USA v. El Dorado County, et al

Filing 459

SETTLEMENT AGREEMENT and MODIFICATION of partial consent decree and ORDER signed by District Judge Morrison C. England, Jr on 9/23/16. (Mena-Sanchez, L)

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John C. Cruden
Assistant Attorney General
United States Department of Justice
Environment & Natural Resources Division
Karl J. Fingerhood, Senior Counsel
Andrew J. Doyle, Attorney
P.O. Box 7611
Washington, DC 20044
[phone] & 514-4427
[e-mail], [e-mail]
Attorneys for United States of America
Thomas M. Bruen (SBN: 63324)
Law Offices of Thomas M. Bruen
A Professional Corporation
1990 N. California Boulevard, Suite 620
Walnut Creek, CA 94596
[phone]
[e-mail]
Attorney for El Dorado County, California

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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No. 2:01-cv-1520-MCE-DAD

Plaintiff,
SETTLEMENT AGREEMENT AND

v.
EL DORADO COUNTY, CALIFORNIA,
et al.,
Defendants.
AND RELATED ACTIONS.

MODIFICATION OF PARTIAL
CONSENT DECREE (ECF No. 389);
ORDER THEREON

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Settlement Agreement & Modification of PCD; Order Thereon

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WHEREAS in August 2010 the Court entered a Partial Consent Decree (ECF No.

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389) between Plaintiff United States of America (“Plaintiff” or “United States”), on behalf

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of the United States Department of Agriculture, Forest Service (“Forest Service”), and

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Defendant El Dorado County, California (“County” or “Settling Defendant”);

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WHEREAS in April 2011 the County filed a Motion for Construction,

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Enforcement, and Modification of Partial Consent Decree (“County’s Motion”);

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WHEREAS the United States opposed that motion;

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WHEREAS in July 2011 the Court issued a Memorandum and Order granting the

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County’s Motion (ECF No. 416);
WHEREAS in January 2013 the United States Court of Appeals for the Ninth

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Circuit dismissed as premature the United States’ appeal of the Court’s July 2011

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Memorandum and Order (704 F.3d 1261);
WHEREAS in October 2014 the Court order the Parties to file briefs regarding

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the extent of the United States’ liability under the County’s Motion (ECF No. 445);

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WHEREAS the Parties desire to resolve the County’s Motion, as well as certain

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other contested matters set forth herein regarding the Partial Consent Decree, without

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further litigation or appeal;
WHEREAS the Parties desire to enter into this Settlement Agreement and

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Modification of Partial Consent Decree (“SA/MPCD”); and

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THEREFORE, the Parties agree, and the Court orders, as follows:

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1.

As soon as reasonably practicable after the Effective Date1 of this

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SA/MPCD, the United States, on behalf of the Forest Service, shall pay to the County

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$4,100,000 to resolve any and all claims alleged by the County in conjunction with the

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County’s Motion as well as any and all claims that the County had, has, or may have

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arising out of the transaction or occurrence that is the subject matter of the County’s

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“Effective Date” shall be the date upon which this SA/MPCD is entered by the Court as
recorded on the Court docket, or, if the Court instead issues an order approving this
SA/MPCD, the date such order is recorded on the Court docket.
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Settlement Agreement & Modification of PCD; Order Thereon

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Motion.
2.

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The United States shall make the payment required by Paragraph 1 of this

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SA/MPCD in accordance with instructions, to be provided by the County promptly after

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the Effective Date of this SA/MPCD.
3.

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In the event that payment required by Paragraph 1 of this SA/MPCD is not

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made within 45 days of the Effective Date of this SA/MPCD, Interest2 on the unpaid

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balance shall be paid commencing on the 46th day after the Effective Date of this

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SA/MPCD and accruing through the date of the payment.
4.

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Paragraph 1 of this SA/MPCD also resolves any and all claims the County

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has, had, or may have to recover any or all of Settling Defendant Excess Future OU-1

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Construction Costs under the Partial Consent Decree.
5.

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Within 30 days of receiving the payment required by Paragraph 1 of this

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SA/MPCD, the County shall pay to the Forest Service $500,000 to resolve any and all

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claims the United States, on behalf of the Forest Service, has, had, or may have to

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recover any or all Interim Response Costs and Future Response Costs associated with

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OU-1. Such payment by the County shall also resolve any and all claims the County

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has, had, or may have against the United States based on any contention that the

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Forest Service is liable for all or part of such Interim Response Costs or Future

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Response Costs.
6.

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The County shall make the payment required by Paragraph 5 of this

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SA/MPCD in accordance with instructions, to be provided by the United States promptly

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after the Effective Date of this SA/MPCD.
7.

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Upon receipt of the County’s payment required by Paragraph 5 of this

SA/MPCD, the Forest Service shall deposit such amount into the Meyers Landfill

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“Interest,” “Settling Defendant Excess Future OU-1 Construction Costs,” “Interim
Response Costs,” “Future Response Costs,” “Meyers Landfill Special Account,”
“Operation and Maintenance,” “Work,” and other intra-sentence capitalized words or
phrases shall have the same meaning as provided by the Partial Consent Decree
except to the extent applied to and modified by this SA/MPCD.
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Settlement Agreement & Modification of PCD; Order Thereon

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Special Account to be retained and used by the Forest Service solely to conduct or

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finance response actions at or in connection with the Site.

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8.

Within 30 days of receiving the payment required by Paragraph 1 of this

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SA/MPCD, the County shall establish and fund an interest-bearing trust in the amount of

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$2,700,000 to be used for OU-1 Operation and Maintenance (“O&M”). The County shall

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establish and fund such trust in accordance with instructions, to be provided by the

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United States promptly after the Effective Date of this SA/MPCD. Any fees required to

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establish or maintain the trust shall be subtracted from the $2,700,000 funding.

