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

Case 1:06-cv-00141-LAS

Document 31-4

Filed 06/20/2008

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categories for the time period of-July 1, 1987 through September

30, 1990:
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DHS Payroll (CA-L1) and DHS Travel and Other Direct
;

Costs (CA-TI) (Total of $632,994.00)
(v)

and
Costa:

-DeDart.mentofia&ke

(CA-L3) costs ,

incurred during the time period of July 1, 1988 through June 30,
1991,

in relation to California DOJ Docket No. 490067430-

SD89CV0267 (McColl Cost Recovery) ($52,909.85)

.

S.

on LatePavments. In the event that any

payments required by,Section V or Section VI, Paragraph 6, are not made when due, Interest shall continue to accrue on the
unpaid balance through the date of payment.
6.

.If any amounts due EPA or the State under this Consent
.

a.

Decree are not paid by the required date, the Settling Defendants
shall pay as a stipulated penalty, in addition to the Interest

required by Paragraph 5, $5,000 per day for each payment that is late.
b.

stipulated penalties are due and payable within thirty.

(30) days of the Settling Defendants' receipt from EPA or the

State of a demand for payment of the penalties.

A l l payments to

EPA under'this Paragraph 6 shall be paid in the manner described

for the payment of response costs in Section V, paragraph 4(a) above. At the time of payment, Settling Defendants shall

simultaneously send written notice of payment and a copy of any transmittal documentation t o EPA and DO3 in accordance with

Pl. Damages SJ App. 11

Case 1:06-cv-00141-LAS

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section XI (Notices and submissions)

.

A l l payments to the State

under this Paragraph 6 shall be paid by certified or cashier's check made payable to the California Department of ~ 0 x 3 . ~ ~ substances control and shall reference JZniSed s + n + u t e qf
pt a1
t

0 - S -Dist. Ct. NO. (N-91-058949006-430-

RJK; DTSC project No. 400093; Cal. DOJ Docket NO.

~ ~ 8 9 C V 0 2 6 7 . l l such payments shall be mailed to the address A

provided above in Section V, paragraph 4 ( b ) .

Penalties shall

accrue as provided above regardless of whether EPA or the State has notified the settling Defendants of t h e violition or made a demand for payment, but need only be paid upon demand.

~ l l
C 1

penalties shall begin to accrue on the day after complete performance is due or the day a violation occurs, and shall continue to accrue through the final day of the correction of the noncompliance or.completion of the activity. Nothing herein

shall prevent the simultaneous accrual of separate penalties for separate violations of this Consent Decree.
7,

If the United States or the State must bring an action

to enforce this Consent Decree, the Settling Defendants shall reimburse the United States and the State for all costs of such action, including but not limited to attorneys' fees.
8.

payments made under Paragraphs 5-7 shall be in addition

to any other remedies or sanct'ions available to the United States the State by virtue of Settling 1)efendants' failure to comply with the requirements of this Consent Ncree.
g,

The obligations of the Settling ~efendantsto pay

amounts owed the United States and the State under this consent' 12

Pl. Damages SJ App. 12

,

.

Case 1:06-cv-00141-LAS

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b

Decr& ere joint and

several.

In the event of the failure of any

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one or more Settling Defendants to make the payments required under this Consent Decree, the remaining Settling Defendants

I shall be responsible for such payments.
10.

1993, judgment and order rendered in U t e d S t a t e s of America, et

a 10 Action~),.con~titutesdeclaxatory judgment pursuant to Section
11

121 Defendants for Ongoing Response Costs.

gl I I

v-

-

The Parties acknowledge that the Court's September

26,

Oil

=Om-

er

a L , ' N o . 'Cv-91-,0589 -(Ex)

('Pending

113 (g)(2) of CERCLA in favor of Plaintiffs against the Settling The Parties further

acknowledge the rights of Plaintiffs to seek to recover these Ongoing Response Costs in the Pending Action and the rights of the Settling Defendants to challenge these costs.

VIII.
11.

COVENANT NOT TO SUE AND RESERVATION.OF RIGEfiS
S AND THE S
m

Except as provided in Paragraph

12, the United States and the State covenant not to sue Settling

Defendants under Section 107 of CERCLA or any other federal law or State law to recover Past United States Response Costs and Past State Response Costs paid pursuant to Section V of this

241 1
25

Consent Decree. receipt by

This covenant not to sue shall take effect upon

EPA

a i d the State of all payments required by Section

V (Reimbursement of Response Costs) and Section VI, Paragraphs 5
=his

2 6 $ (Interest on Late Payments) and 6 (Stipulated Penalty).

Pl. Damages SJ App. 13

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.

-cwenant not to sue is conditioned upon the complete ad---* n--'satisfactory performince by settling Defendants of their obligations under this Consent ~ecree. This covenant not to sue extends only to Settling Defendants and does not extend to any other person.
12.

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4 5
6

Resewatipa of Ricrhts. Except as provided in Paragraph

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11, nothing contained herein shall in any way limit or restrict

.a
9

10

111 12
13

authority of the States to I the response and enforcement either judicial or administrative, initiate appropriate I under Sections action, of and 9604, I 9606, and .or any other provision of law, against Settling
United
104, 106, 107
CERCLA, 42 U.S.C. 5 s

9607,

I

Defendants or against any other person or entity not a'party to this Consent Decree, and nothing contained herein shall in any way limit or restrict the response and enforcement authority of the State to initiate appropriate action, either judicial or administrative, under applicable provisions of federal and state law, against Settling Defendants or against any other person or entity not a party to this Decree. The covenant not to sue set

forth in Paragraph 11 does not pertain to any matters other than those expressly specified therein. The United States and State

i reserve, and this Consent Decree is without prejudice to, all
rights against Settling Defendants with respect to all other matters, including but not limited to: a. liability for failure of Settling Defendants to meet a

requirement of this Consent Decree; b. liability for damages for injury to, destruction of, or

loss of natural resources, and for the costs of any natural
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Pl. Damages SJ App. 14

