HomeMy WebLinkAbout03 U.S. GOV V MONTROSE 09-03-96, ~ L^w O~c~s o~
A PROFESSIONAL CORPORATION
701 SOUTH PARKER STREET, SUITE 7000 · ORANGE, CA 928684720 · (714) 558-7000 · FAX (714) 835-7787
NO. 3
9-3-96
August 9, 1996
DIRECT DIAL (714) 564-2605
,DIRECT FAX (714) 565-2505
Honorable Mayor and Members of the City Council
City of Tustin
300 Centennial Way
Tustin, Ca. 92781
Re: United States Government v. Montrose Chemical Corporation, et al.
Dear Mayor and Members of the City Council:
This letter is intended to give you a current briefing on the status of the litigation,
as captioned above, and which has involved the City of Tustin ("City") as a third-party
Defendant. As you know, the City was included in this action by virtue of cross-complaints
filed by the eight corporate Defendants in the principal action. While the allegations, in
my opinion, were totally groundless, the fact remains that the City was obligated to appear
and defend.
Pursuant to an agreement.between the County Sanitation Districts of Orange
County and the City of Tustin, our Firm provided the defense of your City. That case
ended by a negotiated Consent Decree between the Government and all of the
approximate 200 local government agencies in Los Angeles, Orange, San Bernardino and
Ventura Counties, including the City. The Trial Judge, Honorable A. Andrew Hauk, in fact
approved the agreement, but his decision was taken on appeal by the corporate
Defendants. The Ninth Circuit Court of Appeal has reversed Judge Hauk's order and
remanded it to him for further consideration, based on the fact that the Appellate Court did
not believe that Judge Hauk had sufficient facts before him, nor had he adequately
reviewed the record that was presented to him by the Court's appointed Special Master,
and therefore, improperly entered its Judgment.
T~RRY C. ANDRUS · MARY E. BINNING · M. LOIS BOBAK · BETTY C. BURNETr · JOHN F_,. CAVANA~ · CRAIG O. FARRING'rON
RODELL R. FICK · JOSiaH W. FORBATH · LOIS E./EFFREY · MAGDALENA LONA-WIANT · THOMAS F. N1XON · JASON E. RESN1CK
JOHN R. SHAW · KE. NNARD R. SMART, JR. · DANIE I. SPENCE · DANIEL lC. SPRADLIN · ALAN R. WATTS · THOMAS L. WOODRUFF
Honorable Mayor and Members of the City Council
August 9, 1996
Page 2
Based on that reversal, a decision was required to either: (1) take a chance that
the case would be dismissed in its entirety; (2) have Judge Hauk simply take the original
Consent Decree with all the supporting data, review it in detail and then re-enter his
judgment; or (3) have all the parties negotiate a new Decree.
The Liaison Counsel (including the undersigned) for the ten groups of local
agencies unanimously agreed that the best strategy, in order to protect the interests of
each individual entity, was to negotiate a new Consent Decree, provided it did not require.
any further financial contribution or impose new obligations upon the entities. Those basic
terms were agreed to at the outset by the United States Environmental Protection Agency
and the State of California, and thus, negotiations for a new Consent Decree were
undertaken.
The terms for the new Consent Decree have now been reached, and there is no
additional financial contribution required of anyone. The agreement provides for detailed
reasoning and findings as to why the contribution that was originally made is a fair and
appropriate settlement amount. There are no additional burdens incurred by the local
government entities, nor have any rights been waived.
The Consent Decree does require that each entity must approve and execute this
agreement. Since all parties to this amended Consent Decree have been requested to act
upon this as soon as possible, I would recommend that such actions be taken by your City
at the next available City Council Meeting. It will then be submitted to Judge Hauk for
review, hearing and decision, and we are confident that this agreement and the future
actions by Judge Hauk will withstand any appeal that might be filed as a challenge by the
corporate Defendants.
TLW:pj
City Manager
City Attorney
Very truly yours,
/, ~D~=r,~tspEClAL LEGAL COUNSEL
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES OF AMERICA and
STATE OF CALIFORNIA,
Plaintiffs,
V.
MONTROSE CHEMICAL CORPORATION
OF CALIFORNIA, et al.,
Defendants.
AND RELATED COUNTER, CROSS,
AND THIRD PARTY ACTIONS.
Case No. CV 90-3122-AAH(JRx)
AMENDED CONSENT
DECREE
FOR CITY OF CITY OF TUSTIN, A Municipal Corporation:
WE HEREBY CONSENT to the entry of the Amended Consent Decree in United
States, et al. v. Montrose Chemical Corporation of California, et al., No. CV 90-3122-
AAH(JRx), subject to the public notice and comment requirements of 28 C.F.R. §50.7.
Date:
By
Mayor
ATTEST:
By
City Clerk
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
UNITED STATES OF AMERICA and
STATE OF CALIFORNIA,
Plaintiffs,
Mo
MONTROSE CHEMICAL CORPORATION
OF CALIFORNIA, et al.,
Defendants.
Case No. CV 90-3122-AAH(JRx)
AMENDED CONSENT
DECREE
AND RELATED COUNTER, CROSS,
AND THIRD PARTY ACTIONS.
FOR CITY OF CITY OF TUSTIN, A Municipal Corporation:
WE HEREBY CONSENT to the entry of the Amended Consent Decree in ~
States, et al. v. Montrose Chemical Corporation of California, et al, No. CV 90-3122-
AAH(JRx), subject to the public notice and comment requirements of 28 C.F.R. {}50.7.
Date:
By_
Mayor
ATTEST:
By,
City Clerk
28
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOHN C. CRUDEN
Deputy Assistant Attorney General
Environment & Natural Resources Division
United States Department of Justice
ADAM M. KUSHNER
WILLIAM A. WEINISCHKE
KATHRYN SCHMIDT
STEVEN O'ROURKE
JON A. MUELLER
PHILLIP A. BROOKS
Environmental Enforcement Section
Environment & Natural Resources Division
United States Department of Justice
P.O. Box 7611
Washington, D.C.. 20044
Telephone: (202) 514-4046
NORA M. MANELLA
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, civil Division
KURT ZIMMERMAN
Assistant United States Attorney
Federal Building
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: (213) 894-2408
Attorneys for Plaintiff United States of America
(See next page for names of additional counsel.)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF C~IFORNIA
UNITED STATES OF AMERICA and
STATE OF CALIFORNIA,
Plaintiffs, )
)
v. )
)
MONTROSE CHEMICAL CORPORATION )
OF CALIFORNIA, et al., )
)
)
Defendants. )
)
)
AND RELATED COUNTER, CROSS,
AND THIRD PARTY ACTIONS.
NO. CV 90-3122-AAH (JRx)
AMENDED
CONSENT DECREE
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DANIEL E. LUNGREN
Attorney General of the State of California
JAN S. STEVENS
CHARLES GETZ
Assistant Attorneys General
JOHN A. SAURENMAN
CLARA L. SLIFKIN
BRIAN W. HEMBACHER
Deputy Attorney General
300 South Spring Street
Los Angeles, California 90013
Telephone: (213) 897-2702; (213) 897-9442
SARA J. RUSSELL
Deputy Attorney General
2101 Webster Street
Oakland, California 94612
Telephone: (510) 286-0845
Attorneys for Plaintiff State of california
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
AMENDED CONSENT DECREE
This Amended Consent Decree ("Amended Decree") is made and
entered into by and among the United States of America ("the United
States"), on behalf of the National Oceanic and Atmospheric
Administration ("NoAA"), the Department of the Interior ("DOI"),
and the United States Environmental Protection Agency ("EPA"), and
the State of California ("State"), on behalf of the State Lands
Commission, the Department of Fish & Game, and the Department of
Parks and Recreation, the Department of Toxic Substances Control
("DTSC"), and the California Regional Water Quality Control Board,
Los Angeles Region ("Regional Board"), Defendant County Sanitation
District No. 2 of Los Angeles County ("LACSD"), and the other
entities listed in Attachment A hereto~ which are hereafter
collectively referred to as the "Settling Local Governmental
Entities" except where otherwise specifically provided. This
Amended Decree is not intended to affect in any way the United
States' and the State's claims against any entity other than LACSD
and those other entities listed in Attachment A.
INTRODUCTION
The United States, on behalf of NOAA and DOI in their
capacities as natural resource trustees (hereafter the "Federal
Trustees"), and on behalf of EPA, and the State, on behalf of the
State Lands Commission, the Department of Fish & Game and the
Department of Parks and Recreation in their capacities as natural
resource trustees (hereafter the "State Trustees") (the Federal
Trustees and State Trustees collectively are referred to as "the
Trustees"), filed the original complaint in this action on June 18,
1990, under Section 107 of the Comprehensive Environmental
1.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Response, Compensation, and Liability Act of i980, as amended
("CERCLA"), 42 U.S.C. S 9607, seeking, inter alia-, recovery for
damages, including damage assessment costs and related response
costs, for injury to, destruction of, and loss of natural resources
resulting from releases of hazardous substances, specifically
including dichlorodiphenyltrichloroethane and its metabolites
(hereafter collectively "DDT"), and polychlorinated biphenyls
(hereafter "PcBs"), from facilities in and around Los Angeles,
California, into the environment, including the area defined herein
as the Montrose Natural Resource Damages Area (the "Montrose NRD
Area"), and for response costs incurred and to be incurred by EPA
in connection with releases of hazardous substances into the
environment from the Montrose Chemical Corporation site located at
20201 South Normandie Avenue, Los Angeles, California. The
original complaint was amended on June 28, 1990, and again on
August 16, 1991 ("Second Amended Complaint" or "Complaint").
Defendant LACSD filed its answer to the Complaint and counterclaims
against the United States and the State on September 30, 1991.
In the First Claim for Relief of the Complaint, plaintiffs
asserted a claim against ten defendants, including LACSD, under
Section 107(a) (1-4) (C) of CERCLA, 42 U.S.C. § 9607(a) (1-4~) (C), for
the alleged natural resource damages, including damage assessment
costs and related response costs. In the Second Claim for Relief
of the Complaint, the United States asserts a claim for recovery of
costs incurred and to be incurred by EPA in response to the release
or threatened release of hazardous substances into the environment
at the Montrose NPL Site, as described in the Complaint, pursuant
to Section 107(a) (1-4) (A) of CERCLA, 42 U.S.C. § 9607(a) (1-4) (A).
,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
The Second Claim for Relief, brought at the request of and on
behalf of EPA, does not allege liability on the part of any of the
Settling Local Governmental Entities.
EPA is the lead agency with regard to the conduct of 'response
activities at the Montrose NPL Site. The State, through its
support agencies DTSC and the Regional Board, also participates in
Montrose NPL Site response activities consistent with Subpart F of
CERCLA's National Contingency Plan, 40 C.F.R. ~S 300.500 - 300.525.
While the State has not filed a claim in the instant action to
recover response costs incurred and to be incurred at the Montrose
NPL Site, DTSC and the Regional Board have incurred response costs
in connection with the Montrose NPL Site.
The Montrose NPL Site was placed on the National Priorities
List of Superfund Sites in October 1989. CERCLA and the National
Contingency Plan ("NCP") require that a site investigation gather
the data necessary to assess the threat to human health and the
environment of actual or threatened releases of hazardous
substances from a facility, to include any place where a hazardous
substance has come to be located. Consistent with those
requirements, EPA's continuing investigation of the Montr0se NPL
Site indicates that the Montrose NPL Site is contaminated
significantly by DDT and other hazardous substances released during
the manufacture of DDT, with DDT and those other hazardous
substances present at the Montrose NPL Site in soil, groundwater,
stormwater channel sediments, and sediments in portions of LACSD's
Joint Outfall ("J.O.") "D" and District 5 Interceptor sewer lines.
As a result of the ongoing investigation of the Montrose NPL Site,
a series of response activities is currently underway, including a
·
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
remedial investigation and a feasibility study ("RI/FS") of the DDT
contaminated soil and groundwater underlying the Montrose DDT Plant
Property and surrounding areas of the Montrose NPL Site, the
conduct of a time-critical removal action at the Montrose NPL Site
to investigate and remove Montrose DDT from soil in residential
areas within four blocks of the Montrose DDT Plant Property, the
conduct of an Engineering Evaluation and Cost Analysis ("EE/CA") to
investigate the aerial fallout of DDT dust emitted from the former
Montrose DDT plant on residential and commercial areas in close
proximity to the Montrose DDT Plant Property, and the conduct of a
removal action to remove DDT contaminated sediments from the J.O.
"D" sewer adjacent to and downstream of the Montrose DDT Plant
Property.
In addition, as a result of information developed and
assembled, inter alia, in connection with the Trustees' damage
assessment relating to DDT and PCB contamination of the offshore
area alleged in the First Claim for Relief in this action, EPA has
extended its Montrose NPL Site investigation to include that
portion of the Montrose NRD Area comprised of the offshore area
contaminated by DDT and PCBs released into the LACSD sewer lines
and subsequently deposited in the sediments of the Palos Verdes
shelf near the White's Point Outfall. EPA has not, however,
extended its investigation of the Montrose NPL Site to include the
Los Angeles and the Long Beach Harbors (other than the Consolidated
Slip in Los Angeles Harbor).
Certain of the defendants filed cross-complaints and third
party complaints alleging that some or all of the Settling Local
Governmental Entities named in Attachment A are also liable for
.
1 damages and response costs related to the alleged natural resource
2 injuries associated with the Montrose NRD Area and for response
3 costs at the Montrose NPL site. The bases for liability on the
4 fart of the Settling Local Governmental Entities as alleged in the
5 cross-complaints and third party complaints relate primarily to the
6 involvement of those entities in the provision of public services
7 such as the collection, conveyance, treatment, and disposal of
8 wastewater and disposal of residuals; collection and conveyance of
9 stormwater runoff; ownership and operation of portions of the
10 contaminated facilities, including portions of the Montrose NPL
11 Site; and pest and vector control; and their alleged involvement as
12 arrangers for transport, disposal .or treatment and/or as
13 transporters of hazardous substances; and their alleged involvement
14 as owner/operators of facilities where hazardous substances have
15 been treated or disposed. These claims have been brought under
16 federal and state law.
