City of Colton v. American Promotional Events Inc et al, No. 5:2009cv01864 - Document 1822 (C.D. Cal. 2013)

Court Description: CONSENT DECREE by Judge Philip S. Gutierrez Re: KTI Consent Decree. FINAL JUDGMENT. The United States and Settling Defendants agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest. The Court finds that there is no just reason for delay of entry of this Consent Decree, and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. (see document for further details) Related to: MOTION for Settlement Approval of Proposed Consent Decrees 1807 . (bm)

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City of Colton v. American Promotional Events Inc et al Doc. 1822 E-FILED: 07-02-2013 Link #1807 1 2 3 4 5 6 7 8 9 10 IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division United States Department of Justice DEBORAH A. GITIN (CA State Bar #284947) Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, California 94105 Telephone: (415) 744-6488 Facsimile: (415) 744-6476 deborah.gitin@usdoj.gov 11 12 Attorneys for Plaintiff, UNITED STATES OF AMERICA 13 14 15 16 17 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION CITY OF COLTON, a California municipal corporation, Plaintiff, 18 19 v. 20 21 22 23 24 AMERICAN PROMOTIONAL EVENTS, INC., et al. CASE NO. ED CV 09-01864 PSG (SSx) [Consolidated with Case Nos. CV 096630 PSG (SSx), CV 09-06632 PSG (SSx), CV 09-07501 PSG (SSx), CV 0907508 PSG (SSx), CV 10-824 PSG (SSx) and CV 05-01479 PSG (SSx)] CONSENT DECREE Defendants. AND CONSOLIDATED ACTIONS 25 26 27 28 Consent Decree Dockets.Justia.com 1 TABLE OF CONTENTS 2 3 I. BACKGROUND .......................................................................................... 1 4 II. JURISDICTION ........................................................................................... 2 5 III. PARTIES BOUND ....................................................................................... 2 6 IV. DEFINITIONS ............................................................................................. 2 7 V. STATEMENT OF PURPOSE...................................................................... 8 8 VI. SETTLEMENT OF RESPONSE COSTS.................................................... 8 9 VII. ACCESS AND INSTITUTIONAL CONTROLS...................................... 10 10 VIII. NOTICE TO SUCCESSORS-IN-TITLE AND TRANSFERS OF REAL 11 PROPERTY ............................................................................................. 14 12 IX. ACCESS TO INFORMATION.................................................................. 15 13 X. RETENTION OF RECORDS .................................................................... 17 14 XI. DISPUTE RESOLUTION………………………………………………...19 15 XII. FAILURE TO COMPLY WITH CONSENT DECREE 16 17 18 19 OBLIGATIONS ....................................................................................... 23 XIII. COVENANTS AND RESERVATIONS OF RIGHTS BY PLAINTIFFS ........................................................................................... 25 XIV. COVENANTS AND RESERVATIONS OF RIGHTS BY SETTLING 20 DEFENDANTS AND SETTLING FEDERAL AGENCIES ................. 28 21 XV. EFFECT OF SETTLEMENT/CONTRIBUTION ..................................... 33 22 XVI. NOTICES AND SUBMISSIONS .............................................................. 35 23 XVII. RETENTION OF JURISDICTION ........................................................... 36 24 XVIII. INTEGRATION/APPENDICES ............................................................. 36 25 XVIX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ........... 37 26 XX. FINAL JUDGMENT .................................................................................. 37 27 28 Consent Decree i 1 I. BACKGROUND 2 A. 3 Administrator of the United States Environmental Protection Agency (“EPA”), 4 filed a complaint in this matter pursuant to Sections 107 of the Comprehensive 5 Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 6 § 9607 (“CERCLA”), and Section 7003 of the Resource Conservation and 7 8 9 10 11 12 The United States of America (“United States”), on behalf of the Recovery Act (“RCRA”), 42 U.S.C. § 6973, seeking injunctive relief and reimbursement of response costs incurred by EPA and the United States Department of Justice for response actions at the B.F. Goodrich Superfund Site in Rialto, California. Other parties have also filed CERCLA and/or state law claims in cases consolidated with the United States’ case (collectively, the “Consolidated 13 Federal Action”). 14 B. 15 and Rialto Concrete Products, Inc. (collectively, “Settling Defendants” as defined 16 in Section IV (Definitions)), are entities which are named as defendants in one or 17 more of the complaints referenced in Paragraph I.A. Settling Defendants do not 18 admit, and specifically deny: (1) any liability arising out of the transactions or 19 occurrences alleged in the claims or deemed by the Court in the Consolidated 20 Federal Action; and (2) that the release or threatened release of Waste Material at 21 or from the B.F. Goodrich Superfund Site or the RABSP (as defined in Section IV 22 (Definitions)) constitutes, contributed to, or caused an imminent or substantial 23 endangerment to the public health or welfare or the environment. 24 C. 25 any EPA existing or future removal or remedial decision and the actions to be 26 performed by Settling Defendants under this Consent Decree shall constitute a 27 response action taken or ordered by the President for which judicial review shall be 28 limited to the administrative record. Defendants Ken Thompson, Inc.; KTI, Incorporated; Pipeline Carriers, Inc.; Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j), Consent Decree 1 1 NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED: 2 3 4 5 6 7 II. 1. JURISDICTION This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1345; 42 U.S.C. §§ 6973(a), 9607, and 9613(b); and also has personal jurisdiction over Settling Defendants. Solely for the purposes of this Consent Decree and the underlying complaints, Settling 8 Defendants waive all objections and defenses that they may have to jurisdiction of 9 the Court or to venue in this District. Settling Defendants shall not challenge entry 10 or the terms of this Consent Decree or this Court’s jurisdiction to enter and enforce 11 this Consent Decree. III. 12 13 2. PARTIES BOUND This Consent Decree is binding upon the United States and upon 14 Settling Defendants and their heirs, successors, and assigns. Any change in 15 ownership or corporate or other legal status, including, but not limited to, any 16 17 transfer of assets or real or personal property, shall in no way alter the status or responsibilities of Settling Defendants under this Consent Decree. 18 IV. 19 20 3. DEFINITIONS Unless otherwise expressly provided in this Consent Decree, terms 21 used in this Consent Decree that are defined in CERCLA or in regulations 22 promulgated under CERCLA shall have the meaning assigned to them in CERCLA 23 or in such regulations. Whenever terms listed below are used in this Consent 24 Decree or in any appendix attached hereto, the following definitions shall apply: 25 “160-Acre Area” shall mean the area located in San Bernardino County that 26 is bounded by West Casa Grande Drive on the north, Locust Avenue on the east, 27 Alder Avenue on the west, and an extension of Summit Avenue on the south. The 28 160-Acre Area is depicted generally on the map included in Appendix A. Consent Decree 2 1 “2010 Record of Decision” or “2010 ROD” shall mean the document 2 entitled “USEPA Superfund Interim Action Record of Decision” relating to the 3 Source Area Operable Unit, B.F. Goodrich Superfund Site, San Bernardino 4 County, CA, EPA ID: CAN000905945, dated September 30, 2010, signed by the 5 Assistant Director, Superfund Division, EPA Region 9, and all attachments thereto. 6 7 8 9 10 11 12 13 14 “Basin Contaminants” shall mean any type of perchlorate; trichloroethylene (“TCE”); carbon tetrachloride; chloroform; or methylene chloride; including any breakdown or “daughter” products of the foregoing. “B.F. Goodrich Superfund Site” shall mean the B.F. Goodrich Superfund Site in San Bernardino County, California, which includes the 160-Acre Area and all areas where contamination from the 160-Acre Area otherwise comes to be located. “B.F. Goodrich Special Account” shall mean the special account, within the 15 EPA Hazardous Substances Superfund, established for the B.F. Goodrich 16 Superfund Site (Site/Spill ID Number 09JW) by EPA pursuant to Section 17 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3). 18 19 “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675. 20 “Certification of Completion of the Final Remedial Action” shall mean the 21 certification of completion of the remedial action associated with the Final Record 22 of Decision for the B.F. Goodrich Superfund Site. 23 “Consent Decree” shall mean this Consent Decree and all appendices 24 attached hereto. In the event of conflict between this Consent Decree and any 25 appendix, this Consent Decree shall control. 26 27 28 “Consolidated Federal Action” shall mean City of Colton v. American Promotional Events, Inc., et al., Case No. ED CV 09-01864 PSG (SSx); Goodrich Corporation v. Chung Ming Wong, et al., Case No. CV 09-6630 PSG (SSx); Consent Decree 3 1 County of San Bernardino, et al., v. Tung Chun Co., et al., Case No. CV 09-06632 2 PSG (SSx); City of Rialto and Rialto Utility Authority v. United States Department 3 of Defense, et al., Case No. CV 09-7501 PSG (SSx); and Emhart Industries, Inc. v. 4 American Promotional Events, Inc.