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)

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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: (415) 744-6480 ax: (415) 744-6476 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: (415)703-5530 ax: (415)703-5480 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. -2- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page3 of 20 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. -3- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page4 of 20 1 5. The Defendant does not admit any of the allegations contained in the Complaint, and 2 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' 22 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. - 4- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page5 of 20 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. -5- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page6 of 20 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. -6- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page7 of 20 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. 22 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. -7- 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. -8- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page9 of 20 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. -9- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page10 of 20 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. - 10- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page11 of 20 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 Cnsent 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 Filed03/18/10 Page12 of 20 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 - 12 - .S. et al. v. Chevron U.S.A. Inc. Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page13 of 20 1 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 Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page14 of 20 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 - 14 - .S. etal. v. Chevron U.S.A. Inc. Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page15 of 20 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. - 15 - Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page16 of 20 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 - 16 - .S. et al. v. Chevron U.S.A. Inc. Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page17 of 20 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. - 17- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page18 of 20 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. - 18- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page19 of 20 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. - 19- Consent Decree Case3:10-cv-00375-JSW Document16 Filed03/18/10 Page20 of 20 1 e hereby consent to Entr of the foregoing Consent Decree: 2 3 OR SETTLING DEFENDAN: 4 5 ATED: ll J1 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. - 20- Consent Decree

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