United States of America et al v. Aaron Ferer & Sons Company

Filing 5

CONSENT DECREE -Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA
and
CIVIL ACTION NO.

STATE OF NEBRASKA,

8:12CV406

Plaintiffs,
v.
AARON FERER &SONS,COMPANY
Defendant.

CONSENT DECREE
TABLE OF CONTENTS
I.
II.
I7~.

IV.
V.
VI.
VII.
VIII.
IX.
X.

BACKGROUND...................................................................................................................1
JIJRISDICTION ....................................................................................................................1
PARTIES BOUND................................................................................................................ 1
DEFINITTONS .....................:............................................................................................... 2
STATEMENT OF PURPOSE .................................................................................................. 3
PAYMENT OF RESPONSE COSTS......................................................................................... 3
FAILURE TO COMPLY WITH CONSENT DECREE ................................................................ 3
COVENANT NOT TO SUE BY PLAINTIFFS .......................................................................... S
RESERVATION OF RIGHTS BY PLAINTTFFS ......................................................................... S
COVENANT NOT TO SUE BY SETTLING DEFENDANT ......................................................... Fi

XII.

EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION ..................................................... E
ACCESS TO INPORMATION ................................................................................................. 7

XIII.
XIV.

RETENTION OF RECORDS .................................................................................................. S
NOTICES AND SUBMISSTONS.............................................................................................. S

XV.

RETENTION OF.
TURISDICTION .......................................................................................... lO
INTEGRATION/APPENDICES ............................................................................................. 10

XI.

XVI.
XVIII.

LODGING AND OPPORTUNITY FOR PUBLIC COMMENT..................................................... I O
SIGNATOTtIES/SERVICE....................................................................................................lO

XIX.

FINAL TUDGMENT............................................................................................................ 11

XVII.

I. BACKGROUND

(
The United States of America "United States"), on behalf of the Administrator of
A.
(
the United States Environmental Protection Agency "EPA"), and the State of Nebraska
"State"), on behalf ofthe Director ofthe Nebraska Department of Environmental Quality
(
(
"NDEQ"), 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. §§ 9606,9607.
The United States in its complaint seeks, inter alias reimbursement of certain
B.
costs incurred by EPA for response actions at the Omaha Lead Superfund Site in Omaha,
Nebraska.
The State is seeking reimbursement of certain costs incurred by the Nebraska
C.
Department of Environmental Quality for response actions at the Omaha Lead Superfund Site in
Omaha, Nebraska pursuant to Section 107 of CERCLA,42 U.S.C. § 9607.
")
(
Aaron Ferer &Sons, Company "Settling Defendant does not admit and
D.
expressly denies any liability to the Plaintiffs arising out of the transactions or occurrences
alleged in the complaint.
The Parties agree, and the Court by entering this Consent Decree finds, that this
E.
Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter
will avoid prolonged and complicated litigation between the Parties, and that this Consent
Decree is fair, reasonable, and in the public interest.
THEREFORE, with the consent of the Parties to this Decree, it is ORDERED,
ADJUDGED,and DECREED:
II. JURISDICTION
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. §§ 6973, 9606,9607, and 9613(b) and also has personal
jurisdiction over the Settling Defendant. Settling Defendant consents to and shall not challenge
entry ofthis Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.
III. PARTIES BOUND
2.
This Consent Decree applies to and is binding upon the United States and the
State and upon Settling Defendant and its heirs, 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.

