People v. APM Terminals

64 Pages·2011·1.41 MB·English

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KAMALA D. HARRIS, Attorney General
1
J. MATTHEW RODRIQUEZ, Chief Assistant Attorney General
2 SALLY MAGNANI, Senior Assistant Attorney Genera~! .................. .
SUSAN DURBIN, State BarNo. 81750
3 DENNIS A. RAGEN, State Bar No. 106468
'O
Deputy Attorneys General
4 REC
110 West A Street, Suite 1100 \ I
San Diego, Califomia 92186-5266 , 9 ')IJ\\
5 2
E-mail: [email protected]\J\-1 -' ·
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6 Telephone: [phone] ~<It!
Fax: [phone] f\\.\r<~\Ol
7
8
SUPERIOR COURT OF CALIFORNIA
9 FOR THE COUNTY OF LOS ANGELES
BG46449'1
10
PEOPLE OF THE STATE OF Case No.
CALIFORNIA, ex rei. KAMALA D.
11
HARRIS, Attorney General of the State of CONSENT JUDGMENT AS TO
California DEFENDANTS:
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APM TERMINALS PACIFIC, LTD.,
Plaintiff, EAGLE MARINE SERVICES, LTD.,
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INTERNATIONAL TRANSPORTATION
v. SERVICE, INC.,
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SSA TERMINAL (LONG BEACH), LLC,
APM TERMINALS PACIFIC, LTD.; SSA TERMINALS, LLC.,
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EAGLE MARINE SERVICES, LTD.; PACIFIC MARITIME SERVICES,
L.L.C.,
16 INTERNATIONAL TRANSPORTATION
TRAPAC, INC.,
SERVICE, INC.; SSA TERMINAL (LONG
WEST BASIN CONTAINER TERMINAL
17 BEACH) LLC; SSA TERMINALS, LLC;
LLC, and
PACIFIC MARITIME SERVICES, L.L.C.; YUSEN TERMINALS, INC.
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TRAPAC, INC.; WEST BASIN
CONTAINER TERMINAL LLC; AND
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YUSEN TERMINALS, INC.
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Defendants
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25 1. INTRODUCTION
26 I. I Concurrently with the lodging of this Consent Judgment, the People of the State of
27 California ("People"), by and through the Attomey General ("Attomey General") tiled a
28 complaint for civil penalties and injunctive relief for violations of Proposition 65 and unlawful
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Consent Judgment
1 business practices in the Superior Court for the County of Los Angeles. The People's
2 Complaint alleges that the Defendants exposed persons at or near the Ports of Long Beach and
3 Los Angeles to Diesel Engine Exhaust (as defined herein), a chemical listed under the Safe
4 Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.6,
5 also known as "Proposition 65," as known to the State of California to cause cancer. (Cal. Code
6 of Regs., tit. 27 § 25805.) The Complaint further alleges that under Proposition 65 entities must
7 provide persons with a "clear and reasonable warning" before exposing individuals to certain
8 levels of these chemicals, and that the Defendants failed to do so. The Complaint also alleges
9 that these acts constitute unlawful acts in violation of the Unfair Competition Law, Business and
10 Professions Code sections 17200 et seq. and 17500 et seq.
11 1.2 Settling Defendants. The following defendants enter into this Consent Judgment in
12 order to resolve the allegations asserted against them in the Complaint:
13 (I) APM Tenninals Pacific, Ltd., the lessee/operator of the APM Cargo
14 Tern1inal at the Port of Los Angeles, Pier 400.
15 (2) Eagle Marine Services, Ltd., the lessee and operator of the APL container
16 cargo terminal at the Port of Los Angeles, Berths 302-305.
17 (3) International Transportation Service, Inc., the lessee and operator of the ITS
18 Container Cargo terminal at the Port of Long Beach, Pier G.
19 (4) SSA Defendants:
20 (a) SSA Terminals (Long Beach), LLC, the lessee and operator of the
21 SSA Terminals Long Beach, Pier A;
22 (b) SSA Terminals, LLC, the lessee operator of SSA Terminals, LLC
23 Pier C-60; and
24 (c) Pacific Maritime Services, L.L.C., the lessee and operator of Pacific
25 Container Terminal.
26 (5) TraPac, Inc., the lessee and operator ofTraPac, Inc., at the Port of Los
27 Angeles, Berths 136-141.
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Consent Judgment
I (6) Yang Ming Marine Transport Corporation, lessee and holder of Permit 787
2 for Berths 121-131 and West Basin Container Terminal LLC, operator of
3 West Basin Container Terminal at the Port of Los Angeles, Berths 100-102,
4 121-131.
5 (7) Yusen Tem1inals, Inc., the lessee and operator of the Yusen Tenninals,
6 Inc., at the Port of Los Angeles, Berths 212-225.
7 I .3 The People have alleged that each Settling Defendant is responsible for exposing
8 persons at and near the Ports of Los Angeles and/or Long Beach to Diesel Engine Exhaust.
9 1.4 For purposes of this Consent Judgment only, the People and the Settling
I 0 Defendants stipulate that this Court has jurisdiction over the allegations of violations contained
II in the People's Complaint and personal jurisdiction over Settling Defendants as to the acts
I2 alleged in the People's Complaint, that venue is proper in Los Angeles County, and that this
I3 Court has jurisdiction to enter this Consent Judgment as a full and final resolution of all claims
14 that were or could have been raised in the Complaint based on the facts alleged therein. Settling
IS Defendants agree not to challenge or object to entry of this Judgment by the Court unless the
16 Attorney General has notified them in writing that Plaintiff no longer supports entry of this
I7 Judgment or that he seeks to modify this Judgment.
18 1.5 The People and Settling Defendants enter into this Consent Judgment as a full and
I9 final settlement of all claims relating to violations of Proposition 65 and the Unfair Competition
20 Law resulting from each Settling Defendant's failure to provide warnings regarding exposures
2I to Diesel Engine Exhaust resulting from the operation of its respective terminal(s) as specified
22 in Section 1.2, subparagraphs ( 1) through (7) above. By execution of this Consent Judgment
23 and agreeing to terms specified herein, Settling Defendants do not admit any violations of
24 Proposition 65 or the Unfair Competition Law or any other law or legal duty. Except as
25 expressly set forth herein, nothing in iliis Consent Judgment shall prejudice, waive or impair any
26 right, remedy, or defense the Plaintiff and Settling Defendants may have in any other
27 proceedings. However, this Paragraph shall not diminish or otherwise affect the obligations,
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Consent Judgment
1 responsibilities, and duties of the parties under this Consent Judgment, or the res judicata
2 impacts of this Consent Judgment.
3 2. DEFINITIONS
4 2.1 "Affiliated Company" shall mean a company or other corporate entity that is
5 affiliated with a Settling Defendant and identified in Exhibit D, including the predecessors,
6 successors or assigns of any such Affiliated Company.
7 2.2 "Diesel Engine Exhaust" shall mean diesel engine exhaust and the constituent
8 listed chemicals that fonn a part of that exhaust, including the constituent chemicals in such
9 exhaust separately listed now, or in the future, pursuant to Proposition 65.
10 2.3 The "Effective Date" of this Consent Judgment shall be the date on which the
11 Consent Judgment is entered as a judgment by the trial Court.
12 2.4 "Parent Company" shall mean a company or corporate entity that holds an
13 ownership interest in a Settling Defendant, and is identified in Exhibit C, including any
14 predecessor, successor, or assign of such Parent Company.
15 2.5 "Parties" shall mean the Plaintiff and the Settling Defendants.
16 2.6 "Proposition 65" shall mean the Safe Drinking Water and Toxic Enforcement Act
17 of 1986, Health and Safety Code section 25249.5 et seq., as amended, including the regulations
18 promulgated pursuant thereto.
19 2.7 "Settling Defendants" refers, individually and collectively, to the defendants
20 named in Section 1.2, subparagraphs (I) through (7), above.
21 2.8 The "Unfair Competition Law" or "UCL" shall mean Business and Professions
22 Code sections 17200 et seq. and 17500 et seq., as amended.
23 3. INJUNCTIVE RELIEF: WARNINGS
24 3.1 On October 13, 2008 certain Settling Defendants and other entities implemented a
25 waming program approved by the People to wam residents and other persons living or working
26 at or near the Ports of Los Angeles and Long Beach that they were being exposed to Diesel
27 Engine Exhaust, a chemical known to the State of California to cause cancer. The requirements
28 of this warning program are set forth in Exhibit A. Compliance with the Exhibit A waming
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I program by a Settling Defendant constitutes compliance with Proposition 65 for those matters
2 resolved by this Consent Judgment
3 3.2 Each Settling Defendant shall continue to provide warnings, in full compliance
4 with the requirements of Exhibit A, until:
5 (a) the Attorney General informs it in writing that the warnmgs for Diesel
6 Engine Exhaust emissions are no longer necessary, because the criteria for the cessation of
7 warnings set forth in Exhibit B have been fully satisfied; or
8 (b) this Court enters an order, on stipulation of the Pm1ies, or after the
9 conclusion of the dispute resolution proceedings outlined in Section 8 (Dispute
10 Resolution) of this Consent Judgment, that relieves it of the obligation to provide further
11 warnmgs; or
12 (c) the Settling Defendant ceases all cargo handling operations that emit
13 Diesel Engine Exhaust beyond its tenninal boundary line, or the terminal for which the
14 warning is required ceases all cargo handling operations that emit Diesel Engine Exhaust
15 that causes exposures beyond the terminal boundary line. The Settling Defendant shall
16 infonn the Attomey General in writing at least sixty ( 60) days prior to ceasing warnings
17 pursuant to this subparagraph (c).
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3.3 Settling Defendants' obligation to implement the warning program required by
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this Section 3 shall be joint and several. Nothing in this Consent Judgment shall bar a person
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who is not a Settling Defendant or Affiliated Company from participating in the Waming
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Program identified in Exhibit A.
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4. INJUNCTIVE RELIEF: SUPPLEMENTAL ENVIRONMENTAL PROJECTS
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4.1 Plaintiff has agreed to accept the settlement payments set forth in Section 5 below
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(Payments) based in part on Settling Defendants' commitment to implement Supplemental
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Environmental Projects, designed to reduce emissions of Diesel Engine Exhaust and other
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chemicals that have been listed under Proposition 65.
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4.2 Specifically, Settling Defendants shall do the following:
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Consent Judgment
1 (1) APM Tenninals Pacific, Ltd. shall complete its Supplemental
2 Environmental Project in compliance with the terms of Exhibit E.
3 (2) Eagle Marine Services, Ltd. shall complete its Supplemental Environmental
4 Project in compliance with the terms of Exhibit F.
5 (3) International Transportation Service, Inc. shall complete its Supplemental
6 Environmental Project in compliance with the terms of Exhibit G.
7 (4 ) SSA Terminals (Long Beach), LLC, SSA Terminals, LLC, and
8 Pacific Maritime Services, L.L.C. shall complete their Supplemental
9 Environmental Project in compliance with the tenns of Exhibit H.
10 (5) TraPac, Inc. shall complete its Supplemental Environmental Project in
11 compliance with the terms of Exhibit I.
12 (6) West Basin Container Tenninal LLC shall complete its Supplemental
l3 Environmental Project in compliance with the tenns of Exhibit J.
14 (7) Yusen Terminals, Inc., shall complete its Supplemental Environmental
15 Project in compliance with the terms of Exhibit K.
16 5. PAYMENTS
17 5.1 Civil Penalties. Settling Defendants shall pay civil penalties in the following
18 amounts pursuant to California Health & Safety Code§§ 25249.7(b) and 25249.12:
19 (1) APM TCiminals Pacific, Ltd., shall pay$ 83,333.00.
20 (2) Eagle Marine Services, Ltd. shall pay$ 83,333.00.
21 (3) International Transportation Service, Inc. shall pay$ 83,333.00.
22 (4) SSA Terminals (Long Beach), LLC, SSA Terminals, LLC, and Pacific
Maritime Services, L.L.C. shall pay $83,333.00.
23
24 (5) TraPac, Inc. shall pay$ 40,000.00.
25 (6) West Basin Container Tenninal, LLC shall pay $83,334.00.
26 (7) Yusen Terminals, Inc. shall pay$ 83,334.00.
27 These payments shall be made no later than 30 days after the Effective Date. Pursuant to Health
28 and Safety Code section 25249.12, Settling Defendants shall remit 75% of these funds directly
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Consent Judgment
1 to the California Office of Environmental Health Hazard Assessment ("OEHHA"), and shall
2 pay the remaining 25% to the Attorney General.
