United States of America et al v. Wisconsin Public Service Corporation

Filing 5

CONSENT DECREE Signed by District Judge William M. Conley on 10/30/14. (Attachments: # 1 Appendix A (part 1), # 2 Appendix A (part 2), # 3 Appendix B, # 4 Appendix C, # 5 Appendix D) (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

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UNITED STATES OF AMERICA and
STATE OF WISCONSIN,
Plaintiffs,

v.
WISCONSIN PUBLIC SERVICE
CORPORA nON,
Defendant.

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Civil Action No. 14-cv-546

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REMEDIAL ACTION CONSENT DECREE FOR THE
WISCONSIN PUBLIC SERVICE CORPORATION
STEVENS POINT MANUFACTURED GAS PLANT
SUPERFUND ALTERNATIVE SITE

TABLE OF CONTENTS
I.
II.
III.
IV.

V.
VI.
VII.
VIII.
IX.
X.
XL

XII.
XIII.
XIV.
XV.

XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XXIII.
XXIV.
XXV.
XXVI.
XXVII.
XXVIII.
XXIX.
XXx.

XXXI.
XXXII.
XXXIII.

BACKGROUND
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
PARTIES BOUND
DEFINITIONS
, . . . . . . . . . . . . . . . . . . . . . . . . ..
GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
PERFORMANCE OF THE WORK BY SETTLING DEFENDANT. . . . . . . . . . .
REMEDY REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
QUALITY ASSURANCE, SAMPLING, AND DATA ANAL YSIS . . . . . . . . . . ..
ACCESS AND INSTITUTIONAL CONTROLS. . . . . . . . . . . . . . . . . . . . . . . . . ..
REPORTING REQUIREMENTS
EPA APPROVAL OF PLANS, REPORTS, AND OTHERDELIVERABLES
PROJECT COORDINATORS
PERFORMANCE GUARANTEE
CERTIFICATION OF COMPLETION
EMERGENCY RESPONSE. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
PAYMENTS FOR RESPONSE COSTS
INDEMNIFICAtION AND INSURANCE
'. . . . . . . . . ..
FORCE MAJEURE
DISPUTE RESOLUTION
STIPULATED PENALTIES
COVENANTS BY PLAINTIFFS
,.;
,
COVENANTS BY SETTLING DEFENDANT
EFFECT OF SETTLEMENT; CONTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . . ..
ACCESS TO INFORMATION
.RETENTION OF RECORDS
NOTICES AND SUBMISSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
RETENTION OF JURISDICTION
APPENDICES
COMMUNITY INVOLVEMENT. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . ..
MODIFICATION
LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
SIGNATORIES/SERVICE
FINAL JUDGMENT
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1. 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") 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. SS 9606,
9607.
B.
The Plaintiffs in their complaint seek, inter alia: (1) reimbursement of costs
incurred by EPA, the Department of Justice ("DOJ"), and the State for response actions at the
WPSC Stevens Point MOP Superfund Alternative Site in Stevens Point, Wisconsin, together
with accrued interest; and (2) performance of response actions by the Defendant at the Site
consistent with the National Contingency Plan ("NCP"), 40 C.F.R. Part 300.
C.

In accordance with the NCP and Section 121(f)(1)(F) ofCERCLA, 42 U.S.C.
notified the State of Wisconsin of negotiations with potentially responsible
parties ("PRPs") regarding the implementation of the remedial design and remedial action for the
Site. The State has participated in such negotiations and is a party to this Consent Decree.

S 9621(f)(l )(F), EPA

D.
In accordance with Section 1220)(1) ofCERCLA, 42 U.S.C. 996220)(1), EPA
notified the National Oceanic and Atmospheric Administration ("NOAA") on February 9,
2006,ofnegotiat.ions with PRPs regarding the release of hazardous substances that may have
resulted in injury to the natural resources under federal trusteeship and encouraged the trustee to
paJ.1icipatein the negotiation of this Consent Decree.
E.
Defendant Wisconsin Public Service Corporation ("WPSC" or "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 a hazardous substaJ.1ceat or from the Site constitutes an imminent and substantial
endangennent to the public health or welfare or the environment.
F.
In response to a release or a substantial threat of a release of a hazardous
substance at or from the Site, Settling Defendant commenced a Remedial Investigation and
Feasibility Study ("RIfFS") for the Site pursuant to 40 C.F.R. S 300.430.
G.
Settling Defendant completed a Remedial Investigation ("RI") Report on April 17,
2012. Settling Defendant completed a Feasibility Study ("FS") Report on April 17, 2012.
H.
Pursuant to Section 117 of CERCLA, 42 U.S.C. S 9617, EPA published notice of
the completion of the FS and of the proposed plan for remedial action on July 2, 2012, in a major
local newspaper of general circulation. EPA provided an opportunity for written and oral
comments from the public on the proposed plan for remedial 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 25,2012, on which the
State has given its concurrence. The ROD includes EPA's explanat.ion for any significant
differences between the final plan and the proposed plan as well as a responsiveness summary to
1

the public comments. Notice of the final plan was published in accordance with Section 117(b)
ofCERCLA, 42 U.S.C. 99617(b).
1.
On May 6, 2013, Settling Defendant signcd an Admifiistrative Or<ieron Consent
for Remedial Design ("AOC"), Docket No. V-W-13-c-012, in which it agreed to perform the
design necessary to implement the remedy. EPA signed the AOC on May] 4,2013 and the AOC
became effective on May 24,2013.
K.
Based on the information presently available to EPA and the State, EPA and the
State believe that the Work will be properly and promptly conducted by Settling Defendant if
conducted in accordance with the requirements of this Consent Decree and its appendices.
L.
Solely for the purposes of Section 1130) ofCERCLA, 42 U.S.C. S 96130), 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
tllCadministrative record.
M.
Thc P31ties recognize, and the Court by entering this Consent Decree finds, that
this Consent Decree has been negotiated by the Parties in good faith 31ldimplementation 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, 311d
Decreed:
II. JURISDICTION
1.
This Court has jurisdiction over the subject matter of this action pursuant to
28 U,S,C. SS 1331 311d1345, and 42 U.S.C. SS 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 31lddefenses that it may have
to jurisdiction of the Court or to venue in this District. Settling Defendant. shall not challenge the
terms ofthis Consent Decree or this Court's jurisdiction to enter 311d
enforce this Consent
Decree.
III. PARTIES BOUND
2.
This Consent Decree applies to and is binding upon the United States alld the
State and upon Settling Defendant and its successors and assigns. Any change in ownership or
corporate status of Settling Defendant, including, but not limited to, any tr311sferof assets or real
or personal property, shall in no way alter 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 required by this Consent Decree and to each person representing
Settling Defendant with respect to the Site or the Work, and shall condition all contracts entered
into hereunder upon performance of the Work in conformity with the terms of this Consent
2

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 required by this Consent Decree.
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) ofCERCLA, 42 U.S.C. ~ 9607(b)(3).
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:
"AOC" shall mean the Administrative Order on Consent for Remedial Design between
EPA and WPSC captioned In the Matter ofWPSC Stevens Point MOP Site, Docket No. V-W13-C-012. The AOC is attached hereto as Appendix A.
..,

"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. SS 9601-9675. .
.
"Consent Decree" shall mean this Consent Decree and all appendices attached hereto
(listed in Section XXVIII). 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 unless expressly stated to be a working day.
The term "working day" shall mean a day other than a Saturday, Sunday, or federal or state
holiday. 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 this Consent Decree is entered by the
Court as recorded on the Court docket or, if the Court instead issues an order approving the
Consent Decree, the date such order is recorded on the Court docket.
"EPA" shall mean the United States Environmental Protection Agency and 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. S 9507.

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"Future Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States incurs in reviewing or developing plans, repOlis, and other
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, payroll costs, contractor costs, travel costs, laboratory costs, the costs incuned
pursuant to Paragraph 9 (Notice to Successors-in-Title and Transfers of Real Property), Sections
VII (Remedy Review), IX (Access and Institutional Controls) (including, but not limited to, the
cost of attorney time and any monies paid to secure access and/or to secure, implement, monitor,
maintain, or enforce Institutional Controls including, but not limited to, the amount of just
compensation), and XV (Emergency Response), Paragraph 48 (Funding for Work Takeover), and
Section XXIX (Community Involvement). 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. S 9607(a) during the
period from February 1, 2014 to the Effective Date.
"Institutional Controls" or "ICs" shall mean restrictions, limitations, or other conditions
or action taken under state or local laws, regulations, ordinances, zoning restrictions, or other
governmental controls or notices, including, but not limited to, WIS. STAT.S 292.12, that:
(a) limit land, water, and/or resource use to minimize the potential for human exposure to Waste
Material at or in connection with the Site; (b) limit land, water, and/or resource use to implement,
ensure non-interference with, or ensure the protectiveness of the Remedial Action; (c) provide
information intended to modify or guide human behavior at or in connection with the Site; 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"),
"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 February 1,2014
and the Effective-Date or (b) incuned prior to the Effective Date but paid after that date.
"Interest" shall mean interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund established by 26 U,S.C. S 9507, compounded annually on
October 1 of each year, in accordance with 42 U.S.C. S 9607(a). The applicable rate of interest
shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change
on October 1 of each year.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
-Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42
U.S.C. S 9605, codified at 40 C.F.R. Part 300, and any amendments thereto,
"Operation and Maintenance" or "O&M" shall mean all activities required to maintain
the effectiveness of the Remedial Action as required under the Operation and Maintenance Plan
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approved or developed by EPA pursuant to Section VI (Performance of the Work by Settling
Defendant) and the SOW, and maintenance, monitoring, and enforcement ofInstitutional
Controls as provided in the ICIAP.
"Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral
or an upper or lower case letter.
"Parties" shall mean the United States, the State of 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 January 31,
2014, plus Interest on all such costs that has accrued pursuant to 42 U.S.C. S 9607(a) through
such date.
.
"Performance Standards" shall mean the cleanup standards and other measures of
achievement ofthe goals of the Remedial Action, set forth in the ROD and the SOW and any
modified standards established pursuant to this Consent Decree.
"Plaintiffs" shall mean the United States and the State of Wisconsin.
"RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C.
as the Resource Conservation and Recovery Act).

SS 6901-6992

(also known

"Record of Decision" or "ROD" shall mean the EPA Record of Decision relating to the
Site signed on September 25,2012, by the Director, Superfund Division, EPA Region 5 and all
attachments thereto. The ROD is attached as Appendix B to this Consent Decree.
"Remedial Action" shall mean all activities Settling Defendant is required to perform
under the Consent Decree to implement the ROD, in accordance with the SOW, the final
approved remedial design submission, the approved Remedial Action Work Plan, and other plans
approved by EPA, including implementation of Institutional Controls, until the Performance
Standards are met, and excluding performance of the Remedial Design, O&M, and the activities
required under Section XXV (Retention of Records).
"Remedial Action Work Plan" shall mean the document developed pursuant to
Paragraph 12 (Remedial Action) and approved by EPA, after consultation with WDNR, and any
modifications thereto. WDNR may join EPA in approving the Remedial Action Work Plan.
"Remedial Design" shall mean those activities to be undertaken by Settling Defendant to
develop the final plans and specifications for the Remedial Action pursuant to the May 24, 2013
AGC and the Remedial Design Work Plan.
"Remedial Design Work Plan" shall mean the document developed pursuant to the May
24,2013 AOC and approved by EPA, and any modifications thereto.
"Section" shall mean a portion of this Consent Decree identified by a Roman numeral.
5

"Settling Defendant" or "WPSC" shall mean Wisconsin Public Service Corporation.
"Site" shall mean the WPSC Stevens Point MGP Superfund Alternative Site,
encompassing approximately three acres, located at Stevens Point, Portage County, Wisconsin,
and depicted generally on the map attached as Appendix C.
"State" shall mean the State of Wisconsin.
"State Future Response Costs" shall mean all costs, including, but not limited to, direct
and indirect costs, that the State incurs in reviewing or developing plans, reports, and other
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, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred
pursuant to Paragraph 9 (Notice to Successors-in- Title and Transfers of Real Property), Sections
VII (Remedy Review), IX (Access and Institutional Controls) (including, but not limited to, the
cost of attorney time and any monies paid to secure access and/or to secure, implement, monitor,
maintain, or enforce Institutional Controls including, but not limited to, the -amount of just
compensation), and XV (Emergency Response), Paragraph 48 (Funding for Work Takeover), and
Section XXIX (Community Involvement). State Future Response Costs shall also include all
State Interim Response Costs.
"State Interim Response Costs" shall mean all costs, including, but not limited to, direct
and indirect costs, (a) paid by the State in connection with the Site between February 1,2014 and
the Effective Date, or (b) incurred prior to the Effective Date but paid after that date.
"Statement of Work" or "SOW" shall mean the statement of work for implementation of
the Remedial Action and O&M at the Site, as set forth in Appendix D to this Consent Decree and
any modifications made in accordance with this Consent Decree.
"Supervising Contractor" shall mean the principal contractor retained by Settling
Defendant to supervise and direct the inlplcmentation of the Work under this Consent Decree.
"Transfer" shall mean to sell, ac;sign,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, and any federal natural resource trustee.
"Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of
CERCLA, 42 U.S.C. S 9601(14); (2) any pollutant or contaminant under Section 101(33) of
CERCLA, 42 U.S.C. g 9601(33); (3) any "solid waste" under Section 1004(27) ofRCRA, 42
U.S.C. S 6903(27); and (4) any "hazardous substance" under Wis. Stat. S 292.01.
"WDNR" shall mean the Wisconsin Department of Natural Resources and any successor
departments or agencies of the State.

