984

November 12, 1985

daily average violations—

February, 1984

March, 1984

April, 1984

May, 1984

July, 1984

November, 1984

December, 1984

November, 1985

iron (outfalls 001B & 001C)

daily maximum violations—

October 24, 1985

December 3, 1985

daily average violations—

April, 1984

October, 1985

December, 1985

ammonia (outfall 001)

daily maximum violations—

July 6, 1984

July 9, 1984

July 17, 1984

July 25, 1984

August 2, 1984

August 9, 1984

August 13, 1984

August 21, 1984

August 30, 1984

oil and grease

daily maximum violations—

December 22, 1984 (outfal] 002)

February 11, 1985 (outfall 001)

suspended solids (outfall 002)

daily maximum violations—

May 15, 1985

November 11, 1985

daily average violation—

October, 1985

suspended solids (outfalls 001B & 001C)

daily maximum violations—

October 22, 1983

April! 27, 1984

January 23, 1985

March 18, 1985

November 12, 1985

daily average violations—

April, 1984

July, 1984

November, 1984

January, 1985

ee a

March, 1985

July, 1985

November, 1985

115. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311(a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. Sec-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.07 and is subject to a civil penalty of up to ten

thousand dollars ($10,000.00) per day of each violation

pursuant to 33 U.S.C. Sections 1319(d) and 1365(a) and

Ohio Revised Code Section 6111.09.

COUNT EIGHTEEN

116. Defendants have violated the terms of the

NPDES Permit by their failure to submit preliminary

design plans for the water pollution control facilities by

June 1, 1982.

117. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311(a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. Sec-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.07 and is subiect to a civil penalty of up to ten

thousand dollars ($10,000.00) per day of each violation

pursuant to 33 U.S.C. Sections 1319(d) and 1365/a) and

Ohio Revised Code Section 6111.09.

COUNT NINETEEN

118. Defendants have violated the terms of the

NPDES Permit by their failure to submit final plans

and specifications for the water pollution control facili-

ties by October 1, 1982.

119. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

34

tions of 33 U.S.C. Section 1311(a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C.

Sections 1319(b) and 1365(a) and Ohio Revised Code

Section 6111.07 and is subject to a civil penalty of up to

ten thousand dollars ($10,000.00) per day of each viola-

tion pursuant to 33 U.S.C. Sections 1319/d) and

1365(a) and Ohio Revised Code Section 6111.09.

COUNT TWENTY

120. Defendants have violated the terms of the

NPDES Permit by their failure to begin construction of

the water pollution control facilities by January 1, 1983.

121. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311(a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. See-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.07 and is subject to a civil penalty of up to

ten thousand dollars ($10,000.00) per day of each vio-

lation pursuant to 33 U.S.C. Seetions 1319/d) and

1365(a) and Ohio Revised Code Section 6111.09.

COUNT TWENTY-ONE

122. Defendants have violated the terms of the

NPDES Permit by their failure to submit a progress

report to the Ohio Environmental Protection Agency

(“Ohio EPA”) by September 30, 1983 describing their

progress in designing and installing the water pollution

control facilities.

123. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311/a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. See-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.09 and is subject to a civil penalty of up to ten

_— ek ee oe

35

thousand dollars ($10,000.00) per day of each violation

pursuant to 33 U.S.C. Sections 1319/d) and 1365(a)

and Ohio Revised Code Section 6111.09.

COUNT TWENTY-TWO

124. Defendants have violated and continue to violate

the terms of the NPDES Permit by their failure to com-

plete construction of the water pollution control facilities

by April 1, 1984.

125. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311/a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. See-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.07 and is subject to a civil penalty of up to ten

thousand dollars ($10,000.00) per day of each violation

pursuant to 33 U.S.C. Sections 1319(d) and 1365/a) and

Ohio Revised Code Section 6111.09.

COUNT TWENTY-THREE

126. Defendants have violated and continue to violate

the terms of the NPDES Permit by their failure to have

the water pollution contro) facilities operational by June

30, 1984.

127. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311/a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. See-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.07 and is subject to a civil penalty of up to ten

thousand dollars ($10,000.00) per day of each violation

pursuant to 33 U.S.C. Sections 1319/d) and 1365(a) and

Ohio Revised Code Section 6111.09.

36

COUNT TWENTY-FOUR

128. Defendants have violated the terms of the

NPDES Permit by their failure to submit to U.S. EPA

or the Ohio Environmental Protection Agency (“Ohio

EPA”) written notice of noncompliance within fourteen

(14) days after their failures to perform the duties de-

scribed in Counts Twenty through Twenty-Five above.

129. Defendants’ failures to perform the duties de-

scribed in this Count of the Complaint constitute viola-

tions of 33 U.S.C. Section 1311(a) and Ohio Revised

Code Section 6111.07(A), for which each of Defendants

is subject to injunctive relief pursuant to 33 U.S.C. Sec-

tions 1319(b) and 1365(a) and Ohio Revised Code Sec-

tion 6111.07 and is subject to a civil penalty of up to

ten thousand dollars ($10,000.00) per day of each viola-

tion pursuant to 33 U.S.C. Sections 1319(d) and 1365(a)

and Ohio Revised Code Section 6111.09.

COUNT TWENTY-FIVE

130. During a time period presently unknown to

Plaintiff, Defendants have placed or caused to be placed,

and continue to place or cause to be placed, industrial

wastes and/or other wastes, as defined in Revised Code

Section 6111.01(C) and (D), in locations where such

wastes have caused pollution of the “waters of the

State”, as defined in Ohio Revised Code Section

6111.01(H), despite the fact that Defendants have no

permit to do so. This pollution includes but is not lim-

ited to the contamination of groundwater by hazardous

constituents, chemical pollutants, and nitrates from the

FMPC.

131. The acts described in this Count of the Com-

plaint constitute violations of Revised Code Sections

6111.04 and 6111.07, for which each Defendant is sub-

ject to injunctive relief pursuant to Ohio Revised Code

Section 6111.07 and is subject to a civil penalty of up to

ten thousand dollars ($10,000.00) per day of each viola-

tion pursuant to Revised Code Section 6111.09.

. a oe’

37

COUNT TWENTY-SIX

132. O.A.C. 3745-31-02 prohibits a person from caus-

ing, permitting, or allowing the installation or modifica-

tion of a “disposal system”, as that term is defined by

Ohio Revised Code Section 6111.01(G), without first ob-

taining a permit to install from the Director of Environ-

mental Protection.

133. Defendants have begun the installation and/or

modification of a disposal system at the FMPC without

first obtaining a permit to install from the Director.

DOE and Herrington continue this installation and/or

modification without a permit to install.

134. The conduct of the Defendants described in this

Count of the Complaint constitutes violations of O.A.C.

3745-31-02 and Ohio Revised Code Section 6111.07(A),

for which each Defendant is subject to injunctive relief

pursuant to Ohio Revised Code Section 6111.07 and is

subject to a civil penalty of up to ten thousand dollars

($10,000.00) per day of each violation pursuant to Ohio

Revised Code Section 6111.09.

D. Violations of Executive Order 12088

COUNT TWENTY-SEVEN

135. Plaintiff hereby incorporates by reference the

allegations contained in paragraphs 36 through 134

above as if fully set forth herein.

136. Executive Order 12088, reprinted at 42 U.S.C.A.

Section 4321, requires each executive agency and each

chief administrative officer of an executive agency to en-

sure that all necessary actions are taken for the preven-

tion, control, and abatement of environmental pollution

with respect to federal facilities and activities under con-

trol of the agency. Each agency and chief administrative

officer is responsible for compliance with all applicable

pollution control standards, including the Federal Water

Pollution Control Act, 33 U.S.C. Sections 1251 et seq.,

the Solid Waste Disposal Act, 42 U.S.C. Sections 6901

38

et seq., and all other substantive, procedural, and other

requirements that would apply to a private person.

137. Section 1-2 of Executive Order 12088 requires

executive agencies and chief administrative officers to

cooperate with state agencies in the prevention, control,

and abatement of environmental pollution. This section

also requires agencies and chief administrative officers

to consult with state agencies concerning the best tech-

niques and methods available for the prevention, control,

and abatement of environmental pollution.

138. Section 1-5 of Executive Order 12088 requires

each executive agency and chief administrative officer to

ensure that sufficient funds for compliance with appli-

cable pollution control standards are requested in the

agency budget.

139. Section 1-6 of Executive Order 12088 requires

that, whenever a state agency notifies an executive

agency that it is in violation of an applicable pollution

control standard, the executive agency shall consult with

the notifying agency and provide for its approval a plan

and implementation schedule to achieve and maintain

compliance as soon as practicable.

140. The conduct of Defendants DOE and Herrington

described in this Complaint constitutes violations of “ap-

plicable pollution control standards”, as that term is de-

fined in Executive Order 12088. Defendants DOE and

Herrington have failed and continue to fail to ensure the

compliance of the FMPC with all applicable pollution

control standards and have failed and continue to fail to

ensure that all necessary actions are taken at the FMPC

for the prevention, control, and abatement of environ-

mental pollution.

141. With some exceptions, Defendants DOE and Her-

rington have failed and continued to fail to cooperate

with the Ohio Environmental Protection Agency (“Ohio

EPA”) in the prevention, control, and abatement of en-

vironmental pollution and to consult with Ohio EPA

concerning the best techniques and methods available for

ee et

ae

89

the prevention, control, and abatement of environmental

pollution.

142. Defendants DOE and Herrington have failed to

ensure that sufficient funds for compliance with appli-

cable pollution control standards are requested in the

DOE budgets.

143. After being notified by Ohio EPA that it was in

violation of applicable pollution control standards, De-

fendants DOE and Herrington have failed and continue

to fail to promptly consult with Ohio EPA and/or to

provide for its approval a plan and implementation

schedule to achieve and maintain compliance with ap-

plicable pollution control standards as soon as practicable.

144. The conduct of Defendants described in this count

of the Complaint constitutes violations of Executive Or-

der 12088, for which Defendants are subject to injunc-

tive and declaratory relief. Plaintiff has no remedy at

law for these violations.

145. The actions and failures of Defendants to act

described in this count of the Complaint are “agency ac-

tions”, as defined by 5 U.S.C. Section 551(13), which

adversely affect and aggrieve and inflict legal wrong on

Plaintiff. These agency actions are reviewable pursuant

to 5 U.S.C. Sections 702 and/or 704 and are subject to

declaratory and injunctive relief pursuant to 5 U.S.C.

