SDMS Document ID

1055083

THOMAS L. SANSONETTI

Assistant Attorney General

Environment and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

ROBERT R. HOMIAK

Environmental Enforcement Section

U.S. Department of Justice

999 18th Street, Suite 945, North Tower

Denver, CO 80202-2449

Telephone: (303)312-7353

Facsimile: (303)312-7331

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

THE UNITED STATES OF AMERICA,

Plaintiff,

v.

LITTLESON, INC., a Delaware corporation;

MID VALE CITY CORPORATION, a municipal

corporation and political subdivision of the State

of Utah; and UNION PACIFIC RAILROAD

COMPANY, a Delaware corporation,

Defendants.

RD/RA CONSENT DECREE

Civil No. 2:04CV_C654lM_
TABLE OF CONTENTS

I. BACKGROUND 1

II. JURISDICTION 3

III. PARTIES BOUND 3

IV. DEFINITIONS 4

V. GENERAL PROVISIONS 9

VI. PERFORMANCE OF THE LITTLESON WORK 11

VII. REMEDY REVIEW 14

VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS 14

IX. ACCESS, O&M, AND INSTITUTIONAL CONTROLS 16

X. REPORTING REQUIREMENTS 19

XI. EPA APPROVAL OF DELIVERABLES 21

Xn. PROJECT COORDINATORS 21

XIII. ASSURANCE OF ABILITY TO COMPLETE LITTLESON WORK 22

XIV. COMPLETION OF MILESTONE WORK 23

XV. EMERGENCY RESPONSE 25

XVI. PAYMENTS FOR RESPONSE COSTS 26

XVII. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS 27

XVIII. REIMBURSEMENT OF RESPONSE COSTS 31

XIX. INDEMNIFICATION AND INSURANCE 32

XX. FORCE MAJEURE 33

XXI. DISPUTE RESOLUTION 34

XXII. STIPULATED PENALTIES 37

XXIII. COVENANTS BY THE UNITED STATES 39

XXIV. COVENANTS BY SETTLING DEFENDANTS AND SETTLING FEDERAL

AGENCIES 44

XXV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION 46

XXVI. ACCESS TO INFORMATION 47

XXVII. RETENTION OF RECORDS 48

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XXVIII. NOTICES AND SUBMISSIONS 50

XXIX. EFFECTIVE DATE 52

XXX. RETENTION OF JURISDICTION 52

XXXI. APPENDICES 52

XXXII. COMMUNITY RELATIONS 53

XXXIII. MODIFICATION 53

XXXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 53

XXXV. SIGNATORIES/SERVICE 54

XXXVI. FINAL JUDGMENT 54

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I. BACKGROUND

A. Defendant Littleson, Inc. ("Littleson") filed a complaint in the matter of Littleson,

Inc. v. Metals Reserve Co. et al. Civil No. 2:99CV0757ST (the "Littleson

Litigation") against the United States and Metals Reserve Company, a nowdefunct federal corporation (collectively the "Settling Federal Agencies"), as well

as the Union Pacific Railroad, alleging that the Settling Federal Agencies and

Union Pacific Railroad are liable for contribution pursuant to Section 113(f)(l) of

the Comprehensive Environmental Response, Compensation, and Liability Act

("CERCLA"), 42 U.S.C. §§ 9613(f)(l), and further seeking a declaratory

. judgment that Littleson is entitled to a credit against its liability to the United

States from the amounts the United States has recovered in settlements with other

parties.

B. The United States of America ("United States"), on behalf of the Administrator of

the United States Environmental Protection Agency ("EPA"), filed a complaint in

the above-referenced action against Littleson, Inc., Union Pacific Railroad

Company, and Midvale City alleging that each is a liable party pursuant to

Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607. The United

States in its pleading seeks, inter alia, compensation for its past and future

response costs associated with the Site. The United States intends to file a motion

to consolidate this action with the Littleson Litigation.

C. In accordance with the National Contingency Plan, EPA notified the Utah

Department of Environmental Quality (the "State") of negotiations with

potentially responsible parties regarding the implementation of the remedial

design and remedial action 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.

D. In accordance with Section 122(j)(l) of CERCLA, 42 U.S.C. § 96220)(1), EPA

notified the United States Fish and Wildlife Service ("USFWS") on September

22, 2000 and the State on September 22, 2000 (collectively the "Trustees") of

negotiations with potentially responsible parties regarding the release of

hazardous substances that may have resulted in injury to the natural resources

under Federal trusteeship and encouraged the Trustees to participate in the

negotiation of this Consent Decree.

E. The Settling Defendants that have entered into this Consent Decree deny and do

not admit any liability arising out of the transactions or occurrences alleged in the

pleadings, nor do they acknowledge that the release or threatened release of

hazardous substance(s) at or from the Site constitutes an imminent or substantial

endangerment to the public health or welfare or the environment. Further, the

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Settling Federal Agencies deny and do not admit any liability arising out of the

transactions or occurrences alleged in any claim asserted by Littleson.

F. Beginning in the early 1980s, the Site has been under investigation by EPA, the

State, and others. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA

placed the Site on the National Priorities List, set forth at 40 C.F.R. Part 300, by

publication in the Federal Register on February 11, 1991, 55 Fed. Reg. 5598.

G. On April 28, 1995, the Regional Administrator, EPA Region 8, issued a Record of

Decision for the OU1 portion of the Site. Response actions as required by the

OU1 ROD were initiated in 1996 and construction completion was achieved in

1998.

H. In April and May of 2002, EPA, pursuant to 40 C.F.R. § 300.430, issued three

Final Focused Feasibility Study reports for the Site, each discussing one of the

three contaminated media found at the Site (Groundwater, Slag, and MixedSmelter Wastes).

I. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice of

the completion of the FS reports and of the Proposed Plan for remedial action on

May 20, 2002, 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 and conducted a public meeting on June 13, 2002 in

Midvale, Utah. A copy of the transcript of the public meeting is available as part

of the administrative record upon which the Regional Administrator based the

selection of the response action.

J. The decision by EPA on the remedial action to be implemented for the OU2

portion of the Site is embodied in a final Record of Decision for OU2 ("OU2

ROD"), executed by EPA on October 29, 2002, to which the State gave its

concurrence on October 31, 2002. The OU2 ROD includes EPA's explanation for

any significant differences between the final plan and the proposed plan as well as

a responsiveness summary to the public comments.

K. Notice of the final plan was published in accordance with Section 117(b) of

CERCLA, 42 U.S.C. § 9617(b).

L. Based on the information presently available to EPA, EPA believes that the

Littleson Work (as defined herein) will be properly and promptly conducted by

Littleson if conducted in accordance with the requirements of this Consent Decree

and its appendices.

M. Based on information presently available to EPA, EPA believes that with

necessary funding provided by EPA, Midvale City will properly and promptly

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implement and enforce the Institutional Controls in accordance with the

requirements of this Consent Decree and the Cooperative Agreement.

N. Solely for the purposes of Section 113(j) of CERCLA 42 U.S.C. § 9613(j), the

remedial action selected by the OU2 ROD shall constitute a response action taken

or ordered by the President.

O. The Parties recognize, and the Court by entering this Consent Decree finds, that

this Consent Decree has been negotiated by the Parties in good faith and that

implementation of this Consent Decree will expedite the cleanup of the Site and

will avoid prolonged, costly, uncertain, and complicated litigation between the

Parties, and that this Consent Decree is fair, reasonable, and in the public interest.

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

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§

1331, 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has personal

jurisdiction over the Settling Defendants. Solely for the purposes of this Consent Decree

and the underlying complaints, the Settling Defendants waive all objections and defenses

they may have as to jurisdiction of the Court or to venue in this District. Settling

Defendants shall not challenge the terms of this Consent Decree or this Court's

jurisdiction to enter and enforce this Consent Decree.

III. PARTIES BOUND

2. This Consent Decree applies to, is binding upon, and inures to the benefit of, the United

States and the Settling Defendants. Any change in ownership or corporate status of the

Settling Defendants, including, but not limited to, any transfer of assets, including real or

personal property, shall not alter their respective responsibilities under this Consent

Decree, except as specifically provided herein.

3. Littleson shall provide a copy of this Consent Decree to the Supervising Contractor and

make available to other contractors and subcontractors hired to perform the Littleson

Work required by this Consent Decree and to each person representing Littleson with

respect to the Site or the Littleson Work and shall condition all contracts entered into

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

Consent Decree. Littleson or its contractors shall provide written notice of the Consent

Decree to all subcontractors hired to perform any portion of the Littleson Work required

by this Consent Decree. Littleson shall nonetheless be responsible for ensuring, to the

extent allowed by law, that its contractors and subcontractors perform the Littleson Work

contemplated herein in accordance with 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 Littleson within the meaning of Section

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107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3). Littleson shall also provide a copy of

this Consent Decree to any Littleson Work Successor, as defined herein.

IV. DEFINITIONS

4. Unless otherwise expressly provided herein, 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 in the appendices attached hereto and

incorporated hereunder, the following definitions shall apply:

"Article" shall mean a portion of this Consent Decree identified by a Roman numeral.

"Category I," "Category II," "Category III," and "Category IV" materials shall have the

same meanings as set forth in the OU2 ROD.

"CERCLA" shallmean the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, as amended, 42 U.S.C. §§ 9601, etseq.

"Consent Decree" shall mean this Decree and all appendices attached hereto (listed in

Article XXXI. APPENDICES). In the event of conflict between this Consent Decree

and any appendix, this Consent Decree shall control.

"Construction Work" shall mean Work Milestones 3.3 through 3.10 (as defined in the RD

Work Plan).

"Cooperative Agreement" shall mean a Support Agency Cooperative Agreement or

similar funding arrangement between Midvale City and EPA whereby and pursuant to

which EPA provides Midvale City the funding necessary to implement and enforce the

Institutional Controls.

"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 State or Federal holiday. In

computing any period of time under this Consent Decree, where the last day would fall

on a Saturday, Sunday, or State or Federal holiday, the period shall run until the close of

business of the next Working Day.

"Disbursement Request" shall mean the application Littleson will provide to EPA as a

condition for receiving reimbursement as provided in Article XVII. DISBURSEMENT

OF SPECIAL ACCOUNT FUNDS below. Each Disbursement Request shall include: a

cover letter, an invoice, a copy of the Work Milestone Payment Schedule, and a copy of

the approved Inspection Checklist(s) applicable to the Work Milestone(s). The cover

letter will address verification issues associated with Littleson's satisfactory completion

of the applicable Work Milestone(s) and a financial certification. The invoice shall

specify the total amount due to Littleson for the completion of the Work Milestone(s),

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provide a description of services rendered for the Work Milestone(s), and list the

documents reviewed in support of the Disbursement Request.

"Effective Date" shall be the effective date of this Consent Decree as provided in

Paragraph 117.

"EPA" shall mean the United States Environmental Protection Agency and any successor

departments or agencies of the United States.

"Future Response Costs" shall mean all costs, including, but not limited to, direct and

indirect costs (including oversight costs) concerning or in any way relating to the Site

incurred by the United States after the Effective Date.

"Groundwater O&M" shall mean the implementation of the operation and maintenance

plan for groundwater wells (and related activities) to be developed by EPA as part of the

remedial design for the groundwater remedial alternative adopted in the OU2 ROD.

"Inspection Checklists" shall mean the Work Milestone Completion Inspection

Checklists as defined in the RD Work Plan. The Inspection Checklists are intended to

provide a detailed, task-specific inspection format to formally document the completion

of each Work Milestone.

"Interest," shall mean interest at the rate specified for interest on investments of the EPA

Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually

on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of

interest shall be the rate in effect at the time the interest accrues. The rate of interest is

subject to change on October 1 of each year.

"Interest Earned" shall mean interest earned on amounts in the Midvale Slag

Disbursement Special Account, which shall be computed monthly at a rate based on the

annual return on investments of the Hazardous Substance Superfund. The applicable rate

of interest shall be the rate in effect at the time the interest accrues.

"Institutional Controls" shall mean those regulations, requirements, duties, and controls

developed, implemented, and enforced in accordance with the OU1 and OU2 Institutional

Control Process Plans attached hereto as Appendix J and Appendix K, respectively.

"Littleson" shall mean Littleson, Inc., a Delaware corporation, its successors, and assigns.

"Littleson Work" means the Milestone Work and the obligations required by Article

XXVII. RETENTION OF RECORDS or Article IX. ACCESS, O&M, AND

INSTITUTIONAL CONTROLS of this Consent Decree.

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"Littleson Work Successor" shall mean any person or entity that EPA approves pursuant

to Paragraph 9(c) to assume any or all of Littleson's obligations to implement all or any

part of the Milestone Work under this Consent Decree.

"Midvale City" shall mean the Midvale City Corporation, a municipal corporation and

political subdivision of the state of Utah.

"Midvale Slag Special Account" shall mean the "EPA Hazardous Substance Superfund,

Special Account Number 0871," associated with EPA Site/Spill Identification Number

0871, and DOJ Case Number 90-11-3-1194/1.

"Midvale Slag Disbursement Special Account" shall mean the special account established

for the Site pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. §9622(b)(3), and this

Consent Decree.

"Milestone Work" means all activities necessary to complete the Work Milestones.

"MRRC" means Mining Remedial Recovery Company, Inc., the owner of approximately

11 acres located in the southeast area of OU2.

"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous

Substances Pollution Contingency Plan promulgated pursuant to Section 105 of .

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

thereto.

"Operation and Maintenance" or "O&M" shall mean all activities required to maintain

the effectiveness of the Milestone Work, as required under the Operation and

Maintenance Plan approved or developed by EPA pursuant to this Consent Decree and

the RD Work Plan. For purposes of this Consent Decree, O&M shall not include

activities required to maintain the effectiveness of the Milestone Work on portions of the

Site not owned by Littleson (including but not limited to properties owned or operated by

MRRC, Utah Transit Authority and UPRR) as of the Effective Date.

"Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral.

"Parties" shall mean the United States, Littleson, UPRR, and Midvale City.

"Past Response Costs" shall mean all costs, including, but not limited to, direct and

indirect costs (including oversight costs) that the United States paid at or in connection

with the Site prior to the Effective Date, plus Interest on all such costs which has accrued

pursuant to 42 U.S.C. § 9607(a) through such date.

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

seq. (also known as the Resource Conservation and Recovery Act).

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"GUI Record of Decision" or "OU1 ROD" shall mean the EPA Record of Decision

relating to the Midvale Slag Site signed on April 28, 1995 by the Regional Administrator,

EPA Region 8, and all attachments thereto, as well as any Explanations of Significant

Difference or modifications to the OU1 ROD as of the Effective Date. The OU1 ROD is

attached as Appendix A-l.

"OU2 Record of Decision" or "OU2 ROD" shall mean the EPA Record of Decision

relating to the Midvale Slag Site signed on October 29, 2002 by the Regional

Administrator, EPA Region 8, and all attachments thereto, as well as any Explanations of

Significant Difference or modifications to the OU2 ROD as of the Effective Date. The

OU2 ROD is attached as Appendix A-2.

"Remedial Action" shall mean those activities to be undertaken by Littleson, EPA,

UDEQ, Midvale City, or any other entity to implement the OU1 ROD or the OU2 ROD.

"Remedial Action Work Plan" or "RA Work Plan" shall mean the document as defined in

Paragraph 11 hereof.

"Remedial Design" shall mean those activities to be undertaken by Littleson to develop

the final plans and specifications relating to the Milestone Work.

"Remedial Design Work Plan" or "RD Work Plan" shall mean the document developed

pursuant to Paragraph 11 of this Consent Decree and attached hereto as Appendix B.

"Settling Defendants" shall mean Littleson, UPRR, and Midvale City.

"Settling Federal Agencies" shall mean those departments, agencies, and

instrumentalities of the United States identified in Appendix F, which are resolving any

claims which have been or could be asserted against them with regard to this Site as

provided in this Consent Decree.

"Site" shall mean the Midvale Slag Superfund Site, located approximately 12 miles south

of Salt Lake City, Utah, in Midvale City, Murray, and West Jordan, Utah. The Site is

bounded approximately by 7800 South Street on the South, the Jordan River on the west,

6400 South Street on the north, 700 West Street on the northeast and east, and Holden

Street on the southeast. The Site has an area of approximately 446 acres and is divided

into two operable units, Midvale Slag Operable Unit No. 1 (OU1) and Midvale Slag

Operable Unit 2 (OU2). OU2 comprises the southern approximately 180 acres of the Site

and is the subject of this Consent Decree. A fence in line with 7200 South Street and just

north of the smelter slag deposits defines the boundary between OU1 and OU2. Included

within OU2 are the Silver Refinery Area, located in the southeast portion of OU2, and the

Butterfield Lumber property, located west of Holden Street and south of the UPRR

Property. Remedial action was previously completed on the Butterfield Lumber portion

of OU2 and, therefore, no additional response actions will be undertaken as to that

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portion of the Site under this Consent Decree. The general physical features of the Site

are presented on Figure 1, attached hereto as Appendix C.

"State" and "UDEQ" shall mean the Utah Department of Environmental Quality and any

successor or subordinate departments or agencies of the State.

"Supervising Contractor" shall mean the principal contractor retained by Littleson to

supervise and direct the implementation of the Milestone Work under this Consent

Decree.

"United States" shall mean the United States of America, including all of its departments,

agencies, and instrumentalities, which includes without limitation EPA, the Settling

Federal Agencies, and any natural resource trustee.

"UPRR" shall mean the Union Pacific Railroad Company, a Delaware corporation, and

its officers, directors, predecessors, successors, and assigns.

"UPRR O&M" shall mean the performance of necessary maintenance with respect to the

at grade public railroad crossing for a new public road that may be installed through the

UPRR Property after completion of the Littleson Work as required by Utah law, and the

coordination of access rights and track protection for activities related to the performance

of the Remedial Action within the UPRR Property.

"UPRR Property" shall mean that parcel of real property more particularly described in

Appendix I hereto.

"Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of

CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33),

42 U.S.C. § 9601(33); and (3) any "solid waste" under Section 1004(27) of RCRA, 42

U.S.C. § 6903(27).

"Work Milestones" refer to specific remedial design and remedial action work tasks as

defined in the RD Work Plan.

"Work Milestone Areas" means the geographic areas defined in the RD Work Plan and

depicted in Figure 3 to the RD Work Plan.

"Work Milestone Payment Schedule" or "WMPS" refers to Table 1 attached to the RD

Work Plan. The WMPS identifies the lump sum amount EPA agrees to pay Littleson

from the Midvale Slag Disbursement Special Account upon satisfactory completion of

each Work Milestone, as provided in Article XVII. DISBURSEMENT OF SPECIAL

ACCOUNT FUNDS of this Consent Decree.
V. GENERAL PROVISIONS

5. Objectives of the Parties. The objectives of the Parties in entering into this Consent

Decree are to:

a) resolve the claims of the United States which have been alleged in the Complaint

against Littleson, Midvale City, and UPRR with regard to the Site, as provided in

this Consent Decree;

b) protect public health or welfare or the environment at the Site by the design and

implementation of the Littleson Work. The Littleson Work is to be financed by

Littleson and funds from the Midvale Slag Disbursement Special Account in

accordance with Article XVII. DISBURSEMENT OF SPECIAL ACCOUNT

FUNDS;

c) resolve the claims of Settling Defendants which have or could have been asserted

against the United States with regard to the Site as provided in this Consent

Decree;

d) provide for the implementation and enforcement of Institutional Controls by

Midvale City (in accordance with and subject to this Consent Decree and the

Cooperative Agreement); and

e) provide for access from, and the performance of the UPRR O&M work by,

UPRR.

6. Commitment by Littleson and the Settling Federal Agencies. Littleson shall finance

(subject to Article XVII. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS) and

perform the Littleson Work in accordance with this Consent Decree, the OU1 and OU2

RODs, the RD Work Plan and other plans, standards, specifications, and schedules set

forth herein or developed by Littleson and approved by EPA pursuant to this Consent

Decree. The Settling Federal Agencies shall reimburse the EPA Hazardous Substance

Superfund for Past Response Costs and Future Response Costs as provided in this

Consent Decree. The total amount to be paid by Settling Federal Agencies shall be

deposited in the Midvale Slag Special Account within the EPA Hazardous Substance

Superfund to be retained and used to conduct or finance response actions at or in

connection with the Site, or, after completion of remediation, to be transferred by EPA to

the Hazardous Substances Superfund.

7. Compliance With Applicable Law. All activities undertaken by Littleson pursuant to this

Consent Decree shall be performed in accordance with the requirements of all applicable

federal, state, and local laws and regulations. Littleson must also comply with all

applicable or relevant and appropriate requirements of all federal and state environmental

laws as set forth in the OU1 and OU2 RODs and the RD Work Plan. The activities

conducted pursuant to this Consent Decree, if approved by EPA pursuant to Article XI.

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EPA APPROVAL OF DELIVERABLES, shall be deemed to be consistent with the NCP

and applicable federal, state, and local laws and regulations.

8. Permits.

a) As provided in Section 121(e) of CERCLA, 42 U.S.C. § 9621(e), and Section

300.400(e) of the NCP, no permit shall be required for any portion of the Littleson

Work conducted entirely on-Site (i.e., within the areal extent of contamination or

in very close proximity to the contamination and necessary for implementation of

the Littleson Work). Where any portion of the Littleson Work that is not on-site

requires a federal, state, or local permit or approval, Littleson shall submit timely

and complete applications and take all other actions necessary to obtain all such

permits or approvals.

b) Littleson may seek relief for any delay in the performance of the Littleson Work

resulting from a failure to obtain, or a delay in obtaining, any permit required for

the Littleson Work pursuant to Article XX. FORCE MAJEURE of this Consent

Decree.

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.

a) Within thirty (30) days of the Effective Date, Littleson will record a Notice in

substantially the same form as the document attached hereto as Appendix D. The

Notice will be filed with the Recorder's Office, Salt Lake County, State of Utah.

Littleson shall provide EPA with a certified copy of the recorded Notice within

thirty (30) days of recording such Notice.

b) Within thirty (30) days of the Effective Date, UPRR will record a Notice in

substantially the same form as the document attached hereto as Appendix E. The

Notice will be filed with the Recorder's Office, Salt Lake County, State of Utah.

UPRR shall provide EPA with a certified copy of the recorded Notice within

thirty (30) days of recording such Notice.

c) In the event that any person or entity desires to assume all or any portion of the

Littleson Work ("Littleson Work Successor"), Littleson shall have the right to

request that EPA accept such Littleson Work Successor's agreement to be bound

by and to perform any such obligations under this Consent Decree. The Littleson

Work Successor shall comply with the provisions of this Consent Decree,

including Paragraph 1 l(c), below. If EPA approves of the Littleson Work

Successor's assumption of all or any portion of the Littleson Work, then upon the

Littleson Work Successor's execution and delivery of an agreement providing for

the assumption of such obligations, in a form acceptable to EPA and Littleson, the

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covenant not to sue as provided in Article XXIII. COVENANTS BY THE

UNITED STATES and contribution protection as provided in Article XXV.

EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION shall

immediately become effective as to Littleson as to the specific aspect of the

Littleson Work assumed by the Littleson Work Successor. EPA will not

unreasonably withhold its consent to the assumption by any Littleson Work

Successor of all or any part of the Littleson Work; provided that the Littleson

Work Successor is able to demonstrate to EPA's satisfaction that it is capable of

performing the portion of the Littleson Work to be assumed. Upon satisfactory

completion of all aspects of the Littleson Work assumed by the Littleson Work

Successor, the covenant not to sue as provided in Article XXIII. COVENANTS

BY THE UNITED STATES, and the contribution protection, as provided in

Article XXV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION

shall become effective as to the Littleson Work Successor and the Littleson Work

assumed and completed. Nothing in this Paragraph is intended to limit the rights,

duties, and remedies applicable to and inuring to the benefit of any successor or

assign of Littleson who does not fall within the definition of a "Littleson Work

Successor."

VI. PERFORMANCE OF THE LITTLESON WORK

10. Selection of Supervising Contractor.

a) All aspects of the Milestone Work pursuant to Articles VI. PERFORMANCE OF

THE LITTLESON WORK, VII. REMEDY REVIEW, VIII. QUALITY

ASSURANCE, SAMPLING, AND DATA ANALYSIS, and XV.

EMERGENCY RESPONSE of this Consent Decree shall be under the direction

and supervision of the Supervising Contractor. EPA hereby approves of

ENTACT SERVICES, LLC as the Supervising Contractor.

b) If at any time after the Effective Date, Littleson proposes to change a Supervising

Contractor, Littleson shall give notice of the proposal to EPA and must obtain an

authorization to proceed from EPA before the new Supervising Contractor

performs, directs, or supervises any Milestone Work under this Consent Decree.

Approval of a new Supervising Contractor shall not be unreasonably withheld. If

EPA and Littleson are not able to agree as to a proposed Supervising Contractor

and the failure to agree prevents Littleson from meeting one or more deadlines in

this Consent Decree or in a plan approved by EPA pursuant to this Consent

Decree, Littleson may seek relief under the provisions of Article XX. FORCE

MAJEURE of this Consent Decree.

11. Work Plans and Deliverables.

a) Remedial Design Work Plan. The RD Work Plan, including all of its separate

attachments, is hereby approved and accepted by EPA. Any action or

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requirement in the RD Work Plan (including its attachments) may be modified by

mutual agreement between EPA and Littleson without modifying this Consent

Decree. The RD Work Plan is incorporated into and is enforceable under this

Consent Decree.

b) Remedial Action Work Plan. Remedial design and remedial action deliverables

associated with the Work Milestones, including a submission and review

schedule, are described in Section 5 of the RD Work Plan. After approval of the

Remedial Design and Remedial Action Work Plan by EPA, Littleson shall

implement the activities required under the Remedial Action Work Plan.

Littleson shall submit to EPA all plans, submittals, or other deliverables required

under the approved Remedial Action Work Plan in accordance with the approved

schedule for review and approval pursuant to Article XI. EPA APPROVAL OF

DELIVERABLES. Unless otherwise directed by EPA, Littleson shall not

commence physical activities at the Site prior to receipt of written Notice to

Proceed from EPA.

c) Operation and Maintenance Plan. An Operation and Maintenance Plan for the

final soil cover system and associated stormwater management features will be

prepared as part of the RA Work Plan. O&M activities conducted pursuant to the

O&M Plan during the first year after completion of Remedial Action is defined in

the RD Work Plan as the "O&M Warranty Period" and will be performed as

provided in the RD Work Plan. O&M activities conducted pursuant to the O&M

Plan after completion of the O&M Warranty Period will be performed as provided

below in Paragraph 21(c).

d) Prior to EPA approving a Littleson Work Successor to perform all or part of the

remaining Milestone Work pursuant to Paragraph 9(c) of this Consent Decree, the

Littleson Work Successor shall submit and obtain EPA's approval of a modified

RD and RA Work Plan (and other deliverables, as applicable), pursuant to the

procedure set forth in this Paragraph 11 and Article XI. EPA APPROVAL OF

DELIVERABLES sufficient to define the Littleson Work Successor's obligations

and responsibilities with regard to that portion of the Littleson Work it seeks to

perform and for which it seeks to assume responsibility.

12. Modifications to the RD Work Plan. Remedial Design, or RA Work Plan.

a) No modification of the final RD Work Plan, or to the Remedial Design or the RA

Work Plan (once approved by EPA as provided in this Consent Decree), may be

required by EPA unless such modification is consistent with the scope of the

remedy selected in the OU1 ROD or OU2 ROD and the Milestone Work as set

forth in the RD Work Plan. Any such modification shall be in writing or by oral

request with timely written confirmation.

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b) If Littleson objects to any modification to the RD Work Plan, Remedial Design,

or RA Work Plan required by EPA under this paragraph, Littleson may seek

dispute resolution pursuant to Article XXI. DISPUTE RESOLUTION. The RD

Work Plan, Remedial Design, or RA Work Plan shall be modified in accordance

with final resolution of the dispute.

c) If Littleson desires to deviate from the approved final RD Work Plan, the

Remedial Design, the RA Work Plan, or any schedule or plan relating thereto,

Littleson may not proceed with the requested deviation until receiving oral or

written approval from the EPA Project Coordinator, which shall not be

unreasonably withheld. EPA's Project Coordinator shall provide written

confirmation of any oral approval within five (5) days of granting such oral

approval.

d) Nothing in this Paragraph shall be construed to limit EPA's authority to require

performance of further actions as otherwise provided in this Consent Decree.

