United States of America v. JPMorgan Chase N.A., et al

Filing 15

CONSENT DECREE by Judge Dean D. Pregerson: This Consent Decree shall constitute the Final Judgment between and among the United States and Settling Defendants. JPMorgan Chase Bank, N.A., on behalf of itself and all other Settling Defendants, will pay $85,000,000.00 to The California Department of Toxic Substances Control to be used for work at the Site. JPMorgan Chase Bank, N.A., on behalf of Settling Defendants,shall pay to EPA the principal amount of $1,000,000.00. (SEE DOCUMENT FOR OTHER SPECIFICS, DETAILED INSTRUCTIONS AND DEADLINES THEREIN.) (lc)

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JOHN C. CRUDEN
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice
DAVIS H. FORSYTHE (Massachusetts Bar No. 667115)
email: [e-mail]
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
999 18th Street, South Terrace, Suite 370
Denver, CO 80202
Telephone: [phone]
FAX [phone]
Attorneys for Plaintiff United States of America

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,
v.

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JPMORGAN CHASE BANK N.A.,
et al.,

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Defendants.

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10734528.1
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Case No. CV 16—8127 DDP

CONSENT DECREE

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TABLE OF CONTENTS

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I. 

BACKGROUND ............................................................................................. 1 

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II. 

JURISDICTION .............................................................................................. 2 

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III. 

PARTIES BOUND .......................................................................................... 3 

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IV. 

DEFINITIONS ................................................................................................ 3 

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V. 

STATEMENT OF PURPOSE......................................................................... 6 

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VI. 

PAYMENT OF RESPONSE COSTS ............................................................. 7 

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VII.  FAILURE TO COMPLY WITH CONSENT DECREE ................................ 9 

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VIII.  COVENANTS BY THE UNITED STATES ................................................ 11 

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IX. 

RESERVATION OF RIGHTS BY UNITED STATES ............................... 12 

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X. 

COVENANTS BY SETTLING DEFENDANTS ......................................... 13 

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XI. 

EFFECT OF SETTLEMENT/CONTRIBUTION ........................................ 14 

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XII.  RETENTION OF RECORDS AND CERTIFICATION .............................. 16 

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XIII.  NOTICES AND SUBMISSIONS ................................................................. 19 

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XIV.  RETENTION OF JURISDICTION .............................................................. 21 

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XV.  INTEGRATION/APPENDICES................................................................... 21 

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XVI.  LODGING AND OPPORTUNITY FOR PUBLIC COMMENT................. 21 

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XVII. SIGNATORIES/SERVICE ........................................................................... 22 

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XVIII.FINAL JUDGMENT .................................................................................... 22 

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I.
A.

BACKGROUND

The United States of America (“United States”), on behalf of the

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Administrator of the U.S. Environmental Protection Agency (“EPA”), filed a

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complaint in this matter pursuant to Section 107 of the Comprehensive

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Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”),

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42 U.S.C. § 9607, seeking reimbursement of response costs incurred or to be

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incurred for response actions taken or to be taken at or in connection with the

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release or threatened release of hazardous substances at the BKK Sanitary Landfill

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Site in West Covina, California (“the Site”).

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B.

In response to the release or threatened release of hazardous

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substances at or from the Site, EPA undertook response actions at the Site pursuant

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to Section 104 of CERCLA, 42 U.S.C. § 9604, and may undertake additional

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response actions in the future.

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C.

In performing response action at the Site, EPA has incurred response

costs and will incur additional response costs in the future.
D.

The California Department of Toxic Substances Control (“DTSC”)

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and the Settling Defendants, as defined below, have negotiated and executed a

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consent decree (“DTSC Consent Decree”), which several other agencies of the

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State of California have joined, that settles claims of the State agencies against the

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Settling Defendants related to the BKK Sanitary Landfill Site. The DTSC Consent

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Decree will be lodged with this Court simultaneously with this Consent Decree.

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Pursuant to the DTSC Consent Decree, JPMorgan Chase Bank, N.A. (“JPMC”), on

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behalf of itself and all other Settling Defendants, will pay $85,000,000 to DTSC, to

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be used for work at the Site. DTSC is overseeing response actions at the Site.

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Pursuant to the DTSC Consent Decree, if EPA and DTSC determine that EPA

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should begin overseeing response actions at the Site, the State will transfer to EPA

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certain funds it received from Settling Defendants.

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E.

The United States alleges that the defendants that have entered into

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this Consent Decree (“Settling Defendants”) are responsible parties pursuant to

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Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and are jointly and severally

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liable for response costs incurred and to be incurred at the Site.

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F.

Settling Defendants do not admit any liability arising out of the

transactions or occurrences alleged in the complaint.
G.