Sections 703 and/or 706.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that

this Court:

A. Pursuant to 42 U.S.C. Section 9607, order Defend-

ants to recompense Plaintiff for response costs which

have been incurred and, which will be incurred by Plain-

tiff to address releases and threatened releases of hazard-

ous substances at and from the FMPC;

B. Issue a declaratory judgment pursuant to 28 U.S.C.

Section 2201 declaring that Defendants are jointly and

40

severally liable for all response costs not inconsistent with

the National Contingency Plan incurred by the State to

address the releases and threatened releases at and from

the FMPC;

C. Pursuant to 42 U.S.C. Section 9607, order Defend-

ants to pay damages to the State of Ohio for the injury

to, destruction of, and loss of its natural resources, result-

ing from releases of hazardous substances at and from

the FMPC, including the reasonable costs of assessing

such injury, destruction, or loss;

D. Issue a declaratory judgment pursuant to 28 U.S.C.

Section 2201 declaring that the actions and failures of

Defendants described in Counts Three through Sixteen

above are violations of RCRA, Ohio Revised Code Chapter

3734, and the federal and state rules and regulations

promulgated pursuant to these statutes;

E. Issue an injunction pursuant to 42 U.S.C. Sections

6928(a) and 6972(a) and Ohio Revised Code Section

3734.10 prohibiting Defendants from violating, and order-

ing Defendants to comply with, RCRA, Ohio Revised Code

Chapter 3734, and the rules and regulations listed in

Counts Three through Sixteen above:

F. Issue an injunction pursuant to 42 U.S.C. Sections

6928(a) and 6972(a) and Ohio Revised Code Section

3734.10 prohibiting Defendants from treating, storing,

and disposing of hazardous waste unless they have re-

ceived a Part B Permit from U.S. EPA and a hazardous

waste facility installation and operation permit from the

Ohio hazardous waste facility board authorizing such

treatment, storage, or disposal ;

G. Issue a mandatory injunction pursuant to 42 U.S.C.

Sections 6928(a) and 6972(a) and Ohio Revised Code

Section 3734.10 ordering Defendants to

(1) analyze the soil, surface water, and ground

water at the FMPC and at certain locations out-

side of the FMPC for hazardous waste and haz-

ardous waste constituents, in such a manner and

at such locations as approved in writing by the

Ohio EPA;

wal

ee ee ene

ao Oh ne a,

41

(2) formulate, and submit to Ohio EPA for ap-

proval, plans for the removal, treatment, and/

or disposal of all hazardous waste at the FMPC

and soil, surface water, and ground water at or

outside the FMPC that has been contaminated

with hazardous waste and hazardous waste con-

stituents from the FMPC; and

(3) remove, treat and/or dispose of the hazardous

waste and contaminated soil, surface water, and

ground water in accordance with the plan ap-

proved by Ohio EPA;

H. Order each of Defendants, pursuant to 42 U.S.C.

Sections 6928(g) and 6972(a), to pay a civil penalty of

twenty-five thousand dollars ($25,000.00) for each day

of each violation of RCRA and the federal regulations

promulgated thereunder, and order each of Defendants,

pursuant to Ohio Revised Code Section 3734.13(C), to

pay into the Ohio hazardous waste facility management

special account a civil penalty of ten thousand dollars

($10,000.00) for each day of each violation of Ohio Re

vised Code Chapter 3734 and the state rules promulgated

thereunder;

I. Issue an injunction pursuant to 42 U.S.C. Section

6928(a) and 6972(a) prohibiting Defendants DOE and

Herrington from violating, and ordering these Defend-

~ ants to comply with, 42 U.S.C. Section 6964; in the alter-

native, issue a writ of mandamus requiring these De-

fendants to comply with 42 U.S.C. Section 6964;

J. Issue a declaratory judgment pursuant to 28 U.S.C.

Section 2201 declaring that the actions and failures of

Defendants described in Counts Seventeen through

Twenty-Six above are violations of the CWA, Ohio Re

vised Code Chapter 6111, and 0.A.C, 3745-31-02 ;

K. Issue an injunction pursuant to 33 U.S.C. Sections

1319(b) and 1365(a) and Ohio Revised Code Section

6111.07 prohibiting Defendants from violating, and order-

ing Defendants to comply with, the CWA, Ohio Revised

Code Chapter 6111, and 0.A.C. 3745-31-02 ;

42

L. Order each of Defendants, pursuant to 33 U.S.C.

Section 1319(d) and 1365(a), to pay a civil penalty of

ten thousand dollars ($10,000.00) per day of each viola-

tion of the CWA, and order each of Defendants, pursuant

to Ohio Revised Code Section 6111.09, to pay into the

treasury a civil penalty for each violation of Ohio Revised

Code Chapter 6111 and O.A.C. 3745-31-02 in the amount

of ten thousand doilars ($10,000.00) per day of each

violation ;

M. Issue a declaratory judgment pursuant to 28 U.S.C.

Section 2201 and/or 5 U.S.C. Section 703 declaring that

the actions of Defendants DOE and Herrington described

in this Complaint are violations of Executive Order 12088

and issue an injunction prohibiting these Defendants from

violating Executive Order 12088;

N. Pursuant to Executive Order 12088 unten 5

U.S.C. Section 706, compel Defendants DOE and Herring-

ton to perform the duties required by that Executive

Order, including but not limited to: (1) complying with

federal and state hazardous waste and water pollution

laws and regulations; (2) taking all actions necessary

to abate, control, and prevent environmental pollution at

the FMPC; (3) cooperating and consulting with Ohio

EPA in the abatement, control, and prevention of en-

vironmental pollution; (4) ensuring that sufficienc funds

for compliance with applicable pollution control standards

are requested, and (5) submitting a plan and implemen-

tation schedule for compliance to Ohio EPA for its ap-

proval; in the alternative, issue a writ of mandamus pur-

suant to 28 U.S.C. Section 1361 compelling these duties;

O. Award Plaintiff its costs, disbursements, and rea-

sonable attorneys fees and expert witness fees;

P. Retain jurisdiction of this suit for the purpose of

making any order or decree which it may deem necessary

at any time to carry out its judgment; and

Q. Grant such other relief as it may deem necessary

and just.

43

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

ATTORNEY GENERAL OF OHIO

By: /s/ Jack A. Van Kley

JACK A. VAN KLEY

Assistant Attorney General

Environmental Enforcement

Section

30 East Broad Street

Columbus, OH 43215

(614) 466-2766

Trial Attorney

MoNnIcA L. FRIES

Assistant Attorney General

Of Counse!

{Exhibits to Complaint not reproduced |

i

44

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil No. C-1-86-0217

Judge Spiegel

STATE OF OHIO, PLAINTIFF

Vv.

UNITED STATES DEPARTMENT OF ENERGY, ET AL.,

DEFENDANTS

ANSWER OF FEDERAL DEFENDANTS

[Filed Apr. 29, 1988]

1. The averments of Paragraph 1 of the Complaint

state only legal conclusions as to which no answer is

required.

2. The averments of Paragraph 2 of the Complaint

state only legal conclusions as to which no answer is

required.

3. Answering the averments of Paragraph 3 of the

Complaint, U.S. Department of Energy (“DOE”) and

Secretary of Energy John S. Herrington (“Federal De-

fendants”), admit that the Secretary of Energy received

a copy of Exhibit A to the Complaint more than sixty

days prior to March 11, 1986, and a copy of Exhibit B

to the Complaint prior to that date. Federal Defendants

are without knowledge or information sufficient to form

a belief as to the truth or falsity of the averments of

Paragraph 3 concerning the EPA Administrator, NLO

or NL Industries. To the extent that the averments of

Paragraph 3 merely characterize or summarize Exhibits

A and B, no answer is required since those documents

a

Oe te ee Oe _ =

45

are the best evidence of their respective contents. Except

as otherwise responded to herein, the averments of Para-

graph 3 state only legal conclusions as to which no an-

swer is required.

4. Answering the averments of Paragraph 4 of the

Complaint, Federal Defendants admit that the Secretary

of Energy received a copy of Exhibit C more than sixty

days prior to March 11, 1986. Federal Defendants are

without knowledge or information sufficient to form a

belief as to the truth or falsity of the averments of Para-

graph 4 concerning the EPA Administrator, NLO or

NL Industries. To the extent that the averments of Para-

graph 4 merely characterize or summarize Exhibit C, no

answer is required since that document is the best evi-

dence of its contents. Except as otherwise responded to

herein, the averments of Paragraph 4 state only legal

conclusions as to which no answer is required.

5. Answering the averments of Paragraph 5 of the

Complaint, Federal Defendants admit that the Secretary

of Energy received a copy of Exhibit D more than sixty

days prior to March 11, 1986. Federal Defendants are

without knowledge or information sufficient to form a be-

lief as to the truth or falsity of the averments of Para-

graph 5 concerning the EPA Administrator, NLO or NL

Industries. Except as responded to herein the averments

of Paragraph 5 merely characterize or summarize Exhibit

D and, accordingly, no answer is required since that docu-

ment is the best evidence of its contents.

6. The averments of Paragraph 6 of the Complaint

state only legal conclusions as to which no answer is

required.

7. Answering the averments of Paragraph 7 of the

Complaint, Federal Defendants admit that the State of

Ohio is the Plaintiff in this action. Federal Defendants

aver that DOE is the natural resources trustee for all

property under its control. Except as specifically admitted

herein the averments of Paragraph 7 state only legal

conclusions as to which no answer is required.

46

8. Answering the averments of Paragraph 8 of the

Complaint, Federal Defendants admit that Anthony J.

Celebreeze, Jr., is the Attorney General of Ohio and,

by virtue of that office, is the Chief legal officer of the

State of Ohio. Federal Defendants are without informa-

tion sufficient to form a belief as to the truth or falsity

of the averment of Paragraph 8 that this action is in-

stituted at the request of the Director of Environmental

Protection, State of Ohio. Except as responded to herein,

the averments of Paragraph 8 state only legal conclusions

as to which no answer is required.

9. Answering the averments of Paragraph 9 of the

Complaint, Federal Defendants admit that Defendant

DOE is an executive department of the United States of

America, and that Defendant DOE has specific statutory

responsibility over the Feed Materials Production Center

(hereinafter the “FMPC”) on behalf of the United States

of America, which is the owner of the facility. Except

as specifically admitted herein, the averments of Para-

graph 9 state only legal conclusions as to which no answer

is required.

10. Federal Defendants admit that the averments of

the first and third sentences of Paragraph 10 of the Com-

plaint. The averments of the second sentence of Para-

graph 10 state only legal conclusions as to which no

answer is required.

11. Federal Defendants are without knowledge or in-

formation sufficient to form a belief as to the truth or

falsity of the averments of Paragraph 11 of the Com-

plaint.

12. Federal Defendants are without knowledge or in-

formation sufficient to form a belief as to the truth or

falsity of the averments of Paragraph 12 of the Com-

plaint.

13. Federal Defendants are without knowledge or in-

formation sufficient to form a belief as to the truth or

falsity of the averments of Paragraph 13 of the Com-

plaint.

AOE A le Onl nts ae

47

14. Federal Defendants are without knowledge or in-

formation sufficient to form a belief as to the truth or

falsity of the averments of Paragraph 14 of the Com-

plaint.

15. Federal Defendants admit the averments of Par-

agraph 15 of the Complaint.

16. Federal Defendants admit the averments of the

first sentence of Paragraph 16 of the Complaint. Federal

Defendants are without knowledge or information suff-

cient to form a belief as to the truth or falsity of the

averments of the second sentence of Paragraph 16 of the

Complaint.

17. Federal Defendants admit the averments of the

first sentence of Paragraph 17 of the Complaint. Federal

Defendants are without knowledge or information suffi-

cient to form a belief as to the truth or falsity of the

averments of the second sentence of Paragraph 17 of the

Complaint. The third sentence of Paragraph 17 states

only legal conclusions as to which no answer is required.

18. Federal Defendants admit that certain hazardous

materials, including those set forth in Paragraph 18, have

been placed at various times at the FMPC. The remain-

ing averments of Paragraph 18 of the Complaint state

only legal conclusions as to which no answer is required.

