SITE INFORMATION AND CORRESPONDENCE FILE 2

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David M. Boyers,Esq. November 11,2004 Page 2 on July 15,2003.1 The San Joaquin County Environmental Health Department ("SJCEHD')issued the May 21,2003 Unauthorized Release(Leak)/Contamination Site Report to document the Tracer test results. Both of these documents should also be in the SJCEHD's files. October 14,2004 Letter Bingham McCuichan LLP Your October 14,2004 letter indicates that Palisades has also requested,m a July 28, bingham.com 2004 letter to the Board,that the Board supplement the Record with a well inspection report conducted by Stratus Environmental,Inc.("Stratus Environmental')dated April 30,2004(the"Stratus Report'). ExxonMobil opposes Palisades'request to supplement the Record with the Stratus Report and,in turn,asks that the Board exclude the Stratus Report and Palisades'July 28,2004 letter,which discusses this report's findings. The Stratus Report and Palisades'July 28, 2004 letter were not submitted in a timely fashion. Pursuant to Title 23,California Code of Regulations section 2050.6(a)(1),a request to supplement the administrative record should be"provided at the time the petition is filed,or as soon as the evidence becomes available thereafter." Cal.Code Regs.tit.23, §2050.6(axl). Here,the SJCEHD issued the Notice of Responsibility to Palisades in February 2003,and Palisades filed its petition with the Board in March 2003. Yet,it was not until well over a year later that Palisades conducted the well inspection and submitted the results to the Board. Notably,this is well past the time period in which the Board ordinarily reviews petitions. Cal.Code Regs.tit.23, §2050.5(b)(stating that the"state board shall review and act on the petition within 270 days"). Certainly,this evidence could have"become available"to Palisades before this time and indeed should have,given the time period set forth in the regulations for Board action. Consequently,the Stratus Report and Palisades'July 28,2004 letter were not submitted in a timely fashion. Moreover,Palisades waited three months after the completion of the Stratus Report before even requesting to supplement the record with this information. This too was not timely. For these reasons,the Board should exclude or,in the alternative,disregard the Stratus Report and Palisades'July 28,2004 letter. Second,the Stratus Report is the result of an improper investigation. The wells installed and monitored on Palisades'property(the"Site")belong solely to ExxonMobil. Accordingly,no party may access these wells without ExxonMobil's permission. To do otherwise not only violates ExxonMobil's property rights but further goes against standard industry practices,which require advance notice and an opportunity to 1 A true and correct copy of the Tracer test was inadvertently omitted from Exhibit 5 to the Declaration of Ted Moise submitted with ExxonMobil's July 15,2003 response to Palisades'petition in this matter. uv4o276M.2 X