EPA has reviewed the Financial Information and Insurance

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Information submitted by WMI Rainier, LLC to determine whether WMI Rainier,

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LLC is financially able to pay response costs incurred and to be incurred at the

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Site. Based upon this Financial Information and Insurance Information, EPA has

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determined that WMI Rainier, LLC has limited financial ability to pay for response

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costs incurred and to be incurred at the Site.

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H.

The United States and Settling Defendants agree, and this Court by

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entering this Consent Decree finds, that this Consent Decree has been negotiated

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by the Parties in good faith, that settlement of this matter without further litigation

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and without the admission or adjudication of any issue of fact or law is appropriate

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and will avoid prolonged and complicated litigation between the Parties, and that

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this Consent Decree is fair, reasonable, and in the public interest.

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NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and
DECREED:

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II.
1.

JURISDICTION

This Court has jurisdiction over the subject matter of this action

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pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§ 9607 and 9613(b) and

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also has personal jurisdiction over Settling Defendants. Solely for the purposes of

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this Consent Decree and the underlying complaint, Settling Defendants waive all

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objections and defenses that they may have to jurisdiction of the Court or to venue

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in this District. Settling Defendants shall not challenge entry or the terms of this

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Consent Decree or this Court’s jurisdiction to enter and enforce this Consent

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Decree.

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III.
2.

PARTIES BOUND

This Consent Decree is binding upon the United States, and upon

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Settling Defendants and their successors and assigns. Any change in ownership or

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corporate or other legal status, including, but not limited to, any transfer of assets

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or real or personal property, shall in no way alter the status or responsibilities of

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Settling Defendants under this Consent Decree.

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IV.
3.

DEFINITIONS

Unless otherwise expressly provided in this Consent Decree, terms

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used in this Consent Decree that are defined in CERCLA or in regulations

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promulgated under CERCLA shall have the meaning assigned to them in CERCLA

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or in such regulations. Whenever terms listed below are used in this Consent

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Decree or in any appendix attached hereto, the following definitions shall apply

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solely for purposes of this Consent Decree:

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“BKK Sanitary Landfill Site Special Account” shall mean the special

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account, within the EPA Hazardous Substance Superfund, established for the Site

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by EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

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“CERCLA” shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.
“Consent Decree” shall mean this Consent Decree and all appendices

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attached hereto. In the event of conflict between this Consent Decree and any

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appendix, this Consent Decree shall control.

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“Day” or “day” shall mean a calendar day. In computing any period of

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time under this Consent Decree, where the last day would fall on a Saturday,

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Sunday, or federal or State holiday, the period shall run until the close of

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business of the next working day.
“DOJ” shall mean the U.S. Department of Justice and its successor

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departments, agencies, or instrumentalities.
“DTSC” shall mean the California Department of Toxic Substances

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Control.
“DTSC Consent Decree” shall mean the consent decree entered into by

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the State agencies and Settling Defendants in 2016 to resolve Settling

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Defendants’ liability at the Site.
“Effective Date” shall mean the date upon which the approval of this

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Consent Decree is recorded on the Court’s docket.
“EPA” shall mean the U.S. Environmental Protection Agency and its

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successor departments, agencies, or instrumentalities.
“EPA Hazardous Substance Superfund” shall mean the Hazardous

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Substance Superfund established by the Internal Revenue Code, 26 U.S.C. §

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9507.

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“Financial Information” shall mean those financial documents pertaining
to WMI Rainier, LLC identified in Appendix B.
“Insurance Information” shall mean those insurance documents
pertaining to WMI Rainier, LLC identified in Appendix C.
“Interest” shall mean interest at the rate specified for interest on

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investments of the EPA Hazardous Substance Superfund established by 26

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U.S.C. § 9507, compounded annually on October 1 of each year, in accordance

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with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in

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effect at the time the interest accrues. The rate of interest is subject to change

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on October 1 of each year.

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“JPMC” shall mean JPMorgan Chase Bank, N.A.

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“Paragraph” shall mean a portion of this Consent Decree identified by an

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Arabic numeral or an upper or lower case letter.

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“Parties” shall mean the United States and Settling Defendants.

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“RCRA” shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-

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6992 (also known as the Resource Conservation and Recovery Act).
“Section” shall mean a portion of this Consent Decree identified by a
Roman numeral.
“Settling Defendants” shall mean:
a)

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JPMC, in its individual capacity, and in its capacity as

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having purchased assets and assumed liabilities of: (i) Washington

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Mutual Bank, Henderson, Nevada (“WMB”), whose predecessors in

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interest include Home Savings & Loan Association, a California

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corporation (also known as Home Savings of America, Home Savings of

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America, a Federal Savings and Loan Association, and Home Savings of

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America, F.A.); and (ii) Washington Mutual Bank, FSB, Park City, Utah,

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to the extent provided for in the September 25, 2008 purchase and

