California Department of Toxic Substance Control et al v. American Honda Motor Co Inc et al

Filing 16

THIRD PARTIAL CONSENT DECRREE entered into by and among the Plaintiffs, the State of California Deoxic Substances Control and the California Toxic Subsstances Control Account and the Settling Defendants. This Third Consent Decree obligates the Settling Defendants to perform the Work set forth in Paragraph 4.1 herein, to pay certain costs, and to receive certain covenants with respect thereto. (SEE DOCUMENT FOR SPECIFICS). by Judge Dean D. Pregerson ( MD JS-6. Case Terminated ) (lc)

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KAMALA D. HARRIS
Attorney General of California
JAMES R. POTTER, State Bar No. 166992
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]

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Attorneys for Plaintiffs

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CALIFORNIA DEPARTMENT OF
TOXIC SUBSTANCES CONTROL AND
THE CALIFORNIA TOXIC
SUBSTANCES CONTROL ACCOUNT,

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Plaintiffs,
v.
AMERICAN HONDA MOTOR CO.,
INC.; AMERON INTERNATIONAL
CORPORATION; ANADARKO E&P
ONSHORE LLC; ASHLAND
CHEMICAL COMPANY; ATLANTIC
RICHFIELD COMPANY; AZUSA
LAND RECLAMATION, INC.; BAKER
HUGHES OILFIELD OPERATIONS,
INC.; BAKER PETROLITE
CORPORATION; BAYER
CROPSCIENCE INC.; BIG HEART PET
BRANDS; THE BOEING COMPANY;
CHEMICAL WASTE MANAGEMENT,
INC.; CHEVRON ENVIRONMENTAL
MANAGEMENT COMPANY;
CHEVRON MARINE LLC; CITY OF
LOS ANGELES, ACTING BY AND
THROUGH THE LOS ANGELES
DEPARTMENT OF WATER AND
POWER; CONOCOPHILLIPS
COMPANY; CROSBY & OVERTON,
INC.; THE DOW CHEMICAL
COMPANY; DUCOMMUN
AEROSTRUCTURES, INC.; ESSEX
CHEMICAL CORPORATION; EXXON

No. 2:15-cv-00729-DDP-AJW
THIRD PARTIAL CONSENT
DECREE

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MOBIL CORPORATION; FILTROL
CORPORATION; GEMINI
INDUSTRIES, INC.; GENERAL
DYNAMICS CORPORATION;
GENERAL LATEX AND CHEMICAL
CORPORATION; HEWLETTPACKARD COMPANY; HONEYWELL
INTERNATIONAL INC.; HUGO NEUPROLER; HUNTINGTON BEACH
COMPANY; LOCKHEED MARTIN
CORPORATION; MARS, INC.;
MORTELL COMPANY; MORTON
INTERNATIONAL, INC.; NATIONAL
STEEL AND SHIPBUILDING
COMPANY; NORTHROP GRUMMAN
SYSTEMS CORPORATION; THE
PROCTER & GAMBLE
MANUFACTURING COMPANY;
QUEMETCO, INC.; RAYTHEON
COMPANY; ROCKWELL
AUTOMATION, INC.; ROHM AND
HAAS COMPANY; ROHR, INC.; SAN
DIEGO GAS & ELECTRIC COMPANY;
SHELL OIL COMPANY; SOUTHERN
CALIFORNIA GAS COMPANY;
SOUTHERN CALIFORNIA EDISON
COMPANY; UNION CARBIDE
CORPORATION; UNION PACIFIC
RAILROAD; UNISYS CORPORATION;
UNITED STATES STEEL
CORPORATION; UNITED
TECHNOLOGIES CORPORATION;
UNIVAR USA INC.; USA WASTE OF
CALIFORNIA, INC.; VIGOR
SHIPYARDS, INC.; WASTE
MANAGEMENT COLLECTION AND
RECYCLING, INC.; WASTE
MANAGEMENT OF CALIFORNIA,
INC.; WASTE MANAGEMENT
RECYCLING AND DISPOSAL
SERVICES OF CALIFORNIA, INC.;
WESTERN WASTE INDUSTRIES; AND
XEROX CORPORATION.

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Defendants.

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THIRD PARTIAL CONSENT DECREE
This Third Partial Consent Decree (“Third Consent Decree”) is made and
entered into by and among the Plaintiffs, the State of California Department of
Toxic Substances Control (“DTSC”) and the California Toxic Substances Control
Account (collectively, the “Plaintiffs”), and the Settling Defendants, identified in
Exhibits E-1, E-2 and E-3 of this Third Consent Decree (“Settling Defendants”),
(collectively, the “Parties”). This Third Consent Decree obligates the Settling
Defendants to perform the Work set forth in Paragraph 4.1 herein, to pay certain
costs, and to receive certain covenants with respect thereto. The Work pertains to
the 583-acre landfill facility located at 2210 South Azusa Avenue, West Covina,
Los Angeles County, California 91792 (the “BKK Facility”).
INTRODUCTION
On October 31, 2005, Plaintiffs filed a complaint (“First Complaint”) against
certain of the Settling Defendants alleging liability for response costs at the Subject
Property and seeking (1) recovery of past costs pursuant to section 107 of the
Comprehensive Environmental Response Compensation Liability Act,
(“CERCLA”), 42 U.S.C. § 9607(a); (2) declaratory relief pursuant to section
113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2); and (3) injunctive relief pursuant
to California Health and Safety Code section 25358.3(e). California Department
of Toxic Substances Control, et. al. v. American Honda Motor Co., Inc., et. al., No.
CV-05-7746 (C.D. Cal. October 31, 2005). On March 9, 2006, the Court entered
an Amended Consent Decree (“Amended First Consent Decree”), which subject to
the covenants, conditions and reservations of rights therein, resolved the claims
asserted in the First Complaint. The Amended First Consent Decree became
effective on March 9, 2006, and included a two-year work requirement, which was
extended nine times; the final extension expired on August 10, 2010.

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On May 10, 2010, Plaintiffs filed a second complaint in this Court against all
but two of the settling defendants to the Amended First Consent Decree and
against certain other of the Settling Defendants herein, who were not parties to the
Amended First Consent Decree (the “Second Complaint”). California Department
of Toxic Substances Control, et. al. v. American Honda Motor Co., Inc., et. al., No.
CV-10-03378 (C.D. Cal. May 10, 2010). The allegations of the Second Complaint
were essentially identical to the allegations of the First Complaint. On August 10,
2010, the Court entered a Second Consent Decree (“Second Consent Decree”),
which subject to the covenants, conditions and reservations of rights therein,
resolved the claims of asserted in the Second Complaint. The Second Consent
Decree became effective on August 10, 2010; the parties thereto expect work under
the Second Consent Decree to continue into 2016.
DTSC is now filing a new complaint (the “Third Complaint”) with the Court
and is concurrently lodging this Third Consent Decree. Like the previous
Complaints, the Third Complaint seeks recovery of costs and the performance of
certain response actions pursuant to section 107 of CERCLA, and California
Health and Safety Code section 25358.3(e), in connection with alleged releases of
hazardous substances into the environment at and from the Class I Landfill. This
Third Consent Decree requires the Settling Defendants to perform a groundwater
Remedial Investigation and Feasibility Study (“RI/FS”) for the Class I Landfill
Investigation Area operable unit and to perform other activities as set forth in
Paragraph 4.1 herein. Subject to the covenants, conditions and reservations of
rights in this Third Consent Decree, this Third Consent Decree resolves the claims
asserted in the Third Complaint.
Plaintiffs and Settling Defendants agree, and this Court by entering this Third
Consent Decree finds, that this Third Consent Decree has been negotiated by the
Parties in good faith and that settlement of this matter and entry of this Third

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Consent Decree is intended to avoid prolonged and complicated litigation between
the Parties, is the most appropriate means to continue to address conditions at the
Subject Property, and is fair, reasonable and in the public interest.

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NOW, THEREFORE, with the consent of the Parties to this Third Consent
Decree, it is hereby ORDERED, ADJUDGED AND DECREED:
I.

1.1

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This Third Consent Decree is entered into by the Parties pursuant to

the Plaintiffs’ authority under section 107 of CERCLA, 42 U.S.C. § 9607, and
California Health and Safety Code sections 25356.1 and 25358.3(e).

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JURISDICTION

1.2

The Court has jurisdiction over the subject matter of this action

pursuant to 28 U.S.C. § 1331 and CERCLA, 42 U.S.C. § 9601 et seq., and
supplemental jurisdiction over claims arising under the laws of the State of
California pursuant to 28 U.S.C. § 1367(a). The Parties waive all objections and
defenses they may have to the jurisdiction of the Court to approve, enter, and
enforce this Third Consent Decree and to venue in this District.
II.

