City of Colton v. American Promotional Events Inc et al
Filing
1822
CONSENT DECREE by Judge Philip S. Gutierrez Re: KTI Consent Decree. FINAL JUDGMENT. The United States and Settling Defendants agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest. The Court finds that there is no just reason for delay of entry of this Consent Decree, and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. (see document for further details) Related to: MOTION for Settlement Approval of Proposed Consent Decrees #1807 . (bm)
E-FILED: 07-02-2013
Link #1807
1
2
3
4
5
6
7
8
9
10
IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice
DEBORAH A. GITIN (CA State Bar #284947)
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
301 Howard Street, Suite 1050
San Francisco, California 94105
Telephone: (415) 744-6488
Facsimile: (415) 744-6476
deborah.gitin@usdoj.gov
11
12
Attorneys for Plaintiff, UNITED STATES OF AMERICA
13
14
15
16
17
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
CITY OF COLTON, a California
municipal corporation,
Plaintiff,
18
19
v.
20
21
22
23
24
AMERICAN PROMOTIONAL
EVENTS, INC., et al.
Defendants.
AND CONSOLIDATED ACTIONS
25
26
27
28
Consent Decree
CASE NO. ED CV 09-01864 PSG (SSx)
[Consolidated with Case Nos. CV 096630 PSG (SSx), CV 09-06632 PSG
(SSx), CV 09-07501 PSG (SSx), CV 0907508 PSG (SSx), CV 10-824 PSG
(SSx) and CV 05-01479 PSG (SSx)]
CONSENT DECREE
1
TABLE OF CONTENTS
2
3
I.
BACKGROUND .......................................................................................... 1
4
II.
JURISDICTION ........................................................................................... 2
5
III.
PARTIES BOUND ....................................................................................... 2
6
IV.
DEFINITIONS ............................................................................................. 2
7
V.
STATEMENT OF PURPOSE...................................................................... 8
8
VI.
SETTLEMENT OF RESPONSE COSTS.................................................... 8
9
VII. ACCESS AND INSTITUTIONAL CONTROLS...................................... 10
10
VIII. NOTICE TO SUCCESSORS-IN-TITLE AND TRANSFERS OF REAL
11
PROPERTY ............................................................................................. 14
12
IX.
ACCESS TO INFORMATION.................................................................. 15
13
X.
RETENTION OF RECORDS .................................................................... 17
14
XI.
DISPUTE RESOLUTION………………………………………………...19
15
XII. FAILURE TO COMPLY WITH CONSENT DECREE
16
17
18
19
OBLIGATIONS ....................................................................................... 23
XIII. COVENANTS AND RESERVATIONS OF RIGHTS BY
PLAINTIFFS ........................................................................................... 25
XIV. COVENANTS AND RESERVATIONS OF RIGHTS BY SETTLING
20
DEFENDANTS AND SETTLING FEDERAL AGENCIES ................. 28
21
XV. EFFECT OF SETTLEMENT/CONTRIBUTION ..................................... 33
22
XVI. NOTICES AND SUBMISSIONS .............................................................. 35
23
XVII. RETENTION OF JURISDICTION ........................................................... 36
24
XVIII. INTEGRATION/APPENDICES ............................................................. 36
25
XVIX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ........... 37
26
XX. FINAL JUDGMENT .................................................................................. 37
27
28
Consent Decree
i
1
I.
BACKGROUND
2
A.
3
Administrator of the United States Environmental Protection Agency (“EPA”),
4
filed a complaint in this matter pursuant to Sections 107 of the Comprehensive
5
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
6
§ 9607 (“CERCLA”), and Section 7003 of the Resource Conservation and
7
8
9
10
11
12
The United States of America (“United States”), on behalf of the
Recovery Act (“RCRA”), 42 U.S.C. § 6973, seeking injunctive relief and
reimbursement of response costs incurred by EPA and the United States
Department of Justice for response actions at the B.F. Goodrich Superfund Site in
Rialto, California. Other parties have also filed CERCLA and/or state law claims
in cases consolidated with the United States’ case (collectively, the “Consolidated
13
Federal Action”).
14
B.
15
and Rialto Concrete Products, Inc. (collectively, “Settling Defendants” as defined
16
in Section IV (Definitions)), are entities which are named as defendants in one or
17
more of the complaints referenced in Paragraph I.A. Settling Defendants do not
18
admit, and specifically deny: (1) any liability arising out of the transactions or
19
occurrences alleged in the claims or deemed by the Court in the Consolidated
20
Federal Action; and (2) that the release or threatened release of Waste Material at
21
or from the B.F. Goodrich Superfund Site or the RABSP (as defined in Section IV
22
(Definitions)) constitutes, contributed to, or caused an imminent or substantial
23
endangerment to the public health or welfare or the environment.
24
C.
25
any EPA existing or future removal or remedial decision and the actions to be
26
performed by Settling Defendants under this Consent Decree shall constitute a
27
response action taken or ordered by the President for which judicial review shall be
28
limited to the administrative record.
Defendants Ken Thompson, Inc.; KTI, Incorporated; Pipeline Carriers, Inc.;
Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j),
Consent Decree
1
1
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED:
2
3
4
5
6
7
II.
1.
JURISDICTION
This Court has jurisdiction over the subject matter of this action
pursuant to 28 U.S.C. §§ 1331 and 1345; 42 U.S.C. §§ 6973(a), 9607, and 9613(b);
and also has personal jurisdiction over Settling Defendants. Solely for the
purposes of this Consent Decree and the underlying complaints, Settling
8
Defendants waive all objections and defenses that they may have to jurisdiction of
9
the Court or to venue in this District. Settling Defendants shall not challenge entry
10
or the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce
11
this Consent Decree.
III.
12
13
2.
PARTIES BOUND
This Consent Decree is binding upon the United States and upon
14
Settling Defendants and their heirs, successors, and assigns. Any change in
15
ownership or corporate or other legal status, including, but not limited to, any
16
17
transfer of assets or real or personal property, shall in no way alter the status or
responsibilities of Settling Defendants under this Consent Decree.
18
IV.
19
20
3.
DEFINITIONS
Unless otherwise expressly provided in this Consent Decree, terms
21
used in this Consent Decree that are defined in CERCLA or in regulations
22
promulgated under CERCLA shall have the meaning assigned to them in CERCLA
23
or in such regulations. Whenever terms listed below are used in this Consent
24
Decree or in any appendix attached hereto, the following definitions shall apply:
25
“160-Acre Area” shall mean the area located in San Bernardino County that
26
is bounded by West Casa Grande Drive on the north, Locust Avenue on the east,
27
Alder Avenue on the west, and an extension of Summit Avenue on the south. The
28
160-Acre Area is depicted generally on the map included in Appendix A.
Consent Decree
2
1
“2010 Record of Decision” or “2010 ROD” shall mean the document
2
entitled “USEPA Superfund Interim Action Record of Decision” relating to the
3
Source Area Operable Unit, B.F. Goodrich Superfund Site, San Bernardino
4
County, CA, EPA ID: CAN000905945, dated September 30, 2010, signed by the
5
Assistant Director, Superfund Division, EPA Region 9, and all attachments thereto.
6
7
8
9
10
11
12
13
14
“Basin Contaminants” shall mean any type of perchlorate; trichloroethylene
(“TCE”); carbon tetrachloride; chloroform; or methylene chloride; including any
breakdown or “daughter” products of the foregoing.
“B.F. Goodrich Superfund Site” shall mean the B.F. Goodrich Superfund
Site in San Bernardino County, California, which includes the 160-Acre Area and
all areas where contamination from the 160-Acre Area otherwise comes to be
located.
“B.F. Goodrich Special Account” shall mean the special account, within the
15
EPA Hazardous Substances Superfund, established for the B.F. Goodrich
16
Superfund Site (Site/Spill ID Number 09JW) by EPA pursuant to Section
17
122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).
18
19
“CERCLA” shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.
20
“Certification of Completion of the Final Remedial Action” shall mean the
21
certification of completion of the remedial action associated with the Final Record
22
of Decision for the B.F. Goodrich Superfund Site.
23
“Consent Decree” shall mean this Consent Decree and all appendices
24
attached hereto. In the event of conflict between this Consent Decree and any
25
appendix, this Consent Decree shall control.
26
27
28
“Consolidated Federal Action” shall mean City of Colton v. American
Promotional Events, Inc., et al., Case No. ED CV 09-01864 PSG (SSx); Goodrich
Corporation v. Chung Ming Wong, et al., Case No. CV 09-6630 PSG (SSx);
Consent Decree
3
1
County of San Bernardino, et al., v. Tung Chun Co., et al., Case No. CV 09-06632
2
PSG (SSx); City of Rialto and Rialto Utility Authority v. United States Department
3
of Defense, et al., Case No. CV 09-7501 PSG (SSx); and Emhart Industries, Inc. v.
