USA v. Dravo Corporation, et al

Filing 305

CONSENT DECREE WITH DESCO CORPORATION.Ordered by Senior Judge Joseph F. Bataillon. (ADB)

UNITED STATES DISTRJCT COURT
DISTRJCT OF NEBRASKA
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UNITED STATES OF AMERJCA,
Plaintiff,

Civil No. 8:0l-CV-500-JFB-TDT

V.

DRAVO, LLC (f/k/a DRAVO CORPORATION),
DESCO CORPORATION,
DESCO CORPORATION d/b/a
MARSHALLTOWN
INSTRUMENTS, INC.
Defendants.
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CONSENT DECREE WITH
DESCO CORPORATION

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. Rates are available online at
https://www.epa.gov/superfund/superfund-interest-rates.
"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.
"Operable Unit 01 or "OU 01" shall mean the portion of the Site that addresses
groundwater contamination within the Colorado Avenue subsite, and depicted generally on the
map included in Appendix A.
"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 the Settling Defendant.
"Plaintiff' shall mean the United States.
"RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also
known as the Resource Conservation and Recovery Act).
"Section" shall mean a portion of this Consent Decree identified by a Roman
numeral.
"Settling Defendant" shall mean Desco Corporation.
"Site" shall mean the Hastings Groundwater Contamination Superfund Site, located in
and around the City of Hastings, Nebraska, and generally shown on the map included in
Appendix A.
"Hastings Groundwater Contamination Superfund Site Special Account" or "Special
Account" shall mean the special account, within the EPA Hazardous Substance Superfund,
established for the Site by EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. §
9622(b)(3).
"State" shall mean the State of Nebraska.
"United States" shall mean the United States of America and each department,
agency, and instrumentality of the United States, including EPA.
V.

STATEMENT OF PURPOSE

4.
By entering into this Consent Decree, the mutual objective of the Parties is for
Settling Defendant to make a cash payment to resolve its alleged civil liability with regard to OU
01 of the Site under Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607, as
provided in the Covenants by Plaintiff in Section VIII, and subject to the Reservations of Rights
by United States in Section IX.

3

VI.

PAYMENT OF RESPONSE COSTS

5.
Payment of Response Costs. Within 30 days after the Effective Date, Settling
Defendant shall pay to EPA $131,067, plus an additional sum for Interest from the date of
lodging of this Consent Decree through the date of payment.
6.
Settling Defendant shall make payment at https://www.pay.gov in accordance
with instructions provided to Settling Defendant by the Financial Litigation Program (FLP) of
the U.S. Attorney's Office for the District of Nebraska after the Effective Date. The payment
instructions provided by the FLU will include a Consolidated Debt Collection System (CDCS)
number, Site/Spill ID Number 07S2, and DJ Number 90-11-2-1260/10, which shall be used to
identify all payments required to be made in accordance with this Consent Decree. The FLP will
provide the payment instructions to:
David Crane
Chief Financial Officer
DESCO CORPORATION
7795 Walton Parkway, Suite 175
New Albany, OH 43054
Tel: [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 to DOJ and EPA of such change in
accordance with Section XIV (Notices and Submissions).
7.
Deposit of Payment. The total amount to be paid pursuant to Paragraph 5
(Payment of Response Costs) shall be deposited by EPA in the Hastings Groundwater
Contamination Superfund Site Special Account 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.
8.
Notice of Payment. At the time of payment, Settling Defendant shall send to
EPA and DOJ in accordance with Section XIV (Notices and Submissions), a notice of this
payment including references to the CDCS Number, Site/Spill ID Number 07S2, and
DJ Number 90-11-2-1260/10.
VII.

FAILURE TO COMPLY WITH CONSENT DECREE

9.
Interest on Late Payments. If Settling Defendant fails to make the payment
required by Paragraph 5 (Payment of Response Costs) by the required due date, Interest shall
accrue on the unpaid balance from the Effective Date through the date of payment.
10.

