CONTRACT 4710 Settlement Agreement4710
,3 oEDSTgr�o. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
A Y�3 REGION 9
a 75 Hawthorne Street
San Francisco, CA 94105 -3901
PH
IN THE MATTER OF: U.S. EPA Docket No. 99 -02(h)
Casmalia Disposal Site
Santa Barbara County, California
Proceeding under Section 122(g) of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. § 9622(g)
[PROPOSED]
ADMINISTRATIVE
SETTLEMENT AGREEMENT
AND ORDER ON CONSENT —
DE MINIMIS CONTRIBUTORS
TABLE OF CONTENTS
SECTION
PAGE
I.
JURISDICTION .......................................................................................
3
STATEMENT OF PURPOSE ...................................
4
DEFINITIONS.........................................................................................
5
IV.
STATEMENT OF FACTS ....................................................................... 9
V.
DETERMINATIONS ..............................................................................
13
VI.
SETTLEMENT AGREEMENT AND ORDER ......... .............................14
VII.
SETTLEMENT OPTIONS ...................................................................... 14
VIII.
PAYMENT .............................................................................................
20
Ix.
FAILURE BY SETTLING PARTIES TO MAKE TIMELY
PAYMENTS............................................................. ..................
22
X.
CERTIFICATION OF SETTLING PARTY ................ .............................24
XI.
COVENANTS AND RESERVATION OF RIGHTS BY
U.S. EPA AND FEDERAL TRUSTEES ................... .............................24
x1l.
COVENANT BY SETTLING PARTIES NOT TO SUE ..........................33
v",
EFFECT OFF RIBUTI ION
PROTECTION......................................................................... .....
34
xiv.
PARTIES BOUND .................................................................................
37
xv.
INTEGRATION/APPENDICES ..............................................................
37
XV1.
PUBLIC COMMENT ..............................................................................
38
xvil.
ATTORNEY GENERAL APPROVAL ........................ .............................38
xix.
EFFECTIVE DATE ................................................................................
38
Casmalia Disposal Site EPA Region IX AOC No. 99-02(h)
I. JURISDICTION
1. This Administrative Settlement Agreement and Order on Consent
( "Settlement Agreement ") is issued pursuant to the authority vested in the President of
the United States by Section 122(g)(4) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ( "CERCLA "), 42 U.S.C. §
9622(g)(4), to reach settlements in actions under sections 106 and 107 of CERCLA, 42
U.S.C. §§ 9606 and 9607. The authority vested in the President has been delegated to
the Administrator of the United States Environmental Protection Agency ( "U.S. EPA ") by
Executive Order 12580, 52 Fed. Reg. 2923 (January 29, 1987), and further delegated
to the Regional Administrators of U.S. EPA by Delegation No. 14 -14 -E (issued May 11,
1994, amended by memorandum May 19, 1995). Within Region IX, this authority has
been delegated to the Superfund Branch Chiefs by Regional Order 1290.21 -B dated
July 27, 2005 ( "De Minimis Settlements "). This Settlement Agreement is also entered
into pursuant to the authority of the Administrator pursuant to Section 7003 of the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6973. The
Administrator's authority has been delegated to the Regional Administrators of U.S.
EPA by Delegation No. 8 -22 -C dated May 11, 1994. Within Region IX, this authority has
been delegated to the Director of the Superfund Division by Regional Order 1280.20
dated April 6, 1998. This Settlement Agreement is also entered into by the United
States on behalf of the United States Fish and Wildlife Service ( "FWS "), United States
Department of Interior ( "DOI "); and on behalf of the National Oceanic and Atmospheric
Administration ( "NOAA"), United States Department of Commerce, each of whom, by
Executive Order 12580, as amended by Executive Order 13016, 61 Fed. Reg. 45872
(August 30, 1996), has been delegated with the authority vested in the President as a
Federal Trustee for natural resources that may have been, or in the future may be,
injured by the release of hazardous substances at or from the Casmalia Disposal Site,
Casmalia Disposal Site 3 EPA Region IX AOC No. 99 -02(h)
as defined herein.
2. This Settlement Agreement is issued to the persons, corporations or other
entities identified in Appendix A ( "Settling Parties "). Each Settling Party agrees to
undertake all actions required by this Settlement Agreement. Each Settling Party further
consents to and will not contest the United States' jurisdiction to issue this Settlement
Agreement or to implement or enforce its terms.
3. The U.S. EPA, Federal Trustees and Settling Parties ( "Parties ") agree that the
actions undertaken by Settling Parties in accordance with this Settlement Agreement do
not constitute an admission of any liability by any Settling Party. Settling Parties do not
admit, and retain the right to controvert in any subsequent proceedings other than
proceedings to implement or enforce this Settlement Agreement, the validity of the
Statement of Facts or the Determinations contained in Sections IV (Statement of Facts)
and V (Determinations), respectively, of this Settlement Agreement.
II. STATEMENT OF PURPOSE
4. By entering into this Settlement Agreement, the mutual objectives of the
Parties, as more precisely described in the terms of this Settlement Agreement, are:
a. to reach a settlement among the Parties with respect to the Casmalia
Disposal Site (defined as "Site," below), pursuant to Section 122(g) of
CERCLA, 42 U.S.C. § 9622(g), that allows Settling Parties to make a cash
payment, including a premium, to resolve their alleged civil liability under
Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607, and
Section 7003 of RCRA, 42 U.S.C. § 6973, for injunctive relief with regard
to the Site, and for response costs and, for some parties, Natural
Resource Damages, incurred and to be incurred by the U.S. EPA or the
Federal Trustees at or in connection with the Site, thereby reducing
litigation relating to the Site;
Casmalia Disposal Site 4 EPA Region IX AOC No. 99 -02(h)
b. to provide Settling Parties with two options for resolution of such liability:
Settlement Option A, for which the Settling Parties pay a greater premium
and that affords greater finality (including, for example, a covenant not to
sue for Natural Resource Damages and for response costs incurred and
to be incurred by the Federal Trustees at or in connection with the Site);
and Settlement Option B, for which the Settling Parties pay a lower
premium and that contains less finality and greater risks for the Settling
Parties. The terms of Options A and B are more fully described within;
C. to resolve any alleged claims of the Settling Parties that could have been
asserted against the United States with regard to the Site;
d. to simplify any remaining administrative and judicial enforcement activities
concerning the Site by resolving the alleged liability of a substantial
number of potentially responsible parties ( "PRPs ") with respect to the Site;
e. to obtain settlement with Settling Parties for their fair share of response
costs incurred and to be incurred at or in connection with the Site by U.S.
EPA Hazardous Substance Superfund and by other persons, not including
the State of California, and, with respect to Settling Parties that elect
Settlement Option A, response costs incurred by the Federal Trustees;
and
f. to provide for contribution protection for Settling Parties with regard to the
Site pursuant to Sections 113(f)(2), and 122(g)(5) of CERCLA, 42 U.S.C.
§§ 9613(f)(2), and 9622(g)(5).
III. DEFINITIONS
5. Unless otherwise expressly provided in this Settlement Agreement, terms
used in this Settlement Agreement, including the attached appendices, that are defined
in CERCLA or in regulations promulgated under CERCLA shall have the meaning
Casmalia Disposal Site 5 EPA Region IX AOC No. 99 -02(h)
y
assigned to them in the statute or regulations. Whenever the terms listed below are
used in this Settlement Agreement, the following definitions shall apply:
"Casmalia Consent Decree" shall mean the consent decree entered by the
United States District Court for the Central District of California on June 27, 1997 in
United States of America v. ABB Vetco Gray, Inc., et al., Civ No. CV96 -6518
KMW(Jgx).
