exv10w1






Exhibit 10.1




UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN




	 	 	 
	 
	 	 
	UNITED STATES OF AMERICA and the
STATE OF WISCONSIN
	 
	 	 
	Plaintiffs,
	 	 
	 	 
	v.

	 	CIVIL ACTION NO. 03-C-0949
	 
	 	 
	P. H. GLATFELTER COMPANY and WTM I
COMPANY (f/k/a Wisconsin Tissue
Mills Inc.),


	 	The Honorable Lynn Adelman
	 	 
	
Defendants.

	 	 






AMENDED CONSENT DECREE

FOR REMEDIAL DESIGN AND REMEDIAL ACTION AT OPERABLE UNIT 1 OF

THE LOWER FOX RIVER AND GREEN BAY SITE




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 
	 	 	 	 
	I. BACKGROUND
	 	 	1	 
	II. JURISDICTION
	 	 	4	 
	III. PARTIES BOUND
	 	 	4	 
	IV. DEFINITIONS
	 	 	5	 
	V. GENERAL PROVISIONS
	 	 	13	 
	VI. ESTABLISHMENT AND USE OF CERTAIN SITE-SPECIFIC ACCOUNTS
	 	 	15	 
	VII. PERFORMANCE OF THE RESPONSE WORK BY SETTLING DEFENDANTS
	 	 	19	 
	VIII. POST-REMEDY RESPONSE WORK AND REMEDY REVIEW
	 	 	26	 
	IX. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS
	 	 	28	 
	X. ACCESS AND INSTITUTIONAL CONTROLS
	 	 	31	 
	XI. REPORTING REQUIREMENTS
	 	 	36	 
	XII. RESPONSE AGENCIES’ APPROVAL OF PLANS AND OTHER SUBMISSIONS
	 	 	41	 
	XIII. PROJECT COORDINATORS
	 	 	44	 
	XIV. CERTIFICATION OF COMPLETION
	 	 	45	 
	XV. EMERGENCY RESPONSE
	 	 	48	 
	XVI. NATURAL RESOURCE RESTORATION EFFORTS
	 	 	49	 
	XVII. PAYMENTS
	 	 	51	 
	XVIII. INDEMNIFICATION AND INSURANCE
	 	 	61	 
	XIX. FORCE MAJEURE EVENTS
	 	 	64	 
	XX. DISPUTE RESOLUTION
	 	 	66	 
	XXI. STIPULATED PENALTIES AND STIPULATED DAMAGES
	 	 	71	 
	XXII. COVENANTS NOT TO SUE BY PLAINTIFFS
	 	 	77	 
	XXIII. COVENANTS BY SETTLING DEFENDANTS
	 	 	83	 
	XXIV. [DELETED]
	 	 	86	 
	XXV. EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
	 	 	86	 
	XXVI. ACCESS TO INFORMATION
	 	 	89	 
	XXVII. RETENTION OF RECORDS
	 	 	90	 
	XXVIII. NOTICES AND SUBMISSIONS
	 	 	92	 
	XXIX. EFFECTIVE DATE
	 	 	94	 
	XXX. RETENTION OF JURISDICTION
	 	 	94	 
	XXXI. APPENDICES
	 	 	95	 
	XXXII. COMMUNITY RELATIONS
	 	 	95	 
	XXXIII. MODIFICATION
	 	 	96	 
	XXXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
	 	 	96	 
	XXXV. SIGNATORIES/SERVICE
	 	 	97	 
	XXXVI. FINAL JUDGMENT
	 	 	98	 






i









 






TABLE OF APPENDICES




	 	 	 
	 
	 	 
	Appendix A

	 	Trustee Council Resolution relating to this Consent Decree
	 
	 	 
	Appendix B

	 	Appendix addressing Management of the Disbursement Special Account
	 
	 	 
	Appendix C

	 	Appendix addressing Escrow Account Management
	 
	 	 
	Appendix D

	 	Form of Escrow Agreement (including Amendments thereto)
	 
	 	 
	Appendix E

	 	Appendix addressing Special Procedures for Restoration Work
	 
	 	 
	Appendix F

	 	Administrative Order on Consent between WTM I Company, EPA, and
WDNR, captioned In the matter of the Lower Fox River and the
Green Bay Site, Docket No. V-W’03-C-745 (including the Statement
of Work for Remedial Design)
	 
	 	 
	Appendix G

	 	Map of Operable Unit 1
	 
	 	 
	Appendix H

	 	Record of Decision for Operable Units 1 and 2 and Record of
Decision Amendment for Operable Unit 1
	 
	 	 
	Appendix I

	 	Statement of Work for the Remedial Action
	 
	 	 
	Appendix J

	 	Form of EPA Payment Directive






ii









 






AMENDED CONSENT DECREE

FOR REMEDIAL DESIGN AND REMEDIAL ACTION AT OPERABLE UNIT 1 OF

THE LOWER FOX RIVER AND GREEN BAY SITE




I. BACKGROUND




     A. The United States of America (“United States”), on behalf of the Administrator of the
United States Environmental Protection Agency (“EPA”), and the State of Wisconsin (the ”State”), on
behalf of the Wisconsin Department of Natural Resources (“WDNR”), filed a Complaint in this matter
pursuant to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. §§ 9606 and 9607.



     B. The Plaintiffs’ Complaint seeks, inter alia: (i) reimbursement of certain
costs incurred by the United States and the State for response actions at the Lower Fox River and
Green Bay Site (the “Site,” as defined below) in Northeastern Wisconsin, together with accrued
interest; and (ii) performance of response work by the defendants at Operable Unit 1 (“OU1,” as
defined below) of the Site consistent with the National Contingency Plan, 40 C.F.R. Part 300 (as
amended) (the “NCP”).



     C. In accordance with the NCP and Section 121(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F),
the State was notified of negotiations with potentially responsible parties regarding the
implementation of the remedial design and the remedial action for OU1. The State has been an
active participant in such negotiations and is a party to this Consent Decree.



     D. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA has notified
the appropriate natural resource trustees (the “Trustees”), as represented by the Fox River/Green
Bay Natural Resource Trustee Council, of negotiations with potentially responsible parties
regarding the releases of hazardous substances that may have resulted in injuries to



1









 




natural
resources under Federal, State, and Tribal trusteeship at the Site. The Trustees have
participated in the negotiation of this Consent Decree, and support this Consent Decree, as
indicated by the Trustee Council Resolution attached to this Consent Decree as Appendix A.




     E. EPA, WDNR, and the Trustees are parties to several Site-specific Memoranda of Agreement, as
“Inter-Governmental Partners” sharing a “mutual goal of remediating and/or responding to hazardous
substances releases and threats of releases to, and restoring injured and potentially injured
natural resources in, [the Site area].” The Inter-Governmental Partners’ founding Memorandum of
Agreement recognized that WDNR would have “a leadership role, in full partnership with EPA, in
exercising response authority” at the Site, and the Plaintiffs intend to continue that cooperative
relationship as to actions required under this Consent Decree.



     F. The defendants that have entered into this Consent Decree (“Settling Defendants,” as
defined below) do not admit any liability to the Plaintiffs, to the Trustees, or to any other party
arising out of the transactions or occurrences alleged in the Complaint, 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.



     G. In response to a release or a substantial threat of a release of a hazardous substance(s)
at or from the Site, WDNR in 1998 commenced a Remedial Investigation and Feasibility Study
(“RI/FS”) for the Site pursuant to 40 C.F.R. § 300.430, with funding and technical assistance from
EPA. In December 2002, WDNR completed a Remedial Investigation (“RI”) Report and a Final
Feasibility Study (“FS”) for the Site.



     H. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, notice of the completion of the FS and
of the proposed plan for remedial action was published in major local newspapers of general
circulation in the Fox River Valley. WDNR and EPA provided an opportunity for



2









 




written and oral
comments from the public on the proposed plan for remedial action. A copy of
the transcript of the public meeting is available to the public as part of the administrative
record upon which WDNR and EPA based the selection of the response action.




     I. The decision by WDNR and EPA on the remedial action to be implemented at OU1 at the Site is
embodied in a Record of Decision, executed by WDNR and EPA in December 2002 (the “2002 ROD”) and a
Record of Decision Amendment, executed by WDNR and EPA in June 2008 (the “2008 ROD Amendment”).
The 2002 ROD and the 2008 ROD Amendment both include an explanation of significant differences
between the final remedial action plan and the proposed plan as well as a responsiveness summary to
the public comments. Notice of the 2002 ROD and the 2008 ROD Amendment was published in accordance
with Section 117(b) of CERCLA. As specified below, the 2002 ROD and the 2008 ROD Amendment are
collectively referred to herein as the “ROD.”



     J. Based on the information presently available to EPA and WDNR, EPA and WDNR believe that the
Response Work (as defined below) will be properly and promptly conducted by the Settling Defendants
if conducted in accordance with the requirements of this Consent Decree and its appendices.



     K. Solely for the purposes of Section 113(j) of CERCLA, the remedial action selected by the
ROD and the Response Work to be performed by the Settling Defendants shall constitute a response
action taken or ordered by the President.



     L. The Parties recognize, and the Court by entering this Consent Decree finds, that this
Consent Decree has been negotiated by the Parties in good faith and implementation of this Consent
Decree will expedite the cleanup of OU1 and will avoid prolonged and complicated



3









 




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




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



II. JURISDICTION




     1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§
1331 and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has personal jurisdiction
over the Settling Defendants. Solely for the purposes of this Consent Decree and the underlying
Complaint, Settling Defendants waive all objections and defenses that they may have 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 and is binding upon the United States and the State and upon
Settling Defendants and their successors and assigns. Any change in ownership or corporate status
of a Settling Defendant including, but not limited to, any transfer of assets or real or personal
property, shall in no way alter such Settling Defendant’s responsibilities under this Consent
Decree.



     3. Settling Defendants shall provide a copy of this Consent Decree to each contractor hired to
perform the Response Work required by this Consent Decree and to each person representing any
Settling Defendant with respect to OU1 or the Response Work and shall condition all contracts
entered into hereunder upon performance of the Response Work in conformity with the terms of this
Consent Decree. Settling Defendants or their contractors shall provide written notice of the
Consent Decree to all subcontractors hired to perform any portion



4









 




of the Response Work required by
this Consent Decree. Settling Defendants shall nonetheless be responsible for ensuring that their
contractors and subcontractors perform the Response 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 the Settling Defendants within the meaning of Section
107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).




IV. DEFINITIONS




     4. Unless otherwise expressly provided herein, terms used in this Consent Decree which are
defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to
them in CERCLA or in such regulations. Whenever terms listed below are used in this Consent Decree
or in the appendices attached hereto and incorporated hereunder, the following definitions shall
apply:



     “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. §§ 9601-9675.



     “Consent Decree” shall mean this Amended Consent Decree and all appendices attached hereto
(listed in Section XXXI). In the event of conflict between this Amended Consent Decree and any
appendix, this Amended Consent Decree shall control.



     “Day” shall mean a calendar day unless expressly stated to be a working day. “Working day”
shall mean a day other than a Saturday, Sunday, or Federal holiday. In computing any period of
time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or Federal
holiday, the period shall run until the close of business of the next working day.



5









 





     “Date of Lodging” shall mean October 1, 2003, the day on which the original version of the
Consent Decree was lodged with the Court. “Date of Lodging of the Amended Consent Decree” shall
mean the day on which the Amended Consent Decree is lodged with the Court.



     “DOI” shall mean the United States Department of the Interior and any successor departments or
agencies of the United States.



     “DOI Past Cost Payments” shall mean the payments to be made to the DOI NRDAR Fund under
Subparagraph 52.a.(ii) (Initial Payments to the United States) of this Consent Decree
to reimburse DOI for a portion of its past natural resource damage assessment costs related to
the Site.



     “DOJ” shall mean the United States Department of Justice and any successor departments or
agencies of the United States.



     “Effective Date” shall be the effective date of this Consent Decree as provided by
Section XXIX.



     “EPA” shall mean the United States Environmental Protection Agency and any successor
departments or agencies of the United States.



     “EPA Past Cost Payments” shall mean the payments to be made to the Fox River Site Special
Account within the EPA Hazardous Substance Superfund under Subparagraph 52.a.(i) (Initial
Payments to the United States) of this Consent Decree to reimburse EPA for a portion of its past
response costs related to the Site.



     “Force Majeure Event,” for purposes of this Consent Decree, shall mean any event arising
from causes beyond the control of the Settling Defendants, of any entity controlled by Settling
Defendants, or of Settling Defendants’ contractors or subcontractors, that delays or prevents
the performance of any obligation under this Consent Decree despite Settling



6









 




Defendants’ best
efforts to fulfill the obligation. The requirement that the Settling Defendants 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 (i) as it is occurring and (ii) following the potential Force Majeure Event, such that
the delay is minimized to the greatest extent possible.




     “Fox River OU1 Disbursement Special Account” or the “Disbursement Special Account” shall mean
the disbursement special account established for OU1 by EPA pursuant to Section 122(b)(3) of
CERCLA, 42 U.S.C. § 9622(b)(3), and this Consent Decree.



     “Fox River Site Special Account” shall mean the special account established for the Site by
EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).



     “Fox River OU1 Escrow Account” or the “Escrow Account” shall mean the escrow account
trust fund established for OU1 by the Settling Defendants pursuant to this Consent Decree.



     “Institutional Controls” shall mean all response activities to implement institutional
control requirements under the ROD.



     “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 Disbursement Special Account,
which shall be computed monthly at a rate based on the annual return on investments



7









 




of the
Hazardous Substance Superfund. The applicable rate of interest shall be the rate in effect at the
time the interest accrues.




     “July 2003 AOC” shall mean the Administrative Order on Consent between WTM I Company, EPA, and
WDNR, captioned In the matter of the Lower Fox River and the Green Bay Site, Docket No.
V-W-’03-C-745 (the “July 2003 AOC”). The July 2003 AOC is attached hereto as Appendix F.



     “Long Term Monitoring” shall mean all response activities to implement long term
monitoring requirements under the ROD.



     “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.



     “NRD Commitment” shall mean the $3,000,000 committed to natural resource
restoration efforts under Paragraph 52 (Initial Payments to Plaintiffs) and Paragraph 53
(Subsequent Payments for Natural Resource Restoration).



     “NRDAR Fund” shall mean DOI’s Natural Resource Damage Assessment and Restoration
Fund.



     “Operation and Maintenance” or “O & M” shall mean all activities required to maintain the
effectiveness of the Remedial Action as required under the Operation and Maintenance Plan
approved or developed by the Response Agencies pursuant to this Consent Decree and the Statements
of Work.



     “Operable Unit 1” or “OU1” shall mean the Little Lake Butte des Morts reach of the Lower Fox
River, as delineated by the Record of Decision signed by WDNR and EPA in December 2002. More
specifically, OU1 is the portion of the Lower Fox River (and the



8









 




underlying River sediment)
starting at the outlet of Lake Winnebago at the Neenah Dam and the Menasha Dam downstream to the
Upper Appleton Dam, including sediment deposits A through H and POG. As so defined, OU1 is depicted
in Figure 7-9 of the December 2002 Final Feasibility Study for the Site, a copy of which is
attached hereto as Appendix G.




     “Paragraph” shall mean a portion of this Consent Decree identified by an Arabic numeral or an
upper case letter.



     “Parties” shall mean the United States, the State of Wisconsin, and the Settling
Defendants.



     “Performance Standards” shall mean the selected remedy requirements and cleanup standards
for measuring the achievement of the goals of the Remedial Action, as set forth in Section XI
of the 2008 ROD Amendment and Section II of the SOW for Remedial Action.



     “Plaintiffs” shall mean the United States and the State of Wisconsin.



     “Post-Remedy Institutional Controls Work” shall mean all response activities to implement
institutional controls requirements under the ROD and the Institutional Controls Plan after
Certification of Completion of Remedial Action by EPA pursuant to Subparagraph 44.b.



     “Post-Remedy Monitoring” shall mean all response activities to implement Long Term
Monitoring requirements under the ROD and the Final Operation and Maintenance Plan after
Certification of Completion of Remedial Action by EPA pursuant to Subparagraph 44.b.



     “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).



     “Record of Decision” or “ROD” shall mean, collectively: (i) the Record of Decision relating
to OU1 at the Site signed in December 2002 by the Deputy Administrator of the Water Division of
WDNR and by the Director of the Superfund Division of EPA Region 5, and all



9









 




attachments thereto
(hereinafter referred to as the “2002 ROD”); and (ii) the Record of Decision Amendment relating to
OU1 at the Site signed in June 2008 by the Deputy Administrator of the Water Division of WDNR and
by the Director of the Superfund Division of EPA Region 5, and all attachments thereto (hereinafter
referred to as the “2008 ROD Amendment”). A copy of the 2002 ROD (excluding the ROD Appendices) is
attached as Appendix H and a copy of the 2008 ROD Amendment (excluding the ROD Appendices) is
attached as Appendix H1. To the extent that there is any inconsistency between the 2002 ROD and
the 2008 ROD Amendment, the 2008 ROD Amendment shall govern.




     “Remedial Action” shall mean those activities (except for Operation and Maintenance,
Post-Remedy Institutional Controls Work, and Post-Remedy Monitoring), to be undertaken by the
Settling Defendants to implement the ROD requirements for OU1, in accordance with the SOW, the
final Remedial Design Work Plan, the final Remedial Action Work Plan, and other plans approved by
the Response Agencies. For the purpose of this Consent Decree, Remedial Action shall not include
any response action required solely under Section XV (Emergency Response).



     “Remedial Action Work Plan” shall mean the document developed pursuant to Paragraph 14 of
this Consent Decree and approved by the Response Agencies, and any amendments thereto.



     “Remedial Design” shall mean those activities to be undertaken by Settling Defendant WTM I
Company to conduct predesign investigations and to develop the final plans and specifications for
the Remedial Action for OU1 pursuant to the July 2003 AOC and the Remedial Design Work Plan.



10









 





     “Remedial Design Work Plan” shall mean the document described by Paragraph 12 of this Consent
Decree and approved by the Response Agencies, and any amendments thereto.



     “Response Agencies” shall mean WDNR and EPA.



     “Response Work” shall mean all activities Settling Defendants are required to perform under
this Consent Decree, except those required by Section XVI (Natural Resource Restoration Efforts)
and Section XXVII (Retention of Records).



     “Section” shall mean a portion of this Consent Decree identified by a roman numeral.



     “Settling Defendants” shall mean P. H. Glatfelter Company and WTM I Company.



     “Settling Defendants’ Related Parties” shall mean: (i) Settling Defendants’ successors, but
only to the extent that the alleged liability of such person is based on the alleged liability of a
Settling Defendant; (ii) Settling Defendants’ former or current officers, directors,
employees, or shareholders, but only to the extent that the alleged liability of such person is
based on acts and/or omissions which occurred in the scope of the person’s employment or capacity
as an officer, director, employee, or shareholder of a Settling Defendant.



     “Site” shall mean the Lower Fox River and Green Bay Site in Northeastern Wisconsin.



     “Specified Future Response Costs” shall mean all costs, including, but not limited to, direct
and indirect costs, that the United States and the State incur after July 1, 2003 in reviewing or
developing plans, reports and other items pursuant to the July 2003 AOC and this Consent Decree, in
verifying the Response Work, in implementing O&M, Institutional Controls, and Long Term Monitoring
requirements required under the ROD and the SOW, or in otherwise implementing, overseeing, or
enforcing this Consent Decree, including, but not limited to, payroll costs, contractor costs,
travel costs, laboratory costs, the costs incurred pursuant to Paragraph 19 of Section VIII,
Section X (including, but not limited to, the cost of attorney



11









 




time and any monies paid to secure
access and/or to secure or implement Institutional Controls including, but not limited to, the
amount of just compensation), Section XV, and Paragraph 90 of Section XXII.




     “State” shall mean the State of Wisconsin.



     “State Past Cost Payments” shall mean the $10,000 payment to be made to the State under
Subparagraph 52.b (Initial Payments to the State) of this Consent Decree to reimburse the State for
a portion of its past response costs related to the Site.



     “Statements of Work” or “SOW” shall mean: (i) the statement of work for implementation of the
Remedial Design, as set forth at Appendix F to this Consent Decree, and any modifications made in
accordance with the July 2003 AOC and this Consent Decree; and/or



     (ii) the statement of work for implementation of the Remedial Action, Institutional Controls,
Long Term Monitoring, and Operation and Maintenance at the Site, as set forth in Appendix I to this
Consent Decree and any modifications made in accordance with this Consent Decree.



     “Supervising Contractor” shall mean the principal contractor retained by the Settling
Defendants to supervise and direct the implementation of the Response Work under this Consent
Decree.



     “United States” shall mean the United States of America.



     “Unresolved DOI Past Costs” shall mean the unreimbursed natural resource damage assessment
costs that the United States has paid at or in connection with the Site (or any portion of the
Site) through July 1, 2003.



12









 





     “Unresolved EPA Past Costs” shall mean the unreimbursed response costs, including, but not
limited to, direct and indirect costs, that the United States has paid at or in connection with the
Site (or any portion of the Site) through July 1, 2003.



     “Unresolved State Past Costs” shall mean the unreimbursed response costs, including, but not
limited to, direct and indirect costs, that the State has paid at or in connection with the Site
(or any portion of the Site) through July 1, 2003.



     “Waste Material” shall mean: (i) any “hazardous substance” under Section 101(14) of CERCLA,
42 U.S.C. § 9601(14); (ii) any pollutant or contaminant under Section 101(33), 42 U.S.C. §
9601(33); (iii) any “solid waste” under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); and (iv)
any “hazardous substance” under Wis. Stat. § 292.01.



     “WDOJ” shall mean the Wisconsin Department of Justice and any successor departments or
agencies of the State.



     “WDNR” shall mean the Wisconsin Department of Natural Resources and any successor departments
or agencies of the State.