-West, et al., Case No. CV 09-07508 PSG 5 (SSx), all of which were consolidated pursuant to an order issued on January 20, 6 2010; and United States of America v. Goodrich Corporation, et al., Case No. 10- 7 8 9 10 11 12 13 14 00824 PSG (SSx), which was consolidated with the previously consolidated cases pursuant to an order issued on June 3, 2010; and City of Colton v. American Promotional Events, Inc., et al., Case No. ED CV 05-01479 PSG (SSx). “County” shall mean the County of San Bernardino and any of its present, former, or future subdivisions, departments, commissions, agencies, or instrumentalities. “County Property” shall mean the property known as the Mid Valley 15 Sanitary Landfill, which is currently owned by the County of San Bernardino, 16 including those areas currently leased to Robertson’s Ready Mix. The County 17 Property is bounded by Summit Avenue on the north, generally by Alder Avenue 18 on the east (until Alder Avenue terminates at or within the Robertson’s Ready Mix 19 leasehold), generally by the municipal boundaries of the Cities of Fontana and 20 Rialto on the west except for a strip of land located in the City of Fontana, and by 21 Casmalia Street on the south. The County Property is depicted generally on the 22 map included in Appendix A. 23 “Day” or “day” shall mean a calendar day unless expressly stated to be a 24 working day. The term “working day” shall mean a day other than a Saturday, 25 Sunday, or federal holiday. In computing any period of time under this Consent 26 27 28 Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day. “DOJ” shall mean the United States Department of Justice and its successor Consent Decree 4 1 departments, agencies, or instrumentalities. 2 “Effective Date” shall mean the date upon which this Consent Decree is 3 entered by the District Court as recorded on the District Court docket, or, if the 4 District Court instead issues an order approving the Consent Decree, the date such 5 order is recorded on the District Court docket, whichever occurs first. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 “EPA” shall mean the United States Environmental Protection Agency and its successor departments, agencies, or instrumentalities. “EPA Hazardous Substance Superfund” shall mean the Hazardous Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507. “Federal Contract” means any prime contract, subcontract, or any other agreement transferring value between a party to this Consent Decree and a department, agency, or instrumentality of the United States, including but not limited to contracts for goods or services, grants, and cooperative agreements. The term “Federal Contract” does not include this Consent Decree. “Final Record of Decision” shall mean the final Record of Decision (and all attachments) for the B.F. Goodrich Superfund Site that will be signed by EPA in the future, and after lodging of this Consent Decree. “Final Remedial Action” shall mean activities associated with implementing the Final Record of Decision. “Further Settlor” shall mean any party to the Consolidated Federal Action 22 and not a signatory to this Consent Decree, with whom the United States, on behalf 23 of EPA, reaches or has reached a final settlement. 24 “Interest” shall mean interest at the rate specified for interest on investments 25 of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, 26 compounded annually on October 1 of each year, in accordance with 42 U.S.C. 27 § 9607(a). The applicable rate of interest shall be the rate in effect at the time the 28 interest accrues. The rate of interest is subject to change on October 1 of each Consent Decree 5 1 year. 2 “Institutional Controls” or “ICs” shall mean Proprietary Controls and state 3 or local laws, regulations, ordinances, zoning restrictions, or other governmental 4 controls or notices that: (a) limit land, water, and/or resource use to minimize the 5 potential for human exposure to Waste Material at or in connection with the Site; 6 (b) limit land, water, and/or resource use to implement, ensure non-interference 7 with, or ensure the protectiveness of the remedial action; and/or (c) provide 8 information intended to modify or guide human behavior at or in connection with 9 the Site. 10 “KTI Property” shall mean those parcels of the land located in the 160-Acre 11 Area in the City of Rialto, County of San Bernardino, State of California with the 12 Assessor’s Parcel Numbers of APN 0239-192-05-0000, APN 0239-192-11-0000, 13 APN 0239-192-19-0000, APN 0239-192-09-0000, and APN 0239-192-20-0000, as 14 more specifically described and depicted in Appendix B to this Consent Decree. 15 “Paragraph” shall mean a portion of this Consent Decree identified by an 16 Arabic numeral or an upper or lower case letter. 17 “Parties” shall mean the United States and the Settling Defendants. 18 “Plaintiffs” shall mean the United States, on behalf of EPA. 19 “Proprietary Controls” shall mean easements or covenants running with the 20 21 22 23 24 25 land that: (a) limit land, water, or resource use and/or provide access rights and (b) are created pursuant to common law or statutory law by an instrument that is recorded by the owner in the appropriate land records office. “RABSP” shall mean the parcel of land originally containing the former Rialto Ammunition Backup Storage Point, located in San Bernardino County, 26 California. The 160-Acre Area is within the geographic area of the RABSP. The 27 RABSP is depicted generally on the map included in Appendix A. 28 “RABSP Site” shall mean the RABSP and all areas where contamination Consent Decree 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 from the RABSP otherwise comes to be located. “RCRA” shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901 et seq. (also known as the Resource Conservation and Recovery Act). “Section” shall mean a portion of this Consent Decree identified by a Roman numeral. “Settling Defendants” shall mean Ken Thompson, Inc.; KTI, Incorporated; Pipeline Carriers, Inc.; and Rialto Concrete Products, Inc. and includes past and current officers and employees of these entities acting in the course and scope of their employment, as well as successors and assigns of these entities. “Settling Federal Agencies” shall mean any federal agency, department, or instrumentality named or alleged to be liable for contamination in the Consolidated Federal Action, including but not limited to the United States Army, the Department of the Navy, the United States Air Force, the United States Department of Defense, the Farm Credit Administration, the United States Customs and Border Protection, the National Aeronautics and Space Administration, the United States Department of Energy, Lawrence Livermore National Laboratory, the United States Forest Service, and any other federal entity that is alleged to have transported, disposed of, or released any Waste Material within the area encompassed by the RABSP Area, as depicted in Appendix A, and any of their predecessors or successors. “State” shall mean the State of California. “Stonehurst Property” shall mean the approximate 5-acre property in the 24 County of San Bernardino, County APNs 1133-07-105, 1133-07-106, and 1133- 25 07-107, collectively, located at 2298 West Stonehurst Drive, Rialto, California. 26 The Stonehurst Property is depicted generally on the map included in Appendix A. 27 28 Consent Decree 7 1 “Transfer” shall mean shall mean to sell, assign, convey, lease, mortgage, or 2 grant a security interest in, or where used as a noun, a sale, assignment, 3 conveyance, or other disposition of any interest by operation of law or otherwise. 4 “United States” shall mean the United States of America and each 5 department, agency, and instrumentality of the United States, specifically including 6 EPA and the Settling Federal Agencies. 7 8 9 10 11 12 13 “Waste Material” shall mean: (a) any hazardous substance under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (b) any pollutant or contaminant under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (c) any “solid waste” under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); and (4) any “hazardous waste” under California law, including California Health & Safety Code §§ 25100 et seq. 14 “West Side Area” shall mean the County Property and the Stonehurst 15 Property. The West Side Area is depicted generally on the map included in 16 Appendix A. 17 “West Side Site” shall mean the West Side Area and all areas where TCE 18 and perchlorate contamination from the West Side Area otherwise comes to be 19 located. 20 21 22 23 V. 4. STATEMENT OF PURPOSE By entering into this Consent Decree, the mutual objectives of the Parties are to avoid difficult and prolonged litigation and resolve claims as set forth herein. 24 VI. 25 SETTLEMENT OF RESPONSE COSTS 26 5. 27 Settling Defendants shall pay two million eight hundred thousand dollars 28 Payments ($2,800,000) to the United States on behalf of EPA in three payments, on the Consent Decree 8 1 following schedule and in accordance with payment instructions as directed in 2 Paragraph 6, below. The total amount of each payment to be paid by Settling 3 Defendants pursuant to this Section shall be deposited by EPA in the B.F. 4 Goodrich Superfund Site Special Account (Site/Spill ID Number 09JW) to be 5 retained and used to conduct or finance response actions at or in connection with 6 the Site, which may include transferring all or some of those payments to a 7 8 disbursement special account associated with the Final Remedial Action, and/or to be transferred by EPA to the EPA Hazardous Substance Superfund. 