California Department of Toxic Substances Control et al v. Jim Dobbas, Inc. et al

Filing 181

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 3/20/2018 ORDERING that plaintiffs' 177 Motion for Judicial Approval of the Consent Decree between plaintiffs and Van Over is GRANTED; all claims for contribution against Van Over arising out of response costs incurred at the Site are, DISMISSED pursuant to 42 U.S.C. § 9613(f)(2). CASE CLOSED (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA DEPARTMENT OF
TOXIC SUBSTANCES CONTROL, et
al.,

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Plaintiffs,
v.

CIV. NO. 2:14-595 WBW EFB

MEMORANDUM AND ORDER RE: MOTION
FOR JUDICIAL APPROVAL OF
PROPOSED CONSENT DECREE

JIM DOBBAS, INC., et al.,

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Defendants.

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Plaintiffs California Department of Toxic Substances

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Control and the Toxic Substances Control Account (collectively

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“DTSC”) brought this action under the Comprehensive Environmental

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Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C.

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§§ 9601 et seq., to recover cleanup costs incurred at 147 A

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Street in Elmira, California (“the Site”) from several

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defendants, including settling defendant David Van Over (“Van

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Over”).

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default judgments against all of the other defendants (Docket

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Nos. 18, 19, 129, 141, 150), and Van Over is the last remaining

DTSC has previously reached settlements or obtained

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defendant in this action.

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judicial approval of a proposed consent decree between plaintiffs

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and Van Over.

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opposition.

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Before the court is DTSC’s motion for

(Docket No. 176.)

Van Over has not filed an

DTSC states that as of September 30, 2016, its

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unreimbursed response costs related to the Site exceeded $2.7

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million.

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responsible party pursuant to section 107(a) of CERCLA, 42 U.S.C.

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§ 9607(a), and is therefore jointly and severally liable for the

This court has previously determined that Van Over is a

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costs DTSC incurred at the Site.

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Against Van Over (Docket No. 170).)

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financial information submitted by Van Over and determined that

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he is presently unable to pay penalties or a significant portion

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of the costs incurred, or the future costs to be incurred, at the

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Site.

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(Order for Partial Summ. J.
DTSC has reviewed the

After determining this, the parties were able to

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negotiate a settlement agreement resolving Van Over’s liability

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in this case.

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shall pay $250,000 to DTSC in multiple installments: $5,000 must

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be paid within 30 days of the Consent Decree’s effective date and

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additional payment(s) totaling up to $245,000 shall be made as

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follows: (a) within 10 days of each sale of all, or a portion of,

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the Site, in an amount equal to the Net Sale Proceeds; (b) within

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10 days of receipt by Van Over of an Ability to Pay

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Determination.

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effective date, DTSC shall ensure that the existing property lien

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on the Site is replaced by a judgment lien for $245,000.

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judgment lien will remain in effect, accruing statutory interest,

Pursuant to the proposed Consent Decree, Van Over

Further, within 60 days of the Consent Decree’s

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This

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until paid in full.

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of the Site, 100% of the Net Sale Proceeds of each such sale, up

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to a total of $245,000, shall be paid to DTSC to satisfy the

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judgment lien.

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exceed $245,000, DTSC shall receive 80% of the excess sale

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proceeds.

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than $2.89 million in excess sale proceeds.

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Additionally, if Van Over sells any portion

If the total net sale proceeds of such sales

However, Van Over will not be required to pay more

“In order to approve a CERCLA consent decree, a
district court must conclude that the agreement is procedurally

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and substantively ‘fair, reasonable, and consistent with CERCLA’s

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objectives.’”

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(9th Cir. 2014) (quoting United States v. Montrose Chem. Corp. of

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Cal., 50 F.3d 741, 748 (9th Cir. 1995)).

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approval of a consent decree must provide “evidence sufficient to

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evaluate the terms of an agreement.”

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parties agree that the Consent Decree has been negotiated in good

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faith, that the settlement of this matter will avoid prolonged

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and complicated litigation, and that this Consent Decree is fair,

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reasonable, in the public interest, and consistent with the

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purpose of CERCLA.

Arizona v. City of Tucson, 761 F.3d 1005, 1011-12

Parties seeking

Id. at 1012.

Here, the

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After reviewing the proposed Consent Decree and the

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Memorandum of Points and Authorities in Support of the decree

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(Docket No. 179), the court determines that the Consent Decree,

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which is the product of arms’-length settlement negotiations that

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took place over many months between DTSC and Van Over, is

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procedurally fair.

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participated in drafting the terms of the Consent Decree, and the

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parties exchanged multiple drafts of the decree.

Even though Van Over represented himself, he

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Further, DTSC

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published notice of the lodging of the Consent Decree in the

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California Regulatory Notice Register, published notice in a

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local newspaper, gave notice to the other defendants, and invited

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comments on the Consent Decrees.

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demonstrated that DTSC evaluated and considered Van Over’s

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ability to pay in arriving at the settlement, and thus the

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Consent Decree appears to be substantively fair as well. Also, by

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reaching a settlement, the parties have been able to avoid

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lengthy, complex, and costly litigation that would have entailed

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Additionally, the parties have

significant discovery and a trial.

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Furthermore, the Consent Decree will be effective in

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ensuring cleanups of the Site and it will compensate the public

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for the costs incurred, and thus the court concludes that the

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parties have satisfied the “reasonableness” requirement as well.

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Finally, because the Consent Decree holds Van Over accountable

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and provides DTSC with funds necessary to protect the

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environment, it therefore satisfies the goals of CERCLA.

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foregoing reasons, the court approves of the Proposed Consent

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Decree.

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For the

IT IS THEREFORE ORDERED that plaintiffs’ Motion for

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Judicial Approval of the Consent Decree between plaintiffs and

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Van Over (Docket No. 177) be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that all claims for contribution against

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Van Over arising out of response costs incurred at the Site be,

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and the same hereby are, DISMISSED pursuant to 42 U.S.C. §

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9613(f)(2).

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Dated:

The Clerk of Court is instructed to close the case.

March 20, 2018

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