Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 1 of 15
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`JASON R. FLANDERS, SBN 238007
`ERICA A. MAHARG, SBN 279396
`AQUA TERRA AERIS (ATA) LAW GROUP
`4030 Martin Luther King Jr. Way
`Oakland, CA 94609
`Telephone: (916) 202-3018
`Email: jrf@atalawgroup.com
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`NICOLE C. SASAKI, SBN 298736
`SAN FRANCISCO BAYKEEPER
`1736 Franklin Street, Suite 800
`Oakland, CA 94612
`Telephone: (510) 735-9700
`Email: nicole@baykeeper.org
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`Attorneys for Plaintiff
`SAN FRANCISCO BAYKEEPER
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO BAYKEEPER,
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` Plaintiff,
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`vs.
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`ALLIED ENGINEERING & PRODUCTION
`CORPORATION, ALLIED LAND COMPANY,
`and STONE BOATYARD, LLC,
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` Defendants.
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`Case No.:
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`COMPLAINT FOR INJUNCTIVE AND
`DECLARATORY RELIEF
`(Resource Conservation and Recovery Act,
`42 U.S.C. § 6972(a)(1)(B); Nuisance Per Se;
`Public Nuisance)
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 2 of 15
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`INTRODUCTION
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`1.
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`Plaintiff San Francisco Baykeeper (“Plaintiff” or “Baykeeper”) brings this action
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`against Defendants Allied Engineering & Production Corp. (“Allied Engineering”), Allied Land Co.
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`(“Allied Land”) (collectively “Allied”), and Stone Boatyard, LLC (“Stone”) (collectively
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`“Defendants”), to redress past and ongoing harms stemming from contamination of a Shoreline
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`Parcel, APN 70-195-19 (“Shoreline Parcel”) that abuts and is partially submerged by the Oakland
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`Inner Harbor Tidal Canal (“Oakland Estuary” or “Estuary”).1
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`2.
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`Allied Engineering operated a machine shop from 1951 to approximately 2011,
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`located at 2421 Blanding Avenue, Alameda, California (the “Facility”), and Allied Land owned the
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`real property where the Facility is located, until approximately December 2018.
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`3.
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`The Facility manufactured parts for the aviation industry, where it stored and used
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`hazardous materials, hydraulic oils, lubes, greases, fuels, coolants, and solvents. Pictures from
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`inspections by the California Department of Toxic Substances Control (“DTSC”) show that Allied
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`Engineering also stored metal waste and shavings on site.
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`4.
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`Neither Allied Engineering nor Allied Land ever owned the Shoreline Parcel, where
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`all or the majority of the metal waste is located. The Shoreline Parcel, at the time Baykeeper became
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`aware of the contamination, was owned by the United States, but since that time, title has transferred
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`to Stone. Stone also owns parcels adjacent to the Shoreline Parcel and the Facility.
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`5.
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`Based on information and belief, Baykeeper alleges that, while operating the Facility,
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`Allied dumped metal waste and shavings on the Shoreline Parcel. This metal waste has contaminated
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`and continues to contaminate the Shoreline Parcel and the Estuary.
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`6.
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`The metal waste on the Shoreline Parcel has leached and continues to leach metals into
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`the soil and into the Estuary. The contamination, including various heavy metals such as lead,
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`cadmium, chromium, nickel, copper, zinc, vanadium, and molybdenum, poses unacceptable risks to
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`the health of the surrounding ecosystem. Sampling indicates the presence of lead contamination in
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`the contaminated soil in excess of California Hazardous Waste Criteria.
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`1 The contaminated Shoreline Parcel may also include portions of APN 70-196-61.
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 3 of 15
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`7.
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`Baykeeper asserts the Defendants’ past and continuing violations of section
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`7002(a)(1)(B) of the Resource Conservation and Recovery Act (“RCRA”) may present an imminent
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`and substantial endangerment to health and the environment.
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`8.
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`Baykeeper asserts that the Defendants’ deposition, leaving, release, placement, and
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`dumping of metal waste and shavings in and around the Shoreline Parcel violates Alameda Mun.
