Amicus Curiae Brief — United States v. Atlantic Research Corp.

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APROS

In The |

Supreme Court of the Anited States

UNITED STATES OF AMERICA,

Petitioner.

ATLANTIC RESEARCH CORPORATION

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

BRIEF OF JAMES KOTROUS AS AMICUS

CURIAE SUPPORTING RESPONDENT

JACQUELINE L. MCDONALD

Counsel of Record

MICHAEL K. VERGARA

SOMACH, SIMMONS & DUNN

A PROFESSION AL CORPORATION

815 Sixth Street, Third Floor

Sacramento, CA 95814

Telephone No. (916) 446-7979

Facsimile No. (916) 446-8199

tem WEE LAW BRIER URIN TENG, Ob sen Sted

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TABLE OF CONTENTS

Page

I. STATEMENT OF INTEREST..................:ccccceees 1

i EE eiiicileicccietncisninniineisivininiiaininnbinpincntanns 5

A. Public Policy Demands That Owners Of

Contaminated Sites Have The Right To

Recover Cleanup Costs Under Section 107

Against “Any Other Person”..................00000 5

B. Kotrous Respectfully Urges This Court To

Issue A Decision That Dispels Certain

Myths That Continue To Be Raised To

Prevent Property Owners From Pursuing

Contribution In The Absence Of Govern- |

TE TE sesisccnstsntstniiitinmnndnnion 9

1. Private Owners of Contaminated Sites

Have a Right to Pursue Contribution

From Those Parties Responsible For

INN: sccersecciidciescnicinniatencisnnniin 10

2. Upholding an Implied Right to Contri-

bution Under Section 107 Does Not

Constitute Judicial Legisla ion or In-

spire Unendless Litigation. ................... 10

3. Federal Policy Does Not Support the

Suggestion That All Private Cleanups

Are Inherently Irresponsible and Un-

IN seneresesnscnnsnnnssncsinainenmdenenatinnnss 12

ee SIE ccevecersrscnninnncccssceniocsnnemnennteneimeenes 13

i

TABLE OF AUTHORITIES

Page

CASES

Atlantic Research Corp. v. United States, 459 F.3d

I passim

Cooper Industries, Inc. v. Aviall Serv., Inc., 543 U.S.

Se I iediiandinicetdehieilintesiclaeariaatitaadeiaiciabiincnleiaidialeteitaisrealiataasl 3, 4,5

Dico, Inc. v. Diamond, 35 F.3d 348 (8th Cir. 1994)............. 6

Key Tronic Corp. v. United States, 511 U.S. 809

TIDE oe RE, aCe ne eee oe 1, 6, 7, 11

Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454

I aaa ala 11

Pinal Creek Group v. Newmont Mining Corp., 118

TU I italia lalallala 6, 11

Syms v. Olin Corp., 408 F.3d 107 (2nd Cir. 2005) .....6, 7, 11

United States v. Alcan Aluminum Corp., 964 F.2d

I alae lee tala 11

Western Properties Serv. Corp. v. Shell Oil Co., 358

UN ial satnleeaiaeiaeiianaueedl 7

STATUTES

42 U.S.C. §§ 9601 et seq.,

(Comprehensive Environmental Response,

Compensation, and Liability Act)

UII isin sense niccnmniencthbsatinbiinisiiaemmnenaciineiundoeiel 6, 8, 10, 11

I Bile et iccncinenssttnncemannsintscsneeeiasianeianignemeianie passim

Se I iii icccciieteteacisedinnedenineidamimnsanseiiaiibeaidl 2, 6, 10

I a ea 12

eT is ciaeeeaennaemedndmaaneinilanasaias 12

section 107(e)(2) ...........ceeeeeee eenseeesesssevecesocessseseossecoessoues 10

I TTT ini iccteraciaediiaslanianieidats elaeaattadidiaatbaasdabdantindiasaiiuanal 2,5

a eeldieeeaiaiedieieaiall 10

ill

TABLE OF AUTHORITIES — Continued

Page

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TNT ae eae eee nee Re RENT T ETS 10

I eiettnaibidiiiiti 12

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I a ceedilinineeaibiniindi 12

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LEGISLATION

Superfund Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, 100 Stat. 1613, sections

Se I IE prccscnicmseieictineniarnesitavnienentnecinnnnimeiains passim

Small Business Liability Relief and Brownfields

Revitalization Act, Pub. L. No. 107-118, 115 Stat.

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I. STATEMENT OF INTEREST

Amicus Curiae James Kotrous, individually and doing

business as The Mattress Factory, (Kotrous)' urges this

Court to uphold the United States Eighth Circuit Court of

Appeals decision, Atlantic Research Corp. v. United States,

459 F.3d 827 (8th Cir. 2006) (Atlantic Research), in accor-

dance with this Court’s opinion in Key Tronic Corp. v.

United States, 511 U.S. 809 (1994) (Key Tronic), that

potentially responsible parties are entitled to recover

response costs from other potentially responsible parties,

in the absence of a Comprehensive Environmental Re-

sponse, Compensation, and Liability Act, 42 U.S.C. § 9601

et seg., (CERCLA) enforcernent action or government

settlement, through an implied right of contribution for

the fair share of recovery costs under section 107 of CER-

CLA. Kotrous is a plaintiff in a CERCLA contribution case

now pending interlocutory challenge, under seemingly

identical allegations to those at issue in this Court, in the

United States Ninth Circuit Court of Appeals, James

Kotrous v. Goss-Jewett Company of Northern California,

Inc., No. 06-15162, consolidated with the already consoli-

dated cases in Goodrich Corporation v. County of San

Bernadino, Nos. 05-56694 and 05-56749 (hereafter re-

ferred to as “Kotrous v. Goss-Jewett”), see Exhibit A hereto.

As a California property owner enduring necessary

litigation in the United States Eastern District Court of

' This brief is submitted with the consent of the parties. Amicus

Curiae James Kotrous affirms that this brief was drafted exclusively by

his counsel of record and that Amicus Curiae James Kotrous provided

all monetary contributions for the preparation of this brief.

2

California since 2002, Kotrous, an individual who unknow-

ingly purchased contaminated property in October 1995,

seeks to inform this Court’s decision in this important

case. The litigation commenced by Kotrous involves

certain property located at 4301 Power Inn Road in Sac-

ramento, California. From 1970 through 1996, the primary

defendant in the litigation, Goss-Jewett Company of

Northern California (Goss-Jewett), leased the subject

property to engage in purchasing, storing onsite, and

distributing chemicals (containing perchloreoethylene

(PCE)) used in dry cleaning establishments. Goss-Jewett

failed to cooperate with the state agency with jurisdiction

over contaminated sites in Sacramento, the Central Valley

Regional Water Quality Control Board (State). The State

issued a cleanup and abatement order against Goss-Jewett

and one of its officers responsible for the activities result-

ing in contamination, but the defendants did not comply.

In searching for responsible parties to come up with

funding for the cleanup, the State then issued a new

cleanup and abatement order, which also imposed direct

cleanup responsibility on Kotrous and a former owner of

the contaminated site at issue in the pending action before

the Ninth Circuit. Soon after receiving the cleanup and

abatement order, Kotrous initiated a CERCLA action to

recover costs of the cleanup by way of contribution against

other “potentially responsible parties” (PRPs), as author-

ized by CERCLA section 107(a) and by CERCLA section

113(f). See Exhibit B hereto. As similarly noted by the

Eighth Circuit in Atlantic Research, Kotrous is by defini-

tion a “potentially responsible party” due to his mere

ownership of the property; the application of this term and

the ownership of property, however, does not alone signify

that Kotrous is actually responsible for any activity that

3

resulted in the contamination of the property. See Atlantic

Research, 459 U.S. at 831; see also 42 U.S.C. § 9607(a)(1)

(defining any “owner and operator” of a contaminated

property as liable for cleanup and response costs under

CERCLA).

Since the issuance of this Court’s decision in Cooper

Industries, Inc. v. Aviall Serv., Inc., 543 U.S. 157 (2004)

(Cooper), the fate of numerous contaminated sites

throughout the country (not the least of which is the

property owned by Kotrous that is at issue in the pending

Ninth Circuit challenges) has been highly uncertain.

Appellants in Kotrous v. Goss-Jewett asserted Cooper to

challenge the District Court’s jurisdiction over Kotrous’

section 107 and section 113 contribution actions. The

District Court upheld Kotrous’ standing to raise the

CERCLA causes of action by ruling only on the section 107

contribution issue and asserting that CERCLA section 107

maintains an implied right to contribution for PRPs.

Appellants successfully sought interlocutory review of the

District Court’s decision by the Ninth Circuit. Pending

resolution at the Ninth Circuit, the District Court proceed-

ings are stayed. Meanwhile, the contamination remains

and efforts continue to try to remedy the contamination of

Kotrous’ property caused by others prior to Kotrous’

ownership of the property. See Exhibit A hereto.

This Court’s decision in the present case will inevita-

bly direct the Ninth Circuit’s decision in Kotrous v. Goss-

Jewett. Appellants in Kotrous v. Goss-Jewett seek the

Ninth Circuit to wipe out, in one quick sweep, five years of

litigation initiated by Kotrous to clean up property con-

taminated from activities taking place prior to Kotrous’

4

ownership of the property.’ Completely denying PRPs, like

Kotrous, a right to contribution would inevitably result in

similar denials to landowners throughout the country and

would devastate progress of voluntary contaminated site

cleanups.

Over all things, Kotrous respectfully requests this

Court to bring certainty to the currently unsettled state of

CERCLA contribution across the nation. Individuals whom

currently own properties contaminated, by actions of

others, and for one reason or another were nut able to or

did not avail themselves of “innocent landowner” exemp-

tions when they purchased the property, as is the case

with Kotrous, deserve a standard set of game rules. The

game rules that parties applied for years were haltingly

thrown out in 2004 with this Court’s decision in Cooper,

which unsettled many contribution actions already

brought by PRPs under section 113 of the Superfund

Amendments and Reauthorization Act of 1986, Pub. L. No.

99-499, 100 Stat. 1613 (Superfund Amendments). Since

that time, extensive time and resources have been devoted

to post-Cooper litigation throughout the country as parties

and lower courts grapple with the law and equities of

completely closing the door to contribution actions of those

- PRPs who are not subject to a government enforcement

action or settlement.

This Court’s ruling herein will directly impact the

ability and willingness of private parties to initiate a

* The Eastern District Court of California did not rule on the issue

of whether Kotrous qualifies to bring a claim for contribution under

section 113. Thus, Kotrous has reserved and continues to reserve all

rights to subsequently argue in the Eastern District Court of Appeal

and/or the Ninth Circuit Court of Appeals that he has met the standing

requirements under section 113.

5

CERCLA action to recover cleanup costs from other PRPs.

Moreover, resolution of the issues raised in this case,

together with the Cooper ruling, will greatly influence

whether private parties will continue to voluntarily

remediate contaminated sites. Kotrous respectfully urges

this Court to unambiguously uphold the right of PRPs to

commence CERCLA litigation for contribution of recovery

costs from other PRPs, pursuant to CERCLA section 107,

so that individuals like Kotrous across the nation can

move forward in cleaning up contaminated sites before

commencement of government enforcement proceedings.

Il, ARGUMENT

A. Public Policy Demands That Owners Of Con-

taminated Sites Have The Right To Recover

Cleanup Costs Under Section 107 Against

“Any Other Person”

Stepping away from the semantics of CERCLA section

107 and Superfund amendments section 113(f), Kotrous

respectfully urges this Court to carefully consider the

major policy ramifications of prohibiting a landowner, such

as Kotrous, from proactively initiating CERCLA litigation

against parties that were involved in activities resulting in

contamination at the site to facilitate remediation of their

property. Kotrous purchased property subject to contami-

nation and subsequently sought to undergo the expense

and burden of litigation to ensure that all responsible

actors would contribute to the cost of cleanup. In Kotrous’

case, the State pursued an administrative enforcement

action against Kotrous because it could not compel the

responsible parties, whom are no longer affiliated with the

contaminated site, to comply with its administrative

enforcement attempts. The State chose not to take on the

6

expense and staff drain of litigation and rather pursued

administrative efforts with the current owners and lessees

on the property. Kotrous filed suit in an attempt to force

the responsible parties to contribute to the cleanup costs.

In similar cases, landowners initiate voluntary cleanups of

contaminated sites, without the nudge of an enforcement

action, and initiate CERCLA litigation to compel contribu-

tion from the liable parties. See Exhibit B.

As found by the Eighth Circuit, in either situation,

CERCLA’s purposes would be frustrated by a complete

denial of federal jurisdiction over claims brought under

the comprehensive federal law directed at cleaning up

contaminated sites. See Atlantic Research, 459 F.3d at 830-

831; see also Dico, Inc. v. Diamond, 35 F.3d 348, 349 (8th

Cir. 1994) (CERCLA was enacted to remedy the serious

environmental health risks posed by industrial pollution

by “ensuring the prompt cleanup of hazardous waste sites

and imposing. the costs of such cleanups on responsible

parties”). For this reason, the courts appropriately recog-

nize an implied right of any party, including the owners

and operators of a contaminated site, to seek contribution

from other responsible parties under section 107(a). Syms

v. Olin Corp., 408 F.3d at 107 n.8 (2nd Cir. 2005) (Syms);

Key Tronic, 511 U.S. at 816-817; see also Pinal Creek

Group v. Newmont Mining Corp, 118 F.3d 1298 (9th Cir.

1997) (Pinal Creek).

Those on the other side of this issue contend that

contribution actions of PRPs brought under section 107

prior to initiation of civil action by the government must

be denied. However, as stated by the Ninth Circuit:

{[Rlequiring a [section] 106 or [section] 107(a) ac-

tion to be brought before a contribution action is

allowed, would diminish the incentive of a PRP

7

to remove hazardous substances voluntarily and

reach a settlement with government agencies as

to liability. That contribution may be sought after

settlements as well as judgments is a well-

established legal tradition. Suppose, for example,

that after a car accident, the driver of each car is

liable to an injured person. If one driver settles

with the victim, he then can sue the other driver

for contribution. It does not matter, for settle-

ments or judgments, whether contribution is

sought in the original or in a separate action.

Western Properties Serv. Corp. v. Shell Oil Co., 358 F.3d

678, 684 (9th Cir. 2004).

Thus, the comprehensive framework of CERCLA and

the Superfund amendments simply cannot be read to omit

any.right of contribution for PRPs to initiate cleanup of

contaminated sites. See Syms, 408 F.3d at 107, n.8. Such a

result negates all progress and discourages proactive

efforts to quickly initiate the cleanup (whether by volun-

tary efforts of private parties or state administrative

orders), and subsequently seek cost recovery from all

liable parties. See Syms, 408 F.3d 95. Denying PRPs the

right to seek contribution under section 107 discourages

“PRPs from voluntarily initiating cleanup, contrary to

CERCLA’s stated purpose of ‘inducfing] such persons

voluntarily to pursue appropriate environmental response

actions with respect to inactive hazardous waste sites.’” Jd.

at 106 (citing H.R. Rep. No. 96-1016(I), at 17 (1980)). The

absence of any avenue for PRPs to recover costs of cleanup

before the government initiates a CERCLA action for a

given contaminated site undermines CERCLA’s primary

goal of “encourag{ing] private parties to assume the

financial responsibility of cleanup by allowing them to

seek recovery from others.” Key Tronic, 511 U.S. at 819.

8

Petitioner requests this Court to require owners of

contaminated sites to sit back and wait for the government

to pursue cleanup of the site. In so requesting, Petitioner

actually seeks to dissolve any ability of a given landowner

to “settle” with other responsible parties who have yet to

be held accountable for the contamination by state or

federal government agencies. Until someone brings a

section 106 or 107 action to cleanup the contaminated site,

there is simply no incentive for uncooperative responsible

parties no longer connected to the site to come out from

their respective hiding places and jump into a settlement

agreement. The remote chance that the government will

not pursue such an action in the foreseeable future is a

sufficient disincentive to voluntarily entering a settlement.

Where the State and landowner combined do not have

sufficient funds to effectively clean up the site, the success

of the cleanup hinges on litigation to pursue contribution

from the uncooperative responsible parties. As evinced in

the Kotrous situation, even an administrative enforcement

action against past owners or operators of the site is

insufficient to compel settlement or even compliance. See

Exhibit B hereto. Meanwhile, the contamination at sites

across the country, as well as those parties responsible for

such contamination, continue to migrate.

