City of Colton v. American Promotional Events Inc et al, No. 5:2009cv01864 - Document 1821 (C.D. Cal. 2013)

Court Description: CONSENT DECREE by Judge Philip S. Gutierrez: Re: OU2/OU3 Work Consent Decree. FINAL JUDGMENT: This Consent Decree and its appendices constitute the final, complete, and exclusive agreement and understanding among the Parties and UTC regarding the settlement embodied in the Consent Decree. The Parties and UTC acknowledge that there are no representations, agreements or understandings relating to the settlement other than those expressly contained in this Consent Decree. 149. Upon entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment between and among the United States, Settling Work Defendant, and UTC. The Court finds that there is no just reason for delay and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. (see document for further details) Related to: MOTION for Settlement Approval of Proposed Consent Decrees 1807 . (bm)

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City of Colton v. American Promotional Events Inc et al Doc. 1821 E-FILED: 07-02-13 Link #1807 1 2 3 4 5 6 7 8 9 10 IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division United States Department of Justice BRADLEY R. O’BRIEN (CA Bar #189425) MICHAEL C. AUGUSTINI (DC Bar #452526) MARK A. RIGAU (CA Bar #223610) Environment and Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, California 94105 Telephone: (415) 744-6484 Facsimile: (415) 744-6476 brad.obrien@usdoj.gov Attorneys for UNITED STATES OF AMERICA 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 13 14 15 CITY OF COLTON, a California municipal corporation, 16 Plaintiff, 17 18 19 v. 20 AMERICAN PROMOTIONAL EVENTS, INC., et al. 21 CASE NO. ED CV 09-01864 PSG (SSx) [Consolidated with Case Nos. CV 096630 PSG (SSx), CV 09-06632 PSG (SSx), CV 09-07501 PSG (SSx), CV 0907508 PSG (SSx), CV 10-824 PSG (SSx) and CV 05-01479 PSG (SSx)] CONSENT DECREE Defendants. 22 AND CONSOLIDATED ACTIONS 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE Dockets.Justia.com 1 TABLE OF CONTENTS 2 3 4 5 6 I. BACKGROUND .................................................................................. 1 II. JURISDICTION ................................................................................... 7 III. PARTIES BOUND ............................................................................... 8 IV. DEFINITIONS ...................................................................................... 9 V. GENERAL PROVISIONS ................................................................. 24 VI. PERFORMANCE OF THE WORK BY SETTLING WORK 7 8 9 10 11 12 13 DEFENDANT ............................................................................. 27 14 15 VII. REMEDY REVIEW ........................................................................... 39 VIII. QUALITY ASSURANCE, SAMPLING, AND DATA 16 17 18 ANALYSIS ................................................................................. 40 19 20 21 22 IX. ACCESS.............................................................................................. 43 X. REPORTING REQUIREMENTS ...................................................... 48 XI. EPA APPROVAL OF PLANS, REPORTS, AND OTHER 23 24 25 DELIVERABLES ....................................................................... 51 26 27 28 XII. PROJECT COORDINATORS ........................................................... 53 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - i- 1 XIII. PERFORMANCE GUARANTEE ..................................................... 55 XIV. CERTIFICATION OF COMPLETION OF THE WORK ................. 66 XV. EMERGENCY RESPONSE............................................................... 72 XVI. ESTABLISHMENT OF ACCOUNTS 2 3 4 5 6 7 8 AND PAYMENTS...................................................................... 73 9 10 XVII. INDEMNIFICATION AND INSURANCE ....................................... 98 XVIII. FORCE MAJEURE .......................................................................... 101 XIX. DISPUTE RESOLUTION ................................................................ 104 XX. STIPULATED PENALTIES ............................................................ 110 XXI. COVENANTS, RELEASES, AND RESERVATIONS 11 12 13 14 15 16 17 18 OF RIGHTS .............................................................................. 118 19 20 21 22 23 24 XXII. EFFECT OF SETTLEMENT CONTRIBUTION ............................ 146 XXIII. RETENTION OF RECORDS .......................................................... 150 XXIV. ACCESS TO INFORMATION ........................................................ 152 XXV. NOTICES AND SUBMISSIONS .................................................... 154 XXVI. RETENTION OF JURISDICTION .................................................. 157 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - ii - 1 XXVII. APPENDICES .................................................................................. 158 2 3 XXVIII. COMMUNITY RELATIONS .......................................................... 158 4 5 6 XXIX. MODIFICATION ............................................................................. 159 XXX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .... 160 XXXI. SIGNATORIES/SERVICE .............................................................. 160 7 8 9 10 XXXII. FINAL JUDGMENT ........................................................................ 161 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - iii - 1 I. BACKGROUND 2 3 A. The United States of America (“United States”), on behalf of the 4 5 Administrator of the United States Environmental Protection Agency (“EPA”), 6 filed, on February 4, 2010, a complaint (Case No. CV 10-0824 PSG (SSx)) 7 8 pursuant to Section 107 of the Comprehensive Environmental Response, 9 Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9606, 9607 and 10 Section 7003 of the Resource Conservation and Recovery Act (“RCRA”), 42 11 12 U.S.C. § 6973. Goodrich Corporation filed, on September 11, 2009, a complaint 13 (CV 09-06630 PSG (SSx)) under CERCLA and state law. These cases were 14 15 16 17 consolidated by orders filed on January 20, 2010 and June 3, 2010. B. The United States in its complaint seeks, inter alia: (1) reimbursement of costs incurred for response actions at the Locust Avenue 18 19 Superfund Site in Rialto, California, together with accrued Interest; and (2) 20 performance of response actions by the defendants at the Locust Avenue 21 22 23 24 25 Superfund Site consistent with the National Contingency Plan, 40 C.F.R. Part 300 (as amended) (“NCP”). In addition, Goodrich Corporation has asserted claims against the United States pursuant to Sections 106, 107, and 113 of CERCLA, 42 26 U.S.C. §§ 9606, 9607, and 9613. Goodrich Corporation in its complaint seeks 27 reimbursement of costs incurred by it for response actions taken in the Rialto 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 1- 1 Ammunition Backup Storage Point (“RABSP”) and declaratory relief for future 2 response costs. The United States Department of Defense also has asserted 3 4 5 6 CERCLA contribution claims against Goodrich in the action. C. In accordance with the NCP and Section 121(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F), EPA notified the State of California (the “State”) on 7 8 December 9, 2010, of negotiations with potentially responsible parties (“PRPs”) 9 regarding the implementation of the remedial design and remedial action for the 10 11 Locust Avenue Superfund Site, and EPA has provided the State with an 12 opportunity to participate in such negotiations and be a party to this Consent 13 14 15 16 Decree. D. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA notified the U.S. Fish and Wildlife Service and the California 17 18 Department of Fish and Game on November 15, 2010, of negotiations with PRPs 19 regarding the release of hazardous substances that may have resulted in injury to 20 21 22 23 the natural resources under federal trusteeship and encouraged the trustees to participate in the negotiation of this Consent Decree. E. Goodrich Corporation (“Settling Work Defendant”), federal agencies 24 25 (“Settling Federal Agencies”), and United Technologies Corporation (“UTC”) 26 have entered into this Consent Decree and do not admit any liability in the 27 28 Consolidated Federal Action arising out of the transactions or occurrences alleged LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 2- 1 in the complaints, nor do they acknowledge that the release or threatened release of 2 hazardous substance(s) at or from the Locust Avenue Superfund Site constitutes an 3 4 5 6 imminent and substantial endangerment to the public health or welfare or the environment. Settling Work Defendant and Settling Federal Agencies do not admit any liability arising out of the transactions or occurrences alleged in any 7 8 9 claim or counterclaim asserted by any party in the Consolidated Federal Action. F. The United States’ complaint, this Consent Decree, and the history of 10 11 the Locust Avenue Superfund Site, exist within a larger context of litigation and a 12 larger context of activities in and around the Locust Avenue Superfund Site, as 13 14 follows: (1) 15 16 During and immediately after World War II, certain United States agencies owned a tract known as the RABSP in San Bernardino County, 17 18 19 California; (2) The RABSP sits atop the Rialto-Colton Groundwater Basin 20 21 22 23 (“Rialto Basin”); (3) After World War II, the United States agencies sold the RABSP property off in different parcels, including a 160 acre parcel (“160-Acre Area”) 24 25 bounded by Casa Grande Park Avenue on the north, Locust Avenue on the east, an 26 extension of Alder Avenue on the west, and an extension of Summit Avenue on the 27 28 south. Settling Work Defendant and other parties to the Consolidated Federal LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 3- 1 Action owned and/or operated businesses within the area formerly occupied by the 2 RABSP; 3 4 5 6 (4) The United States on behalf of EPA, asserts that there are two source areas within the area formerly occupied by the RABSP (the “RABSP Area”) from which contaminated groundwater is emanating. These two source 7 8 9 areas are known as the West Side Area and the 160-Acre Area; (5) The West Side Area is in the western portion of the former 10 11 RABSP Area. For purposes of this Consent Decree, it consists of property 12 currently owned by San Bernardino County, otherwise known as the Mid Valley 13 14 15 16 Sanitary Landfill (“County Property”), and the Stonehurst Property, which is located adjacent to the County Property; (6) The State of California’s Water Resources Control Board and 17 18 its Santa Ana Regional Water Quality Control Board have assumed jurisdiction 19 over, among other things, the cleanup of the County Property and the Stonehurst 20 21 22 23 Property, and San Bernardino County has assumed responsibility for implementing cleanup of releases from the County Property pursuant to a Cleanup and Abatement Order, Regional Water Quality Control Board Order No. R8-2003- 24 25 26 0013, as amended by R8-2004-0072; (7) Certain claims in the Consolidated Federal Action are the 27 28 subject of consent decrees entered in the Central District of California under case LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 4- 1 number ED CV 09-1864 (SSx) (Docket Nos. 772, 1192, and 1258); and 2 (8) The 160-Acre Area is in the eastern portion of the former 3 4 5 RABSP and is the source area encompassed in the Locust Avenue Superfund Site. G. In response to a release or a substantial threat of a release of a 6 7 hazardous substance(s) at or from the B. F. Goodrich Superfund Site, EPA 8 commenced on January 15, 2009, a Remedial Investigation (“RI”) and Feasibility 9 10 Study (“FS”) for the B.F. Goodrich Superfund Site pursuant to 40 C.F.R. 11 § 300.430. At that time, the Locust Avenue Superfund Site was known as the B.F. 12 Goodrich Superfund Site. EPA shall propose a rulemaking in spring 2013 that will 13 14 propose to change the name of the site to the Locust Avenue Superfund Site. For 15 purposes of this Consent Decree, the Parties and UTC will identify this site as the 16 17 18 19 Locust Avenue Superfund Site. H. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Locust Avenue Superfund Site on the National Priorities List, set forth at 40 20 21 C.F.R. Part 300, by publication in the Federal Register on September 23, 2009, 74 22 Fed. Reg. 48412. By placing the Locust Avenue Superfund Site on the National 23 24 25 26 27 28 Priorities List, U.S. EPA assumed jurisdiction over its cleanup. I. EPA completed an RI/FS Report for the Locust Avenue Superfund Site on January 25, 2010. The decision by EPA on a first remedial action to be implemented at the Locust Avenue Superfund Site is embodied in an Interim LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 5- 1 Record of Decision, executed on September 30, 2010, on which the State has given 2 its concurrence. 3 4 5 6 J. On July 26, 2012, Goodrich Corporation was acquired by United Technologies Corporation. K. EPA is currently performing an additional RI to determine whether 7 8 any further remedial action will be necessary at the Locust Avenue Superfund Site 9 beyond those remedial actions specified in the 2010 ROD and, if so, the extent of 10 11 12 13 14 such further remedial action. L. Based on the information presently available to EPA, EPA believes that the work required by this Consent Decree will be properly and promptly 15 conducted by Settling Work Defendant if conducted in accordance with the 16 requirements of this Consent Decree. EPA currently intends to issue one (1) 17 18 OU2/OU3 ROD as defined in Section IV (Definitions). However, it is within 19 EPA’s discretion to issue a separate ROD for OU2 and a separate ROD for OU3. 20 21 22 23 M. In the event the OU2/OU3 ROD selects a remedy that requires the participation of a drinking water purveyor, EPA will actively assist Settling Work Defendant in obtaining access, water rights, and the cooperation from the relevant 24 25 26 drinking water purveyor. N. Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. 27 28 § 9613(j), the remedy set forth in the OU2/OU3 ROD and the work, if any, to be LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 6- 1 performed by Settling Work Defendant, shall constitute a response action taken or 2 ordered by the President for which judicial review shall be limited to the 3 4 5 6 administrative record. O. The Parties and UTC recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties 7 8 and UTC in good faith, that implementation of this Consent Decree will expedite 9 the cleanup of the Locust Avenue Superfund Site and will avoid prolonged and 10 11 complicated litigation between the Parties, and that this Consent Decree is fair, 12 reasonable, and in the public interest. 13 14 NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed: 15 II. 16 17 1. JURISDICTION This Court has jurisdiction over the subject matter of this 18 19 Consolidated Federal Action pursuant to 28 U.S.C. §§ 1331, 1345, and 1367 and to 20 42 U.S.C. §§ 9607, 9613(b), and 6973. The claims and counterclaims brought in 21 22 23 24 25 accordance with state law arise from the same common nucleus of operative facts as the claims under federal law. This Court also has personal jurisdiction over Settling Work Defendant and the United States on behalf of Settling Federal 26 Agencies. The Consolidated Federal Action is properly venued in this Court. 27 Settling Work Defendant, UTC, and the United States on behalf of Settling Federal 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 7- 1 Agencies shall not challenge the terms of this Consent Decree or this Court’s 2 jurisdiction to enter and enforce this Consent Decree. 3 4 III. PARTIES BOUND 5 6 7 8 9 10 2. This Consent Decree applies to and is binding upon the United States, on behalf of EPA and Settling Federal Agencies, Settling Work Defendant, UTC, and upon their heirs, successors, and assigns. LGEs, as defined in Section IV (Definitions), are joining this Consent Decree solely for the purpose of providing 11 12 and receiving covenants not to sue and/or releases; therefore, solely Paragraphs 13 105 – 108 and 125 of this Consent Decree apply to and are binding upon LGEs. 14 15 16 17 Any change in ownership or corporate status of Settling Work Defendant including, but not limited to, any transfer of assets or real or personal property, shall in no way alter Settling Work Defendant’s responsibilities under this Consent 18 19 Decree. 20 3. Settling Work Defendant shall provide a copy of this Consent Decree 21 22 23 24 25 to each contractor hired to perform the Work required by this Consent Decree and to each person representing Settling Work Defendant with respect to the Locust Avenue Superfund Site or the Work, and whose annual fee or invoices exceed 26 twenty thousand dollars ($20,000) in a given calendar year, and shall condition all 27 contracts entered into hereunder upon performance of the Work in conformity with 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 8- 1 the terms of this Consent Decree. Settling Work Defendant or its contractor shall 2 provide written notice of the Consent Decree to all subcontractors hired to perform 3 4 5 6 any portion of the Work required by this Consent Decree, and whose annual fee or invoices exceed twenty thousand dollars ($20,000) in a given calendar year. Settling Work Defendant shall nonetheless be responsible for ensuring that its 7 8 contractors and subcontractors perform the Work in accordance with the terms of 9 this Consent Decree. With regard to the activities undertaken pursuant to this 10 11 Consent Decree, each contractor and subcontractor shall be deemed to be in a 12 contractual relationship with Settling Work Defendant within the meaning of 13 14 Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3). 15 IV. 16 17 4. DEFINITIONS Unless otherwise expressly provided in this Consent Decree, terms 18 19 used in this Consent Decree that are defined in CERCLA or in regulations 20 promulgated under CERCLA shall have the meaning assigned to them in CERCLA 21 22 23 24 25 26 27 or in such regulations. Whenever terms listed below are used in this Consent Decree or in the appendices attached hereto and incorporated hereunder, the following definitions shall apply solely for purposes of this Consent Decree: “160-Acre Area” shall mean the area located in San Bernardino County that is bounded by West Casa Grande Drive on the north, Locust Avenue on the east, 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 9- 1 Alder Avenue on the west, and an extension of Summit Avenue on the south. The 2 160-Acre Area is depicted generally on the map included in Appendix A. 3 4 5 6 “2010 Record of Decision” or “2010 ROD” shall mean the document entitled “USEPA Superfund Interim Action Record of Decision” relating to the Source Area Operable Unit, Locust Avenue Superfund Site, San Bernardino 7 8 County, California, EPA ID: CAN000905945, dated September 30, 2010, signed 9 by the Assistant Director, Superfund Division, EPA Region 9, and all attachments 10 11 12 13 14 15 16 thereto. “Administrative Order on Consent No. 2013-01” or “AOC” shall mean the AOC that requires Settling Work Defendant to complete the RI/FS for OU2 (groundwater only) and OU3 (soil and/or vadose zone only). “Basin Contaminants” shall mean any type of perchlorate; trichloroethylene 17 18 (“TCE”); carbon tetrachloride; chloroform; or methylene chloride; including any 19 breakdown or “daughter” products of the foregoing. 20 21 22 23 “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601, et seq. “Certification of Completion of the Remedial Action” shall mean the 24 25 certification of completion of the remedial action associated with the OU2/OU3 26 ROD for the Locust Avenue Superfund Site. 27 28 “Colton” shall mean the City of Colton and any of its present, former, or LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 10 - 1 2 future subdivisions, departments, commissions, agencies, or instrumentalities. “Consent Decree” or “Decree” shall mean this Consent Decree and all 3 4 5 6 Appendices attached hereto listed in Section XXVII (Appendices). In the event of conflict between this Consent Decree and any appendix, this Consent Decree shall control. 7 8 “Consolidated Federal Action” shall mean City of Colton v. American 9 Promotional Events, Inc., et al., Case No. ED CV 09-01864 PSG (SSx); Goodrich 10 11 Corporation v. Chung Ming Wong, et al., Case No. CV 09-6630 PSG (SSx); 12 County of San Bernardino, et al., v. Tung Chun Co., et al., Case No. CV 09-06632 13 14 PSG (SSx); City of Rialto and Rialto Utility Authority v. United States Department 15 of Defense, et al., Case No. CV 09-7501 PSG (SSx); and Emhart Industries, Inc. v. 16 American Promotional Events, Inc.-West, et al., Case No. CV 09-07508 PSG 17 18 (SSx), all of which were consolidated pursuant to an order issued on January 20, 19 2010; United States of America v. Goodrich Corporation, et al., Case No. 10- 20 21 22 23 00824 PSG (SSx), which was consolidated with the previously consolidated cases pursuant to an order issued on June 3, 2010; and City of Colton v. American Promotional Events, Inc., et al., Case No. ED CV 05-01479 PSG (SSx), which was 24 25 consolidated with the previously consolidated cases pursuant to an order issued on 26 March 24, 2011. 27 28 “Construction of the Remedial Action” shall mean all activities Settling LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 11 - 1 Work Defendant is required to perform under the Consent Decree to implement the 2 OU2/OU3 ROD, in accordance with the SOW, the Remedial Design and Remedial 3 4 5 6 Action Work Plans, and other plans approved by EPA, and excluding performance of the Remedial Design, start-up, O&M, and the activities required under Section XXIII (Retention of Records). 7 8 9 “County” shall mean the County of San Bernardino and any of its present, former, or future subdivisions, departments, commissions, agencies, or 10 11 12 13 14 instrumentalities. “County Property” shall mean the property known as the Mid Valley Sanitary Landfill, which is currently owned by the County of San Bernardino, 15 including those areas currently leased to Robertson’s Ready Mix. The County 16 Property is bounded by Summit Avenue on the north, generally by Alder Avenue 17 18 on the east (until Alder Avenue terminates at or within the Robertson’s Ready Mix 19 leasehold), generally by the municipal boundaries of the Cities of Fontana and 20 21 22 23 Rialto on the west except for a strip of land located in the City of Fontana, and by Casmalia Street on the south. The County Property is depicted generally on the map included in Appendix A. 24 25 26 “Day” shall mean a calendar day unless expressly stated to be a working day. The term “working day” shall mean a day other than a Saturday, Sunday, or 27 28 federal holiday. In computing any period of time under this Consent Decree, when LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 12 - 1 the last day falls on a Saturday, Sunday, or federal holiday, the period shall run 2 until the close of business of the next working day. 3 4 5 6 “DOJ” shall mean the United States Department of Justice and its successor departments, agencies, or instrumentalities. “Effective Date” shall be the earlier of the date upon which this Consent 7 8 Decree is entered by the Court as recorded on the Court docket, or, if the Court 9 issues an order approving the Consent Decree, the date such order is recorded on 10 11 12 13 14 the Court docket. “EPA” shall mean the United States Environmental Protection Agency and any successor departments or agencies of the United States. 15 “Existing Settling Parties” shall mean the parties identified on Appendix B. 16 “Federal Contract” means any prime contract, subcontract, or any other 17 18 agreement transferring value between a party to this Consent Decree and a 19 department, agency, or instrumentality of the United States, including but not 20 21 22 23 limited to, contracts for goods or services, grants, and cooperative agreements. The term “Federal Contract” does not include this Consent Decree. “Future Response Costs” shall mean all costs, including, but not limited to, 24 25 direct and indirect costs, that the United States incurs after the Effective Date of 26 this Consent Decree in reviewing or developing plans, reports, and other 27 28 deliverables submitted pursuant to this Consent Decree, or otherwise LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 13 - 1 implementing, overseeing, or enforcing this Consent Decree, including, but not 2 limited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs 3 4 5 6 incurred pursuant to Section VII (Remedy Review), Section IX (Access) (including, but not limited to, the cost of attorney time and any monies paid to secure access including, but not limited to, the amount of just compensation), 7 8 Section XV (Emergency Response), Paragraph 49 (Funding for Work Takeover), 9 and Section XXVIII (Community Relations). Future Response Costs do not 10 11 include EPA oversight costs for the RI/FS, which costs shall be borne by Settling 12 Work Defendant as provided for by the AOC. 13 14 “Future Settling Party” shall mean the Estate of Hescox; Ken Thompson, 15 Inc.; General Dynamics; or other parties, or these parties’ insurers, in the 16 Consolidated Federal Action that have not entered into a lodged Consent Decree 17 18 with the United States as of December 31, 2012, as part of the Consolidated 19 Federal Action. 20 21 22 23 “Goodrich Corporation” shall mean Goodrich Corporation and its officers, directors and employees acting in their official capacity. “Institutional Controls” shall mean Proprietary Controls and state or local 24 25 laws, regulations, ordinances, zoning restrictions, or other governmental controls 26 or notices that: (a) limit land, water, and/or resource use to minimize the potential 27 28 for human exposure to Waste Material at or in connection with the Locust Avenue LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 14 - 1 Superfund Site; (b) limit land, water, and/or resource use to implement, ensure 2 non-interference with, or ensure the protectiveness of the Remedial Action; and/or 3 4 5 (c) provide information intended to modify or guide human behavior at or in connection with the Locust Avenue Superfund Site. 6 “Interest” shall mean interest at the rate specified for interest on investments 7 8 of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, 9 compounded annually on October 1 of each year, in accordance with 42 U.S.C. 10 11 § 9607(a). The applicable rate of interest shall be the rate in effect at the time the 12 interest accrues. The rate of interest is subject to change on October 1 of each 13 14 year. 15 “Local Government Entities” or “LGEs” shall mean the County, Rialto, and 16 Colton, which includes their past and current officers and employees acting in the 17 18 19 course and scope of their employment. “Locust Avenue Superfund Site” also heretofore known as the “B.F. 20 21 22 23 Goodrich Superfund Site,” shall mean the 160-Acre Area and all areas where Basin Contaminants or other contaminants of concern that are identified in the OU2/OU3 ROD that originate from the 160-Acre Area come to be located. 24 25 “MSW” shall mean municipal solid waste material: (a) generated by a 26 household (including a single or multifamily residence); or (b) generated by a 27 28 commercial, industrial, or institutional entity, to the extent that the waste material: LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 15 - 1 (1) is essentially the same as waste normally generated by a household; (2) is 2 collected and disposed of with other municipal solid waste as part of normal 3 4 5 6 municipal solid waste collection services; and (3) contains a relative quantity of hazardous substances no greater than the relative quantity of hazardous substances contained in waste material generated by a typical single-family household. 7 8 9 “National Contingency Plan” or “NCP” shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to 10 11 Section 105 of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and 12 any amendments thereto. 13 14 “Operable Unit No. 1” or “OU1” shall mean the operable unit at the Locust 15 Avenue Superfund Site that addresses groundwater contamination within the 16 Target Area. 17 18 19 “Operable Unit No. 2” or “OU2” shall mean the operable unit at the Locust Avenue Superfund Site that addresses groundwater contaminated by Basin 20 21 22 23 Contaminants or other contaminants of concern that are identified in the OU2/OU3 ROD at the Locust Avenue Superfund Site downgradient of the Target Area. OU2 remedial activities do not include groundwater within the Target Area. 24 25 “Operable Unit No. 3” or “OU3” shall mean the operable unit at the Locust 26 Avenue Superfund Site that addresses Basin Contaminants or other contaminants 27 28 of concern that are identified in the OU2/OU3 ROD for the soils and soil vapor in LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 16 - 1 2 the vadose zone at the 160-Acre Area. “Operation and Maintenance” or “O&M” shall mean all activities required 3 4 5 6 to operate and maintain the systems constructed to implement the Remedial Action as required under the Operation and Maintenance Plan approved or developed by EPA pursuant to Section VI (Performance of the Work by Settling Work 7 8 9 Defendant) and the SOW. “OU1 Work Decree” shall mean the Consent Decree that will implement the 10 11 12 13 14 15 16 OU1 work, as lodged with the Court on December 4, 2012. “OU2/OU3 Locust Avenue Superfund Site Disbursement Special Account” or “OU2/OU3 Disbursement Special Account” shall be the account described in Paragraph 62. “OU2/OU3 Locust Avenue Superfund Site Special Account” shall mean the 17 18 special account, within the EPA Hazardous Substances Superfund, established for 19 the Locust Avenue Superfund Site by EPA pursuant to Section 122(b)(3) of 20 21 22 23 CERCLA, 42 U.S.C. § 9622(b)(3). “OU2/OU3 Record of Decision” or “OU2/OU3 ROD” shall mean the Record of Decision(s) (and all attachments) for the Locust Avenue Superfund Site 24 25 that will be signed by EPA in the future, and after the date of lodging this Consent 26 Decree. EPA currently intends to issue one (1) OU2/OU3 ROD; however, it is 27 28 within EPA’s discretion to issue a separate ROD for OU2 and a separate ROD for LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 17 - 1 OU3. 2 “Paragraph” shall mean a portion of this Consent Decree identified by an 3 4 Arabic numeral or an upper or lower case letter. 5 6 “Party” and/or “Parties” shall mean the United States and Settling Work Defendant. 7 “Past Response Costs” shall mean all costs, including, but not limited to, 8 9 direct and indirect costs, that the United States paid (by EPA or by the Department 10 11 of Justice in representing EPA) at or in connection with the Locust Avenue 12 Superfund Site through the Effective Date this Consent Decree, plus Interest on all 13 14 such costs which has accrued pursuant to 42 U.S.C. § 9607(a) through such date. 15 Past Response Costs shall not include RI/FS oversight costs incurred by EPA 16 under the AOC, which shall be borne by Settling Work Defendant pursuant to the 17 18 19 AOC. “Performance Standards” shall mean the cleanup standards, the Applicable 20 21 22 23 or Relevant and Appropriate Requirements (“ARARs”), and other measures of achievement of the goals of the Remedial Action, as set forth in OU2/OU3 ROD and any modified standards established pursuant to this Consent Decree. Settling 24 25 Work Defendant will continue to implement the OU2 Work until Settling Work 26 Defendant can demonstrate the following: (1) the concentrations of the Basin 27 28 Contaminants and/or contaminants of concern identified in the OU2/OU3 ROD, in LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 18 - 1 groundwater at monitoring locations to be determined, do not exceed state or 2 federal MCLs or other groundwater cleanup standards identified in the OU2/OU3 3 4 5 6 ROD; and (2) such concentrations are not reasonably expected, based on sound and generally accepted scientific principles, to increase above the selected cleanup standards after the Work ceases. Any Work required for OU3 will be implemented 7 8 in accordance with the OU2/OU3 ROD and the Performance Standards identified 9 for OU3. 