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SWAGELOK COMPANY’S ANSWER TO SECOND AMENDED COMPLAINT, 

COUNTERCLAIMS, AND CROSSCLAIMS 

3:17-CV-00308-WHO

JOHN F. CERMAK, JR., SBN 146799 

SONJA A. INGLIN, SBN 090790

RYAN FISCHBACH, SBN 204406 

BAKER & HOSTETLER LLP 

11601 Wilshire Boulevard, Suite 1400 

Los Angeles, CA 90025-0509 

Telephone: 310.820.8800 

Facsimile: 310.820.8859 

Email: jcermak@bakerlaw.com

singlin@bakerlaw.com

rfischbach@bakerlaw.com

JOHN D. PARKER, Pro Hac Vice application pending 

BAKER & HOSTETLER LLP 

127 Public Square, Suite 2000 

Cleveland, OH 44114

Telephone: 216.861.7610 

Facsimile: 216.696.0740 

Email: jparker@bakerlaw.com 

Attorneys for Defendant, Counterclaimant and 

Crossclaimant SWAGELOK COMPANY

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 

THE SUCCESSOR AGENCY TO THE 

FORMER EMERYVILLE 

REDEVELOPMENT AGENCY AND THE 

CITY OF EMERYVILLE, 

Plaintiff, 

v. 

SWAGELOK COMPANY, an Ohio 

corporation; WHITNEY RESEARCH TOOL 

CO., a dissolved California corporation; 

HANSON BUILDING MATERIALS 

LIMITED, a British Corporation; and 

CATHERINE LENNON LOZICK, an 

individual residing in Ohio, 

Defendants. 

Case No.: 3:17-cv-00308-WHO 

DEFENDANT SWAGELOK 

COMPANY’S ANSWER TO SECOND 

AMENDED COMPLAINT UNDER 

CERCLA, 42 U.S.C. SECTION 9601 ET 

SEQ., RCRA, 42 U.S.C. SECTION 6901 

ET SEQ., AND STATE LAW TO 

RECOVER ENVIRONMENTAL 

CLEANUP COSTS AND RELATED 

RELIEF; AND SWAGELOK 

COMPANY’S AMENDED 

COUNTERCLAIMS AND 

CROSSCLAIMS

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SWAGELOK COMPANY’S ANSWER TO SECOND AMENDED 

 COMPLAINT, COUNTERCLAIMS, AND CROSSCLAIMS 

3:17-CV-00308-WHO

SWAGELOK COMPANY, 

 Counterclaimant, 

 v. 

THE SUCCESSOR AGENCY TO THE 

FORMER EMERYVILLE 

REDEVELOPMENT AGENCY AND THE 

CITY OF EMERYVILLE, 

Counterdefendants, 

SWAGELOK COMPANY, 

 Crossclaimant, 

 v. 

HANSON BUILDING MATERIALS 

LIMITED, a British corporation, 

 Crossdefendant 

Defendant Swagelok Company (“Swagelok”), by and through its attorneys, hereby 

responds to the Second Amended Complaint (“Amended Complaint”) of Plaintiffs the Successor 

Agency to the Former Emeryville Redevelopment Agency (“Successor Agency”) and the City of 

Emeryville (“City”) (collectively, “Plaintiffs”), as follows. 

ANSWER TO AMENDED COMPLAINT

Defendant Swagelok answers the Amended Complaint, as set forth below. Except as 

specifically admitted herein, Swagelok denies each and every allegation of the Amended 

Complaint. 

Nature Of This Action 

1. Paragraph 1 of the Amended Complaint does not assert any allegations of fact to 

which a response is required. To the extent a response is required, Swagelok denies the 

allegations of Paragraph 1. 

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SWAGELOK COMPANY’S ANSWER TO SECOND AMENDED 

 COMPLAINT, COUNTERCLAIMS, AND CROSSCLAIMS 

3:17-CV-00308-WHO

2. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 2 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. Paragraph 2 also contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 2 not otherwise denied, 

Swagelok denies them. 

3. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 3 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

4. Swagelok denies the allegations of Paragraph 4 of the Amended Complaint. 

5. Answering Paragraph 5, Swagelok admits that Marchant Calculating Machine 

Company (“Marchant”) occupied the real property located at 5679 Horton Street, Emeryville, 

California (the “Horton Street Property”) prior to Whitney Research Tool Company (“Whitney”), 

and used and released chlorinated solvents and other chemicals. Except as so admitted, Swagelok 

denies the allegations of Paragraph 5 of the Amended Complaint.

6. Answering Paragraph 6, Swagelok is without knowledge or information sufficient 

to form a belief as to the truth of the allegations regarding whether contamination has rendered 

buildings unsafe for use by City employees, and on that basis, denies these allegations. The 

remainder of Paragraph 6 contains purported statements and/or conclusions of law as to which no 

response is required. To the extent a response to those allegations is required and as to any other 

allegations of Paragraph 6 not otherwise denied, Swagelok denies them. 

7. Swagelok denies the allegations of Paragraph 7 of the Amended Complaint. 

8. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations contained in the first three sentences of Paragraph 8 of the Amended 

Complaint, and on that basis, denies these allegations. Swagelok admits that it received certain 

correspondence from one or more of the Plaintiffs with respect to the Horton Street Property, the 

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SWAGELOK COMPANY’S ANSWER TO SECOND AMENDED 

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3:17-CV-00308-WHO

content of which speaks for itself. Except as so admitted, Swagelok denies the remaining 

allegations in Paragraph 8. 

Subject Matter Jurisdiction 

9. Paragraph 9 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 9 not otherwise denied, 

Swagelok denies them. 

Venue

10. Paragraph 10 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 10 not otherwise denied, 

Swagelok denies them.

The Parties 

11. Paragraph 11 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 11 not otherwise denied, 

Swagelok denies them. 

12. Answering Paragraph 12, Swagelok admits that City is located in Alameda 

County, California and that City at certain times asserted that it held title to the Horton Street 

Property. Except as so admitted, Swagelok denies the allegations of Paragraph 12. 

13. Answering Paragraph 13, Swagelok admits that Swagelok Company is an Ohio 

corporation with its principal place of business in Solon, Ohio. Except as so admitted, Swagelok 

denies the allegations of Paragraph 13 of the Amended Complaint. 

14. Swagelok admits the allegations of Paragraph 14 of the Amended Complaint. 

15. Answering Paragraph 15, Swagelok is informed and believes that Hanson Building 

Materials Limited (“Hanson”) is a British Corporation with its principal place of business in 

either Maidenhead, Berkshire, United Kingdom or London, United Kingdom. Swagelok is 

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SWAGELOK COMPANY’S ANSWER TO SECOND AMENDED 

 COMPLAINT, COUNTERCLAIMS, AND CROSSCLAIMS 

3:17-CV-00308-WHO

without knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations of Paragraph 15 of the Amended Complaint, and on that basis, denies each and every 

such allegation. 

16. Answering Paragraph 16, Swagelok admits that defendant Catherine Lennon 

Lozick is an individual. The remaining allegations of Paragraph 16 of the Amended Complaint 

contain purported statements and/or conclusions of law as to which no response is required. To 

the extent a response to those allegations is required and as to any other allegations of 

Paragraph 16 not otherwise denied, Swagelok denies them. 

The Property and the Contamination 

17. Answering Paragraph 17, Swagelok admits that the Horton Street Property is 

located in Emeryville, Alameda County, California and is commonly referred to as being located 

at 5679 Horton Street. Swagelok further admits that a map generally depicting the Horton Street 

Property and its location is attached to the Amended Complaint as Exhibit A. Except as so 

admitted, Swagelok denies the allegations of Paragraph 17 of the Amended Complaint. 

18. Answering Paragraph 18, Swagelok admits that certain chemicals identified in 

Paragraph 18 of the Amended Complaint are “hazardous substances” as that term is used in the 

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and 

certain other statutes under which Plaintiffs have sued. Swagelok admits that the Successor 

Agency entered into a voluntary cleanup agreement (“VCA”) with the California Department of 

Toxic Substances Control (“DTSC”) with respect to the Horton Street Property and that reports 

submitted on behalf of Successor Agency to DTSC identify chemicals that have been detected 

during sampling conducted as part of its investigation of the Horton Street Property. Except as so 

admitted, Swagelok denies the allegations of Paragraph 18. 

19. Answering Paragraph 19, Swagelok admits that certain reports and documents 

related to the investigation of the Horton Street Property prepared on behalf of Successor Agency 

pursuant to the VCA were submitted to and approved by DTSC. The remaining allegations of 

Paragraph 19 contain purported statements and/or conclusions of law as to which no response is 

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required. To the extent a response to those allegations is required and as to any other allegations 

of Paragraph 19 not otherwise denied, Swagelok denies them. 

20. Swagelok denies the allegations of Paragraph 20 of the Amended Complaint. 

Hanson’s Connection to the Contamination 

21. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 21 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

22. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 22 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

23. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 23 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

24. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 24 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

25. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 25 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

26. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 26 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

27. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 27 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

28. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 28 of the Amended Complaint, and on that basis, denies each 

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and every allegation contained therein. Paragraph 28 also contains allegations that are purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 28 not 

otherwise denied, Swagelok denies them. 

29. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 29 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

30. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 30 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. Paragraph 30 also contains allegations that are purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 30 not 

otherwise denied, Swagelok denies them. 

31. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 31 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

32. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 32 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

33. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 33 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

34. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 34 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

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35. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 35 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

36. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 36 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

37. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 37 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. Paragraph 37 also contains allegations that are purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 37 not 

otherwise denied, Swagelok denies them. 

38. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 38 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

39. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 39 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

40. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 40 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

41. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 41 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

42. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 42 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

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43. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 43 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

44. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 44 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

45. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 45 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

46. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 46 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

47. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 47 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

48. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 48 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

49. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 49 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

50. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 50 of the Amended Complaint, and on that basis, denies each 

and every allegation contained therein. 

51. Paragraph 51 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

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allegations is required and as to any other allegations of Paragraph 51 not otherwise denied, 

Swagelok denies them. 

Swagelok and Lozick 

52. Answering Paragraph 52, Swagelok admits that Whitney utilized certain chemicals 

at the Horton Street Property. Except as so admitted, Swagelok denies the allegations Paragraph 

52 of the Amended Complaint. 

53. Answering Paragraph 53, Swagelok admits that Whitney was incorporated in 1959 

in California as Whitey Research Tool Co. and later changed its name to Whitney Research Tool 

Co. and that Whitney occupied the Horton Street Property beginning in or after 1963 and until 

approximately May 1999. Except as so admitted, Swagelok denies the allegations of 

Paragraph 53 of the Amended Complaint. 

54. Answering Paragraph 54 of the Amended Complaint, Swagelok admits the 

following: (a) Fred A. Lennon was at certain times, a shareholder in Swagelok; (b) Edward A. 

Lozick was at certain times the son-in-law of Fred A. Lennon; (c) Edward A. Lozick was, at 

certain times, the president and director of Whitney; and (d) Edward A. Lozick was, at certain 

times, a member of Swagelok’s board of directors. Except as so admitted, Swagelok denies the 

allegations of Paragraph 54 of the Amended Complaint. 

55. Swagelok denies the allegations of Paragraph 55 of the Amended Complaint. 

56. Answering Paragraph 56, Swagelok admits that Calbit Co. held title to the Horton 

Street Property between approximately 1963 and 1988. Swagelok also admits that title to the 

Horton Street Property was held in the name of a trust known as the “Catherine Lennon Lozick 

Trust #3” from approximately 1988 to August 1999, and that Whitney occupied the Horton Street 

Property for some or a portion of this time. Except as so admitted, Swagelok denies the 

allegations of Paragraph 56 of the Amended Complaint. 

57. Swagelok denies the allegations of Paragraph 57 of the Amended Complaint. 

58. Swagelok denies the allegations of Paragraph 58 of the Amended Complaint. 

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59. Answering Paragraph 59, Swagelok admits that: (a) in approximately December 

1988, Calbit Co. transferred title to the Horton Street Property by grant deed to the trust known as 

the Catherine Lennon Lozick Trust # 3; (b) title to the Horton Street Property was conveyed to the 

Emeryville Redevelopment Agency, which is the predecessor to the Successor Agency, on or 

about May 17, 1999; (c) Edward A. Lozick was the successor trustee of the Catherine Lennon 

Lozick Trust #3 at the time of this transfer; (d) Edward A. Lozick, was at certain times, the 

husband of Catherine Lennon Lozick; and (e) Edward A. Lozick was, at certain times, the 

president and director of Whitney. Except as so admitted, Swagelok denies the allegations of 

Paragraph 59 of the Amended Complaint. 

60. The first and second sentences of Paragraph 60 contain purported statements 

and/or conclusions of law as to which no response is required. To the extent a response to those 

allegations is required, Swagelok denies them. Swagelok is without knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations of Paragraph 60, and on that 

basis, denies them. 

FIRST CLAIM FOR RELIEF 

(Claim Under CERCLA Section 107(a), 42 U.S.C. § 9607(a)) 

61. Swagelok incorporates its responses to the preceding paragraphs 1 through 60 as if 

set forth herein. 