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assumption agreement among Federal Deposit Insurance Corporation

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(“FDIC”), as receiver for Washington Mutual Bank, FDIC in its corporate

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capacity, and JPMC;
b)

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WMI Liquidating Trust, on behalf of itself and WMI

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Holdings Corp., in accordance with each of (i) Section 2.2 of the

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agreement entered on or about December 5, 2010, in the Washington

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Mutual Inc. Bankruptcy Chapter 11 case, by Washington Mutual, Inc. and

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WMI Investment Corp., JPMC, DTSC and the BKK Joint Defense Group

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and concerning the Site, (ii) the Seventh Amended Joint Plan of Affiliated

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Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code

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dated December 12, 2011, and as modified thereafter (including Section

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27.6 thereof), and (iii) Paragraph 12 of the Findings of Fact, Conclusions

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of Law, and Order Confirming the Seventh Amended Joint Plan of

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Affiliated Debtors Pursuant to Chapter 11 of the United States

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Bankruptcy Code filed February 24, 2013 (WMI Holdings Corp.,

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together with WMI Liquidating Trust, is identified as a Debtor and

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Reorganized Debtor in the Seventh Amended Joint Plan); and
c)

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WMI Rainier, LLC, on behalf of itself and alleged

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predecessors in interest Ahmanson Developments, Inc. and Oxford

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Investment Corporation.

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“Site” shall mean the BKK Sanitary Landfill Site, encompassing

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approximately 583 acres, located at 2210 South Azusa Avenue, in West Covina,

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Los Angeles County, California, and generally shown on the map included in

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Appendix A.

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“State” shall mean the State of California.

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“United States” shall mean the United States of America and each

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department, agency, and instrumentality of the United States, including EPA.

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V.
4.

STATEMENT OF PURPOSE

By entering into this Consent Decree, the mutual objective of the

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Parties is for JPMC, on behalf of Settling Defendants, to make a cash payment that,

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taken in light of the DTSC Consent Decree, resolves Settling Defendants’ alleged

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civil liability for the Site under Sections 106 and 107 of CERCLA, 42 U.S.C.

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§§ 9606 and 9607, and under Section 7003 of RCRA, 42 U.S.C. § 6973, as

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provided in the Covenants by The United States in Section VIII, and subject to the

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Reservations of Rights by United States in Section IX.

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VI.
5.

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PAYMENT OF RESPONSE COSTS

Payment of Response Costs. JPMC, on behalf of Settling Defendants,

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shall pay to EPA the principal amount of $1,000,000. The payment shall be made

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within 30 days after the Effective Date and, if timely paid, shall include no Interest.

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6.

JPMC, on behalf of Settling Defendants, shall make payment at

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https://www.pay.gov to the U.S. Department of Justice account, in accordance with

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instructions provided to Settling Defendants by the Financial Litigation Unit

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(“FLU”) of the U.S. Attorney’s Office for the Central District of California after

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the Effective Date. The payment instructions provided by the FLU shall include a

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Consolidated Debt Collection System (“CDCS”) number, which shall be used to

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identify all payments required to be made in accordance with this Consent Decree.

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The FLU shall provide the payment instructions to:

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Arthur Korzec
JPMorgan Chase Bank, N.A.
Executive Director and Assistant General Counsel
JPMorgan Chase Bank, N.A.
4 New York Plaza, 19th Floor
New York, NY 10004-2413

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and

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Albert M. Cohen
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067

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on behalf of Settling Defendants. JPMC, on behalf of Settling Defendants, may
change the individual to receive payment instructions on their behalf by providing
written notice to DOJ and EPA of such change in accordance with Section XIII
(Notices and Submissions).

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7.

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Deposit of Payment.
a.

Deposit of Settling Defendants’ Payment. The total amount to

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be paid pursuant to Paragraph 5 (Payment of Response Costs), along with any

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other payments required under this Consent Decree, shall be deposited by EPA in

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the BKK Sanitary Landfill Site Special Account to be retained and used to conduct

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or finance response actions at or in connection with the Site, or to be transferred by

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EPA to the EPA Hazardous Substance Superfund.

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b.

Deposit of Funds Transferred from State to EPA. If EPA and

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DTSC determine that EPA should begin overseeing response actions at the Site,

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and the State transfers to EPA any portion of the funds it received from Settling

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Defendants pursuant to the DTSC Consent Decree, those funds shall be deposited

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by EPA in the BKK Sanitary Landfill Site Special Account, to be retained or used

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to conduct or finance response actions at or in connection with the Site, or if those

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funds are not needed at the Site, to be transferred by EPA to the EPA Hazardous

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Substance Superfund. Any funds transferred from the State to EPA pursuant to the

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DTSC Consent Decree will not be used to reimburse EPA for response costs it has

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incurred at or in connection with the Site prior to the date of the agreement

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between EPA and DTSC that EPA should assume primary responsibility for

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overseeing response actions at the Site. EPA may make available funds in the

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BKK Sanitary Landfill Site Special Account for disbursement to potentially

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responsible parties who agree to conduct response actions at the Site pursuant to an

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agreement with EPA, as partial reimbursement for performance of those response

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actions.

