Free Decree - District Court of Arizona - Arizona

1

2
3

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

4
5

6
7
8

9 10

11 Crane Co., et aI.,

12 Plaintiff(s),

13 v.

14 United States of America,
15

Defendant( s).

) ) ) ) ) ) ) )
) )

CIV-03-2226-PHX-ROS CIV-04-1400-PHX-ROS (Consolidated)

PARTIA CONSENT DECREE

16
17 18 19

20
21

22
23

24
25

26
27

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 1 of 28

1 TABLE OF CONTENTS
2 I. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. JURISDICTION ........................................................ 4

3 il. PARTIES BOUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV. DEFINITIONS ........................................................ 4

4 V. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

5 VII. REMEDY REVIEW ................................................... 15
Vil. QUALITY ASSURANCE. SAMPLING. AND DATA ANALYSIS ...................16

VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS . . . . . . . . . . . . . . . . . . . . 11

6 IX. ACCESS AND INSTITUTIONAL CONTROLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
X. REpORTING REOUIREMENTS ............................................ 28
7 XI. EPAAPPROVAL OF PLANS AND OTHER SUBMISSIONS

XII. PROJECT COORDINATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8 Xil. ASSURANCE OF ABILITY TO COMPLETE WORK

........................30 ............................33 XIV. CERTIFICATION OF COMPLETION ......................................35
FOR RESPONSE COSTS AND CCVILPENALTY

9 XV. EMERGENCY RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
XVI. PAYMENTS

10 XVII. SUPPLEMENTAL ENVIRONMENTAL PROJECT. . . . . . . . . . . . . . . . . . . . . . . . . . . .40

.....................37

XViD. INDEMNIFICATION AND INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

11 XIX. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
XX. DISPUTE RESOLUTION ............................................... 49

12 XXI. STIPULATED PENALTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
XXII. COVENANTS NOT TO SUE BY PLAINTIFF ................................ 60

13 XXiD. COVENANTS BY SETTLING DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION ................... 65

14 XXV. ACCESS TO INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
XXVI. RETENTION OF RECORDS ........................................... 68

15 XXVII. NOTICES AND SUBMISSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
XXViD. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 16 XXIX. RETENTION OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

XXX. APPENDICES ..................................................... 71

17 XXXI. COMMUITY RELA nONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
XXXII. MODIFICATION .................................................. 72

18 XXXiD. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT. . . . . . . . . . . . . . . . . . . . 73 XXXIV. SIGNATORIES/SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73

19 XXV. FINAL JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
20
21

22
23

24
25

26 27

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 2 of 28

1

i. BACKGROUND
A. On July 8,2004, the United States of America ("United States"), on behalf of

2
3

the

Administrator of the United States Environmental Protection Agency ("EP A"), filed a complaint
in this matter pursuant to Sections 106 and 107 of

4
5

the Comprehensive Environmental Response,
the

Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607. By Order of

6
7
8

Court, the United States' complaint was consolidated with a complaint filed by Settling Defendants Crane Co. and Unidynamics/Phoenix, Inc. against the United States and related

parties with respect to the Site under the consolidated caption, Crane Co. et at. v. United States et
at., CIV 03-2226-PHX-ROS, CIV 04-1400-PHX-ROS (Consolidated).

9
10
11

B. The United States in its complaint seeks, inter alia: (1) reimbursement of costs
incurred and to be incurred by EP A and the Department of Justice for response actions at the

12
13

Phoenix-Goodyear Airport (North) Superfud Site ("PGA-North Site") in Goodyear, Arzona,
together with accrued interest; (2) performance of studies and response work by the Settling

14
15

Defendants at the Site consistent with the National Contingency Plan, 40 C.F.R. Par 300 (as
amended) ("NCP"); (3) compliance by Settling Defendant Unidynamics/Phoenix, Inc. with the
terms of two unilateral administrative orders issued by EP A directing Unidynamics/Phoenix, Inc.

16
17 18

to perform remedial design and remedial action at the Site; and (4) civil penalties pursuant to

Section 106(b)(1) ofCERCLA and punitive damages pursuant to Section 107(c)(3) ofCERCLA
for Settling Defendant Unidynamics/Phoenix, Inc.'s failure to comply with the terms of

19

the

20
21

unilateral administrative orders.
C. In accordance with the NCP and Section 121(f)(I)(F) ofCERCLA, 42 U.S.C.

22
23

§ 9621 (f)(1 )(F), prior to entering into this Consent Decree, EP A notified the State of Arzona
(the "State") of

negotiations with potentially responsible parties regarding the implementation of

24
25

the remedial design and remedial action for the Site, and EP A has provided the State with an

opportunity to participate in such negotiations and be a party to this Consent Decree.
D. In accordance with Section 122G)(1) ofCERCLA, 42 U.S.c. § 9622(j)(1), prior to

26 27

entering into this Consent Decree, EP A notified the National Oceanic and Atmospheric

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 3 of 28

1 Administration and the Department of the Interior of negotiations with potentially responsible
2 parties regarding the release of

hazardous substances that may have resulted in injury to the

3 natural resources under Federal trusteeship and encouraged the trustees to participate in the
4 negotiation of this Consent Decree.

5 E. The defendants that have entered into this Consent Decree ("Settling Defendants")

6 do not admit any liability to the Plaintiff arising out of the transactions or occurrences alleged in
7 the complaint, nor do they acknowledge that the release or threatened release of

hazardous

8 substance(s) at or from the Site constitutes an imminent or substantial endangerment to the

9 public health or welfare or the environment.

10 F. On September 8,1983, pursuant to Section 105 ofCERCLA, 42 U.S.C. § 9605,

11 EP A added the PGA-North Site, plus additional parcels located nearby, to the National Priorities

12 List set forth at 40 C.F.R. Part 300, Appendix B, as the Litchfield Airport Area Superfund Site.

13 G. From 1984 to 1989, pursuant to administrative orders by and agreements with
14 EP A, Settling Defendant Unidynamics/Phoenix, Inc. performed a remedial investigation and
15 feasibility study ("RIS") for the PGA-North Site. Unidynamics/Phoenix, Inc. submitted a draft

16 RIS Report to EPA in May 1989. On June 7,1989, EPA issued the final RIS Report.
17 H. Pursuant to Section 117 ofCERCLA, 42 U.S.c. § 9617, on

June 7,1989, EPA

18 published notice of the completion of the FS and of the proposed plan for remedial action. EP A

19 provided an opportunity for written and oral comments from the public on the proposed plan for
20 remedial action.
21 i. On September 26, 1989, EP A issued a Record of

Decision ("ROD") specifyng
hazardous substances at the Site. The ROD

22 the remedial actions selected to address releases of

23 includes EP A's explanation for any significant differences between the final plan and the
24 proposed plan as well as a responsiveness summary to the public comments. Notice of

the final

25 plan was published in accordance with Section 117(b) of CERCLA.
26 J. Subsequent to issuance of

the ROD, pursuant to 40 C.F.R. § 300.435(c)(2)(i),

27 EPA has issued five Explanations of

Significant Differences ("ESDs"), in Januar 1991, May

1993, December 1995, March 1998, and November 2003, reflecting changes to the remedy for
2

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 4 of 28

1 Site.

2 K. On September 10, 1990, under the authority vested in the President of the United
3 States by Section 106(a) ofCERCLA, 42 U.S.c. § 9606(a), EPA issued a unilateral
4 administrative order, followed on October 10, 1990 by an amended unilateral administrative

5 order (the "1990 Order"), to Settling Defendant Unidynamics/Phoenix, Inc. requiring

6 performance of remedial design and remedial action for the groundwater and soil vadose zone
7 remedies selected in the ROD for the PGA-North Site.

