United States of America et al v. Northern States Power Company

Filing 13

CONSENT DECREE between The United States, Wisconsin, and Northern Stats Power Company. Signed by District Judge Barbara B. Crabb on 3/1/17. Associated Cases: 3:12-cv-00565-bbc, 3:17-cv-00016-bbc (jat)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
-----------------------------------x
UNITED STATES OF AMERICA and
STATE OF WISCONSIN,
Plaintiffs,
v.

17-cv-16-bbc
Civil Action No. ______
Lead Case: 12-cv-565-bbc

NORTHERN STATES POWER COMPANY,
Defendant.
-----------------------------------x

CONSENT DECREE BETWEEN THE UNITED STATES, WISCONSIN, AND
NORTHERN STATES POWER COMPANY

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TABLE OF CONTENTS
I.

BACKGROUND ........................................................................................................................ 1

II.

JURISDICTION ......................................................................................................................... 3

III.

PARTIES BOUND ..................................................................................................................... 3

IV.

DEFINITIONS ............................................................................................................................ 4

V.

GENERAL PROVISIONS ......................................................................................................... 8

VI.

PERFORMANCE OF THE WORK ........................................................................................... 9

VII.

REMEDY REVIEW ................................................................................................................. 11

VIII.

ACCESS AND INSTITUTIONAL CONTROLS .................................................................... 12

IX.

FINANCIAL ASSURANCE .................................................................................................... 15

X.

PAYMENTS FOR RESPONSE COSTS .................................................................................. 19

XI.

DISBURSEMENT OF SPECIAL ACCOUNT FUNDS .......................................................... 21

XII.

INDEMNIFICATION AND INSURANCE ............................................................................. 25

XIII.

FORCE MAJEURE .................................................................................................................. 26

XIV.

DISPUTE RESOLUTION ........................................................................................................ 28

XV.

STIPULATED PENALTIES .................................................................................................... 30

XVI.

COVENANTS BY PLAINTIFFS ............................................................................................. 33

XVII.

COVENANTS BY SETTLING DEFENDANT ....................................................................... 36

XVIII.

EFFECT OF SETTLEMENT; CONTRIBUTION ................................................................... 38

XIX.

ACCESS TO INFORMATION ................................................................................................ 40

XX.

RETENTION OF RECORDS ................................................................................................... 41

XXI.

NOTICES AND SUBMISSIONS ............................................................................................. 41

XXII.

RETENTION OF JURISDICTION .......................................................................................... 43

XXIII.

APPENDICES .......................................................................................................................... 44

XXIV.

MODIFICATION ..................................................................................................................... 44

XXV.

LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ............................................. 44

XXVI.

SIGNATORIES/SERVICE ....................................................................................................... 45

XXVII.

FINAL JUDGMENT ................................................................................................................ 45

ii

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I.

BACKGROUND

A.
The United States of America (“United States”), on behalf of the Administrator of
the United States Environmental Protection Agency (“EPA”), and the State of Wisconsin (the
“State”), at the request of the Governor of Wisconsin on behalf of the Wisconsin Department of
Natural Resources (“WDNR”), filed a complaint in this matter pursuant to Sections 106 and 107
of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”),
42 U.S.C. §§ 9606 and 9607.
B.
The United States and the State in the complaint seek, inter alia: (1)
reimbursement of costs incurred by EPA and the U.S. Department of Justice (“DOJ”) for
response actions at the Ashland/Northern States Power Lakefront Superfund Site in Ashland,
Wisconsin (“Site”), together with accrued interest; and (2) performance of response actions by
Northern States Power Company, a Wisconsin Corporation (“Settling Defendant”) at the Site
consistent with the National Contingency Plan, 40 C.F.R. Part 300 (“NCP”).
C.
In accordance with the NCP and Section 121(f)(1)(F) of CERCLA, 42 U.S.C.
§ 9621(f)(1)(F), EPA notified the State of negotiations with potentially responsible parties
(“PRPs”) regarding the implementation of the remedial design and remedial action (“RD/RA”)
for the Site, and the States has participated in such negotiations and elected to be a party to this
Consent Decree (“Consent Decree”).
D.
By signing this Consent Decree, Settling Defendant does not admit any liability to
Plaintiffs arising out of the 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.
E.
Settling Defendant brought suit for matters related to this Consent Decree in the
case titled Northern States Power Company v. City of Ashland, Wisconsin, et. al., No. 12-cv-602
(W.D. Wisc.). The decision is available at Northern States Power Company v. City of Ashland,
131 F. Supp. 3d 802 (W.D. Wis. 2015).
F.
Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Site on
the National Priorities List (NPL), set forth at 40 C.F.R. Part 300, Appendix B, by publication in
the Federal Register on September 5, 2002, 67 Fed. Reg. 56,757-56,765.
G.
In response to a release or a substantial threat of a release of a hazardous
substance(s) at or from the Site, EPA and Settling Defendant commenced on November 14,
2003, a Remedial Investigation and Feasibility Study (“RI/FS”) for the Site pursuant to 40 C.F.R.
§ 300.430. Settling Defendant completed a Remedial Investigation (“RI”) Report on February 5,
2008, and completed a Feasibility Study (“FS”) Report on December 4, 2008.
H.
Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice of
the completion of the FS and of the proposed plan for remedial action on June 1, 2009, in a
major local newspaper of general circulation. EPA provided an opportunity for written and oral
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comments from the public on the proposed plan for remedial action. A copy of the transcript of
the public meeting is available to the public as part of the administrative record upon which the
Director of the Superfund Division, EPA Region 5, based the selection of the response action.
I.
The decision by EPA on the remedial action to be implemented at the Site is
embodied in a final Record of Decision (“ROD”), executed on September 30, 2010, on which the
State has given its concurrence. The ROD includes EPA’s explanation for any significant
differences between the final plan and the proposed plan as well as a responsiveness summary to
the public comments. Notice of the final plan was published in accordance with Section 117(b)
of CERCLA, 42 U.S.C. § 9617(b).
J.
The Site includes four inter-related areas of concern: 1) sediments in
Chequamegon Bay; 2) soil and shallow groundwater in Kreher Park; 3) soil and shallow
groundwater in the Upper Bluff/Filled Ravine; and 4) deep groundwater in the Copper Falls
Aquifer. This Consent Decree addresses the remedial design and remedial action for the
sediments in the Chequamegon Bay portion of the Site (“Phase 2 Project Area”). Settling
Defendant is already performing the remedy selected in the ROD for the soil and groundwater
portions of the Site (items 2-4, above) under the terms of a consent decree entered on October
19, 2012 in the case United States v. Northern States Power Co., No. 12-cv-00565 (“Phase 1
Consent Decree”). The Phase 1 Consent Decree also resolved claims for Natural Resource
Damages as to Settling Defendant and Settling Defendant’s Related Parties for the entire Site,
including the portion of Chequamegon Bay within the Site, as set forth in the Phase 1 Consent
Decree. The parties anticipate that this Consent Decree will be the final Consent Decree for the
Site as to Settling Defendant, and that this Consent Decree will resolve Settling Defendant’s
liability at the Site except as set forth in Section XVIII.
K.
The ROD selected a combination of dry excavation and wet dredging (called
option SED-6 in the ROD) as the sediment remedy for the Phase 2 Project Area. The ROD also
provided the option of remediating all of the contaminated sediments within the Phase 2 Project
Area boundaries using wet dredging, if the results of a wet dredge pilot study (“Pilot Study”)
demonstrate that a wet dredge remedy can meet performance standards and be successfully
performed in the near-shore area.
L.
On July 15, 2015, EPA and Settling Defendant entered into an Administrative
Settlement Agreement and Order on Consent for Construction of Breakwater (“Breakwater
AOC”) to construct a breakwater to provide wave attenuation and containment for the portion of
the Site where dredge activities will take place during the Pilot Study and full-scale dredge.
Construction of the breakwater was completed in late 2015.
M.
In the summer of 2016, Settling Defendant conducted the Pilot Study and
demonstrated that wet dredging can be used to successfully remediate the near-shore sediment at
the Phase 2 Project Area. In accordance with the ROD, EPA published an Explanation of
Significant Differences (“ESD”) dated December 2016, determining that wet dredging, instead
of dry excavation, may be performed for the near-shore sediments, as further described in the
Statement of Work and the approved Remedial Design Work Plan.
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N.
Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j), the
remedy set forth in the ROD and the Work to be performed by Settling Defendant shall
constitute a response action taken or ordered by the President for which judicial review shall be
limited to the administrative record.
O.
The Parties recognize, and the Court by entering this Consent Decree finds, that
this Consent Decree has been negotiated by the Parties in good faith and implementation of this
Consent Decree will expedite the cleanup of the Site and will avoid prolonged and complicated
litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public
interest.
NOW, THEREFORE, it is hereby 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. §§ 9606, 9607, and 9613(b). This Court 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 Court’s jurisdiction to enter and enforce this Consent
Decree.

III.

PARTIES BOUND

2.
This Consent Decree is binding upon the United States and the State and upon
Settling Defendant and its successors and assigns. Any change in ownership or corporate or other
legal status of a Settling Defendant including, but not limited to, any transfer of assets or real or
personal property, shall in no way alter such Settling Defendant’s responsibilities under this
Consent Decree.
3.
Settling Defendant shall provide a copy of this Consent Decree to each contractor
hired to perform the Work 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 of
the Work in conformity with the terms of this Consent Decree. Settling Defendant or its
contractors shall provide written notice of the Consent Decree to all subcontractors hired to
perform any portion of the Work. Settling Defendant shall nonetheless be responsible for
ensuring that its contractors and subcontractors perform the Work in accordance with the terms
of 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
Settling Defendant within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C.
§ 9607(b)(3).

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IV.

DEFINITIONS

4.
Unless otherwise expressly provided in this Consent Decree, 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. Whenever terms
listed below are used in this Consent Decree or its appendices, the following definitions shall
apply solely for purposes of this Consent Decree:
“Affected Property” shall mean all real property at the Site and any other real property
where EPA determines, at any time, that access, land, water, or other resource use restrictions,
and/or ICs are needed to implement the Remedial Action.
“Ashland/Northern States Power Special Account” shall mean the special account, within
the EPA Hazardous Substances Superfund, established for the Site (Site ID B5 N5) by EPA
pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).
“Ashland/Northern States Power Disbursement 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), and ¶ 39 (Creation of
Ashland/Northern States Power Disbursement Special Account).
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §§ 9601-9675.
“Consent Decree” shall mean this Consent Decree and all appendices attached hereto
(listed in Section XXIII). In the event of conflict between this Consent Decree and any appendix,
this 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.
“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 deliverables submitted
pursuant to this Consent Decree, in overseeing implementation of the Work, or otherwise
implementing, overseeing, or enforcing this Consent Decree, including, but not limited to,
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payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant to ¶ 11
(Emergencies and Releases), ¶ 12 (Community Involvement) (including the costs of any
technical assistance grant under Section 117(e) of CERCLA, 42 U.S.C. § 9617(e)), ¶ 31 (Access
to Financial Assurance), Section VII (Remedy Review), Section VIII (Access and Institutional
Controls) (including the cost of attorney time and any monies paid to secure access and/or to
secure, implement, monitor, maintain, or enforce Institutional Controls including the amount of
just compensation), Section XIV (Dispute Resolution), WDNR costs billed to EPA by agreement
between WDNR and EPA, and all litigation costs. Future Response Costs shall also include all
Interim Response Costs, and all Interest on those Past Response Costs Settling Defendant has
agreed to pay under this Consent Decree that has accrued pursuant to 42 U.S.C. § 9607(a) during
the period from October 31, 2015, to the Effective Date.
“Institutional Controls” or “ICs” shall mean restrictions, limitations, or other conditions
or action taken under state laws or local laws, regulations, ordinances, zoning restrictions, or
other governmental controls or notices to ensure that conditions at the Phase 2 Project Area, and
the rest of the Site to the extent described in Section VIII, remain protective of public health,
safety, and welfare and the environment, including, but not limited, to WIS. STAT. § 292.12, that
may also: (a) limit land, water, and/or resource use to minimize the potential for human exposure
to Waste Material at the Site; (b) limit land, water, and/or resource use to implement, ensure noninterference with, or ensure the protectiveness of the Phase 2 Remedial Action; (c) provide
information intended to modify or guide human behavior at the Phase 2 Project Area, and the
rest of the Site to the extent described in Section VIII; and/or (d) require easements or covenants
running with the land that (i) limit land, water, or resource use and/or provide access rights and
(ii) are created pursuant to common law or statutory law by an instrument that is recorded by the
owner in the appropriate land records office (which has commonly been referred to as
“Proprietary Controls” by EPA).
“Institutional Control Implementation and Assurance Plan” or “ICIAP” shall mean the
plan for implementing, maintaining, monitoring, and reporting on the Institutional Controls set
forth in the ROD, prepared in accordance with the statement of work (“SOW”).
“Interest” shall mean interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund, 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. Rates are
available online at http://www2.epa.gov/superfund/superfund-interest-rates.
“Interim Response Costs” shall mean all costs, including, but not limited to, direct and
indirect costs, (a) paid by the United States in connection with the Site between October 31,
2015, and the Effective Date, or (b) incurred prior to the Effective Date but paid after that date.
“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.

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“Operation and Maintenance” or “O&M” shall mean all activities required to operate,
maintain, and monitor the effectiveness of the Phase 2 Remedial Action as required under the
Operation and Maintenance Plan approved or developed by EPA pursuant to the SOW, and
maintenance, monitoring, and enforcement of Institutional Controls as provided in the ICIAP.
“Paragraph” or “¶” 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 Wisconsin, and Settling Defendant.
“Past Response Costs” shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States paid at or in connection with the Site through October 31,
2015, plus Interest on all such costs that has accrued pursuant to 42 U.S.C. § 9607(a) through
such date.
“Phase 1 Consent Decree” shall mean the consent decree entered on October 19, 2012 in
the case United States v. Northern States Power Co., No. 12-cv-00565.
“Phase 1 Project Area” shall mean that area of the Site generally comprising Kreher Park;
the Upper Bluff/Filled Ravine; and the Copper Falls Aquifer. The Phase 1 Project Area
comprises the entire Site except for the portion of Chequamegon Bay within the Site boundary.
“Phase 2 Performance Standards” shall mean the cleanup standards for sediments in the
Phase 2 Remedial Action, as set forth in the ROD, the ESD, the SOW, and the design plans and
specifications developed and approved by EPA in accordance with the SOW. The Phase 2
Performance Standards for sediments shall be established to achieve: (i) the Remedial Action
Objectives (“RAOs”) described in Section 8.0 of the ROD; (ii) the performance standards for
selected sediment remedy described in Section 12.3 of the ROD or described in the ESD; and
(iii) any ARARs identified in Appendix C of the ROD and that are identified during the Phase 2
Remedial Design.
“Phase 2 Project Area” shall mean that area of the Site located in Chequamegon Bay, and
depicted in Appendix A.
“Phase 2 Remedial Action” shall mean the remedial action selected for the sediments in
Chequamegon Bay by the EPA in accordance with the ROD.
“Phase 2 Remedial Design” shall mean those activities necessary to develop final plans
and specifications for the Phase 2 Remedial Action as stated in the SOW.
“Plaintiffs” shall mean the United States and the State of Wisconsin.
“RCRA” shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also known
as the Resource Conservation and Recovery Act).
“Record of Decision” or “ROD” shall mean the EPA Record of Decision relating to the
Site signed on September 30, 2010, by the Director of the Superfund Division, EPA Region 5,
and all attachments thereto. The ROD was filed with the Court in United States v. Northern
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States Power Co., No. 12-cv-00565 (W.D. Wisc.), Doc. No. 2, and is available on the EPA
website at http://dnr.wi.gov/topic/brownfields/Ashland.html.
“Section” shall mean a portion of this Consent Decree identified by a Roman numeral.
“Settling Defendant” shall mean Northern States Power Company, a Wisconsin
corporation.
“Settling Defendant’s Related Parties” shall mean: (i) all parents, subsidiaries, and
affiliates of Settling Defendant (including, but not limited to, Xcel Energy, Inc., a Minnesota
corporation; Xcel Energy Services, Inc., a Delaware corporation; Northern States Power
Company, a Minnesota corporation; Southwestern Public Service Company, a New Mexico
corporation; and Public Service Company of Colorado, a Colorado corporation), but only to the
extent that the alleged liability of such person is based on the alleged liability of the Settling
Defendant; and (ii) the former or current officers, directors, employees, general partners, limited
partners, members, or shareholders of Settling Defendant and of any entity included in clause (i)
of this Paragraph, but only to the extent that the alleged liability of such person is based on acts
and/or omissions which occurred within the scope of the person’s employment or capacity as an
officer, director, employee, general partner, limited partner, member, or shareholder of the
Settling Defendant or of any entity included in clause (i) of this Paragraph.
“Site” shall mean the Ashland/Northern States Power Lakefront Site, located in Ashland,
Ashland County, Wisconsin, and depicted generally on the map attached as Appendix A. The
Site consists of both the Phase 2 Project Area and the Phase 1 Project Area.
“State” shall mean the State of Wisconsin and each department, agency, and
instrumentality of the State of Wisconsin, including WDNR.
“Statement of Work” or “SOW” shall mean the document describing the activities
Settling Defendant must perform to implement the Phase 2 Remedial Design and the Phase 2
Remedial Action regarding the Site. The SOW is attached hereto as Appendix B.
“Supervising Contractor” shall mean the principal contractor retained by Settling
Defendant to supervise and direct the implementation of the Work under this Consent Decree.
“Transfer” shall mean to sell, assign, convey, lease, mortgage, or grant a security interest
in, or where used as a noun, a sale, assignment, conveyance, or other disposition of any interest
by operation of law or otherwise.
“United States” shall mean the United States of America and each department, agency,
and instrumentality of the United States, including EPA.
“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) of
CERCLA, 42 U.S.C. § 9601(33); (3) any “solid waste” under Section 1004(27) of RCRA,
42 U.S.C.§ 6903(27), or WIS. STAT. § 289.01(33); and (4) any “hazardous substance” under
WIS. STAT. § 292.01(5).
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“WDNR” shall mean the Wisconsin Department of Natural Resources and its successor
departments, agencies, or instrumentalities.
“WDNR Database” shall mean the publicly accessible database available on the internet
as required by WIS. STAT. §§ 292.12, 292.31, and 292.57. The WDNR Database is accessible
at http://dnr.wi.gov/botw/SetUpBasicSearchForm.do.
“Work” shall mean all activities and obligations Settling Defendant is required to perform
under this Consent Decree, except the activities required under Section XX (Retention of
Records) and as limited by Paragraph 85.

V.

GENERAL PROVISIONS

5.
Objectives of the Parties. The objectives of the Parties in entering into this
Consent Decree are to protect public health or welfare or the environment by the design and
implementation of response actions at the Phase 2 Project Area by Settling Defendant, to pay
response costs incurred by Plaintiffs with respect to the Site, and to resolve the claims of
Plaintiffs 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, the ROD, and all deliverables
developed by Settling Defendant and approved or modified by EPA pursuant to this Consent
Decree. Settling Defendant shall pay the United States for its response costs as provided in this
Consent Decree.
7.
Compliance with Applicable Law. Nothing in this Consent Decree limits
Settling Defendant’s obligations to comply with the requirements of all applicable federal, state,
and local laws and regulations. Settling Defendant must also comply with all applicable or
relevant and appropriate requirements of all federal and state environmental laws as set forth in
the ROD and the SOW. The activities conducted pursuant to this Consent Decree, if approved by
EPA, shall be deemed to be consistent with the NCP as provided in Section 300.700(c)(3)(ii) of
the NCP.
8.

Permits.

a.
As provided in Section 121(e) of CERCLA, 42 U.S.C. § 9621(e), and
Section 300.400(e) of the NCP, no permit shall be required for any portion of the Work
conducted entirely on-site (i.e., within the areal extent of contamination or in very close
proximity to the contamination and necessary for implementation of the Work). Where any
portion of the Work that is not on-site requires a 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.
Settling Defendant may seek relief under the provisions of Section XIII
(Force Majeure) for any delay in the performance of the Work resulting from a failure to obtain,
or a delay in obtaining, any permit or approval referenced in ¶ 8.a and required for the Work,

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provided that it has submitted timely and complete applications and taken all other actions
necessary to obtain all such permits or approvals.
c.
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.
9.

PERFORMANCE OF THE WORK

Coordination and Supervision.
a.

Project Coordinators.

(1)
Settling Defendant’s Project Coordinator must have sufficient
technical expertise to coordinate the Work. Settling Defendant’s Project Coordinator may
not be an attorney representing Settling Defendant in this matter and may not act as the
Supervising Contractor. Settling Defendant’s Project Coordinator may assign other
representatives, including other contractors, to assist in coordinating the Work.
(2)
EPA shall designate and notify the Settling Defendant of its Project
Coordinator[s] and Alternate Project Coordinator[s]. EPA may designate other
representatives, which may include its employees, contractors and/or consultants, to
oversee the Work. EPA’s Project Coordinator/Alternate Project Coordinator will have the
same authority as a remedial project manager and/or an on-scene coordinator, as
described in the NCP. This includes the authority to halt the Work and/or to conduct or
direct any necessary response action when he or she determines that conditions at the Site
constitute an emergency or may present an immediate threat to public health or welfare or
the environment due to a release or threatened release of Waste Material.
(3)
The State shall designate and notify EPA and the Settling
Defendant of its Project Coordinator[s] and Alternate Project Coordinator[s]. The State
may designate other representatives, including its employees, contractors and/or
consultants to oversee the Work. For any meetings and inspections in which EPA’s
Project Coordinator participates, the State’s Project Coordinator also may participate.
Settling Defendant shall notify the State reasonably in advance of any such meetings or
inspections.
(4)
Settling Defendant’s Project Coordinators shall meet with EPA’s
and the State’s Project Coordinator[s] at least monthly.
b.
Supervising Contractor. Settling Defendant’s proposed Supervising
Contractor must have a quality assurance system that complies with ANSI/ASQC E4-2004,
Quality Systems for Environmental Data and Technology Programs: Requirements with
Guidance for Use (American National Standard).