"Casmalia Resources Closure /Post - Closure Trust Fund" shall mean the trust
fund established by Casmalia Resources, as grantor, on or about October 24, 1985, to
address closure /post - closure requirements established by the State of California,
Department of Health Services and applicable to the Casmalia Resources Hazardous
Waste Management Facility.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
"Commerce" shall mean the United States Department of Commerce and any
successor departments, agencies, or instrumentalities of the United States.
"Contaminants List" shall mean those contaminants identified to date at the Site
and listed in Appendix C.
"CSC" shall mean the Casmalia Steering Committee.
"Day" shall mean a calendar day. In computing any period of time under this
Order, where the last day would fall on a Saturday, Sunday, or a federal holiday, the
period shall run until the close of business on the next working day.
"De Minimis Party" shall mean any PRP that the U.S. EPA has determined sent
no more than 8.5 million pounds of waste to the Site.
"DOI" shall mean the United States Department of the Interior and any successor
departments, agencies, or instrumentalities of the United States.
"Escrow Account" shall mean the escrow account for the Site, which was
Casmalia Disposal Site 6 EPA Region IX AOC No. 99 -02(h)
7
established pursuant to the Consent Decree entered by the United States District Court
for the Central District of California on June 27, 1997, in United States of America v.
ABB Vetco Gray Inc. et al., Civ. No. CV 96- 6518 -KMW (JGx) "Casmalia Consent
Decree "). The Escrow Account holds money collected, inter alia, from this and other
settlements and enforcement activities, and which shall be used for response actions at
and concerning the Site.
"Escrow Trustee" shall mean the trustee of the Escrow Account.
"Facility" shall mean the former permitted Casmalia Resources Hazardous
Waste Management facility, encompassing approximately 252 acres, located
approximately ten (10) miles southwest of Santa Maria and one and a half miles north
of Casmalia in Santa Barbara County, California, and depicted generally on the map
attached as Appendix B.
"Federal Trustees" shall mean the Departments of Interior and Commerce, on
behalf of the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric
Administration, respectively.
"Interest" shall mean interest at the current rate specified for interest on
investments of the U.S. EPA Hazardous Substance Superfund established by 26
U.S.C. § 9507, compounded annually on October 1 of each year, in accordance with 42
U.S.C. § 9607(a).
"Natural Resources" shall have the meaning provided in Section 101 (16) of
CERCLA, 42 U.S.C. § 9601(16).
"Natural Resource Damages" means damages, including costs of damages
assessment, recoverable under Section 107 of CERCLA, 42 U.S.C. § 9607, for injury
to, destruction of, or loss of any and all Natural Resources at the Site.
"Paragraph" shall mean a portion of this Settlement Agreement, identified by an
Arabic numeral.
Casmalia Disposal Site 7 EPA Region IX AOC No. 99 -02(h)
"Parties" shall mean the United States, on behalf of the Federal Trustees, the
U.S. EPA, and the Settling Parties.
"Person" shall mean an individual, firm, corporation, association, partnership,
consortium, joint venture, commercial entity, United States Government, state,
municipality, commission, political subdivision of a state, or any interstate body.
"Phase 1 Work" and "Phase 2 Work" shall have the meaning assigned to them in
the Casmalia Consent Decree.
"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C. §§
6901 et seq. (also known as the Resource Conservation and Recovery Act).
"Section" shall mean a portion of this Settlement Agreement, identified by a
Roman numeral.
"Settlement Agreement" shall mean this Administrative Order on Consent and all
appendices attached hereto. In the event of conflict between this Order and any
Appendix, this Order shall control.
"Settling Parties" shall mean those entities listed in Appendix A.
"Site" or "Casmalia Disposal Site" shall mean shall mean the Facility, as defined
herein, and the areal extent of contamination that is presently located in the vicinity of
the Facility, and any related "facility" as defined in CERCLA Section 101(9), 42 U.S.C. §
9601(9), and all suitable areas in very close proximity to the contamination necessary
for the implementation of the response action(s), and any areas to which such
contamination migrates.
"United States" shall mean the United States of America, including its
departments, agencies and instrumentalities.
"U.S. EPA" shall mean the United States Environmental Protection Agency and
any successor departments, agencies or instrumentalities.
"U.S. EPA Hazardous Substance Superfund" shall mean the Hazardous
Casmalia Disposal Site 8 EPA Region IX AOC No. 99 ®02(h)
Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
IV. STATEMENT OF FACTS
6. Paragraphs 7 through 25 below contain a summary of the Site background as
alleged by U.S. EPA that, for purposes of this Settlement Agreement, the Settling
Parties neither admit nor deny.
7. The Site encompasses (among other areas, as defined above) the former
Casmalia Resources Hazardous Waste Management Facility, an inactive commercial
hazardous waste treatment, storage, and disposal facility, which accepted large
volumes of hazardous substances from 1973 to 1989. Located on a 252 -acre parcel in
Santa Barbara County, California, the former Casmalia Resources Hazardous Waste
Management Facility consists of six landfills, numerous surface impoundments,
disposal trenches, injection wells, waste spreading areas and tank treatment systems.
8. The location of the Site is near the southern end of the Casmalia Hills in
coastal California, approximately ten (10) miles southwest of the town of Santa Maria
and one and a half miles north of the town of Casmalia. The Site is situated within the
Shuman Canyon drainage sub -basin on a southern facing slope traversed by three
small canyons. Casmalia Creek, about 500 feet west, is the surface water body nearest
to the abandoned facility. This creek flows to the southwest to join Shuman Creek
about one mile southwest of the town of Casmalia. Shuman Creek continues
southward and westward, discharging eventually into the Pacific Ocean.
9. Hazardous substances within the definition of Section 101(14) of CERCLA,
42 U.S.C. § 9601(14), have been, or are threatening to be, released into the
environment at or from the Site. These hazardous substances include a wide variety of
organic and inorganic compounds.
10. During the Facility's seventeen (17) years of operation, the
Casmalia Disposal Site 9 EPA Region IX AOC No. 99 -02(h)
, _jl ;a
s
owner(s) /operator(s) accepted approximately 5.6 billion pounds of documented liquid
and solid wastes from thousands of generators, including numerous large and small
private businesses and federal, state, and local governmental entities.
11. From 1980 to 1989, the facility had interim status pursuant to RCRA, 42
U.S.C. § 6925(e), by operation of law. Because of continuing deficiencies in
operations, no final RCRA permit was granted. The Facility has not been closed
adequately in accordance with the requirements of RCRA.
12. In late 1989, the owner(s) /operator(s) ceased accepting off -Site waste
shipments to the facility and, in the early 1990s, the owner(s) /operator(s) stopped all
active efforts to properly close and remediate the facility, asserting that they had
insufficient monies to pay for closure or remediation.
13. The Casmalia Resources Closure /Postclosure Trust Fund is insufficient to
pay for the total estimated costs of closure and post - closure activities at the Site.
14. After the facility's owner(s) /operator(s) ceased accepting off -Site waste, the
owner(s) /operator(s) curtailed facility maintenance activities, and Site conditions
deteriorated and became unstable.
