USA v. CONAGRA GROCERY PRODUCTS COMPANY LLC

Filing 185

CONSENT DECREE. It is hereby ORDERED that any motion for attorney's fees shall be filed within the time specified in Local Rule 54.2 of this Court. By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

UNITED STATES OF AMERICA

)
)

Plaintiff,

)

Civil No. 2:1l-cv-455-NT

v.
CONAGRA GROCERY PRODUCTS
COMPANY, LLC,
Defendant.

)
)
)

CONSENT DECREE

TABLE OF CONTENTS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.

BACKGROUND
JURISDICTION
PARTIES BOUND
DEfiNITIONS
PAYMENT OF RESPONSE COSTS
FAILURE TO COMPLY WITH CONSENT DECREE
COVENANTS BY PLA1NTIFF
RESERVATIONS OF RIGHTS BY UNITED STATES
COVENANTS BY SETTliNG DEFENDANT
EFFECT OF SETTLEMENT/CONTRIBUTION
RETENTION OF RECORDS
NOTICES AND SUBMISSIONS
RETENTION OF JURISDICTION
INTEGRATION/APPENDIX
LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
SIGNATORIES/SERVICE
FINAL JUDGMENT

11

1
I
1
1
3
4
5
5
6
6
7
8
9
9
9
9
10

I.

BACKGROUND

The United States of America (‘United States”), on behalf of the Administrator of
A.
the United States Environmental Protection Agency (EPA”), filed a complaint in this matter
pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. § 9607 (“CERCLA”), seeking reimbursement of response costs incurred
or to be incurred for response actions taken at or in connection with the release or threatened
release of hazardous substances at the A.C. Lawrence Leather Company Sludge Lagoons
Superfund Site in South Paris, Oxford County, Maine (“the Site”).
ConAgra Grocery Products Company, LLC (“Settling Defendant”) does not admit
B.
any liability to Plaintiff arising out of the transactions or occurrences alleged in the complaint.
The United States and Settling Defendant agree, and this Court by entering this
C.
Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith,
that settlement of this matter without further litigation and without any further admission or
adjudication of any issue of fact or law is appropriate and will avoid prolonged and complicated
litigation between the Parties, and that this Consent Decree is fair, reasonable, and consistent
with the goals of CERCLA.
THEREFORE, with the consent of the Parties to this Decree, it is ORDERED,
ADJUDGED, AND DECREED:
II.

JURISDICTION

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

PARTIES BOUND

This Consent Decree is binding upon the United States and upon Settling
2.
Defendant and its successors and assigns. Any change in ownership or corporate or other legal
status, including but not limited to, any transfer of assets or real or personal property, shall in no
way alter the status or responsibilities of Settling Defendant under this Consent Decree.
IV.

DEFINITIONS

Unless otherwise expressly provided in this Consent Decree, terms used in this
3.
Decree that are defined in CERCLA or in regulations promulgated under CERCLA
Consent
shall have the meanings assigned to them in CERCLA or in such regulations. Whenever terms
listed below are used in this Consent Decree or its appendices, the following definitions shall
apply:

‘CERCLA” shall mean the Comprehensive Environmental Response, Compensation. and
Liability Act, 42 U.S.C. §sS 9601-9675.
“Consent Decree” shall mean this Consent Decree and the appendix attached hereto. In
the event of a conflict between the Consent Decree and the appendix, the Consent Decree shall
control.
“Day” or “day” shall mean a calendar day. In computing any period of time under this
Consent Decree, where the last day would fall on a Saturday, Sunday, or federal or state holiday,
the period shall run until the close of business of the next working day.
“DOJ” shall mean the United States Department of Justice and its successor departments,
agencies, or instrumentalities.
“Effective Date” shall mean the date upon which the approval of this Consent Decree is
recorded on the Court’s docket.
“EPA” shall mean the United States Environmental Protection Agency and its successor
departments, agencies, or instrumentalities.
“EPA Hazardous Substance Superfund” shall mean the Hazardous Substance Superfund
established by the Internal Revenue Code, 26 U.S.C. § 9507.

