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`Case 2:21-cv-01739-WBS-JDP Document 1 Filed 09/24/21 Page 1 of 12
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`
`ROB BONTA
`Attorney General of California
`TIMOTHY E. SULLIVAN, SBN 197054
`Supervising Deputy Attorney General
`DONALD ROBINSON, SBN 72402
`SOMERSET PERRY, SBN 293316
`Deputy Attorneys General
`1515 Clay Street, 20th Floor
`P.O. Box 70550
`Oakland, CA 94612-0550
`Telephone: (510) 879-0852
`Fax: (510) 622-2270
`
`Attorneys for Plaintiffs
`Department of Toxic Substances Control and the
`Toxic Substances Control Account
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`Case No.
`COMPLAINT FOR RECOVERY OF
`RESPONSE COSTS and DECLARATORY
`RELIEF (42 U.S.C. §§ 9601 et seq.)
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`
`
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`
`
`CALIFORNIA DEPARTMENT OF TOXIC
`SUBSTANCES CONTROL and the TOXIC
`SUBSTANCES CONTROL ACCOUNT,
`
`Plaintiffs,
`
`
`
`v.
`
`EXXON MOBIL CORPORATION; E.I.
`DUPONT DE NEMOURS AND COMPANY,
`INC.; CHEVRON U.S.A., INC.; CHEVRON
`ORONITE COMPANY LLC; SHELL OIL
`COMPANY; PACIFIC GAS AND ELECTRIC
`COMPANY; PROLOGIS, INC.; FMC
`CORPORATION; UNION PACIFIC
`RAILROAD COMPANY; UNITED STATES
`STEEL CORPORATION; INTERNATIONAL
`BUSINESS MACHINES CORPORATION;
`and BAYER CROPSCIENCE, INC.,
`
`Defendants.
`
`
`
`Plaintiffs, the California Department of Toxic Substances Control (“DTSC”) and the Toxic
`
`Substances Control Account (collectively referred to herein as “Plaintiffs”) allege as follows:
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`1
`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`Case 2:21-cv-01739-WBS-JDP Document 1 Filed 09/24/21 Page 2 of 12
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`STATEMENT OF THE CASE
`1. This is a civil action brought by Plaintiffs against Exxon Mobil Corporation; E.I.
`DuPont De Nemours and Company, Inc.; Chevron USA, Inc.; Chevron Oronite Company LLC;
`Shell Oil Company; Pacific Gas and Electric Company; Prologis, Inc.; FMC Corporation; Union
`
`Pacific Railroad Company; United States Steel Corporation; International Business Machines
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`Corporation; and Bayer CropScience, Inc. (each individually referred to herein as a “Defendant”
`and collectively referred to herein as the “Defendants”) under sections 107(a) of the
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`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
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`hazardous substances at, beneath, above, and/or from the Panoche landfill (“Panoche”), a closed
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`hazardous waste treatment and disposal landfill located in Solano County, California.
`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 each
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`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 result of any release or
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`threatened release of a “hazardous substance,” as defined in CERCLA section 101(14), 42 U.S.C.
`
`§ 9601(14), at Panoche.
`3. Panoche was operated as a hazardous and solid waste landfill until it ceased accepting
`waste in or about 1986. Panoche, and the horizontal and vertical extent of contamination caused
`
`by the releases and threatened releases of hazardous substances from Panoche, is a “facility”
`within the meaning of sections 101(9)(A) and 101(9)(B) of CERCLA, 42 U.S.C. §§ 9601(9)(A),
`
`9601(9)(B).
`
`JURISDICTION AND VENUE
`4. The 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).
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`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`5. 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.
`PLAINTIFFS
`6. DTSC is a public agency of the State of California, organized and existing under
`California Health and Safety Code sections 58009 and 58010. DTSC has the authority to protect
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`California’s people and environment from the harmful effects of toxic substances by restoring
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`contaminated resources, enforcing hazardous waste laws, reducing hazardous waste generation,
`and encouraging the manufacture of chemically safer products. See, e.g., Cal. Health & Safety
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`Code §§ 25100-25259, §§ 25300-25359.45, and §§ 58009-58010. DTSC has authority under
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`state law to determine whether there has been a release and/or threatened release of a hazardous
`substance and to respond to releases and/or threatened releases of a hazardous substance.
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`7. 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
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`25361(a), the account shall be a party in any action for the recovery of response costs or
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`expenditures under Chapter 6.8 of Division 20 of the California Health and Safety Code that were
`incurred by DTSC from the account.
