USA v. Dow Chemical Corporation, The

Filing 7

CONSENT DECREE. by Judge R. Brooke Jackson on 10/31/2013. (trlee, )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.
UNITED STATES OF AMERICA,
Plaintiff,

THE DOW CHEMICAL COMPANY,
Defendant.

CONSENT DECREE

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TABLE OF CONTENTS

I. BACICGROUND...................................................:................................................................1
II. JURTSDTCTION.....................................................................................................................3
III. PARTIES BOUND.................................................................................................................3
IV
V.
VI.
VII.

DEFINITIONS
4
GENERAL PROVISIONS ..........................:...................................:........................................5
PERFORMANCE OF THE WORK BY SETTLING DEFENDANT ........................:......................1 O
REVIEW OF RESPONSE ACTIVITIES ....................................................................................16
VIII. QuA~,rT~ Assu~,NCE,SAMPLING, AND DATA ANALYSIS ...............................................16
IX. ACCESS AND INSTITUTIONAL CONTROLS .........................................................................18
X. REPORTING REQUIREMENTS ............................................................................................20
XI. EPA APPROVAL OF PLANS AND OTF-IER SUBMISSIONS .....................................................22
XII. PROJECT MANAGET2S .......................................................................................................24
XTYT. ASSLJTtANCE OF ABILITY TO COMPLETE WORK ................................................................25
XIV. CF,RTIFICATTON OF COMPLETION .....................................................................................28
XV. EMERGENCY RESPONSE ...................................................................................................29
XVI. PAYMENTS FOR RESPONSE COSTS...................................................................................30
XVII. INDEMNIFICATION AND INSURANCE .................................................................................34
XVIIT. FORCE MAJEURE..................................................................:...........................................36
XIX. DTSPiJTE RESOLUTION......................................................................................................39
XX. STIPULATED PENALTIES...................................................................................................43
XXI. COVENANTS NOT TO SUE BY PLAINTIFF ..........................................................................47
XXTI. COVENANTS BY SETTLING DEFENDANT...........................................................................50
XXITI. EFFECT OP SETTLEMENT; CONTRIBUTION PROTECTION ...................................................52
XXYV. ACCESS TO INFORMATION ................................................................................................53
XXV. RETENTION OF RECORDS .................................................................................................SS
XXVI. NOTICES AND SUBMISSIONS.............................................................................................57
XXVII. EFFECTIVE DATE .............................................................................................................58
XXVIII. RETENTION OF 1URISDICTION ...........................................................................................58
XXIX. APPEI~IDTCES...............................................................................................:.....................59
XXX. COMMUNITY RELATIONS ..........................................................................................:......59
XXXI. MODIFICATION.................................................................................................................59
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT......................................................60
XXXIII. SIGNATO1tIES/SERVICE.....................................................................................................60
XXXIV. FINAL JUDGMENT.............................................................................................................61

Appendices:

A
B
C

Action Memorandum
Site Map
Statement of Work

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I. BACKGROUND

A. The United States of America(United States) filed a Complaint in this matter pursuant to
Sections 106 and 107 ofthe Comprehensive Environmental Response, Compensation, and
Liability Act(CERCLA),42 U.S.C. §§ 9606 and 9607. In its Complaint the United States seeks,
inter alias (1)reimbursement of costs incurred by the U.S. Environmental Protection Agency
(EPA)and the Department of Justice for response actions at the Twins Inn Superfund Site (Site)
in Jefferson County, Colorado together with accrued interest; and (2) performance ofstudies and
response work by the Settling Defendant at the Site consistent with the National Contingency
Plan, 40 C.F.R. Part 300(as amended)(NCP).
B. In accordance with the NCP and Section 121(fl(1)(F) of CERCLA,42 U.S.C.
§ 9621(fl(1)(F), EPA has notified the State of Colorado,(the State) of negotiations with
potentially responsible parties regarding response activities at the Site and this Consent Decree.
C. In accordance with Section 122(j)(1) of CERCLA,42 U.S.C. § 9622(j)(1), EPA notified the
State and Federal Natural Resource Trustees on August 14, 2007, of negotiations with potentially
responsible parties regarding the release of hazardous substances that may have resulted in injury
to the natural resources under State and Federal trusteeship and encouraged the trustees to
participate in negotiation at the Site, including this Consent Decree.
D: Settling Defendant, by entering into this Consent Decree, does not admit any liability to the
United States arising out ofthe transactions or occurrences alleged in the Complaint, nor does it
acknowledge that the release or threatened release of hazardous substances at or from the Site
constitutes an imminent and substantial endangerment to the public health or welfare or the
environment.
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E. In June 2008, the Settling Defendant completed an Engineering Evaluation/Cost Analysis
(EE/CA)for the Site pursuant to the Administrative Order on Consent, to characterize conditions
at the Site, determine the nature and extent of contamination, and evaluate the potential
performance and cost of alternatives for removal actions to prevent, mitigate or otherwise
respond to the release or threatened release of hazardous substances at or from the Site.
F. The EPA gave its approval to Settling Defendant's Final EE/CA Report on January 7, 2011.
On November 9, 2011, the EPA issued the Action Memorandum selecting the Response Action
for the Site. The Response Action provides for monitored natural attenuation of ground water
contamination, in addition to providing an alternative water supply or treatment where shallow
ground water wells are currently used to obtain drinking water, and institutional controls to
restrict the construction of new water wells and the use of ground water until cleanup levels are
achieved.
G..Solely for the purposes of Section 113(j) of CERCLA,the Response Action selected to
continue the initial Site work, described in Attachment A and to be performed by the Settling
Defendant, shall constitute a response action taken or ordered by the President.
H. Based on the information presently available to EPA,EPA believes that the Response
Action recommended in the EE/CA and selected in the Action Memorandum will be properly
and promptly conducted by the Settling Defendant if conducted in accordance with the
requirements of this Consent Decree and its Appendices.
I. The Parties agree, and this Court by entering this Consent Decree finds, that this Consent

'ra

Decree has been negotiated by the Parties in good faith, and implementation ofthis Consent

Decree will avoid prolonged and complicated litigation between the Parties,

will

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expedite clean

up ofthe Site, and that this Consent Decree is fair, reasonable, and in the public interest.
NOW,THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II..TURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.
§§ 1331 and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has personal
jurisdiction over the Settling Defendant. Solely for the purposes ofthis Consent Decree and the
underlying complaint, Settling Defendant waives all objections and defenses that it may have to
jurisdiction ofthe Court or to venue in this District. Settling Defendant shall not challenge the
terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent
Decree.
III. PARTIES BOiJND

2. This Consent Decree applies to and is binding upon the United States and Settling Defendant
and its successors and assigns. Any change in ownership or corporate status of Settling
Defendant including, but not limited to, any transfer of assets or liabilities, or real or personal
properly, shall in no way alter such Settling Defendant's responsibilities under this Consent
Decree.
3. Settling Defendant shall provide a copy ofthis Consent Decree to each contractor hired to
perform the Work, as defined below, required by this Consent Decree and to each person
representing Settling Defendant with respect to the Site or the Work and shall-condition all
contracts entered into hereunder upon performance ofthe Work in conformity with the terms of
this.Consent Decree. Settling Defendant or its contractors) shall provide written notice ofthe
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Consent Decree to all subcontractors hired to perform any portion ofthe Work required by this
Consent Decree. Settling Defendant shall nonetheless be responsible for ensuring that its
contractors) and subcontractors perform the Work contemplated herein in accordance with this
Consent Decree. With regard to the activities undertaken pursuant to this Consent Decree, each
contractor and subcontractor shall be deemed to be in a contractual relationship with the Settling
Defendant within the meaning of Section 107(b)(3) of CERCLA,42 U.S.C. § 9607(b)(3).
IV. DEFINITIONS

4. Unless otherwise expressly provided herein, terms used in this Consent Decree that are
defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning
assigned to them in CERCLA or in such regulations or guidance. Whenever terms listed below
are used in this Consent Decree or in the appendices attached hereto and incorporated hereunder,
the following definitions shall apply:
"Action Memorandum" shall mean the Amended Action Memorandum dated November 9,
2011, which selects as the remedy the preferred alternative set forth in the Final EE/CA Report
approved by EPA on January 7, 2011. A copy of the Action Memorandum is attached hereto as
Appendix A to this Consent Decree.
"Administrative Order on Consent" means the Administrative Order on Consent between
EPA and the Settling Defendant issued in 2000 under EPA docket number CERCLA 08-2000-15
and all amendments thereto.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended,42 U.S.C. §§ 9601, et seq.

D

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"Consent Decree" shall mean this Decree and all appendices attached hereto (listed in
Section XXIX). In the event of conflict between this Decree and any appendix, this Decree shall
control.
"Day" shall mean a calendar day unless expressly stated to be a working day. "Working
day" shall mean a day other than a Saturday, Sunday, or Federal holiday. In computing any
period oftime under this Consent Decree, where the last day would fall on a Saturday, Sunday,
or Federal holiday, the period shall run until the close of business ofthe next working day.
"Effective Date" shall be the effective date ofthis Consent Decree as provided in Paragraph
95.
"EPA" shall mean the U.S. Environmental Protection Agency and any successor departments
or agencies of the United Stags.
"Future Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States incurs in reviewing or developing plans, reports and other
items pursuant to this Consent Decree, verifying the Work, or otherwise implementing,
overseeing, or enforcing this Consent Decree, including, but not limited to, payroll costs,
contractor costs, travel costs, laboratory costs, the costs incurred pursuant to Sections VTI, IX
(including, but not limited to, the cost of attorney time and any monies paid to secure access
and/or to secure or implement institutional controls including, but not limited to, the amount of
just compensation), Section IX, and Paragraph 79 of Section XXI. Future Response Costs shall
also include all Interim Response Costs, and all Interest on the Past Response Costs Settling
Defendant has agreed to reimburse under this Consent Decree that has accrued pursuant to 42

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U.S.C. § 9607(a) during the period from October 1, 2011 to the date of entry ofthis Consent
Decree.
"Interim Response Costs" shall mean all costs, including direct and indirect costs,(a) paid by
the United States in connection with the Site between October 1, 2011 and the Effective Date, or
(b)incurred prior to the Effective Date but paid after that date.
"Interest," shall mean interest at the rate specified for interest on investments ofthe 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
shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change
on October 1 of each year.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA,42
U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"Paragraph" shall mean a portion ofthis Consent Decree identified by an arabic numeral or
an upper case letter.
"Parties" shall mean the United States and the Settling Defendant.
"Past Response Costs" shall mean all unreimbursed costs, including, but not limited to, direct
and indirect costs, that the United States incurred at or in connection with the Site through
September 30, 2011, plus Interest on all such costs which has accrued pursuant to 42 U.S.C.
§ 9607(a)through such date.

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"Performance Standards" shall mean the clean-up standards and other measures of
achievement of the goals set forth in the Final EE/CA Report approved by EPA on January 7,
2011, the Action Memorandum,the SOW and/or as approved in the Work Plan.
"Plaintiffl' shall mean the United States.
"Post Removal Site Controls" shall mean response actions, including institutional controls, as
.required under an approved Statement of Work(SO'V~ that are necessary to maintain the
effectiveness and integrity ofthe Removal Action after its completion.
"RCRA" shall mean the Solid Waste Disposal Act, as amended,42 U:S.C. §§ 6901— 6992k
(also known as the Resource Conservation and Recovery Act).
"Response Action" shall mean all actions necessary to implement the Action Memorandum
including Post Removal Site Control.
"Section" shall mean a portion ofthis Consent Decree identified by a Roman numeral.
"Settling Defendant" shall mean The Dow Chemical Company.
"Site" shall mean the Twins Inn Superfund Site (Site Identification Number 08-4F), a
contaminated groundwater plume and its source areas that EPA alleges originate at 6611 West
58`" Place. The contaminated groundwater plume extends.east southeast to the area ofthe Twins
Inn Tavern in unincorporated Jefferson County, Colorado. The Site is depicted generally on the
map attached as Appendix B.
"State" shall mean the State of Colorado and the Colorado Deparhnent ofPublic Health and
the Environment(CDPHE)and any successor departments or agencies ofthe State.