13. Off-site Shipments.

a) This paragraph 13(a) shall apply to all Waste Material as defined in this Consent

Decree and as further specified in the OU2 ROD. Littleson shall, prior to any offSite shipment of Waste Material from the Site to a waste management facility,

provide written notification to the appropriate state environmental official in the

receiving facility's state and to the EPA Project Coordinator of such shipment of

Waste Material. However, this notification requirement shall not apply to any

off-Site shipments when the total vplume of all such shipments will not exceed

ten (10) cubic yards.

i) Littleson shall include in the written notification the following

information, where available: (A) the name and location of the facility to

which the Waste Material is to be shipped; (B) the type and quantity of the

Waste Material to be shipped; (C) the expected schedule for the shipment

of the Waste Material; and (D) the method of transportation. Littleson

shall notify the state in which the planned receiving facility is located of

major changes in the shipment plan, such as a decision to ship the Waste

Material to another facility within the same state, or to a facility in another

state.

ii) The identity of the receiving facility and state will be determined by

Littleson. Littleson shall provide the information required by Paragraph

13(a) as soon as practicable but not less than thirty (30) days before the

Waste Material is shipped.

b) Before shipping any un-treated hazardous substances or pollutants or

contaminants from the Site (other than Category IV materials which are exempt

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from this requirement) to an off-site location, Littleson shall obtain EPA's

certification that the proposed receiving facility is operating in compliance with

the requirements of CERCLA Section 121(d)(3), 42 U.S.C. § 9621(d)(3) and 40

C.F.R. 300.440. With the exception of Category IV materials, Littleson shall only

send hazardous substances or pollutants or contaminants from the Site to an offsite facility that complies with the requirements of the statutory provision and

regulation cited in the preceding sentence.

c) EPA agrees that Category IV material may be beneficially reused, both on and off

Site, as provided in the OU2 ROD.

VII. REMEDY REVIEW

14. Periodic Review. EPA shall conduct any studies and investigations in order to determine

whether the Remedial Action is protective of human health and the environment at least

every five years as required by Section 121(c) of CERCLA, 42 U.S.C. § 962 l(c), and any

applicable regulations.

15. EPA Selection of Further Response Actions. If EPA determines, at any time, that the

Remedial Action is not protective of human health or the environment, EPA may select

further response actions for the Site in accordance with the requirements of CERCLA or

the NCP. EPA may not, however, require Littleson to undertake or perform any further

response actions with respect to the Site, except as provided in Paragraph 12 or in Article

XXIII. COVENANTS BY THE UNITED STATES. EPA may not require UPRR or

Midvale City to undertake or perform any further response actions with respect to the

Site, except as to those matters identified in Paragraph 93.

16. Opportunity To Comment. Littleson and, if required by Sections 113(k)(2) or 117 of

CERCLA, 42 U.S.C. § 96137(k)(2) or 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) of CERCLA, 42 U.S.C. § 9612(c), and

to submit written comments for the record during the comment period.

VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS

17. Littleson shall ensure that quality assurance, quality control, and chain of custody

procedures for all treatability, design, compliance and monitoring samples are performed

in accordance with "EPA Requirements for Quality Assurance Project Plans (QA/R5)"

(EPA/240/B-01/003, March 2001) "Guidance for Quality Assurance Project Plans

(QA/G-5)" (EPA/600/R-98/018, December, 2002), and subsequent amendments to such

guidelines upon notification by EPA to Littleson of such amendment. Amended

guidelines shall apply only to procedures conducted after such notification. Prior to the

commencement of any monitoring project under this Consent Decree, Littleson shall

submit to EPA for approval a Quality Assurance Project Plan ("QAPP") that is consistent

with the RD Work Plan, the NCP and applicable guidance documents. If relevant to the

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proceeding, the Parties agree that validated sampling data generated in accordance with

the QAPP(s) and reviewed and approved by EPA shall be admissible as evidence,

without objection, in any proceeding under this Consent Decree. Littleson shall allow

EPA personnel and its authorized representatives access at reasonable times to all

laboratories utilized by Littleson in implementing this Consent Decree. In addition,

Littleson shall take reasonable measures to ensure that such laboratories shall analyze all

samples submitted by EPA pursuant to the QAPP for quality assurance monitoring.

Littleson shall take reasonable steps to 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 which are

documented in the "Contract Lab Program Statement of Work for Inorganic Analysis,"

dated September 2002, and the "Contract Lab Program Statement of Work for Organic

Analysis," dated May 1999, and any amendments made thereto during the course of the

implementation of this Decree; however, upon approval by EPA, Littleson may use other

analytical methods which are as stringent as or more stringent than the CLP- approved

methods. Littleson shall take reasonable steps to ensure that all laboratories it uses for

analysis of samples taken pursuant to this Consent Decree participate in an EPA or EPA

equivalent QA/QC program. Littleson shall only use laboratories that have a documented

Quality System which 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), and "EPA

Requirements for Quality Management Plans (QA/R-2)," (EPA/240/B-01/002, March

2001) or equivalent documentation as determined by EPA. EPA may consider

laboratories accredited under the National Environmental Laboratory Accreditation

Program (NELAP) as meeting the Quality System requirements. Littleson shall take

reasonable steps to ensure that all field methodologies utilized in collecting samples for

subsequent analysis pursuant to this Decree will be conducted in accordance with the

procedures set forth in the QAPP approved by EPA.

18. Upon request, Littleson shall allow split or duplicate samples to be taken by EPA or its

authorized representatives. Littleson shall notify EPA not less than ten (10) days in

advance of any sample collection activity unless shorter notice is agreed to by EPA. In

addition, EPA shall have the right to take any additional samples that EPA deems

necessary. Upon request, EPA shall allow Littleson to take split or duplicate samples of

any samples it takes as part of EPA's oversight of Littleson's implementation of the

Littleson Work.

19. Littleson shall submit to EPA copies of the results of all sampling and/or tests or other

data obtained or generated by or on behalf of Littleson with respect to the Site and/or the

implementation of this Consent Decree unless EPA agrees otherwise.

20. Notwithstanding any provision of this Consent Decree, the United States hereby retains

all of its information gathering and inspection authorities and rights, including

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enforcement actions related thereto, under CERCLA, RCRA and any other applicable

statutes or regulations.

IX. ACCESS, O&M, AND INSTITUTIONAL CONTROLS

21. With respect to any real property within the Site that is owned or controlled by Littleson,

Littleson shall:

a) commencing on the date of lodging of this Consent Decree, permit the United

States, the State, Midvale City and their representatives, including EPA and its

contractors, to have access at all reasonable times to the Site, or such other

property, for the purpose of conducting any activity related to this Consent Decree

including, but not limited to, the following activities:

i) Monitoring the Remedial Action;

ii) Verifying any data or information submitted to the United States;

iii) Conducting investigations relating to contamination at or near the Site;

iv) Obtaining samples;

v) Assessing the need for, planning, or implementing additional response

actions at or near the Site;

vi) Assessing implementation of quality assurance and quality control

practices as defined in the approved Quality Assurance Project Plans;

vii) Implementing the Remedial Action pursuant to the conditions set forth in

Paragraph 97 of this Consent Decree;

viii) Inspecting and copying records, operating logs, contracts, or other

documents maintained or generated by Littleson or its agents, consistent

with Article XXVI. ACCESS TO INFORMATION;

ix) Assessing Littleson's compliance with this Consent Decree;

x) Assessing compliance with the Institutional Control Process Plans for

OU1 and OU2; and

xi) Determining 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, by or pursuant to this Consent Decree.

b) Commencing on the date of lodging of this Consent Decree, refrain from using

the Site, or such other real property as it may possess within the Site, in any

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manner that would interfere with or adversely affect the implementation, integrity,

or protectiveness of the remedial measures to be performed pursuant to this

Consent Decree or interfere with or adversely affect railroad operations or

maintenance of the UPRR Property.

c) Commencing on the expiration of the O&M Warranty Period (as defined in the

RD Work Plan), perform O&M with respect to the soil cover system to be

installed in OU2 until such time as redevelopment occurs on any given parcel of

property, whereupon the maintenance of the final covers will be governed by the

Institutional Control Process Plan for OU2.

d) Comply with and follow the Institutional Controls, to the extent they are

applicable to Littleson or its activities.

22. Restrictive Covenants.

a) Within thirty (30) days of the Effective Date, Littleson shall execute and record in

the Recorder's Office of Salt Lake County, State of Utah, an easement, running

with the land, in substantially the same form as the document attached hereto as

Appendix D that grants a right of access to the United States, the State, Midvale

City, and their representatives for the purpose of enforcing, in accordance with

their respective authorities, applicable Institutional Controls and conducting any

lawful activity related to this Consent Decree, including, but not limited to, those

activities listed in Paragraph 21 above.

b) At the time of subdivision (as defined by the Midvale City Municipal Code) of all

or any portion of the Site located within the boundaries of Midvale City, Littleson

or its successor shall execute and record in the Recorder's Office of Salt Lake

County, State of Utah, restrictive covenants, running with the land, that:

i) require future landowners to comply with applicable Institutional Controls

developed under the Institutional Control Process Plans, including,

without limitation, maintenance and repair of covers and barriers;

compliance with landscaping, excavation, irrigation, stormwater

management and erosion controls; compliance with imported fill

requirements; and prohibitions against disturbance of existing

groundwater wells or drilling new groundwater wells;

ii) create a Property Owners' Association for each Subdivision of the Site

where certain residential uses will occur (as described in the Institutional

Control Process Plans) with authority to enforce property owners'

compliance with the Institutional Control Process Plans and applicable

Institutional Controls and to oversee and maintain certain areas as defined

in the Institutional Control Process Plans;

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iii) grant a right to Midvale City to enforce Institutional Controls; and,

iv) grant to the United States, in accordance with its authority under this

Consent Decree, and to the State, in accordance with its authority to

enforce Institutional Controls in the form of restrictive covenants under

the Utah Environmental Institutional Control Act, Utah Code § 19-10-101

et seq., a right to enforce applicable Institutional Controls in the event

Midvale City fails to enforce such Institutional Controls. Nothing in this

Consent Decree is intended or shall be construed to alter or expand the

role of the State with respect to matters of municipal governance and land

use.

23. EPA hereby designates Littleson, Midvale City, the State and UPRR (including their

respective contractors, agents, successors and assigns) as persons entitled to access

pursuant to the terms and conditions of the Consent Decree between EPA and Sharon

Steel Corporation, the Consent Decree between EPA and Butterfield Lumber, and the

Prospective Purchaser Agreement between EPA and the Utah Transit Authority to the

extent necessary to perform any portion of the Littleson Work, to implement and enforce

the Institutional Controls, O&M, or UPRR O&M.

24. With respect to the UPRR Property, UPRR shall:

a) commencing on the Effective Date of this Consent Decree, provide the United

States, the State, Littleson, Midvale City and their representatives, including EPA

and its contractors, with access at all reasonable times to the UPRR Property as

necessary for the purpose of conducting any lawful activity related to this Consent

Decree including, but not limited to, those activities listed in Paragraph 21 (a) of

this Consent Decree; provided however, the entry and any work performed by

Littleson upon the UPRR Property will be subject to the terms and conditions of

the Contractor's Right of Entry Agreements (or other applicable agreements)

negotiated between Littleson and UPRR;

b) commencing on the Effective Date of this Consent Decree, refrain from using the

UPRR Property in any manner that would interfere with or adversely affect the

implementation, integrity, or protectiveness of the remedial measures to be

performed pursuant to this Consent Decree;

c) comply with and follow the Institutional Controls, to the extent they are

applicable to the UPRR Property or its activities and do not violate any federal or

state regulation or rule concerning maintenance and conditions of railroad rights

of way; and

d) commencing on the Effective Date of this Consent Decree, perform the applicable

UPRR O&M in coordination with the Littleson Work.

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25. The Institutional Controls applicable to the Site shall be developed as set forth in the

Institutional Control Process Plans for OU1 and OU2 attached hereto as Appendix J and

Appendix K, respectively. The Institutional Control Process Plans and the Institutional

Controls may be amended and modified from time to time in the manner provided under

the Institutional Control Process Plans without amending this Consent Decree.

26. EPA has determined that additional land or water use restrictions are needed to

implement the remedy selected in the OU2 ROD. Accordingly, Midvale City hereby

agrees to implement and enforce those Institutional Controls applicable to Midvale City

(as defined in the Cooperative Agreement) in accordance with and subject to this Consent

Decree and the Cooperative Agreement. EPA agrees to provide to Midvale City under

the Cooperative Agreement the funding necessary for Midvale City to implement and

enforce the Institutional Controls. Accordingly, Midvale City hereby agrees to

implement and enforce the Institutional Controls in accordance with and subject to this

Consent Decree and the Cooperative Agreement.

27. Notwithstanding any provision of this Consent Decree, the United States retains all of its

access authorities and rights, as well as all of its rights to require land/water use

restrictions, including enforcement authorities related thereto, under CERCLA, RCRA,

and any other applicable statute or regulations.

X. REPORTING REQUIREMENTS

28. In addition to any other requirement of this Consent Decree, Littleson shall submit to

EPA copies of written monthly progress reports by the tenth day of every month

following the lodging of this Consent Decree until Littleson obtains a Certification of

Construction Work Completion pursuant to Paragraph 49(b). After such notification,

Littleson shall provide quarterly reports to EPA until EPA notifies Littleson of

completion of Milestone Work pursuant to Paragraph 50. If requested by EPA, Littleson

shall also provide briefings for EPA to discuss the progress of the Littleson Work. The

progress reports shall include the following information:

a) a description of the actions which have been taken toward achieving compliance

with this Consent Decree during the previous month;

b) a summary of all results of sampling and tests and all other data received or

generated by Littleson or its contractors or agents in the previous month;

c) identification of all work plans, plans and other deliverables required by this

Consent Decree completed and submitted during the previous month;

d) a description of all actions, including, but not limited to, data collection and

implementation of work plans, which are scheduled for the next six weeks and

provide other information relating to the progress of construction, including, but

not limited to, critical path diagrams, Gantt charts and Pert charts;

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e) information regarding percentage of completion, unresolved delays encountered

or anticipated that may affect the future schedule for implementation of the

Littleson Work, and a description of efforts made to mitigate those delays or

anticipated delays;

f) any modifications to the work plans or other schedules that Littleson has proposed

to EPA or that have been approved by EPA; and

g) a description of all activities undertaken in support of the Community Relations

. Plan during the previous month and those to be undertaken in the next six weeks.

29. Littleson shall notify EPA of any material 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 (7) days prior to

the performance of the activity.

30. Upon the occurrence of any event during performance of the Littleson Work that

Littleson is required to report pursuant to Section 103 of CERCLA 42 U.S.C. § 9603 or

Section 304 of the Emergency Planning and Community Right-to-know Act (EPCRA),

42 U.S.C. § 1104, Littleson shall, within twenty-four (24) hours of Littleson's discovery

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 or Alternate EPA Project Coordinator is

available, the Emergency Response Section, Region 8, United States Environmental

Protection Agency. These reporting requirements are in addition to the reporting required

by CERCLA Section 103, 42 U.S.C. § 9603, or EPCRA Section 304, 42 U.S.C. § 1104.

31. Within twenty (20) days of the onset of such an event, Littleson shall furnish to EPA a

written report, signed by Littleson's Project Coordinator, summarizing 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, Littleson shall submit a report summarizing all

actions taken in response thereto.

32. Littleson shall submit copies of all plans, reports, and data required by the RD or RA

Work Plans or any other approved plans to EPA in accordance with the schedules set

forth in such plans. Upon request by EPA, Littleson shall submit in electronic form all

portions of any report or other deliverable Littleson is required to submit pursuant to the

provisions of this Consent Decree.

33. All reports and other documents submitted by Littleson to EPA (other than the monthly

progress reports referred to above) which purport to document Littleson's compliance

with the terms of this Consent Decree shall be signed by an authorized representative of

Littleson.

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XI. EPA APPROVAL OF DELIVERABLES

34. After review of any plan, report, or other item which is required to be submitted for

approval pursuant to this Consent Decree, EPA shall: (a) approve, in whole or in part, the

deliverable; (b) approve the deliverable upon specified conditions; (c) modify the

deliverable to cure the deficiencies; (d) disapprove, in whole or in part, the deliverable,

directing that Littleson modify the deliverable; or (e) any combination of the above.

35. Resubmission of Deliverables

a) If EPA disapproves (in whole or in part), modifies, or imposes a condition on any

deliverable or other submission, EPA shall provide Littleson with written notice

of the deficiency and shall provide Littleson with the right to cure the deficiency

or satisfy the condition. Upon receipt of such notice, Littleson shall, within thirty

(30) days (or such longer time as specified by EPA in such notice), correct the

deficiencies and resubmit the plan, report, or other item for approval. Any

stipulated penalties applicable to the submission, as provided in Article XXII.

STIPULATED PENALTIES, shall accrue during the thirty (30)-day period or

otherwise specified period but shall not be payable unless the resubmission is

disapproved or modified due to a material defect. Notwithstanding the receipt of

such notice, Littleson shall proceed, at the direction of EPA, to take any action

required by any non-deficient portion of the deliverable.

b) If EPA determines that Littleson submitted a deliverable with a material defect as

provided above, Littleson shall be deemed to have failed to submit an adequate

deliverable on a timely basis, unless Littleson invokes the dispute resolution

procedures set forth in Article XXI. DISPUTE RESOLUTION and EPA's

determination is overturned pursuant to that Article. If EPA's determination of

material defect is not overturned, stipulated penalties shall accrue for such

violation from the date on which the initial submission was originally required.

c) Littleson shall have the right to invoke the Dispute Resolution procedures set

forth in XXI. DISPUTE RESOLUTION with respect to EPA's disapproval,

imposition of conditions, or other modification of a deliverable.

36. All plans, reports, and other items required to be submitted to EPA under this Consent

Decree shall, upon approval or modification by EPA, be enforceable under this Consent

Decree. In the event EPA approves or modifies a portion of a plan, report, or other item

required to be submitted to EPA under this Consent Decree, the approved or modified

portion shall be enforceable under this Consent Decree.

XII. PROJECT COORDINATORS

37. EPA hereby designates Fran Costanzi as its Project Coordinator. Littleson hereby

designates, and EPA approves, Liz Scaggs of ENTACT Services, LLC, as its Project

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Coordinator. If a Project Coordinator initially designated is changed, the identity of the

successor will be given to the other Parties at least five (5) Working Days before the

changes occur, unless impracticable, but in no event later than the actual day the change

is made. Any replacement Project Coordinator for Littleson shall be subject to approval

by EPA and shall have the technical expertise sufficient to adequately oversee all aspects

of the Littleson Work. Littleson's Project Coordinator shall not be an attorney for

Littleson in this matter. Littleson's Project Coordinator may designate other

representatives, including other contractors, to serve as a Site representative for oversight

of performance of daily operations during remedial activities.

38. The United States may designate other representatives, including, but not limited to, EPA

employees and federal contractors and consultants, to observe and monitor the progress

of any activity undertaken pursuant to this Consent Decree. EPA's Project Coordinator

shall have the authority lawfully vested in a Remedial Project Manager (RPM) and an

On-Scene Coordinator (OSC) by the National Contingency Plan, 40 C.F.R. Part 300. In

addition, EPA's Project Coordinator shall have authority, consistent with the National

Contingency Plan, to halt any Littleson 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.

39. EPA's Project Coordinator and Littleson's Project Coordinator will meet (in person or by

telephone call), at a minimum, monthly.

XIII. ASSURANCE OF ABILITY TO COMPLETE LITTLESON WORK

40. Within thirty (30) days of the Effective Date, Littleson shall establish and maintain, either

directly or through its Supervising Contractor, financial security for $2,700,000 (Two

Million, Seven Hundred Thousand Dollars), representing the differential between the

amount available to Littleson pursuant to Article XVII. DISBURSEMENT OF

SPECIAL ACCOUNT FUNDS and the costs of the Milestone Work as estimated by

EPA. This financial security shall be an insurance policy in substantially the same form

as the document attached hereto as Appendix G.

41. In the case that any Littleson Work Successor assumes responsibility for any or all of the

Littleson Work, as provided in Paragraph 9(c), such financial assurance shall be in a form

and in an amount acceptable to EPA, consistent with the scope of the remaining work

assumed by such Littleson Work Successor, and shall be in one or more of the following

forms:

a) A performance bond or other insurance policy guaranteeing or insuring

completion of the Milestone Work naming EPA as an additional insured;

b) One or more irrevocable letters of credit;

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c) A trust fiind;

d) A guarantee to perform the Milestone Work by one or more parent corporations

or subsidiaries, or by one or more unrelated corporations that have a substantial

business relationship with the Littleson Work Successor; or

e) A demonstration that the Littleson Work Successor satisfies the requirements of

40C.F.R.Part264.143(f).

42. If any Littleson Work Successor seeks to demonstrate the ability to complete the

Littleson Work through a guarantee by a third party pursuant to Paragraph 41(d) of this

Consent Decree, such Littleson Work Successor shall demonstrate that the guarantor

satisfies the requirements of 40 C.F.R. Part 264.143(f). If such successor seeks to

demonstrate its ability to complete the Littleson Work by means of the financial test or

the corporate guarantee pursuant to Paragraph 41(d) or 41(e), it shall submit initially and

resubmit annually on the anniversary of the Effective Date sworn statements conveying

the information required by 40 C.F.R. Part 264.143(f). In the event that EPA determines

at any time that the financial assurances provided pursuant to this Article are inadequate,

such successor shall, within thirty (30) days of receipt of notice of EPA's determination,

obtain and present to EPA for approval one of the other forms of financial assurance

listed in Paragraph 41 of this Consent Decree. Such successor's inability to demonstrate

financial ability to complete the Littleson Work shall not excuse performance by

Littleson of any activities required under this Consent Decree.

43. Any Littleson Work Successor approved under Paragraph 9(c) to take over all or any

portion of the Littleson Work that has provided financial assurance pursuant to this

Article may change the form of financial assurance provided under this Article at any

time, upon notice to and approval by EPA, provided that the new form of assurance is in

substantially the same form as that described in Paragraph 41 and otherwise meets the

requirements of this Article. In the event of a dispute, the Littleson Work Successor may

change the form of the financial assurance only in accordance with the final

administrative or judicial decision resolving the dispute.

XIV. COMPLETION OF MILESTONE WORK

44. Work Milestones and Inspection Checklists. The Work Milestones provide a framework

whereby the Milestone Work can be defined, measured, and documented, including

confirming the periodic and cumulative progress of the Milestone Work. The Inspection

Checklists provide a task-specific format to formally document the completion of each

Work Milestone.

45. Field Inspections. EPA shall have the responsibility to certify when each Work

Milestone has been completed. It is anticipated that EPA will employ a combination of

oversight and field inspections to accomplish this certification process. Work Milestone

field inspections shall be conducted pursuant to a schedule agreed upon by EPA and

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Littleson. EPA and Littleson anticipate that EPA will be provided with at least ten (10)

Working Days notice before a field inspection. Reasonable accommodations and

adjustments to the field inspection schedule will be made during the course of Work

Milestone activities.

46. Inspection Checklists. During oversight leading up to the field inspections and during the

field inspections, it is anticipated that both Littleson and EPA will use the applicable

Inspection Checklist to confirm the completeness and accuracy of the work. If the EPA

representative determines that the Work Milestone has been completed, the Inspection

Checklist shall be so noted and executed by EPA and Littleson. The executed Inspection

Checklist shall constitute final certification of completion of the Work Milestone for all

purposes, including Article XVII. DISBURSEMENT OF SPECIAL ACCOUNT

FUNDS.

47. Notice of Supplemental Work. If, after completion of the field inspection, EPA

determines that the specified Work Milestone or any portion thereof has not been

completed in accordance with this Consent Decree, EPA will notify Littleson in writing

of the activities that must be undertaken by Littleson pursuant to this Consent Decree to

complete the Work Milestone. EPA will set forth in the notice a schedule for

performance of such activities consistent with the Consent Decree and the RA Work Plan

or require Littleson to submit a schedule to EPA for approval pursuant to Article XI.

EPA APPROVAL OF DELIVERABLES. Littleson 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

Article XXI. DISPUTE RESOLUTION. After the deficiency has been corrected or

otherwise resolved, a supplemental inspection will be scheduled, if necessary, within a

reasonable time. This process will then be repeated as necessary until the EPA is able to

certify that the Work Milestone has been completed.

48. Certification of satisfactory completion of any particular Work Milestone pursuant to

Paragraph 46 shall not affect Littleson's obligations under this Consent Decree with

respect to any other Work Milestone.

49. Completion of Construction Work.

a) When Littleson concludes that all Construction Work has been completed,

Littleson shall provide notice to EPA requesting that EPA schedule and conduct a

pre-final inspection. UPRR and Midvale City will also be invited to attend the

inspection. If, after the pre-final inspection, Littleson still believes that that the

Construction Work has been fully performed, Littleson shall submit a request for

Certification of Construction Work Completion, along with a written Remedial

Action Report by a registered professional engineer stating that the Construction

Work has been completed in full satisfaction of the requirements of this Consent

Decree. The Remedial Action Report shall contain the following statement,

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signed by a responsible corporate official of Littleson or Littleson's Project

Coordinator:

"To the best of my knowledge, after thorough investigation, I

certify that the information contained in or accompanying this

submission is true, accurate and complete. I am aware that there

are significant penalties for knowingly submitting false

information, including the possibility of fine and imprisonment."

b) If, after review of the Remedial Action report, EPA determines that the entirety of

the Construction Work has been completed in accordance with this Consent

Decree, EPA will immediately certify to Littleson that the Construction Work is

completed (a "Certification of Construction Work Completion").

c) If, after review of the Remedial Action Report, EPA determines that any portion

of the Construction Work has not been completed in accordance with this Consent

Decree, EPA will notify Littleson in writing of the activities that must be

undertaken by Littleson pursuant to this Consent Decree to complete the

Construction Work; provided, however, that EPA may only require Littleson to

perform such activities pursuant to this Paragraph to the extent that such activities

are consistent with the scope of the remedy selected in the OU1 ROD or OU2

ROD and the Milestone Work as set forth in the WMPS. EPA will set forth in the

notice a schedule for performance of such activities consistent with the Consent

Decree and the RA Work Plan or require Littleson to submit a schedule to EPA

for approval pursuant to Article XL EPA APPROVAL OF DELF/ERABLES.

Littleson shall perform 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 Article XXI. DISPUTE

RESOLUTION. After completion of such additional work, Littleson shall have

the right to invoke the procedure for obtaining certification of completion of the

Construction Work as provided in this paragraph.

50. Completion of Milestone Work. Within thirty (30) days after EPA's written certification

of completion of Work Milestones 3.11 and 3.12 (through the applicable Inspection

Checklists), EPA shall issue a written certification that all of the Milestone Work has

been completed in accordance with this Consent Decree.

XV. EMERGENCY RESPONSE

51. In the event of any action or occurrence during the performance of the Littleson Work

which 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, Littleson shall, subject to Paragraph 52, immediately take all appropriate

action to prevent, abate, or minimize such release or threat of release, and shall

immediately notify the EPA's Project Coordinator, or, if the Project Coordinator is

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unavailable, EPA's Alternate Project Coordinator. If neither of these persons is available,

Littleson shall notify the EPA Region 8 hotline at 1-800-227-8914. Littleson 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 RD Work Plan.

52. Nothing in the preceding Paragraph or in this Consent Decree shall be deemed to limit

any authority of the United States: a) to take all appropriate action to protect human

health or 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 or the environment or to

prevent, abate, respond to, or minimize an actual or threatened release of Waste Material

on, at, or from the Site, subject to Article XXIII. COVENANTS BY THE UNITED

STATES.

XVI. PAYMENTS FOR RESPONSE COSTS

53. Payments for Past Response Costs. In full satisfaction of Littleson's liabilities relating to

Past and Future Response Costs, Littleson shall pay EPA twenty percent (20%) of its Net

Development Cash Flows from land sale activities at the Site each calendar year that

cumulative Net Development Cash Flows from land sale activities at the Site is a positive

quantity, up to a total aggregate amount of $2,200,000, as follows:

a) "Net Development Cash Flows" means cash (or cash equivalents) received by

Littleson for the sale or transfer of any interest in land at the Site, net of the cash

(or cash equivalents) expended by Littleson to prepare or market the land for sale.

In calculating Littleson's Net Development Cash Flows, Littleson shall be entitled

to include in its cash outflow all necessary and ordinary business expenses to

further the development or sale of land at the Site ("Development Business

Expenses."). Development Business Expenses will be deemed necessary and

ordinary if Littleson reports or will report such Development Business Expenses

to the Internal Revenue Service as a deduction, irrespective of whether such

Development Business Expense qualifies as a current deduction under the Internal

Revenue Code or must be taken over time through depreciation, amortization, or

similar method. For purposes of calculating Littleson's Net Development Cash

Flows, all Development Business Expenses will be deemed to be current as of the

time they are first incurred. EPA and Littleson further agree that Littleson's

Development Business Expenses will include, by way of illustration and not

limitation, direct land development, marketing, and sale costs and expenses, real

estate taxes, as well as 33.33 percent of Littleson's total internal overhead.

b) Cumulative Net Development Cash Flows will be calculated in arrears as the sum

of each annual net cash flow from land sales as of January 1, 2004 to December

31st of the most recently elapsed year, except that for purposes of calculating the

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cumulative Net Development Cash Flows, Littleson will be entitled to treat, as

though they were incurred during 2004, certain development expenses incurred by

Littleson starting in late 2002 in the amount of $530,000.

c) Net Development Cash Flows will be disclosed to EPA through annual, audited

cash flow statements prepared in accordance with the Financial Accounting

Standards Board (FASB) Statement of Financial Accounting Standards No. 95

Statement of Cash Flows. Cash flows from financing and from non-development

operations and investing, including loans made to the company by its

shareholders, will not be considered as cash flows subject to payment to EPA.

The audited statement will be prepared by a qualified accounting firm retained by

Littleson and will certify that the cash flow statement has been prepared in

accordance with the terms and conditions of this Paragraph 53. Statements will

be submitted and payments (if applicable) will be made on or before May 15th of

each calendar year, starting in 2005. EPA shall have sixty (60) days to challenge

the audited statement. Littleson's obligation to provide audited statements under

this subparagraph will terminate upon (i) Littleson's sale of all marketable real

property within the boundaries of the Site; or (ii) the payment to EPA of the total

aggregate amount of $2,200,000, whichever first occurs.

d) If Littleson disposes of real property within the Site through a bartering

transaction or tax deferred exchange (as opposed to a transaction based upon cash

or cash equivalents), the fair market value of such consideration shall be used as a

proxy for cash consideration to calculate Net Development Cash Flows.

e) Payments shall be made to the EPA Hazardous Substance Superfund in the

manner specified in Paragraph 58 below. The total amount to be paid by Littleson

shall be deposited in the Midvale Slag Special Account within the EPA

Hazardous Substance Superfund, to be retained and used to conduct or finance

response actions at or in connection with the Site, or to be transferred by EPA to

the Hazardous Substances Superfund.

XVII. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS

54. Creation of Midvale Slag Disbursement Special Account and Agreement to Disburse

Funds to Littleson. Within thirty (30) days after the Effective Date, EPA shall establish a

new special account, the Midvale Slag Disbursement Special Account, within the EPA

Hazardous Substance Superfund and shall transfer $16,155,000 from the Midvale Slag

Special Account to the Midvale Slag Disbursement Special Account. Subject to the

terms and conditions set forth in this Article and subsequent to the Effective Date of this

Consent Decree, EPA agrees to make Sixteen Million Dollars ($16,000,000) in the

Midvale Slag Disbursement Special Account available for disbursement to Littleson to

accomplish Littleson Work as set forth in this Article. An additional amount of up to

Fifty Thousand Dollars ($50,000) will be made available to Littleson from the Midvale

Slag Disbursement Special Account for Contingency Work Milestone 3.3.1, as provided

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more fully in the RD Work Plan. An additional amount of One Hundred Five Thousand

Dollars ($105,000) will be made available to Littleson, on a lump sum basis, from the

Midvale Slag Disbursement Special Account for Contingency Work Milestone 3.6.1, as

provided more fully in the RD Work Plan.

55. Timing, Amount, and Method of Disbursing Funds From the Midvale Slag Disbursement

Special Account.

a) Littleson has developed a Work Milestone Payment Schedule, attached to the RD

Work Plan as Table 1.0. The Work Milestone Payment Schedule establishes the

lump sum amount Littleson will be reimbursed after satisfactory completion of

each Work Milestone. The lump sum amounts established in the Work Milestone

Payment Schedule do not include any costs relating to development enhancements

or other non-reimbursable costs as provided in Paragraph 56, below. Satisfactory

completion of the Work Milestone shall be documented in the applicable final,

executed Inspection Checklist as provided in Article XIV. COMPLETION OF

MILESTONE WORK.

b) Any time after EPA approval through execution of an Inspection Checklist as

provided in Article XIV. COMPLETION OF MILESTONE WORK, Littleson

may submit to EPA a Disbursement Request with respect to such Work

Milestone(s). All Disbursement Requests received by EPA on or before the final

Working Day of any calendar quarter (ending on March 31, June 30, September

30, and December 31) shall be accepted for processing and payment during the

next quarter by the date specified in subparagraph 55(d).

c) Each Disbursement Request shall contain the following statement signed by the

Supervising Contractor's Chief Financial Officer or an Independent Certified

Public Accountant:

"To the best of my knowledge, after thorough investigation and

review of Littleson's documentation of costs incurred and paid for

Littleson Work performed pursuant to this Consent Decree as to

Work Milestone No(s). as defined in the Remedial

Action Work Plan, I certify that the information contained in or

accompanying this submittal is true, accurate, and complete. I am

aware that there are significant penalties for knowingly submitting

false information, including the possibility of fine and

imprisonment."

Upon request by EPA, Littleson shall submit to EPA any additional information

that EPA deems necessary for its review and approval of a Disbursement Request.

d) Subject to subparagraph 55(e), EPA shall pay Littleson with respect to all

Disbursement Requests accepted for processing during any calendar quarter as

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provided in subsection 55(b) above, on or before the final Working Day of the

next month following the end of the calendar quarter (e.g., April, July, October,

and January). All payments shall be made as directed by Littleson in writing. •

e) If EPA finds that a Disbursement Request contains an error, is not complete, or

includes costs previously reimbursed, it will notify Littleson and provide a

reasonable opportunity to cure the deficiency by submitting a revised

Disbursement Request. If Littleson fails to cure the deficiency within thirty (30)

days after being notified of, and given the opportunity to cure, the deficiency,

EPA will recalculate Littleson's costs eligible for disbursement for that

submission and disburse the corrected amount to Littleson in accordance with the

procedures set forth in this Paragraph. Littleson may dispute EPA's objections to

any Disbursement Request or any recalculation under this Paragraph pursuant to

Article XXI. DISPUTE RESOLUTION. In no event shall Littleson be disbursed

funds from the Midvale Slag Disbursement Special Account in excess of amounts

properly documented in a Disbursement Request accepted or modified by EPA.

56. Costs Excluded from Disbursement. The following costs are excluded from, and shall

not be sought by Littleson for, disbursement from the Midvale Slag Disbursement Special

Account: (a) costs incurred by Littleson prior to the Effective Date, except as to those

costs incurred in performing Milestone Work; (b) attorneys' fees and costs; (c) costs of

any response activities Littleson performs that are not required under, or approved by

EPA pursuant to, this Consent Decree; (d) costs related to the Littleson Litigation,

settlement, or development of potential contribution claims or identification of other

potentially responsible parties; (e) internal costs of Littleson, including but not limited to,

salaries, travel, or in-kind services, except for those costs that represent the work of

employees of Littleson directly performing the Littleson Work; (f) costs solely

attributable to the construction of development improvements; (g) costs solely

attributable to Littleson's efforts to obtain necessary approvals from Midvale City; or (h)

any costs incurred by Littleson pursuant to Article XXI. DISPUTE RESOLUTION.

57. Termination of Disbursements from the Midvale Slag Disbursement Special Account.

EPA's obligation to disburse funds from the Midvale Slag Disbursement Special Account

under this Consent Decree shall terminate upon EPA's determination that Littleson has:

(a) knowingly submitted a materially false or misleading Disbursement Request with the

intention of claiming costs excluded from disbursement under Paragraph 56; (b)

submitted a materially inaccurate or incomplete Disbursement Request and has failed to

correct the materially inaccurate or incomplete Disbursement Request within sixty (60)

days after being notified in writing of, and given the opportunity to cure, the deficiency;

or (c) failed to submit a Disbursement Request if required by Paragraph 55 within thirty

(30) days (or such longer period as EPA agrees) after being notified that EPA intends to

terminate its obligation to make disbursements pursuant to this Article because of

Littleson's failure to submit the Disbursement Request. EPA's obligation to disburse

funds from the Midvale Slag Disbursement Special Account shall also terminate upon

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EPA's assumption of performance of any portion of the Littleson Work pursuant to

Paragraph 97 when such assumption of performance of the Littleson Work is not

challenged by Littleson or, if challenged, is upheld under Article XXI. DISPUTE

RESOLUTION. Littleson may dispute EPA's termination of Midvale Slag Disbursement

Special Account disbursements under Article XXI. DISPUTE RESOLUTION.

58. Recapture of Midvale Slag Disbursement Special Account Disbursements. Upon

termination of disbursements from the Midvale Slag Disbursement Special Account

under Paragraph 57, if EPA has previously disbursed funds from the Midvale Slag

Disbursement Special Account for activities specifically related to the reason for

termination (e.g., discovery of a materially false or misleading submission after

disbursement of funds based on that submission), EPA shall submit an invoice to

Littleson for those amounts already disbursed from the Midvale Slag Disbursement

Special Account specifically related to the reason for termination, plus Interest on that

amount covering the period from the date of disbursement of the funds by EPA to the

date of repayment of the funds by Littleson. Within thirty (30) days of receipt of EPA's

invoice, Littleson shall reimburse the Hazardous Substance Superfund, Midvale Slag

Special Account, for the total amount invoiced by a certified or cashier's check or checks

made payable to "EPA Hazardous Substance Superfund, Special Account Number 0871"

referencing the name and address of the party making payment, EPA Site/Spill

Identification Number 0871, and DOJ Case Number 90-11-3-1194/1. Littleson shall send

the check(s) to:

Regular mail:

Mellon Bank

Attn: Superfund Accounting

Lockbox 360859

Pittsburgh, PA 15251-6859

Federal Express, Airborne, etc.:

US EPA 360859

Mellon Client Service Center Room 670

500 Ross Street

Pittsburgh, PA 15262-0001

Wire Transfers:

Wire transfers should be sent directly to the Federal Reserve Bank in New

York City with the following information:

ABA = 021030004

TREAS NYC/CTR

BNF=/AC-68011008

At the time of payment, Littleson shall send notice that payment has been made to the

United States, to EPA, and to the Regional Financial Management Officer, in accordance

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with Article XXVIII. NOTICES AND SUBMISSIONS. Upon receipt of payment, EPA

may deposit all or any portion thereof in the Midvale Slag Special Account or the

Hazardous Substance Superfund. The determination of where to deposit or how to use the

funds shall not be subject to challenge by Littleson pursuant to the dispute resolution

provisions of this Consent Decree or in any other forum. Littleson may dispute EPA's

determination as to recapture of funds pursuant to Article XXI. DISPUTE

RESOLUTION.

XVIII. REIMBURSEMENT OF RESPONSE COSTS

59. As soon as reasonably practicable after the Effective Date, and consistent with

subparagraph 59(b), the United States, on behalf of the Settling Federal Agencies, shall:

a) Pay to the EPA Hazardous Substance Superfund $2,204,946, in reimbursement of

Past and Future Response Costs. The total amount to be paid by Settling Federal

Agencies shall be deposited in the Midvale Slag Special Account within the EPA

Hazardous Substance Superfund, to be retained and used to conduct or finance

response actions at or in connection with the Site, or to be transferred by EPA to

the Hazardous Substances Superfund. Such payment shall be made in the same

manner as specified in Paragraph 58 above.

b) If the payment to the EPA Hazardous Substances Superfund required by this

subparagraph is not made as soon as reasonably practicable, the appropriate EPA

Assistant Regional Administrator for Enforcement, Compliance and

Environmental Justice may raise any issues relating to payment to the appropriate

DOJ Assistant Section Chief for the Environmental Defense Section. In any

event, if this payment is not made within one hundred and twenty (120) days after

the Effective Date, EPA and DOJ have agreed to resolve the issue within thirty

(30) days in accordance with that certain letter agreement dated December 28,

1998.

60. In the event that payments required by Paragraph 59 are not made within one hundred

and twenty (120) days of the Effective Date, interest on the unpaid balance shall be paid

at the rate established pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a),

commencing on the Effective Date and accruing through the date of the payment.

61. The Parties to this Consent Decree recognize and acknowledge that the payment

obligations of the Settling Federal Agencies under this Consent Decree can only be paid

from appropriated funds legally available for such purpose. Nothing in this Consent

Decree shall be interpreted or construed as a commitment or requirement that any

Settling Federal Agency obligate or pay funds in contravention of the Anti-Deficiency

Act, 31 U.S.C. § 1341, or any other applicable provision of law.

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XIX. INDEMNIFICATION AND INSURANCE

62. Littleson's Indemnification of the United States.

a) The United States does not assume any liability by entering into this agreement or

by virtue of any designation of Littleson as EPA's authorized representative under

Section 104(e) of CERCLA. Littleson shall indemnify, save and hold harmless the

United States, its officials, agents, employees, contractors, subcontractors, or

representatives for or from any and all claims or causes of action arising from, or

on account of, negligent or other wrongful acts or omissions of Littleson, 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 Littleson as EPA's authorized representative under Section 104(e)

of CERCLA, 42 U.S.C. § 9604(e). Further, Littleson agrees to pay the United

States all costs it incurs 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 based on negligent or other wrongful acts or omissions

of Littleson, 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. The United States shall not be held out as a

party to any contract entered into by or on behalf of Littleson in carrying out

activities pursuant to this Consent Decree. Neither Littleson nor any such

contractor shall be considered an agent of the United States.

b) The United States shall give Littleson written notice of any claim for which the

United States plans to seek indemnification pursuant to this Paragraph and shall

consult with Littleson prior to settling such claim.

63. Littleson waives all claims against the United States for damages or reimbursement or for

set-off of any payments made or to be made to the United States, arising from or on

account of any contract, agreement, or arrangement between Littleson and any person for

performance of Littleson Work on or relating to the Site, including, but not limited to,

claims on account of construction delays. In addition, Littleson shall indemnify and hold

harmless the United States with respect to any and all claims for damages or

reimbursement arising from or on account of any contract, agreement, or arrangement

between Littleson and any person for performance of Littleson Work on or relating to the

Site, including, but not limited to, claims on account of construction delays.

64. No later than fifteen (15) days before commencing any on-site Littleson Work, Littleson

or the Supervising Contractor shall secure, and shall maintain until EPA's Certification of

Completion of Milestone Work pursuant to Paragraph 50, comprehensive general liability

insurance with general aggregate limits of $2 million dollars and an occurrence limit of

$1 million, and automobile liability insurance with limits of $1 million dollars, combined

single limit, naming the United States as an additional insured. In addition, for the

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duration of this Consent Decree, Littleson 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 Littleson Work on behalf

of Littleson in furtherance of this Consent Decree. Prior to commencement of the

Littleson Work under this Consent Decree, Littleson shall provide to EPA certificates of

such insurance and a copy of each insurance policy. Littleson shall resubmit such

certificates and copies of policies each year on the anniversary of the Effective Date. If

Littleson demonstrates by evidence satisfactory to EPA that any contractor or

subcontractor maintains insurance equivalent to that described above, or insurance

covering the same risks but in a lesser amount, then, with respect to that contractor or

subcontractor, Littleson need provide only that portion of the insurance described above

which is not maintained by the contractor or subcontractor.

XX. FORCE MAJEURE

65. "Force majeure," for purposes of this Consent Decree, is defined as any event arising

from causes beyond the control of Littleson, of any entity controlled by Littleson, or of

Littleson's contractors, that delays or prevents the performance of any obligation under

this Consent Decree despite Littleson's best efforts to fulfill the obligation. The

requirement that Littleson exercise "best efforts to fulfill the obligation" includes using

best efforts to anticipate any potential force majeure event and best efforts to address the

effects of any potential force majeure event (1) as it is occurring and (2) following the

potential force majeure event, such that the delay is minimized to the greatest extent

possible. "Force Majeure" does not include financial inability to complete the Littleson

Work.