15. As a result of the release or threatened release of hazardous substances,
U.S. EPA has undertaken response actions at or in connection with the Site under
Section 104 of CERCLA, 42 U.S.C. § 9604, and will undertake response actions in the
future. In August 1992, U.S. EPA commenced a removal action under CERCLA to
implement certain Site stabilization actions, prevent further deterioration of Site
conditions, and control the most immediate threats. The Site continues to pose an
imminent and substantial endangerment within the meaning of Section 106 of CERCLA,
42 U.S.C. § 9606, and Section 7003 of RCRA, 42 U.S.C. § 6973.
16. In performing these response actions, U.S. EPA has incurred and will
continue to incur response costs at or in connection with the Site. As of August 1,
Casmalia Disposal Site 10 EPA Region IX AOC No. 99 -02(h)
1999, U.S. EPA had incurred at least $19.19 million in response costs at this Site.
17. Because the own.er(s) /operator(s) had failed to perform sufficient closure
and remediation activities at the Site, in March 1993, U.S. EPA, under CERCLA and
RCRA authorities, notified a group of approximately sixty -five (65) waste generators,
representing some of the PRPs that arranged for disposal of the largest quantities of
hazardous substances at the Site, of their potential liability for Site remediation.
Approximately fifty -four (54) of the first sixty -five (65) notified generators formed the
CSC. U.S. EPA negotiated with the CSC and other PRPs to secure implementation of
response actions at or in connection with the Site.
18. On September 17, 1996, the United States filed a complaint against the
CSC pursuant to Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607, and
Section 7003 of RCRA, 42 U.S.C. § 6973, seeking cleanup of the Site and payment of
certain response costs incurred by the U.S. EPA and the United States Department of
Justice ( "U.S. DOX) in connection with the Site. On this same date, the United States
lodged the Casmalia Consent Decree in the Central District of California, United States
District Court, resolving the claims in that complaint. On June 27, 1997, the Court
entered the Casmalia Consent Decree.
19. The Casmalia Consent Decree establishes a comprehensive framework in
which to address: (1) the remediation of the Site to protect public health, welfare and
the environment from the release or threatened release of hazardous substances at the
Site; and (2) the performance and financing of the response actions to be undertaken at
the Site. The Casmalia Consent Decree contemplates that a significant portion of the
work at the Site will be paid for by funds obtained through future enforcement efforts,
including, but not limited to, settlements such as this de minimis Settlement Agreement,
and various enforcement and settlement efforts directed toward the prior
owner(s) /operator(s) of the Site and other PRPs.
Casmalia Disposal Site 11 EPA Region IX AOC No. 99 -02(h)
a � a
20. On November 26, 2002, the District Court for the Central District of
California entered two Consent Decrees pertaining to the Site: one entered into by
Casmalia Resources, Hunter Resources and the estate of Kenneth H. Hunter, Jr. (the
"Hunter Parties "), who have paid $6.957 million and agreed to transfer certain real
property to an entity to be identified later by the U.S. EPA, and the other entered into by
the State of California, which has paid $15 million. Neither the Hunter Parties nor the
State of California admitted liability and both Consent Decrees provide contribution
protection. On June 29, 2006, U.S. EPA entered into an agreement with assorted
limited partners of Kenneth H. Hunter, Jr. ( "Castagnola Parties "). Under this agreement,
the Castagnola Parties have paid U.S. EPA $400,000. The Castagnola Parties did not
admit liability, and the agreement provides contribution protection.
21. In October 1998, U.S. EPA began notifying de minimis PRPs of their
potential liability in connection with the Site and providing settlement offers to them. An
opportunity to settle has been offered to approximately 1,800 PRPs since 1999. U.S.
EPA may enter into additional settlements such as this one with other de minimis PRPs
in the future with respect to this Site.
22. Information currently known to U.S. EPA indicates that each Settling Party
arranged for disposal or treatment at the Site, or arranged with a transporter for
transport for such disposal or treatment, of hazardous substances owned or possessed
by such Settling Party or by any other person or entity, or accepted a hazardous
substance for transport to, and selected, the Site.
23. Information currently known to U.S. EPA indicates that each Settling Party
contributed less than 8.5 million pounds of materials containing hazardous substances
to the Site, and the hazardous substances contributed by each Settling Party to the Site
are not significantly more toxic or of significantly greater hazardous effect than other
hazardous substances at the Site. For the purposes of this Settlement Agreement,
Casmalia Disposal Site 12 EPA Region IX AOC No. 99 -02(h)
these Settling Parties are de minimis parties. The volume of materials attributed by
U.S. EPA to each Settling Party is specified in Appendix A. Appendix C, entitled
Contaminants List, provides a list of contaminants identified to date at the Site.
24. For purposes of this settlement, U.S. EPA estimates that the total response
costs incurred and to be incurred at or in connection with the Site by U.S. EPA and by
private PRPs are $284 million. The payment required to be made by each Settling Party
pursuant to this Settlement Agreement is a minor portion of this total amount. The
required payment (for Settlement Option A or B) for each Settling Party is specified in
Appendix A.
25. Information currently known to the United States indicates the presence of
one or more Natural Resources at or near the Site that may have been, or which may
be, injured by release(s) of hazardous substances or that may have been or which may
be injured by response actions. U.S. EPA shall seek to coordinate assessments,
investigations and planning with the Federal Trustees pursuant to CERCLA Section
104(b)(2), 42 U.S.C. § 9604(b)(2).
V. DETERMINATIONS
26. Based upon the Findings of Fact set forth above and on the administrative
record for this Site, U.S. EPA and the Federal Trustees, have determined that:
a. The Site is a "facility" as that term is defined in Section 101 (9) of
CERCLA, 42 U.S.C. § 9601(9).
b. Each Settling Party is a "person" as that term is defined in Section
101(21) of CERCLA, 42 U.S.C. § 9601(21).
C. Each Settling Party is potentially liable pursuant to Section 107(a) of
CERCLA, 42 U.S.C. § 9607(a), and is a "potentially responsible party"
within the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. §
9622(g)(1).
Casmalia Disposal Site 13 EPA Region IX AOC No. 99 -02(h)
d. There has been an actual or threatened "release" of a "hazardous
substance" at the Site as those terms are defined in Section 101 (22) and
(14) of CERCLA, 42 U.S.C. § 9601(22) and (14).
e. The actual or threatened release of a hazardous substance at the Site
has caused or may cause the incurrence of response costs and may have
injured, or may injure, Natural Resources within the meaning of Section
107(a) of CERCLA, 42 U.S.C. § 9607(a).
f. Prompt settlement is "practicable" and in the "public interest" within the
meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. § 9622(g)(1).
g. As to each Settling Party, this Settlement Agreement involves only a minor
portion of the total response costs at the Site within the meaning of
Section 122(g)(1) of CERCLA, 42 U.S.C. § 9622(g)(1).
h. The amount of material containing hazardous substances and the toxic or
other hazardous effects of the hazardous substances contributed to the
Site by each Settling Party is minimal in comparison to other hazardous
substances at the Site as set forth in the Contaminants List attached as
Appendix C, within the meaning of section 122(g)(1)(A) of CERCLA, 42
U.S.C. § 9622(g)(1)(A).
VI. SETTLEMENT AGREEMENT AND ORDER
27. Based upon the administrative record for the Site and the Statement of
Facts and the Determinations set forth above, and in consideration of the promises and
covenants set forth in this Settlement Agreement, the following is hereby AGREED
AND ORDERED:
VII. SETTLEMENT OPTIONS
28. Settling Parties may choose between Settlement Options A and B as set
forth in this Section and in Sections XI (Covenant Not to Sue and Reservation of Rights
Casmalia Disposal Site 14 EPA region 1X AOC No. 99 -02(h)
( ( b
by U.S. EPA and Federal Trustees), and XII (Covenant by Settling Parties Not to Sue).
