SS536

IN THE UHTTED STATES DISTRICT COURT

DISTRICT OF DT2H, CENTRAL DIVISION

UNITED STATE S OF AMERICA ,

Plaintiff ,

v.

SHARON STEE L CORPORATION, U V INDUSTRIES , INC. , U V INDUSTRIES , INC . LIQUIDATING TRUST , an d T H E ATLANTI C RICHFIEL D

COMPANY , INC. , Defendants .

) Civil Actio n Nos . 86-C-924J

UNITED STATE S OF AMERICA ,

Plaintiff ,

v.

SHARON STEEL CORPORATION, U V INDUSTRIES , INC. , U V INDUSTRIES , INC . LIQUIDATIN G TRUST , VALLEY MATERIALS CORPORATION, LITTLESON , INC. , CENTUR Y TERMINALS , INC. , an d BLACKHAWK SLAG PRODUCTS , INC. ,

_____________Defendants.

) Civil Action Nos . 89-C-136J

PARTIAL CONSENT DECREE

Thi s Partial Consent Decree ("Decree") is made and

entered into by and among the Plaintif f United States of America
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("United States" or "Plaintiff") , on behal f of the United State s

Environmental Protection Agency ("EPA" ) ; the Defendan t UV

Industries Inc. Liquidating Trust ("the Trust") , on behal f of

itsel f and, to the extent required or permitted by law, UV

Industries , Inc. ("UV") ; and the State of Utah ("the State") ,

pursuant to the applicable provisions of the Comprehensive

Environmental Response, Compensation and Liabilit y Act of 1980,

42 U.S.C . § 9101 et seq.. as amended by the Superfun d Amendments

and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat .

1613 (1986 ) ("CERCLA") ;

WHEREAS, the United States , o n behal f of the

Administrator of EPA, filed complaint s in the above captioned

actions pursuant to Section s 104, 106 and 107 of CERCLA, 42

U.S.C . §§ 9604, 9606 and 9607, for injunctive relief allegin g

imminent and substantial endangerments to public health, welfare

or the environment at two facilitie s located in Midvale, Utah,

and for reimbursement of costs incurred by the United States in

response to the alleged release or threatened release of

hazardous substances from these facilities , which have been named

by EPA as the "Sharon Steel/Midval e Tailings Site" ("Tailings

Site" ) an d the "Midvale Slag Site" ("Slag Site" ) (collectively ,

t he "Sites") ;

WHEREAS, the Tailings Site and the Slag Site both have

been nominated for inclusion, pursuant to Section 105 of CERCLA,

42 U.S.C . S 9605, on the National Priorities List ("NPL") ;
WHEREAS , the United State s allege s that , from

approximatel y 1906 to 1971, UV (then known as "United State s

Smeltin g Refinin g and Mining Company" and hereinafter referred to

as "USSRM") owned and operated certain ore beneficiatio n and

processing establishments at the two Sites;

WHEREAS, the Tailings Sit e (as hereinafter defined ) i s

located approximately twelve miles southwest of Sal t Lake City

and contains an estimated fourteen millio n tons of tailings

generated from millin g operations and processing conducted

between approximately 1906 and 1971;

WHEREAS, the tailings from the operations at the

Tailing s Sit e remain in the form of piles , ponds and

impoundments, which measure up to fort y or fift y feet in height

and allegedl y contain elevated levels of such hazardous

substances as arsenic, cadmium, chromium, lead and zinc;

WHEREAS, during the period from approximatel y 1906 to

1971, USSRM owned and operated various millin g facilitie s at the

Tailin g Site;

WHEREAS, the Slag Site is located to the north of the

Tailings Site , is comprised of approximately three hundred

nineteen (319 ) acres formerly owned and operated by USSRM, and

was used for smelting, refining, and other metals processing

operations and for the disposal of slag and other waste products

of such operations;

WHEREAS, USSRM operated a metal smelter at the S
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Sit e which, until 1958, refined copper, gold, lead and silver and

from which wastes were disposed of on the Slag Site;

WHEREAS, the United States alleges that each of the

Site s is a "facility," as defined in Sections 101(9 ) and 101(20 )

of CERCLA, 42 U.S.C . SS 9601(9 ) and 9601(20) , at or from which

hazardous substances, as defined in Sectio n 101(14 ) of CERCLA, 42

U.S.C . § 9601(14) , have been released;

WHEREAS, the shareholders of UV voted on March 26, 1979

to adopt a Plan of Liquidation and Dissolution (the "Plan") and,

as a part of that Plan , authorized the establishment of the Trust

f or the purpose of receiving on their behalf , prior to

dissolution , a distribution of any remaining assets of UV not

then reasonably susceptible to pro rata distribution to them;

WHEREAS, liquidation of UV was accomplished by the sale

of all of UV's businesses and other transferable assets in three

separate transactions, culminating in the sale of all then

remaining transferable assets (includin g the Tailings Site and a

portion of the Slag Site ) to Sharon Steel Corporation on November

26, 1979, pursuant to the terms of an Agreement for Purchase of

Assets bearing that date;

