ATTACHMENT E

Case 3:14-cv-01772-MO Document 33-5 Filed 04/10/15 Page 1 of 5
VIA ELECTRONIC MAIL 

January 8, 2015 Direct Line: (503) 415-6090

Facsimile: (503) 548-5741 

 Email: David.Ashton@portofportland.com

Eric Albert, Esq. 

Eric.Albert@usdoj.gov

Environmental Enforcement Section 

Environment and Natural Resources Divisions 

United States Department of Justice 

P.O. Box 7611 

Washington D.C. 20044-7611 

Re: United States v. Linnton Plywood Association, D.J.

Reference No. 90-11-2-06787/3; Docket Number: 2014-27074 

Dear Eric: 

The Port of Portland, Union Pacific Railroad Company, TOC Holdings, Inc., NW 

Natural, Gunderson LLC, ConocoPhillips Co., City of Portland, Chevron U.S.A. Inc., and 

Arkema Inc. submit these comments on the United States’ proposed settlement with Linnton 

Plywood Association lodged November 7, 2014 in the United States District Court for the 

District of Oregon, Case No 3:14-1772. These comments are submitted without prejudice to the 

submitting parties’ right to submit additional comments on the adequacy of the proposed consent 

decree by the deadline, either individually or with others. 

The Port of Portland, Union Pacific Railroad Company, TOC Holdings, Inc., NW 

Natural, Gunderson LLC, ConocoPhillips Co., City of Portland, Chevron U.S.A. Inc., and 

Arkema Inc. are parties that entered into an Administrative Settlement Agreement and Order on 

Consent For Remedial Investigation/Feasibility Study at Portland Harbor (U.S. EPA Docket 

Number CERCLA-10-2001-0240) with Region 10 of the United States Environmental Protection 

Agency and a Consent Judgment with the State of Oregon through the Department of 

Environmental Quality, resolving their liability to EPA and the State in return for agreeing to 

perform the remedial investigation and feasibility study of the in-water sediments and surface 

water of the Portland Harbor Superfund Site. 

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Eric Albert, Esq. 

January 8, 2015 

Page 2 

These comments are submitted in order to assure internal consistency within and across 

the proposed Consent Decree and the attached proposed Trust Agreement. 

Accuracy of Citations to Oregon Law Governing Non-Profit Corporations

Proposed Consent Decree (“CD”) p. 4, ¶ 2’s reference to ORS 65.637 should be modified to, at a 

minimum, ORS 62.708 or, better yet, ORS Chapter 62. 

CD p. 16, ¶ 9.g’s reference to ORS 65.637 should be modified to, at a minimum, ORS 62.708 or, 

better yet, ORS Chapter 62. 

Consistency With Language of CD Recitation E. That Settlement Covers Policies “issued 

to, or for the benefit of Settling Defendant which may provide coverage”

CD p. 6, ¶ 3.m’s definition of “Insurance Policies” as “all insurance policies issued to Settling 

Defendant” should be modified by the following bolded language to “all insurance policies 

under which Settling Defendant is insured” and the immediately ensuing “including, but not 

limited to” list should end with “and policies otherwise for the benefit of Settling 

Defendant.” 

Proposed Trust Agreement (“TA”) p.3, ¶ 1.g’s definition of “Insurance Policies” should be 

modified in the same way. 

Reference to Commencement Date for Releases

CD p. 10, ¶ 5: Consistent with Linnton Plywood Association’s incorporation in 1951, the two 

references in this paragraph to “in connection with the release or threatened releases of 

hazardous substances at the Site beginning in 1954 and continuing thereafter during Defendant’s 

ownership and operations at the Property” should be changed by the following bolded language 

to: ““in connection with the release or threatened releases of hazardous substances at the Site, 

including those beginning in 1954 1951 and continuing thereafter during Defendant’s ownership 

and operations at the Property.” 

Consistency with Intent of Settlement that the Trust, if needed, can prosecute claims in 

LPA’s name

CD p. 14, ¶ 9, should be modified by the following bolded language to state: 

“(2) Except as provided in this Consent Decree and the Trust Agreement, Settling Defendant 

shall be estopped from claiming or receiving defense or indemnity coverage ...; and (3) Except 

as provided in this Consent Decree and the Trust Agreement, Settling Defendant shall have 

no rights to make additional Environmental Claims ... .” 

and, following that, still in ¶ 9: 

Case 3:14-cv-01772-MO Document 33-5 Filed 04/10/15 Page 3 of 5
Eric Albert, Esq. 

January 8, 2015 

Page 3 

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

further covenants not to assert or claim insurance coverage ... .” 

The same modifications should be made to the Trust Agreement: 

TA, pp. 7 ¶II.5.d lines 20-23: 

“(2) Except as provided in the Consent Decree and this Trust Agreement, Settling Grantor is 

estopped from claiming or receiving defense or indemnity coverage ...; and (3) Except as 

provided in the Consent Decree and this Trust Agreement, Settling Grantor shall have no 

rights to make additional Environmental Claims ... .” 

and, following that, still in ¶II.5 at p. 8. lines 1-4: 

“Except as provided in the Consent Decree and this Trust Agreement, Settling Grantor 

further covenants not to assert or claim insurance coverage ... .” 

CD p. 15 ¶ 9.c. Conform the cooperation language to the intended scope of the settlement by 

modifying the provision by the addition of the following bolded language: 

“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.” 

Make the same changes in the Trust Agreement, p. 9, paragraph 5.e.iii. 

CD p.16, ¶ 9(g)’s intent should be clarified by substituting for the current language: 

“The provisions of this Paragraph 9 shall survive in the event of the complete liquidation of 

the Settling Defendant to the maximum extent permitted by O.R.S. § 65.637(2)(d) and (e).” 

the following bolded language: 

“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 as if Settling Defendant had not 

dissolved or completely liquidated.” 

Not a De Minimis Settlement 

To conform the Trust Agreement to the intent of the Consent Decree, TA, p. 1, third “Whereas” 

clause: the language “pursuant to Section 122(g)(7) of CERCLA” should be modified to read 

“pursuant to CERCLA.” 

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Eric Albert, Esq. 

January 8, 2015 

Page 4 

Matching Language Regarding Sequence of Entry of Consent Decree Followed By 

Assignment 

CD, p. 19, ¶16 line 22: “which rights are assigned” should be modified to “which rights will be

assigned ... .” 

Trustee 

TA, p. 4, ¶ I.1. identify “Daniel J. Silver” as the Trustee. 

Clarity on Trust Intent

TA p. 6 ¶ 5.b: modify the last three words of this first sentence from “... and proceeds 

therefrom” to “... , and any proceeds therefrom.” 

Defined Term 

TA p. 7, ¶ c, line 11: The phrase “environmental claims” should be modified to the defined term 

“Environmental Claims.” 

Thank you for considering these comments. 

Sincerely, 

David Ashton 

Assistant General Counsel 

Port of Portland 

cc: Steve Parkinson 

 Max Miller 

 Nicholas van Aelstyn 

 Jerry George 

 Nanci Klinger 

 Patricia Dost 

 Tod Gold 

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