ML030520137
| ML030520137 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 02/06/2003 |
| From: | Nelson T Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Pacific Gas & Electric Co |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California |
| References | |
| 01-30923 DM, 94-0742640 | |
| Download: ML030520137 (17) | |
Text
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9 10 11 12 HOWAD 13 FICE NEMEROVSKI CANADY 14 FALK SRABKIN 15 16 17 18 19 20 21 22 In re PACIFIC GAS and ELECTRIC COMPANY, a California corporation, Debtor.
Federal I.D. No. 94-0742640 Case No. 01-30923 DM Chapter 11 Case Date:
Time:
Place:
Judge:
March 27, 2003 1:30 p.m.
235 Pine Street, 22nd Floor San Francisco, California Hon. Dennis Montali DECLARATION OF TERRY NELSON IN SUPPORT OF DEBTOR'S NOTICE OF MOTION AND MOTION FOR AN ORDER AUTHORIZING COMPROMISE OF CLAIMS OF CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD PURSUANT TO A CONSENT JUDGMENT NELSON DECL. RE PG&E'S MOTION FOR ORDER AUTH. COMP. CLAIMS WITH CRWQCB JAMES L. LOPES (No. 63678)
JEFFREY L. SCHAFFER (No. 91404)
KENNETH A. NEALE (No. 126904)
.0 5/
-3 HOWARD, RICE, NEMEROVSKI, CANADY, FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4065 Telephone:
415/434-1600 Facsimile:
415/217-5910 Attorneys for Debtor and Debtor in Possession PACIFIC GAS and ELECTRIC COMPANY UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 23 24 25 26 27 28
1 I, Terry Nelson, declare as follows:
2
- 1. 1 am the Director of Fossil Generation and Asset Management for Pacific Gas 3
and Electric Company, the debtor and debtor in possession in the above-captioned 4
Chapter 11 case (the "Debtor" or "PG&E"). I have been in my current position since 5
September 1, 2002. The Declaration is based on my personal knowledge of the Debtor's 6
prior operations at the Moss Landing Power Plant (the "Plant"). If called as a witness, I 7
could and would testify competently to the facts stated herein.
8
- 2.
I make the declaration in support of Debtor's Motion For An Order Authorizing Compromise Of Claims Of California Regional Water Quality Control Board Pursuant To A 10 Consent Judgment (the "Motion") submitted by PG&E. The Application seeks authority to 11 enter into a Consent Judgment with the California Regional Water Quality Control Board 12
("CRWQCB") in the form attached hereto as Exhibit A ("Consent Judgment").
HowaD 13 FC
- 3.
PG&E owned and operated the Plant from 1971 through 1998, at which time the NEMU,0\\15K]
cANDY 14 FAL.K K^MN Plant was sold to Duke Energy Moss Landing Company LLC. The Plant generates 15 electricity using natural gas for power generation and seawater for cooling purposes. After 16 being used for cooling purposes, the seawater is discharged into certain waterways. In 17 connection with the discharge of heated seawater from the Plant, PG&E held certain 18 National Pollution Discharge Elimination System Permits (the "NPDES Permits") issued by 19 the CRWQCB. In April 2000, PG&E reported to the CRWQCB that PG&E had discharged 20 heated cooling water from certain intake structures of the Power Plant into the Moss Landing 21 Harbor in a practice known as "backflushing." These discharges occurred beginning in 1974 22 and ending in 1998.
23
- 4. The CRWQCB has informed PG&E that it believes that the backflushing of 24 heated cooling water into Moss Landing Harbor violated PG&E's NPDES Permits. The 25 CRWQCB has further informed PG&E that such discharges violated Section 301 of the 26 Clean Water Act (33 U.S.C. § 1311) and Section 13385 of the California Water Code and 27 that such violations could subject PG&E to substantial civil penalties. PG&E has disputed 28 NELSON DECL. RE PG&E'S MOTION FOR ORDER AUTH. COMP. CLAIMS WITH CRWQCB
-I-
I these allegations.
