Watch v. Fluor Corp.
| Decision Date | 09 July 2014 |
| Docket Number | Case No. 10-cv-05105-MEJ |
| Court | U.S. District Court — Northern District of California |
| Parties | NORTHERN CALIFORNIA RIVER WATCH, Plaintiff, v. FLUOR CORPORATION, Defendant. |
Plaintiff Northern California River Watch ("RW") brought this action pursuant to the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"), and the federal Clean Water Act, 33 U.S.C §1251 et seq. ("CWA" or "the Act"), against Defendant Fluor Corporation, alleging violations of both statutory schemes arising out of Fluor's past industrial use of real property located in Windsor, California. Thereafter, The Shiloh Group ("TSG"), which owns 28 acres situated on the western-most portion of the property, filed a motion on October 24, 2013, seeking to intervene as a plaintiff in this action pursuant to Federal Rule of Civil Procedure ("Rule") 24. Dkt. No. 121. Also pending before the Court is Fluor's Motion to Dismiss ("MTD") RW's Fourth Amended Complaint ("FAC"). Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby GRANTS TSG's Motion to Intervene and GRANTS IN PART and DENIES IN PART Fluor's Motion to Dismiss.
This is a citizen's enforcement action brought by RW, a non-profit organization dedicated to protecting, enhancing, and helping to restore the water environs of California, including its drinking water sources, groundwater, rivers, creeks and tributaries. FAC ¶ 11. RW brings this suit under the citizen suit enforcement provisions of the RCRA, specifically RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), and RCRA § 4005; 42 U.S.C. § 6945, to stop Fluor from alleged ongoing violations of the RCRA. Id. ¶ 1. RW also seeks relief under the CWA, specifically 33 U.S.C. §§ 1311, 1342, and 1365, to stop Fluor from alleged and ongoing violations of the CWA. Id. ¶ 5.
RW alleges that Fluor has violated various provisions of the RCRA and the CWA with respect to a site located on a portion of the Shiloh Industrial Park in Windsor, California (the "Site"). Id. ¶ 22. RW seeks declaratory and injunctive relief to prevent future violations, the imposition of civil penalties, and other relief based on Fluor's alleged violations of the RCRA and CWA. Id. ¶¶ 4, 8.
RW alleges that Fluor owned and operated the Site from 1955 to 1972, during which time it operated several industrial manufacturing and chemical treatment operations. Id. ¶ 23. Two sites are specifically identified in the FAC. The first is the Tower Site, which is currently being remediated by Ecodyne Corporation under the supervision of the Regional Water Quality Control Board ("RWQCB").1 Id. ¶ 26. The second is the Pond Site, which is being remediated by Fluor, under the supervision of the California Department of Toxic Substances Control ("DTSC"). Id. ¶¶ 26, 46.
In the FAC, RW alleges that Fluor used the Pond Site to manufacture processing tanks, cross arms, and cooling towers, as well as to treat wood products. Id. ¶ 23. RW alleges that Fluor manufactured and treated these materials on the Pond Site in a dip treatment shed and a kiln building. Id. RW further alleges that the treatment shed contained two tanks that heldpentachlorophenal ("PCP"), two tanks containing creosote, and four tanks containing lead. Id. RW alleges that wooden or metal platforms were built around the tanks, and that a concrete slab existed approximately two feet below these platforms, which was angled towards the southwest end of the building, though the slab did not run the entire length of the shed. Id. RW alleges that the slab was bermed around the perimeter of the shed, with openings on the southwest end, allowing spilled liquids to drain off the end of the slab onto the dirt floor. Id. ¶ 24. RW alleges that these spilled chemicals were then pumped to unlined evaporation ponds, and that these ponds, along with tanks, equipment, and drying tower, were the original sources of hazardous waste that was introduced into the soil at the Pond Site. Id. RW further alleges that the PCP, creosote, lead, arsenic turned the soil into solid hazardous waste, which is still discharging toxins into a waterway of the United States. Id. ¶¶ 23, 40.
RW also alleges that Fluor operated a paint shop outside of the Pond Site from 1962 to 1970, and that the operation of the paint shop introduced toxins such as lead, cadmium, mercury, tin, copper, arsenic, asbestos, DDT, and polychlorinated biphenyls ("PCBs") into the environment. Id. ¶ 25.
In addition, RW alleges that the only area of the Site that Fluor has "remediated, or ever attempted to remediate" is the Pond Site. Id. ¶ 26. Historical photos show "teepee" burners, which were used to burn wood and debris, being operated outside of the Pond Site. Id. RW alleges that residual solid and hazardous materials from the paint shop and teepee burners remain in the soil and groundwater. Id. Product was moved and stored throughout the Site, causing chemicals to be deposited in areas outside of the Pond and Tower Sites, and those locations have yet to be investigated or remediated. Id. Recent samplings of the canal connecting to Pruitt Creek demonstrate the presence of lead, copper, zinc, and polynuclear aromatic hydrocarbons ("PAHs"). Id. RW alleges that Fluor, in the course of doing business on the Site, has discharged, and continues to discharge, pollutants to surface and ground water at the Site. Id. ¶ 27.
Sometime in November of 2011, the RWQCB informed TSG, the current owners of the Site, that hazardous levels of lead and copper were found in the canal downstream from the former Pond Site, which leads to Pruitt Creek. Id. A February 27, 2012 Trans Tech report, entitled"Summary Report of Findings" by Trans Tech Consultants, prepared for TSG, strongly implied Fluor's prior operations as the source of the lead. Id.
RW alleges that Fluor's handling, use, transport, treatment, storage, or disposal of pollutants at the Site occurred in a manner which has allowed significant quantities of hazardous constituents to be discharged to soil, ground, and surface waters beneath and around the Site and adjacent properties off site. Id. ¶ 28. At present, RW alleges that the levels of pollutants in the groundwater at the Site remain high above the allowable Maximum Contamination Levels, Water Quality Objectives, and Public Health Goals for these constituents, and thus may be creating an imminent and substantial endangerment to public health or the environment. Id. ¶ 29. RW further alleges that the pollutants in the soils remain above the applicable Environmental Screening Levels and thus may be creating an imminent and substantial danger to public health or the environment. Id.
RW further alleges that Fluor has discharged or is continuing to discharge hazardous waste on the Site in violation of the RCRA. Id. ¶ 30. RW believes that Fluor has known of the contamination at the Site for more than 30 years, and is also aware that continuing discharges or failure to remediate the pollution allows the contamination to migrate through the soils and ground water at or adjacent to the Site, or to continually contaminate actual or potential sources of drinking water, as well as ground or surface waters. Id. It alleges that the violations are continuing to this day. Id.
Last, RW alleges that Fluor has discharged pollutants from the Site to waters of the United States without a National Pollutant Discharge Elimination System ("NPDES") permit, in violation of CWA § 301(a), 33 U.S.C. § 1311(a) and CWA § 402(a) and (b), 33 U.S.C. § 1342 (a) and (b). Id. ¶¶ 31, 32. RW alleges that Fluor is discharging pollutants, including lead, copper, zinc, and PAHs from the Site and various point sources within the Site to waters of the United States. Id. ¶ 33. The originating point sources were the tanks, teepee burners, equipment and ponds described above. Id. ¶¶ 26, 33. The Pond Site is directly adjacent to the canal on the Site and to wetlands adjacent to the canal. Id. ¶ 33. Materials are alleged to have moved from the Waste Pond to the canal. Id. The canal is directly connected to a water of the United States (Pruitt Creek). Id.Moreover, RW alleges these point sources continue to discharge to discrete conveyances connected to waters of the United States. Id. These point sources include roads, sewer lines (including a lateral that runs through the plume), and drainage ditches on the Site which discharge directly to the culvert adjacent to the Site, which in turn discharges to Pruitt Creek. Id. RW further alleges that these additional point sources also continue to discharge from the Site to surface waters adjacent to the Site. Id. It alleges that the violations are continuing to this day. Id.
The range of dates covered by the allegations is the period between August 1, 2007 and August 1, 2012, as designated by the August 1, 2012 Notices of Violations and Intent to File Suit Under the RCRA and CWA attached to the FAC. Id. ¶¶ 30, 33. The violations of the CWA, including discharging pollutants to waters of the United States without an NPDES permit, failure to obtain an NPDES permit, failure to implement the requirements of the CWA, and failure to meet water quality objectives, are alleged to be continuous and ongoing. Id. ¶ 34.
TSG owns 28 acres of real property in Windsor, California. Nelson Decl. ¶ 1, MTI2, Dkt. No. 121. TSG's property lies on the western-most portion of the former Fluor site. Id. When TSG purchased the property in 1999, TSG was aware that Fluor was in the process of cleaning up the area known as the Pond Site under the supervision of the DTSC, which lies on the property.3 Id. at ¶ 1. This site exhibits mainly lead contamination. Id. ¶ 5. TSG believes that Fluor caused the lead and other contamination at the Pond Site. Id. ¶ 1. TSG was also...
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