Free Decree - District Court of Arizona - Arizona

1 as developed pursuant to SOW Task 14.6.

2 94. Stipulated Penalty Amounts - Reports.
3 a. The following stipulated penalties shall accrue per violation per day for

4 any noncompliance identified in Paragraph 94.b:
5 Penalty Per Violation Per Day Period of Noncompliance

6 $1,000 1st through 14th day 7 $2,000 15th through 30th day
8 $4,000 31st day and beyond
9 b. Failure to submit the following reports in a timely or adequate manner as

10 set forth in Section XI (EP A Approval of Plans and Other Submissions) shall result in stipulated

11 penalties in the amounts set forth in Paragraph 94.a:
12 (1) Draft and Final Initial Groundwater Investigation Work Plan and
13 required updates (SOW Task 2.2);

14
15

(2) Groundwater Flow Model (SOW Task 2.5.1)
(3) Groundwater Contaminant Fate and Transport Model (SOW Task

16 17 18 19

2.5.2);
(4) Draft and Final Groundwater Investigation Report (SOW Task

2.7);
(5) Draft and Final Main Dryells Source Area Investigation Report

20
21

(SOW Task 5.7);
(6) Perchlorate Treatability Study Report (SOW Task 6.2);

22
23

(7) Soil Gas Investigation Work Plan (SOW Task 8.2);
(8) Draft and Final Soil Gas Investigation Report (SOW Task 8.4);

24
25

(9) Air Sampling Work Plan (SOW Task 9.1);
(10) Draft and Final Air Sampling Investigation Report (SOW Task

26
27

9.3);
(11) Draft and Final Site Evaluation Report (SOW Task 10.1);
(12) Source Areas, Soils, and Facility Structures Investigation Work
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1 Plan (SOW Task 10.2);
2 (13) Draft and Final Source Areas, Soils, and Facility Structures
3 Remedial Investigation Report (SOW Task 10.11);

4
5

(14) Baseline Human Health Risk Assessment Amendment (SOW Task

11.1);
(15) Screening Level Ecological Risk Assessment (SOW Task 11.2);
(16) Draft and Final Supplemental Feasibility Study Report(s) (SOW

6
7
8

Task 12.3);
(17) Remedial Design Work Planes) (SOW Task 13.2);
(18) Final Design Report (SOW Task 13.4);

9

10
11

(19) Remedial Action Work Plan (SOW Task 14.1);
(20) Final Remedial Action Construction Completion Report (SOW

12
13

Task 14.9); and
(21) Final Work Completion Report (SOW Task 14.10).

14

15 c. The following stipulated penalties shall accrue per violation per day for

16 failure to submit any other reports or written documents in a timely or adequate manner as set
17 forth in Section XI (EP A Approval of Plans and Other Submissions):
18 Penalty Per Violation Per Day Period of Noncompliance

19 $500 1st through 14th day
20 $1,000 15th through 30th day
21 $1,500 31st day and beyond
22 95. In the event that EP A assumes performance of a portion or all of the Work

23 pursuant to Paragraph 108 of Section XXII (Covenants Not to Sue by Plaintiff), Settling
24 Defendants shall be liable for a stipulated penalty in the amount of $800,000.00.
25 96. Supplemental Environmental Proiect Compliance. In the event that Settling

26 Defendants fail or are unable to comply with any of the terms or provisions of this Consent
27 Decree relating to the performance of the SEP described in Section XVII of

this Decree, and/or to

the extent that the actual expenditures of eligible SEP costs for the SEP do not equal or exceed
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1 the amounts required to be spent in Paragraph 59 and Appendix F, Settling Defendants shall be
2 liable for stipulated penalties according to the provisions set forth below:

3 a. If Settling Defendants satisfactorily complete the SEP, but Settling

4 Defendants spend less than $1,000,000 in total eligible SEP costs, Settling Defendants shall pay
5 as a stipulated penalty the difference between the amount Settling Defendants have expended and

6 $1,000,000.

7 b. If Settlng Defendants do not satisfactorily complete the SEP, but the

8 United States determines, upon a demonstration by Settling Defendants: (i) that Settling
9 Defendants have made good faith and timely efforts to complete the SEP; (ii) that Settling

10 Defendants were not responsible for their inability to satisfactorily complete the SEP; and (iii)

11 Settling Defendants spend less than $1,000,000 on the SEP, Settling Defendants shall pay as a
12 stipulated penalty the difference between the amount that Settling Defendants have expended and
13 $1,000,000. The United States wil consider Settling Defendants' timely payment of

fuds into

14 escrow as prescribed by Paragraph 62 in evaluating whether Settling Defendants have made good

15 faith and timely efforts to complete the SEP.
16 c. If Settling Defendants do not satisfactorily complete the SEP and cannot

17 demonstrate that they were not responsible for their inability to satisfactorily complete the SEP as

18 set forth in Paragraph 96.b above, Settling Defendants shall pay as a stipulated penalty the

19 difference between the amount that Settling Defendants have expended and $1,000,000, plus an
20 additional $200,000.
21 97. SEP Deliverables. For each failure to timely submit: (1) the SEP Agreement as

22 required pursuant to Paragraphs 61, 62, or 63, or (2) the SEP Completion Report as required by