9 a. 10 11 12 Within ten (10) working days after the Effective Date, or ten (10) working days after receiving payment instructions from the United States on behalf of EPA, whichever is later, Settling Defendants shall pay nine hundred 13 thirty-three thousand three hundred thirty-four dollars ($933,334) to the United 14 States. 15 b. Within one (1) year after the Effective Date, Settling 16 Defendants shall pay to the United States nine hundred thirty-three thousand three 17 hundred thirty-three dollars ($933,333), plus Interest on that amount calculated 18 from the 30th Day after the Effective Date until the date of the payment. The 19 United States shall provide Settling Defendants with information on the amount of 20 Interest due thirty (30) Days before the due date for this payment. 21 c. Within two (2) years after the Effective Date, Settling 22 Defendants shall pay to the United States nine hundred thirty-three thousand three 23 hundred thirty-three dollars ($933,333), plus Interest on that amount calculated 24 from the 30th Day after the Effective Date until the date of the payment. The 25 United States shall provide Settling Defendants with information on the amount of 26 Interest due thirty (30) Days before the due date for this payment. 27 28 The payments to be made by Settling Defendants set forth above are for Consent Decree 9 1 reimbursement and/or payment of response costs. 2 6. 3 Payment Instructions a. Any payments due the United States on behalf of EPA pursuant 4 to Section VI (Settlement of Response Costs) shall be made in accordance with 5 instructions provided to such Settling Defendant(s) by EPA or the Financial 6 Litigation Unit (“FLU”) of the United States Attorney’s Office for the Central 7 District of California. 8 9 10 11 12 13 b. At the time of each installment payment required by Paragraph 5, Settling Defendants shall send notice to DOJ and EPA that payment has been made in accordance with Section XVI (Notices and Submissions), and to the EPA Cincinnati Finance Office by email at acctsreceivable.cinwd@epa.gov, or by mail to: EPA Cincinnati Finance Office 26 Martin Luther King Drive Cincinnati, Ohio 45268 14 15 16 17 Such notice shall reference the Site/Spill ID Number 09JW, and DOJ Case Number 90-11-2-09952. c. 18 The total amount to be paid to the United States on behalf of 19 EPA pursuant to Section VI (Settlement of Response Costs) shall be used to 20 conduct or finance response actions at or in connection with the Site, which may 21 include transferring all or some of those payments to a disbursement special 22 account associated with the Final Remedial Action, and/or shall be transferred by 23 EPA to the EPA Hazardous Substance Superfund. 24 VII. ACCESS AND INSTITUTIONAL CONTROLS 25 26 27 28 7. Settling Defendants shall: a. commencing on the date of lodging of this Consent Decree, and at no charge, provide the United States and its representatives (including EPA and Consent Decree 10 1 its contractors), and any PRPs conducting response actions at the Site under EPA 2 oversight (including, without limitation, the Settling Work Defendant in any other 3 consent decree the United States on behalf of EPA has entered into or shall enter 4 into the Consolidated Federal Action, as well as their agents and contractors), with 5 access at all reasonable times, and, where feasible, with three (3) working days’ 6 notice, to the KTI Property for the purpose of conducting any response actions 7 related to the Site including, but not limited to, the following activities: 8 9 10 (1) Monitoring of investigation, removal, remedial, or other response actions at the Site; (2) Verifying any data or information submitted to the (3) Conducting investigations relating to contamination at or 15 (4) Obtaining samples; 16 (5) Assessing the need for, planning, or implementing 11 12 United States; 13 14 17 near the Site; additional response actions at or near the Site; (6) 18 Inspecting and copying records, operating logs, contracts, 19 or other documents maintained or generated by Settling Defendants or their agents, 20 consistent with Section IX (Access to Information); (7) 21 22 Assessing Settling Defendants’ compliance with this Consent Decree; 23 (8) Determining whether the Site, the KTI Property, or other 24 property is being used in a manner that is prohibited or restricted, or that may need 25 to be prohibited or restricted, by or pursuant to this Consent Decree; 26 27 28 (9) (a) Implementing removal or remedial actions as selected by EPA, including but not limited to capping of the KTI Property or Site, or any portion(s) thereof, and implementing, monitoring, maintaining, reporting on, and Consent Decree 11 1 enforcing any Institutional Controls; (b) installing, monitoring, and maintaining 2 liquid, groundwater, soil gas and other wells or probes; and (c)installing, 3 monitoring, and operating any monitoring and extraction system, including liquids 4 and gas extraction systems. 5 b. 6 7 8 9 10 11 12 commencing on the date of lodging of this Consent Decree, refrain from using the KTI Property in any manner that would interfere with or adversely affect the implementation, integrity, or protectiveness of the remedial measures implemented pursuant to the 2010 ROD. Also commencing on the date of lodging of this Consent Decree, Settling Defendants shall provide EPA thirty (30) Days’ notice if Settling Defendants intend to disturb subsurface soils or sediments six (6) or more inches below ground surface in the portions of the KTI 13 Property identified in Appendix C. If, in the future, EPA issues any removal or 14 remedial decision document(s) related to the Site, Settling Defendants hereby agree 15 to refrain from using the KTI Property, or any portion thereof specifically 16 identified in any future removal or remedial decision, in any manner that would 17 interfere with or adversely affect the implementation, integrity, or protectiveness of 18 those future measures to be implemented at the Site. Settling Defendants also 19 hereby agree to implement any Institutional Control(s), including but not limited to 20 land or water use restrictions, that may be selected by EPA for the Site or the KTI 21 Property, or any portion(s) thereof, in any removal or remedial action affecting the 22 KTI Property, or any portion(s) thereof. 23 c. execute and record in the appropriate land records office 24 Proprietary Controls that: (i) grant a right of access to conduct any activity 25 regarding the Consent Decree and any future removal or remedial action 26 concerning the Site including, but not limited to, those activities listed in Paragraph 27 7.a; and (ii) grant the right to enforce any land/water use restrictions required by 28 Paragraph 7.b, including, but not limited to, any land/water use restrictions listed in Consent Decree 12 1 any future Institutional Control Implementation and Assurance Plan, as further 2 specified in this Paragraph 7.c. The Proprietary Controls shall be granted to one or 3 more of the following persons, as determined by EPA: (i) the United States, on 4 behalf of EPA, and its representatives; (ii) the State and its representatives; (iii) 5 any Settling Work Defendant(s) in any other consent decree the United States on 6 behalf of EPA has entered into or shall enter into in the Consolidated Federal 7 Action and their representatives; and/or (iv) other appropriate grantees. The 8 Proprietary Controls, other than those granted to the United States, shall include a 9 designation that EPA (and/or the State as appropriate) is a third-party beneficiary, 10 allowing EPA to maintain the right to enforce the Proprietary Controls without 11 acquiring an interest in real property. If any Proprietary Controls are granted to 12 Settling Defendants pursuant to this Paragraph 7.c, then such Settling Defendants 13 shall monitor, maintain, report on, and enforce such Proprietary Controls. 14 8. If EPA determines that Institutional Controls on the KTI Property, 15 including, but not limited to, environmental restriction covenants under state or 16 local laws, regulations, ordinances, or other governmental controls, are needed to 17 implement any removal or remedial action selected by EPA, ensure the integrity 18 and protectiveness thereof, ensure non-interference therewith, or otherwise protect 19 public health or welfare and the environment, Settling Defendants shall cooperate 20 with EPA's efforts to secure such Institutional Controls and/or governmental 21 controls. 22 9. Notwithstanding any provision of this Consent Decree, the United 23 States retains all of its information gathering, inspection, and access authorities and 24 rights, as well as all of its rights to require land use restrictions, including 25 enforcement authorities related thereto, under CERCLA, RCRA, and any other 26 applicable statute or regulations. 27 28 10. Modification of the Land Use Restrictions a. Consent Decree If EPA determines that modifications or additions to the 13 1 land/water use restrictions are necessary to carry out and maintain the effectiveness 2 of any removal or remedial action, EPA may require that such modifications or 3 additions be incorporated in the land/water use restrictions, provided, however, that 4 a modification or addition may only be required pursuant to this Paragraph to the 5 extent that it is consistent with the scope of the removal or remedial action selected 6 by EPA. 7 8 9 10 11 b. determined by EPA to be necessary pursuant to this Paragraph, they may seek dispute resolution pursuant to Section XI (Dispute Resolution), Paragraph 23 (Record Review). The land/water use restrictions shall be modified in accordance with final resolution of the dispute. 