2
- 5. Since the time that PG&E reported the discharges to the CRWQCB, the parties 3
have been engaged in settlement discussions. Subject to the approval of this Court and the 4
California Superior Court for the County of Monterey, PG&E and the CRWQCB have 5
agreed to a settlement of CRWQCB's claims pursuant to the terms of the Consent Judgment.
6
- 6. As described in more detail in the Consent Judgment, pursuant to the proposed 7
settlement, PG&E would agree to pay $5,000,000 to fund the following environmental 8
projects:
9
- a.
Non-Point Source Projects Fund in the amount of $2,850,000; 10
- b.
Non-Point Source Monitoring And CCAMP Funds in the amount of 11
$1,900,000; and 12
- c.
Administration Fund in the amount of $250,000.
HoWARD 13 PG&E would have no obligation to form, manage, administer or further fund any of the iCE NW~vEKQV'5KI cADKY 14 foregoing projects.
SABKIN 15
- 7.
Also pursuant to the Consent Judgment, the CRWQCB would release PG&E 16 from all claims it may assert arising out of the discharge of heated cooling water from the 17 Plant during the period of PG&E's ownership effective at the time the payments described in 18 Paragraph 6 above are made.
19
- 8.
For the reasons specified in the Motion, I believe that the settlement of this matter 20 pursuant to the Consent Judgment is fair and equitable and in the best interest of PG&E and 21 the estate.
22 I declare under penalty of perjury under the laws of the United States of America and 23 the State of California that the foregoing is true and correct. Executed this C4,day of 24 Tj-Ž2s., 2003, at San Francisco, California.
25 26 TERRY NELSON 27 28 WD 012703/1-1419925/1052072/v2 NELSON DECL. RE PG&E'S MOTION FOR ORDER AUTH. COMP. CLAIMS WITH CRWQCB 1 BILL LOCKYER, Attorney General of the State of California 2 MARY E. HACKENBRACHT Senior Assistant Attorney General 3 MARILYN H. LEVIN Deputy Attorney General 4 State Bar No. 92800 300 South Spring Street 5
Los Angeles, CA 90013 Telephone: 213-897-2612 6
Fax: 213-897-2802 Attorneys for PEOPLE OF THE STATE OF 7 CALIFORNIA ex rel., CENTRAL COAST REGIONAL WATER QUALITY CONTROL 8 BOARD 9
SUPERIOR COURT OF CALIFORNIA 10 10 COUNTY OF SAN LUIS OBISPO 11 12 Case No.:
PEOPLE OF THE STATE OF CALIFORNIA ex 13 rel., CENTRAL COAST REGIONAL WATER QUALITY CONTROL BOARD, CONSENT JUDGMENT 14 Plaintiffs, 15 V.
16 PACIFIC GAS AND ELECTRIC COMPANY, 17 Defendant.
18
- 1.
INTRODUCTION 19 1.1 On
,2002, the People of the State of California, ex rel. California 20 Regional Water Quality Control Board, Central Coast Region (hereinafter "Board") filed a 21 complaint in this Court naming Pacific Gas and Electric Company (hereinafter "Company") as 22 a defendant. The complaint asserts causes of action under the Porter-Cologne Water Quality 23 Act and the Clean Water Act arising from the historical discharge of heated cooling water by 24 the Company from locations not authorized by its National Pollutant Discharge Elimination 25 System Permit ("NPDES"). This Consent Judgment is being entered as a full and final 26 resolution of this matter.
27 I/I 28 EXHIBIT A CONSENT JUDGMENT 11/06102
1 2.
DEFINITIONS 2
As used in this Consent Judgment and for the purposes of this Consent Judgment only, 3 the following terms have the following meaning:
4 2.1 "Consent Judgment" shall mean this Consent Judgment and all exhibits attached 5 hereto. In the event of conflict between this Consent Judgment and any exhibit, this Consent 6 Judgment shall control.
