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Robert P. Doty (SBN 148069) 

rdoty@coxcastle. corn 

Ali P. Hamidi (SBN 191198) 

ahamidi@coxcastle.corn 

Christopher W. Gribble (SBN 285337) 

cgribble@coxcastle.com 

COX, CASTLE & NICHOLSON LLP 

50 California Street, Suite 3200 

San Francisco, CA 94111 

Telephone: (415) 262-5100 

Facsimile: (415) 262-5199 

Attorneys for plaintiffs 

The Successor Agency to the former Emeryville Redevelopment 

Agency and The City of Emeryville 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

THE SUCCESSOR AGENCY TO THE 

FORMER EMERYVILLE 

REDEVELOPMENT AGENCY AND THE 

CITY OF EMERYVILLE, 

Plaintiffs, 

vs. 

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. 

LAW OFFICES OF 

COX, CASTLE & 

NICHOLSON LLP 

SAN FRANCISCO 

Case No. 17-cv-00308-WHO 

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 

070431\9075316 SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

Case 3:17-cv-00308-WHO Document 67 Filed 10/05/17 Page 1 of 28
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Plaintiffs, Successor Agency to the former Emeryville Redevelopment Agency 

("Successor Agency") and the City of Emeryville ("City"), hereby allege against: Hanson Building 

Materials Limited; Swagelok Company; Whitney Research Tool Co.; and Catherine Lennon Lozick 

(collectively "Defendants") as follows and based on Plaintiffs' investigation thus far of publicly 

available documents, knowledgeable individuals, and other information and belief: 

NATURE OF THIS ACTION 

1. This is an action to recover environmental cleanup costs and damages caused 

by, and to obtain injunctive and declaratory relief against, Defendants. 

2. The action arises out of polluted groundwater and real property located on 

Horton Street in the City of Emeryville, Alameda County, California (the "Property"). The impacted 

groundwater is beneath and down gradient from (i.e., to the west of) the Property. The contamination 

was caused by industrial activities that occurred at the Property in the 1900s, and it is continuing and 

spreading to this day. Defendants are legally responsible for the contamination under federal statutes, 

California statutes that were derived from and largely mirror those federal statutes, and California 

common law. 

3. The industrial operations in question occurred from approximately 1910 until 

the late 1990s. From approximately 1910 to approximately 1959, the Property was owned by the 

Marchant Calculating Machine Company, a California corporation ("Marchant"), which used the site 

to manufacture mechanical calculating machines. In the late 1950s, Marchant merged with and into a 

company incorporated in the state of New York and famous, primarily, for typewriters SmithCorona. Smith-Corona was the surviving corporation in that merger. After the merger, Smith-Corona 

changed its name to Smith-Corona-Marchant, and the mechanical calculator business operated as the 

Marchant Division. Smith-Corona-Marchant subsequently shortened its name to SCM (hereafter, 

"SCM-NY"). SCM-NY owned and operated the Property for a time and eventually conveyed it to a 

third party by grant deed recorded in approximately 1959 as part of shifting the Marchant calculator 

division operations to a different but nearby location straddling the Emeryville-Berkeley border. 

SCM-NY's operations at the new property also contaminated that property with various hazardous 

substances. Both before and after its merger with Marchant, SCM-NY regularly conducted business 

LAW OFFICES OF 

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NICHOLSON LLP 

SAN FRANCISCO 

- 1 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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in California, including but not limited to acquiring the Marchant Corporation in a merger transaction, 

and operating the Marchant mechanical calculator business as a division within SCM-NY. 

4. From approximately the mid-1960s to the late 1990s, the Property was owned 

by affiliates of Defendant Swagelok Company ("Swagelok") and operated, nominally, by Whitney 

Research and Tool Company ("Whitney") an entity controlled and dominated by Swagelok to such 

an extent that it had no true separateness from Swagelok and was instead merely an agent, 

instrumentality, and alter ego through which Swagelok conducted its own integrated business. At 

Swagelok's behest, Whitney produced machine valves and/or parts for such valves at the Property. 

Swagelok continues to have a presence in California and conducts business in California. 

5. Marchant, as an independent company, SCM-NY through its Marchant 

Division, and Swagelok through its control and management of Whitney used chlorinated solvent 

compounds and petroleum-based compounds, among other chemicals, in their operations. The soil and 

soil vapor at the Property, and the groundwater at and down gradient from the Property, are 

contaminated primarily with chlorinated solvents (all such chemicals being commonly, and hereafter, 

referred to as "CVOCs"). The Property is also contaminated with petroleum-based compounds. The 

list of "contaminants of concern" also includes certain metals. The "contaminants of concern" are 

intermingled, in varying combinations at various locations at and down gradient from the Property. 

All of the contaminants of concern are traceable to the operations of Marchant, SCM-NY's Marchant 

division, and Whitney/Swagelok, but on account of their intermingled nature they cannot be allocated 

or apportioned among the historic owners or operators of the Properly, except by arbitrary means. 

6. In addition to the severe impact on groundwater at and down gradient from the 

Property, the contamination has rendered the approximately 47,000 square foot building located on the 

Property unsafe for use by the City employees who worked in the building until 2012. The 

contamination is thus causing ongoing loss of use damage to the City. Those damages are similarly 

incapable of apportionment, except by arbitrary means. 

7. Plaintiffs therefore seek the imposition of joint and several liability among the 

Defendants. 

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LAW OFFICES OF 

COX, CASTLE 070431 \ " 75316 - 2 SECOND AMENDED COMPLAINT UNDER CERCLAJSTATE LAW 

NICHOLSON LLP TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

SAN FRANCISCO. CASE NO. I7-CV-00308-WHO 

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8. Consistent with federal guidance documents followed by the State of California, 

the cost of the cleanup work needed to meet applicable state and federal standards has been estimated 

in a range from $35 million to $65 million, with $42 million listed on Plaintiff Successor Agency's 

most recent accounting of anticipated expenditures. Approximately $7.6 million of site investigation 

and remedial evaluation work has been conducted through the end of 2016. The Successor Agency, in 

cooperation with the City, has been implementing the necessary investigation and remedial planning 

work under regulatory oversight provided by the California Environmental Protection Agency's 

Department of Toxic Substances Control ("DTSC"). Notices pursuant to various statutes have been 

sent to the Defendants advising them that they could take responsibility for the remediation. None of 

the Defendants has indicated a willingness to conduct the necessary cleanup work. 

SUBJECT MATTER JURISDICTION 

9. This Court has subject matter jurisdiction over this action and the parties 

pursuant to section 113(b) of the Comprehensive Environmental Response, Compensation, and 

Liability Act ("CERCLA"), 42 U.S.C. § 9613(b); 42 U.S.C. § 6972(a) (a portion of the Solid Waste 

Disposal Act commonly referred to as the Resource Conservation and Recovery Act ("RCRA")); and 

28 U.S.C. § 1331 (federal question jurisdiction). This Court has jurisdiction over the related state law 

claims pursuant to 28 U.S.C. § 1367(a) (supplemental jurisdiction). 

