Judge declines to dismiss lawsuit alleging pollution
Silveira, Catholic Charities claim toxic leaks on land
After years of litigation, a Marin judge declined to dismiss a lawsuit over alleged contamination on farmland and church-owned property in northern San Rafael.
The ruling is a win for Silveira Ranch and Catholic Charities of San Francisco, which sued the current and former owners of the Marinwood Plaza shopping center near Highway 101. The plaintiffs are seeking damages and relief for alleged PCE discharges into the ranch and the St. Vincent’s School for Boys.
Meanwhile, the San Francisco
Bay Regional Water Quality Control Board is doing its own investigation in connection with the contaminant PCE, or tetrachloroethylene, which was first discovered in the neighborhood in 2007. The state agency opened its case in 2008 and has since issued several work orders for site cleanup and notices of violation.
The contaminant came from the former Prosperity Cleaners dry-cleaning business, which used a chemical cleaning fluid since before 1974 until 2005, according to the water board. PCE was found in soil, soil vapor and
“This issue has been dragging out for far too long. My patience is running thin.”
— Supervisor Damon Connolly
groundwater in the area of the 5-acre Marinwood Plaza.
Since then, the toxin has traveled offsite approximately 2,900 feet, according to the water board. It has made its way under Highway 101 and to Silveira Ranch, east of the shopping center, and to property owned by Catholic Charities, where St. Vincent’s School for Boys is situated.
The water board ordered a site cleanup in 2014. That order was amended in 2018 to include a deadline of February 2027 for groundwater cleanup.
The owners, Marinwood Plaza LLC, and former owners Hoytt Enterprises Inc., did remove 510 tons of soil and 5,105 gallons of groundwater, the water board said. But they haven’t completed the project and have failed to meet several deadlines, including completion of soil vapor remediation, which was due last March.
“We had expected the owner to start the cleanup expeditiously to meet the 2027 completion date. That did not happen,” said Ralph Lambert, an engineering geologist with the water board. The board then issued a consolidated work order in November imposing a start date of June 30.
A progress report due in January was not received. The board also has issued several notices of violation, which could carry an administrative penalty of up to $1,000 per day, according to the water board.
The case is now under investigation by the enforcement team, said Cleet Carlton of the water board’s enforcement division. The agency has been notified that the property owners are negotiating a contract with a consultant to get started on the project, he said.
Cleanup activists have been attending nearly every water board meeting to urge the agency to enforce deadlines and penalties.
“The previous work order was supposed to have the buildings destroyed, the site cleaned up and a report by March,” said Bill McNicholas, a Marinwood resident who has been following the issue. “It never happened. The water district may be threatening with fines, but we want to know, when are you going to take action?”
Marin County Supervisor Damon Connolly said he’s been working with the residents to keep the issue front and center at the water board.
“This issue has been dragging out for far too long,” he said. “My patience is running thin.”
In a court hearing Tuesday, Judge Stephen Freccero declined a summary adjudication sought by attorneys Matthew Kenefick and Mark Love, who represent Marinwood Plaza LLC and Hoytt Enterprises Inc.
Freccero said there are disputed material facts, including whether the defendants took action once the hazard was known, whether they had the ability to prevent harm and whether they had control over the common area and the dry cleaner’s shop.
In a joint statement, the attorneys for the defendant wrote, “The court made no decision on the merits, nor were all involved additional parties part of the motions or at the hearing. The case is continuing and defendants continue to deny the allegations of plaintiffs’ complaints.”
A settlement conference has been scheduled for Oct. 8. A jury trial is set for January.