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

Case 1:06-cv-00141-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SHELL OIL COMPANY, UNION OIL COMPANY OF CALIFORNIA, ATLANTIC RICHFIELD COMPANY, and TEXACO INC., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 06-CV-141 (Senior Judge Smith)

PLAINTIFFS' APPENDIX IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Michael W. Kirk Counsel of Record COOPER & KIRK, PLLC 1523 New Hampshire Ave, N.W. Washington, DC 20036 (202) 220-9600 (202) 220-9601 (fax) Of Counsel: Michael Weitzner COOPER & KIRK, PLLC 1523 New Hampshire Ave, N.W. Washington, D.C. 20036 (202) 220-9600 (202) 220-9601 (fax)

June 20, 2008

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Index to Appendix Partial Consent Decree Among Plaintiffs and Oil Company Defendants Regarding Certain Cost Claims and Order (12/9/1999) ...........................................1 Stipulated Facts of the Parties Relating to Pending Motions for Summary Judgment and Related Motions (¶ 323-24, 493-96) (6/23/1995) ............................33 Defendant's Response to Plaintiffs' Proposed Findings of Uncontroverted Fact (¶ 12, 23-24)(8/11/2006)..................................................................................38 Final Judgment Pursuant to Rule 54(b) (10/13/1999) .............................................41 Second Five-Year Review Report for McColl Superfund Site (pgs. 14-15) (9/25/2007)...............................................................................................................49 Declaration of Edmond Bourke & Exhibit A (6/20/2008) ......................................52 Summary of Interest Calculation on Pre-1998 Stipulated Costs .............................58

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I

LOIS J, SCHIFFER Acting Assistant Attorney General Environment and Natural Resources Di

WILLIAM A. WEINISCHKE KATHRYN SCHMIDT

Trial Attorneys ~nvironmentalEnforcement Section Environment and Natural Reeources ~i United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044
(202) 51414592 (202) 514-3906

NORA M. MANELLA United States Attorney Central District of California LEON W. WEIDMAN Chief, Civil Division PETER HSIAO Assietant United States Attorney Room 7516 Federal Building 300 North Los Angeles Street Los Angeles, California 9001.2 (213) 894-6117
I

16a Attorneys for Plaintiff United States of America

.. . ...

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, et al.,

Plaintiffs,
v.

SXELL OIL COMPANY, et al.,

Defendants.
24
AND RELATED CLAIMS

1 1 1 CASE No. CV 91-0589 RJK(Bx) 1 1 1 . 1 PARTIAL CONSENT DECREE AMONG 1 . PLAINTIFFS AND' Of L COMPANY 1 DEFENDANTS REGARDING CERTAIN 1 COST CLAIMS A N D 1ORDER -1 1

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o

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26

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. .. a 4 COPY B Y S A
Pl. Damages SJ App. 1

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DANIEL E. LmGREN
A t t o r n e y General of the State of

California
1

RODERICK WALSTON Chief Assistant Attorney General THEODORA BERGER Assistant Attorney General TIMOTHY R PATTERSON Deputy Attorney General 1 1 0 West A Street, Suite 1100
P.O.
Box 85266

.

San Diego, California
( 6 1 9 ) 645-2013

92186-5266

Attorneys

for Plaintiff State of California

Pl. Damages SJ App. 2

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FAILURE TO COMPLY W I T H REQMREMENTS
O F . . . . . . . . . . . . . . . 1 1

COVENANT

NOT TO SUE AND RESERVATION OF RIGETS

STATE..
COVENANT AND RESERVATION OF RIGHTS
DEP-.

. .. . . . . .... .

13
15

......

,

Pl. Damages SJ App. 3

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I* E!xmwmQ
A. The United States of America, on behalf of the

Administrator of the United States Environmental Protection Agency, and the State of California,

m.California

Department of Health Sentices, Hazardous Substance Account,'and Hazardous Substance Cleanup Fund, filed a complaint in this matter pursuant to Sections 107 and 113 (g)( 2 ) of the comprehensive Environmental Response, Compen~ation, and Liability
~ c of 1980, 42 U.S.C. t
§§

9607 and 9613(g) (21, as amended

(nCERCU") B.

.

The complaint seeks, among other relief, reimbursement

of response costs incurred, and a declaration of liability for response costs.to be incurred, by the United States and State for response actions in connection with the release or threatened release of hazardous substances at the McColl Superfund Site in Fullerton, Orange County, California ("the Siten)
C.

.

The release or threatened release of hazardous

substances at or from the Site has caused the united States and
the State to incur response costs as defined by Section 101(25)

of CERCLA, 42 U.S.C.
D.

§

9601(25).

The United States, the State and the Settling

Defendants agree and this Court, by entering this Decree, finds that settlement of this matter will avoid further prolonged and complicated litigation and that this Consent Decree is fair, reasonable, and in the public interest.
THEREFORE, with the consent of.the Parties to this Decree,

it is ORDERED, AD-GED,
.

