ADMINISTRATIVE ORDER/CONSENT DECREE |liii|i{i||i||||||llll 

CLOSE-OUT FORM i" 18366-R8 SDMS 

SITE NAME: 

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f^.dl^^^^S^ S/^ 

o^t^n 1 ==VrrEl - OH-^^\^ CO^Kf^-ZC^La 

DOCUMENT TYPE: AOC 

IF OTHER, PLEASE DESCRIBE: 

C^-^(76 UAO OTHER 

ACTIVITY: REMOVAL RI/FS _yJ®/R A _j_ CASH OUT 

IF OTHER, PLEASE DESCRIBE: 

OTHER 

EFFECTIVE DATE: I ^-^It^-^-^Ef—f 

CERTIFICATION OF COMPLETION DATE: ^ W 6;-p.Of>r ) 

PLEASE ATTACH ALL COPIES OF ALL CLOSEOUT-RELATED DOCUMENTS: 

FINAL OSC REPORT 

PRP'S CERTIFICATION OF COMPLETION LETTER 

^RPM'S APPROVAL OF WORK COMPLETION 

FINAL BILLING DOCUMENTS ^ ^ 

'OTHER DOCUMENTS Oecr^^^i^ *?^^ewe^G>f4: 

T 

^^..^H E ABOVE DOCUMENTS ARE LOCATED IN THE SUPERFUND RECORDS 

CENTER AND THE FINANCE OFFICE RECORDS. 

FINAL DEMAND/BILLING DATE: 

RECOVERED FOR: 

OVERSIGHT COSTS 

DATE OF PAYMENT: 

AMOUNT: 

PAST COSTS FUTURE COSTS 

AMOUNT: 

IF THE AMOUNT PAID DIFFERS FROM THE AMOUNT BILLED, PLEASE EXPLAIN: 

Technical Ehforcemem^ogram (Enf Spec) 

Date: 

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Jate' ^-U'O') 

CLOSEOUT OF THIS AO/CD DOES NOT AFFECT ANY OF THE ONGOING OBLIGATIONS 

REMAINING UNDER THE AO/CD. 
1074953-R8 SDMS 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 8 

.'^.;>. 1595 Wynkoop Streel 

. • DENVER. CO 60202-1129 

Phone 800-227-8917 . 

hUp;//www.epa.gov/region08 

Aui^ust 16, 2007 

Robcrl Sochnlcn, Pi-csidcm 

Lilllcson, Inc, 

2100 Ea-sl nengiil Boulevard 

Apt. I'203 " • • • 

Sail Lake Cily.UT 84121 

\K\\: Ccrlillcation ofCon-simction Work Completion for the Midvale Slag NPL Silc 

Dear Mr. Sochiilcn; 

By Ihi.s Idler LPA cerlijlcs llial Lilllcson, Inc. ha.s complclcd all con.slruclion work rcc)iiircd 

under iKc KD/RA Con.scnl Decree, Civil No. 2:04 CV 00843 DB for ihc Midvale Slug NPL Sile. 

I-;PA, UDIvQ and Midvale Ciiy conduclCd a final inspoclion ol'lhc work uponcomplclion oflhe 

physical construclion on ,Iunc 26, 2006. A one year Opcralion and Maintenance Warranty period 

began on .Uily 6, 2006. to cn.surc ihal ihe remedy continued lo operate as designed. On May 15, 

2007. r;PA, 1)1)I':Q and Midvale City reprcscnlalives conducted a second fmal inspeclion lo 

verily thai ihc remedy remained ciTeciivc. All parties agreed ihal the remedy moels standards for 

Opcraiional and I'unclional, in accordance wilh the FPA's rules, guidance and policies. 

On .lunc 11. 2007, LN TACT submitted ihe Tinal Remedial Action Report. EPA Region 8"s 

designated approving oiTicial signed oft'on Ihis Report on August 1."?, 2007. In accordance wilh 

Paragraph 49b.of the Consent Decree, EPA certifies the completion ofthe conslruclion work 

required under the Consent Decree. Congralulalions on achieving this landmark event. 

Sincerely, • y 

•.,.7^\7 - U.i . ^ - . •. ..•:, -^ - . 

I'ranccs L. Costan/.i, P.E. 

Remedial Project Manager 

Cc: Tony Howes (UDLQ) 

Phillip llilKMidvale Ciiy) 

Keilh Ludwig (Midvale Ciiy) 

Ray Limb (Midvale Ciiy) 

Kevin Murray (Chapman and Culler) 

Li/..Sea>igs(l'N'!"AC"T) 

® Prinied on Recycled Paper 
SDMS Document ID 

1055083 

THOMAS L. SANSONETTI 

Assistant Attomey General 

Environment and Natural Resources Division 

U.S. Department of Justice 

Washington, D.C. 20530 

ROBERT R. HOML\K 

Environmental Enforcement Section 

U.S. Department of Justice 

999 18th Street, Suite 945, North Tower 

Denver, CO 80202-2449 

Telephone: (303)312-7353 

Facsimile: (303)312-7331 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF UTAH, CENTRAL DIVISION 

THE UNITED STATES OF AMERICA, 

Plaintiff, 

LITTLESON, INC., a Delaware corporation; 

MIDVALE CITY CORPORATION, a municipal 

corporation and political subdivision ofthe State 

of Utah; and UNION PACIFIC RAILROAD 

COMPANY, a Delaware corporation, 

Defendants. 

RD/RA CONSENT DECREE 

Civil No. 2:04CV 069.^3^6 
TABLE OF CONTENTS 

Page 

L BACKGROUND 1 

IL JURISDICTION 3 

in. PARTIES BOUND 3 

IV. DEFINITIONS 4 

V. GENERAL PROVISIONS ! 9 

VL PERFORMANCE OF THE LITTLESON WORK 11 

VIL REMEDY REVIEW 14 

vm. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS 14 

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

X. REPORTING REQUIREMENTS 19 

XL EPA APPROVAL OF DELIVERABLES 21 

Xn. PROJECT COORDINATORS 21 

Xm. ASSURANCE OF ABILITY TO COMPLETE LITTLESON WORK 22 

XrV'. COMPLETION OF MILESTONE WORK 23 

XV. EMERGENCY RESPONSE 25 

XVL PAYMENTS FOR RESPONSE COSTS 26 

XVIL DISBURSEMENT OF SPECIAL ACCOUNT FUNDS 27 

XVm. REIMBURSEMENT OF RESPONSE COSTS 31 

XIX. INDEMNIFICATION AND INSURANCE 32 

XX. FORCE MAJEURE 33 

XXL DISPUTE RESOLUTION 34 

XXII. STIPULATED PENALTIES 37 

XXm. COVENANTS BY THE UNITED STATES 39 

XXIV. COVENANTS BY SETTLING DEFENDANTS AND SETTLING FEDERAL 

AGENCIES 44 

XXV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION 46 

XXVL ACCESS TO INFORMATION 47 

XXVIL RETENTION OF RECORDS 48 

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XXVm. NOTICES AND SUBMISSIONS 50 

XXIX. EFFECTFVE DATE 52 

XXX. RETENTION OF JURISDICTION 52 

XXXL APPENDICES 52 

XXXIL COMMUNITY RELATIONS 53 

XXXin. MODIFICATION 53 

XXXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 53 

XXXV. SIGNATORIES/SERVICE 54 

XXXVL FINAL JUDGMENT 54 
I. BACKGROUND 

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

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

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

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

Union Pacific Railroad are liable for contribution pursuant to Section 113(f)(1) of 

the Comprehensive Environmental Response, Compensation, and Liability Act 

("CERCLA"), 42 U.S.C. §§ 9613(f)(1), and further seeking a declaratory 

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

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

parties. 

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

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

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

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

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

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

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

to consolidate this action with the Littleson Litigation. 

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

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

potentially responsible parties regarding the implementation ofthe remedial 

design and remedial action for the Site, and EPA has provided the State with an 

opportunity to participate in such negotiations and be a party to this Consent 

Decree. 

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

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

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

negotiations with potentially responsible parties regarding the release of 

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

under Federal trusteeship and encouraged the Trustees to participate in the 

negotiation ofthis Consent Decree. 

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

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

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

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

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

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

transactions or occurrences alleged in any claim asserted by Littleson. 

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

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

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

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

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

Decision for the OUI portion ofthe Site. Response actions as required by the 

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

1998. 

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

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

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

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

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

May 20, 2002, in a major local newspaper of general circulation. EPA provided 

an opportunity for written and oral comments from the public on the Proposed 

Plan for remedial action and conducted a public meeting on June 13, 2002 in 

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

ofthe administrative record upon which the Regional Administrator based the 

selection ofthe response action. 

J. The decision by EPA on the remedial action to be implemented for the 0U2 

portion ofthe Site is embodied in a final Record of Decision for 0U2 ("0U2 

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

concurrence on October 31, 2002. The 0U2 ROD includes EPA's explanation for 

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

a responsiveness summary to the public comments. 

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

CERCLA, 42 U.S.C. § 9617(b). 

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

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

Littleson if conducted in accordance with the requirements ofthis Consent Decree 

and its appendices. 

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

necessary fimding provided by EPA, Midvale City will properly and promptly 
implement and enforce the institutional Controls in accordance with the 

requirements ofthis Consent Decree and the Cooperative Agreement. 

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

remedial action selected by the 0U2 ROD shall constitute a response action taken 

or ordered by the President. 

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

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

implementation ofthis Consent Decree will expedite the cleanup ofthe Site and 

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

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

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

II. JURISDICTION 

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

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

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

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

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

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

jurisdiction to enter and enforce this Consent Decree. 

III. PARTIES BOUND 

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

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

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

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

Decree, except as specifically provided herein. 

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

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

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

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

hereunder upon performance ofthe Littleson Work in conformity with the terms ofthis 

Consent Decree. Littleson or its contractors shall provide written notice ofthe Consent 

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

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

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

contemplated herein in accordance with this Consent Decree. With regard to the activities 

undertaken pursuant to this Consent Decree, each contractor and subcontractor shall be 

deemed to be in a contractual relationship with Littleson within the meaning of Section 
107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3). Littleson shall also provide a copy of 

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

IV. DEFINITIONS 

Unless otherwise expressly provided herein, terms used in this Consent Decree that are 

defined in CERCLA or in regulations promulgated under CERCLA shall have the 

meaning assigned to them in CERCLA or in such regulations. Whenever terms listed 

below are used in this Consent Decree or in the appendices attached hereto and 

incorporated hereunder, the following definitions shall apply: 

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

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

same meanings as set forth in the 0U2 ROD. 

>. 

"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and 

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

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

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

and any appendix, this Consent Decree shall control. 

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

Work Plan). 

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

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

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

Institutional Controls. 

"Day" shall mean a calendar day unless expressly stated to be a working day. "Working 

Day" shall mean a day other than a Saturday, Sunday, or State or Federal holiday. In 

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

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

business ofthe next Working Day. 

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

condition for receiving reimbursement as provided in Article XVIL DISBURSEMENT 

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

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

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

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

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

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

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

documents reviewed in support ofthe Disbursement Request. 

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

Paragraph 117. 

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

departments or agencies ofthe United States. 

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

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

incurred by the United States after the Effective Date. 

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

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

remedial design for the groundwater remedial altemative adopted in the 0U2 ROD. 

"Inspection Checklists" shall mean the Work Milestone Completion Inspection 

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

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

of each Work Milestone. 

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

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

on October 1 ofeach 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 accmes. The rate of interest is 

subject.to change on October 1 ofeach year. 

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

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

annual retum on investments ofthe Hazardous Substance Superfimd. The applicable rate 

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

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

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

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

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

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

XXVIL RETENTION OF RECORDS or Article DC. ACCESS, O&M, AND 

INSTITUTIONAL CONTROLS ofthis Consent Decree. 
"Littleson Work Successor" shall mean any person or entity that EPA approves pursuant 

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

part ofthe Milestone Work under this Consent Decree. 

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

political subdivision ofthe state of Utah. 

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

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

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

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

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

Consent Decree. 

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

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

11 acres located in the southeast area of 0U2. 

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

Substances Pollution Contingency Plan promulgated pursuant to Section 105 of 

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

thereto. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

seq. (also known as the Resource Conservation and Recovery Act). 
"OUI Record of Decision" or "OUI ROD" shall mean the EPA Record of Decision 

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

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

Difference or modifications to the OUI ROD as ofthe Effective Date. The OUI ROD is 

attached as Appendix A-1. 

"0U2 Record of Decision" or "0U2 ROD" shall mean the EPA Record of Decision 

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

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

Significant Difference or modifications to the 0U2 ROD as ofthe Effective Date. The 

0U2 ROD is attached as Appendix A-2. 

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

UDEQ, Midvale City, or any other entity to implement the OUI ROD or the 0U2 ROD. 

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

Paragraph 11 hereof 

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

the final plans and specifications relating to the Milestone Work. 

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

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

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

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

instrumentalities ofthe United States identified in Appendix F. which are resolving any 

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

provided in this Consent Decree. 

