Free Decree - District Court of Arizona - Arizona

1 States may, as it deems appropriate, assist Settling Defendants in obtaining access or land/water 2 use restrictions, either in the form of contractual agreements or in the form of easements running

3 with the land, or in obtaining the release or subordination of a prior lien or encumbrance.
4 Settling Defendants shall reimburse the United States in accordance with the procedures in

5 Section XVI (Payments for Response Costs and Civil Penalty), for all costs incurred, direct or
6 indirect, by the United States in obtaining such access, land/water use restrictions, and/or the

7 release/subordination of prior liens or encumbrances including, but not limited to, the cost of
8 attorney time and the amount of monetary consideration paid or just compensation.

9 29. If EP A determines that land/water use restrictions in the form of state or local

10 laws, regulations, ordinances, or other governental controls are needed to implement the
11 remedy selected in the ROD and the ESDs, ensure the integrty and protectiveness thereof, or
12 ensure non-interference therewith, Settling Defendants shall cooperate with EP A's efforts to

13 secure such governental controls.
14 30. With respect to the Site, any portion of

the Site, or any other property that is

15 subject to a use restriction or an Easement imposed solely pursuant to this Section IX (and not

16 independently required by or incorporated in any ROD, amended ROD, or ESD for the Site),
17 Settling Defendants or any other owner of the Site may request in writing that EP A rescind the

18 use restrction or abandon or modify the Easement. Any such request shall include an
19 explanation of

why maintenance ofthe use restriction or Easement is (1) no longer necessary to

20 prevent interference with the implementation, integrty, monitoring, or protectiveness of the

21 remedial measures required by the ROD and the ESDs or any future response actions required by
22 EP A, and (2) no longer necessar to protect human health or the environment, and all

23 information supporting this explanation. EP A, in its sole discretion, will either accept or deny
24 the request based on a review of the information submitted and other relevant information. The

25 requesting pary shall not have the right to challenge or to seek judicial review of, either through
26 the Dispute Resolution provisions of

the Consent Decree or otherwise, EPA's determination with

27 respect to the request. If EP A accepts the request, EP A shall provide written authorization to

implement the rescission, modification, or abandonment and shall provide such additional
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1 assistance as is necessary. If EP A denies a request to rescind a use restriction or abandon an

2 Easement, EP A shall provide a written statement of reasons for the deniaL.
3 31. Notwithstanding any provision of this Consent Decree, the United States retains
4 all of its access authorities and rights, as well as all of

its rights to require land/water use

5 restrictions, including enforcement authorities related thereto, under CERCLA, RCRA, and any
6 other applicable statute or regulations.

7 X. REpORTING REOUIREMENTS
8 32. a. In addition to any other requirement of

this Consent Decree, Settling
written monthly progress

9 Defendants shall submit to EP A and the State three (3) copies of

10 reports that: (a) describe the actions which have been taken toward achieving compliance with

11 this Consent Decree during the previous month; (b) include a sumary of all results of sampling
12 and tests and all other data received or generated by Settling Defendants or their contractors or
13 agents in the previous month; (c) identify all work plans, plans, and other deliverables required

14 by this Consent Decree completed and submitted during the previous month; (d) describe all
15 actions, including, but not limited to, data collection and implementation of

work plans, which

16 are scheduled for the next six weeks and provide other information relating to the progress of

17 construction, including, but not limited to, critical path diagrams, Gantt charts, and Pert charts;
18 ( e) include information regarding percentage of completion, unresolved delays encountered or

19 anticipated that may affect the future schedule for implementation of the Work, and a description

20 of efforts made to mitigate those delays or anticipated delays; (f) include any modifications to the
21 work plans or other schedules that Settling Defendants have proposed to EP A or that have been
22 approved by EP A; (g) describe all activities undertaken in support of the Community Relations

23 Plan during the previous month and those to be undertaken in the next six weeks; and (h)
24 describe Settling Defendants' progress in satisfying their obligations in connection with the
25 supplemental environmental project ("SEP") under Section xvn (Supplemental Environmental
26 Project) of

this Consent Decree, including, at a minimum, a narrative description of activities

27 undertaken and compliance with the schedules or milestones set forth in Appendix F to this

Consent Decree. Settling Defendants shall submit these progress reports to EP A and the State by
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1 the tenth day of every month following the lodging of this Consent Decree until EP A provides

2 notice to the Setting Defendants pursuant to Paragraph 51.b of Section XIV (Certification of

3 Completion) or until EP A notifies Settling Defendants in writing that less frequent reporting is
4 required. If requested by EP A, Settling Defendants shall also provide briefings for EP A to
5 discuss the progress of

the Work.

6 33. The Settlng Defendants shall notify EP A of any change in the schedule described

7 in the monthly progress report for the performance of any activity, including, but not limited to,
8 data collection and implementation of

work plans, no later than fifteen days prior to the

9 performance of

the activity.

10 34. Upon the occurrence of any event during performance of the Work that Settling
11 Defendants are required to report pursuant to Section 103 ofCERCLA or Section 304 of

the

12 Emergency Planing and Community Right-to-Know Act (EPCRA), Settling Defendants shall

13 within 24 hours of the onset of such event orally notify the EP A Proj ect Coordinator or the
14 Alternate EPA Project Coordinator (in the event of the unavailability of

the EPA Project

15 Coordinator), or, in the event that neither the EPA Project Coordinator or Alternate EPA Project
16 Coordinator is available, the Emergency Response Unit, Region IX, United States Environmental

17 Protection Agency. These reporting requirements are in addition to the reporting required by

18 CERCLA Section 103 or EPCRA Section 304.
19 35. Within 7 days of the onset of

such an event, Settling Defendants shall furnish to

20 Plaintiff a written report, signed by the Settling Defendants' Project Coordinator, setting forth the

21 events which occurred and the measures taken, and to be taken, in response thereto. Within 30
22 days of the conclusion of such an event, Settling Defendants shall submit a report setting forth all

23 actions taken in response thereto.
24 36. Settling Defendants shall submit three (3) copies of all plans, reports, and data
25 required by the SOW or any other approved plans to EP A in accordance with the schedules set
26 forth in such plans. Settling Defendants shall simultaneously submit three (3) copies of all such

27 plans, reports, and data to the State. Upon request by EP A, Settling Defendants shall submit in

electronic form all portions of any report or other deliverable Settling Defendants are required to
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1 submit pursuant to the provisions of this Consent Decree.
2 37. All reports and other documents submitted by Settling Defendants to EPA (other
3 than the monthly progress reports referred to above) which purport to document Settling
4 Defendants' compliance with the terms of

this Consent Decree shall be signed by an authorized

5 representative of

the Settling Defendants.