6

"WDNR Database" shall mean the publically accessible database available on the internet
as required by WIS. STAT. SS 292.12,292.31, and 292.57. The WDNR Database is accessible at
http://dnr.wi.gov/org/aw/rrlbrrts/index.htm
"Work" shall mean all activities and obligations Settling Defendant is required to perform
under this Consent Decree, except the activities required under Section XXV (Retention of
Records).
'
"\VPSC Stevens Point 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)
ofCERCLA, 42 U.S.C. S 9622(b)(3).
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 Site by Settling Defendant, to pay response costs of the
Plaintiffs, and to resolve the claims of Plaintiffs against Settling Defendant as provided in this
Consent Decree.
6.

Commitments by Settling Defendant.

a.
Settling Defendant shall finance and perform the Work in accordance with
the AOC, this Consent Decree, the ROD, the SOW, and all work plans and other plans,
standards, specifications, and schedules set forth in this Consent Decree, the AOC, or developed
by Settling Defendant and approved by EPA pursuant to this Consent Decree or the AOe. Upon
entry :of this Consent Decree, the work plan and all other plans, standards, specifications, and
schedules set forth in or developed and approved by EPA pursuant to the AOC shall be
incorporated into and become enforceable under this Consent Decree. Settling Defendant shall
pay the United States and the State for Past Response Costs and Future Response Costs as
provided in this Consent Decree.
b.
Settling Defendant shall comply with the AOC and shall perform all work
required under the AOC in accordance with the terms of the AOC, until such time as the AOC is
superseded by this Decree pursuant to this Paragraph. EPA shall make a determination as to
Settling Defendant's compliance with the AOC concurrently with the lodging of the Consent
Decree in this matter by the United States and shall notify Settling Defendant of that
detennination. If EPA determines that Settling Defendant is in full compliance with the terms
and obligations of the AOC as of the date of entry of this Consent Decree, this Consent Decree
shall supersede the AOC upon entry of the Consent Decree with respect to all subsequent
obligations. If EPA determines that Settling Defendant is not in full compliance with the terms
and obligations of the AOC as of the date of entry of this Consent Decree, EPA shall notify
Settling Defendant of what is needed to come into compliance, and both the AOC and this
Consent Decree shall be in full force and effect until EP A subsequently determines that Settling
Defendant has achieved full current compliance with the terms and conditions of the AOC, at
which time this Consent Decree shall supersede the AOC. If this Consent Decree is not entered
by the Court, the AOC shall not be superseded and this Consent Decree shall have no effect on
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the AOC. Any documents that are required to be submitted under this Consent Decree that have
been submitted by Settling Defendant pursuant to the AOC need not be resubmitted after the date
that this Consent Decree supersedes the AOC, unless EPA determines that such submittal is
inadequate. Nothing in this Consent Decree shall be deemed to bar the United States from
enforcing the AOC for Settling Defendant's failure to comply with the AOC as of the date of
entry of this Consent Decree. With respect to violations of the AOC occurring prior to the date
that the AOC is superseded by this Consent Decree, EPA, at any time (including after the date
that the AOC has been superseded by this Consent Decree), may seek penalties or punitive
damages pursuant to Sections 106(b) and l07(c)(3) ofCERCLA, 42 U.S.C. SS 9606(b) and
9607(c)(3), notwithstanding any correction of such violations.
7.
Compliance With Applicable Law. All activities undertaken by Settling
Defendant pursuant to this Consent Decree shall be performed in accordance with the
requirements of all applicable federal and state laws and regulations. Settling Defendant must
also comply with all applicable or relevant and appropriate requirements of all federal and state
environmentallavvs 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.
8.

Permits.

a.
As provided in Section 121(e) ofCERCLA, 42 U.S.C. S 9621(e), and
Section 300AOO(e) of the NCP, no pennit 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 contanunation 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 XVlIl
(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 Paragraph 8.a and required for the
Work, provided that it has subntitted 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.
9.

Notice to Successors-in-Title and Transfers of Real Property.

a.
For any real property owned or controlled by Settling Defendant located at
the Site, Settling Defendant shall, within 15 days after the Effective Date, subntit to EPA for
review and approval, after consultation with WDNR, a proposed notice to be filed with the
appropriate land records office that provides a description of the real property and provides
notice to all successors-in-title that the real property is part of the Site, that EPA has selected a
remedy for the Site, and that Settling Defendant has entered into a Consent Decree requiring
implementation of the remedy. The notice also shall identify the United States District Court in
which the Consent Decree was filed, the name and civil action number of tIus case, and the date
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the Consent Decree was entered by the Court. The notice shall also state that information
relating to Institutional Controls impacting the property is maintained on the WDNR Database
and include the internet address for the WDNR Database. Settling Defendant shall record the
notice within ten working days after receiving approval of the notice from EPA and WDNR.
Settling Defendant shall provide EPA and WDNR with a certified copy of the recorded notice
within ten working days after recording such notice.
b.
Settling Defendant shall, at least 60 days prior to any Transfer of any real
property located at the Site, give written notice: (l) to the transferee regarding the Consent
Decree and any Institutional Controls regarding the real property; and (2) to EPA and the State
regarding the proposed Transfer, including the name and address of the transferee and the date on
which the transferee was notified of the Consent Decree and any Institutional Controls.'
c.
Settling Defendant may Transfer any real property located at the Site only
if: (1) any Institutional Controls required by Paragraph 26.c have been placed in the WDNR
Database and recorded, if required, with respect to the real property; or (2) Settling Defendant
has obtained an agreement from the transferee, enforceable by Settling Defendant, the United
States, and the State to (i) allow access and restrict land/water use, pursuant to
Paragraphs 27.a(1) and 27.a(2), (ii) record and place in the WDNR Database any Institutional
Controls on the real property, pursuant to Paragraph 27.a(3), and (iii) subordinate its rights to any
such Institutional Controls, pursuant to Paragraph 27.a(3), and EPA has approved the agreement
in writing, after consultation with WDNR. If, after a Transfer of the real property, the transferee
fails to comply with the agreement provided for in this Paragraph 9.c, Settling Defendant shall
take all reasonable steps to obtain the transferee's compliance with such agreement. The United
States and the State may seek the transferee's compliance with the agreement and/or assist
Settling "Defendant in obtaining compliance with the agreement. Settling Defendant shall
reimburse the United States under Section XVI (Payments for Response Costs), for all costs
inc.urred, direct or indirect, by the United States regarding obtaining compliance with such
agreement, including, but not limited to, the cost of attorney time.
d.
In the event of any Transfer of real property located at the Site, unless the
United States otherwise consents in writing, Settling Defendant shall continue to comply with its
obligations under the Consent Decree, including, but not limited to, its obligation to provide
and/or secure access, to implement, maintain, monitor, and report on Institutional Controls, and
to abide by such Institutional Controls.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANT
10.

Selection of Supervising Contractor.

a.
All aspects of the Work to be perforn1ed by Settling Defendant pursuant to
Sections VI (Performance of the Work by Settling Defendant),. VIII (Quality Assurance,
Sampling, and Data Analysis), IX (Access and Instituti~:)llalControls), and XV (Emergency
Response) shall be under the direction and supervision of the Supervising Contractor. Settling
Defendant has selected and, after reasonable opportunity for review and comment by the State,
EPA has issued an authorization to proceed regarding hiring of the following person as
Supervising Contractor: Natural Resource Technology, Inc. Ifat any time hereafter, Settling
9

Defendant proposes to change this Supervising Contractor, Settling Defendant shall give such
notice to EPA and the State and must obtain an authorization to proceed from EPA, after a
reasonable opportunity for review and comment by the State, before the new Supervising
Contractor performs, directs, or supervises any Work under this Consent Decree. Settling
Defendant shall demonstrat~ that the proposed replacement contractor has a quality assurance
system that complies with ANSI!ASQC E4-1994, "Specifications and Guidelines for Quality
Systems for Environmental Data Collection and Environmental Technology Programs"
(American National Standard, January 5, 1995), by submitting a copy of the proposed
contractor's Quality Management Plan ("QMP"). The QMP should be prepared in accordance
with "EPA Requirements for Quality Management Plans (QA/R-2)" (EPA/240/B-0l/002, March
2001, reissued May 2006) or equivalent documentation as determined by EPA.
b.
If EPA disapproves a proposed replacement Supervising Contractor, EPA
will notify Settling Defendant in writing. Settling Defendant shall submit to EPA and the State a
list of contractors, including the qualifications of each contractor, that would be acceptable to
them within 30 days after receipt of EPA's disapproval of the contractor previously proposed.
EPA will provide written notice of the names of any contractor(s) that it disapproves and an
authorization to proceed with respect to any of the other contractors. Settling Defendant may
select any contractor from that list that is not disapproved and shall notify EPA and the State of
the name of the contractor selected 'within 21 days after EPA's authorization to proceed.
C.
If EPA fails to provide written notice of its authorization to proceed or
disapproval as provided in this Paragraph and this failure prevents Settling Defendant from
meeting one or more deadlines in a plan approved by EPA pursuant to this Consent Decree,
Settling Defendant may seek relief under Section XVIII (Force Majeure).

11.

Remedial Design.

a.
The Remedial Design Work Plan has been approved by EPA after
consultation with WDNR. The Remedial Design Work Plan shall be incorporated into and
enforceable under this Consent Decree. Within 30 days of the Effective Date, Settling Defendant
shall submit to EPA and the State a Health and Safety Plan for field design activities that
conforms to the applicable Occupational Safety and Health Administration and EPA
requirements including, but not limited to, 29 C.F.R. S 1910.120.
b.
Settling Defendant shall implement the Remedial Design Work Plan.
Settling Defendant shall submit to EPA and the State all plans, reports, and other deliverables
required under the approved Remedial Design Work Plan in accordance with the approved
schedule for review and approval pursuant to Section XI (EPA Approval of Plans, Reports, and
Other Deliverables) . Unless otherwise directed by EPA, Settling Defendant shall not commence
further Remedial Design activities at the Site prior to approval of the Remedial Design Work
Plan.
c.
The preliminary design submission shall include, at a minimum, the
following: (1) design criteria; (2) results of treatability studies; (3) results of additional field
sampling and pre-design work; (4) project delivery strategy; (5) preliminary plans, drawings, and
sketches; (6) required specifications in outline form; and (7) preliminary construction schedule.
10

d.
The intermediate design submission, if required by EPA or if
independently submitted by Settling Defendant, shall be a continuation and expansion of the
pre.liminary design.
e.
The pre-final/final design submission shall include, at a minimum, the
following: (1) final plans and specifications; (2) Operation and Maintenance Plan; (3) CQAP;
(4) Field Sampling Plan (directed at measuring progress towards meeting Performance
Standards); and (5) Contingency Plan. The CQAP, which shall detail the approach to quality
assurance during construction activities at the Site, shall specify a quality assurance official,
. independent of the Supervising Contractor, to conduct a quality assurance program during the
construction phase of the project.
12.

Remedial Action.

a.
Within 30 days after the approval of the final design submission, Settling
Defendant shall submit to EPA and the State a work plan for the performance of the Remedial
Action at the Site ("Remedial Action Work Plan"). The Remedial Action Work Plan shall
provide for construction and implementation of the remedy set forth in the ROD and
achievement of the Performance Standards, in accordance with this Consent Decree, the ROD,
the SOW, and the design plans and specifications developed in accordance with the Remedial
Dcsign Work Plan and approved by EPA. Upon its approval by EPA, the Remedial Action Work
Plan shall be incorporated into and enforceable under this Consent Decree. At the same time as
it submits the Remedial Action Work Plan, Settling Defendant shall submit to EPA and the State
a Health and Safety Plan for field activities required by the Remedial Action Work Plan that
conforms to the applicable Occupational Safety and Health Administration and EPA
requirements, including, but not limited to, 29 C.F.R. ~ 1910.120.
b.
The Remedial Action Work Plan shall include the following: (1) schedule
for completion of the Remedial Action; (2) method for selection of the contractor; (3) schedule
for developing and submitting other required Remedial Action plans; (4) groundwater monitoring
plan; (5) methods for satisfying permitting requirements; (6) methodology for implementing the
Operation and Maintenance Plan; (7) methodology for implementing the Contingency Plan;
(8) tentative formulation of the Remedial Action team; (9) Construction Quality Assurance Plan
("CQAP") (by construction contractor); and (10) procedures and plans for the decontamination
of equipment and the disposal of contaminated materials. The Remedial Action Work Plan also
shall include the methodology for implementing the CQAP and a schedule for implementing all
Remedial Action tasks identified in the final design submission and shall identify the initial
formulation of Settling Defendant' Remedial Action project team (including, but not limited to,
the Supervising Contractor).
c.
Upon approval of the Remedial Action Work Plan by EPA, after a
reasonable opportunity for review and comment by the State, Settling Defendant shall implement
the activities required under the Remedial Action Work Plan. Settling Defendant shall submit to
EPA and the State all reports and other deliverables required under the approved Remedial
Action Work Plan in accordance with the approved schedule for review and approval pursuant to
Section XI (EPA Approval of Plans, Reports, and Other Deliverables). Unless otherwise

11

."

directed by EPA, Settling Defendant shall not commence physical Remedial Action activities at
the Site prior to approval of the Remedial Action Work Plan.
13.
Settling Defendant shall continue to implement the Remedial Action until the
Performance Standards are achieved. Settling Defendant shall implement O&M for so long
thereafter as is required by this Consent Decree.
14.