17 The federal law claims, brought under CERCLA, are based in
18 part on the Settling Local Governmental Entities' alleged
19 involvement as present and past owners and/or operators of
20 facilities at which hazardous substances were disposed by the
21 generator defendants, as persons who arranged for transport,
22 disposal or treatment of hazardous substances, and as persons who
23 accepted hazardous substances for transport to disposal or
24 treatment facilities. As alleged in the cross-complaints and the
25 third party complaints, the state law claims, brought under
26 statutory and common law, are based in part on the Settling Local ~
27 Governmental Entities' alleged statutory and common law l
28 responsibilities, alleged involvement in releases of various
,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
substances, their relationship to other dischargers, and their
alleged responsibility for contamination and conditions in the
contaminated areas, including the Montrose NPL Site. A broad range
of relief is sought in the cross-complaints and third party
complaints, including costs incurred and to be incurred and
damages, including natural resource damages relating to the
allegations in the First Claim for Relief and to the Montrose NPL
Site.
Subsequent to the filing of this action, plaintiffs and the
Settling Local Governmental Entities entered into settlement
negotiations under the supervision of Special Master Harry V.
Peetris pursuant to Pretrial Order No. 1, dated March 18, 1991.
Those negotiations occurred over the ensuing seventeen month period
and resulted in a consent decree that resolved the liability of all
of those entities to plaintiffs for natural resource damages and
for response costs at the Montrose NPL Site as defined in the
consent decree approved by the District Court on April 26, 1993
(the "1993 Decree"). The District Court approved the 1993 Decree
without the Special Master having informed the District Court of
the total amount of damages being sought by the Trustees in order
to avoid the impairment of the ongoing settlement negotiations with
the non-settling defendants.
At the time of the settlement negotiations concerning the 1993
Decree, the signatories to the 1993 Decree (including these
Settling Local Governmental Entities) and the other defendants were
aware that in addition to response activities undertaken under
CERCLA at the Montrose NPL Site, EPA had conducted a preliminary
evaluation under CERCLA of contamination in the Santa Monica Bay
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(hereafter referred to as "the Santa Monica Bay CERCLIS Site"),
which included an evaluation of portions of the Palos Verdes shelf.
The signatories to the 1993 Decree further understood that on
September 17, 1990, after the filing of this action, EPA determined
that it would conduct no further investigation or response
activities under CERCLA regarding the Santa Monica Bay CERCLIS
Site. The signatories to the 1993 Decree understood that EPA's "no
further action" determination was subject to reconsideration by
EPA, and that nothing in the 1993 Decree was intended to affect the
authority or jurisdiction of EPA to take further action. Moreover,
the 1993 Decree specifically reserved the authority of EpA to take
further action. The signatories to the 1993 Decree also understood
that DDT contamination on the Palos Verdes shelf was excluded from
EPA's preliminary evaluation of the Santa Monica Bay CERCLIS Site
and was deferred for possible future evaluation as part of the
Montrose NPL Site in the event that EPA decided to extend the
Montrose NPL Site investigation to the Palos Verdes shelf, which
EPA has now done.
In addition, the signatories to the 1993 Decree understood at
the time of the negotiation of the 1993 Decree that EPA's
investigation of the Montrose NPL Site was continuing. At that
time, the signatories to the 1993 Decree understood that the
Montrose NPL Site inVestigation included the LACSD J.O. "D" and
District 5 Interceptor sewer lines, but that the investigation had
not extended to the Palos Verdes shelf. The signatories to the
1993 Decree further understood that the Montrose NPL Site
investigation included the stormwater pathway from the former
Montrose DDT Plant Property downstream to the Consolidated Slip,
,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2'6
27
28
but not beyond. The signatories to the 1993 Decree also understood
that the geographical extent of the Montrose NPL Site investigation
was subject to continued re-evaluation by EPA in the course of the
continued investigation, and the signatories to the 1993 Decree
agreed that nothing in the 1993 Decree was intended to affect the
authority or the jurisdiction of EPA to extend the Montrose NPL
Site investigation or to take other response activities with
respect to the Palos Verdes shelf, and accordingly the 1993 Decree
specifically reserved the authority of EPA to take such response
activities.
The terms of the 1993 Decree were based on, inter alia,
plaintiffs' evaluation of factors including, but not. limited to,
the nature and extent of the Settling Local Governmental Entities'
involvement in Causing the alleged contamination; these entities'
past efforts to control and address the sources of such
contamination; the alleged natural resource damages and estimated
cost of restoration activities on the Palos Verdes shelf portion of
the Montrose NRD Area, including possible capping, dredging, and
treatment of contaminated sediments, and replacement or acquisition
of equivalent resources; the contamination at the Montrose NPL Site
and estimated cost of response activities at relevant areas of the
Montrose NPL Site; past and ongoing efforts of others such as
Montrose, in studying contamination at the Montrose NPL Site; and
the Settling Local Governmental Entities' cooperation in resolving
their liability at a relatively early stage of this litigation.
Pursuant to the terms of the 1993 Decree, the Settling Local
Governmental Entities agreed to make payments of $42,200,000 for
natural resource damages and $3,500,000 for response costs. To
i date, in accordance with the termsand conditions of the 1993
2 Decree, the Settling Local Governmental Entities have made 9ayments
3 for damages to natural resources and for response costs into escrow
4 accounts established and maintained by LACSD and the city of Los
5 Angeles, respectively, pursuant to the terms and conditions of the
6 1993 Decree. Under the terms and conditions of the 1993 Decree,
7 the Settling Local Governmental Entities have paid into the escrow
8 account maintained by LACSD the following funds for natural
·
9 resource damages: i) $1,500,000 pursuant to Paragraph 8.A of the
10 1993 Decree; ii) $7,800,000'pursuant to Paragraph 8.B of the 1993
11 Decree; and iii) $10,000,000, $9,000,000, and $8,000,000 in three
12 payments made pursuant to Paragraph 10.A of the 1993 Decree. In
13 addition, under the terms and conditions of the 1993 Decree, the
14 Settling Local Governmental Entities have paid into the escrow
15 account maintained by the city of Los Angeles the total amount of
16 $3,500,000 for response costs pursuant to the terms of Paragraph
17 17.A of the 1993 Decree.
18 On March 21, 1995, the Ninth Circuit Court of Appeals reversed
19 the decision of the District Cour~ approving and entering the 1993
20 Decree, and remanded the cause to the District Court to determine,
21 in light of further information provided by .plaintiffs, "the
22 proportional relationship between the $45.7 million to be paid by
23 the settling defendants and the governments' current estimate of
24 total potential' damages" and "to evaluate the fairness of that
25 proportional relationship in light of the degree of liability
26 attributed to the settling defendants," and in light of the
27 numerous "other relevant factors" properly considered in the
28 evaluation of a settlement of this type.
·
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On March 22, 1995, the District Court ruled on pre-trial
motions previously made by the Montrose-affiliated Defendants and
defendant Westinghouse Electric Corporation ("Westinghouse"),
holding that the collective liability of the Montrose-affiliated
Defendants under the First Claim for Relief is limited to the total
of all response costs plus a maximum of $50,000,000 for natural
resource damages, and that plaintiffs have the burden of proving
that any pre-1980 damages for which plaintiffs seek recovery are
indivisible from post-19$0 damages. The District Court further
ruled that the First Claim for Relief is barred by the applicable
statute of limitations and ordered the dismissal of that First
Claim as against the Montrose-affiliated Defendants and
Westinghouse. The District Court subsequently certified its
rulings on the $50,000,000 limitation on damages and on the statute
of limitations for interlocutory appeal under 28 U.S.C. § 1292(b).
The Court of Appeals thereafter accepted plaintiffs' petitions for
appeal of those rulings, and those appeals are presently pending
and unresolved.
Notwithstanding the March 21st decision of the Court of
Appeals and the March 22nd rulings of the District Court, the
Parties hereto remain desirous of resolving all of the contingent
liability of the Settling Local Governmental Entities to
plaintiffs, DTSC, and the Regional Board with respect to the
natural resource damages relating to the Montrose NRD Area and
response costs relating to the Montrose NPL Site.
In pursuing such resolution of liability, plaintiffs, DTSC,
the Regional Board, and the Settling Local Governmental Entities
seek to revise and to amend the 1993 Decree to take account of
10.
I developments occurring since the District Court's initial approval
2 of the 1993 Decree. Under the direct supervision of the Special
3 [aster, the Parties have reached agreement on the Amended Decree
4 that includes covenants not to sue by the Trustees for natural
5 resource damages for the Montrose NRD Area, and by EPA, DTSC, and
6 the Regional Board for response costs for the Montrose NPL Site,
7 including the offshore areas. In addition, the Settling Local
$ Governmental Entities are provided contribution protection. The
9 basis for this amended agreement is set forth below.
10 The Parties have considered again each of the factors,
11 enumerated above, that were considered by them in connection with
12 the settlement reflected by the 1993 Decree. Additionally, the
13 Parties and the Special Master have considered each of the relevant
14 later developments, including the guidance provided by the Ninth
15 Circuit Court of Appeals in United States v. Montrose Chemical
16 CORD., 50 F.3d 741 (9th Cir. 1995), the Trustees' estimates of
17 resource restoration costs and the value of ~interim lost use of
18 resources as reported in the Fall of 1994, EPA's announcement on
19 July 10, 1996, regarding its projected response activities at the
20 Montrose NPL Site and related adjustments to the Trustees'
·
21 estimated resource restoration costs and interim lost use claim,
22 plaintiffs' estimate of the potential costs of EPA response action,
23 and an appropriate evaluation in order to estimate costs and
24 damages for settlement purposes for all parties.
25 As a result, the Parties have determined an appropriate
~6 settlement amount, which is set forth in this Amended Decree, based
27 on, inte~ alia, current estimates of total potential costs and
28 damages. In determining the settlement amount, the Parties have
I1.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
considered the proportional relationship between the amount to be
paid by the Settling Local Governmental Entities and a current
estimate of total potential costs and damages based on a scenario
that reasonably may be used to estimate costs and damages for
settlement purposes. In assessing the proportional relationship,
EPA and the Trustees have considered the relative roles of both the
Settling Local Governmental Entities and the generator defendants
in creating the conditions that gave rise to EPA's claim for
response costs and the Trustees' claim for assessment costs and
damages.
Plaintiffs' determination of the appropriateness of the
settlement amount to be paid by the Settling Local Governmental
Entities necessarily considers the fact that the Settling Local
Governmental Entities are situated in a manner that is
fundamentally different from the generator defendants vis-a-vis the
plaintiffs' claims for costs and damages.
First, the generator defendants are the sources of the problem
that is the subject of EPA;s response activities and the Trustees'
restoration program. Plaintiffs' allegations specifically concern
the effects of DDT and PCBs. The Montrose-affiliated Defendants
(i.e., the DDT defendants) are primarily responsible for the DDT
contamination on the Palos Verdes shelf. The PCB defendants were
major sources of PCBs. In contrast, the roles of the Settling
Local Governmental Entities were substantially different. In
general, they were passive conduits of wastewater and stormwater.
Thus, any flows of DDT and PCBs that passed through collection
system(s) and ocean outfall(s) owned and/or operated by the various
Settling Local Governmental Entities to the Palos Verdes shelf are
12.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
far less significant to plaintiffs' assessment of relative
contribution to plaintiffs' claims for costs and damages.
Moreover, the volumes of wastewater and stormwater that flowed
through collection system(s) and ocean outfall(s) owned and/or
operated by the various Settling Local Governmental Entities is not
highly significant to plaintiffs' assessment of relative
contribution because it is the DDT and PCBs in the wastewater
and/Or stormwater that gave rise to this action and not the effects
of wastewater or stormwater flow in general.
Second, the amounts of DDT and PCBs discharged by the
generator defendants were substantial. In United States v.
Montrose Chemical CorD., 793 F. Supp. 237, 240-241 (C.D. Cal.
1992), this Court considered the respective contributions of
contaminants to the Palos Verdes shelf of each group of generator
defendants and determined that the plaintiffs' settlement
methodology was reasonable. The plaintiffs believe that in view of
currently available information, the estimates of the contributions
of the generator defendants recited in the Court's opinion continue
to be reasonable. The Montrose-affiliated Defendants are
responsible for the discharge of approximately 5.5 million pounds
of DDT, Westinghouse is responsible for the discharge of
approximately 38,000 pounds of PCBs, and settling defendants
Potlatch Corporation and Simpson Paper Company are responsible for
the discharge of approximately 4,500 pounds of PCBs.
Third, the Settling Local. Governmental Entities were largely
if not completely unaware of the discharge of DDT in the wastewater
from the Montrose DDT plant the runoff of DDT contaminated i
stormwater from the Montrose DDT Plant Property to the Los Angeles i
13.
1 Harbor, or the massive ocean dumping by Montrose of its DDT waste
2 until well after the vast amount of DDT had been discharged by the
3 DDT defendants.
4 Fourth, because the Settling Local Governmental Entities were
5 and are not-for-profit public entities obligated to provide
6 essential public services through the operation of.sewer systems
7 end stormwater channels, they are unlike the generator defendants
8 that discharged the DDT and PCBs at issue as part of for-profit
9 enterprises.
