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United States v. Exxonmobil Pipeline Co.

United States District Court, D. Montana, Billings Division

December 12, 2016

UNITED STATES OF AMERICA,
v.
EXXONMOBIL PIPELINE COMPANY, Defendant. and STATE OF MONTANA, Plaintiffs, v.

          CONSENT DECREE

         TABLE OF CONTENTS

         I. JURISDICTION......................................................................................................................5

         II. PARTIES BOUND..................................................................................................................6

         III. DEFINITIONS.....................................................................................................................6

         IV. GENERAL PROVISIONS................................................................................................10

         V. NATURAL RESOURCE DAMAGE PAYMENT BY DEFENDANT................................10

         VI. TRUSTEES' MANAGEMENT AND APPLICATION OF THE SETTLEMENT..........12

         VII. STIPULATED PENALTIES.............................................................................................14

         VIII. COVENANT NOT TO SUE BY PLAINTIFFS................................................................17

         IX. RESERVATION OF RIGHTS BY THE PLAINTIFFS....................................................17

         X. COVENANT NOT TO SUE AND WAIVER OF CLAIMS BY THE DEFENDANT........18

         XI. EFFECT OF SETTLEMENT............................................................................................19

         XII. NOTICES...........................................................................................................................19

         XIII. RETENTION OF JURISDICTION...................................................................................21

         XIV. MODIFICATION..............................................................................................................21

         XV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT.....................................22

         XVI. SIGNATORIES AND SERVICE......................................................................................22

         XVII. FINAL JUDGMENT.........................................................................................................23

         A. WHEREAS, Plaintiffs, United States of America ("United States") and the State of Montana ("State") have filed a joint complaint in this action, asserting claims under Section 1002 of the Oil Pollution Act, as amended ("OPA"), 33 U.S.C. § 2702, and also as to the State under Section 75-10-715 of the Montana Comprehensive Environmental Cleanup and Responsibility Act (CECRA), against Defendant ExxonMobil Pipeline Company. The complaint alleges that (i) on or about July 1, 2011, Defendant discharged more than 1, 500 barrels of crude oil from its Silvertip Pipeline into and upon the Yellowstone River and its adjoining shorelines (the "Discharge") near Laurel, Montana, (ii) the Discharge resulted in injuries to, destruction of, loss of, or loss of use of natural resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States and the State, (iii) the United States Department of the Interior ("DOI"), through the United States Fish and Wildlife Service ("USFWS") and the Bureau of Land Management ("BLM"), (collectively referred to herein as the "Federal Trustee") and the State, through the Montana Department of Justice Natural Resource Damage Program acting on behalf of the Governor ("State Trustee"), have incurred unreimbursed Natural Resource Damage Assessment Costs as a result of the Discharge, and (iv) Defendant is liable without limitation for natural resource damages for such injuries, destruction and losses, including Natural Resource Damage Assessment Costs, under OPA and CECRA.

         B. WHEREAS, the Defendant undertook cleanup actions pursuant to a July 6, 2011 Administrative Order issued by the United States Environmental Protection Agency, and under a February 28, 2012 Administrative Order on Consent between the Montana Department of Environmental Quality and the Defendant. Pursuant to the orders and under EPA and/or MDEQ oversight, the Defendant surveyed oiled areas, conducted required cleanup activities, and conducted extensive environmental confirmation sampling of soils, sediments, groundwater, surface water, and public water supply.

         C. WHEREAS, the Federal Trustee and State Trustee (collectively referred to herein as the "Trustees") are both trustees of Natural Resources that the Trustees contend are or were injured as a result of the Discharge, and previously entered into a memorandum of understanding providing a framework for coordinating assessment and restoration efforts. The Trustees performed surveys and collected significant ephemeral data related to riverine aquatic habitat, supported biota - including fish, terrestrial habitat and supported biota, birds, large woody debris piles, and services provided by the natural resources - and post-cleanup environmental conditions downstream of the Discharge, These surveys and data, which have been ongoing since the Discharge in 2011, indicate that the possibility of unknown conditions significantly impacting Natural Resources in the future is remote. Timely implementation of the restoration activities that this settlement makes possible will further benefit Natural Resources impacted by the Discharge.

         D. WHEREAS, Defendant has previously reimbursed approximately 51, 602, 638.59 of Natural Resource Damage Assessment Costs incurred by the Trustees.

         E. WHEREAS, the Trustees have issued for public comment a Draft Restoration Plan for the Yellowstone River July 2011 Oil Spill, as provided for under Title 15 C.F.R. § 990.55, and have invited public comment on the draft plan.

         F. WHEREAS, by entering into this Consent Decree, Defendant does not admit the allegations in the complaint filed in this action.

         G. WHEREAS, the Parties agree that settlement of this matter without further litigation is in the public interest and that the entry of this Consent Decree is the most appropriate means of resolving this action.

         H. WHEREAS, the Parties agree, and by entering this Consent Decree the Court finds, that this Consent Decree: (1) has been negotiated by the Parties at arm's length, in good faith, (2) will avoid prolonged litigation among the Parties; and (3) is fair, reasonable, and furthers the objectives of OPA.

         I. The Defendant does not admit any liability arising out of the transactions or occurrences alleged in this action.

         NOW, THEREFORE, without adjudication of any issue of fact or law, except as provided in Section I (Jurisdiction) below, and with the consent of the Parties, IT IS ADJUDGED, ORDERED AND DECREED as follows:

         I. JURISDICTION

         1. This Court has jurisdiction over the subject matter of this action pursuant to Section 1017(b) of OPA, 33 U.S.C. § 2717(b), and 28 U.S.C. §§ 1331 and 1345, and over the Parties to this action for the purpose of entry and enforcement of this Consent Decree. This Court has pendent jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). Venue lies in the District of Montana pursuant to 33 U.S.C. § 2717(b) and 28 U.S.C. § 1391. Solely for the purposes of this Consent Decree or any action to enforce the Consent Decree, the Defendant waives all objections and defenses that it may have to jurisdiction of the Court or to venue in this District. Defendant shall not challenge this Court's jurisdiction to enter and enforce this Consent Decree.

         II. PARTIES BOUND

         2. The obligations of this Consent Decree apply to and are binding upon the Parties and each of their successors, assigns, or other entities or persons otherwise bound by law to comply with this Consent Decree. Any change in ownership or corporate status of the Defendant including, but not limited to, any transfer of assets or real or personal property, shall in no way alter the Defendant's or its successors' and assigns' rights or responsibilities under this Consent Decree. Defendant shall not contest the right of any of the Plaintiffs to enforce the provisions of this Consent Decree, III. DEFINITIONS

         3. Unless otherwise expressly provided herein, terms used in this Consent Decree which are defined in OPA or in the regulations promulgated by NOAA under OPA, 15 C.F.R. Part 990, shall have the meaning assigned to them in OPA or in such regulations, as applicable. Whenever the following terms are used in this Consent Decree and incorporated hereunder, the definition specified hereinafter shall apply.

a. "BLM" shall mean the Bureau of Land Management, an agency of the United States Department of the Interior.
b. "CECRA" shall mean the Montana Comprehensive Environmental Cleanup and Responsibility Act, 75-10-701 et seq., Montana Code Annotated.
c. "Consent Decree" shall mean this Consent Decree.
d. "Day" shall mean a calendar day unless expressly stated to be a working day. "Working day" shall mean a day other than a Saturday, Sunday, or Federal holiday. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or Federal holiday, the period shall run until the close of business of the next Working Day.
e. "Defendant" shall mean ExxonMobil Pipeline Company.
f. "Discharge" shall mean the discharge of oil to the environment from Defendant's Silvertip oil transmission pipeline on or about July 1, 2011.
g. "DOI" shall mean the United States Department of the Interior.
h. "Federal Interest, " as that term is used in Section VII (Stipulated Penalties) of this Consent Decree, shall mean interest earned at the rate and by the method specified in 28 U.S.C. § 1961(a) and (b).
i. "Federal Trustee" shall mean the Secretary of the United States Department of the Interior, represented by USFWS and the BLM, as the federal official designated to act on behalf of the public as trustee for natural resources under OPA Section 1006(b)(2), 33 U.S.C. § 2706(b)(2).
j. "MDEQ Administrative Order on Consent" shall mean the Administrative Order on Consent between Defendant and the Montana Department of Environmental Quality entitled, "In the Matter of Violations of the Montana Water Quality Act by ExxonMobil Pipeline Company, at Silvertip Pipeline, Laurel, Yellowstone County, Montana (FID #2103) Administrative Order on Consent, " Docket No. WQA-12-08, dated February 28, 2012.
k. "Montana Natural Resource Damage Program" shall mean an entity within the Montana Department of Justice.
l. "Natural Resources" shall mean land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States or the State.
m. "Natural Resource Damages" shall mean any damages recoverable by the United States or the State, as Trustees or parens patriae on behalf of the public, under Section 1002(b)(2)(A) of OPA, or any other Federal law, State law under any theory without limitation, or common law, as compensation for injury to, destruction of, loss of, or loss of use of Natural Resources and natural resource services they provide, resulting from a release or threat of release of oil linked to the Discharge (including any injury, destruction or losses to Natural Resources from removal actions to address the Discharge), Natural Resource Damages include, without limitation: (i) the costs of restoration, rehabilitation, or replacement of injured or lost Natural Resources and natural resources services, or of acquisition of equivalent resources; (ii) Natural Resource Damage Assessment Costs; (iii) the costs of planning and monitoring such restoration activities; and (iv) any other compensation for diminution in value or loss of use or non-use values; resulting from the Discharge.
n. "Natural Resource Damage Assessment Costs" shall mean, for purposes of this Consent Decree, all costs within the meaning of Sections 1002(b)(2)(A) and 1006(d)(1)(C) of OPA, 33 U.S.C. §§ 2702(b)(2)(A), 2706 (d)(1)(C), and Section 75-10-715(2)(b) of CECRA incurred by the Trustees resulting from the Discharge, including, but not limited to, direct, indirect, and administrative costs in assessing any injury to, destruction of, loss of, or loss of use of Natural Resources resulting from the Discharge, related restoration planning activities, and all costs directly or indirectly related to negotiating this Consent Decree.
o. "NRDAR Fund" shall mean DOI's Natural Resource Damage Assessment and Restoration Fund.
p. "Oil Spill Liability Trust Fund" shall mean the Oil Spill Liability Trust Fund established pursuant to 26 U.S.C. §§ 4611 and 9509.
q. "OPA" shall mean the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484, 33 U.S.C. §§ 2701-2762.
r. "Paragraph" shall mean a portion of this Consent Decree identified by an arabic numeral or an upper ...

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