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`Code §§ 18-22.6, 24-9.3, 23-4.3, and California Health and Safety Code § 117480, amongst other
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`laws, and thereby constitute nuisance per se.
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`9.
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`Baykeeper asserts that the Defendants’ deposition, leaving, release, placement, and
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`dumping of metal waste and shavings in and around the Shoreline Parcel constitutes a public nuisance.
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`JURISDICTION AND VENUE
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`10.
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`This is a civil suit brought pursuant to RCRA, 42 U.S.C. § 6972(a)(1)(B), 28 U.S.C. §
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`1331 (an action arising under the laws of the United States), and 28 U.S.C. § 2201 (declaratory relief).
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`11.
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`This Court has supplemental jurisdiction over state law claims pursuant to 28 U.S.C.
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`§ 1367(a) because the state law claims are related to the federal law claims and form part of the same
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`case or controversy. Such state law claims include nuisance per se and public nuisance.
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`12.
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`On or about June 10, 2020, Baykeeper provided notice of Stone’s violations of RCRA
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`and nuisance laws, and of Plaintiff’s intention to file suit against the Defendants, to the Administrator
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`of the United States Environmental Protection Agency (“EPA”), Andrew Wheeler; the U.S. Attorney
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`General, William Barr; the Administrator of EPA Region IX, John W. Busterud; the Acting Director
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`of the California Department of Resources & Recycling, Ken DaRosa; and to Stone’s registered Agent
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`for Service of Process, David S. Hall, as required by 42 U.S.C. § 6972(b)(2). A true and correct copy
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`of the June 10, 2020 Notice Letter (“Stone Notice Letter”) is attached as “Exhibit A” and incorporated
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`by reference herein.
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`13.
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`On or about July 10, 2020, Baykeeper provided notice of Allied Engineering’s and
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`Allied Land’s violations of RCRA and nuisance laws, and of Plaintiff’s intention to file suit against
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`the Defendants, to the Administrator of the EPA, Andrew Wheeler; the U.S. Attorney General,
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`William Barr; the Administrator of EPA Region IX, John W. Busterud; the Acting Director of the
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`California Department of Resources & Recycling, Ken DaRosa; and to Allied’s President/registered
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 4 of 15
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`Agent for Service of Process, Kassandra Miller, as required by 42 U.S.C. § 6972(b)(2). A true and
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`correct copy of the July 10, 2020 Notice Letter (“Allied Notice Letter”) is attached as “Exhibit B”
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`and incorporated by reference herein.
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`14. More than ninety (90) days have passed since the Stone Notice Letter and Allied
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`Notice Letter were received by the Defendants and the state and federal agencies. Neither EPA nor
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`the State of California has commenced or is diligently prosecuting a court action to redress the
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`violations alleged in this complaint.
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`15.
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`The Court has venue pursuant to 28 U.S.C. § 1391. At least one Defendant resides in
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`the District, and all Defendants reside in the State of California where the District is located. Id. at
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`§ 1391(b)(1).
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`16.
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`Alternatively, Venue is proper here because contaminated parcel(s) sit within the
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`district. Id. at § 1391(b)(2).
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`INTRADISTRICT ASSIGNMENT
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`17.
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`Intradistrict assignment of this matter to the San Francisco or Oakland Division of the
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`Court is appropriate pursuant to Civil Local Rule 3-2(d). The events or omissions which give rise to
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`Baykeeper’s claims occurred in Alameda County, which is under the jurisdiction of the San Francisco
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`or Oakland Division of the Northern District of California.
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`THE PARTIES
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`PLAINTIFF
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`San Francisco Baykeeper is an environmental non-profit public benefit corporation
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`organized in accordance with the laws of the State of California. Baykeeper’s approximately 3,500
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`members live and/or recreate in and around the San Francisco Bay area. Baykeeper’s mission is to
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`defend San Francisco Bay from the biggest threats and hold polluters accountable to create healthier
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`communities and help wildlife thrive. Baykeeper works to stop pollution, in part, by monitoring and
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`investigating pollution and its sources with the end goal of a Bay that is free from harmful pollution
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`and safe for recreation with resilient, healthy shorelines. Additionally, Baykeeper actively seeks
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`federal and state agency implementation of federal environmental laws, and, where necessary,
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 5 of 15
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`initiates enforcement actions on behalf of itself and its members. San Francisco Baykeeper’s offices
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`are located at 1736 Franklin Street, Suite 800, Oakland, CA, 94612.