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I 1 resource damage assessments;

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c.

liability for response costs that have been cr may be

--

incurred by any natural resource trustees;
d.
e.

criminal liability; liability for costs incurred or to be incurred by m y

federal or state agencies that are not within the definitions'qf "United States" or "Staten; f. liability for injunctive relief or administrative order
'

enforcement under Section 106 of CERCLA;
g.

liability for Ongoing Response Costs; liability arising from the.past, present .or future

h.

disposal, release or threat of release of a hazardous s&stance,
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1 pollutant, or contaminant beyond
i.

the Site;

liability arising from the future disposal, release, or'

151

threat of release of a hazardous substance, pollutant or

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I contaminant at the Site; and

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j.

liability for past, present or future violations of

federal or state law other than liability resolved by this Consent Decree.

13.

Covenant. Except for the claims described in paragraph

14(b) below, Settling Defendants covenant not to sue arid agree

not to assert any claims or causes of action-against the United States or the State with respect to this Consent Decree or Past United States Response Costs or Past State Response Costs paid pursuant to Section V of this Consent Decree, including, but not

Pl. Damages SJ App. 15

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.' y

1

2 1 from the Hazardova Substance Superfund (established pursuant to

I

limited to: (a) any direct or indirect claim for reimbureem-

,

# t h e Internal Revenue Code, 26 U.S.C.

§

9.507) through CERCLA

sections 106(b) (21, 111, 112, or 113, or any other provision of

law; or (b) any.claim against the United States or the State, or any department, agency, or instrumentality of the United States
of America or the State of California pursuant to CERCLA Sections 107 and 113 related to the Past United States Response Costs or Past State Response Costs paid pursuant to Section V of this Consent Decree. Nothing in this consent Decree shall be deemed

to constitute preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. 300.700 (dl .
14,
§

9611, or 40 C.F.R.

5

a. .

*

No final

judgment has been entered in this action from which an appeal as
of right may be taken and, by agreement of the parties, no such

final judgment shall be entered against the Settling Defendants
prior to the entry of judgment in the counterclaims asserted by these defendants in this action. At such time, all actions and

orders of the Court axe appealable as would otherwise be provided

by law; provided, however, that Settling Defendants agree to pay
the amounts required by Sections V and VI and to be bound by the covenants set forth in paragraph 13 above notwithstanding any outcome of that appeal, including but not limited to a judgment that Settling Defendants have no liability with respect to the McColl Site.

Pl. Damages SJ App. 16

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- .--.. __ -.--

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s. Reservation of

-or

'

.

Settling- ------m

3
4

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~efendantsreserve their rights to pursue the claims set forth in their a n e n t Counterclaims or related claims against the ~urrentlynamed counterdefendants, excluding the "United States" as defined in paragraph 3(0) of this ~ecree,in either this court

5
6

1 or any other court of appropriate jurisdiction and may nam= such
other agencies of the United States as shown by the evidence to be the appropriate successor agencies to the wartime instrumentalities of the United States, with the exception of the n~nitedStatesn as defined in paragraph 3(0) of this Decree.

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lltf These claims include claima related to the amounts paid by

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settling Defendan'ts under this Consent Decree.

This Decree shall

have no affect on, and the named counterdefendants excluding the

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States as defined in Decree reserve, all I unitedcounterdefendants havethisthe Pending Action. rights thee= named in

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15.

Nothing in this Consent Decree shall be construed to

create any rights in, or grant any cause of action to, any person not a party to this Consent Decree. The preceding sentence shall

not be construed to waive or nullify any rights that any person
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not a signatory to this Consent Decxee may have under applicable law. Each of the Parties expressly reserves any and all rights

(including, but not limited to, any right to contribution), defenses, claims, demands, and causes of action which each party
may have with respect to any matter, transaction, or occurrence

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relating in any way to the Site against any person not a party
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Pl. Damages SJ App. 17

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..

- .

2 -

1 .. .

1 hereto.
2

3
4

5
6 7
0

II
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that the Settling Defendants to seek such Iprotection fr~m~contribution are entitledas is provided by actions or claims
agree

II

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16.

With respect to claims f0.r contribution against

--T -- p

Settling Defendants in this Consent Decree, the Parties hereto

CERCLA Section 113 (f)(21, 4 2 U.S.C. 5 9613 ( f ) (2) for Past United
States Response Costs and Past State Response Costs paid pursuant Such protection is compliance with the
- .,

1 to Section V of this Consent Decree.
co~ditionedupon Settling Def endanta
17.

9

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1 requirements of this Consent ~ecree.

settling Defendants agree that with respect to any suit

or claim for contribution not currently pending brought by them for matters related to this Consent Decree they will notify EPA and DOJ and the State in writing no later than sixty (60) days prior to the initiation of such suit or claim. Settling

Defendants also agree that with respect to any suit or claim for contribution not currently pending brought against them for matters related to this -gnsent Decree they will notify in . writing EPA and DOJ and the State within ten (10) days of service of the complaint on them.

In addition, Settling Defendants shall

notify EPA and DO3 and the State within ten (10) days of'service
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or receipt of any Motion for Summary Judgment and within ten (10) days of xeceipt of any order from a.court setting a case for trial for matters related to this Consent Decree.

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18.

In any subsequent administrative or judicial proceeding

initiated by the United States or the State for injunctive relief, recovery of response costs, or other kppropriate relie'f
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Pl. Damages SJ App. 18