Case 3:16-cv-09045-BRM-DEA Document 1-1 Filed 12/06/16 Page

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

-----------------------------------xUNITED STATES OF AMERICA,

Plaintiff,

v.

INTERNATIONAL PAPER COMPANY,GEORGIA-PACIFIC CONSUMER PRODUCTSLP, and MILFORD REDEVELOPMENT LLC

Defendants.-----------------------------------x

Civil Action No.

CONSENT DECREE

Case 3:16-cv-09045-BRM-DEA Document 1-1 Filed 12/06/16 Page 1 of 48 PageID: 13

TABLE OF CONTENTS

I. BACKGROUND .........................................................................................................................1II. NRISDICTION ..........................................................................................................................2III. PARTIES BOUND .....................................................................................................................2N. DEFINITIONS ............................................................................................................................3V. GENERAL PROVISIONS ..........................................................................................................6VI. PERFORMANCE OF THE WORK ...........................................................................................7VII. REMEDY REVIEW ..................................................................................................................10VIII. PROPERTY REQUIREMENTS ...............................................................................................10IX. FINANCIAL ASSURANCE .....................................................................................................15X. PAYMENTS FOR RESPONSE COSTS ..................................................................................18XI. INDEMNIFICATION AND INSURANCE ..............................................................................21XIL FORCE MAJEURE ...................................................................................................................22XIIL DISPUTE RESOLUTION ........................................................................................................24XIV. STIPULATED PENALTIES ....................................................................................................26XV. COVENANTS BY PLAINTIFF ...............................................................................................30XVI. COVENANTS BY SETTLING DEFENDANTS .....................................................................32XVII. EFFECT OF SETTLEMENT; CONTRIBUTION ....................................................................34XVIII. ACCESS TO INFORMATION .................................................................................................36XIX. RETENTION OF RECORDS ...................................................................................................37XX. NOTICES AND SUBMISSIONS .............................................................................................37XXL RETENTION OF JURISDICTION ..........................................................................................39XXII. APPENDICES ...........................................................................................................................39XXIII. MODIFICATION ......................................................................................................................40XXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .............................................40XXV. SIGNATORIES/SERVICE .......................................................................................................40XXVI. FINAL JUDGMENT .................................................................................................................41


I. BACKGROUND

A. The United States of America ("United States"), on behalf of the Administrator ofthe United States Environmental Protection Agency ("EPA"), filed a complaint in this matterpursuant to Sections 106 and 107 of the Comprehensive Environmental Response,Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606 and 9607.

B. The United States in its complaint seeks, inter alias (1) reimbursement of costsincurred by EPA and the Department of Justice ("DOJ") for response actions at the CurtisSpecialty Papers Superfund Site, in the Borough of Milford and the Township of Alexandria,Hunterdon County, New Jersey ("Site"), together with accrued interest; and (2) performance ofresponse actions by the defendants at the Site consistent with the National Contingency Plan,40 C.F.R. Part 300 ("NCP").

C. In accordance with the NCP and Section 121(~(1)(F) of CERCLA, 42 U.S.C.§ 9621(fl(1)(F), EPA notified the State of New Jersey (the "State") on October 5, 2015, ofnegotiations with potentially responsible parties ("PRPs") regarding the implementation of theremedial design and remedial action ("RD/RA") for the Site, and EPA has provided the Statewith an opportunity to participate in such negotiations and be a party to this Consent Decree.

E. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPAnotified the National Oceanic and Atmospheric Administration and the Department of theInterior on October 5, 2015, of negotiations with PRPs regarding the release of hazardoussubstances that may have resulted in injury to the natural resources under federal trusteeship andencouraged the trustees) to participate in the negotiation of this Consent Decree.

F. The defendants that have entered into this Consent Decree ("SettlingDefendants") do not admit any liability to Plaintiff arising out of the transactions or occurrencesalleged in the complaint, nor do they acknowledge that the release or threatened release ofhazardous substances at or from the Site constitutes an imminent and substantial endangermentto the public health or welfare or the environment.

G. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Site onthe National Priorities List ("NPL"), set forth at 40 C.F.R. Part 300, Appendix B, by publicationin the Federal Register on September 23, 2009, 74 Fed. Reg. 48412.