10 11 “Plaintiff” shall mean the United States on behalf of EPA. 12 “Proprietary Controls” shall mean easements or covenants running with the 13 14 land that: (a) limit land, water, or resource use and/or provide access rights, and 15 (b) are created pursuant to common law or statutory law by an instrument that is 16 recorded by the owner in the appropriate land records office. 17 18 “RABSP Area” shall mean the approximately 2,800 acre parcel of land 19 originally containing the former Rialto Ammunition Backup Storage Point, located 20 21 22 23 in San Bernardino County, California. The 160-Acre Area is within the geographic area of the RABSP Area. The RABSP Area is depicted, generally, in the map identified in Appendix A. 24 25 26 “RABSP Site” shall mean the RABSP Area and all areas where contamination from the RABSP Area comes to be located. 27 28 “Remedial Action” or “RA” shall mean all activities Settling Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 19 - 1 Defendant is required to perform under this Consent Decree to implement the 2 OU2/OU3 ROD in accordance with the SOW, the final approved remedial design 3 4 5 6 submission, the approved Remedial Action Work Plan, and other plans approved by EPA, including the implementation of Institutional Controls, until the Performance Standards are met, and excluding performance of the Remedial 7 8 Design, and the activities required under Section XXIII (Retention of Records). 9 Remedial Action includes Startup Activities. Remedial Action does not include 10 11 12 13 14 15 16 activities and obligations that are being performed under the OU1 Work Decree. “Remedial Action Work Plan” shall mean the document developed pursuant to Paragraph 13 and approved by EPA, and any modifications or addendums thereto. “Remedial Design” or “RD” shall mean those activities to be undertaken by 17 18 Settling Work Defendant to develop the final plans and specifications for the 19 Remedial Action pursuant to the Remedial Design Work Plan. 20 21 22 23 “Remedial Design Work Plan” shall mean the document developed pursuant to Paragraph 12 (Remedial Design and Remedial Action Planning) and approved by EPA, and any modifications or addendums thereto authorized by this Consent 24 25 26 Decree. “Resource Conservation and Recovery Act” or “RCRA” shall mean the 27 28 Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901, et seq. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 20 - 1 “Rialto” shall mean the City of Rialto and any of its present, former, or 2 future subdivisions, departments, commissions, agencies, or instrumentalities, 3 4 5 6 including, but not limited to, the Rialto Utility Authority and the Rialto Redevelopment Agency. “Section” shall mean a portion of this Consent Decree identified by a Roman 7 8 9 numeral. “Settling Federal Agencies” shall mean any federal agency, department, or 10 11 instrumentality named or alleged to be liable for contamination in the Consolidated 12 Federal Action, including but not limited to the United States Department of the 13 14 Army and United States Army Corps of Engineers, the United States Department 15 of the Navy, the United States Department of the Air Force, the United States 16 Department of Defense, the Farm Credit Administration, the United States 17 18 Customs and Border Protection, the National Guard Bureau, the National 19 Aeronautics and Space Administration, the United States Department of Energy, 20 21 22 23 Lawrence Livermore National Laboratory, the United States Forest Service, and any other federal entity that is alleged to have transported, disposed of, or released any Waste Material within the area encompassed by the RABSP Area, as depicted 24 25 26 in Appendix A, and any of their predecessors or successors. “Settling Work Defendant” shall mean Goodrich Corporation and its 27 28 officers, directors, and employees acting in their official capacities. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 21 - 1 2 “Startup Activities” shall mean those activities performed by Settling Work Defendant after the completion of Construction of the Remedial Action, to make 3 4 5 6 the remedy “Operational and Functional.” The remedy shall be deemed Operational and Functional when EPA determines that the remedy is functioning properly and is performing as designed. 7 8 “State” shall mean the State of California. 9 “Statement of Work” or “SOW” shall mean the statement of work Settling 10 11 Work Defendant has agreed to perform as set forth in this Consent Decree for 12 implementation of the Remedial Design, Remedial Action, and O&M at the Locust 13 14 15 16 Avenue Superfund Site, as set forth in Appendix C to this Consent Decree and any modifications made in accordance with this Consent Decree. “Stonehurst Property” shall mean the approximate 5-acre property in San 17 18 Bernardino County, County APNs 1133-07-105, 1133-07-106, and 1133-07-107, 19 collectively, located at 2298 West Stonehurst Drive, Rialto, California. The 20 21 22 23 Stonehurst Property is depicted generally on the map included in Appendix A. The Stonehurst Property has been and is owned and operated by entities that are not signatories to this Consent Decree. 24 25 26 “Supervising Contractor” shall mean the principal contractor retained by Settling Work Defendant to supervise and direct the implementation of the Work 27 28 under this Consent Decree. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 22 - 1 2 “Target Area” shall mean the area of contaminated groundwater described in section 2.11.2 (Description of the Selected Remedy) of the 2010 ROD and/or the 3 4 5 6 OU1 Work Decree. “Transfer” shall mean to sell, assign, convey, lease, mortgage, or grant a security interest in, or where used as a noun, a sale, assignment, conveyance, or 7 8 9 other disposition of any interest by operation of law or otherwise. “United States” shall mean the United States of America and each 10 11 department, agency, and instrumentality of the United States, specifically including 12 EPA and Settling Federal Agencies. 13 14 “United Technologies Corporation” or “UTC” shall mean United 15 Technologies Corporation and its officers, directors, and employees acting in their 16 official capacities. 17 18 19 “Waste Material” shall mean: (1) any “hazardous substance” under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant 20 21 22 23 under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (3) any “solid waste” under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); and (4) any “hazardous material” under all applicable or relevant and appropriate State statutory authority. 24 25 “West Side Area” shall mean the County Property and the Stonehurst 26 Property. The West Side Area is depicted generally on the map included in 27 28 Appendix A. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 23 - 1 “West Side Site” shall mean the West Side Area and all areas where 2 perchlorate and TCE contamination from the West Side Area comes to be located. 3 “Work” shall mean all activities and obligations Settling Work Defendant is 4 5 6 required to perform under this Consent Decree, except the activities required under Section XXIII (Retention of Records). Work does not include activities and 7 8 obligations that are being performed under the OU1 Work Decree or under the 9 AOC. 10 11 12 13 14 “Work Costs” shall mean all costs incurred and paid by Settling Work Defendant in performing the Work. Work Costs do not include “Costs Excluded from Disbursement” pursuant to Paragraph 63e. 15 V. 16 17 5. GENERAL PROVISIONS Objectives of the Parties and UTC. The objectives of the Parties and 18 19 UTC in entering into this Consent Decree are to protect public health or welfare or 20 the environment by the design and implementation of response actions required by 21 22 23 24 25 this Consent Decree at the Locust Avenue Superfund Site by Settling Work Defendant, to resolve the pending litigation in the Consolidated Federal Action, and to provide Settling Work Defendant, UTC, and Settling Federal Agencies with 26 the protections granted by an order from this Court finding that the settlement 27 herein described has been made in good faith, is reasonable, and is fair under 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 24 - 1 2 federal and state law. 6. Commitments by Settling Work Defendant. 3 a. 4 5 6 Settling Work Defendant shall perform all of the Work and, subject to potential reimbursement from other parties as described in Paragraphs 56 – 58 and 63 – 66, finance portions of the Work in accordance with this Consent 7 8 Decree, the OU2/OU3 ROD, the SOW, and all work plans, other plans, standards, 9 specifications, and schedules set forth in this Consent Decree or developed by 10 11 Settling Work Defendant and approved by EPA pursuant to this Consent Decree. 12 13 14 15 b. Settling Work Defendant shall reimburse EPA for all Future Response Costs, subject to potential reimbursement from other parties as described in Paragraphs 56 – 58 and 63 – 66. 16 c. Settling Work Defendant has entered into an AOC with EPA 17 18 that requires Settling Work Defendant to complete the RI/FS for OU2 19 (groundwater only) and OU3 (soil and/or vadose zone only). Under the terms of 20 21 22 23 the AOC, Settling Work Defendant is completing the RI/FS at its own expense and will reimburse EPA for EPA RI/FS oversight costs incurred after the effective date of the AOC pursuant to the AOC. This Consent Decree does not modify or impact 24 25 26 the terms of the AOC. 7. Commitments by Settling Federal Agencies. The United States, on 27 28 behalf of Settling Federal Agencies, shall reimburse Goodrich Corporation for LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 25 - 1 portions of the NCP compliant Work Costs and Future Response Costs as provided 2 in Paragraphs 56- 58 and 63– 66 of this Consent Decree. 3 4 5 6 8. Compliance with Applicable Law. All activities undertaken by Settling Work Defendant pursuant to this Consent Decree shall be performed in accordance with the requirements of all applicable federal, state, local laws, and 7 8 regulations. Settling Work Defendant must also comply with all applicable or 9 relevant and appropriate requirements of all federal and state environmental laws 10 11 as set forth in the OU2/OU3 ROD and the SOW. The activities conducted 12 pursuant to this Consent Decree, if approved by EPA, shall be deemed to be 13 14 15 16 consistent with the NCP. 9. Permits. a. As provided in Section 121(e) of CERCLA, 42 U.S.C. 17 18 § 9621(e), and Section 300.400(e) of the NCP, no permit shall be required for any 19 portion of the Work conducted entirely on-site (i.e., within the areal extent of 20 21 22 23 contamination or in very close proximity to the contamination and necessary for implementation of the Work). Where any portion of the Work that is not on-site requires a federal, state, or local permit or approval, Settling Work Defendant shall 24 25 submit timely and complete applications and take all other actions necessary to 26 obtain all such permits or approvals. 27 28 b. Settling Work Defendant may seek relief under the provisions LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 26 - 1 of Section XVIII (Force Majeure) for any delay in the performance of the Work 2 resulting from a failure to obtain, or a delay in obtaining, any permit or approval 3 4 5 6 referenced in Paragraph 9a. and required for the Work, provided that Settling Work Defendant has submitted timely and complete applications and taken all other actions necessary to obtain all such permits or approvals. 7 c. 8 9 This Consent Decree is not, and shall not be construed to be, a permit issued pursuant to any federal, state, or local statute or regulation. 10 11 VI. PERFORMANCE OF THE WORK BY SETTLING WORK DEFENDANT 10. Selection of Supervising Contractor. 12 13 14 15 16 17 a. All aspects of the Work to be performed by Settling Work Defendant pursuant to Sections VI (Performance of the Work by Settling Work Defendant), VII (Remedy Review), VIII (Quality Assurance, Sampling, and Data 18 19 Analysis), IX (Access), and XV (Emergency Response) shall be under the 20 direction and supervision of the Supervising Contractor, the selection of which 21 22 23 24 25 shall be subject to disapproval by EPA. Within thirty (30) Days after EPA provides Settling Work Defendant notice that any OU2/OU3 ROD is signed, Settling Work Defendant shall notify EPA in writing of the name, title, and 26 qualifications of any contractor proposed to be the Supervising Contractor. With 27 respect to any contractor proposed to be Supervising Contractor, Settling Work 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 27 - 1 Defendant shall demonstrate that the proposed contractor has a quality assurance 2 system that complies with ANSI/ASQC E4-1994, “Specifications and Guidelines 3 4 5 6 for Quality Systems for Environmental Data Collection and Environmental Technology Programs” (American National Standard, January 5, 1995), by submitting a copy of the proposed contractor’s Quality Management Plan 7 8 (“QMP”). The QMP should be prepared in accordance with “EPA Requirements 9 for Quality Management Plans (QA/R-2)” (EPA/240/B-01/002, March 2001, 10 11 reissued May 2006) or equivalent documentation as determined by EPA. EPA will 12 issue a notice of disapproval or an authorization to proceed regarding hiring of the 13 14 proposed contractor. If at any time thereafter, Settling Work Defendant proposes 15 to change a Supervising Contractor, Settling Work Defendant shall give such 16 notice to EPA and must obtain an authorization to proceed from EPA before the 17 18 new Supervising Contractor performs, directs, or supervises any Work under this 19 Consent Decree. 20 21 22 23 b. If EPA disapproves a proposed Supervising Contractor, EPA will notify Settling Work Defendant in writing, and Settling Work Defendant shall submit to EPA a list of contractors, including the qualifications of each contractor, 24 25 which would be acceptable to Settling Work Defendant within thirty (30) Days of 26 receipt of EPA’s disapproval of the contractor previously proposed. EPA will 27 28 provide written notice of the names of any contractor(s) that it disapproves and an LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 28 - 1 authorization to proceed with respect to any of the other contractors. Settling 2 Work Defendant may select any contractor from that list that is not disapproved 3 4 5 and shall notify EPA of the name of the contractor selected within twenty-one (21) Days of EPA’s authorization to proceed. 6 c. If EPA fails to provide written notice of its authorization to 7 8 proceed or disapproval as provided in this Paragraph and this failure prevents 9 Settling Work Defendant from meeting one or more of the deadlines in a plan 10 11 approved by EPA pursuant to this Consent Decree, Settling Work Defendant may 12 seek relief under Section XVIII (Force Majeure). 13 14 15 16 11. Settling Work Defendant Contracting and Participation of Water Purveyor. a. Settling Work Defendant may, upon EPA approval, contract 17 18 some or all of the Remedial Action portion of the Work to a qualified public water 19 purveyor or other qualified person; provided however, contracting the Remedial 20 21 22 23 Action portion of the Work to a qualified public water purveyor or other qualified person does not impact or alter Settling Work Defendant’s or UTC’s obligations under this Consent Decree. 24 25 26 b. If Settling Work Defendant, with the prior written approval of the United States on behalf of EPA and Federal Settling Parties, enters into an 27 28 agreement with a water purveyor or other person to conduct work or reimburse the LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 29 - 1 costs of work relating to Basin Contaminants or contaminants of concern relating 2 to the Locust Avenue Superfund Site prior to the finalization of OU2/OU3 ROD, 3 4 5 6 the costs of such work shall be treated the same as Work Costs and Future Response Costs and subject to the funding procedures described in Paragraph 57, and otherwise shall be subject to Section XVI (Establishment of Accounts and 7 8 Payments) generally. Such costs will not be so treated if Settling Work Defendant 9 unilaterally enters into such an agreement without the prior written approval of the 10 11 United States on behalf of EPA and the Settling Federal Agencies. 12 13 14 c. In performing the Work, Settling Work Defendant shall not be required to pay to any participating water purveyor materially more than the actual, 15 incremental cost that such water purveyor incurs in accepting water from Settling 16 Work Defendant, above what would have otherwise been the water purveyor’s 17 18 usual and customary cost of providing potable water to its customers. Such water 19 purveyor’s incremental costs may include, but are not limited to, Work Costs 20 21 22 23 relating to: (1) installing new extraction wells to withdraw contaminated groundwater; (2) operating an existing extraction well; (3) transporting contaminated groundwater to such water purveyor’s treatment system; and / or (4) 24 25 26 in treating contaminated groundwater. 12. Remedial Design and Remedial Action Planning. 27 28 a. Within sixty (60) Days after EPA’s issuance of an authorization LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 30 - 1 to proceed pursuant to Paragraph 10, Settling Work Defendant shall submit to 2 EPA, with copies to the State, Rialto and Colton, a work plan for the design of the 3 4 5 6 Remedial Action at the Locust Avenue Superfund Site (“Remedial Design Work Plan”). The Remedial Design Work Plan shall provide for design of the remedy as required by this Consent Decree and the OU2/OU3 ROD. If a Record of Decision 7 8 has been adopted for only one of the two operable units (OU2 or OU3), and a 9 second Record of Decision is subsequently adopted that requires remedial design 10 11 and remedial action, Settling Work Defendant shall submit to EPA, with copies to 12 the State, Rialto and Colton, an addendum to the approved Remedial Design Work 13 14 Plan for the design of the Remedial Action required by the subsequent Record of 15 Decision. An addendum will be submitted within forty-five (45) Days after EPA 16 provides notice to the Settling Work Defendant that a second ROD has been signed 17 18 by EPA. Upon its approval by EPA, the Remedial Design Work Plan, and any 19 addendums, shall be incorporated into and enforceable under this Consent Decree. 20 21 22 23 b. The Remedial Design Work Plan shall include plans and schedules for implementation of all remedial design tasks identified in the SOW, including but not limited to, plans and schedules for the completion of: (1) a 24 25 preliminary design submission; (2) a pre-final/final design submission; (3) an 26 O&M Plan; (4) a Compliance Monitoring Plan; and (5) a Construction Quality 27 28 Assurance Plan (“CQAP”). The Remedial Design Work Plan shall also include LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 31 - 1 provisions for the following if needed to complete the design: (1) a Remedial 2 Design Investigation sampling and analysis plan (including, but not limited to, a 3 4 5 6 Quality Assurance Project Plan (“QAPP”) in accordance with Section VIII (Quality Assurance, Sampling, and Data Analysis) and a Health and Safety Plan which conforms to the applicable Occupational Safety and Health Administration 7 8 and EPA requirements including, but not limited to, 29 C.F.R. § 1910.120.); (2) a 9 Remedial Design Investigation; (3) a Remedial Design Investigation Report; and 10 11 (4) Groundwater Flow Modeling. In addition, the Remedial Design Work Plan 12 shall include a proposed schedule for completion of the Remedial Action Work 13 14 15 16 Plan. c. Upon approval of the Remedial Design Work Plan by EPA, after a reasonable opportunity for review and comment by the State, Rialto and 17 18 Colton, Settling Work Defendant shall implement the Remedial Design Work Plan. 19 Settling Work Defendant shall submit to EPA, with copies to the State, Rialto and 20 21 22 23 Colton, all plans, reports, and other deliverables required under the approved Remedial Design Work Plan in accordance with the approved schedule for review and approval pursuant to Section XI (EPA Approval of Plans, Reports, and Other 24 25 Deliverables). Unless otherwise directed by EPA, Settling Work Defendant shall 26 not commence further Remedial Design activities at the Locust Avenue Superfund 27 28 Site prior to approval of the Remedial Design Work Plan. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 32 - 1 2 d. The Remedial Design Investigation, if needed, shall provide: (1) updated data needed for the remedial design; and (2) data to address any 3 4 5 6 concerns about the quantity, quality, completeness, or usability of water quality or other data upon which the design will be based. e. Groundwater Flow Modeling, if needed, shall include activities 7 8 needed to determine final groundwater extraction rates and locations for the 9 remedy, including the use of a numeric groundwater flow model, submittal of 10 11 preliminary modeling results to EPA, and submittal of a Groundwater Flow 12 Modeling Report at the completion of the modeling effort. 13 14 f. The preliminary design submission shall include, at a 15 minimum, the following: (1) design criteria; (2) project delivery strategy; (3) 16 preliminary plans, drawings, and sketches; (4) required specifications in outline 17 18 19 form; and (5) preliminary construction schedule. g. The pre-final/final design submission shall include, at a 20 21 22 23 minimum, the following: (1) final plans and specifications; (2) an Operation and Maintenance Plan; and (3) a Compliance Monitoring Plan. A CQAP shall be submitted concurrent with the prefinal plans and specifications. The CQAP, which 24 25 shall detail the approach to quality assurance during construction activities at the 26 Locust Avenue Superfund Site, shall specify a quality assurance official, 27 28 independent of the Supervising Contractor, to conduct a quality assurance program LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 33 - 1 during the construction phase of the project. 2 h. The Operation and Maintenance Plan, shall address material 3 4 5 6 and maintenance needs; recordkeeping; staffing needs; routine data collection and analysis activities; resin and carbon replacement criteria, if applicable; routine reporting to EPA and the State; development of a Health and Safety Plan; potential 7 8 operating problems; waste disposal; development of the Sampling and Analysis 9 Plan (“SAP”) or addendum to an existing SAP; and noncompliance notification to 10 11 EPA and the State. 12 13 14 15 i. The Compliance Monitoring Plan shall address data collection, analysis, and reporting activities needed to demonstrate that the Work satisfies Performance Standards related to hydraulic control. 16 j. The CQAP shall ensure, with a reasonable degree of certainty, 17 18 that the completed RA will meet or exceed all design criteria, plans and 19 specifications, relevant Performance Standards, and other relevant requirements. 20 21 22 23 13. Remedial Action. a. Within sixty (60) Days after the approval of any final design submission, Settling Work Defendant shall submit to EPA, with copies to the State, 24 25 Rialto and Colton, a work plan for the performance of the Remedial Action at the 26 Locust Avenue Superfund Site (“Remedial Action Work Plan”). The Remedial 27 28 Action Work Plan shall provide for construction and implementation of the remedy LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 34 - 1 set forth in the OU2/OU3 ROD and achievement of the Performance Standards, in 2 accordance with this Consent Decree, the OU2/OU3 ROD, the SOW, and the 3 4 5 6 design plans and specifications developed in accordance with the Remedial Design Work Plan and approved by EPA. If additional final design documents are approved after the Remedial Action Work Plan is submitted, addendums to the 7 8 Remedial Action Work Plan shall be submitted for EPA approval, within forty-five 9 (45) Days after the approval of any additional final design submission. Upon its 10 11 approval by EPA, the Remedial Action Work Plan shall be incorporated into and 12 enforceable under this Consent Decree. 13 14 b. The Remedial Action Work Plan shall include the following: 15 (1) schedule for completion of the Remedial Action; (2) method for selection of the 16 contractor(s); (3) schedule for developing and submitting other required Remedial 17 18 Action plans; (4) methods for satisfying permitting requirements; and (5) 19 procedures and plans for the decontamination of equipment and the disposal of 20 21 22 23 contaminated materials. The Remedial Action Work Plan also shall include the methodology for implementing the CQAP and a schedule for implementing all Remedial Action tasks identified in the final design submission and shall identify 24 25 the initial formulation of Settling Work Defendant’s Remedial Action project team 26 (including, but not limited to, the Supervising Contractor). 27 28 c. Upon approval of the Remedial Action Work Plan by EPA, LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 35 - 1 after a reasonable opportunity for review and comment by the State, Rialto and 2 Colton, Settling Work Defendant shall implement the activities required under the 3 4 5 6 Remedial Action Work Plan. Settling Work Defendant shall submit to EPA, with copies to the State, all reports and other deliverables required under the approved Remedial Action Work Plan in accordance with the approved schedule for review 7 8 and approval pursuant to Section XI (EPA Approval of Plans, Reports, and Other 9 Deliverables). Unless otherwise directed by EPA, Settling Work Defendant shall 10 11 not commence physical Remedial Action activities at the Locust Avenue 12 Superfund Site prior to approval of the Remedial Action Work Plan. 13 14 14. Settling Work Defendant shall continue to implement the Remedial 15 Action until the Performance Standards are achieved. Settling Work Defendant 16 shall implement O&M as is required by this Consent Decree. 17 18 19 15. Modification of SOW or Work Plans Required by the SOW. a. If EPA determines that it is necessary to modify the Work 20 21 22 23 specified in the SOW and/or in work plans developed pursuant to the SOW to achieve, maintain, and satisfy the Performance Standards or to carry out and maintain the effectiveness of the remedy or remedies set forth in the OU2/OU3 24 25 ROD, and such modification is consistent with the scope of the remedy or 26 remedies set forth in the OU2/OU3 ROD, then EPA may issue such modification 27 28 in writing and shall notify Settling Work Defendant of such modification. If LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 36 - 1 Settling Work Defendant objects to EPA’s modification made pursuant to this 2 Paragraph, Settling Work Defendant may, within forty-five (45) Days after EPA’s 3 4 notification, seek dispute resolution under Paragraph 80 (Record Review). 5 6 b. The SOW and/or related work plans shall be modified: (1) in accordance with the modification issued by EPA; or (2) if Settling Work 7 8 Defendant invokes dispute resolution, in accordance with the final resolution of the 9 dispute. The modifications shall be incorporated into and enforceable under this 10 11 Consent Decree, and Settling Work Defendant shall implement all work required 12 by such modification. Settling Work Defendant shall incorporate the modification 13 14 15 into the Remedial Design or Remedial Action Work Plan under Paragraphs 12 or 13, as appropriate. 16 c. Nothing in this Paragraph shall be construed to limit EPA’s 17 18 authority to require performance of further response actions as otherwise provided 19 in this Consent Decree. 20 21 22 23 16. Nothing in this Consent Decree, the SOW, or the Remedial Design or Remedial Action Work Plans constitutes a warranty or representation of any kind by Plaintiff that compliance with the Work requirements set forth in the SOW and 24 25 26 the Work Plans will achieve the Performance Standards. 17. OU1, OU2 and OU3 Remedial Activities. The Parties acknowledge 27 28 that OU1 remedial activities pursuant to the OU1 Work Decree and OU2 and OU3 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 37 - 1 remedial activities pursuant to this Consent Decree may be implemented, in part, 2 within a common timeframe. At EPA’s discretion, EPA will seek to coordinate the 3 4 5 6 OU1, OU2, and OU3 remedial activities for the purpose of maintaining the long term sustainability of these remedies. 18. Off-Site Shipment of Waste Material. 7 8 9 a. Settling Work Defendant may ship Waste Material from the Locust Avenue Superfund Site to an off-Site facility only if Settling Work 10 11 Defendant has verified, prior to any shipment, that the off-Site facility is operating 12 in compliance with the requirements of Section 121(d)(3) of CERCLA, 42 U.S.C. 13 14 § 9621(d)(3), and 40 C.F.R. § 300.440, by obtaining a determination from EPA 15 that the proposed receiving facility is operating in compliance with 42 U.S.C. § 16 9621(d)(3) and 40 C.F.R. § 300.440. 17 18 19 b. Settling Work Defendant may ship Waste Material from the Locust Avenue Superfund Site to an out-of-state waste management facility only 20 21 22 23 if, prior to any shipment, Settling Work Defendant provides written notice to the appropriate state environmental official in the receiving facility’s state and to the EPA Project Coordinator. This notice requirement shall not apply to any off-Site 24 25 shipments when the total quantity of all such shipments will not exceed ten (10) 26 cubic yards. The written notice shall include the following information, if 27 28 available: (1) the name and location of the receiving facility; (2) the type and LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 38 - 1 quantity of Waste Material to be shipped; (3) the schedule for the shipment; and 2 (4) the method of transportation. Settling Work Defendant also shall notify the 3 4 5 6 state environmental official referenced above and the EPA Project Coordinator of any major changes in the shipment plan, such as a decision to ship the Waste Material to a different out-of-state facility. Settling Work Defendant shall provide 7 8 the written notice after the award of the contract for Remedial Action construction 9 and before the Waste Material is shipped. 10 11 VII. REMEDY REVIEW 12 13 14 15 16 17 19. Periodic Review. Settling Work Defendant shall conduct any studies and investigations that EPA determines to be necessary in order to permit EPA to conduct reviews of whether the Remedial Action is protective of human health and the environment at least every five (5) years as required by Section 121(c) of 18 19 20 CERCLA, 42 U.S.C. § 9621(c), and any applicable regulations. 20. EPA Selection of Further Response Actions. If EPA determines, at 21 22 23 24 25 26 27 any time, that the Remedial Action is not protective of human health and the environment, EPA may select further response actions for the Locust Avenue Superfund Site in accordance with the requirements of CERCLA and the NCP. 21. Opportunity to Comment. Settling Work Defendant, and if required by Sections 113(k)(2) or 117 of CERCLA, 42 U.S.C. § 9613(k)(2) or 9617, the 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 39 - 1 public will be provided with an opportunity to comment on any further response 2 actions proposed by EPA as a result of the review conducted pursuant to Section 3 4 5 121(c) of CERCLA and to submit written comments for the record during the comment period. 6 7 VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS 8 9 10 22. Quality Assurance. a. Settling Work Defendant shall use quality assurance, quality 11 12 control, and chain of custody procedures for all design, compliance, and 13 monitoring samples in accordance with “EPA Requirements for Quality Assurance 14 15 16 17 Project Plans (QA/R5)” (EPA/240/B-01/003, March 2001, reissued May 2006), “Guidance for Quality Assurance Project Plans (QA/G-5)” (EPA/240/R-02/009, December 2002), and subsequent amendments to such guidelines upon notification 18 19 by EPA to Settling Work Defendant, of such amendment. Amended guidelines 20 shall apply only to procedures conducted after such notification. 