4
American Promotional Events, Inc.-West, et al., Case No. CV 09-07508 PSG
5
(SSx), all of which were consolidated pursuant to an order issued on January 20,
6
2010; and United States of America v. Goodrich Corporation, et al., Case No. 10-
7
8
9
10
11
12
13
14
00824 PSG (SSx), which was consolidated with the previously consolidated cases
pursuant to an order issued on June 3, 2010; and City of Colton v. American
Promotional Events, Inc., et al., Case No. ED CV 05-01479 PSG (SSx).
“County” shall mean the County of San Bernardino and any of its present,
former, or future subdivisions, departments, commissions, agencies, or
instrumentalities.
“County Property” shall mean the property known as the Mid Valley
15
Sanitary Landfill, which is currently owned by the County of San Bernardino,
16
including those areas currently leased to Robertson’s Ready Mix. The County
17
Property is bounded by Summit Avenue on the north, generally by Alder Avenue
18
on the east (until Alder Avenue terminates at or within the Robertson’s Ready Mix
19
leasehold), generally by the municipal boundaries of the Cities of Fontana and
20
Rialto on the west except for a strip of land located in the City of Fontana, and by
21
Casmalia Street on the south. The County Property is depicted generally on the
22
map included in Appendix A.
23
“Day” or “day” shall mean a calendar day unless expressly stated to be a
24
working day. The term “working day” shall mean a day other than a Saturday,
25
Sunday, or federal holiday. In computing any period of time under this Consent
26
27
28
Decree, where the last day would fall on a Saturday, Sunday, or federal holiday,
the period shall run until the close of business of the next working day.
“DOJ” shall mean the United States Department of Justice and its successor
Consent Decree
4
1
departments, agencies, or instrumentalities.
2
“Effective Date” shall mean the date upon which this Consent Decree is
3
entered by the District Court as recorded on the District Court docket, or, if the
4
District Court instead issues an order approving the Consent Decree, the date such
5
order is recorded on the District Court docket, whichever occurs first.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
“EPA” shall mean the United States Environmental Protection Agency and
its successor departments, agencies, or instrumentalities.
“EPA Hazardous Substance Superfund” shall mean the Hazardous
Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
“Federal Contract” means any prime contract, subcontract, or any other
agreement transferring value between a party to this Consent Decree and a
department, agency, or instrumentality of the United States, including but not
limited to contracts for goods or services, grants, and cooperative agreements. The
term “Federal Contract” does not include this Consent Decree.
“Final Record of Decision” shall mean the final Record of Decision (and all
attachments) for the B.F. Goodrich Superfund Site that will be signed by EPA in
the future, and after lodging of this Consent Decree.
“Final Remedial Action” shall mean activities associated with implementing
the Final Record of Decision.
“Further Settlor” shall mean any party to the Consolidated Federal Action
22
and not a signatory to this Consent Decree, with whom the United States, on behalf
23
of EPA, reaches or has reached a final settlement.
24
“Interest” shall mean interest at the rate specified for interest on investments
25
of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507,
26
compounded annually on October 1 of each year, in accordance with 42 U.S.C.
27
§ 9607(a). The applicable rate of interest shall be the rate in effect at the time the
28
interest accrues. The rate of interest is subject to change on October 1 of each
Consent Decree
5
1
year.
2
“Institutional Controls” or “ICs” shall mean Proprietary Controls and state
3
or local laws, regulations, ordinances, zoning restrictions, or other governmental
4
controls or notices that: (a) limit land, water, and/or resource use to minimize the
5
potential for human exposure to Waste Material at or in connection with the Site;
6
(b) limit land, water, and/or resource use to implement, ensure non-interference
7
with, or ensure the protectiveness of the remedial action; and/or (c) provide
8
information intended to modify or guide human behavior at or in connection with
9
the Site.
10
“KTI Property” shall mean those parcels of the land located in the 160-Acre
11
Area in the City of Rialto, County of San Bernardino, State of California with the
12
Assessor’s Parcel Numbers of APN 0239-192-05-0000, APN 0239-192-11-0000,
13
APN 0239-192-19-0000, APN 0239-192-09-0000, and APN 0239-192-20-0000, as
14
more specifically described and depicted in Appendix B to this Consent Decree.
15
“Paragraph” shall mean a portion of this Consent Decree identified by an
16
Arabic numeral or an upper or lower case letter.
17
“Parties” shall mean the United States and the Settling Defendants.
18
“Plaintiffs” shall mean the United States, on behalf of EPA.
19
“Proprietary Controls” shall mean easements or covenants running with the
20
21
22
23
24
25
land that: (a) limit land, water, or resource use and/or provide access rights and (b)
are created pursuant to common law or statutory law by an instrument that is
recorded by the owner in the appropriate land records office.
“RABSP” shall mean the parcel of land originally containing the former
Rialto Ammunition Backup Storage Point, located in San Bernardino County,
26
California. The 160-Acre Area is within the geographic area of the RABSP. The
27
RABSP is depicted generally on the map included in Appendix A.
28
“RABSP Site” shall mean the RABSP and all areas where contamination
Consent Decree
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
from the RABSP otherwise comes to be located.
“RCRA” shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C.
§§ 6901 et seq. (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 Ken Thompson, Inc.; KTI, Incorporated;
Pipeline Carriers, Inc.; and Rialto Concrete Products, Inc. and includes past and
current officers and employees of these entities acting in the course and scope of
their employment, as well as successors and assigns of these entities.
“Settling Federal Agencies” shall mean any federal agency, department, or
instrumentality named or alleged to be liable for contamination in the Consolidated
Federal Action, including but not limited to the United States Army, the
Department of the Navy, the United States Air Force, the United States
Department of Defense, the Farm Credit Administration, the United States
Customs and Border Protection, the National Aeronautics and Space
Administration, the United States Department of Energy, Lawrence Livermore
National Laboratory, the United States Forest Service, and any other federal entity
that is alleged to have transported, disposed of, or released any Waste Material
within the area encompassed by the RABSP Area, as depicted in Appendix A, and
any of their predecessors or successors.
“State” shall mean the State of California.
“Stonehurst Property” shall mean the approximate 5-acre property in the
24
County of San Bernardino, County APNs 1133-07-105, 1133-07-106, and 1133-
25
07-107, collectively, located at 2298 West Stonehurst Drive, Rialto, California.
26
The Stonehurst Property is depicted generally on the map included in Appendix A.
27
28
Consent Decree
7
1
“Transfer” shall mean shall mean to sell, assign, convey, lease, mortgage, or
2
grant a security interest in, or where used as a noun, a sale, assignment,
3
conveyance, or other disposition of any interest by operation of law or otherwise.
4
“United States” shall mean the United States of America and each
5
department, agency, and instrumentality of the United States, specifically including
6
EPA and the Settling Federal Agencies.
7
8
9
10
11
12
13
“Waste Material” shall mean: (a) any hazardous substance under Section
101(14) of CERCLA, 42 U.S.C. § 9601(14); (b) any pollutant or contaminant
under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (c) any “solid waste”
under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); and (4) any “hazardous
waste” under California law, including California Health & Safety Code §§ 25100
et seq.
14
“West Side Area” shall mean the County Property and the Stonehurst
15
Property. The West Side Area is depicted generally on the map included in
16
Appendix A.
17
“West Side Site” shall mean the West Side Area and all areas where TCE
18
and perchlorate contamination from the West Side Area otherwise comes to be
19
located.
20
21
22
23
V.
4.
STATEMENT OF PURPOSE
By entering into this Consent Decree, the mutual objectives of the
Parties are to avoid difficult and prolonged litigation and resolve claims as set forth
herein.
24
VI.
25
SETTLEMENT OF RESPONSE COSTS
26
5.
27
Settling Defendants shall pay two million eight hundred thousand dollars
28
Payments
($2,800,000) to the United States on behalf of EPA in three payments, on the
Consent Decree
8
1
following schedule and in accordance with payment instructions as directed in
2
Paragraph 6, below. The total amount of each payment to be paid by Settling
3
Defendants pursuant to this Section shall be deposited by EPA in the B.F.
4
Goodrich Superfund Site Special Account (Site/Spill ID Number 09JW) to be
5
retained and used to conduct or finance response actions at or in connection with
6
the Site, which may include transferring all or some of those payments to a
7
8
disbursement special account associated with the Final Remedial Action, and/or to
be transferred by EPA to the EPA Hazardous Substance Superfund.