3 5.2 Cy Pres. Within sixty (60) days of entry of this Judgment, Settling Defendants
4 shall make the following cy pres payments:
5 (1) Clean Trucks Program/Los Angeles. The following Settling Defendants
6 shall make payments in the following amounts to the Clean Trucks Program operated by the
7 Port of Los Angeles:
8 (l) APM Tenninals Pacific, Ltd. shall pay$ 166,667.00.
9 (2) Eagle Marine Services, Ltd. shall pay$ 166,667.00.
10 (3} TraPac, Inc. shall pay$ 80,000.00.
11 (4 ) West Basin Container Terminal, LLC shall pay$ 166,666.00.
12 (5) Yusen Tenninals, Inc. shall pay $166,666.00.
13 (2) Programs at the Port of Long Beach. The following Settling Defendants
14 shall make payments in the following amounts to the Port of Long Beach:
15 (I) International Transportation Service, Inc. shall pay $ 166,667.00.
16 (2) SSA Terminals (Long Beach), LLC, SSA Terminals, LLC, and Pacific
17 Maritime Services, L.L.C. shall pay $166,667.00.
18 The Port of Long Beach shall use these funds as follows: $212,500 shall be allocated to a
19 demonstration project for zero emission heavy-duty vehicles in cargo handling and short haul
20 drayage operations, including one hydrogen fuel cell/plug-in electric class-8 on-road truck and
21 one hydrogen fuel cell/plug-in electric zero-emission terminal tractor; and $120,834 shall be
22 allocated to provide funding for the design and installation of a test diesel particulate filter
23 system for a switch locomotive. In the event that the Port of Long Beach finds it necessary to
24 change these allocations, or allocate funds to a different project, it will first obtain the approval
25 ofthe Attorney General, who will provide a summary of any changes to the Court and the
26 Settling Defendants.
27 5.3 Other Payments. Within 30 days after the Effective Date, Settling Defendants shall
28 also make the following payments:
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Consent Judgment
1 (I) Attorney General. Settling Defendants shall pay the following sums to the
2 Attorney General, to reimburse the fees and costs her office has expended with respect to this
3 matter.
4 (1) APM Tctminals Pacific, Ltd. shall pay $29,320.00.
5 (2) Eagle Marine Services, Ltd. shall pay $29,320.00.
6 (3) International Transportation Service, Inc. shall pay $29,320.00.
7 (4) SSA Tcnninals (Long Beach), LLC, SSA Terminals, LLC, and Pacific
8 Maritime Services, LLC. shall pay $29,320.00.
9 (5) TraPac, Inc. shall pay $14,080.00.
10 (6) West Basin Container Terminal, LLC shall pay $29,320.00.
11 (7) Yusen Tenninals, Inc. shall pay $29,320.00.
12 Funds paid pursuant to this paragraph shall be placed in an interest-bearing Special Deposit
13 Fund established by the Attorney General. These funds, including any interest, shall be used by
14 the Attorney General, until all funds arc exhausted, for the costs and expenses associated with
15 the enforcement and implementation of Proposition 65, including investigations, enforcement
16 actions, other litigation or activities as detennincd by the Attorney General to be reasonably
17 necessary to carry ant her duties and authority under Proposition 65. Such funding may be used
18 for the costs of the Attorney General's investigation, filing fees and other court costs, payment
19 to expert witnesses and technical consultants, purchase of equipment, travel, purchase of written
20 materials, laboratory testing, sample collection, or any other cost associated with the Attorney
21 General's duties or authority under Proposition 65. Funding placed in the Special Deposit Fund
22 pursuant to this Paragraph, and any interest derived therefrom, shall solely and exclusively
23 augment the budget of the Attorney General's Office and in no manner shall supplant or cause
24 any reduction of any portion of the Attorney General's budget.
25 (2) Rose, Klein and Marias. Pursuant to Health & Safety Code section
26 25249. 7U), Settling Defendants shall make the following payments to the law finn of Rose,
27 Klein and Marias on account of its representation of Alice Bradfield, David Bradfield, Hillary
28 Bradfield, Kristin Bradfield, and Meredith Bradfield (the "Bradfield Plaintiffs"):
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Consent Judgment
I (I) APM Terminals Pacific, Ltd. shall pay $35,495.00.
2 (2) Eagle Marine Services, Ltd. shall pay $35,495.00.
3 (3) International Transportation Service, Inc. shall pay $35,495.00.