10 Fifth, the Settling Local Governmental Entities, in particular
11 LACSD, undertook significant actions to halt the discharge of DDT
12 and PCBs from the Montrose DDT Plant Property, the Westinghouse
13 plant and the Potlatch/Simpson plant. Those actions began with
14 LACSD's early efforts to monitor discharges from its outfalls,
15 efforts to identify the source of DDT that was identified in the
16 effluent, efforts to curtail the Montrose DDT discharge as early as
17 1969, and subsequent efforts to identify and curtail industrial
18 sources of PCBs. LACSD's efforts resulted in large reductions in
19 the amounts of those contaminants in the discharge from the
20 outfalls involved herein, including a massive decline in DDT
21 discharge from the White's Point Outfall after the Montrose DDT
22 Plant Property ceased discharging its process waste to the LACSD
23 sewer. In addition, LACSD has engaged in substantial monitoring on
24 the Palos Verdes shelf and the results of the LACSD monitoring were
25 made available to, and used by, the Trustees to better understand
26 the conditions currently existing on the Palos Verdes shelf.
27 Sixth, the stormwater channels 'and outfalls owned and/or
28 operated by Settling Local Governmental Entities, other than
14.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LACSD's White's Point Outfall, and other activities by Settling
Local Governmental Entities are believed to have contributed far
lower quantities of DDT and PCBs to the area which is the subject
of this action (to the extent that they contributed any DDT or
PCBs). In addition, those contributions, if any, are understood to
be in areas with a less direct relationship to the areas which are
the subject of the plaintiffs' claims.
Seventh, the Montrose-affiliated Defendants, as the owners and
operators of the plant at which the DDT was manufactured and from
which the DDT was released into the environment, not the Settling
Local Governmental Entities, bear the overwhelming responsibility
for the DDT contamination of the groundwater and soil underlying
the Montrose DDT Plant Property, the stormwater channels (including
the Kenwood Drain, the Torrance Lateral, and the Dominguez Channel)
and the Consolidated Slip, the LACSD sewers, and nearby
neighborhoods. Of the Settling Local Governmental Entities only
LACSD, the County of Los Angeles, and the City of Los Angeles, as
the owners of the sewers, the stormwater channels, and public
rights-of-Way that are contaminated with Montrose DDT waste, can
conceivably have any ,,factual responsibility" for the cleanup of
DDT and other hazardous substances released or dumped by the
Montrose-affiliated Defendants, and their responsibility is minimal
when compared with that of the Montrose-affiliated Defendants who
are responsible for manufacturing and formulating the DDT and
releasing it into the environment including the sewers, the
stormwater channels and the public rights-of-way.
Eighth, the Settling Local Governmental Entities continue to
cooperate with plaintiffs in resolving their potential liability
·
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
relatively early in the suit, and without contested litigation. By
agreeing to payment of the settlement amount, the Settling Local
Governmental Entities have assumed both the risk that such amount
might later prove to be an overestimate and the possibility that
such total amount might later prove to have been underestimated.
Additionally, plaintiffs have considered of particular significance
the continued high degree of cooperation of the Settling Local
Governmental Entities with plaintiffs as evidenced by their
continued willingness to resolve this lengthy action without
further litigation or trial, despite rulings of the District Court
that, if affirmed by the Court of Appeals, would have serious
adverse effect upon plaintiffs' positions herein.
The Parties further recognize that the District Court's
rulings of March 22, 1995, as they presently stand, both bar and
preclude any recovery of damages under the First claim for Relief
and limit the potential amount of such recovery if recovery is not
totally barred and precluded. Further, the fact that plaintiffs
now have the burden of proving that any pre-1980 damages for which
plaintiffs seek recovery are indivisible from post-1980 damages
also may limit plaintiffs' ability to recover all damages alleged
under the First Claim for Relief.
In estimating possible damages and costs for settlement
purposes, the Parties recognize that control of the contaminated
offshore sediments through response activities by EPA on the Palos
Verdes shelf more than likely will be based upon an evaluation of
similar approaches, involving similar types of costs, and achieving
similar results, as would have been obtained through physical
restoration by the Trustees of those same offshore areas of the
16.
1 Montrose NRD Area had that action been taken by the Trustees,
2 except that EPA has greater statutory and. administrative
3 flexibility in the manner in which it undertakes response
4 activities. The plaintiffs believe that EPA's flexibility will
5 result in the incurrence of lower expenses for physical activities
6 that are similar to those that the Trustees evaluated. Thus, the
7 Trustees' 1994 estimate for physical restoration activity is not
8 ~ieved to reflect the actual costs to EPA of a response action on
9 the Palos Verdes shelf and the Trustees' estimates may in fact
10 exceed the actual costs of the EPA response action.
11 Based on the above-recited considerations, and without
12 limiting the Governments' position at trial, the Governments'
13 current estimate of total damages and costs for settlement purposes
14 is between $225 million and $250 million~ For the purposes of
15 settlement, the payment of $45.7 million by the Settling Local
16 Governmental Entities under this Amended Decree is reasonable. It
17 reflects a proportion of about one-fifth to be paid by the Settling
18 Local Governmental Entities, which is more than reasonable given
19 their limited role, as set forth above, and their cooperation in
20 settlement, i
21 The United States and the State also have agreed on the ~
22 application of the settlement funds between EPA/DTSC response costs !
23 relating to the Montrose NPL Site (as defined herein to include the :
24 effluent-affected sediments on the Palos Verdes shelf) and the
25 Trustees' damage assessment costs and natural resource damages
26 relating to the Montrose NRD Area. The United States and the State
27 have agreed that the Settling Local Governmental Entities should
28 pay a total of $23,700,000 to the Trustees for natural resource
17.
1 damages and costs which amounts to approximately one-fifth of the
2 Trustees' total damages and costs as estimated for settlement
3 purposes. Similarly, the United States and the State have agreed
4 that the Settling Local Governmental Entities should pay a total of
5 $22,000,000 to EPA and DTSC for response costs which also amounts
6 to approximately one-fifth of EPA's and DTSC's total response costs
7 as estimated for settlement purposes.
$ In determining the settlement amount paid for EPA/DTSC
9 response costs and for the Trustees' ~damage assessment costs and
10 natural resource damages, the United States and the State have
11 considered the current estimates of potential costs and damages and
12 the proportional relationship between the amount to be paid in
13 settlement and potential costs and damages, and the court decisions
14 noted above. In addition, the United States and the State have
15 considered the total amount of available settlement funds, the
16 expenses incurred by the Trustees in connection with the
17 characterization of the effluent-affected DDT and PCB contaminated
18 sediment deposit on the Palos Verdes shelf and the assessment of
19 the contaminated sediments on the environment and the usefulness of
20 much of their work to EPA; EPA's current estimate of the expenses
21 associated with initiating response activity on the Palos Verdes
22 shelf; the Trustees' current estimates of the funds required to
23 initiate scoping studies with respect to the planning of biological
24 restoration programs designed to aid in the recovery of injured
25 trust resources; and the availability of funds from the settlement
~6 with Potlatch Corporation and Simpson Paper Company.
27 All claims against the Settling Local Governmental Entities,
28 i ing claims for costs, damages, contribution, and other
18.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claims, are addressed and covered by this Amended Decree. This
Amended Decree resolves the Settling Local Governmental Entities'
liability to the United States, on behalf of the Federal Trustees,
and the State, on behalf of the State Trustees, for natural
resource damages alleged in the Complaint with respect to the
Montrose NRD Area, and liability to the United States and the State
for response costs incurred and to be incurred in connection with
the Montrose NPL Site, as defined herein, and provides contribution
protection to the Settling Local Governmental Entities for all
matters addressed herein. Except where otherwise specifically
stated, this Amended Decree is intended to cover all past and
future response cost claims which the United States and the State
(through its authorized agencies) may have with respect to the
Montrose NPL Site against the Settling Local Governmental Entities.
This settlement is made in good faith after arms-length
negotiations conducted under the supervision of Special Master
Harry V. Peetris pursuant to Pretrial Order No. 1. Entry of this
Amended Decree is the most appropriate means to resolve the matters
covered herein and is fair, reasonable and in the public interest.
NOW, THEREFORE, IT IS HEREBY ORDERED', ADJUDGED, AND DECREED:
JURISDICTION AND VENUE
1. For purposes of entry and enforcement of this Amended
Decree only, the Parties to this Amended Decree agree that the
Court has personal jurisdiction over the Parties and has
jurisdiction over the subject matter of this action and the Parties
to this Amended Decree pursuant to 28 U.S.C. §§ 1331, 1345, and
1367, and Sections 106, 107, and l13(b) of CERCLA, 42 U.S.C.
§§ 9606, 9607, and 9613(b), and the principles of supplemental
19.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
jurisdiction. Solely for the purposes of this Amended Decree, the
Parties waive all objections and defenses that they may have to
jurisdiction of the Court or to venue in this District and to
service of process. Nothing herein shall constitute: an admission
or a finding that this Court has jurisdiction over the cross-claims
or third party complaints against the Settling Local Governmental
Entities or over any counterclaims against plaintiffs; an admission
or finding that any counterclaim, cross-claim or third party
complaint states a claim upon which relief may be granted; or a
waiver of any defenses to any such counterclaim, cross-claim or
third party complaint.
SETTLING LOCAL GOVERNMENTAL ENTITIES
2. The Settling Local Governmental Entities that are.Parties
to this Amended Decree are listed in Attachment A to this Amended
DeCree and for purposes of implementing Paragraphs 8 through 12
herein are further delineated in Attachment B to this Amended
Decree as the Category I entities (i.e., LACSD and the various
other county sanitation districts of Los Angeles County) and the
Category II entities (i.e..., the other Settling Local Governmental
Entities) ·
APPLICABILITY OF AMENDED DECREE
3. The pro.visions of this Amended Decree, including the
covenants not to sue and contribution protection, shall be binding
on, apply to, and inure to the benefit of the United States and the
State, and to the Settling Local Governmental Entities and their
agencies and departmentS, including those that may be sued
independently, both proprietary and non-proprietary, and including
their past, present and future officials, directors, employees,
20.
i1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
predecessors, successors and' assigns. No change in the ownership
or organizational form or status of any Settling Local Governmental
Entity shall affect its rights or obligations under this Amended
Decree.
EFFECT OF SETTLEMENT/ENTRY OF JUDG~T
4. This Amended Decree was negotiated and executed by the
Parties hereto in good faith at arms-length to avoid the
continuation of expensive and protracted litigation and is a fair
and equitable settlement of claims which were vigorously contested.
The execution of this Amended Decree is not, and shall not
constitute or be construed as, an admission of liability by any of
the Parties to this Amended Decree, nor is it an admission or
denial of any of the factual allegations set out in the Complaint,
counterclaims, cross-claims, or third party complaints, or an
admission of violation of any law, rule, regulation, or policy by
any of the Parties to this Amended Decree. Nothing in this Amended
Decree is intended to affect the authority or jurisdiction of EPA
to take action beyond the boundaries of the Montrose NPL Site.
5. Upon approval and entry of this Amended Decree by the
Court, this Amended Decree shall constitute a final judgment
between and among the United States and the State, and the Settling
Local Governmental Entities.
DEFINITIONS
6. This Amended Decree incorporates the definitions set
forth in Section 101 of CERCLA, 42 U.S.C. § 9601. In addition,
whenever the following terms are used in this Amended Decree, they
shall have the following meanings:
A. "Damage Assessment Costs" shall mean all costs associated
21.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24'
25
26
27
28
with the planning, design, implementation and oversight of the
Trustees' damage assessment process, which addresses the fact,
extent and quantification of the injury to, destruction of or loss
of natural resources and the services provided by these resources
resulting from releases of hazardous substances alleged in the
First claim for Relief in the Complaint, and with the planning of
restoration or replacement of such natural resources and the
services provided by those resources, or the planning of' the
acquisition of equivalent resources or services, and any other
costs necessary to carry out the Trustees' responsibilities with
respect to those natural resources, including all related
enforcement costs.
B. "Date of Execution of the 1993 Decree" shall mean
November 2, 1992, which is the date by which the 1993 Decree was
signed by all of the following: the authorized representatives of
each of the Settling Local Governmental Entities, of the State, and
of the EPA, and by the Assistant Attorney General of the
Environment and Natural Resources Division of the United States
Department of Justice.
C. "Date of Execution of this Amended Decree" shall mean the
date by which this Amended Decree has been signed by all of the
following: the authorized representatives of each of the Settling
Local Governmental Entities, of the State, and of the EPA, and by
the Assistant Attorney General of the Environment and Natural
Resources Division of the United States Department of Justice.
D. "Date of Initial Approval of this Amended Decree" shall
mean the date On which this Amended Decree has been initially
approved and signed by the United States District Court.
22.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
E. "Date of Final Approval of this Amended Decree" shall
mean the later of (1) the date on which the District Court has
approved and entered this Amended Decree as a judgment and all
applicable appeal periods have expired without an appeal being
filed, or (2) if an appeal is taken, the date on which the District
Court's judgment is affirmed and there is no further right to
appellate review.
F. "Joint Outfall System" shall mean that wastewater
collection, treatment and disposal facility of certain county
sanitation districts of Los Angeles County discharging effluent
through the White's Point Outfall and consisting of the Joint Water
Pollution Control Plant and the associated sewers, pumping plants,
inland water reclamation plants, treatment plants, treatment plant
outfall sewers and incidental sanitation works operated pursuant to
the 1995 Amended Joint Outfall Agreement' by LACSD and as defined
therein, including subsequent modifications to that system, as
contemplated by that agreement.
G. ,,Montrose-affiliated Defendants" shall mean,
collectively, the Montrose Chemical Corporation of California
("Montrose"), Chris-Craft Industries, Inc. ("chris-Craft"), Rhone-
Poulenc Basic Chemicals Co. (,,Rhone-Poulenc") now a division of
Rhone-Poulenc, Inc., Atkemix Thirty-Seven, Inc. ("Atkemix"),
Stauffer Management ~Company, and ZENECA Holdings Inc. formerly
known as ICI American Holdings, Inc. ("ICI").