V. GENERAL PROVISIONS




     5. Objectives of the Parties. The objectives of the Parties in entering into this
Consent Decree are to protect public health and welfare and the environment by the design and
implementation of certain response actions at OU1 by the Settling Defendants, to reimburse a
portion of the EPA and State past costs and to reimburse all Specified Future Response Costs, to
provide partial compensation for natural resource damages, and to resolve the claims of Plaintiffs
against Settling Defendants as provided in this Consent Decree.



     6. Commitments by Settling Defendants. Settling Defendants shall finance and perform
the Response Work in accordance with this Consent Decree, the ROD, the SOW, and all



13









 




work plans and
other plans, standards, specifications, and schedules set forth herein or developed by Settling
Defendants and approved by the Response Agencies pursuant to this Consent Decree. Settling
Defendants shall also reimburse EPA and the State for a portion of their past response costs and
shall reimburse EPA and the State for future response costs, as provided by this Consent Decree.
Settling Defendants shall also provide partial compensation for natural resource damages, as
provided herein.




     7. Compliance With Applicable Law. All activities undertaken by Settling Defendants
pursuant to this Consent Decree shall be performed in accordance with the requirements of all
applicable federal and state laws and regulations. Settling Defendants must also comply with all
applicable or relevant and appropriate requirements of all Federal and state environmental laws as
set forth in the ROD and the SOW, unless the Response Agencies determine that there are grounds for
invoking a waiver under 40 C.F.R. § 300.430(f)(1)(ii)(C).



     The activities conducted pursuant to this Consent Decree, if approved by the Response
Agencies, shall be considered to be necessary and consistent with the NCP.



     8. Permits.



          a. As provided in Section 121(e) of CERCLA and Section 300.400(e) of the NCP, no permit shall
be required for any portion of the Response 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 Response Work). Where any portion of the Response Work that is not on-site
requires a federal or state permit or approval, Settling Defendants shall submit timely and
complete applications and take all other actions necessary to obtain all such permits or approvals.





14









 








          b. The Settling Defendants may seek relief under the provisions of Section XIX (Force Majeure
Events) of this Consent Decree for any delay in the performance of the Response Work resulting from
a failure to obtain, or a delay in obtaining, any permit required for the Response Work.




          c. This Consent Decree is not, and shall not be construed to be, a permit issued pursuant to
any federal or state statute or regulation.




VI. ESTABLISHMENT AND USE OF CERTAIN SITE-SPECIFIC ACCOUNTS




     9. Generally. As provided by this Section and Appendices B and C, two separate
Site-specific accounts B to be known as the Fox River OU1 Disbursement Special Account (the
“Disbursement Special Account”) and the Fox River OU1 Escrow Account (the “Escrow Account”) B shall
be established and managed to provide sources of funds for payment and reimbursement of particular
categories of Site-related response costs and natural resource restoration costs, as specified by
Paragraphs 10 and 11. The Escrow Account may be established as several accounts or sub-accounts to
address the different sources and uses of the funds paid
into the Escrow Account. The response costs to be paid and reimbursed from the Disbursement
Special Account and the Escrow Account are expected to include, but will not be limited to, certain
costs incurred by the Settling Defendants that are defined herein as “Allowable RD/RA Costs.” The
natural resource restoration costs to be paid and reimbursed from the Escrow Account may include,
but will not be limited to, certain costs incurred by the Settling Defendants that are defined
herein as “Allowable Restoration Work Costs.” The Escrow Account shall serve as a form of
financial assurance for performance of Settling Defendants’ obligations under this Consent Decree,
but Settling Defendants’ performance obligations shall not be limited by the availability of funds
in the Escrow Account at any time.



15









 





          a. Allowable RD/RA Costs. Solely for the purpose of this Consent Decree, the term
“Allowable RD/RA Costs” is defined as necessary response costs incurred and paid by Settling
Defendants for the Remedial Design and the Remedial Action, excluding the following costs that
shall not be eligible for payment or reimbursement as Allowable RD/RA Costs:





     (1) any costs exceeding $2 million for the contaminant delineation
investigation and Remedial Design components of the Response Work, as provided by
Subparagraph 8.a of Appendix C;




     (2) response costs incurred or paid by the Settling Defendants pursuant to
Section XV (Emergency Response);




     (3) any other payments made by Settling Defendants to the Plaintiffs pursuant
to this Consent Decree, including, but not limited to: (i) any direct payments to
Plaintiffs under Section XVII; and (ii) any interest, stipulated penalties, or
stipulated damages paid pursuant to Section XXI;




     (4) attorneys’ fees and costs;




     (5) costs of any response activities Settling Defendants perform that are not
required under, or approved by the Response Agencies pursuant to this Consent
Decree;




     (6) costs related to Settling Defendants’ litigation, settlement, development
of potential contribution claims or identification of defendants;




     (7) internal costs of Settling Defendants, including but not limited to,
salaries, travel, or in-kind services, except for those costs that represent the
work of employees of Settling Defendants directly performing the Remedial Design or
the Remedial Action;



16









 






     (8) any costs incurred by Settling Defendants prior to the Effective Date,
except for: (i) Remedial Design work approved by the Response Agencies; or (ii)
other costs of Response Work required by this Consent Decree after the Date of
Lodging; or




     (9) any costs incurred by Settling Defendants pursuant to Section XX (Dispute
Resolution).



          b. Allowable Restoration Work Costs. Solely for the purpose of this Consent Decree,
the term “Allowable Restoration Costs” is defined as necessary restoration costs incurred and paid
by Settling Defendants for Approved Restoration Work (as defined by Paragraph 48), excluding the
following costs that shall not be eligible for payment or reimbursement as Allowable Restoration
Work Costs:





     (1) any costs for work other than Approved Restoration Work;




     (2) any costs exceeding the pre-approved cost ceiling set by the Statement of
Work for Approved Restoration Work;




     (3) any other payments made by Settling Defendants to the Plaintiffs pursuant
to this Consent Decree, including, but not limited to: (i) any direct payments to
Plaintiffs under Section XVII; and (ii) any interest, stipulated penalties, or
stipulated damages paid pursuant to Section XXI;




     (4) attorneys’ fees and costs;




     (5) costs of any restoration activities Settling Defendants perform that are
not required under, or approved by the Plaintiffs pursuant to, this Consent Decree;



17









 






     (6) costs related to Settling Defendants’ litigation, settlement, development
of potential contribution claims or identification of defendants;




     (7) internal costs of Settling Defendants, including but not limited to,
salaries, travel, or in-kind services, except for those costs that represent the
work of employees of Settling Defendants directly performing Approved Restoration
Work;




     (8) any costs incurred by Settling Defendants prior to the Effective Date,
except for Approved Restoration Work completed pursuant to this Consent Decree; or




     (9) any costs incurred by Settling Defendants pursuant to Section XX (Dispute
Resolution).



     10. Establishment and Management of the Disbursement Special Account. In accordance
with the procedures and requirements established by the December 2001 Consent Decree in the matter
captioned United States and the State of Wisconsin v. Appleton Papers Inc. and NCR Corporation,
Case No. 01-C-0816 (E.D. Wis.) (the “API/NCR Decree”), the Plaintiffs shall use their best efforts
to have $10 million available for funding response action projects
under the API/NCR Decree deposited in the Disbursement Special Account after the Effective
Date. EPA shall establish the Disbursement Special Account as a new special account within the EPA
Hazardous Substance Superfund. Subject to the terms and conditions set forth in this Consent
Decree, EPA agrees to make those funds in the Disbursement Special Account, including Interest
Earned on those funds in the Special Account, available for disbursement to the Escrow Account as
partial reimbursement of certain Allowable RD/RA Costs. The



18









 




Disbursement Special Account shall be
managed as set forth in Appendix B to this Consent Decree, which is incorporated herein by
reference.




     11. Establishment and Management of the Escrow Account. By no later than March 31,
2004, the Settling Defendants shall establish and maintain financial security in the form of the
Escrow Account trust fund, from which funds shall be disbursed for payment and reimbursement of
particular categories of Site-related response costs and natural resource restoration costs. The
Settling Defendants shall establish and maintain the Escrow Account with the funds required to be
paid pursuant to Section XVII (Payments) below. The Escrow Account shall be managed as set forth
in Appendix C to this Consent Decree, which is incorporated herein by reference. The escrow
agreement establishing the Escrow Account shall be in substantially the form attached hereto as
Appendix D and shall identify the manager for the Escrow Account (the “Escrow Agent”). The Settling
Defendants may establish the Escrow Account (or an account or sub-account within the Escrow
Account) as a Qualified Settlement Fund (or “QSF”) within the meaning of 468B-1 of the Treasury
Regulations.



VII. PERFORMANCE OF THE RESPONSE WORK BY SETTLING DEFENDANTS




     12. OU1 Remedial Design.



          a. Settling Defendant WTM I Company shall perform the Remedial Design components of the
Response Work (including predesign investigations) in accordance with the
July 2003 AOC and the 2008 ROD Amendment. A copy of the July 2003 AOC is attached as Appendix
F to this Consent Decree, is incorporated herein by this reference, and all requirements under the
July 2003 AOC are hereby made enforceable requirements of this Consent Decree, but only as to
Settling Defendant WTM I Company.




19









 








          b. Settling Defendant WTM I Company shall submit the following plans and reports to the
Response Agencies pursuant to the July 2003 AOC and this Paragraph: (i) a Pre-Design Sampling Work
Plan; (ii) a Remedial Design Work Plan; (iii) a Basis of Design Report; (iv) a Preliminary (50%)
Design; (v) a Pre-Final (90%) Design; and (vi) a Final (100%) Design. Upon approval by the Response
Agencies, all submittals required by the July 2003 AOC and this Paragraph 12 shall be incorporated
into and become enforceable under this Consent Decree.




          c. Settling Defendant WTM I Company shall provide Settling Defendant P. H. Glatfelter Company
with copies of the plans and reports identified in the preceding Subparagraph contemporaneously
with their submission to the Response Agencies. Within 15 days of the date of submission, Settling
Defendant P. H. Glatfelter may submit written comments on the relevant plan or submission;
provided, however, that nothing in this Paragraph shall be construed as affording
Settling Defendant P. H. Glatfelter Company a right to invoke or participate in any dispute
resolution process under Section XX (Dispute Resolution) concerning any submittal under the July
2003 AOC.




     13. Selection of Supervising Contractor.



          a. All Remedial Design components of the Response Work to be performed by Settling Defendant
WTM I Company pursuant to Paragraph 12 of this Consent Decree shall be under the direction and
supervision of WTM I Company’s Project Coordinator designated pursuant to the July 2003 AOC. All
other aspects of the Response Work to be performed by Settling Defendants pursuant to Sections VII
(Performance of the Response Work by Settling
Defendants), VIII (Post-Remedy Response Work and Remedy Review), IX (Quality Assurance,
Sampling and Data Analysis), and XV (Emergency Response) of this Consent Decree shall be under the
direction and supervision of the Settling Defendants’ Supervising Contractor,





20









 







the selection of
which shall be subject to disapproval by the Response Agencies. Within 10 days after Settling
Defendant WTM I Company’s submittal of the Pre-Final (90%) Design, Settling Defendants shall notify
the Response Agencies in writing of the name, title, and qualifications of any contractor proposed
to be the Supervising Contractor. The Response Agencies will issue a notice of disapproval or an
authorization to proceed. If at any time thereafter, Settling Defendants propose to change a
Supervising Contractor, Settling Defendants shall give such notice to the Response Agencies and
must obtain an authorization to proceed from the Response Agencies before the new Supervising
Contractor performs, directs, or supervises any Response Work under this Consent Decree.




          b. If the Response Agencies disapprove a proposed Supervising Contractor, the Response
Agencies will notify Settling Defendants in writing. Settling Defendants shall submit to the
Response Agencies a list of contractors, including the qualifications of each contractor, that
would be acceptable to them within 30 days of receipt of the Response Agencies’ disapproval of the
contractor previously proposed. The Response Agencies will provide written notice of the names of
any contractors that they disapprove and an authorization to proceed with respect to any of the
other contractors. Settling Defendants may select any contractor from that list that is not
disapproved and shall notify the Response Agencies of the name of the contractor selected within 21
days of the Response Agencies’ authorization to proceed.




          c. If the Response Agencies fail to provide written notice of their authorization to proceed
or disapproval as provided in this Paragraph and this failure prevents the Settling Defendants from
meeting one or more deadlines in a plan approved by the Response
Agencies pursuant to this Consent Decree, Settling Defendants may seek relief under the
provisions of Section XIX (Force Majeure Events).




21









 








     14. OU1 Remedial Action. The Settling Defendants shall perform all requirements under
this Paragraph 14 until the Performance Standards are achieved and for so long thereafter as is
otherwise required under this Consent Decree. The Settling Defendants shall commence and continue
performance of the Remedial Action in accordance with the 2008 ROD Amendment upon the Date of
Lodging of the Amended Consent Decree.



          a. The requirements under this Paragraph 14 shall be performed by Settling Defendants with
funding from the following sources:





     (1) To the extent such funds are available in the Disbursement Special Account,
the Settling Defendants shall be entitled to seek disbursement from the Disbursement
Special Account for reimbursement of Allowable RD/RA Costs.




     (2) To the extent such funds are available in the Escrow Account and not
earmarked or disbursed for other purposes under this Consent Decree, the Settling
Defendants shall be entitled to seek disbursements from the Escrow Account for
payment or reimbursement of Allowable RD/RA Costs.




     (3) If funds are not available in the Escrow Account, or if all funds in the
Escrow Account have been earmarked or disbursed for other purposes under the Consent
Decree, Settling Defendants shall continue to fund and perform all requirements
under this Paragraph 14 until the Performance Standards are achieved and for so long
thereafter as is otherwise required under the Consent Decree.



          b. Within 90 days after the approval of the Final Design submittal described by the Statement
of Work appended to the July 2003 AOC, but no earlier than 30 days after the
Effective Date, the Settling Defendants shall submit to the Response Agencies a work plan for





22











 




the performance of the Remedial Action (the “Remedial Action Work Plan”). The Remedial Action
Work Plan shall provide for construction and implementation of the remedy set forth in the ROD such that the Performance
Standards will be achieved, in accordance with this Consent Decree, the ROD, the SOW, and the design plans and specifications
developed by Settling Defendant WTM I Company under Paragraph 12 and approved by the Response Agencies. Upon its approval
by the Response Agencies, the Remedial Action Work Plan shall be incorporated into and become enforceable under this Consent Decree.




          c. The Remedial Action Work Plan shall include the following: (i) an updated schedule for
implementing all Remedial Action tasks identified in the final design submittal, incorporating any
refinements to the Final Project Schedule submitted under the July 2003 AOC and Paragraph 12; (ii)
any refinements to the Final Health and Safety Plan, the Final Contingency Plan, the Final Sediment
Removal Verification Plan, and the Capital and Operation and Maintenance Cost Estimate submitted
under the July 2003 AOC and Paragraph 12; (iii) a Final Construction Quality Assurance Project
Plan; (iv) an Institutional Controls Plan; (v) a Final Operation and Maintenance Plan (including a
plan for Long Term Monitoring); (vi) a schedule for submitting any other Remedial Action Plans; and
(vii) the initial formulation of the Settling Defendants’ Remedial Action Project Team (including,
but not limited to, the Supervising Contractor).




          d. Upon approval of the Remedial Action Work Plan by the Response Agencies, Settling
Defendants shall perform the activities required under the Remedial Action Work Plan. The Settling
Defendants shall submit to the Response Agencies 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 Section XII (Response Agencies’






23









 







Approval of Plans and Other
Submissions). Unless otherwise directed by the Response Agencies, Settling Defendants shall not
commence physical Remedial Action activities at OU1 prior to approval of the Remedial Action Work
Plan. The Settling Defendants shall implement the Remedial Action as set forth in the approved
Remedial Action Work Plan until the Performance Standards are achieved.




          e. After Certification of Completion of Remedial Action by EPA pursuant to Subparagraph 44.b,
the Settling Defendants shall continue to implement the Institutional
Controls Plan and the Final Operation and Maintenance Plan for so long as required by those
plans.




     15. Modification of the SOW or Related Work Plans.



          a. Subject to Subparagraph 15.c below, if the Response Agencies determine that modification to
the work specified in the SOW and/or in work plans developed pursuant to the SOW is necessary to
achieve and maintain the Performance Standards or to carry out and maintain the effectiveness of
the remedy set forth in the ROD, the Response Agencies may require that such modification be
incorporated in the SOW and/or such work plans; provided, however, that a
modification may only be required pursuant to this Paragraph to the extent that it is consistent
with the scope of the remedy selected in the ROD.




          b. For the purposes of this Paragraph 15 and Paragraph 44 only, the “scope of the remedy
selected in the ROD” is, as described by Section XI of the 2008 ROD Amendment: (i) remediating
sediment in OU1 with PCB concentrations greater than the 1.0 ppm remedial action level (“RAL”) or
achieving a surface weighted average concentration (“SWAC”) of 0.25 ppm or less for all of OU1
after addressing such sediment either by the primary remedial approach (sediment removal by
dredging) or by one of the alternate remedial





24









 







approaches (engineered cap or sand cover) if the
eligibility criteria specified by Section XI of the 2008 ROD Amendment will be met; (ii) dewatering
of the sediment that is removed; (iii) treatment of the water collected during the dewatering
process; (iv) off-Site disposal of the removed sediment after dewatering; (v) demobilization and
site restoration; (vi) Operation and Maintenance activities (including cap maintenance); and (vii)
Institutional Controls and Long Term Monitoring.




          c. If Settling Defendants object to any modification determined by the Response Agencies to be
necessary pursuant to this Paragraph, they may seek dispute resolution
pursuant to Section XX (Dispute Resolution), Paragraph 65 (record review). The SOW and/or
related work plans shall be modified in accordance with final resolution of the dispute.




          d. Settling Defendants shall implement any work required by any modifications incorporated in
the SOW and/or in work plans developed pursuant to the SOW in accordance with this Paragraph.




          e. Nothing in this Paragraph shall be construed to limit the Response Agencies’ authority to
require performance of further response actions as otherwise provided in this Consent Decree.




     16. Settling Defendants acknowledge and agree that nothing in this Consent Decree, the SOW,
the Remedial Design Work Plan, or Remedial Action Work Plan constitutes a warranty or
representation of any kind by Plaintiffs that compliance with the work requirements set forth in
the SOW and the Work Plans will achieve the Performance Standards.



     17. Settling Defendants shall, prior to any off-Site shipment of Waste Material from the Site
to an out-of-state waste management facility, provide written notification to the appropriate state
environmental official in the receiving facility’s state and to the Response



25









 




Agencies’ Project
Coordinators of such shipment of Waste Material. However, this notification requirement shall not
apply to any off-Site shipments when the total volume of all such shipments will not exceed 10
cubic yards.




          a. The Settling Defendants shall include in the written notification the following
information, where available: (i) the name and location of the facility to which the Waste
Material is to be shipped; (ii) the type and quantity of the Waste Material to be shipped; the
expected schedule for the shipment of the Waste Material; and (iv) the method of transportation.
The Settling Defendants 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.




          b. The identity of the receiving facility and state will be determined by the Settling
Defendants following the award of the contract for Remedial Action construction. The Settling
Defendants shall provide the information required by Subparagraph 17.a as soon as practicable after
the award of the contract and before the Waste Material is actually shipped.




VIII. POST-REMEDY RESPONSE WORK AND REMEDY REVIEW




     18. O&M and Post-Remedy Institutional Controls. After Certification of Completion of
Remedial Action by EPA pursuant to Subparagraph 44.b, Settling Defendants shall perform O&M and
Post-Remedy Institutional Controls Work as required by the ROD, the Final Operation and Maintenance
Plan, and the Institutional Controls Plan. In the event that Settling Defendants fail to perform
O&M and Post-Remedy Institutional Controls Work as required by this Paragraph, and EPA or, as
appropriate, the State takes such action instead, Settling Defendants shall reimburse EPA and the
State for all costs of the response action not inconsistent with the NCP pursuant to Paragraph 54
(Payment of Specified Future Response Costs).



26









 





     19. Periodic Remedy Review and Post-Remedy Monitoring. Settling Defendants shall
conduct any studies and investigations as requested by the Response Agencies, in order to permit
the Response Agencies to conduct reviews of whether the Remedial Action is protective of human
health and the environment at least every five years as required by Section 121(c) of CERCLA and
any applicable regulations. Such studies and investigations shall include, but shall not be
limited to, Post-Remedy Monitoring after Certification of Completion of Remedial Action by EPA
pursuant to Subparagraph 44.b. In the event that Settling Defendants fail to conduct such studies
and investigations as required by this Paragraph, and EPA or, as appropriate, the State takes such
action instead, Settling Defendants shall reimburse EPA and the State for all costs of
the response action not inconsistent with the NCP pursuant to Paragraph 54 (Payment of
Specified Future Response Costs).



     20. Further Response Actions.



          a. If the Response Agencies determine, at any time, that the Remedial Action is not protective
of human health and the environment, the Response Agencies may select further response actions for
OU1 in accordance with the requirements of CERCLA and the NCP.




          b. Settling Defendants and, if required by Sections 113(k)(2) or 117 of CERCLA, the public,
will be provided with an opportunity to comment on any further response actions proposed by the
Response Agencies as a result of the review conducted pursuant to Section 121(c) of CERCLA and to
submit written comments for the record during the comment period.




          c. Notwithstanding Paragraph F of Section I (Background), Settling Defendants hereby agree and
covenant that the Plaintiffs shall not have to prove, and that Settling Defendants shall not
contest, the following facts with respect to OU1 in response to any






27









 







administrative order or in any
judicial proceeding relating to any further response action the Response Agencies select for OU1 to
the extent that the reopener conditions in Paragraph 86 or Paragraph 87 (United States’
reservations of liability based on unknown conditions or new information) are satisfied:





     (1) Each Settling Defendant is a person who at the time of disposal of a
hazardous substance owned or operated a facility from which such hazardous
substances were disposed of, and from which there have been releases of hazardous
substances which caused the incurrence of response costs for OU1; and




     (2) Each Settling Defendant is a person who by contract, agreement, or
otherwise arranged for the disposal or treatment of hazardous substances owned
or possessed by the Settling Defendant, by another party or entity, at a
facility owned or operated by another party or entity and containing such hazardous
substances, from which there have been releases of hazardous substances which caused
the incurrence of response costs for OU1.



          d. Except as provided by Subparagraph 20.c, nothing herein shall constitute a waiver of any
claim or defense by any Party with respect to any such further response action.