62. Paragraph 62 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response is required, 

Swagelok admits that Plaintiffs have correctly quoted certain language from CERCLA § 107(a). 

Except as so admitted, Swagelok denies the allegations of Paragraph 62. 

63. Paragraph 63 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 63 not otherwise denied, 

Swagelok denies them. 

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64. Paragraph 64 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 64 not otherwise denied, 

Swagelok denies them. 

65. Swagelok admits that the Horton Street Property is a “facility” within the meaning 

of CERCLA. Except as so admitted, Swagelok denies the allegations of Paragraph 65. 

66. Swagelok denies the allegations of Paragraph 66 of the Amended Complaint to the 

extent they pertain to Swagelok. The remaining allegations of Paragraph 66 contain purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 66 not 

otherwise denied, Swagelok denies them. 

67. Swagelok denies the allegations of Paragraph 67 of the Amended Complaint to the 

extent they pertain to Swagelok. The remaining allegations of Paragraph 67 contain purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 67 not 

otherwise denied, Swagelok denies them. 

68. Paragraph 68 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 68 not otherwise denied, 

Swagelok denies them. 

69. Paragraph 69 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 69 not otherwise denied, 

Swagelok denies them. 

70. Paragraph 70 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

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allegations is required and as to any other allegations of Paragraph 70 not otherwise denied, 

Swagelok denies them. 

71. Paragraph 71 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 71 not otherwise denied, 

Swagelok denies them. 

72. Swagelok specifically denies that Plaintiffs are entitled to the relief requested in 

Paragraph 72 and denies the other allegations of Paragraph 72. 

SECOND CLAIM FOR RELIEF 

(Claim for CERCLA Declaratory Relief) 

73. Swagelok incorporates its responses to the preceding paragraphs 1 through 72 as if 

set forth herein. 

74. Swagelok denies the allegations of Paragraph 74 to the extent they pertain to 

Swagelok. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations of Paragraph 74, and on that basis, denies them. 

75. Swagelok denies the allegations of Paragraph 75 of the Amended Complaint. 

THIRD CLAIM FOR RELIEF 

(Claim Under RCRA § 7002(a)) 

76. Swagelok incorporates its responses to the preceding paragraphs 1 through 75 as if 

set forth herein. 

77. Paragraph 77 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response is required, 

Swagelok admits that Plaintiffs have correctly quoted certain language from RCRA § 7002(a). 

Except as so admitted, Swagelok denies the allegations of Paragraph 77. 

78. Paragraph 78 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

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allegations is required and as to any other allegations of Paragraph 78 not otherwise denied, 

Swagelok denies them. 

79. Paragraph 79 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 79 not otherwise denied, 

Swagelok denies them. 

80. Swagelok denies the allegations of Paragraph 80 of the Amended Complaint to the 

extent they pertain to Swagelok. The remaining allegations of Paragraph 80 contain purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 80 not 

otherwise denied, Swagelok denies them. 

81. Paragraph 81 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 81 not otherwise denied, 

Swagelok denies them. 

82. Answering Paragraph 82, Swagelok admits that sometime after June 30, 2015, it 

received certain correspondence from the attorneys for Successor Agency concerning the Horton 

Street Property. Swagelok denies that such correspondence complied with notice requirements in 

§ 7002(b)(2)(A), 42 U.S.C. § 6972(b)(2)(A), or 40 C.F.R. Part 254. Swagelok is without 

knowledge or information sufficient to form a belief as to whether any similar correspondence 

was provided to other persons. To the extent not so admitted or denied, Swagelok denies any 

remaining allegations of Paragraph 82. 

83. Paragraph 83 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response is required, 

Swagelok admits that Plaintiffs have correctly quoted certain language from RCRA § 7002(a)(2), 

42 U.S.C. § 6972(a)(2). Except as so admitted, Swagelok denies the allegations of Paragraph 83. 

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84. Paragraph 84 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 84 not otherwise denied, 

Swagelok denies them. 

FOURTH CLAIM FOR RELIEF 

(Claim by Successor Agency Under Polanco Act) 

85. Swagelok incorporates its responses to the preceding paragraphs 1 through 75 as if 

set forth herein. 

86. Paragraph 86 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 86 not otherwise denied, 

Swagelok denies them. 

87. Paragraph 87 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 87 not otherwise denied, 

Swagelok denies them. 

88. Paragraph 88 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response is required, 

Swagelok admits that Successor Agency has correctly quoted certain language from Sections 

33459.4(a) and (c) of the California Health and Safety Code. Except as so admitted, Swagelok 

denies the allegations of Paragraph 88. 

89. Paragraph 89 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 89 not otherwise denied, 

Swagelok denies them. 

90. Paragraph 90 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

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allegations is required and as to any other allegations of Paragraph 90 not otherwise denied, 

Swagelok denies them. 

91. Swagelok denies the allegations of Paragraph 91 of the Amended Complaint to the 

extent they pertain to Swagelok. The remaining allegations of Paragraph 91 contain purported 

statements and/or conclusions of law as to which no response is required. To the extent a 

response is required, Swagelok denies those and any remaining allegations of Paragraph 91. 

92. Swagelok denies the allegations of Paragraph 92 of the Amended Complaint to the 

extent they pertain to Swagelok. The remaining allegations of Paragraph 92 contain purported 

statements and/or conclusions of law as to which no response is required. To the extent a response 

is required, Swagelok denies those and any remaining allegations of Paragraph 92. 

93. Swagelok denies that Successor Agency is entitled to the relief requested in 

Paragraph 93 and each of the other allegations of Paragraph 93. 

FIFTH CLAIM FOR RELIEF 

(Claim By City Under Gatto Act) 

94. Swagelok incorporates its responses to the preceding paragraphs 1 through 75 as if 

set forth herein. 

95. Paragraph 95 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 95 not otherwise denied, 

Swagelok denies them. 

96. Swagelok admits that a resolution concerning the area known as the Horton 

District was considered by the Emeryville City Council on June 16, 2015. Except as so admitted, 

Swagelok denies the allegations in Paragraph 96 of the Amended Complaint. 

97. Paragraph 97 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response is required, 

Swagelok admits that City has correctly quoted certain language from Sections 25403.5(a) and (c) 

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of the California Health and Safety Code. Except as so admitted, Swagelok denies the allegations 

of Paragraph 97. 

98. Paragraph 98 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 98 not otherwise denied, 

Swagelok denies them. 

99. Paragraph 99 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 99 not otherwise denied, 

Swagelok denies them. 

100. Swagelok denies the allegations of Paragraph 100 of the Amended Complaint to 

the extent they pertain to Swagelok. The remaining allegations of Paragraph 100 purport to assert 

statements and/or conclusions of law as to which no response is required. To the extent a 

response to those allegations is required and as to any other allegations of Paragraph 100 not 

otherwise denied, Swagelok denies them. 

