California Department of Toxic Substances Control v. United States of America

Filing 11

STIPULATION and ORDER signed by District Judge John A. Mendez on 10/31/17: The matter is stayed until April 2, 2018. On or before December 1, 2017, the parties shall file a proposed Consent Decree with the Court. (Kaminski, H)

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JEFFERY H. WOOD
Acting Assistant Attorney General
MARK A. RIGAU, State Bar No. 223610
Senior Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
301 Howard Street, Suite 1050
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415-744-6476
E-mail: [e-mail]
Attorneys for the United States of America

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,

2:16-cv-02897-JAM-AC

JOINT STATUS REPORT,
Plaintiff, STIPULATION AND ORDER TO
CONTINUE THE STAY

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v.

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THE UNITED STATES OF AMERICA,

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Judge: John A. Mendez
Action Filed: December 9, 2016

Defendant.

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Joint Status Report, Stipulation and [Proposed] Order To Continue the Stay (2:16-cv-02897-JAM-AC)

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Plaintiff, the Department of Toxic Substances Control (“DTSC”) and Defendant, the

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United States of America (“United States”) hereby submit this Joint Status Report, Stipulation

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and [Proposed] Order to Continue the Stay and to postpone the deadline for dispositional papers.

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Dispositional papers are currently due on or before November 1, 2017. DTSC and the United

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States stipulate to lodge the proposed Consent Decree by December 1, 2017.

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BACKGROUND

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On or about December 9, 2016, DTSC initiated the above-captioned case, seeking cost

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recovery and declaratory relief under sections 107(a) and 113(g) of the Comprehensive

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Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607(a)

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and 9613(g). The matter concerns the properties known as 711 and 750 Jackson Street, Benicia,

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Solano County, California (identified by Assessor’s Parcel number 0080-14-0440) and 938, 940,

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942, 945, 946, 952, and 954 Tyler Street; 963, 965, 967, 969, 971, 973, 977, 979, 981, 983, 985,

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989, and 991 Lincoln Street; and 900 and 954 Jackson Street, Benicia, Solano County, California

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(identified by Assessor’s Parcel numbers 0080-28-0010, 0080-28-0030, 0080-28-0040, 0080-28-

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0050) and all locations where hazardous substances released at, in, or from those addresses may

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come to be located in the future (the “Site”). On April 27, 2017 DTSC and the United States filed

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a Joint Notice of Tentative Settlement and asked the Court for additional time to file dispositional

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papers. On April 28, 2017 the Court filed a Minute Order that stayed the matter and instructed

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the parties to file dispositional documents on or before September 1, 2017. On August 31, 2017,

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the Parties filed a Stipulation and Proposed Order seeking additional time to file the proposed

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Consent Decree on or before November 1, 2017. ECF No. 8. The Parties stated that in the event

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the proposed Consent Decree could not be filed with the Court by November 1, 2017, the parties

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agreed to file a joint status report notifying the Court of the status of the approvals. Id. at 3. The

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Court approved the stipulated extension on August 31, 2017. ECF No. 9.

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SETTLEMENT PROGRESS

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DTSC and the United States have been negotiating in good faith to resolve this matter.

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While staff attorneys have agreed upon the terms of the Consent Decree that will settle this matter,

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Joint Status Report, Stipulation and [Proposed] Order to Continue the Stay (2:16-cv-02897-JAM-AC)

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authorized officials within these two government organizations still need to review and approve

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the terms of the Consent Decree.

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Under the settlement procedures for the United States, the settlement must be approved by

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the Associate Attorney General of the United States Department of Justice. Because of an

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intermediate review comment, the parties revisited a potential ambiguity in the draft Consent

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Decree and made minor adjustments to the document. Given the nature of the review process, the

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undersigned counsel for the United States believes that it should take no more than an additional

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30-day period to obtain the requisite review. In addition, the public, including the current and

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past owners of the Site, will be provided the opportunity to comment on the proposed Consent

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Decree. DTSC and the United States propose that the parties lodge a proposed Consent Decree

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approved by the authorized officials of both governments on or before December 1, 2017.

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After the proposed Consent Decree is lodged, DTSC and the United States agree that a 60-

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day comment period is appropriate. At the end of the comment period, DTSC will need to

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respond to public comments. Since we do not know the nature or the number of the comments

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that need to be answered, DTSC requests up to 30 days to respond to the comments. After those

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30 days, or sooner, if possible, the parties will file with the Court motions for approval of the

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proposed Consent Decree, unless public comments disclose facts or considerations that indicate

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the proposed Consent Decree is inappropriate, improper, or inadequate, in which case DTSC may

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withdraw or withhold its consent to entry of the Consent Decree.

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STIPULATION

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The parties hereby stipulate and agree that there is good cause for the Court to enter the

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following order:
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The matter is stayed until April 2, 2018. On or before December 1, 2017, the parties

shall file a proposed Consent Decree with the Court.
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In the event that a proposed Consent Decree cannot be filed with the Court by

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December 1, 2017, the parties agree to file a Supplemental Joint Status Report notifying the Court

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of the status of the approvals.

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Joint Status Report, Stipulation and [Proposed] Order to Continue the Stay (2:16-cv-02897-JAM-AC)

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IT IS SO STIPULATED.

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Dated: October 30, 2017

XAVIER BECERRA
Attorney General of California
SUSAN S. FIERING
Supervising Deputy Attorney General

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____________________________________
ROSE B. FUA
HEATHER C. LESLIE
Deputy Attorneys General
Attorneys for the California Department of
Toxic Substances Control

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Dated: October 30, 2017

JEFFREY H. WOOD
Acting Assistant Attorney General

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____________________________________
MARK A. RIGAU
Senior Trial Counsel
Environment and Natural Resources
Division
United States Department of Justice
Attorneys for the United States of America

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: _10/31/2017__________________

/s/ John A. Mendez_________________

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UNITED STATES DISTRICT COURT
JUDGE JOHN A. MENDEZ

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Joint Status Report, Stipulation and [Proposed] Order to Continue the Stay (2:16-cv-02897-JAM-AC)