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8.

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Notice of Payment. At the time of payment, JPMC, on behalf of

Settling Defendants, shall send notice that payment has been made (a) to EPA in

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accordance with Section XIII (Notices and Submissions), (b) to DOJ in accordance

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with Section XIII; and (c) to the EPA Cincinnati Finance Office (CFO) at:

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EPA CFO by email:

[e-mail]

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EPA CFO by regular mail:

EPA Cincinnati Finance Office
26 W. Martin Luther King Drive
Cincinnati, Ohio 45268

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Such notice shall reference the CDCS Number, Site/Spill ID Number 0961, and
DJ # 90-11-3-10782.
VII. FAILURE TO COMPLY WITH CONSENT DECREE

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to make the payment required by Paragraph 5 (Payment of Response Costs) by the
required due date, Interest shall accrue on the unpaid balance from the Effective
Date through the date of payment.
10.

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If any amounts due to EPA under Paragraph 5 (Payment of

Response Costs) are not paid by the required date, Settling Defendants shall be in
violation of this Consent Decree and shall pay, as a stipulated penalty, in addition
to the Interest required by Paragraph 9 (Interest on Payments), $1,000 per day that
such payment is late.
b.

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Stipulated Penalty.
a.

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Interest on Payments. If JPMC, on behalf of Settling Defendants, fails

Stipulated penalties are due and payable within 30 days after

the date of the demand for payment of the penalties by EPA. All payments to EPA
under this Paragraph shall be identified as “stipulated penalties” and shall be made
by Fedwire Electronic Funds Transfer to:

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Federal Reserve Bank of New York
ABA = 021030004
Account = 68010727
SWIFT address = FRNYUS33
33 Liberty Street
New York, NY 10045
Field Tag 4200 of the Fedwire message should read “D
68010727 Environmental Protection Agency”

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Each payment shall reference the CDCS Number, Site/ Spill ID Number 0961, and

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DJ # 90-11-3-10782.
c.

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At the time of payment, Settling Defendants shall send notice

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that payment has been made to EPA and DOJ in accordance with Paragraph 8

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(Notice of Payment).
d.

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Penalties shall accrue as provided in this Paragraph regardless

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of whether EPA has notified Settling Defendants of the violation or made a

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demand for payment, but need only be paid upon demand. All penalties shall

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begin to accrue on the day after payment is due and shall continue to accrue

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through the date of payment. Nothing in this Consent Decree shall prevent the

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simultaneous accrual of separate penalties for separate violations of this Consent

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Decree.

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11.

If the United States brings an action to enforce this Consent Decree,

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Settling Defendants shall reimburse the United States for all costs of such action,

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including but not limited to costs of attorney time.

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12.

Payments made under this Section shall be in addition to any other

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remedies or sanctions available to the United States by virtue of Settling

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Defendants’ failure to comply with the requirements of this Consent Decree.

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13.

Notwithstanding any other provision of this Section, the United States

may, in its unreviewable discretion, waive payment of any portion of the stipulated

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penalties that have accrued pursuant to this Consent Decree. Payment of stipulated

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penalties shall not excuse Settling Defendants from payment as required by Section

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VI or from performance of any other requirements of this Consent Decree.

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VIII. COVENANTS BY THE UNITED STATES
14.

Except as specifically provided in Section IX (Reservation of Rights

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by United States), the United States covenants not to sue or to take administrative

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action against Settling Defendants pursuant to Sections 106 and 107(a) of

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CERCLA, 42 U.S.C. §§ 9606 and 9607(a), and Section 7003 of RCRA, 42 U.S.C.

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§ 6973, regarding the Site. With respect to present and future liability, these

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covenants shall take effect upon the latter of (a) receipt by EPA of all amounts

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required by Paragraph 5 (Payment of Response Costs) and any Interest or

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stipulated penalties due thereon under Section VII (Failure to Comply with

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Consent Decree); or (b) written confirmation from DTSC that JPMC has made full

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payment of the $85 million due under the DTSC Consent Decree. These covenants

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are conditioned upon the satisfactory performance by Settling Defendants of their

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obligations under this Consent Decree.

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15.