101. Paragraph 101 of the Amended Complaint contains purported statements and/or 

conclusions of law as to which no response is required. To the extent a response to those 

allegations is required and as to any other allegations of Paragraph 101 not otherwise denied, 

Swagelok denies them. 

102. Swagelok denies that City is entitled to the relief requested in Paragraph 102 and 

each of the other allegations of Paragraph 102. 

SIXTH CLAIM FOR RELIEF 

(Claim for Continuing Public Nuisance) 

103. Swagelok incorporates its responses to the preceding paragraphs 1 through 75 and 

94 through 102 as if set forth herein. 

104. Swagelok denies the allegations of Paragraph 104 of the Amended Complaint. 

105. Swagelok denies the allegations of Paragraph 105 of the Amended Complaint. 

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106. Swagelok denies the allegations of Paragraph 106 of the Amended Complaint. 

107. Swagelok denies the allegations of Paragraph 107 of the Amended Complaint. 

108. Swagelok denies the allegations of Paragraph 108 of the Amended Complaint. 

109. Swagelok denies the allegations of Paragraph 109 of the Amended Complaint. 

110. Swagelok denies that City is entitled to the relief requested in Paragraph 110 and 

otherwise denies the allegations of Paragraph 110. 

SEVENTH CLAIM FOR RELIEF 

(Claim for Continuing Private Nuisance) 

111. Swagelok incorporates its responses to the preceding paragraphs 1 through 75 and 

85 through 110 as if set forth herein. 

112. Swagelok denies the allegations of Paragraph 112 of the Amended Complaint. 

113. Swagelok denies the allegations of Paragraph 113 of the Amended Complaint. 

114. Swagelok denies the allegations of Paragraph 114 of the Amended Complaint. 

115. Swagelok denies the allegations of Paragraph 115 of the Amended Complaint. 

116. Swagelok denies the allegations of Paragraph 116 of the Amended Complaint. 

117. Swagelok denies the allegations of Paragraph 117 of the Amended Complaint. 

118. Swagelok denies that Plaintiffs are entitled to the relief requested in Paragraph 118 

and otherwise denies the allegations of Paragraph 18. 

EIGHTH CLAIM FOR RELIEF 

(Claim for Continuing Trespass) 

119. Swagelok incorporates its responses to the preceding paragraphs 1 through 75 and 

85 through 118 as if set forth herein. 

120. Swagelok denies the allegations of Paragraph 120 of the Amended Complaint. 

121. Swagelok denies the allegations of Paragraph 121 of the Amended Complaint. 

122. Swagelok denies the allegations of Paragraph 122 of the Amended Complaint. 

123. Swagelok denies that Plaintiffs are entitled to the relief requested in Paragraph 123 

and otherwise denies the allegations of Paragraph 123. 

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NINTH CLAIM FOR RELIEF 

(Claim for Equitable Indemnity) 

124. Swagelok incorporates its responses to the preceding paragraphs 1 through 123 as 

if set forth herein. 

125. Swagelok denies the allegations of Paragraph 125 of the Amended Complaint. 

126. Swagelok denies the allegations of Paragraph 126 of the Amended Complaint. 

127. Swagelok denies the allegations of Paragraph 127 of the Amended Complaint. 

128. Swagelok denies that Plaintiffs are entitled to the relief requested in Paragraph 128 

and the other allegations of Paragraph 128. 

TENTH CLAIM FOR RELIEF 

(Claim for Declaratory Relief) 

129. Swagelok incorporates its responses to the preceding paragraphs 1 through 128 as 

if set forth herein. 

130. Swagelok denies the allegations of Paragraph 130 to the extent they pertain to 

Swagelok. Swagelok is without knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations of Paragraph 130, and on that basis, denies them. 

131. Swagelok denies the allegations of Paragraph 131 of the Amended Complaint. 

132. Swagelok denies that Plaintiffs are entitled to the relief requested in Paragraph 132 

and the other allegations of Paragraph 132. 

PRAYER FOR RELIEF 

Swagelok admits that Plaintiffs seek the relief stated, but denies that Plaintiffs are entitled 

to any such relief. 

AFFIRMATIVE DEFENSES

Swagelok asserts the following additional defenses to the Amended Complaint: 

First Affirmative Defense 

(Failure to State a Claim as to Each Claim for Relief) 

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133. Plaintiffs have failed to allege facts sufficient to constitute a claim for relief as to 

Swagelok. 

Second Affirmative Defense 

(No Basis for Successor Liability as to Each Claim for Relief) 

134. Swagelok has been sued as the alleged successor to and/or alter ego of Whitney. 

Swagelok denies that its actions or the facts alleged by Plaintiffs provide a basis for successor 

liability or a finding that Swagelok was the alter ego of Whitney. 

Third Affirmative Defense

(Divisible Harm as to Plaintiffs’ First, Second, Fourth, and Fifth Claims For Relief) 

135. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that Whitney is responsible for any release of hazardous substances 

during the time it occupied the Horton Street Property. To the extent that Whitney is determined 

to be responsible for any such release, any harm resulting from such releases is distinct, divisible 

and capable of reasonable apportionment and Plaintiffs cannot recover from Swagelok other than 

with respect to such divisible harm. 

Fourth Affirmative Defense 

(Actions by Plaintiffs as to Each Claim For Relief) 

136. As part of the investigation of the Horton Street Property conducted by or on 

behalf of Plaintiffs, monitoring wells were installed in such a manner as to allow chemicals 

present in the subsurface to migrate (and to continue to migrate) downward. This migration of 

chemicals as a result of the installation of the monitoring wells will, on information and belief, 

enlarge the scope and cost of any remediation required. 

137. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), its liability does not extend to any increase in the scope and costs of any 

remediation required on account of the actions of Plaintiff(s) and Plaintiff(s)’ agents in 

connection with the Horton Street Property, including without limitation, those alleged in the 

preceding paragraphs. 

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Fifth Affirmative Defense 

(Petroleum Exclusion as to Plaintiffs’ First and Second Claims for Relief) 

138. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that Whitney is responsible for any release of hazardous substances 

during the time it occupied the Horton Street Property. To the extent that Whitney is determined 

to be responsible for any such release, that responsibility does not extend to Swagelok and 

Swagelok cannot be held to be liable for any costs with respect to releases of petroleum or 

petroleum products. 

Sixth Affirmative Defense 

(Third-Party Defense as to Plaintiffs’ First, Second, Fourth, and Fifth Claims for Relief) 

139. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that Whitney is responsible for any release of hazardous substances 

during the time it occupied the Horton Street Property. To the extent that Whitney is determined 

to be responsible for any such release, that responsibility does not extend to Swagelok and 

Swagelok cannot be held to be liable for costs associated with releases resulting from the acts 

and/or omissions of third parties. 

Seventh Affirmative Defense 

(Response Costs as to Plaintiffs’ First and Second Claims for Relief) 

140. Any costs that Plaintiffs seek are not recoverable to the extent they do not 

constitute “costs of response” within the meaning of 42 U.S.C. §9601(25), or to the extent they 

were not necessary and/or were not incurred consistent with the National Contingency Plan set 

forth at 40 C.F.R. Part 300.1 et seq.

Eighth Affirmative Defense 

(De Minimis Releases as to Plaintiffs’ First, Second, Fourth, and Fifth Claims for Relief) 

141. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that Whitney is responsible for any release of hazardous substances 

during the time it occupied the Horton Street Property. To the extent that Whitney is determined 

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to be responsible for any such release, the volume and toxicity of any release of hazardous 

substances associated with Whitney were de minimis, both in absolute terms and relative to the 

contribution of other parties, and any such contribution is therefore insufficient as a matter of law 

to give rise to liability on the part of Swagelok. 

Ninth Affirmative Defense 

(Act of God as to Plaintiffs’ First, Second, Fourth, and Fifth Claims for Relief) 

142. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that Whitney is responsible for any release of hazardous substances 

during the time it occupied the Horton Street Property to the extent such releases were the result 

of Acts of God. 

Tenth Affirmative Defense 

(Passive Migration as to Plaintiffs’ First, Second, Fourth, and Fifth Claims for Relief) 

143. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that Whitney is responsible for any “release” of hazardous substances 

during the time it occupied the Horton Street Property that is the result of passive migration. 

Eleventh Affirmative Defense 

(Costs Incurred as to Plaintiffs’ Fourth and Fifth Claims for Relief) 

144. Any costs that Plaintiffs seek are not recoverable to the extent that such costs are 

barred or are otherwise not recoverable within the meaning of California Health and Safety Code 

§§ 25403.5 and 33459.4. 

Twelfth Affirmative Defense 

(Failure to Give Notice Pursuant to RCRA § 7002(b)(2)(A) as to Plaintiffs’ Third 

Claim for Relief) 

145. Prior to filing its Amended Complaint, Plaintiffs did not provide pre-filing notice 

to regulatory agencies, the State of California, and/or Swagelok that is required by RCRA 

§ 7002(b)(2)(A), 42 U.S.C. § 6972(b)(2)(A). Plaintiffs therefore have not satisfied a condition 

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precedent to its Third Claim for Relief and the Court lacks jurisdiction over such Claim for 

Relief. 

Thirteenth Affirmative Defense 

(No Imminent or Substantial Endangerment as to Plaintiffs’ Third Claim for Relief) 

146. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that it has any liability to Plaintiffs on their Third Claim for Relief to 

the extent that Plaintiffs cannot demonstrate an imminent and substantial endangerment to health 

or the environment associated with Whitney’s activities at the Horton Street Property. 

Fourteenth Affirmative Defense 

(Existing State Action as to Plaintiffs’ Third Claim for Relief) 

147. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), it denies that it has any liability to Plaintiffs on their Third Claim for Relief to 

the extent any alleged imminent and substantial endangerment to health or the environment 

associated with Whitney’s activities at the Horton Street Property is the subject of investigative or 

enforcement actions within the meaning of RCRA § 7002(b)(2)(C), 42 U.S.C. § 6972(b)(2)(C). 

Fifteenth Affirmative Defense 

(Failure to Give Notice as to Plaintiffs’ Fourth Claim for Relief) 

148. Plaintiff Successor Agency is barred from asserting its Fourth Claim for Relief to 

the extent it has failed to give the required notice, as required by California Health and Safety 

Code § 33459.1(b)(2). 

Sixteenth Affirmative Defense 

(Failure to Give Notice as to Plaintiffs’ Fifth Claim for Relief) 

149. Plaintiff City is barred from asserting its Fifth Claim for Relief to the extent it has 

failed to give the required notice, as required by California Health and Safety Code 

§ 25403.1(b)(2). 

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Seventeenth Affirmative Defense 

(Statutory Defenses as to Plaintiffs’ First to Fifth Claims for Relief) 

150. In addition to any defenses specifically alleged in this Answer, Swagelok asserts 

and relies upon all defenses available under CERCLA, RCRA the Polanco Act and the Gatto Act. 

Eighteenth Affirmative Defense 

(Lack of Standing to Sue as to Each Claim for Relief) 

151. Each Plaintiff is each barred from any recovery as to each Claim for Relief as to 

which it lacks standing to sue. 

Nineteenth Affirmative Defense 

(Unclean Hands as to Each Claim for Relief) 

152. Plaintiffs are each barred from asserting its claims for relief against Swagelok 

based on the equitable doctrine of unclean hands. 

Twentieth Affirmative Defense 

(Express and Implied Consent as to Each Claim for Relief) 

153. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), Plaintiffs are each barred from seeking relief for any costs or damages that 

may have resulted from any acts or omissions alleged in the Amended Complaint because 

Plaintiffs or a predecessor in interest impliedly consented to, and/or had knowledge of all such 

activities or conditions.

Twenty-First Affirmative Defense 

(Failure to Mitigate Damages as to Plaintiffs’ First, Second and Fourth to Tenth Claims for 

Relief) 

154. Plaintiffs have each failed to mitigate, reduce or otherwise avoid its alleged 

response costs and any other costs or damages that it seeks to recover. 

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Twenty-Second Affirmative Defense 

(Proximate Cause as to Plaintiffs’ First, Second and Fourth to Tenth Claims for Relief) 

155. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), Whitney’s acts or omissions, if any, were not the actual or proximate cause of 

any response costs, damages, or losses and costs for which each Plaintiff seeks to recover. 

Twenty-Third Affirmative Defense 

(Cause in Fact as to Plaintiffs’ First, Second and Fourth to Tenth Claims for Relief) 

156. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), Whitney’s acts or omissions, if any, were not the cause in fact of any response 

costs, damages, or losses and costs for which each Plaintiff seeks to recover. 

Twenty-Fourth Affirmative Defense 

(Intervening and/or Superseding Cause as to Plaintiffs’ First, Second and Fourth to Tenth Claims 

for Relief) 

157. Plaintiffs’ alleged response costs, damages, or losses, if any, were caused by 

independent, intervening and/or superseding acts or omissions (or events attributable to 

independent, intervening and/or superseding acts or omissions) of third parties over whom 

Swagelok had no control. 

158. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

Swagelok expressly denies) and Whitney is proven to have acted negligently or wrongfully 

(which Swagelok also expressly denies), those other acts or omissions nonetheless constitute an 

intervening or superseding cause of any such response costs, damages or losses alleged in the 

Amended Complaint. 

Twenty-Fifth Affirmative Defense 

(Comparative Fault as to Plaintiffs’ First, Second and Fourth to Tenth Claims for Relief) 

159. Plaintiffs’ claims are barred to the extent Plaintiffs’ actions or inactions caused or 

contributed to the alleged injuries, response costs, damages, losses and costs allegedly suffered by 

Plaintiffs. 

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Twenty-Sixth Affirmative Defense 

(Offsets as to Plaintiffs’ First, Second and Fourth to Tenth Claims for Relief) 

160. If Swagelok is liable as the successor to and/or alter ego of Whitney (which 

liability it denies), Plaintiffs’ recovery, if any, against it must be reduced or offset by the amounts 

of reimbursements, payments, credits or discounts, or other consideration Plaintiffs received from 

others, including collateral sources. 

Twenty-Seventh Affirmative Defense 

(Contributory Negligence as to Each Claim for Relief) 

161. Plaintiffs’ claims are barred or limited by its own negligence and misconduct. 

Twenty-Eighth Affirmative Defense 

(Statute of Limitations as to Plaintiffs’ First, Second and Fourth to Ninth Claims for Relief) 

162. Plaintiffs’ claims against Swagelok are barred in whole or in part due to the 

expiration of the applicable statute(s) of limitations. 

Twenty-Ninth Affirmative Defense 

(Laches as to Each Claim for Relief) 

163. Each of Plaintiffs’ Claims for Relief is barred by the equitable doctrine of laches. 

Thirtieth Affirmative Defense 

(Duplicative Recovery as to Each Claim for Relief) 

164. Plaintiffs’ claims are barred to the extent they are duplicative of one another or 

would result in double recoveries. 

Thirty-First Affirmative Defense 

(Waiver as to Each Claim for Relief) 

165. Each of Plaintiffs’ Claims for Relief is barred by the equitable doctrine of waiver. 

Thirty-Second Affirmative Defense 

(Estoppel as to Each Claim for Relief) 

166. Each of Plaintiffs’ Claims for Relief is barred by the equitable doctrine of 

estoppel. 

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Thirty-Third Affirmative Defense 

(Reservation of Additional Affirmative Defenses as to Each Claim for Relief) 

167. Swagelok reserves the right, based on further discovery and investigation, to assert 

and rely upon additional affirmative defenses.

PRAYER FOR RELIEF 

Swagelok prays for the following relief on the Amended Complaint: 

1. That Plaintiffs take nothing by way of their Second Amended Complaint, and that 

Plaintiffs’ claims be dismissed with prejudice; 

2. For recovery of an award of costs, including reasonable attorneys’ fees and costs, 

expert witness fees, and all related expenses to the full extent provided by law; and 

3. For any other such relief that the Court deems to be just and equitable. 

AMENDED COUNTERCLAIMS AND CROSSCLAIMS OF SWAGELOK COMPANY 

Pursuant to Rule 13 of the Federal Rule of Civil Procedure, Swagelok Company 

(“Swagelok”) alleges the following Counterclaims against Counterdefendants the Successor 

Agency to the Former Emeryville Redevelopment Agency (“Successor Agency”) and the City of 

Emeryville (“City”) (collectively, “Counterdefendants”), and the following Crossclaims against 

Crossdefendant Hanson Building Materials Limited (“Hanson”), as follows: 

Jurisdiction And Venue 

1. This Court has jurisdiction over Swagelok’s Counterclaims and Crossclaims 

pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act 

(“CERCLA”) Sections 107(a) and 113(g)(2), 42 U.S.C. §§ 9607(a) and 9613(b), the Resource 

Conservation and Recovery Act (“RCRA”) Section 7002(a)(2), 42 U.S.C. § 6972(a)(2), 28 U.S.C. 

§ 1331, 28 U.S.C. § 1367, and the Declaratory Judgment Act, 28 U.S.C. § 2201. 

2. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and 

42 U.S.C. § 9613(b) because events giving rise to the claims occurred in this District and the real 

property located at 5679 Horton Street, Emeryville, Alameda County, California (the “Horton 

Street Property”) that is subject of this action is in this District. 

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The Parties 

3. Swagelok is an Ohio corporation, with its principal place of business at 

29500 Solon Road, Solon, Ohio 44139. In Counterdefendants’ Second Amended Complaint 

(“Amended Complaint”), Swagelok is alleged to be the successor to and/or alter ego of Whitney 

Research Tool Company (“Whitney”), which occupied the Horton Street Property beginning in or 

after 1963 and until approximately May 1999 and which is alleged by Plaintiffs to have caused or 

contributed to certain contamination at the Horton Street Property. 

4. Swagelok is informed and believes, and on that basis alleges, that Successor 

Agency is a public agency, located and operating in Alameda County, California, and is the 

successor to the Emeryville Redevelopment Agency (“Redevelopment Agency”), which was a 

public entity created pursuant to applicable provisions of the California Health and Safety Code. 

Redevelopment Agency acquired the Horton Street Property in 1999. On information and belief, 

Redevelopment Agency later transferred title to the Horton Street Property to City, which later 

quitclaimed the Horton Street Property to Successor Agency, which is the current owner of record 

of the Horton Street Property. 

5. Swagelok is informed and believes, and on that basis alleges, that City is a 

municipal corporation located in Alameda County, California that at certain time(s) since 1999, 

has owned the Horton Street Property and has also occupied and used the Horton Street Property 

as a “corporation yard” for the maintenance of vehicles and equipment and other activities. 

6. Swagelok is informed and believes, and on that basis alleges, that Successor 

Agency has conducted an investigation of the Horton Street Property after entering into a 

voluntary cleanup agreement with the Department of Toxic Substances Control (“DTSC”) and 

that reports submitted on behalf of Successor Agency to DTSC identify chlorinated solvents and 

other chemicals detected during sampling conducted as part of that investigation. 

7. As part of the investigation of the Horton Street Property, monitoring wells were 

installed in such a manner as to allow chemicals present in the subsurface to migrate (and to 

continue to migrate) downward. This migration of chemicals as a result of the installation of the 

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monitoring wells has, on information and belief, enlarged the scope of the investigation 

conducted to date of the Horton Street Property and will enlarge the scope and cost of any 

remediation that may be required. 

8. Swagelok is informed and believes, and on that basis alleges, that Crossdefendant 

Hanson is a British corporation with its principal place of business in either Maidenhead, 

Berkshire, United Kingdom or London, United Kingdom. 

