HomeMy WebLinkAboutNorthern California River Watch 2010-04-12SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement is made and entered on A I r 2 L 2010
("Effective Date"), by and between the City of.Ukiah ("City"), a general law municipal
corporation, and Northern California River Watch ("River Watch"), a California non-profit
public benefit corporation in good standing. The City and River Watch will hereinafter be
referred to collectively as the "Parties."
RECITALS
The Parties adopt the following recitals and agree and affirm that construction of this
Settlement Agreement ("Agreement") shall be guided thereby:
On August 14, 2009, River Watch delivered to the City a letter from the Law Office
of Jack Silver, dated August 13, 2009, as a Notice of Violations and Intent to File Suit under
the Resource Conservation and Recovery Act ("the Notice"). A true and correct copy of the
Notice is attached hereto as Exhibit A.
The Notice alleges violations by the City of Subchapter C of the Resource
Conservation and Recovery Act ("RCRA"), in connection with the City's operations at its
"corporation yard" located at 1320 Airport Road, Ukiah, CA., Mendocino County Assesor's
Parcel Numbers 003-280-05 and 003-230-28 ("the Site"), including, but not limited to, the
operation of an unpermitted hazardous waste treatment, storage and disposal site, the failure
to properly label, track and/or report the type, quantity or disposition of waste from the Site,
the failure to use a manifest system to ensure the waste generated is properly handled, stored,
treated or disposed of, the disposition of wastes off-site without compliance with the various
requirements of RCRA or with California's requirements authorized by RCRA, violations
related to underground storage tanks used at the Site to store petroleum products, the
contamination of soil and groundwater on and off-site, violations of 42 U.S.C. §
6972(a)(1)(B), governing the mishandling of hazardous waste, open dumping at the Site of
hazardous waste with resulting pollution of both groundwater and surface water, and the
ownership or operation of preferential pathways and direct conveyances for pollutants
discharge by the City at the Site which have caused the pollutants to be discharged to
groundwater and surface water via pipes, sewer lines, storm drains, utilities and similar
facilities. The notice covers the time period from August 10, 2004 through August 13, 2009,
but includes discharges of hazardous waste which occurred prior to August 10, 2004, that
may continue to contaminate soil, groundwater and surface water.
On September 30, 2009, River Watch furnished to the City a copy of a draft
Complaint for Injunctive Relief, Civil Penalties, Restitution and Remediation (Environmental
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- RCRA 42 U.S.C. 6901 et seq. ("the Complaint"), a true and correct copy of which is
attached hereto as Exhibit B. Collectively, the allegations in the Notice and the Complaint
are referred to in this Settlement Agreement as "the Claims." River Watch has not filed the
Complaint in the Northern District of California or in any other court.
Recognizing the uncertainties of litigation and wishing to resolve the differences
between the Parties, under terms that are mutually satisfactory to the Parties, the Parties have
entered into this Settlement Agreement for the purpose of resolving all claims and disputes
between the Parties which are or could have been alleged in the Notice or Complaint or
otherwise involve violations of RCRA by the City.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein, the parties agree as follows.
AGREEMENT
1. FURTHER INVESTIGATION OF PETROLEUM HYDROCARBON AND MTBE
CONTAMINATION ON AND OFF-SITE. The City will conduct the following surveys and
studies within one year of the Effective Date.
A. WATER WELL SURVEY. The City shall update the water supply well survey
conducted in 2001 by conducting a door-to-door survey of all properties, including
residential, agricultural, and commercial properties within a one-quarter (1/4) mile
radius of the Site for the presence of private water supply wells and within a one-half
(1/2) mile radius of the Site for the presence of municipal water supply wells. The
survey will determine whether private properties within the designated radius are
connected to the City's water system and, if so, whether they also have private wells
from which water is used for non -drinking purposes. Within sixty (60) days of
completing the survey, the City will supply River Watch with a list of all homes and
businesses surveyed, including those who could not be contacted or did not respond
to the survey.
B. PREFERENTIAL PATHWAY SURVEY. The City will test soil and water
for petroleum hydrocarbon and MTBE contamination in the following conduit
trenches as a study of preferential pathways in the vicinity of the Site:
(i) Utility trenches as shown on the Conceptual Site Plan ("Plan"),
attached hereto as Exhibit C;
(ii) The underground utility access boxes as shown on the Plan; and
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(iii) One sampling event each year during the first significant storm event
(first flush) over two years in the drainage ditch located to the east of
the Site, identified in Ukiah's Sensitive Receptor Study (SRS), on file
with the North Coast Regional Water Quality Control Board. The City
may also sample up gradient from the Site to determine whether
contamination is entering the ditch from an off -Site location.
C. VAPOR ENTRAPMENT STUDY. The City shall perform a vapor entrapment
study as approved and within boundaries determined by the North Coast Regional
Water Quality Control Board.
2. PAYMENT OF ATTORNEY'S FEES AND EXPENSES. Within fifteen (15) days
of the Effective Date, the City shall pay River Watch Thirty-five thousand Dollars ($35,000).
3. COMPROMISE. It is understood and agreed that this Agreement is the result of a
good faith compromise settlement of disputed claims, and that this Agreement and the
releases contained herein shall not be taken or construed to be admission of any liability,
responsibility, fault, or wrongdoing by any the City or its officers, employees, or agents, each
of whom continue to deny and disclaim any such liability, responsibility, fault or
wrongdoing. The Parties are entering into this Agreement to avoid the expense and
disruption of litigation.