Except where this Order specifies particular Sections or Paragraphs as pertaining to
Option A or B, in which case those provisions apply only to Settling Parties that elect
Option A or B, respectively, all other terms of this Order apply equally to all Settling
Parties, regardless of which settlement option they choose.
29. General Description of Options
a. As between the two settlement options, Settlement Option A is designed
to provide Settling Parties with a higher degree of finality and certainty.
Under Settlement Option A, the payment includes a premium of 100 %,
which covers, among other risks, the risk that total response costs
incurred or to be incurred at or in connection with the Site by the U.S.
EPA, or by any private party, will exceed the estimated total response
costs upon which Settling Parties' payments are based. Pursuant to
Section XI (Covenant Not to Sue and Reservation of Rights by U.S. EPA
and Federal Trustees), Settling Parties that choose Settlement Option A
will receive more protective covenants (including a covenant not to sue for
Natural Resource Damages and Federal Trustees' response costs), and
these Settlement Option A covenants have more limited reservations.
b. Under Settlement Option B, which offers less finality than Settlement
Option A, the premium is 50 %. Pursuant to Section XI (Covenant Not to
Sue and Reservation of Rights by U.S. EPA and Federal Trustees),
Settling Parties that choose Option B do not receive a covenant not to sue
for Natural Resource Damages or Federal Trustees' response costs and
risk liability for additional future payments.
30. Calculation of Payment
a. Each Settling Party's payment is based on its share, by weight, of the total
Casrnalia Disposal Site 15 EPA Region IX AOC No. 99 -02(h)
=I_'
waste disposed of at the Site multiplied by the U.S. EPA's estimated total
response costs incurred or to be incurred at or in connection with the Site.
U.S. EPA's total estimate for response costs at the Site is $284 million.
b. For Settling Parties that elect Settlement Option A, the settlement
payment is based on the estimated $271,930,000 that have been or will
be incurred by U.S. EPA for response actions at the Site, and by the CSC
for response actions at the Site as required by the Casmalia Consent
Decree, and does not include $12 million that was, at the time U.S. EPA
prepared the 1999 Cost Estimate, in the RCRA Closure and Post - Closure
Trust Fund established by the former owner /operator of the Site. In
addition to $271,930,000, the amount of $193,417 has been added for
certain estimated response costs that have been, or will be, incurred by
the Federal Trustees at the Site. A portion of the money paid by Settling
Parties that elect Settlement Option A will be provided to the Federal
Trustees to perform activities that support both the response action and
the assessment of potential injuries to natural resources in accordance
with CERCLA sections 104(b)(2), 107(f)(1) and 1220)(2), 42 U.S.C. §§
9604(b)(2), 9607(f)(1) and 96220)(2). The payment amounts for each
Settling Party are set forth in Appendix A.
C. For Settling Parties that elect Settlement Option B, U.S. EPA's cost
estimate is the estimated $271,930,000 that have been or will be incurred
by U.S. EPA for response actions at the Site, and by the CSC for
response actions at the Site as required by the Casmalia Consent Decree.
This amount does not include $12 million that, at the time U.S. EPA
prepared the 1,999 Cost Estimate, was in the RCRA Closure and Post -
Closure Trust Fund established by the former owner /operator of the Site.
Casmalia Disposal Site 16 EPA Region IX AOC No. 99 -02(h)
This figure does not include an estimate for any response costs that will
be incurred by the Federal Trustees.
Casmalia Disposal Site 17 EPA Region IX A ®C No. 99 -02(h)
d. Each payment amount by Settling Parties includes a premium to cover the
risks and uncertainties associated with this Settlement Agreement. The
premium (100% for Settlement Option A, 50% for Settlement Option B) is
applied to each Settling Party's volumetric share of all estimated "non -
fixed Site response costs," but is not applied to U.S. EPA's and the CSC's
calculation of "fixed Site response costs." Fixed Site response costs
include $16.38 million in Past Response Costs (as defined in the
Casmalia Consent Decree) incurred by the United States between March
1, 1992, and July 22, 1997, and response costs of $2.81 million incurred
by the United States between July 23, 1997, and August 1, 1999 (the date
U.S. EPA selected as the "cutoff' for the calculation of costs that have
already been incurred for purposes of the cost estimate used for this
Order and future enforcement efforts). Fixed Site response costs also
include response costs of $13.68 million incurred by the CSC for response
actions between April 1993 and August 1998 for Phase 1 Work in
accordance with the Casmalia Consent Decree. U.S. EPA's and the
CSC's fixed Site response costs together total $32.86 million. Under
Settlement Option A or Settlement Option B, the premium is not assessed
against this $32.86 million. Under Settlement Option A or Settlement
Option B, the premium is applied to U.S. EPA's and the CSC's "non- fixed"
estimated Site response costs, or estimated response costs incurred and
to be incurred at the Site after August 1, 1999. This amount totals $239.07
million. Under Settlement Option A, the 100% premium is also applied to
estimated non -fixed Site response costs of $193,417 incurred or to be
incurred by the Federal Trustees, described in subparagraph b, above.
e. The mathematical formula for calculating each Settling Party's payment
amount under Option A is as follows:
Casmalia Disposal Site 18 EPA Region IX AOC No. 99 -02(h)
Settling Party's
Non -Fixed
Waste Quantity
X
Site
Natural
Total Site
Response
Resources
Waste Quantity
Costs
+ Trustees' Costs
5.6 Billion lbs.
$239.07
$193,417
Million
X Premium
(100 %)
2.0
4 6 7
+ Payment
Amount
Settling Party's Fixed
Waste Quantitv Site
Total Site Response
Waste Quantity X Costs [No Premium
5.6 Billion lbs. $32.86 Assessed]
Million
f. The mathematical formula for calculating each Settling Party's payment
amount under Option B is as follows:
Casmalia Disposal Site 19 EPA Region IX AOC No. 99 -02(h)
Settling Party's
Waste Quantity Non -Fixed
Site Response Premium
Total Site X Costs X (50 %)
Waste Quantity
5.6 Billion lbs. $239.07 Million 1.5
= Payment Amount
Settling Party's
Waste Quantity Fixed Site
Total Site X Response Costs [No Premium
Waste Quantity $32.86 Million Assessed]
5.6 Billion lbs.
g. Each Settling Party's payment amount for Settlement Option A is set forth
in Column A opposite that Settling Party's name on Appendix A. Each
Settling Party's payment amount for Settlement Option B is set forth in
Column B opposite that Settling Party's name on Appendix A.
VIII. PAYMENT
31. Siqnature and Pavment by Settling Parties
a. Each Settling Party has submitted to U.S. EPA a fully and properly
executed original signature page for this Settlement Agreement, electing
either Settlement Option A or Settlement Option B, and paid to the
Escrow Account the payment specified for that Settling Party in the
appropriate column (i.e., Column A for Option A, Column B for Option B)
opposite that Settling Party's name in Appendix A in accordance with the
instructions provided in Paragraph 32(a).
32. Payment Provisions
a. Payment by Settling Parties. Each Settling Party made payment in full by
one of the following methods:
(i) By Cashier's or Certified Check
Casmalia Disposal Site 20 EPA region IX AOC No. 99 -02(h)
Cashier's check or certified check, made payable to "MSSB FBO
Casmalia Consent Decree" mailed to the following address:
Morgan Stanley Smith Barney
Attn: The Fisher McGlothin Group
1111 Northshore Dr. #N -160
Knoxville, TN 37919
Re: Casmalia Custody Account
and including a completed Payment Invoice.
(ii) By Wire Transfer
Funds wired to:
Citibank, New York
ABA/Locator#: 021000089
FBO: Morgan Stanley Smith Barney LLC
A/C:40611172
New York, NY 10004
Further Credit to: 940 - 112590 -210
REF: Casmalia Resources Site Custodial Agreement
Payor: the name of the Settling Party exactly as it appears at the
top of the "Consent and Authorization" page.
At the time of payment, each Settling Party should submit a copy of the
completed Payment Invoice to:
Casmalia Case Team
U.S. EPA Region IX
75 Hawthorne Street (SFD -7)
San Francisco, California 94105 -3901
33. Refunds from the Escrow Account. In the event that this Settlement
Agreement does not become effective, then U.S. EPA shall direct the Escrow Trustee,
within thirty (30) days of receipt of notice of such event from U.S. EPA, to refund the
Settling Parties payment(s). Any refunds made under this Paragraph shall include the
interest accrued on the payment, if any, minus a pro rata share of the costs of
administering the Escrow Account to that date and taxes payable by the Escrow
Trustee with respect to payments made by the Settling Parties under this Settlement
Agreement.
34. Disqualification. If at any time prior to the effective date of this Settlement
Agreement, U.S. EPA determines, in its sole and unreviewable discretion, that one or
more of the statements of facts made in Paragraph 23 or the determinations made in
Casmalia Disposal Site 21 EPA Region IX AOC No. 99 -02(h)
� dv�
Subparagraphs 26(g) or (h) no longer apply(ies) to a Settling Party, such Settling Party
shall be disqualified from participation in this settlement, and the Escrow Trustee shall,
within thirty (30) days of receipt of written notification by U.S. EPA of such
disqualification, refund such Settling Party's payment.
IX. FAILURE BY SETTLING PARTIES TO MAKE TIMELY PAYMENTS
35. Interest on Late Payments
a. Because all Settling Parties electing Settlement Option A have remitted
payment in full as required by Paragraph 32 prior to the effective date of
this Order, no Interest shall accrue on any such payment.
b. Settling Parties electing Settlement Option B who fail to pay their share of
increased costs as set forth in Paragraph 45 shall pay Interest on the
unpaid balance, commencing on the date that payment is due and
accruing through the date of the payment.
C. Interest shall be paid by a separate check in the amount of the Interest
owed and shall be sent simultaneously with the payment required in
paragraph 45. Payment of Interest shall be made and a copy of the
cashier's or certified check shall be sent as provided in paragraph 32(a)
(Payment Provisions).
36. Stipulated Penalties and Disqualification
a. In addition to the Interest required by Paragraph 35, if an Option B Settling
Party fails to remit the payment required by Paragraph 45 when due, then
that Option B Settling Party shall also pay stipulated penalties to U.S. EPA
of $1,000 per day for each day that the payment is late.
b. Penalties shall begin to accrue from the day when payment by an Option
B Settling Party is due pursuant to Paragraph 45 and shall continue to
accrue until all payments required by this Order for that Option B Settling
Casmalia Disposal Site 22 EPA Region IX AOC No. 99 -02(h)
C
C
•�
R
Party have been paid in full (e.g_, when all payments, Interest, and
stipulated penalties are paid in full). Penalties shall accrue regardless of
whether U.S. EPA or the Escrow Trustee has notified the Option B
Settling Party of a violation.
Interest on penalties shall begin to accrue on the unpaid balance at the
end of thirty (30) days from the date that payment was due under
Paragraph 45.
Stipulated penalties due to U.S. EPA shall be paid contemporaneously
with the payment of the amount required by Paragraph 45 and the Interest
thereon required by Paragraph 35. However, stipulated penalties,
including any Interest owed on the stipulated penalties pursuant to
subparagraph c of this Paragraph, shall be paid by a separate certified or
cashier's check made payable to "U.S. EPA Hazardous Substances
Superfund," and shall be mailed to:
U.S. EPA - Region IX
Fines and Penalties
Cincinnati Finance Center
P.O. Box 979077
St. Louis, MO 63197 -9000
Ail payments shall indicate that the payment is for stipulated penalties and
shall reference the name and address of the Settling Party making
payment and U.S. EPA Regional Site Spill ID Number 09 -31-1.
Nothing herein shall prevent the simultaneous accrual of separate
penalties for separate violations of this Order.
Notwithstanding any other provision of this Section, the United States
may, in its sole and unreviewable discretion, waive payment of any portion
of the stipulated penalties that have accrued pursuant to this Settlement
Agreement.
Casmalia Disposal Site 23 EPA Region 1X AOC No. 99 -02(h)
37. The releases and covenants set forth in Sections XI (Covenant Not to Sue
and Reservation of Rights by U.S. EPA and Federal Trustees), and XII (Covenant by
Settling Parties Not to Sue) and the contribution protection set forth in Section X111
(Effect of Settlement/Contribution Protection) are conditional upon compliance with all
the terms of this Settlement Agreement, including - for Settling Parties electing
Settlement Option B - payment pursuant to Paragraph 45.
38. If U.S. EPA or U.S. DOJ brings an action to enforce this Settlement
Agreement against Settling Party(ies), such Settling Party(ies) shall reimburse the U.S.
EPA and /or U.S. DOJ for all costs of such action, including but not limited to costs of
attorney time.
39. Payments made under this Section shall be in addition to any other
remedies or sanctions available to the United States by virtue of a Settling Party's
failure to comply with the requirements of this Settlement Agreement, including, but not
limited to, bringing an action against that Settling Party seeking injunctive relief to
compel payment and /or seeking civil penalties under Section 122(1) of CERCLA, 42
U.S.C. § 9622(1), for failure to make timely payment.
X. CERTIFICATION OF SETTLING PARTY
40. By signing this Settlement Agreement, each Settling Party certifies,
individually, that it has no reason to disagree with U.S. EPA's determinations that such
Settling Party: (a) contributed less than 8.5 million pounds of materials containing
hazardous substances sent to the Site; and (b) contributed hazardous substances of
minimal toxic or other hazardous effects in comparison to other hazardous substances
at the Site, as set forth in the Contaminants List attached as Appendix C.
XI. COVENANT NOT TO SUE AND RESERVATION OF RIGHTS
BY U.S. EPA AND FEDERAL TRUSTEES
41. General Reservations. The covenants by the U.S. EPA and the Federal
Casmalia Disposal Site 24 EPA Region IX AOC No. 99 -02(h)
Trustees set forth in Paragraphs 43 and 44 of this Settlement Agreement do not pertain
to any matters other than those expressly specified in Paragraphs 43 and 44. The U.S.
EPA and the Federal Trustees reserve, and this Settlement Agreement is without
prejudice to, all rights against Settling Parties, with respect to all other matters,
including but not limited to:
a. liability for failure to meet a requirement of this Settlement Agreement;
b. criminal liability;
C. liability based on a Settling Party's ownership or operation of the Site, or
upon the transportation, treatment, storage or disposal, or the
arrangement for the transportation, treatment, storage or disposal, of a
hazardous substance or a solid waste at or in connection with the Site,
after signature of this Settlement Agreement;
d. liability arising from the past, present, or future arrangement by a Settling
Party, or a subsidiary or affiliated entity of that Settling Party, for disposal
or treatment of a hazardous substance, pollutant or contaminant at the
Site that is both (1) not from a facility or specific location owned or
operated by that Settling Party as specified in Appendix A, and (2) not
included in the volume of waste attributed to that Settling Party as set
forth in Appendix A; and
e. with respect to Option B Settling Parties, claims by Federal Trustees for
costs associated with response actions or Natural Resource Damages
claims at the Site.
