United States v. Montrose Chem. Corp. of California, Civil No. CV 90 3122-R
| Decision Date | 22 August 2012 |
| Docket Number | Civil No. CV 90 3122-R |
| Court | U.S. District Court — Central District of California |
| Parties | UNITED STATES OF AMERICA and STATE OF CALIFORNIA, Plaintiffs, v. MONTROSE CHEMICAL CORP. OF CALIFORNIA, et al., Defendants. |
Assistant Attorney General
Environment & Natural Resources Division
United States Department of Justice
THOMAS P. CARROLL
Senior Attorney
Environmental Enforcement Section
Environment & Natural Resources Division
United States Department of Justice
ANDRÉ BIROTTE JR.
United States Attorney
Central District of California
LEON W. WEIDMAN
Chief, Civil Division
JOANNE OSINOFF
Assistant United States Attorney
Attorneys for Plaintiff United States of America
(see next page for names of additional counsel)
PARTIAL CONSENT DECREE
(Construction of the Dual Site
Groundwater Operable Unit
Treatment System)
KAMALA D. HARRIS
Attorney General of the State of California
MARK BRECKLER
Chief Assistant Attorney General
SALLY MAGNANI
Senior Assistant Attorney General
BRIAN HEMBACHER
Supervising Deputy Attorney General
CATHERINE M. WIEMAN
Deputy Attorney General
Attorneys for Plaintiff State of California
VI. ESTABLISHMENT AND USE OF DUAL SITE TRUST FUND....................14
VII. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS.............19
VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS................24
IX. ACCESS AND INSTITUTIONAL CONTROLS..............................................26
X. REPORTING REQUIREMENTS......................................................................29
XI. EPA APPROVAL OF PLANS, REPORTS, AND OTHER DELIVERABLES31
XII. PROJECT COORDINATORS...........................................................................33
XIII. CERTIFICATION OF COMPLETION OF THE WORK.................................34
XIV. EMERGENCY RESPONSE..............................................................................36
XV. PAYMENT OF WORK OVERSIGHT COSTS................................................37
XVI. INDEMNIFICATION AND INSURANCE.......................................................39
XIX. STIPULATED PENALTIES..............................................................................48
XX. COVENANTS BY PLAINTIFFS......................................................................53
XXI. COVENANTS BY SETTLING DEFENDANTS..............................................57
XXII. EFFECT OF SETTLEMENT; CONTRIBUTION.............................................58
XXIII. ACCESS TO INFORMATION..........................................................................60
XXIV. RETENTION OF RECORDS............................................................................62
XXV. NOTICES AND SUBMISSIONS......................................................................64
XXVI. RETENTION OF JURISDICTION....................................................................66
XXX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT......................68
XXXI. SIGNATORIES/SERVICE................................................................................69
I. BACKGROUND
A. In December 1999, the United States and the State of California ("State"), on behalf of the California Department of Toxic Substances Control ("DTSC"), filed a Third Amended Complaint ("Complaint") in this matter, pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. §§ 9607 - 9675, seeking, inter alia, recovery of response costs in connection with releases of the pesticide DDT and other hazardous substances into the environment at and from the former manufacturing facility located at 20201 Normandie Avenue in Los Angeles, California, which was operated by Montrose Chemical Corporation of California ("Montrose Plant Property"). This Partial Consent Decree constitutes a partial resolution of the claims asserted in the Complaint, as described further below.
B. In the First Claim for Relief of the Complaint, the United States and DTSC asserted a claim under Section 107(a)(1-4)(C) of CERCLA, 42 U.S.C. § 9607(a)(1- 4)(C), for alleged natural resource damages relating to discharges of DDT through Los Angeles County's sanitation system and into the Pacific Ocean. The First Claim was settled in a Consent Decree entered by the Court on March 15, 2001.
C. In the Second Claim for Relief of the Complaint, the United States and DTSC asserted a claim for recovery of costs incurred and declaratory judgment for costs to be incurred by EPA and DTSC in response to the release or threatened release of hazardous substances into the environment at and/or from the Montrose Plant Property pursuant to Section 107(a)(1-4)(A) of CERCLA, 42 U.S.C. § 9607(a)(1-4)(A).
D. The Complaint specified that the Second Claim included costs related to contamination in ocean sediment at the Palos Verdes Shelf, as well as a number of specified water bodies. This portion of the Second Claim was also settled in the Consent Decree entered on March 15, 2001.
E. Pursuant to a Partial Consent Decree for Past Costs, entered by the Court on October 20, 2000, the United States and DTSC recovered $5.125 million as reimbursement and settlement of claims for specified past response costs. In addition, Montrose Chemical Corporation of California ("Montrose") had previously paid $1,354,612.37 to EPA as reimbursement of past response costs incurred by the United States with respect to portions of the Montrose Superfund Site.
F. Trial in this action commenced on October 17, 2000. On October 18, 2000, the Court took under submission the issue of liability of the Settling Defendants for certain areas to which Plaintiffs contended that hazardous substances had been released from the Montrose Plant Property. The Parties subsequently lodged and the Court entered two separate consent decrees for those areas. Specifically, on June 26, 2002, the Court entered a "Partial Consent Decree (relating to the Neighborhood Areas)," which resolved Settling Defendants' liability to the United States and DTSC for response costs related to the Neighborhood Areas, as defined in that agreement. On the same day, the Court entered a "Partial Consent Decree (relating to the Current Storm Water Pathway)," which resolved Settling Defendants' liability to the United States, DTSC, and the California Regional Water Quality Control Board, Los Angeles Region, for response costs relating to the Current Storm Water Pathway, as defined in that agreement.
G. This Court has already considered certain liability issues related to the groundwater contamination emanating from the Montrose Superfund Site and issued an Order on Summary Judgment (Order Granting United States' Motion for Partial Summary Judgment, April 24, 2000, as amended by Joint Stipulation and Order, July 18, 2000). In these Orders, the Court concluded that Montrose, Atkemix Thirty-Seven, Inc., and Aventis CropScience USA, Inc. are jointly and severally liable for all costs of removal or remedial action incurred by the United States or DTSC with respect to the Montrose Plant Property.
H. Addressing the Montrose Superfund Site groundwater contamination is complicated by the fact that EPA believes that the Montrose-related groundwater plume is commingled with contamination from a nearby site, the Del Amo Superfund Site. EPA therefore refers to the commingled contamination as the Dual Site Groundwater Operable Unit of the Montrose Chemical and Del Amo Superfund Sites, in Los Angeles County, California ("Dual Site"), and issued a joint Record of Decision ("ROD") for the Dual Site on March 31, 1999.
I. In accordance with the National Contingency Plan, 40 C.F.R. Part 300 (as amended) ("NCP") and Section 121(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F), EPA notified DTSC on February 4, 2010, of negotiations with potentially responsible parties ("PRPs") regarding the completion of the Remedial Design and implementation of the Remedial Action for the Dual Site. EPA has provided DTSC with an opportunity to participate in such negotiations and be a party to this Partial Consent Decree.
J. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA notified the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, and the U.S. Department of the Interior, Fish and Wildlife Service and National Park Service on November 17, 2010, of thesenegotiations and invited the trustee(s) to participate in the negotiation of this Partial Consent Decree.
K. The defendants that have entered into this Partial Consent Decree ("Settling Defendants") do not admit any liability to Plaintiffs arising out of the transactions or occurrences alleged in the...
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