Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 1 of 22

UNITED STATES OF AMERICA
THE CITY OF PHILADELPHIA and
THE CITY OF PHILADELPHIA REDEVELOPMENT
AUTHORITY

X

June 5, 2019

John N. Moscato

303-844-1380

303-844-1350

United States of America
john.moscato@usdoj.gov

 Case Document 1 Filed 06/05/19 Page 2 of 22

Civil Justice Expense and Delay Reduction Plan
Section 1:03 Assignment to a Management Track

The clerk of court will assign cases to tracks through based on the initial pleading.

In all cases not appropriate for assignment by the clerk of court to tracks through the
plaintiff shall submit to the clerk of court and serve with the complaint on all defendants a case management
track designation form specifying that the plaintiff believes the case requires Standard Management or
Special Management. In the event that a defendant does not agree with the plaintiff regarding said
designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the
plaintiff and all other parties, a case management track designation form specifying the track to which that
defendant believes the case should be assigned.

(0) The court may, on its own initiative or upon the request of any party, change the track
assignment of any case at any time.

Nothing in this Plan is intended to abrogate or limit a judicial officer's authority in any case
pending before that judicial of?cer, to direct pretrial and trial proceedings that are more stringent than those
of the Plan and that are designed to accomplish cost and delay reduction.

Nothing in this Plan is intended to supersede Local Civil Rules 40.1 and 72.1, or the
procedure for random assignment of Habeas Corpus and Social Security cases referred to magistrate judges
of the court.

SPECIAL MANAGEMENT CASE ASSIGNMENTS
(See ?1.02 Management Track De?nitions of the
Civil Justice Expense and Delay Reduction Plan)

Special Management cases will usually include that class of cases commonly referred to as "complex
litigation" as that term has been used in the Manuals for Complex Litigation. The first manual was prepared
in 1969 and the Manual for Complex Litigation Second, MCL 2d was prepared in 1985. This term is
intended to include cases that present unusual problems and require extraordinary treatment. See ?0.l of the
first manual. Cases may require special or intense management by the court due to one or more of the
following factors: (1) large number of parties; (2) large number of claims or defenses; (3) complex factual
issues; (4) large volume of evidence; (5) problems locating or preserving evidence; (6) extensive discovery;
(7) exceptionally long time needed to prepare for disposition; (8) decision needed within an exceptionally
short time; and (9) need to decide preliminary issues before final disposition. It may include two or more
related cases. Complex litigation typically includes such cases as antitrust cases; cases involving a large
number of parties or an unincorporated association of large membership; cases involving requests for
injunctive relief affecting the operation of large business entities; patent cases; copyright and trademark
cases; common disaster cases such as those arising from aircraft crashes or marine disasters; actions brought
by individual stockholders; stockholder's derivative and stockholder's representative actions; class actions or
potential class actions; and other civil (and criminal) cases involving unusual multiplicity or complexity of
factual issues. See of the first Manual for Complex Litigation and Manual for Complex Litigation
Second, Chapter 33.

Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 3 of 22

CIVIL COVER SHEET

JS 44 (Rev. 06/17)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use ofthe Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ONNEXTPAGE OF THIS FORM)
I.(a) PLAINTIFFS

THE~ITN
~OF PHILADELPHIA and
THE CITY OF PHILADELPHIA
REDEVELOPMENT AUTHORITY

U NITED STATES OF AMERICA

County of Residence of First Listed Defendant
(
IN U.S. PL.9iNTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(b) County of Residence of First Listed Plaintiff
EXCEPTIN U.S. PLAINTIFF CASES)
(

Attorneys (I,fKnown)

~C~ AttoCneys (Firm Name, Address, and Telephone Number)
Jo n N. Moscato, U.S. Department of Justice, 999 18th Street, South
Terrace, Suite 370, Denver, CO 80202; 303-844-1380

1:111GL~1r~lrilY Vl' YlC11Vl.lYALYAlil1L~.7(Ytacean "X'"rnVne voxJorrtaJnnp
and One Boxfor Defendant)
(
For Diversity Cases Only)
DEF
PTF
PTF DEF
O 4 Q4
Q 1 Incorporated or Principal Place
O 1
Citizen of This State
ofBusiness In This State

II. BASIS OF JURISDICTION (place an 'x"in one eox on[y)
I~ 1

O 3 Federal Question
(U.S Government Not a Party)

U.S. Government
Plaintiff

O 4 Diversity
(Indicate Citizenship ofPartres rn Item II/J

O 2 U.S. Government
Defendant

iV

Q
Q
O
Q

Q
O
O
O
O
O

REAL PROPERTY
210 Land Condemnation
220 Forecloswe
230 Rent Lease & Ejechnent
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

Q

O 2 Incorporated and Principal Place
ofBusiness In Another State

Citizen or Subject of a
Fnrn~rm (`n~.nM~

O 3

O 3

PERSONAL INNRY
O 310 Airplane
O 315 Airplane Product
Liability
O 320 Assault, Libel &
Slander
CI 330 Federal Employers'
Liability
O 340 Mazine
O 345 Marine Product
Liability
O 350 Motor Vehicle
O 355 Motor Vehicle
Product Liability
O 360 Other Personal
Injury
O 362 Personal Injury Medical Mal racuce
CIVIL RIGHTS
O 440 Other Civil Rights
O 441 Voring
O 442 ~;mployment
Q 443 Housing/
Accommodations
O 445 Amer. w/Disabilities Employment
O 446 Amer. w/Disabilities Other
O 448 Education

V. ORIGIN (Place an ".Y" in One Box On[y)
Q 2 Removed from
State Court

J$1 Original
Proceeding

FO

RT

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement ofJudgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

O
Q

O 2

N A T7TATi (1Ti CiTiT ioi,..... ,._ ~~v~~ :.. n»,. a,..- n.,a,i
C NTRA

O
O
O
❑
O

Citizen of Another State

PERSONAL INJURY
C] 365 Personal Injury Product Liability
O 367 Health Caze/
Pharmaceurical
Personal Injury
Product Liability
O 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
O 370 Other Fraud
O 371 Truth in Lending
O 380 Other Personal
Property Damage
Q 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
O 463 Alien Detainee
Q 510 Morions to Vacate
Sentence
O 530 General
O 535 Death Penalty
Other:
O 540 Mandamus &Other
O 550 Civil Rights
O 555 Prison Condition
O 560 Civil Detainee Conditions of
Confinement

EIT

O 422 Appea128 USC 158
O 423 Withdrawal
28 USC 157

O 820 Copyrights
O 830 Patent
O 835 Patent -Abbreviated
New Drug Application
O 840 Trademark
O 710 Fair Labor Standards
Act
O 720 Labor/Management
Relations
O 740 Railway Labor Act
O 751 Family and Medical
Leave Act
O 790 Other Labor Lirigation
O 791 Employee Retvement
Income Security Act

Remanded from
Appellate Court

Q 6

O6

O
Q
O
O
O

861 HIA (1395f~
862 Black Lung(923)
863 DIWC/DIW W (405(g))
864 SSID Title XVI
865 RSI(405(g))

FEDERAL TAX SUITS
O 870 Taxes(U.S. Plaintiff
or Defendant)
O 871 IRS—Tlilrd Party
26 USC 7609

IMMIGRATION
O 462 Nativalization Application
O 465 Other Immigration
Actions

Q 375 False Claims Act
O 376 Qui Tam(31 USC
3729(a))
O 400 State Reapportionment
Q 410 Antitrust
O 430 Banks and Banking
O 450 Commerce
O 460 Deportation
O 470 Racketeer Influenced and
Corrupt Organizations
O 480 Consumer Credit
O 490 Cable/Sat TV
O 850 Securities/Commodities/
Exchange
O 890 Other Statutory Actions
Agricultural
Acts
Q 891
f~ 893 Environmental Matters
O 895 Freedom of Information
Act
O 896 Arbihation
Q 899 Administrative Procedure
AcUReview ur Appeal of
Agency Decision
O 950 Consdturionality of
State Statutes

O 5 Transferred from
Q 6 Multidistrict
Litigation Another District
Transfer
(specrjy)
Cite the U.S. Civil Statute under which you are Filing(Do not cirejurisdictiona[statutes unless diversity):
O 3

O5

Clink here fnr Nature of Shit Cnde nescrintions.
R TA TE
HIt
Y

ENALTY

O 625 Drug Related Seizure
ofProperty 21 USC 881
O 690 Other

Foreign Nation

O 5

Q 4 Reinstated or
Reopened

O 8 Multidistrict
Litigation Direct File

VI. CAUSE OF ACTION grief description of cause:
Cost recovery under CERCLA for past and future costs relating to the Lower Darby Creek Area Superfund Site
CHECK YES only if demanded in complaint:
DEMAND $
~ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23,F.R.Cv.P.

COMPLAINT:

JURY DEMAND:

VIII. RELATED CASES)
(See instructions):

IF ANY

DOCKET NUMBER

NDGE
OF RECORD

06/04/2019

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG.JUDGE

Q Yes

~B(No

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 4 of 22
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DESIGNATION FORM
(
to be used by counsel or pro se plainti,/J'to indicate the category ofthe casefor the purpose ofassignment to the appropriate calendar)

Address ofPlaintiff:

U.S. D2pt. Of ~UStIC@, 999 18th Street, South Terrace, Suite 370, Denver CO 80202

Hollaender, 1818 Market Street, Suite 2610, Philadelphia, PA 19103-5319
Address ofDefendant: Langsam Stevens Silver &

Delaware County and Philadelphia County

Place of Accident, Incident or Transaction:

RELATED CASE,IFANY.•
Case Number:

Date Terminated:

Judge:

Civil cases are deemed related when Yes is answered to any ofthe following questions:
1.

Is this case related to property included in an earlier numbered suit pending or within one year
previously terminated action in this court?

Yes ❑

No

2.

Does this case involve the same issue offact or grow out ofthe same transaction as a prior suit
pending or within one year previously terminated action in this court?

Yes ❑

No

3.

Does this case involve the validity or infringement of a patent already in suit or any earlier
numbered case pending or within one year previously terminated action of this court?

Yes ❑

No

4.

is this case a second or successive habeas corpus, social security appeal, or pro se civil rights
case filed by the same individual?

Yes ❑

No

I certify that, to my knowledge, the within case ❑ is /[~ is not related to any case now pending or within one year previously terminated action in
this court except as noted above.

DATE: 06/05/2019

CO Bar # 30394

~~~j~~~'
/Pro Se Plaintiff

Attorney I.D. #(ifapplicable)

CIVIL:(Place a ~ in one category only)
A.

B.

Federal Question Cnses:

❑ 1.
❑ 2.
❑ 3.
❑ 4.
5.
6.
❑ 7.
8.
9.
10.
1 1.

Indemnity Contract, Marine Contract, and All Other Contracts
FELA
Jones Act-Personal Injury
Antitrust
Patent
Labor-Management Relations
Civil Rights
Habeas Corpus
Securities Acts) Cases
Social Security Review Cases
All other Federal Question Cases
(
Please specify):
CERCLA,42 U.S.C. § 9601

Diversity Jurisdiction Cnses:

❑

1.
2.
❑ 3.
4.
5.
6.
7.
8.
9.

Insurance Contract and Other Contracts
Airplane Personal Injury
Assault, Defamation
Marine Personal Injury
Motor Vehicle Personal Injury
Other Personal Injury (Please specify):
Products Liability
Products Liability —Asbestos
All other Diversity Cases
(
Please specify):
U.S. Government Plaintiff

ARBITRATION CERTIFICATION
(The e,JJ"ect ofthis certiftcation is to remove the casefrom eligibilityfor arbitration.)

John N . M oseato

I

,counsel of record or pro se plaintiff, do hereby certify:

Pursuant to Local Civil Rule 53.2, § 3(c)(2), that to the best of my knowledge and belief, the damages recoverable in this civil action case
exceed the sum of$150,000.00 exclusive of interest and costs:
❑ Relief other than monetary damages is sought.

CO Bar # 30394

DATE: 06/04/2019
Attorney- t-Law /Pro e Plaintif)'
NOTE: A trial de novo will be a trial by jury only if there has been compliance with F.R.C.P. 38.
Civ. 609(S/2018)

Attorney /.D. #(ifapplicable)

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 5 of 22

JEFFREY BOSSERT CLARK
Assistant Attorney General
Environment &Natural Resources Division
United States Department of Justice
JOHN N. MOSCATO
Senior Counsel
Environmental Enforcement Section
United States Department of Justice
999 18th Street, South Terrace, Suite 370
Denver, Colorado 80202
Telephone:(303)844-1380
Facsimile:(303) 844-1350
Email:john.moscato@usdoj.gov
Colorado Bar No. 30394
Attorneys for Plaintiff United States of America
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Plaintiff,
*

v.
THE CITY OF PHILADELPHIA and
THE CITY OF PHILADELPHIA
REDEVELOPMENT AUTHORITY
Defendants.

COMPLAINT

Complaint in
United States v. The City of Philadelphia, et al.
1

Case No.

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 6 of 22

The United States of America ("United States"), by authority of the Attorney General and
through the undersigned attorneys, acting at the request of the Administrator of the United States
Environmental Protection Agency("EPA")alleges as follows:
PRELIMINARY STATEMENT
This is a civil action under Section 107(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"),42 U.S.C. §
9607(a), brought by the United States against the City of Philadelphia ("the City") and the City
of Philadelphia Redevelopment Authority("PRA")(collectively, the "Defendants")for the
recovery of past response costs incurred by the EPA in response to releases or threats of release
of"hazardous substances," as defined in 42 U.S.C. § 9601(14), at and from the Clearview
Landfill. The waste, soils, and shallow leachate associated with the Clearview Landfill comprise
Operable Unit 1 ("OU 1")of the Lower Darby Creek Area Superfund Site (the "Site"). Pursuant
to Section 113(g)(2) of CERCLA,42 U.S.C. § 9613(g)(2), and 28 U.S.C. § 2201, the United
States also seeks a declaratory judgment on Defendants' liability for future response costs to be
incurred by the EPA in connection with OU 1 that will be binding on any subsequent action or
actions to recover further response costs in connection with the Site.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§ 9607 and 9613(b).
This Court has personal jurisdiction over the Defendants as each Defendant was
present in the Commonwealth at the time the violations alleged in this Complaint occurred and

Complaint in
United States v. The City ofPhiladelphia, et al.

2

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 7 of 22

each Defendant "[t]ransact[ed]... business in th[e] Commonwealth," or "caus[ed] harm ... by
an act or omission in this Commonwealth." 42 Pa. Cons. Stat. Ann. § 5322.
4.

Venue is proper in the Eastern District of Pennsylvania pursuant to 28 U.S.C.

§§1391(b)and (c) and 42 U.S.C. § 9613(b), because the claim arose, and the threatened and
actual releases of hazardous substances occurred, in this District.
DEFENDANTS
5.

The City is an incorporated municipality within the Commonwealth.

6.

The PRA is a public government agency charged with the redevelopment ofthe

City. The PRA was established on October 2, 1945 pursuant to the Urban Redevelopment Law
of 1945.
FACTUAL BACKGROUND
7.

The Clearview Landfill is located on the east side of Darby Creek near the

intersection of 84th and Lindbergh Boulevard. The historical footprint of the landfill straddles
the Delaware County and Philadelphia County borders and includes portions of the residential
properties to the east of the Clearview Landfill (hereafter the "Eastwick Neighborhood")
8.

The Clearview Lana Development Company operated the Clearview Landfill as

an unlicensed disposal facility for commercial, industrial, institutional, and municipal waste from
the early 1950s until approximately 1973 when the Pennsylvania Department of Environmental
Resources("PADER")ordered it to cease all waste disposal activities.
9.

Wastes disposed of at the Clearview Landfill contained hazardous substances

within the meaning of 42 U.S.C. § 9601(14)including but not limited to heavy metals, volatile

Complaint in
United States v. The City of Philadelphia, et al.

3

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 8 of 22

organic compounds, semi-volatile organic compounds, polyaromatic hydrocarbons, and
pesticides at levels that present a threat to human health and the environment.
10.

EPA conducted investigations within and around the Clearview Landfill in 1983

and 1984 and collected surface water, sediment, soil, and leachate samples from the landfill and
Darby Creek. The analytical results from that sampling detected polychlorinated biphenyls
("PCBs")and polyaromatic hydrocarbons("PAHs")in leachate samples, PAHs in soil samples,
and PCBs in both stream and soil samples. PAHs and PCBs are "hazardous substances" within
the meaning of42 U.S.C. § 9601(14).
1 1.

In September 1990, EPA observed areas of recent dumping throughout the

Clearview Landfill and identified three leachate seeps which were draining into Darby Creek on
the western edge of the landfill. Hazardous substances such as volatile organic compounds
("VOCs"), semi-volatile organic compounds("SVOCs"), and PAHs were detected in the
leachate seeps and in sediments downstream from the landfill. VOCs and SVOCs are
"hazardous substances" within the meaning of 42 U.S.C. § 9601(14).
12.

In May 1998, EPA conducted an area-wide investigation in the vicinity of the

Clearview Landfill l~ identify possible threats to human health and the environment posed by
waste sources along llarby Creek. During this investigation, signs of erosion on the landfill
cover along the creek banks, exposed debris piles, and leachate seeps were observed. Soil and
waste samples collected showed contamination with elevated levels of hazardous substances
including, but not limited to, heavy metals (lead, mercury, cadmium, and zinc), PAHs,and
PCBs. Heavy metals found at OU 1 are "hazardous substances" within the meaning of 42 U.S.C.
9601(14).

Complaint in
United States v. The City of Philadelphia, et al.

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 9 of 22

13.

In 2000, EPA conducted additional sampling at the Clearview Landfill, the

Eastwick Neighborhood, and the Eastwick Recreation Center to further characterize the nature
and extent of contamination. Samples of surface and subsurface soil, soil gas, shallow
groundwater, residential tap water, and creek sediment were collected. Upon analysis, samples
from the Clearview Landfill indicated the presence of hazardous substances including, but not
limited to, several VOCs,SVOCs,PCBs, heavy metals, and a pesticide at elevated levels in soils
and groundwater. Several groundwater samples also contained high levels of arsenic. Upon
analysis, soil samples taken in the Eastwick Neighborhood and in the vicinity ofthe Eastwick
Recreation Center indicated the presence above screening levels of several SVOCs, metals, and one
type ofPCB mixture. VOCs,SVOCs,PCBs, heavy metals are "hazardous substance" within the
meaning of42 U.S.C. § 9601(14). Pesticides also have constituents which are hazardous substances
under CERCLA.
14.

As a result of EPA's investigations, on June 14, 2001, the Clearview Landfill,

including portions ofthe Eastwick Neighborhood and the Eastwick Recreation Center were
added to the National Priorities List(NPL)as OU 1 ofthe Site. 66 Fed. Reg. 32,235 (June 14,
2001).
15.

EPA initiated a Remedial Investigation ("RI")and feasibility Study("rS") at

the Clearview Landfill in March 2001. The RI was completed and a final report submitted in
May 2011. An addendum to the RI was submitted in August 2012 and the Final FS Report was
submitted in October 2012. The EPA-approved RI Report identified elevated levels of numerous
hazardous substances present in the landfill waste and soils including inorganics (lead, arsenic,
aluminum, iron, cadmium,copper, and zinc), SVOCs(particularly PAHs,such as
benzo(a)pyrene),PCB-1260(Aroclor) which exceeded EPA Principle Threat Waste Criteria, and
Complaint in
United States v. The City of Philadelphia, et al.

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 10 of 22

several pesticides. These same hazardous substances were also found in the Eastwick City Park
although at a lower frequency of screening criteria exceedances and generally at lower
concentrations. PAHs were the most prominent hazardous substances detected at elevated levels
in the Eastwick Neighborhood. PCB-1260 was also detected at several locations. The EPAapproved RI Report ultimately identified unacceptable potential risks or hazards to current and
future human and ecological receptors due to the presence of OU 1-related hazardous substances
in soils, groundwater, and fish tissue.
16.

On September 27, 2011, EPA Region III approved a Request for Funding of a

Removal Action ("Action Memo")requesting funding and approval of a Removal Response
Action to address the PCB contamination on portions of the Site. On April 12, 2012, EPA
Region III amended the Action Memorandum to request additional funding, a change in scope of
the Removal Action, and exemption to the $2 million and 12 month statutory limits. A total of
3,955.9 tons of soils regulated by the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629
were removed from the Site. On July 21, 2016, EPA approved a Request for Increased Funding
and a Change of Scope for a Removal Action at OU 1 to address PAH and lead contamination in
soils in the Eastwick Neighborhood. Between July 2016 and June 30, 2017, EPA removed
contaminated soils from 31 residential yards in the Eastwick Neighborhood.
17.

In September 2014, EPA issued the Record of Decision for the Lower Darby

Creek Area Superfund Site, OU 1 - Clearview Landfill Soils &Waste("OU 1 ROD"). The
selected remedy for OU 1 includes but is not limited to:
a. installation, maintenance and monitoring of an evapotranspiration ("ET") Cover
System over approximately 50 acres, including relocation of on-site businesses and

Complaint in
United States v. The City of Philadelphia, et al.
0

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 11 of 22

demolition of all structures within the ET Cover boundary, Site grading, storm water
controls and erosion controls along the east bank of Darby Creek;
b. excavation and consolidation of wastes and soils containing hazardous substances
above cleanup levels within and beneath the ET Cover;
c. removal and off-site disposal ofPCB principal threat wastes;
d. construction and maintenance of a leachate collection trench along the landfill creek
banks down to the mean high tide elevation ofthe creek and construction, maintenance,
and monitoring of engineered wetlands to treat hazardous substances to surface water
discharge requirements;
e. long-term monitoring of groundwater, leachate, landfill gas, surface water, and
sediment, to evaluate remedy performance and effectiveness; and
f. land and groundwater use restrictions to be implemented and maintained through
institutional controls("ICs") and engineering controls to protect the integrity ofthe
selected remedy including the ET Cover,leachate collection trench, engineered
wetlands, and prevent exposure to soils outside ofthe ET Cover above cleanup levels.
18.

The OU 1 ROD selected soil cleanup levels for the following hazardous

substances: cadmium,copper, lead, zinc, benzo(a)anthracene, benzo(a)pyrene,
benzo(b)fluoranthene, benzo(k)fluoranthene, dibenzo(a,h)anthracene, indeno(1,2,3-cd)pyrene,
total PAHs, high molecular weight PAHs,PCB-Aroclors 1260 and 1254.
19.

Between February 2015 and March 2017,EPA conducted sampling of

approximately 105 residential yards as part ofthe OU 1Pre-Design Investigation ("PDI"). The
purpose ofthe sampling was to delineate the area of residential properties within the Eastwick

Complaint in
United States v. The City ofPhiladelphia, et al.

7

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 12 of 22

Neighborhood that were impacted by OU 1 contaminants in soils. Benzo(a)pyrene and
dibenzo(a,h)anthracene were the hazardous substances most frequently identified above the OU
1 ROD soil cleanup levels; they were also present at the highest concentrations relative to the
cleanup levels. Detections of heavy metals and PCBs above soil cleanup levels were infrequent.
20.

On January 4,2017,EPA finalized a second Memorandum to the Site File

documenting anon-significant change to the selected remedy for OU 1. This change was
necessary because the OU 1 ROD did not include a cost estimate addressing all residential yards
with soils contaminated with hazardous substances, as all residential yards with contaminated
soils had not been identified at the time of the OU 1 ROD finalization. The purpose of the
second Memorandum was to document and include these additional estimated costs to address
contaminated soils at all identified residential properties impacted by OU 1.
21.

In August 2017,EPA initiated the Remedial Action for OU 1 commencing with

the excavation of residential yards in the Eastwick Neighborhood with one or more hazardous
substances exceeding the soil cleanup levels from the OU 1 ROD and beginning the process for
the permanent relocation ofthe businesses currently operating on the Clearview Landfill.
22.

EPA and the Department of Justice have undertaken other response activities in

connection with OU 1 including, but not limited to, enforcement related activities.
23.

Actions taken under Sections 104 and 107 of CERCLA,42 U.S.C. §§ 9604 and

9607,in connection with OU 1 have caused the United States to incur response costs of,
approximately, $19,846,689.771. The United States' response costs at OU 1 have been incurred

1 The OU 1 costs include $12,602,399.32 in OU 1 related remedial costs through 11/30/2016,
$7,244,290.45 in OU 1 Removal costs through 6/27/2017. In addition, through 11/30/2016 EPA
Complaint in
United States v. The City ofPhiladelphia, et al.

8

 Case 2:19-cv-02433-MMB Document 1 Filed 06/05/19 Page 13 of 22

in a manner not inconsistent with the National Oil and Hazardous Substances Pollution
Contingency Plan ("National Contingency Plan" or "NCP"),40 C.F.R. Part 300.
24.

In approximately 1958,PRA acquired approximately 2,300 acres located adjacent

to the North and East boundaries of the Clearview Landfill which came to be known as the
"Eastwick Redevelopment Area." Prior to and after the time the PRA acquired the Eastwick
Redevelopment Area, hazardous substances, within the meaning of 42 U.S.C. § 9601(14),from
the Clearview Landfill were, directly or indirectly, released onto or directly disposed of on those
portions of the Eastwick Redevelopment Area immediately abutting the Clearview Landfill. On
information and belief, development activities undertaken by PRA between approximately 1958
to the early 1970s on the Eastwick Redevelopment Area that immediately abutts the North and
East boundaries of the Clearview Landfill resulted in the further disposal or re-disposal of
hazardous substances on property within the Eastwick Neighborhood.
25.

On September 22, 1969, the City acquired from the PRA title to approximately 27

acres of land within the Eastwick Redevelopment Area. Land acquired by the City was located
immediately adjacent to the North and East boundaries of the Clearview Landfill (hereafter, the
"City Park Property"). At and after the time the City acquired the City Park Property, hazardous
substances, within the meaning of42 U.S.L. § y6U1(14), from the (;learview Landfill were,
directly or indirectly, released onto, or directly disposed of on portions of the City Park Property.
As of the date of this complaint, the City remains the current owner of the City Park Property.

has incurred $2,826,446.04 in Site-wide related costs, a portion of which are attributable to OU
1.
Complaint in
United States v. The City of Philadelphia, et al.
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26.

From approximately 1967 to 1973, the City arranged for and disposed of

municipal solid waste, incinerator ash, and incinerator residue at the Clearview Landfill. Upon
information and belief, the United States asserts that the incinerator ash and incinerator residue
disposed of by the City at the Clearview Landfill contained hazardous substances within the
meaning of42 U.S.C. § 9601(14), including but not limited to heavy metals, such as lead and
cadmium, as well as dioxins, PAHs, and organic and inorganic chemicals not completely
destroyed by the incineration process.
27.

Neither the City nor the PRA have taken any "response," within the meaning of

42 U.S.C. § 9601(25), to address the hazardous substances at the Clearview Landfill, City Park
Property, or the Eastwick Neighborhood.
FEDERAL LAW GOVERNING CLAIM FOR RELIEF
28.

Section 104(a)(1) of CERCLA,42 U.S.C. § 9604(a)(1), provides in pertinent part:

Whenever[]any hazardous substance is released or there is a substantial threat of
such a release into the environment ...the President is authorized to act,
consistent with the national contingency plan, to remove or arrange for the
removal of, and provide for remedial action relating to such hazardous substance .
.. at any time (including its removal from any contaminated natural resource), or
take any other response measure consistent with the national contingency plan
which the President deems necessary to protect the public health or welfare or the
environment.
29.

Section 104(b)(1) of CERCLA,42 U.S.C. § 9604(b)(1), provides in pertinent part:

Whenever the President is authorized to act pursuant to subsection (a) of this
section [i.e. 42 U.S.C. § 9604(a)]... he may undertake such investigations,
monitoring, surveys, testing, and other information gathering as he may deem
necessary or appropriate to identify the existence and extent of the release or
threat thereof, the source and nature of the hazardous substances ... involved, and
the extent of danger to the public health or welfare or to the environment. In
addition, the President may undertake such planning, legal, fiscal, economic,
Complaint in
United States v. The City of Philadelphia, et al.

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engineering, architectural, and other studies or investigations as he may deem
necessary or appropriate to plan and direct response actions, to recover the costs
thereof, and to enforce the provisions of this chapter.
30.

The President has delegated his authority under Sections 104(a) and (b)of

CERCLA,42 U.S.C. §§ 9604(a) and (b), to the Administrator of the EPA to arrange for the
cleanup of hazardous waste or to conduct investigations and studies as necessary to determine
the need for, and extent of, such a cleanup.
31.

Section 107(a) of CERCLA,42 U.S.C. § 9607(a), provides in pertinent part:

Notwithstanding any other provision or rule of law, and subject only to the
defenses set forth in subsection (b)of this section [i.e. 42 U.S.C. § 9607(b)] .. .
(1)the owner and operator of a ...facility,
(2)any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of,
(3)any person who by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for transport for
disposal or treatment, of hazardous substances owned or possessed by
such person, ... at any facility ... owned or operated by another party or
entity and containing such hazardous substances, and
(4)any person who accepts or accepted any hazardous substances for
transport to disposal or treatment facilities, incineration vessels or sites
selected by such person, from which there is a release, or a threatened
release, which causes the incurrence of response costs, of a hazardous
substance, shall be liable for (A)all costs of removal or remedial action incurred by the
United States Government or a State ...not inconsistent
with the national contingency plan; .. .
(D)the costs of any health assessment or health effects
study carried out under section 9604(1) of this title.
32.

The National Contingency Plan provides the "procedures and standards for

responding to releases of hazardous substances, pollutants, and contaminants ..." 42 U.S.C. §
9605(a). The NCP is codified at 40 C.F.R. Part 300.
Complaint in
United States v. The City of Philadelphia, et al.
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33.

Section 107(a)(4) of CERCLA,42 U.S.C. § 9607(a)(4), also provides that "[t]he

amounts recoverable in an action under this section shall include interest on the amounts
recoverable under subparagraphs(A)through (D)."
34.

Liability under Section 107(a) of CERCLA,42 U.S.C. § 9607(a), is strict and

joint and several.
35.

Section 113(g)(2) of CERCLA,42 U.S.C. § 9613(g)(2), entitles the United States

to obtain a declaratory judgment on liability for future response costs: "[T]he court shall enter a
declaratory judgment on liability for response costs or damages that will be binding on any
subsequent action or actions to recover further response costs or damages."
FIRST CLAIM FOR RELIEF
(Recovery of Response Costs from the City under CERCLA § 107)
36.

The United States re-alleges and incorporates by reference paragraphs 1 through

35, above, as if fully set forth below.
37.

The Site is a "facility" as that term is defined in Section 101(9)of CERCLA,42

U.S.C. § 9601(9), and as that term is used in Section 107 of CERCLA,42 U.S.C. § 9607.
38.

VOCs,SVOCs,PCBs,PAHs,and heavy metals present on OU 1 are "hazardous

substances" within the meaning of Sections 101(14)and 107(a) of CERCLA,42 U.S.C. §§
9601(14)and 9607(a).
39.

There have been and are "releases" of hazardous substances within the meaning

of Sections 101(22)and 107(a) of CERCLA,42 U.S.C. §§ 9601(22), and 9607(a), on and from
the Site.
40.

Hazardous substances were disposed of at the Site within the meaning of

Sections 101(29)and 107(a) of CERCLA,42 U.S.C. §§ 9601(29) and 9607(a).
Complaint in
United States v. The City ofPhiladelphia, et al.

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41.

As a result of the disposal and releases or threatened releases of hazardous

substances from OU 1, the United States has incurred and will continue to incur "removal" and
"remedial action" costs, to "respond" to the threats to the environment and human health and
public welfare posed by OU 1. See Sections 101(23),(24) and (25)of CERCLA,42 U.S.C. §§
9601(23),(24) and (25), and Section 107(a) of CERCLA,42 U.S.C. § 9607(a).
42.

The United States has undertaken and may undertake further response actions at

OU 1 to protect the environment and human health and public welfare, including removal and
remedial actions, in response to releases or threatened releases of hazardous substances,
pollutants, or contaminants within the meaning of Sections 104 and 107 of CERCLA,42 U.S.C.
§ 9604 and 9607.
43.

The City is a "person" within the meaning of Sections 101(21) and 107 of

CERCLA,42 U.S.C. §§ 9601(21) and 9607.
44.

The City is currently the owner of the City Park Property that is within OU 1 and

upon which hazardous substances are present. The City is therefore jointly and severally liable
under Section 107(a)(1), 42 U.S.C. § 9607(a)(1), for all OU 1 response costs associated with the
City Park Property, including costs of removal and remedial actions incurred by the United
States not inconsistent with the National (;ontingency Ylan, plus interest on those costs.
45.

The City was the owner of the City Park Property that is within OU 1 and upon

which hazardous substances were disposed of during the period of City ownership. The City,
therefore, is jointly and severally liable under Section 107(a)(2), 42 U.S.C. § 9607(a)(2), for all
OU 1 response costs associated with the City Park Property, including costs of removal and

Complaint in
United States v. The City of Philadelphia, et al.

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remedial actions incurred by the United States not inconsistent with the National Contingency
Plan, plus interest on those costs.
46.

The City by contract, agreement, or otherwise, arranged for the disposal of

incinerator ash at, and transported incinerator ash for disposal to, the Clearview Landfill. The
incinerator ash contained hazardous substances. The City, therefore, is jointly and severally
liable under Sections 107(a)(3) and (4), 42 U.S.C. §§ 9607(a)(3) and (4), for all OU 1 response
costs, including costs of removal and remedial actions incurred by the United States not
inconsistent with the NCP,plus interest on those costs.
47.

The EPA continues to incur response costs in responding to releases or threatened

releases of hazardous substances on OU 1.
48.

The response actions taken by the United States on OU 1 were and are necessary

to protect the public health or welfare or the environment, and were not inconsistent with the
NCP.
49.

The United States has satisfied any and all conditions precedent to the response

actions taken and to recovery of its costs incurred under Section 107 of CERCLA,42 U.S.C. §
9607.
SU.

'The City is jointly and severally liable to the United States for all response action

costs, not inconsistent with the NCP,plus interest, incurred or to be incurred by the United States
in connection with the remediation of OU 1 including an allocated share of Site-wide response
costs, enforcement costs, and prejudgment interest on all such costs, pursuant to Sections 107(a)
of CERCLA,42 U.S.C. § 9607(a).
SECOND CLAIM FOR RELIEF
(Recovery of Response Costs from the PRA under CERCLA §§ 107)

Complaint in
United States v. The City of Philadelphia, et al.

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51.

The United States re-alleges and incorporates by reference paragraphs 1 through

50, above, as if fully set forth below.
52.

The PRA is a "person" within the meaning of Sections 101(21) and 107 of

CERCLA,42 U.S.C. §§ 9601(21) and 9607.
53.

Prior to the time PRA acquired the Eastwick Redevelopment Area, and during the

time PRA owned the Eastwick Redevelopment Area, hazardous substances, within the meaning
of42 U.S.C. § 9601(14), from the Clearview Landfill were, directly or indirectly, released onto
or directly disposed of on those portions of the Eastwick Redevelopment Area that immediately
abutted the Clearview Landfill. Because the PRA owned the property at the time hazardous
substances were disposed there, it is jointly and severally liable under Section 107(a)(2), 42
U.S.C. § 9607(a)(2), for all OU 1 response costs, including costs of removal and remedial actions
not inconsistent with the National Contingency Plan, plus interest on those costs, incurred by the
United States in connection in that portion of the Eastwick Neighborhood owned by the PRA
within OU 1.
54.

Between approximately 1958 and the early 1970s, development activities

undertaken by the PRA in the Eastwick Neighborhood within OU 1 resulted in the disposal or redisposal of hazardous substances on portions of OU 1. Because the PRA disposed of, or caused
the re-disposal of, hazardous substances in the Eastwick Neighborhood within OU 1, it is
therefore jointly and severally liable as a past operator under Section 107(a)(2), 42 U.S.C. §
9607(a)(2), for all OU 1 response costs, including costs of removal and remedial actions not
inconsistent with the National Contingency Plan, plus interest on those costs, incurred by the

Complaint in
United States v. The City of Philadelphia, et al.

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United States in connection with the portion of the Eastwick Neighborhood within OU 1 owned
by the PRA.
55.

The EPA continues to incur response costs in responding to releases or threatened

releases of hazardous substances on and from that portion of the Eastwick Neighborhood within
OU 1 owned by the PRA.
56.

The response actions taken by the United States in the portion of the Eastwick

Neighborhood within OU 1 were necessary to protect the public health or welfare or the
environment, and were not inconsistent with the NCP.
57.

The United States has satisfied any and all conditions precedent to the response

actions taken and to recovery of its costs under Section 107 of CERCLA,42 U.S.C. § 9607.
58.

The PRA is jointly and severally liable to the United States for all response action

costs, not inconsistent with the NCP,plus interest, incurred or to be incurred by the United
States, in connection with the remediation of that portion ofthe Eastwick Neighborhood located
within OU 1 including Site wide response costs, enforcement costs, and prejudgment interest on
all such costs, pursuant to Sections 107(a) of CERCLA,42 U.S.C. §§ 9607(a).
PRAYER FOR RELIEF
WH~i~r'Ul~;, the United States requests that the Court enter a judgment against the
Defendants,jointly and severally, as follows:
A. Enter judgment in favor of the United States against Defendants pursuant to
Sections 107 of CERCLA,42 U.S.C. § 9607(a) ordering Defendants to pay
response costs, including interest, incurred by the United States in conducting
response activities in connection with OU 1;

Complaint in
United States v. The City of Philadelphia, et al.

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B. Enter a declaratory judgment pursuant to Sections 113(g)(2) of CERCLA,42
U.S.C. § 113(g)(2), finding Defendants liable in any subsequent action or actions
for further response costs incurred in connection with OU 1 by the United States;
C. Award the costs of this action to the United States; and
D. Grant such other and further relief as the Court deems just and proper.
Dated: June 4, 2019.
Respectfully Submitted,
FOR THE UNITED STATES OF AMERICA
JEFFREY BOSSERT CLARK
Assistant Attorney General
Environment &Natural Resources Division
United States Department of Justice

;Y6~IN N.1V~SSCATO
Senior Counsel
Environmental Enforcement Section
United States Department of Justice
999 18th Street, South Terrace, Suite 370
Denver, Colorado 80202
Telephone:(303)844-1380
Facsimile:(303) 844-1350
Email:john.moscato@usdoj.gov
Colorado Bar No. 30394
OF COUNSEL
Donzetta Thomas
Senior Assistant Regional Counsel &
Office of Regional Counsel(Mailcode: 3RC50)
US EPA, Region III
1650 Arch Street, Philadelphia, PA 19103

Complaint in
United States v. The City of Philadelphia, et al.

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CERTIFICATE OF SERVICE
I hereby certify that on June 5, 2019, the foregoing was filed electronically and is
available for viewing and downloading from the ECF system. I further certify that a copy was
mailed by U.S. postal Service first class mail to the following party:

Larry Silver
Langsam Stevens Silver & Hollaender
1818 Market Street
Suite 2610
Philadelphia, PA 19103-5319

/s/ John N. Moscato