Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:06-cv-00141-LAS
Case 1.06-cv-00141-LAS

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Contract between Defense Supplies Corporation and Tidewater Associated Oil Company (Feb. 18, 1943) ("1943 Tidewater Contract"), P1. App. 2 16-43. Response: This is a legal conclusion to which RCFC 56 requires no response here. 11. The contracts identified in Paragraphs 1-10 required the Oil Companies to produce, manufacture, sell, and deliver large volumes Avgas. 1942 Shell Contracts, P1. App. 1-24; 1943 Shell Contract, P1. App. 25-53; 1942 Union Oil Contract, P1. App. 54-67; 1943 Union Oil Contract, P1. App. 68-98; 1942 Richfield Contract, P1. App. 99- 116; 1943 Richfield Contract, P1. App. 1 17-48; 1942 Texas Contract, P1. App. 149-63; 1943 Texas Contract, P1. App. 164-91 ; 1942 Tidewater Contract, P1. App. 192-2 15; 1943 Tidewater Contract, PI. App. 2 16-43. Response: These are legal conclusions to which RCFC 56 requires no response here. They cannot be supported, in any event, by the cited documents, which are unsigned and not authenticated in this record. 12. "Two byproducts, acid sludge and spent alkylation acid, necessarily resulted from the production of avgas." United States v Shell Oil Co., No. 91-0589, 1995 U.S. Dist. LEXIS 19778, at *7 (C.D. Cal. Sept. 18, 1995); see also United States v. Shell Oil Co., 294 F.3d 1045, 1050-51 (9th Cir. 2002); United States v. Shell Oil Co., 13 F. Supp. 2d 1018, 1023-25 (C.D. Cal. 1998); Stipulation 398,493-96' PV App. 452, 5 10-1 1. Response: Uncontroverted as matter of chemistry.

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reprocessing this acid were insufficient. When the resulting bottleneck threatened to halt avgas production, the Oil Companies dumped large quantities of spent alkylation acid at the McColl site."

g, at 1051. 294 F.3d.
Uncontroverted, but the Government was not responsible. P1. App. 520 (7 524).

Response:

Moreover, "[tlhe United States did not exercise any actual control over the Oil Companies' disposal of spent acid and acid sludge at the McColl site; indeed, it did not even know that the Oil Companies had contracts to dispose of their waste at the site." 294 F.3d at 1057. 23. "Most of the acid waste at the McColl Site began as fresh sulfuric acid

... that was

used in the alkylation units to produce alkylate for [Avgas]." Stipulation 496, P1. App. 51 1; See,
e.g., Shell, 13 F. Supp. 2d.at 1023-26.

Response: This is literally uncontroverted but incomplete and potentially misleading. A majority of the total waste discovered at the McColl site "was acid sludge resulting from the chemical treatment of non-avgas refinery products using spent alkylation acid." 294 F.3d at 1051 (emphasis added). 24. The remaining acid waste at the McColl Site was related to benzol production. at 294 F.3d. 1051; g, Supp. 2d at 1023. 13 F. Response: Uncontroverted, but, for precision, "about 5.5% was acid sludge resulting from the treatment of government-owned benzol." 294 F.3d at 105 1.

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.-

I

1

1

RONALD L. OLSON PETER R. TAPI.

... . -

... -

Resources Division

Telephone: 213-894-2451

United

States

of America

UNITED STATES DISTRICT CO
CENTRAL DISTRICT OF CALIF0

1

P l a i n t iff s,

FINAL JUDGMENT PURSUANT TO RULE 54 (bl FRCP

1
SHELL OIL COMPANY, et
dl.,

1 1

Date: [ n o t set1 Time: [ n o t s b t ]

Defendants,

Ctrm: Honorable Robert J. Kelleher

AND RELATED ACTIONS.

OCT 1 3 1999
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WHEREAS this Court entered partial summary judgment: on behalf

of Plaintiffs, the United States of America and the State of
California, against Defendants, Shell Oil Company, Inc., Atlantic

~ichfieldCompany, Texaco, I n c . and Union Oil Company of California
(hereinafter the "Oil Companies") on liability pursuant to the Complaint on September 29, 1993, in relation to the McColl Superfund Site located in the City of Fullerton, in Orange County, California;
,WHEREAS this Court entered a "Partial Consent

Decree Among

Plaintiffs and Oil Company Defendants Regarding Certain Cost Claims

and Order" on December 12, 1994, which resolved Plaintiffs* claims
for recovery of costs incurred through approximately June 1990, which

claims were paid by the Oil Companies in the amount of
and

$18,000,000;

WHEREAS the Partial Consent Decree, entered December 12, 1994,
provides at paragraph 10 that the Judgment and Order filed by the Court on September 28, 1993, constitutes a declaratory judgment
pursuant to 4 2 U . S . C . 5 9613(g) ( 2 ) Tn favor of Plaintiffs against the

Defendant Oil Companies for further response costs, which include all response costs with regard to the McColl Superfund S i t e incurred by
the Plaintiffs after approximately June 1990;
WHEREAS this Court entered partial summary judgment on behalf

of the Oil Companies against the United States as Counterdefendant on
liability pursuant to Claims I and XI of the Oil Companies1 Counterclaim on September 18, 1995;
WHEREAS this Court entered a Memorandum and Order on August 12,

1998, allocating 100% of the liability for CERCLA response costs at
the Mccoll Superfund Site to the United S t a t e s as Counterdefendant;

Pl. Damages SJ App. 42

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WHEREAS the United S t a t e s as Counterdefendant and the Oil

Companies have stipulated to the response costs incurred or paid by

the Oil Companies up to and including October 1998, in accordance
with the terms of a "Stipulation" signed by the United States and the Oil Companies, dated September 30, 1999 ("Stipulationw);
WHEREAS the United States and the State of California, as

Plaintiffs,

have

outstanding demands against the O i l Companies for

response costs incurred by the Plaintiffs for the period beginning in
approximately June 1990, plus prejudgment interest from the applicable dates of demand, which costs have not yet been stipulated to by the parties;
WHEREAS the United States is presently responsible for 100% of

the response costs incurred by the Plaintiffs, as a result of the Court's Memorandum and Order of August 1 2 , 1998;

WHEREAS the Plaintiffs have continued to incur response costs

in relation to the McColl Superfund Site and intend to assert
additional cost recovery claims against responsible parties;
WHEREAS the parties have not completed their review of

supporting documentation for the Plaintiffs' outstanding response cost claims, but have established a schedule to do so in the near
future;

WHEREAS, subject to appeal, allocation of said response costs

will be in accord with this Courl;'s Memorandum of Decision and Order
entered August 12, 1990, and proceedings with respect to the

determination of said costs will continue in this Court under its continuing jurisdiction until reaolved by stipulation or further
proceedings;

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WHEREAS the parties agree that Plaintiffs retain all their

rights to pursue their claims for response costs to judgment in this
Court, and the Oil Companies retain the right to seek allocation of those costs and additional response costs incurred since September 1,
1998, in accord with the Memorandum of Decision and Order entered
August 12, 1998;

WHEREAS on April 28, 1997, the O i l Company defendants on one
side

and defendant McAuley

LCX

Corporation on the other dismissed

with prejudice cross claims filed against each other;

WHEREAS on January 16, 1997, this Court entered a First Amended
Consent Decree between Plaintiffs and Defendant, McAuley LCX
corporation, adjudicating all rights between said parties;
WHEREAS on or about March 12, 1993, the Plaintiffs and the

Defendant Oil Companies dismissed without prejudice their claims
against defendants Los Coyotes Estates, LTD, and Ramparts Research Financial Corp.; and
&

-.

WHEREAS, based upon these circumstances, the court finds t h a t

judicial efficiency will be promoted by the entry of a final judgment
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, as described below:
THEREFORE, IT TS HEREBY ORDERED, ADJUDGED AND DECREED that:,
1.

Subject to its right to appeal the Court's Orders dated

September 18, 1995 and August 12, 1998, the United States as Counterdefendant shall pay to the Oil Companies the amount specified in the Stipulation, on the schedule and in accordance with the contingencies and other terms set forth i n the Stipulation. Said

payment shall represent response costs incurred by the Oil Companies,

- 4 J

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including amounts paid to the plaintiffs, up to and including October
1998.

Interest shall be determined and payable as provided by 4 2

U.S.C. 5 9 6 0 7 2.

The Court will retain jurisdiction over outstanding

consent decrees and claims n o t yet adjudicated.
3.

The C o u r t determines under R u l e 54 (b) of the Federal

Rules of Civil Procedure that there is no just reason f o r delay i n

entering final judgment upon t h e Plaintiffs' complaint and the Oil
companies' c o u n t e r c l a i m based on t h e partial summary judgments,
consent decrees, orders, dismissals and stipulations h e r e t o f o r e described, and hereby e x p r e s s l y directs that f i n a l judgment be entered, and t h e same here i s entered.

Dated :

n m -

-4 80499

g k
T h e Honorable R o e r t 3. Kelleher U n i t e d S t a t e s District Judge

Judgment e n t e r e d .

Clerk

,

1999

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STIPULATION
1-

This STIPULATION ("Stipulation") is entered into as of

the 30Ch day of September 1999 between the Parties, the Plaintiff and

counterclaim-Defendant, UNITED STATES OF AMERICA ('United

States")

and the Defendants and Counterclaim-Plaintiffs,Shell Oil Company,
Inc.,
~ t l a n t i cRichfield Company, Texaco, Inc. and Union Oil Company

.(hereha£ ter the "Oil Companiesf1. 1
2.

The Parties hereby acknowledge that the United States

is reserving all rights to appeal the Court's Orders dated

September 18, 1995 and August 12, 1998 (the "Orders"), and that the Oil Companies are reserving all rights to appeal the Court's Order of
September 29, 1993, and that nothing in this Stipulation shall in any
way prejudice such rights of appeal.

3,

In order to avoid any further litigation regarding the

amount of the Oil Companies' claimed response costs under Counts I
and 11 of the Counterclaim in this matter, the Parties stipulate in

compromise that the Oil Companies' total claimed response costs
(excluding interest but including payments m a d e by the Oil Companies
to p l a i n t i f f s ) through October 31, 1998 consists of the sum of
$64,219,514.46.
4.

If t h e Orders a r e affirmed by a final order of a Federal

district court from which there is no further appeal (hereafter,
wfinal ordern), or if the time for appeal from a final order runs without an appeal being filed, the United States shall pay to the Oil

Companies the sum of

$64,219,514.46.

Such payments shall occur as

soon as reasonably practicable after the united States receives

notice of any final order, or upon the expiration of time for appeal

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w i t h o u C an appeal being filed.

Interest shall be determined and
§

payable as provided by 42 U.S.C.

9607.

In the event that the

O r d e r s are n o t affirmed in full, the Parties s h a l l again negotiate in
good faith to attempt to reach a stipulated payment f o r response

costs.
5.

The parties s t i p u l a t e t h a t payment s h a l l be in the form

of ~ l e c t r o n i c~ u n d s Transfer i n accordance with instructions provided

by the Oil Companies.
6.

In the event that payments s p e c i f i e d by t h i s Stipulation
.

are not made within one hundred and t w e n t y days (120) days of the
United States' receipt of notice of a final order affirming the

O r d e r s , or upon the expiration of time for appeal without an appeal
being filed, po&t-judgment interest on the unpaid balance shall be

paid at the r a t e established pursuant to section 107(a) of C E R c m ,
U.S.C.

42

5 9607(a), commencing o n the d a t e the United States receives

notice, or upon expiration of time for appeal, and accruing through

the date of the payment.
7.
that the

The Parties to this Stipulation recognize and acknowledge

obligations of the United

S t a t e s can

only be paid
Nothing

from appropriated funds legally available for such purpose.

in this Stipulation shall be interpreted or construed as a commitment
or requirement that the United S t a t e s obligate or pay funds i n

'I contravention of
!

the Anti-Def iciency Act, 3 1 U.S.C. 1 1341, or any

other a p p l i c a b l e provision of law.

FOR W E UNITED STATES
M I S 5. SCHIFFER Assistant Attorney General Environment & Natural Resources
Division

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Dated:

9/SO {4 7

By:

M I ~ H A E LJ . ZEVENBERGEN Environmental Defense Section United States D e p a r t m e n t of Justice
ALEJANDRO N. KAYORKAS

United States Attorney

JOHN RUBINER Assistant United States Attorney C e n t r a l District of California Counsel for the United States of
America

FOR THE OIL COMPANY DEFENDANTS
MUNGER, TOLLES
Dated:
&

OLSON

9-I @ - 9 7

e,:
'

" 7 z ?c4k
RONALD L. OLSON

PETER R. TAFT CYNTHIA L. BURCH

Counsel for Shell Oil Company, Union O i l Company of California, Atlantic Richfield Company and Texaco, Inc.

Pl. Damages SJ App. 48