66. If any event occurs or has occurred that may delay the performance of any obligation

under this Consent Decree, whether or not caused by a force majeure event, Littleson

shall notify orally EPA's Project Coordinator or, in his or her absence, EPA's Alternate

Project Coordinator or, in the event both of EPA's designated representatives are

unavailable, the Assistant Regional Administrator, Office of Ecosystems Protection and

Remediation, EPA Region 8 ("ARA"), within three (3) Working Days of when Littleson

first knew that the event might cause a delay. Within twenty (20) days thereafter,

Littleson shall provide in writing to EPA the following information: (a) a description of

the reasons for the delay; (b) the anticipated duration of the delay; (c) a description of all

actions taken or to be taken to prevent or minimize the delay; (d) a schedule for

implementation of any measures to be taken to prevent or mitigate the delay or the effect

of the delay; (e) a description of Littleson's rationale for attributing such delay to a force

majeure event if it intends to assert such a claim; and (f) a statement as to whether, in the

opinion of Littleson, such event may cause or contribute to an endangerment to public

health, welfare or the environment. Littleson shall include with any notice all available

documentation supporting its claim that the delay was attributable to a force majeure.

Failure to comply with the above requirements shall preclude Littleson from asserting

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any claim offeree majeure for that event for the period of time of such failure to comply,

and for any additional delay caused by such failure.

67. If EPA agrees that the delay or anticipated delay is attributable to a force majeure event,

the time for performance of the obligations under this Consent Decree that are affected by

the force majeure event will be extended by EPA 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 event shall not, of itself, extend the time for performance of

any other obligation. If EPA does not agree that the delay or anticipated delay has been or

will be caused by a force majeure event, EPA will notify Littleson in writing of its

decision. If EPA agrees that the delay is attributable to a force majeure event, EPA will

notify Littleson in writing of the length of the extension, if any, for performance of the

obligations affected by the force majeure event.

68. If Littleson elects to invoke the dispute resolution procedures set forth in Article XXI.

DISPUTE RESOLUTION, it shall do so no later than fifteen (15) days after receipt of

EPA's notice. In any such proceeding, Littleson 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 event, 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 Littleson complied with the

requirements of this Article. If Littleson carries this burden, the delay at issue shall be

deemed not to be a violation by Littleson of the affected obligation of this Consent

Decree identified to EPA and the Court.

XXI. DISPUTE RESOLUTION

69. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution

procedures of this Article shall be the exclusive mechanism to resolve disputes arising

under or with respect to this Consent Decree. However, the procedures set forth in this

Article shall not apply to actions by the United States to enforce obligations of any of the

Settling Defendants that have not been disputed in accordance with this Article.

70. Any dispute which arises under or with respect to this Consent Decree shall in the first

instance be the subject of informal negotiations between EPA and the Settling Defendant

raising the dispute (the "Disputing Party"). The period for informal negotiations shall not

exceed twenty (20) days from the time the dispute arises, unless it is extended 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.

71. Statements of Position.

a) In the event that the parties cannot resolve a dispute by informal negotiations

under the preceding Paragraph, then the position advanced by EPA shall be

considered binding unless, within twenty (20) days after the conclusion of the

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informal negotiation period, the Disputing Party invokes the formal dispute

resolution procedures of this Article by serving on the United States a written

Statement of Position on the matter in dispute, including, but not limited to,

factual data, analysis or opinion supporting that position, and supporting

documentation relied upon by the Disputing Party. The Statement of Position

shall specify the Disputing Party's position as to whether formal dispute resolution

should proceed under Paragraph 72 or Paragraph 73.

b) Within ten (10) days after receipt of the Disputing Party's Statement of Position,

EPA will serve on the Disputing Party its Statement of Position, including, but not

limited to, any factual data, analysis, or opinion supporting that position and all

supporting documentation relied upon by EPA. EPA's Statement of Position shall

include a statement as to whether formal dispute resolution should proceed under

Paragraph 72 or Paragraph 73. Within five (5) Working Days after receipt of

EPA's Statement of Position, the Disputing Party may submit a Reply.

c) If there is disagreement between EPA and Disputing Party as to whether dispute

resolution should proceed under Paragraph 72 or Paragraph 73, the parties to the

dispute shall follow the procedures set forth in the paragraph determined by EPA

to be applicable, unless the Disputing Party ultimately appeals to the Court to

resolve the dispute, in which case the Court shall determine which paragraph is

applicable in accordance with the standards of applicability set forth in Paragraph

72 and Paragraph 73.

72. 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: (1) the adequacy or appropriateness

of plans, procedures to implement plans, or any other items requiring approval by EPA

under this Consent Decree; and (2) 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 any Disputing Party regarding the validity of either the

OU1 or OU2 ROD provisions, except that the Disputing Party retains its right to

challenge any Explanation of Significant Difference or modification to either ROD that is

not in effect as of the Effective Date.

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 Article. Where appropriate, EPA may allow submission of

supplemental statements of position by the parties to the dispute.

b) The ARA, Office of Ecosystems Protection and Remediation will issue a final

administrative decision resolving the dispute based on the administrative record

described in Paragraph 72(a). This decision shall be binding upon the Disputing

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Party, subject only to the right to seek judicial review pursuant to Paragraph 72(c)

and (d).

c) Any administrative decision made by EPA pursuant to Paragraph 72(b) shall be

reviewable by this Court, provided that a motion for judicial review of the

decision is filed by the Disputing Party with the Court and served on all Parties

within ten (10) Working Days of 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 the Disputing Party's motion within twenty

(20) days.

d) In proceedings on any dispute governed by this Paragraph, the Disputing Party

shall have the burden of demonstrating that the decision of the ARA 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

72(a).

73. 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 the Disputing Party's Statement of Position submitted

pursuant to Paragraph 71, the ARA will issue a final decision resolving the

dispute. The ARA's decision shall be binding on the Disputing Party unless,

within ten (10) Working Days of receipt of the decision, the Disputing Party 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 the Disputing Party's motion in accordance

with the rules of this Court.

b) Judicial review of any dispute governed by this Paragraph shall be governed by

applicable principles of law.

74. The invocation of formal dispute resolution procedures under this Article shall not

extend, postpone or affect in any way any obligation of any Party under this Consent

Decree, not directly in dispute, unless EPA agrees or the Court orders 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 82.

Notwithstanding the stay of payment, stipulated penalties shall accrue from the first day

of noncompliance with any applicable provision of this Consent Decree, hi the event that

the Disputing Party does not prevail on the disputed issue, stipulated penalties (as

-36-
applicable) shall be assessed and paid as provided in Article XXII. STIPULATED

PENALTIES.

XXII. STIPULATED PENALTIES

75. Littleson shall be liable for stipulated penalties in the amounts set forth in this Article to

the United States for failure to comply with the requirements of this Consent Decree

specified below, unless excused under Article XX. FORCE MAJEURE. "Compliance"

by Littleson shall include completion of the activities under this Consent Decree or any

Work Plan or other plan approved under this Consent Decree identified below in

accordance with all applicable requirements of law, this Consent Decree, the RD Work

Plan, and any plans or other documents approved by EPA pursuant to this Consent

Decree and within the specified time schedules established by and approved under this

Consent Decree.

76. Stipulated Penalty Amounts - Littleson Work. Unless EPA, in its sole discretion, chooses

to waive stipulated penalties, the following stipulated penalties shall accrue per violation

per day for any material noncompliance with the requirements of this Consent Decree:

Penalty Per Violation Per Day Period of Noncompliance

$250 1st through 14th day

$500 15th through 30th day

$ 1000 31st day and beyond

77. Stipulated Penalty Amounts - Reports. Unless EPA, in its sole discretion, chooses to

waive stipulated penalties, the following stipulated penalties shall accrue per violation per

day for failure to submit timely or adequate reports required by the Statement of Work:

Penalty Per Violation Per Day Period of Noncompliance

$125 1st through 14th day

$250 15th through 30th day

$500 31st day and beyond

78. 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: (1) with respect to a deficient deliverable as provided under XI. EPA

APPROVAL OF DELIVERABLES; (2) with respect to a decision by the ARA under

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Paragraph 72(b) or 73 (a) of Article XXI. DISPUTE RESOLUTION, during the period,

if any, beginning on the day that Littleson's Statement of Position is received by EPA

until the date that the ARA issues a final decision regarding such dispute; or (3) with

respect to judicial review by this Court of any dispute under Article XXI. DISPUTE

RESOLUTION, during the period, if any, beginning on the 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 herein shall prevent the simultaneous accrual

of separate penalties for separate violations of this Consent Decree.

79. Following EPA's determination that Littleson has failed to comply with a requirement of

this Consent Decree, EPA shall give Littleson written notification of the same and

describe the noncompliance. EPA may send Littleson a written demand for the payment

of the penalties. However, penalties shall accrue as provided in the preceding paragraph

regardless of whether EPA has notified Littleson of a violation.

80. All penalties accruing under this Article shall be due and payable to the United States

within thirty (30) days of Littleson's receipt from EPA of a written demand for payment

of the penalties, unless Littleson invokes the Dispute Resolution procedures under XXI.

DISPUTE RESOLUTION. All payments to the United States under this Article shall be

paid by certified or cashier's check(s) made payable to "EPA Hazardous Substances

Superfund," shall be mailed to Mellon Bank, Attn: Superfund Accounting, Lockbox

360859, Pittsburgh, PA 15251-6859, shall indicate that the payment is for stipulated

penalties, and shall reference the EPA Region and Site/Spill ID #0871, the DOJ Case

Number 90-11-3-1194/1, and the name and address of the party making payment. Copies

of check(s) paid pursuant to this Article, and any accompanying transmittal letter(s), shall

be sent to the United States as provided in Article XXVI (Notices and Submissions).

81. The payment of penalties shall not alter in any way Littleson's obligation to complete the

performance of the Littleson Work required under this Consent Decree.

82. Penalties shall continue to accrue as provided in this Article during any dispute resolution

period, but need not be paid until the following:

a) If the dispute is resolved by agreement or by a decision of EPA that is not

appealed to this Court, accrued penalties determined to be owing shall be paid to

EPA within fifteen (15) days of 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, Littleson shall pay all accrued penalties determined by the Court to be

owed to EPA within sixty (60) days of receipt of the Court's decision or order,

except as provided in Subparagraph c below;

c) If the District Court's decision is appealed by any Party, Littleson shall pay all

accrued penalties determined by the District Court to be owing to the United

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States into an interest-bearing escrow account within sixty (60) days of receipt of

the Court's decision or order. Penalties shall be paid into this account as they

continue to accrue, at least every sixty (60) days. Within fifteen (15) days of

receipt of the final appellate court decision, the escrow agent shall pay the balance

of the account to EPA or to Littleson to the extent that they prevail.

83. If Littleson fails to pay stipulated penalties when due, the United States may institute

proceedings to collect the penalties, as well as Interest. Littleson shall pay Interest on the

unpaid balance, which shall begin to accrue on the date of demand made pursuant to

Paragraph 79.

84. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in any way

limiting the ability of the United States to seek any other remedies or sanctions available

by virtue of Littleson's violation of this Decree or of the statutes and regulations upon

which it is based, including, but not limited to, penalties pursuant to Section 122(1) of

CERCLA, provided, however, that the United States shall not seek civil penalties

pursuant to Section 122(1) of CERCLA, 42 U.S.C. § 9622(1) for any violation for which a

stipulated penalty is provided herein, except in the case of a willful violation of the

Consent Decree.

85. Notwithstanding any other provision of this Article, the United States may, in its

unreviewable discretion, waive any portion of stipulated penalties that have accrued

pursuant to this Consent Decree.

XXIII. COVENANTS BY THE UNITED STATES

86. Littleson. In consideration of Littleson's performance of the Littleson Work under the

terms of this Consent Decree, and except as otherwise specifically provided for in

Paragraphs 93, 94, and 95 of this Article, the United States (i) hereby covenants not to

sue or take administrative action, or to otherwise assert any claim against Littleson or its

present or former officers or directors, arising from or relating to the Site, Past Response

Costs, Future Response Costs, or the Remedial Action; and (ii) hereby releases and

waives any lien it may have with respect to the Site now and in the future under Section

107(r) of CERCLA, 42 U.S.C. § 9607(r), for costs incurred or to be incurred by EPA in

responding to the release or threat of a release of hazardous substances that were disposed

of at the Site prior to the Effective Date. These covenants not to sue and releases are

conditioned upon the satisfactory performance by Littleson of its obligations under this

Consent Decree but shall take effect immediately upon the Effective Date.

87. Release of Lien. Within thirty (30) days of the Effective Date, the United States shall

cause to be recorded a Release of Lien in substantially the same form as the document

attached hereto as Appendix H.

88. Littleson's Successors and Assigns. The covenants, releases, and agreements set forth in

this Article shall inure to the benefit of Littleson (including its present and former officers

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and directors) and its successors and assigns, and shall be binding upon and enforceable

against the United States.

89. Bona Fide Purchasers. Without in any way limiting the applicability of Paragraphs 86 or

88, EPA further covenants not to assert any claims and to release and waive all claims or

causes of action that it may have for all matters relating to the Site against any Bona Fide

Purchaser that acquires an ownership or other interest in any real property located within

the Site after certification of construction completion. For purposes of this Consent

Decree, a person or entity shall be considered a Bona Fide Purchaser meeting the

statutory definition of "bona fide prospective purchaser" set forth in Section 101(40) of

CERCLA, 42 U.S.C. § 9601(40) if:

a) The person or entity acquires an interest in real property situated within the

boundaries of the OU1 portion of the Site; or

b) The person or entity acquires an interest in real property situated within the

boundaries of the OU2 portion of the Site after the relevant Certification(s) of

Construction Work Completion (pursuant to Paragraph 48) have been obtained for

the applicable property; or after modified Work Milestones for the relevant

property, established in accordance with Section 2.4.8 of the RD Work Plan, have

been completed.

Provided, however, that no person or entity shall be considered a Bona Fide Purchaser if

such person or entity:

c) Is responsible for the release of any reportable quantity of hazardous substances at

the Site; or

d) Fails to comply with the substantive requirements of Article IX. ACCESS,

O&M, AND INSTITUTIONAL CONTROLS (or any covenant or obligation

created pursuant thereto) or fails to comply with any request for information or

administrative subpoena issued by EPA related to the Site.

90. Settling Federal Agencies. In consideration of the payments that will be made by the

Settling Federal Agencies under the terms of the Consent Decree, and except as

specifically provided in Paragraphs 93, 94, and 95 of this Article, EPA covenants not to

take administrative action against the Settling Federal Agencies arising from or relating

to the Site, Past Response Costs, Future Response Costs, or the Remedial Action. These

covenants and releases are conditioned upon the satisfactory performance by the Settling

Federal Agencies of their obligations under this Consent Decree, including the payments

required by Paragraph 59, and shall take effect immediately as of the Effective Date.