23 Paragraph 71, Settling Defendants shall be liable for stipulated penalties in the amount of $750

24 for each day after the submission was originally due until the document is submitted.
25 98. All penalties shall begin to accrue on the day after the complete performance is

26 due or the day a violation occurs and shall continue to accrue through the final day of the
27 correction ofthe noncompliance or completion of

the activity. However, stipulated penalties

shall not accrue: (1) with respect to a deficient submission under Section XI (EPA Approval of
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1 Plans and Other Submissions) during the period, if any, beginning on the 31 st day after EP A's

2 receipt of such submission until the date that EP A notifies Settling Defendants of any deficiency;
3 (2) with respect to a decision by the Director of the Superfund Division, EP A Region IX, under

4 Paragraph 88.b or 89.a of Section XX (Dispute Resolution), during the period, if any, beginning
5 on the 21st day after the date that Settling Defendants' reply to EP A's Statement of

Position is

6 received until the date that the Director issues a final decision regarding such dispute; or (3) with
7 respect to judicial review by this Court of any dispute under Section XX (Dispute Resolution),
8 during the period, if any, beginning on the 31st day after the Cour's receipt of

the final

9 submission regarding the dispute until the date that the Court issues a final decision regarding

10 such dispute. Nothing herein shall prevent the simultaneous accrual of separate penalties for

11 separate violations of this Consent Decree.
12

99.

Following EP A's determination that Settling Defendants have failed to comply

13 with a requirement of

this Consent Decree, EPA may give Settling Defendants written

14 notification of

the same and describe the noncompliance. EPA may send the Settling Defendants

15 a written demand for the payment of the penalties. However, penalties shall accrue as provided
16 in the preceding Paragraph regardless of whether EP A has notified the Settling Defendants of a

17 violation.

18 100. All penalties accruing under this Section shall be due and payable to the United
19 States within 30 days of the Settling Defendants' receipt from EP A of a demand for payment of
20 the penalties, unless Settling Defendants invoke the Dispute Resolution procedures under Section

21 XX (Dispute Resolution). All payments to the United States under this Section shall be paid by
22 certified or cashier's check( s) made payable to "EP A Hazardous Substances Superfund," and
23 shall be mailed to:

24 EP A - Cincinnati Accounting Operations

25 P.O. Box 371099M Pittsburgh, PA 15251
26

Attention: Region 9 Receivables

27 Settling Defendants shall indicate that the payment is for stipulated penalties, and shall reference
the EP A Region and Site/Spil il #09R8, the DOl Case Number 90-11-2-248/1, and the name
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1 and address of

the party making payment. Copies of checkCs) paid pursuant to this Section, and

2 any accompanying transmittalletterCs), shall be sent to the United States and EP A as provided in
3 Section XXVII (Notices and Submissions).

4 101. The payment of penalties shall not alter in any way Settling Defendants'
5 obligation to complete the performance of the Work required under this Consent Decree.

6 102. Penalties shall continue to accrue as provided in Paragraph 98 during any dispute
7 resolution period, but need not be paid until the following:

8 a. If the dispute is resolved by agreement or by a decision of EP A that is not

9 appealed to this Court, accrued penalties determined to be owing shall be paid to EP A within 15
10 days of the agreement or the receipt of EP A's decision or order;
11 b. If

the dispute is appealed to this Court and the United States prevails in

12 whole or in part, Settling Defendants shall pay all accrued penalties determined by the Court to
13 be owed to EP A within 60 days of receipt of the Court's decision or order, except as provided in
14 Paragraph 102.c below;

15 c. If the District Court's decision is appealed by any Party, Settling

16 Defendants shall pay all accrued penalties determined by the District Court to be owing to the
17 United States into an interest-bearing escrow account within 60 days of receipt of

the Court's

18 decision or order. Penalties shall be paid into this account as they continue to accrue, at least
19 every 60 days. Within 15 days of receipt of the final appellate court decision, the escrow agent
20 shall pay the balance of the account to EP A or to Settling Defendants to the extent that either

21 prevails.

22 103. If Settling Defendants fail to pay stipulated penalties when due, the United States
23 may institute proceedings to collect the penalties, as well as Interest. Settling Defendants shall

24 pay Interest on the unpaid balance, which shall begin to accrue on the date of demand made

25 pursuant to Paragraph 100.
26 104. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in
27 any way limiting the ability of

the United States to seek any other remedies or sanctions available

by virtue of Settling Defendants' violation of this Consent Decree or of the statutes and
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1 regulations upon which it is based, including, but not limited to, penalties pursuant to Section

2 122(1) ofCERCLA, provided, however, that the United States shall not seek civil penalties
3 pursuant to Section 122(1) ofCERCLA for any violation for which a stipulated penalty is
4 provided herein, except in the case of a willful violation of the Consent Decree.
5 105. Notwithstanding any other provision of

this Section, the United States may, in its

6 unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
7 this Consent Decree.