19. As to the first sentence of Paragraph 19, the Fed-

eral Defendants admit that hazardous materials have

been placed at the FMPC in drums or tanks. As to the

second sentence of Paragraph 19, Federal Defendants

admit that the FMPC currently has at least one storage

tank area and two drum storage areas. Except as spe-

cifically admitted herein, the remaining averments of

Paragraph 19 of the Complaint state only legal conclu-

sions as to which no answer is required.

20. As to the first sentence of Paragraph 20, the Fed-

eral Defendants admit that hazardous materials have

been placed in one or more pits at the FMPC and cov-

ered over with soil. As to the second sentence of Para-

graph 20, the federal defendants admit that barium

chloride salt bath sludge has been placed into Pit 4 and

48

covered over with soil. Except as specifically admitted

herein, the averments of the second sentence of Paragraph

20 are denied. As to the third sentence of Paragraph 20,

Federal Defendants aver that rain water collecting in

Pit 4 has been pumped away to pit 5. The averments of

the fourth sentence of Paragraph 20 are denied. Except

as specifically admitted herein the averments of paragraph

20 are denied.

21. As to the averments of Paragraph 21 of the Com-

plaint, Federal Defendants admit that eutectic salt mix-

ture has been processed at the FMPC Pilot Plant. Except

as specifically admitted herein, the remaining averments

of Paragraph 21 of the Complaint state only legal con-

clusions as to which no answer is required.

22. Until completion of the Remedial Investigation

Feasibility Study (“RI/FS”) the Federal defendants are

without knowledge sufficient to admit or deny the aver-

ments of Paragraph 22 of the Complaint concerning con-

tamination of groundwater. The remaining averments

of Paragraph 22 of the Complaint state only legal con-

clusions as to which no answer is required.

23. The averments of Paragraph 23 of the Complaint

state only legal conclusions as to which no answer is

required.

24. The averments of Paragraph 24 of the Complaint

state only legal conclusions as to which no answer is

required.

25. The averments of Paragraph 25 of the Complaint

state only legal conclusions as to which no answer is

required.

26. The averments of Paragraph 26 of the Complaint

state only legal conclusions as to which no answer is

required.

27. Federal Defendants deny the averments of Para-

graph 27 of the Complaint.

28. As to the averments of the first sentence of

Paragraph 28, the Federal Defendants admit that radio-

active residues have been placed in six pits at the FMPC

site. As to the averments of the sixth sentence of Para-

Ret eee ewe ee ee _——

49

graph 28, it is admitted that radioactive-contaminated

material has been placed on the ground. Except as speci-

fically admitted, the averments of the first and sixth sen-

tence of Paragraph 28 are denied. The averments of the

second, third, fourth and fifth sentences are admitted. As

to the averments of the seventh sentence of Paragraph

28, Federal Defendants admit that radioactive materials

have in the past contaminated the soil, air and surface

waters at the FMPC, but until completion of the RI/FS

the Federal Defendants are without knowledge or infor-

mation sufficient to form a belief as to the truth or falsity

of the remaining averments of the seventh sentence of

Paragraph 28.

29. Federal Defendants admit the averments of the

first sentence of Paragraph 29 of the Complaint and that

Exhibit E is a copy of the NPDES permit referred to

in that sentence. Except as specifically admitted herein,

the remaining averments of Paragraph 29 contain only

legal conclusions as to which no answer is required.

30. The averments of the first and fourth sentences of

Paragraph 30 of the Complaint merely characterize and

summarize Exhibit E and, accordingly, no answer is

required since that document is the best evidence of its

contents. The averments of the second and third sentences

of Paragraph 30 state only legal conclusions as to which

no answer is required.

31. The averments of Paragraph 31 of the Complaint

merely characterize and summarize Exhibit E and, ac-

cordingly, no answer is required since that document is

the best evidence of its contents.

32. The averments of Paragraph 32 of the Complaint

state only legal conclusions as to which no answer is

required.

33. The Federal Defendants admit that at various

times they have exceeded certain of the effluent limita-

tions set forth in their NPDES permit, and failed to

construct portions of the water pollution control facili-

ties in accordance with the schedule set forth in the per-

mit. The remaining averments of Paragraph 33 of the

50

Complaint state only legal conclusions as to which no

answer is required.

34. The averments contained in the first sentence of

Paragraph 33 of the Complaint state only legal conclu-

sions as to which no answer is required. Federal De-

fendants deny the averments contained in the second sen-

tence of Paragraph 34 of the Complaint.

35. Paragraphs 1 through 34 of this Answer are in-

corporated by reference in response to the allegations of

Paragraph 35.

36. The averments of Paragraph 36 of the Complaint

state only legal conclusions as to which no answer is

required.

37. The averments of Paragraph 37 of the Complaint

state only legal conclusions as to which no answer is

required.

38. The averments of Paragraph 38 of the Complaint

state only legal conclusions as to which no answer is

required.

39. The averments of Paragraph 39 of the Complaint

state only legal conclusions as to which no answer is

required.

40. The averments of Paragraph 40 of the Complaint

state only legal conclusions as to which no answer is

required.

41. The averments of Paragraph 41 of the Complaint

state only legal conclusions as to which no answer is

required.

42. The averments of Paragraph 42 of the Complaint

state only legal conclusions as to which no answer is

required.

43. The averments of Paragraph 43 of the Complaint

state only legal conclusions as to which no answer is

required. To the extent that Paragraph 43 is deemed to

contain averments to which an answer is required, the

Federal Defendants are without knowledge or informa-

tion sufficient to form a belief as to the truth or falsity

of the averments of Paragraph 43.

51

44. The averments of Paragraph 44 of the Complaint

state only legal conclusions as to which no answer is

required. Federal Defendants aver that 42 U.S.C. § 9607

(g) has been amended by the Superfund Amendments

and Reauthorization Act of 1986, Pub. L. No. 99-499,

100 Stat. 1613 (1986).

45. The averments of Paragraph 45 of the Complaint

state only legal conclusions as to which no answer is

required.

46. Paragraphs 36 through 45 of this Answer are in-

corporated by reference in response to the allegations of

Paragraph 46.

47. The averments of Paragraph 47 of the Complaint

state only legal conclusions as to which no answer is re-

quired. Federal Defendants nevertheless deny that plain-

tiff is the natural resources trustee for the natural re-

sources on, over and under the FMPC.

48. Until completion of the RI/FS and the natural

resources damages assessment, Federal Defendants are

without knowledge or information sufficient to form a

belief as to the truth or falsity of the averments con-

tained in Paragraph 48 of the Complaint.

49. The averments of Paragraph 49 of the Complaint

state only legal conclusions as to which no answer is

required.

50. The averments of Paragraph 50 of the Complaint

state only legal conclusions as to which no answer is

required.

51. The averments of Paragraph 51 of the Complaint

state only legal conclusions as to which no answer is

required.

52. The averments of the first sentence of Paragraph

52 are denied. The averments of the second sentence of

Paragraph 52 state legal conclusions to which no answer

is required.

53. The averments of Paragraph 53 of the Complaint

state only legal conclusions as to which no answer is

required.

52

54. Federal Defendants admit that they filed their

RCRA Part A Permit Application on July 6, 1984, and

their RCRA Part B Permit Application on Oc.over 30,

1985. Both applications remain pending and no permit

has been issued. The remaining averments of Paragraph

54 are denied.

55. As to the first sentence of Paragraph 55, the Fed-

eral Defendants admit that hazardous materials were

placed at FMPC after November 19, 1980, and continue

to be placed there. Federal Defendants also admit that

they filed their RCRA Part A Permit Application on

July 6, 1984, and their RCRA Part B Permit Application

on October 30, 1985, that both applications remain pend-

ing, and no permit has been issued. Except as specifically

admitted herein, the averments of Paragraph 55 state

only legal conclusions as to which no answer is required.

56. The averments of Paragraph 56 of the Complaint

state only legal conclusions as to which no answer is

required.

57. As to the averments of Paragraph 57, Federal

Defendants admit that they filed their RCRA Part A

Permit Application on July 6, 1984, and their RCRA

Part B Permit Application on October 30, 1985, that

both applications remain pending, and no permit has

been issued.

58. The averments of Paragraph 58 of the Complaint

state only legal conclusions as to which no answer is

required.

59. The averments of Paragraph 59 of the Complaint

state only legal conclusions as to which no answer is

required.

60. The averments of Paragraph 60 of the Complaint

state only legal conclusions as to which no answer is

required.

61. The averments of Paragraph 61 of the Complaint

state only legal conclusions as to which no answer is

required.

| 4

53

62. The averments of Paragraph 62 of the Complaint

state only legal conclusions as to which no answer is

required.

63. The averments of Paragraph 63 of the Complaint

are denied.

64. The averments of Paragraph 64 of the Complaint

state only legal conclusions as to which no answer is

required.

65. The averments of Paragraph 65 of the Complaint

. state only legal conclusions as to which no answer is

required.

66. The averments of Paragraph 66 of the Complaint

are denied.

67. The averments of Paragraph 67 of the Complaint

state only legal conclusions as to which no answer is

required.

68. The averments of Paragraph 68 are denied.

69. The averments of Paragraph 69 of the Complaint

state only legal conclusions as to which no answer is

required.

70. The averments of Paragraph 70 of the Complaint

state only legal conclusions as to which no answer is

required.

71. The averments of Paragraph 71 are denied.

72. The averments of Paragraph 72 of the Complaint

state only legal conclusions as to which no answer is

required.

73. The averments of Paragraph 73 of the Complaint

state only legal conclusions as to which no answer is

required.

74. The averments of Paragraph 74 of the Complaint

state only legal conclusions as to which no answer is

required.

75. Federal Defendants deny that they have failed to

implement a ground water monitoring system for Pit 4.

The remaining averments of Paragraph 75 of the Com-

plaint state only legal conclusions as to which no answer

is required.

54

76. The averments of Paragraph 76 of the Complaint

state only legal conclusions as to which no answer is

required.

77. The averments of Paragraph 77 of the Complaint

state only legal conclusions as to which no answer is

required.

78. As to the first sentence of Paragraph 78 of the

Complaint, Federal Defendants admit that they first sub-

mitted closure plans for the pits at the FMPC at the

time that they filed their RCRA Part A Permit Applica-

tion on July 6, 1984. The averments of the second sen-

tence of Paragraph 78 of the Complaint state only legal

conclusions as to which no answer is required.

79. The averments of Paragraph 79 of the Complaint

state only legal conclusions as to which no answer is

required.

80. The Federal Defendants admit that they have not

yet closed Pit 4 and that the final volume of hazardous

waste was placed in Pit 4 in approximately April of

1983. Except as specifically admitted, the averments of

Paragraph 80 are denied.

81. The averments of Paragraph 81 of the Complaint

state only legal conclusions as to which no answer is

required.

82. The Federal Defendants admit that they have not

yet closed Pit 4. Except as specifically admitted, the

averments of Paragraph 82 are denied.

83. The averments of Paragraph 83 of the Complaint

state only legal conclusions as to which no answer is

required.

84. The averments of Paragraph 84 of the Complaint

state only legal conclusions as to which no answer is

required.

85. The averments of Paragraph 85 are denied.

86. The averments of Paragraph 86 of the Complaint

state only legal conclusions as to which no answer is

required.

87. The averments of Paragraph 87 are denied.

55

88. The averments of Paragraph 88 of the Complaint

state only legal conclusions as to which no answer is

required.

