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24 ELR 21068 | Environmental Law Reporter | copyright © 1994 | All rights reserved Lincoln Properties, Ltd. v. HigginsNo. CV-S-91-760 DFL GGH (E.D. Cal. August 16, 1993)The court orders past and present owners of dry cleaning stores to participate in the investigation, monitoring, and testing of hazardous substance contamination at a California shopping center. In a prior opinion, the court had held the defendants liable under the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation, and Liability Act for hazardous substance discharges at the shopping center. The court orders the defendants to hire a site project manager and prepare a workplan for environmental investigation, monitoring, and testing of perchloroethylene, trichloroethylene, 1-2 dichloroethylene, and vinyl chloride emanating from the shopping center. The court orders the defendants to conduct a remedial investigation, risk assessment, treatability study, and feasibility study, and prepare letter reports and a proposed remedial action plan, consistent with the national contingency plan and as specified in the workplan. The court directs that the plaintiff may observe, inspect, and review the defendants' investigation, monitoring, and testing and may comment on the draft workplan, draft remedial investigation report, draft risk assessment report, draft treatability study report, draft feasibility study report, and letter reports. The court orders the plaintiff to provide the defendants reasonable access to the shopping center. The court designates the California Regional Water Quality Control Board — Central Valley Region as the lead public agency in overseeing and reviewing the defendants' work. And the court orders the defendants to require the site project manager to obtain specified workers' compensation, employer's liability, comprehensive general liability, automobile liability, errors and omissions, and environmental impairment/pollution liability insurance. [The court's prior opinion is published at 23 ELR 20665.] Counsel for Plaintiff Robert C. Goodman Jr. Counsel for Defendants Levi, J.: On January 21, 1993, the Court entered an Order granting Plaintiff Lincoln Properties, Ltd.'s ("Plaintiff LPL") motion for partial summary judgment on its claim under Section 7002(a)(1)(B) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as further amended by the Hazardous and Solid Waste Amendments of 1984 ("RCRA"), 42 U.S.C. § 6972(a)(1)(B); [24 ELR 21069] under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"), 42 U.S.C. § 9607(a); and under California public nuisance abatement law. The Court ruled that Plaintiff LPL is entitled to an injunction requiring Jack Alquist, individually and doing business as Lincoln Village Cleaners, formerly doing business as Village Cleaners; Lincoln Village Cleaners, Inc.; Wilbert Moser, individually and doing business as Lincoln Village Cleaners; Monroe Hess Jr., individually and doing business as Finest Care Cleaners, formerly doing business as Lincoln Center One-Hour Martinizing; Bennie Hein, individually and doing business as Norge Cleaners, formerly doing business as Norge Cleaning Village; Bonnie Crosby, individually and doing business as Norge Cleaners, formerly doing business as Norge Cleaning Village; A. A. Mederos, individually and doing business as Norge Cleaners, formerly doing business as Norge Cleaning Village; and Estate of Dwight Alquist, Deceased (hereinafter collectively the "Dry Cleaning Defendants") to participate in the investigation, monitoring, and testing of the hazardous substance contamination at and emanating from Lincoln Center under RCRA Section 7002(a)(1)(B) and the public nuisance abatement provisions of California Code of Civil Procedure Section 731.1 The Court ruled that the precise nature and scope of the injunctive relief would be determined, and the injunction issued, at a later date. The issues concerning the nature and form of the injunction came before the Court in a hearing on July 16, 1993. Before the Court are the moving and reply briefs and declarations submitted by Plaintiff LPL and the opposition briefs and declarations submitted by the Dry Cleaning Defendants. After considering the submissions of counsel and in accordance with the Court's January 21, 1993, Memorandum Opinion and Order, the Court hereby makes the following Order. IT IS HEREBY ORDERED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 65 THAT: I. Injunction to Participate in Investigation, Monitoring, and Testing of Contamination The Dry Cleaning Defendants are enjoined to and shall, jointly and severally, participate in the investigation, monitoring, and testing of the hazardous substance contamination at and emanating from Lincoln Center (hereinafter the "Site") as required in Section IV of this Injunction. II. Site Project Manager and Site Technical Coordinator A. The Dry Cleaning Defendants shall collectively engage a qualified individual or consulting firm, with appropriate hydrogeological experience and expertise, as Site