H. In response to a release or a substantial threat of a release of hazardous substancesat or from the Site, Settling Defendants, International Paper Company ("IP") and Georgia-PacificConsumer Products LP ("GP"), commenced a Remedial Investigation and Feasibility Study("RUFS") for the Site pursuant to 40 C.F.R. § 300.430 on June 4, 2009.

I. IP and GP completed a Remedial Investigation ("RI") Report on September 16,2014, and IP and GP completed a Feasibility Study ("FS") Report on April 15, 2015.

J. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice ofthe completion of the FS and of the proposed plan for remedial action on May 28, 2015, in amajor local newspaper of general circulation. EPA provided an opportunity for written and oralcomments from the public on the proposed plan for remedial action. A copy of the transcript ofthe public meeting is available to the public as part of the administrative record upon which the


Director, Emergency and Remedial Response Division, EPA Region 2, based the selection of theresponse action.

K. The decision by EPA on the remedial action to be implemented at the Site isembodied in a final Record of Decision ("ROD"), executed on September 30, 2015, on which theState had a reasonable opportunity to review and comment. The ROD includes a responsivenesssummary to the public comments. Notice of the final plan was published in accordance withSection 117(b) of CERCLA, 42 U.S.C. § 9617(b).

L. Based on the information presently available to EPA, EPA believes that the Workwill be properly and promptly conducted by Settling Defendants if conducted in accordance withthis Consent Decree and its appendices.

M. Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j), theremedy set forth in the ROD and the Work to be performed by Settling Defendants shallconstitute a response action taken or ordered by the President for which judicial review shall belimited to the administrative record.

N. The Parties recognize, and the Court by entering this Consent Decree finds, thatthis Consent Decree has been negotiated by the Parties in good faith and implementation of thisConsent Decree will expedite the cleanup of the Site and will avoid prolonged and complicatedlitigation between the Parties, and that this Consent Decree is fair, reasonable, and in the publicinterest.

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

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to28 U.S.C. §§ 1331, 1367, and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court alsohas personal jurisdiction over Settling Defendants. Solely for the purposes of this ConsentDecree and the underlying complaint, Settling Defendants waive all objections and defenses thatthey may have to jurisdiction of the Court or to venue in this District. Settling Defendants shallnot challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforcethis Consent Decree.

III. PARTIES BOUND

2. This Consent Decree is binding upon the United States and upon SettlingDefendants and their successors and assigns. Any change in ownership or corporate or otherlegal status of a Settling Defendant including, but not limited to, any transfer of assets or real orpersonal property, shall in no way alter such Settling Defendant's responsibilities under thisConsent Decree.

3. •Settling Defendants shall provide a copy of this Consent Decree to eachcontractor hired to perform the Work and to each person representing any Settling Defendantwith respect to the Site or the Work, and shall condition all contracts entered into hereunder uponperformance of the Work in conformity with the terms of this Consent Decree. SettlingDefendants or their contractors shall provide written notice of the Consent Decree to allsubcontractors hired to perform any portion of the Work. Settling Defendants shall nonetheless

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be responsible for ensuring that their contractors and subcontractors perform the Work inaccordance with the terms of this Consent Decree. With regard to the activities undertakenpursuant to this Consent Decree, each contractor and subcontractor shall be deemed to be in acontractual relationship with Settling Defendants within the meaning of Section 107(b)(3) ofCERCLA, 42 U.S.C. § 9607(b)(3).

IV. DEFINITIONS

4. Unless otherwise expressly provided in this Consent Decree, terms used in thisConsent Decree that are defined in CERCLA or in regulations promulgated under CERCLAshall have the meaning assigned to them in CERCLA or in such regulations. Whenever termslisted below are used in this Consent Decree or its appendices, the following definitions shallapply solely for purposes of this Consent Decree:

"Affected Property" shall mean all real property at the Site and any other real propertywhere EPA determines, at any time, that access, land, water, or other resource use restrictions,and/or Institutional Controls are needed to implement the Remedial Action, including, but notlimited to, the three properties located at 404 Frenchtown Road, in the Borough of Milford andthe Township of Alexandria, Hunterdon County, New Jersey, identified by the New JerseyDepartment of the Treasury, Division of Taxation, as Block 13, Lot 5.01 and Block 19, Lot 51 inthe Borough of Milford and Block 17.01, Lot 1.01 in Alexandria Township.