6 XI. EP A APPROVAL OF PLANS AND OTHER SUBMISSIONS
7 38. After review of any plan, report, or other item which is required to be submitted
8 for approval pursuant to this Consent Decree and/or the SOW, EP A, after reasonable opportunity

9 for review and comment by the State, shall: (a) approve, in whole or in part, the submission;
10 (b) approve the submission upon specified conditions; (c) modify the submission to cure the
11 deficiencies; (d) disapprove, in whole or in part, the submission, directing that the Settling
12 Defendants modify the submission; or (e) any combination of

the above. However, EPA shall

13 not modify a submission without first providing Settling Defendants at least one notice of
14 deficiency and an opportunity to cure within 30 days, except where EP A determines that to do so

15 would cause serious disruption to the Work or where previous submission(s) have been
16 disapproved due to material defects and the deficiencies in the submission under consideration

17 indicate a bad faith lack of effort to submit an acceptable deliverable.
18 39. In the event of approval, approval upon conditions, or modification by EP A,
19 pursuant to Paragraph 38(a), (b), or (c), Settling Defendants shall proceed to take any

action

20 required by the plan, report, or other item, as approved or modified by EP A subject only to their

21 right to invoke the Dispute Resolution procedures set forth in Section XX (Dispute Resolution)
22 with respect to the modifications or conditions made by EP A. In the event that EP A modifies the

23 submission to cure the deficiencies pursuant to Paragraph 38(c) and the submission has a
24 material defect, EP A retains its right to seek stipulated penalties, as provided in Section XXI

25 (Stipulated Penalties).
26 40. Resubmission of Plans

27 a. Upon receipt of a notice of disapproval pursuant to Paragraph 38( d),

Settling Defendants shall, within 30 days or such longer time as specified in the SOW or by EP A
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1 in the notice of disapproval, correct the deficiencies and resubmit the plan, report, or other item

2 for approvaL. Any stipulated penalties applicable to the submission, as provided in Section XXI,
3 shall accrue during the correction period or otherwise-specified period but shall not be payable

4 unless the resubmission is disapproved or modified due to a material defect as provided in

5 Paragraphs 41 and 42.

6 b. Notwithstanding the receipt of a notice of disapproval pursuant to
7 Paragraph 38( d), Settling Defendants shall proceed, at the direction of EP A, to take any

action

8 required by any non-deficient portion of the submission. Implementation of any non-deficient

9 portion of a submission shall not relieve Settlng Defendants of any liability for stipulated
10 penalties under Section XXI (Stipulated Penalties).

11 41. In the event that a resubmitted plan, report, or other item, or portion thereof, is
12 disapproved by EP A, EP A may again require the Settling Defendants to correct the deficiencies,

13 in accordance with the preceding Paragraphs. EP A also retains the right to modify or develop the
14 plan, report, or other item. Settling Defendants shall implement any such plan, report, or item as

15 modified or developed by EP A, subject only to their right to invoke the procedures set forth in
16 Section XX (Dispute Resolution).
17 42. If upon resubmission, a plan, report, or item is disapproved or modified by EP A

18 due to a material defect, Settling Defendants shall be deemed to have failed to submit such plan,

19 report, or item timely and adequately unless the Settling Defendants invoke the dispute resolution
20 procedures set forth in Section XX (Dispute Resolution) and EP A's action is overturned pursuant

21 to that Section. The provisions of Section XX (Dispute Resolution) and Section XXI (Stipulated
22 Penalties) shall govern the implementation of the Work and accrual and payment of

any

23 stipulated penalties during Dispute Resolution. If EP A's disapproval or modification is upheld,
24 stipulated penalties shall accrue for such violation from the date on which the initial submission

25 was originally required, as provided in Section XXI (Stipulated Penalties).
26 43. All plans, reports, and other items required to be submitted to EP A under this

27 Consent Decree shall, upon approval or modification by EP A, be enforceable under this Consent
Decree. In the event EP A approves or modifies a portion of a plan, report, or other item required
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1 to be submitted to EP A under this Consent Decree, the approved or modified portion shall be

2 enforceable under this Consent Decree.

3 xn. PROJECT COORDINATORS
4 44. Within 20 days of lodging this Consent Decree, Settling Defendants, the State,
5 and EPA will notify each other, in writing, of the name, address, and telephone number of

their

6 respective designated Project Coordinators and Alternate Project Coordinators. If a Project
7 Coordinator or Alternate Project Coordinator initially designated is changed, the identity of

the

8 successor will be given to the other Paries at least 5 working days before the changes occur,
9 unless impracticable, but in no event later than the actual day the change is made. The Settling

10 Defendants' Proj ect Coordinator shall be subj ect to disapproval by EP A and shall have the

11 technical expertise suffcient to adequately oversee all aspects of the Work. The Settling
12 Defendants' Project Coordinator shall not be an attorney for the Settling Defendants in this

13 matter. He or she may assign other representatives, including other contractors, to serve as a Site
14 representative for oversight of

performance of daily operations during remedial activities.

15 45. Plaintiff and the State may designate other representatives, including, but not
16 limited to, EP A and State employees, and federal and State contractors and consultants, to
17 observe and monitor the progress of any activity undertaken pursuant to this Consent Decree.

18 EP A's Project Coordinator and Alternate Project Coordinator shall have the authority lawfully
19 vested in a Remedial Project Manager (RPM) and an On-Scene Coordinator (OSC) by the NCP,

20 40 C.F.R. Part 300. In addition, EP A's Project Coordinator or Alternate Project Coordinator
21 shall have authority, consistent with the NCP, to halt any Work required by this Consent Decree

22 and to take any necessary response action when he or she determines that conditions at the Site
23 constitute an emergency situation or may present an immediate threat to public health or welfare

24 or the environment due to release or threatened release of Waste MateriaL.
25 46. EPA's Project Coordinator and the Settling Defendants' Project Coordinator will

26 meet or confer, at a minimum, on a monthly basis.
27

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1 Xil. ASSURANCE OF ABILITY TO COMPLETE WORK
2 47. Within 30 days of

the Effective Date, Settling Defendants shall establish and
the following forms:

3 maintain financial security in the amount of$35 milion in one or more of

4 a. A surety bond guaranteeing performance of the Work;
5 b. One or more irrevocable letters of credit equaling the total estimated cost
6 of

the Work;

7 c. A trust fund;
8 d. A guarantee to perform the Work by one or more parent corporations or
9 subsidiaries, or by one or more unrelated corporations that have a substantial business

10 relationship with the Settling Defendants;
11 e. A demonstration that one or more Settling Defendants satisfy the
12 requirements of 40 C.F.R. Part 264.