9
a.
10
11
12
Within ten (10) working days after the Effective Date, or ten
(10) working days after receiving payment instructions from the United States on
behalf of EPA, whichever is later, Settling Defendants shall pay nine hundred
13
thirty-three thousand three hundred thirty-four dollars ($933,334) to the United
14
States.
15
b.
Within one (1) year after the Effective Date, Settling
16
Defendants shall pay to the United States nine hundred thirty-three thousand three
17
hundred thirty-three dollars ($933,333), plus Interest on that amount calculated
18
from the 30th Day after the Effective Date until the date of the payment. The
19
United States shall provide Settling Defendants with information on the amount of
20
Interest due thirty (30) Days before the due date for this payment.
21
c.
Within two (2) years after the Effective Date, Settling
22
Defendants shall pay to the United States nine hundred thirty-three thousand three
23
hundred thirty-three dollars ($933,333), plus Interest on that amount calculated
24
from the 30th Day after the Effective Date until the date of the payment. The
25
United States shall provide Settling Defendants with information on the amount of
26
Interest due thirty (30) Days before the due date for this payment.
27
28
The payments to be made by Settling Defendants set forth above are for
Consent Decree
9
1
reimbursement and/or payment of response costs.
2
6.
3
Payment Instructions
a.
Any payments due the United States on behalf of EPA pursuant
4
to Section VI (Settlement of Response Costs) shall be made in accordance with
5
instructions provided to such Settling Defendant(s) by EPA or the Financial
6
Litigation Unit (“FLU”) of the United States Attorney’s Office for the Central
7
District of California.
8
9
10
11
12
13
b.
At the time of each installment payment required by Paragraph
5, Settling Defendants shall send notice to DOJ and EPA that payment has been
made in accordance with Section XVI (Notices and Submissions), and to the EPA
Cincinnati Finance Office by email at acctsreceivable.cinwd@epa.gov, or by mail
to:
EPA Cincinnati Finance Office
26 Martin Luther King Drive
Cincinnati, Ohio 45268
14
15
16
17
Such notice shall reference the Site/Spill ID Number 09JW, and DOJ Case
Number 90-11-2-09952.
c.
18
The total amount to be paid to the United States on behalf of
19
EPA pursuant to Section VI (Settlement of Response Costs) shall be used to
20
conduct or finance response actions at or in connection with the Site, which may
21
include transferring all or some of those payments to a disbursement special
22
account associated with the Final Remedial Action, and/or shall be transferred by
23
EPA to the EPA Hazardous Substance Superfund.
24
VII.
ACCESS AND INSTITUTIONAL CONTROLS
25
26
27
28
7.
Settling Defendants shall:
a.
commencing on the date of lodging of this Consent Decree, and
at no charge, provide the United States and its representatives (including EPA and
Consent Decree
10
1
its contractors), and any PRPs conducting response actions at the Site under EPA
2
oversight (including, without limitation, the Settling Work Defendant in any other
3
consent decree the United States on behalf of EPA has entered into or shall enter
4
into the Consolidated Federal Action, as well as their agents and contractors), with
5
access at all reasonable times, and, where feasible, with three (3) working days’
6
notice, to the KTI Property for the purpose of conducting any response actions
7
related to the Site including, but not limited to, the following activities:
8
9
10
(1)
Monitoring of investigation, removal, remedial, or other
response actions at the Site;
(2)
Verifying any data or information submitted to the
(3)
Conducting investigations relating to contamination at or
15
(4)
Obtaining samples;
16
(5)
Assessing the need for, planning, or implementing
11
12
United States;
13
14
17
near the Site;
additional response actions at or near the Site;
(6)
18
Inspecting and copying records, operating logs, contracts,
19
or other documents maintained or generated by Settling Defendants or their agents,
20
consistent with Section IX (Access to Information);
(7)
21
22
Assessing Settling Defendants’ compliance with this
Consent Decree;
23
(8) Determining whether the Site, the KTI Property, or other
24
property is being used in a manner that is prohibited or restricted, or that may need
25
to be prohibited or restricted, by or pursuant to this Consent Decree;
26
27
28
(9) (a) Implementing removal or remedial actions as selected
by EPA, including but not limited to capping of the KTI Property or Site, or any
portion(s) thereof, and implementing, monitoring, maintaining, reporting on, and
Consent Decree
11
1
enforcing any Institutional Controls; (b) installing, monitoring, and maintaining
2
liquid, groundwater, soil gas and other wells or probes; and (c)installing,
3
monitoring, and operating any monitoring and extraction system, including liquids
4
and gas extraction systems.
5
b.
6
7
8
9
10
11
12
commencing on the date of lodging of this Consent Decree,
refrain from using the KTI Property in any manner that would interfere with or
adversely affect the implementation, integrity, or protectiveness of the remedial
measures implemented pursuant to the 2010 ROD. Also commencing on the date
of lodging of this Consent Decree, Settling Defendants shall provide EPA thirty
(30) Days’ notice if Settling Defendants intend to disturb subsurface soils or
sediments six (6) or more inches below ground surface in the portions of the KTI
13
Property identified in Appendix C. If, in the future, EPA issues any removal or
14
remedial decision document(s) related to the Site, Settling Defendants hereby agree
15
to refrain from using the KTI Property, or any portion thereof specifically
16
identified in any future removal or remedial decision, in any manner that would
17
interfere with or adversely affect the implementation, integrity, or protectiveness of
18
those future measures to be implemented at the Site. Settling Defendants also
19
hereby agree to implement any Institutional Control(s), including but not limited to
20
land or water use restrictions, that may be selected by EPA for the Site or the KTI
21
Property, or any portion(s) thereof, in any removal or remedial action affecting the
22
KTI Property, or any portion(s) thereof.
23
c.
execute and record in the appropriate land records office
24
Proprietary Controls that: (i) grant a right of access to conduct any activity
25
regarding the Consent Decree and any future removal or remedial action
26
concerning the Site including, but not limited to, those activities listed in Paragraph
27
7.a; and (ii) grant the right to enforce any land/water use restrictions required by
28
Paragraph 7.b, including, but not limited to, any land/water use restrictions listed in
Consent Decree
12
1
any future Institutional Control Implementation and Assurance Plan, as further
2
specified in this Paragraph 7.c. The Proprietary Controls shall be granted to one or
3
more of the following persons, as determined by EPA: (i) the United States, on
4
behalf of EPA, and its representatives; (ii) the State and its representatives; (iii)
5
any Settling Work Defendant(s) in any other consent decree the United States on
6
behalf of EPA has entered into or shall enter into in the Consolidated Federal
7
Action and their representatives; and/or (iv) other appropriate grantees. The
8
Proprietary Controls, other than those granted to the United States, shall include a
9
designation that EPA (and/or the State as appropriate) is a third-party beneficiary,
10
allowing EPA to maintain the right to enforce the Proprietary Controls without
11
acquiring an interest in real property. If any Proprietary Controls are granted to
12
Settling Defendants pursuant to this Paragraph 7.c, then such Settling Defendants
13
shall monitor, maintain, report on, and enforce such Proprietary Controls.
14
8.
If EPA determines that Institutional Controls on the KTI Property,
15
including, but not limited to, environmental restriction covenants under state or
16
local laws, regulations, ordinances, or other governmental controls, are needed to
17
implement any removal or remedial action selected by EPA, ensure the integrity
18
and protectiveness thereof, ensure non-interference therewith, or otherwise protect
19
public health or welfare and the environment, Settling Defendants shall cooperate
20
with EPA's efforts to secure such Institutional Controls and/or governmental
21
controls.
22
9.
Notwithstanding any provision of this Consent Decree, the United
23
States retains all of its information gathering, inspection, and access authorities and
24
rights, as well as all of its rights to require land use restrictions, including
25
enforcement authorities related thereto, under CERCLA, RCRA, and any other
26
applicable statute or regulations.
27
28
10.
Modification of the Land Use Restrictions
a.
Consent Decree
If EPA determines that modifications or additions to the
13
1
land/water use restrictions are necessary to carry out and maintain the effectiveness
2
of any removal or remedial action, EPA may require that such modifications or
3
additions be incorporated in the land/water use restrictions, provided, however, that
4
a modification or addition may only be required pursuant to this Paragraph to the
5
extent that it is consistent with the scope of the removal or remedial action selected
6
by EPA.
