USA v. El Dorado County, et al, No. 2:2001cv01520 - Document 380 (E.D. Cal. 2010)
Court Description: PARTIAL CONSENT DECREE with South Tahoe Refuse Company, Inc. signed by Judge Morrison C. England, Jr on 5/12/10 ORDERING that upon approval and entry of this Partial Consent Decree by the Court, this Partial Consent Decree shall constitute the final judgment between the United States and settling dft. The court finds that there is no just reason for delay and therefore enters this judgment as a final judgment under FRCP 54 and 58. (Carlos, K)
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USA v. El Dorado County, et al 1 2 Doc. 380 ELLEN M. MAHAN Deputy Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice 3 4 5 6 7 KARL J. FINGERHOOD Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Tel: (202) 514-7519 Fax: (202) 514-2583 8 karl.fingerhood@usdoj.gov 9 10 BENJAMIN B. WAGNER United States Attorney Eastern District of California 11 14 SYLVIA QUAST Assistant U.S. Attorney 501 " I " Street Suite 10-100 Sacramento, CA 95814 Phone: (916) 554-2700 Fax: (916) 554-2900 15 sylvia.quast@usdoj.gov 12 13 16 IN THE UNITED STATES DISTRICT COURT 17 FOR THE EASTERN DISTRICT OF CALIFORNIA 18 ____________________________________ 19 UNITED STATES OF AMERICA, 20 21 22 23 24 25 26 ) ) ) Plaintiff, ) ) v. ) ) EL DORADO COUNTY, CALIFORNIA; ) and CITY OF SOUTH LAKE TAHOE, ) CALIFORNIA, ) ) Defendants. ) ____________________________________) ) AND RELATED ACTIONS ) ____________________________________) Civil No. S-01-01520 MCE GGH PARTIAL CONSENT DECREE WITH SOUTH TAHOE REFUSE COMPANY, INC. 27 28 Dockets.Justia.com 1 TABLE OF CONTENTS 2 3 I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 II. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 III. PARTIES BOUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6 IV. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 7 V. STATEMENT OF PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 VI. PAYMENT OF RESPONSE COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9 VII. FAILURE TO COMPLY WITH CONSENT DECREE . . . . . . . . . . . . . . . . . . . . 7 10 VIII. COVENANT NOT TO SUE BY PLAINTIFF . . . . . . . . . . . . . . . . 8 11 IX RESERVATION OF RIGHTS BY UNITED STATES . . . . . . . . . . . 9 12 X. COVENANT NOT TO SUE BY SETTLING DEFENDANT . . . . . 10 13 XI. EFFECT 14 XII. DOCUMENT RETENTION/CERTIFICATION. . . . . . . . . . 12 15 XIII. NOTICES AND SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 16 XIV. RETENTION OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 17 XV. INTEGRATION/APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 18 XVI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT . . . . . 15 19 XVII. SIGNATORIES/SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 20 XVIII. FINAL JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 21 22 23 24 25 26 27 28 OF SETTLEMENT . . . . . . . . . . . . . 11 1 I. BACKGROUND 2 A. On August 3, 2001, Plaintiff United States of America ("United States"), on behalf of the 3 United States Department of Agriculture, Forest Service ("Forest Service"), filed a complaint 4 pursuant to Sections 107 and 113(f) of the Comprehensive Environmental Response, Compensation, 5 and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607, 9613(f), against Defendants the County of El 6 Dorado (the "County") and the City of South Lake Tahoe (the "City"). The complaint filed by the 7 United States seeks recovery of environmental response costs incurred by the Forest Service related 8 to the release or threatened release and/or disposal of hazardous substances at or from the Meyers 9 Landfill Site, a former waste disposal facility located on National Forest System lands administered 10 by the Lake Tahoe Basin Management Unit of the Forest Service, and a "facility" as defined under 11 42 U.S.C. § 9601(9), with accrued interest, and a declaration of the County's and the City's liability 12 for future response costs incurred by the United States related to the Site. On June 19, 2002, the 13 County filed its Second Amended Third Party Complaint in this Action, seeking contribution under 14 CERCLA Section 113(f), 42 U.S.C. § 9613(f), from Third-Party Defendant South Tahoe Refuse 15 Company, Inc. ("STR" or “Settling Defendant”), which collected garbage in the South Lake 16 Tahoe-area during a portion of the relevant time Meyers Landfill operated, and from a number of 17 reported customers of STR during a portion of the relevant time and also contracted with the County 18 to operate the dump. 19 B. The defendant that has entered into this Partial Consent Decree (“Settling Defendant”) 20 does not admit any liability to Plaintiff, cross-complainant or any other party arising out of the 21 transactions or occurrences alleged in the Second Amended Third Party Complaint. 