9. Swagelok is informed and believes, and on that basis alleges, that the Horton 

Street Property along with adjoining properties was owned and used by Marchant Calculating 

Machine Company (“Marchant”) from approximately 1910 until approximately 1959, to 

manufacture mechanical calculating machines. Swagelok is informed and believes, and on that 

basis alleges, that Marchant’s activities and operations were the source of releases of chemicals, 

including chlorinated solvents, which have been detected during sampling conducted as part of 

the investigation of the Horton Street Property. 

10. Swagelok is informed and believes, and on that basis alleges, that Hanson, as set 

forth in in paragraphs 21 to 51 of the Amended Complaint, is the successor-in-interest and/or alter 

ego of Marchant. 

AMENDED COUNTERCLAIMS 

FIRST COUNTERCLAIM 

(Claim for Contribution Under CERCLA) 

11. Swagelok incorporates paragraphs 1 through 7 as if set forth herein. 

12. City and Successor Agency each is a “person” within the meaning of CERCLA 

§ 106(21), 42 U.S.C. § 9601(21). 

13. The Horton Street Property is a “facility” within the meaning of CERCLA 

§ 106(9), 42 U.S.C. § 9601(9). 

14. On information and belief, there has been a release or threatened release at the 

Horton Street Property within the meaning of CERCLA § 106(22), 42 U.S.C. § 9601(22). That 

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release is of one or more “hazardous substances,” as defined in CERCLA § 106(14), 42 U.S.C. 

§ 9601(14). 

15. City and Successor Agency each is a “liable person” with respect to the Horton 

Street Property under and within the meaning of CERCLA § 107(a), 42 U.S.C. § 9607(a). 

16. Swagelok denies any liability under the Amended Complaint, including as the 

alleged alter ego and/or successor to Whitney. Swagelok is informed and believes, and on that 

basis alleges, that any alleged contamination at the Horton Street Property was not caused or 

associated with Whitney’s activities. Swagelok is further informed and believes and on that basis 

alleges, that to the extent any contamination occurred as a result of Whitney’s activities, any 

resulting harm was minimal and limited in scope and was separate and divisible from 

contamination for which others, including City and Successor Agency and Hanson, are 

responsible. 

17. CERCLA Section 113(f)(1) provides that any person may seek contribution from 

any other person who is potentially liable under CERCLA Section 107(a) during or following any 

civil action under CERCLA Sections 106 or 107(a). This Counterclaim is being is asserted 

during a “civil action . . . under section 9607(a)” against Swagelok. 

18. To the extent Swagelok is found to be liable under CERCLA to City and/or 

Successor Agency, Swagelok is entitled to contribution under CERCLA § 113, 42 U.S.C. § 9613, 

with respect to any liability in excess of its allocable and/or separate and divisible share of such 

response costs recoverable by City and/or Successor Agency. 

SECOND COUNTERCLAIM 

(Claim for Declaratory Relief Under 42 U.S.C. § 9613(g)(2) and 28 U.S.C. § 2201) 

19. Swagelok incorporates by reference paragraphs 1 through 7 and 12 to 18 as if set 

forth herein. 

20. An actual and substantial controversy, within the meaning of 28 U.S.C. § 2201, 

currently exists between Swagelok, City, and Successor Agency with respect to responsibility for 

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alleged past, present, and future response costs related to the alleged release or threatened release 

of hazardous substances at the Horton Street Property. 

21. Absent a judicial declaration setting forth the parties’ rights, duties, and 

obligations with respect to such costs, multiple legal actions may result. 

22. Pursuant to CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), the Court is authorized 

to enter a declaratory judgment on liability for future response costs for such alleged releases and 

threatened releases of hazardous substances at the Horton Street Property. 

23. Therefore, Swagelok requests a judicial determination of the rights, duties, and 

obligations of the parties to this action with respect to the alleged future response costs that have 

been made the subject of this action. 

THIRD COUNTERCLAIM 

(Claim for Injunctive Relief Under RCRA) 

24. Swagelok incorporates paragraphs 1 through 7 as if set forth herein. 

25. Swagelok is a “person” within the meaning of Section 1004(15) of RCRA, 

42 U.S.C. § 6903(15). 

26. City and Successor Agency is each a “person” within the meaning of Section 

1004(15) of RCRA, 42 U.S.C. § 6903(15). 

27. Swagelok is informed and believes, and on that basis alleges, that City and 

Successor Agency, including its predecessors, each is a person who has contributed to the past or 

present handling, “storage,” “treatment,” or “disposal” of a “solid waste” or “hazardous waste” at 

the Horton Street Property within the meaning of Sections 1004(3), 1004(5), 1004(6), 1004(27), 

1004(33) and 1004(34) of RCRA, 42 U.S.C. §§ 9603(3), 9603(5), 9603(6), 9603(27), 9603(33), 

and 9603(34). 

28. In accordance with Section 7002(b)(2)(A), 42 U.S.C. § 6972(b)(2)(A), and 

40 C.F.R. Part 254, Swagelok provided notice to the Administrator of the United States 

Environmental Protection Agency (“EPA”), the Regional Administrator of EPA Region 9, 

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the Director of DTSC and to City and Successor Agency more than ninety days before 

commencing this action. 

29. Paragraphs 76 through 81 of the Amended Complaint allege the existence of an 

imminent and substantial endangerment to health or the environment in and around the Horton 

Street Property. To the extent that these allegations establish the presence of an imminent and 

substantial endangerment to health or the environment in and around the Horton Street Property, 

Swagelok is entitled to injunctive relief requiring Counterdefendants to take such action as may 

be necessary to abate that imminent and substantial endangerment to health and the environment. 

FOURTH COUNTERCLAIM 

(Claim for Contribution Under the Polanco Act) 

30. Swagelok incorporates paragraphs 1 through 7 and paragraph 16 as if set forth 

herein. 

31. City and Successor Agency each is a “responsible party” within the meaning of 

California Health and Safety Code § 33459(h). 

32. To the extent Swagelok is found to be liable to Successor Agency under the 

Polanco Act, California Health and Safety Code § 33459 et seq., Swagelok is entitled to 

contribution from Counterdefendants with respect to any liability in excess of its allocable and/or 

separate and divisible share of costs recoverable by the Successor Agency. 

FIFTH COUNTERCLAIM 

(Claim for Contribution Under the Gatto Act) 

33. Swagelok incorporates paragraphs 1 through 7 and paragraph 16 as if set forth 

herein. 

34. The City and Successor Agency each is a “responsible party” within the meaning 

of California Health and Safety Code § 25403(s). 

35. To the extent Swagelok is found to be liable to the City under the Gatto Act, 

California Health and Safety Code § 25403 et seq., Swagelok is entitled to contribution from 

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Counterdefendants with respect to any liability in excess of its allocable and/or separate and 

divisible share of costs recoverable by the City. 

