Atchison Topeka, et al v. Hercules Inc, et al

Filing 506

Consent Decree, signed by District Judge Lawrence J. O'Neill on 1/5/12. (Gonzalez, R)

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KAMALA D. HARRIS
Attorney General of California
SUSAN FIERING, State Bar No. 121621
Supervising Deputy Attorney General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
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 EASTERN DISTRICT OF CALIFORNIA»

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Department of Toxic Substances Control,

No. CIV F-96- 5879 LJO/DLB (Consolidated
Shafter Cases)

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Plaintiff,
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CONSENT DECREE
v.

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Brown & Bryant, Inc., et al.,

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Defendants.

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INTRODUCTION
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The parties to this Consent Decree are the CALIFORNIA DEPARTMENT OF TOXIC
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SUBSTANCES CONTROL (“DTSC”), BNSF RAILWAY COMPANY (“BNSF”) (formerly

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Burlington Northern and Santa Fe Railway Company) and HERCULES INCORPORATED
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(“Hercules”), collectively “the Parties.” The Parties enter into this Consent Decree to resolve this

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action and to ensure the cleanup of that certain contaminated site located within the City of
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Shafter on two parcels of land and a railroad right-of-way adjacent to the parcels referred to as the
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“Shafter Site” and more fully described herein. DTSC filed the original complaint in this matter

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against BNSF, Hercules, and others pursuant to the Comprehensive Environmental Response,
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Consent Decree (No. CIV F-96 5879 LJO/DLB)
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Compensation, and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA") on January 14, 1998.
DTSC filed the Second Amended Complaint on November 6, 1998 (hereafter “Complaint”).
The Court consolidated the DTSC action, DTSC v. Brown & Bryant, Inc., et al., Case No.
CIV-F-98-5050, with two earlier actions which had been filed concerning the Shafter Site:
Atchison Topeka & Santa Fe Railway Co., et al. v. Brown & Bryant, Inc., et al., Case No. CIV-F92-5068; and Atchison Topeka & Santa Fe Railway Co. v. Hercules Incorporated, et al., Case No.
CIV-F-96-5879, and directed that “all future pleadings should contain ONLY the LEAD CASE
NUMBER OF CIV-F-96-5879 OWW DLB (member case 98-5050 OWW).” (These consolidated
actions are referred to herein as the “Consolidated Shafter Cases”).
In the Complaint, DTSC asserts that BNSF is the successor in interest to the Atchison,
Topeka and Santa Fe Railway (Atchison) and is the current owner of portions of the Shafter Site;
that Hercules supplied, on both a consignment and direct sale basis, hazardous substances to the
Shafter Site and owned and operated a tank used to store hazardous substances at the Shafter Site;
that the Shafter Site and the tank that Hercules owned are each a “facility” from which there were
releases or threatened releases of hazardous substances, as those terms are defined under
CERCLA; and that BNSF and Hercules are therefore jointly and severally liable for the costs that
have been, and will be, incurred by DTSC in response to releases and threatened releases of
hazardous substances at and from the Shafter Site.
This Consent Decree resolves the claims asserted by DTSC in the Complaint, requires
BNSF and/or Hercules to pay certain response costs that DTSC has incurred and will incur in
connection with the environmental cleanup of the Shafter Site as specified herein, and requires
BNSF to implement response actions as specified in this Consent Decree and in the Remedial
Action Plan for the Shafter Site that was approved by DTSC on May 21, 2009 (“RAP”) (attached
hereto as Exhibit A), and take other actions as specified herein.
This Consent Decree is entered into by DTSC pursuant to its authority under Sections 107
and 113 of CERCLA, 42 U.S.C. §§ 9607 and 9613. DTSC, BNSF, and Hercules agree, and this
Court finds by entering this Consent Decree, that this Consent Decree has been negotiated in

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Consent Decree (No. CIV F-96 5879 LJO/DLB)
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good faith and is entered into without the admission of any issue of fact or law, that settlement of
this matter will avoid expensive and protracted litigation between the Parties, and that this
Consent Decree is fair, reasonable and consistent with the National Contingency Plan, is in the
public interest, and will benefit the environment and the community.
NOW THEREFORE, it is ORDERED, ADJUDGED, AND DECREED, as follows:
1.

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JURISDICTION
The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.

§ 1331 and CERCLA, 42 U.S.C. § 9601 et seq. Solely for the purposes of this Consent Decree
and the Complaint, BNSF and Hercules agree to submit to the jurisdiction of this Court, to venue
in this District and to be bound by the terms of this Consent Decree.
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PARTIES BOUND
2.1. The “Parties” to this Consent Decree are DTSC, BNSF, and Hercules.
2.2. BNSF and Hercules shall fund and BNSF shall perform certain obligations with

regard to the RAP for the Facility as set forth in this Decree.
2.3. This Consent Decree applies to and is binding upon DTSC, and upon BNSF
and Hercules and their respective officers, directors, successors, heirs, and assigns. Any change
in ownership, partnership status or corporate status of BNSF or Hercules, including, but not
limited to, any transfer of assets or real or personal property, shall in no way alter BNSF’s or
Hercules’s rights or responsibilities under this Consent Decree.
2.4. All actions taken by DTSC pursuant to this Consent Decree, including all
approvals, reservations of rights, and covenants not to sue are solely those of DTSC and of no
other state agencies.
2.5. BNSF shall be responsible for ensuring that its contractors and subcontractors
perform the Work, as defined herein, in accordance with this Consent Decree.
2.6

Neither BNSF nor Hercules admit any fact or liability arising out of or relating

to the transactions or occurrences alleged in the Complaint, nor do they acknowledge that any

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release or threatened release of hazardous substances at or from the Shafter Site constitutes an
imminent or substantial endangerment to the public health or welfare or the environment.

