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1 FILED 2008 Aug-12 AM 10:26 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) CIVIL ACTION NO. ) v. ) ) ALABAMA PLATING COMPANY, INC., ) COMPLAINT the ESTATE of JAMES M. ROWE, JR., ) and ) JAMES M. ROWE, 111, ) Defendants. Plaintiff, the United States of America ("United States"), by the authority of the Attorney General of the United States, and on behalf of the United States Environmental Protection Agency ("EPA") alleges as follows: INTRODUCTION Courthouse News Service 1. This is a civil action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C et seq., as amended, for recovery of costs incurred by the United States for actions taken in response to releases and threatened

2 releases of hazardous substances at the Alabama Plating Superfund Site ("Site"), which was formerly operated by the Alabama Plating Company, Inc. ("APC") and located in Vincent, Shelby County, Alabama. The action also seeks a declaratory judgment pursuant to Section 113(g)(2) of CERCLA, 42 U.S.C. Section 9613(g)(2), that the defendants are liable under Section 107 of CERCLA, 42 U.S.C , for further response costs at the Site that are not inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 C.F.R. Part 300. JURISDICTION AND VENUE 2. This Court has jurisdiction over this action and the parties pursuant to Sections 107(a) and 113(b) of CERCLA, 42 U.S.C. $5 9607(a) and 9613(b), and 28 U.S.C. $ and Venue is proper in this District pursuant to Section 113(b) of CERCLA, 42 U.S.C (b), and 28 U.S.C (b) and (c), because the claims arose in this District and releases andlor threatened releases of hazardous substances that give rise to the United States' claims occurred in this District. DEFENDANTS 4. APC, a metal plating business that is now inactive, is a Delaware corporation authorized to do business in the State of Alabama. APC operated the Site and transacted business in Vincent, Shelby County, Alabama. 5. The Estate of James M. Rowe, Jr. is named as a defendant because James M. Rowe, Jr. Is now deceased. James M. Rowe, Jr. resided in the State of Alabama until February

3 1999, and owned property and transacted business in Vincent, Shelby County, Alabama, at times relevant to this Complaint. 6. James M. Rowe I11 resided in the State of Alabama until 1998, owned property there until May 1999, transacted business there at times relevant to this Complaint, and otherwise has sufficient minimum contacts with the State of Alabama. GENERAL ALLEGATIONS A. THE SITE. 7. The Alabama Plating Superhnd Site (the "Site") comprises several parcels: a Main Facility that includes parcels on opposite sides of the street; and a Satellite Facility. The Main Facility is located at the intersection of Highway 231 and County Road 60 in Vincent, Alabama. The Satellite Facility, situated on an approximately 27.3 acre parcel, consists of an estimated 5 acres that APC used for operations and waste disposal. On all these parcels, EPA has discovered contamination from hazardous substances consistent with that generated by APCYs manufacturing operations. 8. At times relevant to this Complaint, the real property on which the Main Facility is located was owned by James M. Rowe, Jr. However in May 1999, the property was sold, pursuant to Code ofalabama (1975 West), to the State of Alabama in order to satisfy a tax lien that was placed upon the property by the Shelby County Tax Collector's Office, for unpaid 1998 taxes. 9. APC began operating a zinc electroplating business at the Main Facility in Operations were expanded to include cadmium and copper electroplating and hot-dip galvanizing. Electroplating was discontinued at the Main Facility in March From 1971 to

4 1996, APC used the Satellite Facility at various times for facility operations, such as hot-dip galvanizing, preliminary and finishing metal cleaning, warehousing waste and finished products for both the Main and Satellite Facilities, and waste disposal in an unauthorized onsite landfill. Hot-dip galvanizing continued until 1996, when APC ceased all business and abandoned both the Main Facility and the Satellite Facility. B. JAMES M. ROWE, JR. 10. At all times during APC's operations, James M. Rowe, Jr. was the owner of the real property where the Main Facility is located. 11. At all times relevant to this Complaint, James M. Rowe, Jr. was the President of APC and the principal shareholder of APC, owning 70% of APC's stock. 12. At all times relevant to this Complaint, James M. Rowe, Jr. was an operator of the Site. He ran the day-to-day operations of both the Main and Satellite Facilities, including making the waste management decisions for both Facilities. C. JAMES M. ROWE I At times relevant to this Complaint, James M. Rowe I11 was the Vice-President of APC and a 30% shareholder of APC stock. 14. At times relevant to this Complaint, James M. Rowe I11 was an operator of the Site. He shared the authority and responsibility of running and supervising the day-to-day operations of both the Main and Satellite Facilities, including making waste management decisions for both Facilities.