Consent Decree, pg. 1

IV. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Consent Decree
3.
which are defined in CERCLA or in regulations promulgated under CERCLA shall have the
meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are
used in this Consent Decree or in any appendix attached hereto, the following definitions shall
apply:
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended,42 U.S.C. §§ 9601, et seq.
"Consent Decree" or "Decree" shall mean this Consent Decree and all appendices
attached hereto (listed in Section XVI). In the event of conflict between this Consent Decree and
any appendix, this Consent Decree shall control.
"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 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 any successor
departments, agencies or instrumentalities of the United States.
"Effective Date" shall be the effective date of upon which this Consent Decree is entered
by the Court as recorded on the Court docket, or, if the Court instead issues an order approving
the Consent Decree, the date such order is recorded on the Court docket.
"EPA" shall mean the United States Environmental Protection Agency and any successor
departments, agencies or instrumentalities ofthe United States.
"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.
"NDEQ" shall mean the Nebraska Department of Environmental Quality and any
successor departments or agencies of the State.
"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, the State of Nebraska and the Settling Defendant.
"Plaintiffs" shall mean the United States and the State of Nebraska.
"RCRA" shall mean the Solid Waste Disposal Act, as amended,42 U.S.C. §§ 6901 et
seq.(also known as the Resource Conservation and Recovery Act).
"Section" shall mean a portion ofthis Consent Decree identified by a Roman numeral.
"Settling Defendant" shall mean Aaron Ferer &Sons, Company.

Consent Decree, pg. 2

"Site" shall mean the Omaha Lead Superfund Site, which encompasses approximately 27
square miles, and includes the Eastern portion ofthe greater metropolitan area in Omaha,
Nebraska, centered around downtown Omaha and which is depicted generally on the map
attached as Appendix A.
"State" shall mean the State of Nebraska.
"United States" shall mean the United States of America, including its departments,
agencies and instrumentalities.
V. STATEMENT OF PURPOSE

4.
By entering into this Consent Decree, the mutual objective of the Parties is fox
Settling Defendant to make a cash payment,to address its alleged liability for the Site as
provided in the Covenant Not to Sue by Plaintiffs in Section VIII, and subject to the Reservation
of Rights by United States in Section IX.
VI. PAYMENT OF RESPONSE COSTS

Within 30 days of entry of this Consent Decree, Settling Defendant shall pay to
5.
EPA $480,000.00.
"EFT")to the
Payment shall be made by FedWire Electronic Funds Transfer(
6.
U.S. Department ofJustice account in accordance with current EFT procedures, referencing the
Civil Case number listed above, the EPA Region and Site Spill ID Number 07ZY, and DOJ Case
Number 90-11-3-07834/3. Payment shall be made in accordance with instructions provided to
Settling Defendant by the Financial Litigation Unit of the U.S. Attorney's Office in the District
of Nebraska following lodging ofthe Consent Decree.
At the time of payment, Settling Defendant shall send notice that payment has
7.
been made to EPA and DOJ in accordance with Section XIV (Notices and Submissions).
The amount to be paid to EPA pursuant to Paragraph 5 shall be deposited in the
8.
Omaha Lead Special Account 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.
Within 30 days ofthe entry of the Consent Decree, Settling Defendant shall pay
9.
to the State $20,000.00 by official bank check made payable to Nebraska Department of
Environmental Quality. Settling Defendant shall send the bank check to Michael J. Linder,
Director Nebraska Department of Environmental Quality, Suite 400, The Atrium, 1200 N Street,
P.O. Box 98922, Lincoln, Nebraska 68509-8922.
VII. FAILURE TO COMPLY WITH CONSENT DECREE

Interest on Late Payments. If the Settling Defendant fails to make any payment
10.
under Paragraph 5 or Paragraph 9 by the required due date, Interest shall accrue on the unpaid
balance from the Effective Date through the date of payment.
11.

Stipulated Penalty.

a.
If any amounts due under Paragraph 5 or Paragraph 9 are not paid by the
required due date, Settling Defendant shall be in violation of this Consent Decree and shall pay,

Consent Decree, pg. 3

as a stipulated penalty, in addition to the interest required by Paragraph 10, the following
amounts per day for each day that such payment is late:
Penalty Per Violation Per Day
$ 1,000
$ 2,500
$ 5,000

Period of Noncompliance
1 S` through 14th day
15th through 30t" day
31St day and beyond

Stipulated penalties are due and payable within 30 days ofthe date ofthe
b.
demand for payment of the penalties by EPA or the State. All payments to EPA under this
Paragraph shall be identified as "stipulated penalties" and shall be made by certified or cashier's
check made payable to "EPA Hazardous Substance Superfund." The check, or a letter
accompanying the check, shall reference the name and address of the party making payment, the
Site name,the EPA Region and Site Spill ID Number 07ZY,and DOJ Case Number 90-11-307834/3, and shall be sent to:
U.S. Environmental Protection Agency
Superfund Payments
Cincinnati Finance Center
PO Box 979076
St. Louis, MO 63197-9000
At the time of each payment, Settling Defendant shall send notice to the
c.
United States and the State in accordance with Section XIV (Notices and Submissions)that
payment has been made.
All payments to the State under this Paragraph shall be made by official
d.
bank check made payable to Nebraska Department of Environmental Quality, in payment of
"stipulated penalties." Settling Defendant shall send the bank check to Michael J. Linder,
Director Nebraska Department of Environmental Quality, Suite 400, The Atrium, 1200 N Street,
P.O. Box 98922, Lincoln, Nebraska 68509-8922.
Penalties shall accrue as provided in this Paragraph regardless of whether
e.
EPA or the State has notified Settling Defendant ofthe 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 herein shall prevent the
simultaneous accrual of separate penalties for separate violations of this Consent Decree.
12.
If the United States or the State brings an action to enforce this Consent Decree,
Settling Defendant shall reimburse the United States and the State 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
13.
sanctions available to Plaintiffs by virtue of Settling Defendant's failure to comply with the
requirements of this Consent Decree.
Notwithstanding any other provision ofthis Section, the United States and the
14.
State of Nebraska may, in their unreviewable separate discretion, waive payment of any portion
Consent Decree, pg. 4

of the stipulated penalties that have accrued pursuant to this Consent Decree. Payment of
stipulated penalties shall not excuse Settling Defendant from payments as required by Section VI
or from performance of any other requirements ofthis Consent Decree.
VIII. COVENANT NOT TO SUE BY PLAINTIFFS
Covenant Not to Sue by United States. Except as specifically provided in Section
15.
IX (Reservation of Rights by Plaintiffs), 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), and Section 7003 of RCRA,42 U.S.C. §6973, with
regard to the Site. This covenant not to sue shall take effect upon receipt by EPA of all payments
required by Section VI(Payment of Response Costs) and any amount due under Section VII
(Failure to Comply with Consent Decree). This covenant not to sue is conditioned upon the
satisfactory performance by Settling Defendant of its obligations under this Consent Decree.
This covenant not to sue extends only to Settling Defendant and does not extend to any other
person.
Covenant Not to Sue by State of Nebraska. In consideration of and upon receipt
16.
of the payment the Settling Defendant is making pursuant to Paragraph 9, and except as
otherwise provided in Paragraph 17 below, the State of Nebraska covenants not to further sue or
to take administrative action against the Settling Defendant for reimbursennent of costs the State
has incurred for the Site and further releases and covenants not to sue the Settling Defendant for
natural resource damages related to the Site.
IX. RESERVATION OF RIGHTS BY PLAINTIFFS
The United States reserves, and this Consent Decree is without prejudice to, all
17.
rights against Settling Defendant with respect to all matters not expressly included within the
Covenant Not to Sue by United States in Paragraph 15. The State of Nebraska reserves, and this
Consent Decree is without prejudice to, all rights against Settling Defendant with respect to all
matters not expressly included within the Covenant Not to Sue by State of Nebraska in
Paragraph 16. Notwithstanding any other provision ofthis Consent Decree, the United States
and the State of Nebraska (except the State does not reserve natural resource damages claims as
described in subparagraph c. below)reserve all rights against Settling Defendant with respect to:
a.
Consent Decree;
b.

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

liability for damages for injury to, destruction of, or loss of natural
c.
resources, and for the costs of any natural resource damage assessments;
liability, based upon Settling Defendant's ownership or operation of the
d.
Site, or upon Settling Defendant's transportation, treatment, storage, or disposal, or the
arrangement for the transportation, treatment, storage, or disposal, of a hazardous substance or a
solid waste at or in connection with the Site, after signature of this Consent Decree by Settling
Defendant; and
liability arising from the past, present, or future disposal, release or threat
e.
of release of a hazardous substance, pollutant, or contaminant outside of the Site.

Consent Decree, pg. 5

X. COVENANT NOT TO SUE BY SETTLING DEFENDANT

18.
Settling Defendant covenants not to sue and agrees not to assert any claims or
causes of action against the United States or the State, or their contractors or employees, with
respect to the Site or this Consent Decree, including but not limited to:
any direct or indirect claim for reimbursement from the Hazardous
a.
Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA,42 U.S.C.
§§ 9606(b)(2), 9607,9611, 9612, or 9613, or any other provision of law;
b.
any claim arising out of response actions at or in connection with the Site,
including any claim under the United States Constitution, the Nebraska 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; or
c.
any claim against the United States pursuant to Sections 107 and 113 of
CERCLA,42 U.S.C. §§ 9607 and 9613, or state law relating to the Site.
19.
Except as provided in Paragraph 18(Waiver of Claims) and Paragraph 21
(Waiver of Claim-Splitting Defenses), these covenants not to sue shall not apply in the event the
United States or the State brings a cause of action or issues an order pursuant to the reservations
set forth in Paragraph 17(c)- (e), but only to the extent that Settling Defendant's claim arises
from the same response action or response costs that the United States or the State is seeking
pursuant to the applicable reservation.
Nothing in this Consent Decree shall be deemed to constitute approval or
20.
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).
21.
Settling Defendant agrees not to assert any CERCLA claims or causes of action
that it may have for all matters relating to the Site, including but not limited to, claims or causes
of action under Sections 107(a) and 113 of CERCLA, against any other person. This waiver
shall not apply with respect to any defense, claim, or cause of action that a Settling Defendant
may have against any person if such person asserts a claim or cause of action relating to the Site
against such Settling Defendant.
XT. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION

22.
Except as provided in Paragraph 21, 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 Decree may have under applicable law. Except as
provided in Paragraph 21, each ofthe Parties expressly reserve 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 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.
Nothing in this Consent Decree diminishes the right of the United States, pursuant to Section
-(3), to pursue any such persons to obtain
1130(2)and (3)of CERCLA,42 U.S.C. § 96130(2)
additional response costs or response action and to enter into settlements that give rise to
contribution protection pursuant to Section 1130(2).

Consent Decree, pg. 6

23.
The Parties agree, and by entering this Consent Decree this Court finds, that this
settlement constitutes ajudicially-approved settlement for purposes of Section 113(fl(2) of
CERCLA,42 U.S.C. § 96130(2), and that the Settling Defendant is entitled, as of the Effective
Date, to protection from contribution actions or claims as provided by Section 113(fl(2) of
CERCLA,or as may be otherwise provided by law,for "matters addressed" in this Consent
Decree. The "matters addressed" in this Consent Decree are all response actions taken or to be
taken and all response costs incurred or to be incurred, at or in connection with the Site, by the
United States or any other person; provided, however, that if the United States exercises rights
against the Settling Defendant under the reservations in Section IX (Reservation of Rights by
Plaintiffs), other than in Paragraphs 17(a)(claims for failure to meet a requirement ofthe
Consent Decree), or 17(b)(criminal liability), the "matters addressed" in this Consent Decree
will no longer include those response costs or response actions that are within the scope of the
exercised reservation.
24.
The Settling Defendant shall, with respect to any suit or clainn brought by it for
matters related to this Consent Decree, notify the United States and the State in writing no later
than 60 days prior to the initiation of such suit or claim. The Settling Defendant shall, with
respect to any suit or claim brought against it for matters related to this Consent Decree, notify
the United States and the State in writing within 10 days of service of the complaint or clainn
upon it. In addition, the Settling Defendant shall notify the United States and the State within 10
days of service or receipt of any Motion fox Summary Judgment, and within 10 days of 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
25.
States or the State 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 ox 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 or the State
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 Covenant Not to Sue by
Plaintiffs set forth in Section VIII.
XII. ACCESS TO INFORMATION

26.
Settling Defendant shall provide to EPA and the State, upon request, copies of all
records, reports, or information (hereinafter referred to as "records") within their possession or
control or that of their contractors or agents relating to activities at the Site or to the
implementation of this Consent Decree, including, but not limited to, sampling, analysis, chain of
custody records, manifests, trucking logs, receipts, reports, sample traffic routing,
correspondence, or other documents or information related to the Site.
27.

Confidential Business Information and Privileged Documents.

a.
Settling Defendant may assert business confidentiality claims covering
part or all ofthe records submitted to Plaintiffs 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). Records determined to be confidential by EPA will be accorded the protection
specified in 40 C.F.R. Part 2, Subpart B and by the State in accordance with Neb. Rev. Stat.
§ 84-712 et seq. If no claim of confidentiality accompanies records when they are submitted to
EPA and the State, or if EPA has notified Settling Defendant that the records are not confidential
Consent Decree, pg. 7

under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B,and Neb.
Rev. Stat. § 84-712 et seq. for the State, the public may be given access to such records without
further notice to Settling Defendant.
b.
The Settling Defendant may assert that certain records are privileged
under the attorney-client privilege or any other privilege recognized by federal law. If Settling
Defendant asserts such a privilege in lieu of providing records, they shall provide Plaintiffs with
the following: 1)the title of the record; 2)the date of the record; 3)the name and title of the
author of the record; 4)the name and title of each addressee and recipient; 5)a description of the
subject of the record; and 6)the privilege asserted. However, no records created or generated
pursuant to the requirements of this or any other settlement with the United States shall be
withheld on the grounds that they axe privileged
28.
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 records evidencing conditions at or around the Site.
XIII. RETENTION OF RECORDS
29.
Until 10 years after the entry of this Consent Decree, the Settling Defendant shall
preserve and retain all records now in its possession or control, or which come into its possession
or control, that relate in any manner to response actions taken at the Site or 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 document retention period in the preceding paragraph,
30.
Settling Defendant shall notify the United States and the State at least 90 days prior to the
destruction of any such records, and, upon request by the United States or the State, Settling
Defendant shall deliver any such records to EPA or the State. The Settling Defendant may assert
that certain records are privileged under the attorney-client privilege or any other privilege
recognized by federal law. If Settling Defendant asserts such a privilege, it shall provide
Plaintiffs with the following: 1)the title of the record; 2)the date of the record; 3)the name and
title of the author of the record; 4)the name and title of each addressee and recipient; 5)a
description of the subject of the record; and 6)the privilege asserted. However, no records
created or generated pursuant to the requirements of this or any other settlement with the United
States shall be withheld on the grounds that they are privileged.
31.
The Settling Defendant hereby certifies individually 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, reports, or information 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. Settling Defendant further certifies and Plaintiffs
acknowledge that Settling Defendant has fully complied with any and all EPA requests for
information 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.
XIV. NOTICES AND SUBMISSIONS
Whenever, under the terms of this Consent Decree, notice is required to be given
32.
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
Consent Decree, pg. 8

change to the other Parties in writing. Written notice as specified herein shall constitute
complete satisfaction of any written notice requirement ofthe Consent Decree with respect to the
United States, EPA,DOJ,the State, and the Settling Defendant. Notices required to be sent to
EPA,and not to the United States, under the terms of this Consent Decree should not be sent to
the U.S. Department of Justice.

As to the United States:

Chief, Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
Ben Franklin Station
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-11-3-07834/3

As to EPA:

Steven L. Sanders
Senior Counsel
United States Environmental Protection Agency
Region 7
901 North St" Street
Kansas City, Kansas 66101

and
Pauletta France-Isetts
EPA Project Coordinator
United States Environmental Protection Agency
Region 7
901 North 5`h Street
Kansas City, Kansas 66101
As to the Regional Financial
Management Officer:

John Phillips
United States Environmental Protection Agency
Region 7
901 North 5`" Street
Kansas City, Kansas 66101

As to the State:

David B. Haldeman
Waste Division Administrator
Nebraska Department of Environmental Quality
Suite 400, The Atrium
1200 N Street
P.O. Box 98922
Lincoln, Nebraska 68509-8922

As to the Settling Defendant:

Matthew Ferer and Whitney Ferer
Aaxon Ferer &Sons, Company
155 Ida Street

Consent Decree, pg. 9

Omaha, Nebraska 68110
Mr. Tom Culhane
Counsel for Aaron Ferer &Sons, Company
Erickson & Sederstrom, P.C.
Regency Westpointe
10330 Regency Parkway Drive Suite 100
Omaha,Nebraska 68114-3761
Mr. William T. Session
Counsel for Aaron Ferer &Sons, Company
The Session Law Firm, P.C.
2600 Grand Blvd., Suite 440
Kansas City, Missouri 64113

XV. RETENTION OF JURISDICTION

This Court shall retain jurisdiction over this matter for the purpose of interpreting
33.
and enforcing the terms of this Consent Decree.
XVI. INTEGRATION/APPENDICES

This Consent Decree and its appendices constitute the final, complete and
34.
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 appendices are attached to and incorporated into this
Consent Decree: "Appendix A" is a map ofthe Site.
XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

This Consent Decree shall be lodged with the Court for a period of not less than
35.
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 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
36.
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.
XVIII. SIGNATORIES/SERVICE

37.
The undersigned representative ofthe Settling Defendant to this Consent Decree
and the Associate Attorney General for the Environment and Natural Resources Division ofthe
Department of Justice and the Attorney General for the State, certifies that he or she is fully
authorized to enter into the terms and conditions of this Consent Decree and to execute and
legally bind such Party to this document.

Consent Decree, pg. 10

The Settling Defendant hereby agrees not to oppose entry of this Consent Decree
38.
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.
The Settling Defendant shall identify, on the attached signature page, the name,
39.
address and telephone number of an agent who is authorized to accept service of process by mail
on behalf of it 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 oz until the Court expressly declines to enter this Consent Decree.

XIX. FINAL.TUDGMENT

Upon approval and entry of this Consent Decree by the Court, this Consent
40.
Decree shall constitute a final judgment between and among the United States, the State 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 4th DAY OF February

3
x
, 2012.

s/ Richard G. Kopf
United States District Judge

Consent Decree, pg. 11

Signature Page for Consent Decree regarding the Omaha. Lead Superfund Site.

FUR THE UNITED STATES O.F AMERICA

~~ ~/~
Dae

S. Moreno
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice

Katherine A. Loyd
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
999, 18`h Street, Suite 370
.Denver, Colorado 80202

Consent Decree, pg. 12

Signature Page for Consent Decree regarding the Omaha Lead Superfund Site.

FOR THE UNITED STATES OF AMERICA

Deborah R. Gilg
United States Attorney
District of Nebraska
s/ Laurie A. Kelly
Laurie A. Kelly
Assistant United States Attorney
1620 Dodge Street, Suite 1400
Omaha, NE 68102-1506

Consent Decree, pg. 13

Consent Decree, pg. 14

Consent Decree, pg. 15

Consent Decree, pg. 16

Omaha Lead
Site Focus Area

Iowa

READ

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REDICK

24TH

APPENDIX A - SITE MAP

US
HW
Y
75

30TH

13
3

RA
DI
A

L

LOCUST

LAKE

56TH

33RD

RY
ITA
MIL

16TH

§
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29

HAMILTON

WESTERN

CUMING US 64

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T

MAPLE

BEDFORD

40TH

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FONTENELLE

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FLORENCE

AMES

WEBSTER

CALIFORNIA

US HWY 6

DOUGLAS
FARNAM

50TH

52ND

Highway 6

DODGE

27032

§
¦
¨
480

6TH

20TH

US Highway 75

ver
i Ri

32ND

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CENTER

WOOLWORTH

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36TH

LEAVENWORTH

MARTHA

16TH

VINTON

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MISSOURI

27TH

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Region 7

Q

HARRISON

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US Highway 75

24TH

1 Miles

NOTE: The Environmental Protection Agency
does not guarantee the accuracy, completeness,
or timeliness of the information shown, and
shall not be liable for any injury or loss resulting
from reliance upon the information shown.
WOSF08-001 task 12 t1 CjM July 15, 2008

Consent Decree, pg. 17

64

36TH

0.5

US HW
Y

US HWY 64

13TH

F

.
0

US H
W

Y 75

80

10TH

42ND

US HWY 275

Douglas County

Sarpy County

Pottawattamie County

BROADWAY

5