IX. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS




     21. Settling Defendants shall use quality assurance, quality control, and chain of custody
procedures for all treatability, design, compliance and monitoring samples in accordance with “EPA
Requirements for Quality Assurance Project Plans (QA/R5)” (EPA/240/B-01/003, March 2001), “Guidance
for Quality Assurance Project Plans (QA/G-5)” (EPA/600/R-98/018, February 1998), and subsequent
amendments to such guidelines upon notification by the Response Agencies to Settling Defendants of
such amendment. Amended guidelines shall apply



28









 




only to procedures conducted after such
notification. Prior to the commencement of any monitoring project under this Consent Decree,
Settling Defendants shall submit to the Response Agencies for approval a Quality Assurance Project
Plan (“QAPP”) that is consistent with the SOW, the NCP and applicable guidance documents. If
relevant to the proceeding, the Parties agree that validated sampling data generated in accordance
with the QAPP(s) and reviewed and approved by the Response Agencies shall be admissible as
evidence, without objection, in any proceeding under this Decree. Settling Defendants shall ensure
that the Response Agencies’ personnel and their authorized representatives are allowed access at
reasonable times to all laboratories utilized by Settling Defendants in implementing this Consent
Decree. In addition, Settling Defendants shall ensure that such laboratories shall analyze all
samples submitted by the Response Agencies pursuant to the QAPP for quality assurance monitoring.
Settling Defendants
shall ensure that the laboratories they utilize for the analysis of samples taken pursuant to
this 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” and the “Contract Lab Program Statement of Work for Organic Analysis,” dated February
1988, and any amendments made thereto during the course of the implementation of this Decree;
however, upon approval by the Response Agencies, Settling Defendants may use other analytical
methods which are as stringent as or more stringent than the CLP-approved methods. Settling
Defendants shall ensure that all laboratories they use for analysis of samples taken pursuant to
this Consent Decree participate in an EPA or EPA-equivalent QA/QC program. Settling Defendants
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





29









 







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 the Response Agencies. The Response Agencies may consider
laboratories accredited under the National Environmental Laboratory Accreditation Program (“NELAP”)
as meeting the Quality System requirements. Settling Defendants shall 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 the Response
Agencies.




     22. Upon request, the Settling Defendants shall allow split or duplicate samples to be taken
by the Response Agencies or their authorized representatives. Settling Defendants shall notify the
Response Agencies not less than 15 days in advance of any sample collection activity unless shorter
notice is agreed to by the Response Agencies. In addition, the Response Agencies
shall have the right to take any additional samples that the Response Agencies deem necessary.
Upon request, the Response Agencies shall allow the Settling Defendants to take split or duplicate
samples of any samples they take as part of the Plaintiffs’ oversight of the Settling Defendants’
implementation of the Response Work.



     23. Settling Defendants shall submit to the Response Agencies copies of the results of all
sampling and/or tests or other data obtained or generated by or on behalf of Settling Defendants
with respect to OU1 and/or the implementation of this Consent Decree unless the Response Agencies
agree otherwise.



     24. Notwithstanding any provision of this Consent Decree, the United States and the State
hereby retain all of their information gathering and inspection authorities and rights,



30









 




including
enforcement actions related thereto, under CERCLA, RCRA and any other applicable statutes or
regulations.




X. ACCESS AND INSTITUTIONAL CONTROLS




     25. If any property where access and/or land/water use restrictions are needed to implement
this Consent Decree is owned or controlled by any of the Settling Defendants, such Settling
Defendants shall:



          a. commencing on the Date of Lodging of this Consent Decree, provide the Plaintiffs and their
representatives, including the Response Agencies and their contractors, with access at all
reasonable times to such property, for the purpose of conducting any activity related to this
Consent Decree including, but not limited to, the following activities:




               (1) monitoring the Response Work;



               (2) verifying any data or information submitted to the Plaintiffs;



               (3) conducting investigations relating to contamination at or near the Site;



               (4) obtaining samples;



               (5) assessing the need for, planning, or implementing additional response actions at or near
the Site;



               (6) implementing the Response Work pursuant to the conditions set forth in Paragraph 90 of
this Consent Decree;



               (7) inspecting and copying records, operating logs, contracts, or other documents maintained
or generated by Settling Defendants or their agents, consistent with Section XXVI (Access to
Information);



31









 





               (8) assessing Settling Defendants’ compliance with this Consent Decree; and



               (9) determining whether the Site or other 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 property, in any manner that would interfere with or adversely affect the integrity or
protectiveness of the remedial measures to be implemented pursuant to this Consent Decree.




          c. if requested in writing by the Response Agencies, execute and record in the appropriate
County land records office, an easement, running with the land, that: (i) grants a right of access
for the purpose of conducting any activity related to this Consent Decree including, but not
limited to, those activities listed in Paragraph 25.a of this Consent Decree, and (ii) grants the
right to enforce the land/water use restrictions listed in Paragraph 25.b of this Consent Decree,
or other restrictions that the Response Agencies determine are necessary to implement, ensure
non-interference with, or ensure the protectiveness of the remedial measures
to be performed pursuant to this Consent Decree. Such Settling Defendants shall grant the
access rights and the rights to enforce the land/water use restrictions to: (i) the United States,
on behalf of EPA, and its representatives, (ii) the State, on behalf of WDNR, and its
representatives, (iii) the other Settling Defendants and their representatives, and/or (iv) other
appropriate grantees identified by the Response Agencies. Such Settling Defendants shall, within 45
days after receiving a written request from the Response Agencies, submit to the response Agencies
for review and approval with respect to such property:





32









 









     (1) a draft easement that is enforceable under the laws of the State of
Wisconsin, free and clear of all prior liens and encumbrances (except as approved by
EPA), and acceptable under the Attorney General’s Title Regulations promulgated
pursuant to 40 U.S.C. § 255; and




     (2) a current title commitment or report prepared in accordance with the U.S.
Department of Justice’s Title Standards 2001 (the “Standards”). Within 15 days of
EPA’s approval and acceptance of the easement, such Settling Defendants shall update
the title search and, if it is determined that nothing has occurred since the
effective date of the commitment or report to affect the title adversely, take the
steps necessary to record the easement with the appropriate County land records
office. Within 30 days of recording the easement, such Settling Defendants shall
provide EPA with final title evidence acceptable under the Standards, and a
certified copy of the original recorded easement showing the clerk’s recording
stamps.



     26. If any property where access and/or land/water use restrictions are needed to implement
this Consent Decree is owned or controlled by persons other than any of the Settling Defendants,
Settling Defendants shall use best efforts to secure from such persons:



          a. an agreement to provide access thereto for Settling Defendants, as well as for the
Plaintiffs, on behalf of the response Agencies, as well as their representatives (including
contractors), for the purpose of conducting any activity related to this Consent Decree including,
but not limited to, those activities listed in Paragraph 25.a of this Consent Decree;




          b. an agreement, enforceable by the Settling Defendants and the Plaintiffs, to abide by the
obligations and restrictions established by Paragraph 25.b of this Consent Decree, or






33









 







that are
otherwise necessary to implement, ensure non-interference with, or ensure the protectiveness of the
remedial measures to be performed pursuant to this Consent Decree; and




          c. if requested in writing by the Response Agencies, the execution and recordation in the
appropriate County land records office, of an easement, running with the land, that: (i) grants a
right of access for the purpose of conducting any activity related to this Consent Decree
including, but not limited to, those activities listed in Paragraph 25.a of this Consent Decree,
and (ii) grants the right to enforce the land/water use restrictions listed in Paragraph 25.b of
this Consent Decree, or other restrictions that the Response Agencies determine are necessary to
implement, ensure non-interference with, or ensure the protectiveness of the remedial measures to
be performed pursuant to this Consent Decree. The access rights and/or rights to enforce
land/water use restrictions shall be granted to: (i) the United States, on behalf of EPA, and its
representatives, (ii) the State, on behalf of WDNR, and its representatives, (iii) the other
Settling Defendants and their representatives, and/or (iv) other appropriate grantees. Settling
Defendants shall, within 45 days after receiving a written request from the Response Agencies,
submit to the Response Agencies for review and approval with respect to such property:





     (1) a draft easement that is enforceable under the laws of the State of
Wisconsin, free and clear of all prior liens and encumbrances (except as approved
by the Response Agencies), and acceptable under the Attorney General’s Title
Regulations promulgated pursuant to 40 U.S.C. § 255; and




     (2) a current title commitment or report prepared in accordance with the U.S.
Department of Justice’s Title Standards 2001 (the “Standards”). Within 15 days of
EPA’s approval and acceptance of the easement, Settling Defendants shall update the
title search and, if it is determined that nothing has occurred since



34









 






the effective
date of the commitment or report to affect the title adversely, take the steps
necessary to record the easement with the appropriate County land records office.
Within 30 days of the recording of the easement, Settling Defendants shall provide
EPA with final title evidence acceptable under the Standards, and a certified copy
of the original recorded easement showing the clerk’s recording stamps.



     27. For purposes of Paragraph 26 of this Consent Decree, “best efforts” includes the payment
of reasonable sums of money in consideration of access, access easements, land/water use
restrictions, and/or restrictive easements. If any access or land/water use restriction agreements
required by Paragraphs 26.a or 26.b of this Consent Decree are not obtained within 45 days of the
Effective Date of this Consent Decree, or if any access easements or restrictive easements required
by Paragraph 26.c of this Consent Decree are not submitted to the Response Agencies in draft form
within 45 days of receipt of a written request by the Response Agencies, then Settling Defendants
shall promptly notify the United States in writing, and shall include in that notification a
summary of the steps that Settling Defendants have taken to attempt to comply with Paragraph 26 of
this Consent Decree. The United States and the State may, as they deem appropriate, assist
Settling Defendants in obtaining access or land/water use restrictions, either in the form of
contractual agreements or in the form of easements running with the land. Settling
Defendants shall reimburse the United States and the State, as Specified Future Response
Costs, for all costs incurred, direct or indirect, by the United States or the State in obtaining
such access and/or land/water use restrictions including, but not limited to, the cost of attorney
time and the amount of monetary consideration paid or just compensation.



35









 





     28. If any property where access and/or land/water use restrictions are needed to implement
this Consent Decree is owned or controlled by the Plaintiffs, the Plaintiffs shall use best efforts
to assist the Settling Defendants in securing necessary access and/or land/water use restrictions.



     29. If the Response Agencies determine that land/water use restrictions in the form of state
or local laws, regulations, ordinances or other governmental controls are needed to implement the
remedy selected in the ROD, ensure the integrity and protectiveness thereof, or ensure
non-interference therewith, Settling Defendants shall cooperate with the Response Agencies’ efforts
to secure such governmental controls.



     30. Notwithstanding any provision of this Consent Decree, the United States and the State
retain all of their access authorities and rights, as well as all of their rights to require
land/water use restrictions, including enforcement authorities related thereto, under CERCLA, RCRA
and any other applicable statute or regulations.



XI. REPORTING REQUIREMENTS




     31. Monthly RD/RA Progress Reports.



          a. In addition to any other requirement of this Consent Decree, starting with the first month
after the Date of Lodging, Settling Defendants shall submit two copies of written Monthly RD/RA
Progress Reports to each of the Response Agencies that shall: (i) describe the actions which have
been taken toward achieving compliance with this Consent Decree during the previous month; (ii)
include a summary of all results of sampling and tests and all other data
received or generated by Settling Defendants or their contractors or agents in the previous
month; (iii) identify all work plans, plans and other deliverables required by this Consent Decree
completed and submitted during the previous month; (iv) describe all actions, including, but not
limited to, data collection and implementation of work plans, which are scheduled for the next
month and provide other information relating to the progress of construction, including, but not



36









 




limited to, critical path diagrams, Gantt charts and Pert charts; (v) include information regarding
percentage of completion, unresolved delays encountered or anticipated that may affect the future
schedule for implementation of the Response Work, and a description of efforts made to mitigate
those delays or anticipated delays; (vi) include any modifications to the work plans or other
schedules that Settling Defendants have proposed to the Response Agencies or that have been
approved by the Response Agencies; and (vii) describe all activities undertaken in support of the
Community Relations Plan during the previous month and those to be undertaken in the next month.
Settling Defendants shall submit these progress reports to the Response Agencies by the tenth day
of every month following the Date of Lodging until Certification of Completion of Remedial Action
by EPA pursuant to Subparagraph 44.b. During performance of the Remedial Design, the Monthly RD/RA
Progress Reports shall include all information required by Paragraph 38 of the July 2003 AOC and
shall thereby satisfy the requirement to submit a monthly progress report under the July 2003 AOC
and this Consent Decree. If requested by the Response Agencies, Settling Defendants shall also
provide briefings for the Response Agencies to discuss the progress of the Response Work.




          b. The Settling Defendants shall notify the Response Agencies of any change in the schedule
described in the Monthly RD/RA Progress Report for the performance of any activity, including, but
not limited to, data collection and implementation of work plans, no later than seven days prior to
the performance of the activity.




     32. Quarterly Reports. Starting with the second quarter of 2004, the Settling
Defendants shall submit Quarterly Reports under this Paragraph to assist the Plaintiffs in



37









 




monitoring the funding and budgeting of the Response Work and any Approved Restoration Work.




          a. The Settling Defendants shall submit Quarterly Reports on a quarterly basis for so long as
the Remedial Action continues under this Consent Decree, until Certification of Completion of
Remedial Action by EPA pursuant to Subparagraph 44.b. For a given calendar year, the Report for
the first calendar quarter shall be submitted by no later than May 1 of that calendar year, the
Report for the second calendar quarter shall be submitted by no later than August 1 of that
calendar year, the Report for the third calendar quarter shall be submitted by no later than
November 1 of that calendar year, and the Report for the fourth calendar quarter shall be submitted
by no later than February 1 of the next calendar year.




          b. Each Quarterly Report shall:





     (1) provide a complete and accurate written cost summary of all Allowable RD/RA
Costs submitted to the Escrow Agent for payment from the Escrow Account during the
reporting period, certified in accordance with Subparagraph 32.d;




     (2) specify any amount requested as a periodic disbursement from the
Disbursement Special Account to the Escrow Account pursuant to Paragraph 10 and
Appendix B;




     (3) provide a complete and accurate written cost summary of all Allowable
Restoration Work Costs submitted to the Escrow Agent for payment from the Escrow
Account during the reporting period, certified in accordance with Subparagraph 32.d;



38









 






     (4) list and total all amounts requested and/or disbursed during the reporting
period as payments or reimbursements from the Escrow Account pursuant to Paragraph
11 and Appendix C;




     (5) indicate the approximate balance of the Escrow Account at the end of the
reporting period; and




     (6) summarize all Response Work and all Approved Restoration Work funded and
performed under the Consent Decree during the reporting period.



          c. In addition, prior to the Certification of Completion of Remedial Action, the third
Quarterly Report of each calendar year (that is, the report due on or before November 1) shall
project whether the total balance present in or committed by a secured obligation to the Escrow
Account, including all sub-accounts, is likely to be sufficient to fund the completion of the
Remedial Action, and to leave a remaining balance of $4,000,000 for work in the year 2010 and
thereafter, including work required by Section VIII of this Amended Consent Decree (Post-Remedy
Response Work and Remedy Review), after making all other payments and reimbursements from those
Accounts that are required under the Consent Decree; if the balance is projected to be
insufficient, that third Quarterly Report shall specify the amount of additional funding sufficient
to complete the Remedial Action and to leave a remaining balance of $4,000,000 for work in the year
2010 and thereafter, including work required by Section VIII of this Amended Consent Decree
(Post-Remedy Response Work and Remedy Review).




          d. Each Quarterly Report shall contain the following certification signed by the Chief
Financial Officer of a Settling Defendant or by an Independent Certified Public Accountant retained
by the Settling Defendants:




39









 









“To the best of my knowledge, after thorough investigation and review of Settling
Defendants’ documentation of unreimbursed costs incurred and paid for the work summarized in
this report that was performed pursuant to the Consent Decree, I certify that the
information contained in or accompanying this Quarterly Report 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.”


Each Quarterly Report shall include a list of the cost documents that the certifying individuals
reviewed in support of the Quarterly Cost Summary Report. Upon request by the Plaintiffs, Settling
Defendants shall provide the Plaintiffs any additional information that the Plaintiffs deem
necessary for review of a Quarterly Report.




          e. If the Plaintiffs find that a Quarterly Report includes a mathematical error, an accounting
error, costs that are not Allowable Response Work Costs or Allowable Restoration Work Costs, costs
that are inadequately documented, or costs covered by a prior Quarterly Report, the Plaintiffs will
notify Settling Defendants and the Settling Defendants shall cure the deficiency by submitting a
revised Quarterly Report.




     33. Release Reporting.



          a. Upon the occurrence of any event during performance of the Response Work that Settling
Defendants are required to report pursuant to Section 103 of CERCLA or Section 304 of the Emergency
Planning and Community Right-to-Know Act (“EPCRA”), Settling Defendants shall within 24 hours of
the onset of such event orally notify the Response Agencies’ Project Coordinators or the Response
Agencies’ Alternate Project Coordinators (in the event of the unavailability of the Project
Coordinator). If neither the EPA Project Coordinator nor the EPA Alternate Project Coordinator is
available, oral notification notice shall be given to the Emergency Response Section, Region 5,
United States Environmental Protection Agency. These reporting requirements are in addition to the
reporting required by CERCLA Section 103 or EPCRA Section 304.




40









 








          b. Within 20 days of the onset of such an event, Settling Defendants shall furnish to
Plaintiffs a written report, signed by the Settling Defendants’ Project Coordinator, setting forth
the events which occurred and the measures taken, and to be taken, in response thereto. Within 30
days of the conclusion of such an event, Settling Defendants shall submit a report to Plaintiffs
setting forth all actions taken in response thereto.




     34. Submission and Certification of Reports.



          a. Settling Defendants shall submit two hard copies of all plans, reports, and data required
by the SOW, the Remedial Design Work Plan, the Remedial Action Work Plan, or any other approved
plans to each of the Response Agencies in accordance with the schedules set forth in such plans. At
the same time, the Settling Defendants shall submit an additional copy to each of the Response
Agencies in electronic format.




          b. All reports and other documents submitted by Settling Defendants to the Response Agencies
(other than the monthly progress reports referred to above) which purport to document Settling
Defendants’ compliance with the terms of this Consent Decree shall be signed by an authorized
representative of the Settling Defendants, including but not limited to the Settling Defendants’
Project Coordinator.




XII. RESPONSE AGENCIES’ APPROVAL OF PLANS AND OTHER SUBMISSIONS




     35. After review of any plan, report or other item which is required to be submitted for
approval by the Response Agencies pursuant to this Consent Decree, the Response Agencies shall: (i)
approve, in whole or in part, the submission; (ii) approve the submission upon specified
conditions; (iii) modify the submission to cure the deficiencies; (iv) disapprove, in whole or in
part, the submission, directing that the Settling Defendants modify the submission; or (v) any
combination of the above. However, the Response Agencies shall not modify a submission



41









 




without
first providing Settling Defendants at least one notice of deficiency and an opportunity to
cure within 30 days, except where to do so would cause serious disruption to the Response Work
or where previous submission(s) have been disapproved due to material defects and the deficiencies
in the submission under consideration indicate a bad faith lack of effort to submit an acceptable
deliverable.




     36. In the event of approval, approval upon conditions, or modification by the Response
Agencies, pursuant to Paragraph 35(i), (ii), or (iii), Settling Defendants shall proceed to take
any action required by the plan, report, or other item, as approved or modified by the Response
Agencies subject only to their right to invoke the Dispute Resolution procedures set forth in
Section XX (Dispute Resolution) with respect to the modifications or conditions made by the
Response Agencies. In the event that a submission has a material defect and the Response Agencies
modify the submission to cure the deficiencies pursuant to Paragraph 35(i), the Response Agencies
retain their right to seek stipulated penalties, as provided in Section XXI (Stipulated Penalties).



     37. Resubmission of Plans.



          a. Upon receipt of a notice of disapproval pursuant to Paragraph 35(iv), Settling Defendants
shall, within 30 days or such longer time as specified by the Response Agencies 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 Section XXI, shall accrue during the 30-day
period or otherwise specified period but shall not be payable unless the resubmission is
disapproved or modified due to a material defect as provided in Paragraphs 38 and 39.





42









 








          b. Notwithstanding the receipt of a notice of disapproval pursuant to Paragraph 35(iv),
Settling Defendants shall proceed, at the direction of the Response Agencies, to take any action
required by any non-deficient portion of the submission. Implementation of
any non-deficient portion of a submission shall not relieve Settling Defendants of any
liability for stipulated penalties under Section XXI (Stipulated Penalties).




     38. In the event that a resubmitted plan, report or other item, or portion thereof, is
disapproved by the Response Agencies, the Response Agencies may again require the Settling
Defendants to correct the deficiencies, in accordance with the preceding Paragraphs. The Response
Agencies also retain the right to modify or develop the plan, report or other item. Settling
Defendants shall implement any such plan, report, or item as modified or developed by the Response
Agencies, subject only to their right to invoke the procedures set forth in Section XX (Dispute
Resolution).



     39. If upon resubmission, a plan, report, or item is disapproved or modified by the Response
Agencies due to a material defect, Settling Defendants shall be deemed to have failed to submit
such plan, report, or item timely and adequately unless the Settling Defendants invoke the dispute
resolution procedures set forth in Section XX (Dispute Resolution) and the response Agencies’
action is overturned pursuant to that Section. The provisions of Section XX (Dispute Resolution)
and Section XXI (Stipulated Penalties) shall govern the implementation of the Response Work and
accrual and payment of any stipulated penalties during Dispute Resolution. If the Response
Agencies’ disapproval or modification is upheld, stipulated penalties shall accrue for such
violation from the date on which the initial submission was originally required, as provided in
Section XXI.



43









 





     40. All plans, reports, and other items required to be submitted to the response Agencies
under this Consent Decree shall, upon approval or modification by the Response Agencies, be
enforceable under this Consent Decree. In the event the Response Agencies approve or modify a
portion of a plan, report, or other item required to be submitted to the
Response Agencies under this Consent Decree, the approved or modified portion shall be
enforceable under this Consent Decree.



XIII. PROJECT COORDINATORS




     41. Within 10 days after Settling Defendant WTM I Company’s submittal of the Pre-Final (90%)
Design, Settling Defendants, WDNR, and EPA will notify each other, in writing, of the name, address
and telephone number of their respective designated Project Coordinators and Alternate Project
Coordinators. If a Project Coordinator or Alternate Project Coordinator initially designated is
changed, the identity of the successor will be given to the other Parties at least 5 working days
before the changes occur, unless impracticable, but in no event later than the actual day the
change is made. The Settling Defendants’ Project Coordinator shall be subject to disapproval by
the Response Agencies and shall have the technical expertise sufficient to adequately oversee all
aspects of the Response Work. The Settling Defendants’ Project Coordinator shall not be an
attorney for any of the Settling Defendants in this matter. He or she may assign other
representatives, including other contractors, to serve as a representative for oversight of
performance of daily operations during remedial activities at OU1.



     42. Plaintiffs may designate other representatives, including, but not limited to, EPA and
WDNR employees, and federal and State contractors and consultants, to observe and monitor the
progress of any activity undertaken pursuant to this Consent Decree. EPA’s Project Coordinator and
Alternate Project Coordinator shall have the authority lawfully vested in a



44









 




Remedial Project
Manager (“RPM”) and an On-Scene Coordinator (“OSC”) by the National Contingency Plan, 40 C.F.R.
Part 300. In addition, the Response Agencies’ Project Coordinators or Alternate Project
Coordinators shall have authority, consistent with the National Contingency Plan, to halt any
Response Work required by this Consent Decree and to take any necessary response action when s/he
determines that conditions at the Site constitute an emergency
situation or may present an immediate threat to public health or welfare or the environment
due to release or threatened release of Waste Material.




     43. The Response Agencies’ Project Coordinators and the Settling Defendants’ Project
Coordinator will meet, at a minimum, on a monthly basis.



XIV. CERTIFICATION OF COMPLETION




     44. Certification of Completion of the Remedial Action for OU1.



          a. Within 90 days after Settling Defendants conclude that the Remedial Action has been fully
performed such that the Performance Standards have been achieved, Settling Defendants shall
schedule and conduct a pre-certification inspection to be attended by Settling Defendants and the
Response Agencies. If, after the pre-certification inspection, the Settling Defendants still
believe that the Remedial Action has been fully performed such that the Performance Standards have
been achieved, they shall submit a written report to the Response Agencies requesting certification
pursuant to Section XII (Response Agencies’ Approval of Plans and Other Submissions) within 60 days
of the inspection. In the report, a registered professional engineer and the Settling Defendants’
Project Coordinator shall state that the Remedial Action has been completed in full satisfaction of
the requirements of this Consent Decree. The written report shall include as-built drawings signed
and stamped by a professional engineer. The report





45









 







shall contain the following statement, signed
by a responsible corporate official of a Settling Defendant or the Settling Defendants’ 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 submitting false information, including the
possibility of fine and imprisonment for knowing violations.


If, after completion of the pre-certification inspection and receipt and review of the written
report, EPA, after reasonable opportunity to review and comment by the State, determines that
the Remedial Action or any portion thereof has not been completed in accordance with this
Consent Decree such that the Performance Standards have not been achieved, EPA will notify
Settling Defendants in writing of the activities that must be undertaken by Settling Defendants
pursuant to this Consent Decree to complete the Remedial Action such that the Performance
Standards are achieved; provided, however, that EPA may only require Settling
Defendants 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 ROD,” as that term is
defined in Paragraph 15.b. EPA will set forth in the notice a schedule for performance of such
activities consistent with the Consent Decree and the SOW or require the Settling Defendants to
submit a schedule to EPA for approval pursuant to Section XII (Response Agencies’ Approval of
Plans and Other Submissions). Settling Defendants shall perform all activities described in the
notice in accordance with the specifications and schedules established pursuant to this
Paragraph, subject to their right to invoke the dispute resolution procedures set forth in
Section XX (Dispute Resolution).




          b. If EPA concludes, based on the initial or any subsequent report requesting Certification of
Completion and after a reasonable opportunity for review and comment by the State, that the
Remedial Action has been performed in accordance with this Consent Decree such






46









 







that the Performance
Standards have been achieved, EPA will so certify in writing to Settling Defendants. This
certification shall constitute the Certification of Completion of the Remedial Action for purposes
of this Consent Decree, including, but not limited to, Section XXII (Covenants Not to Sue by
Plaintiffs). Except as expressly provided by this Consent Decree, Certification of Completion of
the Remedial Action shall not affect Settling Defendants’ obligations under this Consent Decree.




     45. Certification of Completion of the Response Work for OU1.



          a. Within 90 days after Settling Defendants conclude that all phases of the Response Work
(including O&M, Post-Remedy Institutional Controls Work, and Post-Remedy Monitoring) have been
fully performed, Settling Defendants shall schedule and conduct a pre-certification inspection to
be attended by Settling Defendants and the Response Agencies. If, after the pre-certification
inspection, the Settling Defendants still believe that the Response Work has been fully performed,
Settling Defendants shall submit a written report by a registered professional engineer stating
that the Response Work has been completed in full satisfaction of the requirements of this Consent
Decree. The report shall contain the following statement, signed by a responsible corporate
official of a Settling Defendant or the Settling Defendants’ 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 submitting false information, including the
possibility of fine and imprisonment for knowing violations.


If, after review of the written report, EPA, after reasonable opportunity to review and comment
by the State, determines that any portion of the Response Work has not been completed in
accordance with this Consent Decree, EPA will notify Settling Defendants in writing of the
activities that must be undertaken by Settling Defendants pursuant to this





47












 




Consent Decree to complete the Response Work; provided, however, that EPA may
only require Settling Defendants 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 ROD,”
as that term is defined in Paragraph 15.b. EPA will set forth in the notice a schedule for
performance of such activities consistent with the Consent Decree and the SOW or require the
Settling Defendants to submit a schedule to EPA for approval pursuant to Section XII (Response
Agencies’ Approval of Plans and Other Submissions). Settling Defendants shall perform all
activities described in the notice in accordance with the specifications and schedules
established therein, subject to their right to invoke the dispute resolution procedures set
forth in Section XX (Dispute Resolution).




          b. If EPA concludes, based on the initial or any subsequent request for Certification of
Completion by Settling Defendants and after a reasonable opportunity for review and comment by the
State, that the Response Work has been performed in accordance with this Consent Decree, EPA will
so notify the Settling Defendants in writing.




XV. EMERGENCY RESPONSE




     46. In the event of any action or occurrence during the performance of the Response Work which
causes or threatens a release of Waste Material at or from OU1 that constitutes an emergency
situation or may present an immediate threat to public health or welfare or the environment,
Settling Defendants shall, subject to Paragraph 47, immediately take all appropriate action to
prevent, abate, or minimize such release or threat of release, and shall immediately notify the
Response Agencies’ Project Coordinators, or, if a Response Agency Project Coordinator is
unavailable, the Response Agency’s Alternate Project Coordinator. If neither the EPA Project
Coordinator nor the EPA Alternate Project Coordinator is available, the Settling



48









 







Defendants shall notify the EPA Emergency Response Unit, Region 5. Settling Defendants shall
take such actions in consultation with the EPA’s Project Coordinator or other available authorized
EPA officer and in accordance with all applicable provisions of the Health and Safety Plans, the
Contingency Plans, and any other applicable plans or documents developed pursuant to the SOW. In
the event that Settling Defendants fail to take appropriate response action as required by this
Section, and EPA or, as appropriate, the State takes such action instead, Settling Defendants shall
reimburse EPA and the State for all costs of the response action not inconsistent with the NCP
pursuant to Paragraph 54 (Payment of Specified Future Response Costs).



     47. Nothing in the preceding Paragraph or in this Consent Decree shall be deemed to limit any
authority of the United States, or the State, to: (i) take all appropriate action to protect human
health and the environment or to prevent, abate, respond to, or minimize an actual or threatened
release of Waste Material on, at, or from the Site, or (ii) direct or order such action, or seek an
order from the Court, to protect human health and the environment or to prevent, abate, respond to,
or minimize an actual or threatened release of Waste Material at or from the Site, subject to
Section XXII (Covenants Not to Sue by Plaintiffs).



XVI. NATURAL RESOURCE RESTORATION EFFORTS




     48. Settling Defendants’ Performance of Approved Restoration Work. As provided by the
following Subparagraphs, the Settling Defendants may propose to the Plaintiffs or the Plaintiffs
may propose to the Settling Defendants that the Settling Defendants perform certain natural
resource restoration work under this Consent Decree, with the costs to be paid or reimbursed from
the Escrow Account.



          a. Any restoration work that the Parties agree will be performed by one or both of the
Settling Defendants under this Paragraph shall be performed in accordance with a




49









 




written Project Implementation Plan, jointly approved by the Plaintiffs and by the other
Trustees, as represented by the Trustee Council (“Approved Restoration Work”). The Project
Implementation Plan shall: (i) describe the restoration work to be performed by one or both of the
Settling Defendants; (ii) establish a schedule for performance of the work; and (iii) establish a
project budget and a pre-approved cost ceiling for the work. The Project Implementation Plan
(including the project budget and the pre-approved cost ceiling) may be revised during the course
of the work by a written amendment approved by the Parties to this Consent Decree and by the other
Trustees.




          b. All Approved Restoration Work shall be consistent with the Trustees’ Joint Restoration Plan
and Environmental Assessment for the Lower Fox River and Green Bay (the “Restoration Plan”).




          c. All of the Settling Defendants’ Allowable Restoration Work Costs (as defined by
Subparagraph 9.b) for Approved Restoration Work shall be paid or reimbursed from the Escrow Account
in accordance with Paragraph 11 of this Consent Decree and Appendix C. Dispute resolution
provisions and force majeure provisions for Approved Restoration Work are set forth in Appendix E,
which is incorporated herein by reference.




          d. As provided by Paragraph 32, each Quarterly Report submitted to the Plaintiffs under this
Consent Decree shall include, among other things, a complete and accurate written cost summary of
all Allowable Restoration Work Costs for the reporting period, and a summary of all Approved
Restoration Work funded and performed under this Paragraph during the reporting period.




          e. Within 60 days after completing all Approved Restoration Work under a particular Project
Implementation Plan, the Settling Defendants shall submit a Final Project



50









 






Report to DOI and WDNR summarizing: (i) all Approved Restoration Work performed under the
Plan; and (ii) the total Allowable Restoration Work Costs for the Approved Restoration Work
performed under the Plan. DOI and WDNR shall in turn provide the other Trustees copies of each
Final Project Report.




     49. Trustee-Sponsored Natural Resource Restoration Efforts.



          a. All funds paid and disbursed to a Site-specific sub-account within the NRDAR Fund under
Paragraph 53 shall be managed by DOI for the joint benefit and use of the Trustees to pay for
Trustee-sponsored natural resource restoration efforts in accordance with the Restoration Plan.
Consistent with the Restoration Plan, all such funds shall be applied toward the costs of
restoration, rehabilitation, or replacement of injured natural resources at the Site, and/or
acquisition of equivalent resources, including but not limited to any administrative costs and
expenses necessary for, and incidental to, restoration, rehabilitation, replacement, and/or
acquisition of equivalent resources planning, and any restoration, rehabilitation, replacement,
and/or acquisition of equivalent resources undertaken.




          b. Decisions regarding any dedication or expenditure of funds under this Paragraph shall be
made by the Trustees, acting through the Trustee Council. Settling Defendants shall not be
entitled to dispute B under Section XX (Dispute Resolution) or in any other forum or proceeding B
any decision relating to funds or restoration efforts under this Paragraph.




XVII. PAYMENTS




     50. Payments Into the Escrow Account.



          a. Timing and Amount of Initial Payments. Each Settling Defendant shall make initial
payments totaling $26,250,000 into the Escrow Account in accordance with the



51









 






following schedule: (i) each Settling Defendant shall deposit $10,500,000 into the Escrow
Account by no later than March 31, 2004; and (ii) each Settling Defendant shall deposit an
additional $15,750,000 into the Escrow Account by no later than June 30, 2004. The payment
requirements of this Paragraph are several obligations only, not joint obligations.




          b. Nature of the Initial Payments. Each Settling Defendant’s payment under this
Paragraph includes the following: (i) $25,000,000 to fund the Remedial Action; and (ii) $1,250,000
to fund a portion of the NRD Commitment.




          c. Subsequent Payments. Subsequent payments into the Escrow Account shall be made and
used to fund the Remedial Action and the Response Work as follows:





     (1) Each Settling Defendants has made or assured payments of $6,000,000 into
the Escrow Account as provided by the Agreed Supplement to Consent Decree filed with
the Court on September 13, 2007.




     (2) The parties acknowledge that an additional $7,000,000 has been paid into
the Escrow Account by Menasha Corporation as provided by the Second Agreed
Supplement to Consent Decree filed with the Court on November 13, 2007. This Amended
Consent Decree does not alter or supersede the provisions of that Second Agreed
Supplement relating to that payment by Menasha Corporation.




     (3) By July 15, 2008, WTM I Company (“WTM I”) shall make a payment of
$9,500,000, which shall be deposited in the WTM I Sub-account.




     (4) By July 15, 2008, P.H. Glatfelter Company (“Glatfelter”) shall make a
payment of $3,000,000, which shall be deposited in the Glatfelter Subaccount. In
addition, by July 15, 2008, Glatfelter shall obtain an irrevocable



52









 







letter of credit which shall provide for payment of an additional $6,500,000
into the Glatfelter Sub-account upon receipt of a written demand by EPA at any time
between January 15, 2009 and February 20, 2009. The irrevocable letter of credit
shall be issued by a financial institution that has the authority to issue letters
of credit and whose letter of credit operations are regulated and examined by an
agency of the United States Government. The financial institution shall have
surplus and reserves in excess of $500 million. The irrevocable letter of credit
shall identify EPA as the beneficiary and the full $6,500,000 shall immediately be
payable to the Glatfelter Sub-account upon receipt of an EPA Payment Directive (to
be dated no earlier than January 15, 2009) in the form attached hereto at Appendix
J. Notwithstanding the requirement that the letter of credit be irrevocable, at any
time prior to January 15, 2009, Glatfelter may deposit an additional $6,500,000 into
the Glatfelter Sub-account, at which time Glatfelter may cancel the letter of
credit. The United States shall surrender the letter of credit for cancellation to
the issuing bank at Glatfelter’s request at any time following Glatfelter’s deposit
into the Escrow Account pursuant to the preceding sentence.




     (5) If, prior to the Certification of Completion of Remedial Action, the third
Quarterly Report for any calendar year (that is, the report due on or before
November 1) indicates that the balance remaining in the Escrow Account, including
all sub-accounts, is insufficient to fund the completion of the following season of
the Remedial Action and to leave a remaining balance of $4,000,000 for work in the
year 2010 and thereafter, including work required by Section VIII of



53









 







this Amended Consent Decree (Post-Remedy Response Work and Remedy Review), each
Settling Defendant shall make an additional payment to the Escrow Account. The
amount of each Settling Defendant’s payment pursuant to this subparagraph shall be
one-half of the amount of additional funding specified in the Quarterly Report as
sufficient to complete the following season and to leave a remaining balance of
$4,000,000 for work in the year 2010 and thereafter, including work required by
Section VIII of this Amended Consent Decree (Post-Remedy Response Work and Remedy
Review). The payments shall be deposited in each Settling Defendant’s sub-account
of the Escrow Account on or before the January 15 following the Quarterly Report.



     51. Disbursements from the Escrow Account.



          a. As provided by this Consent Decree and Appendix C, certain funds from the Escrow Account
shall be disbursed to the United States and the State as payment of sums due under this Consent
Decree, and certain other funds from Escrow Account shall be disbursed to the Settling Defendants
for payment or reimbursement of Allowable RD/RA Costs and/or Allowable Restoration Work Costs.




          b. It is anticipated that certain funds may be disbursed from the Escrow Account for payment
of certain Allowable RD/RA costs and/or Allowable Restoration Work Costs even before the Effective
Date. In the event the Plaintiffs withdraw or withhold consent to this Consent Decree before
entry, or the Court declines to enter the Consent Decree, the unexpended balance of the Escrow
Account shall be disbursed to the Settling Defendants at their request.




54









 








     52. Initial Payments to Plaintiffs.



          a. Initial Payments to the United States. Within 30 days after the Date of Lodging,
the Settling Defendants shall pay a total of $1,040,000 directly to the United States, with each
Settling Defendant being responsible for paying one-half of that total amount ($520,000 each). The
$1,040,000 paid to the United States under this Subparagraph shall be applied as follows: (i)
$740,000 shall be directed to the Fox River Site Special Account within the EPA Hazardous Substance
Superfund, as the EPA Past Cost Payments, and shall be retained and used to conduct or finance
response actions at or in connection with the Site, or transferred by EPA to the EPA Hazardous
Substance Superfund; and (ii) $300,000 shall be directed to the DOI NRDAR Fund, as the DOI Past
Cost Payments.




          b. State Past Cost Payments. Within 30 days after the Date of Lodging, the Settling
Defendants shall pay a total of $10,000 directly to the State, as the State Past Cost Payments,
with each Settling Defendant being responsible for paying one-half of that total amount ($5,000
each).




          c. The payment requirements of this Paragraph are several obligations only, not joint
obligations.




     53. Subsequent Payments and Disbursements for Natural Resource Restoration. As
provided by this Paragraph and by Appendix C, a total of $3,000,000 shall be paid and disbursed as
the NRD Commitment.



          a. By no later than January 31, 2004, the Settling Defendants shall pay a total of $500,000 of
the NRD Commitment directly to a Site-specific sub-account within the DOI NRDAR Fund, with each
Settling Defendant being responsible for paying one-half of that total amount ($250,000 each), to
finance Trustee-sponsored natural resource damage restoration



55









 






efforts under Paragraph 49. The payment requirements of this Subparagraph are several
obligations only, not joint obligations.




          b. The remaining $2,500,000 of the NRD Commitment shall be disbursed from the Escrow Account
in accordance with the schedule and requirements of Appendix C: (i) for payment or reimbursement of
Allowable Restoration Work Costs incurred for Approved Restoration Work to be performed by the
Settling Defendants under Paragraph 48; and/or (ii) for payment to a Site-specific sub-account
within the DOI NRDAR Fund, to finance Trustee-sponsored natural resource damage restoration efforts
under Paragraph 49.




     54. Reimbursement of Specified Future Response Costs.



          a. EPA Reimbursement. All Specified Future Response Costs incurred by the United
States shall be reimbursed as follows:




               (1) The United States shall be entitled to seek reimbursement of any Specified Future
Response Costs incurred and billed by the United States from the Escrow Account as provided by
Appendix C, to the extent that such costs are not inconsistent with the National Contingency Plan.



               (2) Upon receipt of a written demand for payment, the Settling Defendants shall make direct
payments to EPA for any Specified Future Response Costs incurred and billed by the United States if
such costs have not been reimbursed from the Escrow Account, to the extent that such costs are not
inconsistent with the National Contingency Plan. On a periodic basis, if such costs have not been
reimbursed from the Escrow Account, the United States will send Settling Defendants a bill
requiring payment that includes an EPA cost summary, showing direct and indirect costs incurred by
EPA and its contractors, and a DOJ cost summary, showing costs incurred by DOJ and its contractors,
if any. Settling Defendants shall



56









 







make all payments within 30 days of Settling Defendants’ receipt of each bill requiring
payment, except as otherwise provided by Paragraph 68.



               (3) All payments and disbursements received by EPA under this Subparagraph 54.a shall be
deposited in the Fox River Site Special Account within the EPA Hazardous Substance Superfund, and
shall be retained and used to conduct or finance response actions at or in connection with the
Site, or transferred by EPA to the EPA Hazardous Substance Superfund.



          b. State Reimbursement. All Specified Future Response Costs incurred by the State
shall be reimbursed as follows:




               (1) The State shall be entitled to seek reimbursement of any Specified Future Response Costs
incurred and billed by the State from the Escrow Account as provided by Appendix C, to the extent
that such costs are not inconsistent with the National Contingency Plan.



               (2) Upon receipt of a written demand for payment, the Settling Defendants shall make direct
payments to the State for any Specified Future Response Costs incurred and billed by the State if
such costs have not been reimbursed from the Escrow Account, to the extent that such costs are not
inconsistent with the National Contingency Plan. On a periodic basis, if such costs have not been
reimbursed from the Escrow Account, the State will send Settling Defendants a bill requiring
payment that includes a WDNR cost summary, showing direct and indirect costs incurred by WDNR and
its contractors, and a WDOJ cost summary, showing costs incurred by WDOJ and its contractors, if
any. Settling Defendants shall make all payments within 30 days of Settling Defendants’ receipt of
each bill requiring payment, except as otherwise provided by Paragraph 68.



57









 





          c. The direct payment requirements of this Paragraph are joint obligations of both Settling
Defendants, not several obligations.




     55. Payment Instructions.



          a. Payments to the United States.




               (1) Initial Payments to the United States. The Initial Payments to the United States
under Subparagraph 52.a shall be paid by FedWire Electronic Funds Transfer (“EFT”) to the U.S.
Department of Justice account in accordance with current EFT procedures, referencing the Lower Fox
River and Green Bay Site and DOJ Case Number 90-11-2-1045/2. Payment shall be made in accordance
with instructions to be provided by the Financial Litigation Unit of the United States Attorney’s
Office for the Eastern District of Wisconsin after the Date of Lodging. Any payments received by
the Department of Justice after 4:00 p.m. (Eastern Time) will be credited on the next business day.
At the time of payment, Settling Defendants shall ensure that notice that payment has been made is
sent to DOJ, DOI, and EPA in accordance with Section XXVIII (Notices and Submissions) and to:


Financial Management Officer

U.S. Environmental Protection Agency

Region 5 Mail Code MF-10J

77 W. Jackson Blvd.

Chicago, IL 60604



Of the $1,040,000 total amount paid to the United States under Subparagraph 52.a: (i) $740,000
shall be deposited in the Fox River Site Special Account, to be retained and used to conduct or
finance response actions at or in connection with the Site, or transferred by EPA to the EPA
Hazardous Substance Superfund; and (ii) $300,000 shall be deposited in the DOI NRDAR Fund.