5 D. EPA'S RESPONSE ACTIONS AT THE SITE 15. In July 1998, Alabama Department of Environmental Management ("ADEM") referred the Site to EPA's Emergency Response and Removal Branch, and recommended that the Site be considered a high priority for removal action of abandoned wastes and contaminated soil. ADEM noted that its prior investigations of the Main Facility indicated numerous areas which caused the release or posed a threat of release of hazardous substances into the environment and exposure to nearby residents from plating wastes. 16. In 1998, EPA conducted a limited emergency removal of abandoned wastes and contaminated soil at the Main Facility and determined that the Main Facility posed an imminent and substantial endangerment to public health or welfare or the environment and met the criteria for a time-critical removal action under the NCP, 40 C.F.R. Part 300. EPA also determined that hazardous conditions extended beyond the Main Facility to two adjacent properties located to the east and northeast of the parcel containing the Main Facility buildings. EPA's testing of groundwater and soil samples taken at the Main Facility revealed that, when APC abandoned the Site in 1996, it left behind sludge, soil, sediment, and/or groundwater contaminated with hazardous substances, including, but not limited to, arsenic, cyanide, cadmium, chromium, lead, and zinc. 17. To date, EPA's response activities at the Main Facility have: secured the facility to prevent trespasser access; characterized and segregated the hazardous substances found onsite; decontaminated or disposed of vats, tanks, and other containers found onsite; dismantled and disposed of buildings or structures onsite that cannot be effectively decontaminated; arranged for the offsite transportation and disposal of all containerized wastes, consolidated sludge, building

6 and site debris; and excavated and performed onsite treatement and/or arranged for offsite transport and authorized disposal of all APC contaminated soils, sediments, and onsite buried waste. 18. Also in 1998, ADEM discovered elevated and measurable levels of lead, zinc, arsenic, chromium, and other metals in soil samples taken from the Satellite Facility. In 1999, EPA secured the Satellite Facility, and determined that the Satellite Facility posed an imminent and substantial endangerment to public health or welfare or the environment and met the criteria for a time-critical removal action under the NCP, 40 C.F.R. Part 300. Accordingly, in February 1999 EPA incorporated the Satellite Facility as part of the ongoing removal action at the Main Facility. EPA response activities at the Satellite Facility have included: removal actions, installation of fencing to secure the area of concern, installation of warning signs at the retention pond that establish the pond as potentially contaminated, soil sampling and geo-probe sampling to characterize conditions onsite, and recovery, repackaging, and preparation for offsite disposal of zinc dross drums stored on the property. 19. Response activities continue at the Site, including identification and characterization of the extent and magnitude of Site-related hazardous substances, pollutants, and contaminants. 20. As of February 1, 2008, the United States has incurred at least $12 million in costs for response actions at the Site and continues to incur these response costs as a result of the releases and threatened releases of hazardous substances at or from the Site.

7 CERCLA LIABILITY 2 1. Section 107(a) of CERCLA, 42 U.S.C (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 -- (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (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, by any other party or entity, at any facility... owned or operated by another party or entity and containing such hazardous substances 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.... *** The amounts recoverable in an action under this section shall include interest on the amounts recoverable under subparagraphs (A) through (D). pertinent part: 22. Section 113(g)(2)(B) of CERCLA, 42 U.S.C (g)(2)(B), provides in In any such action described in this subsection [an action for recovery of costs under Section 107 of CERCLA], the 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.