Modification of SOW or Related Work Plans.

a.
If EPA determines that it is necessary to modify the work specified in the
SOW and/or in work plans developed pursuant to the SOW to achieve and maintain the
Performance Standards or to catTYout and maintain the effectiveness of the remedy set forth in
the ROD, and such modification is consistent with the scope of the remedy set forth in the ROD,
then EPA may issue such modification in writing and shall notify Settling Defendant of such
modificatipn. For the purposes of this Paragraph and Paragraphs 50 (Completion of the
Remedial Action) atld 51 (Completion of the Work) only, the "scope of the remedy set forth in
the ROD" is: (i) lCs on 5.4 acres and maintenance of existing clean sand cover and cap; (ii)
monitored natural attenuation ("MNA") of groundwater; (iii) dredging and off-site disposal of
approximately 2,080 tons of Wisconsin River sediments at1da sand cover over the dredged
surface; and (iv) 6-inch sand cap with activated carbon over Pfiffner Park sediments. If Settling
Defendant objects to the modification it may, within 30 days after EPA's notification, seek
dispute resolution under Paragraph 69 (Record Review).
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 fmal 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
Remedial Design or Remedial Action Work Plan under Paragraph 11 (Remedial Design) or
Paragraph 12 (Remedial Action), 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.
15.
Nothing in this Consent Decree, the SOW, or the Remedial Design or Remedial
Action Work Plans constitutes a warrat1ty or representation of any kind by Plaintiffs that
compliance with the work requirements set forth in the SOW and the Work Plans will achieve
the Perfoffilance Standards.
16.

Off-Site Shipment of Waste Material.

a.
Settling Defendant may ship Waste Material from the Site to an off-site
facility only if it verifies, prior to atlYshipment, that the off-site facility is operating in
compliance with the requirements of Section 121(d)(3) ofCERCLA, 42 U.S.C. S 9621(d)(3), and
40 C.F.R. S 300.440, by obtaining a determination from EPA that the proposed receiving facility
is operating in compliance with 42 U.S.C. S 9621(d)(3) and 40 C.F.R. S 300.440.

•
f.

12

b.
Settling Defendant may ship Waste Material from the Site to an out-ofstate waste management facility only if, prior to any shipment, it provides written notice to the
appropriate state environmental official in the receiving facility's state and to the EPA Project
Coordinator. This notice requirement shall not apply to any off-site shipments when the total
quantity of all such shipments will not exceed ten cubic yards. The written notice shall 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 written notice after the award of the contract for Remedial Action
construction and before the Waste Material is shipped.
VII. REMEDY REVIEW
17.
Periodic Review. Settling Defendant shall conduct any studies and investigations
that EPA requests in order to permit EPA to conduct reviews of whether the Remedial Action is
protective of human health and the environment at least every five years as required by Section
121(c) ofCERCLA, 42 U.S.C. S 962 1(c), and any applicable regulations.
18.
EPA Selection of Fwiher Response Actions. If EPA determines, at any time, that
the 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.

19.
Opportuni ty to Comment. Settling Defendant and, if required by Section
'll3(k)(2) or Section 1] 7 of CERCLA, 42 U.S.C. S 9613(k)(2) or S 9617, the public, will be
provided with an opportunity to comment on any further response actions proposed by EPA as a
result of the review conducted pursuant to Section 121(c) ofCERCLA and to submit written
comments for the record during the comment period.
20.
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
Paragraph 86 or Paragraph 87 (United States' Pre- and Post-Certification Reservations) are
satisfied. Settling Defendant may invoke the procedures set forth in Section XIX (Dispute
Resolution) to dispute (a) EPA's determination that the reopener conditions of Paragraph 86 or
Paragraph 87 are satisfied, (b) EPA's determination that the Remedial Action is not protective of
human health and the environment, or (c) EPA's selection of the further response actions.
Disputes pertaining to whether the Remedial Action is protective or to EPA's selection of further
response actions shall be resolved pursuant to Paragraph 69 (Record Review).
21.
Submission of Plans. If Settling Defendant is required to perform further response
actions pursuant to Paragraph 20, 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 by Settling
Defendant). Settling Defendant shall implement the approved plan in accordance with this
Consent Decree.
13

VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS
22.

Quality Assurance.

a.
Settling Defendant shall use quality assurance, quality control, and chain
of custody procedures for all treatability, design, compliance, and monitoring samples in
accordance with "EPA Requirements for Quality Assurance Project Plans (QA/R5Y'
(EPA/240/B-01l003, March 2001, reissued May 2006), "Guidance for Quality Assurance Project
Plans (QAlG-S)" (EPAl240/R-02/009, December 2002), and subsequent amendments to such
guidelines upon notification by EPA to Settling Defendant of such anlendment. Amended
guidelines shall apply only to procedures conducted after such notification.
b.
For any monitoring project under this Consent Decree, Settling Defendant
shall comply with the previously approved Multi-Site Quality Assurance Project Plan for Former
Manufactured Gas Plant Sites, dated September 4,2007, amended as appropriate (the "Multi-Site
QAPP"). If relevant to the proceeding, the Parties agree that validated sampling data generated
in accordance with the Multi-Site QAPP and reviewed and approved by EPA shall be admissible
as evidence, without objection, in any proceeding under this Consent Decree. SettLingDefendant
shall ensure that EPA and State personnel and their authorized representatives are allowed access
at reasonable times to alliaboratodes utilized by Settling Defendant in implementing this
Consent Decree. In addition, Settling Defendant shall ensure that such laboratories analyze all
samples submitted by EPA pursuant to the Mult~-Site QAPP for quality assurance monitoring.
Settling Defendant shall ensure that the laboratories it utilizes for the analysis of samples taken
pursuant to this Consent Decree perform all analyses according to accepted EPA methods.
Accepted EPA methods consist of those methods that are documented in the "USEP A Contract
Laboratory Program Statement of Work for Inorganic Analysis, ILMOS.4," and the "USEPA
Contract Laboratory Program Statement of Work for Organic Analysis, SOM01.2," and any
amendments made thereto during the course of the implementation of this Consent Decree;
however, upon approval by EPA, after opportunity for review and comment by the State, Settling
Defendant may use other analytical methods that are as stringent as or more stringent than the
CLP-approved methods. Settling Defendant shall ensure that all laboratories it uses for analysis
of samples taken pursuant to this Consent Decree participate in an EPA or EPA-equivalent
quality assurance/quality control ("QAlQC") program. Settling Defendant shall use only
laboratories that have a documented Quality System that complies with ANSI! ASQC E4-1994,
"Specifications and Guidelines for Quality Systems for Environmental Data Collection and
Enviro1U11entaL
Technology Programs" (American National Standard, January 5, 1995), and
"EPA Requirements for Quality Management Plans (QAIR-2)" (EPA/240/B-01l002, March
2001, reissued May 2006) or equivalent documentation as determined by EPA. EPA may
consider laboratories accredited under the National Environmental Laboratory Accreditation
Progranl ("NELAP") as meeting the QuaLitySystem requirements. Settling Defendant shall
ensure that aLIfield methodologies utilized in collecting samples for subsequent analysis pursuant
to this Consent Decree are conducted in accordance with the procedures set forth in the MultiSite QAPP.
23.
Upon request, Settling Defendant shall allow split or duplicate samples to be taken
by EPA and the State or their authorized representatives. Settling Defendant shall notify EPA
and the State not less than 28 days in advance of any sample collection activity unless shorter
14

notice is agreed to by EPA and the State. In addition, EPA and the State shall have the right to
take any additional samples they deem necessary. Upon request, EPA and the State shall allow
Settling Defendant to take split or duplicate samples of any samples it takes as part of Plaintiffs'
oversight of Settling Defendant's implementation of the Work.
24.
Settling Defendant shall submit to EPA and the State two copies of the results of
all sampling and/or tests or other data obtained or generated by or on behalf of Settling
Defendant with respect to the Site and/or the implementation of this Consent Decree unless EPA
and the State agree otherwise.
25.
Notwithstanding any provision of this Consent Decree, the United States and the
State retain all of their information gathering and inspection authorities and rights, including
enforcement actions related thereto, under CERCLA, RCRA, and any other applicable federal or
state statutes or regulations.
IX. ACCESS AND INSTITUTIONAL CONTROLS
26.
If the Site, or any other real property where access or land/water use restrictions
are needed, is owned or controlled by Settling Defendant:
~

a.
Settling Defendant shall, commencing on the date of lodging of the
Consent"Decree, provide the United States, the State, and their representatives, contractors, and
subcontractors, with access at all reasonable times to the Site, or such other real property, to
conduct any activity regarding the Consent Decree including, but not limited to, the following
activities:
(1)
(2)
the State;

monitoring the Work;
verifying any data or information submitted to the United States or

(3)

conducting investigations regarding contamination at or near the

(4)

obtaining samples;

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 CQAP;
(7)
implementing the Work pursuant to the conditions set forth in
Paragraph 90 (Work Takeover);

15

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

assessing Settling Defendant's compliance with the Consent

Decree;
(10) detem1ining whether the Site or other real 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; and
(11) implementing, monitoring, maintaining, reporting on, and
enforcing any Institutional Controls and the requirements of the ICIAP.
b.
Commencing on the date of lodging of the Consent Decree, Settling
Defendant shall not use the Site, or such otherreal property, in any manner that EPA detennines
will pose an tmacceptable 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 or O&M. The restrictions shall include, but not be limited to:
(1)
no entry, excavation or other disturbance, without an approved soil
management plan, of the surface soils and the parking lot in the area of the Site
depicted in Figure 3 of the ROD; and
(2)
no use or consumption of contaminated groundwater in the area of
the Site depicted in Figure 4 ohhe ROD. Well construction requires approval by
WDNR Bureau of Drinking and Groundwater.
c.

Settling Defendant shall:

(1)
Grant a right of access to conduct .any activity regarding the
Consent Decree including, but not limited to, those activities listed in
Paragraph 26.a; and grant the right to enforce the land/water use restrictions set
forth in Paragraph 26.b, including, but not limited to, the specific restrictions
listed therein and any land/water use restrictions listed in the ICIAP, as further
specified in this Paragraph 26.c. Access and the right to enforce restrictions,
conditions, or limitations shall be granted to one or more of the following persons,
as detennined by EPA: (i) the United States, on behalf of EPA, and its
representatives; (ii) the State and its representatives; and/or (iii) other appropriate
grantees. Access and the right to enforce restrictions, conditions, or limitations
other than those granted to the United States, shall include a designation that EPA
and/or WDNR as appropriate, is a third-party beneficiary, allowing EPA and /01'
WDNR to maintain the right to enforce the access and the right to enforce
restrictions, conditions, or limitations without acquiring 3!1 interest in real
property.

16

(2)
In accordance with the schedule set forth in the ICIAP, submit to
EPA for review and approval, after consultation with WDNR, regarding such real
property: (i) draft Institutional Controls that are enforceable under state or local
law; (ii) the information required for the WDNR Database under WIS. STAT.
~ 292.12(3); and (iii) a current title insurance commitment or other evidence of
title acceptable to EPA, that shows title to the land affected by the Institutional
Controls to be free and clear of all prior liens and encumbrances (except when
EPA waives the release or subordination of such prior liens or encumbrances or
when, despite best efforts, Settling Defendant is unable to obtain release or
subordination of such prior liens or encumbrances).
(3)
Within 15 days after EPA's approval and acceptance of the
Institutional Controls and the title evidence, update the title search and, if it is
determined that nothing has occurred since the effective date of the commitment,
or other title evidence, to affect the title adversely, Settling Defendant shall
provide EPA and WDNR with a final title insurance policy, or other final
evidence of title acceptable to EPA. If the Institutional Controls are to be
conveyed to the United States, the Institutional Controls and title evidence
(including final title evidence) shall be prepared in accordance with the U.S.
Department of Justice Title Standards 2001, and approval of the sufficiency of
title shall be obtained as required by 40 U.S.C. ~ 3111.
(4)
Should EPA and WDNR determine that the 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 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.
d.
Within 15 days of the approval and acceptance of the Remedial Action
Work Plan and issuance of an approval letter to Settling Defendant incorporating Institutional
Controls, WDNR shall place the Institutional Controls in the WDNR Database.
e.
As part of certifying the Completion of Work under Paragraph 51.b, EPA
and WDNR may update or impose new restrictions, limitations, or other conditions on the
property, and WDNR shall place the required Institutional Controls in the WDNR Database.
27.
If the Site, or any other real property where access and/or land/water use
restrictions are needed, is owned or controlled by persons other than Settling Defendant:
a.
Settling Defendant shall use best efforts to secure from such persons an
agreement to provide access thereto for the United States, the State, and Settling Defendant, and
their representatives, contractors, and subcontractors, to conduct any activity regarding the
Consent Decree including, but not limited to, the activities listed in Paragraph 26.a;

17

b.
If EPA determines that Institutional Controls in the fonll of state or local
laws, regulations, ordinances, zoning restrictions, or other governmental controls are insufficient
to impose necessary land/water use restrictions over such property, Settling Defendant shall use
best efforts to secure from such persons:
(1)
an agreement, enforceable by Settling Defendant and the United
States, to refrain from using the Site, or such other real property, in any manner
that EPA 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.
The agreement shall include, but not be limited to, the land/water use restrictions
listed in Paragraph 26.b; and
(2)
the execution of Institutional Controls that 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 26.a, and (ii) grant the right to enforce the land/water use restrictions
set forth in Paragraph 26.b, including, but not limited to, the specific restrictions
listed therein and any land/water use restrictions listed in the ICIAP. The
Institutional Controls shall be granted to one or more of the following persons, as
detelmined by EPA: (i) the United States, on behalf of EPA, and its
representatives, (ii) the State and its representatives, (iii) Settling Defendant and
its representatives, and/or (iv) other appropriate grantees. The Institutional
Controls, other than those granted to the United States, shall include a designation
that EPA, and/or WDNR as appropriate, is a third party beneficiary, allowing
EPA, and/or WDNR as appropriate, to maintain the right to enforce the
Institutional Controls without acquiring an interest in real property. If any
Institutional Controls are granted to Settling Defendant pursuant to this
Paragraph 27.b(2), then Settling Defendant shall monitor, maintain, report on, and
enforce such Institutional Controls. If such Institutional Controls are required by
EPA, Settling Defendant shall:
a.
provide notification to such persons of the pending
imposition of Institutional Controls for those properties, and placement of
the relevant information in the WDNR Database;
b.
in Accordance with the schedule set forth in the ICIAP,
Settling Defendant shall submit to EPA for review and approval regarding
such property: (i) draft Institutional Controls that are enforceable under
state or local law; (ii) the information required for the WDNR Database;
and (iii) a current title insurance commitment, or other evidence of title
acceptable to EPA, that shows title to the land affected by the Institutional
Controls to be free and clear of all prior liens and encumbrances (except
when EPA waives the release or subordination of such prior liens or
encumbrances or when, despite best efforts, Settling Defendant is unable
to obtain release or subordination of such prior liens or encumbrances);
18

c.
within 15 days of EPA's approval and acceptance of the
Institutional Controls and the title evidence, Settling Defendant shall
update the title search and, if it is determined that nothing has occurred
since the effective date of the commitment, or other title evidence, to
affect the title adversely, Settling Defendant shall record a notice with the
appropriate land records office that states the real property's relationship
to the Site, that EPA has selected a remedy for the Site, that a Consent
Decree has been entered for the Remedial Action, and that Institutional
Controls for the property are set forth in the WDNR Database. The notice
also shall identify the United States District Court in which the Consent
Decree was filed, the name and civil action number of this case, and the
date the Consent Decree was entered by the Court. Within 30 days after
the notice is recorded with the land records office, Settling Defendant shall
provide EPA and WDNR with a final title insurance policy, or other final
evidence of title acceptable to EPA, as well as a certified copy of the
original recorded deed notice showing the register's recording stamp, The
Institutional Controls and title evidence (including final title evidence)
shall be prepared in accordance with the U,S. Department of Justice Title
Standards 2001, and approval of the sufficiency of title must be obtained
as required by 40 U.S,C. 9 3111.
•..

d.
within 15 days of the approval and acceptance of the
Remedial Action Work Plan and issuance of an approval letter to Settling
Defendant incorporating Institutional Controls, WDNR shall place the
Institutional Controls in the WDNR Database;
e.
should EPA and WDNR determine that the Institutional
Controls require modification, Settling Defendant shall seek an agreement
from the property owner 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; And
f.
as part of certifying the Completion of Work under
Paragraph 51.b, EPA and WDNR may update or impose new restrictions,
limitations, or other conditions on the property, and WDNR shall place the
required Institutional Controls in the WDNR Database.

28.
For purposes of Paragraphs 26.c(2), 27.a and 27.b, "best efforts" includes the
payment of reasonable sums of money to obtain access, an agreement to restrict land/water use,
and/or an agreement to release or subordinate a prior lien or encumbrance. If within 30 days of
EPA' approval of the ICIAP, Settling Defendant has not: (a) obtained agreements to provide
access or restrict land/water use, as required by Paragraph 27.a, 27.b(I), or 27.b(2); or
(b) obtained, pursuant to Paragraph 26.c(2) or 27.b(2)(b), agreements from the holders of prior
liens or encumbrances to release or subordinate such liens or encumbrances, Settling Defendant
shall promptly notify the United States in writing, and shall include in that notification a
19

summary of the steps that Settling Defendant has taken to attempt to comply with Paragraph 26
or 27. The United States may, as it deems appropriate, assist Settling Defendant in obtaining
access, agreements to restrict land/water use, or the release or subordination of a prior lien or
encumbrance. Settling Defendant shall reimburse the United States under Section XVI
(payments for Response Costs) for all costs incurred, direct or indirect, by the United States in
obtaining such access, agreements to restrict land/water use, Institutional Controls, and/or the
release/subordination of prior liens or encumbrances including, but not limited to, the cost of
attorney time and the amount of monetary consideration paid or just compensation.
29.
If EPA determines that Institutional Controls in the form of state or local laws,
regulations, ordinances, zoning restrictions, or other governmental controls are needed at or in
connection with the Site, Settling Defendant shall cooperate with EPA's and the State's efforts to
secure and ensure compliance with such governmental controls.
30.
Notwithstanding any provision of the Consent Decree, the United States and the
State 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,
Chapter 292 of the Wisconsin Statutes, and any other applicable statute or regulations.
X. REPORTING REQUIREMENTS
31.
In addition to any other requirement of this Consent Decree, Settling Defendant
shall submit to EPA and the State two copies of written monthly progress reports that: (a)
describe the actions that have been taken toward achieving compliance with this Consent Decree
during the previous month; (b) include a summary of all results of sampling and tests and all
other data received or generated by Settling Defendant or its contractors or agents in the previous
month; (c) identify all plans, reports, and other deliverables required by this Consent Decree
completed and submitted during the previous month; (d) describe all actions, including, but not
limited to, data collection and implementation of work plans, that are scheduled for the next six
weeks and provide other infonnation relating to the progress of construction, including, but not
limited to, critical path diagrams, Gantt charts and Pelt charts; (e) include information regarding
percentage of completion, unresolved delays encountered or anticipated that may affect the future
schedule for implementation oftlle Work, and a description of efforts made to mitigate those
delays or anticipated delays; (1) include any modifications to the work plans or other schedules
that Settling Defendant have proposed to EPA or that have been approved by EPA; and (g)
describe all activities undertaken in support of the Community Involvement Plan during the
previous month and those to be undertaken in the next six weeks. Settling Defendant shall
submit these progress reports to EPA and the State by the tenth day of every month following the
lodging of this Consent Decree until EPA notifies Settling Defendant pursuant to Paragraph 5l.b
of Section XIV (Certification of Completion). If requested by EPA or the State, Settling
Defendant shall also provide briefings for EPA and the State to discuss the progress of the Work.
32.
Settling Defendant shall notify EPA and WDNR of any change in the schedule
described in the monthly progress report for the performance of any activity, including, but not
limited to, data collection and implementation of work plans, no later than seven days prior to the
performance of the activity.

20

33.
Upon the occurrence of any event during perforn1ance of the Work that Settling
Defendant is required to report pursuant to Section 103 of CERCLA, 42 U.S.C. 9 9603, or
Section 304 of the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42
U.S.C.9 11004, or any applicable state law or regulation, Settling Defendant shall within 24
hours of the onset of such event orally notify the EPA Project Coordinator or the Alternate EPA
Project Coordinator (in the event of the unavailability of the EPA Project Coordinator) or, in the
event that neither the EPA Project Coordinator nor Alternate EPA Project Coordinator is
available, the Emergency Response Section, Region 5, United States Environmental Protection
Agency and WDNR. These reporting requirements are in addition to the reporting required by
CERCLA Section 103 or EPCRA Section 304, or applicable state laws or regulations.
34.
Within 20 days after the onset of such
EPA and the State a written report, signed by Settling
forth the events that occurred and the measures taken,
Within 30 days after the conclusion of such an event,
setting forth all actions taken inresponse thereto.

an event, Settling Defendant shall furnish to
Defendant's Project Coordinator, setting
and to be taken, in response thereto.
Settling Defendant shall submit a report
.

35.
Settling Defendant shall submit two copies of all plans, reports, data, and other
deIiverables required by the SOW, the Remedial Design Work Plan, the Remedial Action Work
Plan, or any other approved plans to EPA and WDNR in accordance with the schedules set forth
in such plans. Settling Defendant shall simultaneously submit two copies of all such plans,
reports, data, and other deliverables to the State. Upon request by EPA, Settling Defendant shall
submit in Jlectronic form all or any portion of any deliverables Settling Defendant is required to
submit pursuant to the provisions of this Consent Decree.
36.:
All deliverables submitted by Settling Defendant to EPA that purport to document
Settling Defendant's compliance with the terms of this Consent Decree shall be signed by an
authorized representative of Settling Defendant.
XI. EPA APPROVAL
37.

OF PLANS, REPORTS,

AND OTHER DELIVERABLES

Initial Submissions.

a.
After review of any plan, report, or other deliverable that is required to be
submitted for approval pursuant to this Consent Decree, EPA, after reasonable opportunity for
review and comment by the State, shall: (1) approve, in whole or in part, th~ submission;
(2) approve the submission upon specified conditions; (3) disapprove, in whole or in part, the
submission; or (4) any combination of the foregoing.
b.
EP A also may modify the initial submission to cure deficiencies in the
submission if: (l) EPA determines that disapproving the submission and awaiting a resubmission
would cause substantial disruption to the Work or (2) 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 plan, report, or
deliverable.

21

38.
Resubmissions. Upon receipt of a notice of disapproval under Paragraph 37.a(3)
or (4), or if required by a notice of approval upon specified conditions under Paragraph 37.a(2),
Settling Defendant shall, within 45 days or such longer time as specified by EPA in such notice,
COlTecthe deficiencies and resubmit the plan, report, or other deliverable for approval. After
t
review of the resubmitted plan, report, or other deliverable, EPA may: (a) approve, in whole or in
part, the resubmission; (b) approve the resubmission upon specified conditions; (c) modify the
resubmission; (d) disapprove, in whole or in part, the resubmission, requiring Settling Defendant
to COlTecthe deficiencies; or (e) any combination of the foregoing.
t
39.
Material Defects. If an initially submitted or resubmitted plan, report, or other
deliverable contains a material defect, and the 'plan, report, or other deliverable is disapproved or
modified by EPA under Paragraph 37.b(2) or 38 due to such material defect, then the material
defect shall constitute a lack of compliance for purposes of Paragraph 82. The provisions of
Section XIX (Dispute Resolution) and Section XX (Stipulated Penalties) shall govern the accrual
and payment of any stipulated penalties regarding Settling Defendant's submissions under this
Section.
40.
Implementation. Upon approval, approval upon conditions, or modification by
EPA under Paragraph 37 (Initial Submissions) or Paragraph 38 (Resubmissions), of any plan,
report, or other deliverable, or any portion thereof: (a) such plan, report, or other deliverable, or
portion thereof, shall be incorporated into and enforceable under this Consent Decree; and
(b) Settling Defendant shall take any action required by such plan, report, or other deliverable, or
portion thereof, subject only to its right to invoke the Dispute Resolution procedures set forth in
Section XIX (Dispute Resolution) with respect to the modifications or conditions made by EPA.
The implementation of any non-deficient portion of a plan, report, or other deliverable submitted
or resubmitted under Paragraph 37 or 38 shall not relieve Settling Defendant of any liability for
stipulated penalties under Section XX (Stipulated Penalties).
XII. PROJECT COORDINATORS
41.
Within 20 days after lodging this Consent Decree, Settling Defendant, the State,
and EPA will notify each other, in writing, of the name, address, telephone number, and email
address of their respective designated Project Coordinators and Alternate Project Coordinators.
If a Project Coordinator or Alternate Project Coordinator initially designated is changed, the
identity of the successor will be given to the other Parties at least five working days before the
change occurs, unless impracticable, but in no event later than the actual day the change is made.
Settling Defendant's Project Coordinator shall be subject to disapproval by EPA and shall. have
the technical expertise sufficient to adequately oversee all aspects of the Work. Settling
Defendant's Project Coordinator shall not be an attorney for Settling Defendant in this matter.
He or she may assign other representatives, including other contractors, to serve as a Site
representative for oversight of performance of daily operations during remedial activities.
42.
Plaintiffs may designate other representatives, including, but not limited to, EPA
and State employees, and federal and State contractors and consultants, to observe and monitor
the progress of any activity undertaken pursuant to this Consent Decree. EPA's Project
Coordinator and Alternate Project Coordinator shall have the authority lawfully vested in a
Remedial Project Manager ("RPM") and an On-Scene Coordinator ("OSC") by the NCP: 40

22

C.F.R. Part 300. EPA's Project Coordinator or Alternate Project Coordinator shall have
authority, consistent with the NCP, to halt any Work required by this Consent Decree and to take
any necessary response action when he or she determines that conditions at the Site constitute an
emergency situation or may present an immediate threat to public health or welfare or the
environment due to release or threatened release of Waste Material.
43.
EPA's Project Coordinator and Settling Defendant's Project Coordinator will
meet, at a minimum, on a monthly basis.
XIII. PERFORMANCE GUARANTEE
44.
In order to ensure the full and final completion of the Work, Settling Defendant
shall establish and maintain a performance guarantee, initially in the amount of$2,571,000, for
the benefit of EPA (hereinafter "Estimated Cost of the Work"). The performance guarantee,
which must be satisfactory in form and substance to EPA, shall be in the form of one or more of
the following mechanisms (provided that, if Settling Defendant intends to use multiple
mechanisms, such multiple mechanisms shall be limited to surety bonds guaranteeing payment,
letters of credit, trust funds, and insurance policies):
. a~
A surety bond unconditionally guaranteeing payment and/or performance
of the Work that is issued by a surety company among those listed as acceptable sureties on
federal borids as set forth in Circular 570 of the U.S. Department of the Treasury;
.4

b.
One or more ilTevocable letters of credit, payable to or at the direction of
EPA, that is issued by one or more financial institution(s) (l) that has the authority to issue letters
of credit arid (2) 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 (l) that has the authority to act as a trustee and (2) whose trust operations are regulated
and examined by a federal or state agency;
d.
A policy of insurance that (l) provides EPA with acceptable rights as a
beneficiary thereof; and (2) is issued by an insurance carrier (i) that has the authority to issue
insurance policies in the applicable jurisdiction(s) and (ii) whose insurance operations are
regulated and examined by a federal or state agency;
e.
A demonstration by Settling Defendant that Settling Defendant meets the
financial test criteria of 40 C.P.R. ~ 264.143(f) with respect to the Estimated Cost of the Work
(plus the amount(s) of any other federal or any state environmental obligations financially
assured through the use of a financial test or guarantee), provided that all other requirements of
40 C.P.R. ~ 264.l43(f) are met to EPA's satisfaction; or
f.
A written guarantee. to fund or perform the Work executed in favor of EPA
by one or more 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.P.R. ~
264.141 (h)) with Settling Defendant; provided, however, that any company providing such a
23

guarantee must demonstrate to the satisfaction of EPA that it satisfies the .financial test and
reporting requirements for owners and operators set forth in subparagraphs (1) through (8) of 40
C.F.R. S 264. 143(f) with respect to the Estimated Cost of the Work (plus the amount(s) of any
other federal or any state environmental obligations financially assured through the use of a
financial test or guarantee) that it proposes to guarantee hereunder.
45.
Settling Defendant has selected, and EPA has found satisfactory, as an initial
performance guarantee a demonstration that Settling Defendant meets the financial test criteria of
40 C.F.R. S 264.143(f) pursuant to Paragraph 44.e. Within ten days after the Effective Date,
Settling Defendant shall execute or otherwise finalize all instruments or other documents
.
required in order to make the selected performance guarantee(s) legally binding and such
performance guarantee(s) shall thereupon be fully effective. Within 30 days after the Effective
Date, Settling Defendant shall submit copies of all executed and/or otherwise finalized
instruments or other documents required in order to make the selected performance guarantee(s)
legally binding to the EPA Regional Financial Management Officer in accordance with Section
XXVI (Notices and Submissions), with a copy to the United States, EPA, and the State as
specified in Section XXVI.
46.
If, aiany time after the Effective Date and before issuance of the Certification of
Completion of the Work pursuant to Paragraph 51, Settling Defendant provides a performance
guarantee for completion of the Work by means of a demonstration or guarantee pursuant to
Paragraph 44.e or 44,[, Settling Defendant shall also comply with the other relevant requirements
of 40 C.F.R. S 264. 143(f) relating to these mechanisms unless otherwise provided in this Consent
Decree, including but not limited to: (a) the initial submission of required financial reports and
statements from the relevant entity's chief financial officer ("CFO") and independent certified
public accountant ("CPA"), in the form prescribed by EPA in its financial test sample CFO
letters and CPA reports available at:
http://www .epa.gov/comp]iance/resources/policies/cleanup/superfund/fa- test-samples. pdf; (b) the
annual resubmission of such repOlis and statements within 90 days after the close of each such
entity's fiscal year; and (c) the prompt notification of EPA after each such entity determines that
it no longer satisfies the financial test requirements set forth at 40 C.F.R. S 264. 143(f)(1) and in
any event within 90 days after the close of any fiscal year in which such entity no longer satisf1es
such financial test requirements. For purposes of the performance guarantee mechanisms.
specified in this Section XIII, references in 40 C.F.R. Pali 264, Subpart H, to "closure," "postclosure," and "plugging and abandonment" shall be deemed to include the Work; the terms
"current closure cost estimate," "current post-closure cost estimate," and "current plugging and
abandonment cost estimate" shall be deemed to include the Estimated Cost of the Work; the
terms "owner" and "operator" shall be deemed to refer to Settling Defendant making a
demonstration under Paragraph 44.e; and the terms "facility" and "hazardous waste facility" shall
be deemed to include the Site.
47.
In the event that EPA determines at any time that a performance guarantee
provided by Settling Defendant pursuant to this Section is inadequate or otherwise no longer
satisfies the requirements set forth in this Section, whether due to an increase in the estimated
cost of completing the Work or for any other reason, or in the event that Settling Defendant
becomes aware of information indicating that a performance guarantee provided pursuant to this
Section is inadequate or otherwise no longer satisfies the requirements set forth in this Section,
24

whether due to an increase in the estimated cost of completing the Work or for any other reason,
Settling Defendant, within 30 days after receipt of notice of EPA's determination or, as the case
may be, within 30 days after Settling Defendant becoming aware of such information, shall
obtain and present to EPA for approval a proposal for a revised or alternative form of
perfornlance guarantee listed in Paragraph 44 that satisfies all requirements set forth in this
Section XIII; provided, however, that if Settling Defendant cannot obtain such revised or
alternative form of performance guarantee within such 30-day period, and provided further that
Settling Defendant shall have commenced to obtain such revised or alternative form of
performance guarantee within such 30-day period, and thereafter diligently proceeds to obtain the
same, EPA shall extend such period for such time as is reasonably necessary for Settling
. Defendant in the exercise of due diligence to obtain such revised or alternative fornl of
performance guarantee, such additional period not to exceed 30 days. In seeking approval for a
revised or alternative form of perfonnance guarantee, Settling Defendant shall follow the
procedures set forth in Paragraph 49.b. Settling Defendant's inability to post a performance
guarantee for completion of the Work 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 strict accordance with the terms of this Consent Decree.

I.

48.
Funding for Work Takeover. The commencement of any Work Takeover
pursuant to Paragraph 90 shall trigger EPA's right to receive the benefit of any performance
guarantee(s) provided pursuant to Paragraphs 44.a, 44.b, 44.c, 44.d, or 44.f, and at such time
EPA shall have immediate access to resources guaranteed under any such perfonnance
guarantee(s); whether in cash or in kinq, as needed to continue and complete the Work assumed
by EPA under the Work Takeover. Upon the commencement of any Work Takeover, if (a) for
any reason EPA is unable to promptly secure the resources guaranteed under any such
performance guarantee(s), whether in cash or in kind, necessary to continue and complete the
Work assumed by EPA under the Work Takeover, or (b) in the event that the performance
guarantee involves a demonst.ration of satisfaction of the financial test. criteria pursuant to
Paragraph 44.e or Paragraph 44.f(2), Settling Defendant (or in the case of Paragraph 44.f(2), the
guarantor) shall immediately upon written demand from EPA deposit into a special account
within the EPA Hazardous Substance Superfund or such other account as EPA may specify, in
immediately available funds and without setoff, counterclaim, or condition of any kind, a cash
amount up to but not exceeding the estimated cost of completing the Work as of such date, as
detennined by EPA. In addition, if at any time EPA is notified by the issuer of a performance
guarantee that such issuer intends to cancel the performance guarantee mechanism it has issued,
then, unless Settling Defendant provides a substitute performance guarantee mechanism in
accordance with this Section XIU no later than 30 days prior to the impending cancellation date,
EPA shall be entitled (as of and after the date that is 30 days prior to the impending cancellation)
to draw fully on the funds guaranteed under the then-existing performance guarantee. All EPA
Work Takeover costs not reimbursed under this Paragraph shall be reimbursed under Section
XVI (Payments for Response Costs).
49.

Modification of Amount and/or Form of Performance Guarantee.

a.
Reduction of Amount of Performance Guarantee. If Settling Defendant
believes that the estimated cost of completing the Work has diminished below the amount set
forth in Paragraph 44, Settling Defendant may, on any anniversary of the Effective Date, or at
25

any other time agreed to by the Parties, petition EPA in writing to request a reduction in the
amount of the performance guarantee provided pursuant to this Section so that the amount of the
performance guarantee is equal to the estimated cost of completing the Work. Settling Defendant
shall submit a written proposal for such reduction to EPA that shall specify, at a minimum, the
estimated cost of completing the Work and the basis upon which such cost was calculated. In
seeking approval for a reduction in the amount of the performance guarantee, Settling Defendant
shall follow the procedures set forth in Paragraph 49.b(2) for requesting a revised or alternative
form of performance guarantee, except as specifically provided in this Paragraph 49.a. If EPA
decides to accept Settling Defendant's proposal for a reduction in the amount of the perfonnance
guarantee, either to the anl0unt set forth in Settling Defendant's written proposal or to some other
amount as selected by EPA, EPA will notify the petitioning Settling Defendant of such decision
in writing .. Upon EPA's acceptance of a reduction in the amount of the performance guarantee,
the Estimated Cost of the Work shall be deemed to be the estimated cost of completing the Work
set forth in EPA's written decision. After receiving EPA's written decision, Settling Defendant
may reduce the amount of the performance guarantee in accordance with and to the extent
permitted by such written acceptance and shall submit copies of all executed and/or otherwise
finalized instruments or other documents required in order to make the selected performance
guarantee(s) legally binding in accordance with Paragraph 49.b(2). In the event of a dispute,
Settling Defendant may reduce the amount of the perfonnance guarantee required hereunder only
in accordance with a final administrative or judicial decision resolving such dispute pursuant to
Section XIX (Dispute Resolution). No change to the form or tenns of any performance
guarantee provided under this Section, other than a reduction in amount, is authorized except as
provided in Paragraphs 47 or 49.b.
b.

Change of Form of Performance Guarantee.

(l)
If, after the Effective Date, Settling Defendant desires to change
the form or terms of any p~rfonnance guarantee(s) provided pursuant to this Section,
Settling Defendant may, on any alU1iversaryof the Effective Date, or at any other time
agreed to by the Parties, petition EPA in writing to request a change in the fonn or tenns
of the performance guarantee provided hereunder. The submission of such proposed
revised or alternative performance guarantee shall be as provided in Paragraph 49.b(2).
Any decision made by EPA on a petition submitted under this Paragraph 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.
(2)
Settling Defendant shall submit a written proposal for a revised or
alternative performance guarantee to EPA that shall specify, at a minimum, the estimated
cost of completing the Work, the basis upon which such cost was calculated, and the
proposed revised performance guarantee, including all proposed instruments or other
documents required in order to make the proposed performance guarantee legally
binding. The proposed revised or alternative performance guarantee must satisfy all
requirements set f01ih or incorporated by reference in this Section. Settling Defendant
shall submit such proposed revised or alternative performance guarantee to the EPA
Regional Financial Management Officer in accordance with Section XXVI (Notices and
Submissions). EPA will notify Settling Defendant in writing of its decision to accept or

26

reject a revised or alternative performance guarantee submitted pursuant to this
Paragraph. Within ten days after receiving a written decision approving the proposed
revised or alternative performance guarantee, Settling Defendant shall execute and/or
otherwise finalize all instruments or other documents required in order to make the
selected performance guarantee(s) legally binding in a form substantially identical to the
documents submitted to EPA as part of the proposal, and such performance guarantee(s)
shall thereupon be fully effective. Settling Defendant shall submit copies of all executed
and/or otherwise finalized instruments or other documents required in order to make the
selected performance guarantee(s) legally binding to the EPA Regional Financial
Management Officer within 30 days after receiving a written decision approving the
proposed revised or alternative performance guarantee in accordance with Section XXVI
(Notices and Submissions) and to the United States, EPA, and the State as specified in
Section XXVI.
c.
Release of Performance Guarantee. Settling Defendant shall not release,
cancel, or discontinue any performance guarantee provided pursuant to this Section except as
provided in this Paragraph. If Settling Defendant receives written notice from EPA in
accordance with Paragraph 51 that the Work has been fully and finally completed in accordance
with the terms of this Consent Decree, or if EPA otherwise so notifies Settling Defendant in
writing, Settling Defendant may thereafter release, cancel, or discontinue the performance
guarantee(s) provided pursuant to this Section. In the event of a dispute, Settling Defendant may
release, cancel, or discontinue the performance guarantee(s) required hereunder only in
accordance with a final administrative or judicial decision resolving such dispute pursuant to
Section XIX (Dispute Resolution).
XIV. CERTIFICATION
50.

