ATTACHMENT A

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 1 of 77
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, )

Plaintiff, )

v. )

LINNTON PLYWOOD )

ASSOCIATION, )

Defendant. )

Civil Action No. 3:14-01772-ST

AMENDED CONSENT DECREE

AMENDED CONSENT DECREE

I. BACKGROUND

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

the United States Environmental Protection Agency ("EPA"), the National Oceanic and

Atmospheric Administration ("NOAA"), United States Department of Commerce and the United

States Department of the Interior ("DOI"), filed a complaint in this matter pursuant to Section107

of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42

U.S.C. § 9607, as amended ("CERCLA"), seeking reimbursement for response costs incurred or

to be incurred for response actions taken or to be taken at or in connection with the release or

threatened release of hazardous substances and for Natural Resource Damages at the Portland

Harbor Superfund Site in Portland, Multnomah County, Oregon (the ``Site).

B. In response to the release or threatened release of hazardous substances at or from

the Site, EPA undertook response actions pursuant to Section 104 of CERCLA, 42 U.S.C. § 9604,

and will undertake additional response actions in the future. NOAA and DOI have undertaken, in

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coordination with the other Natural Resource Trustees, Natural Resource Damage assessment

activities pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607, and will undertake additional

Natural Resource Damage assessment activities in the future.

C. In performing response actions at the Site, to date EPA has incurred approximately

$9 Million in unreimbursed costs in response to releases and threatened releases of hazardous

substances at the Site ,and will continue to incur costs in the future. A 2012 draft Feasibility

Study estimated the cost of different remedial alternatives could range between $169 Million and

$1.7 Billion. In performing Natural Resource Damage assessment activities at the Site, NOAA

and DOI have incurred unreimbursed costs in excess of $2 Million and will continue to incur

costs in the future. A preliminary estimate of Natural Resource Damages at the Site exceeds $291

Million.

D. The United States alleges that Settling Defendant is a responsible party pursuant to

Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and is jointly and severally liable for response

costs incurred and to be incurred at the Portland Harbor Superfund Site and Natural Resource

Damages related to the Site.

E. As more fully described below, liability insurance policies may have been or were

issued to, or for the benefit of Settling Defendant which may provide coverage for a part of the

claims the United States is making against Settling Defendant.

F. Settling Defendant has represented that it is no longer conducting any business

and, other than its insurance policies, its only tangible asset is a parcel of real property, located

within the boundaries of the Site. Settling Defendant is in the process of liquidating all of its

assets and winding down all. of its business affairs,

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G. Settling Defendant has entered into a sale agreement for the sale of its real

property to Linnton Water Credits, LLC ("LWC"), which is conditioned upon its settlement of

Settling Defendant's liability for response costs and Natural Resource Damages under CERCLA.

At the conclusion of the sale of its property, Settling Defendant will not own or operate on any

property within the Site.

H. At the United States' request, Settling Defendant provided Financial Information

and Insurance Information and represents that all such information is true and complete. The

United States has reviewed the Financial Information and Insurance Information submitted by

Settling Defendant to determine whether Settling Defendant is financially able to pay response

costs incurred and to be incurred at the Site and Natural Resource Damages related to the Site.

Based upon this Financial Information and Insurance Information, the United States has

determined that Settling Defendant has limited financial ability to pay response costs incurred and

to be incurred at the Site and Natural Resource Damages related to the Site, but is able to pay the

amounts specified in Section VII. and fulfill the other obligations assumed by Settling Defendant

under this Consent Decree.

I. The United States and Settling Defendant agree, and this Court by entering this

Consent. Decree finds, that this Consent Decree has been negotiated by the Parties in good faith,

that settlement of this matter will avoid prolonged and complicated litigation between the Parties,

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

NOW, THEREFORE, it is ORDERED, ADJUDGED, AND DECREED:

II. JURISDICTION

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

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

over Settling Defendant. Settling Defendant consents to and shall not challenge entry of this

Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.

III. PARTIES BOUND

2. This Consent Decree is binding upon the United States, and upon Settling

Defendant and its successors and assigns. Any change in ownership or corporate or other legal

status, including, but not limited to, any transfer of assets or real or personal property, shall in no

way alter the status or responsibilities of Settling Defendant. under this Consent Decree. In

accordance with ORS Chapter 62, the Complaint, this Consent Decree, and Settling Defendant's

obligations hereunder are pending proceedings which survive in the event of dissolution of

Settling Defendant.

IV. DEFINITIONS

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

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

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

used in this Consent Decree or in any appendix attached hereto, the following definitions sha11

apply:

a. "CERCLA" shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act of 19$0, as amended, 42 U.S.C. § 9601, et seq.

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b. "Consent Decree" shall mean this Consent Decree and all appendices

attached hereto. In the event of conflict between this Consent Decree and any appendix, this

Consent Decree shall control.

c. "Day' shall mean a calendar day. In computing any period of time under

this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the

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

d. "DOJ" shall mean the United States Department of Justice and any

successor departments, agencies or instrumentalities of the United States.

e. "Effective Date" shall mean the date upon which this Consent Decree is

entered by the Court. as recorded on the Court docket, or, if the Court instead issues an order

approving the Consent Decree, the date such order is recorded on the Court docket.

f. "EPA" shall mean the United States Environmental Protection Agency and

any successor departments, agencies or instrumentalities of the United States.

g. "EPA Hazardous Substance Superfund" shall mean the Hazardous

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

h. "Federal Natural Resource Trustees" or "Federal Trustees" shall mean the

U.S. Department of the Interior and the National Oceanic and Atmospheric Administration, U.S.

Department of Commerce and any successor departments, agencies or instrumentalities of the

United States.

i. "Financial Information" sha11 mean. those financial documents identified in

Appendix A.

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"Interest" shall mean interest at the rate specified for interest on

investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507,

compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9b07(a). The

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

interest is subject to change on October 1 of each year.

k. "Institutional Controls" shall mean Proprietary Controls and state or local

laws, regulations, ordinances, zoning restrictions, or other governmental controls or notices that:

{1) limit land, water, andlor resource use to minimize the potential for human or environmental

exposure to Waste Material at or in connection to the Site; (2) limit land, water, and/or resource

use to implement, ensure non-interference with, or ensure the protectiveness of the response

action; and/or (3) provide information intended to modify or guide human behavior at the Site.

"Insurance Information" shall mean those insurance documents identified

in Appendix B.

m. "Insurance Policies" shall mean all insurance policies under which Settling

Defendant is insured, including, but not limited to policies for which Settling Defendant is an

"insured," "named insured" or "additional insured," including, but. not limited to comprehensive,

commercial, primary, umbrella and excess policies issued by Liberty Mutual Insurance Company,

or its affiliates, parents, subsidiaries or predecessors and successors in interest, including, but not

limited to General Insurance Company of America, American States Insurance Company and

SAFECO Insurance Company, and including but not limited to all. policies for comprehensive or

commercial general liability, excess, excess/umbrella, umbrella, pollution legal liability, and

environmental impairment liability that may have ever been issued to Settling Defendant and

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policies otherwise for the benefit of Settling Defendant. Insurance Policies known at the time of

signing this Consent Decree are listed in Appendix B to this Consent Decree.

n. "Natural Resource Damages" shall mean the compensation, including the

reasonable costs of assessing such damages, which is recoverable pursuant to Section 107(a) of

CERCLA, 42 U.S.C. § 9607(a), by Natural Resource Trustees on behalf of the public for injury

to, destruction of, loss of, or loss of uses of the natural resources or resource services resulting

from the release or threat of release of hazardous substances at or from the Site.

o. "Natural Resource Trustees" shall mean, for the purposes of this Consent

Decree, those Trustees who are part of the Portland Harbor Natural Resource Trustee Council as

of the date of entry of this Consent Decree.

p. "Net Proceeds of Sale" shall mean the total value of all consideration

received by Settling Defendant from the sale of the Property either on the terms set forth in

Appendix C, or by a future purchase and sale agreement, not including: i) any payment in

consideration of the release of any lien listed in Appendix A; (ii) any reasonable closing costs

paid regarding the sale; (iii) any reasonable broker's fees regarding the sale; (iv) any state and/or

municipal transfer taxes regarding the sale; (v) amounts owed those trade creditors disclosed to

the US prior to the lodging of this Consent Decree, if any; and (vi) payments of retains from

earnings and share redemption as ordered by the court in the matter of Weiss, et al. v. Linnton

Plywood Association, et al., Circuit Court of the State for Multnomah County Case No. 0807-

10423; and iv) federal, state, or county tomes owed on the Property and Sale proceeds.

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

Arabic numeral or an upper or lower case letter.

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"Parties" shall mean the United States and the Settling Defendant.

s. "Plaintiff' shall mean the United States.

t. "Portland Harbor Special Account" shall mean the special account, within

the EPA Hazardous Substances Superfund, established for the Portland Harbor Superfund Site by

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

u. "Portland Harbor Natural Resource Trustee Council" shall mean those

Natural Resource Trustees who are participating as Natural Resource Trustees pursuant to the

"Natural Resource Trustee Memorandum of Agreement for the Portland Harbor Superfund Site"

at the time of entry of phis Consent Decree —the U.S. Department of the Interior; the U.S.

Department of Commerce, acting through the National Oceanic and Atmospheric Administration

{NOAA); the State of Oregon; the Confederated Tribes of the Grand Ronde Community of

Oregon; the Confederated Tribes of Siletz Indians; the Confederated Tribes of the Umatilla Indian

Reservation; the Confederated Tribes of the Warm Springs Reservation of Oregon; and the Nez

Pence Tribe.

v. "Property" shall mean Linnton Plywood Association's 26.5 acres located at

i 0504 NW St. Helens Road, Portland, Oregon, Multnomah County, as more fully described in the

legal description set forth in Appendix D.

w. "Proprietary Controls" shall mean easements or covenants running with the

land that (1) limit land, water, or resource use and/or provide access rights and (2) are created

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

appropriate land records office.

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

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

y. "Section" shall mean a portion of this Consent Decree identified by a

Roman numeral.

z. "Settling Defendant" shall mean Linnton Plywood Association.

aa. ``Site" shall mean the Portland Harbor Superfund Site, located in the City of

Portland, Multnomah County, Oregon, that was listed on the National Priorities List {"NPL") on

December 1, 2000, 65 Fed. Reg. 75179-01 . The Portland Harbor Superfund Site consists of the

areal extent of contamination from releases to the lower Willamette River, and also includes

upland source areas. The Portland Harbor Superfund Site Assessment Area currently covers

River Mile 1 to River Mile 12.

bb. "United States" shall mean the United States of America, including its

departments, agencies and instrumentalities, including EPA and the Federal Natural Resource

Trustees.

cc. "Waste Material" shall mean 1) any "hazardous substance" under Section

101(14) of CERCLA, 42 U.S.C. § 9b01(14); 2) any pollutant or contaminant under Section

101(33) of CERCLA, 42 U.S.C. § 9601(33); 3) any "solid waste" under Section 1004{27) of

RCRA, 42 U.S.C. § 6903(27); and 4) any "hazardous substance" under ORS 465.200 et.seq.

V. STATEMENT OF PURPOSE

4. By entering into this Consent Decree, the mutual objective of the Parties is for

Settling Defendant to make cash payments and provide other valuable consideration to resolve its

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alleged liability as provided in the Covenant Not to Sue by Plaintiff in Section IX., and subject to

the Reservation of Rights by the Plaintiff in Section X.

VI. CONFESSION OF JUDGMENT

5. Settling Defendant hereby agrees and confesses to entry of a judgment against it on

the United States' claims, as set forth in the Complaint, in the amount of $9 Million for

unreimbursed past costs and. in an unliquidated amount for all future response costs incurred and

to be incurred in connection with the release or threatened releases of hazardous substances at the

Site, including those beginning in 1951 and continuing thereafter during Defendant's ownership

and operations at the Property, under Section 107 of CERCLA, 42 U.S.C. § 9607. Settling

Defendant hereby further agrees and confesses to entry of a judgment against it on the United

States' claims, as set forth in the Complaint, in the amount of $2 Million of past unreimbursed

Natural Resource Damages, specifically assessment costs incurred, and in an unliquidated amount

for all Natural Resource Damages in connection with the release or threatened releases of

hazardous substances at the Site, including those beginning in 1951 and continuing thereafter

during Defendant's ownership and operations at the Property, under Section 107 of CERCLA, 42

U,S.C. §9607,

VII. PAYMENT OF THE JUDGMENT

6. Within thirty (30) days of entry by the Court of this Consent Decree, Settling

Defendant shall pay to the United States, Four Hundred Fifty Thousand Dollars {$450,000} in

accordance with the instructions contained in Paragraph 8 below.