21 22 23 24 25 b. Prior to the commencement of any monitoring project under this Consent Decree, Settling Work Defendant shall submit to EPA for approval, after a reasonable opportunity for review and comment by the State, a QAPP that is 26 consistent with the SOW, the NCP, and applicable guidance documents. If 27 relevant to the proceeding, the Parties agree that validated sampling data generated 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 40 - 1 in accordance with the QAPP(s) and reviewed and approved by EPA shall be 2 admissible as evidence, without objection, in any proceeding under this Consent 3 4 5 6 Decree. Settling Work Defendant shall ensure that EPA personnel and its authorized representatives are allowed access at reasonable times to all laboratories utilized by Settling Work Defendant in implementing this Consent Decree. In 7 8 addition, Settling Work Defendant shall ensure that such laboratories shall analyze 9 all samples submitted by EPA pursuant to the QAPP for quality assurance 10 11 monitoring. Settling Work Defendant shall ensure that the laboratories it utilizes 12 for the analysis of samples taken pursuant to this Consent Decree perform all 13 14 analyses according to accepted EPA methods. Accepted EPA methods consist of 15 those methods that are documented in the “USEPA Contract Laboratory Program 16 Statement of Work for Inorganic Analysis, ILM05.4,” the “USEPA Contract 17 18 Laboratory Program Statement of Work for Organic Analysis, SOM01.2,” and any 19 amendments made thereto during the course of the implementation of this Decree; 20 21 22 23 however, upon approval by EPA, Settling Work Defendant may use other analytical methods, including those specified in the most recent update to EPA publication SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical 24 25 Methods, which are as stringent as or more stringent than the CLP-approved 26 methods. Settling Work Defendant shall ensure that all laboratories it uses for 27 28 analysis of samples taken pursuant to this Consent Decree participate in an EPA or LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 41 - 1 EPA-equivalent QA/QC program. Settling Work Defendant shall use only 2 laboratories that have a documented Quality System which complies with 3 4 5 6 ANSI/ASQC E4-1994, “Specifications and Guidelines for Quality Systems for Environmental Data Collection and Environmental Technology Programs” (American National Standard, January 5, 1995), and “EPA Requirements for 7 8 Quality Management Plans (QA/R-2)” (EPA/240/B-01/002, March 2001, reissued 9 May 2006) or equivalent documentation as determined by EPA. EPA may 10 11 consider laboratories accredited under the National Environmental Laboratory 12 Accreditation Program (“NELAP”) as meeting the Quality System requirements. 13 14 Settling Work Defendant shall ensure that all field methodologies utilized in 15 collecting samples for subsequent analysis pursuant to this Consent Decree are 16 conducted in accordance with the procedures set forth in the QAPP approved by 17 18 19 EPA. 23. Upon request, Settling Work Defendant shall allow split or duplicate 20 21 22 23 samples to be taken by EPA or its authorized representatives. Settling Work Defendant shall notify EPA not less than twenty-eight (28) Days in advance of any sample collection activity unless shorter notice is agreed to by EPA. In addition, 24 25 EPA shall have the right to take any additional samples that EPA deems necessary. 26 Upon request, EPA shall allow Settling Work Defendant to take split or duplicate 27 28 samples of any samples it takes as part of Plaintiff’s oversight of Settling Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 42 - 1 Defendant’s implementation of the Work. 2 24. Settling Work Defendant shall submit to EPA copies of the results of 3 4 5 6 all sampling and/or tests or other data obtained or generated by or on behalf of Settling Work Defendant with respect to the Locust Avenue Superfund Site and/or the implementation of this Consent Decree unless EPA agrees otherwise. Settling 7 8 Work Defendant is not required to submit a detailed interpretive report when 9 submitting unvalidated sampling and/or tests results to EPA. 10 25. 11 12 13 14 Notwithstanding any provision of this Consent Decree, the United States retains all of its information gathering and inspection authorities and rights, including enforcement actions, for information gathering and inspection authorities 15 and rights, under CERCLA, RCRA, and any other applicable statutes or 16 regulations. 17 18 IX. ACCESS 19 20 26. Access by Settling Work Defendant and UTC. If the Locust Avenue 21 22 23 24 25 26 27 Superfund Site, or any other real property where access is needed or land/water use restrictions are needed, is owned or controlled by Settling Work Defendant or UTC: a. Settling Work Defendant and UTC shall, commencing on the date of lodging of the Consent Decree, provide the United States and its 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 43 - 1 representatives, contractors, and subcontractors, with access at all reasonable 2 times, and, where feasible, with three (3) working days’ notice, to any portions of 3 4 5 6 the Locust Avenue Superfund Site, or such other real property, over which it has ownership or control, to conduct any activity regarding the Consent Decree including, but not limited to, the following activities: 7 8 (1) Monitoring the Work; 9 (2) Verifying any data or information submitted to the (3) Conducting investigations regarding contamination at or 10 11 12 13 14 United States; near the Locust Avenue Superfund Site; 15 (4) Obtaining samples; 16 (5) Assessing the need for, planning, or implementing 17 18 19 additional response actions at or near the Locust Avenue Superfund Site; (6) Assessing implementation of quality assurance and 20 21 22 23 quality control practices as defined in the approved QAPP; (7) Implementing the Work pursuant to the conditions set forth in Paragraph 100 (Work Takeover); 24 25 26 (8) Inspecting and copying records, operating logs, contracts, or other documents maintained or generated by Settling Work Defendant or its 27 28 agents, consistent with Section XXIV (Access to Information); LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 44 - (9) 1 2 Assessing Settling Work Defendant’s compliance with the Consent Decree; and 3 (10) Determining whether the Locust Avenue Superfund Site 4 5 6 or other real property is being used in a manner that is prohibited or restricted under this Consent Decree, or that may need to be prohibited or restricted under the 7 8 Consent Decree. 9 b. Commencing on the date of lodging of the Consent Decree, 10 11 Settling Work Defendant or UTC shall not use the Locust Avenue Superfund Site, 12 or such other real property in any manner that EPA determines will pose an 13 14 unacceptable risk to human health or to the environment due to exposure to Waste 15 Material or interfere with or adversely affect the implementation, integrity, or 16 protectiveness of the Remedial Action. 17 18 19 27. If the Locust Avenue Superfund Site, or any other real property where access and/or land/water use restrictions are needed is owned or controlled by 20 21 22 23 persons other than any Party to this Consent Decree, then Settling Work Defendant shall use its best efforts to secure from such persons: a. An agreement to provide access thereto for the United States 24 25 and Settling Work Defendant, and its representatives, contractors, and 26 subcontractors, to conduct any activity regarding the Consent Decree including, 27 28 but not limited to, the activities listed in Paragraph 26a.; and LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 45 - b. 1 2 An agreement, enforceable by Settling Work Defendant and the United States, to refrain from using the Locust Avenue Superfund Site, or such 3 4 5 6 other real property, in any manner that EPA determines will pose an unacceptable risk to human health or to the environment due to exposure to Waste Materials or interfere with or adversely affect the implementation, integrity, or protectiveness of 7 8 the Remedial Action. The agreement shall include, but not be limited to the 9 execution and recordation in the appropriate land records office of Proprietary 10 11 Controls, that grant a right of access to conduct any activity regarding the Consent 12 Decree including, but not limited to, those activities listed in Paragraph 26a. 13 14 28. For purposes of Paragraph 27, “best efforts” include the payment of 15 reasonable sums of money to obtain access, an agreement to restrict land/water 16 use, a Proprietary Control, and/or an agreement to release or subordinate a prior 17 18 lien or encumbrance. If, after Settling Work Defendant has exhausted its best 19 efforts, Settling Work Defendant has not: (a) obtained agreements to provide 20 21 22 23 access, restrict land/water use or record Proprietary Controls, as required by Paragraph 27; or (b) obtained, pursuant to Paragraph 27, agreements from the holders of prior liens or encumbrances to release or subordinate such liens or 24 25 encumbrances to the Proprietary Controls, Settling Work Defendant shall promptly 26 notify the United States in writing, and shall include in that notification a summary 27 28 of the steps that Settling Work Defendant has taken to attempt to comply with LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 46 - 1 Paragraph 27. The United States will, as it deems appropriate, assist Settling Work 2 Defendant in obtaining access, agreements to restrict land/water use, Proprietary 3 4 5 6 Controls, or the release or subordination of a prior lien or encumbrance. Settling Work Defendant shall reimburse the United States under Section XVI (Establishment of Accounts and Payments), for all costs incurred, direct or 7 8 indirect, by the United States in obtaining such access, agreements to restrict 9 land/water use, Proprietary Controls, and/or the release/subordination of prior liens 10 11 or encumbrances including, but not limited to, the cost of attorney time and the 12 amount of monetary consideration paid or just compensation. 13 14 29. If EPA determines that Institutional Controls in the form of state or 15 local laws, regulations, ordinances, zoning restrictions, or other governmental 16 controls are needed, Settling Work Defendant shall cooperate with EPA and the 17 18 19 State’s efforts to secure and ensure compliance with such governmental controls. 30. In the event that any Settling Federal Agencies have or acquire an 20 21 22 23 interest in any real property within the Locust Avenue Superfund Site, or other affected property, that Settling Federal Agency shall provide reasonable access to EPA and/or Settling Work Defendant, subject to the provisions of federal law and 24 25 26 regulations, to effectuate the response actions set forth in this Consent Decree. 31. Notwithstanding any provision of the Consent Decree, the United 27 28 States and the State retain all of their access authorities, access rights, rights to LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 47 - 1 require Institutional Controls, and related enforcement authorities under CERCLA, 2 RCRA, and any other applicable statute, regulations, municipal codes, or 3 4 ordinances. 5 X. 6 7 8 32. REPORTING REQUIREMENTS In addition to any other requirement of this Consent Decree, 9 commencing thirty (30) Days after EPA provides Settling Work Defendant notice 10 that the OU2/OU3 ROD is signed, Settling Work Defendant shall submit to EPA, 11 12 with copies to the State, Rialto and Colton, monthly progress reports that: (a) 13 describe deliverables submitted and actions taken during the previous month on 14 15 16 17 each active task required by the SOW or the approved RD or RA Work Plans; (b) describe problems arising since the previous report and steps planned or underway to mitigate the problems; (c) describe actions scheduled for the next two (2) 18 19 months; (d) describe any anticipated changes in the schedule; (e) describe the 20 nature of, duration of, and response to any noncompliance with Performance 21 22 Standards or other requirements; and (f) describe any community relations 23 activities completed during the previous month or planned for the next two (2) 24 months. Progress reports are due by the tenth (10th) Day of every month. Settling 25 26 Work Defendant shall submit these progress reports to EPA, with copies to the 27 State, Rialto and Colton, by the tenth (10th) Day of every month after the 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 48 - 1 OU2/OU3 ROD is signed until EPA notifies Settling Work Defendant pursuant to 2 Paragraph 52b. of Section XIV (Certification of Completion of the Work). Upon 3 4 5 6 EPA’s written approval, Settling Work Defendant may submit the progress reports described in this Paragraph on a quarterly basis. If requested by EPA, Settling Work Defendant shall also provide briefings for EPA to discuss the progress of the 7 8 Work. Upon completion of the Construction of the Remedial Action, Settling 9 Work Defendant shall submit to EPA, with a copy to Rialto and Colton, annual 10 11 reports on the effectiveness of the Remedial Action. Settling Work Defendant is 12 not required to submit a detailed interpretive report when submitting unvalidated 13 14 15 16 sampling and/or tests results to EPA. 33. Settling Work Defendant shall notify EPA of any change in the schedule described in the monthly progress report for the performance of any 17 18 activity, including, but not limited to, data collection and implementation of work 19 plans, no later than seven (7) Days prior to the performance of the activity. 20 21 22 23 34. Upon the occurrence of any event during performance of the Work that Settling Work Defendant is required to report pursuant to Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency Planning and 24 25 Community Right-to-Know Act (“EPCRA”), 42 U.S.C. § 11004, Settling Work 26 Defendant, shall within twenty-four (24) hours of the onset of such event, orally 27 28 notify the EPA Project Coordinator or the Alternate EPA Project Coordinator (in LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 49 - 1 the event of the unavailability of the EPA Project Coordinator), or, in the event that 2 neither the EPA Project Coordinator nor Alternate EPA Project Coordinator is 3 4 5 6 available, the Emergency Response Section, Region 9, United States Environmental Protection Agency. These reporting requirements are in addition to the reporting required by CERCLA Section 103 and/or EPCRA Section 304. 7 8 9 35. Within twenty (20) Days of the onset of such an event, Settling Work Defendant shall furnish to EPA, a written report, signed by Settling Work 10 11 Defendant’s Project Coordinator, setting forth the events that occurred and the 12 measures taken, and to be taken, in response thereto. Within forty-five (45) Days 13 14 15 16 of the conclusion of such an event, Settling Work Defendant shall submit a report to EPA setting forth all actions taken in response thereto. 36. Settling Work Defendant shall submit all plans, reports, data, written 17 18 notifications, and other deliverables required by the SOW, the Remedial Design 19 Work Plan, the Remedial Action Work Plan, or any other approved plans to EPA 20 21 22 23 in accordance with the schedules set forth in such plans. Settling Work Defendant shall simultaneously submit copies of all such plans, reports, data, written notifications, and other deliverables to the State. Unless directed otherwise by 24 25 EPA, Settling Work Defendant shall submit, in electronic form, all or any portion 26 of any deliverables Settling Work Defendant is required to submit pursuant to the 27 28 provisions of this Consent Decree. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 50 - 1 2 37. All deliverables submitted by Settling Work Defendant to EPA that purport to document Settling Work Defendant’s compliance with the terms of this 3 4 5 Consent Decree shall be signed by an authorized representative of Settling Work Defendant. 6 7 XI. 8 9 38. 10 EPA APPROVAL OF PLANS, REPORTS, AND OTHER DELIVERABLES Initial Submissions. a. After review of any plan, report, or other deliverable that is 11 12 required to be submitted for approval pursuant to this Consent Decree, EPA, shall: 13 (1) approve, in whole or in part, the submission; (2) approve the submission upon 14 15 16 specified conditions; (3) disapprove, in whole or in part, the submission; or (4) any combination of the foregoing. 17 b. EPA also may modify the initial submission to cure deficiencies 18 19 in the submission if: (1) EPA determines that disapproving the submission and 20 awaiting a resubmission would cause substantial disruption to the Work; or (2) 21 22 23 24 25 26 27 previous submission(s) have been disapproved due to material defects and the deficiencies in the initial submission under consideration indicate a bad faith lack of effort to submit an acceptable plan, report, or deliverable. 39. Resubmissions. Upon receipt of a notice of disapproval under Paragraph 38a., or if required by a notice of approval upon specified conditions 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 51 - 1 under Paragraph 38a., Settling Work Defendant shall, within fourteen (14) Days, or 2 within thirty (30) Days for the Annual Performance Evaluation Report, Remedial 3 4 5 6 Design Investigation Report, and RA Report, or such longer time as specified by EPA in such notice, correct the deficiencies and resubmit the plan, report, or other deliverable for approval. After review of the resubmitted plan, report, or other 7 8 deliverable, EPA may: (a) approve, in whole or in part, the resubmission; (b) 9 approve the resubmission upon specified conditions; (c) modify the resubmission; 10 11 (d) disapprove, in whole or in part, the resubmission, requiring Settling Work 12 Defendant to correct the deficiencies; or (e) any combination of the foregoing. 13 14 40. Material Defects. If an initially submitted or resubmitted plan, report, 15 or other deliverable contains a material defect, and the plan, report, or other 16 deliverable is disapproved or modified by EPA under Paragraph 38 or Paragraph 17 18 39 due to such material defect, then the material defect shall constitute a lack of 19 compliance for purposes of Paragraph 83. The provisions of Section XIX (Dispute 20 21 22 23 Resolution) and Section XX (Stipulated Penalties) shall govern the accrual and payment of any stipulated penalties regarding Settling Work Defendant’s submissions under this Section. 24 25 26 41. Implementation. Upon approval, approval upon conditions, or modification by EPA under Paragraph 38 or 39, of any plan, report, or other 27 28 deliverable, or any portion thereof: (a) such plan, report, or other deliverable, or LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 52 - 1 portion thereof, shall be incorporated into and enforceable under this Consent 2 Decree; and (b) Settling Work Defendant shall take any action required by such 3 4 5 6 plan, report, or other deliverable, or portion thereof, subject only to its right to invoke the dispute resolution procedures set forth in Section XIX (Dispute Resolution) with respect to the modifications or conditions made by EPA. The 7 8 implementation of any non-deficient portion of a plan, report, or other deliverable 9 submitted or resubmitted under Paragraphs 38 or 39 shall not relieve Settling Work 10 11 Defendant of any liability for stipulated penalties under Section XX (Stipulated 12 Penalties). 13 14 XII. PROJECT COORDINATORS 15 16 17 42. Within fourteen (14) Days after EPA provides Settling Work Defendant notice that the OU2/OU3 ROD is signed, Settling Work Defendant and 18 19 EPA will notify each other, in writing, of the name, address, and telephone number 20 of their respective designated Project Coordinators and Alternate Project 21 22 23 24 25 Coordinators. If a Project Coordinator or Alternate Project Coordinator initially designated is changed, the identity of the successor will be given to the other Parties at least five (5) working days before the change occurs, unless 26 impracticable, but in no event later than the actual day the change is made. 27 Settling Work Defendant’s Project Coordinator shall be subject to disapproval by 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 53 - 1 EPA and shall have the technical expertise sufficient to adequately oversee all 2 aspects of the Work. Settling Work Defendant’s Project Coordinator shall not be 3 4 5 6 an attorney for Settling Work Defendant in this matter. He or she may assign other representatives, including other contractors, to serve as a representative for oversight of performance of daily operations during remedial activities. 7 8 9 43. EPA may designate other representatives, including, but not limited to, EPA employees and federal contractors and consultants, to observe and monitor 10 11 the progress of any activity undertaken pursuant to this Consent Decree. EPA’s 12 Project Coordinator and Alternate Project Coordinator shall have the authority 13 14 lawfully vested in a Remedial Project Manager (“RPM”) and an On-Scene 15 Coordinator (“OSC”) by the NCP, 40 C.F.R. Part 300. EPA’s Project Coordinator 16 or Alternate Project Coordinator shall have authority, consistent with the NCP, to 17 18 halt any Work required by this Consent Decree and to take any necessary response 19 action when he or she determines that conditions at the Locust Avenue Superfund 20 21 22 23 Site constitute an emergency situation or may present an immediate threat to public health or welfare or the environment due to release or threatened release of Waste Material. 24 25 26 44. EPA’s Project Coordinator and Settling Work Defendant’s Project Coordinator will communicate regularly. 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 54 - XIII. 1 PERFORMANCE GUARANTEE 2 3 4 5 6 7 8 45. In order to ensure the full and final completion of the Work, Settling Work Defendant shall establish and maintain a performance guarantee, initially in the amount of twenty-one million five hundred thousand dollars ($21,500,000), for the benefit of EPA (hereinafter “Estimated Cost of the Work”). Furthermore, UTC will assume all Settling Work Defendant’s obligations under this Consent Decree 9 10 in the event Settling Work Defendant defaults on those obligations, for the benefit 11 of EPA, and the United States may then enforce those obligations as to UTC 12 13 14 15 pursuant to this Consent Decree. This performance guarantee, which must be satisfactory in form and substance to EPA, shall be in the form of one or more of the following mechanisms (provided that, if Settling Work Defendant intends to 16 17 use multiple mechanisms, such multiple mechanisms shall be limited to surety 18 bonds guaranteeing payment, letters of credit, trust funds, and insurance policies): 19 20 21 22 23 a. A surety bond unconditionally guaranteeing payment and/or performance of the Work that is issued by a surety company among those listed as acceptable sureties on federal bonds as set forth in Circular 570 of the U.S. 24 Department of the Treasury; 25 b. One or more irrevocable letters of credit, payable to or at the 26 27 direction of EPA, that is issued by one or more financial institution(s): (1) that has 28 the authority to issue letters of credit, and (2) whose letter-of-credit operations are LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 55 - 1 regulated and examined by a federal or state agency; 2 c. A trust fund established for the benefit of EPA that is 3 4 5 6 administered by a trustee: (1) that has the authority to act as a trustee, and (2) whose trust operations are regulated and examined by a federal or state agency. For purposes of this Paragraph, the Locust Avenue Superfund Site OU2/OU3 ROD 7 8 Trust Fund may qualify as a performance guarantee mechanism, if it is properly 9 established consistent with this Paragraph and pursuant to other requirements of 10 11 this Consent Decree; 12 13 14 d. A policy of insurance that: (1) provides EPA with acceptable rights as a beneficiary thereof; and (2) is issued by an insurance carrier: (a) that 15 has the authority to issue insurance policies in the applicable jurisdiction(s), and 16 (b) whose insurance operations are regulated and examined by a federal or state 17 18 19 agency; e. A demonstration by Settling Work Defendant that it meets the 20 21 22 23 financial test criteria of 40 C.F.R. § 264.143(f) with respect to the Estimated Cost of the Work (plus the amount(s) of any other federal or any state environmental obligations financially assured through the use of a financial test or guarantee), 24 25 provided that all other requirements of 40 C.F.R. § 264.143(f) are met to EPA’s 26 satisfaction; or 27 28 f. A written guarantee to fund or perform the Work executed in LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 56 - 1 favor of EPA by one or more of the following: (1) a direct or indirect parent 2 company of a Settling Work Defendant, or (2) a company that has a “substantial 3 4 5 6 business relationship” (as defined in 40 C.F.R. § 264.141(h)) with Settling Work Defendant; provided, however, that any company providing such a guarantee must demonstrate to the satisfaction of EPA that it satisfies the financial test and 7 8 reporting requirements for owners and operators set forth in subparagraphs (1) 9 through (8) of 40 C.F.R. § 264.143(f) with respect to the Estimated Cost of the 10 11 Work (plus the amount(s) of any other federal or any state environmental 12 obligations financially assured through the use of a financial test or guarantee) that 13 14 15 16 it proposes to guarantee hereunder. 46. Within thirty (30) Days after the Effective Date, Settling Work Defendant shall execute or otherwise finalize all instruments or other documents 17 18 required in order to make the selected performance guarantee(s) legally binding, 19 and such performance guarantee(s) shall thereupon be fully effective. Within sixty 20 21 22 23 (60) Days of the Effective Date, Settling Work Defendant shall submit copies of all executed and/or otherwise finalized instruments or other documents required in order to make the selected performance guarantee(s) legally binding to the EPA 24 25 Regional Financial Management Officer in accordance with Section XXV (Notices 26 and Submissions), with a copy to the United States and EPA as specified in Section 27 28 XXV (Notices and Submissions). LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 57 - 1 2 47. If, at any time after the Effective Date and before issuance of the Certification of Completion of the Work pursuant to Paragraph 52, Settling Work 3 4 5 6 Defendant provides a performance guarantee for completion of the Work by means of a demonstration or guarantee pursuant to Paragraphs 45 or 46, Settling Work Defendant shall also comply with the other relevant requirements of 40 C.F.R. 7 8 § 264.143(f) relating to these mechanisms unless otherwise provided in this 9 Consent Decree, including but not limited to: (a) the initial submission of required 10 11 financial reports and statements from the relevant entity’s chief financial officer 12 (“CFO”) and independent certified public accountant (“CPA”), in the form 13 14 prescribed by EPA in its financial test sample CFO letters and CPA reports 15 available at: 16 http://www.epa.gov/compliance/resources/policies/cleanup/superfund/fa-test- 17 18 samples.pdf; (b) the annual re-submission of such reports and statements within 19 ninety (90) Days after the close of each such entity’s fiscal year; and (c) the prompt 20 21 22 23 notification of EPA, after each such entity determines that it no longer satisfies the financial test requirements set forth at 40 C.F.R. § 264.143(f)(1) and in any event within ninety (90) Days after the close of any fiscal year in which such entity no 24 25 longer satisfies such financial test requirements. For purposes of the performance 26 guarantee mechanisms specified in this Section, references in 40 C.F.R. Part 264, 27 28 Subpart H, to “closure,” “post-closure,” and “plugging and abandonment” shall be LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 58 - 1 deemed to include the Work; the terms “current closure cost estimate,” “current 2 post-closure cost estimate,” and “current plugging and abandonment cost estimate” 3 4 5 6 shall be deemed to include the Estimated Cost of the Work; the terms “owner” and “operator” shall be deemed to refer to Settling Work Defendant making a demonstration under Paragraph 45; and the terms “facility” and “hazardous waste 7 8 9 facility” shall be deemed to include the Locust Avenue Superfund Site. 48. In the event that EPA determines at any time that a performance 10 11 guarantee provided by Settling Work Defendant pursuant to this Section is 12 inadequate or otherwise no longer satisfies the requirements set forth in this 13 14 Section, whether due to an increase in the estimated cost of completing the Work 15 (the Estimated Cost of the Work will need to be adjusted when the OU2/OU3 ROD 16 is finalized based upon the estimated cost of that remedy) or for any other reason, 17 18 or in the event that any Settling Work Defendant becomes aware of information 19 indicating that a performance guarantee provided pursuant to this Section is 20 21 22 23 inadequate or otherwise no longer satisfies the requirements set forth in this Section, whether due to an increase in the estimated cost of completing the Work or for any other reason, Settling Work Defendant, within thirty (30) Days of receipt 24 25 of notice of EPA’s determination or, as the case may be, within thirty (30) Days of 26 Settling Work Defendant becoming aware of such information, shall obtain and 27 28 present to EPA for approval, a proposal for a revised or alternative form of LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 59 - 1 performance guarantee listed in Paragraph 45 that satisfies all requirements set 2 forth in this Section; provided, however, that if Settling Work Defendant cannot 3 4 5 6 obtain such revised or alternative form of performance guarantee within such thirty (30) Day period, and provided further that Settling Work Defendant shall have commenced to obtain such revised or alternative form of performance guarantee 7 8 within such thirty (30) Day period, and thereafter diligently proceeds to obtain the 9 same, EPA shall extend such period for such time as is reasonably necessary for 10 11 Settling Work Defendant in the exercise of due diligence to obtain such revised or 12 alternative form of performance guarantee, such additional period not to exceed 13 14 sixty (60) Days. On Day thirty (30), Settling Work Defendant shall provide to 15 EPA, a status report on its efforts to obtain the revised or alternative form of 16 guarantee. In seeking approval for a revised or alternative form of performance 17 18 guarantee, Settling Work Defendant shall follow the procedures set forth in 19 Paragraph 50b. Settling Work Defendant’s inability to post a performance 20 21 22 23 guarantee for completion of the Work shall in no way excuse performance of any other requirements of this Consent Decree, including, without limitation, the obligation of Settling Work Defendant to complete the Work in strict accordance 24 25 26 with the terms of this Consent Decree. 49. Funding for Work Takeover. The commencement of any Work 27 28 Takeover pursuant to Paragraph 100 shall trigger EPA’s right to receive the benefit LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 60 - 1 of any performance guarantee(s) provided pursuant to Paragraphs 45 – 48, and at 2 such time EPA shall have immediate access to resources guaranteed under any 3 4 5 6 such performance guarantee(s), whether in cash or in kind, as needed to continue and complete the Work assumed by EPA under the Work Takeover. Upon the commencement of any Work Takeover, if: (a) for any reason EPA is unable to 7 8 promptly secure the resources guaranteed under any such performance 9 guarantee(s), whether in cash or in kind, necessary to continue and complete the 10 11 Work assumed by EPA under the Work Takeover, or (b) in the event that the 12 performance guarantee involves a demonstration of satisfaction of the financial test 13 14 criteria pursuant to Paragraph 45 or 46, Settling Work Defendant (or in the case of 15 Paragraphs 45 and 45f.