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3.

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3.1. The Shafter Site.

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BACKGROUND

The Shafter Site consists of two parcels of real property located in the City of Shafter,
California: Parcel APN 028-190-05 and Parcel APN 028-180-25, and a right of way owned by
BNSF adjacent to the parcels of property. The Site consists of approximately fifteen (15) acres of
land.
3.2. Past/Current Owners and Operators.
Parcel APN 028-190-05 is owned by BNSF (hereafter “BNSF Parcel”); Parcel APN
028-180-25 is owned by Brown & Bryant, Inc. (hereafter “B & B Parcel”).
The Complaint alleges that defendant Brown and Bryant, Inc. (“B & B”) owned
and/or operated an agricultural chemical formulation, distribution, and custom application
business that operated on various portions of the Shafter Site that were leased from Atchison or
owned by B &B. The Complaint alleges that during the period that B&B owned and/or operated
its business on the Shafter Site, various chemicals, including, but not limited to, 1,2,3trichloropropane; 1,2-dichloropropane; 1,3-dichloropropane; 1,2-dichloroethane; dinoseb; 1,2dibromoethane (EDB); toxaphene; DDT; DDE; DDD; kelthane; ammonia; prometryn; toluene;
arsenic; xylene; chlordane; 1,2-dibromo-3-chloropropane (DBCP); pentachloronitrobenzene;
endrin; ethyl parathion; PCBs; benefin; temik; 2,4,5-T silvex; lindane; and 1,1,2-trichloroethane
were released onto the Site, contaminating soils and posing a threat to groundwater.
3.3. Regulatory History.
On or about May 1983, DTSC inspected the Shafter Site and found B & B to be in
violation of California hazardous waste control laws. Between 1984 and 1988, B & B conducted
site investigations to assess the extent of soil and potential groundwater contamination at and
around the Shafter Site, and undertook some response actions under the supervision of DTSC.
On or about January 17, 1991, the United States Environmental Protection Agency (EPA) issued

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an Administrative Order on Consent (“Consent Order”) to Atchison pursuant to Section 106 of
CERCLA, 42 U.S.C. § 9606. Atchison conducted a number of response actions at the Shafter
Site. On or about July 23, 1993, DTSC issued an Imminent or Substantial Endangerment
Determination Order and Remedial Action Order (“ISE Order”) to the defendants named in the
Complaint and others pursuant to Health and Safety Code section 25358.3.

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3.4. Owners/Operators and Arrangers

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3.4.1 The Complaint alleges that BNSF and Hercules are "persons" as that term
is defined by Section 101(21) of CERCLA, 42 U.S.C. § 9601(21) and are “liable parties” under
Section 107(a) of CERCLA for costs incurred by DTSC in response to the release or threatened
release of hazardous substances at or from the Shafter Site.
4.

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Unless otherwise expressly provided herein, terms used in this Consent Decree which
are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning
assigned to them therein. Whenever terms listed below are used anywhere in this Consent Decree
or its exhibits the following definitions shall apply:

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DEFINITIONS

4.1

“B&B Parcel” shall mean Parcel APN 028-180-25 which is owned by Brown &

4.2

“BNSF Parcel” shall mean Parcel APN 028-190-05 which is owned by BNSF;

4.3

“Consent Decree" or "Decree" shall mean this Consent Decree and its

Bryant, Inc.

attachments and exhibits.
4.4

"Contractor" shall mean the individual, company or companies retained by or

on behalf of BNSF to undertake and complete the Work.
4.5

"Day" 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 State or Federal holiday,
the period shall run until the close of business of the next working day.
4.6

“Effective Date” shall mean the date upon which an order by the Court

approving the Consent Decree is entered by the Court.

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4.7

“Facility” as used in this Consent Decree shall have the same meaning as that

term is defined by Section 101(9) of CERCLA, 42 U.S.C. § 9601(9), and includes the vertical and
areal extent of release of hazardous substances at or from the Shafter Site.
4.8

“Future Response Costs” shall mean all costs that DTSC incurs with regard to

response actions for the Shafter Site after March 31, 2011, including but not limited to, interest at
the rate set by Health and Safety Code section 25360.1.
4.9

"National Contingency Plan" or "NCP" shall refer to the National Oil and

Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105 of
CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300.
4.10 “Operation and Maintenance” shall mean all activities required to maintain the
effectiveness of the RAP as required under the Operation and Maintenance Plan and Agreement
that will be developed by BNSF and approved by DTSC pursuant to the terms of this Consent
Decree and the Scope of Work attached hereto as Exhibit B.
4.11 "Past Response Costs" shall mean all costs that DTSC has incurred with regard
to the Shafter Site up until March 31, 2011, including, but not limited to, interest at the rate set by
Health and Safety Code section 25360.1.
4.12 "Plan(s)" or "Workplan(s)" shall mean the plans and designs developed by or
on behalf of BNSF which detail the elements of the Work to be conducted pursuant to this
Consent Decree.
4.13 “Remedial Action” shall mean those activities, except for implementation of
Operation and Maintenance, (but including the preparation and approval of the Operation and
Maintenance Plan and Agreement and preparation and recording of the Land Use Covenant
required by the RAP), to be undertaken by BNSF to implement the RAP in accordance with the
Scope of Work and the final Remedial Design Documents.
4.14 "Report(s)" shall mean the reports developed by BNSF in compliance with this
Consent Decree, detailing the Work and the results of its implementation.

