Free Complaint - District Court of California - California

Case 3:08-cv-02141-WHA

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Jack Silver, Esquire SBN# 160575 Law Office of Jack Silver Post Office Box 5469 Santa Rosa, California 95402-5469 Telephone: (707)528-8175 Facsimile: (707) 528-8675 E-mail: [email protected] Attorney for Plaintiff NORTHERN CALIFORNIA RIVER WATCH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NORTHERN CALIFORNIA RIVER WATCH, a non-profit Corporation, Plaintiff, CASE NO.: COMPLAINT FOR INJUNCTIVE RELIEF CIVIL PENALTIES, RESTITUTION AND REMEDIATION (Environmental - Resource Conservation and Recovery Act - 42 U.S.C. § 6901, et seq.)

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. /

NOW COMES Plaintiff, NORTHERN CALIFORNIA RIVER WATCH (hereafter, "RIVER WATCH") by and through its attorneys, and for its Complaint against defendant, REDWOOD OIL COMPANY, INC. (hereafter "REDWOOD OIL"), and DOES 1-10, inclusive, and states as follows: I. INTRODUCTION This is a civil suit brought against REDWOOD OIL, and as yet unidentified DOES under the

citizen suit enforcement provisions of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (hereafter, "RCRA"); and California law governing the Underground Storage of Hazardous Substances: California Heath & Safety Code § 25280 et seq. This complaint seeks relief for REDWOOD OIL's discharge of pollution from its current and/or former fuel dispensing facilities and its properties all located in the State of California located as follows: Site A - Redwood Oil Bulk Plant #141, 455 Yolanda Avenue, Santa Rosa,

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Site B - Redwood Oil Service Station, (Windsor Chevron) 9120 Old Redwood Highway, Windsor, Site C - Redwood Oil Service Station #102, 7716 Old Redwood Highway, Cotati, and, Site D - Redwood Oil Service Station, 1100 Bennett Valley Road, Santa Rosa, (hereafter collectively, "Facilities") into the waters of the State of California and the United States in violation of the above-enumerated statutes and laws. 2. By this Complaint RIVER WATCH seeks: a To enjoin REDWOOD OIL from discharging pollutants from each of the Facilities into the ground and surface waters surrounding and downstream of the Facilities; b. A court order directing REDWOOD OIL to comply with the substantive and procedural requirements of the above enumerated statutes and laws; c. A court order directing REDWOOD OIL to pay civil penalties or establish remediation projects in lieu of penalties for violations of the above enumerated statutes and laws; and, d. A court order directing REDWOOD OIL to reimburse RIVER WATCH for its reasonable costs of suit, including attorneys' fees, as allowed under Section 7002(e) of the RCRA, 42 U.S.C. § 6972(e). II. JURISDICTION This Court has subject matter jurisdiction over all Federal causes of action in this Complaint

pursuant to RCRA §§ 7002(a) & (b), 42 U.S.C. §§ 6972 (a) & (b) and 28 U.S.C. § 1221 (an action for declaratory and injunctive relief arising under the Constitution and laws of the United States). This Court has supplemental jurisdiction over all State-based causes of action in this Complaint pursuant to 28 U.S.C. § 1367, as those claims form part of the same case or controversy as the Federal causes of action 4. On or about November 29, 2007, RIVER WATCH provided a Notice of Violations and Intent

to File Suit (hereafter, "RCRA NOTICE"), for REDWOOD OIL's violations of the RCRA to the Administrator of the United States Environmental Protection Agency (hereafter, "EPA"), the Administrator of the Environmental Protection Agency - Region IX, the Executive Director of the State Water Resources Control Board, the Executive Director of the California Integrated Waste Management

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Board, and to REDWOOD OIL, as required by the RCRA. A true and correct copy of the RCRA NOTICE is attached hereto as EXHIBIT A and fully incorporated into this Complaint. 5. Members and supporters of RIVER WATCH 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 affected watershed area and associated natural resources into which the REDWOOD OIL Facilities discharge, or by which REDWOOD OIL's operations adversely affect members' interests, in violation of the above-enumerated laws or statutes. The health, economic, recreational, aesthetic and environmental interests of RIVER WATCH and its members may be, have been, are being, and will continue to be adversely affected by REDWOOD OIL's unlawful violations of the above-enumerated laws or statutes. RIVER WATCH contends that there exist injuries in fact to its members, causation of these injuries by the conduct of REDWOOD OIL complained of herein, and a likelihood that the requested relief will specifically redress these injuries. RIVER WATCH, through its members, has standing to bring this action. A copy of this Complaint shall be provided to the United States Attorney General, the Administrator of the United States EPA, and the Attorney General of California. III. INTRADISTRICT ASSIGNMENT 6. The basis for assignment of this case to the Northern District of California, pursuant to RCRA

§§ 7002(a) & (b), 42 U.S.C. §§ 6972 (a)& (b), is that REDWOOD OIL's Facilities and operations are located in this District. IV. PARTIES 7. Plaintiff RIVER WATCH is a 501(c)(3) non-profit public benefit corporation duly organized

under the laws of the State of California. Its headquarters are located at 6741 Sebastopol Road, Suite 140, Sebastopol, California. RIVER WATCH is dedicated to protecting, enhancing and helping to restore the waters of Northern California, including its drinking water sources, ground water, rivers, creeks and tributaries. Many of RIVER WATCH's members live in areas affected by REDWOOD OIL's pollution as described in this Complaint. Said members have interests in the affected watersheds which are or may be adversely affected by REDWOOD OIL's violations as set forth in this Complaint. Said members use the affected watershed for domestic water supply, agricultural water supply, recreation, sports, fishing, swimming, hiking, photography, nature walks and the like. Furthermore, the relief

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sought herein will specifically redress the injuries in fact, and the likelihood of future injuries and interference with the interests of RIVER WATCH's members. 8. RIVER WATCH is informed and believes and on said information and belief alleges that

defendant REDWOOD OIL is a corporation registered under the laws of the State of California, and doing business in California as Redwood Oil Company, Inc. at 50 Professional Center Drive, Suite 100, Rohnert Park, California. 9. 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 REDWOOD OIL's Facilities. The names, identities, capacities, and functions of DOES 1-10, inclusive, are presently unknown to RIVER WATCH, which shall seek leave of court to amend this Complaint to insert the true names of said DOES when the same have been ascertained. V. STATEMENT OF FACTS 10. RIVER WATCH is informed and believes and on such information and belief alleges that

REDWOOD OIL has owned, operated and/or leased the subject Facilities since at least the 1980's. 11. REDWOOD OIL in the past has stored and/or currently stores large quantities of petroleum

products in underground storage tanks (hereafter, "USTs") at the Facilities. Petroleum contamination was detected in soil and groundwater beneath Site C and Site D in 1990, beneath Site A in 1991 and 1995, and beneath Site B in 1991. Subsequent investigation indicated that the contamination was and is attributable to leakage from USTs and piping systems, surface spills and/or poor maintenance or operational practices. 12 Regulatory agencies have ordered REDWOOD OIL to investigate and remediate petroleum

contamination at the Facilities following discovery of petroleum releases. REDWOOD OIL has conducted some investigative and remedial work at the Facilities in response to those agencies' directives; however, based on current levels of contamination, significant levels of petroleum contamination remain in soil and groundwater beneath and adjacent to the Facilities.

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13.

Regulatory agencies have designated surface and ground waters in this area of California as

capable of supporting domestic supply, and have established maximum contaminant levels for petroleum constituents in surface and ground waters. 14. Benzene and toluene are known carcinogens and/or reproductive toxins, and have been listed

chemicals under Proposition 65 at least since 1991. Surface and groundwater at the Facilities are potential sources of drinking water under applicable Regional Water Quality Control Board, Water Quality Control Plans, also known as Basin Plans. In the course of doing business at the Facilities, REDWOOD OIL has discharged benzene and toluene to surface and groundwater. 15. REDWOOD OIL has used and/or stored petroleum at the Facilities in a manner which has

allowed significant quantities of hazardous petroleum constituents, including MTBE, to be discharged to soil and groundwater beneath the Facilities and beneath adjacent properties. 16. To date, the levels of TPHg, benzene, toluene, ethylbenzene, and xylenes remain far above the

allowable Maximum Contaminant Levels and/or Water Quality Objectives for said constituents, creating an imminent and substantial endangerment to public health and the environment. Significant quantities of MTBE are also being detected in soil and groundwater beneath the Facilities and adjacent properties, creating an imminent and substantial endangerment to public health and the environment. 17. The discharges by REDWOOD OIL as alleged in the RCRA NOTICE are both knowing and

intentional. REDWOOD OIL has used, stored and sold petroleum products at the Facilities, which are known to contain benzene, toluene, TPHg, ethlybenzene, xylenes, and/or MTBE, and intends or has intended that such products be sold to and used by the public. REDWOOD OIL has known of the contamination at the Facilities since at least 1990, and is also aware that failing to remediate the pollution allows the contamination to migrate through soil and groundwater at and adjacent to the Facilities, and to continually contaminate and re-contaminate actual and potential sources of drinking water. 18. Violations by REDWOOD OIL of the RCRA and other statutes alleged in this Complaint are

a major cause of the continuing decline in water quality, and represent a continuing threat to existing and future drinking water supplies in Northern California. With every discharge, groundwater supplies are

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contaminated. These discharges can and must be controlled in order for the groundwater supply to be returned as a safe source of drinking water. VI. FIRST CLAIM FOR RELIEF Violation of 42 U.S.C. § 6901 et seq. - specifically 42 U.S.C. § 6972(a)(1)(A) 19. RIVER WATCH incorporates the allegations set forth above in paragraphs 1 through 18 and

EXHIBIT A as though fully set forth herein. RIVER WATCH is informed and believes, and based on such information and belief allege as follows: 20. RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A), provides that any person may commence

a civil action against any person or governmental entity alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to the RCRA. Civil penalties may be assessed against any person or entity in violation of such permits, etc. under the provisions of the RCRA, 42 U.S.C. §§ 6928 (a) and (g). 21. REDWOOD OIL owns and operates the Facilities at which it stores or has stored, and transfers

or has transferred, gasoline, diesel, fuel oil and mixed oils to or from USTs. REDWOOD OIL's USTs have been and are regulated by the North Coast Regional Water Quality Control Board and/or the Sonoma County Department of Health or other local lead regulatory agency. 22. The North Coast Regional Water Quality Control Board and/or the Sonoma County Department

of Health have imposed remediation and monitoring requirements to ensure compliance with the RCRA UST program. 23. RIVER WATCH is informed and believes, and thereon alleges, that REDWOOD OIL has failed

to comply with the statutory and regulatory leak prevention, leak detection, monitoring, and remediation requirements imposed under the RCRA and described in the RCRA NOTICE. 24. Continuing failure by REDWOOD OIL to effectively remediate the on-going contamination at

its Facilities will irreparably harm RIVER WATCH and its members, for which harm RIVER WATCH and its members have no plain, speedy or adequate remedy at law. Wherefore, RIVER WATCH prays judgment against REDWOOD OIL as set forth hereafter.

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VII. SECOND CLAIM FOR RELIEF Violation of 42 U.S.C. § 6901 et seq., specifically 42 U.S.C. § 6972(a)(1)(B) RIVER WATCH incorporates the allegations set forth above in paragraphs 1 through 24 and

EXHIBIT A as though fully set forth herein. RIVER WATCH is informed and believes, and based on such information and belief alleges as follows: 26. 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 may present 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.). 27. REDWOOD OIL owns and operates the Facilities at which it stores or has stored, and transfer

or has transferred, gasoline, diesel, fuel oil and mixed oils. 28. The Facilities either have USTs which are leaking, or in the past have leaked petroleum

chemicals including benzene, toluene, TPHg, ethylbenzene, xylenes, and MTBE into groundwater; or petroleum products have been washed off the Facilities into nearby surface waters. 29. 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. 30. 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 quantity pose an imminent and substantial risk to public health and to the environment in general. 31. For purposes of the RCRA, petroleum products and their constituents: TPHg, benzene, toluene,

ethylbenzene, xylenes, and MTBE, are defined as "solid wastes" and "hazardous wastes" within the meaning of the statute.

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32.

RIVER WATCH is informed and believes, and thereon alleges, that amounts of petroleum

products and their constituents, TPHg, benzene, toluene, ethylbenzene, xylenes, and/or MTBE, released by REDWOOD OIL at the Facilities are in sufficient quantity to pose an imminent and substantial risk to both the environment and to human health. 33. Continuing acts or failure to act by REDWOOD OIL 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. Wherefore, RIVER WATCH prays judgment against REDWOOD OIL as set forth hereafter. VIII. RELIEF REQUESTED Plaintiff RIVER WATCH, respectfully requests this Court grant the following relief: 34. Declare REDWOOD OIL to have violated and to be in violation of the RCRA for discharging

petroleum products and constituents at the Facilities which are known carcinogens and/or reproductive toxins, in sufficient quantites to pose an imminent and substantial risk to health and to the environment; 35. Enjoin REDWOOD OIL from discharging petroleum products and petroleum constituents from

the Facilities, which petroleum products and constituents pose an imminent and substantial risk to health and the environment; 36. Order REDWOOD OIL to comply with each of the substantive and procedural requirements of

the RCRA at each of the Facilities; 37. Order REDWOOD OIL to pay civil penalties, pursuant to the provisions of the RCRA, 42

U.S.C. §§ 6928 (a) and (g); and/or to pay for remediation projects to redress harm caused by REDWOOD OIL's violations of the RCRA. Each of the above-described violations of the RCRA subjects the violator to a civil penalties on a per day per violation basis. Civil penalties may be assessed for violations occurring within five (5) years prior to the initiation of a citizen enforcement action; 38. Enter a judgment that REDWOOD OIL is required to pay civil penalties and exemplary damages

according to proof; 39. Enter such preliminary injunctions, permanent injunctions or other orders pursuant to the RCRA

requiring REDWOOD OIL 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.

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