BACKGROUND
2.1

This Third Consent Decree relates to the BKK Facility in West

Covina, Los Angeles County, California. The BKK Facility contains a closed
Class I hazardous waste landfill, a closed Class III municipal landfill, and related
facilities. A map and a legal description of the BKK Facility are attached as
Exhibits A-1 and A-2, respectively. Non-party BKK Corporation (“BKK Corp.”)
owns the portion of the BKK Facility that is commonly described as Parcel 3,
which includes the Class I and Class III Landfills. Non-party City of West Covina
and private non-parties own the balance of the BKK Facility, which is commonly
described as Parcels 1 and 2. This Third Consent Decree obligates the Settling
Defendants to perform certain work and to pay certain costs with respect to the

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Subject Property including actions and costs in response to groundwater
contamination from the Class I Landfill Investigation Area.
2.2

Regulatory Status. On Parcel 3, BKK Corp. is the owner and operator

of the following: (a) the closed Class I Landfill; (b) the closed Class III Landfill;
and (c) the operating Leachate Treatment Plant (“LTP”). Post-closure operation,
maintenance and monitoring of the Class I Landfill, and operation of the LTP, are
primarily regulated pursuant to the California Hazardous Waste Control Act
(“HWCL”), beginning at California Health & Safety Code section 25100, the
Resource Conservation and Recovery Act (“RCRA”), beginning at 42 U.S.C. §
6901, and their implementing regulations.
2.3

On or about October 18, 2004, BKK Corp. notified DTSC that BKK

Corp. lacked the financial resources to continue to perform post-closure care of the
Class I Landfill required by RCRA and the HWCL, or to operate the LTP, after
November 17, 2004. As a result, DTSC hired a contractor to conduct emergency
response activities at the BKK Facility beginning on November 18, 2004. These
activities were and continue to be necessary to ensure continuous maintenance and
operation of systems that are essential to protect public health, safety and the
environment.
2.4

On December 2, 2004, DTSC issued an Imminent and Substantial

Endangerment Determination and Order and Remedial Action Order, Docket No.
I/SE-D-04/05-004 (“ISE Order”), to BKK Corp. and 50 other respondents who are
alleged to have disposed of waste at the Class I Landfill or to be prior owners or
operators of the BKK Facility that includes the Class I Landfill. The ISE Order
required the respondents in that Order to perform certain response actions and to
reimburse DTSC for certain response costs. Certain Settling Defendants were
named as respondents in the ISE Order.

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2.5

The payment of Future DTSC Oversight Costs relating to the

performance and oversight of the Work to be performed pursuant to this Third
Consent Decree by the Settling Defendants to Plaintiffs constitute necessary costs
of response as that term is defined in section 101(25) of CERCLA, 42 U.S.C. §
9601(25).
2.6

Unless explicitly stated otherwise herein, this Third Consent Decree

does not in any way amend the First or Second Consent Decrees or alter any
parties’ rights or obligations under the First or Second Consent Decrees.
2.7

Pursuant to this Third Consent Decree, the Settling Defendants will

conduct the Work related to the Subject Property and the Class I Landfill
Investigation Area, as specified in paragraph 4.1 of this Third Consent Decree, and
will pay for certain costs and receive certain covenants and protections as set forth
herein.
2.8

New Settling Defendants. In both the Second and Third Consent

Decrees there are Settling Defendants who were not parties to the prior Consent
Decrees.
2.8.1 The Settling Defendants named as Settling Defendants in the
Second and Third Consent Decrees but not in the Amended First Consent Decree
are identified in Exhibit E-2. By entering this Consent Decree, the Court finds that
those Settling Defendants are entitled to the benefit of the covenant not to sue in
paragraph 7.1 of the Amended First Consent Decree and the contribution
protection of paragraph 8.1 of the Amended First Consent Decree, subject to all of
the limitations specified therein. This provision is effective on the Effective Date
of this Third Consent Decree.
2.8.2 The Settling Defendants named in this Third Consent Decree
who were not previously named in either the Amended First Consent Decree or the
Second Consent Decree are identified in Exhibit E-3. By entering this Consent

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Decree, the Court finds that these new Settling Defendants are entitled to the
benefit of the covenants not to sue in paragraph 7.1 of the Amended First Consent
Decree and paragraph 7.1 of the Second Consent Decree and the contribution
protection of paragraph 8.1 of the Amended First Consent Decree and paragraph
8.1 of the Second Consent Decree, subject to all of the limitations specified in
those Consent Decrees and further subject to Paragraph 7.4 below.

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2.9

No Admissions. By entering into this Third Consent Decree or by

taking any action in accordance with its provisions, each Settling Defendant does
not admit any allegations, findings, determinations or conclusions contained in the
ISE Order, the First, Second or Third Complaints, the Amended First Consent
Decree, the Second Consent Decree, or this Third Consent Decree, including
without limitation that it sent, transported or arranged for disposal of any
hazardous substances to or at the Class I Landfill, or that it owned or operated the
BKK Facility that includes the Class I Landfill, and does not admit any liability
with respect to the BKK Facility. Nothing in this Third Consent Decree shall be
construed as an admission by any Settling Defendant of any issue of law or fact.
Except as specifically provided for herein, nothing in this Third Consent Decree
shall prejudice, waive, or impair any right, remedy, or defense that each Settling
Defendant may have against any entity. Each Settling Defendant agrees to comply
with and be bound by the terms of this Third Consent Decree and further agrees
that it will not contest the basis or validity of this Third Consent Decree in any
action to enforce it.
III.

DEFINITIONS
3.1

Unless otherwise expressly provided herein, terms used in this

Consent Decree that are defined in CERCLA or in regulations promulgated under
CERCLA shall have the meaning assigned to them therein. Whenever terms listed

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below are used in this Third Consent Decree or in any attachments or exhibits
hereto, the following definitions shall apply:
3.2

“Class I Landfill” means the closed Class I hazardous waste landfill

located at 2210 South Azusa Avenue, West Covina, Los Angeles County,
California 91792 that is shown on the map that is attached as Exhibit A-1.
3.3

“Class I Landfill Investigation Area” includes, for the purposes of this

Third Consent Decree and the Groundwater RI/FS only, the Class I Landfill and
Class I Landfill operation areas, including but not limited to “Trash Island” located
on the north side of the landfill; the Leachate Treatment Plant (“LTP”); Barrier 1;
the upper detention basin below the LTP; liquid piping and other liquid collection
and conveyance systems associated with the Class I Landfill; the fueling station,
and the truck wash and wherever hazardous substances from such areas have or
may come to be located.
3.4

“Class III Landfill” shall mean the closed municipal landfill also

located at 2210 South Azusa Avenue, West Covina, Los Angeles County,
California 91792, which is shown on the map in Exhibit A-1.
3.5

“Day” shall mean a calendar day unless expressly stated to be a

working day. “Working Day” shall mean a day other than a Saturday, Sunday, or
state or federal holiday. In computing any period of time under this Third Consent
Decree, where the last day would fall on a Saturday, Sunday, or state or Federal
holiday, the period shall run until the close of business of the next Working Day.
3.6

“BKK Facility” shall mean the 583-acre landfill facility located at

2210 South Azusa Avenue, West Covina, California and described in Exhibits A-1
and A-2. The BKK Facility contains a closed Class I hazardous waste landfill, a
closed Class III municipal landfill, the Leachate Treatment Plant as defined herein,
and related facilities such as infrastructure, systems and equipment. The term

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“BKK Facility” shall also include areas contiguous to the landfill facility where
hazardous substances emanating from the Landfills have come to be located.
3.7

“Future DTSC Oversight Costs” shall mean all direct and indirect

costs of overseeing this Third Consent Decree, including but not limited to payroll
costs, travel costs, and laboratory costs, incurred by DTSC in reviewing, revising,
modifying, commenting on or approving plans, reports and other items pursuant to
this Third Consent Decree, and monitoring and verifying the Work performed
pursuant to this Third Consent Decree.
3.8

“Hazardous Substances” shall have the meaning set forth in CERCLA

section 101(14), 42 U.S.C. § 9601(14).
3.9

“Leachate Treatment Plant” (or “LTP”) means the leachate treatment

plant that is located on the BKK Facility.
3.10

“National Contingency Plan” or “NCP” shall refer to the National Oil

and Hazardous Substances Pollution Contingency Plan promulgated pursuant to
section 105 of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300.
3.11 “Parties” shall mean Plaintiffs and the Settling Defendants.
3.12 “Plaintiffs” shall mean the California Department of Toxic Substances
Control and the California Toxic Substances Control Account including its
predecessor accounts specified in Health and Safety Code section 25173.6(g), to
the extent that funds from those accounts have been, or will be expended on behalf
of DTSC at the BKK Facility.
3.13 “Settling Defendants” shall mean the parties identified in Exhibits E1, E-2, and E-3 to this Third Consent Decree. For purposes of Paragraph 2.9 and
Sections VII and VIII of this Third Consent Decree, “Settling Defendants” also
shall mean Defendants’ corporate predecessors-in-interest, successors-in-interest
and affiliated companies identified in Exhibit G.