"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, andLiability Act, 42 U.S.C. §§ 9601-9675.

"Consent Decree" shall mean this consent decree and all appendices attached hereto(listed in Section XXII). In the event of conflict between this Consent Decree and any appendix,this Consent Decree shall control.

"Day" or "day" shall mean a calendar day. In computing any period of time under thisConsent Decree, where the last day would fall on a Saturday, Sunday, or federal or State holiday,the period shall run until the close of business of the next working day.

"DOJ" shall mean the United States Department of Justice and its successor departments,agencies, or instrumentalities.

"Effective Date" shall mean the date upon which the approval of this Consent Decree isrecorded on the Court's docket.

"EPA" shall mean the United States Environmental Protection Agency and its successordepartments, agencies, or instrumentalities.

"EPA Hazardous Substance Superfund" shall mean the Hazardous Substance Superfundestablished by the Internal Revenue Code, 26 U.S.C. § 9507.

"NJDEP" shall mean the New Jersey Department of Environmental Protection and anysuccessor departments or agencies of the State.

"Future Response Costs" shall mean all costs, including, but not limited to, direct andindirect costs, that the United States incurs in reviewing or developing deliverables submitted


pursuant to this Consent Decree, in overseeing implementation of the Work, or otherwiseimplementing, overseeing, or enforcing this Consent Decree, including, but not limited to,payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant toParagraph 11 (Emergencies and Releases), Paragraph 12 (Community Involvement) (includingthe costs of any technical assistance grant under Section 117(e) of CERCLA, 42 U.S.C. §9617(e)), Paragraph 30 (Access to Financial Assurance), Section VII (Remedy Review),Section VIII (Property Requirements) (including the cost of attorney time and any monies paid tosecure or enforce access or land, water, or other resource use restrictions and/or to secure,implement, monitor, maintain, or enforce Institutional Controls including the amount of justcompensation), and Section XIII (Dispute Resolution), and all litigation costs. Future ResponseCosts shall also include all Interim Response Costs, all Interest on those Past Response CostsSettling Defendants have agreed to pay under this Consent Decree that has accrued pursuant to42 U.S.C. § 9607(a) during the period from September 30, 2015, to the Effective Date, and anycosts regarding the Site incurred after that date by the Agency for Toxic Substances and DiseaseRegistry ("ATSDR").

"Institutional Controls" shall mean Proprietary Controls and state or local laws,regulations, ordinances, zoning restrictions, or other governmental controls or notices that:(a) limit land, water, or other resource use to minimize the potential for human exposure toWaste Material at or in connection with the Site; (b) limit land, water, or other resource use toimplement, ensure non-interference with, or ensure the protectiveness of the RA; and/or(c) provide information intended to modify or guide human behavior at or in connection with theSite.

"Interim Response Costs" shall mean all costs, including, but not limited to, direct andindirect costs, (a) paid by the United States in connection with the Site between September 30,2015, and the Effective Date, or (b) incurred prior to the Effective Date but paid after that date.

"Interest" shall mean interest at the rate specified for interest on investments of the EPAHazardous Substance Superfund, compounded annually on October 1 of each year, in accordancewith 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time theinterest accrues. The rate of interest is subject to change on October 1 of each year. Rates areavailable online at http://www.epa.gov/ocfopa~e/finstatement/superfund/int rate.htm.

"IP" shall mean International Paper Company

"GP" shall mean Georgia-Pacific Consumer Products, LP.

"Milford Redevelopment" shall mean Milford Redevelopment LLC, a sister company ofGP and a direct, wholly-owned subsidiary of Georgia-Pacific LLC (which is also the indirectparent company of GP).

"Curtis Specialty Papers Superfund Site Special Account" shall mean the special account,within the EPA Hazardous Substance Superfund, established for the Site by EPA pursuant toSection 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

"National Contingency Plan" or "NCP" shall mean the National Oil and HazardousSubstances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA,42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.


"Operation and Maintenance" or "O&M" shall mean all activities required to operate,maintain, and monitor the effectiveness of the RA as specified in the SOW or any EPA-approvedO&M Plan.