7 2.2 "Bankruptcy Court" shall mean the United States Bankruptcy Court for the Northern 8 District of California (San Francisco Division) having jurisdiction over the pending bankruptcy 9 case of the Company, styled as In re Pacific Gas and Electric Company. Case No.
10 01-30923DM.
11 2.3 "Board" shall mean the California Regional Water Quality Control Board, Central 12 Coast Region:
13 2.4 "Company" shall mean Pacific Gas and Electric Company, its affiliates and any 14 successors or assigns of Pacific Gas and Electric Company or its affiliates.
15 2.5 "Effective Date" shall mean the date on which the Consent Judgment is entered by 16 the Superior Court of Monterey County, subject to the condition precedent in Paragraph 6.
17 2.6 "Parties" shall mean the People of the State of California ex rel. the Board and the 18 Company.
19 2.7 "Permit" shall mean the National Pollutant Discharge Elimination System 20 ("NPDES") Permit and Waste Discharge Requirements issued by the Board.
21 2.8 "Plant" shall mean the Moss Landing Power Plant owned. by the Company until 1998 22 and currently owned and operated by Duke Energy Moss Landing LLC.
23
. 2.9 "NPDES Permits" shall mean NPDES Permits No. CA0006254 and Waste 24 Discharge Requirements Order Nos. 71-41, 76-09, 85-08, 90-08, and 95-22 issued to the 25 Company.
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- 3.
RECITALS 27 3.1 The Company owned and operated the Plant from 1971 through 1998. The Plant is 28 currently owned by Duke Energy Moss Landing Company LLC. The Moss Landing Power
-2 CONSENT JUDGMENT 11/06/02
1 Plant generates electricity using natural gas for power generation and seawater for cooling 2 purposes. At the time the Company owned and operated it, the plant had four discharge 3 points: Discharge No. 001 to the southern shore of Elkhorn Slough (Units 1 through 5, closed 4 in 1995), Discharge No. 002 to Monterey Bay (Units 6 and 7), Discharge No. 003 to Moro 5 Cojo Slough (storm water only), and Discharge No. 004 to Moss Landing Harbor (storm 6 water only.)
7 3.2 The Board issued and reissued amended NPDES Permits to the Company in 1971, 8
1976, 1985, 1990 and 1995.
9 3.3 It is the Board's position that: During the years the plant was operated by the 10 Company, the NPDES Permits permitted discharge of heated cooling water from Units 6 and 7 11 only to the discharge point No. 002 in Monterey Bay. No discharge of heated cooling water 12 to Moss Landing Harbor was authorized by the NPDES Permits and discharges not 13 specifically authorized were prohibited. Additionally, discharge of heated cooling water to 14 Moss Landing Harbor violated Clean Water Act 'Section 301 (33 U.S.C. Section 1311). Any 15 violation of te NPDES Permits or Clean Water Act Section 301 constitutes a violation of 16 Water Code Section 13385 subjecting Company to civil liability. The Attorney General, upon 17 request of a regional board, shall petition the superior court to impose liability for violations 18 of the NPDES Permits.
19 3.4 The Company discovered and reported to the Regional Board that the discharge by 20 the Company of billions of gallons of heated cooling water from the intake structure for Units 21 6 and 7 into Moss Landing Harbor had occurred beginning in 1974 and ending in 1998 when it 22 sold the Plant. The Company takes the position that while it engaged in this practice, also 23 known as "backflushing", it did so without knowledge that the actions violated any permit 24 conditions.
25 3.5 The Regional Board takes the position that the prohibited discharges constitute 6 26 violations of Water Code Section 13385. At the request of the Regional Board, the Attorney 27 General's Office is concurrently filing a Complaint to impose civil liability upon the Company 28 and this Consent Judgment.
