Petition for Writ of Certiorari — Campbell v. California

Supreme Court, us

FILED

S71996 UUs 199

OFFICE OF THE Crea.

In The

Supreme Court of The United States

October Term 1997

N°.

+

ALBERT CAMPBELL, et al.

Petitioners,

Vv.

STATE OF CALIFORNIA.

Respondent.

4

Petition For A Writ Of Certiorari_

To The United States Court of

Appeals For The Ninth Circuit

4

PETITION FOR WRIT OF CERTIORARI

¢

LOUISE BURDA GILBERT*

DALE C. CAMPBELL

Weintraub, Genshlea & Sproul

400 Capitol Mall, 11th Floor

Sacramento, California 95814

(916) 558-6000

Attorneys for Petitioners

*Counsel of Record

AERTS UIT

APPELLATE ADVANTAGE

4264 N. OAK TRAFFICWAY@KANSAS CITY, MO 641164816-453-2424

QUESTION PRESENTED FOR REVIEW

The question presented by this petition for writ of

certiorarl 1s Whether a mandatory permanent injunction

compelling the expensive remediation of off-site

contamination under a complaint brought under CERCLA can

be based upon summary judgment on a pendant state law

public nuisance claim where the determination of causation

of the off-site contamination is disputed and where the

defendants have not been afforded any discovery.

LIST OF PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

Appellants:

Albert Campbell and Charles Tackman, as the Executors of

the Estate of Victor Muscat

Appellants Attorneys: L. Burda Gilbert

Dale C. Campbell |

Weintraub Genshlea & Sproul

Law Corporation

400 Capitol Mall, 11th Flr.

Sacramento, CA 95814

Appellee: |

State of California

Appellees Attorney: Sandra Goldberg

Attorney General’s Office of

the State of California

Deputy Attorney General

2101 Webster St., 12th Flr.

Oakland, CA 94612-3049

i

TABLE OF CONTENTS

Page

(uention Presented fOr REVIEW . 0. ees

List of Parties to the Proceedings ........ 2.20650 5s 1

ERAS Ns ne Reena ms ances er Pg a ae il]

I a RRO iy egw hw Wo aN 1\

6 Sa ae = Oe bee Pe err eee Pe ee

a ee ee a ts va mw telalw arena ese 2 :

eaiemae Saver ver tr) tis CASE 6 es oe is ee eee os 3

NE HE ey eS Ded yea ew ie ko 7

Reasons for Granting the Writ... 6.0.66 8 een. 7

II de to te aes gS a ka wee 22

Appendices

RE Ceska sae cka seh be ieia cde. A-|]

UI, Tesh eo es ee a cea bone B - 5]

PR ek a key Ke ern C-128

il

TABLE OF AUTHORITIES

CASES

Page

Bellflower v. Pennise,

SAG F270 770 (ie CARs TPT T) ee ea eer en 18

Bradley v. Armstrong Rubber Co..,

(36s 5a toe Ce A CE? kta eee 19

Carter v. Chotiner,

SI ERE G6 UI IOO) ii oa ieee eee ee 13

Johnson v. Hospital Corp. of America,

OS F.3d. 563: (500 Cit. P96) 8 iy oo

McGregor vy. Industrial Excess Landfill, Inc.,

709 F.Supp 1401 (N.D. Ohio 1987)

aff'd, 856 F.2d 39 (6th Cir. 1988) ............. 20

State of California v. Campbell,

L356 FSG 772 Fm Ch. VIB) oe es big hd, &3

Taylor Bay Protective Assoc. v. ADM'R, U.S. E.P.A.,

BSE P20 107 5 OG. Toe iss ee ee ee 17

Town of Orangetown vy. Gorsuch,

718 F.2d 29 (2nd Cir. 1983) |7

Sterling v. Velsicol Chemical Corp

855 F.2d 1188 (6th Cir. 1983) a ae ee

U.S. v. Cannon Engineering Corp.,

720 F.Supp. 1027 (D. Mass. 1989)

affd S99:F 26.79. tit Cit. {POO} i a ea ae

U.S. v. Conservation Chemical Co.,

619 F.Supp 162 (D.C. Mo. 1985) Chass ee

CONSTITUTIONAL AND STATUTORY PROVISIONS

Chapter 103, Subchapter |, Section 106

of the Comprehensive Environmental

Response, Compensation and Liability Act

(CERCLA) 42 U.S.C. § 9606(a) , ae Soe

28 U.S.C.§ 1254 (1993) .. 3

California Civil Code § 3479 ....... fe en a ae

California Civil Code § 3480 ..... Cites eer Sian

MISCELLANEOUS

66 C.J.S. Nuisances § 8(b) (1950)

18

S8 Am. Jur 2p, Nuisance § 24 (1989 1S

RULES

Supreme Court Rule 13.1

PETITION FOR WRIT OF CERTIORARI

lhe executors of the Victor Muscat estate respectfully

pray that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit entered in this proceeding on March 9, 1998, in order

to resolve the important issue presented herein

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit that gives rise to this petition is published.

It is reprinted in Appendix A ("Apdx. A") hereto

[he opinion of the United States District Court for the

Eastern District of California which gave rise to the appeal to

the Ninth Circuit is unpublished. It 1s reprinted in

\ppendix B ("Apdx. B") hereto

STATEMENT OF JURISDICTION

On August 5, 1993, the United States District Court

for the Eastern District of California issued an order granting

summary judgment to plaintiff, the State of California ("the

State"), on its state law claim for public nuisance, in effect

finding that a public nuisance had been "maintained" by

appellants, the executors of the estate of Victor Muscat.

during the instant of time that certain real property held by the

decedent passed through his estate Into a testamentary trust.

In that same order, the District Court granted a mandatory

permanent injunction which incorporated an administrative

order previously issued by the State which, among other

things, ordered the executor appellants to remediate alleged

off-site contamination at the Stanley Park subdivision which

is located approximately one mile away from the estate

property.

On September 7, 1993, defendants filed a notice of

appeal to the United States Court of Appeals for the Ninth

Circuit. The Ninth Circuit affirmed the District Court in an

opinion filed on March 9, 1998. Pursuant to Supreme Court

Rule 13.1, this petition has been filed within 90 days of the

opinion of the Ninth Circuit. This Court has jurisdiction

under 28 U.S.C. section 1254 (1993),

STATUTES INVOLVED IN THIS CASE

Chapter 103, Subchapter I, Section 106, of the

Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA), 42 U.S.C. section 9606(a) (1980)

provides in part:

In addition to any other action taken by a State

or local government, when the President

determines that there may be an imminent and

substantial endangerment to the public health

or welfare or the environment because of an

actual or threatened retease of a hazardous

+

5

substance from a facility, he may require the

Attorney General of the United States to

secure such relief as may be necessary to abate

such danger or threat, and the district court of

the United States in the district in which the

threat occurs shall have jurisdiction to grant

such relief as the public interest and the

equities of the case may require. The

President may also, after notice to the affected

State, take other action under this section

including, but not limited to, issuing such

orders as may be necessary to protect public

health and welfare and the environment.

Cah fornia Civil Code section 3479 provides:

Anything which is injurious to_ health,

including, but not limited to, the illegal sale of

controlled substances, or 1s indecent or

offensive to the senses, or an obstruction to

the free use of property, so as to interfere with

the comfortable enjoyment of life or property,

or unlawfully obstructs the free passage or

use, in the customary manner, of any

navigable lake, or river, bay, stream, canal, or

basin, or any public park, square, street, or

highway, Is a nuisance.

California Civil Code section 3480 provides

A public nuisance is one which affects at the

same time an_ entire community or

neighborhood, or any considerable number of

persons, although the extent of the annoyance

or damage inflicted upon individuals may be

unequal.

STATEMENT OF THE CASE

This is a CERCLA action combined with a pendant

public nuisance claim under state law. The State of California

(the "State”), within only 70 days of the filing of the

complaint, and without any discovery by any party, sought

;

and obtained summary adjudication for a mandatory

permanent injunction on its pendant state law public nuisance

claim. The injunction ordered appellants to comply with a

comprehensive administrative order pre\ iously issued by the

State which required appellants as executors of an estate,

‘sat

among other things, to construct a major water line to a

distant subdivision to remedy the impact of groundwater

contamination at the subdivision located over one mile away

from the property briefly administrated by appellants.

In opposition to the State’s motion, appellants offered

facts and expert opinion indicating that the off-site

contamination at the subdivision was not caused by

contamination from the property administrated by appellants

but rather was caused by contamination created at another

industrial facility, Louisiana Pacific, located midway between

the property administrated by appellants and the subdivision.

The District Court denied appellants any discovery,

denied their request for a continuance, found liability on the

public nuisance claim and issued the comprehensive

mandatory permanent injunction.

The Ninth Circuit affirmed. In doing so, the Ninth

Circuit held inconsistently that the facts and evidence sought

ind Otfered D appellants which would establish anothet

cause of the contamination off-site al Me subdivision, the

Louisiana Pacific Property, were “immaterial to the state law

Louisiana Pacific Property, “mandated” a conclusion that the

property administrated by appellants was the cause ol

contamination at the subdivision

REASONS FOR GRANTING THE WRIT

nderilving action is in federal court because It Is

ye? iT

a CERCLA case brought by the State of California which

seeks cost recovery and other relief related to soil and

vroundwater contamination caused by the alleged imprope!

disposal of trichloroethylene ("TCE") at a manufacturing

facility known as Victor Industries. The State of California

(the "State") appended onto its federal CERCLA complaint a

state law tort claim fer public nuisance by which the State

sought injunctive relief. Prior to filing the complaint, the

State had issued an administrative order directing appellants

not only to remediate the soil and groundwater contamination

at Victor Industries, but also to remediate TCE contaminated

groundwater beneath a residential development known as

Stanley Park, located more than one mile away from Victor

Industries.

Only 70 days after filing the complaint and before

appellants had filed an answer or conducted any discovery,

the State filed a motion for summary adjudication on the state

law tort claim of public nuisance asking the District Court to

adopt verbatim the previously issued administrative order as

a mandatory permanent injunction. The State’s motion for

summary adjudication also requested a finding that

appellant's were liable as Responsible Parties under

CERCLA, but did not request judgment imposing a CERCLA

injunction or for a cost recovery determination.

Due to the short period of time between the filing of

the complaint and the motion for summary judgment,

defendants were unable to take any discovery and were forced

to defend the comprehensive summary judgment motion

based only upon limited existing information available from

public sources and the opinion of their expert, Jay Lucas.

Mr. Lucas had previously been employed by the California

Department of Health Services, Toxic Substances Control]

Division (predecessor to the Department of Toxic Substances

Control) and was at the time of the motion employed with

Brown & Caldwell Consultants who were investigating the

Victor Industries site for the Victor Muscat Trust

Significantly, Mr. Lucas had not done any off-site

investigation and could rely only upon incomplete data and

test results and reports in the public record.

Notwithstanding the limited time and the appellants’

inability to conduct any discovery whatsoever in the action,

appellants submitted credible and persuasive expert testimony

and opinion opposing the State’s motion for summary

adjudication. Appellants’ expert refuted the State’s proffered

facts and opinion that the contamination at Victor Industries

{also known as the 20th Street Property] was the source, and

therefore the legal cause, of the contamination one mile away

at Stanley Park. (Apdx. C.) Appellants’ expert offered facts

and opined that the likely cause of the contamination at

Stanley Park was another industrial facility, Louisiana Pacific,

which was midpoint between Victor Industries and Stanley

Park. (See Apdx. C, generally, and pages C - 137-8, 151,

157, 161 specifically.) Appellants also moved the District

Court for a continuance to allow an opportunity to gather

additional evidence to further support their expert's opinion.

In response, the State filed rebuttal opinions which challenged

LO

so eeiceeeeniiieaiiitieiieiiaaliaaiaiihiiaiiiaaiiil

challenged the reasonable conclusions and opinions submitted

by appellants’ expert. The State's rebuttal highlighted the fact

that disputed issues of fact existed concerning the source, or

cause, of the contamination at Stanley Park.

The District Court denied the request for a

continuance, granted the State's motion for summary

adjudication, and adopted verbatim the previously issued

administrative order as a mandatory permanent injunction on

the nuisance claim.

Lucas evidence does create a dispute - or, in the words of the

summary adjudication statute, an ‘issue’ - between the parties:

Lucas's evidence suggests that the Louisiana Pacific Property

contaminated the water at Stanley Park "State of

}

California v. Campbell, 138 F..

772, 781 (9th Cir. 1998)

(Apdx. A.) The Ninth Circuit then went on to erroneously

hold that the facts and opinion submitted by appellants’ expert

did not raise genuine issues of material fact because "[t}he

cause of the trichloroethylene contamination at Stanley Park

and other off-site areas is therefore immaterial to California’s

state law claims." State of California v. Campbell, 138 F.3d

772, 781 (9th Cir. 1998). (Apdx. A.) The Ninth Circuit also

reiterated its opinion that causation of the Stanley Park

contamination was immaterial to the nuisance claim when it

upheld the District Court’s denial of appellants’ request for a

continuance to allow additional time to obtain corroborative

evidence that the Stanley Park contamination originated from

the Louisiana Pacific facility:

The undisputed evidence that

trichloroethylene contaminated the soil and

groundwater at the 20th Street Property \s

sufficient to establish the defendants’ liability

under Califorma law. To succeed on its

summary adjudication motion, California need

not prove that property other than the 20th

Street Property suffered from contamination.

Under California law, the pollution at the 20th

Street Property constitutes a public nuisance

and violates California's environmental laws.

See Carter v. Chotiner, 210 Cal. 288, 291,

291 P. 577 (1930) (polluted water 1s a public

nuisance); Cal. Health & Safety Code §

25§358.3 (W hen a release or threatened release

of hazardous substances endangers — the

environment, those responsible may have to

take remedial action). Therefore, any

additional data about contamination at

property other than the 20th Street Property 1s

not relevant to oppose the summary

adjudication motion.

7

State of California v. Campbell, 138 F.3d 772, 781 (9th Cir.

1998). (Apdx. A.) .

The Ninth Circuit then issued a further internally

inconsistent holding by denying appellants’ challenge to the

scope of the injunction. The glaring internal inconsistency 1s

that in order to uphold the broad scope of the injunction

requiring expensive remediation off-site at Stanley Park, the

Ninth Circuit had to contrive a way to reject appellants’

~

4

expert's declaration which the Ninth Circuit had earlier

acknowledged did create a disputed "issue." The Ninth

Circuit accomplished this by finding that "no reasonable juror

could conclude that the Louisiana Pacific Property, rather than

the 20th Street Property [Victor Industries|, was the source of

the contamination at Stanley Park." State of

California v. Campbell, 138 F.3d 772, 781 (9th Cir. 1998).

(Apdx. A.) The basis for this controverted "finding" rests on

the fact that at this very early stage of the litigation, and

without any discovery whatsoever, there were no undisputed

facts presented by appellants to show that Louisiana Pacific

disposed of TCE on its property to support the appellants'

expert’s opinion that Louisiana Pacific was the source of the

contamination at Stanley Park. That evidence, of course. was

the very evidence appellants sought to obtain in moving for a

continuance to conduct discovery, the discovery which the

Ninth Circuit earlier in its opinion held was "immaterial" to

14

the State claims and did not warrant a continuance because

the evidence sought was not calculated to obtain “facts

essential” to resist the summary adjudication. If these facts

are not “essential” to resist summary adjudication, then the

absence of those very facts can not be used to reject the

opinion of an otherwise qualified expert that the

contamination at Stanley Park originated from the Louisiana

Pacific Property.