Project Manager to represent the Dry Cleaning Defendants' interests with respect to the investigation, monitoring, and testing required by this Injunction, and shall notify the Court and Plaintiff LPL of the selection of a Site Project Manager in writing within thirty (30) days of the date of entry of this Order. B. Unless contrary notification to the Court and the Dry Cleaning Defendants is made by Plaintiff LPL, Dr. Anne M. Farr of Kennedy/Jenks Consultants shall serve as Plaintiffs LPL's Site Technical Coordinator with respect to the observation, inspection, and review of the investigation, monitoring, and testing permitted under Section V of this Injunction. C. The Site Project Manager and Site Technical Coordinator so appointed shall be provided site access as necessary, pursuant to Section VI of this Injunction. A. Unless contrary notification is made to the Court, the Dry Cleaning Defendants select Robert C. Goodman, Esq., of Feldman, Waldman & Kline, and Lori Gualco, Esq., of Trainor, Robertson, Smits & Wade, to serve as the Dry Cleaning Defendants' Liaison Counsel, who shall coordinate communications among the counsel and Site Project Manager for the Dry Cleaning Defendants with respect to matters addressed in this Injunction. B. Unless contrary notification to the Court is made by Plaintiff LPL, J. Martin Robertson, Esq., of Ware & Freidemich, P.C., shall serve as Plaintiff LPL's Liaison Counsel with respect to the matters addressed in this Injunction. IV. Investigation, Monitoring, and Testing of Contamination A. Workplan. The Dry Cleaning Defendants shall prepare a Workplan for Environmental Investigation, Monitoring, and Testing of the Hazardous Substances Perchloroethylene (PCE), Trichloroethylene (TCE), 1-2 Dichloroethylene (DCE), and Vinyl Chloride at and Emanating From Lincoln Center (hereinafter "Workplan"). (Hereinafter, PCE, TCE, DCE, and vinyl chloride are referred to collectively as the "Hazardous Substances.") The Workplan shall require that a Remedial Investigation, a Risk Assessment, and a Feasibility Study be conducted; that a Treatability Study be conducted, if necessary and appropriate; and that a Proposed Remedial Action Plan be developed. The Workplan shall be developed consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (the "National Contingency Plan" or "NCP") promulgated by the U.S. Environmental Protection Agency and codified at 40 C.F.R. Part 300, in accordance with Section 105 of CERCLA, 42 U.S.C. § 9605, and any applicable requirements of the State of California Regional Water Quality Control Board — Central Valley Region (hereinafter "RWQCB") which do not conflict with the requirements of this Injunction or the NCP or other applicable federal law. 1. The Workplan shall require the following: a. A Remedial Investigation shall be conducted to fully characterize the nature and the lateral and vertical extent of the Hazardous Substances at and emanating from Lincoln Center, in the soil, the soil vapor, and the groundwater, necessary to assess the extent to which the release of these hazardous substances poses a threat to the environment or health and to support the analysis and design of potential response actions, as specified in Section 300.430(d) of the NCP. The lateral and vertical extent of the Hazardous Substances in the groundwater at the Site shall be defined to the current method detection limit of 0.5 ug/L. b. A Risk Assessment shall be conducted, using the data generated during the Remedial Investigation, to fully characterize the current and potential threats to the environment and health that may be posed by Hazardous Substances migrating to groundwater or surface water, releasing to air, leaching through soil, remaining in the soil, or bioaccumulating in the food chain, as specified in Section 300.340(d)(4) of the NCP. c. A Treatability Study shall be conducted, if necessary and appropriate, to obtain sufficient data to enable potential treatment alternatives to be fully identified and evaluated, to reduce the cost and performance uncertainties of treatment alternatives to acceptable levels to enable a proposed remedial action plan to be formulated, and to obtain sufficient data to support remedial design, as specified in Section 300.430(d)(1) of the NCP. d. A Feasibility Study shall be conducted using the data generated during the Remedial Investigation and Risk Assessment and during the Treatability Study, if a Treatability Study is conducted, to develop and analyze remedial alternatives, as specified in Section 300.430(e) of the NCP. e. A Proposed Remedial Action Plan shall be prepared, based on the Remedial Investigation, Risk Assessment, Feasibility Study, and Treatability Study, as specified in Section 300.430(f) of the NCP. f. Letter reports, containing all data generated within sixty (60) days prior to the date of such letter reports and not previously reported in draft or final reports of the Remedial Investigation, Risk Assessment, Feasibility Study, Treatability Study, or other letter reports, shall be prepared every other month, beginning on October 1, 1993. 