DALE S. FISCHER, District Judge.
1. Plaintiff the State of California Department of Toxic Substances Control ("DTSC" or "Plaintiff") filed a complaint ("Complaint") in this matter pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 and the California Hazardous Substances Account Act ("HSAA"), California Health and Safety Code § 25300 against Defendants World Cleaners Inc. ("World Cleaners") and 538 West 5th Street, San Pedro, Inc. ("538, Inc.," collectively "Settling Defendants").
2. In the Complaint, DTSC alleges, in relevant part, the following:
3. DTSC is conducting Response Actions with respect to the Site as necessary to remove and remedy the hazardous substances released and/or threatened to be released at and from the Site. DTSC's Response Actions include, but are not limited to: investigation; removal/remediation actions; enforcement/cost recovery; oversight; public participation; and compliance with the California Environmental Quality Act. DTSC's Response Actions through December 2018 were not inconsistent with the National Contingency Plan ("NCP"), 40 C.F.R. Part 300.
4. As of January 2018, DTSC's incurred Response Costs related to the Site exceed $400,000.
5. DTSC will continue to incur Response Costs related to the Site. DTSC reserves all its rights in connection with such costs. Settling Defendants reserve all their rights to object to such costs.
6. Defendants World Cleaners and 538, Inc. filed answers to the Complaint on October 21, 2016.
7. On October 2, 2017, the Court issued an "Order Granting Motion for Summary Judgment (Dkt. No. 30)" (ECF No. 58) (hereinafter "Order Granting Summary Judgment"), which found that Settling Defendants were jointly and severally liable for DTSC's Response Costs. The Court also found that DTSC is "entitled to a declaration that Defendants are liable for future Response Costs and damages. 42 U.S.C. § 9613(g)(2)." Id. Further, the Court "reviewed the 2008 Remedial Action Order issued by Plaintiff to Defendants and finds that it is reasonable and should be incorporated into a permanent injunction of this Court with the exception of § 6.22." Id. (Paragraph 6.22 of the 2008 Remedial Action Order allows DTSC to unilaterally modify the order.)
8. DTSC and Settling Defendants ("the Parties") agree, and this Court, by entering this Consent Decree, finds, that this Consent Decree has been negotiated by the Parties in good faith, settlement of this matter will avoid expensive, prolonged and complicated litigation between the Parties, and this Consent Decree is fair, reasonable, in the public interest and consistent with the purpose of CERCLA.
9. The Court has subject matter jurisdiction over the matters alleged in this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1367(a) and CERCLA, section 113(b), 42 U.S.C. § 9613(b), and personal jurisdiction over each of the Parties. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b) and CERCLA section 113(b), 42 U.S.C. § 9613(b). Solely for the purposes of this Consent Decree and the underlying Complaint, Settling Defendants waive all objections and defenses that Settling Defendants may have to the jurisdiction of the Court or to venue in this district.
10. The Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of this Consent Decree if necessary.
11. The Court's Order Granting Summary Judgment, including the declaration of liability and permanent injunction, is attached to this Consent Decree as Exhibit A and incorporated herein.
12. This Consent Decree resolves Settling Defendants' liability for Response Costs DTSC incurred before January 1, 2018 and for any Response Costs associated with the entry of this Consent Decree that DTSC incurs between January 1, 2018 and the Effective Date (i.e. negotiating, issuing public notice or seeking judicial entry). For the avoidance of doubt, this Consent Decree does not resolve Response Costs DTSC incurs after January 1, 2018, reviewing, and overseeing the implementation of, the Addendum to Remedial Investigation/Feasibility Study Workplan, 90-Day Dual-Phase Extraction Pilot Test, dated December 29, 2017, that Defendants submitted to DTSC on December 31, 2017. Settling Defendants reserve all their rights to object to such costs. DTSC agrees to that resolution in exchange for consideration from Settling Defendants, including payment by Settling Defendants to reimburse a portion of DTSC's Response Costs already incurred in connection with releases and/or threatened releases of hazardous substances at and/or from the Site.
13. Nothing in this Consent Decree shall be construed as an admission by Settling Defendants of any issue of law or fact or of any violation of law, beyond those issues of fact and law established in the Order Granting Summary Judgment, ECF No. 48. Except as otherwise provided by this Consent Decree, this Consent Decree shall not prejudice, waive or impair any right, remedy or defense that Settling Defendants may have in any other or further legal proceeding.