WHEREAS, on March 24, 1980, UV distributed, within the

meaning of applicable provisions of the Internal Revenue Code,

all its remaining assets to the Trust;

WHEREAS, the Trust is a person, as defined in

Section 101(21) of CERCLA, 42 U.S.C . S 9601(21) ;
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WHEREAS, the United State s alleges that hazardous

substances at or from the Sites have been or are being released,

or threatened to be released, as defined in Section 101(22 ) of

CERCLA, 42 U.S.C . { 9601(22} , into the environment through, inter

alia, ground water flow , surface water flow , direct depositio n

into soils, and wind dispersion into the air;

WHEREAS, the United State s alleges that it has

responded and will continue to respond to the release and

threatened releases of hazardous substances at the Site s and

thereby has incurred and will continue to incur response costs

within the meaning of Section s 101(25 ) and 107(a ) of CERCLA, 42

U.S.C . § § 9601(25 ) an d 9607(a) ;

WHEREAS, the United State s alleges that the Trust has

succeeded to the liabilities of UV;

WHEREAS, the United States alleges that the Trust and

UV are responsible parties pursuant to Section 107(a ) of CERCLA,

42 U.S.C . { 9607(a) , and thereby liable under Sections 106 and

107 of CERCLA, 42 U.S.C . {{ 9606 and 9607, for releases and

threatened releases of hazardous substances at or from the Sites

into the surface water, ground water, land surface, subsurface

strata, and the ambient air in the vicinity of the Sites;

WHEREAS, the Trust contends that the Plan which was

adopted by UV's shareholders was designed to satisfy , and did in

all respects satisfy , the requirements of federal and state law

governing liquidations and dissolutions of this type, including

Section 337 of the Internal Revenue Code of 1954, as it then
existed, and the Maine Business Corporation Act , which the Trus t

contends applied because UV was a Maine corporation;

WHEREAS, the Trust contends that, pursuant to the Plan ,

UV wound up its business affair s and liquidated by means of the

sale of its businesses and other assets during the succeeding

twelve month period and, on March 24, 1980, distributed all of

its remaining assets to its shareholders in a final liquidatin g

distribution by transferrin g those assets to the Trust;

WHEREAS, the Trust contends that since March 25, 1980,

the date on which UV was legall y dissolved, UV has not existed,

has had no assets, has conducted no business, and has had no

corporate organization, officers , directors, or employees;

WHEREAS, the Trust contends that, under governing

principles of Federal and Maine law, no actions could be brought

against UV unless commenced within two years of its legal

dissolution ;

WHEREAS, the Trust contends that any responsibility or

liabilit y which it might have for the acts of omissions of UV

would be entirely derivative and would not be valid or

enforceable unless an action thereon was commenced within two

years o f UV' s dissolution;

WHEREAS, the Trust contends that it is not liable in

these actions by reason of the fact , among others, that no

proceeding of any kind was initiated by the United States against

UV or the Trust until more than five years after UV dissolved;
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WHEREAS, the Trust has raised numerous other defenses

and has contested, and continues to contest, allegation s made by

t he United States;

WHEREAS, a victory by the United State s on the

principal defenses raised by the Trust would, in all likelihood,

ultimatel y result in judgment s which would completel y exhaust the

remaining assets of the Trust;

WHEREAS, a victory by the Trust on the principal

defenses which it has raised would bar recovery by the United

State s and third parties in the present actions and in any other

pendin g or future actions brought under environmental statutes;

WHEREAS, the United States and the Trus t each recognize

and acknowledge that continuing litigatio n not only imposes

significan t litigatio n risks but also would inevitably increase

costs, delay resolution, and substantially diminish the effective

worth of victory to the party which ultimatel y prevails;

WHEREAS, the United States and the Trust wish to

compromise and settle all claims relating to these actions,

without admitting or conceding the validity of the allegations ,

claims, and contentions advanced by the other party, and to do so

in a way which will permit an immediate recovery of substantial

monies by the United States while at the same time permitting a

distribution, after payment of Trust expenses, of the remaining

monies to beneficial unitholders of the Trust and a final winding

up of the affair s of the Trust and termination of the Trust' s

existence;
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WHEREAS, the Trust and the United State s agree to

undertake all activities and complete all actions required of

them respectively by this Decree;

WHEREAS, in consideration of, and in exchange for, the

promises and covenants herein, and intending to be legall y bound

hereby, the Trust , the United States , and the State, by their

authorized representatives, have agreed to entry of this Decree,

subject to the provisions of Section XIII.A. hereof and 28 C.F.R .

§ 50.7;

WHEREAS, settlement of these matters governed by this

Decree is in the public interest and an appropriate means of

resolving these matters;

THEREFORE, without adjudicatio n of any issue of law or

fact and upon the consent of the parties thereto, it is hereby

ORDERED, ADJUDGED AND DECREED, as follows:

I .

DEFINITION S

In this Decree, the followin g terms shall have the

followin g meanings:

A. "Actions" means Civil Nos . 86-C-924J and

89-C-136J, presently pending in this Court.