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`Baykeeper and its individual members have an interest in the preservation and use of
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`waters in and around San Francisco Bay, including, but not limited to the Pacific Ocean, San
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`Francisco Bay, the Oakland Estuary, San Leandro Bay, San Pablo Bay, the Petaluma River, and their
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`tributaries. Specifically, Baykeeper’s members sail, swim, picnic, fish, hike, surf, paddle, standup
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`paddleboard, kayak, wade, bike, photograph and enjoy the wildlife in and around these waters,
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`including the reach at issue in this Notice Letter. The actions of Defendants results in numerous
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`injuries to Baykeeper’s interests, such as: loss, destruction, or damage to wetlands and waterways;
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`diminished aesthetic enjoyment; harm to wildlife, including federally protected species; degraded
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`water quality; and diminished quality of life. The ability of Baykeeper’s members to sail, swim,
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`picnic, fish, hike, surf, paddle, standup paddleboard, kayak, wade, bike, photograph and enjoy the
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`wildlife in and around these waters, and to use and enjoy the Oakland Estuary and the San Francisco
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`Bay, is harmed by Defendants’ violations of law.
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`20.
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`Plaintiff is informed and believes that Allied Engineering and Allied Land owned
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`DEFENDANTS
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`and/or operated the Facility from approximately 1951 to approximately 2011, and that it was during
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`this period that the adjacent Shoreline Parcel was contaminated with metal waste. Plaintiff is informed
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`and believes that Allied Engineering and Allied Land are business corporations incorporated under
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`the laws of the State of California. Based on information and belief, Baykeeper alleges that, while
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`operating the Facility, Allied dumped metal waste and shavings onto the Shoreline Parcel.
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`Plaintiff is informed and believes that Stone owns the Shoreline Parcel. Plaintiff is
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`informed and believes that Stone is a limited liability company under the laws of the State of
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`California. Based on information and belief, Baykeeper alleges that, while owning the Shoreline
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`Parcel, Stone has not cleaned up or removed the metal waste and shavings which Allied dumped onto
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`the Shoreline Parcel.
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 6 of 15
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`LEGAL BACKGROUND
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`RESOURCE CONSERVATION AND RECOVERY ACT
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`RCRA prohibits the disposal of solid waste, except at a sanitary landfill or hazardous
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`waste disposal facility. 42 U.S.C. §§ 6945(a), 6903(14).
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`RCRA defines “disposal” as “the discharge, deposit, injection, dumping, spilling,
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`leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such
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`solid waste … or any constituent thereof may enter the environment or be emitted into the air or
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`discharged into any waters.” Id. at § 6903(3).
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`24.
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`Under RCRA, the definition of “solid waste” is broad and includes “any garbage,
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`refuse, … and other discarded material, including solid, liquid, semisolid or contained gaseous
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`material resulting from … industrial … operations.” 42 U.S.C. § 6903(27).
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`25.
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`The citizen suit provision of RCRA allows for any person to commence a civil action
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`on their own behalf “against any person . . . who has contributed or who is contributing to the past or
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`present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which
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`may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. §
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`6972(a)(1)(B).
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`NUISANCE PER SE
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`26.
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`A nuisance per se occurs when the legislative body declares that a particular act is a
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`nuisance. Olson v. Beck, 2011 U.S. Dist. Lexis 114805 at *61 (N.D. Cal. 2011) (“A nuisance per se
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`exists where the nuisance is ‘legislatively declared.’”) Nuisance per se does not require the plaintiff
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`show harm. Rather a nuisance per se occurs as long as “the conditions specified in the statute or
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`ordinance [defining the nuisance] exist.” Id. at *62.
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`27.
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`Alameda Mun. Code § 18-22.6 prohibits any person from depositing, leaving or
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`maintaining any “refuse, rubbish, garbage, or other discarded or abandoned objects ... upon any public
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`or private lot of land in the City, so that the same might be or become a pollutant.” Alameda Mun.