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c.

Procedures for Disapproval/Notice to Proceed.

(1)
Settling Defendant shall designate, and notify EPA, within 10 days
after the Effective Date, of the names, contact information, and qualifications of the
Settling Defendant’s proposed Project Coordinator and Supervising Contractor.
(2)
EPA, after a reasonable opportunity for review and comment by
the State, shall issue notices of disapproval and/or authorizations to proceed regarding the
proposed Project Coordinator and Supervising Contractor, as applicable. If EPA issues a
notice of disapproval, Settling Defendant shall, within 30 days, submit to EPA a list of
supplemental proposed Project Coordinators and/or Supervising Contractors, as
applicable, including a description of the qualifications of each. EPA shall issue a notice
of disapproval or authorization to proceed regarding each supplemental proposed
coordinator and/or contractor. Settling Defendant may select any coordinator/contractor
covered by an authorization to proceed and shall, within 21 days, notify EPA of Settling
Defendant’s selection.
(3)
Settling Defendant may change its Project Coordinator and/or
Supervising Contractor, as applicable, by following the procedures of ¶¶ 9.c(1)
and 9.c(2).
10.
Performance of Work in Accordance with SOW. Settling Defendant shall: (a)
develop the Phase 2 Remedial Design; (b) perform the Phase 2 Remedial Action; and (c) operate,
maintain, and monitor the effectiveness of the Phase 2 Remedial Action; all in accordance with
the SOW and all EPA-approved, conditionally-approved, or modified deliverables as required by
the SOW. All deliverables required to be submitted for approval under the Consent Decree or
SOW shall be subject to approval by EPA in accordance with ¶ 6.6 (Approval of Deliverables) of
the SOW.
11.
Emergencies and Releases. Settling Defendant shall comply with the emergency
and release response and reporting requirements under ¶ 4.3 (Emergency Response and
Reporting) of the SOW. Subject to Section XVI (Covenants by Plaintiffs), nothing in this
Consent Decree, including ¶ 4.3 of the SOW, limits any authority of Plaintiffs: (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. If, due to Settling Defendant’s failure to take appropriate
response action under ¶ 4.3 of the SOW, EPA or, as appropriate, the State takes such action
instead, Settling Defendant shall reimburse EPA and the State under Section X (Payments for
Response Costs) for all costs of the response action.
12.
Community Involvement. If requested by EPA or WDNR, Settling Defendant
shall conduct community involvement activities under EPA’s oversight as provided for in, and in
accordance with, the SOW. Such activities may include, but are not limited to, designation of a
Community Involvement Coordinator. Costs incurred by the United States under this Section
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constitute Future Response Costs to be reimbursed under Section X (Payments for Response
Costs).
13.

Modification of SOW or Related Deliverables.

a.
If EPA, after consultation with WDNR, determines that it is necessary to
modify the work specified in the SOW and/or in deliverables developed under the SOW in order
to achieve and/or maintain the Phase 2 Performance Standards or to carry out and maintain the
effectiveness of the Phase 2 Remedial Action, and such modification is consistent with the Scope
of the Remedy set forth in ¶ 1.3 of the SOW then EPA may notify Settling Defendant of such
modification. If Settling Defendant objects to the modification it may, within 30 days after
EPA’s notification, seek dispute resolution under Section XIV.
b.
The SOW and/or related work plans shall be modified: (1) in accordance
with the modification issued by EPA; or (2) if Settling Defendant invokes dispute resolution, in
accordance with the final resolution of the dispute. The modification shall be incorporated into
and enforceable under this Consent Decree, and Settling Defendant shall implement all work
required by such modification. Settling Defendant shall incorporate the modification into the
deliverable required under the SOW, as appropriate.
c.
Nothing in this Paragraph shall be construed to limit EPA’s authority to
require performance of further response actions as otherwise provided in this Consent Decree.
14.
Nothing in this Consent Decree, the SOW, or any deliverable required under the
SOW constitutes a warranty or representation of any kind by Plaintiffs that compliance with the
work requirements set forth in the SOW or related deliverable will achieve the Phase 2
Performance Standards.

VII.

REMEDY REVIEW

15.
Periodic Review. Settling Defendant shall conduct, in accordance with ¶ 4.6
(Periodic Review Support Plan) of the SOW, studies and investigations to support EPA’s
reviews under Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and applicable regulations, of
whether the Phase 2 Remedial Action is protective of human health and the environment,
provided, however, that no five year remedy review shall be required under this Consent Decree
in the event that the remedial action permits unlimited use and unrestricted exposure of the Phase
2 Project Area within the meaning of the NCP at Part 300.430(f)(4)(ii).
16.
EPA Selection of Further Response Actions. If EPA after consultation with
WDNR, determines, at any time, that the Phase 2 Remedial Action is not protective of human
health and the environment, EPA may select further response actions for the Site in accordance
with the requirements of CERCLA and the NCP.
17.
Opportunity to Comment. Settling Defendant and, if required by
Section 113(k)(2) or 117 of CERCLA, 42 U.S.C. § 9613(k)(2) or 9617, the public, will be
provided with an opportunity to comment on any further response actions proposed by EPA as a

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result of the review conducted pursuant to Section 121(c) of CERCLA, 42 U.S.C. 9621(c), and to
submit written comments for the record during the comment period.
18.
Settling Defendant’s Obligation to Perform Further Response Actions. If
EPA selects further response actions relating to the Site, EPA may require Settling Defendant to
perform such further response actions, but only to the extent that the reopener conditions in ¶ 74
or 75 (United States’ Pre- and Post-Certification Reservations) are satisfied. Settling Defendant
may invoke the procedures set forth in Section XIV (Dispute Resolution) to dispute (a) EPA’s
determination that the reopener conditions of ¶ 74 or 75 are satisfied, (b) EPA’s determination
that the Phase 2 Remedial Action is not protective of human health and the environment, or
(c) EPA’s selection of the further response actions. Disputes regarding EPA’s determination that
the Phase 2 Remedial Action is not protective or EPA’s selection of further response actions
shall be resolved pursuant to ¶ 57 (Record Review).
19.
Submission of Plans. If Settling Defendant is required to perform further
response actions pursuant to ¶ 18, it shall submit a plan for such response action to EPA for
approval in accordance with the procedures of Section VI (Performance of the Work). Settling
Defendant shall implement the approved plan in accordance with this Consent Decree.

VIII. ACCESS AND INSTITUTIONAL CONTROLS
20.
The Parties acknowledge that Settling Defendant has executed access agreements
with the City of Ashland and Wisconsin Central, Ltd. (the relevant portions of which are
included in Appendix C), which currently satisfy Settling Defendant’s obligations to obtain
access to properties owned by or in the possession of the City of Ashland and Wisconsin Central,
Ltd.
21.
Access and Institutional Controls. In the event that the City of Ashland and/or
Wisconsin Central Ltd., revoke or otherwise limit the access provided by the already-executed
agreements, or should additional access become necessary, Settling Defendant shall, with respect
to any Non-Settling Owner’s Affected Property use best efforts to secure from such Non-Settling
Owner an agreement, enforceable by Settling Defendant and by Plaintiffs, providing that such
Non-Settling Owner: (i) provide Plaintiffs and the Settling Defendant, and their representatives,
contractors, and subcontractors with access at all reasonable times to such Affected Property to
conduct any activity regarding the Consent Decree, including those listed in ¶ 21.a; and (ii)
refrain from using such Affected Property in any manner that EPA or WDNR determines will
pose an unacceptable risk to human health or to the environment due to exposure to Waste
Material, or interfere with or adversely affect the implementation, integrity, or protectiveness of
the Remedial Action.

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a.
Access Requirements. The following is a list of activities for which
access is required regarding the Affected Property:
(1)

Monitoring the Work;

(2)

Verifying any data or information submitted to the United States or

(3)

Conducting investigations regarding contamination at or near the

(4)

Obtaining samples;

the State;
Site;

(5)
Assessing the need for, planning, or implementing additional
response actions at or near the Site;
(6)
Assessing implementation of quality assurance and quality control
practices as defined in the approved construction quality assurance quality control plan as
provided in the SOW;
(7)
(Work Takeover);

Implementing the Work pursuant to the conditions set forth in ¶ 79

(8)
Inspecting and copying records, operating logs, contracts, or other
documents maintained or generated by Settling Defendant or its agents, consistent with
Section XIX (Access to Information);
(9)

Assessing Settling Defendant’s compliance with the Consent

Decree; and
(10) Determining whether the Affected Property is being used in a
manner that is prohibited or restricted, or that may need to be prohibited or restricted
under the Consent Decree.
(11) Implementing, monitoring, maintaining, reporting on, and
enforcing any Institutional Controls and the requirements of the ICIAP.
22.
Access to State-Owned or Controlled Lands. The State shall provide Settling
Defendant and EPA and their representatives, including contractors, with access at all reasonable
times to that portion of the Site owned or controlled by the State to conduct any activity related
to this Consent Decree.
23.
Institutional Controls. If EPA, or WDNR, determines in a decision document
prepared in accordance with the NCP that Institutional Controls in the form of state or local laws,
regulations, ordinances, zoning restrictions, or other governmental controls or notices are
needed, Settling Defendant shall:

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a.
Assist in the execution of Institutional Controls, in accordance with the
Institutional Controls and Implementation and Assurance Plan under the SOW, and the
continuing obligations imposed in accordance with Ch. 292, Wis. Stat., which can be included in
the WDNR Database, that (i) grant a right of access to conduct any activity regarding the
Consent Decree including, but not limited to, those activities listed in Paragraph 21.a, and (ii)
grant the right to enforce the land/water use restrictions set forth in Paragraph 21, including, but
not limited to, the specific restrictions listed in the ICIAP, and/or continuing obligations imposed
in accordance with Ch. 292, Wis. Stat. The Institutional Controls shall be imposed by one or
more of the following persons, as determined by EPA or WDNR: (i) the United States, on behalf
of EPA, and its representatives, (ii) the State and its representatives, and/or (iii) appropriate
owners, lessees and grantees. The Institutional Controls shall include a designation that EPA,
WDNR and Settling Defendant as appropriate, are third party beneficiaries. EPA and/or WDNR
shall maintain the right to enforce the Institutional Controls without acquiring an interest in real
property. Settling Defendant shall monitor, maintain, and report on Institutional Controls if any
Institutional Controls are imposed, provided that the property owner or occupier is in compliance
with Ch. 292.12(5m)(ar), Wis. Stat.
b.
Provide notification to such persons of pending imposition of any
applicable Institutional Controls for those properties, and placement of the relevant information
in the WDNR Database.
c.
Within 15 days of the approval and acceptance of the Phase 2 Remedial
Action Work Plan and issuance of an approval letter to Settling Defendant incorporating
Institutional Controls, WDNR shall place any applicable Institutional Controls in the WDNR
Database.
d.
Should EPA and WDNR determine that any applicable Institutional
Controls require modification, Settling Defendant shall draft and finalize revised Institutional
Controls as requested by EPA and WDNR. Upon request by EPA or WDNR, Settling Defendant
shall use “best efforts” to execute and record easements or covenants running with the land that
(a) limit land, water, or resource use and/or provide access rights and (b) are created pursuant to
common law or statutory law by an instrument that is recorded by the owner in the appropriate
land records office.
24.
Best Efforts. As used in this Section, “best efforts” means the efforts that a
reasonable person in the position of Settling Defendant would use so as to achieve the goal in a
timely manner, including the cost of employing professional assistance and the payment of
reasonable sums of money to secure access, agreements, releases, subordinations, modifications,
or relocations of Prior Encumbrances that affect the title to the Affected Property, as applicable.
“Best efforts” shall not, however, include payment of money to any party that has received
special notice of potential liability related to the Site, or the payment of money to the State. If
Settling Defendant is unable to accomplish what is required through “best efforts” in a timely
manner, it shall notify Plaintiffs, and include a description of the steps taken to comply with the
requirements. If Plaintiffs deem it appropriate, they may assist Settling Defendant, or take
independent action, in obtaining such Institutional Controls, agreements, releases,
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subordinations, modifications, or relocations of Prior Encumbrances that affect the title to the
Affected Property, as applicable. All costs incurred by Plaintiffs in providing such assistance or
taking such action, including the cost of attorney time and the amount of monetary consideration
or just compensation paid, constitute Future Response Costs to be reimbursed under Section X
(Payments for Response Costs).
25.
In the event of any Transfer of the Affected Property, unless the United States and
WDNR otherwise consent in writing, Settling Defendant shall continue to comply with its
obligations under the Consent Decree, including its obligation to provide and/or secure access, to
implement, maintain, monitor, and report on Institutional Controls as described in Paragraph
23.a, and to abide by such Institutional Controls to the extent applicable to Settling Defendant.
26.
Notwithstanding any provision of the Consent Decree, Plaintiffs retain all of their
access authorities and rights, as well as all of their rights to require Institutional Controls,
including enforcement authorities related thereto, under CERCLA, RCRA, and any other
applicable statute or regulations.

IX.

FINANCIAL ASSURANCE

27.
In order to ensure completion of the Work, Settling Defendant shall secure
financial assurance, initially in the amount of $42,000,000 (“Estimated Cost of the Work”), for
the benefit of EPA. The financial assurance must be one or more of the mechanisms listed below,
in a form substantially identical to the relevant sample documents available from the “Financial
Assurance” category on the Cleanup Enforcement Model Language and Sample Documents
Database at http://cfpub.epa.gov/compliance/models/, and satisfactory to EPA. Settling
Defendant may use multiple mechanisms if they are limited to surety bonds guaranteeing
payment, letters of credit, trust funds, and/or insurance policies.
a.
A surety bond guaranteeing payment and/or performance of the Work that
is issued by a surety company among those listed as acceptable sureties on federal bonds as set
forth in Circular 570 of the U.S. Department of the Treasury;
b.
An irrevocable letter of credit, payable to or at the direction of EPA, that is
issued by an entity that has the authority to issue letters of credit and whose letter-of-credit
operations are regulated and examined by a federal or state agency;
c.
A trust fund established for the benefit of EPA that is administered by a
trustee that has the authority to act as a trustee and whose trust operations are regulated and
examined by a federal or state agency;
d.
A policy of insurance that provides EPA with acceptable rights as a
beneficiary thereof and that is issued by an insurance carrier that has the authority to issue
insurance policies in the applicable jurisdiction(s) and whose insurance operations are regulated
and examined by a federal or state agency;
e.
A demonstration by Settling Defendant that it meets the relevant financial
test criteria of 40 C.F.R. § 264.143(f) and reporting requirements of this Section for the sum of
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the Estimated Cost of the Work and the amounts, if any, of other federal, state, or tribal
environmental obligations financially assured through the use of a financial test or guarantee,
accompanied by a standby funding commitment, which obligates Settling Defendant to pay
funds to or at the direction of EPA, up to the amount financially assured through the use of this
demonstration in the event of a Work Takeover; or
f.
A guarantee to fund or perform the Work executed in favor of EPA by one
of the following: (1) a direct or indirect parent company of Settling Defendant; or (2) a company
that has a “substantial business relationship” (as defined in 40 C.F.R. § 264.141(h)) with Settling
Defendant; provided, however, that any company providing such a guarantee must demonstrate
to EPA’s satisfaction that it meets the relevant financial test criteria of 40 C.F.R. § 264.143(f)
and reporting requirements of this Section for the sum of the Estimated Cost of the Work and the
amounts, if any, of other federal, state, or tribal environmental obligations financially assured
through the use of a financial test or guarantee.
28.
Settling Defendant has selected, and EPA has found satisfactory, as an initial
financial assurance a demonstration pursuant to ¶ 27.f in the form attached as Appendix D.
Within 30 days after the Effective Date, Settling Defendant shall secure all executed and/or
otherwise finalized mechanisms or other documents consistent with the form of financial
assurance attached as Appendix D and shall submit such mechanisms and documents to the EPA
Regional Financial Management Officer, to the United States, EPA, and the State as specified in
Section XXI (Notices and Submissions). Settling Defendant must, within 30 days of the
Effective Date:
a.

Demonstrate that:
(1)

the affected Settling Defendant or guarantor has:
1.

Two of the following three ratios: a ratio of total liabilities
to net worth less than 2.0; a ratio of the sum of net income
plus depreciation, depletion, and amortization to total
liabilities greater than 0.1; and a ratio of current assets to
current liabilities greater than 1.5; and

2.

Net working capital and tangible net worth each at least six
times the sum of the Estimated Cost of the Work and the
amounts, if any, of other federal, state, or tribal
environmental obligations financially assured through the
use of a financial test or guarantee; and

3.

Tangible net worth of at least $10 million; and

4.

Assets located in the United States amounting to at least
90 percent of total assets or at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of
other federal, state, or tribal environmental obligations
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financially assured through the use of a financial test or
guarantee; or
(2)

The affected Settling Defendant or guarantor has:
1.

A current rating for its senior unsecured debt of AAA, AA,
A, or BBB as issued by Standard and Poor’s or Aaa, Aa, A
or Baa as issued by Moody’s; and

2.

Tangible net worth at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of
other federal, state, or tribal environmental obligations
financially assured through the use of a financial test or
guarantee; and

3.

Tangible net worth of at least $10 million; and

4.

Assets located in the United States amounting to at least
90 percent of total assets or at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of
other federal, state, or tribal environmental obligations
financially assured through the use of a financial test or
guarantee; and

b.
Submit to EPA for the affected Settling Defendant or guarantor: (1) a copy
of an independent certified public accountant’s report of the entity’s financial statements for the
latest completed fiscal year, which must not express an adverse opinion or disclaimer of opinion;
and (2) a letter from its chief financial officer and a report from an independent certified public
accountant substantially identical to the sample letter and reports available from EPA or under
the “Financial Assurance - Settlements” subject list category on the Cleanup Enforcement Model
Language and Sample Documents Database at https://cfpub.epa.gov/compliance/models/.
29.

Settling Defendant must also:

a.
Annually resubmit the documents described in ¶ 28.b within 90 days after
the close of the affected Respondent’s or guarantor’s fiscal year;
b.
Notify EPA within 30 days after the affected Respondent or guarantor
determines that it no longer satisfies the relevant financial test criteria and requirements set forth
in this Section; and
c.
Provide to EPA, within 30 days of EPA’s request, reports of the financial
condition of the affected Respondent or guarantor in addition to those specified in ¶ 94.b; EPA
may make such a request at any time based on a belief that the affected Respondent or guarantor
may no longer meet the financial test requirements of this Section.
30.
Settling Defendant shall diligently monitor the adequacy of the financial
assurance. If Settling Defendant becomes aware of any information indicating that the financial
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assurance provided under this Section is inadequate or otherwise no longer satisfies the
requirements of this Section, Settling Defendant shall notify EPA of such information within
7 days. If EPA determines that the financial assurance provided under this Section is inadequate
or otherwise no longer satisfies the requirements of this Section, EPA will notify the affected
Settling Defendant of such determination. Settling Defendant shall, within 30 days after
notifying EPA or receiving notice from EPA under this Paragraph, secure and submit to EPA for
approval a proposal for a revised or alternative financial assurance mechanism that satisfies the
requirements of this Section. EPA may extend this deadline for such time as is reasonably
necessary for Settling Defendant, in the exercise of due diligence, to secure and submit to EPA a
proposal for a revised or alternative financial assurance mechanism, not to exceed 60 days.
Settling Defendant shall follow the procedures of ¶ 32 (Modification of Amount, Form, or Terms
of Financial Assurance) in seeking approval of, and submitting documentation for, the revised or
alternative financial assurance mechanism. Settling Defendant’s inability to secure and submit to
EPA financial assurance in accordance with this Section shall in no way excuse performance of
any other requirements of this Consent Decree, including, without limitation, the obligation of
Settling Defendant to complete the Work in accordance with the terms of this Consent Decree.
31.