               (2) All Other Payments to EPA. Except as provided by Subparagraph 55.a.(1), all
payments to EPA under this Section or under Appendix C shall: (i) be made by a



58









 







certified or cashier’s check or checks made payable to “EPA Hazardous Substance Superfund, Fox
River Site Special Account;” (ii) reference the Lower Fox River and Green Bay Site, EPA Site/Spill
ID Number A565, and DOJ Case Number 90-11-2-1045/2; and (iii) indicate that the payment is for
Specified Future Response Costs payable pursuant to this Consent Decree. All payments to EPA under
Section XXI (Stipulated Penalties and Stipulated Damages) shall: (i) be made by a certified or
cashier’s check or checks made payable to “EPA Hazardous Substance Superfund;” (ii) reference the
Lower Fox River and Green Bay Site, EPA Site/Spill ID Number A565, and DOJ Case Number
90-11-2-1045/2; and (iii) indicate that the payment is for stipulated penalties payable pursuant to
this Consent Decree. All payments under this Subparagraph 55.a.(2) shall be sent to:


U.S. Environmental Protection Agency

     Superfund Payments – Cincinnati

      Finance Center

P.O. Box 979076

St. Louis, MO 63197-9000



At the time of payment, Settling Defendants shall ensure that notice that payment has been made is
sent to DOJ and EPA in accordance with Section XXVIII (Notices and Submissions) and to:



Financial Management Officer

U.S. Environmental Protection Agency

Region 5, Mail Code MF-10J

77 W. Jackson Blvd.

Chicago, IL 60604




               (3) All Other Payments to the DOI NRDAR Fund. Except as provided by Subparagraph
55.a.(1), all payments to the DOI NRDAR Fund under this Section or under Appendix C shall: (i) be
made by an electronic funds transfer transaction in accordance with transfer instruction to be
provided by the United States; (ii) reference the Lower Fox River and Green Bay Site and DOJ Case
Number 90-11-2-1045/2; and (iii) indicate that the payment is



59









 







being made pursuant to this Consent Decree with WTM I Company and P. H. Glatfelter Company.
At the time of payment, Settling Defendants shall ensure that notice that payment has been made is
sent to DOI, DOJ, WDNR, and WDOJ in accordance with Section XXVIII (Notices and Submissions) and
to:


Department of the Interior

Natural Resource Damage Assessment and

      Restoration Program

Attn: Restoration Fund Manager

1849 C Street, NW, Mailstop 4449

Washington, DC 20240



DOI shall in turn notify the other Trustees that a payment to the DOI NRDAR Fund has been received
under this Subparagraph.




               (4) Payments to the United States for Stipulated Damages Under Paragraph 74. All
payments to the United States under Paragraph 74 (Stipulated Damages Amounts – NRD Commitment)
shall: (i) be made by a certified or cashier’s check or checks made payable to “Treasurer, United
States of America;” (ii) be tendered to the Financial Litigation Unit of the Office of the United
States Attorney for the Eastern District of Wisconsin; and (iii) be accompanied by a letter
referencing the Lower Fox River and Green Bay Site and indicating that the payment is for
stipulated damages payable pursuant to Paragraph 74 of this Consent Decree with WTM I Company and
P. H. Glatfelter Company. At the time of payment, Settling Defendants shall ensure that notice
that payment has been made is sent to DOI and DOJ in accordance with Section XXVIII (Notices and
Submissions).



          b. Payments to the State. All payments to the State under this Section or under
Section XXI (Stipulated Penalties and Stipulated Damages) shall: (i) be made by a certified or
cashier’s check or checks made payable to “Wisconsin Department of Natural Resources;” (ii)
reference the Lower Fox River and Green Bay Site; (iii) indicate that the


60









 







payment is being made pursuant to this Consent Decree with WTM I Company and P. H. Glatfelter
Company; and (iv) be sent to:



Wisconsin Department of Natural Resources

Attn: Greg Hill, State Project Coordinator

101 S. Webster St.

Madison, WI 53703



At the time of payment, Settling Defendants shall ensure that notice that payment has been made is
sent to the State in accordance with Section XXVIII (Notices and Submissions).




XVIII. INDEMNIFICATION AND INSURANCE




     56. Settling Defendants’ Indemnification of the United States and the State.



          a. The United States and the State do not assume any liability by entering into this agreement
or by virtue of any designation of Settling Defendants as EPA’s authorized representatives under
Section 104(e) of CERCLA. Settling Defendants shall indemnify, save and hold harmless the United
States, the State, and their 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 Settling Defendants, their officers, directors,
employees, agents, contractors, subcontractors, and any persons acting on their behalf or under
their control, in carrying out activities pursuant to this Consent Decree, including, but not
limited to, any claims arising from any designation of Settling Defendants as EPA’s authorized
representatives under Section 104(e) of CERCLA. Further, the Settling Defendants agree to pay the
United States and the State all costs they incur including, but not limited to, attorneys fees and
other expenses of litigation and settlement arising from, or on account of, claims made against the
United States or the State based on negligent or other wrongful acts or omissions of Settling
Defendants, their officers, directors, employees, agents,



61









 






contractors, subcontractors, and any persons acting on their behalf or under their control, in
carrying out activities pursuant to this Consent Decree. Neither the United States nor the State
shall be held out as a party to any contract entered into by or on behalf of Settling Defendants in
carrying out activities pursuant to this Consent Decree. Neither the Settling Defendants nor any
such contractor shall be considered an agent of the United States or the State.




          b. The United States and the State shall give Settling Defendants notice of any claim for
which the United States or the State plans to seek indemnification pursuant to Paragraph 56, and
shall consult with Settling Defendants prior to settling such claim.




          c. Nothing contained in this Consent Decree is intended to limit Settling Defendants’
potential for insurance coverage.




     57. Settling Defendants waive all claims against the United States and the State for damages
or reimbursement or for set-off of any payments made or to be made to the United States or the
State, arising from or on account of any contract, agreement, or arrangement between any one or
more of Settling Defendants and any person for performance of Response Work on or relating to OU1
or any Approved Restoration Work, including, but not limited to, claims on account of construction
delays. In addition, Settling Defendants shall indemnify and hold harmless the United States and
the State with respect to any and all claims for damages or reimbursement arising from or on
account of any contract, agreement, or arrangement between any one or more of Settling Defendants
and any person for performance of Response Work on or relating to OU1 or any Approved Restoration
Work, including, but not limited to, claims on account of construction delays.



     58. No later than 15 days before commencing any on-site Remedial Design work under this
Consent Decree, Settling Defendant WTM I Company shall secure, and shall maintain



62









 







throughout the Remedial Design, comprehensive general liability insurance with limits of 1
million dollars, combined single limit, and automobile liability insurance with limits of 1 million
dollars, combined single limit, naming the United States and the State as additional insureds. No
later than 15 days before commencing any on-site Remedial Action work under this Consent Decree,
Settling Defendants shall secure, and shall maintain until the first anniversary of EPA’s
Certification of Completion of the Remedial Action pursuant to Subparagraph 44.b, comprehensive
general liability insurance with limits of 5 million dollars, combined single limit, and automobile
liability insurance with limits of 2 million dollars, combined single limit, naming the United
States and the State as additional insureds. In addition, for the duration of this Consent Decree,
Settling Defendants shall satisfy, or shall ensure that their contractors or subcontractors
satisfy, all applicable laws and regulations regarding the provision of worker’s compensation
insurance for all persons performing the Response Work on behalf of Settling Defendants in
furtherance of this Consent Decree. Prior to commencement of the Response Work under this Consent
Decree, Settling Defendants shall provide the Response Agencies certificates of such insurance and
a copy of each insurance policy. Settling Defendants shall resubmit such certificates and copies
of policies each year on the anniversary of the Effective Date. If Settling Defendants demonstrate
by evidence satisfactory to the Response Agencies that any contractor or subcontractor maintains
insurance equivalent to that described above, or insurance covering the same risks but in a lesser
amount, then, with respect to that contractor or subcontractor, Settling Defendants need provide
only that portion of the insurance described above which is not maintained by the contractor or
subcontractor. Costs incurred by Settling Defendants to comply with this paragraph shall be
considered Allowable RD/RA Costs.



63









 





XIX. FORCE MAJEURE EVENTS




     59. Except as provided by Paragraph 2 of Appendix E, 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, the Settling Defendants or their contractors shall orally notify the Response
Agencies’ Project Coordinators or, in a Response Agency’s Project Coordinator’s absence, the
response Agency’s Alternate Project Coordinator or, in the event both of EPA’s designated
representatives are unavailable, Superfund Division Director for EPA Region 5, within 5 working
days of when Settling Defendants first knew that the event might cause a delay. Within 10 working
days thereafter, Settling Defendants shall provide the Response Agencies a written explanation and
description of the reasons for the delay; the anticipated duration of the delay; all actions taken
or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to
be taken to prevent or mitigate the delay or the effect of the delay; the Settling Defendants’
rationale for attributing such delay to a Force Majeure Event if they intend to assert such a
claim; and a statement as to whether, in the opinion of the Settling Defendants, such event may
cause or contribute to an endangerment to public health, welfare or the environment. The Settling
Defendants shall include with any notice all available documentation supporting their claim that
the delay was attributable to a Force Majeure Event. Failure to comply with the above requirements
shall preclude Settling Defendants from asserting any claim of a Force Majeure Event for that event
for the period of time of such failure to comply, and for any additional delay caused by such
failure. Settling Defendants shall be deemed to know of any circumstance of which Settling
Defendants, any entity controlled by Settling Defendants, or Settling Defendants’ contractors knew
or should have known.



64









 





     60. If EPA, after a reasonable opportunity for review and comment by WDNR, 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, after a reasonable opportunity for review and comment by WDNR, 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, after a reasonable opportunity for review and comment
by WDNR, does not agree that the delay or anticipated delay has been or will be caused by a Force
Majeure Event, EPA will notify the Settling Defendants in writing of its decision. If EPA, after a
reasonable opportunity for review and comment by WDNR, agrees that the delay is attributable to a
Force Majeure Event, EPA will notify the Settling Defendants in writing of the length of the
extension, if any, for performance of the obligations affected by the Force Majeure Event.



     61. If the Settling Defendants elect to invoke the dispute resolution procedures set forth in
Section XX (Dispute Resolution), they shall do so no later than 15 days after receipt of EPA’s
notice. In any such proceeding, Settling Defendants 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 Settling Defendants complied with the requirements of Paragraphs 57
and 58, above. If Settling Defendants carry this burden, the delay at issue shall be deemed not to
be a violation by Settling Defendants of the affected obligation of this Consent Decree identified
to EPA and the Court.



65









 





XX. DISPUTE RESOLUTION




     62. Except as provided by Paragraph 3 of Appendix E, the dispute resolution procedures of this
Section shall be the exclusive mechanism to resolve disputes between Settling Defendants and the
Plaintiffs arising under or with respect to this Consent Decree. However, the procedures set forth
in this Section shall not apply to actions by the Plaintiffs to enforce obligations of the Settling
Defendants that have not been disputed in accordance with this Section. The dispute resolution
procedures of this Section shall not apply to any disputes between Settling Defendants and the
Plaintiffs not arising under or with respect to this Consent Decree.



     63. Informal Dispute Resolution. Any dispute which arises under or with respect to
this Consent Decree shall in the first instance be the subject of informal negotiations between the
parties to the dispute. The period for informal negotiations shall not exceed 20 days from the time
the dispute arises, unless it is modified by written agreement of the parties to the dispute. The
dispute shall be considered to have arisen when one party sends the other parties a written Notice
of Dispute.



     64. Formal Dispute Resolution.



          a. Except as provided by Paragraph 3 of Appendix E, in the event that the parties cannot
resolve a dispute by informal negotiations under Paragraph 63, then the position advanced by EPA
shall be considered binding unless, within 10 days after the conclusion of the informal negotiation
period, Settling Defendants invoke the formal dispute resolution procedures of this Section by
serving on the Plaintiffs a written Statement of Position on the matter in dispute, including, but
not limited to, any factual data, analysis or opinion supporting that position and any supporting
documentation relied upon by the Settling Defendants. The



66









 






Statement of Position shall specify the Settling Defendants’ position as to whether formal
dispute resolution should proceed under Paragraph 65 or Paragraph 66.




          b. Within 30 days after receipt of Settling Defendants’ Statement of Position, EPA will serve
on Settling Defendants 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 65 or 66. Within 10 days after receipt of EPA’s Statement of
Position, Settling Defendants may submit a Reply.




          c. If there is disagreement between EPA and the Settling Defendants as to whether dispute
resolution should proceed under Paragraph 65 or 66, the parties to the dispute shall follow the
procedures set forth in the paragraph determined by EPA to be applicable. However, if the Settling
Defendants ultimately appeal to the Court to resolve the dispute, the Court shall determine which
paragraph is applicable in accordance with the standards of applicability set forth in Paragraphs
65 and 66.




     65. 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: (i) the adequacy or appropriateness of plans, procedures to implement plans,
or any other items requiring approval by the Response Agencies under this Consent Decree; and (ii)
the adequacy of the performance of response actions taken pursuant to this Consent Decree. Nothing
in this Consent Decree shall be construed to allow any dispute by Settling Defendants under this
Consent Decree regarding the validity of the ROD’s provisions.



67









 





          a. An administrative record of the dispute shall be maintained by EPA and shall contain all
statements of position, including supporting documentation, submitted pursuant to this Section.
Where appropriate, EPA may allow submission of supplemental statements of position by the parties
to the dispute.




          b. The Superfund Division Director for EPA Region 5 will issue a final administrative decision
resolving the dispute based on the administrative record described in Subparagraph 65.a. This
decision shall be binding upon the Settling Defendants, subject only to the right to seek judicial
review pursuant to Subparagraphs 65.c and d.




          c. Any administrative decision made by EPA pursuant to Subparagraph 65.b shall be reviewable
by this Court, provided that a motion for judicial review of the decision is filed by the Settling
Defendants with the Court and served on all Parties within 20 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 and the State
may file a response to Settling Defendants’ motion.




          d. In proceedings on any dispute governed by this Paragraph, Settling Defendants shall have
the burden of demonstrating that the decision of the Superfund Division Director for EPA Region 5
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 Subparagraph 65.a.




     66. 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.



68









 





          a. Following receipt of Settling Defendants’ Statement of Position submitted pursuant to
Paragraph 64, and after service of EPA’s Statement of Position and any Reply, the Superfund
Division Director for EPA Region 5 will issue a final decision resolving the dispute. The
Superfund Division Director’s decision shall be binding on the Settling Defendants unless, within
20 days of receipt of the decision, the Settling Defendants file with the Court and serve on the
parties a motion for judicial review of the decision setting forth the matter in dispute, the
efforts made by the parties to resolve it, the relief requested, and the schedule, if any, within
which the dispute must be resolved to ensure orderly implementation of the Consent Decree. The
United States may file a response to Settling Defendants’ motion.




          b. Notwithstanding Paragraph K of Section I (Background) of this Consent Decree, judicial
review of any dispute governed by this Paragraph shall be governed by applicable principles of law.




     67. The invocation of formal dispute resolution procedures under this Section shall not
extend, postpone or affect in any way any obligation of the Settling Defendants under this Consent
Decree, not directly in dispute, unless EPA or the Court agrees otherwise. Stipulated penalties
with respect to the disputed matter shall continue to accrue but payment shall be stayed pending
resolution of the dispute as provided in Paragraph 79. Notwithstanding the stay of payment,
stipulated penalties shall accrue from the first day of noncompliance with any applicable provision
of this Consent Decree. In the event that the Settling Defendants do not prevail on the disputed
issue, stipulated penalties shall be assessed and paid as provided in Section XXI (Stipulated
Penalties).



69









 





     68. Disputes Regarding Specified Future Response Costs. Settling Defendants may
contest payment of any Specified Future Response Costs under Paragraph 54 if they determine that
the United States or the State has made an accounting error or if they allege that a cost item that
is included represents costs that are inconsistent with the NCP. For any such costs incurred and
billed before Certification of Completion of Remedial Action by EPA pursuant to Subparagraph 44.b,
notice of any such objection shall be submitted in writing as provided by Subparagraph 5.c of
Appendix C. For any such costs incurred and billed after Certification of Completion of Remedial
Action by EPA pursuant to Subparagraph 44.b, notice of any such objection shall be given in writing
within 30 days of receipt of the bill. A copy of any notice of objection shall be sent to the
United States (if the United States’ accounting is being disputed) or to the State (if the State’s
accounting is being disputed) pursuant to Section XXVIII (Notices and Submissions). Any such
notice of objection shall specifically identify the contested Specified Future Response Costs and
the basis for objection. In the event of an objection, all uncontested Specified Future Response
Costs shall immediately be paid to the United States or the State in the manner described in
Paragraph 54. Upon submitting a notice of objection, the Settling Defendants shall initiate the
Dispute Resolution procedures in Section XX (Dispute Resolution). If the United States or the
State prevails in the dispute, within 10 days of the resolution of the dispute, all sums due (with
accrued Interest) shall be paid to EPA (if the United States’ cost are disputed) or to the State
(if the State’s costs are disputed) in the manner described in Paragraph 54. If the Settling
Defendants prevail concerning any aspect of the contested costs, the portion of the costs (plus
associated accrued interest) for which they did not prevail shall be disbursed to EPA or the State,
as appropriate, in the manner described in Paragraph 54; and the amount that was successfully
contested need not be paid to EPA or to the State. The dispute resolution



70









 







procedures set forth in this Paragraph in conjunction with the procedures set forth in Section
XX (Dispute Resolution) shall be the exclusive mechanisms for resolving disputes regarding
reimbursement of the United States and the State for their Specified Future Response Costs.



XXI. STIPULATED PENALTIES AND STIPULATED DAMAGES




     69. Settling Defendants shall be liable for stipulated penalties and/or stipulated damages in
the amounts set forth in this Section for failure to comply with the requirements of this Consent
Decree specified below, unless excused under Section XIX (Force Majeure Events) or Paragraph 2
(Force Majeure Events for Restoration Work) of Appendix E. “Compliance” by Settling Defendants
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 SOW, and any plans or other documents approved by the Plaintiffs
pursuant to this Consent Decree and within the specified time schedules established by and approved
under this Consent Decree.



     70. Stipulated Penalty Amounts — Failure to Make Payments. A Settling Defendant shall
be liable for stipulated penalties in the amounts set forth below for each day of violation for
that Settling Defendant’s failure to make payments as required under this Consent Decree:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	PENALTY PER DAY
	 	 	 	 	 	 	UP TO 11-30	 	OVER
	VIOLATION	 	10 DAYS	 	DAYS	 	30 DAYS
	Failure to deposit funds in the
Escrow Account as required by
Subparagraph 50.a:
	 	$	10,00	 	 	$	15,000	 	 	$	25,000	 
	Failure to make any Initial
Payments to Plaintiffs as required
by Paragraph 52:
	 	$	1,000	 	 	$	2,500	 	 	$	5,000	 
	Failure to make any payment of
Specified Future Response Costs as
required by Subparagraphs 54.a.(2)
or 54.b.(2):
	 	$	1,000	 	 	$	2,500	 	 	$	5,000	 






71









 





Any stipulated penalties for failure to deposit funds in the Escrow Account shall be divided evenly
between EPA and the State. Any stipulated penalties for failure to make any Initial Payments to
Plaintiffs shall be divided between the United States and the State in proportion to the amounts
that are unpaid or overdue. Any stipulated penalties for failure to make payment of Specified
Future Response Costs shall be paid to the Party that rendered the bill involved.




     71. Stipulated Penalty Amounts — Response Work. Settling Defendants shall be liable
for stipulated penalties in the amounts set forth below for each day of violation for failure to
perform Response Work as required under this Consent Decree:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	PENALTY PER DAY
	 	 	 	 	 	 	UP TO 11-30	 	OVER
	VIOLATION	 	10 DAYS	 	DAYS	 	30 DAYS
	Failure to perform the Remedial
Action in accordance with the
schedule and requirements
established by the Remedial Action
Work Plan, as mandated by Paragraph
14:
	 	$	2,000	 	 	$	5,000	 	 	$	10,000	 
	Failure to perform O&M or Long Term
Monitoring in accordance with the
schedule and requirements
established by the Final Operation
and Maintenance Plan, as mandated
by Paragraph 14, Paragraph 18, and
Paragraph 19:
	 	$	1,000	 	 	$	2,500	 	 	$	5,000	 
	Failure to perform Institutional
Controls requirements in accordance
with the schedule and requirements
established by the Institutional
Controls Plan, as mandated by
Paragraph 14 and Paragraph 18: $1,000 $2,500 $5,000
	 	$	1,000	 	 	$	2,500	 	 	$	5,000	 
	Failure to undertake response
action as required by Section XV
(Emergency Response):
	 	$	5,000	 	 	$	10,000	 	 	$	20,000	 





Any stipulated penalties under this Paragraph shall be divided evenly between EPA and the State.





72












 





     72. Stipulated Penalty Amount — Response Work Takeover. In the event that the
Response Agencies assume performance of a portion or all of the Response Work pursuant to Paragraph
90 of Section XXII (Covenants Not to Sue by Plaintiffs), Settling Defendants shall be liable for a
stipulated penalty in the amount of $250,000. Any stipulated penalties under this Paragraph shall
be divided evenly between EPA and the State.



     73. Stipulated Penalty Amounts — Response Work Reports and Submissions. Settling
Defendants shall be liable for stipulated penalties in the amounts set forth below for each day of
violation for failure to comply with Response Work reporting and submission requirements under this
Consent Decree:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	PENALTY PER DAY	 	 
	 	 	 	 	 	 	UP TO 11-30	 	OVER
	VIOLATION	 	10 DAYS	 	DAYS	 	30 DAYS
	Failure to submit a Remedial Action
Work Plan or any other Remedial
Action Plan as Required by
Paragraph 14:
	 	$	2,000	 	 	$	4,000	 	 	$	5,000	 
	Failure to submit any Monthly RD/RA
Progress Report as required by
Paragraph 31:
	 	$	1,000	 	 	$	2,000	 	 	$	2,500	 
	Failure to submit any Quarterly
Report as required by Paragraph 32:
	 	$	1,000	 	 	$	2,000	 	 	$	2,500	 
	Failure to comply with the Release
Reporting requirements under
Paragraph 33:
	 	$	1,000	 	 	$	2,000	 	 	$	2,500	 





Any stipulated penalties under this Paragraph shall be divided evenly between the United States and
the State.




     74. Stipulated Damages Amounts — NRD Commitment. A Settling Defendant shall be liable
for stipulated damages in the amounts set forth below for each day of violation for that Settling
Defendant’s failure to comply with requirements under this Consent Decree relating to the NRD
Commitment:



73









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	DAMAGES PER DAY	 	 
	 	 	 	 	 	 	UP TO 11-30	 	OVER
	VIOLATION	 	10 DAYS	 	DAYS	 	30 DAYS
	Failure to make the Subsequent
Payment for Natural Resource
Restoration as required by
Subparagraph 53.a:
	 	$	1,000	 	 	$	2,500	 	 	$	5,000	 
	Failure to perform Approved
Restoration Work in accordance with
an approved Project Implementation
Plan, as required by Paragraph 48:
	 	$	500	 	 	$	1,000	 	 	$	1,500	 
	Failure to submit a Final Project
Report on Approved Restoration
Work, as required by Subparagraph
48.e:
	 	$	500	 	 	$	1,000	 	 	$	2,000	 





Any stipulated damages under this Paragraph shall be divided evenly between the United States and
the State.




     75. All stipulated penalties and/or stipulated damages 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: (i) with respect to a deficient submission under Section
XII (Response Agencies’ Approval of Plans and Other Submissions), during the period, if any,
beginning on the 31st day after the response Agencies’ receipt of such submission until the date
that the Response Agencies notify Settling Defendants of any deficiency; (ii) with respect to a
decision by the Plaintiffs under Paragraph 3 (Dispute Resolution for Restoration Work) of Appendix
E, during the period, if any, beginning on the 21st day after the date that Settling Defendants’
Statement of Position is received until the date that the Plaintiffs issue a final administrative
decision regarding such dispute; (iii) with respect to a decision by the Superfund Division
Director for Region 5 under Subparagraph 65.b or 66.a of Section XX (Dispute Resolution), during
the period, if any, beginning on the 21st day after the date that



74









 




Settling Defendants’ reply to EPA’s Statement of Position is received until the date that the
Superfund Division Director issues a final decision regarding such dispute; or (iv) with respect to
judicial review by this Court of any dispute under Section XX (Dispute Resolution) or Paragraph 3
of Appendix E, during the period, if any, beginning on the 31st day after the Court’s receipt of
the final submission regarding the dispute until the date that the Court issues a final decision
regarding such dispute. Nothing herein shall prevent the simultaneous accrual of separate
stipulated penalties and/or stipulated damages for separate violations of this Consent Decree.




     76. Following the Plaintiffs’ determination that Settling Defendants have failed to comply
with a requirement of this Consent Decree, the Plaintiffs may give Settling Defendants written
notification of the same and describe the noncompliance. The Plaintiffs may send the Settling
Defendants a written demand for the payment of the penalties. However, penalties shall accrue as
provided in the preceding Paragraph regardless of whether the Plaintiffs have notified the Settling
Defendants of a violation.



     77. Settling Defendants shall pay any stipulated penalties or stipulated damages accruing
under this Section directly to the Plaintiffs, and shall not be entitled to seek payment or
reimbursement of such penalties or damages from the Disbursement Special Account or from the Escrow
Account under Paragraph 10, Paragraph 11, Appendix B, or Appendix C. All penalties or damages
accruing under this Section shall be due and payable to the United States and the State within 30
days of the Settling Defendants’ receipt of a demand for payment by the Plaintiffs, unless Settling
Defendants invoke the Dispute Resolution procedures under Paragraph 3 of Appendix E or Section XX
(Dispute Resolution). All payments under this Section shall be paid by certified or cashier’s
check(s), shall indicate that the payment is for stipulated penalties or



75









 




stipulated damages, and shall be submitted to EPA, to the State, and/or to the DOI NRDAR Fund,
as appropriate, in the manner specified by Paragraph 55 (Payment Instructions).




     78. The payment of penalties or damages under this Section shall not alter in any way Settling
Defendants’ obligation to complete the performance of the Response Work or any Approved Restoration
Work required under this Consent Decree.



     79. Penalties and/or damages shall continue to accrue as provided in Paragraph 75 during any
dispute resolution period, but need not be paid until the following:



          a. If the dispute is resolved by agreement or by an administrative decision that is not
appealed to this Court, accrued penalties and/or damages determined to be owing shall be paid to
within 15 days of the agreement or the receipt of the administrative decision;




          b. If the dispute is appealed to this Court and the Plaintiffs prevail in whole or in part,
Settling Defendants shall pay all accrued penalties and/or damages determined by the Court to be
owed to the Plaintiffs within 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, Settling Defendants shall pay
all accrued penalties and/or damages determined by the District Court to be owing to the United
States or the State into an interest-bearing escrow account within 60 days of receipt of the
Court’s decision or order. Penalties and/or damages shall be paid into this account as they
continue to accrue, at least every 60 days. Within 15 days of receipt of the final appellate court
decision, the Escrow Agent shall pay the balance of the account to the Plaintiffs or to Settling
Defendants to the extent that they prevail.




     80. If Settling Defendants fail to pay stipulated penalties and/or stipulated damages when
due, the United States or the State may institute proceedings to collect the penalties and/or



76









 




damages, as well as interest. Settling Defendants shall pay Interest on the unpaid balance,
which shall begin to accrue on the date of demand made pursuant to Paragraph 77.




     81. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in any way
limiting the ability of the United States or the State to seek any other remedies or sanctions
available by virtue of Settling Defendants’ 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(l) of CERCLA; provided, however, that the United States shall not seek civil
penalties pursuant to Section 122(l) of CERCLA for any violation for which a stipulated penalty is
provided herein, except in the case of a willful violation of the Consent Decree.



     82. Notwithstanding any other provision of this Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties or stipulated damages payable to
the United States that have accrued pursuant to this Consent Decree. Similarly, notwithstanding
any other provision of this Section, the State may, in its unreviewable discretion, waive any
portion of stipulated penalties or stipulated damages payable to the State that have accrued
pursuant to this Consent Decree.



XXII. COVENANTS NOT TO SUE BY PLAINTIFFS




     83. General Scope of Covenants



          a. As specified by the covenants not to sue contained in Paragraphs 84 and 85, and subject to
the reservations contained in Paragraphs 86, 87, and 89, this Consent Decree is intended to
addresses the Settling Defendants’ alleged liability under Sections 106 and 107(a) of CERCLA for
“OU1 Response Activities and Costs,” as that term is defined by the following Subparagraph 83.b.




77









 








          b. For the purpose of this Consent Decree, the term “OU1 Response Activities and Costs” is
defined as all response activities for Operable Unit 1 performed or to be performed after July 1,
2003, as well as all costs for response activities for Operable Unit 1 incurred after July 1, 2003.
The “OU1 Response Activities and Costs” shall therefore include, but shall not be limited to, all
Response Work performed or to be performed after July 1, 2003 and all Specified Future Response
Costs.




     84. United States’ Covenant Not To Sue. In consideration of the actions that will be
performed by the Settling Defendants pursuant to this Consent Decree and the payments that will be
made to the Plaintiffs under the terms of the Consent Decree, and except as specifically provided
by Paragraphs 86, 87, and 89, the United States covenants not to sue or to take administrative
action against Settling Defendants for OU1 Response Activities and Costs pursuant to: (i) CERCLA
Sections 106 and 107, 42 U.S.C. §§ 9606 and 9607; (ii) RCRA Section 7003, 42 U.S.C. § 6973; (iii)
Clean Water Act Section 311, 33 U.S.C. § 1321; (iv) Toxic Substances Control Act Section 7, 15
U.S.C. § 2606; or (v) Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. Except
with respect to future liability, these covenants not to sue shall take effect upon the receipt by
Plaintiffs of the payments required by Paragraph 52 (Initial Payments to Plaintiffs). With respect
to future liability, these covenants not to sue shall take effect upon Certification of Completion
of Remedial Action by EPA pursuant to Paragraph 44.b. These covenants not to sue are conditioned
upon the satisfactory performance by Settling Defendants of their obligations under this Consent
Decree. These covenants not to sue extend only to the Settling Defendants and do not extend to any
other person; provided, however that these covenants not to sue (and the
reservations thereto) shall also apply to Settling Defendants’ Related Parties.



78









 





     85. State’s Covenant Not To Sue. In consideration of the actions that will be
performed by the Settling Defendants and the payments that will be made to the Plaintiffs under the
terms of the Consent Decree, and except as specifically provided by Paragraphs 86, 87, and 89, the
State covenants not to sue or to take administrative action against Settling Defendants for OU1
Response Activities and Costs pursuant to: (i) CERCLA Section 107, 42 U.S.C. § 9607; (ii) RCRA
Section 700, 42 U.S.C. § 6972; (iii) Clean Water Act Section 505, 33 U.S.C. § 1365; (iv) Toxic
Substances Control Act Section 20, 15 U.S.C. § 2619; or (v) Wisconsin statutory or common law.
Except with respect to future liability, these covenants not to sue shall take effect upon the
receipt by Plaintiffs of the payments required by Paragraph 52 (Initial Payments to Plaintiffs).
With respect to future liability, these covenants not to sue shall take effect upon Certification
of Completion of Remedial Action by EPA pursuant to Paragraph 44.b. These covenants not to sue are
conditioned upon the satisfactory performance by Settling Defendants of their obligations under
this Consent Decree. These covenants not to sue extend only to the Settling Defendants and do not
extend to any other person; provided, however that these covenants not to sue (and
the reservations thereto) shall also apply to Settling Defendants’ Related Parties.



     86. Pre-certification Reservations. Notwithstanding any other provision of this
Consent Decree, the United States and the State reserve, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or in a new action, or to issue an
administrative order seeking to compel Settling Defendants (i) to perform further response actions
relating to OU1 or (ii) to reimburse the United States or the State for additional costs of
response if, prior to Certification of Completion of the Remedial Action:



79









 





          a. conditions relating to OU1, previously unknown to EPA, are discovered, or




          b. information, previously unknown to EPA, is received, in whole or in part, and these
previously unknown conditions or information together with any other relevant information indicates
that the Remedial Action is not protective of human health or the environment.




     87. Post-certification Reservations. Notwithstanding any other provision of this
Consent Decree, the United States and the State reserve, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or in a new action, or to issue an
administrative order seeking to compel Settling Defendants (i) to perform further response actions
relating to OU1 or (ii) to reimburse the United States or the State for additional costs of
response if, subsequent to Certification of Completion of the Remedial Action:



          a. conditions relating to OU1, previously unknown to EPA, are discovered, or




          b. information, previously unknown to EPA, is received, in whole or in part, and these
previously unknown conditions or this information together with other relevant information indicate
that the Remedial Action is not protective of human health or the environment.




     88. For purposes of Paragraph 86, the information and the conditions known to EPA shall
include only that information and those conditions known to EPA as of the date the ROD was signed
and set forth in the Record of Decision and the administrative record supporting the Record of
Decision. For purposes of Paragraph 87, the information and the conditions known to EPA shall
include only that information and those conditions known to EPA as of the date of



80









 




Certification of Completion of the Remedial Action and set forth in the Record of Decision,
the administrative record supporting the Record of Decision, the post-ROD administrative record, or
in any information received by EPA pursuant to the requirements of this Consent Decree prior to
Certification of Completion of the Remedial Action.




     89. General Reservations of Rights. The covenants not to sue set forth above do not
pertain to any matters other than those expressly specified in Paragraphs 84 and Paragraph 85. The
United States and the State reserve, and this Consent Decree is without prejudice to, all rights
against Settling Defendants with respect to all other matters, including but not limited to, the
following:



          a. claims based on a failure by Settling Defendants to meet a requirement of this Consent
Decree;




          b. liability for performance of response activities or for response costs falling outside the
definition of the OU1 Response Activities and Costs, including but not limited to: (i) liability
arising from the past, present, or future disposal, release, or threat of release of Waste
Materials outside of the Site; (ii) liability for operable units at the Site other than OU1; and
(iii) liability for response costs for OU1 incurred by the United States or by the State before the
Date of Lodging (specifically including, but not limited to, any additional liability for
Unresolved EPA Past Costs or for Unresolved State Past Costs);




          c. liability for future disposal of Waste Material at OU1, other than as provided in the ROD,
the Response Work, or otherwise ordered by EPA;




          d. liability, prior to Certification of Completion of the Remedial Action, for additional
response actions at OU1 that EPA determines are necessary to achieve Performance



81









 






Standards, but that cannot be required pursuant to Paragraph 15 (Modification of the SOW or
Related Work Plans);




          e. liability for damages for injury to, destruction of, or loss of natural resources at the
Site, and for the costs of any natural resource damage assessments relating to the Site
(specifically including, but not limited to, any additional liability for natural resource damages
beyond the NRD Commitment or for Unresolved DOI Past Costs);




          f. liability for violations of federal or state law which occur during or after implementation
of the Remedial Action; and




          g. criminal liability.




     90. Response Work Takeover. In the event EPA, in consultation with WDNR, determines
that Settling Defendants have ceased implementation of any portion of the Response Work, are
seriously or repeatedly deficient or late in their performance of the Response Work, or are
implementing the Response Work in a manner which may cause an endangerment to human health or the
environment, EPA and/or WDNR may assume the performance of all or any portions of the Response Work
as EPA determines necessary. Settling Defendants may invoke the procedures set forth in Section XX
(Dispute Resolution), Paragraph 65, to dispute EPA’s determination that takeover of the Response
Work is warranted under this Paragraph. Costs incurred by the United States and/or the State in
performing the Response Work pursuant to this Paragraph shall be considered Specified Future
Response Costs.



     91. Notwithstanding any other provision of this Consent Decree, the United States and the
State retain all authority and reserve all rights to take any and all response actions authorized
by law.



82









 





XXIII. COVENANTS BY SETTLING DEFENDANTS




     92. Settling Defendants’ Covenant Not to Sue. Subject to the reservations in
Paragraph 93, Settling Defendants hereby covenant not to sue and agree not to assert any claims or
causes of action against the United States or the State with respect to the EPA Past Cost Payments,
the State Past Cost Payments, the DOI Past Cost Payments, the NRD Commitment, the OU1 Response
Activities and Costs, or this Consent Decree, 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 or any other provision of law;




          b. any claims against the United States (including any department, agency or instrumentality
of the United States) or State (including any department, agency or instrumentality of the States)
under CERCLA Sections 107 or 113, 42 U.S.C. §§ 9607 or 9613, related to the EPA Past Cost Payments,
the State Past Cost Payments, the DOI Past Cost Payments, the NRD Commitment, or the OU1 Response
Activities and Costs;




          c. any claims against the United States (including any department, agency or instrumentality
of the United States) or State (including any department, agency or instrumentality of the States)
under the United States Constitution, the Wisconsin Constitution, the Tucker Act, 28 U.S.C. § 1491,
the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended, or at common law, related to the EPA
Past Cost Payments, the State Past Cost Payments, the DOI Past Cost Payments, the NRD Commitment,
or the OU1 Response Activities and Costs;




83









 








          d. any direct or indirect claim for disbursement from the Disbursement Special Account
(established pursuant to this Consent Decree), except as provided by Paragraph 10; or




          e. any direct or indirect claim for disbursement from the Fox River Site Special Account.



Except as provided in Paragraph 95 (Waiver of Claims Against De Micromis Parties) and Paragraph 105
(Waiver of Claim-Splitting Defenses), these covenants not to sue shall not apply in the event that
the United States or the State brings a cause of action or issues an order pursuant to the
reservations set forth in Paragraph 86, Paragraph 87, or Subparagraphs 89.b to 89.e, but only to
the extent that Settling Defendants’ claims arise from the same response action, response costs, or
damages that the United States or the State is seeking pursuant to the applicable reservation.




     93. The 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 the 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 the Settling
Defendants’ plans or activities. The foregoing applies only to claims



84









 




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;




     94. 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).



     95. Waiver of Claims Against De Micromis Parties.



          a. 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 Settling Defendants with respect to the Site is based
solely on having arranged for disposal or treatment, or for transport for disposal or treatment, of
hazardous substances at the Site, or having accepted for transport for disposal or treatment of
hazardous substances at the Site, if the materials contributed by such person to the Site contained
less than 2.0 kilograms of polychlorinated biphenyls (which amounts to 0.002% of the total mass of
polychlorinated biphenyls remaining at the Site, as estimated by the December 2002 Remedial
Investigation Report).




          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.




85









 








XXIV. [DELETED]




     96. [DELETED]



     97. [DELETED]



     98. [DELETED]



     99. [DELETED]



XXV. EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION




     100. Except as provided in Paragraph 95 (Waiver of Claims Against De Micromis Parties),
nothing in this Consent Decree shall be construed to create any rights in, or grant any cause of
action to, any person not a Party to this Consent Decree. 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 95 (Waiver of Claims Against De Micromis
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 may
have with respect to any matter, transaction, or occurrence relating in any way to the Site against
any person not a Party hereto.



     101. Statutory Contribution Protection. The Parties agree, and by entering this
Consent Decree this Court finds, that the Settling Defendants are entitled, as of the Effective
Date, to protection from contribution actions or claims as provided by CERCLA Section 113(f)(2), 42
U.S.C. § 9613(f)(2) for matters addressed in this Consent Decree. Settling Defendants’ Related
Parties are also entitled, as of the Effective Date, to protection from contribution actions or
claims as provided by Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), for “matters addressed”
in this Consent Decree. For the purpose of this Paragraph 101, the “matters addressed” by this
Consent Decree are the OU1 Response Activities and Costs.



86









 





     102. Credit for Payments Made and Work Performed.



          a. The Parties agree and acknowledge that the Plaintiffs shall recognize that the Settling
Defendants are entitled to full credit, applied against their liabilities for response costs and
natural resource damages at the Site, for: (i) the EPA Past Cost Payments, (ii) the State Past
Cost Payments; (iii) the DOI Past Cost Payments; (iv) the NRD Commitment; (v) all Specified Future
Response Costs reimbursed under Paragraph 54; (vi) all response costs incurred and paid by the
Settling Defendants in performing the Remedial Design under the July 2003 AOC and this Consent
Decree; and (vii) the Allowable RD/RA Costs paid or reimbursed from the Escrow Account under
Paragraph 11 of this Consent Decree and Appendix C; provided, however, that the
credit ultimately recognized shall take into account and shall not include the amount of any
recoveries by Settling Defendants of any portion of such payments from other liable persons, such
as through a recovery under Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607 and 9613. With
respect to the Allowable RD/RA Costs, the recognized credit shall take into account and shall not
include the amount of any disbursements from the Disbursement Special Account to the Escrow Account
pursuant to Paragraph 10 of this Consent Decree and Appendix B. With respect to the NRD Commitment,
the recognized credit may take into account, as appropriate, the value of restoration projects
funded by the NRD Commitment.




          b. As provided by Paragraph 30 of the API/NCR Consent Decree, the Plaintiffs shall recognize
that Appleton Papers Inc. and NCR Corporation are entitled to full credit, applied against their
liabilities for response costs at the Site, for the funds deposited in and disbursed from the
Disbursement Special Account pursuant to Paragraph 10 of this Consent Decree and Appendix B. In
addition, the Settling Defendants hereby agree and acknowledge that they shall recognize that
Appleton Papers Inc. and NCR Corporation are entitled to full credit,



87









 






applied against their liabilities for response costs at the Site, for the funds deposited in
and disbursed from the Disbursement Special Account pursuant to Paragraph 10 of this Consent Decree
and Appendix B.




     103. The Settling Defendants agree that with respect to any suit or claim for contribution
brought by them for matters related to this Consent Decree they will notify the United States and
the State in writing no later than 20 days prior to the initiation of such suit or claim.



     104. The Settling Defendants also agree that with respect to any suit or claim for
contribution brought against them for matters related to this Consent Decree they will notify in
writing the United States and the State within 20 days of service of the complaint on them. In
addition, Settling Defendants shall notify the United States and the State within 20 days of
service or receipt of any Motion for Summary Judgment and within 20 days of receipt of any order
from a court setting a case for trial.



     105. Waiver of Claim-Splitting Defenses. In any subsequent administrative or judicial
proceeding initiated by the United States or the State for injunctive relief, recovery of response
costs, or other appropriate relief relating to the Site, Settling Defendants shall not assert, and
may not maintain, any defense or claim based upon the principles of waiver, res judicata,
collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention
that the claims raised by the United States or the State in the subsequent proceeding were or
should have been brought in the instant case; provided, however, that nothing in
this Paragraph affects the enforceability of the covenants not to sue set forth in Section XXII
(Covenants Not to Sue by Plaintiffs).



88









 





XXVI. ACCESS TO INFORMATION




     106. Settling Defendants shall provide to the Response Agencies, upon request, copies of all
documents and information within their possession or control or that of their contractors or agents
relating to activities at OU1 or to the implementation of this Consent Decree, including, but not
limited to, sampling, analysis, chain of custody records, manifests, trucking logs, receipts,
reports, sample traffic routing, correspondence, or other documents or information related to the
Response Work. Settling Defendants shall also make available to the Response Agencies, for purposes
of investigation, information gathering, or testimony, their employees, agents, or representatives
with knowledge of relevant facts concerning the performance of the Response Work.



