Northern California River Watch v. Chevron U.S.A. Inc. et al

Filing 37

ORDER re 36 Granting Stipulation Re Filing First Amended Complaint. Signed by Judge Claudia Wilken on 7/19/2010. (ndr, COURT STAFF) (Filed on 7/19/2010)

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Northern California River Watch v. Chevron U.S.A. Inc. et al Doc. 37 Dockets.Justia.com July 19, 2010 EXHIBIT A 1 2 3 4 5 6 7 8 9 10 11 J a c k Silver, Esq. SBN #160575 L a w Office of Jack Silver P o s t Office Box 5469 S a n ta Rosa, CA 95402-5469 T e l.(7 0 7 ) 528-8175 F a x .(7 0 7 ) 528-8675 lh m 2 8 8 4 3 @ s b c g lo b a l.n e t A tto rn e ys for Plaintiff N O R T H E R N CALIFORNIA RIVER WATCH U N I T E D STATES DISTRICT COURT N O R T H E R N DISTRICT OF CALIFORNIA N O R T H E R N CALIFORNIA RIVER W A T C H , a non-profit corporation, P la in tif f , v. C H E V R O N U.S.A. INC., CHEVRON C O R P O R A T IO N , and DOES 1 - 10, I n c lu s iv e , D e f e n d a n ts . / C A S E NO.: 4:09-cv-00669 CW F I R S T AMENDED COMPLAINT FOR I N J U N C T I V E RELIEF, CIVIL PENALTIES, R E S T I T U T I O N AND REMEDIATION [C le a n Water Act 33 U.S.C. 1251 et seq.; R e s o u r c e Conservation & Recovery Act 4 2 U.S.C. 6901 et seq.] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P la in tif f NORTHERN C A L IF O R N IA R IV E R WATCH (hereafter, "RIVER WATCH") b y and through its attorneys, and for its First Amended Complaint against Defendants, C H E V R O N U.S.A. INC., CHEVRON CORPORATION, and D O E S 1 - 1 0 , Inclusive (hereafter, " C H E V R O N " ) , states as follows: I. 1. N A T U R E OF CASE T h is is a civil suit brought against CHEVRON, and as yet unidentified DOES defendants u n d e r the citizen s u it e n f o r c e m e n t provisions of the Federal Water Pollution Control Act, also k n o w n as the Clean Water Act (hereafter, " C W A " ), 3 3 U.S.C. 1251 et seq., specifically CWA 505, 33 U.S.C. 1311, 1342 and 1 3 6 5 , t o stop CHEVRON from repeated and ongoing v io la tio n s of the C W A . These past and currently ongoing violations are detailed in the Notice o f Violations and In ten t to F ile Suit dated July 18, 2008, (hereafter, "CWA Notice",) which is m ad e part of the pleadings of this case and attached hereto as Exhibit A. 1 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. R IV E R WATCH alleges that CHEVRON, in the course of its ownership and/or operation o f one or m o re o f th e underground storage tank ("UST") facilities identified in this Complaint a n d i n t h e CWA Notice, is routinely violating the CWA's prohibitions against discharging a p o llu ta n t from a point source to waters o f th e United States without a National Pollutant D is c h a rg e Elimination System (hereafter, "NPDES") permit. (See CWA 301(a), 33 U.S.C. 1311(a).) RIVER W A T C H alleges that CHEVRON has violated "effluent standards or l i m i ta tio n s " by allowing petroleum hydrocarbons above State of California Maximum C o n ta m in a n t Levels to be released a n d discharged into waters of the United States, and s p e c i f ic a l ly into Boles Creek, Rohner Creek and/or the Eel River. 3. R IV E R WATCH alleges CHEVRON is also routinely v io la tin g th e CWA's prohibition a g a in st discharging a pollutant from a point source to w a te r s of the United States without a N P D E S permit by p e rm ittin g p e tro leu m h yd ro c a rb o n s and petroleum constituents to persist in so il and g ro u n d w a ter a t e a c h o f th e f a c ilities id e n tifie d in th e C W A N o tice b y f a ilin g to comply w ith directives issued by the Regional W a te r Quality Control Board, North Coast Region, and b y f a i li n g to implement an adequate Corrective Action Plan to remediate the pollution at the id e n tif ie d sites. 4. S p e c if ic a lly, this C o m p la in t s e e k s re lie f under the statutory provisions of the CWA for C H E V R O N 's discharge of pollution from current and/or former f u e l d is p e n sin g facilities and th e properties over which CHEVRON has past or present ownership or control identified as: a. b. F o r m e r Unocal Bulk Plant, 359 Main Street, Fortuna, California; and C h e v ro n Station # 9-3476, 12 Weed Boulevard, South Weed, California; in to the waters of the State of California and the U n i te d S t ate s in violation of the abovee n u m e r a te d statutes and laws. 5. R IV E R WATCH alleges that CHEVRON illegally discharges to waters of the United S ta te s which are habitat for threatened or endangered species as that term is defined by the C a lif o rn ia and the United States Environmental Protection Agency. 6. U n d e r 33 U.S.C. 1251(e), Congress d e c lar e d its g o a ls and policies with regard to public p a rticip a tio n in the enforcement of the CWA. 33 U.S.C. 1251(e) provides, in pertinent part: 2 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. P u b lic participation in the development, revision, and enforcement of any re g u la tio n , s ta n d a rd , e f flu e n t lim ita tio n , p la n o r p ro g ra m established b y the A d m in is tra to r or any S ta te under this chapter shall be provided for, encouraged, a n d assisted by the Administrator and the States. T h is First Amended Complaint is also brought against CHEVRON under the enforcement p ro v is io n s of the Resource Conservation and Recovery Act (h e re a f te r, " R C R A " , 42 U.S.C. 6 9 0 1 et seq., specifically RCRA 7002 (a)(1)(A), 42 U.S.C. 6972(a)(1)(A) and RCRA 7002(a)(1)(B), 42 U.S.C. 6972(a)(1)(B), to s t o p CHEVRON from repeated and ongoing v io la tio n s of the RCRA. These violations are detailed i n the Notices of Violations and Intent to File Suit dated July 18, 2008 and April 5 , 2 0 1 0 (hereafter, "RCRA Notices",) which are made p a rt of the pleadings of this case and attached hereto as Exhibit B. 8. S p e c if ic a lly, RIVER WATCH seeks relief under the provisions of the RCRA for C H E V R O N 's d is c h a rg e o f pollution from current and/or former fuel dispensing facilities and th e properties over which it has past or present ownership or control identified as: a. b. c. d. e. F o r m e r Unocal Bulk Plant, 359 Main Street, Fortuna, California; C h e v ro n Station #9-3476, 12 Weed Boulevard, South Weed, California; F o r m e r Chevron Station, 3135 Gibbons Drive, Alameda, California; F o r m e r Chevron Station, 5810 Nave Drive, Novato, California and, F o r m e r Chevron/Texaco Station Site, 713 Silverado Trail, Napa, California, in to the waters of the S t a te o f C a lif o rn ia and the United States in violation of the abovee n u m e r a te d statutes and laws. For purposes of this First Amended C o m p la in t, the facilities id e n tif ie d in Paragraph 4 and Paragraph 8 herein are hereafter referred to collectively a s "the F a c il itie s" . 9. R I V E R W A T C H alleges that CHEVRON's use and storage of petroleum and other p o llu ta n ts at the Facilities, as described in detail in the RCRA Notices, regularly violates s ta n d a rd s , regulations, conditions, requirements or prohibitions e f f e c tiv e pursuant to the RCRA r e g a r d i n g storage of petroleum and like pollutants. See 42 U.S.C. 6972(a)(1)(A). 3 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. R IV E R WATCH a lle g e s th a t C H E V R O N is ro u tin e ly v io la tin g the RCRA's prohibition a g a in s t creating an imminent and substantial endangerment to human health and the environment b y its operations at the Facilities, as identified in the RCRA Notices, which operations have c a u s e d contamination of soil, groundwater and surface water. See 42 U.S.C. 6972(a)(1)(B). F u rth e r, that pollutants at the Facilities leach in to g ro u n d w a te r f ro m current and former USTs w h ic h have either been removed f ro m o r abandoned at the Facilities without adequate measures ta k e n to remove pollutants from soil and groundwater. 