14. Settling Defendants consent to, and shall not challenge, entry of this Consent Decree, the terms of this Consent Decree, or this Court's jurisdiction to enforce this Consent Decree. Settling Defendants further consent to the Court's entry of the Proposed Order attached to this Consent Decree as Exhibit B.
15. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment between and among the Parties.
16. Unless otherwise expressly provided herein, terms used in this Consent Decree that are defined in CERCLA, in the HSAA or in regulations promulgated under CERCLA shall have the meaning assigned to them therein. Whenever terms listed below are used in this Consent Decree, the definitions below shall apply.
17. "Completion of the Remediation" shall mean when DTSC gives the written notice specified in Paragraph 6.24 of the 2008 Remedial Action Order.
18. "Day" shall mean a calendar day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal or State holiday, the period shall run until the close of business of the next Day.
19. "Order Granting Summary Judgment" shall mean the "Order GRANTING Motion for Summary Judgment (Dkt. No. 30)" that the Court issued on October 2, 2017 (ECF No. 58).
20. "DTSC" shall mean the State of California Department of Toxic Substances Control, and its predecessors and successors. DTSC is a public agency of the State of California organized and existing under and pursuant to California Health and Safety Code § 58000 et seq. Under California law, DTSC is the state agency responsible for determining whether there has been a release and/or threatened release of hazardous substances into the environment, and for determining the actions to be taken in response thereto.
21. "Effective Date" shall mean the date the Court enters an Order approving this Consent Decree.
22. "Fair Market Value" shall have the meaning specified in California Code of Civil Procedure section 1263.320.
23. "Parties" shall mean DTSC and Settling Defendants.
24. "Plaintiff" shall mean DTSC.
25. "Property" shall mean the real property, at 538 West 5th Street, in San Pedro, Los Angeles County, California, identified as Assessor's Parcel Number 7451-027-004.
26. "Response Actions" shall mean all of "removal," "remedial" or "response" actions as those terms are defined by CERCLA § 101, 42 U.S.C. § 9601, related to the release and/or threatened release of hazardous substances at or from the Site, including into soil and groundwater.
27. "Response Costs" shall mean all costs of "removal," "remedial action," or "response" as those terms are defined by CERCLA § 101, 42 U.S.C. § 9601, related to the release and/or threatened release of hazardous substances at or from the Site, including into soil and groundwater.
28. "Settling Defendants" shall mean World Cleaners Inc. and 538 West 5th Street, San Pedro, Inc.
29. "Site" shall mean the Property, however for purposes of this Consent Decree, the Site includes the vertical and areal extent of the hazardous substance contamination that is or has been present at, beneath, and/or from the Property, including in the soil and/or groundwater.
30. World Cleaners or its designee shall pay DTSC $100,000 within thirty (30) Days of the Effective Date.
31. Sale of the Property:
32. At the time designated in section 5.13 of the 2008 Remedial Action Order, 538, Inc. will promptly record a land-use covenant to be provided by DTSC that shall limit use of the Property to commercial or industrial and protects the ongoing cleanup activities.
33. Settling Defendant's payment obligations shall be deemed to have been satisfied in full upon: Delivery of the payments due under Paragraphs 30 and 31. The payments specified in Paragraphs 30 and 31 shall be made by electronic funds transfer certified or cashier's check made payable to Cashier, California Department of Toxic Substances Control, and shall bear on its face both the docket number of this proceeding and the phrase "Site Code 401317."
34. This Consent Decree is conditioned upon full execution of the Settling Defendants' respective obligations set forth in Paragraphs 30 through 32 and the Settling Defendants' compliance with the Order Granting Summary Judgment. If these conditions are not met then, at the discretion of DTSC and with reasonable notice to Settling Defendants, this Consent Decree shall be voidable. However, if the failure to comply is limited to one Settling Defendant's failure to comply with its obligations under Paragraphs 30 through 32, then, at DTSC's discretion, this Consent Decree is voidable against that Settling Defendant only and DTSC may then proceed to litigate the Complaint against that Settling Defendant. Nothing in this paragraph shall preclude DTSC from enforcing any part of this Consent Decree.
35. Within thirty (30) Days of the Effective Date, Settling Defendants shall have provided to DTSC copies of any and all records, documents, and information within its possession or control, or that of its agents, relating to: (a) the ownership, operation or control of the Site; (b) the purchase, storage, use, handling, generation, treatment, transportation, or disposal of hazardous substances in connection with the Site; (c) releases and/or threatened releases of hazardous substances at or from the Site, including the soil and groundwater; and (d) removal, remedial or Response Actions conducted by any person at the Site. If Settling Defendants believe they produced all such documents in the course of this litigation, they may comply with this Paragraph by sending DTSC a signed letter representing and warranting that they have already produced all information subject to this Paragraph. The letter shall identify each day of production. Sending such a letter shall not absolve Settling Defendants of their obligations under Paragraph 36.
