United States of America et al v. Chevron U.S.A. Inc.

Filing 19

CONSENT DECREE. Signed by Judge Jeffrey S. White on 5/13/10. (jjo, COURT STAFF) (Filed on 5/13/2010)

Case3:10-cv-00375-JSW Document16

Filed03/18/10 Page1 of 20

1 GNACIA S. MORENO ssistant Attorney General
2 nvironment and Natual Resources Division

nited States Deparment of Justice
3 ashington, D.C. 20530

4 NN C. HURLEY (D.C. Bar No. 375676) rial Attorney
5 nvironmental Enforcement Section

nited States Deparment of Justice
6 01 Howard Street, Suite 1050

an Francisco, Californa 94105
7 hone: [phone]

ax: [phone]
8 mail: an.hurley~usdoi.gov

9

ttorneys for Plaintiff United States of America
of the State of California Y HACKENBRACHT enior Assistant Attorney General
eputy Attorney General

10 DMUD G. BROWN JR., Attorney General
11

12 ANIEL S. HAS (State Bar No. 157433)
13 55 Golden Gate Avenue, Suite 11000

an Francisco, Californa 94102-3664
14 hone: [phone]

ax: [phone]

15 mail: DanieI.Haris~doi.ca.gov
16

ttorneys for Plaintiff People of the State of Californa
17 x reI. the Californa Deparment of Fish and Game
18 19

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

20
21

ALIFORNIA DEPARTMENT OF FISH AND )
22
23

AME, )
Plaintiffs,
vs.

ITED STATES OF AMERICA and the PEOPLE)
Civil No. C 10-00375 JSW
)

F THE STATE OF CALIFORNIA ex reI. the)

) )

24
25

HEVRON U.S.A. INC.,

26 27
28

Defendant.

) ) ) ) ) )

CONSENT DECREE

A.

Plaintiffs, the United States of America ("United States"), on behalf of

the
Consent Decree

.S. et aL. v. Chevron U.S.A. Inc.

Case3:10-cv-00375-JSW Document16

Filed03/18/10 Page2 of 20

1

ational Oceanc and Atmospheric Administration ("NOAA") ofthe United States Deparment
f Commerce and the U.S. Deparment ofthe Interior ("DOl"), U.S. Fish and Wildlife Service

2

3 "USFWS"), and the People of the State of California ("State") ex reI. Californa Deparment of
4
5

ish and Game ("CDFG") are concurently filing a complaint alleging that Defendant Chevron
.S.A. Inc. is liable for civil claims for Natural Resource Damages arising from releases of Oil

6 7
8

d Hazardous Substances into Castro Cove, a small embayment within San Pablo Bay located
djacent to an industrial area that is the location of

facilities, including a petroleum refinery,

wned and operated by Defendant in Richmond, California (the "Refinery").
B.

9

Plaintiffs allege that there have been releases of Oil and Hazardous Substances,

10 'ncluding mercur and polycyclic aromatic hydrocarbons ("PARs") from the Refinery to Castro
11

ove, including through an historical discharge of wastewater to the south side of Castro Cove.

12
13

ead, which is a hazardous substance, was also released to the environment through lead pellets

eposited in a portion of the Castro Cove sediments from past skeet shooting activities at the

14
15

C.

NOAA, USFWS, and CDFG are the federal and State of California trustee

16 17

gencies (collectively, the "Trustees") for the Natual Resources injured by the releases of Oil
d Hazardous Substances into Castro Cove. As a designated Trustee, each agency is authorized

18 0 act on behalf ofthe public to assess injuries to those Natual Resources under its trusteeship
19 esultng from the releases of Oil and Hazardous Substances to the environment and to recover

20
21

amages to make the environment and the public whole.
D.

The Defendant and the Trustees have cooperated in assessing the Natual

22
23

esource Damages arising from the release of Oil and Hazardous Substances into Castro Cove,

d the Trustees undertook a restoration planing process to determine the restoration projects
use and injur to Natural

24 hat would most effectively restore or compensate for the loss of

25

esources resulting from the alleged releases of Oil and Hazardous Substances to the

27

E.

The Plaintiffs and the Defendant (collectively, "the

Paries") have consented to

28 he entry of this Consent Decree without trial of any issues, and the Plaintiffs and the Defendant
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

ereby stipulate to the Cour that in order to resolve the issues stated in the Complaint, this

2
3

onsent Decree should be entered. The Plaintiffs and the Defendant assert, and the Cour by
ntering this Consent Decree finds, that the Consent Decree has been negotiated in good faith, d that the Consent Decree is fair, reasonable, and in the public interest, and consistent with the
uroses of the federal and state statutes pursuant to which this claim is brought.