8 RECOVERY OF RESPONSE COSTS UNDER SECTION 107(a) AND DECLARATION OF FUTURE LIABILITY 23. Paragraphs 1 through 22 are realleged and incorporated herein by reference. 24. There have been "releases," "threatened releases" and "disposals" of hazardous substances at or from the Site, as those terms are defined in Sections 10 l(29) and lol(22) of CERCLA, 42 U.S.C (29) and (22). 25. Cadmium, arsenic, chromium, lead, cyanide, and zinc are "hazardous substances" within the meaning of Section lol(14) of CERCLA, 42 U.S.C (14). 26. At the time hazardous substances were released or disposed of at the Site, APC was an "owner" and/or "operator" within the meaning of Section 10 l(20) and a "person" within the meaning of Section 10 l(2 1) of CERCLA, 42 U.S.C l(20) and (2 1). 27. At the time hazardous substances were released or disposed of at the Site, James M. Rowe, Jr. was an "owner and/or operator" within the meaning of Section 10 l(20) and a "person" within the meaning of Section lol(21) of CERCLA, 42 U.S.C (20) and (21). 28. At the time hazardous substances were released or disposed of at the Site, James M. Rowe 111 was an "operator" within the meaning of Section lol(20) and a "person" within the meaning of Section 10 l(21) of CERCLA, 42 U.S.C. $5 960 l(20) and (2 1). 29. The Site, which contains hazardous substances, is a "facility" within the meaning of Section 101(9) of CERCLA, 42 U.S.C (9). 30. EPA has undertaken various activities to control site access and to assess and respond to environmental harm and risks at the Site. These actions taken by EPA in response to releases and/or threatened releases of hazardous substances at or from the Site constitute

9 "response" actions as defined by Section 101(25) of CERCLA, 42 U.S.C (25), and are not inconsistent with the NCP, 40 C.F.R. Part The United States has incurred and will continue to incur costs of removal and/or remedial actions not inconsistent with the NCP in response to the release or threatened release of hazardous substances at and from the Site, within the meaning of Sections 101(23), (24), and (25) of CERCLA, 42 U.S.C. $4 9601(23), (24), and (25). 32. The defendants are individually liable to the United States, in their respective capacities, as either past or current owners and/or operators of the Site, or as an owner and/or operator of the Site at the time of disposal of hazardous substances, for all response costs, including the costs of removal and remedial actions, incurred and to be incurred by the United States with respect to the Site and including all costs of enforcement and interest, pursuant to Section 107(a) of CERCLA, 42 U.S.C. tj 9607(a). 33. The United States, under Section 113(g) of CERCLA, 42 U.S.C (g), is entitled to a declaration of liability in its favor. PRAYER FOR RELIEF WHEREFORE, plaintiff, the United States of America, respectfully requests that the Court: A. Enter judgment against the defendants, holding them jointly and severally liable for all costs incurred and to be incurred by the United States in response to releases or threatened releases of hazardous substances at or from the Site, including interest and costs of enforcement;

10 B. Enter a declaratory judgment in favor of the United States, declaring that the defendants are jointly and severally liable in any subsequent action(s) to recover further response costs; and C. Grant such other and further relief as the Court deems just and proper. Respectfully submitted, RONALD J. TENPAY Assistant Attorney General Environmental ~nforcement Section Environment and Natural Resources Division United States Department of Justice ALICE H. MARTIN United States Attorney Northern District of Alabama Assistant United States Attorney Bar No. ASB7291 -G69E United States Attorney's Office Northern District of Alabama Robert Vance Federal Building Fourth Avenue North Birmingham, Alabama Telephone: (205) Facsimile: (205) ed.ragland@usdoj.gov

11 Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C Telephone: (202) Facsimile: (202) DAVIS FORSYTHE Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice P.O. Box Washington, D.C Telephone: (202) Facsimile: (202) davis. forsythe@usdoj.gov OF COUNSEL: KAREN SINGER Assistant Regional Counsel United States Environmental Protection Agency, Region 4 Atlanta Federal Center 61 Forsyth Street, SW Atlanta, Georgia