7. Payment of Net Proceeds of Sale of Property.

a. No later than thirty (30) days after Settling Defendant closes the sale of the

Property, Settling Defendant shall remit to the United States the Net Proceeds of Sale of the

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Properky as defined. in this Consent Decree and. pursuant to the requirements of this Paragraph

provided below. The payments shall be made in accordance with the instructions contained in

Paragraph 8. below.

b. Settling Defendant shall submit to EPA and the Federal Natural Resource

Trustees, at least fifteen (15) days prior to the date of the Property sale closing, a notice of the sale

and Settling Defendant's calculation of the net sales proceeds, and all documentation regarding

the values used in the calculation, including but not limited to: (i) copies of all documents to be

executed regarding the sale; (ii) documentation of the amounts to be paid to holders of any liens

and property taxes owed; (iii) documentation of the amounts of closing costs to be paid; (iv)

documentation any broker's fees regarding the sale; (v) documentation of the amounts of state

and/or municipal taxes to be paid regarding the sale of the Property; (vi) amounts owed those

trade creditors disclosed to the US prior to the lodging of this Consent Decree, if any; (vii) the

payments of retains and share redemption; and (viii) federal and state taxes owed on Sale

proceeds. At least seven (7) days after receipt of the purchase money, Settling Defendant shall

submit updated documentation regarding the calculation of the Net Proceeds of Sale to be paid

according to Paragraph 7.a above.

In the event that the purchase and sale agreement with Linnton Water

Credits, LLC does not. close or is voided or withdrawn, Settling Defendant shall use best efforts to

sell the Property to another purchaser. "Best efforts" for purposes of this Paragraph includes: (i)

entering into a listing agreement for the purpose of marketing and selling the property with a real

estate broker, dealer, or agent licensed in the State of Oregon who customarily deals with real

property similar to the Property; (ii) advertising the Property for sale in appropriate publications;

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(iii) listing the Property with appropriate real estate listing services; (iv) maintaining the Property

in a condition suitable for showing to prospective buyers; and (v} providing access to the

Property, at reasonable times, to real estate brokers, dealers or agents and prospective buyers.

Settling Defendant shall submit to EPA reports regarding Settling Defendant's efforts to market

the property. The first such report shall be due six months after the purchase and sale agreement

with. Linnton V+Iater Credits, LLC is voided or withdrawn, and successive reports shall be due

biannually thereafter.

d. Settling Defendant shall provide to EPA a copy of the proposed Property

sales contract along with a letter opinion, as that term is defined in O.R.S. § 696.294, regarding

the proposed sale price of the Property from a licensed principal real estate broker, as that terms is

defined in O.R.S. § 696.010(13). Settling Defendant must obtain EPA's written approval of the

Property sales contract before executing the contract. Settling Defendant shall provide to EPA a

copy of the executed contract within five working days after signing the contract. The

requirements and commitments contained in subsections a. and b. above shall apply to the preclosing and post-closing of the Property sales contract.

e. In the event of a sale or other transfer of the Property or any portion

thereof, Settling Defendant shall continue to be subject to all terms, conditions and benefits of this

Consent Decree, except for Section XIII. (Access and Institutional Controls), to the extent it

requires Settling Defendant to provide access to, or to implement Institutional Controls regarding

the Property or portion thereof that was sold or transferred. Settling Defendant shall continue to

be subject to the requirement to enforce any agreements, pursuant to Section XIII., for the new

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owner to provide access and/or record Institutional Controls regarding the Property or portifln

thereofthat was sold.

8. Pavrnent Instructions for all Patents.

a. Every payment required by Paragraphs 6 and 7 of this Section, shall be

divided between EPA and the Federal Natural. Resource Trustees as follows: 75% to EPA and

25% to the Federal Natural Resource Trustees.

b. The payments pursuant to Paragraphs 6 and 7 above shall be made by

FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice account in

accordance with current EFT procedures to be provided to Settling Defendant by the Financial

Litigation Unit of the U.S. Attorney's Office in the District of Oregon following lodging of the

Consent Decree. Any payment received by the Department of Justice after 4:00 p.m. Eastern

Time shall be credited on the next business day.

At the time of payment, Settling Defendant shall send notice that payment

has been made to EPA, the U.S. Department of Interior, and DOJ in accordance with Section

XVI. (Notices and Submissions). Notice shall also be made to EPA Cincinnati Finance Office by

email at acctsreceivable.cinwd@epa.gov or by mail to:

EPA Cincinnati Finance Office

26 Martin Luther King Drive

Cincinnati, Ohio 45268

For the payment. to EPA, the notice shall also reference DOJ Case Number 90-11-2-06787/3,

EPA Region 10 and SitelSpill Identification Number 103R.

d. Notice that payment has been made shall also be sent by mail to:

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DOI Office of Restoration and Damage Assessment

Attn: NRDAR Fund Manager

1$49 C Street. NW

Maitstop 3548

Washington, D.C. 20240

Far the payment to the Natural Resource Trustees, the notice shall also reference "Natural

Resource Damages for the Portland Harbor Superfund Site" and NRDAR Account No. 14X5198.

9. Portland Harbor Superfund Site Insurance Recovery Trust. Within five (5) days

after the Effective Date, Settling Defendant shall execute the Revised Portland Harbor Insurance

Recovery Trust Trust Agreement in the form attached to this Consent Decree as Appendix E and

incorporated herein by reference. Settling Defendant shall fully comply with the Revised

Portland Harbor Insurance Recovery Trust Trust Agreement, including the payment of $50,000

into the Trust no later than thirty (30) days after the Effective Date of this Consent Decree. Upon

and after the Settling Defendant's execution of the Revised Trust Agreement: (1) Settling

Defendant shall not be entitled to any funds obtained by the Insurance Recovery Trust Trustee on

account of or in connection with any of the rights under Insurance Policies transferred to the

Insurance Recovery Trust; (2) Except as provided in this Consent Decree and the Revised Trust

Agreement, Settling Defendant sha11 be estopped from claiming or receiving defense or indemnity

coverage under the Insurance Policies related to the Portland Harbor Superfund Site; and (3)

Except as provided in this Consent Decree and the Revised Trust Agreement, Settling Defendant

shall have no rights to make additional Environmental Claims (as that term is defined in the

Revised Trust Agreement) for payment or pursue existing such claims for payment for defense or

indemnity under the Insurance Policies. Except as provided in this Consent Decree and the

Revised Trust Agreement, Settling Defendant further covenants not to assert or claim insurance

coverage related to the Portland Harbor Superfiznd Site under the Insurance Policies after the date

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it signs the Revised Trust Agreement. In addition, Settling Defendant shall fully cooperate in the

following tasks related to the Portland Harbor Insurance Recovery Trust ("Trust"):

a. Complete a diligent, good faith search to identify any evidence of

Insurance Policies {including, but not limited to, a review of business records, insurance related

invoices, Certificates of Insurance, accounting ledgers, correspondence, or any other insurance

related documentation} in which Settling Defendant may have an interest within 3Q days from the

Effective Date, and immediately notify Trustee of the discovery of any evidence of additional

Insurance Policies (even if such discovery occurs more than 30 days after the Effective Date);

b. Take such further actions and execute and deliver such documents and

instruments as maybe necessary or appropriate (if any) to transfer andlor assign Settling

Defendant's rights to Environmental Claims (as that term is defined in the Revised Trust

Agreement) for payment under any or all of the Insurance Policies and to authorize the Trust to

commence and/or prosecute pending proceedings, and to defend proceedings, in the Settling

Defendant's name in connection. with any and all of the Insurance Policies the rights to

Environmental Claims (as that term is defined in the Revised Trust Agreement) under which have

been transferred and/or assigned to the Trust;

c. Cooperate with Trustee's efforts to pursue any and all claims and/or causes

of action under or related to the Insurance Policies and to avoid any interference, whether by

affirmative act or failure to act, with Trustee's recovery efforts or management of the Trust and

Trust Fund;

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d. Identify any documents or sources of documents that, to Settling

Defendant's knowledge; may relate to operations, activities, or corporate histories of entities that

conducted operations at the Property {"Property Records");

Provide Trustee and the Trust's representatives with. full access to Property

Records; and

f. Provide Trustee and the Trust's representatives with any other assistance

necessary to accomplish the duties, purposes, and goals of the Trust, including but not limited to

the execution of any documents associated with the Trust and its recovery activities in a timely

fashion.

g. In the event of the dissolution or complete liquidation of the Settling

Defendant, the provisions of this Paragraph 9 shall survive, and the Trustee may assert claims or

causes of action contemplated by this Paragraph 9 and by the Revised Trust Agreement as if

Settling Defendant had not dissolved or completely liquidated.

10. The total amount to be paid to EPA as required by Paragraphs 6 and 7 of this

Section and all funds received by EPA from the Trust shall be deposited in the Portland Harbor

Special Account in the EPA Hazardous Substance Superfund. EPA may retain and or use the

monies received from this settlement to conduct or finance response actions taken after the

Effective Date of this settlement at or in connection with the Site, or transfer all or any portion of

such funds to the EPA Hazardous Substance Superfund.

VIII. FAILURE TO COMPLY WITH CONSENT DECREE

11. Interest on Late Patents. If Settling Defendant fails to make the payments

specified in Paragraphs 6 and 7 in Section. VII, by the required due date, Interest shall. accrue on

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any unpaid amounts until the total amount due has been received.

12. Stipulated Penalty

a. If any amounts due under Paragraphs 6 and 7 in Section VII. are not paid

by the required dates or in the correct amounts, Settling Defendant shall be in violation of this

Consent Decree and shall pay, as a stipulated penalty, in addition to the Interest required by

Paragraph 11, $100 per violation per day that such payment is late or not paid in full.

b. Stipulated penalties are due and payable within 30 days of the date of the

demand for payment of the penalties by EPA. All payments to United States under this Paragraph

shall be identified as "stipulated penalties" and shall be made by certified or cashier's check made

payable to "EPA Hazardous Substance Superfund." The check, or a letter accompanying the

check, shall reference the name and address of the party making payment, the Site name, the EPA

Region and Site Spill ID Number 103R, and DOJ Case Number 90-11-2-06787/3, and shall be

sent to:

US Environmental Protection Agency

Superfund Payments

Cincinnati Finance Center

PO Box 979076

St. Louis, MO 63197-9000

c. At the time of each payment, Settling Defendant shall send notice that

payment has been made to EPA and DOJ in accordance with Section XVL (Notices and

Submissions) and to the EPA Cincinnati Finance Office by email at

acctsreceivable.cinwd@epa.gov, or by mail to:

EPA Cincinnati Finance Office

26 Martin Luther King Drive

Cincinnati, Ohio 4526$

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Such notice shall reference the CDCS Number, Site/Spill ID Number 103R, and DOJ Case

Number 90-11-2-06787/3.

d. Penalties shall accrue as provided in this Paragraph regardless of whether

EPA has notified Settling Defendant of the violation or made a demand for payment, but need

only be paid upon demand. All penalties shall begin to accrue on the day after payment is due

and shall continue to accrue through the date of payment. Nothing herein shall prevent the

simultaneous accrual of separate penalties for separate violations of this Consent Decree.

13. If the United States brings an action to enforce this Consent Decree, Settling

Defendant shall reimburse the United States for all casts of such action, including but not limited

to costs of attorney time.

14. Payments made under this Section shall be in addition to any other remedies or

sanctions available to Plaintiff by virtue of Settling Defendant's failure to comply with the

requirements of this Consent Decree.

15. Notwithstanding any other provision of this Section, the United States may, in its

unreviewable discretion, waive payment of any portion of the stipulated penalties that have

accrued pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse

Settling Defendant from payment as required by Section VII. or from performance of any other

requirements of this Consent Decree.

IX. COVENANT NOT TO SUE BY PLAINTIFF

16. Except as specifically provided in Section X. {Reservation of Rights by United

States), the United States covenants not to sue or to take administrative action against Settling

Defendant pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a),

with regard to a) all Natural Resource Damages arising from injuries to trust resources resulting

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from releases of hazardous substances at or from the Site and b) all United States response actions

taken. or to be taken and all United States response costs incurred or to be incurred, at or in

connection with the sediments and surface watersrn tl~e lower twelve river miles of the

Willamette River, including those riparian bank locations at which EPA takes response actions.