The error of this reasoning 1s made more obvious by

evidence submitted by the State's own expert which indicated

that contamination had nor occurred on the Victor Industries

Property which evidence corroborated appellants’ expert's

conclusion that the Louisiana Pacific Property was the source

of the contamination in Stanley Park Attached to the

Declaration of Gene Riddle, submitted by the State in support

of its motion, was a report made by Environmental Strategies

Corporation which was prepared for the California

PIS Rn eT ne ee ee

Department of Health Services, Toxic Substances Contro]

Division, Region |, in 1990. In that report. which assesses the

groundwater contamination at the Victor Industries Property,

Environmental Strategies Corporation concludes:

Based on the results of the field

Investigation, ESC concludes that there is no

significant: contamination in the shallow

unconfined groundwater or soils between

depths of 5 feet and 35 feet at the former

Victor Industries 20th Street site

ESC concludes that no further

groundwater contamination should result -

from the infiltration of soil leachate to the

water table

The results of this investigation

contradict. the earlier soil eas survey

performed by WESTON, which showed TCE

and PCE concentrations of up to. several

hundred ppb in the soil vapo: phase

If significant quantities of volatile

organic Compounds were dumped at the site as

alleged by former employees. one would

lo

expect to find relatively high contaminant

levels in the soils or groundwater. Since high

levels were nor detected during ES¢

investigation, several explanations can be

proposed

- j 1 |

A final explanation could be that

SIGAIICANTE Guantilics Of Solvents were not

| / ’ ) rly “)% , ai ‘

dumped at the 20th Street sit (emphasis

added)

Ihe Ninth Circuit's) published opinion holds

essentially that “causation” is not “essential” to impose

mandatory injunction to remedy an off-site public nuisance

[his opinion conflicts with every other opinion which ha

addressed the issue see, @&.2., Lown of Orangetown \

Gorsuch, 718 F.2d 29 (2nd Cir. 1983) (requiring an

unequivocal finding of causation essential to a public

nuisance claim); Javlor Bay Protective Assoc. v. ADM'R. US

Ik P.A., 884 F.2d 1073 (Sth Cir. 1989) ("| T]he maintenance o

the nuisance must be the natural and proximate cause of the

injury. [citations omitted]. Proximate cause is 'a cause which,

in a natural and continuous sequence, produces damage and

without which the damage would not have occurred... "":

Bellflower v. Pennise, 548 F.2d 776 (8th Cir. 1977) (".. . in

order to constitute an actionable nuisance, not only must a

wrongful act of the defendant be shown but also the

maintenance of the nuisance must be the natural and

proximate cause of the injury.") (citing 66 C.J.S. Nuisances §

8(b) (1950)); Johnson v. Hospital Corp. of America, 95 F.3d

383 (5th Cir. 1996) ("Appellants have not produced any

evidence demonstrating a causal link between their alleged

damages and the chemicals at the disposal sites. It is the well-

accepted general rule that a defendant may not be held liable

for the consequences of an alleged nuisance absent a showing

that he had in fact caused the conditions complained of.")

(citing 58 Am. Jur 2p, Nuisance § 24 (1989); Sterling v.

18

Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988)

(discussing the sufficiency of evidence to prove the requisite

causation between a disposal of toxic chemicals and plaintiff's

injuries); Bradley v. Armstrong Rubber Co., 130 F.3d 1608

(5th Cir. 1997) (summary judgment for defendants discussing

plaintiff's failure to prove causation).

It is elementary that if the off-site contamination at

Stanley Park was caused by a release of contaminants from

the Louisiana Pacific Property, and not by a release at Victor

Industries Property, then appellants have no duty to remediate

the off-site nuisance and indeed, no ability to abate it by

action taken on the Victor Industries Property.

If allowed to stand, the Ninth Circuit’s opinion will

allow these plaintiffs and others nationwide to circumvent the

federal statutory scheme for addressing environmental

contamination by invoking the jurisdiction of the federal court

under CERCLA and then proceeding on pendant state law

19

claims of public nuisance to obtain relief not available to

them under CERCLA.

Congress has specifically declined to provide the

states with a nght to injunctive relief under CERCLA.

Rather, section 9606 of CERCLA expressly authorizes only

the United States to seek injunctive relief to abate an actual or

threatened release of a hazardous substance from a facility.

The legislative history shows that Congress specifically

declined to provide the States with standing to seek injunctive

relief under CERCLA. An early Senate version of CERCLA

empowered either the United States "or the State” to seek

injunctive relief. That was altered through compromise such

that standing was limited to the United States alone.

U.S. v. Cannon Engineering Corp., 720 F.Supp. 1027, 1052

(D. Mass. 1989), affd. 899 F.2d 79 (Ist Cir. 1990);

McGregor vv. Industrial Excess Landfill, _In

709 F.Supp 1401, 1409 (N.D. Ohio 1987). aff'd, 856 F.2d 39

20

(Oth Cir. 1988): and U.S. v. Conservation Chemical ¢

619 F.Supp 162, 231-232 (D.C. Mo. 1985)

More importantly, the Ninth Circuit's published

opinion, if allowed to stand, will permit plaintiffs natlonwide

to seek to obtain onerous and expensive mandatory clean-up

injunctions and to accomplish this without having to establish

the requisite causal connection between the nuisance and the

harm to be remedied. Requiring such a causal connection ts

a principle fundamental to American jurisprudence.

Certiorari 1s appropriate here

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorar! should be granted.

Respectfully submitted,

L. Burda Gilbert

WEINTRAUB GENSHLEA & SPROUL

Law Corporation

400 Capitol Mall, 11th Floor

Sacramento, California 95814

(916) 558-6000

9,

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA,

on behalf of the California

Department of Toxic

Substances Control,

Plaintiff-Appellee,

\

ALBERT CAMPBELL, No. 93-16754

individually and as Trustee of D.C. No

the Victor Muscat Testamentary CV-93-00604 GEB

Trusts and Executor of the OPINION

Estate of Victor Muscat;

CHARLES TACKMAN.

individually and as Trustee of the

Victor Muscat Testamentary

Trusts and Executor of the Estate of

Victor Muscat,

Defendants-Appellants,

and

WESTERN RESOURCES, INC...

Receiver of the Victor Muscat

Testamentary Trusts,

/ntervening Defendant.

Appeal from the United States District Court

for the Eastern District of California

Apdx A - |

Garland E. Burrell, District Judge. Presiding

Argued and Submitted

December 9, 1997--Pasadena, California

Filed March 9, 1998

Before: James R. Browning, Harry Pregerson, and

Michael Daly Hawkins, Circuit Judges,

Apdx A - 2

Opinion by Judge Harry Pregerson

SUMMARY

Civil Litigation and Procedure/Appeals-Jurisdiction

The court of appeals dismissed an appeal in part. The

court held that a defendant may appeal from an order granting

summary adjudication to the detendant on state nuisance and

environmental claims when it is part of an order granting. an

injunction

For almost 20 years, workers at Victor Industries, a

manufacturer of metal products in Chico, California, used

trichloroethylene, a carcinogen, as a solvent and disposed ot

it by dumping it on the ground. The California Department of

Toxic Substances tested soil and groundwater and found that

trichloroethylene had contaminated the groundwater and

municipal and private wells located downgradient from

Victor's property. Appellee State of California filed a federal

action to require appellants executors of the estate of Victor

{

\pdx Re. 5

Muscat, Victor's owners and the receiver appointed for his

trust assets, to clean up the contamination and to recover the

money that the State spent investigating the contamination.

The district court granted California's motion for

summary adjudication of its claims under the Comprehensive

Environmental Response, Compensation, and Liability Act

(CERCLA) and state nuisance and environmental laws. As a

remedy for the violations of California law, the court issued an

injunction that required defendants to abate the nuisance

caused by the contamination. The trustees appealed.

[1JAs a general rule, federal courts of appeals have

jurisdiction only over final decisions of the district courts. A

final decision is one that ends the litigation on the merits and

leaves nothing for the court to do but to execute the judgment.

An order that determines liability but not damages is not a

final decision, nor is an order that adjudicates less than all

claims.

Apdx A -4

[2] The district court's CERCLA order determined that

the defendants were liable for California's investigation costs

but did not determine what those costs were. The state-law

order resolved the nuisance and environmental claims, but left

other claims unresolved. Unless the summary adjudication

orders fell under an exception to the final judgment rule, the

court of appeals had no jurisdiction to hear them

[3]The small category of decisions that may be

considered "final" even though they do not end the litigation

includes only decisions that are conclusive, that resolve

important questions separate from the merits, and that are

effectively unreviewable on appeal from the final judgment in

the underlying action. [4] The district court's summary

adjudication orders were not among this small category of

appealable collateral orders because they were not effectively

unreviewable after final judgment

[S]In addition, the courts of appeals can hear appeals

Apdx A - 5

from interlocutory orders granting, modifying, or dissolving

injunctions. [6]The district court's injunction concerned the

defendanis' liability under state nuisance and environmental

laws, not their liability under CERCLA. [7]The court of

appeals therefore had jurisdiction over the interlocutory order

finding the defendants liable under state law because it was

part of an order granting an injunction, but the CERCLA

order fell under none of the statutory provisions that allowed

for immediate interlocutory appeal.

{8]Furthermore, given criticism of pendent appellate

jurisdiction, and the consequent narrow construction of the

exception for "inextricably intertwined" rulings, the CERCLA

order was not inextricably intertwined with the state law

injunction

[9] The court of appeals lacked jurisdiction to hear the

CERCLA portion of the appeal.

{10]The defendants argued that the district court

Apdx A - 6

ae

should not have adjudicated their liability under state law

without giving them more time to conduct discovery. [11]

Litigants must submit affidavits setting forth the particular

facts expected from further discovery. [12]The record

showed that the defendants only implicitly moved for more

time to conduct discovery, an adequate ground for affirmance

of the district court's denial of their request for more

discov ery

[131In any event, denial of an application for

additional discovery is proper when it is clear that the

evidence sought was almost certainly nonexistent or was the

object of pure speculation. [14]Given uncontroverted facts

regarding trichloroethylene dumping and contamination, the

evidence sought, concerning another source of groundwater

contamination, was almost certainly nonexistent or was the

object of pure speculation

[15] Moreover, a party seeking a continuance for

Apdx A - 7

additional discovery must show that it lacks the facts essential

to resist the summary judgment motion. [16]The undisputed

evidence that trichloroethylene contaminated the soil and

groundwater was sufficient to establish liability under

California law Any additional data about contamination at

other property was not relevant to oppose the summary

adjudication motion. [17]The district court did not abuse its

discretion when it denied defendants’ request to stay summary

adjudication and continue discovery

[18]The defendants also argued that there were

genuine issues of material fact about who polluted the

groundwater at locations downgradient from company

property. The relevant inquiry in a summary adjudication

motion is threefold’ is there a genuine issue, 1s that issue

about a material fact, and is the moving party entitled to

judgment as a matter of law

[19]An issue of fact is genuine if the evidence is such

Apdx A -8

that a reasonable jury could return a verdict for the nonmoving

party. [20|The testimony of the defendants’ expert witness

(21] suggested that Louisiana Pacific Property was the source

of the trichloroethylene contamination. [22]However, given

the undisputed facts of trichloroethylene use and

contamination on Victor property, the only reasonable

conclusion to be drawn from the expert's evidence was that

the trichlorocthylene must have flowed from downgradient

where it accumulated at the edge of the Louisiana Pacific

Property. Accordingly, there was no genuine dispute about

which property polluted the groundwater!

|23|The defendants failed to show that the parties

disputed material facts The facts pertaining to offsite

pollution were not material to California's summary

adjudication motion. [24]To state a claim under California

law. it was enough that the water itself was contaminated.

California did not have to prove that trichloroethylene

Apdx A - 9

migrated to other areas.

[25]Unlike CERCLA, California law imposes liability

on any person who maintains a nuisance-regardless of whether

that person has an interest in the land. As executors of

Muscat's estate and trustees over Muscat's trusts, the

appellants maintained a nuisance by administering property

where hazardous chemicals were polluting the water. They

were therefore liable under California law regardless of

whether they were owners or operators under CERCLA.

[26] The injunction that required the appellants to abate

the public nuisance was not overbroad. [27]Furthermore, the

district court independently reviewed the department's cleanup

order, from which the injunction was derived, and concluded

its provisions were necessary to ensure public safety.

[28]Ordinarily, an injunction should not incorporate

another document by reference. [29]By incorporating the

order into the injunction, the district court did not err. The

Apdx A - 10

i

defendants received adequate notice that they could face

contempt if they violated because it was physically attached to

the injunction

COUNSEL

Sandra Goldberg, Deputy Attorney General, Oakland,

California, for plaintiff-appellee, State of California

Department of Toxic Substances Control

Dale C. Campbell, L. Burda Gilbert, Weintraub, Genshlea &

Sproul, Sacramento, California, for defendants-appellants

Albert Campbell and Charles Tackman, as Executors of the

Estate of Victor Muscat

Thomas H. Clarke, Jr., Susan H. Handelman. Ropers, Majeski,

John & Bentley, Redwood City, California, for intervenor

Western Resources. Inc

OPINION

PREGERSON, Circuit Judge

For almost twenty years, Victor Industries

Apdx A- 11

contaminated groundwater by dumping hazardous chemicals

onto the ground at its manufacturing plant. The State of

California sued the defendants under state environmental and

nuisance law to require them to clean up the contaminated

water. California also sought reimbursement from the

defendants under the Comprehensive Environmental

Response, Compensation, and Liability Act ("CERCLA"), 42

U.S.C § 9601, et seq., for the money that California spent

investigating the contamination.

Two of the defendants-Albert Campbell and Charles

Tackman-appeal the district court's orders finding the

defendants name under CERCLA and California law

Campbell and Tackman also appeal the district court's

injunction requiring the defendants to clean up the

contaminated water

Because we have no jurisdiction to review the district

court's interlocutory order finding the defendants liable under

Apdx A - 12

CERCLA, we dismiss that portion of the appeal. We have

junsdiction over the remainder of the appeal under 28 U.S.C

§ 1292(a)(1), and we affirm

BACKGROUND

Victor Muscat owned Victor Industries until his death

in 1974. From 1958 to 1984, Victor Industries manufactured

metal tubes and cans at a plant on 20th Street in Chico,

California ("the 20th Street Property"). For almost twenty

years, workers at the plant used trichlorocthylene as a solvent

and disposed of it by dumping it on the ground

Trichloroethylene is a hazardous substance that causes cancer

During an inspection, the California Department of

Toxic Substances Control ("the Department") noticed

hazardous substances stored in a manner that suggested that

the hazardous substances were being dumped at the 20th

Street Property. The Department took several soil samples

An analysis of the samples indicated the presence of

Apdx A - 13

‘An analysis of the samples indicated the presence of

trichloroethylene and other hazardous chemicals in the soil

Subsequent testing indicated that high concentrations

of trichloroethylene and other hazardous substances were

present not only in the soil but also in the groundwater at the

20th Street Property. The Department tested the groundwater

in municipal and private wells that are located downgradient

from the 20th Street Property and determined that

trichloroethylene had contaminated that groundwater as well.

One of the polluted wells was located at Stanley Park, a

housing subdivision located about a mile downgradient from

the 20th Street Property.

On behalf of the Department, the State of California

filled a complaint in federal court to require the defendants to

clean up the contamination and to recover the money that the

Department had spent investigating the contamination. The

complaint named as defendants the executors of Muscat's

Apdx A - 14

estate and the trustees of Muscat's testamentary trusts. |

California moved for summary adjudication of three of

its six claims: a federal environmental claim under CERCLA.

42 U.S.C. § 9601, et seq.; a state public nuisance claim under

California's common law; and a state environmental claim

under California's Hazardous Substance Account Act, Cal

Health & Safety Code § 25300 et seq. Specifically, California

argued that the defendants were liable as a matter of law for

violating both CERCLA and the state laws. As a remedy for

the state law violations, California requested a permanent

injunction requiring the defendants to abate the public

nuisance that the tnchloroethylene contamination had caused

In opposition to California's motion, the defendants

‘After California filed this lawsuit. the Connecticut Superior

Court. which oversaw Muscat's estate. removed the trustees and

placed the trust assets into receivership. The federal court in

California then substituted Western Resources. Inc., the appointed

receiver. as a defendant in place of the trustees. Western Resources

intervened in this appeal and filed a brief in support of the appellants’

arguments

Apdx A - 15

—

argued that the trichloroethylene detected at Stanley Park and

the other off-site locations did not come from the 20th Street

Property. The culprit, the defendants argued, was property

owned by Louisiana Pacific ("the Louisiana Pacific Property"),

which is located about a half-mile downgradient from the 20th

Street Property and about a half-mile upgradient from Stanley

Park.

The district court granted California's motion in its

entirety, and the defendants appealed.”

STANDARDS OF REVIEW

We review grants of summary adjudication motions de

novo. Amdahl Corp. v. Profit Freight Systems, Inc., 65 F 3d

144, 146 (9th Cir. 1995). The district court's ability to grant

an injunction is reviewed de novo, but the district court's

exercise of that power is reviewed for abuse of discretion.

“Western Resources appealed separately. Its appeal is

therefore discussed in a Separate opinion, which is found at

California v. Campbell, ___ F.3d (9th Cir. 1998).

Apdx A - 16

‘

Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d

1099, 1102 (9th Cir. 1994)

DISCUSSION

Under California law, those responsible for polluting

groundwater can be held liable for creating a public nuisance

and for violating California's environmental laws. See Carter

v. Chotiner, 210 Cal. 288, 291 (1930) (polluted water is a

public nuisance); Se/ma Pressure Treating Co., Inc. v. Osmose

Wood Preserving Co., 221 Cal. App. 3d 1601, 1616-20

(1990) (any person who creates or helps create and maintain

a nuisance is liable for its abatement and damages), Cal

Health & Safety Code § 25358.3 (those responsible for

endangering the public's health or safety or the environment

may have to take remedial action to protect the public and the

environment). Under CERCLA, any person who owned or

operated a facility when hazardous substances were disposed

there is liable for the costs that the government incurs when it

Apdx A- 17

a

responds to the contamination. 42 U.S.C. § 9607(a) ("any

person who at the time of disposal of any hazardous substance

owned or operated any facility at which such hazardous

substances were disposed of shall be liable for. . . all

costs of removal and remedial action incurred by the United

States Government or a State. ___.")

