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TABLE OF CONTENTS

I. BACKGROUND ........................................................................................................................1

II. JURISDICTION .........................................................................................................................5

III. PARTIES BOUND .....................................................................................................................5

IV. DEFINITIONS............................................................................................................................6

V. GENERAL PROVISIONS .......................................................................................................14

VI. PERFORMANCE OF THE WORK.........................................................................................16

VII. REMEDY REVIEW .................................................................................................................20

VIII. PROPERTY REQUIREMENTS ..............................................................................................22

IX. FINANCIAL ASSURANCE ....................................................................................................33

X. PAYMENTS FOR RESPONSE COSTS..................................................................................39

XI. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS ..........................................................43

XII. INDEMNIFICATION AND INSURANCE .............................................................................48

XIII. FORCE MAJEURE ..................................................................................................................51

XIV. DISPUTE RESOLUTION ........................................................................................................53

XV. STIPULATED PENALTIES ....................................................................................................57

XVI. COVENANTS BY PLAINTIFF...............................................................................................62

XVII. COVENANTS BY SETTLING PARTIES...............................................................................67

XVIII. EFFECT OF SETTLEMENT; CONTRIBUTION ...................................................................71

XIX. ACCESS TO INFORMATION ................................................................................................73

XX. RETENTION OF RECORDS...................................................................................................75

XXI. NOTICES AND SUBMISSIONS.............................................................................................77

XXII. RETENTION OF JURISDICTION ..........................................................................................79

XXIII. APPENDICES ..........................................................................................................................80

XXIV. MODIFICATION .....................................................................................................................80

XXV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT.............................................81

XXVI. SIGNATORIES/SERVICE.......................................................................................................81

XXVII. FINAL JUDGMENT ................................................................................................................82
1

I. BACKGROUND

A. The United States of America (“United States”), on behalf of the Administrator of 

the United States Environmental Protection Agency (“EPA”), 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, 9607.

B. The United States in its complaint seeks, inter alia: (1) reimbursement of certain 

costs incurred by EPA and the Department of Justice (“DOJ”) for response actions at the North 

Sanitary (aka “Valleycrest”) Landfill Superfund Site in Dayton, Ohio, together with accrued 

interest; and (2) performance of response actions by the defendants at the Site consistent with the 

National Contingency Plan, 40 C.F.R. Part 300 (“NCP”).

C. In accordance with the NCP and Section 121(f)(1)(F) of CERCLA, 42 U.S.C. 

§ 9621(f)(1)(F), EPA notified the State of Ohio (the “State”) on April 8, 2016, of negotiations 

with potentially responsible parties (“PRPs”) regarding the implementation of the remedial 

design and remedial action ("RD/RA") for the Site, and EPA has provided the State with an 

opportunity to participate in such negotiations and be a party to this Consent Decree. The State 

has notified EPA that it will not be a party to this Consent Decree.

D. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA 

notified federal trustees within the United States Department of the Interior on April 8, 2016, of 

negotiations with PRPs regarding the release of hazardous substances that may have resulted in 

injury to the natural resources under federal trusteeship and encouraged the trustees to participate 

in the negotiation of this Consent Decree.
2

E. The Settling Parties who have entered into this Consent Decree do not admit any 

liability to Plaintiff arising out of the transactions or occurrences alleged in the complaint, and 

they do not acknowledge that the release or threatened release of hazardous substances at or from 

the Site constitutes an imminent and substantial endangerment to the public health or welfare or 

the environment. 

F. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Site on 

the National Priorities List (“NPL”), set forth at 40 C.F.R. Part 300, Appendix B, by publication 

in the Federal Register on May 31, 1994, 59 Fed. Reg. 27989. 

G. In response to a release or a substantial threat of a release of a hazardous 

substance(s) at or from the Site, on January 21, 1995, the State of Ohio (“State”) reached an 

agreement with a group of PRPs to commence a Remedial Investigation and Feasibility Study 

(“RI/FS”) for the Site pursuant to an agreed administrative order, known as the Director’s Final 

Findings & Orders (“FFO”).

H. The State approved a Remedial Investigation (“RI”) Report in May of 2008, and a 

Feasibility Study (“FS”) Report in March of 2011. On July 30, 2012, EPA issued an Addendum 

to the FS Report (“FS Addendum”).

I. On August 2, 2012, pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA 

published notice of the completion of the FS and of the proposed plan for remedial action in a 

major local newspaper of general circulation. EPA provided an opportunity for written and oral 

comments from the public on the proposed plan for remedial action. A copy of the transcript of 

the public meeting is available to the public as part of the administrative record upon which the 

Director of the Superfund Division, EPA Region 5, based the selection of the response action.
3

J. EPA’s decision on the remedial action to be implemented at the Site is embodied 

in a final Record of Decision (“ROD”), executed on August 16, 2013. The State has concurred 

on the decision. The ROD includes EPA’s explanation for any significant differences between 

the final plan and the proposed plan as well as a responsiveness summary relating to public 

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

CERCLA, 42 U.S.C. § 9617(b).

K. During the performance of the RI/FS, one of the signatories of the FFO – General 

Motors Corporation (“GM”) – declared bankruptcy and ceased performance of response actions 

at the Site and other sites across the country. As a result, the United States, acting on behalf of 

EPA, filed a proof of claim in the GM bankruptcy and ultimately resolved its claim by a 

negotiated settlement under which EPA received, among other things, an Allowed General 

Unsecured Claim for the Site (“Allowed Valleycrest Claim”) in the amount of $7 million. In re 

Motors Liquidation Company, et al., Case No. 09-50026 (Bankr. S.D.N.Y.) at Dkt. No. 9604 

(Exh, A, ¶ 8) (March 4, 2011) (hereinafter “GM Settlement”). Consistent with the terms of the

GM Settlement, all distributions received by EPA on account of the Allowed Valleycrest Claim 

have been deposited in an interest-bearing special account within the Superfund to be retained 

and used to fund response actions at the Site. Id. at ¶ 48, Dkt. No. 9943 (March 29, 2011) (Order

approving GM Settlement).

L. This Consent Decree is structured to allow participation by Settling Parties falling 

into two classes: (1) Settling Work Parties and (2) Other Settling Parties. The Settling Work 

Parties are agreeing to perform the Work at the Site and reimburse certain government costs, as 

specified herein. The Other Settling Parties have made payments toward the costs associated 

with the Site under prior settlements with certain Settling Work Parties. Copies of the prior 
4

settlements have been provided to the Plaintiff, and such agreements show that the Other Settling 

Parties have received releases from the Settling Work Parties for past and future response costs, 

and most Other Settling Parties are also entitled to indemnity by one or more of the Settling 

Work Parties. The Settling Work Parties and Other Settling Parties are referred to herein 

collectively as the “Settling Parties.”

M. Most of the approximately 102 acres that compromise the Site are owned by The 

Keystone Gravel Company. In 2006, the Settling Work Parties entered into a settlement 

agreement with The Keystone Gravel Company and LMS Investments, Inc. under which the 

Settling Work Parties obtained certain property rights to the portions of the Site owned by The 

Keystone Gravel Company. In 2011, the Secretary of State for the State of Ohio cancelled the 

Articles of Incorporation for The Keystone Gravel Company due, among other things, to the 

company’s failure to pay certain taxes within the time period prescribed by law. Based upon a 

search conducted by the Settling Work Parties, there are no known surviving officers or directors 

who may act on behalf of The Keystone Gravel Company or LMS Investments, Inc., nor are 

there any known corporate successors of The Keystone Gravel Company or LMS Investments, 

Inc.

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

will be properly and promptly conducted by Settling Work Parties if conducted in accordance 

with the requirements of this Consent Decree and its appendices. Solely for the purposes of 

Section 113(j) of CERCLA, 42 U.S.C. § 9613(j), the remedy set forth in the ROD and the Work 

to be performed by Settling Work Parties shall constitute a response action taken or ordered by 

the President for which judicial review shall be limited to the administrative record.
5

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

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

Consent Decree will expedite the cleanup of the Site and will avoid prolonged and complicated 

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

interest. 

NOW, THEREFORE, it is hereby Ordered, Adjudged, 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 Settling Parties. Solely for the purposes of this Consent Decree and 

the underlying complaint, Settling Parties waive all objections and defenses that they may have 

to jurisdiction of the Court or to venue in this District. Settling Parties 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 is binding upon the United States and upon all Settling 

Parties and their successors and assigns. Any change in ownership or corporate status of a

Settling Party including, but not limited to, any Transfer of assets or real or personal property, 

shall in no way alter such Settling Party’s responsibilities under this Consent Decree.

3. Settling Work Parties shall provide a copy of this Consent Decree to each 

contractor hired to perform the Work required by this Consent Decree and to each person 

representing any Settling Work Party with respect to the Site or the Work, and shall condition all 

contracts entered into hereunder upon performance of the Work in conformity with the terms of 
6

this Consent Decree. Settling Work Parties or their contractors shall provide written notice of 

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

this Consent Decree. Settling Work Parties shall nonetheless be responsible for ensuring that 

their contractors and subcontractors perform the Work in accordance with the terms of this 

Consent Decree. With regard to the activities undertaken pursuant to this Consent Decree, each 

contractor and subcontractor shall be deemed to be in a contractual relationship with Settling 

Work Parties within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).

IV. DEFINITIONS

4. Unless otherwise expressly provided in this Consent Decree, terms used in this 

Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA 

shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms 

listed below are used in this Consent Decree or its appendices, the following definitions shall 

apply solely for purposes of this Consent Decree:

a. “Affected Property” shall mean all real property at the Site (including, but 

not limited to, the Keystone Affected Property) and any other real property where EPA 

determines, at any time, that implementation of the Remedial Action requires (i) access to the 

real property, (ii) land, water, or other resource use restrictions, and/or (iii) Institutional Controls.

b. “CERCLA” shall mean the Comprehensive Environmental Response, 

Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.

c. “Consent Decree” or CD shall mean this Consent Decree and all 

appendices attached hereto (listed in Section XXIII). In the event of conflict between this 

Consent Decree and any appendix, this Consent Decree shall control.
7

d. “Day” or “day” shall mean a calendar day. In computing any period of 

time under this CD, where the last day would fall on a Saturday, Sunday, or federal or State 

holiday, the period shall run until the close of business of the next working day.

e. “DOJ” shall mean the United States Department of Justice and its 

successor departments, agencies, or instrumentalities.

f. “Effective Date” shall mean the date upon which the approval of this 

Consent Decree is recorded on the Court’s docket.

g. “EPA” shall mean the United States Environmental Protection Agency 

and its successor departments, agencies, or instrumentalities.

h. “EPA Hazardous Substance Superfund” shall mean the Hazardous 

Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.

i. “Future Oversight Costs” shall mean that portion of Future Response 

Costs that EPA incurs in monitoring and supervising Settling Work Parties’ performance of the 

Work to determine whether such performance is consistent with the requirements of this Consent 

Decree, including costs incurred in reviewing deliverables submitted pursuant to this Consent 

Decree, as well as costs incurred in overseeing implementation of the Work; however, Future 

Oversight Costs do not include, inter alia, the costs incurred by the United States pursuant to 

Paragraph 11 (Emergencies and Releases), Section VII (Remedy Review), 

Section VIII (Property Requirements), Paragraph 31 (Access to Financial Assurance), and 

Paragraph 3.2 (Supplemental Investigation) of the SOW, or the costs incurred by the United 

States in enforcing this CD, including all costs incurred pursuant to Section XIV (Dispute 

Resolution), and all litigation costs, or the costs incurred by the United States (if any) in

modifying or amending the Record of Decision.
8

j. “Future Response Costs” shall mean all costs, including, but not limited 

to, Future Oversight Costs and all other direct and indirect costs, that the United States incurs in 

reviewing or developing deliverables submitted pursuant to this CD, in overseeing 

implementation of the Work, or otherwise implementing, overseeing, or enforcing this CD, 

including, but not limited to, payroll costs, contractor costs, travel costs, laboratory costs, the 

costs incurred pursuant to Paragraph 11 (Emergencies and Releases), Paragraph 12 (Community 

Involvement) (including the costs of any technical assistance grant under Section 117(e) of 

CERCLA, 42 U.S.C. § 9617(e)), Paragraph 31 (Access to Financial Assurance), Section VII

(Remedy Review), Section VIII (Property Requirements) (including the cost of attorney time and 

any monies paid to secure access and/or to secure, implement, monitor, maintain, or enforce 

Institutional Controls including the amount of just compensation), and Section XIV (Dispute 

Resolution), and all litigation costs. Future Response Costs shall also include (1) all Interim 

Response Costs, and (2) all Interest on those Past Response Costs Settling Work Parties have 

agreed to pay under this CD that has accrued pursuant to 42 U.S.C. § 9607(a) during the period 

from April 15, 2016 to the Effective Date.

k. “Institutional Controls” or “ICs” shall mean Proprietary Controls and state 

or local laws, regulations, ordinances, zoning restrictions, or other governmental controls or 

notices that: (a) limit land, water, or other resource use to minimize the potential for human 

exposure to Waste Material at or in connection with the Site; (b) limit land, water, or other 

resource use to implement, ensure non-interference with, or ensure the protectiveness of the RA; 

and/or (c) provide information intended to modify or guide human behavior at or in connection 

with the Site.
9

l. “Interim Response Costs” shall mean all costs, including, but not limited

to, direct and indirect costs (a) paid by the United States in connection with the Site between 

April 15, 2016, and the Effective Date, or (b) incurred prior to the Effective Date but paid after 

that date.

m. “Interest” shall mean interest at the rate specified for interest on 

investments of the EPA Hazardous Substance Superfund, 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. Rates are available online at http://www.epa.gov/superfund/superfund-interestrates.

n. “Interest Earned” shall mean interest earned on amounts in the Valleycrest 

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

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

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

o. “Keystone” refers to The Keystone Gravel Company, a corporation 

organized for profit in the State of Ohio on January 13, 1921, which is also sometimes referred to 

as Keystone Gravel Co. or The Keystone Gravel Co in real estate tax records and other 

documents having to do with the Site.

p. “Keystone Affected Property” shall refer to the collection of parcels 

owned by The Keystone Gravel Company at the Site, as described in Paragraph 20.a.

q. “Municipal Solid Waste” or “MSW” shall mean waste material: (a) 

generated by a household (including a single or multifamily residence) or (b) generated by a 

commercial, industrial, or institutional entity, to the extent that the waste material (1) is 
10

essentially the same as waste normally generated by a household; (2) is collected and disposed of 

with other municipal solid waste as part of normal municipal solid waste collection services; and 

(3) contains a relative quantity of hazardous substances no greater than the relative quantity of 

hazardous substances contained in waste material generated by a typical single-family 

household.

r. “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.

s. “OEPA” shall mean the Ohio Environmental Protection Agency and any 

of its predecessors or successors.

t. “Operation and Maintenance” or “O&M” shall mean all activities required 

to operate, maintain, and monitor the effectiveness of the RA as specified in the SOW or any 

EPA-approved O&M Plan.

u. “Other Settling Parties" shall mean the group comprised of particular

parties – each of whom is an “Other Settling Party” under this Consent Decree.

v. “Other Settling Party” shall mean a party who, as of the date of lodging of 

the Consent Decree, has entered into a settlement relating to the Site with one or more of the 

Settling Work Parties, provided that each such party: (l) is identified in Appendix E (or is the 

successor in interest to a party listed in Appendix E) and (2) at any given time before or after 

entry of this Consent Decree, executes the prescribed form of Consent Decree signature page for 

an Other Settling Party, and such signature page is filed with the Court in this action and served 

on the Plaintiffs and the Settling Work Parties in accordance with Section XXI (Notices and 

Submissions). The Department of the Air Force, on behalf of its components at Wright-
11

Patterson Air Force Base, entered into a settlement relating to the Site with one or more of the 

Settling Work Parties and shall be classified as an “Other Settling Party” without the need for 

execution, filing, or service of a separate Consent Decree signature page.

w. "Paragraph” shall mean a portion of this Consent Decree identified by an 

Arabic numeral or an upper or lower case letter.

x. “Parties” shall mean the United States and Settling Parties.

y. “Past Response Costs” shall mean $1,237,341, which constitutes all costs, 

including, but not limited to, direct and indirect costs, that the United States paid at or in 

connection with the Site through April 15, 2016, plus Interest on all such costs that has accrued 

pursuant to 42 U.S.C. § 9607(a) through such date. EPA has determined that its net 

unreimbursed Past Response Costs total $1,237,341.23.

z. “Performance Standards” shall mean the cleanup levels and other 

measures of achievement of the Remedial Action objectives, as set forth in the ROD in Sections 

8.1 (Remedial Action Objectives) and 8.2 (Groundwater).

aa. “Plaintiff” shall mean the United States.

bb. “Proprietary Controls” shall mean easements or covenants running with 

the land that (a) limit land, water, or other resource use and/or provide access rights and (b) are 

created pursuant to common law or statutory law by an instrument that is recorded in the 

appropriate land records office.

cc. “RCRA” shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-

6992 (also known as the Resource Conservation and Recovery Act).
12

dd. “Record of Decision” or “ROD” shall mean the EPA Record of Decision 

relating to the Site signed on August 16, 2013, by the Regional Administrator, EPA Region 5, or 

his/her delegate, and all attachments thereto. The ROD is attached as Appendix A.

ee. “Remedial Action” or “RA” shall mean the selected remedy in the ROD.

ff. “Remedial Design” or “RD” shall mean those activities to be undertaken 

by Settling Work Parties to develop final plans and specifications for the RA as stated in the 

SOW.