2. The Workplan shall require preparation of an appropriate Health and Safety Plan; an appropriate Sampling and Analysis Plan [24 ELR 21070] (a "SAP"), including an appropriate Quality Assurance Project Plan (a "QAPP"); an appropriate Community Relations Plan; and an appropriate Investigation Derived Residuals ("IDR") Management Plan, consistent with the NCP. 3. The Workplan shall include an Access Plan with which the Dry Cleaning Defendants, their Site Project Manager, agents, and other consultants shall comply. The Access Plan shall describe the access to Lincoln Center which the Dry Cleaning Defendants require to perform the investigation, monitoring, and testing under Section IV of this Injunction, and comply with Section VI of this Injunction. 4. The Workplan shall be prepared as follows: a. The Dry Cleaning Defendants shall prepare a draft Workplan and submit it to Plaintiff LPL and the U.S. Environmental Protection Agency — Region IX, or its designee; the State of California Regional Water Quality Control Board — Central Valley Region (RWQCB); the State of California Environmental Protection Agency; and the County of San Joaquin, Department of Public Works (hereinafter collectively the "Public Agencies") for review within sixty (60) days of the date of entry of this Injunction. b. The Court hereby finds, orders, and decrees with respect to this Injunction that the following comment periods provide the Public Agencies and the public with a reasonable opportunity for review and comment, and that: (1) The Dry Cleaning Defendants shall provide Plaintiff LPL and the Public Agencies with fifty (50) days following the submission of the draft Workplan to submit comments to the Dry Cleaning Defendants in response to the draft Workplan. The Dry Cleaning Defendants shall promptly provide Plaintiff LPL with copies of any comments from Public Agencies on the draft Workplan. (2) At the same time as notice is provided to Plaintiff LPL and the Public Agencies, the Dry Cleaning Defendants shall issue a notice to the public (as authorized by this Court's Order in this action pursuant to Local Rule 171) stating that they have prepared the draft Workplan and that the public may submit comments to the Dry Cleaning Defendants concerning the draft Workplan. The Dry Cleaning Defendants shall provide the public with thirty (30) days following the issuance of the public notice to submit comments to the Dry Cleaning Defendants in response to the public notice. (3) After receipt of comments on the draft Workplan, the Dry Cleaning Defendants shall prepare a final Workplan, and submit it to Plaintiff LPL and the Public Agencies within sixty (60) days after the close of the comment period and issue notice to the public that they have prepared the final Workplan within sixty (60) days after the close of the comment period. B. Remedial Investigation. The Dry Cleaning Defendants shall conduct a Remedial Investigation consistent with the NCP and as specified in the Workplan described in Section IV.A.1.a of this Injunction. The Remedial Investigation shall be conducted as follows: 1. The Dry Cleaning Defendants shall conduct the Remedial Investigation, and prepare a draft report of the Remedial Investigation and submit it to Plaintiff LPL and the Public Agencies by the date specified in the Workplan. 2. The Court hereby finds, orders, and decrees with respect to this Injunction that the following comment periods provide the Public Agencies and the public with a reasonable opportunity for review and comment, and that: a. The Dry Cleaning Defendants shall provide Plaintiff LPL and the Public Agencies with fifty (50) days following the submission of the draft report of the Remedial Investigation to submit comments to the Dry Cleaning Defendants in response to the draft report of the Remedial Investigation. b. At the same time as notice is provided to Plaintiff LPL and the Public Agencies, the Dry Cleaning Defendants shall issue a notice to the public (as authorized by this Court's Order in this action pursuant to Local Rule 171) stating that they have prepared the draft report and that the public may submit comments to the Dry Cleaning Defendants concerning the draft report. The Dry Cleaning Defendants shall provide the public with thirty (30) days following the issuance of the public notice to submit comments to the Dry Cleaning Defendants in response to the public notice. 3. After receipt of comments on the draft report of the Remedial Investigation, the Dry Cleaning Defendants shall prepare a final report of the Remedial Investigation, and submit it to Plaintiff LPL and the Public Agencies within sixty (60) days after the close of the comment period and issue notice to the public that they have prepared the final report of the Remedial Investigation within sixty (60) days after the close of the comment period. C. Risk Assessment. The Dry Cleaning Defendants shall conduct a Risk Assessment consistent with the NCP and as specified in the Workplan described in Section IV.A.1.b of this Injunction. The Risk Assessment shall be conducted as follows: 1. The Dry Cleaning Defendants shall conduct the Risk Assessment, and prepare a draft report of the Risk Assessment and submit it to Plaintiff LPL and the Public Agencies for review by the date specified in the Workplan. 