22 C. In response to a release or a substantial threat of a release of hazardous substances at or 23 from the Site, in 2005 the Forest Service commenced a Supplemental Remedial Investigation and 24 Supplemental Feasibility Study (“SRI/SFS”) for the Site pursuant to 40 C.F.R. § 300.430. 25 /// 26 /// 27 /// 28 /// -2- 1 D. In early 2006, consistent with EPA CERCLA guidance, the Forest Service made a 2 determination to separate the landfill and the contaminated groundwater beneath the Site into two 3 separate operable units (“OUs”) for remediation purposes. OU-1 is the landfill waste mass itself and 4 OU-2 is the contaminated groundwater plume and any other site-wide response actions required 5 subsequent to the implementation of the remedial action for OU-1. This Partial Consent Decree 6 addresses OU-1. 7 E. The Forest Service completed the OU-1 SRI/SFS Report in May, 2007. 8 F. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, the Forest Service published 9 notice of the completion of the OU-1 SRI/SFS and of the OU-1 proposed plan for remedial action 10 on May 21, 2007, in a major local newspaper of general circulation. The Forest Service provided 11 an opportunity for written and oral comments from the public on the proposed plan for remedial 12 action. A copy of the transcript of the public meeting is available to the public as part of the 13 administrative record upon which the Forest Service based the selection of the response action. 14 G. The decision by the Forest Service on the Remedial Action to be implemented at the Site 15 for OU-1 is embodied in a final Record of Decision (“ROD”or “OU-1 ROD”), executed on 16 November 15, 2007, on which the State had a reasonable opportunity to review and comment. The 17 OU-1 ROD is supported by an administrative record that contains the documents and information 18 upon which the Forest Service based its selection of the response action. 19 H. The United States has reviewed the Financial Information and Insurance Information 20 submitted by Settling Defendant to determine whether Settling Defendant is financially able to pay 21 response costs incurred and to be incurred at the Site. Based upon this Financial Information and 22 Insurance Information, the United States has determined that Settling Defendant is able to pay the 23 amounts specified in Section VI (Payment of Response Costs). 24 D. The United States and Settling Defendant agree, and this Court by entering this Partial 25 Consent Decree finds, that this Partial Consent Decree has been negotiated by the Parties in good 26 faith, that settlement of this matter will avoid prolonged and complicated litigation between the 27 Parties, and that this Partial Consent Decree is fair, reasonable, and in the public interest. 28 /// -3- 1 2 THEREFORE, with the consent of the Parties to this Decree, it is ORDERED, ADJUDGED, AND DECREED: 3 II. JURISDICTION 4 1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 5 1331 and 1345 and 42 U.S.C. §§ 9607 and 9613(b) and also has personal jurisdiction over Settling 6 Defendant. Solely for the purposes of this Partial Consent Decree and the underlying cross 7 complaint, Settling Defendant waives all objections and defenses that it may have to jurisdiction of 8 the Court or to venue in this District. Settling Defendant shall not challenge entry or the terms of 9 this Partial Consent Decree or this Court’s jurisdiction to enter and enforce this Partial Consent 10 Decree. 11 III. PARTIES BOUND 12 2. This Partial Consent Decree is binding upon the United States, and upon Settling 13 Defendant and its successors and assigns. Any change in ownership or corporate or other legal 14 status, including, but not limited to, any transfer of assets or real or personal property, shall in no way 15 alter the status or responsibilities of Settling Defendant under this Partial Consent Decree. 16 IV. DEFINITIONS 17 3. Unless otherwise expressly provided in this Partial Consent Decree, terms used in this 18 Partial Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA 19 shall have the meanings assigned to them in CERCLA or in such regulations. Whenever terms listed 20 below are used in this Partial Consent Decree or in any appendix attached hereto, the following 21 definitions shall apply: 22 23 “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. 