State of California Department of Toxic Substances Control v. Alpha Therapeutic Corporation et al

Filing 39

CONSENT DECREE BETWEEN DTSC AND GLASTEEL OF TENNESSEE INC.; SEMTECH CORPORATION; and UNITRODE CORPORATION by Judge Manuel L. Real. Settling Defendants or their designee shall pay DTSC $250,000 within thirty (30) Days of the Effective Date. See document for details. (lom)

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XAVIER BACERRA, Attorney General of California
SARAH E. MORRISON
Supervising Deputy Attorney General
JAMES R. POTTER, State Bar No. 166992
BRIAN J. BILFORD, State Bar No. 262812
Deputy Attorneys General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff California
Department of Toxic Substances Control

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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STATE OF CALIFORNIA
DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,

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v.

CASE NO. CV-17-785-R-RAO
CONSENT DECREE BETWEEN
Plaintiff, DTSC AND GLASTEEL OF
TENNESSEE INC.; SEMTECH
CORPORATION; and UNITRODE
CORPORATION

ALPHA THERAPEUTIC
CORPORATION; AOC, LLC;
CAMBRO MANUFACTURING
COMPANY; CATALINA YACHTS,
INC.; GLASTEEL OF TENNESSEE
INC.; GRUBER SYSTEMS, INC.;
HARRINGTON INDUSTRIAL
PLASTICS, LLC; HYDRO SYSTEMS,
INC.; JBI LLC; PARK
INTERNATIONAL CORPORATION;
RESINART CORPORATION;
SEMTECH CORPORATION;
SILVESTRI STUDIO, INC.; TE
CONNECTIVITY CORPORATION;
THREE BOND INTERNATIONAL,
INC., UNITRODE CORPORATION;
and WATKINS MANUFACTURING
CORPORATION

Defendants.

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Consent Decree with
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I.

INTRODUCTION
1. Concurrently with the lodging of this Consent Decree, Plaintiff, the State

of California Department of Toxic Substances Control (“DTSC”), is filing the
complaint (“Complaint”) in this matter pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 96019675 (“CERCLA”). In the Complaint, DTSC seeks to recover under CERCLA
section 107(a), 42 U.S.C. § 9607(a), costs it incurred responding to releases and/or
threatened releases of hazardous substances at or from the former Davis Chemical
Company located at 1550 North Bonnie Beach Place, Los Angeles, California,
identified by Los Angeles County Assessor’s Parcel Number 5224-026-005 (the
“Site”).
2. In the Complaint, DTSC alleges, in relevant part, the following:
a.

The Site is located in the City of Los Angeles.

b.

From approximately 1953 to 1990, Davis Chemical Company

operated a solvent recycling facility at the Site, which recycled acetone and
to a lesser extent chlorinated solvents.
c.

Each of the Settling Defendants, which are the entities

identified in Exhibit A to this Consent Decree, sent hazardous substances to
be recycled at the Site by the Davis Chemical Company.
d.

In 1997, Davis Chemical Company conducted a site

investigation that identified the presence of 1,1,2-trichloroethane (“TCE”),
perchloroethene (“PCE”), and 1,1,2,2-tetrachloroethane in the soil at the Site.
e.

On December 18, 2002, DTSC issued an Imminent and

Substantial Endangerment Determination and Remedial Action Order (the
“2002 Consent Order”), which included findings that hazardous substances
had been released and were present in the soil at the Site in sufficient
concentrations to pose a substantial danger to public health and the

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environment and further that there was a potential threat of groundwater
contamination from those releases. The 2002 Consent Order directed the
respondents thereto to prepare a Remedial Investigation and Feasibility Study
and a Remedial Action Plan (the “RAP”) for the Site. Settling Defendant
Semtech was a respondent in the 2002 Consent Order.
f.

In 2009, DTSC determined that the work required by the 2002

Consent Order was complete.
g.

In 2009, DTSC issued an Imminent and Substantial

Endangerment Determination and Remedial Action Order (the “2009 RAO”)
requiring certain responsible parties to implement the RAP, including
excavation and treatment of contaminated soils, and installation of the soil
vapor extraction system. The respondents did not comply with the 2009
RAO. In November, 2009, DTSC issued a Final Determination of
Noncompliance with the RAO.
h.

