Case 2:21-cv-01705-JDC-KK Document 2-1 Filed 06/17/21 Page 1 of 31 PageID #: 17
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
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`__________________________________________
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`UNITED STATES OF AMERICA and
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`STATE OF LOUISIANA,
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`Plaintiffs,
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`v.
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`CITGO PETROLEUM CORPORATION,
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`Defendant.
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`__________________________________________)
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`CONSENT DECREE FOR
`NATURAL RESOURCE DAMAGES
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION.......................................................................................................... 1
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`II. JURISDICTION AND VENUE .................................................................................... 3
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`III. APPLICABILITY .......................................................................................................... 4
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`IV. DEFINITIONS ............................................................................................................... 4
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`V. STATEMENT OF PURPOSE ...................................................................................... 7
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`VI. PAYMENTS BY THE SETTLING DEFENDANT .................................................... 8
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`VII. STIPULATED PENALTIES ...................................................................................... 10
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`VIII. TRUSTEE-IMPLEMENTED NATURAL RESOURCE RESTORATION .......... 12
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`IX. COVENANTS BY THE PLAINTIFFS ...................................................................... 13
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`X. COVENANTS BY THE SETTLING DEFENDANT ............................................... 16
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`XI. COSTS .......................................................................................................................... 17
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`XII. NOTICE ........................................................................................................................ 17
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`XIII. RETENTION OF JURISDICTION ........................................................................... 19
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`XIV. MODIFICATION ........................................................................................................ 20
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`XV. TERMINATION .......................................................................................................... 20
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`XVI. PUBLIC PARTICIPATION ....................................................................................... 20
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`XVII. SIGNATORIES AND SERVICE ............................................................................ 21
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`XVIII. INTEGRATION ........................................................................................................ 22
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`XIX. FINAL JUDGMENT ................................................................................................... 22
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`I. INTRODUCTION
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`A.
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`Contemporaneously with the lodging of this Consent Decree, the United States of
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`America, on behalf of the United States Department of Commerce’s National Oceanic and
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`Atmospheric Administration (“NOAA”), the United States Department of the Interior (“DOI”),
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`and the United States Fish and Wildlife Service (“FWS”), jointly with the State of Louisiana (the
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`“State”), appearing through the Louisiana Oil Spill Coordinator’s Office, Department of Public
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`Safety & Corrections (“LOSCO”), Louisiana Department of Natural Resources (“LDNR”),
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`Louisiana Department of Environmental Quality (“LDEQ”), Louisiana Department of Wildlife
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`and Fisheries (“LDWF”), and the Louisiana Coastal Protection and Restoration Authority
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`(“CPRA”), have filed a Complaint against CITGO Petroleum Corporation (“CITGO” or
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`“Settling Defendant”) in this Court alleging that CITGO is liable to the United States and the
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`State under Section 1002(a) and (b)(2)(A) of the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C.
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`§ 2702 (a) and (b)(2)(A), and Section 2480 of the Louisiana Oil Spill Prevention and Response
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`Act (“OSPRA”), La. R.S. 30:2480, for damages for injury to, destruction of, loss of, or loss of
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`use of, Natural Resources, resulting from the discharge of oil from CITGO’s Lake Charles
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`Refinery into the Calcasieu River and estuary in June of 2006.
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`B.
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`The Complaint alleges that beginning on or about June 18, 2006, millions of
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`gallons of oil and oily wastewater (collectively, “oil”) overflowed from two of CITGO’s
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`wastewater storage tanks at its wastewater treatment facility at the refinery. The secondary
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`containment surrounding the tanks was breached and oil flowed into and upon the adjacent
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`Indian Marais waterway and shoreline, where some of the oil was contained, and then into the
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`Calcasieu River and estuary. These events are referred to as the “Incident.” In response to the
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`Incident, the Trustees evaluated the potential impacts to Natural Resources and identified
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`potential actions to restore affected Natural Resources.
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`C.
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`The Complaint further alleges that the Incident caused injury to, destruction of,
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`loss of, or loss of use of, Natural Resources belonging to, managed by, held in trust by,
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`appertaining to, or otherwise controlled by the United States and the State. The Complaint also
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`alleges that the Trustees have incurred costs in assessing the nature and extent of these injuries.