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

Roman numeral.

hh. “Settling Parties” shall mean Settling Work Parties (identified in 

Appendix D) and Other Settling Parties (identified in Appendix E) that have signed this Consent

Decree. Where distinctions need to be made between the two groups of Settling Parties, the term 

“Settling Work Parties” and “Other Settling Parties” shall be used. Where referring to an 

individual member of the group of “Settling Parties,” the singular term “Settling Party” shall be 

used.

ii. "Settling Work Parties” shall mean the parties identified in Appendix D.

Where referring to an individual member of the group of “Settling Work Parties,” the singular 

term “Settling Work Party” shall be used.

jj. “Site” shall mean the North Sanitary (aka “Valleycrest”) Landfill 

Superfund Site, encompassing approximately 102 acres, located on both the east and west sides 

of Valleycrest Drive north of the intersection of Valleycrest Drive and Valley Street in the City 

of Dayton, Montgomery County, Ohio, and depicted generally on the map attached as Appendix 

C;
13

kk. “State” shall mean the State of Ohio.

ll. “Statement of Work” or “SOW” shall mean the document describing the 

activities Settling Work Parties must perform to implement the RD, the RA, and O&M regarding 

the Site, which is attached as Appendix B.

mm. “Supervising Contractor” shall mean the principal contractor retained by 

Settling Work Parties to supervise and direct the implementation of the Work under this Consent 

Decree.

nn. “Transfer” shall mean to sell, assign, convey, lease, mortgage, or grant a 

security interest in, or where used as a noun, a sale, assignment, conveyance, or other disposition 

of any interest by operation of law or otherwise.

oo. “United States” shall mean the United States of America and each 

department, agency, and instrumentality of the United States, including EPA.

pp. “Valleycrest Landfill Disbursement Special Account” shall mean the 

special account, within the EPA Hazardous Substance Superfund, established for the Site by 

EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3), and Paragraph 38

(Valleycrest Landfill Disbursement Special Account) for the disbursement of certain funds 

obtained by EPA under the GM Settlement.

qq. “Valleycrest Landfill Special Account” shall mean the special account, 

within the EPA Hazardous Substance Superfund, established for the Site by EPA pursuant to 

Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

rr. “Waste Material” shall mean (1) any “hazardous substance” under 

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

Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (3) any “solid waste” under 
14

Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); and (4) any “hazardous waste” under Chapter 

3734.01(j) of the Ohio Revised Code.

ss. “Work” shall mean all activities and obligations Settling Work Parties are 

required to perform under this Consent Decree, except the activities required under Section XX

(Retention of Records).

V. GENERAL PROVISIONS

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

Consent Decree are to protect public health or welfare or the environment by the design and 

implementation of response actions at the Site by Settling Work Parties, to pay for certain 

response costs of Plaintiff, and to resolve the claims of Plaintiff against Settling Parties as 

provided in this Consent Decree. 

6. Commitments by Settling Work Parties

a. Settling Work Parties shall finance and perform the Work in accordance 

with this Consent Decree and all deliverables developed by Settling Work Parties and approved 

or modified by EPA pursuant to this Consent Decree. Settling Work Parties shall pay the United 

States for its response costs as provided in this CD. 

b. Settling Work Parties obligations to finance and perform the Work, 

including obligations to pay amounts due under this CD, are joint and several. In the event of the 

insolvency of any Settling Work Party or the failure by any Settling Work Party to implement 

any requirement of this CD, the remaining Settling Work Parties shall complete all such 

requirements.

c. The settlement agreements between the Settling Work Parties and Other 

Settling Parties are not abrogated by this CD and remain enforceable in accordance with their 
15

terms. Settling Work Parties’ obligations under this Consent Decree shall be independent of and 

unaffected by any nonperformance by Other Settling Parties of obligations under such settlement 

agreements and shall remain in full force and effect regardless of any actions taken, or not taken,

by one or more of the Other Settling Parties.

7. Compliance with Applicable Law. Nothing in this Consent Decree limits Settling 

Work Parties’ obligations to comply with the requirements of all applicable federal and state 

laws and regulations. Settling Work Parties 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. The activities conducted pursuant to this CD, if approved by EPA, shall be deemed to 

be consistent with the NCP as provided in Section 300.700(c)(3)(ii) of the NCP.

8. Permits.

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

Section 300.400(e) of the NCP, no permit shall be required for any portion of the 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 Work). Where any 

portion of the Work that is not on-site requires a federal or state permit or approval, Settling 

Work Parties shall submit timely and complete applications and take all other actions necessary 

to obtain all such permits or approvals.

b. Settling Work Parties may seek relief under the provisions of Section XIII

(Force Majeure) for any delay in the performance of the Work resulting from a failure to obtain, 

or a delay in obtaining, any permit or approval referenced in Paragraph 8.a and required for the 

Work, provided that they have submitted timely and complete applications and taken all other 

actions necessary to obtain all such permits or approvals.
16

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. PERFORMANCE OF THE WORK

9. Coordination and Supervision.

a. Project Coordinators.

(1) Settling Work Parties’ Project Coordinator must have sufficient 

technical expertise to coordinate the Work. Settling Work Parties’ Project Coordinator may not 

be an attorney representing any Settling Party in this matter and may not act as the Supervising 

Contractor. Settling Work Parties’ Project Coordinator may assign other representatives, 

including other contractors, to assist in coordinating the Work.

(2) EPA shall designate and notify the Settling Work Parties of its 

Project Coordinator and Alternate Project Coordinator. EPA may designate other 

representatives, which may include its employees, contractors and/or consultants, to oversee the 

Work. EPA’s Project Coordinator/Alternate Project Coordinator will have the same authority as 

a remedial project manager and/or an on-scene coordinator, as described in the NCP. This 

includes the authority to halt the Work and/or to conduct or direct any necessary response action 

when he or she determines that conditions at the Site constitute an emergency or may present an 

immediate threat to public health or welfare or the environment due to release or threatened 

release of Waste Material.

(3) Settling Work Parties’ Project Coordinator shall meet with EPA’s 

Project Coordinator at least monthly, unless EPA determines in any particular month that the 

meeting is unnecessary or that another form of communication (e.g. conference call) is sufficient.
17

b. Supervising Contractor. Settling Work Parties’ proposed Supervising 

Contractor must have sufficient technical expertise to supervise the Work and a quality assurance 

system that complies with ANSI/ASQC E4-2004, Quality Systems for Environmental Data and 

Technology Programs: Requirements with Guidance for Use (American National Standard,

2004). 

c. Procedures for Disapproval/Notice to Proceed.

(1) Settling Work Parties shall notify EPA, within 21 days after the 

Effective Date, of the name(s), contact information and qualifications of the Settling Work 

Parties’ proposed Project Coordinator and Supervising Contractor.

(2) EPA, after a reasonable opportunity for review and comment by the 

State, shall issue notices of disapproval and/or authorizations to proceed regarding the proposed 

Project Coordinator and Supervising Contractor, as applicable. If EPA issues a notice of 

disapproval, Settling Work Parties shall, within 30 days, submit to EPA a list of supplemental 

proposed Project Coordinators and/or Supervising Contractors, as applicable, including a 

description of the qualifications of each. EPA shall issue a notice of disapproval or authorization 

to proceed regarding each supplemental proposed coordinator and/or contractor. Settling Work 

Parties may select any coordinator/contractor covered by an authorization to proceed and shall, 

within 21 days, notify EPA of Settling Work Parties’ selection.

(3) Settling Work Parties may change their Project Coordinator and/or 

Supervising Contractor, as applicable, by following the procedures of Paragraphs 9.c(1) and 

9.c(2).
18

10. Performance of Work.

a. Settling Work Parties shall: (a) develop the Remedial Design; (b) perform 

the Remedial Action; and (c) operate, maintain, and monitor the effectiveness of the Remedial 

Action, and they shall do so all in accordance with the SOW and all EPA-approved, 

conditionally-approved, or modified deliverables as required by the SOW. All deliverables 

required to be submitted for approval under the Consent Decree or SOW shall be subject to 

approval by EPA in accordance with the procedures set forth in Paragraph 6.6 (Approval of 

Deliverables) of the SOW.

b. Subject to the requirements and limitations set forth in Paragraph 3.2 of 

the SOW, the Settling Work Parties may implement voluntary supplemental work relating to 

Site conditions and/or issues relating to the remedial design not specifically covered by the 

SOW and, based upon such supplemental work, make submittals and recommendations to EPA. 

EPA shall review any such submittals and recommendations in accordance with Paragraph 3.2 

of the SOW.

c. As of the Effective Date, the Administrative Order on Consent (“AOC”), 

which has been in effect since September 10, 1998 in the Matter of North Sanitary Landfill

(Docket No. V-W-98-C-496), is hereby terminated, provided that the duties of the settling 

Respondents under the AOC to operate and maintain the Landfill Gas Abatement System in 

accordance with EPA-approved plans are hereby subsumed as an obligation of this Consent 

Decree by the Settling Work Parties. Such duties shall continue until such time that the Settling 

Work Parties replace the existing Landfill Gas and Abatement system with the one that they are 

required to design and construct in accordance with the ROD, this Consent Decree, and the 
19

SOW. All billings and collections under Section VII (“Reimbursement of Costs”) of the AOC 

are fully resolved and hereby terminated. 

11. Emergencies and Releases. Settling Work Parties shall comply with the 

emergency response and reporting requirements under Paragraph 4.5 (Emergency Response 

Reporting) of the SOW. Subject to Section XVI (Covenants by Plaintiff), nothing in this CD, 

including the emergency response and reporting requirement under Paragraph 4.5 of the SOW, 

limits any authority of Plaintiff: (a) to take all appropriate action to protect human health and the 

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

Waste Material on, at, or from the Site, or (b) to direct or order such action, or seek an order 

from the Court, to protect human health and the environment or to prevent, abate, respond to, or 

minimize an actual or threatened release of Waste Material on, at, or from the Site. If, due to 

Settling Work Parties’ failure to take appropriate response actions and reporting requirements 

under Paragraph 4.5 of the SOW, EPA takes such action instead, then Settling Work Parties shall

reimburse EPA under Section X (Payments for Response Costs) for all costs of the response 

action.

12. Community Involvement. If requested by EPA, Settling Work Parties shall 

conduct community involvement activities under EPA’s oversight as provided for in, and in 

accordance with, Section 2 (Community Involvement) of the SOW. Such activities may include, 

but are not limited to, designation of a Community Involvement Coordinator. Costs incurred by 

the United States under this Section constitute Future Response Costs to be reimbursed under

Paragraph 35 (Payments for Response Costs).
20

13. Modification of SOW or Related Deliverables.

a. If EPA determines that it is necessary to modify the Work specified in the 

SOW and/or in deliverables developed under the SOW in order to achieve and maintain the 

Performance Standards or to carry out and maintain the effectiveness of the remedy set forth in 

the ROD, and such modification is consistent with the Scope of the Remedy set forth in 

Paragraph 1.3 of the SOW, then EPA may notify Settling Work Parties of such modification. If 

Settling Work Parties object to the modification they may, within 30 days after EPA’s 

notification, seek dispute resolution under Section XIV.

b. The SOW and/or related work plans shall be modified: (1) in accordance 

with the modification issued by EPA, or (2) if Settling Work Parties invoke dispute resolution, 

in accordance with the final resolution of the dispute. The modification shall be incorporated 

into and enforceable under this Consent Decree, and Settling Work Parties shall implement all 

work required by such modification. Settling Work Parties shall incorporate the modification 

into the deliverables required under the SOW, as appropriate.

c. Nothing in this Paragraph shall be construed to limit EPA’s authority to 

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

14. Nothing in this Consent Decree, the SOW, or any deliverable required under the 

SOW constitutes a warranty or representation of any kind by Plaintiff that compliance with the 

work requirements set forth in the SOW or related deliverables will achieve the Performance 

Standards.

VII. REMEDY REVIEW

15. Periodic Review. Settling Work Parties shall conduct, in accordance with the 

SOW, studies and investigations to support EPA’s reviews under Section 121(c) of CERCLA, 42 
21

U.S.C. § 9621(c), and applicable regulations, of whether the RA is protective of human health 

and the environment.

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

the RA is not protective of human health and the environment, EPA may select further response 

actions for the Site in accordance with the requirements of CERCLA and the NCP.

17. Opportunity To Comment. Settling Work Parties and, if required by 

Sections 113(k)(2) or 117 of CERCLA, 42 U.S.C. § 9613(k)(2) or 9617, the public, will be 

provided with an opportunity to comment on any further response actions proposed by EPA as a 

result of the review conducted pursuant to Section 121(c) of CERCLA and to submit written 

comments for the record during the comment period.

18. Settling Work Parties’ Obligation To Perform Further Response Actions. If EPA 

selects further response actions relating to the Site, EPA may require Settling Work Parties to 

perform such further response actions, but only to the extent that the reopener conditions in 

Paragraphs 72 or 73 (United States’ Pre- and Post-Certification Reservations) are satisfied. 

Settling Work Parties may invoke the procedures set forth in Section XIV (Dispute Resolution) 

to dispute (a) EPA’s determination that the reopener conditions of Paragraph 72 or Paragraph 73

are satisfied, (b) EPA’s determination that the RA is not protective of human health and the 

environment, or (c) EPA’s selection of the further response actions. Disputes regarding EPA’s 

determination that the RA is not protective or EPA’s selection of further response actions shall 

be resolved pursuant to Paragraph 56 (Record Review). 