2. The Court hereby finds, orders, and decrees with respect to this Injunction that the following comment periods provide the Public Agencies and the public with a reasonable opportunity for review and comment, and that: a. The Dry Cleaning Defendants shall provide Plaintiff LPL and the Public Agencies with fifty (50) days following the submission of the draft report of the Risk Assessment to submit comments to the Dry Cleaning Defendants in response to the draft report of the Risk Assessment. b. At the same time as notice is provided to Plaintiff LPL and the Public Agencies, the Dry Cleaning Defendants shall issue a notice to the public (as authorized by this Court's Order in this action pursuant to Local Rule 171) stating that they have prepared the draft report, and that the public may submit comments to the Dry Cleaning Defendants concerning the draft report. The Dry Cleaning Defendants shall provide the public with thirty (30) days following the issuance of the public notice to submit comments to the Dry Cleaning Defendants in response to the public notice. 3. After receipt of comments on the draft report of the Risk Assessment, the Dry Cleaning Defendants shall prepare a final report of the Risk Assessment, and submit it to Plaintiff LPL and the Public Agencies within sixty (60) days after the close of the comment period and issue notice to the public that they have prepared the final report of the Risk Assessment within sixty (60) days after the close of the comment period. D. Treatability Study. The Dry Cleaning Defendants shall conduct a Treatability Study, if necessary and appropriate, consistent with the NCP and as specified in the Workplan described in Section IV.A.1.c of this Injunction. The Treatability Study shall be conducted, if necessary and appropriate, as follows: 1. The Dry Cleaning Defendants shall conduct the Treatability Study, and prepare a draft report of the Treatability Study and submit it to Plaintiff LPL and the Public Agencies for review by the date specified in the Workplan. 2. The Court hereby finds, orders, and decrees with respect to this Injunction that the following comment periods provide the Public Agencies with a reasonable opportunity for review and comment, and that: a. The Dry Cleaning Defendants shall provide Plaintiff LPL and the Public Agencies with fifty (50) days following the submission of the draft report of the Treatability Study to submit comments to the draft report of the Treatability Study. b. At the same time as notice is provided to Plaintiff LPL and the Public Agencies, the Dry Cleaning Defendants shall issue a notice to the public (as authorized by this Court's Order in this action pursuant to Local Rule 171) stating that they have prepared the draft report and that the public may submit comments to the Dry Cleaning Defendants concerning the draft report. The Dry Cleaning Defendants shall provide the public with sixty (60) days following the issuance of the public notice to submit comments to the Dry Cleaning Defendants in response to the public notice. 3. After receipt of comments on the draft report of the Treatability Study, the Dry Cleaning Defendants shall prepare a final report of the Treatability Study, and submit it to Plaintiff LPL and the Public Agencies within sixty (60) days after the close of the comment period and issue notice to the public that they have prepared the final report of the Treatability Study within sixty (60) days after the close of the comment period. E. Feasibility Study. The Dry Cleaning Defendants shall conduct [24 ELR 21071] a Feasibility Study consistent with the NCP and as specified in the Workplan described in Section IV.A.1.d of this Injunction. The Feasibility Study shall be conducted as follows: 1. The Dry Cleaning Defendants shall conduct the Feasibility Study, and prepare a draft report of the Feasibility Study and submit it to Plaintiff LPL and the Public Agencies for review by the date specified in the Workplan. 2. The Court hereby finds, orders, and decrees with respect to this Injunction that the following comment periods provide the Public Agencies with a reasonable opportunity for review and comment, and that: a. The Dry Cleaning Defendants shall provide Plaintiff LPL and the Public Agencies with fifty (50) days following the submission of the draft report of the Feasibility Study to submit comments to the Dry Cleaning Defendants in response to the draft report of the Feasibility Study. b. At the same time as notice is provided to Plaintiff LPL and the Public Agencies, the Dry Cleaning Defendants shall issue a notice to the public (as authorized by this Court's Order in this action pursuant to Local Rule 171) stating that they have prepared the draft report and that the public may submit comments to the Dry Cleaning Defendants concerning the draft report. The Dry Cleaning Defendants shall provide the public with thirty (30) days following the issuance of the public notice to submit comments to the Dry Cleaning Defendants in response to the public notice. 