United States of America et al v. Boeing Company, No. 2:2010cv00758 - Document 8 (W.D. Wash. 2010)

Court Description: CONSENT ORDER granting 5 Motion for Judgment by Judge Ricardo S Martinez.(RS)

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United States of America et al v. Boeing Company Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON 10 11 12 13 14 15 16 17 18 19 20 21 AT SEATTLE __________________________________ ) UNITED STATES OF AMERICA, ON ) No. CV-10-758 RSM BEHALF OF THE NATIONAL OCEANIC ) AND ATMOSPHERIC ) ADMINISTRATION AND THE UNITED ) STATES DEPARTMENT OF THE ) CONSENT DECREE INTERIOR; THE STATE OF ) WASHINGTON THROUGH THE ) WASHINGTON DEPARTMENT OF ) ECOLOGY; MUCKLESHOOT INDIAN ) TRIBE; SUQUAMISH TRIBE, ) ) Plaintiffs, ) ) v. ) ) THE BOEING COMPANY, ) ) Defendant. ) __________________________________ ) 22 23 24 25 26 27 28 CONSENT DECREE U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 Dockets.Justia.com TABLE OF CONTENTS 1 2 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 II. RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4 III. JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 IV. PARTIES BOUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 6 V. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 7 VI. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8 VII. PROJECT DEVELOPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 9 VIII. ACCESS TO INFORMATION AND PROJECT SITE . . . . . . . . . . . . 20 10 IX. SELECTION OF CONTRACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 11 X. REIMBURSEMENT OF RESTORATION IMPLEMENTATION COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 12 13 XI. PAST COST REIMBURSEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 14 XII. FUND FOR PERMANENT STEWARDSHIP OF PROJECT SITE . . 25 15 XIII. FAILURE TO MAKE TIMELY PAYMENTS . . . . . . . . . . . . . . . . . . . 26 16 XIV. DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 17 XV. STIPULATED PENALTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 18 XVI. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 19 XVII. INDEMNIFICATION; INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 34 20 XVIII. COVENANT NOT TO SUE BY PLAINTIFFS . . . . . . . . . . . . . . . . . . . 36 21 XIX. RESERVATIONS OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 22 XX. COVENANT NOT TO SUE BY DEFENDANT . . . . . . . . . . . . . . . . . 38 23 XXI. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION . . . . 39 24 XXII. RETENTION OF RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 25 XXIII. NOTICES AND SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 26 XXIV. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 27 XXV. RETENTION OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 28 CONSENT DECREE -i- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 XXVI. INTEGRATION/APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 2 XXVII. MODIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 3 XXVIII. ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 4 XXIX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT . . . . 45 5 XXX. 6 XXXI. SIGNATORIES/SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 7 XXXII. FINAL JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -ii- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 I. INTRODUCTION 1 2 The United States of America (“United States”), on behalf of the United 3 States Department of Commerce, acting through the National Oceanic and 4 Atmospheric Administration (“NOAA”), and the United States Department of 5 the Interior; the State of Washington (the “State”) through the Washington State 6 Department of Ecology; the Suquamish Tribe; and the Muckleshoot Indian Tribe 7 (collectively, “Plaintiffs”), have filed a complaint in this case against defendant 8 The Boeing Company (“Defendant” or “Boeing”) pursuant to Section 107 of the 9 Comprehensive Environmental Response, Compensation and Liability Act of 10 1980, as amended (“CERCLA”), 42 U S .C § 9607; the Model Toxics Control 11 Act (“MTCA”), chapter 70.105D RCW; Section 311 of the Clean Water Act 12 (“CWA”), 33 U.S.C. § 1321; and Section 1002(b)(2)(A) of the Oil Pollution Act 13 of 1990 (“OPA”), 33 U.S.C. § 2702(b)(2)(A) for Covered Natural Resource 14 Damages (as defined below). This Consent Decree (the “Decree”) addresses the 15 claims asserted in the Complaint against the Defendant. II. RECITALS 16 17 A. The United States Department of Commerce, acting through 18 NOAA; the United States Department of the Interior; the Washington 19 Department of Ecology on behalf of the State of Washington; the Suquamish 20 Tribe, and the Muckleshoot Indian Tribe (collectively, “the Trustees” and, 21 individually, a “Trustee”), under the authority of Section 107(f) of CERCLA, 42 22 U.S.C. § 9607(f), Section 1006(b) of OPA, 33 U.S.C. § 2706(b), 40 C.F.R. Part 23 300, subpart G, and RCW 70.105D.040(2), serve as trustees for natural resources 24 for the assessment and recovery of damages for injury to, destruction of, or loss 25 of natural resources under their trusteeship. 26 27 B. Investigations conducted by the Trustees and others have detected hazardous substances in the sediments, soils and groundwater of the Lower 28 CONSENT DECREE -1- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Duwamish Waterway, including but not limited to arsenic, antimony, cadmium, 2 chromium, copper, mercury, nickel, lead, zinc, bis(2 ethylhexyl) phthalate, 3 hexachlorobenzene, hexachorobutadiene, polychlorinated biphenyls (PCBs), and 4 polycyclic aromatic hydrocarbons (PAHs). Overall, the Trustees have 5 documented the presence of over 30 hazardous substances in the marine 6 sediments of the Lower Duwamish Waterway. 7 C. The Trustees began assessing damages to natural resources in the 8 Lower Duwamish Waterway in 1990 by finding that hazardous substances had 9 been released into the Lower Duwamish Waterway; that natural resources had 10 likely been injured by the releases; that data sufficient to pursue a natural 11 resource damage assessment were available or could likely be obtained at a 12 reasonable cost; and that, without further action, future response activities would 13 not adequately remedy the resource injuries. See, e.g., NOAA, Lower Duwamish 14 Waterway Sediment Characterization Study Report (Dec. 10, 1998). Based on 15 these findings, the Plaintiffs concluded that no further natural resource damage 16 assessment is required to effectuate the purposes of this Consent Decree, with 17 respect to Defendant. 18 D. Plaintiffs have filed a complaint (the “Complaint”) pursuant to 19 Section 107 of CERCLA, 42 U.S.C. § 9607; MTCA, chapter 70.105D RCW; 20 CWA, 33 U.S.C. § 1251 et seq.; and OPA, 33 U.S.C. § 2701 et seq., seeking 21 recovery from Defendant of damages for injury to, destruction of, and loss of 22 natural resources resulting from releases of hazardous substances into the Lower 23 Duwamish Waterway, including the costs of assessing the damages. 24 E. Plaintiffs allege in the Complaint that Defendant owns or in the past 25 owned and/or operated real property or facilities on, adjacent to, or near the 26 Lower Duwamish Waterway. Plaintiffs further allege that from each of such 27 sites identified below by tax parcel number, storm water, surface water runoff, 28 CONSENT DECREE -2- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 wastewater, other process discharges, and/or groundwater have flowed to the 2 Lower Duwamish Waterway. Plaintiffs also allege that investigations have 3 detected hazardous substances in soils, groundwater or sediments on or in those 4 properties or facilities. Some of these hazardous substances are found in the 5 sediments of the Lower Duwamish Waterway. 6 F. Plaintiffs further allege that hazardous substances have been or are 7 being released to the Lower Duwamish Waterway from properties or facilities 8 owned and/or operated by Defendant through direct discharge, surface water 9 runoff, groundwater and/or seeps, and that those hazardous substances have 10 caused injury to, destruction of and loss of natural resources in the Lower 11 Duwamish Waterway under Plaintiffs’ trusteeship, including fish, shellfish, 12 invertebrates, birds, marine sediments, and resources of cultural significance. 13 Plaintiffs further allege that each of them and the public have suffered the loss of 14 natural resource services (including ecological services as well as direct and 15 passive human use losses) as a consequence of those injuries. 16 G. Plaintiffs allege that the Defendant is (a) the owner and/or operator 17 of one or more facilities; (b) a person who at the time of disposal or release of 18 any hazardous substance owned or operated any facility at which such hazardous 19 substances were disposed of; (c) a person who by contract, agreement, or 20 otherwise arranged for disposal or treatment, or arranged with a transporter for 21 transport for disposal or treatment, of hazardous substances owned or possessed 22 by such person, by any other party or entity, or otherwise generated any 23 hazardous substance disposed of or treated at any facility or incineration vessel 24 owned or operated by another party or entity and containing such hazardous 25 substances; and/or (d) a person who accepts or accepted any hazardous 26 substances for transport to disposal or treatment facilities, incineration vessels or 27 sites selected by such person from which there is a release or a threatened release 28 CONSENT DECREE -3- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 of a hazardous substance that causes the incurrence of response costs within the 2 meaning of 42 U.S.C. § 9607 and RCW 70.105D.040. 3 H. Defendant denies all or portions of the allegations of the Complaint, 4 and all or portions of the allegations contained in Paragraphs E, F, and G, of this 5 Section. 6 I. Although the Trustees have initiated but not yet completed a natural 7 resource damage assessment for the Lower Duwamish Waterway, the Trustees 8 have developed and analyzed information sufficient to support a settlement that 9 is fair, reasonable and in the public interest. 10 J. In settlement of this action, Defendant has agreed, in lieu of and as 11 equivalent to monetary damages, to implement the habitat restoration project 12 described in Appendix A (“Boeing Habitat Project” or the “Project”). Defendant 13 has also agreed to provide funds to support project implementation costs 14 expended by the Trustees, to fund the permanent stewardship of the Project Site, 15 and to reimburse natural resource damage assessment costs incurred by the 16 Trustees. 17 K. The Project described in Appendix A is to be developed in three 18 phases. The first phase is the design and initial construction of the project. The 19 second phase is a ten year period following completion of project construction 20 during which Defendant is responsible for developing and monitoring vegetation 21 and habitat at the project site. During this ten-year period, the Defendant may be 22 required to take a number of active steps to achieve the vegetation and habitat 23 success criteria for the Project that are presented in Appendix A. The third phase 24 is an additional twenty-year period during which Defendant is responsible for 25 maintaining the vegetation and habitat developed during the second phase. 26 During and after all three phases of the Project, Defendant will take the measures 27 28 CONSENT DECREE -4- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 needed to ensure that the Project Site remains available for, and dedicated to the 2 use of, the Project. 3 L. The Trustees have determined that the timely actions and payment 4 of certain costs to be undertaken by Defendant under this Consent Decree are 5 appropriate and necessary to protect and restore the natural resources allegedly 6 injured as a result of alleged actions or omissions of Defendant that are 7 addressed herein, and that such timely actions and expenditures are adequate to 8 redress Defendant’s responsibility for the Covered Natural Resource Damages 9 that are the subject of this proceeding. 