# Petition for Writ of Certiorari — Campbell v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1683%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 822 ## Text 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 ~ 2 ¢ % 4 2 4 & Bd 3 a 2 % z 5 Br % x a 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 5 - ¥ = x a Es | FE Feces 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 wT PD ere ee eee NS oa ae ee pea ee +; gc lca? tae SOIR Nat Fo Ce er ne AO On at Eat Oo Re aa RR eis 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 ‘ 4 j i 5 ’ 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