Access to Financial Assurance.

a.
If EPA issues a notice of implementation of a Work Takeover under
¶ 79.b, then, in accordance with any applicable financial assurance mechanism and/or related
standby funding commitment, EPA is entitled to: (1) the performance of the Work; and/or
(2) require that any funds guaranteed be paid in accordance with ¶ 31.d.
b.
If EPA is notified by the issuer of a financial assurance mechanism that it
intends to cancel such mechanism, and the affected Settling Defendant fails to provide an
alternative financial assurance mechanism in accordance with this Section at least 30 days prior
to the cancellation date, the funds guaranteed under such mechanism must be paid prior to
cancellation in accordance with ¶ 31.d.
c.
If, upon issuance of a notice of implementation of a Work Takeover under
¶ 79.b, either: (1) EPA is unable for any reason to promptly secure the resources guaranteed
under any applicable financial assurance mechanism and/or related standby funding
commitment, whether in cash or in kind, to continue and complete the Work; or (2) the financial
assurance is provided under ¶ 27.e or 27.f, then EPA may demand an amount, as determined by
EPA, sufficient to cover the cost of the remaining Work to be performed. Settling Defendant
shall, within 45 days of such demand, pay the amount demanded as directed by EPA.
d.
Any amounts required to be paid under this ¶ 31 shall be, as directed by
EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA or by another
person; or (ii) deposited into an interest-bearing account, established at a duly chartered bank or
trust company that is insured by the FDIC, in order to facilitate the completion of the Work by
another person. If payment is made to EPA, EPA may deposit the payment into the EPA
Hazardous Substance Superfund or into the Ashland/Northern States Power Special Account
within the EPA Hazardous Substance Superfund to be retained and used to conduct or finance
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response actions at or in connection with the Site, or to be transferred by EPA to the EPA
Hazardous Substance Superfund.
e.
All EPA Work Takeover costs not paid under this ¶ 31 must be
reimbursed as Future Response Costs under Section X (Payments for Response Costs).
32.
Modification of Amount, Form, or Terms of Financial Assurance. Settling
Defendant may submit, on any anniversary of the Effective Date or at any other time agreed to
by the Parties, a request to reduce the amount, or change the form or terms, of the financial
assurance mechanism. Any such request must be submitted to EPA in accordance with ¶ 27, and
must include an estimate of the cost of the remaining Work, an explanation of the bases for the
cost calculation, and a description of the proposed changes, if any, to the form or terms of the
financial assurance. EPA will notify Settling Defendant of its decision to accept or reject a
requested reduction or change pursuant to this Paragraph. Settling Defendant may reduce the
amount of the financial assurance mechanism only in accordance with: (a) EPA’s approval; or
(b) if there is a dispute, the agreement, final administrative decision, or final judicial decision
resolving such dispute under Section XIV (Dispute Resolution). Any decision made by EPA on a
request submitted under this Paragraph to change the form or terms of a financial assurance
mechanism shall be made in EPA’s sole and unreviewable discretion, and such decision shall not
be subject to challenge by Settling Defendant pursuant to the dispute resolution provisions of this
Consent Decree or in any other forum. Within 30 days after receipt of EPA’s approval of, or the
agreement or decision resolving a dispute relating to, the requested modifications pursuant to this
Paragraph, Settling Defendant shall submit to EPA documentation of the reduced, revised, or
alternative financial assurance mechanism in accordance with ¶ 27.
33.
Release, Cancellation, or Discontinuation of Financial Assurance. Settling
Defendant may release, cancel, or discontinue any financial assurance provided under this
Section only: (a) if EPA issues a Certification of Work Completion under ¶ 4.7 (Certification of
Work Completion) of the SOW; (b) in accordance with EPA’s approval of such release,
cancellation, or discontinuation; or (c) if there is a dispute regarding the release, cancellation or
discontinuance of any financial assurance, in accordance with the agreement, final administrative
decision, or final judicial decision resolving such dispute under Section XIV (Dispute
Resolution).

X.

PAYMENTS FOR RESPONSE COSTS

34.
Within 30 days after the Effective Date, Settling Defendant shall pay to EPA
$1,000,000 in payment for Past Response Costs. Payment shall be made in accordance with ¶ 36
(Payment Instructions for Settling Defendant).
35.
Payments by Settling Defendant for Future Response Costs. Settling
Defendant shall pay to EPA all Future Response Costs not inconsistent with the NCP.
a.
On a periodic basis, EPA will send Settling Defendant a bill requiring
payment that includes an Itemized Cost Summary, which includes direct and indirect costs
incurred by EPA, its contractors, subcontractors, and DOJ. Settling Defendant shall make all
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payments within 30 days after Settling Defendant’s receipt of each bill requiring payment, except
as otherwise provided in ¶ 37, in accordance with ¶ 36 (instructions for future response cost
payments).
b.
Deposit of Future Response Costs Payments. The total amount to be
paid by Settling Defendant pursuant to ¶ 35.a shall be deposited by EPA in the Ashland/Northern
States Power 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, provided, however, that EPA may deposit a Future Response Costs payment directly
into the EPA Hazardous Substance Superfund if, at the time the payment is received, EPA
estimates that the Ashland Special Account balance is sufficient to address currently anticipated
future response actions to be conducted or financed by EPA at or in connection with the Site.
36.
Payment Instructions for Settling Defendant. For all payments of Past
Response Costs, Future Response Costs or Stipulated penalties, Settling Defendant shall make
such payment by Fedwire EFT, referencing the Site/Spill ID B5 N5 and DJ number 90-11-208879/5. The Fedwire EFT payment must be sent as follows:
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”
At the time of any payment required to be made under this Consent Decree, Settling Defendant
shall send notices that payment has been made to the United States, EPA, and the EPA
Cincinnati Finance Center. All notices must include references to the Site/Spill ID and DJ
numbers.
37.
Contesting Future Response Costs. Settling Defendant may submit a Notice of
Dispute, initiating the procedures of Section XIV (Dispute Resolution), regarding any Future
Response Costs billed under ¶ 35 (Payments by Settling Defendant for Future Response Costs) if
Settling Defendant determines that EPA has made a mathematical error or included a cost item
that is not within the definition of Future Response Costs, or if it believes EPA incurred excess
costs as a direct result of an EPA action that was inconsistent with a specific provision or
provisions of the NCP. Such Notice of Dispute shall be submitted in writing within 30 days after
receipt of the bill and must be sent to the United States pursuant to Section XXI (Notices and
Submissions). Such Notice of Dispute shall specifically identify the contested Future Response
Costs and the basis for objection. If Settling Defendant submits a Notice of Dispute, Settling
Defendant shall pay all uncontested Future Response Costs to the United States within 30 days
after Settling Defendant’s receipt of the bill requiring payment. Simultaneously, Settling
Defendant shall establish, in a duly chartered bank or trust company, an interest-bearing escrow
account that is insured by the Federal Deposit Insurance Corporation (FDIC), and remit to that
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escrow account funds equivalent to the amount of the contested Future Response Costs. Settling
Defendant shall send to the United States, as provided in Section XXI (Notices and
Submissions), a copy of the transmittal letter and check paying the uncontested Future Response
Costs, and a copy of the correspondence that establishes and funds the escrow account,
including, but not limited to, information containing the identity of the 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. If the United States prevails in the dispute, Settling Defendant
shall pay the sums due (with accrued interest) to the United States within 7 days after the
resolution of the dispute. If Settling Defendant prevails concerning any aspect of the contested
costs, Settling Defendant shall pay that portion of the costs (plus associated accrued interest) for
which it did not prevail to the United States within 7 days after the resolution of the dispute.
Settling Defendant shall be disbursed any balance of the escrow account. All payments to the
United States under this Paragraph shall be made in accordance with ¶ 36 (Payment Instructions
for Settling Defendant). The dispute resolution procedures set forth in this Paragraph in
conjunction with the procedures set forth in Section XIV (Dispute Resolution) shall be the
exclusive mechanisms for resolving disputes regarding Settling Defendant’s obligation to
reimburse the United States for its Future Response Costs.
38.
Interest. In the event that any payment for Future Response Costs required under
this Section is not made by the date required, Settling Defendant shall pay Interest on the unpaid
balance. The Interest on Future Response Costs shall begin to accrue on the date of the 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
Plaintiffs 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 ¶ 61 (Stipulated Penalty
Amounts – Work).

XI.

DISBURSEMENT OF SPECIAL ACCOUNT FUNDS

39.
Ashland/Northern States Power Disbursement Special Account and
Agreement to Disburse Funds to Settling Defendant. Within 30 days after the Effective Date,
EPA shall establish the Ashland/Northern States Power Disbursement Special Account and shall
transfer $ 4,500,000 from the Ashland/Northern States Power Special Account to the
Ashland/Northern States Power Disbursement Special Account. Subject to the terms and
conditions set forth in this Section, EPA agrees to make the funds in the Ashland/Northern States
Power Disbursement Special Account, including Interest Earned on the funds in the
Ashland/Northern States Power Disbursement Special Account, available for disbursement to
Settling Defendant as partial reimbursement for performance of the Work. EPA shall disburse
any remaining funds from the Ashland/Northern States Power Disbursement Special Account to
Settling Defendant in accordance with the procedures and milestones for phased disbursement
set forth in this Section.

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40.
Timing, Amount, and Method of Disbursing Funds From the
Ashland/Northern States Power Disbursement Special Account.
a.
Within 30 days after EPA’s receipt of a Cost Summary and Certification,
as defined by ¶ 41.b, or if EPA has requested additional information under ¶ 41.b or a revised
Cost Summary and Certification under ¶ 41.d, within 15 days after receipt of the additional
information or revised Cost Summary and Certification, and subject to the conditions set forth in
this Section, EPA shall disburse the funds from the Ashland/Northern States Power
Disbursement Special Account at the completion of the following milestones, and in the amounts
set forth below:
Milestone
1. NSPW submits 95 percent design
and places order for containment
curtains.

Disbursement of Funds
$1,000,000

2. NSPW commences dredging
(defined to mean first dredge bucket).

$1,000,000

3. NSPW achieves dredging 50%
complete (by volume) based on
remedial action plan design
estimates/dredge plan.

$1,000,000

4. NSPW commences placement of the
restorative layer.

$1,000,000

5. EPA issues certification of Phase 2
remedial action completion.

$500,000

EPA shall disburse the funds from the Ashland/Northern States Power Disbursement Special
Account to Settling Defendant by Electronic Funds Transfer in accordance with instructions
provided to EPA by Settling Defendant.
41.

Requests for Disbursement of Special Account Funds.

a.
Within 30 days after issuance of EPA’s written confirmation that a
milestone of the Work, as defined in ¶ 40 (Timing, Amount, and Method of Disbursing Funds),
has been satisfactorily completed, Settling Defendant shall submit to EPA a Cost Summary and
Certification, as defined in ¶ 41.b, covering the Work performed up to the date of completion of
that milestone. Settling Defendant shall not include in any submission costs included in a
previous Cost Summary and Certification following completion of an earlier milestone of the
Work if those costs have been previously sought or reimbursed pursuant to ¶ 40.

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b.
Each Cost Summary and Certification shall include a complete and
accurate written cost summary and certification of the necessary costs incurred and paid by
Settling Defendant for the Work covered by the particular submission, excluding costs not
eligible for disbursement under ¶ 42 (Costs Excluded from Disbursement). Each Cost Summary
and Certification shall contain the following statement signed by the Chief Financial Officer of
Settling Defendant, or an Independent Certified Public Accountant:
To the best of my knowledge, after thorough investigation and review of Settling Defendant’s
documentation of costs incurred and paid for Work performed pursuant to this CD [insert, as
appropriate: “up to the date of completion of milestone 1,” or “between the date of completion
of milestone 1 and the date of completion of milestone 2,”] I certify that the information
contained in or accompanying this submission is true, accurate, and complete. I am aware that
there are significant penalties for knowingly submitting false information, including the
possibility of fine and imprisonment.
c.
The Chief Financial Officer of Settling Defendant or an Independent
Certified Public Accountant shall also provide EPA a list of the documents that he or she
reviewed in support of the Cost Summary and Certification. Upon request by EPA, Settling
Defendant shall submit to EPA any additional information that EPA deems necessary for its
review and approval of a Cost Summary and Certification.
d.
If EPA finds that a Cost Summary and Certification includes a
mathematical error, costs excluded under ¶ 42 (Costs Excluded from Disbursement), costs that
are inadequately documented, or costs submitted in a prior Cost Summary and Certification, it
will notify Settling Defendant and provide it an opportunity to cure the deficiency by submitting
a revised Cost Summary and Certification. If Settling Defendant fails to cure the deficiency
within 15 days after being notified of, and given the opportunity to cure, the deficiency, EPA
will recalculate Settling Defendant’s costs eligible for disbursement for that submission and
disburse the corrected amount to Settling Defendant in accordance with the amounts and
procedures in ¶ 40 (Timing, Amount, and Method of Disbursing Funds). Settling Defendant may
dispute EPA’s recalculation under this Paragraph pursuant to Section XIV (Dispute Resolution).
In no event shall Settling Defendant be disbursed funds from the Ashland/Northern States Power
Disbursement Special Account in excess of amounts properly documented in a Cost Summary
and Certification accepted or modified by EPA.
42.
Costs Excluded from Disbursement. The following costs are excluded from,
and shall not be sought by Settling Defendant for, disbursement from the Ashland/Northern
States Power Disbursement Special Account: (a) response costs paid pursuant to Section X
(Payments for Response Costs); (b) any other payments made by Settling Defendant to the
United States pursuant to this Consent Decree, including, but not limited to, any Interest or
stipulated penalties paid pursuant to Section X (Payments for Response Costs) or XV (Stipulated
Penalties); (c) attorneys’ fees and costs, except for reasonable attorneys’ fees and costs
necessarily related to Settling Defendant’s obligation to provide and/or secure access, to
implement, maintain, monitor, and report on Institutional Controls to the extent described in
Paragraph 23.a, and to abide by such Institutional Controls, as required by Section VIII (Access
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and Institutional Controls); (d) costs of any response activities Settling Defendant perform that
are not required under, or approved by EPA pursuant to, this Consent Decree; (e) costs related to
Settling Defendant’s litigation, settlement, development of potential contribution claims, or
identification of defendants; (f) internal costs of Settling Defendant, including but not limited to,
salaries, travel, or in-kind services, except for those costs that represent the work of employees of
Settling Defendant directly performing the Work; (g) any costs incurred by Settling Defendant
prior to the Effective Date except for approved Work completed pursuant to this Consent Decree;
or (h) any costs incurred by Settling Defendant pursuant to Section XIV (Dispute Resolution).
43.
Termination of Disbursements from the Special Account. EPA’s obligation to
disburse funds from the Ashland/Northern States Power Disbursement Special Account under
this Consent Decree shall terminate upon EPA’s determination that Settling Defendant: (a) has
knowingly submitted a materially false or misleading Cost Summary and Certification; (b) has
submitted a materially inaccurate or incomplete Cost Summary and Certification, and has failed
to correct the materially inaccurate or incomplete Cost Summary and Certification within
15 days after being notified of, and given the opportunity to cure, the deficiency; or (c) failed to
submit the Cost Summary and Certification as required by ¶ 41 (Requests for Disbursement of
Special Account Funds) within 30 days (or such longer period as EPA agrees) after being
notified that EPA intends to terminate its obligation to make disbursements pursuant to this
Section because of Settling Defendant’s failure to submit the Cost Summary and Certification as
required by ¶ 41.b. EPA’s obligation to disburse funds from the Ashland/Northern States Power
Disbursement Special Account shall also terminate upon EPA’s assumption of performance of
any portion of the Work pursuant to ¶ 79 (Work Takeover), when such assumption of
performance of the Work is not challenged by Settling Defendant or, if challenged, is upheld
under Section XIV (Dispute Resolution). Settling Defendant may dispute EPA’s termination of
special account disbursements under Section XIV.
44.
Recapture of Special Account Disbursements. Upon termination of
disbursements from the Ashland/Northern States Power Disbursement Special Account under
¶ 43 (Termination of Disbursements from the Special Account), if EPA has previously disbursed
funds from the Ashland/Northern States Power Disbursement Special Account for activities
specifically related to the reason for termination, e.g., discovery of a materially false or
misleading submission after disbursement of funds based on that submission, EPA shall submit a
bill to Settling Defendant for those amounts already disbursed from the Ashland/Northern States
Power Disbursement Special Account specifically related to the reason for termination, plus
Interest on that amount covering the period from the date of disbursement of the funds by EPA to
the date of repayment of the funds by Settling Defendant. Within 10 days after receipt of EPA’s
bill, Settling Defendant shall reimburse the EPA Hazardous Substance Superfund for the total
amount billed. Payment shall be made in accordance with ¶ 36 (Payment Instructions for Settling
Defendant). Upon receipt of payment, EPA may deposit all or any portion thereof in the
Ashland/Northern States Power Special Account, the Ashland/Northern States Power
Disbursement Special Account, or the EPA Hazardous Substance Superfund. The determination
of where to deposit or how to use the funds shall not be subject to challenge by Settling
Defendant pursuant to the dispute resolution provisions of this Consent Decree or in any other
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forum. Settling Defendant may dispute EPA’s determination as to recapture of funds pursuant to
Section XIV (Dispute Resolution).
45.
Balance of Special Account Funds. After EPA issues its written Certification of
Phase 2 Remedial Action Completion pursuant to this Consent Decree, and after EPA completes
all disbursement to Settling Defendant in accordance with this Section, if any funds remain in the
Ashland/Northern States Power Disbursement Special Account, EPA may transfer such funds to
the Ashland/Northern States Power Special Account or to the EPA Hazardous Substance
Superfund. Any transfer of funds to the Ashland/Northern States Power Special Account or the
EPA Hazardous Substance Superfund shall not be subject to challenge by Settling Defendant
pursuant to the dispute resolution provisions of this Consent Decree or in any other forum.

XII.
46.

INDEMNIFICATION AND INSURANCE

Settling Defendant’s Indemnification of the United States and the State.

a.
The United States and the State do not assume any liability by entering
into this Consent Decree or by virtue of any designation of Settling Defendant as EPA’s
authorized representatives under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e). Settling
Defendant shall indemnify, save, and hold harmless the United States and the State and their
officials, agents, employees, contractors, subcontractors, and 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 Settling Defendant’s behalf or under its control, in
carrying out activities pursuant to this Consent Decree, including, but not limited to, any claims
arising from any designation of Settling Defendant as EPA’s authorized representatives under
Section 104(e) of CERCLA. Further, Settling Defendant agrees to pay the United States and the
State all costs they incur including, but not limited to, attorneys’ fees and other expenses of
litigation and settlement arising from, or on account of, claims made against the United States
and the State based on negligent or other wrongful acts or omissions of Settling Defendant, its
officers, directors, employees, agents, contractors, subcontractors, and any persons acting on its
behalf or under its control, in carrying out activities pursuant to this Consent Decree. Neither the
United States nor the State shall 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
Settling Defendant nor any such contractor shall be considered an agent of the United States or
the State.
b.
The United States and the State, respectively, shall give Settling
Defendant notice of any claim for which the United States or the State plans to seek
indemnification pursuant to this ¶ 46, and shall consult with Settling Defendant prior to settling
such claim.
47.
Settling Defendant covenants not to sue and agrees not to assert any claims or
causes of action against the United States and the State, respectively, for damages or
reimbursement or for set-off of any payments made or to be made to the United States or the
State, arising from or on account of any contract, agreement, or arrangement between Settling
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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, save and hold harmless the United States and the State 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.
48.
Insurance. No later than 15 days before commencing any on-site Work, Settling
Defendant shall secure, and shall maintain until the first anniversary after issuance of EPA’s
Certification of RA Completion pursuant to ¶ 4.5 (Certification of Remedial Action Completion)
of the SOW, commercial general liability insurance with limits of $2 million, for any one
occurrence, and automobile liability insurance with limits of $2 million, combined single limit,
naming the United States and the State as additional insureds with respect to all liability arising
out of the activities performed by or on behalf of Settling Defendant pursuant to this Consent
Decree. In addition, for the duration of this 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 of this Consent Decree. Prior to commencement
of the Work, Settling Defendant shall provide to EPA and the State 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 of the insurance described above that is not maintained by the contractor or
subcontractor.

XIII. FORCE MAJEURE
49.
“Force majeure,” for purposes of this Consent Decree, is defined as any event
arising from causes beyond the control of Settling Defendant, of any entity controlled by Settling
Defendant, or of Settling Defendant’s contractors that delays or prevents the performance of any
obligation under this Consent Decree despite Settling Defendant’s best efforts to fulfill the
obligation. The requirement that Settling Defendant exercise “best efforts to fulfill the
obligation” includes using best efforts to anticipate any potential force majeure and best efforts
to address the effects of any potential force majeure (a) as it is occurring and (b) following the
potential force majeure such that the delay and any adverse effects of the delay are minimized to
the greatest extent possible. “Force majeure” does not include financial inability to complete the
Work or a failure to achieve the Performance Standards.
50.
If any event occurs or has occurred that may delay the performance of any
obligation under this Consent Decree for which Settling Defendant intends or may intend to
assert a claim of force majeure, Settling Defendant shall notify EPA’s Project Coordinator orally
or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of EPA’s
designated representatives are unavailable, the Director of the Superfund Division, EPA Region
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5, within 48 hours of when Settling Defendant first knew that the event might cause a delay.
Within five days thereafter, Settling Defendant shall provide in writing to EPA and WDNR an
explanation and description of the reasons for the delay; the anticipated duration of the 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 of the delay; Settling
Defendant’s rationale for attributing such delay to a force majeure; and a statement as to
whether, in the opinion of Settling Defendant, such event may cause or contribute to an
endangerment to public health or welfare, or the environment. Settling Defendant shall include
with any notice all available documentation supporting its claim that the delay was attributable to
a force majeure. Settling Defendant shall be deemed to know of any circumstance of which
Settling Defendant, any entity controlled by Settling Defendant, or Settling Defendant’s
contractors or subcontractors knew or should have known. Failure to comply with the above
requirements regarding an event shall preclude Settling Defendant from asserting any claim of
force majeure regarding that event, provided, however, that if EPA, despite the late or
incomplete notice, is able to assess to its satisfaction whether the event is a force majeure under
¶ 49 and whether Settling Defendant has exercised its best efforts under ¶ 49, EPA may, in its
unreviewable discretion, excuse in writing Settling Defendant’s failure to submit timely or
complete notices under this Paragraph.
51.
If EPA, after a reasonable opportunity for review and comment by the State,
agrees that the delay or anticipated delay is attributable to a force majeure, the time for
performance of the obligations under this Consent Decree that are affected by the force majeure
will be extended by EPA, after a reasonable opportunity for review and comment by the State,
for such time as is necessary to complete those obligations. An extension of the time for
performance of the obligations affected by the force majeure shall not, of itself, extend the time
for performance of any other obligation. If EPA, after a reasonable opportunity for review and
comment by the State, does not agree that the delay or anticipated delay has been or will be
caused by a force majeure, EPA will notify Settling Defendant in writing of its decision. If EPA,
after a reasonable opportunity for review and comment by the State, agrees that the delay is
attributable to a force majeure, EPA will notify Settling Defendant in writing of the length of the
extension, if any, for performance of the obligations affected by the force majeure.
52.
If Settling Defendant elects to invoke the dispute resolution procedures set forth
in Section XIV (Dispute Resolution) regarding EPA’s decision, it shall do so no later than
15 days after receipt of EPA’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, 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 of the delay, and that Settling Defendant complied with the
requirements of ¶¶ 50 and 51. If Settling Defendant carries this burden, the delay at issue shall be
deemed not to be a violation by Settling Defendant of the affected obligation of this Consent
Decree identified to EPA and the Court.
53.
The failure by EPA to timely complete any obligation under the Consent Decree
or under the SOW is not a violation of the Consent Decree, provided, however, that if such
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failure prevents Settling Defendant from meeting one or more deadlines in the SOW, Settling
Defendant may seek relief under this Section.