"Owner Settling Defendant" shall mean any Settling Defendant that owns or controls anyAffected Property, including IP and Milford Redevelopment. The clause "Owner SettlingDefendants' Affected Property" means Affected Property owned or controlled by Owner SettlingDefendants.

"Paragraph" or "¶" shall mean a portion of this Consent Decree identified by an Arabicnumeral or an upper or lower case letter.

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

"Past Response Costs" shall mean all costs, including, but not limited to, direct andindirect costs, that the United States paid at or in connection with the Site through September 30,2015, plus Interest on all such costs that has accrued pursuant to 42 U.S.C. § 9607(a) throughsuch date.

"Performance Standards" shall mean the cleanup levels, remediation goals, and othermeasures of achievement of the remedial action objectives, as set forth in the ROD.

"Plaintiff' shall mean the United States.

"Proprietary Controls" shall mean easements or covenants running with the land that (a)limit land, water, or other resource use and/or provide access rights and (b) are created pursuantto common law or statutory law by an instrument that is recorded in the appropriate land recordsoffice.

"RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also knownas the Resource Conservation and Recovery Act).

"Record of Decision" or "ROD" shall mean the EPA Record of Decision relating to theSite signed on September 30, 2015, by the Director of the Emergency and Remedial ResponseDivision, EPA Region 2, and all attachments thereto. The ROD is attached hereto as AppendixA.

"Remedial Action" or "RA" shall mean the remedial action selected in the ROD.

"Remedial Design" or "RD" shall mean those activities to be undertaken by SettlingDefendants to develop final plans and specifications for the RA as stated in the SOW.

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

"Settling Defendants" shall mean IP, GP, and Milford Redevelopment.

"Site" shall mean the Curtis Specialty Papers Superfund Site, encompassingapproximately 86 acres, located at 404 Frenchtown Road in the Borough of Milford andAlexandria Township, Hunterdon County, New Jersey, identified by the New Jersey Departmentof the Treasury, Division of Taxation, as Block 13, Lot 5.01 and Block 19, Lot 51 in theBorough of Milford and Block 17.01, Lot 1.01 in Alexandria Township, and depicted generally

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on the map attached as Appendix C; provided, however, that the "Site" does not include theapproximately 20 acres of property north of Quequacommissacong Creek, known as the"northern parcel," which was owned by each of the successive mill owners but never developedor used for paper mill operations.

"State" shall mean the State of New Jersey.

"Statement of Work" or "SOW" shall mean the document describing the activitiesSettling Defendants must perform to implement the RD, the RA, and O&M regarding the Site,which is attached as Appendix B.

"Supervising Contractor" shall mean the principal contractor retained by SettlingDefendants to supervise and direct the implementation of the Work under this Consent Decree.

"Transfer" shall mean to sell, assign, convey, lease, mortgage, or grant a security interestin, or where used as a noun, a sale, assignment, conveyance, or other disposition of any interestby operation of law or otherwise.

"United States" shall mean the United States of America and each department, agency,and instrumentality of the United States, including EPA and any federal natural resource trustee.

"Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) ofCERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33) ofCERCLA, 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 the Spill Compensation andControl Act, N.J.S.A. 58:10-23.11.

"Work" shall mean all activities and obligations Settling Defendants are required toperform under this Consent Decree, except the activities required under Section XIX (Retentionof Records).

V. GENERAL PROVISIONS

5. Objectives of the Parties. The objectives of the Parties in entering into thisConsent Decree are to protect public health or welfare or the environment by the design andimplementation of response actions at the Site by Settling Defendants, to pay response costs ofPlaintiff, and to resolve the claims of Plaintiff against Settling Defendants as provided in thisConsent Decree.

6. Commitments by Settling Defendants.

a. Settling Defendants shall finance and perform the Work in accordancewith this Consent Decree and all deliverables developed by Settling Defendants and approved ormodified by EPA pursuant to this Consent Decree. Settling Defendants shall pay the UnitedStates for its response costs as provided in this Consent Decree.

b. Settling Defendants' obligations to finance and perform the Work,including obligations to pay amounts due under this Consent Decree, are joint and several. In theevent of the insolvency of any Settling Defendant or the failure by any Settling Defendant to

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implement any requirement of this Consent Decree, the remaining Settling Defendants shallcomplete all such requirements.

7. Compliance with Applicable Law. Nothing in this Consent Decree limitsSettling Defendants' obligations to comply with the requirements of all applicable federal andstate laws and regulations. Settling Defendants must also comply with all applicable or relevantand appropriate requirements of all federal and state environmental laws as set forth in the RODand the SOW. The activities conducted pursuant to this Consent Decree, if approved by EPA,shall be deemed to be consistent with the NCP as provided in Section 300.700(c)(3)(ii) of theNCP.

Permits.

a. As provided in Section 121(e) of CERCLA, 42 U.S.C. § 9621(e), andSection 300.400(e) of the NCP, no permit shall be required for any portion of the Workconducted entirely on-site (i.e., within the areal extent of contamination or in very closeproximity to the contamination and necessary for implementation of the Work). Where anyportion of the Work that is not on-site requires a federal or state permit or approval, SettlingDefendants shall submit timely and complete applications and take all other actions necessary toobtain all such permits or approvals.

b. Settling Defendants may seek relief under the provisions of Section XII(Force Majeure) for any delay in the performance of the Work resulting from a failure to obtain,or a delay in obtaining, any permit or approval referenced in Paragraph 8.a and required for theWork, provided that they have submitted timely and complete applications and taken all otheractions necessary to obtain all such permits or approvals.

c. This Consent Decree is not, and shall not be construed to be, a permitissued pursuant to any federal or state statute or regulation.

VI. PERFORMANCE OF THE WORK

9. Coordination and Supervision.

a. Project Coordinators.

(1) Settling Defendants' Project Coordinator must have sufficienttechnical expertise to coordinate the Work. Settling Defendants' Project Coordinatormay not be an attorney representing any Settling Defendant in this matter and may notact as the Supervising Contractor.

(2) EPA has designated Alison Hess, Remedial Project Manager withthe Special Projects Branch of EPA Region 2, as EPA's Project Coordinator, andMichael Sivak, Chief of the Special Projects Branch of EPA Region 2, as EPA'sAlternate Project Coordinator, for the Site. EPA may designate other representatives,which may include its employees, contractors and/or consultants, to oversee the Work.EPA's Project Coordinator/Alternate Project Coordinator will have the same authorityas a remedial project manager and/or an on-scene coordinator, as described in the NCP.This includes the authority to halt the Work and/or to conduct or direct any necessaryresponse action when he or she determines that conditions at the Site constitute an

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emergency or may present an immediate threat to public health or welfare or theenvironment due to a release or threatened release of Waste Material.

(3) Settling Defendants' Project Coordinator shall meet with EPA'sProject Coordinator at least monthly, or as otherwise requested or agreed by EPA, fromthe Effective Date of this Consent Decree to the date of completion of the RemedialAction. These meetings may be conducted telephonically or in person at EPA'sdiscretion.

b. Supervising Contractor. Settling Defendants' proposed SupervisingContractor must have sufficient technical expertise to supervise the Work and a quality assurancesystem that complies with ANSI/ASQC E4-2004, Quality Systems for Environmental Data andTechnology Programs: Requirements with Guidance for Use (American National Standard).

Procedures for Disapproval/Notice to Proceed.

(1) Settling Defendants shall designate, and notify EPA, within 10days after the Effective Date, of the names, contact information, and qualifications ofthe Settling Defendants' proposed Project Coordinator and Supervising Contractor.

(2) EPA, after a reasonable opportunity for review and comment bythe State, shall issue notices of disapproval and/or authorizations to proceed regardingthe proposed Project Coordinator and Supervising Contractor, as applicable. If EPAissues a notice of disapproval, Settling Defendants shall, within 10 days, submit to EPAa list of supplemental proposed Project Coordinators and/or Supervising Contractors, asapplicable, including a description of the qualifications of each. EPA shall issue a noticeof disapproval or authorization to proceed regarding each supplemental proposedcoordinator and/or contractor. Settling Defendants may select any coordinator/contractorcovered by an authorization to proceed and shall, within 21 days, notify EPA of SettlingDefendants' selection.

(3) Settling Defendants may change their Project Coordinator and/orSupervising Contractor, as applicable, by following the procedures of Paragraphs 9.c(1)and 9.c(2).