4. EFFECT OF SETTLEMENT.
A. GENERAL RELEASE. Upon the Effective Date, River Watch, on behalf of
itself and its members, successors, and assigns, agrees that it releases, acquits, and
forever discharges the City, its City Council, and all employees thereof, from all
claims, rights, liabilities, and causes of action arising from soil, surface water or
groundwater contamination at or emanating from the Site which resulted or is alleged-
to
llegedto have resulted from a release of toxic or hazardous substances at the Corporation
Yard prior to the effective date of the Settlement Agreement, including, without
limitation, the Claims and all claims for violations of the Clean Water Act, the Porter
Cologne Act, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the California Hazardous
Substances Account Act, or any other federal or state law.
B. BREACH OF CONTRACT THE EXCLUSIVE REMEDY. River Watch
agrees that its exclusive remedy for a breach of this Settlement Agreement by the City
shall be a breach of contract action in which the City shall not be liable for
consequential or punitive damages. The releases set forth in this Settlement
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Agreement extend to unknown as well as known claims. River Watch hereby waives
the benefits of section 1542 of the California Civil Code, which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release which if known by him must
have materially affected the settlement with debtor.
C. COVENANT NOT TO SUE. In further consideration of the City's agreement
to enter into this Settlement Agreement, River Watch, for itself, its members,
successors and assigns, covenants and agrees not to sue or take any other steps to
enforce any claims, rights, liabilities, or causes of action released by the Settlement
Agreement. Furthermore, River Watch, for itself and its members, successors and
assigns, agrees and covenants that for a period of five (5) years from the Effective
Date, it will not file any lawsuits for any violations of the Clean Water Act, the Porter
Cologne Act, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, or the California
Hazardous Substances Account Act committed by the City, and that River Watch's
sole remedy against the City during this period shall be to enforce the Settlement
Agreement. River Watch further covenants and agrees that, at least sixty (60) days
before filing any such action to enforce the Settlement Agreement, it shall notify the
City in writing of what actions or inactions by the City it deems to be in violation of
the Settlement Agreement. Thereafter, the parties .shall meet and confer in a good
faith attempt to resolve their disputes. If the parties cannot informally resolve the
dispute, they will make a good faith effort to mediate the dispute prior to the filing of
any action to enforce the Settlement Agreement.
D. SETTLEMENT AGREEMENT MAY BE PLEADED AS DEFENSE. This
Settlement Agreement may be pleaded as a full and complete defense to, and may be
used as the basis for any injunction against, any action, suit or other proceeding which
may be instituted, prosecuted or attempted in breach of the Settlement Agreement,
whether by the parties hereto or any of River Watch's members, successors or assigns.
River Watch covenants and agrees not to cause any third party to commence a
citizen's suit under the Clean Water Act, the Porter Cologne Act, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation, and Liability Act, or the California Hazardous Substances Account
Act for any violations by the City which are subject to such suits and which occurred
prior to the Effective Date.
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5. REPRESENTATION BY COUNSEL. This Agreement is entered into freely and
voluntarily. The parties hereto acknowledge that they have been represented by counsel of
their own choice in the negotiation that preceded the execution of this Agreement, and in
connection with the preparation and execution of this Agreement. Each of the parties hereto
executes this Agreement with full knowledge of its significance and with the express
intention of effecting its legal consequences.
6. SUCCESSORS AND ASSIGNS. This Settlement Agreement shall be binding on, and
inure to the benefit of, the respective successors, successors -in -interest, agents,
representatives, employees, officers, directors, shareholders, equity holders, assigns,
assignees, subsidiaries, parents, members and all other affiliated entities ofthe Parties hereto.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the Parties hereto pertaining to the settlement of the disputes between the Parties. This
Agreement supersedes all prior and contemporaneous agreements not specifically identified
in this Agreement, and all prior representations and understandings of the parties, which are
merged into this Agreement. Each party has made its own independent investigation of the
matters settled, has been advised concerning the terms of this Agreement by counsel of its
choice, and is not relying upon any representation not specified herein.
8. CONSTRUCTION OF AGREEMENT. This Agreement is the product ofnegotiation
and preparation by and among each party hereto and its attorneys. Therefore, the parties
acknowledge and agree that this Agreement shall not be deemed to have been prepared or
drafted by one party or another, and that it shall be construed accordingly.
9. MODIFICATION OF AGREEMENT. No supplement, modification, waiver or
amendment with respect to this Agreement shall be binding unless executed in writing by the
party against whom enforcement of such supplement, modification, waiver, or amendment
is sought.
10. COUNTERPARTS OF AGREEMENT. This Agreement may be signed in
counterparts by the parties hereto and shall be valid and binding on each party as if fully
executed all on one copy.
11. SIGNATORIES' AUTHORITY. The signatories to this Agreement on behalf of all
the parties hereto warrant and represent that they have authority to execute this Agreement
and to bind the parties on whose behalf they execute this Agreement.
12. PARAGRAPH HEADINGS. Paragraph heading contained in this Agreement are
included solely for convenience and are not intended to modify, explain or to be a full or
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accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
13. NOTICE. Any notices, documents, correspondence or other communications
concerning this Agreement may be provided by personal delivery, facsimile or mail and shall
be addressed as set forth below. Such communication shall be deemed served or delivered:
a) at the time of delivery if such communication is sent by personal delivery; b) at the time
of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in
the U.S. Mail as reflected by the official U.S. postmark if such communication is sent
through regular United States mail.
IF TO RIVER WATCH:
Jack Silver
Law Offices of Jack Silver
P.O. Box 5469
Santa Rosa, CA 95402
FAX: 707-528-8675
IF TO CITY:
City of Ukiah
Attention: Tim Eriksen
Ukiah Civic Center
300 Seminary Avenue
Ukiah, CA. 95482
FAX: 707-463-6201
14. REASONABLE COOPERATION. The parties hereto shall reasonably cooperate
with each other, including executing all necessary further documents, if any, to carry out the
purpose and intent of this Agreement.
WHEREFORE, the parties have entered this Agreement on the Effective Date.
NOk1HE,RN CALIFORNI RIVER WATCH CITY OF UKIAH
By B ��'`
e Cham ers,City Manager
Its:
ATTE T
6 C9
'�---
J , 5ne Currie, City Clerk
APPROVED AS TO FORM: APPROV S TO F;Aorneyy Jac Silver, Attorney at Law Davi . port, City
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P.O., Box 5469 Santa Rosa,'Califb mi
a,954,02,
Phone 707-52,8-8175 'Fax '707-5-78-8675
]hm28845@sbeglebal.net
August 13, 2009
Via Registered Mail - Return R,,eceiptRequested
0
Ret Notice of Violati6ns,aod Intelilt to File . Saft Under the Resource
Conservation,and Recovery Act
Dear .Agency "Heads:'
NOTICE,
On behalf of -Northern California River'Watch
-
lain
Resource Conservation, and Recovery Act;:(" RCRA" ). 42 U.S.C. § 6901 et seq., in
conjunction with, continuing operations, at the .City of U44b, corporate yard located[ at 1320
Airport Road, Ukiah, CallfbtjftiA,("Sfte'').
City of` Okiah - No0ce.9f Violations — PAge 1
"immediately after such notification when :a violation of Subtitle C of RCRA is. -alleged
(subehapter TIT; 42 U.S.C'. § 6921 et.s
River Watch alleges violations of Subchapter C with regard to both a violation of:a
permit, standard, regulation, condition, requirement, prohibition or order effective under the;
RCRA, as well, as for an imminent :and substantial endangerment to human; health or the
environment.
On behalf of its rnemberS River Watch .hereby provides statutory notification to the
City of Ukiah of continuing and ongoing violations of the RCRA.
notice periods uner the MCRA, River Watch: intends to corrunenc'e a civil action againsi the
Cid of Ukiah on the following" grounds:
1.The City. o f Ukiah's use Pod ''storago ofpetroleuin products at the Site identifi'ed :xrt t%is
Notice has violated; and 'continues to violate permits,; standards., regulations,
conditions, requirements. wnd/orprohibitions effective, pursuant: to lite RCRA
regarding,storage ofpetraleuin yin underground storage tanks. ("USTs"} [4-2 U.S:C. §
City of Ukiah - Notice ofvioigions - Pale 2'
0 0
have caused
the Site' identified in thi,8 NOtice ha
2. The City of Ukiah's operations t
at
petroleum contamination of soil and,groundwater which presents an imminent and
substantial endangerment.,
to human health and the environment,, [42 U.S.C.
I. The s,,taudardjjm!.taO4Do,,or order alleged to ha-vo been violated.
The RCRA, enacted in 1976, isa- Federal law of the United, States, contained in 42
U.S.C. 0 6901-6992k. Its. goals are: to protect the public from. harm caused,, by waste
disposal, 4pencourage reu-Eie,,,reduction,,andrecy.clixiWand,VcJeanpp,-Spilled-qriinproperly,
stored, wastes.
The Environmental Protection Agency's ("EPA") wastemabagernent regulations are
codified at 40 C.F.R. §§ 239=282. Regulations, regarding management of hazardous waste
begin. at 40 CRR. §.2,60. Pursuant to. the RCRAth e5tateof-California, has enacted laws
and promulgated regulations that aro? at least,,Eks stdrxgpnt as the, federal regulations:;.
The City of Wahs'luse, and storage of waste. at the Site identifiedin this,,N.otioe-,,;.and
the disposal :,ofthose wastes. as described in this Notice,.has violated and. continues to violate
permits, standards, regulations, conditions, requirements and/or 'prohibition's effective
regarding hazardous waste. [42, U.S.C. 6972(a)(1)(A)].
Axe -ing
City of Ukiah -Watice of Violations -.Page.
The City of Ukiah's operations at the. Site identified in. this : Notice, has caused or
threatens to cause.contarnination ofsoil, groundwater, surfacewaters and residenfial.areas,,
whichcontamination presents an imminentand, substantial, endangerment to human health`
and the environment. The City of Ukiah owns or operates discreet conveyances, preferential.
pathways or wells which have contributed to the transportation, `treatYrent,, storage, or
disposal of the wastes- at the identified ,Site. [42 U.S,C. § 6,972(a)(l Y(B)J
2. The: Aetivity Alleged to Cl6IIStltUte: a- Violation,
The liability of the City, of Ukiah stems frond its ownership of the identf ed Site and
activities .conducted on. the Site by the City of Uk%ah which violate the RC and have
contributed to the past orpresent handling, storage, treatment, t ansportation,, of disposal of
or the -.environment liver Watch also alleges the.City of Ukiahto be in -violation. of°apennit
standard; regulation, condition;, requzrernont, prohibition, or girder which has become
effective pursuant, to the RCR.A. The City of Ukiah. is guilty of open durnping, as that term.
The 'City of Ukiah's past and current operations at the Site 'identified in :this Notice
violates the provisions of the RC,, -RA; 42 U. ;§ 024, wliicl governs the mishandling of
hazardous wastes. River Watch contends S.C.the City of Ukiah has inadequately maintained
City -;of Ukiali. - Notice,.of Violations -Page 4
3. The discharger responsible for the; alleged violatto.
The discharger responsi"hle for the alleged violations is the City of miah
4. The date or dates Ofviolation or, a reasonable r.-au-ge oftiates during which
the alleged activities occurred.
5. The full name, address,,And telephone number ofthe person,giving notice.
Notice as s°River Watch"'. River watch is a non-profit corporationorganized under the laws
of the State Of California, located at. 500 North Main Street, Spite .1.IU, eba�topol, A,
95472 -telephone (107) 824.4372.. Fiver mph is dedicated to bare pr�itection and
__
groundwater .i"n .,N,orthem California.,
streams and
The violations, o. the City of IJi iah as Set Earth in this 1�T 'c affect the economic
stability,;physical health and aesthetic enjoyment ofinembers-ofRiver Watch Yuko reside ancl:
City of Ukiah - Noticef YioIatians -Page 5
0
0
BACKGRQi71\TDiTS'1CtlRY
In 19$5, threei0,.µ00-gallon USTi associated piping; arid, a fuel
„
These. USTs contained regular .unleaded gasoline, pre�niuin lir'lead 16 gasvl�ne, and diesel
fuel. Do to the improper containment and installation,, these. USTs' and associated piping
discharged and continue to illegally discharge in violation' of the RCRA;;
In November 19'88, a 6,500 -gallon LIST was removed
from the eastern side of the
Street, Water, and. Sewer Departments building. The LIST was reported. to :have contained
-f l and waste oil. During the removal it was obvious tWs tank,had leafed and discharged
to the ground and groundwater; However, this leak was not ;adequately snvest
ig ted to
of gasoline were noted in soil samples collected from beneath. the LIST.
Q 1 2009 test results still show contaimination of soil and groundwater to be
exceptionally high and. an immediate.and substantial threat to health and the environment.
MTBE 62,040 µ.g11; TPl3 ;g Sz80{i µg/1j TPH-d $60 µg/1, B�TEX 77.E µg11; arid, TBA 23,400.
City of -kiah - Notkc of Violations - Page.6
Water Quality Control Plan.
REG ULATQRYSTANDARDS.
Califoraia'sWQQs' existto nsureprotectionofthe.benefteialuses'ofwater: Several
benefioial uses ofwater exist. The most stringent water quality objectives for protection of .
City ofTJiciah - Notice of Violations - Page 7
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all beneficial uses are selected as theprotective wAlternative cleanup;
ater quality criteria:
and abatement actzons.need tp be cOns derecl which evaluate the feasib
and (3 p VatPaWa IOn of bepoectve
water qu..a'lity.criteria. levels.
VIOLAAVONS
1. Permits, $tandards;aird Regulations - [42 U.&C,; §,697
Specifically, with respect'to"the Site identiffiedobovo,the City oi'Ukiahis respons%ble
for the following statutory violations:
3. Failure to properly report and Deep records of the release; in violation of 40 CFR
280.34, 28.0.50; 2$.0'.52, 280.53, 280':63(b) and California Ifealth & Safety Cade §,§
25289; 25293 and 25295(x)(:1); and;
City•ofUkiah - Notioe of Violations.- Page 8
I. �Ylisha�dling. of �azard6us W'Rste - , iJ:�.C. § 69,24 et sed.
River match alleges the City of Ukh* has at all times 'rnaterlal., engaged in the
following activities in violation of the RCRA'S waste handling provisions:
City, OfMab - Notice of Violations -
page -9
Failed to adequately maintain records ofhazardous wastes as described
which Were treated, stored or 0 in this.Notic e
Ai otherwise disposed of ,oil or o,
6,924(a)(I " I — offsite [42 U.S.C.
2. Failed, to satis;4tqO
I IMCRA
'i. jy,
,�
01oI ,inspect;:01report in,accQrdanc wI
th the provisionsof the RC A [42U.S.C.§ 6924(a)(2)],
CONTACTINFORMATION - CO EI,''OR PA
R'-IvOr Watch has retained legal counsel to represent thein in this matter.. All
cOrMnun tion s
Jca 4..hOU1dbe,,4ddre,,Ssed to:
As stated in the'NOTICE sectionabove, the requires a,private party to give
notice of the violation 60 days prior to the initiation of an actionfor violation of 'a. permit;.
standard `,regulatfon,condition, requireindnt, prohibition q7order effective underthe RCRA.
(42 US.Ic. § -69-1-!(b'),(l)(A))5 :and 90 days priornPt'io!awbpnihe."vio,
14000 , Is- alleged, to have
City Ofulpah, - N, Oxi .66. of'Violations ; p4ge 1:0.,
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occurred'before initiating an action, for an imminent and.substantial endangerment to human
health ;or the environment. [42 U.S.C. §,6,,q7
cc:, Lisa. Jackson, Administrator
U.S Enviromnental Protection agency
Ariel Rios B.uiicling;
120.0 Pennsylvania Avenue; MW
Washington, D.C. 20460
Wayne Nastri, Regional Administrator
TJ:S., Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco--, CA 941.05'
City ofWdah - Notice of violations - Page ti
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Jack Silver, Esq. SBN #160575
Law Office of Jack Silver
Post Office Box 5469
Santa Rosa, CA 95402-5469
Tel.(707) 528-8175
Fax.(707) 528-8675
Ihm28843@sbcglobal.net
Attorneys for Plaintiff
NORTHERN CALIFORNIA RIVER WATCH
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NORTHERN CALIFORNIA RIVER
WATCH, a non-profit corporation,
Plaintiff,
CITY OF UKIAH, DOES 1- 10,
Inclusive,
Defendants.
CASE NO.:
COMPLAINT FOR INJUNCTIVE RELIEF,
CIVIL PENALTIES, RESTITUTION AND
REMEDIATION
(Environmental - RCRA 42 U.S.C. 6901 et
seq.)
NOW COMES Plaintiff, NORTHERN CALIFORNIA RIVER WATCH (hereafter,
"RIVER WATCH") by and through its attorneys, and for its Complaint against the CITY OF
UKIAH and DOES 1-10 , Inclusive, (hereafter, "UKIAH"), states as follows:
I. NATURE OF THE CASE
1. This is a citizens' suit brought against UKIAH under the citizen suit enforcement
provisions of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.,
(hereafter,"RCRA"), specifically Sections 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) and
7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), to stop UKIAH from repeated and ongoing violations
of the RCRA. These violations are detailed in the Notice of Violations and Intent to File Suit
Complaint for Injunctive Relief
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dated August 13, 2009 (hereafter, "RCRA NOTICE") made part of these pleadings and attached
hereto as EXHIBIT A.
2. As described in the RCRA NOTICE and below, RIVER WATCH has alleged that
UKIAH is in violation of a permit, standard, regulation, condition, requirement, prohibition, or
order which has become effective pursuant to this Act [42 U.S.C. § § 6901 et seq.; 42 U.S.C.
§ 6972(a)(1)(A)].
3. As described in the RCRA NOTICE and below, RIVER WATCH has alleged UKIAH
to be a past or present generator, past or present transporter, or past or present owner or operator
of a treatment, storage, or disposal facility, which has contributed or which is contributing to the
past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous
waste which may present an imminent and substantial endangerment to health or the
environment.
4. RIVER WATCH seeks declaratory relief, injunctive relief to prohibit future violations,
the imposition of civil penalties, and other relief for UKIAH's violations of RCRA's standards
and regulations applicable to the use and storage of petroleum hydrocarbons and other pollutants,
and UKIAH's violation of the RCRA's prohibition against creating an imminent and substantial
endangerment to human health and the environment.
5. UKIAH's use and storage of petroleum and other pollutants at its site and facilities as
described in detail in the RCRA NOTICE, regularly violates standards, regulations, conditions,
requirements or prohibitions effective pursuant to the RCRA regarding storage of petroleum and
like pollutants. [42 U.S.C. § 6972(a)(1)(A)].
6. RIVER WATCH alleges UKIAH is routinely violating the RCRA's prohibition against
creating an imminent and substantial endangerment to human health and the environment by its
operations at its site and facilities, as identified in the RCRA NOTICE, which have caused
contamination of soil, groundwater and surface water. [42 U.S.C. § 6972(a)(1)(B)].
7. Pollutants at this site and facilities leach into groundwater from current and former
underground storage tanks which have either been removed from or abandoned from the site and
Complaint for Injunctive Relief
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facilities without adequate measures taken to remove pollutants from soil and groundwater.
II. PARTIES
8. Plaintiff, NORTHERN CALIFORNIA RIVER WATCH, is a 501(c)(3) non-profit public
benefit corporation duly organized under the laws of the State of California, with headquarters
and main office located at 500 North Main Street, Suite 110, Sebastopol, California. RIVER
WATCH is dedicated to protect, enhance and help restore the surface and subsurface waters of
Northern California. RIVER WATCH's members live in Northern California and in Mendocino
County where the site and facilities under UKIAH's operation and/or control are located.
RIVER WATCH"s members live nearby to waters affected by UKIAH's illegal discharges.
RIVER WATCH's members have interests in the watersheds which are or may be adversely
affected by UKIAH's violations. Said members use the effected waters and watershed areas for
domestic water, recreation, sports, fishing, swimming, hiking, photography, nature walks,
religious, spiritual and shamanic practices, and the like. Furthermore, the relief sought will
redress the injury in fact to RIVER WATCH and its members, the likelihood of future injury and
interference with the interests of said members.
9. Defendant CITY OF UKIAH is a public entity with administrative offices located on
Seminary Drive in the City of Ukiah, County of Mendocino, State of California. RIVER
WATCH is informed and believes and on such information and belief alleges that UKIAH is
and was at all times relevant to this Complaint, the owner and operator of the the real property
on which the site and facilities identified in the RCRA NOTICE are situated and from which the
pollution alleged in this Complaint has been deposited and discharged.
10. Defendants DOES 1 - 10, Inclusive, respectively, are persons, partnerships, corporations
and entities, who are, or were, responsible for, or in some way contributed to, the violations
which are the subject of this Complaint or are, or were, responsible for the maintenance,
supervision, management, operations, or insurance coverage of UKIAH's site and facilities and
operations,on the site. The names, identities, capacities, and functions of Defendants DOES 1 -
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10, Inclusive are presently unknown to RIVER WATCH. RIVER WATCH shall seek leave of
court to amend this Complaint to insert the true names of said DOES Defendants when the same
have been ascertained.
III. JURISDICTIONAL ALLEGATIONS
11. Subject matter jurisdiction is conferred upon this Court by RCRA § 7002(a)(1), 42 U.S.C.
§ 6972(a)(1), which states in part,
"... any person may commence a civil action on his own behalf (A) against any
person ... who is alleged to be in violation of any permit, standard, regulation,
condition requirement , prohibition or order which has become effective
pursuant to this chapter, or (B) against any person ... who has contributed or
who is contributing to the past or present handling, storage, treatment,
transportation or disposal of any solid or hazardous waste which may present an
imminent and substantial endangerment to health or the environment."
12. RIVER WATCH members reside in the vicinity of, derive livelihoods from, own property
near, and/or recreate on, in or near and/or otherwise use, enjoy and benefit from the watersheds
and associated natural resources into which UKIAH discharges pollutants, orby whichUKIAH's
operations adversely affect those members' interests, in violation of RCRA § 7002(a)(1)(A),
42 U.S.C. §6972(a)(1)(A) and RCRA §7002 (a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). The health,
economic, recreational, aesthetic and environmental interests of RIVER WATCH and its
members have been, are being, and will continue to be adversely affected by UKIAH's unlawful
violations. RIVER WATCH contends there exists an injury in fact to its members, causation of
that injury by UKIAH's complained of conduct herein, and a likelihood that the requested relief
will redress that injury.
13. Pursuant to RCRA § 7002 (2)(A), 42 U.S.C. § 6972(2)(A), RIVER WATCH gave
statutory notice of the RCRA violations alleged in this Complaint prior to the commencement
of this lawsuit to: (a) UKIAH, (b) the United States EPA, Federal and Regional,(c) the State of
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I California Water Resources Control Board, and (d) the State of California Integrated Waste
Management Board.
14. Pursuant to RCRA §§ 7002(a) and (b), 42 U.S.C. §§ 6972(a) and (b), venue lies in this
District as the site and facilities under UKIAH's ownership or control and where illegal activities
occurred which are the source of the violations complained of in this action are located within
this District.
IV. GENERAL ALLEGATIONS
RIVER WATCH realleges and incorporates by reference the allegations of Paragraphs
1 through 14 as though fully set forth herein including all allegations in the RCRA NOTICE.
15. UKIAH owns and operates the City of Ukiah Corporation Yard (hereafter, the "Site"),
located at 1320 Airport Road, Ukiah, California. There are several drainage ditches adjacent to
the Site which allow pollutants to migrate to the Russian River.
16. In 1985, three 10,000 -gallon underground storage tanks (hereafter, "USTs"), associated
piping, and a fuel pump island were improperly installed at the north end of the existing vehicle
maintenance building on the Site. These USTs contained regular unleaded gasoline, premium
unleaded gasoline, and diesel fuel. Due to the improper containment and installation, these
USTs and associated piping discharged and continue to illegally discharge in violation of the
RCRA.
17. In November 1989, a 6,300 -gallon UST was removed from the eastern side of the Street,
Water, and Sewer Departments building. The UST was reported to have contained fuel and
waste oil. During the removal it was obvious this tank had leaked and discharged to the ground
and groundwater. However, this leak was not adequately investigated to determine the extent
to which fuel and waste oil had been discharged, although concentrations of gasoline were noted
in soil samples collected from beneath the UST.
18. Q 12009 test results still show contamination of soil and groundwater to be exceptionally
high and an immediate and substantial threat to health and the environment: MTBE 62,000 µg/l;
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TPH-g 5,800 µg/1; TPH-d 860 µg/1; BTEX 770 µg/l; and, TBA 23,400µg/1. All exceeding the .
MCL and WQO for these constituents by magnitudes. (For instance the MCL for MTBE is only
5 µg/1.).
19. The Site is located within the Ukiah Valley. The basin is drained by the Russian River
which flows from the northwest to the southeast. The geology of the Site indicates the presence
of alluvial deposits similar to those found in many stream courses. There are numerous gravel
and sand lenses and gravel streamers which can act as conduits, forming preferential pathways
for pollutants to move off the Site toward the Russian River and its tributaries. MTBE migrates
faster than any of the other constituents.
20. RIVER WATCH seeks engineering assurances that the underlying aquifers are not at
risk; and, that residual contamination at the Site is not migrating to outlying groundwater and
potentially to surface waters in the area. Proactive remediation using "best available technology"
must be implemented, and some efforts to estimate the residual plume mass and the amount of
time necessary to remediate the Site must be accomplished in keeping with standard cleanup
protocols in the industry.
21. Depth to groundwater varies depending upon the season. The surface is an unconfined
aquifer to approximately 30 feet mean sea level. The Site lies above an aquifer used as a source
of the water supply for the local community. Groundwater in the vicinity of the Site has been
designated as having a beneficial use for municipal, industrial, and agricultural applications,
according to the Regional Water Quality Control Board's Water Quality Control Plan for the j
North Coast Region.
22. The Site remains a threat to the human population and the local area environment. No
estimates of the residual contaminant plume mass have been found, and no estimate of the length
of time to remediate the site to below Maximum Contaminant Levels or Water Quality
Objectives as set by the State of California has been accomplished. RIVER WATCH is
informed and believes and thereupon alleges UKIAH must work much more proactively to
remediate the soil and groundwater beneath and around the Site by employing best available
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technology as required by the Water Quality Control Plan.