`
`DEFENDANTS
`8. Defendant EXXON MOBIL CORPORATION (“EXXON”) is a corporation
`organized and existing under the laws of the State of New Jersey. DTSC is informed and
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`believes, and based on such information and belief alleges, that EXXON has its principal place of
`
`business in Irving, Texas. DTSC is further informed and believes, and based on such information
`and belief alleges, that EXXON “arranged for disposal or treatment … of hazardous substances,”
`
`as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`
`9. Defendant E.I. DUPONT DE NEMOURS & COMPANY, INC. (“DUPONT”) is a
`corporation organized and existing under the laws of the State of Delaware. DTSC is informed
`
`and believes, and based on such information and belief alleges, that DUPONT has its principal
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`3
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`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`place of business in Wilmington, Delaware. DTSC is further informed and believes, and based
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`on such information and belief alleges, that DUPONT “arranged for disposal or treatment … of
`hazardous substances,” as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at
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`Panoche.
`
`10. Defendant CHEVRON U.S.A. INC. (“CHEVRON USA”) is a corporation organized
`and existing under the laws of the State of Pennsylvania. DTSC is informed and believes, and
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`based on such information and belief alleges, that CHEVRON USA has its principal place of
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`business in San Ramon, California. DTSC is further informed and believes, and based on such
`information and belief alleges, that CHEVRON USA (including for itself and by and through its
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`division known as Chevron Products Company) “arranged for disposal or treatment … of
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`hazardous substances,” as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at
`Panoche.
`
`11. Defendant CHEVRON ORONITE COMPANY LLC is a Delaware limited liability
`company. DTSC is informed and believes, and based on such information and belief alleges, that
`Defendant CHEVRON ORONITE COMPANY LLC is the successor-in-interest to Chevron
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`Chemical Company, which DTSC is informed and believes, and based on such information and
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`belief alleges, “arranged for disposal or treatment … of hazardous substances,” as set forth in
`section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`
`12. Defendant SHELL OIL COMPANY (“SHELL”) is a corporation organized and
`existing under the laws of the State of Delaware. DTSC is informed and believes, and based on
`such information and belief alleges, that SHELL has its principal place of business in Houston,
`
`Texas. DTSC is further informed and believes, and based on such information and belief, alleges,
`
`that SHELL “arranged for disposal or treatment … of hazardous substances,” as set forth in
`section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`
`13. Defendant PACIFIC GAS & ELECTRIC COMPANY (“PGE”) is a corporation
`organized and existing under the laws of the State of California. DTSC is informed and believes,
`and based on such information and belief alleges, that PGE has its principal place of business in
`
`San Francisco, California. PGE “arranged for disposal or treatment … of hazardous substances,”
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`4
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`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`
`14. Defendant PROLOGIS, INC. (“PROLOGIS”) is a real estate investment firm with
`headquarters in San Francisco, California. DTSC is informed and believes, and based on such
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`information and belief alleges, that PROLOGIS, through its related entity PROLOGIS
`
`CALIFORNIA, INC., is the successor, through a series of mergers and acquisitions, to Southern
`Pacific Development Company, which DTSC is informed and believes, and based on such
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`information and belief alleges, “arranged for disposal or treatment … of hazardous substances,”
`
`as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`15. Defendant FMC CORPORATION (“FMC”) is a corporation organized and existing
`under the laws of the State of Delaware. DTSC is informed and believes, and based on such
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`information and belief alleges, that FMC has its principal place of business in Philadelphia,
`Pennsylvania. DTSC is further informed and believes, and based on such information and belief
`
`alleges, that FMC “arranged for disposal or treatment … of hazardous substances,” as set forth in
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`section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`16. Defendant UNION PACIFIC RAILROAD, INC. (“UNION PACIFIC”) is a
`corporation organized and existing under the laws of the State of Delaware. DTSC is informed
`
`and believes, and based on such information and belief alleges, that UNION PACIFIC has its
`principal place of business in Omaha, Nebraska. DTSC is informed and believes, and based on
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`such information and belief alleges, that UNION PACIFIC is the successor-in-interest to
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`Southern Pacific Transportation Company, which DTSC is informed and believes, and based on
`such information and belief alleges, “arranged for disposal or treatment … of hazardous
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`substances,” as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at Panoche.