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9.

The County shall not seek to recover from the United States any of the

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funds required to establish the trust required by Paragraph 8 of this SA/MPCD.

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Likewise, after the completion of such funding by the County, the United States shall not

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seek to recover from the County any additional funds for OU-1 O&M, including any fees

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of any sort for the establishment and maintenance of the trust.

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10.

Upon the earlier of the (1) County’s (a) payment of the $500,000 required

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by Paragraph 5 of this SA/MPCD and (b) establishment and funding of the trust required

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by Paragraph 8; or (2) 75 days after the Effective Date, the County shall be relieved of

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any and all Work or payment obligations under the Partial Consent Decree associated

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with OU-1, including but not limited to: conducting additional Work associated with OU-

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1; obtaining an OU-1 Certificate of Completion from the Forest Service; paying Future

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Response Costs associated with OU-1, conducting OU-1 O&M, and paying Past,

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Interim, or Future Oversight Costs associated with OU-1 O&M (the "OU-1 Release"). If

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the OU-1 Release takes effect because of clause (2) in the preceding sentence, and the

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County fails to timely make the $500,000 payment required by Paragraph 5 or fails to

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timely establish and fund the trust required by Paragraph 8, the OU-1 Release shall be

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suspended and rendered ineffective as of the first day of such noncompliance, and the

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period of suspension and ineffectiveness shall continue until the County cures any such

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noncompliance (at which time the suspension shall lift and the OU-1 Release shall

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again be effective).

Settlement Agreement & Modification of PCD; Order Thereon

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Paragraphs 18, 91, and 95 of the Partial Consent Decree in their entirety

are vacated. Subparagraphs (a) and (i) of Paragraph 94 are also vacated.
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Paragraph 92 of the Partial Consent Decree is modified as follows:

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Notwithstanding any other provision of the Partial Consent Decree or this SA/MPCD,

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the United States reserves, and the Partial Consent Decree and SA/MPCD are without

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prejudice to, the right to institute a new action or to issue an administrative order,

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seeking to compel the County to perform further response actions at OU-1 and/or to pay

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the United States for additional costs of response at OU-1 if, (a) subsequent to

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December 31, 2013, (i) conditions at the Site, previously unknown to the Forest Service,

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are discovered, or (ii) information, previously unknown to the Forest Service, is

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received, in whole or in part, and (b) the Forest Service determines that these

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previously unknown conditions or this information together with other relevant

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information indicate that the Remedial Action is not protective of human health or the

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environment. As of the date the United States executes this SA/MPCD, the Forest

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Service represents that it has no such knowledge as to (a) and (b) in the preceding

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sentence.

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13.

Paragraph 93 of the Partial Consent Decree is modified as follows: For

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purposes of Paragraph 92, the information and conditions known to the Forest Service

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shall include only that information and those conditions known to the Forest Service as

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of December 31, 2013 and set forth in the OU-1 ROD Decision, the administrative

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record supporting the OU-1 ROD, the post-OU-1 ROD administrative record, or in any

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information received by the Forest Service pursuant to the requirements of the Partial

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Consent Decree prior to December 31, 2013.

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14.

With respect to Paragraph 67 of the Partial Consent Decree, the phrase

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“December 31, 2015” shall be substituted for the phrase “the first anniversary of the

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Forest Service’s Certification of Completion of the Remedial Action for OU-1 pursuant to

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Subparagraph 49.b. of Section XIV (Certification of Completion).” With respect to

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Paragraph 112 of the Partial Consent Decree, the phrase “December 31, 2024” for the

Settlement Agreement & Modification of PCD; Order Thereon

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phrase “ten years after Settling Defendant’s receipt of the Service’s notification pursuant

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to Paragraph 49.b of Section XIV (Certification of Completion of the Remedial Action).”

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15.

The Partial Consent Decree (ECF No. 389) is incorporated by reference

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herein (including, for example, Section IV’s definitions -- as reflected in footnote 2 of this

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SA/MPCD), except as modified by this SA/MPCD or rendered irrelevant by events

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occurring subsequent to the Effective Date of the Partial Consent Decree.

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16.

Upon the United States’ payment pursuant to Paragraph 1 of this

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SA/MPCD, the Court’s Memorandum and Order of July 2011 (ECF No. 416) and all

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related Orders are vacated and superseded by this SA/MPCD.

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FOR THE UNITED STATES OF AMERICA:

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JOHN C. CRUDEN
Assistant Attorney General
Environment and Natural Resources
Division
United States Department of Justice

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8/10/2016

____________/s/_____________________
KARL J. FINGERHOOD
Senior Counsel
Environmental Enforcement Section
Environment and Natural Resources
Division
United States Department of Justice

8/10/2016

__________/s/_______________________
ANDREW J. DOYLE
Trial Attorney
Environmental Defense Section
Environment and Natural Resources
Division
United States Department of Justice

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Settlement Agreement & Modification of PCD; Order Thereon

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FOR THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE:

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6/07/2016

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____________/s/______________________
RANDY MOORE
Regional Forester
United States Department of Agriculture
Forest Service
1323 Club Drive
Vallejo, California 94592

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FOR THE COUNTY OF EL DORADO, CALIFORNIA:
Date: 3/08/2016

Signature: __________/s/____________________

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Name (Print): Ron Mikulaco

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Title: Chair, Board of Supervisors

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Address: 330 Fair Lane
Placerville, CA 95667

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IT IS SO ORDERED.
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Dated: September 23, 2016

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Settlement Agreement & Modification of PCD; Order Thereon

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