UNITED STATES DISTRICT DISTRICT OF MAINE

United States of America,

Plaintiff, ;

v. ; t t

Anson, Inc. ]

Arkwright, Inc. ; Arlon, Inc. (Laminates Division of ] Keene Corporation) ]

Axton Cross Company, Inc. j Boston Whaler, Inc. (Rockland) j Cincinnati Milacron-Heald Corporation ) Clean Harbors, Inc. ) Colgate-Palmolive Company )

(Etonic, Inc./Charles A. Eaton Co.) )

Commercial Disposal Company, Inc. ) Davidson Rubber Company, Inc. ) Digital Equipment Corporation ) Eastern Fine Paper, Inc. ) Ekco Group, Inc. (Centronics )

Data Computer Corporation) )

Ellis Paperboard Products, Inc. ) Emhart Industries, Inc. )

(Fellows Corporation) ) Fenwal, Inc. ) Flexcon Company, Inc. ) Fonda Cup & Container Group )

(Paper Corp. of America) ) Forster Manufacturing Company, Inc. ) General Electric Company )

Great Falls Products Co. ) Haartz Corp. (Haartz Auto ) Fabric Company) )

Hazen Paper Company ) IMC Magnetics Corporation ) New Hampshire Division )

International Packings Corporation ) Irving Tanning Company ) Jet-Line Services, Inc. ) Jones & Vining, Inc. ) Laidlaw Environmental Services )

(Northeast), Inc. (Northeast Solvents)) Maine Department of Transportation ) Maine Pearl Essence )

(EM Industries, Inc.) ) Mearl Corporation )

92Jlf:,'l6 FMl»:33

BY =

SDMS DocID 262365

CIVIL ACTION NO.

Nashua Corporation ) NEPTCO, Inc. (New England Printed )

Tape Company) )

Newport Plastics Corporation )

Nike Incorporated - Blue Ribbon Sports )

O.K.P. Inc. (Kyanize Paints, Inc.) ) Philips Elmet Corporation )

Pioneer Plastics Corporation )

Prime Tanning Company, Inc. )

Pro Corporation, The ) Sabre Yachts ) Saco Defense, Inc. ) Sanborn's Motor Express, Inc. )

Service Chemical Co. ) Stanley-Bostitch Inc. )

Security )

Heel Company )

Steego Corporation (Steego/Farrar-Brown ) Auto Parts) )

Thompson Tool Company, K W )

Troy Mills, Inc. ) Union Industries, Inc. )

Upaco Division of ) Worthen Industries, Inc. )

Vermont Tap & Die (Vermont American ) Corporation) )

Vernon Plastics Co. - Division of ) Borden Industries )

Vulcan Corporation ) Waterlac Industries, Inc. ) Watts Fluid-Air, Inc. (Division of )

Robert Shaw Controls Company) )

Wes, Inc. (Maine Coastal Services) ) Wilner Wood Products Co. ) Xidex Corporation Anacorp. Inc.) )

)

Defendants.

State of Maine, ) )

Plaintiff, ) )

v. ) )

Anson, Inc. )

Arkwright, Inc. )

Arlon, Inc. (Laminates Division of )

Keene Corporation) )

Axton Cross Company, Inc. )

Boston Whaler, Inc. (Rockland) )

Cincinnati Milacron-Heald Corporation )

Clean Harbors, Inc. )

Colgate-Palmolive Company ) (Etonic, Inc./Charles A. Eaton Co.) )

Commercial Disposal Company, Inc. )

Davidson Rubber Company, Inc. )

Digital Equipment Corporation )

Eastern Fine Paper, Inc. )

Ekco Group, Inc. (Centronics )

Data Computer Corporation) )

Ellis Paperboard Products, Inc. )

Emhart Industries, Inc. )

(Fellows Corporation) )

Fenwal, Inc. )

Flexcon Company, Inc. ) CIVIL ACTION Fonda Cup & Container Group ) No.

(Paper Corp. of America) ) Forster Manufacturing Company, Inc. )

General Electric Company ) Great Falls Products Co. ) Haartz Corp. (Haartz Auto )

Fabric Company) )

Hazen Paper Company ) IMC Magnetics Corporation )

New Hampshire Division )

International Packings Corporation ) Irving Tanning Company )

Jet-Line Services, Inc. )

Jones & vining, Inc. ) Laidlaw Environmental Services )

(Northeast), Inc. (Northeast Solvents)) Maine Department of Transportation ) Maine Pearl Essence )

(EM Industries, Inc.) )

Mearl Corporation ) Nashua Corporation ) NEPTCO, Inc. (New England Printed ) Tape Company) )

Newport: Plastics Corporation ) Nike Incorporated - Blue Ribbon Sports )

O.K.P. Inc. (Kyanize Paints, Inc.) )

Philips Elmet Corporation )

Pioneer Plastics Corporation )

Prime Tanning Company, Inc. ) Pro Corporation, The ) Sabre Yachts ) Saco Defense, Inc. ) Sanborn's Motor Express, Inc. )

Service Chemical Co. )

Stanley-Bostitch Inc. )

Secur ity )

Heel Company )

Steego Corporation (Steego/Farrar-Brown )

Auto Parts) )

Thompson Tool Company, K W )

Troy Mills, Inc. )

Union Industries, Inc. )

Upaco Division of )

Worthen Industries, Inc. )

Vermont Tap & Die (Vermont American )

Corporation) )

Vernon Plastics Co. - Division of ) Borden Industries )

Vulcan Corporation )

Waterlac Industries, Inc. )

Watts Fluid-Air, Inc. (Division of ) Robert Shaw Controls Company) )

Wes, Inc. (Maine Coastal Services) ) Wilner Wood Products Co. ) Xidex Corporation Anacorp. Inc.) )

)

Defendants. )

CONSENT DECREE

Page

I. BACKGROUND 1

II. JURISDICTION 4

III. PARTIES BOUNp 5

IV. DEFINITIONS 6

V. GENERAL PROVISIONS 13

VI* PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS 16

VII. U.S. EPA PERIODIC REVIEW TO ASSURE PROTECTION OF HUMAN HEALTH AND ENVIRONMENT .... 26

VIII. ADDITIONAL WORK 26

IX. QUALITY ASSURANCE; SAMPLING 28

X. ACCESS AND INSTITUTIONAL CONTROLS 30

XI. REPORTING REQUIREMENTS 33

XII. SUBMISSIONS REQUIRING AGENCY APPROVAL 36

XIII. REMEDIAL PROJECT MANAGER/PROJECT COORDINATORS . . 38

XIV. ASSURANCE OF ABILITY TO COMPLETE WORK? 40

XV. TRUST FUND 42

XVI. CERTIFICATION OF COMPLETION OF WORK 44

XVII. ENDANGERMENT AND FUTURE RESPONSE 46

XVIII. REIMBURSEMENT OF RESPONSE COSTS 47

XIX. INDEMNIFICATION AND INSURANCE 50

XX. FORCE MAJEURE 52

XXI. DISPUTE RESOLUTION 55

XXII. STIPULATED PENALTIES 60

XXIII. COVENANTS NOT TO SUE BY PLAINTIFFS 64

XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION. . . 70

Page

XXV. COVENANTS BY SETTLING DEFENDANT? 71

XXVI. ACCESS TO INFORMATION 71

XXVII. RETENTION OF RECORDS 73

XXVIII. NOTICES AND SUBMISSIONS 74

XXIX. EFFECTIVE DATE 75

XXX. RETENTION OF JURISDICTION 76

XXXI. TERMINATION 76

XXXII. MODIFICATION 77

XXXIII. COMMUNITY RELATIONS 78

XXXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .... 78

XXXV. SIGNATORIES 79

LIST OF APPENDICES

I. RECORD OF DECISION fRODl

II. STATEMENT OF WORK

III. SITE MAP

IV. SETTLING DEFENDANTS

I. BACKGROUND

The United States of America ("United States"), on behalf of

the Administrator of the United States Environmental Protection

Agency ("EPA"), and the State of Maine (the "State") filed

complaint[s] in this matter pursuant to the Comprehensive

Environmental Response, Compensation, and Liability Act, 42

U.S.C. §§ 9606, 9607, as amended, and applicable Maine law;

The United States in its complaint seeks: (1) reimbursement

of costs incurred by EPA and the Department of Justice for

response actions at the Union Chemical Company, Inc. Superfund

Site in South Hope, Maine (the "Site"), together with accrued

interest; (2) performance of studies and response work by the

Defendants at the Site in conformity with the Record of Decision

(as defined below) and the National Contingency Plan, 40 C.F.R.

Part 300, as amended ("NCP"); (3) declaration of Defendants'

liability for further response costs; and (4) such other relief

as the Court finds appropriate.

In accordance with Section 121(f) of CERCLA, 42 U.S.C. §

9621(f), EPA notified the State of Maine on January 7, 1991 of

negotiations with the potentially responsible parties ("PRPs")

for the Site regarding the scope of the remedial design and

remedial actions for the Site, and EPA has provided the State

with an opportunity to participate in such negotiations and be a

party to this Consent Decree;

The State of Maine has also filed a complaint against the

Defendants alleging that the Defendants are liable to the State

under Section 107 of CERCLA, 42 U.S.C. § 9607 and 38 M.R.S.A. §

1367 for: (1) reimbursement of costs incurred or to be incurred

by the State in connection with the Site; (2) declaration of

Defendants' liability for further response costs; (3) natural

resource damages; and (4) such other relief as the Court finds

appropriate.

In accordance with Section 122(j) of CERCLA, 42 U.S.C. §

9622(j), EPA on January 10, 1991 notified the Federal Natural

Resource Trustees of negotiations with the PRPs regarding the

scope of the remedial design and remedial action at the Site, and

has encouraged the participation of the Trustees in such

negotiations;

Pursuant to Section 105 Of CERCLA, 42 U.S.C, § 9605, EPA

proposed the Union Chemical Company, Inc. Site in South Hope,

Maine for inclusion on the National Priorities List, which is set

forth at 40 C.F.R. Part 300, Appendix B, in April, 1985. The

Site was later reproposed for inclusion on the National

Priorities List in June, 1988. Pursuant to Section 105 of

CERCLA, 42 U.S.C. § 9605, the Site was placed on the National

Priorities List on October 4, 1989, by publication in the Federal

Register, 54 Fed. Reg. 41000;

In 1988, in response to a release or a substantial threat of

a release of a hazardous substance at or from the Site, certain

potentially responsible parties commenced a Remedial

Investigation and Feasibility Study ("Rl/FS") for the Site

pursuant to 40 C.F.R. § 300.68 (1985) and 40 C.F.R. § 300.400

(1990), under the oversight of EPA and the State;

EPA issued a Remedial Investigation/Feasibility study Report

dated June 1990;

On July 5, 1990, pursuant to Section 117 of CERCLA, 42

U.S.C. § 9617, EPA published notice of the issuance of the FS and

of the proposed plan for remedial action and provided opportunity

for public comment on the proposed plan for remedial action;

Certain persons, including certain Defendants, have provided

comments on EPA's proposed plan for remedial action, and to such

comments EPA has provided a summary of responses;

The decision by EPA on the selected remedy is embodied in

the Record of Decision ("ROD"), executed on December 27, 1990, to

which the State has given its concurrence. The ROD includes a

discussion of the reasons EPA selected the remedy and an

explanation of any significant changes in the selected remedy

from that proposed;

Pursuant to Section 117(b) and (d) of CERCLA, 42 U.S.C. §

9617 (b) and (d), EPA provided public notice on January 3, 1991 of

its adoption of the final remedial action plan embodied in the

form of the ROD, including notice of the ROD'S availability to

the public;

EPA, the State, and Defendants agree that the remedy

selected in the ROD as adopted by EPA and embodied herein is

protective of the public health and the environment and is

consistent with CERCIA and the National Contingency Plan ("NCPM);

The United States and the State and certain Defendants named

in the Complaint desire to settle their alleged liability for

this matter. Based on the information currently available to EPA

and the State, EPA and the State believe that the Work will be

done properly and conducted promptly by the Settling Defendants.

The Parties have entered into this Consent Decree at arms'

length and in good faith, and the Settling Defendants do not

thereby admit to any facts alleged in the complaint[s] or in this

Consent Decree or to any liability arising out of or associated

with the transactions or occurrences alleged in the complaint[s].

The Parties recognize, and the Court by entering this

Consent Decree finds, that implementation of this Consent Decree

will expedite the cleanup of the Site, will avoid prolonged and

complicated litigation between the Parties, and that entry of

this Consent Decree is therefore fair, reasonable and in the

public interest;

NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:

II.

JURISDICTION

1. This Court has jurisdiction over the subject matter of

these actions pursuant to the following: 28 U.S.C. §§ 1331 and

1345; 42 U.S.C. §§ 9606, 9607, and 9613(b); 42 U.S.C. § 6973; and

pendent jurisdiction over the claims asserted by the State

arising under the laws of Maine. This Court also has personal

jurisdiction over the Defendants. Venue in this District is

proper under 42 U.S.C. § 9613(b). For purposes of this Consent

Decree and the underlying complaint[s], Defendants waive all

objections and defenses that they nay have to personal

jurisdiction and to jurisdiction of the Court or to venue in this

District. The complaint[s] state claims against Defendants upon

which relief may be granted. Defendants shall not challenge this

Court's jurisdiction to enter and enforce this Consent Decree.

III.

PARTIES BOUND

2. This Consent Decree applies to and is binding upon the

Settling Defendants and their directors, officers, employees,

agents, successors, assigns, trustees, heirs and contractors, the

United States on behalf of EPA, and the State of Maine on behalf

of DEP. Any change in ownership or corporate status of a

Settling Defendant, including any transfer of property, shall in

no way alter such Settling Defendant's responsibility under this

Decree. Settling Defendants shall provide a copy of this

Consent Decree to any contractor(s) and subcontractor(s) hired to

perform the Work required by this Consent Decree and shall

condition all contracts and subcontracts entered into hereunder

upon performance of the Work in conformity with the terms of this

Consent Decree. Settling Defendants shall nonetheless be

required to perform the Work in accordance with this Consent

Decree. With regard to the Work undertaken pursuant to this

Consent Decree, each of the Settling Defendants' contractors and

subcontractors shall be deemed to be related by contract to the

Settling Defendants for the purposes of Section 107(b)(3) of

CERCLA, 42 U.S.C. § 9607(b)(3). Thus, as to acts or omissions of

contractors, the Settling Defendants shall not assert a defense

to a claim made by Plaintiffs based upon CERCLA Section

107(b)(3), 42 U.S.C. § 9607(b)(3).

IV.

DEFINITIONS

3. Unless noted to the contrary, the terms of this Consent

Decree shall have the meaning assigned to those terms by the

Comprehensive Environmental Response, Compensation, and Liability

Act of 1980, as amended, 42 U.S.C. §§ 9601 et seq. and its

implementing regulations and the Solid Waste Disposal Act, as

amended, 42 U.S.C. § 6901 et seq. Whenever the terms listed

below are used in this Consent Decree and the Appendices attached

hereto, the following definitions shall apply:

"Additional Work" shall mean all activities required by

Section VIII herein.

"CERCLA" shall mean the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, as amended, 42

U.S.C. §§ 9601 et seq.

"Contractor" shall mean the company or companies retained by

the Settling Defendants to undertake and complete the Work

required by this Consent Decree. Each contractor and

\ subcontractor shall be qualified to do those portions of the Work

for which it is retained.

"Day" shall mean a calendar day unless expressly stated to

be a working day. "Working day" shall mean a day other than a

Saturday, Sunday, or federal legal holiday. In computing any

period of time under this Consent Decree, where the last day

would fall on a Saturday, Sunday, or federal legal holiday, the

period shall run until the end of the next working day.

"Defendants" shall mean the Settling Defendants.

"DEP" shall mean the Maine Department of Environmental

Protection and any successor departments or agencies of the

State.

"DEP's Past Response Costs" shall mean all of the State's

costs, including but not limited to, payroll costs, contractor

costs, travel costs, laboratory costs, and interest and indirect

costs, that DEP has incurred with respect to the site prior to

the lodging of the Consent Decree. To the extent that the State

costs relate to work performed by outside contractors, "DEP's

Past Response Costs" shall include work performed prior to the

lodging of the Consent Decree regardless of whether the State has

been billed for such work prior to lodging.

"DEP's Future Response Costs" shall mean all costs related

to this Consent Decree which are recoverable under 38 M.R.S.A. §

1367 and which the State incurs in overseeing the Work,

including, but not limited to, payroll costs, contractor costs,

travel costs, laboratory costs, community relations costs, the

costs incurred pursuant to Section X [Access and Institutional

Controls], the costs incurred pursuant to Section XVII

[Endangerment and Future Response] and, to the extent provided by

38 M.R.S.A. S 1367, the costs of reviewing or commenting on

plans, reports or other items pursuant to this Consent Decree,

verifying the Work, or otherwise implementing or enforcing this

Consent Decree. DEP's Future Response Costs shall only include

costs incurred for work performed by or on behalf of the State

after the lodging of the Consent Decree.

"EPA" shall mean the United States Environmental Protection

Agency and any successor departments or agencies of the United

States.

"EPA's Future Response Costs" shall mean all costs relating

to this Site incurred by the United States after October 31, 1990

and costs incurred by the United States relating to this Consent

Decree which are not inconsistent with the NCP including, but not

limited to, direct and indirect costs that the United States

incurs in overseeing the Work, including, but not limited to,

payroll costs, contractor costs, travel costs, laboratory costs,

community relations costs, and the costs of reviewing or

developing plans, reports or other items pursuant to this Consent

Decree, verifying the Work, or otherwise implementing or

enforcing this Consent Decree; but specifically excluding,

however, those costs which Settling Defendants agree to pay

pursuant to Sections X and XVII herein and those costs for which

8

EPA retains a right of action pursuant to Sections VII and XXIII

herein.

"EPA's Past Response Costs" shall mean all costs, including

but not limited to, payroll costs, contractor costs, travel

costs, laboratory costs, and interest and indirect costs, that

the United States has incurred with respect to the Site prior to

October 31, 1990.

"Facility" shall have the meaning provided in Section 101(9)

of CERCLA, 42 U.S.C. § 9601(9).

"Hazardous Substance" shall have the meaning provided in

Section 101(14) of CERCLA, 42 U.S.C. § 9601(14).

"Institutional Controls" shall mean the deed restrictions

(other than the filing of the Consent Decree required under

Paragraph 7) and other appropriate requirements and controls

developed: (1) to prevent further migration of contaminated

groundwater at the Site and off the Site; (2) to restrict the use

of groundwater at the Site prior to the attainment of the

Performance Standards; (3) to limit human or animal exposure to

Waste Material; and (4) to ensure non-interference with the

performance of the Work.

"National Contingency Plan" or "NCP" shall mean the

National Contingency Plan promulgated pursuant to Section 105 of

CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300,

including any amendments thereto.

"Operation and Maintenance" or "0 4 M" shall mean all

activities required under the Operation and Maintenance Plans

approved by EPA or developed by Plaintiffs pursuant to this

Consent Decree and the Statement of Work.

"Paragraph" shall mean a portion of this Consent Decree

identified by an arabic numeral.

"Parties" shall mean the United States, the State of Maine

and the Settling Defendants.

"Performance Standards" shall mean those cleanup standards,

cleanup levels, treatment standards, institutional controls and

other substantive requirements, criteria, or limitations set

forth in this Consent Decree, the ROD or in the SOW.

"Plaintiffs" shall mean the United States and its

department and agencies, and the State of Maine and its agencies

and departments, excluding the Maine Department of

Transportation.

"Record of Decision" or "ROD" shall mean the EPA Record of

Decision relating to the Site signed on December 27, 1990 by the

Regional Administrator, EPA Region I, and all attachments

thereto. The ROD is attached as Appendix I hereto.

"Remedial Action" shall mean all activities required by this

Consent Decree, except for Remedial Design and Operation and

Maintenance, but including Additional Work required under Section

VIII hereof, to be undertaken by the Settling Defendants.

"Remedial Action Work Plan(s)" shall mean the document(s)

submitted by Settling Defendants for implementation of Remedial

Action activities required under this Consent Decree and the

10

of Work (SOW), and any modifications tfiereto in

accordance with the Consent Decree and SOW.

"Remedial Design" shall mean those activities to be

undertaken by the Settling Defendants to develop the final plans

and specifications for the Remedial Action pursuant to the

Remedial Design Work Plan(s).

"Remedial Design Work Plan(s)" shall mean the document(s)

submitted by the Settling Defendants for implementation of

Remedial Design activities required under this Consent Decree and

the SOW, and any modifications thereto in accordance with this

Consent Decree and the SOW.

"Section" shall mean a portion of this Consent Decree

identified by a roman numeral and including one or more

paragraphs.

"Settling Defendants" shall mean those Defendants who are

listed in Appendix IV, and who both sign this Consent Decree, and

make payments required under Section XVIII, Paragraphs 49 and 50

of this Consent Decree.

"Site" shall mean the former Union Chemical Company

facility located in South Hope, Maine where disposal of Waste

Material was conducted, and in addition, those places where Waste

Material emanating from the Union Chemical Company facility has

come to be located. The Site is shown generally on the map

attached as Appendix III to this Consent Decree. The Site

includes approximately 12.5 acres of land along Route 17 formerly

owned by Union Chemical Company, Inc.

11

%fate" shall mean the State of Maine.

"Statement of Work" or "SOW" shall mean the statement of

work for implementation of the remedial design, remedial action,

and operation and maintenance of the remedial action at the site,

as set forth in Appendix II hereto and any modifications thereto

in accordance with this Consent Decree.

"Supervising Contractor" shall mean the contractor retained

by the Settling Defendants to carry out the Work under this

Consent Decree, and approved by EPA under Paragraphs 10 and 11.

"RCRA" (Resource Conservation and Recovery Act) shall mean

the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901 et

seq.

"United States" shall mean the United States of America,

including the United States Environmental Protection Agency.

"Waste Material" shall mean (1) any substance meeting the

definition provided in Section 101(14) of CERCLA, 42 U.S.C. §

9601(14); (2) any "pollutant or contaminant" under Section

101(33) of CERCLA, 42 U.S.C. § 9601(33); (3) any "hazardous

waste" under Section 1004(5) of RCRA, 42 U.S.C. § 6903(5); and

(4) any "hazardous substance" under 38 M.R.S.A. § 1362.

"Work" shall mean all activities Settling Defendants are

required to performed under this Consent Decree, including, but

not limited to, Remedial Design, Remedial Action, Operation and

Maintenance, and any Additional Work required to be undertaken

pursuant to Section VIII, except those required by Section XXVII

(Retention of Records).

12

V.

GENERAL PROVISIONS

4. Purposes of this Consent Decree

The purposes of this Consent Decree are to protect

public health, welfare and the environment from releases or

threatened releases of Waste Material at and from the Site by the

investigation, development, design and implementation of remedial

and monitoring programs by the Settling Defendants, and, to the

extent set forth herein, to reimburse Past and Future Response

Costs incurred by EPA and DEP.

5. Commitments by Settling Defendants

a. Settling Defendants agree jointly and severally to

finance and perform all Work at the Site in accordance with this

Consent Decree, including the Remedial Design, Remedial Action

and Operation and Maintenance activities set forth in Section VI

and in the SOW, and to reimburse the United States and the State

for Past and Future Response Costs and civil penalties to the

extent set forth in this Consent Decree.

b. In the event of the insolvency or other inability

of any one or more Settling Defendant to implement the

requirements of this Consent Decree, the remaining Settling

Defendants agree to complete all such requirements.

c. The Work set forth in Section VI and the SOW shall

be completed in accordance with the standards, specifications and

13

^ within the time periods as prescribed in Section VI and in the

SOW.

d. Settling Defendants shall assume any and all

liability arising from or relating to their acts or omissions in

the performance of the Work or their failure to perform fully or

to complete the requirements of this Consent Decree.

e. The Settling Defendants agree that with respect to

any action brought under CERCLA in the United States District

Court for matters related to this Consent Decree they will notify

the United States and the State within thirty (30) days of: the

initiation of such suit, first notice of trial, settlement, and

entry of judgment.

f. In any subsequent administrative or judicial

proceeding initiated by the United States (or the State) for

injunctive relief or other appropriate relief relating to the

Site, Settling Defendant(s) shall not assert, and may not

maintain, any defense or claim based upon the principles of

waiver or claim-splitting or otherwise 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 XXIII.

6. permits

a. All Work undertaken by the Settling Defendants

pursuant to this Consent Decree shall be undertaken in accordance

14

with the requirements of all applicable or relevant and

appropriate public health and environmental requirements, as

required by Section 121(d) of CERCLA and the NCP. The United

States and the State have determined that the obligations and

procedures authorized under this Consent Decree are consistent

with the NCP.

b. Except as provided in Section 121 (e) of CERCLA and

the NCP, no permit shall be required for any portion of the Work

conducted entirely on the Site. Where any portion of the Work

off the Site requires a federal or state permit or approval under

CERCLA and the NCP, Settling Defendants shall timely submit

applications and take all other actions necessary to obtain all

such permits or approvals.

c. All hazardous waste, as defined under Section

1004(5) of RCRA, 42 U.S.C. § 6903(5), which is generated,

treated, handled or disposed of in the performance of the Work

shall be managed by the Settling Defendants in accordance with

the NCP, including but not limited to the RCRA requirements

relating to use and signing of manifests.

d. Settling Defendants shall include in all contracts

or subcontracts entered into for Work required under this Consent

Decree provisions stating that such contractors or

subcontractors, including their agents and employees, shall

perform all activities required by such contracts or subcontracts

in compliance with all applicable laws and regulations.

15

l

11, if \ ^ *** b. As described with particularity iiTTliie SOW, the

major components of the Remedial Action for the Site are as

follows: (1) for unsaturated soils and selected saturated soils

which are contaminated above the Performance standards,

excavation and on-site low-temperature soil aeration treatment,

or an equivalent thermal desorption (aeration) treatment

technology approved by EPA (unless otherwise directed by EPA

pursuant to Paragraph 9.b.); (2) for extraction of contaminated

groundwater, vacuum-enhanced groundwater extraction, or separate

groundwater and soil vapor extraction (or combinations thereof)

approved by EPA; (3) on-site treatment (UV light/oxidation, or an

equivalent groundwater treatment/destruction technology approved

by EPA) of contaminated groundwater; (4) discharge of treated

groundwater to Quiggle Brook; (5) decontamination and demolition

of facilities at the Site; and (6) monitoring of soils beyond the

boundary of the former Union Chemical Company property.

9. a. In order to expedite the design of the Remedial

Action at the Site, Settling Defendants agree to commence and

perform the Remedial Design activities as described herein and in

the sow as a contractual obligation effective upon the receipt of

notice of the lodging of this Consent Decree with the Court.

Settling Defendants shall perform such Remedial Design activities

regardless of whether this Consent Decree is entered by the

Court.

b. (i) Upon receipt of written notification by EPA

that the EPA Regional Administrator, Region I, has signed this

17

the State, in writing, of the name, title, and qualifications of

the Supervising Contractor to be used in carrying out the

Remedial Design activities to be performed pursuant to this

Consent Decree. Settling Defendants shall also notify EPA and

the State of the names of any other contractors and/or

subcontractors proposed to be used in carrying out the Remedial

Design activities within twenty (20) days after the submission of

each approved Pre-Design and RD Work Plan. Selection of any such

contractor and subcontractor shall be subject to disapproval by

EPA. EPA will, if practicable, notify the Settling Defendants in

writing of its disapproval within fourteen (14) days of receipt

of the notice. If EPA disapproves of the selection of any

contractor or subcontractor, the Settling Defendants shall submit

a list of contractors or subcontractors, including their

qualifications, to EPA and the State within 21 days of receipt of

the disapproval of the contractor or subcontractor previously

selected. EPA will, if practicable, within 21 days of receipt of

the list, provide written notice of the names of contractors or

subcontractors that the Plaintiffs disapprove. The Settling

Defendants may at their election select any one not disapproved

on the list. After selection of a contractor or subcontractor,

Settling Defendants shall notify EPA and the State of the name of

such contractor or subcontractor within 14 days following receipt

of notice.

11. All Remedial Action and Operation and Maintenance

activities to be performed by the Settling Defendants pursuant to

19

this Consent Decree shall be under the direction and supervision

of a qualified contractor. Consistent with the time periods and

procedures established in the SOW, the Settling Defendants shall

notify EPA and the State in writing of the name, title and

qualifications of the Supervising Contractor(s) and the names of

any other.principal contractors and/or subcontractors proposed to

be used in carrying out the Remedial Action activities and/or the

Operation and Maintenance activities to be performed pursuant to

this Consent Decree. Selection of any such contractor and/or

subcontractor shall be subject to disapproval by the Plaintiffs

in accordance with the provisions of Paragraph 10.

12. Appendix II to this Consent Decree provides a Statement

of Work (SOW) for the completion of the Work required at the

Site. This Statement of Work is incorporated into and made an

enforceable part of this Consent Decree.

13. The following Work shall be performed by Settling

Defendants:

a. Consistent with the time periods specified in the

SOW, Settling Defendants shall submit for review, modification

and/or approval by EPA, after a reasonable opportunity for review

and comment by the State, work plan(s) for the Pre-Design and

Remedial Design at the Site [Pre-Design Work Plan(s) and RD Work

Plan(s), respectively]. These Work Plan(s) shall be developed in

conformance with the ROD, the SOW, EPA Superfund Remedial Design

and Remedial Action Guidance, and any additional guidance

20

documents provided by EPA to the Settling Defendants within a

reasonable tine frame before the due date(s) for the submissions.

b. The Pre-Design and RD Work Plan(s) shall include

the documents specified in the SOW, and shall contain schedules

which are consistent with the time limits identified in the SOW

for design of the Remedial Action.

c. Settling Defendants shall implement the Work

detailed in the Pre-Design and RD Work Plan(s) upon their

approval or modification by EPA pursuant to the procedures in

Section XII. Unless otherwise directed by EPA, the Settling

Defendants shall not commence field activities until approval by

EPA of these Work Plan(s). Upon such approval, these Work

Plan(s) and any submissions required thereunder or this Consent

Decree shall be deemed incorporated into and made an enforceable

part of this Consent Decree. All Remedial Design activities

shall be conducted in accordance with the National Contingency

Plan, EPA Superfund Remedial Design and Remedial Action

Guidance, any additional guidance documents provided by EPA to

the Settling Defendants within a reasonable time frame before the

activity is to be performed, and the requirements of this Consent

Decree, including the standards, specifications and schedule

contained in the SOW and these Work Plan(s).

d. Consistent with the time periods specified in the

SOW, Settling Defendants shall submit for review, modification

and/or approval by EPA, after a reasonable opportunity for review

and comment by the State, work plan(s) for the Remedial Action

21

and Operation and Maintenance at the Site [RA Work Plan(s) and 0

& M Plan(s)). These Work Plan(s) shall be developed in

conformance with the ROD, the SOW, EPA Superfund Remedial Design

and Remedial Action Guidance, and any additional guidance

documents provided by EPA to the Settling Defendants within a

reasonable time frame before the due date(s) for the submissions.

e. The RA Work Plan(s) and O 4 M Plan(s) shall include

the documents specified in the SOW, and shall contain schedules

which are consistent with the time limits identified in the SOW

for implementation of the Remedial Action and Operation and

Maintenance.

f. Settling Defendants shall implement the Work

detailed in the RA Work Plan(s) upon approval or modification of

the RA Work Plan(s) by EPA pursuant to the procedures in Section

XII. Upon approval by EPA, the RA Work Plan(s) and any

submissions required thereunder or this Consent Decree shall be

deemed incorporated into and made an enforceable part of this

Consent Decree. All Remedial Action activities shall be

conducted in accordance with the National Contingency Plan, EPA

Superfund Remedial Design and Remedial Action Guidance, any

additional guidance documents provided by EPA to the Settling

Defendants within a reasonable time frame before the activity is

to be performed, and the requirements of this Consent Decree,

including the standards, specifications and schedule contained in

the SOW and tha RA Work Plan(s). Settling Defendants shall

implement the Work detailed in the O & M Plan(s) upon approval or

22

modification of the 0 4 M Plan(s) by EPA pursuant to the

procedures in Section XII. Upon approval by EPA, the 0 4 M

Plan(s) and any submissions required thereunder or this Consent

Decree shall be deemed incorporated into and made an enforceable

part of this Consent Decree. All Operation and Maintenance

activities shall be conducted in accordance with the National

Contingency Plan, EPA Superfund Remedial Design and Remedial

Action Guidance, any additional guidance provided by EPA, and the

requirements of this Consent Decree, including the standards,

specifications and schedules contained in the SOW and the O & M

Plan(s).

g. Upon entry of this Consent Decree, all obligations

concerning Remedial Design are subject to enforcement pursuant to

this Consent Decree, including but not limited to stipulated

penalties, retroactive to the date of the lodging of this Consent

Decree.

h. Settling Defendants shall submit to EPA four (4)

bound copies and one (1) unbound copy of each Work Plan and any

other submission required under this Consent Decree or the SOW

(including schedules). Settling Defendants shall submit to the

State three (3) bound copies and one (1) unbound copy of each

Work Plan and any other submission required under this Consent

Decree or the SOW (including schedules).

14. The Parties acknowledge and agree that neither the sow

nor any of the Pre-Design, RD or RA Work Plan(s) or the 0 4 M

Plan(s) constitute a warranty or representation of any kind by

23

Plaintiffs that the SOW or such Work Plan(s) or Plan(s) will

achieve the Performance Standards set forth in the ROD, the SOW

and in Paragraph 15 below, and shall not foreclose Plaintiffs

from seeking performance of all terms and conditions of this

Consent Decree, including achieving the Performance Standards.

15. The Work performed by Settling Defendants pursuant to

this Consent Decree must achieve the following Performance

Standards:

a. Cleanup levels for contaminants in groundwater are;

bis(2-ethylhexyl)phthalate 4 ppb

carbon tetrachloride 5 ppb

chloroform (as total trihalomethanes) 100 ppb

1,1-dichloroethane (1,1-DCA) 5 ppb

1,2-dichloroethane (1,2-DCA) 5 ppb

1,2-dichloroethylene-cis (cis,1,2,DCE) 70 ppb

1,1-dichloroethylene (1,1-DCE) 7 ppb

ethylbenzene 700 ppb

methylene chloride 5 ppb

methyl ethyl ketone (2-butanone) 170 ppb

tetrachloroethylene (PCE) 5 ppb

toluene 2,000 ppb

1,2-dichloroethylene-trans (trans-l,2-DCE) 100 ppb

1,1,1,-trichloroethane (1,1,1-TCA) 200 ppb

trichloroethylene (TCE) 5 ppb

vinyl chloride 2 ppb

xylenes (total) 10,000 ppb

24

b. Cleanup levels for contaminants in the on-site

unsaturated soils and in selected saturated soils, as specified

in the SOW, are:

1,1-dichloroethylene (1,1-DCE) 0.1 ppm

trichloroethylene (TCE) o.i ppm

tetrachloroethylene (PCE) 0.1 ppm

xylenes (total) 100 ppm

c. For effluent from the groundwater treatment plant,

Federal Ambient Water Quality Criteria and Federal Maximum

Contaminant Levels for various pollutants;

d. For emissions from the groundwater treatment plant,

National Ambient Air Quality Standards for particulates and

ozone;

e. For emissions from the vacuum extraction system,

National Emission Standards for Hazardous Air Pollutants for

vinyl chloride;

f. For demolition of the facilities, National Emission

Standards for Hazardous Air Pollutants for asbestos;

g. For treatment of contaminated soils, Land Disposal

Restrictions for treatment of F001 through F005 wastes, at 40 CFR

268.41; and

h. Other standards identified as ARARs in the ROD are

hereby incorporated by reference and must be attained, as if set

forth fully herein.

25

VII.

U.S. EPA PERIODIC REVIEW TO ASSURE PROTECTION OF HUMAN HEALTH AND ENVIRONMENT

16. To the extent required by Section 121(c) of CERCLA, 42

U.S.C. § 9621(c), and any applicable regulations, EPA shall

review the remedial action at the Site at least every five (5)

years after initiation of the remedial action to assure that

human health and the environment are being protected by the

remedial action being implemented. EPA reserves the right to

seek to recover from the Settling Defendants the costs of

studies, investigations, or other response actions determined

necessary by EPA, in order to conduct the review of the site

required by Section 121(c) of CERCLA.

17. As provided by Sections 113(k) and 117 of CERCLA, 42

U.S.C. §§ 9613(k) and 9617, and the National Contingency Plan,

Settling Defendants will have an opportunity to submit comments

for the record on any proposed subsequent response action.

Settling Defendants shall be provided with an opportunity to

confer with EPA on any Additional Work proposed by EPA during the

5-year review process. Selection of any subsequent response

action shall be based on the administrative record.

VIII.

ADDITIONAL WORK

18. In the event that EPA, after reasonable opportunity for

review and comment by the State, or the Settling Defendants

determine that Additional Work, including Additional Work

26

identified during the CERCLA Section 121(c) review process, is

necessary to meet the Performance Standards described in Section

VI above, or to carry out the remedy in the ROD or the SOW,

notification of such Additional Work will be provided to the EPA

Remedial Project Manager and all Project Coordinators designated

pursuant to this Decree.

19. Any Additional Work that Settling Defendants determine

is necessary to meet the Performance Standards, or to carry out

the remedy in the ROD or the SOW, shall be subject to approval by

EPA, after reasonable opportunity for review and comment by the

State, and, if authorized by EPA, shall be completed by Settling

Defendants in accordance with the plans, specifications, and

schedules approved or established by EPA pursuant to Section XII

(Submissions Requiring Agency Approval).

20. Any Additional Work determined to be necessary by

Settling Defendants and approved by EPA, or determined to be

necessary by EPA to meet the Performance Standards or to carry

out the remedy in the ROD or the SOW, shall be completed by

Settling Defendants in accordance with the standards,

specifications, and schedules approved or established by EPA,

after reasonable opportunity for review and comment by the State.

21. Unless otherwise stated by EPA, within sixty (60) days

of receipt of notice by EPA that Additional Work is necessary, or

otherwise agreed to by the Parties, the Settling Defendants shall

submit for approval by EPA, after reasonable opportunity for

review and comment by the State, a work plan for the Additional

27

Work. The work plan shall conform to the requirements of this

Consent Decree, the National Contingency Plan, Superfund Remedial

Design and Remedial Action Guidance, and any additional guidance

documents provided by EPA to the Settling Defendants within a

reasonable time frame before the due date of the submission.

Upon approval pursuant to the procedures set forth in Section

XII, Settling Defendants shall implement the work plan for

Additional Work in accordance with the schedule contained

therein.

IX.

QUALITY ASSURANCE; SAMPLING

22. Throughout the performance of the Work, Settling

Defendants shall use quality assurance, quality control, and

chain of custody procedures in accordance with the SOW, EPA's

"Interim Guidelines and Specifications For Preparing Quality

Assurance Project Plans" (QAM-005/80), Data Quality Objective

Guidances (EPA/540/G-87/003 and 004); "EPA NEIC Policies and

Procedures Manual," May 1978, revised November 1984 (EPA/330/9

78 -001 -R) ; and subsequent amendments to such guidelines upon

notification to Settling Defendants of such amendments by EPA.

Settling Defendants shall assure that EPA and State personnel or

their authorized representatives are allowed access to any

laboratory utilized by Settling Defendants in implementing this

Consent Decree. In addition, Settling Defendants shall have a

28

designated laboratory analyze a reasonable number of samples

submitted by EPA for quality assurance monitoring.

23. Settling Defendants shall make available to EPA and the

State the validated results of all sampling and/or tests or other

verified data generated by Settling Defendants with respect to

the implementation of this Consent Decree, and shall submit these

results with the progress reports as described in Section XI of

this Consent Decree.

24. At the request of EPA or the State, Settling Defendants

shall allow split or duplicate samples to be taken by EPA, the

State, and/or their authorized representatives, of any samples

collected by Settling Defendants pursuant to the implementation

of this Consent Decree. Settling Defendants shall notify EPA and

the State not less than twenty-eight (28) days in advance of any

sample collection activity, which requirement may be waived by

EPA, after reasonable opportunity for review and comment by the

state. In addition, EPA and the State shall have the right to

take any additional samples that EPA or the State deem necessary.

EPA and the State shall, if practicable, allow split or duplicate

samples to be taken by the Settling Defendants, or their

authorized representatives, of a reasonable number of samples

collected by EPA or the State. Upon request, EPA and the State

agree to make the validated results of such split, duplicate or

additional sampling available to Settling Defendants within a

reasonable time frame. EPA and the State will, if practicable,

give the Settling Defendants at least five (5) days notice of any

29

sample collection activity to be conducted by them; but failure

of EPA or the State to do so shall not affect their respective

inspection or sampling authorities or their oversight of Settling

Defendants' performance of the Work.

25. Notwithstanding any provision of this Consent Decree,

the United States shall retain all of its information gathering,

inspection and enforcement authorities and rights under CERCLA,

RCRA and any other applicable statutes or regulations, except

that nothing in this paragraph shall affect the covenants not to

sue in Section XXIII of this Consent Decree.

X.

ACCESS AND INSTITUTIONAL CONTROLS

26. From the receipt of notice of the lodging of this

Consent Decree, the United States and its representatives,

including but not limited to EPA and the State, their employees,

agents, authorized representatives, and contractors, shall have

access at all times to the Site and any property to which access

is required for the implementation of this Consent Decree, to the

extent access to the property is controlled by or available to

Settling Defendants, for the purposes of conducting any activity

authorized by or related to this Consent Decree, including, but

not limited to:

a. Monitoring the Work or any other activities taking

place on such property;

30

b. Verifying any data or information submitted to the

United States or the State;

c. Conducting investigations relating to

contamination at or near the Site;

d. Obtaining samples;

e. Assessing the need for or planning and

implementing additional response actions at or near the Site;

f. Inspecting and copying records, operating logs,

contracts, or other documents required to assess Settling

Defendants' compliance with this Consent Decree; and

g. Assessing Settling Defendants' compliance with

this Consent Decree.

27. a. The State acknowledges that it is the receiver of

the former Union Chemical Company property and hereby grants

access to the Settling Defendants to carry out the Work and the

Additional Work, and to the United States and its employees,

agents, authorized representatives, and contractors. To the

extent that entry or access is required onto other property to

conduct the Work or Additional Work, Settling Defendants shall

use best efforts to secure from such persons owning or

controlling such other property access for Settling Defendants,

the United States, including EPA, the State, and their employees,

agents and authorized representatives, contractors or consultants

as necessary to effectuate implementation of this Consent Decree.

For purposes of this paragraph "best efforts" includes, but is

31

not limited to, seeking judicial assistance and the payment of

reasonable sums of money in consideration of access.

b. Settling Defendants shall use their best efforts to

establish and maintain the necessary Institutional Controls as

set forth in the SOW, and in accordance with the time frames set

forth in the SOW. For purposes of this subparagraph "best

efforts" includes, but is not limited to, seeking judicial

assistance and the payment of reasonable sums of money in

consideration of Institutional Controls.

c. (i). If access is not obtained within forty-five

(45) days of the date of the lodging of this Consent Decree, or

within forty-five (45) days of the date EPA determines in writing

to Settling Defendants that additional access beyond that

previously secured is necessary, Settling Defendants shall

promptly notify the United States and the State in writing. EPA

and the State may thereafter, consistent with their authorities,

assist Settling Defendants in obtaining access.

(ii). If the Institutional Controls required by Part

E.l.a.(ii)(a) of the SOW are not obtained within 180 days of

receipt of written notice that the EPA Regional Administrator,

Region I, has signed this Consent Decree, Settling Defendants

shall promptly notify the United States and the State in writing.

If the Institutional Controls required by Part E.l.a.(i) and Part

E.l.a.(ii)(b) of the SOW are not obtained within 180 days of

receipt of notice of the lodging of this Consent Decree, Settling

Defendants shall promptly notify the United States and the State

32

in writing. If EPA, after reasonable opportunity for review and

comment by the State, determines in writing to Settling

Defendants that additional Institutional Controls beyond those

previously secured are necessary and Settling Defendants have not

secured such further Institutional Controls within 180 days of

EPA's written determination, then Settling Defendants shall

notify EPA and the State in writing. Following receipt of any

written notice by Settling Defendants pursuant to this

subparagraph, EPA and the State may thereafter, consistent with

their authorities, assist Settling Defendants in obtaining the

necessary Institutional Controls.

(iii). Settling Defendants shall, in accordance with

Section XVIII herein, reimburse the United States for all costs

not inconsistent with the NCP incurred by it in obtaining access

and Institutional Controls necessary for performance of the Work

or Additional Work.

28. Notwithstanding any provision of this Consent Decree,

the United States and the State retain all of their access

authorities and access rights under CERCIA, RCRA and any other

applicable statutes or regulations.

XI.

REPORTING REQUIREMENTS

29. In addition to any other requirement of this Consent

Decree, Settling Defendants shall submit to EPA and the State

written progress reports as required in the SOW which: (a)

describe the actions which have been taken toward achieving

33

compliance with this Consent Decree during the reporting period;

(b) include all validated results of sampling and tests and all

other verified data received by or generated by Settling

Defendants during the course of the Work in the previous

reporting period; (c) include all work plans, plans, deliverables

and procedures that were completed under the Pre-Design, RD or RA

Work Plan(s) during the previous reporting period; (d) describe

all actions, data and plans which are scheduled for the next

reporting period and provide other information relating to the

progress of construction that is necessary to assess compliance

under this Consent Decree, including but not limited to, at the

Settling Defendants' option, critical path diagrams, Gantt charts

or Pert charts; (e) include information regarding percentage of

completion, unresolved delays encountered or anticipated that may

affect the future schedule for implementation of the Work, and a

description of efforts made to mitigate those delays or

anticipated delays; (f) include any modifications to the work

plans or other schedules that Settling Defendants have proposed

or that been approved by EPA; and (g) describe all activities

undertaken in support of the Community Relations Support Plan

during the previous reporting period and those to be undertaken

in the next reporting period. These progress reports are to be

submitted to EPA and the State following receipt of notice of

the lodging of this Consent Decree pursuant to the schedule set

forth in the SOW. If requested by EPA or the State, Settling

34

Defendants shall also provide briefings for EPA and the State to

discuss the progress of the Work upon seven (7) days' notice.

30. Upon the occurrence of any event during performance of

the Work which Settling Defendants are required to report

pursuant to Section 103 of CERCLA, 42 U.S.C. § 9603 and/or

Section 304 of the Emergency Planning and Community Right-To-Know

Act (EPCRA), 42 U.S.C. § 11004, Settling Defendants shall

promptly orally notify the EPA Remedial Project Manager ("RPM");

the EPA Geographic Section Chief designated pursuant to Section

XIII (in event of the unavailability of the EPA RPM); or, in the

event that neither the EPA RPM nor the EPA Geographic Section

Chief is available, the Emergency Response Unit, Region I, the

United States Environmental Protection Agency; and the State

Project Coordinator. These reporting requirements are in

addition to the reporting required by Section 103 of CERCLA and

Section 304 of EPCRA. Within twenty (20) days of the onset of

such an event, Settling Defendants shall furnish to Plaintiffs a

written report setting forth the events which occurred and the

measures taken, and to be taken, in response thereto. Within

thirty (30) days of the conclusion of such an event, Settling

Defendants shall submit a report setting forth all actions taken

to respond thereto. Settling Defendants shall submit each year,

within thirty (30) days of the anniversary of the entry of the

Consent Decree, a report (which may be contained in a progress

report submitted pursuant to Paragraph 29) to the Plaintiffs

setting forth the status of response actions at the Site, which

35

shall, at a minimum, include a statement of major milestones

accomplished in the preceding year, a statement of tasks

remaining to be accomplished, and a schedule for implementation

of the remaining Work.

31. All reports and other documents submitted by Settling

Defendants to EPA and the State (other than the progress reports

referred to above) shall be signed by the Settling Defendants'

Project coordinator.

XII.

SUBMISSIONS REQUIRING AGENCY APPROVAL

32. After review of any plan, report or other item which is

required to be submitted for approval pursuant to this Consent

Decree, EPA, after reasonable opportunity for review and comment

by the State, shall, in writing, either: (1) approve the

submission in whole or in part; (2) approve the submission upon

specified conditions; (3) modify the submission to cure the

deficiencies; (4) direct that the Settling Defendants modify the

submission; (5) disapprove the submission in whole or in part,

notifying Settling Defendants of deficiencies; or (6) any

combination of the above.

33. In the event of approval, approval upon specified

conditions, or modification by EPA, Settling Defendants shall

proceed to take any action required by the plan, report, or other

item, as approved or modified, subject to Settling Defendants'

36

rights under the dispute resolution procedures set forth in

Section XXI.

34. a. Upon receipt of a written notice of disapproval,

or a written notice requiring a modification, Settling Defendants

shall, within thirty (30) days thereafter (unless EPA, after

reasonable opportunity for review and comment by the state,

specifies more or less time), correct the deficiencies and

resubmit the plan, report, or other item for approval. After

receiving the resubmittal, EPA, after reasonable opportunity for

review and comment by the State, will exercise one of the options

in Paragraph 32. Notwithstanding a written notice of disapproval

or written notice requiring a modification, Settling Defendants

shall proceed to take any action required by any separable, non-

deficient portion of the submission approved or modified under

Paragraph 32, in accordance with the schedules established by

EPA, unless otherwise directed by EPA, after reasonable

opportunity for review and comment by the State. Implementation

of separable, non-deficient portions of the submission shall not

relieve Settling Defendants of their liability for stipulated

penalties under Section XXII.

b. Disapproval of a submission for the first time

shall not alone constitute the basis of a violation of this

Consent Decree, provided that the submission was made in good

faith and in a timely manner. If, upon the resubmission, the

plan, i-eport, or item is neither approved nor approved upon

specified conditions by EPA, after reasonable opportunity for

37

review and comment by the State, Settling Defendants shall be

deemed to be in violation of this Consent Decree. The provisions

of Section XXI (Dispute Resolution) and Section XXII (Stipulated

Penalties) shall govern the implementation of the Work and

accrual and payment of any stipulated penalties during Dispute

Resolution.

35. All plans, reports and other items required to be

submitted to EPA under this Consent Decree shall, upon approval

by EPA, be deemed to be incorporated in and an enforceable part

of this Consent Decree. In the event that EPA approves a portion

of a plan, report or other item required to be submitted to EPA

under this Consent Decree, the approved portion shall be deemed

to be incorporated in and an enforceable part of this Consent

Decree.

XIII.

REMEDIAL PROJECT MANAGER/PROJECT COORDINATORS

36. Within ten (10) days of the receipt of notice of the

lodging of this Consent Decree, the Settling Defendants shall

notify EPA and the State, in writing, of the name, address and

telephone number of the Settling Defendants' Project Coordinator

and an Alternate Project Coordinator. The Settling Defendants'

Project Coordinator shall be subject to approval by EPA, after

reasonable opportunity for review and comment by the State, and

shall have the technical expertise sufficient to oversee

adequately all aspects of the Work. The Settling Defendants'

38

Project Coordinator shall not be acting as an attorney for any of

the Settling Defendants in this matter. He or she nay assign )

other representatives, including other contractors, to serve as a

Site representative for oversight of performance of daily

operations during remedial activities. Within ten (10) days of

lodging of this Consent Decree/ EPA will designate, in writing,

a Remedial Project Manager (RPM) for administration of its

responsibilities, for oversight of the day-to-day activities

conducted under this Consent Decree, and for receipt of all

written matter required by this Consent Decree. In addition, EPA

will designate, in writing, a Geographic Section Chief. The

State will designate a State Project Coordinator within the same

ten (10) day period. If any Party decides to change its

designated Project Coordinator or RPM, the name, address, and

telephone number of the successor shall be given to the other

Parties within five (5) working days before the change is to be

effective, unless impracticable, but in no event later than the

actual day the change is made.

37. Plaintiffs may designate other representatives,

including 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 RPM shall have the authority lawfully vested in an RPM and

On-Scene Coordinator (OSC) by the National Contingency Plan, 40

C.F.R. Part 300. In addition, the EPA RPM shall have authority

consistent with the National Contingency Plan, to halt, conduct,

39

or direct any work required by this Consent Decree, and to take

any necessary response action when he or she determines that

conditions at the Site nay present an endangerment to public

health or welfare or the environment.

XIV.

38. within sixty (60) days of receipt of notice of the

lodging of this Consent Decree, Settling Defendants shall

demonstrate their ability to complete the Work and to pay all

claims that arise from the performance of the Work by obtaining

and maintaining financial security, equalling the total estimated

cost of the Work, in one of the following forms:

a. A surety bond guaranteeing performance of the Work;

b. One or more irrevocable letters of credit;

c. A trust fund, as provided in Section XV of this

Consent Decree;

d. A guarantee to perform the Work by a one or more

parent corporations, sibling corporations, subsidiaries, or by

one or more unrelated corporations which have a substantial

business relationship with at least one of the Settling

Defendants;

e. A demonstration that one or more of the Settling

Defendants satisfies the requirements of 40 C.F.R. Part

264.143(f); or

40

f. Internal financial information regarding Settling

Defendants' net worth, cash flow, total liabilities, and current

rating for most recent bond issuances sufficient to demonstrate

to EPA's satisfaction that one or more Settling Defendants have

the financial ability to complete the Work.

39. If the Settling Defendants seek to demonstrate the

ability to complete the Work through a guarantee by a third

party, Settling Defendants shall demonstrate that the guarantor

satisfies the requirements of 40 C.F.R. Part 264.143(f). If

Settling Defendants seek to demonstrate their ability to complete

the Work pursuant to Paragraph 38.d. through 38.f., they shall

resubmit sworn statements conveying the information required by

40 C.F.R. Part 264.143(f) annually, on the anniversary of the

effective date of this Consent Decree.

40. In the event that EPA, after reasonable opportunity for

review and comment by the State, determines at any time that such

financial assurances are inadequate, Settling Defendants shall,

within sixty (60) days of receipt of written notice of EPA's

determination, obtain and present for approval to EPA, after

reasonable opportunity for review and comment by the State, one

of the other forms of financial assurance listed in Paragraph 38.

Settling Defendants' inability to demonstrate financial ability

to complete the Work and pay all claims that arise from the

performance of the Work shall not excuse performance of any

activities required under this Consent Decree.

41

XV.

TRUST FUND

41. a. Within thirty (30) days of the Settling Defendants'

receipt of notice of the lodging of this Consent Decree, Settling

Defendants shall present to EPA and the State for approval a

fully executed trust agreement (the "RD/RA Trust Agreement"}

establishing the Union Chemical Site Remedial Design/Remedial

Action Trust Fund (the "RD/RA Trust Fund") and shall notify EPA

and the State of the identity and qualifications of the

Trustee(s). The RD/RA Trust Agreement shall confer upon the

Trustee all powers and authorities necessary to finance the

obligations of the Settling Defendants under this Consent Decree.

Money paid into the RD/RA Trust Fund by Settling Defendants shall

be used solely to pay proper and necessary expenses pursuant to

this Consent Decree, including expenses of administering the

RD/RA Trust. The RD/RA Trust Fund may not be used to pay

stipulated penalties that may be required to be paid pursuant to

Section XXII and shall not be used to pay attorneys' fees or

other litigation costs of the Settling Defendants.

b. Notwithstanding anything in the RD/RA Trust

Agreement, Settling Defendants shall be jointly and severally

liable for compliance with this Consent Decree. Settling

Defendants shall provide EPA and the State with written notice at

least twenty (20) days in advance of any proposed change in the

RD/RA Trust Agreement or of the Trustee. EPA and the State,

through their approval of the terms and conditions of the RD/RA

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Trust Agreement or otherwise, do not guarantee the monetary

sufficiency of the RD/RA Trust Fund nor the legal sufficiency of

the RD/RA Trust Agreement.

42. The Parties understand that Plaintiffs may enter into

an Administrative Order By Consent, EPA Docket No. 1-91-1067,

(the "Administrative Order by Consent"), pursuant to Sections

122(g)(4) of CERCLA and 38 M.R.S.A. § 1365, with certain PRPs who

have been denominated as de minimis PRPs for the Union Chemical

Company Site. The Administrative Order by Consent provides that

a portion of the monies paid into the Union Chemical Site De

Minimis Trust Fund may be used by the Settling Defendants for

performance of the Work. However, Settling Defendants agree that

no portion of the monies paid into the Union Chemical De Minimis

Trust Fund shall be used to reimburse the United States for EPA's

Past Response Costs.

43. The RD/RA Trust Agreement shall provide that the «

Trustee shall, within sixty (60) days of his appointment and

within thirty days of each anniversary date of the RD/RA Trust

and until EPA issues the Certification of Completion of the Work,

submit to Settling Defendants, EPA, and the State financial

reports, which shall include the amount of money currently in the

RD/RA Trust Fund and in the Union Chemical Site De Minimis Trust

Fund and setting forth cash flow projections showing the level of

funds that will be necessary to pay for the obligations of

Settling Defendants under this Consent Decree for the next year.

If the amount of money in the RD/RA Trust Fund and the Union

43

Chemical Site De Mininis Trust Fund is less than the amount

projected in the Trustee's report to be needed for the next year,

Settling Defendants shall, within thirty (30) days of issuance of

the Trustee's report, deposit into the RD/RA Trust Fund amounts

sufficient to bring the level of the RD/RA Trust Fund up to that

projected amount.

44. If any Settling Defendant fails to pay within thirty

(30) days into the RD/RA Trust Fund the additional amounts

required under Paragraph 43, the other remaining Settling

Defendants shall make the necessary payments within thirty (30)

days thereafter. The failure of any Settling Defendant to make

payments into the RD/RA Trust Fund shall not excuse timely

completion of any obligation under this Consent Decree. Settling

Defendants shall in any event make payments to the RD/RA Trust

Fund when and to the extent necessary to ensure the uninterrupted

progress and timely completion of the Work.

XVI.

CERTIFICATION OF COMPLETION OF WORK

45. Within ninety (90) days after Settling Defendants

conclude that the Work (including 0 & M) has been fully

performed, Settling Defendants shall so notify the United States,

EPA, and the State and shall schedule and conduct a pre

certification inspection to be attended by Settling Defendants,

EPA and the State. Such inspection shall be followed within

thirty (30) days by a written report signed by the Settling

44

Defendants' Project Coordinator and by a registered professional

engineer certifying that the Work has been completed in full

satisfaction of the pertinent requirements of this Consent

Decree. If EPA determines, after reasonable opportunity for

review and comment by the State, that the Work or any portion

thereof has not been completed in accordance with this Consent

Decree, EPA shall notify Settling Defendants in writing of the

activities that must be done to complete the Work, and shall

require Settling Defendants to submit a schedule pursuant to

Section XII to EPA for approval, after reasonable opportunity for

review and comment by the State, for the performance of such

activities. Settling Defendants shall perform all activities

described in the notice in accordance with the specifications and

schedules approved by EPA, subject to their right to invoke the

dispute resolution procedures in Section XXI.

46. If EPA, after a reasonable opportunity for review and

comment by the State concludes, following the initial or any

subsequent notification of completion of Work by Settling

Defendants that the Work has been fully performed in accordance

with this Consent Decree, EPA shall so certify in writing to

Settling Defendants. This certification shall constitute the

"Certification of Completion of Work" for purposes of this

Consent Decree, including Section XXIII ( Covenants Not to Sue by

Plaintiffs).

45

XVII.

EKDANGERMENT AND FUTURE RESPONSE

47. When Settling Defendants learn or should have learned

of an event or occurrence during and related to Settling

Defendants' performance of the Work that causes or threatens a

release of Waste Material on, at, or from the Site, or that may

present an endangerment to public health or welfare or the

environment, Settling Defendants shall immediately take all

appropriate action to prevent, abate, or Minimize such release or

endangerment, and shall immediately notify the EPA RPM, the EPA

Emergency Response Unit, Region I, the State Project Coordinator

and the Maine State Police. Settling Defendants shall take such

action in accordance with all applicable provisions of the Health

and Safety Plan(s) developed pursuant to the SOW and approved by

EPA. The Settling Defendants shall develop and submit a response

plan to EPA within ten (10) days or as soon thereafter as is

practicable. The provisions of Section XII apply to the

submission of such response plan, except that the time period for

resubmission after disapproval shall be fourteen (14) days rather

than the thirty (30) days, unless extended by EPA. In the event

that Settling Defendants fail to take appropriate response action

as required by this Section and EPA and/or the State take such

action instead, Settling Defendants shall reimburse all costs of

the response action which are not inconsistent with the NCP or

which are recoverable under state law. Payment of such response

costs shall be made in the manner described in Paragraph 49 of

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Section XVIII, within thirty (30) days of Settling Defendants'

receipt of demand for payment. Nothing herein shall require

Settling Defendants to carry out any response actions or

reimburse EPA or the State for any response actions if the

requirements of 42 U.S.C. § 9607(b) are met and the harm caused

by an event or occurrence as defined in this Paragraph 47 is

divisible from the harm existing at the Site.

48. Nothing in the preceding paragraph shall be deemed to

limit the power and authority of the United States, the State, or

this Court to take, direct, or order all appropriate action to

protect public health, welfare, or the environment or to prevent,

abate, or minimize an actual or threatened release of Waste

Material on, at, or from the Site.

XVIII.

REIMBURSEMENT OF RESPONSE COSTS

49. a. Within thirty (30) days of receipt of notice of the

entry of this Consent Decree, Settling Defendants shall, jointly

and severally, pay to EPA $2,800,ooo in the form of a certified

check made payable to "EPA Hazardous Substances Superfund," and

referencing the Union Chemical Superfund Site, CERCLA Number 65,

and DOJ Case Number 90-11-2-643, in reimbursement of EPA's Past

Response Costs and EPA's Future Response Costs. The certified

check shall be forwarded to EPA Region I, Attn: Superfund

Accounting, P.O. Box 360197M, Pittsburgh, PA 15251. Copies of

the check and transmittal letter shall be sent to EPA's RPM and

47

to the Regional Hearing Clerk, EPA Region I, J.F.K. Federal

Building, Boston, MA 02203.

b. If Settling Defendants are required to make

payments to EPA pursuant to Paragraphs 27.c.(iii) or 47, EPA

shall send the Settling Defendants a bill requiring payment.

EPA's demand for payment shall include an accounting consisting

of a detailed cost summary by category of costs and a brief

narrative describing the activities performed. Payment shall be

made in the manner described in Paragraph 49.a. above, within

thirty (30) days of Settling Defendants' receipt of each bill

requiring payment.

50. a. Within thirty (30) days of the receipt of notice of

entry of this Consent Decree, Settling Defendants shall, jointly

and severally, pay to the State $125,000 in the form of a

certified check made payable to the Maine DEP Uncontrolled

Hazardous Substance Fund, in reimbursement of DEP's Past Response

Costs and for any claim for damages to natural resources

resulting from Site activity. The certified check shall be

forwarded to the Director, Division of Site Investigation and

Remediation, Bureau of Hazardous Materials and Solid Waste

Control, State House, Station 17, Augusta, ME 04333, Attention:

Union Chemical Project Coordinator. Copies of the check and any

transmittal letter(s) shall be sent to the State's Project

Coordinator.

b. Settling Defendants shall, jointly and severally,

reimburse the State for DEP's Future Response Costs. DEP shall

48

send to the Settling Defendants a bill requiring payment, on an

annual basis. DEP's demand for payment shall include an

accounting consisting of a detailed cost summary by category of

costs and a brief narrative describing the activities performed.

Payment shall be made in the manner described in Paragraph 50.a.

above, within thirty (30) days of Settling Defendants' receipt of

each bill requiring payment.

c. Notwithstanding anything in this Consent Decree to

the contrary, in the event that Settling Defendants elect to

conduct studies for in-situ vapor extraction as set forth in

Paragraph 9.b. herein, the Settling Defendants shall reimburse

the State for all costs of reviewing and evaluating said studies

which are recoverable under 38 M.R.S.A. § 1367, up to a total

cost of $8,000. The submission of bills for payment and the

making of payments shall be governed by the procedures set forth

in Paragraph 50.a.

51. In the event that the payments required by Paragraphs

49 and 50 are not made timely, Settling Defendants shall pay

interest on the unpaid balance at the rate established by the

Department of the Treasury pursuant to Section 107(a) of CERCLA,

42 U.S.C. § 9607(a). The interest shall begin to accrue 30 days

after the effective date of this Consent Decree. In addition,

Settling Defendants shall, jointly and severally, pay a six

percent (6%) per annum penalty charge, if Settling Defendants

have not paid the full amount within ninety (90) days after the

payment is due. Payments made under this paragraph shall be in

49

addition to such other remedies or sanctions available to

Plaintiffs by virtue of Settling Defendants' failure to make

timely payments under this Section.

XIX.

INDEMNIFICATION AND INSURANCE

52. The United States and the State do not assume any

liability by entering into this agreement or by virtue of any

designation of Settling Defendants as EPA's authorized

representatives, if such occurs, under Section 104(e) of CERCLA.

53. Settling Defendants shall indemnify and save and hold

harmless the United States, the State, and their officials,

agents, employees, contractors, and representatives from any and

all claims or causes of action or other costs incurred by the

United States or the State including, but not limited to

attorneys fees and other expenses of litigation and settlement

arising from or on account of acts or omissions of Settling

Defendants, their officers, employees, agents, contractors,

subcontractors, and any persons acting on their behalf or under

their control, in carrying out activities pursuant to this

consent Decree, including any claims arising from any designation

of the Settling Defendants as EPA's authorized representatives

under Section 104(e) of CERCLA. Provided, however, that the

Settling Defendants shall not be required to indemnify the United

States or the State and their officials, agents, employees,

contractors and representatives for any costs or damages

resulting from actions performed in an non-negligent manner at

50

the express direction of the United States, which actions

Settling Defendants have not themselves proposed. 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 Defendants in

carrying out activities pursuant to this Consent Decree. Neither

Settling Defendants nor any such contractor shall be considered

an agent of the United States or the State.

54. Settling Defendants waive any claims or causes of

actions against and shall indemnify and hold harmless the United

States or the State, and their officials, agents, employees,

contractors, subcontractors and representatives for damages or

reimbursement, or set-off of any payments made or to be made to

the United States or the State, arising from or on account of any

contract, agreement, or arrangement between any one or more of

Settling Defendants and any person for performance of work on or

relating to the Site, including claims on account of construction

delays.

55. Prior to commencing any on-site work required under

this Consent Decree, Settling Defendants shall secure, and shall

maintain, or shall have their contractors maintain for the

duration of this Consent Decree comprehensive general liability

and automobile insurance with limits of $5 million, combined

single limit, naming as insured the United States and the State.

In addition, for the duration of this Consent Decree, Settling

Defendants shall satisfy, or shall ensure that their contractors

or subcontractors satisfy, all applicable laws and regulations

51

regarding the provision of workers' compensation insurance for

all persons performing work on behalf of Settling Defendants in

furtherance of this Consent Decree. Prior to commencement of any

on-site work under this Consent Decree, Settling Defendants shall

provide to EPA and the State certificates of such insurance and a

copy of each insurance policy. Settling Defendants shall, upon

the request of EPA or the State, resubmit such certificates and

copies of policies each year on the anniversary of the effective

date of this Consent Decree. If Settling Defendants demonstrate

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 Defendants need provide only that portion of the

insurance described above which is not maintained by the

contractor or subcontractor.

XX.

FORCE MAJEURE

56. "Force Majeure" is defined for the purposes of this

Consent Decree as an event arising from causes beyond the control

of Settling Defendants and of any entity controlled by Settling

Defendants, including their contractors and subcontractors, which

delays or prevents the performance of any obligation under this

Consent Decree despite Settling Defendants' best efforts to avoid

the delay. The requirement that the Settling Defendants exercise

"best efforts to avoid the delay" includes using best efforts to

52

___. ._ f

anticipate any potential Force Majeure event and best efforts to

address the effects of any potential Force Majeure event (i) as

it is occurring and (ii) following the potential Force Majeure

event, such that the delay is minimized to the greatest extent

possible. "Force Majeure" does not include unanticipated or

increased costs, changed financial circumstances, or non-

attainment of the Performance Standards and requirements set

forth in Section VI hereof or in the SOW.

57. When circumstances occur which may reasonably indicate

to Settling Defendants that a delay may occur or prevent the

attainment of any obligation of the Consent Decree (other than

the attainment of the groundwater or soil Performance Standards),

whether or not caused by a Force Majeure event, Settling

Defendants shall orally notify the EPA RPM and the State Project

Coordinator of the circumstances within forty-eight (48) hours

after Settling Defendants first knew or should have known of such

circumstances. If the EPA RPM is unavailable, Settling

Defendants shall notify the Director of the Waste Management

Division, EPA Region I. Within ten (10) working days thereafter,

Settling Defendants shall supply to Plaintiffs in writing the