Stipulated Penalty for Late Payments.

a.
If any amounts due to EPA under Paragraph 5 (Payment of Response
Costs) are not paid by the required date, Settling Defendant shall be in violation of this Consent
Decree and shall pay, as a stipulated penalty, in addition to the Interest required by Paragraph 9
(Interest on Payments):

4

Penalty Per Violation
Per Working Day
$1,000
$2,000
$4,000
$8,000

Period of Noncompliance
1st through 14th day
15th through 30th day
31st through 60th day
61st day and beyond

b.
Stipulated penalties are due and payable within 30 days after the date of
the demand for payment of the penalties by EPA. Settling Defendant shall make all payments at
_
https:// www.pay.gov in accordance with the procedures under Paragraph 6 and shall send notice
of such payments in accordance with the procedures under Paragraph 8 (Notice of Payment).
Settling Defendant shall indicate in the comment field on the https://www.pay.gov payment form
that the payment is for stipulated penalties.
c.
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.
11.
If the United States brings an action to enforce this Consent Decree, Settling
Defendant shall reimburse the United States for all costs of such action, including but not limited
to costs of attorney time.
12.
Payments made under this Section shall be in addition to any other remedies or
sanctions available to Plaintiff by virtue of Settling Defendant's failure to comply with the
requirements of this Consent Decree.
13.
Notwithstanding any other provision of this Section, the United States may, in its
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 VI (Payment of Response Costs) or
from performance of any other requirements of this Consent Decree.
VIII. COVENANTS BY PLAINTIFF
14.
Except as specifically provided in Section IX (Reservation of Rights by United
States), the United States covenants not to sue or to take administrative action against Settling
Defendant pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a),
regarding OU 01 of the Site. With respect to present and future liability, these covenants shall
take effect upon the Effective Date. 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.
IX.

RESERVATION OF RIGHTS BY UNITED STATES

15.
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
5

"Appendix A" is the map of the Site. OU O 1 is located within the Colorado Avenue
Subsite.

XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
3 5.
This Consent Decree shall be lodged with the Court for a period of at least
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 that this Consent Decree is inappropriate, improper, or inadequate.
Settling Defendant consents to the entry of this Consent Decree without further notice.
36.
If for any reason this Court should decline to approve this Consent Decree in the
form presented, this Consent Decree is voidable at the sole discretion of any Party and the terms
of the Consent Decree may not be used as evidence in any litigation between the Parties.
XVIII. SIGNATORIES/SERVICE

37.
Each undersigned representative of Settling Defendant and [TED of] the U.S.
Department of Justice, Environment and Natural Resources Division certifies that they are
authorized to enter into the terms and conditions of this Consent Decree and to execute and bind
legally such Party to this document.
38.
Settling Defendant agrees not to oppose entry of this Consent Decree by this
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.
39.
Settling Defendant shall identify, on the attached signature page, the name and
address of an agent who is authorized to accept service of process by mail on its behalf with
respect to all matters arising under or relating to this Consent Decree. Settling Defendant 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.

XIX. FINAL JUDGMENT
40.
Upon entry of this Consent Decree by the Court, this Consent Decree shall
constitute the final judgment between the United States and Settling Defendant. The Court enters
this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.
SO ORDERED THIS 5th DAY OF February
---, 20 24

United States District Judge

11

Signature Page for Consent Decree Regarding the Hastings Groundwater Contamination
Superfund Site

FOR THE UNITED STATES OF AMERICA:

Susan M. Akers
Deputy Section Chief
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Washington, D.C. 20044-7611
s/ Erika M. Wells
Erika M. Wells, OR # 05500
Senior Counsel
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
7600 Sand Point Way, NE
Seattle, Washington 98115
s/ Joanna Citron Day
Joanna Citron Day, DC # 477833
Senior Counsel
U.S. Department of Justice
Environment and Natural Resources Division
Enviromnental Enforcement Section
P.O. Box 7611
Washington, D.C. 20044-7611

12

SUSAN T. LEHR
Acting United States Attorney
District of Nebraska

TIMOTHY R. HOOK, #24529
Assistant U.S. Attorney
Omaha, NE 68102-1506
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

13

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MEGHAN
MCCOLLISTER

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MEGHAN MCCOLLISTER
Date: 2023.09.27 10:47:51
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Gulley,
Katherine

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Date: 2023.09.26
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