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`Code §18-23.8 further declares that “any condition caused or permitted to exist in violation of any of
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`the provisions of this article … is declared and deemed a public nuisance.”
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 7 of 15
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`28.
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`Alameda Mun. Code § 24-9.3 “declares that any hazardous materials release in the
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`City is a public nuisance.” “Hazardous material” includes any material that “poses a significant actual
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`or potential hazard to human health or safety or to the environment.” Alameda Mun. Code § 24-9.2.
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`29.
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`Alameda Mun. Code § 23-4.3 states that “[a]ll weeds, rubble, rubbish or other rank
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`growth located upon private property … which are otherwise a menace to health or safety, are a public
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`nuisance.”
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`California Health and Safety Code § 117480 states that “[e]very person who places,
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`deposits, or dumps any garbage in or upon navigable waters of this state … is guilty of a
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`misdemeanor.”
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`California Civil Code § 3479 defines “nuisance” as “[a]nything which is injurious to
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`PUBLIC NUISANCE
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`health, … or is indecent or offensive to the senses, or an obstruction to the free use of property, so as
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`to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free
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`passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin.”
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`California Civil Code § 3480 defines “public nuisance” as “one which affects at the
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`same time an entire community or neighborhood, or any considerable number of persons, although
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`the extent of the annoyance or damage inflicted upon individuals may be unequal.”
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`33.
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`A person need not be an owner of the property where the nuisance occurs to be liable
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`for creating the nuisance. The “the critical question is whether the defendant created or
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`assisted in the creation of the nuisance.” City of Modesto Redevelopment Agency v. Sup. Ct., 119
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`Cal.App.4th 28, 38 (2004). A former property owner or operator, whose conduct created or assisted
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`in the creation of the nuisance is subject to liability. Similarly, the current owner of a property, who
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`may not be responsible for the initial conditions giving rise to the nuisance claim “assists in the
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`creation” of a continuing nuisance if it fails to abate a nuisance on its property. See id.
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`FACTUAL BACKGROUND
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`34.
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`Baykeeper members alerted Baykeeper to a stretch of the Estuary’s shoreline that was
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`contaminated with metal waste. Upon inspection, Baykeeper staff discovered that the contamination
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`consisted of metal shavings.
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 8 of 15
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`35.
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`The contamination is located on the Shoreline Parcel, APN 70-195-19, adjacent to the
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`Facility site. The Shoreline Parcel abuts and is partially submerged by the Oakland Inner Harbor Tidal
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`Canal (“Oakland Estuary” or “Estuary”).
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`36.
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`The Facility was formerly operated by Allied Engineering and owned by Allied Land,
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`located at 2421 Blanding Avenue in Alameda.
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`37. While in operation by Allied, the Facility manufactured parts for the aviation industry
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`where Allied stored and used hazardous materials, hydraulic oils, lubes, greases, fuels, coolants, and
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`solvents on the property. Pictures from inspections by DTSC show that Allied also stored metal
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`shavings on site.
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`38.
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`All information gathered by Baykeeper indicates that Allied dumped the metal
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`shavings along the shoreline while they operated at the Facility. The Shoreline Parcel was owned by
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`the United States, but has been transferred to Stone.
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`39.
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`Baykeeper is informed and believes that Stone is and has been aware of the metal
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`waste along the Shoreline Parcel since, or shortly after, its purchase of the land.
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`40.
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`Baykeeper is also informed and believes that in spite of Stone’s knowledge of the
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`presence of metal waste on the Shoreline Parcel, it has not remediated the contamination.
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`41.
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`The metal waste on the Shoreline Parcel has leached and continues to leach metals into
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`the soil and into the Estuary. The contamination, including various heavy metals, poses unacceptable
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`risks to the health of the surrounding ecosystem. Sampling indicates the presence of lead
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`contamination in excess of California Hazardous Waste Criteria and shows the presence of additional
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`metals above Tier 1 Environmental Screening Levels, including lead, cadmium, chromium, nickel,
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`copper, zinc, vanadium, and molybdenum.
