ATTACHMENT B

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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

______________________________ 

 ) 

UNITED STATES OF AMERICA, ) 

 ) 

 Plaintiff, ) 

 ) Civil Action No. ___________ 

v. ) 

) Judge ____________________ 

LINNTON PLYWOOD ) 

ASSOCIATION, )

)

 Defendant. ) 

______________________________ ) 

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 § 65.637(2)(d) and (e),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 shall 

apply: 

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

Compensation, and Liability Act of 1980, 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” shall mean those financial documents identified in 

Appendix A. 

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j. “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. § 9607(a). The 

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

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

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, and/or 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. 

l. “Insurance Information” shall mean those insurance documents identified 

in Appendix B. 

m. “Insurance Policies” shall mean all insurance policies issued tounder 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 

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Settling Defendant. and 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 taxes owed on the Property and Sale proceeds. 

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

Arabic numeral or an upper or lower case letter. 

r. “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 this 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 

Perce Tribe. 

v. “Property” shall mean Linnton Plywood Association’s 26.5 acres located at 

10504 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 

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

appropriate land records office. 

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. § 9601(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 

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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 

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 19541951 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 19541951

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. 

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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 

Property 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. 

c. 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 

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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; 

(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 Water 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 

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

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

thereof that was sold. 

8. Payment Instructions for all Payments. 

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. 

c. 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 Site/Spill 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 

 1849 C Street, NW 

 Mailstop 3548 

 Washington, D.C. 20240 

For 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 shall 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 Superfund Site under the Insurance Policies after the date 

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it signs the Trust AgreementRevised 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 30 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 may be necessary or appropriate (if any) to transfer and/or assign Settling 

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

AgreementRevised 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 Trust 

AgreementRevised 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”); 

e. 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. The provisions of this Paragraph 9 shall survive inIn the event of the 

dissolution or complete liquidation of the Settling Defendant to, the maximum extent permitted 

by O.R.S. § 65.637(2)(d)provisions of this Paragraph 9 shall survive, and (e).the Trustee may 

assert claims or causes of action contemplated by this Paragraph 9 and by the Trust 

AgreementRevised 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 

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such funds to the EPA Hazardous Substance Superfund. 

 VIII. FAILURE TO COMPLY WITH CONSENT DECREE 

11. Interest on Late Payments. 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 

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 XVI. (Notices and 

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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 45268 

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 costs 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. 

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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 

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 waters in the 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 

all 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 

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Page 20 

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 

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 arewill 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: 

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

Consent Decree; 

b. criminal liability; 

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 to 

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, 

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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.

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 or 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 113 of CERCLA, 42 U.S.C. 

§§ 9606(b)(2), 9607, 9611, 9612, 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 

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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 

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 limited 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 113(f)(2) and (3) of 

CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue any such persons to obtain additional response 

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

contribution protection pursuant to Section 113(f)(2). 

24. The Parties agree, and by entering this Consent Decree this Court finds, that this 

settlement constitutes a judicially-approved settlement for purposes of Section 113(f)(2) of 

CERCLA, 42 U.S.C. § 9613(f)(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 

113(f)(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 

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

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

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, res judicata, collateral estoppel, issue preclusion, 

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

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

provided, however, that nothing in this Paragraph affects the enforceability of the 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: 

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

the Site; 

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

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(3) Conducting investigations relating to contamination at 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, integrity or protectiveness of the remedial measures to be performed at the Site. 

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c. 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 so 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; 

and 

(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 

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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. 

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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 land/water 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 

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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. 

XV. RETENTION OF RECORDS 

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 

or 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. 

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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 its 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 

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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 

U.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 

ORC-158 

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: 

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Page 33 

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 

 

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As to Settling Defendant: 

Linnton Plywood Association 

10504 NW St. Helens Rd. 

Portland, OR 97231 

And 

Lane Powell 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) 

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c. Linnton Plywood Association and Linnton Water Credits, LLC Purchase 

and Sale Terms 

d. Legal Description of Linnton Plywood Association Property 

e. 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. 

