Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 1 of 10 Page ID #:1
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`ROB BONTA
`Attorney General of California
`DAVID A. ZONANA
`Supervising Deputy Attorney General
`SOMERSET PERRY, SBN 293316
`HEATHER M. LEWIS, SBN 291933
`Deputy Attorneys General
`1515 Clay Street, 20th Floor
`P.O. Box 70550
`Oakland, CA 94612-0550
`Telephone: (510) 879-1008
`Fax: (510) 662-2270
`E-mail: Somerset.Perry@doj.ca.gov
`E-mail: Heather.Lewis@doj.ca.gov
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`
`Case No. 8:22-CV-00136
`COMPLAINT FOR RECOVERY
`OF RESPONSE COSTS and
`DECLARATORY RELIEF (42
`U.S.C. §§ 9607(a) and 9613(g)(2) and
`alternative, supplemental state law
`claims)
`
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`CALIFORNIA DEPARTMENT OF
`TOXIC SUBSTANCES CONTROL
`and the TOXIC SUBSTANCES
`CONTROL ACCOUNT,
`
`Plaintiffs,
`
`v.
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`MANUEL REYNOSO, individually
`and d/b/a ORANGE COUNTY
`METAL PROCESSING,
`
`Defendant.
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`Plaintiffs, the California Department of Toxic Substances Control (“DTSC”)
`and the Toxic Substances Control Account (collectively “Plaintiffs”) allege as
`follows:
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`STATEMENT OF THE CASE
`1. This is a civil action brought by Plaintiffs against Manuel Reynoso,
`individually and doing business under the name Orange County Metal Processing
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 2 of 10 Page ID #:2
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`(“Defendant”) under section 107(a) of the Comprehensive Environmental
`Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a), for
`the recovery of unreimbursed response costs that Plaintiffs have incurred, and
`interest on such response costs, in connection with releases and threatened releases
`of hazardous substances at, beneath, above, and/or from the Orange County Metal
`Processing Site (“Site”), a former metal finishing facility located at 1711 Kimberley
`Avenue, Fullerton, California, 92831, identified with Assessors’ Parcel Number
`033-270-30.
`2. Plaintiffs further make a claim for declaratory relief, under 28 U.S.C §
`2201 and section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), for a declaratory
`judgment that Defendant is jointly and severally liable to Plaintiffs for the response
`costs Plaintiffs have incurred, and for any further response costs Plaintiffs incur in
`the future as a result of any release or threatened release of a “hazardous
`substance,” as defined in CERCLA section 101(14), 42 U.S.C. § 9601(14), at
`OCMP.
`3. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Plaintiffs
`make an alternative claim for the recovery of response costs and interest thereon
`pursuant to California’s Hazardous Substances Account Act, California Health and
`Safety Code section 25300 et seq.
`4. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Plaintiffs also
`make an alternative claim for a declaratory judgment that Defendant is liable to
`Plaintiffs, pursuant to section 25363 of the California Health and Safety Code, for
`the response costs they have incurred and will incur in responding to releases and
`threatened releases of hazardous substances at or from the Site.
`JURISDICTION AND VENUE
`5. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
`and section 113(b) of CERCLA, 42 U.S.C. § 9613(b). This Court has jurisdiction
`over the subject matter of the claims made under state law in this action under 28
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 3 of 10 Page ID #:3
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`U.S.C. § 1367(a) (supplemental jurisdiction) because the claims under state law
`arise out of the same common nucleus of facts as the federal question jurisdiction
`claims set forth in this Complaint and the state and federal law claims are so closely
`related that they form part of the same case or controversy.
`6. Venue is proper in this judicial district under 28 U.S.C. § 1391(b) and
`section 113(b) of CERCLA, 42 U.S.C. § 9613(b), because the releases and
`threatened releases of hazardous substances that are at issue occurred in this judicial
`district.
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`PLAINTIFFS
`7. DTSC is a public agency of the State of California, organized and
`existing under California Health and Safety Code sections 58009 and 58010. DTSC
`is responsible under state law for determining whether there has been a release
`and/or threatened release of a hazardous substance into the environment and for
`responding to releases and/or threatened releases of hazardous substances.
