Fireclay - Judgment 2018 - California

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1 XAVIER BECERRA EXEMPT FROM FILING FEES Attorney General of California GOVERNMENT CODE § 6103

2 DAVID A. ZONANA Supervising Deputy Attorney General

3 GEORGE TORGUN Deputy Attorney General

4 State Bar No. 222085 1515 Clay Street, 20th Floor

5 P.O. Box 70550 FI LSan ED Francisco County superior OouftOakland, CA 94612-0550

6 Telephone: (510) 879-1002 NOV 1 9 2018Fax: (510) 622-2270 7 E-mail: [email protected] CLERK ,Qp THE COUAi

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,.[PR@P08i;:l;).] FINAL JUDGMENT AND ORDER ON CONSENT-Case No. CGC-17-560318

Attorneys for the People of the State of California, 1 ' Deputy Clerk · ex rel. Barbara A. Lee, Director of the California Department of Toxic Substances Control

SUPERIOR COURT OF THESTATEOF CALIBORNIA

COUNTY OF SAN FRANCISCO

PEOPLEOF THESTATEOF CALIBORNIA, ex rel. Barbara A. Lee, Director of the California Department of Toxic Substances Control,

Case No. CGC 17-560318

[Pft:OPO�ED] FINAL JUDGMENTc-A:NB-ORDER ON CONSENT

Plaintiff,

V.

FIRECLA Y TILE, INC., a California Corporation, and DOES 1 through 10, inclusive,

Defendants.

Good cause appearing herein, the Court finds that the settlement between the Plaintiff,

People of the State of California, ex rel. Barbara A. Lee, Director of the Department of Toxic

Substances Control ("DTSC"), and Defendant, Fireclay Tile, Inc. ("Defendant"), pursuant to the

terms and conditions set forth in the Stipulation for Settlement and Entry of Final Judgment and

Order ("Stipulation"), entered into by DTSC and Defendant and filed herewith, is fair and in the

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MrAaltW ~a~and Judgment

public interest. Accordingly, the Stipulation is is entered as provided

therein.

Original signed by Harold Kahn Dated:·--------

NOV O 9 2018 Judge ofthe Superior Court

HAROLD KAHN

2

~i!~] FINAL JUDGMENT AND ORDER ON CONSENT - Case No. CGC-17-S60318

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� ,, 1 XAVIER BECERRA EXEMPT FROM FILING FEES Attorney General of California GOVERNMENT CODE § 6103

2 DAVID A. ZONANA Supervising Deputy Attorney General

3 GEORGE TORGUN Deputy Attorney General

4 State Bar No. 222085 1515 Clay Street, 20th Floor

5 P.O. Box 70550 Oakland, CA 94612-0550

6 Telephone: (510) 879-1002 Fax: (510) 622-2270

7 E-mail: [email protected]

8 Attorneys for the People of the State of California, ex rel. Barbara A. Lee, Director of the California

9 Department of Toxic Substances Control

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

/

PEOPLE OF THE STATE OF CALIFORNIA, ex rel. Barbara A. Lee, Director of the California Department of Toxic Substances Control,

Plaintiff,

V.

FIRECLA Y TILE, INC., a California Corporation, and DOES 1 through 10, inclusive,

Defendants.

Case No. CGC 17-560318

STIPULATION FOR SETTLEMENT AND ENTRY 0F WRD:::ffipCMjj;NT ANDORBER

(Code of Civil Procedure§ 664.6)

STIPULATION FOR SETTLEMENT AND ENTRY OF FINAL JUDGMENT AND ORDER

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Plaintiff, the People of the State of California, ex rel. Barbara A. Lee, Director of the

California Department of Toxic Substances Control (the "Department"), and Defendant Fireclay

Tile, Inc. ("Fireclay") ( collectively, the "Parties"), enter into this Stipulation for Settlement and

Entry of Final Judgment and Order ("Stipulation"), and stipulate as follows:

THE COMPLAINT

1. On July 21, 2017, the Department filed a Complaint for Civil Penalties and Injunctive

Reliefpursuant to the California Hazardous Waste Control Law, chapter 6.5 of division 20 of the

Health and Safety Code ("HWCL") and its implementing regulations, California Code of

Regulations, Title 22, Division 4.5 ("Title 22"), against Fireclay, which owns and operates a

facility that manufactures glass tile, clay tile, and bricks located at 521 Quarry Road, Aromas,

California (the "Facility"). As set out more fully in the Complaint, the Department alleges that

operations at the Facility, specifically, the manufacturing of glass tile using cathode ray tube

panel glass ("CRT panel glass") and solar glass tubes, has resulted in the illegal treatment,

storage, and disposal of hazardous waste and hazardous waste constituents. The Department also

alleges in the Complaint that Fireclay has failed to determine if its waste constitutes a hazardous

waste, failed to minimize the possibility of a release of a hazardous waste, and failed to properly

train personnel or maintain training records.

AGREEMENT TO SETTLE DISPUTE

2. The Parties enter into this Stipulation pursuant to a compromise and settlement of

disputed claims and mutually consent to the entry by this Court of the agreed upon Final

Judgment and Order in the form attached hereto as Exhibit 1 ("Judgment"). The Parties are each

represented by counsel. The Office of the Attorney General represents the Department, and Mr.

James T. Dufour of Dufour Safety, Environmental & Regulatory Law represents Fireclay. This

Stipulation and the Judgment were negotiated in good faith and at arm's length by the Parties to

avoid expensive and protracted litigation regarding the alleged violations of the HWCL and its

implementing regulations, and to further the public interest.

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JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction over the matters alleged in the Complaint

and personal jurisdiction over Fireclay. Venue is proper under Health and Safety Code section

25183.

WAIVER OF TRIAL AND ENTRY OF JUDGMENT

4. By signing and entering into this Stipulation, Fireclay waives its right to a trial on

matters alleged in the Complaint. Further, the Parties each request entry of the Judgment on the

terms set forth in this Stipulation.

APPLICABILITY

5. The provision of this Stipulation and the Judgment shall apply to and be binding on

(a) Fireclay, its subsidiaries and divisions, its parent companies, its officers and directors, its

successors and assigns, and all persons, as that term is defined in Health and Safety Code section

25118, acting in concert or participating with Fireclay at the Facility, and (b) the Department and

any successor agency of the Department that may have responsibility for and jurisdiction over the

subject matter of the Judgment entered in this matter.

SETTLEMENT; ADMISSIONS

6. The Parties enter into this Stipulation as a compromise and settlement of disputed

claims for the purpose of avoiding prolonged and complicated litigation and in furtherance of the

public interest. The Parties agree that there has been no adjudication of any fact or law.

However, Fireclay admits the violations in paragraphs 33 through 68 of the Complaint. Except as

expressly set forth in this paragraph, Fireclay does not admit any fact or violation oflaw.

MATTERS COVERED

7. Except as otherwise provided in this Stipulation, this Stipulation is a full, final, and

binding resolution and settlement of all claims, violations, or causes of action specifically alleged

by the Department in the Complaint ("Covered Matters"). Any claim, violation, or cause of

action that is not a Covered Matter is a "Reserved Claim." Reserved Claims include, without

limitation, any claims under the Comprehensive Environmental Response, Compensation, and

Liability Act (42 U.S.C., § 9601 et seq.), the California Hazardous Substance Account Act

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(Health & Saf. Code, § 25300 et seq.), or any alleged violations of the HWCL that are not

Covered Matters. In any subsequent action that may be brought by the Department based on any

claim, violation, or cause of action that is not a Covered Matter pursuant to this Stipulation,

Fireclay agrees that it will not assert that failing to pursue such claim, violation, or cause of action

as part of this action constitutes claim-splitting.

GENERAL INJUNCTIVE PROVISIONS

8. Fireclay, shall be, and is permanently enjoined as follows:

Pursuant to the provisions of Health and Safety Code sections 25181 and 25184, Fireclay

shall comply with the HWCL and its implementing regulations at, and in connection with, the

operations of its Facility. Moreover, pursuant to California Code of Regulations, title 22, section

66262.1 O(h), as a generator who may treat, store, or dispose of hazardous waste on-site, Fireclay

shall comply with all applicable standards set forth in chapters 14, 15, 16, 18, and 20 of division

4.5 of California Code of Regulations, title 22 in the event such activities are conducted. For

purposes of this Stipulation and Judgment, CRT panel glass and solar glass tubes, and any glass

particles from these materials, constitute hazardous waste under California law, unless such

materials are determined to be exempt pursuant to paragraph 18 below. Failure to comply with

the specific injunctive provisions that follow may subject Fireclay to the enforcement provisions

set forth below.