10 M. Defendant does not admit any liability to Plaintiffs arising out of the 11 transactions or occurrences alleged in the Complaint and the matters alleged in 12 this Consent Decree. 13 N. Plaintiffs and Defendant (collectively, the “Parties” and, 14 individually, a “Party”) agree that this Decree addresses the resolution of 15 Plaintiffs’ claims for Covered Natural Resource Damages as defined below, and 16 that neither Plaintiffs nor Defendant will use this settlement (including the terms 17 of this Decree and the basis for the compromise contained in other documents 18 filed in this action in support of this Decree) in any other forum, whether in 19 litigation, administrative proceedings, formal or informal negotiations, or 20 otherwise, to resolve, attempt to resolve, or in any way influence the resolution 21 of, other claims between Plaintiffs and Defendant in the Lower Duwamish 22 Waterway (as defined below); provided, however, that this provision does not 23 limit Plaintiffs or Defendant from using otherwise-available factual information 24 referenced in documents filed in support of this Decree. The restriction in the 25 preceding sentence applies to, but is not limited to, claims that the United States 26 (on behalf of the United States Environmental Protection Agency) and the State 27 may have against Defendant under CERCLA, the Solid Waste Disposal Act (as 28 CONSENT DECREE -5- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 amended by the Resource Conservation and Recovery Act), 42 U.S.C. §§ 6901 et 2 seq., or MTCA in the Lower Duwamish Waterway (as defined below). 3 O. Plaintiffs and Defendant agree that if Defendant wishes to raise any 4 concerns with EPA regarding the effect of DSOA Work (as defined below) on the 5 Project to be constructed by Defendant pursuant to this Consent Decree, 6 Defendant will raise those concerns solely with the EPA Region that issued the 7 DSOA Order (as defined below); provided, however, that this provision does not 8 authorize any disputes under this Decree to be resolved under the dispute 9 resolution provisions of the DSOA Order. 10 P. Plaintiffs and Defendant agree, and this Court by entering this 11 Decree finds, that this Decree has been negotiated by the Parties in good faith; 12 that settlement of this matter will avoid prolonged and complicated litigation 13 between the Parties; and that this Decree is fair, reasonable, and in the public 14 interest. 15 NOW, THEREFORE, it is hereby Ordered, Adjudged and Decreed: III. JURISDICTION AND VENUE 16 17 1. This Court has jurisdiction over the subject matter of this action 18 pursuant to 28 U.S.C. §§ 1331, 1345 and l367, 42 U.S.C. § 9613(b), and 33 19 U.S.C. § 2717(b). The Court has personal jurisdiction over the Parties. Solely for 20 the purposes of this Decree and the underlying Complaint, the Parties waive all 21 objections and defenses that they may have to jurisdiction of the Court or to 22 venue in this District. The Parties may not challenge the terms of this Decree or 23 this Court’s jurisdiction to enter and enforce this Decree. IV. PARTIES BOUND 24 25 2. This Decree is binding upon the United States, the State, the 26 Suquamish Tribe, the Muckleshoot Indian Tribe, and the Defendant and its heirs, 27 successors and assigns. Any change in ownership or corporate or other legal 28 CONSENT DECREE -6- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 status, including but not limited to any transfer of assets or real or personal 2 property, will in no way alter the status or responsibilities of the Defendant under 3 this Decree. 4 3. Defendant shall provide a copy of this Consent Decree to each 5 contractor hired by Defendant to perform any of the work required by this 6 Consent Decree, and to each person representing Defendant with respect to any 7 such work, and shall condition all future contracts entered into by Defendant 8 hereunder upon performance of the work in conformity with the terms of this 9 Consent Decree. Defendant or its contractors shall provide written notice of the 10 Consent Decree to all subcontractors hired by Defendant’s contractors to perform 11 any portion of the work. Defendant shall nonetheless be responsible for ensuring 12 that all work performed by its contractors and subcontractors is performed in 13 accordance with this Consent Decree. V. DEFINITIONS 14 15 4. Unless otherwise expressly provided, terms used in this Decree that 16 are defined in CERCLA or in regulations promulgated under CERCLA have the 17 meanings assigned to them in CERCLA or in such regulations. Whenever the 18 terms listed below are used in this Decree or in any attached appendix, the 19 following definitions will apply: a. 20 “CERCLA” means the Comprehensive Environmental 21 Response, Compensation, and Liability Act of 1980, as amended, 42 U S C. § 22 9601, et seq. 23 b. “Consent Decree” or “Decree” means this Consent Decree and 24 all attached appendices. In the event of a conflict between this Consent Decree 25 and any Appendix, the Consent Decree will control. 26 27 c. “Covered Natural Resource Damages” means damages, including costs of damage assessment, recoverable under Section 107 of 28 CONSENT DECREE -7- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 CERCLA, 42 U.S.C. § 9607; Chapter 70.105D RCW; Section 311 of the Clean 2 Water Act (“CWA”), 33 U.S.C. § 1321; and Section 1002 of the Oil Pollution Act 3 of 1990 (“OPA”), 33 U S.C. § 2702(b), for injury to, destruction of, or loss of 4 natural resources resulting from releases of hazardous substances or discharges of 5 oil to the Lower Duwamish Waterway and/or Elliott Bay, where such release or 6 discharge occurred on or before the effective date of this Consent Decree, at the 7 following locations: Boeing Developmental Center (tax parcels 0003400018, 8 0003400026, 0003400028, 0003400048, 0423049016, 0423049047, 0423049183, 9 5624200990, 5624200992, 5624201032, 5624201036, 5624201038); Museum of 10 Flight (tax parcel 5624201034); Boeing Thompson Site (tax parcel 0007400033); 11 Isaacson Site (tax parcel 0001600014); South Park Site (tax parcels 7883608601, 12 7883608603); Boeing Plant 2 (tax parcels 0001600020, 0022000005, 13 0022000165, 0022000195, 2185000005, 2824049009, 2924049056, 2924049098, 14 2924049112, 3324049002); and Boeing Field (tax parcels 2924049066, 15 2924049106). Damages, injury to, destruction of, or loss of natural resources 16 resulting from releases of hazardous substances originating from Defendant’s 17 operations or activities outside of the tax parcels identified in this sub-paragraph 18 are not included in Covered Natural Resource Damages, even if those hazardous 19 substances reach the Lower Duwamish Waterway by flowing over, under, or 20 through one or more of the tax parcels identified in this sub-paragraph. 21 d. “Day” means a calendar day. In computing any period of time 22 under this Consent Decree, where the last day falls on a Saturday, Sunday, or 23 federal holiday, the period of time will run until the close of business of the next 24 working day. “Working day” means a day other than a Saturday, Sunday, or 25 Federal holiday. 26 e. “Defendant” means The Boeing Company. 27 28 CONSENT DECREE -8- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 f. 1 “DSOA Order” means the Resource Conservation and 2 Recovery Act Administrative Order on Consent agreed upon by the Defendant 3 and the U.S. Environmental Protection Agency, EPA Docket No. 1092-01-22- 4 3008(h). g. 5 “DSOA Work” means the corrective measures being 6 developed and implemented by Defendant to address the contamination in the 7 Plant 2 Duwamish Sediments Other Area (“DSOA”) pursuant to the DSOA 8 Order. 9 h. “Elliott Bay” means any portion of Elliott Bay (including the 10 shoreline, intertidal areas, tributaries, estuaries and bottom sediments) in the State 11 of Washington where hazardous substances originating from the parcels identified 12 in the definition of Covered Natural Resource Damages have come to be located. 13 i. “Lower Duwamish Waterway” means any portion of the 14 Duwamish Waterway (including the shoreline, intertidal areas, tributaries, 15 estuaries and bottom sediments) in the State of Washington where hazardous 16 substances originating from the parcels identified in the definition of Covered 17 Natural Resource Damages have come to be located. 18 j. “Lower Duwamish Waterway Stewardship Account” means 19 the account to be authorized for receipt of funds to be paid by the Defendant for 20 the Trustees’ permanent stewardship of the Project Site. 21 22 23 24 25 26 27 k. “MTCA” means the Model Toxics Control Act, Chapter 70.105D RCW. l. “Natural Resources” means that definition as provided in 42 U.S.C. § 9601(16). m. “Parties” means the United States, the State of Washington, the Suquamish Tribe, the Muckleshoot Indian Tribe, and Defendant. n. “Plaintiffs” means the United States, the State, the Suquamish 28 CONSENT DECREE -9- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Tribe, and the Muckleshoot Indian Tribe. o. 2 3 “Project” means all of the work and other commitments as described in Appendix A. 4 p. “Project Site” means the areas outlined in Appendix A. 5 q. “Trustees” mean the United States Department of Commerce, 6 acting through NOAA; the United States Department of the Interior; the 7 Washington State Department of Ecology, on behalf of the State of Washington; 8 the Suquamish Tribe; and the Muckleshoot Indian Tribe. VI. GENERAL PROVISIONS 9 10 5. The Complaint states claims upon which relief may be granted. 11 6. Nothing in this Consent Decree shall be construed as an admission of 12 liability by Defendant for any claims or allegations made in the Complaint or in 13 this Consent Decree. 14 7. This Consent Decree shall not be used as evidence of Defendant’s 15 alleged liability in any action or proceeding other than an action or proceeding to 16 enforce the terms of this Consent Decree. 17 8. All activities undertaken by Defendant pursuant to this Consent 18 Decree shall be performed in accordance with the requirements of all applicable 19 laws and permits. 20 9. Defendant shall ensure that all work performed under this Consent 21 Decree shall be conducted as set forth in Appendix A attached hereto. If the 22 Trustees determine that Defendant is not complying with the requirements set 23 forth in the Decree and Appendix A, the Trustees shall provide prompt written 24 notice to Defendant specifying the basis for their determination of 25 noncompliance. Defendant may correct the noncompliance or invoke the dispute 26 resolution procedures set forth in Section XIV below. The Trustees may require 27 Defendant to take actions, to alter, suspend or cease ongoing activities, and to 28 CONSENT DECREE -10- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 alter, postpone or refrain from taking proposed actions, as are necessary to ensure 2 compliance with the terms of this Consent Decree and any plans or proposals 3 adopted hereunder. If Defendant disputes any such requirements imposed by the 4 Trustees, the Defendant may invoke the dispute resolution procedures set forth in 5 Section XIV below. 6 7 8 9 10. This Consent Decree is not, and shall not be construed to be, a permit issued pursuant to any law. 11. Where any portion of the activities undertaken pursuant to this Consent Decree requires a federal, state or local permit or approval, Defendant 10 shall submit timely and complete applications and take all other actions necessary 11 to obtain such permits or approvals. The Defendant may seek relief under the 12 provisions of Section XVI (Force Majeure) of this Consent Decree for any delay 13 in the performance of the Project resulting from a failure to obtain, or a delay in 14 obtaining, any permit required for the Project. 