11. R IV E R WATCH alleges that CHEVRON is also routinely violating provisions of the R e g io n a l Water Quality Control Board, North Coast Region's Basin Plan with respect to a. b. Pollution remediation; E n v iro n m e n ta l Protection Agency regulations codified in the Code of Federal R e g u la tio n s ; c. T o x ic s standards p r o m u l g ate d by the California State Water Resource Control B o a rd ; and, d. B y failing to implement an adequate and comprehensive Corrective Action Plan to remediate the contamination at each of the Facilities. 12. R I V E R WATCH s e e k s d e c l a ra to r y r e lie f , in j u n c tiv e relief to prohibit future violations, th e imposition o f civil penalties, and other relief for CHEVRON's violations of the CWA's p ro h ib itio n of discharging a p o llu ta n t f ro m a p o in t s o u rc e to waters of the United States without a NPDES p e r m i t, for CHEVRON's violations of the RCRA's standards and regulations a p p l ic a b le to the use and storage of petroleum and other pollutants, and for CHEVRON's v io la tio n s of the RCRA's prohibition against creating an imminent and substantial endangerment to human health and the environment. II. 13. P A R T I E S TO THE ACTION P lain tiff NORTHERN CALIFORNIA RIVER W A T C H , is a 5 0 1 (c )(3 ) non-profit public b e n e f it corporation d u l y o r g a n i z e d u n d e r t h e l a w s of the State of California, with headquarters a n d main office located at 500 North Main Street, Suite 110, Sebastopol, California. RIVER W A T C H is dedicated to protect, e n h a n ce a n d h e lp re sto re th e s u rf a ce a n d s u b s u rf a ce waters of 4 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N o rth e rn California. RIVER WATCH's members live in Northern California, including H u m b o ld t, Siskiyou, A l a m e d a , Marin and Napa Counties, where the Facilities under C H E V R O N 's operation and/or control are located. 14. M e m b e r s and supporters of RIVER WATCH RIVER WATCH reside in the vicinity of, d e riv e livelihoods from, own p ro p e rty n e a r, a n d /o r re c re a te on, in o r n e a r a n d /o r o th e rw is e use, e n jo y and benefit from the w a te rw a ys , w a te rs h e d s a n d a ss o c ia te d n a tu ra l re so u rc e s in to which C H E V R O N discharges pollutants as alleged herein, or by which CHEVRON's operations a d v e rs e ly affect th o s e m e m b e r s ' in te re sts , in v io la tio n o f C W A 301(a), 33 U.S.C. 1311(a) R C R A 7002(a)(1)(A), 42 U.S.C. 6972(a)(1)(A) and R C R A 7 0 0 2 ( a )( 1 )( B ), 42 U.S.C. 6 9 7 2 ( a ) ( 1 ) ( B ) . Said members use the affected waters and watershed areas for domestic water, re c re a tio n , sports, fishing, swimming, hiking, photography, nature walks, religious, and spiritual p ra c tice s, and the like. The health, economic, recreational, aesthetic and environmental interests o f RIVER WATCH and its members have been, are being, and will c o n tin u e to be adversely a f f e c te d by CHEVRON's unlawful violations as alleged herein. RIVER WATCH contends th e r e exists injuries in fact to its members, causation of these injuries by CHEVRON's c o m p l a in e d of conduct herein, and the likelihood that the requested relief will redress these in j u rie s . 15. R IV E R WATCH is informed and believes a n d on said information and belief alleges that d e f en d a n t CHEVRON U.S.A. Inc. is a corporation re g is te re d in th e State of California, doing b u s in e s s in San Ramon, California under the name of CHEVRON U.S.A. INC. 16. R IV E R WATCH is informed and believes a n d on said information and belief alleges that d e f en d a n t CHEVRON CORPORATION is a corporation registered in the State of California, d o in g business in San Ramon, California under the name of CHEVRON Corporation. 17. D e f en d a n ts D O E S 1-10, In c lu s iv e , re sp e c tiv e ly, a re p e rs o n s , p a rtn e rs h ip s , corporations a n d entities, who are, or were, responsible for, or in some way contributed to, the violations w h ic h are the subject of this First Amended Complaint, or are, or were, responsible for the m a in te n a n ce , supervision, m a n a g em e n t, o p e ra tio n s , or insurance coverage of the Facilities. The n a m e s, identities, capacities, and functions of DOES 1-10, Inclusive, are p re se n tly unknown to 5 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R I V E R W A T C H . RIVER WATCH shall seek leave of court to amend this First Amended C o m p la in t to insert th e tru e n a m e s o f s a id D O E S Defendants w h e n th e ir identities and capacities h a v e been ascertained. III. 18. J U R IS D I C T I O N A L ALLEGATIONS S u b je c t m a tte r ju ris d ic tio n is c o n f e rre d u p o n th is C o u rt b y C W A 5 0 5 (a )(1 ), 33 U.S.C. 1365(a)(1), which states in part, " a n y citizen may commence a civil action o n h is o w n b e h a lf a g a in s t a n y person . . . who is a l le g e d to be in violation of (A) an effluent standard or limitation . . . . or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." F o r purposes o f C W A 505, "the term `citizen' means a person or persons having an in te re st which is or may be adversely affected." S u b je c t m a tte r ju ris d ic tio n is further conferred u p o n this Court by RCRA 7002(a)(1), 42 U.S.C. 6972(a)(1), which states in part, " ...a n y person may commence a civil action o n h is o w n behalf (A) against any p e rs o n ... who is alleged to be in violation of any permit, standard, regulation, c o n d itio n , requirement, prohibition or order which has become effective p u rs u a n t to this chapter, or (B) against any p e rs o n ...w h o h a s c o n trib u te d o r who is contributing to the past o r p re se n t handling, storage, treatment, transportation o r disposal of any solid or hazardous waste w h ic h may present an imminent and s u b s ta n tia l endangerment to health or the environment." 19. P u r s u a n t to CWA 505(b)(1)(A), 33 U.S.C. 1365(b)(1)(A), RIVER WATCH gave n o tic e of the CWA violations alleged in this First Amended Complaint more than sixty (60) days p rio r to commencement of this la w s u it, to : (a) CHEVRON; (b) the United States Environmental P r o te c tio n Agency, both federal and regional, and (c) the State of California Water Resources C o n tro l Board. 20. P u r s u a n t to CWA 505(c)(3), 33 U.S.C. 1365(c)(3), a copy o f t h i s First Amended C o m p la in t shall be served on the U n ite d S ta te s A tto rn e y G e n e ra l a n d the Administrator of the f e d e ra l Environmental Protection Agency. 6 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. P u r s u a n t to R C R A 7 0 0 2 (2 )(A ), 4 2 U.S.C. 6972(2)(A), RIVER WATCH gave notice o f the R C R A v i o l a tio n s alleged in this First Amended Complaint more than ninety (90) days p rio r to the commencement of this lawsuit to: (a) CHEVRON, (b ) the United States E n v iro n m e n ta l Protection Agency, both federal and regional, (c) the State of California Water R e so u rc e s Control B o a rd , a n d (d ) the State of California Integrated Waste Management Board. 22. V e n u e lies in the N o rth e rn D is tric t o f C a lif o rn ia , p u rs u a n t to C W A 5 0 5 (c )(1 ) , 33 U.S.C. 1365(c)(1), and RCRA 7002(a) and (b), 42 U.S.C. 6972(a) and (b), as the Facilities which R IV E R WATCH contends h a v e b e e n and/or remain under CHEVRON's ownership and/or c o n tro l and at which illegal discharges have occurred, which are the source of the violations c o m p lain e d of in this action, are located within this District. IV . S T A T E M E N T OF FACTS R IV E R WATCH incorporates b y re f ere n c e a n y allegations set forth above in Paragraphs 1 through 2 2 in c lu d in g th e CWA N o tic e and the RCRA N o tic e s a s th o u g h f u lly s e t f o rth herein. R IV E R WATCH is informed and believes, and on such information a n d belief alleges as f o l lo w s : 23. C H E V R O N owns, operates, leases or is otherwise legally responsibility for the re m e d ia tio n of the F a c ilitie s, a n d f o r th e re m e d ia tio n o f th e c o n ta m i n a tio n a t the Facilities due to the presence o f petroleum hydrocarbons which have leaked or otherwise escaped from the F a c iliti e s . 