“Interest” shall mean interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on
October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest
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.
“Paragraph” shall mean a portion of this Consent Decree identified by an Arabic numeral
or an upper or lower case letter.
“Parties” shall mean the United States and Settling Defendant.
“Past Response Costs” shall mean all costs, including but not limited to direct and
indirect costs, that EPA or DOJ on behalf of EPA has paid at or in connection with the Site
through May 12, 2014, plus accrued Interest on all such costs through such date.
“Plaintiff’ shall mean the United States.
“Section” shall mean a portion of this Consent Decree identified by a Roman numeral.
“Settling Defendant’S shall mean ConAgra Grocery Products Company, LLC.
“Site” shall mean the A.C. Lawrence Leather Company Sludge Lagoons Superfund Site,
encompassing approximately seven acres, located in South Paris, Oxford County, Maine. The
real property encompassed by the Site is known as Lot 7. Lot 7 is generally depicted on the map
attached hereto as Appendix A. The Site is bounded to the east by Oxford Street, to the north by

the Little Androscoggin River, to the west by a railroad right of way, and to the south by a lot
that has been cleared for residential development.
“United States” shall mean the United States of America and each department, agency,
instrumentality of the United States, including EPA.
and
V.

PAYMENT OF RESPONSE COSTS

Payment by Setting Defendant for Past Response Costs. Within 30 days after the
4.
Effective Date, Settling Defendant shall pay to EPA $5,700,000, plus an additional sum for
Interest on that amount calculated from August 1, 2014, through the date of payment.
Payment by Settling Defendant shall be made at https://www.pay.gov to the U.S.
5.
Department of Justice account, in accordance with instructions provided to Settling Defendant by
the Financial Litigation Unit (‘FLU”) of the United States Attorney’s Office for the District of
Maine after the Effective Date. The payment instructions provided by the FLU shall include a
Consolidated Debt Collection System (“CDCS”) number, which shall be used to identify all
payments required to be made in accordance with this Consent Decree. The FLU shall provide
the payment instructions to:
Chris Aupperle
One ConAgra Drive, 1-190
Omaha, NE 68102
[phone]
[e-mail]
on behalf of Settling Defendant. Settling Defendant may change the individual to receive
payment instructions on its behalf by providing written notice of such change to DOJ and EPA in
accordance with Section XII (Notices and Submissions).
Notice of Payment. At the time of payment, Settling Defendant shall send notice
6.
that payment has been made to EPA and DOJ in accordance with Section XII (Notices and
Submissions), and to the EPA Cincinnati Finance Office by email at
[e-mail], or by mail to:
EPA Cincinnati Finance Office
26 Martin Luther King Drive
Cincinnati, Ohio 45268
Such notice shall reference the CDCS Number, Site ID Number O1BG, and DOJ case number
90-1 1-3-10097.
The total amount to be paid pursuant to Paragraph 4 shall be deposited by EPA in
7.
the EPA Hazardous Substance Superfund.

3

VI.

FAILURE TO COMPLY WITH CONSENT DECREE

Interest on Late Payments. If Settling Defendant fails to make any payment under
8.
Paragraph 4 (Payment by Setting Defendant for Past Response Costs) by the required due date,
Interest shall continue to accrue on the unpaid balance through the date of payment.
9.

Stipulated Penalty.
a.

If any amounts due to EPA under Paragraph 4 (Payment by Setting
Defendant for Past Response Costs) are not paid by the required date,
Settling Defendant shall be in violation of this Consent Decree and shall
pay to EPA, as a stipulated penalty, in addition to the Interest required by
Paragraph 8, $1,250.00 per violation per day that such payment is late.

b.

Stipulated penalties are due and payable within 30 days after the date of
the demand for payment of the penalties by EPA. All payments to EPA
under this Paragraph shall be identified as “stipulated penalties” and shall
be made by Fedwire Electronic Funds Transfer (‘EFT”) to:

Federal Reserve Bank of New York
ABA = 021030004
Account = 68010727
SWIFT address = FRNYUS33
33 Liberty Street
New York NY 10045
Field Tag 4200 of the Fedwire message should read “D 68010727 Environmental
Protection Agency”
c.

At the time of payment, Settling Defendant shall send notice that payment
has been made to EPA and DOJ in accordance with Section XII (Notices
and Submissions), and to the EPA Cincinnati Finance Office by email at
acctsreceivable.cinwdepa.gov, or by mail to:

EPA Cincinnati Finance Office
26 Martin Luther King Drive
Cincinnati, Ohio 45268
Such notice shall reference Site ID Number O1BG, the CDCS Number, and DOJ Case Number
90-1 1-3-10097.
d.