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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 summons. 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. 

XXI. FINAL JUDGMENT 

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 

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

name and civil action number], relating to the Portland Harbor Superfund Site. 

FOR THE UNITED STATES OF AMERICA 

 _____________________________ 

Sam HirschJohn C. Cruden

Acting Assistant Attorney General 

Environment and Natural Resources Division 

 _____________________________ 

Eric Albert 

Trial Attorney

Michael McNulty 

Senior Counsel

Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

P.O. Box 7611 

Washington, DC 20044-7611 

(202) 514-2800 

Case 3:14-cv-01772-MO Document 33-2 Filed 04/10/15 Page 38 of 75
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__________________________________ 

 [Name] 

 Rick Albright 

Director, Office of Environmental Cleanup 

U.S. Environmental Protection Agency 

Region 10 

 1200 Sixth Avenue, Suite 900 

 Seattle, Washington 98101 

 

 ___________________________________ 

 [Name] 

Lori Houck Cora 

Assistant Regional Counsel 

 U.S. Environmental Protection Agency 

 Region 10 

 1200 Sixth Avenue, Suite 900 

 Seattle, Washington 98101 

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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of [insert case 

name and civil action number], relating to the Portland Harbor Superfund Site. 

FOR DEFENDANT LINNTON PLYWOOD ASSOCIATION 

Date: _______________________________________ 

[Names and addresses of Defendant=s signatories] 

Agent Authorized to Accept Service on Behalf of Above-signed Party: 

Name: 

Title: 

Address: 

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APPENDIX A 

Financial Information

Attached is the index of documents which comprise Settling Defendants Financial Information: 

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APPENDIX B 

Insurance Information

Attached is the index of documents which comprise Settling Defendants Insurance Information: 

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APPENDIX C 

Purchase and Sale Agreement (as Amended)

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APPENDIX D 

Legal Description of Linnton Plywood Association Property

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APPENDIX E 

Revised Portland Harbor Superfund Site Insurance Recovery Trust 

Trust Agreement 

 

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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 Section 122(g)(7) of CERCLA, 42 U.S.C. § 9622(g)(7),9601 et seq., 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. 

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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. 

NOW, THEREFORE, Settling Grantor and Trustee agree as follows: 

I. DEFINITIONS 

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'' shall mean the United States 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" shall 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 

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and/or presence of smoke, vapors, fumes, 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 

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 instrumentality, public 

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

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

under insurance policies, and/or 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 issued tounder which

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

Grantor 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, 

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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 Grantor. and policies otherwise for the benefit of Settling 

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

are listed in Exhibit 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. 

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

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

departments, agencies, and instrumentalities. 

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 all 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 Contribution. 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 Grantor and the United States . 

5. Rights Under Insurance Policies. 

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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 

unknown), including without limitation any and all potential or actual 

Environmental Claims and/or 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 for 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 

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

the Insurance Polices permitted by, the Oregon Environmental Cleanup Assistance 

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 

claimsEnvironmental 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 

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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 

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 for 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); 

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

and instruments as may be necessary or appropriate (if any) to 

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 Environmental 

Claimsany 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 Fund; 

iv. Identify any documents or 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 

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reasonable opportunity to inspect and copy any Site Records that 

are to be destroyed; 

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. TheIn the event of the dissolution or complete liquidation of the Settling 

Grantor, the provisions of this Paragraph 5 shall survive in the event of the

dissolution of Settling Granter to the maximum extent permitted by O.R.S. § 

62.708(2)(e), and (f).the Trustee may assert claims or causes of action 

contemplated by this Paragraph 5 as if Settling Grantor 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 

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7. Acceptance of 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. 