12 13 14 15 c. Settling Defendants shall implement any land/water use restrictions required by any modifications or additions incorporated in the land/water use restrictions in accordance with this Paragraph. d. 16 17 If Settling Defendants object to any modification or addition Nothing in this Paragraph shall be construed to limit EPA's authority to require performance of further response actions as otherwise provided 18 in this Consent Decree. 19 VIII. NOTICE TO SUCCESSORS-IN-TITLE AND TRANSFERS OF REAL 20 PROPERTY 21 11. Settling Defendant shall, at least sixty (60) days prior to any Transfer 22 of any real property located at the Site, give written notice: (1) to the transferee 23 regarding the Consent Decree and any Institutional Controls regarding the real 24 property; and (2) to EPA and the State regarding the proposed Transfer, including 25 the name and address of the transferee and the date on which the transferee was 26 27 28 notified of the Consent Decree and any Institutional Controls. 12. Settling Defendants may Transfer any real property located at the Site only if: (1) any Proprietary Controls required by Paragraph 7.c have been recorded Consent Decree 14 1 with respect to the real property; or (2) Settling Defendants have obtained an 2 agreement from the transferee, enforceable by Settling Defendants and the United 3 States, to (i) allow access and restrict land/water use, consistent with Paragraphs 4 7.a and 7.b, (ii) record any Proprietary Controls on the real property, consistent 5 with Paragraph 7.c, and (iii) subordinate its rights to any such Proprietary Controls, 6 consistent with Paragraph 7.c, and EPA has approved the agreement in writing. If, 7 8 9 10 11 12 after a Transfer of the real property, the transferee fails to comply with the agreement provided for in this Paragraph 12, Settling Defendants shall take all reasonable steps to obtain the transferee’s compliance with such agreement. The United States may seek the transferee’s compliance with the agreement and/or assist Settling Defendants in obtaining compliance with the agreement. Settling 13 Defendants shall reimburse the United States for all costs incurred, direct or 14 indirect, by the United States regarding obtaining compliance with such agreement, 15 including, but not limited to, the cost of attorney time. 16 13. In the event of any Transfer of real property located at the Site, unless 17 the United States otherwise consents in writing, Settling Defendants shall continue 18 to comply with their obligations under the Consent Decree, including, but not 19 limited to, their obligation to provide and/or secure access, to implement, maintain, 20 monitor, and report on Institutional Controls, and to abide by such Institutional 21 Controls. 22 IX. ACCESS TO INFORMATION 23 24 14. Settling Defendants shall provide to EPA and the State, upon request, 25 copies of all records, reports, documents, and other information (including records, 26 reports, documents, and other information in electronic form) (hereinafter referred 27 to as “Records”) within their possession or control or that of their contractors or 28 agents relating to activities at the Site or to the implementation of this Consent Consent Decree 15 1 Decree, including, but not limited to, sampling, analysis, chain of custody records, 2 manifests, trucking logs, receipts, reports, sample traffic routing, correspondence, 3 or other documents or information regarding the KTI Property or the Site. Settling 4 Defendants shall also make available to EPA and the State, for purposes of 5 investigation, information gathering, or testimony, their employees, agents, or 6 representatives with knowledge of relevant facts concerning the Site. 7 8 9 10 11 12 15. Business Confidential and Privileged Documents a. Settling Defendants may assert business confidentiality claims covering part or all of the Records submitted to Plaintiffs under this Consent Decree to the extent permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Records determined 13 to be confidential by EPA will be afforded the protection specified in 40 C.F.R. 14 Part 2, Subpart B. If no claim of confidentiality accompanies Records when they 15 are submitted to EPA and the State, or if EPA has notified Settling Defendants that 16 the Records are not confidential under the standards of Section 104(e)(7) of 17 CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such 18 Records without further notice to Settling Defendants. 19 b. Settling Defendants may assert that certain Records are 20 privileged under the attorney-client privilege or any other privilege recognized by 21 federal law. If Settling Defendants assert such a privilege in lieu of providing 22 Records, they shall provide Plaintiffs with the following: (1) the title of the 23 Record; (2) the date of the Record; (3) the name, title, affiliation (e.g., company or 24 firm), and address of the author of the Record; (4) the name and title of each 25 addressee and recipient; (5) a description of the contents of the Record; and (6) the 26 27 28 privilege asserted by Settling Defendants. If a claim of privilege applies only to a portion of a Record, the Record shall be provided to the United States in redacted form to mask the privileged portion only. Settling Defendants shall retain all Consent Decree 16 1 Records that they claim to be privileged until the United States has had a 2 reasonable opportunity to dispute the privilege claim and any such dispute has 3 been resolved in the Settling Defendants’ favor. 4 c. No Records created or generated pursuant to the requirements 5 of this Consent Decree shall be withheld from the United States or the State on the 6 grounds that they are privileged or confidential. 7 8 9 10 11 16. respect to any data, including, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or engineering data, or any other documents or information evidencing conditions at or around the Site. X. 12 13 No claim of confidentiality or privilege shall be made with 17. RETENTION OF RECORDS By signing this Consent Decree Settling Defendants hereby severally 14 certify that they have as of February 29, 2012, produced in the Consolidated 15 Federal Action all non-identical and non-privileged copies of records, reports, or 16 information in their possession or control (if any) that relate in any manner to 17 response actions taken at the B.F. Goodrich Superfund Site or the liability of any 18 person under CERCLA with respect to the B.F. Goodrich Superfund Site. Except 19 for those documents that have been produced in the Consolidated Federal Action 20 as described in the preceding sentence, each Settling Defendant shall preserve and 21 22 23 retain all non-identical copies of records, reports, or information (hereinafter referred to as “Records”) now in its possession or control, or that come into its possession or control, that relate in any manner to response actions taken at the 24 25 26 27 28 B.F. Goodrich Superfund Site or the RABSP Site, or its or any other person’s liability under CERCLA with respect to the B.F. Goodrich Superfund Site or RABSP Site, until ten (10) years after EPA’s Certification of Completion of the Final Remedial Action. Each Settling Defendant must also retain, and instruct its Consent Decree 17 1 contractors and agents to preserve, for the same period of time specified above, all 2 non-identical copies of the last draft or final version of any Records (including 3 Records in electronic form) now in its possession or control or that come into its 4 possession or control that relate in any manner to the implementation of 5 Institutional Controls, provided, however, that each Settling Defendant (and its 6 contractors and agents) must retain, in addition, copies of all data generated during 7 8 9 10 11 12 the implementation of Institutional Controls, if any, that are not contained in the aforementioned Records required to be retained. Each of the above record retention requirements shall apply regardless of any corporate retention policy to the contrary. 18. After the conclusion of the document retention period in the preceding 13 Paragraph, each Settling Defendant shall notify EPA and DOJ at least ninety (90) 14 days prior to the destruction of any such Records, and, upon request by EPA or 15 DOJ, each Settling Defendant shall deliver any such Records to EPA. Each 16 Settling Defendant may assert that certain Records are privileged under the 17 attorney-client privilege or any other privilege recognized by federal law. If a 18 Settling Defendant asserts such a privilege in lieu of providing Records, it shall 19 provide Plaintiffs with the following: (a) the title of the Record; (b) the date of the 20 Record; (c) the name, title, affiliation (e.g., company or firm), and address of the 21 author of the Record; (d) the name and title of each addressee and recipient; (e) a 22 description of the subject of the Record; and (f) the privilege asserted. If a claim of 23 privilege applies only to a portion of a Record, the Record shall be provided to the 24 United States in redacted form to mask the privileged portion only. Such Settling 25 Defendant shall retain all Records that it claims to be privileged until the United 26 27 28 States has had a reasonable opportunity to dispute the privilege claim and any such dispute has been resolved in such Settling Defendant’s favor. However, no Records created or generated pursuant to the requirements of this Consent Decree Consent Decree 18 1 or any other settlement with EPA pertaining to the RABSP Site shall be withheld 2 from the United States on the grounds that they are privileged or confidential. 3 19. Each Settling Defendant certifies individually that, to the best of its 4 knowledge and belief, after thorough inquiry, it has not altered, mutilated, 5 discarded, destroyed, or otherwise disposed of any Records (other than identical 6 copies) relating to its potential liability regarding the Site since the earlier of 7 8 9 10 11 12 notification of potential liability by the United States or the State or the filing of suit against it regarding the Site and that it has fully complied with any and all EPA and State requests for information regarding the Site pursuant to Sections 104(e) and 122(e) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927, and state law. XI. 13 14 20. DISPUTE RESOLUTION Unless otherwise expressly provided for in this Consent Decree, the 15 dispute resolution procedures of this Section shall be the exclusive mechanism to 16 resolve disputes regarding this Consent Decree. However, the procedures set forth 17 in this Section shall not apply to actions by the United States to enforce obligations 18 of Settling Defendants that have not been disputed in accordance with this Section. 19 21. Any dispute regarding this Consent Decree shall in the first instance 20 be the subject of informal negotiations between the parties to the dispute. The 21 period for informal negotiations shall not exceed twenty (20) days from the time 22 the dispute arises, unless it is modified by written agreement of the parties to the 23 dispute. The dispute shall be considered to have arisen when one party sends the 24 other parties a written Notice of Dispute. 25 26 22. Statements of Position a. In the event that the parties cannot resolve a dispute by informal 27 negotiations under the preceding Paragraph, then the position advanced by EPA 28 shall be considered binding unless, within thirty (30) days after the conclusion of Consent Decree 19 1 the informal negotiation period, Settling Defendants invoke the formal dispute 2 resolution procedures of this Section by serving on the United States a written 3 Statement of Position on the matter in dispute, including, but not limited to, any 4 factual data, analysis, or opinion supporting that position and any supporting 5 documentation relied upon by Settling Defendants. The Statement of Position 6 shall specify Settling Defendants’ position as to whether formal dispute resolution 7 should proceed under Paragraph 23 (Record Review) or 24. 8 9 b. Within thirty (30) days after receipt of Settling Defendants’ Statement of Position, EPA will serve on Settling Defendants its Statement of 10 Position, including, but not limited to, any factual data, analysis, or opinion 11 supporting that position and all supporting documentation relied upon by EPA. 12 EPA’s Statement of Position shall include a statement as to whether formal dispute 13 resolution should proceed under Paragraph 23 (Record Review) or Paragraph 24. 14 Within thirty (30) days after receipt of EPA’s Statement of Position, Settling 15 Defendants may submit a Reply. 16 c. If there is disagreement between EPA and Settling Defendants 17 as to whether dispute resolution should proceed under Paragraph 23 (Record 18 Review) or 24, the parties to the dispute shall follow the procedures set forth in the 19 paragraph determined by EPA to be applicable. However, if Settling Defendants 20 ultimately appeal to the Court to resolve the dispute, the Court shall determine 21 which paragraph is applicable in accordance with the standards of applicability set 22 forth in Paragraphs 23 and 24. 23 23. Record Review. Formal dispute resolution for disputes pertaining to 24 the selection or adequacy of any response action and all other disputes that are 25 accorded review on the administrative record under applicable principles of 26 administrative law shall be conducted pursuant to the procedures set forth in this 27 Paragraph. For purposes of this Paragraph, the adequacy of any response action 28 includes, without limitation, the adequacy or appropriateness of plans, procedures Consent Decree 20 1 to implement plans, or any other items requiring approval by EPA under this 2 Consent Decree, and the adequacy of the performance of response actions taken 3 pursuant to this Consent Decree. Nothing in this Consent Decree shall be 4 construed to allow any dispute by Settling Defendants regarding the validity of the 5 ROD’s provisions. 6 a. An administrative record of the dispute shall be maintained by 7 EPA and shall contain all statements of position, including supporting 8 documentation, submitted pursuant to this Section. Where appropriate, EPA may 9 allow submission of supplemental statements of position by the parties to the 10 11 dispute. b. The Director of the Superfund Division, EPA Region IX, will 12 issue a final administrative decision resolving the dispute based on the 13 administrative record described in Paragraph 23.a. This decision shall be binding 14 upon Settling Defendants, subject only to the right to seek judicial review pursuant 15 to Paragraphs 23.c and 23.d. 16 c. Any administrative decision made by EPA pursuant to 17 Paragraph 23.b shall be reviewable by this Court, provided that a motion for 18 judicial review of the decision is filed by Settling Defendants with the Court and 19 served on all Parties within ten (10) days after receipt of EPA’s decision. The 20 motion shall include a description of the matter in dispute, the efforts made by the 21 parties to resolve it, the relief requested, and the schedule, if any, within which the 22 dispute must be resolved to ensure orderly implementation of this Consent Decree. 23 The United States may file a response to Settling Defendants’ motion. 24 d. In proceedings on any dispute governed by this Paragraph, 25 Settling Defendants shall have the burden of demonstrating that the decision of the 26 Superfund Division Director is arbitrary and capricious or otherwise not in 27 accordance with law. Judicial review of EPA’s decision shall be on the 28 administrative record compiled pursuant to Paragraph 23.a. Consent Decree 21 1 24. Formal dispute resolution for disputes that neither pertain to the 2 selection or adequacy of any response action nor are otherwise accorded review on 3 the administrative record under applicable principles of administrative law, shall be 4 governed by this Paragraph. 5 a. Following receipt of Settling Defendants’ Statement of Position 6 submitted pursuant to Paragraph 22, the Director of the Superfund Division, EPA 7 Region IX, will issue a final decision resolving the dispute. The Superfund 8 Division Director’s decision shall be binding on Settling Defendants unless, within 9 ten (10) days after receipt of the decision, Settling Defendants file with the Court 10 and serve on the parties a motion for judicial review of the decision setting forth 11 the matter in dispute, the efforts made by the parties to resolve it, the relief 12 requested, and the schedule, if any, within which the dispute must be resolved to 13 ensure orderly implementation of the Consent Decree. The United States may file 14 a response to Settling Defendants’ motion. 15 b. Notwithstanding Paragraph C (CERCLA Section 113(j) Record 16 Review of Response Actions) of Section I (Background), judicial review of any 17 dispute governed by this Paragraph shall be governed by applicable principles of 18 law. 19 25. The invocation of formal dispute resolution procedures under this 20 Section shall not extend, postpone, or affect in any way any obligation of Settling 21 Defendants under this Consent Decree, not directly in dispute, unless EPA or the 22 Court agrees otherwise. Stipulated penalties with respect to the disputed matter 23 shall continue to accrue but payment shall be stayed pending resolution of the 24 dispute as provided in Paragraph 27. Notwithstanding the stay of payment, 25 stipulated penalties shall accrue from the first day of noncompliance with any 26 applicable provision of this Consent Decree. In the event that Settling Defendants 27 do not prevail on the disputed issue, stipulated penalties shall be assessed and paid 28 as provided in Paragraph 27 (Stipulated Penalties). Consent Decree 22 1 2 3 4 5 6 XII. FAILURE TO COMPLY WITH CONSENT DECREE OBLIGATIONS 26. Interest on Payments and Accelerated Payments. If Settling Defendants fail to make any payment required by Section VI (Settlement of Response Costs) by the required due date, Interest shall accrue on the unpaid balance owed by Settling Defendants from the date payment is due through the date of payment, and all remaining installment payments and all accrued Interest 7 8 9 10 shall become due immediately upon such failure. Interest and stipulated penalties shall continue to accrue on any unpaid amounts until the total amount due has been received. However, if Settling Defendants cure a delinquency by making a late 11 payment to EPA within thirty (30) days of the required due date, including all of 12 the then-accrued Interest and stipulated penalties as provided for in Paragraph 27, 13 below, then further stipulated penalties shall cease to run as of the date the late 14 payment is received, and Settling Defendants may make future payments to EPA 15 pursuant to the schedule provided in Section VI (Settlement of Response Costs), 16 above. 