Penalties shall accrue as provided in this Paragraph regardless of whether
EPA has notified Settling Defendant of the violation or made a demand for
payment, but need only be paid upon demand. All penalties shall begin to
accrue on the day after payment is due and shall continue to accrue
through the date of payment. Nothing in this Consent Decree shall prevent
the simultaneous accrual of separate penalties for separate violations of
this Consent Decree.
4

If the United States brings an action to enforce this Consent Decree, Settling
10.
Defendant shall reimburse the United States for all costs of such action, including but not limited
to costs of attorney time.
Payments made under this Section shall be in addition to any other remedies or
11.
sanctions available to Plaintiff by virtue of Settling Defendant’s failure to comply with the
requirements of this Consent Decree.
Notwithstanding any other provision of this Section, the United States may, in its
12.
unreviewable discretion, waive payment of any portion of the stipulated penalties that have
accrued pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse
Settling Defendant from payment as required by Section V or from performance of any other
requirements of this Consent Decree.
VII.

COVENANTS BY PLAINTIFF

Covenants for Settling Defendant by United States. Except as specifically
13.
in Section VIII (Reservation of Rights by United States), the United States covenants
provided
not to sue or to take administrative action against Settling Defendant pursuant to Section 107(a)
of CERCLA, 42 U.S.C. § 9607(a), to recover Past Response Costs. These covenants shall take
effect upon receipt by EPA of the payments required by Paragraph 4 (Payment by Settling
Defendant for Past Response Costs) and any Interest or stipulated penalties due thereon under
Paragraph 8 (Interest on Late Payments) or 9 (Stipulated Penalty). These covenants are
conditioned upon the satisfactory performance by Settling Defendant of its obligations under this
Consent Decree. These covenants extend only to Settling Defendant and do not extend to any
other person.
VIII.

RESERVATIONS OF RIGHTS BY UNITED STATES

The United States reserves and this Consent Decree is without prejudice to, all
14.
rights against Settling Defendant with respect to all matters not expressly included within
Paragraph 13 (Covenants for Settling Defendant by United States). Notwithstanding any other
provision of this Consent Decree, the United States reserves all rights against Settling Defendant
with respect to:
a.

liability for failure of Settling Defendant to meet a requirement of this
Consent Decree;

b.

liability for costs incurred or to be incurred by the United States that are
not within the definition of Past Response Costs;

c.

liability for injunctive relief or administrative order enforcement under
Section 106 of CERCLA, 42 U.S.C. § 9606;

d.

criminal liability; and

e.

liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments.
5

IX.

COVENANTS BY SETTL[NG DEFENDANT

Settling Defendant covenants not to sue and agrees not to assert any claims or
1 5.
causes of action against the United States, or its contractors or employees, with respect to Past
Response Costs and this Consent Decree, including but not limited to:
a.

any direct or indirect claim for reimbursement from the EPA Hazardous
Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or 113
of CERCLA, 42 U.S.C. §S 9606(b)(2), 9607, 9611, 9612, or 9613, or any
other provision of law;

b.

any claim arising out of the response actions at the Site for which the Past
Response Costs were incurred, including any claim under the United
States Constitution, the Constitution of the State of Maine, the Tucker Act,
28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at
common law; or

c.

any claim pursuant to Section 107 or 113 of CERCLA, 42 U.S.C. § 9607
or 9613, Section 7002(a) of RCRA, 42 U.S.C. § 6972(a), or state law for
Past Response Costs.

Nothing in this Consent Decree shall be deemed to constitute approval or
16.
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).
X.

EFFECT OF SETTLEMENT/CONTRIBUTION

Nothing in this Consent Decree shall be construed to create any rights in, or grant
17.
any cause of action to, any person not a Party to this Consent Decree. Except as provided in
Section IX (Covenants by Settling Defendant), each of the Parties expressly reserves any and all
rights (including, but not limited to, pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613),
defenses, claims, demands, and causes of action that 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. Nothing in this Consent Decree diminishes the right of the United States, pursuant to
Section 113(0(2) and (3) of CERCLA, 42 U.S.C. § 96l3(f)(2)-(3), to pursue any such persons to
obtain additional response costs or response action and to enter into settlements that give rise to
contribution protection pursuant to Section 113(0(2).
The Parties agree, and by entering this Consent Decree this Court finds, that this
18.
Consent Decree constitutes a judicially-approved settlement for purposes of Section 113(0(2) of
CERCLA, 42 U.S.C. § 9613(0(2), and that Settling Defendant is entitled, as of the Effective
Date, to protection from contribution actions or claims as provided by Section 113(0(2) of
CERCLA, 42 U.S.C. § 96 13(0(2), or as may be otherwise provided by law, for “matters
addressed” in this Consent Decree. The “matters addressed” in this Consent Decree are Past
Response Costs.
Settling Defendant shall, with respect to any suit or claim brought by it for
19.
matters related to this Consent Decree, notify EPA and DOJ in writing no later than 60 days prior
6

to the initiation of such suit or claim. Settling Defendant also shall, with respect to any suit or
claim brought against it for matters related to this Consent Decree, notify EPA and DOJ in
writing within 10 days after service of the complaint or claim upon it. In addition, each Settling
Defendant shall notify EPA and DOJ within 10 days after service or receipt of any Motion for
Summary Judgment, and within 10 days after receipt of any order from a court setting a case for
trial, for matters related to this Consent Decree.
In any subsequent administrative or judicial proceeding initiated by the United
20.
States for injunctive relief, recovery of response costs, or other relief relating to the Site, Settling
Defendant shall not assert, and may not maintain, any defense or claim based upon the principles
of waiver, resjudicata, 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 of the Covenants by Plaintiff set forth in Section VII.
XI.

RETENTION OF RECORDS

Until 10 years after the entry of this Consent Decree, Settling Defendant shall
21.
preserve and retain all non-identical copies of records, reports, documents, and other information
(hereinafter referred to as “Records”) (including records in electronic form) now in its possession
or control, or that come into its possession or control, that relate in any manner to the Site or to
the liability of any person under CERCLA with respect to the Site, regardless of any corporate
retention policy to the contrary.
After the conclusion of the 10-year document retention period in the preceding
22.
Paragraph, Settling Defendant shall notify EPA and DOJ at least 90 days prior to the destruction
of any such Records, and, upon request by EPA or DOJ, Settling Defendant shall deliver any
such Records to EPA. Settling Defendant may assert that all or part of a Record is privileged or
protected under the attorney-client privilege or any other privilege or protection provided under
federal law, provided they comply with this Paragraph below. If Settling Defendant asserts such
a privilege or protection, it shall provide Plaintiff with the following: (1) the title of the Record;
(2) the date of the Record; (3) the name, title, affiliation (e.g., company or firm), and address of
the author of the Record; (4) the name, title, affiliation (e.g., company or firm), and address of
each addressee and recipient of the Record; (5) a description of the Record’s contents; and (6)
the privilege or protection asserted. If a claim of privilege or protection applies only to a portion
of a Record, Settling Defendant shall provide the Record to Plaintiff in redacted form to mask
the privileged or protected information only. Settling Defendant shall retain all Records that it
claims to be privileged or protected until the United States has had a reasonable opportunity to
dispute the privilege or protection claim and any such dispute has been resolved in the Settling
Defendant’s favor. However, Settling Defendant may make no claim of privilege or protection
regarding any Record, or portion thereof, that Settling Defendant is required to create or generate
pursuant to this Consent Decree. Settling Defendant may assert that all or part of a Record
submitted to Plaintiff under this Section (Retention of Records) is business confidential to the
extent permitted by and in accordance with Section l04(e)(7) of CERCLA, 42 U.S.C.
§ 9604(e)(7), and 40 C.F.R. 2.203(b). Settling Defendant shall segregate and clearly identify all
Records or parts thereof submitted under this Consent Decree for which Settling Defendant
asserts a business confidentiality claim. Records submitted to EPA determined to be confidential
7

by EPA will be accorded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of
confidentiality accompanies Records when they are submitted to EPA, or if EPA has notified
Settling Defendant that the Records are not confidential under the standards of Section 104(e)(7)
of CERCLA or 40 C.F.R. Part 2 Subpart B, the public may be given access to such Records
without further notice to Settling Defendant.
Settling Defendant certifies that, to the best of its knowledge and belief, after
23.
thorough inquiry, it has not altered, mutilated, discarded, destroyed or otherwise disposed of any
Records (other than identical copies) relating to its potential liability regarding the Site since
notification of potential liability by the United States and that it has fully complied with any and
all EPA requests for information regarding the Site pursuant to Sections 104(e) and 122(e) of
CERCLA, 42 U.S.C. § 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927.
Notwithstanding any provision of this Consent Decree, the United States retains
24.
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.
XII.