(4) Notwithstanding the procedures of Paragraphs 9.c(1) through9.c(3), Settling Defendants have proposed, and EPA has authorized Settling Defendantsto proceed, regarding the following Project Coordinator and Supervising Contractor:The Project Coordinator is Gary Wroblewski, P.E., ARCADIS US, Inc. 8 South RiverRoad, Cranbury NJ 08512. The Supervising Contractor is ARCADIS US, Inc. 8 SouthRiver Road, Cranbury NJ 08512, Attn: Gary Wroblewski, P.E.

10. Performance of Work in Accordance with SOW. Settling Defendants shall: (a)develop the RD; (b) perform the RA; and (c) operate, maintain, and monitor the effectiveness ofthe RA; all in accordance with the SOW and all EPA-approved, conditionally-approved, ormodified deliverables as required by the SOW. All deliverables required to be submitted forapproval under the Consent Decree or SOW shall be subject to approval by EPA in accordancewith Paragraph 6.6 (Approval of Deliverables) of the SOW.

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11. Emergencies and Releases. Settling Defendants shall comply with theemergency and release response and reporting requirements under Paragraph 4.3 (EmergencyResponse and Reporting) of the SOW. Subject to Section XV (Covenants by Plaintiff, nothingin this Consent Decree, including Paragraph 4.3 of the SOW, limits any authority of Plaintiff: (a)to take all appropriate action to protect human health and the environment or to prevent, abate,respond to, or minimize an actual or threatened release of Waste Material on, at, or from the Site,or (b) to direct or order such action, or seek an order from the Court, to protect human health andthe environment or to prevent, abate, respond to, or minimize an actual or threatened release ofWaste Material on, at, or from the Site. If, due to Settling Defendants' failure to take appropriateresponse action under Paragraph 4.3 of the SOW, EPA takes such action instead, SettlingDefendants shall reimburse EPA under Section X (Payments for Response Costs) for all costs ofthe response action.

12. Community Involvement. If requested by EPA, Settling Defendants shallconduct community involvement activities under EPA's oversight as provided for in, and inaccordance with, Section 2 (Community Involvement) of the SOW. Such activities may include,but are not limited to, designation of a Community Involvement Coordinator. Costs incurred bythe United States under this Section constitute Future Response Costs to be reimbursed underSection X (Payments for Response Costs).

13. Modification of SOW or Related Deliverables.

a. If EPA determines that it is necessary to modify the work specified in theSOW and/or in deliverables developed under the SOW in order to achieve and/or maintain thePerformance Standards or to carry out and maintain the effectiveness of the RA, and suchmodification is consistent with the Scope of the Remedy set forth in Paragraph 1.3 of the SOW,then EPA may notify Settling Defendants of such modification. If Settling Defendants object tothe modification they may, within 30 days after EPA's notification, seek dispute resolution underSection XIII.

b. The SOW and/or related work plans shall be modified: (1) in accordancewith the modification issued by EPA; or (2) if Settling Defendants invoke dispute resolution, inaccordance with the final resolution of the dispute. The modification shall be incorporated intoand enforceable under this Consent Decree, and Settling Defendants shall implement all workrequired by such modification. Settling Defendants shall incorporate the modification into thedeliverable required under the SOW, as appropriate.

c. Nothing in this Paragraph shall be construed to limit EPA's authority torequire performance of further response actions as otherwise provided in this Consent Decree.

14. Nothing in this Consent Decree, the SOW, or any deliverable required under theSOW constitutes a warranty or representation of any kind by Plaintiff that compliance with thework requirements set forth in the SOW or related deliverable will achieve the PerformanceStandards.

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VII. REMEDY REVIEW

15. Periodic Review. Settling Defendants shall conduct, in accordance withParagraph 4.6 (Periodic Review Support Plan) of the SOW, studies and investigations to supportEPA's reviews under Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and applicableregulations, of whether the RA is protective of human health and the environment.

16. EPA Selection of Further Response Actions. If EPA determines, at any time,that the RA is not protective of human health and the environment, EPA may select furtherresponse actions for the Site in accordance with the requirements of CERCLA and the NCP.