24 “Day” shall mean a calendar day. In computing any period of time under this Partial 25 Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period 26 shall run until the close of business of the next working day. 27 28 “DOJ” shall mean the United States Department of Justice and any successor departments, agencies or instrumentalities of the United States. -4- 1 2 “Forest Service” shall mean the United States Department of Agriculture, Forest Service and any successor departments or agencies of the United States. 3 “Effective Date” shall be the date the Court enters this Partial Consent Decree. 4 “EPA Hazardous Substance Superfund” shall mean the Hazardous Substance 5 Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507. 6 7 “Financial Information” shall mean those financial documents identified in Appendix A. 8 “Future OU1 Response Costs” shall mean all costs, including, but not limited to, 9 direct and indirect costs, that the United States incurs pursuant to CERCLA related to OU-1 from 10 the Effective Date of this Partial Consent Decree forward. 11 12 “Insurance Information” shall mean those insurance documents identified in Appendix C. 13 “Interim Response Costs” shall mean all costs, including direct and indirect costs, 14 (a) paid by the United States in connection with the Site between January 1, 2008 and the Effective 15 Date, or (b) incurred prior to the Effective Date but paid after that date, plus Interest on all such costs 16 which has accrued pursuant to 42 U.S.C. § 9607(a) between such dates. 17 “Interest” shall mean interest at the rate specified for interest on investments of the 18 EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on 19 October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall 20 be the rate in effect at the time the interest accrues. The rate of interest is subject to change on 21 October 1 of each year. 22 23 “Meyers Landfill Site Special Account” shall mean the special account established at the Site by the Forest Service pursuant to 16 U.S.C.§ 579c. 24 “OU1 Record of Decision” or “OU1 ROD” shall mean the Forest Service Record of 25 Decision relating to Operable Unit 1 at the Site, signed on November 15, 2007, by the Forest 26 Service, and all attachments thereto. 27 /// 28 /// -5- 1 “OU1 Remedial Action” shall mean those activities, including construction work, to 2 be undertaken to implement the OU-1 ROD, in accordance with the final Statement of Work 3 (“SOW”) for OU-1 and the final Remedial Design and Remedial Action Work Plans and other plans 4 approved by the Forest Service. 5 6 “Paragraph” shall mean a portion of this Partial Consent Decree identified by an Arabic numeral or an upper or lower case letter. 7 “Partial Consent Decree” shall mean this Partial Consent Decree and all appendices 8 attached hereto. In the event of conflict between this Partial Consent Decree and any appendix, this 9 Partial Consent Decree shall control. 10 “Parties” shall mean the United States and the Settling Defendant. 11 “Past Response Costs” shall mean all costs, including, but not limited to, direct and 12 indirect costs, that the United States paid at or in connection with the Site through December 31, 13 2007, plus Interest on all such costs which has accrued pursuant to 42 U.S.C. § 9607(a) through such 14 date. 15 16 “Section” shall mean a portion of this Partial Consent Decree identified by a Roman numeral. 17 18 “Settling Defendant” shall mean South Tahoe Refuse Company, Inc. and its predecessor in interest, SERV-U-GARBAGE, a partnership and their successors and assigns. 19 “Site” shall mean the Meyers Landfill Site, located in Meyers, El Dorado County, 20 California, encompassing the areal extent of contamination including, without limitation, 21 approximately 11 acres of buried waste and the groundwater plume originating therefrom (which 22 presently has an areal extent of approximately 31 acres), and generally shown on the map attached 23 hereto as Appendix “B.” 24 “United States” shall mean the United States of America and each department, agency 25 and instrumentality of the United States, including the Forest Service. 