7
8
9
10
11
b.
determined by EPA to be necessary pursuant to this Paragraph, they may seek
dispute resolution pursuant to Section XI (Dispute Resolution), Paragraph 23
(Record Review). The land/water use restrictions shall be modified in accordance
with final resolution of the dispute.
12
13
14
15
c.
Settling Defendants shall implement any land/water use
restrictions required by any modifications or additions incorporated in the
land/water use restrictions in accordance with this Paragraph.
d.
16
17
If Settling Defendants object to any modification or addition
Nothing in this Paragraph shall be construed to limit EPA's
authority to require performance of further response actions as otherwise provided
18
in this Consent Decree.
19
VIII. NOTICE TO SUCCESSORS-IN-TITLE AND TRANSFERS OF REAL
20
PROPERTY
21
11.
Settling Defendant shall, at least sixty (60) days prior to any Transfer
22
of any real property located at the Site, give written notice: (1) to the transferee
23
regarding the Consent Decree and any Institutional Controls regarding the real
24
property; and (2) to EPA and the State regarding the proposed Transfer, including
25
the name and address of the transferee and the date on which the transferee was
26
27
28
notified of the Consent Decree and any Institutional Controls.
12.
Settling Defendants may Transfer any real property located at the Site
only if: (1) any Proprietary Controls required by Paragraph 7.c have been recorded
Consent Decree
14
1
with respect to the real property; or (2) Settling Defendants have obtained an
2
agreement from the transferee, enforceable by Settling Defendants and the United
3
States, to (i) allow access and restrict land/water use, consistent with Paragraphs
4
7.a and 7.b, (ii) record any Proprietary Controls on the real property, consistent
5
with Paragraph 7.c, and (iii) subordinate its rights to any such Proprietary Controls,
6
consistent with Paragraph 7.c, and EPA has approved the agreement in writing. If,
7
8
9
10
11
12
after a Transfer of the real property, the transferee fails to comply with the
agreement provided for in this Paragraph 12, Settling Defendants shall take all
reasonable steps to obtain the transferee’s compliance with such agreement. The
United States may seek the transferee’s compliance with the agreement and/or
assist Settling Defendants in obtaining compliance with the agreement. Settling
13
Defendants shall reimburse the United States for all costs incurred, direct or
14
indirect, by the United States regarding obtaining compliance with such agreement,
15
including, but not limited to, the cost of attorney time.
16
13.
In the event of any Transfer of real property located at the Site, unless
17
the United States otherwise consents in writing, Settling Defendants shall continue
18
to comply with their obligations under the Consent Decree, including, but not
19
limited to, their obligation to provide and/or secure access, to implement, maintain,
20
monitor, and report on Institutional Controls, and to abide by such Institutional
21
Controls.
22
IX.
ACCESS TO INFORMATION
23
24
14.
Settling Defendants shall provide to EPA and the State, upon request,
25
copies of all records, reports, documents, and other information (including records,
26
reports, documents, and other information in electronic form) (hereinafter referred
27
to as “Records”) within their possession or control or that of their contractors or
28
agents relating to activities at the Site or to the implementation of this Consent
Consent Decree
15
1
Decree, including, but not limited to, sampling, analysis, chain of custody records,
2
manifests, trucking logs, receipts, reports, sample traffic routing, correspondence,
3
or other documents or information regarding the KTI Property or the Site. Settling
4
Defendants shall also make available to EPA and the State, for purposes of
5
investigation, information gathering, or testimony, their employees, agents, or
6
representatives with knowledge of relevant facts concerning the Site.
7
8
9
10
11
12
15.
Business Confidential and Privileged Documents
a.
Settling Defendants may assert business confidentiality claims
covering part or all of the Records submitted to Plaintiffs under this Consent
Decree to the extent permitted by and in accordance with Section 104(e)(7) of
CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Records determined
13
to be confidential by EPA will be afforded the protection specified in 40 C.F.R.
14
Part 2, Subpart B. If no claim of confidentiality accompanies Records when they
15
are submitted to EPA and the State, or if EPA has notified Settling Defendants that
16
the Records are not confidential under the standards of Section 104(e)(7) of
17
CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such
18
Records without further notice to Settling Defendants.
19
b.
Settling Defendants may assert that certain Records are
20
privileged under the attorney-client privilege or any other privilege recognized by
21
federal law. If Settling Defendants assert such a privilege in lieu of providing
22
Records, they shall provide Plaintiffs with the following: (1) the title of the
23
Record; (2) the date of the Record; (3) the name, title, affiliation (e.g., company or
24
firm), and address of the author of the Record; (4) the name and title of each
25
addressee and recipient; (5) a description of the contents of the Record; and (6) the
26
27
28
privilege asserted by Settling Defendants. If a claim of privilege applies only to a
portion of a Record, the Record shall be provided to the United States in redacted
form to mask the privileged portion only. Settling Defendants shall retain all
Consent Decree
16
1
Records that they claim to be privileged until the United States has had a
2
reasonable opportunity to dispute the privilege claim and any such dispute has
3
been resolved in the Settling Defendants’ favor.
4
c.
No Records created or generated pursuant to the requirements
5
of this Consent Decree shall be withheld from the United States or the State on the
6
grounds that they are privileged or confidential.
7
8
9
10
11
16.
respect to any data, including, but not limited to, all sampling, analytical,
monitoring, hydrogeologic, scientific, chemical, or engineering data, or any other
documents or information evidencing conditions at or around the Site.
X.
12
13
No claim of confidentiality or privilege shall be made with
17.
RETENTION OF RECORDS
By signing this Consent Decree Settling Defendants hereby severally
14
certify that they have as of February 29, 2012, produced in the Consolidated
15
Federal Action all non-identical and non-privileged copies of records, reports, or
16
information in their possession or control (if any) that relate in any manner to
17
response actions taken at the B.F. Goodrich Superfund Site or the liability of any
18
person under CERCLA with respect to the B.F. Goodrich Superfund Site. Except
19
for those documents that have been produced in the Consolidated Federal Action
20
as described in the preceding sentence, each Settling Defendant shall preserve and
21
22
23
retain all non-identical copies of records, reports, or information (hereinafter
referred to as “Records”) now in its possession or control, or that come into its
possession or control, that relate in any manner to response actions taken at the
24
25
26
27
28
B.F. Goodrich Superfund Site or the RABSP Site, or its or any other person’s
liability under CERCLA with respect to the B.F. Goodrich Superfund Site or
RABSP Site, until ten (10) years after EPA’s Certification of Completion of the
Final Remedial Action. Each Settling Defendant must also retain, and instruct its
Consent Decree
17
1
contractors and agents to preserve, for the same period of time specified above, all
2
non-identical copies of the last draft or final version of any Records (including
3
Records in electronic form) now in its possession or control or that come into its
4
possession or control that relate in any manner to the implementation of
5
Institutional Controls, provided, however, that each Settling Defendant (and its
6
contractors and agents) must retain, in addition, copies of all data generated during
7
8
9
10
11
12
the implementation of Institutional Controls, if any, that are not contained in the
aforementioned Records required to be retained. Each of the above record
retention requirements shall apply regardless of any corporate retention policy to
the contrary.
18. After the conclusion of the document retention period in the preceding
13
Paragraph, each Settling Defendant shall notify EPA and DOJ at least ninety (90)
14
days prior to the destruction of any such Records, and, upon request by EPA or
15
DOJ, each Settling Defendant shall deliver any such Records to EPA. Each
16
Settling Defendant may assert that certain Records are privileged under the
17
attorney-client privilege or any other privilege recognized by federal law. If a
18
Settling Defendant asserts such a privilege in lieu of providing Records, it shall
19
provide Plaintiffs with the following: (a) the title of the Record; (b) the date of the
20
Record; (c) the name, title, affiliation (e.g., company or firm), and address of the
21
author of the Record; (d) the name and title of each addressee and recipient; (e) a
22
description of the subject of the Record; and (f) the privilege asserted. If a claim of
23
privilege applies only to a portion of a Record, the Record shall be provided to the
24
United States in redacted form to mask the privileged portion only. Such Settling
25
Defendant shall retain all Records that it claims to be privileged until the United
26
27
28
States has had a reasonable opportunity to dispute the privilege claim and any such
dispute has been resolved in such Settling Defendant’s favor. However, no
Records created or generated pursuant to the requirements of this Consent Decree
Consent Decree
18
1
or any other settlement with EPA pertaining to the RABSP Site shall be withheld
2
from the United States on the grounds that they are privileged or confidential.
3
19.