Between 2010 and 2015, DTSC implemented the RAP

prepared by the respondents to the 2002 Consent Order.
3. DTSC took response actions necessary to remove and remedy the
hazardous substances released and/or threatened to be released at and from the Site.
DTSC’s response actions included, but were not limited to, the following activities:
additional investigations of contamination at the Site; implementation of the RAP;
enforcement/cost recovery activities; public participation; and compliance with the
California Environmental Quality Act. DTSC’s response actions were not
inconsistent with the National Contingency Plan, 40 C.F.R. Part 300.
4. As of April 2016, DTSC’s unreimbursed Response Costs related to the
Site are approximately $2.1 million.
5. DTSC and Settling Defendants (collectively, the “Parties”) agree, and
this Court, by entering this Consent Decree, finds, that this Consent Decree has

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been negotiated by the Parties in good faith, settlement of this matter will avoid
expensive, prolonged and complicated litigation between the Parties, and this
Consent Decree is fair, reasonable, in the public interest and consistent with the
purpose of CERCLA.

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THEREFORE, the Court, with the consent of the Parties to this
Consent Decree, hereby ORDERS, ADJUDGES, AND DECREES, as follows:
II.

6. The Court has subject matter jurisdiction over the matters alleged in this
action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1367(a) and CERCLA, section
113(b), 42 U.S.C. § 9613(b), and personal jurisdiction over each of the Parties.
Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b) and CERCLA
section 113(b), 42 U.S.C. § 9613(b). Solely for the purposes of this Consent
Decree and the underlying Complaint, Settling Defendants waive all objections and
defenses that Settling Defendants may have to the jurisdiction of the Court or to
venue in this district. Settling Defendants shall not challenge the terms of this
Consent Decree or this Court’s jurisdiction to enter and enforce this Consent
Decree.

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JURISDICTION

7. The Court shall retain jurisdiction over this matter for the purpose of
interpreting and enforcing the terms of this Consent Decree if necessary.
III.

SETTLEMENT OF DISPUTED CLAIMS
8. Subject to the reservations of rights in Section VII, this Consent Decree

resolves all of DTSC’s claims against Settling Defendants in the above-captioned
action. DTSC agrees to resolve Settling Defendants’ liability in this action in
exchange for consideration from Settling Defendants, including payment by
Settling Defendants to reimburse a portion of DTSC’s Response Costs incurred at
or in connection with releases and/or threatened releases of hazardous substances at
and/or from the Site.

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9. Nothing in this Consent Decree shall be construed as an admission by
Settling Defendants of any issue of law or fact or of any violation of law. Except as
otherwise provided by this Consent Decree, this Consent Decree shall not prejudice,
waive or impair any right, remedy or defense that Settling Defendants may have in
any other or further legal proceeding.

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10. Settling Defendants consent to, and shall not challenge entry of this
Consent Decree or this Court’s jurisdiction to enter and enforce this Consent
Decree.

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11. Upon approval and entry of this Consent Decree by the Court, this
Consent Decree shall constitute a final judgment between and among the Parties.
IV.

DEFINITIONS
12. 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 below are
used in this Consent Decree, the definitions below shall apply.
13. “Day” shall mean shall mean a calendar day. In computing any period of
time under this Consent Decree, where the last day would fall on a Saturday,
Sunday, or federal or State holiday, the period shall run until the close of business
of the next Day.
14. “DTSC” shall mean the State of California Department of Toxic
Substances Control and its predecessors and successors. DTSC is a public agency
of the State of California organized and existing under and pursuant to California
Health and Safety Code §§ 58000-18. Under California law, DTSC is the state
agency responsible for determining whether there has been a release and/or
threatened release of hazardous substances into the environment, and for
determining the actions to be taken in response thereto.

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15. “Effective Date” shall mean the date the Court enters an Order approving
this Consent Decree.

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16. “Parties” shall mean DTSC and Settling Defendants.

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17. “Related Persons” shall mean those individuals and entities identified in
Exhibit A to this Consent Decree as either corporate affiliates of a named Settling
Defendant or individuals related to a named Settling Defendant.

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18. “Response Costs” shall mean all costs of “removal”, “remedial action”,
or “response” (as those terms are defined by section 101 of CERCLA, 42 U.S.C.
§ 9601), related to the release and/or threatened release of hazardous substances at,
beneath, and/or from the Site, including in the soils and groundwater.