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3.14 “Subject Property” shall mean the Class I Landfill, the LTP, service
roads and related pollution control equipment located at 2210 South Azusa
Avenue, West Covina, Los Angeles County, California 91792.

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3.15 “Tolling Termination Date” shall mean the date upon which the
Tolling Agreement provided for in Paragraph 7.11 terminates. The Tolling
Termination Date shall be the earlier of: (a) sixty (60) days after a Party gives
written notice of the intent to terminate the tolling period or (b) the conclusion of
the Work Period.

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3.16

Effective Date and ending thirty days (30) after DTSC’s approval of the RI/FS
required by Paragraph 4.1.3.

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“Work Period” shall mean the period of time commencing with the

3.17 “Work” shall mean the Work to Be Performed as specified in
Paragraph 4.1 of this Third Consent Decree.

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IV.

SETTLING DEFENDANTS’ WORK TO BE PERFORMED AND OTHER
OBLIGATIONS
4.1

Work to Be Performed. Settling Defendants shall undertake the

following response actions set forth below.
4.1.1 Essential Activities. Settling Defendants shall continue to
perform the Essential Activities as specified in Exhibit C to this Third Consent
Decree until the conclusion of the Work Period. Provided Settling Defendants
perform the Essential Activities required by this Third Consent Decree including
any modifications to those Essential Activities approved by DTSC pursuant to
paragraph 4.1.9, the Settling Defendants shall be deemed to be in compliance with
Paragraph 4.1.1. of the Second Consent Decree.
4.1.2 Groundwater Monitoring. Until the conclusion of the Work
Period, the Settling Defendants shall conduct groundwater monitoring in
accordance with the Sampling and Analysis Plan, Groundwater Wells, BKK

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Landfill, West Covina, California, February 2014, the body of which is attached to
this Third Consent Decree as Exhibit B.

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4.1.3 Remedial Investigation and Feasibility Study and Statement of
Work. The Settling Defendants shall conduct a groundwater RI/FS for the Class I
Landfill Investigation Area in accordance with the Statement of Work attached to
this Third Consent Decree as Exhibit D.

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4.1.4 Work Consistent with Requirements. Subject to Paragraph 4.6
herein, Settling Defendants shall ensure all Work performed pursuant to this Third
Consent Decree is consistent with the requirements of all DTSC-approved
workplans, Chapters 6.5 (commencing with section 25100) and 6.8 (commencing
with section 25300), Division 20 of the California Health and Safety Code, and any
other applicable state or federal statutes and regulations, including without
limitation, the NCP, and applicable DTSC and U.S. Environmental Protection
Agency guidance documents.

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4.1.5 Controlling Provisions. To the extent that there is a conflict
between the language in any Exhibit and the terms in the body of this Third
Consent Decree, the terms of this Third Consent Decree shall control.

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4.1.6 Consistency with the NCP. Upon approval by DTSC of the
Work performed by Settling Defendants under this Third Consent Decree and on
receipt by DTSC of all payments required to be made pursuant to this Third
Consent Decree, the Work will be deemed consistent and in accordance with the
NCP.
4.1.7 Public Participation Activities (Community Relations). Settling
Defendants shall cooperate with and support DTSC in its efforts to provide
meaningful public participation in response actions pursuant to California Health
and Safety Code sections 25356.1 and 25358.7, DTSC’s most current Public
Participation and Policy Guidance Manual and the Public Participation Plan.

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These activities shall include, but are not limited to, assisting in the development
and distribution of fact sheets; participation in public meetings; and the
development and publishing of public notices.

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4.1.8 Quality Assurance and Health and Safety Plans. No less than
thirty (30) days before changing any onsite activities that require amending the
Quality Assurance Project Plan or Health and Safety Plan, Settling Defendants
shall submit proposed amendments to those plans. Any amendments to the Quality
Assurance Project Plan shall require DTSC approval.

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4.1.9 Amendments to the Essential Activities and Groundwater
Monitoring Plans. Settling Defendants may at any time propose amendments to
the Essential Activities or the Groundwater Monitoring Plans required by
Paragraphs 4.1.1 and 4.1.2 respectively. Any such proposal shall be clearly labeled
as a proposed amendment. Any proposed amendment will not take effect until
approved by DTSC, at which time it will be effective on the terms specified in
DTSC’s approval.
4.2

California Environmental Quality Act. Upon DTSC’s request,

Settling Defendants shall submit any non-privileged information deemed necessary
by DTSC to facilitate DTSC’s compliance with the California Environmental
Quality Act, California Public Resources Code sections 21000 et seq.
4.3

Stop Work Order. In the event that DTSC determines that any

activity (whether or not pursued in compliance with this Third Consent Decree)
conducted by Settling Defendants may pose an imminent or substantial
endangerment to the health or safety of people or to the environment, DTSC may
order Settling Defendants to stop further implementation of any aspect of this
Third Consent Decree for such period of time needed to abate the endangerment.
In addition, in the event that DTSC determines that any of Settling Defendants’
activities (whether or not pursued in compliance with this Third Consent Decree)

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areproceeding without DTSC authorization, DTSC may order Settling Defendants
to stop further implementation of such activity for such period of time needed to
obtain DTSC authorization, if such authorization is appropriate. Any deadline in
this Third Consent Decree directly affected by a Stop Work Order, issued pursuant
to this Paragraph, shall be extended for the term of the Stop Work Order.
4.4

Emergency Response Action/Notification. In the event of any

occurrence, event, or condition that arises at the Subject Property during the Work
Period of this Third Consent Decree that constitutes a material change, that
represents an emergency (including, but not limited to, fire, earthquake, explosion,
landslide, or imminent or immediate human exposure to a hazardous substance
caused by the release or threatened release of a hazardous substance), and that
presents a risk to public health, safety, or the environment, Settling Defendants
shall immediately take all appropriate actions to respond to that emergency. The
Settling Defendants shall also immediately notify the DTSC Project Coordinator
(as defined in Paragraph 10.1 herein) and all other appropriate and applicable
regulatory agencies of the occurrence, event, or condition and of the steps the
Settling Defendants have taken and propose to take in response thereto. The
Settling Defendants shall comply with any mandatory notification requirements
and with the procedures outlined in the Emergency Response Plan and Diagrams
that the Settling Defendants submitted to DTSC on or about November 21, 2008 or
any subsequent revisions of those documents submitted to and approved by DTSC.
Any action taken by the Settling Defendants shall be performed in consultation
with the DTSC Project Coordinator and in accordance with all applicable
provisions of this Third Consent Decree. Within seven (7) days of the onset of
such an occurrence, event, or condition, Settling Defendants shall furnish a report
to DTSC, signed by Settling Defendants’ Project Coordinator, setting forth the
occurrence, event, or condition that occurred and the measures taken in the

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response thereto. In the event that Settling Defendants fail to take appropriate
response and DTSC takes the action instead, Settling Defendants shall be subject to
liability to DTSC for all costs of the response action. In addition, the Settling
Defendants shall notify the DTSC Project Coordinator verbally within forty-eight
(48) hours and in writing within seven (7) days of any release of a hazardous
substance at the Subject Property. Nothing in this Paragraph shall be deemed to
limit any other notification requirement to which Settling Defendants may be
subject, nor any defenses that the Settling Defendants may have with respect to any
action brought by DTSC to recover the costs of the response action taken by it
pursuant to this Paragraph.
4.5

commencement of any Work under this Third Consent Decree, Settling Defendants
shall provide copies of insurance policies or other evidence satisfactory to DTSC
that demonstrates that any contractor or subcontractor hired by the Settling
Defendants to implement the Work pursuant to this Third Consent Decree has
secured the insurance listed in items (a) through (e) below. Settling Defendants
shall ensure the required insurance remains in force during the Work Period of this
Third Consent Decree.

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(a)

(b)

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automotive liability insurance with combined single limits of at

least $2 million per accident;

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Commercial general liability insurance with a combined single

limit of at least $1 million per occurrence;

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Settling Defendants’ Insurance. At least seven (7) days prior to

(c)

workers’ compensation and employers’ liability coverage of at

least $1 million for employees engaged in the implementation of this Consent
Decree;
(d)

pollution liability insurance with a combined single limit of at

least $1 million per occurrence; and

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(e)

excess/umbrella liability coverage in the aggregate amount of at

least $10 million.
4.6

Owner/Operator Status. The Plaintiffs agree, and by entering this

Consent Decree the Court finds, that the Settling Defendants shall not be
considered owners or operators of the BKK Facility, or arrangers for disposal or
treatment of waste at the BKK Facility solely as a result of their performance of the
Work under this Consent Decree or the Amended First or Second Consent Decree.
BKK Corp. is the current owner and operator of the Subject Property and operator
of the BKK Facility. Nothing in this Consent Decree shall relieve BKK Corp. of
its statutory and regulatory obligations as the owner/operator of the Subject
Property and operator of the BKK Facility, or require Settling Defendants to
assume those obligations, including compliance with all applicable laws and
permits with respect to the landfills, signing manifests for waste generated at the
LTP, public notices under California Health and Safety Code sections 25249.525249.13 and other reporting obligations that are the responsibility of BKK Corp.
as the owner and operator of the Subject Property, and operator of the BKK
Facility.
4.7

Payment of Future DTSC Oversight Costs.
4.7.1 During the Work Period of this Third Consent Decree, and

while the Second Consent Decree is still in effect, the Settling Defendants shall
reimburse DTSC for Future DTSC Oversight Costs incurred to oversee the
activities of Settling Defendants and their agents under the Consent Decrees, in the
sum of $75,000 per month (which Settling Defendants credit as $50,000 pursuant
to the Second Consent Decree and $25,000 pursuant to this Third Consent Decree).
Payments of $75,000 shall begin on the fifteenth day of the first full month
following the Effective Date of this Third Consent Decree. Beginning in the first
full month after the expiration of the Second Consent Decree and of any extensions

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thereof, and continuing until the end of the Work Period, the amount of monthly
reimbursement required by this paragraph will be $50,000 unless a subsequent
consent decree specifies otherwise. In the event that the payments required by this
Paragraph are not made on a timely or complete basis, Settling Defendants shall
pay interest on the unpaid balance, calculated at the rate of return earned on
investment in the Surplus Money Investment Fund pursuant to section 16475 of the
California Government Code. The interest shall accrue from the date the payment
was due, through the date of Settling Defendants’ payment. Payments of interest
under this Paragraph shall be in addition to such other remedies or sanctions
available to Plaintiffs by virtue of Settling Defendants’ failure to make timely
payments under this Paragraph. Settling Defendants shall make all payments
required by this Third Consent Decree in the manner described in Paragraph 10.16.

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4.7.2 Documentation of Future DTSC Oversight Costs. DTSC shall
continue to provide Settling Defendants with a Summary by Activity Report on a
quarterly basis, documenting the Future DTSC Oversight Costs that have been
incurred by DTSC. In the event that DTSC incurred less in Future DTSC
Oversight Costs during the previous quarter than the amount Settling Defendants
paid DTSC for that quarter, Settling Defendants shall receive a credit for any
overpayment against future payments to be made pursuant to Paragraph 4.7.1 or
pursuant to a subsequent consent decree.
V.

AGREEMENTS BY DTSC
5.1

Postclosure Insurance Reimbursement.
5.1.1 For purposes of California Code of Regulations, title 22, §§

66264.145 and 66265.145, DTSC authorizes Settling Defendants to perform
certain postclosure care of the Subject Property and the Class I Landfill
Investigation Area by conducting the Work that is related to postclosure care of the
Subject Property and the Class I Landfill Investigation Area during the Work

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Period of this Third Consent Decree. As persons authorized to perform postclosure
care of the Subject Property and the Class I Landfill Investigation Area, Settling
Defendants shall be entitled to submit a claim for reimbursement of costs incurred
in performing the Work pursuant to Paragraph 4.1 and Appendices C and D of this
Third Consent Decree from Steadfast Insurance Company Policy No. PLC
7969053-04 for postclosure care expenditures by submitting itemized bills to
DTSC pursuant to California Code of Regulations, title 22, §§ 66264.145(e) and
66265.145(d) as applicable and Exhibit F of this Third Consent Decree. Settling
Defendants shall submit the reimbursement request at the close of each annual
coverage cycle (May 31) and shall submit only one reimbursement request for each
reimbursement cycle during the period covered by this Third Consent Decree.
Provided that Settling Defendants perform the Work specified in this Third
Consent Decree for a full reimbursement cycle, they shall be entitled to
reimbursement up to the entire insurance proceeds for that reimbursement cycle
(approximately $1,340,000) minus up to $120,000 on a first priority basis. Settling
Defendants shall consolidate requests for costs incurred under the Second and
Third Consent Decrees; however, the maximum amount of that claim shall not
exceed the amount specified in the prior sentence and the claim shall not include
duplicate requests for any particular work. Where the Work Period of this Third
Consent Decree partially overlaps with an annual insurance reimbursement cycle,
the Settling Defendants shall be entitled on a first priority basis to a monthly prorata share of an amount equal to the entire insurance proceeds for that
reimbursement cycle minus up to $120,000 based on the duration of work
performed by the Settling Defendants pursuant to this Consent Decree. Settling
Defendants shall be entitled to those costs associated with the performance of work
pursuant to Paragraph 4.1 herein, and which qualify for reimbursement under
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After Settling Defendants submit their request, DTSC agrees to review each
reimbursement request within sixty (60) days of submission and, pursuant to the
California Code of Regulations, title 22, §§ 66264.145 (e) or 66265.145 (d) as
applicable, approve the reimbursement request if it meets the requirements of the
regulations and the costs are eligible postclosure expenditures. Exhibit F provides
the protocol for submittal of said requests for reimbursement.

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5.1.2 If all or part of the remaining $120,000 of the insurance
proceeds (per reimbursement cycle) is not approved for reimbursement to BKK
Corp. by DTSC, such proceeds shall be made available to reimburse the Settling
Defendants pursuant to the terms of Paragraph 5.1.1.

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5.1.3 DTSC shall not be liable for any denial of reimbursement by
Steadfast Insurance Company or its successor or by a court. DTSC agrees to
provide non-privileged information in its possession to the Settling Defendants
necessary for securing reimbursement from Steadfast as authorized pursuant to
Paragraph 5.1.
5.2

Site Coordination. DTSC and the Settling Defendants and their

attorneys agree to work with each other and all other relevant entities to achieve a
coordinated approach for all of the activities to be conducted at the BKK Facility
during the Work Period of this Third Consent Decree.
5.3

Termination of ISE Order. Within seven (7) days of entry of this

Third Consent Decree, DTSC will dismiss without prejudice the ISE Order, as
against The Boeing Company, successor to Douglas Aircraft Company; Gemini
Industries, Inc.; Lockheed Martin Corporation, successor to Lockheed California,
International Light Metals Corporation, and Martin Marietta Carbon, Inc.;
Raytheon Company, successor to Hughes Missile Systems; and Todd Pacific
Shipyards. The dismissal shall be deemed effective retroactive to the date of entry
of the Amended First Consent Decree. DTSC reserves the right to issue any other

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administrative order against Settling Defendants with respect to the BKK Facility,
in accordance with the terms of this Consent Decree.
VI.

DUE CARE/COOPERATION
6.1

Subject to Paragraph 4.6 above, the Settling Defendants shall exercise

due care in performing work under this Third Consent Decree, and shall perform
the work required by this Third Consent Decree in compliance with all applicable
local, state, and federal laws and regulations. Nothing in this Paragraph shall be
deemed to (a) relieve BKK Corp. of the obligation to comply with any local, state,
and federal laws and regulations applicable to it or permits issued to it with respect
to the Subject Property or the Class III Landfill, or (b) require Settling Defendants
to perform the obligations of BKK Corp. as owner and operator of the BKK
Facility to comply with any such laws, regulations or permits.
VII. COVENANTS NOT TO SUE AND RESERVATIONS OF RIGHTS
7.1

Plaintiffs’ Covenant Not to Sue. In consideration of the actions that

will be performed and the payments that have been and will be made by Settling
Defendants under the terms of this Third Consent Decree and subject to Paragraph
7.6 (Plaintiffs’ Reservation of Rights) of this Third Consent Decree, the Plaintiffs
covenant not to sue or take administrative action against Settling Defendants: (a)
for the Work performed pursuant to this Third Consent Decree and (b) for recovery
of Future DTSC Oversight Costs actually paid to DTSC by the Settling Defendants
pursuant to Paragraph 4.7 above.
7.2

Nothing in this Third Consent Decree shall preclude the Plaintiffs

from seeking the recovery of any response cost not recovered under this Third
Consent Decree from any entity not a party to this Third Consent Decree.
7.3

Nothing in this Third Consent Decree shall preclude the Plaintiffs

from seeking recovery from the Settling Defendants of any response costs
Plaintiffs incurred after the Work Period of this Third Consent Decree or not

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otherwise included in the Covenant Not to Sue in Paragraph 7.1 above or in
Paragraph 7.1 of the Amended First Consent Decree or the Second Consent
Decree.
7.4

The Covenant Not to Sue set forth in Paragraph 7.1 above shall take

effect upon the Effective Date of this Third Consent Decree. This Covenant Not to
Sue is conditioned upon the complete and satisfactory performance by Settling
Defendants of all obligations under this Third Consent Decree, including, but not
limited to, performance of the Work pursuant to Paragraph 4.1, and full payment of
Future DTSC Oversight Costs to the extent required by Paragraph 4.7. This
Covenant Not to Sue extends only to Settling Defendants and does not extend to
any other person or entity.
7.5

Plaintiffs’ Standstill. Except as provided in Paragraphs 4.4 and 7.6(a)

of this Third Consent Decree, the Plaintiffs agree not to take any additional
administrative or judicial actions against the Settling Defendants with respect to
the BKK Facility or Class I Landfill Investigation Area until the earlier of: (a)
fourteen (14) days after the date upon which a complaint (not including either the
complaint filed concurrently with the lodging of this Third Consent Decree or a
complaint or amended complaint in California Department of Toxic Substances
Control, et. al. v. American Honda Motor Co., Inc., et. al., No. CV-05-7746, (C.D.
Cal. October 31, 2005)) is served on any Party requiring the performance of
response actions, reimbursement of response costs, or contribution towards
response costs incurred for the BKK Facility; (b) thirty (30) days following written
notice from either DTSC or the Settling Defendants of that Party’s intent to
terminate the standstill; or (c) thirty (30) days before the Tolling Termination Date.
Plaintiffs may utilize a single letter to terminate the standstills specified in the
Second and Third Consent Decrees and the standstill specified in the Third Tolling

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Agreement, which was executed by representatives of DTSC and Settling
Defendants on or about March 1, 2013.
7.6

Plaintiffs’ Reservation of Rights. The Covenant Not to Sue set forth

in Paragraph 7.1 above does not pertain to any matters other than those expressly
specified therein. The Plaintiffs reserve, and this Third Consent Decree is without
prejudice to, all rights against Settling Defendants with respect to all other matters,
including but not limited to, the following:
(a)

claims based on a failure by Settling Defendants and their

successors or assignees to meet a requirement of or to otherwise enforce this Third
Consent Decree;
(b)

criminal liability;

(c)

liability for damages for injury to, destruction of, or loss of

natural resources, and for the costs of any natural resource damage assessment
incurred by agencies;
(d)

except as may otherwise be provided for herein, liability for

violations of local, state or federal law or regulations;
(e)

liability for any response actions at the BKK Facility not

otherwise included in Paragraph 7.1 above; including, without limitation,
implementation of any removal action recommended by the Engineering
Evaluation/Cost Analysis required by the Second Consent Decree, implementation
of any response action recommended by the Feasibility Study conducted pursuant
to this Third Consent Decree, any investigation of groundwater contamination
resulting from any area not included in the Class I Landfill Investigation Area, or
any other removal or remedial action at or connected with the BKK Facility;
(f)

liability for DTSC response costs other than those specifically

included in Paragraph 7.1 of this Third Consent Decree or in Paragraph 7.1 of the
Amended First or Second Consent Decrees;

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(g)

arising from past, present or future ownership, operation, disposal, release, or
threat of release of hazardous substances, pollutants or contaminants, at other sites
besides the BKK Facility;

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except as may otherwise be provided for herein, any liability

(h)

except as may otherwise be provided for herein, liability based

upon the Settling Defendants’ ownership or operation of the BKK Facility, or upon
the Settling Defendants’ transportation, treatment, storage, or disposal, or the
arrangement for the transportation, treatment, storage, or disposal of any hazardous
substances, pollutants or contaminants at or in connection with the BKK Facility.
7.7

Except as provided in this Third Consent Decree, nothing herein shall

limit the power and authority of DTSC or any other State agency to take, direct, or
order all actions necessary to protect public health, welfare, or the environment or
to prevent, abate, or minimize an actual or threatened release of hazardous
substances, pollutants or contaminants, or hazardous or solid waste on, at, or from
the BKK Facility including the right to issue any administrative order against the
Settling Defendants with respect to the BKK Facility not otherwise inconsistent
with the terms of this Third Consent Decree. Further, except as specifically
provided for in this Third Consent Decree, nothing herein shall prevent DTSC
from seeking legal or equitable relief to enforce the terms of this Third Consent
Decree, from taking other legal or equitable actions as it deems appropriate and
necessary, or from requiring the Settling Defendants to perform additional
activities after the end of the Work Period of this Third Consent Decree pursuant to
CERCLA, the California Health and Safety Code, the California Code of
Regulations, title 22, or any other applicable law.
7.8

Settling Defendants’ Covenant Not To Sue. In consideration of

DTSC’s Covenant Not To Sue in Paragraph 7.1 of this Third Consent Decree, the
Settling Defendants hereby covenant not to sue and not to assert any claims or

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causes of action against DTSC, its authorized officers or employees, based on any
regulatory action undertaken by DTSC with respect to the Subject Property from
January 1, 2004 through the end of the Work Period of this Third Consent Decree.
Nothing in this Paragraph precludes the Settling Defendants from pursuing any
such claim based on regulatory action undertaken by DTSC during any other
period.
7.9

Settling Defendants’ Reservation of Rights. The Covenant Not To

Sue set forth in Paragraph 7.8 and the Standstill Agreement set forth in Paragraph
7.10 do not pertain to any matters other than those specifically addressed therein
and apply only to the Plaintiffs and do not extend to any other department, agency,
board or body of the State of California. The Settling Defendants reserve, and this
Third Consent Decree is without prejudice to, all rights against the Plaintiffs with
respect to all other matters, including, but not limited to, whether any work and/or
oversight conducted by DTSC is not inconsistent with the NCP.
7.10 Settling Defendants’ Standstill. The Settling Defendants agree not to
take any judicial actions against the Plaintiffs with respect to the BKK Facility
until the earlier of: (a) fourteen (14) days after the date upon which a complaint
(not including the complaint filed concurrently with the lodging of this Third
Consent Decree or a complaint or amended complaint in California Department of
Toxic Substances Control, et. al. v. American Honda Motor Co., Inc., et. al., No.
CV-05-7746, (C.D. Cal. October 31, 2005)) is served on any Party requiring the
performance of work, reimbursement of response costs, or contribution towards
response costs incurred for the BKK Facility; (b) thirty (30) days following written
notice from either DTSC or the Settling Defendants of that Party’s intent to
terminate the standstill; or (c) thirty (30) days before the Tolling Termination Date.
Settling Defendants may utilize a single letter to terminate the standstills specified
in the Second and Third Consent Decrees and the standstill specified in the Third

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Tolling Agreement, which was executed by representatives of DTSC and Settling
Defendants on or about March 1, 2013.
7.11 Tolling Agreement. The Plaintiffs and Settling Defendants agree that
all statutes of limitations and any other statute, law, rule or principle of equity of
similar effect applicable to any rights, claims, causes of action, counterclaims,
cross-claims and defenses with respect to the BKK Facility that Settling
Defendants could assert against the Plaintiffs, or that the Plaintiffs could assert
against any of the Settling Defendants, as of the Effective Date shall be tolled for
the period between the Effective Date of this Third Consent Decree and the Tolling
Termination Date, and this tolling period shall be excluded from all computations
of any applicable period of limitations. Such potentially applicable statutes of
limitations that are tolled by this agreement include, without limitation, any
applicable time limits within which an action may be commenced against the
Plaintiffs under the provisions of the California Government Claims Act,
California Government Code sections 900-960.8.
VIII. EFFECT OF SETTLEMENT/ CONTRIBUTION PROTECTION
8.1

With regard to claims for contribution against Settling Defendants, the

Parties hereto agree, and by entering this Third Consent Decree the Court finds,
that this Third Consent Decree has been negotiated by the Parties in good faith
under the California Code of Civil Procedure section 877.6. Further, upon entry of
this Third Consent Decree, the Court finds that the Settling Defendants are entitled
to protection from contribution actions or claims as provided by CERCLA section
113(f)(2), 42 U.S.C. § 9613(f)(2), or as otherwise provided by law, including state
laws, for matters addressed in this Third Consent Decree. The matters addressed in
this Third Consent Decree are (a) the Work described herein, including but not
limited to, conducting a RI/FS as required by Paragraph 4.1.3, the Essential
Activities required by Paragraph 4.1.1, and the groundwater monitoring required

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by Paragraph 4.1.2, to the extent that such work is actually performed by or on
behalf of Settling Defendants and approved by DTSC; and (b) Future DTSC
Oversight Costs as defined in this Third Consent Decree that are paid pursuant to
Paragraph 4.7. The matters addressed in this Third Consent Decree do not include
the items specified in paragraph 7.6(e) of Plaintiffs’Reservations of Rights herein.

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8.2

rights in, or grant any cause of action to, any person not a party to this Third
Consent Decree with respect to the BKK Facility. Each of the Parties to this Third
Consent Decree expressly reserves, and this Third Consent Decree is without
prejudice to, all rights (including, but not limited to, any right to contribution,
indemnification and/or reimbursement), defenses, claims, remedies, demands, and
causes of action that each Party may have with respect to any matter, transaction,
or occurrence relating in any way to the BKK Facility against any person not a
party hereto.

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Nothing in this Third Consent Decree shall be construed to create any

8.3

The Settling Defendants agree that with respect to any suit or claim

for contribution brought by them for matters related to this Third Consent Decree - excluding any claim made against any California State entity -- they will notify
DTSC in writing at least sixty (60) days prior to the initiation of any such suit or
claim.
8.4

The Settling Defendants also agree that with respect to any suit or

claim for contribution brought against them for matters related to this Third
Consent Decree, they will notify DTSC in writing within ten (10) days of service
of the complaint on them. In addition, Settling Defendants shall notify DTSC
within ten (10) days of service or receipt of any Motion for Summary Judgment
and within ten (10) days of receipt of any order from a court setting a case for trial.
8.5

DTSC agrees that with respect to any suit or claim for contribution

brought against it for matters related to this Third Consent Decree, it will notify the

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Settling Defendants in writing within ten (10) days of service of the complaint on
it. In addition, DTSC shall notify the Settling Defendants within ten (10) days of
service or receipt of any Motion for Summary Judgment and within ten (10) days
of receipt of any order from a court setting a case for trial.

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8.6

one or more of the Plaintiffs for injunctive relief, recovery of response costs, or
other appropriate relief relating to the BKK Facility, Settling Defendants shall not
assert, and may not maintain, any defense or claim based upon the principles of
waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other
defenses based upon any contention that the claims raised by DTSC in the
subsequent proceeding were or should have been brought in the instant case.
IX.

FUTURE COOPERATION
9.1

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The Parties recognize that the Settling Defendants represent a subset

of those who may be responsible for response actions at the Subject Property. The
Parties also recognize that the Amended First Consent Decree, the Second Consent
Decree, and this Third Consent Decree represent interim steps towards more
permanent solutions to the long term operation and maintenance of the Subject
Property that may include response actions to be performed by additional
responsible parties. The Parties agree to work in good faith towards this long term
solution.
9.2

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In any subsequent administrative or judicial proceeding initiated by

Additional Potentially Responsible Parties (PRPs)
(a)

DTSC has issued notices of noncompliance to respondents to

the ISE Order who are not Parties to this Third Consent Decree. DTSC has issued
notice letters to approximately 255 entities they believe to be additional potentially
responsible parties. The Settling Defendants issued notice letters to additional
potentially responsible parties including agencies of the State of California other
than DTSC.

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(b)

documentation to DTSC in accordance with California Health and Safety Code
section 25356.1.3 concerning the potential liability of any other person with
respect to the BKK Facility, then DTSC will evaluate the information accordingly
and take such actions as deemed appropriate in DTSC’s sole discretion. These
actions may include, but are not limited to, issuing notice letters, information
requests, or final determinations of non-compliance with the ISE Order, or
commencing judicial and administrative enforcement actions, or taking no action.

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(c)

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DTSC shall work in good faith to provide the Settling

Defendants with reasonable access to those BKK Corp. documents under DTSC
control concerning waste disposal at the BKK Facility.

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If the Settling Defendants provide evidence and supporting

(d)

DTSC and the Settling Defendants shall work together in good

faith in addressing settlement issues with respect to other potentially responsible
parties at the BKK Facility. Nothing in this Third Consent Decree shall prohibit
any Party from bringing any action regarding the BKK Facility against any entity
not a Party to this Third Consent Decree or settle any such action on any terms
consistent with law.
9.3

The Parties may, by mutual written agreement, and with approval of

the Court, extend some or all of the obligations and related provisions of this Third
Consent Decree.
9.4

In the event the Parties have not already entered a fourth consent

decree by the end of the Work Period, the Settling Defendants will negotiate in
good faith regarding either a continuation of the Essential Activities and
Groundwater Monitoring required herein or a smooth transition of those activities
to DTSC.

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X.

GENERAL PROVISIONS
10.1 Project Coordinators. Settling Defendants’ Project Coordinator is

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Roberto Puga, P.G. of Project Navigator, Ltd. Settling Defendants shall promptly

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notify DTSC in writing at least seven (7) working days before any proposed

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change in the identity of the Project Coordinator. Settling Defendants shall obtain

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approval from DTSC before the new Project Coordinator performs any work under

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this Third Consent Decree. DTSC’s Project Coordinator is Dan Ziarkowski,

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Legacy Landfills Office. DTSC’s Project Coordinator will be responsible for

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overseeing Settling Defendants’ implementation of this Third Consent Decree.

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10.1.1

Each Project Coordinator shall be responsible for

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designating a person to act in her/his absence. All communications between DTSC

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and Settling Defendants concerning the Work shall be directed through the Project

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Coordinators.

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10.2 Project Engineer/Geologist. The Work performed pursuant to this

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Third Consent Decree shall be under the direction and supervision of a qualified

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professional engineer or a professional geologist in the State of California, with

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expertise in hazardous substance site management and post-closure care of

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landfills. The Settling Defendants’ Engineer/Geologists are Roberto Puga of

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Project Navigator and Andrew Barnes of Geosyntec Consultants. Settling

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Defendants shall promptly notify DTSC in writing at least seven (7) working days

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before any proposed change in the identity of either Project Engineer/Geologist.

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Settling Defendants shall obtain approval from DTSC before a new Project

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Engineer/Geologist performs any work under this Third Consent Decree.

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10.3 Monthly Summary Reports. After the end of the first month after the

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Effective Date of this Third Consent Decree, Settling Defendants shall submit to

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DTSC a Monthly Summary Report of their activities under the provisions of this

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Third Consent Decree. The reports shall be received by DTSC by the 15th day of

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each month and shall describe:

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(a)

during the previous calendar month;

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Specific actions taken by or on behalf of Settling Defendants

(b)

Actions expected to be undertaken during the current calendar

(c)

All planned activities for the next calendar month;

(d)

Any problems or anticipated problems in complying with this

month;

Third Consent Decree; and
(e)

All results of sample analyses, tests, and other data generated

under this Third Consent Decree during the previous calendar month, and any
significant findings from these data.
10.4 Quality Assurance/Quality Control. All sampling and analysis
conducted by Settling Defendants under this Third Consent Decree shall be
performed in accordance with Quality Assurance/Quality Control procedures
submitted by Settling Defendants and approved by DTSC pursuant to the Amended
First Consent Decree or this Third Consent Decree.
10.5 Submittals.
10.5.1 Each submittal and notification from Settling Defendants
required by this Third Consent Decree shall both (a) be submitted electronically to
DTSC in accordance with California Health and Safety Code section 57013 and
any regulations or policies DTSC has adopted pursuant thereto and (b) be sent
simultaneously in triplicate copy to:
Dan Ziarkowski
Legacy Landfills Office
Department of Toxic Substances Control
8810 Cal Center Drive
Sacramento, California 95826-3200
or to such other person as DTSC may identify in writing.
10.5.2 Settling Defendants shall provide to DTSC, upon request,
copies of all documents and information within their possession or control or that

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of their contractors or agents relating to post-2003 activities at the Subject Property
or Class I Landfill Investigation Area or to the implementation of this Third
Consent Decree, including, but not limited to, sampling, analysis, chain of custody
records, receipts, reports, correspondence, or other documents or information
related to the Work. This paragraph shall not require Settling Defendants to
produce any documents that they have previously produced to DTSC or that are
privileged. Nor shall this paragraph require any individual Settling Defendant to
produce any document in its possession that it has not described or provided to any
other Settling Defendant. DTSC will identify any request it issues pursuant to this
Paragraph 10.5.2 as a request made pursuant to Paragraph 10.5.2 of the Third
Consent Decree.
10.5.3 The Settling Defendants may assert that certain documents,
records and other information are privileged under the attorney-client privilege or
any other privilege recognized by federal law. If the Settling Defendants assert
such a privilege in lieu of providing documents, they shall provide the Defendants
with the following: (1) the title of the document, record, or information; (2) the
date of the document, record, or information; (3) the name and title of the author of
the document, record, or information; (4) the name and title of each addressee and
recipient; (5) a description of the contents of the document, record, or information:
and (6) the privilege asserted by Settling Defendants. However, no documents,
reports or other information created or generated pursuant to the requirements of
the Consent Decree shall be withheld on the grounds that they are privileged.
Documents subject to the protective order issued in California Department of
Toxic Substances Control, et. al. v. American Honda Motor Co., Inc., et. al., No.
CV10-03378, (C.D. Cal. June 27, 2010) are not required to be included on the
privilege log.

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10.6 Communications. All approvals and decisions of DTSC made
regarding submittals and notifications will be communicated to Settling
Defendants in writing by the DTSC Project Coordinator or his/her designee. No
informal advice, guidance, suggestions or comments by DTSC regarding reports,
plans, specifications, schedules or any other writings by Settling Defendants shall
be construed to relieve Settling Defendants of their obligation to obtain such
formal approvals as may be required by this Third Consent Decree.
10.7 DTSC Review and Approval.
10.7.1

All response actions taken pursuant to this Third Consent

Decree shall be subject to the approval of DTSC. Settling Defendants shall submit
all deliverables required by this Third Consent Decree to DTSC. DTSC shall
revise and approve or reject the deliverables within 45 days of its receipt thereof or
as soon as possible thereafter. Once the deliverables are approved by DTSC, they
shall be deemed incorporated into, and where applicable, enforceable under this
Third Consent Decree.
10.7.2

If DTSC determines that any report, plan, schedule or other

document submitted for approval pursuant to this Third Consent Decree fails to
comply with this Third Consent Decree, subject to Settling Defendants’ right to
invoke dispute resolutions pursuant to this Third Consent Decree, DTSC may:
(a)

Modify the document as deemed necessary and approve the

document as modified; or
(b)

Return comments to Settling Defendants with recommended

changes and a date by which Settling Defendants must submit to DTSC a revised
document incorporating the recommended changes.
10.8 Access for DTSC/Access to Property Owned by Others.

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10.8.1

BKK Corp., which requires BKK Corp. to provide full access to Parcel 3 of the
BKK Facility to DTSC and its consultants, contractors and designees.

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10.8.2

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10.8.3

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safety plans, laws and regulations. Settling Defendants shall provide access to data
and facilitate access to laboratories used for analyses of the samples obtained
pursuant to this Third Consent Decree at all reasonable times to employees,
contractors, and consultants of DTSC. Nothing in this Paragraph is intended or
shall be construed to limit in any way the right of entry or inspection that DTSC or
any other agency may otherwise have by operation of any law.
10.8.4

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The Settling Defendants shall also cooperate with DTSC to

provide access to any other person not a party to this Third Consent Decree as
directed by DTSC subject to applicable health and safety plans, laws and
regulations. DTSC shall work with Settling Defendants to assure that all activities
at the Subject Property and Class I Landfill Investigation Area are coordinated.

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Settling Defendants shall cooperate with DTSC to provide

DTSC with access to the Subject Property consistent with applicable health and

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For purposes of gaining access to the BKK Facility, the

Settling Defendants are deemed DTSC’s designees.

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DTSC has entered into the Right to Enter Agreement with

10.8.5

For property other than Parcel 3 of the BKK Facility to

which access is required for the implementation of this Third Consent Decree and
which is owned or controlled by persons other than Settling Defendants, Settling
Defendants shall use best efforts to secure from such persons access for Settling
Defendants, as well as for DTSC, its representatives, and contractors, as necessary
to effectuate this Third Consent Decree. For purposes of this Paragraph, “best
efforts” shall include the payment of reasonable sums of money in consideration
for access.

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10.8.6

If any access required to complete the Work is not obtained,

Settling Defendants shall promptly notify DTSC and shall include in that
notification a summary of the steps Settling Defendants have taken to gain access.
DTSC may, as it deems appropriate, assist Settling Defendants in obtaining access.
Settling Defendants shall be subject to liability for costs incurred by DTSC in
obtaining access.
10.9 Sampling, Data and Document Availability. Settling Defendants shall
permit DTSC and its authorized representatives to inspect and copy all sampling,
testing, monitoring or other data generated by Settling Defendants or on Settling
Defendants’ behalf pursuant to this Third Consent Decree. Settling Defendants
shall submit all such data upon the request of DTSC. Copies shall be provided
within seven (7) days of receipt of DTSC’s written request. DTSC will identify
any request it issues pursuant to this Paragraph 10.9 as a request made pursuant to
Paragraph 10.9 of the Third Consent Decree. Settling Defendants shall inform
DTSC at least seven (7) days in advance of all field sampling under this Third
Consent Decree, and shall allow DTSC and its authorized representatives to take
duplicates of any samples collected by Settling Defendants pursuant to this Third
Consent Decree. DTSC shall have the right to take any additional samples that
DTSC deems necessary. Upon request, DTSC shall allow Settling Defendants to
take split or duplicate samples of any samples DTSC takes as part of its oversight
of Settling Defendants’ implementation of the Work.
10.10 Work Takeover. In the event DTSC determines that Settling
Defendants have ceased implementation of any portion of the Work, are seriously
or repeatedly deficient or late in their performance of the Work, or are
implementing the Work in a manner which may cause an endangerment to human
health or the environment, DTSC may assume the performance of all or any
portion of the Work as DTSC determines necessary. Settling Defendants may

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invoke the procedures set forth in Section XIV (Dispute Resolution) to dispute
DTSC’s determination that takeover of the Work is warranted under this
Paragraph. Costs incurred by DTSC in performing the Work pursuant to this
Paragraph shall be considered response costs and shall be within the reservation of
rights of Paragraph 7.6 of this Consent Decree. Notwithstanding any other
provision of this Third Consent Decree, DTSC retains all authority and reserves all
rights to take any and all response actions authorized by law.
10.11 Record Retention. Settling Defendants shall maintain a central
depository of the data, reports, and other documents prepared pursuant to this
Third Consent Decree. All such data, reports and other non-privileged documents
generated as the result of this Third Consent Decree shall be preserved by Settling
Defendants for a minimum of ten (10) years after the conclusion of all activities
under this Consent Decree. If DTSC requests that some or all of these documents
be preserved for a longer period of time, Settling Defendants shall either comply
with that request or deliver the documents to DTSC, or permit DTSC to copy the
documents prior to destruction. Settling Defendants shall notify DTSC in writing
at least six (6) months prior to destroying any documents prepared pursuant to this
Third Consent Decree. Nothing in this paragraph waives any other document
retention requirements applicable to the Settling Defendants.
10.12 Government Liabilities. The State of California shall not be liable for
any injuries or damages to persons or property resulting from acts or omissions by
Settling Defendants, or related parties specified in Paragraph 10.21 (Parties
Bound), in carrying out activities pursuant to this Third Consent Decree, nor shall
the State of California be held as party to any contract entered into by Settling
Defendants or its agents in carrying out activities pursuant to this Third Consent
Decree.

