SITE INFORMATION AND CORRESPONDENCE_FILE 1

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03/18./96 11:30 UST CLEANUP FUND 912094640138 N0.910 1?03 %../ / George Lockwood State Water Resources Control Board January 26, 1996 Page 2 'RECKLESS ACTS" The first and most. troubling comment made in your Payment Summary is that: The release appears to be from a UST but it also appears to be the result of a reckless act by the claimant's contractor_ Apparently,the tank tester used a helium pressurized test for tank testing compliance and resulted in the loss of 1200 gal of product_ Section 2810.3 does not allow for reimbursement of corrective action for reckless acts of a contractor. Califtwitia Code of Regulations, TiT'LE 23. WATERS, Section 2810.3, states in relevant part as follows: Notwithstanding any other provision of this Article, corrective action costs and third patty compensation claim costs which are occasioned by or result from the gross negligence or the intentional or reckless acts of the claimant or the agents, servants, employees or representatives of the claimant, are not eligible for reinrbursetnent from the Fund. To put it kindly, there is no basis in law or fact, let alone any "appearan.ce," to suggest that the cause of the leak from the UST at the Langston' property was the result of either gross negligence or intentional or reckless acts. It is disturbing that such an allegation would be made as a rationale to deny reimbursement on the Langstone;claim. Further, the fund did not make such a determination, or even raise this issue, when processing the Langstons' first Reitntnursement Request. One wonders why the UST CFS in general and you in particular are raising this issue at this time, after the LOA has fully authorized excavation in this case. if this issue were to be raised at all, it should have been raised in response to the Langstone letter of December 24, 1444, wherein the Langston explained that the next phase of the work at the site would be excavation and requested an attended letter of commitment. A copy of that letter is in your files, is included in the second Reirnbutsetneat Request documents at Tab 3 of Volume 1, and is also attached hereto as Exhibit "A". The issue of"reckless behavior" is a non-issue. The Langston;'troubles were the subject of extensive litigation. At no time during thatt litigation did any patty allege or try to prove that any other patty was guilty of reckless behavior or gross negligence. Simple negligence was alleged on all sides, but as you surely know fram your invocation of Section 2810.3, there i, a quantum leap front simple negligence to reckless behavior, and only leaks caused by reckless behavior are excluded from coverage. In any event,the State has been aware for many months of the facts of the lnatter of Lei sg t_on v ITTS, et al,. If the USTCP believed that reimbursement was not authorized because the leak