CERCLA policy requires that owners of contaminated

sites, such as Kotrous, be allowed to seek contribution

from other PRPs for cleanup costs. In initiating section

9

107 civil actions, the owners facilitate the statutory goal of

casting a broad net of liability. This Court’s decision should

facilitate CERCLA’s goal of holding all responsible parties

accountable for remediation of contaminated sites.

B. Kotrous Respectfully Urges This Court To

Issue A Decision That Dispels Certain

Myths That Continue To Be Raised To Pre-

vent Property Owners From Pursuing Con-

tribution In The Absence Of Government

Enforcement.

Kotrous requests that this Court issue a ruling that

dispels the following myths that plague the section 107

contribution discussion:

1. All owners or operators of contaminated

sites are per se guilty of contamination

and/or are bad actors, unless they took ac-

tion to ensure “innocent landowner” status

prior to purchasing contaminated property.

2. Allowing PRPs an implied right to section

107 contribution constitutes judicial legisla-

tion and opens wide the door for unendless

joint and several cost recovery litigation.

3. Private cleanup actions are inherently irre-

sponsible and inferior to those actions “su- ~

pervised” by the federal government.

Kotrous suggests that each of these myths are false

and without any merit, as set forth herein and in the

Atlantic Research decision.

10

1. Private Owners of Contaminated Sites

Have a Right to Pursue Contribution

From Those Parties Responsible For the

Contamination.

All owners or operators of contaminated sites are not

necessarily bad actors. Congress apparently recognized

this fact as CERCLA construes liberally the right of

owners or operators of contaminated sites to sue for

recovery of cleanup costs for their contaminated property.

See, e.g., 42 U.S.C. § 9607(e)(2) (“Nothing in this title [42

U.S.C. §§ 9601 et seq.) ... shall bar a cause of action that

an owner or operator or any other person subject to liabil-

ity under this section, or a guarantor, has or would have,

by reason of subrogation or otherwise against any per-

son”), emphasis added. If Congress intended to limit the

rights of “owners and operators” to sue other PRPs

through the enactment of the Superfund amendments,

then Congress would have amended section 107(e)(2) to

reflect the limitations imposed on owners and operators by

the Superfund amendments. Rather than expressing such

a limitation, Congress instead created an additional

savings clause within the text of section 113(f){1). 42

U.S.C. § 9613(f)(1) (this subsection does not “diminish the

right of any person to bring an action for contribution in

the absence of a civil action under CERCLA section 106 or

section 107”).

2. Upholding an Implied Right to Contribu-

tion Under Section 107 Does Not Consti-

tute Judicial Legislation or Inspire

Unendless Litigation.

The legislative motives behind CERCLA confirm the

validity of the Eighth Circuit’s recognition of a contribu-

tion action for PRPs under section 107(a). CERCLA’s

11

primary goals are to “force polluters to pay for costs

associated with remedying their pollution,” (United States

v. Alean Aluminum Corp., 964 F.2d 252, 258 (3d Cir. 1992)),

and “to ensure the prompt and effective cleanup of waste

disposal sites, and to assure that parties responsible for

hazardous substances bore the cost of remedying the

conditions they created.” Mardan Corp. v. C.G.C. Music,

Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986). To facilitate

these goals, “CERCLA is designed to encourage private

parties to assume the financial responsibility of cleanup by

allowing them to seek recovery from others.” Key Tronic at

819 n.13.

Disallowing PRPs to enforce the liability of all respon-

sible parties discourages “PRPs from voluntarily initiating

a clean-up, contrary to CERCLA’s stated purpose of

‘induc[ing] such persons voluntarily to pursue appropriate

environmental response actions with respect to inactive

hazardous waste sites.’” Syms, 408 F.3d at 106, quoting

H.R. Rep. No. 96-1016(I), at 17 (1980). Prohibiting PRPs

from suing for contribution under section 106 or 107

“create[s] a perverse incentive for PRPs to wait until they

are sued before incurring response costs.” Syms, 408 F.3d

at 106; see also Pinal Creek, 118 F.3d at 1301. Section 113

does not “govern” this right to contribution, but rather

“creates a mechanism for apportioning” proportionate

liability among PRPs during or following a section 106 or

section 107 action or a government settlement.

Moreover, authorizing PRPs to seek contribution for

cost recovery under section 107 is wholly distinguishable

from allowing PRPs to seek joint and several liability from

others. Pinal Creek, 118 F.3d at 1303, 1306. Nothing

within the text of section 107 requires this Court to

determine that section 107 only authorizes joint and

12

several liability. The text does not require such a ruling,

nor does equity allow such an interpretation with respect

to PRPs pursuing civil actions for contribution among

other PRPs. Jd. Section 107(a)(4)(A) allows governmental

entities to recover “all costs” whereas section 107(a)(4)(B)

allows private parties to recover any other necessary costs.

This distinction allows this Court to hold that governmen-

tal entities may bring an action to hold PRPs liable for all

of its cleanup costs, jointly and severally. Private parties,

however, may only bring a civil action for any necessary

costs, which equity limits to contribution against other

PRPs for their fair share of responsibility.

3. Federal Policy Does Not Support the

Suggestion That All Private Cleanups

Are Inherently Irresponsible and Unsu-

pervised.

Petitioner contends that this Court should deny

private parties the right to initiate CERCLA action be-

cause government “supervised” cleanups are inherently

superior. Appellants rely on no evidence in the record

before this Court to suggest that Congress does not value

private cleanup activities. Rather, as noted by Petitioner,

Congress passed the Small Business Liability Relief and

Brownfields Revitalization Act, Pub. L. No. 107-118, 115

Stat. 2356 (Brownfields Act) in 2002. The Brownfields Act

encourages private cleanup and redevelopment of con-

taminated property and authorizes public grants to

support private cleanups. See, e.g., 42 U.S.C. §§ 9604(k),

9607(0)-(r), 9628(a). In fact, the Brownfields Act limits the

ability of the federal government to take enforcement

action when “a person is conducting or has completed a

response action... .” 42 U.S.C. § 9621(b)(1)(A)(ii). Though

13

the Brownfields Act is not now at issue before this Court,

these provisions are indicative of Congress’ support for

private cleanup of contaminated sites.

Ti. CONCLUSION

Kotrous does not advocate for judicial legislation or

any expansion of current litigation under CERCLA.

Kotrous does, however, request that this Court adhere to

the express Congressional goals of CERCLA in upholding

the right of owners of contaminated sites to hold responsi-

ble parties accountable for the costs of prompt and com-

plete cleanup of their property. Kotrous respectfully urges

this Court to seriously consider the widespread implica-

tions of the ultimate decision in this case. For the forego-

ing reasons, Kotrous asks that this Court uphold the

Eighth Circuit’s proper interpretation of CERCLA in

Atlantic Research.

Respectfully submitted,

JACQUELINE L. MCDONALD

Counsel of Record

MICHAEL E. VERGARA

SOMACH, SIMMONS & DUNN

A PROFESSIONAL CORPORATION

813 Sixth Street, Third Floor

Sacramento, CA 95814

Telephone No. (916) 446-7979

Facsimile No. (916) 446-8199

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7

App. 1

EXHIBIT A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JAMES KOTROUS, individually

and doing business as THE

MATTRESS FACTORY,

Plaintiff, NO. CIV. S-02-1520 FCD JFM

Vv ORDER

GOSS-JEWETT COMPANY _ (Filed June 16, 2005)

OF NORTHERN CALIFORNIA,

INC., et al.,

Defendants.

This matter is before the court on motion to dismiss

filed by defendant Bayer Cropscience, Inc., (“Bayer”). The

motion seeks dismissal of the First, Third and Fourth

Claims in Plaintiff, James Kotrous’ (“Kotrous”) First

Amended Complaint for failure to state a claim on which

relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

In the event the court grants this motion, Bayer requests

that the court decline to exercise supplemental jurisdiction

over Kotrous’ remaining state law claims. For the reasons

stated herein, Bayer’s motion is DENIED.’

' Because oral argument will not be of material assistance, the

court orders the matter submitted on the briefs. E.D. Cal. Local Rule

78-230.

App. 2

BACKGROUND

The instant litigation concerns certain real property

located at 4301 Power Inn Road in Sacramento, California

(“the Site”). From approximately 1970 until 1996, the Site

was leased by Goss-Jewett Company of Northern Califor-

nia (“Goss-Jewett”), a defendant in this action. (First

Amended Complaint (“FAC”) J 8.) Goss-Jewett sold and

distributed chemicals used by dry cleaning establish-

ments, including the chemical perchloroethylene (“PCE”).

As part of its operations at the Site, Goss-Jewett

installed an above-ground storage tank, which was used to

store up to 1,000 gallons of PCE prior to its delivery by

truck to local dry cleaning businesses. Stauffer Chemical,

a predecessor in interest to Bayer, supplied PCE to Goss-

Jewett and delivered it by truck to the storage tank. (FAC

4{ 39.) During one or more of these deliveries, Stauffer

Chemical “suddenly and accidentally released PCE to the

soil and groundwater at the site ... [resulting in] con-

tamination of the environment.” (FAC ¥ 40.)

During the period that Goss-Jewett operated its dry

cleaning chemical supply business, ownership of the Site

»ransferred on two occasions. From approximately 1968 to

1976, Albert and Estelle Evans, Esther Volz, Robert and

Frances Carmany, and John and Mildred Spurlock co-

owned the Site.* In 1976, ownership transferred to defen-

dant Edward Anselmo (“Anselmo”), who sold the Site to

Kotrous in October of 1995.

* According to the FAC, Albert Evans, Estelle Evans, Esther Volz,

Robert Carmany, Frances Carmany, and John Spurlock are deceased.

Their respective estates have been named as defendants in this action.

App. 3

In August of 1996, after Kotrous acquired ownership of

the Site, hazardous substance contamination was discovered

in soil beneath the storage tank. (FAC { 41.) In 1998, Goss-

Jewett conducted a well survey, which identified 35 water

wells within 2,000 feet of the Site, including one private

well used for domestic water supply. (FAC { 42.) Goss-

Jewett then sampled the private well and found it con-

tained heightened levels of PCE. (/Jd.) The well was re-

moved from service. (/d.).

In or about February of 2000, the California Regional

Water Quality Control Board (““CRWQCB”) sent Goss-

Jewett a letter requesting a work plan for site assessment

and evaluation of groundwater monitoring wells on prop-

erty down-gradient from the Site. (FAC 4 43.) However,

Goss-Jewett did not comply and has performed no further

work at the Site since it sampled the domestic well in June

of 1998, despite repeated requests by the CRWQCB. (/d.)

In November of 2001, the CRWQCB issued Cleanup

and Abatement Order No. 5-01-714, which required Goss-

Jewett and one of its officers, defendant Steven Lamanet

(“Lamanet”), to investigate and remediate soil and

groundwater contamination at the Site. (FAC 799, 44.)

Kotrous was directed to conduct the work if Goss-Jewett

and Lamanet failed to do so. (FAC J 44.)

When Goss-Jewett and Lamanet failed to comply with

deadlines in the first Cleanup Order, the CRWQCB

rescinded that order and issued Cleanup and Abatement

Order No. R5-2002-0707, which imposed obligations for

site investigation and cleanup on Kotrous, Anselmo and

Goss-Jewett. (/d.)

Kotrous commenced this action on July 15, 2002,

asserting claims for contribution under CERCLA and the

App. 4

California Hazardous Substance Account Act; declaratory

relief under CERCLA, 42 U.S.C. § 9613(g)(2), the Declara-

tory Judgment Act, 28 U.S.C. § 2201, and state law; public

and private nuisance; trespass; equitable indemnity; and

injunctive relief. On April 26, 2005, Bayer filed the instant

motion for judgment on the pleadings pursuant to Fed. R.

Civ. P. 12(c).°

STANDARD

Rule 12(c) provides in relevant part that,

After the pleadings are closed but within such

time as not to delay the trial, any party may

move for judgment on the pleadings. If, on a mo-

tion for judgment on the pleadings, matters out-

side the pleadings are presented to and not

excluded by the court, the motion shall be

treated as one for summary judgment and dis-

posed of as provided in Rule 56 and all parties

shall be given reasonable opportunity to present

all material made pertinent to such a motion by

Rule 56.

A defense of failure to state a claim upon which relief

can be granted may be made by motion for judgment on

the pleadings. Rule 12 (h)(2). In considering a motion for

judgment on the pleadings presenting a defense of failure

to state a claim upon which relief can be granted, this

court should employ those standards normally applicable

to a motion to dismiss for failure to state a claim upon

which relief can be granted pursuant to Rule 12(b)(6). 5A

* All further references to the “Rules” are to the Federal Rules of

Civil Procedure unless otherwise noted.

App. 5

Wright & Miller, Federal Practice and Procedure, Civil

§ 1367 at 515-16 (2d ed. 1990).

On a motion to dismiss, the allegations of the com-

plaint must be accepted as true. Cruz v. Beto, 405 U.S.

319, 322 (1972). The court is bound to give the plaintiff the

benefit of every reasonable inference to be drawn from the

“well-pleaded” allegations of the complaint. Retail Clerks

Int'l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963).

Given that the complaint is construed favorably to the

pleader, the court may not dismiss the complaint for

failure to state a claim unless it appears beyond a doubt

that the plaintiff can prove no set of facts in support of the

claim which would entitle him or her to relief. Conley v.

Gibson, 355 U.S. 41, 45 (1957); N.L. Indus., Inc. v. Kaplan,

792 F.2d 896, 898 (9th Cir. 1986).

Nevertheless, it is inappropriate- to assume that

plaintiff “can prove facts which it has not alleged or that

the defendants have violated the ... laws in ways that

have not been alleged.” Associated Gen. Contractors of

Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,

526 (1983). Moreover, the court “need not assume the

truth of legal conclusions cast in the form of factual

allegations.” United States ex rel. Chunie v. Ringrose, 788

F.2d 638, 643 n.2 (9th Cir. 1986).

ANALYSIS

Bayer contends that Kotrous’ First Claim for contribu-

tion under CERCLA must be dismissed because Kotrous is

not entitled to assert a claim under either of the two

sections of CERCLA which authorize private actions for

damages, § 107(a) and § 113(f).

App. 6

Section 107(a) of CERCLA authorizes private entities

to recover costs incurred in cleaning up hazardous waste

disposal sites from responsible parties (“PRPs”) as defined

in the statute. 42 U.S.C. § 9607(a).

Section 113(f), which Congress added to CERCLA

through the 1986 Superfund Amendments aid Reauthori-

zation Act (“SARA”), provides PRPs with an express right

to contribution from other responsible parties. Under

§ 113(f), a responsible party may seek contribution, (1)

“during or following any civil action under § 106 of this

title or under § 107(a) of this title” or (2) where the PRP

“has resolved its liability to the United States or a State

for some or all of a response action ... in an administra-

tive or judicially approved settlement.” 42 U.S.C. § 9613(f).

In Cooper Indus., Inc. v. Aviall Serv., Inc., 125 S. Ct.

577, 583 (2004), the Supreme Court held that a PRP who

“voluntarily” incurs response costs (i.e., is not subject to a

civil action under § 106 or § 107 and who has not entered

into an administrative or judicially-approved settlement)

cannot assert a claim for contribution under § 113(f). The ©

court found that the clear language of the statute pre-

cluded any contrary result. Jd.

Bayer contends that, in light of the Supreme Court’s

decision in Aviall, Kotrous cannot maintain a CERCLA

contribution claim under § 113(f) because he was not

subject to a civil action under § 106 or § 107(a), nor did he

enter into a settlerment with the federal or state govern-

ment. The court need not decide whether the Kotrous

could meet § 113(f)’s standing requirements because the

Ninth Circuit recognized an implied right of contribution

in § 107. Pinal Creek, 118 F.3d 1298, 1301 (citing Key

Tronic Corp. v. United States, 511 U.S. 809, 814-815 (1994)

App. 7

and Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454,

1457 n.3 (1986)); Western Props. Serv. Corp. v. Shell Oil Co.,

358 F.3d 678, 685. The enactment of § 113 in 1986 did not

replace the implicit right of contribution in § 107. Western-

Props., 358 F.3d at 685. SARA contained a savings clause,

which provides that “[nlothing in this subsection shall

diminish the right of any person to bring an action for

contribution in the absence of a civil action under section

9606 of this title or section 9607 of this title.” 42 U.S.C.

§ 9613(f)(1) Thus, under controlling Ninth Circuit prece-

dent, a PRP may maintain a claim for contribution under

§ 107(a).

Bayer’s argument that Kotrous’ status as a PRP bars

him from seeking any relief under § 107(a) is based on a

mistaken interpretation of Ninth Circuit’s decision in

Pinal Creek. Pinal Creek held only that a PRP cannot

maintain an action under § 107(a) for joint and several

liability. Pinal Creek, 118 F.3d at 1302 (concluding that

the PRP plaintiff was “foreclosed from imposing joint and

several liability [on other PRPs)... .”) However, nothing in

Pinal Creek suggests that the court intended to abrogate

its prior decisions finding an implied right to contribution

in § 107(a). To the contrary, Pinal Creek clearly recognizes

that § 107 incorporates such a claim.’ Jd. at 1301 (finding

* The court in Aviall expressed considerable skepticism regarding

whether courts should find an implied right to contribution in § 107.

See Aviall, 125 S. Ct. at 58€ (noting that “(to the extent that Aviall

chooses to frame its § 107 claim on remand as an implied right of

contribution (as opposed to a right of cost recovery) we note that this

Court has visited the subject of implied rights of contribution before,”

and citing cases rejecting the creation of such rights). However, the

Aviall Court expressly did not decide this issue. Jd. (“ ... we decline to

decide whether Aviall has an implied right to contribution under

§ 107.”). Because Aviall does not overrule the cases from this circuit

(Continued on following page)

App. 8

that a claim for contribution is implicitly embedded in the

text of § 107); Western Props., 358 F.3d at 685.

Kotrous’ First Claim for contribution expressly in-

vokes § 107(a). (See FAC J] 47, 49, 56.) Thus, Kotrous has

stated a claim for contribution under CERCLA.

CONCLUSION

For the reasons stated herein, Rayer’s motion to

dismiss Kotrous’ First Claim for contribution under

CERCLA is DENIED. Bayer’s motion to dismiss Kotrous’

Second through Fourth Claims is predicated on this court

dismissing Kotrous’ CERCLA claim. Accordingly, Bayer’s

motion to dismiss is DENIED in its entirety.

IT IS SO ORDERED.

DATED: June 16, 2005

/s/ Frank C. Damrell Jr.

FRANK C. DAMRELL, JR.

UNITED STATES

DISTRICT JUDGE

that recognize an implied right to contribution in § 107, they remain

good Jaw and are binding on this court.

App. 9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

— — 00000 — —

JAMES KOTROUS, individually

and doing business as THE

MATTRESS FACTORY,

Plaintiff NO. CIV. S-02-1520 FCD JFM

ORDER

Vv

GOSS-JEWETT COMPANY

OF NORTHERN CALIFORNIA,

INC., et al.,

Defendants.

—— 00000 - —

This matter is before the court on motion for reconsid-

eration pursuant to Eastern District Local Rule 78-2130(k)

of this court’s June 26, 2005 Memorandum and Order, filed

by defendant Bayer Cropscience, Inc., (“Bayer”).

An order that resolves fewer than all of the claims

among all of the parties “is subject to revision at any time

before the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties.” Fed. R.

Civ. P. 54(b); 18B Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 4478 (2d Ed. 2005) (while

authorized, reconsideration of interlocutory orders disfa-

vored). Where reconsideration of a non-final order is

sought, the court has “inherent jurisdiction to modify,

alter or revoke it.” United States v. Martin, 226 F.3d 1042,

' Eastern District L.R. 78-230(k) provides the procedural rule for

filing a motion for reconsideration of “any motion . .. granted or denied

in whole or in part.”

App. 10

1048-49 (9th Cir. 2000), cert denied, 121 S. Ct. 1671 (2001).

To succeed in a motion to reconsider, a party must set

forth facts or law of a strongly convincing nature to induce

the Court to reverse its prior decision. See, e.g., Kern-

Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656,-

665 (E.D. Cal.1986), aff'd in_part and rev’d in part on other

grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486

U.S. 1015 (1988).

Generally, and absent highly unusual circumstances,

reconsideration is appropriate only where (1) the party

presents the court with newly discovered evidence, (2) the

court committed clear error or the initial decision was

manifestly unjust, (3) there is an intervening change in

controlling law.’ School Dist. No. 1J, Multnomah County,

Oregon v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

The court has reviewed Bayer’s memorandum in

support of its motion for reconsideration and concludes

that reconsideration is not warranted. Bayer interprets

Western Properties Service Corp. v. Shell Oil Corp., 358

F.3d 678 (9th Cir. 2004), differently than this court and

disagrees with the court’s conclusion that there is an

implied right of contribution in CERCLA section 107(a)

independent of section 113(f). However, this is not a valid

* While the standards applicable to motions for reconsideration of

final judgments or orders under Rules 5%e) (final judgments) and 60(b)

(final judgments and orders) technically do not delimit the court’s

inherent discretion to reconsider interlocutory orders, the court

nonetheless finds them to be helpful guides to the exercise its discre-

tion.

App. 11

ground for reconsideration as the court has committed no

clear error of law.’

IT IS SO ORDERED.

DATED: August 23, 2005.

/s/_ Frank C. Damrell Jr.

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

* Indeed, Bayer disagrees not just with this Court’s interpretation

of Western Properties, but that of a second judge in this district who

reached the same conclusion in a recent CERCLA case. See Adobe

Lumber v. Taecker, 2005 U.S. Dist. LEXIS 15374 (May 24, 2005).

App. 12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

— — 00000 — -

JAMES KOTROUS, individually

and doing business as THE

MATTRESS FACTORY,

Plaintiff NO. CIV. S-02-1520 FCD JFM

ORDER

v.

GOSS-JEWETT COMPANY

OF NORTHERN CALIFORNIA,

INC., et al.,

Defendants.

—— 00000 — —

This matter is before the court on defendant Bayer

Cropscience Inc.’s motion for certification for interlocutory

appeal pursuant to 28 U.S.C. § 1292(b). Defendant also

moves to stay discovery proceedings if this court grants its

motion for certification. Plaintiff James Kotrous and

crossclaimant Edward Anselmo oppose the motions. For

the reasons set forth below,’ defendant’s motions are

GRANTED.

' Because oral argument will not be of material assistance, the

court orders this matter submitted on the briefs. E.D. Cal. Local Rule

78-230(h).

App. 13

BACKGROUND’

Plaintiff commenced this action on July 15, 2002,

asserting claims for contribution under CERCLA; declara-

tory relief under CERCLA and the Declaratory Judgment

Act; and various claims under state law. (Pl’s Compl., filed

July 15, 2002). On April 26, 2005, defendant Bayer Crop-

science Inc. filed a motion for judgment on the pleadings

pursuant to Fed. R. Civ. P. 12(c). (Def.’s 12(c) Mot., filed

Apr. 26, 2005). Defendant argued that plaintiff’s contribu-

tion claims under CERCLA should be dismissed because

plaintiff did not and could not allege the standing re-

quirements of CERCLA § 113(f). Ud. at 2). Defendant

further argued that plaintiff’s remaining federal claims

should be dismissed because they are predicated upon the

contribution claim. (Jd.) If all federal claims were dis-

missed, defendant argued that the state claims should be

dismissed for lack of subject matter jurisdiction. (Jd.)

On June 16, 2005, the court denied defendant’s motion

to dismiss. (Order, filed June 16, 2005). The court based its

order on the Ninth Circuit’s decisions in Pinal Creek

Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir.

1997), and Western Properties Service Corp. v. Shell Oil

Co., 358 F.3d 678 (9th Cir. 2004). Ud. at 7-8). In Pinal

Creek, the Ninth Circuit concluded “that § 107 implicitly

incorporates a claim for contribution.” Pinal Creek Group,

118 F.3d at 1301. The Ninth Circuit further clarified that

“the enactment of § 113 ... did not replace the implicit

right to contribution . .. recognized in § 107(a).” W. Props.

* The facts of this case are set out in detail in the court’s order

denying defendant Bayer’s motion to dismiss. (Order, filed June 16,

2005). Therefore, the court only discusses those facts relevant to

defendant’s motion for certification.

App. 14

Serv. Corp., 358 F.3d at 685. Thus, the court held that a

responsible party (“PRP”) may maintain a claim for

contribution under § 107 without meeting § 113 standing

requirements. (Order, filed June 16, 2005, at 8). The court

did not reach the issue of whether plaintiff could meet

§ 113(f)’s standing requirements because it relied on Ninth

Circuit precedent recognizing an implied right of contribu-

tion in § 107. (/d. at 6-7).

On August 23, 2005, the court denied defendant’s

motion for reconsideration. (Order, filed Aug. 23, 2005). On

September 6, 2005, defendant filed the instant motion to

certify the court’s June 16, 2005 order, and the related

August 23, 2005 order for immediate interlocutory appeal.

Defendant also moves to stay discovery proceedings if the

court grants its motion for certification.

STANDARD

1. Interlocutory Appeal Under 28 U.S.C. § 1292(b)

The general rule is that an appellate court should not

review a district court ruling until after entry of a final

judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463,

474 (1978); In re Cement Antitrust Litig., 673 F.2d 1020,

1026 (9th Cir. 1982), aff’d sub nom. Arizona v. Ash Grove

Cement Co., 459 U.S. 1190 (1983); see 28 U.S.C. § 1291.

There is however, an exception to this general rule:

When a district judge, in making in a civil action

an order not otherwise appealable under this sec-

tion, shall be of the opinion that such order

involves a controlling question of law as to

which there is substantial ground for difference

of opinion and that an immediate appeal from

the order may materially advance the ultimate

App. 15

termination of the litigation, he shall so state in

writing in such order. The Court of Appeals ...

may thereupon ... permit an appeal... if appli-

cation is made to it within ten days. ...

28 U.S.C. § 1292(b). The party seeking certification of an

interlocutory appeal has the burden to show the presence

of those exceptional circumstances. Coopers & Lybrand,

437 U.S. at 474-75.

Section 1292 identifies three factors that must be

present in order for the court to certify an appeal. First,

the issue to be certified must involve a controlling issue of

law. An issue is “controlling” if “resolution of the issue on

appeal could materially affect the outcome of litigation in

the district court.” Jn re Cement Antitrust Litig., 673 F.2d

at 1026 (citing U.S. Rubber Co. v. Wright, 359 F.2d 784,

785 (9th Cir. 1966)). Second, there must be substantial

ground for difference of opinion on that issue. A party’s

strong disagreement with the court’s ruling is not suffi-

cient for there to be a “substantial ground for difference”;

the proponent of an appeal must make some greater

showing. Kern-Tulare Water Dist. v. Bakersfield, 634

F. Supp. 656, 667 (E.D. Cal. 1986), aff’d in part and rev'd

in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

Tird, an interlocutory appeal must be likely to materially

speed the termination of the litigation. This factor is

linked to whether an issue of law is “controlling” in that

the court should consider the effect of a reversal by the

court of appeals on the management of the case. See In re

Cement Antitrust Litig., 673 F.2d at 1026.

App. 16

2. Stay Pending Appeal

Both Fed. R. Civ. P. 23(f) and 28 U.S.C. § 1292(b) give

the district court discretion to stay the proceedings pend-

ing an appeal. Moreover, this court possesses the inherent

power to control its own docket and calendar. Mediterra-

nean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465

(9th Cir. 1983) (citations omitted).

A trial court may, with propriety, find it is effi-

cient for its own docket and the fairest course for

the parties to enter a stay of an action before it,

pending resolution of independent proceedings

which bear upon the case. This rule .. . does not

require that the issues in such proceedings are

necessarily controlling of the action before the

court.

Id. (quoting Leyva v. Certified Grocers, 593 F.2d 857, 863-

64 (9th Cir. 1979).

ANALYSIS

1. Controlling Issue of Law

Defendant argues that the court’s ruling with respect

to whether a PRE must meet the standing requirements of

CERCLA § 113 before bringing § 107 contribution claim is

a controlling issue of law because resolution of the issue

determines whether plaintiff’s claims are viable. (Def.’s

Mot., filed Sept. 5, 2005, at 4-5). If a § 107 contribution

claim requires plaintiff to meet § 113 standing require-

ments, defendant argues that plaintiffs claims must be

dismissed. (/d.) Defendant argues that plaintiff has not

alleged compliance with § 113 standing requirements in

his first amended complaint, nor could plaintiff likely

App. 17

plead § 113 standing requirements if given leave to amend

the complaint. (Jd. at 5).

An issue is “controlling” if “resolution of the issue on

appeal could materially affect the outcome of litigation in

the district court.” In re Cement Antitrust Litig., 673 F.2d

at 1026. If a PRP is required to fulfill the standing re-

quirements of § 113 in order to bring contribution claims,

plaintiff’s federal claims for contribution under CERCLA

may be dismissed. Plaintiff’s other federal claims are for

declaratory relief relating to rights, duties, and liabilities

for future recovery of cost or damages. (Pl.’s First

Amended Compl., filed Nov. 22, 2002, 9 67-72). These

claims are dependant upon plaintiff’s contribution claims.

See Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1191 (9th

Cir. 2000). If plaintiff’s federal claims for contribution

must be dismissed for lack of standing, the federal de-

claratory relief claims will be dismissed, and plaintiff’s

complaint will only allege state law claims. The resolution

of whether a PRP must meet § 113 standing requirements

to bring an action for contribution will determine whether

plaintiff has jurisdiction to bring an action in this court.

Thus, the court’s June 16, 2005 order denying Bayer’s

motion to dismiss includes a controlling issue of law.

Crossclaimant Anselmo argues that even if §113

standing is required, the court will still have jurisdiction if

plaintiff and crossclaimant are allowed to amend the

complaint to state a cause of action for injunctive relief

under the Resource Conservation and Recovery Act

(“RCRA”). (Crossclaimant’s Opp’n, filed Sept. 20, 2005, at

5-6). This argument is unavailing. A contribution action

under CERCLA and an injunctive relief action under

RCRA are two entirely different claims for relief. Even if

the court grants leave to amend, the issue of whether

App. 18

§ 107 contains an implied right of action separate from

§ 113 standing requirements is a controlling issue of law

because it will materially affect the outcome of the litiga-

tion.

2. Substantial Ground for Difference of Opinion

Defendant argues that there is a substantial ground

for difference of opinion as to whether a PRP must allege

§ 113 standing requirements in order to properly plead a

§ 107 contribution claim. (Def.’s Mot. at 5-6). Defendant

points to the Supreme Court’s decision in Cooper Indus-

tries, Inc. v. Aviall, 125 S.Ct. 577 (2004) and the decision of

the Central District of California in City of Rialto v.

United State Department of Defense, No. EDCV 04-00079

(C.D. Cal. filed Aug. 16, 2005). (Jd.)

In Aviall, the Supreme Court held that a PRP who

“voluntarily” incurs response costs cannot assert a claim

for contribution under § 113(f). 125 S.Ct. at 583. The

’ Court expressly declined to decide whether the plaintiff

has an implied right of contribution under § 107. Jd. at

586. However, the Court noted that it had “visited the

subject of implied rights of contribution before” and cited

cases rejecting the creation of such rights. /d. The Court

did not overrule the cases from this circuit that recognize

an implied right to contribution in § 107, but did express

considerable skepticism regarding whether courts should

find such an implied right. Jd.

In Rialto, the Central District of California inter-

preted the Ninth Circuit’s decisions in Western Properties

and Pinal Creek as requiring a PRP to satisfy § 113 stand-

ing requirements in order bring a § 107 contribution claim.

No. EDCV 04-00079, at 7-8. The Rialto court rejected the

App. 19

plaintiff’s argument that a § 107 contribution claim is

available regardless of the a party’s ability to satisfy § 113

standing requirements. Jd. at 8-9. Specifically, the Rialto

court held that, although the Ninth Circuit distinguished

the matter decided in Western Properties from that decided

by the Supreme Court in Aviall based upon the plaintiff’s

allegation under § 107(a), the Ninth Circuit ultimately

based its conclusion that jurisdiction was proper upon the

plaintiff’s compliance with § 113 standing requirements.

Id. at 9-10. Therefore, the Rialto court dismissed the

plaintiff’s claims for failure to allege facts that satisfy

§ 113 standing requirements. Jd. at 14.

The Supreme Court’s skepticism in Aviall in conjunc-

tion with the alternate interpretation of Ninth Circuit

precedent by the district court in Rialto demonstrate that

reasonable jurists may differ in determining the standing

requirements for a CERCLA contribution claim. While two

other district courts have agreed with this court’s interpre-

tation of Ninth Circuit precedent,’ the issue is by no

means unambiguous. Thus, a substantial ground for

difference of opinion exists.

3. Materially Speed the Termination of Litigation

If § 113 standing requirements must be satisfied to

bring a § 107 claim, plaintiff's CERCLA contribution

* The Eastern District of California held that a PRP may bring a

CERCLA § 107 claim without meeting § 113 standing requirements.

Adobe Lumber vu. Taecker, No. CV S02-186, 2005 WL 1367065, *1 (E.D.

Cal. May 24, 2005). The Northern District of California also held that

§ 113 standing requirements did not need to be met. Ferguson v. Arcata

Redwood Co., No. C 03-05632, 2005 WL 1869445, *6 (N.D. Cal. Aug. 5,

2005).

App. 20

claims may likely be dismissed, resulting in a lack of

federal subject matter jurisdiction. Based upon the impor-

tance of this issue in determining the jurisdiction of the

court, resolution of this issue by the Ninth Circuit will

materially speed the termination of litigation.

4. Timeliness of Defendant’s Certification Motion

Plaintiff and counterclaimant argue that defendant’s

motion 3 should be denied because it was not brought in a

timely manner. Specifically, they contend that defendant’s

delay in bringing this motion until three months after the

entry of this court’s order waives the right to seek this

remedy. (Counterclaimant’s Opp’n at 2; Pl’s Opp’n at 6-7).

Section 1292(b) contemplates an expedited procedure for

interlocutory appeals. See Martens v. Smith Barney, Inc.,

238 F. Supp. 2d 596, 600 (S.D.N.Y. 2002) (denying motion

for interlocutory appeal where plaintiffs allowed almost

months to pass before filing the motion and offered no

reasonable explanation for the delay). However, in this

case, there is a reasonable justification for defendant’s

delay. The Central District of California’s decision in

Rialto was filed on August 16, 2005. Defendant filed the

motion on September 6, 2005. Therefore, because defen-

dant filed this motion in a timely manner after discovering

information relevant to the certification motion, plaintiff’s

argument that defendant’s motion is untimely is unavail-

ing.

5. Stay of Discovery Proceedings

Defendant requests a stay of discovery, pending the

Ninth Circuit’s ruling on the issue. (Def.’s Mot. at 7-8).

“A district court has inherent discretion to control the

App. 21

disposition of the causes on its docket in a manner which

will promote economy of time and effort for itself, for

counsel, and for litigants.” Filtrol Corp. v. Kelleher, 467

F.2d 242 (9th Cir. 1972). Because the issue before the

Ninth Circuit may be dispositive of plaintiff’s federal

claims, a stay of the proceedings at this point will promote

economy of time and effort for both the parties and the

court.

CONCLUSION

For the reasons stated herein, defendant’s motion for

certification pursuant to 28 U.S.C. § 1292(b) is GRANTED. ~

Defendant’s motion to stay proceedings pending the

outcome of its interlécutory appeal is GRANTED. All dates

are hereby VACATED.

IT IS SO ORDERED.

DATED: October 4, 2005.

/s/ Frank C. Damrell Jr.

FRANK C. DAMRELL, dr.

UNITED STATES DISTRICT JUDGE

App. 22

EXHIBIT B

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqceb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 * FAX (916) 255-3015

[LOGO] {SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

8 February 2002

CERTIFIED MAIL #

7000 0520 0024 2571 4089

Goss-Jewett Corp. of Northern California

and Mr. Steve Lamanet

c/o Mr. William Burns, Esq.

15720 Winchester Boulevard

Los Gatos, CA 95030

CERTIFIED MAIL #

7000 0520 0024 2571 4096

Mr. James Kotrous

The Mattress Factory

4301 Power Inn Road

Sacramento, CA 95826

CERTIFIED MAIL #

7000 0520 0024 2571 4102

Mr. Edward Anselmo

770 Coronado Blvd

Sacramento, CA 95864

App. 23

CLEANUP AND ABATEMENT ORDER NO. R5-2002-

0707, MONITORING AND REPORTING PROGRAM

NO. R5-2002-0801, GOSS-JEWETT CORPORATION

FACILITY, SACRAMENTO, SACRAMENTO COUNTY

On 30 November 2001, I issued Cleanup and Abatement

Order (CAO) No. 5-01-714 requiring investigation and

cleanup of soil and groundwater at the former Goss-Jewett

Corporation facility at 4301 Power Inn Road in Sacra-

mento. At the same time, I issued Monitoring and Report-

ing Program (MRP) No. 5-01-842. Soil and groundwater

beneath the site are polluted with tetrachloroethylene

(PCE), with groundwater concentrations up to 8,100 ug/l,

and no investigation or cleanup is currently underway.

CAO No. 5-01-714 was issued to Goss-Jewett Corporation

of Northern California (Goss-Jewett), Mr. Steve Lamanet

(vice president and general manager of Goss-Jewett), and

Mr. James Kotrous (owner of the property at 4301 Power

Inn Road). The CAO initially required Goss-Jewett and

Mr. Steve Lamanet to perform the work to achieve compli-

ance, but if those parties failed to do so, the CAO stated

Mr. Kotrous would also be required to conduct the work.

Neither Goss-Jewett nor Mr. Steve Lamanet has complied

with the first two deadlines in the CAO.

Therefore, CAO No. 5-01-714 is hereby rescinded and

enclosed is CAO Order No. R5-2002-0707. This CAO is

issued to Goss-Jewett Corporation, Mr. Steve Lamanet,

Mr. James Kotrous, and Mr. Edward Anselmo, the former

owner of 4301 Power Inn Road. Mr. Anselmo leased the

property to Goss-Jewett Corporation for about 20 years.

Also enclosed is MRP No. R5-2002-0801, which requires

the four parties to monitor the groundwater quarterly for

App. 24

constituents of concern. This MRP replaces MRP No. 5-01-

842, which is hereby rescinded.

Failure to comply with the provisions of the CAO and/or

MRP could result in the Regional Board imposing civil

liability, including liability up to one thousand dollars

($1,000) for each day that required technical reports are

past due. Both Goss-Jewett and Steve Lamanet are also

under a Probation Order through the Sacramento County

District Attorney's Office. The DA’s Office has informed us

that noncompliance with the CAO also constitutes a

violation of the Probation Order.

If you have any questions regarding the CAO or MRP, or

need additional information, you may contact Wendy

Cohen at (916) 255-3075.

/s/ Thomas R Pinkos

for GARY M. CARLTON

Executive Officer

Thomas R. Pinkos

Assistant Executive Officer

Enclosures

cc: Regional Board Members

Ms. Frances McChesney, Office of Chief Counsel,

SWRCB, Sacramento

Mr. Darrin Polhemus, Compliance Assurance &

Enforcement Unit, SWRCB, Sacramento

Ms. Lisa Burroughs, Esq., Sacramento County

District Attorney’s Office, Sacramento

Mr. Dana Booth, Sacramento County Environmental

Management Department, Sacramento

Mr. Robert Randall, Jr., Procter & Gamble, Sacramento

Mr. Michael Lamanet, Goss-Jewett Co., Fresno

Mr. Jerry Fong, Carey & Carey, Palo Alto

App. 25

CALIFORNIA REGIONAL WATER

QUALITY CONTROL BOARD

CENTRAL VALLEY REGION

CLEANUP AND ABATEMENT

ORDER NO. R5-2002-0707

FOR

GOSS-JEWETT CORPORATION OF

NORTHERN CALIFORNIA, INC.,

STEVE LAMANET,

EDWARD ANSELMO,

AND JAMES KOTROUS

FORMER GOSS-JEWETT FACILITY

SACRAMENTO, SACRAMENTO COUNTY

This Order is issued to Goss-Jewett Corporation of North-

ern California, Inc. (Goss-Jewett), Steve Lamanet, Edward

Anselmo, and James Kotrous based on provisions of

California Water Code Section 13304, which authorizes

the Regional Water Quality Control Board, Central Valley

Region (Regional Board) to issue a Cleanup and Abate-

ment Order. Goss-Jewett, Steve Lamanet, Edward

Anselmo, and James Kotrous are hereafter collectively

referred to as Discharger.

The Regional board finds, with respect to the Discharger’s

acts or failure to act, the following:

1. The property at 4301 Power Inn road, Sacramento

(Attachment 1) is owned by James Kotrous. From

1976 until October 1995, the property was owned by

Edward Anselmo. Goss-Jewett operated on the north-

ern part of the property for about 25 years as a dry

cleaning chemical distribution facility. Mr. Steve La-

manet is a vice president and the general manager of

Goss-Jewett. Goss-Jewett leased the property from

Edward Anselmo until October 1995. The existing

lease continued until it expired in June 1996. The site

App. 26

is currently occupied by The Matters Factory, a retail

bedding store owned by Mr. Kotrous.

On 30 November 2001, the Executive Officer issued

Cleanup and Abatement Order No. 5-01-714 to Goss-

Jewett, Steve Lamanet, and James Kotrous. That Or-

der stated Goss-Jewett and Mr. Lamanet were ini-

tially required to perform the work to achieve

compliance, and if they failed to do so, Mr. Kotrous

would be required to perform the work after notifica-

tion by the Board and issuance of a revised Cleanup

and Abatement Order. Neither Goss-Jewett nor Mr.

Lamanet has complied with Order No. 5-01-714.

Edward Anselmo is subject to this Order because as

the former owner of the property, he leased the prop-

erty to Goss-Jewett and Steve Lamanet and permited

them to conduct activities that caused waste to be

discharged and deposited where it discharged into

waters of the state and has created and threatens to

create a condition of pollution or nuisance. James

Kotrous is subject to this Order because as the owner

of the property, he leased the property to Goss-Jewett

and Steve Lamanet and permitted them to conduct

activities that caused waste to be discharged or depos-

ited where it discharged into waters of the state and

has created and threatens to create a condition of pol-

lution or nuisance. In addition, James Kotrous, as the

current owner of the property, is a person who has

caused or permitted waste to be discharged to waters

of the state where it has created and threatens to cre-

ate a condition of pollution or nuisance because he

has knowledge of the discharge and the ability to con-

tro] it. Goss-Jewett and Steve Lamanet are subject to

this Order because they conducted activities at the

property that caused or permitted waste to be dis-

charged or deposited where it discharged into waters

of the state and has created and threatens to create a

condition of pollution or nuisance.

App. 27

On 4 January 1996, Sacramento County Environ-

mental Management Department (Sacramento

County) and the City of Sacramento, Division of Haz-

ardous Materials (City) responded to allegations from

a former employee that Goss-Jewett was illegally

storing hazardous materials at the site. Upon arrival,

Sacramento County and City representatives ob-

served approximately 100 55-gallon containers, some

with unknown liquids, and a trailer that contained

numerous chemical containers in various stages of

degradation. Many of the containers had failed, and

there were solids and liquids mixed on the floor of the

trailer, which had major corrosion. Near the trailer

was an aboveground storage tank (AGT) that con-

tained about 800 to 1,000 gallons of tetrachloroethene

(PCE). The PCE dispenser did not have a nozzle and,

according to the Sacramento County incident report, -

“it appeared that there was a lot of perc [PCE] that

had leaked into the soil.” A near surface soil sample

obtained near the PCE dispenser contained 300 ppm

of PCE.

The AGT was removed at an unknown time in 1996.

During August 1996, Goss-Jewett attempted to re-

move contamination by excavating soil from beneath

the former AGT. A soil sample obtained at 6.5 feet be-

low the ground surface (bgs) from the base of the ex-

cavation contained 330 ppm of PCE. Sacramento

County assumed. lead regulatory agency status for

the environmental cleanup after the soil excavation

was completed.

On 10 January 1997, Kleinfelder, Inc., an environ-

mental consulting firm, installed a soil vapor monitor-

ing well (SVW-1) to 31 feet bgs at the location of the

former AGT. Kleinfelder reported up to 3 ppm of PCE

at 5 feet bgs in soil samples obtained from the boring

for the well. Based on the results of the soil sampling,

Sacramento County required Goss-Jewett to install a

10.

App. 28

groundwater monitoring well adjacent to the AGT. On

5 May 1997, Kleinfelder installed groundwater moni-

toring well MW-1 about 20 feet southeast of the for-

mer AGT. The groundwater sample obtained from

MW-1 contained 2,700 pg/l of PCE.

On 4 December 1997, Ramage Environmental con-

ducted a short-term (1.25 hours) soil vapor extraction

test at SVW-1. Ramage did not analyze extracted soil

vapors in the field or retain soil vapor samples for

chemical analysis. The extraction test indicated that

-short-circuiting was not occurring but did not ade-

quately assess the viability of a soil vapor extraction

system.

In January 1998, Ramage installed groundwater

monitoring well MW-2 about 50 feet northeast of the

farmer AGT and groundwater/soil vapor monitoring

well SVW-1A within the former AGT excavation.

Groundwater samples obtained by Ramage in Janu-

ary 1998 contained 8,100 pg/l (SVW-1A), 6,400 pg/

(MW-1), and 1,300 pg/l (MW-2) of PCE, respectively.

Based on the resulte of the groundwater investiga-

tion, Sacramento County required Goss-Jewett to

conduct a well survey. The well survey showed that 35

wells existed within 2,000 feet of the site, including a

private well used for domestic supply within 500 feet

south and downgradient from the site. Goss-Jewett

subsequently sampled that well on 22 June 1998 and

it contained 754 pg/l of PCE. The well was removed

from service and municipal water was supplied the

day the results were released to Sacramento County.

Goss-Jewett has not conducted additional environ-

mental investigation/remediation since the domestic

well was sampled.

In a letter dated 28 September 1999, Sacramento

County requested that the Regional Board assume

11.

12.

13.

App. 29

lead regulatory agency status for the environmental

cleanup at the site. At the time of the request, the

Sacramento County District Attorney was pursuing

criminal charges against Goss-Jewett and Mr. Steve

Lamanet for hazardous waste handling and storage

violations.

On 20 January 2000, the District Attorney negotiated

separate plea agreements with Goss-Jewett, which

included a $100,000 fine and probation, and Mr. La-

manet, which included a $25,000 fine and probation.

On 17 February 2000, Regional Board staff sent Goss-

Jewett a letter requesting a work plan for site as-

sessment and an evaluation of groundwater monitor-

ing wells on the Proctor & Gamble property south of

the site for inclusion in the site investigation. Goss

Jewett replied in an unsigned, undated letter received

on 4 April that it “is no longer in a position to con-

tinue the program it started in 1995.”

On 21 June 2000, the Board’s Executive Officer sent

Goss-Jewett Corp. and Steve Lamanet a letter requir-

ing the following information pursuant to Section

13267 of the California Water Code:

a. By 7 July 2000, the name and title of an officer of

Goss-Jewett Corp. (Goss-Jewett’s authorized rep-

resentative) who will be responsible for all com-

munications with the Board. All technical reports

submitted by Goss-Jewett were required to in-

clude a statement signed by the authorized repre-

sentative of Goss-Jewett certifying under penalty

of law that the representative has examined and

is familiar with the report and that to his knowl-

edge, the report is true, complete, and accurate.

b. By 21 July 2000, a work plan for site assessment

prepared in general accordance with the attached

outline that included a sufficient number of soil

14.

15.

16.

App. 30

borings and wells to determine the vertical and

lateral extent of contaminants originating from

the site.

c. By 21 July 2000, an evaluation of the location

and historical groundwater data from the Proctor

& Gamble (P&G) wells for potential incorpora-

tion in future groundwater contamination as-

sessments. In a letter dated 9 July 1998, P&G

recommended that its monitoring wells be in-

cluded in the Goss-Jewett groundwater monitor-

ing program.

d. By 22 December 2000, an interim remedial ac-

tion plan for on-site soil and groundwater con-

tamination.

Goss-Jewett Corp. and Mr. Lamanet have not submit-

ted the required items

The Fourth Edition of the Water Quality Control Plan

for the Sacramento River and San Joaquin River Ba-

sins (Basin Plan) establishes beneficial uses of the

waters of the state and water quality objectives to

protect those uses. The beneficial uses of the ground-

water beneath the site are domestic, municipal, in-

dustrial, and agricultural supply.

PCE is a refined hydrocarbon product, is not natu-

rally-occurring, and is a known human carcinogen.

Pollution of groundwater with elevated concentra-

tions of PCE impairs the beneficial uses of the

groundwater.

The water quality objectives in the Basin Plan for

PCE include the state primary maximum contami-

nant level (MCL) specified in Title 22 California Code

of Regulations and the Basin Plan’s narrative toxicity

objective for groundwater. The MCL for PCE is 5 pg/l

and the numeric standard necessary to comply with

17.

18.

App. 31

the narrative toxicity objective is 0.06 pg/l based on

Department of Health Services Public Health Goal.

The groundwater exceeds the water quality objectives

for PCE. PCE is a waste as defined in Water code sec-

tion 13050. The exceedance of applicable water qual-

ity objectives in the Basin Plan is pollution as defined

in Water Code section 13050. The Discharger has

caused or permitted waste to be discharged or depos-

ited where it has discharged to waters of the state

and has created, and continues to threaten to create,

a condition of pollution or nuisance.

The State Water Resources Control Board has

adopted Resolution No. 92-49, the Policies and Proce-

dures for Investigation and Cleanup and Abatement of

Discharges Under Water Code Section 13304. This

Policy sets forth the policies and procedures to be

used during an investigation or cleanup of a polluted

site and requires that cleanup standards be consis-

tent with State Water Board Resolution 68-16 (the

antidegradation policy). Resolution 92-49 and the Ba-

sin Plan establish the cleanup levels to be achieved

Resolution 92-49 requires the waste to be cleaned up

to background, or if that is not reasonable, to an al-

ternative level that is the most stringent level that is

economically and technologically feasible in accor-

dance with Title 23 California Code of Regulations

section 2550.4. Any alternative cleanup level to back-

ground must (1) be consistent with the maximum

benefit to the people of the state; (2) not unreasonably

affect preseut and anticipated beneficial use of such

water; and (3) not result in water quality less than

that prescribed in the Basin Plan and applicable Wa-

ter Quality Control Plans and Policies of the State

Water Resources Control Board.

Section 13304(a) of the California Water Code pro-

vides that:

19.

App. 32

“Any person who has discharged or discharges

waste into waters of the state in violation of any

waste discharge requirements or other order or

prohibition issued by a regional board or the

state board, or who has caused or permitted,

causes or permits, or threatens to cause or per-

mit any waste to be discharged or deposited

where it is, or probably will be, discharged into

the waters of the state and creates, or threatens

to create, a condition of pollution or nuisance,

shall upon order of the Regional Board clean up

the waste or abate the effects of the waste, or, in

the case of threatened pollution or nuisance, take

other necessary remedial action, including but

not limited to, overseeing cleanup and abatement

efforts. Upon failure of any person to comply with

the cleanup or abatement order, the Attorney

General, at the request of the board, shall peti-

tion the superior court for that county for the is-

suance of an injunction requiring the person to

comply with the order. In any such suit, the court

shall have jurisdiction to grant a prohibitory or

mandatory injunction, either preliminary or

permanent, as the facts may warrant.”

Section 13267(b) of the California Water Code pro-

vides that:

“In conducting an investigation specified in sub-

division (a), the regional board may require that

any person who has discharged, discharges, or is

suspected of discharging, or who proposes to dis-

charge waste within its region, or any citizen or

domiciliary, or political agency or entity of this

state who has discharged, discharges, or is sus-

pected of discharging, or who proposes to dis-

charge waste outside of its region that could

affect the quality of waters of the state within its

region shall furnish, under penalty of perjury,

20.

21.

22.

23.

App. 33

technical or monitoring program reports which

the regional board requires. The burden, includ-

ing costs, of these reports shall bear a reasonable

relationship to the need for the report and the

benefits to be obtained from the reports.”

The technical reports required by this Order are

necessary to assure compliance with this Order.

Existing data and information about the site in-

dicates that waste, including PCE, has been dis-

charged or is discharging at the property, which ~

is owned, formerly owned, or leased by the Dis-

chargers named in this Order.

Section 13304(c)(1) of the California Water Code

provides that:

“.., the person or persons who discharged the

waste, discharges the waste, or threatened to

cause or permit the discharge of the waste within

the meaning of subdivision (a), are liable to that

government agency to the extent of the reason-

able costs actually incurred in cleaning up the

waste, abating the effects of the waste, supervis-

ing cleanup or abatement activities, or taking

other remedial actions...”

If the Discharger fails to comply with this Cleanup

and Abatement Order, the Executive Officer may re-

quest the Attorney General to petition the superior

court for the issuance of an injunction.

If the Discharger intentionally or negligently violates

this Cleanup and Abatement Order, then the Dis-

charger may be liable civilly in a monetary amount

provided by the California Water Code.

The issuance of this Order is an enforcement action

taken by a regulatory agency and is exempt from the

provisions of the California Environmental Quality

App. 34

Act, pursuant to Section 15321(a)(2), Title 14, Cali-

fornia Code of Regulations.

24. Any person affected by this action of the Board may

petition the State Water Resources Control Board

(State Board) to review the action in accordance with

Title 23 California Code of Regulations Sections 2050-

2068. The State Board must receive the petition

within 30 days of the date of this Order. Copies of the

law and regulations applicable to filing petitions will

be provided upon request. In addition to filing a peti-

tion with the State Board, any person affected ad-

versely by this Order, may request the Regional

Board to reconsider this Order. Such request should

be made within 30 days of the date of this Order. Note

that even if reconsideration by the Regional Board is

sought, filing a petition with the State Board within

the statutory time period is necessary to preserve the

petitioner’s legal rights.

IT IS HEREBY ORDERED that, pursuant to Section

13304 and Section 13267 of the California Water Code,

Goss-Jewett Corporation of Northern California Inc., Steve

Lamanet, Edward Anselmo, and James Kotrous shall:

1. Reimburse the Regional Water Quality Control Board

for reasonable costs (as estimated by Board staff at

the beginning of each fiscal year) associated with

oversight of the cleanup of this facility. Failure to do

so shall be considered a violation of this Order. By 15

March 2002, submit the name and address of the

person who will receive and be responsible for pay-

ment of invoices.

2. Investigate, clean up, and abate, forthwith, soil and

groundwater polluted by activities at 4301 Power Inn

Road, Sacramento, in conformance with the State

Board’s Resolution No. 92-49 Policies and Procedures

App. 35

for Investigation and Cleanup and Abatement of Dis-

charges Under Water Code Section 13304 and with the

Regional Board’s Water Quality Control Plan for the

Sacramento River and San Joaquin River Basins (in

particular the Policies and Plans listed within the

Control Action Considerations portion of Chapter IV).

“Forthwith” means as soon as is reasonably possible.

Compliance with this requirement shall include, but

not be limited to, completing the tasks listed below.

All site assessment work plans and reports and

feasibility studies shall contain the information listed

in Attachments 2, 3, and 4, respectively, which are

made part of this Order. Work shall be conducted only

after work plans are approved or conditionally ap-

proved by Regional Board staff. All reports shall in-

clude a cover letter from the Discharger stating

concurrence or nonconcurrence with the conclusions

and recommendations in the report.

As required by the California Business and Profes-

sions Code Sections 6735, 7835, and 7835.1, all re-

ports shall be prepared by, or under the supervision

of, a registered professional engineer or geologist and

signed by the registered professional.

The Discharger shall complete the following tasks by

the listed dates:

SITE ASSESSMENT

a. By 29 March 2002, submit a work plan for site

assessment of soil and groundwater pollution;

which contains the information in Attachment 2.

The work plan shall include a sufficient number

of soil gas sampling points and wells to deter-

mine the vertical and lateral extent of contami-

nants originating from the site. The work plan

also shall include a well survey identifying all

App. 36

water supply wells within a '/-mile radius of the

site and plans to sample these wells.

Within 30 days of staff approval of the work plan

for site assessment, implement the work plan in

accordance with the approved time schedule,

which shall become part of this Order.

Submit a site assessment report for soil and

groundwater in accordance with the approved

time schedule, but no later than 26 July 2002.

The site assessment report shall contain the in-

formation in Attachment 3 and include recom-

mendations and a work plan for additional

investigation, if needed. The work plan for addi-

tional investigation shall include a sufficient

number of soil gas sampling points and wells to

determine the vertical and lateral extent of pol-

lutants originating from the site. Within 30 days

of staff approval of the work plan for additional

site assessment, the Discharger shall implement

the work plan and submit a site assessment re-

port, which contains the information in Attach-

ment 3, in accordance with the approved time

schedule, which shall become part of this Order.

Dy 26 July 2002, submit a plan to provide a re-

placement water supply for any water supply

wells above the Department of Health Services’

Public Health Goal of 0.06 pg/I.

SOIL FEASIBILITY STUDY AND REMEDIATION

e,

By 23 August 2002, submit a Feasibility Study/

Remedial Options Evaluation Report for reme-

diation of the soil at the site, which contains the

information in Attachment 4. The preferred al-

ternative must meet the range of cleanup levels

as described in the Basin Plan and Resolution

App. 37

92-49. The Discharger shall attempt to clean up

each constituent to background concentrations,

or to the level that is technically and economi-

cally feasible and at least achieves the water

quality objectives of the Basin Plan.

f. Within 30 days of staff approval of the Feasibil-

ity Study/Remedial Options Evaluation Report

but no later than 30 December 2002, submit a

Soil Remedial Action Plan which describes the

approved alternative(s) for soil remediation and in-

cludes a time schedule to conduct the remediation

activities. The approved time schedule to imple-

ment the soil remediation shall become a part of

this Order.

g. Within 60 days of Executive Officer approval of

the Soil Remedial Action Plan, commence soil

remediation or installation of the soil remedia-

tion system. The Discharger shall notify staff by

telephone prior to beginning field work.

h. Within 120 days of Executive Officer approval of

the Soil Remedial Action Plan, submit a report

describing the status and results of the soil re-

medial work (Soil Remedial Action Implementa-

tion Report). The report shall also clearly show

whether the installation of any remediation sys-

tem is complete, and if not, give a schedule and

proposed work plan for installation of the re-

maining soil remedial activities, including a pro-

posed monitoring plan.

GROUNDWATER FEASIBILITY STUDY AND REMEDIATION

i. Within 60 days of submittal of the Soil Remedial

Action Plan but no later than 28 February

2003, submit a Feasibility Study/Remedial Op-

tions Evaluation Report for remediation of the

App. 38

groundwater at the site, which contains the in-

formation in Attachment 4. The preferred alter-

native must meet the range of cleanup levels as

described in the Basin Plan and Resolution 9249.

The Discharger shall attempt to clean up each

constituent to background concentrations, or to

the level that is technically and economically fea-

sible and at least achieves the water quality ob-

jectives of the Basin Plan.

Within 60 days of staff approval of the Feasibil-

ity Study/Remedial Options Evaluation Report,

submit a Groundwater Remedial Action Plan

which describes the approved alternative(s) for

groundwater remediation and includes a time

schedule to conduct the remediation. The ap-

proved time schedule to implement the ground-

water remediation shall become a part of this

Order.

Within 60 days of staff approval of the Groundwa-

ter Remedial Action Plan, commence groundwater

remediation or installation of the groundwater

remediation system. The Discharger shall notify

staff by telephone prior to beginning fieldwork.

Within 120 days of staff approval of the Ground-

water Remedial Action Plan, the Discharger shall

submit a report describing the status and results

of the groundwater remedial work (Groundwater

Remediation Implementation Report). The report

shall also clearly show whether the installation

of any remediation system is complete, and if

not, give a schedule and proposed work plan for

installation of the remaining groundwater reme-

dial activities, including a proposed monitoring

plan.

App. 39

m. The Discharger shall conduct periodic monitoring

of groundwater and soil gas the existing wells

and any additional wells in accordance with

Monitoring and Reporting Program No. R5-2002-

0801.

If, for any reason, the Discharger is unable to perform

any activity or submit any document in compliance

with the schedule set forth herein, or in compliance

with any work schedule submitted pursuant to this

Order and approved by the Executive Officer, the Dis-

charger may request, in writing, an extension of the

time specified. The extension request shall include

justification for the delay. An extension shall be

granted only by revision of this Order.

Upon startup of any remediation system(s), operate

the remediation system(s) continuously, except for pe-

riodic and required maintenance. Any interruptions

in the operation of the remediation system(s), other

than for maintenance or emergencies, without prior

approval from the Executive Officer is a violation of

this Order.

Periodically optimize remedial systems and report on

the effectiveness of the optimization in the Annual

Report.

Notify Regional Board staff at least three working

days prior to any onsite Work, testing or sampling.

Obtain all local and state permits and access agree-

ments necessary to fulfill the requirements of this

Order prior to beginning the work.

Continue any remediation or monitoring activities

until such time as the Executive Officer determines

that sufficient cleanup has been accomplished and

this Order has been rescinded.

App. 40

9. If, in the opinion of the Executive Officer, the Dis-

charger fails to comply with the provisions of this Or-

der, the Executive Officer may refer this matter to the

Attorney General for judicial enforcement or may is-

sue a complaint for administrative civil liability. The

Executive Officer may also request action by the Sac-

ramento County District Attorney.

This Order is effective upon the date of signature.

/s/ Gary M. Carlton

GARY M. CARLTON,

Executive Officer

8 FER 2002

(Date)

App. 41

‘

ATTACHMENT 1

APPROXIMATE. SCALE (FEET)

_ RAMAGE

ENVIRONMENTAL

Octe Prepared

1/30/38

App. 42

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqeb5 ~

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 * FAX (916) 255-3015

[LOGO] [SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

ATTACHMENT 2

ITEMS TO BE INCLUDED INA

SITE ASSESSMENT WORK PLAN

The outline below is a minimum requirement for items to

be included and discussed in the text of all site assessment

work plans submitted to the Board. All work plans must

be signed by a registered geologist, certified engineering

geologist, or civil engineer registered or certified by the

State of California. Other pertinent information specific to

each individual investigation also should be included.

I. BACKGROUND

A. Site History

State all operations conducted at the site.

Identify present and hisotric [sic] chemical usage

and handling procedures.

List all chemical spills and their disposition.

Identify all past and present above ground and

under ground tank locations.

Identify tank capacities and other specifications

as necessary.

Identify tank contents, past and present.

App. 43

Submit all records of tests or repairs on fuel lines

and tanks. |

Identify locations of maintenance shops, chemi-

cals used in the shops, method of chemical stor-

age and disposal.

B. Topographic map of site vicinity showing:

All natural and man-made drainage features in-

cluding ditches and surface impoundments, and

the drainages destination;

Utilities, especially storm drain system;

Location of existing monitoring wells, including

those installed by other parties;

Location of above ground and underground stor-

age tanks, other waste-handling facilities, and/or

spill site;

Location of a major body of water relative to the

site;

Location of any nearby private, municipal, or ir-

rigation wells; and

Other major physical and man-made features.

C. Geology/Hydrogeology

Include proposal for logging of boreholes and

characterizing site geology, and identifying un-

confined or confined aquifers and contaminant

flowpaths.

II. PREVIOUS SITE ASSESSMENTS

Provide a detailed description of any previous site

assessment conducted to determine if there is any soil

or ground water contamination. Include analytical re-

sults of all soil and water samples analyzed, and wa-

ter level and floating product measurements.

III. FIELD INVESTIGATION

A. General

Monitoring well locations and rationale

Survey details

App. 44

Equipment decontamination procedures

Health and safety plan

Drilling Details

Describe drilling and logging methods

Monitoring Well Design

Casing diameter

Borehole diameter

Depth of surface seal

Well construction materials

Diagram of well construction

Type of well cap

Size of perforations and rationale

Grain size of sand pack and rationale

Thickness and position of bentonite seal and

sand pack

Depth of well, length and position of perforated

interval

Well Development

Method of development to be used

Method of determining when development is com-

plete

Method of development water disposal

Soil Sampling a

Cuttings disposal method

Analyses to be run and methods

Sample collection and preservation method

Intervals at which soil samples are to be col-

lected

Number of soil samples to be analyzed and ra-

tionale

Location of soil samples and rationale

QA/QC procedures

Well Sampling

Minimum time after development before sam-

pling (48 hours)

App. 45

Well purging method and amount of purge water

Sample collection and preservation method

QA/QC procedures

G. Water Level Measurement

Elevation reference point at each monitoring well

shall be within 0.01 foot. Ground surface eleva-

tion at each monitoring well shall be within 0.1

foot. Method and time of water level measure-

ment shall be specified.

IV. QA/QC PROCEDURES

Specify number of field blanks and duplicates.

V. TIME SCHEDULE FOR PROPOSED WORK

The work plan shall include a time schedule for

implementation of work.

App. 46

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqcb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 * FAX (916) 255-3015

[LOGO] [SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

ATTACHMENT 3

ITEMS TO BE INCLUDED INA

SITE ASSESSMENT REPORT

The outline below is a minimum requirement for items to

be included and discussed in the text of all site assessment

reports submitted to the Board. Other supporting data to

be included in the report, either within the text of the

report or in appendices, are italicized at the end of each

section. All reports must be signed by a registered geolo-

gist, certified engineering geologist, or civil engineer

registered or certified by the State of California. Other

pertinent information specific to each individual investiga-

tion also should be included.

I. INTRODUCTION

Summary of past investigations

Purpose of the recent investigation

Scope of the recent investigation

Time period in which the recent investigation was

carried out

Il.

III.

App. 47

SUMMARY

Number of wells drilled -

Results of soil and water analyses

Ground water flow direction and gradient

Possible source determination

FIELD INVESTIGATION

Well Construction

Number and depth of wells drilled

Date(s) wells drilled

Description of drilling and construction

Approximate locations relative to facility site(s)

Supporting Data:

A well construction diagram for each well should be

included in the report which shows the following de-

tails:

Total depth drilled

Depth of open hole (same as\total depth drilled if

no caving occurs)

Footage of hole collapsed

Length of slotted casing installed

Depth of bottom of casing

Depth to top of sand pack

Thickness of sand pack

Depth to top of bentonite seal

Thickness of bentonite seal

Thickness of concrete grout

Boring diameter

Casing diameter

Casing material

Size of perforations” -

Number of bags of sand

Well elevation at top of casing

Depth to ground water

Date of water level measurement

Monitoring well number

Date drilled

Location

App. 48

Well Development

Date(s) of development of each well

Method of development

Volume of water purged from well

How well development completion was determined

Method of effluent disposal

Supporting Data:

Field notes from well development should be in-

cluded in report.

Water Sampling

Date(s) of sampling

How well was purged

How many well volumes purged

Levels of temperature, EC, and pH at stabilization

Sample collection, handling, and preservation

methods

Sample identification

Analytical methods used

Soil Sampling

Date(s) of sampling

Sample collection, handling, and preservation

method

Sample identification

Analytical methods used

. FINDINGS OF THE INVESTIGATION

Lithology

Types of sediments encountered

Presence, location, and lateral continuity of any

significant sand, silt, or clay layers

Any visual signs of contamination

Supporting Data:

Well logs geologic cross-sections should be in-

cluded in the report.

App. 49

Analytical Results of Soil and Ground Water Sam-

pling

Analytical results of each monitoring well should

be summarized

Supporting Data:

Laboratory analytical sheets

Chain-of-custody forms

Water Levels

Static water levels measured when well drilled

Date(s) of water level measurements

Water levels determined prior to sampling

Supporting Data:

Dates of water level measurement, depths to

ground water, and ground water elevations

should be tabulated and included in the report.

Ground Water Gradient and Flow Direction

Ground water gradient and flow direction deter-

mined by the investigation should be discussed

and compared to the regional gradient and flow

direction.

Supporting Data:

A ground water contour map, drawn to scale, ~

should be provided which shows each well, its

ground water elevation, and lines of equal ground

water elevation. Ground water gradient and flow

direction should be shown on the map. The calcu-

lation of the gradient should be.included.

RESULTS OF QA/QC

QA/QC procedures

QC sample identification

Field blank analyses

Comparison of duplicate sample results

App. 50

VI. CONCLUSIONS AND RECOMMENDATIONS

Note any contamination found

Identify any suspected source of contamination, if

possible

Recommend any further investigative needs

App. 51

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacra)aento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqcb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 * FAX (916) 255-3015

[LOGO] [SEAL]

Winston H. Hickox Gray Davis

Secretary for ' Governor

Environmental

Protection

ATTACHMENT 4

ITEMS TO BE INCLUDED INA

FEASIBILITY STUDY/REMEDIAL

OPTIONS EVALUATION REPORT

The outline below is a minimum requirement for items to

be included and discussed in the text of all feasibility

studies/remedial option evaluation reports submitted to

the Board. Reports must be signed by a registered geolo-

gists, certified engineering geologist, or civil engineer

registered or certified by the State of California.

I. Purpose of Feasibility Study/Remedial Options Evalua-

tion

II]. Background

A. Description of Facility

B. Site History

1. Years of Operation

2. Chemical Use

3. Chemical Releases (Potential and Documented)

F.

G.

App. 52

Geology

1. Regional

2. Local, soil type, lithology, lateral extent of

lithologic units

Hydrogeology

1. Aquifers, Aquitards, Perched Aquifers

2. Groundwater flow rates, directions, recharge,

discharge

3. Groundwater Use

4. Extraction and injection wells affect on

groundwater flow

Surface Water

1. Losing or gaining streams, ponds etc.

2. Hydraulic connection with aquifers

Local Land Use

Previous Investigation and Remedial Actions

II. Nature and Extent of Contamination

A.

B.

Contaminants in Soils

1. Types and Concentrations

2. Lateral and Vertical Extent

Contaminants in Groundwater

1. Types and Concentrations

2. Lateral and Vertical Extent (including Perched

Zones)

III. Contaminant Fate and Transport

A.

Contaminant Properties

1. Mobility

2. Toxicity

3. Half-life

4. Chemical and biological degradation

B.

App. 53

Contaminant Transport based on Soil and Aqui-

fer Properties

IV. Remedial Action Objectives

V. Description of Remedial Action Alternatives

VI. Evaluation of Remedial Action Alternatives

A.

F.

QmAmOOD

Overall Protectiveness of Human Health and the

Environment

Compliance with Laws and Regulations

Long Term Effectiveness and Permanence

Reduction of Toxicity, Mobility, and Volume

Short Term Effectiveness

Implementability

Cost

State and Community Acceptance

VII. Potential Impacts of Remedial Actions

VIII. Estimated Project Schedule for Each Alternative

IX. Preferred Alternative

App. 54

CALIFORNIA REGIONAL WATER

QUALITY CONTROL BOARD

CENTRAL VALLEY REGION

MONITORING AND REPORTING

PROGRAM NO. R5-2002-0801

FOR

GOSS-JEWETT CORPORATION OF

NORTHERN CALIFORNIA, INC.

STEVE LAMANET, EDWARD ANSELMO,

AND JAMES KOTROUS

FORMER GOSS-JEWETT FACILITY

SACRAMENTO, SACRAMENTO COUNTY

Goss-Jewett Corporation of Northern California, Inc.

(Goss-Jewett), Steve Lamanet, Edward Anselmo, and

James Kotrous (hereafter collectively Discharger) own,

owned, or operated at 4301 Power Inn Road, Sacramento

(site; Attachment 1). James Kotrous currently owns the

property, and Edward Anselmo owned the property from

1976 until October 1995. Goss-Jewett, with Steve Lamanet

as vice president and general manager, operated on the

northern part of the property for about 25 years as a dry

cleaning chemical distribution facility. Groundwater at the

site, which is about 60 feet below the ground surface, is

polluted with tetrachloroethene (perchloroethylene; PCE),

a dry cleaning solvent, and other volatile organic com-

pounds (VOCs). ; 7

On 5 May 1997, Goss-Jewett installed a groundwater

monitoring well (MW-1) approximately 20 feet southeast of

a former aboveground storage tank (AGT) that was used to

store PCE. The groundwater sample obtained from MW-1

contained 2,700 pg/l of PCE. In January 1998, Goss-Jewett

installed groundwater monitoring well MW-2 about 50 feet

northeast of the former AGT and groundwater/soil vapor

monitoring well SVW-1A at the former AGT. Groundwater

App. 55

samples obtained in January 1998 contained 8,100 pg/l

(SVW-1A), 6,400 g/l (MW-1), and 1,300 pg/ (MW-2) of

PCE. No further sampling of the on-site wells has been

conducted. PCE from Goss-Jewett has also been detected

in a supply well at a private residence downgradient from

the site and in supply and monitoring wells at Procter &

Gamble (P&G), also downgradient from the site.

This Monitoring and Reporting Program (MRP) is issued

pursuant to Section 13267 of the California Water Code

and is necessary to delineate the groundwater contami-

nant plume and determine whether remediation efforts

are effective. Existing data and information about the site

shows the presence of various chemicals, including PCE

and other VOCs, emanating from the property under the

control of the Discharger and/or resulting from the Dis-

charger’s operation. The Discharger shall not implement

any changes to this MRP unless and until a revised MRP

is issued by the Executive Officer. This MRP replaces the

requirements listed in MRP No. 5-01-842, which was

issued on 30 November 2001.

Prior to construction of any new groundwater monitoring

or extraction wells, the Discharger shall submit plans and

specifications to the Board for review and approval. Once

installed, all new wells shall-be added to the monitoring

program and shall be sampled and analyzed according to

the schedule below.

GROUNDWATER MONITORING

As shown on Attachment 1, there are three groundwater

monitoring wells on the site (MW-1 and SVW-1A) and

adjacent property (MW-2). The groundwater monitoring

program for the three monitoring wells, and any wells

App. 56

installed subsequent to the issuance of this MRP shall

follow the schedule below. Sample collection and analysis

shall follow standard EPA protocol.

EPA Maximum

Analytical Reporting Sampling

Constituents Method _ Limit (pg/1)’ Frequency

Depth to - - Quarterly

Groundwater

Volatile Organic 8021B0 or 8260B 0.5 Quarterly

Compounds

’ For nondetectable results.

REPORTING

When reporting data, the Discharger shall arrange the

information in tabular form so that the date, the constitu-

ents, and the concentrations are readily discernible. The

data shall be summarized in such a manner as to illus-

trate clearly the compliance with this Order. If applicable,

the Discharger shall notify the Board within 48 hours of

any unscheduled shutdown of any soil vapor and/or

groundwater extraction system.

As required by the California Business and Professions

Code Sections 6735, 7835, and 7835.1, all reports shall be

prepared by a registered professional or their subordinate

and signed by the registered professional.

Quarterly reports shall be submitted to the Board by the

Ist day of the second month following the end of

each calendar quarter (i.e., by 1 February, 1 May, 1

August, and 1 November) until such time as the Execu-

tive Officer determines that the reports are no longer

App. 57

necessary. Each quarterly report shall include the follow-

ing minimum information:

(a)

(b)

(c)

(d)

(e)

(f)

(g)

a description of the quarterly groundwater sampling

events, including field logs. At a minimum, field logs

shall contain water quality parameters measured be-

fore, during, and after purging, method of purging,

depth of water, volume of water purged, etc.;

groundwater contour maps for all groundwater zones,

ifapplice'le; =~

isocontour contaminant concentration maps for all

monitored groundwater zones, if applicable;

cumulative data tables containing the water quality

analytical results and depth to groundwater;

a copy of the laboratory analytical data report;

if applicable, the status of any ongoing remediation,

including cumulative information on the mass of con-

taminant removed from the subsurface, system oper-

ating time, the effectiveness of the remediation

system, and any field notes pertaining to the opera-

tion and maintenance of the system; and

if applicable, the reasons for and duration of all

interruptions in the operation of any remediation sys-

tem, and actions planned or taken to correct and pre-

vent interruptions.

An annual report shall be submitted to the Board by 1

February of each year. This report shall contain an

evaluation of the effectiveness and progress of the investi-

gation and remediation, and may be submitted with the

fourth quarter monitoring report. The annual report shall

contain the following minimum information:

(a)

both tabular and graphical summaries of all data

obtained during the previous year;

(b)

(c)

(d)

(f)

(g)

(h)

(1)

App. 58

groundwater contour maps and contaminant concen-

tration maps containing al] data obtained during the

previous year;

a discussion of the long-term trends in the concentra-

tions of the pollutants in the groundwater monitoring

wells;

if applicable, an analysis of whether the contaminant

plume is being captured by the extraction system or is

continuing to spread;

a description of all remedial activities conducted

during the year, an analysis of their effectiveness in

removing the contaminants, and plans to improve

remediation system effectiveness;

if applicable, the anticipated date for completion of

cleanup or remediation activities;

an identification of any data gaps and potential

deficiencies/redundancies in the monitoring system or

reporting program;

if desired, a proposal and rationale for any revisions

to the groundwater sampling plan frequency and/or

list of analytes.

The results of any monitoring done more frequently than

required at the locations specified in the MRP also shall be

reported to the Board. The Discharger shall implement the

above monitoring program as of the date of the Order.

/s/ Gary M. Carlton

GARY M. CARLTON,

Executive Officer

8 FEB 2002

(Date)

App. 59

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App. 60

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqcb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 * FAX (916) 255-3015

[LOGO] [SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

17 June 2003

CERTIFIED MAIL #

7000 0520 0024 2571 3440

Goss-Jewett Corp. of Northern California

and Mr. Steve Lamanet

c/o Mr. William Burns, Esq.

15720 Winchester Boulevard

Los Gatos, CA 95030

CERTIFIED MAIL #

7000 0520 0024 2571 3457

Mr. James Kotrous

The Mattress Factory

4301 Power Inn Road

Sacramento, CA 95826

CERTIFIED MAIL #

7000 0520 0024 2571 3464

Mr. Steve Lamanet

3363 Kimber'y Way

San Mateo, CA 94403

App. 61

CERTIFIED MAIL #

7000 0520 0024 2571 3471

Mr. Edward Anselmo

770 Coronado Blvd

Sacramento, CA 95864

FINAL REVISED CLEANUP AND ABATEMENT

ORDER NO. R5-2003-0702, GOSS-JEWETT CORPO-

_RATION FACILITY, SACRAMENTO, SACRAMENTO

COUNTY

On 8 February 2002, the Executive Officer (EO) of the

Central Valley Regional Water Quality Control Board

(Regional Board) issued Cleanup and Abatement Order

(CAO) No. R5-2002-0707, requiring investigation and

cleanup of soil and groundwater at the former Goss-Jewett

Corporation facility at 4301 Power Inn Road in Sacra-

mento. At the same time, the EO issued Monitoring and

Reporting Program (MRP) No. R5-2002-0801. Soil and

groundwater beneath the site are polluted with tetra-

chloroethylene (PCE), with groundwater concentrations up

to 12,000 ug/l.

Cleanup and Abatement Order No. R5-2002-0707 was

issued to Goss-Jewett, Steve Lamanet, James Kotrous and

Edward Anselmo. Mr. Anselmo has completed substantial

work in compliance with this Order, and based on this

work it is appropriate to revise the Order to provide a

reasonable schedule to perform the necessary additional

assessment and remedial work. The revised CAO names

the same responsible parties (RPs) as CAO No. R5-2002-

0707. MRP No. R5-2002-0801 remains in place and re-

quires the four RPs to monitor the groundwater quarterly

for constituents of concern.

App. 62

Failure to comply with the provisions of the CAO and/or

MRP could result in the Regional Board imposing civil

liability, including liability up to one thousand dollars

($1,000) for each day that required technical reports are

past due. If you have any questions regarding the CAO or

MRP, or need additional information, please call Wendy

Cohen at (916) 255-3075.

/s/ Thomas R. Pinkos

THOMAS R. PINKOS

Executive Officer

Attachments

cc: Regional Board Members

Ms. Frances McChesney, Office of Chief Counsel,

SWRCB, Sacramento

Ms. Eileen Burke-Moody, Esq., Sacramento County

District Attorney’s Office, Sacramento

Mr. Dana Booth, Sacramento County Environmental

Management Department, Sacramento

Mr. Robert Randall, Jr., Procter & Gamble, Sacramento

Mr. Jerry Fong, Carey & Carey, Palo Alto

Mr. David W. Calfee III, Esq., Calfee & Young, Woodland

Mr. Ijaz Jamall, Risk-Based Decisions, Inc., Sacramento

Mr. Michael E. Vergara, Somach, Simmons & Dunn

Sacramento

App. 63

CALIFORNIA REGIONAL WATER QUALITY

CONTROL BOARD CENTRAL VALLEY REGION

CLEANUP AND ABATEMENT

ORDER NO. R5-2003-0702

FOR

GOSS-JEWETT CORPORATION OF NORTHERN _

CALIFORNIA, INC.,

STEVE LAMANET,

EDWARD ANSELMO,

AND JAMES KOTROUS

FORMER GOSS-JEWETT FACILITY shirt

SACRAMENTO, SACRAMENTO COUNTY

This Order is issued to Goss-Jewett Corporation of North-

ern California, Inc. (Goss-Jewett), Steve Lamanet, Edward

Anselmo, and James Kotrous based on provisions of

California Water Code Section 13304, which authorizes

the California Regional Water Quality Control Board,

Central Valley Region (hereafter Regional Board) to issue

a Cleanup and Abatement Order (Order). Goss-Jewett,

Steve Lamanet, Edward Anselmo, and James Kotrous are

hereafter collectively referred to as Discharger.

The Regional Board finds, with respect to the Discharger’s

acts or failure to act, the following:

INTRODUCTION

1. Goss-Jewett operated a tetrachloroethylene (PCE)

distribution facility at 4301 Power Inn Road, Sacra-

mento as shown in Attachment 1, which is made part

of this Order.

2. The property is owned bwJames Kotrous, who pur-

chased it in October 1995. From 1976 until October

1995, the property was owned by Edward Anselmo.

Goss-Jewett operated on the northern part of the

App. 64

property for about 25 years. Mr. Steve Lamanet was a

vice president and the general manager of Goss-

Jewett. Goss-Jewett leased the property from Edward

Anselmo until October 1995. The existing lease con-

tinued until it expired in June 1996. The site is cur-

rently occupied by The Mattress Factory, a retail

bedding store owned by Mr. Kotrous.

On 30 November 2001, the Executive Officer issued

Cleanup and Abatement Order No. 5-01-714 to Goss-

Jewett, Steve Lamanet, and James Kotrous. That Or-

der stated Goss-Jewett and Mr. Lamanet were ini-

tially required to perform the work to achieve

compliance, and if they failed to do so, Mr. Kotrous

would be required to perform the work after notifica-

tion by the Board and issuance of a revised Cleanup

and Abatement Order. Neither Goss-Jewett nor Mr.

Lamanet complied with Order No. 5-01-714.

On 8 February 2002, the Executive Officer issued

Cleanup and Abatement Order No. R5-2002-0707 to

Goss-Jewett, Steve Lamanet, James Kotrous and Ed-

ward Anselmo. Edward Anselmo has completed sub-

stantial work in compliance with this Order, and

based on this work it is appropriate to revise the Or-

der to provide an accurate and reasonable schedule to

perform necessary additional site assessment and

remedial work.

Edward Anselmo and James Kotrous are subject to

this Order because, as the former and current owners

of the property, respectively, they leased the property

to Goss-Jewett and Steve Lamanet, had knowledge of

the type of business Goss-Jewett was engaged in and

permitted them to conduct activities that caused

waste to be discharged or deposited where it dis-

charged into waters of the state and created and

threatens to create a condition of pollution or nui-

sance. In addition, James Kotrous, as the current

App. 65

owner of the property, is a person who has caused or

permitted waste to be discharged to waters of the

state where it has created and threatens to create a

condition of pollution or nuisance because he had

knowledge of the discharge and the ability to control

it, including the ongoing movement of the waste from

the soil to the groundwater and the continued move-

ment of the groundwater plume. Goss-Jewett and

Steve Lamanet are subject to this Order because they

conducted activities at the property that caused or

permitted waste to be discharged or deposited where

it discharged into waters of the state and has created

and threatens to create a condition of pollution or

nuisance, Mr. Lamanet was onsite during facility op-

erations and was directly involved in those opera-

tions.

BACKGROUND

On 4 January 1996, Sacramento County Environ-

mental Management Department (Sacramento

County) and the City of Sacramento, Division of Haz-

ardous Materials (City) inspected the site and ob-

served approximately 100 55-gallon containers in

various stages of degradation. They also observed an

aboveground storage tank (AGT) that contained tet-

rachloroethene (PCE). The PCE dispenser did not

have a nozzle and, according to the Sacramento

County incident report, “it appeared that there was a

lot of perc [PCE] that had leaked into the soil.” A near

surface soil sample obtained near the PCE dispenser

contained 300 ppm of PCE.

The AGT was removed at an unknown time in 1996.

During August 1996, Goss-Jewett obtained a soil

sample from 6.5 feet below the ground surface (bgs) at

the site of the AGT, winch contained 340 ppm of PCE.

Sacramento County assumed lead regulatory agency

10.

11.

App. 66

status for the environmental cleanup after the soil ex-

cavation was completed.

Between December 1997 and June 1998, Goss-Jewett

conducted investigations which included installation

of a soil vapor extraction well and two groundwater

monitoring wells. The viability of a soil vapor extrac-

tion system was not adequately assessed, but the in-

vestigations found groundwater contained up to 8,100

ug/l of PCE.

Based on the results of the groundwater investiga-

tion, Sacramento County required Goss-Jewett to

conduct a well survey. The well survey records

showed that 35 wells had been drilled within 2,000

feet of the site, including a private well used for do-

mestic supply within 500 feet south and downgradi-

ent from the site. Goss-Jewett subsequently sampled

that well on 22 June 1998 and it contained 754 ug/l of

PCE. The well was removed from service and munici-

pal water was supplied the day the results were re-

leased to Sacramento County. Goss-Jewett has not

conducted additional environmental investigation/

remediation since the domestic well was sampled.

In a letter dated 28 September 1999, Sacramento

County requested that the Regional Board assume

lead regulatory agency status for the environmental

cleanup at the site. At the time of the request, the

Sacramento County District Attorney was pursuing

criminal charges against Goss-Jewett and Mr. Steve

Lamanet for hazardous waste handling and storage

violations.

On 20 January 2000, the District Attorney negotiated

separate plea agreements with Goss-Jewett, which

included a $100,000 fine and probation, and Mr. La-

manet, which included a $25,000 fine and probation.

12.

13.

14.

15.

16.

App. 67

In 2000, Regional Board staff sent several letters to

Goss-Jewett and Mr. Lamanet requiring work plans

for site investigation and cleanup. Neither Goss-

Jewett nor Mr. Lamanet submitted any of the re-

quired items.

Following issuance of Cleanup and Abatement Order

‘No. R5-2002-0707, on 2 May 2002, Edward Anselmo

signed the Acknowledgment of Receipt of Oversight

Cost Reimbursement Account Letter in which he

agreed to pay Regional Board staff costs for oversight

of the cleanup and abatement.

On 26 August 2002, Risk-Based Decisions, Inc., -

(RBDI) an environmental consulting firm, submitted

a Preliminary Site Assessment Report on behalf of

Edward Anselmo with the results of a soil gas survey

conducted in the area surrounding the former AGT

and groundwater samples collected from the existing

monitoring wells and downgradient domestic wells.

They found up to 13,000 pg/l PCE in the soil vapor at

a depth of 20 feet, and up to 17,000 pg/] PCE in an on-

site monitoring well. Two industrial water supply

wells used by the Pavestone Company at 4751 Power

Inn Road, 1,200 feet downgradient of the Goss-Jewett

facility, contained up to 6.4 yg/l. A well used for cool-

ing water at the Proctor & Gamble facility about

2,800 feet downgradient had 9.2 pg/] PCE.

On 10 October 2002, RBDI submitted a preliminary

Feasibility Study/Remedial Options Evaluation Report

in which they recommended installing a soil vapor ex-

traction (SVE) system as an interim remedial meas-

ure.

On 5 February 2003, RBDI submitted the 4th Quar-

ter/Annual 2002 Groundwater Monitoring Report, in

which they reported that groundwater in on-site

monitoring wells contained up to 7,800 ug/L PCE.

17.

18.

19.

20.

App. 68

RBDI excavated about 20 cubic yards of soil from be-

neath the site of the former AGT, which has been

shipped to a hazardous waste incinerator in Nevada.

During the lst quarter of 2003, RBDI installed a SVE

system. The SVE system started operating on 26

March 2003, and has been removing approximately

13 pounds of PCE per day. By the end of April 2003,

the SVE system removed approximately 865 pounds

of PCE.

On 9 April 2003, RBDI submitted a Final Site As-

sessment Report with the results of nine additional

grab groundwater and monitoring well samples which

attempted to define the lateral extent of the PCE

groundwater plume. RBDI discovered a water supply

well at the Rental Service Corporation, 4635 Power

Inn Road, that was not included in the well survey.

They found the well contained 24 ug/l PCE. RBDI also

installed an upgradient monitoring well that con-

tained 19 pg/l PCE. Additional site assessment work

will be required to define the lateral and vertical ex-

tent of the plume and to confirm the presence of up-

gradient pollution.

AUTHORITY - LEGAL REQUIREMENTS

The Regional Board’s Water Quality Control Plan for

the Sacramento River and San Joaquin River Basins

4th Edition (hereafter Basin Plan) designates benefi-

cial uses of the waters of the State, establishes water

quality objectives (WQOs) to protect these uses, and

establishes implementation policies to implement

WQOs. The beneficial uses of the groundwater be-

neath the site are domestic, municipal, industrial,

and agricultural supply.

PCE is a refined hydrocarbon product, is not natu-

rally-occurring, and is a known human carcinogen.

21.

App. 69

Pollution of groundwater with elevated concentra-

tions of PCE impairs the beneficial uses of the

groundwater.

WQOs listed in the Basin Plan include numeric

WQ0Os, e.g., state drinking water maximum contami-

nant levels (MCLs) that are incorporated by refer-

ence, and narrative WQOs, including the narrative

toxicity objective and the narrative tastes and odors

objective for surface and groundwater. Chapter IV of

the Basin Plan contains the Policy for Application of

Water Quality Objectives, which provides that

“lw]here compliance with narrative objectives is re-

quired (i.e., where the objectives are applicable to pro-

tect specified beneficial uses), the- Regional Water

Board will, on a case-by-case basis, adopt numerical

limitations in orders which will implement the narra-

tive objectives.” The numerical limit for the constitu-

ent of concern listed in the following table implements

the Basin Plan WQOs.

Constituent | Limits| WQO Reference

PCE 0.06 yg/l| Narrative | California Public Health

Toxicity | Goal in Drinking Water —

Office of Environmental

Health Hazard Assessment.

ug/l Micrograms per liter

22.

23.

The constituents listed in Finding No. 21 are wastes

as defined in California Water Code Section 13050.

The groundwater exceeds the WQOs for the constitu-

ents listed in Finding No. 21. The exceedance of ap-

plicable WQQOs in the Basin Plan constitutes pollution

as definéd in California Water Code Section 13050.

The Discharger has caused or permitted waste to be

discharged or deposited where it has discharged to

waters of the state and has created, and continues to

24.

25.

App. 70

threaten to create, a condition of pollution or nui-

sance.

The State Water Resources Control Board (hereafter

State Board) has adopted Resolution No. 92-49, the

Policies and Procedures for Investigation and Cleanup

and Abatement of Discharges Under Water Code Sec-

tion 13304. This Policy sets forth the policies and pro-

cedures to be used during an investigation or cleanup

of a polluted site and requires that cleanup levels be

consistent with State Board Resolution 68-16, the

Statement of Policy With Respect to Maintaining High

Quality of Waters in California. Resolution 92-49 and

the Basin Plan establish the cleanup levels to be

achieved. Resolution 92-49 requires the waste to be

cleaned up to background, or if that is not reasonable,

to an alternative level that is the most stringent level

that is economically and technologically feasible in

accordance with Title 23, California Code of Regula-

tions (CCR) Section 2550.4. Any alternative cleanup

level to background must (1) be consistent with the

maximum benefit to the people of the siave; (2) not

unreasonably affect present and anticipated benefi-

cial use of such water, and (3) not result in water

quality less than that prescribed in the Basin Plan

and applicable Water Quality Control Plans and Poli-

cies of the State and Regional Boards.

Chapter IV of the Basin Plan contains the Policy for

Investigation and Cleanup of Contaminated Sites,

which describes the Regional Board’s strategy for

managing contaminated sites. This strategy is based

on Water Code Sections 13000 and 13304, the Title

27, Division 2, Subdivision 1 regulations and State

Water Board Resolution Nos. 68-16 and 92-49. The

strategy includes site investigation, source removal or

containment information required to be submitted for

consideration in establishing cleanup levels, and the

26.

27.

App. 71

bases for establishment of soil and groundwater

cleanup levels.

The State Board adopted the Water Quality Enforce-

ment Policy, which states in part: “At a minimum,

cleanup levels must be sufficiently stringent to fully

support beneficial uses, unless the RWQCB allows a

containment zone. In the interim, and if restoration of

background water quality cannot be achieved, the

CAO should require the discharger(s) to abate the

effects of the discharge. Abatement activities may in-

clude the provision of alternate water supplies.” (En-

forcement Policy, p. 19.)

Section 13304(a) of the California Water Code pro-

vides that:

“Any person who has discharged or discharges waste

into waters of the state in violation of any waste dis-

charge requirements or other order or prohibition is-

sued by a regional board or the state board, or who

has caused or permitted, causes or permits, or threat-

ens to cause or permit any waste to be discharged or

deposited where it is, or probably will be, discharged

into the waters of the state and creates, or threatens

to create, a condition of pollution or nuisance, shall

upon order of the Regional Board clean up the waste

or abate the effects of the waste, or, in the case of

threatened pollution or nuisance, take other neces-

sary remedial action, including but not limited to,

overseeing cleanup and abatement efforts. Upon fail-

ure of any person to comply with the cleanup or

abatement order, the Attorney General, at the request

of the Regional Board, shall petition the superior

court for that county for the issuance of an injunction

requiring the person to comply with the order. In the

suit, the court shall have jurisdiction to grant a pro-

hibitory or mandatory injunction, either preliminary

or permanent, as the facts may warrant.”

App. 72

28. Section’ 13267(b) of the California Water Code pro-

29.

vides that:

“In conducting an investigation specified in subdivi-

sion (a), the regional board may require that any per-

son who has discharged, discharges, or is suspected of

having discharged or discharging, or who proposes to

discharge waste within its region, or any citizen or

domiciliary, or political agency or entity of this state

who has discharged, discharges, or is suspected of

having discharged or discharging, or who proposes to

discharge, waste outside of its region that could affect

the quality of waters within its region shall furnish,

under penalty of perjury, technical or monitoring pro-

gram reports which the regional board requires. The

burden, including costs, of these reports shall bear a

reasonable relationship to the need for the report and

the benefits to be obtained from the reports. In re-

quiring those reports, the regional board shall provide

the person with a written explanation with regard to

the need for the reports, and shall identify the evi-

dence that supports requiring that person to provide

the reports.”

The technical reports required by this Order are

necessary to assure compliance with Section 13304 of

the California Water Code. Existing data and infor-

mation about the site indicates that waste has been

discharged or is discharging at the property, which is

or was owned or operated by the Dischargers named

in this Order.

Section 13304(c\1) of the California Water Code

provides that:

“ .. the person or persons who discharged the waste,

discharges the waste, or threatened to cause or per-

mit the discharge of the waste within the meaning of

subdivision (a), are liable to that government agency

30.

31.

32.

33.

App. 73

to the extent of the reasonable costs actually incurred

in cleaning up the waste, abating the effects of the

waste, supervising cleanup or abatement activities, or

taking other remedial actions...”

If the Discharger fails to comply with this Order, the

Executive Officer may request the Attorney General

to petition the superior court for the issuance of an in-

junction.

If the Discharger intentionally or negligently violates

this Order, then the Discharger may be liable civilly

in a monetary amount provided by the California Wa-

ter Code.

The issuance of this Order is an enforcement action

taken by a regulatory agency and is exempt from the

provisions of the California Environmental Quality

Act (Public Resources Code, Section 21000, et seq.),

pursuant to Title 14 CCR Section 15321(a\(2). The

implementation of this Order is also an action to as-

sure the restoration of the environment and is exempt

from the provisions of the California Environmental

Quality Act (Public Resources Code, Section 21000, et

seq.), in accordance with Title 14 CCR, Sections 15308

and 15330.

Any person affected by this action of the Regional

Board may petition the State Board to review the ac-

tion in accordance with Title 23 CCR Sections 2050-

2068. The regulations may be provided upon request

and are available at www.swrcb.ca.gov. The State

Board must receive the petition within 30 days of the

date of this Order.

REQUIRED ACTIONS

IT IS HEREBY ORDERED that Cleanup and Abatement

Order No. R5-2002-0707 is rescinded, and pursuant to

App. 74

California Water Code Section 13304 and Section 13267,

Goss-Jewett Corporation of Northern California Inc., Steve

Lamanet, Edward Anselmo, and James Kotrous shall:

1. Investigate the discharges of waste, clean up the

waste, and abate the effects of the waste, forthwith,

resulting from activities at the former Goss-Jewett fa-

cility at 4301 Power Inn Road, Sacramento, in con-

formance with State Board Resolution No. 92-49

Policies and Procedures for Investigation and Cleanup

and Abatement of Discharges Under Water Code Sec-

tion 13304 and with the Regional Board’s Water Qual-

ity Control Plan for the Sacramente River and San

Joaquin River Basins (in particular the Policies and

Plans listed within the Control Action Considerations

portion of Chapter IV). “Forthwith” means as soon as

is reasonably possible. Compliance with this require-

ment shall include, but not be limited to, completing

the tasks listed below.

SITE ASSESSMENT

2. Within 30 days of staff concurrence with the 23 May

2003 Workplan for Additional Site Assessment, 4301

Power Inn Road Sacramento, California, implement

the work plan and submit an Additional Site Assess-

ment Report, which contains the information in At-

tachment 3, in accordance with the approved time

schedule, which shall become part of this Order, and

include recommendations and a work plan for addi-

tional investigation, if needed. The work plan for ad-

ditional investigation shall contain information in

Attachment 2, including a sufficient number of sam-

pling points and wells to determine the vertical and

lateral extent of pollutants.

App. 75

FEASIBILITY STUDY AND CLEANUP

By 15 October 2003, submit a Feasibility Study/

Remedial Options Evaluation Report for soil -and

groundwater cleanup. The report shall contain the in-

formation in Attachment 4, which is made part of this

Order. The proposed preferred alternative for

groundwater must meet the range of cleanup levels as

described in the Basin Plan and Resolution No. 92-49.

The Discharger shall attempt to clean up each con-

stituent to background concentrations, or to the level

that is technically and economically feasible and at

least achieves the Water Quality Objectives of the Ba-

sin Plan.

Within 60 days of staff concurrence with the Feasibil-

ity Study/Remedial Options Evaluation Report for

soil and groundwater cleanup, submit a Cleanup

Plan, which describes the preferred alternative(s) for

cleanup and includes a time schedule to conduct the

cleanup activities. The approved time schedule to im-

plement the cleanup shall become a part of this Or-

der.

Within 60 days of Executive Officer approval of the

Cleanup Plan for soil and groundwater, commence

cleanup or installation of the cleanup system. The

Discharger shall notify staff a minimum of 72 hours

prior to beginning field work.

Within 120 days of Executive Officer approval of the

Cleanup Plan, submit a report describing the status

and results of the cleanup work (Cleanup Implemen-

tation Report). The report shall clearly show whether

the installation of any cleanup system is complete,

and if not, give a schedule and proposed work plan for

installation of the remaining cleanup activities, in-

cluding a proposed monitoring plan.

10.

12.

13.

App. 76

GROUNDWATER MONITORING

Conduct monitoring of the existing wells and any

additional wells in accordance with MRP No. R5-

2002-0801 or any revised MRP issued by the Execu-

tive Officer.

GENERAL REQUIREMENTS

Continue to reimburse the Regional Board for reason-

able costs associated with oversight of the cleanup of

this facility. Failure to do se shall be considered a vio-

lation of this Order.

Conduct work only after work plans are concurred

with by Regional Board staff.

Submit all reports with a cover letter from the Dis-

charger.

. Seven days prior to conducting any field work, submit

a Health and Safety Plan that is adequate to ensure

worker and public safety during the field activities in

accordance with CCR Title 8, Section 5192.

As required by the California Business and Profes-

sions Code Sections 6735, 7835, and 7835.1, have all

reports prepared by, or under the supervision of, a

registered professional engineer or geologist and

signed by the registered professional. All technical re-

ports submitted by the Discharger shall include a

statement signed by the authorized representative

certifying under penalty of law that the representa-

tive has examined and is familiar with the report and

that to his knowledge, the report is true, complete,

and accurate.

Upon startup of any remediation system(s), operate

the remediation system(s) continuously, except for pe-

riodic and required maintenance or unpreventable

14.

15.

16.

17.

18.

App. 77

equipment failure. The Discharger shall notify the

Regional Board within 24 hours of any unscheduled

shutdown of the remediation system(s) that lasts

longer than 48 hours. This notification shall include

the cause of the shutdown and the corrective potion

taken (or proposed to be taken) to restart the system.

Any interruptions in the operation of the remediation

system(s), other than for maintenance, emergencies,

equipment failure, or requirements of other applica-

ble regulatory agencies, without prior approval from

Regional Board staff or without notifying the Re-

gional Board within the specified time is a violation of

this Order.

Optimize remedial systems as needed to improve

system efficiency, operating time and/or pollutant re-

moval rates, and report on the effectiveness of the op-

timization in the Annual Report.

Notify Regional Board staff at least three working

days prior to aiiy onsite work, testing, or sampling

that pertains to environmental remediation and in-

vestigation and is not routine monitoring, mainte-

nance, or inspection.

Obtain all local and state permits and access agree-

ments necessary to fulfill the requirements of this

Order prior to beginning the work.

Continue any remediation or monitoring activities

until such time as the Executive Officer determines

that sufficient cleanup has been accomplished to fully

comply with this Order and this Order has been re-

scinded.

If, for any reason, the Discharger is unable to perform

any activity or submit any document in compliance

with the schedule set forth herein; or in compliance

with any work schedule submitted pursuant to this

App. 78

Order and approved by the Executive Officer, the Dis-

charger may request, in writing, an extension of the

time specified. The extension request shall include

justification for the delay. An extension may be

granted by revision of this Order or by a letter from

the Executive Officer.

19. If, in the opinion of the Executive Officer, the Dis-

charger fails to comply with the provisions of this Or-

der, the Executive Officer may refer this matter to the

Attorney General for judicial enforcement or may is-

sue a complaint for administrative civil liability.

This Order is effective upon the date of signature.

/s/ Thomas R. Pinkos

THOMAS R. PINKOS,

Executive Officer

17 June 2003

(Date)

App. 79

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App. 80

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqcb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 ¢ FAX (916) 255-3015

[LOGO] [SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

17 June 2003

ATTACHMENT 2

ITEMS TO BE INCLUDED INA

SITE ASSESSMENT WORK PLAN

The outline below is a minimum requirement for items to

be included and discussed in the text of all site assessment

work plans submitted to the Board. All work plans must

be signed by a registered geologist, certified engineering

geologist, or civil engineer registered or certified by the

State of California. Other pertinent information specific to

each individual investigation also should be included.

I. BACKGROUND

A. Site History

State all operations conducted at the site.

Identify present and historical chemical usage

and handling procedures.

List all chemical spills and their disposition.

Identify all past and present above ground and

under ground tank locations.

Identify tank capacities and other specifications

as necessary.

App. 81

Identify tank contents, past and present.

Submit all records of tests or repairs on fuel lines

and tanks.

Identify locations of maintenance shops, chemi-

cals used in the shops, method of chemical

storage and disposal.

B. Topographic map of site vicinity showing:

All natural and man-made drainage features in-

cluding ditches and surface impoundments,

and the drainages destination;

Utilities, especially storm drain system;

Location of existing monitoring wells, including

those installed by other parties;

Location of above ground and underground stor-

age tanks, other waste-handling facilities,

and/or spill site;

Location of a major body of water relative to the

site;

Location of any nearby private, municipal, or ir-

rigation wells; and

Other major physical and man-made features.

C. Geology/Hydrogeology

Include proposal for logging of boreholes and

characterizing site geology, and identifying

unconfined or confined aquifers and con-

taminant flowpaths.

II. PREVIOUS SITE ASSESSMENTS

Provide a detailed description of any previous site

assessment conducted to determine if there is any

soil or ground water contamination. Include analyti-

cal results of all soil and water samples analyzed,

and water level and floating product measurements.

App. 82

Ill. FIELD INVESTIGATION

A. General

Monitoring well locations and rationale

Survey details

Equipment decontamination procedures

Health and safety plan

Drilling Details

Describe drilling and logging methods

Monitoring Well Design

Casing diameter

Borehole diameter

Depth of surface seal

Well construction materials

Diagram of well construction

Type of well cap

Size of perforations and rationale

Grain size of sand pack and rationale

Thickness and position of bentonite seal and

sand pack

Depth of well, length and position of perforated

interval

Well Development

Method of development to be used

Method of determining when development is

complete

Method of development water disposal

Soil Sampling

Cuttings disposal method

Analyses to be run and methods

Sample collection and preservation method

Intervals at which soil samples are to be col-

lected

Number of soil samples to be analyzed and ra-

tionale

Location of soil samples and rationale

QA/QC procedures

App. 83

F. Well Sampling ‘

Minimum time after development before sam-

pling (48 hours)

Well purging method and amount of purge water

Sample collection and preservation method

QA/QC procedures

G. Water Level Measurement

Elevation reference point at each monitoring well

shall be within 0.01 foot. Ground surface

elevation of each monitoring well shall be

within .01 foot. Method and time of water

leve] measurement shall be specified.

IV. QA/QC PROCEDURES

Specify number of field blanks and duplicates.

V. TIME SCHEDULE FOR PROPOSED WORK

The work plan shall include a time schedule for

implementation of work.

App. 84

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqcb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 ¢ FAX (916) 255-3015

[LOGO] [SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

17 June 2003

ATTACHMENT 3

ITEMS TO BE INCLUDED INA

SITE ASSESSMENT REPORT

The outline below is a minimum requirement for items to

be included and discussed in the text of all site assessment

reports submitted to the Board. Other supporting data to

be included in the report, either within the text of the

report or in appendices, are italicized at the end of each

section. All reports must be signed by a registered geolo-

-gist, certified engineering geologist, or civil engineer

registered or certified by the State of California. Other

pertinent information specific to each individual investiga-

tion also should be included.

I. INTRODUCTION

Summary of past investigations

Purpose of the recent investigation

Scope of the recent investigation

Time period in which the recent investigation was

carried out

Il.

Iil.

App. 85

SUMMARY -

Number of wells drilled

Results of soil and water analyses

Ground water flow direction and gradient

Possible source determination

FIELD INVESTIGATION

Well Construction

Number and depth of wells drilled

Date(s) wells drilled

Description of drilling and construction

Approximate locations relative to facility site(s)

Supporting Date:

A well construction diagram for each well should be

included in the report which shows the following de-

tails:

Total depth drilled

Depth of open hole (same as total depth drilled t

no caving occurs)

Footage of hole collapsed

Length of slotted casing installed

Depth of bottom of casing

Depth to top of sand pack

Thickness of sand pack

Depth to top of bentonite seal

Thickness of bentonite seal

Thickness of concrete grout

Boring diameter

Casing diameter

Casing material

Size of perforations

Number of bags of sand

Well elevation at top of casing

Depth to ground water

Date of water level measurement

Monitoring well number

Date drilled

Location

App. 86

Well Development

Date(s) of development of each well

Method of development

Volume of water purged from well

How well development completion was deter-

mined

Method of effluent disposal

Supporting Date:

Field notes from well development should be in-

_cluded in report.

Water Sampling

Date(s) of sampling

How well was purged

How many we!l volumes purged

Levels of temperature, EC, and pH at stabilization

Sample collection, handling, and preservation

methods

Sample identification

Analytical methods used ~

Soil Sampling

Date(s) of sampling

Sample collection, handling, and preservation

method

Sample identification

Analytical methods used

. FINDINGS OF THE INVESTIGATION

Lithology

Types of sediments encountered

Presence, location, and lateral continuity of any

significant sand, silt, or clay layers

Any visual signs of contamination

Supporting Bate:

Well logs geologic cross-sections should be in-

cluded in the report.

App. 87

Analytical Results of Soil and Ground Water Sampling

Analytical results of each monitoring well should

be summarized

Supporting Data:

Laboratory analytical sheets

Chain-of-custody forms

Water Levels

Static water levels measured when well drilled

Date(s) of water level measurements

Water levels determined prior to sampling

Supporting Date:

Dates of water level measurement, depths to

ground water, and ground water elevations

should be tabulated and included in the report.

Ground Water Gradient and Flow Direction

Ground water gradient and flow direction deter-

mined by the investigation should be discussed

and compared to the regional gradient and flow

direction.

Supporting Date:

A ground water contour map, drawn to scale,

should be provided which shows each well, its

ground water elevation, and lines of equal ground

water elevation. Ground water gradient and flow

direction should be shown on the map. The calcu-

lation of the gradient should be included.

RESULTS OF QA/QC

QA/QC procedures

QC sample identification

Field blank analyses

Comparison of duplication sample results ~

App. 88

VI. CONCLUSIONS AND RECOMMENDATIONS

Note any contamination found

Identify any suspected source of contamination, if

possible

Recommend any further investigative needs

App. 89

California Regional Water Quality Control Board

Central Valley Region

Robert Schneider, Chair

Sacramento Main Office

Internet Address: http://www.swrcb.ca.gov/rwqcb5

3443 Routier Road, Suite A, Sacramento, California 95827-3003

Phone (916) 255-3000 ¢ FAX (916) 255-3015

{LOGO} [SEAL]

Winston H. Hickox Gray Davis

Secretary for Governor

Environmental

Protection

17 June 2003

ATTACHMENT 4

ITEMS TO BE INCLUDED INA

FEASIBILITY STUDY/REMEDIAL

OPTIONS EVALUATION REPORT

The outline below is a minimum requirement for items to

be included and discussed in the text of all feasibility

studies/remedial option evaluation reports submitted to

the Board. Reports must be signed by a registered geolo-

gist, certified engineering geologist, or civil engineer

registered or certified by the state of California.

I. Purpose of Feasibility Study/Remedial Options

Evaluation

Il. Background

A. Description of Facility

B. Site History

1. Years of Operation

2. Chemical Use

3. Chemical Releases (Potential and Docu-

- mented)

I.

Iil.

<

App. 90

C. Geology

1. Regional

2. Local, soil type, lithology, lateral extent of

lithologic units

D. Hydrogeology

1. Aquifers, Aquitards, Perched Aquifers

2. Groundwater flow rates, directions, re-

charge, discharge

3. Groundwater use

4. Extraction and injection wells affect on

groundwater flow

E. Surface Water

1. Losing or gaining streams, ponds etc.

2. Hydraulic connection with aquifers

F. Local Land Use

G. Previous Investigation and Remedial Actions

Nature and Extent of Contamination

A. Contaminants in Soils

1. Types and Concentrations

2. Lateral and Vertical Extent

B. Pollutants in Groundwater

1. Types and Concentrations

2. Lateral and Vertical Extent (including

Perched Zones)

Contaminant Fate and Transport

A. Contaminant Properties

1. Mobility

2. Toxicity

3. Half-life

4. Chemical and biological degradation

B. Contaminant Transport based on Soil and Aq-

uifer Properties

Remedial Action Objectives

Description of Remedial Action Alternatives ~ at a

minimum, 3 alternatives must be considered

A. Alternative that meets background levels

App. 91

B. Alternative that meets water quality objectives

C. Alternative that meets levels between back-

ground and water quality objectives

Evaluation of Remedial Action Alternatives

Overall Protectiveness of Human Health and

the Environment

B. Compliance with Laws and Regulations

C. Long Term Effectiveness and Permanence

D. Reduction of Toxicity, Mobility, and Volume

E. Short Term Effectiveness

F. Implementability

G. Cost

F

State and Community Acceptance

Potential Impacts of Remedial Actions

Estimated Project Schedule for Each Alternative

Preferred Alternative