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10.13 Extension Requests. If Settling Defendants are unable to perform any
activity or submit any document within the time required under this Third Consent
Decree, Settling Defendants may, prior to expiration of the time, request an
extension of the time in writing. The extension request shall include a justification
for the delay. All such requests shall be in advance of the date on which the
activity or document is due.
10.14 Extension Approvals. If DTSC determines that good cause exists for
an extension, it will grant the request and specify a new schedule in writing.
Settling Defendants shall comply with the new schedule incorporated in this Third
Consent Decree.
10.15 Recoverable Costs. The Parties agree, and by entering the Third
Consent Decree the Court finds, that all payments made to DTSC for Future DTSC
Oversight Costs pursuant to this Third Consent Decree have been or are being
made to reimburse DTSC for recoverable response costs as defined under
CERCLA and the California Hazardous Substances Account Act, California
Health and Safety Code Sections 25300, et seq., and were incurred by DTSC with
respect to releases or threatened releases of hazardous substances at the BKK
Facility in a manner that was not inconsistent with the NCP.
10.16 Payments. All payments made by the Settling Defendants pursuant to
this Third Consent Decree shall be made by a cashier’s or certified check made
payable to the “Department of Toxic Substances Control,” and bearing on its face
the project code for the BKK Facility (Site # 300012-00) and the docket number of
this Third Consent Decree. On each check, Settling Defendants shall state: “For
BKK Costs.” On each check, payments shall be further identified as either “BKK
DTSC Oversight Costs” or “DTSC Response Costs” and shall be sent to:

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Department of Toxic Substances Control
Accounting Office
1001 I Street, 21st floor

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P. O. Box 806
Sacramento, California 95812-0806

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A photocopy of the check shall be sent concurrently to DTSC’s Project
Coordinator.
10.17 Incorporation of Plans, Schedules and Reports. All plans, schedules,

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reports, specifications and other documents that are submitted by Settling

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Defendants pursuant to this Third Consent Decree are incorporated in this Third

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Consent Decree upon DTSC’s approval or as modified pursuant to Paragraph 10.7,

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DTSC Review and Approval, and shall be implemented by Settling Defendants.

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Any noncompliance with the documents incorporated in this Third Consent Decree

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shall be deemed a failure or refusal to comply with this Third Consent Decree.

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10.18 Modifications. Except as explicitly specified herein, this Third

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Consent Decree may only be modified in writing by mutual agreement by the

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Parties and approval of the Court.

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10.19 Time Periods. Unless otherwise specified, time periods begin from
the Effective Date of this Third Consent Decree.
10.20 Parties Bound. This Third Consent Decree applies to and is binding

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upon DTSC and its successors-in-interest and the Settling Defendants, and their

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corporate predecessors-in-interest, successors-in-interest, and affiliated companies

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identified in Exhibit G. Settling Defendants shall provide a copy of this Third

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Consent Decree to all contractors, subcontractors, laboratories, and consultants that

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are retained to conduct any work performed under this Consent Decree, within

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fifteen (15) days after (a) the Effective Date of this Third Consent Decree, or (b)

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the date of retaining their services, whichever is later. Settling Defendants shall

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condition any such contracts upon satisfactory compliance with this Third Consent

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Decree. Notwithstanding the terms of any contract, Settling Defendants are

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responsible for compliance with this Third Consent Decree and for ensuring that

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their successors-in-interest, affiliated companies identified in Exhibit G,

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employees, contractors, consultants, subcontractors, agents and attorneys comply
with this Third Consent Decree.

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10.21 Joint and Several Obligations. The obligations of the Settling
Defendants to carry out all activities and to make the payments required by this
Third Consent Decree are joint and several. In the event of failure of any one or
more Settling Defendants to conduct the Work pursuant to this Third Consent
Decree and/or to make the payments required under this Third Consent Decree, the
remaining Settling Defendants shall be responsible for such Work and for such
payments. In the event of the insolvency or other failure of any one or more
Settling Defendants to implement the requirements of this Third Consent Decree,
the remaining Settling Defendants shall complete all of the requirements.

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10.22 Change in Ownership. No change in ownership or corporate or
partnership status relating to the Subject Property shall in any way alter Settling
Defendants’ responsibility under this Consent Decree. No conveyance of title,
easement, or other interest in the Subject Property, or a portion of the Subject
Property, shall affect Settling Defendants’ obligations under this Third Consent
Decree. Unless DTSC agrees that such obligations may be transferred to a third
party, Settling Defendants shall be responsible for and liable for any failure to
carry out all activities required of Settling Defendants by the terms and conditions
of this Third Consent Decree, regardless of Settling Defendants’ use of employees,
agents, contractors, or consultants to perform any such tasks. Settling Defendants
shall provide a copy of this Third Consent Decree to any subsequent owners or
successors before ownership rights or stock or assets in a corporate acquisition are
transferred.
XI.

DELAY IN PERFORMANCE/STIPULATED PENALTIES
11.1 For each day that the Settling Defendants fail to deliver a deliverable

in a timely manner, fail to perform work of acceptable quality, or otherwise fail to

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perform the work required by this Third Consent Decree, including Exhibits C and
D, Settling Defendants shall be liable for stipulated penalties as set forth below.
Penalties begin to accrue on the day that the deliverable or performance is due, and
continue to accrue until one of the following occurs: (a) DTSC notifies Settling
Defendants that it will conduct the work; or (b) Settling Defendants submit the
deliverable or perform the work in question and DTSC determines that the
document or work is acceptable to DTSC (whichever is earlier). Payment of any
Stipulated Penalties by Settling Defendants shall be due within thirty (30) days of
receipt of a demand letter from DTSC.

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11.1.1

shall accrue in the amount of $500.00 per day, per violation, for the first seven (7)
days of noncompliance, and $750.00 per day, per violation thereafter:

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(a)

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Emergency response report as required by Paragraph 4.4.

11.1.2

For the following major deliverables or work, stipulated

penalties shall accrue in the amount of $1,000 per day, per violation, for the first
seven (7) days of noncompliance, and $2,500 per day, per violation thereafter,:

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Monthly reports as required by Paragraph 10.3; or

(b)

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For the following deliverables or work, stipulated penalties

(a)

Performance of any Essential Activity identified in Exhibit C;

(b)

Performance of the Remedial Investigation/Feasibility Study

or

identified in Exhibit D; or
(c)

Immediately notifying DTSC of an emergency or taking

immediate action to address an emergency as set forth in Paragraph 4.4. (Disputes
over the appropriate response to be taken should be resolved through the dispute
resolution provisions of this Third Consent Decree and shall not subject the
Settling Defendants to Stipulated Penalties).

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11.2 Settling Defendants may dispute DTSC’s right to the stated amount of
penalties by invoking the dispute resolution procedures under Paragraph 14.1
herein. Penalties shall accrue but need not be paid during the dispute resolution
period. If Settling Defendants do not prevail upon resolution, all penalties shall be
due to DTSC within thirty (30) days of resolution of the dispute. If Settling
Defendants prevail upon resolution, no penalties shall be paid.
11.3 These stipulated penalties provisions do not preclude DTSC from
pursuing any other legal remedies or sanctions that are available to DTSC because
of the Settling Defendants’ failure to comply with this Third Consent Decree.
Payment of stipulated penalties does not alter Settling Defendants’ obligation to
complete performance under this Third Consent Decree.
XII. PUBLIC COMMENT
12.1 This Third Consent Decree shall be subject to a public comment
period for not less than thirty (30) days after lodging with the Court. DTSC may
modify or withdraw its consent to this Third Consent Decree if comments received
disclose facts or considerations that indicate that this Third Consent Decree is
inappropriate, improper or inadequate.
XIII. EFFECTIVE DATE
13.1 The Effective Date of this Third Consent Decree shall be the date on
which it is entered by the Court.
XIV. DISPUTE RESOLUTION
14.1 Any dispute that arises between the Parties with respect to an
obligation under this Third Consent Decree shall, in the first instance, be the
subject of good faith negotiations among the Parties. The Parties agree that they
shall use their best efforts to resolve any dispute informally. In the absence of
agreement, any Party may submit the matter to the Court for resolution. The Court
shall retain jurisdiction over this matter and the parties for the purpose of

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interpreting and enforcing the terms of this Third Consent Decree, including the
resolution of any such dispute.
XV. SIGNATORIES
15.1 Each undersigned representative of the Parties to this Third Consent
Decree certifies that he or she is fully authorized to enter into the terms and
conditions of this Third Consent Decree and to execute and legally bind the Parties
to this Third Consent Decree.
15.2 This Third Consent Decree may be executed and delivered in any
number of counterparts, each of which when executed and delivered shall be
deemed to be an original, but such counterparts shall together constitute one and
the same document.

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SO ORDERED, APPROVED, SIGNED, AND ENTERED THIS 24 th of
July, 2015.

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_______________________________________
THE HONORABLE DEAN D. PREGERSON
UNITES STATES DISTRICT JUDGE

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List of Exhibits and Party Signature Pages on the Following Pages.

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EXHIBITS

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Exhibit A – Location map and legal description for the BKK Facility
Exhibit B – Sampling and Analysis Plan, Groundwater Wells (without exhibits)

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Exhibit C – Essential Activities

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Exhibit D – Statement of Work for Groundwater Remedial Investigation and
Feasibility Study

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Exhibit E – Lists of Settling Defendants

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Exhibit F – Post-closure insurance reimbursement protocol
Exhibit G – Settling Defendants’ affiliated entities