4
5

6

NOW THEREFORE, it is ORDERED AND DECREED as follows:

7
8
1.

I. JURISDICTION
This Cour has jurisdiction over the subject matter of

this action pursuant to 28

9

.S.C. §§ 1331 and 1345,33 U.S.C. § 1321(n), and 42 U.S.C. § 9613(b).
2.
urose of

10
11

This Cour also has personal jurisdiction over the Defendant. Solely for the
this Consent Decree and the underlying Complaint, Defendant waives all objections

12

d defenses that it may have to jurisdiction of the Cour or to venue in this District. Defendant

13 hall not challenge the terms of this Consent Decree or this Cour's jurisdiction to enter and
14
15

nforce this Consent Decree.

II. PARTIES BOUND
3.

16 17 18

This Consent Decree applies to and is binding upon Plaintiffs and upon Defendant

d its successors and assigns. Except as expressly provided in this Consent Decree, nothing
erein is intended or shall be construed to impose any duties upon or waive any rights of any
gency, division, subdivision or other governental entity of the State of California including,

19

20
21

ut not limited to, the Californa Attorney General, other than the State ex reI. CDFG. Any
hange in ownership or corporate status of a Par shall in no way alter that Par's

22 esponsibilities under this Consent Decree. Each signatory to this Consent Decree certifies that

23 he or he is fully authorized to enter into the terms and conditions of this Consent Decree and to
24 xecute and legally bind the paries to it.
25

III. OBJECTIVES
4.

26 27
28

The Paries to this Consent Decree agree that settlement of this action without

her litigation is in the public interest and that entry of the Consent Decree is the most
ppropriate means of resolving this action.
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

5. The Defendant does not admit any of

the allegations contained in the Complaint, and

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3

either the Defendant's paricipation in this Consent Decree nor any provision herein shall be

onstrued as an admission of liability for any purose.
iv. DEFINITIONS
6.

4
5

Unless otherwise expressly provided herein, terms used in this Consent Decree.

6 hat are defined in the Comprehensive Environmental Response, Compensation and Liability Act

7 "CERCLA"), 42 U.S.C. §§ 9601 et seq., or in related regulations promulgated under CERCLA
8

hall have the meanng assigned to them in CERCLA or such regulations. Whenever terms listed
elow are used in this Consent Decree, the following definitions shall apply.

9
10
11

"Castro Cove" or "Cove" shall mean that embayment located in San Pablo Bay within
ontra Costa County, Californa, immediately north of

the Chevron North Yard Impound Basin

12
13

d enclosed by a line drawn from the Point San Pablo Yacht Harbor to the West Contra Costa

14
15

"Castro Cove Contamination" shall mean the contamination of the sediments of Castro
ove by Oil and Hazardous Substaces that existed on or before the date oflodging of

this

16 17

onsent Decree.

"Damage Assessment Costs" shall mean all costs associated with the planng, design,
the Trustees' damage assessment process which addresses the

18 'mplementation and oversight of

19

xtent and quantification ofthe injur to, destruction of, or loss of

Natural Resources and the

20
21

ervices provided by these Natual Resources resulting from the Castro Cove Contamination, and

ith the planing of restoration or replacement of such Natural Resources and the services
rovided by those Natural Resources, and any other costs necessar to car out the Trustees'

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23

esponsibilities with respect to those Natural Resources injured as a result ofthe Castro Cove
ontamination.

24
25

"Defendant" shall mean Chevron U.S.A. Inc..

26 27

"Natual Resource Damages" shall mean all past and future damages, including loss of
se, restoration or rehabilitation costs, costs of resource replacement, or acquisition of equivalent

28 esources, or any other losses of resource services or values and Damage Assessment Costs
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

ising from or relating to injur to, destruction of, or loss of

Natual Resources resulting from

2 he Castro Cove Contamination. "Natual Resource Damages" shall not include futue "remedial
3

ction" or "response" as those terms are defined in Section 101(24 and 25) ofCERCLA, 42
.S.C. § 9601(24 and 25).

4
5

"Natual Resources" shall have that meanng set forth in Section 101(16) ofCERCLA, 42
.S.C. § 9601(16).

6

7
8

"Oil and Hazardous Substances" shall mean any hazardous substances, contaminants and
ollutants, including but not limited to petroleum, petroleum

constituents, including xylene,

9 oluene, benzene, and P AHs, and metals, including lead.