3. After receipt of comments on the draft report of the Feasibility Study, the Dry Cleaning Defendants shall prepare a final report of the Feasibility Study, and submit it to Plaintiff LPL and the Public Agencies within sixty (60) days after the close of the comment period and issue notice to the public that they have prepared the final report of the Feasibility Study within sixty (60) days after the close of the comment period. F. Letter Reports. The Dry Cleaning Defendants shall prepare letter reports of any data collected in the course of the Remedial Investigation, the Risk Assessment, the Feasibility Study, and the Treatability Study. 1. The reports shall contain any data generated in the course of the Remedial Investigation, Risk Assessment, Feasibility Study, and Treatability Study within sixty (60) days prior to the date of such letter reports and not previously reported in draft or final reports of the Remedial Investigation, Risk Assessment, Feasibility Study, Treatability Study, or other letter reports. The Dry Cleaning Defendants shall prepare reports of such data and submit such reports to Plaintiff LPL and the Public Agencies every other month, beginning on October 1, 1993. G. Proposed Remedial Action Plan. The Dry Cleaning Defendants shall prepare a Proposed Remedial Action Plan consistent with the NCP and as specified in the Workplan described in Section IV.A.1.e of this Injunction. 1. The Dry Cleaning Defendants shall prepare a Proposed Remedial Action Plan and submit it to Plaintiff LPL and the Public Agencies by the date specified in the Workplan. 2. Concurrent with the submission of the Proposed Remedial Action Plan to Plaintiff LPL and the Public Agencies, the Dry Cleaning Defendants shall file the Proposed Remedial Action Plan with the Court and place the Proposed Remedial Action Plan in the Document Depository established and maintained by Plaintiff LPL at the Stockton Public Library — Margaret Troke Branch, pursuant to the Court's April 2, 1992, Order. 3. The Dry Cleaning Defendants' preparation of a Proposed Remedial Action Plan shall neither constitute an admission of liability that they are completely or partially liable for, nor otherwise constitute an agreement by them to perform, the work outlined in the Proposed Remedial Action Plan. V. Observation, Inspection, and Review Concerning Investigation, Monitoring, and Testing A. Plaintiff LPL may observe, inspect, and review the investigation, monitoring, and testing required to be performed by the Dry Cleaning Defendants under Section IV of this Injunction. B. Plaintiff LPL may review and provide comments to the Dry Cleaning Defendants on the following: 1. The draft Workplan required to be performed by the Dry Cleaning Defendants under Section IV.A of this Injunction. 2. The draft report of the Remedial Investigation required to be performed by the Dry Cleaning Defendants under Section IV.B of this Injunction. 3. The draft report of the Risk Assessment required to be performed by the Dry Cleaning Defendants under Section IV.C of this Injunction. 4. The draft report of any Treatability Study required to be performed by the Dry Cleaning Defendants under Section IV.D of this Injunction. 5. The draft report of the Feasibility Study required to be performed by the Dry Cleaning Defendants under Section IV.E of this Injunction. 6. Any letter report required to be completed by the Dry Cleaning Defendants under Section IV.F of this Injunction. C. Plaintiff LPL may observe and inspect any field investigation conducted at the Site under Section IV of this Injunction; under appropriate conditions, observe and inspect handling and analysis of samples taken at the Site regardless of where it occurs; and review any data collected or maintained in the course of the investigation, monitoring, and testing and inspect and copy all documents collected or maintained in the course of the investigation, monitoring, and testing promptly upon request to the Dry Cleaning Defendants' Site Project Manager and Remedial Liaison Counsel, subject to reasonable limitations as to attorney work product protection, time, and location. Plaintiff LPL shall not unreasonably interfere with the Dry Cleaning Defendants' performance of the Work described in Section IV of the Injunction, except as provided in Section VI of this Injunction. A. Plaintiff LPL shall grant the Dry Cleaning Defendants and the persons who perform the investigation, monitoring, and testing for the Dry Cleaning Defendants reasonable access to Lincoln Center to perform the investigation, monitoring, and testing under Section IV of this Injunction. 1. The Dry Cleaning Defendants shall coordinate and cooperate with Plaintiff LPL so that the investigation, monitoring, and testing under Section IV of this Injunction does not unreasonably interfere with the operation of Lincoln Center or with the operation of the business of any tenant of Lincoln Center. 