17 18 27. Stipulated Penalties a. If any amounts due the United States are not paid by their 19 respective required date(s), Settling Defendants shall be in violation of this 20 Consent Decree and shall pay, as a stipulated penalty, in addition to the Interest 21 required by Paragraph 26, five thousand dollars ($5,000) per violation per day to 22 the United States for each day such payment is late. 23 24 25 26 27 28 b. If Settling Defendants do not comply with the access and/or Institutional Controls provisions of Section VII, Settling Defendants shall be in violation of this Consent Decree and shall pay to the United States, as a stipulated penalty, five thousand dollars ($5,000) per violation per day of such noncompliance. Consent Decree 23 1 c. Stipulated penalties are due and payable within thirty (30) days 2 after the date of the demand for payment of the penalty or penalties. All payments 3 of stipulated penalties owed to the United States under this Paragraph shall be 4 identified as “stipulated penalties” and shall be made in accordance with 5 instructions provided to such Settling Defendant(s) by the United States. Such 6 payment shall reference Site/Spill ID Number 09JW, and DOJ Case Number 90- 7 8 9 10 11 12 13 11-2-09952. At the time of payment of a stipulated penalty for nonpayment to the United States as described in Paragraph 27.a, the non-paying or late-paying Settling Defendant(s) shall send notice to DOJ and EPA that payment has been made in accordance with Section XVI (Notices and Submissions). Such notice shall reference Site/Spill ID Number 09JW, and DOJ Case Number 90-11-209952. d. 14 Penalties shall accrue as provided in this Paragraph regardless 15 of whether the United States has notified Settling Defendant(s) of the violation or 16 made a demand for payment, but need only be paid upon demand. All penalties 17 shall begin to accrue on the day after payment is due and shall continue to accrue 18 through the date of payment. Nothing in this Consent Decree shall prevent the 19 simultaneous accrual of separate penalties for separate violations of this Consent 20 Decree. 21 28. Payments made under this Section shall be in addition to any other 22 remedies or sanctions available to the United States by virtue of Settling 23 Defendants’ failure to comply with the requirements of this Consent Decree. 24 25 26 27 28 29. Notwithstanding any other provision of this Section, the United States may, in its unreviewable discretion, waive payment of any portion of the stipulated penalties due to the United States pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse Settling Defendants from payment as required by Section VI (Settlement of Response Costs) or from performance of any other Consent Decree 24 1 requirements of this Consent Decree. 2 XIII. COVENANTS AND RESERVATIONS OF RIGHTS BY PLAINTIFFS 3 4 5 6 7 30. Covenants by the United States on Behalf of EPA. Except as specifically provided in Paragraphs 31-34, the United States on behalf of EPA covenants not to sue or to take administrative action against Settling Defendants pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a) 8 and Section 7003 of RCRA, 42 U.S.C. § 6973, relating to the B.F. Goodrich 9 Superfund Site. With respect to present and future response costs, these covenants 10 shall take effect upon receipt by Plaintiffs of all amounts required by Paragraph 5 11 and any Interest or stipulated penalties due thereon under Section XII (Failure to 12 Comply with Consent Decree Obligations). These covenants are conditioned upon 13 the satisfactory performance by Settling Defendants of their obligations under this 14 Consent Decree, including but not limited to, payment of all amounts due under 15 Section VI (Settlement of Response Costs), and any Interest or stipulated penalties 16 due thereon under Section XII (Failure to Comply with Consent Decree 17 Obligations). These covenants extend only to Settling Defendants and do not 18 extend to any other person. 19 20 21 22 23 31. United States’ Pre-certification Reservations. Notwithstanding any other provision of this Consent Decree, the United States reserves, and this Consent Decree is without prejudice to, the right to institute proceedings in this action or in a new action, or to issue an administrative order, seeking to compel Settling Defendant(s): 24 1) 25 26 Goodrich Superfund Site; or 2) 27 28 to perform further response actions relating to the B.F. to reimburse the United States for additional costs of response if, prior to Certification of Completion of the Final Remedial Action for Consent Decree 25 1 the B.F. Goodrich Superfund Site: 2 3 i. conditions at the B.F. Goodrich Superfund Site, previously unknown to EPA, are discovered, or 4 ii. information, previously unknown to EPA, is 5 received, in whole or in part, 6 and EPA determines that these previously unknown conditions or information 7 8 9 10 11 12 together with any other relevant information indicates that the B.F. Goodrich Superfund Site Final Remedial Action is not protective of human health or the environment. 32. United States’ Post-certification Reservations. Notwithstanding any other provision of this Consent Decree, the United States reserves, and this 13 Consent Decree is without prejudice to, the right to institute proceedings in this 14 action or in a new action, or to issue an administrative order, seeking to compel 15 Settling Defendant(s): 1) 16 17 to perform further response actions relating to the B.F. Goodrich Superfund Site; or 2) 18 to reimburse the United States for additional costs of 19 response if, subsequent to Certification of Completion of the Final Remedial 20 Action for the B.F. Goodrich Superfund Site: 21 22 i. conditions at the B.F. Goodrich Superfund Site, previously unknown to EPA, are discovered, or 23 ii. information, previously unknown to EPA, is 24 received, in whole or in part, 25 and EPA determines that these previously unknown conditions or information 26 27 28 together with any other relevant information indicates that the B.F. Goodrich Superfund Site Final Remedial Action is not protective of human health or the environment. Consent Decree 26 1 33. For purposes of Paragraph 31, the information and the conditions 2 known to EPA shall include only that information and those conditions known to 3 EPA as of the date the Final Record of Decision is signed and set forth in the Final 4 Record of Decision and the administrative record supporting the Final Record of 5 Decision. For purposes of Paragraph 32, the information and the conditions known 6 to EPA shall include only that information and those conditions known to EPA as 7 8 9 10 11 12 13 14 of the date of Certification of Completion of the Final Remedial Action and set forth in the Final Record of Decision, the administrative record supporting the Final Record of Decision, the post-Final Record of Decision administrative record, or in any information required to be submitted to EPA during the conduct of the remedial design and remedial action, prior to the Certification of Completion of the Final Remedial Action. 34. General Reservations of Rights. The United States on behalf of EPA 15 and the federal natural resource trustee reserves, and this Consent Decree is 16 without prejudice to, all rights against Settling Defendants with respect to all 17 matters not expressly included within the Covenants by the United States in 18 Paragraph 30. Notwithstanding any other provision of this Consent Decree, the 19 United States on behalf of EPA and the federal natural resource trustee reserves all 20 rights against Settling Defendants with respect to: 21 22 23 a. claims based on a failure by Settling Defendants to meet their requirements under this Consent Decree; b. liability arising from the past, present, or future disposal, 24 release, or threat of release of Waste Material outside of the B.F. Goodrich 25 Superfund Site; 26 27 28 c. liability based on the ownership or operation of any portion of the B.F. Goodrich Superfund Site by Settling Defendants when such ownership or operation commences after signature of this Consent Decree and does not arise Consent Decree 27 1 solely out of performance of the Work; 2 d. liability based on Settling Defendants’ transportation, 3 treatment, storage, or disposal, or the arrangement for the transportation, treatment, 4 storage, or disposal of Waste Material at or in connection with the B.F. Goodrich 5 Superfund Site, other than as provided in the 2010 ROD, the Work, or otherwise 6 ordered by EPA, after signature of this Consent Decree; 7 8 e. natural resources, and for the costs of any natural resource damage assessments; 9 f. 11 criminal liability; g. 10 12 liability for damages for injury to, destruction of, or loss of liability for violations of federal or state law which occur during or after implementation of the Work. 13 XIV. COVENANTS AND RESERVATIONS OF RIGHTS BY SETTLING 14 DEFENDANTS AND SETTLING FEDERAL AGENCIES 15 35. Except as provided in Paragraph 36, Settling Defendants covenant not 16 to sue and agree not to assert any claims or causes of action against the United 17 States on behalf of EPA, or its contractors or employees, with respect to the B.F. 18 Goodrich Superfund Site and this Consent Decree, including, but not limited to: 19 20 21 22 23 a. any direct or indirect claim for reimbursement from the Hazardous Substance Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507) through CERCLA Sections 106(b)(2), 107, 111, 112, 113, or any other provision of law; b. any claims against the United States, including any department, 24 25 26 27 28 agency, or instrumentality of the United States under CERCLA Sections 107 or 113, RCRA Section 7002(a), 42 U.S.C. § 6972(a), or state law regarding, the B.F. Goodrich Superfund Site, response actions at the Site, response costs incurred at the Site, and this Consent Decree; Consent Decree 28 1 2 c. any claims arising out of response actions at or in connection 3 with the B.F. Goodrich Superfund Site relating to the United States, including any 4 claim under the United States Constitution, the California Constitution, the Tucker 5 Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, as 6 amended, or at common law; 7 8 d. Consolidated Federal Action; and 9 e. 10 11 12 any claim, whether express or deemed by court order, in the any direct or indirect claim for disbursement from the B.F. Goodrich Superfund Site Special Account. 36. These covenants and releases shall not apply to the United States in 13 the event the United States brings a cause of action or issues an order pursuant to 14 any of the reservations set forth in Paragraphs 31-34, other than in Paragraph 34.a 15 (liability for failure to meet a requirement of the Consent Decree) or 34.f (criminal 16 liability), but only to the extent that Settling Defendants’ claims arise from the 17 same response action, response costs, or damages that the United States is seeking 18 pursuant to the applicable reservation. 19 37. Nothing in this Consent Decree shall be deemed to constitute approval 20 or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 21 U.S.C. § 9611, or 40 C.F.R. §300.700(d). 22 38. Except as provided in Paragraph 40, each of the Settling Defendants 23 releases and covenants not to sue or take administrative action against any of the 24 Settling Federal Agencies, and each of the Settling Federal Agencies releases and 25 covenants not to sue or take administrative action against any of the Settling 26 27 28 Defendants, pursuant to Sections 107(a) or 113 of CERCLA, 42 U.S.C. §§ 9607(a) and 9613, Section 7002 of RCRA, 42 U.S.C. § 6972, or any other state or federal statute or state or federal common law with respect to all claims of any kind, Consent Decree 29 1 known and unknown, in connection with the alleged release or threatened release 2 of any of the Basin Contaminants at, on, or under the RABSP Site. With respect to 3 present and future liability, these covenants and releases shall take effect upon 4 receipt by Plaintiffs of all payment amounts required by Paragraph 5 and any 5 Interest or stipulated penalties due thereon under Section XII (Failure to Comply 6 with Consent Decree Obligations). 7 8 9 10 11 39. In releasing all unknown claims, each of the Settling Defendants and the Settling Federal Agencies waives the provisions of Section 1542 of the California Civil Code which provides: 13 A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 14 40. 12 Each of the Settling Defendants and Settling Federal Agencies 15 reserves, and this Consent Decree is without prejudice to, all rights against the 16 Settling Defendants and Settling Federal Agencies with respect to: 17 18 a. requirement of this Consent Decree; 19 20 liability of the breaching Party for its failure to meet a b. liability based on the ownership or operation of any portion of the RABSP Site when such ownership or operation commences after lodging of 21 22 23 this Consent Decree and there is a new release of a Waste Material on or related to such property; c. 24 liability based on transportation, treatment, storage, or disposal, 25 or arrangement for transportation, treatment, storage, or disposal of a Waste 26 Material at or in connection with the RABSP Site, after lodging of this Consent 27 Decree; 28 Consent Decree 30 1 2 d. liability arising from the past, present, or future disposal, release, or threat of release of a Waste Material outside of the RABSP Site; 3 e. liability arising from the release, threat of release, or disposal of 4 a Waste Material either within or outside of the RABSP Site, where such release, 5 threat of release, or disposal occurs after the lodging of this Consent Decree; 6 7 8 f. threatened releases at the RABSP Site, where the Waste Material at issue is not a Basin Contaminant; 9 g. 11 liability related to bodily injury; and h. 10 12 liability arising from past, present, or future releases or claims for contribution whether based on federal or state statutes or common law arising out of: (1) claims in City of Riverside v. Black & 13 Decker (U.S.), Inc., et al., Case No. BC410878; (2) claims asserted by any person 14 or entity that was not a party to the Consolidated Federal Action on August 24, 15 2012; or, (3) claims for natural resource damages. 16 For purposes of subparagraphs b., c., and e. of this Paragraph, migration of existing 17 Waste Material is not a new release or disposal of Waste Material into soil, 18 groundwater, or atmosphere. 19 20 21 22 23 41. Further Settlors. Settling Defendants agree that in the event that: (a) the United States, on behalf of EPA, reaches or has reached settlement with any other party to the Consolidated Federal Action who is not a signatory to this Consent Decree (“Further Settlor”); and (b) the United States, on behalf of EPA, gives notice in accordance with Section XVI (Notices and Submissions) to Settling 24 25 26 27 28 Defendants that such party has become a Further Settlor; then upon Court approval of that Further Settlor’s settlement, Settling Defendants commit that they shall extend to any such Further Settlor identical releases and covenants not to sue and waiver to those set forth in Paragraphs 38 and 39, without further monetary Consent Decree 31 1 consideration for such covenants and waiver, subject to the reservations of rights in 2 Paragraph 40, and in exchange for mutual releases of claims and appeals by that 3 Further Settlor against Settling Defendants substantially similar to the releases and 4 covenants not to sue and waiver set forth in Paragraphs 38 and 39. The 5 commitments of Settling Defendants to provide such covenants not to sue, subject 6 to the reservation of rights, in the foregoing sentence shall not take effect as to any 7 8 9 10 11 12 Future Settlor unless and until the settlement with such Future Settlor becomes a final judgment following any appeal. The United States, on behalf of EPA, has sole discretion to determine whether a party is to be deemed a “Further Settlor” for purposes of this Paragraph. 42. Claims Against Other Parties in the Consolidated Federal Action. 13 Settling Defendants agree not to assert any claims and to waive all claims or causes 14 of action (including but not limited to claims or causes of action under Sections 15 107(a) and 113 of CERCLA) or any other federal or state law that they may have 16 for response costs relating to the B.F. Goodrich Superfund Site and/or the West 17 Side Site against each other or any other person who is or was a party in the 18 Consolidated Federal Action. This waiver shall not apply with respect to any 19 defense, claim, or cause of action that a Settling Defendant may have against any 20 person if such person asserts a claim or cause of action relating to the B.F. 21 Goodrich Superfund Site and/or the West Side Site against such Settling 22 Defendant. 23 43. Settling Defendants’ Agreement Regarding Recovery Under Federal 24 Contracts. Each Settling Defendant hereby agrees that it shall not in the future 25 seek or receive any portion of any amount it has agreed to pay in this Consent 26 Decree, through any Federal Contract. Pursuant to this Paragraph, each Settling 27 Defendant expressly acknowledges that it is prohibited from including any portion 28 of the payments made pursuant to this Consent Decree as either direct or indirect Consent Decree 32 1 costs, or otherwise, in any invoice, claim, or demand associated with any Federal 2 Contract. 3 4 5 6 7 8 9 XV. 44. EFFECT OF SETTLEMENT/CONTRIBUTION Except as provided in Paragraph 42, 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. Except as provided in Section XIV (Covenants and Reservations of Rights by Settling Defendants and Settling Federal Agencies), each of the Parties expressly reserves any and all rights (including, but 10 not limited to, under Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, 11 claims, demands, and causes of action which it may have with respect to any 12 matter, transaction, or occurrence relating in any way to the RABSP Site against 13 any person not a Party hereto. Nothing in this Consent Decree diminishes the right 14 of the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. 15 § 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or 16 response action and to enter into settlements that give rise to contribution 17 protection pursuant to Section 113(f)(2). 18 45. The Parties agree, and by entering this Consent Decree this Court 19 finds, that this settlement constitutes a judicially approved settlement for purposes 20 of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and that Settling 21 Defendants are entitled, as of the Effective Date, to protection from contribution 22 actions or claims as provided by Section 113(f)(2) of CERCLA, or as may be 23 24 25 otherwise provided by law, for “matters addressed” in this Consent Decree. The “matters addressed” in this Consent Decree are all response actions taken or to be taken and all response costs incurred or to be incurred at or in connection with the 26 27 28 B.F. Goodrich Superfund Site or the West Side Site by the United States or any other person; provided, however, that if the United States on behalf of EPA Consent Decree 33 1 exercises any of the reservations in Section XIII (Covenants and Reservations of 2 Rights by Plaintiffs), other than in Paragraphs 34.a (liability for failure to meet a 3 requirement of Consent Decree) or 34.f (criminal liability), the “matters addressed” 4 in this Consent Decree will no longer include those response costs or response 5 actions that are within the scope of the exercised reservation. Nothing in this 6 Paragraph shall limit or affect the ability of any Settling Defendant and/or Settling 7 8 9 10 11 12 Federal Agency to exercise their reservations of rights as to each other in Paragraph 40. 