10
11

v. SETTLEMENT PAYMENTS
7.
Within fort-five (45) days after this Consent Decree has been lodged by Plaintiffs

12
13

'th this Cour, Defendant shall deposit the amount of

two milion, eight hundred fift thousand

ollars ($2,850,000) into an account bearing interest on commercially reasonable terms in a

14 ederally-charered ban (hereinafter, the "Castro Cove Escrow Account"): If

the Consent

15

ecree is not entered by this Cour and the time for any appeal of that decision has ru, or if this
our's denial of entry of

16
17 18 19

this Consent Decree is upheld on appeal, the monies placed in the

astro Cove Escrow Account, together with accrued interest thereon, shall be retued to
efendant. If

the Consent Decree is entered by this Cour, Defendant shall, within fifteen (15)
this Consent Decree, cause the sum of

usiness days ofthe Effective Date of

$2,850,000, plus all

20
21

ccrued interest thereon, to be paid to DOl, on behalf of

the Trustees, for the puroses set forth in

ection VII (TRUSTEE-SELECTED NATURAL RESOURCE RESTORATION PROJECTS).

22

uch payment shall be made by Electronic Funds Transfer ("EFT") to the U.S. Deparment of
the U.S.

23 ustice in accordance with the instructions that the Financial Litigation Unit of

24
25

ttorney's Offce for the Northern District of California shall provide to Defendant following
ntry of the Consent Decree by this Cour. Defendant shall send a transmittal

letter, indicating

26 hat the EFT has occured, to the Paries in accordance with Section XI (NOTICES) and to:

27 28

Deparment of the Interior

Natural Resource Damage Assessment and Restoration Program Attention: Restoration Fund Manager
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

1849 C Street, N.W. , Mail Stop 4449 Washington, D.C. 20240

2
3
he EFT and transmittal

letter shall reflect that the payment is being made to the "Natual

4
5

esources Damage Assessment and Restoration Fund, Account No. 14X5198 - Chevron/Castro

ove Richmond Refinery. DOl wil assign these fuds a special project number to allow the
ds to be maintained as a segregated account within the Deparment of

6 7
8

Interior Natural

esource Damage Assessment and Restoration Fund, Account No. 14X5198 (the "Chevron
astro Cove NRD Account").
8.

9

In addition to the payments made by Defendant pursuant to Paragraph 7 of this

10
11

onsent Decree, DOl, NOAA, and CDFG shall be paid by Defendant for their uneimbursed atual Resource Damage Assessment Costs resulting from the Castro Cove Contamination that
the

12 hey have incured through the Effective Date ofthe Consent Decree ("New Costs") if

13 'nvoices and supporting documentation for such New Costs are submitted to Defendant within
14
15
'nety (90) days following the Effective Date of

this Consent Decree. Defendant shall pay such

ew Costs (except any amounts which it contests in accordance with Paragraph 8(a)) within

1 6 ixty (60) days of the receipt of each invoice and its supporting documentation in accordance
17
18

ith the payment instructions to be provided by DOl, NOAA and CDFG.
a.

Defendant may object to payment of any New Costs ifit contends that
it alleges that a cost item that is

19

01, NOAA, or CDFGhas made an accounting error or if

20 'ncluded represents a cost that is not a Damage Assessment Cost. Such objection shall be made
21 'n writing within sixty (60) days of receipt of the invoice and must be sent to DOl (if

DOl's New

22
23

osts are being disputed), to NOAA (if

NOAA's New Costs are being disputed) or to CDFG (if

DFG's New Costs are being disputed) pursuant to Section XI (NOTICES). Any such objection

24 hall specifically identify the contested New Costs and the basis for the objection.
25
26 'nstance, the subject of

b.

If

Defendant objects to any New Costs, such objection shall be, in the first
informal negotiations between DOl, NOAA, or CDFG and Defendant.

27
28

uch period of informal negotiations shall not extend beyond twenty (20) days after the date that

itten notice of an objection to New Costs is sent to either DOl, NOAA, or CDFG, unless
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

therwse agreed to in writing by the Paries. If informal negotiations do not result in resolution

2

fthe objection, Defendant shall pay the New Costs that were subject to the objection within
the informal negotiations, unless the Defendant exercises its

3. hirt (30) days ofthe conclusion of

4 ight to petition the Cour in accordance with this Paragraph. Defendant may petition the Cour

5

'thin thirt (30) days of

the end of

the informal negotiation period for resolution of

the

6

bjection. Furher briefing and argument on the petition wil comply with the requirements of

7 he Cour.
8

VI. STIPULATED PENALTIES
9.

9
10
11

If Defendant fails to cause any payment to be made when due as required by

aragraph 7 above, Defendant shall pay to the United States and to the State a stipulated penalty
f $ 1 ,000 per day for each day that such payment is late. Such stipulated penalties shall be paid

12
13

alf to the United States and half to the State.
10.