(2), the guarantor) shall immediately upon written demand 16 from EPA deposit into a special account within the EPA Hazardous Substance 17 18 Superfund or such other account as EPA may specify, in immediately available 19 funds and without setoff, counterclaim, or condition of any kind, a cash amount up 20 21 22 23 to but not exceeding the estimated cost of completing the Work as of such date as determined by EPA. In addition, if at any time EPA is notified by the issuer of a performance guarantee that such issuer intends to cancel the performance 24 25 guarantee mechanism it has issued, then, unless Settling Work Defendant provides 26 a substitute performance guarantee mechanism in accordance with this Section, no 27 28 later than thirty (30) Days prior to the impending cancellation date, EPA shall be LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 61 - 1 entitled (as of and after the date that is thirty (30) Days prior to the impending 2 cancellation) to draw fully on the funds guaranteed under the then-existing 3 4 5 6 performance guarantee. All EPA Work Takeover costs not reimbursed under this Paragraph shall be reimbursed under Section XVI (Establishment of Accounts and Payments). 7 8 9 50. Modification of Amount and/or Form of Performance Guarantee. a. Reduction of Amount of Performance Guarantee. If Settling 10 11 Work Defendant believes that the estimated cost of completing the Work has 12 diminished below the amount set forth in Paragraph 45, Settling Work Defendant 13 14 may, on any anniversary of the Effective Date, or at any other time agreed to by 15 EPA and Settling Work Defendant, petition EPA in writing to request a reduction 16 in the amount of the performance guarantee provided pursuant to this Section so 17 18 that the amount of the performance guarantee is equal to the estimated cost of 19 completing the Work. Settling Work Defendant shall submit a written proposal for 20 21 22 23 such reduction to EPA that shall specify, at a minimum, the estimated cost of completing the Work and the basis upon which such cost was calculated. In seeking approval for a reduction in the amount of the performance guarantee, 24 25 Settling Work Defendant shall follow the procedures set forth in Paragraph 50 for 26 requesting a revised or alternative form of performance guarantee, except as 27 28 specifically provided in this Paragraph. If EPA decides to accept Settling Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 62 - 1 Defendant’s proposal for a reduction in the amount of the performance guarantee, 2 either to the amount set forth in Settling Work Defendant’s written proposal or to 3 4 5 6 some other amount as selected by EPA, EPA will notify Settling Work Defendant of such decision in writing of the notification. Upon EPA’s acceptance of a reduction in the amount of the performance guarantee, the Estimated Cost of the 7 8 Work shall be deemed to be the estimated cost of completing the Work set forth in 9 EPA’s written decision. After receiving EPA’s written decision, Settling Work 10 11 Defendant may reduce the amount of the performance guarantee in accordance 12 with and to the extent permitted by such written acceptance and shall submit copies 13 14 of all executed and/or otherwise finalized instruments or other documents required 15 in order to make the selected performance guarantee(s) legally binding in 16 accordance with Paragraph 50b. In the event of a dispute, Settling Work 17 18 Defendant may reduce the amount of the performance guarantee required 19 hereunder only in accordance with a final administrative or judicial decision 20 21 22 23 resolving such dispute pursuant to Section XIX (Dispute Resolution). No change to the form or terms of any performance guarantee provided under this Section, other than a reduction in amount, is authorized except as provided in Paragraphs 48 24 25 26 or 50b. b. Change of Form of Performance Guarantee. 27 28 (1) If, after the Effective Date, Settling Work Defendant LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 63 - 1 desires to change the form or terms of any performance guarantee(s) provided 2 pursuant to this Section, Settling Work Defendant may, on any anniversary of the 3 4 5 6 Effective Date, or at any other time agreed to by the United States on behalf of EPA, petition EPA in writing, to request a change in the form or terms of the performance guarantee provided hereunder. The submission of such proposed 7 8 revised or alternative performance guarantee shall be as provided in Paragraph 9 50b. Any decision made by EPA on a petition submitted under this Paragraph 10 11 shall be made in EPA’s sole and unreviewable discretion, and such decision shall 12 not be subject to challenge by Settling Work Defendant pursuant to the dispute 13 14 15 16 resolution provisions of this Consent Decree or in any other forum. (2) Settling Work Defendant shall submit a written proposal for a revised or alternative performance guarantee to EPA, which shall specify, at a 17 18 minimum, the estimated cost of completing the Work, the basis upon which such 19 cost was calculated, and the proposed revised performance guarantee, including all 20 21 22 23 proposed instruments or other documents required in order to make the proposed performance guarantee legally binding. The proposed revised or alternative performance guarantee must satisfy all requirements set forth or incorporated by 24 25 reference in this Section. Settling Work Defendant shall submit such proposed 26 revised or alternative performance guarantee to the EPA Regional Financial 27 28 Management Officer in accordance with Section XXV (Notices and Submissions). LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 64 - 1 EPA will notify Settling Work Defendant in writing of its decision to accept or 2 reject a revised or alternative performance guarantee submitted pursuant to this 3 4 5 6 Paragraph. Within thirty (30) Days after receiving a written decision approving the proposed revised or alternative performance guarantee, Settling Work Defendant shall execute and/or otherwise finalize all instruments or other documents required 7 8 in order to make the selected performance guarantee(s) legally binding in a form 9 substantially identical to the documents submitted to EPA as part of the proposal, 10 11 and such performance guarantee(s) shall thereupon be fully effective. Settling 12 Work Defendant shall submit copies of all executed and/or otherwise finalized 13 14 instruments or other documents required in order to make the selected performance 15 guarantee(s) legally binding to the EPA Regional Financial Management Officer 16 within sixty (60) Days of receiving a written decision approving the proposed 17 18 revised or alternative performance guarantee in accordance with Section XXV 19 (Notices and Submissions), and to the United States and EPA as specified in 20 21 22 23 Section XXV (Notices and Submissions). c. Release of Performance Guarantee. Settling Work Defendant shall not release, cancel, or discontinue any performance guarantee provided 24 25 pursuant to this Section except as provided in this Paragraph. If Settling Work 26 Defendant receives written notice from EPA in accordance with Paragraph 52 that 27 28 the Work has been fully and finally completed in accordance with the terms of this LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 65 - 1 Consent Decree, or if EPA otherwise so notifies Settling Work Defendant in 2 writing, Settling Work Defendant may thereafter release, cancel, or discontinue the 3 4 5 6 performance guarantee(s) provided pursuant to this Section. In the event of a dispute, Settling Work Defendant may release, cancel, or discontinue the performance guarantee(s) required hereunder only in accordance with a final 7 8 administrative or judicial decision resolving such dispute pursuant to Section XIX 9 (Dispute Resolution). 10 11 XIV. CERTIFICATION OF COMPLETION OF THE WORK 12 13 14 15 16 17 51. Completion of Remedial Action. a. Within ninety (90) Days after Settling Work Defendant concludes that the Remedial Action has been fully performed and the Performance Standards have been achieved, Settling Work Defendant shall schedule and 18 19 conduct a pre-certification inspection to be attended by Settling Work Defendant 20 and EPA, with an opportunity for Rialto and Colton to attend at its discretion. If, 21 22 23 24 25 after the pre-certification inspection, Settling Work Defendant still believes that the Remedial Action has been fully performed and the Performance Standards have been achieved, it shall submit a written report requesting certification to EPA for 26 approval, with a copy to the State, pursuant to Section XI (EPA Approval of Plans, 27 Reports, and Other Deliverables), with a copy to Rialto, within thirty (30) Days 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 66 - 1 after the inspection. In the report, a registered professional engineer and Settling 2 Work Defendant’s Project Coordinator shall state that the Remedial Action has 3 4 5 6 been completed in full satisfaction of the requirements of this Consent Decree. The report shall contain the following statement, signed by a responsible corporate official of Settling Work Defendant or Settling Work Defendant’s Project 7 8 9 10 11 12 13 14 15 16 17 Coordinator: I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, 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. If, after completion of the pre-certification inspection and receipt and review of the 18 19 written report, EPA, after reasonable opportunity for review and comment by the 20 State, Rialto and Colton, determines that the Remedial Action or any portion 21 22 23 24 thereof has not been completed in accordance with this Consent Decree or that the Performance Standards have not been achieved, EPA will notify Settling Work Defendant in writing, and provide a copy to Rialto, of the activities that must be 25 26 undertaken by Settling Work Defendant pursuant to this Consent Decree to 27 complete the Remedial Action and achieve the Performance Standards, provided 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 67 - 1 however, that EPA may only require Settling Work Defendant to perform such 2 activities pursuant to this Paragraph to the extent that such activities are consistent 3 4 5 6 with the scope of the remedy set forth in the OU2/OU3 ROD. EPA will set forth in the notice a schedule for performance of such activities consistent with the Consent Decree and the SOW or require Settling Work Defendant to submit a 7 8 schedule to EPA for approval pursuant to Section XI (EPA Approval of Plans, 9 Reports, and Other Deliverables). Settling Work Defendant shall perform all 10 11 activities described in the notice in accordance with the specifications and 12 schedules established pursuant to this Paragraph, subject to its right to invoke the 13 14 15 16 dispute resolution procedures set forth in Section XIX (Dispute Resolution). b. If EPA concludes, based on the initial or any subsequent report requesting Certification of Completion of the Remedial Action and after a 17 18 reasonable opportunity for review and comment by the State, Rialto and Colton, 19 that the Remedial Action has been performed in accordance with this Consent 20 21 22 23 Decree and that the Performance Standards have been achieved, EPA will so certify in writing to Settling Work Defendant and provide a copy to Rialto. This certification shall constitute the Certification of Completion of the Remedial 24 25 Action for purposes of this Consent Decree, including, but not limited to, Section 26 XXII (Covenants by Plaintiff). Certification of Completion of the Remedial 27 28 Action shall not affect Settling Work Defendant’s remaining obligations under this LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 68 - 1 Consent Decree. 2 c. In the event the Remedial Action for OU2 has been fully 3 4 5 6 performed and the Performance Standards have been achieved prior to the Remedial Action for OU3 having been fully performed and the Performance Standards having been achieved, Settling Work Defendant may seek to certify the 7 8 completion of the OU2 Remedial Action as set forth in subparagraphs a. and b. In 9 the event the Remedial Action for OU3 has been fully performed and the 10 11 Performance Standards have been achieved prior to the Remedial Action for OU2 12 having been fully performed and the Performance Standards having been achieved, 13 14 15 16 Settling Work Defendant may seek to certify the completion of the Remedial Action for OU3 as set forth in subparagraphs a. and b. 52. Completion of the Work. 17 18 19 a. Within ninety (90) Days after Settling Work Defendant concludes that the Work, other than any remaining activities required under 20 21 22 23 Section VII (Remedy Review), have been fully performed, Settling Work Defendant shall schedule and conduct a pre-certification inspection to be attended by Settling Work Defendant and EPA. If, after the pre-certification inspection, 24 25 Settling Work Defendant still believes that the Work has been fully performed, 26 Settling Work Defendant shall submit a written report by a registered professional 27 28 engineer to EPA, with a copy to Rialto, stating that the Work has been completed LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 69 - 1 in full satisfaction of the requirements of this Consent Decree. The report shall 2 contain the statement set forth in Paragraph 51, signed by a responsible corporate 3 4 5 6 official of a Settling Work Defendant or Settling Work Defendant’s Project Coordinator. If, after review of the written report, EPA, after reasonable opportunity for review and comment by the State, Rialto and Colton, determines 7 8 that any portion of the Work has not been completed in accordance with this 9 Consent Decree, EPA will notify Settling Work Defendant in writing, and provide 10 11 a copy to Rialto, of the activities that must be undertaken by Settling Work 12 Defendant pursuant to this Consent Decree to complete the Work, provided, 13 14 however, that EPA may only require Settling Work Defendant to perform such 15 activities pursuant to this Paragraph to the extent that such activities are consistent 16 with the scope of the remedy set forth in the OU2/OU3 ROD, as that term is 17 18 defined in Paragraph 15. EPA will set forth in the notice a schedule for 19 performance of such activities consistent with the Consent Decree and the SOW or 20 21 22 23 require Settling Work Defendant to submit a schedule to EPA for approval pursuant to Section XI (EPA Approval of Plans, Reports, and Other Deliverables). Settling Work Defendant shall perform all activities described in the notice in 24 25 accordance with the specifications and schedules established therein, subject to its 26 right to invoke the dispute resolution procedures set forth in Section XIX (Dispute 27 28 Resolution). LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 70 - b. 1 2 If EPA concludes, based on the initial or any subsequent request for Certification of Completion of the Work by Settling Work Defendant, 3 4 5 6 and after a reasonable opportunity for review and comment by the State, Rialto and Colton, that the Work has been performed in accordance with this Consent Decree, EPA will so notify Settling Work Defendant in writing and provide a copy to 7 8 Rialto. 9 c. In the event the Work for OU2 (other than any remaining 10 11 activities required under Section VII (Remedy Review)) has been fully performed 12 prior to the Work for OU3 having been fully performed (other than any remaining 13 14 activities required under Section VII (Remedy Review)), Settling Work Defendant 15 may seek to certify the completion of the Work for OU2 as set forth in above 16 subparagraphs a. and b. In the event the Work for OU3 (other than any remaining 17 18 activities required under Section VII (Remedy Review)) has been fully performed 19 prior to the Work for OU2 having been fully performed (other than any remaining 20 21 22 23 activities required under Section VII (Remedy Review)), Settling Work Defendant may seek to certify the completion of the Work for OU3 as set forth in above subparagraphs a. and b. 24 d. 25 26 If appropriate, Settling Work Defendant may seek simultaneous Certificates of Completion of the Remedial Action and the Work. 27 28 53. RESERVED. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 71 - XV. 1 EMERGENCY RESPONSE 2 3 4 5 6 7 8 54. If any action or occurrence during the performance of the Work which causes or threatens a release of Waste Material from the Locust Avenue Superfund Site that constitutes an emergency situation or may present an immediate threat to public health or welfare or the environment, Settling Work Defendant shall, subject to Paragraph 55, immediately take all appropriate action to prevent, abate, or 9 10 minimize such release or threat of release, and shall immediately notify the EPA’s 11 Project Coordinator, or, if the Project Coordinator is unavailable, EPA’s Alternate 12 13 14 15 Project Coordinator. If neither of these persons is available, Settling Work Defendant shall notify the EPA Emergency Response Unit, Region 9. Settling Work Defendant shall take such actions in consultation with EPA’s Project 16 17 Coordinator or other available authorized EPA officer and in accordance with all 18 applicable provisions of the Health and Safety Plans and any other applicable plans 19 20 or documents developed pursuant to the SOW. In the event that Settling Work 21 Defendant fails to take appropriate response actions as required by this Section, 22 23 and EPA takes such action instead, Settling Work Defendant shall reimburse EPA 24 for all costs of the response action and such costs are not subject to reimbursement 25 from the United States under the terms of this Consent Decree. 26 27 28 55. Subject to Section XXI (Covenants, Releases, and Reservations of Rights), nothing in the preceding Paragraph or in this Consent Decree shall be LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 72 - 1 deemed to limit any authority of the United States: (a) to take all appropriate 2 action to protect human health and the environment or to prevent, abate, respond 3 4 5 6 to, or minimize an actual or threatened release of Waste Material on, at, or from the Locust Avenue Superfund Site, or (b) to direct or order such action, or seek an order from the Court, to protect human health and the environment or to prevent, 7 8 abate, respond to, or minimize an actual or threatened release of Waste Material 9 on, at, or from the Locust Avenue Superfund Site. 10 11 XVI. ESTABLISHMENT OF ACCOUNTS AND PAYMENTS 56. General Statement Regarding Purpose and Use of the OU2/OU3 12 13 14 15 16 17 Locust Avenue Superfund Site Accounts. Subject to other provisions of this Consent Decree, including but not limited to Paragraph 57 below, in the event the United States, Settling Work Party, or UTC receive funds resulting from a 18 19 settlement or Consent Decree with any Future Settling Party after December 31, 20 2012, as part of the Consolidated Federal Action: (a) fifty percent (50%) of such 21 22 23 24 25 payment(s) shall be transferred to the OU2/OU3 Disbursement Special Account to be used for the Work Costs; and (b) fifty percent (50%) of such payments shall be transferred to the OU2/OU3 Locust Avenue Superfund Site Special Account to be 26 retained and used by EPA at EPA’s discretion to conduct or finance response 27 actions at or in connection with the Locust Avenue Superfund Site, or to be 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 73 - 1 transferred by EPA to the EPA Hazardous Substance Superfund, or as otherwise 2 deemed appropriate by EPA. Notwithstanding the prior sentence, with respect to 3 4 5 6 funds received by the United States, Settling Work Defendant, or UTC, resulting from a settlement or Consent Decree with the Estate of Hescox or its insurers, as part of the Consolidated Federal Action: (a) twenty-five percent (25%) of such 7 8 payment(s) shall be paid directly to Settling Work Defendant; (b) twenty-five 9 percent (25%) of such payment(s) shall be transferred to the OU2/OU3 10 11 Disbursement Special Account to be used for the Work Costs; and (c) fifty percent 12 (50%) of such payment(s) shall be transferred to the OU2/OU3 Locust Avenue 13 14 Superfund Site Special Account to be retained and used by EPA at EPA’s 15 discretion to conduct or finance response actions at or in connection with the 16 Locust Avenue Superfund Site, or to be transferred by EPA to the EPA Hazardous 17 18 Substance Superfund, or as otherwise deemed appropriate by EPA. At EPA’s 19 discretion, EPA may establish one account for the OU2/OU3 Locust Avenue 20 21 22 23 Superfund Special Account and for the account defined in the OU1 Work Decree as the B.F. Goodrich Special Account. Any potential funds that the United States on behalf of the Settling Federal Agencies is required to pay to reimburse Settling 24 25 Work Defendant for NCP compliant Work Costs or Future Response Costs 26 pursuant to Paragraphs 56 – 58 and 63 – 66 will be paid directly to Settling Work 27 28 Defendant. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 74 - 1 2 57. The Work Costs and Future Response Costs shall be funded as follows: (a) The first twenty-one million five hundred thousand dollars 3 4 5 6 ($21,500,000), plus an amount equal to the twenty-five percent (25%) paid directly to Settling Work Defendant on behalf of the Estate of Hescox or its insurers as provided in Paragraph 56 above (“Settling Work Defendant’s Initial Funding”), 7 8 shall be paid by Settling Work Defendant; (b) after exhaustion of Settling Work 9 Defendant’s Initial Funding, payments shall be made by Settling Work Defendant 10 11 using money from any insurance recoveries that Settling Work Defendant or UTC 12 receive relating to the RABSP Site that total in excess of sixty-eight million seven 13 14 hundred fifty thousand dollars ($68,750,000); (c) after exhaustion of Settling Work 15 Defendant’s Initial Funding and the funds from any insurance recoveries above 16 sixty-eight million seven hundred fifty thousand dollars ($68,750,000) as described 17 18 in subparagraph (b), Settling Work Defendant may seek reimbursement for NCP 19 compliant Work Costs from the OU2/OU3 Disbursement Special Account; and (d) 20 21 22 23 upon the exhaustion of the funds described in subparagraphs (a), (b), and (c), Settling Work Defendant and the United States on behalf of Settling Federal Agencies shall each be obligated to pay fifty percent (50%) of the remaining NCP 24 25 compliant Work Costs and Future Response Costs (for a total of one hundred 26 percent (100%) of such costs), until the Work is completed with Settling Federal 27 28 Agencies’ payment being in the form of reimbursement to Settling Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 75 - 1 Defendant as described in Paragraphs 56 – 58 and 63 – 66. Settlement funds that 2 the United States, Settling Work Party, or UTC receives from any Future Settling 3 4 5 6 Party after December 31, 2012, as part of the Consolidated Federal Action shall not alter, offset, or reimburse Settling Work Defendant’s obligations under this Consent Decree, except as specifically provided in this Paragraph. Settling Work 7 8 Defendant has represented that it has submitted claims to its insurers in excess of 9 seventy-one million five hundred thousand dollars ($71,500,000) relating to the 10 11 RABSP Site, including over fifty million dollars ($50,000,000) in past costs, fees, 12 or litigation expenses and twenty-one million five hundred thousand dollars 13 14 15 16 ($21,500,000) for the Settling Work Defendant’s Initial Funding. 58. Pursuant to this Consent Decree, and subject to the general reservation in Paragraph 99, Settling Work Defendant is only required to perform and/or fund 17 18 Work up to two million dollars ($2,000,000) for OU3, if such Work or funding is 19 required by EPA. Any funds, up to two million dollars ($2,000,000), spent on 20 21 22 23 Work Costs by Settling Work Defendant for OU3, shall be counted toward Settling Defendant’s Initial Funding pursuant to Paragraph 57. In the event EPA exercises its reservation pursuant to Paragraph 99j. of this Consent Decree or otherwise 24 25 requests Settling Work Defendant to conduct OU3 Work in excess of two million 26 dollars ($2,000,000), and Settling Work Defendant conducts such OU3 Work 27 28 pursuant to this Consent Decree or pursuant to an administrative order, these LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 76 - 1 additional funds shall be counted toward Settling Work Defendant's Initial Funding 2 pursuant to Paragraph 57 and subject to the funding procedures described in 3 4 5 6 Paragraph 57(a) through (d). If Settling Work Defendant conducts OU3 Work in excess of two million dollars ($2,000,000) pursuant to this Consent Decree or pursuant to an administrative order, such OU3 Work shall not require an 7 8 amendment to this Consent Decree and shall be subject to all of the funding and 9 reimbursement terms and conditions of this Consent Decree in the same manner as 10 11 12 13 14 the first two million dollars ($2,000,000) of OU3 Work. 59. Operation and Maintenance of the Remedial Action are included in the Work and, once the funds described in Paragraph 57(a), (b), and (c) have been 15 fully depleted, are subject to Settling Work Defendant and Settling Federal 16 Agencies cost sharing described in Paragraphs 56 – 58 and 63 – 66. 17 18 19 60. Settling Work Defendant will actively assist the United States in pursuing settlement funds from Future Settling Parties and seeking fair and 20 21 22 23 appropriate resolution of its claims against these parties. 61. Settling Work Defendant’s Initial Funding Work Cost Summary and Certification. (a) Settling Work Defendant is required to certify, under penalty of 24 25 perjury, to the United States, EPA, and DOJ, the extent to which it has funded and 26 implemented the Settling Work Defendant’s Initial Funding of Work pursuant to 27 28 Paragraph 57 of this Consent Decree. On or before February 15 of each calendar LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 77 - 1 year, beginning after the OU2/OU3 ROD is signed, and annually each year 2 thereafter until the Settling Work Defendant’s Initial Funding has been exhausted, 3 4 5 6 Settling Work Defendant shall submit to EPA and DOJ a Cost Summary and Certification, as described in subparagraph (b) below, covering Work Costs and Future Response Costs incurred and paid by Settling Work Defendant from 7 8 January 1 to December 31 of the preceding calendar year, if any and; (b) Each 9 Work Cost Summary and Certification shall include a complete and accurate 10 11 written cost summary and certification of the Work Costs and Future Response 12 Costs incurred and paid by Settling Work Defendant for the particular submission, 13 14 excluding costs excluded from disbursement or reimbursement under Paragraph 15 63e. Each Work Cost Summary and Certification pursuant to this subparagraph 16 shall contain the following statement signed by an officer of Settling Work 17 18 Defendant or Settling Work Defendant’s Project Coordinator, who shall be an 19 employee of Settling Work Defendant or UTC: 20 21 22 23 24 25 26 27 28 I certify that, to the best of my knowledge, after thorough investigation and review of Goodrich Corporation’s documentation of Work Costs (and Future Response Costs) incurred and paid for work performed pursuant to a certain Consent Decree entered by the Federal District Court in Central District of California, Case No. 0901864 PSG (SSx) as Docket No. [____] on [DATE] during the period covered by this certification, the information contained in or accompanying this submission is true, accurate, and complete. The documents that I reviewed in support of this certification are attached as Attachment A, hereto. I certify that Goodrich Corporation has not sought or recovered any documented Work Costs or Future Response Costs under any Federal Contract. I further certify that Goodrich LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 78 - 1 2 3 4 5 6 Corporation has not recovered more than sixty-eight million seven hundred fifty thousand dollars ($68,750,000) from its insurers on claims relating to the RABSP Site. I am aware that there are significant penalties for knowingly submitting false information, including the possibility of fine and imprisonment. The officer or Project Coordinator of Settling Work Defendant shall also provide a list of the documents that he or she reviewed in support of the certification. Upon 7 8 request by EPA or DOJ, Settling Work Defendant shall submit to EPA or DOJ, any 9 additional information that EPA or DOJ deems necessary for its review and 10 11 approval of a certification. No accounting is required by this Paragraph if Settling 12 Work Defendant has not incurred Work Costs during the applicable annual period. 13 14 Settling Work Defendant shall not include in any submission costs included in a 15 previous Cost Summary and Certification if those costs have been previously 16 sought or reimbursed. In no event shall Settling Work Defendant submit or be 17 18 entitled to recover from the United States a Work Cost or Future Response Cost 19 more than two (2) years after it has been incurred by Settling Work Defendant. 20 21 22 23 62. Establishment of OU2/OU3 Disbursement Special Account and Reimbursement of Settling Work Defendant’s Expenditures. EPA shall timely establish the OU2/OU3 Disbursement Special Account. Subject to the terms and 24 25 conditions set forth in this Section XVI (Establishment of Accounts and 26 Payments), EPA agrees to make the funds in the OU2/OU3 Disbursement Special 27 28 Account, including Interest earned on the funds in the OU2/OU3 Disbursement LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 79 - 1 Special Account, available for disbursement to Settling Work Defendant as 2 reimbursement for performance of the Work undertaken by Settling Work 3 4 5 6 Defendant (and Future Response Costs paid by Settling Work Defendant) after Settling Work Defendant’s Initial Funding described in Paragraph 57(a), above has been depleted. 7 Requests for Reimbursement from the OU2/OU3 Disbursement 8 63. 9 Special Account. 10 11 12 13 14 a. On or before February 15 of each calendar year beginning after Settling Defendant’s Initial Funding has been depleted and annually thereafter until exhaustion of the funds in the OU2/OU3 Special Disbursement Account, Settling 15 Work Defendant shall submit to EPA and DOJ a Cost Summary and Certification, 16 as defined in Paragraph 61b., covering Work Costs (and Future Response Costs) 17 18 incurred and paid by Settling Work Defendant from January 1 to December 31 of 19 the preceding calendar year. No accounting is required by this Paragraph if 20 21 22 23 Settling Work Defendant has not incurred Work Costs during the applicable annual period. Settling Work Defendant shall not include in any submission costs included in a previous Cost Summary and Certification if those costs have been 24 25 26 previously sought or reimbursed. b. Each Cost Summary and Certification shall include a complete 27 28 and accurate written cost summary and certification of the necessary costs incurred LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 80 - 1 and paid by Settling Work Defendant for the Work Costs (and Future Response 2 Costs) covered by the particular submission, excluding costs excluded from 3 4 5 6 disbursement or reimbursement under subparagraph e. Each Cost Summary and Certification pursuant to this subparagraph shall contain the following statement signed by an officer of Settling Work Defendant or UTC or Settling Work 7 8 Defendant’s Project Coordinator who shall be an employee of Settling Work 9 Defendant or UTC, and by an independent CPA or other person acceptable to 10 11 12 13 14 15 16 17 18 19 20 21 22 23 EPA: I certify that, to the best of my knowledge, after thorough investigation and review of Goodrich Corporation’s documentation of costs incurred and paid for work performed pursuant to a certain Consent Decree entered by the District Court in Central District of California Case No. 09-01864 PSG (SSx) as Docket No. [____] on [DATE] during the period covered by this Cost Summary and Certification, the information contained in or accompanying this submission is true, accurate, and complete. I certify that Goodrich Corporation has not sought or recovered any claimed Work Costs or Future Response Costs from the United States under any Federal Contract. I further certify that Goodrich Corporation has not recovered any claimed Work Costs in excess of sixty-eight million seven hundred fifty thousand dollars ($68,750,000) relating to the RABSP Site, or Future Response Costs from any other source, including its insurers. I am aware that there are significant penalties for knowingly submitting false information, including the possibility of fine and imprisonment. 