Opinion
KAMALA D. HARRIS, Attorney General of California, Sarah E. Morrison, Supervising Deputy Attorney General, JAMES R. POTTER, MEGAN K. HEY, Deputy Attorneys General, Los Angeles, CA, Attorneys for Plaintiffs Department of Toxic Substances Control and Toxic Substances Control Account.
CONSENT DECREE BETWEEN PLAINTIFFS AND DEFENDANT JAMES MANCUSO; EXHIBITS
R. GARY KLAUSNER, District Judge.
I. INTRODUCTION
1. Plaintiff the State of California Department of Toxic Substances ("DTSC") and the Toxic Substances Control Account (collectively "Plaintiffs") filed a complaint in this matter pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. and the California Hazardous Substances Account Act ("HSAA"), California Health and Safety Code § 25300 et seq. against Defendants J&S Chrome Plating Co. ("J&S Chrome"), Kenfield Dev., LLC, and James Mancuso ("Complaint"). In the Complaint, Plaintiffs seek to recover costs they incurred responding to releases and/or threatened releases of hazardous substances at or from the property located at 6863 East Florence Place, Bell Gardens, California, 90201, in the County of Los Angeles, California ("the Site."). CERCLA section 107(a), 42 U.S.C. § 9607(a). Additionally, Plaintiffs seek declaratory relief under CERCLA section 113(g)(2), 42 U.S.C. § 9613(g)(2) that Defendants are jointly and severally liable for future response costs to be incurred by Plaintiffs to address releases and/or threatened releases of hazardous substances at or from the Site.
2. In the Complaint, Plaintiffs allege, in relevant part, the following:
a. The Site is located in the City of Bell Gardens across the street from residential dwellings and within 500 feet of a public school. The Los Angeles Regional Water Quality Control Board has designated drinking water as a beneficial use for some groundwater in the vicinity of the Site, and there is an inoperative drinking water well within 1000 feet of the Site.
b. From approximately 1953 to 1991, J&S Chrome operated as a metal plating facility at the Site. In the plating operations at the Site, J&S Chrome used chromium, cadmium, and zinc.
c. Settling Defendant James Mancuso was an owner of the Site from approximately 1980 until 1999.
d. In February 1999, in response to a request by J&S Chrome, and in accordance with Health and Safety Code section 25262, Cal/EPA designated DTSC as the administering agency for all investigation and remediation activities at the Site.
e. On December 18, 2002, DTSC issued an Imminent and Substantial Endangerment Determination and Remedial Action Order ("2002 Order"), which included findings that hazardous substances had been released and were present in the groundwater and/or soil at the Site in sufficient concentrations to pose a substantial danger to public health and the environment, and directing J&S Chrome to develop and implement a complete site remediation strategy for the Site.
f. J&S Chrome performed some site assessment and remediation of the Site but did not complete all of the actions required in the 2002 Order.
g. The Department completed an RI/FS for the Site. The Remedial Investigation, approved in 2003, identified total chromium and hexavalent chromium as the primary chemicals of concern on the Site. The Feasibility Study, completed in 2005, identified remedial action alternatives that could meet risk-based remedial goals, applicable or relevant and appropriate requirements, and remedial action objectives for the Site.
h. In or about February 2008, DTSC divided the Site into two Operable Units. Operable Unit 1 ("OU1") encompasses the soil contamination, and Operable Unit 2 ("OU2") relates to the groundwater contamination.
i. In April 2008, DTSC began implementation of the Remedial Action Plan for OU1. DTSC's actions included removing soil contaminated with hazardous substances and installing mechanisms to stabilize the remaining hazardous substances.
j. In February 2010, DTSC began implementation of OU2 remediation as set forth in the 2009 Remedial Action Plan for OU2. DTSC's actions included installing groundwater extraction wells and groundwater treatment facilities.
k. The remedies for both OU1 and OU2 require ongoing operation and maintenance.
3. Plaintiffs' response actions were 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, the following activities: investigation; removal/remediation actions; enforcement/cost recovery; oversight; public participation; and compliance with the California Environmental Quality Act. DTSC's response actions were not inconsistent with the National Contingency Plan, 40 C.F.R. Part 300.
4. As of June 2015, Plaintiffs' unreimbursed Response Costs related to the Site exceeded $8 million. Plaintiffs will continue to incur Response Costs related to the Site, including enforcement costs to litigate the Complaint.
5. Settling Defendant filed an answer to the Complaint on September 12, 2014, ECF No. 17 and an amended answer on October 10, 2014, ECF No. 26.
6. On April 20, 2015, the Court issued an Order Pursuant to Stipulation Granting, in Part, Plaintiffs' Motion for Partial Summary Judgment On the Liability of J&S Chrome Plating and James Mancuso, ECF No. 48, that established that "[Settling Defendant] is liable for all response costs incurred by DTSC in responding to the release or threatened release of hazardous substances at the Site, " but preserved [Settling Defendant's] right to assert certain affirmative defenses at trial. The Order also establishes that [Settling Defendant] was an operator of the Site at the time of disposal of hazardous substances at the Site. A copy of that Order is attached hereto as Exhibit A.
7. Settling Defendant claimed inability to pay response costs and submitted financial information for DTSC's review. Settling Defendant affirms that the financial information provided to DTSC is true and correct.
8. DTSC has reviewed the financial information submitted by Settling Defendant to determine whether he is financially able to pay response costs incurred and to be incurred at the Site. In entering into this settlement, Plaintiffs have relied on the financial information provided by Settling Defendant. The Parties acknowledge that in 2006, Settling Defendant and his wife sold the shares of J&S Chrome and that the purchaser, an entity called 6863 East Florence Place, LLC, agreed to fully indemnify Settling Defendant for any losses related to the release of hazardous materials at the Site. The Parties further acknowledge that Settling Defendant is a named insured on policies that may provide indemnification for the contamination at issue in this matter. However, Settling Defendant makes no representations that indemnity coverage is provided by said insurance policies.
9. 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.
THEREFORE, the Court, with the consent of the Parties to this Consent Decree, hereby ORDERS, ADJUDGES, AND DECREES, as follows:
II. JURISDICTION
10. 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 Defendant waives all objections and defenses that Settling Defendant may have to the jurisdiction of the Court or to venue in this district. Settling Defendant shall not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.
11. The Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of this Consent Decree if necessary.
III. SETTLEMENT OF DISPUTED CLAIMS
12. This Consent Decree resolves Plaintiffs' claims against Settling Defendant in the above-captioned action. Plaintiffs agree to resolve Settling Defendant's liability in this action in exchange for consideration from Settling Defendant, including payment by Settling Defendant to reimburse a portion of Plaintiffs' Response Costs incurred and to be incurred at or 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 Defendant of any issue of law or fact or of any violation of law, beyond those issues of fact and law established in the Partial Summary Judgment Order, 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 Defendant may have in any other or further legal proceeding.
14. The Parties consent to, and shall not challenge entry of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment between and among the Parties.
IV. DEFINITIONS
15. 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.
16. "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.
17. "Effective Date" shall mean the date the Court enters an Order approving this Consent Decree.
18. "Parties" shall mean Plaintiffs and James Mancuso.
19. "Plaintiffs" shall mean DTSC and the Toxic Substances Control Account.
20. "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.
21. "Settling Defendant" shall mean James Mancuso.
22. "Site" shall mean the property located at 6863 East Florence Place, Bell Gardens, California, 90201, in the County of Los Angeles, California. 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 Site, including in the soil and/or groundwater.
V. SETTLING DEFENDANT'S OBLIGATIONS
23. Settling Defendant or his designee shall pay DTSC $65,000 within thirty (30) days of the Effective Date. Settling Defendant, or his designee shall make payment in accordance with Paragraph 25.
24. Settling Defendant agrees to cooperate, and perform any appropriate act to assist Plaintiffs' continuing response actions related to the Site including cost recovery efforts for the Site. Such actions shall include but not be limited to providing evidence in any dispute about insurance coverage.
25. Settling Defendant's payment obligations shall be deemed to have been satisfied in full upon: (1) Settling Defendant's delivery of the payment due under Paragraph 23. The payment specified in Paragraph 23 above, shall be made by 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 300255."
a. The payments shall be sent to:
b. A Copy of the check shall be mailed to:
26. This Consent Decree is conditioned upon full execution of the Settling Defendant's obligations in in Paragraphs 24 through 25. If these conditions are not met, then this Consent Decree shall be voidable at the discretion of DTSC, and DTSC may proceed to litigate the Complaint against Settling Defendant.
VI. ACCESS TO INFORMATION
27. Within thirty (30) calendar days of the Effective Date, Settling Defendant shall have provided to DTSC copies of any and all records, documents, and information within his possession or control, or that of his 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.
28. If after the Effective Date, Settling Defendant obtains or discovers any records, documents or information described in Paragraph 27 not previously provided to DTSC, Settling Defendant agrees to provide DTSC with copies of the additional records, documents or information within ten (10) calendar days of the date Settling Defendant discovers or obtains the records, documents or information.
VII. COVENANT NOT TO SUE BY PLAINTIFFS
29. Except as expressly provided in Section VIII (Plaintiffs' Reservation of Rights) of this Consent Decree, Plaintiffs covenant not to sue Settling Defendant pursuant to CERCLA or the HSAA to: (a) recover Plaintiffs' Response Costs related to the Site, including response costs associated with groundwater remediation relating to any hazardous substances released at the Site; or (b) require Settling Defendant 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. This Covenant Not to Sue is conditioned upon the complete and satisfactory performance by Settling Defendant of all his obligations under this Consent Decree. This Covenant Not to Sue shall be revoked and deemed not effective if Settling Defendant fails to fully perform on his obligations stated in by Paragraphs 23 through 24 of this Consent Decree.
VIII. PLAINTIFFS' RESERVATION OF RIGHTS
30. Claims Regarding Other Matters. Plaintiffs reserve, and this Consent Decree is without prejudice to, all rights against Settling Defendant with respect to all matters not expressly included within Plaintiffs' Covenant Not to Sue (Section VII).
31. Reservation of Claims. Plaintiffs reserves, and this Consent Decree is without prejudice to, all rights against Settling Defendant with respect to the following matters:
a. Failure of Settling Defendant to meet the requirements of this Consent Decree;
b. Damage to natural resources, as defined in CERCLA section 101(6), 42 U.S.C. § 9601(6), including all costs incurred by any natural resources trustees;
c. Liability resulting from Settling Defendant's introduction of any hazardous substances, pollutant, or contaminant to the Site after the Effective Date;
d. Liability resulting from overt acts by Settling Defendant after the Effective Date that cause the exacerbation of the hazardous substance conditions existing at or from the Site;
e. Claims based on liability arising from the past, present, or future disposal of hazardous substances at sites or locations other than the Site and
f. Claims based on criminal liability.
32. Financial Information. Notwithstanding any other provision in the Consent Decree, DTSC reserves, and this Consent Decree is without prejudice to, the right to institute proceedings in this action or in a new action, and/or to issue an administrative order seeking to compel Settling Defendant to perform response activities at the Site and/or to pay DTSC for additional response costs, if the financial information provided by Settling Defendant or the financial certification he made in Paragraph 7 of this Consent Decree, is false or, in any material respect, inaccurate.
33. Government Authority. Except as expressly provided in the Consent Decree, nothing in the Consent Decree is intended nor shall it be construed to preclude DTSC from exercising its authority under any law, statute or regulation. Furthermore, nothing in the Consent Decree is intended, nor shall it be construed, to preclude any other state agency, department, board or entity or any federal entity from exercising its authority under any law, statute or regulation.
34. Claims Against Other Persons. DTSC reserves, and this Consent Decree is without prejudice to, all rights, claims, and causes of action Department may have against any person other than Settling Defendant. Nothing in this Consent Decree is intended to be nor shall it be construed as a release, covenant not to sue, or compromise of any claim or cause of action, which DTSC may have against any person or other entity not a signatory to this Consent Decree.
IX. COVENANT NOT TO SUE BY SETTLING DEFENDANT
35. Settling Defendant covenant not to sue, and agree not to assert any claims or causes of action against Plaintiffs or any DTSC contractors or employees that arise out of the transaction or occurrence that is the subject matter of the Plaintiffs' 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 the DTSC's response actions at the Site.
36. In any legal proceedings that Plaintiffs may initiate against Settling Defendant for non-compliance with this Consent Decree in such proceedings, Settling Defendant may raise any and all defenses that Settling Defendant deems to be relevant to the issue of whether or not it has complied with the terms of the Consent Decree.
X. EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
37. With regard to claims for contribution against Settling Defendant for "Matters Addressed" in this Consent Decree, the Parties agree, and the Court finds as follows:
a. This Consent Decree constitutes a judicially approved settlement within the meaning of CERCLA section 113(f)(2), 42 U.S.C. § 9613(f)(2).
b. This Consent Decree requires that Settling Defendant pay certain costs with respect to its liability at the Site.
c. Settling Defendant is entitled to the contribution protection provided by CERCLA section 113(f)(2), 42 U.S.C. § 9613(f)(2), and by state statutory and common law for the "Matters Addressed" in this Consent Decree, except for actions and claims identified in Section VIII (Plaintiffs' Reservation of Rights).
38. "Matters Addressed". The "Matters Addressed" in this Consent Decree are all response actions taken or to be taken and all response costs incurred or to be incurred, at or in connection with the Site, by Plaintiffs, or any other person.
39. The protection provided for in this Section X is conditioned upon compliance by Settling Defendant with his obligations under Paragraphs 24 through 26 of this Consent Decree.
40. Nothing in this Consent Decree limits or impairs the right of Plaintiffs to pursue any other person for unrecovered Response Costs incurred by Plaintiffs.