8 XXII. COVENANTS NOT TO SUE BY PLAINTIFF
9 106. Covenants Not to Sue by Plaintiff. In consideration of

the actions that will be

10 performed and the payments that will be made by the Settling Defendants under the terms of the
11 Consent Decree, and except as specifically provided in Paragraph 107 of this Section, the United

12 States covenants not to sue or to take administrative action against Settling Defendants pursuant
13 to Sections 106 and 107(a) ofCERCLA for performance of the Work and for recovery of

Past

14 Response Costs and Future Response Costs. The United States also covenants not to sue or to
15 take administrative action against Settling Defendants' Related Persons pursuant to Sections 106
16 and 107(a) ofCERCLA for performance of the Work and forrecovery of

Past Response Costs

17 and Future Response Costs, but only to the extent that such persons are alleged to be responsible
18 persons at the Site solely due to their status as offcers, directors, or employees of Settling

19 Defendants, and subject to the limitations in Paragraphs 107 and 109. These covenants not to sue
20 shall take effect upon the receipt by EP A of the payments required by Paragraphs 54.a and 58 of

21 Section XVI (Payments for Response Costs and Civil Penalty). These covenants not to sue are
22 conditioned upon the satisfactory performance by Settling Defendants of their obligations under
23 this Consent Decree. These covenants not to sue extend only to the Settling Defendants, and to

24 the Settling Defendants' Related Persons to the limited extent described above, and do not extend

25 to any other person.

26 107. General reservations of rights. The United States reserves, and this Consent
27 Decree is without prejudice to, all rights against Settling Defendants and Settling Defendants'

Related Persons with respect to all matters not expressly included within Plaintiff s covenants
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1 not to sue in Paragraph 106 or the resolution ofliability in Paragraph 115. Notwithstanding any

2 other provision of this Consent Decree, the United States reserves all rights against Settling

3 Defendants and Settling Defendants' Related Persons with respect to:
4 a. claims based on a failure by Settling Defendants to meet a requirement of
5 this Consent Decree;

6 b. liability arising from the past, present, or future disposal, release, or threat
7 of release of Waste Material outside of the Site;
8 c. liability based upon the Settlng Defendants' ownership or operation of

the

9 Site, or upon the Settling Defendants' transportation, treatment, storage, or disposal, or the

10 arrangement for the transportation, treatment, storage, or disposal of Waste Material at or in

11 connection with the Site, other than as provided in the ROD and ESDs, the Work, or otherwise
12 ordered by EP A, after signature of this Consent Decree by the Settling Defendants;

13 d. liability for damages for injur to, destruction of, or loss of natural
14 resources, and for the costs of any natural resource damage assessments;
15 e. criminal

liability;

16 f. liability for violations of federal or state law which occur during or after

17 implementation of the Remedial Action;

18 g. liability for the final response action for the Site; and
19 h. liability for costs that the United States wil incur that are related to the
20 Site but are not within the definition of Future Response Costs.

21 108. Work Takeover.
22 a. In the event EP A determines that Settling Defendants have (i) ceased

23 implementation of any portion of the Work; (ii) are seriously or repeatedly deficient or late in
24 their performance of

the Work; or (iii) are implementing the Work in a manner which may cause

25 an endangerment to human health or the environment, EP A may issue a written notice ("Work

26 Takeover Notice") to the Settling Defendants. Any Work Takeover Notice issued by EP A will
27 specify the grounds upon which such notice was issued and will provide Settling Defendants a

period of 10 days within which to remedy the circumstances giving rise to EP A's issuance of
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1 such notice.

2 b. If, after expiration of the 1 O-day notice period specified in Paragraph

3 108.a, Settling Defendants have not remedied to EPA's satisfaction the circumstances giving rise
4 to EP A's issuance of

the relevant Work Takeover Notice, EP A may at any time thereafter assume

5 the performance of all or any portions of the Work as EP A deems necessary ("Work Takeover").

6 EP A shall notify Settling Defendants in writing (which wrting may be electronic) if EP A
7 determines that implementation of a Work Takeover is warranted under this Paragraph 108.b;
8 c. Settling Defendants may invoke the procedures set forth in Section XX
9 (Dispute Resolution), Paragraph 88, to dispute EP A's implementation of a Work Takeover under
10 Paragraph 108.b. However, notwithstanding Settling Defendants' invocation of

such dispute

11 resolution procedures, and during the pendency of any such dispute, EP A may in its sole
12 discretion commence and continue a Work Takeover under Paragraph 108.b until the earlier of

13 (i) the date that Settling Defendants remedy, to EP A's satisfaction, the circumstances giving rise
14 to EP A's issuance of

the relevant Work Takeover Notice or (ii) the date that a final decision is

15 rendered in accordance with Section XX (Dispute Resolution), Paragraph 88, requiring EPA to
16 terminate such Work Takeover.

17 d. After commencement and for the duration of any Work Takeover, EP A 18 shall have immediate access to and benefit of any financial security mechanism( s) provided
19 pursuant to Section xm of this Consent Decree, in accordance with the provisions of

Paragraph

20 48.b of that Section. If and to the extent that EP A is unable to secure the resources guaranteed

21 under any such financial security mechanism( s) and the Settling Defendant( s) fail to remit a cash

22 amount up to but not exceeding the estimated cost of the remaining Work to be performed, all in
23 accordance with the provisions of

Paragraph 48, any unreimbursed costs incurred by EP A in

24 performing Work under the Work Takeover shall be considered Future Response Costs that
25 Settling Defendants shall pay pursuant to Section XVI, Paragraph 55 (Payments for Future
26 Response Costs).

27 109. The covenant not to sue Settling Defendants' Related Persons in Paragraph 106

shall be null and void with respect to any such Person that sues or asserts any type of claim or
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cause of action against the United States described in Paragraph 111.
2 110. Notwithstanding any other provision of

this Consent Decree, the United States
and all response actions authorized by law.

3 retains all authority and reserves all rights to take any

4 XXiD. COVENANTS BY SETTLING DEFENDANTS
5 111. Covenant Not to Sue. Subject to the reservations in Paragraph 112, Settling

6 Defendants hereby covenant not to sue and agree not to assert any claims or causes of action
7 against the United States with respect to the Work, past response actions, and Past and Future

8 Response Costs as defined herein or this Consent Decree, including, but not limited to:
9 a. any direct or indirect claim for reimbursement from the Hazardous

10 Substance Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507)
11 through CERCLA Sections 1 06(b )(2), 107, 111, 112, 113, or any other provision of law;
12 b. any claims against the United States, including any department, agency, or

13 instrumentality of the United States under CERCLA Sections 107 or 113 related to the Site;
14 c. any claims arising out of

response actions at or in connection with the Site,

15 including any claim under the United States Constitution, the Tucker Act, 28 U.S.C. § 1491, the
16 Equal Access to Justice Act, 28 U.S.c. § 2412, as amended, or at common law; or
17 d. any direct or indirect claim for disbursement from the PGA-North Special
18 Account.
19 Except as provided in Paragraph 114 (Waiver of

Claims Against De Micromis Parties)

20 and Paragraph 120 (waiver of claim-splitting defenses), these covenants not to sue shall not apply

21 in the event that the United States brings a cause of action or issues an order pursuant to the
22 reservations set forth in Paragraphs 107.b - .d or 107.g - .h, but only to the extent that Settling

23 Defendants' claims arse from the same response action, response costs, or damages that the 24 United States is seeking pursuant to the applicable reservation.
25 112. The Settling Defendants reserve, and this Consent Decree is without prejudice to:
26 a. Claims against the United States, subject to the provisions of

Chapter 171
property or

27 of

Title 28 of

the United States Code, for money damages for injury or loss of

personal injury or death caused by the negligent or wrongful act or omission of any employee of
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1 the United States while acting within the scope of

his offce or employment under circumstances

2 where the United States, if a private person, would be liable to the claimant in accordance with
3 the law ofthe place where the act or omission occurred. However, any such claim shall not

4 include a claim for any damages caused, in whole or in part, by the act or omission of any person,

5 including any contractor, who is not a federal employee as that term is defined in 28 U.S.c.
6 § 2671; nor shall any such claim include a claim based on EP A's selection of response actions or
7 the oversight or approval of

the Settling Defendants' plans or activities. The foregoing applies

8 only to claims which are brought pursuant to any statute other than CERCLA and for which the

9 waiver of sovereign immunity is found in a statute other than CERCLA.
10 b. Claims alleged by the Settling Defendants in Counts 1 and 2 of

their

11 complaint fied on November 13, 2003, and in Counts 1 and 2 oftheir counterclaim filed on
12 September 13, 2004, against the United States and related parties in the pending action in the

13 United States District Court for the District of Arzona, captioned Crane Co. et al. v. United
14 States et al., CIV 03-2226-PHX-ROS, CIV 04-1400-PHX-ROS (Consolidated), or other claims

15 for the recovery of costs of investigating and remediating environmental contamination at the
16 Site arising out of the same transactions or occurrences that form the subj ect matter of Settling
17 Defendants' pending claims; provided, however, that nothing in this Paragraph shall alter or limit

18 the United States' procedural or substantive rights or defenses with respect to any such claims.

19 113. Nothing in this Consent Decree shall be deemed to constitute preauthorization of
20 a claim within the meaning of

Section 111 ofCERCLA, 42 U.S.c. § 9611, or 40 C.F.R.

21 § 300.700(d).
22 114. Waiver of Claims Against De Micromis Parties. Settling Defendants agree not to

23 assert any claims and to waive all claims or causes of action that they may have for all matters

24 relating to the Site, including for contribution, against any person where the person's liability to
25 Settling Defendants with respect to the Site is based solely on having arranged for disposal or
26 treatment, or for transport for disposal or treatment, of

hazardous substances at the Site, or
hazardous substances at the Site, if:

27 having accepted for transport for disposal or treatment of

a. the materials contributed by such person to the Site containing hazardous
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1 substances did not exceed the greater of (i) 0.002% of the total volume of waste at the Site, or
2 (ii) 110 gallons of liquid materials or 200 pounds of solid materials.

3 b. This waiver shall not apply to any claim or cause of action against any

4 person meeting the above criteria ifEP A has determined that the materials contributed to the Site

5 by such person contributed or could contribute significantly to the costs of response at the Site.

6 This waiver also shall not apply with respect to any defense, claim, or cause of action that
7 Settling Defendants may have against any person if such person asserts a claim or cause of action
8 relating to the Site against Settling Defendants.