EPA's covenant extends only to the Settling Federal Agencies and does not extend to any

other person.

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91. UPRR. In consideration of UPRR's obligations under the terms of this Consent Decree

and the obligations set forth in the Midvale Slag Superfund Site Settlement and Release

Agreement by and between Littleson and UPRR, and except as otherwise specifically

provided in Paragraphs 93, 94, and 95 of this Article, the United States hereby covenants

not to sue or take administrative action, or to otherwise assert any claim against UPRR

arising from or relating to the Site, Past Response Costs, Future Response Costs, or the

Remedial Action. This covenant is conditioned upon the satisfactory performance by

UPRR of the UPRR O&M, but shall take effect immediately upon the Effective Date of

this Consent Decree.

92. Midvale City. In consideration of Midvale City's performance of its obligations under

the terms of this Consent Decree, and except as otherwise specifically provided for in

Paragraph 93 of this Article, the United States hereby covenants not to sue or take

administrative action, or to otherwise assert any claim against Midvale City arising from

or relating to the Site, Past Response Costs, Future Response Costs, or the Remedial

Action. This covenant is conditioned upon Midvale City's satisfactory implementation or

enforcement of the Institutional Controls, but shall take effect immediately upon the

Effective Date of this Consent Decree.

93. General Reservations of Rights. The United States reserves, and this Consent Decree is

without prejudice to, all rights against Settling Defendants and Settling Federal Agencies

with respect to all matters not expressly included within the United States' covenants.

Notwithstanding any other provision of this Consent Decree, the United States reserves

all rights against Littleson, Midvale City, and UPRR, and EPA reserves, and this Consent

Decree is without prejudice to, all rights against the Settling Federal Agencies, with

respect to:

a) claims based on a failure by Settling Defendants or the Settling Federal Agencies

to meet and perform their respective responsibilities as required pursuant to this

Consent Decree; provided however, that each Settling Defendant and Setting

Federal Agency shall be responsible to perform only the work or perform only

those obligations required herein and none of the Settling Defendants or Settling

Federal Agencies shall be responsible to perform the work or fulfill the

obligations required herein to be performed by any other Settling Defendant or

Settling Federal Agency;

b) liability arising from the past, present, or future disposal, release, or threat of

release of Waste Material outside of the Site;

c) liability based upon the transportation, treatment, storage, or disposal, or the

arrangement for the transportation, treatment, storage, or disposal by a Settling

Defendant of Waste Material at or in connection with the Site, other than as

provided in the OU1 ROD and OU2 ROD, the Littleson Work, or otherwise

ordered by EPA, after signature of this Consent Decree by Settling Defendants;

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d) liability for damages for injury to, destruction of, or loss of natural resources

under federal trusteeship;

e) criminal liability; and

f) liability for violations of federal or state law which occur during or after

implementation of the Remedial Action.

94. United States' Pre-Certification Reservations. Notwithstanding any other provision of

this Consent Decree, the United States reserves, and this Consent Decree is without

prejudice to, the right to institute proceedings in this action or in a new action, or to issue

an administrative order seeking to compel Littleson or UPRR, and EPA reserves the right

to issue an administrative order seeking to compel the Settling Federal Agencies, (i) to

perform further response actions relating to OU2, or (ii) to reimburse the United States

for additional costs of response if, prior to issuance of a Certification of Construction

Work Completion as to OU2, pursuant to Paragraph 49:

a) conditions at OU2, previously unknown to EPA, are discovered, or

b) information, previously unknown to EPA, is received, in whole or in part;

and, EPA determines that these previously unknown conditions of information together

with any other relevant information indicate that the Remedial Action as pertaining to

OU2 is not protective of human health or the environment.

For purposes of this Paragraph 94, the conditions and information known to EPA shall

mean the conditions and information known to EPA as of the date that this Consent

Decree is lodged with the United States District Court, or reasonably foreseeable at that

time, as set forth in the OU2 ROD or otherwise in the administrative record relating to

the Site, and including specifically the information and conditions discussed in Paragraph

96, below.

95. United States' Post-Certification Reservations. Notwithstanding any other provision of

this Consent Decree, the United States reserves, and this Consent Decree is without

prejudice to, the right to institute proceedings in this action or in a new action, or to issue

an administrative order seeking to compel Littleson or UPRR, and EPA reserves the right

to issue an administrative order seeking to compel the Settling Federal Agencies, (i) to

perform further response actions relating to the Site, or (ii) to reimburse the United States

for additional costs of response if, as to the OU2 portion of the Site subsequent to

issuance of the Certification of Construction Work Completion pursuant to Paragraph

49, or as to the OU1 portion of the Site:

a) conditions at the Site, previously unknown to EPA, are discovered, or

b) information, previously unknown to EPA, is received, in whole or in part; and

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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.

For purposes of this Paragraph 95 as pertaining to OU2, the conditions and information

known to EPA shall mean the conditions and information known to EPA as of the date of

the Certification of Completion of Construction, or reasonably foreseeable at that time, as

set forth in the administrative record supporting the OU2 ROD, the post-OU2 ROD

administrative record, or in any information received by EPA pursuant to the

requirements of this Consent Decree prior to Certification of Completion of Construction,

and further including specifically the information and conditions discussed in Paragraph

96, below.

For purposes of this Paragraph 95 as pertaining to OU1, the conditions and information

known to EPA shall mean the conditions and information known to EPA as of the date of

the Certification of Completion of Construction, or reasonably foreseeable at that time,

and including specifically the information and conditions discussed in Paragraph 96,

below.

96. Scope of Reservations as to Groundwater. Subject only to the general reservation of

rights set forth in Paragraph 93, the Parties expressly agree that Littleson (including any

past or present director, officer, successors, assigns, or Bona Fide Purchasers) and UPRR

and Midvale City shall not be liable for any Past or Future Response Costs arising from

or relating to groundwater contamination associated with the Site in the event that the

preferred remedial alternative for groundwater adopted in the OU2 ROD is determined to

not be protective of human health or the environment or is otherwise ineffective.

97. Littleson Work Takeover. In the event EPA determines that Littleson has ceased

implementation of any portion of the Littleson Work, is seriously or repeatedly deficient

or late in its performance of the Littleson Work, or is implementing the Littleson Work in

a manner which may cause an endangerment to human health or the environment, EPA

may assume the performance of all or any portions of the Littleson Work as EPA

determines necessary. Littleson may invoke the procedures set forth in Article XXI.

DISPUTE RESOLUTION, Paragraph 72 to dispute EPA's determination that takeover of

the Littleson Work is warranted under this Paragraph. Should EPA take over the

Littleson Work, EPA shall use funds from Littleson's financial assurance pursuant to

Paragraph 40 towards completing the Littleson Work. Any unreimbursed costs incurred

by the United States in performing the Littleson Work pursuant to this Paragraph shall be

considered Future Response Costs that Littleson shall be required to pay.

98. Notwithstanding any other provision of this Consent Decree, the United States retains all

authority and reserves all rights to take any and all response actions authorized by law.

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XXIV. COVENANTS BY SETTLING DEFENDANTS AND SETTLING FEDERAL

AGENCIES

99. Covenant Not to Sue by Settling Defendants. Subject to the reservations in this Article,

Littleson, UPRR and Midvale City covenant not to sue and agree not to assert any claims

or causes of action against the United States with respect to the Site, including, but not

limited to:

a) any direct or indirect claim for reimbursement from the Hazardous Substance

Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507)

through CERCLA Sections 106(b)(2), 107, 111, 112, 113, 42 U.S.C. §

9606(b)(2), 9607, 9611, 9612, 9613, or any other provision of law;

b) any claims against the United States, including any department, agency or

instrumentality of the United States under CERCLA Sections 107 or 113, 42

U.S.C. § 9607 or 9613 related to the Site;

c) any claims arising out of response actions at or in connection with the Site,

including any claim under the United States Constitution, the State Constitution,

the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. §

2412, as amended, or at common law; or

d) any direct or indirect claim for disbursement from the Midvale Slag Disbursement

Special Account (established pursuant to this Consent Decree), except as provided

in Article XVII. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS or the

Cooperative Agreement.

e) any direct or indirect claim relating to the allocation by the United States of funds

recovered by the United States in settlements with other parties relating to the Site

including, without limitation, claims that the Settling Defendants are entitled to a

credit or set-off with respect to such funds.

Except as provided in Paragraph 103 (Waiver of Claims Against De Micromis Parties),

and Paragraph 104 (Waiver of Claims Against De Minimis Parties), these covenants not

to sue shall not apply in the event that the United States brings a cause of action or issues

an order pursuant to the reservations set forth in Article XXIII. COVENANTS BY

UNITED STATES against any Settling Defendant, but only to the extent that any such

Settling Defendant's claims arise from the same response action, response costs, or

damages that the United States is seeking pursuant to the applicable reservation.

100. Covenant by Settling Federal Agencies. Settling Federal Agencies hereby agree not to

assert any direct or indirect claim for reimbursement from the Hazardous Substance

Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507) through

CERCLA Sections 106(b)(2), 107, 111, 112, 113 or any other provision of law with

respect to the Site, or this Consent Decree. This covenant does not preclude demand for

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reimbursement from the Superfund of costs incurred by a Settling Federal Agency in the

performance of its duties (other than pursuant to this Consent Decree) as lead or support

agency under the National Contingency Plan (40 C.F.R. Part 300).

101. General Reservation of Rights.

a) Settling Defendants reserve, and this Consent Decree is without prejudice, to

claims against the United States, subject to the provisions of Chapter 171 of Title

28 of 44 United States Code, 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 while acting within the scope of his 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, any such claim shall not include a claim for

any damages caused, in whole or in part, by the act or omission of any person,

including any contractor, who is not a federal employee as that term is defined in

28 U.S.C. § 2671; nor shall any such claim include a claim based on EPA's

selection of response actions, or the oversight or approval of Littleson's plans or

activities. The foregoing applies only to claims which are brought pursuant to any

statute other than CERCLA and for which the waiver of sovereign immunity is

found in a statute other than CERCLA.

b) Settling Defendants reserve, and this Consent Decree is without prejudice, to

contribution claims or any other claims under CERCLA (including without

limitation the claims referred to in Paragraph 99(e)) against the Settling Federal

Agencies or any other person in the event any claim is asserted by the United

States against any of the Settling Defendants under the authority of or under

Paragraphs 93(b)-(d), 94, 95, or 96 of Article XXIII. COVENANTS BY THE

UNITED STATES, but only to the same extent and for the same matters,

transactions, or occurrences as are raised in the claim of the United States against

the Settling Defendants.

102. Nothing in this Consent Decree shall be deemed to constitute preauthorization of a claim

within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R.

§300.700(d).

103. Waiver of Claims Against De Micromis Parties. Settling Defendants agree not to assert

any claims and to waive all claims or causes of action that they may have for all matters

relating to the Site, including for contribution, against any person where the person's

liability to a 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:

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a) the materials contributed by such person to the Site containing hazardous

substances did not exceed the greater of (i) 0.002% of the total volume of waste at

the Site, or (ii) 110 gallons of liquid materials or 200 pounds of solid materials,

but

b) this waiver shall not apply to any claim or cause of action against any person

meeting the above criteria if EPA has determined that the materials contributed to

the Site by such person contributed or could contribute significantly to the costs

of response at the Site. This waiver also shall not apply with respect to any

defense, claim, or cause of action that a Settling Defendant may have against any

person if such person asserts a claim or cause of action relating to the Site against

such Settling Defendant.

104. Waiver of Claims Against De Minimis Parties. Settling Defendants agree not to assert

any claims and to waive all claims or causes of action that it may have for all matters

relating to the Site, including for contribution, against any person that has entered into a

final CERCLA § 122(g) de minimis settlement with EPA with respect to the Site as of the

Effective Date. This waiver shall not apply with respect to any defense, claim, or cause

of action that a Settling Defendant may have against any person if such person asserts a

claim or cause of action relating to the Site against such Settling Defendant.

XXV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION

105. No Third-Party Beneficiaries. Except as provided in Paragraph 89 (Bona Fide

Purchasers), Paragraph 103 (Waiver of Claims Against De Micromis Parties), or

Paragraph 104 (Waiver of Claims Against De Minimis 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 (or a Littleson Work Successor) to this Consent Decree. The

preceding sentence shall not be construed to waive or nullify any rights that any person

not a signatory to this decree may have under applicable law. Except as provided in

Paragraph 89 (Bona Fide Purchasers), Paragraph 103 (Waiver of Claims Against De

Micromis Parties), or Paragraph 104 (Waiver of Claims Against De Minimis Parties),

each of the Parties expressly reserves any and all rights (including, but not limited to, any

right to contribution), defenses, claims, demands, and causes of action which each Party

(or successor) may have with respect to any matter, transaction, or occurrence relating in

any way to the Site against any person not a Party (or successor) hereto.

106. Contribution Protection. The Parties agree, and by entering this Consent Decree this

Court finds, that Littleson, including its present and former officers and directors, Bona

Fide Purchasers of any real property located within the Site (as set forth in Paragraph 89),

and the other Settling Defendants and Settling Federal Agencies are entitled, as of the

Effective Date, to protection from contribution actions or claims as provided by

CERCLA Section 113(0(2), 42 U.S.C. § 9613(f)(2) formatters addressed in this Consent

Decree. For purposes of this Paragraph, "matters addressed in this Consent Decree" is

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defined as all response actions taken or to be taken, and all response costs incurred or to

be incurred by the United States or any other person, with respect to the Site.

107. Notice. Settling Defendants individually agree that, with respect to any suit or claim for

contribution brought by any such Settling Defendant for matters related to this Consent

Decree, such Settling Defendant will notify the United States in writing no later than

sixty (60) days prior to the initiation of such suit or claim. Settling Defendants also

individually agree that, with respect to any suit or claim for contribution brought against

any such Settling Defendant for matters related to this Consent Decree, such Settling

Defendant will notify in writing the United States within twenty (20) days of service of

the complaint upon such Settling Defendant. In addition, any such Settling Defendant

shall notify the United States within ten (10) days of service or receipt of any motion for

summary judgment and within ten (10) days of receipt of any order from a court setting a

case for trial.

108. In any subsequent administrative or judicial proceeding initiated by the United States for

injunctive relief, recovery of response costs, or other appropriate relief relating to the

Site, no Settling Defendant shall assert or maintain any defense or claim based upon the

principles of waiver, res judicata, collateral estoppel, issue preclusion, claimsplitting, or

other defenses based upon any contention that the claims raised by the United States 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 Article XXIII. COVENANTS BY UNITED STATES or

the reservation of Settling Defendants' rights as set forth in Article XXIV.

