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United States v. Shell Oil Co.

July 10, 2009

UNITED STATES OF AMERICA, ET AL., PLAINTIFF,
v.
SHELL OIL COMPANY, ET AL., DEFENDANT.



The opinion of the court was delivered by: Robert J. Kelleher Senior United States District Judge

PARTIAL CONSENT DECREE BETWEEN PLAINTIFF STATE OF CALIFORNIA AND THE UNITED STATES AS COUNTERCLAIM DEFENDANT REGARDING STATE RESPONSE COSTS FOR THE PERIOD OF OCTOBER 1990 THROUGH JUNE 2008 AND [PROPOSED] ORDER Date: TBD Time: TBD Courtroom: Roybal 1439 Judge: Hon. Robert J. Kelleher

I. BACKGROUND

A. The government plaintiffs in this action, the United States of America ("United States"), on behalf of the Administrator of the United States Environmental Protection Agency, and the State of California, ex rel., California Department of Health Services, Hazardous Substance Account, and Hazardous Substance Cleanup Fund ("State"), filed a complaint in this matter pursuant to Sections 107 and 113(g)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9607 and 9613(g)(2), as amended ("CERCLA"), on February 1, 1991.

B. The complaint seeks, among other relief, reimbursement of response costs incurred, and a declaration of liability for response costs to be incurred, by the United States and State for response actions in connection with the release or threatened release of hazardous substances at the McColl Superfund Site in Fullerton, Orange County, California ("the Site").

C. The release or threatened release of hazardous substances at or from the Site has caused the United States and the State to incur response costs as defined by Section 101(25) of CERCLA, 42 U.S.C. § 9601(25).

D. On September 28, 1993, this Court granted the United States' and State's Motion for Summary Judgment and thereby held Shell Oil Company, Union Oil Company of California, Atlantic Richfield Company, and Texaco, Inc. ("Oil Company Defendants") liable under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a). The United States Court of Appeals for the Ninth Circuit affirmed this judgment on June 28, 2002 (Docket # 505).

E. On December 12, 1994, the Court entered a consent decree entitled "Partial Consent Decree Among Plaintiffs and Oil Company Defendants Regarding Certain Cost Claims and Order" ("1994 Consent Decree") (Docket # 270). Pursuant to the 1994 Consent Decree, the Oil Company Defendants paid $4,752,000.00 to resolve the State's claim for Past State Response Costs (as defined in Section IV herein) as well as $13,248,000.00 to resolve he United States' claim, as a co-plaintiff, for certain past response costs incurred by the governments at the Site, which generally consisted of costs incurred by the United States and the State during the 1980's and a portion of 1990. In Section VII of the 1994 Consent Decree, the parties to the decree acknowledge that the Court's September 28, 1993, judgment and order, described above in Section I(D), constitutes a declaratory judgment pursuant to Section 113(g)(2) of CERCLA in favor of the United States and the State against the "Settling Defendants" (the Oil Company Defendants) for "Ongoing Response Costs," as defined in the 1994 Consent Decree. In the 1994 Consent Decree, the parties further acknowledge the rights of the United States and the State to seek to recover these Ongoing Response Costs in this case and the rights of the Oil Company Defendants to challenge such costs.

F. On September 18, 1995, this Court adjudged the United States, in its capacity as a counterclaim defendant, to be a liable party at the Site pursuant to Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3). On June 28, 2002, the United States Court of Appeals for the Ninth Circuit affirmed this judgment with respect to wastes resulting from the production of benzol in United States, et al. v. Shell Oil Company, et al., 294 F.3d 1045, 1059-1061 (9th Cir. 2002). Two petitions for certiorari filed by the Oil Company Defendants were denied by the Supreme Court of the United States on January 13, 2003.

G. The Oil Company Defendants and the United States subsequently stipulated that the United States' share of costs at the McColl Site, based on the United States' liability pursuant to CERCLA for benzol wastes at the Site, is 6.25%. Joint Request For Status Conference (Aug. 12, 2003) at 1-2 n.1 (Docket #507). On October 29, 2003, this Court denied the request of the Oil Companies to conduct further allocation proceedings regarding the non-benzol wastes at the Site and associated response costs (Docket # 510). The United States is responsible under CERCLA for reimbursing the Oil Companies for the United States' 6.25% share of the costs paid to the State pursuant to the 1994 Consent Decree.

H. In addition to the Past State Response Costs, the State has incurred and paid substantial additional costsin connection with the McColl Site including but not limited to the costs defined in Section IV(3)(i) of this Consent Decree as "State Response Costs for the Period of October 1990 through June 2008." The total amount of costs claimed by the State as State Response Costs for the Period of October 1990 through June 2008 is $6,085,565.35. These State-incurred costs constitute a subset of the "Ongoing Response Costs" defined in the 1994 Consent Decree, but do not include any response costs incurred by the State in connection with the Site after June 30, 2008.

I. The State and the United States agree that pursuant to CERCLA and prior proceedings in this case, the State is entitled to recover from the United States the portion of State Response Costs for the Period of October 1990 through June 2008 that constitutes the United States' allocable share of such costs incurred by the State in connection with the release or threatened release of hazardous substances at the Site. After conducting negotiations, the State and the United States have agreed to resolve the United States' allocable share of liability under CERCLA for State Response Costs for the Period of October 1990 through June 2008 with a settlement payment to the State in the amount of $361,330.00.

J. The State and the United States agree, and this Court finds by approving and entering this Consent Decree, that settlement of this portion of this case between the State and the United States will avoid further prolonged and complicated litigation and that this Consent Decree is fair, reasonable, and in the public interest.

THEREFORE, with the consent of the Parties to this Consent Decree, it is ORDERED, ADJUDGED, AND DECREED:

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.§§ 1331 and 1345, and 42 U.S.C. §§ 9607 and 9613 (b). This Court also has personal jurisdiction over the Settling Federal Defendants. Solely for the purposes of this Consent Decree, the Settling Federal Defendants waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District and shall not challenge the entry of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.

III. PARTIES BOUND

2. This Consent Decree is binding upon the United States and the State, and upon their successors and assigns. Any change in ownership or corporate or other legal status, including but not limited to any transfer of assets or real or personal property, shall in no way alter the status or responsibilities of the United States or the Settling Federal Defendants under this Consent Decree.

IV. DEFINITIONS

3. Unless otherwise expressly provided herein, terms used in this Consent Decree which are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Consent Decree the following definitions shall apply:

a. "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.

b. "Consent Decree" shall mean this Decree.

c. "Day" shall mean a calendar day. In computing any period of time under this Consent Decree, when the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run ...


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