XIV. DISPUTE RESOLUTION
54.
Unless otherwise expressly provided for in this Consent Decree, the dispute
resolution procedures of this Section shall be the exclusive mechanism to resolve disputes
regarding this Consent Decree. However, the procedures set forth in this Section shall not apply
to actions by the United States to enforce obligations of Settling Defendant that have not been
disputed in accordance with this Section.
55.
A dispute shall be considered to have arisen when one party sends the other
parties a written Notice of Dispute. Any dispute regarding this Consent Decree shall in the first
instance be the subject of informal 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 of the parties to the dispute.
56.

Statements of Position.

a.
In 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 21 days after the conclusion of the informal negotiation period,
Settling Defendant invokes the formal dispute resolution procedures of this Section by serving
on the United States and the State a written Statement of Position 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 Settling Defendant. The Statement of Position
shall specify Settling Defendant’s position as to whether formal dispute resolution should
proceed under ¶ 57 (Record Review) or 58.
b.
Within 21 days after receipt of Settling Defendant’s Statement of Position,
EPA will serve on Settling Defendant its Statement of Position, 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 of Position shall include a statement as to whether formal
dispute resolution should proceed under ¶ 57 (Record Review) or 58. Within ten days after
receipt of EPA’s Statement of Position, Settling Defendant may submit a Reply.
c.
If there is disagreement between EPA and Settling Defendant as to
whether dispute resolution should proceed under ¶ 57 (Record Review) or 58, the parties to the
dispute shall follow the procedures set forth in the Paragraph determined by EPA to be
applicable. However, if Settling Defendant ultimately appeals to the Court to resolve the dispute,
the Court shall determine which Paragraph is applicable in accordance with the standards of
applicability set forth in ¶¶ 57 and 58.
57.
Record Review. 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
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adequacy of any response action includes, without limitation, the adequacy or appropriateness of
plans, procedures to implement plans, or any other items requiring approval by EPA under this
Consent Decree, and the adequacy of the performance of response actions taken pursuant to this
Consent Decree. Nothing in this Consent Decree shall be construed to allow any dispute by
Settling Defendant regarding the validity of the ROD’s provisions.
a.
An administrative record of the dispute shall be maintained by EPA and
shall contain all statements of position, including supporting documentation, submitted pursuant
to this Section. Where appropriate, EPA may allow submission of supplemental statements of
position by the parties to the dispute.
b.
The Director of the Superfund Division, EPA Region 5, will issue a final
administrative decision resolving the dispute based on the administrative record described in
¶ 57.a. This decision shall be binding upon Settling Defendant, subject only to the right to seek
judicial review pursuant to ¶¶ 57.c and 57.d.
c.
Any administrative decision made by EPA pursuant to ¶ 57.b shall be
reviewable by this Court, provided that a motion for judicial review of the decision is filed by
Settling Defendant with the Court and served on all Parties within 10 days after receipt of EPA’s
decision. The motion shall include a description of 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 this Consent Decree. The United States may file
a response to Settling Defendant’s motion.
d.
In proceedings on any dispute governed by this Paragraph, Settling
Defendant shall have the burden of demonstrating that the decision of the Superfund Division
Director is arbitrary and capricious or otherwise not in accordance with law. Judicial review of
EPA’s decision shall be on the administrative record compiled pursuant to ¶ 57.a.
58.
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.
The Director of the Superfund Division, EPA Region 5, will issue a final
decision resolving the dispute based on the statements of position and reply, if any, served under
¶ 56. The Superfund Division Director’s decision shall be binding on Settling Defendant unless,
within 10 days after receipt of the decision, Settling Defendant files with the Court and serves on
the parties a motion for judicial review of the 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.
Notwithstanding ¶ N (CERCLA § 113(j) record review of ROD and
Work) of Section I (Background), judicial review of any dispute governed by this Paragraph
shall be governed by applicable principles of law.

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59.
The invocation of formal dispute resolution procedures under this Section does
not extend, postpone, or affect in any way any obligation of Settling Defendant under this
Consent Decree, except as provided in ¶ 37 (Contesting Future Response Costs), as agreed by
EPA, or as determined by the Court. Stipulated penalties with respect to the disputed matter shall
continue to accrue, but payment shall be stayed pending resolution of the dispute, as provided in
¶ 67. Notwithstanding the stay of payment, stipulated penalties shall accrue from the first day of
noncompliance with any applicable provision of this Consent Decree. In the event that Settling
Defendant does not prevail on the disputed issue, stipulated penalties shall be assessed and paid
as provided in Section XV (Stipulated Penalties).

XV.

STIPULATED PENALTIES

60.
Settling Defendant shall be liable for stipulated penalties in the amounts set forth
in ¶¶ 61 and 62 to the United States for failure to comply with the requirements of this Consent
Decree specified below, unless excused under Section XIII (Force Majeure). “Compliance” by
Settling Defendant shall include completion of all activities and obligations, including payments,
required under this Consent Decree, or any deliverable approved under this Consent Decree, in
accordance with all applicable requirements of law, this Consent Decree, the SOW, and any
deliverables approved under this Consent Decree and within the specified time schedules
established by and approved under this Consent Decree.
61.
Stipulated Penalty Amounts - Work (Including Payments and Excluding
Deliverables).
a.
The following stipulated penalties shall accrue per violation per day for
any noncompliance identified in ¶ 61.b:
Period of Noncompliance
1st through 14th day
15th through 30th day
31st day and beyond
b.

Penalty Per Violation Per Day
$ 1,000
$ 1,500
$ 3,000

Compliance Milestones.

(1)
Failure to timely submit or resubmit the Intermediate (60%), Prefinal (95%), or Final Remedial Design;
(2)

Failure to timely submit or resubmit the Phase 2 Remedial Action

Work Plan;
(3)
Failure to timely initiate Phase 2 Remedial Action Construction or
to complete the Phase 2 Remedial Action;
(4)
Failure to timely submit, resubmit, or implement the Operation and
Maintenance Plan, if applicable;
(5)
Failure to submit, resubmit, or implement the Institutional Control
Implementation and Assurance Plan, if applicable, and as limited by Paragraph23.a;
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(6)
Failure to establish or maintain the required performance guarantee
pursuant to Section IX of this Consent Decree;
(7)
Failure to make best efforts to obtain or to provide access or to
execute the required Institutional Controls and submit them to WDNR pursuant to
Section VIII of this Consent Decree;
(8)
Failure to timely make payment of Past Response Costs or Future
Response Costs pursuant to Section X of this Consent Decree; and
(9)
Failure to initiate or complete any further response actions EPA
selects for the Phase 2 Project Area pursuant to Paragraph 16 of this Consent Decree.
62.

Stipulated Penalty Amounts - Deliverables.

a.
Material Defects. If an initially submitted or resubmitted deliverable
contains a material defect, and the deliverable is disapproved or modified by EPA under ¶ 6.6(a)
(Initial Submissions) or 6.6(b) (Resubmissions) of the SOW due to such material defect, then the
material defect shall constitute a lack of compliance for purposes of ¶ 60, unless the defect is
timely cured pursuant to ¶ 6.6(b) (Resubmissions) of the SOW. The provisions of Section XIV
(Dispute Resolution) and Section XV (Stipulated Penalties) shall govern the accrual and payment
of any stipulated penalties regarding Settling Defendant’s submissions under this Consent
Decree.
b.
The following stipulated penalties shall accrue per violation per day for
failure to submit timely or adequate deliverables not listed in ¶ 61 pursuant to the Consent
Decree:
Period of Noncompliance
1st through 14th day
15th through 30th day
31st day and beyond

Penalty Per Violation Per Day
$ 500
$ 1,000
$ 2,000

63.
In the event that EPA assumes performance of a portion or all of the Work
pursuant to ¶ 79 (Work Takeover), Settling Defendant shall be liable for a stipulated penalty in
the amount of $ 1.5 million. Stipulated penalties under this Paragraph are in addition to the
remedies available under ¶¶ 31 (Access to Financial Assurance) and 79 (Work Takeover).
64.
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 of the
correction of the noncompliance or completion of the activity. However, stipulated penalties
shall not accrue: (a) with respect to a deficient submission under ¶ 6.6 (Approval of
Deliverables) of the SOW, 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 Director of the Superfund Division, EPA Region 5, under
¶ 57.b or 58.a of Section XIV (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
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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 XIV (Dispute Resolution), during
the period, if any, beginning on the 31st day after the Court’s receipt of the final submission
regarding the dispute until the date that the Court issues a final decision regarding such dispute.
Nothing in this Consent Decree shall prevent the simultaneous accrual of separate penalties for
separate violations of this Consent Decree.
65.
Following EPA’s determination that Settling Defendant has failed to comply with
a requirement of this Consent Decree, EPA may give Settling Defendant written notification of
the same and describe the noncompliance. EPA may send Settling Defendant a written demand
for payment of the penalties. However, penalties shall accrue as provided in the preceding
Paragraph regardless of whether EPA has notified Settling Defendant of a violation.
66.
All penalties accruing under this Section shall be due and payable to the United
States within 30 days after Settling Defendant’s receipt from EPA of a demand for payment of
the penalties, unless Settling Defendant invokes the Dispute Resolution procedures under Section
XIV (Dispute Resolution) within the 30-day period. All payments to the United States under this
Section shall indicate that the payment is for stipulated penalties and shall be made in accordance
with ¶ 36 (Payment Instructions for Settling Defendant).
67.
Penalties shall continue to accrue as provided in ¶ 63 during any dispute
resolution period, but need not be paid until the following:
a.
If the dispute is resolved by agreement of the parties or by a decision of
EPA that is not appealed to this Court, accrued penalties determined to be owed shall be paid to
EPA within 15 days after 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 60 days after receipt of the Court’s decision or order, except as provided in
¶ 67.c;
c.
If the District Court’s decision is appealed by any Party, Settling
Defendant shall pay all accrued penalties determined by the District Court to be owed to the
United States into an interest-bearing escrow account, established at a duly chartered bank or
trust company that is insured by the FDIC, within 60 days after receipt of the Court’s decision or
order. Penalties shall be paid into this account as they continue to accrue, at least every 60 days.
Within 15 days after receipt of the final appellate court decision, the escrow agent shall pay the
balance of the account to EPA or to Settling Defendant to the extent that it prevails.
68.
If Settling Defendant fails to pay stipulated penalties when due, Settling
Defendant shall pay Interest on the unpaid stipulated penalties as follows: (a) if Settling
Defendant has timely invoked dispute resolution such that the obligation to pay stipulated
penalties has been stayed pending the outcome of dispute resolution, Interest shall accrue from
the date stipulated penalties are due pursuant to ¶ 66 until the date of payment; and (b) if Settling
Defendant fails to timely invoke dispute resolution, Interest shall accrue from the date of demand
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under ¶ 65 until the date of payment. If Settling Defendant fails to pay stipulated penalties and
Interest when due, the United States may institute proceedings to collect the penalties and
Interest.
69.
The payment of penalties and Interest, if any, shall not alter in any way Settling
Defendant’s obligation to complete the performance of the Work required under this Consent
Decree.
70.
Nothing in this Consent Decree shall be construed as prohibiting, altering, or in
any way limiting the ability of the United States or the State to seek any other remedies or
sanctions available by virtue of Settling Defendant’s violation of this Consent Decree or of the
statutes and regulations upon which it is based, including, but not limited to, penalties pursuant
to Section 122(l) of CERCLA, 42 U.S.C. § 9622(l), and Chapters 289, 291, and 292 of the
Wisconsin Statutes, provided, however, that the United States shall not seek civil penalties
pursuant to Section 122(l) of CERCLA for any violation for which a stipulated penalty is
provided in this Consent Decree, except in the case of a willful violation of this Consent Decree.
71.
Notwithstanding any other provision of this Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
this Consent Decree.

XVI. COVENANTS BY PLAINTIFFS
72.
Covenants for Settling Defendant by United States. Except as provided in
¶¶ 74, 75 (United States’ Pre- and Post-Certification Reservations), 77 (General Reservations of
Rights), 78 (Reservation of Rights for Dry Excavation) and 80, the United States covenants not
to sue or to take administrative action against Settling Defendant or Settling Defendant’s Related
Parties pursuant to Sections 106 and 107(a) of CERCLA and Section 7003 of RCRA, 42 U.S.C.
§ 6973, relating to the Site. Except with respect to future liability, these covenants shall take
effect upon the Effective Date. With respect to future liability, these covenants shall take effect
upon Certification of Phase 2 Remedial Action Completion by EPA pursuant to ¶ 4.5
(Certification of RA Completion) of the SOW. 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.
73.
Covenants for Settling Defendant by the State. In consideration of the action
that will be performed and the payments that will be made by Settling Defendant under this
Consent Decree, and except as specifically provided in ¶ 77 (General Reservations of Rights)
and 78 (Reservation of Rights for Dry Excavation), the State covenants not to sue or to take
administrative action against Settling Defendant or Settling Defendant’s Related Parties pursuant
to Section 107(a) of CERCLA and Wisconsin statutory or common law relating to the Site.
These covenants are conditioned upon the satisfactory performance by Settling Defendant of its
obligations under this Consent Decree. These covenants not to sue extend only to Settling
Defendant and do not extend to any other person.

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74.
United States’ Pre-Certification Reservations. Notwithstanding any other
provision of this Consent Decree, the United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or in a new action, and/or to issue an
administrative order, seeking to compel Settling Defendant to perform further response actions
relating to the Phase 2 Project Area and/or to pay the United States for additional costs of
response if, (a) prior to Certification of Phase 2 Remedial Action Completion, (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 (b) EPA determines that these previously unknown
conditions or information together with any other relevant information indicates that the remedial
action is not protective of human health or the environment.
75.
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, the right to institute proceedings in this action or in a new action, and/or to issue an
administrative order, seeking to compel Settling Defendant to perform further response actions
relating to the Site and/or to pay the United States for additional costs of response if,
(a) subsequent to Certification of Phase 1 Remedial Action Completion and Certification of
Phase 2 Remedial Action Completion, (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 (b) EPA determines that these previously unknown conditions or this information together
with other relevant information indicate that the remedial action at the Site is not protective of
human health or the environment.
76.
For purposes of ¶ 74 (United States’ Pre-Certification Reservations), the
information and the conditions known to EPA will include only that information and those
conditions known to EPA as of the Effective Date of this Consent Decree. For purposes of ¶ 75
(United States’ Post-Certification Reservations), the information and the conditions known to
EPA shall include only that information and those conditions known to EPA as of the date of
Certification of Phase 2 Remedial Action Completion and set forth in the ROD, the
administrative record supporting the ROD, the post-ROD administrative record, or in any
information received by EPA pursuant to the requirements of this Consent Decree prior to
Certification of Phase 2 Remedial Action Completion.
77.
General Reservations of Rights. The United States and the State reserve and this
Consent Decree is without prejudice to, all rights against Settling Defendant with respect to all
matters not expressly included within Plaintiffs’ covenants. Notwithstanding any other provision
of this Consent Decree, the United States and the State reserve all rights against Settling
Defendant with respect to:
a.
liability for failure by Settling Defendant to meet a requirement of this
Consent Decree or the Phase I Consent Decree;
b.
liability arising from the past, present, or future disposal, release, or threat
of release of Waste Material outside of the Site;

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c.
liability based on the ownership of the Site by Settling Defendant when
such ownership commences after signature of this Consent Decree by Settling Defendant;
d.
liability based on the operation of the Site by Settling Defendant when
such operation commences after signature of this Consent Decree by Settling Defendant and
does not arise solely from Settling Defendant’s performance of the Work;
e.
liability based on Settling Defendant’s transportation, treatment, storage,
or disposal, or arrangement for transportation, treatment, storage, or disposal of Waste Material
at or in connection with the Site, other than as provided in the ROD, the Work, or otherwise
ordered by EPA, after signature of this Consent Decree by Settling Defendant;
f.

criminal liability;

g.
liability for violations of federal or state law that occur during or after
implementation of the Work; and
h.
liability, prior to achievement of Phase 2 Performance Standards, for
additional response actions that EPA determines are necessary to achieve and maintain Phase 2
Performance Standards or to carry out and maintain the effectiveness of the remedy set forth in
the ROD but that cannot be required pursuant to ¶ 13 (Modification of SOW or Related
Deliverables).
78.
Reservation of Rights for Dry Excavation. Notwithstanding any other
provision of this Consent Decree, the United States and the State reserve, and this Consent
Decree is without prejudice to, the right to institute proceedings in this action or in a new action,
and/or to issue an administrative order, seeking to compel Settling Defendant to perform or
finance dry excavation at the Phase 2 Project Area in the event that EPA, in consultation with the
State, determines that achievement of the Phase 2 Performance Standards is impracticable
without the use of dry excavation.
79.

Work Takeover.

a.
In the event EPA determines that Settling Defendant: (1) has ceased
implementation of any portion of the Work; (2) is seriously or repeatedly deficient or late in its
performance of the Work; or (3) is implementing the Work in a manner that may cause an
endangerment to human health or the environment, EPA may issue a written notice (“Work
Takeover Notice”), after consultation with WDNR, to Settling Defendant. Any Work Takeover
Notice issued by EPA will specify the grounds upon which such notice was issued and will
provide Settling Defendant a period of 30 days within which to remedy the circumstances giving
rise to EPA’s issuance of such notice.
b.
If, after expiration of the 30-day notice period specified in ¶ 79.a, Settling
Defendant has not remedied to EPA’s satisfaction the circumstances giving rise to EPA’s
issuance of the relevant Work Takeover Notice, EPA may at any time thereafter assume the
performance of all or any portion(s) of the Work as EPA deems necessary (“Work Takeover”).
EPA will notify Settling Defendant in writing (which writing may be electronic) if EPA
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determines that implementation of a Work Takeover is warranted under this ¶ 79.b. Funding of
Work Takeover costs is addressed under ¶ 31 (Access to Financial Assurance).
c.
Settling Defendant may invoke the procedures set forth in ¶ 57 (Record
Review), to dispute EPA’s implementation of a Work Takeover under ¶ 79.b. However,
notwithstanding Settling Defendant’s invocation of such dispute resolution procedures, and
during the pendency of any such dispute, EPA may in its sole discretion commence and continue
a Work Takeover under ¶ 79.b until the earlier of (1) the date that Settling Defendant remedies,
to EPA’s satisfaction, the circumstances giving rise to EPA’s issuance of the relevant Work
Takeover Notice, or (2) the date that a final decision is rendered in accordance with ¶ 57 (Record
Review) requiring EPA to terminate such Work Takeover.
80.
Notwithstanding any other provision of this Consent Decree, the United States
and the State retain all authority and reserve all rights to take any and all response actions
authorized by law.

XVII. COVENANTS BY SETTLING DEFENDANT
81.
Covenants by Settling Defendant. Subject to the reservations in ¶ 83, Settling
Defendant covenants not to sue and agrees not to assert any claims or causes of action against the
United States or the State with respect to the Site, the Work, and this Consent Decree, including,
but not limited to:
a.
any direct or indirect claim for reimbursement from the EPA Hazardous
Substance Superfund through CERCLA § 106(b)(2), 107, 111, 112 or 113, or any other
provision of law;
b.
any claims under CERCLA §§ 107 or 113, RCRA Section 7002(a),
42 U.S.C. § 6972(a), or state law regarding the Site for the Work, past response actions regarding
the Site, Past Response Costs, Future Response Costs, and this Consent Decree; or
c.
any claims arising out of response actions at or in connection with the Site,
including any claim under the United States Constitution, the Wisconsin Constitution, the Tucker
Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at common law; or
d.
any direct or indirect claim for disbursement from the Ashland/Northern
States Power Special Account or Ashland/Northern States Power Disbursement Special Account,
except as provided in Section XI (Disbursement of Special Account Funds).
82.
Except as provided in ¶¶ 86 (Waiver of Claims by Settling Defendant) and 93
(Res Judicata and Other Defenses), the covenants in this Section shall not apply if the United
States or the State brings a cause of action or issues an order pursuant to any of the reservations
in Section XVI (Covenants by Plaintiffs), other than in ¶¶ 77.a (claims for failure to meet a
requirement of the Consent Decree), 77.f (criminal liability), and 77.g (violations of federal/state
law during or after implementation of the Work), but only to the extent that Settling Defendant’s
claims arise from the same response action, response costs, or damages that the United States or
the State is seeking pursuant to the applicable reservation.
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83.
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 of the
United States Code, and brought pursuant to any statute other than CERCLA or RCRA and for
which the waiver of sovereign immunity is found in a statute other than CERCLA or RCRA, 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 of the United States, as that term is defined in
28 U.S.C. § 2671, while acting within the scope of his or her office or employment under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred. However, the foregoing
shall not include any claim based on EPA’s selection of response actions, or the oversight or
approval of Settling Defendant’s deliverables or activities.
84.
Nothing in this Consent Decree shall be deemed to constitute approval or
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).
85.
This Consent Decree does not obligate Settling Defendant to perform or finance
dry excavation at the Phase 2 Project Area. Settling Defendant reserves its right to object to any
action by EPA or the State that would request Settling Defendant to perform or finance dry
excavation at the Phase 2 Project Area.
86.

