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State of California Dep't of Toxic Substances Control v. Isaacson

August 11, 2009

STATE OF CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, ET AL., PLAINTIFFS,
v.
W. DANIEL ISAACSON, ET AL., DEFENDANTS.



AND RELATED CLAIMS.

CONSENT DECREE BETWEEN PLAINTIFFS AND DEFENDANTS W. DANIEL ISAACSON AND DONNA ISAACSON

INTRODUCTION

1.

Plaintiffs the State of California Department of Toxic Substances Control and the Hazardous Substances Account ("Plaintiffs") have filed a complaint in this matter pursuant to section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq. ("CERCLA"), against several parties, including defendant W. Daniel Isaacson and defendant Donna Isaacson (collectively "the Isaacsons"). Plaintiffs' complaint seeks the recovery of costs incurred or to be incurred by Plaintiffs in responding to releases and/or threatened releases of hazardous substances at or from the property located at 617 East 56th Street, Los Angeles, California 90011 ("Hard Chrome Property"). The complaint also seeks declaratory relief under CERCLA section 113(g)(2), alleging that the Isaacsons are jointly and severally liable for future response costs to be incurred by Plaintiffs to address the extent of releases of hazardous substances at and from the Hard Chrome Property ("Hard Chrome Site" or "Site").

2. The Isaacsons filed counterclaims against Plaintiffs asserting causes of action for cost recovery under CERCLA sections 107 and 113, contribution under California Health and Safety Code section 25363, damages under common law theories of negligence, equitable contribution, equitable indemnity, and declaratory relief.

3. Plaintiff State of California Department of Toxic Substances Control ("DTSC") is the California state agency with primary jurisdiction over the actions taken in response to the release and threatened release of hazardous substances at the Site.

4. Plaintiffs' complaint alleges, in relevant part, that:

a. The Isaacsons owned and/or operated the Hard Chrome Property from approximately 1977 to the present.

b. The Isaacsons were owners and/or operators of the Hard Chrome Property at the time hazardous substances were released into the environment at or from the Hard Chrome Property, including into the soil and groundwater.

c. DTSC began to investigate the release and threatened release of hazardous substances at the Hard Chrome Site in 1992. Investigation of the Site by DTSC as well as by consultants for various potentially responsible parties established that hazardous substances, including chromium, hexavalent chromium, trichloroethylene ("TCE"), perchloroethylene ("PCE") and lead, were present in the soil and/or groundwater at the Site.

d. On or about March 7, 1997, DTSC issued an Imminent and Substantial Endangerment Determination and Remedial Action Order ("ISE Order") relating to the Site, ordering several potentially responsible parties, including the Isaacsons, to investigate and remediate the Site.

e. The Isaacsons failed to complete the investigation and remediation of releases of hazardous substances at the Site as required by the ISE Order.

f. Removal and remedial action was and is necessary to remove and remedy the hazardous substances released and threatened to be released at and from the Hard Chrome Property.

g. DTSC has incurred, and will continue to incur, response costs conducting and overseeing activities in response to the release and/or threatened release of hazardous substances at the Site, including contamination of the soil and groundwater. Those activities have included and will include: soil and groundwater sampling at the Site; interim remedial measures; preparation of the Remedial Investigation Report, the Feasibility Study Report and the draft and final Remedial Action Plan; remediation of the Site; and ongoing operation and maintenance of the Site.

h. Response Costs related to the Site continue to be incurred by Plaintiffs, and substantial Response Costs remain unpaid.

i. The Isaacsons are jointly and severally liable under CERCLA for all of Plaintiffs' past and future Response Costs incurred at the Site.

5. As of December 31, 2008, Plaintiffs' unreimbursed Response Costs incurred at the Site are in excess of $3.4 million. Plaintiffs will continue to incur future Response Costs conducting or overseeing removal and/or remedial activities in response to the release and threatened release of hazardous substances at the Site.

6. DTSC has reviewed the financial information submitted by the Isaacsons to determine whether the Isaacsons are financially able to pay response costs incurred and to be incurred at the Hard Chrome Site. The Isaacsons affirm that the financial information provided to DTSC is true and correct. In entering into this settlement, Plaintiffs have relied on the financial information provided by the Isaacsons.

7. Plaintiffs and the Isaacsons ("the Parties") agree to settle this action without further litigation and without the admission or adjudication of any issue of fact or law.

8. 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, that settlement of this matter will avoid prolonged and complicated litigation, and that this Consent Decree is fair, reasonable, and in the public interest.

THEREFORE, the Court, with the consent of the Parties to this Consent Decree, hereby ORDERS, ADJUDGES, and DECREES, as follows:

I. JURISDICTION

1. The Court has subject matter jurisdiction over the matters alleged in this action pursuant to 28 U.S.C. section 1331 and 42 U.S.C. section 9613(b) and personal jurisdiction over each of the Parties. Venue is appropriate in this district pursuant to 28 U.S.C. section 1391(b) and 42 U.S.C. section 9613(b). The Court has the authority to enter this Consent Decree as an order of the Court.

II. PARTIES BOUND

2. This Consent Decree shall apply to, be binding upon, and inure to the benefit of the Parties, and their representatives, successors, heirs, legatees, and assigns.

III. SETTLEMENT OF DISPUTED CLAIMS

3. This Consent Decree resolves the alleged liability of the Isaacsons under section 107 of CERCLA, 42 U.S.C. section 9607, in exchange for consideration including payments by Mr. Isaacson to reimburse a portion of Plaintiffs' response costs incurred and to be incurred at or in connection with the Site.

4. By entering into this Consent Decree, the Parties resolve Plaintiffs' claims against the Isaacsons with respect to the releases and/or threatened releases of hazardous substances at the Site, including the groundwater. The Parties also resolve the Isaacsons' counterclaims against the Plaintiffs.

5. This Consent Decree represents a fair, reasonable and equitable settlement of Plaintiffs' ...


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