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`D.
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`The Trustees for the Natural Resources alleged to be injured by the Incident
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`include NOAA and FWS, on behalf of the United States, and LOSCO, LDNR, LDEQ, LDWF,
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`and CPRA, on behalf of the State. NOAA and FWS are designated as Trustees pursuant to
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`Section 1006(b)(2) of OPA, 33 U.S.C. § 2706(b)(2), Subpart G of the National Oil and
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`Hazardous Substances Pollution Contingency Plan (“NCP”) (40 C.F.R. §§ 300.600, et seq.) and
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`Executive Order 12580 (3 C.F.R., 1987 Comp. p. 193, 52 Fed. Reg. 2923 (January 23, 1987) as
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`amended by Executive Order 12777 (56 Fed. Reg. 54757 (October 19, 1991)). LOSCO, LDNR,
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`LDEQ, LDWF, and CPRA are designated as Trustees by the Governor of Louisiana pursuant to
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`Section 1006(b)(3) of OPA, 33 U.S.C. § 2706(b)(3), and subpart G of the NCP. These same
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`agencies serve as State Trustees under OSPRA according to La. R.S. 30:2451, et seq. and LA.
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`ADMIN. CODE tit. 43, part XXIX, et seq. The United States and the State are coordinating injury
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`assessment and Restoration efforts. Based on the Trustees’ work to assess injuries in this case
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`and experience with restoration efforts throughout the region, the Trustees believe the amount to
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`be paid by the Settling Defendant as set forth in this Consent Decree constitutes adequate
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`compensation for Natural Resource Damages arising from the Incident.
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`E.
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`The Settling Defendant neither admits nor denies the allegations in the Complaint
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`or Consent Decree and does not admit liability for the claims filed in this action.
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`F.
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`The Parties agree, and the Court, by entering this Consent Decree, finds that this
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`Consent Decree has been negotiated by the Parties in good faith, that it is intended to avoid
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`potentially prolonged and complicated litigation among the Parties and expedite natural resource
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`restoration actions to be performed by the Trustees, and that it is fair, reasonable, and in the
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`public interest consistent with the purposes of OPA.
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`NOW THEREFORE, with the consent of the Parties, IT IS HEREBY ADJUDGED,
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`ORDERED AND DECREED as follows:
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`II. JURISDICTION AND VENUE
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`1.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`Section 1017(b) of OPA, 33 U.S.C. § 2717(b), and 28 U.S.C. §§ 1331 and 1345. The Court also
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`has supplemental jurisdiction over the State law claims alleged in the Complaint pursuant to
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`28 U.S.C. § 1367. Venue lies in this District pursuant to Section 1017(b) of OPA, 33 U.S.C.
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`§ 2717(b), and 28 U.S.C. § 1391(b), because the Settling Defendant resides in this judicial
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`district and a substantial part of the alleged events or omissions giving rise to the claim occurred
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`in this judicial district. The Court has personal jurisdiction over the Settling Defendant in
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`connection with this action. For the purposes of this Consent Decree, and the underlying
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`Complaint, the Settling Defendant waives all objections and defenses that it may have to
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`jurisdiction of the Court or to venue in this District. The Settling Defendant agrees that it will not
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`challenge this Court’s jurisdiction to enter and enforce this Consent Decree.
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`2.
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`For purposes of this Consent Decree, the Settling Defendant agrees that the
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`Complaint states claims upon which relief may be granted pursuant to Section 1002(a) and
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`(b)(2)(A) of OPA, 33 U.S.C. § 2702 (a) and (b)(2)(A), and Section 2480 of OSPRA, La. R.S.
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`30:2480.
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`III. APPLICABILITY
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`3.