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4.15 “Shafter Site” shall mean the two parcels of real property (Parcel APN 028190-05 and APN 028-180-25), and the right of way owned by BNSF adjacent to these two parcels
of property located in the City of Shafter.

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4.16 “Work" shall mean the implementation, in accordance with this Consent
Decree, of the tasks and activities defined herein, including but not limited to the requirements of
Sections 5 and 6; such work as may be modified pursuant to the Section 16 of this Consent
Decree; and any schedules or plans required to be submitted to DTSC pursuant to this Consent
Decree.
5.

GENERAL OBLIGATIONS RESPECTING WORK TO BE PERFORMED
5.1 BNSF shall perform the work identified in the Scope of Work which is

incorporated herein by reference, and is attached hereto as Exhibit B.
5.2. Compliance With Applicable Laws
BNSF shall carry out this Consent Decree in compliance with all applicable state,
local, and federal requirements including, but not limited to, requirements to obtain permits and to
assure worker safety and the requirements of the NCP.
5.3. Access to Shafter Site and Other Properties.
5.3.1 BNSF Access Obligations
BNSF shall secure access to the BNSF Parcel and right-of-way at all reasonable times
to DTSC and its respective employees, contractors, and consultants for the purpose of conducting
any activity reasonably related to implementation of this Consent Decree, and shall ensure that
tenants and/or future owners are also obligated to provide such access. BNSF and its successors
in interest, (including without limitation any tenant or new owner of the BNSF Parcel or of the
right-of-way that is part of the Shafter Site), shall refrain from interfering with or adversely
affecting the implementation, integrity or protectiveness of any Work performed pursuant to this
Consent Decree. Access to DTSC provided pursuant to this Consent Decree, including pursuant
to the Land Use Covenant required in Section 6.1.1, shall be provided without compensation.
BNSF shall not transfer or convey any interest in or alienate the BNSF Parcel or right-or-way, in

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whole or in part, without providing for access to the BNSF Parcel and right-of-way. Nothing in
this Paragraph is intended nor shall be construed to limit in any way the right of entry or
inspection that DTSC or any other governmental agency may otherwise have by operation of any
law. DTSC and its authorized representatives shall have the authority to enter and move safely
about all areas at the BNSF Parcel at all reasonable times for purposes of ensuring compliance
with this Consent Decree, including, but not limited to: inspecting records, operating logs,
sampling and analytic data, and contracts relating to the BNSF Parcel; reviewing the progress of
BNSF in carrying out the terms of this Consent Decree; conducting such tests as DTSC may
deem necessary; and verifying the data submitted to DTSC by BNSF.
5.4. Sampling, Data and Document Availability.

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BNSF and Hercules each covenants and represents that, to the best of its knowledge,
it has provided to the other party and to DTSC all sampling, testing, monitoring and other data
within its possession, custody or control regarding the environmental condition of the Shafter Site
and adjacent properties. BNSF shall provide DTSC and its authorized representatives with copies
of all sampling, testing, monitoring or other data in any way pertaining to the Work undertaken
pursuant to this Consent Decree. BNSF shall inform DTSC at least seven (7) days in advance of
all field sampling under this Decree, and shall allow DTSC and its authorized representatives to
take duplicates of any samples collected by BNSF pursuant to this Consent Decree. BNSF shall
maintain a central repository of the data, reports, and other documents prepared by it pursuant to
this Consent Decree and inform DTSC of the location of the central repository and any changes to
its location.
5.5. Record Retention.
BNSF shall preserve all data, final reports and other documents prepared pursuant to
this Consent Decree for a minimum of six (6) years after the conclusion of all activities required
under the terms of this Consent Decree. If DTSC requests that some or all of these documents be
preserved for a longer period of time, BNSF shall either comply with that request or deliver the
documents to DTSC, or permit DTSC to copy the documents prior to destruction. Within any

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longer preservation period proscribed by DTSC, BNSF shall notify DTSC in writing, at least two
(2) months prior to destroying any documents prepared or generated pursuant to the terms of this
Consent Decree.
5.6. Government Liabilities.

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The State of California, and its employees, contractors, agencies, boards, departments
or divisions (“State of California”), shall not be liable for any injuries or damages to persons or
property resulting from acts or omissions by BNSF or its agents in carrying out activities pursuant
to this Consent Decree, nor shall the State of California be held as party to any contract entered
into by BNSF or its agents in carrying out activities pursuant to this Consent Decree.
5.7. Stop Work Order.