8 L. On January 2,2003, EPA issued a second unilateral administrative order (the
9 "2003 Order") under the authority vested in the President of

the United States by Section 106(a)

10 ofCERCLA, 42 U.S.c. § 9606(a), to Settling Defendant Unidynamics/Phoenix, Inc. requiring
11 development of an SVE Redesign Work Plan, collection of data to establish the current
12 distribution of contamination to inform appropriate redesign of

the SVE system, and performance

13 of

start-up and operation and maintenance of

the SVE system consistent with the ROD and the

14 November 2003 ESD.

15M. Based on the information presently available to EP A, EP A believes that the Work
16 will be properly and promptly conducted by the Settling Defendants if conducted in accordance

17 with the requirements of this Consent Decree and its appendices.
18 N. Solely for the purposes of

Section 113(j) ofCERCLA, the Remedial Action

19 selected by the ROD and the ESDs and the Work to be performed by the Settling Defendants

20 shall constitute a response action taken or ordered by the President.

21 O. The Parties recognize, and the Court by entering this Consent Decree finds, that
22 this Consent Decree has been negotiated by the Parties in good faith and implementation of this
23 Consent Decree will expedite the cleanup of the Site and wil avoid prolonged and complicated

24 litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public

25 interest.
26 NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
27

3

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 5 of 28

1 II. JURISDICTION
2 1. This Court has jursdiction over the subj ect matter of this action pursuant to 28
3 U.S.c. §§ 1331 and 1345, and 42 U.S.c. §§ 9606, 9607, and 9613(b). This Court also has
4 personal jurisdiction over the Settling Defendants. Solely for the purposes of this Consent

5 Decree and the underlying complaint, Settling Defendants waive all objections and defenses that

6 they may have to jurisdiction of the Court or to venue in this District. Settling Defendants shall

7 not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce
8 this Consent Decree.

9 il. PARTIES BOUND
10 2. This Consent Decree applies to and is binding upon the United States and upon
1 1 Settling Defendants and their successors and assigns. Any change in ownership or corporate

12 status of a Settling Defendant including, but not limited to, any transfer of assets or real or
13 personal property, shall in no way alter such Settling Defendant's responsibilities under this
14 Consent Decree.
15 3. Settling Defendants shall provide a copy of

this Consent Decree to each contractor

16 hired to perform the Work (as defined below) required by this Consent Decree and to each person
17 representing any Settling Defendant with respect to the Site or the Work and shall condition all

18 contracts entered into hereunder upon performance of the Work in conformity with the terms of
19 this Consent Decree. Settling Defendants or their contractors shall provide written notice of

the

20 Consent Decree to all subcontractors hired to perform any portion of the Work required by this
21 Consent Decree. Settling Defendants shall nonetheless be responsible for ensuring that their

22 contractors and subcontractors perform the Work contemplated herein in accordance with this

23 Consent Decree. With regard to the activities undertaken pursuant to this Consent Decree, each
24 contractor and subcontractor shall be deemed to be in a contractual relationship with the Settling
25 Defendants within the meaning of

Section 107(b)(3) ofCERCLA, 42 U.S.C. § 9607(b)(3).

26 IV. DEFINITIONS
27 4. Unless otherwise expressly provided herein, terms used in this Consent Decree

which are defined in CERCLA or in regulations promulgated under CERCLA shall have the
4

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 6 of 28

1 meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are
2 used in this Consent Decree or in the SOW attached hereto and incorporated hereunder, the

3 following definitions shall apply:

4 "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and
5 Liability Act of 1980, as amended, 42 U.S.c. §§ 9601 et seq.

6 "Complaint" shall mean the Complaint filed by the United States against

7 Unidynamics/Phoenix, Inc. and Crane Co. on July 8, 2004, in the United States District Court for
8 the District of Arzona, captioned United States v. Unidynamics/Phoenix, Inc. et at., No. CV-04-

9 1400-PHX-JAT (D. Arz.).

10 "Consent Decree" shall mean this Decree and all appendices attached hereto (listed in
1 1 Section XX). In the event of conflict between this Decree and any appendix, this Decree shall

12 control.
13 "Day" shall mean a calendar day unless expressly stated to be a working day. "Working

14 day" shall mean a day other than a Saturday, Sunday, or federal holiday. In computing any
15 period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday,
16 or federal holiday, the period shall run until the close of business of

the next working day.

17 "Effective Date" shall be the effective date of this Consent Decree as provided in
18 Paragraph 129.
19 "EP A" shall mean the United States Environmental Protection Agency and any successor

20 deparments or agencies of the United States.
21 "ESDs" shall mean the Explanations of

Significant Differences relating to the Phoenix-

22 Goodyear Airport Superfund Site issued by EP A in January 1991, May 1993, December 1995,

23 March 1998, and November 2003, and all attachments thereto. The 1993 and 2003 ESDs are

24 attached to this Consent Decree as Appendix B.
25 "Future Response Costs" shall mean all costs, including, but not limited to, direct and

26 indirect costs, that the United States incurs in reviewing or developing plans, reports, and other
27 items pursuant to this Consent Decree, verifying the Work, or otherwise implementing,

overseeing, or enforcing this Consent Decree, including, but not limited to, payroll costs,
5

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 7 of 28

1 contractor costs, travel costs, laboratory costs, the costs incurred pursuant to Sections VII, IX

2 (including, but not limited to, the cost of attorney time and any monies paid to secure access

3 and/or to secure or implement institutional controls including, but not limited to, the amount of
4 just compensation), XV, and Paragraph 108 of Section XXII. Future Response Costs shall also
5 include all Interim Response Costs, and all Interest on those Past Response Costs Settling

6 Defendants have agreed to reimburse under this Consent Decree that has accrued pursuant to 42
7 U.S.C. § 9607(a) during the period from December 31,2004 to the Effective Date.
8 "Interim Response Costs" shall mean all costs, including direct and indirect costs,
9 (a) paid by the United States in connection with the Site between October 1,2004 and the

10 Effective Date, or (b) incurred by the United States prior to the Effective Date but paid after that

11 date.
12
13

"Interest" shall mean interest at the rate specified for interest on investments of the EP A
Hazardous Substance Superfud established by 26 U.S.c. § 9507, compounded annually

on

14
15

October 1 of each year, in accordance with 42 U.S.c. § 9607(a). The applicable rate of

Interest

shall be the rate in effect at the time the Interest accrues. The rate of

Interest is subject to change

16
17 18

on October 1 of each year.