`8. The Toxic Substances Control Account is an account within the State of
`California General Fund. California Health and Safety Code section 25173.6
`establishes the account and the Director of DTSC administers the account. Under
`California Health and Safety Code section 25361(a), the account shall be a party in
`any action for the recovery of response costs or expenditures under Chapter 6.8 of
`Division 20 of the California Health and Safety Code that were incurred by DTSC
`from the account.
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`DEFENDANT
`9. Manuel Reynoso is a citizen of California who, on information and
`belief, Plaintiffs allege resides in Orange County. Reynoso operated a metal plating
`and finishing business under the Orange County Metal Processing name since at
`least 1976. Reynoso is an “owner” and/or “operator” of a facility, as that term is
`defined in CERCLA section 107(a)(1), 42 U.S.C. § 9607(a)(1). Reynoso was also
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 4 of 10 Page ID #:4
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`an “owner” and/or “operator” of a facility at the time of disposal of hazardous
`substances under CERCLA section 107(a)(2), 42 U.S.C. § 9607(a)(2).
`OCMP SITE
`10. The Site is located at 1711 Kimberley Avenue, Fullerton, California,
`92831. The Site occupies approximately 14,000 square feet of a parcel identified
`with Assessors’ Parcel Number 033-270-30.
`11. Orange County Metal Processing (“OCMP”) was a metal plating and
`finishing business located in Fullerton, California. OCMP was a “facility” as that
`term is defined in section 107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1).
`12. Plaintiffs are informed and believe, and based on such information and
`belief allege, that OCMP began operation at the Site in or before 1976, and that
`OCMP continued to operate as a metal plating business at the Site until 2011.
`13. OCMP’s operations primarily consisted of finishing and coating metal
`parts used by automobile and computer manufacturers. OCMP used chromium,
`cadmium, zinc, and solvent metal degreasers including trichloroethylene (“TCE”)
`and tetrachloroethylene (“PCE”), among other hazardous substances, in its metal
`finishing and plating, and related operations.
`14. As a result of OCMP’s operations, hazardous substances within the
`definition of section 101(14) of CERCLA, 42 U.S.C. § 9601(14), were released into
`the environment at and from the Site within the meaning of section 101(22) of
`CERCLA, 42 U.S.C. § 9601(22). These hazardous substances include hexavalent
`chromium, cadmium, cyanide compounds, copper, zinc, PCE, and TCE that have
`been identified in the soil and/or groundwater at the Site.
`15. DTSC conducted an inspection of the OCMP Site on September 20,
`2007. During the inspection, DTSC staff observed chemical stains and discoloration
`on the floor near the zinc plating line; rusted tanks with chemical residue on the
`tank sides in the cadmium plating line; tanks that were partially dissolved by
`chemicals, leaving an uneven, jagged edge; and wet and/or oily floors in a storage
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 5 of 10 Page ID #:5
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`area and beneath cadmium plating line tanks. After the inspection DTSC
`determined that further investigation was needed to determine the extent of the
`releases of hazardous substances.
`16. DTSC and Mr. Reynoso entered into a Corrective Action Consent
`Agreement on March 5, 2009, which required Mr. Reynoso to perform further
`investigation of the Site under DTSC’s oversight, and to pay DTSC’s costs incurred
`in the implementation of the Consent Agreement.
`17. On August 22, 2011, DTSC issued an Imminent and/or Substantial
`Endangerment Determination (“ISE Determination”) for the Site. The ISE
`Determination found that the Site was contaminated with hazardous substances
`including cadmium, PCE, and TCE. The ISE Determination concluded that a
`response action was necessary because there may be a significant public health risk
`to employees and occupants of the buildings at the Site.
`18. Beginning in 2011 and continuing through May 2015, DTSC conducted
`remedial investigations into the soil, soil vapor, and groundwater conditions at the
`Site. These actions included collecting and analyzing samples of soil, soil gas, and
`groundwater; monitoring groundwater; and implementing a soil vapor extraction
`pilot study.
`19. On May 28, 2015, DTSC approved a Feasibility Study / Remedial Action
`Plan (“FS/RAP”) for the OCMP Site and an adjacent site.
`20. From 2015 to present, DTSC has implemented the remedial actions
`identified in the FS/RAP, including soil excavation, installation of pilot systems of
`in-situ chemical oxidation for treating groundwater and soil vapor extraction, and
`ongoing monitoring.