89. Federal Defendants aver that prior to April of

1984 they maintained schedules requiring regular in-

spections of the container storage area at the FMPC,

that to their best knowledge and belief such inspections

were conducted on a weekly basis, and since approxi-

mately April of 1984 they have maintained weekly in-

spections of this area.

90. The averments of Paragraph 90 of the Complaint

state only legal conclusions as to which no answer is

required.

91. The averments of Paragraph 91 of the Complaint

state only legal conclusions as to which no answer is

required.

92. The averments of Paragraph 92 are denied.

93. The averments of Paragraph 93 of the Complaint

state only legal conclusions as to which no answer is

required.

- 94, The averments of Paragraph 94 of the Complaint

state only legal conclusions as to which no answer is

required.

95. The averments of Paragraph 95 are denied.

96. The averments of Paragraph 96 of the Complaint

state only legal conclusions as to which no answer is

required.

97. The averments of Paragraph 97 of the Complaint

state only legal conclusions as to which no answer is

required.

98. The Federal Defendants admit that as of July of

1984, they had a contingency plan for any FMPC haz-

ardous waste facility. Except as specifically admitted the

averments of Paragraph 98 are denied.

99. The averments of Paragraph 99 of the Complaint

state only legal conclusions as to which no answer is

required.

56

100. The averments of Paragraph 100 of the Com-

plaint state only legal conclusions as to which no answer

is required.

101. The Federal Defendants admit that as of at least

June 2, 1984, operating records were kept at the FMPC

hazardous facilities containing the information required

by law. Except as specifically admitted, the averments

of Paragraph 101 are denied.

102. The averments of Paragraph 102 of the Com-

plaint state only legal conclusions as to which no answer

is required.

103. The averments of Paragraph 103 of the Com-

plaint state only legal conclusions as to which no answer

is required.

104. The averments of Paragraph 104 of the Com-

plaint state only legal conclusions as to which no answer

is required.

105. Federal Defendants aver that they have imple-

mented a training program and have maintained records

for the FMPC. The remaining averments of Paragraph

105 of the Complaint state only legal conclusions as to

which no answer is required.

106. The averments of Paragraph 106 of the Com-

plaint state only legal conclusions as to which no answer

is required.

107. The averments of Paragraph 107 of the Com-

plaint state only legal conclusions as to which no answer

is required. |

108. The averments of Paragraph 108 are admitted.

109. The averments of Paragraph 109 of the Com-

plaint state only legal conclusions as to which no answer

is required.

110. The averments of Paragraph 110 of the Com-

plaint state only legal conclusions as to which no answer

is required.

111. The averments of Paragraph 111 of the Com-

plaint state only legal conclusions as to which no answer

is required.

57

112. The averments of Paragraph 112 of the Com-

plaint state only legal conclusions as to which no answer

is required.

113. The averments of Paragraph 113 are admitted.

114. The averments of Paragraph 114 are admitted.

115. The averments of Paragraph 115 of the Com-

plaint state only legal conclusions as to which no answer

is required.

116. The averments of Paragraph 116 are admitted.

117. The averments of Paragraph 117 of the Com-

piaint state only legal conclusions as to which no answer

is required.

118. The averments of Paragraph 118 are admitted.

119. The averments of Paragraph 119 of the Com-

plaint state only legal conclusions as to which no answer

is required.

120. The averments of Paragraph 120 are admitted.

121. The averments of Paragraph 121 of the Com-

plaint state only legal conclusions as to which no answer

is required.

122. The averments of Paragraph 122 are denied.

123. The averments of Paragraph 123 of the Com-

plaint state only legal conclusions as to which no answer

is required.

124. The averments of Paragraph 124 are admitted.

125. The averments of Paragraph 125 of the Complaint

state only legal conclusions as to which no answer is

required.

126. The averments of Paragraph 126 are admitted.

127. The averments of Paragraph 127 of the Complaint

state only legal conclusions as to which no answer is

required.

128. The averments of Paragraph 128 are denied.

129. The averments of Paragraph 129 of the Complaint

state only legal conclusions as to which no answer is

required.

130. The averments of Paragraph 130 are denied.

58

131. The averments of Paragraph 131 of the Complaint

state only legal conclusions as to which no answer is

required.

132. The averments of Paragraph 132 of the Complaint

state only legal conclusions as to which no answer is

required.

133. The averments of Paragraph 133 of the Complaint

state only legal conclusions as to which no answer is

required.

134. The averments of Paragraph 134 of the Complaint

state only legal conclusions as to which no answer is

required.

135. Paragraphs 36 through 134 of this Answer are

incorporated by reference in response to the allegations of

Paragraph 135.

136. The averments of Paragraph 136 of the Complaint

state only legal conclusions as to which no answer is

required.

137. The averments of Paragraph 137 of the Complaint

state only legal conclusions as to which no answer is

required.

138. The averments of Paragraph 138 of the Complaint

state only legal conclusions as to which no answer is

required.

139. The averments of Paragraph 139 of the Complaint

state only legal conclusions as to which no answer is

required.

140. The averments of Paragraph 140 are denied.

141. The averments of Paragraph 141 are denied.

142. The averment is not sufficiently specific to permit

an answer. To the extent an answer is required, the

averments of Paragraph 142 are denied.

143. The averments of Paragraph 143 are denied.

144. The averments of Paragraph 144 of the Complaint

state only legal conclusions as to which no answer is

required.

145. The averments of Paragraph 145 of the Complaint

State only legal conclusions as to which no answer is

required.

59

PRAYER FOR RELIEF

The Federal Defendants deny that the State of Ohio is

entitled to the relief requested in its Complaint and pray

for their discharge from the Complaint together with all

costs and all other appropriate or available relief.

GENERAL DENIAL

To the extent that any allegations in the Complaint

are not specifically answered or addressed herein, such

allegations shall be deemed specifically denied.

FIRST DEFENSE

Ohio’s Complaint fails to state a claim upon which re-

lief can be granted.

SECOND DEFENSE

Ohio’s Complaint is barred by the doctrine of sovereign

immunity.

THIRD DEFENSE

Ohio’s Complaint is barred for lack of subject-matter

jurisdiction.

FOURTH DEFENSE

Ohio’s claim for response costs are unrecoverable to the

extent they are duplicative, not cost effective or otherwise

inconsistent with the National Contingency Plan.

FIFTH DEFENSE

Ohio’s claim for natural resource damages is limited to

any residual damages remaining after implementation of

the remedy at the FMPC.

SIXTH DEFENSE

Ohio’s recovery of natural resources damages, if any,

at the FMPC is limited to the lesser of lost use value or

resortation costs.

60

SEVENTH DEFENSE

The hazardous waste laws and regulations of the State

of Ohio do not regulate mixed waste, i.e., hazardous waste

mixed with radioactive waste, and therefore the handling

of mixed waste at the FMPC is regulated by the provi-

sions of RCRA and the Atomic Energy Act. The State of

Ohio is thus not entitled to any relief under on its claims

based upon Federal Defendants’ handling of mixed waste.

EIGHTH DEFENSE

The Atomic Energy Act preempts any state regulation

of source, special and by-product nuclear materials and

wastes and the radioactive hazards associated with haz-

ardous wastes and hazardous constituents which have be-

come moixed with source, special or by-product nuclear

materials. Therefore, the state of Ohio lack jurisdiction

or authority to regulate such materials or waste.

NINTH DEFENSE

The Atomic Energy Act preempts any state regulation

of source, special and by-product nuclear materials and

wastes when they are mixed with or inextricably inter-

twined with otherwise hazardous materials or waste.

Therefore the State of Ohio lacks jurisdiction or author-

ity to regulate such materials or waste.

TENTH DEFENSE

Counts three through twenty-six of Ohio’s complaint

are barred by Ohio Rev. Code §§ 2305.07, 2305.11 and

other relevant statutes of limitations.

ELEVENTH DEFENSE

Counts three through twenty-six of Ohio’s Complaint

are barred by equitable estoppel.

61

TWELFTH DEFENSE

Counts three through twenty-six of Ohio’s Complaint

are barred by laches.

THIRTEENTH DEFENSE

Counts three through twenty-six of Ohio’s Complaint

are barred because Ohio has by its actions waived its

right to seek the relief set forth in those counts.

FOURTEENTH DEFENSE

County twenty-seven of the Complaint is barred by the

provisions of section 10 of Executive Order 12580 (Jan-

uary 23, 1987), reprinted at 52 F.R. 2923.

Respectfully submitted,

D. MICHAEL CRITES

United States Attorney

/s/ Donetta Wiethe

DONETTA WIETHE

220 U.S. Post Office & Courthouse

Assistant United States Attorney

5th & Walnut Sts.

Cincinnati, OH 45202

/s/ J. Steven Rogers

J. STEVEN ROGERS

Davin J. KAPLAN

Environmental Defense Section

Land & Natural Resources Division

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202/FTS) 633-4548

Dated: April 28, 1988

GREGORY FESS

NICKS WILLIAMS

U.S. Department of Energy

Rm. 6H-065, Forrestal Building

(GC-21)

1000 Independence Avenue, S.W.

Washington, D.C. 20585

(202) 252-5509

Attorneys for Defendants:

U.S. Department of Energy &

John S. Herrington

63

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil Action No, C-1-86-0217

Judge Spiegel

STATE OF OHIO, PLAINTIFF

v.

UNITED STATES DEPARTMENT OF ENERGY, ET AL.,

DEFENDANTS

CONSENT DECREE

[Filed Dee. 2, 1988]

WHEREAS, on March: 11, 1986, the State of Ohio

filed a complaint in the above-captioned case against the

United States Department of Energy (“DOE”), NLO,

Inc. (“NLO”) and NL Industries, Inc. (“NLI’’);

WHEREAS, Ohio alleges that DOE, NLO, and NLI

have violated various provisions of Federal and Ohio law

and regulations, and DOE, NLO, and NLI deny any vio-

lation of and any liability under any federal or state stat-

ute, regulation or common law;

WHEREAS, the parties wish to ensure the safe and

environmentally sound handling of mixed and hazardous

waste at the FMPC;

WHEREAS, the parties agree that the Federal and

Ohio hazardous waste regulations as presently drawn do

not impose dissimilar requirements ;

WHEREAS, DOE on July 18, 1986 entered into an

Agreement with U.S. EPA (hereinafter the agreement

64

as amended shall be referred to as the “7/18/86 Agree-

ment”) pursuant to Executive Order 12088, 43 F.R.

47707 (October 13, 1978), and is currently carrying out

a Remedial Investigation and Feasibility Study (herein-

after “RI/FS”) pursuant to the 7/18/86 Agreement and

the Comprehensive Environmental Response, Compensa-

tion and Liability Act, as amended, 42 U.S.C. §§ 9601-

9657 (hereinafter “CERCLA”) ;

WHEREAS, the parties wish to resolve Count One and

Counts Three through Twenty-Seven of this action with-

out litigation to the extent set forth in Sections V and

VII below, and have, therefore, agreed to entry of this

Consent Decree without the admission or adjudication

of any issue of fact or law.

NOW, THEREFORE, it is hereby ordered, adjudged

and decreed as follows:

I. JURISDICTION

The Court has jurisdiction over the matters resolved

in this Consent Decree and the parties to the decree.

Il. GENERAL PROVISIONS

For purposes of this Consent Decree, the following

words and abbreviations have the meanings provided

below:

2.1 “DOE” means the United States Department of

Energy and its officers, agents, employees, and con-

tractors ;

2.2 “Ohio EPA” means Ohio Environmental Protection

Agency and its representatives, including any contrac-

tor(s) retained by Ohio EPA to perform any monitoring,

observation, testing, or other activities related to this

Consent Decree;

2.3 “NLO” means NLO, Inc., an Ohio corporation

which was the prime contractor at the FMPC through

December 31, 1985.

65

24 “NLI” means NL Industries, Inc., a New Jersey

corporation.

2.5 Each of the terms “State”, “State of Ohio”, and

“Ohio”, includes all agencies and officers of the State of

Ohio;

2.6 “FMPC” means the Feed Materials Production

Center owned by DOE and located near Fernald, Ohio;

2.7 “C.F.R.” means Code of Federal Regulations ;

28 “OAC” means Ohio Administrative Code;

2.9 “Hazardous waste’ means a solid waste which

is defined as a hazardous waste in 40 C.F.R. § 261 or

OAC § 3745-51-03, but does not include source, special

nuclear, or by-product material. For purposes of con-

venience in the wording of this Consent Decree only (and

not binding on the parties outside of this Decree and not

for use as a general definition outside Decree), the term

“hazardous waste” does not include “mixed waste”.

2.10 “Mixed waste” means all waste containing both

radioactive waste subject to the Atomic Energy Act and

hazardous waste.

2.11 “Treatment”, “storage”, and “disposal” have the

same meaning as the definitions provided therefor in 40

C.F.R. § 260.10 and OAC § 3745-50-10.

Ill. HAZARDOUS WASTE REQUIREMENTS

3.1 DOE shall conduct its current and future treat-

ment, storage, and disposal of all hazardous and mixed

waste at the FMPC in accordance with Federal and Ohio

hazardous waste laws and hazardous waste regulations,

including but not limited to the permit requirements of

these laws and regulations. However, DOE is not re-

quired to comply with the above requirements, with re-

gard to mixed waste, where compliance will increase the

risk to human safety and health or the environment, or,

with respect to hazardous or mixed waste, where the re-

quirements would be inapplicable due to the restrictions

of 42 U.S.C. § 6905(a). Should DOE not be required to

comply with a hazardous waste requirement due to any

66

of the circumstances described in the preceding sentence,

DOE in consultation with Ohio EPA shall instead handle

the hazardous or mixed waste in a manner as protective

of human safety and health and the environment as if

the hazardous waste requirement had been applied. How-

ever, should any of the above referenced requirements con-

flict with any remedy ultimately selected by U.S. E.P.A.

pursuant to CERCLA, such conflicts shall be subject to

the provisions of Sections V and XII of this Consent

3.2 DOE has submitted to Ohio EPA Part A and Part

B of the application for an Ohio hazardous waste facility

installation and operation permit for the FMPC. Until

such time as the Ohio Hazardous Waste Facility Board

acts on the permit application for the FMPC, DOE shall

not store or dispose of hazardous or mixed waste at any

FMPC locations, or treat any such waste at FMPC in

any devices, not included in the permit application or

subsequent revisions submitted to Ohio EPA. No hazard-

ous or mixed waste from an off-site source not already

listed in the FMPC Part B Permit Application, or a re-

vision as of the date of entry of this Consent Decree,

shall be stored, disposed of or treated at the FMPC

without the prior approval of the State of Ohio. After

the Ohio Hazardous Waste Facility Board acts on the

permit application for such a facility, DOE shall not

store, dispose of, or treat mixed waste at the FMPC

except in accordance with an Ohio hazardous waste facil-

ity installation and operation permit. Nothing in this

Consent Decree shall be construed to preclude DOE from

exercising any right it has to appeal an action on the

permit application nor shall the Consent Decree be in-

terpreted to predetermine the results of the deliberations

of the Ohio Hazardous Waste Facilities Board on the

permit application.

3.3. DOE shall store all drums and other containers

holding hazardous waste and or mixed waste in a manner

which complies with the containment storage system re-

———

67

quirements set forth in 40 C.F.R. § 264.175 and OAC

§ 3745-55-75.

3.4 DOE shall conduct and document inspections of

hazardous waste and mixed waste facilities at FMPC, in-

cluding container or tank storage areas, landfills, and

surface impoundments, in accordance with 40 C.F.R.

§ 264.15, 40 C.F.R. § 265.15, OAC § 3745-54-15 and OAC

§ 3745-65-15.' These inspections shall be conducted at a

frequency sufficient to comply with these rules, but in no

event shall they be conducted at a frequency of less than

once per week. Upon discovery of any leaks or spills of

hazardous or mixed waste from container or tank stor-

age or treatment areas, DOE shall immediately there-

after initiate efforts to stop the spills or leaks, take all

appropriate actions necessary to prevent further spills

or leaks of hazardous or mixed wastes, and take all appro-

priate actions possible to contain and recover all spilled

and leaked hazardous or mixed waste. Should the ground-

water monitoring program reveal the presence of a haz-

ardous or mixed waste, then a groundwater quality assess-

ment will be initiated, and shall be performed consistent

with RCRA guidelines and Ohio and Federal law.

3.5 Within ninety (90) days after entry of this Con-

sent Decree, DOE shall complete and submit to Ohio

EPA analyses of all hazardous or mixed waste streams

produced or received at FMPC. These analyses shall con-

tain the information required by 40 C.F.R. § 265.13 and

OAC § 3745-65-13, as well as the radiological character-

istics of the waste streams, a description of the process

streams producing the wastes, and any applicable EPA

hazardous waste number. If any additional hazardous or

mixed waste stream is identified at the FMPC after the

entry of this Consent Decree, DOE shall complete and

140 C.F.R. § 265.15 applies until U.S. EPA approval of DOE’s

Part B hazardous waste application, and 40 C.F.R. § 264.15 applies

thereafter. OAC § 3745-65-15 applies until Ohio Hazardous Waste

Facility Board approval of DOE’s Part B hazardous waste applica-

tion, and OAC § 3745-54-15 applies thereafter.

68

submit these analyses and/or characteristics, consistent

with 40 C.F.R. § 265.13 and OAC § 3745-65-13,? within

ninety (90) days after identifying the waste stream on-

site; if any additional hazardous or mixed waste stream

is to be received at the FMPC from an off-site source, or

is to be produced at the FMPC, DOE shall complete and

submit such analyses and/or characteristics before re-

ceiving the waste stream from off-site or producing the

waste stream on-site.

3.6 DOE shall keep a written operating record at

FMPC which contains the information required by 40

C.F R. § 264.73, 40 C.F.R. § 265.73, OAC § 3745-54-73

and OAC § 3745-65-73. The operating record shall in-

clude this information for all hazardous waste and mixed

waste which was stored at the FMPC prior to the entry

of this Consent Decree (unless it has been since re-

moved from FMPC) and shall be updated whenever ad-

ditional nazardous or mixed waste is stored there in the

future.

3.7 DOE has submitted to Ohio EPA for review and

approval a groundwater quality assessment program plan.

Ohio EPA has reviewed this plan and identified deficien-

cies in it. DOE shall correct these deficiencies and re-

submit the plan to Ohio EPA within forty-five (45) days

after receiving Ohio EPA’s comments. DOE shall imple-

ment the plan in accordance with the approved timetable.

3.8 The specific requirements spelled out in paragraphs

3.3 through 3.7 above do not replace or supersede any

240 C.F.R. § 265.13 applies until U.S. EPA approval of DOE's

Part B hazardous waste application, and 40 C.F.R. § 264.13 applies

thereafter. OAC § 3745-65-13 applies until Ohio Hazardous Waste

Facility Board approval of DOE’s Part B hazardous waste applica-

tion and OAC § 3745-54-13 applies thereafter.

$40 C.F.R. § 265.73 applies , until U.S. EPA approval of DOE’s

Part B hazardous waste application, and 40 C.F.R. § 264.73 applies

thereafter. OAC § 3745-65-72 applies until Ohio Hazardous Waste

Facility Board approval of DOE’s Part B hazardous waste applica-

tion, and OAC § 3745-54-73 applies thereafter.

69

additional requirements which may be contained in the

regulations cited in those paragraphs or in other haz-

ardous waste laws or regulations, to the extent not in-

consistent with the Atomic Energy Act.

IV. CONTROL OF WASTEWATER AND RUNOFF

4.1 Upon entry of this Consent Decree, no “sewage,”

“industrial waste” or “other wastes,” as those terms are

defined by Ohio Revised Code Section 6111.01, shall be

discharged or placed into Waste Pit #5 or the clear well

at the FMPC without prior written approval of Ohio

EPA. The only exception to this order is the storm water

runoff currently being collected in the waste pit area.

4.2 No water from Waste Pits Number 4, 5, or 6, the

biodenitrification surge lagoon, the biodenitrification surge

lagoon underdrains, or storm water retention basin un-

derdrains shal] be discharged or placed into Paddy’s Run,

unless prior written approval is obtained from Ohio EPA.

4.3 On or about July 27, 1988, DOKeompleted a

characterization study within the coal storage area and

coal storage runoff collection basin area to characterize

the existing underlying soil. On or before November 4,

1988, DOE shall submit a report which contains the re-

sults of the characterization study including the deter-

mined permeability coefficient of the soil core samples and,

if necessary, the steps required to modify the existing

soil conditions to provide groundwater protection equiva-

lent to that provided by three (3) feet of clay with a

permeability coefficient no greater than 1x10-' centi-

meters per second. Ohio EPA agrees to provide a written

response to DOE within thirty (30) days of receipt of

the report as to whether or not a liner is needed.

[A] In the event Ohio EPA determines a liner is

required for the coal pile storage area and/or

the coal pile run off collection basin, DOE shall

submit a PTI application and install the liner

in accordance with schedules approved by Ohio

EPA.

70

|B] In the event that Ohio EPA determines a liner

is not required, DOE shall submit a PTI appli-

cation describing the existing coal pile storage

area and coal pile runoff collection and treat-

ment system within ninety (90) days of Ohio

I} PA’s written response to the report.

4.4 DOE has submitted a current, complete NPDES

permit renewal application. Until Ohio EPA issues a

new NPDES permit for FMPC, DOE shall make every

effort to manage its wastewater in such a way as to

comply with the biochemical oxygen demand, solids, and

fecal coliform limitations of its present NPDES permit.

Until Ohio EPA issues a new NPDES permit for FMPC,

DOE shall comply with all other terms (excluding part

I.B), conditions and effluent limitations of its present

NPDES permit. DOE shall comply with all terms, condi-

tions, and effluent limitations of its new NPDES permit

by the dates specified in the permit. The date for final

compliance shall in no case be later than one (1) year

after issuance of the Ohio Permit to Install for the bi-

odenitrification effluent treatment system.

4.5 Within one hundred and eighty (180) days of

issuance of a new FMPC NPDES permit, DOE shall sub-

mit to Ohio EPA a new Permit to Install application,

including detail plans, for a biodenitrification eMfuent

treatment system designed to meet the biochemical oxy-

gen demand and suspended solids limitations of the new

FMPC NPDES permit.

4.6 By October 1, 1989, DOE shall submit to Ohio

EPA a new Permit to Install application, including detai!

plans, for the full-scale biodenitrification facility. These

plans must include all temporary as well as permanent

collection, storage, and treatment system components.