-3 CONSENT JUDGMENT 11/06/02
1 3.6 Pursuant to this Consent Judgment, the Company has agreed to fund various 2 supplemental environmental projects and activities in the total amount of Five million dollars 3
($5 million) that will include benefits to the Elkhorn Slough and Moss Landing Harbor and 4 watersheds tributary to the Slough and Harbor. The descriptions of the funding projects are 5 set forth in Paragraph 8 below and include the Non-point Source Projects Fund, the 6 Non-Point Source Monitoring Fund and CCAMP Fund, and Administrative costs.
7 4.
JURISDICTION AND VENUE 8
For purposes of this Consent Judgment only, the Parties stipulate that this Court has 9 jurisdiction over the allegations in the Complaint and personal jurisdiction over the Parties as 10 to the acts alleged in the Complaint, that venue is proper, and that this Court has jurisdiction 11 to resolve all allegations raised in, arising from or related to the Complaint.
12 5.
PARTIES BOUND 13 This Consent Judgment applies to and is binding upon the California Regional Water 14 Quality Control Board, Central Coast Region and the Company. Any change in ownership or 15 corporate status of the Company including, but not limited to, any transfer of assets or real or 16 personal property, shall in no way alter the Company's responsibilities under this Consent 17 Judgment.
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COURT APPROVAL 19 6.1 Bankruptcy Court Approval The Company will file (or already has filed) with 20 the Bankruptcy Court.an application or motion (the "Motion") for authority for the Company 21 to enter into and be bound by this Consent Judgment and all the terms therefor, including the 22 funding of supplemental environmental projects and funding of administrative costs pursuant to 23 paragraph 8. The Consent Judgment shall have no force or effect, and may not be used for 24 any purpose in any action, unless and until an order granting the Motion is final.
25 6.2 Superior Court Approval The Parties will file a stipulated motion for entry of 26 judgment requesting that the Court enter this Consent Judgment. The Consent Judgment shall 27 have no force or effect, and may not be used for any purpose in any action, unless and until 28 entered as a final judgment by the Court.
-4 CONSENT JUDGMENT 11/06/02
1 7.
CLAIMS COVERED 2
This Consent Judgment is a full, final and binding agreement between the Board and 3 the Company, including for the purpose of this Paragraph the Company's officers, directors, 4
agents, consultants, servants, employees, successors and assigns, of any violation of the 5 Porter-Cologne Water Quality Control Act, the Clean Water Act and any other statutory or 6 common law claims that have been or could have been asserted in the Complaint by the Board 7 arising from the Company's historical discharge of heated cooling water from the Plant at 8 locations other than those permitted in the NPDES Permits, a practice commonly known as 9 "backflushing."
10 8.
THE COMPANY'S OBLIGATIONS 11 8.1 The Company has offered and the Board has agreed to accept Company 12 funding the following Supplemental Environmental Projects:
13 8.2 Community Foundation for Monterey County 14 The Company shall pay into a fund, established and administered as provided below, 15 within thirty (30) Days of the Effective Date of the Consent Judgment by transferring and 16 delivering a check made payable to the Community Foundation for Monterey County 17 ("Community Foundation").
18
- a.
Non Point Source Projects Fund 19 The fund shall be established with the Community Foundation in the 20 amount of two milliou eight hundred fifty thousand dollars ($ 2,850,000) in accordance with a 21 Memorandum of Agreement to be approved by the Regional Board Executive Officer and in 22 accordance with the Community Foundation Policy for Donor-Advised Funds. The fund will 23 be called the Non-Point Source Projects Fund ("Projects Fund".) The Projects Fund is not 24 intended to be a permanent fund and so principle as well as earnings on investments may be 25 used for the purposes specified below in order to maximize benefit to the Elkhorn Slough and 26 Moss Landing Harbor. Sources other than the Company may donate money or other property 27 to the Projects Fund. The Community Foundation shall invest the Projects Fund in 28 conservative investments -f,-r
.,nsultati,""
with.