24. T h e Facilities have been identified as sources of pollutants which pose a threat to human h e a l th and/or to the local environment. I n th e early-1970's, p e t ro l e u m c o n ta m in a t io n was first d e te c te d in soil and groundwater beneath the Fortuna site in the early 1970s, beneath the Weed, A la m e d a a n d N o v a to sites in the mid 1980's and beneath the Napa site in 1990. Subsequent in v e stig a tio n a t th e Facilities in d ic a te d the contamination w a s a n d is a ttrib u ta b le to unauthorized re le a se s from U S T s a n d p ip in g s ys te m s , s u rf a ce s p ills a n d /o r p o o r maintenance or operational p r a c tic e s . 25. C H E V R O N has stored and currently stores (at the Weed site) large quantities of p e tro le u m products in USTs at the Facilities in a manner which has allowed significant quantities 7 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o f hazardous p e tro le u m constituents, in c lu d in g M T B E , to b e d is c h a rg e d to s o il and groundwater b e n e a th the Facilities, beneath adjacent properties, and in t o s u r f a c e w a te r s o f the United States. T h e se unauthorized discharges into soil, groundwater and surfaces waters are ongoing and c o n tin u in g a t th e p re se n t tim e , c re a tin g a n im m in e n t a n d su b sta n tial endangerment to public h e a lth and the environment. 26. T h e discharges a n d releases b y C H E V R O N a s alleged herein and in the RCRA Notices a re both k n o w in g a n d in te n tio n a l. C H E V R O N in th e c o u rs e o f o p e ra tio n s a t th e F a c ilitie s, has u s e d , stored a n d s o ld p e tro le u m products a t th e F a c ilitie s, which are known to contain benzene, to lu e n e , TPHg, ethlybenzene, xylenes, and/or MTBE, and intends or has intended that such p ro d u c ts be sold to a n d used by the public. Benzene and toluene are known carcinogens and/or re p ro d u c tiv e toxins, and have been listed chemicals under Proposition 65 since at least 1991. 27. C H E V R O N has known of the contamination at th e Facilities at least since the 1970s as n o te d above, a n d is a ls o a w a re that failing to remediate the pollution allows the contamination to migrate through soil and groundwater a t a n d adjacent to the Facilities, and to continually c o n t a m inate and re-contaminate actual and potential sources of drinking water. 28. R e g u la to ry agencies have ordered CHEVRON to investigate and remediate petroleum c o n ta m in a tio n at th e F a c ilitie s f o llo w in g th e d is c o v e ry o f p e tro le u m releases. CHEVRON has c o n d u c te d some site investigations and remedial work in response to agency directives, h o w e v e r, significant levels of petroleum contamination remain in so il a n d groundwater beneath a n d adjacent to the Facilities. 29. B a se d upon current levels of contamination, CHEVRON has been unsuccessful in abating th e contamination. To date, the levels of TPHg, benzene, toluene, ethylbenzene, and xylenes re m a in high above the State of California's a llo w a b le a n d e sta b lis h e d M a x im u m Contaminant L e v e ls (hereafter, "MCLs") and/or Water Quality Objectives (hereafter, "WQOs") for said c o n stitu e n ts in s u rf a ce and groundwaters, creating an imminent and substantial endangerment to public health and the environment. 30. S u r f a ce and groundwater in the areas of California in which the Facilities are located have b e e n designated by regulatory agencies as capable of supporting domestic supply. 8 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31. T h e illegal discharges o f pollutants and activities complained of in this First Amended C o m p la in t occur in th e w a te rw a ys a n d w a te rs h e d s id e n tif ie d in the CWA Notice and the RCRA N o t ic e s , a l l o f which are waters of the United States. The Regional Water Quality Control B o a r d , North Coast Region, has determined t h o s e w a t e r s h e d a r e a s a n d a f f e c t e d waterways are b e n e fic ia lly used for drinking w a te r, water contact recreation, non-contact water recreation, f re sh water habitat, wildlife habitat, preservation of rare and endangered species, fish migration, f is h spawning, industrial service supply, navigation, and sport fishing. 32. V io la tio n s of the statutes alleged in this First Amended Complaint are a major cause of th e continuing decline in water quality, and a continuing threat to e x is tin g a n d f u tu re drinking w a t e r supplies in Northern C a l i f o rn i a . With every discharge, groundwater supplies are c o n tam in a ted . These discharges can and must be c o n tro lled in o rd e r for the groundwater supply to be returned as a safe source of drinking water. V. A. 33. S T A T U T O R Y AND REGULATORY BACKGROUND C lean Water Act C W A 301(a), 3 3 U .S .C . 1311(a), prohibits the discharge of pollutants from a "point s o u rc e " into the navigable waters of the United States, unless such discharge is in compliance w ith applicable effluent limitations as set by the Environmental Protection Agency and the a p p lica b le state agency. T h e se lim its are to be incorporated into a NPDES permit specifically f o r that point source. Additional sets of regulations are set forth in the Basin Plan, California T o x i c s P la n , the Code of Federal Regulation and other regulations promulgated by the E n v iro n m e n ta l Protection Agency and the State Water Resources Control Board. CWA 301(a) p ro h ib its discharges of pollutants or activities not authorized by, or in violation of an effluent sta n d a rd or limitation o r an o rd e r issued by the Environmental Protection Agency or a State with re s p e c t to such a standard or limitation including a NPDES permit issued pursuant to CWA 4 0 2 , 33 U.S.C. 1342. The two Facilities identified in Paragraph 4 of this First Amended C o m p la in t have been owned, operated, leased or m a n a g ed by CHEVRON, and are point sources u n d e r the CWA. 9 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34. T h e affected waterways described in th e CWA Notice are navigable waters of the United S ta te s within the meaning of CWA 502(7), 33 U.S.C. 1362(7). 35. T h e Administrator of the Environmental Protection Agency has authorized the Regional W a te r Quality Control Board to issue NPDES permits, subject to specific conditions and re q u ire m e n ts , pursuant to CWA 402, 33 U.S.C. 1342. 36. R IV E R WATCH is in f o rm e d and believes a n d on such information and belief alleges that C H E V R O N has no NPDES permit for discharging hydrocarbon contamination from its current a n d /o r f o rm e r U S T s a t th e tw o F a c ilitie s id e n tif ie d in P a ra g ra p h 4 , in to w a te r s of the United S ta te s. All u n a u th o riz e d point source discharges to waters of the United States are illegal. Each o f the two Facilities is a point source. Discharges from such point sources via tributary g ro u n d w a ter s to waters of the United States without a NPDES Permit are illegal. B. 37. R e so u r c e Conservation and Recovery Act R C R A 7002(a)(1)(A), 4 2 U .S .C . 6 9 7 2 (a )(1 )(A ) permits an action against any person w h o violates a PERMIT, STANDARD or REGULATION pursuant to the RCRA. RIVER W A T C H is informed and b e lie v e s a n d o n such information and belief alleges that CHEVRON h a s stored, handled and disposed o f m a te ria ls c o n ta in in g p e tro le u m , petroleum constituents, and o th e r to x ic p o llu ta n ts , d e f in e d a s h a z ard o u s w a ste s u n d e r th e R C R A , in a m a n n e r w h i c h has a llo w e d these pollutants to be discharged to soil and groundwater beneath a n d adjacent to the F a c ilitie s in violation of regulations regarding the use and disposal of hazardous wastes. See R C R A 3004(d), 42 U.S.C. 6924(d). 