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"Statement of Work"(SOV~ shall mean the statement of work for implementation ofthe
Work, as set forth in Appendix C to this Consent Decree, and any modifications made in
accordance with this Consent Decree.
"Supervising Contractor" shall mean the principal contractor retained by the Settling
Defendant to supervise and direct the implementation ofthe Work under this Consent Decree.
"United States" shall mean the United States of America.
"Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of
CERCLA,42 U.S.C. §9601(14);(2)any pollutant or contaminant under Section 101(33), 42
U.S.C. §9601(33);(3) any "solid waste" under Section 1004(27) of RCRA,42 U.S.C.
§6903(27); and (4) any "hazardous material" under C.R.S. 25-15-501 et seq.
"Work" shall mean all activities Settling Defendant is required to perform under this Consent
Decree, the Work Plan or any other work plan developed and approved pursuant to this Consent
Decree, except those required by Section XXV (Retention of Records).
"Work Plan" shall mean the document developed pursuant to Paragraph 10.b. ofthis Consent
Decree and approved by EPA,and any amendments thereto. This Work Plan shall be approved
by EPA prior to its implementation.
V. GENERAL PROVISIONS

5. Objectives of the Parties. The objectives ofthe Parties in entering into this Consent Decree
are: to protect public health or welfare or the environment at the Site by the design and
implementation ofthe. Response Action at the Site by the Settling Defendant, to reimburse

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response costs of the Plaintiff, and to resolve the claims ofPlaintiff against Settling Defendant as
provided in this Consent Decree.
6. Commitments by Settling Defendant. Settling Defendant shall finance and perform the
Work in accordance with this Consent Decree, Action Memorandum, design documents; the

herein

or

SOW,and all work plans and other plans, standards, specifications, and schedules set forth
developed by Settling Defendant and approved by EPA pursuant to this Consent

Decree. Settling Defendant shall also reimburse the United States for Past Costs, Interim Costs,
and Future Response Costs as provided in this Consent Decree.
7. Compliance With Applicable Laws. All activities undertaken by Settling Defendant
pursuant to this Consent Decree shall be performed in accordance with the requirements of all
applicable federal and State laws and regulations. Settling Defendant must also comply with all
applicable or relevant and appropriate requirements(ARARs)of all federal and State
environmental laws as set forth in the Final EE/CA Report approved by EPA on January 7, 2011
to the extent practicable considering the exigencies ofthe situation. The.activities conducted
pursuant to this Consent Decree, if approved by EPA,shall be considered to be consistent with
the NCP.
8.

Permits.
a. As provided in Section 121(e) of CERCLA and Section 300.400(e) of the NCP, no permit

shall be required for any portion of the Work conducted entirely onsite (i.e., within the areal
extent ofcontamination or in very close proximity to the contamination and necessary for
implementation ofthe Work). Where any portion ofthe Work that is not on Site requires a

D

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federal or State permit or approval, Settling Defendant shall submit timely and complete
applications and take all other actions necessary to obtain all such permits or approvals.
b. The Settling Defendant may seek relief under the provisions of Section XVIII(Force
Majeure) ofthis Consent Decree for any unforeseeable delay in the performance ofthe Work
resulting from a failure of other parties to approve, or a delay in obtaining approval of any permit
required for the Work, as long as the delay is in no way attributable to the Settling Defendant or

c.

its contractors.
This Consent Decree is not, and shall not be construed to be, a permit issued pursuant to

any federal or State statute or regulation.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANT

9. Selection of Supervising Contractor.
a. All aspects of the Work to be performed by Settling Defendant pursuant to Sections VI
(Performance of the Work by Settling Defendant), VII(Review of Response Activities), VIII
(Quality Assurance, Sampling and Data Analysis), and XV (Emergency Response) ofthis
Consent Decree shall be under the direction and supervision ofthe Supervising Contractor. With
respect to any contractor proposed to be Supervising Contractor, Settling Defendant shall
demonstrate that the proposed contractor has a quality system that complies with ANSUASQC
E4-1994,"Specifications and Guidelines for Quality Systems for Environmental Data Collection
and Environmental Technology Programs,"(American National Standard, January 5, 1995), by
submitting a copy ofthe proposed contractor's Quality Management Plan(QMP). The QMP
should be prepared in accordance with "EPA Requirements for Quality Management Plans
(QA/R-2)"(EPA/2408-01/002, March 2001) or equivalent documentation as determined by
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EPA. EPA will issue a notice of disapproval or an authorization to proceed. If at any time
thereafter, Settling Defendant proposes to change a Supervising Contractor, Settling Defendant
shall give such notice to EPA and must obtain an authorization to proceed from EPA before the
new Supervising Contractor performs, directs, or supervises any Work under this Consent
Decree.
b. If EPA disapproves a proposed Supervising Contractor, EPA will notify Settling
Defendant in writing. Settling Defendant shall submit to EPA a list of contractors; including the
qualifications ofeach contractor, which would be acceptable to them within 30 days of receipt of
EPA's disapproval of the contractor previously proposed. EPA will provide written notice ofthe
names of any contractors) that it disapproves and an authorization to proceed with respect to any
of the.other contractors. Settling Defendant may select any contractor from that list that is not.
disapproved and shall notify EPA ofthe name of the contractor selected within 21 days of EPA's
authorization to proceed.
c. IfEPA fails to provide written notice of its authorization to proceed or disapproval as
provided in this Paragraph and this failure prevents the Settling Defendant from meeting one or
more deadlines in a plan approved by the EPA pursuant to this Consent Decree, as long as the
delay is in no way attributable to the Settling Defendant or its contractors, Settling Defendant
may seek relief under the provisions of Section XVIII(Force Majeure) hereof.
10. Work Ptan.
a. Within 30 days after EPA's issuance of an authorization to proceed pursuant to
Paragraph 9, Settling Defendant shall submit to EPA and the State the Work Plan that includes a
tasks description and schedule for implementation ofthe Response Action.
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b. (1) The Work Plan shall provide for design and construction ofthe Response Action
selected in the Action Memorandum, in accordance with the SOW and for achievement ofthe
Performance Standards and other requirements set forth in the Action Memorandum, this
Consent Decree, and the SOW. Upon its approval by EPA,the Work Plan shall be incorporated
into and become enforceable under this Consent Decree. Within 30 days after EPA's issuance of
an authorization to proceed, the Settling Defendant shall submit to EPA a Health and Safety Plan
(HASP)for the Work which conforms to the applicable Occupational Safety and Health
Administration and EPA requirements including, but not limited to, 29 C.F.R. § 1910.120.
(2) The Work Plan shall include plans and schedules for implementation of all. Work
tasks identified in the SOW,including, but not limited to, any additional sampling and analysis,
design work submittals, submittals, contingency plan, Post Removal Site Control plan and
schedule, and a schedule for final completion ofthe Work. The Work Plan shall also separately
include a quality assurance plan for the construction and construction completion, the
Construction Quality Assurance Project Plan(CQAPP)and Performance Standards. The
CQAPP shall detail the approach to quality assurance during construction activities at the Site.
EPA may allow the Work Plan to be amended or require that it be modified.
c. All sampling and analysis shall conform to EPA's direction and guidance and its Quality
Assurance and Quality Control(QA/QC)standards. Settling Defendant shall follow, as
appropriate,"Quality Assurance/Quality Control Guidance for Removal Activities: Sampling
QA/QC Plan and Data Validation Procedures"(OSWER Directive No.9360.4-01, April 1, 1990),
as guidance for QA/QC and sampling. Settling Defendant shall only use laboratories that have a
documented Quality System that complies with ANSI
/ASQC E-4 1994,"Specifications and
Guidelines for Quality Systems for Environmental Data Collection and Environmental
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Technology Programs"(American National Standard, January 5, 1995),.and "EPA Requirements
for Quality Management Plans(QA/R-2)(EPA/240B-01/002, March 2001)," or equivalent
documentation as determined by EPA. EPA may consider laboratories accredited under the
National Environmental Laboratory Accreditation Program(NELAP)as meeting the Quality
System requirements.
d. The Settling Defendant shall submit to EPA, with courtesy copies to the State, all plans,
submittals and other deliverables required in accordance with the approved Work Plan. Unless
otherwise directed by EPA, Settling Defendant shall not commence Work activities at the Site
prior to EPA's approval ofthe Work Plan.
11. Implementation of Work Plan.
a. Upon approval ofthe Work Plan or its amendments by EPA,after a reasonable
opportunity for review by the State, and submittal and approval of the Health and Safety Plan for
.all field. activities to EPA, Settling Defendant shall implement the Work Plan or any parts which
have been approved. The Settling Defendant shall submit to EPA, with courtesy copies to the
State, all plans, submittals, or other deliverables required under the approved Work Plan in
accordance with the approved schedule for review and approval pursuant to Section XI(EPA
Approval of Plans and Other Submissions). Unless otherwise directed by EPA, Settling
Defendant shall not commence any physical activities at the Site prior to approval ofthe Work
Plan.
b. The Settling Defendant shall continue to implement the Response Action and Post
Removal Site Controls until the Performance Standards are achieved and for.so long thereafter as
is otherwise required under this Consent Decree.
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12. Modification of the SOW or Related Work Plans.
a. If EPA determines that modification to the Work specified in the SOW and/or the Work
Plan developed pursuant to the SOW is necessary to achieve and maintain the Performance
Standards or to carry out and maintain the effectiveness of the Response Action set forth in the
Action Memorandum,EPA may require that such modification be incorporated in the SOW

Paragraph to the extent that it is consistent with the scope ofthe remedy selected

iri

and/or Work Plan, provided, however, that a modification may only be required pursuant to this
the Action

Memorandum and the long term objectives for the Site.
b. For the purposes ofthis Consent Decree, the "scope ofthe remedy selected in the Action
Memorandum" controls risk by managing receptor use of contaminated ground water until
monitored natural attenuation reduces the contaminates to achieve Performance Standards.
c. If Settling Defendant objects to any modification determined by EPA to be necessary
pursuant to this Paragraph, it may seek dispute resolution pursuant to Section XIX (Dispute
Resolution), Paragraph 62(record review). The SOW and/or Work Plan shall be modified in
accordance with final resolution ofthe dispute.
d. Settling Defendant shall implement any work required by any modifications
incorporated in the SOW and/or Work Plan.
e. Nothing in this Paragraph shall be construed to limit EPA's authority to require
performance offurther response actions as otherwise provided in this Consent Decree.
13. Settling Defendant acknowledges and agrees that nothing in this Consent Decree, the SOW,
or the Work Plan constitutes a warranty or representation of any kind by Plaintiffthat

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compliance with the work requirements set forth in the SOW and the Work Plan will.achieve the
Performance Standards.
14. a. Settling Defendant shall, prior to any off
-site shipment of Waste Material from the Site
to an out-of
-state waste management facility, provide written notification to the appropriate state
environmental official in the receiving facility's state and to the EPA Project Manager of such
shipment of Waste Material. However, this notification requirement shall not apply to any offsite shipments when the total volume of all such shipments will not exceed 10 cubic yards.
(1) The Settling Defendant shall include in the written notification the following
information, where available: (i)the name and location ofthe facility to which the Waste
Material is to be shipped;(ii) the type and quantity ofthe Waste Material to be shipped;(iii) the
expected schedule for the shipment ofthe Waste Material; and (iv)the method oftransportation.
The Settling Defendant shall notify the state in which the planned receiving facility is located of
major changes in the shipment plan, such as a decision to ship the Waste Material to another
facility within the same state, or to a facility in another state
(2) The identity ofthe receiving facility and state will be determined by the Settling
Defendant following the award ofthe contract for Response Action construction. The Settling
Defendant shall provide the information required by this Paragraph as soon as practicable after
the award ofthe contract and before the Waste Material is actually shipped.
b. Before shipping any hazardous substances, pollutants, or contaminants from the Site to
an off-site location, Settling Defendant shall obtain EPA's certification that the proposed
receiving facility is operating in compliance with the requirements of CERCLA Section
121(d)(3) and 40 C.F.R..300.440. Settling Defendant shall send hazardous substances,
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pollutants, or contaminants from the Site only to an off
-site facility that complies with the
requirements ofthe statutory provision and regulations cited in the preceding sentence.
VII. REVIEW OF RESPONSE ACTIVITIES