VENUE 

10. Venue is appropriate in this District under CERCLA because the release of 

hazardous substances which gives rise to this action occurred within the District, and venue is 

appropriate under RCRA because the endangerment to health and the environment alleged here is 

occurring within the District. 

THE PARTIES 

11. Plaintiff Successor Agency is a public entity, located and operating in Alameda 

County, possessing its own name and legal capacity, authorized to sue and be sued in its own name, 

and created by the State of California to serve as the successor to the former Emeryville 

Redevelopment Agency, which was a public entity created pursuant to California's Community 

Redevelopment Law, section 33000 et seq. of the California Health and Safety Code. The former 

LAW OFFICES OF 

COX, CASTLE & 070431\9075316

NICIIOLSON LLP 

SAN FRANCISCO 

- 3 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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LAW OFFICES OF 

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SAN FRANCISCO 

Redevelopment Agency was authorized, among other things, to undertake certain environmental 

cleanup projects such as the one ongoing at the Property and to recover its cleanup costs and 

attorneys' fees from those parties made liable for the cleanup by CERCLA and its California 

analogues. All of the former Redevelopment Agency's rights, powers, duties and obligations are, by 

statute, now vested in the Successor Agency. Among its other duties, Plaintiff Successor Agency is 

responsible for enforcing all of the former Redevelopment Agency's rights that may benefit public 

agencies within California that share in property tax revenues. The Former Redevelopment Agency 

purchased all but a small fraction of the Property in 1999. 

12. Plaintiff City is a municipal corporation and a public body, corporate and 

politic, located in Alameda County, California. In connection with extending Horton Street, and 

through the exercise of eminent domain authority, the City acquired a factional interest in one parcel 

within the Property. On those and other grounds the City is not legally responsible for the 

contamination or any of the cleanup costs as a property owner. The City brings this action on its own 

behalf, as one of the land owners, and on behalf of the People of the State of California as authorized 

by § 731 of the California Code of Civil Procedure. 

13. Defendant Swagelok Company is an Ohio Corporation, with its principal place 

of business in Solon, Ohio. Swagelok manufactures, distributes, and sells precision valves and other 

components of gas and fluid control systems. 

14. Defendant Whitney Research Tool Co., which for a time used the name Whitey 

Research Tool Company, is a dissolved California Corporation and its principal place of business was 

in Emeryville, California. 

15. Defendant Hanson Building Materials Limited ("Hanson") is a British 

Corporation with its principal place of business in Maidenhead, Berkshire, United Kingdom. Hanson 

has at various times been known by other names, most prominently "Hanson PLC." Hanson was 

originally incorporated in or about 1950 as C. Wiles, Limited, and its "company number" with the 

Registrar of Companies for England Wales is 488067. 

16. Defendant Catherine Lennon Lozick ("Lozick") is an individual who resides in 

Ohio, and she was the sole beneficiary of the Catherine Lennon Lozick Trust, which was an Ohio trust 

070431\9075316 - 4 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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("CLL Trust"), and the Revocable Trust Agreement #3 f/b/o Catherine L. Lozick (also known or 

sometimes referred to as the Inter Vivos Revocable Trust Agreement #3 f/b/o Catherine L. Lozick u/a 

dated 10/1/86), which is an Ohio trust ("CLL Revocable Trust #3"), which was/were the former 

owner(s) of the Property. 

THE PROPERTY AND THE CONTAMINATION 

17. The Property is located at 5679 Horton Street, Emeryville, Alameda County, 

California, and it is identified by Alameda County Assessor's Parcel Numbers 49-1552-1 and 49-

1319-1-20. The Property is approximately 1.75 acres in size and is generally bounded by Union 

Pacific railroad tracks to the west, commercial/industrial properties to the north, Horton Street to the 

east, and Stanford Avenue and a former rail spur to the southeast/south. A map generally depicting 

the Property, its location in Emeryville, and the plume of contaminated groundwater emanating from it 

is attached to this Complaint as Exhibit A. 

18. Samples of soil, soil gas, and indoor air at the Property, and groundwater at and 

down gradient from the Property, confirm that the soil, soil gas, and indoor air at the Property, and 

groundwater at and down gradient from the Property are polluted with varying combinations of 

CVOCs including trichloroethene ("TCE"), tetrachloroethene ("PCE"), cis-1,2-dichloroethene 

("cDCE"), trans-1,2-dichloroethene ("1,2-DCE"), vinyl chloride, 1,1- dichloroethane ("1,1-DCA"), 

1,2- dichloroethane ("1,2-DCA"), 1,1,2-trichloroethane ("1,1,2-TCA"), chloroform, bromomethane, 

chlorobenzene, and methylene chloride. Each of the those chemicals is a "hazardous substance" 

within the meaning of federal law (i.e., CERCLA Section 101(14)) and within the corresponding 

definitions in the California statutes that are modeled after CERCLA and designed to enable local 

government to bring about the cleanup of contaminated properties—e.g., Health and Safety Section 

33459(c) (the definition of "hazardous substance" applicable to the Successor Agency's claim under 

the Polanco Act) and Health and Safety Code Section 25403(i) (the definition of "hazardous material" 

applicable to the City's claim under the Gatto Act, which extended cleanup authority similar to the 

Polanco Act to cities and other public agencies within California). Other hazardous chemicals 

meeting one or more of the foregoing statutory definitions have also been identified in the sampling 

070431\9075316 5 SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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data, including cadmium, lead, and various petroleum hydrocarbons. The various chemicals are 

intermixed to varying degrees in varying locations. 

19. The contamination at the Property has been evaluated using protocols approved 

by federal and state regulatory agencies, and the results of that analysis have been presented in, among 

other things, a Remedial Investigation and a Health Risk Assessment submitted to and approved by 

the State of California's DTSC, the lead regulatory agency for the site. The analysis presented in the 

risk assessment demonstrates unacceptable levels of ongoing risk to human health and the 

environment from material that is "solid waste" within the meaning of 42 U.S.C. ' 6903(27), thus 

establishing that conditions at the Property present an "imminent and substantial endangerment to 

health or the environment" within the meaning of RCRA, i.e., 42 U.S.C. § 6972(a)(1)(B). 

20. The investigation and cleanup work at the Property is being carried out in the 

public interest to reduce blight and alleviate nuisance conditions at and in the vicinity of the Property. 

HANSON'S CONNECTION TO THE CONTAMINATION 

21. Documentary and other evidence link hazardous substances at the Property to, 

among other things, the production of Marchant calculating machines. That operation included, but 

was not limited to, nickel-plating and enameling operations; grinding, hardening, and assembly 

operations; and associated functions. Marchant used various oils, chlorinated solvents, and other 

chemicals in its manufacturing operations at the Property; generated a variety of wastes in the course 

of its operations; and through those operations and waste-generating activities contributed to the 

CVOC and other contamination at the Property. 