If Defendant fails to cause any payment to be made when due as required by

14
15

aragraph 8 above, Defendant shall pay to the United States (if

payment was due to the United

tates) or to the State (if payment was due to the State) a stipulated penalty of $500 per day for
ach day that such payment is late.
11.

16
17
18

Any stipulated penalties, as described above, owing to the United States shall be

ue within thirt (30) days of receipt by Defendant of a written demand, and shall be paid by EFT
the U.S.

19 'n accordance with instructions to be provided by the Financial Litigation Unit of

20
21

ttorney's Office for the Northern District of Californa. Payment of stipulated penalties shall be
ccompaned by iransmittal correspondence stating that any such payment is for late payment of
ount(s) due under this Consent Decree and shall reference DOJ No. 90-11-3-09726 and the
ase name and number.
12.

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23

24
25

Any stipulated penalties, as described above, owing to the State shall be due

ithin thirt (30) days of receipt by Defendant of a written demand and shall be paid by trust

26 heck, certified check, or money order payable to the California Deparment of Fish and Game.

27
28

ayment of stipulated penalties shall be accompanied by transmittal correspondence stating that
y such payment is for late payment of amount( s) due under this Consent Decree and shall
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

Filed03/18/10 Page8 of 20

1 eference the Castro Cove Contamination, the case name and number, and reflect that it is a
2
3

ayment to the Fish and Wildlife Pollution Account. The check or money order shall be sent by
ertified mail to:

4
5

State of California Deparment of Fish and Game Office of Spil Prevention and Response
Attn: Katherine Verre-Slater, Staff Counsel III 1700 K Street, Suite 250
Sacramento, Californa 95811

6

7
8

13.

Defendant shall not deduct any stipulated penalties paid under this Section in

alculating its federal or state income taxes.
14.

9

If Defendant fails to pay stipulated penalties according to the terms of this

10
11

onsent Decree, Defendant shall be liable for interest on such penalties, as provided for in 28
.S.C. § 1961, accruing as ofthe date payment becomes due.
15.

12

The Paries agree that the stipulated penalties set forth in this Section VI are

13 easonable under the circumstances and are valid for puroses of Californa Civil Code sections
14 1671 and 3389.

15

16 17
18

VII. TRUSTEE-SELECTED NATURA RESOURCE RESTORATION PROJECTS
16.
Management and Application of Funds.

DOl shall, in accordance with law,

anage and invest those fuds paid pursuant to Paragraph 7 of this Consent Decree to the

19

hevron Castro Cove NRD Account and any retu on investments or interest accrued on the
hevron Castro Cove NRD Account for the joint use by the Trustees in connection with

20

21 estoration, rehabilitation or replacement of

Natual Resources affected by the Castro Cove

22

ontamination. DOl shall not make any charge against the Chevron Castro Cove NRD Account

23 or any investment or management services provided. DOl shall hold such fuds in the Chevron

24
25

astro Cove NRD Account, including retu on investments or accrued interest, subject to the
rovisions of this Consent Decree.
17.

26

The Trustees wil expend the fuds described in Paragraph 16 for the design,
restoration projects that

27 'mplementation, permitting (as necessar), monitoring, and oversight of

28 . mprove the ecological fuction of habitats in San Pablo Bay that at present are not fully
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

ctional and that are the same or similar tQ the intertidal mudflat, salt marsh, and shallow

2 ubtidal habitat that was injured in Castro Cove and for the costs to conduct a restoration

3

laning and implementation process.

4
5

18.

The Trustees' allocation of

fuds for specific projects is contained in a

estoration Plan jointly prepared by the Trustees, for which public notice, opportty for public

6 . nput, and consideration of public comment has been provided, in accordance with the

7 equirements ofthe law. The Trustees jointly retain the ultimate authority and responsibility to
8

se the fuds in the Chevron Castro Cove NRD Account to restore, rehabilitate or replace
atual Resources in accordance with applicable law, this Consent Decree, the Restoration Plan

9

10

d any Memorandum of Understanding among them. Defendant shall not be entitled to dispute,

1 1 . n any other foru or proceeding, any decision relating to the use of fuds or restoration efforts
12

der this Section, and the rights and protections afforded to Defendant under the covenant not to

13 ue and contribution protection provisions in Sections VIII (COVENANTS NOT TO SUE BY
14

LAINTIFFS) AND X (EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION)

15 hall not be affected in any way by the Trustees' use or administration of such fuds.
16 17
19.