9 XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
10 115. Upon the Effective Date, this Consent Decree shall resolve the United States'
11 claims pursuant to Section 1 06(b) of CERCLA, 42 U.S.C. § 9606(b), to obtain penalties for
12 failure to comply with the terms of

the UAOs (EPA Docket Nos. 90-20 and 9-2003-1), and

13 pursuant to Section 107(c)(3) ofCERCLA, 42 U.S.C. § 9607(c)(3), to obtain punitive damages
14 for failure to comply with the terms of

the UAOs (EPA Docket Nos. 90-20 and 9-2003-1), as

15 alleged in the Complaint fied in this matter.
16 116. Except as provided in Paragraph 114 (Waiver of

Claims Against De Micromis

17 Parties), nothing in this Consent Decree shall be construed to create any rights in, or grant any

18 cause of action to, any person not a Party to this Consent Decree. The preceding sentence shall
19 not be construed to waive or nullify any rights that any person not a signatory to this decree may
20 have under applicable law. Except as provided in Paragraph 114 (Waiver of

Claims Against De

21 Micromis Paries), each of the Parties expressly reserves any and all rights (including, but not
22 limited to, any right to contribution), defenses, claims, demands, and causes of action which each
23 Party may have with respect to any matter, transaction, or occurrence relating in any way to the

24 Site against any person not a Party hereto.

25 117. Contribution Protection.
26 a. Except as set forth Paragraph 117.b, below, the Parties agree, and by

27 entering this Consent Decree this Court finds, that the Settling Defendants, and Settling

Defendants' Related Persons to the extent that such persons are alleged to be responsible persons
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1 at the Site solely due to their status as officers, directors, or employees of Settling Defendants,
2 are entitled, as of the Effective Date, to protection from contrbution actions or claims as

3 provided by CERCLA Section 113(f)(2), 42 US.c. § 9613(f)(2), for matters addressed in this
4 Consent Decree. Matters addressed in this Consent Decree are the Work to be performed
5 pursuant to the terms of

this Consent Decree and EPA's Past Response Costs and Future

6 Response Costs.

7 b. This Consent Decree, including Paragraph lI7.a, shall not affect the

8 United States' ability to assert any defense in or relating to Settling Defendants' pending action
9 against the United States in the United States District Court for the District of Arzona, captioned

10 Crane Co. et al. v. United States et al., CIV 03-2226-PHX-ROS, CIV 04-1400-PHX-ROS

11 (Consolidated).

12 118. The Settling Defendants agree that with respect to any suit or claim for
13 contribution brought by them for matters related to this Consent Decree they wil notify the

14 United States in writing no later than 60 days prior to the initiation of such suit or claim.

15 119. The Settling Defendants also agree that with respect to any suit or claim for
16 contribution brought against them for matters related to this Consent Decree they will notify the

17 United States in writing within 10 days of service of the complaint on them. In addition, Settling
18 Defendants shall notify the United States within 10 days of service or receipt of any Motion for
19 Summary Judgment and within 10 days of

receipt of any order from a court setting a case for

20 triaL.
21 120. In any subsequent administrative or judicial proceeding initiated by the United
22 States for injunctive relief, recovery of response costs, or other appropriate relief

relating to the

23 Site, Settling Defendants shall not assert, and may not maintain, any defense or claim based upon
24 the principles of

waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or

25 other defenses based upon any contention that the claims raised by the United States in the
26 subsequent proceeding were or should have been brought in the instant case; provided, however,

27 that nothing in this Paragraph affects the enforceability of the covenants not to sue set forth in
Section XXII (Covenants Not to Sue by Plaintiff).
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1 121. Upon the Effective Date, this Consent Decree supersedes and extinguishes the
2 obligations imposed on Settling Defendant Unidynamics/Phoenix, Inc. under the terms of

the

3 UAOs (EPA Docket Nos. 90-20 and 9-2003-1), and resolves the United States' claims alleged in
4 the Complaint in this matter related to the UAOs as set forth in Sections XXII (Covenants Not to

5 Sue by Plaintiff) and XXIV (Effect of Settlement; Contribution Protection).

6 XXV. ACCESS TO INFORMATION
7 122. Except as otherwise provided in Paragraph 123, Settling Defendants shall provide
8 to EP A, upon request, copies of all documents and information within their possession or control

9 or that of their contractors or agents relating to activities at the Site or to the implementation of

10 this Consent Decree, including, but not limited to, sampling, analysis, chain of custody records,
11 manifests, trucking logs, receipts, reports, sample traffic routing, correspondence, or other

12 documents or information related to the Work. Settling Defendants shall also make available to
13 EP A, for purposes of investigation, information gathering, or testimony, their employees, agents,
14 or representatives with knowledge of

relevant facts concerning the performance ofthe Work.

15 123. Business Confidential and Privileged Documents.

16 a. Settling Defendants may assert business confidentiality claims covering
17 part or all of the documents or information submitted to Plaintiff

under this Consent Decree to

18 the extent permitted by and in accordance with Section 104(e)(7) ofCERCLA, 42 U.S.C.

19 § 9604(e)(7) and 40 C.F.R. § 2.203(b). Documents or information determined to be confidential

20 by EP A will be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of

21 confidentiality accompanies documents or information when they are submitted to EP A, or if
22 EP A has notified Settling Defendants that the documents or information are not confidential
23 under the standards of

Section 104(e)(7) ofCERCLA or 40 C.F.R. Part 2, Subpart B, the public

24 may be given access to such documents or information in accordance with the procedures of 40

25 C.F.R. § 2.205.
26 b. The Settling Defendants may assert that certain documents, records, and

27 other information are privileged under the attorney-client privilege or any other privilege
recognized by federal law. If the Settling Defendants assert such a privilege in lieu of

providing

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1 documents, they shall provide the Plaintiff

with the following: (1) the title of

the document,

2 record, or information; (2) the date of

the document, record, or information; (3) the name and

3 title of the author of the document, record, or information; (4) the name and title of each
4 addressee and recipient; (5) a description of the contents of

the document, record, or information:

5 and (6) the privilege asserted by Settling Defendants. However, no documents, reports or other
6 information created or generated pursuant to the requirements of the Consent Decree shall be

7 withheld on the grounds that they are privileged.

8 124. No claim of confidentiality shall be made with respect to any data, including, but
9 not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or

10 engineering data, or any other documents or information evidencing conditions at or around the

11 Site.

12 XXVI. RETENTION OF RECORDS
13 125. Until 10 years after the Settling Defendants' receipt of EP A's notification pursuant
14 to Paragraph 51.b of Section XIV (Certification of Completion of

the Work), each Settling
records and documents (including

15 Defendant shall preserve and retain all non-identical copies of

16 records or documents in electronic form) now in its possession or control or which come into its 17 possession or control that relate in any manner to its liability under CERCLA with respect to the

18 Site, including all documents and records that relate to the liability of any other person under

19 CERCLA with respect to the Site. Settling Defendants must also retain, and instruct their
20 contractors and agents to preserve, for the same period of

time specified above all non-identical

21 copies of the last draft or final version of any documents or records (including documents or

22 records in electronic form) now in their possession or control or which come into their
23 possession or control that relate in any manner to the performance of the Work, provided,
24 however, that Settling Defendants (and their contractors and agents) must retain, in addition,

25 copies of all data generated during the performance of the Work and not contained in the
26 aforementioned documents required to be retained. Each of

the above record retention

27 requirements shall apply regardless of any corporate retention policy to the contrar.
126. At the conclusion of

this document retention period, Settling Defendants shall
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1 notify the United States at least 90 days prior to the destruction of any such records or

2 documents, and, upon request by the United States, Settling Defendants shall deliver any such
3 records or documents to EP A. The Settling Defendants may assert that certain documents,
4 records and other information are privileged under the attorney-client privilege or any other
5 privilege recognized by federal

law. Ifthe Settlng Defendants assert such a privilege, they shall
the document, record, or information;

6 provide the Plaintiffs with the following: (1) the title of

7 (2) the date ofthe document, record, or information; (3) the name and title of

the author ofthe

8 document, record, or information; (4) the name and title of each addressee and recipient; (5) a
9 description of the subject of

the document, record, or information; and (6) the privilege asserted

10 by Settling Defendants. However, no documents, reports or other information created or
11 generated pursuant to the requirements of the Consent Decree shall be withheld on the grounds
12 that they are privileged.
13 127. Each Settling Defendant hereby certifies individually that, to the best of

its

14 knowledge and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed,

15 or otherwise disposed of any records, documents, or other information (other than identical
16 copies) relating to its potential liability regarding the Site since notification of potential

liability

17 by the United States or the State or the fiing of suit against it regarding the Site and that it has
18 fully complied with any and all EP A requests for information pursuant to Sections 1 04( e) and

19 122(e) ofCERCLA, 42 US.c. 9604(e) and 9622(e), and Section 3007 ofRCRA, 42 US.c.
20 6927.

21 XXVII. NOTICES AND SUBMISSIONS
22 128. Whenever, under the terms of

this Consent Decree, written notice is required to be

23 given or a report or other document is required to be sent by one Party to another, it shall be

24 directed to the individuals at the addresses specified below, unless those individuals or their
25 successors give notice of a change to the other Parties in writing. All notices and submissions

26 shall be considered effective upon receipt, unless otherwise provided. Written notice as specified
27 herein shall constitute complete satisfaction of any written notice requirement of the Consent

Decree with respect to the United States, EP A, the State, and the Settling Defendants,
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1

respectively.

2
3

As to the United States:

Chief, Environmental Enforcement Section Environment and Natural Resources Division

US. Deparment of Justice
P.O. Box 7611 Washington, D.C. 20044-7611
Re: DJ # 90-11-2-248/1

4
5

6 7
8

9

Keith Takata Director, Superfund Division United States Environmental Protection Agency Region IX - SFD-1 75 Hawthorne Street San Francisco, CA 94105 Re: PGA-North Superfund Site
As to EPA:

10
11

Mary Aycock
EP A Proj ect Coordinator

12
13

14
15

United States Environmental Protection Agency Region IX - SFD-8-2 75 Hawthorne Street San Francisco, CA 94105 Re: PGA-North Superfund Site

Bethany Dreyfs
16
17 18

19

Assistant Regional Counsel United States Environmental Protection Agency Region IX - ORC-3 75 Hawthorne Street San Francisco, CA 94105 Re: PGA-North Superfund Site

20
21

As to the Regional Financial Management Offcer:
David Wood, PMD-6

22
23

24
25

Superfund Accounting Program Policy and Management Division United States Environmental Protection Agency Region IX - PMD-6 75 Hawthorne Street San Francisco, CA 94105 Re: PGA-North Superfud Site

26 27

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1

As to the State:

Cathy 0' Connell
Senior Remedial Projects Manager

2
3

Waste Programs Division
Arzona Department of Environmental Quality

4
5

1110 W. Washington Street Phoenix, AZ 85007

As to the Settling Defendants:

6
7
8

Anthony D. Pantaleoni Vice President of Environment, Health & Safety
Crane Co.

100 First Stamford Place Stamford, CT 06902
DATE

9
XXViD. EFFECTIVE

10
129. The effective date of

this Consent Decree shall be the date upon which this

11

Consent Decree is entered by the Cour, except as otherwise provided herein.
XXIX. RETENTION OF JURISDICTION
130. This Court retains jurisdiction over both the subject matter of

12
13

this Consent Decree

14
15

and the Settling Defendants for the duration of the performance of the terms and provisions of
this Consent Decree for the purpose of enabling any of the Parties to apply to the Court at any
time for such further order, direction, and relief as may be necessary or appropriate for the

16
17 18 19

construction or modification of this Consent Decree, or to effectuate or enforce compliance with
its terms, or to resolve disputes in accordance with Section XX (Dispute Resolution) hereof.
XXX. APPENDICES

20
21

131. The following appendices are attached to and incorporated into this Consent
Decree:

22
23

"Appendix A" is the ROD.

"Appendix B" is the 1993 and 2003 ESDs.
"Appendix C" is the SOW.
"Appendix D" is the map showing the location of

24
25

the Unidynamics Property.

26
"Appendix E" is the draft Easement and Declaration of

Restrictive Covenants.

27

"Appendix F" is the description of the Brownfields Inventory, Assessment, and

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1 Remediation SEP.

2 "Appendix G" is the list of requirements for compliance with the financial assurance
3 option set forth in Paragraph 47.f of this Consent Decree.

4 "Appendix H" is the property description for Parcels Band C, along with a map showing
5 the parcels.

6 XXI. COMMUITY RELATIONS
7 132. Settling Defendants shall propose to EP A and the State their participation inthe
8 community relations plan to be developed by EP A. EP A will determine the appropriate role for
9 the Settling Defendants under the Plan. Settling Defendants shall also cooperate with EP A and

10 the State in providing information regarding the Work to the public. As requested by EP A or the
11 State, Settling Defendants shall participate in the preparation of such information for
12 dissemination to the public and in public meetings which may be held or sponsored by EP A or

13 the State to explain activities at or relating to the Site.

14 XXII. MODIFICATION
15 133. Schedules specified in this Consent Decree for completion ofthe Work maybe

16 modified by agreement of EP A and the Settling Defendants. All such modifications shall be
17 made in writing.
18 134. Except as provided in Paragraph 14 (Modification ofthe SOW or Related Work

19 Plans), no material modifications shall be made to the SOW without written notification to and
20 written approval of

the United States, Settling Defendants, and the Court, if such modifications

21 fundamentally alter the basic features of the selected remedy within the meaning of 40 C.F .R.
22 § 300.435( c )(2)(B)(ii). Prior to providing its approval to any modification, the United States wil

23 provide the State with a reasonable opportunity to review and comment on the proposed

24 modification. Modifications to the SOW that do not materially alter that document, or material

25 modifications to the SOW that do not fudamentally alter the basic features ofthe selected
26 remedy within the meaning of 40 C.F.R. § 300.435(c)(2)(B)(ii), may be made by written
27 agreement between EP A, after providing the State with a reasonable opportunity to review and

comment on the proposed modification, and the Settling Defendants.
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1 135. Nothing in this Decree shall be deemed to alter the Court's power to enforce,
2 supervise, or approve modifications to this Consent Decree.

3 XXXiD. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
4 136. This Consent Decree shall be lodged with the Court for a period of

not less than

5 thirty (30) days for public notice and comment in accordance with Section 122( d)(2) of

6 CERCLA, 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to
7 withdraw or withhold its consent if

the comments regarding the Consent Decree disclose facts or

8 considerations which indicate that the Consent Decree is inappropriate, improper, or inadequate.

9 Settling Defendants consent to the entry of this Consent Decree without further notice.

10 137. If for any reason the Court should decline to approve this Consent Decree in the
11 form presented, this agreement is voidable at the sole discretion of any Party and the terms of

the

12 agreement may not be used as evidence in any litigation between the Parties.

13 XXIV. SIGNATORIES/SERVICE
14 138. Each undersigned representative of a Settling Defendant to this Consent Decree
15 and the Assistant Attorney General for the Environment and Natural Resources Division of

the

16 Department of Justice certifies that he or she is fully authorized to enter into the terms and

17 conditions of this Consent Decree and to execute and legally bind such Party to this document.
18 139. Each Settling Defendant hereby agrees not to oppose entry of

this Consent Decree

19 by this Court or to challenge any provision of this Consent Decree unless the United States has

20 notified the Settling Defendants in writing that it no longer supports entry of the Consent Decree.

21 140. Each Settling Defendant shall identify, on the attached signature page, the name,
22 address and telephone number of an agent who is authorized to accept service of process by mail
23 on behalf of

that Party with respect to all matters arsing under or relating to this Consent Decree.

24 Each Settling Defendant hereby agrees to accept service in that manner and to waive the formal

25 service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any
26 applicable local rules of

this Court, including, but not limited to, service of a summons.

27

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1

xxv. FINAL

JUDGMENT

2 141. This Consent Decree and its appendices constitute the final, complete, and

3 exclusive agreement and understanding among the parties with respect to the settlement

4 embodied in the Consent Decree. The parties acknowledge that there are no representations,
5 agreements or understandings relating to the settlement other than those expressly contained in
6 this Consent Decree.
7 142. Upon approval and entry of

this Consent Decree by the Court, this Consent

8 Decree shall constitute a final judgment between and among the United States and the Settling

9 Defendants. The Court finds that there is no just reason for delay and therefore enters this

10 judgment as a final judgment under Fed. R. Civ. P. 54 and 58.
11

12
13

SO ORDERED THIS

DAY OF

,20_.

14
15

ROSL YN O. SILVER United States District Judge

16 17 18

19

20
21

22
23

24
25

26

27

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THE UNERSIGNED PARTY enters into this Consent Decree in the matter of Crane Co. et al. v.
United States et al., CN 03-2226-PHX-ROS and CN 04-1400-PHX-ROS (Consolidated), relating to the
2
3

Phoenix-Goodyear Airport (North) Superfund Site.

4
5
H ó: v- coOL..

6 7
8

.2 7

Date

)

;;0 0 (,

9 10
11

:3

6i~~~ i

i

;;oob

/~d¿rf~ ~~~
ANN C. HUEY

FOR THE UNTED STATES OF AMERICA

Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice Washington, D.C. 20530

12
13

Environmental EnfoF ement Section Environment and N~tural Resources Division US. Department of Justice 401 Howard Street, Suite 1050 San Francisco, CA 94105

14
15

16 17 18 19

20
21

22
23

24
25

26 27

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1

2
3

THE UNDERSIGNED P ARTY enters into this Consent Decree in the matter of Crane Co. et al. v. United States et al., CIV 03-2226-PHX-ROS and CN 04-1400-PHX-ROS (Consolidated), relating to the Phoenix-Goodyear Airport (North) Superfund Site.

FOR THE UNITED STATES OF AMERICA

4
5

6
7
8

1-n~H Db
Date

~~

/ PAULK. CHARLTON
United States Attorney District of Arizona

9
10
11

12
13

14
15

16

17
18

19

20
21

22
23

24
25

26 27

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1 THE UNERSIGNED PARTY enters into this Consent Decree in the matter of

Crane Co. et ai. v.

United States et aI., CN 03-2226-PHX-ROS and CN 04-1400-PHX-ROS (Consolidated), relating to the 2 Phoenix-Goodyear Airport (North) Superfnd Site.
3

4
5

~
'f /9-hrr ,

HTAU A
Superfnd Divi ion Director
U.S. Enviromnental Protection Agency

6
7
8

Region IX 75 Hawthorne Street San Francisco, CA 94105-3901

9

10 Date
11

BETHANY A. YFS /1
Region IX 75 Hawthorne Street San Francisco, CA 94105-3901

~aLL

Assistant RegÍonal Counsel U.S. Environmental Protection Agency

12
13

14
15

16
17
18

19

20
21

22
23

24
25

26
27

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HE UNERSIGNED PARTY enters into this Consent Decree in the matter of Crane Co. et ai. v.
United

2 hoenix-Goodyear Airport (North) Superfund Site.
3

States et aI., CN 03-2226-PHX-ROS and CIV 04-1400-PHX-ROS (Consolidated), relating to the

4
5

FOR CRA CO.

6 7
8

#

AUG TUS i. duPONT
Crane Co.

Vice President, General Counsel and Secretary
100 First Stamford Place Stamford, CT 06902

~'q~

9
10
11

gent Authorized to Accept Service on Behalf of Above-signed Party:

12
13

ROGER K. FERLAN
Quarles & Brady Streich Lang, LLP One Renaissance Square Two North Central A venue Phoenix, AZ 85004-2391 Tel: (602) 229-5607

14
15

16

Attorney for Crane Co.
17
18

19

20
21

22
23

24
25

26
27

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1 HE UNERSIGNED PARTY enters into this Consent Decree in the matter of Crane Co. et ai. v. United States et al., CN 03-2226-PHX-ROS and CN 04-1400-PHX-ROS (Consolidated), relating to the
2 hoenix-Goodyear Airport (North) Superfud Site.
3

4
5

FOR UNYNAMICS/PHOENI, INC.

6
7
8

ANTHONY D. PANTALEONI Vice President of Environment, Health & Safety
Crane Co.

fr:-. ~

9 10
11

100 First Stamford Place Stamford, CT 06902
gent Authorized to Accept Service on Behalf of Above-signed Par:

12
13

14
15

ROGER K. FERLAN
Quarles & Brady Streich Lang, LLP One Renaissance Square Two North Central Avenue Phoenix, AZ 85004-2391 Tel: (602) 229-5607

16
17

18 19

Attorney for Unidynamics/Phoenix, Inc.

20
21

22
23

24
25

26
27

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