B. "Cash" means United States dollars in immediately

available funds.
• Q «•

C. "Court" means the United State s District Court for

the District of Utah, Central Division.

D. "Tailings Site" means the mil l site (includin g

tailings and mill buildings) , as described in Exhibit "A" annexed

hereto, and soils and ground water beneath and down gradient of

the mill site, any impacted area adjacen t to and in the vicinity

of the mill site, and any other areas necessary for the

performance of the remedy.^-

E. "Slag Site" means the former smelting and refinery

site (includin g smelting and refinin g waste piles , buildings and

other structures), as described in Exhibit "B" annexed hereto,

and soil s and ground water beneath and down gradient of the

smelting and refinery site, the impacted areas adjacen t to and in

the vicinity of the smelting and refinery site, and any other

areas necessary for the performance of the remedy.2

F. "Non-Settlin g Defendants" means Atlantic Richfield

Company, Inc. , Valle y Material s Corporation, Littleson , Inc. ,

Century Terminals , Inc. , and Blackhawk Slag Products, Inc.

G. For purposes of Section IV C. 2. of this Decree,

the phrase "legal fees and expenses incurred by the Trust in

1

 The vertical and lateral extent of the Tailings Sit e and

the impacted area of the Tailings Site will be determined in one

or more Records of Decision for the Tailings Site , to be issued

in the future.

2

 The vertical and lateral extent of the Slag Site and the

impacted area of the Slag Site will be determined in one or more Records of Decision or Action Memoranda for the Sla g Site , to be

issued by EPA in the future.
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obtaining such payment" shall include any payment to Sharon Stee l

Corporation to obtain a release of its actual or potential claims

against the insurance carriers who are parties in Civil Action

Nos . C-87-2306 and C-88-04792 in the Third Judicial District

Court of Sal t Lake County, Utah.

H. "Person" shall have the meaning set forth in

Sectio n 101(22 ) Of CERCLA, 42 U.S.C . { 9601(22) .

I. "Remedial Action" means those actions consistent

with permanent remedy(ies) at the Tailings Sit e and the Sla g

Site , to be set forth in the final Records of Decision for each

of the Sites , as described in Section 117 of CERCLA, 42 U.S.C .

{ 9617, or any modification s thereof consistent with CERCLA. J. "Response" shall have the meaning set forth in

Section 101(25 ) Of CERCLA, 42 U.S.C . { 9601(25) . K. "Response Costs" means any costs which the United

States has sought in the Actions.

L. "State" means the State of Utah and its

agencies. , M. "Trustees" means the Liquidating Trustees of the

UV Industries, Inc. , Liquidating Trust. N. "UV Industries, Inc. Liquidating Trust" ("the

Trust") means that entity the creation of which was authorized by

a vote of the shareholders of UV Industries, Inc. on March 26,

1979, and the creation of which was effectuated by the UV

Industries , Inc. Liquidatin g Trust Agreement executed on

March 24, 1980; provided, however, that for purposes of Sections
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VI and VII of this Decree, it shall also mean the Liquidatin g

Trustees and the employees, agents and beneficial unitholders of

the Trust , solely in their respective capacities as such. Thi s

definitio n of the term "the Trust" shall not include any past or

present parent , subsidiary , or business affiliat e of UV

Industries , Inc. , or of the Trust.

O. "UV Industries, Inc." ("UV" ) means UV Industries,

Inc. as it existed on March 24, 1980; provided, however, that for

purposes of Section s VI and VII, it shall also mean the former

officers , directors, employees, agents and shareholders of UV,

solely in their respective capacities as such. Thi s definitio n

of the term "UV" does not include any past or present parent,

subsidiary, or business affiliat e of UV Industries , Inc. , or of

the Trust.

I I . JURISDICTIO N

Thi s Court has jurisdictio n over the subject matter

herein, and over the parties consenting hereto, pursuant to

Sections 106, 107 and 113 of CERCLA, 42 U.S.C . {{ 9606, 9607 and

9613, and 28 U.S.C . {{ 1331 and 1345.

III . PARTIES BOUND

Thi s Decree applies to and is binding upon the Trust ,

U V, the State , and the United States . Each undersigned
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representative certifies that he or she is or will be, on or

before the effective date of this Decree, full y authorized by the

party whom he or she represents to enter into the terms and

conditions of this Decree and to execute and legall y bind the

party hereto. The Trust , UV, and the State agree not to contest

the jurisdictio n of the United States to maintain the Actions.

I V .