     107. Business Confidential and Privileged Documents.



          a. Settling Defendants may assert business confidentiality claims covering part or all of the
documents or information submitted to Plaintiffs under this Consent Decree to the extent permitted
by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. §
2.203(b). 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 and the State, or if EPA has notified
Settling Defendants that the documents or information are not confidential under the standards of
Section 104(e)(7) of CERCLA, the public may be given access to such documents or information
without further notice to Settling Defendants.




          b. The 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 the Settling Defendants assert such a privilege in lieu of providing



89









 






documents, they shall provide the Plaintiffs with the following: (i) the title of the
document, record, or information; (ii) the date of the document, record, or information; (iii) the
name and title of the author of the document, record, or information; (iv) the name and title of
each addressee and recipient; (v) a description of the contents of the document, record, or
information: and (vi) the privilege asserted by Settling Defendants. 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.




     108. No claim of confidentiality shall be made with respect to any data generated pursuant to
the requirements of this Consent Decree, 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.



XXVII. RETENTION OF RECORDS




     109. Until 10 years after the Settling Defendants’ receipt of EPA’s notification of
Certification of Completion of the Response Work pursuant to Paragraph 45.b, each Settling
Defendant shall preserve and retain all records and documents now in its possession or control or
which come into its possession or control that relate in any manner to the performance of the
Response Work or liability of any person for response actions conducted and to be conducted at the
Site, regardless of any corporate retention policy to the contrary. Until 10 years after the
Settling Defendants’ receipt of EPA’s notification of Certification of Completion of the Response
Work pursuant to Paragraph 45.b, Settling Defendants shall also instruct their contractors and
agents to preserve all documents, records, and information of whatever kind, nature or description
relating to the performance of the Response Work. At any time more than 5 years after
Certification of Completion of Remedial Action by EPA pursuant to Consent Decree



90









 




Subparagraph 44.b, the Settling Defendants may request Plaintiffs’ assent to terminate the
document retention period earlier for specified categories of records and documents. If Plaintiffs
assent to any such request, the Plaintiffs assent shall be given in writing.




     110. At the conclusion of this document retention period, Settling Defendants shall notify the
United States and the State at least 90 days prior to the destruction of any such records or
documents, and, upon request by the United States or the State, Settling Defendants shall deliver
any such records or documents to EPA or WDNR. The 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 the Settling Defendants assert such a privilege,
they shall provide the Plaintiffs with the following: (i) the title of the document, record, or
information; (ii) the date of the document, record, or information; (iii) the name and title of the
author of the document, record, or information; (iv) the name and title of each addressee and
recipient; (v) a description of the subject of the document, record, or information; and (vi) the
privilege asserted by Settling Defendants. 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. Each Settling Defendant hereby certifies individually that, to the best of its knowledge
and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents or other information relating to its potential
liability regarding the Site since notification of potential liability by the United States or the
State or the filing of suit against it regarding the Site and that it has fully complied with any
and all 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.



91









 





XXVIII. NOTICES AND SUBMISSIONS




     112. 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, the State, and the Settling Defendants, respectively.



As to the United States:




     As to DOJ:




Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice (DJ # 90-11-2-1045/2)



	 	 	 	 	 
	 

	 	P.O. Box 7611
	 	601 D Street, N.W. — Room 2121
	 

	 	Washington, D.C. 20044-7611
	 	Washington, DC 20004







As to EPA:




Director, Superfund Division

U.S. Environmental Protection Agency

Region 5

77 West Jackson Blvd.

Chicago, IL 60604




As to DOI:




Office of the Solicitor

Division of Parks and Wildlife

U.S. Department of the Interior

1849 C Street, N.W.

Washington, DC 20240



92









 






As to the State:




As to WDOJ:




Cynthia R. Hirsch

Assistant Attorney General

Wisconsin Department of Justice



	 	 	 	 	 
	 

	 	P.O. Box 7857
	 	17 West Main Street
	 

	 	Madison, WI 53707-7857
	 	Madison, WI 53702






     As to WDNR:




Greg Hill

State Project Coordinator

Wisconsin Department of Natural Resources

P.O. Box 7921 101 S. Webster St.

Madison, WI 53707-7921 Madison, WI 53703




As to the Settling Defendants:




     As to the P. H. Glatfelter Company




Thomas G. Jackson

Assistant General Counsel




P. H. Glatfelter Company

96 South George Street

York, PA 17401-1434



     with a copy to:




David G. Mandelbaum

Ballard Spahr Andrews & Ingersoll, LLP

1735 Market Street, 51st Floor

Philadelphia, PA 19103-7599



     As to WTM I Company:




J.P. Causey Jr.

Vice President & Corporate Secretary/WTM I Company

c/o Chesapeake Corporation

1021 E. Cary Street

Box 2350

Richmond, VA 23218-2350



93









 





     with a copy to:




Nancy K. Peterson

Quarles & Brady LLP

411 East Wisconsin Avenue, Suite 2040

Milwaukee, Wisconsin 53202-4497



XXIX. EFFECTIVE DATE




     113. The effective date of the original version of the Consent Decree shall be April 12, 2004,
the date upon which it was entered by the Court. The effective date of the Amended Consent Decree
shall be the date upon which the Amended Consent Decree is entered by the Court; provided,
however, that the Settling Defendants hereby agree that they shall be bound upon the Date
of Lodging of the Amended Consent Decree to comply with obligations of the Settling Defendants
specified in this Amended Consent Decree that arise before the date upon which this Amended Consent
Decree is entered by the Court. In the event the Plaintiffs withdraw or withhold consent to the
Amended Consent Decree before entry, or the Court declines to enter the Amended Consent Decree,
then the preceding requirement to comply with requirements of the Amended Consent Decree upon the
Date of Lodging of the Amended Consent Decree shall terminate and the parties shall be bound to
comply with the original Consent Decree in this case. In the event that the Court does not enter
this Amended Consent Decree, nothing in the preceding sentence shall bar any party from applying to
the Court for any available relief pursuant to Fed. R. Civ. P. 60.



XXX. RETENTION OF JURISDICTION




     114. This Court retains jurisdiction over both the subject matter of this Consent Decree and
the Settling Defendants 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



94









 




time for such further order, direction, and relief as may be necessary or appropriate for the
construction or modification of this Consent Decree, or to effectuate or enforce compliance with
its terms, or to resolve disputes in accordance with Section XX (Dispute Resolution) hereof.




XXXI. APPENDICES




     115. The following appendices are attached to and incorporated into this Consent Decree:



     “Appendix A” is the Trustee Council Resolution relating to this Consent Decree.



     “Appendix B” is the Appendix addressing Management of the Disbursement Special Account.



     “Appendix C” is the Appendix addressing Escrow Account Management.



     “Appendix D” is the form of Escrow Agreement (including the Amendments thereto).



     “Appendix E” is the Appendix addressing Special Procedures for Restoration Work.



     “Appendix F” is the July 2003 AOC (including the SOW for Remedial Design).



     “Appendix G” is the map of OU1.



     “Appendix H” is the 2002 ROD.



     “Appendix H1” is the 2008 ROD Amendment.



     “Appendix I” is the Amended Statement of Work for the Remedial Action.



     “Appendix J” is the form of EPA Payment Directive.



XXXII. COMMUNITY RELATIONS




     116. Settling Defendants shall propose to the Response Agencies the Settling Defendants’
participation in the community relations plan to be developed by the Response Agencies. The
Response Agencies will determine the appropriate role for the Settling Defendants under the Plan.
Settling Defendants shall also cooperate with the Response Agencies



95









 




in providing information regarding the Response Work to the public. As requested by the
Response Agencies, Settling Defendants shall participate in the preparation of such information for
dissemination to the public and in public meetings which may be held or sponsored by the Response
Agencies to explain activities at or relating to OU1.




XXXIII. MODIFICATION




     117. Schedules specified in this Consent Decree for completion of the Response Work may be
modified by agreement of the Response Agencies and the Settling Defendants. All such modifications
shall be made in writing.



     118. Except as provided in Paragraph 15 (“Modification of the SOW or related Work Plans”), no
material modifications shall be made to the SOW without written notification to and written
approval of the United States, the State, Settling Defendants, and the Court. Modifications to the
SOW that do not materially alter that document may be made by written agreement between the
Response Agencies and the Settling Defendants.



     119. 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




     120. 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. Settling Defendants
consent to the entry of this Consent Decree without further notice.



96









 





     121. 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.



XXXV. SIGNATORIES/SERVICE




     122. The undersigned representatives of each Settling Defendant, the undersigned
representatives of the State, and the Assistant Attorney General for the Environment and Natural
Resources Division of the United States Department of Justice each certify 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.



     123. 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
the Settling Defendants in writing that it no longer supports entry of the Consent Decree.



     124. 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.
Settling Defendants hereby agree 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.



97









 





XXXVI. FINAL JUDGMENT




     125. 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, the State, and the 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.




	 	 	 
	 

	 	THE COURT’S APPROVAL AND ENTRY OF THIS CONSENT DECREE
SHALL BE SIGNIFIED BY ENTRY OF A SEPARATE ORDER IN
ACCORDANCE WITH THE COURT’S ELECTRONIC CASE FILING
POLICIES AND PROCEDURES MANUAL
	 
	 	 
	 

	 	 
	 

	 	United States District Judge







98











 




THE UNDERSIGNED PARTY enters into this Amended Consent Decree in the matter of United States
and the State of Wisconsin v. P.H. Glatfelter Company and WTM I Company (E.D. Wis.), relating
to Operable Unit 1 of the Lower Fox River and Green Bay Site.




	 	 	 	 	 
	 

	 	FOR THE UNITED STATES OF AMERICA	 	 
	 
	 	 	 	 
	18 June 2008

	 	/s/ Ronald J. Tenpas	 	 
	 

Date

	 	 

RONALD J. TENPAS
	 	 
	 

	 	Assistant Attorney General	 	 
	 

	 	Environment and Natural Resources Division	 	 
	 

	 	U.S. Department of Justice	 	 
	 

	 	Washington, D.C. 20530	 	 
	 
	 	 	 	 
	June 19, 2008

	 	/s/ Randall M. Stone	 	 
	 

	 	 	 	 
	Date

	 	RANDALL M. STONE, Senior Attorney	 	 
	 

	 	Environmental Enforcement Section	 	 
	 

	 	Environment and Natural Resources Division	 	 
	 

	 	U.S. Department of Justice	 	 
	 

	 	P. O. Box 7611	 	 
	 

	 	Washington, D.C. 20044-7611	 	 
	 
	 	 	 	 
	 

	 	STEVEN M. BISKUPIC	 	 
	 

	 	United States Attorney	 	 
	 
	 	 	 	 
	 

	 	MATTHEW V. RICHMOND	 	 
	 

	 	Assistant United States Attorney	 	 
	 

	 	Eastern District of Wisconsin	 	 
	 

	 	U.S. Courthouse and Federal Building	 	 
	 

	 	Room 530	 	 
	 

	 	517 E. Wisconsin Avenue	 	 
	 

	 	Milwaukee, WI 53202	 	 






99









 




THE UNDERSIGNED PARTY enters into this Amended Consent Decree in the matter of United States
and the State of Wisconsin v. P.H. Glatfelter Company and WTM I Company (E.D. Wis.), relating
to Operable Unit 1 of the Lower Fox River and Green Bay Site.




	 	 	 	 	 
	6/13/08

	 	/s/ Walter W. Kovalich  — for	 	 
	 

Date

	 	 

BHARAT MATHUR
	 	 
	 

	 	Acting Regional Administrator	 	 
	 

	 	U. S. Environmental Protection Agency	 	 
	 

	 	Region 5	 	 
	 

	 	77 West Jackson Boulevard	 	 
	 

	 	Chicago, IL 60604	 	 
	 
	 	 	 	 
	June 5, 2008

	 	/s/ Richard Murawski	 	 
	 

	 	 	 	 
	Date

	 	RICHARD MURAWSKI	 	 
	 

	 	Associate Regional Counsel	 	 
	 

	 	U.S. Environmental Protection Agency	 	 
	 

	 	Region 5	 	 
	 

	 	77 West Jackson Boulevard	 	 
	 

	 	Chicago, IL 60604	 	 






100









 




THE UNDERSIGNED PARTY enters into this Amended Consent Decree in the matter of United States
and the State of Wisconsin v. P.H. Glatfelter Company and WTM I Company (E.D. Wis.), relating
to Operable Unit 1 of the Lower Fox River and Green Bay Site.




	 	 	 	 	 
	 

	 	FOR THE STATE OF WISCONSIN	 	 
	 
	 	 	 	 
	6-12-08

	 	/s/ Mary Ellen Vollbradt — for	 	 
	 

Date

	 	 

MATTHEW J. FRANK
	 	 
	 

	 	Secretary	 	 
	 

	 	Wisconsin Department of Natural Resources	 	 
	 

	 	101 South Webster Street	 	 
	 

	 	Madison, WI 53703	 	 
	 
	 	 	 	 
	6/12/08

	 	/s/ Cynthia R. Hirsch	 	 
	 

	 	 	 	 
	Date

	 	CYNTHIA R. HIRSCH	 	 
	 

	 	Assistant Attorney General	 	 
	 

	 	Wisconsin Department of Justice	 	 
	 

	 	17 West Main Street	 	 
	 

	 	Madison, WI 53702	 	 






101









 




THE UNDERSIGNED PARTY enters into this Amended Consent Decree in the matter of United States
and the State of Wisconsin v. P.H. Glatfelter Company and WTM I Company (E.D. Wis.), relating
to Operable Unit 1 of the Lower Fox River and Green Bay Site.




	 	 	 	 	 	 	 
	 	 	FOR P.H. GLATFELTER COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	Signature:
	 	/s/ John P. Jacunski	 	 
	 

Date

	 	Name (print):
	 	 

John P Jacunski
	 	 
	 

	 	Title:
	 	Sr. Vice President	 	 
	 

	 	Address:
	 	96 South George Street	 	 
	 

	 	 	 	Suite 500	 	 
	 

	 	 	 	York, Pennsylvania 17401-1434	 	 





Agent Authorized to Accept Services on Behalf of Above-signed Party:




	 	 	 	 	 	 	 
	 

	 	Name (print):	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Ph. Number:	 	 	 	 
	 

	 	 	 	 	 	 





102









 




THE UNDERSIGNED PARTY enters into this Amended Consent Decree in the matter of United States
and the State of Wisconsin v. P.H. Glatfelter Company and WTM I Company (E.D. Wis.), relating
to Operable Unit 1 of the Lower Fox River and Green Bay Site.




	 	 	 	 	 	 	 
	 	 	FOR WTM I COMPANY	 	 
	 
	 	 	 	 	 	 
	June 4, 2008

	 	Signature:
	 	/s/ J. P. Causey, Jr.	 	 
	 

Date

	 	Name (print):
	 	 

J.P. Causey, Jr.
	 	 
	 

	 	Title:
	 	Vice President & Secretary	 	 
	 

	 	Address:
	 	WTM I Company	 	 
	 

	 	 	 	c/o Chesapeake Corporation	 	 
	 

	 	 	 	1071 E. Cary Street	 	 
	 

	 	 	 	Box 2350	 	 
	 

	 	 	 	Richmond, VA 23218	 	 





Agent Authorized to Accept Services on Behalf of Above-signed Party:




	 	 	 	 	 	 	 
	 

	 	Name (print):
	 	Nancy K. Patterson
	 	 
	 



	 	 
	 	 

	 	 
	 

	 	Title:
	 	Attorney	 	 
	 

	 	Address:
	 	Quarles & Brady LLP	 	 
	 

	 	 	 	411 E. Wisconsin Avenue	 	 
	 

	 	 	 	Milwaukee, WI 53202	 	 
	 

	 	Ph. Number:               414-277-5515	 	 







103












 





Consent Decree Appendix A




Trustee Council Resolution relating to this Consent Decree




[See original Consent Decree]





B-1 









 








Consent Decree Appendix B




Management of the Disbursement Special Account




[See original Consent Decree]




B-1 









 





Consent Decree Appendix C




Escrow Account Management




     1. Escrow Account Establishment. Pursuant to Consent Decree Paragraph 11, the
Settling Defendants established an escrow account trust fund, known as the Fox River OU1 Escrow
Account (the “Escrow Account”), with a duly-chartered federally-insured bank (the “Escrow Agent”).
The funds in the Escrow Account shall continue to be held in trust for the performance of certain
requirements of the Amended Consent Decree, and the United States and the State shall continue to
be beneficiaries of the Escrow Account. The Escrow Account may be established and managed as
several accounts or sub-accounts to address the different sources and uses of the funds paid into
the Escrow Account.



     2. Escrow Agreement Form and Requirements. The final Escrow Agreement (and Amendment
No. 1 thereto) was approved by the Plaintiffs to ensure that the escrowed funds will be handled in
accordance with the Consent Decree. The Escrow Agreement shall continue to instruct and authorize
the Escrow Agent to apply, retain, or use the funds in the Escrow Account (and all interest or
other income earned on funds deposited in the Escrow Account) in order to finance response actions
taken or to be taken at or in connection with OU1 of the Site, but only in accordance with, and to
the extent required by, the governing provisions of the Amended Consent Decree.



     3. Monthly Financial Reports. The escrow agreement shall require that the Escrow
Agent prepare and submit to the Response Agencies’ Project Coordinators designated under the
Consent Decree statements every month detailing money received and disbursed in the preceding
month, and the balance in the Escrow Account on the date of the statement.



     4. Disbursements from the Escrow Account, Generally. The Escrow Agent shall disburse
certain funds from the Escrow Account to the United States and the State as payment of sums due
under this Amended Consent Decree and shall disburse certain other funds from the Escrow Account to
the Settling Defendants for reimbursement of Allowable RD/RA Costs and/or Allowable Restoration
Work Costs. In addition, the Settling Defendants may direct the Escrow Agent to pay Allowable
RD/RA Costs directly to a contractor or subcontractor responsible for the performance of the
Response Work, or to pay Allowable Restoration Work Costs directly to a contractor or subcontractor
responsible for the performance of Approved Restoration Work.



     5. Disbursements from the Escrow Account.




     a. Disbursements shall be made from the Escrow Account only for:




     (1) payment of amounts due under Amended Consent Decree Subparagraph 53.b
(Subsequent Payments and Disbursements for Natural Resource Restoration);



C-1









 






     (2) payment or reimbursement of Allowable RD/RA Costs under Amended Consent
Decree Paragraph 12 (OU1 Remedial Design) and Amended Consent Decree Paragraph 14
(OU1 Remedial Action);




     (3) payment of Specified Future Response Costs payable to Plaintiffs under
Amended Consent Decree Paragraph 54 (Payment of Specified Future Response Costs);




     (4) a payment of any or all unexpended funds remaining in the Escrow Account to
the Fox River Site 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 transferred by EPA to the EPA Hazardous Substance Superfund, in the
event EPA and/or WDNR assume performance of all or any portions of the Response Work
under Amended Consent Decree Paragraph 90 (Response Work Takeover);




     (5) payment or reimbursement of Allowable Restoration Work Costs for Approved
Restoration Work under Amended Consent Decree Paragraph 48;




     (6) a partial refund payment to the Settling Defendants after Certification of
Completion of Remedial Action by EPA pursuant to Amended Consent Decree Subparagraph
44.b, if requested by the Settling Defendants and approved by EPA, after a
determination by EPA that the partial refund will leave a balance in the account
that will be sufficient to fund the completion of the Response Work;




     (7) [INTENTIONALLY DELETED]




     (8) a refund payment of any and all unexpended funds paid pursuant to
Subparagraphs 50.c.(3)-(5) of the Amended Consent Decree remaining in the Escrow
Account, after a determination by the Plaintiffs that all pending disbursements from
the Escrow Account have been made, in the event the Plaintiffs withdraw or withhold
consent to the Amended Consent Decree before entry, or the Court declines to enter
the Amended Consent Decree;




     (9) a final payment of any and all unexpended funds remaining in the Escrow
Account, after Certification of Completion of the Response Work by EPA pursuant to
Amended Consent Decree Subparagraph 45.b, either: (i) as a final refund payment to
the Settling Defendant, if a final refund payment is requested by the Settling
Defendants within 180 days after Certification of Completion of the Response Work;
or (ii) as a payment to the Fox River Site 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 transferred by EPA to the EPA Hazardous
Substance Superfund, if a final refund payment is not requested by Settling
Defendants within 180 days after Certification of Completion of the Response Work;
and



C-2









 






     (10) payment of fees, taxes, and expenses under Section 5.3 of the Escrow
Agreement.



          b. A disbursement from the Escrow Account shall only be made by the Escrow Agent after receipt
of a duly executed escrow disbursement certificate in substantially the form set forth in the
Escrow Agreement (attached hereto at Consent Decree Appendix D) at Exhibit A (Form of Escrow
Disbursement Certificate for Trustee-Sponsored Natural Resource Restoration Efforts), Exhibit B
(Form of Escrow Disbursement Certificate for Payment or Reimbursement of Allowable RD/RA Costs),
Exhibit C (Form of Escrow Disbursement Certificate for Payment of Specified Future Response Costs),
Exhibit D (Form of Escrow Disbursement Certificate for Response Work Takeover), Exhibit E (Form of
Escrow Disbursement Certificate for Payment or Reimbursement of Allowable Restoration Costs),
Exhibit F (Form of Escrow Disbursement Certificate for Refund Payment to Settling Defendants), or
Exhibit G (Form of Escrow Disbursement Certificate for Final Payment to Fox River Site Special
Account).



          c. Copies of any escrow disbursement certificate submitted to the Escrow Agent shall be
submitted to all other Parties to this Amended Consent Decree in accordance with Amended Consent
Decree Section XXVIII (Notices and Submissions), and shall be submitted to the other Parties in the
same manner and on the same day that the escrow disbursement certificate is submitted to the Escrow
Agent. No disbursement from the Escrow Account shall be made in response to an escrow
disbursement certificate unless: (i) at least 10 business day have elapsed since the Escrow Agent
received the escrow disbursement certificate; and (ii) the Escrow Agent has not received written
notice within those 10 business days that a Party to this Amended Consent Decree objects to the
requested disbursement and has invoked the dispute resolution procedures under Amended Consent
Decree Section XX (Dispute Resolution) to resolve the objection.



          d. In the event that the Existing Funds (as defined in Amendment No. 2 to the Escrow Agreement
at Paragraph 1, which creates modified Subsection 1.e of the Escrow Agreement) and the Glatfelter
Sub-account are both expended prior to Glatfelter’s $6,500,000 payment, due no later than January
15, 2008 pursuant to Amended Consent Decree Subparagraph 50.c.(4), disbursements shall be made
solely from the WTM Sub-account until funds are deposited into the Glatfelter Sub-account at which
time disbursements shall be made solely from the Glatfelter Sub-account until the balances in the
WTM and Glatfelter Sub-accounts are equal. Thereafter, all disbursements shall be made in
accordance with Subsection 4.d. of the Escrow Agreement (as set forth at Paragraph 2 of Amendment
No. 2 to Escrow Agreement).



          e. Refund payments under Subparagraphs 5.a.(6), 5.a.(8) and 5.a.(9)(i) above shall be
processed according to the following principles (with terms as defined in the Escrow Agreement, as
amended): (1) amounts refunded from the Existing Funds shall be distributed 50/50 to Glatfelter
and WTM, and (2) amounts from the Sub-accounts shall be wholly refunded to the respective
contributors (WTM or Glatfelter) to each Sub-account, unless EPA determines that a balance must
remain in the Sub-accounts in which case an amount equal to one-half the required balance shall be
left in each Sub-account, and any overage in the Glatfelter Sub-account



C-3









 







shall be refunded exclusively to Glatfelter, and any overage in the WTM Sub-account shall be
refunded exclusively to WTM.