19. Submission of Plans. If Settling Work Parties are required to perform further 

response actions pursuant to Paragraph 18, they shall submit a plan for such response action to 

EPA for approval in accordance with the procedures of Section VI (Performance of the Work by 
22

Settling Work Parties). Settling Work Parties shall implement the approved plan in accordance 

with this Consent Decree. 

VIII. PROPERTY REQUIREMENTS

20. Actions Pertaining to the Keystone Affected Properties:

a. The Keystone Gravel Company (“Keystone”), which owns most of the 

102 acres that comprise the Site, and LMS Investments, Inc., entered in a settlement agreement 

with Settling Work Parties in April of 2006, (“Keystone Settlement”) which gave to the Settling 

Work Parties, among other things, certain rights relating to the following 14 parcels, collectively

known as the “Keystone Affected Property”:

R72-16704-0012 R72-16704-0064

R72-16704-0011 R72-16704-0004

R72-16704-0051 R72-16703-0016

R72-16704-0049 R72-16703-0021

R72-16704-0055 R72-16703-0017

R72-16704-0014 R72-16703-0018

R72-16704-0005 R72-16714-0023

With respect to the Keystone Affected Property, the Settling Work Parties shall take the 

following actions:

(1) Amendment of Environmental Covenant: The Settling Work Parties 

shall obtain an amendment of the environment covenant (“EC”) granted to them by Keystone on 

July 18, 2007 under the Ohio Uniform Environmental Covenants Act, O.R.C. §§ 5301.80 to 

5301.92. This amended EC (“Amended EC”) shall substantially comport with the form attached 

hereto as Appendix F and shall (i) limit the use of the Keystone Affected Property to include all 

of the restrictions set forth in Paragraph 25 (Land, Water, or Other Use Restrictions) below that 

are included within the Institutional Controls Implementation and Assurance Plan (“ICIAP”)
23

approved by EPA in accordance with Section 6 (Deliverables) of the SOW, (ii) provide EPA and 

its representatives, contractors, and subcontractors, with access at all reasonable times to the 

Keystone Affected Property for the purpose of conducting any activity regarding the Consent 

Decree, including those activities listed Paragraph 24 (Access Requirements) that are included 

within the EPA-approved ICIAP, and (iii) grant to EPA the right to seek judicial enforcement of 

the Amended EC against Keystone and all future owners or transferees of the Keystone Affected 

Property. The Settling Work Parties shall record the Amended EC with the County Recorder for 

Montgomery County, Ohio. To obtain the amendment, the Settling Work Parties shall petition 

the Ohio Environmental Protection Agency (“OEPA”) for an amendment of the EC under the 

authority granted to OEPA by O.R.C. § 5301.90(A)(2) and shall move for the Court (or another 

court of competent jurisdiction) to find under O.R.C. § 5301.90(A)(3) that Keystone no longer 

exists or cannot be located or identified with the exercise of reasonable diligence. In the event 

that OEPA denies the petition, or in the event that this Court (or another court of competent 

jurisdiction) declines to enter a finding that would allow the EC to be amended in accordance 

with O.R.C. § 5301.90(A), the Settling Work Parties shall, within 60 days of the first occurrence 

of either event, move the Court to appoint a receiver who can act on behalf of Keystone for the 

purpose of executing the Amended EC, or alternatively, within the same time period, the Settling

Work Parties shall file papers for the same purpose in any other court with jurisdiction to appoint 

a receiver on behalf Keystone, provided that the Settling Work Parties provide the United States 

with written notice at least 30 days prior to filing such papers with this Court or other court with 

jurisdiction to appoint a receiver. The Settling Work Parties shall be responsible for paying all 

fees and costs billed by the receiver in connection with the amendment of the EC.
24

(2) Subordination of Third Party Interests: The Settling Work Parties 

shall complete a title commitment for the Keystone Affected Property to determine whether a 

third-party has an interest in such properties that would limit or impair EPA’s rights under the 

Amended EC. In the event that a third-party has an on-going interest in the Keystone Affected 

Property that limits or impairs EPA’s rights under the Amended EC, the Settling Work Parties

shall use best efforts to secure the third-party’s cooperation in subordinating that interest to 

EPA’s interest.

(3) Survey of Keystone Affected Property: The Settling Work Parties 

shall coordinate with EPA to update a survey of the Keystone Affected Property in the event that 

EPA determines such an update is necessary.

(4) Safeguarding the Keystone Affected Property: The Settling Work 

Parties shall repair and maintain fencing and take all other actions necessary to prevent vandals 

or unauthorized personnel from entering the Keystone Affected Property. The Settling Work 

Parties shall continue to safeguard the property for a period of 30 years or until EPA’s 

Certification of Work Completion under Paragraph 4.9 of the SOW, whichever is later, unless 

the property is transferred in accordance with Paragraph 20.b, in which event the Settling Work 

Parties’ obligations under this Subparagraph 20.a(4) shall terminate upon date of the transfer.

b. Transfer of Keystone Affected Property to Third-Party: Under the 

Keystone Settlement, the Settling Work Parties obtained, among other things, the right to direct 

Keystone to transfer a fee simple interest in parcels that make up the Keystone Affected 

Property to one or more persons or entities. In the event that the Settling Work Parties wish to 

exercise this right, they shall do so in accordance with the following procedures:
25

(1) At any time after lodging of the Consent Decree, Settling Work 

Parties may propose to EPA a person or entity who is interested in becoming an owner of one or 

more of the parcels making up the Keystone Affected Property (“New Site Owner”). In making 

such a proposal, the Settling Work Parties shall identify (i) the New Site Owner’s intended use of 

the parcel (or parcels), (ii) the proposed purchase price (if any) to be paid by the New Site 

Owner, (iii) the estimated fair market value (“FMV”) of the parcel (or parcels) as of the Date that 

the construction of the Remedial Action was (or will be) completed, and (iv) any and all 

affiliations or connections between the New Site Owner and one or more of the Settling Work 

Parties. In addition, in the event that the Settling Work Parties are aware of any facts or 

circumstances that would support an allegation that the New Site Owner is potentially liable for 

contamination at the Site under Section 107 of CERCLA, 42 U.S.C. § 9607, the Settling Work 

Parties shall disclose such facts and circumstances to EPA at same the time that they submit their 

proposal to EPA under this Subparagraph 20.b(1). The Settling Work Parties shall estimate the 

FMV of the parcel (or parcels) by analyzing the sale price of comparable properties in

Montgomery County, Ohio. In the event that the Settling Work Parties are unable to identify any 

such comparable sales, they shall publish a notice of the proposed sale in a daily newspaper of 

general circulation in Montgomery County, Ohio, and solicit competing offers for a period of at 

least 30 days. Any and all competing offers received by the Settling Work Parties shall be 

disclosed by the Settling Work Parties at the same time that they submit their proposal to EPA 

under this Subparagraph 20.b(1).

(2) EPA, after an opportunity for review and comment by the State of 

Ohio of no more than 45 Days, shall issue a notice of approval or disapproval regarding the New 

Site Owner.
26

(3) No later than 120 Days after receipt of approval by EPA of the 

proposed New Site Owner, the Settling Work Parties shall either (i) move the Court to appoint a 

receiver who can act on behalf of Keystone for the purpose of executing instruments necessary to 

complete the transfer to the New Site Owner or (ii) file papers for the same purpose in any other 

court with jurisdiction to appoint a receiver on behalf of Keystone, provided that the Settling 

Work Parties provide the United States with written notice at least 30 days prior to filing such 

papers. The Settling Work Parties shall be responsible for paying all fees and costs billed by the 

receiver in connection with the transfer to the New Site Owner. In the event that EPA 

disapproves of the New Site Owner, the Settling Work Parties may challenge such disapproval 

under Section XIV (Dispute Resolution).

c. In the event that the transfer from Keystone to the New Site Owner

generates any sale proceeds, such proceeds shall be used to reimburse the Settling Work Parties 

for all payments made to the Keystone Receiver as of the date of the transfer. Any remaining 

proceeds (“Net Proceeds”) shall be shared by EPA and the Settling Work Parties, with 15% of

the Net Proceeds going to EPA and 85% of the Net Proceeds going to the Settling Work Parties. 

Payment of EPA’s share of the Net Proceeds shall be paid in accordance with payment 

instructions set forth in Paragraph 36 (“Payment Instructions for Settling Work Parties”). Such 

proceeds shall be deposited by EPA in the Valleycrest Landfill Special Account to be retained 

and used to conduct or finance response actions at or in connection with the Site, or to be 

transferred by EPA to the EPA Hazardous Substance Superfund, provided, however, that EPA 

may deposit the proceeds directly into the EPA Hazardous Substance Superfund if, at the time 

the payment is received, EPA estimates that the Valleycrest Landfill Special Account balance is 

sufficient to address currently anticipated future response actions to be conducted or financed by 
27

EPA at or in connection with the Site. Any decision by EPA to deposit a Net Proceeds payment 

directly into the EPA Hazardous Substance Superfund for this reason shall not be subject to 

challenge by Settling Work Parties pursuant to the dispute resolution provisions of this CD or in 

any other forum.

21. Affected Properties Owned by Settling Parties: Each Settling Party that owns an 

Affected Property (“Owner SD”) shall take the actions set forth in Subparagraphs 21.a to 21.f

below. In the event that an Owner SD is also an Other Settling Party, the Settling Work Parties 

shall use best efforts to cause the Owner SD to comply with the requirements of this Paragraph 

21.

a. The Owner SD shall (i) provide the United States and the Settling Work 

Parties – together with their representatives, contractors, and subcontractors – with access at all 

reasonable times to such Affected Property to conduct any activity regarding the Consent 

Decree, including those activities listed in Paragraph 24 (Access Requirements) that are 

included within the EPA-approved ICIAP and (ii) refrain from using such Affected Property in 

any manner that EPA determines will pose an unacceptable risk to human health or the 

environment due to Waste Material, or interfere with or adversely affect the implementation, 

integrity, or protectiveness of the Remedial Action, including the restrictions listed in Paragraph 

25 (Land, Water, or Other Resource Use Restrictions) that are included within the EPAapproved ICIAP).

b. The Owner SD shall execute and record an environmental covenant that 

comports with the requirements and procedures of the Ohio Uniform Environmental Covenants 

Act, O.R.C. § 5301.80 to 5301.92, and with the requirements of the EPA-approved ICIAP. The 

environmental covenant shall (i) grant a right of access to conduct any activity regarding the 
28

Consent Decree, including those activities listed in Paragraph 24 (Access Requirements) that are 

included with the EPA-approved ICIAP, and (ii) grant the right to enforce land, water, or other 

use restrictions set forth in Paragraph 25 (Land, Water, or Other Use Restrictions) that are 

included within the EPA-approved ICIAP. The grantees of such rights shall include, among 

others, EPA and its representatives and contractors.

c. Within 30 days of the Effective Date or within 30 days of the date on 

which its signature page is filed with the Court in this action, whichever is later, the Owner SD 

shall, with the help of the Settling Work Parties, prepare and submit for EPA approval a notice 

to be filed regarding its Affected Property in the appropriate land records. The notice must (i)

include a proper legal description of the Affected Property, (ii) provide notice to all successorsin-title that (a) the Affected Property is part of, or related to, the Site, (b) EPA has selected a

remedy for the Site, and (c) potentially responsible parties have entered into a Consent Decree 

requiring implementation of such remedy, and (iii) identify the United States District Court for 

Southern District of Ohio, the name and civil action number of this case, and the date that the 

Consent Decree was entered by the Court. The Owner SD, or the Settling Work Parties acting

on behalf of the Owner SD, shall record the notice within 10 days after EPA’s approval of the 

notice and submit to EPA, within 10 days thereafter, a certified copy of the recorded notice.

d. The Owner SD shall not transfer its Affected Property unless and until it

has met two requirements. First, the Owner SD must secure EPA’s approval of, and transferee’s 

consent to, an agreement that (a) is enforceable by Settling Work Parties and the United States 

and (b) requires the transferee to provide access to and to refrain from using the Affected 

Property to the same extent as provided under the EPA-approved ICIAP. Second, the Owner 

SD must have executed and recorded the environmental covenant in accordance with 
29

Subparagraphs 21.b and c above. To demonstrate compliance with the first requirement, 

Settling Work Parties may provide EPA with an agreement, substantially identical in form to the 

agreement set forth at Appendix G, that has been signed and notarized by the transferee.

e. Prior to entering into a contract to transfer its Affected Property, or 60 

days prior to transferring the Affected Property, whichever is earlier, the Owner SD shall (i)

notify the proposed transferee that EPA has selected a remedy regarding the Site, that 

potentially responsible parties have entered into a Consent Decree requiring implementation of 

such remedy, and that the United States District Court for the Southern District of Ohio has 

entered the Consent Decree (identifying the name and civil action of this case and the date that 

the Consent Decree was entered by the Court), and (ii) notify EPA of the name and address of 

the proposed transferee and provide EPA with a copy of the notice that it provided to the 

proposed transferee.

f. In the event of any Transfer of the Affected Property, unless the United 

States otherwise consents in writing, the Owner SD shall continue to comply with its obligations 

under this Paragraph 21.

22. Affected Properties Owned by Non-Settling Parties: With respect to any

Affected Property owned by any party that has not entered into this Consent Decree (“NonSettling Party”), other than Keystone, the Settling Work Parties shall take the following actions:

a. The Settling Work Parties shall use best efforts to secure from such NonSettling Party an agreement, enforceable by the Settling Work Parties and the United States, 

under which the Non-Settling Party shall (i) provide the United States and the Settling Work 

Parties – together with their representatives, contractors, and subcontractors – with access at all 

reasonable times to such Affected Property to conduct any activity regarding the Consent 
30

Decree, including those activities listed in Paragraph 24 (Access Requirements) that are 

included within the EPA-approved ICIAP, and (ii) refrain from using such Affected Property in 

any manner that EPA determines will pose and unacceptable risk to human health or the 

environment due to Waste Material, or interfere with or adversely affect the implementation, 

integrity, or protectiveness of the Remedial Action, including the restrictions listed in Paragraph 

25 (Land, Water, or Other Resource Use Restrictions) that are included with the EPA-approved 

ICIAP.

b. The Settling Work Parties shall use best efforts to secure the Non-Settling 

Party’s cooperation in executing and recording an environmental covenant that comports with 

the requirements and procedures of the Ohio Uniform Environmental Covenants Act, O.R.C. 

§§ 5301.80 to 5301.92, and with EPA-approved ICIAP. The environmental covenant shall 

(i) grant a right of access to conduct any activity regarding the Consent Decree, including those 

activities listed in Paragraph 24 (Access Requirements) that are included within the ICIAP, and 

(ii) grant the right to enforce land, water, or other use restrictions set forth in Paragraph 25

(Land, Water, or Other Use Restrictions) that are included within the EPA-approved ICIAP.

The grantees of such rights shall include, among others, EPA and its representatives and 

contractors.

23. Best Efforts. As used in this Section VIII (Property Requirements), the term “best 

efforts” means the efforts that a reasonable person in the position of the Setting Work Parties

would use so as to achieve the goal in a timely manner, including the cost of employing 

professional assistance and the payment of reasonable sums of money to secure or amend 

Proprietary Controls, agreements, releases, subordinations, modifications, or relocations of prior 

encumbrances (e.g., prior liens, claims, rights such as easements, and mortgages) that affect title 
31

to any Affected Property, as applicable. If the Settling Work Parties are unable to accomplish 

what is required through best efforts in a timely manner, they shall notify the United States and 

EPA, and include a description of the steps taken to comply with the requirements. If the United 

States deems it appropriate, it may assist the Settling Work Parties, or take independent action, in 

obtaining such Proprietary Controls, agreements, releases, subordinations, modifications, or 

relocations of prior encumbrances (e.g., prior liens, claims, rights such as easements, and 

mortgages) that affect title to the Affected Property, as applicable. All costs incurred by the 

United States in providing such assistance or taking such action, including the cost of attorney 

time and the amount of monetary consideration or just compensation paid, constitute Future 

Response Costs to be reimbursed under Section X (Payments for Response Costs).

24. Access Requirements. In submitting the ICIAP to EPA for review and approval 

in accordance with Section 6 (Deliverables) of the SOW, the Settling Work Parties shall propose 

and identify, by parcel number, each Affected Property where implementation of the Remedial 

Action will require access. The following is a list of activities for which access is required for 

the Affected Properties, provided, however, that those activities listed in Subparagraph 24.h shall 

not apply to Affected Properties owned by Other Settling Parties or by Non-Settling Parties:

a. Monitoring the Work;

b. Verifying any data or information submitted to the United States;

c. Conducting investigations regarding contamination at or near the Site;

d. Obtaining samples;

e. Assessing the need for, planning, or implementing additional response 

actions at or near the Site;
32

f. Assessing implementation of quality assurance and quality control 

practices as defined in the approved construction quality assurance quality control plan as 

provided in the SOW;

g. Implementing the Work pursuant to the conditions set forth in Paragraph 

76 (Work Takeover);

h. Inspecting and copying records, operating logs, contracts, or other 

documents maintained or generated by Settling Work Parties or their agents, consistent with 

Section XIX (Access to Information); 

i. Assessing Settling Parties’ compliance with the CD;

j. Determining whether the Affected Property is being used in a manner that 

is prohibited or restricted, or that may need to be prohibited or restricted under the CD; and

k. Implementing, monitoring, maintaining, reporting on, and enforcing any 

Institutional Controls.

25. Land, Water, or Other Use Restrictions. In submitting the ICIAP to EPA for 

review and approval in accordance with Section 6 (Deliverables) of the SOW, the Settling Work 

Parties shall propose and identify, by parcel number, each Affected Property where 

implementation of the Remedial Action will require land, water, or other resource use 

restrictions, and/or Institutional Controls. For each Affected Property, the ICIAP shall include 

one or more of the following use restrictions as appropriate depending on the location of the 

property, its proximity to contamination, or its use in implementing or monitoring the Remedial 

Action:

a. Restrictions upon activities that could interfere with the Remedial Action;

b. Restrictions on the use of contaminated groundwater;
33

c. Restrictions on activities that could result in exposure to contaminants in 

surface and subsurface soils and groundwater; and

d. Restrictions on the construction of new structures on the Site where such

construction activities could interfere with the Remedial Action or result in the mobilization of 

contamination. 

26. Notwithstanding any provision of the Consent Decree, the United States retains 

all of its access authorities and rights, as well as all of its rights to require Institutional Controls, 

including enforcement authorities related thereto, under CERCLA, RCRA, and any other 

applicable statute or regulations. 

IX. FINANCIAL ASSURANCE

27. In order to ensure completion of the Work, Settling Work Parties shall secure 

financial assurance for the benefit of EPA, initially in the amount of $33.5 million (“Estimated 

Cost of Work Funded by Settling Work Parties”). The financial assurance must be one or more 

of the mechanisms listed below, in a form substantially identical to the relevant sample 

documents available under the “Financial Assurance – Settlements” category on the Cleanup 

Enforcement Model Language and Sample Documents website at 

http://cfpub.epa.gov/compliance/models/, and satisfactory to EPA. Settling Work Parties may 

use multiple mechanisms if they are limited to surety bonds guaranteeing payment, letters of 

credit, trust funds, and/or insurance policies.

a. A surety bond guaranteeing payment and/or performance of the Work that 

is issued by a surety company among those listed as acceptable sureties on federal bonds as set 

forth in Circular 570 of the U.S. Department of the Treasury;
34

b. An irrevocable letter of credit, payable to or at the direction of EPA, that is 

issued by an entity that has the authority to issue letters of credit and whose letter-of-credit 

operations are regulated and examined by a federal or state agency;

c. A trust fund established for the benefit of EPA that is administered by a 

trustee that has the authority to act as a trustee and whose trust operations are regulated and 

examined by a federal or state agency;

d. A policy of insurance that provides EPA with acceptable rights as a 

beneficiary thereof and that is issued by an insurance carrier that has the authority to issue 

insurance policies in the applicable jurisdiction(s) and whose insurance operations are regulated 

and examined by a federal or state agency;

e. A demonstration by one or more Settling Work Parties that each such 

Settling Work Party meets the relevant financial test criteria of 40 C.F.R. § 264.143(f) and 

reporting requirements of this Section for the sum of the Estimated Cost of the Work and the 

amounts, if any, of other federal, state, or tribal environmental obligations financially assured 

through the use of a financial test or guarantee, accompanied by a standby funding commitment, 

which obligates Settling Work Party to pay funds to or at the direction of EPA, up to the amount 

financially assured through the use of this demonstration in the event of a Work Takeover; or

f. A guarantee to fund or perform the Work executed in favor of EPA by one 

of the following: (1) a direct or indirect parent company of a Settling Work Party, or (2) a 

company that has a “substantial business relationship” (as defined in 40 C.F.R. § 264.141(h)) 

with a Settling Work Party; provided, however, that any company providing such a guarantee 

must demonstrate to EPA’s satisfaction that it meets the relevant financial test criteria of 40 

C.F.R. § 264.143(f) and reporting requirements of this Section for the sum of the Estimated Cost 
35

of the Work and the amounts, if any, of other federal, state, or tribal environmental obligations 

financially assured through the use of a financial test or guarantee.

28. The Settling Work Parties have selected the following mechanisms as an initial 

financial assurance:

Settling Work Party Financial Assurance Mechanism

Bridgestone Americas Tire Operations, LLC Letter of Credit with Standby Trust for Assurance

Cargill, Inc. Surety Bond for Assurance

Flowserve Corporation Surety Bond for Assurance

Kelsey-Hayes Company Letter of Credit for Assurance

NCR Corporation Performance Bond for Financial Assurance

Northrop Grumman Systems Corporation Surety Bond for Assurance

Waste Management of Ohio, Inc. Surety Bond for Assurance

Within 30 days after the Effective Date, each of the Settling Work Parties shall obtain EPA’s 

approval of the form of financial assurance set forth in the table above. Within 30 days of EPA’s 

final approval, the Settling Work Parties shall secure all executed and/or otherwise finalized 

mechanisms or other documents consistent with the EPA-approved forms of financial assurance 

and shall submit such mechanisms and documents to the EPA Regional Financial Management 

Officer, to the United States, and to EPA as specified in Section XXI (Notices and Submissions).

29. If Settling Work Parties provide financial assurance by means of a demonstration 

or guarantee under Paragraphs 27.e or 27.f, the affected Settling Work Parties shall also comply 

and shall ensure that their guarantors comply with the other relevant criteria and requirements of 

40 C.F.R. § 264.143(f) and this Section, including, but not limited to: (a) the initial submission to 

EPA of required documents from the affected entity’s chief financial officer and independent 

certified public accountant no later than 30 days after the Effective Date; (b) the annual 

resubmission of such documents within 90 days after the close of each such entity’s fiscal year; 

and (c) the notification of EPA no later than 30 days, in accordance with Paragraph 30, after any 
36

such entity determines that it no longer satisfies the relevant financial test criteria and 

requirements set forth at 40 C.F.R. § 264.143(f)(1). Settling Work Parties agree that EPA may 

also, based on a belief that an affected entity may no longer meet the financial test requirements 

of Paragraphs 27.e or 27.f, require reports of financial condition at any time from such entity in 

addition to those specified in this Paragraph. For purposes of this Section, references in 40 

C.F.R. Part 264, Subpart H, to: (1) the terms “current closure cost estimate,” “current postclosure cost estimate,” and “current plugging and abandonment cost estimate” include the 

Estimated Cost of the Work; (2) the phrase “the sum of the current closure and post-closure cost 

estimates and the current plugging and abandonment cost estimates” includes the sum of all 

environmental obligations (including obligations under CERCLA, RCRA, and any other federal, 

state, or tribal environmental obligation) guaranteed by such company or for which such 

company is otherwise financially obligated in addition to the Estimated Cost of the Work under 

this CD; (3) the terms “owner” and “operator” include each Settling Work Party making a 

demonstration or obtaining a guarantee under Paragraphs 27.e or 27.f; and (4) the terms 

“facility” and “hazardous waste management facility” include the Site.

30. Settling Work Parties shall diligently monitor the adequacy of the financial 

assurance. If any Settling Work Party becomes aware of any information indicating that the 

financial assurance provided under this Section is inadequate or otherwise no longer satisfies the 

requirements of this Section, such Settling Work Party shall notify EPA of such information 

within 7 days. If EPA determines that the financial assurance provided under this Section is 

inadequate or otherwise no longer satisfies the requirements of this Section, EPA will notify the 

affected Settling Work Party of such determination. A Settling Work Party shall, within 30 days 

after notifying EPA or receiving notice from EPA under this Paragraph, secure and submit to
37

EPA for approval a proposal for a revised or alternative financial assurance mechanism that 

satisfies the requirements of this Section. EPA may extend this deadline for such time as is 

reasonably necessary for the affected Settling Work Party in the exercise of due diligence, to 

secure and submit to EPA a proposal for a revised or alternative financial assurance mechanism, 

not to exceed 60 days. Settling Work Parties shall follow the procedures of Paragraph 32

(Modification of Financial Assurance) in seeking approval of, and submitting documentation for, 

the revised or alternative financial assurance mechanism. Settling Work Parties’ inability to 

secure and submit to EPA financial assurance in accordance with this Section shall in no way 

excuse performance of any other requirements of this CD, including, without limitation, the 

obligation of Settling Work Parties to complete the Work in accordance with the terms of this 

CD.

31. Access to Financial Assurance

a. If EPA issues a notice of implementation of a Work Takeover under 

Paragraph 76.b, then, in accordance with any applicable financial assurance mechanism, EPA is 

entitled to (1) the performance of the Work and/or (2) require that any funds be paid in 

accordance with Paragraph 31.d.

b. If EPA is notified by the issuer of a financial assurance mechanism that it 

intends to cancel such mechanism, and the Settling Work Parties fail to provide an alternative 

financial assurance mechanism in accordance with this Section at least 30 days prior to the 

cancellation date, the funds guaranteed under such mechanism must be paid prior to cancellation 

in accordance with Paragraph 31.d.

c. If, upon issuance of a notice of implementation of a Work Takeover under 

Paragraph 76.b, either (1) EPA is unable for any reason to promptly secure the resources 
38

guaranteed under any applicable financial assurance mechanism, whether in cash or in kind, to

continue and complete the Work, or (2) the financial assurance is provided under Paragraph 27.e

or 27.f, then EPA may demand an amount, as determined by EPA, sufficient to cover the cost 

of the remaining Work to be performed. Settling Work Parties shall, within 14 days of such 

demand, pay the amount demanded as directed by EPA.

d. Any amounts required to be paid under this Paragraph 31 shall be, as 

directed by EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA or by 

another person, or (ii) deposited into an interest-bearing account, established at a duly chartered 

bank or trust company that is insured by the FDIC, in order to facilitate the completion of the 

Work by another person. If payment is made to EPA, EPA may deposit the payment into the 

EPA Hazardous Substance Superfund or into the Valleycrest Landfill Special Account within 

the EPA Hazardous Substance Superfund to be retained and used to conduct or finance response 

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

Substance Superfund.

e. All EPA Work Takeover costs not paid under this Paragraph 31 must be 

reimbursed as Future Response Costs under Section X (Payments for Response Costs).

32. Modification of Amount, Form, or Terms of Financial Assurance. Settling Work 

Parties may submit, on any anniversary of the Effective Date or at any other time agreed to by 

the Parties, a request to reduce the amount, or change the form or terms, of the financial 

assurance mechanism. Any such request must be submitted to EPA in accordance with 

Paragraph 28, and must include an estimate of the cost of the remaining Work, an explanation of 

the bases for the cost calculation, and a description of the proposed changes, if any, to the form 

or terms of the financial assurance. EPA will notify Settling Work Parties of its decision to 
39

accept or reject a requested reduction or change pursuant to this Paragraph. Settling Work 

Parties may reduce the amount of the financial assurance mechanism only in accordance with: 

(a) EPA’s approval; or (b) if there is a dispute, the agreement, final administrative decision, or 

final judicial decision resolving such dispute under Section XIV (Dispute Resolution). Any 

decision made by EPA on a request submitted under this Paragraph to change the form or terms 

of a financial assurance mechanism shall be made in EPA’s sole and unreviewable discretion, 

and such decision shall not be subject to challenge by Settling Work Parties pursuant to the 

dispute resolution provisions of this CD or in any other forum. Within 30 days after receipt of 

EPA’s approval of, or the agreement or decision resolving a dispute relating to, the requested 

modifications pursuant to this Paragraph, Settling Work Parties shall submit to EPA 

documentation of the reduced, revised, or alternative financial assurance mechanism in 

accordance with Paragraph 28.

33. Release, Cancellation, or Discontinuation of Financial Assurance. Settling Work 

Parties may release, cancel, or discontinue any financial assurance provided under this Section 

only: (a) if EPA issues a Certification of Work Completion under Paragraph 4.9 (Certification of 

Work Completion) of the SOW; (b) in accordance with EPA’s approval of such release, 

cancellation, or discontinuation; or (c) if there is a dispute regarding the release, cancellation or 

discontinuance of any financial assurance, in accordance with the agreement, final administrative 

decision, or final judicial decision resolving such dispute under Section XIV (Dispute 

Resolution).

X. PAYMENTS FOR RESPONSE COSTS

34. Past Response Costs. Settling Work Parties shall not be required to pay Past 

Response Costs.
40

35. Payment by Settling Work Parties for Future Response Costs. Settling Work 

Parties shall pay to EPA all Future Response Costs not inconsistent with the NCP, but Settling 

Work Parties shall not pay Interim Response Costs or Future Oversight Costs, except to the 

extent that such costs, together with the Net Unreimbursed Past Response Costs (collectively

“Orphan Share Costs”) exceed $8.37 million.

a. On a periodic basis, EPA will send Settling Work Parties a bill requiring 

payment that includes an itemized costs summary, which includes direct and indirect costs 

incurred by EPA, its contractors, subcontractors, and DOJ. The bill shall not include any Future 

Oversight Costs, unless Orphan Share Costs exceed $8.37 million. Settling Work Parties shall 

make all payments within 30 days after Settling Work Parties’ receipt of each bill requiring 

payment, except as otherwise provided in Paragraph 37, in accordance with Paragraph 36

(Payment Instructions for Settling Work Parties).

b. Deposit of Future Response Costs Payments: The total amount to be paid 

by Settling Work Parties pursuant to Paragraph 35.a shall be deposited by EPA in the 

Valleycrest Landfill Special Account to be retained and used to conduct or finance response 

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

Substance Superfund, provided, however, that EPA may deposit a Future Response Costs 

payment directly into the EPA Hazardous Substance Superfund if, at the time the payment is 

received, EPA estimates that the Valleycrest Landfill Special Account balance is sufficient to 

address currently anticipated future response actions to be conducted or financed by EPA at or 

in connection with the Site. Any decision by EPA to deposit a Future Response Costs payment 

directly into the EPA Hazardous Substance Superfund for this reason shall not be subject to 
41

challenge by Settling Work Parties pursuant to the dispute resolution provisions of this CD or in 

any other forum.