III. FUTURE GRANTOR(S) AND FUNDS 

8. Future Grantor(s). Trustee shall have authority to permit other and additional 

Grantor(s) to contribute to the Trust and Trust Fund and to enter into subsequent agreements with 

future and additional Grantor(s) binding said Grantor(s) 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 Grantor(s) to be added to the Trust Fund and to manage the same as a single 

undivided corpus without regard to the percentage or form of contribution from any current or 

future Grantor(s), whether presently known or unknown. Nothing in this Agreement should be 

construed to limit the type, form, amount, or character of any assets, funds, moneys, rights under 

insurance policies, and/or 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, shall not 

create a new trust but shall vest in this Trust and Trust Fund and add to the single Fund created by 

this Agreement. 

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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 Trustee in his discretion deems necessary or appropriate to pursue applicable 

claims. Trustee shall pursue applicable claims with the skill, diligence, prudence, and care that a 

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, Grantor(s) and Trustee agree that Trustee shall 

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; 

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d. purchase and maintain insurance coverage covering Trustee'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 from the Fund. Trustee shall 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. 

V. TRUST MANAGEMENT 

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 

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provision of this Agreement, Trustee shall not take actions that cause Grantor(s) 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, and/or other property granted by any current or future Grantor(s) in a single Fund held 

for the benefit and interest of Beneficiaries. 

VI. TAXES AND EXPENSES 

18. All taxes of any kind that may be assessed or levied against, or in respect of, the 

Fund shall be paid solely from the Fund. The compensation of Trustee and all 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 tax 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 taxes and expenses. Upon payment to 

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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 shall 

make all disbursements from the Fund 75% to EPA and 25% to the Federal Natural Resource 

Trustees. 

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 

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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. 

VIII. ROLE OF GRANTOR 

25. Except as provided in Section II, Grantors shall 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 a semi-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 and/or property 

received by the Trust since the last semi-annual report, a statement of accounts payable and 

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accounts receivable as of the end of the reporting period, and a brief status report regarding any 

claims or causes of action being pursued. 

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 shall be entitled to compensation for his services on a basis in the amount 

listed in Exhibit 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. 

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32. Removal of Trustee. Notwithstanding any other provision of this Agreement, 

Trustee may be removed at any time, with or without cause, and without the necessity of any 

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 shall 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 

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is disputed, predecessor Trustee shall not withhold delivery of any undisputed assets to successor 

Trustee. 

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 

ORC-158 

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 

 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 

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Long Beach, CA 90802 

Deirdre F. Donahue 

Attorney-Advisor 

Office of the Solicitor 

U.S. Department of the Interior 

805 SW Broadway, Suite 600 

Portland, OR 97205-3346 

b. As to Trustee: 

Daniel J. Silver 

606 Columbia St. NW 

Olympia, WA 98501 

c. As to Grantor: 

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 shall 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 

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property, pay all final Trust administration expenses, and distribute the remaining balance of the 

Trust to Beneficiaries in accordance with Paragraph 20. 

XV. AMENDMENT AND MODIFICATION 

38. The Trust may be amended or modified in order to further the material purposes of 

the Trust as follows: 

a. amendments or modifications shall 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 Grantor(s) and Trustee(s) 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 limited 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 

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limitation Beneficiaries, in any forum except for the purpose of enforcing the terms of this 

Agreement. 

40. Extent of Liability of Trustee. Trustee shall not be liable for 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 

required of any Trustee appointed by this Agreement. 

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XVII. CHOICE OF LAW 

44. This Agreement shall be administered, construed, and enforced according to the 

laws of the State of Oregon. 

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. 

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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. 

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. 

 

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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 

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THE UNDERSIGNED PARTY enters into this PORTLAND HARBOR SUPERFUND SITE 

INSURANCE RECOVERY TRUST TRUST AGREEMENT 

FOR TRUSTEE Daniel J. Silver 

Date: _______________________________________ 

 606 Columbia St. NW 

 Suite 212 

 Olympia, WA 98501 

Agent Authorized to Accept Service on Behalf of Above-signed Party: 

Name: 

Title: 

Address: 

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EXHIBIT 1 

[insert known insurance policies under which rights will be assigned]

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EXHIBIT 2 

Trustee Compensation 

Trustee's compensation 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. 

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