2. The Dry Cleaning Defendants shall not unnecessarily damage Lincoln Center while the investigation, monitoring, and testing is performed under Section IV of this Injunction, and shall timely repair, consistent with appropriate requirements for any future response action, all damage to property the Dry Cleaning Defendants or their agents, consultants, or contractors cause while performing the investigation, monitoring, and testing under Section IV of this Injunction. 3. The Dry Cleaning Defendants shall not store any wastes derived or generated in performing the work under this Injunction ("Investigation Derived Residual Waste" or "IDR") at Lincoln Center for more than forty-five (45) days (or such shorter period as required by law or the IDR Management Plan), and IDR shall be stored in a secure area. 4. The Dry Cleaning Defendants shall obtain any permits, approvals, easements, licenses, and rights of entry required to perform the investigation, monitoring, and testing under Section IV of this Injunction, and Plaintiff LPL shall cooperate reasonably with the Dry Cleaning Defendants in assisting the Dry Cleaning Defendants obtain any permits, approvals, easements, licenses, and rights of entry so required. 5. The Dry Cleaning Defendants shall give Plaintiff LPL reasonable notice of their intent to enter Lincoln Center to perform the investigation, monitoring, and testing under Section IV of this Injunction. VII. Lead Public Agency Designation The State of California Regional Water Quality Control Board — Central Valley Region ("RWQCB") is designated as the lead public agency with respect to overseeing and reviewing the work the Dry Cleaning Defendants are required to perform pursuant to this Injunction. If the RWQCB, or any other public agency, objects to such [24 ELR 21072] designation, the Dry Cleaning Defendants shall promptly notify the Court and LPL. The Dry Cleaning Defendants shall require their Site Project Manager, over and above the costs of insurance normally maintained by the Site Project Manager, to acquire and maintain the following types of insurance with terms and conditions acceptable to Plaintiff LPL, which bear the following limits of liability which name Plaintiff LPL and the Dry Cleaning Defendants as "Additional Named Interests" on all liability policies:
A. In any dispute arising under this Injunction the parties shall initially attempt to resolve the dispute by informal negotiations. If the dispute is over a technical issue, then the negotiations shall at first be between the Dry Cleaning Defendants' Site Project Manager and Plaintiff LPL's Site Technical Coordinator with authority to act on behalf of the parties; and, if unsuccessful, then, with Liaison Counsel present in addition to the Site Project Manager and Site Technical Coordinator. If the dispute is resolved informally, then the parties shall jointly move the Court for an amendment of this Injunction, if necessary, to reflect the terms of the agreement reached. The initial informal dispute resolution period shall be twenty (20) days. The parties may, by mutual written agreement, extend the time for informal dispute resolution by additional periods of ten (10) days. B. If the dispute is not resolved informally during the time period specified in Section IX.A of this Injunction, then an application for adjudication of a dispute or to compel compliance with this Injunction will be permitted to be brought before the Special Master pursuant to Section X of this Injunction, in the first instance, or before the Court, if necessary. The motion shall identify the issues in dispute, the reasons that the dispute could not be resolved after reasonable effort or why informal dispute resolution was thought to be futile, and the relief sought by the moving party. All opposition to the motion and any reply shall be filed and served in accordance with the Local Rules of Court for the United States District Court, Eastern District of California. All such motions, oppositions, and replies shall be filed with the Court and with the Special Master and served upon the other parties. X. Reference to Special Master for Adjudication of Disputes The Court hereby appoints Judge Daniel Weinstein as Special Master to oversee the expeditious and effective implementation of this Injunction and to adjudicate all disputes between the parties arising under this Injunction, subject to the conditions and limitations established herein, pursuant to Federal Rule of Civil Procedure 53. A. Upon application for adjudication of any party, or upon direction of the Court, the Special Master shall promptly consider and resolve all applications for adjudication by conducting hearings on all matters in dispute and making findings of fact, conclusions of law, and recommendations to this Court. For this purpose, the Special Master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under this Order of Reference, pursuant to Rule 53. B. When a Settling Party to an adjudicatory proceeding