Completion

OF COMPLETION

of the Remedial Action.

a.
Within 90 days after Settling Defendant concludes that the Remedial
Action has been fully performed and the Performance Standards have been achieved, Settling
Defendant shall schedule and conduct a pre-certification inspection to be attended by Settling
Defendant, EPA, and the State. If, after the pre-certification inspection, Settling Defendant still
believes that the Remedial Action has been fully perfonned and the Performance Standards have
been achieved, it shall submit a 'written rep0l1 requesting certification to EPA for approval, with a
copy to the State, pursuant to Section XI (EPA Approval of Plans, Reports, and Other
Deliverables) within 30 days after the inspection. In the report, a registered professional
engineer and Settling Defendant's Project Coordinator shall state that the Remedial Action has
been completed in full satisfaction of the requirements of this Consent Decree. The written
report shall include as-built drawings signed and stamped by a professional engineer. The report
shall contain the following statement, signed by a responsible corporate official of the Settling
Defendant or Settling Defendant's Project Coordinator:
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 ofthe person or persons who manage the system,
27

or those persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief, tme, accurate,
and complete. I am aware that there are significant penalties for submitting false
infonnation, including the possibility of fine and imprisonment for knowing
violations.
If, after completion of the pre-certification inspection and receipt and review of the written
report, EPA, after reasonable opportunity for review and comment by the State, determines that
the Remedial Action or any portion thereof has not been completed in accordance with this
Consent Decree or that the Performance Standards have not been achieved, EPA will notify
Settling Defendant in writing of the activities that must be undertaken by Settling Defendant
pursuant to this Consent Decree to complete the Remedial Action and achieve the Performance
Standards, provided, however, that EPA may only require Settling Defendant to perform such
activities pursuant to this Paragraph to the extent that such activities are consistent with the
"scope of the remedy set f01th in the ROD," as that teml is defined in Paragraph 14.a. EPA will
set forth in the notice a schedule for performance of such activities consistent with the Consent
Decree and the SOW or require Settling Defendant to submit a schedule to EPA for approval
pursuant to Section Xl (EPA Approval of Plans, Reports, and Other Deliverables). Settling
Defendant shall perform all activities described in the notice in accordance with the
specifications and schedules established pursuant to this Paragraph, subject to its right to invoke
the dispute resolution procedures set forth in Section XIX (Dispute Resolution).
b.
If EPA concludes, based on the initial or any subsequent report requesting
Certification of Completion of the Remedial Action and after a reasonable opportunity for review
and comment by the State, that the Remedial Action has been performed in accordance with this
Consent Decree and that the Performance Standards have been achieved, EPA will so certify in
writing to Settling Defendant. This certification shall constitute the Certification of Completion
of the Remedial Action for purposes of this Consent Decree, including, but not limited to,
Section XXI (Covenants by Plaintiffs). Certification of Completion of the Remedial Action shall
not affect Settling Defendant's remaining obligations under this Consent Decree.
51.

Completion of the Work.

a.
Within 90 days after Settling Defendant concludes that all phases of the
Work, other than any remaining activities required under Section VII (Remedy Review), have
been fully performed, Settling Defendant shall schedule and conduct a pre-certification
inspection to be attended by Settling Defendant, EPA, and the State. If, after the pre-certification
inspection, Settling Defendant still believes that the Work has been fully performed, Settling
Defendant shall submit to EPA and WDNR a written report by a registered professional engineer
stating that the Work has been completed in full satisfaction of the requirements oftrus Consent
Decree. The report shall contain the statement set forth in Paragraph 50.a, signed by a
responsible corporate official of the Settling Defendant or Settling Defendant's Project
Coordinator. If, after review of the written report, EPA, after reasonable 0pPoltunity for review
and comment by the State, determines that any portion of the Work has not been completed in
accordance with this Consent Decree, EPA will notify Settling Defendant in writing of the
activities that must be undertaken by Settling Defendant pursuant to this Consent Decree to
complete the Work, provided, however, that EPA may only require Settling Defendant to
28

perform such activities pursuant to this Paragraph to the extent that such activities are consistent
with the "scope of the remedy set forth in the ROD," as that term is defined in Paragraph 14.a.
EPA will set forth in the notice a schedule for performance of such activities consistent with the
Consent Decree and the SOW or require Settling Defendant to submit a schedule to EPA for
approval pursuant to Section XI (EPA Approval of Plans, Reports, and Other Deliverables).
Settling Defendant shall perfonn all activities described in the notice in accordance with the
specifications and schedules established therein, subject to its right to invoke the dispute
resolution procedures set forth in Section XIX (Dispute Resolution).
b.
If EPA concludes, based on the initial or any subsequent request for
Certification of Completion of the Work by Settling Defendant and after a reasonable
opportunity for review and comment by the State, that the Work has been performed in
accordance with this Consent Decree, EPA will so notify Settling Defendant in writing.
XV. EMERGENCY RESPONSE
52.
If any action or occurrence during the performance of the Work that causes or
threatens a release of Waste Material from the Site that constitutes an emergency situation or
may present an immediate threat to public health or welfare or the environment, Settling
Defendant shall, subject to Paragraph 53, immediately take all appropriate action to prevent,
abate, or minimize such release or threat of release, and shall immediately notify EPA's Project
Coordinator, or, if the Project Coordinator is unavailable, EPA's Alternate Project Coordinator
and WDNR's Project Manager. If neither of these persons is available, Settling Defendant shall
notify the EPA Emergency Response Unit, Region 5. Settling Defendant shall also immediately
natify the WDNR 24 Hour Emergency Spill Hotline at 1-800-943-0003, the WDNR Project
Manager;'and the WDNR West Central Region Spill Coordinator. Settling Defendant shall take
such actions in consultation with EPA's Project Coordinator or other available authorized EPA
officer and in accordance with all applicable provisions of the Health and Safety Plans, the
Contingency Plans, and any other applicable plans or documents developed pursuant to the
SOW. In the event that Settling Defendant fails to take appropriate response action as required
by this Section, and EPA or, as appropriate, the State takes such action instead, Settling
Defendant shall reimburse EPA and the State all costs of the response action under Section XVI
(Payments for Response Costs) or under applicable state law.
53.
Subject to Section XXI (Covenants by Plaintiffs), nothing in the preceding
Paragraph or in this Consent Decree shall be deemed to limit any authority of the United States,
or the State, (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

29

XVI. PAYMENTS FOR RESPONSE COSTS
54.

Payment by Settling Defendant for Past Response Costs.

a.
Within 30 days after the Effective Date, Settling Defendant shall pay to
.EPA $37,469.81 in payment for Past Response Costs. Payment shall be made in accordance with
Paragraph 56.a (Instructions for Past Response Cost Payments).
b.
The total amount to be paid by Settling Defendant pursuant to
Paragraph 54.a shall be deposited by EPA in the WPSC Stevens Point MGP 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.
55.

Payments by Settling Defendant for Future Response Costs.

a.
Payments by Settling Defendant to EPA. Settling Defendant shall pay to
EPA all Future Response Costs not inconsistent with the NCP.
(1)
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, and DOJ. Settling Defendant shall make
all payments within 30 days after Settling Defendant's receipt of each bill requiring
payment, except as otherwise provided in Paragraph 57, in accordance with Paragraph
56.b (Instructions for Future Response Cost Payments).
(2)
The total amount paid by Settling Defendant pursuant to Paragraph
55a shall be deposited in the ~SC Stevens Point MGP Special Account to be retained
and used to conduct or finance response actions at or in connection with the Site, or to be
tTansferred by EPA to the EPA Hazardous Substance Superfund.
b.
Payments by Settling Defendant to State. Settling Defendant shall pay to
the State all State Future Response Costs not inconsistent with the NCP. The State will send
Settling Defendant a bill requiring payment that includes a State-prepared cost summary on a
periodic basis. Settling Defendant shall make all payments within 30 days after Settling
Defendant's receipt of each bill requiring payment, except as otherwise provided in
Paragraph 57. Settling Defendant shall make all payments to the State required by this Paragraph
in accordance with Paragraph 56.d.
56.

Payment Instructions for Settling Defendant.

a.
Instructions for Past Response Costs Payments. All payments required,
elsewhere in this Consent Decree, to be made in accordance with this Paragraph 56.a shall be
made at https://www.pay.gov to the U.S. Department of Justice account, in accordance with
instructions provided to Settling Defendant by the Financial Litigation Unit ("FLU") of the
United States Attorney's Office for the Western District of Wisconsin after the Effective Date.
30

The payment instructions provided by the FLU shall include a Consolidated Debt Collection
System ("CDCS") number, which shall be used to identify all payments required to be made in
accordance with this Consent Decree. The FLU shall provide the payment instructions to:
Naren M. Prasad
Settling Defendant's Project Coordinator
Integrys Business Support, LLC
130 East Randolph Street, 22nd Floor
Chicago, Illinois 60601
[phone]
[e-mail]
on behalf of Settling Defendant. Settling Defendant may change the individual to receive
payment instructions on its behalf by providing written notice of such change in accordance with
Section XXVI (Notices and Submissions). When making payments under this Paragraph 56.a,
Settling Defendant shall also comply with Paragraph 56.c.
b.
Instructions for Future Response Costs Payments and Stipulated Penalties.
All payments required, elsewhere in this Consent Decree, to be made in accordance with this
Paragraph 56.b shall be made by Fedwire EFT to:
Federal Reserve Bank of New York
ABA = 021030004
Account = 68.010727
SWlFT address = FRNYUS33
33 Liberty Street
New York NY 10045
Field Tag 4200 of the Fedwire message should read "D 68010727 Environmental
Protection Agency"
When making payments under this Paragraph 56.b, Settling Defendant
Paragraph 56.c.

shall also comply with

c.
Instructions for All Payments to the United States,' All payments made
under Paragraphs 56. a (Instructions for Past Response Cost Payments) or 56.b (Instructions for
Future Response Cost Payments) shall reference the CDCS Number, Site/Spill ID Number B5CJ,
and DOJ Case Number 90-11-3-10755.
At the time of any payment required to be made in
accordance with Paragraphs 56.a or 56.b, Settling Defendant shall send notice that payment has
been made to the United States, and to EPA, in accordance with Section XXVI (Notices and
Submissions), and to the EPA Cincinnati Finance Office by email at
[e-mail],
or by mail at 26 Martin Luther King Drive, Cincinnati, Ohio
45268. Such notice shall also reference the CDCS Number, Site/Spill ID Number, and DOJ Case
Number.

Penalties.

d.
Instructions for State Future Response Costs Payments and Stipulated
All payments required, elsewhere in this Consent Decree, to be made in accordance
31

with this Paragraph 56.d shall be made by official bank check made payable to Wisconsin
Depaltment of Natural Resources. Payment shall reference the Site and indicate that the payment
is being made pursuant to this Consent Decree. Settling Defendant shall send the bank check to:
Wisconsin Department of Natural Resources
Attn: Remediation & Redevelopment Program
101 S. Webster Street
Madison, WI 53703
57.
Settling Defendant may contest any Future Response Costs billed under
Paragraph 55 (Payments by Settling Defendant for Future Response Costs) if it determines that
EPA or the State 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
objection shall be made in writing within 30 days after receipt of the bill and must be sent to the
United States (if the United States' accounting is being disputed) or the State (if the State's
accounting is being disputed) pursuant to Section XXVI (Notices and Submissions). Any such
objection shall specifically identify the contested Future Response Costs and the basis for
objection. In the event of an objection, Settling Defendant shall pay all uncontested Future
Response Costs to the United States or the State 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 escrow account funds
equivalent to the amount of the contested Future Response Costs. Settling Defendant shall send
to the United States and the State, as provided in Section XXVI (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.
Simultaneously with establishment of the escrow account, Settling Defendant shall initiate the
Dispute Resolution procedures in Section XIX (Dispute Resolution). lfthe United States or the
State prevails in the dispute, Settling Defendant shall pay the sums due (with accrued interest) to
the United States or the State, if State costs are disputed, within five 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 or the State, if State costs are disputed, within five 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 Paragraphs 56.b (Instructions for Future Response Cost Payments). The dispute resolution
procedures set forth in this Paragraph in conjunction with the procedures set forth in Section XIX
(Dispute Resolution) shall be the exclusive mechanisms for resolving disputes regarding Settling
Defendant's obligation to reimburse the United States and the State or their Future Response
Costs.

:\

~
I

i)

1

58.
Interest. In the event that any payment for Past Response Costs, Future Response
Costs, or State Future Response Costs required under this Section is not made by the date
32

required, Settling Defendant shall pay Interest on the unpaid balance. The Interest to be paid on
Past Response Costs under this Paragraph shall begin to accrue on the Effective Date. The
Interest. on Future Response Costs or State 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 Paragraph 74.
XVII. INDEMNIFICATION AND INSURANCE
59.