VIII. COVENANTS NOT TO SUE BY PLAINTIFFS
In consideration of the payments that will be made by Defendant, and except as

18 pecifically provided in Paragraph 21 (Reservation of Rights) of this Section, the Plaintiffs
19

ovenant not to sue or to take administrative action against Defendant pursuant to the

20
21

omprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §
607(a)(4)(C) and (f), the Clean Water Act, 33 U.S.C. § 1321(f)(4), California Fish and Game
ode §§ 2014 and 12016, or any other applicable law, or commence any other judicial or

22
23

dministrative action, to recover Natural Resource Damages arising from the Castro Cove
ontamination. Notwithstanding the terms of the preceding sentence, nothing.

24

in this Paragraph

25 's intended to preclude or limit the Uni.ted States or the State of

California from taking response

26

ctions or exercising authorities that may be available to them under CERCLA, the Clean Water ct, the California Porter Cologne Water Quality Control Act, or other applicable statutory or

27
28

ommon law to seek relief other than Natual Resource Damages, including, but not limited to,
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

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1

ermitting and enforcement under the National Pollutant Discharge Elimination System program,

2
3

doption and implementation of TMDLs, issuance of cleanup or abatement orders, waste

ischarge requirements, and water quality certifications. These covenants not to sue shall take
ffect upon the Effective Date of

4
5

this Consent Decree. However, they are conditioned upon

efendant's satisfactory performance of

its obligations under this Consent Decree.

6 7
8

20.
owever, that this

The covenant not to sue in Paragraph 19 extends only to Defendant: provided.

covenant not to sue (and the reservations thereto) shall also apply to : (i)

hevron Corporation, Chevron Oronite Company LLC, Chevron Environmental Management
ompany, and successors and assigns of each of them and the Defendant, but only to the extent

9

10 hat the alleged liability of Chevron Corporation, Chevron Oronite Company LLC, Chevron
11

nvironmental Nanagement Company or the successor or assign of each of them or the
efendant is based on the alleged facts supporting the alleged liability of the Defendant; and (ii)

12

13 he officers, directors, and employees of Chevron Corporation, Chevron Oronite Company LLC,
14
15

hevron Environmental Management Company and the Defendant and the successors or assigns
f each of them, but only to the extent that the alleged liability of

the officer, director or
that entity.

16 17
18

mployee is based on said person's status as an officer, director or employee of

21.

Reservation of Rights
a.

Notwithstanding any other provision ofthis Consent Decree, the Plaintiffs

19 eserve, and this Consent Decree is without prejudice to, the right to institute proceedings in this

20
21

ction or in a new action seeking recovery of

Natual Resource Damages: (i) based on injur to,
the Castro Cove Contamination which

estruction of, or loss of

Natural Resources as a result of

22 esulted from conditions that were unown to the Trustees as of the date of lodging of this
23

onsent Decree, or could not have been reasonably ascertained by the Trustees from information

24

own to the Trustees as ofthe date oflodging ofthis Consent Decree; or (ii) based on
lodging of

25 'nformation received by the Trustees after the date of

this Consent Decree which

26 'ndicates that there was injur to, destruction of, or loss of

Natural Resources as a result ofthe

27

astro Cove Contamination which was of a type different than or magnitude significantly larger

28 han that known to the Trustees as of said date.
.S. et al. v. Chevron U.S.A. Inc.

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1

b.

The covenant not to sue set forth above does not pertain to any matters

2
3

ther than those expressly specified in Paragraph 19. The Plaintiffs reserve, and this Consent
ecree is without prejudice to, all rights against Defendant with respect to all other matters,

4 'ncluding but not limited to, the following: (i) claims based on a failure by Defendant to meet a
5 equirement of this Cónsent Decree; (ii) liability for response costs or the performance of

6 esponse actions or other cleanup activity necessitated by the Castro Cove Contamination
7

ursuant to CERCLA, the Clean Water Act, the Bay Protection and Toxic Cleanup program

8 Californa Water Code §§ 13390 et seq.), or any other applicable law; (iii) civil penalties
9 'mposed under the Clean Water Act, Californa Water Code § 13385, or any other applicable
10 aw; and (iv) criminal

liability.

11

ix. COVENANT NOT TO SUE BY DEFENDANT
22.

12
13

Subject to Paragraph 24 below, the Defendant hereby covenants not to sue or

ssert any administrative claims or causes of action against the Plaintiffs with respect to this

14
15

onsent Decree or with respect to Natual Resource Damages resulting from the Castro Cove
ontamination, including but not limited to:
a.

16

Any direct or indirect claim for reimbursement from the Hazardous

17

ubstance Superfud based on Sections 106(b)(2), 107, 111, 112, or 113 ofCERCLA, 42 U.S.C.

18 §§ 9606(b)(2), 9607, 9611,9612, or 9613, or any other provision oflaw;
19

b.

Any claim against Plaintiffs, including any deparment, agency or

20 'nstrentality ofthe United States or the State, under CERCLA Sections 107 or 113,42 U.S.c.
21 §§ 9607 and 9613, relating to Natual Resource Damages resulting from the Castro Cove

22
23

ontamination; and
c.

Any claims under the United States Constitution, the State Constitution,

24 he Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at

25

ommon law relating to Natural Resource Damages resulting from the Castro Cove
ontamination.
23.

26 27
28

Nothing in this Consent Decree shall be deemed to constitute approval or
Section 111 ofCERCLA, 42 U.S.C. § 9611, or
- 11 -

reauthorization ofa claim within the meaning of

.S. et al. v. Chevron U.S.A. Inc.

Consent Decree

Case3:10-cv-00375-JSW Document16

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1

o C.F.R. 300.700(d).

2

24.

The Defendant reserves its right to contest any claim allowed by Section VIII
this Consent Decree, and the Defendant

3 COVENANTS NOT TO SUE BY PLAITIFFS) of

4

oes not by consenting to this Consent Decree waive any other rights or defenses with respect to

5 uch claims, including the right to assert ~ounterclaims, except that the Defendant covenants not
6 0 assert, and may not maintain, any defense based upon principles of

waiver, res judicata,

7
8

ollateral estoppel, claim preclusion, issue preclusion, claim-splitting, or other defense based pon the contention that the claims that are allowed by Section VIII of this Consent Decree were
r should hav.e been brought in the instant case.

9

10
11

x. EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
25.

Nothing in this Consent Decree shall be construed to create any rights in, or grant

12

y cause of action to, any person not a Par to this Consent Decree. The preceding sentence

13 hall not be construed to waive or nullfy any rights that any person not a signatory to this
14
15
onsent Decree may have under applicable law. Each ofthe Paries expressly reserves any

and

II rights (including, but not limited to, any right to contribution), defenses, claims, demands, and
auses of action which each Par may have against any person not a Par hereto.

16 17

26.

The Paries agree, and by entering this Consent Decree this Cour finds, that this

18 ettlement constitutes a judicially-approved settlement for puroses of Section 11 3

(f)(2) of

19

ERCLA, 42 U.S.C. § 9613(f)(2), and that the Defendant, and the other persons and entities
this Consent Decree, are entitled, as

20 'ncluded under the Covenant Not to Sue in Paragraph 19 of

21

f the Effective Date, to protection from contribution actions or claims as provided by CERCLA
ection 1 13

22
23

(f)(2), 42 U.S.C. § 9613(f)(2), or as may be otherwise provided by law, for "matters

ddressed" in this Consent Decree. The "matters addressed" in this Consent Decree are Natual
esource Damages, as that term is defined in Paragraph 6 of this Consent Decree.
27.

24
25

The Defendant shall, with respect to any suit or claim brought by it for matters

26 elated to this Consent Decree, notify the United States and the State in writing no later than 60

27
28

ays prior to the initiation of such suit or claim.
28.

The Defendant shall, with respect to any suit or claim brought against it for
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atters related to this Consent Decree, notify in writing the United States and the State within 10
ays of service of

2
3

the complaint on Defendant. In addition, Defendant shall notify the United

tates and the State within 10 days of service or receipt of any Motion for Sumar Judgment
d within 10 days of receipt of any order from a cour setting a case for triaL.

4
5

XI. NOTICES
29.

6

Unless otherwise specified herein, whenever notifications, submissions, or

7
8

ommuncations are required by this Consent Decree, they shall be made in writing and
ddressed as follows:

9 10
11

o the United States:

hief, Environmental Enforcement Section
nvironment and Natual Resources Division

ox 7611 Ben Franlin Station
ashington, DC 20044-7611 e: DOJ No. 90-11-3-09726

12
13

14 harles McKinley

ssistant Field Solicitor
15 1111 Jackson Street

uite 735 16 akland, Californa 94607
17
18
hristopher Plaisted

19

OAA-GCNR 01 W. Ocean Blvd., Suite 4470 ong Beach, California 90802
o the State

20
21

anel S. Haris
22
23

eputy Attorney General 55 Golden Gate Avenue, Suite 11000 an Francisco, Californa 94102-3664

24

25 atherine Verre-Slater
taff Counsel III
26 eparment of Fish and Game

ffice of Spil Prevention and Response
27 1700 K Street, Suite 250
acramento, Californa 95811

28
.S. et al. v. Chevron U.S.A. Inc.
- 13 -

Consent Decree

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1

o Defendant

2
3

imothy R. Knutson enior Counsel
hevron U.S.A. Inc. aw Deparment 1 1 1 Bolinger Canyon Road

4
5

RI-Y RM 4214 an Ramon, Californa
erald F. George
ilsbur Winthrop Shaw Pittman LLP

6 7
8

o Fremont Street an Francisco, California 94105
30.