COVENANTS BY SETTLING DEFENDANTS AND SETTLING FEDERAL

AGENCIES.

XXVI. ACCESS TO INFORMATION

109. Each Settling Defendant shall, upon request, provide to EPA copies of any non-privileged

documents and information within its possession or control or that of its contractors or

agents relating to their respective activities at the Site or to the implementation of their

respective obligations under this Consent Decree, including, as applicable, sampling,

analysis, chain of custody records, manifests, trucking logs, receipts, reports, sample

traffic routing, correspondence, or other documents or information related to the Littleson

Work, Groundwater O&M, and/or implementation or enforcement of the Institutional

Controls, as applicable. Each Settling Defendant shall also make available to EPA, for

purposes of investigation, information gathering, or testimony, their employees, agents,

or representatives with knowledge of relevant facts concerning the performance of their

applicable obligations under this Consent Decree, including without limitation, the

Littleson Work, and/or implementation or enforcement of the Institutional Controls, as

applicable.

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110. Business Confidential and Privileged Documents.

a) Settling Defendants may assert business confidentiality claims covering part or all

of the documents or information submitted to EPA or the United States under this

Consent Decree to the extent permitted by and in accordance with Section

104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b).

Documents or information determined to be confidential by EPA will be afforded

the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of

confidentiality accompanies documents or information when they are submitted to

EPA, or if EPA has notified such Settling Defendant that the documents or

information 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

documents or information without further notice to such Settling Defendant.

b) Settling Defendants may assert that certain documents, records and other

information are privileged under the attorney-client privilege or any other

privilege recognized by federal law. If a Settling Defendant asserts such a

privilege in lieu of providing documents, upon request it shall provide the EPA

with the following: (1) the title of the document, record, or information; (2) the

date of the document, record, or information; (3) the name and title of the author

of the document, record, or information; (4) the name and title of each addressee

and recipient; (5) a description of the contents of the document, record, or

information; and (6) the privilege asserted by the Settling Defendant. However,

no documents, reports or other information created or generated pursuant to the

requirements of the Consent Decree shall be withheld on the grounds that they are

privileged.

111. No claim of confidentiality shall be made with respect to any data, including, but not

limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or

engineering data, or any other documents or information evidencing conditions at or

around the Site.

112. The United States acknowledges that each Settling Federal Agency (1) is subject to'all

applicable Federal record retention laws, regulations, and policies; and (2) has certified

that it has fully complied with any and all EPA requests for information pursuant to

Section 104(e) and 122(e) of CERCLA, 42 U.S.C. §§9604(e) and 9622(e), and Section

3007 of RCRA, 42 U.S.C. §6927.

XXVII. RETENTION OF RECORDS

113. Until ten (10) years after Littleson's receipt of EPA's notification pursuant to Paragraph

50(b) of Article XIV. COMPLETION OF MILESTONE WORK, and except as

otherwise specifically provided in the Cooperative Agreement, Settling Defendants shall

preserve and retain all non-identical copies of records and documents (including records

or documents in electronic form) now in its possession or control or which come into its

-48-
possession or control that relate in any manner to its liability under CERCLA with

respect to the Site; provided, however, that each Settling Defendant must retain, in

addition, all documents and records that relate to the liability of any other person under

CERCLA with respect to the Site. Settling Defendants must also retain, and instruct its

contractors and agents to preserve, for the same period of time specified above all nonidentical copies of the last draft or final version of any documents or records (including

documents or records in electronic form) now in its possession or control or which come

into its possession or control that relate in any manner to the performance of the Littleson

Work, UPRR O&M relating to performance of the Remedial Action on the UPRR

Property, and/or implementation or enforcement of the Institutional Controls; provided,

however, that Settling Defendants (and their contractors and agents) must retain, in

•addition, copies of all data generated during the performance of the Littleson Work,

UPRR O&M relating to performance of the Remedial Action on the UPRR Property,

and/or implementation or enforcement of the Institutional Controls and not contained in

the aforementioned documents required to be retained. Each of the above record

retention requirements shall apply regardless of any corporate retention policy to the

contrary.

114. At the conclusion of this document retention period, each Settling Defendant shall notify

the United States at least ninety (90) days prior to the destruction of any such records or

documents, and, upon request by the United States, any such Settling Defendant shall

deliver requested records or documents to EPA. Settling Defendants may assert that

certain documents, records and other information are privileged under the attorney client

privilege or any other privilege recognized by federal law. If a Settling Defendant asserts

such a privilege, it shall, upon request, provide with the following: (1) the title of the

document, record, or information; (2) the date of the document, record, or information;

(3) the name and title of the author of the document, record, or information; (4) the name

and title of each addressee and recipient; (5) a description of the subject of the document,

record, or information; and (6) the privilege asserted by the Settling Defendant.

However, no documents, reports or other information created or generated pursuant to the

requirements of the Consent Decree shall be withheld on the grounds that they are

privileged.

115. Each Settling Defendant hereby individually 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, documents or other information (other than identical

copies) relating to its potential liability regarding the Site since notification of potential

liability by the United States or the filing of suit against it regarding the Site and that it

has fully complied with any and all EPA requests for information pursuant to Section

104(e) and 122(e) of CERCLA, 42 U.S.C. 9604(e) and 9622(e), and Section 3007 of

RCRA, 42 U.S.C. 6927.

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XXVIII. NOTICES AND SUBMISSIONS

116. 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 Party to another, it shall be

directed to the individuals at the addresses specified below, unless those individuals or

their successors give notice of a change to the other Parties in writing. All notices and

submissions shall be considered effective upon receipt, unless otherwise provided.

Written notice as specified herein shall constitute complete satisfaction of any written

notice requirement of the Consent Decree with respect to the United States, EPA,

Littleson, Midvale City, Settling Federal Agencies, or UPRR, respectively.

As to the United States: Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611

Washington, D.C. 20044-7611

Re: DJ# 90-11-3-1194/1

Chief, Environmental Defense Section

United States Department of Justice

P. O. Box 23986

Washington, DC 20026-3986

Re: DJ#s: 90-11-6-05738; 90-11-6-05739

And Assistant Regional Administrator 8 EPR

United States Environmental Protection Agency

Region 8

999 18th Street, Suite 300

Denver, CO 80202-2466

As to EPA: Frances L. Costanzi 8 EPR-SR

EPA Project Coordinator

United States Environmental Protection Agency

Region 8

999 18th Street, Suite 300

Denver, CO 80202-2466

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As to the Regional Financial Management

Officer: Regional Financial Management Office 8TMS-F

United States Environmental Protection Agency

999 18th Street, Suite 300

Denver, CO 80202-2466

As to Littleson:

As to Midvale City

Robert Soehnlen

Littleson, Inc.

2100 East Bengal Blvd.

#F203

Salt Lake City, Utah 84123

With a copy to:

Kevin R. Murray

lOOOKearnsBldg.

136 South Main Street

Salt Lake City, Utah 84104-1645

Christine Richman

Director

Community & Economic Development

City of Midvale

655 W. Center Street

Midvale, Utah 84047

With a copy to:

Martin Pezely

City Attorney

City of Midvale

655 W. Center Street

Midvale, Utah 84047

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AsUPRR: David P. Young

Union Pacific Railroad Company

1400 Douglas Street

Omaha, Nebraska 68179

Fax:(402)271-7107

With a copy to:

Dennis C. Farley

Lear & Lear, LLP

299 South Main, Suite 2200

Wells Fargo Center

Salt Lake City, Utah 84111

Fax:(801)538-5001

XXIX. EFFECTIVE DATE

117. The Effective Date of this Consent Decree shall be the date upon which this Consent

Decree is entered by the Court, except as otherwise provided herein.

XXX. RETENTION OF JURISDICTION

118. This Court retains jurisdiction over both the subject matter of this Consent Decree and the

Parties for the duration of the performance of the terms and provisions of this Consent

Decree for the purpose of enabling any of the Parties to apply to the Court at any time for

such further order, direction, and relief as may be necessary or appropriate for the

construction or modification of this Consent Decree, or to effectuate or enforce

compliance with its terms, or to resolve disputes in accordance with Article XXI.

DISPUTE RESOLUTION hereof.

XXXI. APPENDICES

119. The following appendices are attached to and incorporated into this Consent Decree:

"Appendix A" includes the OU1 ROD (Appendix A-l). and the OU2 ROD (Appendix A-2).

"Appendix B" is the RD Work Plan.

"Appendix C" is the description and/or map of the Site.

"Appendix D" is a form of Notice and Easement Littleson will record with the Salt Lake County

Recorder's Office in accordance with Paragraphs 9(a) and 22(a).

"Appendix E" is a form of Notice UPRR will record with the Salt Lake County Recorder's Office

in accordance with Paragraph 9(b).

-52-
"Appendix F" is a list of the departments, agencies, and instrumentalities of the United States

defined herein as the "Settling Federal Agencies."

"Appendix G" is the form of insurance policy for purposes of financial assurance.

"Appendix H" is the form of Release of Lien.

"Appendix I" is the legal description of the UPRR Property.

"Appendix J" is the Institutional Control Process Plan for OU1.

"Appendix K" is the Institutional Control Process Plan for OU2.

XXXII. COMMUNITY RELATIONS

120. Littleson shall propose to EPA their participation in the Community Relations plan to be

developed by EPA. EPA will determine the appropriate role for Littleson under the Plan.

Littleson shall also cooperate with EPA in providing information regarding the Littleson

Work to the public. As requested by EPA, Littleson shall participate in the preparation of

such information for dissemination to the public and in public meetings which may be

held or sponsored by EPA to explain activities at or relating to the Site.

XXXIII. MODIFICATION

121. Schedules specified in this Consent Decree for completion of the Littleson Work may be

modified by agreement of EPA and Littleson. All such modifications shall be made in

writing.

122. Nothing in this Decree shall be deemed to alter the Court's power to enforce, supervise or

approve modifications to this Consent Decree.

XXXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

123. This Consent Decree shall be lodged with the Court for a period of not less than thirty

(30) days for public notice and comment in accordance with Section 122(d)(2) of

CERCLA, 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the

right to withdraw or withhold its consent if the comments regarding the Consent Decree

disclose facts or considerations which indicate that the Consent Decree is inappropriate,

improper, or inadequate. The Settling Defendants consent to the entry of this Consent

Decree without further notice.

124. 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.

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XXXV. SIGNATORIES/SERVICE

125. Each undersigned representative of Littleson, Midvale City, or UPRR to this Consent

Decree and the Assistant Attorney General for the Environment and Natural Resources

Division of the Department of Justice hereby 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.

126. Each Settling Defendant hereby 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 such Settling Defendant in writing that it no longer supports entry of the Consent

Decree.

127. Each Settling Defendant shall identify, on the attached signature page, the name, address

and telephone number of an agent who is authorized to accept service of process by mail

on behalf of that Party with respect to all matters arising under or relating to this Consent

Decree. Each Settling Defendant hereby agrees to accept service in that manner and to

waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil

Procedure and any applicable local rules of this Court, including, but not limited to,

service of a summons. The Parties agree that no Settling Defendant need file an answer

to the complaint in this action unless or until the Court expressly declines to enter this

Consent Decree.

XXXVI. FINAL JUDGMENT

128. This Consent Decree and its appendices shall constitute the final, complete, and exclusive

agreement and understanding among the Parties with respect to 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 (including without limitation the representations,

agreements, or understandings set forth in the Midvale Slag Superfund Site Settlement

and Release Agreement between UPRR and Littleson).

129. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall

constitute a final judgment between and among the United States and Settling

Defendants. The Court finds that there is no just reason for delay and therefore enters this

judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

SO ORDERED THIS DAY OF , 2004.

BY THE COURT

TED STEWART

United States District Judge

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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v.

Littleson, Inc. et ai, relating to the Midvale Slag Superfund Site.

FOR THE UNITED STATES OF AMERICA

_, 2004

DATE THOMAS L. SANSONETTI

Assistant Attorney General

Environment and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

DA

,2004

ROBERT R. HOMIAK

Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

999 18th Street, Suite 945, North Tower

Denver, CO 80202-2449

DAT

°l , 2004

DAVID S. GUALTIERI

Environmental Defense Section

Environment & Natural Resources Division

U.S. Department of Justice

P. O. Box 23986

Washington, D.C. 20026-3986

-55-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v.

Littleson, Inc. et al., relating to the Midvale Slag Superfund Site.

^02004

CAROL RUSHIN

Assistant Regional Administrator, Region 8

U.S. Environmental Protection Agency

United Stated Environmental Protection Agency

999 18th Street, Suite 300

Denver, CO 80202-2466

,2004

KATHERINE J. TETER ' " X

Senior Enforcement Attorney, Region 8

U.S. Environmental Protection Agency

999 18th Street, Suite 300

Denver, CO 80202-2466

-56-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v.

Littleson. Inc.. et al, relating to the Midvale Slag Superfund Site.

2004

DAT

FOR LITTLESON, INy

EVIN R.

Counsel t/Littles^

LeBoeuf, Lamb,

136 S. Main, Suite"

Salt Lake City, Utah 84101

, 2004

DATE ROBERT L. SOEHNLEN

President

Littleson, Inc.

2100 East Bengal Blvd. #F203

Salt Lake City, UT 84121

Agent Authorized to Accept Service on Behalf of Above-signed Party:

Kevin R. Murray

1000 Keams Building

136 South Main Street

Salt Lake City, UT 84101-1685

Ph. Number: (801)320-6700

-57-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v.

Littleson, Inc., et al., relating to the Midvale Slag Superfund Site.

,2004

FOR MIDVALE CITY CORPORATION

JOANN B. SEGHINI

M^fyor

655 W. Center Street

Midvale, UT 84047

2004

APPROVE TO FORM AND LEGALITY

MAR'TIN PEZELY

Midvale City Attorney

655 W. Center Street

Midvale, UT 84047

Agent Authorized to Accept Service on Behalf of Above-signed Party:

Rori Clark

City Recorder

655 W. Center Street

Midvale, UT 84047

-58-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v.

Littleson, Inc., et al., relating to the Midvale Slag Superfund Site.

FOR UNION PACIFIC RAILROAD

COMPANY

, 2004

^DENNIS C. FARLE

Lear & Lear, LLP

Attorneys for UPRR

299 South Main, Suite 2200

Wells Fargo Center

Salt Lake City, UT 84111

Fax: (801)538-5001

, 2004

UwreoceEWzwek E. WZOREtf

Assistant Vice President-Law UPRR

1400 Douglas Street

Omaha, NE 68179

Agent Authorized to Accept Service on Behalf of Above-signed Party:

David P. Young

Counsel to UPRR

1400 Douglas Street

Omaha, NE 68179

Fax: (402)271-7107

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