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In the event that DTSC determines that any activity (whether or not pursued in
compliance with this Consent Decree) may pose an imminent or substantial endangerment to the
health or safety of people on the Shafter Site or in the surrounding area or to the environment,
DTSC may order BNSF to stop further implementation of such activity for such period of time
needed to abate the endangerment (hereafter “Stop Work Order”). In the event that DTSC
determines that any activities (whether or not pursued in compliance with this Consent Decree)
are proceeding without DTSC authorization, DTSC may order BNSF to stop further
implementation of such activity for such period of time needed to obtain DTSC authorization, if
such authorization is appropriate. Any deadline in this Consent Decree directly affected by a
Stop Work Order, under this Subsection, shall be extended for the duration of the Stop Work
Order.
5.8. Emergency Response Action/Notification.
In the event of any action or occurrence, such as a fire, earthquake, explosion, or
human exposure to hazardous substances caused by the release or threatened release of a
hazardous substance at the Shafter Site, during the performance of the Remedial Action pursuant
to this Consent Decree, BNSF, shall immediately take all appropriate action to prevent, abate, or
minimize such emergency, release, or immediate threat of release and shall immediately notify

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DTSC’s Project Manager. BNSF shall take such action in consultation with the DTSC Project
Manager and in accordance with all applicable provisions of this Consent Decree. Within seven
(7) days of the onset of such an event, BNSF shall furnish a report to DTSC, signed by BNSF’s
Project Coordinator, setting forth the events which occurred and the measures taken in the
response thereto. In the event that BNSF fails to take appropriate response action and DTSC
takes the action instead, DTSC may seek to recover the costs of its response action from BNSF.
Nothing in this Paragraph shall be deemed to limit any other notification requirement to which
BNSF may otherwise be subject by operation of law.
5.9. Extension Requests.

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If BNSF is unable to perform any activity or submit any document within the time
required under this Decree, it may, prior to expiration of the time, request from DTSC an
extension of time in writing. The extension request shall include a justification for the delay. All
such requests shall be in advance of the date on which the activity or document is due. If DTSC
determines that good cause exists for the requested extension, it will grant the request and specify
a new schedule in writing. The new schedule shall be deemed incorporated into this Consent
Decree and BNSF shall comply with the new schedule.
6.

SPECIFIC WORK TO BE PERFORMED
6.1. Shafter Site Remediation.

Work to be performed by BNSF under this Consent Decree shall include:
6.1.1 Land Use Covenant: In accordance with the RAP and Scope of Work,
BNSF shall record upon completion of the Remedial Action Land Use Covenants in a form and
content acceptable to DTSC setting forth appropriate restrictions on use and other requirements
applicable to the BNSF Parcel and right of way. The Land Use Covenants shall be enforceable
under the laws of California, and BNSF shall provide a current title insurance commitment or
some other evidence of title acceptable to DTSC which shows title to the land described in the
BNSF Parcel and right of way to be free and clear of all prior liens and encumbrances that could
interfere with the implementation or enforcement of the Operation and Maintenance Plan and

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Agreement, the provisions of the Land Use Covenants, or the Scope of Work. BNSF, or any
subsequent owner of the BNSF Parcel or the right of way, may apply to DTSC to have the Land
Use Covenants modified in accordance with Health and Safety Code Sections 25233 or 25234.
BNSF shall not be required to record or enforce any Land Use Covenant applicable to the B&B
Parcel.

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6.2. Remedial Design Document and Implementation.

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BNSF shall fully implement: 1) the Excavation Work Plan for soil excavation as
approved by DTSC on October 20, 2009, and 2) upon DTSC approval, the Soil Vapor Extraction
System Work Plan. In addition to completing the above actions, BNSF shall complete all
additional actions as set forth in the Scope of Work, including work to: 1) implement the
Remedial Action, 2) implement the requirements of the Operation and Maintenance Plan and
Agreement, 3) conduct annual groundwater monitoring for up to ten years following DTSC
authorization to decommission the soil vapor extraction system, and 4) close and properly
abandon the groundwater monitoring wells at the Shafter Site after all necessary monitoring is
complete.
6.3

Certification of Completion of Remedial Action.

Within ninety (90) days of the date when BNSF believes that the Remedial Action
has been fully performed, BNSF shall schedule and conduct a pre-certification inspection to be
attended by BNSF and DTSC. If, after the pre-certification inspection, BNSF maintains that the
Remedial Action has been fully performed, BNSF shall submit a written report requesting that
DTSC issue a Certification of Completion of Remedial Action within thirty (30) days of the
receipt of said report by DTSC. In the report, a registered engineer and BNSF’s Project
Coordinator shall state that the Remedial Action has been completed in full satisfaction of the
requirements of this Consent Decree. The written report shall include any required as-built
drawings signed and stamped by a professional engineer. The report shall contain the following
statement, signed by a responsible corporate official of BNSF or the Project Coordinator:

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To the best of my knowledge, after thorough investigation, I certify that the
information contained in or accompanying this submission is true, accurate and
complete. I am aware that there are significant penalties for submitting false

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information, including the possibility of fine and imprisonment for knowing
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violations.

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If, after completion of the pre-certification inspection and receipt and review of the written

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report, DTSC determines that the Remedial Action or any portion thereof has not been completed

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in accordance with this Consent Decree, DTSC will notify BNSF in writing of a schedule for the

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performance of such activities that must be undertaken pursuant to this Consent Decree and the

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Scope of Work to complete the Remedial Action, or DTSC may require BNSF to submit a

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schedule for such work to DTSC for approval; provided however, that DTSC may only require

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BNSF to perform such activities pursuant to this Paragraph to the extent that such activities are

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consistent with the approved RAP and Scope of Work as those terms are defined herein. BNSF

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shall perform all activities described in the notice in accordance with the specifications and

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schedules established therein, subject to the right to invoke the dispute resolution procedures set

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forth in this Consent Decree. If DTSC concludes, based on the initial or any subsequent report

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requesting Certification of Completion of Remedial Action that the Remedial Action has been

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performed in accordance with this Consent Decree, DTSC will so certify in writing to BNSF.