36. Payment Instructions for Settling Work Parties. For all payments subject to this 

Paragraph 36, Settling Work Parties shall make such payment by Fedwire EFT, referencing the 

Site/Spill ID and DJ numbers. The Fedwire EFT payment must be sent as follows:

Federal Reserve Bank of New York

ABA = 021030004

Account = 68010727

SWIFT address = FRNYUS33

33 Liberty Street

New York, NY 10045

Field Tag 4200 of the Fedwire message should read 

“D 68010727 Environmental Protection Agency”

For all payments made under this Paragraph 36, Settling Work Parties must include references to 

the Site/Spill ID and DJ numbers. At the time of any payment required to be made in accordance 

with Paragraph 35.a, Settling Work Parties shall send notices that payment has been made to the 

United States, EPA, and the EPA Cincinnati Finance Center, all in accordance with 

Paragraph 99. All notices must include references to the Site/Spill ID and DJ numbers.

37. Contesting Response Costs. Settling Work Parties may submit a Notice of 

Dispute, initiating the procedures of Section XIV (Dispute Resolution), regarding any Future 

Response Costs billed under Paragraph 35 (Payments by Settling Work Parties for Future 

Response Costs) if they determine that EPA has made a mathematical error or included a cost 

item that is not within the definition of Future Response Costs, or if they believe EPA incurred 

excess costs as a direct result of an EPA action that was inconsistent with a specific provision or 

provisions of the NCP. Such Notice of Dispute shall be submitted in writing within 30 days after 

receipt of the bill and must be sent to the United States pursuant to Section XXI (Notices and 
42

Submissions). Such Notice of Dispute shall specifically identify the contested costs and the 

basis for objection. If Settling Work Parties submit a Notice of Dispute, Settling Work Parties

shall pay all uncontested costs to the United States within 30 days after Settling Work Parties’

receipt of the bill requiring payment. Simultaneously, Settling Work Parties shall establish, in a 

duly chartered bank or trust company, an interest-bearing escrow account that is insured by the 

Federal Deposit Insurance Corporation (FDIC), and remit to that escrow account funds 

equivalent to the amount of the contested costs. Settling Work Parties shall send to the United 

States, as provided in Section XXI (Notices and Submissions), a copy of the transmittal letter 

and check paying the uncontested costs, and a copy of the correspondence that establishes and 

funds the escrow account, including, but not limited to, information containing the identity of the

bank and bank account under which the escrow account is established as well as a bank 

statement showing the initial balance of the escrow account. If the United States prevails in the 

dispute, Settling Work Parties shall pay the sums due (with accrued interest) to the United States 

within 14 days after the resolution of the dispute. If Settling Work Parties prevail concerning 

any aspect of the contested costs, Settling Work Parties shall pay that portion of the costs (plus 

associated accrued interest) for which they did not prevail to the United States within 14 days 

after the resolution of the dispute. Settling Work Parties shall be disbursed any balance of the 

escrow account. All payments to the United States under this Paragraph shall be made in 

accordance with Paragraph 36 (Payment Instructions for Settling Work Parties). The dispute 

resolution procedures set forth in this Paragraph in conjunction with the procedures set forth in 

Section XIV (Dispute Resolution) shall be the exclusive mechanisms for resolving disputes 

regarding Settling Work Parties’ obligation to reimburse the United States for its Future 

Response Costs.
43

XI. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS

38. Valleycrest Landfill Disbursement Special Account and Agreement to Disburse 

Funds to Settling Work Parties. Within 30 days after the Effective Date, EPA shall establish the 

Valleycrest Landfill Disbursement Special Account and shall transfer a total of $1,710,242 from 

the Valleycrest Landfill Special Account to the Valleycrest Landfill Disbursement Special 

Account, leaving a balance of approximately $257,000 within the Valleycrest Landfill Special 

Account. Subject to the terms and conditions set forth in this Section, EPA agrees to make the 

funds in the Valleycrest Landfill Disbursement Special Account, including Interest Earned on the 

funds in such account, available for disbursement to Settling Work Parties as partial 

reimbursement for performance of the Work. EPA shall disburse funds from the Valleycrest 

Landfill Disbursement Special Account to Settling Work Parties in accordance with the 

procedures and milestones for phased disbursement set forth in this Section.

39. Timing, Amount, and Method of Disbursing Funds From the Valleycrest Landfill

Disbursement Special Account. Within 30 days after EPA’s receipt of a Cost Summary and 

Certification, as defined by Paragraph 40.b, or if EPA has requested additional information under 

such paragraph or a revised Cost Summary and Certification under Paragraph 40.c, within 30 

days after receipt of the additional information or revised Cost Summary and Certification, and 

subject to the conditions set forth in this Section, EPA shall disburse the funds from the 

Valleycrest Landfill Disbursement Special Account at the completion of the following 
44

milestones, and in the amounts set forth below:

Milestone Disbursement of Funds

EPA approval of RA Work Plan $500,000 from the Valleycrest Landfill

Disbursement Special Account

Settling Work Parties completion of all 

Work in the EPA-approved RAWP

$800,000 from the Valleycrest Landfill

Disbursement Special Account

EPA certification of RA Completion The remaining funds from the Valleycrest 

Landfill Disbursement Special Account

including any remaining Interest Earned

EPA shall disburse the funds from the Valleycrest Landfill Disbursement Special Account to the 

Settling Work Parties by electronic transfer to the following account:

Name on Account: Dinsmore & Shohl

Bank Name: Fifth Third Bank

Account Number: 73065171

Routing Number: 04000314

40. Requests for Disbursement of Special Account Funds.

a. Within 60 days after issuance of EPA’s written confirmation that a 

milestone of the Work, as defined in Paragraph 39 (Timing, Amount, and Method of Disbursing 

Funds), has been satisfactorily completed, the Settling Work Parties shall submit to EPA a Cost 

Summary and Certification, as defined in Paragraph 40.b, covering the Work performed up to 

the date of completion of that milestone. The Settling Work Parties shall not include in any 

submission costs included in a previous Cost Summary and Certification following completion 

of an earlier milestone of the Work if those costs have been previously sought or reimbursed 

pursuant to Paragraphs 39.

b. Each Cost Summary and Certification shall include a complete and 

accurate written cost summary and certification of the necessary costs incurred and paid by 

Settling Work Parties for the Work covered by the particular submission, excluding costs not 
45

eligible for disbursement under Paragraph 41(Costs Excluded from Disbursement). Each Cost 

Summary and Certification shall contain the following statement signed by a Certified Public 

Accountant of the Settling Work Parties:

To the best of my knowledge, after thorough investigation and review of Settling Work 

Parties’ documentation of costs incurred and paid for Work performed pursuant to this 

CD [insert, as appropriate: “up to the date of completion of milestone 1,” “between the 

date of completion of milestone 1 and the date of completion of milestone 2,” or 

“between the date of completion of milestone 2 and the date of completion of the 

milestone 3,”] I certify that the information contained in or accompanying this 

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

for knowingly submitting false information, including the possibility of fine and 

imprisonment.

The Certified Public Accountant shall also provide EPA a list of the documents that he or she 

reviewed in support of the Cost Summary and Certification. Upon request by EPA, the Settling 

Work Parties shall submit to EPA any additional information that EPA deems necessary for its 

review and approval of a Cost Summary and Certification. 

c. If EPA finds that a Cost Summary and Certification includes a 

mathematical error, costs excluded under Paragraph 41 (Costs Excluded from Disbursement), 

costs that are inadequately documented, or costs submitted in a prior Cost Summary and 

Certification, it will notify the Settling Work Parties and provide them an opportunity to cure 

the deficiency by submitting a revised Cost Summary and Certification. If Settling Work 

Parties fail to cure the deficiency within 45 days after being notified of, and given the 

opportunity to cure, the deficiency, EPA will recalculate Settling Work Parties’ costs eligible for 

disbursement for that submission and disburse the corrected amount to the Settling Work Parties

in accordance with the procedures in Paragraph 39 (Timing, Amount, and Method of Disbursing 

Funds). The Settling Work Parties may dispute EPA’s recalculation under this Paragraph 

pursuant to Section XIV (Dispute Resolution). In no event shall Settling Work Parties be 
46

disbursed funds from the Valleycrest Landfill Disbursement Special Account in excess of 

amounts properly documented in a Cost Summary and Certification accepted or modified by 

EPA. 

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

shall not be sought by Settling Work Parties for, disbursement from the Valleycrest Landfill

Disbursement Special Account: (a) response costs paid pursuant to Section X (Payments for 

Response Costs); (b) any other payments made by Settling Work Parties to the United States 

pursuant to this Consent Decree including, but not limited to, any Interest or stipulated penalties 

paid pursuant to Sections X (Payments for Response Costs) or XV (Stipulated Penalties); 

(c) attorneys’ fees and costs, except for reasonable attorneys’ fees and costs necessarily related to 

obtaining access or establishing institutional controls, as required by Section VIII (Property 

Requirements); (d) costs of any response activities Settling Work Parties perform that are not 

required under, or approved by EPA pursuant to, this Consent Decree; (e) costs related to

Settling Work Parties’ litigation, settlement, development of potential contribution claims, or 

identification of defendants; (f) internal costs of Settling Work Parties, including but not limited 

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

employees of Settling Work Parties directly performing the Work; (g) any costs incurred by

Settling Work Parties prior to the Effective Date, or (h) any costs incurred by Settling Work 

Parties pursuant to Section XIV (Dispute Resolution).

42. Termination of Disbursements from the Special Account. EPA’s obligation to 

disburse funds from the Valleycrest Landfill Disbursement Special Account under this Consent 

Decree shall terminate upon EPA’s determination that Settling Work Parties: (a) have knowingly 

submitted a materially false or misleading Cost Summary and Certification; (b) have submitted a 
47

materially inaccurate or incomplete Cost Summary and Certification, and have failed to correct 

the materially inaccurate or incomplete Cost Summary and Certification within 45 days after 

being notified of, and given the opportunity to cure, the deficiency; or (c) failed to submit a Cost 

Summary and Certification as required by Paragraph 40 (Requests for Disbursement of Special 

Account Funds) within 30 days (or such longer period as EPA agrees) after being notified that 

EPA intends to terminate its obligation to make disbursements pursuant to this Section because 

of Settling Work Parties’ failure to submit the Cost Summary and Certification as required by 

Paragraph 40. EPA’s obligation to disburse funds from the Valleycrest Landfill Disbursement 

Special Account shall also terminate upon EPA’s assumption of performance of any portion of 

the Work pursuant to Paragraph 76 (Work Takeover), when such assumption of performance of 

the Work is not challenged by Settling Work Parties or, if challenged, is upheld under 

Section XIV (Dispute Resolution). Settling Work Parties may dispute EPA’s termination of 

special account disbursements under Section XIV.

43. Recapture of Special Account Disbursements. Upon termination of

disbursements from the Valleycrest Landfill Disbursement Special Account under Paragraph 42

(Termination of Disbursements from the Special Account), if EPA has previously disbursed 

funds from the Valleycrest Landfill Disbursement Special Account for activities specifically 

related to the reason for termination ( e.g., discovery of a materially false or misleading 

submission after disbursement of funds based on that submission), EPA shall submit a bill to

Settling Work Parties for those amounts already disbursed from the Valleycrest Landfill 

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

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

repayment of the funds by Settling Work Parties. Within 60 days after receipt of EPA’s bill, 
48

Settling Work Parties shall reimburse the EPA Hazardous Substance Superfund for the total 

amount billed. Payment shall be made in accordance with Paragraph 36 (Payment Instructions 

for Settling Work Parties). Upon receipt of payment, EPA may deposit all or any portion thereof

in the Valleycrest Landfill Special Account, the Valleycrest Landfill Disbursement Special 

Account, or the EPA Hazardous Substance Superfund. The determination of where to deposit or 

how to use the funds shall not be subject to challenge by Settling Work Parties pursuant to the 

dispute resolution provisions of this CD or in any other forum. Settling Work Parties may dispute 

EPA’s determination as to recapture of funds pursuant to Section XIV (Dispute Resolution).

44. Balance of Special Account Funds. After EPA issues its written Certification of 

Remedial Action Completion pursuant to this CD, and after EPA completes all disbursement to

Settling Work Parties in accordance with this Section, if any funds remain in the Valleycrest 

Landfill Disbursement Special Account, EPA may transfer such funds to the Valleycrest Landfill 

Special Account or to the EPA Hazardous Substance Superfund. Any transfer of funds to the

Valleycrest Landfill Special Account or the EPA Hazardous Substance Superfund shall not be 

subject to challenge by Settling Work Parties pursuant to the dispute resolution provisions of this 

CD or in any other forum.

XII. INDEMNIFICATION AND INSURANCE

45. Settling Work Parties’ Indemnification of the United States. 

a. The United States does not assume any liability by entering into this CD 

or by virtue of any designation of Settling Work Parties as EPA’s authorized representatives 

under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e). Settling Work Parties shall indemnify, 

save, and hold harmless the United States and its officials, agents, employees, contractors, 

subcontractors, and representatives for or from any and all claims or causes of action arising 
49

from, or on account of, negligent or other wrongful acts or omissions of Settling Work Parties,

their officers, directors, employees, agents, contractors, subcontractors, and any persons acting 

on Settling Work Parties’ behalf or under their control, in carrying out activities pursuant to this 

CD, including, but not limited to, any claims arising from any designation of Settling Work 

Parties as EPA’s authorized representatives under Section 104(e) of CERCLA. Further, Settling 

Work Parties agree to pay the United States all costs it incurs including, but not limited to, 

attorneys’ fees and other expenses of litigation and settlement arising from, or on account of, 

claims made against the United States based on negligent or other wrongful acts or omissions of 

Settling Work Parties, 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 CD. The United States shall not be held out as a party to any contract entered into by or 

on behalf of Settling Work Parties in carrying out activities pursuant to this CD. Neither 

Settling Work Parties nor any such contractor shall be considered an agent of the United States.

b. The United States shall give Settling Work Parties notice of any claim for 

which the United States plans to seek indemnification pursuant to this Paragraph 45, and shall 

consult with Settling Work Parties prior to settling such claim.

46. Settling Work Parties covenant not to sue and agree not to assert any claims or 

causes of action against the United States for damages or reimbursement or for set-off of any 

payments made or to be made to the United States, arising from or on account of any contract, 

agreement, or arrangement between any one or more of Settling Work Parties and any person for 

performance of Work on or relating to the Site, including, but not limited to, claims on account 

of construction delays. In addition, Settling Work Parties shall indemnify, save and hold 

harmless the United States with respect to any and all claims for damages or reimbursement 
50

arising from or on account of any contract, agreement, or arrangement between any one or more 

of Settling Work Parties and any person for performance of Work on or relating to the Site, 

including, but not limited to, claims on account of construction delays.