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

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

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

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

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

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

Operable Unit 2 (0U2). 0U2 comprises the southem approximately 180 acres ofthe Site 

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

north ofthe smelter slag deposits defines the boundary between OUI and 0U2. Included 

within 0U2 are the Silver Refinery Area, located in the southeast portion of 0U2, and the 

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

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

of 0U2 and, therefore, no additional response actions will be undertaken as to that 

-1-
portion ofthe Site under this Consent Decree. The general physical features ofthe Site 

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

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

successor or subordinate departments or agencies ofthe State. 

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

supervise and direct the implementation ofthe Milestone Work under this Consent 

Decree. 

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

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

Federal Agencies, and any natural resource tmstee. 

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

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

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

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

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

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

ofthe Remedial Action within the UPRR Property. 

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

Appendix I hereto. 

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

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

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

U.S.C. § 6903(27). 

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

defined in the RD Work Plan. 

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

depicted in Figure 3 to the RD Work Plan. 

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

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

fi'om the Midvale Slag Disbursement Special Account upon satisfactory completion of 

each Work Milestone, as provided in Article XVn. DISBURSEMENT OF SPECL\L 

ACCOUNT FUNDS ofthis Consent Decree. 

-8-
V. GENERAL PROVISIONS 

Objectives ofthe Parties. The objectives ofthe Parties in entering into this Consent 

Decree are to: 

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

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

this Consent Decree; 

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

implementation ofthe Littleson Work. The Littleson Work is to be financed by 

Littleson and funds from the Midvale Slag Disbursement Special Account in 

accordance with Article XVIL DISBURSEMENT OF SPECL\L ACCOUNT 

FUNDS; 

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

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

Decree; 

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

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

Cooperative Agreement); and 

e) provide for access fi'om, and the performance ofthe UPRR O&M work by, 

UPRR. 

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

(subject to Article XVIL DISBURSEMENT OF SPECIAL ACCOUNT FUNDS) and 

perform the Littleson Work in accordance with this Consent Decree, the OUI and 0U2 

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

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

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

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

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

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

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

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

the Hazardous Substances Superfund. 

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

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

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

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

laws as set forth in the OUI and 0U2 RODs and the RD Work Plan. The activities 

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

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

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

Permits. 

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

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

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

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

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

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

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

permits or approvals. 

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

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

the Littleson Work pursuant to Article XX. FORCE MAJEURE ofthis Consent 

Decree. 

c) This Consent Decree is not, and shall not be construed to be, a permit issued 

pursuant to any federal or state statute or regulation. 

Notice to Successors-in-Title. 

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

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

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

Littleson shall provide EPA with a certified copy ofthe recorded Notice within 

thirty (30) days of recording such Notice. 

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

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

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

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

thirty (30) days of recording such Notice. 

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

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

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

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

Work Successor shall comply with the provisions ofthis Consent Decree, 

including Paragraph 11(c), below. If EPA approves ofthe Littleson Work 

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

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

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

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

UNITED STATES and contribution protection as provided in Article XXV. 

EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION shall 

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

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

unreasonably withhold its consent to the assumption by any Littleson Work 

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

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

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

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

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

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

Article XXV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION 

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

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

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

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

Successor." 

VI. PERFORMANCE OF THE LITTLESON WORK 

10. Selection of Supervising Contractor. 

a) All aspects ofthe Milestone Work pursuant to Articles VL PERFORMANCE OF 

THE LITTLESON WORK, VIL REMEDY REVIEW, VIII. QUALITY 

ASSURANCE, SAMPLING, AND DATA ANALYSIS, and XV. 

EMERGENCY RESPONSE ofthis Consent Decree shall be under the direction 

and supervision ofthe Supervising Contractor. EPA hereby approves of 

ENTACT SERVICES, LLC as the Supervising Contractor. 

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

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

authorization to proceed fi"om EPA before the new Supervising Contractor 

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

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

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

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

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

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

MAJEURE ofthis Consent Decree. 

11. Work Plans and Deliverables. 

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

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

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

mutual agreement between EPA and Littleson without modifying this Consent 

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

Consent Decree. 

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

associated with the Work Milestones, including a submission and review 

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

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

implement the activities required under the Remedial Action Work Plan. 

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

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

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

DELIVERABLES. Unless otherwise directed by EPA, Littleson shall not 

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

Proceed from EPA. 

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

final soil cover system and associated stormwater management features will be 

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

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

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

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

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

below in Paragraph 21(c). 

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

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

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

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

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

DELIVERABLES sufficient to define the Littleson Work Successor's obligations 

and responsibilities with regard to that portion ofthe Littleson Work it seeks to 

perform and for which it seeks to assume responsibility. 

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

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

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

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

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

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

request with timely written confirmation. 

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

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

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

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

with final resolution ofthe dispute. 

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

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

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

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

unreasonably withheld. EPA's Project Coordinator shall provide written 

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

approval. 

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

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

13. Off-site Shipments. 

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

Decree and as further specified in the 0U2 ROD. Littleson shall, prior to any offSite shipment of Waste Material fi-om the Site to a waste management facility, 

provide written notification to the appropriate state environmental official in the 

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

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

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

ten (10) cubic yards. 

i) Littleson shall include in the written notification the following 

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

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

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

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

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

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

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

state. 

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

Littleson. Littleson shall provide the information required by Paragraph 

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

Waste Material is shipped. 

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

contaminants fi-om the Site (other than Category IV materials which are exempt 

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

certification that the proposed receiving facility is operating in compliance with 

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

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

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

regulation cited in the preceding sentence. 

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

Site, as provided in the 0U2 ROD. 

VII. REMEDY REVIEW 

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

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

every five years as required by Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and any 

applicable regulations. 

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

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

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

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

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

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

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

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

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

CERCLA, 42 U.S.C. § 96137(k)(2) or 9617, the public, will be provided with an 

opportunity to comment on any fiirther response actions proposed by EPA as a result of 

the review conducted pursuant to Section 121(c) of CERCLA, 42 U.S.C. § 9612(c), and 

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

VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Littleson shall take reasonable steps to ensure that the laboratories it utilizes for the 

analysis of samples taken pursuant to this Consent Decree perform all analyses according 

to accepted EPA methods. Accepted EPA methods consist of those methods which are 

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

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

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

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

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

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

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

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

Quality System which complies with ANSI/ASQC E4-1994, "Specifications and 

Guidelines for Quality Systems for Environmental Data Collection and Environmental 

Technology Programs," (American National Standard, January 5,1995), and "EPA 

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

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

laboratories accredited under the National Environmental Laboratory Accreditation 

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

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

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

procedures set forth in the QAPP approved by EPA. 

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

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

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

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

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

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

Littleson Work. 

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

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

implementation ofthis Consent Decree unless EPA agrees otherwise. 

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

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

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

statutes or regulations. 

IX. ACCESS, O&M, AND INSTITUTIONAL CONTROLS 

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

Littleson shall: 

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

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

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

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

including, but not limited to, the following activities: 

i) Monitoring the Remedial Action; 

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

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

iv) Obtaining samples; 

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

actions at or near the Site; 

vi) Assessing implementation of quality assurance and quality control 

practices as defined in the approved Quality Assurance Project Plans; 

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

Paragraph 97 ofthis Consent Decree; 

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

documents maintained or generated by Littleson or its agents, consistent 

with Article XXVL ACCESS TO INFORMATION; 

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

x) Assessing compliance with the Institutional Control Process Plans for 

OUI and 0U2; and 

xi) Deterauning whether the Site or other real property is being used in a 

manner that is prohibited or restricted, or that may need to be prohibited or 

restricted, by or pursuant to this Consent Decree. 

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

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

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

or protectiveness ofthe remedial measures to be performed pursuant to this 

Consent Decree or interfere with or adversely affect railroad operations or 

maintenance of the UPRR Property. 

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

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

installed in 0U2 until such time as redevelopment occurs on any given parcel of 

property, whereupon the maintenance ofthe final covers will be govemed by the 

Institutional Control Process Plan for 0U2. 

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

applicable to Littleson or its activities. 

22. Restrictive Covenants. 

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

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

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

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

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

their respective authorities, applicable Institutional Controls and conducting any 

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

activities listed in Paragraph 21 above. 

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

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

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

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

i) require future landowners to comply with applicable Institutional Controls 

developed under the Institutional Control Process Plans, including, 

without limitation, maintenance and repair of covers and barriers; 

compliance with landscaping, excavation, irrigation, stormwater 

management and erosion controls; compliance with imported fill 

requirements; and prohibitions against disturbance of existing 

groundwater wells or drilling new groundwater wells; 

ii) create a Property Ovmers' Association for each Subdivision ofthe Site 

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

Control Process Plans) with authority to enforce property owners' 

compliance with the Institutional Control Process Plans and applicable 

Institutional Controls and to oversee and maintain certain areas as defined 

in the Institutional Control Process Plans; 

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

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

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

enforce Institutional Controls in the form of restrictive covenants under 

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

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

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

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

role ofthe State with respect to matters of municipal govemance and land 

use. 

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

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

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

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

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

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

the Institutional Conb-ols, O&M, or UPRR O&M. 

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

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

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

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

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

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

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

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

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

negotiated between Littleson and UPRR; 

b) commencing on the Effective Date of this Consent Decree, refrain fi-om using the 

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

implementation, integrity, or protectiveness ofthe remedial measures to be 

performed pursuant to this Consent Decree; 

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

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

state regulation or mle conceming maintenance and conditions of railroad rights 

of way; and 

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

UPRR O&M in coordination with the Littleson Work. 

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

Institutional Control Process Plans for OUI and 0U2 attached hereto as Appendix J and 

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

Controls may be amended and modified fi'om time to time in the manner provided under 

the Institutional Control Process Plans without amending this Consent Decree. 

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

implement the remedy selected in the 0U2 ROD. Accordingly, Midvale City hereby 

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

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

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

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

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

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

Consent Decree and the Cooperative Agreement. 

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

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

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

and any other applicable statute or regulations. , 

X. REPORTING REQUIREMENTS 

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

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

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

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

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

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

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

progress reports shall include the following information: 

a) a description ofthe actions which have been taken toward achieving compliance 

with this Consent Decree during the previous month; 

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

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

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

Consent Decree completed and submitted during the previous month; 

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

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

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

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

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e) information regarding percentage of completion, unresolved delays encountered 

or anticipated that may affect the future schedule for implementation ofthe 

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

anticipated delays; 

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

to EPA or that have been approved by EPA; and 

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

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

29. Littleson shall notify EPA of any material change in the schedule described in the 

monthly progress report for the performance of any activity, including, but not limited to, 

data collection and implementation of work plans, no later than seven (7) days prior to 

the performance ofthe activity. 

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

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

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

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

of such event, orally notify the EPA Project Coordinator or the Altemate EPA Project 

Coordinator (in the event ofthe unavailability ofthe EPA Project Coordinator), or, in the 

event that neither the EPA Project Coordinator or Altemate EPA Project Coordinator is 

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

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

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

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

written report, signed by Littleson's Project Coordinator, summarizing the events which 

occurred and the measures taken, and to be taken, in response thereto. Within thirty (30) 

days ofthe conclusion of such an event, Littleson shall submit a report summarizing all 

actions taken in response thereto. 

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

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

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

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

provisions ofthis Consent Decree. 

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

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

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

Littleson. 

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XI. EPA APPROVAL OF DELIVERABLES 

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

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

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

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

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

35. Resubmission of Deliverables 

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

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

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

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

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

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

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

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

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

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

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

required by any non-deficient portion ofthe deliverable. 

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

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

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

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

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

material defect is not overtumed, stipulated penalties shall accme for such 

violation fi'om the date on which the initial submission was originally required. 

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

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

imposition of conditions, or other modification of a deliverable. 

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

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

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

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

portion shall be enforceable under this Consent Decree. 

x n. PROJECT COORDINATORS 

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

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

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

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

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

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

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

ofthe Littleson Work. Littleson's Project Coordinator shall not be an attomey for 

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

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

of performance, of daily operations during remedial activities. 

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

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

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

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

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

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

Contingency Plan, to halt any Littleson Work required by this Consent Decree and to take 

any necessary response action when he or she determines that conditions at the Site 

constitute an emergency situation or may present an immediate threat to public health or 

welfare or the environment due to release or threatened release of Waste Material. 

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

telephone call), at a minimum, monthly. 

XIII. ASSURANCE OF ABILITY TO COMPLETE LITTLESON WORK 

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

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

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

amount available to Littleson pursuant to Article XVII. DISBURSEMENT OF 

SPECL\L ACCOUNT FUNDS and the costs ofthe Milestone Work as estimated by 

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

as the document attached hereto as Appendix G. 

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

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

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

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

forms: 

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

completion ofthe Milestone Work naming EPA as an additional insured; 

b) One or more irrevocable letters of credit; 

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c) A tmst fund; 

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

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

business relationship with the Littleson Work Successor; or 

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

40 C.F.R. Part 264.143(f). 

42. Ifany Littleson Work Successor seeks to demonstrate the ability to complete the 

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

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

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

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

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

resubmit annually on the anniversary ofthe Effective Date swom statements conveying 

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

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

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

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

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

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

Littleson of any activities required under this Consent Decree. 