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This certification shall constitute the Certification of Completion of the Remedial Action for

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purposes of this Consent Decree, including, but not limited to, Paragraph 10.1 of this Consent

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Decree (Termination and Satisfaction). Certification of Completion of the Remedial Action shall

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not affect BNSF’s other obligations under this Consent Decree.

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7.

PAYMENT OF DTSC COSTS
7.1. Past Response Costs.

Within thirty (30) days of the Effective Date of this

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Consent Decree, BNSF and/or Hercules shall reimburse DTSC for the sum of $1.5 million dollars

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($1,500,000) for Past Response Costs. BNSF and/or Hercules shall pay the Past Response Costs

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by check within thirty (30) days of the Effective Date. The check shall be made payable to the
California Department of Toxic Substances Control, bear the reference to “Brown & Bryant, Inc.Shafter Facility (100026)” and be mailed to:

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California Department of Toxic Substances Control
Attention: Accounting Unit
P.O. Box 806
Sacramento, California 95812-0806

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A copy of the transmittal letter and a copy of the check shall be sent to BNSF’s Project
Coordinator and DTSC's Project Manager at the address specified in subparagraph 7.2.4.
7.2

DTSC Future Response Costs.
7.2.1 BNSF will reimburse DTSC for its Future Response Costs incurred in

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connection with the Work undertaken pursuant to the RAP and the Scope of Work. DTSC will

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provide BNSF with invoices for its Future Response Costs on at least a semi-annual basis. BNSF

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may provide notice of any challenge to an invoice for Future Response Costs by letter mailed to

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DTSC within thirty (30) days after BNSF receives the invoice. The challenge will then be subject

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to the dispute resolution provisions of this Consent Decree set forth in Section 8. Unless

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challenged by BNSF as provided herein, BNSF shall pay to DTSC the Future Response Costs by

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check within thirty (30) days after receipt of the invoice. The payments made pursuant to this

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paragraph shall be made as provided in Paragraph 7.1.

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A copy of the transmittal letter and a copy of the check shall be sent to BNSF’s Project
Coordinator and DTSC's Project Manager at the address specified in subparagraph 7.2.4.
Where BNSF has fully performed its groundwater monitoring obligation under paragraph

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6.2 implementation item (3), and DTSC decides to continue that groundwater monitoring

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thereafter, DTSC agrees that it will not invoice BNSF for DTSC’s costs of such continued

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groundwater monitoring, and such continued groundwater monitoring costs incurred by DTSC

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shall not be deemed Future Response Costs under this paragraph. This is not a waiver of any

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other Future Response Costs.

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7.2.2 If an invoice for Future Response Costs is not paid by BNSF within (60)
days after it is sent by DTSC, BNSF may be deemed to be in material default of this Consent
Decree. Any invoice not paid within sixty (60) days is subject to interest calculated from the date
of the billing pursuant to California Health and Safety Code section 25360.1.
7.2.3 If BNSF disputes an invoice, or any part thereof, it shall notify DTSC’s
Project Manager and attempt to informally resolve the dispute with DTSC’s Project Manager and
Branch Chief. If BNSF desires to formally request dispute resolution with regard to the invoice,
it shall make a request for dispute resolution as set out below in Section 8. Such request for
dispute resolution shall be made in writing no later than 30 days after the date of receipt by BNSF
of the invoice in dispute. The filing of a notice of dispute shall not stay the accrual of interest on
any unpaid costs pending resolution of the dispute. If the dispute pertains to only a portion of the
costs included in the invoice, BNSF shall pay all costs which are not disputed.
7.2.4 Copies of the transmittal letter and check for payment of DTSC Future
Response Costs made by BNSF pursuant to subparagraphs 7.2.1 shall be submitted to BNSF’s
Project Coordinator and DTSC’s Project Manager at the following addresses:
To DTSC:
Calden R. Koehn, P.E., Project Manager
San Joaquin & Legacy Landfills Office
Clovis Office
Department of Toxic Substances Control
1515 Tollhouse Road
Clovis, California 93611
To BNSF:
David C. Clark, Director of Environmental Remediation
BNSF Railway Company
920 Southeast Quincy Street
Topeka, KS 66612-1116

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with a copy to:
Marc A. Zeppetello
Barg Coffin Lewis & Trapp, LLP
350 California Street, 22nd Floor
San Francisco, CA 94104

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8.

Unless otherwise expressly provided for in this Consent Decree, the dispute resolution
procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or
with respect to this Consent Decree. However, the procedures set forth in this Section shall not
apply to actions by DTSC to enforce obligations that have not been disputed in accordance with
this Section.

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8.1.

instance be the subject of informal negotiations between the parties to the dispute. The period for
informal negotiations shall not exceed twenty (20) days from the time the dispute arises, unless it
is modified by written agreement of the parties to the dispute. The dispute shall be considered to
have arisen when one party sends the other parties a written Notice of Dispute. Unless modified
by written agreement of the parties to the dispute, the informal negotiations period will be
deemed concluded twenty (20) days after the date of the Notice of Dispute.
8.2. Statements of Position.