E,*- utiv, Off*.,r based upon minimal CONSENT JUDGMENT 11/06102
1 risk of loss of capital, The Community Foundation will provide a regular accounting of the 2 Projects Fund and its investments to the Regional Board Executive Officer on a semi-annual 3 basis, or if requested by the Regional Board, on a more frequent basis. The Community 4 Foundation will periodically consult with the Regional Board Executive Officer regarding its 5 investment strategy on a semi-annual basis. The Executive Officer will report annually to the 6 Regional Board on the status of the Projects Fund and funded project implementation and 7 support.
8
- b.
General Project and Support Funding-Criteria 9
(1)
The Projects Fund shall be used to fund projects to reduce 10 sediment, nutrients, pesticides and other pollutants that enter the Elkhorn Slough and Moss 11 Landing Harbor or watersheds tributary to the Slough or Harbor. The projects must be 12 consistent with the Regional Board's Toxic Hot Spots Cleanup Plan or the Monterey Bay 13 National Marine Sanctuary's Plan for Agriculture ("Sanctuary Agriculture Plan".) Projects 14 shall focus on Elkhorn Slough or Moss Landing Harbor and watersheds tributary to the Slough 15 and Harbor, including the Salinas River, Moro Cojo Slough, and Tembladero Slough. The 16 Projects Fund may also fund support for establishing new watershed working groups according 17 to the Sanctuary Agriculture Plan or providing support for existing groups to facilitate 18 completion of water quality management plans and implementation of projects according to the 19 Sanctuary Agriculture Plan. Support may also include screening of applications for funding 20 from the Projects Fund and assistance with and review of implementation of projects that have 21 received funding.
22 4(2) Project Implementation Funding Criteria 23 The Regional Board, at a public meeting, after opportunity for public comment, shall establish 24 specific criteria for selecting projects for project implementation funding. In establishing the 25 specific criteria for project implementation funding, the Regional Board shall be guided by the 26 following:
27 (a)
The proposal must be in Elkhorn Slough or Moss Landing 28 Harbor or watersheds tributary to the Slough or Harbor;
-6 CONSENT JUDGMENT 11/06/02 I
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT JUDGMENT 11/06/02 (b)
Applicants will be ranked higher if they have completed a water quality management plan for their lands, either through a University of California (UC) short course or in conjunction with Natural Resource Conservation Service (NRCS) or the Monterey County Resource Conservation District (RCD) staff; (c)
The Proposal will be ranked higher if it implements management projects identified in the water quality management plan and recommendations made by the Regional Board, UC, NRCS and RCD; (d)
Proposals shall contain a cost-share match; (e)
Proposals must be implemented within a date specified in the funding commitment; (f)
Applicants must participate in the Regional Board's monitoring program for pollution reduction effectiveness as described in the Non-Point Source Monitoring Fund below.
(g)
Proposals will be ranked higher if the Applicant is a member of an industry-led Watershed Working Group as defined in the Sanctuary Agricultural Plan.
(h)
Funding will be disbursed in at least three installments to assure project completion (initial, midway and after completion);
(i)
Applicants must allow Regional Board staff access to the project area for monitoring and inspection; (3)
Support Funding Criteria The Regional Board at a public meeting after opportunity for public comment, shall establish specific criteria for funding the support activities listed in paragraph 8.2 b. (1), above.
(4)
Review and Approval of Grant Proposals The Community Foundation shall fund projects after approval by the Regional Board Executive Officer based on the Board established criteria. The Executive Officer may consult a technical advisory committee. Approved projects must comply with the V.
1 criteria established by the Regional Board in accordance with this paragraph and with the 2 public benefit purposes of the Community Foundation as set forth in its organizational and 3 governing documents.
4 8.3 The Non-Point Source Monitoring and CCAMP Funds 5
The Company shall pay into two funds established with the National Fish and 6 Wildlife Foundation, the Community Foundation or another Foundation approved by the 7 Regional Board Executive Officer (Approved Foundation), within thirty (30) Days of the 8 Effective Date of the Consent Judgment by transferring and delivering two checks made 9 payable to the Approved Foundation in the amounts set forth in paragraphs 8.3 (a) and 8.3 (b) 10 below. The funds shall be entitled, The Non-Point Source Monitoring Fund (the Monitoring 11 Fund) and The CCAMP Fund (collectively "the Funds") in accordance with an Memorandum 12 of Agreement approved by the Regional Board Executive Officer. The Funds shall be 13 administered as provided below. These Funds are intended to be long-term and will be 14 invested in conservative investments based on minimal risk of loss of capital so that earnings 15 from the investments are used to fund the activities described below. If earnings on the Funds 16 are not sufficient to cover administrative costs and monitoring activities, principle from the 17 applicable Fund may be used to pay for administrative costs and monitoring activities, but an 18 effort will be made to extend the life of the Funds as long as feasible, without impeding 19 monitoring goals. The Approved Foundation will provide a regular accounting of the Funds 20 and its investments to the Regional Board Executive Officer on a semi-annual basis, or if 21 requested by the Regional Board, on a more frequent basis. The Approved Foundation will 22 periodically consult with the Regional Board Executive Officer regarding its investment 23 strategy on a semi-annual basis. Sources other than the Company may donate money or other 24 property to the Funds. The Executive Officer will report to the Regional Board annually on the 25 status of the Funds and funded monitoring. The Funds shall be established as follows:
26 (a)
The Non-Point Source Monitoring Fund. $950,000 for 27 comprehensive monitoring to evaluate implementation and effectiveness 6f activities funded 28 by the Project Funds as well as other non-point source pollution reduction activities in Elkhorn 1 CONSENT JUDGMENT 11/06/02
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- 1.
Within thirty (30) days of the Effective Date of the Judgment, the Company shall deposit $250,000 into the PCA No. 143-01 account at the State Water Resources Control Board. This account shall be used for Regional Board staff costs for oversight of the Supplementary Environmental Projects funded by the Company under this Consent Judgment.
The funds will be expended at approximately $50,000 per year.
- 2.
Administrative costs and fees charged by the Community Foundation and Approved Foundation for the Project Fund, the Monitoring Fund and The CCAMP Fund shall be paid from earnings on investment of these Funds. If earnings are not sufficient, payment
-9 CONSENT JUDGMENT 11/06/02 Slough and Moss Landing Harbor and watersheds tributary to the Slough and Harbor. The Regional Board will approve monitoring funding criteria at a public meeting, after opportunity for public comments.. Monitoring projects shall be funded after approval by the Regional Board Executive Officer based on the criteria and with the public benefit purposes of the Approved Foundation as set forth in its organizational and governing documents. The Executive Officer may consult a technical advisory committee before approval.
(b)
The Central Coast Ambient Monitoring Program (CCAMP) Fund. $950,000 for CCAMP monitoring activities. CCAMP is the Central Coast Ambient Monitoring Program (CCAMP). CCAMP was established to monitor water quality in the Central Coast Region. Funding will be used to support the monitoring components of CCAMP in the Monterey Bay area and associated watersheds. High priority shall be given to ensure that coastal confluences monitoring be continued, including routine sampling of creeks in the Monterey Bay area, conventional water quality sampling, benthic invertebrate assessment and sediment chemistry sampling. Pathogen sampling through the CCAMP mussel sampling program in the Monterey Bay Area is also an appropriate but less high priority use of the funds. Monitoring projects shall be funded after approval by the Regional Board Executive Officer based on the CCAMP monitoring program and with the public benefit purposes of the Approved Foundation as set forth in its organizational and governing documents.
8.4 Administration.
1 may be taken from the Fund principle. The amounts for administrative costs and fees shall 2 not exceed those amounts specified in the agreements approved by the Executive Officer and 3 shall not exceed the amounts normally charged by the Community Foundation or NFWF, as 4 applicable, for similar administrative services provided for similar funds they administer.