Each Settling Defendant certifies individually that, to the best of its
4
knowledge and belief, after thorough inquiry, it has not altered, mutilated,
5
discarded, destroyed, or otherwise disposed of any Records (other than identical
6
copies) relating to its potential liability regarding the Site since the earlier of
7
8
9
10
11
12
notification of potential liability by the United States or the State or the filing of
suit against it regarding the Site and that it has fully complied with any and all
EPA and State requests for information regarding the Site pursuant to Sections
104(e) and 122(e) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section
3007 of RCRA, 42 U.S.C. § 6927, and state law.
XI.
13
14
20.
DISPUTE RESOLUTION
Unless otherwise expressly provided for in this Consent Decree, the
15
dispute resolution procedures of this Section shall be the exclusive mechanism to
16
resolve disputes regarding this Consent Decree. However, the procedures set forth
17
in this Section shall not apply to actions by the United States to enforce obligations
18
of Settling Defendants that have not been disputed in accordance with this Section.
19
21.
Any dispute regarding this Consent Decree shall in the first instance
20
be the subject of informal negotiations between the parties to the dispute. The
21
period for informal negotiations shall not exceed twenty (20) days from the time
22
the dispute arises, unless it is modified by written agreement of the parties to the
23
dispute. The dispute shall be considered to have arisen when one party sends the
24
other parties a written Notice of Dispute.
25
26
22.
Statements of Position
a.
In the event that the parties cannot resolve a dispute by informal
27
negotiations under the preceding Paragraph, then the position advanced by EPA
28
shall be considered binding unless, within thirty (30) days after the conclusion of
Consent Decree
19
1
the informal negotiation period, Settling Defendants invoke the formal dispute
2
resolution procedures of this Section by serving on the United States a written
3
Statement of Position on the matter in dispute, including, but not limited to, any
4
factual data, analysis, or opinion supporting that position and any supporting
5
documentation relied upon by Settling Defendants. The Statement of Position
6
shall specify Settling Defendants’ position as to whether formal dispute resolution
7
should proceed under Paragraph 23 (Record Review) or 24.
8
9
b.
Within thirty (30) days after receipt of Settling Defendants’
Statement of Position, EPA will serve on Settling Defendants its Statement of
10
Position, including, but not limited to, any factual data, analysis, or opinion
11
supporting that position and all supporting documentation relied upon by EPA.
12
EPA’s Statement of Position shall include a statement as to whether formal dispute
13
resolution should proceed under Paragraph 23 (Record Review) or Paragraph 24.
14
Within thirty (30) days after receipt of EPA’s Statement of Position, Settling
15
Defendants may submit a Reply.
16
c.
If there is disagreement between EPA and Settling Defendants
17
as to whether dispute resolution should proceed under Paragraph 23 (Record
18
Review) or 24, the parties to the dispute shall follow the procedures set forth in the
19
paragraph determined by EPA to be applicable. However, if Settling Defendants
20
ultimately appeal to the Court to resolve the dispute, the Court shall determine
21
which paragraph is applicable in accordance with the standards of applicability set
22
forth in Paragraphs 23 and 24.
23
23.
Record Review. Formal dispute resolution for disputes pertaining to
24
the selection or adequacy of any response action and all other disputes that are
25
accorded review on the administrative record under applicable principles of
26
administrative law shall be conducted pursuant to the procedures set forth in this
27
Paragraph. For purposes of this Paragraph, the adequacy of any response action
28
includes, without limitation, the adequacy or appropriateness of plans, procedures
Consent Decree
20
1
to implement plans, or any other items requiring approval by EPA under this
2
Consent Decree, and the adequacy of the performance of response actions taken
3
pursuant to this Consent Decree. Nothing in this Consent Decree shall be
4
construed to allow any dispute by Settling Defendants regarding the validity of the
5
ROD’s provisions.
6
a.
An administrative record of the dispute shall be maintained by
7
EPA and shall contain all statements of position, including supporting
8
documentation, submitted pursuant to this Section. Where appropriate, EPA may
9
allow submission of supplemental statements of position by the parties to the
10
11
dispute.
b.
The Director of the Superfund Division, EPA Region IX, will
12
issue a final administrative decision resolving the dispute based on the
13
administrative record described in Paragraph 23.a. This decision shall be binding
14
upon Settling Defendants, subject only to the right to seek judicial review pursuant
15
to Paragraphs 23.c and 23.d.
16
c.
Any administrative decision made by EPA pursuant to
17
Paragraph 23.b shall be reviewable by this Court, provided that a motion for
18
judicial review of the decision is filed by Settling Defendants with the Court and
19
served on all Parties within ten (10) days after receipt of EPA’s decision. The
20
motion shall include a description of the matter in dispute, the efforts made by the
21
parties to resolve it, the relief requested, and the schedule, if any, within which the
22
dispute must be resolved to ensure orderly implementation of this Consent Decree.
23
The United States may file a response to Settling Defendants’ motion.
24
d.
In proceedings on any dispute governed by this Paragraph,
25
Settling Defendants shall have the burden of demonstrating that the decision of the
26
Superfund Division Director is arbitrary and capricious or otherwise not in
27
accordance with law. Judicial review of EPA’s decision shall be on the
28
administrative record compiled pursuant to Paragraph 23.a.
Consent Decree
21
1
24.
Formal dispute resolution for disputes that neither pertain to the
2
selection or adequacy of any response action nor are otherwise accorded review on
3
the administrative record under applicable principles of administrative law, shall be
4
governed by this Paragraph.
5
a.
Following receipt of Settling Defendants’ Statement of Position
6
submitted pursuant to Paragraph 22, the Director of the Superfund Division, EPA
7
Region IX, will issue a final decision resolving the dispute. The Superfund
8
Division Director’s decision shall be binding on Settling Defendants unless, within
9
ten (10) days after receipt of the decision, Settling Defendants file with the Court
10
and serve on the parties a motion for judicial review of the decision setting forth
11
the matter in dispute, the efforts made by the parties to resolve it, the relief
12
requested, and the schedule, if any, within which the dispute must be resolved to
13
ensure orderly implementation of the Consent Decree. The United States may file
14
a response to Settling Defendants’ motion.
15
b.
Notwithstanding Paragraph C (CERCLA Section 113(j) Record
16
Review of Response Actions) of Section I (Background), judicial review of any
17
dispute governed by this Paragraph shall be governed by applicable principles of
18
law.
19
25.
The invocation of formal dispute resolution procedures under this
20
Section shall not extend, postpone, or affect in any way any obligation of Settling
21
Defendants under this Consent Decree, not directly in dispute, unless EPA or the
22
Court agrees otherwise. Stipulated penalties with respect to the disputed matter
23
shall continue to accrue but payment shall be stayed pending resolution of the
24
dispute as provided in Paragraph 27. Notwithstanding the stay of payment,
25
stipulated penalties shall accrue from the first day of noncompliance with any
26
applicable provision of this Consent Decree. In the event that Settling Defendants
27
do not prevail on the disputed issue, stipulated penalties shall be assessed and paid
28
as provided in Paragraph 27 (Stipulated Penalties).
Consent Decree
22
1
2
3
4
5
6
XII. FAILURE TO COMPLY WITH CONSENT DECREE OBLIGATIONS
26.
Interest on Payments and Accelerated Payments. If Settling
Defendants fail to make any payment required by Section VI (Settlement of
Response Costs) by the required due date, Interest shall accrue on the unpaid
balance owed by Settling Defendants from the date payment is due through the
date of payment, and all remaining installment payments and all accrued Interest
7
8
9
10
shall become due immediately upon such failure. Interest and stipulated penalties
shall continue to accrue on any unpaid amounts until the total amount due has been
received. However, if Settling Defendants cure a delinquency by making a late
11
payment to EPA within thirty (30) days of the required due date, including all of
12
the then-accrued Interest and stipulated penalties as provided for in Paragraph 27,
13
below, then further stipulated penalties shall cease to run as of the date the late
14
payment is received, and Settling Defendants may make future payments to EPA
15
pursuant to the schedule provided in Section VI (Settlement of Response Costs),
16
above.
17
18
27.
Stipulated Penalties
a.
If any amounts due the United States are not paid by their
19
respective required date(s), Settling Defendants shall be in violation of this
20
Consent Decree and shall pay, as a stipulated penalty, in addition to the Interest
21
required by Paragraph 26, five thousand dollars ($5,000) per violation per day to
22
the United States for each day such payment is late.
23
24
25
26
27
28
b.
If Settling Defendants do not comply with the access and/or
Institutional Controls provisions of Section VII, Settling Defendants shall be in
violation of this Consent Decree and shall pay to the United States, as a stipulated
penalty, five thousand dollars ($5,000) per violation per day of such
noncompliance.