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`42.
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`The Estuary is hydrologically connected to San Francisco Bay and San Leandro Bay.
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`Contamination entering the Estuary from the Shoreline Parcel, in turn results in contamination to both
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`San Leandro and San Francisco Bays.
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`43.
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`San Francisco Bay is an ecologically-sensitive waterbody and a defining feature of
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`Northern California. The Bay is an important and heavily-used resource, with special aesthetic and
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`recreational significance for people living in the surrounding communities. San Francisco Bay
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`provides complex estuarine habitat for a diverse collection of plant and animal species. The Bay’s
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`once-abundant and varied fisheries have been drastically diminished by pollution, and much of the
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`wildlife habitat of the Bay is degraded.
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`44.
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`The beneficial uses of San Francisco Bay and its tributaries include commercial and
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`sport fishing, estuarine habitat, fish migration, navigation, preservation of rare and endangered
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`species, water contact and non-contact recreation, shellfish harvesting, fish spawning, and wildlife
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`habitat. The beneficial uses of San Leandro Bay, which is adjacent and connected to the San Francisco
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`Bay, include commercial and sport fishing, estuarine habitat, fish migration, navigation, preservation
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`of rare and endangered species, water contact and non-contact recreation, and wildlife habitat.
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`45.
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`Heavy-metal contamination originating from the Shoreline Parcel adversely affects
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`the water quality of San Francisco Bay and San Leandro Bay and threatens the beneficial uses and
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`ecosystem of those interconnected habitats, including key habitat for threatened and endangered
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`species. The level of metal contamination endangers local birds, fish, and other wildlife. The metal
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`waste, which is clearly visible to a casual observer, also creates a visual blight for anyone observing
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`the shoreline, including Baykeeper’s members.
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`46.
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`On December 16, 2019, a Draft Remedial Action Plan (“Action Plan”) for the Facility,
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`was prepared by Apex Companies, LLC, on behalf of TCI 2421 Blanding, LLC, who recently
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`purchased the Facility site from Allied Land.
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`47.
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`The Action Plan was prepared to address subsurface impacts at the site of past
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`industrial use. Action Plan at 1-1. The Action Plan states that the Regional Water Quality Control
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`Board – San Francisco Bay Region, San Francisco Bay Conservation and Development Commission,
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`City of Alameda, and the Alameda County Department of Environmental Health are all expected to
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`play a role in the implementation of the Action Plan. Id.
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`48.
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`The Action Plan addresses approximately 2.9 acres of the Facility, which does not
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`include the Shoreline Parcel, which it characterizes as “a strip of land owned by a separate owner
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`which abuts the Oakland Estuary to the northeast.” Action Plan at 2-1. The Action Plan addresses the
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`“strip of land between the manufacturing building and the adjacent parcel to the northeast” (the
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`Shoreline Parcel), which it calls the Rear Yard Area. Id.
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 10 of 15
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`49.
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`The Action Plan acknowledges that metal debris exists on the Shoreline Parcel: “Prior
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`investigations have identified visible metal debris, also called swarf, on the off-site shoreline.” Action
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`Plan at 2-2.
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`50.
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`The Action Plan also acknowledges that metal debris is located on the Rear Yard Area:
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`Table 7-1, “Summary of Recognized Environmental Conditions, 2421 Blanding Avenue, Alameda,
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`California”, with a heading “2421 Blanding Avenue – On-Site Metal Shavings” notes that a previous
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`study “observed metal shavings along the property northeast of the Site building and along the bank
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`of the Oakland Estuary. The metal shavings were observed to be located on both the Site and the off-
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`Site property owned by Stone Boat Yard.” Action Plan, Table 7-1, at 3. Table 7-1 details a history of
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`testing since 2006 at the location of the metals that has found metals present. Id. The Action Plan
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`further states that “[the Rear Yard Area] has historic detections of metals in soil exceeding relevant
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`screening levels for lead, chromium, and cadmium.” Action Plan at 2-2.
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`51.
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`Table 7-1 of the Action Plan further details “Metal Shavings – Stone Boat Yard” as a
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`known condition and that it is contaminating the Estuary based on sediment samples taken in 2015.