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 representative under Section 104(e) of CERCLA, 42 U.S.C. S 9604(e). Settling
Defendant shall indemnify, save and hold harmless the United States, the State, and their
officials, agents, employees, contractors, subcontractors, and representatives for or from any and
all claims or causes of action arising fTom, 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 its 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 representative 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 their behalf
or under their 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 shall give Settling Defendant notice of any
claim for which the United States or the State plans to seek indemnification pursuant to this
Paragraph 59 and shall consult with Settling Defendant prior to settling such claim.
60.
Settling Defendant covenants not to sue and agrees not to assert any claims or
causes of action against the United States or the State for damages or reimbursement or for setoff 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 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 indelIDlify 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 arrangeme~t between
33

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.
61.
No later than 15 days before commencing anyon-site Work, Settling Defendant
shall secure, and shall maintain until the first anniversary after issuance of EPA's Certification of
Completion of the Remedial Action pursuant to Paragraph 50,b of Section XIV (Certification of
Completion), commercial genera11iability insurance with limits of two million dollars, for any
one occurrence, and automobile liability insurance with limits of two million dollars, combined.
single limit, naming the United States and the State as additional insureds with respect to all
liability arising out of the activities perfonned 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 under this Consent Decree, 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 and the
State 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.
XVIII. FORCE MAJEURE
62.
"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 perfonnance 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.
63,
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
5, and WDNR's Project Manager within 24 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 explanatiOli 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
34

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 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 notice, is able
to assess to its satisfaction whether the event is a force majeure under Paragraph 62 and whether
Settling Defendant has exercised its best efforts under Paragraph 62, EPA may, in its
unreviewable discretion, excuse in writing Settling Defendant's failure to submit timely notices
under this Paragraph.
64.
If EPA, after a reasonable 0PP0l1unity 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 perfomlance of the obligations affected by the force majeure.
65.
If Settling Defendant elects to invoke the dispute resolution procedures set forth in
Section XIX{Dispute Resolution), it shall do so no later than 15 days .after receipt 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 Paragraphs 62 and 63. 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.
XIX. DISPUTE RESOLUTION
66.
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 or the .State to enforce obligations of Settling Defendant that have
not been disputed in accordance with this Section.
67.
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
35

shall not exceed 20 days from the time the dispute arises, wlless it is modified by written
agreement of the parties to the dispute. The dispute shall be considered to have arisen when one
party sends the other parties a written Notice of Dispute.
68.

Statements of Position.

a.
In the event that the Parties cannot resolve a dispute by infOlmal
negotiations under the preceding Paragraph, then the position advanced by EPA, following
consultation with the State, shall be considered binding unless, within! 0 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 fomlal dispute resolution should proceed under Paragraph 69 (Record Review) or
Paragraph 70.
b.
Within 30 days after receipt of Settling Defendant's Statement of Position,
EPA will serve on Settling Defendant its Statement of Position, following consultation with the
State, 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 Paragraph 69
(Record Review) or Paragraph 70. Within 15 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 Paragraph 69 (Record Review) or Paragraph 70,
the parties to the dispute shall follow the procedures set forth in the paragraph determined by
EP A, following consultation with the State, 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 Paragraphs 69 and 70.
69.
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
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.
36

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
Paragraph 69.a. This decision shall be binding upon Settling Defendant, subject only to the right
to seek judicial review pursuant to Paragraphs 69.c and 69.d.
c.
Any administrative decision made by EPA pursuant to Paragraph 69.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 ten 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 69, 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 Paragraph 69.a.
70.
Formal dispute resolution for disputes that neither pertain to the selection or
adequacy of any response action nor are otherwise accorded review on the administrative record
under applicable principles of administrative law shall be governed by this Paragraph.

. ,.'
-

a.
Following receipt of Settling Defendant's Statement of Position submitted
pursuant to Paragraph 68, the Director of the Superfund Division, EPA Region 5, will issue a
final decision resolving the dispute. The Superfund Division Director's decision shall be binding
on Settling Defendant unless, within ten 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 Paragraph L (CERCLA Section 113(j) Record Review of
ROD and Work) of Section I (Background), judicial review of any dispute governed by this
Paragraph 70 shall be governed by applicable principles of law.
71.
The invocation of formal dispute resolution procedures under this Section shall
not extend, postpone, or affect in any way any obligation of Settling Defendant under this
Consent Decree, not directly in dispute, unless EPA or the Court agrees otherwise. Stipulated
penalties with respect to the disputed matter shall continue to accrue but payment shall be stayed
pending resolution of the dispute as provided in Paragraph 79. 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 XX (Stipulated Penalties).

37

XX. STIPULATED PENALTIES
72.
Settling Defendant shall be liable for stipulated penalties in the amounts set forth
in Paragraphs 73 and 74 to the United States and the State on ail equal percentage basis for
failure to comply with the requirements of this Consent Decree specified below, unless excused
under Section XVIII (Force Majeure). "Compliance" by Settling Defendant shall include
completion of all payments and activities required under this Consent Decree, or any plan, report,
or other deliverable approved under this Consent Decree, in accordance with all applicable
requirements of law, this Consent Decree, the SOW, and any plans, reports, or other deliverables
approved under this Consent Decree and within the specified time schedules established by and
approved under this Consent Decree.
73.
Stipulated Penalty Amounts - Work (Including Payments and Excluding Plans,
Reports, and Other Deliverables).
a.
The following stipulated penalties shall accrue per violation per day for
any noncompliance identified in Paragraph 73.b:
Penalty Per Violation Per Day
$500.00
$1,000.00
$5,000.00

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

b.

Compliance Milestones.

(1)

Failure to implement activities required by the Remedial Design Work

(2)
Plan; and

Failure to implement activities required by the Remedial Action Work

Plan;

(3)

Failure to meet any compliance date set forth in the RD or RA SOW.

74.
Stipulated Penalty Amounts - Plans, Reports, and other Deliverables. The
following stipulated penalties shall accrue per violation per day for failure to submit timely or
adequate repOlis or other plans or deliverables pursuant to the Consent Decree:
Penalty Per Violation Per Day
$300.00
$600.00
$2,000.00

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

75.
In the event that EPA assumes performance of a portion or all of the Work
pursuant to Paragraph 90 (Work Takeover), Settling Defendant shall be liable for a stipulated
penalty in the amount of $100,000. Stipulated penalties under this Paragraph are in addition to
the remedies available under Paragraphs 48 (Funding for Work Takeover) and 90 (Work
Takeover).
38
"

76.
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 Section XI (EPA Approval of
Plans, Reports, and Other Deliverables), 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 Paragraph 69.b or 70.a of Section XIX (Dispute Resolution), during the period, if any,
beginning on the 21st day after the date that Settling Defendant's reply to EPA's Statement of
Position is received until the date that the Director issues a final decision regarding such dispute;
or (c) with respect to judicial review by this Court of any dispute under Section XIX (Dispute
Resolution), during the period, if any, beginning on 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.
77.
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 and the State may send Settling Defendant a
V\-Titten emand for the payment of the penalties. However, penalties shall accrue as provided in
d
the preceding Paragraph regardless of whether EPA has notified Settling Defendant of a
violation.
78.
All penalties accruing under this Section shall be due and payable to the United
States and the State 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 Sectidn XIX (Dispute Resolution) within the 30-day period. All payments under this
Section shall indicate that the payment is for stipulated penalties. Payments to the United States
and the State shall be made in accordance with Paragraph 56.b (Instructions for Future Response
Cost Payments and Stipulated Penalties) and Paragraph 56.d (Instructions for State Future
Response Cost Payments and Stipulated Penalties), respectively.
79.
Penalties shall continue to accrue as provided in Paragraph 76 during any dispute
resolution period, but need not be paid until the following:
a.
lfthe 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 and the State 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 and the State within 60 days after receipt of the Court's decision or order, except as
provided in Paragraph 79.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 and the State into an interest-bearing escrow account, established at a duly
39

chartered bank or trust company that is insured by the FDIC, within 60 days after receipt of the
Comi'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 and the State or to Settling Defendant to the
extent that it prevails.
80.
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 Paragraph 79 until the date of payment and (b) if
Settling Defendant fails to timely.invoke dispute resolution, Interest shall accrue from the date of
demand under Paragraph 78 until the date of payment. If Settling Defendant fails to pay
stipulated penalties and Interest when due, the United States and the State may institute
proceedings to collect the penalties and Interest.
81.
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.
82.
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(1)ofCERCLA, 42 U.S.c. S 9622(l), provided, however, that the United States shall
not seek civil penalties pursuant to Section 122(l) ofCERCLA 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.
83.
Notwithstanding any other provision of this Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties that have acclued pursuant to
this Consent Decree.
XXI. COVENANTS BY PLAINTIFFS
84.
Covenants for Settling Defendant by United States. In consideration of the
actions that will be performed and the payments that will be made by Settling Defendant under
this Consent Decree, and except as specifically provided in Paragraphs 86 and 87 (Pre- and PostCertification Reservations), and 89 (General Reservations of Rights), the United States covenants
not to sue or to take administrative action against Settling Defendant pursuant to Sections 106
and 107(a) ofCERCLA relating to the Site. Except with respect to future liability, these
covenants shall take effect upon the receipt by EPA of the payment required by Paragraph 54.a
(Payments for Past Response Costs) and any Interest or stipulated penalties due thereon under
Paragraph 58 (Interest) or Section XX (Stipulated Penalties). With respect to future liability,
these covenants shall take effect upon Certification of Completion of Remedial Action by EPA
pursuant to Paragraph 50.b of Section XIV (Certification of Completion). These covenants are
conditioned upon the satisfactory performance by Settling Defendant of its obligations under this

40

Consent Decree. These covenants extend only to Settling Defendant and do not extend to any
other person.
85.
Covenants for Settling Defendant by State. In consideration of the actions that
will be performed and the payments that will be made by Settling Defendant under this Consent
Decree, and except as specifically provided in Paragraphs 86, 87 (Pre- and Post-Certification
Reservations), and 89 (General Reservations of Rights), the State covenants not to sue or to take
administrative action against Settling Defendant pursuant to Sections 106 and 107(a) of
CERCLA or Wisconsin statutory or common law relating to the Site. Except with respect to
future liability, these covenants shall take effect-upon the receipt by the State of the payment
required by Paragraph 54.b (Payments for Past Response Costs) and any Interest or stipulated
penalties due thereon under Paragraph 58 (Interest) or Section XX (Stipulated Penalties). With
respect to future liability, these covenants shall take effect upon Certification of Completion of
Remedial Action by EPA pursuant to Paragraph 50.b of Section XIV (Certification of
Completion). 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.
86.
Pre-Certification Reservations. 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 further response actions
relating to the Site and/or to pay the United States and the State for additional costs of response if.
(a) prior to Certification of Completion of the Remedial Action, (l) 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.
87.
Post-Certification Reservations. 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 perfoIDl further response actions
relating to the Site and/or to pay the United States and the State for additional costs of response
if, (a) subsequent to Certification of Completion of the Remedial Action, (1) conditions at the
Site, previously unknown to EPA, are discovered, or (2) information, previously unknown to
EPA, is received, in whole or in part, and (b) EPA determines that these previously unknown
conditions or this information together with other relevant information indicate that the Remedial
Action is not protective of human health or the environment.
88.
For purposes of Paragraph 86 (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 date the ROD was signed and set forth in the ROD for the Site and the
administrative record supporting the ROD. For purposes of Paragraph 87 (Post-Certification
Reservations), the information and the conditions known to EPA shall include only that
information and those conditions known to EPA as of tha date of Certification of Completion of
the Remedial Action and set forth in the ROD, the administrative record supporting the ROD, the
41

post-ROD administrative record, or in any information received by EPA pursuant to the
requirements of the AOC or this Consent Decree prior to Certification of Completion of the
Remedial Action.
89.
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.
Consent Decree;

liability for failure by Settling Defendant to meet a requirement of this

b.
liability arising [TOmthe past, present, or future disposal, release, or threat
of release of Waste Material outside of the Site;
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.
liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
g.

criminal liability;

h.
liability for violations of federal or state law that occur during or after
implementation of the Work; and
i.
liability prior to Certification of Completion of the Remedial Action, for
additional response actions that EPA determines are necessary to achieve and maintain
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 Paragraph 14 (Modification of SOW or Related
Work Plans).
90.

Work Takeover.

a.
In the event EPA, following consultation with WDNR, determines that
Settling Defendant (1) has ceased implementation of any portion ofthe Work, or (2) is seriously
or repeatedly deficient or late in its performance of the Work, or (3) is implementing the Work in
42

a manner that may cause an endangerment to human health or the environment, EPA may issue a
written notice ("Work Takeover Notice") to Settling Defenda;nt. Any Work Takeover Notice
issued by EPA will specify the grounds upon which such notice was issued and will provide
Settling Defendant a period often days within which to remedy the circumstances giving rise to
EPA' s issuance of such notice.
b.
If, after expiration of the ten-day notice period specified in Paragraph 90.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 and/or WDNR may at any time thereafter
assume the performance of all or any portiones) of the Work as EPA deems necessary ("Work
Takeover"). EPA will notify Settling Defendant in writing (which writing may be electronic) if
EPA determines that implementation of a Work Takeover is warranted under this Paragraph 90.b.
Funding of Work Takeover costs is addressed under Paragraph 48.
c.
Settling Defendant may invoke the procedures set forth in Paragraph 69
(Record Review), to dispute EPA's implementation of a Work Takeover under Paragraph 90.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 Paragraph 90.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 Paragraph 69 (Record Review) requiring EPA to temlinate such Work Takeover.
91.
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 l,aw.
XXII. COVENANTS BY SETTLING DEFENDANT
92.
Covenants by Settling Defendant. Subject to the reservations in Paragraph 94,
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 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 Sections 106(b)(2), 107, 111, 112 or 113, or any other
provision of federal or state law;
b.
any claims under CERCLA Sections 107 or 113, RCRA Section 7002(a),
42 U.S.C. ~ 6972(a), or state law regarding the Site, Past Response Costs, Future Response
Costs, State 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 Tucker Act,. 28 U.S.C. ~1491, the
Equal Access to Justice Act, 28 U.S.C. S 2412, the State Constitution, or at common law.