Consent Decree
23
1
c.
Stipulated penalties are due and payable within thirty (30) days
2
after the date of the demand for payment of the penalty or penalties. All payments
3
of stipulated penalties owed to the United States under this Paragraph shall be
4
identified as “stipulated penalties” and shall be made in accordance with
5
instructions provided to such Settling Defendant(s) by the United States. Such
6
payment shall reference Site/Spill ID Number 09JW, and DOJ Case Number 90-
7
8
9
10
11
12
13
11-2-09952. At the time of payment of a stipulated penalty for nonpayment to the
United States as described in Paragraph 27.a, the non-paying or late-paying
Settling Defendant(s) shall send notice to DOJ and EPA that payment has been
made in accordance with Section XVI (Notices and Submissions). Such notice
shall reference Site/Spill ID Number 09JW, and DOJ Case Number 90-11-209952.
d.
14
Penalties shall accrue as provided in this Paragraph regardless
15
of whether the United States has notified Settling Defendant(s) of the violation or
16
made a demand for payment, but need only be paid upon demand. All penalties
17
shall begin to accrue on the day after payment is due and shall continue to accrue
18
through the date of payment. Nothing in this Consent Decree shall prevent the
19
simultaneous accrual of separate penalties for separate violations of this Consent
20
Decree.
21
28.
Payments made under this Section shall be in addition to any other
22
remedies or sanctions available to the United States by virtue of Settling
23
Defendants’ failure to comply with the requirements of this Consent Decree.
24
25
26
27
28
29.
Notwithstanding any other provision of this Section, the United States
may, in its unreviewable discretion, waive payment of any portion of the stipulated
penalties due to the United States pursuant to this Consent Decree. Payment of
stipulated penalties shall not excuse Settling Defendants from payment as required
by Section VI (Settlement of Response Costs) or from performance of any other
Consent Decree
24
1
requirements of this Consent Decree.
2
XIII. COVENANTS AND RESERVATIONS OF RIGHTS BY PLAINTIFFS
3
4
5
6
7
30.
Covenants by the United States on Behalf of EPA. Except as
specifically provided in Paragraphs 31-34, the United States on behalf of EPA
covenants not to sue or to take administrative action against Settling Defendants
pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a)
8
and Section 7003 of RCRA, 42 U.S.C. § 6973, relating to the B.F. Goodrich
9
Superfund Site. With respect to present and future response costs, these covenants
10
shall take effect upon receipt by Plaintiffs of all amounts required by Paragraph 5
11
and any Interest or stipulated penalties due thereon under Section XII (Failure to
12
Comply with Consent Decree Obligations). These covenants are conditioned upon
13
the satisfactory performance by Settling Defendants of their obligations under this
14
Consent Decree, including but not limited to, payment of all amounts due under
15
Section VI (Settlement of Response Costs), and any Interest or stipulated penalties
16
due thereon under Section XII (Failure to Comply with Consent Decree
17
Obligations). These covenants extend only to Settling Defendants and do not
18
extend to any other person.
19
20
21
22
23
31.
United States’ Pre-certification Reservations. Notwithstanding any
other provision of this Consent Decree, the United States reserves, and this
Consent Decree is without prejudice to, the right to institute proceedings in this
action or in a new action, or to issue an administrative order, seeking to compel
Settling Defendant(s):
24
1)
25
26
Goodrich Superfund Site; or
2)
27
28
to perform further response actions relating to the B.F.
to reimburse the United States for additional costs of
response if, prior to Certification of Completion of the Final Remedial Action for
Consent Decree
25
1
the B.F. Goodrich Superfund Site:
2
3
i.
conditions at the B.F. Goodrich Superfund Site,
previously unknown to EPA, are discovered, or
4
ii.
information, previously unknown to EPA, is
5
received, in whole or in part,
6
and EPA determines that these previously unknown conditions or information
7
8
9
10
11
12
together with any other relevant information indicates that the B.F. Goodrich
Superfund Site Final Remedial Action is not protective of human health or the
environment.
32.
United States’ Post-certification Reservations. Notwithstanding any
other provision of this Consent Decree, the United States reserves, and this
13
Consent Decree is without prejudice to, the right to institute proceedings in this
14
action or in a new action, or to issue an administrative order, seeking to compel
15
Settling Defendant(s):
1)
16
17
to perform further response actions relating to the B.F.
Goodrich Superfund Site; or
2)
18
to reimburse the United States for additional costs of
19
response if, subsequent to Certification of Completion of the Final Remedial
20
Action for the B.F. Goodrich Superfund Site:
21
22
i.
conditions at the B.F. Goodrich Superfund Site,
previously unknown to EPA, are discovered, or
23
ii.
information, previously unknown to EPA, is
24
received, in whole or in part,
25
and EPA determines that these previously unknown conditions or information
26
27
28
together with any other relevant information indicates that the B.F. Goodrich
Superfund Site Final Remedial Action is not protective of human health or the
environment.
Consent Decree
26
1
33.
For purposes of Paragraph 31, the information and the conditions
2
known to EPA shall include only that information and those conditions known to
3
EPA as of the date the Final Record of Decision is signed and set forth in the Final
4
Record of Decision and the administrative record supporting the Final Record of
5
Decision. For purposes of Paragraph 32, the information and the conditions known
6
to EPA shall include only that information and those conditions known to EPA as
7
8
9
10
11
12
13
14
of the date of Certification of Completion of the Final Remedial Action and set
forth in the Final Record of Decision, the administrative record supporting the
Final Record of Decision, the post-Final Record of Decision administrative record,
or in any information required to be submitted to EPA during the conduct of the
remedial design and remedial action, prior to the Certification of Completion of the
Final Remedial Action.
34.
General Reservations of Rights. The United States on behalf of EPA
15
and the federal natural resource trustee reserves, and this Consent Decree is
16
without prejudice to, all rights against Settling Defendants with respect to all
17
matters not expressly included within the Covenants by the United States in
18
Paragraph 30. Notwithstanding any other provision of this Consent Decree, the
19
United States on behalf of EPA and the federal natural resource trustee reserves all
20
rights against Settling Defendants with respect to:
21
22
23
a.
claims based on a failure by Settling Defendants to meet their
requirements under this Consent Decree;
b.
liability arising from the past, present, or future disposal,
24
release, or threat of release of Waste Material outside of the B.F. Goodrich
25
Superfund Site;
26
27
28
c.
liability based on the ownership or operation of any portion of
the B.F. Goodrich Superfund Site by Settling Defendants when such ownership or
operation commences after signature of this Consent Decree and does not arise
Consent Decree
27
1
solely out of performance of the Work;
2
d.
liability based on Settling Defendants’ transportation,
3
treatment, storage, or disposal, or the arrangement for the transportation, treatment,
4
storage, or disposal of Waste Material at or in connection with the B.F. Goodrich
5
Superfund Site, other than as provided in the 2010 ROD, the Work, or otherwise
6
ordered by EPA, after signature of this Consent Decree;
7
8
e.
natural resources, and for the costs of any natural resource damage assessments;
9
f.
11
criminal liability;
g.
10
12
liability for damages for injury to, destruction of, or loss of
liability for violations of federal or state law which occur
during or after implementation of the Work.
13
XIV. COVENANTS AND RESERVATIONS OF RIGHTS BY SETTLING
14
DEFENDANTS AND SETTLING FEDERAL AGENCIES
15
35.
Except as provided in Paragraph 36, Settling Defendants covenant not
16
to sue and agree not to assert any claims or causes of action against the United
17
States on behalf of EPA, or its contractors or employees, with respect to the B.F.
18
Goodrich Superfund Site and this Consent Decree, including, but not limited to:
19
20
21
22
23
a.
any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund (established pursuant to the Internal Revenue
Code, 26 U.S.C. § 9507) through CERCLA Sections 106(b)(2), 107, 111, 112, 113,
or any other provision of law;
b.
any claims against the United States, including any department,
24
25
26
27
28
agency, or instrumentality of the United States under CERCLA Sections 107 or
113, RCRA Section 7002(a), 42 U.S.C. § 6972(a), or state law regarding, the B.F.
Goodrich Superfund Site, response actions at the Site, response costs incurred at
the Site, and this Consent Decree;
Consent Decree
28
1
2
c.
any claims arising out of response actions at or in connection
3
with the B.F. Goodrich Superfund Site relating to the United States, including any
4
claim under the United States Constitution, the California Constitution, the Tucker
5
Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, as
6
amended, or at common law;
7
8
d.
Consolidated Federal Action; and
9
e.