`
`17. Defendant UNITED STATES STEEL CORPORATION (“U.S. STEEL”) is an
`integrated steel producer with headquarters in Pittsburgh, Pennsylvania. DTSC is informed and
`
`believes, and based on such information and belief alleges, that U.S. STEEL “arranged for
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`disposal or treatment … of hazardous substances,” as set forth in section 107(a) of CERCLA, 42
`U.S.C. § 9607(a), at Panoche.
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`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`18. Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION (“IBM”)
`is a corporation organized and existing under the laws of the State of New York. DTSC is
`informed and believes, and based on such information and belief alleges, that IBM has its
`
`principal place of business in White Plains, New York. DTSC is informed and believes, and
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`based on such information and belief alleges, that IBM “arranged for disposal or treatment … of
`hazardous substances,” as set forth in section 107(a) of CERCLA, 42 U.S.C. § 9607(a), at
`
`Panoche.
`
`19. Defendant BAYER CROPSCIENCE, INC. (“BAYER”) is a German multinational
`pharmaceutical and life sciences company corporation organized and existing under the laws of
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`Germany. DTSC is informed and believes, and based on such information and belief alleges, that
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`BAYER is the successor to Stauffer Chemical Company, which DTSC is informed and believes,
`and based on such information and belief alleges, “arranged for disposal or treatment … of
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`hazardous substances,” as those terms are defined in section 107(a) of CERCLA, 42 U.S.C. §
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`9607(a), at Panoche.
`20. DTSC is informed and believes, and based on such information and belief alleges,
`that each Defendant knowingly arranged for the disposal of its hazardous substances in
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`California.
`
`THE PANOCHE “FACILITY”
`21. Panoche (referred to as the “Panoche Facility” in the 2001 Revised Part A application
`filed with the United States Environmental Protection Agency) is a landfill located at 2251 Lake
`Herman Road, Benicia, Solano County, California and is approximately two miles northeast of
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`Benicia, in an unincorporated portion of Solano County. Panoche and the surrounding area
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`consist of rolling hills and intervening valleys. The surrounding land is used primarily for
`pasture, with some municipal and industrial operations in the vicinity. Panoche is also located
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`near an unnamed drainage to the south that is a tributary to Suisun Marsh and Suisun Bay.
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`22. Panoche consists of approximately 500 acres and includes an area, approximately 248
`acres in size, that is permitted for postclosure operations. This postclosure operations area is
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`identified by Solano County Assessor's Parcel numbers 181-270-01 (243.59 acres) and a small
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`portion of 181-240-05 (4.41 acres). The remaining acres are Solano County Assessor's Parcel
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`numbers 181-270-05 (134.5 acres) and 181-240-05 (117.89 acres).
`23. Panoche was a Class I hazardous waste management facility from 1968 to 1986.
`Panoche also possessed a land use permit from Solano County to accept industrial solid, liquid,
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`and sludge waste for treatment, recycling, storage, and land disposal. Panoche operated under the
`name J & J Disposal Company until 1975, at which time it was purchased by an entity known as
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`the IT Corporation. IT Corporation changed the landfill name in 1986 to the “Panoche Facility.”
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`24. During the period Panoche operated as a Class I hazardous waste treatment and
`disposal landfill, it received and disposed of more than 550,000 tons of waste, including
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`hazardous waste. The wastes included, without limitation: caustic and acidic liquids and solids;
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`petroleum refining sludges; catalysts; hydrogen sulfide abatement sludges; oily slurries; truck
`washout debris; inorganic precipitates; contaminated soils; organic sludges; shredded currency;
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`and paint pigment sludges. Waste management practices included, without limitation, biological
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`treatment, neutralization, evaporation in ponds, and burial of wastes in landfills and trenches.
`25. After Panoche ceased accepting hazardous substances for treatment, storage, and
`disposal, the IT Corporation undertook formal closure activities and, on March 27, 2003, Panoche
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`received closure certification. Panoche transitioned to postclosure status pursuant to a
`“postclosure permit” approved by DTSC on June 20, 2003. See Cal. Health & Safety Code §§
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`25245-25248. A subsequent postclosure permit renewal application did not qualify for renewal
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`because of inadequate financial assurances.
`26. The on-going, postclosure operations required at Panoche include, but are not limited
`to: recovery and management of groundwater, leachate, and soil vapor contaminated by past
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`waste management activities; routine inspections; maintenance and compliance activities; and
`long-term monitoring and reporting of groundwater, leachate, and soil vapor.
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`27. On November 29, 2001, the title of the Panoche property was transferred to an
`affiliated entity known as IT Lake Herman Road, LLC, a California limited liability company.
`28. In 2002, IT Corporation (the former owner and operator of Panoche) filed for
`bankruptcy protection and, on May 1, 2004, the “IT Environmental Liquidating Trust” (“ITELT”)
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`was established to oversee the long-term post closure operation, maintenance, and upkeep of
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`Panoche as part of the conclusion of the bankruptcy proceedings. Also on May 1, 2004, ITELT
`became the operator of Panoche.
`
`29. A requirement applicable to Panoche is that the owner/operator–i.e., ITELT–must
`obtain and maintain sufficient financial assurances that it can complete the required postclosure
`activities. See Cal. Health & Saf. Code § 25245(a)(2); Cal. Code Regs., tit. 22, §
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`66264.145(e)(3).
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`30. On February 29, 2016, DTSC determined that ITELT was in violation of the
`postclosure requirements, in that the amount determined necessary for the purpose of
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`demonstrating adequate financial assurances for completion of the postclosure activities was
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`underfunded by an amount no less than $7,501,025.75.
`31. On April 5, 2016, ITELT informed DTSC in writing that it had “no additional
`financial assets, or mechanisms in place, to meet the financial assurance obligations” required by
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`California law.
`32. In written correspondence dated July 28, 2016, DTSC notified ITELT in writing that
`the re-calculated shortfall in financial assurances for postclosure activities at Panoche is
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`$25,346,588, based upon the 30-year financial assurance period, which amount is periodically
`reassessed and financial assurances renewed for another 30-year period to provide for long-term
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`financial assurance for postclosure activities at Panoche. In this same July 28, 2016 letter, DTSC
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`determined – based on ITELT’s April 5, 2016 letter – that ITELT would not be able to meet the
`financial assurance obligations for continued maintenance of the closed units, including the
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`amount necessary for renewal of its permit to conduct the required postclosure activities.
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`33. On November 29, 2016, DTSC issued an Imminent and Substantial Endangerment
`Determination and Order and Remedial Action Order (ISE Order, Docket Number: HSA-
`
`FY16/17-050) under the authority of Health and Safety Code sections 25358.3(a),
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`25355.5(a)(1)(B), 58009 and 58010. DTSC issued this order, which was amended on February
`17, 2017, May 26, 2017, and December 6, 2017, to address threatened releases of hazardous
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`substances if Panoche is not properly managed when existing funds are depleted, and a permanent
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`remedy has not been implemented. (The November 29, 2016 order, as amended, shall be referred
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`to as the “ISE Order.”) The ISE Order named ITELT and a few generators [i.e., “arrangers”],
`including the Defendants, or affiliates of Defendants, as respondents required to perform the work
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`described in the ISE Order.
`
`34. There have been “releases” of hazardous substances from Panoche, as defined in
`section 101(22) of CERCLA, 42 U.S.C. § 9601(22), which resulted in serious impacts to the
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`environment (e.g., air, soil, soil vapor, surface water, groundwater, or other media) and allowed
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`exposure (e.g., inhalation, dermal absorption, and ingestion) to human and ecological receptors on
`and off Panoche. Further releases of hazardous substances from Panoche threaten to result in
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`similar serious impacts to the environment and exposure to human and ecological receptors.
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`
`
`FIRST CLAIM FOR RELIEF
`(Cost Recovery Claim Against All Defendants Pursuant to Section 107(a) of CERCLA)
`35. Plaintiffs re-allege and incorporate by reference the allegations in Paragraphs 1
`through 34 above, as though fully set forth herein.
`
`36. Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), provides in relevant part that
`any person who arranged for disposal or treatment, or arranged with a transporter for transport for
`disposal or treatment, of hazardous substances at a facility from which there has been a release or
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`a threatened release of a hazardous substance which results in the incurrence of response costs,
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`shall be liable for all costs of removal or remedial action incurred by a State not inconsistent with
`the National Oil and Hazardous Substances Pollution Contingency Plan (“National Contingency
`
`Plan”), 40 C.F.R. Part 300.
`
`37. Panoche, and the horizontal and vertical extent of the hazardous substance
`contamination caused by releases of hazardous substances from Panoche, including, without
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`limitation, any area where any hazardous substance from Panoche has come to be located, is a
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`“facility” within the meaning of section 101(9)(A) and (9)(B) of CERCLA, 42 U.S.C. §§
`9601(9)(A), 9601(9)(B).