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

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

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

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

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

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

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

administrative or judicial decision resolving the dispute. 

XIV. COMPLETION OF MILESTONE WORK 

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

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

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

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

Work Milestone. 

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

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

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

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

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

Working Days notice before a field inspection. Reasonable accommodations and 

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

Milestone activities. 

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

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

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

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

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

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

purposes, including Article XVB. DISBURSEMENT OF SPECIAL ACCOUNT 

FUNDS. 

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

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

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

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

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

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

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

EPA APPROVAL OF DELIVERABLES. Littleson shall perform all activities described 

in the notice in accordance with the specifications and schedules established pursuant to 

this Paragraph, subject to its right to invoke the dispute resolution procedures set forth in 

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

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

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

certify that the Work Milestone has been completed. 

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

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

respect to any other Work Milestone. 

49. Completion of Constmction Work. 

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

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

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

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

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

Certification of Constmction Work Completion, along with a written Remedial 

Action Report by a registered professional engineer stating that the Constmction 

Work has been completed in fiill satisfaction ofthe requirements ofthis Consent 

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

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

Coordinator: 

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

certify that the information contained in or accompanying this 

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

are significant penalties for knowingly submitting false 

information, including the possibility of fine and imprisonment." 

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

the Constmction Work has been completed in accordance with this Consent 

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

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

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

ofthe Constmction Work has not been completed in accordance with this Consent 

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

undertaken by Littleson pursuant to this Consent Decree to complete the 

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

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

are consistent with the scope ofthe remedy selected in the OUI ROD or 0U2 

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

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

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

for approval pursuant to Article XI. EPA APPROVAL OF DELfVERABLES. 

Littleson shall perform all activities described in the notice in accordance with the 

specifications and schedules established therein, subject to its right to invoke the 

dispute resolution procedures set forth in Article XXI. DISPUTE 

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

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

Constmction Work as provided in this paragraph. 

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

of completion of Work Milestones 3,11 and 3.12 (through the applicable Inspection 

Checklists), EPA shall issue a vmtten certification that all ofthe Milestone Work has 

been completed in accordance with this Consent Decree. 

XV. EMERGENCY RESPONSE 

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

which causes or threatens a release of Waste Material from the Site that constitutes an 

emergency situation or may present an immediate threat to public health or welfare or the 

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

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

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

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unavailable, EPA's Altemate Project Coordinator. If neither ofthese persons is available, 

Littleson shall notify the EPA Region 8 hotline at 1-800-227-8914. Littleson shall take 

such actions in consultation with EPA's Project Coordinator or other available authorized 

EPA officer and in accordance with all applicable provisions ofthe Health and Safety 

Plans, the Contingency Plans, and any oflier applicable plans or documents developed 

pursuant to the RD Work Plan. 

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

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

health or the environment or to prevent, abate, respond to, or minimize an actual or 

threatened release of Waste Material on, at, or firom the Site, or b) to direct or order such 

action, or seek an order fi-om the Court, to protect human health or the environment or to 

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

on, at, or fi-om the Site, subject to Article XXIII. COVENANTS BY THE UNITED 

STATES. 

XVI. PAYMENTS FOR RESPONSE COSTS 

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

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

Development Cash Flows fi-om land sale activities at the Site each calendar year that 

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

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

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

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

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

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

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

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

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

ordinary if Littleson reports or will report such Development Business Expenses 

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

Development Business Expense qualifies as a current deduction under the Intemal 

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

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

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

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

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

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

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

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

ofeach annual net cash flow firom land sales as of January 1,2004 to December 

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

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

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

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

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

cash flow statements prepared in accordance with the Financial Accounting 

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

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

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

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

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

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

accordance with the terms and conditions ofthis Paragraph 53. Statements will 

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

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

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

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

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

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

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

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

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

proxy for cash consideration to calculate Net Development Cash Flows. 

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

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

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

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

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

the Hazardous Substances Superfiind. 

XVIL DISBURSEMENT OF SPECIAL ACCOUNT FUNDS 

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

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

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

Hazardous Substance Superfund and shall transfer $16,155,000 fi'om the Midvale Slag 

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

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

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

Midvale Slag Disbursement Special Account available for disbursement to Littleson to 

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

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

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

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

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

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

provided more fully in the RD Work Plan. 

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

Special Account. 

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

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

lump sum amount Littleson will be reimbursed after satisfactory completion of 

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

Payment Schedule do not include any costs relating to development enhancements 

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

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

executed Inspection Checklist as provided in Article XfV. COMPLETION OF 

MILESTONE WORK. 

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

provided in Article XFV. COMPLETION OF MILESTONE WORK, Littleson 

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

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

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

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

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

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

Supervising Contractor's Chief Financial Officer or an Independent Certified 

Public Accountant: 

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

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

Littleson Work performed pursuant to this Consent Decree as to 

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

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

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

aware that there are significant penalties for knowingly submitting 

false information, including the possibility of fine and 

imprisonment." 

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

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

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

Disbursement Requests accepted for processing during any calendar quarter as 

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

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

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

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

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

reasonable opportunity to cure the deficiency by submitting a revised 

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

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

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

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

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

any Disbursement Request or any recalculation under this Paragraph pursuant to 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

57. Termination of Disbursements fi-om the Midvale Slag Disbursement Special Account. 

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

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

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

intention of claiming costs excluded fi-om disbursement under Paragraph 56; (b) 

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

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

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

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

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

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

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

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

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

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

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

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

Special Account disbursements under Article XXI. DISPUTE RESOLUTION. 

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

termination of disbursements from the Midvale Slag Disbursement Special Account 

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

Disbursement Special Account for activities specifically related to the reason for 

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

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

Littleson for those amounts already disbursed from the Midvale Slag Disbursement 

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

amount covering the period fi'om the date of disbursement ofthe fUnds by EPA to the 

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

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

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

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

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

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

the check(s) to: 

Regular mail: 

Mellon Bank 

Attn: Superfund Accounting 

Lockbox 360859 

Pittsburgh, PA 15251-6859 

Federal Express, Airborne, etc.: 

US EPA 360859 

Mellon Client Service Center Room 670 

500 Ross Street 

Pittsburgh, PA 15262-0001 

Wire Transfers: 

Wire transfers should be sent directly to the Federal Reserve Bank in New 

York City with the following information: 

ABA = 021030004 

TREAS NYC/CTR 

BNF=/AC-68011008 

At the time of payment, Littleson shall send notice that payment has been made to the 

United States, to EPA, and to the Regional Financial Management Officer, in accordance 

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with Article XXVIff. NOTICES AND SUBMISSIONS. Upon receipt of payment, EPA 

may deposit all or any portion thereof in the Midvale Slag Special Account or the 

Hazardous Substance Superfund. The determination of where to deposit or how to use the 

funds shall not be subject to challenge by Littleson pursuant to the dispute resolution 

provisions ofthis Consent Decree or in any other fomm. Littleson may dispute EPA's 

determination as to recapture of funds pursuant to Article XXI. DISPUTE 

RESOLUTION. 

XVIII. REIMBURSEMENT OF RESPONSE COSTS 

59. As soon as reasonably practicable after the Effective Date, and consistent with 

subparagraph 59(b), the United States, on behalf of the Settling Federal Agencies, shall: 

a) Pay to the EPA Hazardous Substance Superfund $2,204,946, in reimbursement of 

Past and Future Response Costs. The total amount to be paid by Settling Federal 

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

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

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

the Hazardous Substances Superfund. Such payment shall be made in the same 

manner as specified in Paragraph 58 above. 

b) If the payment to the EPA Hazardous Substances Superfund required by this 

subparagraph is not made as soon as reasonably practicable, the appropriate EPA 

Assistant Regional Administrator for Enforcement, Compliance and 

Environmental Justice may raise any issues relating to payment to the appropriate 

DOJ Assistant Section Chief for the Environmental Defense Section. In any 

event, if this payment is not made within one hundred and twenty (120) days after 

the Effective Date, EPA and DOJ have agreed to resolve the issue within thirty 

(30) days in accordance with that certain letter agreement dated December 28, 

1998. 

60. In the event that payments required by Paragraph 59 are not made within one himdred 

and twenty (120) days ofthe Effective Date, interest on the unpaid balance shall be paid 

at the rate established pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), 

commencing on the Effective Date and accming through the date ofthe payment. 

61. The Parties to this Consent Decree recognize and acknowledge that the payment 

obligations ofthe Settling Federal Agencies under this Consent Decree can only be paid 

fi'om appropriated funds legally available for such purpose. Nothing in this Consent 

Decree shall be interpreted or constmed as a commitment or requirement that any 

Setthng Federal Agency obligate or pay funds in contravention ofthe Anti-Deficiency 

Act,31 U.S.C. § 1341, or any other applicable provision of law. 

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XIX. INDEMNIFICATION AND INSURANCE 

62, Littleson's Indemnification ofthe United States. 

a) The United States does not assume any liability by entering into this agreement or 

by virtue of any designation of Littleson as EPA's authorized representative under 

Section 104(e) of CERCLA. Littleson shall indemnify, save and hold harmless the 

United States, its officials, agents, employees, contractors, subcontractors, or 

representatives for or fi-om any and all claims or causes of action arising from, or 

on account of, negligent or other wrongful acts or omissions of Littleson, its 

officers, directors, employees, agents, contractors, subcontractors, and any 

persons acting on its behalf or under its control, in carrying out activities pursuant 

to this Consent Decree, including, but not limited to, any claims arising fi-om any 

designation of Littleson as EPA's authorized representative under Section 104(e) 

of CERCLA, 42 U.S.C. § 9604(e). Further, Littleson agrees to pay the United 

States all costs it incurs including, but not limited to, attomeys 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 v^ongflil acts or omissions 

of Littleson, its officers, directors, employees, agents, contractors, subcontractors, 

and any persons acting on its behalf or under its control, in carrying out activities 

pursuant to this Consent Decree. The United States shall not be held out as a 

party to any contract entered into by or on behalf of Littleson in carrying out 

activities pursuant to this Consent Decree. Neither Littleson nor any such 

contractor shall be considered an agent ofthe United States. 

b) The United States shall give Littleson written notice of any claim for which the 

United States plans to seek indemnification pursuant to this Paragraph and shall 

consult with Littleson prior to settling such claim. 

63, Littleson waives all claims against the United States for damages or reimbursement or for 

set-off of any payments made or to be made to the United States, arising fi-om or on 

account of any contract, agreement, or arrangement between Littleson and any person for 

performance of Littleson Work on or relating to the Site, including, but not limited to, 

claims on account of constmction delays. In addition, Littleson shall indemnify and hold 

harmless the United States with respect to any and all claims for damages or 

reimbursement arising fi-om or on account of any contract, agreement, or arrangement 

between Littleson and any person for performance of Littleson Work on or relating to the 

Site, including, but not limited to, claims on account of constmction delays. 

64, No later than fifteen (15) days before commencing any on-site Littleson Work, Littleson 

or the Supervising Contractor shall secure, and shall maintain until EPA's Certification of 

Completion of Milestone Work pursuant to Paragraph 50, comprehensive general liabilify 

insurance with general aggregate limits of $2 million dollars and an occurrence limit of 

$1 million, and automobile liability insurance with limits of $1 million dollars, combined 

single limit, naming the United States as an additional insured. In addition, for the 

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duration ofthis Consent Decree, Littleson shall satisfy, or shall ensure that its contractors 

or subcontractors satisfy, all applicable laws and regulations regarding the provision of 

worker's compensation insurance for all persons performing the Littleson Work on behalf 

of Littleson in furtherance ofthis Consent Decree. Prior to commencement ofthe 

Littleson Work under this Consent Decree, Littleson shall provide to EPA certificates of 

such insurance and a copy ofeach insurance policy. Littleson shall resubmit such 

certificates and copies of policies each year on the anniversary ofthe Effective Date. If 

Littleson demonstrates by evidence satisfactory to EPA that any contractor or 

subcontractor maintains insurance equivalent to that described above, or insurance 

covering the same risks but in a lesser amount, then, with respect to that contractor or 

subcontractor, Littleson need provide only that portion ofthe instirance described above 

which is not maintained by the contractor or subcontractor. 

XX. FORCE MAJEURE 

65. "Force majeure," for purposes ofthis Consent Decree, is defined as any event arising 

from causes beyond the control of Littleson, of any entity controlled by Littleson, or of 

Littleson's contractors, that delays or prevents the performance of any obligation under 

this Consent Decree despite Littleson's best efforts to fulfill the obligation. The 

requirement that Littleson exercise "best efforts to fulfill the obligation" includes using 

best efforts to anticipate any potential force majeure event and best efforts to address the 

effects of any potential force majeure event (1) as it is occurring and (2) following the 

potential force majeure event, such that the delay is minimized to the greatest extent 

possible. "Force Majeure" does not include financial inability to complete the Littleson 

Work. 

66. Ifany event occurs or has occurred that may delay the performance of any obligation 

under this Consent Decree, whether or not caused by a force majeure event, Littleson 

shall notify orally EPA's Project Coordinator or, in his or her absence, EPA's Altemate 

Project Coordinator or, in the event both of EPA's designated representatives are 

unavailable, the Assistant Regional Adminish-ator, Office of Ecosystems Protection and 

Remediation, EPA Region 8 ("ARA"), within three (3) Working Days of when Littleson 

first knew that the event might cause a delay. Within twenty (20) days thereafter, 

Littleson shall provide in writing to EPA the following information: (a) a description of 

the reasons for the delay; (b) the anticipated duration ofthe delay; (c) a description of all 

actions taken or to be taken to prevent or minimize the delay; (d) a schedule for 

implementation of any measures to be taken to prevent or mitigate the delay or the effect 

ofthe delay; (e) a description of Littleson's rationale for attributing such delay to a force 

majeure event if it intends to assert such a claim; and (f) a statement as to whether, in the 

opinion of Littleson, such event may cause or contribute to an endangerment to public 

health, welfare or the environment. Littleson shall include with any notice all available 

documentation supporting its claim that the delay was attributable to a force majeure. 

Failure to comply with the above requirements shall preclude Littleson fi-om asserting 

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any claim of force majeure for that event for the period of time of such failure to comply, 

and for any additional delay caused by such failure. 

67. If EPA agrees that the delay or anticipated delay is attributable to a force majeure event, 

the time for performance ofthe obligations under this Consent Decree that are affected by 

the force majeure event will be extended by EPA for such time as is necessary to 

complete those obligations. An extension ofthe time for performance ofthe obligations 

affected by the force majeure event shall not, of itself, extend the time for performance of 

any other obligation. If EPA does not agree that the delay or anticipated delay has been or 

will be caused by a force majeure event, EPA will notify Littleson in writing of its 

decision. If EPA agrees that the delay is attributable to a force majeure event, EPA will 

notify Littleson in writing ofthe length ofthe extension, ifany, for performance ofthe 

obligations affected by the force majeure event. 

68. If Littleson elects to invoke the dispute resolution procedures set forth in Article XXI. 

DISPUTE RESOLUTION, it shall do so no later than fifteen (15) days after receipt of 

EPA's notice. In any such proceeding, Littleson shall have the burden of demonstrating 

by a preponderance ofthe evidence that the delay or anticipated delay has been or will be 

caused by a force majeure event, that the duration ofthe delay or the extension sought 

was or will be warranted under the circumstances, that best efforts were exercised to 

avoid and mitigate the effects ofthe delay, and that Littleson complied with the 

requirements ofthis Article. If Littleson carries this burden, the delay at issue shall be 

deemed not to be a violation by Littleson ofthe affected obligation ofthis Consent 

Decree identified to EPA and the Court. 

XXI. DISPUTE RESOLUTION 

69. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution 

procedures ofthis Article shall be the exclusive mechanism to resolve disputes arising 

under or with respect to this Consent Decree. However, the procedures set forth in this 

Article shall not apply to actions by the United States to enforce obligations of any ofthe 

Settling Defendants that have not been disputed in accordance with this Article. 

70. Any dispute which arises under or with respect to this Consent Decree shall in the first 

instance be the subject of informal negotiations between EPA and the Settling Defendant 

raising the dispute (the "Disputing Party"). The period for informal negotiations shall not 

exceed twenty (20) days fi-om the time the dispute arises, unless it is extended by written 

agreement ofthe parties to the dispute. The dispute shall be considered to have arisen 

when one party sends the other parties a written Notice of Dispute. 

71. Statements of Position. 

a) In the event that the parties cannot resolve a dispute by informal negotiations 

under the preceding Paragraph, then the position advanced by EPA shall be 

considered binding unless, within twenty (20) days after the conclusion ofthe 

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informal negotiation period, the Disputing Party invokes the formal dispute 

resolution procedures ofthis Article by serving on the United States a written 

Statement of Position on the matter in dispute, including, but not limited to, 

factual data, analysis or opinion supporting that position, and supporting 

documentation relied upon by the Disputing Party. The Statement of Position 

shall specify the Disputing Party's position as to whether formal dispute resolution 

should proceed under Paragraph 72 or Paragraph 73. 

b) Within ten (10) days after receipt of the Disputing Party's Statement of Position, 

EPA will serve on the Disputing Party its Statement of Position, including, but not 

limited to, any factual data, analysis, or opinion supporting that position and all 

supporting documentation relied upon by EPA. EPA's Statement of Position shall 

include a statement as to whether formal dispute resolution should proceed under 

Paragraph 72 or Paragraph 73. Within five (5) Working Days after receipt of 

EPA's Statement of Position, the Disputing Party may submit a Reply. 

c) If there is disagreement between EPA and Disputing Party as to whether dispute 

resolution should proceed under Paragraph 72 or Paragraph 73, the parties to the 

dispute shall follow the procedures set forth in the paragraph determined by EPA 

to be applicable, unless the Disputing Party ultimately appeals to the Court to 

resolve the dispute, in which case the Court shall determine which paragraph is 

applicable, in accordance with the standards of applicability set forth in Paragraph 

72 and Paragraph 73. 

72. Formal dispute resolution for disputes pertaining to the selection or adequacy of any 

response action and all other disputes that are accorded review on the administrative 

record under applicable principles of administrative law shall be conducted pursuant to 

the procedures set forth in this Paragraph. For purposes ofthis Paragraph, the adequacy 

of any response action includes, without limitation: (1) the adequacy or appropriateness 

of plans, procedures to implement plans, or any other items requiring approval by EPA 

under this Consent Decree; and (2) the adequacy ofthe performance of response actions 

taken pursuant to this Consent Decree. Nothing in this Consent Decree shall be 

constmed to allow any dispute by any Disputing Party regarding the validity of either the 

OUI or 0U2 ROD provisions, except that the Disputing Party retains its right to 

challenge any Explanation of Significant Difference or modification to either ROD that is 

not in effect as ofthe Effective Date. 

a) An administrative record ofthe dispute shall be maintained by EPA and shall 

contain all statements of position, including supporting documentation, submitted 

pursuant to this Article. Where appropriate, EPA may allow submission of 

supplemental statements of position by the parties to the dispute. 

b) The ARA, Office of Ecosystems Protection and Remediation will issue a final 

administrative decision resolving the dispute based on the administrative record 

described in Paragraph 72(a). This decision shall be binding upon the Disputing 

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Party, subject only to the right to seek judicial review pursuant to Paragraph 72(c) 

and (d). 

c) Any administrative decision made by EPA pursuant to Paragraph 72(b) shall be 

reviewable by this Court, provided that a motion for judicial review ofthe 

decision is filed by the Disputing Party with the Court and served on all Parties 

within ten (10) Working Days of receipt of EPA's decision. The motion shall 

include a description ofthe matter in dispute, the efforts made by the parties to 

resolve it, the relief requested, and the schedule, ifany, within which the dispute 

must be resolved to ensure orderly implementation ofthis Consent Decree. The 

United States may file a response to the Disputing Party's motion within twenty 

(20) days. 

d) In proceedings on any dispute govemed by this Paragraph, the Disputing Party 

shall have the burden of demonstrating that the decision ofthe ARA is arbitrary 

and capricious or otherwise not in accordance with law. Judicial review of EPA's 

decision shall be on the administrative record compiled pursuant to Paragraph 

72(a). 

73. Formal dispute resolution for disputes that neither pertain to the selection or adequacy of 

any response action nor are otherwise accorded review on the administrative record under 

applicable principles of administrative law, shall be govemed by this Paragraph. 

a) Following receipt of the Disputing Party's Statement of Position submitted 

pursuant to Paragraph 71, the ARA will issue a final decision resolving the 

dispute. The ARA's decision shall be binding on the Disputing Party unless, 

within ten (10) Working Days of receipt ofthe decision, the Disputing Party files 

with the Court and serves on the parties a motion for judicial review ofthe 

decision setting forth the matter in dispute, the efforts made by the parties to 

resolve it, the relief requested, and the schedule, ifany, within which the dispute 

must be resolved to ensure orderly implementation of the Consent Decree. The 

United States may file a response to the Disputing Party's motion in accordance 

with the mles ofthis Court, 

b) Judicial review of any dispute govemed by this Paragraph shall be govemed by 

applicable principles of law. 

74. The invocation of formal dispute resolution procedures under this Article shall not 

extend, postpone or affect in any way any obligation of any Party under this Consent 

Decree, not directly in dispute, unless EPA agrees or the Court orders otherwise. 

Stipulated penalties with respect to the disputed matter shall continue to accme but 

payment shall be stayed pending resolution ofthe dispute as provided in Paragraph 82. 

Notwithstanding the stay of payment, stipulated penalties shall accme from the first day 

of noncompliance with any applicable provision ofthis Consent Decree. In the event that 

the Disputing Party does not prevail on the disputed issue, stipulated penalties (as 

-36-
applicable) shall be assessed and paid as provided in Article XXII. STIPULATED 

PENALTIES. 

XXII. STIPULATED PENALTIES 

75. Littleson shall be liable for stipulated penalties in the amounts set forth in this Article to 

the United States for failure to comply with the requirements ofthis Consent Decree 

specified below, unless excused under Article XX. FORCE MAJEURE. "Compliance" 

by Littleson shall include completion ofthe activities under this Consent Decree or any 

Work Plan or other plan approved under this Consent Decree identified below in 

accordance with all applicable requirements of law, this Consent Decree, the RD Work 

Plan, and any plans or other documents approved by EPA pursuant to this Consent 

Decree and within the specified time schedules established by and approved under this 

Consent Decree. 

76. Stipulated Penalty Amounts - Littleson Work. Unless EPA, in its sole discretion, chooses 

to waive stipulated penalties, the following stipulated penalties shall accme per violation 

per day for any material noncompliance with the requirements ofthis Consent Decree: 

Penalty Per Violation Per Day Period of Noncompliance 

$250 1" through 14'*'day 

$500 15"'through 30"" day 

$ 1000 31" day and beyond 

77. Stipulated Penalty Amounts - Reports. Unless EPA, in its sole discretion, chooses to 

waive stipulated penalties, the following stipulated penalties shall accme per violation per 

day for failure to submit timely or adequate reports required by the Statement of Work: 

Penalty Per Violation Per Day Period of Noncompliance 

$125 1" through 14* day 

$250 . is"" through 30"'day 

$ 500 31" day and beyond 

78. All penalties shall begin to accme on the day after the complete performance is due or the 

day a violation occurs and shall continue to accme through the final day ofthe correction 

ofthe noncompliance or completion ofthe activity. However, stipulated penalties shall 

not accme: (1) with respect to a deficient deliverable as provided under XI. EPA 

APPROVAL OF DELIVERABLES; (2) with respect to a decision by the ARA under 

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Paragraph 72(b) or 73(a) of Article XXL DISPUTE RESOLUTION, during the period, 

ifany, beginning on the day that Littleson's Statement of Position is received by EPA 

until the date that the ARA issues a final decision regarding such dispute; or (3) with 

respect to judicial review by this Court of any dispute under Article XXI. DISPUTE 

RESOLUTION, during the period, ifany, beginning on the day after the Court's receipt 

ofthe final submission regarding the dispute until the date that the Court issues a final 

decision regarding such dispute. Nothing herein shall prevent the simultaneous accmal 

of separate penalties for separate violations ofthis Consent Decree. 

79. Following EPA's determination that Littleson has failed to comply with a requirement of 

this Consent Decree, EPA shall give Littleson written notification ofthe same and 

describe the noncompliance. EPA may send Littleson a written demand for the payment 

ofthe penalties. However, penalties shall accme as provided in the preceding paragraph 

regardless of whether EPA has notified Littleson of a violation. 

80. All penalties accming under this Article shall be due and payable to the United States 

within thirty (30) days of Littleson's receipt fi-om EPA of a written demand for payment 

ofthe penalties, unless Littleson invokes the Dispute Resolution procedures under XXI. 

DISPUTE RESOLUTION. All payments to the United States under this Article shall be 

paid by certified or cashier's check(s) made payable to "EPA Hazardous Substances 

Superfiind," shall be mailed to Mellon Bank, Attn: Superfiind Accounting, Lockbox 

360859, Pittsburgh, PA 15251-6859, shall indicate that the payment is for stipulated 

penalties, and shall reference the EPA Region and Site/Spill ID #0871, the DOJ Case 

Number 90-11-3-1194/1, and the name and address ofthe party making payment. Copies 

of check(s) paid pursuant to this Article, and any accompanying transmittal letter(s), shall 

be sent to the United States as provided in Article XXVI (Notices and Submissions). 

81. The payment of penalties shall not alter in any way Littleson's obligation to complete the 

performance ofthe Littleson Work required under this Consent Decree. 