`21. Based on the above, from 2011 until the present, DTSC has taken
`“response” actions at the Site, as that term is defined in section 101(25) of
`CERCLA, 42 U.S.C. § 9601(25), related to the release and/or threatened release of
`hazardous substances at the Site. The response actions include, but are not limited
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 6 of 10 Page ID #:6
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`to, investigations of soil, soil vapor, and groundwater, development of the FS/RAP,
`soil excavation, pilot studies of groundwater treatment and soil vapor extraction,
`and ongoing monitoring.
`22. As a result of DTSC’s response actions at the Site, Plaintiffs have
`incurred response costs related to the release and/or threatened release of hazardous
`substances at, around, and/or beneath the Site.
`23. Plaintiffs unpaid costs related to the OCMP Site from 2007 through June
`2021 total $4,066,186, exclusive of interest.
`24. Plaintiffs have incurred and expect to continue to incur additional
`response costs related to the release and/or threatened release of hazardous
`substances at, around, and/or beneath the Site.
`FIRST CLAIM FOR RELIEF
`(Cost Recovery Claim Pursuant to Section 107(a) of CERCLA)
`25. Plaintiffs re-allege and incorporate by reference the allegations in each of
`the preceding paragraphs as though fully set forth herein.
`26. The Site, and the horizontal and vertical extent of the hazardous
`substance contamination caused by releases of hazardous substances from the Site,
`including, without limitation, any area where any hazardous substance from the Site
`has come to be located, is a “facility” within the meaning of section 101(9)(A) and
`(9)(B) of CERCLA, 42 U.S.C. § 9601(9)(A), (9)(B).
`27. Defendant is a “person” within the meaning of section 101(21) of
`CERCLA, 42 U.S.C. § 9601(21).
`28. DTSC, in its capacity as an agency of the State of California, is a “State”
`for purposes of recovery of response costs under section 107(a) of CERCLA, 42
`U.S.C. § 9607(a).
`29. Defendant is an “owner” and/or “operator” of the Site, and was an
`“owner” and/or “operator” of the Site “at the time of disposal of a[] hazardous
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 7 of 10 Page ID #:7
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`substance” there, as those terms are used in section 107(a) of CERCLA, 42 U.S.C.
`§ 9607(a).
`30. The hazardous and solid wastes treated and/or disposed of at the Site
`contained, without limitation, compounds that can migrate through groundwater,
`including, but not limited to, the following: hexavalent chromium, cadmium,
`cyanide compounds, copper, zinc, PCE, and TCE. These wastes, which are present
`at the Site, contained “hazardous substances,” which are defined in section 101(14)
`of CERCLA, 42 U.S.C. § 9601(14). There has been a “release” or threatened
`release of hazardous substances, including but not limited to those included in this
`paragraph, from the Site into the “environment,” within the meaning of sections
`101(8) and 101(22) of CERCLA, 42 U.S.C. §§ 9601(8) and 9601(22).
`31. Plaintiffs have incurred response costs not inconsistent with the National
`Contingency Plan, 40 C.F.R. Part 300, resulting from the releases or threatened
`releases of hazardous substances from the Site, within the meaning of section
`101(25) of CERCLA, 42 U.S.C. § 9601(25). These response costs include, but are
`not limited to, costs to monitor, assess, evaluate, and/or respond to the release
`and/or threatened release of hazardous substances at the Site, as defined in section
`101(25) of CERCLA, 42 U.S.C. § 9601(25). Plaintiffs are continuing to incur such
`costs, and Plaintiffs will continue to incur such costs in the future.
`32. Defendant is jointly and severally liable, without regard to fault, pursuant
`to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for Plaintiffs’ responses costs
`resulting from the release or threat of release of hazardous substances from the Site.
`33. Pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), Defendant
`is also liable for interest accrued on Plaintiffs’ response costs.
`SECOND CLAIM FOR RELIEF
`(Claim for Declaratory Relief Pursuant to Section 113(g)(2) of CERCLA)
`34. Plaintiffs re-allege and incorporate by reference the allegations in each of
`the preceding paragraphs as though fully set forth herein.