9

Any Par may, by written notice to the other Paries, change its designated notice

10 ecipient or notice address provided above.
11

31.

Notices submitted pursuant to this Section shall be deemed submitted upon

12

ailing unless otherwse provided in this Consent Decree or by mutual agreement of the Paries

13 'n writing.
14
15 16

XII. EFFECTIVE DATE
32.
The Effective Date of this Consent Decree shall be the date of the entry of

this

onsent Decree by the Cour or a motion to enter the Consent Decree is granted, whichever
ccurs first, as recorded on the Cour's docket. Provided, however, that if

17

the Cour permits a

18 hird par to intervene in this matter and that third par challenges this Consent Decree, the

19

ffective Date shall mean (1) the date after entry of this Consent Decree on which all applicable

20 ppeal periods have expired without an appeal being filed, or (2) if an appeal is taken after entry, .

21 he date on which the District Cour's judgment is affirmed and there is no fuher right to

22 ppellate review.
23

XIII. RETENTION OF JURISDICTION
33.

24
25 26

The Cour shall retain jurisdiction over this case until termination of this Consent

ecree for the purose of effectuating or enforcing compliance with the terms of this Consent

27
28
34.

XIV. RETENTION OF RECORDS
Until three years after termination of

this Consent Decree pursuant to Section XX
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1

TERMINATION), the Defendant shall retain, and shall.instruct its contractors and agents to

2
3

reserve, all non-identical copies of all documents, records, or other information (including

ocuments, records, or other information in electronic form) in their or their contractors' or gents' possession or control, or that come into it or its contractors' or agents' possession or

4
5

ontrol, that relate in any maner to the Castro Cove Contamination and/or the Natual Resource
amages. At any time during this information-retention period, upon request by the Plaintiffs,

6 7

efendant shall promptly provide copies of any documents, records, or other information

8 equired to be maintained under this Paragraph.

9 10
11

35.

At the conclusion of

the information-retention period provided in the preceding

aragraph, Defendant shall notify the Plaintiffs in writing that it wil, upon written request by
OAA, DOlor CDFG, deliver any such documents, records, or

other information to the

12 equesting agency. Defendant may assert that certain documents, records, or other information is
13
rivileged under state or federal

law. If Defendant asserts any such privilege, it shall provide

14
15

laintiffs with a privilege log relating to the subject documents, records or other information.

efendant shall retain the documents, records or other information that are withheld as privileged

16

til any privilege disputes relating to those documents are resolved. Except as provided in this
aragraph with respect to assertedly privileged documents, records or other information, at any

17

18 ime after ninety days of such written notification, Defendant may, subject to its obligations
19

der Paragraph 36, destroy or otherwise dispose of such documents without fuher obligation

20 0 provide notice to NOAA, DOlor CDFG.
21

36.

This Consent Decree in no way limits or affects any right to obtain information

22
23

eld by the United States or the State pursuant to applicable federal or state laws, regulations, or
ermits, nor does it limit or affect any duty or obligation of

Defendant to maintain documents,

24 ecords, or other information imposed by applicable federal or state laws, regulations or permits.

25

xv. MODIFICATION
37.

26 27
28

The terms of this Consent Decree may be modified only by a subsequent written

greement signed by the Paries or as ordered by the Cour upon the noticed motion of any Par.
ere any modification constitutes a material change to any terms of this Consent Decree, it
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

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1

hall be effective only upon approval by the Cour.

2
3

XVI. PUBLIC NOTICE
38.

This Consent Decree shall be lodged with the Cour for a period of not less than
or

4 hirt (30) days for public notice and comment. The Plaintiffs reserve the right to withdraw

5

ithhold their consent if the comments regarding the Consent Decree disclose facts or
onsiderations indicating that the Consent Decree is inappropriate, improper or inadequate.

6

7
8

efendant consents to entry of this Consent Decree without fuher notice and agrees not to
ithdraw from or oppose entry of this Consent Decree by the Cour or to challenge any provision.
f the Consent Decree, uness the Plaintiffs have notified Defendant in writing that they no

9

10 onger support entry of the Consent Decree.
11

XVII. SIGNATORIES/SERVICE
39.

12
13

This Consent Decree may be signed in counterpars, and facsimile, photocopy or
this Consent

DF signatues shall be deemed the same as original signatues. The validity of

14
15

ecree shall not be challenged on the basis of counterpars or non-original signatures..
40.

