CC SR 20210202 K - BKK Landfill Tolling Agreement
CITY COUNCIL MEETING DATE: 02/02/2021
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to authorize the Mayor to execute the Fifth Tolling
Agreement with the BKK Working Group related to the BKK Corporation Landfill in West
Covina.
RECOMMENDED COUNCIL ACTION:
(1) Authorize the Mayor to execute the attached Fifth Tolling Agreement between the
BKK Working Group and the City of Rancho Palos Verdes.
FISCAL IMPACT: None.
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Lauren Ramezani, Senior Administrative Analyst
REVIEWED BY: Ramzi Awwad, Deputy Director of Public Works
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Fifth Tolling Agreement (page A-1)
BACKGROUND AND DISCUSSION:
The BKK Landfill in West Covina (BKK) is a contributor to hazardous substance
contamination of soil and groundwater in the San Gabriel Valley. Because cleanup
involves groundwater remediation, it will be many years before it is completed. The
Department of Toxic Substances Control (DTSC) is overseeing the cleanup and has
identified a group of 33 public and private entities that DTSC believes is, in part,
responsible for the contamination. This group is called the BKK Working Group and,
thus far, the BKK Working Group has conducted and paid for cleanup efforts. Because
many other entities, both public and private, are likely contributors to the problem by
generating/transporting/depositing waste at BKK, the law allows for contribution claims
to be alleged against such entities, and once total costs are reasonably known to the
Working Group, it will place the other allegedly-responsible parties into groups (e.g.,
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cities, waste haulers, private entities, etc.) and attempt to negotiate consent decrees
with each group based on their “fair share” of the cleanup costs (i.e., a buyout).
Because total costs are as yet unknown, it is premature to negotiate these consent
decrees, and because the statute of limitations is (generally speaking) three years from
the date a cleanup cost is incurred, the BKK Working Group seeks successive tolling
agreements so it neither loses recoverable costs nor is forced to bring successive
lawsuits.
To date, the BKK Working Group has entered into two consent decrees with DTSC to
take certain limited actions at the BKK facility. In 2009, the City entered into a Tolling
Agreement with the BKK Working Group to toll the statute of limitations on certain
claims that the BKK Working Group could assert against the City, or vice versa, arising
from activities at the BKK site. Subsequent tolling agreements entered in 2012, 2015
and 2018 have extended the statute of limitations for an additional three years each.
The BKK Working Group has continued to work with DTSC to investigate the extent and
the causes of the contamination at the BKK site, and to perform limited response
actions.
The Fourth Tolling Agreement expires in early 2021 and should be extended. The Fifth
Tolling Agreement (Attachment A) will toll the running of the statute of limitations on
claims related to the response activities at the BKK site for an additional period of three
years, from 2021 to 2024. This will provide all involved parties with additional time within
which to explore the basis for the claims and attempt to reach a mutually-agreeable
settlement of such claims without the need for litigation. The Fifth Tolling Agreement
does not constitute an admission of fact or of liability. It is simply intended to provide the
parties with additional time to consider settlement options. The agreement extends the
statute of limitations three more years to 2024. Absent a tolling agreement, the BKK
Working Group will be forced to decide if it wants to take legal action against the City
now.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available
for the City Council’s consideration:
1. Do not authorize the Mayor to execute the attached Fifth Tolling Agreement.
2. Take other action, as deemed appropriate.
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FIFTH TOLLING AGREEMENT
This Fifth Tolling Agreement (“Agreement”) is made and entered into by and between
the BKK Working Group and the CITY OF RANCHO PALOS VERDES. The BKK Working
Group is an unincorporated association of the entities identified in Exhibit A, who in October
2016 entered into a First Amended Third Partial Consent Decree with the California Department
of Toxic Substances Control (“DTSC”) related to the BKK Corporation Landfill Facility
(“DTSC Consent Decree”), located in West Covina, California (“Facility”). Hereinafter, the
BKK Working Group and the CITY OF RANCHO PALOS VERDES are singularly referred to
as a “Party” and collectively referred to as the “Parties.”
Recitals
A. The BKK Working Group has notified the CITY OF RANCHO PALOS
VERDES that it may have legal liability based upon the disposal of waste material at the Facility
under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
§§ 9601, et seq. The CITY OF RANCHO PALOS VERDES denies such liability for purposes
of this Agreement.
B. The Parties entered into a tolling agreement (“2009 Tolling Agreement”) effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the CITY OF RANCHO PALOS VERDES or vice versa relating to
the Facility until 2012.
C. The Parties entered into a Second Tolling Agreement effective in 2012 that tolled
any applicable statute of limitations governing claims that the BKK Working Group could assert
against the CITY OF RANCHO PALOS VERDES or vice versa relating to the Facility until
2015.
D. The Parties entered into a Third Tolling Agreement effective in 2015 that tolled
any applicable statute of limitations governing claims that the BKK Working Group could assert
against the CITY OF RANCHO PALOS VERDES or vice versa relating to the Facility until
2018.
E. The Parties entered into a Fourth Tolling Agreement effective in 2018 that tolled
any applicable statute of limitations governing claims that the BKK Working Group could assert
against the CITY OF RANCHO PALOS VERDES or vice versa relating to the Facility until
2021.
F. The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
G. This Agreement is a successor agreement to the 2009 Tolling Agreement, the
Second Tolling Agreement, the Third Tolling Agreement, and the Fourth Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the CITY OF RANCHO PALOS VERDES agree that all statutes of limitations and any
A-1
other statute, law, rule or principle of equity of similar effect, including provisions under the
California Government Claims Act, California Gov’t Code §§ 900-960.8 (collectively, “Statute
of Limitations”) applicable to any rights, claims, causes of action, counterclaims, crossclaims,
defenses, and claims act presentation regarding, based upon, or arising out of disposal of waste
material at the Facility, or the ownership or operation of the Facility which the BKK Working
Group could assert against the CITY OF RANCHO PALOS VERDES, or which the CITY OF
RANCHO PALOS VERDES could assert against the BKK Working Group as of the Effective
Date (“Claims”) shall be tolled for the period between the Effective Date and the Termination
Date, and this tolling period shall be excluded from all computations of any applicable period of
limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time-related defense otherwise applicable to the
Claims, to the extent such limitations period or other time-related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and the CITY OF RANCHO PALOS VERDES agree
not to initiate litigation concerning the investigation, remediation, or the recovery of costs
relating to the Facility against the other Party between the Effective Date and the Termination
Date. However, this provision shall not preclude any Party from seeking information pursuant to
the California Public Records Act (“PRA”), California Gov’t Code §§ 6250-6276.48 from
another Party or a third Party relating to waste disposed at or liability associated with the Facility
or from enforcing rights to such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time-related defense.
6. The BKK Working Group and the CITY OF RANCHO PALOS VERDES agree
that this Agreement shall not apply to any third party and shall not revive any rights, claims,
causes of action, counterclaims, crossclaims or defenses that are already barred by an applicable
provision of law as of the Effective Date. Notwithstanding the above, this Agreement shall inure
to the benefit of and be binding upon any and all legal successors to or assigns of the Parties.
Nothing expressed or implied in this Agreement is intended to confer on any person other than
the Parties and their legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of: (a) January 2,
2024, or (b) fifteen (15) days after any Party, in its sole discretion, gives written notification of
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termination to the other Party. Notwithstanding the termination of this Agreement, the Statute of
Limitations shall remain tolled for an additional sixty (60) days following the Termination Date.
This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Parties agree in writing.
12. The Effective Date of this Agreement shall be January 2, 2021.
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Group and its individual members
By:_____________________________________ Date:___________________
Name: James J. Dragna, Esq. Title: Attorney for the BKK Working Group
and its Members identified in Exhibit A
CITY OF RANCHO PALOS VERDES
By:_____________________________________ Date:___________________
Print Name: ______________________________ Title:____________________
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CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name: ________________________________
Title: _________________________________
Company:______________________________
Address: _______________________________
_______________________________
_______________________________
Phone: _________________________________
Email: _________________________________
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Exhibit A
• American Cyanamid
• American Honda Motor Co., Inc.
• Ameron International Corp.
• Anadarko E&P Onshore LLC
• Ashland Chemical Company
• Atlantic Richfield Company
• Baker Hughes Oilfield Operations, Inc.
• Baker Petrolite LLC
• Bayer Cropscience Inc.
• Big Heart Pet Brands
• The Boeing Company
• California Resources Corporation
• Chevron Environmental Management Company
• Chevron Marine LLC
• City Of Los Angeles, Acting By And Through The Los Angeles Department Of Water
And Power
• ConocoPhillips Company
• Crosby & Overton, Inc.
• The Dow Chemical Company
• Ducommun Aerostructures, Inc.
• Essex Chemical Corporation
• ExxonMobil Corporation
• Filtrol Corporation
• Gemini Industries, Inc.
• General Dynamics Corporation
• General Latex and Chemical Corporation
• Hewlett-Packard Company
• Honeywell International Inc.
• Hugo Neu-Proler
• Huntington Beach Company
• Kal Kan Foods Inc.
• Lockheed Martin Corporation
• Mars, Inc.
• Montrose Chemical Corp. of California
• Mortell Company
• Morton International, Inc.
• National Steel And Shipbuilding Company
• Northrop Grumman Corporation
• Oxy USA Inc.
• Quemetco, Inc.
• Raytheon Company
• Rockwell Automation, Inc.
A-5
• Rohm & Hass Company
• Rohr, Inc.
• San Diego Gas & Electric Company
• Shell Oil Company
• Smith International, Inc.
• Southern California Edison Company
• Southern California Gas Company
• The Procter & Gamble Manufacturing Company
• THUMS Long Beach Company
• Todd Pacific Shipyards Corp.
• Union Carbide Corporation
• Union Pacific Railroad / Southern Pacific Transportation Company
• Unisys Corporation
• United States Steel Corporation
• United Technologies Corporation
• Univar USA, Inc.
• Van Waters & Rogers
• Vigor Shipyards, Inc.
• Xerox Corporation
A-6
A-7
FOURTH TOLLING AGREEMENT
This FourthTolling Agreement ("Agreement") is made and entered into by and between
the BKK Working Group and the City of Rancho Palos Verdes. The BKK Working Group is an
unincorporated association of sixty-three entities, identified in Exhibit A, who in October 2016
entered into a First Amended Third Partial Consent Decree with the California Department of
Toxic Substances Control ("DTSC") related to the BKK Corporation Landfill Facility ("DTSC
Consent Decree"), located in West Covina, California ("Facility"). Hereinafter, the BKK
Working Group and the City of Rancho Palos Verdes are singularly referred to as a "Party" and
collectively referred to as the "Parties."
Recitals
A. The BKK Working Group has notified the City of Rancho Palos Verdes that it
may have legal liability based upon the disposal of waste material at the Facility under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601,
et seq. The City of Rancho Palos Verdes denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement ("2009 Tolling Agreement") effective
in 2009 that tolled any applicable statute oflimitations governing claims that the BKK Working
Group could assert against the City of Rancho Palos Verdes or vice versa relating to the Facility
until 2012.
C. The Parties entered into a Second Tolling Agreement effective in 2012 that tolled
any applicable statute oflimitations governing claims that the BKK Working Group could assert
against the City of Rancho Palos Verdes or vice versa relating to the Facility until2015.
D. The Parties entered into a Third Tolling Agreement effective in 2015 that tolled
any applicable statute of limitations governing claims that the BKK Working Group could as$ert
against the City of Rancho Palos Verdes or vice versa relating to the Facility until 2018.
E. The Parties desire to continue to toll any applicable statute oflimitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
F. This Agreement is a successor agreement to the 2009 Tolling Agreement, the
Second Tolling Agreement, and tbe Third Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the City of Rancho Palos Verdes agree that all statutes of limitations and any other statute,
law, rule or principle of equity of similar effect, including provisions under the California
Government Claims At, California Gov't Code§§ 900-960.8 (collectively, "Statute of
Limitations") applicable to any rights, claims, causes of action, counterclaims, crossclaims,
defenses, and claims act presentation regarding, based upon, or arising out of disposal of waste
material at the Facility, or the ownership or operation of the Facility which the BKK Working
Group could assert against the City of Rancho Palos Verdes, or which the City of Rancho Palos
DB3/20 !596!3 1.1
A-8
. Verdes could assert against the BKK Working Group as of the Effective Date ("Claims") shall
be tolled for the period between the Effective Date and the Tennination Date, and this tolling
period shall be excluded from all computations of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time-related defense otherwise applicable to the
Claims, to the extent such limitations period or other time-related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and the City of Rancho Palos Verdes agree not to
initiate litigation concerning the investigation, remediation, or the recovery of costs relating to
the Facility against the other Party between the Effective Date and the Termination Date.
However, this provision shall not preclude any Party from seeking information pursuant to the
California Public Records Act ("PRA"), California Gov't Code§§ 6250-6276.48 from another
Party or a third Party relating to waste disp<Jsed at or liability associated with the Facility or from
enforcing rights to such information under the PRA.
4. Each of the undersigned certifies that he or she is fully authorized to enter into the
tenns and conditions of this Agreement and to legally bind such party to all tenns and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution ofthis Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time-related defense.
6. The BKK Working Group and the City of Rancho Palos Verdes agree that this
Agreement shall not apply to any third party and shall not revive any rights, claims, causes of
action, counterclaims, crossclaims or defenses that are already barred by an applicable provision
of law as of the Effective Date. Notwithstanding the above, this Agreement shall inure to the
benefit of and be binding upon any and all legal successors to or assigns of the Parties. Nothing
expressed or implied in this Agreement is intended to confer on any person other than the Parties
and their legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Tennination Date of this Agreement shall be the earlier of: (a) January 2,
2021, or (b) fifteen (15) days after any Party, in its sole discretion, gives written notification of
termination to the other Party. Notwithstanding the termination of this Agreement, the Statute of
Limitations shall remain tolled for an additional sixty (60) days following the Tennination Date.
This provision shall survive the tennination of the Agreement.
9. The Parties shall preserve and maintain, during the tenn of the tolling period, and
for a minimum of 90 days after tennination of the tolling period, at least one legible copy of all
DB3/ 20159613l.l 2
A-9
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement, promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
Pmiies agree in writing.
12. The Effective Date of this Agreement shall be January 2, 2018.
IN WITNESS THEREOF, the Patiies have executed this Agreement on the dates set forth
below.
BKK Working
Name:
City of Rancho Pa os Verdes
By: dLA-S.-6'1 d ~~ I
Print Name: 0 us vfrU 73LDo k£--
Date: -----------------
Title: Attorney for the BKK Working Group
Date: / -3--/ J/
Title: Mayor
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name: David f. Aleshire, Esq.
Title: City Attorney for the City ofRancho Palos Verdes
Company: Aleshire & W ynder, LLP
Address: 18881 Von Karman Ave., Suite 1700
Irvine, CA 92612
Phone: 949-223-1180
Email: daleshire@awattorneys.com
DB3/201596!31.1 3
A-10
Attachment A
• American Honda Motor Co., Inc.
• Ameron International Corp.
• Anadarko E&P Onshore LLC
• Ashland Chemical Company
• Atlantic Richfield Company
• Azusa Land Reclamation, Inc.
• Baker Hughes Oilfield Operations, Inc.
• Baker Petrolite LLC
• Bayer Cropscience Inc.
• Big Heart Pet Brands
• The Boeing Company
• Chemical Waste Management, Inc.
• Chevron Environmental Management Company
• Chevron Marine LLC
• City Of Los Angeles, Acting By And Through The Los Angeles Department Of Water
And Power
• ConocoPhillips Company
• Crosby & Overton, Inc.
• The Dow Chemical Company
• Ducommun Aerostructures, Inc.
• Essex Chemical Corporation
• ExxonMobil Corporation
• Filtrol Corporation
• Gemini Industries, Inc.
• General Dynamics Corporation
• General Latex and Chemical Corporation
• Hewlett-Packard Company
• Honeywell International Inc.
• Hugo Neu-Proler
• Huntington Beach Company
• Kal Kan Foods Inc.
• Lockheed Martin Corporation
• Mars, Inc .
• Montrose Chemical Corp. of California
• Mortell Company
• Morton International, Inc .
• National Steel And Shipbuilding Company
• Northrop Grumman Corporation
• Quemetco, Inc .
• Raytheon Company
• Rockwell Automation, Inc .
• Rohm & Hass Company
• Rohr, Inc .
• San Diego Gas & Electric Company
• Shell Oil Company
• Southern California Edison Company
DB3/ 201596131.1 4
A-11
• Southern California Gas Company
• The Procter & Gamble Manufacturing Company
• THUMS Long Beach Company
• Todd Pacific Shipyards Corp.
• Union Carbide Corporation
• Union Pacific Railroad I Southern Pacific Transportation Company
• Unisys Corporation
• United States Steel Corporation
• United Technologies Corporation
• Univar USA, Inc.
• USA Waste of California, Inc.
• Van Waters & Rogers
• Vigor Shipyards, Inc.
• Waste Management Collection And Recycling, Inc.
• Waste Management of California, Inc.
• Waste Management Recycling and Disposal Services of California, Inc.
• Western Waste Industries
• Xerox Corporation
DB3/201596131.1 5