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`This Consent Decree applies to and is binding upon: the United States, on behalf
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`of NOAA, DOI, and FWS, as designated federal trustees for Natural Resources, including those
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`Natural Resources at, in the vicinity of, or affected by the Incident; the State, on behalf of
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`LOSCO, LDNR, LDEQ, LDWF, and CPRA, as designated State trustees for Natural Resources,
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`including those Natural Resources at, in the vicinity of, or affected by the Incident; and, the
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`Settling Defendant, including, without limitation, its successors, assigns, employees, directors,
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`officers, agents, vessels, guarantors, and underwriters, or other entities or persons otherwise
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`bound by law. Any change in ownership or corporate status of the Settling Defendant including,
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`but not limited to, any transfer of assets or real or personal property, whether voluntary or
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`involuntary, shall in no way alter the Settling Defendant’s rights or responsibilities under this
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`Consent Decree. In any action to enforce this Consent Decree, the Settling Defendant shall not
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`raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to
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`take any actions necessary to comply with the provisions of this Consent Decree.
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`IV. DEFINITIONS
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`4.
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`Unless otherwise expressed herein, terms used in this Consent Decree that are
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`defined in Section 1001 of OPA, 33 U.S.C. § 2701, and in the regulations promulgated under
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`OPA at 15 C.F.R. § 990.30, shall have the meaning assigned to them in OPA or in such
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`regulations. In addition, whenever the terms set forth below are used in this Consent Decree, the
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`following definitions shall apply:
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`a. “Complaint” shall mean the civil complaint filed in this action by the Plaintiffs.
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`b. “Consent Decree” shall mean this Consent Decree.
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`c. “Day” shall mean a calendar day. In computing any period of time under this
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`Consent Decree, where the last day would fall on a Saturday, Sunday, or Federal
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`or State holiday, the period shall run until the close of business of the next
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`working day.
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`d. “Effective Date” or “Entry” shall be the date upon which this Consent Decree is
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`entered by the Court or motion to enter the Consent Decree is granted, whichever
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`occurs first, as recorded on the Court’s docket.
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`e. “CITGO Lake Charles Refinery Oil Spill Restoration Account” shall mean a
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`separate project-numbered account established within DOI’s Natural Resource
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`Damage Assessment and Restoration Fund (“DOI NRDAR Fund”), which will be
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`funded by the Settling Defendant in accordance with Section VI (Payments by the
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`Settling Defendant) of this Consent Decree and jointly administered by the
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`Trustees in accordance with Section VIII (Trustee-Implemented Natural Resource
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`Restoration).
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`f. “Incident” shall mean the occurrence described in Section I.B of this Consent
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`Decree, including, but not limited to, CITGO’s discharge of oil into the Indian
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`Marais, Calcasieu River, and the estuary in June 2006.
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`g. “Interest” shall be calculated at the rate set forth in 28 U.S.C. § 1961.
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`h. “Natural Resources” shall have the meaning provided in Section 1001(20) of
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`OPA, 33 U.S.C. § 2701(20).
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`i.
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` “Natural Resource Damages” shall mean the damages described at Section
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`1002(b)(2)(A) of OPA, 33 U.S.C. § 2702(b)(2)(A).
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`j.
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` “Natural Resource Damage Assessment” shall mean the process of collecting,
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`compiling, and analyzing information, statistics, or data through prescribed
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`methodologies to determine damages for injuries to Natural Resources, as
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`provided by law.
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`k. “OPA” shall mean the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat.
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`484, 33 U.S.C. §§ 2701-2761.
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`l. “Oil Spill Liability Trust Fund” shall mean the fund defined in Section 1001(11)
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`of OPA, 33 U.S.C. § 2701(11).
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`m. “Paragraph” shall mean a portion of this Consent Decree identified by an Arabic
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`numeral.
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`n. “Parties” shall mean the United States, the State of Louisiana, and the Settling
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`Defendant.
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`o. “Removal Costs” and “Damages” shall have the meanings ascribed to them
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`pursuant to Sections 1001(5), 1001(31), and 1002(b) of OPA, 33 U.S.C.
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`§§ 2701(5), 2701(31), and 2702(b).
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`p. “Restore” or “Restoration” shall mean any action or combination of actions
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`authorized by OPA and its underlying regulations to restore, rehabilitate, replace
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`or acquire the equivalent of any Natural Resource and services, including
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`recreational opportunities that were injured, lost, or destroyed as a result of the
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`Incident.
