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United States, et al. v. andruss Family Trust

April 7, 2011

UNITED STATES, ET AL.
v.
ANDRUSS FAMILY TRUST, ET AL.



The opinion of the court was delivered by: The Honorable Audrey B. Collins

CIVIL MINUTES - GENERAL

Present:

Angela Bridges Not Present N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiff: Attorneys Present for Defendants:

None None

Proceedings: ORDER Re: Intervenors' Request for Discovery (In Chambers)

Pending before the Court is a Renewed Motion to Enter Proposed Consent Decree, filed on October 8, 2010, by Plaintiffs United States of America, on behalf of the U.S. Environmental Protection Agency ("EPA"), and the California Department of Toxic Substances (collectively "Plaintiffs"). (Docket No. 64.) Before the Court can review and approve that proposed consent decree, it must resolve whether to allow Intervenors in this case to conduct discovery in order to challenge the consent decree. (Docket No. 69.) The Court finds this matter appropriate for resolution without further oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons below, the Court DENIES the request for discovery. As noted at the end of this Order, the Court will order the parties to set a briefing and hearing schedule for the pending matters.

BACKGROUND

In this CERCLA case,*fn1 the Court had previously denied a motion to intervene by several entities in order to challenge a proposed consent decree. Those parties appealed and the Ninth Circuit reversed, allowing them to intervene.*fn2 Following remand, the Court entered a case management order, permitting the following entities to intervene in this case in order to challenge that consent decree: Aerojet General Corp.; TDY Industries, Inc.; Astro Seal, Inc.; Mary Brkich; Joan Linderman; M&T Company; Don Tonks; Roy Tonks; Tonks Properties; Mammoet Western, Inc.; Time Realty Investments, Inc.; Del Ray Industrial Enterprises, Inc.; Art Weiss, Inc.; and Art Weiss (collectively "Intervenors"). (Docket No.62.) The Court also directed Plaintiffs to file a renewed motion to enter the consent decree and allowed Intervenors to file a brief supporting any request for discovery in order to challenge the consent decree.

As a result, on October 29, 2010, Intervenors (with the exception of Don Tonks, Roy Tonks, and Tonks Properties), filed a brief in support of a request to conduct discovery on certain topics related to their ability to challenge the consent decree. (Docket No. 69.) Initially, Intervenors sought to depose Bella Dizon, the South El Monte Operable Unit ("SEMOU") Superfund Manager from 1996 through 2003, and sought the production of documents on topics related to the EPA's knowledge surrounding a July 13, 2002 settlement agreement with a Group of 13 (or "G13") potentially responsible parties ("PRPs"). Intervenors also wished to propound interrogatories on two individuals who submitted declarations in support of Plaintiffs' motion to enter the consent decree in lieu of deposing them.

Both Plaintiffs and the "Group of 10" Settling Defendants (the "G10 Settling Defendants")*fn3 responded on December 3, 2010, opposing the request for discovery. (Docket Nos. 72, 73.) In response to Intervenors' requests, Plaintiffs prepared a declaration from Bella Dizon addressing most of the issues raised by Intervenors related to the G13 agreement. (Pl. Response 2, Ex. 1.) Plaintiffs also pointed out that Intervenors failed to identify what clarification was needed in the declarations and documentation supporting the consent decree. From Plaintiffs' perspective, then, Intervenors were improperly seeking to test the veracity of the individuals subject to the discovery requests and the only remaining issues were legal ones that did not require discovery. The G10 Settling Defendants further pointed out that the discovery requests would likely trigger privilege issues and potential discovery disputes, further delaying the settlement of their liability, frustrating one of the primary purposes of CERCLA: encouraging quick settlements in order to devote time and money to cleanup efforts instead of protracted litigation.

After engaging in discussions to resolve the discovery issues, a sub-set of Intervenors filed a reply brief on March 23, 2011, narrowing the issues to two topics for discovery*fn4 (1) EPA's efforts to comply with its own guidance documents regarding orphan shares; and (2) EPA's preliminary and revised allocations for J.A.B. Holdings, Inc. ("JAB"). (Docket No. 88.) At a status conference on March 28, 2011, the Court heard oral arguments from Plaintiffs and permitted ...


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