As to WMI Rainier, LLC, the covenants set forth in Paragraph 14 are

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further conditioned upon the veracity and completeness of the Financial

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Information and the Insurance Information provided to EPA by WMI Rainier, LLC

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and the financial, insurance, and indemnity certification made by WMI Rainier,

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LLC in Paragraphs 33-34. If the Financial Information or the Insurance

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Information provided by WMI Rainier, LLC, or the financial, insurance, or

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indemnity certification made by WMI Rainier, LLC in Paragraphs 33-34, is

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subsequently determined by EPA to be false or, in any material respect, inaccurate,

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WMI Rainier, LLC shall forfeit all payments made pursuant to this Consent Decree

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and these covenants and the contribution protection in Paragraph 24 shall be null

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and void as to WMI Rainier, LLC. Such forfeiture shall not constitute liquidated

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damages and shall not in any way foreclose the United States’ right to pursue any

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other causes of action arising from WMI Rainier, LLC’s provision of false or

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materially inaccurate information.

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16.

Defendants and do not extend to any other person.

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The covenants set forth in Paragraph 14 extend only to Settling

IX.
17.

RESERVATION OF RIGHTS BY UNITED STATES

The United States reserves, and this Consent Decree is without

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prejudice to, all rights against Settling Defendants with respect to all matters not

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expressly included within the Covenants by The United States in Paragraph 14.

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Notwithstanding any other provision of this Consent Decree, the United States

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reserves all rights against Settling Defendants with respect to:
a.

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liability for failure of Settling Defendants to meet a requirement

of this Consent Decree;

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b.

criminal liability;

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c.

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

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natural resources, and for the costs of any natural resource damage assessments;
d.

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liability based on the ownership or operation of the Site by

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Settling Defendants when such ownership or operation commences after signature

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of this Consent Decree by Settling Defendants;
e.

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liability based on Settling Defendants’ transportation,

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treatment, storage, or disposal, or arrangement for transportation, treatment,

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storage, or disposal of a hazardous substance or a solid waste at or in connection

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with the Site, after signature of this Consent Decree by Settling Defendants; and

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f.

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liability arising from the past, present, or future disposal,

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release or threat of release of a hazardous substance, pollutant, or contaminant

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outside of the Site.

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18.

Notwithstanding any other provision of this Consent Decree, the

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United States reserves, and this Consent Decree is without prejudice to, the right to

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reinstitute or reopen this action as to WMI Rainier, LLC, or to commence a new

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action seeking relief other than as provided in this Consent Decree as to WMI

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Rainier, LLC, if the Financial Information or the Insurance Information provided

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by WMI Rainier, LLC, or the financial, insurance, or indemnity certification made

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by WMI Rainier, LLC in Paragraphs 33-34, is false or, in any material respect,

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inaccurate.

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X.
19.

COVENANTS BY SETTLING DEFENDANTS

Settling Defendants covenant not to sue and agree not to assert any

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claims or causes of action against the United States, or its contractors or

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employees, with respect to the Site and this Consent Decree, including but not

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limited to:
a.

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any direct or indirect claim for reimbursement from the

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Hazardous Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or

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113 of CERCLA, 42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any

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other provision of law;
b.

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any claim arising out of response actions at or in connection

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with the Site, including any claim under the United States Constitution, the

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California Constitution, the Tucker Act, 28 U.S.C. § 1491, the Equal Access to

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Justice Act, 28 U.S.C. § 2412, as amended, or at common law; or

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c.

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any claim pursuant to Sections 107 or 113 of CERCLA, 42

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U.S.C. §§ 9607 or 9613, Section 7002(a) of RCRA, 42 U.S.C. § 6972(a), or State

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law, relating to the Site.

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20.

Except as provided in Paragraph 22 (claims against other PRPs) and

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Paragraph 26 (Res Judicata and other Defenses), these covenants shall not apply in

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the event the United States brings a cause of action or issues an order pursuant to

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any of the reservations set forth in Section IX (Reservations of Rights by United

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States), other than in Paragraph 17.a (liability for failure to meet a requirement of

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the Consent Decree) or 17.b (criminal liability), but only to the extent that Settling

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Defendants’ claims arise from the same response action or response costs that the

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United States is seeking pursuant to the applicable reservation.

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21.

Nothing in this Consent Decree shall be deemed to constitute approval

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or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42

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U.S.C. § 9611, or 40 C.F.R. 300.700(d).

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22.

Settling Defendants agree not to assert any claims and to waive all

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claims or causes of action (including but not limited to claims or causes of action

17

under Sections 107(a) and 113 of CERCLA) that they may have for response costs

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relating to the Site against any other person who is a potentially responsible party

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under CERCLA at the Site. This waiver shall not apply with respect to any

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defense, claim, or cause of action that Settling Defendants may have against any

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person if such person asserts a claim or cause of action relating to the Site against

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such Settling Defendants.

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XI.
23.