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`q. “Restoration Plan” shall mean a plan or plans to be developed by the Trustees in
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`accordance with OPA and its underlying regulations at 15 C.F.R. §§ 990.53 –
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`990.56.
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`r. “Section” shall mean a portion of this Consent Decree identified by a roman
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`numeral.
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`s. “Settlement Payment” shall mean the sum total of the payments cited in Section
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`VI (Payments by the Settling Defendant) together with any accrued Interest.
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`t. “State” shall mean the State of Louisiana, and each department, agency, and
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`instrumentality of the State of Louisiana, including the State Trustees.
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`u. “State Trustees” shall mean LOSCO, LDNR, LDEQ, LDWF, and CPRA.
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`v. “Subparagraph” shall mean a portion of this Consent Decree identified by a lower
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`case letter.
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`w. “Trustees” shall mean the designated federal and state officials, and their
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`designees, who act on behalf of the public as trustees for the Natural Resources,
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`as described in Section I, Paragraph D.
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`x. “United States” shall mean the United States of America and each department,
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`agency, and instrumentality of the United States, including NOAA, DOI, and
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`FWS.
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`V. STATEMENT OF PURPOSE
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`5.
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`The mutual objectives of the Parties in entering into this Consent Decree are:
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`(i) to provide funding by the Settling Defendant to the Trustees to restore, replace, or acquire the
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`equivalent of the Natural Resources allegedly injured, destroyed, or lost as a result of the
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`Incident; (ii) to provide payment by the Settling Defendant to the Trustees to reimburse the
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`remaining unpaid Natural Resource Damage Assessment costs incurred by the Trustees; and (iii)
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`to resolve the Plaintiffs’ claims against the Settling Defendant for Natural Resource Damages as
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`provided herein.
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`VI. PAYMENTS BY THE SETTLING DEFENDANT
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`6.
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`The Settling Defendant shall make payments totaling $19,688,149.83 to the
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`Plaintiffs in the manner described in Paragraphs 7 and 8 below.
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`7.
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`The Settling Defendant shall pay for Trustee-sponsored Natural Resource
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`Restoration work and the United States’ remaining unpaid Natural Resource Damage
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`Assessment and Restoration planning costs that have already been incurred as follows:
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`a. Within ninety (90) Days of the Effective Date, the Settling Defendant shall
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`pay a total of $19,446,224.45 to the United States. Payment shall be made
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`by FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of
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`Justice account in accordance with current EFT procedures, referencing the
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`case number and DOJ Number 90-5-1-1-09112/1. Payment shall be made in
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`accordance with instructions provided to the Settling Defendant by the
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`Financial Litigation Unit of the United States Attorney’s Office for the
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`Western District of Louisiana following entry of the Consent Decree.
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`b. Of the total amount to be paid to the United States by the Settling Defendant
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`pursuant to Subparagraph 7.a:
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`i. As a joint recovery of Natural Resource Damages by the Plaintiffs,
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`$19,160,000.00 shall be deposited in a segregated sub-account
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`within the DOI NRDAR Fund to be managed by DOI for the joint
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`benefit and use of the Trustees to pay for Trustee-sponsored
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`Restoration planning, Restoration projects, and the administration of
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`Trustee responsibilities in accordance with Section VIII.
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`ii. Subject to the deduction required by 1994 CJS Appropriations Act,
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`$84,410.00 shall be deposited in the DOI NRDAR Fund, to be
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`applied toward unpaid Natural Resource Damage Assessment and
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`Restoration planning costs incurred by DOI and FWS; and
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`iii. Subject to the deduction required by 1994 CJS Appropriations Act,
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`$201,814.45 shall be deposited in the NOAA DARR Fund, to be
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`applied toward unpaid Natural Resource Damage Assessment and
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`Restoration planning costs incurred by the Department of Commerce
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`and NOAA.
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`8.
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`The Settling Defendant shall pay a total of $241,925.38 to LOSCO for unpaid
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`Natural Resource Damage Assessment and Restoration planning costs that have already been
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`incurred by the State Trustees. Payment shall be made within ninety (90) Days of the Effective
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`Date and shall be made by EFT in accordance with payment instructions provided to the Settling
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`Defendant by LOSCO following entry of the Consent Decree. The payment shall reference
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`“Calcasieu River Oil Spill LA2006_0621_0846.”
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`9.
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`At the time of the payments, the Settling Defendant shall send written notices of
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`payment and a copy of any transmittal documentation to the Trustees in accordance with Section
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`XII (Notice). The notice shall reflect that the payment is being made for the “CITGO Lake
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`Charles Refinery Oil Spill Natural Resource Damages Settlement.”
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`10.
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`Interest shall be paid by the Settling Defendant on any amounts not paid within
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`the allotted time. If Interest is owed due to late payment under this Section, Interest shall accrue
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`from the date of lodging of this Consent Decree and continue to accrue through the date of full
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`payment. Payment of Interest shall be made in accordance with the instructions provided in the
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`Paragraphs 7 and 8 that correspond to the unpaid payment(s). Payment of Interest made under
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`this Paragraph shall be in addition to such other remedies or sanctions available to the Plaintiffs
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`for the Settling Defendant’s failure to make timely payments under this Consent Decree
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`including, but not limited to, payment of stipulated penalties pursuant to Section VII (Stipulated
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`Penalties).
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`VII.
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`STIPULATED PENALTIES
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`11.
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`The Settling Defendant shall pay stipulated penalties for failure to make any
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`payments in Section VI (Payments by the Settling Defendant) at the rate of five thousand dollars
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`($5,000) per Day for each Day of non-compliance.
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`a. Stipulated penalties shall begin to accrue on the day after payment is due and
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`continue to accrue until the date of payment.
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`b. Any stipulated penalties owed for late payment under Paragraph 7.b.ii or iii shall
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`be paid to the United States. Any stipulated penalties owed for late payment under
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`Paragraph 7.b.i shall be paid to the United States and the State in equally divided
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`portions. Any stipulated penalties owed for late payment under Paragraph 8 shall
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`be paid to the State.
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`c. The United States or the State may give the Settling Defendant written
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`notification that it has failed to make a required payment. Such notice shall
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`describe the noncompliance and make a demand for the payment of the stipulated
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`penalties. However, stipulated penalties shall accrue as provided in Paragraph
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`11.a regardless of whether the Settling Defendant has been notified of a violation.
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`The Settling Defendant shall pay stipulated penalties within thirty (30) Days of
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`written demand for such stipulated penalties by certified mail, as determined by
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`the date of mailing of the written demand.
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`d. If the Settling Defendant fails to pay stipulated penalties when due, the United
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`States and the State may institute proceedings to collect the stipulated penalties,
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`as well as Interest as provided in Paragraph 11.e below.
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`e. Interest on Stipulated Penalties. The Settling Defendant shall pay Interest on any
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`unpaid stipulated penalties due, which shall begin to accrue on the date thirty (30)
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`Days past the date of the written demand.
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`f. Notwithstanding any other provision of this Section, either the United States or
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`the State may, in the unreviewable exercise of its discretion, reduce or waive the
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`stipulated penalties otherwise due to it pursuant to this Consent Decree.
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`g. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in
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`any way limiting the ability of the United States and the State to seek any other
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`remedies or sanctions available by virtue of Settling Defendant’s violation of this
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`Consent Decree or of the statutes and regulations upon which it is based.
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`12.
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`Payment Instructions for Stipulated Penalties. Any stipulated penalty payment
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`shall be accompanied by a reference to this Consent Decree, be identified as “Stipulated
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`Penalties,” and reference the “CITGO Lake Charles Refinery Oil Spill Natural Resource
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`Damages Settlement.” Notice of payment of a stipulated penalty shall be made to the Trustees in
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`the manner specified in Section XII (Notice).
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`a. Stipulated penalty payments to the United States shall be made by FedWire
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`EFT to the U.S. Department of Justice in accordance with written instructions
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`to be provided to the Settling Defendant by the Financial Litigation Unit of
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`the U.S. Attorney’s Office for the Western District of Louisiana. At the time
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`of payment, the Settling Defendant shall send a copy of the EFT authorization
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`form and the EFT transaction record, together with a transmittal letter, which
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`shall state that the payment is for stipulated penalties owed pursuant to the
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`Consent Decree, and shall reference the case name, civil action number, DOJ
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`Number 90-5-1-1-09112/1, and the violations for which the stipulated
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`penalties are being paid to the United States, in accordance with Section XII
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`of this Decree (Notice).
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`b. Stipulated penalty payments to the State shall be made in accordance with
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`payment instructions provided to the Settling Defendant by LOSCO.
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`VIII. TRUSTEE-IMPLEMENTED NATURAL RESOURCE RESTORATION
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`13.
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`Upon receipt of the funds deposited pursuant to Paragraph 7.b.i, DOI will place
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`the funds in the DOI NRDAR Fund account known as the “CITGO Lake Charles Refinery Oil
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`Spill Restoration Account” to allow the funds to be maintained as a segregated account. All
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`funds deposited in the CITGO Lake Charles Refinery Oil Spill Restoration Account in
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`accordance with this Paragraph, including any Interest or return on investment thereon, shall be
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`held in the account solely for use by the Trustees to jointly plan, implement, and oversee
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`(including but not limited to drafting a Restoration Plan, providing opportunity for public
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`awareness and input, executing agreements for project implementation, conducting monitoring
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`activities, maintaining an administrative record, and administratively closing the case) the
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`restoration of injuries to Natural Resources resulting from the Incident. DOI shall, in accordance
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`with law, and for the benefit of the Trustees, manage and invest the joint funds in the account on
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`behalf of the Trustees.
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`14.
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`The Trustees commit to the expenditure of the funds set forth in Paragraphs 7.b.i
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`for the design, implementation, permitting (as necessary), monitoring, and oversight of
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`Restoration projects and for the costs of complying with the requirements of the law to conduct a
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`restoration planning and implementation process. The Trustees will use the funds to restore,
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`rehabilitate, replace, or acquire the equivalent of any Natural Resource and its services injured,
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`lost, or destroyed as a result of the Incident and for the oversight of these Restoration projects.
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`15.
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`The allocation of funds for specific projects or categories of projects will be
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`contained in a Restoration Plan prepared and implemented jointly by the Trustees, for which
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`public notice, opportunity for public input, and consideration of public comment will be
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`provided, as required under the OPA and the National Environmental Policy Act, 42 U.S.C.
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`§§ 4321 et seq. (“NEPA”). Once the public review process has been completed, the Trustees will
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`implement the Restoration Plan with any revisions the Trustees may deem appropriate after
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`considering any public comments. The Settling Defendant shall have no responsibility or liability
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`for implementation of the Restoration Plan, including any future project costs other than the
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`payments set forth in Section VI (Payments by the Settling Defendant) and subject to Paragraph
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`19.
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`16.
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`Decisions regarding any use or expenditure of funds under this Section shall be
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`made by the Trustees. The Settling Defendant shall not be entitled to dispute, in any forum or
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`proceeding, any decision relating to use of funds or Restoration efforts under this Section.
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`IX. COVENANTS BY THE PLAINTIFFS
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`17.
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`In consideration of the payments and actions that have been and will be made by
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`the Settling Defendant under this Consent Decree, the United States and the State covenant not
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`to sue or take administrative action against the Settling Defendant pursuant to Section 1002(a)
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`and (b) of OPA, 33 U.S.C. § 2702(a) and (b), and Section 2480 of OSPRA, La. R.S. 30:2480, for
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`Natural Resource Damages resulting from, arising out of, or related to the Incident. This
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`covenant not to sue is conditioned upon receipt by the United States and the State of all
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`payments required by Section VI (Payments by the Settling Defendant) and, as applicable,
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`Section VII (Stipulated Penalties) of this Consent Decree.
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`18.