36. If after the Effective Date, Settling Defendants obtain or discover any records, documents or information described in Paragraph 35 not previously provided to DTSC, Settling Defendants agree to provide DTSC with copies of the additional records, documents or information within ten (10) Days of the date Settling Defendants discover or obtain the records, documents or information.
37. Except as expressly provided in Section IX (DTSC's Reservation of Rights) of this Consent Decree, DTSC covenants not to sue Settling Defendants pursuant to CERCLA or the HSAA to: (a) recover Response Costs related to the Site that DTSC incurred before January 1, 2018, or that DTSC incurs between January 1, 2018, and the Effective Date (i.e. negotiating, issuing public notice or seeking judicial entry), including Response Costs associated with groundwater remediation relating to any hazardous substances released at the Site; or (b) require Settling Defendants to conduct Response Actions, including removal or remedial actions, related to the release and/or threatened release of hazardous substances at or from the Site, including the soil and groundwater. For the avoidance of doubt, this Covenant Not to Sue does not extend to Response Costs DTSC incurs after January 1, 2018, reviewing, and overseeing the implementation of, the Addendum to Remedial Investigation/Feasibility Study Workplan, 90-Day Dual-Phase Extraction Pilot Test, dated December 29, 2017 that Defendants submitted to DTSC on December 31, 2017. Settling Defendants reserve all their rights to object to such costs. This Covenant Not to Sue is conditioned upon the complete and satisfactory performance by Settling Defendants of all their obligations under this Consent Decree, including the obligations imposed by the Order Granting Summary Judgment. With reasonable notice to Settling Defendants, this Covenant Not to Sue shall be revocable and thereafter deemed not effective if the Settling Defendants fail to fully perform their obligations stated in the Order Granting Summary Judgment or as to a Settling Defendant(s) who fails to comply with the requirements of Paragraphs 30 through 32 and 35 through 36 of this Consent Decree. With reasonable notice to Settling Defendants, nothing in this paragraph shall preclude DTSC from enforcing any part of this Consent Decree.
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43. Settling Defendants covenant not to sue DTSC, and agree not to assert any affirmative claims or causes of action against DTSC or any DTSC contractors or employees that arise out of the transaction or occurrence that is the subject matter of the DTSC's complaint, or for any injuries, losses, costs, or damages caused or incurred as a result of the performance of the requirements of this Consent Decree or DTSC's Response Actions at the Site.
44. In any legal proceedings that DTSC may initiate against Settling Defendants for non-compliance with this Consent Decree, Settling Defendants may raise any and all defenses that Settling Defendants deem to be relevant to the issue of whether or not they have complied with the terms of the Consent Decree.
45. With regard to claims for contribution against Settling Defendants for "Matters Addressed" in this Consent Decree, the Parties agree, and the Court finds as follows:
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47. The protection provided for in this Section XI is conditioned upon compliance by Settling Defendants with its obligations under the Order Granting Summary Judgment and Paragraphs 30 through 32 of this Consent Decree.
48. Nothing in this Consent Decree limits or impairs the right of DTSC to pursue any other person for unrecovered Response Costs incurred by DTSC.
49. Notification to or communication among the Parties as required or provided for in this Consent Decree shall be addressed as follows:
For DTSC:
For Settling Defendant World Cleaners:
For Settling Defendant 538, Inc.:
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58. This Consent Decree shall be lodged with the Court for a period of not less than thirty (30) Days. The Consent Decree also is subject to a public comment period of not less than thirty (30) Days. DTSC may modify or withdraw its consent to this Consent Decree if comments received during the public comment period disclose facts or considerations that indicate that this Consent Decree is inappropriate, improper or inadequate. Settling Defendants consent to the entry of this Consent Decree without further notice.
59. If, for any reason, the Court declines to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of any Party and the terms of the Consent Decree may not be used as evidence in any litigation between the Parties.
60. Each signatory to this Consent Decree certifies that he or she is fully authorized by the Party he or she represents to enter into the terms and conditions of this Consent Decree, to execute it on behalf of the party represented, and to legally bind that party to all the terms and conditions of this Consent Decree.