26 /// 27 /// 28 /// -6- 1 V. STATEMENT OF PURPOSE 2 4. By entering into this Partial Consent Decree, the mutual objective of the Parties is for 3 Settling Defendant to make a cash payment to resolve its alleged civil liability for OU1 at the Site 4 under Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607, as provided in the Covenant 5 Not to Sue by Plaintiff in Section VIII, and subject to the Reservations of Rights by United States 6 in Section IX. 7 VI. PAYMENT OF RESPONSE COSTS 8 5. Within 45 days of the Effective Date of this Partial Consent Decree, Settling Defendant 9 shall pay $1,000,000.00 to the Forest Service to be deposited in the Meyers Landfill Special Account 10 to be retained and used to conduct or finance response actions at or in connection with the Site. 11 6. Payment shall be made by FedWire Electronic Funds Transfer (“EFT”) to the U.S. 12 Department of Justice account in accordance with current EFT procedures, referencing USAO File 13 Number 2001V00433 and DOJ Case Number 90-11-3-06554 and Agency Locator Code AGFS. 14 Payment shall be made in accordance with instructions provided to Settling Defendant by the 15 Financial Litigation Unit of the U.S. Attorney’s Office in the Eastern District of California following 16 lodging of the Partial Consent Decree. Any payment received by the Department of Justice after 17 4:00 p.m. Eastern Time shall be credited on the next business day. 18 19 7. At the time of payment, Settling Defendant shall send notice that payment has been made to the Forest Service and DOJ in accordance with Section XIII (Notices and Submissions). 20 VII. FAILURE TO COMPLY WITH PARTIAL CONSENT DECREE 21 8. Interest on Late Payments. If Settling Defendant fails to make any payment required by 22 Paragraph 5 by the required due date, Interest shall continue to accrue on the unpaid balance through 23 the date of payment. 24 9. Stipulated Penalty. 25 a. If any amounts due under Paragraph 5 are not paid by the required date, Settling 26 Defendant shall be in violation of this Partial Consent Decree and shall pay, as a stipulated penalty, 27 in addition to the Interest required by Paragraph 9, $500 per violation per day that such payment is 28 late. -7- 1 10. If the United States brings an action to enforce this Partial Consent Decree, Settling 2 Defendant shall reimburse the United States for all costs of such action, including but not limited 3 to costs of attorney time. 4 11. Payments made under this Section shall be in addition to any other remedies or sanctions 5 available to Plaintiff by virtue of Settling Defendant’s failure to comply with the requirements of this 6 Partial Consent Decree. 7 12. Notwithstanding any other provision of this Section, the United States may, in its 8 unreviewable discretion, waive payment of any portion of the stipulated penalties that have accrued 9 pursuant to this Partial Consent Decree. Payment of stipulated penalties shall not excuse Settling 10 Defendant from payment as required by Section VI or from performance of any other requirements 11 of this Partial Consent Decree. 12 VIII. COVENANT NOT TO SUE BY PLAINTIFF 13 13. Except as specifically provided in Section IX (Reservation of Rights by United States), 14 the United States covenants not to sue or to take administrative action against Settling Defendant 15 pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a),with regard to 16 Past Response Costs, Interim Response Costs, and Future OU1 Response Costs. This covenant shall 17 take effect upon receipt by the Forest Service of all amounts required by Section VI (Payment of 18 Response Costs) and any amount due under Section VII (Failure to Comply with Partial Consent 19 Decree). This covenant not to sue is conditioned upon the satisfactory performance by Settling 20 Defendant of its obligations under this Partial Consent Decree, including but not limited to, payment 21 of all amounts due under Section VI (Payment of Response Costs), and any amount due under 22 Section VII (Failure to Comply with Partial Consent Decree). This covenant not to sue is also 23 conditioned upon the veracity and completeness of the Financial Information and Insurance 24 Information provided to the Forest Service by Settling Defendant and the financial, insurance and 25 indemnity certification made by Settling Defendant in Paragraph 25. 26 /// 27 /// 28 /// -8- 1 If the Financial Information or the Insurance Information provided by Settling Defendant, or the 2 financial, insurance, or indemnity certification made by Settling Defendant in Paragraph 25, is 3 subsequently determined by the Forest Service to be false or, in any material respect, inaccurate, 4 Settling Defendant shall forfeit all payments made pursuant to this Partial Consent Decree and this 5 covenant not to sue and the contribution protection in Paragraph 20 shall be null and void. Such 6 forfeiture shall not constitute liquidated damages and shall not in any way foreclose the United 7 States’ right to pursue any other causes of action arising from Settling Defendant’s false or materially 8 inaccurate information. This covenant not to sue extends only to Settling Defendant and does not 9 extend to any other person. 