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19. “Settling Defendants” shall mean the entities identified as such in
Exhibit A to this Consent Decree.

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20. “Site” shall mean the property located at 1550 North Bonnie Beach
Place, Los Angeles, California, in the County of Los Angeles, California, identified
by Los Angeles County Assessor’s Parcel Number 5224-026-005. For purposes of
this Consent Decree, the Site includes anywhere that hazardous substances released
at the Site have come to be located.
V.

SETTLING DEFENDANTS’ OBLIGATIONS
21. Settling Defendants or their designee shall pay DTSC $250,000 within

thirty (30) Days of the Effective Date.
22. The payment specified in Paragraph 21 shall be made by certified or
cashier’s check(s) made payable to Cashier, California Department of Toxic
Substances Control, and shall bear on its face both the docket number of this
proceeding and the phrase “Site Code 300432.” On request, DTSC will provide
instructions for payment by electronic funds transfer.
The payment shall be sent to:
///

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Cashier
Accounting Office, MS-21A
Department of Toxic Substances Control
1001 I Street
P.O. Box 806
Sacramento, CA 95812-0806

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A copy of the check shall be mailed to:

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Robert Sullivan, Attorney
California Department of Toxic Substances Control
Office of Legal Counsel, MS-23A
1001 I Street
P.O. Box 806
Sacramento, CA 95812-0806

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Or e-mailed to [e-mail] in .pdf or .jpg format.

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23. This Consent Decree is conditioned upon full execution of the Settling
Defendants obligations in Paragraphs 21 through 22. If these conditions are not
met, then this Consent Decree, including the covenant not to sue in Section VI,
shall be voidable at the discretion of DTSC, and DTSC may proceed to litigate the
Complaint against Settling Defendants.
VI.

COVENANT NOT TO SUE BY DTSC
24. Except as expressly provided in Section VII (DTSC’s Reservation of

Rights) of this Consent Decree, DTSC covenants not to sue Settling Defendants or
Related Persons pursuant to CERCLA, the California Hazardous Substances
Account Act, Cal. Health & Safety Code sections 25300-25395.3 to: (a) recover
DTSC’s Response Costs related to the Site, including Response Costs associated
with groundwater remediation relating to any hazardous substances released at the
Site; or (b) require Settling Defendants or Related Persons to conduct response
actions, including removal or remedial actions, related to the release and/or
threatened release of hazardous substances at or from the Site, including the soil
and groundwater. This Covenant Not to Sue is conditioned upon the complete and
satisfactory performance by Settling Defendants of all their obligations under this
Consent Decree.

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VII.

DTSC’S RESERVATION OF RIGHTS
25. Claims Regarding Other Matters. DTSC reserves, and this Consent

Decree is without prejudice to, all rights against Settling Defendants and Related
Persons with respect to all matters not expressly included within DTSC’s Covenant
Not to Sue (Section VI).
26. Reservation of Claims. DTSC reserves, and this Consent Decree is
without prejudice to, all rights against Settling Defendants with respect to the
following matters:
a.

Failure of Settling Defendants to meet the requirements of this

Consent Decree;
b.

Damage to natural resources, as defined in CERCLA section

101(6), 42 U.S.C. § 9601(6), including all costs incurred by any natural
resources trustees;
c.

Liability resulting from Settling Defendants’ introduction of

any hazardous substance, pollutant, or contaminant to the Site after the
Effective Date;
d.

Liability resulting from overt acts by Settling Defendants after

the Effective Date that cause the exacerbation of the hazardous substance
conditions existing at or from the Site;
e.

Liability based on the ownership or operation of the Site by

Settling Defendants when such ownership or operation commences after the
Effective Date;
f.

Claims based on liability arising from the past, present, or

future disposal of hazardous substances at sites or locations other than the
Site; and
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Claims based on criminal liability.