With respect to present and future liability, this covenant shall take effect upon 1) receipt by the

United States of the payment by Settling Defendant of Four Hundred Fifty Thousand Dollars

{$450,000) as set forth in Section VII., Paragraph 6, and 2) Settling Defendant's execution of the

Revised Portland Harbor Insurance Recovery Trust Trust Agreement. This covenant not to sue is

given in consideration for and is conditioned upon: a) the satisfactory performance by Settling

Defendant of its obligations under this Consent Decree, including but not limited to, payment of

ali amounts due under Section VII. and execution of and compliance with the Revised Portland

Harbor Insurance Recovery Trust Trust Agreement, including payment of $50,000 into the Trust

and assignment to the Trust of Settling Defendants's rights under the Insurance Policies; b) any

amount due under Section VIII. (Failure to Comply with Consent Decree); and c) the veracity and

completeness of the Financial Information provided to the United States by Settling Defendant

and the financial, insurance, and indemnity certification made by Settling Defendant in Section

XV., Paragraph 35. If the Financial Information or Insurance Information provided by Settling

Defendant, or the financial, insurance, or indemnity certification made by Settling Defendant in

Paragraph 35, is subsequently determined by the United States to be false or, in any material

respect, inaccurate, Settling Defendant shall forfeit all payments made pursuant to this Consent

Decree and this covenant not to sue and the contribution protection in Section XII. shall be null

and void. Such forfeiture shall not constitute liquidated damages and shall not in any way

foreclose the United States' right to pursue any other causes of action arising from Settling

Page 19

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 20 of 77
Defendant's false or materially inaccurate information. This covenant. not to sue extends only to

Settling Defendant and does not extend to any other person. The cash payment made under

Paragraph 6 of this Consent Decree Shall be credited toward the confessed judgment. As part of

this covenant not to sue, the parties agree that the remainder of the confessed judgment shall be

satisfied solely from the Net Proceeds of Sale and from proceeds obtained on account of the rights

to Environmental Claims for payment under Insurance Policies, which rights will be assigned to

the Insurance Recovery Trust by operation of the Revised Portland Harbor Superfund Site

Insurance Recovery Trust Agreement. For avoidance of doubt, it is the parties' intention that this

covenant not to sue and the assignment of rights through execution of and compliance with the

Portland Harbor Insurance Recovery Trust upon which it is conditioned shall not extinguish any

claim in contract, tort, or statute under and in connection with the Insurance Policies.

X. RESERVATION OF RIGHTS BY UNITED STATES

17. The United States reserves, and this Consent Decree is without prejudice to, all

rights against Settling Defendant with respect to all matters not expressly included within the

Covenant Not to Sue by the United States in Paragraph 16. Notwithstanding any other provision

of this Consent Decree, the United States reserves all rights against Settling Defendant with

respect to:

a. liability for failure of Settling Defendant to meet a requirement of this

Consent Decree;

b. criminal liability;

Page 20

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 21 of 77
c. liability arising from the past. present, or future disposal, release or threat

of release of a hazardous substance, pollutant, or contaminant outside of the Site, or on the

Property;

d. liability based on the ownership or operation of any portion of the Site by

Settling Defendant when such ownership or operation commences after signature of this Consent

Decree by Settling Defendant;

e. liability based on Settling Defendant's transportation, treatment, storage, or

disposal, or the arrangement for the transportation, treatment, storage, or disposal of Waste

Material at or in connection with the Site, after signature of this Consent Decree by Settling

Defendant; and,

f. liability for response actions taken or to be taken, and response costs

incurred or to be incurred at, or in connection with the Willamette River above river mile twelve,

riparian bank locations at which EPA does not take response actions, and/or the upland portions

of the Site (including response actions taken or to be taken and response costs incurred or to be

incurred in connection with upland areas that are sources of releases or threats of releases ~o

Willamette River sediments and surface water within the Site}.

18. Notwithstanding any other provision of this Consent Decree, the United States

reserves, and this Consent Decree is without prejudice to, the right to reinstitute or reopen this

action, or to commence a new action. seeking relief other than as provided in this Consent Decree,

if the Financial Information or the Insurance Information provided by Settling Defendant, or the

financial, insurance, or indemnity certification made by Settling Defendant in Section XV,,

Paragraph 35, is false or, in any material respect, inaccurate.

Page 21

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 22 of 77
XI. COVENANT NOT TO SUE BY SETTLING DEFENDANT

19. Settling Defendant. covenants not to sue and agrees not to assert any claims or

causes of action against the United States, or its contractors ar employees, with respect to the Site

or this Consent Decree, including but not limited to:

a. any direct or indirect claim for reimbursement from the Hazardous

Substance Superfund based on Sections 106{b)(2), 107, 111, 112, or i 13 of CERCLA, 42 U.S.C.

§§ 9606(b)(2), 9607, 9611, 961.2, or 9613, or any other provision of law;

b. any claim arising out of response actions at or in connection with the Site,

including any claim under the United States 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,

c. any claim against the United States pursuant to Sections 107 and 113 of

CERCLA, 42 U.S.C. §§ 9607 and 9613, or state law, relating to the Site.

20. Nothing in this Consent Decree shall be deemed to constitute approval or

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).

21. Except as provided in Paragraph 22 of this Section (claims against other PRPs) and

Paragraph. 26 {res judicata and other defenses) in Section XII., these covenants not to sue shall not

apply in the event the United States brings a cause of action or issues an order pursuant to any of

the reservations set forth in Section X. (Reservations of Rights by United States), other than in

Paragraph 17.a. (claims for failure to meet a requirement of the Consent Decree) or 17.b.

(criminal liability}, but only to the extent that Settling Defendant's claims arise from the same

Page 22

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 23 of 77
response action or response costs that the United States is seeking pursuant to the applicable

reservation.

22. Settling Defendant agrees not to assert any CERCLA claims or causes of action

(including but not Iimited to claims or causes of action under Sections 107(a) and 113 of

CERCLA) that it may have for all matters relating to all. Natural Resource Damages arising from

injuries to trust resources resulting from releases of hazardous substances at or from the Site and

all response actions taken or to be taken and all response costs incurred or to be incurred, at or in

connection with the Site, against any other person who is a potentially responsible party under

CERCLA at the Site. This waiver shall not apply with respect to any defense, claim, or cause of

action that Settling Defendant may have against any person if such person asserts a claim or cause

of action relating to the Site against Settling Defendant.

XII. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION

23. Nothing in this Consent Decree shall be construed to create any rights in, or grant

any cause of action to, any person not a Party to this Consent Decree. The preceding sentence

shall not be construed to waive or nullify any rights that any person not a signatory to this Decree

may have under applicable law. Except as provided in Paragraph 22, the Parties expressly reserve

any and all rights {including, but not limited to, any right to contribution), defenses, claims,

demands, and causes of action which they may have with respect to any matter, transaction, or

occurrence relating in any way to the Site against any person not a Party hereto. Nothing in this

Consent Decree diminishes the right of the United States, pursuant to Section 1130(2) and (3) of

CERCLA, 42 U.S.C. § 96130(2)-(3), to pursue any such persons to obtain additional response

costs, Natural Resource Damages or response action and to enter into settlements that give rise to

contribution protection pursuant to Section i 13(fl{2).

Page 23

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 24 of 77
24. The Parties agree, and by entering this Consent Decree this Court finds, that this

settlement constitutes ajudicially-approved settlement for purposes of Section 1130(2) of

CERCLA, 42 U.S.C. § 96130{2), and that Settling Defendant is entitled, as of the date of entry

of this Consent Decree, to protection from contribution actions or claims as provided by Section

1130(2) of CERCLA, 42 U.S.C. § 9613(f~(2), or as may be otherwise provided by law, for

matters addressed in this Consent Decree. The matters addressed in this Consent Decree are a) all

Natural Resource Damages arising from injuries to trust resources resulting from releases of

hazardous substances at or from. the Site and b) all response actions taken or to be taken and all

response costs incurred or to be incurred, at or in connection with the sediments and surface water

in the lower twelve river miles of the Willamette River, including those riparian bank locations at

which EPA takes response actions, by the United States or any other person with respect to the

Site; provided, however, that if the United States exercises rights under the reservations in Section

X., (Reservation of Rights by the United States), other than in Paragraph 17.a (for claims for

failure to meet a requirement with the Decree), or 17.b (criminal liability), the "matters

addressed" in this Consent Decree will no longer include those response costs or response actions

or Natural Resource Damages that are within the scope of the exercised reservation.

25. Settling Defendant shall, with respect to any suit or claim for contribution brought

against it for matters related to this Consent Decree, notify EPA, the Federal Trustees, and DOJ in

writing within 10 days of service of the complaint or claim upon it. In addition, Settling

Defendant shall notify EPA, the Federal Trustees, and. DOJ within 10 days of service or receipt of

any Motion for Summary Judgment, and within 10 days of receipt of any order from a court

setting a case fox trial, for matters related to this Consent Decree.

Page 24

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26. In any subsequent administrative or judicial proceeding initiated by the United

States for injunctive relief, recovery of response costs, Natural Resource Damages, or other relief

relating to the Site, Settling Defendant. shall not assert, and. may not maintain, any defense or

claim based upon the principles of waiver, yes judicator, collateral estoppel, issue preclusion,

claim-splitting, or other defenses based upon any contention that the claims raised by the United

States in the subsequent proceeding were or should have been brought in the instant case;

provided, however, that nothing in this Paragraph affects the enforceability of the Covenant Not

to Sue by Plaintiff set forth in Section IX.

XIII. ACCESS AND INSTITUTIONAL CONTROLS

27. If, access and/or land use restrictions are needed to implement response activities

at the Site at the Property, or any other real property that is owned or controlled by Settling

Defendant, Settling Defendant shall:

a. commencing on the date of lodging of this Consent Decree, provide the

United States and its representatives, including EPA and the Federal Trustees, and their

contractors, with access at all reasonable times to the Property, or such other property, for the

purpose of conducting any response activity related to the Site, including, but not limited to, the

following activities;

(I) Monitoring, investigation, removal, remedial or other activities at

the Site;

(2) Verifying any data or infornaation submitted to the United States;

Page 25

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 26 of 77
{3) Conducting investigations relating to contamination a~ or near the

Site;

{4) Obtaining samples;

(5) Assessing the need for, planning, or implementing additional

response actions at or near the Site;

(6) Inspecting and copying records, operating logs, contracts, or other

documents maintained or generated by Settling Defendant or its agents, consistent with Section

XIV. (Access to Information);

(7) Assessing Settling Defendant's compliance with this Consent

Decree; and

(8) Determining whether the 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; and

(9) Implementing, monitoring, maintaining, reporting on, and enforcing

any Institutional Controls.

b. Commencing on the date of lodging of this Consent Decree, Settling

Defendant shall not use the Property, in any manner that would: (1) interfere with completion of

the Remedial Investigation and Feasibility Study for the Portland Harbor Superfund Site; (2)

additional source control investigation and implementation; or (3) adversely affect the

implementation, ititegi~ity ~r protectiveness of the remedial measures to be performed at the Site.

Page 26

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If Settling Defendant sells or transfers all or a portion of the Property,

Settling Defendant shall. place a Proprietary Control on the Property prior to or simultaneously

with the transfer, such as, an easement and equitable servitude or covenant. Such Proprietary

Control shall be placed on the Property title through the deed or contemporaneously with the

recording of the deed transferring an interest in the Property or portion thereof which complies

with Oregon real property law sa as to run with the land and be binding against future owners.