10
11
12
any claim, whether express or deemed by court order, in the
any direct or indirect claim for disbursement from the B.F.
Goodrich Superfund Site Special Account.
36.
These covenants and releases shall not apply to the United States in
13
the event the United States brings a cause of action or issues an order pursuant to
14
any of the reservations set forth in Paragraphs 31-34, other than in Paragraph 34.a
15
(liability for failure to meet a requirement of the Consent Decree) or 34.f (criminal
16
liability), but only to the extent that Settling Defendants’ claims arise from the
17
same response action, response costs, or damages that the United States is seeking
18
pursuant to the applicable reservation.
19
37.
Nothing in this Consent Decree shall be deemed to constitute approval
20
or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42
21
U.S.C. § 9611, or 40 C.F.R. §300.700(d).
22
38.
Except as provided in Paragraph 40, each of the Settling Defendants
23
releases and covenants not to sue or take administrative action against any of the
24
Settling Federal Agencies, and each of the Settling Federal Agencies releases and
25
covenants not to sue or take administrative action against any of the Settling
26
27
28
Defendants, pursuant to Sections 107(a) or 113 of CERCLA, 42 U.S.C. §§ 9607(a)
and 9613, Section 7002 of RCRA, 42 U.S.C. § 6972, or any other state or federal
statute or state or federal common law with respect to all claims of any kind,
Consent Decree
29
1
known and unknown, in connection with the alleged release or threatened release
2
of any of the Basin Contaminants at, on, or under the RABSP Site. With respect to
3
present and future liability, these covenants and releases shall take effect upon
4
receipt by Plaintiffs of all payment amounts required by Paragraph 5 and any
5
Interest or stipulated penalties due thereon under Section XII (Failure to Comply
6
with Consent Decree Obligations).
7
8
9
10
11
39.
In releasing all unknown claims, each of the Settling Defendants and
the Settling Federal Agencies waives the provisions of Section 1542 of the
California Civil Code which provides:
13
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
14
40.
12
Each of the Settling Defendants and Settling Federal Agencies
15
reserves, and this Consent Decree is without prejudice to, all rights against the
16
Settling Defendants and Settling Federal Agencies with respect to:
17
18
a.
requirement of this Consent Decree;
19
20
liability of the breaching Party for its failure to meet a
b.
liability based on the ownership or operation of any portion of
the RABSP Site when such ownership or operation commences after lodging of
21
22
23
this Consent Decree and there is a new release of a Waste Material on or related to
such property;
c.
24
liability based on transportation, treatment, storage, or disposal,
25
or arrangement for transportation, treatment, storage, or disposal of a Waste
26
Material at or in connection with the RABSP Site, after lodging of this Consent
27
Decree;
28
Consent Decree
30
1
2
d.
liability arising from the past, present, or future disposal,
release, or threat of release of a Waste Material outside of the RABSP Site;
3
e.
liability arising from the release, threat of release, or disposal of
4
a Waste Material either within or outside of the RABSP Site, where such release,
5
threat of release, or disposal occurs after the lodging of this Consent Decree;
6
7
8
f.
threatened releases at the RABSP Site, where the Waste Material at issue is not a
Basin Contaminant;
9
g.
11
liability related to bodily injury; and
h.
10
12
liability arising from past, present, or future releases or
claims for contribution whether based on federal or state
statutes or common law arising out of: (1) claims in City of Riverside v. Black &
13
Decker (U.S.), Inc., et al., Case No. BC410878; (2) claims asserted by any person
14
or entity that was not a party to the Consolidated Federal Action on August 24,
15
2012; or, (3) claims for natural resource damages.
16
For purposes of subparagraphs b., c., and e. of this Paragraph, migration of existing
17
Waste Material is not a new release or disposal of Waste Material into soil,
18
groundwater, or atmosphere.
19
20
21
22
23
41.
Further Settlors. Settling Defendants agree that in the event that: (a)
the United States, on behalf of EPA, reaches or has reached settlement with any
other party to the Consolidated Federal Action who is not a signatory to this
Consent Decree (“Further Settlor”); and (b) the United States, on behalf of EPA,
gives notice in accordance with Section XVI (Notices and Submissions) to Settling
24
25
26
27
28
Defendants that such party has become a Further Settlor; then upon Court approval
of that Further Settlor’s settlement, Settling Defendants commit that they shall
extend to any such Further Settlor identical releases and covenants not to sue and
waiver to those set forth in Paragraphs 38 and 39, without further monetary
Consent Decree
31
1
consideration for such covenants and waiver, subject to the reservations of rights in
2
Paragraph 40, and in exchange for mutual releases of claims and appeals by that
3
Further Settlor against Settling Defendants substantially similar to the releases and
4
covenants not to sue and waiver set forth in Paragraphs 38 and 39. The
5
commitments of Settling Defendants to provide such covenants not to sue, subject
6
to the reservation of rights, in the foregoing sentence shall not take effect as to any
7
8
9
10
11
12
Future Settlor unless and until the settlement with such Future Settlor becomes a
final judgment following any appeal. The United States, on behalf of EPA, has
sole discretion to determine whether a party is to be deemed a “Further Settlor” for
purposes of this Paragraph.
42.
Claims Against Other Parties in the Consolidated Federal Action.
13
Settling Defendants agree not to assert any claims and to waive all claims or causes
14
of action (including but not limited to claims or causes of action under Sections
15
107(a) and 113 of CERCLA) or any other federal or state law that they may have
16
for response costs relating to the B.F. Goodrich Superfund Site and/or the West
17
Side Site against each other or any other person who is or was a party in the
18
Consolidated Federal Action. This waiver shall not apply with respect to any
19
defense, claim, or cause of action that a Settling Defendant may have against any
20
person if such person asserts a claim or cause of action relating to the B.F.
21
Goodrich Superfund Site and/or the West Side Site against such Settling
22
Defendant.
23
43.
Settling Defendants’ Agreement Regarding Recovery Under Federal
24
Contracts. Each Settling Defendant hereby agrees that it shall not in the future
25
seek or receive any portion of any amount it has agreed to pay in this Consent
26
Decree, through any Federal Contract. Pursuant to this Paragraph, each Settling
27
Defendant expressly acknowledges that it is prohibited from including any portion
28
of the payments made pursuant to this Consent Decree as either direct or indirect
Consent Decree
32
1
costs, or otherwise, in any invoice, claim, or demand associated with any Federal
2
Contract.
3
4
5
6
7
8
9
XV.
44.
EFFECT OF SETTLEMENT/CONTRIBUTION
Except as provided in Paragraph 42, 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. Except as provided in Section XIV
(Covenants and Reservations of Rights by Settling Defendants and Settling Federal
Agencies), each of the Parties expressly reserves any and all rights (including, but
10
not limited to, under Section 113 of CERCLA, 42 U.S.C. § 9613), defenses,
11
claims, demands, and causes of action which it may have with respect to any
12
matter, transaction, or occurrence relating in any way to the RABSP Site against
13
any person not a Party hereto. Nothing in this Consent Decree diminishes the right
14
of the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C.
15
§ 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or
16
response action and to enter into settlements that give rise to contribution
17
protection pursuant to Section 113(f)(2).
18
45.
The Parties agree, and by entering this Consent Decree this Court
19
finds, that this settlement constitutes a judicially approved settlement for purposes
20
of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and that Settling
21
Defendants are entitled, as of the Effective Date, to protection from contribution
22
actions or claims as provided by Section 113(f)(2) of CERCLA, or as may be
23
24
25
otherwise provided by law, for “matters addressed” in this Consent Decree. 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
26
27
28
B.F. Goodrich Superfund Site or the West Side Site by the United States or any
other person; provided, however, that if the United States on behalf of EPA
Consent Decree
33
1
exercises any of the reservations in Section XIII (Covenants and Reservations of
2
Rights by Plaintiffs), other than in Paragraphs 34.a (liability for failure to meet a
3
requirement of Consent Decree) or 34.f (criminal liability), the “matters addressed”
4
in this Consent Decree will no longer include those response costs or response
5
actions that are within the scope of the exercised reservation. Nothing in this
6
Paragraph shall limit or affect the ability of any Settling Defendant and/or Settling
7
8
9
10
11
12
Federal Agency to exercise their reservations of rights as to each other in
Paragraph 40.
46.
The Parties further agree, and by entering this Consent Decree this
Court further finds, that the payments and obligations provided for in this Consent
Decree represent a good faith compromise of disputed claims and that the
13
compromise represents a fair, reasonable, and equitable resolution. With regard to
14
any claims for costs, damages, or other claims against the Parties, the Parties agree
15
and this Court finds that Settling Defendants are entitled to contribution protection
16
pursuant to the California Code of Civil Procedure §§ 877 and 877.6, and any other
17
applicable provision of federal or state law, whether by statute or common law.
