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1 Jack Silver, Esq. SBN 160575 Law Office of Jack Silver 2 Post Office Box 5469 Santa Rosa, CA 95402-5469 3 Tel. (707) 528-8175 Fax. (707) 528-8675 4 [email protected] 5 Attorneys for Plaintiff NORTHERN CALIFORNIA RIVER WATCH 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
C08-02141 CW PLAINTIFF'S MEM ORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S FRCP 12(b)(6) MOTION TO DISMISS

NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation, Plaintiff, REDWOOD OIL COMPANY, INC., and DOES 1 - 10, Inclusive, Defendants. /

CASE NO. C08-02141 CW PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S FRCP 12(b)(6) MOTION TO DISMISS Date: Time: Ctrm: Judge: August 28, 2008 2:00 p.m. 2 - OAKLAND Hon. Claudia Wilken

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii - iii STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY .......................................................1

LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. B. C. D. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim . . . . . . . . . . . . . . . . . . . . . 4 Rule 12(b)(1) Motion to Dismiss for lack of Subject Matter Jurisdiction . . . . . . . . . . . . 6 Res Judicata Principles Do Not Apply Under the Facts of This Case . . . . . . . . . . . . . . . . 6 The Terms of the Consent Decree Do Not Prevent Subsequent Action . . . . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES STATUTES AND REGULATIONS RESOURCE CONSERVATION AND RECOVERY ACT 42 U.S.C. § 6901, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 § 6928(d)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 § 6928(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 § 6972(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 § 6972(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 § 6973(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 § 6991e(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 40 CFR § 280.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 40 CFR § 280.31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 40 CFR § 280.34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 40 CFR § 280.40 - § 280.44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 40 CFR § 280.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 40 CFR § 280.52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 40 CFR § 280.53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,7 40 CFR § 280.60 - § 280.66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,7 40 CFR § 280.63(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7 California Health & Safety Code § 25289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Health & Safety Code § 25292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Health & Safety Code §§ 25292.1(a) - (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Health & Safety Code § 25292.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Health & Safety Code § 25292.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Health & Safety Code § 25293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Health & Safety Code § 25295(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4

Antrim Mining, Inc. v. Davis 775 F. Supp. 165, (M.D. Pa. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Association of Am. Med. Colleges v. United States 217 F.3d 770 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Atlantic States Legal Foundation v Tyson Foods 897 F.2d 1128 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Cooper v. Bell 628 F.2d 1208 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Conley v. Gibson 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5 Fusco v. Xerox Corp. 676 F.2d 332 (8th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Gilligan v. Jamco Dev. Corp. 108 F.3d 246 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Green v. Illinois Dept. of Transportation 609 F. Supp. 1021 (N.D. Ill 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Los Angeles Branch NAACP v. Los Angeles Unified School Dist. 750 F.2d 731 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Montana v. United States 440 U.S. 147, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Neitzke v. Williams 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Parks School of Business, Inc. v. Symington 51 F.3d 1480 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Scheuer v. Rhodes 416 U.S. 232, 40 L. Ed. 2d 90; 94 S. Ct. 1683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Old Timer, Inc., et al. v. Blackhawk-Central City Sanitation District, et al 51 F. Supp. 2d 1109 (D.C. Colo 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 United Food & Commercial v. City Foods, Inc. 878 F. Supp. 122 (N.C. Ill 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 United States v. Aceto Agric. Chem. Corp. 872 F.2d 1373 (8th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Usher v. City of Los Angeles 828 F.2d 556 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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STATEMENT OF FACTS Plaintiff Northern California River Watch ("River Watch") is a 501(c)(3) non-profit citizens' action organization dedicated to the protection and enhancement of the waters of the State of California including all rivers, creeks, streams and groundwater in Northern California. River Watch has filed two Complaints against Redwood Oil Company, Inc. ("Redwood Oil"). The first of action was filed on October 18, 1999, under the provisions of the Resource Conservation and Recovery Act ("RCRA") for petroleum hydrocarbon contamination from current and former underground storage tank ("UST") and bulk fuel storage and distribution facilities; and the second, filed on April 24, 2008, the current action, for current and ongoing violations of RCRA following the termination of the prior Consent Decree. Although both Complaints involve violations of RCRA, the specific violations of RCRA differ as do the sites of the violations. With the express termination of the Consent Decree on November 1, 2007, River Watch was free to file against Redwood Oil for current and ongoing violations of RCRA because the Consent Decree had not precluded that possibility.