15 12. The Plaintiffs do not, by their consent to the entry of this Consent 16 Decree, warrant or aver in any manner that Defendant’s compliance with this 17 Consent Decree will result in compliance with CERCLA or any other law. 18 Compliance with this Consent Decree does not diminish or affect Defendant’s 19 responsibility to comply with any applicable federal, state or local law or 20 regulation. The Parties agree that Defendant is responsible for achieving and 21 maintaining complete compliance with all applicable federal, state and local laws, 22 regulations and permits. VII. PROJECT DEVELOPMENT 23 24 25 13. Defendant shall finance and construct the Project and shall perform any additional activities in accordance with the terms set out in Appendix A. 26 27 28 CONSENT DECREE -11- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 2 3 Initial Design and Construction Activities 14. Construction Schedule and Contingencies. a. After completion of necessary design work as described in 4 Appendix A, and after EPA’s and the Trustees’ approval in writing of such final 5 design work, Defendant shall commence construction on the Project within ninety 6 (90) days (subject to the in-water construction work windows) of receiving 7 written authorization from the Trustees. The Trustees’ written authorization will 8 be provided after: (1) the Trustees verify that the United States Environmental 9 Protection Agency (EPA) has reviewed and approved Defendant’s work plan as 10 appropriate and consistent with Defendant’s DSOA Work as defined in Paragraph 11 4(g) and Defendant’s work as one of the Respondents to EPA’s LDW SF Site 12 remedial investigation/feasibility study (RI/FS) Order, Docket No. CERCLA-10- 13 2001-0055, and any response action decisions for the LDW SF Site that EPA may 14 have made, or may or expects to make, that may affect the Project; and (2) other 15 reviews and determinations by the Trustees, including but not limited to those 16 identified in the Scope of Work in Appendix A. 17 b. If Defendant has not completed construction of the Project 18 prior to December 31, 2014, then Defendant shall either (i) pay to the Trustees the 19 sum of $250,000 as compensation for the additional delay in restoration of natural 20 resources, or (ii) perform additional restoration work outside of the Project Site 21 agreed upon in writing by Defendant and the Trustees. For each subsequent year 22 in which Defendant has not completed construction of the Project prior to 23 December 31, Defendant shall either (i) pay to the Trustees the sum of $250,000 24 as compensation for the additional delay in restoration of natural resources, or (ii) 25 perform additional restoration work outside of the Project Site agreed upon in 26 writing by Defendant and the Trustees. Defendant’s obligations under this 27 28 CONSENT DECREE -12- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 subparagraph are in addition to any other obligations or applicable penalties under 2 this Decree and are not subject to the provisions of Section XVI (Force Majeure). 3 c. If Defendant has not received from the Trustees written 4 authorization to commence construction pursuant to Paragraph 14(a) by 5 December 31, 2017, then the following contingency measures become applicable: (i) 6 The Trustees may request in writing that Defendant 7 finance and construct a project or projects other than the Project described in 8 Appendix A, but which in the opinion of the Trustees is equivalent with respect to 9 ecological function, size, configuration and location as the Project. If Defendant 10 and Trustees are able to reach an agreement, the Parties may amend this Consent 11 Decree to substitute a new project or projects for the Project described in 12 Appendix A. (ii) 13 If the Trustees request a substitute project or projects 14 under the terms of Paragraph 14(c)(i), and the Trustees and Defendant are unable 15 to agree upon a substitute project or project, then the Trustees or Defendant may 16 send written notice that a final impasse among the parties has been reached. In 17 that event, this Consent Decree (including but not limited to the provisions of 18 Section XVIII (Plaintiffs’ Covenant Not To Sue), Section XX (Defendant’s 19 Covenant Not To Sue), and Section XXI (Effect Of Settlement; Contribution 20 Protection)) shall become null and void, and Defendant shall have no further 21 obligations to the Trustees under this Consent Decree; except, however, that in 22 this event, the provisions of Paragraph 14(c)(iii) shall then become applicable and 23 shall be the only provisions of this Consent Decree that remain in effect. (iii) 24 In the event that a final impasse is reached under the 25 provisions of Paragraph 14(c)(ii), the provisions in this Paragraph 14(c)(iii) shall 26 become applicable and shall survive the termination of the Consent Decree. The 27 Trustees shall have no obligation to refund any monies that have been paid or 28 CONSENT DECREE -13- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 expended by Defendant pursuant to this Decree (including but not limited to 2 monies paid pursuant to Section VII (Project Development), Section X 3 (Reimbursement of Restoration Implementation Costs), Section XI 4 (Reimbursement of Past Costs), and Section XV (Stipulated Penalties)), nor shall 5 Defendant have any right to request or receive any refunds or reimbursements of 6 any such monies. In consideration for monies paid by Defendant pursuant to this 7 Consent Decree that are not refunded, Plaintiffs covenant not to seek, in any 8 future proceeding against Defendant for natural resource damages in the Lower 9 Duwamish Waterway or Elliott Bay, natural resource damage assessment costs or 10 other costs incurred on or before the last Billing Date that have been paid by 11 Defendant pursuant to Paragraph 30 (Reimbursement of Restoration 12 Implementation Costs). 13 (iv) 14 15 The provisions of Paragraph 14(c) are not subject to the provisions of Section XIV (Dispute Resolution) of the Consent Decree. 15. Within 60 days after completion of construction of the Project, 16 Defendant shall submit a written Notice of Completion to the Trustees. The 17 Trustees shall review the course and results of the development of the Project to 18 determine whether the Project has been completed in accordance with Appendix 19 A. Within 60 days after receiving the Notice of Completion, the Trustees shall 20 submit to Defendant either (a) a written notice identifying specific deficiencies 21 the Trustees determine must be satisfied for the Project to be completed in 22 accordance with Appendix A (Notice of Deficiencies); or (b) a written notice of 23 the Trustees’ determination that the Project has been so completed (Notice of 24 Approval of Completion). The date of the Trustees’ Notice of Approval of 25 Completion shall constitute the “Construction Completion Date.” Following 26 receipt of a Notice of Deficiencies, Defendant shall correct the identified 27 deficiencies and complete the Project in accordance with Appendix A, and submit 28 CONSENT DECREE -14- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 to the Trustees an amended Notice of Completion for review and response in 2 accordance with this Paragraph. Any delay in completing Project construction as 3 a result of the operation of this Paragraph shall not in and of itself constitute 4 grounds for relief from the requirement to pay stipulated penalties under Section 5 XV for compliance delays. 6 16. In order to ensure permanent preservation of the Project Site and its 7 associated ecological values, within sixty (60) days of the Construction 8 Completion Date, Defendant will record, enter into agreements, or otherwise take 9 appropriate actions with respect to the Project Site, including its property and 10 property owned by the Port of Seattle, to effectuate the provisions set forth in 11 Appendix B. 12 Development and Monitoring of Vegetation and Habitat 13 17. Defendant shall develop and monitor vegetation and habitat for a 14 period of ten years from the Construction Completion Date, as more fully 15 described in Appendix A. Upon completion of the ten-year period, Defendant 16 shall provide written Notice of Completion of Vegetation and Habitat 17 Development And Monitoring Obligations to Trustees in accordance with Section 18 XXIII (Notices and Submissions). Within 45 days after receiving the Notice of 19 Completion of Vegetation and Habitat Development And Monitoring Obligations, 20 the Trustees shall submit to Defendant either (a) a written notice identifying 21 specific deficiencies the Trustees determine must be satisfied for the vegetation 22 and habitat development and monitoring obligations to be completed in 23 accordance with Appendix A (Notice of Deficiencies); or (b) a written notice of 24 the Trustees’ determination that the vegetation and habitat development and 25 monitoring obligations are completed (Approval of Completion of Vegetation and 26 Habitat Development And Monitoring Obligations). The date of the Trustees’ 27 Approval of Completion of Vegetation and Habitat Development And Monitoring 28 CONSENT DECREE -15- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Obligations shall constitute the “Vegetation and Habitat Development and 2 Monitoring Completion Date.” 3 Continued Maintenance of Developed Vegetation and Habitat 4 18. Defendant shall be responsible for maintaining vegetation and other 5 habitat attributes, for controlling invasive vegetation and debris removal, and for 6 undertaking corrective actions for any perturbation that affects the ecological 7 integrity of the Project. The Parties’ intention is that the ecological functions 8 provided by the habitat projects be maintained in perpetuity. For purposes of this 9 Decree, Boeing’s responsibility for active maintenance and corrective action shall 10 extend thirty (30) years from the Construction Completion Date, or sooner if a 11 “force majeure” event makes further maintenance impossible. Perturbations 12 include events with a foreseeable probability of occurrence (such as, for example, 13 the beaching of an abandoned barge) but do not include “force majeure” events. 14 After the Construction Completion Date, Defendant shall not be responsible for 15 repairs or corrective actions to the Project required due to any “force majeure” 16 events. 17 19. Defendant shall provide for continued maintenance and corrective 18 actions in accordance with Paragraph 18, whether Defendant owns the Project 19 Site or transfers ownership of the Project Site. The Trustees recognize that the 20 Project Site may include property that is owned by other parties including, but not 21 limited to, the Port of Seattle. Defendant recognizes that it is solely responsible 22 for securing the cooperation of other property owners, including but not limited to 23 the Port of Seattle, in order to successfully complete and maintain the project in 24 accordance with Appendix A. Any failure by Defendant to successfully complete 25 or maintain the project in accordance with Appendix A resulting from disputes 26 with other property owners, including but not limited to the Port of Seattle, shall 27 not constitute a “force majeure” event. 28 CONSENT DECREE -16- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 2 Transfer of Project Site for Permanent Stewardship 20. Within sixty (60) days of the Construction Completion Date, 3 Defendant shall ensure, both with respect to the portion of property it owns within 4 the Project Site and with respect to the portion of the Project Site owned by the 5 Port of Seattle, that the property will not be used in a manner inconsistent with 6 the requirements of this Consent Decree. In Defendant’s sole discretion, it may 7 elect to transfer ownership of the portion of the Project Site it owns to an entity to 8 be identified by the Plaintiffs. If transfer of ownership of Defendant’s property 9 occurs prior to the expiration of Defendant’s obligations in Paragraph 18, such 10 transfer shall not affect or lessen Defendant’s obligations under that Paragraph, 11 and the entity to which any property is transferred shall provide Defendant with 12 all access necessary to fulfill Defendant’s responsibilities under Paragraph 18. 13 General Project Development Provisions 14 15 16 21. Defendant shall avoid taking any action that is inconsistent with this Consent Decree and that would adversely affect the Project. 