38. R IV E R WATCH is in f o rm e d and believes a n d on such information and belief alleges that C H E V R O N has violated provisions of the RCRA governing the use and operation of USTs used f o r the storage of petroleum products. See RCRA subchapter IX, 42 U.S.C. 6991 et seq. Also, th a t CHEVRON has b e e n responsible for unauthorized petroleum hydrocarbon releases at the F a c ilitie s and has removed and/or abandoned USTs on the Facilities u s e d f o r the storage of p e tro le u m without implementing required and effective cleanup a n d abatement measures. At its Weed site, CHEVRON has o n g o in g retail petroleum delivery operations which further c o m p lic a te the remediation process at that location. 10 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39. R C R A 7002(a)(1)(B), 4 2 U .S .C . 6 9 7 2 (a )(1 )(B ) permits an action against any person w h o has contributed or who is contributing to the past or present handling of any s o l id or h a z ard o u s w a ste which may p re se n t a n imminent and substantial endangerment to health or the e n v iro n m e n t. RIVER WATCH i s informed and believes and on such information and belief a lle g e s that the petroleum constituents, and other pollutants, identified in the RCRA Notices, d is c h a rg e d at the Facilities in c o n c en tra tio n s significantly greater than allowable MCLs and/or W Q O s are hazardous wastes pursuant to RCRA 6903(5), 42 U.S.C. 6 9 7 2 (5). Also, that p o llu ta n ts from these substances have leached into soil a n d groundwater b e n e ath and adjacent to the Facilities, creating an imminent and substantial e n d a n g e rm e n t to health and the e n v iro n m e n t. 40. R IV E R WATCH is in f o rm e d and believes a n d on such information and belief alleges that C H E V R O N 's point source discharges from th e F a c ilities are not regulated by a NPDES permit in violation of the CWA's prohibition against discharge of pollutants from a point source w ith o u t a NPDES permit. The violations a re established in Regional Water Quality Control B o a rd files for the two facilities identified in P a ra g ra p h 4 h e re in a s w e ll as in studies conducted b y or for C H E V R O N in compliance with orders from the Regional Water Quality Control Board o r other regulatory agencies. The enumerated violations are detailed in t h e C W A Notice and d e s ig n a te the section of the CWA violated by the described activities. 41. R IV E R WATCH is informed a n d b e lie v e s a n d o n s u c h information and belief alleges that C H E V R O N 's discharges to soil a n d g ro u n d w a te r a s d e sc rib e d herein and in the RCRA Notices h a v e violated the RCRA's regulations regarding the storage and d i sp o s a l o f hazardous wastes. T h e violations are established in Regional Water Quality Control Board files for the Facilities a s well as in studies conducted b y CHEVRON in compliance with orders from the Regional W a te r Quality Control Board or other regulatory agencies. 42. R IV E R WATCH is informed a n d b e lie v e s a n d o n s u c h information and belief alleges that C H E V R O N 's discharges to soil a n d g ro u n d w a te r a s d e sc rib e d herein and in the RCRA Notices a re in violation of the RCRA's prohibition against creating a n im m in e n t and substantial e n d a n g erm e n t to h e a lth a n d the environment. The violations are established in Regional Water 11 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q u a lity C o n tro l B o a rd a n d /o r le a d regulatory a g e n cy f ile s f o r th e Facilities a s w e ll a s in studies c o n d u c te d by C H E V R O N in c o m p l ia n c e w ith o rd e rs f ro m th e R e g io n a l W a te r Q u a lity Control B o a rd or other regulatory agencies. The enumerated violations a r e d e ta ile d in the RCRA N o tic e s , incorporated herein by reference, and below. V I. A. C L A I M S FOR RELIEF FIRST CLAIM FOR RELIEF V io la tio n of the CWA 3 3 U.S.C. 1251 et seq., 33 U.S.C. 1342 (a) and (b), 33 U.S.C. 1311 D isc h a r g e of Pollutants from a Point Source Must be Regulated by a NPDES Permit R IV E R WATCH re a lle g e s a n d incorporates by reference the allegations of Paragraphs 1 through 4 2 above, including the CWA Notice, as though fully set forth herein. RIVER W A T C H is informed and believes and on such information and belief alleges as follows: 43. C H E V R O N has violated and continues to violate th e CWA as evidenced by the d is c h a rg e s of hydrocarbon pollutants f ro m a p o in t s o u rc e w ith o u t a N P D E S permit in violation o f CWA 301, 33 U.S.C. 1311. 44. T h e violations of CHEVRON are ongoing and will continue after the filing of this First A m e n d e d Complaint. R IV E R W A T C H a lle g e s h e re in a ll v io la tio n s w h ic h may have occurred o r will occur prior to trial, b u t for which data may not have been available or submitted or a p p a re n t f ro m th e f a ce o f th e re p o rts o r d a ta s u b m itte d b y C H E V R O N to th e R e g io n a l Water Q u a lity Control Board, or to RIVER WATCH p rio r to the filing of this First Amended C o m p l a in t . RIVER W A T C H w ill f ile a d d itio n a l a m e n d e d c o m p l a in t s, if n e c e s s a r y, to address C H E V R O N ' s State and Federal violations which may occur after the filing o f th i s First A m e n d e d Complaint. Each of CHEVRON's violations is a separate violation of the CWA. 45. R IV E R WATCH avers and believes and on such belief alleges that without the imposition o f appropriate civil penalties and the issuance of appropriate equitable relief, CHEVRON will c o n tin u e to v io la te the CWA a s well as State and Federal standards with respect to the discharges a n d releases enumerated h e re in . A ls o , th a t th e re lie f re q u e ste d in this First Amended Complaint w ill redress th e injury to R IV E R W A T C H a n d its m e m b e r s , prevent future injury, and protect 12 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 th e in ter e sts o f R IV E R W A T C H a n d its m e m b e rs which in ter e sts a re o r may be adversely a f f e c te d by C H E V R O N 's v io la tio n s o f the CWA, a s w e ll a s o th e r S ta te and Federal standards a s alleged herein. B. S E C O N D CLAIM FOR RELIEF V io la tio n of the RCRA 4 2 U.S.C. 6901 et seq., specifically 42 U.S.C. 6972(a)(1)(A) R IV E R WATCH realleges and incorporates by reference th e a lle g a tio n s of Paragraphs 1 through 45 above, including t h e RCRA Notices as though fully set forth herein. RIVER W A T C H is informed and believes and on such information and belief alleges as follows: 46. R C R A 7002(a)(1)(A), 4 2 U.S.C. 6972(a)(1)(A) permits an action against any person w h o violates a PERMIT, STANDARD or REGULATION pursuant to the RCRA. Civil penalties m a y be assessed against any person or entity in violation of this section, under the provisions of 4 2 U.S.C. 6928(a) and 6928(g). 47. C H E V R O N 's storage and d i s p o s al of toxic levels of petroleum and petroleum c o n s t i t u e n ts at the Facilities, defined as hazardous wastes under the RCRA, has caused the d is c h a rg e of hazardous wastes to s o il a n d g ro u n d w a te r in v io la tio n o f regulations regarding the u s e and disposal of hazardous wastes (see RCRA 3004 (d), 4 2 U .S .C . 6924(d)), and the use a n d operation of USTs (see RCRA 9002(a), 42 U.S.C. 6991(a).) 48. R IV E R WATCH avers and believes and on such belief alleges that without the imposition o f appropriate civil penalties and the issuance of appropriate equitable relief, CHEVRON will c o n t in u e to violate a PERMIT, STANDARD or REGULATION pursuant to the RCRA, s p e c if ic a lly RCRA 3004(d), 42 U.S.C. 6 9 2 4 (d ). S e e RCRA 9002(a), 42 U.S.C. 6991(a).) 49. C o n tin u in g acts or the failures to act by CHEVRON to a d d re ss these violations will irre p a ra b ly harm RIVER WATCH a n d its m e m b e r s. RIVER WATCH avers and believes and o n such belief a lle g e s th a t th e re lie f re q u e s te d in th is C o m p la in t will redress the injury to RIVER W A T C H and its members, p re v e n t f u tu re injury, and protect the interests of RIVER WATCH a n d its members which interests are or may be adversely affected b y C H E V R O N 's violations o f the RCRA, as well as other State and Federal standards as alleged herein. 13 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. T H I R D CLAIM FOR RELIEF V io la tio n of the RCRA 4 2 U.S.C. 6901 et seq., specifically 42 U.S.C. 6972(a)(1)(B) R IV E R WATCH incorporates the allegations set forth above in paragraphs 1 through 49 a n d the RCRA N o t ic e s a s t h o u g h fully set forth herein. RIVER WATCH is informed and b e l ie v e s , and on such information and belief alleges as follows; 50. R C R A 7002(a)(1)(B), 42 U.S.C. 6972(a)(1)(B) provides that any person may c o m m e n c e a civil action against any person or g o v e rn m e n ta l e n tity in c lu d in g a past or present g e n e ra to r, transporter, owner or operator of a treatment, s to ra g e or disposal facility who has c o n trib u te d to the past or present handling, storage, treatment, transportation, or disposal of any so lid or hazardous waste w h ich m a y p re se n t a n imminent and substantial endangerment to health o r to the environment. Civil penalties may be assessed against any person or entity in violation o f this section, under the provisions of 42 U .S .C . 6 9 2 8 ( a ) a n d ( g ) . The RCRA UST regulatory p ro g ra m is adopted and implemented in California under the provisions governing the U n d e rg ro u n d Storage of Hazardous Substances (California Health & Safety Code 25280 et s e q .) 51. C H E V R O N has owned and/or operated the Facilities at w h ic h it s to re s o r h a s stored, and t r a n s f e rs o r h a s transferred, g a s o l in e , d i e se l, f u e l o i l a n d m ix e d o i ls , a n d is n o w legally r e sp o n s ib l e for the remediation of the Facilities. 52. T h e Facilities co n tain U S T s w h i c h are either leaking o r i n the past have leaked (before b e in g removed or replaced), petroleum chemicals including b e n z en e , toluene, TPHg, e th ylb e n z en e , xylenes, a n d M T B E in to g ro u n d w a te r. Or, petroleum products have been washed o f f the Facilities into nearby surface waters and groundwaters. For purposes of the RCRA, p e tro le u m products and their c o n stitu e n ts : T P H g , b e n z en e , to lu e n e , ethylbenzene, xylenes, and M T B E , are both "solid wastes" and "hazardous wastes" within the meaning of the statute. 53. P e tro le u m products and constituent chemicals within these petroleum products such as b e n z en e and toluene (known carcinogens and/or reproductive toxins), are known to be hazardous 14 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to th e e n v iro n m e n t, a n d if re le a se d in to th e e n v iro n m e n t in s u f f ic ie n t q u a n tity pose an imminent a n d substantial risk to public health and to the environment. 54. T h e amounts of petroleum products a n d their constituents, TPHg, benzene, toluene, e th ylb e n z en e , xylenes, and/or MTBE, released by CHEVRON at th e F a c ilitie s are in sufficient q u a n tity to pose an imminent and substantial risk to both the environment and to human health. 55. C o n tin u in g acts or failure to a c t b y C H E V R O N to a d d re s s these violations of the RCRA w ill irreparably harm RIVER WATCH a n d i ts members, for which harm they have no plain, sp e e d y or adequate remedy a t law . RIVER WATCH avers that the relief requested in this C o m p la in t will redress the injury to RIVER WATCH and its members who are or may be a f f e c te d by the violations alleged herein. V II. P R A Y E R FOR RELIEF W H E R E F O R E , RIVER WATCH, respectfully requests this Court grant the following r e lie f : 56. D e c lar e CHEVRON to have violated and to be in violation of the CWA with respect to th e two Facilities identified in Paragraph 4 of this First Amended Complaint; 57. Is s u e an injunction ordering CHEVRON to immediately clean u p a n d a b a te the two F a c ilitie s identified in Paragraph 4 of this First Amended Complaint i n c o m p l ia n c e with the C W A and applicable State and Federal standards; 58. O rd e r CHEVRON to pay to th e U.S. Treasury civil penalties of $27,500.00 per violation/ p e r day for each of its violations of the CWA; 59. D e c la re CHEVRON to have violated and to b e in violation of the RCRA for discharging f ro m the Facilities p e tro le u m products and constituents which are known carcinogens and/or re p ro d u c tiv e toxins in sufficient quantities to pose a n im m in e n t a n d s u b s ta n tia l ris k to health and to the environment; 60. E n jo in CHEVRON from discharging petroleum products and petroleum constituents from th e Facilities, w h i c h p e t ro l e u m p r o d u c ts a n d c o n s titu e n ts p o s e an imminent and substantial risk to health and the environment; 15 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61. O rd e r CHEVRON to comply with all of the substantive and procedural requirements of th e RCRA with respect to the Facilities; 62. O rd e r CHEVRON to pay civil penalties of up to $37,500.00 per violation/per day to the U .S . Treasury, for each of the Facilities, pursuant to applicable provisions of the RCRA in c l u d in g 42 U .S .C . 6 9 2 8 ( a ) and 6928(g), and/or to pay for remediation projects to redress th e harm caused by CHEVRON's violations of RCRA as alleged herein. E a c h of the aboved e s c r ib e d v i o l atio n s of the RCRA subjects the violator to a civil penalties on a per day/per v i o l a tio n basis. Civil penalties may be assessed for violations occurring within f i v e (5) years p rio r to the initiation of a citizen enforcement action; 63. E n te r s u c h preliminary in ju n c tio n s , p e rm a n e n t in ju n c tio n s o r o th e r o rd e rs pursuant to the R C R A requiring CHEVRON to e n jo in a n d abate the nuisance resulting from the discharges and re le a se s of petroleum products a n d c o n stitu e n ts from the Facilities, and to enjoin the migration o f petroleum products and constituents into soil and groundwater at and surrounding the F a c ilitie s ; 64. Im p o s e injunctive re lie f requiring CHEVRON to immediately investigate, access and c a teg o riz e the extent of pollution and implement th e "best available technology" to remediate p o llu t io n at the Facilities; 65. Im p o se injunctive r e lief requiring CHEVRON to immediately commence complete re m e d ia tio n of the contamination a t a n d a d ja c en t to the Facilities once the contaminant plumes h a v e been adequately characterized; 66. A w ard costs and fees (including reasonable attorney, expert, witness, and consultant fees) to RIVER WATCH as authorized by both the CWA and the RCRA; and, 67. A w a rd such other relief as this Court may deem appropriate. D A T E D : July 14, 2010 /s/ J a c k Silver J a c k Silver A tto rn e y for Plaintiff N O R T H E R N CALIFORNIA RIVER WATCH 16 4 :0 9 -c v -0 0 6 6 9 CW F i r s t Amended Complaint EXHIBIT A EXHIBIT B Law Office of Jack Silver P.O. Box 5469 P h o n e 707-528-8175 lh m 2 8 8 4 3 @ s b c g lo b a l.n e t Santa Rosa, California 95402 F a x 707-528-8675 V ia Registered Mail - Return Receipt Requested A p ril 5, 2010 D a v id J. O'Reilly, CEO and President C h e v ro n Corporation 6 0 0 1 Bollinger Canyon Road S a n Ramon, CA 94583 G a ry P. Luquette, President C h e v ro n U.S.A., Inc. 6 0 0 1 Bollinger Canyon Road S a n Ramon, CA 94583 M r. Mark Hom M s . Anna Cheng 3 1 3 5 Gibbons Drive A la m e d a , CA 94501 A n g e lo Orciuoli, (Registered Agent) A O K , LLC 2 Brady Place M e n lo Park, CA 94025 R e: N o tic e of Violations a n d Intent to File Suit or Amend Suit under the Resource C o n se r v a t io n and Recovery Act D e a r Owners, Site Managers and Responsible Parties: T h e Federal Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. 6901 et se q ., requires that sixty (60) d a ys p r io r to the initiation of an action for violation of permit, Notice of Violations - Page 1 of 13 s ta n d a rd , regulation, condition, requirement, prohibition o r o r d e r effective under RCRA, a p riv a te party must give n o tic e o f th e v io la tio n to th e alleged violator, the Administrator of the U .S . E n v iro n m e n ta l P ro te c tio n A g e n c y a n d th e S ta te in w h ic h th e v io la tio n is a lle g e d to have o c c u rre d (42 U.S.C. 6972(b)(1)(A)). T h e R C R A a ls o requires that a private party must provide n in e ty (90) days prior notice to the alleged violator, the Administrator of the Environmental P r o te c t io n Agency and the State in w h i c h the violation is alleged to have occurred before in itia tin g an action for an imminent and substantial endangerment to human health or the e n v iro n m e n t. (42 U.S.C. 6972(b)(2)(A)). H o w e v e r, if Subtitle C, Subchapter III, violations are alleged such as in this Notice, a c tio n s can be brought without observing the 60/90 day notice waiting p e rio d s that are applicable to 42 U.S.C. 6972(a)(1)(A) and 6972(a)(1)(B) claims; also, when Subtitle C, Subchapter III claims are brought in c o n ju n c tio n w ith 6972(a)(1)(A) and 6972(a)(1)(B) claims, none of th e claims require a waiting period before a complaint under RCRA provisions may be filed. O n behalf of Northern California River Watch ("River Watch"), I am providing statutory n o t if i c a tio n to Chevron Corporation and Chevron U.S.A., Inc. of continuing and ongoing v io la t io n s of the RCRA, in conjunction with their continuing operations at three former Northern C a lif o rn ia underground storage tank ("UST") sites as identified in this Notice. R i v e r Watch is also providing notice of these same violations to the owners of the real p ro p e rty on which these sites are situated, known to R iv e r W a tc h a t th is time to be Mark Hom, A n n a Cheng and AOK, LLC. P u r s u a n t to th e R C R A , th e c u rre n t o w n e rs o f th e se s ite s may be in part legally responsible for ongoing contamination d u e to mere ownership of the real property o n which and under which the hazardous contamination has been found. R iv e r Watch hereby notifies Chevron Corporation, Chevron U.S.A. Inc., Mark Hom A n n a Cheng and AOK, LLC (collectively hereafter, "Polluters"), that at the e x p ira tio n of the a p p ro p ria te notice p e rio d s u n d e r the RCRA, River Watch intends to commence a civil action a g a in s t Polluters, or amend any pending actions against Chevron Corporation and Chevron U .S .A ., Inc. on the following grounds: 1. P o ll u te rs' use and storage of petroleum products at the sites identified in this N o t ic e has violated and continues to violate permits, standards, regulations, c o n d itio n s , requirements and/or prohibitions effective pursuant to the RCRA reg ard ing storage of petroleum in USTs. [42 U.S.C. 6972(a)(1)(A)]; P o llu te rs ' operations at th e s ite s id e n tif ie d in th is N o tic e h a v e c a u se d petroleum c o n ta m in a tio n o f s o il a n d g ro u n d w a te r w h ic h p re se n ts a n im m in e n t and s u b s ta n tia l endangerment to human health and the environment [42 U.S.C. 6 9 7 2 (a)(1)(B )]. P o llu ter s' past and current o p e ra tio n s at the site s identified in th is Notice violate th e provisions of RCRA subchapter III (Subtitle C) which governs the handling o f hazardous wastes. River Watch contends that Polluters have inadequately m a in ta in e d records of the manner in which their hazardous wastes have been Notice of Violations - Page 2 of 13 2. 3. tre a te d , stored and/or disposed of; that th e y h a v e inadequately monitored, reported a n d /o r c o m p lie d w ith e x is tin g re g u la tio n s c o n c ern in g th e ir h a z ard o u s w a ste s; that th e y h a v e inadequately provided storage facilities for their hazardous wastes; and, in th e p a st th a t they have not developed adequate contingency plans for effective a c ti o n to minimize damage from the unauthorized releases of hazardous c o n ta m in a n ts all of which have presented a substantial endangerment to human h e a lth and to the environment. S IT E S 1. 3 1 3 5 Gibbons Drive, Alameda, California T h i s former UST site is located at the corner o f Gibbons D r iv e and Fernside Boulevard in a residential section of Alameda. The initial unauthorized release was discovered in a p p ro x im a te ly July o f 1 9 8 6 when the dispenser islands and associated piping were removed, a lo n g with the USTs. Groundwater at the site is shallow, less than five feet bgs. F o llo w in g the removal of the station building and related equipment, a single family home w a s constructed on the site by June of 1989, c u rre n tly o w n e d by M a rk Hom and Anna Cheng. B y October of 1995, 10 monitoring wells had been installed. Several soil gas vapor surveys w e re conducted between July of 1987 and October of 2002. It is unclear whether the previous s u r v e ys have documented any risks to human health due to soil vapor gas. B e tw e e n 2001 and e a rly 2 0 0 2 , there w e re 5 mobile extraction efforts which intended to re d u c e th e f re e -p h a se h yd ro c a rb o n s found in a t lea st one location on site. The extraction efforts h a v e not succeeded in eliminating th e separate phase hydrocarbons ("SPH"), or in remediating th is property. Monitoring in late 2008 f o u n d SPH of 0.4 feet at well C-1. Monitoring in D e c em b e r of 2008 continued to d o c u m e n t S P H in w e ll C -1 , a d ja c en t to th e residential dwelling. O n t h e basis of reports available at this time, it appears very little remediation work has been c o n d u c te d in addition t o t h e 5 e x tra c tio n events and soil gas vapor surveys. According to the A la m e d a County Health Care S e r v i c e s A g e n c y, t h e r e h a s b e e n no on-going remediation work s in c e the extraction trench at the site was shut down. T h e m o st re c e n t available monitoring appears to be that of February of 2009, with data n o tin g TPHg levels as h ig h a s 5 9 ,0 0 0 u g /l, a n d b e n z e n e le v e ls a s h ig h as 3,100 ug/l (both at C1 ). A t the present time, the Alameda County Health Care Services Agency has called for re n e w e d soil vapor gas evaluation to insure that th e residents o f the single family h o m e are not e x p o se d to h a z a rd o u s fumes, a n d f o r remediation w o rk to deal with the SPH, beyond the monthly v is its to bail out the free-phase product from C-1. O n the basis of the current condition of this site, River Watch believes that RCRA and S ta te o f C a lif o rn ia re m e d ia tio n p ro v is io n s re q u ire , at a minimum, the following evaluative and re m e d ia tio n work: Notice of Violations - Page 3 of 13 E lim in a tio n of free product so that effective site remediation can begin; A current vapor entrapment survey which satisfies current standards as set by the A la m e d a County Health Care Services Agency for determination of threat to human h e a lt h ; A current s e n sitiv e receptor survey which determines the threat to hydrocarbon migration f ro m the site into the A i rp o r t Channel, a tidal canal that lies approximately 650 feet d o w n g ra d ie n t of the site; A current preferential pathway study which determines whether any a d ja c en t sewer lines o r storm drains may provide access to sensitive receptors around the site; C o m p lete site c h a ra c ter iza tio n to in c lu d e th e in sta llatio n o f a d d itio n a l monitoring wells to eliminate what the Alameda County Health C a r e Services Agency has identified as d a ta gaps in the current monitoring reports; P e r f o r m a n c e of the necessary analyses to determine the residual hydrocarbon mass as a m e a n s of gauging progress of contamination removal. 5 8 1 0 Nave Drive, Novato, California 2. T h is former service station site is located on the northwest corner of N a v e Drive (f o rm e rly Redwood Boulevard) at the intersection of Roblar D riv e a n d c lo s e to a H ig h w a y 101 o f f ramp. T h e property u n d e rlyin g th is s ite is te c h n ic a lly still owned by the California Dept. of T r a n s p o r ta t io n (CalTrans), but h a s been d e e d e d t o the City o f Novato, a l th o u g h t h e City appears to have not formally a c ce p te d th e d e e d ed la n d a s ye t. There is currently a bus shelter located on th is property. A n unauthorized petroleum hydrocarbon leak was first d e te c te d in approximately June o f 1983 nearly 27 years ago. All of the facilities, USTs, dispenser islands and associated p ip in g were removed by the following year. N o remediation h a s b e e n c o n d u c te d s in c e th e UST was removed in 1984. In 2006 the c o n su lta n t at that time proposed to inject oxygen to assist the bioremediation of the h yd ro c a rb o n s , b u t th e Regional W a te r Q u a lity C o n tro l B o a rd re q u ire d a Feasibility Study and C o rre c tiv e Action Plan prior to that work. It is apparent from the records on file that no F e a s ib ility Study and Corrective Action Plan has ever been submitted. G ro u n d w a ter a t the site remains significantly contaminated. Monitoring reports indicate t h e le v e l s o f contaminants u n d e r th e property h a v e r e m a in e d s ta b l e , f lu c t u a tin g o n ly due to s e a so n a l increases in groundwater flow. As of the l a st reported monitoring done in April of 2 0 0 9 , TPHg levels were a s h ig h a s 2 9 ,0 0 0 u g /l, a n d b e n z e n e lev e ls w e re a s h ig h a s 1 4 ,0 0 0 ug/l. In a sm u c h as these levels h a v e been shown to f lu c tu a te , it m a y b e reasonable to anticipate that th e levels may re v e rt to the 47,000 ug/l for TPHg and 17,000 ug/l for benzene as was found in Notice of Violations - Page 4 of 13 J u ly of 2008. The site consultant indicated that there has been n o n a t u ra l attenuation at a n yw h e re near a suitable rate. N e ith e r a Conceptual Site Model, n o r a F e a s ib le Source Control, as recommended by R e g i o n a l Water Quality Control Board has ever been submitted or performed. T h e Board b e l ie v e s proactive work to eliminate or reduce the source mass must be initiated, because g r o u n d w a te r concentrations are significant. River Watch agrees. O n the basis of the current condition of this site, River Watch believes that RCRA and S ta te of California remediation provisions require, at a m in im u m , th e f o llo w in g e v a lu a tiv e and re m e d ia tio n work: E lim in a tio n or reduction of the high levels o f h yd ro c a rb o n s b y means of some effective re m e d ia tio n strategy; A current sensitive receptor survey which determines the threat to h yd ro c a rb o n migration s ite northward into a surface water, th e A rro yo S a n J o s e , w h ic h is 600 feet downgradient o f the site; A current preferential pathway study which d e te rm in e s whether any adjacent sewer lines o r storm d ra in s m a y p ro v id e a c ce ss to s e n sitiv e re c ep to rs a ro u n d th is s ite . T h e r e are c u rre n tly only 6 m o n ito rin g w e lls; 2 in a downgradient direction. This leaves broad data g a p s in the monitoring w h ic h need to b e supplemented with the installation of additional w e lls ; C o m p lete site characterization to in c lu d e th e installation of additional monitoring wells a s noted above; A n aquifer profile to a n a lyz e th e e x te n t to w h ic h th e TPHg and benzene may be migrating in t o any underlying aquifer and affecting potential sources of drinking waters; P e r f o r m a n c e of the necessary analyses to determine the residual hydrocarbon mass as a m e a n s of gauging progress of contamination removal. 7 1 3 Silverado Trail, Napa, California 3. T h e real property underlying th is former Chevron/Texaco service station site is currently o w n e d b y A O K , L L C . F o u r USTs w e re o rig in a lly re m o v e d a n d re p la c e d in th e early 1960s. In December of 1990, 4 replacement tanks were removed and approximately 340 cubic yards of h yd ro c a rb o n impacted soil w e re e x c av a te d . A f te r s e rv ic e s ta tio n o p e ra tio n s at Bartley's Texaco c e a se d in 1990, the site became a truck rental yard. It is currently used as a automotive repair s h o p utilizing the original station building. S in c e 1990, there have been regular s u b s u rf a ce investigations, but very little in the way o f proactive remediation. Sensitive receptor surveys h a v e re su lte d in findings of private water s u p p ly wells within 500 feet of the site, but these have been deemed to be upgradient or crossNotice of Violations - Page 5 of 13 g ra d ie n t, and not threatened by the on-going groundwater contamination. The s ite c o n su lta n t has c o n c l u d e d that the site is generally defined, a l th o u g h t h i s r e l ia n c e s e e m s t o be based upon a very lim ite d number of monitoring wells. R e m e d ia tio n w o rk b e g a n o n ly in 2 0 0 6 w ith th e a p p lic a tio n o f a s u rf a c t a n t solution i n t e n d in g it m ig h t m itig a te th e re s id u a l, n o n -a q u e o u s -p h a s e liq u id h yd ro c a rb o n s . G i v e n the re m a in in g high lev e ls o f T P H d , is seems th is stra teg y h a s not proven effective. Extraction events d i d take place, removing ap p rox im a t e l y 22,500 gallons of hydrocarbon-impacted groundwater, b u t th e re is n o d a ta [i.e. n o re sid u a l m a ss c a lc u la tio n s ] to allow the regulators to determine how m u c h contaminated groundwater remains under and around the site. A t the present time, TPHd levels are as high as 76,000 u g /l, a n d T P H g le v e ls a s h ig h as 1 3 ,0 0 0 ug/l. Sulfate ( t h e s u r f a c ta n t used) is as high as 100,000 ug/l, on the basis of the last re c o rd e d monitoring event of S e p tem b e r 1, 2009. T h e site c o n su ltan t has indicated that levels o f contamination continue to remain within historical ranges. This seems to imply that continued re m e d ia tio n efforts are required before the site can be returned to State-mandated Maximum C o n ta m in a n t Levels. O n the basis of th e se f in d in g s, R iv e r W a tch b e liev e s th a t RCRA and State of California re m e d ia tio n provisions require, at a minimum, th e f o llo w in g evaluative and remediation work: E lim in a tio n or reduction of the high levels o f T P H d a n d TPHg hydrocarbons by means o f some effective remediation strategy; A current sensitive receptor survey which determines th e threat to hydrocarbon migration w e stw a rd into a surface water, the Napa R iv e r, a p p ro x im a te ly 7 0 0 f e et d o w n g ra d ie n t of th e site; A current preferential p a th w a y study which determines whether any adjacent sewer lines o r storm drains and other c o n d u its m a y p ro v id e access to sensitive receptors around the s ite . There are broad data gaps in the monitoring that should be supplemented with the in s ta lla tio n of additional downgradient wells; C o m p lete site c h a ra c ter iza tio n to in c lu d e th e in sta llatio n o f a d d itio n a l monitoring wells a s noted above; A n a q u if e r p ro f ile to a n a lyz e the extent to w h ic h the TPHg and benzene may be migrating in to any underlying aquifer and affecting potential sources o f d rin k in g water, as well as im p ac tin g the Napa River; P e r f o r m a n c e of the necessary analyses to determine the residual hydrocarbon mass as a m e a n s of gauging progress of contamination removal. Notice of Violations - Page 6 of 13 R E G U L A T O R Y STANDARDS T h e Resource Conservation and Recovery Act of 1976 is f e d e r a l la w o f th e U n i te d States, th e goals of which in c lu d e th e p ro te c tio n o f th e p u b lic a n d th e e n v iro n m e n t from harm caused b y waste storage and disposal, and to m a n d a te the proper remediation of soil and groundwater w h ic h has been contaminated by hazardous waste a n d hazardous products, including petroleum h yd ro c a rb o n s and gasoline formula constituents. The RCRA is a strict liability statute with a s ta tu t e of l im ita tio n s of five years. Pursuant to the RCRA, California has enacted laws and r e g u la tio n s that must be observed in conjunction with its provisions. C a lif o rn ia 's "Water Quality Objectives" exist to e n su re protection o f the beneficial uses o f water. Several beneficial uses of water exist, and the m o s t stringent water quality objectives f o r protection of all beneficial uses are selected as the protective water quality criteria. A lte rn a tiv e cleanup and abatement a c tio n s n e e d to be considered that evaluate the feasibility of, a t a minimum: (1) cleanup to background levels, ( 2 ) cleanup to levels attainable through a p p lica tio n of best practicable technology, and (3) cleanup to protective water quality criteria lev e ls. Existing and potential beneficial uses o f area groundwater include domestic, agricultural, in d u s tria l and municipal water supply. T h e Regional Water Quality Control Board has a d o p te d a Water Quality Control Plan or B a sin Plan which designates all surface a n d groundwater within the North Coast and San F r a n c is c o Bay regions as capable of supporting domestic water supply. The Board has adopted M a x im u m Contaminant Levels ("MCLs") and/or Water Quality Objectives ("WQOs") for p e tro le u m constituents in surface a n d g ro u n d w a te r w ith in th e re g io n of 50 ppb for TPHg, 1 ppb f o r benzene, 150 ppb for toluene and 5 ppb for MTBE. V IO L A T IO N S 1. P er m i ts , Standards and Regulations [42 U.S.C. 6972(a)(1)(A)] P o llu te rs ' use and storage of petroleum products a t th e sites id e n tif ie d in th is N o tic e has v io la te d and continues to violate permits, standards, regulations, conditions, requirements and/or p ro h ib itio n s effective pursuant to the RCRA regarding s to ra g e o f petroleum in USTs. [42 U.S.C. 6972(a)(1)(A)] D is p o s itio n , discharge and release of pollutants a t th e Sites c a n be traced a s far back as th e 1 9 8 0 's . R C R A is a s tric t lia b ility s ta tu te . T h e ra n g e o f d a te s c o v e r e d by this Notice P o llu te rs have caused o r permitted, cause or permit, or threaten to cause or permit, petroleum c o n ta m i n a n ts , petroleum constituents and other hazardous waste to be discharged or deposited w h e re it is, or probably will b e , d is c h a rg e d in to w a te rs of the State and now creates, or threatens to create, a condition of pollution or public nuisance. The discharge and threatened discharge o f such petroleum waste i s deleterious to the beneficial uses of water, and is creating and th re a te n s to c re a te a condition of pollution and nuisance which will continue unless the discharge a n d threatened discharge is permanently abated. Notice of Violations - Page 7 of 13 2. M is h a n d lin g of Hazardous Waste [42 U.S.C. 6924 et seq.] F ro m April 1, 2005 through April 1, 2 0 1 0 , P o llu ter s used a n d sto re d p e tro leu m products a t th e Sites in a manner which has allowed significant quantities of hazardous petroleum c o n stitu e n ts to be discharged to soil and groundwater beneath the Sites and beneath adjacent p ro p e rtie s. Contaminant levels o f T P H g , benzene, toluene, and MTBE in groundwater at the S ite s are significantly greater than the allowable MCLs and/or WQOs for said constituents. R iv e r Watch alleges that Polluters have, at a ll tim e s m a te ria l, e n g a g ed in the following a c tiv i tie s in violation of the RCRA's waste handling provisions: F a ile d to adequately maintain records of hazardous wastes as identified in this Notice w h i c h were treated, stored or otherwise disposed of on o r o f f s i te [42 U.S.C. 6924(a)(1)]; F a iled to satisfactorily monitor, in sp e c t, a n d re p o rt h a z a rd o u s wastes in accordance with R C R A provisions [42 U.S.C. 6924(a)(2)]; F a ile d to adequately treat, store or properly dispose of hazardous w a s t e found at the S ite s [ 4 2 U.S.C. 6924(a)(3)]; F a ile d to a d e q u ate ly lo c a te , d e sig n a n d c o n stru c t hazardous waste treatment, storage or d i s p o s a l facilities [42 U.S.C. 6924(a)(4)]; F a ile d to properly implement contingency p l a n s for effective action to minimize u n a n tic ip a te d damage from th e treatment, s to ra g e or d is p o s a l o f hazardous w a ste found a t the Sites [42 U.S.C. 6924(a)(5)]. I n f o r m a tio n currently available to R i v e r W a tc h indicates that the effects of Polluters' h a n d lin g , treatment, storage, transportation, and/or d is p o s a l o f h a z ard o u s w a ste in violation of R C R A 3004 has occurred every d a y during th e past five (5) years, or on numerous separate o c c as io n s , and, that these violations are continuing. 3. U n p e r m i tt e d Handling, Treatment, Storage, Transportation and/or Disposal of H a z a r d o u s /S o lid Waste [42 U.S.C. 6925 et. seq.] R iv e r Watch alleges that from April 1, 2005 to April 1, 2010 P o llu ter s have engaged in th e following activities in violation of the RCRA's waste handling provisions: Polluters' deposition a n d m a in te n a n ce of hazardous and/or solid waste as described h e r e in c a u s e s a n d h a s c a u s e d th e g e n e ra tio n a n d d is c h a rg e to th e e n v iro n m e n t of h a z ard o u s waste; P o llu te rs have installed and maintained a system of conveyances to dispose of hazardous a n d /o r solid waste generated and released from the Sites; Notice of Violations - Page 8 of 13 P o llu te rs do not possess p e r m its for the handling, storage, treatment, transportation, a n d /o r disposal of hazardous or solid waste at the Sites; P o llu te rs ' unpermitted handling, storage, treatment, transportation and/or disposal of h a z ard o u s and/or solid waste is a violation of RCRA 3005, 42 U.S.C. 6925. I n f o r m a tio n currently a v a i la b l e to River Watch indicates that the effects of Polluters' h a n d lin g , treatment, storage, transportation, a n d /o r d is p o s a l o f hazardous w a ste in violation of R C R A 3 0 0 5 h a s o c c u rre d every day during the past five (5) years, or on numerous separate o c c as io n s , and that these violations are continuing. 4. P r o h ib itio n Against Open Dumping [42 U.S.C. 6945 et. seq.] R iv e r Watch alleges th a t from April 1, 2005 to April 1, 2010 Polluters have engaged in th e following activities in violation of the RCRA's waste handling provisions: P o llu te rs h a v e engaged in o p e n dumping b y th e ir discharge of hazardous waste to open g ro u n d where it will and has c o n ta m i n a te d the soils, groundwater and surface waters as d e sc rib e d herein; T h e Sites d o n o t q u a lif y a s la n d f ills u n d e r 4 2 U .S .C . 6 9 4 4 , a n d d o n o t q u a li f y as f a c ilitie s for the disposal of hazardous and/or solid waste. P o llu ter s have n o R C R A -a u th o riz e d permit for the disposal, storage or treatment of solid o r hazardous waste of the type currently and historically discharged at the Sites. I n f o r m a t i o n c u r re n t ly available to River Watch indicates that the effects of Polluters' o p e n dumping in violation of RCRA 4005 has occurred every day during the p a s t f i v e (5) ye a rs , or on numerous separate occasions, and that these violations are continuing. 5. U S T Regulations [42 U.S.C. 6991 et. seq.]

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