"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42
U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.

19

20
21

"Operation and Maintenance" or "O&M" shall mean all activities required to maintain
the effectiveness of the Remedial Action as required under any Operation and Maintenance Plan
approved or developed by EP A pursuant to this Consent Decree and the Statement of Work.

22
23

"Paragraph" shall mean a portion of this Consent Decree identified by an arabic numeral
or an upper case letter.

24
25

"Parcels Band C" shall mean those parts of the Site that are described in Appendix H.
"Parties" shall mean the United States and the Settling Defendants.

26
27

"Past Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States paid at or in connection with the Site through September 30,
6

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 8 of 28

1 2004, plus Interest on all such costs which has accrued pursuant to 42 U.S.c. § 9607(a) through

2 December 31, 2004.
3 "Performance Standards" shall mean the cleanup standards and other measures of
4 achievement of the goals of

the Remedial Action, as set forth in the ROD, the ESDs, and the

5 SOW, and as established following investigation conducted pursuant to the SOW.
6 "Plaintiff' shall mean the United States.

7 "RCRA" shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901 et
8 seq. (also known as the Resource Conservation and Recovery Act).

9 "Record of Decision" or "ROD" shall mean the EP A Record of Decision relating to the

10 Phoenix-Goodyear Airport Superfund Site signed on September 26, 1989, by the Regional
11 Administrator, EP A Region IX, or his/her delegate, and all attachments thereto. The ROD is
12 attached to this Consent Decree as Appendix A.

13 "Remedial Action" shall mean those activities, except for Operation and Maintenance, to
14 be undertaken by the Settling Defendants to implement the ROD and the ESDs, and any

other

15 response actions selected by EP A in the future, in accordance with the SOW and any other plans
16 approved by EP A.

17 "Remedial Design" shall mean those activities to be undertaken by the Settling
18 Defendants to develop the final plans and specifications for the Remedial Action pursuant to the
19 SOW and other plans approved by EP A.

20 "Section" shall mean a portion ofthis Consent Decree identified by a Roman numeraL.
21 "Settling Defendants" shall mean Unidynamics/Phoenix, Inc. ("UP

I") and Crane Co.

22 "Settling Defendants' Related Persons" shall mean former or current offcers, directors,
23 or employees of Settlng Defendants.

24 "Site" shall mean, for purposes of this Consent Decree, the northern portion of the
25 Phoenix-Goodyear Airport Superfund Site, also known as the Phoenix-Goodyear Airport (North)

26 Superfund Site, located in Goodyear, Marcopa County, Arzona, including the area of

27 contamination within the Unidynamics Property and the contaminant plumes, and all areas where
hazardous substances disposed of at the northern portion of

the Phoenix-Goodyear Airport

7

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 9 of 28

1 Superfund Site have come to be located.
2 "State" shall mean the State of Arzona.
3 "Statement of Work" or "SOW" shall mean the statement of work for implementation of
4 the pre-remedial investigation, Remedial Design, Remedial Action, and Operation and

5 Maintenance at the Site, as set forth in Appendix C to this Consent Decree, and any
6 modifications thereto made in accordance with this Consent Decree.

7 "Supervising Contractor" shall mean the principal contractor retained by the Settling

8 Defendants to supervise and direct the implementation of the Work under this Consent Decree.
9 "Unidynamics Property" shall mean the property currently owned by

10 Unidynamics/Phoenix, Inc. located at 102 South Litchfield Road, Goodyear, Marcopa County,

11 Arzona, and the additional property previously owned by Unidynamics/Phoenix, Inc. durng
12 active manufacturing operations, which collective Property is bounded by Van Buren Road to the

13 north, the Union Pacific Railway to the west, and Litchfield Road to the east. The Unidynamics

14 Property is depicted generally on the map attached to this Consent Decree as Appendix D.

15 "Unilateral Administrative Orders" or "UAOs" shall mean the EP A Amended Unilateral
16 Administrative Order, EPA Docket No. 90-20, issued to Unidynamics/Phoenix, Inc. on October
17 10, 1990, and the EP A Unilateral Administrative Order, EP A Docket No. 9-2003-01, issued to

18 Unidynamics/Phoenix, Inc. on January 2,2003.

19 "United States" shall mean the United States of America.
20 "Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of
21 CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33),42

22 U.S.C. § 9601(33); (3) any "solid waste" under Section 1004(27) ofRCRA, 42 U.S.c.
23 § 6903(27); and (4) any "hazardous material" under Arz. Rev. Stat. 28-5201.

24 "Work" shall mean all activities Settling Defendants are required to perform under this
25 Consent Decree, except those required by Section XXVI (Retention of Records).

26 V. GENERAL PROVISIONS
27 5. Obiectives of the Parties. The objectives of

the Parties in entering into this

Consent Decree are to protect public health or welfare or the environment at the Site by the
8

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 10 of 28

1 design and implementation of response actions at the Site by the Settlng Defendants, to
2 reimburse response costs of the Plaintiff, and to resolve the claims of Plaintiff against Settling

3 Defendants as provided in this Consent Decree.
4 6. Commitments by Settling Defendants.
5 a. Settling Defendants shall finance and perform the Work in accordance

6 with this Consent Decree, the ROD, the ESDs, the SOW, and all work plans and other plans,
7 standards, specifications, and schedules set forth herein or developed by Settlng Defendants and

8 approved by EP A pursuant to this Consent Decree. Settlng Defendants shall also reimburse the
9 United States for Past Response Costs and Future Response Costs as provided in this Consent
10 Decree.

11 b. Settling Defendant UPI shall pay a civil penalty to the United States and

12 perform a supplement environmental project to resolve the United States' allegations in the
13 Complaint that UPI failed to comply with the requirements of

the UAOs regarding performance

14 of

remedial action at the Site. Settlng Defendant UPI shall comply with the UAOs, and shall

15 perform all work required under the UAOs in accordance with the terms of

the UAOs, until such

16 time as the U AOs are superseded by this Consent Decree pursuant to Paragraph 121.

17 c. The obligations of Settling Defendants to finance and perform the Work

18 and to reimburse the United States for Past Response Costs and Future Response Costs under this

19 Consent Decree are joint and severaL.
20 7. Compliance With Applicable Law. All activities undertaken by Settling

21 Defendants pursuant to this Consent Decree shall be performed in accordance with the
22 requirements of all applicable federal and state laws and regulations. Settling Defendants must

23 also comply with all applicable or relevant and appropriate requirements of all federal and state
24 environmental

laws as set forth in the ROD, ESDs, and the SOW. The activities conducted

25 pursuant to this Consent Decree, if approved by EP A, shall be considered to be consistent with
26 the NCP.