22. Defendant shall undertake all activities required to address cultural 17 resource issues associated with the Project, including, as applicable, consultation 18 with tribes and the Washington State Department of Archaeology and Historic 19 Preservation, conducting a background and project review by an archaeologist 20 who meets the Department of Interior’s professional qualification standards at 36 21 C.F.R. Part 61, conducting cultural resource surveys or monitoring activities. 22 23. If Defendant determines that the Project will become cost-prohibitive 23 or if there is some other significant problem that will prevent the Project from 24 being constructed as designed, other than delay in obtaining EPA approval as set 25 forth in Paragraph 14(a), then the following contingency measures become 26 applicable: 27 28 CONSENT DECREE -17- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 a. Defendant may propose a project or projects other than the 2 Project described in Appendix A, but which is equivalent with respect to 3 ecological function, size, configuration and location as the Project. Such 4 substitute project shall be subject to approval and acceptance by the Trustees. If 5 Defendant and Trustees are able to reach an agreement, the Parties may amend 6 this Consent Decree to substitute a new project or projects for the Project 7 described in Appendix A. 8 b. If Defendant requests a substitute project or projects under the 9 terms of Paragraph 23(a) and the Trustees and Defendant are unable to agree 10 upon a substitute project or project, then the Trustees or Defendant may send 11 written notice that a final impasse among the parties has been reached. In that 12 event, this Consent Decree (including but not limited to the provisions of Section 13 XVIII (Plaintiffs’ Covenant Not To Sue), Section XX (Defendant’s Covenant Not 14 To Sue), and Section XXI (Effect Of Settlement; Contribution Protection)) shall 15 become null and void, and Defendant shall have no further obligations to the 16 Trustees under this Consent Decree; except, however, that in this event, the 17 provisions of Paragraph 23(c) shall then become applicable and shall be the only 18 provisions of this Consent Decree that remain in effect. 19 c. In the event that a final impasse is reached under the 20 provisions of Paragraph 23(b), the provisions in this Paragraph 23(c) shall 21 become applicable and shall survive the termination of the Consent Decree. The 22 Trustees shall have no obligation to refund any monies that have been paid or 23 expended by Defendant pursuant to this Decree (including but not limited to 24 monies paid pursuant to Section VII (Project Development), Section X 25 (Reimbursement of Restoration Implementation Costs), Section XI 26 (Reimbursement of Past Costs), and Section XV (Stipulated Penalties)), nor shall 27 Defendant have any right to request or receive any refunds or reimbursements of 28 CONSENT DECREE -18- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 any such monies. In consideration for monies paid by Defendant pursuant to this 2 Consent Decree that are not refunded, Plaintiffs covenant not to seek, in any 3 future proceeding against Defendant for natural resource damages in the Lower 4 Duwamish Waterway or Elliott Bay, natural resource damage assessment costs or 5 other costs incurred on or before the last Billing Date that have been paid by 6 Defendant pursuant to Paragraph 30 (Reimbursement of Restoration 7 Implementation Costs) or Paragraph 31 (Past Cost Reimbursement). d. 8 9 A determination by Defendant under the terms of Paragraph 23 that the Project has become cost-prohibitive or that there is some other 10 significant problem that will prevent the Project as described in Appendix A from 11 being constructed is subject to the provisions of Section XIV (Dispute 12 Resolution). The provisions of Paragraphs 23(b) and 23(c) regarding an impasse 13 between the Defendant and Trustees on a substitute project or projects and 14 regarding monies paid or expended by Defendant shall not be subject to the 15 provisions of Section XIV (Dispute Resolution). 16 24. The Trustees reserve the right to conduct additional work 17 themselves, at their own expense, on the Project Site. If such work is conducted 18 prior to completion of initial construction by Defendant, the Trustees will conduct 19 any such work in a manner that does not hinder Defendant’s timely completion of 20 the Project. Prior to performing additional work pursuant to this Consent Decree, 21 the Trustees shall prepare and provide to Boeing a Health and Safety Plan. In no 22 event shall the Trustees perform any additional work that will interfere with 23 Defendant’s obligations under this Consent Decree or the construction, 24 maintenance, operation, or monitoring of the Project or that otherwise affects the 25 performance criteria of this Consent Decree. 26 VIII. ACCESS TO INFORMATION AND PROJECT SITE 27 28 CONSENT DECREE -19- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 25. To facilitate their oversight responsibilities, the Trustees shall have 2 full access to the Project Site for purposes of inspecting or observing Defendant’s 3 progress in implementing the Project required under this Consent Decree. 4 26. Commencing upon the date of lodging of this Consent Decree, 5 Defendant agrees to provide the Trustees and their contractors access at all 6 reasonable times to the Project Site and to any property under the control of 7 Defendant to which access is required for the oversight or implementation of this 8 Consent Decree. This right of access does not include a right to enter 9 Defendant’s buildings. Where the property to which access is sought is not 10 otherwise open to public access, the Trustees shall give notice prior to access. 11 Each Trustee shall have the authority to enter freely and move about such 12 property at all reasonable times for the purposes of overseeing the requirements 13 of this Consent Decree, including, but not limited to: a. 14 15 Monitoring and assessing progress on the planning, development, maintenance and monitoring of the Projects; 16 b. Verifying any data or information submitted to the Trustees; 17 c Inspecting and copying records, operation logs, contracts or 18 other documents maintained or generated by Defendant or its contractors 19 hereafter retained to perform work undertaken pursuant to this Consent Decree; d. 20 Conducting such tests, investigations or sample collections as 21 deemed necessary to monitor compliance with this Consent Decree, investigate or 22 assess contamination at or near the Project Site, or to assist in further identifying 23 and quantifying natural resource injuries requiring restoration actions and in 24 planning and carrying out further restoration actions. 25 27. Plaintiffs may direct that Defendant use, in a manner consistent with 26 Defendant’s policy on the control of photographic devices, a camera, sound 27 recording device or other type equipment to record the work done under this 28 CONSENT DECREE -20- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Consent Decree or injury to natural resources and provide copies of any such 2 recordings to the Trustees. Defendant may retain a copy of any such photographs 3 or video recordings. Trustees may also use their own camera, sound recording 4 device, or other type equipment to record the work done under this Consent 5 Decree or injury to natural resources. However, unless Defendant consents, 6 during any visit to the Project Site the Trustees may not photograph or otherwise 7 record the interiors of Defendant’s buildings or any of Defendant’s equipment, 8 vehicles, machinery, or other devices that have or may have commercial or 9 defense-related sensitivity. 10 28. Defendant shall have the right to accompany any Trustee or its 11 representative on the property for purposes of security at the Project Site, and 12 Trustees and their representatives shall comply with applicable health and safety 13 precautions and security-related laws. If any Trustee or its representative seeks to 14 perform duties at the Project Site in a manner that is not in compliance with any 15 written Project Site health and safety requirement, plan, or rule, or any applicable 16 federal or state law or promulgated regulation, Defendant may verbally notify 17 such Trustee or representative of the non-compliance and may further notify such 18 Trustee of such non-compliance in writing. Defendant shall not be obligated, 19 pursuant to Section XVII of this Decree, to indemnify anyone for any claims, 20 damages, or injuries caused by a Trustee’s failure to comply with the applicable 21 health and/or safety requirement, rule, plan, law or regulation, where verbal or 22 written notice of such noncompliance was provided by Defendant prior to the 23 performance of actions which caused the claims, damages, or injuries. Defendant 24 further shall have the right (a) to copies of results of all tests or investigations 25 conducted by the Trustees pursuant to this Decree; and (b) to split samples taken 26 by the Trustees pursuant to this Decree. No claim of confidentiality shall be 27 made with respect to any data, including, but not limited to, all sampling, 28 CONSENT DECREE -21- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 analytical, monitoring, hydrogeologic, scientific, chemical, or engineering data, or 2 any other documents or information evidencing conditions at or around the 3 Project Site. IX. SELECTION OF CONTRACTORS 4 5 29. The selection of any contractor hereafter retained by Defendant to 6 perform any of the work required under this Consent Decree shall be subject to 7 Trustee approval. Defendant shall notify the Trustees in writing of the name, title 8 and qualifications of any contractor Defendant proposes to retain, and of any 9 proposed changes in the selection of a contractor. The Trustees will notify 10 Defendant in writing of the approval or disapproval of a proposed contractor. 11 The Trustees’ assent to the proposed selection or change of a contractor may be 12 presumed unless the Trustees notify Defendant in writing of their objection to the 13 proposed selection or change within 30 days of Defendant’s written selection 14 notice. 15 16 X. REIMBURSEMENT OF RESTORATION IMPLEMENTATION COSTS 30. Defendant agrees to reimburse the Trustees’ reasonable costs 17 incurred in implementing and overseeing the Project described in Appendix A to 18 this Consent Decree. The period during which the Trustees will incur 19 implementation costs begins on June 1, 2009 and ends on the ending date of 20 Defendant’s responsibility for active maintenance and corrective action, as set 21 forth in Paragraph 18. Defendant shall reimburse these costs as follows: 22 a. Each year, beginning in 2010, the Trustees shall provide 23 Defendant with an invoice detailing their reasonable costs of implementing and 24 overseeing the Project between June 1 of the prior calendar year and May 31 of 25 the current calendar year. Within sixty (60) days of receipt of the Trustees’ 26 invoice, Defendant shall reimburse the Trustees for those costs. If Defendant 27 believes that any of the Trustees’ invoiced costs are not reasonable, Defendant 28 CONSENT DECREE -22- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 may invoke the Dispute Resolution provisions of Section XIV as to the disputed 2 costs only; any costs for which Defendant does not invoke Dispute Resolution 3 shall be paid within sixty (60) days of receipt of the Trustees’ invoice. 4 b. At any time after receipt by Defendant of authorization by the 5 Trustees to begin construction of the project pursuant to Paragraph 14(a), the 6 Trustees and Defendant will seek to negotiate a lump-sum payment by Defendant 7 to the Trustees for the remainder of the Trustees’ anticipated implementation 8 costs. If Defendant and the Trustees reach agreement on a lump-sum payment, 9 then Defendant’s obligations to make annual payments of the Trustees reasonable 10 implementation and oversight costs pursuant to Paragraph 30(a) shall be fully and 11 finally satisfied upon receipt by the Trustees of Defendant’s lump-sum payment. 