AND DECREED:

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0348
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4

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'I1
1 I
1

1.

This Court has jurisdiction over the subject matter of

tLia action pureuant to 28 U.S.C. 5 5 1331 and 1345, and 42 U.S.C.
$5 5 6 0 7 and 9613 (b)

.

This Court alec has personal jurisdiction Solely for the purposes of this

the Settling Defendants.

Decree. the Settling Defendants waive all objections and that they may have to jurisdiction of the Court or to in this District and shall not challenge the entry of this

Coneent Decree or this Court's jurisdiction to enter and enforce
t his Consent Decree.

l4 l5

l6
l7

B

I

I

I i

2.

This Consent Decree is binding upon the United States

and the State, and upon the settling Defendants and their

su~c.-essors assigns. Any change in ownership or corporate or and'

Ot&r

legal status, including but not limited to any transfer of
or real or personal property, shall in no w a y alter the

.sta?:s

o r responsibil'it5es of the Settling Defendants wider this
Decree.

IV.

DEFINITIONS

1 231
22
24
26

2.

Unless otherwise expressly provided herein, terms used Consent Decree which are defined in CERCLA or in

in s a s * d

I -

' ~ r z i o n spromulgated under CERCLA shall have the meaning
to them in CERCLR or in such regulations.
Whenever

I

t e - ~ - listed below are used in this Consent Decree the following

shall apply:
28

5

0349
Pl. Damages SJ App. 5

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shall i a.\ 'I Response, Compensation, mean'the Comprehensive Environmental 2 and Liability Act of 1980, as amended,
naRCLAn

6
7
8

I =I
3
4

I U.S.C.

42

§§

9601 & ESS-

b .

"Consent Decreew shall mean this Decree. "Dayn shall mean a calendar day.

c.

In computing any

I 1

1 fall on a Saturday, Sunday, or federal holiday,
d.

I period of time under this Consent Decree, when the last day would
the period shall
run until the close of business of the next working day.
"EPASt shall mean the United States Environmental

protection Agency and any successor departments or agencies of

the United States.

2% :L

e.

"Interest," in accordance with 42 U.S.C. 5 9607(a),

5

.--. ,,,,, ..~ , -..! .:.
..?W
a .

shall mean interest at the rate specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26 of the f7.s. code, compounded annually. f. "Ongoing Response Costsn shall

.: , & & ...$. .-, ...V' :@ 7 ;
. . .4 : . - ., > i>.2:>
3;'.

but not limited to direct and indirect States and the State have incurred in that were paid after the dates set for "Past United States Response costsn and "Past State Ree Costs." Costs incurred before t

definitions of "Past United States Res State Response Costsn but paid after t Response Costs. Interest on the am

Section V of this Decree, from J payment, is en "Ongoing Response Coat ' *

'

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.

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g.

"paragraphw shall mean a portion of this Consent Decree

identified by an arabic numeral.

h .

rnpartiesn shall mean the United States, the State of

California and each and every Settling Defendant.

i,

rnPast State Response CostsR shall mean all costs,

including but not limited to direct and indirect costa, that the State has incurred in connection with the Site and paid as follows:
(1) California Department of Health Services costs

incurred and paid through September 30 i ,1990;'and ( 2

California

Department of Justice costs incurred and paid through June 30,
1991, plus accrued interest on all costs described in this

paragraph through July 31, 1993.

'

j.

"Past United States Response Costsn shall mean all

costs, including but not limited to direct,and indirect costs, that the United states has incurred in connection.with the Site and paid through June 30, 1990, plus costs incurred and paid to contractors through September 30, 1990, in circumstances where these latter costs were paid.in part with federal funds and in part with state funds, plus accrued interest on all costs described in this paragraph through July 31, 1993.

k.

"Sectionn shall mean a portion of this Consent Decree

identified by a roman numeral.

1.

settling Defendantsn shall mean Shell Oil Company,

Union Oil Company of California, Atlantic ~ichfieldCompany and Texaco, Inc.

m. ."Siten shall mean the McColl Superfund site located in
Fullerton, Orange County, California, encompassing approximately
7

0351
.

. -

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twenty-two acres and the areal extent of contamination therefrom.

n.

"Staten shall mean the State of California,
\

ex.
.

california Department of Health Sejnrices, Hazardous Substance
Account, and Hazardous Substance Cleanup Fund.
0.

"United Statesn shall mean the United States of America,

.

acting on behalf of EPA and the United States Department of Justice ("DOJn) in its capacity on behalf of EPA.

V.
4.

t-,

OF
e-S

a.

- a f t - d

ms-.