Waiver of Claims by Settling Defendant.

a.
Settling Defendant agrees not to assert any claims and to waive all claims
or causes of action (including but not limited to claims or causes of action under Sections 107(a)
and 113 of CERCLA) that it may have:
(1)
De Micromis Waiver. For all matters relating to the Site against
any person where the person’s liability to Settling Defendant with respect to the Site is
based solely on having arranged for disposal or treatment, or for transport for disposal or
treatment, of hazardous substances at the Site, or having accepted for transport for
disposal or treatment of hazardous substances at the Site, if all or part of the disposal,
treatment, or transport occurred before April 1, 2001, and the total amount of material
containing hazardous substances contributed by such person to the Site was less than 110
gallons of liquid materials or 200 pounds of solid materials.
(2)
MSW Waiver. For all matters relating to the Site against any
person where the person’s liability to Settling Defendants with respect to the Site is based
solely on having arranged for disposal or treatment, or for transport for disposal or
treatment, of MSW at the Site, if the volume of MSW disposed, treated, or transported by
such person to the Site did not exceed 0.2% of the total volume of waste at the Site.

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b.

Exceptions to Waivers.

(1)
The waivers under this ¶ 86 shall not apply with respect to any
defense, claim, or cause of action that Settling Defendant may have against any person
otherwise covered by such waivers if such person asserts a claim or cause of action
relating to the Site against such Settling Defendant.
(2)
The waiver under ¶ 86.a (De Micromis Waiver) shall not apply to
any claim or cause of action against any person otherwise covered by such waiver if EPA
determines that: (i) the materials containing hazardous substances contributed to the Site
by such person contributed significantly or could contribute significantly, either
individually or in the aggregate, to the cost of the response action or natural resource
restoration at the Site; or (ii) such person has failed to comply with any information
request or administrative subpoena issued pursuant to Section 104(e) or 122(e)(3)(B) of
CERCLA, 42 U.S.C. § 9604(e) or 9622(e)(3)(B), or Section 3007 of RCRA, 42 U.S.C.
§ 6927, or has impeded or is impeding, through action or inaction, the performance of a
response action or natural resource restoration with respect to the Site; or if (iii) such
person has been convicted of a criminal violation for the conduct to which the waiver
would apply and that conviction has not been vitiated on appeal or otherwise.
87.
Settling Defendant agrees not to seek judicial review of the final rule listing the
Site on the NPL claiming that changed site conditions resulting from the performance of the
Work in any way affected the basis for listing the Site.

XVIII.

EFFECT OF SETTLEMENT; CONTRIBUTION

88.
Except as provided in ¶ 86 (Waiver of Claims by Settling Defendant), 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. Except as provided in Section XVII (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(f)(2) and (3)
of CERCLA, 42 U.S.C. § 9613(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(f)(2).
89.
The Parties agree, and by entering this Consent Decree this Court finds, that this
Consent Decree constitutes a judicially-approved settlement pursuant to which Settling
Defendant has, as of the Effective Date, resolved liability to the United States within the
meaning of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and is entitled, as of the
Effective Date, to protection from contribution actions or claims as provided by
Section 113(f)(2) of CERCLA, or as may be otherwise provided by law, for the “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
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connection with the Site, by the United States or any other person; provided, however, that if the
United States exercises rights under the reservations in Section XVI (Covenants by Plaintiffs),
other than in ¶¶ 77.a (claims for failure to meet a requirement of the Consent Decree), 77.f
(criminal liability), or 77.g (violations of federal/state law during or after implementation of the
Work), 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.
90.
The Parties further agree, and by entering this Consent Decree this Court finds,
that the complaint filed by the United States in this action is a civil action within the meaning of
Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), and that this Consent Decree constitutes
a judicially-approved settlement pursuant to which Settling Defendant has, as of the Effective
Date, resolved liability to the United States within the meaning of Section 113(f)(3)(B) of
CERCLA, 42 U.S.C. § 9613(f)(3)(B).
91.
Settling Defendant shall, with respect to any suit or claim 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.
92.
Settling Defendant shall, with respect to any suit or claim brought against it for
matters related to this Consent Decree, notify in writing the United States and the State within 10
days after service of the complaint on Settling Defendant. In addition, Settling Defendant shall
notify the United States and the State 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.
93.
Res Judicata and Other Defenses. In any subsequent administrative or judicial
proceeding initiated by the United States or the State 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 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 covenants not to sue set forth in Section XVI (Covenants by Plaintiffs).

XIX. ACCESS TO INFORMATION
94.
Settling Defendant shall provide to EPA and the State, upon request, copies of all
records, reports, documents, and other information (including records, reports, documents, and
other information in electronic form) (hereinafter referred to as “Records”) within Settling
Defendant’s possession or control or that of its 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 regarding the Work. Settling
Defendant shall also make available to EPA and the State, for purposes of investigation,
information gathering, or testimony, its employees, agents, or representatives with knowledge of
relevant facts concerning the performance of the Work.
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95.

Privileged and Protected Claims.

a.
Settling Defendant may assert that all or part of a Record requested by
Plaintiffs is privileged or protected as provided under federal law, in lieu of providing the
Record, provided Settling Defendant comply with ¶ 95.b, and except as provided in ¶ 95.c.
b.
If Settling Defendant asserts a claim of privilege or protection, it shall
provide Plaintiffs with the following information regarding such Record: its title; its date; the
name, title, affiliation (e.g., company or firm), and address of the author, of each addressee, and
of each recipient; a description of the Record’s contents; and 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 Plaintiffs in redacted form to mask the privileged or protected portion
only. Settling Defendant shall retain all Records that it claims to be privileged or protected until
Plaintiffs have had a reasonable opportunity to dispute the privilege or protection claim and any
such dispute has been resolved in the Settling Defendant’s favor.
c.
Settling Defendant may make no claim of privilege or protection
regarding: (1) any data regarding the Site, including, but not limited to, all sampling, analytical,
monitoring, hydrogeologic, scientific, chemical, radiological or engineering data, or the portion
of any other Record that evidences conditions at or around the Site; or (2) the portion of any
Record that Settling Defendant is required to create or generate pursuant to this Consent Decree.
96.
Business Confidential Claims. Settling Defendant may assert that all or part of a
Record provided to Plaintiffs under this Section or Section XX (Retention of Records) is
business confidential 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). Settling Defendant shall segregate
and clearly identify all Records or parts thereof submitted under this Consent Decree for which
Settling Defendant asserts business confidentiality claims. Records submitted to EPA 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 Records when they are submitted to EPA and the
State, 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.
97.
If relevant to the proceeding, the Parties agree that validated sampling or
monitoring data generated in accordance with the SOW and reviewed and approved by EPA
shall be admissible as evidence, without objection, in any proceeding under this Consent Decree.
98.
Notwithstanding any provision of this Consent Decree, Plaintiffs retain all of their
information gathering and inspection authorities and rights, including enforcement actions
related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.

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XX.

RETENTION OF RECORDS

99.
Until 10 years after EPA’s Certification of Work Completion under ¶ 4.7
(Certification of Work Completion) of the SOW, Settling Defendant shall preserve and retain all
non-identical copies of 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 its liability under
CERCLA with respect to the Site, provided, however, that Settling Defendant must retain, in
addition, all Records that relate to the liability of any other person under CERCLA with respect
to the Site. Settling Defendant must also retain, and instruct its contractors and agents to
preserve, for the same period of time specified above all non-identical copies of the last draft or
final version of any 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 performance of
the Work, provided, however, that Settling Defendant (and its contractors and agents) must
retain, in addition, copies of all data generated during the performance of the Work and not
contained in the aforementioned Records required to be retained. Each of the above record
retention requirements shall apply regardless of any corporate retention policy to the contrary.
100. At the conclusion of this record retention period, 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, and except as provided in ¶ 95 (Privileged and
Protected Claims), Settling Defendant shall deliver any such Records to EPA or the State.
101. Settling Defendant 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 (other than identical copies) relating to its potential liability regarding the Site since
notification of potential liability by the United States or the State and that it has fully complied
with any and all EPA and State requests for information regarding the Site pursuant to
Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e)(3)(B), and
Section 3007 of RCRA, 42 U.S.C. § 6927, and state law.

XXI. NOTICES AND SUBMISSIONS
102. All approvals, consents, deliverables, modifications, notices, notifications,
objections, proposals, reports, and requests specified in this Consent Decree must be in writing
unless otherwise specified. Whenever, under this Consent Decree, notice is required to be given,
or a report or other document is required to be sent, by one Party to another, it must be directed
to the person(s) specified below at the addresses specified below. Any Party may change the
person and/or address applicable to it by providing notice of such change to all Parties. All
notices under this Section are effective upon receipt, unless otherwise specified. Notices required
to be sent to EPA, and not to the United States, need not be sent to the DOJ. Except as otherwise
provided, notice to a Party by email (if that option is provided below) or by regular mail in
accordance with this Section satisfies any notice requirement of the Consent Decree regarding
such Party.

41

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As to the United States:

EES Case Management Unit
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, D.C. 20044-7611
[e-mail]
Re: DJ # 90-11-2-08879/5

As to EPA:

Douglas Ballotti
Acting Division Director
U.S. Environmental Protection Agency
Region 5
77 W. Jackson Blvd. (SR-6J)
Chicago, IL 60604-3590

and:

Scott Hansen
EPA Project Coordinator
U.S. Environmental Protection Agency
Region 5
77 W. Jackson Blvd. (SR-6J)
Chicago, IL 60604-3590
[phone]
[e-mail]

As to the Regional Financial
Management Officer:

Richard Hackley
United States Environmental Protection Agency
Region 5
77 W. Jackson Blvd.
Mail Code: MF-10J
Chicago, IL 60604-3507

At to EPA Cincinnati Finance
Center:

EPA Cincinnati Finance Center
26 W. Martin Luther King Drive
Cincinnati, Ohio 45268
[e-mail]

42

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As to the State:

Attorney Jessica L. Kramer
Bureau of Legal Services
Wisconsin DNR
P.O. Box 7921
101 S. Webster Street
Madison, WI 53707-7921

As to WDNR:

Jamie Dunn
WDNR Project Manager
810 West Maple Street
Spooner, WI 54861

As to Settling Defendant:

Eric Ealy
Xcel Energy Services, Inc., on behalf of NSPW
250 Marquette Plaza
Minneapolis, MN 55401
Kristen Shults Carney
Assistant General Counsel
Xcel Energy Services, Inc., on behalf of NSPW
1800 Larimer
11th Floor
Denver, CO 80202

XXII. RETENTION OF JURISDICTION
103. This Court retains jurisdiction over both the subject matter of this Consent Decree
and Settling Defendant for the duration of the performance of the terms and provisions of this
Consent Decree for the purpose of enabling any of the Parties to apply to the Court at any time
for such further order, direction, and relief as may be necessary or appropriate for the
construction or modification of this Consent Decree, or to effectuate or enforce compliance with
its terms, or to resolve disputes in accordance with Section XIV (Dispute Resolution).

XXIII.
104.
Decree:

APPENDICES

The following appendices are attached to and incorporated into this Consent

“Appendix A” is the description and/or map of the Site.
“Appendix B” is the SOW.
“Appendix C” contains the access agreements.
“Appendix D” is the financial assurance.

43

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XXIV.

MODIFICATION

105. Except as provided in ¶ 13 (Modification of SOW or Related Deliverables),
material modifications to this Consent Decree, including the SOW, shall be in writing, signed by
the United States and Settling Defendant, and shall be effective upon approval by the Court.
Except as provided in ¶ 13, non-material modifications to this Consent Decree, including the
SOW, shall be in writing and shall be effective when signed by duly authorized representatives
of the United States and Settling Defendant. All modifications to the Consent Decree, other than
the SOW, also shall be signed by the State, or a duly authorized representative of the State, as
appropriate. A modification to the SOW shall be considered material if it implements a ROD
amendment that fundamentally alters the basic features of the selected remedy within the
meaning of 40 C.F.R. § 300.435(c)(2)(ii). Before providing its approval to any modification to
the SOW, the United States will provide the State with a reasonable opportunity to review and
comment on the proposed modification.
106. Nothing in this Consent Decree shall be deemed to alter the Court’s power to
enforce, supervise, or approve modifications to this Consent Decree.

XXV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
107. This Consent Decree shall be lodged with the Court for at least 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 that indicate that the
Consent Decree is inappropriate, improper, or inadequate. Settling Defendant consents to the
entry of this Consent Decree without further notice.
108. 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 any Party and the terms of the
agreement may not be used as evidence in any litigation between the Parties.

XXVI.

SIGNATORIES/SERVICE

109. Each undersigned representative of Settling Defendant and the State, as well as
the Deputy Assistant Attorney General for the Environment and Natural Resources Division of
the Department of Justice 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.
110. 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.
111. Settling Defendant shall identify, on the attached signature page, the name,
address, and telephone number 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 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
44

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Signature Pagefor Consent Decree regarding the Ashland Superfund Site

FOR THE UNITED STATES OF AMERICA:

Date

Bruce S. Gelber
Deputy Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division
Washington, D.C. 20530

~'

~~ f

,t

Thomas A. Benson
Senior Attorney
Sumona N. Majumdar
Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Washington, D.C. 20044-7611

John W. Vaudreuil
'United States Attorney
Western District of Wisconsin
Leslie K. Herje
Assistant United States Attorney
Western District of Wisconsin
222 West Washington Avenue
Suite 700
Madison, WI 53703

.~

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49

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APPENDIX A

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!

Virginia

Ely

Lake
Su p e r i o r

!

Mi n ne s ot a

Hancock

Duluth
!
! Superior

_
^

Ashland

!

Marquette

Ironwood

Rhinelander
!

Minneapolis

Eau
Claire

!

!

Iron
Mountain

!

!

Green
Bay
!

Appleton

!

Rochester
!

!

Winona

Oshkosh

Tomah

!

!

!
!

!

La Crosse

!

Sheboygan
!

Fond du Lac
West Bend

Mason
City

!

Madison

!

!

Milwaukee

Waterloo
!

Waukesha
! Racine

!

!

Io w a

Dubuque

Cedar
Rapids
!
Iowa
City
!

!

Rockford
!

Ill in o is
Davenport
!
!

!

!

Janesville

!

Marinette

!

Wausau

Wis c on si n

!

Lakeville
Faribault
!

!

Escanaba

Lake M ich iga n

!

St. Paul

!

Mi c hi ga n

!

!

Waukegan
Evanston

Elgin
Aurora
!

!

!

!

!

Joliet

Chicago
Gary

!

!

NOTES:
1. Basemap supplied by Esri and its data suppliers.

This drawing is neither a legally recorded map nor a survey and is
not intended to be used as one. This drawing is a compilation of
records, information and data used for reference purposes only.

³
0

250

500

Feet

NORTHERN STATES POWER COMPANY
FIGURE 1-1

ASHLAND/NSP LAKEFRONT SITE
PHASE 2 PROJECT AREA
Date: DECEMBER 2016
Drawn By: DAT

Path: X:\FOTH\IE\Xcel Energy\16X002-00\GIS\mxd\95 Percent Wet Dredge Design\Figure 1-1 Project Location.mxd

Revision Date:

Checked By: SDG

Date: 12/20/2016

Project ID: 16X002

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APPENDIX B

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REMEDIAL DESIGN/REMEDIAL ACTION
STATEMENT OF WORK
PHASE 2
ASHLAND/NORTHERN STATES POWER LAKEFRONT SUPERFUND SITE
Ashland, Ashland County, State of Wisconsin
EPA Region 5

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TABLE OF CONTENTS

1.

INTRODUCTION ...............................................................................................................1

2.

COMMUNITY INVOLVEMENT ......................................................................................3

3.

REMEDIAL DESIGN .........................................................................................................4

4.

REMEDIAL ACTION .........................................................................................................6

5.

REPORTING .....................................................................................................................10

6.

DELIVERABLES ..............................................................................................................11

7.

SCHEDULES ....................................................................................................................22

8.

STATE PARTICIPATION ................................................................................................24

9.

REFERENCES ..................................................................................................................24

ii

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1.

INTRODUCTION

1.1

Purpose of the SOW. This Statement of Work (SOW) sets forth the procedures and
requirements for implementing the Work.

1.2

Structure of the SOW.
Section 2 (Community Involvement) sets forth EPA’s, WDNR’s, and Settling
Defendant’s responsibilities for community involvement.
Section 3 (Remedial Design) sets forth the process for developing the Remedial Design,
which includes the submission of specified primary deliverables.
Section 4 (Remedial Action) sets forth requirements regarding the completion of the
Remedial Action, including primary deliverables related to completion of the Remedial
Action.
Section 5 (Reporting) sets forth Settling Defendant’s reporting obligations.
Section 6 (Deliverables) describes the content of the supporting deliverables and the
general requirements regarding Settling Defendant’s submission of, and EPA’s review of,
approval of, comment on, and/or modification of, the deliverables.
Section 7 (Schedules) sets forth the schedule for submitting the primary deliverables,
specifies the supporting deliverables that must accompany each primary deliverable, and
sets forth the schedule of milestones regarding the completion of the Remedial Action.
Section 8 (State Participation) addresses State participation.
Section 9 (References) provides a list of references, including URLs.

•
•
•

•
•

•

•
•
1.3

The Scope of the Remedy. The Phase 2 wet dredge project will be performed to achieve
cleanup goals and performance standards for the sediments at the Site, as described in the
September 2010 ROD, and the ESD issued on December 15, 2016. Total polynuclear
aromatic hydrocarbon (tPAH)-impacted sediments will be dredged and transported to
shore, offloaded and managed on-site, and then transported for off-site disposal.
The following key components shall provide the framework for the remedial design, with
further information described in the Remedial Design Work Plan, and the final details to
be addressed in the 100% design:
•

Barrier System: Prior to sediment removal, a series of water quality barriers shall be
deployed to control the transport and migration of sediment contaminants of concern
(“COCs”) from the dredge area, and other potential water impacts, such as surface
sheens, during dredging. Such barrier system is contemplated to include closure of
the east and west gaps in the Breakwater, as well as a curtain barrier system.

•

Wet Dredge Area: The dredge area will be defined by the extent of impacted
sediment in excess of the 9.5 mg/kg RAL, and divided into multiple dredge

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•

management units (DMUs). Sediments with NAPL, or tPAH concentrations
exceeding the RAL of 9.5 parts per million (ppm) tPAH will be targeted for removal.
The specific boundary areas will be determined based on existing sediment data,
including the 2016 pre-design investigation work.
Debris removal activities will include the clearing of objects and obstructions from
the Phase 2 Wet Dredge Area prior to dredging activities. The type of equipment
used for debris removal will be similar to that used for the Wet Dredge Pilot and will
be further described in the design reports. Equipment types considered may include:
an excavator equipped with a grapple, thumb, or rake attachment; a standard dredge
bucket; or an environmental bucket, as appropriate.

•

Sediment dredging activities can be considered in two categories: mechanical and
hydraulic. Mechanical dredging will be conducted following, or coinciding with,
debris removal and is the primary means to remove impacted sediment inventory
within the Phase 2 Wet Dredge Area.

•

Post-Dredge Confirmation Sampling: Post-dredge confirmation samples will be
collected from random locations in each of the DMAs. Post-dredge confirmation
samples will be collected following the completion of all inventory and any residual
(if necessary) dredging passes. Based on the results of the post-dredge confirmation
sampling, several possible actions may be taken. The post-dredge confirmation
sampling procedures will be similar to those set forth in the 2016 Wet Dredge Pilot
Study. The specific response steps will be further defined in the RDWP and final
100% Design.

•

Water Quality Monitoring: To assess water quality conditions during the Phase 2
Wet Dredge operations, monitoring will be performed at compliance locations
lakeside of the breakwater structure and sentinel locations landside of the breakwater
structure. Exceedances observed above Alert or Action Levels will trigger the
initiation of specific response steps that will be defined in the Phase 2 Wet Dredge
Monitoring Plan (an appendix of the 100% Design).

•

Air Quality Monitoring: Air quality during on-the water operations and processing
of sediment will be monitored during the Phase 2 Wet Dredge operations to ensure
applicable ARARs are not exceeded. Monitoring equipment and methods will be
similar to that used for the 2016 Wet Dredge Pilot Study. Activities that were not a
significant source of off-site odors during the Pilot Study will be conducted similarly
during the full-scale Phase 2 Wet Dredge. It is recognized that odors can be present
even if air emissions are below ambient and workspace air action levels developed
from ARARs (and therefore well below any human health concern). The Remedial
Design Work Plan identifies additional odor control measures to address community
concerns, if any, related to odors.

2

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1.4

The terms used in this SOW that are defined in CERCLA, in regulations promulgated
under CERCLA, or in the Consent Decree (CD), have the meanings assigned to them in
CERCLA, in such regulations, or in the CD, except that the term “Paragraph” or “¶”
means a paragraph of the SOW, and the term “Section” means a section of the SOW,
unless otherwise stated.
2.

2.1

COMMUNITY INVOLVEMENT

Community Involvement Responsibilities
(a)

EPA and WDNR have the lead responsibility for developing and implementing
community involvement activities at the Site. Previously during the RI/FS phase,
EPA and WDNR developed a Community Involvement Plan (CIP) for the Site.
Pursuant to 40 C.F.R. § 300.435(c), EPA and WDNR shall review the existing
CIP and determine whether it should be revised to describe further public
involvement activities during the Work that are not already addressed or provided
for in the existing CIP.

(b)

If requested by EPA and WDNR, Settling Defendant shall participate in
community involvement activities, including participation in (1) the preparation
of information regarding the Work for dissemination to the public, with
consideration given to including mass media and/or Internet notification, and
(2) public meetings that may be held or sponsored by EPA and WDNR to explain
activities at or relating to the Site. Settling Defendant’s support of EPA’s and
WDNR’s community involvement activities may include providing online access
to initial submissions and updates of deliverables to (1) any Community Advisory
Groups, (2) any Technical Assistance Grant recipients and their advisors, and (3)
other entities to provide them with a reasonable opportunity for review and
comment. EPA may describe in its CIP Settling Defendant’s responsibilities for
community involvement activities. All community involvement activities
conducted by Settling Defendant at EPA’s and WDNR’s request are subject to
EPA’s and WDNR’s oversight. Upon EPA’s request, Settling Defendant shall
establish a community information repository at or near the Site to house one
copy of the administrative record.

(c)

Settling Defendant’s CI Coordinator. If requested by EPA, Settling Defendant
shall, within [15] days, designate and notify EPA of Settling Defendant’s
Community Involvement Coordinator (Settling Defendant’s CI Coordinator).
Settling Defendant may hire a contractor for this purpose. Settling Defendant’s
notice must include the name, title, and qualifications of the Settling Defendant’s
CI Coordinator. Settling Defendant’s CI Coordinator is responsible for providing
support regarding EPA’s and WDNR’s community involvement activities,
including coordinating with EPA’s CI Coordinator regarding responses to the
public’s inquiries about the Site.
3

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3.

REMEDIAL DESIGN

3.1

Pre-Design Investigation Work Plan. On July 18, 2016, EPA, in consultation with
WDNR, approved the Pre-Design Investigation Work Plan submitted by Settling
Defendant. On November 23, 2016, EPA, in consultation with WDNR, approved the
Supplemental Pre-Design Investigation Work Plan submitted by Settling Defendant.
Copies of the approved PDI Work Plan and Supplemental PDI Work Plan are attached
hereto as Appendix A.

3.2

Remedial Design Work Plan. On December 19, 2016, EPA, in consultation with
WDNR, approved the Remedial Design Work Plan submitted by Settling Defendant.

3.3

Settling Defendant shall meet regularly with EPA and WDNR to discuss design issues as
necessary, as directed or determined by EPA or WDNR.

3.4

Treatability Study
(a)

(b)

If EPA determines that a treatability study is required, Settling Defendant shall
submit a TS Work Plan (TSWP) for EPA approval. Settling Defendant shall
prepare the TSWP in accordance with EPA’s Guide for Conducting Treatability
Studies under CERCLA, Final (Oct. 1992), as supplemented for Remedial Design
by the Remedial Design/Remedial Action Handbook, EPA 540/R-95/059 (June
1995).

(c)

Following completion of the TS, Settling Defendant shall submit a TS Evaluation
Report for EPA comment.

(d)

3.5

If necessary, Settling Defendant shall perform a Treatability Study (TS) for the
purpose of evaluating potential changes to dredged material handling or water
treatment.

EPA may require Settling Defendant to supplement the TS Evaluation Report
and/or to perform additional treatability studies if EPA determines that additional
treatability testing is required.

Intermediate (60%) Remedial Design. If required by EPA, Settling Defendant shall
submit an Intermediate (60%) Remedial Design for EPA’s comment. The Intermediate
Remedial Design must include:
(a)

Plans for implementing all Remedial Design activities identified in this SOW, in
the RDWP, or required by EPA to be conducted to develop the Remedial Design;

(b)

A description of the overall management strategy for performing the Remedial
Design, including a proposal for phasing of design and construction, if applicable;

4

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(c)

(d)

A description of the responsibility and authority of all organizations and key
personnel involved with the development of the Remedial Design;

(e)

Descriptions of any applicable permitting requirements and other regulatory
requirements;

(f)

Description of plans for obtaining access in connection with the Work, such as
property acquisition, property leases, and/or easements; and

(g)

A design criteria report, as described in the Remedial Design/Remedial Action
Handbook, EPA 540/R-95/059 (June 1995);

(h)

60% drawings and specifications;

(i)

Descriptions of permit requirements, if applicable;

(j)

A description of how the Remedial Action will be implemented in a manner that
minimizes environmental impacts in accordance with EPA’s Principles for
Greener Cleanups (Aug. 2009);

(k)

A description of monitoring and control measures to protect human health and the
environment, such as air monitoring and dust suppression, during the Remedial
Action;

(l)

Any proposed revisions to the Remedial Action Schedule that is set forth in ¶ 7.3
(Remedial Action Schedule); and

(m)

3.6

A description of the proposed general approach to contracting, construction,
operation, maintenance, and monitoring of the Remedial Action as necessary to
implement the Work;

The following additional supporting deliverables described in ¶ 6.7 (Supporting
Deliverables): Health and Safety Plan; Emergency Response Plan; Field Sampling
Plan; Quality Assurance Project Plan; Site Wide Monitoring Plan; Construction
Quality Assurance/Quality Control Plan; Transportation and Off-Site Disposal
Plan; O+M Plan, if applicable; O+M Manual, if applicable; and Institutional
Controls Implementation and Assurance Plan, if applicable.

Pre-Final (95%) Remedial Design. Settling Defendant shall submit the Pre-final (95%)
Remedial Design for EPA’s comment. The Pre-final Remedial Design must be a
continuation and expansion of the previous design submittal and must address EPA’s
comments regarding the Intermediate Remedial Design. The Pre-final Remedial Design
will serve as the approved Final (100%) Remedial Design if EPA approves the Pre-final
Remedial Design without comments. The Pre-final Remedial Design must include:

5

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(a)

(b)

A survey and engineering drawings showing existing Site features, such as
elements, property borders, easements, and Site conditions;

(c)

Pre-Final versions of the same elements and deliverables as are required for the
Intermediate Remedial Design;

(d)

A specification for photographic documentation of the Remedial Action; and

(e)
3.7

A complete set of construction drawings and specifications that are: (1) certified
by a registered professional engineer; (2) suitable for procurement; and (3) follow
the Construction Specifications Institute’s MasterFormat 2012;

Updates of all supporting deliverables required to accompany the 60% Remedial
Design.

Final (100%) Remedial Design. Settling Defendant shall submit the Final (100%)
Remedial Design for EPA approval. The Final Remedial Design must address EPA’s
comments on the Pre-final Remedial Design and must include final versions of all Prefinal Remedial Design deliverables.
4.

4.1

REMEDIAL ACTION

Remedial Action Work Plan. Settling Defendant shall submit a Remedial Action Work
Plan (RAWP) for EPA and WDNR approval that includes:
(a)
(b)

An updated health and safety plan that covers activities during the Remedial
Action; and

(c)

4.2

A proposed Remedial Action Construction Schedule in Gantt chart format;

Plans for satisfying permitting requirements, including obtaining permits for offsite activity and for satisfying substantive requirements of permits for on-site
activity.

Meetings and Inspections
(a)

Preconstruction Conference. Settling Defendant shall hold a preconstruction
conference with EPA and WDNR and others as directed or approved by EPA and
as described in the Remedial Design/Remedial Action Handbook, EPA 540/R95/059 (June 1995). Settling Defendant shall prepare minutes of the conference
and shall distribute the minutes to all Parties.

(b)

Periodic Meetings. During the construction portion of the Remedial Action
(Remedial Action Construction), Settling Defendant shall meet regularly with
EPA and WDNR, and others as directed or determined by EPA to discuss
6

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construction issues. Settling Defendant shall distribute an agenda and list of
attendees to all Parties prior to each meeting. Settling Defendant shall prepare
minutes of the meetings and shall distribute the minutes to all Parties.
(c)

Inspections
(1)

(2)

4.3

EPA or WDNR or their representatives shall conduct periodic inspections
of or have an on-site presence during the Work. At EPA’s or WDNR’s
request, the Supervising Contractor or other designee shall accompany
EPA or WDNR or their representatives during inspections.
Upon notification by EPA, after consultation with WDNR, of any
deficiencies in the Remedial Action Construction, Settling Defendant shall
take all necessary steps to correct the deficiencies and/or bring the
Remedial Action Construction into compliance with the approved Final
Remedial Design, any approved design changes, and/or the approved
RAWP. If applicable, Settling Defendant shall comply with any schedule
provided by EPA, after consultation with WDNR, in its notice of
deficiency.

Emergency Response and Reporting
(a)

Emergency Response and Reporting. If any event occurs during performance
of the Work that causes or threatens to cause a release of Waste Material on, at, or
from the Site and that either constitutes an emergency situation or that may
present an immediate threat to public health or welfare or the environment,
Settling Defendant shall: (1) immediately take all appropriate action to prevent,
abate, or minimize such release or threat of release; (2) immediately notify the
authorized EPA and WDNR officers (as specified in ¶ 4.3(c)) orally; and (3) take
such actions in consultation with the authorized EPA officer and in accordance
with all applicable provisions of the Health and Safety Plan, the Emergency
Response Plan, and any other deliverable approved by EPA under the SOW.

(b)

Release Reporting. Upon the occurrence of any event during performance of the
Work that Settling Defendant is required to report pursuant to Section 103 of
CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency Planning and
Community Right-to-know Act (EPCRA), 42 U.S.C. § 11004, Settling Defendant
shall immediately notify the authorized EPA and WDNR officers orally.

(c)

The “authorized EPA and WDNR officers” for purposes of immediate oral
notifications and consultations under ¶ 4.3(a) and ¶ 4.3(b) is the EPA Project
Coordinator, the EPA Alternate Project Coordinator (if the EPA Project
Coordinator is unavailable), or the EPA Emergency Response Unit, Region 5 (if

7

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neither EPA Project Coordinator is available), and the WDNR Project
Coordinator.
(d)

(e)
4.4

For any event covered by ¶ 4.3(a) and ¶ 4.3(b), Settling Defendant shall: (1)
within [14] days after the onset of such event, submit a report to EPA and WDNR
describing the actions or events that occurred and the measures taken, and to be
taken, in response thereto; and (2) within 30 days after the conclusion of such
event, submit a report to EPA and WDNR describing all actions taken in response
to such event.
The reporting requirements under ¶ 4.3 are in addition to the reporting required by
CERCLA § 103 or EPCRA § 304.

Off-Site Shipments
(a)

Settling Defendant may ship hazardous substances, pollutants, and contaminants
from the Site to an off-Site facility only if they comply with Section 121(d)(3) of
CERCLA, 42 U.S.C. § 9621(d)(3), and 40 C.F.R. § 300.440. Settling Defendant
will be deemed to be in compliance with CERCLA § 121(d)(3) and 40 C.F.R. §
300.440 regarding a shipment if Settling Defendant obtains a prior determination
from EPA that the proposed receiving facility for such shipment is acceptable
under the criteria of 40 C.F.R. § 300.440(b).

(b)

Settling Defendant may ship Waste Material from the Site to an out-of-state waste
management facility only if, prior to any shipment, it provides notice to the
appropriate state environmental official in the receiving facility’s state and to the
EPA Project Coordinator. This notice requirement will not apply to any off-Site
shipments when the total quantity of all such shipments does not exceed 10 cubic
yards. The notice must include the following information, if available: (1) the
name and location of the receiving facility; (2) the type and quantity of Waste
Material to be shipped; (3) the schedule for the shipment; and (4) the method of
transportation. Settling Defendant also shall notify the state environmental
official referenced above and the EPA Project Coordinator of any major changes
in the shipment plan, such as a decision to ship the Waste Material to a different
out-of-state facility. Settling Defendant shall provide the notice after the award of
the contract for Remedial Action construction and before the Waste Material is
shipped.

(c)

Settling Defendant may ship Investigation Derived Waste (IDW) from the Site to
an off-Site facility only if they comply with Section 121(d)(3) of CERCLA, 42
U.S.C. § 9621(d)(3), 40 C.F.R. § 300.440, EPA’s Guide to Management of
Investigation Derived Waste, OSWER 9345.3-03FS (Jan. 1992), and any IDWspecific requirements contained in the ROD. Wastes shipped off-Site to a
laboratory for characterization, and RCRA hazardous wastes that meet the
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requirements for an exemption from RCRA under 40 CFR § 261.4(e) shipped offsite for treatability studies, are not subject to 40 C.F.R. § 300.440.
4.5

Certification of Remedial Action Completion
(a)

(b)

Remedial Action Report. Following the inspection, Settling Defendant shall
submit a Remedial Action Report to EPA requesting EPA’s Certification of
Remedial Action Completion. The report must: (1) include certifications by a
registered professional engineer and by Settling Defendant’s Project Coordinator
that the Remedial Action is complete; (2) include as-built drawings signed and
stamped by a registered professional engineer; (3) be prepared in accordance with
Chapter 2 (Remedial Action Completion) of EPA’s Close Out Procedures for
NPL Sites guidance (May 2011); (4) contain monitoring data to demonstrate that
Performance Standards have been achieved; and (5) be certified in accordance
with ¶ 6.5 (Certification).

(c)

If EPA, after consultation with WDNR, concludes that the Remedial Action is not
Complete, EPA shall so notify Settling Defendant. EPA’s notice must include a
description of any deficiencies. EPA’s notice may include a schedule for
addressing such deficiencies or may require Settling Defendant to submit a
schedule for EPA approval. Settling Defendant shall perform all activities
described in the notice in accordance with the schedule.

(d)

4.6

Remedial Action Completion Inspection. The Remedial Action is “Complete”
for purposes of this ¶ 4.5 when it has been fully performed and the Performance
Standards have been achieved. Settling Defendant shall schedule an inspection
for the purpose of obtaining EPA’s Certification of Remedial Action Completion.
The inspection must be attended by Settling Defendant and EPA and WDNR
and/or their representatives.

If EPA concludes based on the initial or any subsequent Remedial Action Report
requesting Certification of Remedial Action Completion, that the Remedial
Action is Complete, EPA shall so certify to Settling Defendant. This certification
will constitute the Certification of Remedial Action Completion for purposes of
the CD, including Section [XVI] of the CD (Covenants by Plaintiff[s]).
Certification of Remedial Action Completion will not affect Settling Defendant’s
remaining obligations under the CD.

Periodic Review Support Plan (PRSP). If a PRSP is necessary, Settling Defendant
shall submit the PRSP for EPA approval. If needed, the PRSP will address the studies
and investigations that Settling Defendant will conduct to support EPA’s reviews of
whether the Remedial Action is protective of human health and the environment in
accordance with Section 121(c) of CERCLA, 42 U.S.C. § 9621(c) (also known as “Fiveyear Reviews”). Settling Defendant will develop the plan in accordance with
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Comprehensive Five-year Review Guidance, OSWER 9355.7-03B-P (June 2001), and
any other relevant five-year review guidances.
4.7

Certification of Work Completion
(a)

Work Completion Inspection. Settling Defendant shall schedule an inspection
for the purpose of obtaining EPA’s Certification of Work Completion. The
inspection must be attended by Settling Defendant and EPA and WDNR and/or
their representatives.

(b)

Work Completion Report. Following the inspection, Settling Defendant shall
submit a report to EPA and WDNR requesting EPA’s and WDNR’s Certification
of Work Completion. The report must: (1) include certifications by a registered
professional engineer and by Settling Defendant’s Project Coordinator that the
Work, including all O&M activities, is complete; and (2) be certified in
accordance with ¶ 6.5 (Certification). If the Remedial Action Report submitted
under ¶ 4.5(b) includes all elements required under this ¶ 4.7(b), then the
Remedial Action Report suffices to satisfy all requirements under this ¶ 4.7(b).

(c)

If EPA, after consultation with WDNR, concludes that the Work is not complete,
EPA shall so notify Settling Defendant. EPA’s notice must include a description
of the activities that Settling Defendant must perform to complete the Work.
EPA’s notice must include specifications and a schedule for such activities or
must require Settling Defendant to submit specifications and a schedule for EPA
approval. Settling Defendant shall perform all activities described in the notice or
in the EPA-approved specifications and schedule.

(d)

If EPA and WDNR, conclude based on the initial or any subsequent report
requesting Certification of Work Completion, that the Work is complete, EPA and
WDNR shall so certify in writing to Settling Defendant. Issuance of the
Certification of Work Completion does not affect the following continuing
obligations: (1) activities under the Periodic Review Support Plan; (2) obligations
under Sections [VIII] (Property Requirements), [XX] (Retention of Records), and
[XIX] (Access to Information) of the CD; (3) Institutional Controls obligations as
provided in the ICIAP; (4) ongoing O&M activities; (5) obligations under any
state permits, including any permit equivalency issued under Section 30.20(2) of
the Wisconsin Statutes; and (6) reimbursement of EPA’s Future Response Costs
under Section [X] (Payments for Response Costs) of the CD.
5.

5.1

REPORTING

Progress Reports. Commencing with the first month following lodging of the CD and
until EPA approves the Remedial Action Completion Report, Settling Defendant shall
submit progress reports to EPA and WDNR on a monthly basis, or as otherwise requested
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by EPA. The reports must cover all activities that took place during the prior reporting
period, including:
(a)
(b)

A summary of all results of sampling, tests, and all other data received or
generated by Settling Defendant;

(c)

A description of all deliverables that Settling Defendant submitted to EPA;

(d)

A description of all activities relating to Remedial Action Construction that are
scheduled for the next six weeks;

(e)

An updated Remedial Action Construction Schedule, together with information
regarding percentage of completion, delays encountered or anticipated that may
affect the future schedule for implementation of the Work, and a description of
efforts made to mitigate those delays or anticipated delays;

(f)

A description of any modifications to the work plans or other schedules that
Settling Defendant has proposed or that have been approved by EPA; and

(g)

5.2

The actions that have been taken toward achieving compliance with the CD;

A description of all activities undertaken in support of the Community
Involvement Plan (CIP) during the reporting period and those to be undertaken in
the next six weeks.

Notice of Progress Report Schedule Changes. If the schedule for any activity
described in the Progress Reports, including activities required to be described under
¶ 5.1(d), changes, Settling Defendant shall notify EPA and WDNR of such change at
least 7 days before performance of the activity.
6.

DELIVERABLES

6.1

Applicability. Settling Defendant shall submit deliverables for EPA approval or for EPA
comment as specified in the SOW. If neither is specified, the deliverable does not require
EPA’s approval or comment. Paragraphs 6.2 (In Writing) through 6.4 (Technical
Specifications) apply to all deliverables. Paragraph 6.5 (Certification) applies to any
deliverable that is required to be certified. Paragraph 6.6 (Approval of Deliverables)
applies to any deliverable that is required to be submitted for EPA approval.

6.2

In Writing. As provided in [¶ 105] of the CD, all deliverables under this SOW must be
in writing unless otherwise specified.

6.3

General Requirements for Deliverables. All deliverables must be submitted by the
deadlines in the Remedial Design Schedule or RA Schedule, as applicable. Settling
Defendant shall submit all deliverables to EPA and WDNR in electronic form. Technical
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specifications for sampling and monitoring data and spatial data are addressed in ¶ 7.4.
All other deliverables shall be submitted to EPA and WDNR in the electronic form
specified by the EPA Project Coordinator. If any deliverable includes maps, drawings, or
other exhibits that are larger than 8.5” by 11”, Settling Defendant shall also provide EPA
and WDNR with paper copies of such exhibits.
6.4

Technical Specifications
(a)

(b)

Spatial data, including spatially-referenced data and geospatial data, should be
submitted: (1) in the ESRI File Geodatabase format; and (2) as unprojected
geographic coordinates in decimal degree format using North American Datum
1983 (NAD83) or World Geodetic System 1984 (WGS84) as the datum. If
applicable, submissions should include the collection method(s). Projected
coordinates may optionally be included but must be documented. Spatial data
should be accompanied by metadata, and such metadata should be compliant with
the Federal Geographic Data Committee (FGDC) Content Standard for Digital
Geospatial Metadata and its EPA profile, the EPA Geospatial Metadata Technical
Specification. An add-on metadata editor for ESRI software, the EPA Metadata
Editor (EME), complies with these FGDC and EPA metadata requirements and is
available at https://edg.epa.gov/EME/.

(c)

Each file must include an attribute name for each site unit or sub-unit submitted.
Consult http://www.epa.gov/geospatial/policies.html for any further available
guidance on attribute identification and naming.

(d)
6.5

Sampling and monitoring data should be submitted in standard regional Electronic
Data Deliverable (EDD) format. Other delivery methods may be allowed if
electronic direct submission presents a significant burden or as technology
changes.

Spatial data submitted by Settling Defendant does not, and is not intended to,
define the boundaries of the Site.

Certification. All deliverables that require compliance with this ¶ 6.5 must be signed by
the Settling Defendant’s Project Coordinator, or other responsible official of Settling
Defendant, and must contain the following statement:

I certify under penalty of law that this document and all attachments were prepared under my
direction or supervision in accordance with a system designed to assure that qualified personnel
properly gather and evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for gathering the
information, the information submitted is, to the best of my knowledge and belief, true, accurate,
and complete. I have no personal knowledge that the information submitted is other than true,

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accurate, and complete. I am aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment for knowing violations.
6.6

Approval of Deliverables
(a)

Initial Submissions
(1)

After review of any deliverable that is required to be submitted for EPA
approval under the CD or the SOW, EPA shall: (i) approve, in whole or in
part, the submission; (ii) approve the submission upon specified
conditions; (iii) disapprove, in whole or in part, the submission; or (iv) any
combination of the foregoing.

(2)

EPA also may modify the initial submission to cure deficiencies in the
submission if: (i) EPA determines that disapproving the submission and
awaiting a resubmission would cause substantial disruption to the Work;
or (ii) previous submission(s) have been disapproved due to material
defects and the deficiencies in the initial submission under consideration
indicate a bad faith lack of effort to submit an acceptable deliverable.

(b)

Resubmissions. Upon receipt of a notice of disapproval under ¶ 6.6(a) (Initial
Submissions), or if required by a notice of approval upon specified conditions
under ¶ 6.6(a), Settling Defendant shall, within 21 days or such longer time as
specified by EPA in such notice, correct the deficiencies and resubmit the
deliverable for approval. After review of the resubmitted deliverable, EPA, after
a reasonable opportunity for review and comment by WDNR, may: (1) approve,
in whole or in part, the resubmission; (2) approve the resubmission upon specified
conditions; (3) modify the resubmission; (4) disapprove, in whole or in part, the
resubmission, requiring Settling Defendant to correct the deficiencies; or (5) any
combination of the foregoing.

(c)

Implementation. Upon approval, approval upon conditions, or modification by
EPA under ¶ 6.6(a) (Initial Submissions) or ¶ 6.6(b) (Resubmissions), of any
deliverable, or any portion thereof: (1) such deliverable, or portion thereof, will be
incorporated into and enforceable under the CD; and (2) Settling Defendant shall
take any action required by such deliverable, or portion thereof. The
implementation of any non-deficient portion of a deliverable submitted or
resubmitted under ¶ 6.6(a) or ¶ 6.6(b) does not relieve Settling Defendant of any
liability for stipulated penalties under Section [XV] (Stipulated Penalties) of the
CD.

(d)

Technical Impracticability. Settling Defendant may petition EPA to waive
compliance with one or more of the Phase 2 Performance Standards based on a

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demonstration that it is technically impracticable, from an engineering
perspective, to attain those standards.
(1)

The determination of whether attainment of a particular Performance
Standard is technically impracticable will be made by EPA, after
consultation with WDNR, and will be based on the engineering feasibility
and reliability of the remedy. If Settling Defendant objects to EPA’s
decision it may, within 30 days after EPA’s notification, seek dispute
resolution under Section XIV of the Phase 2 Consent Decree (Record
Review).

(2)

Neither the submission of a petition by Settling Defendant nor the granting
of a waiver of one or more Performance Standards by EPA pursuant to
this Section shall relieve Settling Defendant of its obligation to (i)
continue to operate the Phase 2 remedy until the time specified by EPA,
(ii) attain Performance Standards for any contaminants for which EPA has
not specifically granted a waiver, and (iii) complete any other obligation
under this Consent Decree.

(3)

Such a petition shall include, at a minimum, the information and analyses
required by EPA guidance and the site-specific information described in
Subparagraphs (i) through (xii), as follows:
(i)

A list of each Performance Standard for which a waiver is sought,
and the spatial limits for which they are sought. The justification
for a waiver required by items (i) - (xii) below must be made for
each contaminant or class of contaminants for which a waiver is
sought.

(ii)

A description of known or suspected contaminant sources at the
site, including dense non-aqueous phase liquid ("DNAPL")
contaminants. The petition also shall describe source control and
removal efforts that have been implemented and the effectiveness
of those efforts.

(iii)

Comprehensive monitoring data and an evaluation of the remedy
implemented, along with any other remediation actions performed
which enhanced or affected this remedy. The monitoring data and
performance evaluation shall demonstrate, using an appropriate
engineering and statistical analysis, that the remedy has been
operating for a sufficiently long period of time to permit a reliable
analysis of its performance and its ability to achieve Performance
Standards. The petition also shall demonstrate that the remedy has
been designed, constructed, and operated in a manner which is
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consistent with the RD/RA Work Plan and the conceptual models
for site contamination, and that the system has been modified or
enhanced to the extent practicable to optimize its performance in
an effort to attain the Performance Standards.
(iv)

A description of the conceptual model for site contamination,
including geologic, hydrogeologic, and geochemical
characterizations. A description of the distribution; characteristics;
migration, potential migration and fate; and quantities of
contaminants present at the site. These descriptions shall
incorporate pertinent data obtained during the design, construction,
and operation of the remedial system, as well as information
obtained during previous site characterization efforts.

(v)

An analysis of the performance of the remedy which describes the
spatial and temporal trends in contaminant concentrations; for
example, whether contaminant migration has been effectively
prevented, and whether the concentrations of contaminants have
been slowly decreasing. The petition shall discuss the
hydrogeochemical factors which influence the remedy's ability to
achieve the Performance Standards, and demonstrate how these
factors inhibit the remedial system achieving the Performance
Standards.

(vi)

The mass of contaminants removed by the remedial system, and an
estimate of the mass of contaminants remaining, including the
degree of uncertainty involved in this estimate.

(vii)

A demonstration, including appropriate engineering analysis, that
other conventional or innovative technologies which are
potentially applicable at the site cannot attain the Performance
Standards in a manner that is practicable from an engineering
perspective. This demonstration should include a prediction of the
level of cleanup other technologies can attain.

(viii) A predictive analysis of the approximate time frame required to
achieve the Performance Standards with the existing remedy, and
any alternative remedial strategies, if applicable, using methods
appropriate for the data and the site-specific conditions. Such
analyses also should address the uncertainty inherent in these
predictions.
(ix)

For the implemented remedy and for any alternative remedial
strategies proposed as part of this petition, identification of the
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potential pathways by which humans and the environment are or
may become exposed to the contaminated ground water left in
place. Contaminant concentration and other data needed for EPA
to perform risk analyses shall be provided as part of the petition.
(x)

(xi)

A description of any additional monitoring required to verify
compliance with the alternative Performance Standards or remedial
requirements. EPA will make the final determination regarding the
scope of the monitoring requirements under the alternative
remedial strategy.

(xii)

(4)

A description of the proposed alternative remedial strategy, or a
comparison of two or more strategy options, proposed to be
implemented by the Settling Defendant if a waiver is granted, and
the level of cleanup and control of hazardous substances,
pollutants, and contaminants the proposed alternative strategy or
strategies will attain. Alternative remedial strategies must attain a
level of cleanup and control of further releases which ensure
protection of human health and the environment, and prevent
further migration of contaminants. Alternative remedial strategies
may include the establishment of alternative Performance
Standards, site-specific cleanup levels, and other alternative
remediation requirements to ensure protectiveness. Proposed
modifications to the existing remedy, and any additional response
actions proposed to be undertaken, shall be described by the
Settling Defendant in detail. EPA will make the final
determination regarding the components of the alternative remedial
strategy which shall be implemented at the site by the Settling
Defendant.

Other information or analyses not included above, but which
Settling Defendant or EPA considers appropriate to making a
determination on the petition.

Upon receipt of all information required by subparagraph (d)(3), EPA will
review and consider the information in the petition and any other relevant
information. After opportunity for review and comment by WDNR, EPA
will determine (1) whether compliance with any of the Performance
Standards shall be waived; (2) what, if any, alternative remediation
requirements, including alternative Performance Standards and other
protective measures, will be established by EPA; (3) whether
modifications to the remedial action or any additional response actions are
required; and (4) whether revised interim milestone and completion dates
are needed for attainment of Performance Standards or alternative
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Performance Standards under this consent decree. EPA's determination on
the petition will be consistent with the National Contingency Plan
(“NCP”), Section 121(d) of CERCLA, and any other applicable laws,
regulations, and guidance in effect at the time.
(5)

(6)

6.7

If EPA, after a reasonable opportunity for review and comment by
WDNR, grants any petition or other relief pursuant to this Section, that
decision will be reflected in a post-ROD decision document, as required
by the NCP. If modification of the Phase 2 Consent Decree or this SOW
is required to implement EPA’s decision, such modification will be filed
and, if necessary, Court approval will be sought in accordance with
Section XXIV of the Phase 2 Consent Decree (Modification).
Upon issuance of EPA’s post-ROD decision document, filing of the
revised SOW and Consent Decree with the Court, and if necessary,
issuance of a court order approving the modification, Settling Defendant
shall implement the modifications selected by EPA to the remedial action
or additional response actions relating to ground water contamination, and
achieve and maintain all Performance Standards, alternative Performance
Standards, and remediation requirements established pursuant to this
Section. Unless expressly modified by EPA’s decision on the petition
submitted hereunder, all requirements of this Consent Decree, including
Settling Defendant’s obligation to achieve the alternative Performance
Standards and to conduct long-term monitoring, shall continue in force
and effect.

Supporting Deliverables. Settling Defendant shall submit each of the following
supporting deliverables for EPA approval, except as specifically provided. Settling
Defendant shall develop the deliverables in accordance with all applicable regulations,
guidances, and policies (see Section 9 (References)). Settling Defendant shall update
each of these supporting deliverables as necessary or appropriate during the course of the
Work, and/or as requested by EPA.
(a)

Health and Safety Plan. The Health and Safety Plan (HASP) describes all
activities to be performed to protect on site personnel and area residents from
physical, chemical, and all other hazards posed by the Work. Settling Defendant
shall develop the HASP in accordance with EPA’s Emergency Responder Health
and Safety and Occupational Safety and Health Administration (OSHA)
requirements under 29 C.F.R. §§ 1910 and 1926. The HASP should cover
Remedial Design activities and should be, as appropriate, updated to cover
activities during the Remedial Action and updated to cover activities after
Remedial Action completion. EPA does not approve the HASP, but will review it
to ensure that all necessary elements are included and that the plan provides for
the protection of human health and the environment.
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(b)

Emergency Response Plan. The Emergency Response Plan (ERP) must
describe procedures to be used in the event of an accident or emergency at the
Site (for example, power outages, water impoundment failure, treatment plant
failure, slope failure, etc.). The ERP must include:
(1)

Name of the person or entity responsible for responding in the event of an
emergency incident;

(2)

Plan and date(s) for meeting(s) with the local community, including local,
State, and federal agencies involved in the cleanup, as well as local
emergency squads and hospitals;

(3)

Spill Prevention, Control, and Countermeasures (SPCC) Plan (if
applicable), consistent with the regulations under 40 C.F.R. Part 112,
describing measures to prevent, and contingency plans for, spills and
discharges;

(4)

Notification activities in accordance with ¶ 4.3(b) (Release Reporting) in
the event of a release of hazardous substances requiring reporting under
Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the
Emergency Planning and Community Right-to-know Act (EPCRA),
42 U.S.C. § 11004; and

(5)

A description of all necessary actions to ensure compliance with
Paragraph [11] (Emergencies and Releases) of the CD in the event of an
occurrence during the performance of the Work that causes or threatens a
release of Waste Material from the Site that constitutes an emergency or
may present an immediate threat to public health or welfare or the
environment.

(c)

Field Sampling Plan. The Field Sampling Plan (FSP) addresses all sample
collection activities. The FSP must be written so that a field sampling team
unfamiliar with the project would be able to gather the samples and field
information required. Settling Defendant shall develop the FSP in accordance
with Guidance for Conducting Remedial Investigations and Feasibility Studies,
EPA/540/G 89/004 (Oct. 1988).

(d)

Quality Assurance Project Plan. The Quality Assurance Project Plan (QAPP)
augments the FSP and addresses sample analysis and data handling regarding the
Work. The QAPP must include a detailed explanation of Settling Defendant’s
quality assurance, quality control, and chain of custody procedures for all
treatability, design, compliance, and monitoring samples. Settling Defendant
shall develop the QAPP in accordance with EPA Requirements for Quality
Assurance Project Plans, QA/R-5, EPA/240/B-01/003 (Mar. 2001, reissued May
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2006); Guidance for Quality Assurance Project Plans, QA/G-5, EPA/240/R
02/009 (Dec. 2002); and Uniform Federal Policy for Quality Assurance Project
Plans, Parts 1-3, EPA/505/B-04/900A though 900C (Mar. 2005). The QAPP also
must include procedures:
(1)

(2)

To ensure that Settling Defendant’s Labs analyze all samples submitted by
EPA pursuant to the QAPP for quality assurance monitoring;

(3)

To ensure that Settling Defendant’s Labs perform all analyses using EPAaccepted methods (i.e., the methods documented in USEPA Contract
Laboratory Program Statement of Work for Inorganic Analysis, ILM05.4
(Dec. 2006); USEPA Contract Laboratory Program Statement of Work for
Organic Analysis, SOM01.2 (amended Apr. 2007); and USEPA Contract
Laboratory Program Statement of Work for Inorganic Superfund Methods
(Multi-Media, Multi-Concentration), ISM01.2 (Jan. 2010)); or other
methods acceptable to EPA;

(4)

To ensure that Settling Defendant’s Labs participate in an EPA-accepted
QA/QC program or other program QA/QC acceptable to EPA;

(5)

For Settling Defendant to provide EPA and the State with notice at least
28 days prior to any sample collection activity;

(6)

For Settling Defendant to provide split samples and/or duplicate samples
to EPA and the State upon request;

(7)

For EPA and the State to take any additional samples that they deem
necessary;

(8)

For EPA and the State to provide to Settling Defendant, upon request, split
samples and/or duplicate samples in connection with EPA’s and the
State’s oversight sampling; and

(9)

(e)

To ensure that EPA and the State and their authorized representative have
reasonable access to laboratories used by Settling Defendant in
implementing the CD (Settling Defendant’s Labs);

For Settling Defendant to submit to EPA and the State all sampling and
tests results and other data in connection with the implementation of the
CD.

Site Wide Monitoring Plan. The purpose of the Site Wide Monitoring Plan
(SWMP) is to obtain baseline information regarding the extent of contamination
in affected media at the Site; to obtain information, through short- and long- term
monitoring, about the movement of and changes in contamination throughout the
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Site, before and during implementation of the Remedial Action; to obtain
information regarding contamination levels to determine whether Performance
Standards are achieved; and to obtain information to determine whether to
perform additional actions, including further Site monitoring. The SWMP must
include:
(1)
(2)

Description of the data collection parameters, including existing and
proposed monitoring devices and locations, schedule and frequency of
monitoring, analytical parameters to be monitored, and analytical methods
employed;

(3)

Description of how performance data will be analyzed, interpreted, and
reported, and/or other Site-related requirements;

(4)

Description of verification sampling procedures;

(5)

Description of deliverables that will be generated in connection with
monitoring, including sampling schedules, laboratory records, monitoring
reports, and monthly and annual reports to EPA and State agencies; and

(6)

(f)

Description of the environmental media to be monitored;

Description of proposed additional monitoring and data collection actions
(such as increases in frequency of monitoring, and/or installation of
additional monitoring devices in the affected areas) in the event that
results from monitoring devices indicate changed conditions (such as
higher than expected concentrations of the contaminants of concern or
groundwater contaminant plume movement).

Construction Quality Assurance/Quality Control Plan (CQA/QCP). The
purpose of the Construction Quality Assurance Plan (CQAP) is to describe
planned and systemic activities that provide confidence that the Remedial Action
construction will satisfy all plans, specifications, and related requirements,
including quality objectives. The purpose of the Construction Quality Control
Plan (CQCP) is to describe the activities to verify that Remedial Action
construction has satisfied all plans, specifications, and related requirements,
including quality objectives. The CQA/QCP must:
(1)

Identify, and describe the responsibilities of, the organizations and
personnel implementing the CQA/QCP;

(2)

Describe the Performance Standards required to be met to achieve
Completion of the Remedial Action;

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(3)

(4)

Describe verification activities, such as inspections, sampling, testing,
monitoring, and production controls, under the CQA/QCP;

(5)

Describe industry standards and technical specifications used in
implementing the CQA/QCP;

(6)

Describe procedures for tracking construction deficiencies from
identification through corrective action;

(7)

Describe procedures for documenting all CQA/QCP activities; and

(8)
(g)

Describe the activities to be performed: (i) to provide confidence that
Performance Standards will be met; and (ii) to determine whether
Performance Standards have been met;

Describe procedures for retention of documents and for final storage of
documents.

O&M Plan. If EPA, determines that O&M is required, the O&M Plan will
describe the requirements for inspecting, operating, and maintaining the Remedial
Action. Settling Defendant shall develop the O&M Plan in accordance with
Operation and Maintenance in the Superfund Program, OSWER 9200.1 37FS,
EPA/540/F-01/004 (May 2001). The O&M Plan will include the following
additional requirements:
(1)

Description of Performance Standards required to be met to implement the
ROD;

(2)

Description of activities to be performed: (i) to provide confidence that
Performance Standards will be met; and (ii) to determine whether
Performance Standards have been met;

(3)

O&M Reporting. Description of records and reports that will be
generated during O&M, such as daily operating logs, laboratory records,
records of operating costs, reports regarding emergencies, personnel and
maintenance records, monitoring reports, and monthly and annual reports
to EPA and State agencies;

(4)

Description of corrective action in case of systems failure, including:
(i) alternative procedures to prevent the release or threatened release of
Waste Material which may endanger public health and the environment or
may cause a failure to achieve Performance Standards; (ii) analysis of
vulnerability and additional resource requirements should a failure occur;
(iii) notification and reporting requirements should O&M systems fail or

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be in danger of imminent failure; and (iv) community notification
requirements; and
(5)

Description of corrective action to be implemented in the event that
Performance Standards are not achieved; and a schedule for implementing
these corrective actions.

(h)

O&M Manual. If EPA, determines that O&M is required, the O&M Manual will
serve as a guide to the purpose and function of the equipment and systems that
make up the remedy. Settling Defendant will develop the O&M Manual in
accordance with Operation and Maintenance in the Superfund Program, OSWER
9200.1 37FS, EPA/540/F-01/004 (May 2001).

(i)

Institutional Controls Implementation and Assurance Plan. If applicable, the
Institutional Controls Implementation and Assurance Plan (ICIAP) will describe
plans to implement, maintain, and enforce the Institutional Controls (ICs) at the
Site. Settling Defendant shall develop the ICIAP in accordance with Institutional
Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing
Institutional Controls at Contaminated Sites, OSWER 9355.0-89, EPA/540/R09/001 (Dec. 2012), and Institutional Controls: A Guide to Preparing
Institutional Controls Implementation and Assurance Plans at Contaminated
Sites, OSWER 9200.0-77, EPA/540/R-09/02 (Dec. 2012).
7.

7.1

SCHEDULES

Applicability and Revisions. All deliverables and tasks required under this SOW must
be submitted or completed by the deadlines or within the time durations listed in the
Remedial Design and Remedial Action Schedules set forth below. Settling Defendant
may submit proposed revised Remedial Design Schedules or Remedial Action Schedules
for EPA approval. Upon EPA’s approval, the revised Remedial Design and/or Remedial
Action Schedules supersede the Remedial Design and Remedial Action Schedules set
forth below, and any previously-approved Remedial Design and/or Remedial Action
Schedules. Settling Defendant may accelerate the dates in the Remedial Design
Schedules and Remedial Action Schedules at its option consistent with the goals
identified in this SOW.

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7.2

1

Remedial Design Schedule
Description of
Deliverable, Task
Pre-Design Investigation
Work Plan

¶ Ref.
3.1

2

Remedial Design Work
Plan

3.2

3

Intermediate (60%)
Remedial Design
Pre-final (95%) Remedial
Design

3.5

Final (100%) Remedial
Design

Deadline
The PDI Work Plan was submitted on July 8,
2016, and approved by EPA, in consultation
with WDNR, on July 18, 2016. The
Supplemental PDI Work Plan was submitted
on November 21, 2016, and approved by EPA
in consultation with WDNR, on November
23, 2016.
The Remedial Design Work Plan was
submitted on September 29, 2016, and
approved by EPA, in consultation with
WDNR, on December 19, 2016.
The 60% Design was submitted on September
30, 2016.
By December 22, 2016, or within 60 days
after EPA comments on Intermediate (60%)
Remedial Design if comments not received
by October 21, 2016.
By January 31, 2017, or within 20 days after
EPA comments on Pre-final Remedial Design
if comments not received by January 13,
2017.

3.7

4

5

7.3

3.6

Remedial Action Schedule
Description of
Deliverable / Task

¶ Ref.

1
2

RAWP
Pre-Construction Conference

4.1
4.2(a)

3

6.7(i)

5

Start of Construction
Draft ICIAP Plan (if
applicable
Final ICIAP Plan (if
applicable)

6
7
8

Final Inspection
Remedial Action Report
Work Completion Report

4.5(a)
4.5(b)
4.7(b)

4

9

Periodic Review Support Plan

6.7(i)

Deadline
Within 30 days after EPA approval of the
100% Remedial Design.
Prior to the start of Construction
Within 30 days after Pre-Construction
Conference
Within 90 days after completion of
dredging
No later than Pre-final Inspection
15 days after Completion of Work
identified in Pre-final Inspection Report
30 days after Final Inspection
Five years after Start of Remedial Action
Construction

4.6
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8.

STATE PARTICIPATION

8.1

Copies. Settling Defendant shall, at any time they send a deliverable to EPA, send a
copy of such deliverable to the WDNR. EPA shall, at any time it sends a notice,
authorization, approval, disapproval, or certification to Settling Defendant, send a copy of
such document to the State.

8.2

Review and Comment. WDNR will have a reasonable opportunity for review and
comment prior to:
(a)
(b)

8.3

Any EPA approval or disapproval under ¶ 6.6 (Approval of Deliverables) of any
deliverables that are required to be submitted for EPA approval; and
Any disapproval of, or Certification of Remedial Action Completion under ¶ 4.5
(Certification of Remedial Action Completion), and any disapproval of, or
Certification of Work Completion under ¶ 4.7 (Certification of Work
Completion).

Review and Approve. WDNR shall have the right to review and approve the Remedial
Action Work Plans and the Certification of Work Completion.
9.

9.1

REFERENCES

The following regulations and guidance documents, among others, apply to the Work.
Any item for which a specific URL is not provided below is available on one of the two
EPA Web pages listed in ¶ 9.2:
(a)

A Compendium of Superfund Field Operations Methods, OSWER 9355.0-14,
EPA/540/P-87/001a (Aug. 1987).

(b)

CERCLA Compliance with Other Laws Manual, Part I: Interim Final, OSWER
9234.1-01, EPA/540/G-89/006 (Aug. 1988).

(c)

Guidance for Conducting Remedial Investigations and Feasibility Studies,
OSWER 9355.3-01, EPA/540/G-89/004 (Oct. 1988).

(d)

CERCLA Compliance with Other Laws Manual, Part II, OSWER 9234.1-02,
EPA/540/G-89/009 (Aug. 1989).

(e)

Guidance on EPA Oversight of Remedial Designs and Remedial Actions
Performed by Potentially Responsible Parties, OSWER 9355.5-01, EPA/540/G90/001 (Apr.1990).

(f)

Guidance on Expediting Remedial Design and Remedial Actions, OSWER
9355.5-02, EPA/540/G-90/006 (Aug. 1990).
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(g)

Guide to Management of Investigation-Derived Wastes, OSWER 9345.3-03FS
(Jan. 1992).

(h)

Permits and Permit Equivalency Processes for CERCLA On-Site Response
Actions, OSWER 9355.7-03 (Feb. 1992).

(i)

Guidance for Conducting Treatability Studies under CERCLA, OSWER 9380.310, EPA/540/R-92/071A (Nov. 1992).

(j)

National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule,
40 C.F.R. Part 300 (Oct. 1994).

(k)

Guidance for Scoping the Remedial Design, OSWER 9355.0-43, EPA/540/R95/025 (Mar. 1995).

(l)

Remedial Design/Remedial Action Handbook, OSWER 9355.0-04B, EPA/540/R95/059 (June 1995).

(m)

EPA Guidance for Data Quality Assessment, Practical Methods for Data
Analysis, QA/G-9, EPA/600/R-96/084 (July 2000).

(n)

Operation and Maintenance in the Superfund Program, OSWER 9200.1-37FS,
EPA/540/F-01/004 (May 2001).

(o)

Comprehensive Five-year Review Guidance, OSWER 9355.7-03B-P, 540-R-01007 (June 2001).

(p)

Guidance for Quality Assurance Project Plans, QA/G-5, EPA/240/R-02/009
(Dec. 2002).

(q)

Institutional Controls: Third Party Beneficiary Rights in Proprietary Controls
(Apr. 2004).

(r)

Quality management systems for environmental information and technology
programs -- Requirements with guidance for use, ASQ/ANSI E4:2014 (American
Society for Quality, February 2014).

(s)

Uniform Federal Policy for Quality Assurance Project Plans, Parts 1-3,
EPA/505/B-04/900A though 900C (Mar. 2005).

(t)

Superfund Community Involvement Handbook, EPA/540/K-05/003 (Apr. 2005).

(u)

EPA Guidance on Systematic Planning Using the Data Quality Objectives
Process, QA/G-4, EPA/240/B-06/001 (Feb. 2006).

25

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(v)

EPA Requirements for Quality Assurance Project Plans, QA/R-5,
EPA/240/B-01/003 (Mar. 2001, reissued May 2006).

(w)

EPA Requirements for Quality Management Plans, QA/R-2, EPA/240/B-01/002
(Mar. 2001, reissued May 2006).

(x)

USEPA Contract Laboratory Program Statement of Work for Inorganic Analysis,
ILM05.4 (Dec. 2006).

(y)

USEPA Contract Laboratory Program Statement of Work for Organic Analysis,
SOM01.2 (amended Apr. 2007).

(z)

EPA National Geospatial Data Policy, CIO Policy Transmittal 05-002
(Aug. 2008), available at http://www.epa.gov/geospatial/policies.html and
http://www.epa.gov/geospatial/docs/National_Geospatial_Data_Policy.pdf.

(aa)

Summary of Key Existing EPA CERCLA Policies for Groundwater Restoration,
OSWER 9283.1-33 (June 2009).

(bb)

Principles for Greener Cleanups (Aug. 2009), available at
http://www.epa.gov/oswer/greenercleanups/.

(cc)

USEPA Contract Laboratory Program Statement of Work for Inorganic
Superfund Methods (Multi-Media, Multi-Concentration), ISM01.2 (Jan. 2010).

(dd)

Close Out Procedures for National Priorities List Sites, OSWER 9320.2-22
(May 2011).

(ee)

Groundwater Road Map: Recommended Process for Restoring Contaminated
Groundwater at Superfund Sites, OSWER 9283.1-34 (July 2011).

(ff)

Recommended Evaluation of Institutional Controls: Supplement to the
“Comprehensive Five-Year Review Guidance,” OSWER 9355.7-18 (Sep. 2011).

(gg)

Construction Specifications Institute’s MasterFormat 2012, available from the
Construction Specifications Institute, www.csinet.org/masterformat.

(hh)

Updated Superfund Response and Settlement Approach for Sites Using the
Superfund Alternative Approach, OSWER 9200.2-125 (Sep. 2012)

(ii)

Institutional Controls: A Guide to Planning, Implementing, Maintaining, and
Enforcing Institutional Controls at Contaminated Sites, OSWER 9355.0-89,
EPA/540/R-09/001 (Dec. 2012).

26

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(jj)

Institutional Controls: A Guide to Preparing Institutional Controls Implementation
and Assurance Plans at Contaminated Sites, OSWER 9200.0-77, EPA/540/R09/02 (Dec. 2012).

(kk)

EPA’s Emergency Responder Health and Safety Manual, OSWER 9285.3-12
(July 2005 and updates), http://www.epaosc.org/_HealthSafetyManual/manualindex.htm.

(ll)

Broader Application of Remedial Design and Remedial Action Pilot Project
Lessons Learned, OSWER 9200.2-129 (Feb. 2013).

(mm) Guidance for Evaluating Completion of Groundwater Restoration Remedial
Actions, OSWER 9355.0-129 (Nov. 2013).
(nn)
9.2

Groundwater Remedy Completion Strategy: Moving Forward with the End in
Mind, OSWER 9200.2-144 (May 2014).

A more complete list may be found on the following EPA Web pages:
Laws, Policy, and Guidance http://www.epa.gov/superfund/policy/index.htm
Test Methods Collections

9.3

http://www.epa.gov/fem/methcollectns.htm

For any regulation or guidance referenced in the CD or SOW, the reference will be read
to include any subsequent modification, amendment, or replacement of such regulation or
guidance. Such modifications, amendments, or replacements apply to the Work only after
Settling Defendant receive notification from EPA of the modification, amendment, or
replacement.

27

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APPENDIX C

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INDEX TO APPENDIX C
EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

Excerpt from Cooperation and Access Agreement Northern States
Power Company and The City of Ashland October 30, 2012
• TAB A - Exhibit A Site Location Map Phase I Pre-Design
Study Work Plan Ashland/NSP Lakefront Site
• TAB B - Exhibit B Map of Property Owned by City of
Ashland
• TAB C - Excerpts of Consent Decree Between the United
States, Wisconsin, Northern States Power Company, and the
Bad River and Red Cliff Bands of The Lake Superior Tribe
of Chippewa Indians
• TAB D - Excerpts of Phase I Remedial Design Work Plan
Ashland/NSP Lakefront Site
Excerpt from First Amendment of Cooperation and Access
Agreement, Northern States Power Company and The City of
Ashland, April 7, 2014
• Exhibit E - Excerpts from Wet Dredge Pilot Study Work
Plan Ashland Lakefront Superfund Site
Excerpt from Second Amendment of Cooperation and Access
Agreement, Northern States Power Company and The City of
Ashland, May 21, 2015
• EXHIBIT F - Excerpt from Pre-Final Design for Ashland
Breakwater, April 2015
Excerpt from Cooperation and Settlement Agreement Northern
States Power Company and The City of Ashland, April 27, 2016

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EXHIBIT 6
EXHIBIT 1
Excerpt from Cooperation and Access Agreement
Northern States Power Company and The City of Ashland
October 30, 2012

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REDACTED

REDACTED

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REDACTED

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REDACTED

REDACTED

REDACTED

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REDACTED

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CITY OF ASHLAND

B¢~~~
Name: Wu... e-t"'/;..c ~~ W hA<-.£..q
Title:
Date:

2"2-t"" T 6/l-/6-

l3 6 --I :v----

ACKNOWLEDGEMENT
STATE OF WISCONSIN
COUNTY

OF(Jilh~ IJ) t

.::3tJ da~

~

of
, 2012, the
Personally came before .me t!lls
above-named (Name/Title) ?IJt~ ~ to me
known to be the person and ·official who executed the foregoing instrument and acknowledged
the same.

fP1--"

[Signature Page to Cooperation and Access Agreement]

,

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ACKNOWLEDGEMENT
STATE OF WISCONSIN
COUNTY OF

Glu. tlaLv e._,

[Signature Page to Cooperation and Access Agreement]

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TABA

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TABB

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TABC

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN

------------------------------------X
UNITED STATES OF AMERICA and
TI-lE STATE OF WISCONSIN,
Plaintiffs,
Civil Action No. _ _

v.
NORTHERN STATES POWER COMPANY,
Defendant.

------------------------------------X

CONSENT DECREE BETWEEN THE UNITED STATES, WISCONSIN, NORTHERN
STATES POWER COMPANY, AND THE BAD RIVER AND RED CLIFF BANDS OF
THE LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS

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TABD

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Phase 1 Remedial Design Work Plan
Ashland/NSP
Lakefront Site

Prepared for

NSPW
Eau Claire, WI
May 2012
Project 58638

Prepared by

Burns & McDonnell Engineering Company, Inc.
Chicago, Illinois

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EXHIBIT
EXHIBIT32
Excerpt from First Amendment of Cooperation and Access Agreement
Northern States Power Company and The City of Ashland
April 7, 2014

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EXHIBIT E

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WET DREDGE PILOT STUDY WORK PLAN
ASHLAND LAKEFRONT SUPERFUND SITE

Prepared for
U.S. Environmental Protection Agency Region 5
77 W. Jackson Blvd., C-14J
Chicago, Illinois 60604

Prepared by
Anchor QEA, LLC
20646 Abbey Woods Court, Suite 205
Frankfort, Illinois 60423
On behalf of
Northern States Power Wisconsin

February 2014

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EXHIBIT 2
3
Excerpt from Second Amendment of Cooperation and Access Agreement
Northern States Power Company and The City of Ashland
May 21, 2015

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SECOND AMENDMENT OF
COOPERATION AND ACCESS AGREEMENT
RECITALS
A.

The City of Ashland, Wisconsin (“City”) and Northern States Power Company
(“NSPW”) are parties to the Cooperation and Access Agreement (“Access Agreement”)
effective as of the 30th of October, 2012, as amended pursuant to that certain First
Amendment of Cooperation and Access Agreement (“First Amendment”), which became
effective on May 9, 2014.

B.

Pursuant to the Access Agreement, as amended and subject to its terms, the City granted
NSPW access to certain property for the purpose of performing certain work pursuant to
(i) a Consent Decree Between the United States, Wisconsin, Northern States Power
Company, and the Bad River and Red Cliff Bands of the Lake Superior Tribe of
Chippewa Indians filed in the United States District Court for the Western District of
Wisconsin on 8 August 2012 as document number 2-1 in case number 3:12-cv-00565
(“Consent Decree”) and (ii) an Administrative Order on Consent (“AOC”) to perform a
wet dredge pilot study in Chequamegon Bay (“Wet Dredge Pilot Study”).

C.

NSPW anticipates entering into an Administrative Order on Consent (“Breakwater
AOC”) with the United States to perform additional work to construct a breakwater on
the lakebed of Lake Superior (the “Breakwater”), in order to advance the Wet Dredge
Pilot Study and/or the full-scale remedy for the Site.

D.

The City is willing to accommodate the additional work for the Breakwater.
AGREEMENT
THEREFORE, the City and NSPW agree as follows:

1.

The Access Agreement shall be amended to provide that the term “Work” includes the
work related to the construction of the Breakwater described in the “Pre-Final Design for
Ashland Breakwater” (attached hereto as Exhibit F), as may be amended in the approved
final design, in addition to the work performed pursuant to the Consent Decree and AOC.

2.

The amendment described in Section 1 above shall be effective upon the written approval
of the United States Environmental Protection Agency (“EPA”) to perform the Work
described in Exhibit F, as amended in the approved final design.

3.

In the event the EPA does not grant approval to construct the Breakwater, this Agreement
shall be void and of no effect.

[Signature pages follow]

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EXHIBIT F TO COOPERATION AND ACCESS AGREEMENT

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Report

Pre-Final Design for Ashland
Breakwater
Ashland/NSP Lakefront Site
Project I.D.: 15X001

NSPW
Eau Claire, Wisconsin
April 2015

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EXHIBIT 4
1
Excerpt from Cooperation and Settlement Agreement
Northern States Power Company and The City of Ashland
April 27, 2016

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REDACTED

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APPENDIX D

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CERCLA Financial Assurance Financial Test:
Sample CFO Letter (for Test Alternative 2)
[To be printed on PRP/Settling Defendant’s letterhead]
[Insert date]
U.S. Environmental Protection Agency Region [insert number]
c/o [insert appropriate Regional official such as “Superfund Division Director”]
[Insert address]
[Insert contact information]
Dear [insert EPA recipient identified above]:
I am the chief financial officer of [insert name of PRP/Settling Defendant] (the
“Company”). This letter is in support of the Company’s use of a financial test to
demonstrate financial assurance for the obligations of the Company under that certain
[insert as appropriate: “Consent Decree,” “Administrative Settlement Agreement and
Order on Consent,” or “Settlement Agreement”] dated [insert date], [insert as
appropriate: civil action number for consent decrees or EPA docket number for
administrative agreements], between the Company and the U.S. Environmental
Protection Agency (EPA), for the [insert site name [operable unit]] Site (hereinafter,
the “Settlement Agreement”), entered pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 96019675. This letter confirms the Company’s satisfaction of certain financial criteria, as set
forth more fully below, that makes the Company eligible to utilize the financial test as
financial assurance under the Settlement Agreement.
[Fill out the following paragraphs regarding CERCLA settlements and unilateral orders,
RCRA facilities, TSCA facilities, SDWA facilities, and associated financial assurance
requirements. If the Company has no CERCLA settlement, order, or RCRA/TSCA/SDWA
facility obligations that belong in a particular paragraph, write “None” in the space
indicated. For each settlement, order, and site/facility, include identifying information
(civil action/docket number, site/facility/spill identification number, etc.) and the
financial assurance dollar amount associated with such settlement, order, and/or
site/facility.]
1.
The dollar amount of financial assurance required by Paragraph [insert
applicable paragraph number] of the Settlement Agreement and covered by the
Company’s use of the financial test $[insert dollar amount].
2.
The Company is a signatory or respondent to the following CERCLA settlements
(other than the Settlement Agreement) or unilateral administrative orders, respectively,
under which the Company is providing financial assurance to EPA through the use of a
financial test. The total dollar amount of such financial assurance covered by a financial
test is equal, in the aggregate, to $[insert dollar amount], and is shown for each such
settlement or order as follows: [insert information as necessary].

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3.
The Company is the owner and/or operator of the following facilities for which
the Company has demonstrated financial assurance to EPA, states, and/or other regulators
in the United States through the use of a test equivalent or substantially equivalent to the
test certified herein, including but not limited to hazardous waste Treatment, Storage, and
Disposal (TSD) facilities under 40 CFR parts 264 and 265, Municipal Solid Waste
Landfill (MSWLF) facilities under 40 CFR part 258, Underground Injection Control
(UIC) facilities under 40 CFR part 144, Underground Storage Tank (UST) facilities
under 40 CFR part 280, and Polychlorinated Biphenyl (PCB) storage facilities under
40 CFR part 761. The total dollar amount of such financial assurance covered by a
financial test is equal, in the aggregate, to $[insert dollar amount], and is shown for
each such facility as follows: [insert information as necessary].
4.
The Company guarantees to EPA, states, and/or other regulators in the United
States the CERCLA settlement or unilateral administrative order obligations and/or the
MSWLF, TSD, UIC, UST, PCB, and/or other facility obligations of the following
guaranteed parties: [insert information as necessary]. The total dollar amount of such
CERCLA settlement or order obligations and regulated facility obligations so guaranteed
is equal, in the aggregate, to $[insert dollar amount], and is shown for each such
settlement, order, and/or facility as follows: [insert information as necessary].
5.
The Company [insert “is required” or “is not required”] to file a Form 10K with
the Securities and Exchange Commission for the Company’s latest fiscal year.
6.
The Company’s fiscal year ends on [insert month and day]. I hereby certify that
the figures for the following items marked with an asterisk are derived from the
Company’s independently audited, year-end financial statements for its latest completed
fiscal year, ended [insert date], and further certify as follows:
A. The aggregate total of the dollar amounts shown in Paragraphs 1 through 4 above
equals $[insert dollar amount].
B. The current rating of the Company’s senior unsecured debt is [insert as appropriate
either: [AAA, AA, A, or BBB] as issued by Standard and Poor’s or [Aaa, Aa, A or
Baa] as issued by Moody’s Investor Services].
*C. Company’s tangible net worth equals: $[insert dollar amount].
*D. Company’s total assets in the United States equal (required only if less than 90% of
Company’s assets are located in the United States.): $[insert dollar amount].
E. Is line C at least 6 times line A? (Yes/No): [insert yes or no].
F. Is line C at least $10 million? (Yes/No): [insert yes or no].
G. Are at least 90% of Company’s assets located in the United States? (Yes/No):
[insert yes or no]. If “No,” complete line H.

Case: 3:17-cv-00016-bbc Document #: 2-1 Filed: 01/10/17 Page 125 of 128

H. Is line D at least 6 times line A? (Yes/No): [insert yes or no].
I hereby certify that, to the best of my knowledge after thorough investigation, the
information contained in this letter is true, accurate, and complete. I am aware that there
are significant penalties for submitting false information, including the possibility of fine
and imprisonment for knowing violations.
By [signature]:
Printed name:
Title:
Address:
Contact information:
Date:

______________________________
______________________________
______________________________
______________________________
______________________________
______________________________

Case: 3:17-cv-00016-bbc Document #: 2-1 Filed: 01/10/17 Page 126 of 128

CERCLA Financial Assurance Financial Test:
Sample CPA Report (for Test Alternative 2)
[To be printed on CPA’s letterhead]
Independent Accountants’ Report
on Applying Agreed-Upon Procedures

To the Board of Directors and Management of [insert name of PRP/Settling
Defendant]:
We have performed the procedures outlined below, which were agreed to by [insert
name of PRP/Settling Defendant] (the “Company”), to assist the Company in
confirming selected financial data contained in the attached letter from [insert name of
CFO], the Company’s Chief Financial Officer, dated [insert date], to [insert EPA
recipient (Region, name, and title)] (the “CFO Letter”). We have been advised by the
Company that the CFO Letter has been or will be submitted to the United States
Environmental Protection Agency (EPA) in support of the Company’s use of a financial
test to demonstrate financial assurance for the Company’s obligations under that certain
[insert as appropriate: “Consent Decree,” “Administrative Settlement Agreement and
Order on Consent,” or “Settlement Agreement”] dated [insert date], [insert as
appropriate: civil action number for consent decrees or EPA docket number for
administrative agreements], between the Company and EPA, for the [insert site name
[operable unit]] Site (hereinafter, the “Settlement Agreement”), entered pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), 42 U.S.C. §§ 9601-9675. The procedures outlined below were performed
solely to assist the Company in complying with the financial assurance requirements
contained in the Settlement Agreement.
This agreed-upon procedures engagement was conducted in accordance with attestation
standards established by the American Institute of Certified Public Accountants. The
sufficiency of these procedures is solely the responsibility of those parties specified in
this report. Consequently, we make no representation regarding the sufficiency of the
procedures described below either for the purpose for which this report has been
requested or for any other purpose.
The procedures we performed and our associated findings are as follows:
1.
We confirm that we have audited the consolidated financial statements of the
Company as of and for the fiscal year ended [insert date] in accordance with United
States generally accepted accounting principles (such audited, consolidated financial
statements, the “Audited Financials”). Our report dated [insert date], with respect
thereto, is included in the Company’s [insert year] Annual Report on Form 10-K.
2.
Using data set forth in the Audited Financials, we calculated the amount of the
Company’s tangible net worth as of [insert date] as $[insert dollar amount], by

Case: 3:17-cv-00016-bbc Document #: 2-1 Filed: 01/10/17 Page 127 of 128

[subtracting the amount of net intangible assets of $[insert dollar amount] from the
amount of total stockholders’ equity of $[insert dollar amount]]. We compared the
amount of the Company’s tangible net worth as so calculated with the amount set forth in
Line 6(C) of the CFO Letter (“Tangible Net Worth”), and found such amounts to be in
agreement.
3.
[Insert either: “We compared the amount of the Company’s total assets located
in the United States as of [insert date] of $[insert dollar amount] (as such amount was
derived by the Company from its underlying accounting records that support the Audited
Financials and notified to us in writing) with the amount set forth in Line 6(D) of the
CFO Letter, and found such amounts to be in agreement[.]” or “We calculated the
percentage of Company assets located in the United States as of [December 31, 20__] by
dividing the amount of the Company’s total assets located in the United States of $[insert
dollar amount] (as such amount was derived by the Company from its underlying
accounting records that support the Audited Financials and notified to us in writing) by
the amount of the Company’s total assets as defined and set forth in the Audited
Financials, and found such percentage to be greater than 90%.”]
4.
Our calculation of the amount of the Company’s tangible net worth (as set forth in
Line 2 above) is [insert either: “greater than or equal to” or “less than”] $10 million.
5.
The dollar amount identified in Line 6(A) of the CFO Letter is hereinafter
referred to as the “Financial Assurance Amount.” Our calculation of the amount of the
Company’s tangible net worth (as set forth in Line 2 above) is [insert either: “greater
than or equal to” or “less than”] an amount calculated as six times the Financial
Assurance Amount.
6.
[Include and complete Line 6 only if less than 90% of Company’s assets are
located in the United States] Our calculation of the amount of the Company’s total
assets located in the United States (as set forth in Line 3 above) is [insert either: “greater
than or equal to” or “less than”] an amount calculated as six times the Financial
Assurance Amount.
[Remainder of page left blank intentionally.]

Case: 3:17-cv-00016-bbc Document #: 2-1 Filed: 01/10/17 Page 128 of 128

The foregoing agreed-upon procedures do not constitute an audit of the Company’s
financial statements or any part thereof, the objective of which is the expression of
opinion on the financial statements or a part thereof. Accordingly, we do not express such
an opinion. Had we performed additional procedures, other matters might have come to
our attention that would have been reported to you.
This report is intended solely for the information and use of the Board of Directors and
Management of the Company and is not intended to be and should not be used by anyone
other than these specified parties; provided, however, that we acknowledge and agree that
the Company may provide this report to EPA in support of the Company’s financial
assurance demonstration under the Settlement Agreement.
By [signature]:
Printed name:
Title:
Address:
Contact information:
Date:

______________________________
______________________________
______________________________
______________________________
______________________________
______________________________