PAYMEN T O F TH E UNITE D STATES RESPONS E COST S

In ful l an d complete satisfactio n of al l of UV' s an d

t he Trust' s alleged liabilities , duties, an d responsibilities

arising out of or relating to the Action s and the Site s (except

as limited by Section VII B., C., and D and in consideration of

the Covenant not to Sue set forth in Section VII A. hereof , the

United States shall receive the followin g consideration:

A. Subject to the provisions of paragraph B. of this

Section , on the firs t business day followin g the day sixty (60 )

days after the date of entry of this Decree, the Trust shall pay

to the United States an amount equal to sixty (60 ) percent of the

"adjusted value" of all cash, direct United States Treasury

Obligations, accumulated interest receivable on such United

States Treasury Obligations, and any cash equivalents under the

control of the Trustees. 3

3

 It is agreed by the Parties that monies held in Account

no. 101-65E by the Mello n Bank Trust Department, as Exchange Agent for the Trust , are not under the control of the Trustees
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B. For purposes of calculating the amount of the

payment required by paragraph A. of this Section , the "adjusted

value" of cash, direct United State s Treasury Obligations ,

accumulated interest receivable on such United States Treasury

Obligations, and cash equivalents shall be determined as provided

in this paragraph and in paragraph C.

1. If this Decree receives final approval and is

not subject to further challenge or appeal prior to the

expiration of sixty (60 ) days from the date of entry by the

Court, the "adjusted value" of cash, direct United States

Treasury Obligations , accumulated interest receivable on such

United States Treasury Obligations, and cash equivalents shall be

the total value of such assets, fixed as of the day twenty-five

(25 ) business days from the date of entry of this Decree, minus

the sum of $750,000, and payments shall be made as provided in

sub-paragraph D.I . of this Section.

2. If this Decree receives final approval and is

subject to further challenge or appeal prior to the expiration of

sixty (60 ) days from the date of entry by the court, and provided

that any such challenge or appeal is finall y resolved prior to

the expiration of twelve (12 ) months from the date of entry by

the Court, the "adjusted value" of cash, direct United States

Treasury Obligations, and cash equivalents shall be the total

and shall not be considered a part of the Trust estate for any

purposes related hereto.
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value of such assets, fixed as of the day twenty-five (25 )

business days from the date of entry of this Decree, minus the

sum of $750,000, and payments shall be made as provided in

sub-paragraph D.2. of this Section.

3. If, because of the pendency of litigatio n

initiated or maintained by a Non-Settlin g Defendant or any

intervenor or other party or third party, this Decree does not

receive final approval and remains subject to further challenge

or appeal on or after the expiration of twelve months from the

date of entry by the Court, then the "adjusted value" as set

forth in sub-paragraph B.2. of this Section , shall also be deemed

to exclude the additional sum of $50,000 for each month

subsequent to the firs t anniversary date of the entry of the

Decree by this Court, until final approval , and payments shall be

made as provided in sub-paragraph D.2. of this Section.

C. Followin g the payment required by paragraph A. of

this Section , the Trust shall make or cause to be made further

payments to the United States pursuant to the provisions of this

paragraph C.

1. Within ten (10 ) business days of the date

that any additional cash is deposited with any financial

institution, into any account under the control of the Trustees

or for the benefit of the Trust, the Trust shall pay or cause to

be paid to the United States in cash an amount equal to sixty

(60 ) percent of such deposited amount; provided, however, that no

such payment shall be made upon the deposit or accrual of
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interest paid to or earned by the Trust on assets which have

already been subject to the valuation and payment provided for in

paragraphs A, B, and C of this Section , and provided further that

no such payment shall be made upon (a) monies received pursuant

to sub-paragraphs B.3. and D.2 of this Section ; or (b) monies

received from any insurance carrier in reimbursement of the

Trust' s defense costs in the Actions or any other actions, unless

such costs had been paid by the Trust prior to the calculation of

the "adjusted value" pursuant to sub-paragraphs B.I . and B.2. of

this Section.

2. In the event that any cash deposited into any

such account constitutes a payment to the Trust by Sharon Stee l

Corporation or by one or more insurance carriers that issued

comprehensive general liabilit y policies to UV, then prior to

calculatin g the amount equal to sixty (60 ) percent of such

deposited amount to be paid to the United States , the Trust may

subtract the reasonable costs of collection , including legal fees

and expenses incurred by the Trust in obtaining such payment.

D. Payments required under the provisions of

paragraphs A, B, and C of this Section shall be made by the Trust

as follows:

1. If this Decree receives final approval by the

Court and is not subject to further challenge or appeal prior to

the expiration of sixty (60 ) days from the date of entry by the

Court, then the Trust shall make the required payments by wire

transfer to the "Hazardous Substances Superfund." The wire
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transfer shall reference the name UV Industries , Inc. Liquidatin g

Trust and the Sites , and shall be directed to the followin g

address:

Mello n Bank

E PA Region VIII ATTN: Superfun d Accounting P. O. BOX 360859M Pittsburgh, PA 15251