22. Responsibility for the Marchant's operations and contamination at and near the 

Property flowed first to SCM-NY, via the merger referenced above in Paragraph 3, and subsequently 

to Defendant Hanson through later transactions, beginning in the mid-1980s. As of the mid-1980s, 

Hanson (then known as Hanson Trust Public Limited Company and then simply Hanson PLC) was, 

among other things, one of the foremost corporate raider/asset strippers of the era. 

23. Using hostile takeover tactics, including one or more tender offers to SCM-NY 

shareholders, some of whom were California residents, Hanson acquired control over SCM-NY, and 

SCM-NY became an indirect subsidiary of Hanson. Hanson acquired control over SCM-NY with the 

070431 \90753 16 - 6 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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intention of dissecting SCM-NY and transferring the resulting pieces of SCM-NY into various 

Hanson-controlled subsidiaries, which Hanson would then liquidate at opportune times. Hanson 

anticipated earning huge profits as the raider that captured the so-called break-up premium inherent in 

conglomerates like SCM-NY. 

24. Consistent with Hanson's plan, and in the summer of 1985 as Hanson was 

commencing a tender offer for SCM-NY, Hanson caused approximately 23 new Delaware 

corporations to be formed as indirect Hanson subsidiaries. The vast majority were given names 

beginning with "HSCM," "H" corresponding to Hanson and "SCM" corresponding to the target to be 

dissected. As a group they have been referred to as the "fan" companies. 

25. Shortly after winning its hostile tender offer battle for control over SCM-NY, 

Hanson orchestrated a series of transactions among SCM-NY and Hanson's fan companies. This 

"plan of liquidation" represented a single, unified business purpose—maximizing the benefit to 

Hanson from dismembering or de-conglomerating SCM-NY. 

26. Pursuant to Hanson's plan of liquidation for SCM-NY, Hanson caused specific 

assets and liabilities corresponding to specific business units within SCM-NY to be parceled out 

among HSCM-1 through HSCM-19. In each case, the "fan" company obtained the assets identified 

by Hanson by relinquishing SCM-NY shares that Hanson had caused to be allocated to the fan 

company. The fan companies then went on, as direct by Hanson, to liquidate SCM-NY in pieces. 

HSCM-6, for example, became the vehicle by which Hanson caused SCM-NY's Glidden paint 

business to be sold to a third party. HSCM-10, which would be renamed "Smith Corona Corporation," 

and another subsidiary dominated and controlled by Hanson, HM Holdings, Inc., were the conduits 

through which Hanson liquidated a majority stake in SCM-NY's historic typewriter/word processor 

business. 

27. As part of its unsuccessful takeover defense against Hanson, SCM-NY had 

created a subsidiary into which SCM-NY placed its chemical business. Hanson decided that chemical 

business would reside in HSCM-20, and Hanson accomplished that transition by causing SCM-NY to 

merge into HSCM-20 in late 1986, with HSCM-20 as the surviving entity. By employing a statutory 

merger of SCM-NY into HSCM-20 for this element of its dissection of SCM-NY, Hanson caused the 

LAW OFFICES OF 

COX, CASTLE & 070431\ " 75316

NICHOLSON LLP 

SAN FRANCISCO 

- 7 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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Marchant contamination liability at the Property to flow into HSCM-20 from SCM-NY (where it had 

been located since the late 1950s when the Marchant entity was merged into the pre-Hanson SCM-NY). 

28. The merger of SCM-NY into HSCM-20 also caused Marchant's jurisdictional 

contacts with California to pass into HSCM-20. That merger similarly caused SCM-NY's contacts 

with California, which arose from SCM-NY's operation of its Marchant Division at the Property, and 

at other locations in California, to flow into HSCM-20. 

29. 'In 1988, Hanson caused HSCM-20 to merge into yet another indirect, wholly 

owned, and Hanson-dominated subsidiary, HSCM Holdings Inc. Hanson then caused HSCM 

Holdings Inc. to merge into yet another indirect, wholly owned, and Hanson-dominated subsidiary, 

HM Holdings, Inc. The surviving entity at the end of that series of mergers was HM Holdings, Inc. 

("HM Holdings"). HM Holdings thus inherited Marchant's liability for contamination at the Property, 

and SCM-NY's liability for contamination at the Property, as a result of being a tool and 

instrumentality by which Hanson accomplished Hanson's goal of de-conglomerating SCM-NY. 

30. The transactions referred to in Paragraphs 26 to 31 above, and by which Hanson 

shifted SCM-NY's business units into to various Hanson subsidiaries, and caused Marchant liabilities 

to flow into HM Holdings, were not conducted at arms' length. The nature, forms, and terms of the 

transactions entered into by the various Hanson subsidiaries, through which Hanson implemented its 

plan to dismantle and selectively liquidate SCM-NY's businesses, were completely controlled by 

Hanson, to serve Hanson's interests. None of the Hanson subsidiaries participating in these 

transactions exercised any separate corporate minds, wills, agency, or existence in connection with 

these transactions. None of them was governed by a board of directors independent of Hanson. None 

of them was guided by a subset of board members independent of Hanson. None of them was advised 

by accountants, investment bankers, attorneys, and/or other professionals independent of Hanson. 

Instead, through overlapping boards of directors and officers as well as other means, each and all of 

them functioned simply as the agents, instrumentalities, conduits and alter egos by which Hanson 

pursued Hanson's business—the dismemberment and gradual liquidation of SCM-NY. 

31. There was at all relevant times a complete unity of interests among Hanson and 

the subsidiaries it used in pursuing the dismemberment of SCM-NY as evidenced by Hanson's 

070431 \9075316 - 8 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

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domination of the subsidiaries' pertinent policies, processes, and finances with the subsidiaries' cash 

accounts managed on a centralized basis such that Hanson could and did shift hundreds of millions of 

dollars back and forth without the negotiations and documentation that would have occurred if the 

involved entities had actually been separate corporations exercising their own separate corporate 

minds, wills, existence, and agency with their own professional advisors and agents. 

32. Hanson's plenary control over the dissection and selective liquidation of SCMNY is well demonstrated by, among other things, Hanson's actions with respect to SCM-NY's well 

known typewriter and word processor business, which Hanson monetized via a 1989 initial public 

stock offering (the " Typewriter IPO") that was marketed in California, among other places. 

33. Prior to and throughout the Typewriter IPO, Hanson dominated the entity that 

would be sold off in the public offering, HSCM-10. For example, Hanson caused HSCM-10 to change 

its name to Smith Corona Corporation so that the subsidiary could take advantage of that well-known 

name. According to public records prepared in connection with the Typewriter IPO, Hanson extracted 

$121 million of net cash payments from Smith Corona Corporation before the offering commenced. 

The Typewriter IPO prospectus indicates that sum was in addition to "approximately $386 million in 

dividend and other net payments to be made to Hanson in connection with the Reorganization and the 

Offerings." 

34. The transfers of those funds occurred without the negotiations and 

documentation that would have occurred if Smith Corona Corporation or its nominal parent entity 

(HM Holdings) had actually been corporations exercising corporate minds, wills, agency, or existence 

separate from Hanson's. 

35. Hanson also caused Smith Corona Corporation, HM Holdings, and various 

other entities controlled by Hanson to enter into a series of transactions referred to (in the 1989 

prospectus for the Typewriter IPO) as the "Reorganization." The 1989 prospectus explains that the 

Reorganization transactions were not conducted at arms' length. 

36. In the Reorganization and preparation for the Typewriter IPO, Hanson 

addressed, among other things, SCM-NY's legacy liabilities—i.e., liabilities associated with SCMNY's past businesses, operations, and properties such as the Marchant mechanical calculator business 

070431 \9075316 - 9 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

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and the Property. To facilitate the IPO, so that Hanson could profit from it, Hanson caused two of its 

subsidiaries (Smith Corona Corporation and HM Holdings) to enter into a "Cross Indemnity 

Agreement." Through that agreement, Hanson assured prospective buyers of the Typewriter IPO 

shares that the company they would be investing in was protected from all "Hanson Liabilities." 

Hanson caused that term to be defined to include any and all liabilities associated with any and all of 

SCM-NY's non-typewriter businesses including their (1) past use of property for manufacturing or 

industrial purposes; (2) releases of hazardous substances; and (3) "nuisances of whatever kind" arising 

from those past, non-typewriter operations and/or properties. 

37. Hanson thus explicitly and implicitly adopted as its own, assumed, and 

inherited Marchant's environmental liability at the Property, Marchant's contacts as a California 

corporation with its headquarters in California, and SCM-NY's liabilities and contacts associated with 

the mechanical calculator business conducted at the Property. 

38. Hanson reaped hundreds of millions of dollars of benefits from this process as 

follows. The assets and liabilities placed in Smith Corona Corporation prior to the IPO were valued 

by Hanson at approximately $82 million. The IPO generated net "proceeds" on the order of $290 

million, and the 1989 prospectus explained that Hanson was the sole beneficiary of those net proceeds. 

39. Neither Smith Corona Corporation, the issuing company, nor HM Holdings, the 

ostensible parent of Smith Corona, obtained any substantial proceeds from the Typewriter IPO 

according to the prospectus issued in connection with that offering. 

40. In connection with the Reorganization, the Cross-Indemnity Agreement, and the 

Typewriter IPO, neither Smith Corona Corporation nor its nominal parent, HM Holdings, had or 

exercised any separate corporate mind, will, agency, or existence. Neither had independent director 

vet the terms of the transactions instigated by Hanson. Neither of them engaged financial advisors, 

accountants or lawyers independent of Hanson to advise them on the transactions instigated by 

Hanson. Instead, throughout the process culminating in the sale of Typewriter IPO shares to the 

public, and through overlapping boards of directors and officers and other means, Smith Corona and 

HM Holdings functioned as mere agents, instrumentalities, conduits, and alter egos of Hanson by and 

through which Hanson continued to pursue its business objective—the systematic dismantling and 

010431\9075316 - 10 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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liquidation of SCM-NY. There was at all relevant times a complete unity of interests among Hanson, 

Smith Corona and HM Holdings as evidenced by Hanson's domination of the subsidiaries' pertinent 

policies, processes, and finances prior to the IPO. 

41. Hanson's alter ego relationship with HM Holdings continued subsequent to the 

1989 Typewriter IPO, and included a series of transactions undertaken in connection with Hanson's 

1996 "demerger." In those transactions, Hanson again dominated and controlled HM Holdings, 

forcing HM Holdings to engage again in non-arms-length transactions without vetting by directors, 

financial advisors, or legal counsel independent of Hanson. 

42. As part of the demerger, Hanson caused Millennium Chemicals, Inc. to be 

formed and caused HM Holdings to become a subsidiary of Millennium Chemicals. 

43. To obtain favorable tax treatment from U.K. tax authorities for Hanson and its 

shareholders, Hanson forced Millennium Chemicals to manage and control the HM Holdings chemical 

business in the U.K. despite the fact that the chemical business was an American corporation with 

predominantly American and other non-U.K operations. 

44. Hanson similarly dictated where Millennium's Board of Directors would 

function and meet. 

45. According to financial statements submitted to the SEC, Hanson obtained 

benefits worth hundreds of millions of dollars by using Millennium in this fashion, i.e., as an agent, 

instrumentality and/or alter ego of Hanson's. 

46. Neither HM Holdings, which subsequently became known as Millennium 

Holdings LLC, nor its nominal parent in the Hanson demerger (Millennium Chemical) exercised any 

corporate mind, will, agency, or existence separate from Hanson. Instead, they functioned during the 

demerger process as mere agents, instrumentalities, alter egos, and conduits by which Hanson pursued 

Hanson's interests in de-conglomerating itself. The nature, forms, and terms of the transactions 

entered into by HM Holdings and Millennium Chemical in the Hanson demerger were all controlled 

by Hanson to serve Hanson's interests. Hanson also dominated Millennium Chemicals' and HM 

Holdings' policies, processes, and finances controlling them as Hanson saw fit and without the 

LAW OFFICES OF 

COX, CASTLE & 070431\ 9075316

NICHOLSON LLP 

SAN FRANCISCO 

SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WI-10 

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negotiations and documentation that would have occurred if the involved entities had actually been 

corporations with their own separate minds, wills, agency, and existence. 

47. In their dealings with Hanson up to and including the Hanson demerger, HM 

Holdings and Millennium were not advised by directors, financial advisors, accountants, and/or legal 

counsel independent from Hanson. 

48. All of the actions and transactions alleged above, which give rise to (a) 

Hanson's alter ego status in relation to SCM-NY, HSCM-20, HM Holdings, and Millennium Holdings 

in connection with Marchant's liability for the contamination at the Property, and (b) the imputation to 

Hanson of Marchant's and SCM-NY's contacts with California were freely, voluntarily and 

purposefully undertaken by Hanson in pursuit of Hanson's own self-interest such that Hanson knew 

and understood, or in the exercise of reasonable diligence should have known and understood, that it 

could be subject to litigation in California over the environmental contamination at the Property. 

49. Hanson sold itself to a German corporation, Heidelberg Cement, in 2007 and 

exists today as a non-publicly traded subsidiary of that entity. By the time of that transaction, Hanson 

owned "a dense network of sand, gravel and hard stone production sites in the United States," 

including several in California according to the websites documenting its corporate history and press 

reports. 

50. Hanson holds itself out to the marketplace using various names such as Hanson 

UK and, in the United States, Lehigh-Hanson. Hanson claims a business presence in the Northern 

District of California dating back to at least 1952. 

51. It would be unfair and inequitable to allow Hanson to profit from the shuffling of 

the Marchant/SCM-NY liabilities, while simultaneously allowing it to disclaim the liabilities it 

assumed and/or controlled to obtain those gains. This is especially true where, as here, any such 

disclaimer would shift those liabilities to the tax paying public, as opposed to another willing for-profit 

market participant. For example, it would be unfair and inequitable for Hanson to characterize the 

contamination at the Property as a "Hanson Liability," as it caused its subsidiaries to do in the 

aforementioned Cross Indemnity Agreement, when doing so served Hanson's purposes in connection 

with the Typewriter IPO, only to later allow it avoid either the jurisdictional contacts associated with 

070431\9075316 - 12 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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Marchant's mechanical calculator operations at the Property or liability for the environmental cleanup 

needed to abate the contamination associated with what Hanson freely and voluntarily labeled as a 

"Hanson Liability." 

SWAGELOK AND LOZICK 

52. Documentary and other evidence also link the hazardous substances and 

materials at the Property to Swagelok via its operation of Whitney (f/k/a /Whitey) Research and Tool 

Co. Those operations included a grease room, hazardous waste area, solvent recovery area, and drum 

storage areas, among others. Whitney used and disposed of chlorinated solvents, and specifically TCE 

in the course of its operations at the Property. 

53. Whitney was founded in or around 1959 as a California Corporation, and 

changed its name to Whitney from Whitey in or around 1976. Whitney manufactured valves for gas 

and fluid systems and those valves were sold under the brand name "Whitey" as a unified product 

offering by Swagelok. Whitney/Whitey began manufacturing operations at the Property around 1963 

and continued such operations until approximately 1999. Throughout its history, Whitney/Whitey 

was an integrated component of Swagelok, not a corporation with any true and separate corporate 

existence, mind, will, or agency. Swagelok's corporate website lists "Whitey" as a Swagelok brand 

that has been "unifie[d]" into Swagelok for many years. 

54. Swagelok's domination and control over Whitney was accomplished by and 

through, among other things, shared executives and stockholders. Fred A. Lennon, the founder and 

majority owner Swagelok, was a majority owner of Whitney, and Mr. Lennon's son-in-law, Edward 

A. Lozick, held executive positions at both Swagelok and Whitney. At the time Whitney dissolved as 

a California Corporation, in 1999, Mr. Lozick was identified as the sole director of Whitney. Francis 

Joseph Callahan, who at various times held the positions of president, chief executive officer, and 

chairman of the board of Swagelok also served as president of Whitney. By these and other means, 

Swagelok exercised complete control over Whitney's operations, finances, and business policies and 

practices such that Whitney was merely an agent or instrumentality through which Swagelok 

conducted one part of Swagelok's business. 

070431\9075316 - 13 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I 7-CV-00308-WHO 

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55. Swagelok directed and controlled the operations of Whitney, including 

Whitney's manufacturing and waste-handling and disposal activities at the Property, which have 

contributed to the releases of hazardous substances at the Property. Upon its dissolution, which 

Swagelok instigated, Swagelok directed the assets of Whitney be transferred to Swagelok so that the 

latter could and did continue Whitney's operations without interruption. Thus, Swagelok is the mere 

continuation of Whitney, and/or the operations of Whitney were merged into Swagelok. Swagelok 

also assumed, either explicitly or implicitly, all liabilities of Whitney so that the operations associated 

with Whitney could continue without interruption. 

56. During the period when Whitey/Whitney operated there, title to the Property 

was held in other Swagelok-affiliated companies and entities including Endicott Co., Calbit, Co. and 

the CLL Trust and/or CLL Revocable Trust #3. Those entities were under common control at all 

relevant times with Swagelok and/or Fred A. Lennon such that they functioned as additional conduits 

for Swagelok's control over Whitney. 

57. At all relevant times, a unity of interests existed between Swagelok and 

Whitney such that any individuality and separateness between Swagelok and Whitney ceased, and 

Whitney existed as a mere alter ego of Swagelok as follows: (a) Whitney was a mere shell, 

instrumentality and/or conduit through which Swagelok carried on its business; and (b) Whitney was 

controlled, dominated and/or operated by Swagelok. Adherence to the fiction of the separate 

existence of Whitney as an entity distinct from Swagelok would permit an abuse of the corporate 

privilege and would sanction fraud, promote injustice, and lead to an inequitable result in that it would 

permit Swagelok to escape its obligation to clean up the hazardous substances released at the Property 

at its behest and leave innocent taxpayers with that obligation. 

58. Swagelok continues to maintain a presence in California, maintaining offices 

and/or division in northern California, Los Angeles, and San Diego and continues to sell and distribute 

its product in California including, but not limited to, legacy Whitney products. 

59. Title to the Property shifted from Calbit, Co. (a Swagelok/Fred A. Lennon 

controlled entity) to the CLL Trust in 1988, an entity that was under common control with Swagelok 

and/or Fred A. Lennon. In 1999, the CLL Trust and/or CLL Revocable Trust #3 sold the Property to 

LAW OFFICES OF 

COX, CASTLE & 070431 \ 9075316 

NICIIOLSON LLP 

SAN FRANCISCO 

- 14 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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SAN FRANCISCOthe Emeryville Redevelopment Agency. At the time of the sale, the successor trustee of the CLL 

Trust was Edward Lozick, who was Catherine Lennon Lozick's husband and an officer of both 

Swagelok and Whitney. During the time the trust owned the Property, operations directed by 

Swagelok caused additional releases of hazardous chemicals. Swagelok's executives, including 

Edward Lozick, were aware of contamination at the Property at the time the Property was sold to the 

Emeryville Redevelopment Agency. 

60. Catherine Lennon Lozick was the sole beneficiary of the CLL Trust and/or CLL 

Revocable Trust #3. In 2003, the assets of the CLL Trust and/or CLL Revocable Trust #3 were 

distributed to Ms. Lozick. Those assets are believed to have exceeded $1.5 billion, and included an 

approximately 65% ownership interest in Swagelok as well as the proceeds of the 1999 sale of the 

Property. At some point thereafter, the CLL Trust and/or CLL Revocable Trust #3 was/were 

dissolved. 

FIRST CLAIM FOR RELIEF 

(CERCLA—By Successor Agency and City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

61. Plaintiffs re-allege paragraph 1 through 60 above and incorporate those 

paragraphs here by reference. 

62. Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in pertinent part: 

Notwithstanding any other provision or rule of law, and subject 

only to the defenses set forth in subsection (b) of this section 

* * * 

(1) the owner and operator of a vessel or facility, 

(2) any person who at the time of disposal of any hazardous 

substance owned or operated any facility at which such hazardous 

substances were disposed of, [and] 

(3) any person who by contract, agreement, or otherwise arranged 

for disposal or treatment . . of hazardous substances owned or 

possessed by such person, [or] by any other party or entity, at any 

facility or incineration vessel owned or operated by another person 

or entity and containing such hazardous substances, 

* 

shall be liable for—

** 

070431. \ 9075316 - 15 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE. LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I 7-CV-00308-WHO 

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(A) all costs of removal or remedial action incurred by the United 

States Government or a State, or an Indian Tribe not inconsistent 

with the national contingency plan; 

(B) any other necessary costs of response incurred by any other 

person consistent with the national contingency plan . . . . 

42 U.S.C. § 9607(a)(1)---(3), (A) and (B). 

63. The Successor Agency and City are each a "person" within the meaning of 

Section 101(21) of CERCLA, 42 U.S.C. § 9601(21). 

64. Defendants Hanson, Swagelok, Whitney, and Lozick are each a "person" within 

the meaning of Section 101(21) of CERCLA, 42 U.S.C. § 9601(21). 

65. The Property constitutes a "facility" under Section 101(9) of CERCLA, 42 

U.S.C. § 9601(9), in that hazardous substances were deposited, stored, disposed of, placed, or came to 

be located there. 

66. Defendants Hanson, Swagelok, Whitney, and Lozick including predecessors, 

affiliates, and/or subsidiaries for which they are liable, were each owners and/or operators of the 

Property at the time hazardous substances were disposed of there within the meaning of Section 

101(20)(A) of CERCLA, 42 U.S.C. § 9601(20)(A), and Section 107(a)(2) of CERCLA, 42 U.S.C. §§ 

9607(a) (2). 

67. Defendants Hanson, Swagelok, Whitney, and Lozick including predecessors 

and/or subsidiaries for which they are liable, each arranged for the treatment or disposal of one or 

more hazardous substances at the Property within the meaning of Section 107(a)(3) of CERCLA, 42 

U.S.C. § 9607(a)(3). 

68. Some or all of the hazardous substances (including but not limited to TCE) 

discharged, deposited, disposed, spilled or emitted into the soil and groundwater at the Property 

constitute "hazardous substances" under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), and in 

the regulations promulgated under Section 102 of CERCLA, 42 U.S.C. § 9602. 

69. There were one or more "releases" of hazardous substances within the meaning 

of Section 101(22) of CERCLA, 42 U.S.C. § 9601(22). The release(s) at the Property are ongoing. 

070431\9075316 - 16 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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70. The costs the Successor Agency and City have incurred and/or will incur in 

responding to the release(s) of hazardous substances at the Property are necessary costs of response 

that are consistent with the National Contingency Plan. 

71. Under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), defendants Hanson, 

Swagelok, Whitney, and Lozick each are strictly and jointly and severally liable to the Successor 

Agency and City for all response costs the Successor Agency and City have incurred to date and/or 

will incur in the future. 

72. Wherefore Plaintiffs pray for judgment as set forth below. 

SECOND CLAIM FOR RELIEF 

(CERCLA Declaratory Relief—By Successor Agency and City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

73. Plaintiffs re-allege paragraph 1 through 72 above and incorporate those 

paragraphs here by reference. 

74. An actual controversy has arisen and now exists between Plaintiffs on the one 

hand and the defendants Hanson, Swagelok, Whitney, and Lozick on the other with respect to their 

respective rights and obligations under CERCLA. 

75. Issuance of a declaratory decree pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 

9613(g)(2) therefore is necessary and appropriate. 

THIRD CLAIM FOR RELIEF 

(RCRA—By Successor Agency and City against Defendants 

Hanson, Swagelok, and Whitney) 

76. Plaintiffs re-allege paragraph 1 through 60 above and incorporate those 

paragraphs here by reference. 

77. Section 7002(a) of RCRA, 42 U.S.C. § 6972(a), provides in pertinent part: 

(a) Except as provided in subsection (b) or (c) of this section, any 

person may commence a civil action on his own behalf 

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(1)(B) against any person, . . . who has contributed or who is 

contributing to the past or present handling, storage, treatment, 

LAW OFFICES OF 

COX, CASTLE .81 070431\ 9075316

NICHOLSON LLP 

SAN FRANCISCO 

- 17 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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transportation, or disposal of any solid or hazardous waste which 

may present an imminent and substantial endangerment to health 

or the environment . . . 

78. The Successor Agency and the City are each a "person" within the meaning of 

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

79. Defendants Hanson, Swagelok, and Whitney, including predecessors and/or 

subsidiaries for which they are liable, each are a "person" within the meaning of Section 1004(15) of 

RCRA, 42 U.S.C. § 6903(15). 

80. Defendants Hanson, Swagelok, and Whitney, including predecessors and/or 

subsidiaries for which they are liable, each are a person who has contributed to the past or present 

handling, "storage," "treatment," or "disposal" of a "solid waste" or "hazardous waste" within the 

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

§ 6903(3), 6903(5), 6903(6), 6903(27), 6903(33) and 6903(34). 

81. The storage, treatment, handling or disposal of solid or hazardous waste 

contributed to by defendants Hanson, Swagelok, and Whitney, including predecessors and/or 

subsidiaries for which they are liable, present an imminent and substantial endangerment to health or 

the environment in and around the Property. 

82. In accordance with Section 7002(b)(2)(A), 42 U.S.C. § 6972(b)(2)(A), and 40 

C.F.R. Part 245, the Successor Agency and City provided notice of the endangerment to the 

Administrator of EPA, the Regional Administrator of EPA Region 9, the Director of California 

Department of Toxic Substances Control and to the Defendants more than ninety days before 

commencing this action. 

83. Under Section 7002(a) of RCRA, 42 U.S.C. § 6972(a)(2), this Court has 

jurisdiction to: 

restrain any person who has contributed to the past or present 

handling, storage, treatment, transportation, or disposal of any 

solid or hazardous waste referred to in paragraph (1)(B), to order 

such person to take such other action as may be necessary, or both 

. . . and to apply any appropriate civil penalties under section 

6928(a) and (g) of this title. 

070431\9075316 - 18 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I 7-CV-00308-WI-10 

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84. The Plaintiffs are entitled, therefore, to an injunction ordering defendants 

Hanson, Swagelok, and Whitney to take such action as may be necessary to abate the imminent and 

substantial endangerment to health and the environment at the Property, i.e., implement the cleanup 

plan to be approved by the State of California. 

FOURTH CLAIM FOR RELIEF 

(Polanco Act—By Successor Agency against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

85. The Successor Agency re-alleges paragraphs 1 through 75 above and 

incorporates those paragraphs here by reference. 

86. The Polanco Redevelopment Act, Section 33459 et seq. of the California Health 

and Safety Code, authorizes redevelopment agencies and their statutorily designated successor 

agencies to take actions to remedy or remove releases of hazardous substances from property within 

redevelopment areas, and to recover cleanup costs, interest, and attorneys' fees from responsible 

parties. 

87. The Property is located within a duly created redevelopment area, and plaintiff 

Successor Agency enjoys all rights previously held by the Emeryville Redevelopment Agency, 

including but not limited to right to assert a cause of action under the Polanco Act. 

88. Sections 33459.4(a) and (c) of the California Health and Safety Code provide, 

in pertinent part: 

[If] a redevelopment agency undertakes action to remedy or 

remove, or to require others to remedy or remove, including 

compelling a responsible party through a civil action, to remedy or 

remove a release of hazardous substance, any responsible party or 

parties shall be liable to the redevelopment agency for the costs 

incurred in the action . . . includ[ing] the interest on the costs 

accrued from the date of expenditure and reasonable attorney's 

fees . . . 

* * * 

An agency may recover any costs incurred to develop and to 

implement a cleanup or remedial action plan approved pursuant to 

Sections 33459.1 and 33459.3, to the same extent the California 

Environmental Protection Agency, Department of Toxic 

Substances Control ("DTSC") is authorized to recover those costs. 

LAW OFFICES OP 

COX, CASTLE & 070431\ " 75316

NICHOLSON L LP 

SAN FRANCISCO 

- 19 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I7-CV-00308-WHO 

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The scope and standard of liability for cost recovery pursuant to 

this section shall be the scope and standard of liability under the 

Comprehensive Environmental Response, Compensation, and 

Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.) 

[CERCLA] as that act would apply to [DTSC]; provided, however, 

that any reference to hazardous substance therein shall be deemed 

to refer to hazardous substance as defined in subdivision (c) of 

Section 33459. 

89. Under CERCLA Section 107(a), 42 U.S.C. § 9607(a), DTSC is entitled to 

recover response costs unless the costs were incurred in an arbitrary and capricious fashion. 

90. The costs the Successor Agency has incurred and will incur in connection with 

investigating and cleaning up hazardous substances at the Property are neither arbitrary nor capricious, 

and the Successor Agency has complied with all its obligations under Section 33459 et seq. and other 

applicable laws, or its compliance has been waived or excused. 

91. Defendants Hanson, Swagelok, Whitney, and Lozick are "responsible parties" 

as that term is defined in Section 33459(h) of the California Health and Safety Code. 

92. Pursuant to California Health and Safety Code Section 33459.4, defendants 

Hanson, Swagelok, Whitney, and Lozick are strictly and jointly and severally liable to the Successor 

Agency for the costs incurred and to be incurred in connection with investigating and cleaning up the 

hazardous substances on, under and/or emanating to and from the Property, interest on those costs, and 

the Successor Agency's attorneys' fees. 

93. Wherefore the Successor Agency prays for judgment as hereinafter set forth. 

FIFTH CLAIM FOR RELIEF 

(Gatto Act (AB440)—By the City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

94. The City re-alleges paragraphs 1 through 75 above and incorporates those 

paragraphs here by reference. 

95. The Gatto Act (AB440), Section 25403 et seq. of the California Health and 

Safety Code, authorizes local agencies such as the City to take actions to remedy or remove releases of 

LAW OFFICES OF . 

COX, CASTLE & 070431 9075316 

NICHOLSON LLP 

SAN FRANCISCO 

- 20 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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hazardous materials from blighted property within a blighted area, and to recover cleanup costs, 

interest, and attorneys' fees from responsible parties. 

96. On June 16, 2015, the City adopted a resolution that the Property is a "blighted 

property" as that term is defined in Section 25403(b) of the California Health and Safety Code because 

of the presence of hazardous materials (particularly TCE) at the Property. The City also determined 

that the area of the City known as the Horton District (which includes the Property) is a "blighted 

area" as that term is defined in Section 25403(a) of the California Health and Safety. 

97. Sections 25403.5(a) and (c) of the California Health and Safety Code provide, 

in pertinent part: 

[I]f a local agency undertakes action to investigate property or 

clean up, or to require others to investigate or clean up, including 

compelling a responsible party through a civil injunctive action, a 

release or hazardous material, the responsible party shall be liable 

to the local agency for the costs incurred in the action . 

includ[ing] the interest on the costs accrued from the date of 

expenditure and reasonable attorneys' fees. 

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A local agency may recover any costs incurred to develop and to 

implement a cleanup plan approved pursuant to this chapter, to the 

same extent the department [DTSC] is authorized to recover costs. 

The scope and standard of liability for cost recovery pursuant to 

this section shall be the scope and standard of liability under the 

federal Comprehensive Environmental Response, Compensation, 

and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et 

seq.) [CERCLA] as that act would apply to the department 

[DTSC]. However, any reference to hazardous substance in that act 

shall be deemed to refer to hazardous material as defined in section 

25403. 

98. Under CERCLA Section 107(a), 42 U.S.C. § 9607(a), DTSC is entitled to 

recover response costs unless the costs were incurred in an arbitrary and capricious fashion. 

99. The costs the City has incurred and/or will incur in connection with 

investigating and cleaning up hazardous materials at the Property are neither arbitrary nor capricious, 

and the City has complied with all its obligations under Section 25403 et seq. of the California Health 

and Safety Code and other applicable laws, or its compliance has been waived or excused. 

100. Defendants Hanson, Swagelok, Whitney, and Lozick are each a "responsible 

party" as that term is defined in Section 25403(s) of the California Health and Safety Code. 

070431 \ 9075316 - 21 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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101. Pursuant to California Health and Safety Code Section 25403.5, Hanson, 

Swagelok, Whitney, and Lozick are strictly and jointly and severally liable to the City for the costs 

incurred and to be incurred by the City in connection with investigating and cleaning up the hazardous 

materials on, under and/or emanating from the Property, interest on those costs, and the City's 

attorneys' fees. 

102. Wherefore the City prays for judgment as hereinafter set forth. 

SIXTH CLAIM FOR RELIEF 

(Continuing Public Nuisance—By City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

103. The City re-alleges paragraphs 1 through 75 and 94 through 102 above and 

incorporates those paragraphs here by reference. 

104. The discharging, depositing, disposing, or releasing of hazardous substances at 

the Property has resulted in conditions that constitute a public nuisance within the meaning of Section 

3480 of the California Civil Code. 

105. The nuisance is continuing in that the hazardous substances, materials and/or 

wastes discharged, deposited, disposed of, or released at the Property is actually and practically 

abatable by reasonable measures and without unreasonable expenses, and in that its impact varies over 

time. 

106. The discharging, depositing, disposing, or release of hazardous substances 

violated, among other things, California Fish and Game Code § 5650(a), Water Code § 13304, and 

California Health & Safety Code § 5411. The conditions thus constitute a nuisance per se. 

107. The City is entitled to maintain this action for public nuisance because it is a 

public body authorized by law to abate this type of nuisance within the meaning of California Civil 

Code Section 3494 and Section 731 of the California Code of Civil Procedure. 

108. Defendants Hanson, Swagelok, Whitney, Lozick and the entities for which they 

are liable, caused the nuisance conditions by discharging, depositing, disposing of, or releasing 

hazardous substances, materials and/or wastes onto the Property or by allowing other persons or 

entities subject to their direction and control to engage in such activities. 

070431\9075316 - 22 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I7-CV-00308-WHO 

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109. As a direct and proximate result of the nuisance created and/or maintained by 

defendants Hanson, Swagelok, Whitney, and Lozick, the City has suffered the damages alleged herein 

and is entitled to seek abatement as provided by California law. 

110. Wherefore the City prays for judgment as hereinafter set forth. 

SEVENTH CLAIM FOR RELIEF 

(Continuing Private Nuisance—Successor Agency and City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

111. Plaintiffs re-allege paragraphs 1 through 75 and 85 through 110 above and 

incorporate those paragraphs here by reference. 

112. The hazardous substances, materials and/or wastes discharged, deposited, 

disposed of, or released at the Property as a result of the conduct by defendants Hanson, Swagelok, 

Whitney, Lozick, and/or entities for which they are liable, have resulted, alternatively, in conditions 

that constitute a continuing private nuisance within the meaning of Section 3479 of the California 

Civil Code. 