42. Reservation Concerning De Minimis Status. Notwithstanding any other
provision in this Settlement Agreement, the U.S. EPA and the Federal Trustees
reserve, and this Settlement Agreement is without prejudice to, the right to institute
judicial or administrative proceedings against any individual Settling Party seeking to
Casmalia Disposal Site 25 EPA Region 1X AOC No. 99 -02(h)
compel that Settling Party to' perform response actions relating to the Site, and /or to
reimburse the U.S. EPA and /or the Federal Trustees, for additional costs of response
and /or Natural Resource Damages, if information not currently known to U.S. EPA is
discovered that indicates such Settling Party no longer qualifies as a de minimis party at
the Site because such Settling Party contributed more than 8.5 million pounds of
materials containing hazardous substances to the Site, or contributed hazardous
substances the toxic or hazardous effect of which are not minimal in comparison to
other hazardous substances at the Site, as set forth in the Contaminants List attached
as Appendix C. For purposes of this Section only, the volume of material contributed
by a Settling Party shall not include any waste sent by an entity merged into or
otherwise acquired by such Settling Party after the effective date of this Settlement
Agreement.
43. In consideration of the payments that have been made by Settling Parties
that have elected to settle under the provisions of Settlement Option A ( "Option A
Settling Parties ") under the terms of this Settlement Agreement, and except as
specifically provided in Paragraphs 41 and 42 of this Settlement Agreement, the U.S.
EPA and the Federal Trustees hereby covenant not to sue or to take administrative
action against any of the Option A Settling Parties pursuant to sections 106 or 107 of
CERCLA, 42 U.S.C. §§ 9606 or 9607, and section 7003 of RCRA, 42 U.S.C. § 6973,
relating to the Site, including for recovery of Natural Resource Damages and for
response costs incurred or to be incurred by the Federal Trustees. With respect to
present and future liability, this covenant shall take effect upon the effective date of this
Settlement Agreement as set forth in Section XIX (Effective Date). With respect to
each Option A Settling Party, individually, this covenant is conditioned upon: a) the
satisfactory performance by that Option A Settling Party of all its obligations under this
Settlement Agreement; and b) the veracity of any information provided to U.S. EPA by
Casmalia Disposal Site 26 EPA Region IX AOC No. 99 -02(h)
L [ `
that Option A Settling Party relating to Settling Party's involvement with the Site. This
covenant extends only to Option A Settling Parties and does not extend to any other
person.
44. In consideration of the payments that have been and may be made by
Settling Parties that have elected to settle under the provisions of Settlement Option B
(`Option B Settling Parties ") under the terms of this Settlement Agreement, and except
as specifically provided in Paragraphs 41, 42, and 45 of this Settlement Agreement, the
U.S. EPA hereby covenants not to sue or to take administrative action against any of
the Option B Settling Parties pursuant to sections 106 or 107 of CERCLA, 42 U.S.C. §§
9606 or 9607, and section 7003 of RCRA, 42 U.S.C. § 6973, relating to the Site. With
respect to present and future liability, this covenant shall take effect upon the effective
date of this Settlement Agreement as set forth in Section XX (Effective Date). With
respect to each Option B Settling Party, individually, this covenant is conditioned upon:
a) the satisfactory performance by Option B Settling Parties of all its obligations under
this Settlement Agreement, including, but not limited to, the obligation to make future
payments pursuant to Paragraph 45; and b) the veracity of any information provided to
U.S. EPA by that Option B Settling Party relating to that Option B Settling Party's
involvement with the Site. This covenant extends only to Option B Settling Parties and
does not extend to any other person.
45. Reservation for Increased Costs of Response Actions
a. An estimate of the total cost of response actions at the Site has been
developed for this and future de minimis settlements, enforcement
activities, and other purposes (1999 Cost Estimate "). The 1999 Cost
Estimate (which does not include response costs to be incurred by the
Federal Trustees) is $284 million, which includes $12 million that was, at
the time of the 1999 Cost Estimate, in the RCRA Closure and Post -
Casrnalia Disposal Site 27 EPA Region 1X AOC No. 99 -02(h)
i {
Closure Trust Fund established by the former owner /operator of the Site.
b. Option B Settling Parties shall be liable for, and in its unreviewable
discretion U.S. EPA may seek to have Option B Settling Parties pay, their
volumetric share of any increase in response costs if:
(i) after the final Record of Decision ( "ROD ") for the Site has been
issued and prior to certification of completion of the Phase 2 Work,
U.S. EPA has revised or approved the revision of, or the Court has
approved a revision of, the cost estimate for all response actions
taken or to be taken at the Site ( "Post -ROD Cost Estimate "); and
(ii) the estimated total Site Response Costs have increased from
the 1999 Cost Estimate of $284 million; and
(iii) based on actual expenditures at the Site and expenditures
reasonably anticipated in accordance with the ROD, any other
response action decision documents, and the revised cost
estimate, U.S. EPA, in its unreviewable discretion, determines that
the funds in the Escrow Account that are available for Phase 2
Work pursuant to the Casmalia Consent Decree will not be
sufficient to pay for costs associated with performance of the
Phase 2 Work or not be sufficient to allow timely continuation of
such work.
C. In addition, Option B Settling Parties shall be liable for, and in its
unreviewable discretion U.S. EPA may seek to have Option B Settling
Parties pay, their volumetric share of any increase in response costs if:
(i) upon certification of completion of Phase 2 Work, U.S. EPA has
revised, or approved the revision of, the cost estimate for all
response actions taken or to be taken at the Site (`Post -Phase 2
Casmalia Disposal Site 28 EPA Region 1X AOC No. 99 -02(h)
Cost Estimate "); and
(ii) the Post -Phase 2 Cost Estimate has increased from either the
1999 Cost Estimate or the Post -ROD Cost Estimate, whichever is
greater.
d. If U.S. EPA determines, in its unreviewable discretion, that it will require
payment of amounts derived pursuant to subparagraphs b or c, above, it
shall compile an administrative record to support the revised cost
estimate. The record shall include, but not be limited to, any Engineering
Evaluation /Cost Analysis, Remedial Investigation /Feasibility Study, ROD,
or any other response action decision documents, standard cost
documentation for response costs incurred by the United States and a
summary of response costs incurred by the CSC. The administrative
record shall be made available to the public at U.S. EPA Region 9,
Superfund Records Center, 95 Hawthorne Street, San Francisco,
California 94105 -3901.
e. After compilation of the administrative record, U.S. EPA will send a notice
to all Option B Settling Parties, which shall i) include the Post -ROD Cost
Estimate or Post -Phase 2 Cost Estimate, as applicable, and a brief
summary describing and supporting the cost estimate, ii) state the
availability of the administrative record for review, and iii) notify each
Settling Party of the amount it will be required to pay (i.e., its volumetric
share of the increased cost).
f. U.S. EPA shall have three years from the date of certification of
completion of the Phase 2 Work to send the notice described in
subparagraph e, above, relating to an increase in the Post -ROD Cost
Estimate described in subparagraph b, above, or an increase in the Post -
Casmalia Disposal Site 29 EPA Region IX AOC No. 99 -02(h)
..V
Phase 2 Cost Estimate described in subparagraph c, above.
g. Option B Settling Parties shall have thirty (30) days from the date of the
notice described in subparagraph e, above, to submit comments to U.S.
EPA concerning the Post -ROD Cost Estimate or the Post -Phase 2 Cost
Estimate, as applicable, and /or the administrative record in support of the
cost estimate. Comments shall be submitted to: Casmalia Case Team
(SFD -7), 75 Hawthorne Street, San Francisco, California 94105 -3901.