4 (4) SSA Terminals (Long Beach), LLC, SSA Tenninals, LLC, and Pacific
5 Maritime Services, L.L.C. shall pay $35,495.00.
6 (5) TraPac, Inc. shall pay $17,030.00.
7 (6) West Basin Container Tenninal, LLC shall pay $35,495.00.
8 (7) Yusen Terminals, Inc. shall pay $35,495.00.
9 These payments represent full compensation for the fees, costs and other assistance that the
10 Bradfield Plaintiffs have incurred in providing assistance to Plaintiff in this matter with respect
11 to claims against the Settling Defendants. In order to obtain payment pursuant to this Paragraph
12 5.3(2), the law finn of Rose, Klein and Marias must, concurrently the filing of Plaintiffs motion
13 seeking entry of this Jud!,Ttncnt, file declarations and, if necessary, supporting evidence which
14 establish that it has incurred at least $230,000 in fees and costs in its investigation, negotiation
15 and litigation of the Brad fields' Proposition 65 claims against the Settling Defendants,
16 excluding the fees and costs for any negotiations, litigation or appeal regarding the adequacy of
17 the Bradfield Plaintiffs' sixty-day notices
18 5.4 Each payment required by this Consent Judgment shall be made through the
19 delivery of checks payable to the applicable person, as follows:
20 ( 1) Attorney General. Payments due to the Attorney General shall be made
21 payable to the "California Department of Justice," and sent to the attention of Robert Thomas,
22 Legal Analyst, Department of Justice, 1515 Clay Street, 20th Floor, Oakland, CA 94612.
23 (2) Office of Environmental Health Hazard Assessment. Payments due to the
24 OEHHA shall be made payable to the Office of Environmental Health Hazard Assessment and
25 sent to: Mike Gyurics, Fiscal Operations Manager, Office of Environmental Health Hazard
26 Assessment, P.O. Box 4010, Sacramento, CA 95812-0410.
27 (3) Rose, Klein and Marias. The payment due to Rose, Klein and Marias shall
28 be made payable to Rose, Klein & Marias LLP Client Tmst Account, and sent to: David A.
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Consent Judgment
1 Rosen, Rose, Klein & Marias LLP, 801 South Grand Avenue, lith floor, Los Angeles, CA
2 90017.
3 (4 ) Clean Trucks Program. Payments to the Clean Trucks Program shall be
4 made payable to "City of Los Angeles, Harbor Department." The payor may note in the
5 "Memo" field of the Check: "For: Clean Truck Program." Each check shall be accompanied
6 by a cover letter stating that the payment is made under this Consent Judgment and that it is for
7 use by the Clean Truck Program. Payments shall be sent to City of Los Angeles, Harbor
8 Department, 425 South Palos Verdes Street, San Pedro, CA 90731, Attention: Joy Crose, Asst.
9 General Counsel, City Attorney's Office.
10 (5) Programs at the Port of Long Beach. Payments to the Port of Long Beach
11 shall be made payable to the "Port of Long Beach." Each check shall be accompanied by a
12 cover letter stating that the payment is made under Paragraph 5 .2(2) of this Consent Judgment.
13 Payments shall be sent to Dominic Holzhaus, Principal Deputy City Attorney, Long Beach City
14 Hall, 333 West Ocean Boulevard, Long Beach, California 90802
15 (6) Copies of checks. Settling Defendant will cause copies of each and every
16 check issued pursuant to this Judgment to be sent to: Dennis A. Ragen, Deputy Attorney
17 General, 110 West A. Street, Suite 1100, San Diego, Califomia 92101, and, if a payment is not
18 confirmed. Settling Defendants will provide further verification of such payment upon the
19 request of the Attorney General.
20 6. MODIFICATION OF CONSENT JUDGMENT
21 6.1 This Consent Judgment may be modified from time to time by express written
22 agreement of the Parties with the approval of the Court; by an order of this Court on noticed
23 motion from Plaintiff or Settling Defendants in accordance with law; or by the Court in
24 accordance with its inherent authority to modify its own jud!,'1nents.
25 6.2 Before filing an application with the Court for a modification to this Consent
26 Judgment, the party seeking modification shall meet and confer with the other party or parties to
27 be bound to detennine whether the modification may be achieved by consent. If a proposed
28 modification is agreed upon, then the Settling Dcfendant(s) to be bound and the Attorney
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Consent Judgment