113. The nuisance is continuing in that the hazardous substances, materials and/or 

wastes discharged, deposited, disposed of, or released at the Property is actually and practically 

abatable by reasonable measures and without unreasonable expenses, and in that its impact varies over 

time. 

114. The discharging, depositing, disposing, or release of hazardous substances 

violated, among other things, California Fish and Game Code § 5650(a), Water Code § 13304, and 

California Health & Safety Code § 5411. The conditions thus constitute a nuisance per se. 

115. Defendants Hanson, Swagelok, Whitney, Lozick and/or entities for which they 

are liable, caused the nuisance conditions by discharging, depositing, disposing of, or releasing 

hazardous substances, materials and/or wastes at the Property or by allowing other persons or entities 

subject to their direction and control to engage in these activities. 

116. The nuisance has interfered with and continues to interfere with the City's use 

and enjoyment the Property. 

LAW OFFICES OF 

cdx, CASTLE & 070431\ " 75316

NICHOLSON LLP 

SAN FRANCISCO 

- 23 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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117. As a direct and proximate result of this nuisance, Plaintiffs have suffered the 

damages alleged herein. 

118. Wherefore Plaintiffs pray for judgment as hereinafter set forth. 

EIGHTH CLAIM FOR RELIEF 

(Continuing Trespass—Successor Agency and City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

119. Plaintiffs re-allege paragraphs 1 through 75 and 85 through 118 above and 

incorporates those paragraphs here by reference. 

120. Defendants Hanson, Swagelok, Whitney, Lozick and/or entities for which they 

are liable, have committed trespass against Successor Agency's and the City's property interests 

because Defendants have discharged, deposited, disposed of, or released hazardous substances, 

materials and/or wastes onto the Property without Plaintiffs' consent and/or by failing to remove such 

hazardous substances, materials and/or wastes from the Property, or by permitting other persons or 

entities subject to the Defendants' direction or control to engage in these activities. 

121. The trespass is continuing in that the hazardous substances, materials and/or 

wastes discharged, deposited, disposed of, or released onto the Property are actually and practically 

abatable by reasonable measures and without unreasonable expenses. 

122. As a direct and proximate result of the trespass Plaintiffs have suffered the 

damages alleged herein. 

123, Wherefore Plaintiffs pray for judgment as hereinafter set forth. 

NINTH CLAIM FOR RELIEF 

(Equitable Indemnity—Successor Agency and City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

124. The Successor Agency re-alleges paragraphs 1 through 123 (except paragraphs 

76 through 84 and 94 through 110) and incorporates those paragraphs here by reference. The City re070431 \9075316 - 24 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I 7-CV-00308-WHO 

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alleges paragraphs 1 through 123 (except paragraphs 76 through 93) and incorporates those 

paragraphs here by reference. 

125. The contamination at the Property was caused by the wrongful conduct of 

defendants Hanson, Swagelok, Whitney, Lozick and/or entities for which they are liable as alleged 

herein. Plaintiffs are without fault in connection with the contamination at and emanating from the 

Property. 

126. As a direct and proximate result of the wrongful conduct of these Defendants, 

Plaintiffs have incurred and will continue to incur costs, expenses, and damages. 

127. Plaintiffs are entitled to full equitable indemnity for such costs, damages, and 

expenses from defendants Hanson, Swagelok, Whitney, and Lozick. 

128. Therefore Plaintiffs pray for judgment as hereinafter set forth. 

TENTH CLAIM FOR RELIEF 

(Declaratory Relief—Successor Agency and City against Defendants 

Hanson, Swagelok, Whitney, and Lozick) 

129. The Successor Agency re-alleges paragraphs 1 through 128 (except paragraphs 

76 through 84 and 94 through110) and incorporates those paragraphs here by reference. The City realleges paragraphs 1 through 128 (except paragraphs 76 through 93) and incorporates those 

paragraphs here by reference. 

130. An actual controversy exists between Plaintiffs and defendants Hanson, 

Swagelok, Whitney, and Lozick with respect to their rights and obligations under state law, and 

Plaintiffs seek a judicial determination of the respective rights and duties of the parties with respect to 

the rights, claims and damages alleged herein. 

131. The requested declaration is necessary and appropriate at this time. 

132. Wherefore Plaintiffs pray for judgment as hereinafter set forth. 

PRAYER FOR RELIEF 

Wherefore, the Successor Agency and City pray for relief as follows: 

LAW OFFICES OF 

COX, CASTLE & 070431\9075316 

NICHOLSON LLP 

SAN FRANCISCO 

- 25 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. 17-CV-00308-WHO 

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1. On the first claim for relief, for recovery of all response costs incurred or to be 

incurred by the Successor Agency and/or the City in connection with the Property consistent with the 

National Contingency Plan, including statutory interest; 

2. On the second claim for relief, for a judicial declaration that defendants Hanson, 

Swagelok, Whitney, and Lozick are jointly and severally liable for all response costs incurred and to 

be incurred by the Successor Agency and/or the City in connection with the Property consistent with 

the National Contingency Plan; 

3. On the third claim for relief, for an injunction ordering the Defendants to abate 

the imminent and substantial endangerment to health and the environment; 

4. On the fourth claim for relief, for recovery of all response costs incurred or to 

be incurred by the Successor Agency in connection with the Property, including attorneys' fees and 

statutory interest; 

5. On the fifth claim for relief, for recovery of all response costs incurred or to be 

incurred by the City in connection with the Property, including attorneys' fees and statutory interest; 

6. On the sixth claim for relief, for recovery by the City for compensatory 

damages and abatement in amount to be determined at trial; 

7. On the seventh claim for relief, for recovery by the Successor Agency and the 

City for compensatory damages in amount to be determined at trial; 

8. On the eighth claim for relief, for recovery by the Successor Agency and the 

City for compensatory damages in amount to be determined at trial; 

9. On the ninth claim for relief, for recovery by the Successor Agency and City for 

compensatory damages in amount to be determined at trial; 

10. On the tenth claims for relief, for entry of declaratory judgment on the 

Successor Agency's and City's state law claims; 

11. As to all claims for relief, for all costs, attorneys' fees, interest and expenses, to 

the fullest extent provided by law; and 

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070431\9075316 - 26 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I 7-CV-00308-WI-10 

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12. For such other and further relief as the Court may deem just and proper. 

October 5, 2017 COX, CASTLE & NICHOLSON LLP 

By: /s/ Robert P. Doty 

Robert P. Doty 

Ali P. Hamidi 

Christopher W. Gribble 

Attorneys for Plaintiffs 

The Successor Agency to the former Emeryville 

Redevelopment Agency and The City of Emeryville 

070431\9075316 - 27 - SECOND AMENDED COMPLAINT UNDER CERCLA/STATE LAW 

TO RECOVER ENV. CLEANUP COSTS AND RELATED RELIEF 

CASE NO. I7-CV-00308-WHO 

Case 3:17-cv-00308-WHO Document 67 Filed 10/05/17 Page 28 of 28