PROCEDURAL HISTORY Nearly 10 years ago River Watch provided Redwood Oil with Notice of Violations and Intent to File Suit letters ("Notice Letters") for violations of the Clean Water Act ("CWA") and RCRA. The CWA Notice Letter alleged violations of the Act's storm water regulations. The RCRA Notice Letter alleged violations of the RCRA for Redwood Oil's handling and storage of petroleum products which had become an imminent and substantial endangerment to human health and the environment. Resulting from these negotiations, the parties, including Redwood Oil and defendants Peter Van Alyea and Robert I. Barbieri, entered into a Consent Decree which provided for a schedule of specific remediation work at the listed UST sites with oversight to be retained by supervising Federal, State or local lead agencies. [Court Doc # 11-2 - Dec. of Peter Van Alyea - Ex. A] The Consent Decree required Redwood Oil to comply with the State Water Resource Control Board's requirements, including the filing of a comprehensive SWPPP for its facilities. In accordance with the Consent Decree, the Court was to retain jurisdiction following the date of termination of the
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Consent Decree, for the purpose of its enforcement. The Consent Decree was scheduled to terminate as to all of its provisions on November 1, 2007. [Court Doc #11-2, pg 9] On February 12, 2007, prior to the termination of the Consent Decree, River Watch sent a letter to Redwood Oil, Defendants Peter Van Alyea and Robert I. Barbieri requesting copies of the "schedule" required by the Consent Decree, copies of relevant documents regarding the remediation plans of each UST site listed in the Consent Decree, copies of the Storm Water Permit, copies of correspondence from the Regional Water Quality Control Board or lead regulatory agency staff regarding each listed site, copies of any documentation indicating that any listed site was not in compliance with the General Permit, and a current listing of the present owners or lessees of each service station or UST site listed in the Exhibits to the Consent Decree. [Decl. of Jack Silver, Ex A at ¶ 2] With a letter dated May 3, 2007, Peter Van Alyea on behalf of Redwood Oil responded to some of the items River Watch had requested in February, providing various documents and anticipated remediation dates for many of the UST sites that remained under the oversight of the Regional Water Quality Control Board or a lead regulatory agency. Based upon River Watch's review of these materials, River Watch found that the State or local, regulatory oversight agency had denied certain closure requests at some of the Redwood Oil UST sites because certain remediation requirements such as plume delineation had not been completed. In evaluating the remediation work at the sites, it was River Watch's determination at that time that much of the remediation work had not been initiated at many of the sites, and that the provisions and requirements of the Consent Decree had not been met. [Decl. of Jack Silver at ¶ 4] On September 18, 2007, River Watch met with Redwood Oil and Defendant Van Alyea at the Redwood Oil offices in Rohnert Park. This meeting was ended abruptly after approximately 15 minutes by Redwood Oil's current attorney without any expression of willingness on the part of Redwood Oil to consider an additional agreement or further Consent Decree requiring Redwood Oil to complete the remediation of a number of its sites. [Decl. of Jack Silver at ¶ 3, ¶ 5] On or about the end of September 2007, River Watch sent another letter to Redwood Oil, stating that the documentation earlier provided to River Watch in May had not included remediation
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information for 30 of the 57 sites listed in the Consent Decree. This request was ignored by Redwood Oil, as was a letter to defendant Robert I. Barbieri in October of 2007 seeking remediation documentation concerning the UST sites he owned or operated individually, apart from his share of Redwood Oil ownership. On or about October 5, 2007 River Watch received a letter from Redwood Oil through its attorney, Scott Cameron Kirk. This letter was in disagreement with River Watch's evaluation of the materials Redwood Oil had provided, and with River Watch's concerns about the extent of claimed remediation efforts. The letter also disputed River Watch's continuing contentions of RCRA violations as to the extent of ongoing contamination at Redwood Oil's UST sites. [Decl. of Jack Silver, Ex B at ¶ 7]. On November 29, 2007, after the termination of the parties' Consent Decree, River Watch served a Notice of Violations letter upon Redwood Oil with regard to current and ongoing violations of the RCRA, 42 U.S.C. § 6901 et seq. [Court Doc #1, Ex A] River Watch informed Redwood Oil that at the expiration of the appropriate notice period, River Watch intended to commence an action against Redwood Oil for current and continuing on the following grounds: 1. Redwood Oil's use and storage of petroleum products at its gasoline station sites as identified in this Notice has and continues to violate permits, standards, regulations, conditions, requirements and/or prohibitions effective pursuant to RCRA regarding storage of petroleum in underground storage tanks ("USTs") [42 U.S.C. § 6972(a)(1)(A)]; 2. Redwood Oil's operations at these gasoline station sites as identified in this Notice have caused petroleum contamination of soil and groundwater which presents an imminent and substantial endangerment to human health and to the environment [42 U.S.C. § 6972(a)(1)(B)]. [Court Doc #1, Ex A. pg. 1] This Notice of Violations included the following claims which were not contained in the first