With regard to matters relating to this Consent Decree and its enforcement and the

16 iling of the Complaint, Defendant shall identify on the attached signatue page the name,
17 18

ddress, and telephone number of an agent who is authorized to accept service of process by mail
n behalf of that entity with respect to all matters arising under or relating to this Consent Decree

19

d the fiing of the Complaint. Defendant agrees to accept service of process by mail with

20 espect to all matters arising or relating to this Consent Decree and to waive the formal service
21 equirements set forth in Rules 4 and 5 ofthe Federal Rules of

Civil Procedure and any

22 pplicable local rules of this Cour, including, but not limited to, service of a sumons.
23

XVIII. COSTS OF SUIT
41.
The Paries shall bear their own costs ofthis action, including attorneys' fees,

24
25

xcept that the Plaintiffs shall be entitled to collect the costs (including attorneys' fees) incured

26 . n any action necessar to enforce this Consent Decree.
27 28
42.

xiX. INTEGRATION
This Consent Decree constitutes the final, complete, and exclusive agreement and
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1

derstanding among the Paries with respect to the matters addressed in the Consent Decree and

2 upersedes all prior agreements and understandings, whether oral or written, concernng the
3 ettlement embodied herein. No other document, nor any other representation, inducement,

4 greement, understanding, or promise, constitutes any par of this Consent Decree or the
5 ettlement it represents, nor shall it be used in construing the terms of this Consent Decree.
6 7
8

xx. TERMINATION
43.

This Consent Decree shall terminate upon granting of a motion duly fied by the

efendant, demonstrating that Defendant has satisfactorily completed the payments required by

9

ection V (SETTLEMENT PAYMENTS) and payment of any outstanding stipulated penalties or
Section II

10 'nterest under Section VI (STIPULATED PENALTIES). The provisions and effect of

1 1 PARTIES BOUND), Section VIII (COVENANTS NOT TO SUE BY PLAINTIFFS), Section

12 X (COVENANT NOT TO SUE BY DEFENDANT), Section X (EFFECT OF SETTLEMENT
13

ND CONTRIBUTION PROTECTION) and Section XIV (RETENTION OF RECORDS) shall
the Consent Decree.

14 urive termination of

15

XX. FINAL JUDGMENT
44.
Upon approval and entry of this Consent Decree by the Cour, this Consent

16 17
18

ecree shall constitute a final judgment of the Cour as to the Paries and matters addressed

19

20
21

0 ORDERED

22
23

Dated and entered this

13th

day of

May

,2001

24
25

United States District Judge

26 27
28
.s. et al. v. Chevron U.S.A. Inc.

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Consent Decree

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1

e hereby consent to the Entry ofthe foregoing Consent Decree, subject to the Notice and

2
3

omment provisions of Section XVI ofthis Consent Decree:

4
5

OR THE UNITED STATES:

6

1/11/10

7
8

(i

~RE~j(~
C.

Assistant Attorney General Environment and Natual Resources Division United States Deparment of Justice

9
. 10

A TED: f / / 3 //0

11

(/

Trial Attorney

Environmental orcement Section
12
13

United States Deparment of Justice

14
15

16

17
18

19

20.
21

22
23

24
25

26 27
28
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

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1

e hereby consent to the Entr of

the foregoing Consent Decree, subject to the Notice and

'2
3

omment provisions of Section XVI of ths Consent Decree:

4 OR THE PEOPLE OF

THE STATE OF CALIFORNIA EX REL. THE CALIFORNIA

5

EP ARTMENT OF FISH AND GAM

6

7
8

ATED: ki l'1J~00i-

9
10
11

WL~
Admstrator
Offce of Spil Prevention and Response
Californa Deparent of Fish and Game

12
13

14
15

16 17
18

19

20
21

22
23

24
25

26 27 28
.S. et al. v. Chevron U.S.A. Inc.

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Consent Decree

Case3:10-cv-00375-JSW Document16

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1

e hereby consent to Entr of

the foregoing Consent Decree:

2
3

OR SETTLING DEFENDAN:

4
5

ATED: llç JÄ1 iolD

t1 na ~C 1 v~r---l, ~
J
Assistat Secreta
Chevron U.S.A. Inc.

6 7
8

9

10.
, 11

ame and Address of Agent for service of process:

12
13

orporation Service Company (CSC) 730 Gateway Oaks Drive, Suite 100 acramento, CA 95833 800) 222-2122

14
15

16 17

18
19

20
21

22
23

24
25

26 27
28
oS. et al. v. Chevron U.S.A.

Inc.

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Consent Decree