EFFECT OF SETTLEMENT/CONTRIBUTION

Except as provided in Paragraph 22 (claims against other PRPs),

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nothing in this Consent Decree shall be construed to create any rights in, or grant

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any cause of action to, any person not a Party to this Consent Decree. Except as

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provided in Section X (Covenants by Settling Defendants), each of the Parties

2

expressly reserves any and all rights (including, but not limited to, under Section

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113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands, and causes of

4

action which it may have with respect to any matter, transaction, or occurrence

5

relating in any way to the Site against any person not a Party hereto. Nothing in

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this Consent Decree diminishes the right of the United States, pursuant to Section

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113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue any such

8

persons to obtain additional response costs or response action and to enter into

9

settlements that give rise to contribution protection pursuant to Section 113(f)(2).

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24.

The Parties agree, and by entering this Consent Decree this Court

11

finds, that this settlement constitutes a judicially approved settlement for purposes

12

of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and that Settling

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Defendants are entitled, as of the Effective Date, to protection from contribution

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actions or claims as provided by Section 113(f)(2) of CERCLA, or as may be

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otherwise provided by law, for “matters addressed” in this Consent Decree. The

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“matters addressed” in this Consent Decree are all response actions taken or to be

17

taken and all response costs incurred or to be incurred, at or in connection with the

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Site, by the United States or any other person, except for the State; provided,

19

however, that if the United States exercises rights under the reservations in Section

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IX (Reservations of Rights by United States), other than in Paragraph 17.a

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(liability for failure to meet a requirement of the Consent Decree) or 17.b (criminal

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liability), the “matters addressed” in this Consent Decree will no longer include

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those response costs or response actions that are within the scope of the exercised

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reservation.

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25.

Settling Defendants shall, with respect to any suit or claim brought by

any Settling Defendant for matters related to this Consent Decree, notify EPA and

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DOJ in writing no later than 60 days prior to the initiation of such suit or claim.

2

Settling Defendants also shall, with respect to any suit or claim brought against any

3

Settling Defendant for matters related to this Consent Decree, notify EPA and DOJ

4

in writing within 10 days after service of the complaint or claim. In addition,

5

Settling Defendants shall notify EPA and DOJ within 10 days after service or

6

receipt of any Motion for Summary Judgment, and within 10 days after receipt of

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any order from a court setting a case for trial, for matters related to this Consent

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Decree.

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26.

In any subsequent administrative or judicial proceeding initiated by

10

the United States for injunctive relief, recovery of response costs, or other relief

11

relating to the Site, Settling Defendants shall not assert, and may not maintain, any

12

defense or claim based upon the principles of waiver, res judicata, collateral

13

estoppel, issue preclusion, claim-splitting, or other defenses based upon any

14

contention that the claims raised by the United States in the subsequent proceeding

15

were or should have been brought in the instant case; provided, however, that

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nothing in this Paragraph affects the enforceability of the Covenants by The United

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States set forth in Section VIII.

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XII. RETENTION OF RECORDS AND CERTIFICATION
27.

Until 10 years after the entry of this Consent Decree, JPMC shall

20

preserve and retain all non-identical copies of records, reports, or information,

21

including documents referred to in Paragraph 32 below, (hereinafter referred to as

22

“Records”) now in its possession or control, or that come into its possession or

23

control, that relate in any manner to its liability under CERCLA with respect to the

24

Site. JPMC must retain, in addition, all Records that relate to the liability of any

25

other person under CERCLA with respect to the Site. Each of the above record

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retention requirements shall apply regardless of any corporate retention policy to

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the contrary.

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28.

After the conclusion of the record retention period, JPMC shall notify

4

EPA and DOJ at least 90 days prior to the destruction of any such Records, and,

5

upon request by EPA or DOJ, except as provided in Paragraph 29 (Privileged and

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Protected Claims), JPMC shall deliver any such Records to EPA.

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29.

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Privileged and Protected Claims.
a.

JPMC may assert that all or part of a Record is privileged or

protected as provided under federal law, provided it complies with Paragraph 29.b,
and except as provided in Paragraph 29.c.

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b.

If JPMC asserts a claim of privilege or protection, it shall

12

provide the United States with the following information regarding such Record:

13

its title; its date; the name, title, affiliation (e.g., company or firm), and address of

14

the author, each addressee, and of each recipient; a description of the Record’s

15

contents; and the privilege or protection asserted. If a claim of privilege or

16

protection applies only to a portion of a Record, JPMC shall provide the Record to

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the United States in redacted form to mask the privileged or protected information

18

only. JPMC shall retain all Records that it claims to be privileged or protected

19

until the United States has had a reasonable opportunity to dispute the privilege or

20

protection claim and any such dispute has been resolved in the JPMC’s favor.

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c.

22

JPMC may make no claim of privilege or protection regarding:
(1)

any data regarding the Site, including, but not limited to,

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all sampling, analytical, monitoring, hydrogeologic, scientific,

24

chemical, radiological, or engineering data, or the portion of any other

25

Record that evidences conditions at or around the Site; or

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(2)

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required to create or generate pursuant to this Consent Decree.

