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P <br /> Ron Rowe <br /> Registered Environmental Specialist <br /> February 2, 2000 <br /> Page 11 <br /> This was a conclusory statement with no factual basis. First, if there were any <br /> basis for liability, it would be the liability of the limited partnership. However, Parmaceast <br /> dissolved in 1976. Neither of the general partners individually owned the Property or any of the <br /> improvements. Second, Del Monte's claim avoids the problem ofproving that the release <br /> occurred during Parmaceast's ownership. There is ample evidence that the release likely i <br /> occurred during Del Monte's ownership or during the tank removal activities undertaken by Del <br /> Monte. There is no proof that it occurred before April, 1976. <br /> The SWRCB Guidance established that there must be a "reasonable basis to <br /> conclude that an unauthorized release occurred during or prior to the time that the person was <br /> an owner, operator, or otherwise had control of the tank or Property. " The SWRCB Guidance <br /> continues to define "reasonable basis:" "A reasonable basis does not include the mere fact <br /> that a person owned, operated or controlled the tank or Property at sometime in the past <br /> without evidence that the release occurred during or prior to that person's ownership, <br /> operation, or control of the Property or tank." Thus, Del Monte's proof fails at the inception <br /> since is has not yet established by any actual evidence (not innuendo) that a release occurred <br /> before April, 1976 As a separate failure ofproof, even ifsuch evidence was produced, there is <br /> no evidence that Parmaceast owned, controlled or operated the USTs at any time during <br /> Parmaceast's ownership of the Property. <br /> 4) Del Monte never operated the service station at the Disco Site. <br /> This is self-serving and evasive. First, Del Monte has admitted that it pumped <br /> fuel out of the USTs during its ownership, and this alone could account for an unauthorized <br /> release. Del Monte failed to reveal these facts in its prior offer ofproof. Del Monte's statement <br /> is also coy in failing to account for the 9 year span during which the USTs were maintained on <br /> the Property with Del Monte's full knowledge. No details are provided about what was done i <br /> with these improvements during that period, and why they were retained although regulatory `( <br /> requirements and safety concerns in the early 1980s suggested that unused USTs should be <br /> promptly closed. Furthermore, the wording of this assertion does not account for what Calpack <br /> or any other party in possession of the Property did during those nine years. Recent data <br /> indicates that it is likely that Del Monte did use the tanks for the storage ofgasoline, or that <br /> vehicles stored in the vicinity released gasoline. <br /> It is also worthwhile to note that Del Monte made its offer of proof in late 1994, without <br /> permitting the Prior Owners to offer up any opposition to such "evidence." This was a conscious <br /> decision: this "proof' was being offered at the very time that Del Monte was approaching Warren <br /> Simmons with its claims of liability, yet he was not notified of the proceedings or given any <br /> opportunity to participate. If the Prior Owners had been given an opportunity to intervene and <br /> address the evidence, the superficial nature of such evidence would have been far more apparent. <br /> 761778.3 <br />