H. "Montrose DDT Plant Property" shall mean 'for purposes of
this Amended Decree the thirteen (13) acre parcel at 20201 South
Normandie Ave., Los Angeles, California 90044, which is the site of
Montrose Chemical Corporation of California's former DDT production
23.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and formulation plant. The Montrose DDT Plant Property is part of
the Montrose NPL Site.
I. "Montrose NPL Site" for purposes of this Amended Decree,
includes, but is not limited to, the Montrose DDT Plant Property;
the real property located at 1401 West Del Amo Boulevard, Los
Angeles, California and owned by Jones Chemicals, Inc.; those
p~rtions of the Normandie Avenue Ditch adjacent to and south of
20201 South Normandie Avenue; the Kenwood Drain; the Torrance
Lateral; the Dominguez Channel (from Laguna Dominguez to the
Consolidated Slip); the portion of the Los Angeles Harbor known as
the Consolidated Slip from the mouth of the Dominguez Channel south
to, but not including or proceeding beyond, Pier 200B and Pier
200Y; the LACSD's J.O. "D" sewer from manholes D33 to D5
(approximately Francisco Street to 234th Street); the District 5
Interceptor sewer from manholes A475 to A442 (approximately
Francisco Street to Sepulveda Boulevard); the real property on
which the sewer rights-of-way are located for those portions of the
District 5 Interceptor and J.O. "D" sewer identified above; the
real property burdened by the adjacent railroad right-of-way for
those portions of the District 5 Interceptor and J.O. "D" sewer
identified above; the "Montrose CERCLA Removal Site" as defined in
EPA Region IX's Unilateral Administrative Order 95-18, Findings of
Fact at § 3, ~ 2, dated June 7, 1995; those areas of the Palos
Verdes shelf where effluent-affected DDT- and/or PCB-contaminated
sediments have come to be located, respectively; and any other
areas that EPA determines to be part of the EPA Montrose NPL Site
investigation; except that the Montrose NPL Site shall not include,
for purposes of this Amended Decree, the following locations:
24.
10
11
12
13
14
15
16
17
19
20
21
22
23
24
25
26
27
28
(1) any other location or area designated as a hazardous
substance release site pursuant to the California Hazardous
Substance Account Act, California Health and Safety Code
SS 25300 et se~., or which is the subject of a cleanup or
abatement order pursuant to the Porter-Cologne Water
Quality Control Act, California Water code SS 13000, et
seq., other than the area defined herein as the Montrose
NPL site, at which one or more hazardous substances
released from the Montrose DDT Plant Property or from the
plant(s) once operated there have come to be located;
(2) any other location or area listed on, proposed for or
added by EPA to, the National Priorities List (currently
found at 40 C.F.R. Part 300, Appendix B), other than the
area defined herein as the Montrose NPL site, at which
one or more hazardous substances released from the
Montrose DDT Plant Property or from the plant(s) once
operated there have come to be located; and
(3) the proposed Del A mo NPL Site as it may be defined by
EPA.
j. "Montrose NRD Area" shall mean for purposes of this
Amended Decree the area defined in the 1993 Decree as the Montrose
NRD Site and shall mean the area in and around the Channel Islands,
the Palos Verdes shelf, the San Pedro Channel including Santa
Catalina Island, and the Los Angeles and Long Beach Harbors as
described in the Complaint and as described in the draft Damage
Assessment Plan and draft Injury Determination Plan published by
the Trustees on February 6, 1990 and March 8, 1991, respectively.
K "Parties" shall mean each of the signatories to this
25.
1 Amended Decree.
2 L. "Natural Resource Damages" shall mean damages, including
3 loss of use, restoration costs, resource replacement costs or
4 equivalent resource values, and Damage Assessment Costs, and
5 response costs incurred by the Trustees, with respect to injury to,
6 destruction of, or loss of any and all natural resources in and
7 around the Montrose NPL Site and the Montrose NRD Area.
8 M. "Response Costs" shall mean for purposes of this Amended
9 Decree all costs of response as provided in Section 107(a)(1-4)(A)
10 of CERCLA, 42 U.S.C. S 9607(a)(1-4)(A), and as defined in Section
11 101(25) of CERCLA, 42 U.S.C. S 9601 (25) , that the United States or
12 the State have incurred or will incur with respect to the Montrose
13 NPL Site.
14 NATURAL RESOURCE CLAIM PAYMENTS
15 7. The Settling Local Governmental Entities shall pay to the
16 Trustees a total sum of $23,700,000 plus all interest accrued on
17 all funds deposited in the escrow account (the "Escrow")
18 established in accordance with Paragraph $.A of the 1993 Decree
19 (the "Settlement Amount,,) for the promises and undertakings of the
20 Trustees herein, with the Settling Local Governmental Entities
21 jointly and severally responsible for this obligation except as
22 hereinafter provided in Paragraphs 8 through 10. The Settlement
23 Amount shall be paid by the disbursement of funds paid into the
24 Escrow established in accordance with Paragraph 8.A of the 1993~
25 Decree, and maintained under Paragraph 8.A of this Amended Decree.
26 The provisions of this Amended Decree are not intended to and shall
27 not be interpreted to restrict the ultimate authority and
28 discretion of the Trustees to determine the use of settlement funds
26.
10
11
12
13
14
15
16
17
19
20
21
22
23
24
25
26
27
28
received for Natural Resource Damages in accordance with the
provisions of CERCLA and regulations issued thereunder. Nor are
the provisions of this Amended Decree intended to restrict the
right of the Settling Local Governmental Entities to allocate
responsibility for payment of the Settlement Amount by agreement
among themselves, provided that no such allocation is binding on
the Trustees.
8. A. The Category I entities shall continue to maintain the
Escrow established for the deposit of payments by the Category I
and Category II entities pursuant to the 1993 Decree, with said
Escrow bearing interest on commercially reasonable terms, in a
federally-chartered bank with an office in the State of California.
The Category I entities shall bear all costs of maintaining the
Escrow. The Category I entities shall notify the Trustees in
writing of any payments to or disbursements from the Escrow and
provide on request all documentation concerning the account,
including any agreements concerning the determination of interest
rates.
B. Subject only to the provisions of Paragraph 8.C, the
obligations of the Category I entities and of the Category II
entities establishing and maintaining the Escrow~as specified in
the 1993 Decree are contractual obligations to the Trustees under
the 1993 Decree,' and shall remain contractual obligations
enforceable under the terms and conditions of this Amended Decree
effective as of the Date of Execution of this Amended Decree, and
those obligations shall be enforceable as a matter of contract law
until such time as this Amended Decree is finally entered by the
Court. The consideration for these contractual undertakings by the
27.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
Category I entities and by the Category II entities includes the
immediate cessation of litigation activities by the Trustees
against those entities until a determination is made by the
District Court as to the entry of this Amended Decree.
C. All settlement funds paid into the Escrow shall remain in
the Escrow and may not be withdrawn except to make the payment
required by Paragraph 9.A of this Amended Decree or as specified in
Paragraph 14.F of this Amended Decree or unless a final judicial
determination is made that entry of this Amended Decree will not be
approved, and one of the Parties to this Amended Decree exercises
its option pursuant to Paragraph 29 to void the agreement. If that
latter event occurs, all sums paid into the Escrow and all accrued
interest shall be returned to the Category I entities and to the
appropriate Category II entities.
9. Within ten (10) working days after the Date of Final
Approval of this Amended Decree, the amount of $23,700,000,
together with all interest that has accrued on all settlement funds
in the Escrow since the Date of Execution of the 1993 Decree, and
except as otherwise provided in Paragraph 14.B, shall be paid to
the Trustees, payment to be made as follows:
A. The. Category I entities, for themselves and the Category
II entities, shall cause that amount to be paid from the Escrow
int'o the Registry of the Court, United States District Court for
the Central District of California, to be administered by the
Registry of the Court for the Trustees. This payment shall be made
in the manner specified in Paragraph 9.B below, and the amount so
paid and any interest thereon shall be administered and disbursed
as provided in Paragraphs 9.C and 9.D below.
28.
10
11
12
13
14
15
16
17
18
19
20
21
22¸
23
24
25
26
27
28
B. The payment described in Paragraph 9.A shall be made by
certified or bank check or warrant payable to the "Clerk, United
States District Court." The check or warrant shall include on its
face a statement that it is a payment in civil Action No. CV 90-
3122 AAH (JRx) (C.D. Cal.), and shall be sent to:
office of the Clerk
United States District Court for
the Central District of California'
312 North spring Street
Los Angeles, CA 90012.
The Category I entities, as Escrow holder, shall cause copies of
the check or warrant and of any transmittal letter accompanying the
check or warrant to be 'sent to the Trustees as provided in
Paragraph 37 of this Amended Decree.
C. The Registry of the Court shall administer all amounts
paid under Paragraph 9.A in an interest bearing joint account
(,,Registry Account") as provided in the Order Directing the Deposit
of Settlement A~ount into the Registry of the Court (,,Deposit
Order") issued by the District Court pursuant to Rule 67 of the
Federal Rules of civil Procedure, 28 U.S.C. § 2041, and Local Rule
22 of the Local Rules for the Central District of california. The
Deposit Order shall be attached to this Amended Decree and shall be
entered by the District Court at the time of entry of this A~ended
Decree.
D. All settlement funds and all interest accrued thereon in
the Registry Account shall be held in the name of the "Clerk,
United States District Court," for the benefit of the Trustees.
All disbursements from the Registry Account shall be made to the
Trustees by order of the Court in accordance with the provisions of
28 U.S.C. § 2042 and the Local Rules for the Central District of
29.
California.
2 10. A. For purposes of this Amended Decree, and without any
3 admission by LACSD, the Parties acknowledge that LACSD has a
4 special interest in the elimination or control of hazardous
5 substance contamination in the marine sediments underlying the
6 waters in and around the White's Point Outfall. For purposes of
·
7 this Amended Decree, and without any admission by the City of Los
8 Angeles and the City of Long Beach, the Parties likewise
9 acknowledge that the City of Los Angeles and the City of Long Beach
10 have a special interest in the elimination or control of hazardous
11 substance contamination in the Los Angeles-Long Beach Harbors. In
12 recognition of the special interest of LACSD, Los Angeles County
13 and the Cities of Los Angeles and Long Beach, respectively, the
14 Trustees agree that representatives of those entities may
15 participate on an advisory panel to the Trustees in the development
16 of the final restoration~ plan (if, and when, a final restoration
17 plan is developed), and in that role shall have reasonable
18 opportunity to provide input to the Trustees regarding that plan.
19 The Trustees shall nonetheless have the ultimate responsibility and
20 authority for the adoption, development and implementation of any
21 restoration plan. The Trustees' agreement to the creation of this
22 advisory panel shall not be interpreted to require consultation
23 with that panel regarding development of factual information or
24 legal positions with respect to the conduct of the damage
25 assessment or the litigation of this case or that the panel will
26 have the right to vote on any plan Proposals.
27 COVENANTS NOT TO SUE FOR NATURAL RESOURCE DAMAGES
28 11. Except as sPecifically provided in Paragraphs 12 and 13
30.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of this Amended Decree, the United States, and the State, and
agencies or instr%kmentalities thereOf, each hereby covenants not to
sue or to take any other civil or administrative action against any
of the Settling Local Governmental Entities for any and all civil
or administrative liability to the United States, the State, and
agencies or instr%zmentalities thereof, for Natural Resource Damages
under CERCLA, 42 U.S.C. SS 9601 et seq., or u~der any other
federal, state or common law. The foregoing covenants not to sue
represent a restatement of the covenants currently in effect
pursuant to Paragraph 14 of the 1993 Decree. The 1993 Decree
covenants shall remain in effect until the Date of Initial Approval
of this Amended Decree. Upon the Date of Initial Approval of this
Amended Decree, the 1993 Decree covenants shall no longer be in
effect and shall be superseded by the covenants set forth in this
Paragraph, which shall remain in effect so long as the Settling
Local Governmental Entities are fulfilling their obligations under
this Amended Decree, and subject to the Parties' rights to void
this Amended Decree pursuant to Paragraph 29. The United States,
and the State, and agencies or instrumentalities thereof, further
agree that since the Category II entities have paid the entire sum
required to be paid by them into the Escrow in accordance with
Paragraph @.B of the 1993 Decree all their obligations hereunder
with respect to claims for Natural Resource Damages, except as
provided in Paragraph 41 of this Amended Decree, have been
completely fulfilled, with the Category I entities continuing to be
obligated Under all provisions of this Amended Decree regarding
Natural Resource Damages.
31.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESERVATION OF RIGHTS FOR NATURAL R~SOURCE DAMAGES
12. A. Notwithstanding any other provision of this Amended
Decree, the Trustees reserve the right to institute proceedings
against any Settling Local Governmental Entity in this action or in
a new action seeking recovery of Natural Resource Damages, as
defined herein, based on ~(1) conditions unknown to the Trustees on
the Date of Execution of this Amended Decree that contribute to
injury to, destruction of, or loss of natural resources ("Unknown
Conditions"); or (2) information received by the Trustees after the
Date of Execution of this Amended Decree which indicates there is
injury to, destruction of, or loss of natural resources, of a type
unknown to the Trustees as of the Date of Execution of this Amended
Decree ("New Information").
B. An increase solely in the Trustees' assessment of the
magnitude of the injury, destruction or loss to natural resources,
or in the estimated or actual Natural Resource Damages shall not be
considered to be Unknown Conditions or New Information within the
meaning of Paragraph 12.A (1) or (2), nor shall a determination by
the Trustees that a previously identified natural resource injury
was caused by that party's release of a hazardous substance,
'including hazardous substances other than PCBs or DDT, be
considered New Information or Unknown Conditions.