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3

the portion of any Record that Settling Defendants are

30.

Business Confidential Claims. JPMC may assert that all or part of a

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Record submitted to the United States under this Section is business confidential to

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the extent permitted by and in accordance with Section 104(e)(7) of CERCLA, 42

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U.S.C. § 9604(e)(7), and 40 C.F.R. 2.203(b). JPMC shall segregate and clearly

7

identify all Records or parts thereof submitted under this Consent Decree for which

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JPMC asserts a business confidentiality claim. Records submitted to EPA

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determined to be confidential by EPA will be accorded the protection specified in

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40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies Records

11

when they are submitted to EPA, or if EPA has notified JPMC that the Records are

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not confidential under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R.

13

Part 2 Subpart B, the public may be given access to such Records without further

14

notice to JPMC.

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31.

JPMC certifies that, to the best of its knowledge and belief, after

16

thorough inquiry, Settling Defendants have not altered, mutilated, discarded,

17

destroyed or otherwise disposed of any Records (other than identical copies)

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relating to their potential liability regarding the Site since notification of potential

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liability by the United States or the State, and that they have fully complied with

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any and all EPA and State requests for information regarding the Site and Settling

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Defendants’ financial circumstances, including but not limited to insurance and

22

indemnity information, pursuant to Sections 104(e) and 122(e) of CERCLA, 42

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U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927, and

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State law.

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32.

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JPMC certifies that to the best of its knowledge and belief, after

thorough inquiry, Washington Mutual, Inc. and WMI Rainier, LLC have made

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available to DTSC and JPMC all Records in their possession or control that relate

2

in any manner to response actions taken at the Site or the liability of any person

3

under CERCLA with respect to the Site, and that JPMC has provided copies of

4

such documents to DTSC.
33.

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6

WMI Rainier, LLC certifies that, to the best of its knowledge and

belief, after thorough inquiry, it has:
a.

7

submitted to EPA financial information that fairly, accurately,

8

and materially sets forth its financial circumstances, and that those circumstances

9

have not materially changed between the time the financial information was

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submitted to EPA and the time WMI Rainier, LLC executed this Consent Decree;

11

and
b.

12

fully disclosed any information regarding the existence of any

13

insurance policies or indemnity agreements that may cover claims relating to

14

cleanup of the Site, and submitted to EPA upon request such insurance policies,

15

indemnity agreements, and information.

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34.

WMI Rainier, LLC certifies that it has no other assets other than those

described in Appendix B and that those assets have been or will be provided, in
full, to DTSC in satisfaction of Settling Defendants’ obligations under the DTSC
Consent Decree. WMI Rainier, LLC further certifies that all proceeds from Siterelated claims made on its insurance policies listed in Appendix C have been or
will be provided in full to DTSC in satisfaction of Settling Defendants’ obligations
under the DTSC Consent Decree.

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XIII. NOTICES AND SUBMISSIONS

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35.

Whenever, under the terms of this Consent Decree, notice is required

to be given or a document is required to be sent by one party to another, it shall be

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directed to the individuals at the addresses specified below, unless those

2

individuals or their successors give notice of a change to the other Parties in

3

writing. Written notice as specified in this Section shall constitute complete

4

satisfaction of any written notice requirement of the Consent Decree with respect

5

to EPA, DOJ, and Settling Defendants, respectively.

6

As to DOJ by email:

[e-mail]

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As to DOJ by regular mail:

EES Case Management Unit
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-11-3-10782

As to EPA:

Sarah Mueller
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region IX
75 Hawthorne St., ORC-3
San Francisco, CA 94105

As to Setting Defendants:

William Viets
Managing Director
JPMorgan Chase Bank, N.A.
237 Park Avenue, 12th Floor
New York, NY 10017

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Arthur Korzec
Executive Director and Assistant General Counsel
Legal Department
JPMorgan Chase Bank, N.A.
4 New York Plaza, 19th Floor
New York, NY 10004-2413

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Albert M. Cohen
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067

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XIV. RETENTION OF JURISDICTION
36.

This Court shall retain jurisdiction over this matter for the purpose of

interpreting and enforcing the terms of this Consent Decree.

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XV. INTEGRATION/APPENDICES
37.

This Consent Decree and its appendices constitute the final, complete

10

and exclusive agreement and understanding between the Parties with respect to the

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settlement embodied in this Consent Decree. The Parties acknowledge that there

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are no representations, agreements, or understandings relating to the settlement

13

other than those expressly contained in this Consent Decree. The following

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appendices are attached to and incorporated into this Consent Decree:

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“Appendix A” is the map of the Site.