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`Reservations of Rights. Notwithstanding any other provision of this Consent
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`Decree, the United States and the State reserve, and this Consent Decree is without prejudice to,
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`all rights against the Settling Defendant with respect to all matters other than those expressly
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`specified in the covenants not to sue set forth in Paragraph 17 of this Section, including, but not
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`limited to:
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`a. Claims against the Settling Defendant for its failure to meet a requirement of this
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`Consent Decree;
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`b. Claims against the Settling Defendant for Natural Resource Damages that are not
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`a result of the Incident;
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`c. Claims against the Settling Defendant for criminal liability associated with the
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`Incident;
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`d. Claims against the Settling Defendant for civil penalties and injunctive relief
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`under the Clean Water Act associated with the Incident;
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`e. Claims, other than claims for Natural Resource Damages related to the Incident,
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`against the Settling Defendant that the State, or the United States on behalf of the
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`United States Environmental Protection Agency and the United States Coast
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`Guard, may have under any applicable law, including for recovery of OPA
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`Removal Costs.
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`19.
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`Special Reservations Regarding Natural Resource Damages. Notwithstanding any
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`other provision of this Consent Decree, the United States and the State reserve the right to
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`institute proceedings against the Settling Defendant in this action or in a new action seeking
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`recovery of Natural Resource Damages based on:
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`a. conditions caused by the Incident, unknown by the Trustees as of the date of the
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`lodging of this Consent Decree, that cause new or additional injury to, destruction
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`of, loss of, or loss of use of such Natural Resources; or
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`b. information received by the Trustees after the date of lodging of this Consent
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`Decree indicating that the Incident has resulted in new or significant additional
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`injury to, destruction of, loss of, or loss of use of, such Natural Resources which
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`injury is of a type that was unknown or a magnitude greater than was known by
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`the Trustees as of the date of lodging of this Consent Decree.
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`c. For purposes of this Paragraph, conditions or information known or in receipt of
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`the Trustees shall consist of any information in the files of, or otherwise in the
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`possession of, any one of the Trustees, or their contractors, subcontractors, or
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`consultants who worked on the Trustees’ Natural Resource Damage Assessment
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`as of the Date of Lodging of this Consent Decree. Furthermore, an increase solely
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`in the Trustees’ assessment of a known injury to, destruction of, or loss of Natural
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`Resources related to the Incident due to advances in scientific understanding of
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`Natural Resources or changes to Trustee assessment methodologies shall not
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`constitute an unknown condition or new information.
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`20.
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`Pursuant to 33 U.S.C. § 2715(c), the United States expressly reserves, and the
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`Settling Defendant expressly acknowledges, the right of the United States to institute
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`proceedings, to take judgment thereon, and collect such judgment(s) thereon against the Settling
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`Defendant in this action, to seek and recover Removal Costs and/or Damages resulting from the
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`Incident based on claims submitted to or filed against the United States, including claims against
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`the Oil Spill Liability Trust Fund, after the date when this Decree is lodged with this Court. The
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`Settling Defendant reserves all defenses as to substantive claims pursued in any such proceeding.
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`21.
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`This Consent Decree shall not preclude the United States or the State from
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`instituting a separate or ancillary action to enforce the terms of this Consent Decree.
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`22.
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`Nothing in this Consent Decree shall be construed to create any rights in, or grant
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`any cause of action to, any person not a Party to this Consent Decree. In addition, nothing in this
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`Consent Decree shall limit, enlarge, or otherwise affect, the private rights or claims of any
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`person not a Party to this Consent Decree, except as may be determined otherwise by a court of
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`competent jurisdiction.
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`X.
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`COVENANTS BY THE SETTLING DEFENDANT
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`23.
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`The Settling Defendant hereby covenants not to sue and agrees not to assert any
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`claims or causes of action against the United States or the State, and their employees, agents,
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`contractors, departments, agencies, administrations and bureaus, related to Natural Resource
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`Damages arising from the Incident, including, without limitation, any potential or pending claims
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`against the Oil Spill Liability Trust Fund relating to the Incident. The Settling Defendant
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`reserves, and this Consent Decree is without prejudice to, all rights with respect to all matters not
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`expressly included within this Covenant Not to Sue, including all rights with respect to all
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`matters reserved in Sec