10 IX. RESERVATION OF RIGHTS BY UNITED STATES 11 14. The United States reserves, and this Partial Consent Decree is without prejudice to, all 12 rights against Settling Defendant with respect to all matters not expressly included within the 13 Covenant Not to Sue by United States in Paragraph 13. Notwithstanding any other provision of this 14 Partial Consent Decree, the United States reserves all rights against Settling Defendant with respect 15 to: 16 17 a. liability for failure of Settling Defendant to meet a requirement of this Partial Consent Decree; 18 b. criminal liability; 19 c. liability, based on the ownership or operation of the Site by Settling Defendant 20 when such ownership or operation commences after signature of this Partial Consent Decree by 21 Settling Defendant; 22 23 d. liability arising from the past, present, or future disposal, release or threat of release of a hazardous substance, pollutant, or contaminant outside of the Site; 24 25 e. liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments; and 26 f. liability for additional operable units at the Site or the final response action. 27 /// 28 /// -9- 1 15. Notwithstanding any other provision of this Partial Consent Decree, the United States 2 reserves, and this Partial Consent Decree is without prejudice to, the right to reinstitute or reopen this 3 action, or to commence a new action seeking relief other than as provided in this Partial Consent 4 Decree, if the Financial Information or the Insurance Information provided by Settling Defendant, 5 or the financial, insurance, or indemnity certification made by Settling Defendant in Paragraph 25, 6 is false or, in any material respect, inaccurate. 7 X. COVENANT NOT TO SUE BY SETTLING DEFENDANT 8 16. Settling Defendant covenants not to sue and agrees not to assert any claims or causes of 9 action against the United States, or its contractors or employees, with respect to Past Response Costs, 10 Interim Response Costs, or Future OU1 Response Costs at the Site and this Partial Consent Decree, 11 including but not limited to: 12 a. any direct or indirect claim for reimbursement from the Hazardous Substance 13 Superfund based on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. §§ 9606(b)(2), 14 9607, 9611, 9612, or 9613, or any other provision of law; 15 b. any claim arising out of response actions at or in connection with the Site, 16 including any claim under the United States Constitution, the Tucker Act, 28 U.S.C. § 1491, the 17 Equal Access to Justice Act, 28 U.S.C. § 2412, as amended, or at common law; or 18 19 c. any claim against the United States pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C. §§ 9607 or 9613, relating to the Site. 20 Except as provided in Paragraph 18 (claims against other PRPs) and Paragraph 21 (res 21 judicata and other defenses), these covenants not to sue shall not apply in the event the United States 22 brings a cause of action or issues an order pursuant to any of the reservations set forth in Section IX 23 (Reservations of Rights by United States), other than in Paragraph 14(a)(claims for failure to meet 24 a requirement of the Partial Consent Decree) or 14(b) (criminal liability), but only to the extent that 25 Settling Defendant’s claims arise from the same response action or response costs that the United 26 States is seeking pursuant to the applicable reservation. 27 /// 28 /// - 10 - 1 17. Nothing in this Partial Consent Decree shall be deemed to constitute approval or 2 preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 3 40 C.F.R. 300.700(d). 4 18. Settling Defendant agrees not to assert any claims or causes of action and to waive all 5 claims or causes of action (including but not limited to claims or causes of action under Sections 6 107(a) and 113 of CERCLA) that it may have for all matters relating to OU-1 at the Site against any 7 other person who is a potentially responsible party under CERCLA at OU-1 at the Site. This waiver 8 shall not apply with respect to any defense, calim, or cause of action that Settling Defendant may 9 have against any person if such person asserts a claim or cause of action relating to OU-1 at the Site 10 against Settling Defendant. 11 XI. EFFECT OF SETTLEMENT 12 19. Except as provided in Paragraph 18 (claims against other PRPs), nothing in this Partial 13 Consent Decree shall be construed to create any rights in, or grant any cause of action to, any person 14 not a Party to this Partial Consent Decree. Except as provided in Paragraph 18 (claims against other 15 PRPs), each of the Parties expressly reserves any and all rights (including, but not limited to, Section 16 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands, and causes of action which it may 17 have with respect to any matter, transaction, or occurrence relating in any way to the Site against any 18 person not a Party hereto. Nothing in this Partial Consent Decree diminishes the right of the United 19 States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. §§ 9613(f)(2)-(3), to pursue any 20 such persons to obtain additional response costs or response action and to enter into settlements that 21 give rise to contribution protection pursuant to Section 113(f)(2). 22 20. The Parties agree, and by entering this Partial Consent Decree this Court finds, that this 23 settlement constitutes a judicially-approved settlement for purposes of Section 113(f)(2) of 24 CERCLA, 42 U.S.C. § 9613(f)(2), and that Settling Defendant is entitled, as of the date of entry of 25 this Partial Consent Decree, to protection from contribution actions or claims as provided by Section 26 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), or as may be otherwise provided by law for “matters 27 addressed” in this Partial Consent Decree. 28 /// - 11 - 1 The “matters addressed” in this Partial Consent Decree are the OU-1 Remedial Action, Past OU-1 2 Response Costs, Interim OU-1 Costs, and Future OU-1 Costs; provided, however, that if the United 3 States exercises rights under the reservations in Section IX (Reservation of Rights by United States), 4 other than claims for failure to comply with this Partial Consent Decree or in Paragraph 5 14(b)(Criminal liability), the “matters addressed” in this Partial Consent Decree will no longer 6 include those response costs or response actions that are within the scope of such reservations. 7 21. Settling Defendant shall, with respect to any suit or claim brought by it for matters 8 related to this Partial Consent Decree, notify the Forest Service and DOJ in writing no later than 60 9 days prior to the initiation of such suit or claim. Settling Defendant also agrees that, with respect 10 to any suit or claim for contribution brought against it for matters related to this Partial Consent 11 Decree, it will notify the Forest Service and DOJ in writing within 10 days of service of the 12 complaint or claim upon it. In addition, Settling Defendant shall notify the Forest Service and DOJ 13 within 10 days of service or receipt of any Motion for Summary Judgment, and within 10 days of 14 receipt of any order from a court setting a case for trial, for matters related to this Partial Consent 15 Decree. 16 22. In any subsequent administrative or judicial proceeding initiated by the United States for 17 injunctive relief, recovery of response costs, or other relief relating to the Site, Settling Defendant 18 shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res 19 judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any 20 contention that the claims raised by the United States in the subsequent proceeding were or should 21 have been brought in the instant case; provided, however, that nothing in this Paragraph affects the 22 enforceability of the Covenant Not to Sue by Plaintiff set forth in Section VIII. 23 XII. DOCUMENT RETENTION/CERTIFICATION 24 23. Until 10 years after the entry of this Partial Consent Decree, Settling Defendant shall 25 preserve and retain all records now in its possession or control, or which come into its possession 26 or control, that relate in any manner to response actions taken at the Site or the liability of any person 27 under CERCLA with respect to the Site, regardless of any corporate retention policy to the contrary. 28 /// - 12 - 1 24. After the conclusion of the document retention period in the preceding paragraph, 2 Settling Defendant shall notify the Forest Service and DOJ at least 90 days prior to the destruction 3 of any such records, and, upon request by the Forest Service or DOJ, Settling Defendant shall deliver 4 any such records to the Forest Service. Settling Defendant may assert that certain records are 5 privileged under the attorney-client privilege or any other privilege recognized by federal law. If 6 Settling Defendant asserts such a privilege, it shall provide Plaintiff with the following: 1) the title 7 of the record; 2) the date of the record; 3) the name and title of the author of the record; 4) the name 8 and title of each addressee and recipient; 5) a description of the subject of the record; and 6) the 9 privilege asserted. However, no records created or generated pursuant to the requirements of this 10 or any other settlement with the United States shall be withheld on the grounds that they are 11 privileged. In addition, Settling Defendant may assert business confidentiality claims covering part 12 or all of the records submitted to Plaintiff[s] under this Partial Consent Decree to the extent 13 permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 14 C.F.R. 2.203(b). Records determined to be confidential by the Forest Service will be accorded the 15 protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies 16 records when they are submitted to the Forest Service, or if the Forest Service has notified Settling 17 Defendant that the records are not confidential under the standards of Section 104(e)(7) of CERCLA 18 or 40 C.F.R. Part 2, Subpart B, the public may be given access to such records without further notice 19 to Settling Defendant. 20 21 25. Settling Defendant hereby certifies that, to the best of its knowledge and belief, after thorough inquiry, it has: 22 a. not altered, mutilated, discarded, destroyed or otherwise disposed of any records, 23 reports, or other information relating to its potential liability regarding the Site since notification of 24 potential liability by the United States or the filing of suit against it regarding the Site, and that it has 25 fully complied with any and all Forest Service requests for information regarding the Site and 26 Settling Defendant’s financial circumstances pursuant to Sections 104(e) and 122(e) of CERCLA, 27 42 U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927; and 28 /// - 13 - 1 b. submitted to the Forest Service Financial Information that fairly, accurately, and 2 materially sets forth its financial circumstances, and that those circumstances have not materially 3 changed between the time the Financial Information was submitted to the Forest Service and the time 4 Settling Defendant executes this Partial Consent Decree. 5 XIII. NOTICES AND SUBMISSIONS 6 26. Whenever, under the terms of this Partial Consent Decree, notice is required to be given 7 or a document is required to be sent by one party to another, it shall be directed to the individuals 8 at the addresses specified below, unless those individuals or their successors give notice of a change 9 to the other Parties in writing. Written notice as specified herein shall constitute complete 10 satisfaction of any written notice requirement of the Partial Consent Decree with respect to the 11 United States, the Forest Service, and Settling Defendant, respectively. 12 As to the United States: 13 15 Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice (DJ # 90-11-3-06554) P.O. Box 7611 Washington, D.C. 20044-7611 16 As to the Forest Service: 17 Dennis Geiser Regional Environmental Engineer Pacific Southwest Region, Region 5 1323 Club Drive Vallejo, California 94592 14 18 19 20 21 Gail Bakker, C.Hg., P.G. Tahoe National Forest 631 Coyote Street Nevada City, CA 95959 22 23 24 Rose Miksovsky Staff Attorney Office of the General Counsel 33 New Montgomery St., 17th Floor San Francisco, California 94150 25 26 /// 27 /// 28 /// - 14 - 1 As to Settling Defendant: 2 Jeff Tillman, President South Tahoe Refuse 2140 Ruth Avenue South Lake Tahoe, CA 96150 3 4 5 Jeffrey K. Rahbeck, Esq. P.O. Box 435 Zephyr Cove, NV 89448 6 7 XIV. RETENTION OF JURISDICTION 8 9 27. This Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of this Partial Consent Decree. 10 XV. INTEGRATION/APPENDICES 11 28. This Partial Consent Decree and its appendices constitute the final, complete and 12 exclusive understanding between the Parties with respect to the settlement embodied in this Partial 13 Consent Decree. The Parties acknowledge that there are no representations, agreements or 14 understandings relating to the settlement other than those expressly contained in this Partial Consent 15 Decree. The following appendices are attached to and incorporated into this Partial Consent Decree: 16 “Appendix A” is a list of the financial documents submitted to the Forest Service by Settling 17 Defendant; 18 “Appendix B” is a map of the Site. 19 XVI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 20 29. This Partial Consent Decree shall be lodged with the Court for a period of not less than 21 30 days for public notice and comment. The United States reserves the right to withdraw or withhold 22 its consent if the comments regarding the Partial Consent Decree disclose facts or considerations 23 which indicate that this Partial Consent Decree is inappropriate, improper, or inadequate. Settling 24 Defendant consents to the entry of this Partial Consent Decree without further notice. 25 30. If for any reason this Court should decline to approve this Partial Consent Decree in the 26 form presented, this Partial Consent Decree is voidable at the sole discretion of any party and the 27 terms of the Partial Consent Decree may not be used as evidence in any litigation between the 28 Parties. - 15 - 1 XVII. SIGNATORIES/SERVICE 2 31. Each undersigned representative of Settling Defendant to this Partial Consent Decree and 3 the Deputy Section Chief of the Environmental Enforcement Section, Environment and Natural 4 Resources Division of the United States Department of Justice certifies that he or she is authorized 5 to enter into the terms and conditions of this Partial Consent Decree and to execute and bind legally 6 such Party to this document. 7 32. Settling Defendant hereby agrees not to oppose entry of this Partial Consent Decree by 8 this Court or to challenge any provision of this Partial Consent Decree, unless the United States has 9 notified Settling Defendant in writing that it no longer supports entry of the Partial Consent Decree. 10 33. Settling Defendant shall identify, on the attached signature page, the name and address 11 of an agent who is authorized to accept service of process by mail on its behalf with respect to all 12 matters arising under or relating to this Partial Consent Decree. Settling Defendant hereby agrees 13 to accept service in that manner and to waive the formal service requirements set forth in Rule 4 of 14 the Federal Rules of Civil Procedure and any applicable local rules of this Court, including but not 15 limited to, service of a summons. 16 XVIII. FINAL JUDGMENT 17 34. Upon approval and entry of this Partial Consent Decree by the Court, this Partial Consent 18 Decree shall constitute the final judgment between the United States and Settling Defendant. The 19 Court finds that there is no just reason for delay and therefore enters this judgment as a final 20 judgment under Fed. R. Civ. P. 54 and 58. 21 22 IT IS SO ORDERED. Dated: May 12, 2010 23 24 25 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 26 27 28 - 16 - 1 2 3 THE UNDERSIGNED PARTIES enter into this Partial Consent Decree in the matter of United States v. El Dorado County, California, et al., Civil Action No. 2:01-cv-1520 MCE GGH, relating to the Meyers Landfill Site. FOR THE UNITED STATES OF AMERICA 4 BENJAMIN B. WAGNER United States Attorney Eastern District of California 5 6 7 Date:________ 8 __/S/ Ellen Mahan_____________ ELLEN MAHAN Deputy Chief Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice 9 10 11 12 13 Date: ___2/24/10__ 14 15 ____/S/ Karl J. Fingerhood______ KARL J. FINGERHOOD Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division 16 17 FOR THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE 18 19 20 21 22 Dated:__2/22/10__ ____/S/Randy Moore_____ RANDY MOORE Regional Forester U.S. Department of Agriculture Forest Service 1323 Club Drive Vallejo, California 94592 23 24 25 26 27 28 - 17 - 2 THE UNDERSIGNED PARTIES enter into this Partial Consent Decree in the matter of United States v. El Dorado County, California, et al., Civil Action No. 2:01-cv-1520 MCE GGH, relating to the Meyers Landfill Site. 3 FOR SOUTH TAHOE REFUSE COMPANY 1 4 Date: 11/5/09 ___/S/ Jeff Tillman__________________ JEFF TILLMAN President, South Tahoe Refuse Company Date:__11/5/09___ _____/S/ John D. Marchini______________ JOHN D. MARCHINI Secretary, South Tahoe Refuse Company Date:___11/5/09__ ______/S/Gloria Lehman______________ GLORIA LEHMAN Treasurer, South Tahoe Refuse Company 5 6 7 8 9 10 11 12 13 14 15 Agent Authorized to Accept Service on Behalf of Above-signed Party: Name: Jeffrey K. Rahbeck, Esq. Title: Corporate Attorney Address: P.O. Box 435, Zephyr Cove, NV 89448 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -
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