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“Appendix B” is a list of the financial documents submitted to EPA by WMI

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Rainier, LLC.
“Appendix C” is a list of the insurance documents submitted to EPA by
WMI Rainier, LLC.
XVI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
38.

This Consent Decree shall be lodged with the Court for a period of not

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less than 30 days for public notice and comment. The United States reserves the

23

right to withdraw or withhold its consent if the comments regarding the Consent

24

Decree disclose facts or considerations that indicate that this Consent Decree is

25

inappropriate, improper, or inadequate. Settling Defendants consent to the entry of

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this Consent Decree without further notice.

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39.

If for any reason this Court should decline to approve this Consent

2

Decree in the form presented, this Consent Decree is voidable at the sole discretion

3

of any Party and the terms of the Consent Decree may not be used as evidence in

4

any litigation between the Parties.

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6

XVII. SIGNATORIES/SERVICE
40.

Each undersigned representative of Settling Defendants, EPA, and the

7

Assistant Attorney General, U.S. Department of Justice, Environment and Natural

8

Resources Division, Environmental Enforcement Section, certifies that he or she is

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authorized to enter into the terms and conditions of this Consent Decree and to

10
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execute and bind legally such Party to this document.
41.

Settling Defendants agree not to oppose entry of this Consent Decree

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by this Court or to challenge any provision of this Consent Decree, unless the

13

United States has notified Settling Defendants in writing that it no longer supports

14

entry of the Consent Decree.

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42.

Settling Defendants shall identify, on the attached signature page, the

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name and address of an agent who is authorized to accept service of process by

17

mail on their behalf with respect to all matters arising under or relating to this

18

Consent Decree. Settling Defendants agree to accept service in that manner and to

19

waive the formal service requirements set forth in Rule 4 of the Federal Rules of

20

Civil Procedure and any applicable local rules of this Court, including but not

21

limited to, service of a summons. The Parties agree that Settling Defendants need

22

not file an answer to the complaint in this action unless or until the Court expressly

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declines to enter this Consent Decree.

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XVIII.
43.

FINAL JUDGMENT

Upon entry of this Consent Decree by the Court, this Consent Decree

shall constitute the final judgment between and among the United States and

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Settling Defendants. The Court enters this judgment as a final judgment under

2

Fed. R. Civ. P. 54 and 58.

3

SO ORDERED THIS 26th DAY OF January, 2017.

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6

______________________________

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United States District Judge

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Signature Page for Consent Decree Regarding BKK Sanitary Landfill Site

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FOR THE UNITED STATES OF AMERICA:

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___________
Date

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___________________________________
JOHN C. CRUDEN
Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, D.C. 20044-7611

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___________________________________
DAVIS H. FORSYTHE
Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
999 18th Street, South Terrace Suite 370
Denver, CO 80211

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Signature Page for Consent Decree Regarding BKK Sanitary Landfill Site

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FOR THE UNITED STATES OF AMERICA
(cont.):

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___________
Date

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___________________________________
ENRIQUE MANZANILLA
Director, Superfund Division
Region IX
U.S. Environmental Protection Agency
75 Hawthorne St.
San Francisco, CA 94105

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___________________________________
SARAH E. MUELLER
Assistant Regional Counsel
Region IX
U.S. Environmental Protection Agency
75 Hawthorne St.
San Francisco, CA 94105

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Signature Page for Consent Decree Regarding BKK Sanitary Landfill Site

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FOR JPMORGAN CHASE BANK N.A.,

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____________
Date

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_________________________________
Name (print): George C. Ross
Title: Executive Vice President
Address: 270 Park Avenue
New York, NY 10017

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Agent Authorized to Accept Service on Behalf of Above-signed Party:

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Name (print): Albert M. Cohen
Title: Partner
Company: Loeb & Loeb LLP
Address: 10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Phone: [phone]
email: [e-mail]

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10734528.1
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Signature Page for Consent Decree Regarding BKK Sanitary Landfill Site

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FOR WMI LIQUIDATING TRUST

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____________
Date

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_________________________________
Name (print): George C. Ross
Title: Executive Vice President
Address: 270 Park Avenue
New York, NY 10017

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Agent Authorized to Accept Service on Behalf of Above-signed Party:
Name (print): Albert M. Cohen
Title: Partner
Company: Loeb & Loeb LLP
Address: 10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Phone: [phone]
email: [e-mail]

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Signature Page for Consent Decree Regarding BKK Sanitary Landfill Site

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FOR WMI RAINIER, LLC:

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5

____________
Date

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_________________________________
Name (print): George C. Ross
Title: Executive Vice President
Address: 270 Park Avenue
New York, NY 10017

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Agent Authorized to Accept Service on Behalf of Above-signed Party:

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Name (print): Albert M. Cohen
Title: Partner
Company: Loeb & Loeb LLP
Address: 10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Phone: [phone]
email: [e-mail]

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