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Notice of Dispute.

Any dispute which arises under or with respect to this Consent Decree shall in the first

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DISPUTE RESOLUTION

In the event that the parties cannot resolve a dispute by informal negotiations under
the preceding Paragraph, then the position advanced by DTSC shall be considered binding unless,
within ten (10) days after the conclusion of the informal negotiation period, BNSF shall serve on
DTSC a written Statement of Position on the matter in dispute, including, but not limited to, any
factual data, analysis or opinion supporting that position and any supporting documentation relied
upon by BNSF. Within twenty-one (21) days after receipt of BNSF’s Statement of Position,
DTSC will serve on BNSF its Statement of Position, including, but not limited to, any factual
data, analysis, or opinion supporting that position and all supporting documentation relied upon
by DTSC. Within ten (10) days after receipt of DTSC's Statement of Position, BNSF may submit
a Reply.

An administrative record of the dispute shall be maintained by DTSC and shall contain

all statements of position, including supporting documentation, submitted pursuant to this

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Paragraph. The Parties’ respective submittals shall be provided to DTSC’s Director or his or her
designee for review.

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The DTSC Director or his or her designee shall issue a final administrative decision
resolving the dispute that shall be based on the administrative record compiled pursuant to
Paragraph 8.2. The decision shall be binding upon all parties involved in the dispute, subject only
to the right to seek judicial review of the administrative decision pursuant to Paragraph 8.4.

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8.4

If BNSF seeks judicial review of any administrative decision made by DTSC pursuant to
Paragraph 8.3, such administrative decision shall be reviewable by this Court on the
administrative record compiled pursuant to Paragraph 8.2, provided that a motion for judicial
review of the decision is filed by BNSF and served on all Parties within ten (10) days of receipt of
DTSC's final administrative decision. If such motion is not timely filed, the decision of DTSC’s
Director or his or her designee shall be final. If such a motion is timely filed with this Court, the
motion shall include a description of the matter in dispute, the efforts made by the parties to
resolve it, the relief requested, and the schedule, if any, within which the dispute must be resolved
to ensure orderly implementation of this Consent Decree. DTSC may file a response to BNSF’s
motion. BNSF shall have the burden of demonstrating that DTSC’s decision is arbitrary and
capricious or otherwise not in accordance with law.

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Judicial Review.

8.5. The invocation of dispute resolution procedures under this Section shall not
extend, postpone or affect in any way any obligation of BNSF under this Consent Decree, not
directly in dispute, unless DTSC agrees in writing or the Court orders otherwise.
9.

Remedies for Non-Compliance

In the event of non-compliance by BNSF and/or Hercules with the terms of' this Decree,
DTSC reserves all rights to enforce this Consent Decree or to perform response actions itself' and
cost recover. In the event of noncompliance by BNSF and/or Hercules with the terms of' this
Decree, nothing in this paragraph shall be construed as limiting DTSC from seeking any other

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available legal or equitable remedies for noncompliance by BNSF and/or Hercules with this
Consent Decree . Moreover, noncompliance by either BNSF or Hercules does not relieve the
other defendant of any obligations it may have under this Consent Decree.
DTSC shall give written notice to BNSF and/or Hercules of' its/their alleged noncompliance under this Consent Decree and shall specify DTSC's grounds for the alleged noncompliance. Prior to DTSC taking any actions to enforce this Consent Decree, or to perform
response actions itself' and seek cost recovery in response to any alleged non-compliance under
this Consent Decree, DTSC shall provide BNSF and/or Hercules, as applicable, with an
opportunity to rectify the alleged non.-compliance under this Decree, or to propose a course of'
action consistent with this Consent Decree that addresses DTSC's grounds for such alleged noncompliance.
10.

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TERMINATION AND SATISFACTION
10.1 This Consent Decree shall remain in full force and effect until DTSC issues a

Certification of Completion of Remedial Action by BNSF pursuant to Paragraph 6.3; the Land
Use Covenants required by the Paragraph 6.1.1. have been recorded; and BNSF and DTSC have
entered an Operation and Maintenance Agreement and Plan that provides for post-certification
operation and maintenance by BNSF, including groundwater monitoring and other postcertification actions required by the Scope of Work. When all such actions have occurred, this
Consent Decree shall be terminated except for the provisions of Paragraph 5.5 and sections 7, 11,
12, and 13, and such other continuing rights and obligations of the Parties under this Consent
Decree.
11.

COVENANTS NOT TO SUE AND RESERVATIONS OF RIGHTS
11.1. DTSC’s Covenant Not to Sue: In consideration for the Work that will be

performed and the payments that will be made under the terms of this Consent Decree, and
subject to the reservation of rights set forth in Paragraphs 11.3, 11.4, and 11.5 of this Consent
Decree, DTSC covenants not to sue or take administrative action against BNSF or Hercules to
compel response actions or recover response costs relating to the Shafter Site based on the release