143(f); or

13 f. A demonstration that one or more Settlng Defendants satisfy the financial

14 covenant and reporting requirements set forth in Appendix G to this Consent Decree.
15 48. a. If

the Settling Defendants seek to demonstrate the ability to complete the

16 Work through a guarantee by a third party pursuant to Paragraph 47.d of this Consent Decree,

17 Settling Defendants shall demonstrate that the guarantor satisfies the requirements of 40 C.F.R.
18 Par 264.143(f). If

Settling Defendants seek to demonstrate their ability to complete the Work by

19 means of

the financial test or the corporate guarantee pursuant to Paragraph 47.d or 47.e, they
143(f)

20 shall resubmit sworn statements conveying the information required by 40 C.F.R. Par 264.

21 annually, on the aniversary of the Effective Date. In the event that EP A determines at any time

22 that the financial assurances provided pursuant to this Section are inadequate, Settling
23 Defendants shall, within 30 days of receipt of notice of

EPA's determination, obtain and present

24 to EP A for approval one of the other forms of financial assurances listed in Paragraph 47 of this

25 Consent Decree. Settling Defendants' inability to demonstrate financial ability to complete the
26 Work shall not excuse performance of

any activities required under this Consent Decree.

27 b. The commencement of any Work Takeover pursuant to Paragraph 108 of

this Consent Decree shall trigger EP A's right to receive the benefit of any financial security
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1 mechanism(s) provided pursuant to Paragraph 47.a, b, c, or d, and at such time EPA shall have

2 immediate access to resources guaranteed under any such financial securitymechanism(s),
3 whether in cash or in kind, as needed to continue and complete the Work assumed by EP A under

4 the Work Takeover. If for any reason EP A is unable to promptly secure the resources guaranteed
5 under any such financial security mechanism(s), whether in cash or in kind, necessar to continue
6 and complete the Work assumed by EP A under the Work Takeover, or in the event that the

7 financial security mechanism involves a demonstration of satisfaction of the financial test criteria
8 pursuant to Paragraph 47.e or 47.f, Settlng Defendant(s) shall immediately upon written demand

9 from EP A deposit into an account specified by EP A, in immediately available fuds and without
10 setoff, counterclaim, or condition of any kind, a cash amount up to but not exceeding the
11 estimated cost of the remaining Work to be performed as of such date, as determined by EP A,
12 which amount will be used to fund the costs of

such remaining Work.

13 c.Should EP A exercise the rights set forth in Paragraph 48.b and draw fuds
14 from a financial assurance mechanism provided by Settling Defendants, EP A shall include a

15 statement with any bill for Future Response Costs issued after it makes any such draw providing
16 a sumary description of

how funds drawn from the financial assurance mechanism(s) were

17 expended by EP A. If Settling Defendants obtain a final decision through the Dispute Resolution
18 process that expenditure( s) made by EP A with funds drawn from Settling Defendants' financial

19 assurance mechanisms(s) was improper under CERCLA or this Consent Decree and Settling
20 Defendants should not be responsible for such expenditures(s), Settling Defendants shall receive

21 a credit against Future Response Costs in an amount equal to the expenditure(s) held to be
22 improper, provided, however, that the credit shall not exceed the total amount of

Future

23 Response Costs billed or due following the conclusion of the Dispute Resolution process.
24 49. If

Settlng Defendants can show that the estimated cost to complete the remaining

25 Work has diminished below the amount set forth in Paragraph 47 above after the Effective Date,
26 Settling Defendants may, on any anniversar date of the Effective Date, or at any other time
27 agreed to by the Parties, reduce the amount of the financial security provided under this Section

to the estimated cost of the remaining work to be performed. Settling Defendants shall submit a
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1 proposal for such reduction to EP A, in accordance with the requirements of

this Section, and may

2 reduce the amount of the security upon approval by EP A. In the event of a dispute, Settling
3 Defendants may reduce the amount of

the security in accordance with the final administrative or

4 judicial decision resolving the dispute.

5

50.

Settling Defendants may change the form of financial assurance provided under

6 this Section at any time, upon notice to and approval by EP A, provided that the new form of

7 assurance meets the requirements of this Section. In the event of a dispute, Settling Defendants
8 may change the form of

the financial assurance only in accordance with the final administrative

9 or judicial decision resolving the dispute.

10 XIV. CERTIFICATION OF COMPLETION
11

51.

Completion of the Work.
a.

12
13

Within 90 days after Settling Defendants conclude that all phases of the

Work (including O&M), have been fully performed, Settling Defendants shall schedule and
conduct a pre-certification inspection to be attended by Settlng Defendants, EP A, and the State.

14
15

If, after the pre-certification inspection, the Settling Defendants stil believe that the Work has
been fully performed, Settling Defendants shall submit a written report by a registered
professional engineer stating that the Work has been completed in full satisfaction of

16 17
18

the

requirements of this Consent Decree. The report shall contain the following statement, signed by
a responsible corporate offcial of a Settling Defendant or the Settling Defendants' Project
Coordinator:

19

20
21

22
23

my knowledge, after thorough investigation, I certify that the information contained in or accompanying this submission is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
To the best of

24
25

If, after review of the written report, EP A, after reasonable opportunity to review and comment
by the State, determines that any portion of

the Work has not been completed in accordance with

26
27

this Consent Decree, EP A will notify Settling Defendants in writing of the activities that must be

undertaken by Settling Defendants pursuant to this Consent Decree to complete the Work,

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1 provided, however, that EP A may only require Settling Defendants to perform such activities
2 pursuant to this Paragraph to the extent that such activities are consistent with the "scope of the

3 remedy selected in the ROD and the ESDs," as that term is defined in Paragraph 14.b. EP A will
4 set forth in the notice a schedule for performance of such activities consistent with the Consent

5 Decree and the SOW or require the Settling Defendants to submit a schedule to EP A for approval
6 pursuant to Section XI (EP A Approval of Plans and Other Submissions). Settling Defendants

7 shall perform all activities described in the notice in accordance with the specifications and
8 schedules established therein, subject to their right to invoke the dispute resolution procedures set
9 forth in Section XX (Dispute Resolution).

10 b. IfEPA concludes, based on the initial or any subsequent request for

11 Certification of Completion by Settling Defendants and after a reasonable opportunity for review

12 and comment by the State, that the Work has been performed in accordance with this Consent

13 Decree, EPA wil so notify the Settling Defendants in wrting.

14 XV. EMERGENCY RESPONSE
15 52. In the event of any action or occurence during the performance of

the Work

16 which causes or threatens a release of Waste Material from the Site that constitutes an emergency
17 situation or may present an immediate threat to public health or welfare or the environment,
18 Settling Defendants shall, subject to Paragraph 53, immediately take all appropriate action to
19 prevent, abate, or minimize such release or threat of release, and shall immediately notify EP A's
20 Project Coordinator, or, ifthe Project Coordinator is unavailable, EP A's Alternate Project

21 Coordinator. The Settling Defendants shall also immediately notify the EP A Region IX Regional
22 Response Center. Settling Defendants shall take such actions in consultation with EP A's Project

23 Coordinator or other available authorized EP A offcer and in accordance with all applicable

24 provisions of the Health and Safety Plans, the Contingency Plans, and any other applicable plans
25 or documents developed pursuant to the SOW. In the event that Settling Defendants fail to take

26 appropriate response action as required by this Section, and EP A takes such action instead,
27 Settling Defendants shall reimburse EPA all costs of

the response action not inconsistent with the

NCP pursuant to Section XVI (Payments for Response Costs and Civil Penalty).
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1 53. Nothing in the preceding Paragraph or in this Consent Decree shall be deemed to
2 limit any authority of

the United States a) to take all appropriate action to protect human health

3 and the environment or to prevent, abate, respond to, or minimize an actual or threatened release

4 of Waste Material on, at, or from the Site, or b) to direct or order such action, or seek an order
5 from the Court, to protect human health and the environment or to prevent, abate, respond to, or
6 minimize an actual or threatened release of

Waste Material on, at, or from the Site, subject to

7 Section xxn (Covenants Not to Sue by Plaintiff).

8 XVI. PAYMENTS FOR RESPONSE COSTS AND CIVIL PENALTY
9 54. Payments for Past Response Costs.
10 a. Within 30 days of

the Effective Date, Settling Defendants shall pay to

11 EP A $6,700,000 in payment for Past Response Costs. Payment shall be made by FedWire

12 Electronic Funds Transfer ("EFT") to the U.S. Deparment of Justice account in accordance with

13 current EFT procedures, referencing USAO File Number 2004V00596, EPA Site/Spill il

14 Number 09R8, and DOJ Case Number 90-11-2-248/1. Payment shall be made in accordance

15 with instructions provided to the Settlng Defendants by the Financial Litigation Unit of the
16 United States Attorney's Offce for the District of Arzona following lodging of the Consent
17 Decree. Any payments received by the Department of Justice after 4:00 p.m. (Eastern Time) will

18 be credited on the next business day.
19 b. At the time of

payment, Settling Defendants shall send notice that payment

20 has been made to the United States, to EP A, and to the Regional Financial Management Offcer,
21 in accordance with Section xxvn (Notices and Submissions).

22 c. The total amount to be paid by Setting Defendants pursuant to

23 Subparagraph 54.a shall be deposited in the PGA North Special Account within the EP A

24 Hazardous Substance Superfund to be retained and used to conduct or finance response actions at
25 or in connection with the Site, or to be transferred by EP A to the EP A Hazardous Substance
26 Superfund.

27 55. Payments for Future Response Costs.
a. Settling Defendants shall pay to EP A all Future Response Costs not
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1 inconsistent with the NCP. On a periodic basis the United States will send Settling Defendants a
2 bill requiring payment that includes an accounting of direct and indirect costs incurred by EP A

3 and its contractors with respect to this Consent Decree. Settling Defendants shall make all

4 payments within 30 days of Settling Defendants' receipt of each bill requiring payment, except as
5 otherwise provided in Paragraph 56. Settling Defendants shall make all payments required by

6 this Paragraph by FedWire EFT, pursuant to the instrctions set forth in Paragraph 54.a, or by a
7 certified or cashier's check or checks made payable to "EP A Hazardous Substance Superfund,"

8 referencing the name and address of the party making the payment, EP A Site/Spill il Number
9 09R8, and DOJ Case Number 90-11-2-248/1. Settling Defendants shall send the check(s) to:

10 EP A - Cincinnati Accounting Operations

11 P.O. Box 371099M
12
b. At the time of

Attention: Region 9 Receivables

Pittsburgh, PA 15251

payment, Settling Defendants shall send notice that payment

13

has been made to the United States, to EP A, and to the Regional Financial Management Officer,
14

in accordance with Section XXVII (Notices and Submissions).
15
c. The total amount to be paid by Setting Defendants pursuant to this

16

Paragraph shall be deposited in the PGA-North Special Account within the EP A Hazardous
17

Substance Superfund to be retained and used to conduct or finance response actions at or in
18

connection with the Site, or to be transferred by EP A to the EP A Hazardous Substance
19

Superfund.
20
56. Settling Defendants may contest payment of any Future Response Costs under

21
Paragraph 55 if they determine that the United States has made an accounting error or if

they

22

allege that a cost item that is included represents costs that are inconsistent with the NCP. Such
23
objection shall be made in writing within 30 days of receipt of

the bill, and must be sent to the

24

United States pursuant to Section xxvn (Notices and Submissions). Any such objection shall
25

specifically identify the contested Future Response Costs and the basis for objection. Prior to or
26
in conjunction with an objection, Settlng Defendants may request some or all of

the following

27

additional supporting documentation from EP A: employee time reports, employee travel records,
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1 contractor vouchers, interagency agreements with amendments and drawdowns, and cooperative

2 agreements with amendments and drawdowns. In the event of an objection, the Settling

3 Defendants shall within the 30 day period pay all uncontested Future Response Costs to the

4 United States in the manner described in Paragraph 55. Simultaneously, the Settling Defendants
5 shall establish an interest-bearing escrow account in a federally-insured bank duly chartered in
6 the State of Arzona and remit to that escrow account fuds equivalent to the amount of

the

7 contested Future Response Costs. The Settling Defendants shall send to the United States, as
8 provided in Section XXVII (Notices and Submissions), a copy of the transmittal

letter and check

9 paying the uncontested Future Response Costs, and a copy of the correspondence that establishes
10 and funds the escrow account, including, but not limited to, information containing the identity

11 of the bank and bank account under which the escrow account is established as well as a ban
12 statement showing the initial balance of the escrow account. Simultaneously with establishment
13 of

the escrow account, the Settling Defendants shall initiate the Dispute Resolution procedures in

14 Section XX (Dispute Resolution). If

the United States prevails in the dispute, within 5 days of

15 the resolution of

the dispute, the Settling Defendants shall pay the sums due (with accrued
the Settling Defendants

16 interest) to the United States in the manner described in Paragraph 55. If

17 prevail concerning any aspect of the contested costs, the Settling Defendants shall pay that
18 portion of

the costs (plus associated accrued interest) for which they did not prevail to the United

19 States in the manner described in Paragraph 55; Settling Defendants shall be disbursed any
20 balance of the escrow account. The dispute resolution procedures set forth in this Paragraph in

21 conjunction with the procedures set forth in Section XX (Dispute Resolution) shall be the
22 exclusive mechanisms for resolving disputes regarding the Settling Defendants' obligation to

23 reimburse the United States for its Future Response Costs.
24 57. In the event that the payments required by Paragraph 54.a and Paragraph 58 are
25 not made within 30 days of

the Effective Date or the payments required by Paragraph 55 are not
the Settling Defendants' receipt of

26 made within 30 days of

the bill, Settling Defendants shall pay

27 Interest on the unpaid balance. The Interest to be paid under this Paragraph on Past Response
Costs and the civil penalty set forth in Paragraph 58 shall begin to accrue on the Effective Date.
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1 The Interest on Future Response Costs shall begin to accrue on the date of the bill. The Interest
2 shall accrue through the date of the Settling Defendants' payment. Payments of

Interest made

3 under this Paragraph shall be in addition to such other remedies or sanctions available to
4 Plaintiffs by virtue of Settling Defendants' failure to make timely payments under this Section
5 including, but not limited to, payment of stipulated penalties pursuant to Section XXI (Stipulated

6 Penalties). The Settling Defendants shall make all payments required by this Paragraph in the

7 manner described in Paragraph 55.
8 58. Payment of

Civil Penalty.

9 a. Within 30 days of the Effective Date, Settling Defendant UPI shall pay a

10 civil penalty to the EP A Hazardous Substance Superfund of $500,000 for violations alleged in
11 the United States' Complaint. Payment shall be made by FedWire EFT pursuant to the

12 instructions set forth in Paragraph 54.a.
13 b. At the time of

payment, Settling Defendant UPI shall send notice that

14 payment has been made to the United States, to EP A, and to the Regional Financial Management
15 Offcer, in accordance with Section XXVII (Notices and Submissions).

16 c. Defendant shall not deduct the civil penalty paid under this Paragraph in

17 calculating its federal income tax.

18 xvn. SUPPLEMENTAL ENVIRONMENTAL PROJECT
19 59. Settling Defendants shall spend no less than $1,000,000 in "eligible SEP costs" to

20 implement the SEP described below in accordance with the provisions of this Section xvn of
21 the Consent Decree and Appendix F, which is attached hereto and incorporated by reference into

22 and enforceable under this Consent Decree. "Eligible SEP costs" shall mean the costs of
23 designing, planning, and implementing the SEP, but shall not include Settling Defendants'

24 overhead, administrative expenses, legal fees, or contractor oversight.
25 60. Brownfields SEP. Settling Defendants shall spend $1,000,000 in eligible SEP

26 costs for implementation of a Brownfields Inventory, Assessment, and Remediation project
27 ("Brownfields SEP") in the City of

Goodyear, Arzona, as described more fully in Appendix F.

Settling Defendants shall expend these monies as set forth in Appendix F, with the goal of
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1 completing Phase I assessment and inventory of 25 sites, Phase IT assessment of 4 sites, and
2 remediation of 3 sites.
3 61. The United States recognizes that Settling Defendants intend to contract with the

4 City of Goodyear for the performance of services related to implementation of the SEP. By no
5 later than sixty (60) days after entry of

this Consent Decree, Settling Defendants shall submit to

6 EP A for review and approval a contract that has been negotiated, but not executed, between
7 Settling Defendants and the City of Goodyear under which Settling Defendants shall agree to

8 conduct the SEP (the "SEP Agreement") consistent with the requirements ofthis Consent

9 Decree, including Appendix F. The SEP Agreement shall not permit the transfer of SEP monies
10 from the Settling Defendants to the City of Goodyear; except that, in the implementation of the
11 SEP, the Settling Defendants may contract with the City of Goodyear for the performance of
12 legal, administrative, and engineering services, at fair market value, required to implement the
13 SEP.
14 62. The SEP Agreement shall: (1) contain an escrow agreement including the creation
15 of

an escrow account to be funded by Settlng Defendants with the sum of$l,OOO,OOO within

16 thirty (30) days ofthe effective date of

the SEP Agreement; (2) allocate eligible SEP costs based

17 on a budget for the SEPs to be provided by the City of Goodyear that is consistent with this
18 Consent Decree and Appendix F and to be incorporated in the SEP Agreement; (3) contain a

19 detailed description of the tasks to be performed for the implementation of the SEP and a
20 schedule for completion ofthose tasks within three years from the date ofEPA's approval of

the

21 SEP Agreement; (4) contain criteria, including a description of

the costs to be incurred and an

22 explanation of

why those costs are eligible SEP costs, that must be satisfied by the City of

23 Goodyear before the escrow agreement can disburse funds; and (5) provide a mechanism(s)
24 pursuant to which Settling Defendants can enforce compliance by the City of Goodyear with the
25 terms of the SEP Agreement consistent with the applicable provisions of the Consent Decree,

26 including Appendix F.
27 63. Upon receipt of

the proposed SEP Agreement, EPA shall: (1) approve the SEP

Agreement; (2) disapprove the SEP Agreement in whole or in part; (3) approve the SEP
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1 Agreement upon specified conditions; or (4) any combination of

the above. In undertaking any

2 partial approval or disapproval ofthe contract, EPA's City of

Goodyear SEP Project Coordinator

3 may consult with the City of Goodyear and take into consideration the City of Goodyear's

4 position on any areas of potential disapproval. By no later than sixty (60) days after EP A notifies
5 Setting Defendants of its disapproval or its direction to modify the SEP Agreement, Settling
6 Defendants shall submit a modified contract to EP A for approval, unless the City of Goodyear
7 does not agree to the proposed modifications.

8 64. In the event that a resubmitted SEP Agreement or portion thereof is disapproved
9 in whole or in part or approved with conditions by EP A, EP A may again require Settling

10 Defendants to resubmit the SEP Agreement and/or include the conditions in a further revised

11 SEP Agreement. If, at any time after EP A's first disapproval in whole or in part of a resubmitted
12 SEP Agreement, or EP A's approval of such resubmitted SEP Agreement with conditions,
13 Settling Defendants disagree with EP A's comments on or requests regarding a resubmitted SEP

14 Agreement or portion thereof, Settling Defendants shall have the right to invoke the dispute

15 resolution provisions of Section XX (Dispute Resolution).
16 65. Upon approval by EP A, Settling Defendants and the City of Goodyear shall

17 execute the approved SEP Agreement, and the executed SEP Agreement shall be incorporated
18 herein as part of this Consent Decree. Settling Defendants shall complete all actions required of

19 them under the SEP Agreement in accordance with the schedule set forth in the approved SEP
20 Agreement, unless modified pursuant to Paragraph 66. If Settlng Defendants fail to meet any
21 deadline established in the SEP Agreement, within thirty (30) days of such failure, Settling
22 Defendants shall notify EP A's City of Goodyear's SEP Proj ect Coordinator in writing of such

23 failure, the reason(s) for the failure, and shall set forth a schedule for completing the SEP.
24 66. Settling Defendants and the City of Goodyear, with the written approval of

EPA,

25 may modify the dates set forth in the original SEP Agreement as necessary to achieve the
26 objectives of

this Section. Settling Defendants shall provide reasonable notice to EP A's City of

27 Goodyear SEP Project Coordinator regarding any delays or impediments to implementation of
the SEP or a change in the allocation ofSEP funds and shall communicate with EPA's City

of

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1 Goodyear SEP Project Coordinator regarding the rescheduling of any originally-scheduled

2 milestone, implementation dates, or changes in allocation. A modification to the dates initially
3 set forth in the approved SEP Agreement or a change in allocation of SEP fuds shall be signed
4 in writing by Settling Defendants and the City of

Goodyear. Neither the United States nor

5 Settling Defendants shall be required to file any such modifications with the Court in order for
6 the modifications to be effective.

7

67.

If Settling Defendants and the City of Goodyear cannot reach agreement on a SEP

8 Agreement within the time period set forth in Paragraph 61, or if the City of Goodyear does not
9 approve a proposed modification to the SEP Agreement, Settling Defendants shall be liable for

10 stipulated penalties pursuant to Paragraph 96 of this Decree.
11

68.

Satisfactory Completion.
a.

12

Settling Defendants are responsible for the satisfactory completion of the

13 SEP in accordance with the requirements of the Consent Decree. "Satisfactory completion"
14 means that Settling Defendants shall ensure completion of

the project requirements in accord

15 with all specifications in this Section XVIT of

the Consent Decree, in Appendix F, and in the

16 approved SEP Agreement.
17

b.

Settling Defendants shall also ensure that they spend not less than the total

18 SEP amount set forth in Paragraph 59 above.
19

69.

Proiect Coordinators and Contact Person.
a.

20
21

EP A's City of Goodyear SEP Project Coordinator is:

Mary Aycock Remedial Project Manager
EP A Region IX

22
23

75 Hawthorne Street, SFD-8-2 San Francisco, CA 94105 Tel: (415) 972-3289
b. Settling Defendants' City of Goodyear SEP Project Coordinator is:

24
25

26
27

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

100 First Stamford Place Stamford, CT 06902
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Tel: (203) 363-7314
2

c.

The City of Goodyear SEP Project Contact Person for the City of
David Iwanski

Goodyear is:
3

4
5

6
7
8 respective City of

Water Resources Manager - Water Management City of Goodyear 190 N. Litchfield Road P.O. Box 5100 Goodyear, AZ 85338 Tel: (623) 882-7062
d.

EP A and Settling Defendants each shall have the right to change their
Goodyear SEP Project Coordinators, and the City of

Goodyear shall have the

9 right to change its SEP Project Contact Person. Such a change shall be accomplished by

10 notifying the others in writing as soon as practicable before or after the change occurs.
11

70.

Except where explicitly stated otherwise, Settling Defendants shall send all

12 submissions, plans, reports, notices, correspondence, or other documents required under Section
13 XVIT of this Decree to EP A's City of Goodyear SEP Project Coordinator and to the City of
14 Goodyear SEP Contact Person. The SEP Agreement shall provide that the City of Goodyear
15 shall be required to send all such submissions to EP A's City of Goodyear SEP Project

16 Coordinator. EP A shall send all notices, comments, correspondence, or other documents to
17 Settling Defendants' City of Goodyear SEP Project Coordinator and to the City of

Goodyear SEP

18 Contact Person. Submission of all plans, reports, notices, comments, correspondence, or other
19 documents shall be effective as of the date of

mailing.
the SEP, Settling Defendants shall

20

71.

Within thirty (30) days of

the completion of

21 submit a SEP Completion Report to EPA in accordance with Section XXVII of

this Consent

22 Decree (Notices and Submissions). Settlng Defendants are required to submit the SEP
23 Completion Report even if

they have already expended at least $1,000,000 on eligible SEP costs.

24 The SEP Completion Report shall contain the following information:
25

a.

a detailed description of the SEP as implemented;

26

b.

a description of any problems encountered in completing the SEP and the

27 solutions thereto;
c. an itemized list of all eligible SEP Costs; and

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1 d. a description of

the environmental and public health benefits resulting
the SEP (with a quantification of

2 from implementation of

the benefits and pollutant reductions, if

3 any).
4 Settling Defendants may incorporate information and statements provided by the City of
5 Goodyear regarding completion of

the SEP into Settling Defendants' SEP Completion Report.

6 72. EP A may require information in addition to that described above, in order to

7 determine the adequacy of SEP completion or eligibility of SEP costs, and Settling Defendants
8 shall provide such information.

9 73. After receiving the SEP Completion Report, EP A shall notify Settling Defendants

10 whether or not the SEP has been satisfactorily completed. If the SEP has not been satisfactorily

11 completed in accordance with all applicable requirements of this Consent Decree, including

12 Appendix F, or the eligible SEP costs expended are less than the amounts set forth in Paragraph
13 59, stipulated penalties may be assessed pursuant to Paragraph 96 of

this Consent Decree.

14 74. Disputes concerning the satisfactory completion of

the SEPs and eligible SEP

15 costs may be resolved under Section XX of

this Consent Decree (Dispute Resolution). Except as

16 set forth in Paragraph 64, no other disputes arising under this Section XVIT shall be subject to
17 Dispute Resolution.
18 75. With regard to the SEP, Setting Defendants certify the truth and accuracy of each

19 of the following:
20 a. that, as of

the date of executing this Consent Decree, Settling Defendants

21 or the City of Goodyear are not required to perform or develop the SEP by any federal, state, or
22 local

law or regulation and are not required to perform or develop the SEP by agreement, grant,

23 or as injunctive relief awarded in any other action in any forum;
24 b. that the SEP is not a project that Settling Defendants were planing or
25 intending to construct, perform, or implement other than in settlement of

the claims resolved in

26 this Consent Decree;
27 c. that Settling Defendants have not received, and are not negotiating to

receive, credit for the SEP in any other enforcement action; and
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1 d. that Settling Defendants will not receive any reimbursement for any
2 portion of the SEP from any other person.

3 76. Settlng Defendants agree, and the SEP Agreement shall provide, that any public
4 statement, oral or written, in print, fim, or other media, made by Settling Defendants or the City

5 of Goodyear making reference to the SEP under this Consent Decree shall include the following
6 language: "This project was undertaken in connection with the settlement of an enforcement
7 action taken on behalf of

the U.S. Environmental Protection Agency under the Comprehensive

8 Environmental Response, Compensation, and Liability Act."
9 77. Settling Defendants shall not deduct the cost of the SEP from their federal, state,

10 or local taxes.

11 XVil. INDEMNIFICATION AND INSURANCE
12 78. Settling Defendants' Indemnification of

the United States.

13 a. The United States does not assume any liability by entering into this

14 agreement or by virtue of any designation of Settling Defendants as EP A's authorized

15 representatives under Section 104(e) ofCERCLA. Settling Defendants shall indemnify, save,

16 and hold harmless the United States and its offcials, agents, employees, contractors,
17 subcontractors, or representatives for or from any and all claims or causes of action arsing from,

18 or on account of, negligent or other wrongful acts or omissions of Settling Defendants, their
19 offcers, directors, employees, agents, contractors, subcontractors, and any persons acting on their

20 behalf or under their control, in carrng out activities pursuant to this Consent Decree, including,

21 but not limited to, any claims arising from any designation of Settling Defendants as EP A's

22 authorized representatives under Section 104(e) ofCERCLA. Further, the Settling Defendants
23 agree to pay the United States all costs it incurs including, but not limited to, attorneys fees and
24 other expenses of litigation and settlement arising from, or on account of, claims made against

25 the United States based on negligent or other wrongful acts or omissions of Settling Defendants,
26 their officers, directors, employees, agents, contractors, subcontractors, and any persons acting on

27 their behalf or under their control, in carrng out activities pursuant to this Consent Decree. The
United States shall not be held out as a party to any contract entered into by or on behalf of
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1 Settlng Defendants in carrng out activities pursuant to this Consent Decree. Neither the

2 Settling Defendants nor any such contractor shall be considered an agent of the United States.
3 b. The United States shall give Settling Defendants notice of any claim for

4 which the United States plans to seek indemnification pursuant to Paragraph 78 and shall consult

5 with Settling Defendants prior to settling such claim.
6 79. Settling Defendants waive all claims against the United States for damages or

7 reimbursement or for set-off of any payments made or to be made to the United States, arising
8 from or on account of any contract, agreement, or arrangement between anyone or more of

9 Settling Defendants and any person for performance of Work on or relating to the Site, including,

10 but not limited to, claims on account of construction delays. In addition, Settlng Defendants
11 shall indemnify and hold harmless the United States with respect to any and all claims for
12 damages or reimbursement arising from or on account of any contract, agreement, or

13 arrangement between Settling Defendants and any person for performance of Work on or relating

14 to the Site, including, but not limited to, claims on account of construction delays.
15 80. No later than 15 days before commencing anyon-site Work, Settling Defendants
16 shall secure and shall maintain comprehensive general

liability insurance with limits of $3

17 milion dollars, combined single limit, and automobile liability insurance with limits of $1

18 milion dollars, combined single limit, naming the United States as an additional insured. In
19 addition, for the duration of this Consent Decree, Settling Defendants shall satisfy, or shall
20 ensure that their contractors or subcontractors satisfy, all applicable laws and regulations
21 regarding the provision of

worker's compensation insurance for all persons performing the Work

22 on behalf of Settling Defendants in furtherance of this Consent Decree. Prior to commencement

23 of the Work under this Consent Decree, Setting Defendants shall provide to EP A certificates of

24 such insurance and a copy of each insurance policy. Settling Defendants shall resubmit such
25 certificates and copies of policies each year on the anniversary of the Effective Date. If Settling
26 Defendants demonstrate by evidence satisfactory to EP A that any contractor or subcontractor

27 maintains insurance equivalent to that described above, or insurance covering the same risks but
in a lesser amount, then, with respect to that contractor or subcontractor, Settling Defendants
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1 need provide only that portion of the insurance described above which is not maintained by the
2 contractor or subcontractor.

3 XIX. FORCE MAJEURE
4 81. "Force majeure," for purposes of this Consent Decree, is defined as any

event

5 arising from causes beyond the control of the Settling Defendants, of any entity controlled by
6 Settling Defendants, or of

Settlng Defendants' contractors, that delays or prevents the

7 performance of any obligation under this Consent Decree despite Settling Defendants' best
8 efforts to fulfill the obligation. The requirement that the Settling Defendants exercise "best

9 efforts to fulfill the obligation" includes using best efforts to anticipate any potential force
10 majeure event and best efforts to address the effects of any

potential force majeure event (1) as it

11 is occurng and (2) following the potential force majeure event, such that the delay is minimized
12 to the greatest extent possible. "Force Majeure" does not include financial inability to complete

13 the Work or a failure to attain the Performance Standards.
14 82. If any event occurs or has occurred that may delay the performance of any

15 obligation under this Consent Decree, whether or not caused by a force majeure event, the
16 Settling Defendants shall notify orally EP A's Project Coordinator or, in his or her absence, EP A's

17 Alternate Project Coordinator or, in the event both ofEP A's designated representatives are
18 unavailable, the Director of the Superfund Division, EP A Region IX, within 48 hours of when
19 Settling Defendants first know that the event might cause a delay. Within 7 days thereafter,

20 Settling Defendants shall provide in writing to EP A an explanation and description of the reasons

21 for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or

22 minimize the delay; a schedule for implementation of any measures to be taken to prevent or
23 mitigate the delay or the effect(s) ofthe delay; the Settling Defendants' rationale for attrbuting

24 such delay to a force maj eure event if they intend to assert such a claim; and a statement as to

25 whether, in the opinion of the Settling Defendants, such event may cause or contribute to an
26 endangerment to public health, welfare, or the environment. The Settling Defendants shall

27 include with any notice all available documentation supporting their claim that the delay was
attributable to a force majeure. Failure to comply with the above requirements shall preclude
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1 Settling Defendants from asserting any claim of

force majeure for that event for the period of

2 time of such failure to comply, and for any additional delay caused by such failure. Settling
3 Defendants shall be deemed to know of any circumstance of which Settling Defendants, any
4 entity controlled by Settling Defendants, or Settling Defendants' contractors knew or should have

5 known.
6 83. If EP A agrees that the delay or anticipated delay is attributable to a force maj eure
7 event, the time for performance of the obligations under this Consent Decree that are affected by

8 the force majeure event will be extended by EP A for such time as is necessary to complete those
9 obligations. An extension of the time for performance of

the obligations affected by the force

10 maj eure event shall not, of itself, extend the time for performance of any other obligation. If

11 EP A does not agree that the delay or anticipated delay has been or will be caused by a force
12 maj eure event, EP A wil notify the Settling Defendants in writing of its decision. If EP A agrees
13 that the delay is attributable to a force maj eure event, EP A will notify the Settling Defendants in
14 writing of the length of the extension, if any, for performance of

the obligations affected by the

15 force maj eure event.
16 84. If

the Settling Defendants elect to invoke the dispute resolution procedures set

17 forth in Section XX (Dispute Resolution), they shall do so no later than 15 days after receipt of
18 EP A's notice. In any such proceeding, Settling Defendants shall have the burden of

19 demonstrating by a preponderance ofthe evidence that the delay or anticipated delay has been or
20 will be caused by a force majeure event, that the duration of

the delay or the extension sought

21 was or will be warranted under the circumstances, that best efforts were exercised to avoid and
22 mitigate the effects of the delay, and that Setting Defendants complied with the requirements of

23 Paragraphs 81 and 82 above. If Settling Defendants carr this burden, the delay at issue shall be
24 deemed not to be a violation by Settling Defendants of the affected obligation of this Consent

25 Decree identified to EP A and the Court.

26 XX. DISPUTE RESOLUTION
27 85. Unless otherwise expressly provided for in this Consent Decree, the dispute
resolution procedures of

this Section shall be the exclusive mechanism to resolve disputes arsing
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1 under or with respect to this Consent Decree. However, the procedures set forth in this Section
2 shall not apply to actions by the United States to enforce obligations of

the Settling Defendants

3 that have not been disputed in accordance with this Section.

4 86. Informal Negotiation.
5 a. Any dispute which arises under or with respect to this Consent Decree
6 shall in the first instance be the subject of informal negotiations between the parties to the

7 dispute. The period for informal negotiations shall not exceed 20 days from the time the dispute
8 arises, unless it is modified by written agreement of the parties to the dispute. The dispute shall
9 be considered to have arisen when one party sends the other party a written Notice of

Dispute.

10 b. Settling Defendants may make a written request to the United States to

11 mediate any dispute arising hereunder. The United States' decision regarding participation in
12 mediation is not subject to dispute resolution or judicial review. If

the United States agrees to

13 paricipate in mediation, the Parties wil enter into a separate agreement regarding the procedures

14 and schedule for such mediation.
15 87. Statements of

Position.

16 a. In the event that the paries cannot resolve a dispute by informal

17 negotiations under the preceding Paragraph, then the position advanced by EP A shall be
18 considered binding unless, within 15 days after the conclusion of the informal negotiation period,
19 Settling Defendants invoke the formal dispute resolution procedures of

this Section by serving on

20 the United States a written Statement of

Position on the matter in dispute, including, but not

21 limited to, any factual data, analysis, or opinion supporting that position and any supporting
22 documentation relied upon by the Settling Defendants. The Statement of Position shall specify
23 the Settling Defendants' position as to whether formal dispute resolution should proceed under
24 Paragraph 88 or Paragraph 89.
25 b. Within 21 days after receipt of Settlng Defendants' Statement of

Position,
Position, including, but not limited to,

26 EP A will serve on Settling Defendants its Statement of

27 any factual data, analysis, or opinion supporting that position and all supporting documentation
relied upon by EP A. EP A's Statement of

Position shall include a statement as to whether formal
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1 dispute resolution should proceed under Paragraph 88 or 89. Within 5 days after receipt ofEP A's
2 Statement of

Position, Settling Defendants may submit a Reply.

3 c. If there is disagreement between EP A and the Settling Defendants as to

4 whether dispute resolution should proceed under Paragraph 88 or 89, the parties to the dispute
5 shall follow the procedures set forth in the paragraph determined by EP A to be applicable.
6 However, if

the Settling Defendants ultimately appeal to the Court to resolve the dispute, the

7 Court shall determine which paragraph is applicable in accordance with the standards of
8 applicability set forth in Paragraphs 88 and 89.

9 88. Formal dispute resolution for disputes pertaining to the selection or adequacy of

10 any response action and all other disputes that are accorded review on the administrative record

11 under applicable principles of administrative law shall be conducted pursuant to the procedures
12 set forth in this Paragraph. For purposes of

this Paragraph, the adequacy of any response action
plans, procedures to

13 includes, without limitation: (1) the adequacy or appropriateness of

14 implement plans, or any other items requiring approval by EP A under this Consent Decree; and
15 (2) the adequacy of

the performance ofresponse actions taken pursuant to this Consent Decree.

16 Nothing in this Consent Decree shall be construed to allow any dispute by Settling Defendants
17 regarding the validity of the provisions of the ROD or the ESDs.
18 a. An administrative record of the dispute shall be maintained by EP A and

19 shall contain all statements of position, including supporting documentation, submitted pursuant
20 to this Section. Where appropriate, EP A may allow submission of supplemental statements of

21 position by the parties to the dispute.
22 b. The Director of

the Superfund Division, EPA Region IX, will issue a final

23 administrative decision resolving the dispute based on the administrative record described in
24 Paragraph 88.a. This decision shall be binding upon the Settling Defendants, subject only to the
25 right to seek

judicial review pursuant to Paragraphs 88.c and d.

26 c. Any administrative decision made by EP A pursuant to Paragraph 88.b

27 shall be reviewable by this Court, provided that a motion for judicial review of the decision is
fied by the Settling Defendants with the Court and served on all Parties within 10 days of

receipt

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1 of EP A's decision. The motion shall include a description of the matter in dispute, the efforts
2 made by the parties to resolve it, the relief requested, and the schedule, if any, within which the
3 dispute must be resolved to ensure orderly implementation of

this Consent Decree. The United

4 States may fie a response to Settling Defendants' motion.

5 d. In proceedings on any dispute governed by this Paragraph 88, Settling

6 Defendants shall have the burden of demonstrating that the decision of the Superfund Division
7 Director is arbitrary and capricious or otherwise not in accordance with law. Judicial review of

8 EP A's decision shall be on the administrative record compiled pursuant to Paragraph 88.a.

9 89. Formal dispute resolution for disputes that neither pertain to the selection or

10 adequacy of any response action nor are otherwise accorded review on the administrative record

11 under applicable principles of administrative law, shall be governed by this Paragraph.
12 a. Following receipt of Settling Defendants' Statement of

Position submitted

13 pursuant to Paragraph 87, the Director of

the Superfund Division, EPA Region IX, will issue a

14 final decision resolving the dispute. The Superfund Division Director's decision shall be binding
15 on the Settling Defendants unless, within 10 days of receipt of

the decision, the Settling

16 Defendants fie with the Cour and serve on the parties a motion for judicial review of the
17 decision setting forth the matter in dispute, the efforts made by the parties to resolve it, the relief
18 requested, and the schedule, if any, within which the dispute must be resolved to ensure orderly

19 implementation of the Consent Decree. The United States may file a response to Settling
20 Defendants' motion.
21 b. Notwithstanding Paragraph N. of Section I (Background) of

this Consent

22 Decree, judicial review of any dispute governed by this Paragraph shall be governed by
23 applicable principles of law.
24 90. The invocation of formal dispute resolution procedures under this Section shall

25 not extend, postpone, or affect in any way any obligation of the Settling Defendants under this
26 Consent Decree not directly in dispute, unless EP A or the Court agrees otherwise. Stipulated

27 penalties with respect to the disputed matter shall continue to accrue but payment shall be stayed
pending resolution of

the dispute as provided in Paragraph 102. Notwithstanding the stay of
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1 payment, stipulated penalties shall accrue from the first day of noncompliance with any
2 applicable provision of this Consent Decree. In the event that the Settling Defendants do not
3 prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in

4 Section XXI (Stipulated Penalties).

5 XXI. STIPULA TED PENALTIES
6 91. Setting Defendants shall be liable for stipulated penalties in the amounts set forth

7 in Paragraphs 92, 93, and 94 to the United States for failure to comply with the requirements of
8 this Consent Decree specified below, unless excused under Section XIX (Force Majeure).

9 "Compliance" by Settling Defendants shall include completion of the activities under this
10 Consent Decree or any work plan or othe