27 8. Permits.
a. As provided in Section 121(e) ofCERCLA and Section 300.400(e) of

the

9

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 11 of 28

1 NCP, no permit shall be required for any portion of

the Work conducted entirely on-site (i.e.,

2 within the areal extent of contamination or in very close proximity to the contamination and

3 necessary for implementation of the Work). Where any portion of the Work that is not on-site
4 requires a federal or state permit or approval, Settling Defendants shall submit timely and

5 complete applications and take all other actions necessary to obtain all such permits or approvals.
6 b. The Settling Defendants may seek relief under the provisions of Section
7 XIX (Force Majeure) of this Consent Decree for any delay in the performance of

the Work

8 resulting from a failure to obtain, or a delay in obtaining, any permit required for the Work.
9 c. This Consent Decree is not, and shall not be construed to be, a permit

10 issued pursuant to any federal or state statute or regulation.
11 9. Notice to Successors-in- Title.
12 a. With respect to any property owned or controlled by any Settling

13 Defendant that is located within the Site, within 15 days after the Effective Date, the Settling
14 Defendant shall submit to EP A for review and approval a notice to be fied with the Recorder's

15 Offce, Maricopa County, State of Arzona, which shall provide notice to all successors-in-title
16 that the property is part of the Site, that EP A selected a remedy for the Site on September 26,
17 1989, and that potentially responsible parties have entered into a Consent Decree requiring
18 implementation of

the remedy. Such notice(s) shall identify the United States District Court in

19 which the Consent Decree was filed, the name and civil action number of this case, and the date

20 the Consent Decree was entered by the Court. The Settling Defendant(s) shall record the
21 notice(s) within 10 days of EPA's approval of

the notice(s). The Settling Defendant(s) shall

22 provide EP A with a certified copy of the recorded notice( s) within 10 days of recording such

23 notice(s).
24 b. At least 30 days prior to the conveyance of any interest in property located

25 within the Site including, but not limited to, fee interests, leasehold interests, and mortgage
26 interests, the Settling Defendant(s) conveying the interest shall give the grantee written notice of

27 (i) this Consent Decree, (ii) any instrument by which an interest in real property has been
conveyed that confers a right of access to the Site (hereinafter referred to as "access easements")
10

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 12 of 28

1 pursuant to Section IX (Access and Institutional Controls), and (iii) any instruent by which an

2 interest in real property has been conveyed that confers a right to enforce restrictions on the use
3 of such property (hereinafter referred to as "restrictive easements") pursuant to Section IX

4 (Access and Institutional Controls). At least 30 days prior to such conveyance, the Settling
5 Defendant(s) conveying the interest shall also give written notice to EP A and the State ofthe

6 proposed conveyance, including the name and address of the grantee, and the date on which
7 notice of

the Consent Decree, access easements, and/or restrictive easements was given to the

8 grantee.

9 c. In the event of any such conveyance, the Settling Defendant's obligations

10 under this Consent Decree, including, but not limited to, its obligation to provide or secure access

1 1 and institutional controls, as well as to abide by such institutional controls, pursuant to Section
12 IX (Access and Institutional Controls) of

this Consent Decree, shall continue to be met by the

13 Settling Defendant(s). In no event shall the conveyance release or otherwise affect the liability of
14 the Settling Defendant(s) to comply with all provisions of

this Consent Decree, absent the prior
perform

15 written consent ofEPA. If

the United States so approves in wrting, the grantee may

16 some or all of the Work under this Consent Decree.

17 VI. PERFORMANCE OF THE WORK By SETTLING DEFENDANTS
18 10. Selection of Supervising Contractor.
19 a. All aspects of

the Work to be performed by Settling Defendants pursuant

20 to Sections VI (Performance of

the Work by Settling Defendants), VII (Remedy Review), Vil

21 (Quality Assurance, Sampling and Data Analysis), and XV (Emergency Response) ofthis
22 Consent Decree shall be under the direction and supervision of

the Supervising Contractor, the

23 selection of

which shall be subject to disapproval by EP A, after a reasonable opportunity for

24 review and comment by the State. Within 10 days after the lodging of this Consent Decree,
25 Settling Defendants shall notify EP A and the State in writing of

the name, title, and

26 qualifications of any contractor proposed to be the Supervising Contractor. With respect to any
27 contractor proposed to be Supervising Contractor, Settling Defendants shall demonstrate that the
proposed contractor has a quality system that complies with ANSI! ASQC E4-1994,
11

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 13 of 28

1 "Specifications and Guidelines for Quality Systems for Environmental Data Collection and

2 Environmental Technology Programs," (American National Standard, Januar 5, 1995), by
3 submitting a copy of

the proposed contractor's Quality Management Plan (QMP). The QMP

4 shall be prepared in accordance with "EP A Requirements for Quality Management Plans (QA/-

5 2)" (EP N240/B-01l002, March 2001) or equivalent documentation as determined by EP A. EP A
6 will issue a notice of disapproval or an authorization to proceed. If at any time thereafter,

7 Settling Defendants propose to change a Supervising Contractor, Settling Defendants shall give
8 such notice to EP A and the State and must obtain an authorization to proceed from EP A, after a

9 reasonable opportunity for review and comment by the State, before the new Supervising

10 Contractor performs, directs, or supervises any Work under this Consent Decree.
11 b. If EP A disapproves a proposed Supervising Contractor, EP A will notify

12 Settling Defendants in writing. Settling Defendants shall submit to EP A and the State a list of
13 contractors, including the qualifications of each contractor, that would be acceptable to them
14 within 30 days of receipt ofEP A's disapproval of

the contractor previously proposed. EP A will

15 provide written notice of the names of any contractor( s) that it disapproves and an authorization
16 to proceed with respect to any of the other contractors. Settling Defendants may select any

17 contractor from that list that is not disapproved and shall notify EP A and the State of the name of
18 the contractor selected within 21 days of EP A's authorization to proceed.
19 c. If EP A fails to provide written notice of its authorization to proceed or

20 disapproval as provided in this Paragraph and this failure prevents the Settlng Defendants from

21 meeting one or more deadlines in a plan approved by the EP A pursuant to this Consent Decree,
22 Settling Defendants may seek relief under the provisions of

Section XIX (Force Majeure) hereof.

23 11. Work to Be Performed. The Settling Defendants shall implement and complete
24 the Work obligations set forth in the Statement of

Work. All Work shall be performed in

25 accordance with the NCP and all amendments thereto that are effective and applicable to any

26 activity undertaken pursuant to this Consent Decree, and also in accordance with the
27 Performance Standards, specifications, workplans, deliverables, and schedules of completion set
forth in, or approved by EP A pursuant to, this Consent Decree and the Statement of Work. All
12

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 14 of 28

Work shall be performed by qualified employees or contractors.
2 12. The Settling Defendants shall continue to implement the Remedial Action and

3 O&M until the Performance Standards are achieved and for so long thereafter as is otherwise
4 required under this Consent Decree.

