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Attorneys battle over leaking gas tanks
Monday, July 12, 2004
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With concerns that postponing the legal showdown over allegedly contaminated soil and groundwater near Lake Berryessa will only keep cleanup operations from occurring, no less than seven attorneys lined up in Judge Scott Snowden's courtroom on Thursday.

It was the latest in a series of case management conferences designed to sort out the issues and determine how to proceed in the complex case in which Supervisor-elect Harold Moskowite is being sued by his neighbors on Steele Canyon Road.
Plaintiffs Bob and Lillian Joe brought the action contending that Moskowite's gas station next door to their Capell Valley Mobile Estates had leaky underground tanks that has produced a plume of contaminants that has moved 200 yards or more through the area. They believe their ability to refinance the property which they purchased from Moskowite and the property values themselves have decreased dramatically.

The lawsuit spawned several other actions, beginning with Moskowite's claim that it is actually the parties that leased the service station from him that caused the problems. This in turn caused fingers to be pointed -- and legal briefs to be filed -- claiming proper disclosures were not made during real estate transactions involving the properties.
What the plaintiffs really want is an expedited cleanup of the property, and they want Moskowite to pay for it. The group of lawyers collectively agreed the technology exists to deal with the problem, but several believe the court doesn't need to get involved with the science of it, but simply to order that it be done.

Snowden, with tongue in cheek, said, "You could take an injunction I issue and wrap it around the handle of a shovel and go to work."
He also showed a knowledge of the concepts involved noting that ozone injections and enzymes are often used to help neutralize the contaminants. The culprits are by-products of petroleum products, mostly MTBEs, an additive commonly found in gasoline when the station was operating.

Moskowite is scheduled to file a report on cleanup operations and monitoring next week with the Regional Water Quality Control Board, although fears were raised that entity has no enforcement power.

Snowden noted that environmental cleanup cases are not uncommon, but this one, "sounds massive."

There is a state fund that could help pay the cleanup costs, but the Joes and others don't want to wait for the bureaucracy to catch up with the effort. They'd rather see Moskowite go for reimbursement after the work is done.

The matter has been set for another conference on August 12 at 8:30 a.m. Snowden predicts it will be an uneventful morning unless he sets the matter for trial. Still to be determined is the timing of the various legal events that must take place and whether to separate the issues of fault and equity from monetary matters.

Matt Bishop, an attorney representing cross defendants and former lessees, said, "Our interest is in resolving this. It's not rocket science."

Another lawyer, Cameron Kirk, represents Napa Valley Petroleum which supplied fuel to the station and was involved in some of the operational aspects. He said Moskowite has been unwilling to clean up the contamination.

"The real fight is who is responsible for the cleanup," he said.

Yet another lawyer, Martin Seeger, summed up, "Just do it."
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