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`Action Plan, Table 7-1, at 8.
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`52.
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`in the plan.
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`Despite the clear impacts of metal debris from the Shoreline Parcel, it is not included
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`PRIVATE ATTORNEY GENERAL DOCTRINE
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`53.
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`Plaintiff brings this action as a private attorney general pursuant to California Code of
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`Civil Procedure section 1021.5, and any other applicable legal theory, to enforce important rights
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`affecting the public interest.
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`54.
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`Issuance of the relief requested in this Complaint will confer significant benefits on
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`the general public by, among other benefits: requiring Defendants to remove the metal shavings
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`detailed herein, and lawfully dispose of them, as well as abate the contamination.
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`55.
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`Issuance of the relief requested in this Complaint will result in the enforcement of
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`important rights affecting the public interest, by compelling Defendants to remove the metal waste
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`and abate the contamination, to protect public health and natural resources.
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 11 of 15
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`56.
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`The necessity and financial burden of enforcement are such as to make an award of
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`attorneys’ fees appropriate in this proceeding. Absent enforcement by Plaintiff, the metal pollution
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`detailed herein might otherwise have evaded legally adequate removal and abatement.
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`57.
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`Plaintiff has served a copy of this Complaint on the California Attorney General’s
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`office to give notice of Plaintiff’s intent to bring this proceeding as private attorneys general under
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`California Code of Civil Procedure section 1021.5, attached as “Exhibit C.”
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`FIRST CAUSE OF ACTION
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`Against All Defendants
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`Violations of RCRA, § 7002(a)(1)(B)
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`58.
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`Plaintiff incorporates by reference each and every paragraph of this Complaint as
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`though they were set forth in full herein.
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`59.
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`Through its past ownership and operation of the Facility, Allied is a past and present
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`generator of solid waste. Allied has contributed and is contributing to the past and present handling,
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`storage, treatment, transportation, and disposal of solid waste metal shavings and debris at the
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`Shoreline Parcel in a manner that may present an imminent and substantial endangerment to health
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`and the environment.
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`60.
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`Through its ownership of the Shoreline Parcel, Stone is a past and present generator
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`of solid waste. Stone has contributed and is contributing to the past and present handling, storage,
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`treatment, transportation, and disposal of solid waste metal shavings and debris at the Shoreline
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`Parcel in a manner that may present an imminent and substantial endangerment to health and the
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`environment.
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`61.
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`An action for relief against Defendants for the imminent and substantial
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`endangerment described in this Complaint is authorized by RCRA section 7002(a)(1)(B), 42 U.S.C.
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`§ 6972(a)(1)(B). Defendants’ acts and omissions that may be posing an imminent and substantial
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`endangerment within the meaning of RCRA section 702(a)(1)(B), as alleged above, are continuing.
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`If allowed to continue, these acts and omissions will irreparably harm Plaintiff.
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`62.
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`Defendants are strictly, jointly, and severally liable for abatement of this imminent and
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`substantial endangerment. Plaintiff is entitled to injunctive relief restraining and enjoining Defendants
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 12 of 15
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`and requiring each of them, jointly and severally, promptly and completely to take such action as may
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`be necessary to abate the imminent and substantial endangerment at issue.
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`63.
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`For which Plaintiff seeks relief, as described, below.
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`SECOND CAUSE OF ACTION
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`Against All Defendants
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`Nuisance Per Se
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`64.
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`Plaintiff incorporates by reference each and every paragraph of this Complaint as
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`though they were set forth in full herein.
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`65.
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`Allied’s deposition, leaving, release, placement, and dumping of metal waste and
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`shavings was in violation of the Alameda Mun. Code §§ 18-22.6, 24-9.3, 23-4.3 and California Health
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`and Safety Code § 117480, amongst other laws, and contrary to the purposes and legislative intent
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`for which a standard of care is set and/or the conduct necessary to protect the public and environment
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`from the type and severity of such illegal acts, omissions, and conduct engaged in by Allied.
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`Therefore, such activities and violations also constitute nuisance per se.