46. The Parties further agree, and by entering this Consent Decree this Court further finds, that the payments and obligations provided for in this Consent Decree represent a good faith compromise of disputed claims and that the 13 compromise represents a fair, reasonable, and equitable resolution. With regard to 14 any claims for costs, damages, or other claims against the Parties, the Parties agree 15 and this Court finds that Settling Defendants are entitled to contribution protection 16 pursuant to the California Code of Civil Procedure §§ 877 and 877.6, and any other 17 applicable provision of federal or state law, whether by statute or common law. 18 19 20 47. The Parties intend the broadest possible protection from contribution actions provided by law for “matters addressed” in this Consent Decree. 48. Each Settling Defendant shall, with respect to any suit or claim 21 brought by it for matters related to this Consent Decree after the date the Consent 22 Decree is lodged with the Court, notify EPA and DOJ in writing no later than sixty 23 (60) days prior to the initiation of such suit or claim. Each Settling Defendant also 24 shall, with respect to any suit or claim brought against it for matters related to this 25 Consent Decree, notify EPA and DOJ in writing within ten (10) days after service 26 27 of the complaint or claim upon it. In addition, each Settling Defendant shall notify EPA and DOJ within ten (10) days after service or receipt of any motion for 28 Consent Decree 34 1 summary judgment, and within ten (10) days after receipt of any order from a court 2 setting a case for trial, for matters related to this Consent Decree. 3 49. In any subsequent administrative or judicial proceeding initiated by 4 the United States for injunctive relief, recovery of response costs, or other relief 5 relating to the B.F. Goodrich Superfund Site, Settling Defendants shall not assert, 6 and may not maintain, any defense or claim based upon the principles of waiver, 7 8 9 10 11 12 13 res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the United States in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the covenants not to sue set forth in Sections XIII and XIV (Covenants and Reservations of Rights). XVI. 14 50. 15 NOTICES AND SUBMISSIONS Whenever, under the terms of this Consent Decree, notice is required 16 to be given or a document is required to be sent by one party to another, it shall be 17 directed to the individuals at the addresses specified below, unless those 18 individuals or their successors give notice of a change to the other Parties in 19 writing. Written notice as specified in this Section shall constitute complete 20 satisfaction of any written notice requirement of the Consent Decree with respect 21 to the United States, EPA, and each Settling Defendant, respectively. 22 23 As to the United States: 24 Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044-7611 Re: DJ # 90-11-2-09952 25 26 27 28 -and- Consent Decree 35 4 Chief, Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044-7611 Re: DJ # 90-11-6-17144/1 5 As to EPA: 1 2 3 6 7 8 9 10 Remedial Project Manager, B.F. Goodrich Site Wayne Praskins United States Environmental Protection Agency Region 9 75 Hawthorne St. San Francisco, CA 94105 As to Ken Thompson, Inc.; KTI, Incorporated; Pipeline Carriers, Inc.; and Rialto Concrete Products, Inc: 14 Ralph Delorea KTI, Incorporated 3011 N. Laurel Ave. Rialto, CA 92377 Telephone: (909) 434-1888 Email: rdeloera@ktipipe.com 15 -and- 16 Keith A. Kelly, Esq. Law Offices of Keith A. Kelly 7095 Indiana Ave., Ste. 200 Riverside, CA 92506 Telephone: (951) 684-7066 Email: keith.kelly@kakellylaw.com 11 12 13 17 18 19 XVII. 20 21 22 51. This Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of this Consent Decree. 23 24 25 26 27 28 RETENTION OF JURISDICTION XVIII. 52. INTEGRATION/APPENDICES This Consent Decree and its appendices constitute the final, complete and exclusive agreement and understanding between the Parties with respect to the settlement embodied in this Consent Decree. The Parties acknowledge that there are no representations, agreements, or understandings relating to the settlement other than those expressly contained in this Consent Decree. The following Consent Decree 36 1 2 3 4 5 6 7 8 9 10 11 12 appendices are attached to and incorporated into this Consent Decree: “Appendix A” is the map of the RABSP, including the 160-Acre Area, the Stonehurst Property, and the County Property. “Appendix B” includes the legal descriptions and assessor’s map of the parcels comprising the KTI Property. “Appendix C” is a map depicting the portions of the KTI Property for which EPA will require thirty (30) Days’ notice from Settling Defendants if Settling Defendants intend to disturb the subsurface soils or sediments six (6) or more inches below ground surface. XXIV. 53. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT This Consent Decree shall be lodged with the Court for a period of not 13 less than thirty (30) days for public notice and comment. The United States 14 reserves the right to withdraw or withhold its consent if the comments regarding 15 the Consent Decree disclose facts or considerations that indicate that this Consent 16 Decree is inappropriate, improper, or inadequate. Settling Defendants consent to 17 the entry of this Consent Decree without further notice. 18 54. If for any reason this Court’s entry of the Consent Decree is reversed 19 on appeal, in whole or material part, this Consent Decree is voidable at the sole 20 discretion of any Party and the terms of the Consent Decree may not be used as 21 evidence in any litigation between the Parties. 22 XX. 23 24 55. FINAL JUDGMENT The United States and Settling Defendants agree, and this Court by 25 entering this Consent Decree finds, that this Consent Decree has been negotiated 26 by the Parties in good faith, that settlement of this matter will avoid prolonged and 27 complicated litigation between the Parties, and that this Consent Decree is fair, 28 reasonable, and in the public interest. Consent Decree 37 1 56. The Court finds that there is no just reason for delay of entry of this 2 Consent Decree, and therefore enters this judgment as a final judgment under Fed. 3 R. Civ. P. 54 and 58. 4 5 SO ORDERED THIS ____ DAY OF _______, 2013. 2nd July 6 7 ___________________________________ HONORABLE PHILIP S. GUTIERREZ United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consent Decree 38 1 FOR THE UNITED STATES OF AMERICA: 2 c~ 3 4 Dated: Z~~ Gf-Qu~v B' ACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division United States Department of Justice 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consent Decree 39 1 FOR THE UNITED STATES OF AMERICA: 2 3 4 Dated: ~~'~~/tit~ o ~ aD~j By: DEBORAH A. GITIN Senior Counsel United States Department of Justice Environment and Natural Resources Division Environmental Enforcement Section 301 Howard St., Suite 1050 San Francisco, CA 94105 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consent Decree .~ 1 FOR THE UNITED STATES OF AMERICA: 2 3 Dated: 3 2~ 13 By: ~~ ~,q~ A. RIGAU S- efor Trial Counsel United States Department of Justice Environmental and Natural Resources Division Environmental Defense Section 301 Howard St., Suite 1050 San Francisco, CA 94105 5 6 7 8 9 10 11 ~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ~~:~ Consent Decree ~1. Appendix A 43 APPENDIX A 160-Acre Area 160-Acre Area County Property Stonehurst Property Stonehurst West Side Area Rialto Ammunition Backup Storage Point (“RABSP”) NOT TO SCALE A 44 Appendix B 45 APN 0239-192-05-0000 Legal Description The following real property in the City of Rialto, San Bernardino County, State of California, described as: Parcel 12 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of said County. APN 0239-192-11-0000 Legal Description The following real property in the City of Rialto, San Bernardino County, State of California, described as: Parcel 6 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of said County. APN 0239-192-19-0000 Legal Description The following real property in the City of Rialto, San Bernardino County, State of California, described as: Parcel 11 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of said County, TOGETHER WITH the Westerly 136.00 feet of Parcel 10 of Parcel Map 7173. APN 0239-192-20-0000 Legal Description The following real property in the City of Rialto, San Bernardino County, State of California, described as: Parcel 10 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of said County, EXCEPTING THEREFROM the Westerly 136.00 feet thereof. APN 0239-192-09-0000 Legal Description The following real property in the City of Rialto, San Bernardino County, State of California, described as: Parcel 8 of the Parcel Map No. 7173, City of Rialto, County of San Bernardino, State of California, as per map recorded in Book 77, Page(s) 64 to 68 of Maps, in the office of the County Recorder of said County. 46 47 Appendix C 48 Appendix C to the Consent Decree by and between the United States and Ken Thompson, Inc., et al. Aerial image © Google Earth, 2013. Annotation by CH2M HILL, 2013. 0 North 300 600 Approximate scale in feet Areas where Settling Defendants should provide EPA notice if they intend to disturb subsurface soils. ES022113223559SCO385219.DE.01 BFG_Historic_disposal_sites.ai 2/13 49

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