2. If this Decree receives final approval by the

Court, but is subject to further challenge or appeal prior to the

expiration of sixty (60 ) days from the date of the entry by the

Court, then, until all challenges or appeal s are finall y

resolved, the Trust shall make required payments into an

interest-bearing escrow account with a financial institution to

be named in writing by the United States . The instructions to

the escrow account trustee, which shall be signed by

representatives of the United States and the parties, shall

provide, inter alia, (i) that in the event the Decree is upheld

after all challenges and appeal s are exhausted, the entire

balance of the account, including accrued interest, shall be

delivered to the Hazardous Substances Superfund, at the address

set forth in sub-paragraph D.I . of this Section ; (ii ) that in the

event the order of this Court entering this Decree is finall y

reversed and set aside, the entire balance in the account,

including accrued interest, shall be delivered to the Trust , at

the address and in the manner the Trust shall direct; (iii ) that

in the event that any appeal or challenge continues beyond twelve
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(12 ) months from the date of entry of this Decree, the escrow

account agent shall withdraw $30,000 on the firs t day of the

month followin g the anniversary date of the entry of this Decree,

and on the firs t day of each month thereafter until such appeal

or challenge is finall y resolved, and shall deliver this sum to

the Trust at the address and in the manner the Trust shall

direct, in accordance with the provisions of sub-paragraph B.3.

of Section IV; and (iv ) such other terms as the United States and

the Trust shall agree to in writing.

3. Whenever any payment is made by the Trust

pursuant to sub-paragraphs 1 or 2 of this Paragraph, the Trust

shall simultaneously send or deliver documents evidencing such

transfer to EPA at:

USEPA Region VII I (8RC )

999 - 18th Street , Suite 500 Denver, CO 80202-2405 ATTN: Assistant Regional Counsel Sharon Steel Midvale Tailings

and Remedial Cost Recover Coordinator (8HWM-SR)

999 - 18th Street , Suite 500 Denver, CO 80202-2405

and to the Department of Justice at:

Chief , Environmental Enforcement Section P. O. Box 7611 Ben Franklin Station Washington, D.C. 20044

E. The Trust shall have the right to distribute to

its unitholders, or to expend in any other manner consistent with

the purposes of the Trust and the powers and duties of the

Trustees, any and all monies not subject to payment to the United
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State s under this Section . The Trust may exercise this right at

such time and in such manner as it chooses, on any date after

entry of this Decree.

F. Should the Trust fai l to make any payment to the

United States required by this Decree on the date due, interest

on the amount of such payment shall accrue and be payable to the

United States on such amount at a rate equal to the coupon issue

yield equivalent (as determined by the Secretary of the Treasury)

of the accepted auction price for the last auction of 52-week

United States Treasury Bill s settled immediately prior to the

date when interest begins to accrue. In 'addition , should the

Trus t fai l to make any required payment, the Trust shall pay in

addition to amount required plus interest, stipulated penalties

in the amount of $5,000 per day for each day that any payment

required by Paragraph A. of this Section is past due and in the

amount of $2,500 per day for each day that any other payment

required by this Decree is past due; provided, however, that such

penalty shall not accrue if the Trust is prohibited from making

such payment by any order or law.

G. The Trust shall provide to the United States every

two months, commencing with the month after entry of this Decree,

financial statements disclosin g the assets, liabilities ,

expenses, and cash flo w of the Trust for such months.

V.

T H E STAT E
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In ful l an d complete satisfactio n of al l of UV' s an d

t he Trust' s alleged liabilities , duties, an d responsibilities

arising out of or relating to the Actions and the Sites , the

State hereby releases and agrees to hold UV and the Trust

harmless for (i) any and all claims relating to the Tailings Sit e

or the Slag Site , including, but not limited to, any claim for

Response Costs incurred by the State , any claim or costs incurred

by the State pursuant to any contract or cooperative agreement

with the United States pursuant to Section 104(e)(3 ) of CERCLA,

and any claim for damage to natural resources belongin g to,

managed by, appertainin g to, or otherwise controlled by the Stat e

or under its trusteeship pursuant to Section 107(f)(2 ) of CERCLA,

and (ii ) any and all other claims regarding environmental matters

as to the Sites or any other sites, regardless of whether such

claims exist at the effective date of this Decree or come into

existence after such effective date.

V I .

EFFECT OF SETTLEMENT

A. The compromise and settlement contained in this

Decree was reached after extensive negotiations among the

parties. Thi s Decree represents a compromise between the parties

with respect to the alleged liability of the Trust and UV arising

out of or relating to the Actions.
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B. By virtue of the payment of the amounts identified

in Section IV of this Decree, the Trust and UV shall have finall y

and completel y resolved all alleged liabilities of the Trust and

UV to the United State s for the matters covered by the Covenant

N ot to Sue in Section VII A. hereof and are hereby released

therefrom. With regard to claims for contribution against the

Trust or UV by the Non-Settlin g Defendants and Non-Settlin g Third

Party Defendant s in the Actions, and any other Person entitled to

bring a claim against the Trust or UV under Sectio n 107(a ) of

CERCLA relating to the matters covered by Section VILA hereof ,

the parties hereto agree, and this Court hereby finds and

concludes, that the statutory provisions of Section 113(f)(2 ) of

CERCLA, 42 U.S.C . § 9613(f)(2) , shall govern.