C. The Settling Local Governmental Entities reserve their
right to contest any proceeding allowed by Paragraphs 12.A and 13
of this Amended Decree, and do not by consenting to this Amended
Decree waive any defenses, except to the extent specified in i
Paragraph 20.C of this Amended Decree. In the event that the i
Trustees institute proceedings under Paragraph 12.A of this Amended I
32.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
Decree, the Settling Local Governmental Entities reserve the right
to assert potential cross-claims, counterclaims or third party
claims against the United States .or the State, or any employee,
officer, agency or instrumentality thereof, relating solely to such
claims asserted by the Trustees pursuant to Paragraph 12.A.
Nothing in this Amended Decree shall be deemed to constitute
preauthorization of a claim within the meaning of Section 111 of
CERCLA, 42 U.S.C. S 9611.
D. In addition to defenses that may be asserted by the
Settling Local Governmental Entities pursuant to Paragraph 12.C
above, and a defense that a future release of hazardous substances
now present in the sediments of the Palos Verdes shelf was the
result of conditions or information known to the Trustees on the
Date of Execution of this Amended Decree, the Settling Local
Governmental Entities will not be liable for Natural Resource
Damages arising from a future release of hazardous substances now
present in the sediments of the Palos Verdes shelf, to the extent
that it is established that the release, the injury to natural
resources, and the Natural Resource Damages, resulted from LACSD's
institution of full secondary treatment of wastewater flows through
the White's Point Outfall.
13. Notwithstanding any other provision of this Amended
Decree, the covenants not to sue in Paragraph 11 shall apply only
to matters addressed in Paragraph 11 and specifically shall not
apply to the following claims: ~
A. claims based on a failure by the Settling Local~
Governmental Entities to satisfy the requirements of this Amendedi
Decree;
1 B. claims for criminal liability;
2 C. claims for violations of any other federal, state or
3 local law or permit, including but not limited to violations of the
4 Clean Water Act, 33 U.S.C. SS 1311, et seq., and any National
5 Pollutant Discharge Elimination System ("NPDES") permit issued
6 thereunder, and the Porter-Cologne Water Quality Control Act,
7 California Water Code SS 13000, ~% seq.; and
8 D. claims arising from the past, present, or future
9 disposal, release or threat of release of hazardous substances that
10 do not involve the Montrose NPL Site and/or the Montrose NRD Area.
11 PAYMENTS WITH RESPECT TO RESPONSE ACTIVITIES
12 14. A. The Settling Local Governmental Entities' shall pay
13 to the United States and the State a total sum of $22,000,000 (the
14 "Montrose NPL Site Response Cost Settlement Amount"). The Montrose
15 NPL Site Response Cost Settlement Amount shall be paid through
16 monetary payments in accordance with the terms of Paragraphs 14.B
17 through 14.G below.
18 B. The Settling Local Governmental Entities, through the
19 City of Los Angeles as their agent, shall continue to maintain the
20 escrow account ("Response Costs Escrow") established by those
21 Parties pursuant to the 1993 Decree, including all settlement funds
22 that have been deposited therein, to wit, $3,500,000, and any
23 interest that has accrued thereon since the date of deposit with
24 said Response Costs Escrow continuing to bear interest on
'25 commercially reasonable terms, in a federally-chartered bank with
26 an office in the State of California. The Settling Local
27 Governmental Entities shall pay into the Response Costs Escrow
28 those additional amounts set forth below on the dates indicated
34.
i below:
2 January 15, 1997: $5,900,000.00
3 addition, within ten (10) working days after the Date of Initial
4 Approval of this Amended Decree, the amount of $12,600,000,
5 together with all interest that has accrued on that amount since
6 the Date of Execution of this Amended Decree in the Escrow
7 maintained pursuant to Paragraph 8.A of this Amended Decree, shall
8 be paid into the Response Costs Escrow.
9 c. The Settling Local Governmental Entities shall bear all
10 costs of establishing the Response Costs Escrow. The City of Los
11 Angeles, acting as agent for the Settling Local Governmental
12 Entities, shall notify EPA and the State immediately after the
13 above payments have been made, and will provide on request all
14 documentation concerning the account, including any agreement
15 concerning the determination of interest rates.
16 D. Subject only to the provisions of Paragraph 14.E, the
17 obligations of the Settling Local Governmental Entities to continue
18 to maintain the Response Costs Escrow and to pay the amounts
19 specified above into the Response Costs Escrow within the specified
20 times are contractual obligations to the United States and the
21 State, effective as of the Date of Execution of this Amended
22 Decree, and those obligations shall be enforceable as a matter of
23 contract law regardless of when or whether this Amended Decree is
24 finally entered by the Court. The consideration for these
25 contractual undertakings by the Settling Local Governmental'
26 Entities includes the immediate cessation of litigation activities
27 by the United States and the State against the Settling Local
28 Governmental Entities until a determination is made by the District
35.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Court as to the entry of this Amended Decree.
E. Ail settlement funds paid into the Response Costs Escrow
shall remain in the Response Costs Escrow and may not be withdrawn
except to make the payments required by Paragraphs 14.F and 14.G of
this Amended Decree or unless a final judicial determination is
made that entry of this Amended Decree shall not be approved, and
one of the Parties to this Amended Decree exercises its option
pursuant to Paragraph 29 to void the agreement. If that latter
event occurs, all sums paid into the Response Costs Escrow and all
accrued interest shall be returned to the Settling Local
Governmental Entities.
F. Within ten (10) working days after the Date of Final
Approval of this Amended Decree, the Settling Local Governmental
Entities shall pay to the State from the Response Costs Escrow the
sum of $140,000, together with a pro rata share of all interest
that has accrued on that amount since the Date of Execution of this
Amended Decree. The payment to the State shall be made by
certified check made payable to "Cashier, California Department of
Toxic Substances Control," and shall bear on its face this case
name and number. Payment shall be mailed to:
Department of Toxic Substances Control
Accounting/Cashier
400 P Street, 4th Floor
P.O. Box 806
Sacramento, CA 95812-0806
Notice of said payment shall be given to the State as provided in
Paragraph 37 of this Amended Decree.
G. The payment to the United States shall be in the sum of
$21,860,000, together with a pro rata share of all interest that
has accrued on this amount as specified in this Paragraph 14.G.
36.
1 Within ten (10) working days after the Date of Final ApProval of
2 this Amended Decree, the Settling Lo~al Governmental Entities shall
3 make payments to the United States from the Response Costs Escrow
4 as follows: 1) $2,500,000, together with all interest that has
5 accrued on the $3,500,000 deposited in the Response Costs Escrow
6 established pursuant to Paragraph 17 of the 1993 Decree, to the
7 "United States Environmental Protection Agency, Montrose Chemical
8 National Priorities List Superfund Site Special Account", 2)
9 $1,000,000 for past response costs incurred by EPA with respect to
10 the Montrose NPL Site for deposit by EPA in the Hazardous Substance
11 Superfund, and 3) $3,500,000, together with a pro rata share of
12 interest that has accrued since ten (10) working days after the
13 Date of Initial Approval of this Amended Decree, to the "United
14 States Environmental Protection Agency, Montrose Chemical National
15 Priorities List Superfund Site-Palos Verdes Shelf Operable Unit
16 Special Account".
17 On January 30, 1997, or ten (10) days after the Date of Final
18 Approval of this Amended Decree, whichever is later, the Settling
19 Local Governmental Entities shall pay from the Response Costs
20 Escrow the sum of $14,860,000, together with all remaining sums
21 that have accrued in the Response Costs Escrow established pursuant
22 to Paragraph 14 of this Amended Decree, to the "United States
23 Environmental Protection Agency, Montrose Chemical National
24 Priorities List Superfund Site-Palos Verdes. Shelf Operable Unit
25 Special Account".
26 Payments to the United States shall be made by Electronic
27 Funds Transfer ("EFT" or "wire transfer") in accordance with
28 instructions provided by the United States to the Settling Local
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
Governmental Entities subsequent to the lodging of this Amended
Decree. Any EFT received after 11:00 A.M. (Eastern Time) will be
credited on the next business day. The Settling Local Governmental
Entities shall send notice of the EFT to plaintiffs as provided in
Paragraph 37 of this Amended Decree. All payments to the United
States under this Paragraph 14.G shall reference the Montrose
Chemical Corporation of California Superfund Site, Site # 9T26, DOJ
Case $ 90-11-3-511, and U.S.A.O. file number 9003085.
H. If the United States or the State must bring an action to
collect any payment required under this Paragraph'14, the Settling
Local Governmental Entities shall reimburse the United States and
the State for all costs of such action, including but not limited
to attorney's fees.
I. EPA commits to expend the settlement funds paid by the
Settling Local Governmental Entities to the United States
Environmental Protection Agency, Montrose Chemical National
Priorities List Superfund Site Special Account on EPA response
activities with respect to the Montrose NPL Site, except those
areas of the Palos Verdes shelf where effluent-affected DDT- and/or
PCB-contaminated sediments have come to be located. All such funds
not used in accordance with the provisions of this Paragraph 14.I
may be applied to the Hazardous Substance Superfund, but only after
the completion of the response activities at the Montrose NPL Site.
J. EPA commits to expend the settlement funds paid by' the
Settling Local Governmental Entities to the United States
Environmental Protection Agency, Montrose Chemical National
Priorities List Superfund Site - Palos Verdes Shelf Operable Unit
Special Account for response activities with respect to the
38.
1 Montrose NPL Site Palos Verdes Shelf Operable Unit. Ail such funds
.
2 not used in accordance with the provisions of this Paragraph 14 J
3 may be deposited in the Hazardous Substance Superfund but only
4 after completion of the EPA response activities.
5 IN-KIND SERVICES
6 15. A. LACSD agrees to provide in-kind services to EPA in
7 lieu of the cash payments required by Paragraph 14 of this Amended
8 Decree in settlement of the response cost claims of the United
9 States and the State, subject to the conditions set forth in
10 Paragraphs 15.B and 15.C below. Such services shall be valued by
11 mutual agreement of EPA and LACSD. Costs of in-kind services
12 provided by LACSD through contractors shall be approved by EPA,
13 with the concurrence of DTSC , prior to implementation of the
14 contract.
15 B. In the event that LACSD provides in-kind services
16 pursuant to this Amended Decree, such services shall be Provided by
17 LACSD as a contractor retained by the EPA and shall total in value
18 not more than $2,000,000, the services to be valued at the time
19 rendered. EPA shall not request that LACSD provide more than
20 $1,000,000, in services in any twelve month period after the Date
21 of Initial Approval of this Amended Decree. However, EPA and
22 LACSD, by written agreement, may modify the annual limits
23 established above, or extend the period for provision of services,
24 including provision for long term monitoring projects.
25 C. In requesting the provision of in-kind services pursuant
26 to Paragraph 15.A of this Amended Decree, EPA shall make work
27 assignments to LACSD in writing and shall set forth the scope and
28 specifications of the work required and the date by which LACSD
39.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and/or the approved contractors will deliver the work product of
the particular assignment. In making assignments, EPA will consult
with LACSD, and LACSD can. propose modifications to the work
assignments. EPA may specify that all or a portion of a particular
assignment is to be performed by a contractor, by LACSD or by
identified LACSD staff members; provided that, to the extent
practicable, the EPA shall accommodate LACSD's reasonable requests
regarding the availability of its personnel. All services provided
under this Amended Decree by LACSD shall be subject to full
oversight and control by EPA. EPA shall have full access to all
work in progress required under this agreement, whether by LACSD
personnel or by contractors. LACSD shall submit quarterly
statements to EPA itemizing the cost of services provided during
the preceding quarter, and cumulatively from the Date of Initial
Approval of this Amended Decree.
16. For purposes of this Amended Decree, and without any
admission by LACSD, the Parties acknowledge that LACSD has a
special interest in the elimination or control of hazardous
substance contamination in the marine sediments underlying the
waters in and around the Palos Verdes shelf. For purposes of this
Amended Decree, and without any admission by the City of Los
Angeles and the City of Long Beach, the Parties acknowledge that
the City of Los Angeles and the City of Long Beach have a special
interest in the elimination or control of hazardous substance
contamination in the Los Angeles-Long Beach area. Plaintiffs
maintain that the hazardous substance contamination in the
sediments of the Palos Verdes shelf and the Los Angeles-Long Beach
Harbors has resulted in substantial injury to resources held in
40.
10
11
12
13
14
16
17
18
19
20
21
22
23
24
25
27
28
trust by the Trustees and that the elimination or control of the
contamination in these sediments would facilitate the recovery of
the injured resources. Plaintiffs further maintain that the
release or threatened release of these same contaminated sediments
may present a significant threat to human health or the
environment, and that the reduction or elimination of these threats
from the contaminated sediments would provide substantial benefit
to the public health, welfare and the environment. EPA is
undertaking the investigations required under CERCLA and the NCP to
select response activities for the contaminated effluent-affected
deposit on the Palos Verdes shelf. EPA, in consultation with DTSC,
may determine that one or more activities are necessary or may
determine that no action is appropriate. The Settling Local
Governmental Entities acknowledge that one of the response
activities EPA might undertake with respect to significantly
reducing or eliminating the threat presented by the contaminated
sediments is to isolate all or a portion of the contaminated
sediments on the Palos Verdes shelf thereby significantly reducing
or eliminating human exposure to and ecological impact from such
contaminants. To the extent that EPA might decide to choose a
response activity that isolates the contaminated sediments, the
Settling Local Governmental Entities further acknowledge that a
possible ready source of clean sediment suitable for isolating the
contaminated sediment on the Palos Verdes shelf may be found in the
Los Angeles-Long Beach Harbors. To the extent it is consistent
with the obligations and responsibilities of EPA under the
provisions of CERCLA and the applicable regulations governing use
of recoveries, EPA commits to the expenditure of at least
41.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
$13,900,000 on the Palos Verdes shelf and at least $5,000,000 with
respect to activities affecting the Los Angeles-Long Beach Harbors.
EPA further com~its to expend these settlement funds on
investigation, design and implementation activities for response
activities that involve the elimination or control of contaminated
sediments with respect to the Palos. Verdes shelf. If EPA, in
consultation with DTSC, in applying the provisions of CERCLA and
applicable regulations and examining the scientific and engineering
objectives of remediation of the Palos Verdes shelf contaminated
sediments, and taking into account the available settlement funds,
determines to expend settlement funds in a manner different than
described in this Paragraph, EPA will provide an explanation of its
decision to representatives of LACSD, the City of Los Angeles, and
the City of Long Beach. However, the provisions of this Paragraph
with respect to the use of settlement funds are not intended to and
do not make EPA's decisions with respect to any response activity
reviewable in any judicial or administrative proceeding.
COVENANT NOT TO SUE FOR MONTROSE NPL SITE RESPONSE
ACTIVITIES AND
COSTS AND RESERVATION OF RIGHTS
17. Except as specifically provided in Paragraphs 18 and 19
of this Amended Decree, the United States, the State, and agencies
and instrumentalities thereof, each hereby covenants not to sue or
take administrative action against any of the Settling Local
Governmental Entities, to compel response activities or to recover
Response Costs incurred or to be incurred in the future in
connection with the Montrose NPL Site including, but not limited
to, costs for studies and evaluations of the area covered by
42.
1 response activities under CERCLA Sections 106 and 107, 42 U.S.C.
2 S~ 9606 and 9607, or pursuant to the California Hazardous Substance
3 ccount Act, California Health and Safety Code ~ 25300 e__t seq., or
4 any other state statute or state common law. In addition, the
5 United States, the State, and agencies and instrumentalities
6 thereof, each hereby covenants not to sue or take ~dministrative
7 action against any of the Settling Local Governmental Entities, to
8 compel response activities or to recover Response Costs incurred or
9 to be incurred in the future in connection with the Montrose NPL
10 site under the Resource Conservation and Recovery Act ("RCRA")
11 Sections 3008(h), 3013, or 7003, 42 U.S.C. S§ 6928(h), 6934 or
12 6973, or California Health and Safety Code § 25187. The State, and
13 agencies and instrumentalities thereof, further covenants not to
14 sue or take administrative action against any of the Settling Local
15 Governmental Entities, to compel response activities or to recover
16 Response Costs incurred or to be incurred in the future in
17 connection with the Montrose NPL Site under RCRA Section 7002, 42
18 U.S.C. S 6972. The foregoing covenants not to sue include a
19 restatement of the covenants currently in effect pursuant to
20 Paragraph 18 of the 1993 Decree. The 1993 Decree covenants shall
21 remain in effect until the Date of Initial Approval of this Amended
22 Decree. Upon the Date of Initial Approval of this Amended Decree,
23 the 1993 Decree covenants shall no longer be in effect and shall be
24 superseded by the covenants set forth in this Paragraph which shall
25 remain in effect so long as the Settling Local Governmental
26 Entities are fulfilling their obligations under this Amended
27 Decree, subject to the Parties' rights to void this Amended Decree
28 pursuant to Paragraph 29 of this Amended Decree. The United
·
43.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
25
26
27
28
States, and the State, and agencies or instrumentalities thereof,
further agree that since the Category II entities have paid the
entire sum required to be paid by them into the Response Costs
Escrow as specified in Paragraph 14 of the 1993 Decree, including
the Response Costs the Category II entities are required to pay in
accordance with the provisions of this Amended Decree, the
obligations of the Category II entities hereunder with respect to
the Montrose NPL Site, except as provided in Paragraphs 14, 21 and
41 of this Amended Decree, have been completely fulfilled, with the
Category I entities continuing to be obligated under all provisions
of this Amended Decree.
18. The covenants set forth in Paragraph 17 pertain only to
matters expressly specified therein, and extend only to the
Settling Local Governmental Entities. Any claim or defense which
the United States or the State has against any other person or
entity not a party to this Amended Decree is expressly reserved.
The United States and the State reserve, and this Amended Decree is
without prejudice to, all other rights and claims against the
Settling Local Governmental Entities, individually or collectively,
with respect to all other matters, including but not limited to,
the following:
A. any and all claims against a Settling Local Governmental
Entity based upon or resulting from a failure to meet a requirement
of this Amended Decree;
B. claims for criminal liability;
C. claims for violations of any other federal law or permit,
including, but not limited to, violations of the Clean Water Act,
33 U.S.C. §§ 1311, et seq., and any NPDES permit issued thereunder,
44.
10
11
12
13
14
15
17
18
20
21
22
23
24
25
26
27
28
or any other state or local law or permit, including, but not
limited to, the Porter-Cologne Water Quality Control Act,
california Water Code SS 13000,.et seq., but excluding those state
or local laws or permits that the state or local government has
used or could use to compel a response action or to recover
Response Costs at the Montrose NPL Site; and
D. the issuance or enforcement of civil or administrative
orders issued pursuant to Sections 104(e) and 106 of CERCLA, 42
U.S.C. SS 9604(e) and 9606, for information, access or cooperation
with efforts by the United States with regard to response
activities at the Montrose NPL Site, including but not limited to,
the sanitary sewers of the Category I entities downstream of the
former Montrose DDT Plant Property connections, including review of
the design of the project and rerouting of flows to the extent
practicable to dewater the sewer(s) for the response operation in
the sewers; or
E. claims arising from the presence of a hazardous substance
at any location outside of the Montrose NPL Site, including, but
not limited to, the proposed Del Amo NPL Site as it may be defined
by EPA.
19. A. In addition to the reservations set out in Paragraph
18, the United States and the State reserve, and this Amended
Decree is without prejudice to, the right to institute proceedings
in this action or in a new action seeking to compel the Settling
Local Governmental Entities to take a response action or reimburse
the United States or the State for additional Response Costs if
subsequent to the Date of Execution of this Amended Decree, the
United States or the State:
45.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
25
27
28
1. receives, in whole or in part, information unknown
to EPA or DTSC as of the Date of Execution of this Amended Decree,
indicating that one or more of the Settling Local Governmental
Entities released after the Date of Execution of this Amended
Decree one or more hazardous substances that come to be located at
the Montrose NPL Site and that EPA or DTSC determines may be a
threat to hu~man health or the environment, provided that the
foregoing shall not be deemed to apply to a re-exposure or
resuspension on the Palos Verdes shelf of the DDT or PCB-
contaminated sediments currently located there;
2. discovers a condition at the Montrose NPL Site that
EPA or DTSC determines may be a threat to human health or welfare
or the environment, and that was unknown to EPA or DTSC prior to
the Date of Execution of this Amended Decree.
B. The Settling Local Governmental Entities reserve their
right to contest any proceeding allowed by Paragraph 18 and
Paragraphs 19.A.1 and 19.A.2 of this Amended Decree and do not by
consenting to this Amended Decree waive any defenses, except as
specified in Paragraph 20.C of this Amended Decree. In the event
that the United States or the State institutes proceedings under
Paragraphs 19.A.1 or 19.A.2 of this Amended Decree, the Settling
Local Governmental Entities reserve the right to assert potential
cross-claims, counterclaims or third party claims against the
United States, the State, or any employee, officer, agency or
instrumentality thereof, relating solely to such claims asserted by
the United States or the State, and the agencies or
instrumentalities thereof, pursuant to Paragraphs 19.A and 19.B.
Nothing in this Amended Decree shall be deemed to constitute
46.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
preauthorization of a claim within the meaning of Section 111 of
CERCLA, 42 U.S.C. S 9611, or 40 C.¥.R. S 300.700(d).
COVENANTS BY SETTLING LOCAL GOVERNMENTAL ENTITIES
20. A. Subject to Paragraphs 12.C and 19.B, each of the
Settling Local Governmental Entities hereby covenants not to sue or
to assert any administrative claim or cause of action of any kind
against the United States, or any employee, officer, agency or
instrumentality thereof, and/or the State, or any employee,
officer, agency or instrumentality thereof (but not including
counties, cities, local governmental entities or sanitation
districts), for any matters relating to Natural Resource Damages,
as defined herein, including, but not limited to the counterclaims
asserted in LACSD's Answer to the Complaint in this action, or
claims arising pursuant to any other federal, state or common law,
including, but not limited to, any direct or indirect claim
pursuant to Section 112 of CERCLA, 42 U.S.C. § 9612, against the
Hazardous Substance Superfund, any claim pursuant to Section 113(f)
of CERCLA, 42 U.S.C. S 9613(f), for contribution, or any claim
pursuant to the Federal Tort claims Act, 28 U.S.C. §§ 1346(b) and
2671, e_~t seq., or any claim arising from any express or implied
contract pursuant to 28 U.S.C. § 1346(a) (2) or 28 U.S.C.
~ 1491(a) (1).
B. Subject to Paragraphs 12.C and 19.B, each Settling Local
Governmental Entity hereby covenants not to sue and agrees not to
assert any administrative claim or cause of action of any kind
against the United States, or any employee, officer, agency or
instrumentality thereof, and/or the State, or any employee,
officer, agency or instrumentality thereof (but not including
47.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
counties, cities, local governmental entities or sanitation
districts) with respect to the Montrose NPL Site, the Montrose NRD
Area, or with respect to this Amended Decree, including but not
limited to (1) any direct or indirect claim for reimbursement from
the Hazardous Substance Superfund established pursuant to 26 U.S.C.
S 9507, under CERCLA Sections 106(b) (2), 111, 112, or 113, 42
U.S.C. S~ 9606(b) (2), 9611, 9612 or 9613, any claim pursuant to the
Federal Tort Claims Act, 28 U.S.C. ~S 1346(b) and 2671 et seq., or
any claim arising from any express or implied contract pursuant to
28 U.S.C. ~ 1346(a) (2) or 28 U.S.C. § 1491(a) (1), or any claim
pursuant to the California Hazardous Substance Account Act,
California Health and Safety Code §§ 25300 et seq., or under any
other provision of law; (2) any claim related to the Montrose NPL
Site or the Montrose NRD Area under CERCLA Sections 107 or 113, 42
U.S.C. S§ 9607 or 9613, against the United States, including any
department, agency, or instrumentality of the United States and/or
the State, or any employee, officer, agency or instrumentality
thereof (but not including counties, cities, local governmental
entities or sanitation districts); or (3) any claims arising out of
response activities at the Montrose NPL Site. Nothing in this
Amended Decree shall be deemed to constitUte preauthorization of a
claim within the meaning of Section 111 of CERCLA, 42 U.S.C.
§ 9611, or 40 C.F.R. § 300.700(d).
C. In any subsequent administrative or judicial proceeding
initiated by plaintiffs for Natural Resource Damages, injunctive
relief, recovery of Response Costs, or other appropriate relief
with respect to the Montrose NPL site, the Settling Local
Governmental Entities shall not assert, and may not maintain, any
48.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
defense or claim based upon principles of waiver, res ~,
collateral estoppel, issue preclusion, claim splitting, or other
defense based upon any contention that the claims raised by the
plaintiffs in the subsequent proceeding were or should have been
brought in the instant case; provided, however, that nothing in
this Paragraph 20.C affects the enforceability of plaintiffs'
covenants not to sue set forth in Paragraphs 11 and 17 of this
Amended Decree.
PENALTIES FOR LATE PAYMENTS
21. A. If the payment required of the Settling Local
Governmental Entities by Paragraph 9 of this Amended Decree is not
made by the date specified in that Paragraph, the Settling Local
Governmental Entities shall be liable, in addition to the payment
specified in Paragraph 9, for the following amounts to the Trustees
for each day of delay in payment:
Days O~ Delay
1-14
15-60
Beyond 60 Days
Payment Per Day of Delay
$ 2500/day
$ 3750/day
$ 5000/day
payments due under this Paragraph 21.A shall be paid by
certified or bank check or warrant and disbursed to the Trustees,
50% to the United States and 50% to the State, to the addressees
identified in Paragraph 37. stipulated penalties due under this
Paragraph 21.A are due within thirty (30) days following receipt by
the Settling Local Governmental Entities of a written demand by the
United States or the State for payment of such stipulatedi
penalties. 1
B. If any payment required of the Settling Local Governmental i
49.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Entities by Paragraphs 14.B, 14.F, or 14.G of this Amended Decree
is not made by the dates specified in those Paragraphs, the
Settling Local Governmental Entities shall be jointly and severally
,
liable, in addition to the payments specified in Paragraphs 14.B,
14.F, or 14.G of this Amended Decree, for the following amounts to
the United States and the State for each day of delay in payment:
Days of Delay
1-14
15-60
Beyond 60 Days
Payment Per Day of Delay
$ 2500/day
$ 3750/day
$ 5000/day
Stipulated penalties are due within thirty (30) days following
receipt by the Settling Local Governmental Entities of a written
demand by the United States or the State for payment of such
stipulated penalties. All payments under this Paragraph 21.B for
s~ipulated penalties shall be made in accordance with instructions
provided by the United States or the State to the Settling Local
Governmental Entities subsequent to the lodging of this Amended
Decree, with notice to the United States or the State, all as
provided in Paragraph 14.F of this Amended Decree. Payment of any
stipulated penalty pursuant to this Paragraph 21.B shall be in
addition to any other remedy or sanction available to the United
States and the State for the failure of the Settling Local
Governmental Entities to make timely payment under this Paragraph.
22. Payments due under Paragraph 21.A shall be in addition to
any other remedies or sanctions that may be available to the Unitea
States and the State on account of the Settling Local Governmental
50.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Entities' failure to comply with the terms of this Amended Decree,
provi4ed that a failure by the Settling Local Governmental Entities
to make timely payment as provided in this Amended Decree shall not
constitute a material default unless the delay in payment exceeds
thirty (30) days from the due date provided in this Amended Decree.
RETENTION OF RECORDS
23. A. Until ten years after the entry of this Amended
Decree, each Settling Local Governmental Entity shall preserve and
retain all records and documents now in its possession or control
or which come into its possession or control, that relate to the
release of any hazardous substance to or from the Montrose NPL
site, and which have not been determined to be privileged in
accordance with the procedures in Paragraph 23.B of this Amended
Decree. At the conclusion of this document retention period, each
Settling Local Governmental Entity shall notify the United States
and the State at least ninety (90) days prior to the destruction of
any such records or documents, and upon request by the United
States and the State, each Settling Local Governmental Entity shall
make available any such records or documents at a location within
Region IX of EPA designated by the United States and the State.
B. With respect to the obligation to retain records and
documents set forth in Paragraph 23.A, each Settling Local
Governmental Entity may assert that certain documents, records and
other information are privileged under attorney client privilege,
or any other privilege recognized under state or federal law. In
connection with the assertion of any such claim of privilege, the.,
Settling Local Governmental Entity shall provide the United States
and the State with the following: (1) title of document or record;
51.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(2) date of document or record; (3) name and position of the author
of the document or record; (4) description of the subject of the
document or record; and (5) the specific basis for the privilege
asserted.
DISCLAIMERS
24. Nothing in this Amended Decree, or any of its provisions,
or any of the United States' or the State's determinations or
actions taken pursuant to this Amended Decree, is intended to or
shall be interpreted as supporting or opposing County Sanitation
Districts of Orange County's presently pending application for a
renewal of its NPDES permit granting a waiver of secondary
treatment requirements, issued pursuant to Section 301(h) of the
Clean Water Act, as amended, 33 U.S.C. § 1311(h). INDEPENDENT CONTRACTOR
25. It is understood and agreed that LACSD, its agents,
officers, employees, and contractors in the performance of the work
and services provided pursuant to Paragraph 15 of this Amended
Decree shall act as independent contractors and not as agents or
employees of EPA.
NO WA~VSRS OF CONFIDENTIALITY OR PRIVILEGE
26. Disclosure, whether oral or written, including provision
of data, reports, documents, and other material and information, by
the United States and the State to LACSD or to any contractor
engaged directly or indirectly by LACSD for work required pursuant
to Paragraph 15 of this Amended Decree is not intended to and shall
not constitute a waiver of any otherwise applicable exemption or
privilege from disclosure under federal or state law. Where the
United States and the State have identified any such information as
52.
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
28
confidential and/or privileged, LACSD and its contractors shall not
disclose such information, in whatever form, to any other person
without prior %~ritten authorization by the United States and the
State. LACSD shall notify the United States and the State
immediately and in ~riting of any claim by any other person that a
disclosure is required by law or order of a court of competent
jurisdiction and shall provide a reasonable opportunity to the
United States and the State to pursue appropriate remedies.
27. LACSD may assert any confidentiality claims available to
LACSD 'under state or federal law covering part or all of the
information provided to the United States and the State pursuant to
Paragraph 15 of this Amended Decree. If LACSD is requested by the
United States and the State under this Amended Decree to produce a
document obtained from a third party which LACSD is obligated to
protect from disclosure by state or federal law, it shall not
produce such documents until such time as the United States and the
State have taken appropriate measures to allow production.
CONFIDENTIAL INFORMATION/OWNERSHIP OF MATERIALS
28. All data, reports, studies, and other documents developed
by LACSD directly or by any contractor retained by LACSD for work
required pursuant to Paragraph 15 of this Amended Decree shall be
and remain the property of the United States and the State. All
such materials shall be confidential and shall not be disclosed by
LACSD or its contractors to any person except as authorized in
writing by the United States and the State, or as required by law.
VOIDABILITY
29. In the event that a final judicial determination is made
by the District Court or, upon appellate review, by a higher court,
53.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that the entry of this Amended Decree shall not be approved, this
Amended Decree and the settlement embodied herein shall be voidable
by written notice to the other Parties at the sole discretion of
any party to this Amended Decree. If a party voids this Amended
Decree pursuant to this Paragraph, the terms hereof may not be used
as evidence in any litigation or other proceeding.
COMPLIANCE WITH OTHER ~AWS
30. This Amended Decree shall not be construed in any way to
affect any past, current, Or future obligation of the Settling
Local Governmental Entities (individually or collectively) or any
other°person or entity'to comply with any federal, state or local
law.
RETENTION OF JURISDICTION
31. The Court shall retain jurisdiction of this matter for
the purpose of entering such further order, direction, or relief as
may be necessary or appropriate for the construction,
implementation, or enforcement of this Amended Decree.
AUTHORIZED REPRESENTATIVE
32. Each undersigned representative of the Settling Local
Governmental Entities certifies that he or she is fully authorized
to enter into the terms and conditions of this Amended Decree and
to legally execute and bind that party to this Amended Decree.
MODIFICATION
33. The terms of this Amended Decree may be modified only by
a subsequent written agreement signed by all of the Parties
signatory hereto, and approved by the Court as a modification to
this Amended Decree.
54.
1 PUBLIC COMMENT
2 34. The Parties acknowledge that this Amended Decree will be
3 subject to a 30-day public comment period as provided in 28 C.F.R.
4 S 50.7. The Parties further acknowledge that this Amended Decree
5 may be the subject of a public meeting as specified in Section 7003
6 of RCRA, 42 U.S.C. S 6973. The United States reserves the right to
7 withdraw its consent to this Amended Decree if comments received
$ disclose facts or considerations which show that this Amended
9 Decree is inappropriate, improper, or inadequate. The Settling
10 Local Governmental Entities consent to the entry of this Amended
11 Decree by the Court without further notice.
12 PROTECTION AGAINST CLAIM~
13 35. The United States and the State acknowledge and agree
14 that the payments to be made by the Settling Local Governmental
15 Entities pursuant to this Amended Decree represent a good faith
16 settlement and compromise of disputed claims and that the
17 settlement represents a fair, reasonable, and equitable discharge
18 or the matters addressed in this Amended Decree. With regard to
19 any costs, damages, or other claims against the Settling Local
20 Governmental Entities for matters addressed in this Amended Decree,
21 the Settling Local Governmental Entities are entitled to, as of the
22 Date of Initial Approval of this Amended Decree, such protection as
23 is provided in Section l13(f) of CERCLA, 42 U.S.C. § 9613(f), and
24 all other provisions of federal or state statute or of common law
25 which limit or extinguish their liability to persons not party to
26 this Amended Decree. No contribution protection is provided
27 pursuant to this Amended Decree for any claim for Response Costs
28 under CERCLA incurred in connection with the presence, release, or
55.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
threatened release of a hazardous substance outside the Montrose
NPL Site. Any rights Settling Local Governmental Entities may have
to obtain contribution or otherwise recover costs or damages 'from
persons not party to this Amended Decree are preserved.
36. The Trustees have determined that the payments to be made
pursuant to Paragraphs 7-9 of this Amended Decree are appropriate
actions necessary to protect and restore the natural resources
damaged by the release of DDT, PCBs, and other hazardous substances
alleged in the First Claim for Relief in the Complaint and that the
payments satisfy the requirements of Section 122(j) (2) of CERCLA,
42 U.S.C. S 9622(j) (2).
NOTICE
37. Any notice required hereunder shall be in writing and
shall be delivered by hand, facsimile or overnight mail as follows:
Notice to the United States and the State:
Chief
Environmental Enforcement Section
U.S. Department of Justice
1425 New York Ave, N.W.
Washington, D.C. 20005
Facsimile No. (202) 514-2583
Supervising Deputy Attorney General
Land Law Section
Office of the Attorney General
300 South spring Street
Los Angeles, CA 90013
Facsimile No. (213) 897-2801
Notice to Settling Local Governmental Entities shall be provided in
accordance with the provisions of the Order Re: Discovery
Coordination and Service List entered June 26, 1992, and any
amendment thereto.
Each party to this ,Mmended Decree may change the person(s) iti
has designated to receive notice for that party, or the addresses I
56.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for such notice, by filing a written notice of such change with the
Court and serving said notice on each of the other Parties to this
Amended Decree, or in accordance with the provisions of the Order
Re: Discovery Coordination and Service List entered June 26, 1992,
and any amendment thereto.
38. This Amended Decree may be executed in any number of
counterparts, and each executed counterpart shall have the same
force and effect as an original instrument.
ENTIRE AGREEMENT
39. This Amended Decree constitutes the entire understanding
of the Parties with respect to its subject matter, and upon the
Date of Initial Approval of this Amended Decree shall supersede the
1993 Decree with respect to the rights and obligations of the
Parties.
SFFECTIVE AND TERMINATION DATES
40. This'Amended Decree shall be effective upon the date
which this Amended Decree has been initially approved and signed by
the United States District Court.
41. The Court may terminate this Amended Decree upon joint
motion by the Settling Local Governmental Entities, after 45 days
notice, upon fulfillment of the obligations of all of the Settling
Local Governmental Entities under this Amended Decree. Termination
of this Amended Decree and the operation of the provisions of
Paragraphs 11 and 17 with respect to termination of the obligations
of Category II entities shall not affect the provisions herein for
contribution protection, document retention., and the covenants not
to sue a~d reservations of rights, which shall remain in effect as
an agreement among the Parties.
57.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2°6
27
28
42. By signature below, all Parties consent to this Amended
Decree.
ORDER
THE FOREGOING Amended Consent Decree among plaintiffs the
United States and the State of California and the Settling Local
Governmental Entities is hereby APPROVED. There being no just
reason for delay, this Court expressly directs, pursuant to Rule
54(b), Federal Rules of Civil Procedure, ENTRY OF FINAL JUDGMENT in
accordance with the terms of this Amended Consent Decree this
DAY of , 1996, each party hereto shall bear
its own costs and attorney's fees except as specifically provided
herein.
A. ANDREW HAUK
Senior United States District Judge
and
Chief Judge Emeritus
58.
10
11
12
13
14
15
17
18
19
20
21
22
23
24
25
26
27
28
FOR THE UNITED STATES OF AMERICA:
WE HEREBY CONSENT to the entry of the Amended Consent Decree
in Un'ted St t al. v. Montrose Chemical Cor oration of
California, et al., No. CV90-3122-AA}{ (JRx), subject to the public
notice and comment requirements of 28 C.F.R. S 50.7.
DATE:
JOHN C,. CRUDEN
Deputy Assistant Attorney General
Environment and Natural Resources
Division
United States Department of Justice
DATE:
ADAM M. KUSHNER
WILLIAM A. WEINISCHKE
STEVEN O'ROURKE
KATHRYN SCHMIDT
JON A. MUELLER
PHILLIP A. BROOKS
Environmental Enforcement Section
Environment and Natural Resources
Division
United States Department of Justice
Post office Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 514-4046
NORA M. MANELLA
United States Attorney
Central District of California
DATE:
KURT ZIMMERMAN
Assistant United States Attorney
Central District of California
Federal Building
300 North Los Angeles Street
Los Angeles, CA 90012
59.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DATE:
DATE:
KEITH TAKATA
Acting Director of the Hazardous
Waste Management Division
United States Environmental.
Protection Agency
Region IX
75 Hawthorne Street
San Francisco, CA 94105
JOHN J. LYONS
Assistant Regional Counsel
United States Environmental
Protection Agency
Region IX
75 Hawthorne Street
San Francisco, CA 94105
60.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
26
27
28
FOR THE CALIFORNIA DEPARTMENT OF FISH AND GAME:
WE HEREBY CONSENT to the entry of the Amended Consent Decree i~
Un'ted Sta e al. v. Montrose Chemical Cor oration of
California, et al., No. CV 90-3122-AAH (JRx), subject to the public
_
notice and comment requirements of 28 C.F.R. S 50.7.
DATE:
JACQUELINE B. SCHAFF. R
Director of California Department of
Fish and Game
61.
FOR THE CALIFORNIA STATE LANDS COMMISSION:
2
WE HEREBY CONSENT to the entry of the Amended Consent Decree in
3
United States, et aL · v. MQptrose Cbem~a~ Corporation of
4
California, et al., No. CV 90-3122-AAH (JRx), subject to the public
5
notice and comment requirements of 28 C.F.R. S 50.7.
7 DATE:
ROBERT C. HIGHT
Executive Officer of the State
Lands Commision
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
62.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOR THE CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:
WE HEREBY CONSENT to the entry of the Amended Consent Decree ir
United States. e~ aL. v. Montrose Chemical Corporation of
California, et al., No. CV 90-3122-AAH (JRx), subject to the public
notice and comment requirements of 28 C.F.R. S 50.7.
DATE:
DONALD W. MURPHY
Director California Department of
Parks and Recreation
63.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOR THE CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL:
WE HEREBY CONSENT to the entry of the Amended Consent Decree in
Un~ted States, ~ al. v. Montrose Chemical Corporation of
California. et al., No. CV 90-3122-AAH (JRx), subject to the public
notice and comment requirements of 28 C.F.R. S 50.7.
DATE:
JESSE HUFF
Director of California Department of
Toxic Substances Control
64.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOR THE CALIFORNIA, REGIONAL WATER QUALITY CONTROL BOARD, LO~
ANGELES REGION:
WE HEREBY CONSENT to the entry of the Amended Consent Decree in
Un~ted State~, ~ al. v. Montrose Chemical Corporation of
California, et al., No. CV 90-3122-AAH (JRx), subject to the.
public notice and comment requirements of 28 C.F.R. S 50.7.
DATE:
ROBERT P. GHIRELLI
Los Angeles Region, Regional
Water Quality Control Board
65.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ATTACHMENT "A"
CATEGORY I ENTITIES
As used in this Amended Consent Decree, "the Category I
entities" means the following Settling Local Governmental Entities:
(1) the following county sanitation districts of Los
Angeles County:
South Bay cities Sanitation District of Los Angeles County;
County Sanitation District No. 1 of Los Angeles County;
County Sanitation District No. 2 of Los Angeles County;
County Sanitation District No. 3 of Los Angeles County;
County Sanitation District No. 4 of Los Angeles County;
County Sanitation District No. 5 of Los Angeles County;
County Sanitation District No. $ of Los Angeles County;
County Sanitation District No. 9 of Los Angeles County;
County Sanitation District No. 11 of Los Angeles County;
County Sanitation District No. 14 of Los Angeles County;
County Sanitation District No. 15 of Los Angeles County;
County Sanitation District No. 16 of Los Angeles County;
County Sanitation District No. 17 of Los Angeles County;
County Sanitation District No. 18 of Los Angeles County;
County Sanitation District No. 19 of Los Angeles County;
County Sanitation District No. 20 of Los Angeles County;
County Sanitation District No. 21 of Los Angeles County;
County Sanitation District No. 22 of Los Angeles County;
County Sanitation District No. 23 of Los Angeles County;
County Sanitation District No. 26 of Los Angeles County;
County Sanitation District No. 27 of Los Angeles County;
County Sanitation District No. 28 of Los Angeles County;
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28
County Sanitation District No. 29 of Los Angeles County;
County Sanitation District No. 32 of Los Angeles County;
County Sanitation District No. 34 of Los Angeles County; and
County Sanitation District No. 35 of Los Angeles County.
CATEGORY II ENTITIES
As used in this Amended Consent Decree, "the Category II
entities" means the following Settling Local Governmental Entities:
·
(1) Third-party defendant City of Los Angeles, including
its proprietary and non-proprietary departments;
(2) Third-party defendants in Los ~ngeles County that
discharge to the Joint Outfall System, to wit:
The cities of Alhambra, Arcadia, Artesia, Azusa, Baldwin
Park, Bell, Bell Gardens, Bellflower, Bradbury, Carson,
Cerritos, Claremont, Commerce, Compton, covina, Cudahy,
Culver City, Diamond Bar, Downey, Duarte, E1 Monte, E1
Segundo, Gardena, Glendora, Hawaiian Gardens, Hawthorne,
Hermosa Beach, Huntington Park, Industry, Inglewood,
Irwindale, La Habra Heights, La Mirada, La Puente, La
Verne, Lakewood, Lawndale, Lomita, Lynwood, Manhattan
Beach, Maywood, Monrovia, Montebello, Monterey Park,
Norwalk, Palos Verdes Estates, Paramount, Pasadena, Pico
Rivera, Pomona, Rancho Palos Verdes, Redondo Beach,
Rolling Hills, Rolling Hills Estates, Rosemead, San
Dimas, San Gabriel, San Marino, Santa Fe springs, Sierra
Madre, Signal Hill, South E1 Monte, South Gate, South
Pasadena, Temple City, Torrance, Vernon, Walnut, West
10
11
12
13
14
15
16
17
18
19
20¸
21
22
23
24
25
26
27
28
Covina and Whittier;
(3) Third-party municipal defendants in Los Angeles
County that do not discharge to the Joint Outfall System,
to wit:
The Cities of Agoura Hills, Avalon, Beverly Hills,
Burbank, Glendale, Hidden Hills, La Canada-Flintridge,
Palmdale, San Fernando, Santa Clarita, Santa Monica, West
Hollywood and Westlake Village;
(4) Third-party defendant County of Los Angeles,
including the following districts located therein:
County of Los Angeles, Los Angeles County Flood Control
District, Los Angeles County West Mosquito Abatement
District, Southeast Mosquito Abatement District, Compton
Creek Mosquito Abatement District, Antelope Valley
Mosquito Abatement District and the San Gabriel Valley
Mosquito Abatement District;
(5) Third-party defendant City of Long Beach;
(6) Third-party defendant Orange County, including
dependent special districts, third-party defendant
municipalities, and special districts located in the
County of Orange, to wit:
The cities of Anaheim, Brea, Buena Park, Costa Mesa,
Cypress, Fountain Valley, Fullerton, Huntington Beach,
Irvine, La Habra, La Palma, Los Alamitos, Newport Beach,
Orange, Placentia, Santa Ana, Seal Beach, Stanton,
Tustin, Villa Park and Yorba Linda; the County Sanitation
Districts of Orange County, including County Sanitation
Districts Nos. 1, 2, 3, 5, 6, 7, 11, 13 and 14 of Orange
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
County, Costa Mesa Sanitary District, Garden Grove
Sanitary District, Midway City Sanitary District, Irvine
Ranch Water District, Los Alamitos County Water District,
Yorba Linda Water District and the County of Orange,
including its dependent special district, the Orange
County Flood Control District;
(7) Third-party defendant Ventura County, including
dependent special districts, third-party defendant
municipalities and special districts located in the
County of Ventura, to wit:
The cities of Oxnard, Port Hueneme, San Buenaventura and
Thousand Oaks; the Ventura Regional Sanitation District
and its member cities (i.e., the Cities of Oxnard, Port
Hueneme, San Buenaventura, Thousand Oaks, and Camarillo)
and its member special districts (i.e., Camarillo
Sanitary, Channel Islands Beach Community Services, Ojai
Valley Sanitary, Saticoy Sanitary, Triunfo County
Sanitation, and Waterworks Nos. 1 and 16); and the County
of Ventura, including its dependent special districts the
Ventura County Flood Control District and Ventura County
Waterworks No. 17;
(8) Third-party defendant municipalities and water
districts located in San Bernardino County, to wit:
The Cities of Chino, Fontana, Montclair, Ontario and
Upland; the Cucamonga County Water District and the Chino
Basin Municipal Water District; and
(9) Third-party defendant South East Regional
Reclamation Authority, a joint powers authority formed
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and existing in the County of Orange.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ATTACHMENT "B"
THE SETTLING LOCAL GOVERNMENTAL ENTITIES
The listed entities, for the purposes of this Amended
Decree,
generally are described as follows:
1. Ail of the County Sanitation Districts of Los
A~geles County, which are also known as the Los Angeles County
Sanitation Districts, including but not limited to those
Districts that are part of the Joint Outfall System (JOS); and
those Districts that are not part of the Joint Outfall System,
but are within the County, including those Districts that release
and have released wastes to other systems and accordingly may
also be included within the groups described in the subparagraphs
below.
2. The Settling Local Governmental Entities set forth
in Attachment A that own and/or operate and/or maintain
wastewater cgllection and conveyance systems and facilities
(1) that connect for the discharge of wastewater, directly or
indirectly, or (2) that arrange for the discharge of wastewater,
directly or indirectly, or (3) that accept wastewater for
transport, directly or indirectly, to the collection, conveyance,
treatment and disposal systems and facilities owned and/or
operated and/or maintained by any or all of the districts
referenced in Subparagraph A above.
3. The City of Los Angeles, which owns, operates and
maintains wastewater collection, conveyance, treatment and
disposal systems and facilities that discharge treated wastewater
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
through the Hyperion Treatment Plant and Terminal Island
Treatment Plant into Santa Monica Bay and Los Angeles Harbor.
4. The Settling Local Governmental Entities set forth in
Attachment A that own and/or operate and/or maintain wastewater
collection and conveyance systems and facilities' (1) that
connect, for the discharge of wastewater, directly or indirectly,
or (2) that arrange for the discharge of wastewater, directly or
indirectly, or (3) that accept wastewater for transport, directly
or indirectly, to the wastewater collection, conveyance,
treatment and disposal systems and facilities of the City of Los
Angeles, consisting of:
a. The Settling Local Governmental Entities set forth
in Attachment A that own and/or operate and/or maintain
wastewater collection and conveyance systems and
facilities which connect for the discharge of
wastewater, directly or indirectly, or that arrange for
the discharge of wastewater, directly or indirectly, or
that accept wastewater for transport, directly or
indirectly, to the City of Los Angeles Hyperion
Treatment Plant; and
b. The Settling Local Governmental Entities set
forth in Attachment A that own and/or operate and/or
maintain wastewater collection and conveyance systems
and facilities which connect for the discharge of
wastewater, directly or indirectly, or that arrange for
the discharge of wastewater, directly or indirectly, or
that accept wastewater for transport, directly or
indirectly, to the City Of Los Angeles Terminal Island
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Treatment Plant.
5'. The City of Los Angeles, the City of Long Beach, and
other local governmental entities that own, operate and/or
control a public harbor in the Pacific Ocean that have caused or
could cause a release, and/or have released hazardous substances
and wastes, and/or injured the natural resources.
6. a. County Sanitation Districts Nos. 1, 2, 3, 5, 6, 7,
11, 13 and 14 of Orange County, California, collectively known
and referred to as "CSDOC", which individually and jointly own
and operate wastewater collection, conveyance, treatment and
disposal systems and facilities which discharge treated
wastewater through the CSDOC outfall into the Pacific Ocean at
the mouth of the Santa Aha River.
b. The Settling Local Governmental Entities set forth in
Attachment A, that either are member agencies or serve areas
within the member agency cities or unincorporated areas of CSDOC
and that own and/or operate and/or maintain wastewater collection
and conveyance systems and facilities that connect, for the
discharge of wastewater, directly or indirectly or that arrange
for the discharge of wastewater, directly or indirectly, or that
accept wastewater for transport, directly or 'indirectly, to the
collection, conveyance, treatment and disposal systems and
facilities owned and operated by any or all of the Districts
referred to in subparagraph 6.a. above.
7. The Southeast Regional Reclamation Authority
~"SERRA") and the local governmental entities that either are
member agencies or serve areas within the member agency cities or
unincorporated areas of SERRA and that own and/or operate and/or
I maintain wastewater collection and conveyance systems and
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
facilities that connect, for the discharge of wastewater,
directly or indirectly, or that arrange for the discharge of
wastewater, directly or indirectly, or that accept wastewater for
transport, directly or indirectly, to the collection, conveyance,
treatment and disposal systems and facilities owned and operated
by SERRA that discharges treated wastewater through the SERRA
outfall into the waters of the Pacific Ocean in Southern Orange
County at the mouth of the San Juan Creek.
8. The Settling Local Governmental Entities located in Los
Angeles and Ventura Counties, set forth on Attachment A that own
and/or operate and/or maintain wastewater collection, conveyance
and/or treatment and disposal systems and facilities that connect
for the discharge of wastewater, directly or indirectly, or that
arrange for the discharge of wastewater, directly or indirectly,
or that accept wastewater for transport, directly or indirectly,
to the collection, conveyance, treatment and disposal system and
facilities owned and/or operated and/or maintained by Settling
Local Governmental Entities in Ventura County which discharge
treated wastewater through outfalls into Santa Monica Bay in the
vicinity of the coastlines of Los Angeles and Ventura Counties.
9. The City of Avalon which discharges treated wastewater
into the waters of the Pacific Ocean adjacent to Santa Catalina
Island.
10. a. chino Basin Municipal Water District, known and
referred to herein as "CBMWD", which owns, operates and maintains
wastewater collection, conveyance, treatment and disposal systems
and facilities that discharge directly or indirectly, a portion
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of its wastewater through the LACSD wastewater collection,
conveyance, treatment and disposal facilities, including the
Joint Outfall System into the Pacific Ocean, and a portion of its
treated wastewater into the Santa Ana River and a portion of its
treated wastewater into the CSDOC Santa Ana River Interceptor
sewer line which connects to CSDOC facilities, including the
outfall into the Pacific Ocean at the mouth of the Santa Ana
River.
b. The Settling Local Governmental Entities set forth
in Attachment A that either are the contract agencies or
serve areas within the contract agency cities or unincorporated
areas of CBMWD and that own and/or operate and/or maintain
wastewater collection and conveyance systems and facilities that
connect for the discharge of wastewater, directly or indirectly
or that arrange for the discharge of wastewater, directly or
indirectly, or that accept wastewater for transport, directly or
indirectly, to the collection, conveyance, treatment and disposal
facilities and systems owned and operated by CBMWD.
11. a. The Settling Local Governmental Entities set forth
on Attachment A that own and/or operate and/or maintain
surface water, stormwater or drainage run-off control systems,
including creeks, rivers and improved channels and other
facilities which ultimately discharge surface waters, stormwaters
and/or drainage into any one or more of the areas of wastewater
discharge described in Paragraphs 1 through 10 above.
b. The Settling Local Governmental Entities set forth
in Attachment A that own and/or operate and/or maintain surface
water, stormwater or drainage run-off control systems, including
i but not. limited to sidewalks, streets, gutters, storm drains,
2 creeks, rivers and improved channels and other facilities that
3 connect directly or indirectly and discharge surface waters,
_ -
stormwaters and/or drainage to surface water, stormwater or
5 drainage run-off control system and f~cilities referred to in
6 Paragraph ll.a. above.
7 12.. a. The Settling Local Governmental Entities set forth
8 an Attachment A that conducted pest and vector control activities
9 in areas of Los Angeles C~unty where the surfacewater,
.
stormwater, or drainage run-off control systems are part of or
connect to the Los Angeles County Flood Control District's
system, or which conducted pest and vector control activities in..
areas of ventura, san Bernardino or orange Counties where the
surface water, stormwater, or drainage run-off control systems
are tributary to discharge directly ~o the Pacific Ocean.
All references in paragraphs 1 through 10 above, relating to
the ownership, operatio~ or maintenance of any systems or
faCilities or the actior~ and activities by any of the Settling
Local GoVernmental Entities set forth on Attachment A, include,
~ -
for purposes of this Amended Consent Decree, all time periods
related to any allegations in the plaintiffs' Comp.l~aint or any
cross-claim or third party complaint filed in the action, and
further include the predecessors, successors and assigns of all
the Settling Local Governmental Entit~ies in Attachment A, and
·
those Settling Local Governmental Entities that have ceased to
26 exist or have ceased the operation or actions alleged, as of the
27 Date of Final Approval of this Amended Decree.
·
·
~4
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
28