     6. Disbursements for Natural Resource Restoration. Beyond the $500,000 initial
payment for Trustee-sponsored natural resource damage restoration efforts required by Consent
Decree Subparagraph 53.a, an additional $2,500,000 deposited in the Escrow Account shall be
earmarked and dedicated for natural resource restoration relating to the Site, as the remainder of
the NRD Commitment. That $2,500,000 shall be disbursed from the Escrow Account as set forth in the
following Subparagraphs: (i) for payment or reimbursement of Allowable Restoration Work Costs
incurred for Approved Restoration Work to be performed by the Settling Defendants under Consent
Decree Paragraph 48; and/or (ii) for payment to a Site-specific sub-account within the DOI NRDAR
Fund, to finance Trustee-sponsored natural resource damage restoration efforts under Consent Decree
Paragraph 49.



          a. Disbursements shall be made from the Escrow Account in accordance with Consent Decree
Paragraph 11 and Consent Decree Paragraph 48 for payment or reimbursement of Allowable Restoration
Work Costs incurred for Approved Restoration Work to be performed by the Settling Defendants.



          b. By no later than December 1, 2004, the following additional amount shall be disbursed from
the Escrow Account to a Site-specific sub-account within the NRDAR Fund: $1,250,000 less the total
amount of all disbursements from the Escrow Account for Allowable Restoration Work Costs through
September 30, 2004.



          c. By no later than December 1, 2005, the following additional amount shall be disbursed from
the Escrow Account to a Site-specific sub-account within the NRDAR Fund: $1,250,000 less the total
amount of all disbursements from the Escrow Account for Allowable Restoration Work Costs between
October 1, 2004 and September 30, 2005.



     [Note: The requirements of this Paragraph 6 have been satisfied.]



     7. Disbursements for Specified Future Response Costs. Except for costs under Amended
Consent Decree Section XV (Emergency Response) that are payable under Amended Consent Decree
Subparagraph 54.a.(2), all Specified Future Response Costs incurred and billed by the United States
and/or the State before Certification of Completion of Remedial Action by EPA pursuant to Amended
Consent Decree Subparagraph 44.b shall be reimbursed from the Escrow Account, to the extent that
such costs are not inconsistent with the National Contingency Plan. The procedures to be used for
billing and reimbursing such Specified Future Response Costs are specified by the following
Subparagraphs.



          a. EPA Reimbursement. On a periodic basis, the United States will send Settling
Defendants a cost summary that includes an EPA cost summary, showing direct and indirect costs
incurred by EPA and its contractors, and a DOJ cost summary, showing costs incurred by DOJ and its
contractors, if any. At any time after the bill has been sent to the Settling Defendants, the
United States may submit a duly executed escrow disbursement certificate requesting that the Escrow
Agent disburse the billed amount to EPA, subject to the



C-4









 







dispute procedures established by pursuant to Amended Consent Decree Paragraph 68 and Section
XX (Dispute Resolution) of the Amended Consent Decree.



          b. State Reimbursement. On a periodic basis, the State will send Settling Defendants
a cost summary that includes a WDNR cost summary, showing direct and indirect costs incurred by
WDNR and its contractors, and a WDOJ cost summary, showing costs incurred by WDOJ and its
contractors, if any. At any time after the bill has been sent to the Settling Defendants, the
State may submit a duly executed escrow disbursement certificate requesting that the Escrow Agent
disburse the billed amount to the State, subject to the dispute procedures established by Amended
Consent Decree Paragraph 68 and Section XX (Dispute Resolution) of the Amended Consent Decree.



     8. Disbursements for the Remedial Design.



          a. Settling Defendant WTM I Company shall be entitled to seek disbursements from the Escrow
Account for payment or reimbursement up to $2 million in response costs incurred in performing its
obligations under the July 2003 AOC and Consent Decree Paragraph 12, as Allowable RD/RA Costs. If
the costs of performing the work required under the June 2003 AOC and Consent Decree Paragraph 12
exceed $2 million, then Settling Defendant WTM I Company shall continue to perform and shall
complete such work at its own expense, without additional reimbursement from the Escrow Account.
[Note: The requirements of this Subparagraph have been satisfied.]



          b. The Plaintiffs shall be entitled to seek disbursements from the Escrow Account for payment
of all response costs incurred by Plaintiffs in overseeing the components of the Response Work
performed under the July 2003 AOC and Amended Consent Decree Paragraph 12, as Specified Future
Response Costs.



C-5









 





Consent Decree Appendix D




Escrow Agreement for the Fox River OU1 Escrow Account:




D1 — Escrow Agreement




D2 — Amendment No. 1 to Escrow Agreement




D3 — Amendment No. 2 to Escrow Agreement




D-1









 





Appendix D1




ESCROW AGREEMENT

For the Fox River OUI Escrow Account




D1-1









 





Appendix D2




AMENDMENT NO. 1 TO ESCROW AGREEMENT

For the Fox River OUI Escrow Account




D2-1









 





Appendix D3




AMENDMENT NO. 2 TO ESCROW AGREEMENT



For the Fox River OUI Escrow Account




     THIS AMENDMENT NO. 2 TO ESCROW AGREEMENT (this “Amendment”) for the Fox River OU1
Escrow Account is effective as of ___, 2008 (the “Amendment No. 2 Effective
Date”) by and among P. H. GLATFELTER COMPANY (“Glatfelter”), WTM I COMPANY
(“WTM”), GW PARTNERS, LLC (“the LLC”), and DEUTSCHE BANK TRUST COMPANY AMERICAS
(the “Escrow Agent”). Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Escrow Agreement (as defined below).



RECITALS




     A. The United States and the State have filed an action, captioned United States and the
State of Wisconsin v. P. H. Glatfelter Company and WTM I Company (E.D. Wis.) (the
“Litigation”), pursuant to Sections 106 and 107 of CERCLA;



     B. The United States, the State, Glatfelter, and WTM negotiated a Consent Decree in the
Litigation memorializing a settlement of claims on specified terms, which Consent Decree was
approved and entered in a Decision and Order of the United States District Court for the Eastern
District of Wisconsin (the “Court”) dated April 12, 2004 (the “Consent Decree”);



     C. Pursuant to the terms of the Consent Decree, Glatfelter, WTM, the LLC, and the Escrow Agent
entered into an Escrow Agreement effective as of March 29, 2004 (the “Escrow Agreement”),
for the benefit of the United States (on behalf of the EPA and the DOI) and the State (on behalf of
the WDNR).



     D. The United States, the State, Glatfelter, and WTM further negotiated and executed an Agreed
Supplement to Consent Decree that was filed with the Court in a corrected form on September 13,
2007 (the “Supplement”) providing for additional funds to be made available to fund
response work with respect to OU1.



     E. The United States, the State, Glatfelter, WTM, and Menasha Corporation further negotiated
and executed a Second Agreed Supplement to Consent Decree that was filed with the Court on November
13, 2007 (the “Second Supplement”) providing for additional funds to be made available to
fund response work with respect to OU1.



     F. The United States, the State, Glatfelter, and WTM further negotiated an Amended Consent
Decree, which is being executed as of the same date as this Amendment No. 2 by Glatfelter and
WTM and will be lodged with the Court for entry.



     G. In furtherance of the terms of the Amended Consent Decree, the parties desire to amend the
Escrow Agreement on the terms and conditions set forth herein.



D3-1









 





     NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:



     1. Section 1 — Funding of Escrow Account. The unnumbered paragraph of Section 1 of the
Escrow Agreement shall be designated as Section 1.a, and the following subsections shall be added
to Section 1 of the Escrow Agreement to read as follows (subsection 1.e. modifies that subsection
as originally added to Section 1 of the Escrow Agreement by Amendment No. 1 to the Escrow
Agreement):




     e. All funds maintained in the Escrow Account, not including the
Sub-accounts, but including without limitation all interest and income earned
on the Account funds (but not the Sub-accounts funds), shall be segregated
from the WTM Sub-account and the Glatfelter Sub-account, in one or more
accounts or sub-accounts of the Escrow Account, and the aggregate amount of
all such funds shall be referred to herein as the “Existing Funds.”
All amounts paid by Menasha Corporation pursuant to the Second Supplement, and
all interest and income earned on such funds, shall be placed with and treated
thereafter as Existing Funds.




     f. In addition to the amounts required to be paid into the Escrow Account
under Subsection 1.a.-d. above, WTM shall pay a total of $9,500,000 into the
WTM Sub-account of the Escrow Account in accordance with the schedule
specified by Paragraph 50.c.(3) of the Amended Consent Decree. The Escrow
Agent shall deposit these funds into the WTM Sub-account and all funds
deposited pursuant to this Subsection 1.f shall be deposited into the WTM
Sub-account and segregated from other funds paid into the Escrow Account. All
interest and income earned on the funds deposited into the WTM Sub-account
shall be deemed part of the WTM Sub-account.




     g. In addition to the amounts required to be paid into the Escrow Account
under Subsection 1.a.-d. above, Glatfelter shall pay a total of $9,500,000
into the Glatfelter Sub-account of the Escrow Account in accordance with the
schedule specified by Paragraph 50.c.(4) of the Amended Consent Decree. As
specified in that Subparagraph, $3,000,000 shall be paid initially into the
Glatfelter Sub-account and an additional $6,500,000 of that payment shall be
secured through an irrevocable letter of credit (the “2009 LC”) on the
terms set forth in Subparagraph 50.c.(4) of the Amended Consent Decree. At
least five (5) business days before finalizing the 2009 LC, Glatfelter shall
afford the United States, the State and WTM an opportunity to review the
proposed letter of credit to assess whether it conforms to the requirements of
Subparagraph 50.c.(4) of the Amended Consent Decree The Escrow Agent shall
deposit the initial $3,000,000 and the subsequent $6,500,000 (whether drawn
under the 2009 LC or paid by Glatfelter in lieu of drawing on the 2009 LC)
into the Glatfelter Sub-account and segregated from other funds paid into the
Escrow Account. All interest



D3-2









 







and income earned on the funds deposited into the Glatfelter Sub-account
shall be deemed part of the Glatfelter Subaccount.




     h. Pursuant to Subparagraph 50.c.(4) of the Amended Consent Decree,
Glatfelter has the option of depositing into the Escrow Subaccount immediately
available funds in the amount of $6,500,000 in substitution for the undrawn
2009 LC before January 15, 2009. In the event that Glatfelter makes such
deposit of funds, said funds shall be deposited into the Glatfelter
Sub-account and segregated from other funds paid into the Escrow Account. All
fees, taxes and expenses (including without limitation expenses, fees and
attorneys’ fees of the Escrow Agent) associated with the 2009 LC, or its
cancellation, shall be paid by Glatfelter and not from the Escrow Account, or
any of its Sub-accounts.




     i. If Glatfelter and WTM make any additional payments to the Escrow
Account as provided for in Subparagraph 50.c.(5) of the Amended Consent
Decree, each company’s payment shall be deposited into that company’s
respective Sub-account, together with all interest and income earned on the
fund so deposited.



     2. Section 4 — Order of Disbursement of Funds. Subsection 4.d of the Escrow Agreement
shall be modified and Subsection 4.e. shall be added to read as follows:




     d. The Escrow Agent shall disburse the funds held in the Escrow Account
to make payments in accordance with Section 4.a of the Escrow Agreement as
follows: (1) first from the Existing Funds until the entire amount of the
Existing Funds, including all interest and income earned on the Existing
Funds, have been fully expended, and then (2) from the WTM Sub-account and the
Glatfelter Sub-account in equal amounts, on a 50/50 basis.




     e. In the event that the Existing Funds and Glatfelter Subaccount are
both expended (i.e., have a balance of $0) prior to Glatfelter’s $6,500,000
payment, due no later than January 15, 2009 pursuant to Amended Consent Decree
Subparagraph 50.c.(4), disbursements shall be made solely from the WTM
Sub-account until funds are deposited into the Glatfelter Sub-account at which
time disbursements shall be made solely from the Glatfelter Sub-account until
the balances in the WTM and Glatfelter Sub-accounts are equal. Thereafter,
all disbursements shall be made in accordance with Subsection 4.d. of the
Escrow Agreement (as set forth in Paragraph 2.d. of this Amendment No. 2).



     3. Continuance of Escrow Agreement. Except as specifically amended by this Amendment
No. 2, the Escrow Agreement, as amended by Amendment No. 1, shall remain in full force and effect.



D3-3









 





     4. Binding Effect. This Amendment No. 2 shall be binding upon Glatfelter, WTM, the
LLC, the Escrow Agent, and their respective successors and assigns.



     5. Severability. If any section of this Amendment No. 2, or portion thereof, shall be
adjudged illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall
not affect the legality, validity, or enforceability of this Amendment No. 2, as a whole, or of any
other section or portion thereof not so adjudged.



     6. Governing Law. This Amendment No. 2 shall in all respects be governed by, and
construed in accordance with, the laws of the State of Wisconsin applicable to agreements made and
to be performed entirely within such State, including without limitation all matters of
construction, validity, and performance; provided, however, that the rights and duties of the
Escrow Agent shall be governed under New York law..



     7. Interpretation. As used in this Amendment No.2, words in the singular include the
plural and words in the plural include the singular; the masculine and neuter genders shall be
deemed to include the masculine, feminine and neuter. The section headings contained in this
Amendment No. 2 are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Amendment No. 2.



     8. Counterparts. This Amendment No. 2 may be executed in two or more counterparts,
each of which shall be deemed to be an original but all of which together shall constitute one and
the same instrument. Each of the parties to this Amendment No. 2 agrees that a signature affixed
to a counterpart of this Amendment No. 2 and delivered by facsimile or electronic transmission by
any person is intended to be its, his, or her signature and shall be valid, binding and enforceable
against such person.



* * * * *




D3-4









 








     IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 as of the Amendment
No. 2 Effective Date.



	 	 	 	 	 
	 	 	P. H. GLATFELTER COMPANY
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	WTM I COMPANY
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	GW PARTNERS, LLC
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS as Escrow Agent
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 






D3-5











 




The forgoing Amendment No. 2 is hereby approved by the Beneficiaries as of the Amendment No. 2
Effective Date.




	 	 	 
	FOR THE UNITED STATES OF AMERICA

	 	 
	 
	 	 
	RONALD J. TENPAS
	 	 
	Assistant Attorney General
	 	 
	Environmental and Natural Resources Division
	 	 
	 
	 	 
	/s/ Randall M. Stone
 


	 	 
	RANDAL M. STONE
	 	 
	Senior Attorney
	 	 
	Environmental Enforcement Section
	 	 
	U.S. Department of Justice
	 	 
	 
	 	 
	/s/ Richard Murawski
 


	 	 
	RICHARD MURAWSKI
	 	 
	Associate Regional Counsel
	 	 
	U.S. Environmental Protection Agency
	 	 
	Region 5
	 	 
	 
	 	 
	FOR THE STATE OF WISCONSIN
	 	 
	 
	 	 
	 

BRUCE BAKER

	 	 
	Deputy Administrator, Division of Water
	 	 
	Wisconsin Department of Natural Resources
	 	 
	 
	 	 
	/s/ Cynthia Hirsch
 


	 	 
	CYNTHIA HIRSCH
	 	 
	Assistant Attorney General
	 	 
	Wisconsin Department of Justice
	 	 






D3-6









 






Consent Decree Appendix E




Special Procedures for Restoration Work




[Intentionally Omitted]




E-1









 






Consent Decree Appendix F




Administrative Order on Consent between WTM I Company, EPA, and WDNR, captioned

In the matter of the Lower Fox River and the Green Bay Site, Docket No. V-W-’03-C-745

(including the Statement of Work for Remedial Design)




[Intentionally Omitted]




F-1









 






Consent Decree Appendix G




Map of Operable Unit 1




[Intentionally Omitted]




G-1









 






Consent Decree Appendix H




Record of Decision for Operable Units 1 and 2




[Intentionally Omitted]




Consent Decree Appendix H1




Amended Record of Decision for Operable Unit 1




H1-1









 






Consent Decree Appendix I




Amended Statement of Work for Completion of the Remedial Design, the Remedial Action,

and other Response Work for the Operable Unit 1 at the Lower Fox River




[Intentionally Omitted]




J-1









 






Consent Decree Appendix J




Form of EPA Payment Directive




IRREVOCABLE LETTER OF CREDIT NO. XXXXXXXXXXX




(DATE)




PNC BANK, NATIONAL ASSOCIATION

500 FIRST AVENUE 3RD FLOOR

PITTSBURGH PA 15219




PAYMENT DIRECTIVE UNDER LETTER OF CREDIT NO. XXXXXXXXXX




     SIR OR MADAM:


I (STATE NAME AND TITLE) AM WRITING IN MY CAPACITY AS THE AUTHORIZED REPRESENTATIVE OF THE U.S.
ENVIRONMENTAL PROTECTION AGENCY (“EPA”), THE DESIGNATED BENEFICIARY UNDER THE ABOVE-REFERENCED
LETTER OF CREDIT (“LOC”). THE LOC WAS ESTABLISHED PURSUANT TO AN “AMENDED CONSENT DECREE FOR
REMEDIAL DESIGN AND REMEDIAL ACTION AT OPERABLE UNIT 1 OF THE LOWER FOX RIVER AND GREEN BAY SITE”
(“AMENDED CONSENT DECREE”) IN THE CASE CAPTIONED UNITED STATES AND THE STATE OF WISCONSIN V.
P.H. GLATFELTER COMPANY AND WTM I CO., CASE NO. 03-C0949 (E.D. WIS.), AND SUBPARAGRAPH 50(c)(4)
OF THAT AMENDED CONSENT DECREE SPECIFIED THAT THE FULL AMOUNT OF THE LOC (THE “PAYMENT AMOUNT”)
WOULD BE PAYABLE TO A DESIGNATED ESCROW ACCOUNT IMMEDIATELY UPON RECEIPT OF THIS PAYMENT DIRECTIVE
IF AN AMOUNT EQUAL TO THE PAYMENT AMOUNT WAS NOT PAID TO THE ESCROW ACCOUNT BY OR FOR THE ACCOUNT
OF P.H. GLATFELTER COMPANY (“THE GLATFELTER PAYMENT”) BEFORE JANUARY 15, 2009 AND THIS
CERTIFICATION IS DATED NO EARLIER THAN JANUARY 15, 2009.



EPA HEREBY CERTIFIES THAT THE GLATFELTER PAYMENT WAS NOT PAID BEFORE JANUARY 15, 2009 AND THAT THIS
CERTIFICATION IS DATED NO EARLIER THAN JANUARY 15, 2009, AS PROVIDED UNDER SUBPARAGRAPH 50(c)(4) OF
THE AMENDED CONSENT DECREE AND EPA THEREFORE DIRECTS YOUR INSTITUTION TO PAY THE FULL AMOUNT DUE
UNDER THE LOC ($ 6,500,000.00) IMMEDIATELY UPON RECEIPT OF THIS PAYMENT DIRECTIVE BY WIRE TRANSFER,
IN ACCORDANCE WITH THE FOLLOWING PAYMENT INSTRUCTIONS:




J-1









 








	 	 	 	 	 
	 

	 	PAYMENT AMOUNT: $6,500,000.00
	 	 
	 
	 	 	 	 
	 

	 	PAYEE: FOX RIVER OU1 ESCROW ACCOUNT	 	 
	 
	 	 	 	 
	 

	 	C/O DEUTSCHE BANK TRUST COMPANY AMERICAS	 	 






	 	 	 	 	 
	 

	 	 

SUPERFUND DIVISION DIRECTOR
	 	 
	 

	 	U.S. ENVIRONMENTAL PROTECTION 
AGENCY, REGION 5	 	 
	 	 
	WIRE TRANSFER INSTRUCTIONS:

	 	 	 	 






	 	 	 	 	 
	 

	 	DEUTSCHE BANK TRUST COMPANY AMERICAS
	 	 
	 

	 	ABA 021001033	 	 
	 

	 	ACCOUNT NAME: TRUST AND SECURITIES SERVICES	 	 
	 

	 	ACCOUNT NUMBER: 01419647 FCT	 	 
	 

	 	PAYMENT DETAILS: GLATFELTER SUB-ACCOUNT NO. 58528
 REF: FOX RIVER OU-1 ESCROW ACCOUNT	 	 
	 

	 	 	 	 







J-2