C. If the Trust fail s to make any payment required by

Section IV of this Decree, then, upon the expiration of 30 days

from the date of the Trust' s receipt of written notice of such

failure , if such required payment then remains outstanding and

unpaid, the Trust and UV shall lose the benefi t of this

Section VI; provided, however,, that if the Trust fail s to make a

required payment as a result of the fact that the making of such

payment would violate a law, rule of law, or an order applicable

to the Trust or Trustees, then, subject to the provisions of

Paragraph D. below, the Trust and UV shall not lose the benefit

of this Section VI. If the Trust or Trustees believe that the

making of any payment required pursuant to this Decree would

violate a law, rule of law, or an order applicable to the Trust
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or Trustees , then the Trust shall notif y the United States as

soon as the Trust learns of the circumstance leading to such

impediment to such payment. The provisions of Section X on

Dispute Resolution shall then apply .

D. If, as the result of the dispute resolution

process referred to in Paragraph C., the Court finds that any

payment required by this Decree would violate a law, rule of law,

or order applicable to the Trust or Trustees , then the Trust

shall lose the benefi t of this Section VI and the Covenant Not to

S ue contained in Section VII A. hereof , but only to the extent of

any required payments not made as a result of such finding.

E. Nothin g herein shall be deemed to adversely affec t

t he Trust' s or UV' s rights against an y Non-Settlin g Defendant , or

any other potentiall y responsible party, other than the State.

F. Subjec t to the terms and conditions of this

Decree, and upon this Decree becoming final and effective: (i)

the complaint of the United States against UV and the Trust and

the counterclaim asserted by UV and the Trust against the United

States in Civil Action No. 86-C-924J shall be dismissed; and (ii )

the complaint of the United States against UV and the Trust in

Civil Action No. 89-C-136 shall be dismissed.

G. The United States and the State expressly reserve

the right to bring actions or continue to proceed with the

present actions, against any Person other than UV or the Trust

who or which has not resolved its liabilit y to the United States

or the State respecting the Tailings Site or the Slag Site .
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H. The Trust agrees that with respect to any suit or

claim for contribution brought against it for matters covered by

this Decree, it will timely notif y the United States , in

conformance with Section VIII hereof , of the institution of such

suit or claim.

f] I. No previous ruling of this Court in the Actions on

''~'\ ~

i any issue of law or fact shall be deemed to be binding upon the

1

' £. parties hereto for any purpose in any other action or legal

"f - • ':": proceeding of any type or kind.

;,j

4 VII .

COVENANT NOT TO SUE

A. Except as specificall y provided hereafter in

Section VII C. and D. hereof , the United States and the State

• hereby covenant not to sue UV, the Trust , or any Trustee thereof

(in their capacity as trustee) regarding the followin g matters:

1. Any matter alleged in either or both of the

Actions , including any future liabilit y with regard to the

Tailings Sit e or the Sla g Sit e and any liabilit y which might

arise as a result of the redisposal of any hazardous

substances as required by Remedial Action conducted at

either of the Sites;

2. Any matter relating to the Re-Solve, Inc.

Superfun d site located in North Dartmouth, Massachusetts.

B. Beyond the matters addressed in Paragraphs A.I .

and 2. of this Section, the United States is unaware of any other
- 23 -

claims against UV or the Trust which it now or in the future may

assert on behal f of the Environmental Protection Agency pursuant

to the followin g statutes: Comprehensive Environmental Response,

Compensation and Liabilit y Act , 42 U.S.C . § 9601 et seq.; Solid

Waste Disposal Act , as amended by the Resource Conservation and

Recovery Act , 42 U.S.C . § 6901 et sea.; Saf e Drinking Water Act ,

42 U.S.C . § 300f et seq.; Federal Water Pollution Control Act , 33

U.S.C . § 1251 et seq.; Clean Air Act , 42 U.S.C . § 7401 et seq.;

Toxic Substances Control Act , 15 U.S.C . § 2601 et seq.; and

Federal Insecticide, Fungicide, and Rodenticide Act , 7 U.S.C .

§ 136 et seq. Beyond the matters addressed in Paragraphs A.I .

and 2. of this Section , the United State s is also unaware of any

claims against UV or the Trust for damages to natural resources

which it now or in the future may assert on behal f of the

Department of the Interior pursuant to Section 107(a)(4 ) (C) of

CERCLA, 42 U.S.C . § 9607(a)(4)(C) . Accordingly , to allow for the

orderly liquidation and termination of the Trust in accordance

with this Consent Decree, the United States agrees not to assert

any such claims in the future on behalf of the Environmental

Protection Agency or the Department of the Interior or to

otherwise object to or oppose the distribution of assets

remaining in the Trust to the unitholders thereof.