5 8.5 General Obligations 6
Except as provided in this paragraph, 8.5, The Company's sole obligations with 7 respect to each and all of the matters recited in Section 8 above are to deliver payments 8 totaling $5,000,000 as set forth above. The Company (and its agents and representatives) have 9 no further obligations related to management, administration, formation, or further funding of 10 any Supplemental Enyironmental Projects, except to the extent that different Supplemental 11 Environmental Projects are substituted through an amended agreement. The Company will 12 sign Agreements with the Community Foundation and Approved Foundation, if necessary, to 13 establish the Projects Fund, the Monitoring Fund or the CCAMP Fund as long as the 14 agreements call for the Company to do no more than deposit money into the Funds. The 15 Company designates the Regional Board as the donor advisor to the Projects Fund, the 16 Monitoring Fund and the CCAMP Fund and the Company will not influence the expenditure 17 of these funds in any way.
18 9.
RELEASES 19 9.1 Company's Release of Regional Board 20 Upon the effective date of this Consent Judgment, and except as provided in Paragraph 21 11, Company shall and does release, discharge and covenant not to sue the Board for any and 22 all claims or causes of action, of every kind and nature whatsoever, in law and in equity, 23 whether known or unknown, suspected or unsuspected, foreseen or unforeseen, which arise 24 out of or are related to this action.
25 9.2 Board's Release of Company 26 Except as provided in Paragraph 11, the Board shall and does release, discharge 27 and covenant not to sue or to take administrative action against Company or Company's 28 officers, directors, agents, consultants, servants, employees, successors and assigns, for
-10 CONSENT JUDGMENT 11/06/02
1 Claims covered under Section 7, above. This covenant not to sue shall become effective only 2 upon payment to be made by the Company pursuant to this Consent Judgment. This covenant 3 not to sue shall not act to release from liability any person or entity other than Company.
4 10.
PARTIES TO BEAR THEIR OWN COSTS AND ATTORNEYS FEES 5
Each party to this Consent Judgment shall bear its own respective costs and attorneys' 6 fees in connection with this matter, including costs and fees associated with negotiating and 7 seeking court approval of this Consent Judgment, and with actions brought to enforce the 8 terms of this Consent Judgment or to declare rights hereunder.
9
- 11.
RESERVATION OF RIGHTS 10 Regional Board and Company reserve their respective rights to initiate judicial or 11 administrative action against each other for any matter not released by this Consent Judgment.
12 Nothing in this Consent Judgment shall constitute or be construed as a satisfaction or release 13 from liability for any conditions or claims arising as a result of past, current, or future 14 operations or activities of Company that are not matters covered by this Consent Judgment.
15 Nothing herein is intended or shall be construed as a waiver of Regional Board's right to 16 institute an action to compel compliance with this Consent Judgment. In addition, nothing in 17 this Consent Judgment is intended or shall be construed to preclude Regional Board from 18 exercising its authority under any statute, regulation, 19
- 12.
NO THIRD PARTY BENEFITS 20 This Consent Judgment is made for the sole benefit of the parties, and no other person 21 or entity shall have any rights or remedies under or by reason of this Consent Judgment, 22 unless otherwise expressly provided for herein.
23
- 13.
NO OPPOSITION BY PARTIES. Each Party hereby agrees not to oppose the Court's 24 determination that this Consent Judgment was entered into as a good faith settlement of all 25 claims by the Parties, and not to challenge any provision of this Consent Judgment.
26
- 14.
NO CIVIL PENALTIES. No monies paid by the Company pursuant to the terms of 27 this Consent Judgment shall be construed as, or be asserted by the Regional Board, to be a 28 civil fine, penalty or monies paid in lieu thereof.
-l1 CONSENT JUDGMENT 11/06/02
1 15.
NO ADMISSION OF LIABILITY. Nothing in this Consent Judgment shall be 2 construed as, or asserted by, the Regional Board to be an admission by the Company of 3 liability under any applicable provision of federal, state or local law, regulation, ordinance, 4 plan, guideline, guidance document, or policy.
5
- 16.