18
19
20
47.
The Parties intend the broadest possible protection from contribution
actions provided by law for “matters addressed” in this Consent Decree.
48.
Each Settling Defendant shall, with respect to any suit or claim
21
brought by it for matters related to this Consent Decree after the date the Consent
22
Decree is lodged with the Court, notify EPA and DOJ in writing no later than sixty
23
(60) days prior to the initiation of such suit or claim. Each Settling Defendant also
24
shall, with respect to any suit or claim brought against it for matters related to this
25
Consent Decree, notify EPA and DOJ in writing within ten (10) days after service
26
27
of the complaint or claim upon it. In addition, each Settling Defendant shall notify
EPA and DOJ within ten (10) days after service or receipt of any motion for
28
Consent Decree
34
1
summary judgment, and within ten (10) days after receipt of any order from a court
2
setting a case for trial, for matters related to this Consent Decree.
3
49.
In any subsequent administrative or judicial proceeding initiated by
4
the United States for injunctive relief, recovery of response costs, or other relief
5
relating to the B.F. Goodrich Superfund Site, Settling Defendants shall not assert,
6
and may not maintain, any defense or claim based upon the principles of waiver,
7
8
9
10
11
12
13
res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses
based upon any contention that the claims raised by the United States in the
subsequent proceeding were or should have been brought in the instant case;
provided, however, that nothing in this Paragraph affects the enforceability of the
covenants not to sue set forth in Sections XIII and XIV (Covenants and
Reservations of Rights).
XVI.
14
50.
15
NOTICES AND SUBMISSIONS
Whenever, under the terms of this Consent Decree, notice is required
16
to be given or a document is required to be sent by one party to another, it shall be
17
directed to the individuals at the addresses specified below, unless those
18
individuals or their successors give notice of a change to the other Parties in
19
writing. Written notice as specified in this Section shall constitute complete
20
satisfaction of any written notice requirement of the Consent Decree with respect
21
to the United States, EPA, and each Settling Defendant, respectively.
22
23
As to the United States:
24
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20044-7611
Re: DJ # 90-11-2-09952
25
26
27
28
-and-
Consent Decree
35
4
Chief, Environmental Defense Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20044-7611
Re: DJ # 90-11-6-17144/1
5
As to EPA:
1
2
3
6
7
8
9
10
Remedial Project Manager, B.F. Goodrich Site
Wayne Praskins
United States Environmental Protection Agency
Region 9
75 Hawthorne St.
San Francisco, CA 94105
As to Ken Thompson, Inc.; KTI, Incorporated; Pipeline Carriers, Inc.; and Rialto
Concrete Products, Inc:
14
Ralph Delorea
KTI, Incorporated
3011 N. Laurel Ave.
Rialto, CA 92377
Telephone: (909) 434-1888
Email: rdeloera@ktipipe.com
15
-and-
16
Keith A. Kelly, Esq.
Law Offices of Keith A. Kelly
7095 Indiana Ave., Ste. 200
Riverside, CA 92506
Telephone: (951) 684-7066
Email: keith.kelly@kakellylaw.com
11
12
13
17
18
19
XVII.
20
21
22
51.
This Court shall retain jurisdiction over this matter for the purpose of
interpreting and enforcing the terms of this Consent Decree.
23
24
25
26
27
28
RETENTION OF JURISDICTION
XVIII.
52.
INTEGRATION/APPENDICES
This Consent Decree and its appendices constitute the final, complete
and exclusive agreement and understanding between the Parties with respect to the
settlement embodied in this Consent Decree. The Parties acknowledge that there
are no representations, agreements, or understandings relating to the settlement
other than those expressly contained in this Consent Decree. The following
Consent Decree
36
1
2
3
4
5
6
7
8
9
10
11
12
appendices are attached to and incorporated into this Consent Decree:
“Appendix A” is the map of the RABSP, including the 160-Acre Area, the
Stonehurst Property, and the County Property.
“Appendix B” includes the legal descriptions and assessor’s map of the
parcels comprising the KTI Property.
“Appendix C” is a map depicting the portions of the KTI Property for which
EPA will require thirty (30) Days’ notice from Settling Defendants if Settling
Defendants intend to disturb the subsurface soils or sediments six (6) or more
inches below ground surface.
XXIV.
53.
LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
This Consent Decree shall be lodged with the Court for a period of not
13
less than thirty (30) days for public notice and comment. The United States
14
reserves the right to withdraw or withhold its consent if the comments regarding
15
the Consent Decree disclose facts or considerations that indicate that this Consent
16
Decree is inappropriate, improper, or inadequate. Settling Defendants consent to
17
the entry of this Consent Decree without further notice.
18
54.
If for any reason this Court’s entry of the Consent Decree is reversed
19
on appeal, in whole or material part, this Consent Decree is voidable at the sole
20
discretion of any Party and the terms of the Consent Decree may not be used as
21
evidence in any litigation between the Parties.
22
XX.
23
24
55.
FINAL JUDGMENT
The United States and Settling Defendants agree, and this Court by
25
entering this Consent Decree finds, that this Consent Decree has been negotiated
26
by the Parties in good faith, that settlement of this matter will avoid prolonged and
27
complicated litigation between the Parties, and that this Consent Decree is fair,
28
reasonable, and in the public interest.
Consent Decree
37
1
56.
The Court finds that there is no just reason for delay of entry of this
2
Consent Decree, and therefore enters this judgment as a final judgment under Fed.
3
R. Civ. P. 54 and 58.
4
5
SO ORDERED THIS ____ DAY OF _______, 2013.
2nd
July
6
7
___________________________________
HONORABLE PHILIP S. GUTIERREZ
United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Consent Decree
38
1
FOR THE UNITED STATES OF AMERICA:
2
c~
3
4
Dated:
Z~~
Gf-Qu~v
B'
ACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources
Division
United States Department of Justice
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Consent Decree
39
1
FOR THE UNITED STATES OF AMERICA:
2
3
4
Dated: ~~'~~/tit~ o ~ aD~j
By:
DEBORAH A. GITIN
Senior Counsel
United States Department of Justice
Environment and Natural Resources
Division
Environmental Enforcement Section
301 Howard St., Suite 1050
San Francisco, CA 94105
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Consent Decree
.~
1
FOR THE UNITED STATES OF AMERICA:
2
3
Dated: 3 2~ 13
By:
~~
~,q~
A. RIGAU
S- efor Trial Counsel
United States Department of Justice
Environmental and Natural Resources
Division
Environmental Defense Section
301 Howard St., Suite 1050
San Francisco, CA 94105
5
6
7
8
9
10
11 ~
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
►~:~
Consent Decree
~1.
Appendix A
43
APPENDIX A
160-Acre
Area
160-Acre Area
County Property
Stonehurst Property
Stonehurst
West Side Area
Rialto Ammunition Backup Storage Point (“RABSP”)
NOT TO SCALE
A
44
Appendix B
45
APN 0239-192-05-0000
Legal Description
The following real property in the City of Rialto, San Bernardino County, State of California,
described as:
Parcel 12 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of
California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County
Recorder of said County.
APN 0239-192-11-0000
Legal Description
The following real property in the City of Rialto, San Bernardino County, State of California,
described as:
Parcel 6 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California,
as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of
said County.
APN 0239-192-19-0000
Legal Description
The following real property in the City of Rialto, San Bernardino County, State of California,
described as:
Parcel 11 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of
California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County
Recorder of said County, TOGETHER WITH the Westerly 136.00 feet of Parcel 10 of Parcel Map
7173.
APN 0239-192-20-0000
Legal Description
The following real property in the City of Rialto, San Bernardino County, State of California,
described as:
Parcel 10 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of
California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County
Recorder of said County, EXCEPTING THEREFROM the Westerly 136.00 feet thereof.
APN 0239-192-09-0000
Legal Description
The following real property in the City of Rialto, San Bernardino County, State of California,
described as:
Parcel 8 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California,
as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of
said County.
46
47
Appendix C
48
Appendix C to the Consent Decree by and between the United States and Ken Thompson, Inc., et al.
Aerial image © Google Earth, 2013. Annotation by CH2M HILL, 2013.
0
North
300
600
Approximate scale in feet
Areas where Settling Defendants
should provide EPA notice if they
intend to disturb subsurface soils.
ES022113223559SCO385219.DE.01 BFG_Historic_disposal_sites.ai 2/13
49
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?