so requests, the Special Master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in the Federal Rules of Evidence for a court sitting without a jury. The cost of recording and/or transcribing the proceedings shall be part of the costs reimbursable to the Special Master as provided below. C. Each decision by the Special Master rendered in the course of an adjudicatory proceeding shall be in writing or stated orally on the record, and shall report the relevant findings of fact, conclusions of law, and recommendations. The Special Master's findings of fact and questions of law arising upon the request may thereafter be reviewed by the Court. D. The decisions of the Special Master rendered in the course of an adjudicatory proceeding shall be final and binding upon the parties and enforceable as orders of this Court unless any party objects to the Special Master's decision in whole or in part by applying to the Court for judicial review within fifteen (15) days after receiving the Special Master's oral or written decision. Such application for judicial review shall be in writing, served upon all parties and the Special Master, and shall set forth specifically the legal basis supporting the request for judicial review and the relief desired. When a party has filed a timely application for judicial review, the Special Master shall forthwith file transcripts and exhibits from proceedings with the Court. If, in the decision being reviewed, the Special Master makes a finding that the relief recommended in his decision is appropriate to abate a condition which may present an imminent and substantial endangerment to the environment or health, the Special Master's decision shall not be stayed and shall be binding upon the parties unless and until it is modified or rejected in whole or in part by the Court pursuant to a timely application for judicial review. In all other cases in which either party has timely requested judicial review, the effect of the Special Master's decision shall, unless otherwise ordered by the Special Master or the Court, be stayed pending resolution by the Court. E. Fees and expenses of the Special Master shall be paid by the Dry Cleaning Defendants unless it is finally determined by the Special Master or the Court that Plaintiff LPL's position in the relevant proceeding was unreasonable, in which case all such fees and expenses shall be paid by Plaintiff LPL. XI. Effect of Subsequently Enacted or Promulgated Law If any Party asserts that a subsequent enactment, amendment, or promulgation of any federal or state statute or regulation is applicable to the Work and would render performance of the Work required by this Injunction illegal or unnecessary, that Party may seek appropriate modification of any Party's obligation(s) pursuant to this Injunction. If any Party asserts that a provision of the NCP is inapplicable to the work performed under this Injunction, that Party also may seek appropriate modification of any Party's obligation(s) pursuant to this Injunction. Any modification requested pursuant to this Paragraph shall be subject to the dispute resolution provisions of Section VI of this Injunction. In the event that any Party seeks a modification of this Injunction, pursuant to this Section, the Work shall continue and the Dry Cleaning Defendants shall continue to implement this Injunction until such requirements are modified by further Order of this Court. XII. Subsequent Orders and Relief This Injunction is intended to effectuate the Court's decision of January 21, 1993, only and is not intended to dispose of all issues in this litigation. This Injunction shall in no way preclude any subsequent grant of relief, including, but not limited to, further or additional injunctive relief requiring implementation of the remedy selected, if any. NOW, THEREFORE, IT IS SO ORDERED, ADJUDGED, AND DECREED. 1. The Court ruled that Plaintiff LPL is entitled to an injunction against Jack Alquist, individually and doing business as Lincoln Village Cleaners, formerly doing business as Village Cleaners; Lincoln Village Cleaners, Inc.; Wilbert Moser, individually and doing business as Lincoln Village Cleaners; Monroe Hess Jr., individually and doing business as Finest Care Cleaners, formerly doing business as Lincoln Center One-Hour Martinizing; Bennie Hein, individually and doing business as Norge Cleaners, formerly doing business as Norge Cleaning Village; Bonnie Crosby, individually and doing business as Norge Cleaners, formerly doing business as Norge Cleaning Village; and A. A. Mederos, individually and doing business as Norge Cleaners, formerly doing business as Norge Cleaning Village, under RCRA Section 7002(a)(1)(B) and the public nuisance provisions of California Code of Civil Procedure Section 731. The Court ruled that Plaintiff LPL is entitled to an injunction against the Estate of Dwight Alquist, Deceased, under the public nuisance abatement provisions of California Code of Civil Procedure Section 731. 24 ELR 21068 | Environmental Law Reporter | copyright © 1994 | All rights reserved |