NOTICES. Whenever, under the terms of this Consent Judgment, written notice is 6 required to be given or a report or other document is required to be sent by one Party to 7 another, it shall be directed to the individuals at the addresses specified below, unless those 8 individuals or their successors give notice of a change to the other Parties in writing. All 9 notices and submissions shall be considered effective upon receipt, unless otherwise provided.
10 Written notice as specified herein shall constitute complete satisfaction of any written notice 11 requirement of the Consent Judgment with respect to the Parties.
12 As to the Plaintiff:
13 Marilyn H. Levin Deputy Attorney General 14 State of California Department of Justice 300 S. Spring St.
15 Los Angeles, CA 90013 16 Jennifer Soloway State Water Resources Control Board 17 Office of Chief Counsel P.O. Box 100 18 Sacramento, CA 95812, and 19 Roger W. Briggs Executive Officer 20 Regional Water Quality Control Board, Central Coast Region 895 Aerovista Place, Suite 101 21 San Luis Obispo, CA 93401-5427 22 As to the Company:
23 John W. Busterud Section Head, Environmental Section 24 Law Department Pacific Gas andElectric Company 25 77 Beale Street - B30A P.O. Box 7442 26 San Francisco, CA 94120.
27
- 17.
AMENDMENTS AND MODIFICATIONS. This Consent Judgment may not be 28 amended or modified except in a writing, consented to and signed by duly authorized
-12 CONSENT JUDGMENT 11/06/02
1 representatives of the Parties hereto, that states the intent of the Parties to amend or modify 2 this Consent Judgment.
3 18.
DISPUTE RESOLUTION. In the event that a dispute arises between or among any of 4 the Parties with respect to the subject matter of this Consent Judgment, the Parties shall 5 attempt in good faith to resolve any such dispute informally, for a period of time not to exceed 6 thirty (30) days, unless such time period is extended by written consent of the Parties. If the 7 Parties are unable to resolve their dispute, the Parties agree to mediate their dispute with a 8 third party mediator who is mutually acceptable to the Parties, for a period of time not to 9 exceed sixty (60) days, unless such time period is extended by written consent of the Parties.
10 If the dispute is not resolved through informal negotiation or mediation, then each Party may 11 pursue any other remedy available to it.
12 19, AUTHORITY. Each person signing this Consent Judgment in a representative 13 capacity hereby expressly warrants that he or she has express authority to legally bind his or 14 her principal and signs this Consent Judgment in such representative capacity on behalf of his 15 or her principal.
16
- 20.
EXECUTION. This Consent Judgment may be executed in counterparts, with each 17 copy deemed an original, and all su'h counterparts taken together shall constitute one and the 18 same Consent Judgment.
19 21.
JURISDICTION, INTERPRETATION 20 This Court shoal retain jurisdiction to interpret, modify and enforce the terms and 21 conditions of this Consent Judgment. This Consent Judgment shall be deemed to have been 22 drafted equally by the-parties, and shall not be interpreted for or against either party on the 23 ground that any such party drafted it. This Consent Judgment shall be governed by and 24 construed in accordance with the laws of the State of California.
25 22.
INTEGRATION 26 This Consent Judgment contains all of the terms and conditions agreed upon by the 27 parties relating to the matters covered by this Consent Judgment, and supersedes any and all 28 prior and contemporaneous agreements, negotiations, correspondence, understandings, and
-13 CONSENT JUDGMENT 11/06/02
1 2
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated:
JUDGE OF THE SUPERIOR COURT
-14 CONSENT JUDGMENT 11/06/02 communications of the parties, whether oral or written, respecting the matters covered by this Stipulated Judgment.
- 23.
KNOWING, VOLUNTARY AGREEMENT Each party to this Consent Judgment acknowledges that it has been represented by legal counsel, and that each party has reviewed, and has had the benefit of legal counsel's advice concerning, all of the terms and conditions of this Consent Judgment.
Dated:
,2002 Dated:
,2002 IT IS SO ORDERED, ADJUDGED, AND DECREED:
J