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 8 of 10 Page ID #:8
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`35. Under section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), Plaintiffs
`are entitled to a declaratory judgment that Defendant is jointly and severally liable
`to Plaintiffs for any responses costs Plaintiffs have incurred, and for any further
`response costs Plaintiffs incur in the future.
`THIRD CLAIM FOR RELIEF
`(In the Alternative, for Recovery of Response Costs Pursuant to California
`Health and Safety Code §§ 25360, 25361)
`36. Plaintiffs re-allege and incorporate by reference the allegations in each of
`the preceding paragraphs as though fully set forth herein.
`37. Pursuant to section 25360 of the California Health and Safety Code,
`DTSC may bring an action against responsible parties in order to recover all
`response costs incurred in responding to a release or threatened release of a
`hazardous substance. The Toxic Substances Control Account may sue in its own
`name, and it shall be a party to any action for recovery of costs or expenditures
`incurred from the state account pursuant to the Hazardous Substances Account Act.
`Cal. Health & Saf. Code §§ 25331, 25361(a).
`38. Hexavalent chromium, cadmium, cyanide compounds, copper, zinc,
`PCE, and TCE, are “hazardous substances” as defined by section 25316 of the
`California Health and Safety Code.
`39. There has been a “release” or threatened release of hazardous substances,
`including but not limited to those included in this paragraph, from the Site into the
`environment, as defined by Health and Safety Code section 25320.
`40. Plaintiffs have incurred costs associated with “response actions,” as
`defined in section 25323.3 of the Health and Safety Code, in abating the releases or
`threatened releases of hazardous substances at the Site.
`41. Defendant is a liable “person” as defined in section 25319 of the Health
`and Safety Code.
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 9 of 10 Page ID #:9
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`42. Defendant is liable to Plaintiffs under sections 25360 and 25361 of the
`California Health and Safety Code for any costs incurred by Plaintiffs. The amount
`of any costs which may be recovered may include interest at the rate provided by
`law.
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`FOURTH CLAIM FOR RELIEF
`(In the Alternative, for Declaratory Relief
`Pursuant to California Health and Safety Code § 25360)
`43. Plaintiffs re-allege and incorporate by reference the allegations in each of
`the preceding paragraphs as though fully set forth herein.
`44. Plaintiffs have incurred and expect to continue to incur response costs
`related to the release and threatened release of hazardous substances at and from the
`Site.
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`45. Pursuant to California Health and Safety Code sections 25360 and
`California Code of Civil Procedure section 1060, Plaintiffs are entitled to a
`declaratory judgment that Defendant is liable in any subsequent action or actions by
`Plaintiffs to recover any further costs incurred in response to the release and/or
`threatened release of hazardous substances into the environment at or from the Site.
`REQUEST FOR RELIEF
` WHEREFORE, Plaintiffs pray for judgment against Defendant as follows:
`1. For a judgment that Defendant is jointly and severally liable to Plaintiffs,
`without regard to fault, for all costs of response, removal, and remedial actions,
`including, but not limited to, implementation and oversight costs, incurred by
`Plaintiffs and resulting from release(s) and/or threatened release(s) of hazardous
`substances at, beneath, above, and/or from the Site;
`2. For a declaration that Defendant is jointly and severally liable to
`Plaintiffs, without regard to fault, for all future costs, including implementation and
`oversight costs, incurred by Plaintiffs as the result of any release(s) and/or
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`COMPLAINT
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`Case 8:22-cv-00136 Document 1 Filed 01/26/22 Page 10 of 10 Page ID #:10
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`threatened release(s) of hazardous substances at, beneath, above, and/or from the
`Site;
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`3. For Plaintiffs’ costs of suit;
`4. For Plaintiffs’ attorneys’ fees;
`5. For prejudgment interest; and
`6. For such other and further relief as the court deems just and proper
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`Dated: January 26, 2022
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`Respectfully submitted,
`ROB BONTA
`Attorney General of California
`DAVID A. ZONANA
`Supervising Deputy Attorney General
`
`/s/ Heather M. Lewis
`HEATHER M. LEWIS
`SOMERSET PERRY
`Deputy Attorneys General
`Attorneys for Plaintiffs
`California Department of Toxic
`Substances Control and the Toxic
`Substances Control Account
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`COMPLAINT
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