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or threatened release of hazardous substances from the Shafter Site as set forth in the Complaint,
pursuant to section 107(a) of CERCLA, 42 U.S.C. section 9607 or sections 25355.5, 25358.3, and
25360 of the California Health and Safety Code or to seek penalties under section 25359.2 of the
California Health and Safety Code for actions of non-compliance by BNSF or Hercules prior to
the effective date of the Consent Decree. These covenants not to sue shall take effect upon the
Effective Date of this Consent Decree. These covenants not to sue are conditioned upon the
satisfactory performance by BNSF and Hercules of their respective obligations under this
Consent Decree. DTSC’s covenants not to sue extend only to the BNSF and Hercules in
connection with the Shafter Site and do not extend to any other person or entity.
11.2. Covenants Not to Sue by BNSF and Hercules.
11.2.1 Covenants Not to Sue DTSC. Except for the right to seek judicial
review pursuant to Paragraph 8.4 of this Consent Decree, BNSF and Hercules each hereby
covenant not to sue and agree not to assert any claims or causes of action against DTSC or its
officers and employees regarding any matter relating to the Consent Decree, or with respect to
any regulatory action taken by DTSC involving the Shafter Site including, but not limited to:
11.2.1.1.

any direct or indirect claim for reimbursement from the

California Hazardous Substance Account;
11.2.1.2

any claims against the State under section 107(a) of

CERCLA, 42 U.S.C. section 9607, or sections 25355.5, 25358.3, and 25360 of the California
Health and Safety Code.
11.2.2

Reciprocal Covenants Not to Sue.

Except with respect to obligations arising under this Consent Decree and the confidential
settlement agreement between BNSF and Hercules regarding the funding of Work at the Site, and
except with respect to matters reserved in Paragraphs 11.3, 11.4, and 11.5, BNSF and Hercules
each covenants not to sue or assert against the other any claims or causes of action arising out of
or relating to environmental contamination existing as of the Effective Date of this Consent
Decree at or from the Shafter Site, including, but not limited to any claims under section 107(a) or

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113 of CERCLA, 42 U.S.C. sections 9607 and 9613, sections 25355.5, 25358.3, and 25360 of the
California Health and Safety Code, or under any other state or federal statutory or common law.

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11.2.3 BNSF and Hercules Dismissal of Claims.

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Upon the Effective Date of this Consent Decree, the Court shall dismiss with prejudice: (1)
all claims asserted by BNSF against Hercules in the Consolidated Shafter Cases; and (2) all
claims asserted by Hercules against BNSF in the Consolidated Shafter Cases.

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11.3. DTSC’s Reservation of Rights. The Covenant Not to Sue set forth in Paragraph
11.1 above does not pertain to any matters other than those expressly specified therein. DTSC
reserves and this Consent Decree is without prejudice to all rights against BNSF and Hercules
with respect to all other matters, including but not limited to, the following:

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11.3.1.

heirs, successors or assignees to meet a requirement of or to otherwise enforce this Consent
Decree;

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11.3.2

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

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

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criminal liability;

11.3.3

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Claims based on a failure by BNSF or Hercules or their respective

11.3.4.

liability for violations of any other local, state or federal law or

regulations not covered by this Consent Decree or any liability not covered by this Consent
Decree arising from past, present or future ownership, operation, disposal, release, or threat of
release of hazardous substances, pollutants, or contaminants, at other sites besides the Shafter
Site;
11.3.5

any liability for activities BNSF or Hercules engage in at the

Shafter Site that constitute violations of federal or state law and which occur after the Effective
Date of the Consent Decree.
11.4. In addition to the reservations set out in Paragraph 11.3, DTSC reserves, and
this Consent Decree is without prejudice to, the right to institute proceedings in this action or in a
new action seeking to compel BNSF or Hercules to take a response action or to reimburse DTSC

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for additional response costs for the Shafter Site if, subsequent to lodging of the Consent Decree,
conditions previously unknown to DTSC are discovered, or information, previously unknown to
DTSC, is received in whole or in part, and these previously unknown conditions or this
previously unknown information indicate(s) that the remedy set forth in the RAP for the Shafter
Site is not protective of human health and the environment.

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11.5. Further Actions Necessary to Protect Public.

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Nothing herein shall limit the power and authority of DTSC, or of any other State
agency, to take, direct, or order all actions necessary to protect public health, welfare, or the
environment or to prevent, abate or minimize an actual or threatened release of hazardous
substances, pollutants, or contaminants, or hazardous or solid waste on, at, or from the Shafter
Site. Further, nothing herein shall prevent DTSC from seeking legal or equitable relief to enforce
the terms of this Consent Decree.
12.

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WAIVER OF EQUITABLE DEFENSES
In any subsequent administrative or judicial proceeding initiated by DTSC to enforce

this Consent decree, neither BNSF nor Hercules shall contest its obligation to fully comply with
this Consent Decree; provided, however, that nothing in this Section affects the enforceability of
the covenants not to sue set forth in Section 11. In such proceedings, BNSF and Hercules may
raise any defenses that are relevant to the issue of whether or not they have complied with the
terms of the Consent Decree.
13.

CONTRIBUTION PROTECTION
With regard to claims for contribution against BNSF or Hercules for matters

addressed in this Consent Decree, the Parties agree, and the Court finds as follows:
13.1. This Consent Decree constitutes a judicially approved settlement within
the meaning of CERCLA § 113(f)(2) 42 U.S.C.§ 9613(f)(2) pursuant to which BNSF and
Hercules have resolved their liability to DTSC.
13.2. This Consent Decree requires that BNSF and/or Hercules pay certain
costs and undertake certain response actions at the Shafter Site.