47. Insurance. No later than 15 days before commencing any on-site Work, Settling 

Work Parties shall secure, and shall maintain until the first anniversary after issuance of EPA’s 

Certification of RA Completion pursuant to Paragraph 4.8 (Certification of RA Completion) of 

the SOW, commercial general liability insurance with limits of $3 million, for any one 

occurrence, and automobile liability insurance with limits of $3 million, combined single limit, 

naming the United States as an additional insured with respect to all liability arising out of the 

activities performed by or on behalf of Settling Work Parties pursuant to this CD. In addition, 

for the duration of this CD, Settling Work Parties 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 Work on behalf of Settling 

Work Parties in furtherance of this CD. Prior to commencement of the Work, Settling Work 

Parties shall provide to EPA certificates of such insurance and a copy of each insurance policy.

The Settling Work Parties shall resubmit such certificates and copies of policies each year on the 

anniversary of the Effective Date. If Settling Work Parties demonstrate by evidence satisfactory 

to EPA that any contractor or subcontractor maintains insurance equivalent to that described 

above, or insurance covering the same risks but in a lesser amount, then, with respect to that 

contractor or subcontractor, Settling Work Parties need provide only that portion of the insurance 

described above that is not maintained by the contractor or subcontractor.
51

XIII. FORCE MAJEURE

48. “Force majeure,” for purposes of this Consent Decree, is defined as any event 

arising from causes beyond the control of Settling Work Parties, of any entity controlled by 

Settling Work Parties, or of Settling Work Parties’ contractors that delays or prevents the 

performance of any obligation under this Consent Decree despite Settling Work Parties’ best 

efforts to fulfill the obligation. The requirement that Settling Work Parties exercise “best efforts 

to fulfill the obligation” includes using best efforts to anticipate any potential force majeure and 

best efforts to address the effects of any potential force majeure (a) as it is occurring and (b) 

following the potential force majeure such that the delay and any adverse effects of the delay are 

minimized to the greatest extent possible. “Force majeure” does not include financial inability to 

complete the Work or a failure to achieve the Performance Standards.

49. If any event occurs or has occurred that may delay the performance of any 

obligation under this Consent Decree for which Settling Work Parties intend or may intend to 

assert a claim of force majeure, Settling Work Parties shall notify EPA’s Project Coordinator 

orally or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of 

EPA’s designated representatives are unavailable, the Director of the Superfund Division, EPA 

Region 5, within 7 days of when Settling Work Parties first knew that the event might cause a 

delay. Within 20 days thereafter, Settling Work Parties shall provide in writing to EPA an 

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; Settling 

Work Parties’ rationale for attributing such delay to a force majeure; and a statement as to 

whether, in the opinion of Settling Work Parties, such event may cause or contribute to an 
52

endangerment to public health or welfare, or the environment. Settling Work Parties shall 

include with any notice all available documentation supporting their claim that the delay was 

attributable to a force majeure. Settling Work Parties shall be deemed to know of any 

circumstance of which Settling Work Parties, any entity controlled by Settling Work Parties, or 

Settling Work Parties’ contractors or subcontractors knew or should have known. Failure to 

comply with the above requirements regarding an event shall preclude Settling Work Parties

from asserting any claim of force majeure regarding that event, provided, however, that if EPA, 

despite the late or incomplete notice, is able to assess to its satisfaction whether the event is a 

force majeure under Paragraph 48 and whether Settling Work Parties have exercised their best 

efforts under Paragraph 48, EPA may, in its unreviewable discretion, excuse in writing Settling 

Work Parties’ failure to submit timely or complete notices under this Paragraph.

50. If EPA agrees that the delay or anticipated delay is attributable to a force majeure, 

the time for performance of the obligations under this Consent Decree that are affected by the 

force majeure will be extended by EPA for such time as is necessary to complete those 

obligations. An extension of the time for performance of the obligations affected by the force 

majeure shall not, of itself, extend the time for performance of any other obligation. If EPA does 

not agree that the delay or anticipated delay has been or will be caused by a force majeure, EPA 

will notify Settling Work Parties in writing of its decision. If EPA agrees that the delay is 

attributable to a force majeure, EPA will notify Settling Work Parties in writing of the length of 

the extension, if any, for performance of the obligations affected by the force majeure.

51. If Settling Work Parties elect to invoke the dispute resolution procedures set forth 

in Section XIV (Dispute Resolution) regarding EPA’s position, they shall do so no later than 

15 days after receipt of EPA’s notice. In any such proceeding, Settling Work Parties shall have 
53

the burden of demonstrating by a preponderance of the evidence that the delay or anticipated 

delay has been or will be caused by a force majeure, that the duration of the delay or the 

extension sought was or will be warranted under the circumstances, that best efforts were 

exercised to avoid and mitigate the effects of the delay, and that Settling Work Parties complied 

with the requirements of Paragraphs 48 and 49. If Settling Work Parties carry this burden, the 

delay at issue shall be deemed not to be a violation by Settling Work Parties of the affected 

obligation of this Consent Decree identified to EPA and the Court. 

52. The failure by EPA to timely complete any obligation under the CD or under the 

SOW is not a violation of the CD, provided, however, that if such failure prevents Settling Work 

Parties from meeting one or more deadlines in the SOW, Settling Work Parties may seek relief 

under this Section.

XIV. DISPUTE RESOLUTION

53. Unless otherwise expressly provided for in this Consent Decree, the dispute 

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes 

regarding this Consent Decree. However, the procedures set forth in this Section shall not apply 

to actions by the United States to enforce obligations of Settling Work Parties that have not been 

disputed in accordance with this Section. 

54. A dispute shall be considered to have arisen when one party sends the other 

parties a written Notice of Dispute. Any dispute regarding this CD 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 30 days from the time the dispute arises, unless it is modified by 

written agreement of the parties to the dispute.
54

55. Statements of Position.

a. In the event that the parties cannot resolve a dispute by informal 

negotiations under the preceding Paragraph, then the position advanced by EPA shall be 

considered binding unless, within 30 days after the conclusion of the informal negotiation 

period, Settling Work Parties invoke the formal dispute resolution procedures of this Section by 

serving on the United States a written Statement of Position on the matter in dispute, including, 

but not limited to, any factual data, analysis, or opinion supporting that position and any 

supporting documentation relied upon by Settling Work Parties. The Statement of Position shall 

specify Settling Work Parties’ position as to whether formal dispute resolution should proceed 

under Paragraphs 56 (Record Review) or 57.

b. Within 30 days after receipt of Settling Work Parties’ Statement of 

Position, EPA will serve on Settling Work Parties 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 56 (Record Review) or 

Paragraph 57. Within 21 days after receipt of EPA’s Statement of Position, Settling Work 

Parties may submit a Reply.

c. If there is disagreement between EPA and Settling Work Parties as to 

whether dispute resolution should proceed under Paragraphs 56 (Record Review) or 57, the 

parties to the dispute shall follow the procedures set forth in the paragraph determined by EPA 

to be applicable. However, if Settling Work Parties 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 56 and 57.
55

56. Record Review. Formal dispute resolution for disputes pertaining to the selection 

or adequacy of any response action and all other disputes that are accorded review on the 

administrative record under applicable principles of administrative law shall be conducted 

pursuant to the procedures set forth in this Paragraph. For purposes of this Paragraph, the 

adequacy of any response action includes, without limitation, the adequacy or appropriateness of 

plans, procedures to implement plans, or any other items requiring approval by EPA under this 

Consent Decree, and the adequacy of the performance of response actions taken pursuant to this 

Consent Decree. Nothing in this Consent Decree shall be construed to allow any dispute by 

Settling Work Parties regarding the validity of the ROD’s provisions.

a. An administrative record of the dispute shall be maintained by EPA and 

shall contain all statements of position, including supporting documentation, submitted pursuant 

to this Section. Where appropriate, EPA may allow submission of supplemental statements of 

position by the parties to the dispute.

b. The Director of the Superfund Division, EPA Region 5, will issue a final 

administrative decision resolving the dispute based on the administrative record described in 

Paragraph 56.a. This decision shall be binding upon Settling Work Parties, subject only to the 

right to seek judicial review pursuant to Paragraphs 56.c and 56.d.

c. Any administrative decision made by EPA pursuant to Paragraph 56.b

shall be reviewable by this Court, provided that a motion for judicial review of the decision is 

filed by Settling Work Parties with the Court and served on all Parties within twenty days after 

receipt of EPA’s decision in writing. 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 
56

any, within which the dispute must be resolved to ensure orderly implementation of this Consent 

Decree. The United States may file a response to Settling Work Parties’ motion.

d. In proceedings on any dispute governed by this Paragraph, Settling Work 

Parties shall have the burden of demonstrating that the decision of the Superfund Division 

Director is arbitrary and capricious or otherwise not in accordance with law. Judicial review of 

EPA’s decision shall be on the administrative record compiled pursuant to Paragraph 56.a.

57. Formal dispute resolution for disputes that neither pertain to the selection or 

adequacy of any response action nor are otherwise accorded review on the administrative record 

under applicable principles of administrative law, shall be governed by this Paragraph.

a. The Director of the Superfund Division, EPA Region 5, will issue a final 

decision resolving the dispute based on the statements of position and reply, if any, served under 

Paragraph 55. The Superfund Division Director’s decision shall be binding on Settling Work 

Parties unless, within 10 days after receipt of the decision, Settling Work Parties 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 CD. The United States may file a response to Settling Work Parties’ motion.

b. Notwithstanding Paragraph M (CERCLA Section 113(j) Record Review 

of ROD and Work) of Section I (Background), judicial review of any dispute governed by this 

Paragraph shall be governed by applicable principles of law.

58. The invocation of formal dispute resolution procedures under this Section does 

not extend, postpone, or affect in any way any obligation of Settling Work Parties under this CD, 

except as provided in Paragraph 37 (Contesting Response Costs), as agreed by EPA, or as 
57

determined by the Court. 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 66. Notwithstanding the stay of payment, stipulated penalties shall accrue from the 

first day of noncompliance with any applicable provision of this CD. In the event that Settling 

Work Parties do not prevail on the disputed issue, stipulated penalties shall be assessed and paid 

as provided in Section XV (Stipulated Penalties).

XV. STIPULATED PENALTIES

59. Settling Work Parties shall be liable for stipulated penalties in the amounts set 

forth in Paragraphs 60 and 61 to the United States for failure to comply with the requirements of 

this Consent Decree specified below, unless excused under Section XIII (Force Majeure). 

“Compliance” by Settling Work Parties shall include completion of all activities and obligations, 

including payments, required under this Consent Decree, or any deliverable approved under this 

Consent Decree, in accordance with all applicable requirements of law, this Consent Decree, the 

SOW, and any deliverables approved under this Consent Decree and within the specified time 

schedules established by and approved under this Consent Decree. 

60. Stipulated Penalty Amounts - Work (Including Payments and Excluding 

Deliverables).

a. The following stipulated penalties shall accrue per violation per day for 

any noncompliance with requirements identified in Paragraph 60.b:

Period of Noncompliance Penalty Per Violation Per Day

1st through 14th day $750

15th through 30th day $1,500

31st day and beyond $3,000
58

b. Compliance Milestones.

(1) Award RA contract(s);

(2) Pre-construction inspection and meeting;

(3) Initiate construction of RA;

(4) Completion of Cap Component, referred to in the SOW as 

"consolidation and covering of the Site," in accordance with schedule set forth in the approved 

RA Work Plan;

(5) Completion of construction of monitoring and extraction wells in 

accordance with the schedule set forth in the approved RA Work Plan;

(6) Conduct groundwater and leachate sampling in accordance with the 

schedule set forth in the approved RA Work Plan;

(7) Conduct final inspection, for the Soil Remedy Component and for 

the Work, in accordance with the schedule set forth in the SOW;

(8) Payment For Response Costs pursuant to Paragraph 35 of Section 

X (Payment for Response Costs);

(9) Establishment and maintenance of financial assurance in 

compliance with the timelines and other substantive and procedural requirements of Section IX

(Financial Assurance); or

(10) Perform activities to complete the Work in accordance with EPA’s 

notice issued pursuant to Paragraph 4.4d of the SOW, not including those matters identified in 

Paragraph 76 (Work Takeover) below.
59

61. Stipulated Penalty Amounts - Deliverables.

a. Material Defects. If an initially submitted or resubmitted deliverable, as 

the term is used in Section 6 (Deliverables) and elsewhere in the SOW, contains a material 

defect, and the deliverable is disapproved or modified by EPA under Paragraphs 6.6a or 6.6b of 

the SOW due to such material defect, then the material defect shall constitute a lack of 

compliance for purposes of Paragraph 59. The provisions of Section XIV (Dispute Resolution) 

and Section XV (Stipulated Penalties) shall govern the accrual and payment of any stipulated 

penalties regarding Settling Work Parties’ submissions under this CD.

b. The following stipulated penalties shall accrue per violation per day for 

failure to submit timely or adequate deliverables pursuant to the CD:

Period of Noncompliance Penalty Per Violation Per Day

1st through 14th day $550

15th through 30th day $1,250

31st day and beyond $2,000

62. In the event that EPA assumes performance of a portion or all of the Work 

pursuant to Paragraph 76 (Work Takeover), Settling Work Parties shall be liable for a stipulated 

penalty in the amount of $3 million. Stipulated penalties under this Paragraph are in addition to 

the remedies available under Paragraphs 31 (Access to Financial Assurance) and 76 (Work 

Takeover). 

63. All penalties shall begin to accrue on the day after the complete performance is 

due or the day a violation occurs and shall continue to accrue through the final day of the 

correction of the noncompliance or completion of the activity. However, stipulated penalties 

shall not accrue: (a) with respect to a deficient submission under Paragraph 6.6 (Approval of 

Deliverables) of the SOW, during the period, if any, beginning on the 31st day after EPA’s
60

receipt of such submission until the date that EPA notifies Settling Work Parties of any 

deficiency; (b) with respect to a decision by the Director of the Superfund Division, EPA Region 

5, under Paragraphs 56.b or 57.a of Section XIV (Dispute Resolution), during the period, if any, 

beginning on the 21st day after the date that Settling Work Parties’ reply to EPA’s Statement of 

Position is received until the date that the Director issues a final decision regarding such dispute; 

or (c) with respect to judicial review by this Court of any dispute under Section XIV (Dispute 

Resolution), during the period, if any, beginning on the 31st day after the Court’s receipt of the 

final submission regarding the dispute until the date that the Court issues a final decision 

regarding such dispute. Nothing in this Consent Decree shall prevent the simultaneous accrual 

of separate penalties for separate violations of this Consent Decree.

64. Following EPA’s determination that Settling Work Parties have failed to comply 

with a requirement of this Consent Decree, EPA shall give Settling Work Parties written 

notification of the same and describe the noncompliance. EPA shall send Settling Work Parties a

written demand for the payment of the penalties. 

65. All penalties accruing under this Section shall be due and payable to the United 

States within 30 days after Settling Work Parties’ receipt from EPA of a demand for payment of 

the penalties, unless Settling Work Parties invoke the Dispute Resolution procedures under 

Section XIV (Dispute Resolution) within the 30-day period. All payments to the United States 

under this Section shall indicate that the payment is for stipulated penalties and shall be made in

accordance with Paragraph 36 (Payment Instructions for Settling Work Parties). 

66. Penalties shall continue to accrue as provided in Paragraph 63 during any dispute 

resolution period, but need not be paid until the following:
61

a. If the dispute is resolved by agreement of EPA and the Settling Work 

Parties, or by a decision of EPA that is not appealed to this Court, accrued penalties determined 

to be owed shall be paid to EPA within 15 days after the agreement or the receipt of EPA’s 

decision or order;

b. If the dispute is appealed to this Court and the United States prevails in 

whole or in part, Settling Work Parties shall pay all accrued penalties determined by the Court 

to be owed to EPA within 60 days after receipt of the Court’s decision or order, except as 

provided in Subparagraph 66.c;

c. If the District Court’s decision is appealed by any Party, Settling Work 

Parties shall pay all accrued penalties determined by the District Court to be owed to the United 

States into an interest-bearing escrow account, established at a duly chartered bank or trust 

company that is insured by the FDIC, within 60 days after receipt of the Court’s decision or 

order, or as otherwise determined by the Court. Penalties shall be paid into this account as they 

continue to accrue, at least every 60 days, or as otherwise determined by the Court. Within 15 

days after receipt of the final appellate court decision, the escrow agent shall pay the balance of 

the account to EPA or to Settling Work Parties to the extent that they prevail.

67. If Settling Work Parties fail to pay stipulated penalties when due, Settling Work 

Parties shall pay Interest on the unpaid stipulated penalties as follows: (a) if Settling Work 

Parties have timely invoked dispute resolution such that the obligation to pay stipulated penalties 

has been stayed pending the outcome of dispute resolution, Interest shall accrue from the date

stipulated penalties are due pursuant to Paragraph 66 until the date of payment; and (b) if Settling 

Work Parties fail to timely invoke dispute resolution, Interest shall accrue from the date of 

demand under Paragraph 65 until the date of payment. If Settling Work Parties fail to pay 
62

stipulated penalties and Interest when due, the United States may institute proceedings to collect 

the penalties and Interest. 

68. The payment of penalties and Interest, if any, shall not alter in any way Settling 

Work Parties’ obligation to complete the performance of the Work required under this Consent 

Decree.

69. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in 

any way limiting the ability of the United States to seek any other remedies or sanctions 

available by virtue of Settling Work Parties’ violation of this Consent Decree or of the statutes 

and regulations upon which it is based, including, but not limited to, penalties pursuant to 

Section 122(l) of CERCLA, 42 U.S.C. § 9622(l), 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 in this Consent Decree.

70. Notwithstanding any other provision of this Section, the United States may, in its 

unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to 

this Consent Decree. 

XVI. COVENANTS BY PLAINTIFF

71. Covenants for Settling Parties by United States. In consideration of the Remedial 

Action that will be performed and the payments that will be made by Settling Work Parties (on 

their behalf and on behalf of the Other Settling Parties) under this Consent Decree, and except as 

provided in Paragraphs 72 and 73 (United States’ Pre- and Post-Certification Reservations), and

Paragraph 75 (General Reservations of Rights), the United States covenants not to sue or to take 

administrative action against Settling Parties pursuant to Sections 106 and 107(a) of CERCLA 

relating to the Site. Except with respect to future liability, these covenants shall take effect upon: 
63

(i) the Effective Date of this Consent Decree, for the Settling Work Parties; and (ii) the later of 

the Effective Date or the date on which an Other Settling Party’s Consent Decree signature page 

is filed with the Court in this action for such Other Settling Party. With respect to future 

liability, these covenants shall take effect upon Certification of RA Completion by EPA pursuant 

to Paragraph 4.8 (Certification of RA Completion) of the SOW. These covenants are 

conditioned upon the satisfactory performance by Settling Work Parties of their obligations 

under this CD. For Other Settling Parties that own Affected Properties, these covenants are 

further conditioned upon their satisfactory performance of the obligations set forth in Section 

VIII (Property Requirements). For Affordable Auto Parts, Inc. and Richard Young, these 

covenants are further conditioned upon the satisfactory performance by Linda Young of her

obligations as an Owner SD under Section VIII (Property Requirements). These covenants 

extend only to Settling Parties and do not extend to any other person.

72. United States’ Pre-Certification Reservations. Notwithstanding any other 

provision of this Consent Decree, the United States reserves, and this Consent Decree is without 

prejudice to, the right to institute proceedings in this action or in a new action, and/or to issue an 

administrative order, seeking to compel Settling Work Parties to perform further response 

actions relating to the Site and/or to pay the United States for additional costs of response if, 

(a) prior to Certification of RA Completion, (1) conditions at the Site, previously unknown to 

EPA, are discovered, or (2) information, previously unknown to EPA, is received, in whole or in 

part, and (b) EPA determines that these previously unknown conditions or information together 

with any other relevant information indicates that the RA is not protective of human health or the 

environment. 
64

73. United States’ Post-Certification Reservations. Notwithstanding any other 

provision of this Consent Decree, the United States reserves, and this Consent Decree is without 

prejudice to, the right to institute proceedings in this action or in a new action, and/or to issue an 

administrative order, seeking to compel Settling Work Parties to perform further response 

actions relating to the Site and/or to pay the United States for additional costs of response if, 

(a) subsequent to Certification of RA Completion, (1) conditions at the Site, previously unknown 

to EPA, are discovered, or (2) information, previously unknown to EPA, is received, in whole or 

in part, and (b) EPA determines that these previously unknown conditions or this information 

together with other relevant information indicate that the RA is not protective of human health or 

the environment.

74. For purposes of Paragraph 72 (United States’ Pre-Certification Reservations), the 

information and the conditions known to EPA will include only that information and those 

conditions known to EPA as of the date the ROD was signed and set forth in the ROD for the 

Site and the administrative record supporting the ROD. For purposes of Paragraph 73 (United 

States’ Post-Certification Reservations), the information and the conditions known to EPA shall 

include only that information and those conditions known to EPA as of the date of Certification 

of Completion of the RA and set forth in the ROD, the administrative record supporting the 

ROD, the post-ROD administrative record, or in any information received by EPA pursuant to 

the requirements of this Consent Decree (including, but not limited to, any information provided 

by Settling Work Parties in support of any proposal to refine or modify the Remedial Action) 

prior to Certification of Completion of the RA.

75. General Reservations of Rights. The United States reserves, and this Consent 

Decree is without prejudice to, all rights against Settling Parties with respect to all matters not 
65

expressly included within Plaintiff’s covenants. Notwithstanding any other provision of this 

Consent Decree the United States reserves all rights against Settling Parties with respect to:

a. liability for failure to meet a requirement of this Consent Decree;

b. liability arising from the past, present, or future disposal, release, or threat 

of release of Waste Material outside of the Site;

c. liability based on the ownership of the Site when such ownership 

commences after signature of this Consent Decree by Settling Work Parties;

d. liability based on the operation of the Site when such operation 

commences after signature of this CD by Settling Work Parties and does not arise solely from 

Settling Work Parties’ performance of the Work;

e. liability based on transportation, treatment, storage, or disposal, or 

arrangement for transportation, treatment, storage, or disposal of Waste Material at or in 

connection with the Site, other than as provided in the ROD, the Work, or otherwise ordered by

EPA, after signature of this CD by Settling Work Parties;

f. liability for damages for injury to, destruction of, or loss of natural 

resources, and for the costs of any natural resource damage assessments;

g. criminal liability;

h. liability for violations of federal or state law that occur during or after 

implementation of the Work; and

i. liability, prior to achievement of Performance Standards, for additional 

response actions that EPA determines are necessary to achieve and maintain Performance 

Standards or to carry out and maintain the effectiveness of the remedy set forth in the ROD, but 
66

that cannot be required pursuant to Paragraph 13 (Modification of SOW or Related 

Deliverables).

76. Work Takeover.

a. In the event EPA determines that Settling Work Parties (1) have ceased 

implementation of any portion of the Work, (2) are seriously or repeatedly deficient or late in 

their performance of the Work, or (3) are implementing the Work in a manner that may cause an 

endangerment to human health or the environment, EPA may issue a written notice (“Work 

Takeover Notice”) to Settling Work Parties. Any Work Takeover Notice issued by EPA will 

specify the grounds upon which such notice was issued and will provide Settling Work Parties a

period of thirty days within which to remedy the circumstances giving rise to EPA’s issuance of 

such notice.

b. If, after expiration of the thirty-day notice period specified in 

Paragraph 76.a, Settling Work Parties have not remedied to EPA’s satisfaction the 

circumstances giving rise to EPA’s issuance of the relevant Work Takeover Notice, EPA may at 

any time thereafter assume the performance of all or any portion(s) of the Work as EPA deems 

necessary (“Work Takeover”). EPA will notify Settling Work Parties in writing (which writing 

may be electronic) if EPA determines that implementation of a Work Takeover is warranted 

under this Paragraph 76.b. Funding of Work Takeover costs is addressed under Paragraph 31

(Access to Financial Assurance).

c. Settling Work Parties may invoke the procedures set forth in Paragraph 56

(Record Review), to dispute EPA’s implementation of a Work Takeover under Paragraph 76.b.

However, notwithstanding Settling Work Parties’ invocation of such dispute resolution 

procedures, and during the pendency of any such dispute, EPA may in its sole discretion 
67

commence and continue a Work Takeover under Paragraph 76.b until the earlier of (1) the date 

that Settling Work Parties remedy, to EPA’s satisfaction, the circumstances giving rise to EPA’s 

issuance of the relevant Work Takeover Notice, or (2) the date that a final decision is rendered 

in accordance with Paragraph 56 (Record Review) requiring EPA to terminate such Work 

Takeover, or (3) the date of a temporary restraining order or preliminary injunction issued by a 

Court requiring EPA to terminate such Work Takeover. 

77. Notwithstanding any other provision of this Consent Decree, the United States 

retains all authority and reserves all rights to take any and all response actions authorized by law. 

XVII. COVENANTS BY SETTLING PARTIES

78. Covenants by Settling Parties. Subject to the reservations in Paragraph 80,

Setting Parties covenant not to sue and agree not to assert any claims or causes of action against 

the United States with respect to the Site and this Consent Decree, including, but not limited to:

a. any direct or indirect claim for reimbursement from the EPA Hazardous 

Substance Superfund through CERCLA Sections 106(b)(2), 107, 111, 112 or 113 (42 U.S.C. 

§§ 9606(b)(2), 9607, 9611, 9612 or 9613), or any other provision of law;

b. any claims under CERCLA Sections 107 or 113 (42 U.S.C. § 9607 or 

9613), RCRA Section 7002(a) (42 U.S.C. § 6972(a)), or state law regarding the Site and this 

Consent Decree;

c. any claims arising out of response actions at or in connection with the Site, 

including any claim under the United States Constitution, the Ohio Constitution, the Tucker Act, 

28 U.S.C. §1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at common law; or
68

d. any direct or indirect claim for disbursement from the Valleycrest Landfill 

Disbursement Account, except as provided in Section XI (Disbursement of Special Account 

Funds).

79. Except as provided in Paragraph 82 (Waiver of Claims by Settling Parties) and

Paragraph 88 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if 

the United States brings a cause of action or issues an order pursuant to any of the reservations in 

Section XVI (Covenants by Plaintiff), other than in Paragraph 75.a (claims for failure to meet a 

requirement of the CD), 75.g (criminal liability) and 75.h (violations of federal/state law during 

or after implementation of the Work), but only to the extent that Settling Parties’ claims arise 

from the same response action, response costs, or damages that the United States is seeking 

pursuant to the applicable reservation.

80. The Settling Work Parties 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, and brought pursuant to any statute other than CERCLA or RCRA and for 

which the waiver of sovereign immunity is found in a statute other than CERCLA or RCRA, for 

money damages for injury or loss of property or personal injury or death caused by the negligent 

or wrongful act or omission of any employee of the United States, as that term is defined in 

28 U.S.C. § 2671, while acting within the scope of his or her office or employment under 

circumstances where the United States, if a private person, would be liable to the claimant in 

accordance with the law of the place where the act or omission occurred. However, the 

foregoing shall not include any claim based on EPA’s selection of response actions, or the 

oversight or approval of Settling Work Parties’ deliverables or activities. 
69

81. 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).

82. Waiver of Claims by Settling Parties.

a. Settling Parties agree not to assert any claims and to waive all claims or 

causes of action (including but not limited to claims or causes of action under Sections 107(a) 

and 113 of CERCLA) that they may have:

(1) De Micromis Waiver. For all matters relating to the Site against 

any person where the person’s liability to Setting Parties with respect to the Site is based solely 

on having arranged for disposal or treatment, or for transport for disposal or treatment, of 

hazardous substances at the Site, or having accepted for transport for disposal or treatment of 

hazardous substances at the Site, if all or part of the disposal, treatment, or transport occurred 

before April 1, 2001, and the total amount of material containing hazardous substances 

contributed by such person to the Site was less than 110 gallons of liquid materials or 200 

pounds of solid materials;

(2) MSW Waiver. For all matters relating to the Site against any 

person where the person’s liability to Settling Parties with respect to the Site is based solely on 

having arranged for disposal or treatment, or for transport for disposal or treatment, of MSW at 

the Site, if the volume of MSW disposed, treated, or transported by such person to the Site did 

not exceed 0.2% of the total volume of waste at the Site; and

(3) De Minimis/Ability to Pay Waiver. For response costs relating to 

the Site against any person that has entered or in the future enters into a final CERCLA § 122(g),
70

(42 U.S.C. § 9622(g)), de minimis settlement, or a final settlement based on limited ability to 

pay, with EPA with respect to the Site.

b. Exceptions to Waivers.

(1) The waivers under this Paragraph 82 shall not apply with respect to 

any defense, claim, or cause of action that a Settling Party may have against any person 

otherwise covered by such waivers if such person asserts a claim or cause of action relating to 

the Site against such Settling Party.

(2) The waiver under Paragraph 82.a(1) (De Micromis Waiver) shall 

not apply to any claim or cause of action against any person otherwise covered by such waiver if 

EPA determines that: (i) the materials containing hazardous substances contributed to the Site by 

such person contributed significantly or could contribute significantly, either individually or in 

the aggregate, to the cost of the response action or natural resource restoration at the Site; or (ii) 

such person has failed to comply with any information request or administrative subpoena issued 

pursuant to Section 104(e) or 122(e)(3)(B) of CERCLA, 42 U.S.C. § 9604(e) or 9622(e)(3)(B), 

or Section 3007 of RCRA, 42 U.S.C. § 6927, or has impeded or is impeding, through action or 

inaction, the performance of a response action or natural resource restoration with respect to the 

Site; or if (iii) such person has been convicted of a criminal violation for the conduct to which 

the waiver would apply and that conviction has not been vitiated on appeal or otherwise.

(3) The waiver under Paragraph 82.a(2) (MSW Waiver) shall not apply 

to any claim or cause of action against any person otherwise covered by such waiver if EPA 

determines that: (i) the materials containing MSW contributed to the Site by such person 

contributed significantly or could contribute significantly, either individually or in the aggregate, 

to the cost of the response action or natural resource restoration at the Site; or (ii) such person 
71

has failed to comply with any information request or administrative subpoena issued pursuant to 

Section 104(e) or 122(e)(3)(B) of CERCLA, 42 U.S.C. § 9604(e) or 9622(e)(3)(B), or Section 

3007 of RCRA, 42 U.S.C. § 6927, or (iii) has impeded or is impeding, through action or inaction, 

the performance of a response action or natural resource restoration with respect to the Site.

(4) The waivers under Paragraph 82 shall not apply to any proof of 

claim filed by Settling Work Parties in In Re SRC Liquidation LLC (f/k/a Standard Register 

Company), Case No. 15-10541 (Bankr. D. Del). 

XVIII. EFFECT OF SETTLEMENT; CONTRIBUTION

83. Except as provided in Paragraph 82 (Waiver of Claims by Settling Parties), 

nothing in this Consent Decree shall be construed to create any rights in, or grant any cause of 

action to, any person not a Party to this Consent Decree. Except as provided in Section XVII

(Covenants by Settling Parties), each of the Parties expressly reserves any and all rights 

(including, but not limited to, those pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613), 

defenses, claims, demands, and causes of action that each Party may have with respect to any 

matter, transaction, or occurrence relating in any way to the Site against any person not a Party 

hereto. Nothing in this Consent Decree diminishes the right of the United States, pursuant to 

Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue any such persons to 

obtain additional response costs or response action and to enter into settlements that give rise to 

contribution protection pursuant to Section 113(f)(2).

84. The Parties agree, and by entering this CD this Court finds, that this Consent 

Decree constitutes a judicially-approved settlement pursuant to which each Settling Party has, as 

of the Effective Date, resolved liability to the United States within the meaning of 

Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and is entitled, as of the Effective Date, 
72

to protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, 

or as may be otherwise provided by law, for the “matters addressed” in this CD. The “matters 

addressed” in this Consent Decree are all response actions taken or to be taken and all response 

costs incurred or to be incurred, at or in connection with the Site, by the United States or any 

other person, except for the State; provided, however, that if the United States exercises rights 

under the reservations in Section XVI (Covenants by Plaintiff), other than in Paragraph 75.a

(claims for failure to meet a requirement of the CD), 75.g (criminal liability) or 75.h (violations 

of federal/state law during or after implementation of the Work), the “matters addressed” in this 

Consent Decree will no longer include those response costs or response actions that are within 

the scope of the exercised reservation. 

85. The Parties further agree, and by entering this Consent Decree this Court finds, 

that the complaint filed by the United States in this action is a civil action within the meaning of 

Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), and that this Consent Decree constitutes 

a judicially-approved settlement pursuant to which each Settling Defendant has, as of the 

Effective Date, resolved liability to the United States within the meaning of Section 113(f)(3)(B) 

of CERCLA, 42 U.S.C. § 9613(f)(3)(B). 

86. Each Settling Party shall, with respect to any suit or claim brought by it for 

matters related to this Consent Decree, notify the United States in writing no later than 60 days 

prior to the initiation of such suit or claim. 

87. Each Settling Party shall, with respect to any suit or claim brought against it for 

matters related to this Consent Decree, notify in writing the United States within 10 days after 

service of the complaint on such Settling Party. In addition, each Settling Party shall notify the 
73

United States within 10 days after service or receipt of any Motion for Summary Judgment and 

within 10 days after receipt of any order from a court setting a case for trial.

88. Res Judicata and Other Defenses. In any subsequent administrative or judicial 

proceeding initiated by the United States for injunctive relief, recovery of response costs, or 

other appropriate relief relating to the Site, Settling Parties 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 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 XVI (Covenants by Plaintiff).

XIX. ACCESS TO INFORMATION

89. Settling Work Parties shall provide to EPA upon request, copies of all records, 

reports, documents, and other information (including records, reports, documents, and other 

information in electronic form) (hereinafter referred to as “Records”) within Settling Work 

Parties’ possession or control or that of their contractors or agents relating to activities at the Site 

or to the implementation of this Consent Decree, including, but not limited to, sampling, 

analysis, chain of custody records, manifests, trucking logs, receipts, reports, sample traffic 

routing, correspondence, or other documents or information regarding the Work. Settling Work 

Parties shall also make available to EPA, for purposes of investigation, information gathering, or 

testimony, their employees, agents, or representatives with knowledge of relevant facts 

concerning the performance of the Work. 
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90. Privileged and Protected Claims.

a. Settling Work Parties may assert that all or part of a Record requested by 

Plaintiff is privileged or protected as provided under federal law, in lieu of providing the 

Record, provided Settling Work Parties comply with Paragraph 90.b, and except as provided in 

Paragraph 90.c.

b. If Settling Work Parties assert a claim of privilege or protection, they shall 

provide Plaintiff with the following information regarding such Record: its title; its date; the 

name, title, affiliation (e.g., company or firm), and address of the author, of each addressee, and 

of each recipient; a description of the Record’s contents; and the privilege or protection asserted. 

If a claim of privilege or protection applies only to a portion of a Record, Settling Work Parties

shall provide the Record to Plaintiff in redacted form to mask the privileged or protected portion 

only. Settling Work Parties shall retain all Records that they claim to be privileged or protected 

until Plaintiff has had a reasonable opportunity to dispute the privilege or protection claim and 

any such dispute has been resolved in the Settling Work Parties’ favor.

c. Settling Work Parties may make no claim of privilege or protection 

regarding: (1) any data regarding the Site, including, but not limited to, all sampling, analytical, 

monitoring, hydrogeologic, scientific, chemical, radiological or engineering data, or the portion 

of any other Record that evidences conditions at or around the Site; or (2) the portion of any 

Record that Settling Work Parties are required to create or generate pursuant to this Consent 

Decree.

91. Business Confidential Claims. Settling Work Parties may assert that all or part of 

a Record provided to Plaintiff under this Section or Section XX (Retention of Records) is 

business confidential to the extent permitted by and in accordance with Section 104(e)(7) of 
75

CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Settling Work Parties shall 

segregate and clearly identify all Records or parts thereof submitted under this Consent Decree

for which Settling Work Parties assert business confidentiality claims. Records submitted to 

EPA 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 Records when they are submitted 

to EPA, or if EPA has notified Settling Work Parties that the Records are not confidential under 

the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be 

given access to such Records without further notice to Settling Work Parties.

92. If relevant to the proceeding, the Parties agree that validated sampling or 

monitoring data generated in accordance with the SOW and reviewed and approved by EPA 

shall be admissible as evidence, without objection, in any proceeding under this Consent Decree.

93. Notwithstanding any provision of this Consent Decree, Plaintiff retains all of its 

information gathering and inspection authorities and rights, including enforcement actions 

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

XX. RETENTION OF RECORDS

94. Until ten years after EPA’s Certification of Work Completion under Paragraph 

4.9 of the SOW, each Settling Work Party shall preserve and retain all non-identical copies of 

Records (including Records in electronic form) now in its possession or control or that come into 

its possession or control that relate in any manner to its liability under CERCLA with respect to 

the Site, provided, however, that Settling Work Parties who are potentially liable as owners or 

operators of the Site must retain, in addition, all Records that relate to the liability of any other 

person under CERCLA with respect to the Site. Each Settling Work Party may preserve and 

retain such Records in a single, combined repository with the Records of other Settling Work 
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Parties, provided that (i) the repository is acceptable to EPA, (ii) each Settling Work Party

retains possession and control of all Records that it stores at the repository, and (iii) each Settling 

Work Party ensures that its Records are marked, indexed, and maintained at the repository in 

such a manner that any person can identify and collect those Records.

95. Each Settling Work Party must also retain, and instruct its contractors and agents 

to preserve, for the same period of time specified in Paragraph 94 above, all non-identical copies 

of the last draft or final version of any Records (including Records in electronic form) now in its 

possession or control or that come into its possession or control that relate in any manner to the 

performance of the Work, provided, however, that each Settling Work Party (and its contractors 

and agents) must retain, in addition, copies of all data generated during the performance of the 

Work and not contained in the aforementioned Records required to be retained. Each Settling 

Work Party may preserve and retain such Records and data in a single, combined repository with 

the Records and data of other Settling Work Parties, provided that (i) the repository is acceptable 

to EPA, (ii) each Settling Work Party retains possession and control of all Records and data that 

it stores at the repository, and (iii) each Settling Work Party ensures that its Records and data 

documents are marked, indexed, and maintained at the repository in such a manner that any 

person can identify and collect those Records and data.

96. Each of the above record retention requirements in Paragraphs 94 and 95 shall 

apply regardless of any corporate retention policy to the contrary.

97. At the conclusion of this record retention period, Settling Work Parties shall 

notify the United States at least 90 days prior to the destruction of any such Records, and, upon 

request by the United States, and except as provided in Paragraph 90 (Privileged and Protected 

Claims), Settling Work Parties shall deliver any such Records to EPA.
77

98. Each Settling Work Party 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 (other than identical copies) relating to its potential liability regarding 

the Site since notification of potential liability by the United States or the State and that it has 

fully complied with any and all EPA and State requests for information regarding the Site 

pursuant to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and 

9622(e)(3)(B), and Section 3007 of RCRA, 42 U.S.C. § 6927, and state law.

XXI. NOTICES AND SUBMISSIONS

99. All approvals, consents, deliverables, modifications, notices, notifications, 

objections, proposals, reports, and requests specified in this Consent must be in writing unless 

otherwise specified. Whenever, under this Consent Decree, notice is required to be given, or a 

report or other document is required to be sent, by one Party to another, it must be directed to the 

person(s) specified below at the address(es) specified below. Any Party may change the person 

and/or address applicable to it by providing notice of such change to all Parties. All notices 

under this Section are effective upon receipt, unless otherwise specified. Notices required to be 

sent to EPA, and not to the United States, should not be sent to the DOJ. Except as otherwise 

provided, notice to a Party by email (if that option is provided below) or by regular mail in 

accordance with this Section satisfies any notice requirement of the Consent Decree regarding 

such Party.
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As to the United States: EES Case Management Unit

U.S. Department of Justice

Environment and Natural Resources Division

P.O. Box 7611

Washington, D.C. 20044-7611

eescdcopy.enrd@usdoj.gov 

Re: DJ # 90-11-3-11076

As to EPA: Director, Superfund Division

U.S. Environmental Protection Agency

Region 5

77 West Jackson Blvd.

Chicago, IL 60604

and: Dion Novak

EPA Remedial Project Manager

U.S. Environmental Protection Agency

Region 5 (SR-6J)

77 West Jackson Blvd.

Chicago, IL 60604

novak.dion@epa.gov

(312) 886-4737

As to the EPA Regional Financial 

Management Officer:

Justin Abrams, Accountant, USEPA

Region 5, RMD, CB/PAAS

77 West Jackson Blvd., MC:MF-10J

Chicago, IL 60604

As to EPA Cincinnati Finance 

Center:

EPA Cincinnati Finance Center

26 W. Martin Luther King Drive

Cincinnati, Ohio 45268

cinwd_acctsreceivable@epa.gov
79

As to Settling Work Parties: Mike Samples

Settling Work Parties’ Project Coordinator

de maximis, Inc.

450 Montbrook Lane

Knoxville, TN 27919

(865) 691-5052

Mikes@demaximis.com

With a copy to:

Steve N. Siegel, Esq.

Dinsmore & Shohl LLP

255 East 5th Street

Suite 1900

Cincinnati, OH 45202

Christopher Murphy

NCR Corporation

3097 Satellite Boulevard

Duluth, Georgia 30096

Scott Blackhurst, Esq.

Senior Counsel - Health, Safety and Environment

ZF TRW

Active & Passive Safety Technology

12001 Tech Center Drive

Livonia, Michigan USA 48150

Cargill Law

Starches and Sweeteners Environmental Counsel

15407 McGinty Road West MS24

Wayzata, MN 55391

XXII. RETENTION OF JURISDICTION

100. This Court retains jurisdiction over both the subject matter of this Consent Decree 

and Settling Parties for the duration of the performance of the terms and provisions of this 

Consent Decree for the purpose of enabling any of the Parties to apply to the Court at any time 

for such further order, direction, and relief as may be necessary or appropriate for the
80

construction or modification of this Consent Decree, or to effectuate or enforce compliance with 

its terms, or to resolve disputes in accordance with Section XIV (Dispute Resolution).

XXIII. APPENDICES

101. The following appendices are attached to and incorporated into this Consent 

Decree:

“Appendix A” is the ROD.

“Appendix B” is the SOW.

“Appendix C” is map of the Site.

“Appendix D” is the complete list of Settling Work Parties.

“Appendix E” is the complete list of parties eligible to join this Consent Decree as an 

Other Settling Party.

“Appendix F” is the form for the Environmental Covenant Amendment.

“Appendix G” is the sample Agreement for transferees of Affected Properties owned by 

Settling Parties.

XXIV. MODIFICATION

102. Except as provided in Paragraph 13 (Modification of SOW or Related 

Deliverables), material modifications to this Consent Decree, including the SOW, shall be in 

writing, signed by the United States and Settling Work Parties, and shall be effective upon 

approval by the Court. Except as provided in Paragraph 13, non-material modifications to this 

CD, including the SOW, shall be in writing and shall be effective when signed by duly 

authorized representatives of the United States and the Settling Work Parties. A modification to 

the SOW shall be considered material if it implements a ROD amendment that fundamentally 

alters the basic features of the selected remedy within the meaning of 40 C.F.R. 

§ 300.435(c)(2)(ii). Before providing its approval to any modification to the SOW, the United 
81

States will provide the State with a reasonable opportunity to review and comment on the 

proposed modification.

103. Modifications (non-material and material) may be executed without the signatures 

of Other Settling Parties where such modifications (a) relate to the Work or (b) do not affect the 

obligations of or the protections afforded to the Other Settling Parties.

104. Nothing in this Consent Decree shall be deemed to alter the Court’s power to 

enforce, supervise, or approve modifications to this Consent Decree.

XXV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

105. This Consent shall be lodged with the Court for at least 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 that indicate that the 

Consent Decree is inappropriate, improper, or inadequate. Settling Parties consent to the entry of 

this Consent Decree without further notice.

106. 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 or among the Parties.

XXVI. SIGNATORIES/SERVICE

107. Each undersigned representative of a Settling Party to this Consent Decree and the 

Assistant Attorney General for the Environment and Natural Resources Division of the 

Department of Justice certifies that he or she is fully authorized to enter into the terms and 

conditions of this Consent Decree and to execute and legally bind such Party to this document. 
82

108. Each Settling Party agrees not to oppose entry of this Consent Decree by this 

Court or to challenge any provision of this Consent Decree unless the United States has notified 

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

109. Each Settling Party 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 Parties 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. Settling Parties need not 

file an answer to the complaint in this action unless or until the Court expressly declines to enter 

this Consent Decree.

XXVII. FINAL JUDGMENT

110. This Consent Decree and its appendices constitute the final, complete, and 

exclusive agreement and understanding among the Parties regarding the settlement embodied in 

the Consent Decree. The Parties acknowledge that there are no representations, agreements, or 

understandings relating to the settlement other than those expressly contained in this Consent 

Decree.

111. Upon entry of this Consent Decree by the Court, this Consent Decree shall 

constitute a final judgment between and among the United States and Settling Parties. The Court 

enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. 
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SO ORDERED THIS __ DAY OF _______, 20__. 

___________________________________

United States District Judge

30th October 18

s/Thomas M. Rose 









THE UNDERSIGNED OTHER SETTLING PARTY hereby assents to all terms of the 

UNITED STATES v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, et al. Consent

Decree relating to Valleycrest Landfill Superfund Site applicable to the "Settling Parties" and the 

"Other Settling Parties," including the pertinent provisions of Section XVII (Covenants by the 

Settling Parties). The Consent Decree shall apply to and bind the undersigned "Other Settling 

Party" upon the later of the Consent Decree's Effective Date or the date on which this Consent 

Decree signature page is filed with the Court in this action.

____________

Date

FOR __________________________ 

 Print or Type Company Name 

Signature: ___________________________________ 

Name (print): 

Title: 

Address:

Agent Authorized to Accept Service 

on Behalf of Above-signed Party: 

Name (print): 

Title: 

Address:

Phone:

email: