OBJECTING TO THE PROPOSED CONSENT DECREE RELATED TO 
THE CAL COMPACT LANDFILL SUPERFUND SITE

 

Recommendation:

It is recommended that the City Council adopt the proposed resolution objecting to the Consent Decree relating to the Cal Compact Landfill site in Carson California.

 

Background:

The California Department of Toxic Substances Control (DTSC) has proposed to settle by way of consent decree, the litigation with the oil and chemical companies concerning the Cal Compact Landfill Superfund Site located in Carson California. The oil and chemical companies filed suits against thirty-eight local government entities in an effort to shift the costs for clean up of the site to local government. A number of the cities, including the City of Hermosa Beach, have been participating in a joint-defense effort of this suit represented by our City Attorney’s office.

 

Analysis:

This resolution has been proposed by the City Attorney’s Office in order to put on record each city’s formal objection to the consent decree that has been proposed to settle the primary case against the oil and chemical companies. The consent decree is not in the best interests of the local governments named in the suit for three primary reasons as outlined in the resolution. First, the consent decree encourages further litigation by specifically allowing recovery against third parties (the cities named in the suit). Second, the consent decree declares certain elements of the oil and chemical companies’ claims against the local agencies to be true, despite there having been no opportunity to introduce evidence to the contrary. Third, the consent decree allows for the collection of attorney fees from local government defendants that would not otherwise be recoverable.

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RESOLUTION NO. ______

 

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERMOSA BEACH, CALIFORNIA, OBJECTING TO THE PROPOSED CONSENT DECREE RELATED TO THE CAL COMPACT LANDFILL SUPERFUND SITE IN THE CITY OF CARSON, CALIFORNIA.

WHEREAS, the California Department of Toxic Substances Control ("DTSC") has proposed to settle by means of a consent decree among the parties to litigation brought pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 9601 et seq. ("CERCLA") and entitled Department of Toxic Substances Control et al. v. Commercial Realty Projects, Inc., and L.A. Metromall, Atlantic Richfield Company, Chevron U.S.A., Inc. Mobil Oil Corporation, Shell Oil Company, Shell Chemical Company, Standard Oil Company of California, Richfield Corporation, Long Beach Oil Development Company, Southern California Gas Company, Humble Oil & Refining Company, Tidewater Oil Company, Union Oil Company of California, Phillips Petroleum Company, Allied Signal, Inc., Unocal Corporation, and Gulf Oil Corporation , 95-8773 MI (JRx) (the "Consent Decree") concerning the Cal Compact Landfill Superfund Site in Carson, California ("the Site") and

WHEREAS, the settling defendants in these actions are primarily oil and chemical companies which deposited hazardous substances and other contaminants at the Site, and

WHEREAS, rather than pursue other responsible parties or pay the full cost of remediating the Site, certain settling defendants in the above actions ("the Oil and Chemical Companies") have filed suit against thirty-eight (38) cities, the County of Los Angeles, and five (5) County Garbage Disposal Districts (collectively, "the Local Government Defendants") ( Phillips Petroleum, et al. v. County of Los Angeles, et al . , U.S.D.C. No. 00-1938 MRP (MANx) and Shell Oil, et al. v. County of Los Angeles, et al., U.S.D.C. No. 00-1917 MRP (MANx)), seeking to have the cost of cleanup of contamination at the Site paid primarily by the Local Government Defendants, based on unsupported contentions that the Local Government Defendants sent municipal solid waste to a landfill at the Site, and

WHEREAS, there has been no factual determination by any court or government agency that the Local Government Defendants contributed to the contamination of the site, and

WHEREAS, DTSC ordered the oil and chemical companies in 1988 to clean up the Site, and they have failed to do so;

WHEREAS, DTSC previously informed the Local Government Defendants that DTSC did not intend to sue the Local Government Defendants in connection with the Site, and

WHEREAS, the Local Government Defendants were excluded by DTSC and the Oil and Chemical Companies from participating in any negotiation of the consent Decree, and

WHEREAS, the Consent Decree, to which DTSC is a party, does not conform with CERCLA, in that:

1. Encourages further litigation, including "pursu[ing] third parties to maximize, to the extent practical, the recovery,"

2. Declares certain elements of the Oil and Chemical Companies’ prima facie case against the Local Government Defendants to be true, despite there having been no opportunity for the Local Government Defendants to present evidence to the contrary, and

3. Permits the collection of the Oil and Chemical Companies’ attorneys fees from the Local Government Defendants which would not otherwise be recoverable under CERCLA, and

WHEREAS, the Consent Decree permits and requires the assignment of claims from other parties with responsibility for the Site (including past, present, and future unknown owners or developers of the Site) to the Oil and Chemical Companies and then requires the Oil and Chemical Companies to pursue these claims against the Local Government Defendants, and

WHEREAS, resolution of these matters in the manner proposed could result in little or no net cost to the Oil and Chemical Companies and a potential windfall, despite their status as potentially responsible parties at the Site, and the expense of the Local Government Defendants and their taxpayers, and

WHEREAS, the total cost of cleanup has not been determined by DTSC, and

WHEREAS, DTSC is proposing the Consent Decree to delegate its role in the supervision of the remediation of the Site to the Oil and Chemical Companies,

NOW THEREFORE, the City Council of the City of Hermosa Beach, California, resolves as follows:

 

Section 1. The City Council of the City of Hermosa Beach objects to the entry of the consent decree in the matters of D epartment of Toxic Substances Control et al. v. Commercial Realty Projects, Inc., and L.A. Metromall, Atlantic Richfield Company, Chevron U.S.A., Inc., Mobil Oil Corporation, Shell Oil Company, Shell Chemical Company, Standard Oil Company of California, Richfield Corporation, Long Beach Oil Development, Company, Southern California Gas Company, Humble Oil & Refining Company, Tidewater Oil Company, Union Oil Company of California, Phillips Petroleum Company, Allied Signal Inc., Unocal Corporation, and Gulf Oil Corporation , 95-8773 MI(JRx) because the Consent Decree is not fair and reasonable, nor is it consistent with CERCLA and federal case law.

Section 2. The Consent Decree, as proposed, is against public policy in that it seeks to transfer financial responsibility for the cleanup of environmental contamination from the for-profit entities which either own or owned the Cal Compact Superfund Site and the corporations which deposited oil and chemical related waste there, to local government entities which, at most, simply were performing the necessary municipal function of collecting and disposing of municipal solid waste, and which will cause the cost of cleanup to be ultimately and unfairly borne by the taxpayers.

Section 3. this resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this resolution.

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