43

93.
Except as provided in Paragraph 96 (Claims Against De Micromis Parties) and
Paragraph 103 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if
the United States or the State bring a cause of action or issue an order pursuant to any of the
reservations in Section XXI (Covenants by Plaintiffs), other than in Paragraphs 89.a (claims for
failure to meet a requirement of the Consent Decree), 89.g (criminal liability), and 89.h
(violations of federal/state law during or after implementation of the Work), but only to the
exte'nt 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.
94.
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. S 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 plans, reports, other de1iverables or activities.
95.
Nothing in this Consent Decree shall be deemed to constitute preauthorization of a
claim within the meaning of Section III of CERCLA, 42 U.S.C. S 9611, or 40 C.F .R.
S 300.700(d).
96.
Claims Against De Micromis Parties. 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 ofCERCLA) that it may have 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.
97.
The waiver in Paragraph 96 (Claims Against De Micromis Parties) shall not apply
with respect to any defense, claim, or cause of action that Settling Defendant may havc against
any person meeting the criteria in Paragraph 96 if such person asselis a claim or cause of action
relating to the Site against Settling Defendant. This waiver also shall not apply to any claim or
cause of action against any person meeting the criteria in Paragraph 96 if EPA determines:
a.
that such person has failed to comply with any EPA requests for
infonnation or administrative subpoenas issued pursuant to Section 104(e) or Section 122(e) of
CERCLA, 42 U.S.C. S 9604(e) or S 9622(e), or Section 3007 of RCRA, 42 U.S.C. S 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 has ,been convicted of a criminal violation

44

for the conduct to which this waiver would apply and that conviction has not been vitiated on
appeal or otherwise; or
b.
that the materials containing hazardous substances contributed to the Site
by such person have contributed significantly, or could contribute significantly, either
individually or in the aggregate, to the cost of response action or natural resource restoration at
the Site.
98.
Settling Defendant agrees not to seek judicial review of the final rule listing the
Site on the NPL based on a claim that changed site conditions that resulted from the performance
of the Work in any way affected the basis for listing the Site.
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION
99.
Except as provided in Paragraph 96 (Claims Against De Micromis Parties),
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 Paragraph 96
(Claims Against De Micromis Parties), each ofthe 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(1)(2) and (3) of CERCLA, 42 U.S.C. ~ 9613(f)(2)-(3), to pursue any such persons to obtain
additional respon"secosts or response action and to enter into settlements that give rise to
contribution protection pursuant to Section 113(f)(2).
100. The Parties agree, and by entering this Consent Decree this Court finds, that this
'Consent Decree constitutes a judicially approved settlement for purposes of Section 113(f)(2) of
CERCLA, 42 U.S.C. ~ 9613(1)(2), and that each Settling Defendant 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 "matters addressed" in this Consent
Decree. The "matters addressed" in this Consent Decree are all response actions taken or to be
taken and all response costs incurred or to be incurred, at or in connection with the Site, by the
United States or any other person, except for the State, provided, however, that if the United
States exercises rights under the reservations in Section XXI (Covenants by Plaintiffs), other than
in Paragraphs 89.a (claims for failure to meet a requirement of the Consent Decree), 89.g
(criminal liability), or 89.h (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.
101. 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.
102. 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 ten
days after service of the complaint on Settling Defendant. In addition, Settling Defendant shall

45

notify the United States and the State within ten days after service or receipt of any Motion for
Summary Judgment and within ten days after receipt of any order from a court setting a case for
trial.
103.
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 XXI (Covenants by Plaintiffs).
XIV. ACCESS TO INFORMATION
104.
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 its 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, tnlcking logs, receipts, reports, sample traffic routing,
conespondence, 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.
105.

Business Confidential

and Privileged Documents.

a.
Settling Defendant may assert business confidentiality claims covering
part or all of the Records submitted to Plaintiffs under this Consent Decree to the extent
permitted by and in accordance with Section 104(e)(7) ofCERCLA, 42 U.S.c. S 9604(e)(7), and
40 C.F.R. S 2.203(b). Records detennined 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 EP A 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.
b.
Settling Defendant may assert that certain Records are privileged under the
attorney-client privilege or any other privilege recognized by federal law. If Settling Defendant
asserts such a privilege in lieu of providing Records, it shall provide Plaintiffs with the
following: (1) the title of the Record; (2) the date of the Record; (3) the name, title, affiliation
(e.g., company or firm), and address of the author of the Record; (4) the name and title of each
addressee and recipient; (5) a description of the contents of the Record; and (6) the privilege
asserted by Settling Defendant. If a claim of privilege applies only to a portion of a Record, the
Record shall be provided to the United States in redacted fonn to mask the privileged portion
only. Settling Defendant shall retain all Records that it claims to be privileged until the United
46

States has had a reasonable opportunity to dispute the privilege claim and any such dispute has
been resolved in the Settling Defendant's favor.
c.
No Records created or generated pursuant to the requirements of this
Consent Decree shall be withheld from the United States or the State on the grounds that they are
privileged or confidential.
106. No claim of confidentiality or privilege shall be made with respect to any data,
including, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific,
chemical, or engineering data, or any other documents or information evidencing conditions at or
around the Site.
.
XXV. RETENTION OF RECORDS
107. Until ten years after Settling Defendant's receipt of EPA's notification pursuant to
Paragraph 51,b (Completion of the Work), Settling Defendant shall preserve and retain all nonidentical 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 or 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 sanle period oftime 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.
108. 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, Settling Defendant shall deliver any such Records
to EPA or WDNR. Settling Defendant may assert that certain Records are privileged under the
attorney-client privilege or any other privilege recognized by federal law, If Settling Defendant
asserts such a privilege, it shall provide Plaintiffs with the following: (a) the title of the Record;
(b) the date of the Record; (c) the name, title, affiliation (e.g., company or firm), and address of
the author of the Record; (d) the name and title of each addressee and recipient; (e) a description
of the subject of the Record; and (f) the privilege asserted by Settling Defendant. If a claim of
privilege applies only to a portion of a Record, the Record shall be provided to the United States
in redacted form to mask the privileged portion only. Settling Defendant shall retain all Records
that it claims to be privileged until the United States has had a reasonable opportunity to dispute
the privilege claim and any such dispute has been resolved in the Settling Defendant's favor.
However, no Records created or generated pursuant to the requirements of this Consent Decree
shall be withheld on the grounds that they are privileged or confidential.
109, 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 the

47

earlier of notification of potential liability by the United States or the State or the filing of suit
against it regarding the Site and that it has fully complied with any and all EPA and State
requests for information regarding the Site pursuant to Sections 104(e) and 122(e) ofCERCLA,
42 U.S.C. SS 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. S 6927, and state law.
XXVI. NOTICES AND SUBMISSIONS
110. Whenever, under the terms of this Consent Decree, written notice is required to be
given or a report or other document is required to be sent by one Patiy to another, it shall be
directed to the individuals at the addresses specified below, unless those individuals or their
successors give notice of a change to the other Parties in writing. All notices and submissions
shall be considered effective upon receipt, unless otherwise provided. Written notice as specified
in this Section shall constitute complete satisfaction of any written notice requirement of the
Consent Decree with respect to the United States, EPA, the State, at1dSettling Defendant,
respectively. Notices required to be sent to EPA, and not to the United States, under the terms of
this Consent Decree should not be sent to the U.S. Department of Justice.
As to the United States:

Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20044.7611
Re: DJ # 90.11-3-10755

As to EPA:

Director, Superfund Division
United States Environmental Protection Agency
Region 5
77 West Jackson Boulevard
Mail Code: S-6J
Chicago, IL 60604

and:
Leslie Patterson
EPA Project Coordinator
United States Environmental Protection Agency
Region 5
77 West Jackson Boulevard
Mail Code: SR-6J
Chicago, IL 60604-3507
As to the State:

Tom Hvizdak
State Project Coordinator
Wisconsin Department of Natural Resources
473 Griffith Avenue
Wisconsin Rapids, WI 54494

48

and:
Lacey Cochart
Bureau of Legal Services
Wisconsin Department of Natural Resources
101 South Webster Street
Madison, WI 53703
Naren M. Prasad
Settling Defendant's Project Coordinator
Integrys Business Support, LLC
130 East Randolph Street, 22nd Floor
Chicago,IL
60601

As to Settling Defendant:

XXVII.

RETENTION

OF JURISDICTION

111.
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 telms, or to resolve disputes in accordance with Section XIX (Dispute Resolution).
XXIII. APPENDICES
112.

The following appendices

are attached to and incorporated

into this Consent

Decree:
"Appendix

A" is thc AOC.

"Appendix

B" is the ROD.

"Appendix

C" is the description

"Appendix

D" is the SOW.

XXIX.

and/or map of the Site.

COMMUNITY

INVOLVEMENT

113.
If requested by EPA or the State, Settling Defendant shall participate in
community involvement activities pursuant to the community involvement plan to be developed
by EPA. EPA will determine the appropriate role for Settling Defendant under the Plan. Settling
Defendant shall also cooperate with EPA and the State in providing information regarding the
Work to the public. As requested by EPA or the State, Settling Defendant shall participate in the
preparation of such information for dissemination to the public and in public meetings that may
be held or sponsored by EPA or the State to explain activities at or relating to the Site. Within 30
days after a request by EPA, Settling Defendant also shall provide EPA with a Technical

49

Assistance Plan ("TAP") for arranging (at Settling Defendant's own expense, up to $50,000) for
a qualified community group: (a) to receive services from (an) independent technical advisor(s)
who can help group members understand Site cleanup issues; and (b) to share this information
with others in the community during the Work conducted pursuant to this Consent Decree. The
TAP shall state that Settling Defendant will provide and arrange for any additional assistance
needed if the selected community group demonstrates such a need as provided in the SOW.
Upon its approval by EPA, the TAP shall be incorporated into and enforceable under this
Consent Decree.
Costs incurred by the United States under this Section, including the costs of any technical
assistance grant under Section 117(e) of CERCLA, 42 U.S.c. S 9617(e), shall be considered
Future Response Costs that Settling Defendant shall pay pursuant to Section XVI (Payments for
Response Costs).
XXX. MODIFICATION
114. Except as provided in Paragraph 14 (Modification of SOW or Related Work
Plans), 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 Paragraph 14, 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 ifit
fundamentally alters the basic features of the selected remedy within the meaning of 40 C.F.R.
S 300.435(c)(2)(ii). Before providing its approval to any modification to the SOW, the United
States will provide the State Witlla reasonable opportunity to review and comment on the
proposed modification.
115. Nothing in this Consent Decree shall be deemed to alter the Court's'power to
enforce, supervise, or approve modifications to this Consent Decree.
XXXI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
116. This Consent Decree shall be lodged with the Court for a period of not less than
30 days for public notice and comment in accordance with Section 122(d)(2) of CERCLA, 42
U.S.C. S 9622(d)(2), and 28 C.F.R. S 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.
117. 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.

50

XXXII. SIGNATORIES/SERVICE
118. Each undersigned representative of Settling Defendant, the United States, and the
State to this Consent Decree 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
119. 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.
120. 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
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 fOffilalservice requirements set forth in
Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court,
including, but not limited to, service of a summons. Settling Defendant need not file an answer
to the complaint in this action unless or until the Court expressly declines to enter this Consent
Decree.
XXXIII. FINAL JUDGMENT
121. This Consent Decree and its appendices constitute the final, complete, and
_ exclusive agreement and understanding among the Parties regarding the settlement embodied in
the Consent Decree. The Parties acknowledge that there are no representations, agreements, or
understandings relating to the settlement other than those expressly contained in this Consent
Decree .
'

.

121.

Upon entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment between and among the United States, the State, and Settling
Defendant The Court enters this judgment as a final judgment tmder Fed. R. Civ. P. 54 and 58.

SO ORDERED THI~Y

OF

C2Lk2014.

51

Signature Page for Consent Decree regarding theWPSC Stevens Point MGP Superfund
Alternative Site

FOR THE UNITED STATES OF AMERICA

SAM HIRSCH
Acting Assistant Attorney General
Environment and Natural Resources Division

CJg- ()o/-201'1
Date

~

~

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THOMAS A. 'AAIANI
Deputy Chief
Environmental Enforcement Section
Environment and Natural Resources Division
U. S. Department of Justice

Date

JOHN W. VAUDREUIL
United States Attorney
LESLIE K. HERJE
Assistant United States Attorney
Chief, Civil Division
Western District of Wisconsin
222 West Washington Ave.
Suite 700
Madison, WI 53703

, Signature Page for Consent Decree regarding the WPSC Stevens Point MOP Superfund
Alternative Site

JrOn THE UNItED STA'fES OF AMEltlCA

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Date

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Director
Superfund Division, Region 5
U.S. EllviroiunentalProtection Agency

Signature Page for Consent Decree regarding the WPSC Stevens Point MOP Superfund
Altel'llative Site

FOR THE STATE OF WISCONSIN

Date:

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Assistant Attorney General
Wisconsin Department of Justice
)23 W. Washington Avenue
Madison, WI 53702

Signature Page for Consent Decree regarding the WPSC Stevens Point MGP Supelfulld
Altemative Site

FOR THE DEFENDANT WISCONSIN PUBJAC SERVICE CORPORATION:

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Date

Signature

Typed Name:

Connie Lawniczak

T~k: Assistant Vice President of Shared Services
and Environmental Services
North Adams Street
Green Bay, WI 54301

Address: 700

Agent Authorized to Accept Service on Behalf of Above-Signed

Typed Name:

CT Corporation

System

Address:

8040 Excelsior Drive
Suite 200
Madison, WI 53717

Patty: