Mpm Silicones, Llc v. Union Carbide Corporation

MOTION for Partial Summary Judgment

N.D.N.Y.July 21, 2016

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK MPM SILICONES, LLC, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant. No. 1:11-CV-1542 BKS/ATB DEFENDANT UNION CARBIDE CORPORATION’S NOTICE OF RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT ON UNJUST ENRICHMENT AND CONTRIBUTION UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT PLEASE TAKE NOTICE that upon the annexed Supplemental Declaration of Harold L. Segall, executed on July 21, 2016, and the exhibits attached thereto, Defendant Union Carbide Corporation’s (“UCC”) Supplemental Statement of Material Facts, and the accompanying Memorandum of Law in support of this motion, dated July 21, 2016, UCC shall move this Court before the Honorable Brenda K. Sannes at the United States Courthouse, James M. Hanley Federal Building, 100 S. Clinton St., Syracuse, New York, on the 1st day of September, 2016, at 10:00 a.m. or as soon thereafter as counsel may be heard, for an order, pursuant to Fed. R. Civ. P. 56 or, in the alternative, pursuant to Local Rule 7.1(g):  Dismissing MPM’s state-law claims for restitution (Count VI) and declaratory judgment as to restitution (Count VII); and  Declaring MPM liable in contribution for its equitable share of any recoverable past or future removal costs, under CERCLA §§ 113(f)(1), 113(g)(2) (42 U.S.C. §§ 9613(f)(1), 9613(g)(2)) and 28 U.S.C. § 2201(a) (UCC’s First and Second Claims for Relief). Case 1:11-cv-01542-BKS-ATB Document 152 Filed 07/21/16 Page 1 of 2 2 Dated: July 21, 2016 Respectfully submitted, BEVERIDGE & DIAMOND, P.C. By: s/ Harold L. Segall_____________ Karl S. Bourdeau (Bar Roll No.103740) Harold L. Segall (Bar Roll No.103741) 1350 I Street, N.W., Suite 700 Washington, DC 20005 Tel.: (202) 789-6000 Fax: (202) 789-6190 kbourdeau@bdlaw.com hsegall@bdlaw.com Megan R. Brillault (Bar Roll No. 511541) 477 Madison Avenue, 15th Floor New York, NY 10022 Tel.: (212) 702-5400 Fax: (212) 702-5450 mbrillault@bdlaw.com Edward M. Grauman (Bar Roll No. 517387) 98 San Jacinto Boulevard, Suite 1420 Austin, TX 78701 Tel.: (512) 391-8000 Fax: (512) 391-8099 egrauman@bdlaw.com Attorneys for Defendant Union Carbide Corporation Case 1:11-cv-01542-BKS-ATB Document 152 Filed 07/21/16 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK MPM SILICONES, LLC, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant. No. 1:11-CV-1542 BKS/ATB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT UNION CARBIDE CORPORATION’S RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT ON UNJUST ENRICHMENT AND CONTRIBUTION UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT BEVERIDGE & DIAMOND, P.C. Karl S. Bourdeau (Bar Roll No. 103740) Harold L. Segall (Bar Roll No. 103741) 1350 I Street, N.W., Suite 700 Washington, DC 20005 Tel.: (202) 789-6000 Fax: (202) 789-6190 kbourdeau@bdlaw.com hsegall@bdlaw.com Megan R. Brillault (Bar Roll No. 511541) 477 Madison Avenue, 15th Floor New York, NY 10022 Tel.: (212) 702-5400 Fax: (212) 702-5450 mbrillault@bdlaw.com Edward M. Grauman (Bar Roll No. 517387) 98 San Jacinto Boulevard, Suite 1420 Austin, TX 78701 Tel.: (512) 391-8000 Fax: (512) 391-8099 egrauman@bdlaw.com Attorneys for Defendant Union Carbide Corporation Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 1 of 30 i TABLE OF CONTENTS INTRODUCTION...........................................................................................................................1 FACTUAL BACKGROUND .........................................................................................................2 ARGUMENT ..................................................................................................................................2 I. MPM CANNOT ESTABLISH A CLAIM FOR DECLARATORY RELIEF AS TO RESTITUTION.......................................................................................................2 A. MPM Cannot Obtain a Declaratory Judgment Because Its Underlying Restitution Claim Fails. .................................................................................2 B. Restitution Is an Inappropriate Vehicle for Recovering Future Cleanup Costs.................3 C. Assuming Arguendo that Restitution Were Ever an Appropriate Vehicle for Recovering Future Cleanup Costs, Declaratory Relief Would Be Inappropriate Here. ...5 II. MPM CANNOT ESTABLISH AN UNDERLYING CLAIM FOR RESTITUTION. ........7 A. MPM Has Not Conferred a Benefit on UCC. ....................................................................9 B. Assuming Arguendo that MPM Had Conferred a Benefit, There Are Not “Inequitable and Unconscionable” Circumstances. ........................................................12 III. MPM HAS NO BONA FIDE PROSPECTIVE PURCHASER DEFENSE TO CERCLA LIABILITY BECAUSE, AMONG OTHER REASONS, IT FAILED TO MEET APPLICABLE REPORTING REQUIREMENTS. ....................15 CONCLUSION .............................................................................................................................23 Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 2 of 30 ii TABLE OF AUTHORITIES Federal Court Cases 55 Motor Avenue Co. v. Liberty Indus. Finishing Corp., 885 F. Supp. 410 (E.D.N.Y. 1994) .............................................................................................4 Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F. Supp. 713 (W.D.N.Y. 1991) ............................................................................................4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..................................................................................................................11 Bruno v. Casella Waste Sys., Inc., 616 F. App’x 20 (2d Cir. 2015) ..................................................................................................3 Canadyne-Georgia Corp. v. Bank of Am., 174 F. Supp. 2d 1360 (M.D. Ga. 2001) ......................................................................................3 Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012)............................................................................................2, 3, 5, 7 CUMIS Ins. Soc., Inc. v. Raines, No. 3:12-6277, 2013 WL 500305 (S.D.W. Va. Feb. 11, 2013)..................................................8 Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357 (2d Cir. 2003)....................................................................................................3, 5 Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514 (11th Cir. 1996) ..................................................................................................11 Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980)..................................................................................................................22 Helix v. S. Pacific Transp. Co., No. C-92-2312 DLJ, 1995 U.S. Dist. LEXIS 19806 (N.D. Cal. Nov. 20, 1995) .......................4 Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010)......................................................................................................15 In re G-I Holdings, Inc., 443 B.R. 645 (Bankr. D.N.J. 2010) ............................................................................................4 Ind. Lumbermens Mut. Ins. Co. v. Reins. Results, Inc., 513 F.3d 652 (7th Cir. 2008) ....................................................................................................12 Johnson v. Ross, 419 F. App’x 357 (4th Cir. 2011) ...............................................................................................8 MPM Silicones, LLC v. Union Carbide Corp., 931 F. Supp. 2d 387 (N.D.N.Y. 2013)................................................................................11, 13 New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985)....................................................................................................10 Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 3 of 30 iii PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161 (4th Cir. 2013) ....................................................................................................23 S. Appalachian Mountain Stewards v. Red River Coal Co., No. 2:14CV00024, 2015 WL 1647965 (W.D. Va. Apr. 14, 2015)...........................................22 Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng'rs, No. C10-1108-JCC, 2011 WL 1215605 (W.D. Wash. Mar. 30, 2011) .....................................22 Trudeau v. Bockstein, No. 05-CV-1019, 2008 WL 541158 (N.D.N.Y. Feb. 25, 2008) .................................................7 United States v. Lias, 154 F. Supp. 955 (N.D.W. Va. 1957) .......................................................................................12 United States v. P/B STCO 213, ON 527 979, 756 F.2d 364 (5th Cir. 1985) .....................................................................................................12 Veolia Es Special Servs., Inc. v. Techsol Chem. Co., No. 3:07-0153, 2007 WL 4255280, (S.D.W. Va. Nov. 30, 2007).............................................10 Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569 (7th Cir. 2004) ....................................................................................................10 State Court Cases Bd. of Edu. v. A, C & S, Inc., 546 N.E.2d 580 (Ill. 1989) ..........................................................................................................5 Bush v. Richardson, 484 S.E.2d 490 (W. Va. 1997)..................................................................................................13 Camden v. Fink Coal & Coke Co., 145 S.E. 575 (W. Va. 1928)......................................................................................................13 City of New York v. Keene Corp., 505 N.Y.S.2d 782 (Sup. Ct. 1986)..............................................................................................4 Dunlap v. Hinkle, 317 S.E.2d 508 (W. Va. 1984)....................................................................................................9 Heartwood Forestland Fund IV, LP v. Hoosier, 781 S.E.2d 391 (W. Va. 2015)....................................................................................................9 Realmark Devs., Inc. v. Ranson, 542 S.E.2d 880 (W. Va. 2000)...........................................................................................passim State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 488 S.E.2d 901 (W. Va. 1997)............................................................................................10, 11 State v. Schenectady Chems., Inc., 479 N.Y.S.2d 1010 (App. Div. 1984) .........................................................................................4 T & E Indus., Inc. v. Safety Light Corp., 587 A.2d 1249 (N.J. 1991)..........................................................................................................5 Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 4 of 30 iv Town of Cowen v. Cobb, No. 15-0438, 2016 WL 2969917 (W. Va. May 20, 2016)..........................................................8 Whittaker v. City of Huntington, 107 S.E. 121 (W. Va. 1921)........................................................................................................4 Federal Statutes Declaratory Judgment Act (“DJA”) 28 U.S.C. § 2201 .........................................................................................................................1, 2 28 U.S.C. § 2201(a) ...................................................................................................................2, 23 28 U.S.C. § 2202 .............................................................................................................................2 Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) 42 U.S.C. § 9613(f)(1)...............................................................................................................2, 23 42 U.S.C. § 9613(g)(2) ..............................................................................................................2, 23 42 U.S.C. § 9614(b).......................................................................................................................11 Resource Conservation and Recovery Act (“RCRA”) 42 U.S.C. § 6924(u).......................................................................................................................17 Federal Regulations 40 C.F.R. § 270.10(d) ....................................................................................................................17 40 C.F.R. § 270.14(d)(2).........................................................................................................passim 440 C.F.R. § 270.30(l)(11).................................................................................................15, 16, 20 40 C.F.R. Part 261, App'x VIII......................................................................................................17 Federal Register Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste Management Facilities, 55 Fed. Reg. 30798 (July 27, 1990) ....................................................18 Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste Management Facilities, 61 Fed. Reg. 19432 (May 1, 1996)......................................................18 West Virginia: Final Authorization of State Hazardous Waste Management Program Revision, 68 Fed. Reg. 59542 (Oct. 16, 2003)..........................................................................................19 Hazardous Waste; Codification Rule for the 1984 RCRA Amendments, 52 Fed. Reg. 45788 (Dec. 1, 1987) ............................................................................................17 Additional Material 10B C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2756 (3d ed. Apr. 2016 update) ............................................................................................................3 Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 5 of 30 v Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability, EPA, March 6, 2003 ......................................16 Restatement (First) of Restitution §115 ................................................................................7, 8, 10 Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. e ...........................................4 Restatement (Third) of Restitution and Unjust Enrichment § 2 reporter's note d .........................12 Restatement (Third) of Restitution and Unjust Enrichment § 20..........................................5, 8, 13 Restatement (Third) of Restitution and Unjust Enrichment § 22........................................9, 13, 14 Restatement (Third) of Restitution and Unjust Enrichment § 22 cmt. b ......................................14 Restatement (Third) of Restitution and Unjust Enrichment § 23 .............................................9, 13 Restatement (Third) of Restitution and Unjust Enrichment § 23 cmt. i .........................................9 Restatement (Third) of Restitution and Unjust Enrichment § 24 ...................................................9 Restatement (Third) of Restitution and Unjust Enrichment § 26..................................................13 Restatement (Third) of Restitution and Unjust Enrichment § 27..................................................13 Restatement (Third) of Restitution and Unjust Enrichment § 70....................................................4 Restatement (Third) of Restitution and Unjust Enrichment pt. II, ch. 3, intro. note..............12, 13 Restatement (Third) of Restitution and Unjust Enrichment pt. II, ch. 3, topic 2, intro. note ..................................................................................................................................13 Restatement (Second) of Torts § 840A .........................................................................................10 Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 6 of 30 1 INTRODUCTION In its Amended Memorandum-Decision and Order of July 7, 2016 (Dkt. No. 148) (“Summ. J. Order”), the Court denied the motion for summary judgment by Union Carbide Corporation (“UCC”) as to MPM’s claim for declaratory judgment for restitution, “without prejudice to renewal of the motion.” Summ. J. Order at 76. The Court explained that it was “unable to discern (1) the basis for a cause of action for declaratory judgment as to restitution; (2) the parties’ positions regarding the applicability of state law to this claim; and (3) the parties’ positions regarding the applicability of the federal Declaratory Judgment Act, 28 U.S.C. § 2201, to this claim.” Summ. J. Order at 76. In addition, as to MPM’s underlying restitution claim, the Court stated that while UCC had addressed the “emergency assistance” theory of unjust enrichment, UCC had not fully responded to a “general unjust enrichment theory.” Id. at 71-72. Finally, with respect to MPM’s only remaining defense to its own liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the “bona fide prospective purchaser” (“BFPP”) defense, the Court stated that “[w]hile it appears that MPM has not provided ‘all legally required notices,’ as is required for [this] defense,” it would “decline[] to rule on this issue at this time, without further briefing.” Summ J. Order at 64. By this submission, UCC responds to the Court’s notations regarding renewal of the motion for summary judgment as to MPM’s claim for declaratory judgment as to restitution, and also respectfully offers supplemental briefing on MPM’s underlying restitution claim and BFPP defense under CERCLA.1 Based on this briefing, UCC requests that the Court grant summary 1 UCC’s supplemental briefing is offered in support of its original motion for partial summary judgment as to MPM’s restitution claim and BFPP defense. In the alternative, UCC respectfully Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 7 of 30 2 judgment in its favor dismissing MPM’s claims for restitution (Count VI) and declaratory judgment as to restitution (Count VII). UCC further requests that the Court rule MPM ineligible for the BFPP defense, and consequently hold MPM liable in contribution for its equitable share of any recoverable past or future removal costs, under CERCLA §§ 113(f)(1), 113(g)(2), 42 U.S.C. §§ 9613(f)(1), 9613(g)(2), and 28 U.S.C. § 2201(a) (UCC’s First and Second Claims for Relief). FACTUAL BACKGROUND UCC incorporates by reference the facts set forth in the Amended Memorandum- Decision and Order of July 7, 2016, as well as in UCC’s Statements of Material Facts dated May 4, 2016 (Dkt. No. 77-2), June 5, 2015 (Dkt. No. 90-2), and June 22, 2015 (Dkt. No. 99-1). UCC also references the two additional facts as to which there is no genuine dispute set forth in its Supplemental Statement of Material Facts filed herewith. ARGUMENT I. MPM CANNOT ESTABLISH A CLAIM FOR DECLARATORY RELIEF AS TO RESTITUTION. A. MPM Cannot Obtain a Declaratory Judgment Because Its Underlying Restitution Claim Fails. MPM’s claim for declaratory judgment as to restitution fails for the simple reason that MPM cannot make out an underlying restitution claim to begin with. The federal Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201-02, gives federal courts authority and “the discretion to ‘declare the legal rights and other legal relations of any interested party seeking such declaration.’” Chevron Corp. v. Naranjo, 667 F.3d 232, 244 (2d Cir. 2012) (quoting 28 U.S.C. § 2201(a)). The DJA is purely procedural in nature, and creates no substantive rights. Id. Thus, requests that, if necessary, the Court construe this submission as a motion for reconsideration as to those issues. See L.R. 7.1(g). Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 8 of 30 3 while federal law guides the exercise of the court’s discretion, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), a declaratory judgment cannot be issued without a “valid legal predicate” based on a source of law other the DJA, Naranjo, 667 F.3d at 244. Here, that other source is West Virginia law. See 10B C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2756 (3d ed. Apr. 2016 update) (“Issues that would be governed by state law in a coercive action are equally governed by state law if only declaratory relief is sought.”) (collecting cases); see also Bruno v. Casella Waste Sys., Inc., 616 F. App’x 20, 21 n.2 (2d Cir. 2015) (noting that DJA governs procedure, but not substance, in diversity actions). MPM’s underlying restitution claim seeks repayment from UCC of costs incurred by MPM in 2008 and 2009 to respond to PCB contamination at the Site’s wastewater treatment unit (“WWTU”). See Summ. J. Order at 70 (“MPM seeks restitution for costs related to its investigation of PCBs in the soils surrounding the WWTU . . . .”). As detailed below, MPM cannot meet the elements of a restitution (i.e., unjust enrichment) claim under West Virginia law. See infra Part II. In the absence of a “valid legal predicate,” MPM cannot obtain a declaratory judgment either. See Naranjo, 667 F.3d at 244; see, e.g., Canadyne-Ga. Corp. v. Bank of Am., 174 F. Supp. 2d 1360, 1368 (M.D. Ga. 2001) (denying declaratory judgment as to a claim for past and future cleanup costs where underlying unjust-enrichment claim failed). B. Restitution Is an Inappropriate Vehicle for Recovering Future Cleanup Costs. Although MPM’s complaint suggests that its underlying restitution claim might encompass future cleanup costs, see Compl. ¶ 52 (seeking restitution of costs “incurred or to be incurred”), it subsequently admitted that the underlying claim seeks only past costs. See MPM Opp’n Mem. at 22-23 (Dkt. No. 89) (detailing past response activities upon which MPM’s restitution claim is based). This is actually consistent with the very nature of restitution. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 9 of 30 4 Restitution is a backward-looking remedy, which seeks to restore to the plaintiff a benefit that has been unjustly retained by another. See Whittaker v. City of Huntington, 107 S.E. 121, 123 (W. Va. 1921) (holding that defendant “must restore the status quo ante or otherwise make restitution”); Restatement (Third) of Restitution and Unjust Enrichment (“Restatement (Third)”) § 1 cmt. e (2011) (“Restitution restores something to someone, or restores someone to a previous position.”). There can be no recovery in restitution before the defendant has actually received a benefit and the defendant’s retention of the benefit becomes unjust. See Realmark Devs., Inc. v. Ranson, 542 S.E.2d 880, 884-85 (W. Va. 2000); Restatement (Third) § 70 cmt. f. Prior to the incurrence of cleanup costs, there can be no benefit associated with those costs and no status quo to be restored, as a restitution claim requires. Thus, restitution is an inappropriate vehicle for recovering future cleanup costs, whether by declaratory relief or otherwise. While we have found no West Virginia decision addressing whether declaratory relief can be granted as to restitution, the prevailing view of other courts is that we have found addressing the issue have held that restitution does not provide a remedy for future cleanup costs. See, e.g., Helix v. S. Pac. Transp. Co., No. C-92-2312 DLJ, 1995 U.S. Dist. LEXIS 19806, at *18-19 (N.D. Cal. Nov. 20, 1995) (declining to grant declaratory judgment because “[t]his concept of restitution for future [cleanup] costs seems somewhat contradictory”); 55 Motor Ave. Co. v. Liberty Indus. Finishing Corp., 885 F. Supp. 410, 426 (E.D.N.Y. 1994); Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F. Supp. 713, 722-23 (W.D.N.Y. 1991); In re G-I Holdings, Inc., 443 B.R. 645, 670 (Bankr. D.N.J. 2010); State v. Schenectady Chems., Inc., 479 N.Y.S.2d 1010, 1014 (App. Div. 1984) (“Such claim for restitution [of site cleanup costs] is, of course, limited to the reasonable costs for abatement . . . and does not extend to future costs.”); City of New York v. Keene Corp., 505 N.Y.S.2d 782, 787 (Sup. Ct. 1986), aff’d, 513 N.Y.S.2d 1004 Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 10 of 30 5 (App. Div. 1987); see also Bd. of Educ. v. A, C & S, Inc., 546 N.E.2d 580, 598 (Ill. 1989) (expressing doubt about ripeness of restitution claim for future cleanup costs).2 These decisions are the better reasoned because of the inherently backward-looking nature of restitution. As noted, restitution is intended to restore a status quo; where costs have not been incurred, there is nothing to restore. Therefore, MPM cannot recover unknown future cleanup costs under a restitution theory, whether it styles its claim as a request for declaratory judgment or otherwise. C. Assuming Arguendo that Restitution Were Ever an Appropriate Vehicle for Recovering Future Cleanup Costs, Declaratory Relief Would Be Inappropriate Here. Even if MPM’s future cleanup costs were theoretically recoverable under a restitution theory, which UCC contests, declaratory relief would be inappropriate in this case. The two primary factors to be considered by a court in exercising its discretion to grant a declaratory judgment are “‘(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty.’”3 Naranjo, 667 F.3d at 245 (quoting Dow Jones, 346 F.3d at 359). Both of these factors counsel against granting a declaratory judgment here. A declaratory judgment would serve no useful purpose given the uncertainty surrounding any future speculated cleanup by MPM. The concept of unjust enrichment is inherently contextual, depending on the particular circumstances of the defendant’s enrichment. See 2 In prior briefing, MPM relied on a New Jersey case, T & E Industries, Inc. v. Safety Light Corp., 587 A.2d 1249, 1262-63 (N.J. 1991). This case, however, is wrongly decided in light of the backward-looking nature of restitution, and it appears to be an outlier in the context of cleanup costs. 3 Other relevant factors include “‘(1) whether the proposed remedy is being used merely for ‘procedural fencing’ or a ‘race to res judicata’; (2) whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and (3) whether there is a better or more effective remedy.’” Naranjo, 667 F.3d at 245 (quoting Dow Jones, 346 F.3d at 359-60). Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 11 of 30 6 Realmark, 542 S.E.2d at 884-85; see also Restatement (Third) § 2(1) (“The fact that a recipient has obtained a benefit without paying for it does not of itself establish that the recipient has been unjustly enriched.”). In the event MPM were to incur cleanup costs in the future, it would be necessary to examine the circumstances of that future cleanup to determine whether UCC had been unjustly enriched thereby. For example, the emergency assistance theory of unjust enrichment only applies where the plaintiff has performed the defendant’s duty in an emergency threatening public health, safety, or welfare. See Restatement (Third) § 22(2)(c). Even if there had been an urgent threat to public health or the environment at the time MPM encountered the PCBs at the WWTU in 2008—and there was not, see infra Part II—more than eight years have passed and MPM still has done nothing to remediate the PCBs. See UCC SMF4 ¶ 166; UCC SMF-CM ¶¶ 211-12. This means either that there is no urgent threat today or that MPM has sat on its hands in the face of such a threat. In either circumstance, MPM would not be able to make the showing required by the emergency assistance doctrine that it undertook an urgent response. And even if MPM could rely on some other, as-yet-unspecified unjust-enrichment theory to recover its past costs, its entitlement to future costs would still need to be evaluated in light of future events. In addition, while the PCBs as they sit in the ground today, with no ongoing exposure to anyone, pose no threat, it might be that MPM’s own future activities at the Site—such as its long-unimplemented purported plan to upgrade the WWTU—cause it to create to create a risk of PCB-related exposure that was entirely foreseeable to MPM and of its own making in its 4 “UCC SMF” refers to UCC’s Statement of Material Facts in Support of Its Motion for Partial Summary Judgment (Dkt. No. 77-2). “UCC SMF-CM” refers to UCC’s Statement of Material Facts in Support of Its Cross-Motion for Partial Summary Judgment (Dkt. No. 90-2). “UCC Reply SMF” refers to UCC’s Statement of Material Facts in Support of Its Reply Memorandum of Law (Dkt. No. 99-1). “UCC Suppl. SMF” refers to UCC’s Supplemental Statement of Material Facts in Support of Its Renewed Motion, dated July 21, 2016. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 12 of 30 7 approach to the project. In that case, the balance of equities would certainly shift toward imposing responsibility on MPM. Regardless, the balance of equities going forward likely will be different than it may have been with respect to MPM’s initial sampling efforts in 2009, and it likely would be necessary to apportion any responsibility for cleanup costs that might be incurred in the future differently than past circumstances would indicate. Before future circumstances are known, a declaratory judgment based on unjust enrichment would of necessity lack the required contextual consideration, and thus would be unwarranted. A declaratory judgment is also inappropriate because it would not “finalize the controversy” or “offer relief from uncertainty.” See Naranjo, 667 F.3d at 245. A declaratory judgment holding UCC liable for some portion of MPM’s future cleanup costs would do nothing to resolve potential disputes about whether MPM was reasonable in incurring those costs, or even entitled to their recovery at all. Under these circumstances, a declaratory judgment would not be appropriate as a matter of law. Cf. Trudeau v. Bockstein, No. 05-CV-1019, 2008 WL 541158, at *8 (N.D.N.Y. Feb. 25, 2008) (declining to issue a declaratory judgment in light of the “speculative nature of the harm” posited by plaintiff). II. MPM CANNOT ESTABLISH AN UNDERLYING CLAIM FOR RESTITUTION. At bottom, MPM’s restitution claim aims to make UCC pay for a cleanup that, if it ever even occurs, will benefit only MPM. UCC has no legal duty to conduct a remedy at the Site, and thus gains nothing from the work MPM has done and may someday do to respond to the PCB contamination. There is no legitimate reason to permit MPM to improve its own property for commercial reasons at UCC’s expense. In prior briefing, UCC focused principally on showing why MPM could not obtain restitution under the emergency assistance doctrine set forth in § 22(2)(c) of the Restatement (Third) of Restitution and Unjust Enrichment and § 115 of the Restatement (First) of Restitution. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 13 of 30 8 This was the only restitution doctrine MPM actually articulated in its complaint,5 and in briefing MPM could point to no other legal authority that might support an unjust-enrichment claim under the circumstances here. This Court expressed substantial doubt that MPM could satisfy the requirements of the emergency assistance doctrine,6 but declined to grant UCC’s summary judgment motion to the extent that MPM’s restitution claim is advanced under a “general unjust enrichment theory.” Summ. J. Order at 70-75. Even viewed more broadly, MPM’s claim fails as a matter of law. Under West Virginia law, a claim for unjust enrichment requires a plaintiff to show, at a minimum: (1) a benefit conferred on the defendant by the plaintiff, and (2) the retention by the defendant of the benefit “under such circumstance that it would be inequitable and unconscionable to permit the [defendant] to avoid payment therefor.”7 Realmark, 542 S.E.2d at 884-85; accord Town of Cowen v. Cobb, No. 15-0438, 2016 WL 2969917, at *4 (W. Va. May 20, 2016). West Virginia generally follows the approach of the Restatements of Restitution, 5 Compare Compl. ¶ 49 (“MPM undertook these actions unofficiously and with the intent to seek recovery of costs from persons responsible for the environmental hazards.”), and id. ¶ 47 (“Actions in response to UCC’s disposal and release of hazardous substances, including PCBs, at the Sistersville Site are and have been necessary to protect public health, safety, and the environment.”), with Restatement (First) § 115(a) (requiring claimant to have “acted unofficiously and with intent to charge therefor”), and id. ¶ 115(b) (requiring that “the things or services supplied were immediately necessary to satisfy the requirements of public decency, health, or safety”). 6 In doing so, the Court observed that “[i]n this case, the outcome would be the same regardless of whether West Virginia adopted §[]115 of the Restatement (First) or § 22 of the Restatement (Third).” Summ. J. Order at 74 n.63. 7 Some federal courts relying on non-West Virginia authorities have added a third element: “an appreciation or knowledge by the defendant of the benefit.” Johnson v. Ross, 419 F. App’x 357, 361 (4th Cir. 2011). The West Virginia courts have not expressly adopted this element. See CUMIS Ins. Soc., Inc. v. Raines, No. CIV.A. 3:12-6277, 2013 WL 500305, at *2 n.4 (S.D.W. Va. Feb. 11, 2013) (noting that West Virginia Supreme Court of Appeals had arguably “refined” the test without including the “appreciation or knowledge” element); see also Restatement (Third) § 1 cmt. d (describing this purported element as “mysterious and potentially mischievous”). In any event, MPM cannot establish either of the other two elements, so its claim fails regardless. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 14 of 30 9 including the Restatement (Third) issued in 2011. See Heartwood Forestland Fund IV, LP v. Hoosier, 781 S.E.2d 391, 397 (W. Va. 2015) (Restatement (Third)); Realmark, 542 S.E.2d at 884-85 (Restatement (First)). Applying West Virginia law and the relevant Restatement provisions, MPM cannot meet either of the above elements of an unjust enrichment claim. A. MPM Has Not Conferred a Benefit on UCC. While MPM’s complaint and prior briefing are vague about what benefit MPM has conferred on UCC, MPM appears to allege that the benefit was the discharge of a legally enforceable duty owed by UCC to the public to clean up the PCBs at the WWTU. Cf. Dunlap v. Hinkle, 317 S.E.2d 508, 512 n.2 (W. Va. 1984) (noting that benefit may consist of “satisfaction of a debt or duty owed by” the unjustly enriched person); see also Restatement (Third) § 22(3) & cmt. i (no unjust enrichment unless defendant relieved of legally enforceable obligation). MPM’s complaint suggests the existence of such a duty when it states that “[a]s the entity responsible for disposing and releasing hazardous substances at the Sistersville Site, including PCBs, UCC had a duty to act so as to prevent harm to persons or the environment.” Compl. ¶ 46. MPM claims that its actions to investigate the PCB contamination—and possibly, in the future, to remediate it (if MPM ever does such remediation, notwithstanding the many years that have passed without MPM having done so)—constitute the performance of this duty on UCC’s behalf, that these actions “have and will reduce UCC’s liability,” and that UCC has benefited thereby. Id. ¶¶ 47-48, 50; see also MPM Opp’n Mem. at 22 (Dkt. No. 89).8 MPM identifies no 8 In prior briefing, MPM argued that “[b]y responding to UCC’s release of PCBs at the Site and addressing immediate concerns (such as by decontaminating certain equipment and conducting preliminary sampling to assess the ongoing risk), MPM reduced the obligation of UCC to respond to its own wrongful acts and thereby benefited UCC.” MPM Opp’n Mem. at 22 (Dkt. No. 89). Although MPM does not identify to whom UCC owes this supposed “obligation,” given that MPM is seeking restitution this obligation must be to the public. Any obligation owed by UCC to MPM would be a subject of tort law rather than restitution. See infra note 9. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 15 of 30 10 other possible benefit that could form the basis of its unjust-enrichment claim—and there is none.9 In fact, however, UCC owes no legal duty to the public (in tort or otherwise) to clean up the contamination, and accordingly has received no benefit from MPM. See Veolia Es Special Servs., Inc. v. Techsol Chem. Co., No. CIV. A. 3:07-0153, 2007 WL 4255280, at *9-10 (S.D.W. Va. Nov. 30, 2007) (holding, under West Virginia law, that no benefit was conferred where defendants had no duty to clean up hazardous-substance spill); A, C & S, 546 N.E.2d at 597-98 (holding that no benefit was conferred on plaintiff school districts where asbestos suppliers had no tort or statutory duty to remove asbestos from school buildings, even though asbestos might pose public hazard). UCC cannot possibly owe a tort-based duty because MPM has failed to make even the threshold showing that the PCB contamination poses a public threat, akin to a public nuisance, let alone that UCC should be held responsible for abating it.10 Cf. State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 488 S.E.2d 901, 925 (W. Va. 1997) (“A public nuisance action usually seeks to have some harm which affects the public health and safety abated.”). MPM undisputedly has never performed a risk assessment to determine whether the PCBs at the 9 A tort duty owed by UCC to MPM (rather than the public) might form the basis of a tort claim but would not give rise to liability in restitution. See Restatement (Third) § 22(1) (requiring that claimant perform defendant’s duty to “a third person or the public”); cf. Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 576 (7th Cir. 2004) (Posner, J.) (noting that restitution may be available in certain intentional-tort cases, which is not applicable because no intentional tort was alleged or committed here). This Court has already dismissed MPM’s tort claims. 10 Indeed, even if the PCBs at the Site did constitute a public nuisance – for which there is no evidence – UCC could not be held liable for it. A prior owner of land ceases to be liable for a public nuisance once a subsequent owner discovers the nuisance and has “reasonable opportunity to abate it.” Restatement (Second) of Torts § 840A (1979); cf. New York v. Shore Realty Corp., 759 F.2d 1032, 1050-51 (2d Cir. 1985). As the Court held, MPM has known about PCB contamination at the Site since at least 2004, see Summ. J. Order at 39-40, 61, 63, and has done nothing to remediate it. Even assuming the PCBs constituted a public nuisance, MPM has had more than “reasonable opportunity” to abate them. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 16 of 30 11 WWTU pose a risk to public health or the environment in the first place. See UCC SMF ¶ 165; UCC SMF-CM ¶ 222. Highlighting the lack of emergency or threat, to this day MPM has not completed the PCB sampling at the WWTU that it suspended in September 2009. See UCC SMF ¶ 161. The Site is not alleged to be, nor is it, located anywhere near a residential area, and the PCBs are buried underground. The only possible risk MPM has speculated about is a risk to its own construction workers engaged in excavation, not to the public at large, see Dkt. No. 91-3, at 77-78; Dkt. No. 91-5, at 126-28—not even MPM has suggested the existence of a broader threat akin to a public nuisance, cf. Kermit Lumber, 488 S.E.2d at 921 (defining public nuisance as “an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons”). For their part, neither the West Virginia Department of Environmental Protection (“WVDEP”) nor the U.S. Environmental Protection Agency (“EPA”) has required any remediation of the PCBs. UCC CM-SMF ¶ 217. In the absence of “‘specific facts showing that there is a genuine issue for trial’” regarding the existence of a threat to public health, safety, or the environment from PCB contamination attributable to UCC, MPM cannot establish that UCC owed any tort-based duty to the public that might form the basis of an unjust-enrichment claim. See Summ. J. Order at 21 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Finally, UCC owes no statutory duty either, at least with respect to costs that would qualify as remedial response costs under CERCLA. The Court has already determined that UCC is not liable for CERCLA remedial costs, and accordingly any payment of remedial costs by MPM could not confer a benefit on UCC.11 See Fla. Power & Light Co. v. Allis Chalmers Corp., 11 As to those CERCLA removal costs for which the Court has found UCC liable, even if their payment by MPM has conferred a benefit on UCC, recovery of such costs under state law is preempted by the double-recovery bar in CERCLA § 114(b), 42 U.S.C. § 9614(b). In its decision on UCC’s motion to dismiss, this Court left the door open for UCC to make a “renewed attack” on MPM’s state-law claims should it become clear, after further development of the factual record, that those claims would result in double recovery. MPM Silicones, LLC v. Union Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 17 of 30 12 85 F.3d 1514, 1520 (11th Cir. 1996); cf. United States v. P/B STCO 213, ON 527 979, 756 F.2d 364, 374 (5th Cir. 1985) (applying Restatement (First) § 115 to hold that government had conferred benefit by incurring costs to perform cleanup that defendants had primary duty to perform under Federal Water Pollution Control Act). In the absence of any legally enforceable duty owed by UCC to clean up the PCBs, MPM’s cleanup activities (limited as they are) could not have discharged such a duty, and thus have conferred no benefit on UCC. If anyone at all has benefited, it is MPM alone. MPM’s restitution claim must fail. B. Assuming Arguendo that MPM Had Conferred a Benefit, There Are Not “Inequitable and Unconscionable” Circumstances. Even if MPM’s unrequested payment of past costs to respond to the PCBs at the WWTU could be considered a benefit to UCC, there are not “inequitable and unconscionable” circumstances requiring UCC to repay MPM. See Realmark, 542 S.E.2d at 884-85. It is fundamental that, with limited exceptions, there is no liability in restitution for a benefit voluntarily (or “officiously”) conferred. Restatement (Third) § 2; Ind. Lumbermens Mut. Ins. Co. v. Reins. Results, Inc., 513 F.3d 652, 656-57 (7th Cir. 2008) (Posner, J.); United States v. Lias, 154 F. Supp. 955, 958 (N.D.W. Va. 1957). The rationale for this principle is that one should not be required to pay for benefits that they neither requested nor agreed to pay for. See Restatement (Third) § 2 reporter’s note d; Restatement (Third) pt. II, ch. 3, intro. note. Thus, in the ordinary case, there is no inequity where a defendant retains a benefit voluntarily conferred. Carbide Corp., 931 F. Supp. 2d 387, 406 (N.D.N.Y. 2013). At this point, the prospect for double recovery with respect to CERCLA removal costs is clear, and MPM’s restitution claim as to those costs should be dismissed as barred under CERCLA § 114(b). Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 18 of 30 13 MPM does not dispute that it incurred the cleanup costs at issue without request from UCC.12 Nor do the circumstances here fit within any of the well-recognized exceptions to this rule. Broadly speaking, there are three categories of exceptions to the rule denying restitution for the claimant’s unrequested intervention. See Restatement (Third) pt. II, ch. 3, intro. note. The first is a narrow set of “self-interested” interventions whereby a claimant acts to protect its own legitimate legal interest (typically in property), such as when a property owner confers a benefit on another party who shares an interest in the property (like payment of property taxes), or when a person improves the property of another under the reasonable but ultimately frustrated expectation that they will acquire the property. See Restatement (Third) §§ 26-27; see, e.g., Camden v. Fink Coal & Coke Co., 145 S.E. 575 (W. Va. 1928) (taxes); Realmark, 542 S.E.2d at 884-85 (improvements). These circumstances do not apply here because UCC has no property interest in the Site and does not benefit from MPM’s sampling at the WWTU. The second category of exceptions arises when the claimant performs a duty that it owes to a third person, and thereby discharges the defendant’s duty to that person as well. Restatement (Third) pt. II ch. 3, topic 2, intro. note. In such circumstances, the claimant may be able to recover under a theory of indemnity or contribution (in the case of a joint obligation) or equitable subrogation (in the case of an independent obligation). See Restatement (Third) §§ 23- 24; see, e.g., Bush v. Richardson, 484 S.E.2d 490, 493-94 (W. Va. 1997) (subrogation). This Court has already dismissed MPM’s claim for indemnity or contribution, holding that its payment for PCB sampling at the WWTU was not made under any legal obligation to a third party. MPM Silicones, LLC v. Union Carbide Corp., 931 F. Supp. 2d 387, 406-08 (N.D.N.Y. 2013). This avenue is foreclosed to MPM as well. 12 Indeed, MPM first incurred such costs in June 2008, more than two years before informing UCC of the contamination. See UCC SMF-CM ¶¶ 178-88. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 19 of 30 14 The final category of exceptions arises where the claimant acts under emergency or other exigent circumstances. Restatement (Third) pt. II, ch. 3, intro. note; see also Restatement (Third) §§ 20-22. This theory—which is the only theory articulated in MPM’s complaint—is the emergency assistance doctrine, and fails for a lack of a duty owed by UCC to the public to clean up the PCBs. See supra Part II.A. Even if UCC did owe such a duty, MPM cannot show that the circumstances justified its decision to intervene without first requesting that UCC perform the cleanup. See Restatement (Third) § 22(1). First, unrequested intervention is not justified unless there is an “obstacle to prior agreement” between the parties. Restatement (Third) § 22 cmt. b. MPM nakedly asserts that at the time it encountered PCBs at the WWTU in 2008, it was hindered from requesting UCC’s participation because it lacked knowledge that UCC might have been responsible for their original release. The facts show otherwise. As the Court has held, by 2004 MPM was generally aware of PCB contamination at the Site, owned the “assets associated with the Site” (including the PCB inventory and purchase records maintained by UCC, see UCC Reply SMF ¶ 229), and employed personnel, including Dennis Heintzman, who had previously worked for UCC and had knowledge of past PCB disposal by UCC. See Summ. J. Order at 39-40. MPM has come forth with no contrary evidence to show that as of 2008, it could reasonably have been ignorant that UCC was a likely source of the PCB contamination at the WWTU. Second, unrequested intervention may be justified only if performance of the defendant’s duty is “urgently required for the protection of public health, safety, or general welfare.” Restatement (Third) § 22(2)(c). Again, MPM has set forth no specific facts to show that the actions it took at the WWTU – to say nothing of the actions it may someday take to actually remediate the PCBs – were urgently required. As the Court put it, “MPM has not cited to Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 20 of 30 15 evidence that its response was an ‘immediate necessit[y].’” Summ. J. Order at 75. Indeed, MPM’s own lack of urgency is shown by the fact that it waited a year after encountering PCBs at the WWTU to begin its abortive effort to delineate the contamination. See id. at 18, 66. MPM cannot manufacture a genuine issue of material fact through the “mere conclusory allegation” that its response was urgent. See id. at 22 (quoting Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks omitted)). * * * MPM cannot establish that its unrequested payment of past costs to respond to the PCBs at the WWTU conferred a benefit on UCC, nor can it show that that there are “inequitable and unconscionable” circumstances requiring UCC to repay MPM. Neither can it show that the circumstances here enable it to recover under any other recognized theory of unjust enrichment. MPM’s restitution claim fails as a matter of law. III. MPM HAS NO BONA FIDE PROSPECTIVE PURCHASER DEFENSE TO CERCLA LIABILITY BECAUSE, AMONG OTHER REASONS, IT FAILED TO MEET APPLICABLE REPORTING REQUIREMENTS. With respect to UCC’s counterclaim against MPM, the Court ruled on summary judgment that MPM could not satisfy the innocent landowner defense, see Summ. J. Order at 61, and stated, with respect to MPM’s only remaining liability defense, the BFPP defense, “[w]hile it appears that MPM has not provided ‘all legally required notices’, as is required for the [BFPP] defense, the Court declines to rule on this issue at this time, without further briefing,” id. at 64. Specifically, the Court noted a need for further explanation as to why MPM was required to report its discovery of PCBs in 2003 and 2008 under its Resource Conservation and Recovery Act (“RCRA”) permit and applicable regulations, particularly 40 C.F.R. § 270.30(l)(11). See Summ. J. Order at 63-64. As explained below, because MPM failed to provide all legally Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 21 of 30 16 required notices, it cannot legitimately invoke the BFPP defense and should be found liable for contribution under CERCLA. As the EPA has found, “Congress’ intent in including [the “legally required notices” condition in the BFPP defense] as an ongoing obligation was to ensure that EPA and other appropriate entities are made aware of hazardous substance releases in a timely manner.”13 A party seeking BFPP protection has “the burden of ascertaining what notices are legally required in a given instance and of complying with those notice requirements.”14 MPM’s relevant notice obligations arise from two sources. First, MPM’s 1990 RCRA corrective action permit included 7- and 14-day notice provisions requiring that [w]henever the Permittee becomes aware that it failed to submit any relevant facts in the permit application, or submitted incorrect information in a permit application . . . , the Permittee shall notify the [EPA] Regional Administrator or [State] Director of such failure within 7 days.15 The Permittee shall submit the correct or additional information . . . no later than 14 days of becoming aware of the deficiency. Dkt. No. 99-18, at MPM0024988 (Part I, I.15) (1990 Permit for Corrective Action (WVD 004 32 5353)) (emphasis added). When WVDEP issued MPM a new RCRA permit in 2008,16 that permit contained the same 7-day notice obligation and a 30-day (rather than 14-day) submission 13 Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability, EPA, March 6, 2003, at 13 (emphasis added). 14 Id. 15 When MPM purchased the Site in 2003, it affirmatively assumed the Site’s 1990 RCRA permit and the obligation to comply with the permit’s provisions (including this notice requirement). See Dkt. No. 99-6. That permit remained effective until MPM’s current RCRA permit was issued in May 2008 (“May 2008 permit”). See UCC Reply SMF ¶ 235. 16 In 2003, WVDEP was authorized by EPA under RCRA to administer its hazardous waste corrective action program in lieu of the federal program. See West Virginia: Final Authorization of State Hazardous Waste Management Program Revision, 68 Fed. Reg. 59542 (Oct. 16, 2003). Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 22 of 30 17 requirement, which was otherwise identical to the 1990 permit. See Segall Suppl. Decl. Ex. 174, at PA_EPA_004615 (Module I, I-E) (2008 Permit for Corrective Action (WVD 004 32 5353)).17 Second, the RCRA permitting regulations require any permit applicant (e.g., MPM) whose facility contains one or more solid waste management units (“SWMUs”) to “submit all available information pertaining to any release of hazardous wastes or hazardous constituents from such unit or units.” 40 C.F.R. § 270.14(d)(2); see also 40 C.F.R. § 270.10(d) (requiring all facilities that contain SWMUs to comply with 40 C.F.R. § 270.14 when seeking a RCRA permit). This notice requirement in § 270.14(d)(2) is foundational to the principal objective of the RCRA corrective action program and permits issued pursuant to it: To ensure that releases of RCRA hazardous constituents, such as PCBs,18 anywhere at a facility will be identified and addressed as necessary to protect human health and the environment. See, e.g., 42 U.S.C. § 6924(u); see also Dkt. No. 99-18, at MPM0024990 (Part II, A); Segall Suppl. Decl. Ex.19 174, at PA_EPA_004658 (Module X). Together, MPM’s notice obligations in its RCRA permits and the notice obligation established by 40 C.F.R. § 270.14(d)(2) required MPM to report any newly discovered releases of hazardous constituents (e.g., PCBs) from SWMUs anywhere at the Site. Using a facility’s permit application as the baseline factual submission, the notice obligation in MPM’s RCRA 17 As the Court noted in its Summary Judgment Order (Dkt. No. 148) at page 63 n. 50, the 1990 and 2008 RCRA permit provisions derive from 40 C.F.R. § 270.30(l)(11) which states in full: “Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information.” EPA and WVDEP clarified the term “promptly” in MPM’s permits by specifying the number of days in which notice is required. 18 While PCBs are not a hazardous waste, they are a RCRA hazardous constituent. See 40 C.F.R. Part 261, App’x VIII. 19 “Segall Supp. Decl. Ex.” refers to exhibits attached to the Supplemental Declaration of Harold L. Segall in Support of UCC’s Renewed Motion for Partial Summary Judgment, dated July 21, 2016. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 23 of 30 18 permits imposes an ongoing obligation on permittees to submit all previously unreported “relevant facts” within 14 (or 30) days of discovering them. Newly discovered releases of hazardous constituents at a facility are clearly “relevant facts” because the paramount concern underlying RCRA corrective action is to address all historical and contemporary releases at RCRA-permitted facilities as those releases become known, whether at the time of a facility’s RCRA permit application or afterwards. See 42 U.S.C. § 6924(u); 40 C.F.R. § 270.14(d)(2); Hazardous Waste: Codification Rule for the 1984 RCRA Amendments, 52 Fed. Reg. 45788, 45789 (Dec. 1, 1987). In fact, EPA has come to this exact conclusion, stating that “[i]n cases where releases from a SWMU are not identified at the time of permit issuance, the owner/operator has a continuing responsibility to report and address such releases.” 52 Fed. Reg. at 45789 (emphasis added). Despite these notice obligations to which MPM agreed in its permit, MPM did not timely report the PCB releases that it discovered in 2003 (or discovered no later than 2004); nor did it report these PCB releases when it submitted updated RCRA permit applications in 2004 and 2007; nor did it timely report the PCB release it encountered in 2008. See UCC Reply SMF ¶¶ 231-33. MPM did not report the PCB releases until years later in 2012, in clear violation of its obligation to provide notice to regulators within 7 days and to submit all relevant information within 14 (or 30) days. See UCC Reply SMF ¶ 234. When MPM purchased the Site in 2003 after extensive sampling by its environmental expert ENVIRON—and certainly no later than the issuance of the 2004 ENVIRON Phase II Report—MPM was placed on notice of PCB releases at three specific areas containing SWMUs: the Waste Incineration Area, the Permitted Waste Storage Area, and the Environmental Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 24 of 30 19 Protection Area (“EP Area”).20 See Dkt. No. 80-17, at MPM0015827-33 (ENVIRON final Phase II Report describing PCB releases in soils in the Waste Incineration Area and the Permitted Waste Storage Area and in groundwater beneath the EP Area); UCC SMF ¶¶ 142-43, 145. Indeed, ENVIRON recommended further investigation to determine what corrective action may be necessary for these PCB releases. See UCC SMF ¶ 144. Given MPM’s “continuing responsibility to report and address [releases of hazardous constituents from SWMUs],” 52 Fed. Reg. 45788, 45789, the PCB releases discovered by ENVIRON unquestionably were “relevant facts” for purposes of fulfilling the notice obligations established in MPM’s RCRA permit in effect at that time.21 See Dkt. No. 99-18, at MPM0024988 (Part I, I.15) (1990 permit). Because the newly encountered PCB releases had not been disclosed in previous permit applications, UCC Suppl. SMF ¶ 238, MPM was required to report the PCBs to regulators under its RCRA permit. It did not do so at that time. See UCC Reply SMF ¶ 231. In 2004 and 2007, MPM submitted two updates to the Site’s pending RCRA permit application, yet neither of MPM’s permit-application updates reported the PCB releases 20 Although the RCRA regulations do not contain a formally promulgated definition of “solid waste management unit,” EPA has long and consistently interpreted that RCRA term of art to extend to “any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. Such units include any area at a facility at which solid wastes have been routinely and systematically released.” Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste Management Facilities, 55 Fed. Reg. 30798, 30808 (July 27, 1990); Corrective Action for Releases From Solid Waste Management Units at Hazardous Waste Management Facilities, 61 Fed. Reg. 19432, 19442 (May 1, 1996). The three areas where ENVIRON discovered PCB releases in 2003—the Waste Incineration Area, the Permitted Waste Storage Area, and the EP Area—contain units that, as described in ENVIRON’s Phase II Report, readily fall within EPA’s definition of a SWMU. See Dkt. No. 80-17, at MPM0015798, MPM0015807, MPM0015827- 31. 21 As noted above, see supra note 15, MPM had assumed the 1990 RCRA permit when it acquired the Site, and that permit remained effective until WVDEP issued a new permit to MPM in 2008. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 25 of 30 20 discovered by ENVIRON in 2003, as required by 40 CFR § 270.14(d)(2).22 See UCC Reply SMF ¶ 233. MPM ignored its obligation to report all known releases of hazardous constituents in its permit applications. Finally, when MPM encountered PCBs at the WWTU in June 2008, it again failed to report a previously unknown PCB release23 to the regulators, as required by its recently issued 2008 RCRA corrective action permit and 40 C.F.R. § 270.14(d)(2). See UCC Reply SMF ¶ 232; UCC Suppl. SMF ¶ 239; Segall Suppl. Decl. Ex. 174, at PA_EPA_004615 (Module I, I-E) (2008 permit setting out MPM’s notice obligations). Not until 2012 did MPM report to any regulatory agency its discovery of PCBs in 2003 and its further encounter with PCB releases in 2008. See UCC Reply SMF ¶¶ 231-34. On March 16, 2012, seeking to bolster its litigation positions in this case and a bankruptcy proceeding, MPM belatedly sent a letter reporting the PCBs to WVDEP.24 See Dkt. No. 92-19. There can be no genuine dispute that notice of the PCBs encountered by MPM’s consultant ENVIRON in 2003, and notice of the additional PCBs encountered by MPM in 2008, 22 As noted by EPA when promulgating this rule, “the new requirements in § 270.14(d) are intended to assist the Agency in determining the existence or likelihood that there is or has been a release at a facility. Complete information on solid waste management units will enhance the Agency's ability to make these determinations . . . . In cases where releases from a SWMU are not identified at the time of permit issuance, the owner/operator has a continuing responsibility to report and address such releases. . . . At the time of permit reissuance, [EPA or the authorized State] has the opportunity to reevaluate the potential for releases at the facility, and to address them in the context of the reissued permit.” 52 Fed. Reg. at 45789. 23 The PCBs encountered in 2008 were found beneath the former Equalization Basin, a known SWMU. See UCC CM-SMF ¶¶ 178-79; Dkt. No. 78-1, at CHEM_013170, CHEM_013211. Further, the area now occupied by the Equalization Basin (where the PCBs were found) once contained historical impoundments (i.e., SWMUs), as described in both ENVIRON’s 2004 Phase II Report and the 1980 Schubert memorandum. Dkt. No. 80-17, at MPM0015798, MPM0015831; see Dkt. No. 80-19, at MPM0034705-06. 24 In contrast to MPM’s failure to comply with its notice obligations, during (and even after) UCC’s RCRA permit application process for the 1990 permit, UCC submitted to regulators all information of which it was aware with regard to PCBs at the Site. See UCC SMF ¶¶ 40-46, 63. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 26 of 30 21 was legally required. Indeed, MPM has admitted as much. In letters dated March 13, March 20, and July 23, 2012 to Chemtura Corporation, MPM’s indemnitor for contamination at the facility, MPM’s counsel in this case acknowledged that MPM was “legally obligated” to disclose “the presence of PCBs in the subsurface of its Sistersville facility.” Dkt. No. 91-21; see also Dkt. Nos. 91-22, 91-24. In addition, MPM submitted to bankruptcy court the following while pursuing an indemnification claim against Chemtura: Momentive [MPM] unquestionably had a legal obligation to report the information it discovered regarding the release of PCBs. Indeed, EPA said precisely that in its July 2012 Information Request, noting that reporting the release was “required by the Permit for Corrective Action” in effect at the time the PCBs were discovered. As EPA noted, [MPM] . . . had an obligation under the RCRA permits issued for the Facility to inform EPA of any new information it learned about the release of PCBs. See 40 CFR § 270.14(d)(2) (“The owner or operator of any facility containing one or more solid waste management units must submit all available information pertaining to any release of hazardous wastes or hazardous constituents from such unit or units.”); 40 C.F.R. § 270.30(1)(11) [sic] (setting forth obligation to report inaccuracies or omissions in permit applications). When [MPM] became aware that the permit it was holding, as well as the permits that had been in place at the Facility for decades, had been issued upon an application that omitted relevant facts regarding the release of PCBs, [MPM] was obligated to inform the regulators. Momentive’s Reply in Support of Motion for Order (I) Granting Debtors’ Motion to Assume Executory Contract and (II) Directing Payment of Agreed Cure Amount at 19-20, In Re Chemtura Corp., et. al, No. 909-11233 (Bankr. S.D.N.Y. Sept. 27, 2012), ECF No. 5794 (emphasis added).25 Simply put, MPM has acknowledged that it was required to report the PCBs it found in 2003 and 2008 pursuant to its 1990 and 2008 RCRA corrective action permits, yet it did not submit information regarding those discoveries until long after the timeframe in which reporting 25 MPM neglected to mention in the foregoing bankruptcy filing that the cited regulatory and permit requirements required notification within 7 days and submission within 14 or 30 days of the facts regarding the PCB releases that MPM discovered in 2003 and in 2008, respectively. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 27 of 30 22 was required under the permits.26 Moreover, EPA has confirmed that MPM violated its notice obligations, stating in July 2012: 27 It has come to EPA’s attention that a release of [PCBs] has occurred at the [Site] and that company officials became aware of the release some time in 2003 but did not report the release to EPA as required by the Permit for Corrective Action (WVD 004 32 5353) in effect at that time [the 1990 permit]. Dkt. No. 99-5, at MPM0051493 (emphasis added). EPA’s interpretation of the 1990 RCRA permit, which EPA itself issued, is entitled to substantial deference as a matter of law. See S. Appalachian Mountain Stewards v. Red River Coal Co., No. 2:14CV00024, 2015 WL 1647965, at *4 (W.D. Va. Apr. 14, 2015) (holding that agency was entitled to deference in interpretation of its permits) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 569 (1980)); Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Engineers, No. C10-1108-JCC, 2011 WL 1215605, at *4-6 & n. 5 (W.D. Wash. Mar. 30, 2011) (“The Court must defer to the Corps’ interpretation of its own permits and regulations.”), aff’d, 683 F.3d 1155 (9th Cir. 2012). In sum, as MPM has admitted, MPM was legally required under 40 C.F.R. § 270.14(d)(2) and the terms of the 1990 and 2008 permits to submit to regulators information regarding the PCB releases within 14 or 30 days of discovering them in 2003 and 2008, respectively. MPM was also legally required to provide information regarding the newly discovered PCB releases when it submitted its 2004 and 2007 permit-application updates. See 40 C.F.R. § 270.14(d)(2). 26 When MPM finally did provide its written March 16, 2012 notification to WVDEP relating to the 2008 PCBs, it specifically stated that it was doing so pursuant to “its RCRA Permit, No. WVD004325353,” which includes the 7- and 30-day notice requirements. Dkt. No. 92-19, at BK0000152. MPM did not report information relating to ENVIRON’s discovery of PCB releases in 2003 until EPA insisted it do so later in 2012. See Dkt. No. 99-5; Segall Suppl. Ex. 172. 27 EPA’s letter request is undated. However, MPM’s August 1, 2012 reply to that request references EPA’s “recent Information Request…concerning PCB contamination at MPM’s facility.” Segall Suppl. Ex. 172, at MPM0015729. MPM also has stated outright that the EPA request occurred in July 2012 in its Chemtura bankruptcy filing. See text accompanying note 20, supra. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 28 of 30 23 MPM failed by a wide margin to meet any of those obligations, and thus has failed to comply with the “legally required notices” element of the BFPP defense. As EPA has noted, timely compliance with legally required notices is necessary to ensure that regulators can fulfill their responsibility of determining whether prompt response to newly discovered releases of hazardous substances is needed. MPM’s belated and opportunistic reporting— performed many years after such reporting was required—fails to meet that statutory objective. Because the BFPP defense requires a demonstration of compliance with all of the statutory conditions for the defense, see PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 179-80 (4th Cir. 2013), and because MPM cannot satisfy the “legally required notices” element, MPM has no BFPP defense. Having no other defense, MPM should be held liable for contribution under CERCLA on summary judgment.28 CONCLUSION For all of the foregoing reasons, the Court should grant partial summary judgment in favor of UCC and against MPM, as follows:  Dismissing MPM’s state-law claims for restitution (Count VI) and declaratory judgment as to restitution (Count VII); and  Declaring MPM liable in contribution for its equitable share of any recoverable past or future removal costs, under CERCLA §§ 113(f)(1), 113(g)(2), 42 U.S.C. §§ 9613(f)(1), 9613(g)(2), and 28 U.S.C. § 2201(a) (UCC’s First and Second Claims for Relief). 28 In the event that the Court does not hold MPM liable for CERCLA contribution on summary judgment, UCC reserves the right to further challenge MPM’s BFPP defense at trial based on all available grounds. Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 29 of 30 24 Dated: July 21, 2016 Respectfully submitted, BEVERIDGE & DIAMOND, P.C. By: s/ Harold L. Segall Karl S. Bourdeau (Bar Roll No. 103740) Harold L. Segall (Bar Roll No. 103741) 1350 I Street, N.W., Suite 700 Washington, DC 20005 Tel.: (202) 789-6000 Fax: (202) 789-6190 kbourdeau@bdlaw.com hsegall@bdlaw.com Megan R. Brillault (Bar Roll No. 511541) 477 Madison Avenue, 15th Floor New York, NY 10022 Tel.: (212) 702-5400 Fax: (212) 702-5450 mbrillault@bdlaw.com Edward M. Grauman (Bar Roll No. 517387) 98 San Jacinto Boulevard, Suite 1420 Austin, TX 78701 Tel.: (512) 391-8000 Fax: (512) 391-8099 egrauman@bdlaw.com Attorneys for Defendant Union Carbide Corporation Case 1:11-cv-01542-BKS-ATB Document 152-1 Filed 07/21/16 Page 30 of 30 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK MPM SILICONES, LLC, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant. No. 1:11-CV-1542 BKS/ATB UNION CARBIDE CORPORATION’S SUPPLEMENTAL STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT ON UNJUST ENRICHMENT AND CONTRIBUTION UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT Pursuant to Local Rules 7.1(a)(3) and 56.1, Defendant Union Carbide Corporation (“UCC”) submits this supplemental statement of material facts as to which there is no genuine issue to be tried in support of its renewed motion for partial summary judgment on unjust enrichment and contribution under the Comprehensive Environmental Response, Compensation and Liability Act.1 238. Sampling conducted during the Phase II Investigation in 2003 (undertaken by ENVIRON on behalf of MPM) indicated the presence of PCBs in soils in the vicinity of the Permitted Hazardous Waste Storage Area and the Waste Incineration Area and in groundwater in the Environmental Protection Area that exceeded the federal soil and water quality standards. See Dkt. No. 80-17, at MPM0015860-61. These PCB releases were not previously known to facility representatives and were not been reported to federal or state regulators at the time UCC submitted its Resource Conservation and Recovery Act (“RCRA”) Part B permit or corrective 1 The paragraph numbers continue in sequence from the last numbered paragraph in UCC’s Statement of Material Facts in Support of Its Reply Memorandum of Law, dated June 22, 2016. Case 1:11-cv-01542-BKS-ATB Document 152-2 Filed 07/21/16 Page 1 of 3 2 action permit application. Segall Supp. Decl. Ex. 173 at 169-72;2 Dkt. No. 99-5 at MPM0051493; Segall S.J. Decl. Ex. 87 at MPM0015798-99, MPM0015827-31, MPM0015860- 61; see generally Dkt Nos. 78-12, 78-14, 78-15, 78-16, 78-17, 78-26, 78-27, 78-28, 79-1. 239. Sampling conducted in 2008 and 2009 in the area of the wastewater treatment unit (“WWTU”) revealed the presence of PCBs in soil below the concrete foundation of a closed and buried equalization basin. Dkt. No. 92-11 at 189-90; Dkt. No. 80-17 at MPM0015798-99, MPM0015831-33, MPM0015860-61; Dkt. No. 92-20 at 1-4, 29; Dkt. No. 78-30 at MPM_INT_DISC_0020127. This PCB release was not previously known to facility representatives were not reported to federal or state regulators at the time UCC submitted its RCRA Part B permit or corrective action permit application. Dkt. No. 92-11 at 189-90; Dkt. No. 80-17 at MPM0015798-99, MPM0015831-33, MPM0015860-61; Dkt. No. 92-20 at 1-4, 29; Dkt. No. 78-30 at MPM_INT_DISC_0020127; Segall Suppl. Decl. Ex. 173 at 276-78; see generally Dkt Nos. 78-12, 78-14, 78-15, 78-16, 78-17, 78-26, 78-27, 78-28, 79-1. Dated: July 21, 2016 BEVERIDGE & DIAMOND, P.C. By: s/ Harold S. Segall Karl S. Bourdeau (Bar Roll No. 103740) Harold L. Segall (Bar Roll No. 103741) 1350 I Street, N.W., Suite 700 Washington, DC 20005 Tel.: (202) 789-6000 Fax: (202) 789-6190 kbourdeau@bdlaw.com hsegall@bdlaw.com 2 “Segall Supp. Decl. Ex.” refers to exhibits attached to the Supplemental Declaration of Harold L. Segall in support of UCC’s Renewed Motion for Partial Summary Judgment on Unjust Enrichment and Contribution under the Comprehensive Environmental Response, Compensation and Liability Act, executed on July 21, 2016. Case 1:11-cv-01542-BKS-ATB Document 152-2 Filed 07/21/16 Page 2 of 3 3 Megan R. Brillault (Bar Roll No. 511541) 477 Madison Avenue, 15th Floor New York, NY 10022 Tel.: (212) 702-5400 Fax: (212) 702-5450 mbrillault@bdlaw.com Edward M. Grauman (Bar Roll No. 517387) 98 San Jacinto Boulevard, Suite 1420 Austin, TX 78701 Tel.: (512) 391-8000 Fax: (512) 391-8099 egrauman@bdlaw.com Attorneys for Defendant Union Carbide Corporation Case 1:11-cv-01542-BKS-ATB Document 152-2 Filed 07/21/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK MPM SILICONES, LLC, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant. No. 1:11-CV-1542 BKS/ATB SUPPLEMENTAL DECLARATION OF HAROLD L. SEGALL IN SUPPORT OF UCC’S RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT ON UNJUST ENRICHMENT AND CONTRIBUTION UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT I, Harold L. Segall, hereby declare as follows: 1. I am a member of the bar of the District of Columbia and the Commonwealth of Pennsylvania, and have been admitted pro hac vice to practice before this Court for the purpose of this action. I am a member of the law firm of Beveridge & Diamond PC, attorneys of record for Defendant Union Carbide Corporation (“UCC”). 2. I have knowledge of the matters stated herein and respectfully submit this supplemental declaration in support to UCC’s Renewed Motion for Partial Summary Judgment on Unjust Enrichment and Contribution Under the Comprehensive Environmental Response, Compensation, and Liability Act. 3. Annexed hereto as Exhibit 1721 is a true copy of a letter from Mark Leskowicz (MPM) to Bill Wentworth (EPA), dated August 1, 2012, responding to EPA’s Information 1 Exhibit numbers continue sequentially from the last exhibit in the Supplemental Declaration of Harold L. Segall in Support of UCC’s Motion for Partial Summary Judgment, dated October 14, 2015. Case 1:11-cv-01542-BKS-ATB Document 152-3 Filed 07/21/16 Page 1 of 2 2 Request, bearing production numbers MPM0015729 to MPM0015736. 4. Annexed hereto as Exhibit 173 is a true copy of relevant excerpts of the deposition transcript of Dennis Heintzman, taken on February 12, 2015. 5. Annexed hereto as Exhibit 174 is a true copy of relevant excerpts of the West Virginia Department of Environmental Protection Hazardous Waste Management Renewal Permit, dated May 29, 2008, beginning with production number PA_EPA_004607. I declare under penalty of perjury that the foregoing is true and correct. Executed: July 21, 2016 s/ Harold L. Segall Harold L. Segall (Bar Roll No.103741) Case 1:11-cv-01542-BKS-ATB Document 152-3 Filed 07/21/16 Page 2 of 2 FEDERAL EXPRESS Bill Wentworth (3LC20) MPM Silicones, LLC Sistersville Plant 3500 South State Route 2 Friendly, l/W 26146 momentive.com August 1, 2012 U.S. Environmental Protection Agency Region Ill 1650 Arch Street Philadelphia, PA 19103-2029 Re: MPM Silicones Facility EPA ID No. WVD004325353 Dear Mr. Wentworth: Momentive Performance Materials Inc. on behalf of MPM Silicones, LLC (collectively "MPM") writes in response to EPA's recent Information Request (the "Request") concerning PCB contamination at MPM's facility in Sistersville, West Virginia (the "Facility"). MPM submits this response to the Request in accordance with Section 104(e) of CERCLA, 42 U.S.C. § 9604(e}, as amended, and Section 3007(a) of RCRA, 42 U.S.C. § 6927(a). Promptly upon receiving the Request, MPM undertook a diligent investigation. to locate any information it had that was responsive to the Request. This response was prepared with the assistance of agents and representatives of MPM believed to have relevant information. The answers set forth herein, subject to inadvertent or undiscovered errors or omissions are based on and therefore necessarily limited by the records and information still in existence and thus far discovered in the course of the preparation of this response. Finally, because certain items of the Request seek documents and information about historical operations not conducted by MPM, portions of this response are not made on the basis of personal knowledge and were prepared exclusively by and with the assistance and advice of counsel, which advice was relied upon herein. MPM notes that it has never utilized or disposed of any PCBs used in manufacturing conducted at the Facility; rather PCB use and disposal at the Facility apparently arose from operations conducted by former Facility operators, including Union Carbide Corporation ("UCC") which owned and operated the Facility from the 1950s until the early 1990s. To the extent that MPM has any information about PCB use and disposal at the Facility, that information comes from historical documents which MPM obtained either in connection with its acquisition of the Facility in 2006 or subsequently through efforts to investigate MPM0015729 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 1 of 8 Bill Wentworth (3LC20) August 1, 2012 Page 2 the presence of PCB contamination at the Facility. MPM has not attempted to determine if any of its current employees had prior employment at the Facility with UCC or other entities that may have had some role in historical operations at the Facility. Subject to and without waiver of its objections, MPM makes the following response to the Request: GENERAL OBJECTIONS MPM objects to the Request insofar as it exceeds EPA's authority under RCRA and CERCLA. MPM objects to the Request to the extent it seeks information that is neither relevant nor likely to lead to the discovery of relevant information. MPM objects to the Request insofar as it seeks information regarding privileged documents and privileged communications, including without limitation materials subject to the attorney-client privilege and the work-product doctrine. MPM objects to the Request to the extent it is vague, overbroad, and unduly burdensome, and to the extent it requests MPM to produce information or documents that are already in the possession of EPA. MPM objects to the Request to the extent it seeks to require MPM to produce reports and other documents which it has previously submitted to EPA. Upon specific request, MPM will furnish duplicate copies of such reports or documents. MPM objects to the, Request insofar as it seeks to impose duties or require the performance of acts beyond the scope of applicable laws. SPECIFIC RESPONSES TO THE NUMBERED ITEMS OF THE REQUEST 1. For the time period beginning July 31, 2003, to the present, provide information concerning any and all monitoring, testing, or sampling activities associated with determining the extent of PCB contamination in and around the SB-71 area (i.e., surface soil, subsurface soil, sediment, and groundwater sampling). Your response should include all work plans, analytical results and lab data sheets, quality assurance data, comments and response to comments, recommendations, and summary information for the Phase I, Phase 11, and Phase Ill SB-71 Alternative Sampling plans. MPM0015730 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 2 of 8 Bill Wentworth (3LC20) August 1, 2012 Page 3 RESPONSE: MPM has not conducted any PCB testing in the SB-71 Area. MPM believes that the first PCB testing in that area during the relevant time period was conducted by Environ Corporation ("Environ") a consultant to General Electric Company ("GE") prior to or shortly after GE's acquisition of the Facility. Based on the results of Environ's testing, GE requested that Chemtura Corporation ("Chemtura", the preceding owner of the Facility, then known as Crompton Corporation) undertake further PCB testing at the Facility (in addition to the documents produced in response to item 1 of the Request, additional correspondence between GE - and later MPM - and Chemtura relating to GE's and MPM's requests that Chemtura investigate PCB contamination at the Facility are included in the documents produced in response to item 12 of the Request). After some negotiation, Chemtura appears to have agreed in a June 9, 2005 letter to GE to conduct a "limited soil investigation" (this letter is included in the response to item 12 of the Request). Chemtura then performed two phases of that investigation in the so-called "SB-71 area" and proposed a third phase which was approved in an October 22, 2007 email from Kelly Bunker of EPA. Chemtura did not perform that third phase of investigation. The documents responsive to this item of the Request, are included on the enclosed CD. 2. For the time period beginning July 31, 2003, to the present, provide information concerning any and all monitoring, testing, or sampling activities associated with determining the extent of PCB contamination in and around the Wastewater Upgrade Area (i.e., surface soil, subsurface soil, sediment, and groundwater sampling). Your response should include all work plans, analytical results and lab data sheets, quality assurance data, comments and response to comments, recommendations, and summary information. RESPONSE: In 2008, MPM unexpectedly encountered PCBs in connection with its efforts to develop new wastewater treatment infrastructure at the Facility. MPM subsequently undertook efforts to characterize the extent of PCB contamination in that area. Documents responsive to this item of the Request are included on the enclosed CD. It also appears that the Environ testing referred to in response to item 1 of the Request included some testing for PCBs in locations nearby this area. MPM does not have copies of all of the lab data sheets and other documents from the sampling conducted by its consultants in the Wastewater Upgrade Area. If EPA believes it needs these documents, MPM will attempt to obtain copies of them from its consultants. 3. For the time period beginning July 31, 2003, to the present, provide information concerning any and all monitoring, testing, or sampling activities MPM0015731 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 3 of 8 Bill Wentworth (3LC20) August 1, 2012 Page4 associated with determining the extent of PCB contamination in and around the Burn Bank Area (i.e., surface soil, subsurface soil, sediment, and groundwater sampling). Your response should include all work plans, analytical results and lab data sheets, quality assurance data, comments and response to comments, recommendations, and summary information. In addition, please provide a detailed plant map identifying the exact location of the "Burn Bank Area". RESPONSE: The "Burn Bank Area" is a not a term that is currently used to refer to any area of the Facility. MPM's only knowledge of the use of a similar term comes from UCC documents from the late 1970s and early 1980s which refer to disposal of wastes at a "burning bank". From the context of those documents, it appears that they likely refer to a location in the northern portion of the facility. Copies of UCC documents referring to a "burning bank" are included in Exhibit A, which is attached hereto, and also included on the enclosed CD (on the enclosed CD, these documents are provided in response to item 9 of the Request). Although MPM cannot identify the precise location of the "Burn Bank Area", MPM has provided information concerning all monitoring, testing, and sampling activities since July 31, 2003 associated with determining the extent of PCB contamination at the Facility in response to other items of the Request, including items 1, 2, 4 through 6, and 9. 4. For the time period beginning July 31, 2003, to the present, provide information concerning any and all monitoring, testing, or sampling activities associated with the North Inactive Site Area. Your response should include data associated with any leachate collection system, surface water runoff/storm water collection systems, soil borings, groundwater monitoring and sampling, or sediments from any stream which may come in contact with materials deposited in this landfill disposal site. RESPONSE: MPM is not aware of sampling conducted in the North Inactive Site Area since July 31, 2003, other than that contained in the Environ Report, which is included on the enclosed CD as part of MPM's response to item 1 of the Request, or in the annual RCRA Corrective Action reports which have been previously submitted to EPA (which are included on the enclosed CD as part of the response to this item of the Request). MPM has not included all of the lab data sheets associated with the annual RCRA Corrective Action reports on the enclosed CD given how voluminous they are. However, if EPA believes it needs those documents, MPM will provide them to EPA for copying. MPM0015732 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 4 of 8 Bill Wentworth (3LC20) August 1, 2012 Page 5 5. For the time period beginning July 31, 2003, to the present, provide information associated with any PCB quantification in the plant's wastewater treatment system and also in the plant outfall to the Ohio River. RESPONSE: Information associated with such quantification, to the extent it exists, is provided on the enclosed CD. 6. For the time period beginning July 31, 2003, to the present, provide copies of all correspondence with Kelly Bunker, EPA Region Ill PCB Coordinator, or any other staff in the Region's PCB Program, concerning Phase Ill PCB characterization at SB-71. RESPONSE: MPM had no communications with Kelly Bunker concerning the Phase Ill PCB characterization of SB-71. As indicated in MPM's response to item 1 of this Request, MPM is aware that Chemtura or Chemtura's consultant communicated with Kelly Bunker about a Phase Ill PCB characterization. To the extent that MPM has obtained copies of those communications, they are included on the enclosed CD. 7. For the time period beginning July 31, 2003, to the present, provide information concerning any and all monitoring, testing, or sampling activities associated with the areas referenced in Requests 1, 2, 3, and 4, above, that would be indicative of the presence of any other compound/chemical species that may be considered a "hazardous underlying constituent" which may have been deposited either separately or in conjunction with the PCB containing residues into the "Lime Pits" and then ultimately into the North Inactive Site. RESPONSE: Information responsive to this item of the Request has been provided in response to items 1 through 4 of the Request. To the extent that this item of the Request seeks information regarding what hazardous underlying constituents may have been deposited in the specified areas, MPM is not in a position to provide a definitive response. MPM has no firsthand knowledge of the disposal of hazardous substances into the Lime Pits or the North Inactive Site because both were closed many years prior to MPM's acquisition of the Facility. Likewise, MPM has no first-hand knowledge of the manufacturing formulations or processes that involved the use of PCBs at the Facility because use of PCBs ceased decades before MPM's acquisition of the Facility. Historical records produced in response to other items of this Request, particularly items 9 and 11, may suggest other hazardous underlying constituents that may have been deposited in the lime pits or the North Inactive Site. MPM0015733 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 5 of 8 Bill Wentworth (3LC20) August 1, 2012 Page 6 8. Provide a copy of the Purchase and Exchange Agreement between Crompton Corporation and GE Silicones WV, L.L.C., dated on or about April 24, 2003. RESPONSE: A copy of the Purchase and Exchange Agreement is included on the enclosed CD. 9. Provide copies of any historical documents regarding the Facility from the 1980's to the present which discuss the presence of PCBs at the Facility and any evaluation regarding regulatory reporting requirementS performed by Union Carbide. RESPONSE: MPM does not understand this item of the Request to seek privileged communications about MPM's evaluation of the presence of PCBs in connection with its claims and potential claims against former owners and operators of the Facility. Subject to that understanding, a copy of historical documents regarding the Facility from December of 1978 which discuss the presence of PCBs at the Facility or the related evaluation regarding regulatory reporting requirements performed by UCC are included on the enclosed CD. Please note that in addition to the documents on the enclosed CD identified as responding to this item of the Request, documents produced in response to other items of the Request, including items 1 through 6, and 12, are also responsive to this item. MPM has included documents predating 1980 in its response because it appears from the documents that investigations relating to the presence of PCBs at the Facility began in December of 1978 and continued into the 1980s. Because of the large number of documents on the attached CD, MPM, for EPA's convenience, attaches hereto as Exhibit A hard copies of some of the historical documents relating to UCC's use of PCBs at the Facility. 10. Provide information concerning any and all environmental monitoring, testing, or sampling activities associated with the process areas where PCBs were utilized as heat transfer fluids and thus may have been present in distillation bottoms. RESPONSE: MPM does not have first-hand knowledge of the use of PCBs at the Facility or the specific areas within the Facility where PCBs where used. EPA's use of the terms "heat transfer fluids" and "distillation bottoms" in this item of the Request is somewhat confusing. As the historical documents reflect, only small quantities of PCBs were used as heat transfer fluids, whereas the bulk of PCBs used at the facility were used as "pot chasers" in the manufacture of several products which MPM0015734 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 6 of 8 Bill Wentworth (3LC20) August 1, 2012 Page 7 resulted in the generation of "heavies" or distillation bottoms. Specifically, it appears from contemporaneous inventory records prior to the early 1970s that UCC purchased hundreds of thousands of pounds of PCBs, which according to contemporaneous manufacturing records were used as "pot chasers" in the manufacture of several products, including a product referred to as A-1100 and Cyanoethyltriethoxysilane ("CNE''), which resulted in the generation of "heavies" or distillation bottoms. As reflected in contemporaneous documents such as the production cost documents for the A-1100 and CNE, those heavies contained virtually all of the PCBs used as pot chasers. According to historical documents, most of the heavies were disposed of in a Neutralization Tank or in the lime pits at the Facility. Documents relating to UCC's use and disposal of PCBs are included on the enclosed CD in response to items 9 and 11 of the Request. To the extent that this item of the Request seeks information regarding monitoring, testing, or sampling activities at locations where UCC used PCBs in its manufacturing processes, MPM does not have specific information about where at the facility those manufacturing processes occurred. MPM has included information relating to the monitoring, testing, and sampling for PCBs that have occurred at various locations at the Facility in response to other items of the Request, including items 1 through 7, 9, and 12. 11. Provide information detailing the handling and disposal of he~t transfer fluids and distillation bottoms which may have contained PCBs at the Facility. RESPONSE: All of the information MPM has obtained relating to the handling and disposal of PCBs used in manufacturing processes at the Facility is derived from historical documents originally maintained by UCC. MPM has no firsthand information relating to that handling or disposal of PCBs used in manufacturing. However, the documentation available is substantial. A literal reading of this item of the Request might require the production of numerous boxes of documents comprised of historical inventory and manufacturing production records of UCC which relate to UCC's purchase and use of PCBs. MPM provides a sample of those documents in response to this item of the Request. If EPA wants to obtain a copy of these documents, MPM will produce them to EPA which can then arrange for copies to be made. Documents responsive to this item of the Request are also included in MPM's response to item 9 of the Request. 12. Identify any agreements or contracts with entities that may have some responsibility for and/or who are participating in the investigation and remediation of releases of hazardous waste and/or hazardous constituents from the Facility. MPM0015735 Case 1:11-cv-01542-BKS-ATB Document 152-4 Filed 07/21/16 Page 7 of 8 Bill Wentworth (3LC20) August 1, 2012 Page 8 Include with your response copies of any such agreements and all correspondence related to such agreements. RESPONSE: MPM understands the use of the term "entitles" in this item of the request to e>-9 ) oE Date Promoting a healthy environment. '/; f{ £ f-tt.rA I I g tL Signature kL:v.wd Signature PA_EPA_004607 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 1 of 28 deP west virginia department of environmental protection Hazardous Waste Management Renewal Permit Permittee: Address: Permit ID No.: EPA ID No.: Latitude: Longitude: MPM,Inc. 3500 WV State Route 2 Friendly, West Virginia 26146 WVD 004 325 353 WVD 004 325 353 39° 28' 59" N 81° 05' 17" w Pursuant to the West Virginia Hazardous Waste Management Act, (Chapter 22, Article 18 of the West Virginia Code, hereinafter called "the Act"), and the Hazardous Waste Management Rule (HWMR) (Title 33, Series 20), promulgated thereunder, a permit is issued to MPM hereinafter called the Permittee, to operate hazardous waste management units which consist of: four (4) hazardous waste storage containers, one (1) treatment tank, six (6) tank storage, one (1) incinerator, two (2) treatment surface impoundments, two (2) storage impoundments, one (1) disposal landfill at the above referenced facility located in Friendly, six mile south of Sistersville in Tyler County, West Virginia. The Permittee must comply with all terms and conditions of this permit and the applicable regulations. This permit consists of the conditions contained herein (including those in any and all attachments) and all the applicable provisions of HWMR and regulations contained in 40 CFR, Parts 260, 261, 262, 264, 266, 268, and 270, which have been incorporated, by reference, into the HWMR, and applicable provisions of the Act. PA_EPA_004608 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 2 of 28 This permit is based on the information submitted in the permit application (hereinafter referred to as the "Application"), received September 3, 2004, and subsequent submissions. Any inaccuracies found in this information or violations of terms or conditions of this permit may be grounds for the termination, revocation and reissuance, or modification of this permit and enforcement action. The Permittee must inform the West Virginia Department of Environmental Protection (WVDEP) by means of written notification to the Director, of Division of Water and Waste Management (DWWM), of any deviation from or changes in the submitted information, which would affect the Permittee's ability to comply with the applicable statues, rules, regulations, or permit conditions. This permit is effective as of May 30, 2008, and shall remain in effect until May 29, 2018, unless suspended, revoked, revoked and reissued, or terminated (40 CFR 270.41, 270.43) or continued in accordance with 40 CFR 270.51. Lisa A. McClung Director Division of Water and Waste Management i!4~oi -- 2 -- PA_EPA_004609 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 3 of 28 FACT SHEET For MPM Silicones, LLC EPA ID NUMBER: WVD 004 325 353 HAZARDOUS WASTE MANAGEMENT RENEW AL PERMIT This fact sheet accompanies the draft renewal permit for MPM Silicones, LLC, EPA ID Number WVD 004 325 353 (Permittee), located at Route 2, Sistersville, Tyler County, West Virginia and was prepared in accordance with Section 11.9 of the Hazardous Waste Management Rule (HWMR). The West Virginia Department of Environmental Protection, Division of Water and Waste Management (DWWM), intends to issue a Hazardous Waste Management Permit to MPM Silicones, LLC for the operation of two (2) surface impoundments, known as the Equalization Basin and the Panic Pond, six (6) tanks to store hazardous waste acids and solvents, one (1) treatment tank, one (1) operating landfill, one (1) closed landfill, one (1) Rotary Kiln incinerator, and corrective action covering groundwater monitoring at the Sistersville Plant location. I. Authority (a) Federal Law: The United States Environmental Protection Agency (EPA), under Section 3006(b) of the Resource Conservation and Recovery Act of 1976 (RCRA), has authorized the State of West Virginia to administer and enforce a hazardous waste program. (b) State Law: Chapter 22, Article 18 of the West Virginia Code, Hazardous Waste Management Act, hereinafter refetTed to as the "Act'', designates the Department of Environmental Protection (DEP) as the State lead regulatory agency for hazardous waste management. Chapter 22, Article 1, Section 7 ( 6) of the State Code charges the D WWM with administering and enforcing, under the supervision of the Cabinet Secretary, DEP, the provisions of the Act. Section 8 of the Act requires a person to have a permit in order to construct, modify, operate or close any facility, or site, used to store, treat, or dispose of hazardous waste. Presently the Permittee is storing hazardous waste under a state permit, which was continued in accordance with 40 CFR 270.51. PA_EPA_004610 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 4 of 28 Section 8 of the Act requires a person to have a permit in order to construct, modify, operate or close any facility, or site, used to store, treat, or dispose of hazardous waste. Presently the Permittee is storing hazardous waste under a state permit, which was continued in accordance with 40 CFR 270.51. II. PURPOSE OF PERMITTING PROCESS The permitting process provides an opportunity for the public, DWWM, and other agencies to evaluate the Permittee's ability and commitments to comply with the Act and the regulations promulgated there under. Section 11.9 of the HWMR requires the DWWM to prepare a draft permit, which sets forth, in one concise legal document, all the applicable requirements that the Permittee must comply with during the ten-year duration of the permit. Ill. PROCEDURES FOR REACHING A FINAL DECISION (a) Pursuant to Section 11.11.c of the HWMR, the public and other agencies are given forty-five (45) days to review and comment on the application, fact sheet, and the draft permit. A copy of these documents will be available for public review at the DEP, DWWM, Public Information Office 601- sih Street Charleston, WV 25304. The comment period will begin April 1, 2008 and end on May 15, 2008. All relevant comments should be submitted in writing to the attention of Anne Howell, DWWM, Public Information Office, 60l- 57th Street Charleston, WV 25304. . (b) If, during this forty-five (45) day comment period, the Director of DWWM finds sufficient public interest or if he receives a written notice of opposition to the draft permit and a request for a public hearing, a public hearing will be held. A Public Notice of the hearing shall be given thirty (30) days before the scheduled hearing. The hearing shall be scheduled at location convenient to the residents of Sistersville, West Virginia. Any person requesting a public hearing should include all reasonably available arguments, factual grounds, and supporting material. The request for a hearing should be addressed to Director, Division of Water and Waste Management, 601- 5yth Street Charleston, WV 25304. (c) The Director will consider the following in the permitting decision: 1) relevant written comments received during the comment period, PA_EPA_004611 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 5 of 28 for the change. The response to comments shall be sent to any person who requested the response. Any person aggrieved or adversely affected by the action of the Director concerning the permit has the right of appeal as provided under Section 20 of the Act. The permit shall become effective immediately upon issuance by the Director. Contact person for this pennit is Talal H. Fathallah, WV Department of Environmental Protection, 601 57th Street SE, Charleston, WV 25304, or (304) 926-0499 Ext: 1290. IV. FACILITY DESCRIPTION MPM Silicones, LLC Sistersville Plant is located on State Route 2, about 16 miles north of Interstate 77, Sistersville, Tyler County, WV. It has changed ownership over time. Currently it is owned by Momentive Performance Materials, Incorporated, operating as MPM Silicones, LLC. The plant manufacturers a complex range of silicone and silane products, which are used in forming esters, surfactants, emulsions, antifoams, oils, and Jther organic chemicals. The manufactured products are shipped to other facii.ities to develop products such as lotions, beauty products, and adhesives. The plant manages several permitted areas, which include containers, tanks, impoundments, a landfill and one incinerator. A brief description of the permitted area is provided in the following paragraphs. The Sistersville Plant generates approximately 20,000,000 pounds of hazardous waste per year, which is treated or disposed onsite or sent offsite for final disposal. The wastewater from the plant is treated in the plant's onsite wastewater treatment unit that includes an equalization basin impoundment and an emergency overflow impoundment. Capacity of the impoundments is approximately 1,000,000 gallons each. Most of the wastewater being produced from the plant on a daily basis is handled in the equalization basin. The emergency impoundment is designed to accommodate influx of overflows and/or releases under emergency situations. The contaminants are pumped to the equalization basin for treatment. The wastewater is then pumped onto the UNOX Reactor for skimming of oils and for biological treatment of the contaminants. The water from the reactor undergoes further treatment at an air stripper and is then discharged to the river under an NPDES permit. The sludge is sent to an onsite dewatering press. The solids are disposed of in the landfill. The water is returned to the wastewater treatment unit. PA_EPA_004612 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 6 of 28 V. PERMIT ORGANIZATION The permit is divided into module as outlined below: Module I, Module II, . Module III, Module IV, Module V, Module VI, Module VII, Module VIII, Module IX, ModuleX, Standard Conditions General Facility Conditions Container Storage Tank Storage Surface Impoundments (Settling and Panic Basins) Landfill Incinerator Groundwater Monitoring Post-Closure Conditions Corrective Action VI. BASIS FOR PERMIT CONDITIONS Module I of the permit is standard for all permitted treatment, storage, and disposal (TSO) facilities. These conditions are applicable to all permits, pursuant to 40 CFR 270, Subpart C, and are supported by the regulatory reference cited in the permit. In Module II of the permit, most of the conditions are a direct citation of a regulatory or statutory requirement. There are a few conditions in this module where DWWM considers the regulations vague or inadequate to cover a particular situation and relies on permitting policy. Examples are: 1) Frequency of verifying the analysis of each waste stream and the use of contractors for waste analysis in condition II-B of the pem1it, 2) In order to further support the closure performance standard of 40 CFR 264.111, DWWM has specified under permit condition II-H-5.b, an advance notification requirement prior to the Permittee's sampling under the Closure Plan, and 3) in order for DWWM to grant a partial release in the financial assurance required for closure, DWWM has stipulated in permit condition II-H-6 that closure certification by the Permittee is applicable to all partial closure and not just those involving land disposal units as specified in 40 CFR 264.115. PA__EPA__004613 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 7 of 28 MODULE I STANDARD CONDITIONS MPM Silicones LLC Sistersville Plant Permit Number: \WD004325353 Module I of the permit sets forth the standard conditions that are applicable to all hazardous waste management facilities. The regulations applicable to permitting, Parts 260 through 264, 266, 268, 270 and 279, of Title 40, Code of Federal Regulations, have been incorporated by reference into Sections 2 through 7, 9 through 11, and 14, respectively, of Title 33 Code of State Regulations Series 20, Hazardous Waste Management Rule (HWMR). (NOTE: The regulatory and/or statutory citations in parentheses are incorporated into the permit by reference.) 1-A EFFECT OF PERMIT (40 CFR 270.4, 270.30(G) AND 22-18-S(A) OF W.VA. CODE) The Permittee is allowed to manage hazardous waste in accordance with the conditions of the West Virginia Hazardous Waste Management Permit (the state portion of the full RCRA Permit). Any management of hazardous waste not authorized by this permit is prohibited, unless otherwise expressly or specifically exempted by law. Compliance with the permit during its term constitutes compliance, for purposes of enforcement, with the Hazardous Waste Management Act (Article 18, Chapter 22 of the West Virginia Code), (hereinafter, the ACT), except for those requirements not included in the permit which: 1) become effective by statute; or 2) are promulgated under 40 CFR, Part 268, restricting the placement of hazardous waste in, or on the land; or 3) are promulgated under 40 CFR, Part 264, regarding leak detection systems for new, replacement, and lateral expansions of surface impoundment, waste pile, and landfill units which will be implemented through the procedures of 40 CFR 270.42, Class 1 permit modifications; or 4) are promulgated under Subparts AA, BB, or CC of 40 CFR, Part 265, limiting air emissions. Issuance of this permit does not convey property rights of any sort or any exclusive privilege; nor does it authorize any injury to persons or property, any invasion of other private rights, or any infringement of State or local law or regulations. Compliance with the terms of this permit does not constitute a defense to any order issued or any action brought by the U.S. Environmental Protection Agency (US EPA) under Sections 3008(a), 3008(h), 3013, or 7003 of RCRA; Sections 104, 106(a), or 107, of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. '9601 et. seq., commonly known as CERCLA); or any other law providing for protection of public health or the environment. 1-13 PERMIT ACTIONS (40 CIFR 270.3i!ll(f)) This permit may be modified, revoked and reissued, or terminated for cause, as specified in 40 CFR 270.41, 270.42, and 270.43. This permit may also be reviewed and modified by the West Virginia Department of Environmental Protection, Division of Water and Waste Management (DWWM), consistent with 40 CFR 270.41, lo include any terms and conditions determined necessary to protect human health and the environment, and to achieve compliance with 270.32(b)(2). The filing of a request for a permit modification, revocation, and reissuance, or termination, or the notification of planned changes, or anticipated noncompliance on the part of the Permittee does not stay the applicability or enforceability of any permit condition. The Permittee shall not perform any construction associated with a Class 3 permit modification request until such modification request is granted and the modification becomes effective. 1-C SEVERABILITY The provisions of this permit are severable, and if any provision of this permit, or if the application of any provision of this permit, to any circumstance, is held invalid, the application of such provision to other circumstances and the remainder of this permit shall not be affected thereby. Page 1of127 PA_EPA_004614 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 8 of 28 1-D DEFINITIONS MPM Silicones LLC Sistersville Plant Penni! Number: VWD004325353 For the purpose of this permit, terms used herein shall have the same meaning as those set forth in the Act, HWMR, and 40 CFR Parts 260 through 264, 266, 268, 270, and 279, which have been incorporated by reference, unless this permit specifically states otherwise. Where terms are not otherwise defined, the meaning associated with such terms shall be as defined by a standard dictionary reference or the generally accepted scientific or industrial meaning of the term. The following definitions also apply to this permit. D-1 "Director" means the Director of the Division of Water and Waste Management, West Virginia Department of Environmental Protection. D-2 "Days" mean except as otherwise provided herein, calendar days; D-3 "Hazardous Constituent" means any constituent identified in Appendix VIII of 40 CFR, Part 261, or any constituent identified in Appendix IX of 40 CFR, Part 264; D-4 "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. D-5 "Secretary" means the Secretary of the West Virginia Department of Environmental Protection. 1-E FAILURE TO SUBMIT RELEVANT AND/OR ACCURATE INFORMATION Whenever the Permittee becomes aware that it failed to submit any relevant facts in the permit application, or submitted incorrect information in a permit application or in any report to the Director, DWWM, the Permittee shall notify the Director of such failure within seven (7) calendar days of becoming aware of such deficiency or inaccuracy. The Permittee shall submit the correct or additional information to the Director within thirty (30) days of becoming aware of the deficiency or inaccuracy (40 CFR 270.30(1)(11) and 270.32(b)). Failure to submit the information required in this permit or misrepresentation of any submitted information is grounds for termination of this permit (40 CFR 270.43). !-F DUTIES AND REQUIRIEMEl\ITS F-1 Duty to Comply (40 CFR 270.30(a)) The Permittee must comply with all conditions of this permit, except that the Permittee need not comply with the conditions of this permit to the extent and for the duration such noncompliance is authorized in an emergency permit. (See 40 CFR 270.61). Any permit noncompliance, except under the terms of an emergency permit, constitutes a violation of the Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application. F-2 Duty to Re-apply (40 CFR 270.30(b)) If the Permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the Permittee must apply for and obtain a new permit. F-3 Permit Duration (40 CFR 270.50 and 270.51) a. This permit shall be effective for a fixed term not to exceed 10 years. Each permit that includes a land disposal unit shall be reviewed by the Director five (5) years after the date of permit issuance and shall be modified as necessary as provided in 40 CFR 270.41. Page 2of127 PA_EPA_004615 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 9 of 28 MPM Silicones LLC Sistersville Plant Permit Number: VWD004325353 b. This permit and all conditions herein will continue in effect beyond the permit's expiration date, if the Permittee has submitted a timely, complete application (see Subpart B of 40 CFR 270) and, through no fault of the Permittee, the Director has not issued a new permit. F-4 Need to Halt or Reduce Activity Not a Defense (40 CFR 270.30(c)) It shall not be a defense for the Permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. F-5 Duty to Mitigate (40 CFR 270 30(d)) In the event of noncompliance with the permit, the r·~rmittee shall take all reasonable steps to minimize releases to the environment and s!-iatl carry out such measures as are reasonable to prevent significant adverse impact en human health or the environment. F-6 Proper Operation and Maintenance (40 CFR 270.30(e)) The Permittee shall, at all times, properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the Permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality control/quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit. F-7 Duty to Provide Information (40 CFR 270.30(h) and 264.74) The Permittee shall furnish to the Director, DWWM, wjthin a reasonable time designated by the Director, any relevant information which the Director, may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The Permittee shall also furnish to the Director, DWWM, upon request, copies of records required io be kept by this permit. F-8 Inspection and Entry (40 CFR 270.30(i)) The Permittee shall allow the Director, DWWM, or an authorized representative, upon the presentation of credentials and other documents as may be required by law to: a. Enter at reasonable times upon the Permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit; b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit; c. Inspect, at reasonable times, any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and d. Sample or monitor, at reasonable times, for the purposes of assuring permit compliance, or as otherwise authorized by the Act, any substances or parameters at any location. F-9 Monitoring and Recordkeeping (40 CFR 270 30U), 264.73, and 264.74) Page 3of127 PA_EPA_004616 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 10 of 28 MPM Silicones LLC Sistersville Plant Permit Number· WVD004325353 a. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity. b. The Permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, the certification required by 40 CFR 264.73(b)(9), and records of all data used to complete the application for this permit, for a period of at least three years from the date of the sample, measurement, report, certification, or application. This period may be extended, by request of the Director, at any time. c. The Permittee shall maintain records from all groundwater monitoring wells and associated groundwater surface elevations, for the active life of the facility, and for disposal facilities for the post-closure care period as well. F-10 Reporting Planned Changes (40 CFR 270.30(1)(1)) The Permittee shall give notice to the Director, DWWM, as soon as possible, of any planned physical alterations or additions to the permitted facility. Such notification does not waive the Permittee's duty to comply with the following: Pursuant to Section 8(a) of the Act, no person may construct or modify any facility or site for the treatment, storage, or disposal of hazardous waste without first obtaining a permit. Permitting of these alterations or additions to the facility shall be in accordance with the permit modification procedures of 40 CFR 270.41 or 270.42 that have been incorporated by reference into Section 11 of the HWMR. F-11 Anticipated Noncompliance (40 CFR 270.30(1)(2)) The Permittee shall give advance notice to the Director, DWWM, of any planned changes in the permitted facility, or activity, which may result in noncompliance with permit requirements. Such notice does not constitute a waiver of the Permittee's duty to comply with permit requirements. F-12 Transfer of Permits (40 CFR 270.30(1)(3), 270.40(a), and 264.12(c)) This permit may be transferred by the Permittee to a new owner or operator only after providing notice to the Director, DWWM, and only if the permit is modified, or revoked and reissued, pursuant to 40 CFR 270.40(b), 270.41 (b)(2), or 270.42(a). Before transferring ownership or operation of the facility during its operating life, the Permittee shall notify the new owner or operator, in writing, of the requirements of 40 CFR Parts 264, 268, and 270 (including all applicable corrective action requirements), and shall provide a copy of the RCRA permit to the new owner or operator. F-13 Compliance Schedule (40 CFR 270.30(1)(5)) Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted to the Director, DWWM, no later than fourteen (14) days following each scheduled date. F-14 Immediate Reporting (40 CFR 264.56(d)(1) and (2)) Immediate Reporting of Emergencies to Local Authorities and the On-Scene Coordinator or the National Response Center. Page 4 of 127 PA_EPA_004617 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 11 of 28 MPM Silicones LLC Sistersville Plant Permit Number: WVD004325353 a. Pursuant to 40 CFR 264.56(d)(1) and (2), if the facility's emergency coordinator determines that the facility has had a release, fire, or explosion, which could threaten human health or the environment, outside the facility, he/she must report his/her findings as follows: i. If his/her assessment indicates that evacuation of local areas may be advisable, he/she must immediately notify appropriate local authorities. He/she must be available to help appropriate officials decide whether local areas should be evacuated; and ii. He/she must immediately notify either the government official designated as the On-scene Coordinator for that geographical area, (in the applicable regional contingency plan under 40 CFR Part 1510) or the National Response Center (1- 800-424-8802). b. The report must include: i. Name and telephone number of the reporter: ii. Name, address, and telephone number of the facility; iii. Date, time and type of incident (e.g., release, fire); iv. Name and quantity of material(s) involved, to the extent known; v. The extent of injuries, if any; and vi. The possible hazards to human health or the environment, outside the facility. F-15 Twenty-four (24) hour Reporting (40 CFR 270.30(1)(6) and 270.33) The Permittee shall report.to the Director, DWWM, any noncompliance, which may endanger human he;:ilth or the environment. Any such information shall be reported orally as soon as possible, but no later than twenty-four (24) hours from the time the Permittee becomes aware of the circumstances. This report shall include the following: a. Information concerning the release of any hazardous waste which may endanger public drinking water supplies; and I::>. Information concerning the release or discharge of any hazardous waste, or of a fire or explosion at the facility, which could threaten the environment or human health outside the facility. The description of the occurrence and its cause shall include: i. Name, address, and telephone number of the owner or operator; ii. Name, address, and telephone number of the facility; iii. Date, time, and type of incident: iv. Name and quantity of material(s) involved; v. The extent of injuries, if any; vi. An assessment of actual or potential hazard(s) to the environment and human health outside the facility, where this is applicable, and; vii. Estimated quantity and disposition of recovered material that resulted from the incident. A written submission shall also be provided to the Director, Dl/WVM, within five (5) days of the time the Perrnittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period(s) of noncompliance (including exact dates and times); steps taken to minimize impact on the environment; whether the noncompliance has been corrected, and if not, the anticipated time it is expected Page 5 of 127 PA_EPA_004618 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 12 of 28 MPM Silicones LLC Sistersville Plant Permit Number: WVD004325353 to continue; and steps taken or planned to reduce, eliminate and prevent recurrence of the noncompliance. The Permittee need not comply with the five (5) day written notice requirement if the Director, DWWM, waives the requirement. Upon waiver of the five (5) day requirement, the Permittee shall submit a written report within fifteen (15) days of the time the Permittee becomes aware of the circumstances. F-16 Other Noncompliance (40 CFR 270.30(1)(10)) The Permittee shall report all other instances of noncompliance not otherwise required to be reported on a quarterly basis. The reports shall contain the information listed in Condition l- F-15. F-17 Submittal of Reports or Other Information (40 CFR 270.30(1)(7), (8), (9), and 270.31) All reports or other information required to be submitted pursuant to this permit shall be sent to: Director, Division of Water and Waste Management 601-5ih Street Charleston, WV 25304 ATTN: Hazardous Waste Permitting Unit 1-G BIENNIAL REPORTS Pursuant to 40 CFR 264.75, the Permittee must prepare and submit a single copy of a biennial report to the Director, DWWM, by March 1, of each even numbered year. The biennial report must be submitted on EPA form 8700-138. The report must cover facility activities during the previous calendar year and must include: G-1 The EPA identification number, name, and address of the facility; G-2 The calendar year covered by the report; G-3 For off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year; for imported shipments, the report must give the name and address of the foreign generator; G-4 A description and the quantity of each hazardous t1Jaste the facility received during the year. For off-site facilities, this information must be listed by EPA identification number of each generator; G-5 The method of treatment, storage, or disposal for each hazardous waste; G-6 The most recent closure cost estimate under 264.142, and, for disposal facilities, the most recent post-closure cost estimate under 264.144; and, G-7 The certification signed by the owner or operator of the facility or his authorized representative. 1-H WASTE MINIMIZATION REPORT H-1 Pursuant to 40 CFR 264.75(h), the Permittee must prepare and submit a single copy of a waste minimization report to the Director, DWWM, by March 1, of each even numbered year. The report shall include a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated. Page 6of127 PA__EPA__004619 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 13 of 28 MPM Silicones LLC Sistersville Plant Permit Number: WVD004325353 H-2 Annually, Permittee shall submit a copy of the certification maintained under 40 CFR 264. 73(b)(9) to the Director of DWWM. The certification should detail the on going "waste minimization program" in place and should be submitted no later than the first week of April every year. 1-1 SIGNATORY REQUIREMENT 1-1 All reports or other information submitted to or requested by the Director, DWWM, his designee, or authorized representative, shall be signed and certified in accordance with 40 CFR 270.11. 1-2 Changes to Authorization. If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, or because a new individual or position has responsibility for the facility's compliance with environmental laws and permits, a new authorization satisfying the requirements shall be submitted to the Director prior to or together with any reports, information, or applications to be signed by an authorized representative (40 CFR 270.11(c)). 1-J CONFIDENTIAL INFORMATION In accordance with Section 11.18 of the HWMR, any information submitted to the Director, Division of Water and Waste Management, pursuant to this permit, may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed in Section 11.19.b. and c. of the HWMR. If no claim is made at the time of submission, the Division of Water and Waste Management shall make the information available to the public. If a claim is asserted, the information shall be treated in accordance with the procedures in Section 11.18 of the HWMR. !~K DOCUMENTS TO BE MAINTAINED AT THE FAClUTY The Permittee shall maintain, at the facility, until closure is completed and certified by an independent registered professional engineer, all items required by 40 CFR 264.73, including the following documents and al! amendments, revisions, and modifications to these documents. K-1 V\/aste Analysis Plan, as required by 40 CFR 264.13, and this permit; K-2 Operating Record, as required by 40 CFR 264.73, and this permit; The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: a. Pursuant to 40 CFR 264.73(b)(1), a description and the quantity of each hazardous waste received, and the method(s) and date{s) of its treatment, storage, or disposal, at the facility, in accordance with the instructions contained in Appendix I of 40 CFR 264; b. Pursuant to 40 CFR 264. 73(b)(2), the location of each hazardous waste within the facility along with the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste managed in the disposal area must be recorded in the operating record. For all facilities. this information must include cross-references to specific manifest document numbers, if the waste was accompanied by a manifest. {Comment: See 40 CFR 264.119 for related requirements.} c. Records and results of waste analyses performed as specified in 40 CFR 264.13, 264.17, 264.314, 264.341, 264.1034, 264.1063, 264.1083, 268.4(a), and 268.7. Page 7of127 PA_EPA_004620 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 14 of 28 MPM Silicones LLC Sistersville Plant Permit Number: WVD004325353 d. Summary reports and details of all incidents that require implementing the contingency plan as specified in 40 CFR 264.56(j); e. Records and results of inspections as required by 40 CFR 264.1 S(d) (this data needs to be kept for only three (3) years). f. Monitoring, testing, or analytical data, and corrective action where required by 40 CFR 264, subpart F and 264.19, 264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252-264.254, 264.276, 264.278, 264.280, 264.302- 264.304, 264.309, 264.347, 264.602, 264.1034(c)- 264.1034(f), 264.1035, 264.1063(d)- 264.1063(i), 264.1064, and 264.1082 through 264.1090. g. All closure cost estimates under 40 CFR 264.142 and for disposal facilities, all post- closure cost estimates under 40 CFR 264.144. h. Pursuant to 40 CFR 264.73(b)(9), a certification by the Permittee, no less often than annually, that the Permittee has a program in place to reduce the volume and toxicity of hazardous waste that is generated to the degree determined by the Permittee to be economically practicable; and the proposed method of treatment, storage, or disposal, is that practicable method currently available to the Permittee which minimizes the present and future threat to human health and the environment. i. Records of the quantities, along with date of placement, for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to 40 CFR 268.5, a petition pursuant to 40 CFR 268.6, or a certification under 268.8, and the applicable notice required by a generator under 40 CFR 268.7(a). j. For an off-site treatment facility, a copy of the notice, and the certification and demonstration, if applicable, required by the generator or the owner or operator under 40 CFR 268.7 or 268.8; k. For an off-site land disposal facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator of a treatment facility under 40 CFR 268.7 and 268.8, whichever is applicable; and I. For an off-site storage facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator under 40 CFR 268.7 or 268.8; and m. For an on-site treatment facility, the information contained in the notice (except the manifest number), and the certification and demonstration (if applicable), required by the generator or the owner or operator under 40 CFR 268. 7 or 268.8; and n. For an on-site land disposal facility, the information contained in the notice required by the generator or owner or operator of a treatment facility under 40 CFR 268.8, whichever is applicable; and o. For an on-site storage facility, the information contained in the notice (except the manifest number), and the certification and demonstration, if applicable, required by the generator or the owner or operator under 40 CFR 268.7 or 40 CFR 268.8. K-3 Notifications from generators accompanying each incoming shipment of wastes subject to 40 CFR Part 268 Subpart D, that specify treatment standards, as required by 40 CFR 268.7 and this permit; Page 8 of 127 PA__EPA__004621 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 15 of 28 MPM Silicones LLC Sistersville Plant Permit Number: WVD004325353 K-4 Corrective action reports and records, if any, must be maintained for at least three (3) years after all corrective action activities have been completed. 1-L DISCLOSURE IN DEED Pursuant to Section 21 of the Act and Section 12 of the HWMR, the Permittee shall make a notation on the deed or lease to the facility property, or on some other instrument that is normally examined during title search, that will, in perpetuity notify any potential purchaser that the land has been used to manage hazardous waste. Such disclosure shall describe the location upon said property, identifying the type and quantity of hazardous waste and the method of storage, treatment, or disposal with respect to such waste. 1-M LAND DISPOSAL REQUIREMENTS M-1 GENERAL CONDITIONS a. The Permittee shall comply with all applicable self- implementing requirements of 40 CFR Part 268, and all applicable land disposal requirements, which become effective by statute. b. A mixture of any restricted waste with non-restricted waste(s) is a restricted waste under 40 CFR Part 268. c. Except as otherwise provided by 40 CFR Part 268, the Permittee shall not in any way dilute a restricted waste or the residue from treatment of a restricted waste as a substitute for adequate treatment to achieve compliance with 40 CFR, Part 268, Subpart D, to circumvent the effective date of a prohibition imposed by 40 CFR 268.3. d. Pursuant to 40 CFR 268. 7, the Permittee shall prepare and maintain a current list of the hazardous waste codes handled by the facility that are identified in 40 CFR 268, Subparts B and C. The list shall include these waste codes, and any associated treatment standards, and shall be updated through the inclusion of new treatment standards, as promulgated or amended. This list shall be provided to the WVDEP, DWWM representatives, or their designees, upon request. M-2 TESTING AND RELATED REQUIREMENTS a. The Permittee must test. in accordance with 40 CFR 268 ?(a), any waste generated at the facility, or use knowledge of the waste. to determine if the waste is restricted from land disposal. b. For restricted wastes with treatment standards expressed as concentrations in the waste extract, as specified in 40 CFR 268.40, the Permittee shall test the wastes or waste treatment residues, or extracts of such residues developed using the test Method 1311 described in US EPA Publication SW 846 and referenced in Appendix II of 40 CFR, Part 261 (Toxicity Characteristic Leaching Procedure, or TCLP) to assure that the wastes or waste treatment residues or extracts meet the applicable treatment standards of 40 CFR, Part 268 Subpart D. Such testing shall be performed as required by 40 CFR 264.13 and permit condition 11-B. c. A restricted waste for which a treatment technology is specified under 40 CFR 268.40 and 268.42(a) may be land disposed after it is treated using that specified technology or an equivalent treatment method approved under the procedures set forth in 40 CFR 268.42(b). Page 9of127 PA_EPA_004622 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 16 of 28 MPM Silicones LLC SistersvHle Plant Permit Number: WVD004325353 d. For restricted wastes with treatment standards expressed as concentrations in the waste, as specified in 40 CFR 268.40, the Permittee shall test the wastes or waste treatment residues (not an extract of such residues) to assure that the wastes or waste treatment residues meet the applicable treatment standards of 40 CFR Part 268, Subpart D. Such testing shall be performed as required by 40 CFR 264.13 and permit condition 11-8. e. The Permittee shall comply with all the applicable notification, certification, and recordkeeping requirements described in 40 CFR 268.7. M-3 STORAGE PROHIBITIONS a. The Permittee shall com ply with all applicable prohibitions on storage of restricted wastes specified in 40 CFR Part 268 Subpart E. b. Ex:cept as otherwise provided in 40 CFR 268.50, the Permittee may store restricted wastes in tanks and containers solely for the purpose of the accumulation of such quantities of hazardous wastes as necessary to facilitate proper recovery, treatment, or disposal provided that: i. Each container is clearly marked to identify its contents and the date each period of accumulation begins; and ii. Each tank is clearly marked with a description of its contents, the quantity of each hazardous waste received, and the date each period of accumulation begins, or such information for each tank is recorded and maintained in the operating records at that facility. iii. The Permittee may store restricted wastes for up to one (1) year unless the WVDEP, DWWM, or its authorized agent, can demonstrate that such storage was not solely for the purpose of accumulating such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment, or disposal. iv. The Permittee may store restricted wastes beyond one (1) year; however, the Permittee bears the burden of proving that such storage was solely for the purpose of accumulating such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment, or disposal. v. The Permittee shall not store any liquid hazardous waste containing polychlorinated biphenyls (PCBs) at concentrations greater than or equal to 50 ppm unless the waste is stored in a storage facility that meets the requirements of 40 CFR 761.65(b). This waste must be removed from storage and treated or disposed as required by 40 CFR Part 268 within one (1) year of the date when such wastes are first put into storage. Condition l.M-3(iv) above, that allows storage for over one (1) year with specified demonstration, does not apply to PCB wastes prohibited under 40 CFR 268.32. Page 10of127 PA__EPA__004623 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 17 of 28 PAGE LEFT INTENTIONALLY BLANK Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 18 of 28 MODULEX CORRECTIVE ACTION MPM Silicones LLC Sistersville Plant Permit Number. WVD004325353 The RCRA Corrective Action Program (CAP) requires investigation and cleanup of releases of hazardous constituents and hazardous waste that pose an unacceptable threat at current and former RCRA hazardous waste treatment, storage, and disposal (TSO) facilities. The objectives of the RCRA CAP is to evaluate the nature and extent of the releases of hazardous waste constituents; to evaluate facility characteristics; and to identify, develop, and implement and appropriate corrective measure or measures to protect human health and environment. X-A GENERAL CORRECTIVE ACTION REQUIREMENTS (40 CFR 264.100) The Permittee is required to establish a corrective program under this subpart must, at a minimum, discharge the following responsibilities: A-1 Ensure that regulated unit complies with the ground-water protection standard. A-2 Implement a corrective action program that p~events hazardous constituents from exceeding their respective concentration limits at the compliance point by removing the hazardous waste constituents or treating them in place. A-3 Begin corrective action within a reasonable time-period after the groundwater protection standard is exceeded. A-4 Implement a groundwater monitoring program to demonstrate the effectiveness of the corrective action program. A-5 Conduct a corrective action program to remove or treat in place any hazardous constituents that exceed concentration limits in groundwater: A-6 The Permittee is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. A-7 Corrective action measures under this paragraph may be terminated once the concentration of hazardous constituents is reduced to levels below their respective concentration limits. A-8 Ensure that the groundwater protection standard is not exceeded. A-9 Continue the corrective action for a long as necessary to achieve compliance with the groundwater protection standard. X-B COMPONENTS OF CORRECTIVE ACTION PROGRAM 8-1 The following components are necessary to ensure a complete corrective action program and the detail in each of these steps will vary depending on the facility and its complexity. a. Locate the source of contamination. b. Determine the extent of contamination. Page 45of127 PA__EPA__004658 Case 1:11-cv-01542-BKS-ATB Document 152-6 Filed 07/21/16 Page 19 of 28 MPM Silicones LLC Sistersville Plant Permit Number: WVD004325353 c. Determine actual and potential threats from the contamination to human health and the environment in both the short and long term. d. Implement stabilization measures to control the source of contamination. e. Evaluate the overall integrity of containment structures intended for long-term containment. f. Monitor the performance of any interim or final corrective measure(s) to ensure that human health and the environment are being protected. X-C RCRA CORRECTIVE ACTION PERMIT C-1 In December 1990, EPA issued a RCRA corrective action permit (RCRA CAP) to the Permittee to conduct site cleanup. In 1997, the RCRA CAP was modified to incorporate interim measures to address areas of contamination. The following requirements of the RCRA CAP have been completed: a. A RCRA Facility Investigation (RFI) of the North Inactive Site was conducted between January and June 1992 to determine if any areas warranted cleanup action. b. A Verification Investigation (VI) for the South Inactive Site, Waste Water Treatment System, Drum Staging Area, #3 Sludge Pond, and BTEX Area. c. Based on the recommendations in the VI, an RFI of the South Inactive Site, Waste Water Treatment System, #3 Sludge Pond, and the BTEX Area conducted in 1994 d. Interim measures were implemented at various Solid Waste Management Units (SWMUs). X.-D lf'