15. Periodic Review. Settling Defendant shall collect information and conduct any studies and
investigations requested by EPA, in order to conduct the Response Action and any Post Removal
Site Controls necessary to ensure the effectiveness and integriTy ofthe Response Action.
16. EPA Selection of Further Response Actions. IfEPA determines, at any time, that the
Response Action is not protective of human health and the environment, EPA may select further
response actions for the Site in accordance with the requirements ofCERCLA and the NCP.
17. Submissions of Plans. If Settling Defendant is required to perform further response actions
pursuant to Section VII(Review of Response Activities) it shall submit a plan for such work to
EPA for approval in accordance with the procedures set forth in Section VI(Performance ofthe
Work by Settling Defendant) and shall implement the plan approved by EPA in accordance with
the provisions ofthis Decree.
VIII. QUALITY ASSURANCE,SAMPLING,AND DATA ANALYSTS

18. Settling Defendant shall use quality assurance, qualify control,.and chain of custody
procedures for all samples in accordance with "EPA Requirements for Quality Assurance Project
Plans(QA/RS)"(EPA/2408-01/003, March 2001)"Guidance for Quality Assurance Project
Plans(QA/G-5)"(EPA/600/R-98/018, February 1998), and subsequent amendments to such
guidelines upon notification by EPA to Settling Defendant of such amendment. Amended
guidelines shall apply only to procedures conducted after such notification. Prior to the
commencement of any monitoring project under this Consent Decree, Settling Defendant shall
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submit to EPA for approval, after a reasonable opportunity, a Quality Assurance Project Plan
(
"QAPP")that is consistent with the SOW,the NCP, and applicable guidance documents. If
relevant to the proceeding, the Parties agree that validated sampling data generated in accordance
with the QAPP(s)and reviewed and approved by EPA shall be admissible as evidence, without
objection, in any proceeding under this Decree. Settling Defendant shall ensure that EPA
personnel and its authorized representatives are allowed access at reasonable times to all
laboratories utilized by Settling Defendant in implementing this Consent Decree. In addition,
Settling Defendant shall ensure that such laboratories shall analyze all samples submitted by
EPA pursuant to the QAPP for quality assurance monitoring. Settling Defendant shall ensure
that the laboratories it utilizes for the analysis of samples taken pursuant to this Decree perform
all analyses according to accepted EPA methods. Accepted EPA methods consist ofthose
methods which are documented in the "Contract Lab Program Statement of Work for Inorganic
Analysis" and.the "Contract Lab Program Statement of Work for Organic Analysis," dated
February 1988, and any amendments made thereto during the course ofthe implementation of
this Decree; however, upon approval by EPA, after opportunity for review and comment by the
State, the Settling Defendant may use other analytical methods which are as stringent as, or more
stringent than, the Contract Lab Program - approved methods. Settling Defendant shall ensure
that all laboratories it uses for analysis ofsamples taken pursuant to this Consent Decree
participate in an EPA or EPA-equivalent QA/QC program. Settling Defendant shall only use
laboratories that have a documented Quality System which complies with ANSI
/ASQC E4-1994,
"Specifications and Guidelines for Quality Systems for Environmental Data Collection and
Environmental Technology Programs,"(American National Standard, January 5, 1995), and
"EPA Requirements for Quality Management Plans(QA/R-2),"(EPA/2408-01/002, March
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2001) or equivalent documentation as determined by EPA. EPA may consider laboratories
accredited under the NELAP as meeting the Quality System requirements. Settling Defendant
shall ensure that all field methodologies utilized in collecting samples for subsequent analysis
pursuant to this Consent Decree wi(1 be conducted in accordance with the procedures set forth in
the QAPP approved by EPA.
19. Upon request, the Settling Defendant shall allow split or duplicate samples to be taken by
EPA or its authorized representatives. Settling Defendant shall notify EPA not less than 15 days
in advance of any sample collection activity unless shorter notice is agreed to by EPA. In
addition, EPA shall have the right to take any additional samples that EPA deems necessary.
Upon request, EPA shall allow the Settling Defendant to take split or duplicate samples of any
samples it takes as part of the Plaintiffs oversight of the Settling Defendant's implementation of
the Work.
20. Settling Defendant shall submit to EPA and the State one electronic copy of the results of all
.sampling and/or tests or other data obtained or generated by or on behalf of Settling Defendant
with respect to the Site andlor the implementation ofthis Consent Decree, unless EPA agrees
otherwise.
21. Notwithstanding any provision ofthis Consent Decree, the United States hereby retains all
of its information gathering and inspection authorities and rights, including enforcement actions
related thereto, under CERCLA,RCRA and any other applicable statutes or regulations.
IX. ACCESS AND INSTITUTIONAL CONTROLS

22. If EPA determines that land/water use restrictions in the form of State or local laws,
regulations, ordinances or other governmental or institutional controls are needed to implement
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the Response Action to ensure the integrity and protectiveness thereof, or ensure noninterference therewith, Settling Defendant shall use its reasonable best efforts to obtain the
land/water use restrictions acceptable to the EPA
23. If the Site, or any other property where access is needed to implement this Decree or Site
work, is owned or controlled by Settling Defendant or any person affiliated with Settling
Defendant, then Settling Defendant shall, as ofthe Effective Date, provide EPA,the State, and
their representatives, including contractors, with access at all reasonable times to the Site, or
such other property, for the purpose ofconducting any activity related to this Decree.
24.

Settling Defendant and EPA shall cooperate and use their reasonable best efforts in

obtaining all necessary access agreements and land/water use restrictions pertinent to the Work
required under this Consent Decree. IfEPA requests, Settling Defendant shall describe in.
writing its efforts to obtain access and/or land/water use restrictions. IfEPA deems it necessary,
EPA will invoke the Agency's authority under Section 104 ofCERCLA to assist Settling
Defendant in obtaining such needed access or restrictions. Any delay in obtaining necessary

25.

majeure.

which causes delay to Settling Defendant's Work, may be considered a

force

access or restrictions that is not foreseeable or the result of Settling Defendant's own actions, and

Notwithstanding any provision ofthis Consent Decree, the United States retains all of its

access authorities and rights, as well as all of its rights to require land/water use restrictions,
including enforcement authorities related thereto, under CERCLA,RCRA and any other
applicable statute or regulations.

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X. REPORTING REQUIREMENTS

26. In addition to any other requirement ofthis Consent Decree, Settling Defendant shall submit
to EPA and the State an electronic copy of written monthly progress reports that: (a)describe
the actions which have been taken toward achieving compliance with this Consent Decree.during
the previous month;(b)include a summary of all results of sampling and tests and all other data
received or generated by Settling Defendant or its contractors or agents in the previous month;
(c) identify all Work Plans, plans and other deliverables required by this Consent Decree
completed and submitted during the previous month;(d) describe all actions, including, but not
limited to, data collection and implementation of Work Plans, which are scheduled for the next
six weeks and provide other information relating to the progress ofconstruction, including, but
not limited to, critical path diagrams, Gantt charts and Pert charts;(e)include information
regarding percentage of completion, unresolved delays encountered or anticipated that may
affect the future schedule for implementation ofthe Work, and a description of efforts made to
mitigate those delays or anticipated delays;(fl include any modifications to the Work Plan or
other schedules that Settling Defendant has proposed to EPA or that have been approved by
EPA; and (g)describe all activities undertaken in support ofthe Community Relations Plan
during the previous month and those to be undertaken in the following six weeks. Settling
Defendant shall submit these progress reports to EPA by the tenth day ofevery month following
the lodging ofthis Consent Decree until EPA notifies the Settling Defendant pursuant to
Paragraph 45.b. of Section XIV (Certification of Completion). If requested by EPA, Settling
Defendant shall also provide briefings for EPA to discuss the progress ofthe Work.
27. The Settling Defendant shall notify EPA of any change in the schedule described in the
monthlyprogress report for the performance ofany activity, including, but not limited to, data
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collection and implementation of Work Plan, no later than seven days prior to the performance of
the activity.
28. If, during performance of the Work, an event requires the Settling Defendant to report
pursuant to Section 103 of CERCLA or Section 304 ofthe Emergency Planning and Community
Right-to-know Act(EPCRA), Settling Defendant shall, within 24 hours ofthe onset of such
event, orally notify the EPA Project Manager or the Alternate EPA Project Manager (in the event
of the unavailability ofthe EPA Project Manager)or, in the event that neither the EPA Project
Manager or Alternate EPA Project Manager is available, the Emergency Response Section
Region 8, United States Environmental Protection Agency.. These reporting requirements are in
addition to the reporting required by CERCLA Section 103.or EPCRA Section 304.
29. Within 20 days ofthe onset ofsuch an event, Settling Defendant shall furnish to Plaintiff a
written report, signed by the Settling Defendant's Project Manager, setting forth the events which
occurred and the measures taken, and to be taken, in response thereto. Within 30 days ofthe
conclusion of such an event, Settling Defendant shall submit a report setting forth all actions

30. Settling Defendant shall submit an electronic copy of

all

taken in response thereto.
plans, reports, and data required

by the SOW,the Work Plan, or any other approved plans to EPA in accordance with the
schedules set forth in such plans. Settling Defendant shall simultaneously submit one electronic
copy of all such plans, reports and data to the State. Upon request by EPA, Settling Defendant
shall submit in hard copy all portions of any report or other deliverable Settling Defendant is
required to submit pursuant to the provisions ofthis Consent Decree.

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31. All reports and other documents submitted by Settling Defendant to EPA (other than the
monthly progress reports referred to above) which purport to document Settling Defendant's
compliance with the terms ofthis Consent Decree shall be signed by an authorized representative
ofthe Settling Defendant.
XI. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS

32. After review of any plan, report or other item which is required to be submitted for approval
pursuant to this Consent Decree, EPA, after reasonable opportunity for review by the State, shall:
(a) approve, in whole or in part, the submission;(b) approve the submission upon specified
conditions;(c) modify the submission to cure the deficiencies;(d) disapprove, in whole or in
part, the submission, directing that the Settling Defendant modify the submission; or(e)any
combination ofthe above. However, EPA shall not modify a submission without first providing
Settling Defendant at least one notice of deficiency and an opportunity to cure within twenty(20)
days (unless, upon request of Settling Defendant, EPA agrees to a longer period oftime) except
where to do so would cause serious disruption to the Work or where previous submissions) have
been disapproved due to material defects and the deficiencies in the submission under
consideration indicate a bad faith lack of effort to submit an acceptable deliverable.
33. In the event of approval, approval upon conditions, or modification by EPA,pursuantto
Paragraph 32(a),(b), or (c), Settling Defendant shall proceed to take any action required by the
plan, report, or other item, as approved or modified by EPA subject only to Settling Defendant's
right to invoke the Dispute Resolution procedures set forth in Section XIX (Dispute Resolution)
with respect to the modifications or conditions made by EPA. In the event that EPA modifies the
submission to cure the deficiencies pursuant to Paragraph 32(c) and the submission has a
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material defect, EPA retains its right to seek stipulated penalties, as provided in Section XX
(Stipulated Penalties).
34. Resubmission of Plans.
a. Upon receipt of a notice of disapproval pursuant to Paragraph 32(d), Settling Defendant

as

shall, within 10 days, or such longer time as specified by EPA in such notice or such longer time
requested by Settling Defendant and agreed to by EPA, correct the deficiencies and resubmit

the plan, report, or other item for approval. Any stipulated penalties applicable to the
submission, as provided in Section XX,shall accrue during the ten-day period or otherwise
specified period but shall not be payable unless the resubmission is disapproved or modified due
to a material defect as provided in Paragraphs 32 and 33.
b. Notwithstanding the receipt of a notice of disapproval pursuant to Paragraph 32(d),
Settling Defendant shall proceed, at the direction ofEPA,to take any action required by any nondeficient portion of the submission. Implementation of any non-deficient portion of a
submission shall not relieve Settling Defendant of any liability for stipulated penalties under
Section XX (Stipulated Penalties).
35. In the event that a resubmitted plan, report or other item, or portion thereof, is disapproved
by.EPA,EPA may again require the Settling Defendant to correct the deficiencies, in accordance
with the preceding Paragraphs. EPA also retains the right to modify or develop the plan, report
or other item. Settling Defendant shall implement any such plan, report, or item as modified or
developed by EPA,subject only to Settling Defendant's right to invoke the procedures set forth
in Section XIX (Dispute Resolution).

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36. If upon resubmission, a plan, report, or item is disapproved or modified by EPA due to a
material defect, Settling Defendant shall be deemed to have failed to submit such plan, report, or
item timely and adequately unless the Settling invokes the dispute resolution procedures set forth
in Section XTX (Dispute Resolution) and EPA's action is overturned pursuant to that Section.
The provisions of Section XIX (Dispute Resolution) and Section XX (Stipulated Penalties) shall
govern the implementation ofthe Work and accrual and payment of any stipulated penalties
during Dispute Resolution. If EPA's disapproval or modification is upheld, stipulated penalties
shall accrue for such violation from the date on which the initial submission was originally
required, as provided in Section XX.
37. All plans, reports, and other items required to be submitted to EPA under this Consent
Decree shall, upon approval or modification by EPA, be enforceable under this Consent Decree.
Tn the event EPA approves or modifies a portion of a plan, report, or other item required to be
submitted to EPA under this Consent Decree, the approved or modified portion shall be
enforceable under this Consent Decree.
XII. PROJECT MANAGERS

38. Within 20 days of lodging this Consent Decree, Settling Defendant and EPA will notify
each other in writing, ofthe name, address and telephone number oftheir respective designated

Manager initially designated is changed, the identity ofthe successor

will

Project Managers and Alternate Project Managers. If a Project Manager or Alternate Project
be given to the other

Parties at least 5 working days before the changes occur, unless impracticable, but in no event
later than the actual day the change is made. The Settling Defendant's Project Manager,
Alternate Project Manager and any future Project Manager shall be subject to disapproval by
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EPA and shall have the technical expertise sufficient to adequately oversee all aspects ofthe
Work. The Settling Defendant's Project Manager shall not be an attorney for the Settling
Defendant in this matter. He or she may assign other representatives, including other
contractors, to serve as a Site representative for oversight of performance of daily operations
during response activities.
39. Plaintiff may designate other representatives, including, but not limited to, EPA employees,
and federal contractors and consultants, to observe and monitor the progress of any activity
undertaken pursuant to this Consent Decree. EPA's Project Manager and Alternate Project
Manager shall have the authority lawfully vested in a Remedial Project Manager(RPM)and an
On-Scene Coordinator(OSC)by the National Contingency Plan, 40 C.F.R. Part 300. In
addition, EPA's Project Manager or Alternate Project Manager shall have authority, consistent
with the National Contingency Plan, to halt any Work required by this Consent Decree and to
take any necessary response action when s/he determines that conditions at the Site constitute an
emergency situation or may present an immediate threat to public health or welfare or the
environment due to release or threatened release of Waste Material.
40. EPA's Project Manager and the Settling Defendant's Project Manager ~vvill meet, at a
minimum, on a quarterly basis.
XTII. ASSURANCE OF ABILITY TO COMPLETE WORK
41.

Within sixty(60)days following the Effective Date, Settling Defendant shall establish

and maintain financial security for the benefit ofEPA for the performance ofthe Response
Action in the amount of$600,000.

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a.

The financial security shall be in one or more ofthe following forms, in order to

secure the full and final completion of Work:
i.

a surety bond unconditionally guaranteeing payment and/or performance

ii.

one or more irrevocable letters of credit, payable to or at the direction of

ofthe. Work;

EPA, issued by financial institutions) acceptable in all respects to EPA; or
iii.

a trust fund administered by a trustee acceptable in all respects to EPA.

iv.

a demonstration by Settling Defendant that it meets the financial test
criteria of40 C.F.R. 264.143(fl with respect to the estimated cost ofthe
Work (plus the amounts)of any other federal or state environmental
obligations financially assured through the use of a financial test or
guarantee), provided that all other requirements of40 C.F.R. 264.143(fl
are met to EPA's satisfaction.

b.

Settling Defendant shall provide a copy ofits financial security mechanism, and

any accompanying transmittal letters) to:
Daniela Golden
Financial Analyst, 8ENF-RC
Superfund Technical Enforcement Program
US EPA,Region 8
1595 Wynkoop Street
Denver, Colorado 80202.
c.

Any and all financial assurance instruments provided pursuant to this Section

shall be in form and substance satisfactory to EPA,determined in EPA's sole discretion and
follow:
i. the model draft letter of credit dated December 1, 2004, see
"http•//~~«~~v ena ~c~v/compliance/resource/n~licie5/c(eanu~/s~.r~et°I~~nd/fa-credit-mod pfd";
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ii. the model payment surety bond dated July 1, 2005, see
"http:!h~-~vti~~.cpa•;;ov/compliancelresaurces/policies/cleanup/superfund/fa-suret~pavbondal~od•~fc~,,,
iii. the trust fund model dated September 1, 2006,see
"http:/i~~~w~~~~~.epa.~ov/compliance/resouzces/policies!
cleanup/superfund/fa-trust-mod.pfd," or
iv. the model financial test sample letters dated Februaryl4, 2006, see
"http:/
/www.epa. ova /compliance/resources/policies/cleanup/superfund/fa-test-samples.pdf."
42. In the event that EPA determines at any time that the financial assurances provided pursuant
to this Section are inadequate, Settling Defendant shall, within 30 days of receipt of notice of
EPA's determination, obtain and present to EPA for approval one ofthe other forms offinancial
assurance listed in Paragraph 41 ofthis Consent Decree. Settling Defendant's inability to
demonstrate financial ability to complete the Work shall not excuse performance of any activities
required under this Consent Decree.
43. If Settling Defendant can show that the estimated cost to complete the remaining Work has
diminished below the amount set forth in Paragraph 41 above after entry ofthis Consent Decree,
Settling Defendant may, on any anniversary date of entry ofthis Consent Decree, or at any other
time agreed to by the Parties, reduce the amount ofthe financial security provided under this
Section to the estimated cost ofthe remaining work to be performed. Settling Defendant shall
submit a proposal for such reduction to EPA,in accordance with the requirements ofthis
Section, and may reduce the amount of the security upon approval by EPA. In the event ofa
dispute, Settling Defendant may reduce the amount ofthe security in accordance with the final
administrative or judicial decision resolving the dispute.

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44. Settling Defendant may change the form offinancial assurance provided under this Section
at any time, upon notice to and approval by EPA, provided that the new form of assurance meets
the requirements ofthis Section. In the event of a dispute, Settling Defendant may change the
form ofthe financial assurance only in accordance with the final administrative or judicial
decision resolving the dispute.
XIV. CERTIFICATION OF COMPLETION

45. Completion of the Work.
a. Within 90 days after Settling Defendant concludes that all phases ofthe Work
(excluding ongoing requirements) have been fully performed and Performance Standards met,
Settling Defendant shall schedule and conduct apre-certification inspection to be attended by
Settling Defendant and EPA. If, after the pre-certification inspection, the Settling Defendant still
believes that the Work has been fully performed, Settling Defendant shall submit a written report
by a registered professional engineer stating that the Work has been completed in full satisfaction
ofthe requirements of this Consent Decree. The report shall contain the following statement,
signed by a responsible corporate official ofthe Settling Defendant:
To the best of my knowledge, after thorough investigation, I certify that the
information contained in or accompanying this submission is true, accurate and
complete. 7 am aware that there are significant penalties for submitting false
information, including the possibility offine and imprisonment for knowing
violations.
If, after review of the written report, EPA determines that any portion ofthe Work has not been
completed in accordance with this Consent Decree, EPA will notify Settling Defendant in
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writing of the activities that must be undertaken by Settling Defendant pursuant to this Consent
Decree to complete the Work, provided, however, that EPA may only require Settling Defendant
to perform such activities pursuant to this Paragraph to the extent that such activities are
consistent with the scope ofremedy selected in the Action Memorandum. EPA will set forth in
the notice a schedule for performance ofsuch activities consistent with the Consent Decree and
the SOW or require the Settling Defendant to submit a schedule to EPA for approval pursuant to
Section XI(EPA Approval ofPlans and Other Submissions). Settling Defendant shall perform
all activities described in the notice in accordance with the specifications and schedules
established therein, subject to their right to invoke the dispute resolution procedures set forth in
Section XIX (Dispute Resolution).
b. IfEPA concludes, based on the initial or any subsequent request for Certification of
Completion by Settling Defendant, that the Work has been performed in accordance with this
Consent Decree and that the Performance Standards have been achieved, EPA will so notify the
Settling Defendant in writing.
XV. EMERGENC'Y RESPONSE

46. In the event of any action or occurrence during the performance of the Work which causes
or threatens a release of Waste Material from the Site that constitutes an emergency situation or
may present an immediate threat to public health or welfare or the environment, Settling
Defendant shall immediately take all appropriate action to prevent, abate, or minimize such
release or threat of release, and shall immediately notify the EPA's Project Manager, or, ifthe
Project Manager is unavailable, EPA's Alternate Project Manager. If neither ofthese persons is
available, the Settling Defendant shall notify the EPA Regional Response Center, Emergency

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Response Unit, Region 8 at 1-866-411-4372. Settling Defendant shall take such actions in
consultation with EPA's Project Manager or other available authorized EPA officer and in
accordance with all applicable provisions ofthe Health and Safety Plans, the Contingency Plans,
and any other applicable plans or documents developed pursuant to the SOW. In the event that
Settling Defendant fails to take appropriate response action as required by this Section, and EPA
takes such action instead, Settling Defendant shall reimburse EPA all costs ofthe response action
not inconsistent with the NCP pursuant to Section XVI(Payments for Response Costs).
47. Nothing in the preceding Paragraph or in this Consent Decree shall be deemed to limit any
authority ofthe United States:(a)to take all appropriate action to protect human health and the
environment or to prevent, abate, respond to, or minimize an actual. or threatened release of
Waste Material on, at, or from the Site, or(b)to direct or order such action, or seek an order
from the Court, to protect human health and the environment or to prevent, abate, respond to, or
minimize an actual or threatened release of Waste Material on, at, or from the Site, subject to
Section XXI(Covenants Not to Sue by Plaintiffl.
XVI. PAYMENTS FOR RESPONSE COSTS

48. Payments for Past Response Costs.
a. Within 30 days ofthe Effective Date, Settling Defendant shall pay to EPA four hundred
thousand dollars ($400,000) in payment for Past Response Costs. Payment shall be made by
(
FedWire Electronic Funds Transfer "EFT")to the U.S. Department of Justice account in
accordance with current EFT procedures, referencing USAO File Number

,EPA

Site/Spill ID Number #08-4F, and D07 Case Number 90-11-2-08744. Payment shall be made in
accordance with instructions provided to the Settling Defendant by the Financial Litigation Unit
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ofthe United States Attorney's Office for the District ofColorado following lodging ofthe
Consent Decree. Any payments received by the Department of Justice after 4:00 p.m.(Eastern
Time) will be credited on the next business day.
b. At the time of payment, Settling Defendant shall send notice that payment has been
made to the United States, to EPA and to the Regional Financial Management Officer, in
accordance with Section XXVT (Notices and Submissions).
c. The total amount to be paid by Setting Defendant pursuant to Subparagraph 48.a. shall
be deposited into the Twins Inn Special Account #08-4F within the EPA Hazardous Substance
Superfund to be retained and used to conduct or finance response actions at or in connection with
the Site, or to be transferred by EPA to the EPA Hazardous Substance Superfund.
49. Payments for Future Response Costs.
a. Settling Defendant shall pay to EPA all Future Response Costs not inconsistent with the
National Contingency Plan in accordance with the procedures in Section XVI(Payments for
Response Costs). On a periodic basis, the United States will send Settling Defendant a bill
requiring payment that includes a cost summary report. Settling Defendant shall make all
payments within. 30 days of Settling Defendant's receipt ofeach bill requiring payment, except
as otherwise provided in Paragraph 50. Settling Defendant shall make all payments required by
this Paragraph by a certified or cashier's check or wire transfer made payable to "EPA
Hazardous Substance Superfund," referencing the name and address ofthe party making the
payment, the EPA Site Name(Twins Inn)and Spill ID Number 08-4F, and the DOJ Case
Number 90-112-08744. Settling Defendant shall send the checks)to:
Via Regular Mail:

US Environmental Protection Agency
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Superfund Payments
Cincinnati Finance Center
PO Box 979076
St. Louis, MO 63197-9000

Via Federal Express,
Airborne, etc.:

Via Wire Transfers:

U.S. Bank
Government Lockbox 979076
US EPA Superfund Payments
1005 Convention Plaza
SL-MO-C2-GL
St. Louis, MO 63101

Federal Reserve Bank ofNew York
ABA: 021030004
Account Number: 68010727
Field tag 4200 ofthe Fedwire message should read
"D68010727 Environmental Protection Agency"

b. At the time of payment, Settling Defendant shall send notice that payment has been
made to the United States, to EPA and to the Regional Financial Management Officer, in
accordance with Section XXVI(Notices and Submissions).
c. The total amount to be paid by Setting Defendant pursuant to Subparagraphs 48.a. and
49.a. shall be deposited in the Twins Inn Special Account #08-4F within the EPA Hazardous
Substance Superfund to be retained and used to conduct or finance response actions at or in
.connection with the Site, or to be transferred by EPA to the EPA Hazardous Substance
Superfund.
50. Settling Defendant may contest payment of any Future Response Costs under Paragraph 49
if it determines that the United States has made an accounting error or if it alleges that any cost
item that is included represents a cost that is inconsistent with the NCP. Such objection shall be
made in writing within 30 days of receipt ofthe bill and must be sent to the United States
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pursuant to Section XXVI(Notices and Submissions). Any such objection shall specifically
identify the contested Future Response Costs and the basis for objection. In the event of an
objection, the Settling Defendant shall, within the 60 day period, pay all uncontested Future
Response Costs to the United States in the manner described in Paragraph 49. Simultaneously,
the Settling Defendant shall establish an interest-bearing escrow account in afederally-insured
bank and remit to that escrow account funds equivalent to the amount ofthe contested Future
Response Costs. The Settling Defendant shall send to the United States, as provided in Section
XXVI(Notices and Submissions), a copy ofthe transmittal letter and check paying the
uncontested Future Response Costs, and a copy ofthe correspondence that establishes and funds
the escrow account, including, but not limited to, information containing the identity ofthe bank
and bank account under which the escrow account is established as well as a bank statement
.showing the initial balance of the escrow account. Simultaneously with establishment ofthe
escrow account, the Settling Defendant shall initiate the Dispute Resolution procedures in
`Section XIX (Dispute Resolution). Ifthe United States prevails in the dispute, within 5 days of
the resolution ofthe dispute, the Settling Defendant shall pay the sums due (with accrued
interest) to the United States in the manner described in Paragraph 70. Ifthe Settling Defendant
prevails concerning any aspect ofthe contested costs, the Settling Defendant shall pay that
.portion of the costs (plus associated accrued interest) for which it did not prevail to the United
States in the manner described in Paragraph 70. Settling Defendant shall be disbursed any
balance of the escrow account. The dispute resolution procedures set forth in this Paragraph in
conjunction with the procedures set forth in Section XIX (Dispute Resolution) shall be the
exclusive mechanisms for resolving disputes regarding the Settling Defendant's obligation to
reimburse the United States for its Future Response Costs.
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51. In the event that the payments required by Subparagraph 48.a. are not made within 30 days
of the Effective Date or the payments required by Paragraph 70 are not made within 30 days of
the Settling Defendant's receipt of the bill, Settling Defendant shall pay Interest on the unpaid
balance. The Interest to be paid on Past Response Costs under Paragraph 48.a. shall begin to
accrue from the Effective Date ofthis Consent Decree. The Interest on Future Response Costs
shall begin to accrue from the date ofthe bill. The Interest shall accrue through the date of
Settling Defendant's payment. Payments of Interest made under this Paragraph shall be in
addition to such other remedies or sanctions available to Plaintiff by virtue of Settling
Defendant's failure to make timely payments under this Section including, but not limited to,
payment of stipulated penalties pursuant to Paragraph 65. Settling Defendant shall make all
payments required by this Paragraph in the manner described in Paragraph 48.a.
XVII.INDEMNIFICATION AND INSURANCE

52. a. The United States does not assume any liability by entering into this agreement or in the
event that Settling Defendant is designated as EPA's authorized representative under Section
104(e) of CERCLA. Settling Defendant shall indemnify, save and hold harmless the United
States and its officials, agents, employees, contractors, subcontractors, or representatives for or
from any and all claims or causes of action arising from, or on account of, negligent or other
wrongful acts or omissions of Settling Defendant, its officers, directors, employees, agents,
contractors, subcontractors, and any persons acting on their behalf or under its control, in
carrying out activities pursuant to this Consent Decree, including, but not limited to, any such
claims or causes of action that arise during and if Settling Defendant is carrying out activities as
EPA's authorized representative under Section 104(e) of CERCLA. Further, Settling Defendant
agrees to pay the United States all costs incurred by the United States including, but not limited
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to, attorneys fees and other expenses of litigation and settlement arising from, or on account of,
claims made against the United States based on negligent or other wrongful acts or omissions of
Settling Defendant, its officers, directors, employees, agents, contractors, subcontractors, and
any persons acting on their behalf or under its control, in carrying out activities pursuant to this
Consent Decree. The United States shall not be held out as a party to any contract entered into
by or on behalf of Settling Defendant in carrying out activities pursuant to this Consent Decree.
Neither the Settling Defendant nor any such contractor shall be considered an agent ofthe United
States.
b. The United States shall give Settling Defendant notice of any claim for which the United
States plans to seek indemnifcation pursuant to Paragraph 53, and shall consult with Settling
Defendant prior to settling such claim.
53. Settling Defendant waives all claims against the United States for damages or
reimbursement or for set-off of any payments made or to be made to the United States arising
from or on account of any contract, agreement, or arrangement between Settling Defendant and
any person for performance of Work on or relating to the Site, including, but not limited to,
claims on account of construction delays. In addition, Settling Defendant shall indemnify and
hold harmless the United States with respect to any and all claims for damages or reimbursement
arising from or on account of any contract, agreement, or arrangement between Settling
Defendant and any person for performance of Work on or relating to the Site, including, but not
limited to, claims on account of construction delays.
54. No later than 15 days before commencing any on-Site Work, Settling Defendant, or its
contractor, shall secure, and shall maintain until tl~e first anniversary ofEPA's Certification of
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Completion ofthe Response Action under Subparagraph 45 of Section XIV (Certification of
Completion) comprehensive general liability insurance with limits oftwo million dollars,
combined single limit, and automobile liability insurance with limits of one million dollars,
combined single limit, naming the United States as an additional insured. Tn addition, for the
duration ofthis Consent Decree, Settling Defendant shall satisfy, or shall ensure that its
contractors or subcontractors satisfy all applicable laws and regulations regarding the provision
of worker's compensation insurance for all persons performing the Work on behalf of Settling
Defendant in furtherance ofthis Consent Decree. Prior to commencement ofthe Work under
this Consent Decree, Settling Defendant shall provide to EPA certificates of such insurance and a
copy of each insurance policy. Settling Defendant shall resubmit such certificates and copies of
policies each year on the anniversary of the Effective Date. If Settling Defendant demonstrates
by evidence satisfactory to EPA that any contractor or subcontractor maintains insurance
equivalent to that described above, or insurance covering the same risks but in a lesser amount,
then, with respect to that contractor or subcontractor, Settling Defendant need provide only that
portion ofthe insurance described above which is not maintained by the contractor or
subcontractor.
XVIII.FORCE MAJEURE

55. "Force majeure," for purposes ofthis Consent Decree, is defined as any unforeseeable event
arising from causes beyond the control ofthe Settling Defendant, ofany entity controlled by
Settling Defendant, or of Settling Defendant's contractors, which delays or prevents the
performance of any obligation under this Consent Decree regardless of Settling Defendant's best
efforts to fulfill the obligation. The requirement that the Settling Defendant exercise "best
efforts to fulfill the obligation" includes using best efforts to anticipate any potential force
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majeure event and best efforts to address the effects of any potential force majeure event:(a) as it
is occurring; and (b)following the potential force majeure event, such that the delay is
minimized to the greatest extent possible. "Force majeure" does not include financial inability to
complete the Work or a failure to attain the Performance Standards.
56. If any event occurs or has occurred that may delay the performance of any obligation under
a

this Consent Decree, whether or not caused by force majeure event, the Settling Defendant
shall notify orally EPA's Project Manager or, in his or her absence, EPA's Alternate Project
Manager or, in the event both of EPA's designated representatives are unavailable, EPA's
Director for the Office ofPreparedness, Assessment and Emergency Response, within 5 business
days of when Settling Defendant first knew that the event might cause a delay. Within five(5)
business days thereafter, Settling Defendant shall provide in writing to EPA an explanation and
description ofthe reasons for the delay; the anticipated duration ofthe delay; all actions taken or
to be taken to prevent or minimize the delay; a schedule for implementation of any measures to
be taken to prevent or mitigate the delay or the effect ofthe delay; the Settling Defendant's
rationale for attributing such delay to a force majeure event ifthey intend to assert such a claim;
and a statement as to whether, in the opinion ofthe Settling Defendant, such event may cause or
contribute to an endangerment to public health, welfare or the environment. The Settling
Defendant shall include with any notice all available documentation supporting their claim that
the delay was attributable to a force majeure. Failure to comply with the above requirements
shall preclude Settling Defendant from asserting any claim of force majeure for that event for the
period oftime of such failure to comply, and for any additional delay caused by such failure.
Settling Defendant shall be deemed to know of any circumstance of which Settling Defendant,

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any entity controlled by Settling Defendant, or Settling Defendant's contractors knew or should
have known.
57. If EPA agrees that the delay or anticipated delay is attributable to a force majeure event, the
time for performance ofthe obligations under this Consent Decree that are affected by the force
majeure event will be extended by EPA for such time as is necessary to complete those
obligations., An extension ofthe time for performance ofthe obligations affected by the force
majeure event shall not, of itself, extend the time for performance of any other obligation. If
EPA does not agree that the delay or anticipated delay has been or will be caused by a force
majeure event, EPA will notify the Settling Defendant in writing of its decision. IfEPA agrees
that the delay is attributable to a force majeure event, EPA will notify the Settling Defendant in
writing of the length ofthe extension, if any, for performance ofthe obligations affected by the
force majeure event.
58. Ifthe Settling Defendant elects to invoke the dispute resolution procedures set forth in
Section XIX (Dispute Resolution), it shall do so no later than 15 days after receipt ofEPA's
notice. In any such proceeding, Settling Defendant shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated delay has been, or will be caused by,
a force majeure event, that the duration of the delay or the extension sought was or will be
warranted under the circumstances, that best efforts were exercised to avoid and mitigate the
effects ofthe delay, and that Settling Defendant complied with the requirements ofParagraphs
55 and 56, above. If Settling Defendant carries this burden, the delay at issue shall be deemed
not to be a violation by Settling Defendant ofthe affected obligation ofthis Consent Decree
identified to EPA and the Court.

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XIX.DISPiJTE RESOLUTION
59. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution
.procedures ofthis Section shall be the exclusive mechanism to resolve disputes arising under or
with respect to this Consent Decree. However,the procedures set forth in this Section shall not
apply to actions by the United States to enforce obligations ofthe Settling Defendant that have
'not been disputed in accordance with this Section.
60. Any dispute which arises under or with respect to this Consent Decree shall, in the first
instance, be the subject ofinformal negotiations between the parties to the dispute. The period
for informal negotiations shall not exceed 20 days from the time the dispute arises, unless it is
modified by written agreement ofthe parties to the dispute. The dispute shall be considered to
-have arisen when one party sends the other party a written Notice of Dispute.
61. Statements of Position.
a. 7n the event that the parties cannot resolve a dispute by informal negotiations under the
preceding Paragraph, then the position advanced by EPA shall be considered binding unless,
within 10 business days after the conclusion ofthe informal negotiation period, Settling
Defendant invokes the formal dispute resolution procedures ofthis Section by serving on the
United States a written Statement ofPosition on the matter in dispute, including, but not limited
to, any factual data, analysis or opinion supporting that position and any supporting
documentation relied upon by the Settling Defendant. The Statement ofPosition shall specify

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-the Settling Defendant's position as to whether formal dispute resolution should proceed under
Paragraph 62 or Paragraph 63.
b. Within 20 business days after receipt of Settling Defendant's Statement ofPosition, EPA
will serve on Settling Defendant its Statement ofPosition, including, but not limited to, any
factual data, analysis, or opinion supporting that position and all supporting documentation relied
upon by EPA. EPA's Statement ofPosition shall include a statement as to whether formal
dispute resolution should proceed under Paragraph 62 or 63. Within twenty(20) business days
after receipt of EPA's Statement ofPosition, Settling Defendant may submit a reply.
c. Ifthere is disagreement between EPA and the Settling Defendant as to whether dispute
resolution should proceed under Paragraph 62 or 63, the parties to the dispute shall follow the
procedures set forth in the Paragraph determined by EPA to be applicable. However, if the
Settling Defendant ultimately appeals to the Court to resolve the dispute, the Court shall
determine which Paragraph is applicable in accordance with the standards ofapplicability set
forth in Paragraphs 62 and 63.
62. Formal dispute resolution for disputes pertaining to the selection or adequacy of any
response action and all other disputes that are accorded review on the administrative record
under applicable principles of administrative law shall be conducted pursuant to the procedures
set forth in this Paragraph. For purposes of this Paragraph, the adequacy of any response action
includes, without limitation:(1)the adequacy or appropriateness of plans, procedures to
implement plans, or any other items requiring approval by EPA under this Consent Decree; and
(2)the adequacy ofthe performance ofresponse actions taken pursuant to this Consent Decree.

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Nothing in this Consent Decree shall be construed to allow any dispute by Settling Defendant
regarding the validity of any ofthe provisions ofthe Amended Action Memorandum.
a. An administrative record ofthe dispute shall be maintained by EPA and shall contain all
Statements ofPosition, including supporting documentation, submitted pursuant to this Section.
Where appropriate, EPA may allow submission ofsupplemental Statements ofPosition by the
Parties to the dispute.
b. The Assistant Regional Administrator for Ecosystems Protection and Remediation will
issue a final administrative decision resolving the dispute based on the administrative record
described in Paragraph 62.a. This decision shall be binding upon EPA and the Settling
Defendant, subject only to the right to seekjudicial review pursuant to Paragraph 62.c. and 62.d.
c. Any administrative decision made by EPA pursuant to Paragraph 63.b. shall be
reviewable by this Court, provided that a motion for judicial review ofthe decision is filed by the
Settling Defendant with the Court and served on all Parties within 10 business days ofreceipt of
EPA's decision. The motion shall include a description ofthe matter in dispute, the efforts made
by the parties to resolve it, the relief requested, and the schedule, if any, within which the dispute
must be resolved to ensure orderly implementation ofthis Consent Decree. The United States
may file a response to Settling Defendant's motion, as allowed by the rules of this Court.
d. In proceedings on any dispute governed by this Paragraph, Settling Defendant shall have
the burden of demonstrating that the decision ofthe Assistant Regional Administrator for
Ecosystems Protection and Remediation is arbitrary and capricious or otherwise not in
accordance with law. Judicial review of EPA's decision shall be on the administrative record

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compiled pursuant to Paragraph 62.a. Otherwise applicable principles of administrative law shall
govern whether any supplemental materials may be considered by the Court.
63. Formal dispute resolution for disputes that neither pertain to the selection or adequacy of
any response action nor are otherwise accorded review on the administrative record under
applicable principles of administrative law shall be governed by this Paragraph.
a. Following receipt ofSettling Defendant's Statement ofPosition submitted pursuant to
Paragraph 61, the Assistant Regional Administrator for Enforcement, Compliance and
Environmental Justice, EPA Region 8, will issue a final decision resolving the dispute. The
decision shall be binding on EPA and Settling Defendant unless, within 10 business days of
receipt of the decision, the Settling Defendant files with the Court and serves on the parties a
motion for judicial review ofthe decision setting forth the matter in dispute, the efforts made by
the parties to resolve it, the relief requested, and the schedule, if any, within which the dispute
must be resolved to ensure orderly implementation of the Consent Decree. The United States
may file a response to Settling Defendant's motion.
b. Judicial review of any dispute governed by this Paragraph shall be governed by
applicable .principles oflaw. The invocation offormal dispute resolution procedures under this
Section shall not extend, postpone or affect in any way any obligation ofthe Settling Defendant
under this Consent Decree, not directly in dispute, unless EPA or the Court agrees'otherwise:
Stipulated penalties with respect to the disputed matter shall continue to accrue but payment shall
be stayed pending resolution ofthe dispute as provided in Paragraph 71, Notwithstanding the
stay of payment, stipulated penalties shall accrue'from the first day of noncompliance with any
applicable provision ofthis Consent Decree. In the event that the Settling Defendant does not
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prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in
Section XX (Stipulated Penalties).
XX. STIPULATED PENALTIES

64. Settling Defendant shall be liable for stipulated penalties in the amounts set forth in
Paragraphs 65 and 66 to the United States for failure to comply with the requirements ofthis
Consent Decree specified below, unless excused under Section XVIII(Force Majeure).
"Compliance" by Settling Defendant shall include completion ofthe activities under this Consent
Decree or any work plan or other plan approved under this Consent Decree identified below in
accordance with all applicable requirements of law, this Consent Decree, the SOW,and any
plans or other documents approved by EPA pursuant to this Consent Decree and within the
specified time schedules established by, and approved under, this Consent Decree.
65. Stivalated Penalty Amounts -Work.
The following stipulated penalties shall accrue per violation per day for any noncompliance
of Work milestones in the schedule and Work Plan submitted or payments required herein.
Penalty Per Violation Per Day

Period of Noncompliance

$ 500.00

1st through 14th day

$ 900.00

15th through 30th day

$ 5,000.00

31st day and beyond

66. Stipulated Penalty Amounts - Reports.
The following stipulated penalties shall accrue per violation per day for failure to submit
timely or adequate reports or other written documents in accordance with Sections VI, VII, VIII,
IX and X:
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Penalty Per Violation Per Day

Period of Noncompliance

$ 200.00

1st through 14th day

$ 400.00

15th through 30th day

$ 2,500.00

31st day and beyond

67. Tn the event that EPA assumes performance of a portion or all ofthe Work pursuant to
Paragraph 79 of Section XXI(Covenants Not to Sue by Plaintiffl, Settling Defendant shall be
liable for an additional stipulated penalty in the amount of$50,000.00. This amount is a
stipulated penalty only, to be imposed on Settling Defendant in the event EPA is required to
assume Work under this Consent Decree. This amount is not a liquidation ofEPA's claims for
past or future costs incurred in the event EPA must assume Work under this Consent Decree. In
that event EPA retains all of its statutory authority for implementing or ordering CERCLA
response actions and claims for costs incurred.
68. All penalties shall begin to accrue on the day after the complete performance is due or the
day a violation occurs, and .shall continue to accrue through the final day ofthe correction ofthe
noncompliance or completion of the activity. However, stipulated penalties shall not accrue:
(a) with respect to a deficient submission under Section XI(EPA Approval ofPlans and Other
Submissions), during the period, if any, beginning on the 31st day after EPA's receipt of such
submission until the date that EPA notifies Settling Defendant of any deficiency;(b) with respect
to a decision by the EPA Region 8, under Paragraph 62.b. or 63.a. of Section XIX (Dispute
Resolution), during the period, if any, beginning on the 21st day after the date that Settling
Defendant's reply to EPA's Statement of Position is received until the date that the Director
issues a final decision regarding such dispute; or (c) with respect to judicial review by this Court
of any dispute under Section XIX (Dispute Resolution), during the period, if any, beginning on
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the 21st day after the Court's receipt ofthe final submission regarding the dispute until the date
that the Court issues a final decision regarding such dispute. Nothing herein shall prevent the
simultaneous accrual ofseparate penalties for separate violations ofthis Consent Decree.
69. Following EPA's determination that Settling Defendant has failed to comply with a
requirement of this Consent Decree, EPA shall give Settling Defendant written notification of the
same and describe the noncompliance. Penalties shall accrue as provided in the preceding
Paragraph regardless of whether EPA sends Settling Defendant a written demand for payment of
the penalties.
70. All penalties accruing under this Section shall be due and payable to the United States
within 30 days of the Settling Defendant's receipt from EPA of a demand for payment ofthe
penalties, unless Settling Defendant invokes the Dispute Resolution procedures under Section
XIX (Dispute Resolution). All payments to the United States under this Section shall be paid by
certified'or cashier's checks) or wire transfer made payable to "EPA Hazardous Substances
Superfund," shall indicate that the payment is for stipulated penalties, and shall reference the
EPA Region and Site/Spill YD #08-4F, the DOJ Case Number 90-11-2-08744, and the name and
address ofthe Party making payment. Payments shall be mailed to:
Via Regular Mail:

Via Federal Express,
Airborne, etc.:

US Environmental Protection Agency
Fines and Penalties
Cincinnati Finance Center
PO Box 979077
St. Louis, MO 63197-9000

U.S. Bank
Government Lockbox 979077
US EPA Fines &Penalties
1005 Convention Plaza
SL-MO-C2-GL

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St. Louis, MO 63101
Via Wire Transfers:

Federal Reserve Bank of New York
ABA: 021030004
Account Number: 68010727
Field Tag 4200 ofthe Fedwire message should read:
"D68010727 Environmental Protection Agency"

Copies of checks) paid pursuant to this Section, and any accompanying transmittal letter(s),
shall be sent to the United States as provided in Section XXVI(Notices and Submissions).
The payment of penalties shall not alter in any way Settling Defendant's obligation to complete
the performance of the Work required under this Consent Decree.
71. Penalties shall continue to accrue as provided in Paragraph 68 during any dispute resolution
period, but need not be paid until the following:
a. Ifthe dispute is resolved by agreement or by a decision ofEPA that is not appealed to
this Court, accrued penalties determined to be owing shall be paid to EPA within 15 business
days of the agreement or the receipt of EPA's decision or order;
b. If the dispute is appealed to this Court and the United States prevails in whole or in part,
Settling Defendant shall pay .all accrued penalties determined by the Court to be owed to EPA
within 30 days of receipt of the Court's decision or order, except as provided in Subparagraph c
below;
c. Ifthe District Court's decision is appealed by either Party, Settling Defendant shall pay
all accrued penalties determined by the District Court to be owing to the United States into an
interest-bearing escrow account within 30 days of receipt ofthe Court's decision or order.
Penalties shall be paid into this account as they continue to accrue, at least every 30 days.

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Within 15 business days of receipt ofthe final appellate court decision, the escrow agent shall
pay the balance ofthe account to EPA or to Settling Defendant to the extent that they prevail.
72. If Settling Defendant fails to pay stipulated penalties when due, the United States may
institute proceedings to collect the penalties, as well as interest: Settling Defendant shall pay
Interest on the unpaid balance, which shall begin to accrue on the date of demand made pursuant
to Paragraph 70.
73. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in any way
limiting the ability ofthe United States to seek any other remedies or sanctions available by
virtue of Settling Defendant's violation ofthis Decree or ofthe statutes and regulations upon
which it is based, including, but not limited to, penalties pursuant to Section 122(1) of CERCLA,
provided, however, that the United States shall not seek civil penalties pursuant to Section 122(1)
of CERCLA for any violation for which a stipulated penalty is provided herein, except in the
case of a willful violation of the Consent Decree.
74. Notwithstanding any other provision ofthis Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
this Consent Decree.
XXI. COVENANTS NOT TO SUE BY PLAINTIFF

75. In consideration of the actions that have been performed by Settling Defendant, including
the costs ofcompliance with administrative consent orders for the Site (including costs
previously reimbursed to the EPA)and the actions that will be performed and the payments that
will be made by the Settling Defendant under the terms of the Consent Decree, and except as
specifically provided in Paragraph 76, 78, 79 and 80 ofthis Section, the United States covenants
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not to sue or to take administrative action against Settling Defendant pursuant to Sections 106
and 107(a) of CERCLA and Section 7003 of RCRA relating to the Site. These covenants not to
sue shall take effect upon the receipt by EPA ofthe payments required by Paragraphs 48.a. and
49.a. of Section XVI(Payments for Response Costs). These covenants not to sue are
conditioned upon the satisfactory performance by Settling Defendant of its obligations under this
Consent Decree. These covenants not to sue extend only to the Settling Defendant and do not
extend to any other person.
76. United States' Post-certification Reservations. Notwithstanding any other provision of
this Consent Decree, the United States reserves, and this Consent Decree is without prejudice to,
its right to institute proceedings in this action or in a new action, or to issue an administrative
order seeking to compel Settling Defendant:
a. to perform further response actions relating to the Site, or
b. to reimburse the United States for additional costs ofresponse if, subsequent to
Certification of Completion ofthe Response Action:
(1) conditions at the Site, previously unknown to EPA, are discovered, or
(2) information, previously unknown to EPA, is received, in whole or in part, and EPA
determines that these previously unknown conditions or this information together with other
relevant information indicate that the Response Action is not protective of human health or the
environment.
77. For purposes ofParagraph 76, the information and conditions known to EPA shall include
only the information and conditions set out in EPA's administrative record for the Action
Memorandum and the information for the Site found in the EPA Region 8 Superfund Record
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Center as ofthe Effective Date ofthis Consent Decree. For purposes of Paragraph 79, the
information and the conditions known to EPA shall include only that information and those
conditions known to EPA as ofthe date of Certification of Completion ofthe Response Action
and set forth in the Action Memorandum,the administrative record supporting the Action
Memorandum, or in any information received by EPA pursuant to the requirements ofthis
Consent Decree prior to Certification of Completion ofthe Response Action.
78. General reservations of rights. The United States reserves, and this Consent Decree is
without prejudice to, all rights against Settling Defendant with respect to all matters not
expressly included within Plaintiff's covenant not to sue. Notwithstanding any other provision
of this Consent Decree, the United States reserves all rights against Settling Defendant with
respect to:
a. claims based on a failure by Settling Defendant to meet a requirement ofthis Consent
Decree;
b. liability arising from the past, present, or future disposal, release, or threat of release of
Waste Material outside ofthe Site;
c. liability based upon the Settling Defendant's ownership or operation ofthe Site, or upon
the Settling Defendants transportation, treatment, storage, or disposal, or the arrangement for the
transportation, treatment, storage, or disposal of Waste Material at or in connection with the Site,
other than as provided in the Site administrative record, the Work, or otherwise ordered by EPA,
after signature ofthis Consent Decree by the Settling Defendant;
d. liability for damages for injury to, destruction of, or loss of natural resources, and for the
costs of any natural resource damage assessments;
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e. criminal liability;
f. liability for violations offederal or State law which occur during or after implementation
ofthe Removal Action; and
g. liability, prior to Certification of Completion ofthe Response Action, for additional
response actions that EPA determines are necessary to achieve Performance Standards, but that
cannot be required pursuant to Paragraph 12(Modification of the SOW or Related Work Plans).
79. Work Takeover. In the event EPA determines that Settling Defendant has ceased
implementation of any portion ofthe Work, is seriously or repeatedly deficient or late in its
performance ofthe Work, or is implementing the Work in a manner which may cause an
endangerment to human health or the environment, EPA may assume the performance of all or
any portions of the Work as EPA determines necessary. Settling Defendant may invoke the
procedures set forth in Section XIX (Dispute Resolution) to dispute EPA's determination that
takeover ofthe Work is warranted under this Paragraph. Costs incurred by the United States in
performing the Work pursuant to this Paragraph shall be considered Future Response Costs that
Settling Defendant shall pay pursuant to Section XVI(Payments for Response Costs).
80. Notwithstanding any other provision ofthis Consent Decree,the United States retains all
authority and reserves all rights to take any and all response actions authorized by law.
XXII. COVENANTS BY SETTLING DEFENDANT

81. Covenant Not to Sue. Subject to the reservations in Paragraph 82, Settling Defendant
hereby covenants not to sue and agrees not to assert any claims or causes of action against the
United States with respect to the Site, the Work, past response actions, and Past and Future
Response Costs as defined herein this Consent Decree, including, but.not limited to:
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a. any direct or indirect claim for reimbursement from the Hazardous Substance Superfund
(established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507)through CERCLA
Sections 106(b)(2), 107, 11.1, 1 l2, 113 or any other provision of law;
b. any claims against the United States, including any department, agency or

c. any claims arising out of response actions at or

in

instrumentality ofthe United States under CERCLA Sections 107 or 113 related to the Site, or
connection with the Site, including

any claim under the United States Constitution, the State Constitution, the Tucker Act, 28 U.S.C.
§ 1491, the Equal Access to justice Act,28 U.S.C. § 2412, as amended, or at common law.
82. The Settling Defendant reserves, and this Consent Decree is without prejudice to, claims
against the United States; subject to the provisions of Chapter 171 of Title.28 ofthe United
States Code, for money damages for injury or loss of property or personal injury or death caused
by the negligent or wrongful act or omission of any employee ofthe United States while acting
within the scope of his office or employment under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law ofthe place where the
act or omission occurred. However, any such claim shall not include a claim for any damages
caused, in whole or in part, by the act or omission of any person, including any contractor, who
is not a federal employee as that term is defined in 28 U.S.C. § 2671; nor shall any such claim
include a claim based on EPA's selection of response actions, or the oversight or approval ofthe
Settling Defendant's plans or activities. The foregoing applies only to claims which are brought
pursuant to any .statute other than CERCLA and for which the waiver ofsovereign immunity is
found in a statute other than CERCLA.

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83. Nothing in this Consent Decree shall be deemed to constitute preauthorization of a claim
within the meaning of Section 111 of CERCLA,42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d).
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION

84. Nothing in this Consent Decree shall be construed to create any rights in, or grant any cause
of action to, any. person not a Party to this Consent Decree. The preceding sentence shall not be
construed to waive or nullify any rights that any person not a signatory to this Consent Decree
may have under applicable law. Each ofthe Parties expressly reserves any and all rights
(including, but not limited to, any right to contribution), defenses, claims, demands, and causes
of action which each Party may have with respect to any matter, transaction, or occurrence
relating in any way to the Site against any person not a Party hereto.
85. The Parties agree, and by entering this Consent Decree this Court finds, that the Settling
Defendant is entitled, as ofthe Effective Date, to protection from contribution actions or claims
as provided by CERCLA Section 113(fl(2), 42 U.S.C. § 9613(fl(2), for matters addressed in this
Consent Decree. "Matters Addressed" in this Consent Decree include all response costs incurred
or to be incurred by the United States, the Settling Defendant, or any other person relating to the
Site, including the Work, Past Response Costs, Interim Response Costs and Future Response
Costs. To the extent authorized under 42 U.S.C. § 9613(fl(3)(b), or other provisions of
CERCLA, by entering into this judicial settlement of liablity for the Matters Addressed herein
Settling Defendant may seek contribution from any person except those who are entitled to
contribution protection under 42 U.S.C. § 9613 (fl(2). The Settling Defendant agrees that with
respect to any suit or claim for contribution brought by it for matters related to this Consent

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Decree it will notify the United States and the State in writing no later than 60 days prior to the
initiation of such suit or claim.
86. The Settling Defendant also agrees that with respect to any suit or claim for contribution
brought against it for matters related to this Consent Decree it will notify in writing the United
States and the State within 10 days of service ofthe complaint on them. In addition, Settling
Defendant shall notify the United States and the State within 10 days of service or receipt of any
Motion for Summary Judgment and within 10 days of receipt of any order from a court setting a
case for trial.
87. 7n any subsequent administrative or judicial proceeding initiated by the United States or the
.State against Settling Defendant(including any third-party action) for injunctive relief, recovery
of response costs, or other appropriate relief relating to the Site, Settling Defendant shall not
assert, and may not maintain, any defense or claim based upon the principles of waiver, res
judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based. upon any
contention that the claims raised by the United States in the subsequent proceeding were or
should have been brought in the instant case; provided, however,that nothing in this Paragraph
affects the enforceability ofthe covenants not to sue set forth in Section XXI(Covenants Not to
Sue by Plaintiff.
XXIV.ACCESS TO INFORMATION

88. Settling Defendant shall provide to EPA, upon request, copies of all documents and
information within their possession or control or that of its contractors or agents relating to
activities at the Site or to the implementation ofthis Consent Decree, including, but not limited
to, sampling, analysis, chain-of-custody records, manifests, trucking logs, receipts, reports,
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sample traffic routing, correspondence, or other documents or information related to the Work.
Settling Defendant shall also make available to EPA,for purposes of investigation, information
gathering, or testimony, their employees, agents, or representatives with knowledge of relevant
facts concerning the performance ofthe Work.
89. Business Confidential and Privileged Documents.
a. Settling Defendant may assert business confidentiality claims covering part or all ofthe
documents or information submitted to Plaintiff under this Consent Decree to the extent
permitted by and in accordance with Section 104(e)(7) of CERCLA,42 U.S.C. § 9604(e)(7), and
40 C.F.R. § 2.203(b). Documents or information determined to be confidential by EPA will be
afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality
accompanies documents or information when they are submitted to EPA,or ifEPA has notified
Settling Defendant that the documents or information are not confidential under the standards of
Section 104(e)(7) ofCERCLA or 40 C.F.R. Part 2, Subpart B;the public may be given access to
such documents or information without further notice to Settling Defendant.
b. The Settling Defendant may assert that certain documents, records and other information
are privileged under the attorney-client privilege or any other privilege recognized by federal
law. If the Settling- Defendant asserts such a privilege in lieu of providing documents, they shall
provide the Plaintiff with the following: (1)the title ofthe document, record, or information;(2)
the date ofthe document, record, or information;(3)the name and title ofthe author ofthe
document, record, or information;(4)the name and title ofeach addressee and recipient;(5)a
description ofthe contents ofthe document, record, or information; and(6)the privilege asserted
by Settling Defendant. However, no documents, reports or other information created or

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generated pursuant to the requirements ofthe Consent Decree shall be withheld on the grounds.
that they are privileged.
90. No claim of confidentiality shall be made with respect to any data, including, but not limited
to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or engineering data,
or any other documents or information evidencing conditions at or around the Site.
XXV.RETENTION OF RECORDS

91. Until 10 years after the Settling Defendant's receipt ofEPA's notification pursuant to
Paragraph 45.b. of Section XIV (Certification of Completion ofthe Work), Settling Defendant

documents in electronic form) now in its possession or control

or

shall preserve and retain all non-identical copies ofrecords and documents (including records or
which come into its possession

or control that relate in any manner to its liability under CERCLA with respect to the Site,
provided, however, that Settling Defendant must retain, in addition, all documents and records
that relate to the liability of any other person under CERCLA with respect to the Site unless
provided to the Settling Defendant by EPA or the State. Settling Defendant must also retain, and
instruct its contractors and agents to preserve, for the same period oftime specified above all
non-identical copies ofthe last draft or final version of any documents or records (including
documents or records in electronic form) now in its possession or control or which come into its
possession or control that relate in any manner to the performance ofthe Work, provided,
however, Settling Defendant(and its contractors and agents) must retain, in addition, copies of

documents required to be retained. Each ofthe above record retention requirements shall
regardless of any corporate retention policy to the contrary.

55

apply

all data generated during the performance ofthe Work and not contained in the aforementioned

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92. At the conclusion ofthis document retention period,.Settling Defendant shall notify the
United States at least 90 days prior to the destruction of any such records or documents, and,
upon request by the United States, Settling Defendant shall deliver any such records or
documents to EPA. The Settling Defendant may assert that certain documents, records and other
information are privileged under the attorney-client privilege or any other privilege recognized
by federal law. Ifthe Settling Defendant asserts such a privilege, it shall provide the Plaintiff
with the following: (a)the title ofthe document, record, or information;(b)the date ofthe
document, record, or information;(c)the name and title.ofthe author ofthe document, record, or
information;(d)the name and title ofeach addressee and recipient;(e)a description ofthe
subject ofthe document, record, or information; and (fl the privilege asserted by Settling
Defendant. However, no documents, reports or other information created or generated pursuant
to the requirements.ofthe Consent Decree shall be withheld on the grounds that they are
privileged.
93. Settling Defendant hereby certifies that, to the best of its knowledge and belief, after
thorough inquiry, it has not altered, mutilated, discarded, destroyed or otherwise disposed of any
records, documents or other information (other than identical copies) relating to its potential
liability regarding the Site since notification of potential liability by the United States or the State
or the filing of suit against it regarding the Site and that it has fully complied with any and all
EPA requests for information pursuant to Section 104(e) and 122(e) of CERCLA,42 U.S.C.
9604(e) and 9622(e), and Section 3007 ofRCRA,42 U.S.C. 6927.

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XXVI.NOTICES AND SUBMISSIONS

94. Whenever, under the terms of this Consent Decree, written notice is required to be given or a
report or other document is required to be sent by one Party to another, it shall be directed to the
individuals at the addresses specified below, unless those individuals or their successors give
notice of a change to the other Party in writing. All notices and submissions shall be considered
effective upon receipt, unless otherwise provided. Written notice as specified herein shall
constitute complete satisfaction of any written notice requirement of the Consent Decree with
respect to the United States, EPA,the State, and the Settling Defendant, respectively.
As to the United States Department of Justice:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DOJ #90-11-2-08744
As to EPA Region 8:
Erna Waterman, EPR-SR or EPA Project Manager Twins Inn Site
EPA Project Manager
United States Environmental Protection Agency
1595 Wynkoop Street
Denver, Colorado 80202-1129
Waterman.erna~a~,epa.gov
,Steven Moores
Enforcement Attorney
Legal Enforcement Program
United States Environmental Protection Agency
1595 Wynkoop Street
Denver, Colorado 80202-1129
Steven.mooresnae,epa.eov

As to the EPA Regional Financial Management Officer:
Chief Financial- Officer(8TMS-F)
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United States Environmental Protection Agency
1595 Wynkoop Street
Denver, Colorado 80202-1129
poc;tteE•joe~cLepa.~;ov
As to the Settling Defendant:
Thomas E. Gieck
Remediation Leader
The Dow Chemical Company
2754 Compass Drive, Suite 280
Grand Junction, CO 81506-8728
[e-mail]
Shannon Slowey Callahan
Senior Counsel
EH&S Legal
The Dow Chemical Company
100 Independence Mall West
Philadelphia, PA 19106
`~Calla.t~~n;r.c~c~«~.com
Carol L. Dudnick, Esq.
cltiudi~ick~r~attalet
Henry W.Ipsen, Esq.
Bryan Cave LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203-4541
H~~~~k.l:~ena:brvancave.com
XXVII. EFFECTNE DATE

95. The Effective Date of this Consent Decree shall be the date upon which this Consent Decree
is entered by the Court.
XXVIII. RETENTION OF.TURISDTCTION

96. This Court retains jurisdiction over both the subject matter ofthis Consent Decree and the
Settling Defendant for the duration ofthe performance ofthe terms and provisions ofthis
Consent Decree for the purpose ofenabling any ofthe Parties to apply to the Court at any time
for such further order, direction, and relief as may be necessary or appropriate for the
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construction or modification ofthis Consent Decree, or to effectuate or enforce compliance with
its terms, or to resolve disputes in accordance with Section XIX (Dispute Resolution) hereof.
XXIX. APPENDICES

97.

The following appendices are attached to and incorporated into this Consent Decree:
"Appendix A" is the Action Memorandum;
"Appendix B" is the Map ofthe Site;
"Appendix C" is the Statement of Work.
XXX. COMMUNITY RELATIONS

98.

Settling Defendant shall participate in the community relations plan to be developed by

EPA. EPA will determine the appropriate role for the Settling Defendant under the Plan.
Settling Defendant shall also cooperate with EPA and the State in providing information
regarding the Work to the public. As requested by EPA, Settling Defendant shall participate in
the preparation of such information for dissemination to the public and in public meetings which
may be held or sponsored by EPA to explain activities at or relating to the Site.
XXXI. MODIFICATION

99,

Schedules specified in this Consent Decree for completion ofthe Work may be modified

by agreement ofEPA and the Settling Defendant. All such modifications shall be made in
writing.
100. Except as provided in Paragraph 12(Modification ofthe SOW or Related Work Plans), no
material modifications shall be made to the SOW without written notification to and written
approval of the lJnited States, Settling Defendant, and the Court, if such modifications
fundamentally alter the basic features of the selected remedy within the meaning of40 C.F.R.
300.435(c)(2)(ii). Prior to providing its approval to any modification, the United States will
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provide the State with a reasonable opportunity to review the proposed modification.
Modifications to the SOW that do not materially alter that document, or material modifications
to the SOW that do not fundamentally alter the basic features ofthe selected remedy within the
meaning of40 C.F.R.300.435(c)(2)(ii), may be made by written agreement between EPA,after
providing the State with a reasonable opportunity to review the proposed modification, and the
Settling Defendant.
101. Nothing in this Decree shall be deemed to alter the Court's power to enforce, supervise or
approve modifications to this Consent Decree.
XXXII.LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

102. This Consent Decree shall be lodged with the Court for a period of not less than 30 days
for public notice and comment in accordance with Section 122(d)(2) of CERCLA,42 U.S.C. §
9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold
its consent if the comments regarding the Consent Decree disclose facts or considerations which
indicate that the Consent Decree is inappropriate, improper, or inadequate. Settling Defendant
consents to the entry of this Consent Decree without further notice.
103. If for any reason the Court should decline to approve this Consent Decree in the form
presented, this agreement is voidable at the sole discretion of either Party and the terms ofthe
agreement may not be used as evidence in any litigation between the Parties.
XXXIII. STGNATORTES/SERVICE
104. The undersigned representative of Settling Defendant to this Consent Decree and the
Assistant Attorney General for the Environment and Natural Resources Division ofthe
Department of Justice certifies that he or she is fully authorized to enter into the terms and
conditions ofthis Consent Decree and to execute and legally bind such Party to this document.
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105. Settling Defendant hereby agrees not to oppose entry ofthis Consent Decree by this Court
or to challenge any provision of this Consent Decree unless the United States has notified the
Settling Defendant in writing that it no longer supports entry ofthe Consent Decree.
106. Settling Defendant shall identify, on the attached signature page, the name, address and
telephone number of an agent who is authorized to accept service ofprocess by mail on behalf of
Settling Defendant with respect to all matters arising under or relating to this Consent Decree.
Settling Defendant hereby agrees to accept service in that manner and to waive the formal
service requirements set forth in Rule 4 ofthe Federal Rules of Civil Procedure and any
applicable local rules ofthis Court, including, but not limited to, service of a summons. The
Parties agree that Settling Defendant need not file an answer to the complaint in this action
unless or until the court expressly declines to enter this Consent Decree.
XXXIV. FINAL JUDGMENT

107. This Consent Decree and its appendices constitute the final, complete, and exclusive
agreement and understanding among the Parties with respect to the settlement embodied in the
Consent Decree. The Parties acknowledge that there are no representations, agreements or
understandings relating to the settlement other than those expressly contained in this Consent
Decree.
108. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment between and among the United States and the Settling Defendant.

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In the matter of United States vs. The Dow Chemical Company, relating to the Twins Inn
Superfund Site:

FOR THE UNITED STATES OF AMERICA:

United States Department of Justice
Environment and Natural Resources Division

~5
Date

2-~ i3
Robert G. Dreher
Acting Assistant Attorney General
Environment and Natural Resources Division

Date

Nathaniel Douglas
Deputy Section Chief
Environmental Enforcement Section
U.S. Department of Justice
Washington, D.C. 20530

Da e

Elliot Morris Rockier
Trial Attorney
Environmental Enforcement Section
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611

6,~

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In the matter of United States vs. The Dow Chemical Company, relating to the Twins Inn
Superfund Site:

United States Environmental Protection Agency:

~•/s' /3
Date

BILL
Y
Director
Superfund Remedial Program
U.S. Environmental Protection Agency
Region 8
1595 Wynkoop Street
Denver, Colorado 80202

:.~~,~G~~~c%~i
ANDREA MADIGAN
`
Supervisory Attorney
Legal Enforcement Program
U.S. Environmental Protection Agency
Region 8
1595 Wynkoop Street
Denver;Colorado 80202

KLLCA~VD
Director
Technical Enforcement Program
U.S. Environmental Protection Agency
Region 8
1595 Wynkoop Street
Denver, Colorado 80202-1129

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In the matter of United States vs. Dow Chemical Company, relating to the Twins Inn
Superfund Site:

FOR THE DOW CHEMICAL COMPANY:

Date

Signature
Name (print):
Neil C. Hawkins

Title: VP, EH&S & Sustainability
Address:
The Dow Chemical Company
2020 Dow Center
Midland, MI 48674

Agent Authorized to Accept Service on Behalf of The Dow Chemical Company:

Name: The Corporation Company
Title:
Address:
1675 Broadway
Suite 1200
Denver, CO 80202
Ph. Number: 303-629-2500

65