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`66.
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`Stone has permitted to exist and maintained the conditions at the Shoreline Parcel in
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`violation of laws Alameda Mun. Code §§ 18-22.6, 24-9.3, 23-4.3 and California Health and Safety
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`Code § 117480, amongst other laws, and contrary to the purposes and legislative intent for which a
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`standard of care is set and/or the conduct necessary to protect the public and environment from the
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`type and severity of such illegal acts, omissions, and conduct engaged in by Stone. Therefore, such
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`activities and violations also constitute nuisance per se.
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`67.
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`Defendants are strictly, jointly, and severally liable for abatement of this nuisance.
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`Plaintiff is entitled to injunctive relief restraining and enjoining Defendants and requiring each of
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`them, jointly and severally, promptly and completely to take such action as may be necessary to abate
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`the nuisance at issue.
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`68.
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`For which Plaintiff seeks relief, as described, below.
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`THIRD CAUSE OF ACTION
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`Against All Defendants
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`Public Nuisance
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 13 of 15
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`69.
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`Plaintiff incorporates by reference each and every paragraph of this Complaint as
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`though they were set forth in full herein.
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`70.
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`California Civil Code § 3479 defines “nuisance,” in relevant part as “[a]nything which
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`is injurious to health, … or is indecent or offensive to the senses, or an obstruction to the free use of
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`the property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully
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`obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, canal,
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`or basin.”
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`71.
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`California Civil Code § 3480 defines “public nuisance” as “one which affects at the
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`same time an entire community or neighborhood, or any considerable number of persons, although
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`the extent of the annoyance or damage inflicted upon individuals may be unequal.”
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`72.
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`Allied caused or contributed to the past or present handling, storage, transportation, or
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`disposal of metal waste and shavings in the environment at the Facility and Shoreline Parcel,
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`including waters of the State of California, because Allied owned or controlled the Facility adjacent
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`to the Shoreline Parcel when, and from which, the metal waste and shavings were released or
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`otherwise discharged, deposited, disposed of, or discarded. Allied failed to prevent, mitigate, or abate
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`such metal waste pollution. Allied’s acts and omissions in causing or contributing to the release of
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`solid wastes at, in, on, under, and around the site created a condition injurious to health and the
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`environment, and is indecent and offensive to the sense and health of the public and/or individuals.
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`73.
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`Stone caused or contributed to the past or present handling, storage, transportation, or
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`disposal of metal waste and shavings in the environment at the Shoreline Parcel, including waters of
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`the State of California, because Stone owns the Shoreline Parcel, and from which, the metal waste
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`and shavings and resulting contamination were released or otherwise discharged, deposited, disposed,
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`of or discarded. Stone has failed to mitigate or abate such metal waste pollution. Stone’s acts and
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`omissions in causing or contributing to the release of solid wastes at, in, on, under, and around the
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`Shoreline Parcel create a condition injurious to health and the environment, and is indecent and
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`offensive to the sense and health of the public and/or individuals.
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`74.
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`By virtue of their frequent recreation in the Oakland Estuary, San Leandro Bay, and
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`San Francisco Bay, Baykeeper’s members suffer harm that is distinct from, and more severe than, the
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`Case 4:20-cv-07123-KAW Document 1 Filed 10/13/20 Page 14 of 15
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`harm suffered by the general public. The presence of metal waste in and along the Estuary also creates
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`a visual blight that materially interferes with these recreational activities in a way that is distinct from
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`the surrounding community’s general harm from the pollution.
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`75.
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`Defendants have caused, created, maintained, contributed to, and neglected to abate a
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`“public nuisance,” as defined in California Civil Code §§ 3479 and 3480, namely the actual and
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`potential endangerment to health and the environment created by the contamination from metal waste
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`and shavings.
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`76.
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`Defendants are strictly, jointly, and severally liable for abatement of this public
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`nuisance. Plaintiff is entitled to injunctive relief restraining and enjoining Defendants and requiring
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`1 2 3 4 5 6 7 8 9
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`each of them, jointly and severally, promptly and completely to take such action as may be necessary
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`to abate the public nuisance at issue.
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