C. Thi s Section shall not be construed as a Covenant

not to Sue any other Person, other than UV, the Trust , or any

Trustee thereof. Thi s Covenant not to Sue applies only to UV,

the Trust , the Trustees, the United States , and the State.
- 24 -

D. Thi s Covenant not to Sue shall not appl y to the

following:

1. Claims based on criminal liability ;

2. Claims based on the failure to comply with

this Decree;

E. For and in consideration of the covenants and

promises made herein, UV, the Trust and the Trustees covenant not

to sue or otherwise assert any cause of action, claim or demand

against the United State s or the State , including any claim

pursuant to Section 112 of CERCLA, 42 U.S.C . § 9612, or any other

provision of law, directly or indirectly, or against the

Hazardous Substance Superfun d established by 26 U.S.C . § 9507, or

other claims against the United States or the State related to

the Sites , the Actions , or this Decree; provided, however, that

this Covenant not to Sue shall not appl y to claims based on the

failure of the United State s to comply with this Decree.

F. Nothin g in this Decree shall constitute

preauthorization of a CERCLA claim within the meaning of 40

C.F.R . § 300.25(d) .

VIII . NOTICE S

Unless otherwise stated in this Decree, whenever the

terms of this Decree require that notice be given, it shall be

directed in writing, by certified or registered mail, return

receipt requested, to the followin g individuals at the addresses
- 25 -

specified below, or to such other individual or address as such

individual may from time to time designate by notice:

A. If to the United States:

1. United States Department of Justice Chief , Environmental Enforcement Section Land and Natural Resources Division Room 1541 (EES DOCKETS)

10th and Pennsylvania Avenue, N.W . Washington, D.C. 20044

2. Assistant Regional Counsel for the Sharon Steel / Midvale Sla g Site s 8RC United States Environmental Protection Agency

999 18th Street , Suite 500 Denver, CO 80202-2405

3. Remedial Cost Recovery Coordinator (8HWM-SR) United States Environmental Protection Agency

999 18th Street , Suite 500 Denver, CO 80202-2405

4. EPA Regional Project Manager —8HWM-S R Sharon Steel/Midval e Tailings Sit e United States Environmental Protection Agency

999 18th Street , Suite 500 Denver, CO 80202-2405

5. EPA Regional Project Manager — 8HWM-SR Midvale Slag Site United States Environmental Protection Agency

999 18th Street , Suite 500 Denver, CO 80202-2405

B. If to the State:

1. Fred 6. Nelson , Esq. Assistant Attorney General State of Utah

124 State Capitol Sal t Lake City, UT 84114

C. If to the Trust:
- 26 -

1. Paul Kolto n Chairman UV Industries , Inc. Liquidatin g Trust

401 Merritt 7 P.O. Box 5116 Norwalk, CT 06856-5116

2. Kenneth A. Leach Trust Office r UV Industries , Inc. Liquidating Trust

1370 Avenue of the Americas N ew York, N.Y . 10019

3. Norton F. Tennille , Jr. Jones , Day, Reavis & Pogue Metropolita n Square

1450 G Street , N.W . Washington , D.C. 20005

4. Roger D. Feldma n Gaston & Snow

1 Federal St. Boston, MA 02110

I X . MODIFICATION . SECTIO N HEADING S

A. Except as specificall y provided in this Decree or

by the Federal Rules of Civil Procedure, no modification s shall

be made to this Decree without notice to and prior written

approval of the United States , the Trust , the State , and the

Court.

B. All headings herein are for convenience only and

•

are in no way to be construed as a part of this Decree or a

limitation of the scope of the provisions to which they may

refer.
- 27 -

X.

DISPUT E RESOLUTION

If any dispute arises between the parties with respect

to any matter provided for by this Decree, such dispute shall in

the firs t instance be the subject of good faith informal

negotiations between the parties in an attempt to resolve such

dispute. If such discussions fai l to resolve the dispute, then

the disputed matter shall be submitted to the Court for

resolution.

i X I .

RESPONS E AUTHORIT Y

Nothin g in this Decree shall be deemed to limit the

response authority of the United States under Section 104 of

CERCLA, 42 U.S.C . § 9604, or any other law or regulation, or to

alter the applicable legal principles governing judicial review

of any action taken by the United States pursuant to that

authority.

XII . WITNESSES AN D DOCUMENT S

Notwithstandin g any other provision of this Decree, the

Trust agrees to make adequate provision to maintain all records
- 28 -

relevant to the Actions and to cooperate full y with requests from

the United States to provide access to such nonprivileged

documents and to use its best effort s to encourage cooperation

and testimony by the former employees, contractors, and potential

witnesses of UV, and the Trust , that is relevant to the Actions

and the Site s until both Actions have been full y resolved through

the entries of final judgments and the resolution of any and all

appeal s therefrom. The Trust agrees that sixty days prior to

any disposal or destruction of such nonprivileged documents, the

Trust will notif y the United State s in writing and provide the

opportunit y to the United States to take custody of such

documents.

XIII .

ENTRY . EFFECTIV E AN D TERMINATION DATES

A. If determined to be appropriate, consistent with

the provisions of 28 C.F.R . § 50.7, entry of this Decree by the

Court shall be sought as soon as practicable after the expiration

of the public notice and comment period provided with respect to

this Decree.

B. Thi s Decree shall not become final or effective

until it has been unconditionally approved and finall y entered by

this Court.

C. After all of the Trust' s payments to the United

States have been made pursuant to Section IV above, the Trust

shall notif y the United States of its completion of such payments
- 29 -

a nd its intention to (i) finall y liquidate and distribute all

remaining assets in the Trust corpus after providing for such

expenses as shall be necessary, and (ii ) terminate its existence

in accordance with applicable laws. Within thirty days after

receipt of such notice this Decree shall terminate without

further action by this Court or the parties unless the United

States invokes the Dispute Resolution provisions of this Decree.

Termination shall not affec t the provisions of Sections I, III ,

I V , V , VI , VII , VIII , IX , XII , XIV , an d X V hereof. Nothin g i n

this Sectio n shall limit the Trustees authority to make

distributions to unitholders prior to such termination, as

provided in Sectio n IV.

XIV .

COST S :

Each party hereto shall bear its own costs and

attorney' s fees except as otherwise provided herein.

X V .

RETENTION OF JURISDICTION

A. Thi s Court shall retain jurisdiction of this

Decree as it relates to the Actions for purposes of ensuring

compliance with its terms and conditions.

B. The United States , the State and the Trust each

retains the right to seek enforcement of the terms of this Decree

and to take any action authorized by Federal Law not inconsistent
- 30 -

with the terms of this Decree to achieve compliance with the

terms and conditions of this Decree.

T HE PARTIES ENTER INT O THI S PARTIAL CONSEN T DECREE AND

SUBMIT IT TO THE COURT, THAT IT MAY BE APPROVED AND ENTERED .

lUSTRIES , IN C TRUST

PAUL KOLTON, Trustee as Trustee

of the UV Industries, Inc. Liquidatin g Trust and not

individuall y

F OR THE STATE OF UTAH

G. NELSON Assistant Attorney General State of Utah

2 36 State Capitol Sal t Lake City , Utah 84114

By.

/

/

JCRIS D. BICKNEI^T Greengard & Senter

400 S. Colorado Boulevard Suite 700 Denver, Colorado

KENNETH L. ALfcEMA, Director Department of Health Division of Health

288 North, 1460 West P.O. Box 16690 Sal t Lake City, Utah 84116-0690

* The Stat e of Utah' s agreement i s conditioned upon the U.S . Environmental Protection Agency' s execution of an

 Adm^i||r

^i^ Orde t r on Consent, the unexecuted version of which is dated Augusr

2 0, 1990, that has been negotiated between the U.S . Environmental

Protection Agency and the Stat e of Utah.
- 31 -

F OR TH E UNITED STATES :

RICHARD B. STEWART Assistant Attorney General

Environment and Natural Resources Division United States Department of Justice

10th & Pennsylvania Avenue, N.w . Washington, D.C. 20530

W . BENJAMIN FISHEROW JOEL M. GROSS DAVIE} E. STREET GAR Y J . FISHER LESLI E A. HULS E Environmental Enforcement Section

Environment and Natural Resources Division

10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530

DEE/V. BENSON>T United Statei>Attorney District of Utah U.S . Courthouse

350 South Main Street Sal t Lake City, Utah 84101

DANIEL PRICE Assistant United States Attorney District of Utah U.S . Courthouse

350 South Main Street Sal t Lak« City, Utah 84101

»>
F O R TH E UNITE D STATE S

ENVIRONMENTA L PROTECTION AGENC Y

JAMES M. STROCK Assistan t Administrator T or Enforcement U.S . Environmental Protection Agency

4 01 M Street , S.W . Washington , DC 20460

JAMES SCHERER Regional Administrator U.S . Environmental Protection Agency Region vin

THOMA S SPEICHE R Regional counsel U.S . Environmental Protection Agency Region VII I

MATTHEW D. COHN Assistant Regional Counsel Region VII I

999 18th Street , suite 1300 Denver, Colorado 80202

Of COUNSEL

JOHN H. WHEELER NANCY A. HANGONE Offic e of Enforcement and Compliance Monitoring U.S . Environmental Protection Agency

401 H street, S.W . Washington , DC 20460
0 '? 13 i'?Ki 13=23 FROM EPH RegS REGIONAL CC'JhSEL 1C 6 501 383 40'rC F.0 2

OF COUNSE L

F O R TH E UNITE D STATES

ENVIRONMENTA L PROTECTION AGENC Y

JAMES M. STROCK Assistant Administrator

f or Enforcemen t U.S . Environnental Protectio n Agency

401 M Street , s.w. Wellington , DC 20460

1 ES SCHERER

^gional Administrator U'.S . Environmental Protectio n A g< Regioi

THO f Regional Counsel U.S . Environmental Protectio n Agency Region VII I

-,, . ~ MATlfHEW D COHN Assistan t Regional counsel Region VII I

9 99 18th Street , Suit e 1300 Denver, Colorado 80202

JOHN H . WHEELE R NANC Y A . MANGON E Offic e of Enforcement and

compliance Monitorin g U.S . Environmental Protection Agency

4 01 M Street , S.W . Washington , DC 20460

TOTAL P.02