12 Such a lump-sum payment shall be made as follows: The Trustees shall petition 13 the Court to establish the Lower Duwamish Waterway Implementation Account 14 for use as the Trustees shall determine, in accordance with the terms of this 15 Consent Decree and other applicable law, to fund the Trustees’ implementation 16 and oversight of the Project. Payment shall be deposited with the Registry of the 17 Court by EFT if the Registry of the Court accepts payment in that form, and if 18 not, by certified check, bearing the notation “The Boeing Company – 19 Implementation Account” and the civil action number assigned to this Consent 20 Decree, made payable and addressed as follows: 21 22 23 Payee: Address: Clerk of the Court Clerk, U.S. District CourtU.S. Courthouse 700 Stewart Street Seattle, WA 98101 Memo: For Deposit into the Lower Duwamish Waterway Implementation Account: [INSERT THIS CASE DOCKET NUMBER] 24 25 26 27 28 CONSENT DECREE -23- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 XI. PAST COST REIMBURSEMENT 1 2 31. Within forty-five (45) days of entry of this Decree, Defendant will 3 pay to the Trustees sums totaling one million nine hundred forty-three thousand 4 one hundred eighty-four dollars and eighty-six cents ($1,943,184.86) in damage 5 assessment costs through May 31, 2009. These sums shall be paid in the 6 following amounts and particulars: 7 Trustee: Amount: National Oceanic and Atmospheric Administration One million six hundred eighty-three thousand two hundred thirtynine dollars and ten cents ($1,683,239.10) Trustee: Amount: U.S. Department of the Interior One hundred eighty-four thousand, five hundred seventeen dollars and fifty-nine cents ($184,517.59) 8 9 10 11 Payments to NOAA and the U.S. Department of the Interior shall be made 12 by FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of Justice 13 account in accordance with current EFT procedures. Payment shall be made in 14 accordance with instructions provided to Defendant by the Financial Litigation 15 Unit of the U S. Attorney’s Office of the Western District of Washington. Any 16 payments received by the Department of Justice after 4:00 p.m. Eastern Standard 17 Time shall be credited on the next business day. Defendant shall provide at least 18 five days notice to the Financial Litigation Unit before making the transfer. 19 Payments to the other Trustees shall be made by certified checks, bearing 20 the notation “The Boeing Company – Lower Duwamish Waterway Assessment 21 Costs” in the amounts indicated and made payable and addressed as follows: 22 23 24 Trustee: Amount: Payee: Address: 25 26 State of Washington Fifty-four thousand two hundred ninety-one dollars and seventeen cents ($54,291.17) State of Washington/Department of Ecology State of Washington Department of Ecology Attention: Fiscal Office P.O. Box 47611 Lacey, WA 98504-7611 27 28 CONSENT DECREE -24- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 2 3 Trustee: Amount: Payee: Address: 4 5 6 32. Suquamish Tribe Twenty-one thousand one hundred thirty-seven dollars ($21,137) Suquamish Tribe Melody Allen Suquamish Tribe Legal Department P.O. Box 498 Suquamish, WA 98392-0498 At the time of each payment Defendant will send notice that payment 7 has been made to the Trustees and DOJ in accordance with Section XXIII 8 (Notices and Submissions). Such notice will reference Lower Duwamish 9 Waterway NRDA, DOJ case number 90-11-3-7227/1, and the civil action number. 10 11 12 XII. FUND FOR PERMANENT STEWARDSHIP OF PROJECT SITE 33. Within forty-five (45) days of receipt from the Trustees of written 13 authorization to commence construction of the Project pursuant to Paragraph 14 14(a), Defendant shall make a payment in the total amount of three hundred sixty 15 thousand dollars ($360,000) to fund permanent stewardship of the Project. Prior 16 to authorizing commencement of construction, the Trustees shall petition the 17 Court to establish the Lower Duwamish Waterway Stewardship Account for use 18 as the Trustees shall determine, in accordance with the terms of this Consent 19 Decree and other applicable law, to permanently maintain and manage the project 20 sites, including protection of their ecological values. Payment shall be deposited 21 with the Registry of the Court by EFT if the Registry of the Court accepts 22 payment in that form, and if not, by certified check, bearing the notation “The 23 Boeing Company – Stewardship Account” and the civil action number assigned to 24 this Consent Decree, made payable and addressed as follows: 25 Payee: Address: 26 27 Clerk of the Court Clerk, U.S. District Court U.S. Courthouse 700 Stewart Street Seattle, WA 98101 28 CONSENT DECREE -25- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 2 3 4 5 6 7 8 9 Memo: Defendant shall send photocopies of each check and any transmittal letter to: Chief; Environmental Enforcement Section, Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington, D.C. 20044; and to Laurie Lee, NOAA Office of General Counsel, 501 W. Ocean Blvd., Suite 4470, Long Beach, CA, 90802. Any funds paid pursuant to this Paragraph that are not utilized by the Trustees to fund permanent stewardship of the project sites may be applied by the Trustees toward one or more additional habitat restoration projects in the Lower Duwamish Waterway. 10 11 12 13 14 15 16 17 18 For Deposit into the Lower Duwamish Waterway Stewardship Account [INSERT THIS CASE DOCKET NUMBER] XIII. FAILURE TO MAKE TIMELY PAYMENTS 34. If Defendant fails to make any payment under Paragraphs 30, 31, or 33 by the required due date, interest shall be assessed at the rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on October 1 of each year in accordance with 42 U S.C. § 9607(a). The applicable rate of interest is the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year. Interest on late payments shall accrue beginning on the date of entry of the Consent Decree through the date on which the payment is made. 19 20 21 22 23 24 25 26 27 XIV. DISPUTE RESOLUTION 35. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Decree. 36. Any dispute which arises under or with respect to this Consent Decree shall in the first instance be the subject of informal negotiations between the Trustees and Defendant. The period for informal negotiations shall not exceed twenty-one (21) days from the time the dispute arises, unless the parties to the dispute agree otherwise in writing. The dispute shall be considered to have arisen 28 CONSENT DECREE -26- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 when the Trustees send Defendant a written notice specifying the nature of the 2 dispute and requested relief (“Notice of Dispute”) or Defendant sends the Trustees 3 a written Notice of Dispute. 4 37. a. If the Parties cannot resolve a dispute by informal negotiations 5 under the preceding Paragraph, then the position advanced by the Trustees shall 6 be considered binding unless, within twenty-one (21) days after the conclusion of 7 the informal negotiation period, Defendant invokes the formal dispute resolution 8 procedures of this Section by serving on the Trustees a written Statement of 9 Position on the matter in dispute, including, but not necessarily limited to, any 10 factual data, analysis or opinion supporting that position and any supporting 11 documentation relied upon by Defendant. 12 b. Within twenty-one (21) days after receipt of Defendant’s 13 Statement of Position, the Trustees shall serve on Defendant their written 14 Statement of Position, including, but not necessarily limited to, any factual data, 15 analysis or opinion supporting that position and all supporting documentation 16 relied upon by the Trustees. 17 c. An administrative record of the dispute shall be maintained by 18 the Trustees and shall contain all Statements of Position, including supporting 19 documentation, submitted pursuant to this Section. 20 d. The Defendant and the Trustees each shall identify a Formal 21 Dispute Resolution Representative, who shall meet to discuss the matter in dispute 22 at the earliest available opportunity and who will meet and work in good faith to 23 resolve the matter in dispute. If the Parties fail to resolve the dispute within 24 twenty-one (21) days after the initial meeting of the Formal Dispute Resolution 25 Representatives, then the position advanced by the Trustees in their Statement of 26 Position shall be considered binding upon Defendant, subject to any agreements 27 the Formal Dispute Resolution Representatives may have reached on one or more 28 CONSENT DECREE -27- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 issues. In such event, the Trustees shall within five (5) days of the conclusion of 2 the formal dispute resolution process notify Defendant in writing that the formal 3 dispute resolution process has concluded. Defendant may seek judicial review of 4 the Trustees’ Statement of Position (as modified by any agreements the Formal 5 Dispute Resolution Representatives may have reached) pursuant to the following 6 Subparagraph. 7 e. Any matter in dispute shall be reviewable by this Court, 8 provided that a motion for judicial review of the decision is filed by Defendant 9 with the Court and served on all Parties within twenty-one (21) days of receipt of 10 the Trustees’ letter notifying Defendant of the conclusion of the formal dispute 11 resolution process. The motion shall include a description of the matter in dispute 12 (including both Statements of Position), the efforts of the parties to resolve the 13 dispute, the relief requested, and the schedule, if any, within which the dispute 14 must be resolved to ensure orderly implementation of this Consent Decree. The 15 Parties shall jointly move the Court to establish a schedule under which the 16 Plaintiffs file a response to Defendant’s motion within twenty-one (21) days of 17 receipt of the motion, and Defendant file a reply brief within five (5) business 18 days of receipt of the response. If the Court does not grant the motion for such a 19 schedule, then the Parties shall file the response and reply in accordance with the 20 schedule set forth in the Local Rules for the Western District of Washington. 21 f. The Court may rule based on the administrative record, with or 22 without oral argument, and shall review Trustees’ Statement of Position or its 23 resolution of the dispute under the standards of Administrative Procedures Act. 24 g. The foregoing notwithstanding, the Parties acknowledge that 25 disputes may arise that require resolution on an expedited basis. In such cases, the 26 Parties shall agree on an expedited schedule or, absent prompt agreement, either 27 28 CONSENT DECREE -28- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Defendant or the Trustees may petition the Court for the imposition of an 2 expedited schedule. 3 38. The invocation of formal dispute resolution procedures under this 4 Section shall not extend, postpone, or affect in any way any obligation of the 5 Defendant under this Consent Decree, not directly in dispute, unless the Trustees 6 or the Court agree otherwise. Stipulated penalties with respect to the disputed 7 matter shall continue to accrue, but payment otherwise required under Section XV 8 shall be stayed pending resolution of the dispute. Notwithstanding the stay of 9 payment, stipulated penalties shall continue to accrue from the first day of 10 noncompliance with any applicable provision of this Consent Decree. In the event 11 that the Defendant does not prevail on the disputed issue, stipulated penalties shall 12 be assessed and paid as provided in Section XV (Stipulated Penalties). XV. STIPULATED PENALTIES 13 14 39. The Parties stipulate that the time period for implementing the 15 Project is a significant factor in the settlement reached in this Decree and that 16 delay in carrying out the activities required in this Decree may diminish the 17 compensatory value attributable to those activities. Consequently, in the event 18 that Defendant fails to meet a requirement in this Decree (subject to any 19 modifications agreed to under Section XXVII) and any delay is not excused 20 through operation of the provisions of Section XVI (Force Majeure), Defendant 21 shall, as a stipulated penalty, increase the financial contributions it makes under 22 this Consent Decree to fund habitat restoration actions, over and above any 23 payments required elsewhere under this Consent Decree, as follows: 24 a. For each week Defendant fails to comply with any requirement 25 in the Decree, Defendant shall pay a stipulated penalty in the amount of $1,000. 26 Where the delay extends beyond the second week, the stipulated penalty shall 27 apply to each additional day of delay for each such missed requirement. For 28 CONSENT DECREE -29- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 purposes of this Subparagraph, a week shall equal a continuous period of seven 2 days. Nothing in this Decree prevents the simultaneous accrual of separate 3 penalties for separate violations of this Decree. 4 b. All penalties shall begin to accrue on the day after the 5 complete performance is due or the day a violation occurs, and shall continue to 6 accrue through the final day of the correction of the noncompliance or completion 7 of the activity. Following the Trustees’ determination that Defendant has failed 8 to comply with a requirement of this Consent Decree, the Trustees may give 9 Defendant written notification of the same and describe the noncompliance. The 10 Trustees may send the Defendant a written demand for the payment of the 11 penalties. However, penalties shall accrue as provided in the preceding Paragraph 12 regardless of whether the Trustees have notified Defendant of a violation. 13 c. All payments to the Trustees under this Paragraph will be 14 deposited with the Registry of the Court by EFT if the Registry of the Court 15 accepts payment in that form, and if not, by certified check. This payment will be 16 deposited in the Lower Duwamish Waterway Account. At the time of each 17 payment, Defendant will send notice that payment has been made to the Trustees 18 and DOJ in accordance with Section XXIII (Notices and Submissions). This 19 notice will reference Lower Duwamish Waterway NRDA, DOJ Case Number 90- 20 11-3-07227/1, and the civil action number. 21 d. All penalties accruing under this Section shall be due and 22 payable within 30 days of the Defendant’s receipt from the Trustees of a demand 23 for payment of the penalties, unless Defendant invokes the Dispute Resolution 24 procedures under Section XIV (Dispute Resolution). 25 e. Defendant may dispute the Trustees’ right to the penalties 26 identified under Subparagraph a above by invoking the procedures of Section XIV 27 (Dispute Resolution). 28 CONSENT DECREE -30- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 2 3 4 The payment of penalties shall not alter in any way Defendant’s obligation to complete the performance of the Work required under this Consent Decree. 40. Penalties shall continue to accrue as provided in Paragraph 39(b) during any dispute resolution period, but need not be paid until the following: a. 5 If the dispute is resolved by agreement or by a decision of the 6 Trustees that is not appealed to this Court, accrued penalties determined to be 7 owing shall be paid to the Trustees within 15 days of the agreement or the receipt 8 of the Trustees’ decision or order; b. 9 If the dispute is appealed to this Court and the Trustees prevail 10 in whole or in part, Defendant shall pay all accrued penalties determined by the 11 Court to be owed to the Trustees within 60 days of receipt of the Court’s decision 12 or order, except as provided in Subparagraph c below; c. 13 If the District Court’s decision is appealed by any Party, 14 Defendant shall pay all accrued penalties determined by the District Court to be 15 owing to the Trustees into an interest-bearing escrow account within 60 days of 16 receipt of the Court’s decision or order. Penalties shall be paid into this account 17 as they continue to accrue, at least every 60 days. Within 15 days of receipt of the 18 final appellate court decision, the escrow agent shall pay the balance of the 19 account to the Trustees or to Defendant to the extent that they prevail. 20 41. If Defendant fails to pay stipulated penalties when due, the Trustees 21 may institute proceedings to collect the penalties, as well as interest. Defendant 22 shall pay Interest on the unpaid balance, which shall begin to accrue on the date of 23 demand made pursuant to Paragraph 39(d). 24 42. If the Trustees bring a motion or a separate action in court to enforce 25 this Decree and prevail, the Trustees shall be entitled to recover from the 26 Defendant their reasonable costs of such motion or action, including but not 27 limited to costs of attorney time. 28 CONSENT DECREE -31- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 43. Payments made under this Section are in addition to any other 2 remedies or sanctions available to Plaintiffs by virtue of Defendant’s failure to 3 comply with the requirements of this Decree. 4 44. Notwithstanding any other provision of this Section, Plaintiffs may, 5 in their unreviewable discretion, waive payment of any portion of the stipulated 6 penalties that have accrued pursuant to this Decree. Payment of stipulated 7 penalties does not excuse Defendant from payment as required by Sections VII, X, 8 XI, or XII or from performance of any other requirement of this Consent Decree. 9 45. The Trustees may use sums paid as stipulated penalties under 10 Paragraph 39 to pay unreimbursed damage assessment costs and to fund or 11 contribute to additional actions to restore Lower Duwamish Waterway natural 12 resources. XVI. FORCE MAJEURE 13 14 46. “Force majeure,” for purposes of this Consent Decree, is defined as 15 any event arising from causes beyond the control of Defendant (including 16 Defendant’s contractors and sub-contractors, and any other entity controlled by 17 Defendant) that delays or prevents the performance of any obligation under this 18 Consent Decree despite Defendant’s best efforts to fulfill the obligation. The 19 requirement that Defendant exercises “best efforts to fulfill the obligation” 20 includes using best efforts to anticipate any potential force majeure event and use 21 best efforts to address the effects of any potential force majeure event (1) as it is 22 occurring and (2) following the potential force majeure event, such that the delay 23 is minimized to the greatest extent possible. “Force majeure” does not include 24 financial inability to fulfill the obligation. The requirement that Defendant 25 exercises “best efforts to fulfill the obligation” also includes, where necessary, the 26 filing of legal actions to compel contract performance in accordance with the 27 design and schedule approved by the Trustees herein. 28 CONSENT DECREE -32- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 47. a. If any event occurs or has occurred that may delay the 2 performance of any obligation under this Consent Decree, whether or not caused 3 by a force majeure event, Defendant shall notify the Trustees within 14 days of 4 when Defendant first knew that the event might cause a delay. Within 30 days 5 thereafter, Defendant shall provide a written explanation and description of the 6 reasons for the delay; the anticipated duration of the delay; all actions taken or to 7 be taken to prevent or minimize the delay; a schedule for implementation of any 8 measures to be taken to prevent or mitigate the delay or the effect of the delay; 9 and the rationale for attributing such delay to a force majeure event (if Defendant 10 intends to assert such a claim). Defendant shall include with any notice all 11 available documentation supporting its claim that the delay was attributable to a 12 force majeure event. Failure to comply with the above requirements will preclude 13 Defendant from asserting any claim of force majeure for that event. 14 b. If the Trustees agree that the delay or anticipated delay is 15 attributable to a force majeure event, the time for performance of the obligations 16 under this Consent Decree that are affected by the force majeure event will be 17 extended by the Trustees for such time as is necessary. An extension of the time 18 for performance of the obligations affected by the force majeure event shall not, of 19 itself, extend the time for performance of any other obligation. If the Trustees do 20 not agree that the delay or anticipated delay has been or will be caused by a force 21 majeure event, the Trustees will notify Defendant in writing of their decision. 22 c. If Defendant elects to invoke the dispute resolution procedures 23 set forth in Section XIV, above, regarding a claimed force majeure event it shall 24 do so no later than 30 days after receipt of the Trustees’ notice of disagreement. 25 In any such proceeding Defendant shall have the burden of demonstrating by a 26 preponderance of the evidence that the delay or anticipated delay has been or will 27 likely be caused by a force majeure event, that the duration of the delay or the 28 CONSENT DECREE -33- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 extension sought was or will be warranted under the circumstances, that 2 Defendant exercised best efforts to fulfill the obligation in question, that best 3 efforts were exercised to avoid and mitigate the effects of the delay, and that 4 Defendant complied with the requirements of this Paragraph. If Defendant carries 5 this burden, the delay at issue shall be deemed not to be a violation by Defendant 6 of the affected obligation of this Consent Decree. XVII. INDEMNIFICATION; INSURANCE 7 8 9 48. a. Plaintiffs do not assume any liability by entering into this Consent Decree. Defendant shall indemnify and hold harmless each of the 10 Plaintiffs and/or their agents, employees and representatives from any and all 11 damage claims or causes of action arising from negligent or other wrongful acts or 12 omissions of Defendant and/or its officers, employees, agents, contractors, 13 subcontractors, representatives and any persons acting on its behalf or under its 14 control in carrying out activities pursuant to this Consent Decree. Further, 15 Defendant agrees to pay the Plaintiffs all reasonable costs they incur, including 16 but not limited to attorneys fees and other expenses of litigation and settlement, 17 arising from or on account of claims made against the Plaintiffs based on 18 negligent or other wrongful acts or omissions of Defendant or its officers, 19 employees, agents, contractors, subcontractors, representatives and any persons 20 acting on its behalf or under its control, in carrying out activities pursuant to this 21 Consent Decree. None of the Plaintiffs shall be held out as a party to any contract 22 entered into by or on behalf of Defendant in carrying out activities pursuant to this 23 Consent Decree. Neither Defendant nor any contractor or representative of 24 Defendant shall be considered an agent of any Plaintiff, and Defendant shall 25 require any contractor hereafter retained by Defendant who performs work for 26 Defendant in carrying out activities pursuant to this Consent Decree to 27 affirmatively acknowledge that it is not acting as an agent of any Plaintiff. 28 CONSENT DECREE -34- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 b. 1 Plaintiffs shall give Defendant written notice of any claim for 2 which one or more Plaintiff plans to seek indemnification pursuant to Paragraph 3 48(a), and shall consult with Defendant (including, but not limited to, responding 4 to Defendant’s reasonable requests for information regarding any proposed 5 settlement of that claim) prior to settling such claim. 6 49. Defendant waives all claims against Plaintiffs for damages or 7 reimbursement or for set-off of any payments made or to be made to Plaintiffs, 8 arising from or on account of any contract, agreement, or arrangement between 9 Defendant and any person for performance of activities pursuant to this Consent 10 Decree, including, but not limited to, claims on account of construction delays. In 11 addition, Defendant shall indemnify and hold harmless Plaintiffs with respect to 12 any and all claims for damages or reimbursement arising from or on account of 13 any contract, agreement, or arrangement between any Defendant and any person 14 for performance of activities pursuant to this Consent Decree, including, but not 15 limited to, claims on account of construction delays. 16 50. No later than 15 days before commencing any work on the Project 17 Site, Defendant shall cause to be maintained comprehensive general liability 18 insurance and automobile liability insurance with limits of $10,000,000 (ten 19 million dollars), combined single limit. The Trustees shall be named additional 20 insureds on any such policies with respect to all liability arising out of the 21 activities performed by or on behalf of Defendant pursuant to this Consent 22 Decree. In addition, for the duration of this Consent Decree Defendant shall 23 satisfy, or shall ensure that their contractors or subcontractors satisfy, all 24 applicable laws and regulations regarding the provision of worker’s compensation 25 insurance for all persons performing any work involved in implementing this 26 Consent Decree. No later than 15 days before commencing any work involved in 27 implementing this Consent Decree, Defendant shall provide to the Trustees 28 CONSENT DECREE -35- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 certificates of such insurance. Upon request, the United States Department of 2 Justice may examine any such insurance policies at Defendant’s corporate 3 headquarters in Chicago, Illinois, for the limited purpose of verifying that such 4 insurance policies provide the coverage required by this Consent Decree. The 5 Department of Justice will not copy the insurance policies during its review; 6 however, in the event of a dispute regarding the adequacy of such insurance 7 policies, Defendant will provide a confidential copy of the disputed policies to the 8 Court and to the Department of Justice. Following the resolution of any such 9 dispute, the copies provided will be destroyed or returned to Defendant. 10 Defendant shall resubmit such certificates each year on the anniversary of the 11 effective date of this Consent Decree. If Defendant demonstrates by evidence 12 satisfactory to the Trustees that any contractor or subcontractor maintains 13 insurance equivalent to that described above, or insurance covering the same risks 14 but in a lesser amount, then, with respect to that contractor or subcontractor, 15 Defendant need provide only that portion of the insurance described above that is 16 not maintained by the contractor or subcontractor. XVIII. COVENANT NOT TO SUE BY PLAINTIFFS 17 18 51. Except as specifically provided in Section XIX (Reservations of 19 Rights) below, Plaintiffs covenant not to sue or to take administrative action 20 against Defendant pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a); 21 Chapter 70.l05D RCW; Section 311 of the Clean Water Act (CWA), 33 U.S.C. § 22 1321; or Section 1002(a) of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. § 23 2702(a), to recover Covered Natural Resource Damages. This covenant not to sue 24 will take effect upon Defendant’s complete payment of costs pursuant to Section 25 X (Reimbursement of Restoration Oversight Costs), Section XI (Reimbursement 26 of Past Costs), and Section XII (Fund for Permanent Stewardship of Project Site) 27 and continue in effect conditioned upon the satisfactory performance by 28 CONSENT DECREE -36- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Defendant of its obligations under this Consent Decree. This covenant not to sue 2 extends only to Defendant and its heirs, successors and assigns, and does not 3 extend to any other person. XIX. RESERVATIONS OF RIGHTS 4 5 52. Plaintiffs reserve, and this Consent Decree is without prejudice to, all 6 rights against Defendant with respect to all matters not expressly included within 7 the Covenant Not to Sue by Plaintiffs in Paragraph 51. Notwithstanding any other 8 provision of this Consent Decree, the Plaintiffs reserve all rights against 9 Defendant with respect to: 10 a. 11 12 liability for costs of response incurred or to be incurred by Plaintiffs under any federal or State statute; b. liability for damages to natural resources (including 13 assessment costs) as defined 42 U.S.C. §§ 9601(6 & 16) that are not expressly 14 included within the Covenant Not to Sue by Plaintiffs in Paragraph 51; 15 c. liability for damages to natural resources (including 16 assessment costs) as defined 42 U.S.C. §§ 9601(6 & 16) within the Lower 17 Duwamish Waterway or Elliott Bay resulting from new releases of Waste Material 18 from Defendant’s operations after the effective date of this Consent Decree, or 19 resulting from the Defendant’s transportation, treatment, storage, or disposal, or 20 the arrangement for the transportation, treatment, storage, or disposal of Waste 21 Material at or in connection with the Site, after signature of this Consent Decree; 22 23 24 d. liability for injunctive relief or administrative order enforcement under any federal or State statute; e. liability for costs incurred or to be incurred by the Agency for 25 Toxic Substances and Disease Registry in or regarding the Lower Duwamish 26 Waterway or Elliott Bay; 27 28 CONSENT DECREE -37- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 f. 1 additional claims for Covered Natural Resource Damages if 2 conditions, factors or information in the Lower Duwamish Waterway or Elliott 3 Bay, not known to the Trustees as of the effective date, are discovered that, 4 together with any other relevant information, indicate that there is a threat to the 5 environment, or injury to, destruction of, or loss of natural resources of a type 6 unknown, or of a magnitude significantly greater than was known, at the time of 7 entry of this Consent Decree, which is attributable to the Defendant (for purposes 8 of this Subparagraph, information known to the Trustees shall consist of any 9 information in the files of, or otherwise in the possession of, any one of the 10 individual Trustees, or their contractors or consultants who worked on the 11 Trustees’ natural resource damages assessment and liability allocation projects); 12 g. criminal liability to the United States or State; and 13 h. claims in this action or in a new action based on a failure of the 14 Defendant to satisfy the requirements of this Consent Decree. XX. COVENANT NOT TO SUE BY DEFENDANT 15 16 53. Defendant covenants not to sue and agrees not to assert any claims or 17 causes of action against the United States, the State, the Suquamish Tribe, and the 18 Muckleshoot Indian Tribe, or their contractors or employees, relating to Covered 19 Natural Resource Damages. Defendant reserves, and this Consent Decree is 20 without prejudice to, all rights with respect to all matters not expressly included 21 within this Covenant Not to Sue, including all rights with respect to all matters 22 reserved in Section XIX. 23 24 XXI. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION 54. Nothing in this Consent Decree shall be construed to create any rights 25 in, or grant any cause of action to, any person not a Party to this Consent Decree. 26 The preceding sentence shall not be construed to waive or nullify any rights that 27 any person not a signatory to this decree may have under applicable law. Each of 28 CONSENT DECREE -38- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 the Parties expressly reserves any and all rights (including, but not limited to, any 2 right to contribution), defenses, claims, demands, and causes of action they each 3 may have with respect to any matter, transaction, or occurrence relating in any 4 way to the Lower Duwamish Waterway against any person not a Party hereto. 5 Nothing in this Consent Decree diminishes the right of the United States, pursuant 6 to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue 7 any such persons to obtain additional relief (including response action, response 8 costs, and natural resource damages) and to enter into settlements that give rise to 9 contribution protection pursuant to Section 113(f)(2). 10 55. The Parties agree, and by entering this Consent Decree this Court 11 finds, that this settlement constitutes a judicially-approved settlement for purposes 12 of Section 113(f)(2), and that Defendant is entitled, as of the effective date of this 13 Consent Decree, to protection from contribution actions or claims as provided by 14 CERCLA Section 1l3(f)(2), 42 U.S.C. § 96l3(f)(2), and RCW 70.105D.040(4)(d), 15 or as may be otherwise provided by law, for Covered Natural Resource Damages; 16 provided, however, that if the Plaintiffs exercise their rights under the reservations 17 in Section XIX, other than in Paragraphs 52(g) (criminal liability) and 52(h) 18 (failure to satisfy a requirement of this Consent Decree), the contribution 19 protection afforded by this Consent Decree will no longer include those matters 20 that are within the scope of the exercised reservation. 21 56. Defendant agrees that it will notify the Trustees and the United States 22 in writing no later than 60 days before bringing a suit or claim for contribution for 23 Covered Natural Resource Damages. Defendant also will notify the Trustees of 24 any settlement of its claims (regardless of whether the claim is filed or unfiled) for 25 contribution for Covered Natural Resource Damages. Defendant also agrees that 26 it will notify the Trustees and the United States in writing within 10 days of 27 service of a complaint or claim upon Defendant relating to a suit or claim for 28 CONSENT DECREE -39- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 contribution for Covered Natural Resource Damages. In addition, Defendant will 2 notify the Trustees and the United States within 10 days of service or receipt of 3 any Motion for Summary Judgment and within 10 days of receipt of any order 4 from a court setting a case for trial for matters related to this Decree. 5 57. In any subsequent administrative or judicial proceeding initiated by 6 the Plaintiffs for injunctive relief, recovery of response costs, or other appropriate 7 relief other than Covered Natural Resource Damages, Defendant shall not assert, 8 nor may it maintain, any defense or claim based upon the principles of waiver, res 9 judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses 10 based upon any contention that the claims raised by the Plaintiffs in the 11 subsequent proceeding were or should have been brought in the instant case; 12 provided, however, that nothing in this Paragraph affects the enforceability of the 13 covenants not to sue set forth in Paragraphs 51 and 53. XXII. RETENTION OF RECORDS 14 15 58. Until 10 years after the Defendant’s receipt of the Trustees’ 16 notification pursuant to Paragraph 15, Defendant shall preserve and retain all non- 17 identical copies of records and documents (including records or documents in 18 electronic form) now in its possession or control or which come into its possession 19 or control that relate in any manner to its liability under CERCLA with respect to 20 the Lower Duwamish Waterway. Defendant must also retain, and instruct its 21 contractors and agents to preserve, for the same period of time specified above all 22 non-identical copies of the last draft or final version of any documents or records 23 (including documents or records in electronic form) now in its possession or 24 control or which come into its possession or control that relate in any manner to 25 the performance of the Project, provided, however, that Defendant (and its 26 contractors and agents) must retain, in addition, copies of all data generated during 27 the performance of the Work and not contained in the aforementioned documents 28 CONSENT DECREE -40- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 required to be retained. Each of the above record retention requirements shall 2 apply regardless of any corporate retention policy to the contrary. 3 59. At the conclusion of this document retention period, Defendant shall 4 notify the Trustees at least 90 days prior to the destruction of any such records or 5 documents, and, upon written request by the Trustees, Defendant shall deliver any 6 such non-privileged records or documents to the Trustees. Defendant may assert 7 that certain documents, records and other information are privileged under the 8 attorney-client privilege or any other privilege recognized by federal law. If 9 Defendant asserts such a privilege, it shall provide the Plaintiffs with the 10 following: (1) the title of the document, record, or information; (2) the date of the 11 document, record, or information; (3) the name and title of the author of the 12 document, record, or information; (4) the name and title of each addressee and 13 recipient; (5) a description of the subject of the document, record, or information; 14 and (6) the privilege asserted by Defendant. However, no documents, reports or 15 other information created or generated pursuant to the requirements of the 16 Consent Decree shall be withheld on the grounds that they are privileged. 17 60. Defendant hereby certifies individually that, to the best of its 18 knowledge and belief, after a reasonable inquiry that fully complies with the 19 Federal Rules of Civil Procedure, it has not altered, mutilated, discarded, 20 destroyed or otherwise disposed of any records, documents or other information 21 (other than identical copies) relating to its potential liability regarding the Site 22 since notification of potential liability by any Trustee. XXIII. NOTICES AND SUBMISSIONS 23 24 61. Whenever notice is required to be given or a document is required to 25 be sent by one Party to another under the terms of this Decree, it will be directed 26 to the individuals at the addresses specified below, unless those individuals or 27 their successors give notice of a change to the other Parties in writing. Written 28 CONSENT DECREE -41- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 notice as specified constitutes complete satisfaction of any written notice 2 requirement of the Decree for Plaintiffs and Defendant 3 As to the United States and as to DOJ: 4 Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 (DJ #90-11-3-07227/1) 5 6 7 8 9 10 11 Michael J. Zevenbergen U.S. Department of Justice c/o NOAA/Damage Assessment 7600 Sand Point Way, NE Seattle, WA 98115 As to NOAA: 13 Laurie Lee NOAA Office of General Counsel 501 W. Ocean Blvd., Suite 4470 Long Beach, CA. 90802 14 As to the United States Department of the Interior: 15 Barry Stein U.S. Department of the Interior Office of the Solicitor 805 S.W. Broadway, Suite 600 Portland, OR 97205 12 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -42- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Jeff Krausmann U.S. Fish & Wildlife Service 510 Desmond Dr. SE, Suite 102 Lacey, WA 98503-1263 As to the State: Craig Thompson Toxics Cleanup Program State of Washington P.O. Box 47600 Olympia, WA 98504-7600 As to the Suquamish Tribe: Melody Allen Suquamish Tribe Legal Department P.O. Box 498 Suquamish, WA 98392-0498 As to the Muckleshoot Indian Tribe: Mr. Rob Otsea Office of the Tribal Attorney Muckleshoot Indian Tribe 39015 172nd Avenue S.E. Auburn, WA 98002 As to Boeing: Steven E. Rusak The Boeing Company MC 7A-XP P.O. Box 3707 Seattle, WA 98124-2207 Mark W. Schneider Perkins Coie LLP 1201 Third Ave., Suite 4800 Seattle, WA 98101-3099 XXIV. EFFECTIVE DATE 22 23 62. The effective date of this Consent Decree shall be the date upon 24 which this Consent Decree is entered by the Court, except as otherwise provided 25 herein. 26 27 28 CONSENT DECREE -43- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 XXV. RETENTION OF JURISDICTION 1 2 63. This Court retains jurisdiction over both the subject matter of this 3 Consent Decree and the Parties for the duration of the performance of the terms 4 and provisions of this Consent Decree for the purpose of enabling any of the 5 Parties to apply to the Court at any time for such further order, direction, and 6 relief as may be necessary or appropriate for the construction or modification of 7 this Consent Decree, or to effectuate or enforce compliance with its terms, or to 8 resolve disputes in accordance with Section XIV (Dispute Resolution) hereof. XXVI. INTEGRATION/APPENDICES 9 10 64. This Decree and its appendices constitute the final, complete, and 11 exclusive agreement and understanding with respect to the settlement embodied in 12 this Decree. The Parties acknowledge that there are no representations, 13 agreements, or understandings relating to the settlement other than those 14 expressly contained in this Decree. The terms “Consent Decree” and “Decree” as 15 used herein include the appendices to this Consent Decree, unless expressly 16 indicated to the contrary. The following appendices are attached to and 17 incorporated into this Consent Decree: 18 Appendix A Boeing Habitat Project Scope of Work 19 Appendix B Project Site deed restrictions XXVII. MODIFICATION 20 21 65. No material modifications shall be made to any requirement under 22 this Consent Decree without written notification to and written approval of the 23 United States Department of Justice and the Trustees, Defendant and the Court. 24 Modifications to this Consent Decree exclusive of the appendices incorporated 25 within that do not materially alter the terms of this Consent Decree may be made 26 by written agreement between the United States Department of Justice, the 27 Trustees and Defendant. Modifications to any of the appendices to this Consent 28 CONSENT DECREE -44- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Decree that do not materially alter any of the terms of this Consent Decree may be 2 made by written agreement between the Trustees and Defendant. XXVIII. ENFORCEMENT 3 4 66. The requirements of this Consent Decree, including but not limited to 5 deadlines, schedules and Project designs, are independently enforceable. Any 6 delay or failure of the Trustees to enforce any requirement will not preclude or 7 prejudice the subsequent enforcement of the same or another requirement. XXIX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 8 9 67. This Decree will be lodged with the Court for a period of not less 10 than 30 days for public notice and comment. The Plaintiffs each reserve the right 11 to withdraw or withhold their consent if the comments regarding the Decree 12 disclose facts or considerations that indicate this Decree is inappropriate, 13 improper, or inadequate. Defendant consents to the entry of this Decree without 14 further notice. 15 68. If for any reason this Court does not approve this Decree in the form 16 presented, this Decree may be voided at the sole discretion of any Party, and the 17 terms of the agreement may not be used as evidence in any litigation among the 18 Parties. XXX. TERMINATION 19 20 69. When all actions required under Section VII have been taken and all 21 payments required under Sections X, XI, and XII have been made, the parties may 22 move to partially terminate this Consent Decree. Notwithstanding the previous 23 sentence, the following provisions of this Decree shall survive any motion for 24 termination: Paragraphs 20 and 21of Section VII; Section VIII (“Access to 25 Information and Project Site”); Section XIV (“Dispute Resolution”); Section 26 XVIII (“Covenant Not to Sue by Plaintiffs”); Section XIX (“Reservations of 27 Rights”); Section XX (“Covenant Not To Sue by Defendant”), Section XXI 28 CONSENT DECREE -45- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 (“Effect of Settlement; Contribution Protection”); and Section XXV (“Retention 2 of Jurisdiction”). XXXI. SIGNATORIES/SERVICE 3 4 70. The Assistant Attorney General for the Environment and Natural 5 Resources Division of the United States Department of Justice and each 6 undersigned representative of the State, the Suquamish Tribe, the Muckleshoot 7 Indian Tribe and Defendant certifies that he or she is authorized to enter into the 8 terms and conditions of this Decree and to execute and bind legally the Party that 9 he or she represents to this document. 10 71. Defendant agrees not to oppose entry of this Decree by this Court or 11 to challenge any provision of this Decree unless any Plaintiff has notified 12 Defendant in writing that it no longer supports entry of the Decree. 13 72. Defendant will identify on the attached signature page the name and 14 address of an agent who is authorized to accept service of process by mail on 15 behalf of it with respect to all matters relating to this Decree. Defendant agrees to 16 accept service in that manner and to waive the formal service requirements set 17 forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local 18 rules of this Court, including but not limited to service of a summons. Defendant 19 need not file an answer to the complaint in this action unless or until the Court 20 expressly declines to enter this Decree. XXXII. FINAL JUDGMENT 21 22 73. Upon approval and entry of this Consent Decree by the Court, this 23 Consent Decree shall constitute a final judgment between and among the United 24 States, the State, the Suquamish Tribe, the Muckleshoot Indian Tribe, and 25 Defendant. The Court finds that there is no just reason for delay and therefore 26 enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. 27 28 CONSENT DECREE -46- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 SO ORDERED THIS 14 DAY OF DECEMBER 2010. 2 3 4 A 5 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -47- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Signature Page for Consent Decree regarding the Lower Duwamish Waterway 2 3 FOR THE UNITED STATES OF AMERICA: 4 5 6 Date: ___________ ___________________________ IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice Washington, D.C. 20530 Date: _____________ ___________________________ MICHAEL J. ZEVENBERGEN Senior Counsel Environmental Enforcement Section Environment & Natural Resources Division U.S. Department of Justice c/o NOAA Damage Assessment 7600 Sand Point Way, NE Seattle, Washington 98115 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -48- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Signature Page for Consent Decree regarding the Lower Duwamish Waterway 2 3 FOR THE BOEING COMPANY: 4 5 6 Date: ___________ ___________________________ STEVEN SHESTAG Director of Enterprise Remediation The Boeing Company Date: _____________ ___________________________ STEVEN E. RUSAK Counsel for Environment, Health and Safety Office of the General Counsel The Boeing Company Date: _____________ ___________________________ MARK W. SCHNEIDER Perkins Coie LLP 1201 Third Ave., Suite 4800 Seattle, WA 98101-3099 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -49- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Signature Page for Consent Decree regarding the Lower Duwamish Waterway 2 3 FOR THE STATE OF WASHINGTON: 4 5 6 Date: ___________ ___________________________ Ted Sturdevant Director Department of Ecology Date: _____________ ___________________________ Nels Johnson Assistant Attorney General State of Washington 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -50- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Signature Page for Consent Decree regarding the Lower Duwamish Waterway 2 3 FOR THE SUQUAMISH TRIBE: 4 5 6 Date: ___________ 7 8 ___________________________ Leonard Forsman Chairman Suquamish Tribe Post Office Box 498 Suquamish, Washington 98392 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -51- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607 1 Signature Page for Consent Decree regarding the Lower Duwamish Waterway 2 3 FOR THE MUCKLESHOOT INDIAN TRIBE: 4 5 6 Date: ___________ 7 8 ___________________________ Charlotte Williams Chairperson Muckleshoot Indian Tribe 39015 172nd Ave. S.E. Auburn, WA 98092-9763 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSENT DECREE -52- U. S. DEPARTMENT OF JUSTICE 7600 Sand Point Way, NE Seattle, WA 98115-0070 (206) 526-6607

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