21 Notice of Violations sent to Redwood Oil in 1999: 22 1. 23 24 25 3. 26 27 28
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Failure to prevent a release, in violation of 40 CFR §§ 280.30, 280.31 and California Health & Safety Code §§ 25292.1(a) - (c), 25292.3(a) and (b). Failure to properly detect and monitor releases, in violation of 40 CFR §§ 280.40 - 280.44 and California Health & Safety Code § 25292. Failure to properly report and keep records of the release, in violation of 40 CFR §§ 280.34, 280.50, 280.52, 280.53, 280.63(b) and California Health & Safety Code §§ 25289, 25293 and 25295(a)(1).

2.

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4.

Failure to take proper corrective action, in violation of 40 CFR §§ 280.53, 280.60 - 280.66 and California Health & Safety Code § 25295(a)(1). [Court Doc #1, Ex A. pg. 7]

This Notice of Violations made it clear that River Watch alleged each of these failures by Redwood Oil as separate violations of the RCRA for one or more of Redwood Oil's UST sites and its bulk distribution facility. This Notice of Violations was issued in view of Redwood Oil's current and ongoing discharges and releases of petroleum products and petroleum constituents, including chemicals known to the State of California to cause cancer or reproductive toxicity. As of the date of that Notice of Violations, Redwood Oil had failed to take corrective actions to abate further violations of RCRA. After receiving no response from Redwood Oil during the 90-day notice period, River Watch filed its Complaint on April 24, 2008. [Court Doc. #1] incorporating the Notice of Violations and each of the allegations contained therein

LEGAL ARGUMENT Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Redwood Oil has filed a Motion to dismiss River Watch's Complaint under the provisions of FRCP 12(b)(6) for the alleged failure of River Watch to state a claim for which relief by the Court might be granted. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957) sets forth the general rubric under which complaints may be tested by motions to dismiss: "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

At this stage in the litigation allegations alone will suffice. The court must take the non-moving party's allegations as true and construe those allegations in the light most favorable to the non-moving party. See also Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court must also draw all reasonable inferences in favor of the non-moving party. See Usher v. City of
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Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). And, when the non-moving party has attached exhibits to the complaint, those exhibits may be considered by the Court without converting the motion to one for summary judgment. Cooper v. Bell, 628 F.2d 1208, 1210, n.2 (9th Cir. 1980). The issue is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of the plaintiff's claims. Scheuer v. Rhodes, 416 U.S. 232, 236; 40 L. Ed. 2d 90; 94 S. Ct. 1683 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir. 1989). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. The Rule does not countenance dismissals based on a judge's disbelief of a complaint's factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). It is only in the "unusual case" where the complaint on its face reveals some insuperable bar to relief that a dismissal under Rule 12(b)(6) is warranted. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). A Rule 12(b)(6) motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). In the instant case, Redwood Oil has not made any claims that the basis for River Watch's current Complaint contains no set of facts which would entitle River Watch to relief, or that allegations made in the current Complaint are identical to and were fully addressed by River Watch's October 15, 1999 Complaint against Redwood Oil ­ and clearly they are not identical, as is noted above with respect to the violations occurring after the 1999 action and additional allegations contained in the November 29, 2007 Notice of Violations. In fact, Redwood Oil does not suggest that River Watch's present

allegations against it are not justiciable ­ except that the parties' earlier Consent Decree would, it contends, prevent River Watch from bringing any further Federal action of any kind against Redwood Oil. This failure in the substance of Redwood Oil's Motion to Dismiss is fatal. Without establishing that River Watch's allegations in its current Complaint are identical with those covered in its first Complaint against Redwood Oil, and without establishing that there have been no new releases at any
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of the UST sites, Redwood Oil has not met its obligation for purposes of a FRCP 12(b)(6) motion to dismiss. It is not enough to simply announce, as Redwood Oil has, that "... the Order entered in 2000 has the full force and effect of res judicata." [Def's Memo of Points and Authorities, p. 3, lines 15-16] B. Rule 12(b)(1) Motion to Dismiss for lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1), a district court must dismiss an action if it lacks jurisdiction over the subject matter of the suit. In order to prevail the party moving under Rule 12(b)(1) must submit

evidence indicating that the court lacks subject matter jurisdiction. Once the moving party has submitted evidence supporting its motion it " then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." Association of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (noting that a district court "obviously does not abuse its discretion by looking to this extra-pleading material in deciding the issue, even if it becomes necessary to resolve factual disputes"). It is unclear from Redwood Oil's Motion to Dismiss if it is alleging lack of jurisdiction due to either the prior Consent Decree that terminated as to all of its provisions on November 1, 2007, or its theory concerning res judicata. However, as discussed below, neither is applicable nor can either act to deprive this Court of jurisdiction over River Watch's claims. C. Res Judicata Principles Do Not Apply Under the Facts of This Case The elements necessary to establish res judicata are well settled. In Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979), the Court held that under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. River Watch contends that res judicata does not apply to preclude its current litigation against Redwood Oil because River Watch's present claims do not meet one of the three necessary requirements for res judicata application. River Watch's allegations of Redwood Oil's RCRA violations do not meet the primary res judicata requirement that the same claim or cause of action be present in the subsequent action that is sought to be dismissed.

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As discussed above River Watch raised claims in the November 29, 2007 Notice of Violations made part of the 2008 Complaint which were not raised in the 1999 complaint. In addition to alleging current and continuing violations of 42 U. S.C. §§ 6972(a)(1)(A) and (B), the 2008 Complaint alleged categorical violations not alleged in the 1999 Complaint: failure to prevent a release, in violation of 40 CFR §§ 280.30 and 280.31; failure to properly detect and monitor releases, in violation of 40 CFR §§ 280.40 - 280.44; failure to properly report and keep records of the release, in violation of 40 CFR §§ 280.34, 280.50, 280.52, 280.53, 280.63(b); and, failure to take proper corrective action, in violation of 40 CFR §§ 280.53, 280.60 - 280.66. [Court Doc. #1, Ex A, pg. 7] With every new violation of "permits, standards, regulations, conditions, requirements and/or prohibitions effective pursuant to RCRA" there is a distinct primary right that is being infringed upon under the provisions of the RCRA. Each new day of non-compliance with the statute is deemed to constitute a new violation. Atlantic States Legal Foundation v. Tyson Foods 897 F.2d 1128 (11th Cir. 1990) at 1138-39 [see also 42 U.S.C. § 6928(d)(7)(B), 42 U.S.C. § 6928(a)(3), 42 U.S.C. § 6973(b) and 42 U.S.C. § 6991(e)(a)(3) all specify penalties for each day of violation.] In its 2008 Complaint, River Watch alleged new violations of the RCRA and current conduct on the part of Redwood Oil that, if proven, would render it liable for penalties under RCRA provisions. River Watch is complaining of continuing and subsequent violations of the RCRA occurring after the termination date of the Consent Decree. Accordingly, River Watch's current claims cannot be deemed the "same claims" as it brought in 1999. Res judicata "does not bar litigation of claims arising from transactions which occurred after the [original] action was brought." Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731, 739-740 (9th Cir. 1984). River Watch has alleged claims which have arisen since the earlier action was filed, and it is these claims for which River Watch seeks redress under the provisions of the RCRA. Numerous other courts have also held that new violations give rise to new claims and that defendants do not enjoy a general immunity against these new claims. (See The Old Timer, Inc., et al. v. Blackhawk-Central City Sanitation District, et al., 51 F. Supp. 2d 1109, 1118 (D.C. Colo 1999) (each
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permit violation gives rise to a separate cause of action, and res judicata bars only those violations covered by the penalty order); Antrim Mining, Inc. v. Davis, 775 F. Supp. 165, 172 (M.D. Pa. 1991) (each new day of violation gives rise to a new cause of action under the statute); United Food & Commercial v. City Foods, Inc., 878 F. Supp. 122, 123 (N.C. Ill 1995) (a defendant's continuing course of conduct, even if related to conduct complained of in the earlier lawsuit, generally creates a separate cause of action; Green v. Illinois Dept. of Transportation, 609 F. Supp. 1021, 1024 (N.D. Ill 1985). The 2008 Complaint of River Watch alleges claims of additional discharges of pollution occurring after the date of the termination of the Consent Decree. [Court Doc. # 1, pg. 4-8] River Watch has alleged different violations of the RCRA than were alleged in 1999, as well as current and ongoing violations by Redwood Oil. In as much as the Consent Decree does not have prospective effect as to any future statutory violations, Redwood Oil must remain liable for all violations occurring after the effective date of the previous action as well as the new categorical allegations. D. The Terms of the Consent Decree Do Not Prevent Subsequent Action The text of the Consent Decree does not preclude River Watch's right to bring another action against Redwood Oil for what River Watch alleges to be current and ongoing violations of the provisions of the RCRA. Sections 23 and 24 of the Consent Decree state as follows: 23. This Court shall retain jurisdiction from the date of entry of this Consent Decree through the date of termination of this Decree for the purposes of this Decree. In addition, following the date of termination of this Consent Decree, this Court shall retain jurisdiction for the purposes of (1) resolving any dispute of this Decree, and (2) disposing of any motion to enforce this Decree, or of any contempt petition, filed on or before the date of termination. 24. This Consent Decree shall terminate as to each of its provisions on November 1, 2007. [Court Doc #11-2, pg. 10] In section 23 of the Consent Decree, the parties specified that "the Court shall retain jurisdiction ... through the date of termination of this Decree...." The Consent Decree also specifies that the Court "... shall retain jurisdiction for the purposes of (1) resolving any dispute..., and (2) disposing of any motion ... filed on or before the date of termination." (Emphasis added.)

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The plain meaning of this section of the Consent Decree is obvious. The Court's retained jurisdiction was agreed to conclude with the termination of the Consent Decree, unless a dispute arose or a motion to enforce the Consent Decree was filed on or before the date of termination. Here, inasmuch as there was no formal dispute made during the pendency of the Consent Decree, and no motion to enforce the terms of the Consent Decree was filed before the date of termination, it seems apparent to River Watch that the jurisdiction of the Court ended on November 1, 2007; and, that after November 1, 2007, River Watch was no longer constrained by its provisions, and was free to bring a subsequent action against Redwood Oil with current allegations of violations of the RCRA. In terms of the language of the Consent Decree, Redwood Oil may claim that the concerns raised by River Watch in 2007 about many of the Redwood Oil sites, and River Watch's request for remediation information qualifies as a "dispute" within the meaning of the Consent Decree. Even if it does, Redwood Oil itself was unwilling to consider seriously any of River Watch's concerns, maintaining that it had complied with Regional Water Quality Control Board directives and had been remediating each of the listed sites. During this period in the latter months of 2007, Redwood Oil was unwilling to mediate River Watch's concerns, and seemed willing to allow the Consent Decree to lapse, apparently believing that unless River Watch brought a motion to enforce before November 1, 2007, it would be timed out with respect to the Consent Decree, and Redwood Oil would be out of jeopardy. The evidence for this interpretation of the reason for Redwood Oil's refusals to negotiate with River Watch regarding River Watch's ongoing concerns about the adequacy of remediation during this time may be found in Redwood Oil's own Memorandum of Points and Authorities, wherein it is argued as follows: But it also believes that River Watch is itself in violation of the Consent Decree and Order, and has failed to properly follow the procedures required to enforce the terms of the settlement it made. Based on these procedural failures, Redwood Oil does not believe that River Watch can maintain an action even to enforce the terms of the Consent Decree. (Def's Memo of Points and Authorities, p. 4, lines 5-8.) It is apparent to River Watch that Redwood Oil's interpretation of the effect of the termination of the Consent Decree provided the rationale that led Redwood Oil to resist any further negotiations with
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River Watch before the date of the termination of the Consent Decree. To River Watch, this conduct on the part of Redwood Oil amounts to "unclean hands," which should in itself defeat Redwood Oil's request that the Court should enforce Redwood Oil's self-serving interpretation of the Consent Decree. In September of 2007 River Watch attempted in good faith to bring Redwood Oil to the negotiating table before the termination of the Consent Decree on November 1, 2007. However, with the abrupt termination of that meeting by Redwood Oil, it became fully apparent to River Watch that Redwood Oil was not interested in mediation under the terms of the Consent Decree, and that Redwood Oil was content to let the enforcement provisions of the Consent Decree lapse. [Decl. of Jack Silver at ¶ 6] It is clear that the text of the Consent Decree is silent about the effect of not bringing a motion to enforce until after its termination. Nowhere does it state or imply that River Watch will be forever precluded from bringing another action against Redwood Oil. In its integration clause, the Consent Decree states that it "constitutes the full, complete, and entirety of the terms and conditions agreed to by them...." [Court Doc. #11-2, pg 8] Accordingly, without a written provision in the Consent Decree as to the effect of River Watch's not bringing a motion to enforce, or as to not notifying Redwood Oil in writing of alleged violations leading to an agreement to mediate their dispute, there can be no basis for the claim that no litigation can be filed against Redwood Oil for violations of RCRA provisions. CONCLUSION On the basis of the foregoing, River Watch believes the Motion to Dismiss filed by Redwood Oil should be denied in its entirety as not being in accord with the manner by which a FRCP Rule 12(b) motion is brought. Dated: August 6, 2008 Respectfully submitted, /s/ Jack Silver JACK SILVER Attorney for Plaintiff NORTHERN CALIFORNIA RIVER WATCH

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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 [email protected] Attorneys for Plaintiff NORTHERN CALIFORNIA RIVER WATCH

UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. REDWOOD OIL COMPANY, INC., and DOES 1 - 10, Inclusive, Defendants. / I am an attorney duly admitted to practice before all the Courts of the State of California, and an NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation, Plaintiff, CASE NO. C08-02141 CW DECLARATION OF JACK SILVER IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S FRCP 12(b)(6) MOTION TO DISMISS Date: Time: Ctrm: Judge: August 28, 2008 2:00 p.m. 2 - Oakland Hon. Claudia Wilken

attorney of record herein for Plaintiff NORTHERN CALIFORNIA RIVER WATCH. I have personal knowledge of all matters stated herein and, if called as a witness, could and would testify competently thereto. 2. Attached hereto as Exhibit A is a true and correct copy of the February 12, 2007 letter I sent

to Peter Van Alyea, President of Redwood Oil Company and Robert I. Barbieri, Owner of Redwood Coast Petroleum, Inc. 3. On September 18, 2007, James Doyle and I met with Peter Van Alyea, President of Defendant

REDWOOD OIL COMPANY, INC., John Mahoney, a Redwood Oil Company employee, and attorney Cameron Scott Kirk at Defendant's business offices in Rohnert Park, California for the purpose of discussing the condition of the many unremediated underground storage tank sites that Defendant continued to own, operate or control at that time.
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