U.S. EPA shall prepare a response to significant comments, and shall
place the comments and its response in the Superfund Records Center at
the address listed in subparagraph d, above. U.S. EPA shall send to the
Option B Settling Parties a notice containing the response to comments,
and any resulting revision to the cost estimate and corresponding
adjustment to each Option B Settling Party's required payment amount. If
no comments were received, U.S. EPA shall notify the Option B Settling
Parties that the prior Post -ROD Cost Estimate or Post -Phase 2 Cost
Estimate, as applicable, of which the Option B Settling Parties received
notice pursuant to subparagraph e, above, has become final, and shall
make a demand for payment to each Option B Settling Party of the
amount set forth in such notice.
h. After U.S. EPA has responded to any comments, U.S. EPA's Post -ROD
Cost Estimate or Post -Phase 2 Cost Estimate, as applicable, revised if
necessary pursuant to subparagraph g, above, shall be considered final,
unless within fourteen (14) days of receipt of the response to comments,
the Option B Settling Parties appoint a delegation (consisting of no more
than ten (10) persons) to request a meeting with the U.S. EPA Region 9
Superfund Division Director. The appointed delegation may not raise to
Casmalia Disposal Site 30 EPA Region IX AOC No. 99 -02(h)
the Division Director any issues that had not previously been raised by the
written comments. (If U.S. EPA received no comments on the initial Post -
ROD or Post -Phase 2 Cost Estimate, there shall be no appeal to the
Division Director.) Further, the Option B Settling Parties shall not
challenge any fixed Site response costs included in the 1999 Cost
Estimate, and described in Paragraph 30, above.
If no meeting with the Division Director was requested pursuant to
subparagraph h, above, U.S. EPA shall notify the Option B Settling Party
that the prior Post -ROD or Post -Phase 2 Cost Estimate, revised (if
necessary) pursuant to subparagraph g, above, has become final, and
shall make a demand to each Option B Settling Party for payment of the
amount set forth in the notice sent to each Option B Settling Party
pursuant to subparagraph g, above.
If a meeting with the Division Director is held, the Division Director shall
review the administrative record supporting the cost estimate (including
the comments and responses thereto). The Division Director shall resolve
the dispute(s) consistent with the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. Part 300 ( "NCP ") and the terms of
this Order and will issue a final written administrative decision. Such
decision shall be final and shall not be subject to judicial review. U.S.
EPA shall send the Option B Settling Parties the Division Director's written
decision, any necessary revision to the Post -ROD or Post -Phase 2 Cost
Estimate, as applicable, any corresponding adjustment to each Option B
Settling Party's required payment amount, and a demand for payment of
such amount.
k. Option B Settling Parties' Manner of Payment and Failure to Make Timely
Casmalia Disposal Site 31 EPA Region IX AOC No. 99 -02(h)
Payment
(i) Option B Settling Parties shall make any additional payment(s)
within thirty (30) days of receipt of U.S. EPA's demand for such
payment under subparagraphs g, i or j, above. Payment, and
notice of such payment, shall be made in the manner set forth in
Paragraph 32(a).
(ii) If an Option B Settling Party fails to remit any payment(s)
required by subparagraph k(i), above, when due, then that Option B
Settling Party shall pay Interest on the unpaid balance in
accordance with Paragraph 35. Payment of such Interest shall be
made in accordance with Paragraphs 32(a) and 35.
(iii) In addition to Interest, such Option B Settling Party shall pay
stipulated penalties to U.S. EPA of $1000 per day for each day that
the payment is late. Penalties and Interest on such penalties shall
accrue and shall be paid as set forth in Paragraph 35.
(iv) Each Option B Settling Party hereby agrees that the running of
the limitations periods in all statutes of limitations applicable to any
rights, claims, causes of action, counterclaims, cross claims, and
defenses regarding, based upon, or arising out of disposal of
hazardous substances at the Site that either U.S. EPA or the CSC
could assert against such Option B Settling Party shall be
suspended for a period commencing on the Effective Date of this
Settlement Agreement and terminating eighteen (18) months after
the latest date upon which final payment would be due upon a
demand made under subparagraph c, above, or three years after
the certification of completion of Phase 2 Work if no demand has
Casmalia Disposal Site 32 EPA Region IX AOC No. 99 -02(h)
0
been made under subparagraph c, above.
(v) If U.S. EPA or U.S. DOJ brings an action to enforce this
Settlement Agreement against any Option B Settling Party, such
Option B Settling Party shall reimburse U.S. EPA and /or U.S. DOJ
for all costs of such action, including but not limited to costs of
attorney time.
(vi) Payments made under this subparagraph shall be in addition to
any other remedies or sanctions available to the United States by
virtue of Option B Settling Parties' failure to comply with the
requirements of this Settlement Agreement.
I. Duty to Inform U.S. EPA of Changes in Address or Legal Status Until
eighteen (18) months after the latest date upon which final payment would
be due upon a demand made under subparagraph c, above, or three
years after the certification of completion of Phase 2 Work if no demand
has been made under subparagraph c, above, each Option B Settling
Party shall notify the Casmalia Case Team of any change in address,
ownership, political configuration, or corporate or other legal status. Such
notice shall be sent to the Casmalia Case Team address provided in
Paragraph 32(a), above.
XII. COVENANT BY SETTLING PARTIES NOT TO SUE
46. Settling Parties covenant not to sue and agree not to assert any claims or
causes of action against the United States or its contractors or employees with respect
to the Site or this Settlement Agreement including, but not limited to:
a. any direct or indirect claim for reimbursement from U.S. EPA Hazardous
Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or 113
of CERCLA, 42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any
Casmalia Disposal Site 33 EPA Region IX AOC No. 99 -02(h)
a
other provision of law;
b. any claims arising out of response activities at the Site; and
C. any claim pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. §§
9607 and 9613, relating to the Site.
d. any claim pursuant to section 7002 of RCRA, 42 U.S.C. §§ 6972, or any
other comparable California laws, relating to the Site; and
e. any claim asserting a "takings" or similar claim.
Except as provided in Paragraph 48 and Paragraph 50, these covenants not to sue
shall not apply in the event the United States brings a cause of action or issues an
order pursuant to any of the reservations set forth in Section XI (Covenant Not to Sue
and Reservation of Rights by U.S. EPA and Federal Trustees, other than in Paragraph
41 (a) or (b), but only to the extent that Settling Parties' claims arise from the same
response action, response costs, or damages that the United States is seeking
pursuant to the applicable reservation.
47. Nothing in this Settlement Agreement shall be deemed to constitute
preauthorization or approval of a claim within the meaning of Section 111 of CERCLA,
42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d).
48. Settling Parties agree not to assert any claims and to waive all claims or
causes of action (including but not limited to claims or causes of action under Section
107(a) or 113 of CERCLA) that they may have for all matters relating to the Site against
each other or any other person who is a potentially responsible party under CERCLA at
the Site. This waiver shall not apply with respect to any defense, claim, or cause of
action that a Settling Party may have against any person if such person asserts or has
asserted a claim or cause of action relating to the Site against such Settling Party.
XIII. EFFECT OF SETTLEMENT /CONTRIBUTION PROTECTION
49. Except as provided in Paragraph 48, nothing in this Settlement Agreement
Casmalia Disposal Site 34 EPA Region IX AOC No. 99 -02(h)
shall be construed to create any rights in, or grant any cause of action to, any person
not one of the Parties to this Settlement Agreement. Except as provided in paragraph
48, each of the Parties expressly reserves any and all rights (including, but not limited
to, pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands
and causes of action that each Party may have with respect to any matter, transaction,
or occurrence relating in any way to the Site against any person not a Party hereto.
Nothing in this Settlement Agreement diminishes the right of the United States,
pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. §9613(f)(2) -(3), to pursue
any such persons to obtain additional response costs or response action and to enter
into settlements that give rise to contribution protection pursuant to Section 113(f)(2).
50. In any subsequent administrative or judicial proceeding initiated by the
United States for injunctive relief, Natural Resource Damages, recovery of response
costs, or other relief relating to the Site, Settling Parties shall not assert, and may not
maintain, any defense or claim based upon the principles of waiver, res judicata,
collateral estoppel, issue preclusion, claim - splitting, or other defenses based upon any
contention that the claims raised in the subsequent proceeding were or should have
been brought in the instant action; provided, however, that nothing in this Paragraph
affects the enforceability of the covenants not to sue set forth in Paragraphs 43 and 44.
51. The Parties agree that this Settlement Agreement constitutes an
administrative settlement for purposes of §§ 113(f)(2) and 122(g)(5) of CERCLA, 42
U.S.C. §§ 9613(f)(2) and 9622(g)(5), and that each Settling Party is entitled, as of the
Effective Date of this Settlement Agreement, to protection from contribution actions or
claims as provided by Sections 113(f)(2), and 122(g)(5) of CERCLA, 42 U.S.C. §§
9613(f)(2), and 9622(g)(5), or as may be otherwise provided by law, for "matters
addressed" in this Settlement Agreement.
a. For Option A Settling Parties, the "matters addressed" in this Settlement
Casmalia Disposal Site 35 EPA Region IX AOC No. 99 -02(h)
7
.a
Agreement are all response actions taken by the U.S. EPA and the
Federal Trustees and by private parties, and all response costs incurred
and to be incurred by the U.S. EPA and the Federal Trustees and by
private parties, at or in connection with the Site and Natural Resource
Damages at or relating to the Site; provided, however, that for Option A
Settling Parties, the "matters addressed" in this Settlement Agreement do
not include those response costs or response actions as to which the U.S.
EPA and /or the Federal Trustees have reserved their rights under this
Settlement Agreement (except for claims for failure to comply with this
Order), in the event that the U.S. EPA or the Federal Trustees assert
rights against Settling Parties coming within the scope of such
reservations.
b. For Option B Settling Parties, the "matters addressed" in this Settlement
Agreement are all response actions taken by the U.S. EPA and by private
parties, and all response costs incurred and to be incurred by the U.S.
EPA and by private parties, at or in connection with the Site; provided,
however, that for Option B Settling Parties, the "matters addressed" in this
Settlement Agreement do not include those response costs or response
actions as to which the U.S. EPA and the Federal Trustees have reserved
their rights under this Settlement Agreement (except for claims for failure
to comply with this Order), in the event that the U.S. EPA or the Federal
Trustees assert rights against Settling Parties coming within the scope of
such reservations. In addition, for Option B Settling Parties, the "matters
addressed" in this Settlement Agreement do not include Natural Resource
Damages.
52. Each Settling Party shall, with respect to any suit or claim brought by it for
Casmalia Disposal Site 36 EPA Region IX AOC No. 99 -02(h)
w
matters related to this Settlement Agreement, notify U.S. EPA in writing at the following
address no later than sixty (60) days prior to the initiation of such suit or claim:
Chief, Hazardous Waste Branch
Office of Regional Counsel
U.S. Environmental Protection Agency
75 Hawthorne Street (ORC -3)
San Francisco, CA 94105 -3901
Each Settling Party shall, with respect to any suit or claim brought against it for matters
related to this Settlement Agreement, notify U.S. EPA in writing within 10 days of
service of the complaint or claim upon such Settling Party. In addition, each Settling
Party shall notify U.S. EPA within 10 days of service or receipt of any Motion for
Summary Judgment and within 10 days of receipt of any order from a court setting a
case for trial, for matters related to this Settlement Agreement.
XIV. PARTIES BOUND
53. This Settlement Agreement shall apply to and be binding upon U.S. EPA,
the Federal Trustees, and upon Settling Parties and their heirs, successors and
assigns. Any change in ownership, political configuration, or corporate or other legal
status of a Settling Party, including, but not limited to, any transfer of assets or real or
personal property, shall in no way alter such Settling Party's responsibilities under this
Settlement Agreement. Each signatory to this Settlement Agreement certifies that he or
she is authorized to enter into the terms and conditions of this Settlement Agreement
and to bind legally the Party represented by him or her.
XV. INTEGRATION /APPENDICES
54. This Settlement Agreement and its appendices constitute the final, complete
and exclusive agreement and understanding among the Parties with respect to the
settlement embodied in this Settlement Agreement. The Parties acknowledge that
there are no representations, agreements or understandings relating to the settlement
terms other than those expressly contained in this Settlement Agreement. The
Casmalia Disposal Site 37 EPA Legion IX AOC No. 99 -02(h)
following appendices are attached to and incorporated into this Settlement Agreement:
"Appendix A" is the list of Settling Parties and their waste volumes and
settlement payment amounts.
"Appendix B" is a map of the Site.
"Appendix C" is a list of contaminants identified to date at the Site.
XVI. PUBLIC COMMENT
55. This Settlement Agreement shall be subject to a public comment period of
not less than thirty (30) days pursuant to Section 122(1) of CERCLA, 42 U.S.C. §
9622(1), and Section 7003 of RCRA, 42 U.S.C. § 6973, including, if requested, a public
hearing in the affected area, in accordance with Section 7003(d) of RCRA, 42 U.S.C. §
6973(d).
56. In accordance with Section 122(1)(3) of CERCLA, 42 U.S.C. § 9622(i)(3),
U.S. EPA or the Federal Trustees may withdraw or modify consent to this Settlement
Agreement if comments received disclose facts or considerations that indicate that this
Settlement Agreement is inappropriate, improper or inadequate.
XVIL ATTORNEY GENERAL APPROVAL
57. The Attorney General or her designee has approved the settlement
embodied in this Settlement Agreement in accordance with Section 122(g)(4) of
CERCLA, 42 U.S.C. § 9622(g)(4).
XVIII. EFFECTIVE DATE
58. The effective date of this Settlement Agreement shall be the date upon
which U.S. EPA issues written notice to Settling Parties that public comment period
pursuant to Paragraph XVI of this Settlement Agreement has closed and that
comments received, if any, do not require modification of or withdrawal from this
Settlement Agreement by U.S. EPA or the Federal Trustees.
Casmalia Disposal Site 38 EPA Region IX AOC No. 99 -02(h)
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IT IS SO AGREED AND ORDERED:
U.S. Environmental Protection Agency
Jane Diamond
Director
Superfund Division
EPA Region IX
Casmalia Disposal Site 39 EPA Region IX AOC No. 99 -02(h)
United States, on behalf of the Federal Trustees
Ellen M. Mahan
Deputy Section Chief
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
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CONSENT AND AUTHORIZATION
City of El Segundo
City of El Segundo ( "Settling Party"), by the duly authorized representative named below, hereby
consents to this Administrative Order on Consent and agrees to be bound by the teens and
conditions hereof.
AGREED THI •� DAY OF A US 2014
By:
(Signa )
e �/1 for
By: (� f �c
.r
(Print o ype Nai e)
Please elect either Settlement Option A or B by checking the appropriate box:
AK I elect to settle subject to the terms and conditions of Settlement Option A.
L7 I elect to settle subject to the terms and conditions of Settlement Option B.
Casmalia Disposal Site
EPA Region IX AOC NO. 99 -02(h)