4.7 DOE has begun construction of a storm water re-

tention basin, and shall complete construction by Decem-

ber 31, 1988, in accordance with the detail] plans approved

by Ohio EPA on November 18, 1987 (PTI 05-1043).

71

DOE shall thereafter operate the storm water retention

system in accordance with the approved plans.

4.8 DOE has submitted to Ohio EPA a contingency

plan which describes the actions DOE wili take to investi-

gate the environmental impact of any future surface

water leakage, overflow or bypass from the storm water

retention system into the environment, including Paddy’s

Run. Ohio EPA has fdentified deficiencies in the plan and

will transmit these to DOE. DOE shall, within sixty

(60) days after receiving notice of these deficiencies, cor-

rect these deficiencies and submit a revised plan to Ohio

EPA. DOE shall implement the provisions of the ap-

proved contingency plan if surface water leaks from,

overflows, or bypasses the storm water retention system.

4.9 Sediments accumulating in the biodenitrification

surge lagoon and storm water retention basins shall be

removed and disposed of in accordance with the mainte-

nance schedules aprpoved in Permits to Install 405-2872

and #05-1043.

10 DOE shall contain any process area spills and

divert the spills for adequate treatment and/or disposal,

in accordance with the Spill Prevention and Control

Countermeasures Plan to be submitted to Ohio EPA for

review and approval within thirty (30) days of the entry

of this Consent Decree.

4.11 Pursuant to Ohio EPA Director’s Findings and

Orders dated June 26, 1987, DOE has submitted to Ohio

EPA for review and comment a best management prac-

tices (BMP) plan for the control of industrial wastes and

other wastes that may be discharged from the FMPC.

For the purpose of this section, “industrial wastes” and

“other wastes” have the meaning set forth in Ohio Re-

vised Code Section 6111.01(C) and (D). The BMP Plan

establishes procedures for inspections, monitoring, pre

ventive maintenance, employee training, material inven-

tory, security and other activities to prevent pollution of

surface waters and groundwater in the event of equip-

ment failure, improper operation, precipitation and other

72

natural phenomena, stormwater runoff and discharges,

and other causes.

[A] DOE shall implement the BMP plan upon noti-

fication of approval of the plan by Ohio EPA.

In the event that Ohio EPA does not approve

the BMP plan in its entirety, DOE shall imple-

ment those portions of the plan approved by

Ohio EPA, correct any deficiencies in the plan’

noted by Ohio EPA, and resubmit a re-

vised plan for review by Ohio EPA not later

than sixty (60) days from notification by Ohio

EPA.

[B] DOE shall maintain the BMP plan at the

FMPC and shall make it available to Ohio EPA

upon request.

[C! DOE shall amend the BMP plan whenever

there is a change in facility design, construc-

tion, operation, or maintenance which materi-

ally affects the facility’s potential for discharge

of industrial wastes or other wastes into the

water of the State.

[D] If Ohio EPA determines that the BMP plan is

ineffective in achieving the general objective of

preventing the release of industrial wastes or

other wastes to the waters of the State, the

BMP plan shall be modified by DOE in con-

sultation with Ohio EPA within forty-five (45)

days of notification to DOE.

4.12 Pursuant to Ohio EPA Director’s Findings and

Orders issued June 26, 1987, DOE has submitted to Ohio

EPA a report which incorporates a study of the discharge

from the FMPC which currently flows from Manhole 175

(Outfall 001) through a pipe to the Great Miami River.

This study was conducted to determine whether or not

the discharge pipe is a potential source of groundwater

73

contamination. Should Ohio EPA request changes and/

or additions in the report of this study, including any of

the recommended alternatives or schedules, DOE shall

submit these changes and/or additions to Ohio EPA

within thirty (30) days after receiving these requests.

All actions and alternatives recommended by the report of

the study required in this Paragraph 4.12 and approved

by the Ohio EPA shall be implemented in accordance with

the schedules approved by Ohio EPA.

4.13 By the twentieth (20th) day of every second

month, DOE shall submit a bi-monthly technical progress

report to Ohio EPA describing the progress made to

comply with this Section IV of the Consent Decree during

the previous two months. DOE may combine this report

with its ongoing reports being submitted pursua * to the

Director’s Findings and Orders issued June 4, 1987.

4.14 DOE is enjoined to comply with any permits

issued to DOE pursuant to OAC § 6111.03(J) and, with

regard to sewage, industrial wastes or other wastes, to

comply with OAC § 3745-31-02 and any permits issued

pursuant to OAC § 3745-31-02.

V. RESERVATION OF RIGHTS CONCERNING

REMEDIAL ACTION

5.1 DOE is currently proceeding with an RI/FS pur-

suant to the 7/18/86 Agreement. Included within the

scope of the RI/FS are work plans, which contain, but are

not limited to, the following:

[Al actions which will be taken to determine the

locations of hazardous and mixed waste at the

FMPC, if any, including but not limited to in-

vestigation of the storage pits, the liquid waste

incinerator, solid waste incinerator, and the

general sump; .

(B] actions which will be taken to analyze such

waste, including the identification of the analy-

ses to be performed ;

[C]

[D}

[E]

[F)

[G]

(H]

74

actions which will be taken to determine whether

hazardous constituents are being released or

have the potential to be released from the stor-

age pits into the environment;

actions which will be taken to assess the feasi-

bility of all alternatives available for the per-

manent disposal of such waste as well as a

proposed schedule for each available alterna-

tive;

actions which will be taken, if a release of haz-

ardous constituent(s) into the environment is

discovered, to assess the feasibility of all alter-

natives available for remedying contamination

of the environment, if any, including a pro-

posed schedule for implementation of each al-

ternative; ,

a timetable for performing each of the actions

described in A through E above and submitting

the information obtained from performing

these actions;

alternatives for permanent disposal of any haz-

ardous and mixed waste in the storage pits;

a work plan and timetable for studying the

sources, nature and extent of groundwater con-

tamination, if any, with nitrates, fluorides, sul-

fates, chlorides, and other “industrial wastes”

and “other wastes,” as those terms are defined

by Ohio Revised Code Section 6111.01(C) and

(D), ineluding, if contamination is discovered,

an assessment of the exposure and potential ex-

posure of the public and the environment to

these contaminants and compilation of data

necessary to develop and select alternatives for

abating the sources of contamination and to

develop and select cleanup alternatives.

75

5.2 The activities described in paragraph 5.1 above

are also the subject matter of injuntive relief which Ohio

has requested against DOE for alleged violations of the

Resource Conservation and Recovery Act (hereinafter

“RCRA”), Ohio Revised Code Chapter 3734, the Clean

Water Act, and Ohio Revised Code Chapter 6111. These

alleged violations are contained in Counts Three through

Eight and Count Twenty-Five of the Complaint.

5.8 Pursuant to the 7/18/86 Agreement, remedial

alternatives will be developed by DOE and selected to

address, inter alia, the matters described in paragraph

5.1 above.

5.4 It is DOE’s position that Ohio EPA is limited to

the review and comment provisions and provisions for

judicial review set forth in sections 120 and 121 of

CERCLA if the state has any disagreement with any

matter under the RI/FS, including cleanup standards,

investigation methods, timetables and the remedial alter-

native selected by US EPA. It is Ohio’s position that the

state has the authority to determine these matters pur-

suant to Ohio law and RCRA, and to obtain injunctive

relief against DOE pertaining to these issues pursuant

to Counts Three through Eight and Count Twenty-Five

of the Complaint and the statutes invoked by these

counts. DOE and the State specifically do not resolve

this dispute in this Consent Decree. Each party specifi-

cally reserves the right to reopen this action for further

litigation for the purpose of resolving any disagreement

which Ohio may have with any of these matters under the

RI/FS, including, but not limited to, cleanup standards,

investication methods, timetables, or the final remedial

action chosen by US EPA under the 7/18/86 Agreement.

Ohio reserves the right to request further injunctive re-

lief acainst DOE pursuant to Counts Three through

Fight and Count Twenty-Five of the Complaint should

Ohio at any time become dissatisfied with the manner or

timeliness of actions or study taken pursuant to the

RI/FS or the manner or timeliness of remedial action

76

occurring after completion of the RI/FS. Each party re

serves its rights to assert and defend its respective legal

_ position should the action be reopened for these purposes.

VI. SITE ACCESS

DOE shall provide access to the FMPC to Ohio EPA

for the purpose of monitoring, sampling and observing

activities carried out under this Consent Decree. Ohio

EPA agrees that it will comply with all statutes, rules

and regulations for personnel safety and site security.

This paragraph shall not be construed to eliminate or

restrict any State access to the FMPC which it may other-

wise have under Federal or State law.

VII. RECOVERY OF RESPONSE COSTS AND

SETTLEMENT OF OTHER MONETARY CLAIMS

7.1 “Response costs” as used in this section means all

costs of “removal” or “remedial action,” as defined by

Section 101(23), (24), and (25) of CERCLA, 42 U.S.C.

§ 9601 (23), (24), and (25).

7.2 By March 1, preceding each federal fiscal year

during which the State expects to incur response costs,

the State shall provide DOE with a written estimate of

response costs expected to be incurred during the two

subsequent fiscal years, based upon the state’s best know]-

edge at the time. By February 1 of each year DOE shall

send Ohio EPA a notice requesting this estimate.

7.3 Following the end of each federal fiscal year, the

State shall submit to DOE an accounting of response

costs incurred during that previous fiscal year. These

accountings will specify the manner in which the pay-

ment shall be made.

7.4 Except as allowed by Paragraph 7.5 below, within

ninety (90) days of receipt of the accounting provided

pursuant to Paragraph 7.3, DOE shall reimburse the

State in the amounts set forth in the accounting. Pay-

ment shall be made by wire transfer or by check in the

manner described in the State’s accounting.

77

7.5 In the event that DOE disputes any amounts set

forth in the State accounting, DOE may contest the dis-

puted costs by invoking the dispute resolution procedures

of Section XII. DOE may contest a cost only on the

grounds that the cost is unsupported by the State’s docu-

mentation, is not a “response cost” under CERCLA, or is

inconsistent with the National Oil and Hazardous Sub-

stances Pollution Contingency Plan, 40 C.F.R. Part 300

(“NCP”). DOE shall bear the burden of demonstrating

that the cost is inconsistent with the NCP.

7.6 Should DOE contest a portion of the costs set

forth in an accounting but not all of the costs, the uncon-

tested costs shall be paid by the deadline provided by

paragraph 7.4 above. Any costs which DOE must pay

as a result of dispute resolution shall be paid within

ninety (90) days after resolution of the dispute.

7.7 Not later than thirty (30) days after the entry

of this Consent Decree, NLO shall pay to the State of

Ohio in full and final settlement of disputed claims

brought by the State of Ohio against NLO in this action

under Count One and Counts Three through Twenty-

seven, the sum of Two Hundred Seventy-Five Thousand

Dollars ($275,000) by certified check or by wire transfer

payable to the order of “Treasurer, State of Ohio”, for

deposit into the “Hazardous Waste Cleanup Fund”.

7.8 Not later than thirty (30) days after the entry

of this Consent Decree, DOE shall pay to the State of

Ohio in full and final settlement of disputed claims

brought by the State of Ohio against DOE for all past

response costs in this action incurred by the state

through September 30, 1988, the sum of Three Hundred

Thirty-Five Thousand Dollars ($335,000) by certified

check or by wire transfer payable to the order of “Treas-

urer, State of Ohio”, for deposit into the “Hazardous

Waste Cleanup Fund”, and the sum of Eighty Thousand

Dollars ($80,000) for litigation costs by certified check

or wire transfer to the order of “Ohio Attorney

General”.