5 13. Petitions by Settling Defendants for Potential Modification or Fundamental

6 Change to Selected Remedial Actions.
7 If Settling Defendants believe that information collected during the investigations

8 conducted pursuant to the Consent Decree and the attached SOW supports a modification to the

9 implementation of, or a fundamental change to, the remedy selected in the ROD, Settling
10 Defendants may petition EP A to consider specific modifications or changes to the selected

11 remedy. Any proposed modifications or fundamental changes to the selected remedy shall be
12 submitted to EP A as an addendum to the relevant investigation report for the particular media as
13 set forth under Tasks 2.7,5.7,8.4,9.3, or 10.11 of

the SOW, and such petition shall include all

14 information and analyses supporting the proposed modifications. Settling Defendants' petition
15 shall not be deemed complete until all such information and analyses are submitted to EP A.

16 EP A, in its sole discretion, will either accept or deny Settling Defendants' petition based on a

17 review of the information submitted in the relevant Report and other relevant information.
18 Settlng Defendants shall not have the right to challenge or to seek judicial review of, either
19 through the Dispute Resolution provisions of the Consent Decree or otherwise, EP A's

20 determination with respect to Settling Defendants' petition(s). Submission by Settling
21 Defendants of a petition for modification or alteration of the remedy shall not relieve Settling
22 Defendants of

their obligations under this Consent Decree and the attached SOW to perform all

23 required activities consistent with the existing remedy, unless EP A provides written direction to

24 discontinue such activities. IfEP A accepts Settling Defendants' petition, EP A and Settling

25 Defendants will proceed in accordance with Paragraph 14 or Paragraphs 18-21, as applicable. If
26 EPA denies the petition, EPA wil provide written notice of, and a statement of

the reasons for,

27 the denial to Settling Defendants.
14. Modification of the SOW or Related Work Plans.
13

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 15 of 28

1 a. If EP A makes a written determination, based on a petition by Settling

2 Defendants pursuant to Paragraph 13 above or EP A's evaluation of other information, that
3 modification to the work specified in the SOW and/or in work plans developed pursuant to the

4 SOW is necessary to achieve and maintain the Performance Standards or to carr out and
5 maintain the effectiveness of the remedy set forth in the ROD and the ESDs, EP A may require
6 that such modification be incorporated into the SOW and/or such work plans, provided, however,

7 that a modification may only be required pursuant to this Paragraph to the extent that it is
8 consistent with the scope of

the remedy selected in the ROD and ESDs.

9 b. For the puroses of

this Paragraph 14 and Paragraph 51 only, the "scope of

10 the remedy selected in the ROD and the ESDs" is: the characterization and removal of

1 1 contaminants from groundwater and from soil and vadose zones using the treatment methods and

12 technologies identified in the ROD and the ESDs as the preferred alternatives for the Site.
13 c. If Settling Defendants object to any modification determined by EP A to be

14 necessar pursuant to this Paragraph, they may seek dispute resolution pursuant to Section XX

15 (Dispute Resolution), Paragraph 88 (record review). The SOW and/or related work plans shall

16 be modified in accordance with final resolution of the dispute.
17 d. Settling Defendants shall implement any work required by any

18 modifications incorporated into the SOW and/or in work plans developed pursuant to the SOW

19 in accordance with this Paragraph.
20 e. Nothing in this Paragraph shall be construed to limit EP A's authority to

21 require performance of further response actions as otherwise provided in this Consent Decree.
22 15. Settling Defendants acknowledge and agree that nothing in this Consent Decree,

23 the SOW, or any other work plans or deliverables constitutes a warranty or representation of any
24 kind by Plaintiff

that compliance with the work requirements set forth in the SOW and the work

25 plans will achieve the Performance Standards.
26 16. a. Settling Defendants shall, prior to any off-Site shipment of

Waste Material

27 from the Site to an out-of-state waste management facility, provide written notification to the

appropriate state environmental offcial in the receiving facility's state and to the EP A Project
14

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 16 of 28

1 Coordinator of such shipment of Waste MateriaL. However, this notification requirement shall
2 not apply to any off-Site shipments when the total volume of all such shipments wil not exceed

3 10 cubic yards.

4 (1) The Settling Defendants shall include in the written notification

5 the following information, where available: (1) the name and location of the facility to which the
6 Waste Material is to be shipped; (2) the type and quantity of the Waste Material to be shipped;
7 (3) the expected schedule for the shipment ofthe Waste Material; and (4) the method of
8 transportation. The Settling Defendants shall notify the state in which the planed receiving
9 facility is located of

major changes in the shipment plan, such as a decision to ship the Waste

10 Material to another facility within the same state, or to a facility in another state.
11 (2) The identity of the receiving facility and state wil be determined
12 by the Settling Defendants following the award of

the contract for Remedial Action construction.

13 The Settling Defendants shall provide the information required by Paragraph 16.a(l) as soon as

14 practicable after the award ofthe contract and before the Waste Material is actually shipped.
15 b. Before shipping any hazardous substances, pollutants, or contaminants

16 from the Site to an off-site location, Settling Defendants shall obtain EPA's certification that the
17 proposed receiving facility is operating in compliance with the requirements of CERCLA Section
18 121(d)(3) and 40 C.F.R. § 300.440. Settling Defendants shall only send hazardous substances,

19 pollutants, or contaminants from the Site to an off-site facility that complies with the
20 requirements of the statutory provision and regulations cited in the preceding sentence.

21 VII. REMEDY REvIEW
22 17. Periodic Review. Settling Defendants shall conduct any studies and
23 investigations as requested by EP A in order to permit EP A to conduct reviews of

whether the

24 Remedial Action is protective of

human health and the environment at least every five years as

25 required by Section 121(c) ofCERCLA and any applicable regulations.
26 18. EP A Selection of Further Response Actions. If EP A determines, at any time, that
27 the Remedial Action is not protective of

human health and the environment, EP A may select

further response actions for the Site in accordance with the requirements of CERCLA and the
15

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 17 of 28

1 NCP.
2 19. Opportunity To Comment.. Settling Defendants and, if

required by Sections

3 113(k)(2) or 117 of CERCLA, the public will be provided with an opportunity to comment on
4 any further response actions proposed by EP A as a result of the review conducted pursuant to

5 Section 121(c) ofCERCLA and to submit written comments for the record during the comment
6 period.

7 20. Settlng Defendants' Obligation To Perform Further Response Actions. IfEPA
8 selects further response actions for the Site pursuant to Paragraph 18, the Settling Defendants

9 shall undertake such further response actions as EP A determines are necessary. Settlng

10 Defendants may invoke the procedures set forth in Section XX (Dispute Resolution) to dispute
11 (1) EP A's determination that the Remedial Action is not protective of

human health and the

12 environment, or (2) EP A's selection of the fuher response actions. Disputes pertaining to the

13 whether the Remedial Action is protective or to EP A's selection of further response actions shall

14 be resolved pursuant to Paragraph 88 (record review).
15 21. Submissions of Plans. If Settling Defendants are required to perform further

16 response actions pursuant to Paragraph 20, they shall submit a plan for such work to EP A for

17 approval in accordance with the procedures set forth in Section VI (Performance of the Work by

18 Settling Defendants) and the SOW, including, as applicable, SOW Tasks 12.0, 13.0, and 14.0,
19 and shall implement the plan approved by EP A in accordance with the provisions of this Consent
20 Decree and the SOW.