The district court found that the defendants were liable

under both California law and CERCLA and granted

California's motion for summary adjudication. As a remedy

for the defendants’ violations of California law. the district

court issued an injunction that requires the defendants to

abate the nuisance caused by the trichloroethylene

contamination

fe The defendants argue that the summary adjudication

was improper because they did not have enough time to

discover facts that were necessary to oppose the motion and

because California failed to meet the summary adjudication

Apdx A - 18

standards. The defendants also argue that the injunction was

improper because it is too broad and because it unlawfully

incorporates a document by reference

[| Jurisdiction

[1]Before we address these issues on the merits, we

must determine that we have jurisdiction to do so. As a

general rule, federal courts of appeal have jurisdiction only

over final decisions of the district courts. See 28 U.S.C. §

1291 (granting federal appellate courts "jurisdiction of appeals

from all final decisions of the district courts"). A final decision

is one that "ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment." (at/in v.

United States, 324 U.S. 229, 233 (1945) (citing St. Louis 1.4

& S.A. v. Southern Express Co., 108 U.S. 24, 28 (1883))

Accordingly, an order that determines liability but not

damages ts not a final decision, /n re Frontier Properties, Inc..,

979 F.2d 1358. 1362 (9th Cir. 1992). nor is an order that

Apdx A - 19

adjudicates less than all claims a final decision, Chacon v.

Babcock, 640 F.2d 221, 222 (9th Cir. 1981)

[2] The orders that the appellants appeal are precisely

such orders. The CERCLA order determined that the

defendants were liable under CERCLA for the costs that

California incurred while investigating the contamination at

the 20th Street Property, but it did not determine what those

costs were. The state-law order resolved the nuisance and

endangerment-to-the environment claims, but left several

other claims unresolved. Thus, unless the summary

adjudication orders fall under an exception to the final

judgment rule. we have no jurisdiction to bear them.

A. Collateral Order Doctrine

[3] The Supreme Court has recognized that "§ 129]

permits appeals not only from a final decision by which a

district court disassociates itself from a case, but also from a

small category of decisions that, although they do not end the

Apdx A - 20

litigation, must nonetheless be considered 'final’." Swint v.

Chambers County Comm'n, 514 U.S. 35, 42 (1995) (citing

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541. 546

(1949)). This small category of decisions “includes only

decisions that are conclusive, that resolve important questions

separate from the merits, and that are effectively unreviewable

on appeal from the final judgment in the underlying action."

Id. (citing Cohen, 337 U.S. at 546)

[4] The summary adjudication orders establishing the

defendants: CERCLA and state law liability are not among this

small category of decisions because they do not satisfy the last

factor of the test: they are not effectively unreviewable after

final judgment. As the Supreme Court explained in Swint, “an

erroneous ruling on liability may be reviewed effectively on

appeal from final judgment." Swint, 514 U.S. at 43

Accordingly, the orders granting California's summary

adjudication motions are not appealable collateral orders

Apdx A - 21

B. Statutorily-Appealable Interlocutory Orders

[5]In addition to final decisions and the small category

of cases that must be considered final under the collateral

order doctrine, federal appellate courts have jurisdiction over

four types of interlocutory decisions. The courts of appeal can

bear appeals from interlocutory orders granting, modifying, or

dissolving injunctions; interlocutory orders appointing

receivers or refusing orders to wind up receiverships,

interlocutory orders determining the nghts and liabilities of the

parties to admiralty cases, and interlocutory orders that the

district court certifies for immediate appeal because the orders

are pivotal and debatable. See 28 U.S.C. § 1292.

The district court did not certify the CERCLA order

or the state law order for immediate appeal, and neither order

concerns receiverships or admiralty. Thus, to fall under the

Statutory provisions allowing immediate appeal of

interlocutory orders, the summary adjudication orders must be

Apdx A - 22

BEA OS Battlin cdn Po 4

orders "granting, continuing, modifying, refusing or dissolving

injunctions." 28 U.S.C. § 1292(a)(1)

(6]After finding the defendants liable for creating a

public nuisance and violating California's en\ ironmental laws.

the district court issued an injunction requiring the defendants

to abate the public nuisance that the trichloroethylene

contamination had caused. Although the district court found

that the defendants were also liable for California's

investigation costs under CERCLA, it did not issue an

injunction that required the defendants to reimburse California

Thus, the injunction that the court issued concerned the

defendants’ liability under state nuisance and environmental

laws, not their liability under CERCLA

[7]We therefore have jurisdiction over the

interlocutory order finding the defendants liable under state

law because it is part of an order granting an injunction. The

interlocutory order finding the defendants liable under

Apdx A - 23

CERCLA, on the other hand, is not part of the order granting

the injunction. The CERCLA order therefore falls under none

of the statutory provisions that allow for immediate

interlocutory appeal

C. Pendent Appellate Jurisdiction

The defendants argue that the CERCLA order is

nevertheless appealable because it is "inextricably intertwined"

with the injunction They invoke the doctrine of pendent

appellate jurisdiction that the Supreme Court alluded to in

Swint v. Chambers County Commission, 514 US. 35 (1995)

Swint was a civil rights case against the Chambers

County Commission and three police officers. The police

officers argued that they were entitled to qualified immunity,

and the Commission argued that it was not liable because the

sheriff who authorized the alleged civil rights violations was

not the county's final policy-maker. The district court

summarily adjudicated both parties' defenses and found that

Apdx A - 24

neither party was entitled to judgment

Both parties immediately appealed even though the

district court had not issued a final judgment. The Eleventh

Circuit held that it had jurisdiction over the police officers’

appeal under Mitchell v. Forsyth, 472 U.S. 511, 530 (1985),

which held that an order denying qualified immunity is

immediately appealable. The Eleventh Circuit then held that

it had pendent appellate jurisdiction over the Commission's

claims even though the Commission's claims were not

independently appealable

The case then came before the Supreme Court. The

Court agreed that the Eleventh Circuit had jurisdiction over

the police officers’ appeal, but held that "the Circuit Court did

not thereby gain authority to review the denial of the

Chambers County Commission's motion for summary

judgment.” Swit, 514 U.S. at 38. In other words, "there [was

no| ‘pendent party’ appellate authority to take up the

Apdx A - 25

Commission's case." Id -

In so holding, the Court noted that the federal courts

of appeals have endorsed the doctrine of pendent jurisdiction.

ld. at 44 n2. The Court also acknowledged the parties’

argument that § 1291's final decision requirement is designed

to prevent parties from interrupting litigation by pursuing

piecemeal appeals and that once litigation has already been

interrupted by an authorized pretrial appeal, there is no cause

to resist the economy that pendent jurisdiction promotes. /d

at 45

But the Court stated that. "[t]hese arguments drift

away from the statutory instructions Congress has given to

control the timing of appellate proceedings." Jd If courts of

appeals had discretion to hear "pendent" appeals, then

Congress’ statutory arrangement would be undermined. /d. at

45-48 (discussing 28 U.S.C. § 1292. which lists certain

interlocutory appeals that are immediately appealable, and §

Apdx A - 26

2072(c) of the Rules Enabling Act. 28 USC § 2071 et seq..

which grants the Supreme Court rulemaking authority to

proscribe which interlocutory orders are appealable)

Despite this strong language against pendent appellate

jurisdiction, the Court left open a loophole for "inextricably

intertwined" rulings. The Court stated that it “need not

definitively or preemptively settle here whether or when it may

be proper for a court of appeals with jurisdiction over one

ruling to review. conjunctively, related rulings that are not

themselves independently appealable." /d. at 50-51. The

Court noted that the parties did "not contend that the District

Court's decision to deny the Chambers County Commission's

summary judgment motion was inextricably intertwined with

that court's decision to deny the individual defendants’

qualified immunity motions." /d. at 51. Nor. the Court noted,

did the parties contend that "review of the former decision

Was necessary to ensure meaningful review of the latter." Jd

Apdx A - 27

[8]Given the Supreme Court's criticism of pendent

appellate jurisdiction, the Court's "inextricably intertwined"

exception should be narrowly construed. Under such a

construction, the CERCLA order is not inextricably

intertwined with the injunction. As explained above, the

district court granted the injunction to abate the public

nuisance that was caused by the trichloroethylene

contamination at the 20th Street Property. We can easily

address the defendants’ state law liability without discussing

the defendants’ CERCLA liability. Just because the same facts

are involved in both issues does not make the two issues

inextricably intertwined. See Swint, 514 U.S. 35: United

States v. Stanley, 483 U.S. 669, 676-78 (1987); Abney v.

United States, 431 U.S. 651, 662-63 (1977) (all holding that

appellate court with interlocutory jurisdiction over one ruling

lacked jurisdiction to review factually-related rulings that were

not independently appealable).

Apdx A - 28

|

— s

—-

[9]In sum, the interlocutory CERCLA order does not

tall under the collateral order doctrine, the interlocutory-

appeal statute, or the "inextricably intertwined" doctrine. We

therefore lack jurisdiction to hear the CERCLA portion of this

appeal. Accordingly, we will now turn to the portions of the

appeal over which we do have jurisdiction: the appeal from the

district court's order finding the defendants liable under state

law and the appeal from the district court's order issuing an

injunction against the defeindants

Il. Summary Adjudication of the Defendants’

Liability Under State Law

A. Sufficient Time for Discovery

[10]The defendants first argue that the district court

should not have adjudicated their liability under state law

without giving them more time to conduct discovery. They

rely on Rule 56(f) of the Federal Rules of Civil Procedure.

vhich states as follows

Apdx A - 29

Should it appear from the affidavits of a party

opposing the motion that the party cannot for

reasons stated present by affidavit facts essential

to justify the party's opposition, the court may

refuse the application for judgment or may order

a continuance to permit affidavits to be obtained

or depositions to be taken or discovery to be had

or may make such other order as is just.

District courts have "wide latitude in controlling

discovery, and [their] rulings will not be overturned in the

absence of a clear abuse of discretion." Volk v. D.A. Davidson

& Co., 816 F.2d 1406, 1416-17 (9th Cir. 1987) (quoting

Foster v. Arcata Assoc., Inc., 772 F.2d. 1453, 1467 (9th Cir

1985)). Nevertheless, a district court should continue a

summary judgment motion upon a good faith showing by

affidavit that the continuance is needed to obtain facts

essential to preclude summary judgment. See McCormick v.

Apdx A - 30

lund American Cos., Inc., 26 F.3d 869, 885 (9th Cir. 1994)

Thus, the defendants must show (1) that they have set forth in

affidavit form the specific facts that they hope to elicit from

further discovery, (2) that the facts sought exist, and (3) that

these sought after facts are "essential" to resist the summary

judgment motion

1. Affidavits

[11]"References in memuranda and declarations to a

need for discovery do not qualify as motions under Rule

56(f)." Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d

1439, 1443 (9th Cir. 1986). Rather, Rule 56(f) requires

litigants to submit affidavits setting forth the particular facts

expected from further discovery. We have stated that

"[fJailure to comply with the requirements of Rule 56(f) is a

proper ground for denying discovery and proceeding to

summary judgment." /d.

[12] The record does not show whether the defendants

Apdx A - 31

ever actually submitted affidavits setting forth the particular

evidence that they had hoped to elicit from further discovery

lt appears from the record that the defendants only implicitly

moved for more time to conduct discovery. For instance.

when addressing the defendants’ request for an extension of

time, the district court did not refer to any specific motion by

the defendants. Instead, the district court stated that the

‘[dJefendants imply that they will request further time for

discovery of the facts upon which plaintiff bases its motion."

The defendants’ apparent noncompliance with the terms of the

statute provides an adequate ground for us to affirm the

district court's denial of the defendants’ request for more

discovery. See id.

2. Existence of Facts Sought

[13]In any event, as we have emphasized. "[djenial of

a Rule 56(f) application is proper where it is clear that the

evidence sought is almost certainly nonexistent or is the object

Apdx A - 32

of pure speculation." 7erre// v. Brewer, 935 F.2d 1015, 1018

(9th Cir. 1991)

[14]Here, the defendants wanted more time to

discover the source of the groundwater contamination at

Stanley Park. There is undisputed evidence, however, that

workers at Victor Industries dumped trichloroethylene at the

20th Street Property for almost twenty years, that

groundwater under the 20th Street Property is contaminated

with trichloroethylene, that a well located between the 20th

Street Property and the Louisiana Pacific Property is

contaminated with trichloroethylene, that the Louisiana Pacific

Property is not contaminated with trichloroethylene, and that

the groundwater is flowing from the 20th Street Property

toward Stanley Park. Given these uncontroverted facts.

evidence that the 20th Street Property was not the source of

contamination at Stanley Park is almost certainly nonexistent

or is the object of pure speculation." /d

3. Essentialness of Facts Sought

[15]Moreover, Rule 56(f) mandates that "the party

seeking the continuance must show that it lacks the ‘facts

essential’ to resist the summary judgment motion."

McCormick, 26 F 3d at 885. But the facts that the defendants

hope to elicit during discovery are not essential to resisting

California's summary adjudication motion

[16] The undisputed evidence that trichloroethylene

contaminated the soil and groundwater at the 20th Street

Property is sufficient to establish the defendants’ liability under

California law. To succeed on its summary adjudication

motion, California need not prove that property other than the

20th Street Property suffered from contamination Under

California law, the pollution at the 20th Street Property

constitutes a public nuisance and violates California's

environmental laws. See Carter v. Chotiner, 210 Cal. 288.

291 (1930) (polluted water is a public nuisance); Cal. Health

Apdx A - 34

3

:

ee ae ee’ a en

& Safety Code § 253583 (when a release or threatened

release of hazardous substances endangers the environment,

those responsible may have to take remedial action)

Therefore. any additional data about contamination at

property other than the 20th Street Property is not relevant to

oppose the summary adjudication motion. See McCormick,

26 F.3d at 885 (concluding that additional testimony "would

have made no difference on suminary judgment, because the

allegedly omitted maternal would not have altered the total mix

of information available" to the plaintiff)

[17]The defendants therefore have not satisfied the

requirements of Rule 56(f). Accordingly, the district court did

not abuse its discretion when it denied the defendani's request

to stay summary adjudication and continue discovery

B. Summary Adjudication Standards

[18]Next, the defendants argue that there are genuine

issues Of material fact about who polluted the groundwater at

Apdx A - 35

Stanley Park and other off-site locations. They also argue that

California is not entitled to judgment as a matter of law

because the defendants were not owners or operators of the

20th Street Property. In short, the defendants believe that

California failed to meet the requirements for summary

adjudication

Summary adjudication "shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed R. Civ. P. 56(c). “By its very terms, this standard

provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment, the

requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

Apdx A - 36

(1986). Thus. the relevant inquiry in a summary adjudication

motion is threefold: is there a genuine issue, is that issue

about a material fact, and is the moving party entitled to

judgment as a matter of law

|. Genuine Issue

{19} An issue of fact is genuine if the ev idence is such

that a reasonable jury could return a verdict for the nonmoving

party. Anderson, 477 US. at 248 Of course, there must be

sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.” /d. at 249 (citing First Nat

Bank of Ariz. v. Cities Services, Co., 391 U.S. 253. 298-89

(1968). “If the evidence is merely colorable or is not

significantly probative summary judgment may be

granted." /d. at 249-50 (citations omitted)

[20]The defendants contend that the district court

erred by rejecting the testimony of Jay Lucas (their expert

witness) and the contour maps that Lucas prepared. The

Apdx A - 37

contour maps allegedly depict a "bull's eye" of

trichloroethylene contamination radiating from the Louisiana

Pacific Property. According to the defendants, Lucas's maps

and testimony support an inference that the Louisiana Pacific

Property was the source of the contamination detected at

Stanley Park.

[21] The Lucas evidence does create a dispute--or, in

the words of the summary adjudication statute, an "issue"--

between the parties: Lucas's evidence Suggests that the

Louisiana Pacific Property contaminated the water at Stanley

Park, and California's evidence Suggests that the 20th Street

Property contaminated the water at Stanley Park.