78

7.9 With regard to the State of Ohio’s claims against

DOE for civil penalties, the Court has separately granted

DOE’s Motion to certify for interlocutory appeal the

Order Denying Motion to Dismiss issued by the Court on

March 18, 1988, which held that the United States has

waived sovereign immunity under RCRA and the CWA

for the imposition of civil penalties and that DOE could

be liable for such penalties in this case. The parties

have entered into a stipulation settling the amount of -

civil penalties to be assessed against DOE, if, after ex-

haustion of all appellate rights by DOE, the ultimate de-

cision in this case is that a waiver of Federal sovereign

immunity has been made by RCRA or the CWA with re-

gard to any of the State’s civil penalty claims. In such

a case, judgment will be entered in accordance with the

stipulation. If, after exhaustion of all appellate rights

by the State the ultimate decision in this case is that no

waiver of Federal sovereign immunity has been made by

RCRA or the CWA with regard to any of the State’s

civil penalty claims, judgment shall be entered on these

issues in accordance with the ultimate decision.

Vill. RELEASES

8.1 Except as specified below, the State hereby re-

leases, covenants not to sue and not to bring any action,

whether civil, criminal or for administrative findings and

orders, against NLO, NLI, the United States or any de-

partment or agency thereof, or any past or present offi-

cer, director, official, employee, agent, or contractor (and

any past or present official, officer, director, employee,

agent or sub-contractor of such contractor), of NLO,

NLI, or the United States, with respect to the claims

contained in Count One and Counts Three through

Twenty-Seven of the Complaint filed in this action.

8.2 The parties recognize that this Consent Decree

does not address any of the claims contained in Count

Two of the Complaint. This Count is stayed until com-

pletion of the RI/FS, and thus remains pending. This

79

Consent Decree also does not resolve the matters reserved

in Section V.

8.3 By executing this Consent Decree, the State of

Ohio expressly reserves for further action or enforcement

and does not discharge, release, or in any way affect any

right, demand, claim, or cause of action which it has, or

may have, against any person or entity not released in

paragraph 8.1 above.

8.4 The parties agree to cooperate with each other

in identifying other potential sources of contamination

which may affect the FMPC or the surrounding area.

IX. COMPLIANCE

Except as specifically set forth in this Consent Decree,.

DOE shall not be excused from compliance with any ap-

plicable federal and state laws in carrying out the pro-

visions of this Consent Decree. DOE agrees to advise

the State of Ohio of its efforts to obtain the appropriated

funding necessary to implement this Consent Decree.

The State of Ohio and DOE agree that in any judicial

proceeding seeking to enforce the terms of this Consent

Decree and/or to find DOE in contempt for failure to

comply or for delay in compliance with such terms, DOE

may raise as a defense that its failure or delay was

caused by circumstances beyond its control or that such

failure or delay was caused by the unavailability of ap-

propriated funds. While the State of Ohio disagrees that

such defenses exist, the parties do agree and stipulate

that it is premature at this time to raise and adjudicate

the existence of such defenses.

X. PERMITS AND APPROVALS

The State of Ohio will use its best efforts to review

in a timely manner, following DOE application, any per-

mits necessary for DOE to carry out the work required

pursuant to this Consent Decree.

80

XI. USE OF DECREE

This Consent Decree was negotiated and executed by

the parties in good faith to avoid expensive and pro-

tracted litigation and is a settlement of claims which

were vigorously contested, denied and disputed as to va-

lidity and amount. The execution of this Consent Decree

is not an admission of liability with regard to any issue

dealt with in this Consent Decree. Accordingly, it is

the intention of the parties, the parties hereby agree, and

the Court Orders, that with the exception of this pro-

ceeding, any proceeding to adjudicate a permit applica-

tion (but only to the extent necessary tn prove the re-

quirements of the Consent Decree), any proceeding re-

served under Section V, and any other proceeding

brought by the parties to enforce this Consent Decree,

this Consent Decree shall not be admissible in any judi-

cial or administrative proceeding whether civil or crim-

inal, or in state or federal court, and regardless of

whether the gravamen of such action or proceeding is

based in tort, contract or statute.

XII. RESOLUTION OF DISPUTES

12.1 Should Ohio or DOE have a good faith dispute

over the interpretation of this Consent Decree, over

whether a term of this Consent Decree has been violated,

or over the amount of response costs paid pursuant to

Section VII, or if the actions or requirements imposed

on DOE by Ohio pursuant to this Consent Decree con-

flict with actions or requirements imposed on DOE by

U.S. EPA pursuant to the 7/18/86 Agreement, the pro-

cedures of this section shall apply except as specifically

set forth elsewhere in this Consent Decree. Because Ohio

and DOE disagree over whether actions or requirements

imposed on DOE by Ohio pursuant to this Consent De-

cree take precedence over actions or requirements im-

posed on DOE by U.S. EPA pursuant to the 7/18/86

Agreement in the event of a conflict between the two,

ee

81

this Consent Decree shall not be construed to establish

the authority of one over the other. Each party reserves

its right to assert and defend its respective legal position

on this issue should such a conflict not be resolved by

the parties pursuant to this section of the Consent

Decree.

12.2 If either Ohio or DOE believes that a dispute

is not a good faith dispute, or that a delay would pose

or increase a threat of harm to the public or the en-

vironment, either party may petition the Court for re-

lief without following the dispute resolution procedures

of this section.

12.3 During the pendency of any dispute, Ohio and

DOE agree that they shall continue to implement those

portions of this Consent Decree which are not in dispute

and which Ohio determines can be reasonably imple-

mented pending final resolution of the issue(s) in dis-

pute. If Ohio determines that all or part of those por-

tions of work which are affected by the dispute should

stop during the pendency of the dispute, DOE shail dis-

continue implementing those portions of the work. Ohio

and DOE agree they shall make reasonable efforts to

informally resolve all disputes.

12.4 DOE shall, within fifteen (15) days of any ac-

tion by Ohio which it is disputing, provide Ohio with a

written notice of dispute. DOE shall, within thirty (30)

days of any such action by Ohio which it is disputing,

provide Ohio with a written statement of dispute setting

forth the nature of the dispute, DOE’s position with re-

spect to the dispute and the information DOE is relying

upon to support its position. If DOE does not provide

such written notice within the fifteen (15) day period,

or after such notice fails to »rovide a written statement

to Ohio within the thirty (30) day period, DOE shall be

deemed to have agreed to the position taken by Ohio.

12.5 Upon receipt of the written statement of dis-

pute, Ohio and DOE shall engage in dispute resolution

among the project coordinators. The project coordinators

Ee Ot PE tig Et es ge SEs

82

shall have fourteen (14) days from the receipt by Ohio

of the written statement of dispute to resolve the dispute.

During this period the project coordinators shall meet

or confer by telephone as many times as necessary to

discuss and attempt resolution of the dispute. If a reso-

lution cannot be reached on any issue within this four-

teen (14) day period, either Ohio or DOE may, by writ-

ten notice, elevate the dispute to the Dispute Resolution

Committee (DRC) for resolution.

12.6 DOE and Ohio shall each designate one individ-

ual to serve on the DRC. The individuals designated to

serve on the DRC shall be those designated in Subpara-

graph 12.7, or their delegate authorized to serve on the

DRC on behalf of such designated individual, for the

purposes of dispute resolution under this Consent Decree.

The DRC will serve as a forum for resolution of disputes

for which agreement has not been reached pursuant to

paragraph 12.5. If both designated members of the

DRC do not agree on a resolution of the dispute within

thirty (30) days, either party may institute an action in

this Court to resolve the dispute under this Consent

Decree.

12.7 The Ohio designated member of the DRC is the

Chief, Division of Solid and Hazardous Waste Manage-

ment, Ohio EPA. The DOE designated member is the

DOE Site Manager. Notice of any delegation of author-

ity from a Party’s designated member on the DRC shall

be provided to all other Parties,

12.8 The pendency of any dispute under this Part

shall not affect DOE’s responsibility for timely perform-

ance of the work required by this Consent Decree, ex-

cept that the time period for completion of work af-

fected by such dispute shall be extended for a period of

time not to exceed the actual time taken to resolve any

good faith dispute in accordance with the procedures spe-

cified herein if the parties agree that the performance of

such work could not reasonably continue during the

pendency of such dispute. All elements of the work re-

83

quired by this Consent Decree which are not affected by

the dispute shall continue and be completed in accordance

with the work plan schedule.

12.9 Within fourteen (14) days of resolution of any

dispute, DOE shall incorporate the resolution and final

determination into the appropriate plan, schedule or pro-

cedures and proceed to implement this Consent Decree

according to the amended plan, schedule or procedures.

12.10 Resolution of a dispute pursuant to this section

of the Consent Decree constitutes a final resolution of any

dispute arising under this Consent Decree.

12.11 In the case of a dispute which is referred to the

DRC and which involves any potential conflict with

DOE’s actions under the RI/FS or the 7/18/86 Agree-

ment (including but not limited to cleanup standards, in-

vestigation metheds, timetables and remedial actions), an

appropriate representative from U.S. EPA shall be in-

vited to participate in the deliberations of the DRC. If

the DRC is unable to resolve the dispute, Ohio and DOE

retain the rights described in Section V of this Consent

Decree.

12.12 In any dispute subject to dispute resolution, the

parties may by written agreement modify the procedures

of subparagraphs 12.1 through 12.11 above, including but

not limited to an extension or shortening of the times

therein or the waiver of any provision set forth therein.

XIII. EFFECTIVE AND TERMINATION DATES

13.1 This Consent Decree shall be effective upon the

date of its entry by the Court.

13.2 This Consent Decree shall terminate as to DOE

upon completion of the mandatory relief ordered herein,

or upon the passage of five (5) years from its effective

date, whichever is later.

13.3 This Consent Decree shall terminate as to NLO

upon the payment in full of the amounts required in Par-

agraph 7.7.

ee ee

84

XIV. MISCELLANEOUS

14.1 DOE shall require that all of its contractors

operating the FMPC comply with all applicable hazardous

waste and water pollution laws and the provisions of this

Consent Decree.

14.2 Without predetermining whether or not the Pres-

ident can exempt the facility from any provisions of this

Consent Decree, nothing in this Consent Decree shall

preclude, restrict or expand any right or authority of

the President of the United States contained in 33 U.S.C.

§ 1323, 42 U.S.C. § 6961, or 42 U.S.C. § 9620(j).

14.3 The Court shall maintain jurisdiction of the

claims of the State for the purpose of enabling the parties

to apply to the Court for any further orders that may be

necessary to construe, carry out, or enforce compliance

with the terms and conditions set forth in this Consent

Decree.

SO ORDERED this 2nd day of December, 1988.

/s/ §S. Arthur Spiegel

S. ARTHUR SPIEGEL

United States District Judge

85

APPROVAL OF COUNSEL ON BEHALF OF THE

PARTIES:

ANTHONY J. CELEBREZZE

Attorney General of Ohio

/s/ Jack A. Van Kley

JACK A. VAN KLEY

Trial Attorney

TimoTuy J. KERN

Of Counsel

TERRENCE S. FINN

Assistant Attorneys

General

Environmental

Enforcement Section

30 Broad Street,

17th Floor

Columbus, Ohio

43266-0410

(614) 466-2766

Attorneys for Plaintiff

State of Ohio

/3/

ROGER J, MARZULLA

Assistant Attorney General

Land & Natural Resources

Division

U.S. Department of Justice

D. MICHAEL CRITES

United States Attorney

Donetta Wiethe

DONETTA WIETHE

Assistant United States Attorney

220 U.S. Poot Office & Courthouse

5th & Walnut Sts.

Cincinnati, OH 45202

(513) 684-3711

/3/ J. Steven Rogers

/s/

J. STEVEN ROGERS

Trial Attorney

Environmental Defense Section

Land & Natural Resources

Division

U.S. Department of Justice

PO. Box 23986

Washington, D.C. 20026-3986

(202/FTS) 633-4548

Henry A. Gill, Jr.

HENRY A. GILL, JR.

Deputy General Counsel

for Litigation

GREGORY FESS

NICKS WILLIAMS

Room 6H-065, Forrestal Building

1000 Independence Avenue, S.W.

Washington, D.C. 20585

(202) 586-5509

Attorneys for Defendants:

U.S. Department of Energy &

John S. Herrington

86

APPROVAL OF COUNSEL ON BEHALF OF THE

PARTIES:

/s/ Henry A. Gill, Jr.

Henry A. GILL, JR.

87

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Civil No. C-1-86-0217

Judge Spiegel

STATE OF OHIO, PLAINTIFF

Vv.

UNITED STATES DEPARTMENT OF ENERGY, ET AL.,

DEFENDANTS

STIPULATION BETWEEN THE DEPARTMENT OF

ENERGY AND THE STATE OF OHIO RELATING TO THE

STATE OF OHIO’S CLAIMS FOR CIVIL PENALTIES

[Filed Dec. 2, 1988]

I. INTRODUCTION

On March 18, 1988, the Court denied the Department

of Energy’s (“DOE”) Motion to Dismiss and ruled that

the United States has waived federal sovereign immunity

under the Resource Conservation and Recovery Act, 42

U.S.C. §§ 6901-6991i (“RCRA”), and the Clean Water

Act, 33 U.S.C. §§ 1251-1376 (“CWA”), for the imposi-

tion of civil_penalties and that the State of Ohio is en-

titled to assert civil penalty claims against DOE in this

case. On September 23, 1988, the Court certified its

March 18, 1988 Order for interlocutory appeal to the 6th

Circuit Court of Appeals, and DOE filed its Motion for

Interlocutory Appeal with the 6th Circuit on October

3, 1988.

The parties have now negotiated a Consent Decree

which settles all claims in this action éxcept Ohio’s claims

a a i al

il i rl i ee

-

‘

88

for Natural Resource Damages under Count Two (which

is stayed until completion of the Remedial Investigation /

Feasibility Study) and Ohio’s claims for civil penalties.

In order to save both the Court and the parties the

enormous time and expense of litigating Ohio’s civil pen-

alty claims should this matter come to trial prior to com-

pletion of the appeal, or should the appellate court affirm

this Court’s Order, the parties have entered into this Stip-

ulation to provide for disposition without trial of Ohio’s

civil penalty claims after resolution of all appeals which

are pursued concerning the March 18, 1988 Order Deny-

ing Motion to Dismiss. As provided herein, payments will

be made by DOE, if at all, the judgment entered pur-

suant to this Stipulation, only after final resolution of all

appeals of the March 18, 1988 Order pursued by the par-

ties, including a petition for a writ of certiorari from

the United States Supreme Court.

For purposes of this Stipulation, “completition of the

appeal” shall mean the exhaustion of all appeals of the

March 18, 1988 Order, including any remands and ap-

peals of such remands, and shall occur on the later of (a)

the last date on which a petition for a writ of certiorari

can be filed in the United States Supreme Court with

regard to a decision in this case by the United States

Court of Appeals for the Sixth Circuit, if such a petition

is not filed; (b) if a petition for a writ of certiorari is

filed, the date on which the petition is denied by the Su-

preme Court, or if a petition for rehearing such denial is

filed, the date on which the petition for rehearing is

denied; or (c) if a petition for writ of certiorari is

granted, the date on which the opinion or order of the

Supreme Court is issued, or if a petition for rehearing is

filed, the date on which the petition for rehearing is

denied or the final opinion or order on rehearing is

issued.

It is the agreement of the parties that, if civil penalties

are paid by DOE pursuant to this Stipulation, the maxi-

mum civil penalty for all of Ohio’s hazardous waste claims

|

89

in this case shall be a total of $125,000, and the maximum

civil penalty for all of Ohio’s water pollution claims in

this case shall be $125,000. Thus, only one of the three

alternative provisions set forth under the hazardous

waste claims shall be entered as a judgment, and only

one of the three alternative provisions set forth under the

water pollution claims shall be entered as a judgment.

Il. HAZARDOUS WASTE CLAIMS (Counts Three

through Sixteen ) —

2.1 If, after completition of the appeal, the ultimate

decision holds that RCRA has waived federal sovereign

immunity to allow the State of Ohio to bring suit against

DOE for civil penalties claims imposed under .Ohio state

hazardous waste laws, a Consent Judgment shall be en-

tered as follows:

DOE shall, not later than thirty (30) days after

completition of the appeal, and in full settlement of

disputed claims made by the State of Ohio against

DOE under Counts Three through Sixteen, pay to

the State of Ohio the sum of One Hundred Twenty-

Five Thousand Dollars ($125,000) as civil penalties,

by certified check or by wire transfer payable to the

order of “Treasurer, State of Ohio”, for deposit into

the “Hazardous Waste Cleanup Fund”.

2.2 If, after completition of the appeal, the ultimate

decision holds that RCRA has not waived federal sov-

ereign immunity to allow the State of Ohio to bring suit

against DOE for civil penalties claims imposed under

Ohio state hazardous waste laws, but that RCRA has

waived federal sovereign immunity to allow the State of

Ohio to bring suit against DOE for civil penalties claims

imposed under RCRA, a Consent Judgment shall be en-

tered as follows:

DOE shall, not later than thirty (30) days after

completition of the appeal, and in full settlement of

90

disputed claims made by the State of Ohio against

DOE under Counts Three through Sixteen, arrange

for payment to the United States Treasury of One

Hundred Twenty-Five Thousand Dollars ($125,000)

as civil penalties. Ohio’s civil penalty claims under

state law in these counts will be dismissed.

2.3 If, after completition of the appeal, the ultimate

decision holds that RCRA has not waived federal sov-

ereign immunity to allow the State of Ohio to bring suit

against DOE for civil penalties claims imposed under

either Ohio state hazardous waste laws or under RCRA,

the civil penalty claims contained in Counts Three through

Sixteen shall be dismissed.

III. WATER POLLUTION CLAIMS (Counts Seventeen

through Twenty-Six) —

3.1 If, after completition of the appeal, the ultimate

decision holds that the CWA has waived federal sov-

ereign immunity to allow the State of Ohio to bring suit

against DOE for civil penalties claims imposed under

state water pollution control laws, a Consent Judgment

shall be entered as follows:

DOE shall, not later than thirty (30) days after

completition of the appeal, and in full settlement of

disputed claims made by the State of Ohio against

DOE under Counts Seventeen through Twenty-Six,

pay to the State of Ohio the sum of One Hundred

Twenty-Five Thousand Dollars ($125,000) as civil

penalties, by certified check or by wire transfer pay-

able to the order of “Treasurer, State of Ohio”.

3.2 If, after completion of the appeal, the ultimate

decision holds that the CWA has not waived federal sov-

ereign immunity to allow the State of Ohio to bring suit

against DOE for civil penalties claims imposed under

state water pollution control laws, but that the CWA has

waived sovereign immunity to allow the State of Ohio to

91

bring suit against DOE for civil penalties claims imposed

under the CWA, a Consent Judgment shall be entered as

follows:

DOE shall, not later than thirty (30) days after

completition of the appeal, and in full settlement of

disputed claims made by the State of Ohio against

DOE under Counts Seventeen through Twenty-Six,

arrange for payment to the United States Treasury

of One Hundred Twenty-Five Thousand Dollars

($125,000) as civil penalties. Ohio’s civil penalty

claims under state law in these counts will be dis-

missed.

3.3 If, after completition of the appeal, the ultimate

decision holds that the CWA has not waived federal sov-

ereign immunity to allow the State of Ohio to bring suit

against DOE for civil penalties claims imposed under

either Ohio state water pollution control laws or under

the CWA, the civil penalty claims contained in Counts

seventeen through twenty-six shall be dismissed.

IV. IMPLEMENTATION

After completion of the appeal, DOE and Ohio will file

appropriate pleadings to implement this Stipulation. If

the parties are unable to file such appropriate pleadings

by agreement, either party may request the Court to enter

judgment in accordance with this Stipulation.

ANTHONY J. CELEBREZZE

Attorney General of Ohio

/s/ Jack A. Van Kley

JACK A. VAN KLEY

Trial Attorney

TIMOTHY J. KERN

Of Counsel

TERRENCE S. FINN

Assistant Attorneys

General

Environmental

Enforcement Section

30 Broad Street,

17th Floor

Columbus, Ohio

43266-0410

(614) 466-2766

Attorneys for Plaintiff

State of Ohio

92

Respectfully submitted,

/3/

ROGER J. MARZULLA

Assistant Attorney General

Land & Natural Resources

Division

U.S. Department of Justice

D. MICHAEL CRITES

United States Attorney

Donetta Wiethe

DONETTA WIETHE

Assistant United States Attorney

220 U.S. Post Office & Courthouse

5th & Walnut Sts.

Cincinnati, OH 45202

(513) 684-3711

/s/ J. Steven Rogers

J. STEVEN ROGERS

Trial Attorney

Environmental Defense Section

Land & Natural Resources

Division

U.S. Department of Justice

PO. Box 23986

Washington, D.C. 20026-3986

(202/FTS) 633-4548

/3/ Henry A. Gill, Jr.

HENRY A. GILL, JR.

Deputy General Counsel

for Litigation

GREGORY FESS

NICKS WILLIAMS

Room 6H-065, Forrestal Building

1000 Independence Avenue, S.W.

Washington, D.C. 20585

(202) 586-5509

Attorneys for Defendants:

U.S. Department of Energy &

John S. Herrington

. 93

SUPREME COURT OF THE UNITED STATES

No. 90-1341

UNITED STATES DEPARTMENT OF ENERGY, ET AL.,

PETITIONERS

Vv.

OHIO, ET AL.

ORDER ALLOWING CERTIORARI

Filed June 3, 1991

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Sixth Circuit is

granted. This case is consolidated with 90-1517, Ohio,

et al. v. United States Department of Energy, et al. and

a total of one hour is allotted for oral argument.

June 3, 1991

94

SUPREME COURT OF THE UNITED STATES

No. 90-1517

OHIO, ET AL., PETITIONERS

VU.

UNITED STATES DEPARTMENT OF ENERGY, ET AL.

ORDER ALLOWING CERTIORARI

Filed June 3, 1991

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Sixth Circuit is

granted. This case consolidated with 90-1341, United

States Department of Energy, et al. v. Ohio, et al. and

a total of one hour is allotted for oral argument.

June 3, 1991

w us. SOVERNMEMT PRINTING OFFICE; 1991 262203 40017