SPECIFIC INJUNCTIVE PROVISIONS

9. Within one hundred eighty (180) days of the entry of Judgment in this matter,

Fireclay shall conduct a complete waste analysis plan for all waste streams generated at the

Facility as described in California Code of Regulations, title 22, section 66265 .13 and shall

submit the waste analysis plan to the Department.

10. Fireclay shall not dispose of hazardous waste except at an authorized point as

provided in Health and Safety Code sections 25200, 25201(a), and 25203. If authorized, Fireclay

shall lawfully and timely dispose of all accumulated hazardous waste from the Facility as

required by California Code of Regulations, title 22, section 66262.34. Fireclay shall timely

prepare, and submit to the Department, a hazardous waste manifest for any hazardous waste that

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is transported, or submitted for transportation, for offsite handling, treatment, storage, disposal, or

any combination thereof, as provided by Health and Safety Code section 25160(b )(3) and ·

California Code of Regulations, title 22, section 66262.23, and shall timely notify the Department

of the treatment, storage, or disposal facility's failure to return an executed manifest. In the

alternative, at Fireclay's sole discretion it may ship hazardous waste generated on-site off-site for

recycling or disposal pursuant to the consolidated manifesting system authorized by California

Health and Safety Code section 25160.2, provided that the hazardous waste is eligible for

shipment on a consolidated manifest.

11. Fireclay shall not treat hazardous waste at its Facility without authorization from the

Department, or pursuant to the HWCL and Title 22, or as provided in paragraph 18 below.

12. Fireclay shall not unlawfully store hazardous waste at its Facility. If Fireclay has

authorization to store hazardous waste, Fireclay shall clearly mark each container of hazardous

waste with the initial date on which accumulation begins and a label with the word�

"HAZARDOUS WASTE," the composition and physical state of the waste, the hazardous

properties, and the name and address of the generator as required by California Code of

Regulations, title 22, section 66262.34. Fireclay must ensure that each container of hazardous

waste is in good condition and structurally sound as required by California Code of Regulations,

title 22, section 66265.171. Fireclay shall close the containers unless removing or adding wastes,

and shall not open, handle, transfer, or store such containers in a manner which may cause them

to rupture or leak, as required by California Code of Regulations, title 22, section 66265 .173.

Fireclay must provide adequate aisle space in the storage areas as required by California Code of

Regulations, title 22, section 66265.35.

13. Fireclay shall not accumulate hazardous waste on-site without authorization from the

Department, except as provided in California Code of Regulations, title 22, section 66262.34.

14. Within thirty (30) calendar days of entry of the Judgment in this matter, Fireclay shall

submit documentation demonstrating that all machinery and areas of the Facility used for the

production of tiles from CRT panel glass and solar glass tubes, including, but not limited to the

hammermill, kiln, mechanical screens, operation area, and proximate plant location, have been

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cleaned sufficiently to meet the generator closure standard referenced by California Code of

Regulations, title 22, section 66265 .111. Fireclay' s certification of compliance shall include such

documentation and a statement that such machinery and areas of the Facility are not used for

processing of any hazardous waste, including universal waste.

15. Fireclay shall conduct weekly inspections of all areas of the Facility where hazardous

waste is generated, accumulated, stored, or treated. The inspections shall ensure that hazardous

waste at the Facility is managed in accordance with the HWCL, including, but not limited to,

California Code of Regulations, title 22, sections 66262.34, 66265.31, 66265.35, 66265.171,

66265.173, and 66265.174. If hazardous waste spills and/or releases are discovered at the

Facility, Fireclay shall take appropriate action consistent with the HWCL. Prior to the pick-up of

any trash cans or dumpsters at the Facility, the contents of which are destined for municipal solid

waste landfills, Fireclay shall conduct inspections of the same for improper disposal of hazardous

waste. Fireclay shall maintain a written log on-site of these inspections as part of the Facility's

inspection requirements consistent with California Code of Regulations, title 22, section

66265.15. The log shall be made available to the Department upon request.

16. Fireclay shall maintain and operate the Facility to minimize the possibility of an

unplanned, sudden, or non-sudden release of hazardous waste or hazardous waste constituents at

the Facility as required by California Code of Regulations, title 22, section 66265 .31, including,

but not limited to, CRT panel glass particles and solar glass tube particles from the hammermill,

the crushing/demagnetizing unit, and the mechanical sieves, and walkways around such areas.

17. Fireclay shall comply with the employee training requirements mandated by

California Code of Regulations, title 22, section 66265.16, pertaining to the management of

hazardous waste, including, but not limited to, the training of employees, contractors, and all

managers responsible for Facility personnel that may manage or otherwise come into contact with

hazardous waste in the scope of their work duties. As part of the training required by this

paragraph, Fireclay shall train all Facility employees and contractors not to dispose of any

hazardous waste into any non-hazardous waste containers or dumpsters, the contents of which are

destined for municipal solid waste landfills. Fireclay shall maintain training records for current

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employees and contractors until closure of the Facility, and maintain training records for former

employees for at least three (3) years from the date the employee last worked at the Facility.

18. To the extent that Fireclay engages in the manufacture of glass tile using CRT panel

glass and/or glass particles derived from such material, the following requirements apply:

a. Fireclay may determine that the CRT panel glass and glass particles derived from

such material generated, stored, treated, and/or otherwise managed at the Facility meet the

definition of a universal waste under California Code of Regulations, title 22, division 4.5,

chapter 23, sections 66273.1-66273.101 ("Standards for Universal Waste Management"). IfCRT

panel glass and glass particles from such material meets the definition of a universal waste,

Fireclay may manage such material pursuant to the Standards for Universal Waste Management.

In addition to any other requirements of the HWCL, Fireclay shall provide notice to the

Department personnel listed in Paragraph 30 below within 30 days of any such determination.

b. Fireclay may determine that the CRT panel glass, and glass particles derived from

such material, generated, stored, treated, and/or otherwise managed at the Facility are exempt

from the requirements of the HWCL if they meet the requirements of Health and Safety Code

section 25143.2.5. In addition to any other requirements of Health and Safety Code section

25143.2.5, Fireclay shall provide notice to Department personnel listed in Paragraph 30 below

within 30 days of any such determination, and shall provide test results demonstrating that the

CRT panel glass does not exceed the total threshold limit concentration for any constituent other

than barium.

19. Fireclay must send any employee(s) designated to act as its primary or secondary

emergency coordinator(s) to the California Compliance School, Modules I-IV. Attendance must

be completed and Fireclay must submit a Certificate of Satisfactory Completion issued by the

California Compliance School to the Department within 180 days of the entry of this Judgment.

In recognition of this educational investment, the civil penalty shall be reduced by one thousand

dollars ($1,000) for each employee, for up to five (5) employees, who satisfactorily completes the

specified course. Should less than five (5) employees complete the specified course within 180

days of the entry of this Judgment, the difference between five thousand dollars ($5,000) and the

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amount of one thousand dollars ($1,000) for each employee that completed the specified course

shall be paid to the Department as a civil penalty pursuant to paragraph 24 herein.

20. Within forty-five (45) days after the entry of this Stipulation and Judgment, Fireclay

shall select and retain the services of an independent third-party auditor who is qualified to

conduct hazardous waste audits to determine compliance with the HWCL and its implementing

regulations ("Auditor"). The Auditor shall be either a Registered Environmental Assessor or

Professional Engineer, licensed in California, and knowledgeable and experienced in

environmental laws, including the HWCL. Prior to selecting the Auditor, Fireclay shall provide

the name and curriculum vitae of the proposed Auditor to the Department.

21. The Auditor will use the "Hazardous Waste Generator Inspection Report," attached

hereto as Exhibit 2, as guidance for a hazardous waste audit to determine whether Fireclay is

meeting the requirements of this Stipulation and the Judgment and complying with the HWCL

and its implementing regulations.

22. Beginning one (1) year after the entry of this Stipulation and the Judgment, and

continuing for two (2) years, the Auditor shall conduct two (2) hazardous waste compliance

audits of the Facility. For each audit, the Auditor shall also prepare and submit a narrative

hazardous waste audit report to Fireclay, with a copy to the Department and the San Benito

County Environmental Health Department, within sixty (60) calendar days after each of the two

audit deadlines described in this paragraph. The hazardous waste audit reports shall include, but

not be limited to, a complete description and discussion of all audit objectives, scope, and criteria,

findings, recommendations, and conclusions, and shall identify and discuss all evidence

considered or relied upon to support the conclusions. The hazardous waste audit reports shall

also contain a brief description of any written advisements or violations, including formal Notices

of Violations (NOVs) or Summaries of Violations (SOVs) and inspection reports directed to

Fireclay by any local, state, or federal agency that identifies any violation of any environmental

law relating to the management of any hazardous material or waste, and the disposition of any

such noted violations, including whether Fireclay paid any fines, costs, or other payments and

what corrective measures, if any, were taken by Fireclay. Within thirty (30) days after receipt by

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the Department of each hazardous waste audit report, Fireclay shall provide the Department with

a plan and schedule to correct any deficiencies raised in the hazardous waste audit report that

remain uncorrected. The requirement to provide the Department a plan of correction shall not be

construed as a "cure period" nor relieve Fireclay from the requirement to promptly correct any

deficiency or violation as required by the HWCL.

23. The Parties agree that the hazardous waste compliance audits and corresponding

hazardous waste audit reports are not binding on the Department. The Department in no way

delegates or waives its enforcement authority. Furthermore, the Department's action or inaction

shall neither impair nor waive the Department's authority to enforce the HWCL or this

Stipulation and the Judgment.

CIVIL PENALTIES

24. Fireclay is liable to the Department for a total ofninety thousand dollars ($90,000) in

civil penalties, including the Department's administrative costs often thousand dollars ($10,000),

which the Department has determined to be the appropriate penalty for the violations alleged in

the Compliant. Within thirty (30) calendar days of entry of the Judgment in this matter, Fireclay

shall make an initial payment of forty-five thousand dollars ($45,000) to the Department by

cashier's check or electronic fund transfer in accordance with instructions provided by the

Department. The remainder of the civil penalty amount shall be due in full within one (1) year of

entry of the Judgment in this matter. Ifby check, the check shall be made payable to "California

Department of Toxic Substances Control," bearing the following notation: "Fireclay Tile,

DTSC601575-65," and be mailed to:

Cashier Accounting Office, MS-21A Department of Toxic Substances ControlP.O. Box 806 Sacramento, CA 95812-0806

An electronic (i.e., Adobe PDF) or paper photocopy of the check shall be sent at the same time to:

Denise Tsuji Branch Chief Enforcement and Emergency Response Division Department of Toxic Substances Control

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8800 Cal Center Drive Sacramento, CA 95826-3200 [email protected]

Colin Roberts AttorneyOffice of Legal Counsel Department of Toxic Substances Control 1001 I Street, MS23 Sacramento, CA 95814 [email protected]

George Torgun Deputy Attorney General Office of the Attorney General 1515 Clay Street, 20th Floor Oakland, CA 94612-0550 [email protected]

25. Fireclay may pay up to forty-five thousand dollars ($45,000) of the total civil penalty

amount towards one or more Supplemental Environmental Projects ("SEPs") that comply with

the requirements of the Department's May 3, 2016 SEP Policy (DTSC-OP-035), under which

SEPs will be proposed by Fireclay and approved by the Department in its sole discretion.

26. Within sixty (60) calendar days of entry of the Judgment in this matter, Fireclay shall

propose one or more SEPs to the Department, which proposal(s) shall incorporate the

requirements set forth in Sections X. A, B, and C of the Department's May 2016 SEP Policy.

The Department shall exercise its discretion to approve or deny Fireclay's SEP proposal(s) within

60 calendar days ofreceipt of a complete proposal from Fireclay. If the Department denies

Fireclay's SEP proposal(s), the parties shall meet and confer within fifteen (15) calendar days to

allow for further discussion regarding the SEP proposal(s). If the Parties are unable to reach an

agreement at the conclusion of the 15 calendar day meet and confer, the above time periods will

restart. The Parties agree to participate in the SEP proposal and review process in good faith.

27. The Parties shall have one year to complete the SEP proposal and review process.

The Court shall retain jurisdiction to determine whether the Parties have participated in good faith

in the SEP proposal and review process described herein. Fireclay shall fully complete any SEP

proposed to and approved by the Department within one after the date of the Department's

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approval of the SEP. IfFireclay does not timely request and/or the Department does not

authorize Fireclay to expend the full $45,000 on SEPs by one year after entry of this Stipulation,

then Fireclay shall pay the balance of this amount to the Department, half as civil penalties, and

half as costs.

28. Fireclay shall pay a late payment of one thousand dollars ($1,000) per day for each

day a payment is late. In addition, Fireclay shall pay the Department post-judgment interest as

provided in Code of Civil Procedure section 685.010 often percent (10%) from the date of the

default. Further, Fireclay is obligated to pay costs incurred by the Department in enforcing the

money judgment against Fireclay in this matter, including, but not limited to, reasonable

attorneys' fees.

ENFORCEMENT

29. Any party may, by motion or order to show cause before the Superior Court of San

Francisco County, enforce the terms and conditions contained in this Stipulation and the

Judgment. Where a failure to comply with this Stipulation and the Judgment constitutes future

violations of the HWCL, or other laws independent of this Stipulation and the Judgment, the

Department is not limited to enforcement of this Stipulation and the Judgment, but may seek in

another action, subject to satisfaction of any procedural requirements, fines, costs, fees, penalties,

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injunctive relief or remedies as provided by law for failure to comply with the HWCL, its

implementing regulations, or other laws.

NOTICES

30. All notices under this Stipulation and the Judgment entered by the Court shall be in

writing and shall be sent to:

For the Department:·

Denise Tsuji Branch Chief Enforcement and Emergency Response Division Department of Toxic Substances Control 8800 Cal Center Drive Sacramento, CA 95826-3200 [email protected]

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STIPULATION FOR SETTLEMENT AND ENTRY OF FINAL JUDGMENT AND ORDE

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Colin Roberts Attorney Office of Legal Counsel Department of Toxic Substances Control 1001 I Street, MS23 Sacramento, CA 95814 [email protected]

and

George Torgun Deputy Attorney General Office of the Attorney General 1515 Clay Street, 20th Floor Oakland, CA 94612-0550

For Fireclay Tile:

Eric Edelson CEO Fireclay Tile, Inc. 901 Brannan Street San Francisco, CA 94103

Paul Burns Chief Ceramacist Fireclay Tile, Inc. 901 Brannan Street San Francisco, CA 94103

For San Benito County Environmental Health Department:

Darryl Wong, REHS Director of Environmental Health County of San Benito 1111 San Felipe Rd. Suite 102 Hollister, CA 95023

31. Any party may change its notice recipients and/or address by informing the other

parties in writing by certified mail. The change shall be effective upon receipt of the certified

mail.

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32. All notice and communications required or permitted under this Stipulation and

Judgment that are properly addressed as provided in paragraph 31 are effective upon delivery if

delivered personally or by overnight delivery, or are effective five (5) days following deposit in

the United States mail, postage prepaid, if delivered by mail.

AUTHORITY TO ENTER STIPULATION

33. Each signatory to this Stipulation certifies that he or she is fully authorized by the

party he or she represents to enter into this Stipulation, to execute it on behalfof the party

represented, and to legally bind that party.

APPLICATION OF CONSENT JUDGMENT

34. Both this Stipulation and the Judgment shall apply to and be binding upon the

Department and upon Fireclay and its officers, managers, employees, agents, contractors,

successors, and assigns in their official capacity.

NO WAIVER OF RIGHT TO ENFORCE

35. The failure of the Department to enforce any provision ofthe Stipulation or the

Judgment shall neither be deemed a waiver of such provision, nor in any way affect the validity

ofthe Stipulation or Judgment or the Department's enforcement authority. The failure of the

Department to enforce any provision of the Stipulation or the Judgment shall not preclude it from

later enforcing the same or other provisions. No oral advice, guidance, suggestions, or comments

by employees or officials of the Department or Fireclay, or people or entities acting on behalf of

Fireclay, regarding matters covered in this Stipulation or the Judgment, shall be construed to

relieve Fireclay of its obligations under this Stipulation or the Judgment.

NO LIABILITY OF THE DEPARTMENT

36. The Department shall not be liable for any injury or damage to persons or property

resulting from acts or omissions by Fireclay or its respective officers, directors, employees,

agents, representatives, contractors, successors, or assigns, or other persons acting in concert or

participating with Fireclay, in carrying out activities pursuant to this Stipulation or the Judgment,

nor shall the Department be held as a party to or guarantor of any contract entered into by

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Fireclay or its respective officers, directors, employees, agents, representatives, contractors,

successors, or assigns in carrying out the requirements of this Stipulation or the Judgment.

FUTURE STATUTORY OR REGULATORY CHANGES

37. Nothing in this Stipulation or the Judgment shall excuse Fireclay from meeting any

more stringent requirements that may be imposed by changes in applicable law. In the event that

future statutory or regulatory changes make Fireclay' s obligations less stringent than those

provided for in this Stipulation or the Judgment, Fireclay: (a) may stipulate with the Department

to modify the obligations to the extent necessary for Fireclay to comply with such possible future

statutory or regulatory changes and submit such stipulation to this Court for review and approval;

or (b) may apply to this Court by noticed motion to modify the obligations contained herein to the

extent necessary for Fireclay to comply with such possible future statutory or regulatory changes.

INTEGRATION

38. This Stipulation and the Judgment constitute the entire agreement between the Parties

and may not be amended or supplemented except as provided for in this Stipulation or in the

Judgment. No oral representations have been made or relied on other than as expressly set forth

herein.

RETENTION OF JURISDICTION

39. The Parties agree that the Court has continuing jurisdiction to interpret and enforce

the provisions of this Stipulation and the Judgment.

EQUAL AUTHORSHIP

40. This Stipulation shall be deemed to have been drafted equally by the Parties hereto.

The Parties agree that the rule of construction holding that ambiguity is construed against the

drafting party shall not apply to the interpretation of this Stipulation.

AMENDMENTS TO THIS STIPULATION

41. This Stipulation and the Judgment may be amended only pursuant to a written

agreement signed by all the Parties, followed by written approval by the Court, or by order of the

Court following the filing of a duly noticed motion.

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e COUNTERPARTS

42. This Stipulation rnay be executed in several counterpart originals, all ofwhich taken

together shall constitute an integrated document.

ABILITY TO INSPECT AND COPY RECORDS AND DOCUMENTS

43. Fireclay shall permit any duly authorized representative of the Department to exercise

their regulatory authority to inspect and copy Fireclay's records and documents to determine

whether Fireclay is in compliance with the terms ofthe Stipulation and the Judgment.

ENTRY OF JUDGMENT PURSUANT TO STIPULATION

44. The Parties further stipulate that upon approval ofthis Stipulation by the Court, the

Court may enter the Judgment in this matter in the form set forth in Exhibit!, attached hereto.

The effective date ofthe Judgment is the date the Judgment is entered by the Court. If the Court

does not approve this Stipulation and the Judgment in the form and substance proposed in Exhibit

1 hereto, each Party reserves the right to withdraw both the Stipulation and the Judgment upon

written notice to all Parties and the Court.

IT IS SO STIPULATED.

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-. ,.,,-·

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Dated: OctoberJ_~20l8 . "

Dated: October_, 2018


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For tl1e Department of Toxic Substances Control

Original signed by Denise Tsuji 1 •Denis0rsuj{ -z;;-

Bra1'1ch Chief Enforcement and Emergency Response Divisio1_1,

For Fireclay Tile,, lnc.

ERJC EDELSON CEO

APPROVED AS TO FORM:

Dated: October~2018

XAVIER BECERRA AJ;torney General of California DAVID A. ZONANA Supervising Deputy Attorney General

Original signed by---George Torgun V,

GEORGE TORGUN Deputy Attorney General

Attorneys for PEOPLE OF THE STATE OF CALIFORNIA, ex rel., Barbara A. Lee, Director ofth~ CaNfornia Department of Toxic Substances Cont-rol

JAMES T,.DUFOUR Law Offices of James T. Dufour

Attorney for FIRECLAY TILE~ me.

STIPULATION :FOR SETTLEMENT AND ENTRY OF FINAL JUDGMENT AND ORDER

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Dated: October____, 2018 10/23/2018 8:46:09 PM PDT

APPROVED AS TO FORM:

·. .Da~ed: October._, 2018

For the Department of Toxic Substances Control

Denise Tsuji Branch Chief Enforcement and Emergency Response Division.

For Fireclay Tile, Inc,

Original signed by Eric Edelson \_f'BMOOllDOA'34DC.,. Brue EDELSON CEO

XAVIER BECERRA Attorney General ofCalifornia DAVID A. ZONANA Supervising Dep.uty Attorney General

GEORGE TORGUN Deputy Attorney 9eneral

Attorneys for PEOPLE OF THE STATE OF CALIFORNIA, ex rel., Barbara A. Lee, .Director ofthe California Department of Toxic Substances Control

/7 r I

Dated: October;;},_~2018 Original Signed by James Dufour

(~~1:.:, .1,lJUl.'VUI<.. JJ.'(J' Offices ofJamev, Du.four

Attorney for FJRECLAY TILE, INC.

16 STIPULATION FOR SETTLEMENT AND ENTRY OF FINAL flJDGMENT AND ORDER

Documents

Fireclay - Judgment 2018 - California