24 25 The officer or Project Coordinator and the independent CPA or other person 26 acceptable to EPA shall also provide EPA a list of the documents that he or she 27 28 reviewed in support of the Cost Summary and Certification. Upon request by LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 81 - 1 EPA, Settling Work Defendant shall submit to EPA any additional information that 2 EPA deems necessary for its review and approval of a Cost Summary and 3 4 5 6 Certification. c. If EPA or DOJ finds that a Cost Summary and Certification includes a mathematical error, costs excluded from disbursement or reimbursement 7 8 under subparagraph e., costs that are inadequately documented, or costs submitted 9 in a prior Cost Summary and Certification, it will notify Settling Work Defendant 10 11 and provide it an opportunity to cure the deficiency by submitting a revised Cost 12 Summary and Certification. If Settling Work Defendant fails to cure the 13 14 deficiency within thirty (30) Days after being notified of, and given the opportunity 15 to cure, the deficiency, EPA will recalculate Settling Work Defendant’s costs 16 eligible for disbursement for that submission and disburse the corrected amount to 17 18 Settling Work Defendant. Settling Work Defendant may dispute EPA’s 19 recalculation under this Paragraph pursuant to Section XIX (Dispute Resolution). 20 21 22 23 In no event shall Settling Work Defendant be disbursed funds from the OU2/OU3 Disbursement Special Account in excess of amounts properly documented in a Cost Summary and Certification accepted or modified by EPA. 24 25 26 d. Timing, Amount, and Method of Disbursing Funds From the OU2/OU3 Disbursement Special Account. Within thirty (30) Days after EPA’s 27 28 receipt of a Cost Summary and Certification as defined by subparagraphs a. and b., LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 82 - 1 or if EPA has requested additional information under or a revised Cost Summary 2 and Certification under subparagraph c., within thirty (30) Days after receipt of the 3 4 5 6 additional information or revised Cost Summary and Certification, and subject to the conditions set forth in this Section, EPA shall disburse the funds to Settling Work Defendant from the OU2/OU3 Disbursement Special Account. 7 8 9 e. Costs Excluded from Disbursement. The following costs are excluded from, and shall not be sought by Settling Work Defendant for 10 11 disbursement from the OU2/OU3 Disbursement Special Account, for 12 reimbursement under the provisions described in Paragraphs 56 – 58 and 63 – 66, 13 14 or otherwise from the United States: (1) except as specifically provided in this 15 subparagraph, any payments made by Settling Work Defendant to the United 16 States pursuant to this Consent Decree, including, but not limited to, any Interest or 17 18 stipulated penalties paid pursuant to Section XX (Stipulated Penalties); (2) 19 attorneys’ fees and costs, except for reasonable non-litigation attorneys’ fees 20 21 22 23 necessarily related to obtaining access, water rights, or institutional controls, as required by Section IX (Access); (3) costs of any response activities Settling Work Defendant performs that are not required under the terms of this Consent Decree, 24 25 or approved by EPA pursuant to, this Consent Decree; (4) costs related to Settling 26 Work Defendant’s litigation, settlement, development of potential contribution 27 28 claims, or identification of defendants; (5) internal costs of Settling Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 83 - 1 Defendant, including but not limited to, salaries, travel, or in-kind services, except 2 for those costs that represent the work of employees of Settling Work Defendant 3 4 5 6 directly performing the Work; (6) any costs incurred by Settling Work Defendant prior to the Effective Date, except for approved Work completed pursuant to this Consent Decree; (7) any costs incurred by Settling Work Defendant pursuant to 7 8 Section XIX (Dispute Resolution); or (8) any claimed Work Cost from the United 9 States or from any other source, including insurers, however, Settling Work 10 11 Defendant may seek reimbursement from the OU2/OU3 Disbursement Special 12 Account for Future Response Costs after depletion of (1) Settling Work 13 14 Defendant’s Initial Funding; and (2) depletion of all insurance proceeds received 15 by Settling Work Defendant and/or UTC related to the RABSP Site in excess of 16 sixty-eight million seven hundred fifty thousand dollars ($68,750,000). 17 18 19 f. Termination of Disbursements from the OU2/OU3 Disbursement Special Account. EPA’s obligation to disburse funds from the 20 21 22 23 OU2/OU3 Disbursement Special Account under this Consent Decree shall terminate upon EPA’s determination that Settling Work Defendant: (1) has knowingly submitted a materially false or misleading Cost Summary and 24 25 Certification; (2) has submitted a materially inaccurate or incomplete Cost 26 Summary and Certification, and has failed to correct the materially inaccurate or 27 28 incomplete Cost Summary and Certification within sixty (60) Days after being LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 84 - 1 notified of, and given the opportunity to cure, the deficiency; or (3) failed to 2 submit a Cost Summary and Certification as required by subparagraphs a. and b., 3 4 5 6 within sixty (60) Days (or such longer period as EPA agrees) after being notified that EPA intends to terminate its obligation to make disbursements pursuant to this Section because of Settling Work Defendant’s failure to submit the Cost Summary 7 8 and Certification as required by subparagraphs a., b., and c. EPA’s obligation to 9 disburse funds from the OU2/OU3 Disbursement Special Account shall also 10 11 terminate upon EPA’s assumption of performance of any portion of the Work 12 pursuant to Paragraph 100 (Work Takeover), when such assumption of 13 14 performance of the Work is not challenged by Settling Work Defendant or, if 15 challenged, is upheld under Section XIX (Dispute Resolution). Settling Work 16 Defendant may dispute EPA’s termination of special account disbursements under 17 18 Section XIX (Dispute Resolution). EPA’s obligation to disburse funds shall also 19 terminate when all funds, if any, in the account have been exhausted. 20 21 22 23 g. Recapture of Disbursement from OU2/OU3 Disbursement Special Account. (1) Upon termination of disbursements from the OU2/OU3 24 25 Disbursement Special Account under subparagraph f., if EPA has previously 26 disbursed funds from the OU2/OU3 Disbursement Special Account for activities 27 28 specifically related to the reason for termination, i.e., discovery of a materially LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 85 - 1 false or misleading submission after disbursement of funds based on that 2 submission, EPA shall submit a bill to Settling Work Defendant for those amounts 3 4 5 6 already disbursed from the OU2/OU3 Disbursement Special Account specifically related to the reason for termination, plus Interest on that amount covering the period from the date of disbursement of the funds by EPA to the date of repayment 7 8 of the funds by Settling Work Defendant. 9 (2) Within sixty (60) Days after receipt of EPA’s bill, 10 11 Settling Work Defendant shall reimburse the EPA Hazardous Substance Superfund 12 for the total amount billed. Payment shall be made in accordance with Paragraph 13 14 67 (Instructions for Future Response Cost Payments and Stipulated Penalties). (3) 15 16 Upon receipt of payment, EPA may deposit all or any portion thereof in the OU2/OU3 Locust Avenue Superfund Site Special Account, 17 18 the OU2/OU3 Disbursement Special Account, or the EPA Hazardous Substance 19 Superfund. The determination of where to deposit or how to use the funds shall 20 21 22 23 not be subject to challenge by Settling Work Defendant pursuant to the dispute resolution provisions of this Consent Decree or in any other forum. Settling Work Defendant may dispute EPA’s determination as to recapture of funds pursuant to 24 25 26 Section XIX (Dispute Resolution). h. Balance of Disbursement of OU2/OU3 Disbursement of Special 27 28 Account Funds. After EPA issues its written Certification of Completion of the LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 86 - 1 Work pursuant to this Consent Decree and after EPA completes all disbursements 2 to Settling Work Defendant in accordance with this Section, if any funds remain in 3 4 5 6 the OU2/OU3 Disbursement Special Account, EPA may transfer such funds to the OU2/OU3 Locust Avenue Superfund Site Special Account or to the EPA Hazardous Substance Superfund. Any transfer of funds to the OU2/OU3 Locust 7 8 Avenue Superfund Site Special Account or to the EPA Hazardous Substance 9 Superfund shall not be subject to challenge by Settling Work Defendant pursuant 10 11 12 13 14 to the dispute resolution provisions of this Consent Decree or any other forum. 64. Payments by Settling Federal Agencies. a. Subject to and in the manner described in Paragraphs 56 – 58 15 and 63 – 66, the United States on behalf of Settling Federal Agencies shall directly 16 reimburse Settling Work Defendant for its share of Work Costs and Future 17 18 19 Response Costs. b. On or before February 15 of each calendar year beginning after 20 21 22 23 Settling Work Defendant’s Initial Funding has been depleted and the exhaustion of the funds in the OU2/OU3 Special Disbursement Account, Settling Work Defendant shall submit to DOD a Cost Summary and Certification, as described in 24 25 subparagraph c. covering Work Costs and Future Response Costs incurred and 26 paid by Settling Work Defendant from January 1 to December 31 of the preceding 27 28 calendar year. No accounting is required by this Paragraph if Settling Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 87 - 1 Defendant has not incurred Work Costs during the applicable annual period. 2 Settling Work Defendant shall not include in any submission costs included in a 3 4 5 6 previous Cost Summary and Certification if those costs have been previously sought or reimbursed. In no event shall Settling Work Defendant submit or be entitled to recover from the United States a Work Cost more than two (2) years 7 8 9 after it has been incurred by Settling Work Defendant. c. Each Work Cost Summary and Certification shall include a 10 11 complete and accurate written cost summary and certification of the Work Costs 12 and Future Response Costs incurred and paid by Settling Work Defendant for the 13 14 particular submission, excluding costs not eligible for disbursement or 15 reimbursement under Paragraph 63e. Each Work Cost Summary and Certification 16 pursuant to this subparagraph shall contain the following statement signed by an 17 18 officer of Settling Work Defendant or Settling Work Defendant’s Project 19 Coordinator who shall be an employee of Settling Work Defendant or UTC: 20 21 22 23 24 25 26 27 28 I certify that, to the best of my knowledge, after thorough investigation and review of Goodrich Corporation’s documentation of Work Costs [and Future Response Costs] incurred and paid for work performed pursuant to a certain Consent Decree entered by the District Court in Central District of California Case No. 09-01864 PSG (SSx) as Docket No. [____] on [DATE] during the period covered by this certification, the information contained in or accompanying this submission is true, accurate, and complete. I certify that Goodrich Corporation has not sought or recovered any claimed Work Costs or Future Response Costs from the United States under any Federal Contract. I further certify that Goodrich Corporation has not recovered any claimed Work Costs in excess of sixty-eight million seven hundred fifty thousand dollars ($68,750,000) relating to the RABSP Site or Future LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 88 - 1 2 Response Costs from any other source, including its insurers. I am aware that there are significant penalties for knowingly submitting false information, including the possibility of fine and imprisonment. 3 4 Included with each statement and certification shall be copies of invoices, a 5 description of the Work underlying the invoices, and other documentation 6 7 reasonably requested by the United States sufficient to support the claimed Work 8 Costs and Future Response Costs. Settling Work Defendant shall notify the United 9 10 11 12 States before making any claims to other parties for reimbursement of any Work Costs or Future Response Costs and Settling Work Defendant agrees not to seek reimbursement from either Settling Federal Agencies or from the EPA 13 14 Disbursement Special Account for any Work Costs or Future Response Costs that 15 it has received from any other party. 16 17 18 19 20 d. Within ninety (90) Days of the United States’ receipt of each Cost Summary and Certification, the United States on behalf of Settling Federal Agencies shall reimburse Settling Work Defendant fifty percent (50%) of the 21 necessary NCP compliant Work Costs and Future Response Costs, as set forth in 22 Paragraphs 56 – 58 and 63 – 66 contained in the statement that are properly 23 24 included and supported, except as otherwise provided in Paragraph 63e. of this 25 Consent Decree. Payment shall be made pursuant to instructions given by Settling 26 27 28 Work Defendant, provided these instructions comply with federal and any other applicable law. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 89 - 1 2 e. If Settling Work Defendant fails to support Work Costs and Future Response Costs with documentation required in subparagraphs b. and c., or 3 4 5 6 otherwise fails to demonstrate that a cost is properly reimbursable under this Agreement, the United States may object, in writing, within sixty (60) Days of receipt of the statement, and said objection shall be sent to Settling Work 7 8 Defendant’s designated counsel. Any such objection shall identify the contested 9 cost item and the basis for objection. In the event of an objection, the United 10 11 States shall, within the ninety (90) Day period, reimburse its share of any 12 uncontested Work Costs. After the transmission of any objection, the United 13 14 15 16 States shall initiate the dispute resolution procedures provided in this Paragraph. f. If any payment required to be made by this Paragraph is not made in accordance with the provisions of this Section, Interest on the unpaid 17 18 19 balance shall accrue from the date on which the payment was due. g. After exhaustion of the funds in the OU2/OU3 Disbursement 20 21 22 23 Special Account pursuant to Paragraphs 62 and 63, Settling Work Defendant and the United States on behalf of Settling Federal Agencies shall pay fifty percent (50%) each of the remaining Work Costs until the Work is completed or this 24 25 Consent Decree is terminated. Settling Work Defendant shall pursuant to this 26 Paragraph submit its Work Costs to the counsel representing the United States 27 28 Department of Defense designated in the Notices and Submissions Section for fifty LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 90 - 1 percent (50%) reimbursement. If the United States determines for any reason that 2 a portion of Work Costs for which reimbursement was made to Settling Work 3 4 5 6 Defendant pursuant to this Consent Decree was not properly subject to reimbursement, the United States may demand credit, with Interest, of all payments made previously with regard to those costs, which credit shall be applied 7 8 to Settling Work Defendant’s subsequent demands for Work Costs or through a 9 direct payment if Settling Work Defendant makes no other demands for 10 11 reimbursement to which a credit may be applied. Within sixty (60) Days of 12 receiving such a demand, Settling Work Defendant shall credit such prior 13 14 payments to the United States, with Interest from the date of the prior payments to 15 the date of return of those payments, unless Settling Work Defendant provides 16 written notice contesting that demand for credit within said sixty (60) Day period, 17 18 in which case the dispute resolution provisions of this Paragraph shall take effect. 19 The United States shall not demand credit for any payment of Work Costs, more 20 21 22 23 than two (2) years after it has made that payment, except in cases of fraud or bad faith, or where the United States could not have reasonably determined, from the information submitted by Settling Work Defendant before the payment, that a 24 25 claimed cost was not a valid Work Cost or had been reimbursed from another 26 source. 27 28 h. A determination by the United States not to object to a Work LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 91 - 1 Cost shall not constitute an admission, agreement, understanding, or other 2 indication by the United States that any such cost is within the scope of this 3 4 5 6 Consent Decree, that such cost was necessary or incurred consistent with the NCP, or is otherwise reimbursable under this Consent Decree or under any statute, regulation, or other provision of law or equity. 7 8 9 i. Dispute Resolution for Settling Work Defendant’s Work Costs. In lieu of the dispute resolution provisions Section XIX (Dispute Resolution), any 10 11 dispute with respect to the United States’ obligation, on behalf of Settling Federal 12 Agencies pursuant to Paragraphs 56 – 58 and 63 – 66, to reimburse Work Costs 13 14 under this Consent Decree shall in the first instance be the subject of informal 15 negotiations between the United States and Settling Work Defendant. The period 16 for informal negotiations shall last sixty (60) Days from the date the United States 17 18 transmits its objection pursuant to this Paragraph, or Settling Work Defendant 19 transmits an intention to contest a demand for credit, unless this period is extended 20 21 22 23 by written agreement of the United States and Settling Work Defendant. If informal negotiations are unsuccessful, the United States and Settling Work Defendant may notify the Court of the dispute and the need for a resolution, either 24 25 by the Court or through the use of Court-annexed alternative dispute resolution 26 procedures, unless the United States and Settling Work Defendant agree in writing, 27 28 to an alternative method of dispute resolution. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 92 - j. 1 2 In the event informal negotiations are unsuccessful, neither the United States nor Settling Work Defendant shall submit or rely on any evidence, in 3 4 5 6 any form, to resolve the disputed Work Costs, that was not disclosed to the other Party prior to the expiration of the informal negotiation period, except upon leave of Court or as the United States and Settling Work Defendant otherwise agree. 7 8 However, nothing in this Paragraph shall preclude a Party from submitting or 9 relying on: (1) expert testimony; (2) factual evidence not in existence at the time 10 11 of the informal negotiation period; (3) factual evidence not known to the Party at 12 the time of the informal negotiation period; or (4) evidence that is, or was at the 13 14 15 16 time of the informal negotiation period, exclusively within the possession of the other Party. k. If a reimbursement is determined to be due, the United States 17 18 shall pay the sum determined to be due within sixty (60) Days of the resolution of 19 the dispute (with accrued Interest pursuant to this Consent Decree). If a credit is 20 21 22 23 determined to be due to the United States pursuant to this Paragraph, such credit shall be applied to Settling Work Defendant’s subsequent claims for reimbursement. In the event Settling Work Defendant makes no subsequent 24 25 claims for reimbursement exceeding the credit, then it shall refund any remaining 26 credit to the United States with Interest accruing from the date the credit was 27 28 determined due. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 93 - 1 2 65. The Parties and UTC recognize and acknowledge that the payment obligations of the United States on behalf of Settling Federal Agencies under this 3 4 5 6 Consent Decree can only be paid from appropriated funds legally available for such purpose. Nothing in this Consent Decree shall be interpreted or construed as a commitment or requirement that the United States on behalf of any Settling 7 8 Federal Agency obligate or pay funds in contravention of the Anti-Deficiency Act, 9 31 U.S.C. § 1341, or any other applicable provision of law. 10 11 12 13 14 15 16 66. Payment and Disbursement Instructions. Except as otherwise provided herein, Future Settling Parties shall deposit their respective payments into the Locust Avenue Superfund Site Special Account and the OU2/OU3 Disbursement Special Account as described in Paragraph 56. 67. Instructions for Future Response Costs Payments and Stipulated 17 18 Penalties. All payments required elsewhere in this Consent Decree to be made in 19 accordance with this Paragraph shall be made in accordance with instructions to be 20 21 22 23 provided by the United States following the date of lodging of Consent Decree, and shall be identified as “future response costs payments” or “stipulated penalties” as applicable. All payments to be made under this Paragraph shall 24 25 reference the EPA Site/Spill ID Number 09JW and DOJ Case Number 90-11-2- 26 09952. At the time of any payment required to be made in accordance with 27 28 Section XVI (Establishment of Accounts and Payments), Settling Work Defendant LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 94 - 1 shall send notice that payment has been made to the United States, and to EPA, in 2 accordance with Section XXV (Notices and Submissions), and to the EPA 3 4 5 6 Cincinnati Finance Office by email at acctsreceivable.cinwd@epa.gov, or by mail at 26 Martin Luther King Drive, Cincinnati, Ohio 45268. Such notice shall also reference the EPA Site/Spill ID Number 09JW and DOJ Case Number 90-11-2- 7 8 09952. Settling Work Defendant shall pay to EPA Future Response Costs not 9 inconsistent with the NCP. On a periodic basis, EPA will send Settling Work 10 11 Defendant a bill requiring payment that includes an itemized cost summary, which 12 includes costs incurred by EPA. Settling Work Defendant shall make payments to 13 14 EPA within forty-five (45) Days of Settling Work Defendant’s receipt of each bill 15 requiring payment, unless the cost summary is contested pursuant to the dispute 16 resolution provisions of Section XIX (Dispute Resolution) of this Consent Decree. 17 18 19 68. Settling Work Defendant may contest any Future Response Costs if it determines that EPA has made a mathematical error or included a cost item that is 20 21 22 23 not within the definition of Future Response Costs, or if it believes EPA incurred excess costs as a direct result of an EPA action that was inconsistent with a specific provision or provisions of the NCP. Such objection shall be made in writing 24 25 within sixty (60) Days after receipt of the bill and must be sent to the United States 26 pursuant to Section XXV (Notices and Submissions). Any such objection shall 27 28 specifically identify the contested Future Response Costs and the basis for LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 95 - 1 objection. In the event of an objection, Settling Work Defendant shall pay all 2 uncontested Future Response Costs to the United States within thirty (30) Days 3 4 5 6 after Settling Work Defendant’s receipt of the bill requiring payment. Within sixty (60) Days of submitting such objection, Settling Work Defendant shall establish, in a duly chartered bank or trust company, an interest-bearing escrow account that is 7 8 insured by the Federal Deposit Insurance Corporation (“FDIC”), and remit to that 9 escrow account funds equivalent to the amount of the contested Future Response 10 11 Costs. Settling Work Defendant shall send to the United States, as provided in 12 Section XXV (Notices and Submissions), a copy of the transmittal letter and check 13 14 paying the uncontested Future Response Costs, and a copy of the correspondence 15 that establishes and funds the escrow account, including, but not limited to, 16 information containing the identity of the bank and bank account under which the 17 18 escrow account is established as well as a bank statement showing the initial 19 balance of the escrow account. Within sixty (60) Days, with establishment of the 20 21 22 23 escrow account, Settling Work Defendant shall initiate the dispute resolution procedures in Section XIX (Dispute Resolution). If the United States prevails in the dispute, Settling Work Defendant shall pay the sums due (with accrued 24 25 Interest) to the United States within thirty (30) Days after the resolution of the 26 dispute. If Settling Work Defendant prevails concerning any aspect of the 27 28 contested costs, Settling Work Defendant shall pay that portion of the costs (plus LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 96 - 1 associated accrued Interest) for which it does not prevail to the United States 2 within thirty (30) Days after the resolution of the dispute. Settling Work 3 4 5 6 Defendant shall be disbursed any balance of the escrow account. All payments to the United States under this Paragraph shall be made in accordance with Paragraph 67 (Instructions for Future Response Cost Payments and Stipulated Penalties). The 7 8 dispute resolution procedures set forth in this Paragraph, in conjunction with the 9 procedures set forth in Section XIX (Dispute Resolution), shall be the exclusive 10 11 mechanisms for resolving disputes regarding Settling Work Defendant’s obligation 12 to reimburse the United States for its Future Response Costs. 13 14 69. Interest. In the event that any payment required under this Section is 15 not made by the date required, Settling Work Defendant shall pay Interest on the 16 unpaid balance. The Interest to be paid under this Paragraph shall begin to accrue 17 18 on the date the payment is required. The Interest shall accrue through the date of 19 Settling Work Defendant’s payment. Payments of Interest made under this 20 21 22 23 Paragraph shall be in addition to such other remedies or sanctions available to Plaintiffs by virtue of Settling Work Defendant’s failure to make timely payments under Section XVI (Establishment of Accounts and Payments) including, but not 24 25 limited to, payment of stipulated penalties pursuant to Section XX (Stipulated 26 Penalties). 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 97 - XVII. 1 INDEMNIFICATION AND INSURANCE 2 3 4 5 6 7 8 70. Settling Work Defendant’s Indemnification of the United States. The United States does not assume any liability by entering into this Consent Decree or by virtue of any designation of Settling Work Defendant as EPA’s authorized representative under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e). Settling Work Defendant shall indemnify, save and hold harmless the United States and its 9 10 officials, agents, employees, contractors, subcontractors, or representatives for or 11 from any and all claims or causes of action arising from, or on account of, 12 13 14 15 negligent or other wrongful acts or omissions of Settling Work Defendant, its officers, directors, employees, agents, contractors, subcontractors, and any persons acting on its behalf or under its control, in carrying out activities required by this 16 17 Consent Decree, including, but not limited to, any claims arising from any 18 designation of Settling Work Defendant as EPA’s authorized representative under 19 20 Section 104(e) of CERCLA. Further, Settling Work Defendant agrees to pay the 21 United States all costs it incurs including, but not limited to, attorneys’ fees and 22 23 other expenses of litigation and settlement arising from, or on account of, claims 24 made against the United States based on negligent or other wrongful acts or 25 omissions of Settling Work Defendant, its officers, directors, employees, agents, 26 27 contractors, subcontractors, and any persons acting on its behalf or under its 28 control, in carrying out activities pursuant to this Consent Decree. The United LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 98 - 1 States shall not be held out as a party to any contract entered into by or on behalf 2 of Settling Work Defendant in carrying out activities pursuant to this Consent 3 4 5 Decree. Neither Settling Work Defendant nor any such contractor shall be considered an agent of the United States. 6 a. The United States shall give Settling Work Defendant notice of 7 8 any claim for which the United States plans to seek indemnification pursuant to 9 this Paragraph and shall consult with Settling Work Defendant prior to settling 10 11 such claim. 12 13 14 15 16 b. Nothing in this Paragraph shall alter any obligations of Settling Federal Agencies set forth elsewhere in this Consent Decree. 71. Settling Work Defendant covenants not to sue and agrees not to assert any claims or causes of action against the United States for damages or 17 18 reimbursement or for set-off of any payments made or to be made to the United 19 States, arising from or on account of any contract, agreement, or arrangement 20 21 22 23 between Settling Work Defendant and any person for performance of Work on or relating to the Locust Avenue Superfund Site, including, but not limited to, claims on account of construction delays. In addition, Settling Work Defendant shall 24 25 indemnify and hold harmless the United States with respect to any and all claims 26 for damages or reimbursement arising from or on account of any contract, 27 28 agreement, or arrangement between Settling Work Defendant and any person for LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 99 - 1 performance of Work on or relating to the Locust Avenue Superfund Site, 2 including, but not limited to, claims on account of construction delays. 3 4 5 6 72. No later than fifteen (15) Days before commencing any on-Site Work, Settling Work Defendant or Settling Work Defendant’s Supervising Contractor shall secure, and shall maintain, until the first anniversary of EPA’s Certification 7 8 of Completion of the Work pursuant to Paragraph 52 of Section XIV (Certification 9 of Completion of the Work), commercial general liability insurance with limits of 10 11 two million dollars ($2,000,000), for any one occurrence, and automobile liability 12 insurance with limits of one million dollars ($1,000,000), combined single limit, 13 14 naming the United States as an additional insured with respect to all liability 15 arising out of the activities performed by or on behalf of Settling Work Defendant 16 pursuant to this Consent Decree. In addition, for the duration of this Consent 17 18 Decree, Settling Work Defendant shall satisfy, or shall ensure that its contractors 19 or subcontractors satisfy, all applicable laws and regulations regarding the 20 21 22 23 provision of worker’s compensation insurance for all persons performing the Work on behalf of Settling Work Defendant in furtherance of this Consent Decree. Prior to commencement of the Work under this Consent Decree, Settling Work 24 25 Defendant shall provide to EPA certificates of such insurance and a copy of each 26 insurance policy. Settling Work Defendant shall resubmit such certificates and 27 28 copies of policies each year on the anniversary of the Effective Date, beginning LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 100 - 1 after the OU2/OU3 ROD is signed. If Settling Work Defendant demonstrates by 2 evidence satisfactory to EPA that any contractor or subcontractor maintains 3 4 5 6 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 Work Defendant needs to provide only that portion of the insurance 7 8 described above that is not maintained by the contractor or subcontractor. 