23. All illegal discharges and activities complained of in this Complaint occur in the
waterways (including groundwater) identified in the RCRA NOTICE, all of which are waters
of the State or the United States.
24. The Regional Water Quality Control Board has determined that the watershed areas and
affected waterways identified in the RCRA NOTICE are beneficially used for drinking water,
water contact recreation, non -contact water recreation, fresh water habitat, wildlife habitat,
preservation of rare and endangered species, fish migration, fish spawning, industrial service
supply, navigation, and sport fishing.
V. STATUTORY AND REGULATORY BACKGROUND
25. RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) permits an action against any person
who violates a PERMIT, STANDARD or REGULATION pursuant to RCRA. UKIAH has
stored, handled and disposed of materials containing petroleum, petroleum constituents, and
other toxic pollutants, defined as hazardous wastes under the RCRA, in a manner which has
allowed these pollutants to be discharged to soil and groundwater beneath and adjacent to the
Site, in violation of regulations regarding the use and disposal of hazardous wastes. [RCRA §
3004 (d), 42 U.S.C. § 6924(d)).
26. UKIAH has violated provisions of RCRA governing the use and operation of USTs used
for the storage of petroleum products (subchapter IX, 42 U.S.C. § 6991 et seq.). UKIAH has
realized unauthorized petroleum hydrocarbon releases at the Site, and has removed and/or
abandoned USTs on the Site used for the storage of petroleum without implementing required
and effective cleanup and abatement measures.
27. RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B) permits an action against any person
who has contributed or who is contributing to the past or present handling of any solid or
hazardous waste which may present an imminent and substantial endangerment to health or the
environment. The petroleum constituents, and other pollutants, identified in the RCRA NOTICE
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discharged at the Site in concentrations significantly greater than allowable Maximum
Contaminant Levels and/or Water Quality Objectives, are hazardous wastes pursuant to RCRA
§ 6903(5), 42 U.S.C. § 6972 (5). Pollutants from these substances have leached into soil and
groundwater beneath and adjacent to the Site, creating an imminent and substantial
endangerment to health and the environment.
28. UKIAH's discharges to soil and groundwater violate RCRA's regulations regarding the
storage and disposal of hazardous wastes. The violations are established in Regional Water
Quality Control Board files for the Site as well as in studies conducted by UKIAH in compliance
with orders from the Regional Water Quality Control Board or other regulatory agencies.
29. UKIAH's discharges to soil and ground water have violated RCRA's prohibition against
creating an imminent and substantial endangerment to health and the environment. The
violations are established in Regional Water Quality Control Board files for the Site as well as
in studies conducted by UKIAH in compliance with orders from the Regional Water Quality
Control Board or other regulatory agencies. The enumerated violations are detailed in the RCRA
NOTICE and below.
30. RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) permits an action against any person
who violates a PERMIT, STANDARD or REGULATION pursuant to the RCRA. UKIAH has
stored, handled and disposed of materials containing halogenated organic compounds and other
volatile organic compounds, defined as hazardous wastes under the RCRA, in a manner which
has allowed these pollutants to be discharged to soil and groundwater beneath and adjacent to
the Site in violation of regulations regarding the use and disposal of hazardous wastes. (RCRA
§ 3004 (d), 42 U.S.C. §6924(d)).
VI. VIOLATIONS
31. UKIAH's discharges to soil and groundwater as alleged in this Complaint violate the
RCRA's regulations regarding the storage and disposal of hazardous wastes. The violations are
established in Regional Water Quality Control Board Files for the Site as well as in studies
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conducted by UKIAH in compliance with orders from regulatory agencies
32. UKIAH' s discharges to soil and groundwater as alleged in this Complaint violate the
RCRA's prohibition against creating an imminent and substantial endangerment to health and
the environment. The violations are established in Regional Water Quality Control Board Files
for the Site as well as in studies conducted by UKIAH in compliance with orders from regulatory
agencies .
33. The enumerated violations are detailed in the RCRA NOTICE and below, designating the
section of the RCRA violated by the described activity.
VII. FIRST CLAIM FOR RELIEF
Violation of 42 U.S.C. § 6972(a)(1)(A)
RIVER WATCH realleges and incorporates by reference the allegations of Paragraphs
1 through 33 above, including the RCRA NOTICE, as though fully set forth herein.
34. RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) permits an action against any person
who violates a PERMIT, STANDARD or REGULATION pursuant to RCRA. Civil penalties
may be assessed against any person or entity in violation of this section, under the provisions of
42 U.S.C. §§ 6928 (a) and (g).
35. UKIAH's storage and disposal of toxic levels of petroleum and petroleum constituents
at the Site, defined as hazardous wastes under RCRA, has caused the discharge of hazardous
wastes to soil and groundwater in violation of regulations regarding the use and disposal of
hazardous wastes [RCRA § 3004 (d), 42 U.S.C. § 6924(d)], and the use and operation of USTs
[RCRA § 9002(a), 42 U.S.C. § 6991(a)].
36. RIVER WATCH avers and believes and on such belief alleges that without the
imposition of appropriate civil penalties and the issuance of appropriate equitable relief, UKIAH
will continue to violate a PERMIT, STANDARD or REGULATION pursuant to RCRA,
specifically RCRA § 3004(d), 42 U.S.C. § 6924(d), [RCRA § 9002(a), 42 U.S.C. § 6991(a)].
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37. RIVER WATCH avers and believes and on such belief alleges that continuing acts or
failure to act by UKIAH to address these violations will irreparably harm RIVER WATCH and
its members. RIVER WATCH avers and believes and on such belief alleges that the relief
requested in this Complaint will redress the injury to RIVER WATCH and its members, prevent
future injury, and protect the interests of RIVER WATCH and its members which interests are
or may be adversely affected by UKIAH's violations of RCRA, as well as other State and
Federal standards.
VIII. SECOND CLAIM FOR RELIEF
Violation of 42 U.S.C. § 6972(a)(1)(B)
RIVER WATCH incorporates the allegations set forth above in paragraphs 1 through 37
and the RCRA NOTICE as though fully set forth herein. RIVER WATCH is informed and
believes, and based on such information and belief alleges:
38. RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), provides that any person may
commence a civil action against any person or governmental entity including a past or present
generator, transporter, owner or operator of a treatment, storage or disposal facility who has
contributed to the past or present handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste which maypresent an imminent and substantial endangerment to health
or to the environment. Civil penalties may be assessed against any person or entity in violation
of this section, under the provisions of 42 U.S.C. §§ 6928 (a) and (g). The RCRA UST
regulatory program is adopted and implemented in California under the provisions governing
the Underground Storage of Hazardous Substances (California Health & Safety Code § 25280
et seq.).
39. UKIAH has owned and/or operated the Site at which it stores or has stored, and transfers
or has transferred, gasoline, diesel, fuel oil and mixed oils, and is now responsible for the
remediation of the Site.
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40. USTs on the Site are leaking, or in the past have leaked (before being removed or
replaced), petroleum chemicals including benzene, toluene, TPHg, ethylbenzene, xylenes, and
MTBE into groundwater; or petroleum products have been washed off the Site into nearby
surface waters and groundwaters.
41. Petroleum products are known to be hazardous to the environment, and if released into
the environment in sufficient quantity pose an imminent and substantial risk to.public health and
to the environment.
42. Constituent chemicals within these petroleum products such as benzene and toluene are
known carcinogens and/or reproductive toxins, and if released into the environment in sufficient
quantities, pose an imminent and substantial risk to public health and to the environment in
general.
43. For purposes of RCRA, petroleum products and their constituents: TPHg, benzene, 11
toluene, ethylbenzene, xylenes, and MTBE, are both "solid wastes" and "hazardous wastes"
within the meaning of the statute.
44. RIVER WATCH is informed and believes, and thereon alleges, that amounts of li
petroleum products and their constituents, TPHg, benzene, toluene, ethylbenzene, xylenes,
and/or MTBE, released by UKIAH at the Site are in sufficient quantity to pose an imminent and III
substantial risk to both the environment and to human health.
45. RIVER WATCH avers and believes and on such belief alleges that continuing acts or
failure to act by UKIAH to address these violations will irreparably harm RIVER WATCH and
its members, for which harm they have no plain, speedy or adequate remedy at law. RIVER
WATCH avers and believes and on such belief alleges that the relief requested in this Complaint
will redress the injury to RIVER WATCH and its members, prevent future injury, and protect
the interests of RIVER WATCH and its members which interests are or may be adversely
affected by UKIAH's violations of RCRA, as well as other State and Federal standards.
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IX. RELIEF REQUESTED
WHEREFORE, RIVER WATCH, respectfully requests this Court grant the following
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elief:1. Declare UKIAH to have violated and to be in violation of RCRA for discharging
petroleum products and constituents which are known carcinogens and/or reproductive toxins
in sufficient quantities to pose an imminent and substantial risk to health and to the environment;
2. Enjoin UKIAH from discharging petroleum products and petroleum constituents from the
Site, which petroleum products and constituents pose an imminent and substantial risk to health
and the environment;
3. Order UKIAH to comply with all of the substantive and procedural requirements of
RCRA;
4. Order UKIAH to pay civil penalties of $37,500 per violation per day, pursuant to
applicable RCRA provisions, including 42 U.S.C. §§ 6928 (a) and (g), and/or to pay for
remediation projects to redress harm caused by UKIAH's violations of RCRA. Each of the
above-described violations of RCRA subjects the violator to a civil penalties on a per day /per
violation basis. Civil penalties may be assessed for violations occurring within 5 years prior to
the initiation of a citizen enforcement action;
5. Enter such preliminary injunctions, permanent injunctions or other orders pursuant to
RCRA requiring UKIAH to enjoin and abate the nuisance resulting from the discharge and
release of petroleum products and constituents, and to enjoin the migration of petroleum
products and constituents into soil and groundwater;
6. Impose injunctive relief requiring UKIAH to immediately investigate, access and
categorize the extent of pollution and implement the "best available technology" to remediate
pollution at the Site identified in this Complaint.
7. Impose injunctive relief requiring UKIAH to immediately commence complete
remediation of the contamination at and adjacent to the Site once the contaminant plume(s) has
been adequately characterized;
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8. Award costs (including reasonable attorney, expert, witness, and consultant fees) to
RIVER WATCH as authorized by the RCRA; and,
9. Award such other relief as this Court may deem appropriate.
I DATED: LAW OFFICE OF JACK SILVER
JACK SILVER
Attorney for Plaintiff
NORTHERN CALIFORNIA RIVER WATCH
Complaint for injunctive Relief 13
EAIGI.NEERING
LOCATION OF UNDERGROUND UTILITY VERIFICATION AND SAMPLING
1320 AIRPORT ROAD
UKIAH, CALIFORNIA
CONCEPTUAL SITE PLAN