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13.3. BNSF and Hercules are entitled to the Contribution Protection provided
by CERCLA § 113(f)(2), 42 U.S.C. Section 9613(f)(2), and as may be otherwise provided by law,
for the “matters addressed” in this Consent Decree.

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13.4. The “matters addressed” in this Consent Decree include (1) response
actions taken pursuant to the ISE Order prior to the Effective Date of the Consent Decree; (2) the
Work, (3) payment of DTSC’s Past Response Costs relating to the Shafter Site; and (4) payment
of DTSC’s Future Response Costs relating to the Shafter Site.

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13.4. Nothing in this Section shall limit DTSC's rights against any third person
or entity that is not a party to this Consent Decree, including, without limitation, DTSC's right to
enforce a cleanup of the Shafter Site and to recover any response costs associated with that
cleanup.
14.

FORCE MAJEURE
BNSF shall cause all Work to be performed within the time limits set forth in this

Consent Decree unless an extension is approved by DTSC in writing or performance is delayed
by events that constitute an event of force majeure. For purposes of this Consent Decree, an
event of force majeure is an event arising from circumstances beyond the control of BNSF that
delays performance of any obligation under this Consent Decree, provided that BNSF has
undertaken all appropriate planning and prevention measures to avoid any foreseeable
circumstances. Increases in cost of performing the Work specified in this Consent Decree shall
not be considered circumstances beyond the control of BNSF. For purposes of this Consent
Decree, events which constitute a force majeure shall include, without limitation, events such as
acts of nature, war, civil commotion, unusually severe weather, labor difficulties, shortages of
materials or equipment, delays in obtaining necessary permits due to action or inaction by third
parties beyond the control of BNSF, earthquake, fire, flood or other casualty. BNSF shall notify
DTSC in writing immediately after the occurrence of the force majeure event. Such notification
shall describe the anticipated length of the delay, the cause or causes of the delay, the measures
taken and to be taken by BNSF to minimize the delay and the timetable by which these measures

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will be implemented. If DTSC does not agree that the delay is attributable to a force majeure,
then the matter may be subject to the dispute resolution procedures set forth in Paragraph 8 of this
Consent Decree.
15.

Upon the Effective Date of this Consent Decree, the ISE Order shall be amended as
follows: (1) the following parties are no longer parties to the ISE Order and are deleted from the
heading and from Section 1.1 of the ISE Order: (a) The Atchison, Topeka and Santa Fe Railway
Company, a Delaware corporation; and (b) Hercules Incorporated, a Delaware corporation; and
(2) the following sections are deleted from the ISE Order: 2.1.2 and 2.1.15.
16.

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may be modified by agreement of DTSC and BNSF. All such modifications shall be made in
writing.
17.

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RETENTION OF JURISDICTION
This Court retains jurisdiction over both the subject matter of this Consent Decree

and the Parties for the duration of the performance of the terms and provisions of this Consent
Decree for the purpose of enabling any of the Parties to apply to the Court at any time for such
further order, direction, and relief as may be necessary or appropriate, for the construction or
modification of this Consent Decree, or to effectuate or enforce compliance with its terms, or to
resolve disputes in accordance with Section 8 hereof.
18.

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MODIFICATION
Schedules specified in this Consent Decree or Scope of Work for completion of Work

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AMENDMENT OF ISE ORDER

SIGNATORIES
Each undersigned representative of DTSC, BNSF, and Hercules certifies that he or

she is fully authorized to enter into the terms and conditions of this Consent Decree and to
execute and legally bind such Party to this Decree.
19.

FINAL JUDGMENT
This Consent Decree and its exhibits constitute the final, complete, and exclusive

agreement and understanding among the Parties with respect to the settlement embodied in the

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Consent Decree. The Parties acknowledge that, with the exception of a confidential settlement
agreement between BNSF and Hercules, there are no representations, agreements or
understandings relating to the settlement other than those expressly contained in this Consent
Decree. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment between and among DTSC, BNSF and Hercules.

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Dated: __________________

DEPARTMENT OF TOXIC SUBSTANCES
CONTROL

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By:__/s/ Stewart W. Black
STEWART W. BLACK, P.G.
Acting Deputy Director
Brownfields and Environmental Restoration
Program

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Its:

_______________________________________

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Dated: __________________

BNSF RAILWAY COMPANY

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By: /s/ Gregory C. Fox_____________________
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Its

_EUP Operations______________________

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Dated: _________________

HERCULES INCORPORATED

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By: /s/ Paul Raymond____________________
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Its:

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APPROVED AS TO FORM:

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Dated: Dec. 16, 2011__________

_President__________________________

BARG COFFIN LEWIS & TRAPP, LLP

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By: _/s/ Marc Zeppetello___________________
MARC ZEPPETELLO
Attorneys for BNSF Railway Company
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Consent Decree (No. CIV F-96 5879 LJO/DLB)
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Dated: Dec. 14. 2011

McKENNA LONG & ALDRIDGE

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By: /s/ Christian Volz______________________
CHRISTIAN VOLZ
Attorneys for Hercules Incorporated

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Dated: _12/19/2011______________

KAMALA D. HARRIS
Attorney General of California

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By: /s/ Susan S. Fiering_______________
SUSAN FIERING
Supervising Deputy Attorney General
Attorneys for California Department of Toxic
Substances Control

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

January 5, 2012

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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