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27. Government Authority. Except as expressly provided in the Consent
Decree, nothing in the Consent Decree is intended nor shall it be construed to
preclude DTSC from exercising its authority under any law, statute or regulation.
Furthermore, nothing in the Consent Decree is intended, nor shall it be construed, to
preclude any other state agency, department, board or entity or any federal entity
from exercising its authority under any law, statute or regulation.
28. Claims Against Other Persons. DTSC reserves, and this Consent Decree
is without prejudice to, all rights, claims, and causes of action DTSC may have
against any person other than Settling Defendants and Related Persons. Nothing in
this Consent Decree is intended to be nor shall it be construed as a release, covenant
not to sue, or compromise of any claim or cause of action, which DTSC may have
against any person or other entity that is not a Settling Defendant or a Related
Person.
29. Unknown Conditions/New Information. Notwithstanding any other
provision in the Consent Decree, DTSC reserves, and this Consent Decree is
without prejudice to, the right to institute proceedings in this action or in a new
action, and/or to issue an administrative order seeking to compel Settling
Defendants to perform response activities at the Site and/or to pay DTSC for
additional Response Costs, if:
(a) conditions previously unknown to DTSC, for which Settling Defendants
are liable under any statute or law, are discovered at the Site after the entry of the
Consent Decree, and these conditions indicate that a hazardous substance has been
or is being released at the Site or there is a threat of such release into the
environment and that the response performed at the Site is not protective of human
health and the environment (“Unknown Conditions”), or
(b) DTSC receives information after the entry of the Consent Decree that was
not available to DTSC at the time the Consent Decree was entered, concerning

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matters for which Settling Defendants are liable, and that information results in a
determination that the response performed at the Site is not protective of human
health and the environment (“New Information”).

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(c) For the purpose of this Consent Decree, no contamination identified in the
RAP or indicated by any of the testing, data or other information regarding the Site
submitted to or possessed by DTSC as of December 19, 2016 shall be considered
an Unknown Condition or New Information.
VIII.

COVENANT NOT TO SUE BY SETTLING DEFENDANTS
30. Settling Defendants covenant not to sue, and agree not to assert any

claims or causes of action against DTSC or any DTSC contractors or employees
that arise out of the transaction or occurrence that is the subject matter of the
Complaint, or for any injuries, losses, costs, or damages caused or incurred as a
result of the performance of the requirements of this Consent Decree or the DTSC’s
response actions at the Site.
31. This Section VIII (Covenant Not to Sue by Settling Defendants) does not
pertain to any matters other than those specifically addressed in this Consent
Decree, applies only to DTSC and does not extend to any other department, agency,
board or body of the State of California. The Settling Defendants reserve, and this
Consent Decree is without prejudice to, all rights against DTSC with respect to all
other matters not expressly included within the scope of this Consent Decree.
32. In any legal proceedings that DTSC may initiate against Settling
Defendants for non-compliance with this Consent Decree, Settling Defendants may
raise any and all defenses that Settling Defendants deem to be relevant to the issue
of whether or not they have complied with the terms of this Consent Decree.
///
///
///

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IX.

EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
33. With regard to claims for contribution against Settling Defendants for

“Matters Addressed” in this Consent Decree, the Parties agree, and the Court finds
as follows:

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a.

settlement within the meaning of CERCLA section 113(f)(2), 42 U.S.C.
§ 9613(f)(2).

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b.

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This Consent Decree requires that Settling Defendants pay

certain costs with respect to their alleged liability at the Site.

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This Consent Decree constitutes a judicially approved

c.

Settling Defendants and Related Persons are entitled to the

contribution protection provided by CERCLA section 113(f)(2), 42 U.S.C.
§ 9613(f)(2), and by state statutory and common law for the “Matters
Addressed” in this Consent Decree, except for actions and claims identified
in Section VII (DTSC’s Reservation of Rights).
34. “Matters Addressed”. The “Matters Addressed” in this Consent Decree
are all response actions taken or to be taken and all Response Costs incurred or to
be incurred at or in connection with the Site by DTSC.
35. The protection provided for in this Section IX is conditioned upon
compliance by Settling Defendants with their obligations under Paragraphs 21
through 22 of this Consent Decree.
36. Nothing in this Consent Decree limits or impairs the right of DTSC to
pursue any person other than a Settling Defendant or a Related Person for
unrecovered Response Costs incurred by DTSC.
37. The Court shall retain jurisdiction over this matter for the purpose of
interpreting and enforcing the terms of this Consent Decree if necessary.
///
///

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X.