XI. NOTIFICATION
41. Notification to or communication among the Parties as required or provided for in this Consent Decree shall be addressed as follows:
For Plaintiffs:
For Settling Defendants:
XII. GENERAL PROVISIONS
42. Parties Bound. 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.
43. No Rights in Other Parties. Except as provided in Paragraph 43 regarding parties bound, nothing in this Consent Decree shall be construed to create any rights in, or grant any cause of action to, any person not a party to this Consent Decree.
44. No Waiver of Enforcement. The failure of DTSC to enforce any provision of this Consent Decree shall in no way be deemed a waiver of such provision or in any way affect the validity of this Consent Decree. The failure of DTSC to enforce any such provision shall not preclude it from later enforcing the same or any other provision of this Consent Decree.
45. Attorneys' Fees. Except as expressly provided in this Consent Decree, the Parties will not seek to recover attorneys' fees and/or litigation costs against each other.
46. Final Agreement. This Consent Decree constitutes the final, complete and exclusive agreement and understanding between the Parties with respect to the settlement embodied in this Consent Decree.
47. Modifications. This Consent Decree may be modified only upon written approval of the Parties and with the consent of the Court.
48. Counterparts. This Consent Decree may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
49. Agent. Settling Defendant has appointed and authorized the agents identified in Section 41 to this Consent Decree to receive notices with respect to all matters arising under or relating to this Consent Decree.
XIII. ENTRY OF THE CONSENT DECREE
50. This Consent Decree shall be lodged with the Court for a period of not less than thirty (30) calendar days. The Consent Decree also is subject to a public comment period of not less than thirty (30) calendar 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 Defendant consents to the entry of this Consent Decree without further notice.
51. 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.
52. 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.
IT IS SO ORDERED, ADJUDGED, AND DECREED.
EXHIBIT A
Plaintiffs in this matter, the State of California Department of Toxic Substances Control and California Toxic Substances Control Account (together, "Plaintiffs") filed a complaint alleging inter alia that Defendants J&S Chrome Plating Company and James Mancuso (together "Defendants") are liable for Plaintiffs' response costs incurred at the J&S Chrome Plating Company Site (the "Motion") pursuant to section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a).
On April 13, 2015, Plaintiffs filed a Motion for Partial Summary Judgment on the liability of Defendants for response costs that Plaintiffs incurred at the Site. Thereafter, Plaintiffs and Defendants (together "Parties") stipulated to the granting of the motion in part as stated herein.
In accordance with the Parties' stipulation, the court finds that Defendants J&S Chrome Plating Company and James Mancuso are liable under CERCLA section 107, 42 U.S.C. § 9607(a), as follows:
UNDISPUTED FACTS
1. The property located at 6863 East Florence Place, Bell Gardens, California, 90201 ("the Site") is an area where hazardous substances, including hexavalent chromium, cadmium, and zinc have been deposited, stored, disposed of, or placed or otherwise come to be located in soil and groundwater.
2. The Site constitutes a "facility" within the meaning of 42 U.S.C. § 9601(9).
3. Plaintiffs have incurred costs in responding to the release or threatened release of hazardous substances at the Site.
4. J&S Chrome Plating Company is the current owner of the Site.
5. From 1980 through 1999, James Mancuso was an owner of the Site.
6. Hazardous substances were disposed at the Site. The period of disposal of hazardous substances included the period between 1981 through 1986.
7. J&S Chrome Plating Company and James Mancuso were each operators of the Site at the time of disposal of hazardous substances at the Site.
CONCLUSIONS OF LAW
1. The Site constitutes a "facility" within the meaning of 42 U.S.C. § 9601(9).
2. The Site is a "facility" from which there has been a "release" or "threatened release" of "hazardous substances" within the meaning of CERCLA section 101, 42 U.S.C. § 9601.
3. Defendant J&S Chrome Plating Company is liable for all response costs incurred by DTSC in responding to the release or threatened release of hazardous substances at the Site.
4. Defendant James Mancuso is liable for all response costs incurred by DTSC in responding to the release or threatened release of hazardous substances at the Site.
5. The amount of Plaintiff's responses costs remain to be determined, either by further motion or at trial of this matter. Defendants reserve the right to argue that (1) they are not liable for response costs that they demonstrate are inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR § 300 ("NCP"); (2) they are not liable for costs caused by releases of hazardous substances from the former Chrome Crankshaft Company facility to the extent they demonstrate that harms arising from releases of hazardous substances from the Chrome Crankshaft Company property are divisible from harms arising from releases of hazardous substances from 6863 East Florence Place; and (3) they are not liable for response costs to the extent they demonstrate that recovery of such costs is barred by the applicable statute of limitations. Plaintiffs reserve the right to contest Defendants' arguments.
IT IS SO ORDERED.