21 Vil. QUALITY ASSURANCE. SAMPLING. AND DATA ANALYSIS
22 22. a. Settling Defendants shall use quality assurance, quality control, and chain

23 of custody procedures for all treatability, design, compliance and monitoring samples in

24 accordance with "EP A Requirements for Quality Assurance Project Plans (QA/5)" 25 (EPN240/B-01l003, March 2001), "Guidance for Quality Assurance Project Plans (QNG-5)"
26 (EPN600/R-98/018, February 1998), and subsequent amendments to such guidelines upon
27 notification by EP A to Settling Defendants of such amendment. Amended guidelines shall apply

only to procedures conducted after such notification. Prior to the commencement of any
16

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 18 of 28

1 monitoring project under this Consent Decree, Settling Defendants shall submit to EP A for
2 approval, after a reasonable opportunity for review and comment by the State, a Quality

3 Assurance Project Plan ("QAPP") that is consistent with the SOW, the NCP, and applicable

4 guidance documents. If relevant to the proceeding, the Parties agree that validated sampling data
5 generated in accordance with the QAPP( s) and reviewed and approved by EP A shall be
6 admissible as evidence, without objection, in any proceeding under this Consent Decree. Setting

7 Defendants shall ensure that EP A personnel and its authorized representatives are allowed access
8 at reasonable times to all

laboratories utilized by Settling Defendants in implementing this

9 Consent Decree. In addition, Settling Defendants shall ensure that such laboratories shall
10 analyze all samples submitted by EP A pursuant to the QAPP for quality assurance monitoring.

11 Settling Defendants shall ensure that the laboratories they utilize for the analysis of samples
12 taken pursuant to this Decree perform all analyses according to accepted EP A methods.
13 Accepted EPA methods consist of

those methods which are documented in the Contract Lab
Work

14 Program Statement of

for Inorganic Analysis, ILM05.3 (February 2004), Contract Lab

15 Program Statement of

Work

for Organic Analysis, OLM04.3 (August 2003), and any
the implementation of

16 amendments made thereto during the course of

this Decree; however,

17 upon approval by EP A, after opportunity for review and comment by the State, the Settling

18 Defendants may use other analytical methods which are as stringent as or more stringent than the
19 CLP- approved methods. Settling Defendants shall ensure that all

laboratories they use for

20 analysis of samples taken pursuant to this Consent Decree participate in an EP A or EP A-

21 equivalent QNQC program. Settling Defendants shall only use laboratories that have a
22 documented Quality System which complies with ANSI! ASQC E4-1994, "Specifications and

23 Guidelines for Quality Systems for Environmental Data Collection and Environmental
24 Technology Programs" (American National Standard, January 5,1995), and "EPA Requirements
25 for Quality

Management Plans (QA/-2)" (EPN240/B-01l002, March 2001), or equivalent

26 documentation as determined by EP A. EP A may consider laboratories accredited under the
27 National Environmental Laboratory Accreditation Program (NLAP) as meeting the Quality

System requirements. Settling Defendants shall ensure that all field methodologies utilized in
17

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 19 of 28

1 collecting samples for subsequent analysis pursuant to this Decree wil be conducted in

2 accordance with the procedures set forth in the QAPP approved by EP A.

3 23. Upon request, the Settling Defendants shall allow split or duplicate samples to be
4 taken by EP A or their authorized representatives. Settling Defendants shall notify EP A not less

5 than 28 days in advance of any sample collection activity unless otherwise set forth in the SOW
6 or unless shorter notice is agreed to by EP A. In addition, EP A shall have the right to take any

7 additional samples that EP A deems necessary. Upon request, EP A shall allow the Settling
8 Defendants to take split or duplicate samples of any samples it takes as part of the Plaintiff s
9 oversight of the Settling Defendants' implementation of

the Work and, upon request, shall make

10 available to Settling Defendants a copy of any validated results of analyses made of such samples
11 and the associated validation package. Nothing in this Paragraph shall require EP A to complete

12 the validation process for any particular analytical results.
13 24. Settling Defendants shall submit to EPA three (3) copies of the results of

all

14 sampling and/or tests or other data obtained or generated by or on behalf of Settling Defendants
15 with respect to the Site and/or the implementation of

this Consent Decree unless EPA agrees

16 otherwise.
17 25. Notwithstanding any provision of

this Consent Decree, the United States hereby

18 retains all of its information gathering and inspection authorities and rights, including
19 enforcement actions related thereto, under CERCLA, RCRA, and any other applicable statutes or

20 regulations.

21 IX. ACCESS AND INSTITUTIONAL CONTROLS
22 26. If

the Site, or any other property where access and/or land/water use restrictions

23 are needed to implement this Consent Decree, is owned or controlled by the Settling Defendants,

24 the Settlng Defendants shall:
25 a. commencing on the date of lodging of this Consent Decree, provide the

26 United States and its representatives, including EP A and its contractors, with access at all
27 reasonable times to the Site, or such other property, for the purpose of conducting any activity

related to this Consent Decree including, but not limited to, the following activities:
18

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 20 of 28

(1) Monitoring the Work;
2
3
(2) Verifying any data or information submitted to the United States;

(3) Conducting investigations relating to contamination at or near the
Site;
(4) Obtaining samples;
(5) Assessing the need for, planning, or implementing additional

4
5

6
7
8

response actions at or near the Site;
(6) Assessing implementation of quality assurance and quality control

9 10
11

practices as defined in the approved Quality Assurance Project Plans;

(7) Implementing the Work pursuant to the conditions set forth in
Paragraph 108 of this Consent Decree;
(8) Inspecting and copying records, operating logs, contracts, or other

12
13

documents maintained or generated by Settling Defendants or their agents, consistent
with Section XXV (Access to Information);
(9) Assessing Settling Defendants' compliance with this Consent

14
15

16 17
18

Decree; and

(10) Determining whether the Site or other property is being used in a
manner that is prohibited or restricted, or that may need to be prohibited or restricted, by
or pursuant to this Consent Decree.

19

20
21

The United States will make a reasonable effort to provide at least 24-hours advance notice to

Settling Defendants of its need to obtain access; provided, however, that failure to provide such
notice shall not be asserted by Settling Defendants as a basis for delaying or denying access.
b. commencing on the date oflodging ofthis Consent Decree, refrain from

22
23

24
25

using the Site, or such other property, in any manner that would interfere with or adversely affect
the implementation, integrty, monitoring, or protectiveness of

the remedial measures to be

26 27

performed pursuant to the ROD and the ESDs or any future response actions required by EP A.

Such use restrictions include, but are not limited to, the following:
(1) For all portions of

the Site other than Parcels Band C:
19

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 21 of 28

1

(a) Require disclosure of all

land/water use restrictions to all

2
3

occupants of the property.

(b) Inform EP A of the identities of all occupants of the
property and all changes in occupancy.
(c) Prohibit use or redevelopment ofthe Property for

4
5

6
7
8

residential use, use as a hospital, school for people aged 21 and under, or day care center, or other
uses likely to result in extended exposure to sensitive receptors.
(d) Allow the placement of Site access controls, such as

9

warning signs or other posted information, gates or fencing, and prohibit removal of, damage to,
interference with or circumvention of such controls.
( e) Prohibit setting, removal, interference with or alterations to

10
11

12
13

the grading, irrgation controls, vegetation, and surface water and drainage controls without EP A
approval.
(f) Prohibit soils excavation and removal or improvement of

14
15

areas of asphalt or concrete pavement without EP A approvaL.
(g) Require maintenance of existing and future foundations,

16 17
18

and prohibit the making of new openings in building floor slabs (except as authorized by EP A),

in areas underlain by impacted soils or Waste Materials and in soil gas noncompliance areas.
Require reporting to EP A of all cracks or damage in such foundations and require repair of such
cracks or damage in an expedited maner.
(h) Prohibit circumvention of indoor air handling and controls.
(i) Obtain prior written approval from EP A for all building or

19

20
21

22
23

site modifications on the Property.
(j) Prohibit making of

24
25

boreholes, foundation piles, or other

subsurface penetrations that could create conduits allowing Waste Materials to migrate to
groundwater.
(k) Prohibit use of septic tanks on the Property and require that

26
27

such tanks be decommissioned in accordance with local regulations.
20

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 22 of 28

1 (1) Prohibit use of the Property in any maner that may
2 interfere with or affect the investigation of contamination or the testing of treatment alternatives.

3 (m) Prohibit installation, closure, damage, blocking, or
4 otherwise obstructing monitoring points, including but not limited to groundwater monitoring
5 wells, soil gas probes, reservoir leachate collection wells, lysimeters, soil gas vents, and survey

6 monuments, except as authorized by EP A.

7 (n) Require proper labeling of groundwater monitoring wells,
8 soil gas probes, reservoir leachate collection wells, lysimeters, soil gas vents, and survey

9 monuments.

10 (0) Prohibit opening of and placement of objects into monitor
11 wells (except during routine monitoring and sampling conducted in accordance with an approved

12 plan).

13 (P) Prohibit use of the Property in any maner that may
14 interfere with or affect the integrty of the remedy or any of

its components as constructed

15 pursuant to the ROD and the ESDs.

16 (q) Prohibit shutting down or interfering with indoor air
17 contamination sensors or alarms, soil gas control modification systems, liquids recovery systems,

18 liquids treatment systems, and treated liquids storage facilities (except for routine maintenance
19 conducted in accordance with an approved plan).

20 (r) Require prior written approval from EP A before any new
21 excavation, grading, construction, or demolition may occur on the Property and compliance with
22 the following requirements to ensure that there is no off-site migration of harmful

levels of dust,

23 odors, or organic vapors, and to protect the health and welfare of on-site personnel and workers:

24 1. New construction shall be supported by appropriate
25 subsurface explorations and analytical

laboratory data to characterize the construction area for

26 the possible existence of impacted soils and Waste Materials.

27 11. Demolition work shall be supported by
characterization of

building contents and subsurface exploration and analytical data near the
21

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 23 of 28

1 building to characterize the demolition area for the possible existence of above-grade or below-

2 grade Waste Materials.

3 111. If impacted soils or Waste Materials are discovered
4 in the construction or demolition area, they shall be remediated or new buildings and structures

5 shall be appropriately designed to protect occupants.

6 iv. Prior to approval of any construction or demolition,
7 appropriate worker and public health and safety precautions, including but not limited to personal

8 protective equipment, dust control, safety plans, spil prevention and contingency plans, and
9 other forms of

worker protection, must be taken.

10 (2) For Parcels Band C:
11 (a) Require disclosure of all

land use and water use restrictions

12 to all occupants of the Property.
13 (b) Inform EP A of all changes in occupancy and the identity

14 and business activity of any new occupants.
15 (c) Prohibit use or redevelopment of

the Property for

16 residential use, use as a hospital, school for people aged 18 and under, or day care

17 center, or other uses likely to result in extended exposure to sensitive receptors.
18 (d) Prohibit installation of groundwater supply wells on the

19 Property.
20 ( e) Prohibit use of septic tanks on the Property and require that

21 such tanks be decommissioned in accordance with local regulations.
22 (f) Prohibit use ofthe Property in any manner that may

23 interfere with or adversely affect the investigation of contamination, the testing of
24 treatment alternatives, or the integrty of the remedy or any of its components, as
25 constructed pursuant to the ROD and the ESDs.

26 (g) Prohibit installation, closure, damage, blocking, or

27 otherwise obstructing monitoring points, including but not limited to groundwater
supply wells, monitoring wells, soil gas probes, reservoir leachate collection
22

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 24 of 28

1 wells, lysimeters, soil gas vents, and survey monuments, except as authorized by

2 EP A.
3 (h) Prohibit shutting down or interfering with indoor air
4 contamination sensors or alarms, soil gas control modification systems, liquids
5 recovery systems, liquids treatment systems, and treated liquids storage facilities,

6 except as provided for routine maintenance conducted in accordance with an
7 approved plan; provided, however, that this prohibition does not apply to sensors

8 or related equipment in buildings that are being demolished.

9 (i) Require notification to EP A before any new excavation or
10 other subsurface penetration, including the making of

boreholes or foundation

11 piles, at a depth of greater than six (6) feet may occur on the Property and

12 compliance with the following requirements to protect the health and welfare of

13 on-site personnel and workers:
14 1. New excavation or subsurface penetration at a depth

15 greater than six (6) feet shall be supported by appropriate subsurface
16 explorations and analytical

laboratory data to characterize the construction

17 area for the possible existence of impacted soils and Waste Materials.
18 11. If

impacted soils or Waste Materials are discovered

19 in the construction area, they shall be remediated or new buildings and

20 structures shall be appropriately designed to protect occupants.
21 (3) Settling Defendants shall ensure compliance by all users of

the

22 relevant property with the above restrictions, except as otherwise authorized by EP A to
23 implement the remedy selected in the ROD and the ESDs or any future response action

24 required by EP A.
25 c. if EP A so requests, execute and record in the Recorder's Offce of

26 Maricopa County, State of Arzona, an easement/environmental restriction ("Easement"),
27 running with the land, that (i) grants a right of access for the purpose of conducting any

activity

related to this Consent Decree including, but not limited to, those activities listed in
23

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 25 of 28

1 Paragraph 26.a of this Consent Decree, and (ii) grants the right to enforce the land/water use
2 restrictions listed in Paragraph 26.b(l) or (2), as applicable, of

this Consent Decree, or other

3 restrictions that EP A determines are necessary to implement, ensure non-interference with, or

4 ensure the protectiveness ofthe remedial measures to be performed pursuant to this Consent

5 Decree. Settling Defendants shall grant the access rights and the rights to enforce the land/water

6 use restrictions to (i) the United States, on behalf of EP A, and its representatives, and/or (ii) the
7 State and its representatives, and/or (iii) such other appropriate grantee(s) as determined by EP A.

8 Settling Defendants shall, within 45 days ofEP A's written request, submit to EP A for review

9 and approval with respect to such property:

10 (1) a draft Easement, in substantially the form attached to this Consent

11 Decree as Appendix E or in such other form that is acceptable to EP A, that is enforceable
12 under the laws of

the State of Arzona, and

13 (2) a curent title insurance commitment or some other evidence of

14 title acceptable to EP A, which shows title to the land described in the Easement to be free
15 and clear of

all prior liens and encumbrances (except when those liens or encumbrances

16 are approved by EP A or when, despite best efforts, Settling Defendants are unable to

17 obtain release or subordination of such prior liens or encumbrances).
18 Within 15 days ofEPA's approval and acceptance of

the Easement and the title evidence, Settling

19 Defendants shall update the title search and, if it is determined that nothing has occurred since
20 the effective date of

the commitment to affect the title adversely, record the Easement with the
Maricopa County. Within 30 days of

21 Recorder's Office of

recording the Easement, Settling

22 Defendants shall provide EP A with a final title insurance policy, or other final evidence of title
23 acceptable to EP A, and a certified copy of the original recorded Easement showing the clerk's
24 recording stamps. If

the Easement is to be conveyed to the United States, the Easement and title

25 evidence (including final title evidence) shall be prepared in accordance with the U.S.
26 Department of Justice Title Standards 2001, and approval ofthe suffciency of

title must be

27 obtained as required by 40 U.S.c. § 255.
27. If

the Site, or any other property where access and/or land/water use restrictions
24

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 26 of 28

1 are needed to implement this Consent Decree, is owned or controlled by persons other than the
2 Settling Defendants, Settling Defendants shall use best efforts to secure from such persons:

3 a. an agreement to provide access thereto for Settling Defendants, as well as
4 for the United States on behalf of EP A, and the State, as well as their representatives (including

5 contractors), for the purpose of conducting any activity related to this Consent Decree including,
6 but not limited to, those activities listed in Paragraph 26.a of

this Consent Decree;

7 b. an agreement, enforceable by the Settlng Defendants and the United
8 States, to refrain from using the Site, or such other property, in any manner that would interfere
9 with or adversely affect the implementation, integrty, monitoring, or protectiveness of

the

10 remedial measures to be performed pursuant to this Consent Decree. Such agreement should

11 include, at a minimum, the restrictions identified in Paragraph 26.b(l) or (2), as applicable, of

12 this Consent Decree.
13 c. if EP A so requests, the execution and recordation in the Recorder's Offce
14 of

Maricopa County, State of Arzona, of an easement/environmental restriction ("Easement"),
activity

15 running with the land, that (i) grants a right of access for the purpose of conducting any

16 related to this Consent Decree including, but not limited to, those activities listed in

17 Paragraph 26.a of this Consent Decree, and (ii) grants the right to enforce the land/water use
18 restrictions listed in Paragraph 26.b(l) or (2), as applicable, of

this Consent Decree, or other

19 restrictions that EP A determines are necessar to implement, ensure non-interference with, or
20 ensure the protectiveness of

the remedial measures to be performed pursuant to this Consent

21 Decree. The access rights and/or rights to enforce land/water use restrictions shall be granted to

22 (i) the United States, on behalf of EP A, and its representatives, and/or (ii) the State and its
23 representatives, and/or (iii) such other appropriate grantee(s) as determined by EP A. Within 45

24 days ofEP A's written request, Settling Defendants shall submit to EP A for review and approval

25 with respect to such property:
26 (1) a draft Easement, in substantially the form attached to this Consent

27 Decree as Appendix E or in such other form that is acceptable to EP A, that is enforceable

under the laws of the State of Arzona, and
25

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

Page 27 of 28

1 (2) a current title insurance commitment, or some other evidence of
2 title acceptable to EP A, which shows title to the land described in the Easement to be free

3 and clear of all prior liens and encumbrances (except when those liens or encumbrances
4 are approved by EP A or when, despite best efforts, Settling Defendants are unable to

5 obtain release or subordination of such prior liens or encumbrances)

6 Within 15 days of EP A's approval and acceptance of the Easement and the title evidence, Settling
7 Defendants shall update the title search and, if it is determined that nothing has occurred since
8 the effective date of

the commitment to affect the title adversely, the Easement shall be recorded
Maricopa County. Within 30 days ofthe recording of

9 with the Recorder's Offce of

the

10 Easement, Settling Defendants shall provide EP A with a final title insurance policy, or other final

11 evidence of title acceptable to EP A, and a certified copy of the original recorded Easement
12 showing the clerk's recording stamps. If

the Easement is to be conveyed to the United States, the

13 Easement and title evidence (including final title evidence) shall be prepared in accordance with
14 the U.S. Department of Justice Title Standards 2001, and approval of the suffciency of

title must

15 be obtained as required by 40 U.S.C. § 255.
16 28. For purposes of Paragraphs 26 and 27 of

this Consent Decree, "best efforts"

17 includes the payment of reasonable sums of money in consideration of access, access easements,

18 land/water use restrictions, restrictive easements, and/or an agreement to release or subordinate a
19 prior lien or encumbrance. If

(a) any access or land/water use restriction agreements required by
this Consent Decree are not obtained within 45 days of

20 Paragraphs 27.a or 27.b of

the Effective

21 Date, (b) any access easements or restrictive easements required by Paragraph 27.c of this
22 Consent Decree are not submitted to EPA in draft form within 45 days ofEPA's written request,

23 or (c) Settling Defendants are unable to obtain an agreement pursuant to Paragraph 26.c.(1) or
24 Paragraph 27 .c.(1) from the holder of a prior lien or encumbrance to release or subordinate such

25 lien or encumbrance to the Easement being created pursuant to this Consent Decree within 45
26 days of EP A's written request, Settling Defendants shall promptly notify the United States in
27 writing, and shall include in that notification a summar of

the steps that Settling Defendants

have taken to attempt to comply with Paragraph 26 or 27 ofthis Consent Decree. The United
26

Case 2:03-cv-02226-ROS

Document 80

Filed 06/27/2006

P