Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 1 of 18 PageID #: 232

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1 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 1 of 18 PageID #: 232 IN THE CIRCUIT COURT OF PENDLETON COUNTY, WEST VIRGiNIA CLEAN EARTH OF MARYLAND, INC., a Maryland corporation, PlaintfJ Civil Action No. 10-C- TOTAL SAFETY, INC., an Ohio corporation; DARIN M. DILLOW, individually and as President and CEO of Total Safety, Inc.; PAUL BILLOW, individually and as Vice-President of Total Safety, Inc.; MILLER ENVIRONMENTAL, INC., a West Virginia corporation; EMERGENCY RESPONSE & TRAINING SOLUTIONS, an Ohio corporation; CAL KELLY, individually and as Project Supervisor for ERTS; RKM ENVIRONCLEAN, INC., a Virginia corporation; INDEPENDENT CONTINENTAL CARRIES, INC., an Indiana corporation; and, CHARLES D. BOLE, individually and as President and CEO of Independent Continental Carriers, Inc. Oil Defendants. COMPLAINT For its complaint, the plaintiff, Clean Earth of Maryland, Inc. ( Clean Earth ), states as follows: 1. Clean Earth is a Maryland Corporation whose principal place of business is located at 1469 Oak Ridge Plaza, Hagerstown, Maryland, Defendant Total Safety, Inc. ( Total Safety ) is an Ohio corporation whose principal place of business Clean Earth believes is located at 7394 County Road, South Point, Lawrence County, Ohio. 3. Total Safety filed bankruptcy before the United States Bankruptcy Court for the Southern District of West Virginia, Chapter 7 Proceeding Case No. 3:l0-bk , Clean Earth obtained from the bankruptcy Court an Agreed Order Granting Motion to Lift Stay to Seek Recovery from the Debtor s Insurers which was entered on July 23, (See Exhibit A).

2 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 2 of 18 PageID #: Accordingly, Clean Earth s complaint against Total Safety is asserted only to the extent of Total Safety s available insurance coverage. 6. Defendant, Darin M. Dillow, is an individual who Clean Earth believes resides in the State of Ohio, and who was the President and Chief Executive Officer of Total Safety, Inc. 7. Defendant, Phillip Dillow, is an individual who Clean Earth believes resides in the State of Ohio, and who was the Vice-President of Total Safety, Inc. 8. Defendant, Miller Environmental, Incorporated ( Miller Environmental ) is a West Virginia corporation, whose principal place of business is located at 514 Hartman Run Road in Morgantown, Monongalia County, West Virginia. 9. Defendant, Emergency Response and Training Solutions, Incorporated ( ERTS ) is an Ohio corporation whose principal place of business is identified as 555 Oakmont Lane, Aurora, Portage County, Ohio. 10. Defendant, Calvin Cal Kelly is an individual, who Clean Earth believes is or was a supervisor for ERTS, and who Clean Earth believes resides in the State of Ohio. 11. Defendant, RKM Environclean, Inc. ( Environclean ) is a Virginia corporation, whose principal place of business is 396 East Midland Trail, Lexington, Virginia, Defendant, Independent Continental Carriers, Inc., ( Continental Carriers ) is an Indiana corporation, whose principal place of business is 1612 N. Althshire, Muncie, Indiana, Defendant. Charles D. Bole, is an individual, who is the President of Continental Carriers, and who Clean Earth believes resides at 1612 N. Althshire, Muncie, Indiana, Jurisdiction and Venue 14. This Court is vested with subject matter jurisdiction of this civil action pursuant to W. Va. Code This Court has jurisdiction of each of the defendants as each of them either separately or jointly conducted business in Pendleton County, West Virginia, related to the events in controversy in this civil action. 16. Venue is proper in this Court pursuant to W. Va. Code (a)(2) as the events which give rise to the matters in controversy arose as a result of events which occurred in Pendleton County, West Virginia. 2

3 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 3 of 18 PageID #: 234 Factual Background 17. Clean Earth operates a contaminated oil treatment facility ( Facility ) in Washington County, Maryland, pursuant to Permit No OPS-3065A granted by the State of Maryland. 18. Clean Earth s facility is authorized to accept oil contaminated wastes however the facility is not authorized to accept hazardous or other wastes not approved by Permit No OPS-3065A. 19. On or about July 16, 2008, a tractor trailer owned and operated by Continental Carriers and driven by defendant Charles D. Bole ( Bole ), transporting spent batteries, wrecked while traveling on West Virginia Route 33 near Judy Gap, Pendleton County, West Virginia ( Judy Gap site ). 20. During the wreck, diesel fuel from the tractor trailer was discharged on to the ground and some of the spent batteries spilled from the tractor trailer onto the ground at the site of the wreck. 21. As a result of the wreck, the grounds at or near the site of the wreck were contaminated with both spilled battery acid and diesel fuel. 22. Upon information and belief, Bole in his own capacity and on behalf of Continental Carriers hired Miller Environmental to undertake the immediate remediation of the site including collecting the spent batteries and the proper collection and treatment of the contaminated soils. 23. Upon information and belief, Miller Environmental began to collect the spent batteries and the contaminated soils into containers for treatment. 24. Upon information and belief, Miller Environmental tested the soils to determine the type and extent of contamination in the soils. 25. Upon information and belief, Miller Environmental based upon the result of the test of the collected soils determined that some, if not all, the collected soils were contaminated with battery acid and that those soils were deemed hazardous waste. 26. Upon information and belief, Miller Environmental labeled several, if not all, of the containers of the contaminated soils as hazardous wastes. 27. Upon information and belief, Miller Environmental disclosed not only to the Bole and Continental Carriers but to the other defendants or their representatives that some if not all the collected soils were contaminated with hazardous wastes. 3

4 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 4 of 18 PageID #: Upon information and belief, Miller Environmental was replaced by ERTS as the company to oversee the rernediation of the site, including the collection, storage, transportation and treatment of the contaminated soils. 29. Upon information and belief, ERTS contracted with Enviroclean to perform the actual remediation of the site, including the collection, storage, transportation and treatment of any contaminated soils. 30. Upon information and belief, ERTS employed the defendant Calvin Cal Kelly as a project supervisor who was responsible for the rernediation project including but not limited to the proper collection, transportation and treatment of the soils contaminated with either or both diesel fuel and battery acid. 31. Upon information and belief the defendant Enviroclean performed and participated in the remediation at the Judy Gap site including the collection, storage, transportation and treatment of contaminated soils. 32. Upon information and belief ERTS and/or Enviroclean tested the soils to determine the type and extent of contamination in the soils. 33. Upon information and belief ERTS and/or Enviroclean based upon the results of the test of the collected soils determined that some, if not all, the collected soils were contaminated with battery acid and that those soils were deemed hazardous waste. 34. Upon information and belief ERTS and/or Enviroclean disclosed not only to the Bole and Continental Carriers but also to the other defendants or their representatives that some if not all the collected soils were contaminated with hazardous wastes. 35. Upon information and belief, ERTS contracted with the defendants, Total Safety, Darin Dillow, and Paul Dillow for the transportation and treatment of the soils collected at the site. 36. Total Safety on August 15, 2008 requested permission to dispose of the soils collected from the vicinity of the wreck at Judy Gap site in Clean Earth s Maryland facility. 37. On August 15, 2008, Total Safety and Darin M. Dillow provided to the plaintiff a written certification entitled Non-Hazardous Profile Sheet signed by Darin M. Dillow which represented that the wastes from the Judy Gap site to be delivered by Total Safety were not hazardous wastes and did not contain any hazardous wastes. 38. On August 27, 2008 and August 28, 2008, the soils from the Judy Gap site were delivered to Clean Earth s facility for treatment and Clean Earth relying upon the certification accepted the soils from the Judy Gap siteanddisposed ofthose soils in its facility:- 4

5 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 5 of 18 PageID #: On September 18, 2008, Clean Earth was notified by the West Virginia Department of Environmental Protection that the Judy Gap site soils were contaminated with hazardous wastes and could not be deposited in Clean Earth s facility. 40. Upon receiving the notice, Clean Earth was required to and did remove all of the soils which were deemed contaminated as hazardous wastes from its facility and transported those soils for treatment to Clean Earth s RCRA Part B facility which is permitted to accept hazardous waste. 41. On September 22, 2008, the West Virginia Department of Environmental Protection Department issued a Notice of Violation to Continental Carriers. In the Notice of Violation, the West Virginia DEP alleged that Continental Carries caused or allowed five (5) violations of the West Virginia regulations governing the generation, treatment, storage, transportation and disposal of hazardous wastes. 42. On September 22, 2008, the West Virginia Department of Environmental Protection Department issued a Notice of Violation to ERTS. In the Notice of Violation, the West Virginia DEP alleged that ERTS caused or allowed five (5) violations of the West Virginia regulations governing the generation, treatment, storage, transportation and disposal of hazardous wastes. 43. On September 22, 2008, the West Virginia Department of Environmental Protection Department issued a Notice of Violation to Total Safety. In the Notice of Violation, the West Virginia DEP alleged that Total Safety caused or allowed five (5) violations of the West Virginia regulations governing the generation, treatment, storage, transportation and disposal of hazardous wastes. 44. Total Safety knew or should have known that the soils collected from the vicinity of the wreck at Judy Gap site were contaminated with hazardous wastes and could not be accepted for treatment in the Clean Earth s facility. 45. Total Safety knowingly misrepresented to Clean Earth that the soils from the wreck at Judy Gap site were not contaminated with hazardous wastes, when in fact Total Safety knew that those soils were in fact deemed hazardous wastes and could not be accepted at Clean Earth s facility. 46. Upon information and belief, Darin Dillow knew that the soils collected at the wreck at Judy Gap site were contaminated with hazardous wastes and were deemed to be hazardous wastes. 47. Upon information and belief, Darin Dillow knowingly misrepresented and failed to disclose to Clean Earth that the soils from the wreck at Judy Gap site were not contaminated with hazardouswastes, when in fact Darin Dillow knew that those soils were in fact hazardous wastes and could not be accepted at Clean Earth s facility. 5

6 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 6 of 18 PageID #: Upon information and belief,phil Dillow knew that the soils collected at the wreck at Judy Gap site were contaminated with hazardous wastes and were deemed to be hazardous wastes. 49. Upon information and belief, Phil Dillow knowingly misrepresented or failed to disclose to Clean Earth that the soils collected at the wreck at Judy Gap site were contaminated with hazardous wastes and were deemed to be hazardous wastes. 50. Upon information and belief, each of the defendants, independently or collectively, knew or should have known that the soils collected from the wreck at the Judy Gap site contaminated with battery acid were hazardous wastes and not merely oil contaminated wastes. 51. Upon information and belief, each of the defendants, independently or collectively knew or should have known that any container used to store soils contaminated with battery acid should be labeled to identify the contents of each container as hazardous wastes. 52. Upon information and belief, each of the defendants, independently or collectively failed to label or removed labels identifying the contents as hazardous wastes from the containers used to collect and store the contaminated soils prior to their transport to the plaintiffs facility. 53. Upon information and belief, each of the defendants, independently or collectively knew or should have known that hazardous wastes cannot be placed in a facility which is not authorized to accept hazardous wastes. 54. Each of the defendants had an affirmative duty prior to the delivery of the contaminated soils to Clean Earth s facility to disclose to Clean Earth that the soils were hazardous wastes. 55. Each of the defendants had an affirmative duty to disclose to Clean Earth the nature and content of the soils delivered to Clean Earth as hazardous wastes. 56. The defendants each had an affirmative duty to properly collect, label, transport and dispose of the hazardous wastes (contaminated soils) from the wreck at Judy Gap site. 57. Miller Environmental, ERTS, Calvin Cal Kelly, Enviroclean, Total Safety, Darin Dillow, Phil Dillow each had an affirmative duty to properly train and supervise themselves, their employees, and their sub-contractors to properly collect, store, label, transport, and dispose of hazardous wastes prior to and during the remediation of the soils contaminated as hazardous wastes by the wreck at Judy Gap site. 58: Continental Caffiersand- Bole each-had an affirmative-duty to not contarninatethe-- soffi dfjüdy Gap site and after the wreck had a duty to hire competent persons and entities to properly collect, store, label, transport, and dispose of the wastes created as a result of the wreck by Continental Carriers and Bole. 6

7 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 7 of 18 PageID #: Upon information and belief, Continental Carriers and Bole failed to hire competent persons or entities to complete the remediation of the area near the Judy Gap site. 60. Upon information and belief, ERTS failed to hire competent persons or entities to complete the remediation of the area near the Judy Gap site. 61. ERTS knew or should have known that soils contaminated with battery acid were hazardous waste, with that knowledge, upon information and belief, ERTS failed to hire competent persons or entities to undertake and complete the remediation, including the proper treatment of the contaminated soils: 62. Environclean knew or should have known that the soils at the Judy Gap site were contaminated with hazardous waste, and with that knowledge Enviroclean had an affirmative duty to ensure the proper collection, storage, transport, treatment and disposal of the hazardous wastes; to properly label any container used to store hazardous waste; to notify any person or entity used to transport the soils that the soils to be transported were hazardous wastes; to prepare a correct manifest or other written document to notify the receiver of the soils that they were contaminated hazardous waste; and to make sure that the hazardous waste contaminated soils were delivered to a facility authorized to accept and dispose of hazardous wastes. 63. Each of the defendants, independently or jointly, failed to carry out each of the affirmative duties identified in this complaint, as a result of each of the acts or omissions of each of the defendants, Clean Earth suffered damages and incurred significant costs and expenses to remediate its own facility and to properly dispose of the hazardous waste in a licensed facility. 64. As part of the remediation of the Judy Gap site, defendants, independently or jointly, had test performed upon the contaminated soils from the Judy Gap site, which revealed to the defendants that some of the soils were contaminated with hazardous waste. 65. Defendants, independently or jointly, with the knowledge that all or a part of the soils from the Judy Gap site were contaminated with hazardous waste, negligently, knowingly and/or purposefully failed to disclose their knowledge to Clean Earth. 66. On August 15, 2008, Total Safety, acting through its President and CEO, signed and presented a signed certification entitled non-hazardous Profile Sheet that the soils from the Judy Gap site did not contain any hazardous wastes although Total Safety and its officers knew that the soils were contaminated with hazardous wastes and could not be placed or disposed at Clean Earth s facility. 67. On August 15, 2008, Darin Dillow presented a signed certification entitled non Hazardous Profile Sheet that the soils from the Judy Gap site did not contain any hazardous waste although Darin Dillow knew that the soils were contaminated with hazardous wastes and could not be accepted for treatment at Clean Earth s facility 7

8 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 8 of 18 PageID #: Darin Dillow and Total Safety, knowing that the soils from the Judy Gap site were contaminated with hazardous wastes, denied Clean Earth s request to obtain certain test results from Triad Engineering of the soils, which test results would have shown that the soils from the Judy Gap site were contaminated with hazardous wastes and, with that knowledge, Clean Earth would have refused to accept the contaminated soils for treatment in Clean Earth s facility. COUNT I --STRICT LIABILITY IN TORT 69. Clean Earth repeats and re-alleges paragraphs 1 through 67 of the complaint as if set forth fully herein. 70. The generation, handling, treatment, storage, transportation and disposal of hazardous wastes are subject to extensive regulation by various state and federal agencies. 71. The improper generation, handling, treatment, storage, transportation and disposal of hazardous wastes is an ultra hazardous activity and any person involved in those activities are strictly liable for each and every injury or damage suffered as a result of each defendant s acts or omissions. 72. Defendants had an affirmative duty to comply with the laws of the State of West Virginia and the regulations promulgated pursuant thereto, regulating the generation, treatment, storage, transportation and disposal of any hazardous wastes created by the event on July 16, Defendants failed to comply with the requirements of the laws of the State of West Virginia regulating hazardous wastes thus each of the defendants, independently or jointly, are independently and/or jointly are liable in strict liability for each and every consequential damage suffered by Clean Earth. WHEREFORE, Clean Earth respectfully requests entry of judgment against defendants, individually and/or jointly, for strict liability in tort, and for an award of such compensatory damages against each of them as is available under law. COUNT II-- NEGLIGENCE 74. Clean Earth repeats and re-alleges paragraphs 1 through 72 of the complaint as if set forth fully herein. 75. Each of the defendants had duties related to the generation, handling, treatment, storage, transportation and disposal of hazardous wastes created as a result of the events at Judy Gap West Virginia. 76. Each of the defendants by action or omission violated each of the duties set out in this complaint and carelessly, recklessly and negligently caused injury and damage to Clean Earth. 8

9 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 9 of 18 PageID #: Clean Earth suffered damages as a result of the careless, reckless, and negligent acts or omissions of each defendant in violation of their duties as set out in this complaint. WHEREFORE, Clean Earth respectfully requests entry of judgment against defendants, individually and/or jointly, for negligence, and for an award of such compensatory damages against each of them as is available under law. COUNT III -- NEGLIGENCE PER SE 78. Clean Earth repeats and re-alleges paragraphs 1 through 76 of the complaint as if set forth fully herein. 79. Continental Carriers, ERTS, and Total Safety violated the laws and regulations governing the generation, handling, storage, transportation, treatment and disposal of hazardous wastes. 80. The violation of laws and regulations by Continental Carriers, ERTS, and Total Safety governing the generation, handling, storage, treatment and disposal of hazardous wastes constitutes negligence per Se As a result of the negligence per se by Continental Carriers, ERTS, and Total Safety, Clean Earth suffered damages. WHEREFORE, Clean Earth respectfully requests entry of judgment against Continental Carriers, ERTS, and Total Safety, individually and/or jointly, for negligence per Se, and for an award of such compensatory damages against each of them as is available under law. COUNT IV - FRAUD 82. Clean Earth repeats and re-alleges paragraphs 1 through 80 of the complaint as if set forth fully herein. 83. Upon information and belief, defendants made false and material misrepresentations to Clean Earth regarding the character and type of the wastes presented to the Clean Earth for treatment at Clean Earth s facility. 84. Upon information and belief, defendants knew or should have known that representations were false and were made with the intent to mislead Clean Earth and to cause the Clean Earth to accept the hazardous wastes for treatment at Clean Earth s facility. 85. Clean Earth relied upon the false statements and misrepresentations made by defendants and as a result suffered damages. 86. Darin Dillow presented to Clean Earth a verified statement which stated the wastes from the Judy Gap site were not or did not contain hazardous wastes. 9

10 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 10 of 18 PageID #: Darin Dillow knew the verified statement was false at the time he delivered it to Clean Earth. 88. Darin Dillow knew Clean Earth would rely upon the verified statement before accepting the wastes from the Judy Gap site for treatment at Clean Earth s facility. 89. Darin Dillow knew that if he revealed to Clean Earth that the wastes from the Judy Gap site were contaminated with hazardous wastes Clean Earth would not accept the waste for treatment in its facility. 90. Darin Dillow knew that he and his company would incur substantially more costs and expenses to dispose of the wastes from the Judy Gap site if those wastes were identified as hazardous wastes. 91. Darin Dillow acted with the intent to deceive and defraud Clean Earth. 92. As a result of the fraudulent and intentional acts of Darin Dillow, Clean Earth suffered damages. 93. Upon information and belief, Phil Dillow was an officer and involved in the active operation of Total Safety and as such knew of the fraudulent statement prepared and made by Darin Dillow to Clean Earth. 94. Upon information and belief, Phil Dillow knew Clean Earth would rely upon the fraudulent statement and would accept the wastes from the Judy Gap site for treatment in plaintiff s facility. - Earth. 95. Upon information and belief, Phil Dillow, intended to deceive and defraud Clean 96. As a result of the fraudulent and intentional acts of Phil Dillow, Clean Earth suffered injury and damages. WHEREFORE, Clean Earth respectfully requests entry of judgment against these defendants, individually and/or jointly, for fraud and for an award of such compensatory damages, punitive damages, attorney fees, litigation expenses, and court costs against each of them as is available under law. COUNT V - FRAUDULENT CONCEALMENT 97. Clean Earth repeats and re-alleges paragraphs 1 through 95 of the complaint as if set forth fully herein. 98. Defendants had a duty to make truthful statements and representations to Clean Earth regarding the characteristics and types of the wastes delivered for treatment in Clean Earth s facility. 10

11 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 11 of 18 PageID #: Defendants knew or should have known the soils from the Judy Gap site were contaminated with hazardous waste Defendants knew or should have known the statement presented by Darin Dillow and Total Safety was false, misleading, and fraudulent and with such knowledge defendants had a duty to disclose the nature of the wastes from the Judy Gap site as hazardous wastes Defendants knew or should have known Clean Earth would rely upon the fraudulent statement regarding the true nature of the wastes from the Judy Gap site and Clean Earth would accept the soils for treatment Defendants knew or should have known that soils exposed to battery acid would be deemed to be hazardous wastes and with such a designation would not be permitted to be deposited in a facility not authorized to accept hazardous wastes Upon information and belief, defendants knowingly withheld information from Clean Earth regarding the true character of the contamination of the soils from the Judy Gap site Upon information and belief, defendants fraudulent concealment of the true character of the contamination of the soils from the Judy Gap site was done with the intent to deceive and fraud Clean Earth As a result of defendants fraudulent concealment, Clean Earth suffered damages. WHEREFORE, Clean Earth respectfully requests entry of judgment against these defendants, individually and/or jointly, for fraudulent concealment and for an award of such compensatory damages, punitive damages, attorney fees, litigation expenses, and court costs against each of them as is available under law. COUNT VI- NEGLIGENT MISREPRESENTATION 106. Clean Earth repeats and re-alleges paragraphs 1 through 104 of the complaint as if set forth fully herein Defendants had a duty to make a reasonable investigation into the characteristics and types of wastes delivered for treatment in Clean Earth s facility Defendants had a duty to make truthful statements and representations to Clean Earth regarding the characteristics and types of the wastes delivered for treatment in Clean Earth s facility Through the exercise of reasonable care, defendants should have known the soils from the Judy Gap site were contaminated with hazardous waste Through the exercise of reasonable care, defendants should have known the statement presented by Darin Dillow and Total Safety was false and with such knowledge 11

12 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 12 of 18 PageID #: 243 defendants had a duty to disclose the nature of the wastes from the Judy Gap site as hazardous wastes Through the exercise of reasonable care, defendants should have known Clean Earth would rely upon the false statement regarding the true nature of the wastes from the Judy Gap site and Clean Earth would accept the soils for treatment Through the exercise of reasonable care, defendants should have known that soils exposed to battery acid would be deemed to be hazardous wastes and with such a designation would not be permitted to be deposited in a facility not authorized to accept hazardous wastes Defendants made negligent misrepresentations to Clean Earth regarding the true nature of the wastes from the Judy Gap site As a result of defendants negligent misrepresentations, Clean Earth suffered damages. WHEREFORE, Clean Earth respectfully requests entry of judgment against these defendants, individually and/or jointly, for negligent misrepresentation and for an award of such compensatory damages against each of them as is available under law. COUNT VII- NEGLIGENCE 115. Clean Earth repeats and re-alleges paragraphs 1 through 113 of the complaint as if set forth fully herein Defendants had a duty to exercise reasonable care in their acts and omissions concerning the cleanup and treatment of the wastes that were delivered for treatment in Clean Earth s facility Defendants had a duty to exercise reasonable care in the retention, training, and supervision of others to assist in the cleanup and treatment of wastes that were delivered for treatment in Clean Earth s facility Defendants failed to exercise reasonable care in their acts and omissions concerning the cleanup and treatment of the wastes that were delivered for treatment in Clean Earth s facility Defendants failed to exercise reasonable care in the retention, training, and supervision of others to assist in the cleanup and treatment of wastes that were delivered for treatment in Clean Earth s facility Defendants failure to exercise reasonable care proximately resulted in damages to Clean Earth. 12

13 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 13 of 18 PageID #: 244 WHEREFORE, Clean Earth respectfully requests entry of judgment against these defendants, individually and/or jointly, for negligence and for an award of such compensatory damages against each of them as is available under law. COUNT VIII- DECLARATORY JUDGMENT 121. Clean Earth repeats and re-alleges paragraphs 1 through 113 of the complaint as if set forth fully herein On October 8, 2009, a Final Award of Arbitration was entered granting Clean Earth a total award of $571, against Total Safety The Final Award of Arbitration is entitled to full faith and credit in this Court On April 6, 2010, the Final Award of Arbitration was entered as a Judgment in the Court of Common Pleas, Lawrence County, Ohio The Judgment is entitled to full faith and credit in this Court At the time of the relevant circumstances in this case, Total Safety was the named insured on a Commercial General Liability Policy No. G (hereinafter Policy ) issued by the defendant, Westchester Surplus Lines Insurance Company (hereinafter Westchester ) The insuring agreement of the Policy states, We will pay those sums that the Insured becomes legally obligated to pay as damages because of... property damage to which this insurance applies The Policy further states, This insurance applies to... property damage... if. {t]he. property damage is caused by an occurrence that takes place in the coverage.. teltitory The Policy defines Property damage as Physical injury to tangible property, including all resulting loss of use of that property The damages suffered by Clean Earth meet the Policy s definition of property damage The Policy defines Occurrence as an accident, including continuous or repeated exposure to substantially the same general harmful conditions Total Safety s negligence and, specifically, negligent misrepresentations meet the Policy s definition of occurrence The Policy defines Covered territory as The United States of America... 13

14 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 14 of 18 PageID #: As the loss occurred in West Virginia, it meets the Policy s definition of covered territory Accordingly, Westchester is liable under the Commercial General Liability Policy to satisfy the arbitration award against Total Safety In the alternative, Westchester is liable under the Policy to satisfy any judgment entered in this action against Total Safety for negligence and/or negligent misrepresentation The Policy also has a Contractors Pollution Liability endorsement The insuring agreement of the Contractors Pollution Liability endorsement states, We will pay those sums.. that the insured becomes legally obligated to pay as damages because of... property damage to which this insurance applies The endorsement states, This insurance applies to a loss on if.. out of your Or1(. [t]he loss arises 140. The endorsement defines loss as property damage, neither expected nor intended from the standpoint of the insured, caused by or resulting from a pollution condition and which results in a claim or suit The endorsement defines your work as Work or operations performed by you or on your behalf, specifically including representations made at any time with respect to the fitness, quality, durability, performance or use of your work; and [t]he providing of or failure to provide warnings or instructions The loss suffered by Clean Earth as a result of Total Safety s work, including but not limited to representations regarding Total Safety s work and the negligent providing of or failing to provide warnings or instructions meet the definitions of loss and work under the endorsement The endorsement defines property damage to include Physical injury to tangible property, including all resulting loss of use of that property and Cleanup costs The endorsement defines cleanup costs as expenses incurred in the investigation, evaluation, monitoring, testing, removal, containment, treatment, response, disposal, remediation, detoxification or neutralization of any pollution conditions to the extent required by applicable environmental laws The property damage suffered by Clean Earth as a result of Total Safety s work included cleanup costs as defined in the endorsement. 14

15 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 15 of 18 PageID #: The endorsement defines environmental laws to include state... laws, statutes, ordinances, regulations, and all amendments thereto, including state voluntary cleanup or risk-based corrective action guidance The property damage and cleanup costs suffered by Clean Earth as a result of Total Safety s work were required by environmental laws as defined in the endorsement The endorsement defines natural resource damage as damage for... loss of. land... or other similar resources... otherwise controlled by the... state... government including the reasonable costs of assessing such... loss resulting therefrom The property damage and cleanup costs suffered by Clean Earth included natural resource damage as defined in the endorsement The endorsement defines pollution condition as the discharge, dispersal, release, escape, migration, or seepage of any solid, liquid, gaseous or thermal, material matter, irritant or contaminant, including smoke, soot, vapors, fumes, acids, alkalis, chemicals, hazardous substances, hazardous materials, or waste materials, on, into, our upon land and structures thereupon, the atmosphere, surface water or groundwater The contaminated soil transferred to Clean Earth as a result of Total Safety s work created a pollution condition as defined in the endorsement The endorsement defines products-completed operations hazard as all. property damage occurring away from premises you own... caused by pollution conditions arising out or your product or your work The endorsement defines your product as Any goods or products. handled, distributed or disposed of by. You..., including representations made at any time with.. respect to the fitness, quality, durability, performance or use of your product; and [t]he providing of or failure to provide warnings or instructions The endorsement defines your work as Work or operations performed by you or on your behalf, specifically including representations made at any time with respect to the fitness, quality, durability, performance or use of your work; and [t]he providing of or failure to provide warnings or instructions The property damage, cleanup costs, and natural resource damage suffered by Clean Earth as a result of Total Earth s work and product meets the definition of product completed operations hazard as defined in the endorsement Accordingly, Westchester is liable under the Contractors Pollution Liability Endorsement to satisfy the arbitration award against Total Safety. 15

16 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 16 of 18 PageID #: In the alternative, Westchester is liable under the Contractors Pollution Liability Endorsement to satisfy any judgment entered in this action against Total Safety for pollution liability and completed operations hazard arising from Total Safety s negligence and negligent misrepresentation The Policy also has a Professional Liability endorsement The insuring agreement of the endorsement states, We will pay those sums that the insured becomes legally obligated to pay as damages because of claim(s) that result from the rendering or failure to render professional services for others to which this insurance applies The endorsement states, This insurance applies to claim(s) that result from the rendering or failure to render professional services only if... [t]he damages are caused by an alleged act, error, or omission The endorsement defines claim(s) as a request or a demand received by you or us for money... including the institution of suit, seeking damages arising from an act, error, or omission in the rendering or failure to render professional services The endorsement defines professional services as those architectural, engineering, consulting, project management or construction management services that are performed by you or on your behalf 163. The claim by Clean Earth for damages that were caused by the act(s), error(s), or omission(s) of Total Safety in its provision of professional services meets the endorsement s definition of those terms Accordingly, Westchester is liable under the Professional Liability Endorsement to satisfy the arbitration award against Total Safety In the alternative, Westchester is liable under the Professional Liability Endorsement to satisfy any judgment entered in this action against Total Safety for negligence or negligent misrepresentation arising out of its provision of professional services The endorsement defines your product as Any goods or products... handled, distributed or disposed of by... You..., including representations made at any time with respect to the fitness, quality, durability, performance or use of your product; and [t]he providing of or failure to provide warnings or instructions The endorsement defines your work as Work or operations performed by you or on your behalf, specifically including representations made at any time with respect to the fitness, quality, durability, performance or use of your work; and [t]he providing of or failure to provide warnings or instructions. 16

17 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 17 of 18 PageID #: The claim by Clean Earth for damages arising from Total Earth s work and product meets the endorsement s definition of those terms Accordingly, Westchester is liable under the Professional Liability Endorsement to satisfy the arbitration award against Total Safety In the alternative, Westchester is liable under the Professional Liability Endorsement to satisfy any judgment entered in this action against Total Safety for negligence or negligent misrepresentation arising out of its work and product. WHEREFORE, pursuant to the provisions of the West Virginia Declaratory Judgment Act, Clean Earth respectfully requests entry of judgment against Westchester for $571,835.58, plus pre-judgrnent interest of 4% per annum on and from April 6, 2010, or, in the alternative, for judgment against Westchester in an amount to be determined by the jury with statutory prejudgment interest from the accrual of Clean Earth s cause(s) of action against Total Safety to the date of entry of judgment, and for an award of Clean Earth s attorney fees, court costs, and litigation expenses associated with the preparation and prosecution of this complaint. PRAYER 171 On August 27 and 28, 2008, the soils from the Judy Gap site were delivered to Clean Earth s facility for treatment Relying upon the representations made by defendants and otherwise through their acts and omissions, Clean Earth accepted the soils from the Judy Gap site for treatment in its facility On September 18, 2008, Clean Earth was notified by the West Virginia Department of Environmental Protection that the soils were contaminated hazardous waste and could not be deposited in Clean Earth s facility Upon receiving the notice, Clean Earth was required to and did remove all of the soils received from the Judy Gap site along with all additional soils cross contaminated by the materials from the Judy Gap site which were deemed contaminated as hazardous wastes from its facility and transported those soils for treatment to Clean Earth s RCRA Part B facility which is facility permitted to accept hazardous waste for treatment As a result of all the acts or omissions of the defendants, acting independently or jointly, Clean Earth incurred the costs to remediate its own facility and pay for the proper handling and treatment of the hazardous wastes delivered from the Judy Gap site As a result of all of the acts or omissions of the defendants, acting independently or jointly, Clean Earth incurred costs and expenses totaling Five Hundred, Seventy One Thousand Eight Hundred and Thirty-five Dollars and Fifty-Eight Cents (S571,835.58). 17

18 Case 2:10-cv JPB Document 13-1 Filed 11/04/10 Page 18 of 18 PageID #: Clean Earth asserts that defendants are jointly and severally liable for the injury and damages suffered by Clean Earth Clean Earth prays that it be awarded damages as may deemed sufficient to compensate Clean Earth for the acts or omissions of each of the defendants Clean Earth prays that it be awarded damages as may be deemed sufficient to punish the defendants for their fraudulent, wanton, willful, and reckless acts and omissions Clean Earth prays that it be awarded reimbursement of its attorney fees, litigation expenses, and court costs against the defendants for their fraudulent conduct Clean Earth demands a jury trial in this matter. WHEREFORE, the plaintiff, Clean Earth of Maryland, Inc., demands judgment against each of the defendants, severally or jointly, in the sum of Five Hundred, Seventy One Thousand Eight Hundred and Thirty-five Dollars and Fifty-Eight Cents ($571,835.58), together with interest thereon as provided by the laws of the State of West Virginia and such other damages, costs, expenses and attorney fees as this Court may deem fair and just. CLEAN EARTH OF MARYLAND, INC. By Counsel STEPTOE & JOSON PLLC ) Of Counsel Robert D. Po1it(WVSB No. 2935) Ancil G. Ramey (WVSB No. 3013) Hannah B. Curry (WVSB No. 7700) Marc C. Bryson (WVSB No ) P.O. Box 1588 Charleston, WV Tel. No Fax No Counsel for Plaintiff 18