9 XVIII. 10 FORCE MAJEURE 11 12 13 14 15 16 17 73. “Force majeure,” for purposes of this Consent Decree, is defined as any event arising from causes beyond the control of Settling Work Defendant, of any entity controlled by Settling Work Defendant, or of Settling Work Defendant’s contractors that delays or prevents the performance of any obligation under this Consent Decree despite Settling Work Defendant’s best efforts to fulfill the 18 19 obligation. The requirement that Settling Work Defendant exercises “best efforts 20 to fulfill the obligation” includes using best efforts to anticipate any potential force 21 22 23 24 25 majeure and best efforts to address the effects of any potential force majeure (1) as it is occurring and (2) following the potential force majeure such that the delay and any adverse effects of the delay are minimized to the greatest extent possible. 26 “Force majeure” does not include financial inability to complete the Work or a 27 failure to achieve the Performance Standards. 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 101 - 1 2 74. If any event occurs or has occurred that may delay the performance of any obligation under this Consent Decree for which Settling Work Defendant 3 4 5 6 intends or may intend to assert a claim of force majeure, Settling Work Defendant shall notify orally EPA’s Project Coordinator or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of EPA’s designated 7 8 representatives are unavailable, the Director of the Superfund Division, EPA 9 Region 9, within forty-eight (48) hours of when Settling Work Defendant first 10 11 knew that the event might cause a delay. Within five (5) Days thereafter, Settling 12 Work Defendant shall provide in writing to EPA, with a copy to Rialto, an 13 14 explanation and description of the reasons for the delay; the anticipated duration of 15 the delay; all actions taken or to be taken to prevent or minimize the delay; a 16 schedule for implementation of any measures to be taken to prevent or mitigate the 17 18 delay or the effect of the delay; Settling Work Defendant’s rationale for attributing 19 such delay to a force majeure; and a statement as to whether, in the opinion of 20 21 22 23 Settling Work Defendant, such event may cause or contribute to an endangerment to public health or welfare, or the environment. Settling Work Defendant shall include with any notice all available documentation supporting its claim that the 24 25 delay was attributable to a force majeure. Settling Work Defendant shall be 26 deemed to know of any circumstance of which Settling Work Defendant, any 27 28 entity controlled by Settling Work Defendant, or Settling Work Defendant’s LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 102 - 1 contractors knew or should have known. Failure to comply with the above 2 requirements regarding an event shall preclude Settling Work Defendant from 3 4 5 6 asserting any claim of force majeure regarding that event, provided, however, that if EPA, despite the late notice, is able to assess to its satisfaction whether the event is a force majeure under Paragraph 73 and whether Settling Work Defendant has 7 8 exercised its best effort under Paragraph 73, EPA may, in its unreviewable 9 discretion, excuse in writing Settling Work Defendant’s failure to submit timely 10 11 12 13 14 notices under this Paragraph. 75. If EPA agrees that the delay or anticipated delay is attributable to a force majeure, the time for performance of the obligations under this Consent 15 Decree that are affected by the force majeure will be extended by EPA for such 16 time as is necessary to complete those obligations. An extension of the time for 17 18 performance of the obligations affected by the force majeure shall not, of itself, 19 extend the time for performance of any other obligation. If EPA does not agree 20 21 22 23 that the delay or anticipated delay has been or will be caused by a force majeure, EPA will notify Settling Work Defendant in writing of its decision, and provide a copy to Rialto. If EPA agrees that the delay is attributable to a force majeure, EPA 24 25 will notify Settling Work Defendant in writing of the length of the extension, if 26 any, for performance of the obligations affected by the force majeure, and provide 27 28 a copy to Rialto. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 103 - 1 2 76. If Settling Work Defendant elects to invoke the dispute resolution procedures set forth in Section XIX (Dispute Resolution), it shall do so no later 3 4 5 6 than fifteen (15) Days after receipt of EPA’s notice. In any such proceeding, Settling Work Defendant shall have the burden of demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or will 7 8 be caused by a force majeure, that the duration of the delay or the extension sought 9 was or will be warranted under the circumstances, that best efforts were exercised 10 11 to avoid and mitigate the effects of the delay, and that Settling Work Defendant 12 complied with the requirements of Paragraphs 73 and 74. If Settling Work 13 14 Defendant carries this burden, the delay at issue shall be deemed not to be a 15 violation by Settling Work Defendant of the affected obligation of this Consent 16 Decree identified to EPA and the Court. 17 18 XIX. DISPUTE RESOLUTION 19 20 77. Unless otherwise expressly provided for in this Consent Decree, the 21 22 23 24 25 dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes regarding this Consent Decree. However, the procedures set forth in this Section shall not apply to actions by the United States to enforce obligations 26 of Settling Work Defendant that have not been disputed in accordance with this 27 Section. 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 104 - 1 2 78. Any dispute regarding this Consent Decree shall in the first instance be the subject of informal negotiations between the parties to the dispute. The 3 4 5 6 period for informal negotiations shall not exceed twenty (20) Days from the time the dispute arises, unless it is modified by written agreement of the parties to the dispute. The dispute shall be considered to have arisen when one party sends the 7 8 9 other parties a written Notice of Dispute. 79. Statement of Position. 10 11 12 13 14 a. In the event that the parties cannot resolve a dispute by informal negotiations under the preceding Paragraph, then the position advanced by EPA shall be considered binding unless, within thirty (30) Days after EPA issues written 15 notice to Settling Work Defendant that the informal negotiations have terminated, 16 Settling Work Defendant invokes the formal dispute resolution procedures of this 17 18 Section by serving on the United States, with a copy of Rialto, a written Statement 19 of Position on the matter in dispute, including, but not limited to, any factual data, 20 21 22 23 analysis or opinion supporting that position and any supporting documentation relied upon by Settling Work Defendant. The Statement of Position shall specify Settling Work Defendant’s position as to whether formal dispute resolution should 24 25 26 proceed under Paragraph 80 or 81. b. Within forty (40) Days after receipt of Settling Work 27 28 Defendant’s Statement of Position, EPA will serve on Settling Work Defendant, LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 105 - 1 with a copy to Rialto, its Statement of Position, including, but not limited to, any 2 factual data, analysis, or opinion supporting that position and all supporting 3 4 5 6 documentation relied upon by EPA. EPA’s Statement of Position shall include a statement as to whether formal dispute resolution should proceed under Paragraph 80 or 81. Within thirty (30) Days after receipt of EPA’s Statement of Position, 7 8 Settling Work Defendant may submit a reply, with a copy to Rialto. 9 c. If there is disagreement between EPA and Settling Work 10 11 Defendant as to whether dispute resolution should proceed under Paragraph 80 or 12 81, the parties to the dispute shall follow the procedures set forth in the paragraph 13 14 determined by EPA to be applicable. However, if Settling Work Defendant 15 ultimately appeals to the Court to resolve the dispute, the Court shall determine 16 which paragraph is applicable in accordance with the standards of applicability set 17 18 19 forth in Paragraphs 80 and 81. 80. Record Review. Formal dispute resolution for disputes pertaining to 20 21 22 23 the selection or adequacy of any response action and all other disputes that are accorded review on the administrative record under applicable principles of administrative law shall be conducted pursuant to the procedures set forth in this 24 25 Paragraph. For purposes of this Paragraph, the adequacy of any response action 26 includes, without limitation, the adequacy or appropriateness of plans, procedures 27 28 to implement plans, or any other items requiring approval by EPA under this LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 106 - 1 Consent Decree, and the adequacy of the performance of response actions taken 2 pursuant to this Consent Decree. Nothing in this Consent Decree shall be 3 4 5 6 construed to: (a) allow any dispute by Settling Work Defendant regarding the validity of the OU2/OU3 ROD’s provisions, or (b) allow Settling Work Defendant to seek review of the selection or adequacy of any response action identified or 7 8 selected in the OU2/OU3 ROD; provided however, Settling Work Defendant 9 retains all rights pursuant to Section 117 of CERCLA, 41 U.S.C. § 9617 and 40 10 11 C.F.R. § 300.430(f)(3) relating to the Proposed Plan for the OU2/OU3 ROD, 12 including its conclusions and directions. 13 a. 14 An administrative record of the dispute shall be maintained by 15 EPA and shall contain all statements of position, including supporting 16 documentation, submitted pursuant to this Section. Where appropriate, EPA may 17 18 allow submission of supplemental statements of position by the parties to the 19 dispute. 20 21 22 23 b. The Director of the Superfund Division, EPA Region 9, will issue a final administrative decision resolving the dispute based on the administrative record described in this Paragraph. This decision shall be binding 24 25 upon Settling Work Defendant, subject only to the right to seek judicial review 26 pursuant to subparagraphs c. and d. 27 28 c. Any administrative decision made by EPA pursuant to LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 107 - 1 subparagraph b. shall be reviewable by this Court, provided that a motion for 2 judicial review of the decision is filed by Settling Work Defendant with the Court 3 4 5 6 and served on all parties within thirty (30) Days of receipt of EPA’s decision. The motion shall be filed with this Court, which hereby retains jurisdiction to resolve all disputes as provided in this Consent Decree. The motion shall be referred in the 7 8 first instance to Judge Gutierrez. In the event, Judge Gutierrez is unavailable to 9 hear the motion, the motion shall be assigned by the Central District of California. 10 11 The motion shall include a description of the matter in dispute, the efforts made by 12 the parties to resolve it, the relief requested, and the schedule, if any, within which 13 14 the dispute must be resolved to ensure orderly implementation of this Consent 15 Decree. Within thirty (30) Days of the filing of such motion, the United States 16 may file a response to Settling Work Defendant’s motion. 17 d. 18 19 In proceedings on any dispute governed by this Paragraph, Settling Work Defendant shall have the burden of demonstrating that the decision 20 21 22 23 of the Superfund Division Director is arbitrary and capricious or otherwise not in accordance with law. Judicial review of EPA’s decision shall be on the administrative record compiled pursuant to this Paragraph. 24 25 26 81. Unless otherwise provided in this Consent Decree, formal dispute resolution for disputes that neither pertain to the selection or adequacy of any 27 28 response action nor are otherwise accorded review on the administrative record LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 108 - 1 under applicable principles of administrative law shall be governed by this 2 Paragraph. 3 4 5 6 a. Following receipt of Settling Work Defendant’s Statement of Position submitted pursuant to Paragraph 79, the Director of the Superfund Division, EPA Region 9, will issue a final decision resolving the dispute. The 7 8 Superfund Division Director’s decision shall be binding on Settling Work 9 Defendant unless, within thirty (30) Days of receipt of the decision, Settling Work 10 11 Defendant files with the Court and serves on the parties a motion for judicial 12 review of the decision setting forth the matter in dispute, the efforts made by the 13 14 parties to resolve it, the relief requested, and the schedule, if any, within which the 15 dispute must be resolved to ensure orderly implementation of the Consent Decree. 16 The United States may file a response to Settling Work Defendant’s motion. The 17 18 motion shall be filed with this Court, which hereby retains jurisdiction to resolve 19 all disputes as provided in this Consent Decree. The motion shall be referred in the 20 21 22 23 first instance to Judge Gutierrez. In the event, Judge Gutierrez is unavailable to hear the motion, the motion shall be assigned by the Central District of California. b. Notwithstanding Paragraph 80 (CERCLA Section 113(j) 24 25 Record Review of OU2/OU3 ROD and Work) of Section I (Background), judicial 26 review of any dispute governed by this Paragraph shall be governed by applicable 27 28 principles of law. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 109 - 1 2 82. The invocation of formal dispute resolution procedures under this Section shall not extend, postpone, or affect in any way any obligation of Settling 3 4 5 6 Work Defendant under this Consent Decree, not directly in dispute, unless EPA or the Court agrees otherwise. Stipulated penalties with respect to the disputed matter shall continue to accrue but payment shall be stayed pending resolution of the 7 8 dispute as provided in this Paragraph. Notwithstanding the stay of payment, 9 stipulated penalties shall accrue from the first day of noncompliance with any 10 11 applicable provision of this Consent Decree. In the event that Settling Work 12 Defendant does not prevail on the disputed issue, stipulated penalties shall be 13 14 assessed and paid as provided in Section XX (Stipulated Penalties). In the event 15 Settling Work Defendant prevails on any disputed claim, Settling Work Defendant 16 shall not owe any stipulated penalty for such claim. 17 18 XX. STIPULATED PENALTIES 19 20 83. Settling Work Defendant shall be liable for stipulated penalties in the 21 22 23 24 25 amounts set forth in Paragraphs 84 – 87 to the United States for failure to comply with the requirements of this Consent Decree specified below, unless excused under Section XVIII (Force Majeure). “Compliance” by a Settling Work 26 Defendant shall include completion of all payments and activities required of that 27 Settling Work Defendant under this Consent Decree, or any plan, report, or other 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 110 - 1 deliverable approved under this Consent Decree, in accordance with all applicable 2 requirements of law, this Consent Decree, the SOW, and any plans, reports, or 3 4 5 6 other deliverables approved under this Consent Decree and within the specified time schedules established by and approved under this Consent Decree. 84. Stipulated Penalty Amounts - Work (Including Specifically 7 8 Enumerated Deliverables). 9 a. The following stipulated penalties shall accrue per violation per 10 11 12 13 Day for any noncompliance as described in Paragraph 83: Penalty Per Violation Per Day Period of Noncompliance $2,500 1st through 14th Day 15 $5,000 15th through 30th Day 16 $10,000 31st Day and beyond 14 17 18 b. 19 Performance of the Work and Compliance Milestones. (1) Failure to perform the Work as set forth in any and all 20 21 22 23 EPA approved plans and/or to submit the following deliverables in a timely and adequate fashion: (a) Remedial Design Work Plan (b) Sampling & Analysis Plan and Health and Safety 24 25 26 Plan for Remedial Design Investigation if required by RD Work Plan 27 28 (c) Remedial Design Investigation Report if required LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 111 - 1 by RD Work Plan 2 (d) Preliminary Design (e) Prefinal Design (f) Final Design (g) Construction Quality Assurance Plan; (h) Operation and Maintenance (“O&M”) Plan if 3 4 5 6 7 8 9 required by RD Work Plan 10 (i) 12 Sampling & Analysis Plan and Health and Safety Work Plan 13 14 15 Compliance Monitoring Plan if required by RD (j) 11 Plan to support O&M and Compliance Monitoring 16 (k) Construction Health and Safety Plan 18 (l) Remedial Action Work Plan 19 (m) Remedial Action Report (n) Submittal of Analytical Data (o) Submittal of Well Construction Information if 17 20 21 22 23 required by RD Work Plan 24 (2) 25 26 Failure to comply with the following Work schedule milestones: 27 28 (a) Remedial Design Investigation if required by RD LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 112 - 1 Work Plan 2 (b) Providing or arranging for access as set forth in (c) Start of RA Implementation (d) Pre-Certification Inspections (e) Completion of all outstanding items identified in 3 4 Section IX (Access) 5 6 7 8 9 the Pre-Certification Inspections 10 (f) 11 12 13 14 85. Start of Operation and Maintenance Stipulated Penalty Amounts - Plans, Reports, and Other Deliverables Not Specified in Paragraph 84. The following stipulated penalties shall accrue per 15 violation per Day for failure to comply with all other requirements of this Consent 16 Decree not specifically set forth in Paragraph 84: 17 18 Penalty Per Violation Per Day 19 Period of Noncompliance $1,250 1st through 14th Day $2,500 15th through 30th Day $7,500 31st Day and beyond 20 21 22 23 86. Stipulated Penalty Amounts - Late Payments. If Settling Work 24 25 Defendant makes a payment required by this Consent Decree after it is due, 26 Settling Work Defendant shall be in violation of this Consent Decree and shall pay 27 28 to the United States, as a stipulated penalty, as follows: LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 113 - 1 Penalty Per Violation Per Day Period of Noncompliance 2 $1,250 1st through 14th Day 3 $2,500 15th through 30th Day $7,500 31st Day and beyond 4 5 6 7 8 87. In the event that EPA assumes performance of a portion or all of the Work pursuant to Paragraph 100 (Work Takeover), Settling Work Defendant shall 9 be liable for a stipulated penalty in the amount of the lesser of two million dollars 10 ($2,000,000) or three (3) times the Response Costs incurred in performance of all 11 12 such Work. Stipulated penalties under this Paragraph are in addition to the 13 remedies available under Paragraph 49 (Funding for Work Takeover) and 14 15 16 17 Paragraph 100 (Work Takeover). 88. All penalties shall begin to accrue on the day after the complete performance is due or the day a violation occurs, and shall continue to accrue 18 19 through the final day of the correction of the noncompliance or completion of the 20 activity. However, stipulated penalties shall not accrue: (a) with respect to a 21 22 23 24 25 deficient submission under Section XI (EPA Approval of Plans, Reports, and Other Deliverables), during the period, if any, beginning on the thirty-first (31st) Day after EPA’s receipt of such submission until the date that EPA notifies Settling 26 Work Defendant of any deficiency; (b) with respect to a decision by the Director of 27 the Superfund Division, EPA Region 9, under Paragraph 80b. or 81a. of Section 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 114 - 1 XIX (Dispute Resolution), during the period, if any, beginning on the twenty-first 2 (21st) Day after the date that Settling Work Defendant’s reply to EPA’s Statement 3 4 5 6 of Position is received until the date that the Director issues a final decision regarding such dispute; or (c) with respect to judicial review by this Court of any dispute under Section XIX (Dispute Resolution), during the period, if any, 7 8 beginning on the thirty-first (31st) Day after the Court’s receipt of the final 9 submission regarding the dispute until the date that the Court issues a final decision 10 11 regarding such dispute. Nothing in this Consent Decree shall prevent the 12 simultaneous accrual of separate penalties for separate violations of this Consent 13 14 15 16 Decree. 89. Following EPA’s determination that Settling Work Defendant has failed to comply with a requirement of this Consent Decree, EPA may give 17 18 Settling Work Defendant written notification, and provide a copy to Rialto, of the 19 same and describe the noncompliance. EPA may send Settling Work Defendant a 20 21 22 23 written demand for the payment of the penalties, and provide a copy to Rialto. However, penalties shall accrue as provided in the preceding Paragraph regardless of whether EPA has notified Settling Defendants of a violation. All penalties 24 25 accruing under this Section shall be due and payable to the United States within 26 thirty (30) Days of Settling Work Defendant’s receipt from EPA of a demand for 27 28 payment of the penalties, unless Settling Work Defendant invokes the dispute LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 115 - 1 resolution procedures under Section XIX (Dispute Resolution) within the thirty 2 (30) Day period. All payments to the United States under this Section shall 3 4 5 6 indicate that the payment is for stipulated penalties, and shall be made in accordance with Paragraph 67 (Instructions for Future Response Cost Payments and Stipulated Penalties). 7 8 9 90. Penalties shall continue to accrue as provided in Paragraph 82 during any dispute resolution period, but need not be paid until the following: 10 a. 11 12 13 14 15 If the dispute is resolved by agreement of the parties or by a decision of EPA that is not appealed to this Court, accrued penalties so determined to be owed shall be paid to EPA within fifteen (15) Days of the agreement or the receipt of EPA’s decision or order; 16 b. If the dispute is appealed to this Court and the United States 17 18 prevails in whole or in part, Settling Work Defendant shall pay all accrued 19 penalties determined by the Court to be owed to EPA within sixty (60) Days of 20 21 22 23 receipt of the Court’s decision or order. 91. If Settling Work Defendant fails to pay stipulated penalties when due, Settling Work Defendant shall pay Interest on the unpaid stipulated penalties as 24 25 follows: (a) if Settling Work Defendant has timely invoked dispute resolution such 26 that the obligation to pay stipulated penalties has been stayed pending the outcome 27 28 of dispute resolution, Interest shall accrue from the date stipulated penalties are due LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 116 - 1 pursuant to this Paragraph until the date of payment; and (b) if Settling Work 2 Defendant fails to timely invoke dispute resolution, Interest shall accrue from the 3 4 5 6 date of demand under Paragraph 89 until the date of payment. If Settling Work Defendant fails to pay stipulated penalties and Interest when due, the United States may institute proceedings to collect the penalties and Interest against Settling Work 7 8 9 Defendant. 92. The payment of penalties and Interest, if any, shall not alter in any 10 11 way Settling Work Defendant’s obligation to complete the performance of the 12 Work required under this Consent Decree. Settling Work Defendant shall not 13 14 count payment of penalties and/or Interest toward Settling Defendant’s Initial 15 Funding described in Paragraph 57, nor may it seek reimbursement from the 16 OU2/OU3 Disbursement Special Account for any such penalties and/or Interest or 17 18 19 otherwise from the United States. 93. Nothing in this Consent Decree shall be construed as prohibiting, 20 21 22 23 altering, or in any way limiting the ability of the United States to seek any other remedies or sanctions available by virtue of Settling Work Defendant’s violation of this Consent Decree or of the statutes and regulations upon which it is based, 24 25 including, but not limited to, penalties pursuant to Section 122(l) of CERCLA, 42 26 U.S.C. § 9622(l), provided, however, that the United States shall not seek civil 27 28 penalties pursuant to Section 122(l) of CERCLA for any violation for which a LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 117 - 1 stipulated penalty is provided in this Consent Decree, except in the case of a willful 2 violation in this Consent Decree. Notwithstanding any other provision of this 3 4 5 Section, the United States may, in its unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to this Consent Decree. 6 XXI. COVENANTS, RELEASES, AND RESERVATIONS OF RIGHTS 7 8 9 10 11 A. COVENANTS AND RESERVATIONS OF RIGHTS BY THE UNITED STATES ON BEHALF OF EPA 94. Covenants for Settling Work Defendant and UTC by the United States 12 13 on Behalf of EPA. In consideration of the actions that will be performed and the 14 payments that will be made by Settling Work Defendant under this Consent 15 16 17 18 Decree, and except as specifically provided in Paragraphs 96 and 97 (United States Pre-Certification and Post-Certification Reservations) and Paragraph 99 (General Reservation of Rights) of this Section, the United States on behalf of EPA 19 20 covenants not to sue or to take administrative action against Settling Work 21 Defendant and UTC pursuant to Sections 106 and 107(a) of CERCLA and Section 22 23 24 25 26 7003 of RCRA for the Locust Avenue Superfund Site. With respect to future liability, these covenants shall take effect upon Certification of Completion of Remedial Action by EPA pursuant to Paragraph 51 of Section XIV (Certification 27 of Completion of the Work). These covenants are conditioned upon the 28 satisfactory performance by Settling Work Defendant and UTC of their obligations LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 118 - 1 under this Consent Decree. These covenants extend only to Settling Work 2 Defendant and UTC and do not extend to any other person except as specifically 3 4 5 6 set forth in this Consent Decree. 95. Covenant for Settling Federal Agencies by EPA. In consideration of the payments that may be made by the United States on behalf of Settling Federal 7 8 Agencies under this Consent Decree, and except as specifically provided in 9 Paragraphs 96b., 97b., and 99, EPA covenants not to take administrative action 10 11 against Settling Federal Agencies pursuant to Sections 106 and 107(a) of CERCLA 12 and Section 7003 of RCRA for the Locust Avenue Superfund Site. EPA’s 13 14 covenant is conditioned upon the satisfactory performance of the payment 15 obligations by the United States on behalf of Settling Federal Agencies under this 16 Consent Decree. EPA’s covenant extends only to Settling Federal Agencies and 17 18 does not extend to any other person except as specifically set forth in this Consent 19 Decree. This covenant is effective upon the execution of this agreement by the 20 21 22 23 United States and shall remain effective if the Court approves this Consent Decree. 96. United States’ Pre-Certification Reservations. a. As to Settling Work Defendant and UTC: Notwithstanding any 24 25 other provision of this Consent Decree, the United States, on behalf of EPA, 26 reserves, and this Consent Decree is without prejudice to, the right to institute 27 28 proceedings in this action or in a new action, or to issue an administrative order, LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 119 - 1 seeking to compel Settling Work Defendant and UTC to perform further response 2 actions relating to OU2 and/or OU3 of the Locust Avenue Superfund Site and/or to 3 4 5 6 pay the United States for additional costs of response if: (1) prior to Certification of Completion of the Remedial Action: (a) conditions at OU2 and/or OU3 of the Locust Avenue Superfund Site, previously unknown to EPA, are discovered, or (b) 7 8 information, previously unknown to EPA, is received, in whole or in part; and (2) 9 EPA determines that these previously unknown conditions or information together 10 11 with any other relevant information indicates that the Remedial Action is not 12 protective of human health or the environment. Except as provided in Paragraph 13 14 130 (Res Judicata and Certain Other Defenses), nothing in this Consent Decree 15 precludes Settling Work Defendant or UTC from raising any defense, whether 16 asserted or not in the Consolidated Federal Action, to such new action or order. 17 18 19 b. As to Settling Federal Agencies: Notwithstanding any other provision of this Consent Decree, the United States, on behalf of EPA, reserves, 20 21 22 23 and this Consent Decree is without prejudice to, the right to institute proceedings in this action or in a new action, or to issue an administrative order, seeking to compel Settling Federal Agencies to perform further response actions relating to 24 25 OU2 and/or OU3 of the Locust Avenue Superfund Site and/or to pay the United 26 States for additional costs of response if: (1) prior to Certification of Completion 27 28 of the Remedial Action: (a) conditions at the OU2 and/or OU3 of the Locust LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 120 - 1 Avenue Superfund Site, previously unknown to EPA, are discovered, or (b) 2 information, previously unknown to EPA, is received, in whole or in part; and (2) 3 4 5 6 EPA determines that these previously unknown conditions or information together with any other relevant information indicates that the Remedial Action is not protective of human health or the environment. Except as provided in Paragraph 7 8 130 (Res Judicata and Certain Other Defenses), nothing in this Consent Decree 9 precludes Settling Federal Agencies from raising any defense, whether asserted or 10 11 12 13 14 not in the Consolidated Federal Action, to such new action or order. 97. United States’ Post-certification Reservations. a. As to Settling Work Defendant and UTC: Notwithstanding any 15 other provision of this Consent Decree, the United States, on behalf of EPA, 16 reserves, and this Consent Decree is without prejudice to, the right to institute 17 18 proceedings in this action or in a new action, or to issue an administrative order, 19 seeking to compel Settling Work Defendant and UTC to perform further response 20 21 22 23 actions relating to OU2 or OU3 of the Locust Avenue Superfund Site and/or to pay the United States for additional costs of response if, (1) subsequent to Certification of Completion of the Remedial Action: (a) conditions at OU2 or OU3 of the 24 25 Locust Avenue Superfund Site, previously unknown to EPA, are discovered, or (b) 26 information, previously unknown to EPA, is received, in whole or in part; and (2) 27 28 EPA determines that these previously unknown conditions or information together LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 121 - 1 with any other relevant information indicates that the Remedial Action is not 2 protective of human health or the environment. Except as provided in Paragraph 3 4 5 6 130 (Res Judicata and Certain Other Defenses), nothing in this Consent Decree precludes Settling Work Defendant or UTC from raising any defense, whether asserted or not in the Consolidated Federal Action, to such new action or order. 7 8 9 b. As to Settling Federal Agencies: Notwithstanding any other provision of this Consent Decree, the United States, on behalf of EPA, reserves, 10 11 and this Consent Decree is without prejudice to, the right to institute proceedings 12 in this action or in a new action, or to issue an administrative order, seeking to 13 14 compel Settling Federal Agencies to perform further response actions relating to 15 the OU2 and/or OU3 of the Locust Avenue Superfund Site and/or to pay the 16 United States for additional costs of response if, (1) subsequent to Certification of 17 18 Completion of the Remedial Action (a) conditions at the OU2 and/or OU3 of the 19 Locust Avenue Superfund Site, previously unknown to EPA, are discovered, or (b) 20 21 22 23 information, previously unknown to EPA, is received, in whole or in part, and (2) EPA determines that these previously unknown conditions or information together with any other relevant information indicates that the Remedial Action is not 24 25 protective of human health or the environment. Except as provided in Paragraph 26 130 (Res Judicata and Certain Other Defenses), nothing in this Consent Decree 27 28 precludes Settling Federal Agencies from raising any defense, whether asserted or LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 122 - 1 2 not in the Consolidated Federal Action, to such new action or order. 98. For purposes of Paragraph 96 (United States Pre-Certification 3 4 5 6 Reservations), the information and the conditions known to EPA will include only that information and those conditions known to EPA as of the date the OU2/OU3 ROD is signed and set forth in the OU2/OU3 ROD and the administrative record 7 8 supporting the ROD. For purposes of Paragraph 97, the information and the 9 conditions known to EPA shall include only that information and those conditions 10 11 known to EPA as of the date of Certification of Completion of the Remedial 12 Action and set forth in the OU2/OU3 ROD, the administrative record supporting 13 14 the OU2/OU3 ROD, the post-OU2/OU3 ROD administrative record, or in any 15 information received by EPA pursuant to the requirements of this Consent Decree 16 prior to the Certification of Completion of the Remedial Action. 17 18 19 99. General Reservations of Rights. The United States on behalf of EPA and the federal natural resource trustees reserve, and this Consent Decree is 20 21 22 23 without prejudice to, all rights against Settling Work Defendant, UTC, and Settling Federal Agencies with respect to all matters not expressly included within Plaintiff’s covenants in Paragraphs 94 and 95. Notwithstanding any other 24 25 provision of this Consent Decree, the United States on behalf of EPA and the 26 federal natural resource trustees reserve all rights against Settling Work Defendant, 27 28 UTC, and Settling Federal Agencies, with respect to: LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 123 - a. 1 2 claims based on a failure by Settling Work Defendant, UTC, or United States on behalf of Settling Federal Agencies to meet their respective 3 4 requirements under this Consent Decree; 5 6 b. liability arising from the party’s past, present, or future disposal, release, or threat of release of Waste Material outside of the Locust 7 8 Avenue Superfund Site; 9 c. liability based on the ownership or operation of any portion of 10 11 the Locust Avenue Superfund Site by Settling Work Defendant, UTC, or Settling 12 Federal Agencies when such ownership or operation as to Settling Work 13 14 Defendant, UTC, or a Settling Federal Agency respectively commences after 15 signature of this Consent Decree and does not arise solely out of performance of 16 the Work; 17 18 19 d. liability based on Settling Work Defendant’s, UTC’s, or Settling Federal Agencies’ respective transportation, treatment, storage, or 20 21 22 23 disposal, or the arrangement for the transportation, treatment, storage, or disposal of Waste Material at or in connection with the Locust Avenue Superfund Site, other than as provided in the OU2/OU3 ROD, the Work, or otherwise ordered by 24 25 26 EPA, after signature of this Consent Decree; e. liability for damages for injury to, destruction of, or loss of 27 28 natural resources, and for the costs of any natural resource damage assessments; LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 124 - 1 f. criminal liability; 2 g. liability for violations of federal or state law which occur 3 4 during or after implementation of the Work as to the violating party; 5 6 h. liability against Settling Work Defendant and UTC, prior to Certification of Completion of the Work, for additional response actions that EPA 7 8 determines are necessary to achieve and maintain Performance Standards or to 9 carry out and maintain the effectiveness of the remedy set forth in the OU2/OU3 10 11 ROD, but that cannot be required pursuant to Paragraph 15 (Modification of SOW 12 or Related Work Plans); 13 i. 14 liability against Settling Work Defendant and UTC for costs 15 incurred by the Agency for Toxic Substances and Disease Registry after the 16 Effective Date of the Consent Decree regarding the Locust Avenue Superfund Site; 17 18 and 19 j. its right to institute proceedings in a new action, to issue an 20 21 22 23 administrative order, to recover costs or perform work, or to otherwise take enforcement action against Settling Work Defendant and UTC for work and/or response costs that, taken together, exceed two million dollars ($2,000,000) for 24 25 26 OU3. 100. Work Takeover. 27 28 a. In the event EPA determines that Settling Work Defendant has: LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 125 - 1 (1) ceased implementation of any portion of the Work, or (2) are seriously or 2 repeatedly deficient or late in its performance of the Work, or (3) is implementing 3 4 5 6 the Work in a manner that may cause an endangerment to human health or the environment, EPA may issue a written notice (“Work Takeover Notice”) to Settling Work Defendant. Any Work Takeover Notice issued by EPA will specify 7 8 the grounds upon which such notice was issued and will provide Settling Work 9 Defendant a period of ten (10) Days within which to remedy the circumstances 10 11 12 13 14 giving rise to EPA’s issuance of such notice. b. If, after expiration of the ten (10) Day notice period specified in subparagraph a., Settling Work Defendant has not remedied to EPA’s satisfaction 15 the circumstances giving rise to EPA’s issuance of the relevant Work Takeover 16 Notice, EPA may at any time thereafter assume the performance of all or any 17 18 portion(s) of the Work as EPA deems necessary (“Work Takeover”). EPA will 19 notify Settling Work Defendant in writing (which writing may be electronic), and 20 21 22 23 provide a copy to Rialto, if EPA determines that implementation of a Work Takeover is warranted under this Paragraph. Funding of Work Takeover costs is addressed under Paragraph 49. 24 25 26 c. Settling Work Defendant may invoke the dispute resolution procedures set forth in Paragraph 80 (Record Review), to dispute EPA’s 27 28 implementation of a Work Takeover under Paragraph 100. However, LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 126 - 1 notwithstanding Settling Work Defendant’s invocation of such dispute resolution 2 procedures, and during the pendency of any such dispute, EPA may in its sole 3 4 5 6 discretion commence and continue a Work Takeover under Paragraph 100 until the earlier of: (1) the date that Settling Work Defendant remedies, to EPA’s satisfaction, the circumstances giving rise to EPA’s issuance of the relevant Work 7 8 Takeover Notice, or (2) the date that a final decision is rendered in accordance with 9 Paragraph 80 (Record Review) requiring EPA to terminate such Work Takeover. 10 101. Notwithstanding any other provision of this Consent Decree, the 11 12 13 14 15 16 17 18 United States on behalf of EPA retains all authority and reserves all rights to take any and all response actions authorized by law. B. COVENANTS, RELEASES, AND RESERVATIONS OF RIGHTS BY OTHER PARTIES 102. Covenants. Except as specifically provided in Paragraphs 104 and 116, Settling Work Defendant, UTC, and Settling Federal Agencies each release 19 20 and covenant not to sue or take administrative action against each other, pursuant 21 to Sections 107(a) or 113 of CERCLA, 42 U.S.C. §§ 9607(a) and 9613, Section 22 23 24 25 7002 of RCRA, 42 U.S.C. § 6972, any other federal or state statute or common law with respect to all claims, of any kind, known and unknown, against Settling Work Defendant, UTC, and/or Settling Federal Agencies in connection with the alleged 26 27 release or threatened release of any of the Basin Contaminants at, on, or under the 28 RABSP Site. These covenants and releases are also conditioned upon the LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 127 - 1 satisfactory performance by Settling Work Defendant, UTC, and United States on 2 behalf of Settling Federal Agencies of their obligations under this Consent Decree. 3 4 5 6 103. In releasing all unknown claims as set forth in Paragraph 102, subject to the reservations set forth in Paragraphs 104 and 116 of this Consent Decree, Settling Work Defendant, UTC, and the Settling Federal Agencies each expressly 7 8 9 10 11 waive the provisions of Section 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 12 13 14 15 104. Notwithstanding the waiver of Section 1542 of the California Civil Code set forth in Paragraph 103, Settling Work Defendant, UTC, and Settling 16 Federal Agencies each reserve, and this Consent Decree is without prejudice to, all 17 rights against Settling Work Defendant, UTC, and Settling Federal Agencies with 18 19 respect to: 20 a. liability of the breaching party for its failure to meet a 21 22 requirement of this Consent Decree; b. 23 24 liability based on the ownership or operation of any portion of the RABSP Site when such ownership or operation commences after the date of 25 26 lodging this Consent Decree and there is a new release on or related to such 27 property; 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 128 - 1 2 c. liability based on transportation, treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or disposal of a Waste 3 4 5 6 Material at or in connection with the RABSP Site, after the date of lodging this Consent Decree; d. liability arising from the past, present, or future disposal, 7 8 9 release or threat of release of a Waste Material outside of the RABSP Site; e. liability arising from the release, threat of release, or disposal of 10 11 a Waste Material either within or outside of the RABSP Site, where such release, 12 threat of release, or disposal occurs after the date of lodging this Consent Decree; 13 14 f. liability arising from past, present, or future releases or 15 threatened releases at the RABSP Site, where the Waste Material at issue is not a 16 Basin Contaminant; 17 18 g. liability related to bodily injury; and 19 h. claims for contribution whether based on federal or state 20 21 22 23 statutes or common law arising out of: (1) claims in City of Riverside v. Black & Decker (U.S.), Inc., et al., Case No. BC410878; (2) claims asserted by any person or entity that was not a party to the Consolidated Federal Action on August 24, 24 25 2012; or (3) claims for natural resource damages. 26 For purposes of subparagraphs c., d., and e., of this Paragraph, migration of 27 28 existing Waste Material is not a new release of Waste Material into soil, LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 129 - 1 groundwater, or atmosphere. 2 C. 3 COVENANTS, RELEASES, AND RESERVATIONS OF RIGHTS RELATING TO LGES 4 5 6 7 105. Covenants. Except as specifically provided in Paragraphs 107 and 108, Settling Work Defendant, UTC, and LGEs each release and covenant not to sue or take administrative action against each other, pursuant to Sections 107(a) or 8 9 10 113 of CERCLA, 42 U.S.C. §§ 9607(a) and 9613, Section 7002 of RCRA, 42 U.S.C. § 6972, or any other federal or state statute or common law with respect to 11 12 all claims, of any kind, known and unknown, against Settling Work Defendant, 13 UTC, and/or LGEs in connection with the alleged release or threatened release of 14 15 any of the Basin Contaminants at, on, or under the RABSP Site; including any 16 claims or liability in connection with, arising out of, or in any way related to claims 17 that were brought or could have been brought in: (1) City of Riverside v. Black & 18 19 Decker (U.S.), Inc., et al., Case No. BC410878; or (2) Mack P. Willis & Paul 20 Souza v. City of Rialto and Rialto City Council, California Court of Appeal, Fourth 21 22 23 24 Appellate District, Division Two, Case No. E051792 (appeal from San Bernardino Superior Court Case No. CIVSS 708001/708002). These covenants and releases are also conditioned upon the satisfactory performance by Settling Work 25 26 27 Defendant and UTC of their obligations under this Consent Decree. 106. In releasing all unknown claims as set forth in Paragraph 105, subject 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 130 - 1 to the reservations set forth in Paragraphs 107 and 108 of this Consent Decree, 2 Settling Work Defendant, UTC, and LGEs each expressly waive the provisions of 3 4 5 6 7 Section 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 8 9 10 107. Notwithstanding the waiver of Section 1542 of the California Civil Code set forth in Paragraph 106, LGEs reserve, and this Consent Decree is without 11 12 13 14 15 prejudice to, all rights against Settling Work Defendant and UTC with respect to: a. liability of the breaching party for its failure to meet a requirement of this Consent Decree; 16 b. criminal liability; 17 c. liability based on the ownership or operation of any portion of 18 19 the RABSP Site when such ownership or operation commences after the date of 20 lodging this Consent Decree and there is a new release of a Waste Material on or 21 22 23 24 related to such property; d. liability based on transportation, treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or disposal of a Waste 25 26 Material at or in connection with the RABSP Site, after the date of lodging this 27 Consent Decree; 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 131 - 1 2 e. liability arising from the past, present, or future disposal, release or threat of release of a Waste Material outside of the RABSP Site; 3 4 5 6 f. liability arising from the release, threat of release, or disposal of a Waste Material either within or outside of the RABSP Site, where such release, threat of release, or disposal occurs after the date of lodging this Consent Decree; 7 8 9 g. liability arising from past, present, or future releases or threatened releases at the RABSP Site, where the Waste Material at issue is not a 10 11 12 13 14 Basin Contaminant; h. liability related to bodily injury; i. claims for contribution whether based on federal or state 15 statutes or common law arising out of: (1) claims for natural resource damages; 16 (2) claims against an LGE asserted by any person or entity that was not a party to 17 18 the Consolidated Federal Action on August 24, 2012 (provided that the reservation 19 in this Paragraph 107(i)(2) does not apply to contribution claims arising out of 20 21 22 23 claims asserted by the City of Riverside itself in City of Riverside v. Black & Decker (U.S.), Inc., et al., Case No. BC410878, even though the City of Riverside was not a party to the Consolidated Federal Action as of that date); and 24 25 26 j. any rights of Rialto that arise from the exercise and enforcement of its municipal police power regulatory authority over persons, 27 28 entities, properties, and business transactions within the jurisdiction of the City of LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 132 - 1 Rialto. However, nothing in the foregoing sentence of this subparagraph j. 2 reserves Rialto’s rights under any federal, state, or local law to seek enforcement 3 4 5 6 against Settling Work Defendant and/or UTC to remediate soil or groundwater for existing Waste Material unless such right is reserved in other subparagraphs of this Paragraph. 7 k. 8 9 any rights of Colton that arise from the exercise and enforcement of its municipal police power regulatory authority over persons, 10 11 entities, properties, and business transactions within the jurisdiction of the City of 12 Colton. However, nothing in the foregoing sentence of this subparagraph k. 13 14 reserves Colton’s rights under any federal, state, or local law to seek enforcement 15 against Settling Work Defendant and/or UTC to remediate soil or groundwater for 16 existing Waste Material unless such right is reserved in other subparagraphs of this 17 18 Paragraph. 19 For purposes of subparagraphs c., d., and f. of this Paragraph, migration of existing 20 21 22 23 Waste Material is not a new release or disposal of Waste Material into soil, groundwater, or atmosphere. 108. Notwithstanding the waiver of Section 1542 of the California Civil 24 25 Code set forth in Paragraph 106, Settling Work Defendant and UTC each reserve, 26 and this Consent Decree is without prejudice to, all rights against LGEs with 27 28 respect to: LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 133 - 1 2 a. liability of the breaching party for its failure to meet a requirement of this Consent Decree; 3 4 5 6 b. liability based on the ownership or operation of any portion of the RABSP Site when such ownership or operation commences after the date of lodging this Consent Decree and there is a new release of a Waste Material on or 7 8 9 related to such property; c. liability based on transportation, treatment, storage, or disposal, 10 11 or arrangement for transportation, treatment, storage, or disposal of a Waste 12 Material at or in connection with the RABSP Site, after the date of lodging this 13 14 15 16 Consent Decree; d. liability arising from the past, present, or future disposal, release or threat of release of a Waste Material outside of the RABSP Site; 17 18 19 e. liability arising from the release, threat of release, or disposal of a Waste Material either within or outside of the RABSP Site, where such release, 20 21 22 23 threat of release, or disposal occurs after the date of lodging this Consent Decree; f. liability arising from past, present, or future releases or threatened releases at the RABSP Site, where the Waste Material at issue is not a 24 25 26 Basin Contaminant; g. liability related to bodily injury; and h. claims for contribution whether based on federal or state 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 134 - 1 statutes or common law arising out of: (1) claims for natural resource damages; or 2 (2) claims asserted against Settling Work Defendant or UTC by any person or 3 4 5 6 entity that was not a party to the Consolidated Federal Action on August 24, 2012 (provided that the reservation in this Paragraph 108(h)(2) does not apply to contribution claims arising out of claims asserted by the City of Riverside itself in 7 8 City of Riverside v. Black & Decker (U.S.), Inc., et al., Case No. BC410878, even 9 though the City of Riverside was not a party to the Consolidated Federal Action as 10 11 of that date). 12 For purposes of subparagraphs b., c., and e. of this Paragraph, migration of existing 13 14 15 16 Waste Material is not a new release or disposal of Waste Material into soil, groundwater, or atmosphere. 109. Existing Settling Parties and Future Settling Parties. Settling Work 17 18 Defendant and UTC agree that in the event that: (a) the United States, on behalf of 19 EPA, reaches or has reached settlement with any other party to the Consolidated 20 21 22 23 Federal Action who is not a signatory to this Consent Decree; and (b) as to Future Settling Parties, the United States, on behalf of EPA, gives notice in accordance with Section XXV (Notices and Submissions) to Settling Work Defendant and 24 25 UTC that such party has become a Future Settling Party; then upon Court approval 26 of the Existing Settling Parties’ settlements and/or any Future Settling Parties’ 27 28 settlement, Settling Work Defendant and UTC commit that they shall extend to any LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 135 - 1 such Existing Settling Parties and/or Future Settling Parties releases and covenants 2 not to sue and waiver to those set forth in Paragraphs 102 and 103, subject to the 3 4 5 6 reservations of rights in Paragraph 104, and in exchange for mutual releases of claims and appeals by those Existing Settling Parties and/or Future Settling Parties against Settling Work Defendant and UTC substantially identical to the releases, 7 8 covenants, not to sue, waiver, and reservations set forth in Paragraphs 102 – 104, 9 without further monetary consideration for such covenants and waiver. The 10 11 commitments of Settling Work Defendant and UTC to provide such covenants not 12 to sue, subject to the reservation of rights, in the foregoing sentence shall not take 13 14 effect as to any Existing Settling Parties and/or Future Settling Parties unless and 15 until the settlement with such Existing Settling Parties and/or Future Settling 16 Parties becomes a final judgment following any appeal. The United States has sole 17 18 discretion to determine whether a party is to be deemed a Future Settling Party for 19 purposes of this Paragraph. The Cities of Rialto and Colton as signatories to the 20 21 22 23 OU1 Work Decree have committed that, upon entry of the OU1 Consent Decree, they shall extend to any such Existing Settling Parties and/or Future Settling Parties identical releases and covenants not to sue and waiver to those set forth in 24 25 Paragraphs 105 and 106, subject to the reservations of rights in Paragraph 107, and 26 in exchange for mutual releases of claims and appeals by those Existing Settling 27 28 Parties and/or Future Settling Parties against Settling Work Defendant and UTC LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 136 - 1 identical to the releases, covenants not to sue, waiver, and reservations set forth in 2 Paragraphs 105 – 107, without further monetary consideration for such covenants 3 4 5 6 and waiver. 110. Covenants Not to Sue the United States on Behalf of EPA by Settling Work Defendant and UTC. Settling Work Defendant and UTC covenants not to 7 8 sue and agree not to assert any claims or causes of action against the United States 9 on behalf of EPA, or its contractors or employees, with respect to the Locust 10 11 12 13 14 Avenue Superfund Site and this Consent Decree, including, but not limited to: a. any direct or indirect claim for reimbursement from the Hazardous Substance Superfund (established pursuant to the Internal Revenue 15 Code, 26 U.S.C. § 9507) through CERCLA Sections 106(b)(2), 107, 111, 112, and 16 113 or any other provision of law; 17 18 19 b. any claims against the United States, including any department, agency or instrumentality of the United States under CERCLA Sections 107 or 20 21 22 23 113, RCRA Section 7002(a), 42 U.S.C. § 6972(a), or state law regarding, the Locust Avenue Superfund Site, the Work, past response actions regarding the Locust Avenue Superfund Site, Past Response Costs, Future Response Costs and 24 25 26 this Consent Decree; c. any claims arising out of response actions at or in connection 27 28 with the Locust Avenue Superfund Site relating to the United States, including any LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 137 - 1 claim under the United States Constitution, the California Constitution, the Tucker 2 Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, the 3 4 5 6 Freedom of Information Act (“FOIA”) as amended (5 U.S.C. § 552) for any FOIA submitted to the United States prior to the Effective Date, or at common law; d. any claim, whether express or deemed by court order, in the 7 8 9 Consolidated Federal Action; e. any direct or indirect claim for disbursement from the 10 11 OU2/OU3 Special Account, or any special account established pursuant to the 12 OU1 Consent Decree; and 13 14 f. any direct or indirect claim for disbursement from the 15 OU2/OU3 Disbursement Special Account, except as provided in Paragraphs 62 16 and 63 (Disbursement of OU2/OU3 Disbursement of Special Account Funds). 17 18 19 111. Settling Work Defendant’s and UTC’s Agreement Regarding Recovery under Federal Contracts. Settling Work Defendant and UTC hereby 20 21 22 23 agree that it shall not in the future seek or receive any portion of any amount it has agreed to pay in this Consent Decree, through any Federal Contract. Pursuant to this Paragraph, Settling Work Defendant and UTC expressly acknowledges that 24 25 they are prohibited from including any portion of the payments made pursuant to 26 this Consent Decree as either direct or indirect costs, or otherwise, in any invoice, 27 28 claim, or demand associated with any Federal Contract. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 138 - 1 2 112. Covenant by Settling Federal Agencies. Settling Federal Agencies agree not to assert any direct or indirect claim for reimbursement from the 3 4 5 6 Hazardous Substance Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507) through CERCLA Sections 106(b)(2), 107, 111, 112, and 113 or any other provision of law with respect to the Locust Avenue Superfund 7 8 Site. The covenant by Settling Federal Agencies described in this Paragraph does 9 not preclude demand for reimbursement from the Superfund of costs incurred by 10 11 any of Settling Federal Agencies in the performance of its duties (other than 12 pursuant to this Consent Decree) as lead or support agency under the National 13 14 Contingency Plan (40 C.F.R. Part 300). 15 113. Except as provided in Paragraph 119 (Claims Against MSW 16 Generators and Transporters), Paragraph 121 (Claims Against De Minimis and 17 18 Ability to Pay Parties), Paragraph 122 (Claims Against De Micromis Parties), and 19 Paragraph 130 (Res Judicata and Certain Other Defenses), the covenants in 20 21 22 23 Paragraph 110 (Covenants Not to Sue the United States on Behalf of EPA by Settling Work Defendant and UTC) shall not apply if the United States brings a cause of action or issues an order pursuant to any of the reservations in Section 24 25 XXI (Covenants, Releases, and Reservations of Rights), other than in Paragraphs 26 99a. (claims for failure to meet a requirement of the Decree), 99f. (criminal 27 28 liability), and 99g. (violations of federal/state law during or after implementation LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 139 - 1 of the Work), but only to the extent Settling Work Defendant’s, UTC’s, or Settling 2 Federal Agencies’ claim arises from the same response action, response costs, or 3 4 5 6 damages that the United States on behalf of EPA is seeking pursuant to the applicable reservation. 114. Claims Against Other Parties in the Consolidated Federal Action. 7 8 9 a. Except as stated in subparagraph b., Settling Work Defendant, UTC, and the United States on behalf of Settling Federal Agencies agree not to 10 11 assert any claims and to waive all claims or causes of action (including but not 12 limited to claims or causes of action under Sections 107(a) and 113 of CERCLA) 13 14 or any other federal or state law that they may have for response costs relating to 15 the Locust Avenue Superfund Site and/or West Side Site against each other or any 16 other person who is or was a party in the Consolidated Federal Action. This 17 18 waiver shall not apply with respect to any defense, claim, or cause of action that 19 Settling Work Defendant or Settling Federal Agency may have against any person 20 21 22 23 if such person asserts a claim or cause of action relating to the Locust Avenue Superfund Site and/or West Side Site against Settling Work Defendant, UTC, or Settling Federal Agency after the date of lodging this Consent Decree. 24 25 26 b. Settling Work Defendant, UTC, and the United States on behalf of Settling Federal Agencies, reserve any and all rights, defenses, claims, demands, 27 28 and causes of action which they may have with respect to Estate of Hescox; Ken LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 140 - 1 Thompson, Inc.; General Dynamics; other parties in the Consolidated Federal 2 Action; and the insurers of any parties in the Consolidated Federal Action, that 3 4 5 6 have not entered into lodged Consent Decrees with the United States as of December 31, 2012, for any matter, transaction, or occurrence relating to the Locust Avenue Superfund Site and the West Side Site; provided however, Settling 7 8 Work Defendant’s and UTC’s rights, defenses, claims, demands, and causes of 9 action against any such party and its insurers shall terminate and be waived to the 10 11 extent such party enters into a final settlement agreement with the United States. 12 This waiver shall not apply with respect to any defense, claim, or cause of action 13 14 that Settling Work Defendant or UTC may have against any person if such person 15 asserts a claim or cause of action relating to the Locust Avenue Superfund Site 16 and/or West Side Site against Settling Work Defendant or UTC after the date of 17 18 19 lodging this Consent Decree. 115. Settling Work Defendant shall terminate its appeals before the Ninth 20 21 22 23 Circuit in United States of America v. Zambelli Fireworks Manufacturing Co., et al., No. 11-56309, and United States of America v. City of Rialto, and County of San Bernardino, et al., No. 12-55342, including associated appeals and each case 24 25 subject to the Amended Order consolidating Appeals filed on April 16, 2012 (Dkt 26 12) within thirty (30) Days after the Effective Date of this Consent Decree. 27 28 116. Notwithstanding the waiver of Section 1542 of the California Civil LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 141 - 1 Code set forth in Paragraph 103, Settling Work Defendant and Settling Federal 2 Agencies also reserve, and this Consent Decree is without prejudice to, any 3 4 5 6 contribution claims they may have in the event any claim is asserted by the United States against Settling Work Defendant or Settling Federal Agencies pursuant to any of the reservations in Section XXI (Covenants, Releases, and Reservations of 7 8 Rights) other than in Paragraphs 99a. (claims for failure to meet a requirement of 9 the Decree), 99f. (criminal liability), and 99g. (violations of federal/state law 10 11 during or after implementation of the Work), but only to the extent that Settling 12 Work Defendant’s or Settling Federal Agencies’ claim arises from the same 13 14 15 16 response action, response costs, or damages that the United States is seeking pursuant to the applicable reservation. 117. Nothing in this Consent Decree shall be deemed to constitute 17 18 preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 19 U.S.C. § 9611, or 40 C.F.R. § 300.700(d). 20 21 22 23 118. EPA will assist Settling Work Defendant and Settling Federal Agencies in obtaining appropriate relief from agencies of the State. 119. Claims Against MSW Generators and Transporters. Settling Work 24 25 Defendant and UTC agree not to assert any claims and to waive all claims or 26 causes of action (including but not limited to claims or causes of action under 27 28 Sections 107(a) and 113 of CERCLA) that they may have for all matters relating to LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 142 - 1 the Locust Avenue Superfund Site against any person where the person’s liability 2 to Settling Work Defendant or UTC with respect to the Locust Avenue Superfund 3 4 5 6 Site is based solely on having arranged for disposal or treatment, or for transport for disposal or treatment, of MSW at the Locust Avenue Superfund Site, if the volume of MSW disposed, treated, or transported by such person to the Locust 7 8 Avenue Superfund Site did not exceed 0.2 percent of the total volume of waste at 9 the Locust Avenue Superfund Site. 10 11 12 13 14 120. The waiver in Paragraph 119 (Claims Against MSW Generators and Transporters) shall not apply with respect to any defense, claim, or cause of action that Settling Work Defendant or UTC may have against any person meeting the 15 criteria in this Paragraph if such person asserts a claim or cause of action relating 16 to the Locust Avenue Superfund Site against Settling Work Defendant or UTC. 17 18 This waiver also shall not apply to any claim or cause of action against any person 19 meeting the above criteria if EPA determines that: (a) the MSW contributed 20 21 22 23 significantly or could contribute significantly, either individually or in the aggregate, to the cost of the response action or natural resource restoration at the Locust Avenue Superfund Site; (b) the person has failed to comply with any 24 25 information request or administrative subpoena issued pursuant to Section 104(e) 26 or 122(e) of CERCLA, 42 U.S.C. § 9604(e) or § 9622(e), or Section 3007 of 27 28 RCRA, 42 U.S.C. § 6927; or (c) the person impeded or is impeding, through action LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 143 - 1 or inaction, the performance of a response action or natural resource restoration 2 with respect to the Locust Avenue Superfund Site. 3 121. Claims Against De Minimis and Ability to Pay Parties. Settling Work 4 5 6 Defendant and UTC agree not to assert any claims or causes of action and to waive all claims or causes of action (including but not limited to claims or causes of 7 8 action under Sections 107(a) and 113 of CERCLA) that they may have for all 9 matters relating to the Locust Avenue Superfund Site against any person that has 10 11 entered or in the future enters into a final CERCLA Section 122(g) de minimis 12 settlement, or a final settlement based on limited ability to pay, with EPA with 13 14 respect to the Locust Avenue Superfund Site. This waiver shall not apply with 15 respect to any defense, claim, or cause of action that Settling Work Defendant or 16 UTC may have against any person if such person asserts a claim or cause of action 17 18 relating to the Locust Avenue Superfund Site against Settling Work Defendant or 19 UTC. 20 21 22 23 122. Claims Against De Micromis Parties. Settling Work Defendant and UTC agree not to assert any claims and to waive all claims or causes of action (including but not limited to claims or causes of action under Sections 107(a) and 24 25 113 of CERCLA) that they may have for all matters relating to the Locust Avenue 26 Superfund Site against any person where the person’s liability to Settling Work 27 28 Defendant and UTC with respect to the Locust Avenue Superfund Site is based LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 144 - 1 solely on having arranged for disposal or treatment, or for transport for disposal or 2 treatment, of hazardous substances at the Locust Avenue Superfund Site, or having 3 4 5 6 accepted for transport for disposal or treatment of hazardous substances at the Locust Avenue Superfund Site, if all or part of the disposal, treatment, or transport occurred before April 1, 2001, and the total amount of material containing 7 8 hazardous substances contributed by such person to the Locust Avenue Superfund 9 Site was less than 110 gallons of liquid materials or 200 pounds of solid materials. 10 11 123. The waiver in Paragraph 122 (Claims Against De Micromis Parties) 12 shall not apply with respect to any defense, claim, or cause of action that Settling 13 14 Work Defendant and UTC may have against any person meeting the criteria in 15 Paragraph 122 if such person asserts a claim or cause of action relating to the 16 Locust Avenue Superfund Site against Settling Work Defendant or UTC. This 17 18 waiver also shall not apply to any claim or cause of action against any person 19 meeting the criteria in Paragraph 122 if EPA determines: 20 21 22 23 a. that such person has failed to comply with any EPA requests for information or administrative subpoenas issued pursuant to Section 104(e) or 122(e) of CERCLA, 42 U.S.C. § 9604(e) or 9622(e), or Section 3007 of RCRA, 42 24 25 U.S.C. § 6927, or has impeded or is impeding, through action or inaction, the 26 performance of a response action or natural resource restoration with respect to the 27 28 Locust Avenue Superfund Site, or has been convicted of a criminal violation for LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 145 - 1 the conduct to which this waiver would apply and that conviction has not been 2 vitiated on appeal or otherwise; or 3 4 5 6 b. that the materials containing hazardous substances contributed to the Locust Avenue Superfund Site by such person have contributed significantly, or could contribute significantly, either individually or in the 7 8 aggregate, to the cost of response action or natural resource restoration at the 9 Locust Avenue Superfund Site. 10 11 XXII. EFFECT OF SETTLEMENT CONTRIBUTION 12 13 14 15 16 17 124. Except as provided in Paragraph 114 (Claims Against Other Parties in the Consolidated Federal Action), Paragraph 119 (Claims Against MSW Generators and Transporters), Paragraph 121 (Claims Against De Minimis/Ability to Pay Parties), and Paragraph 122 (Claims Against De Micromis Parties), nothing 18 19 in this Consent Decree shall be construed to create any rights in, or grant any cause 20 of action to, any person not a party to this Consent Decree. Except as provided in 21 22 23 24 25 Paragraph 109 (Existing Settling Parties and Future Settling Parties), Paragraph 119 (Claims Against MSW Generators and Transporters), Paragraph 121 (Claims Against De Minimis/Ability to Pay Parties), and Paragraph 122 (Claims Against 26 De Micromis Parties), each of the Parties and UTC expressly reserve any and all 27 rights (including, but not limited to, pursuant to Section 113 of CERCLA, 42 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 146 - 1 U.S.C.§ 9613), defenses, claims, demands, and causes of action which each Party 2 or UTC may have with respect to any matter, transaction, or occurrence relating in 3 4 5 6 any way to the Locust Avenue Superfund Site and the RABSP Site against any person not a party hereto. Nothing in this Consent Decree diminishes the right of the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 7 8 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or 9 response action and to enter into settlements that give rise to contribution 10 11 12 13 14 protection pursuant to Section 113(f)(2). 125. The Parties and UTC agree, and by entering this Consent Decree this Court finds, that this Consent Decree constitutes a judicially-approved settlement 15 for purposes of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and that 16 Settling Work Defendant, UTC, Rialto, Colton, County, and the United States on 17 18 behalf of Settling Federal Agencies are entitled, as of the Effective Date, to 19 protection from contribution actions or claims as provided by Section 113(f)(2) of 20 21 22 23 CERCLA, or as may be otherwise provided by law, for “matters addressed” in this Consent Decree. The “matters addressed” in this Consent Decree are all response actions taken or to be taken and all response costs incurred or to be incurred at or 24 25 in connection with the Locust Avenue Superfund Site or the West Side Site by the 26 United States or any other person; provided, however, that if the United States, on 27 28 behalf of EPA, exercises rights against Settling Work Defendant or UTC (or if LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 147 - 1 EPA or the federal natural resource trustees assert rights against Settling Federal 2 Agencies) under the reservations in Section XXI (Covenants, Releases, and 3 4 5 6 Reservations of Rights), other than in Paragraphs 99a. (claims for failure to meet a requirement of the Consent Decree), 99f. (criminal liability), or 99g. (violations of federal/state law during or after implementation of the Work), the “matters 7 8 addressed” in this Consent Decree will no longer include those response costs or 9 response actions that are within the scope of the exercised reservation. Nothing in 10 11 this Paragraph shall limit or affect the ability of any Settling Work Defendant, 12 UTC, the LGEs, or any Settling Federal Agency from exercising their reservations 13 14 15 16 of rights as to each other in Paragraphs 104, 107, or 108, as applicable. 126. The Parties and UTC further agree, and by entering this Consent Decree this Court further finds, that the payments and obligations provided for in 17 18 this Consent Decree represent a good faith compromise of disputed claims and that 19 the compromise represents a fair, reasonable, and equitable resolution. With 20 21 22 23 regard to any claims for costs, damages, or other claims against the Parties and/or UTC, the Parties and UTC agree and this Court finds that Settling Work Defendant, UTC, and the United States on behalf of Settling Federal Agencies, are 24 25 entitled to contribution protection pursuant to the California Code of Civil 26 Procedure §§ 877 and 877.6, and any other applicable provision of federal or state 27 28 law, whether by statute or common law. LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 148 - 1 2 127. The Parties and UTC intend the broadest possible protection from contribution actions provided by law for “matters addressed” in this Consent 3 4 5 6 Decree. 128. Settling Work Defendant and/or UTC shall, with respect to any suit or claim brought by it for matters related to this Consent Decree, notify the United 7 8 States in writing no later than sixty (60) Days, if practicable, prior to the initiation 9 of such suit or claim. If sixty (60) Days’ notice is not practicable, the Settling 10 11 Work Defendant and/or UTC shall provide whatever notice is practicable. This 12 Paragraph does not apply to suits or claims brought by any Settling Work 13 14 15 16 Defendant and/or UTC against its contractors. 129. Settling Work Defendant and/or UTC shall, with respect to any suit or claim brought against it for matters related to this Consent Decree, notify in 17 18 writing the United States, on behalf of EPA, within ten (10) Days of service of the 19 complaint or claim. In addition, Settling Work Defendant and/or UTC shall notify 20 21 22 23 the United States, on behalf of EPA, within ten (10) Days of service or receipt of any motion for summary judgment and within ten (10) Days of receipt of any order from a court setting a case for trial. This Paragraph does not apply to suits or 24 25 claims brought by Settling Work Defendant and/or UTC against its contractors or 26 by any Settling Work Defendant’s and/or UTC’s contractor against that party. 27 28 130. Res Judicata and Certain Other Defenses. In any subsequent LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 149 - 1 administrative or judicial proceeding initiated by the United States, on behalf of 2 EPA, for injunctive relief, recovery of response costs, or other appropriate relief 3 4 5 6 relating to the Locust Avenue Superfund Site, Settling Work Defendant shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other 7 8 defenses based upon any contention that the claims raised by the United States, on 9 behalf of EPA, in the subsequent proceeding were or should have been brought in 10 11 the instant case; provided, however, that nothing in this Paragraph affects the 12 enforceability of the covenants not to sue set forth in Section XXI (Covenants, 13 14 15 16 17 Releases, and Reservations of Rights). XXIII. RETENTION OF RECORDS 131. Until seven (7) years after the Effective Date, Settling Work 18 19 Defendant shall preserve and retain all non-identical copies of Records (including 20 Records in electronic form) now in its possession or control or that come into its 21 22 23 24 25 possession or control that relate in any manner to its liability under CERCLA with respect to the Site; provided however, Settling Work Defendant need not preserve or retain historical documents that were produced in the Consolidated Federal 26 Action or were produced by other Parties to the Consolidated Federal Action. 27 Until three (3) years after receipt of EPA’s notification pursuant to Paragraph 52b. 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 150 - 1 (Completion of the Work), Settling Defendant must also retain, and instruct its 2 contractors and agents to preserve, for the same period of time specified above all 3 4 5 6 non-identical copies of the last draft or final version of any Records (including Records in electronic form) now in its possession or control or that come into its possession or control that relate in any manner to the performance of the Work, 7 8 provided however, that each Settling Defendant (and its contractors and agents) 9 must retain, in addition, copies of all data generated during the performance of the 10 11 Work and not contained in the aforementioned Records required to be retained. 12 Each of the above record retention requirements shall apply regardless of any 13 14 15 16 corporate retention policy to the contrary. 132. After the conclusion of the document retention periods in the preceding Paragraph, Settling Work Defendant shall notify EPA at least one 17 18 hundred twenty (120) Days prior to the destruction of any Records, and, upon 19 request by EPA, shall deliver the requested Records to EPA. Settling Work 20 21 22 23 Defendant may assert that certain Records are privileged under the attorney-client privilege or any other privilege recognized by federal law. If Settling Work Defendant asserts such a privilege in lieu of providing Records, in recognition of 24 25 the large volume of records that may be requested, Settling Work Defendant and 26 EPA shall seek to reach a reasonable agreement on the information that Settling 27 28 Work Defendant must provide to EPA to support such a privilege. In the event LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 151 - 1 Settling Work Defendant and EPA cannot reach agreement on the information that 2 must be provided, the dispute shall be resolved pursuant to Section XIX (Dispute 3 4 5 6 Resolution). If a claim of privilege applies only to a portion of a Record, the Record shall be provided to EPA in redacted form to mask the privileged portion only. Settling Work Defendant shall retain all Records that it claims to be 7 8 privileged until EPA has had a reasonable opportunity to dispute the privilege 9 claim and any such dispute has been resolved in Settling Work Defendant’s favor. 10 11 The requirements in this Paragraph shall not apply to any Record withheld as 12 privileged in the Consolidated Federal Action and exempted by court order (Case 13 14 15 16 Management Order No. 1, Docket No. 601, February 15, 2011) from the requirement to be listed in a privilege log. 133. The United States acknowledges that Settling Federal Agencies (a) are 17 18 subject to all applicable federal record retention laws, regulations, and policies; and 19 (b) hereby confirm that they have produced all relevant non-privileged documents 20 21 22 23 24 25 responsive to discovery requests in the Consolidated Federal Action. XXIV. ACCESS TO INFORMATION 134. Information Related to the Work. Settling Work Defendant shall 26 provide to EPA, upon request, copies of all Records within its possession or 27 control or that of its contractors or agents relating to sampling, analysis, chain of 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 152 - 1 custody records, manifests, trucking logs, receipts, reports, sample traffic routing, 2 correspondence, or other documents or information regarding the Work. Settling 3 4 5 6 Work Defendant shall also make available to EPA, for purposes of investigation, information gathering, or testimony, its employees, agents, or representatives with knowledge of relevant facts concerning the performance of the Work. 7 8 9 135. Business Confidential and Privileged Documents. a. Any Party or UTC may assert business confidentiality claims 10 11 covering part or all of the Records submitted to EPA under this Consent Decree to 12 the extent permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 13 14 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Records determined to be 15 confidential by EPA will be afforded the protection specified in 40 C.F.R. Part 2, 16 Subpart B. If no claim of confidentiality accompanies Records when they are 17 18 submitted to EPA, or if EPA has notified the Party or UTC that the Records are not 19 confidential under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. 20 21 22 23 Part 2, Subpart B, the public may be given access to such Records without further notice to the Party or UTC. b. Any Party or UTC may assert that certain Records are 24 25 privileged under the attorney-client privilege or any other privilege recognized by 26 federal law. If any Party or UTC asserts such a privilege in lieu of providing 27 28 Records, it shall provide EPA with the following: (1) the title of the Record; (2) LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 153 - 1 the date of the Record; (3) the name, title, affiliation (e.g., company or firm), and 2 address of the author of the Record; (4) the name and title of each addressee and 3 4 5 6 recipient; (5) a description of the contents of the Record; and (6) the privilege asserted by any Party or UTC. If a claim of privilege applies only to a portion of a Record, the Record shall be provided to EPA in redacted form to mask the 7 8 privileged portion only. Any Party or UTC shall retain all Records that they claim 9 to be privileged until EPA has had a reasonable opportunity to dispute the privilege 10 11 12 13 14 15 16 claim and any such dispute has been resolved in that Party’s or UTC’s favor. c. No Records created or generated that are required by this Consent Decree shall be withheld from the United States on the grounds that they are privileged or confidential. 136. No claim of confidentiality or privilege shall be made by Settling 17 18 Work Defendant with respect to the analytical results of any sampling at or around 19 the Locust Avenue Superfund Site. 20 21 XXV. NOTICES AND SUBMISSIONS 22 23 24 25 137. Whenever, under the terms of this Consent Decree, written notice is required to be given or a report or other document is required to be sent by one 26 party to another, it shall be directed to the individuals at the addresses specified 27 below, unless those individuals or their successors give notice of a change to the 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 154 - 1 other parties in writing. All notices and submissions shall be considered effective 2 upon receipt, unless otherwise provided. Written notice as specified in this Section 3 4 5 6 shall constitute complete satisfaction of any written notice requirement of the Consent Decree with respect to the United States, EPA, Settling Federal Agencies Settling Work Defendant, and UTC, respectively. Notices required to be sent to 7 8 EPA, and not to the United States, under the terms of this Consent Decree should 9 not be sent to the U.S. Department of Justice. 10 11 As to the United States: 12 Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044-7611 Re: DJ # 90-11-2-09952 13 14 15 16 17 18 19 20 21 22 23 -andChief, Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044-7611 Re: DJ # 90-11-6-17144/1 As to EPA: 24 25 26 27 28 Remedial Project Manager, Locust Avenue Superfund Site Wayne Praskins United States Environmental Protection Agency Region 9 75 Hawthorne Street San Francisco, California 94105 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 155 - 1 2 3 4 5 6 7 As to the State of California: As to DTSC: Rafat A. Abbasi, P.E. Senior Project Manager Brownfields and Environmental Restoration Division 5796 Corporate Way Cypress, California 90630 -and- 8 9 10 11 12 As to the Santa Ana Regional Water Quality Control Board: Kurt V. Berchtold Executive Officer Santa Ana Regional Water Quality Control Board 3737 Main Street, Suite 500 Riverside, California 92501-3339 13 14 15 16 17 18 19 20 21 22 23 24 As to Rialto: City Attorney for City of Rialto 12616 Central Avenue Chino, California 91710 Attn: Jimmy Gutierrez (for notice only) -andPaul Hastings LLP 55 Second Street Twenty-Fourth Floor San Francisco, California 94105 Attn: Peter H. Weiner (for notice only) 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 156 - 1 As to Colton: 2 City Manager Attn: Rod Foster City of Colton 650 North La Cadena Dr. Colton, California 92324 3 4 5 6 -and- 7 8 9 10 City Attorney Best Best & Krieger LLP 3500 Porsche Way, Suite 200 Ontario, California 91764 11 12 13 14 15 16 As to Settling Work Defendant and UTC: David Platt Assistant General Counsel United Technologies Corporation United Technologies Building Hartford, Connecticut 06101 17 18 -and- 19 Bruce Amig Remediation Manager United Technologies Corporation 2730 West Tyvola Rd Charlotte, North Carolina 28217 20 21 22 23 24 XXVI. RETENTION OF JURISDICTION 25 26 27 138. This Court retains jurisdiction over the subject matter of this Consent Decree, and over Settling Work Defendant, UTC, and Settling Federal Agencies 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 157 - 1 for the duration of the performance of the terms and provisions of this Consent 2 Decree for the purpose of enabling any of the Parties and UTC to apply to the 3 4 5 6 Court at any time for such further order, direction, and relief as may be necessary or appropriate for the construction or modification of this Consent Decree, or to effectuate or enforce compliance with its terms, or to resolve disputes in 7 8 accordance with Section XIX (Dispute Resolution). 9 XXVII. 10 APPENDICES 11 12 13 14 15 16 17 139. The following appendices are attached to and incorporated into this Consent Decree: “Appendix A” is a map of the 160-Acre Area, County Property, RABSP Area, Stonehurst Property, West Side Area. “Appendix B” is list of Existing Settling Parties. 18 19 “Appendix C” is the SOW. 20 21 XXVIII. COMMUNITY RELATIONS 22 23 24 25 26 140. If requested by EPA, Settling Work Defendant shall participate in community relations activities pursuant to any community involvement plan developed by EPA for the Locust Avenue Superfund Site. EPA will determine the 27 appropriate role for Settling Work Defendant under the Plan. Settling Work 28 Defendant shall also cooperate with EPA in providing information regarding the LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 158 - 1 Work to the public. As requested by EPA, Settling Work Defendant shall 2 participate in the preparation of such information for dissemination to the public 3 4 5 and in public meetings which may be held or sponsored by EPA to explain activities at or relating to the Locust Avenue Superfund Site. 6 XXIX. 7 MODIFICATION 8 9 10 141. Except as provided in Paragraph 15 (Modification of SOW or Work Plans Required by the SOW), material modifications to this Consent Decree, 11 12 including the SOW, shall be in writing, signed by the United States and Settling 13 Work Defendant, and shall be effective upon approval by the Court. Except as 14 15 16 17 provided in Paragraph 15 (Modification of SOW or Work Plans Required by the SOW), non-material modifications to this Consent Decree, including the SOW, shall be in writing and shall be effective when signed by duly authorized 18 19 representatives of the United States and Settling Work Defendant. A modification 20 to the SOW shall be considered material if it fundamentally alters the basic 21 22 23 24 25 26 27 features of the selected remedy within the meaning of 40 C.F.R. § 300.435(c)(2)(ii). Before providing its approval to any modification to the SOW, the United States will provide the State with a reasonable opportunity to review and comment on the proposed modification. 142. Nothing in this Consent Decree shall be deemed to alter the Court’s 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 159 - 1 power to enforce, supervise, or approve modifications to this Consent Decree. 2 3 XXX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 4 5 6 7 8 9 10 143. This Consent Decree shall be lodged with the Court for a period of not less than thirty (30) Days for public notice and comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold its consent if the comments regarding the Consent Decree disclose facts or considerations which 11 12 indicate that the Consent Decree is inappropriate, improper, or inadequate. 13 Settling Work Defendant and UTC consent to the entry of this Consent Decree 14 15 16 17 without further notice. 144. If for any reason the Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of 18 19 any Party and the terms of the agreement may not be used as evidence in any 20 litigation between the Parties. 21 22 XXXI. SIGNATORIES/SERVICE 23 24 25 26 145. The undersigned representative of Settling Work Defendant to this Consent Decree, the Associate Attorney General of the Department of Justice 27 and/or Assistant Attorney General for the Environment and Natural Resources 28 Division of the Department of Justice on behalf of the United States, as reflected in LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 160 - 1 the signature block below, certifies that he or she is fully authorized to enter into 2 the terms and conditions of this Consent Decree and to execute and legally bind 3 4 5 6 such Party and UTC to this document. 146. Settling Work Defendant, UTC, and Settling Federal Agencies agree not to oppose entry of this Consent Decree by this Court or to challenge any 7 8 provision of this Consent Decree unless the United States, on behalf of EPA, has 9 notified Settling Work Defendant, UTC, and Settling Federal Agencies in writing 10 11 12 13 14 that it no longer supports entry of the Consent Decree. 147. Settling Work Defendant and UTC shall identify, on the attached signature pages, the name, address and telephone number of an agent who is 15 authorized to accept service of process by mail on behalf of that Settling Work 16 Defendant and UTC with respect to all matters arising under or relating to this 17 18 Consent Decree. Settling Work Defendant and UTC agree to accept service in that 19 manner and to waive the formal service requirements set forth in Rule 4 of the 20 21 22 Federal Rules of Civil Procedure and any applicable local rules of this Court, including, but not limited to, service of a summons. 23 24 XXXII. FINAL JUDGMENT 25 26 148. This Consent Decree and its appendices constitute the final, complete, 27 and exclusive agreement and understanding among the Parties and UTC regarding 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 161 - 1 the settlement embodied in the Consent Decree. The Parties and UTC 2 acknowledge that there are no representations, agreements or understandings 3 4 5 relating to the settlement other than those expressly contained in this Consent Decree. 6 149. Upon entry of this Consent Decree by the Court, this Consent Decree 7 8 shall constitute a final judgment between and among the United States, Settling 9 Work Defendant, and UTC. The Court finds that there is no just reason for delay 10 11 and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 12 58. 13 14 15 16 July SO ORDERED THIS 2ndDAY OF _______, 2013. __ _________________________________ HONORABLE PHILIP S. GUTIERREZ United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 162 - 1 FOR THE UNITED STATES OF AMERICA: 2 r 3 4 5 6 7 8 Dated: biz By: ~• ~2~~ G ACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division United States Department of Justice Washington,DC 20530 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 163 - 1 FOR THE UNITED STATES OF AMERICA: 2 ~~ 3 4 Dated: ~'1~as,a~~~ 5 6 7 8 9 By BRADLEY R. O RIEN Senior Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice 301 Howard St., Suite 1050 San Francisco, California 94105 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 164 - 1 FOR THE UNITED STATES OF AMERICA: 2 3 4 Dated: 5 6 7 8 9 10 ~ ~s °~ By: G~ MIC AEL C. AUGUSTINI MARK A. RIGAU ROBERT FOSTER Environmental Defense Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, DC 20044-7611 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 165 1 FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:. 2 3 Dated: ~ 1 ~ ~',` 1 ~ gy. ~ _ . ..._~_.._~. JANE _ IAMOND Director, Superfund Division, Region IX U.S. Environmental Protection Agency 75 Hawthorne Street San Francisco, California 94105 By: 5~---~ ~e~ BENSON MI HELE Assistant Regional Counsel U.S. Environmental Protection Agency Region IX 75 Hawthorne Street San Francisco, California 94105 4 5 6 7 1 8 9 1Q 11 I2 13 14 Dated:`h ~; r:~ ~ c~/ 3. 15 16 17 18 19 20 21 ~~ 23 24 25 26 ~7 ~~ LOCUST AVENUC SUPERFUND SITE CONSENT DECREE - 1(iEi 1 FOR GOODRICH CORPORATION: 2 3 i 4 Dated: ~,~ 1 ~ 5 6 7 8 By: Peter Guterm n Attorney-in-Fact for Goodrich Corporation Vice President &General Counsel, UTC Propulsion and Aerospace Systems One Financial Plaza Hartford, Connecticut 06101 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE -2/19/13- MEDIATION CONFIDENTIAL PER COURT ORDER - 167 1 FOR UNITED TECHNOLOGIES CORPORATION: 2 3 4 5 6 7 8 Dated: ~ ~Z D /~ By: Charles Senior Vice President and General Counsel United Technologies Corporation United Technologies Building Hartford, Connecticut 06101 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2/19/13- MEDIATION LOCUST AVENUE SUPERFUND SITE CONSENT DECREE COURT ORDER CONFIDENTIAL PER - 168 1 FOR THE COUNTY OF SAN BERNARDINO: 3 4 5 6 Dated: 3 ~ ~ ~5~~3 By: GHER THOMAS A. BLZ?0~V1 Gallagher &Gallagher 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE .' 1 FOR THE CITY OF RIALTO: 2 3 4 ~,~~ Dated: `~` ~ ~ /~;;' /~~ ~. , 5 6 7 g 9 ATTEST: 10 11 12 13 !~ c ~ G BA BABA McGEE,CITY CLERK 14 15 16 APPROVED AS TO FORM: 17 18 19 20 21 22 ~-~ ~ V V -evn,v~. PETER WEINER Paul Hastings, LLP 23 24 25 26 27 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 170 1 FOR THE CITY OF COLTON: 2 3 4 Dated: '`~ ~ ~ ~ t GENE TANAKA DANIELLE G. SAKAI Best B_~,st..$~ Krieger LL 5 6 7 8 9 10 11 Dated: ``~ ~ ~ ~ ~~ By: City Manager City of Colton 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPFRFUNU SITE CONSENT DL'CREE 1 2 Appendix A 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 172 - APPENDIX A 160-Acre Area 160-Acre Area County Property Stonehurst Property Stonehurst West Side Area Rialto Ammunition Backup Storage Point (“RABSP”) NOT TO SCALE A Locust Avenue Superfund Site Consent Decree - 173 - 1 Appendix B 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APE, Inc.-West and APE, Inc. Astro Pyrotechnics, Inc. Broco, Inc. and J.S. Brower & Associates, Inc. City of Rialto City of Colton County of San Bernardino Emart Industries, Inc. Emhart Related Parties (Black & Decker Corporation (“BDC”); Black & Decker Inc. (“BDI”); Kwikset Corporation (“Kwikset”); Kwikset Locks, Inc. (“KLI”); all other parent, subsidiary, and affiliate entities of BDC, BDI, Kwikset, KLI, and Emhart Industries, Inc.; Fred Skovgard and his presumptive heirs and estate; and Mildred Wilkens (deceased) and her heirs and estate. Ensign-Bickford Co. Peters Parties (Thomas O. Peters and The 1996 Thomas O. Peters And Kathleen S. Peters Revocable Trust) Pyro Spectaculars, Inc. Raytheon Robertson’s Ready Mix, Inc. Schulz Parties (Schulz Parties include the following: Edward Stout; Edward Stout as the Trustee of the Stout-Rodriquez Trust; Elizabeth Rodriquez; John Callagy as Trustee of the Fredricksen Children’s Trust Under Trust Agreement Dated February 20, 1985; John Callagy as Trustee of the E.F. Schulz Trust; Linda Fredricksen; Linda Fredricksen as Trustee of the Walter M. Pointon Trust Dated 11/19/1991; Linda Fredricksen as Trustee of the Michelle Ann Pointon Trust Under Trust Agreement Dated February 15, LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 174 - 1 1985; Linda Fredricksen as Trustee of the E.F. Schulz Trust; John Callagy; 2 Mary Callagy; Jeanine Elzie; Stephen Callagy; Michelle Ann Pointon; and 3 Anthony Rodriquez 4 Stonehurst Site LLC 5 Trojan Fireworks Company 6 Whittaker Corporation 7 Zambelli Parties (Zambelli Fireworks Manufacturing Company, Inc., Zambelli 8 Fireworks Company, aka Zambelli Fireworks International, and Zambelli 9 Fireworks Manufacturing Company 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 175 - 1 2 Appendix C 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOCUST AVENUE SUPERFUND SITE CONSENT DECREE - 176 - Consent Decree -177- Consent Decree -178- Consent Decree -179- Consent Decree -180- Consent Decree -181- Consent Decree -182- Consent Decree -183- Consent Decree -184- Consent Decree -185- Consent Decree -186- Consent Decree -187- Consent Decree -188- Consent Decree -189- Consent Decree -190- Consent Decree -191- Consent Decree -192- Consent Decree -193- Consent Decree -194- Consent Decree -195- Consent Decree -196- Consent Decree -197- Consent Decree -198- Consent Decree -199- Consent Decree -200- Consent Decree -201- Consent Decree -202- Consent Decree -203-

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