Merely showing that there is a dispute, however, is not

enough. The defendants musi show that there iS a genuine

dispute. This they have failed to do in the abstract, the

defendants are right. A juror who accepted Lucas's maps as

accurate could conclude that the contamination was

Apdx A - 38

.

i

originating from the Louisiana Pacific Property and was

becoming more diluted as it spread outwards. But this case

does not arise in the abstract. It arises in the context of

undisputed facts. many of which mandate a different

interpretation of Lucas's maps: namely, that the contamination

flowed "downhill" from the 20th Street Property and

accumulated at the bottom of the incline, which happened to

be at the edge of the Louisiana Pacific Property

[22]Given the following facts, no reasonable juror

could conclude that the Louisiana Pacific Property, rather than

the 20th Street Property, was the source of the contamination

at Stanley Park: (1) From 1963 to 1980, workers at Victor

Industries used large quantities of trichloroethylene as a

degreaser at the 20th Street Property and dumped it on the

ground there, (2) scientists detected trichloroethylene

contamination in the soil and in the water at the 20th Street

Property, (3) water flows from higher ground to lower

Apdx A - 39

ground. (4) the Louisiana Pacific Property is downgradient

from the 20th Street Property, (5) a well located between the

two properties -- in other words, downgradient from the 20th

Street Property and upgradient from the Louisiana Pacific

Property -- is contaminated with trichloroethylene: and (6)

testing of various sources of contamination at the Louisiana

Pacific Property revealed no trichloroethylene’* Thus. if

Lucas's maps were accurate and there really was more

trichloroethylene near the Louisiana Pacific Property than

there was away from it, then the trichloroethylene must have

flowed from the 20th Street Property and accumulated at the

‘The defendants argue that the Louisiana Pacific Property is

nor downgradient from the 20th Street Property and that the

Louisiana Pacific Property is polluted with trichloroethylene. They

have failed to present anv evidence to support these arguments.

however. Instead. they argue that thev necd more time to obtain such

evidence. As discussed above. this argument is not persuasive. The

defendants failed to file the necessary affidavit and they failed to

show that additional discovery would uncover essential facts. Thus.

although the court must view genuinely -disputed facts in the light

most favorable to the defendants. it must treat these unrebutted facts

as truc

Apdx A - 40

edge of the Louisiana Pacific Property. No other conclusion

is reasonable given the undisputed facts of this case.

Accordingly, there is no genuine dispute about which property

polluted the water at Stanley Park and the other off-site

locations

2. Material Fact

[23]Besides failing to show a genuine dispute, the

defendants fail to show that the parties dispute material facts

The defendants list many facts that the parties dispute, but as

the defendants themselves point out, all of the disputed facts

pertain to how the trichloroethylene ended up at Stanley Park

and other off-site locations. As shown below. the facts

pertaining to off-site pollution are not material to California's

summary adjudication motion

Substantive law determines which facts are material

Anderson, 477 U.S. at 248. "Only disputes over facts that

might affect the outcome of the suit under the governing law

Apdx A - 41

-—

will properly preclude the entry of summary judgment.

Factual disputes that are irrelevant or unnecessary will not be

counted." /d.

The relevant substantive law here is California

nuisance law and California environmental law. Under these

laws, polluted water is a public nuisance, Carter v. Chotiner.

210 Cal. 288, 291 (1930), and any person who creates or

helps create and maintain a nuisance is liable for its abatement

and damages. Se/ma Pressure Treating Co., Inc. v. Osmose

Wood Preserving Co., 221 Cal. App. 3d 1601, 1619-20

(1990). Furthermore, when a release or threatened release of

hazardous substances endangers the environment. those

responsible may be ordered to take remedial action. Cal.

Health & Safety Code § 25358 3.

[24]Thus, to state a claim under California law.

California need not prove that trichloroethylene migrated from

the 20th Street Property to other areas. It is enough that the

Apdx A - 42

Pre ee ee

water under the 20th Street Property itself was contaminated

in other words, the polluted water at the 20th Street Property

created a public nuisance and endangered the environment.

The cause of the trichloroethylene contamination at Stanley

Park and other off-site areas is therefore immaterial to

California's state law claims.

3. Judgment as a Matter of Law

Given that there is no genuine dispute about any

material fact, the defendants can defeat the summary

adjudication order only if the facts do not entitle California to

judgment as a matter of law. See Fed. R. Civ. P. 56(c)

(summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law). The defendants argue that

California is not entitled to judgment as a matter of law

because the defendants were not owners or operators of the

20th Street Property at the time that hazardous chemicals

Apdx A - 43

were disposed there

This argument presumably goes to the interlocutory

CERCLA-liability issue, over which we have no appellate

jurisdiction. As mentioned above, it is CERCLA-not state

law-that imposes liability on "owners" and "operators" of

facilities at which hazardous substances were dumped. 42

U.S.C. § 9607

[25]Unlike CERCLA, California law imposes liability

on any person who maintains a nuisance--regardless of

whether that person has an interest in the land. Hardin v. Sin

Claire, 115 Cal. 460, 463-64 (1896) (holding administrator of

an estate liable for maintaining a nuisance even though it was

the decedent who had originally created the nuisance). As

executors of Muscat's estate and trustees over Muscat's trusts.

the appellants maintained a nuisance by administering property

where hazardous chemicals were polluting the water.

Therefore, the appellants are liable under California law

Apdx A - 44

regardless of whether they were owners or operators under

CERCLA. Accordingly, the district court properly found that

California was entitled to judgment as a matter of law on the

state law claims

California has met the requirements for summary

adjudication. The district court therefore did not err when it

found as a matter of law that the defendants were liable under

California's nuisance and environmental laws:

Ill. Issuance of the Injunction

Besides contesting their liability under state law, the

defendants contest the injunction that requires them to abate

the public nuisance. Specifically, the defendants argue that the

injunction is too broad and that it violates Rule 65(d) of the

Federal Rules of Civil Procedure

A. Breadth of Terms

[26] Although the defendants claim that the entire

injunction is overbroad, they point to only two provisions that

Apdx A - 45

ihey claim are too broad: the modification provision (which

allows the State Department of Toxic Substances Control to

modify an order that it issued) and the waterline provision

(which requires the defendants to install a waterline to Stanley

Park). The modification provision, however, is not part of the

injunction,’ and the waterline provision is moot because

California has already built the waterline, see Friends of the

Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978)

("Where the activities’ sought to be enjoined have already

‘Although the modification provision is part of an order that

Was incorporated into the injunction, the district court specifically

excepted that provision front the injunction:

If the State construes my order as incorporating [the

modification provision] . . . . it seems to me that |the

modification provision] . . . provides the Executive

Branch with authority to engage in unilateral action. |

don't think that the Executive Branch should have the

authority to engage in such action ... and | have no

intention of embracing such action.

Any action that is before me for purposes of contempt

must be on the basis of something that | have

specifically ordered

Apdx A - 46

— OO eee, 2.

occurred, and the appellate courts cannot undo what has

already been done, the action is moot."). Moreover, the

remaining provisions of the injunction are not overbroad

The provisions of the injunction originate from an

order that requires the defendants to clean up soil and water

at the 20th Street Property and at areas up to a mile away

The order was issued by the State Department of Toxic

Substances Control. The Department of Toxic Substances

Control has experience removing hazardous substances from

the soil and is authorized by the California Health and Safety

Code to issue orders for removing or remedying releases of

hazardous substances

[27|The district court independently reviewed the

provisions of the Department's order and concluded that they

were necessary to ensure public safety. The defendants might

believe that the provisions pertaining to the surrounding areas

are too broad because the 20th Street Property was not the

Apdx A - 47

source of the contamination detected at those areas. As

explained above, however, the district court properly found

that the 20th Street Property was the source of the off-site

contamination. The distnct court was therefore well within its

discretion when it relied on the Department's expertise and

incorporated the provisions of the order into the injunction

B_ Incorporation by Reference

[28]In their final argument, the defendants contend

that the distnct court violated, Federal Rule of Civil Procedure

65(d) by incorporating the Department's order into the

injunction Rule 65(d) provides that every order granting an

injunction “shall describe in reasonable detail, and not by

reference to the complaint or other document, the act or acts

sought to be restrained " Fed R. Civ. P. 65(d)

Ordinanly, “an injunction should not incorporate by reference

another document" Davis v. City and County of San

Francisco, 890 F 2d 1438, 1450 (9th Cir. 1989) (quoting

Apdx A - 48

Henry Hope X-Ray Prods., Inc. v. Marron Carrel, Inc., 674

F 2d 1336, 1343 (9th Cir. 1982))

We have not read Rule 65(d) so strictly as to preclude

any incorporation, however. See id. at 1450. Instead. we

have interpreted the rationale behind the incorporation-by-

reference language in Rule 65(d) as a safeguard to “ensure

adequate notice to defendants of the acts prohibited." Henry

Hope X-Ray, 674 F.2d at 1343 (holding that the district court

did not abuse its discretion when it failed to attach a

confidential appendix to its injunctive order because the

appendix was transmitted to the parties)

[29]By incorporating the order into the injunction, the

district court acted consistently with the rationale of Rule

65(d). The defendants were aware of the order because it was

physically attached to the injunction itself | Thus. the

defendants received adequate notice that they could face

contempt if they violated the order Under these

Apdx A - 49

circumstances, the district court did not err by attaching the

order to the injunction

CONCLUSION

[he district court properly found the defendants liable under

California's nuisance and environmental laws and propert\

issued an injunction against the defendants Given

interlocutory posture of this case. however. we lack appe

jurisdiction to consider whether the district court also pr

found the defendants liable for California's clean-up costs

under CERCLA Accordingly. the CERCLA portion of this

appeal 1s DISMISSED and the remainin

appeal are AFFIRMED

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STATE OF CALIFORNIA.) CV S-93-604 GEB/JFM

on behalf of the California ) ORDER

Department Toxic )

Substances )

Control

Plaintiff,

\ )

ALBERT CAMPBELL.

individually and Trustee

of the VICTOR MUSCAT

TESTAMENTARY TRUSTS)

and Executor of the )

ESTATE OF VICTOR

MUSCAT, CHARLES )

TACKMAN, individually

and as Trustee of

the VICTOR MUSCAT )

TESTAMENTARY TRUSTS)

and Executor of the ESTATE)

OF VICTOR MUSCAT

Defendants

Plaintiff moves for partial summary judgment on three

of its six claims. Its first claim seeks recovery of costs it

Apdx B - 51

incurred to cleanup a release of hazardous substances under

the Comprehensive Environmental Response, Liability and

Compensation Act, 42 U.S.C. 9601, et seq. ("CERCLA").

Plaintiff seeks a determination that Trustees Campbell and

Tackman are strictly liable as owners or operators for the

release and threatened release of PCE and TCE from a factory

operated by Victor Industries at 265 East 20th Street in

Chico, California ("the 20th Street property"). Defendants

argue that although trichloroethylene ("TCE") and

perchloroethylene ("PCE") were released into the soil on the

20th Street property, plaintiff fails to prove Victor Industries

caused the contamination of groundwater drinking water wells

at a housing subdivision called Stanley Park, a mile

downgradient from the Trust's property. Defendants claim

that the Louisiana-Pacific site between the 20th Street

property and Stanley Park also released PCE and TCE that

may have caused the contamination. Plaintiff also moves for

Apdx B - 52

entry of a permanent injunction on their second and third

claims for relief, The second claim is under a new California

3 environmental law, Health and Safety Code § 253583. The

third claim is for public nuisance

When defendants filed their opposition to the State's

motions, they also moved to dismiss the state law claims for

lack of subject matter jurisdiction. While the issue of subject

matter jurisdiction has not been fully briefed at this time,

plaintiff's motion, if granted would dispose of two of its state

law claims. Therefore, although defendants simply refer to

this issue in their briefs, delaying ruling until September 13,

1993, would render defendants, motion moot as to plaintiff's

State statutory and public nuisance claims. Plaintiff's claims

for clean-up of the TCE and PCE contamination at the 20th

Street site, and contamination migrating from that site, are

part of a single "case or controversy" within the supplemental

jurisdiction of this court. Defendants’ motion requests that

Apdx B - 53

this court exercise its discretion to dismiss the state claims,

and does not challenge the existence of subject matter

jurisdiction. Therefore, defendants' subject matter jurisdiction

arguments are rejected for this motion

A Mouon for Summary Judgment on Plaintiffs

“ERCLA claim

wy

It is undisputed that large quantities of PCE and TCE

were used as a degreaser by Victor Industries from 1963 to

1980 and released onto the ground at the 20th Street site.

TCE was found in tests of soil and soil gas and in shallow and

intermediate groundwater at that location

The potential dispute is whether plaintiff has

adequately proved that the TCE contaminating the

intermediate groundwater was caused by a release from the

, :

20th Street site Defendants assert that the Louisiana-Pacific |

property (""L-P") located between the 20th Street site and the

housing subdivision was the source. The evidence shows that

Apdx B - 54

CO re a

OE” BT ID Pee DERN

the intermediate groundwater flows in a west-southwest

direction and that wells monitoring the intermediate

groundwater on the east border of the L-P property show

PCE contamination. This is evidence that the intermediate

groundwater is contaminated before it reaches the L-P

property. Moreover, L-P conducted extensive soil and soil

gas studies of the various potential contamination sources and

found no TCE. Defendants argue that the burn pit on the

eastern edge of the L-P property should be investigated for the

presence of TCE. However CE and PCE are volatile organic

compounds not likely to be found in a burn pit area, as the

experts determined when conducting the initial investigation

and evaluation of the L-P site

Defendants attempt to show that L-P ts the source of

the TCE contamination using contour maps. However,

defendants’ expert used CE concentrations from various

depths of water to construct a contour map of the

Apdx B - 55

intermediate groundwater. Thus, defendants’ experts contour

maps cannot be accorded evidentiary weight.

Plaintiff has carried its burden of proving the elements

of its CERCLA claim as follows:

(1) the 20th Street site is a “facility,”

(2) TCE and PCE are “hazardous substances"

under CERCLA,

(3) a "release" and "threatened release" of

hazardous substances from the 20th Street site into the

environment has occurred and is occurring,

(4) plaintiff incurred costs for actions taken in

response to the release and threatened release of hazardous

substances from the 20th treet site,

(S) Campbell and Tackman, as Trustees of the

Victor Muscat Testamentary Trusts and as Executors of the

Estate of Victor Muscat are "owners" and were "operators" of

the 20th Street site at the time of disposal of the hazardous

Apdx B - 56

substances, and

(6) Campbell and Tackman are jointly and

severally liable for Plaintiff's costs of responding to the release

and threatened release of hazardous substances from the site

B Request for Permanent Injunction

Plaintiff also seeks a permanent injunction requiring

Campbell and Tackman, as Trustees of the Victor Muscat

Testamentary Trusts and as Execu.ors of the Estate of Victor

Muscat, to comply with its Imminent and Substantial

Endangerment and Remedial Action Order ("ISE Order") for

the 20th Street site, issued May 1992.' This order requires

defendants to install a drinking water line in the Stanley Park

subdivision, among other actions. Defendants have asserted

Following oral argument. Defendants submitted a proposed

order which would require them to install the drinking water line and

which they have argued would obviate the need for entry of a

permanent injunction. However. Defendants’ assurances of voluntary

compliance do not prevent entry of an injunction Securities &

Exchange Com'n y_ Murphy, 626 F 2d 633. 655-56 (9th Cir. 1980)

Apdx B - 57

they are unable to commit Trust funds for this purpose

without a authorization of the Connecticut Probate Court

which oversees the Testamentary Trusts. Thus the State

contends that defendants have failed and refused to comply

with the ISE Order and seeks injunctive elief under both the

California Hazardous Substance Account Act ("HSAA"), Cal.

Health and Safety Code §§ 25300 et seg., and public nuisance

law.* Defendants assert that their contour maps of the TCE

plume and the alleged lack of complete data create a disputed

issue of fact as to whether the TCE plume is an imminent and

substantial endangerment or was caused by defendants. These

arguments are rejected for the reasons stated above in the

summary judgment discussion.

Defendants next argue that the drinking line is not

“Defendants asserted in ora! argument that § 25366 which

bars liability for actions which were lawful before 1982 would apply

to the claim under Health and Safety Code § 25358. The court need

not decide this issue. as the plaintiff's public nuisance claim seeks

identical relief.