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`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`38. Each Defendant is a “person” within the meaning of section 101(21) of CERCLA, 42
`U.S.C. § 9601(21).
`39. Each Defendant arranged for disposal or treatment, or arranged with a transporter for
`transport for disposal or treatment, of hazardous substances at Panoche. Hazardous substances
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`from Panoche have been released into the environment and there is a continuing threat of
`additional hazardous substance releases from Panoche. These releases and threatened releases
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`have resulted, and will continue to result, in Plaintiffs’ incurrence of response costs. Each
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`Defendant is liable to Plaintiffs for response costs Plaintiffs incurred at Panoche as a result of
`releases and threatened releases at Panoche, pursuant to section 107(a)(3) of CERCLA, 42,
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`U.S.C. § 9607(a)(3).
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`40. The hazardous and solid wastes treated and/or disposed of at Panoche contained,
`without limitation, metals such as arsenic, barium, cadmium, chromium (total), chloride, cobalt,
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`iron, lead, manganese, mercury, and vanadium, as well as volatile organics, such as benzene,
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`carbon tetrachloride, chlorobenzene, chloroform, 1,1-dichloroethane, 1,1-dichloroethene, 1,1-
`dichloropropene, cis-1,2-dichloroethene, trans-1,2-dichloroethene, tetrachloroethene (PCE),
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`trichloroethene (TCE), and vinyl chloride. These wastes, which are present at Panoche, contained
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`“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
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`limited to, those included in this paragraph, from Panoche into the “environment,” within the
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`meaning of sections 101(8) and 101(22) of CERCLA, 42 U.S.C. §§ 9601(8) and 9601(22).
`41. DTSC, in its capacity as an agency of the State of California, is considered a “State”
`for purposes of recovery of response costs under section 107(a) of CERCLA, 42 U.S.C. §
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`9607(a).
`42. 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
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`substances at and from Panoche, 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
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`and/or otherwise respond to the release and/or threatened release of hazardous substances at
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`COMPLAINT FOR RECOVERY OF RESPONSE COSTS (PANOCHE)
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`Case 2:21-cv-01739-WBS-JDP Document 1 Filed 09/24/21 Page 11 of 12
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`Panoche, as defined in Sections 101(23), (24) and (25) of CERCLA, 42 U.S.C. §§ 9601(23), (24)
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`and (25). Plaintiffs are continuing to incur such costs, and Plaintiffs will continue to incur such
`costs in the future.
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`43. Each 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’ response costs resulting from the
`release or threat of release of hazardous substances from Panoche.
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`44. Pursuant to section 107(a) of CERCLA, Defendants are also liable for interest
`accrued on Plaintiffs’ response costs.
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`SECOND CLAIM FOR RELIEF
`(Claim for Declaratory Relief Pursuant to section 113(g)(2) of CERCLA)
`45. Plaintiffs re-allege and incorporate by reference the allegations of the preceding
`paragraphs 1 through 44 above, as though fully set forth herein.
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`46. Under section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), Plaintiffs are entitled
`to a declaratory judgment that each Defendant is jointly and severally liable to Plaintiffs for any
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`response costs Plaintiffs have incurred, and for any further response costs Plaintiffs incur in the
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`future, resulting from the releases and/or threatened releases from Panoche.
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`REQUEST FOR RELIEF
`WHEREFORE, Plaintiffs pray for judgment against all Defendants as follows:
`1. For a judgment that each 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
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`to, oversight costs, incurred by Plaintiffs and resulting from release(s) and/or threatened release(s)
`of hazardous substances at, beneath, above, and/or from Panoche;
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`2. For a declaration that each defendant is jointly and severally liable to Plaintiffs,
`without regard to fault, for all future costs, including oversight costs, incurred by Plaintiffs as a
`result of any release(s) and/or threatened release(s) of hazardous substances at, beneath, above,
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`and/or from Panoche;
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`Case 2:21-cv-01739-WBS-JDP Document 1 Filed 09/24/21 Page 12 of 12
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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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`Respectfully submitted,
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`Dated: September 24, 2021
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`ROB BONTA
`Attorney General of California
`TIMOTHY E. SULLIVAN
`Supervising Deputy Attorney General
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`/s/ Somerset Perry
`SOMERSET PERRY
`DONALD A. ROBINSON
`Deputy Attorneys General
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`Attorneys for Plaintiffs Department of Toxic
`Substances Control and the Toxic Substances
`Control Account
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