82. Penalties shall continue to accme as provided in this Article during any dispute resolution 

period, but need not be paid until the following: 

a) If the dispute is resolved by agreement or by a decision of EPA that is not 

appealed to this Court, accmed penalties determined to be owing shall be paid to 

EPA within fifteen (15) days ofthe agreement or the receipt of EPA's decision or 

order; 

b) If the dispute is appealed to this Court and the United Stales prevails in whole or 

in part, Littleson shall pay all accmed penalties determined by the Court to be 

owed to EPA within sixty (60) days of receipt ofthe Court's decision or order, 

except as provided in Subparagraph c below; 

c) If the District Court's decision is appealed by any Party, Littleson shall pay all 

accmed penalties determined by the District Court to be owing to the United 

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States into an interest-bearing escrow account within sixty (60) days of receipt of 

the Court's decision or order. Penalties shall be paid into this account as they 

continue to accme, at least every sixty (60) days. Within fifteen (15) days of 

receipt ofthe final appellate court decision, the escrow agent shall pay the balance 

ofthe account to EPA or to Littleson to the.extent that they prevail. 

83. If Littleson fails to pay stipulated penalties when due, the United States may institute 

proceedings to collect the penalties, as well as Interest. Littleson shall pay Interest on the 

unpaid balance, which shall begin to accme on the date of demand made pursuant to 

Paragraph 79. 

84. Nothing in this Consent Decree shall be constmed as prohibiting, altering, or in any way 

limiting the ability ofthe United States to seek any other remedies or sanctions available 

by virtue of Littleson's violation ofthis Decree or ofthe statutes and regulations upon 

which it is based, including, but not limited to, penalties pursuant to Section 122(1) of 

CERCLA, provided, however, that the United States shall not seek civil penalties 

piu-suant to Section 122(1) of CERCLA, 42 U.S.C. § 9622(1) for any violation for which a 

stipulated penalty is provided herein, except in the case of a willfiil violation ofthe 

Consent Decree. 

85. Notwithstanding any other provision ofthis Article, the United States may, in its 

unreviewable discretion, waive any portion of stipulated penalties that have accmed 

pursuant to this Consent Decree. 

XXIII. COVENANTS BY THE UNITED STATES 

86. Littleson. In consideration of Litfleson's performance ofthe Littleson Work under the 

terms ofthis Consent Decree, and except as otherwise specifically provided for in 

Paragraphs 93,94, and 95 ofthis Article, the United States (i) hereby covenants not to 

sue or take administrative action, or to otherwise assert any claim against Littleson or its 

present or former officers or directors, arising from or relating to the Site, Past Response 

Costs, Future Response Costs, or the Remedial Action; and (ii) hereby releases and 

waives any lien it may have with respect to the Site now and in the future under Section 

I07(r) of CERCLA, 42 U.S.C. § 9607(r), for costs incurred or to be incurred by EPA in 

responding to the release or threat of a release of hazardous substances that were disposed 

of at the Site prior to the Effective Date. These covenants not to sue and releases are 

conditioned upon the satisfactory performance by Littleson of its obligations under this 

Consent Decree but shall take effect immediately upon the Effective Date. 

87. Release of Lien. Within thirty (30) days ofthe Effective Date, the United States shall 

cause to be recorded a Release of Lien in substantially the same form as the document 

attached hereto as Appendix H. 

88. Littleson's Successors and Assigns. The covenants, releases, and agreements set forth in 

this Article shall inure to the benefit of Littleson (including its present and former officers 

-39-
and directors) and its successors and assigns, and shall be binding upon and enforceable 

against the United States. 

89. Bona Fide Purchasers. Without in any way limiting the applicability of Paragraphs 86 or 

88, EPA further covenants not to assert any claims and to release and waive all claims or 

causes of action that it may have for all matters relating to the Site against any Bona Fide 

Purchaser that acquires an ownership or other interest in any real property located within 

the Site after certification of constmction completion. For purposes ofthis Consent 

Decree, a person or entity shall be considered a Bona Fide Purchaser meeting the 

statutory definition of "bona fide prospective purchaser" set forth in Section 101(40) of 

CERCLA, 42 U.S.C. § 9601 (40) if: 

a) The person or entity acquires an interest in real property situated within the 

boundaries ofthe OUI portion ofthe Site; or 

b) The person or entity acquires an interest in real property situated within the 

boundaries ofthe 0U2 portion ofthe Site after the relevant Certification(s) of 

Constmction Work Completion (pursuant to Paragraph 48) have been obtained for 

the applicable property; or after modified Work Milestones for the relevant 

property, established in accordance with Section 2.4.8 ofthe RD Work Plan, have 

been completed. 

Provided, however, that no person or entity shall be considered a Bona Fide Purchaser if 

such person or entity: 

c) Is responsible for the release of any reportable quantity of hazardous substances at 

the Site; or 

d) Fails to comply with the substantive requirements of Article IX. ACCESS, 

O&M, AND INSTITUTIONAL CONTROLS (or any covenant or obligation 

created pursuant thereto) or fails to comply with any request for information or 

administrative subpoena issued by EPA related to the Site. 

90. Settling Federal Agencies. Inconsiderationofthepayments that will be made by the 

Settling Federal Agencies under the terms ofthe Consent Decree, and except as 

specifically provided in Paragraphs 93, 94, and 95 ofthis Article, EPA covenants not to 

take administrative action against the Settling Federal Agencies arising from or relating 

to the Site, Past Response Costs, Future Response Costs, or the Remedial Action. These 

covenants and releases are conditioned upon the satisfactory performance by the Settling 

Federal Agencies of their obligations under this Consent Decree, including the payments 

required by Paragraph 59, and shall take effect immediately as ofthe Effective Date. 

EPA's covenant extends only to the Settling Federal Agencies and does not extend to any 

other person. 

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91. UPRR. In consideration of UPRR's obligations under the terms ofthis Consent Decree 

and the obligations set forth in the Midvale Slag Superfund Site Settlement and Release 

Agreement by and between Littleson and UPRR, and except as otherwise specifically 

provided in Paragraphs 93, 94, and 95 ofthis Article, the United States hereby covenants 

not to sue or take administrative action, or to otherwise assert any claim against UPRR 

arising from or relating to the Site, Past Response Costs, Future Response Costs, or the 

Remedial Action. This covenant is conditioned upon the satisfactory performance by 

UPRR ofthe UPRR O&M, but shall take effect immediately upon the Effective Date of 

this Consent Decree. 

92. Midvale City. In consideration of Midvale City's performance of its obligations under 

the terms ofthis Consent Decree, and except as otherwise specifically provided for in 

Paragraph 93 ofthis Article, the United States hereby covenants not to sue or take 

administrative action, or to otherwise assert any claim against Midvale City arising from 

or relating to the Site, Past Response Costs, Future Response Costs, or the Remedial 

Action. This covenant is conditioned upon Midvale City's satisfactory implementation or 

enforcement ofthe Institutional Controls, but shall take effect immediately upon the 

Effective Date ofthis Consent Decree. 

93. General Reservations of Rights. The United States reserves, and this Consent Decree is 

without prejudice to, all rights against Settling Defendants and Settling Federal Agencies 

with respect to all matters not expressly included within the United States' covenants. 

Notwithstanding any other provision ofthis Consent Decree, the United States reserves 

all rights against Littleson, Midvale City, and UPRR, and EPA reserves, and this Consent 

Decree is without prejudice to, all rights against the Settling Federal Agencies, with 

respect to: 

a) claims based on a failure by Settling Defendants or the Settling Federal Agencies 

to meet and perform their respective responsibilities as required pursuant to this 

Consent Decree; provided however, that each Settling Defendant and Setting 

Federal Agency shall be responsible to perform only the work or perform only 

those obligations required herein and none ofthe Settling Defendants or Settling 

Federal Agencies shall be responsible to perform the work or fulfill the 

obligations required herein to be performed by any other Settling Defendant or 

Settling Federal Agency; 

b) liability arising from the past, present, or fiiture disposal, release, or threat of 

release of Waste Material outside ofthe Site; 

c) liability based upon the transportation, treatment, storage, or disposal, or the 

arrangement for the transportation, treatment, storage, or disposal by a Settling 

Defendant of Waste Material at or in connection with the Site, other than as 

provided in the OUI ROD and 0U2 ROD, the Littleson Work, or otherwise 

ordered by EPA, after signature of this Consent Decree by Settling Defendants; 

-41-
d) liability for damages for injury to, destmction of, or loss of natural resources 

under federal tmsteeship; 

e) criminal liability; and 

f) liability for violations of federal or state law which occur during or after 

implementation ofthe Remedial Action. 

94. United States' Pre-Certification Reservations. Notwithstanding any other provision of 

this Consent Decree, the United States reserves, and this Consent Decree is without 

prejudice to, the right to institute proceedings in this action or in a new action, or to issue 

an administrative order seeking to compel Littleson or UPRR, and EPA reserves the right 

to issue an administrative order seeking to compel the Settling Federal Agencies, (i) to 

perform further response actions relating to 0U2, or (ii) to reimburse the United States 

for additional costs of response if, prior to issuance of a Certification of Constmction 

Work Completion as to 0U2, pursuant to Paragraph 49: 

a) conditions at 0U2, previously unknown to EPA, are discovered, or 

b) information, previously unknown to EPA, is received, in whole or in part; 

and, EPA determines that these previously unknown conditions of informafion together 

with any other relevant information indicate that the Remedial Action as pertaining to 

0U2 is not protective of human health or the environment. 

For purposes ofthis Paragraph 94, the conditions and information known to EPA shall 

mean the conditions and information known to EPA as ofthe date that this Consent 

Decree is lodged with the United States District Court, or reasonably foreseeable at that 

time, as set forth in the 0U2 ROD or otherwise in the administrative record relating to 

the Site, and including specifically the information and conditions discussed in Paragraph 

96, below. 

95. United States' Post-Certification Reservations. Notwithstanding any other provision of 

this Consent Decree, the United States reserves, and this Consent Decree is without 

prejudice to, the right to institute proceedings in this action or in a new action, or to issue 

an administrative order seeking to compel Littleson or UPRR, and EPA reserves the right 

to issue an administrative order seeking to compel the Settling Federal Agencies, (i) to 

perform further response actions relating to the Site, or (ii) to reimburse the United States 

for additional costs of response if, as to the 0U2 portion ofthe Site subsequent to 

issuance ofthe Certification of Constmcfion Work Completion pursuant to Paragraph 

49, or as to the OUI portion ofthe Site: 

a) conditions at the Site, previously unknown to EPA, are discovered, or 

b) information, previously unlcnown to EPA, is received, in whole or in part; and 

-42-
EPA determines that these previously unknown conditions or this information together 

with other relevant information indicate that the Remedial Action is not protective of 

human health or the environment. 

For purposes ofthis Paragraph 95 as pertaining to 0U2, the conditions and information 

known to EPA shall mean the conditions and information known to EPA as ofthe date of 

the Certification of Completion of Constmction, or reasonably foreseeable at that time, as 

set forth in the administrative record supporting the 0U2 ROD, the post-OU2 ROD 

administrative record, or in any information received by EPA pursuant to the 

requirements ofthis Consent Decree prior to Certification of Completion of Constmction, 

and fiirther including specifically the information and conditions discussed in Paragraph 

96, below. 

For purposes ofthis Paragraph 95 as pertaining to OUI, the conditions and information 

known to EPA shall mean the conditions and information known to EPA as ofthe date of 

the Certification of Completion of Constmction, or reasonably foreseeable at that time, 

and including specifically the infonnation and conditions discussed in Paragraph 96, 

below. 

96. Scope of Reservations as to Groundwater. Subject only to the general reservation of , 

rights set forth in Paragraph 93, the Parties expressly agree that Littleson (including any 

past or present director, officer, successors, assigns, or Bona Fide Purchasers) and UPRR 

and Midvale City shall not be liable for any Past or Future Response Costs arising from 

or relating to groundwater contamination associated with the Site in the event that the 

preferred remedial altemative for groundwater adopted in the 0U2 ROD is determined to 

not be protective of human health or the environment or is otherwise ineffective. 

97. Littleson Work Takeover. In the event EPA determines that Littleson has ceased 

implementation of any portion ofthe Littleson Work, is seriously or repeatedly deficient 

or late in its performance ofthe Littleson Work, or is implementing the Littleson Work in 

a manner which may cause an endangerment to human health or the environment, EPA 

may assume the performance of all or any portions ofthe Littleson Work as EPA 

determines necessary. Littleson may invoke the procedures set forth in Article XXI. 

DISPUTE RESOLUTION, Paragraph 72 to dispute EPA's determination that takeover of 

the Littleson Work is warranted under this Paragraph. Should EPA take over the 

Littleson Work, EPA shall use fimds from Littleson's financial assurance pursuant to 

Paragraph 40 towards completing the Littleson Work. Any unreimbursed costs incurred 

by the United States in performing the Littleson Work pursuant to this Paragraph shall be 

considered Future Response Costs that Littleson shall be required to pay. 

98. Notwithstanding any other provision ofthis Consent Decree, the United States retains all 

authority and reserves all rights to take any and all response actions authorized by law. 

^3-
XXIV. COVENANTS BY SETTLING DEFENDANTS AND SETTLING FEDERAL 

AGENCIES 

99. Covenant Not to Sue by Settling Defendants. Subject to the reservations in this Article, 

Littleson, UPRR and Midvale City covenant not to sue and agree not to assert any claims 

or causes of action against the United States with respect to the Site, including, but not 

limited to: 

a) any direct or indirect claim for reimbursement fi-om the Hazardous Substance 

Superfund (established pursuant to the Intemal Revenue Code, 26 U.S.C. § 9507) 

through CERCLA Sections 106(b)(2), 107, 111, 112, 113, 42 U.S.C. § 

9606(b)(2), 9607, 9611, 9612,9613, or any other provision of law; 

b) any claims against the United States, including any department, agency or 

inshoimentality of the United States under CERCLA Sections 107 or 113,42 

U.S.C. § 9607 or 9613 related to the Site; 

c) any claims arising out of response actions at or in connection with the Site, 

including any claim under the United States Constitution, the State Constitution, 

the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 

2412, as amended, or at common law; or 

d) any direct or indirect claim for disbursement firom the Midvale Slag Disbursement 

Special Account (established pursuant to this Consent Decree), except as provided 

in Article XVII. DISBURSEMENT OF SPECL^L ACCOUNT FUNDS or the 

Cooperative Agreement. 

e) any direct or indirect claim relating to the allocation by the United States of flinds 

recovered by the United States in settlements with other parties relating to the Site 

including, without limitation, claims that the Settling Defendants are entitled to a 

credit or set-off with respect to such funds. 

Except as provided in Paragraph 103 (Waiver of Claims Against De Micromis Parties), 

and Paragraph 104 (Waiver of Claims Against De Minimis Parties), these covenants not 

to sue shall not apply in the event that the United States brings a cause of action or issues 

an order pursuant to the reservations set forth in Article XXIII. COVENANTS BY 

UNITED STATES against any Settling Defendant, but only to the extent that any such 

Settling Defendant's claims arise fi-om the same response action, response costs, or 

damages that the United States is seeking pursuant to the applicable reservation. 

100. Covenant bv Settling Federal Agencies. Settling Federal Agencies hereby agree not to 

assert any direct or indirect claim for reimbursement from the Hazardous Substance 

Superfund (established pursuant to the Intemal Revenue Code, 26 U.S.C. § 9507) through 

CERCLA Sections 106(b)(2), 107,111,112,113 or any other provision of law with 

respect to the Site, or this Consent Decree. This covenant does not preclude demand for 

-44-
reimbursement from the Superfund of costs incurred by a Settling Federal Agency in the 

performance of its duties (other than pursuant to this Consent Decree) as lead or support 

agency under the National Contingency Plan (40 C.F.R. Part 300). 

101. General Reservation of Rights. 

a) Settling Defendants reserve, and this Consent Decree is without prejudice, to 

claims against the United States, subject to the provisions of Chapter 171 of Title 

28 of 44 United States Code, for money damages for injury or loss of property or 

personal injury or death caused by the negligent or wrongful act or omission of 

any employee ofthe United States while acting within the scope of his office or 

employment under circumstances where the United States, if a private person, 

would be liable to the claimant in accordance with the law ofthe place where the 

act or omission occurred. However, any such claim shall not include a claim for 

any damages caused, in whole or in part, by the act or omission of any person, 

including any contractor, who is not a federal employee as that term is defined in 

28 U.S.C. § 2671; nor shall any such claim include a claim based on EPA's 

selection of response actions, or the oversight or approval of Littleson's plans or 

activities. The foregoing applies only to claims which are brought pursuant to any 

statute other than CERCLA and for which the waiver of sovereign immunity is 

found in a statute other than CERCLA. 

b) Settling Defendants reserve, and this Consent Decree is without prejudice, to 

contribution claims or any other claims under CERCLA (including without 

limitation the claims referred to in Paragraph 99(e)) against the Settling Federal 

Agencies or any other person in the event any claim is asserted by the United 

States against any of the Settling Defendants under the authority of or under 

Paragraphs 93(b)-(d), 94, 95, or 96 of Article XXIII. COVENANTS BY THE 

UNITED STATES, but only to the same extent and for the same matters, 

transactions, or occurrences as are raised in the claim ofthe United States against 

the Settling Defendants. 

102. Nothing in this Consent Decree shall be deemed to constitute preauthorization of a claim 

within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R. 

§300.700(d). 

103. Waiver of Claims Against De Micromis Parties. Settling Defendants agree not to assert 

any claims and to waive all claims or causes of action that they may have for all matters 

relating to the Site, including for contribution, against any person where the person's 

liability to a Settling Defendant with respect to the Site is based solely on having 

arranged for disposal or treatment, or for transport for disposal or treatment, of hazardous 

substances at the Site, or having accepted for transport for disposal or treatment of 

hazardous substances at the Site, if: 

-45-
a) the materials contributed by such person to the Site containing hazardous 

substances did not exceed the greater of (i) 0.002% of the total volume of waste at 

the Site, or (ii) 110 gallons of liquid materials or 200 pounds of solid materials, 

but 

b) this waiver shall not apply to any claim or cause of action against any person 

meeting the above criteria if EPA has determined that the materials contributed to 

the Site by such person contributed or could contribute significantly to the costs 

of response at the Site. This waiver also shall not apply with respect to any 

defense, claim, or cause of action that a Settling Defendant may have against any 

person if such person asserts a claim or cause of action relating to the Site against 

such Settling Defendant. 

104. Waiver of Claims Against De Minimis Parties. Settling Defendants agree not to assert 

any claims and to waive all claims or causes of action that it may have for all matters 

relating to the Site, including for contribution, against any person that has entered into a 

final CERCLA § 122(g) de minimis settlement with EPA with respect to the Site as ofthe 

Effective Date. This waiver shall not apply with respect to any defense, claim, or cause 

of action that a Settling Defendant may have against any person if such person asserts a 

claim or cause of action relating to the Site against such Settling Defendant. 

XXV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION 

105. No Third-Party Beneficiaries. Except as provided in Paragraph 89 (Bona Fide 

Purchasers), Paragraph 103 (Waiver of Claims Against De Micromis Parties), or 

Paragraph 104 (Waiver of Claims Against De Minimis Parties), nothing in this Consent 

Decree shall be constmed to create any rights in, or grant any cause of action to, any 

person not a Party (or a Littleson Work Successor) to this Consent Decree. The 

preceding sentence shall not be constmed to waive or nullify any rights that any person 

not a signatory to this decree may have under applicable law. Except as provided in 

Paragraph 89 (Bona Fide Purchasers), Paragraph 103 (Waiver of Claims Against De 

Micromis Parties), or Paragraph 104 (Waiver of Claims Against De Minimis Parties), 

each ofthe Parties expressly reserves any and all rights (including, but not limited to, any 

right to contribution), defenses, claims, demands, and causes of action which each Party 

(or successor) may have with respect to any matter, transaction, or occurrence relating in 

any way to the Site against any person not a Party (or successor) hereto. 

106. Contribution Protection. The Parties agree, and by entering this Consent Decree this 

Court finds, that Littleson, including its present and former officers and directors, Bona 

Fide Purchasers of any real property located within the Site (as set forth in Paragraph 89), 

and the other Settling Defendants and Settling Federal Agencies are entitled, as ofthe 

Effective Date, to protection from contribution actions or claims as provided by 

CERCLA Section 113(0(2), 42 U.S.C. § 9613(f)(2) for matters addressed in this Consent 

Decree. For purposes ofthis Paragraph, "matters addressed in this Consent Decree" is 

-46-
defined as all response actions taken or to be taken, and all response costs incurred or to 

be incurred by the United States or any other person, with respect to the Site. 

107. Notice. Setthng Defendants individually agree that, with respect to any suit or claim for 

contribution brought by any such Settling Defendant for matters related to this Consent 

Decree, such Settling Defendant will notify the United States in writing no later than 

sixty (60) days prior to the initiation of such suit or claim. Settling Defendants also 

individually agree that, with respect to any suit or claim for contribution brought against 

. any such Settling Defendant for matters related to this Consent Decree, such Settling 

Defendant will notify in writing the United States within twenty (20) days of service of 

the complaint upon such Settling Defendant. In addition, any such Settling Defendant 

shall notify the United States within ten (10) days of service or receipt of any motion for 

sunrunary judgment and within ten (10) days of receipt of any order from a court setting a 

case for trial. 

108. In any subsequent administrative or judicial proceeding initiated by the United States for 

injunctive relief, recovery of response costs, or other appropriate relief relating to the 

Site, no Settling Defendant shall assert or maintain any defense or claim based upon the 

principles of waiver, res judicata, collateral estoppel, issue preclusion, claimsplitting, or 

other defenses based upon any contention that the claims raised by the United States in 

the subsequent proceeding were or should have been brought in the instant case; 

provided, however, that nothing in this Paragraph affects the enforceability ofthe 

covenants not to sue set forth in Article XXIII. COVENANTS BY UNITED STATES or 

the reservation of Settling Defendants' rights as set forth in Article XXFV. 

COVENANTS BY SETTLING DEFENDANTS AND SETTLING FEDERAL 

AGENCIES. 

XXVL ACCESS TO INFORMATION 

109. Each Settling Defendant shall, upon request, provide to EPA copies of any non-privileged 

documents and information within its possession or control or that of its contractors or 

agents relating to their respective activities at the Site or to the implementation of their 

respective obligations under this Consent Decree, including, as applicable, sampling, 

analysis, chain of custody records, manifests, tiaicking logs, receipts, reports, sample 

traffic routing, correspondence, or other documents or information related to the Littleson 

Work, Groundwater O&M, and/or implementation or enforcement ofthe Institutional 

Controls, as applicable. Each Settling Defendant shall also make available to EPA, for 

purposes of investigation, information gathering, or testimony, their employees, agents, 

or representatives with knowledge of relevant facts conceming the performance of their 

applicable obligations under this Consent Decree, including without limitation, the 

Littleson Work, and/or implementation or enforcement of the Institutional Controls, as 

applicable. 

-47-
110. Business Confidential and Privileged Documents. 

a) Settling Defendants may assert business confidentiality claims covering part or all 

ofthe documents or information submitted to EPA or the United States under this 

Consent Decree to the extent permitted by and in accordance with Section 

104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). 

Documents or information determined to be confidential by EPA will be afforded 

the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of 

confidentiality accompanies documents or information when they are submitted to 

EPA, or if EPA has notified such Settling Defendant that the documents or 

information are not confidential under the standards of Section 104(e)(7) of 

CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such 

documents or information without further notice to such Settling Defendant. 

b) Settiing Defendants may assert that certain documents, records and other 

information are privileged under the attomey-client privilege or any other 

privilege recognized by federal law. If a Settling Defendant asserts such a 

privilege in lieu of providing documents, upon request it shall provide the EPA 

with the following: (1) the title ofthe document, record, or information; (2) the 

date ofthe document, record, or information; (3) the name and title ofthe author 

ofthe document, record, or information; (4) the name and title ofeach addressee 

and recipient; (5) a description ofthe contents ofthe document, record, or 

information; and (6) the privilege asserted by the Settling Defendant. However, 

no documents, reports or other information created or generated pursuant to the 

requirements ofthe Consent Decree shall be withheld on the grounds that they are 

privileged. 

111. No claim of confidentiality shall be made with respect to any data, including, but not 

limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or 

engineering data, or any other documents or information evidencing conditions at or 

around the Site. 

112. The United States acknowledges that each Settling Federal Agency (1) is subject to'all 

applicable Federal record retention laws, regulations, and policies; and (2) has certified 

that it has fully complied with any and all EPA requests for information pursuant to 

Section 104(e) and 122(e) of CERCLA, 42 U.S.C. §§9604(e) and 9622(e), and Section 

3007 of RCRA, 42 U.S.C. §6927. 

XXVn. RETENTION OF RECORDS 

113. Until ten (10) years after Littleson's receipt of EPA's notification pursuant to Paragraph 

50(b) of Article XIV. COMPLETION OF ML:.EST0NE WORK, and except as 

otherwise specifically provided in the Cooperative Agreement, Settling Defendants shall 

preserve and retain all non-identical copies of records and documents (including records 

or documents in electronic form) now in its possession or control or which come into its 

-48-
possession or control that relate in any manner to its liability under CERCLA with 

respect to the Site; provided, however, that each Settling Defendant must retain, in 

addition, ail documents and records that relate to the liability of any other person under 

CERCLA with respect to the Site. Settling Defendants must also retain, and instmct its 

contractors and agents to preserve, for the same period of time specified above all nonidentical copies ofthe last draft or final version of any documents or records (including 

documents or records in electronic form) now in its possession or control or which come 

into its possession or control that relate in any manner to the performance ofthe Littleson 

Work, UPRR O&M relating to performance ofthe Remedial Action on the UPRR 

Property, and/or implementation or enforcement ofthe Institutional Controls; provided, 

however, that Settling Defendants (and their contractors and agents) must retain, in 

•addition, copies of all data generated during the performance ofthe Littleson Work, 

UPRR O&M relating to performance ofthe Remedial Action on the UPRR Property, 

and/or implementation or enforcement ofthe Institutional Controls and not contained in 

the aforementioned documents required to be retained. Each ofthe above record 

retention requirements shall apply regardless of any corporate retention policy to the 

contrary. 

114. At the conclusion ofthis document retention period, each Settling Defendant shall notify 

the United States at least ninety (90) days prior to the destmction of any such records or 

documents, and, upon request by the United States, any such Settling Defendant shall 

deliver requested records or documents to EPA. Settling Defendants may assert that 

certain documents, records and other infonnation are privileged under the attomey client 

privilege or any other privilege recognized by federal law. If a Settling Defendant asserts 

such a privilege, it shall, upon request, provide with the following: (1) the title ofthe 

document, record, or information; (2) the date ofthe document, record, or information; 

(3) the name and title ofthe author ofthe document, record, or information; (4) the name 

and title ofeach addressee and recipient; (5) a description ofthe subject ofthe document, 

record, or information; and (6) the privilege asserted by the Settling Defendant. 

However, no documents, reports or other information created or generated pursuant to the 

requirements ofthe Consent Decree shall be withheld on the grounds that they are 

privileged. 

115. Each Settling Defendant hereby individually certifies that, to the best of its knowledge 

and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed or 

otherwise disposed of any records, documents or other information (other than identical 

copies) relating to its potential liability regarding the Site since notification of potential 

liability by the United States or the filing of suit against it regarding the Site and that it 

has fiilly complied with any and all EPA requests for information pursuant to Section 

104(e) and 122(e) of CERCLA, 42 U.S.C. 9604(e) and 9622(e), and Section 3007 of 

RCRA, 42 U.S:C. 6927. 

-49-
XXVIII. NOTICES AND SUBMISSIONS 

116. Whenever, under the terms of this Consent Decree, written notice is required to be given 

or a report or other document is required to be sent by one Party to another, it shall be 

directed to the individuals at the addresses specified below, unless those individuals or 

their successors give notice of a change to the other Parties in writing. All notices and 

submissions shall be considered effective upon receipt, unless otherwise provided. 

Written notice as specified herein shall constitute complete satisfaction of any vmtten 

notice requirement ofthe Consent Decree with respect to the United States, EPA, 

Littleson, Midvale City, Settling Federal Agencies, or UPRR, respectively. 

As to the United States: Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044-7611 

Re: DJ# 90-11-3-1194/1 

Chief, Environmental Defense Section 

United States Department of Justice 

P. 0. Box 23986 

Washington, DC 20026-3986 

Re: DJ #s: 90-11 -6-05738; 90-11 -6-05739 

And Assistant Regional Administrator 8 EPR 

United States Environmental Protection Agency 

Region 8 

999 18* Stt-eet, Suite 300 

Denver, CO 80202-2466 

As to EPA: Frances L. Costanzi 8 EPR-SR 

EPA Project Coordinator 

United States Environmental Protection Agency 

Region 8 

999 18* Sti'eet, Suite 300 

Denver, CO 80202-2466 

-50-
As to the Regional Financial Management 

Officer: Regional Financial Management Office 8TMS-F 

United States Environmental Protection Agency 

999 18* Stteet, Suite 300 

Denver, CO 80202-2466 

As to Littleson: 

As to Midvale City 

Robert Soehnlen 

Littleson, Inc. 

2100 East Bengal Blvd. 

#F203 

Salt Lake City, Utah 84123 

With a copy to: 

Kevin R. Murray 

lOOOKeamsBldg. 

136 South Main Street 

Salt Lake City, Utah 84104-1645 

Christine Richmaii 

Director 

Community & Economic Development 

City of Midvale 

655 W. Center Street 

Midvale, Utah 84047 

With a copy to: 

Martin Pezely 

City Attomey 

City of Midvale 

655 W. Center Street 

Midvale, Utah 84047 

-51-
As UPRR: David P. Young 

Union Pacific Railroad Company 

1400 Douglas Street 

Omaha, Nebraska 68179 

Fax:(402)271-7107 

With a copy to: 

Dennis C. Farley 

Lear & Lear, LLP 

299 South Main, Suite 2200 

Wells Fargo Center 

Salt Lake City, Utah 84111 

Fax: (801) 538-5001 

XXIX. EFFECTIVE DATE 

117. The Effective Date of this Consent Decree shall be the date upon which this Consent 

Decree is entered by the Court, except as otherwise provided herein. 

XXX. RETENTION OF JURISDICTION 

118. This Court retains jurisdiction over both the subject matter of this Consent Decree and the 

Parties for the duration ofthe performance ofthe terms and provisions ofthis Consent 

Decree for the purpose of enabling any ofthe Parties to apply to the Court at any time for 

such further order, direction, and relief as may be necessary or appropriate for the 

constmction or modification ofthis Consent Decree, or to effectuate or enforce 

compliance with its terms, or to resolve disputes in accordance with Article XXI. 

DISPUTE RESOLUTION hereof 

XXXI. APPENDICES 

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

"Appendix A" includes the OUI ROD (Appendix A-l). and the 0U2 ROD (Appendix A-2). 

"Appendix B" is the RD Work Plan. 

"Appendix C" is the description and/or map ofthe Site. 

"Appendix D" is a form of Notice and Easement Littleson will record with the Salt Lake County 

Recorder's Office in accordance with Paragraphs 9(a) and 22(a). 

"Appendix E" is a form of Notice UPRR will record with the Salt Lake County Recorder's Office 

in accordance with Paragraph 9(b). 

-52-
"Appendix F" is a list ofthe departments, agencies, and instrumentalities ofthe United States 

defined herein as the "Settling Federal Agencies." 

"Appendix G" is the form of insurance policy for purposes of financial assurance. 

"Appendix H" is the form of Release of Lien. 

"Appendix I" is the legal description ofthe UPRR Property. 

"Appendix J" is the Institutional Control Process Plan for OUI. 

"Appendix K" is the Institutional Control Process Plan for 0U2. 

XXXIL COMMUNITY RELATIONS 

120. Littleson shall propose to EPA their participation in the Community Relations plan to be 

developed by EPA. EPA will determine the appropriate role for Littleson under the Plan. 

Littleson shall also cooperate with EPA in providing information regarding the Littleson 

Work to the public. As requested by EPA, Littleson shall participate in the preparation of 

such information for dissemination to the public and in public meetings which may be 

held or sponsored by EPA to explain activities at or relating to the Site. 

XXXIII. MODIFICATION 

121. Schedules specified in this Consent Decree for completion of the Littleson Work may be 

modified by agreement of EPA and Littleson. All such modifications shall be made in 

writing. 

122. Nothing in this Decree shall be deemed to alter the Court's power to enforce, supervise or 

approve modifications to this Consent Decree. 

XXXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 

123. This Consent Decree shall be lodged with the Court for a period of not less than thirty 

(30) days for public notice and comment in accordance with Section 122(d)(2) of 

CERCLA, 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the 

right to withdraw or withhold its consent if the comments regarding the Consent Decree 

disclose facts or considerations which indicate that the Consent Decree is inappropriate, 

improper, or inadequate. The Settling Defendants consent to the entry ofthis Consent 

Decree without further notice. 

124. If for any reason the Court should decline to approve this Consent Decree in the form 

presented, this agreement is voidable at the sole discretion of any Party and the terms of 

the agreement may not be used as evidence in any litigation between the Parties. 

-53-
XXXV. SIGNATORIES/SERVICE 

125. Each undersigned representative of Littleson, Midvale City, or UPRR to this Consent 

Decree and the Assistant Attomey General for the Environment and Natural Resources 

Division ofthe Department of Justice hereby certifies that he or she is fully authorized to 

enter into the terms and conditions ofthis Consent Decree and to execute and legally bind 

such Party to this document. 

126. Each Settling Defendant hereby agrees not to oppose entry ofthis Consent Decree by this 

Court or to challenge any provision ofthis Consent Decree unless the United States has 

notified such Settling Defendant in writing that it no longer supports entry ofthe Consent 

Decree. 

127. Each Settling Defendant shall identify, on the attached signature page, the name, address 

and telephone number of an agent who is authorized to accept service of process by mail 

on behalf of that Party with respect to all matters arising under or relating to this Consent 

Decree. Each Settling Defendant hereby agrees to accept service in that manner and to 

waive the formal service requirements set forth in Rule 4 ofthe Federal Rtiles of Civil 

Procedure and any applicable local mles ofthis Court, including, but not limited to, 

service of a summons. The Parties agree that no Settling Defendant need file an answer 

to the complaint in this action unless or until the Court expressly declines to enter this 

Consent Decree. 

XXXVI. FINAL JUDGMENT 

128. This Consent Decree and its appendices shall constitute the final, complete, and exclusive 

agreement and understanding among the Parties with respect to the settlement embodied 

in the Consent Decree. The Parties acknowledge that there are no representations, 

agreements or understandings relating to the settlement other than those expressly 

contained in this Consent Decree (including without limitation the representations, 

agreements, or understandings set forth in the Midvale Slag Superfiind Site Settlement 

and Release Agreement between UPRR and Littieson). 

129. Upon approval and entry ofthis Consent Decree by the Court, this Consent Decree shall 

constitute a final judgment between and among the United States and Settling 

Defendants. The Court finds that there is no just reason for delay and therefore enters this 

judgment as a final judgment under Fed. R. Civ. P. 54 and 58. 

SO ORDERED THIS DAY OF , 2004. 

BY THE COURT 

TED STEWART 

United States District Judge 

-54-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. 

Littleson. Inc. et ai. relating to the Midvale Slag Superfund Site. 

FOR THE UNITED STATES OF AMERICA 

'b-ifh- ^ . , 2004 |c AJ D M&^^i ^ f„^ 

DATE THOMAS L. SANSONETTI 

Assistant Attomey General 

Environment and Natural Resources Division 

U.S. Department of Justice 

Washington, D.C. 20530 

Sefh J_,2004 Xt/^ l/lifi^'^ 

DA A l t ROBERT R. HOMIAK 

Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

999 18* Sh-eet, Suite 945, North Tower 

Denver, CO 80202-2449 

DATE DAVID S. GUALTIERI 

Environmental Defense Section 

Environment & Natural Resources Division 

U.S. Department of Justice 

P. O. Box 23986 

Washington, D.C. 20026-3986 

55-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. 

Littleson. Inc. et al.. relating to the Midvale Slag Superfund Site. 

^0200 4 

^DATE ^ CAROL RUSHIN 

Assistant Regional Administrator, Region 8 

. U.S. Environmental Protection Agency 

United Stated Environmental Protection Agency 

999 18* Street, Suite 300 

Denver, CO 80202-2466 

^TE 

J^ .2004 JEk2^hAM£2Z-Q,^^^nH.jin^ 

KATHERINE J. TETER ' ' ' J ^ 

Senior Enforcement Attomey, Region 8 

U.S. Environmental Protection Agency 

999 18* Street, Suite 300 

Denver, CO 80202-2466 

-56 -
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. 

Littleson. Inc.. etal.. relating to the Midvale Slag Superfimd Site. 

FOR LITTLESON, IN( 

EiK\ ^ . 

DATEQ 

2004 

:VIN R J<^UF 

Counsel to Littleson, Inc. 

LeBoeuf, Lamb, weene & M^dRae 

136S. Main, SuiteKlQO, 

Salt Lake City, Utah 84101 

iTiJy ;?"? .2004 

DATE / ROBERT L. SOEHNLEN 

' President 

Littleson, Inc. 

2100 East Bengal Blvd. #F203 

Salt Lake City, UT 84121 

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

Kevin R. Murray 

1000 Keams Building 

136 South Main Street 

Salt Lake City, UT 84101-1685 

Ph. Number: (801)320-6700 

-57-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. 

Littleson. Inc.. et ai, relating to the Midvale Slag Superfiind Site. 

u^g" _, 2004 

DATE 

Qd 

FOR MIDVALE CITY CORPORATION 

JOANN B. SEGHINI 

M^or 

655 W. Center Street 

Midvale, UT 84047 

,^^ , 2004 

APPROVE TO FORM AND LEGALITY: 

MARTIN PEZELY 

Midvale City Attorney 

655 W. Center Street 

Midvale, UT 84047 

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

Rori Clark 

City Recorder 

655 W. Center Street 

Midvale, UT 84047 

-58-
• e * 

THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. 

Littleson. Inc.. et al.. relating to the Midvale Slag Superfund Site. 

FOR UNION PACIFIC RAILROAD 

COMPANY 

^i^^^ ^ 'T^9 ,2004 lAU^^t^i^^k^C^ 

DATE r-v( ^DESNISCTFARLE 

Lear & Lear, LLP 

Attomeys for UPRR 

299 South Main, Suite 2200 

Wells Fargo Center 

Salt Lake City, UT 84111 

Fax: (801)538-5001 

,2004 J^ylU*^^ ^ ^ 

/CARRY E.WZOREtf lwwnoiE.WKWk 

Assistant Vice President-Law UPRR 

1400 Douglas Street 

Omaha, NE 68179 

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

David P. Young 

Counsel to UPRR 

1400 Douglas Street 

Omaha, NE 68179 

Fax: (402)271-7107 

-59-
&EPA 

On this day, May 23, 2008. 

the U.S. Environmental Protection Agency (U.S. EPA) 

Determines that 

Midvale Slag Superfund Site 

Is Ready for Mixed Reuse 

Carol L. Campbell 

U.S. Environmental Protection Agency 

This Ready for Reuse (RIR) Dctennination is for the Midvale Slag Supertund Site ("Site"), exchidini: llie Joidiin Riwr npariau zniie. This RtR Detcnuinglion is based an liinilaliaiis aitd requirements established in U.S. 

Enviianment Protection Agency (EPA) decision documents Tor the Site, includinfi Ilie Wl i OUI and 2002 OU2 Records of Decision (ROD), the I V>R .-nid 2006 Explanation ol'Sienincaiil DifTeieiices (ESO) Tor OU I. and the 

200.1 Five-Year Review. EPA have made a technical determination that these paicels ofland al the Site, located in tiK City orMidvule, Salt Lake County. Utah, ate ready Tor mixed use, including residenliat, recreational, 

commercial and light industrial uses and that the Silt's remedy will remain pintective of human health and the enviroiimeni, subject to opcratioii and maiutcnaiKC ofthe remedy and the limitations as specified in tlie RODs. 

ESDs, Five-Year Review, and the City of Midvale's ordinance cnlitled liKliiiiiumul < immils OnJinamv tur Hiiij^um JimciKui. Jiinkm HliiJI.\ iiiul l>i:xi)9kiiL-il Hiiiliix-nJ.H'im, which have been sutnmarized in llie atiaclied report. 

Ready for Reuse Determination, Midvale Slag Superfund Site. May Ib. 2008. This RIK Deiemiiiiation remains valid only as long as the reqiiireiiients and use limitations specified in the RODs, ESD. Five-Year Review, and 

Institutional Control Ordinance enacted, by the City of Midvale, Utah, arc met. 

Limitations on Site uses include the following: Additional requirements for llie nuiJiagement of surface water apply to portions of Bingham Junction South as laid out in the City of Midvale Ordinance. Tlie Ordinance also 

designates Ihe areas of Bingham Junction Soutli subject to vapor mitigation. Tlie Midvale Ordinance and llie 2004 Tniiiiuvl Kicmunuuhm lur l'rvlimuiiir\ RvmcJiaiiim dixil^ <iiul Ik-cixiini-iiiukiiiK I'nur.'ii al Mitlmie .'iliin 

(Jf/, "Technical Memorandum" includes a protocol for determining if a p.ircel ofland in OUI is suitable for development for residential or recreational land use wilhuut any restn'clions or inslitutioflal controls. Ifthis protocol 

is met, only ICs addressing groundwater will apply. If not, the addilional ICs addressing soils and residential use outlined in Ihc Ordinance will apply. Ground water ICs prohibit all new water wells, as well as ihe distuiinnce of 

existing wells, witlioul EPA and UDEQ approval. Soil ICs specify rei|uiremenls far the disposal ofexcess excavated soils, the excavation and handling of visible slag, and tlw notification ofthe potential presence of 

contaminants to conliactors working on the Site. Residential use JCs require building permit applicanls to submit griidiiig plans, to file conditions with the Subdivision I'lal, and lo retain un inspector to oversee IC 

iinplemenialiun. 

This Ready for Reuse Determination is an eiivironmenial status report and does not have any legally binding ellect, nor docs it expressly or implicitly create, expand, or limit any legal rights, obligations, responsibilities, 

expeciaiions, or benefits of any party. U.S. EPA assumes no responsibility for reuse activities or for any possible or potential harm that might result from reuse activities. U.S. EPA retains any and all rights and authorities it 

has, including but not limilcd to legal, equitable, or administrative rights. U S. EPA specitically retains any and all rights and authorities it has lo conduct, direct, o\n:rsee. and/or require environmental response actions in 

connedion with the Site, ihchiding instances when new or additional information has been discovered regarding llie contamination or conditions at the Sile that indicate that llie remedy and/or Ihe conditions at the Sile are no 

longer protective of human heahh or the environment for the uses ideniified in Ihe Ready for Reuse Deienninatioii. TI K City of Midvale is responsible for ensuring llini any limitations specified in IIK RODs. ESD. Five-Year 

rview, or Institutional Control Ordinance eiucted by the City of Midvule that might be afTected by a particular use are complied u-iili during llie activity. 

5 of uses identified as prutective in this RIR Determination remain subject to (i) applicable federal, slate, and local regulation, and to (iii title docunienis, including but not limited to easements, restrictions, ana 

i controls. 

CO? 
Ready for Reuse Determination 

Midvale Slag Superfund Site 

Table of Contents 

I. Executive Summary 1 

II. Site and Parcel Location 4 

III. Site Summary 5 

Site and Contaminant History , 5 

Description of Risks 8 

Summary of Cleanup Activities 8 

Removal Actions 10 

Remedial Activities 10 

Redevelopment/Reuse History 14 

IV. U.S. EPA's Basis for the Ready for Reuse (RfR) Determination 15 

V. Ongoing Limitations and Responsibilities Previously Established by U.S. EPA ... 16 

Institutional and Engineering Controls 16 

Operation and Maintenance Requirements 18 

VI. Provisos 18 

Appendix A. Technical Memorandum for Preliminary Remediation Goals and 

Decision-making Process at Midvale Slag OU 1 

Appendix B. Midvale City Ordinance Adopted June 19, 2007 

Appendix C. Abbreviations and Acronyms 

Appendix D. Glossary 

Ust of Exhibits 

Exhibit 1: Midvale Slag Location Map 4 

Exhibit2: Midvale Slag OUI Parcel Map 5 

Exhibits: 0U2 Area Designations 7 

Exhibit 4: Chronology of Site Events 9 

Exhibit 5: Land Use Areas and Institutional Controls at Midvale Slag Site (OUI) ... 17 
I, Executive Summary 

This Ready for Reuse (RfR) Determination is for the Midvale Slag Superfiind Site 

("Site"), excluding the Jordan River riparian zone. The Site is 446 acres, has two 

operable units and is mostly located in the City of Midvale with a portion extending into 

the City of Murray, Utah. Operable Unit I (OUI) is 266 acres and includes the portion of 

the Site now called Bingham Junction North, the Winchester Estates Mobile Home Park 

on the northem portion ofthe site, the abandoned Midvale Wastewater Treatment Plant, a 

former lagoon area, and jurisdictional wetlands (wetlands protected by the Clean Water 

Act). Operable Unit 2 (0U2) contains 180 acres on the southem part ofthe site, now 

known as Bingham Junction South. Included within 0U2 are the former Silver Refinery 

Area, located in the southeast portion of 0U2, and the Butterfield Lumber property, 

which lies in the northeast portion of 0U2. The excluded Jordan River Riparian Zone 

contains approximately 6 acres. This RfR Determination, therefore, encompasses 

approximately 440 acres. 

This RfR Determination is based on limitations and requirements established in United 

States Environment Protection Agency (EPA) decision documents for the Site, including 

the 1995 OUI and 2002 0U2 Records of Decision (ROD), the 1998 and 2006 

Explanation of Significant Differences (ESD) for OUI, and the 2003 Five-Year Review. 

EPA has made a technical determination that these parcels of land at the Site, located in 

the City of Midvale and the City of Murray, Salt Lake County, Utah, are ready for mixed 

use, including residential, recreational, commercial and light industrial uses and that the 

Site's remedy will remain protective of human health and the environment, subject to 

operation and maintenance ofthe remedy and the limitations as specified in the RODs, 

ESDs, Five-Year Review, and the City of Midvale's ordinance entitled Institutional 

Controls Ordinance for Bingham Junction, Jordan Bluffs and Designated Rights-ofWays, as summarized in the text ofthis RfR Determination. 

According to the 2003 Five Year Review, the northem parcels of OUI (WENW and 

WESE parcels - see Exhibit 2) located in the City of Murray, Utah were cleaned up to 

residential levels (650 mg/kg lead and 73 mg/kg arsenic) and no institutional controls 

(ICs) were needed except for those addressing ground water. At the time ofthe 1999 

Remedial Action Report for OUI, the remaining portion of OUI (LF, LG, LR, LR-East -

see Exhibit 2) was ready for commercial and industrial use with additional requirements 

for residential/recreational use. The developer of OUI conducted further remediation on 

a portion of OUI to remove the need for soil ICs. 

Bingham Junction South, or 0U2, includes a surface cover underlain by a demarcation 

layer consisting either of slag material (minimum 24 inches) or a geotextile material. The 

material below the demarcation layer is presumed to exceed the remediation goals 

established by EPA for the property, but that presumption may be rebutted. Bingham 

Junction South is ready for mixed reuse, including residential, subject to institutional 

controls relating to the management of materials removed from below the demarcation 

layer, cover maintenance and ground water use. Additional requirements for the 
management of surface water apply to portions of Bingham Junction South as laid out in 

the City of Midvale Ordinance. The Ordinance also designates the areas of Bingham 

Junction South subject to vapor mitigation. 

EPA and UDEQ established institutional controls for OUI and 0U2. According to the 

2004 Consent Decree, which the City of Midvale signed, responsibility for ensuring 

implementation of institutional controls falls to City of Midvale Department of 

Community and Economic Development, landowners, and property owner's associations 

(PDAs),. EPA and Utah Department of Environmental Quality (UDEQ) will continue 

overseeing operation and maintenance activities and will coordinate future five-year 

reviews at the Site. The City of Midvale adopted its Institutional Control Ordinance on 

June 26, 2007. The Ordinance uses the City of Midvale's development review, 

excavation permit, and construction specifications processes to oversee activities. 

The Midvale Ordinance and the 2004 Technical Memorandum for Preliminary 

Remediation Goals and Decision-making Process at Midvale Slag OUI, (Technical 

Memorandum) include a decision flowchart, or protocol, for determining if a parcel of 

land in OUI is suitable for development for residential or recreational land use without 

any restrictions or institutional controls. Ifthis protocol is met, only ICs addressing 

groundwater will apply. If not, the additional ICs addressing soils and residential use 

outlined in the Ordinance will apply. Ground water ICs prohibit all new water wells, as 

well as the disturbance of existing wells, without EPA and UDEQ approval. Soil ICs 

specify requirements for the disposal ofexcess excavated soils, the excavation and 

handling of visible slag, and the notification ofthe potential presence of contaminants to 

contractors working on the Site. Residential use ICs require building permit applicants to 

submit grading plans, to file conditions with the Subdivision Plat, and to retain an 

inspector to oversee IC implementation. 

EPA has assessed the risk to human health and the environment resulting from 

contamination at the Site. EPA and UDEQ conducted risk assessments ofthe human and 

environmental risks associated with residential uses at the Site (1992 baseline risk 

assessment and 2004 Technical Memorandum). Unacceptable risks identified for the Site 

included human exposure to arsenic and lead through dust and soils, and arsenic through 

ground water. In its 1995 OUI ROD and the 2002 0U2 ROD, EPA selected response 

actions to manage and eliminate these risks. In 1998 and 2006, EPA issued two ESDs 

modifying the remedy established in the original OUI ROD. Changes included altering 

soil remediation and changing land use requirements for portions of OUI; regulating 

riparian zone remediation; and selecting a comprehensive ground water monitoring plan 

consistent with the 0U2 ROD. With the completion ofthe response actions required by 

the RODs and ESDs, the Midvale Slag Site has attained the CERCLA cleanup goals and 

remedial action objectives for the majority ofthe Site, excluding the Jordan River 

Riparian Zone and the groundwater. 

Based upon information available as ofthis date, EPA has determined that the 

unacceptable levels of risk to current and fiiture users ofthe Midvale Slag Superfund Site 
have been mitigated for mixed users. The Site is ready for mixed use and the Site's 

remedy will remain protective of human health and the environment, subject to operation 

and "maintenance ofthe remedy and limitations as specified in the ROD, ESDs, Five-Year 

Review, and the Institutional Control Ordinance enacted by the City of Midvale, Utah. 

EPA Region 8 issued this Ready for Reuse Determination, effective May 23, 2008 

By: Ci.^^ - i!^- (7 c>-y^24~*.^ 

Carol L. Campbell 

Acting Assistant Regional Administrator 

Office of Ecosystems Protection and Remediation 

Enviroimiental Protection Agency, Region 8 

Documents pertaining to the Site and the RfR Determination are part ofthe 

Administrative Record for the Site, which is available for review at the Ruth Vine Tyler 

Library, 8041 South Wood Street (55 West) Midvale, Utah 84047 or the EPA Superftind 

Records Center, 1595 Wynkoop Street, Denver, Colorado 80202. Additional information 

can be obtained from Ema Waterman, the Site's Remedial Project Manager (RPM) for 

EPA, who can be reached at 303.312.6762 or waterman.ema@.epa.gov .