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Foster-Gardner Inc. v. National Union Fire Insurance Co.8/3/1998
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In May 1991, the RWQCB required Foster-Gardner to conduct a preliminary groundwater investigation by installing and sampling three monitoring wells at the Site. In September 1991, the RWQCB required Foster-Gardner to install four additional wells. On October 22, 1991, the RWQCB issued a Cleanup and Abatement Order requiring Foster-Gardner to clean up and abate the effect of the discharge of contaminants from the Site into the groundwater.
As a result of the Site investigations, groundwater, soil, and surface soil data indicated that the Site was a source of contamination for groundwater and surrounding surface soils, and a potential source of contamination for surface water and air. The DTSC determined that during the ownership and operation of the Site by Foster-Gardner, hazardous substances or wastes had been disposed of onto the Site ground, and "there has been a release or threatened release of hazardous substances or hazardous wastes from the Site." The DTSC further determined that actual and/or threatened release of hazardous substances or hazardous wastes at the Site presents an imminent and substantial endangerment to the public health or welfare, or to the environment.
Foster-Gardner was ordered to submit within 10 days of the effective date of the Order a written notice of its intent to comply with the Order's terms. It was ordered to report within 30 days on its compliance with the direction of the DTSC, the RWQCB and/or the RCHD with regard to interim measures, including but not limited to continued groundwater monitoring, complying with the RWQCB's Cleanup and Abatement Order and any subsequent requirements of the RWQCB made pursuant to that order, complying with the RCHD's orders to contain runoff from the Site, and conducting sampling and analysis of off-site surface soils. Within 180 days, Foster-Gardner was ordered to prepare and submit a Remedial Investigation and Feasibility Study (RI/FS) Workplan detailing all of the activities necessary to complete the remedial investigation and feasibility study of the Site and any off-site areas where there was a release or threatened release of hazardous substances from the Site. In accordance with the schedule set forth in the RI/FS Workplan, Foster-Gardner was ordered to at some future time prepare a "Remedial Investigation Report and Feasibility Study Report." Once the Feasibility Study Report was approved, Foster-Gardner was required to submit a draft Remedial Action Plan (RAP). Following approval of the final RAP, Foster-Gardner was ordered to submit a Remedial Design and Implementation Plan (RDIP). Once the RDIP was approved, Foster-Gardner "shall implement the final RAP."
The Order provided, "Nothing in this Order" precludes the DTSC or other agency "from taking any action authorized by law to protect the public health or safety or the environment and recovering the cost thereof." Foster-Gardner was liable for any oversight costs and "any costs incurred by the DTSC in responding to a release or threatened release of hazardous substances." These costs would be recovered by a civil action. Moreover, " othing in this Order shall constitute or be construed as a satisfaction or release from liability for any conditions or claims arising a result of past, current or future operations" of Foster-Gardner. Finally, the Order stated, "You may be liable for penalties of up to $25,000 for each day you refuse to comply with this Order and for punitive damages up to three times the amount of any costs incurred by the Department as a result of your failure to comply, pursuant to" sections 25359 (as enacted by Stats. 1983, ch. 1044, ยง 19, p. 3673) and 25361.
Foster-Gardner tendered defense of the DTSC Order to fo
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