Apdx B - 58

Te ers

Git By,

Pb RAE MSEC RAS at EE ESE AS

necessary since they have installed Point of Entry Treatment

Systems ("POETS") on any well which was found to have

TCE above the Maximum Contaminant Level ("MCL") of 5.0

parts per billion for TCE in public drinking water supplies

Plaintiff argues in rebuttal that installation of the POETS is not

sufficient to prevent endangerment to public health. Plaintiff

points to evidence that the number of wells requiring

treatment systems has increased by two a year which

represents approximately a 25% increase per year. Moreover,

in tracking the TCE plume, defendants’ monitoring wells have

found increases in TCE concentration in just one month,

indicating that the quarterly monitoring of drinking water in

Stanley Park is not sufficient to protect residents from

exposure to levels of TCE above the MCL. Moreover,

defendants’ installation of the POETS does not avoid health

risks because the exposure to hazardous chemicals occurs for

another one to three months after detection of TCE levels

Apdx B - 59

above the MCL Furthermore, defendants do not conduct

regular testing of the POETS after installation to insure that

they are still effective

Plaintiff has shown that the drinking water line is

necessary to protect the health and safety of the residents of

Stanley Park, that POETS are not an effective alternative, and

that the plume has migrated su‘ficiently such that installation

of the dnnking water line is necessary before remediation can

occur. No other equitable considerations weigh significantly

into the determination. The Trustees argue that they face

potential suit by the trust beneficiaries if they expend funds for

the drinking water line without prior authorization by the

Connecticut Probate Court, however, they fail to consider the

potential health risks to residents of Stanley Park who are

unknowingly exposed to levels of TCE exceeding the MCL

caused by defendants failure to voluntarily comply with the

State's ISE Order.

Apdx B - 60

Therefore a permanent injunction is hereby issued

requiring defendants to abate the public nuisance of TCE and

PCE contaminated soil and groundwater at the 20th Street site

and the groundwater downgradient from the site. Defendants

shall abate the nuisance by complying with the State's ISE

Order of May 1992 (a copy of which is attached and

incorporated herein) with time limits or deadlines to apply

from the date of this Order and Injunction. -

IT IS SO ORDERED.

DATED: August 4, 1993

/s/ Garland E. Burrell, Ir

GARLAND E. BURRELL, JR

UNITED STATES DISTRICT JUDGE

Apdx B - 61

BEFORE THE CALIFORNIA

ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF TOXIC SUBSTANCES

CONTROL

In The Matter Of )

Former Victor Industries)

Corporation

operations at

365 E. 20th Street

Chico, California

Hazardous Waste Site

Responsible Parties

Victor Industries

Vic, Inc

Charles A. Tackman

and Albert F. Campbell

as trustees on behalf

of the Victor Muscat

Trust, CCL Industries,

Inc.. and Advanced

mee mem em me meme ee me me me meme ee”

Monobloc, Inc

Docket No. I/SE 91/92-007

IMMINENT OR

SUBSTANTIAL

ENDANGERMENT

AND REMEDIAL

ACTION ORDER

Health & Safety Code

(Sections 25358 5(a)(1)(B),

and 25358 .3(a)(1))

Apdx B - 62

Pe oe,

I INTRODUCTION

1.1 Parties The State Department of Toxic

Substances Control (Department) issues this Imminent or

Substantial Endangerment and Remedial Action Order (Order)

to Victor Industries; Vic, Inc., Charles A. Tackman and

Albert F. Campbell as Trustees on behalf of the Victor Muscat

Trust, CCL Industries, Inc. and Advanced Monobloc, Inc

(Responsible Parties).

1.2 Site. The Site which is the subject of this Order is

located at 365 East 20th Street in Chico, California. A map of

the Site is attached as Exhibit |

1.3 Jurisdiction Section 25355 5(a) (1) (B) of the

Health and Safety Code (H&SC) authorizes the Department

to issue an Order establishing a schedule for removing or

remedying a release of a hazardous substance at a site, or for

correcting the conditions that threaten the release of a

hazardous substance. The order includes, but is not limited to.

Apdx B - 63

requiring specific dates by which the nature and extent of a

release shall be determined and the site adequately

characterized, a remedial action plan prepared and submitted

to the Department for approval, and a removal or remedial

action completed This Order supersedes Remedial Action

Order Number HSA 88/89-0i4

1.3.1 Section 25358 3(a)(1) of the H&SC authorizes

the Department to order any responsible party to take

appropriate removal or remedial action if the Director

determines that there may be an imminent or substantial

endangerment to the public health or welfare or to the

environment because of a release or threatened release of a

hazardous substance and such removal or remedial action 1s

necessary

1 4 Exhibits All Exhibits attached to this Order are

incorporated herein by this reference

Apdx B - 64

Il FINDINGS AND DETERMINATIONS

2.0 Victor Industries; Vic, Inc. , Charles A. Tackman

and Albert F. Campbell as Trustees on behalf of the Victor

Muscat Trust; CCL Industries, Inc. and Advanced Monobloc,

Inc. are responsible persons or parties and liable persons as

defined by H&SC Sections 25323.5, 25319, 25360, and

| 25385. 1(g).

2.1 Description of Each Respondent and Connection

to Site

2.1.1 Victor Industries manufactured lead and

aluminum tubes and cans at 365 East 20th Street, Chico,

where they operated from approximately 1958 to 1985

Victor Industries used trichloroethylene (TCE) and

perchloroethylene (PCE) for degreasing and general cleaning.

Former employees have reported to the Department that these

solvents were disposed of by dumping them onto the ground

on the site The employees have stated that 150 to 200

Apdx B - 65

gallons of TCE were used each month the business was in

operation and that these substances were disposed of on the

site. It is estimated that 21,000 gallons of TCE and PCE were

dumped just during the seven year period from 1963 to 1970

These disposal practices have resulted in significant soil and

groundwater contamination

2.1.2 Vic, Inc. purchased Victor Industries in October

1984. Vic, Inc. is a successor corporation to Victor

Industries. Vic, Inc. is also an operator of the site because it

continued to manufacture tubes and cans at the site: until

approximately 1985. Vic, Inc. purchased and used PCE at the

site. PCE has been found in the soil and groundwater at the

site

2.1.3 The Victor Muscat Trust (Trust) is the present

land owner at the Site, and also owned the site during the time

that hazardous substances were disposed on the site.

2.1.4 CCL Industries, Inc. (CCL) and/or Advanced

Apdx B - 66

ee in lial

Monobloc, Inc. purchased Victor Industries in August, 1990

from Vic. Inc.. CCL and Advanced Monobloc, Inc. are

successor corporations to. Victor Industries.

22 Site Investigations and Substances Found at the

site

2.2.1 on September 15, 1984 the Department's

Surveillance and Enforcement Unit inspected the Victor

Industries’ East 20th Street facility and advised that certain

hazardous substances be removed from the Site. Samples

taken from the surface near the paint shed and next to the

doors on the southwest side of the manufacturing building

identified concentrations of TCE, PCE, 1,1,1 TCA, and

methylene chloride in the soil. During September 1985, 34

fifty-five gallon drums of excavated soil contaminated with

hazardous substances listed above, 33 cubic yards of asbestos

sheeting, and 21 drums of paint related material were removed

from the Site

» *&

2.2.2 Dunng September 1989 and January 1992, soil

gas samples were collected by the Department's contractor at

a depth of five feet at the Site The 1989 samples showed

concentrations of TCE at, 299 micrograms per liter (ug/1) in

the soil near the southwest doors of the old manufacturing

building. The 1989 samples also showed concentrations of

PCE at 113 ug/l near the old railroad tracks between the two

buildings on the site. Former Victor Industries’ employees

have identified these areas as disposal areas for hazardous

substances. The 1992 soil gas samples showed concentrations

of both TCE and PCE in soil beneath the plant slab, where

solvent degreasers used to operate’ TCE concentrations

exceeded 56 ug/l, and PCE exceeded 89 ug/I at this location

In addition, in December 1991 the Department collected a soil

sample at the same location as the 1989 soil gas samples,

which contained concentrations of TCE at 207,000 ug/l, and

PCE exceeding 2500 ug/I

Apdx B - 68

2.2.3 The Victor Muscat Trust hired Brown and

Caldwell consultants to perform investigations at the Site

during November, 1990 pursuant to the Department's

Remedial Action Order HSA 88/89-014. Brown and Caldwell

installed a groundwater monitoring well, and collected

groundwater samples at seven locations via the "hydropunch"

method. Six of these locations were downgradient and one

location was upgradient from the site. A soil sample collected

at Location BC-1, at a depth of 2.5 to 3 feet showed TCE

concentrations of 17,000 ug/!. and PCE concentrations of

13,000 ug/l. BC-1 is located near the door of the

manufacturing building where the Department's 1989 soil gas

samples were taken. As previously indicated, this location has

been identified by former Victor employees as an area where

hazardous substances were disposed

Groundwater samples showed TCE concentrations of

25 ug/! at Location HP-7 (downgradient) and non detect

Apdx B - 69

concentrations of TCE and PCE at Location HP-3

(upgradient) in the shallow unconfined aquifer These samples

confirm releases of hazardous substances at the site

224 During December 1989 Vic, Inc. hired a

consultant (Environmental Strategies Corporation) to install

four groundwater monitoring wells and collect samples of soll

and groundwater at the Site No detectable concentrations of

TCE or PCE were located upgradient, and low concentrations

of TCE (1 to 6 ug/l) were found downgradient from the

facility, in the upper portion of the shallow unconfined aquifer

Health Risks of Substances Found

>)

we

eat TCE and PCE are suspected human

carcinogens Exposure is by ingestion, inhalation, or direct

contact Both chemical act as a narcotic in high

concentrations. PCE can cause dermatitis with prolonged skin

contact. TCE in high concentrations may cause hepatocellular

carcinonoma ~The California drinking water maximum

Apdx B - 70

contaminant level (MCL) is 5 0 parts per billion (ppb) for both

PCE and TCE. A MCL is a water quality standard set by the

Department of Health Services. For carcinogens in drinking

water, it is based on a one-in-one-million cancer risk

2.4 Population at Risk Drinking water supplies have

been severely impacted by the disposal of TCE and PCE at the

former Victor Industries facility. This includes both municipal

and private drinking water supplies. Chico's water purveyor,

California Water Service Company (CWS) has been required

to collect water samples repeatedly from their deep wells both

upgradient and downgradient from the Victor Industries

facility. TCE has been detected in four municipal wells all

located downgradient from the Site. One of those wells

(CWS No. $1) contained concentrations of TCE at 2.5 ug/l

This well is located only four city blocks downgradient from

the Site. It is a high volume pumping well (+900 gallons per

minute) with a long screened intake interval. The state

Apdx B - 71

maximum contaminant level (mel) of TCE for drinking water

is 5.0 ug/l. These deep wells have "drawn" the TCE from the

Victor source downward into the deep aquifers that supply

groundwater to the CWS wells

During 1989 and 1991 the Department collected

samples from 190 private wells, all downgradient, from the

Site. A majority of these wells, 186, supply water to

residences, and four supply water to Louisiana Pacific

Corporation's (L-P) industrial facility. All four of the L-P

wells contained TCE, and concentrations exceeded 140 ug/l

in one of them. At the time these samples were collected, L-P

employees were drinking the water. L-P immediately began

supplying its. employees with bottled water, after the

Department notified L-P of its sampling results. The other

186 private wells are located in the Stanley Park subdivision,

outside the Chico City limits. Of the 186 wells tested, 62 of

them contained concentrations of TCE and/or PCE, 1,1,1

Apdx B - 72

aE SaSEY.

TCA, and DCE. Nine of these 62 impacted private wells

contain concentrations of TCE exceeding the MCL of 5.0

ug/l. The residential wells in Stanley Park are relatively

shallow -in depth (55 to 160 feet). The deepest wells owned

by L-P and those in Stanley Park contain the highest

concentrations of TCE. This is indicative that the contaminant

plume in, the groundwater has traveled a long distance. The

Stanley Park subdivision contains the "leading edge" of the

plume, and is the furthest distance from the Victor Site

(approximately one mile).

2.5 Routes of Exposure The principal exposure route

is through the drinking water supply. The water supply

system for the main City of Chico is interconnected and any

one contaminated well can affect the entire water supply. This

puts the 100,000 residents of Chico at risk if contaminated

water at significant concentrations enters the water supply

The residents in the Stanley Park subdivision are at a much

Apdx B - 73

greater risk, due to the fact that they are solely dependent on

their private wells for drinking water In addition, the TCE

plume will spread to other water supply wells, which will

likely include the Chico Mobile Country Club. This mobile

home park with 180 residential hookups is directly

downgradient from the plume and is one block south of the

Stanley Park subdivision

A second exposure route is through direct contact with

inhalation of TCE and PCE vapors. Inhalation occurs by the

volatization of TCE from contaminated water in a shower or

laundry area. According to a study performed at the

Lawrence Livermore Laboratory the inhalation exposure

pathway from contaminated water is at least equal in risk to

that of ingestion

3.0 Conclusions of Law

3.0.1 Victor Industnes, Vic. Inc.. Charles A. Tackman

and Albert F. Campbell as Trustees on behalf of the Victor

Apdx B - 74

ht det ah a ay

vai fb ec ba a ie edad cnn

Muscat Trust, CCL Industries and Advanced Monobloc, Inc

are responsible parties or "liable persons," as defined by

H&SC Sections 25319, 25323.5 and 25385. 1(g)

3.02 TCE and PCE are “hazardous substances," as

defined by H& SC Section 25316, and have been found at the

site

303 A “release” or threatened release of the

hazardous substances TCE and PCE has occurred at or from

the site, as defined by H& SC Section 25320

304 The actual and/or threatened release of

hazardous substances at the site may present an imminent and

substantial endangerment to the public health or welfare or to

the environment

lll QRDER

40 Based on the foregoing FINDINGS AND

CONCLUSIONS OF LAW, the Department hereby

determines that removal and remedial action is necessary on

Apdx B - 75

and off the site because there may be an imminent and

substantial endangerment to the public health or welfare or to

the environment. IT IS HEREBY ORDERED THAT the

Responsible Parties conduct the following response activities

in the manner specified herein, and in accordance with a

schedule specified by the Department as follows.

41 ALL WORK PERFORMED UNDER THIS

ORDER SHALL BE CONSISTENT WITH AND BASED

ON the Comprehensive Environmental Response, and

Compensation and Liability Act (CERCLA) (42 U.S.C. 9601

et sea., as amended, the National Contingency Plan (40 Code

of Federal Regulations (CFR) Part 300), as amended, state

laws and regulations, and other current and applicable U.S.

Environmental Protection Agency (EPA) and Department

guidelines and standards.

4.2 Notification of Intent to Comply. Within 15

calendar days of the effective date of this order, the

Apdx B - 76

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Responsible Parties shall submit a written notice of their intent

to comply with the terms of this Order

4.3 Removal Actions. The Responsible Parties shall

implement the following removal actions after workplans and

time schedules for such removals have been approved by the

Department. The Respondents shall keep the community

informed of removal actions by submitting and distributing

fact sheets, after they have been approved by the Department

Workplans and time schedules for implementing the removal

actions shall be submitted by the specific dates ‘used below

A Drinking Waterline Construction. A drinking

waterline extension and all necessary

distribution lines shall be constructed in the

Stanley Park Subdivision. This distribution

system for public water supplies shall include

hooking up all private wells containing

concentrations of TCE, PCE, and/or 1.1.1

Apdx B - 77

TCA, and DCE that exceed their MCL as

identified in previous Department well

sampling events. In addition, to protect the

residents with wells containing concentra_ions

of contaminants that do not exceed their

MCL's, a choice of the following two

alternatives shall be made: 1) Quarterly

samples shall be taken of all these private

wells, or 2) All these private residences shall

be hooked up to the new waterline. These

actions are necessary because as the plume

advances, contaminant concentrations may rise

and additional private wells may be impacted.

Locations of these private wells shall include,

but not be limited to those wells located on

Orchard, Diamond, Marian and Stanley

Avenues, and Dayton Road, Harper Valley and

Apdx B - 78

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ees eit ica SPOR ENE ES

Shawna Lanes, Barrington and Solar Estates

Drives, and Serenity Way. A workplan to

implement this construction shall be submitted

to the Department for review and approval

within 40 days of the date of issuance of this

order. Construction of the waterline shall be

completed within 120 days of issuance of this

Order.

Groundwater Extraction and Treatment

Responsible Parties shall submit a workplan to

the Department for review and approval

discussing different treatment technologies,

and engineering and cost analysis to extract

and treat contaminated groundwater onsite

and/or offsite, based upon a request from the

Department at a later date. A design and

implementation schedule shall be submitted to

Apdx B - 79

the Department for review and approval of the

recommended treatment and extraction system

within 120 days of the Department's approval

of the engineering and cost analysis.

Groundwater Extraction and Treatment

Evaluation Report. After four (4) months of

operation of the extraction system, an

evaluation report shall be prepared and

subinitted to the Department for review and

approval. This report shall evaluate the

effectiveness and capture zone of the

extraction system for the removal of organic

solvent constituents from groundwater. The

Responsible Parties shall submit any additional

reports for Department review and approval as

required by the Department.

Responsible Parties shall undertake additional

Apdx B - 80

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Removal Actions if the Department determines

that they are necessary for the protection of

the public health or welfare or the

environment. Upon request by the

Department, Responsible Parties shall submit

Removal Action workplan and schedule for

approval by the Department. Responsible

Parties shall implement the Removal Action

workplan as approved by the Department in

accordance with the approved schedule.

44 Groundwater Monitoring. The Responsible

Parties shall immediately begin interim groundwater

monitoring at onsite, off site and Stanley Park wells in

accordance with previous site groundwater monitoring plans

approved by the Department. Groundwater level

measurements shall be conducted quarterly commencing the

first month after the date of issuance of this order.

Apdx B - 81

Groundwater sampling shall also be conducted on a quarterly

basis commencing in the same month as above. Subsequent

monitoring shall be conducted until the Department

determines it 1s appropriate to terminate monitoring

ial Investi

A RI/FS shall be conducted for the Site. The RI/FS shall be

prepared consistent with the U.S. Environmental Protection

Agency's "Guidance for Conducting Remedial Investigations

and Feasibility, Studies under CERCLA", October 1988 and

the National Contingency Plan (40 Code of Federal

Regulations (CFR) Part 300), as amended, state laws and

regulations, and other current and applicable US.

Environmental Protection Agency (EPA) and Department

guidelines and standards. The purpose of the RI/FS is to

assess site conditions and evaluate alternatives to the extent

necessary to select a remedy. RI and FS activities shall be

conducted concurrently and iteratively so that the

Apdx B - 82

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investigations can be completed expeditiously. The following

elements of the RI/FS process and those defined by the

Department in Section 4.1 of this Order shall be preliminarily

defined in the initial site scoping and refined and modified as

additional information is gathered throughout the RI/FS

process

A Remedial Action objectives including

applicable or relevant and appropriate

requirements (ARARs)

B Project phasing including the identification of

removal actions and operable units

4.5.1 RVFS Workplan. Within 60 days of the effective

date of this Order, Responsible Parties shall prepare and

submit to the Department for review and approval, a detailed

RI/FS Workplan and implementation schedule which covers

all the activities necessary to conduct a complete remedial

investigation and feasibility study of the Site and any offsite

Apdx B - 83

areas where there is a release or threatened release of

hazardous substances from the Site. The RI/FS Workplan

shall include a detailed description of the tasks to be

performed, information or data needed for each task, and the

deliverables which will be submitted to the Department.

These 13 deliverables are discussed in the remainder of this

Section, with a schedule for implementation, and monthly

reports. Because of the unknown nature of the Site and the

iterative nature of the RI/FS, additional data requirements and

analysis may be identified throughout the process. Either the

Responsible Party or the Department may identify the need for

additional work. The RI/FS Workplan shall include all the

elements listed below

A Project Management Plan <A_ Project

Management Plan which describes how the

project will be managed by Responsible Parties

and its contractors, subcontractors, and

Apdx B - 84

consultants including an organization chart

with the names and titles of key personnel and

a description of, their individual

responsibilities

Scoping Document. The scoping document

shall be developed in consideration of the

program goal, program management

principles, and expectations contained in the

NCP. It shall include

An Analysis and summary of the site

background and the physical setting

At a minimum, the following

information is required

(a) A map of the site, description

of past and current

manufacturing processes if

they exist, aerial photographs

Apdx B - 85

(b)

(C)

and blue prints showing

buildings and structures;

A description of past disposal

practices,

A list of all hazardous

substances, materials or wastes

which were disposed,

discharged, spilled, treated,

stored, transferred,

transported, handled or used at

the Site, and a description of

their estimated volumes,

concentrations, and

characteristics;

Since lead was used in the

production of metal tubes at

the Site, it shall be explored

Apdx B - 86

3

4

;

3

;

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ta

and analyzed as a target

hazardous waste around the

manufacturing facility, and

(e) A description of hazardous

substance characteristics

A summary of all contaminant investigations

shall be made identifying the horizontal and

vertical extent of contamination in soil, soil

gas, and groundwater. Spatial and temporal

trends shall be evaluated. Responsible Parties

shall create maps showing concentration lines

of contaminants in soils, soil gas, and

groundwater.

One of the objectives of the RI shall be to determine

the nature and full extent of hazardous substance

contamination in the soil-and groundwater at the site

and from the site including off-size areas affected by

Apdx B - 87

releases from the site. This shall be accomplished by

collecting soil samples and installing groundwater

monitoring wells in the following locations

Three (3) clusters of three (3) monitoring

wells each shall be installed along Park

Avenue, within the boundary of the TCE

plume, downgradient from the site. One (1) of

the clusters shall be installed in the City right-

of-way near the PG&E Substation, one (1)

cluster of wells shall be installed near Park

Avenue and 20th Street, and one (1) cluster of

wells shall be installed two blocks further

north along Park Avenue. Each of these three

(3) well clusters shall have screens constructed

in each of three (3) separate groundwater

aquifers as follows: one well each shall be

completed in the shallow unconfined zone

Apdx B - 88

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(approximately 20-40 feet below ground

surface), one well each in the upper confined

zone (approximately 90-120 feet below

ground surface), and one well each in the

lower confined zone (approximately 150-170

feet below ground surface).

Three (3) clusters of three (3) monitoring

wells each shall be installed between Park

Avenue and the Louisiana-Pacific facility,

downgradient from the site. One of the

clusters shall be installed along 21st Street

Another cluster shall be installed along 19th

Street and the third shall be installed along

17th Street, all between Broadway and Salem

Streets. Each of the three (3) well clusters

shall have screens constructed in each of the

three (3) separate groundwater aquifers as

Apdx B - 89

follows: one well each shall be completed in

the shallow unconfined zone, one well each

shall be completed in the upper confined zone,

and one well each shall be completed in the

lower confined zone

Two (2) additional well clusters of three (3)

monitoring ‘ells each shall be installed in the

Stanley Park Subdivision, downgradient from

the site. Gne of the well clusters shall be

installed in the almond orchard, next to the

furthest house north an Diamond Avenue. The

other well cluster shall be installed near the

intersection of Stanley Avenue and Dayton

Road, at the leading edge of the plume. Each

of the two (2) well clusters shall have screens

constructed in each of the three (3) separate

groundwater aquifers, such as those denoted in

Apdx B - 90

2 Rew ai as BAAD tC EO

item Cl and 2.

All wells installed as part of the Remedial

Investigation shall be constructed in

accordance with the Department's technical-

standards for groundwater monitoring well

construction. The Department shall have final

approval authority over all well construction

specifications and all wells shall meet the

Department's minimum technical standards.

The Department may require that the geology

of each location be characterized by

continuous coring of pilot boreholes prior to

construction of monitoring wells, and, the pilot

boreholes required by the Department shall be

geophysically logged.

Determine the magnitude and probability of

actual or potential harm to public health, safety

Apdx B - 9]

6

or welfare or to the environment posed by the

threatened or actual release of hazardous

substance from the site. This shall include, but

not be limited to the collection and analysis of

water samples taken from municipa! and

private drinking water wells in the plume

Identify and evaluate appropriate response

measures to prevent or minimize future

releases and mitigate any releases which have

already occurred

Collect and evaluate the information necessary

to prepare a Remedial Action Plan (RAP) in

accordance with the requirements of Health &

Safety Code Section 25356 |

The RI workplan shall also include provisions

for quarterly monitoring of all groundwater

monitoring wells installed by the Responsible

Apdx B - 92

Parties. At a minimum, the samples shall be

analyzed for the following purgeable

halocarbons:

fe) Trichloroethylene (TCE)

O Perchloroethylene (PCE)

fo) 1,1, Dichloroethylene (DCE)

O Trans 1,2 Dichloroethylene

O Cis 1,2 Dichoroethylene

The Department also reserves the right to

require the Responsible Parties to analyze for

any additional substances as warranted.

The RI workplan shall include measures to

evaluate the impact of water level changes an

plume migration and direction These

provisions shall include at a minimum monthly

measurements of water level elevations.

Responsible Parties shall provide a monthly

Apdx B - 93

report providing water elevations and contour

maps for each aquifer

9 Collect soil samples on the Site to determine

the extent of contamination from toxic metals

including lead.

D. Field Sampling Plan. The field sampling plan shall

include:

I. Sampling objectives

2. Sample location and frequency

3. Sample designation or numbering system

4 Detailed specification of sampling equipment

and procedures

. Sample handling and analysis including

preservation methods, shipping requirements

and holding times

6. Management plan for wastes generated

E Quality Assurance Project Plan. The plan shall

Apdx B - 94

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Project organization and responsibilities.

Quality assurance objectives for measurement

including accuracy, precision, and method

detection limits. Selection of analytical

methods shall consider obtaining detection

limits at or below health detection levels for

environmental media.

Sampling procedures

Sample custody procedures and

documentation.

Field and laboratory calibration procedures.

analytical procedures.

Laboratory to be used certified pursuant to

Health and Safety code Section 25198.

Procedures used to assess data (precision,

accuracy and completeness) and corrective

Apdx B - 95

actions.

9 Reporting procedure for measurement system

performance and data quality.

Health and Safety Plan. The Health and Safety Plan

shall include the following as a revised resubmittal for

the next phase of activities:

The name of a site health and safety officer

and the names of key personnel and alternates

responsible for site safety and health

to

A health and safety risk analysis for existing

site conditions, and for each site task and

operation

we

Employee training assignments.

4 A description of personal protective equipment

to be used by employees for each of the site

tasks and operations being conducted

5 Medical surveillance requirements

Apdx B - 96

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A description of the frequency and types of air

monitoring, personnel monitoring, and

environmental sampling techniques and

instrumentation to be used.

Site control measures.

Decontamination procedures.

Standard operating procedures for the site.

A contingency plan that meets the

requirements of 29 CFR 1910.12 0 (1) (1) and

(1) (2).

Entry procedures for confined spaces.

Schedule. A schedule which provides specific time

frames and dates for completion of each activity and

report conducted or submitted under the RI/FS

Workplan including submittal of the Remedial

Investigation Report, Baseline Risk Assessment and

Feasibility Study Report in compliance’ with

Apdx B - 97

paragraphs 4.7, 4.8, and 4.9 of this Order

4.5 RI/ES Workplan Implementation. Responsible Parties

shall implement the RI/FS Workplan as approved by the

Department in accordance with the approved schedule

4.6 Public Participation Plan (Community Relations). The

Responsible Parties shall prepare and submit within 120 days

for Department review and approval, a Public Participation

Plan (PPP) which describes how, under the Order, the public

and the adjoining community will be kept informed of

activities conducted at the Site and how the Responsible

Parties will be responding to inquiries from concerned citizens.

The PPP must be developed in accordance with the H&SC

Section 25356.1 et. seq. , and the Department's Public

Participation Policy and Guidance Manual.

4.7 Remedial Investigation (RI) Report. The RI

Report shall be prepared and submitted by Responsible Parties

to the Department for review and approval in accordance with

Apdx B - 98

the approved RI/FS Workplan schedule. The purpose of the

RI is to collect data necessary to adequately characterize the

site for the purposes of defining risks to public health and the

environment and developing and evaluating effective remedial

alternatives. Site characterization may be conducted in one or

more phases to focus sampling efforts and increase the

efficiency of the investigation. The Responsible Parties shall

identify the sources of contamination and define the nature,

extent, and volume of the contamination. Using this

information the contaminant fate and transport shall be

evaluated. The RI Report shall contain

A Site Physical Characteristics. Data on the

physical characteristics of the site and

surrounding area should be collected to the

extent necessary to define potential transport

pathways and receptor populations and to

provide sufficient engineering data for

Apdx B - 99

development and screening of remedial action

alternatives. The data shall include

Current and historical surface features

including facility dimensions and

locations (buildings. tanks, piping,

etc.), surface disposal areas, fencing,

property lines and _ utility _ lines,

roadways and railways, drainage

ditches, leached springs, surface water

bodies, vegetation, topography.

residences, and commercial buildings

The data may include historical

photographs, past topographic

surveys, operational records, and

information obtained from interviews

with owners, operators, local

residents, and local regulatory

Apdx B - 100

to

agencies

Regional and site geology including

the location and characteristics of

surface Be: bodies, stratigraphic

geologic cross-sections and fence

diagrams, description of drainage

patterns, surface water/groundwater

relationships and water quality.

Characteristics and chemistries of

surface soils and vadose zone.

Surface water hydrology including the

location and characteristics of surface

water bodies, description of drainage

patterns, surface water/groundwater

relationship and water quality.

Site hydrogeology including

groundwater occurrence, movement,

_Apdx B - 101

recharge/discharge and quality and

aquifer characteristics

6 Meteorology as reiated to atmospheric

transport and health and safety .

~

Human populations and land use of

people potentially exposed

8 Ecological information including

ecosystem components and

characteristics, critical habitats, and

biocontamination

B Sources of Contamination Contamination

sources (including heavily contaminated

media) shall be defined. The data shall include

the source locations, type of containment.

waste characteristics, and site features related

to contaminant migration and human exposure

C. # Nature and Ex f Contaminati

Apdx B - 102

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D

Contaminants shall be identified and the

horizontal and vertical extent of contamination

shall be defined in soil, groundwater, surface

water, air. biota and facilities. Spatial and

temporal trends. shall be _ evaluated

Responsible Parties shall create maps showing

iso-concentration lines of contaminants in

soils, soil gas, and groundwater in each

aquifer

Recommendations for additional Remedial

Investigations. The RI Report shall include

recommendations for additional remedial

investigations to fully characterize the lateral

and vertical extent of contamination in the soil

and groundwater. A new RI sampling plan

shall be submitted and a new workplan and

schedule provided pursuant to paragraph 4.5

Apdx B - 103

48 Baseline Risk Assessment. The responsible

parties shall submit a Baseline Risk Assessment Report for

Department review and approval within 120 days from the

submittal of the RI report. The Report shall be prepared

consistent with EPA guidance: Risk Guidance for Superfund,

Volume |, Human Health Evaluation Manual, December

1989, and Risk Assessment Guidance for Superfund, Volume

2, Environmental Evaluation Manual, March 1989. The

Baseline Risk Assessment Report shall include the following

components

A. Contaminant Identification. Screen

characterization data to identify contaminants

of concern and, if useful, "indicator chemicals"

as discussed in EPA RI/FS guidance

B. Environmental Evaluation. An ecological

assessment consisting of.

l Identification of sensitive environments

Apdx B - 104

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and rare, threatened, or endangered

species and their habitats

t2

As appropriate, ecological

investigations to assess the actual or

potential effects an the environment

and/or develop remediation criteria.

Exposure Assessment. The objectives of an

exposure assessment are to identify actual or

potential exposure pathways to characterize

the potentially exposed populations, and to

determine the extent of the exposure

Toxicity Assessment. Evaluate the types of

adverse health or environmental effects

associated with and multiple chemical

exposures, the relationship between magnitude

of exposures and adverse effects, and related

uncertainties such as the weight of evidence

Apdx B - 105

for a chemical's potential carcinozenicity in

humans

E Risk Characterization. Characterization of the

potential risks of adverse health or

environmental effects for each of the exposure

scenarios derived in the exposure assessment

49 Feasibility Study Report. The Feasibility

Study (FS) Report shall be prepared and submitted by

Responsible Parties to the Department for review and

approval, in accordance with the approved RI/FS Workplan

schedule. The FS Report shall summarize the results of the RI

including the following

A Documentation of all treatability studies

conducted

B Development of medium specific or operable

unit specific remedial action objectives

including ARARs

Apdx B - 106

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Identification and screening of general

response actions, remedial technologies, and

process options on a medium and/or operable

unit specific basis

Evaluation of alternatives based on the criterta

contained in the NCP and H&SC Section

25356.1 including

| Overall protection of human health and

the environment

tJ

Compliance with ARARs

iP)

Long term effectiveness and

performance

4 Reduction of toxicity, mobility, or

volume through treatment

‘AN

Short term effectiveness

6 Implementability based administrative

feasibility

Apdx B - 107

z; Cost

8. State and local agency acceptance

9. Community acceptance

E Proposed remedial actions.

4.10 Remedial Action Plan. No later than 45 days

after Department approval of the FS Report, Responsible

Parties shall prepare and submit to the Department for review

and approval, a draft Remedial Action Plan (RAP). The draft

RAP shall be consistent with the NCP and H&SC Section

25356.1 et seq. The draft RAP will be based on the approved

RI/FS Reports, and shall concisely and clearly set forth:

A Health and safety risks posed by the conditions

at the site.

B. The effect of contamination or pollution levels

upon present, future, and probable beneficial

uses of contaminated, polluted, or threatened

resources.

Apdx B - 108

D

The effect of alternative remedial action

measures on the reasonable availability of

groundwater resources for present, future, and

probable beneficial uses

Site specific characteristics, including the

potential for offsite migration of hazardous

substances, the surface or subsurface soil, and

the hydrogeologic conditions, as well as pre-

existing background contamination levels

Cost effectiveness of alternative remedial

action measures. Land disposal shali not be

deemed the most cost-effective measure

merely on the basis of lower short-term cost

The potential environmental impacts of

alternative remedial action measures,

including, but not limited to, land disposal of

the untreated hazardous substances as opposed

Apdx B - 109

to treatment of the hazardous substances to

remove or reduce its volume, toxicity, or

mobility prior to disposal.

G. A statement of reasons setting forth the basis

for the removal and remedial actions selected.

The statement shall include an evaluation of

each propused alternative submitted and

evaluate the consistency of the removal and

remedial actions proposed by the plan with the

federal regulations and factors specified in

subdivision (c) of H& SC Section 25356. 1.

H A schedule for implementation of all proposed

remedial actions

In conjunction with the Department, the

Responsible Parties shall implement the public

review process specified in H&SC Section

25356. 1(d)(1) et seq

Apdx B - 110

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Following the Department's review of the

input obtained from the public review process,

the Department will specify to the Responsible

Parties changes to be made in the RAP. The

Responsible Parties shall modify the document

in accordance with the Department's

specification and submit a final RAP within 15

days of Department's comments.

4.11 Preparation of Remedial Action Workplan and

Design (RAWD). Within 90 days after Department approval

of the final RAP, in accordance with H&SC Section 25356.1,

Responsible Parties shall submit to the Department for review

and approval a detailed RAWD describing the implementation

of the final RAP containing the following elements:

A. Design criteria and final plans and

specifications for facilities to be constructed

B. Description of equipment to be used to

Apdx B - 111

G

excavate, handle, and transport contaminated

material

A field sampling plan addressing sampling

during implementation and to confirm

achievement of the performance objectives of

the RAP

A transportation plan identifying routes of

travel and final destination of wastes generated

and disposed (if applicable).

An updated health and safety plan addressing

the implementation activities.

Identification of any necessary permits and

agreements.

An operation and maintenance plan for

facilities to remain in operation after the initial

construction period including a proposal for

ongoing monitoring (e.g., groundwater).

Apdx B - 112

H. A schedule for implementation of the remedial

action

4.12 Deed Restrictions. Responsible Parties shall sign

and record deed restrictions as specified in the final RAP and

approved by the Department

4.13 Implementation of Final Remedial Action Plan.

Upon Department approval of the RAWD, Responsible

Parties shall implement the final RAP as approved, in

accordance with the approved RAWD.

4.14 Operation and Maintenance. Responsible Parties

shall be responsible for all operation and maintenance

requirements in accordance with the final RAP and approved

RAWD

4.15 Changes During Implementation of the Final

RAP. During the implementation of the final RAP and

RAWD, the Department may _ specify such additions,

modifications. and revisions to the RAWD as deemed

Apdx B - 113

necessary to protect public health and safeiy or the

environment or to implement the RAP

416 Endangerment During Implementation. In the

event that the Department determines that any circumstances

or activities (whether or not pursued in compliance with this

order) are creating an imminent or substantial endangerment

to the health or safety of people on the Site or in the

surrounding area or to the environment, the Department may

order Responsible Parties to stop further implementation of

this Order for such period of time as needed to abate the

endangerment. Any deadline in this Order directly affected by

a Stop Work Order, under this section, shall be extended for

the term of the Stop Work Order

4.17 Discontinuation of Remedial Technology, Any

remedial technology employed in implementation of the final

RAP shall be left in place and operated by Responsible Parties

until and except to the extent that the Department authorizes

Apdx B - 114

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Responsible Parties in writing to discontinue, move or modify

some or all of the remedial technology because Responsible

Parties have met the criteria specified in the final RAP for its

discontinuance or because the modifications would better

achieve the goals of the final RAP

4.18 Project Coordinator. Within 15 days of the

effective date of this Order, Responsible Parties shall submit

to the Department in writing the name, address, and telephone

number of a Project Coordinator whose responsibilities will be

to receive all notices, comments, approvals, and other

communications from the Department to Responsible Parties.

4.19 Project Engineer/Geologist. The work

performed pursuant to this Order shall be under the direction

and supervision of a qualified professional engineer or a

registered geologist in the State of California, with expertise

in hazardous waste site cleanup. Within 15 calendar days of

the effective date of this order, Responsible Parties must

Apdx B- 115

submit: a) The name and address of the project engineer or

geologist chosen by the Responsible Parties; and b) in order to

demonstrate expertise in hazardous waste cleanup, the resume

of the engineer or geologist, and the statement of

qualifications of the consulting firm responsible for the work

4.20 Monthly Summary Reports. Within 30 days of

the effective date of this Order, and on a monthly basis

thereafter, Responsible Parties shall submit a Monthly

Summary Report (MSR) of its activities under the provisions

of this Order. This MSR shall describe

a) actions taken by or on behalf of Responsible

Parties during the previous calendar month;

b) actions expected to be undertaken during the

current calendar month: and

a) all planned activities for the next month, any

requirements under this order that were not

Apdx B - 116

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completed, and any problems or anticipated

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problems in complying with this Order. The

MSR shall be received by the Department by

the 5th day of each month

4.21 Quality Control/Quality Assurance (OC/OA)

All sampling and analysis conducted by Responsible Parties

under this Order shall be performed -- in accordance with

QC/QA procedures submitted by Responsible Parties and

approved by the Department pursuant to this order

4.22 Submittals All submittals and notifications from

Responsible Parties required by this order shall be sent

simultaneously to

Mr. ValF. Siebal

Regional Administrator

Attention: Gene Riddle

Department of Toxic Substances Control

Apdx B - 117

10151 Croydon Way, Suite 3

Sacramento, California 95827

William Crooks

Executive Officer

Regional Water Quality Control Board

3443 Routier Road

Sacramento, California 95827

Dr. Chester Ward

Butte County Health Department

7 County Center Drive

Oroville, California 95965

4.23 Communications All approvals and decisions of

the Department made regarding submittals and notifications

will be communicated to Responsible Parties in writing by the

Regional Administrator, Department of Toxic Substances

Control, or his/her designee. No informal advice, guidance,

suggestions or comments by the Department regarding

Apdx B - 118

reports, plans, specifications, schedules or any other writings

by Responsible Parties shall be construed to relieve

Responsible Parties of the obligation to obtain such formal

approvals as may be required

4.24 Department Review and Approval, If the

Department determines that any report, plan, schedule or

other document submitted for approval pursuant to this Order

fails to comply with this Order or fails to protect public health

or safety or the environment, the Department may:

A Modify the docui.ent as deemed necessary and

approve the document as modified or:

B Return comments to Responsible Parties with

recommended changes and a date by which

Responsible Parties must submit to the

Department a revised document incorporating

the recommended changes or:

C In cases where the document fails to comply

Apdx B - 119

with this order, make a determination of

noncompliance, pursuant to H&SC Section

p p

4.25 Liability. Nothing in this order shall constitute

or be construed as a satisfaction or release from liability for

any conditions or claims arising as a result of past, current or

future operations of Responsible Parties. Nothing in this

Order is intended or shall be construed to limit the rights of

any of the parties with respect to claims arising out of or

relating to the deposit or disposal at any other location of

substances removed from the site. Nothing in this Order is

intended or shall be construed to limit or preclude the

Department from taking any action authorized by law to

protect public health or safety or the environment and

recovering the cost thereof. Notwithstanding compliance with

the terms of this Order, Responsible Parties may be required

to take further actions as are necessary to protect public health

Apdx B - 120

and the environment

4.26 Site Access. Access to the site and laboratories

used for analyses of samples under this Order shall be

provided at all reasonable times to employees, contractors,

and consultants of the Department. Nothing in this paragraph

is intended or shall be construed to limit in any way the right

of entry or inspection that the Department or any other agency

may otherwise have by operation of any law. The Department

and its authorized representatives shall have the authority to

enter and move freely about ail property at the site at all

reasonable times for purposes including, but not limited to

inspecting records, operating logs, sampling and analytic data,

and contracts relating to this site, reviewing the progress of

Responsible Parties in carrving out the terms of this Order:

conducting such tests as the Department may deem necessary;

_and verifying the data to the Department by Responsible

Parties

Apdx B - 121

427 Sampling, Data and Document Availability.

Responsible Parties shall permit the Department and its

authorized representatives to inspect and copy all sampling,

testing, monitoring or other data generated by Responsible

Parties or on Responsible Parties' behalf in any way pertaining

to work undertaken pursuant to this Order. Responsible

Parties shall inform the Department at least 5 days in advance

of all field sampling under this order, and shall allow the

Department and its authorized representatives to take

duplicates of any samples collected by Responsible Parties

pursuant to this Order Responsible Parties shall maintain a

central depository of the data, reports, and other documents

prepared pursuant to this Order. All such data, reports and

other documents shall be preserved by Responsible Parties for

a minimum of six years after the conclusion of all activities

under this order. If the Department requests that some or all

of these documents be preserved for a longer period of time,

Apdx B - 122

MRSA i pee nail aeciaiea

Responsible Parties shall either comply with that request or

deliver the documents to the Department, or permit the

Department to copy the documents prior to destruction

Responsible Parties shall notify the Department in writing, at

least six months prior to destroying any documents prepared

pursuant to this Order

4.28 Government Liabilities. The State of California

shall not be liable for any injuries or damages to persons or

property resulting from acts or omissions by Responsible

Parties, or related parties specified in paragraph 4.39 in

carrying Out activities pursuant to this order, nor shall the

State of California be held as a party to any contract entered

into by Responsible Parties or its agents in carrying out

activities pursuant to this Order

4.29 Additional Enforcement Actions. By issuance of

this order, the Department does not waive the right to take

any further enforcement actions.

Apdx B - 123 ‘

4.30 Incorporation of Plans and Reports. All plans,

schedules, reports, specifications and other documents that

require Department approval and are submitted by

Responsible Parties pursuant to this order are incorporated in

this Order upon approval by the Department, and shall be

implemented by Responsible Parties as approved) Any

noncompliance with the documents incorporated in this Order,

shall be deemed a failure or refusal to comply with this order

4.31 Extension Requests. If Responsible Parties are

unable to perform any activity or submit any document within

the time required under this Order, Responsible Parties may,

prior to expiration of the time, request an extension of the

time in writing The extension request shall include a

justification for the delay. All such requests shall be in

advance of the date on which the activity or document is due

432 Extension Approvals. If the Department

determines that good cause exists for an extension, it will

Apdx B - 124

grant the request and specify a new schedule in writing

Responsible Parties shall comply with the new schedule

4.33 Cost Recovery. Responsible Parties are liable for

any and all costs, without limitation, incurred by the

Department in responding to a release or threatened release of

hazardous substances at or from the site, pursuant to Section

25360 of the H&SC and other applicable provisions of law

Cost recovery may also be pursued by the Department under

CERCLA

4.34 Future Costs. With respect to the Department's

review of activities conducted by the Responsible Parties

pursuant to this Order, the Responsible Parties shall pay all

fees pursuant to the H&SC Section 25343 when such fees are

due, in accordance with the provisions of the H&SC. The

Department reserves any and all rights to recover any and all

costs, pursuant to H&SC Section 25360 and other applicable

state and federal laws, expended by it in responding to a

Apdx B - 125

release or threatened release of hazardous substances at or

from the site, including but not limited to oversight costs,

which exceed the fees paid by the Responsible Parties under

H&SC Section 25343

435 Penalties and Punitive Damages for Non-

compliance. Responsible Parties may be liable for penalties of

up to $25,000 for each day they refuse to comply with this

Order and for punitive damages up to three times the amount

of any costs incurred by the Department as a result of their

failure to comply, pursuant to H&SC Sections 25359 and

25367(c)

436 Severability. The requirements of this order are

severable, and Responsible Parties shall comply with each and

every provision hereof, notwithstanding the effectiveness of

any other provision

4.37 Modifications. The Department reserves the

right to unilaterally modify this Order. Any modification to

Apdx B - 126

aie re es ce er i earn

Meee eee | a

ie is eat ny 3s

BAG er Pech ce ee

this order shall be effective upon issuance and deemed

incorporated in this order.

4.38 Time Periods. Unless otherwise specified, time

periods begin from the effective date of this Order and "days"

means calendar days. The effective date of this order is the

date it is served upon you

4.39 Parties Bound. This order applies to and is

binding upon Responsible Parties, and its officers, directors,

agents, employees, contractors, consultants, receivers,

trustees, successors and assignees, including but not limited

to, individuals, partners, and subsidiary and parent

corporations, and upon any successor agency of the State of

California that may have responsibility for and jurisdiction

over the subject matter of this order.

Date of Issuance /s/ Val FE. Siebal

Val F. Siebal

Regional Administrator

Department of Toxic Substances Control

Region |

Apdx B - 127

APPENDIX C

RELEVANT EVIDENCE

SSO

a ae SSS en ta eee eee SE

JONATHAN S LEO - BAR NO. 80307

JOSEPH J ARMAO - BAR NO. 129577

DEBORAH A SIVAS - BAR NO. 135446

ANN G GRIMALDI - BAR NO. 160893

HELLER, EHRMAN, WHITE & MCAULIFFE

333 Bush Street

San Francisco. California 94104-2878

on Aen Aen |

Telephone: (415) 772-6000

Attornevs for Defendants

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

STATE OF CALIFORNIA,

on behalf of the California

Department of Toxic

Substances Control

Plaintiff,

ALBERT CAMPBELI

Individually and as

Trustee of the

VICTOR MUSCAT

TESTAMENTARY

TRUSTS and Executor

No. CIV-S-93 604 GEB JFM

DECLARATION OF JAY

LUCAS IN SUPPORT OF

DEFENDANT'S

OPPOSITION TO

MOTION FOR

SUMMARY

JUDGMENT AND

INJUNCTIVE RELIEF

Date: July 19, 1993

Apdx C - 128

of the ESTATE OF

VICTOR MUSCAT,

CHARLES TACKMAN,

Time: 9:00 a.m.

)

)

)

Individually and as ) Court: Hon. Garland E.

Trustee of the ) Burell, Jr.

VICTOR MUSCAT )

TESTAMENTARY )

TRUST and Executor )

of the ESTATE OF )

VICTOR MUSCAT, )

Defendants. )

1, JAY LUCAS, declare as follows:

1. 1am employed with the environmental engineering

firm of Brown and Caldwell Consultants ("BCC"), where |

function as the principal geologist and project manager on

behalf of the Victor Muscat Trust (the "Trust") for the

environmental investigation being conducted pursuant to the

California Department of Toxic Substances Control Imminent

or Substantial Endangerment and Remedial Action Order,

Docket No. I/SE 91/92-007 (the "Order") in connection with

the property located at 365 East 20th Street in Chico,

Apdx C - 129

California (the "Property"). | offer this declaration in support

of defendants’ opposition to plaintiffs motion for summary

judgment and injunctive relief. The matters set forth in this

declaration are stated on my personal knowledge and belief

and if called upon to testify, | could and would testify

competently as to them.

2. 1 joined BCC as a senior geologist in 1989. | am

currently the Environmental Services Department Manager of

BCC’s Sacramento, California office. In that position, my

responsibilities include technical responsibility for project

quality assurance and control and overall direction of staff in

conducting projects. From 1986 until 1989, I was employed _

as an associate geologist with the Sacramento regional office

of the California Department of Health Services, Toxic

Substances Control Division I (predecessor to the

Department of Toxic Substances Control, together collectively

referred to hereinafter as the "Department"). During that time,

Apdx C - 130

| reviewed and interpreted work performed by other

professional geologists and consulting firms, including the

groundwater investigation undertaken by Metcalf & Eddy for

the Chico, California area, tor which | was the Department's

project manager until approximaiely 1988. Prior to joining

the Department, | was employed from 1978 through 1986 as

a geologist in the mining industry, where my principal

responsibility was for investigation of geologic and

hydrologic hazards and environmental conditions associated

with the mining industry

3. | hold a Bachelor of Science degree in geology

from California State University at Sacramento and |

completed graduate work at the Colorado School of Mines

and the University of Colorado. I have been a Registered

California Geologist (No 4301) since 1986 and a California

Certified Engineering Geologist (No. 1436) since 1988. I also

have completed numerous short courses and seminars in

Apdx C - 131

I

I ee a ee

ee eee eee ee eee

hydrology, geology and hazardous waste investigation

4. I have served as the Trust's designated project

manager for the environmental investigation of the Property

since the Trust commenced this investigation in 1989. In that

capacity, I have supervised the remedial investigation of soil

and groundwater on the Property, as well as the installation

and sampling of groundwater monitoring wells downgradient

of the Property and the sampling of private residential wells in

the Stanley Park Subdivision located approximately one mile

southwest of the Property. I also have reviewed the results of

investigative work undertaken by the Department's consultant

Metcalf & Eddy, by VIC, Inc.’s consultant Environmental

Strategies Corporation, by the Union Pacific Railroad

Company’s consultant USPCI Remedial Services, and by

Louisiana-Pacific's consultant CH2M Hill. Based on this

review, | am not aware of any monitoring wells installed by

the Department or its consultants in connection with the

Apdx C - 132

investigation of this matter.

5. BCC has investigated groundwater downgradient

of the Property to a depth of approximately 200 feet below

ground surface ("bgs"). The results of this investigation

indicate that a complex groundwater flow regime exists in this

area. Groundwater in the area of the investigation principally

flows through three zones: a shallow zone (20 to 50 feet bgs),

an intermediate zone (85 to 140 feet bgs) and a deep zone

(150 to 180 feet bgs)) These zones are illustrated on the

preliminary lithologic cross-section prepared by BCC on the

basis of soil ‘boring logs from this area, a true and correct copy

of which is attached hereto as Exhibit A. Exhibit A illustrates

the geologic configuration of soils as one moves from the

Property (on the far nght side of the cross section) past the L-

P facility (in the center of the cross-section) toward the

Stanley Park Subdivision (on the far left end of the cross-

section). Areas shaded in blue indicate the presence of

Apdx C - 133

course-grained material such as sandy gravel or gravel,

commonly known as aquifers. Areas shaded in purple indicate

the presence of fine-grained material such as sandy silts or

silts, commonly known as aquitards. In general, groundwater

and contaminants move freely through the porous materials

found in aquifers, but do not migrate freely through low

permeability aquitards. Between the Property and the former

Louisiana-Pacific ("L-P") facility, which is _ located

approximately one-half mile southwest of the Property,

aquitards separate the shallow and intermediate zones and the

intermediate and deep zones. Beneath the L-P property,

however, the intermediate and deep zones do not appear to be

separated by an aquitard. The existing data indicates that a

high vertical gradient is not present uniformly across the entire

"plume" and that the hydraulic connection between the

contaminant plume and water pumped from California Water

Service Well No. 51 has not yet been established.

Apdx C - 134

6. As part of its analysis of the groundwater regime in

this area, BCC has developed preliminary groundwater

contour maps for the shallow, intermediate and deep zones

which show the general direction of groundwater flow in each

zone. Copies of these maps are attached hereto as Exhibit B

These contour maps indicate that groundwater in the shallow

and intermediate zones is flowing in a_ west-southwest

direction. Water level measurements in the deep zone indicate

that there is a divide in groundwater flow in this zone near the

L-P facility. Deep zone groundwater east of the L-P site

flows in an east-northeast direction, while deep zone

groundwater beneath the L-P site flows in a due west

direction. Based on water level data which has been

developed by BCC, I conclude that pumping of municipal and

other water supply wells in southeastern Chico is impacting

the groundwater direction and flow rates in this area. In

addition, the downward vertical gradient measured in several

Apdx C - 135

areas of the investigation may be caused by pumping or

intermittent pumping of supply wells. For this reason, the

groundwater flow in this area presents technically complex

questions which have not yet been fully resolved by the

ongoing investigation

7. BCC has now completed installation of, and one or

more rounds of sampling for, all eight of the three-well

clusters of groundwater monitoring wells (for a total of 24

monitoring wells) required by the Department pursuant to the

Order The preliminary results of this groundwater

investigation are summarized on the map attached hereto as

Exhibit C. Analytical results for samples obtained from

recently installed monitoring well clusters labeled 6 and 8 on

Exhibit B have not yet been received from the laboratory, but

BCC expects to receive this information within the next few

weeks. Groundwater samples collected by BCC from the

monitoring wells in March and April 1993 demonstrate that

Apdx C - 136

the groundwater throughout the shallow zone between the

Property and the Stanley Park Subdivision contains very low

levels of TCE, ranging trom non-detectable to 1.2 parts per

billion ("ppb"). These levels are well below the drinking water

standard of 5.0 ppb TCE. Analytical results indicate that TCE

is present in the intermediate zone at concentrations ranging

from non-detectable to 78 ppb and in the deep zone at

concentrations ranging from non-detectable to 23 ppb. These

results also demonstrate that TCE concentrations are not

continuous throughout the length of the "plume" and do not

necessarily increase with depth, but rather are generally

highest in the intermediate zone

8. In addition, | am aware that a separate groundwater

investigation pursuant to a different cleanup order issued by

the Department ts in progress at the L-P facility and that the

results of this ongoing investigation reveal the presence of

CE beneath that site. Based upon the analytical results of

Apdx C - 137

Bic a een

mmm Ee ta a a gS SGT

BCC’s investigation and upon information I have received

through the Metcalf & Eddy report regarding the L-P

investigation, | have developed a preliminary TCE

concentration contour map for the intermediate zone which 1s

attached hereto as Exhibit D. That map demonstrates that the

highest concentration of TCE discovered to date from the

investigation of this area was found in a grab sample collected

from the "Apiary Well" located on the L-P property, where

TCE was encountered at a level (142 ppb) two to three times

greater than anywhere else yei investigated. Based on the

available data, it is not possible to determine from what

groundwater zone this Apiary Well sample was obtained. It

is my understanding that the L-P investigation is continuing

and that further groundwater monitoring well data wili be

available in the near future

9 In my opinion, the TCE concentration contour lines

for the intermediate/deep zone bencath the L-P site are typical

Apdx C - 138

of a contamination pattern that would result from a source of

TCE at that site’ I have reviewed the Source Evaluation

Report prepared by CH2M Hill in connection with the L-P

site, a true and correct copy of which is attached hereto as

Exhibit E. The Source Evaluation Report Indicates that |

TCE was used and stored at the former L-P facility and that

solvents were stored in a 10,000-gallon underground tank

which was connected by pipeline to a leaking spigot that

required repeated replacement. The report also indicates that

used solvent was disposed of between the main building and

the paint shed. Based upon these statements and the existing

analytical data, it is my opinion that former operations on the

L-P site cannot be eliminated at this time as a potential

primary source of TCE contamination found beneath and

downgradient of the L-P site. For this reason, BCC has

received permission from L-P to resample the Apiary Well as

part of its continuing investigation and will be commencing

Apdx C - 139

this work within the next few weeks. BCC intends to obtain

discrete water samples from each of the different groundwater

zones in which the Apiary Well is screened. This additional

data, together with the further analytical results anticipated

from the L-P investigation, may assist in identifying the source

of the TCE contamination beneath the L-P site. Depending

upon the results of this sampling, additional investigation in

this area may or may not be warranted

10. With respect to the Property itself, BCC and other

consultants have undertaken a limited investigation of

groundwater. TCE and other solvent concentrations in the

shallow zone beneath the Property are relatively low and do

not, by themselves, suggest a localized source of TCE

contamination. Other than limited HydroPunch data, which iS

non-repeatable and designed primarily as a reconnaissance

tool. | am not aware of any intermediate or deep zone

groundwater monitoring well data from the Property or

Apdx C - 140

immediately upgradient of the Property. In my opinion, the

absence of monitoring well data for the intermediate i“ deep

zones in the immediate vicinity of the Property, when coupled

with the uncertainty raised by the groundwater data from the

L-P facility and groundwater gradient reversals near the L-P

site, raises unanswered questions regarding the extent to

which the Property is the source of downgradient TCE

contamination in the intermediate and deep groundwater

zones

1] Upon completion of the groundwater

investigation, BCC will prepare a Remedial Investigation

Report which is intended to summarize the data developed

during this phase of work and to assist in defining the nature,

extent and source of the contamination. | currently anticipate

that this report will be completed within the next two to three

months. Until the groundwater investigation is completed and

all of the resulting data is analyzed, in my Opinion it is not

Apdx C - 141

possible to develop a technically defensible hypothesis or

conclusion regarding the source or migration of TCE

contamination discovered during BCC’s and others |

investigation of this matter

12. Based upon my familiarity with the Order and mv

communications with the Department’s project manager, it is

my conclusion that the Trust has taken the necessary steps to

remain in compliance with the Order. except with respect to

commencement of the actual construction of the drinking

water line to the Stanley Park Subdivision. where there are

approximately !84 private residential water wells. I am aware

that the private wells in this neighborhood have been

systematically sampled on three occasions. once by the

Department's consultant Metcalf & Eddy in 1991 and twice by

BCC in July 1992 and again in April and May 1993

Following the July 1992 sampling event, the Trust installed

point-of-entry-treatment-systems ("POETS") on all ten of the

Apdx C - 142

Stanley Park residential wells where TCE concentrations

exceeded the maximum contaminant level ("MCL") of 5.0 ppb

for that constituent and has authorized BCC to maintain these

POETS in effective working order. The POETS treat all

water entering the affected homes, and subsequent

confirmatory sampling by BCC of water from these ten wells

after it passes through the POETS has demonstrated that TCE

concentrations are reduced to non-detectable levels. The

analytical results from the latest sampling event are

summarized, along with results from the two previous

sampling events, in the chart attached hereto as Exhibit F

BCC is currently preparing a cover report for submittal of

these results to the Department. The most recent Stanley Park

sampling results indicate that TCE concentrations have

remained relatively unchanged since the first sampling by

Metcalf & Eddy in 1991. Only two additional wells showed

TCE concentrations in excess of the MCL and the Trust has

Apdx C - 143

authorized BCC to install POETS on those two wells. BCC

is in the process of contacting these well owners and

completing this task In addition, BCC ccnducts quarterly

sampling of four wells located on Marian Avenue in the

Stanley Park neighborhood. These wells were selected for

more frequent sampling because they are believed to be on the

leading edge of a contamination plume in this area and,

therefore, provide appropriate indicators of contaminant

migration. TCE concentrations in these four wells also has

remained relatively unchanged since 1991

13. In my opinion, the selection of a final remedy for

the groundwater contamination in the vicinity of the Stanley

Park Subdivision is premature because the remedial

investigation has not been completed and because the impact

of the remediation system proposed by L-P in connection with

its separate investigation should be taken into account in

designing the final remedy for this downgradient area. For

Apdx C - 144

|

example, if L-P installs an extraction and treatment system

upgradient of the Stanley Park Subdivision in the intermediate

zone, I believe it is likely that further migration of TCE

contamination will be substantially slowed or stopped. This

impact will, in turn, partially dictate the appropriateness of

various potential remediation approaches to the contamination

in the Stanley Park area In addition, the Deparment has

ordered the Trust to perform a baseline risk assessment to

assist in selection of the remedy. 1 nis risk assessment, which

will be based on the results of the remedial investigation after

those results are analyzed, will also be a significant factor in

the selection of a final cleanup remedy. The installation of a

permanent drinking water line to the Stanley Park Subdivision

may or may not be warranted in this case, based on the

foregoing and other considerations. In my experience, the

Department’s order to install a permanent drinking water

system as an interim removal action is highly unusual and out

Apdx C - 145

of the ordinary course for an investigation of this type,

especially where, as here, potentially affected wells are being

sampled and POETS are being installed as necessary to avoid

human exposure to contaminant concentrations in excess of

the MCL The installation of a very expensive permanent

drinking water system normally and more appropriately would

be considered at the remedy selection stage.

14. To date, BCC’s services in connection with the

environmental investigation of the Property and adjacent areas

necessary to comply with the Department’s Order have a

billed value of approximately $ 800,000. The Tnust has paid

all outstanding bills from BCC for this work

I declare under penalty of perjury under the laws of the

State of California and the United States of America that the

foregoing is true and correct

Date: July 6, 1993 /s/__ Jay Lucas

JAY LUCAS

Apdx C - 146

JONATHAN S. LEO - BAR NO. 80307

JOSEPH J. ARMAO - BAR NO. 129577

DEBORAH A. SIVAS = BAR NO. 135446

ANN G. GRIMALDI - BAR NO. 160893

HELLER, EHRMAN, WHITE & MCAULIFFE

333 Bush Street

San Francisco, California 94104-2878

Telephone: (415) 772-6000

Attorneys for Defendants

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

STATE OF CALIFORNIA, ) No. CIV-S-93 604 GEB JFM

on behalf of the California _)

Department of Toxic ) SUPPLEMENTAL

Substances Control. ) DECLARATION OF JAY

Plaintiff, ) LUCAS IN SUPPORT OF

) DEFENDANT'S

V ) OPPOSITION TO

) MOTION FOR

ALBERT CAMPBELL, ) SUMMARY

Individually and as ) JUDGMENT AND

Trustee of the ) INJUNCTIVE RELIEF

VICTOR MUSCAT )

TESTAMENTARY )

TRUSTS and Executor ) Date: July 26, 1993

Apdx C - 147

of the ESTATE OF

VICTOR MUSCAT.

CHARLES TACKMAN.

Time: 1:30 pm

Court: Hon. Garland E

Burell, Jr

Individually and as

)

)

)

)

Trustee of the )

VICTOR MUSCAT )

TESTAMENTARY )

TRUST and Executor )

of the ESTATE OF )

VICTOR MUSCAT, )

Defendants. )

I, JAY LUCAS, declare as follows

1. am employed with the environmental engineering

firm of Brown and Caldwell Consultants (“BCC”), where |

function as the principal geologist and project manager on

behalf of the Victor Muscat Trust (the “Trust”) for the

environmental investigation being conducted pursuant to the

California Department of Toxic Substances Control Imminent

or Substantial Endangerment and Remedial Action Order.

Docket No. I/SE 91/92-007 (the "Order") in connection with

the property located at 365 East 20th Street in Chico.

Apdx C - 148

California ("Victor Industries Property"). I offer this

declaration in support of defendants’ supplemental opposition

to plaintiff's motion for summary judgment and injunctive

relief. The matters set forth in this declaration are stated on

my personal knowledge and belief and if called upon to testify,

| could and would testify competently as to them

2. | joined BCC as a senior geologist in 1989. | am

currently the Environmental Services Department Manager of

BCC’s Sacramento, California office. In that position, my

responsibilities include technical responsibility for project

quality assurance and control and overall direction of staff in

conducting projects. From 1986 until 1989, I was employed

as an associate engineering geologist with the Sacramento

regional office of the California Department of Health

Services, Toxic Substances Control Division (predecessor to

the Department of Toxic Substances Control, together

collectively referred to hereinafter as the "Department")

Apdx C - 149

During that time, I reviewed and interpreted work performed

by other professional geologists and consulting firms,

including the groundwater investigation undertaken by Metcalf

& Eddy for the Chico, California area, for which I was the

Department's project manager until approximately 1988. Prior

to joining the Department, I was employed from 1978 through

1986 as a geologist in the mining industry, where my principal

responsibility was for investigation of | geologic and

hydrologic hazards and environmental conditions associated

with the mining industry.

3. I hold a Bachelor of Science degree in geology

from California State University at Sacramento and |

completed graduate work at the Colorado School of Mines

and the University of Colorado. I have been a Registered

California Geologist (No. 4301) since 1986 and a California

Certified Engineering Geologist (No. 1436) since 1988. I

also have completed numerous short courses and seminars in

Apdx C - 150

hydrology, geology and hazardous waste investigation

4. I have served as the Trust’s designated project

manager for the environmental investigation of the Victor

Industries Property since the Trust commenced _ this

investigation in 1989 and, in that capacity, have supervised

BCC's remedial investigation of soil and groundwater on and

downgradient of the property. In connection with this

investigation, BCC periodically reviews results of investigative

work undertaken by other parties in the vicinity of the Victor

Industries Property as those results bear on BCC's ongoing

investigation. Although I have previously reviewed some of

the activities undertaken by CH2M Hill in connection with the

investigation of the Louisiana-Pacific ("L-P") facility

. southwest of Victor Industries, that review has not focused on

or included all of the analytical results obtained with respect

to the L-P site.

5. In response to the Department's motion for partial

Apdx C - 15]

summary judgment and injunctive relief, in which the State of

California requested an express judicial finding that the Victor

Industries Property caused the contamination discovered in

the Stanley Park Subdivision, | reviewed the information

provided in CH2M Hill’s April 1990 Source Evaluation

Report for the L-P site and in Metcalf & Eddy’s June 30, 1992

Phase III Remedial Investigations Report for the Chico area

Based upon the information contained in these reports and my

knowledge of BCC's ongoing investigation, | developed

potential concentration contour lines and concluded that one

technically plausible and defensible interpretation of the

existing data is that the L-P facility is or was a potential source

of trichloroethylene ("TCE") contamination in groundwater

beneath the L-P facility and downgradient of that facility

6. At the time I completed my first declaration, much

of the information now attached to the Declaration of

Fernand

This text is long and has been trimmed here. Open the source document for the complete record.