Such easement and equitable servitude or covenant shall be enforceable by Settling Defendant

and provide EPA with a third party beneficiary interest to enforce the easement and equitable

servitude or covenant. If agreed to by the State of Oregon, the State may be the grantee and

holder of the easement and reserved uses and have enforcement rights as well. The easement and

equitable servitude or covenant shall require the purchaser or transferee to provide:

(1) access to the United States, Settling Defendant, and any parties to

an agreement with EPA or order issued by EPA, and their representatives, contractors and

subcontractors, to conduct any activity related to the cleanup of the Portland Harbor Superfund

Site at reasonable times, including, but not limited to, the activities listed in subparagraph. a;

(2) to refrain from using the Property, in any manner that would

interfere with completion of the Remedial Investigation and Feasibility Study, additional source

control investigation and implementation, or adversely affect the implementation, integrity or

protectiveness of the remedial measures to be performed at the Portland Harbor Superfund Site;

(3) to cooperate with United States and any parties to an agreement or

under an order issued by EPA upon their request in facilitating the performance of the remedy at

Page 27

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 28 of 77
the Portland Harbor Superfund Site. In the event that the sole use of the Property by a future

owner is as a habitat restoration project and if EPA determines that access to the Property is

necessary to perform the remedy at the Site, and/or maintain the remedy, EPA will require any

performing party to notify the Property owner no less than ninety (90) days prior to when access

is needed, except for an emergency response action situation, and discuss the manner, duration,

and specifics of the work required to be done on, at, or from the Property for the purpose of

minimizing disruption to the owner's use of the Property and restoring any habitat impacted by

the work.

d. Settling Defendant shall, within sixty (60) days of entry of this Consent

Decree, but no later than thirty (30) days prior to the closing of a sale or transfer of the Property

or a portion thereof submit to EPA for review and approval with respect to such property:

(1) a draft easement and. equitable servitude or covenant, that complies

with this Consent Decree, that is enforceable under the laws of the State of Oregon, free and clear

of all prior liens and encumbrances (except as approved by EPA); and

(2) Within 30 days of recording the easement or covenant, Settling

Defendant shall provide EPA a certified copy of the original recorded easement or covenant

showing the clerk's recording stamps.

28. If EPA determines that land/water use restrictions in the form of state or local

laws, regulations, ordinances or other governmental controls are needed to implement response

activities at the Portland Harbor Superfund Site, ensure the integrity and protectiveness thereof, or

ensure non-interference therewith, Settling Defendant shall cooperate with EPA's efforts to secure

such governmental controls, if Settling Defendant is still. the owner of the Property.

Page 2$

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 29 of 77
29. Notwithstanding any provision of this Consent Decree, the United States. reserves

all. of its access authorities and rights, as well as all of its rights to require landlwater use

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

other applicable statute or regulations.

XIV. ACCESS TO INFORMATION

30. Settling Defendant shall provide to EPA, upon request, copies of all records,

reports, or information (hereinafter referred to as "records") within their possession or control or

that of their contractors or agents relating to activities at the Site and Property, including, but not

limited to, sampling, analysis, chain of custody records, manifests, trucking logs, receipts, reports,

sample traffic routing, correspondence, or other documents or information related to the Site and

Property.

31. Confidential Business Information and Privileged Documents.

a. Settling Defendant may assert business confidentiality claims covering part

or all of the records submitted to Plaintiff 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). Records determined to be confidential by EPA will be accorded the protection specified

in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies records when they are

submitted to EPA, or if EPA has notified Settling Defendant that the records are not confidential

under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public

may be given access to such records without further notice to Settling Defendant.

b. Except as otherwise provided herein, Settling Defendant may assert that

certain records are privileged under the attorney-client privilege or any other privilege recognized

by federal law. If Settling Defendant asserts such a privilege in lieu of providing records, it shall

Page 29

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 30 of 77
provide Plaintiff with the following: 1) the title of the record; 2) the date of the record; 3) the

name and title of the author of the record; 4) the name and title of each addressee and recipient; 5)

a description of the subject of the record; and 6) the privilege asserted. However, no records

created or generated pursuant to the requirements of this or any other settlement with the United

States shall be withheld on the grounds that they are privileged.

32. 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 records evidencing conditions at or around the Site.

F:~~A N X11 Y ~1►i111 [i7►[~7 ~.7 x~~7:Z 7.9

33. Until ten {10) years after the entry of this Consent Decree, Settling Defendant shall

preserve and retain all records now in its possession or control, or which come into its possession

ox control, that relate in any manner to response actions taken at the Site or the liability of any

person under CERCLA with. respect to the Site, regardless of any corporate retention policy to the

contrary.

34. After the conclusion of the document retention period in the preceding paragraph,

Settling Defendant shall notify EPA and DOJ at least 90 days prior to the destruction of any such

records, and, upon request by EPA or DOJ, Settling Defendant shall deliver any such records to

EPA. Settling Defendant may assert that certain. records are privileged under the attorney-client

privilege or any other privilege recognized by federal law. If Settling Defendant asserts such a

privilege, it shall provide Plaintiff with the following: 1) the title of the record; 2) the date of the

record; 3) the name and title of the author of the record; 4) the name and title of each addressee

and recipient; 5) a description of the subject of the record; and 6) the privilege asserted.

Page 30

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 31 of 77
However, no records created or generated pursuant to the requirements of this or any other

settlement with the United States shall be withheld on the grounds that they are privileged.

35. Settling Defendant hereby certifies that, to the best of its knowledge and belief,

after thorough. inquiry, it has:

a. not altered, mutilated, discarded, destroyed or otherwise disposed of any

records, reports, or other information relating to its potential liability regarding the Site since the

earlier of notification of potential liability by the United States or the State or the filing of suit

against it regarding the Site, and that it has fully complied with any and all EPA requests for

information regarding the Site and Settling Defendant's financial circumstances, including but not

limited to insurance and. indemnity information, during the course of the negotiations of this

Consent Decree and/or requests pursuant to Sections 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; and

b. submitted to EPA Financial Information that fairly, accurately, and

materially sets forth i#s financial circumstances, and that those circumstances have not materially

changed between. the time the Financial Information was submitted to EPA and the time Settling

Defendant executes this Consent Decree; and

c. has and will fully disclose any information regarding the existence of any

insurance policies or indemnity agreements that may cover claims relating to cleanup of the Site,

and submitted. to the United States upon request such insurance policies, indemnity agreements,

and information.

XVI. NOTICES AND SUBMISSIONS

Page 31

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 32 of 77
36. Whenever, under the terms of this Consent Decree, notice is required to be given

or a 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. Written notice as specified herein shall constitute complete

satisfaction of any written notice requirement of the Consent Decree with respect to the United

States, EPA, DOJ, and Settling Defendant, respectively.

As to the United States:

As to DOJ:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

LJ.S. Department of Justice (DJ # 90-11-2-06787/3)

P.O. Box 7611

Washington, D.C. 20044-7611

As to EPA:

Lori Houck Cora

Assistant Regional Counsel

Office of Regional Counsel

U.S. Environmental Protection Agency Region 10

ORG158

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101

Kristine Koch

Remedial Project Manager

Office of Environmental Cleanup

U.S. Environmental Protection Agency Region 10

ECL 115

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101

As to the Federal Trustees:

Page 32

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 33 of 77
Katherine A. Pease

NOAA Office of General Counsel

Suite 4470, 501 West Ocean Boulevard

Long Beach. CA 90802

Deirdre F. Donahue

Office of the Solicitor

U.S. Department of the Interior

805 SW Broadway

Portland, OR 97205-3346

Page 33

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 34 of 77
As to Settling Defendant:

Linnton Plywood Association

10504 NW St. Helens Rd.

Portland, OR 97231

•l

Lane Powe11 PC

Attn: William P. Hutchison, Esq.

601 SW Second Avenue, Suite 2100

Portland, OR 97204

XVII. RETENTION OF JURISDICTION

37. This Court shall retain jurisdiction over this matter for the purpose of interpreting

and enforcing the terms of this Consent Decree.

XVIII. INTEGRATION/APPENDICES

38. This Consent Decree and its appendices constitute the final, complete and

exclusive Consent Decree and understanding between the Parties with respect to the settlement

embodied in this 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. The following appendices are attached to and. incorporated into this Consent

Decree:

a. Index of Linnton Plywood. Association Financial Information

b. Index of Linnton Plywood Association Insurance Information (including

Policies)

Page 34

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 35 of 77
c. Linnton Plywood Association and Linnton Water Credits, LLC Purchase

and Saie Terms

d. Legal Description of Linnton Plywood Association Property

Revised Portland Harbor Superfund Site Insurance Recovery Trust Trust

Agreement

XIX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

39. This Consent Decree shall be lodged with the Court for a period of not less than 30

days for public notice and comment. 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 this Consent Decree is inappropriate, improper, or inadequate. Settling Defendant

consents to the entry of this Consent Decree without further notice.

40. If for any reason this Court should decline to approve this Consent Decree in the

form presented, this Consent Decree is voidable at the sole discretion of any party and the terms

of the Consent Decree may not be used as evidence in any litigation between the Parties.

XX. SIGNATORIES/SERVICE

41. Each undersigned representative of Settling Defendant to this Consent Decree and

the Assistant Attorney General for the Environment and Natural Resources Division of the United

States Department of Justice certifies that he or she is authorized to enter into the terms and

conditions of this Consent Decree and to execute and bind legally such Party to this document.

42. Settling Defendant hereby agrees not to oppose entry of this Consent Decree by

this Court or to challenge any provision of this Consent Decree, unless the United States has

notified Settling Defendant in writing that it no longer supports entry of the Consent Decree.

Page 35

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 36 of 77
43. Settling Defendant shall identify, on the attached signature page, the name and

address of an agent who is authorized to accept service of process by mail on its behalf with

respect to all matters arising under or relating to this Consent Decree. Settling Defendant hereby

agrees to accept service in that manner and to waive the formal service requirements set forth in

Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court,

including but not limited to, service of a surmnons. The Parties agree that Settling Defendant

need not file an answer to the complaint in this action unless or until the Court expressly declines

to enter this Consent Decree.

44. Upon approval and entry of this Consent Decree by the Court, this Consent Decree

shall constitute the final judgment between the United States and Settling Defendant. 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 AND ADJUDGED THIS DAY OF , 2~

United States District Judge

Page 36

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 37 of 77
( y f

U ~"t; ~J. ~~US~Jtf:~lMn.~~"r~

THE UNDERSIGNED PARTIES enter into this Consent Decree in the matter of [insert case

name and civil action number], re~lya~}ting to the Portland Harbor Superfund Site.

!+` y L L%~ J ~. 1~1- ~ .' E. ; ~ E. 

iC"d t ~i i . ~ t ~ 

i~ 1~"`

+.

FOR THE UNITED STATES QF AMERICA

environment and Natural Resources Division

r •_

i~ ~

~~ #'~

r'~~Albe ~ ~'' ~~

Trial Attorney

Michael McNulty

Senior Counsel

Environmental Enforcement Section

Envirorunent and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611

Washington, DC 20044-7611

{202) 514-2$00

Page 37

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 38 of 77
-'

e ' ~~ mw.._ ~_.__.~

Richa~~d ~~lbrgt~~

Dirc;ctc~r, +Office of En~?irc~nn~~ntal. Cl~ant~p

I:.S. L;~~vixc~nmental Pr~tecic~n ~~encti

R~~i~an 1q

1~~0 Six~l~ ~'~~•enue, Site 9fl0

Seattle. ~~'asl~irtgi~c~~~ 98T C~ 1

Assistant R~~ional ~oua~sel

U.S. Enviranr ~ntal ~'ro~ect can Agency,

Revn 10

X200 Sixih Avenge. Siiit~, 90~

~;attle, Vv'as~ain~tt~n ~?8101

I~~~e a8

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 39 of 77
'~`HE IINDFRR.SIG3~ PARTY rota this Co~ssnx D~cre~ ixz tie matter of United States of

Am~ric~ v. Li~rnon Plywood A~socisaion, Civil Action Nss. 3:~4-i~fi2, .z~lating to the Portland

Harbor S r, d Sits.

•r i ►- t R • ~ ••r A s~ f

/rt 11t Y, f ~. v4 - 1 r S .t

fl Y ~! ~ + ~i~ •M.tY 11

~ ~ ~ f ~ i . t

~ • f t ~ • •

A,geaat tkuthorixed to Accept Service on Behalf ofAbove-signed Party:

Name: LPSL Corporate Ssrvices, lnc.