NOTICES AND SUBMISSIONS

Whenever, under the terms of this Consent Decree, notice is required to be given
25.
or a 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 Parties in writing. Written notice as specified in this Section shall constitute
complete satisfaction of any written notice requirement of the Consent Decree with respect to
EPA, DOJ, and Settling Defendant, respectively.
As to DOJ:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-1 1-3-10097
As to EPA:
Office of Regional Counsel
U.S. Environmental Protection Agency, Region I
5 Post Office Square, Suite 100
Boston, MA 02109
As to Setting Defendant:
Chris Aupperle
Counsel
One ConAgra Drive, 1-190
8

Omaha, NE 68102
XIII.

RETENTION OF JURISDICTION

This Court shall retain jurisdiction over this matter for the purpose of interpreting
26.
and enforcing the terms of this Consent Decree.
XIV.

INTEGRATION/APPENDIX

This Consent Decree and its appendix constitutes the final, complete, and
27.
exclusive agreement and understanding among the Parties with respect to the settlement
embodied in this 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. The following appendix is attached to and incorporated into this Consent
Decree. “Appendix A” is a map generally depicting the location of the Site.
XV.

LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

This Consent Decree shall be lodged with the Court for a period of not less than
28.
30 days for public notice and comment. The United States reserves the right to withdraw or
withhold its consent if the comments regarding the Consent Decree disclose facts or
considerations that indicate this Consent Decree is inappropriate, improper, or inadequate.
Settling Defendant consents to the entry of this Consent Decree without further notice.
If for any reason this Court should decline to approve this Consent Decree in the
29.
form presented, this agreement is voidable at the sole discretion of any Party, and the terms of
the agreement may not be used as evidence in any litigation between the Parties.
XVI.

SIGNATORIES/SERVICE

Each undersigned representative of Settling Defendant and the Acting Assistant
30.
Attorney General, Environment and Natural Resources Division, United States Department of
Justice, or his designee, certifies that he or she is authorized to enter into the terms and
conditions of this Consent Decree and to execute and bind legally such Party to this document.
Settling Defendant agrees not to oppose entry of this Consent Decree by this
31.
Court or to challenge any provision of this Consent Decree, unless the United States has notified
Settling Defendant in writing that it no longer supports entry of the Consent Decree.
Settling Defendant shall identify, on the attached signature page, the name and
32.
address of an agent who is authorized to accept service of process by mail on behalf of that Party
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 of the Federal Rules of Civil Procedure and any applicable local rules of this
Court, including but not limited to, service of a summons.

9

XVII. FINAL JUDGMENT
Upon entry of this Consent Decree by the Court, this Consent Decree shall
33.
constitute the final judgment between and among the United States and the Settling Defendant.
The Court finds that there is no just reason for delay and therefore enters this judgment as a final
judgment under Fed. R. Civ. P. 54 and 58.
SO ORDERED THIS d5)AY OF4k4 2014.

United Stes District Judge

10

FOR THE UNITED STATES OF AMERICA:

_2fj_
Date

t4

/
SAM lIIRSCH
Acting Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530

Laura J. Row1e’, Trial Attorne
Claire Woods. Trial Attorney
Bradley Levine, Trial Attorney
David L. Weigert, Senior Counsel
Environmental Enforcement Section
Environment and Natural Resources 1)ivision
U.S. Department of Justice
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044-7611
[phone]
Laura.Row1eyusdoj .gov
THOMAS F. DELAHANTY II
United States Attorney
District of Maine

John G. Osborn
Assistant United States Attorney
U.S. Attorney’s Office, District of Maine
100 Middle Street Plaza
East Tower, Sixth Floor
Portland, ME 04101
[phone]
John.Osborn2usdoj .gov

1/!

//

i/
/

J

V

H. CURTIS SPAL.DNG
Regional Administrator, Region I
U.S. Environmental Protection Agency
5 Post Office Square
Boston, MA 02109

/

/_

L
uthAnn S herman
Senior Entbrcernent Counsel
U.S. EPA Region I
5 Post Office Square, Suite 100
Boston, MA 02109
Sherman. Ruthann(a epa. gov
[phone]

FOR CONAGRA GROCERY PRODUCTS COMPANY, LLC:
/

Date

4
Name: Leo A. Knowles
Title: President
Address: One ConAgra Drive, 1-370
Omaha, NE 68 102

Agent Authorized to Accept Ser ice on Behalf of Above-signed Party:

/
\ame: Chris Aupperle
Title: Counsel
Address: One ConAgra Drie, 1-190
Omaha. NE 68102
Phone: [phone]
Email: chris.aupperleconagrafoods.com

S

*

—-,

=

—

_.—

—

-o
rn
z

.O

‘:

c_li

S

S

D

H

a

0

(D

U)

C