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NOTIFICATION
38. Notification to or communication among the Parties as required or

provided for in this Consent Decree shall be addressed as follows:

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For DTSC:

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Safouh Sayed, Project Manager
Cypress Cleanup Program
California Department of Toxic Substances Control
Corporate Avenue
Cypress, CA 91311-6505

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Robert Sullivan
California Department of Toxic Substances Control
Office of Legal Counsel, MS-23A
P.O. Box 806
Sacramento, CA 95812-0806

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For Glasteel of Tennessee Inc.:

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Nicholas W. van Aelstyn
Beveridge & Diamond, P.C.
456 Montgomery St Suite 1800,
San Francisco, CA 94104
[e-mail]

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For Semtech Corporation:

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Rick R. Rothman
Morgan, Lewis & Bockius LLP,
300 South Grand Avenue, Suite 2200
Los Angeles, CA 90071-3132
[e-mail]

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For Unitrode Corporation:

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Jonathan Weisberg
Senior Counsel
13588 N. Central Expressway, MS 3999
Dallas, Texas 75243
[e-mail]

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XI.

GENERAL PROVISIONS
39. Parties Bound. This Consent Decree shall apply to, be binding upon, and

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inure to the benefit of the Parties and their representatives, successors, heirs,

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legatees, and assigns.
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40. No Rights in Other Parties. Except as provided in Paragraph 39
regarding parties bound, nothing in this Consent Decree shall be construed to create
any rights in, or grant any cause of action to, any person not a Party to this Consent
Decree or a Related Person.
41. No Waiver of Enforcement. The failure of DTSC to enforce any
provision of this Consent Decree shall in no way be deemed a waiver of such
provision or in any way affect the validity of this Consent Decree. The failure of
DTSC to enforce any such provision shall not preclude it from later enforcing the
same or any other provision of this Consent Decree.
42. Attorneys’ Fees. Except as expressly provided in this Consent Decree,
the Parties will not seek to recover attorneys’ fees and/or litigation costs against
each other.
43. Final Agreement. This Consent Decree constitutes the final, complete
and exclusive agreement and understanding between the Parties with respect to the
settlement embodied in this Consent Decree.
44. Modifications. This Consent Decree may be modified only upon written
approval of the Parties and with the consent of the Court.
45. Signatories. Each signatory to this Consent Decree certifies that he or
she is fully authorized by the Party he or she represents to enter into the terms and
conditions of this Consent Decree, to execute it on behalf of the Party represented,
and to legally bind that Party to all the terms and conditions of this Consent Decree.
46. Counterparts. This Consent Decree may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
47. Agent. Settling Defendants have appointed and authorized the agents
identified in Paragraph 38 to this Consent Decree to receive notices with respect to
all matters arising under or relating to this Consent Decree.

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XII. ENTRY OF THE CONSENT DECREE
48. This Consent Decree shall be lodged with the Court for a period of not
less than thirty (30) calendar days. The Consent Decree also is subject to a public
comment period of not less than thirty (30) calendar days. DTSC may modify or
withdraw its consent to this Consent Decree if comments received during the public
comment period disclose facts or considerations that indicate that this Consent
Decree is inappropriate, improper or inadequate. Settling Defendants consent to the
entry of this Consent Decree without further notice.
49. If, for any reason, the Court declines to approve this Consent Decree in
the form presented, this Consent Decree is voidable at the sole discretion of any
Party and the terms of the Consent Decree may not be used as evidence in any
litigation between the Parties.
50. Upon entry of this Consent Decree by the Court, this Consent Decree
shall constitute the final judgment between DTSC and Settling Defendants.
The Court finds that there is no just reason for delay and therefore enters this
judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

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IT IS SO ORDERED, ADJUDGED, AND DECREED.

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Dated:

August 10 , 2017

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United States District Judge

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Party Signatures on pages to follow

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EXHIBIT A
Settling Defendants and Related Persons

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1. Settling Defendant Glasteel of Tennessee Inc., including all of its directors,
officers, predecessors, successors and assigns
2. Settling Defendant Semtech Corporation, including all of its directors,
officers, predecessors, successors and assigns, and its corporate affiliates
American Semiconductor Corporation and American Semiconductor, Inc.
3. Settling Defendant Unitrode Corporation, including all of its directors,
officers, predecessors, successors and assigns, and its corporate affiliate
Texas Instruments Incorporated

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