Address: 6fli SW SeCo~d Avenue, Suite 2100, Portland, (7R 97204

Page 38

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 40 of 77
APPENDIX A

Financial Information

TABLE OF CONTENTS

Attached are the documents which comprise Settling Defendants Financial

Information:

+ Correspondence (from William P. Hutchison to Lori Cora) dated October 2, 2009

• Correspondence dated October 30, 2009

o Articles of Incorporation and Bylaws

o October 28, 2009 Order Approving Settlement and Stipulation of Settlement

of t~'eiss, et al. v. Linnton Plywood Association, et al., Multnomah County

Circuit Court for the State of Oregon Case Na 080710423

o Stipulation for Settlement October 2009

0 2009-2010 Property Tax Statement

o Specimen copy of SAFECO's (flkla General Insurance Company of America,

n/k/a Liberty Mutual) policy t

• Correspondence dated March 24, 2010

o Federal TaY Returns 2007 and 2008

o Balance Sheet and Profit &Loss Statement for 2008 and 2009

o October 28, 2009 Order on Joint Motion to Approve Stipulation for

Settlement

o Confirmed and Specimen of Unconfirmed Policies

o Correspondence Related to Confirmed and Unconfirmed Policies

o Financial information regarding debts andlor "Retains" owed to former

member/shareholders of Linnton Plywood Association

~ Correspondence (from Paul George to Lori Cora) dated April 19, 2010

• Correspondence (from William P. Hutchison to Lori Cora) dated June 4, 2010

• Correspondence (from Elia Popovich to Lori Cora) dated June 29, 2010

Date Insurer Policy No.

0 04/23/70 - 04/23/73 General Insurance Co. of America CP 276891

0 04/23/73 - 04/23/76 General Insurance Co. of America CP 383478

0 04/23/76 - 04/23/79 General Insurance Co. of America CP 646638

0 04/23/79 - 04/23/80 General Insurance Co. of America CP 646638-A

0 04/23/80 - 04/23/81 General Insurance Co. of America CP b46638-A

0 04/23/68 - 04/23/70 General Insuarance Co. of America CP 160977

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 41 of 77
• Correspondence {from Mike Farnell to Lori Cora) dated July 28, 2010

o St. Paul Fire c~ Marine Ins. Ca., Inc. v. McCormick & Bc~ter Creosoting Co.,

324 Or 184, 212-15, 923 P2d 1.200 (1996)

o Queen City Farms, Inc. v. Central National Insurance Company of Omaha,

126 Wash2d 50, 44-95, 882 P2d 703 (1995)

• Correspondence (from Mike Farrell to Lori Cora) dated August 30, 2010

+ Correspondence (from William P. Hutchison to Lori Cora) dated September 24,

2010

o LPA Schedule of Estimated Properly Sale Proceeds and Required

Payment/Distribution Obligations

+ Correspondence {from William P. Hutchison to Lori Cora) dated

October 12, 2010

• Correspondence (from William P. Hutchison to Lori Cora) dated October 13,

2010

• Email dated June 8, 2011 {from William P. Hutchison to Lori Cora)

• Correspondence (from William P. Hutchison to Lori Cora) dated September 14,

2011

0 2009, 2010 T~ Returns, including Form 1120-C

o Annual Financial Statements

~ Land Purchase and Sale Agreement, with Amendments l through 3

• Correspondence (from William P. Hutchison to Lori Cora) dated March 20, 2013

Correspondence (from William P. Hutchison to Lori Cora) dated February 25,

2014

o July 26, 2013 Assignment and Assumption of Purchase and Sale Agreement

to Linnton Water Credits, LLC

• Correspondence dated March 3, 2014

o U.S. Income TaY Returns for 2011, 2012, and 2013 (2013 to be provided upon

completion)

o Balance Sheet and Profit &Loss Statements of March 31, 2013, fiscal yearend, and for December 31, 2013, calendar year end.

o Pro forma itemization of current monthly expenses and income dated

February 27, 2014

0 2013-2014 Property Tax Statement

• Correspondence (from William P. Hutchison to Lori Cora) dated March 5, 2014

o CP 646638B Policy 4/23/82 — 7/23/85

o SN Barnes Management —Purchase and Sale Agreement

A-2

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 42 of 77
B-1 

APPENDIX B 

Insurance Information of Linnton Plywood Association (LPA)

TABLE OF CONTENTS 

Attached are the documents which comprise Settling Defendants Insurance 

Information: 

 Excerpt from Report to the Board of Directors dated May 4, 1955 

 Excerpt from Special Meeting of Board of Directors dated August 22, 1955 

 Correspondence (from Dennis W. Keener to Elia Popovich) dated November 24, 

2008 

Confirmed Policies

Policy No: Effective Dates Liab. Form Cond. Form Pollution Exclusion 

CP383478 4/23/73 to 4/23/76 C-10 1/73 C1652 1/73 C1599 1/72 

CP646638 4/23/76 to 4/23/79 C-10 9/74* C1652 5/74* C1599 1/72* 

CP646638A 4/23/79 to 4/23/82 C1138 4/78 C1652 8/78 C1599 1/72 

CP646638B 4/23/82 to 4/23/85 C1138 4/78* C1652 8/78* CGL21201 4/80* 

*Policy forms are unconfirmed. The noted forms are those that were likely to have been issued 

with the referenced policy. 

Unconfirmed Policies

Policy No: Effective Dates Liab. Form Cond. Form Other Pollution Exclusion 

BLP232479 4/23/66 to 4/23/67 C-10 1/65 

CP160977 4/23/67 to 4/23/70 C-10 1/67 CF640 10/66 CF646 10/66 

CP276891 4/23/70 to 4/23/73 C10 1/67 CF640 6/69 CF646 1/67 C-1599 11/70 

(effective 

4/23/71) 

 

 Correspondence dated October 30, 2009 

o Specimen copy of SAFECO’s (f/k/a General Insurance Company of America, 

n/k/a Liberty Mutual) policy 

 Correspondence dated March 24, 2010 

o Copies of all known confirmed liability insurance policies and specimen of 

unconfirmed policies 

o Correspondence related to confirmed and unconfirmed insurance policies 

 Marsh Risk Consulting Statement of Work, July 10, 2014 

o Marsh Risk Consulting Global Insurance Archaeology Services 

 Email (from William P. Hutchison to Lori Cora) transmitting List of Currently 

Known Insurance Policies) dated August 12, 2014 

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 43 of 77
B-2 

 Email (from William P. Hutchison to Lori Cora and Eric Albert) transmitting 

Liberty Insurance Policy Limits information dated October 7, 2014 

 Email (from William P. Hutchison to Lori Cora and Eric Albert) attaching two 

lessee certificates of insurance dated December 19, 2014 

 Email (from William P. Hutchison to Lori Cora and Eric Albert) transmitting 

Index and Additional Insured Certificates (LPA Lessees) dated April 1, 2015 

 Email (from William P. Hutchison to Lori Cora and Eric Albert) transmitting 

Index and Miscellaneous Additional Insured Certificates (generally relating to 

transportation companies making deliveries) dated April 1, 2015 

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 44 of 77
APPENDIX C

Purchase and Sale Agreement (as Amended)

TABLE OF CONTENTS

• Purchase and Saie Agreement between Linnton Plywood Association and SN

Barnes Management, LLC dated September 11, 2012 (n/k/a Linnton Water

Credits, LLC)

o First Amendment to Purchase and Sale Agreement ¢innton Plywood Site —

Portland Harbor) dated December 11, 2012

o Second Amendment to Purchase and Sale Agreement (Linnton Plywood Site —

Portland Harhor) dated December 2?, 2012

o Third Amendment to Purchase and Sale Agreement (Linnton Plywood Site —

Portland Harbor) dated February 1, 20I3

o Fourth Amendment to Purchase and Sale Agreement (Linnton Plywood Site —

Portland Harbor) dated July 18, 2Q 14

• Assignment and Assumption of Purchase and Sale Agreement between SN Barnes

Management, LLC and Linnton Water Credits, LLC dated July 26, 2013

C- I

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 45 of 77
APPENDIX D

Legal Description of Linnton Plywood Association Property

PAItC~I.I;

?7ia foIIawLsg tract of load simatod m Seafacs 2 ~d 3. Township i Natfi. Re~ge 1 Wat of the Wilfnmens Ascsidimy m tLe City of P~tiaad, Lbamy of Mn1h sad State of Ottgac, do~ibocl as ioliawa:

8Pl3II~7NtNt3 u 1Lo Sit ccur~a~ aR the Doat~on Lid pafm of Solomon R3cdat+da No. 47 which polar is tha xsxu~aas+ of 15e c3~at~e ~. wam noaa}ion cams caaim rro. as, n,.aia Sectioa 2: P1aAt r[Y aka$ dx Nw~staiy eztessfon of the d#viaku 3inc bmwaa aa3d i~nnation Laud Ctalm of Salomon Rldmcda and C3cagG O. Watw co a pMnt as the h~bor

linty as noa+ atab#isised, of tfio tVlitunstte Kivu, which. point is She tme point of bcgi~ of tha aaa be~sin 'Y~dc theace Norttiwuter)y ala~g acid hesbw line. to the point of fistersa~daa with tlu oanr~' tine of 'Y." Strad in tlsc 'PO°WN OF L1NDTi'ON if pci~nded in a

.ssiaight 7i~ Hasiuiy; thenw Wsa~iy, aWaB slid eximuSed cerau 8na of "C" Strcq, to the Eeatuiy ]hu of tLc Bmliagtoa Na~thsN Leo. fight of waY iTxace 3otttbetiy along dto Fast line of said right of way, 190 tat to a pvim of intaaociicn with ibe Norttwr}y lirm of the Sartheriy 1S fat of Lot 2, Hlodc 65~ TOV1Ti ~ I1fRSf{IN~ if aaisi tine were Bsstwud; thmx

'1Yeataly along sold extt~dW Northa3y tine. pataitel a~{W the SonWetly Pine ~ said Block 65 to tLo Host Unc oP NSW. St Helens Road; thescn 3oathcrly a3ong dw Easterly llna of ssisi N.W. St Helens Road W an imn pipe on aa~d Eas~uiy tint, which is 549.?A Yeei Swath mid 292.52 fat P.xst &aa t!xi fntaseciioa of 1Le anttz Bnc of i"LW. St. Helans Road wish tLe Dkrtriariy il~e of

N.W. 107th Ate, fo~nedy "C' Suit, in t!m 70WN OA 7.IIVNPON; tlxnoe Nanh 60°42•

F~.aet. 22bAs 4od to a point of intavectloa with du Saa~edy line oC the Hwl'mgton Nonhcn Iac. sight of way; thearo Soatbaty xtong the Bassaly 1im cf said rlgbi of way w t6o point at' in~tion with the iiOatAaty 3inc of that tract of lead wmcycd co Linmoa Aralty ComPenY~ m

O+eBon o~wmUon, m S5~aa1 Oil Company e ~atifomia co~pacation, by Deed cxadsd July B, ]936 In Book 345, Page 154, Dead Rccoadsi dxnoc iVaadsmsterly along fire Nn~itu~iy line of said Sigonl 8i1 Compury Ttact m tlta dubs Ura of ttp W~'ilaaoette RIva; itm~me Nott~aiy sloaghaidiiasborlimto dui t[mpoim~'bcgiaaing.

~xcs~c~ro z~sx~xors ~ roc ot~way orme sucm,~sm, x rte.

AT.so axc;Pxru~G TH~tFlntoi~t it+u portion woo of au s~iir,8son rw,shn„ tmr. ri ft of

ncor r,rty 23, !~ i~ac~ak~zi~Page 26 ~ 

i~u Hlg6way com~aiasloa, by Dxa

AND ~JJt'~HHA G Ti~REFRQM dro owncnd~tp of she Stun of Oieegvn is t4ai

POf[IOT! JyIp~ bC~019 LIIC IIAC Of RlCipl I1~~1 WSlLI IA SIIL Q4tiS0Jl Of fffid Q[D~Cily IDCt1CQ IA $0

$O~0[~fOR RtC~li2d6 ~lD3! T.iSlt~ pS1TR NO. +~ N~ i~iQ 1(~ Ot ~}14.St9t0 0~ Q!'E$Op SA t~6t portfon of ~afd jxnpaty t9~8 bCbw the liaa of 29w water' in the pottioa of bald pmperty loeattd in du Ge+orgal. Watts DonatEoa Lwd Claim Na 46.

PARCBl. A:

A asa of land {n d~ Sotomos► Rlclxcds~ d uz~ Donation Lsmt CSaEm to Sarno 2, 2bwn~ip i

NcAh, ltaw8a !Wert, of tlu WllLmam Ma3diaa, iu sha C4ty of Ptatiead, Coaary of Mn?momaL

wad Sta1a of Oiagon, said past of Iand tying betwaa the Haaeozly !moo of tat Street (now towwm s3 NIori4Wat PtaatAvenue) h1 the Town of Lin, a~ !be Harbor Lfine, as now esublist+ed. Of thn W7Ymfata litver, attd barrow the Hmurty exun~ion of tfia caa~ai~iae of "C" SGeet (now

kapwq ere Northwest 107tI~ Avat~e) in tha Town of LGtaroa wad a tine dawn pars[!cl W cud l0U feet Na~alY of via mcas~d u dgtrt mgias to ffie said Eastcrty axt=~s#on of ttn antect(nc of said "C' Suoet.

HXCEE'TRVG 1HBREPROM-the ceeavaHoa of all of t~ coal, ail. 8s~, eui d Sas a~ all

ones andmiaewls of every kind. ~d mtnm ande~ying tha ~arfecs of tfic ptwntsoo as ma++ed 6y the Spolwae, Portions! and Sesttlt Rsitway Ca~anY a Weshingtoa cos~wm8oa oad 6nrllagtoa

Naat~a Fnc.. a Ddnw~a corporaoun is nxd ~zw~d erhnrary 28, cs9s in Hc~orc 1029. PagC

1716, Mnitncmah Caamy Deed Reeo~s.

At.SO HXCEPTIidG Wes~fivm uWnc~ahiP of the Srote of OregOe fA #hat poctinn Lying blow t6o line of mwa Ian anus of tho R~m~eRiYu.

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 46 of 77
~ ~ i ~_`

Revised Portland Harbor Superfund Site Insurance Recovery Trust

Trust Agreement

Page 44

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 47 of 77
REVISED PORTLAND HARBOR SUPERFUND SITE INSURANCE RECOVERY

TRUST TRUST AGREEMENT

This Trust Agreement ("Agreement") is entered into by, between, and among Linnton

Plywood Association, ("Settling Grantor"), and Daniel J. Silver, an individual {"Trustee°), to

establish the Portland Harbor Superfund Site Insurance Recovery Trust ("Trust").

WHEREAS, Settling Grantor seeks to avoid difficult and prolonged litigation regarding

the Portland Harbor Superfund Site ("Site") and seeks to resolve its potential liabilities to the

United States under the Comprehensive Environmental Response, Compensation and Liability

Act ("CERCLA"), 42 U.S.C. §§ 9601, et seq.

WHEREAS the environmental contamination at the site has resulted in losses and

damages prior to this Agreement.

WHEREAS, Settling Grantor and the United States have entered into an agreement to

settle pursuant to CERCLA, 42 U.S.C. § 9601 et sec ., which includes, among other things,

contribution protection and a covenant not to sue effective upon and given in consideration for, in

part, execution of this Agreement, and Settling Grantor's commitment to comply with this

Agreement.

WHEREAS, Settling Grantor has selected Trustee to be the trustee pursuant to this

Agreement, and Trustee is willing to act as trustee.

WHEREAS, the Trust is created pursuant to, and to effectuate, the Consent Decree.

WHEREAS, the United States alleged that Settling Grantor is liable for, among other

things, response costs and natural resource damages incurred and to be incurred at the Site.

WHEREAS, the Trust is created to allow and accommodate future contributions to the

Trust from future grantors, whether presently known or unknown, to further the purposes set forth

herein and for the benefit and interest of EPA and the Federal Natural Resource Trustees.

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 48 of 77
NOW, THEREFORE, Settling Grantor and Trustee agree as follows:

I. DEFIl~TITI4NS

1. Whenever terms listed below are used in this Agreement, the following definitions

shall apply:

a, "Beneficiaries" shall mean EPA and any successor departments, agencies, or

instrumentalities of the United States, and the Federal Natural Resource Trustees.

b. "DOJ" shad mean the United Staxes Department of Justice and any successor

departments, agencies, or instrumentalities of the United States.

c. "Effective Date" shall mean the date upon which Settling Grantor executes this

Agreement, which execution shall occur after entry by the Court of the Consent

Decree between the United States and Linnton Plywood Association, a copy of

which is attached hereto, but in no event shall such execution occur later than five

(5) days following entry of the Consent Decree.

d, "Environmental Claims" sha11 mean any claim related to the Portland Harbor

Superfund Site for coverage under an Insurance Policy for property damage,

personal injury, or other liability for costs or damages (including Natural Resource

Damages and response costs) arising under any federal or state environmental

law, or common law, from or related to the discharge, dispersal, release, escape

and/or presence of smoke, vapors, fiunes, soot, acids, alkalis, chemicals,

pollutants, contaminants, hazardous substances, or wastes of any kind, or related

to the transportation, generation, disposal, storage, handling, or processing of

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 49 of 77
smoke, vapors, fumes, soot, acids, alkalis, chemicals, pollutants, contaminants,

hazardous substances, or wastes of any kind.

e, "Grantor" or "Grantor(s)" shall mean any person, corporation, business trust,

estate, trust, partnership, limited liability company, association, joint. venture,

government, governmental subdivision, agency, or instnimentality, public

corporation, or any other legal or commercial entity or association, of whatever

fozm, and any successors or assigns, who contributes assets, funds, moneys, rights

under insurance policies, andJor other property to the Trust, whether now or in the

future, and whether presently known or unknown. "Grantor" or "Grantor{s)" shall

expressly include, but is not limited to, the "Settling Grantor" defined below.

f. "Federal Natural Resource Trustees" shall mean, for purposes of this Agreement,

the United States Department of the Interior ("DOI") and the United States

Department of Commerce, acting through the National Oceanic and Atmospheric

Administration ("NOAA"), and any successor departments, agencies, or

instrumentalities of the United States.

g. "Insurance Policies" shall mean all insurance policies under which Settling

Grantor is insured, including, but not limited to policies for which Settling Grantor

~s an "insured," "named insured" or "additional insured," including,. but not limited

to comprehensive, commercial, primary, umbrella and excess policies issued by

Liberty Mutual Insurance Company, or its affiliates, parents, subsidiaries or

predecessors and successors in interest, including, but not limited to General

Insurance Company of America, American States Insurance Company and

SAFECO Insurance Company, and including but not limited to ail policies for

3

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 50 of 77
comprehensive or commercial general liability, excess, excess/umbrella, umbrella,

pollution legal liability, and environmental impairment liability that may have ever

been issued to Settling Grantor and policies otherwise for the benefit of Settling

Defendant. Insurance Policies known at the time of signing this Consent Decree

are listed in E~iibit 1 to this Agreement.

h. "Portland Harbor Superfund Site Insurance Recovery Trust Fund," "Fund," or

"Trust Fund" shall mean the corpus of the Trust established by this Agreement, as

further described herein.

i. "Settling Grantor" shall mean Linnton Plywood Association and any successors or

assigns.

j. "Site" or "Portland Harbor Superfund Site" shall mean the Portland Harbor

Superfund Site, located in the City of Portland, Multnomah County, Oregon that

was listed on the National Priorities List ("NPL") on December 1, 2000, 65 Fed.

Reg. 75179-01. The Portland Harbor Superfund Site consists of the areal extent of

contamination from releases to the lower Willamette River, and also includes

upland source areas. The Portland Harbor Superfund Site Assessment Area

currently covers River Mile 1 to River Mile 12.

k. "Trust" shall mean the Portland Harbor Superfund Site Insurance Recovery Trust.

1. "Trustee" shall mean Daniel J. Silver and any successor trustee.

m. "United States" shall mean the United States of America, including its

departments, agencies, and instrumentalities.

0

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 51 of 77
II, ESTABLISHMENT AND ACCEPTANCE OF TRUST

2. Trust Fund. Settling Grantor and Trustee hereby establish the Portland Harbor

Superfund Site Insurance Recovery Trust Fund (°Fund" or "Trust Fund") for the benefit of

Beneficiaries as stated herein. Each Grantor and Trustee intend that no third parties have access

to the Fund. All property in the Trust, and any and all proceeds therefrom, are intended for the

cleanup and restoration in connection with the Site. The Trust Fund shall consist of all assets,

funds, moneys, and/or other property in the Trust together with ail assets, funds, moneys, rights

under insurance policies, and/or other property received by and transferred to or paid into the

Trust in the future.

3. Objective and Purpose. The purposes and functions of the Trust are 1) to receive

and manage funds, moneys, rights under insurance policies, and/or other property in accordance

with this Agreement for the benefit of Beneficiaries; 2) to pursue monetary recoveries pursuant

to rights under insurance policies, and to pursue such other claims and causes of action as may be

assigned, conveyed, transferred, or arise out of property assigned, conveyed, or transferred, to the

Trust for the benefit of Beneficiaries; and 3) to disburse funds to Beneficiaries in accordance with

this Agreement. The Trust has no objective or authority to engage in any trade or business.

4. Initial Cash Contf-ibution. The Fund shall consist of, without limitation, initial

cash contributions, specified as follows, paid into the Trust by Settling Grantor: Payment in the

amount of $50,000 within thirty (30) days of the Effective Date of the Consent Decree between

Settling Crrantor and the United States .

S. Rights Under insurance Policies.

a. The Fund shall consist of, without limitation, all of the Settling Grantor's rights to

Environmental Claims for payment under the Insurance Policies {both known and

~~

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 52 of 77
unknown), including without limitation any and all potential or actual

Environmental Claims andlor causes of action (including but not limited to causes

of action based in contract, tort, extra-contractual theories, statutory claims,

including but not limited to claims under O.R.S. § 465.484, and claims for

attorney fees and interest) related to the Portland Harbor Superfund Site pursuant

to the insurance Policies, and any proceeds therefrom.

b. In consideration far the Covenant Not To Sue given by the United States in the

Consent Decree attached hereto, which covenant is effective upon and given in

consideration for, in part, this Agreement, Settling Grantor hereby unconditionally

transfers, conveys, and assigns to the Trust all of its rights (including those of its

predecessors, successors, and assigns) to Environmental Claims for payment under

the Insurance Policies (both known and unknown), including without limitation

any and all potential or actual claims and/or causes of action (including but not

limited to causes of action based in contract, tort, extra-contractual theories, and

statutory claims) related to the Portland Harbor Superfund Site pursuant to the

Insurance Policies, and any proceeds therefrom. Settling Grantor shall retain no

rights or residual interest to Environmental Claims for payment under the

Insurance Policies, including without limitation assigned claims and/or causes of

action, and any proceeds therefrom, transferred to the Trust. The Parties intend

that Settling Grantor's transfer, conveyance, and assignment of rights to

Environmental Claims for payment under the Insurance Policies be consistent

with, and provide the Insurance Recovery Trust with the maximum of rights under

the Insurance Polices permitted by, the Oregon Environmental Cleanup Assistance

C~

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 53 of 77
Act, O.R.S. § 465.481 (2013), and, to the extent applicable, O.R.S. § 31.825. For

avoidance of doubt, it is the parties' intention that the Covenant Not To Sue given

by the United States and this assignment of rights given in exchange for that

covenant shall not extinguish any claim in contract, tort, or statute under and in

connection with the Insurance Policies.

c, Settling Grantor hereby unconditionally authorizes the Trust to commence and/or

prosecute pending proceedings, including all potential or actual claims and causes

of actions, and to defend proceedings, in Settling Grantor's name (including its

predecessors' names) in connection with any and all of the rights under Insurance

Policies transferred to the Trust. The parties' expressly intend that the Trust retain

the right to prosecute and defend claims in Settling Grantor's name for the benefit

of the Beneficiaries even in the event any assignment of the Settling Grantor's

rights pursuant to this Agreement is invalidated or deemed void. Recognizing the

complete assignment of Settling Grantor's rights to Environmental Claims for

payment under the Insurance Policies and the associated claims, proceeds, and

causes of action, the Trustee may settle, release, or compromise matters involving

any Insurance Policy and the associated claims, proceeds, and causes of action in

accordance with this Agreement without any need for Settling Grantor's approval

thereof.

d. Settling Grantor acknowledges that, on and after the date it signs this Agreement:

{1) Settling Grantor is not entitled to any of funds obtained by the Trustee on

account of or in connection with any of the rights under Insurance Policies

transferred to the Trust; (2) Except as provided in the Consent Decree and this

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 54 of 77
Trust Agreement, Settling Grantor is estopped from claiming or receiving defense

or indemnity coverage under the Insurance Policies related to the Portland Harbor

Superfund Site; {3) Except as provided in this Consent Decree and this Trust

Agreement, Settling Grantor shall have no rights to make additional

Environmental Claims for payment or pursue existing Environmental Claims for

payment far defense or indemnity under the Insurance Policies. Except as

provided in the Consent Decree and this Trust Agreement, Settling Grantor further

covenants not to assert or claim insurance coverage under the Insurance Policies

related to the Portland Harbor Superfund Site after the date it signs this

Agreement.

e. Settling Grantor shall perform and/or fully cooperate in the following tasks:

i. Complete a diligent, good faith search to identify any evidence of

Insurance Policies (including, but not limited to, a review of

business records, insurance related invoices, Certificates of

insurance, accounting ledgers, correspondence, or any other

insurance related documentation) in which Settling Grantor may

have an interest within thirty (30) days from the Effective Date of

this Agreement, and immediately notify Trustee of the discovery of

any evidence of additional Insurance Policies (even if such

discovery occurs more than thirty (30) days after the Effective Date

of this Agreement);

ii, Take such further actions and execute and deliver such documents

and instruments as may be necessary or appropriate (if any) to

E3

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 55 of 77
transfer and/or assign Settling Grantor's rights to Environmental

Claims for payment under any or all of the Insurance Policies to the

Trust and to authorize the Trust to commence and/or prosecute

pending proceedings, and to defend proceedings, in Settling

Grantor's name (including its predecessors' names) in connection

with any and all of the Insurance Policies.

iii. Cooperate with Trustee's efforts to pursue any and all claims ancVor

causes of action under or related to the Insurance Policies and to

avoid any interference, whether by affirmative act or failure to act,

with Trustee's recovery efforts or management of the Trust and

Fund;

iv. Identify any documents ar sources of documents that, to Settling

Grantor's knowledge, may relate to operations, activities, or

corporate histories of entities that conducted operations at the Site

{"Site Records");

v. Provide Trustee and the Trust's representatives with full access to

Site Records, including the right to inspect and copy any or all of

the Site Records at reasonable times and places. Settling Grantor

shall not destroy any Site Records without giving Trustee at least

ninety (90) days' written advance notice, which shall include a

complete index of all Site Records to be destroyed, and a

reasonable opportunity to inspect and copy any Site Records that

are to be destroyed;

G~

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 56 of 77
vi, Provide Trustee and the Trust's representatives with any other

assistance necessary to accomplish the duties, purposes, and goals

of the Trust, including but not limited to the execution of any

documents associated with the Trust and its recovery activities in a

timely fashion; and

vii. Ensure that the Insurance Policies will remain as undistributed

assets of the Settling Grantor in the event of Settling Grantor's

dissolution.

f. In the event of the dissolution or complete liquidation of the Settling

Crrantor, the provisions of this Paragraph 5 shall survive ,and the Trustee

may assert claims or causes of action contemplated by this Paragraph 5 as

if Settling Crrantor had not dissolved or completely liquidated.

6. Policy Payments. The Fund shall consist of, without limitation, any and all

payments made by any insurer or any other party pursuant to Section IV of this Agreement in

connection with the Insurance Policies including, without limitation, any and all amounts paid by

any insurer or any other party in settlement or satisfaction of claims or rights arising under the

Insurance Policies ("Policy Payments") and any interest, earnings, and profits thereon, less any

payments or distributions made by Trustee pursuant to this Agreement; and

7. Acceptance o, f'Trust. Trustee, by his execution of this Agreement, agrees that he

understands and accepts the Trust established herein, accepts his rights, powers, duties, and

responsibilities as Trustee of the Trust, and agrees to perform his duties and responsibilities as

Trustee of the Trust.

10

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 57 of 77
III. FUTURE GRANTORS) AND FITNDS

8. Future Grantor(s). Trustee shall have authority to permit other and additional

Grantors) to contribute to the Trust and Trust Fund and to enter into subsequent agreements with

future and additional Grantors) binding said Grantors) to the terms of this Agreement.

9. Future Trust Fund Contributions. Trustee shall have authority to accept, without

limitation, assets, funds, moneys, rights under insurance policies, and/or other property, of

subsequent Grantors) to be added to the Trust Fund artd to manage the same as a single

undivided corpus without regard to the percentage or form of contribution from any current ar

futuxe Grantor(s), whether presently known or unknown. Nothing in this Agreement should be

construed to limit the type, form, amount, or character of any assefs, funds, moneys, rights under

insurance policies, andlor other property, whether real, personal or otherwise, that Trustee may

accept in Trust, in his discretion, and control and manage in accord with the terms of this

Agreement.

10. Single Trust. Unless the terms of any separate trust document expressly indicate

otherwise, future contributions to the Trust by future Grantor(s), accepted. by Trustee, sha11 not

create a new trust but shall vest in this Trust and Trust Fund and add to the single Fund created by

this Agreement.

IV. TRUSTEE AUTHORITY

11. Pursuit and Liquidation of Claims. Trustee shall have broad discretion and

authority to take such actions as Trustee deems necessary or appropriate to pursue claims,

payments, and proceeds for the Trust. Trustee is expressly authorized and empowered to take

such actions as Trus#ee in hip di~cr~tion deems nec~~~ary or ~ppropri~te to pursue applicable

claims. Trustee shall pursue applicable claims with the skill, diligence, prudence, and care that a

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similarly situated individual, acting in a like capacity and familiar with such matters, would

pursue claims of a like character and with like aims. Without limiting Trustee's general discretion

and authority granted pursuant to this Section, Grantors) and Trustee agree that Trustee sha11

have the authority to:

a. negotiate, settle, release, compromise, or otherwise adjust all claims, policies, and

payments arising under or in connection with the trust assets, including but not

limited to the Insurance Policies and other legal claims;

b. engage such outside legal counsel, consultants, accountants, and other independent

advisors as Trustee deems necessary or appropriate; compensate, or arrange or

agree to compensate, such persons, using Trust proceeds;

c. make, execute, acknowledge, and deliver any and all documents of transfer and

conveyance and any and all other instruments that may be necessary or appropriate

to carry out the powers herein granted; compromise, liquidate, or otherwise adjust

all claims and Trust assets in favor of, or against, the Fund; sell, dispose of, or

liquidate all Trust assets in favor of the Fund;

d. purchase and maintain insurance coverage covering Tn~stee's personal liability for

any acts or omissions in his capacity as Trustee and any other insurance products

that are reasonable and appropriate to protect Trustee from personal liability.

12. Payments, f -om the Fund. Trustee sha11 have authority to make such payments and

distributions from the Fund as set forth and prescribed in Section VII below.

13. General Authority. Trustee shall have such further authority as provided by law

and this Agreement.

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~i~1 ~ ~Z17.~I liu:/~►~l~~u ~ ~~I

14. investing Trust Assets. Consistent with the liquidity needed to make payments

authorized or required by this Agreement, Trustee shall invest the income of the Fund in liquid

investments only. Trustee shall be under no liability for interest or producing income on any Fund

assets. Investments are limited to demand and time deposits, such as certificates of deposit, in

banks or other savings institutions whose deposits are federally insured, and other liquid

investments, such as Treasury bills.

15. Checking Account. Consistent with the liquidity needed to make payments

authorized or required by this Agreement, the Trustee may deposit and maintain Trust funds in a

checking account, provided that 100% of any such deposit, account, or other obligation is insured

by FDIC or FSLIC.

16. Trustee's Other Trust Management Duties. Trustee shall discharge his duties

regarding the Fund solely in the interest of Beneficiaries and with the care, skill, prudence, and

diligence under the circumstances then prevailing that persons of prudence, acting in a like

capacity and familiar with such matters, would use in the conduct of an enterprise of a like

character and with like aims, consistent with the duties of a fiduciary. Notwithstanding any other

provision of this Agreement, Trustee shall not take actions that cause Grantors) to incur any

personal financial liability.

17. Management of Trust Funds and Assets. The Trust Fund shall represent a single

indivisible Fund irrespective of the identity or number of any current or future Grantor(s), and

Trustee shall expressly be permitted, in his discretion, to hold and co-mingle all assets, funds,

moneys, andlor other property granted by any current or future Grantors) in a single Fund held

far the benefit and interest of Beneficiaries,

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VI, TAXES AND E~'ENSES

18. All tomes of any kind that maybe assessed or levied against, or in respect of, the

Fund shall be paid solely from the Fund. The compensation of Trustee and ail other expenses

incurred by Trustee in connection with the administration of this Trust shall be paid solely from

the Fund.

19. Grantor Environmental Trust. For federal income ta~~ purposes only, the Trust

hereby established is intended to be an environmental remediation trust as described in U.S.

Treasury Regulation § 301.7701-4(e). The Trust shall have no purpose in generating income or

profit other than income generated by temporary investment of Trust assets, which income shall

be incorporated into the corpus of the Trust and used exclusively for Trust purposes. The Trust

has been organized with no objective to continue or engage in the conduct of a trade or business.

VII. PAYMENTS FROM THE FUND

20. Payments of Professional Fees and Expenses by Trustee. Trustee shall make

payments from the Fund to compensate or reimburse Trustee and persons or entities engaged by

Trustee pursuant to Section IV of this Agreement. Additionally, pursuant to the preceding

Section, Trustee shall make payments from.the Fund for ta~~es and expenses. Upon payment to

third parties pursuant to this paragraph, such funds shall no longer constitute part of the Fund as

defined herein.

21. Disbursement Instructions for Distributions to the Beneficiaries. Trustee sha11

make all disbursements from the Fund 75% to EPA and 25% to the Federal Natural Resource

Trus#ees.

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22. Threshold Fund Maintenance. Trustee shall be entitled to retain in the Fund, in his

discretion, up to $50,000 to further the Trust's purposes as set forth herein, which amount may be

withheld from disbursement.

23. Notice; Disbursement Payments from Fund. Within fifteen {15) days of receipt of

Policy Payments exceeding $50,000, or when the value of the Fund exceeds $75,000, Trustee

shall notify Beneficiaries in writing. Within fifteen (15) days of providing the above notice,

Trustee shall pay the balance of the Fund, less $50,000 plus reasonable amounts for anticipated

expenses, to Beneficiaries in accordance with Paragraph 21.

24. Direct Disbursement Payments to Beneficiaries. Trustee shall make all payments

to EPA by federal electronic funds transfer ("EFT") into the Portland Harbor Special Account

within the EPA Hazardous Substance Superfund, or as otherwise provided by EPA, consistent

with written instructions provided by EPA. EPA may retain or use funds received from, or on

behalf of, the Trust and deposited into the Portland Harbor Special Account to conduct or finance

response actions at or in connection with the Site, or transfer all or any portion of such funds to

the EPA Hazardous Substance Superfund. Trustee shall make all payments to the Federal Natural

Resource Trustees for the Site by federal electronic funds transfer ("EFT") to NRDAR Account

No. 14X5198, or as otherwise provided by the Federal Natural Resource Trustees, consistent with

written instructions provided by the Federal Natural Resource Trustees. The Federal Natural

Resource Trustees may retain or use funds received from, or on behalf of, Grantors to conduct or

finance restoration activities in connection with the Site.

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:.i _ i I'

25. Except as provided in Section II, Grantors sha11 have no rights, responsibilities, or

obligations pursuant to this Agreement. Grantors have no residual interest or entitlement to the

Fund, Trust proceeds, or any proceeds of Trust assets.

IX. INSPECTION OF RECORDS, AUDITS, AND REPORTING

26. Accounting Records and Audits. Trustee shall keep or cause to be kept. proper

books, records, and accounts of all transactions relating to the Trust in such form as will enable

Trustee to produce all reports and accountings and to submit to any audit required pursuant to this

Agreement. If requested by Beneficiaries, Trustee shall make available all Trust books and

records, including accounting records, to Beneficiaries for inspection within five (5) days of

Beneficiaries' request. Upon request by Beneficiaries, and in any event in advance of the

intended termination of the Trust, Trustee shall arrange for an independent accounting audit and

shall furnish Beneficiaries with the report and any other documents prepared by the independent

accounting auditor.

27. Semi Annual Reports. On February 1 and July 1 of each year, the Trustee shall

provide Beneficiaries with asemi-annual report summarizing the financial status and activities of

the Trust in the six (6) months prior to January 1 and June 1 of that year, respectively. At a

minimum, each semi-annual report shall include a beginning and ending statement of Trust Fund

balances, expenses incurred since the last semi-annual report, recoveries obtained andlor property

received by the Trust since the last semi-annual report, a statement of accounts payable and

accounts receivable as of the end of the reporting period, and a brief status report regarding any

claims or causes of action being pursued.

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X. ADVICE OF COUNSEL

28. Trustee may at any time consult with counsel with respect to any issue regarding

construction of this Agreement, or any action to be taken pursuant to the Agreement. To the

extent permitted by law, Trustee shall not be liable for actions taken on advice of counsel.

XI. TRUSTEE COMPENSATION

29. Trustee sha11 be entitled to compensation for his services on a basis in the amount

listed in E~ibit 2, which Grantors and Trustee agree constitutes a reasonable fee as of the date of

this Agreement.

XII. RESIGNATION, REMOVAL, AND SUCCESSOR TRUSTEE

30. Term of Trustee. Trustee shall serve for a term of five (5) years. Trustee shall

automatically be reappointed to subsequent five-year terms unless, no less than ninety (90) days

prior to the end of the current term, Beneficiaries notify Trustee that Trustee will not be

reappointed.

31. Resignation of Trustee. Trustee may resign at any time, with or without cause, and

without the necessity of any court proceeding, by giving not less than sixty (60) days prior

written notice to Beneficiaries. Such resignation shall take effect on the date set forth in the

resignation notice, which shall be a date not less than sixty (60) days after the date Trustee

submits the resignation notice to Beneficiaries, unless a successor Trustee is appointed sooner

pursuant to Paragraph 33 of this Agreement, in which event such resignation shall take effect

immediately after the appointment and acceptance of the successor Trustee.

32. Removal of Trustee. Notwithstanding any other provision of this Agreement,

Trustee may be removed at an.y time, with or without cause, and without the necessity of any

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court proceeding, pursuant to an instrument executed by the EPA Region 10 Director of the

Office of Environmental Cleanup or his designee, or to his successor, and delivered to Trustee.

33. Successor Trustee. If Trustee resigns, is removed, is not reappointed for a

subsequent term, or otherwise ceases to act as Trustee, a successor Trustee shall be appointed

pursuant to an instrument executed by Beneficiaries without the necessity of any court

proceeding. The successor Trustee, by its execution of an addendum to this Agreement, agrees

that the successor Trustee understands and accepts the Trust established by this Agreement,

accepts the rights, powers, duties, and responsibilities set forth in this Agreement, and agrees to

perform Trustee's duties in accordance with this Agreement.

34. Transfer to Successor Trustee. Every successor Trustee appointed pursuant to the

preceding paragraph shall execute and deliver to his predecessor an instrument accepting his

appointment. Thereupon, such successor Trustee, without any further act, deed, or conveyance,

shall become fully vested with all the estates, rights, powers, title to Trust assets, trusts, duties,

and other Trustee obligations pursuant to this Agreement. Nevertheless, upon written request of

the successor Trustee, such predecessor Trustee sha11 execute and deliver an instrument

transferring to such successor Trustee all the estates, rights, powers, title to Trust assets, trusts,

duties, and other obligations of such predecessor Trustee pursuant to this Agreement, and every

predecessor Trustee shall deliver all assets and records of the Trust held by him to his successor;

provided, however, that before any such delivery is required or made, all allowable fees and

expenses of any such predecessor Trustee shall be paid in full. If payment of any'fees or expenses

is disputed, predecessor Trustee shall not withhold delivery of any undisputed assets to successor

Trustee.

1$

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XIII. NOTICES

35. Whenever, pursuant to the terms of this Agreement, written notice or

communications are required or authorized, or a report or other document is required or

authorized to be sent, the written notice, document, or communication shall be directed to the

individuals at the addresses specified below, unless those individuals or their successors give

written notice of a change. All notices and submissions shall be considered effective on receipt,

unless otherwise provided.

a. As to Beneficiaries:

EPA

Lori Houck Cora

Assistant Regional Counsel

Office of Regional Counsel

U.S. Environmental Protection Agency Region 10

ORG158

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101

Kristine Koch

Remedial Project Manager

Office of Environmental Cleanup

U.S. Environmental Protection Agency Region 10

ECL 115

1200 Smith Avenue, Suite 900

Seattle, Washington 98101

Director, Office of Environmental Cleanup

Region 10 United States Environmental Protection Agency

1200 Sixth Avenue, ECL-111 Seattle, Washington 98101

Federal Natural Resource Trustees

Katherine A. Pease

NOAA Office of General Counsel

Suite 4470, 501 West Ocean Boulevard

Long Beach, CA 90802

Deirdre F. Donahue

Attorney-Advisor

19

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Office of the Solicitor

U.S. Department of the Interior

805 SW Broadway, Suite 60Q

Portland, OR 97205-3346

b. As to Trustee:

Daniel J, Silver

606 Columbia St. NW

Olympia, WA 98501

c. As to Crrantor:

Jimmy Stahly, General Manager

Linnton Plywood Association

10304 NW St. Helens Road

Portland, OR 97231

XIV. IRREVOCABILITY AND TERMINATION

36. Irrevocability of Trust. The Trust is irrevocable. Grantors retain no equitable,

legal, beneficial, or residual interest in the Trust.

37. Termination of Trust. This Trust shall continue until, and Trustee sha11 terminate

this Trust within thirty (30) days after, in the judgment of Beneficiaries, (1) all claims against

Trustee in his individual and official capacity have been resolved; (2) Trustee has made all valid

claims based on the Insurance Policies and received all proceeds based on the Insurance Policies,

or until the remaining valid claims based on the Insurance Policies are no longer worthwhile of

further recovery efforts; (3) Trustee has made all remaining valid legal claims assigned to the

Trust and received any proceeds from such claims, or until the remaining valid claims are no

longer worthwhile of further recovery efforts; and (4) Trustee has paid all expenses and

obligations of the Trust. Upon termination of the Trust, Trustee shall liquidate all remaining Trust

property, pay all final Trust administration expenses, and distribute the remaining balance of the

Trust to Beneficiaries in accordance with Paragraph 20.

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XV. AMENDMENT AND MODIFICATION

38. The Trust may be amended or modified in order to further the material purposes of

the Tzust as follows:

a. amendments or modifications sha11 be valid only if made pursuant to a written

instrument agreed to and signed by Trustee and Beneficiaries;

b. amendments or modifications to the Trust shall be deemed effective upon the date

of mutual execution by Trustee and Beneficiaries, unless the terms of the

amendment or modification expressly provide otherwise;

c. amendments or modifications to the Trust shall be incorporated into this

Agreement and be binding on all future Grantors) and Trustees) and

Beneficiaries;

d. amendments or modifications of the Trust may be done without notice to or

consent of Grantor{s) and without the necessity of court intervention or approval;

e. The dissolution of any Grantor (including, but not 1united to, Settling Grantor)

shall not modify this Agreement or alter the rights, duties, or assets of the Trust,

Trustee, or Trust Fund in any way except as otherwise provided herein.

XVI. IMMUNITY AND INDEMNIFICATION

39. No Liability of Beneficiaries. Notwithstanding any other provision of this

Agreement, the United States, including without limitation Beneficiaries, shall not be liable to the

Trust, Trustee, or Grantors for any damages or payments whatsoever arising out of matters

related to the Trust, and Trustee shall not have power to sue the United States, including without

limitation Beneficiaries, in any forum except for the purpose of enforcing the terms of this

Agreement.

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40. Extent of Liability of Trustee. Trustee shall not be liable far his acts, omissions, or

defaults, regardless of whether or not occasioned by the negligence of Trustee, nor for the acts,

omissions, or defaults of any agent or depository employed, appointed, or selected by Trustee,

except for such Trustee's own acts, omissions, or defaults occasioned by the gross negligence or

willful misconduct of such Trustee. Trustee shall not be responsible for the acts or omissions of

any predecessor Trustee nor, in particular, shall Trustee be liable for such predecessor Trustee's

exercise or nonexercise of any power or discretion properly delegated pursuant to this

Agreement.

41. Indemnification of Trustee. To the extent of Trust assets only, the Trust shall

indemnify, hold harmless, and defend, to the extent allowed by law, Trustee from any personal

liability to which Trustee may be subjected by reason of any act or omission in Trustee's official

capacity, including all expenses reasonably incurred in Trustee's defense. This provision shall not

apply with respect to gross negligence or willful misconduct by Trustee.

42. Survivorship of Protections. Notwithstanding any other provision of this

Agreement, the terms and conditions of Paragraphs 38, 39, and 40 of this Agreement shall

survive the termination of the Trust, and the protections in Paragraphs 38, 39, and 40 of this

Agreement may not be altered, amended, or revoked without the consent of Beneficiaries and

Trustee of the protections set forth in each respective paragraph.

43. No Bond or Insurance Required. No bond or other security shall be exacted or

xequired of any Trustee appointed by this Agreement.

XVII. CHOICE OF LAW

44. This Agreement shall be administered, construed, and enforced according to the

laws of the State of Oregon.

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XVIII. MISCELLANEOUS

45. Headings. Headings to sections and paragraphs of this Agreement are included. for

the convenience of reference only and shall be disregarded. in the construction and interpretation

of any of the provisions of this Agreement.

46. Particular Words. Any word contained in the text of this Agreement shall be read

as singular or plural and masculine, feminine, or neuter, as may be applicable or permissible in

the particular context. The word "person" shall include an individual, partnership, association,

company, corporation, or municipal corporation.

47. Preservation of Privilege. In connection with the rights, claims;and causes of

action assigned, conveyed, or transferred to the Trust, any attorney-client privilege, work-product

privilege, or other privilege or immunity attaching to any documents or communications (whether

written or oral) related to the Trust or the assets assigned, conveyed, or transferred to the Trust

including, but not limited to, rights under the Insurance Policies, legal claims, and all related and

unrelated assigned claims) shall vest in the Trust and its representatives, and the parties are

authorized to take all necessary actions to effectuate the transfer of such privileges.

48. Disputes; Jurisdiction of Court. All disputes arising between or among Trustee,

Grantors, or Beneficiaries that cannot be resolved informally shall be resolved in the United

States District Court for the District of Oregon. Trustee and Grantors agree to, and accept the

jurisdiction of, the United States District Court for the District of Oregon for this purpose.

49. Complete Agreement. This Agreement contains the final expression and the

complete and exclusive statement of the terms of the Agreement between the parties with respect

to the subject matter hereof and supersedes all prior and contemporaneous oral and written

representations, understandings and agreements between them with respect thereto.

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24 

50. Authorized Signatories. Each person signing this Agreement represents and 

warrants that he or she is duly authorized to enter into this Agreement by the entity on whose 

behalf the person is signing. Each person signing this Agreement has consulted or had the 

opportunity to consult independent legal counsel regarding the effect of this Agreement and 

understands the legal ramifications of entering into this Agreement. 

51. Effective Date. The effective date of this Agreement shall be Effective Date as 

defined in Paragraph 1.c of this Agreement. 

52. Severability. If any provision of this Agreement, or its application to any person in 

any circumstances, is deemed invalid or unenforceable by a court of law, the application of such 

provision to other persons and in circumstances other than those to which the provision is deemed 

to be invalid or unenforceable, and the other provisions of this Agreement, shall not be affected 

by such invalidity or unenforceability. 

 

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 71 of 77
~~

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 72 of 77
THE UNDERSIGNED PARTY enters into this PORTLAND HARBOR SUPERFUND SITE INSURANCE RECOVERY TRUST TRUST AGREEMENT

FOR DEFENDANT LINNTON PLYWOOD ASSOCIATION

Date:

Jimmy Stahly, General Manager

Linnton Plywood Association

10304 NW St. Helens Road

Portland, OR 97231

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

Name: LPSL Corporate Services, Inc._

Address: 601 SW Second Avenue, Suite 2011, Portland, OR 97204

26

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27

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 74 of 77
THE UNDERSIGNED PARTY enters into this PORTLAND HARBOR SUPERF'UND SITE

INSURANCE RECOVERY TRUST TRUST AGREEMENT

FOR TRUSTEE Daniel J. Silver

Date:

60b Columbia St. NW

Suite 212

Olympia, WA 98501

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

Name:

Title:

Address:

►~:j

Case 3:14-cv-01772-MO Document 33-1 Filed 04/10/15 Page 75 of 77
EXHIBIT 1

[insert known insurance policies under which rights will be assigned]

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..

Trustee Compensation

Trustee's compensa#ion is set at $175 per hour. Trustee may propose increases to the above-set

compensation no more frequently than annually, which proposed increases shall be negotiated in good

faith between Trustee and Beneficiaries. Trustee shall further be reimbursed for actual travel. expenses

including mileage) and direct costs associated with administration of the Trust.

30

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