SIXTH COUNTERCLAIM 

(Claim for Contribution) 

36. Swagelok incorporates paragraphs 1 through 7 and 11 through 35 as if set forth 

herein. 

37. To the extent that Swagelok is liable under any of the claims for relief in the 

Amended Complaint, it is entitled to contribution from Counterdefendants. Such liability for 

contribution shall be with respect to any liability on such claims for relief and also as to any costs, 

damages, and/or expenses associated with the Horton Street Property and the investigation and 

remediation of contamination originating at or emanating from such property. 

SEVENTH COUNTERCLAIM 

(Claim for Equitable Indemnity) 

38. Swagelok incorporates paragraphs 1 through 7 and 11 through 35 as if set forth 

herein. 

39. Swagelok is entitled to full and/or partial equitable indemnity from 

Counterdefendants for any costs, damages, and/or expenses associated with the Horton Street 

Property and the investigation and remediation of contamination originating at or emanating from 

such property. 

AMENDED CROSSCLAIMS 

FIRST CROSSCLAIM 

(Claim for Contribution Under CERCLA) 

40. Swagelok incorporates paragraphs 1 through 10, 13, 14, and 16 as if set forth 

herein. 

41. Hanson is a “person” within the meaning of CERCLA § 101(21), 42 U.S.C. 

§ 9601(21). 

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42. Swagelok is informed and believes, and on that basis alleges, that Hanson, as the 

successor and/or alter ego of Marchant, is a “liable” person within the meaning of CERCLA 

§ 107(a), 42 U.S.C. § 9607(a). 

43. CERCLA Section 113(f)(1) provides that any person may seek contribution from 

any other person who is potentially liable under CERCLA Section 107(a) during or following any 

civil action under CERCLA Sections 106 or 107(a). This Crossclaim is being is asserted during a 

“civil action . . . under section 9607(a)” against Swagelok. 

44. To the extent Swagelok is determined to be liable under CERCLA to either City 

and/or Successor Agency in an amount in excess of its allocable and/or separate and divisible 

share of such response costs, Swagelok is entitled to contribution from Hanson, as the successor 

and/or alter ego of Marchant, under CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1). 

SECOND CROSSCLAIM 

(Claim for Declaratory Relief Under 42 U.S.C. § 9613(g)(2) and 28 U.S.C. § 2201) 

45. Swagelok incorporates paragraphs 1 through 10, 13, 14, 16, 17, and 40 through 44 

as if set forth herein. 

46. An actual and substantial controversy, within the meaning of 28 U.S.C. § 2201, 

currently exists between Swagelok and Hanson with respect to responsibility for alleged past, 

present, and future response costs which may have arisen or may yet arise from the alleged 

presence of hazardous substances and other substances at the Horton Street Property. 

47. Absent a judicial declaration setting forth the parties’ rights, duties, and 

obligations with respect to such costs, multiple legal actions may result. 

48. Pursuant to CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), the Court is authorized 

to enter a declaratory judgment on liability for future response costs to be incurred by the parties 

in this action, if any. 

49. Therefore, Swagelok requests a judicial determination of the rights, duties, and 

obligations of the parties to this action with respect to alleged future response costs that have been 

made the subject of this action. 

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THIRD CROSSCLAIM 

(Claim for Contribution) 

50. Swagelok incorporates paragraphs 1, 2 and 8 through 10 as if set forth herein. 

51. On information and belief, Marchant was the direct and proximate cause of 

releases at and contamination of the Horton Street Property. 

52. To the extent that Swagelok is liable under any of the claims for relief in the 

Amended Complaint, it is entitled to contribution from Crossdefendant Hanson as the successor 

and/or alter ego of the Marchant. Such liability for contribution shall be with respect to any 

liability on such claims for relief and also as to any costs, damages, and/or expenses associated 

with the Horton Street Property and the investigation and remediation of contamination 

originating at or emanating from such property. 

FOURTH CROSSCLAIM 

(Claim for Equitable Indemnity) 

53. Swagelok incorporates paragraphs 1, 2 and 8 through 10 as if set forth herein. 

54. Swagelok is entitled to full and/or partial equitable indemnity from Crossdefendant 

Hanson for any costs, damages, and/or expenses associated with the Horton Street Property and 

the investigation and remediation of contamination originating at or emanating from such 

property. 

PRAYER FOR RELIEF 

 Swagelok prays for the following relief on its Counterclaims and Crossclaims: 

1. That the Court enter judgment in favor of Swagelok and against City and Successor 

Agency on the Counterclaims; 

2. That the Court enter declaratory judgment in favor of Swagelok as requested in the 

Counterclaims; 

3. That the Court enter judgment in favor of Swagelok and against Hanson on the 

Crossclaims; 

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4. That the Court enter declaratory judgment in favor of Swagelok as requested in the 

Crossclaims; 

5. For recovery and an award of costs, including reasonable attorneys’ fees and costs, expert 

witness fees, and all related expenses to the full extent provided by law; and 

6. For any other such relief the Court deems to be just and equitable. 

Dated: October 6, 2017 

BAKER & HOSTETLER LLP 

By: /s/ Sonja A. Inglin 

 SONJA A. INGLIN 

 Attorneys for Defendant, Counterclaimant and 

Crossclaimant SWAGELOK COMPANY 

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SWAGELOK COMPANY’S ANSWER TO SECOND AMENDED COMPLAINT, 

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CERTIFICATE OF SERVICE 

I am a citizen of the United States and employed in Los Angeles County, California. I am 

over the age of eighteen years and not a party to the within-entitled action. My business address 

is 11601 Wilshire Boulevard, Suite 1400, Los Angeles, California 90025. On October 6, 2017, I 

served a copy of the within document(s): DEFENDANT SWAGELOK COMPANY’S 

ANSWER TO SECOND AMENDED COMPLAINT UNDER CERCLA, 42 U.S.C. 

SECTION 9601 ET SEQ., RCRA, 42 U.S.C. SECTION 6901 ET SEQ., AND STATE LAW 

TO RECOVER ENVIRONMENTAL CLEANUP COSTS AND RELATED RELIEF; AND 

SWAGELOK COMPANY’S AMENDED COUNTERCLAIMS AND CROSSCLAIMS by 

ELECTRONIC SERVICE/PACER-ECF: I caused the foregoing document to be electronically 

served via CM/ECF for the United States District Court, Northern District of California upon all 

parties listed on the court docket for this case; and I declare under penalty of perjury pursuant to 

the laws of the United States that I am employed in the office of a member of the bar of this court 

at whose direction the service was made. 

Executed on October 6, 2017, at Los Angeles, California. 

/s/ Ramona M. Gass Ramona M. Gass 

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