Within

thirty (30) days of entry of thie Consent Decree, the Settling Defendants shall pay to EPA $13,248,000 for Past United States Response Costs, by one Electronic Funds Transfer (WEFTW) the to
U.S. Department of Justice lockbox bank, referencing the McColl

Superfund Site CERCLA Number 9-04;
,

0

S e l Co.. et gL CV 91-0589 RJX; DOJ number 90-11-2h l
and U.S.A.-0. file number 91-00-586. Payment shall be made in

3A;

accordance with instructions provided by Plaintiffs to the Settling Defendants upon execution of the Consent Decree.
~ n y

EFT received at the DOJ lockbox bank after 11:OO A.M. Eastern

Time will be credited on the next business day.

At the time of

payment, Settling Defendants shall simultaneously send written notice of payment and a copy of any transmittal documentation to
.EPA and DOJ in accordance with Section X I (Notices and

Submissions)
b.
(SO)

.
State

~avmentof Past

Eespmse Cog-.

Within thirty

days of the entry of this Consent Decree, Settling
8

Pl. Damages SJ App. 8

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Response Costs, in the form of one certified check or cashier's

check.

The check shall be made payable to the California

Department of Toxic.Substances Control and shall reference
S t a t e of f. -

v . Shell Q i l Co.. et

L, U.S. Dist.

Ct.

No. CV-91-0589-RJK; DTSC Project No. 400093; and C a l . DOJ Docket
NO. 49006-430-SDB9CV0267. The Settling Defendants shall forward the check to:
Department of Toxics Substances Control Accounting/Cashiers 400 P Street, 4th Floor P.O. Box 806 Sacramento, CA 95812-0806

c.

o n

of C - s mt

P a ~ d Costs to

.

The

parties acknowledge that the amounts paid under this Decree are less than Plaintiffs' current claim. Because Plaintiffs will

seek to recover the remaining portion of their claim from
entities other than the Settling Defendants, Plaintiffs are applying the amounts paid under this Decree to costs other than the following costs:
(i)

r a c t o r c o s t a : Acurex Corporation (EPA- , Contract C1)

NO. 68-03-3267 ($58,991.18); Acurex Corporation (EPA-C2),
Contract No. 68-C9-0038 ($80,000.00); Bechtel Environmental, Inc. (EPA-c4), Contract No. 68-W9-0060 ($62,529.20); CH2M Rill (EPAC 6 ) , Contract

No. 68-01-7251 ($2,795,054.83); CH2M Hill (EPA-C7),

Contract No. 68-W9-0031 ($58,239.73); Ecology and Environment, Inc. (EPA-C9), Contract No. 68-01-7347 ($219,303.15); Ecology and Environment, Inc. (EPA-ClO), Contract No. 68-01-7368 ($120,447.95); Environmental Emergency Services Co. (EPA-Cll),
9

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I contract NO. 68-01-6860 ($18,895.57); ICF (EPA-C121, Contract No.
68-01-7456 ($22,315.25); PEI Associates,Inc. (EPA-C131, Contract
I NO. 68-02-4284 ($76,912.98); Reidel Environmental Services, Inc.

, 942.05) ; Roy F. Weston (EPA-C~S) Contract No. 68-01-7334 ($219;
( E P A - c ~, ) ~ Contract No. 6803-3482 ($3,038.72); Dean's Security professionals (CA-C4), Contract No. 88-TO224 ($126,277.54); ~ c o l o g yand Environment, Inc. (CA-C5), Contract No. 84-84544, 34-6

($12,005.40); Ecology and Environment, Inc. (CA-C6), Contract

NO. 84-84544, 3-4-7 ($1,806.47); Ecology and Environment, Inc.
( C A - ~ 7 ) Contract No. 84-84544, 3-4-10 ($10,817.45); National ,

Rent-A-Fence Co., Inc. (CA-CB), Contract No. 80-64394 ($3,539.40); National Rent-A-Fence Co., Inc. (CA-C9), Contract

NO. 81-77984 ($3,099.65); National Rent-A-Fence Co., Inc. (CA~ 1 0 Contract No. 82-79924 ($2,999.65); Orange Coast Fence ) ~ company (CA-Cll), Contract No. 87-TO092 ($2,025.00); Tetra Tech,
{ C A - ~ 2 6 , Contract No. 84-84543, 3-3-15 ($16,375.67) ; and )

Western security Services (CA-C32), Contract No. 86-TO005 ($136,643.47);

(ii) Q+S.

ERA

1 a 1

: -

Expenditures from

the following cost categories for the time period of October 1, 1987 through June 30, 1990: Regional payroll expenditures (EPA-

LI), Headquarters payroll expenditures (EPA-L2), and Regional

indirect costs (EPA-I 1) (Total of $1,073,448.00) ;
(iii) U.S. D e of J u ~ t i c ecosta: (EPA-C8), costs

incurred up through June 30, 1990 ($17,912.65); (iv? state of

a 1

_Casts:

Expenditures from the following cost 10

0354
Pl. Damages SJ App. 10