17. Opportunity to Comment. Settling Defendants and, if required bySections 113(k)(2) or 117 of CERCLA, 42 U.S.C. § 9613(k)(2) or 9617, the public, will beprovided with an opportunity to comment on any further response actions proposed by EPA as aresult of the review conducted pursuant to Section 121(c) of CERCLA and to submit writtencomments for the record during the comment period.

18. Settling Defendants' Obligation to Perform Further Response Actions. IfEPA selects further response actions relating to the Site,. EPA may require Settling Defendants toperform such further response actions, but only to the extent that the reopener conditions inParagraph 66 or 67 (United States' Pre- and Post-Certification Reservations) are satisfied.Settling Defendants may invoke the procedures set forth in Section XIII (Dispute Resolution) todispute (a) EPA's determination that the reopener conditions of Paragraph 66 or 67 are satisfied,(b) EPA's determination that the RA is not protective of human health and the environment, or(c) EPA's selection of the further response actions. Disputes regarding EPA's determination thatthe RA is not protective or EPA's selection of further response actions shall be resolved pursuantto Paragraph 50 (Record Review).

19. Submission of Plans. If Settling Defendants are required to perform furtherresponse actions pursuant to Paragraph 18, they shall submit a plan for such response action toEPA for approval in accordance with the procedures of Section VI (Performance of the Work bySettling Defendants). Settling Defendants shall implement the approved plan in accordance withthis Consent Decree.

VIII. PROPERTY REQUIREMENTS

20. Proprietary Controls. Owner Settling Defendants shall, with respect to OwnerSettling Defendant's Affected Property, execute and record, in accordance with the procedures ofthis Paragraph 20, Proprietary Controls that: (i) grant a right of access to conduct any activityregarding the Consent Decree, including those activities listed in Paragraph 20.a; and (ii) grantthe right to enforce the land, water, or other resource use restrictions set forth in Paragraph 20.b.

a. Access Requirements. The following is a list of activities for whichaccess is required regarding the Affected Property:

(1) Monitoring the Work;

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

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Site;(3) Conducting investigations regarding contamination at or near the

(4) Obtaining samples;

(5) Assessing the need for, planning, or implementing additionalresponse actions at or near the Site;

(6) Assessing implementation of quality assurance and quality controlpractices as defined in the approved construction quality. assurance quality control planas provided in the SOW;

(7) Implementing the Work pursuant to the conditions set forth inParagraph 70 (Work Takeover);

(8) Inspecting and copying records, operating logs, contracts, or otherdocuments maintained or generated by Settling Defendants or their agents, consistentwith Section XVIII (Access to Information);

(9) Assessing Settling Defendants' compliance with the ConsentDecree;

(10) Determining whether the Affected Property is being used in amanner that is prohibited or restricted, or that may need to be prohibited or restrictedunder the Consent Decree; and

(11) Implementing, monitoring, maintaining, reporting on, andenforcing any Institutional Controls.

b. Land, Water, or Other Resource Use Restrictions. The following is alist of land, water, or other resource use restrictions applicable to the Affected Property:

(1) Prohibiting any activities which could interfere with the RA;

(2) Prohibiting use of contaminated groundwater;

(3) Prohibiting any activities which could result in exposure tocontaminants in groundwater;

(4) Ensuring that any new structures on the Site will not beconstructed in a manner which could interfere with the RA; and

(5) Ensuring that the demolition of any structures on the Site will notinterfere with the RA.

c. Grantees. The Proprietary Controls must be granted to one or more of thefollowing persons and their representatives, as determined by EPA: the United States, the State,Settling Defendants, and any other appropriate grantees. Proprietary Controls in the nature of aUniform Environmental Covenants Act (UECA) document granted to persons other than theUnited States must include a designation that EPA (and/or the State, as appropriate) is an"agency" or a party expressly granted the right of access and the right to enforce the covenants

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allowing EPA to maintain the right to enforce the Proprietary Controls without acquiring aninterest in real property.

d. Initial Title Evidence. Settling Defendants shall, within 45 days after theEffective Date:

(1) Record Title Evidence. Submit to EPA a title insurancecommitment, title report, or other title evidence acceptable to EPA that: (i) names theproposed insured or the party in whose favor the title evidence runs, or the party whowill hold the real estate interest, or if that party is uncertain, names the United States, theState, the Settling Defendants, or "To Be Determined;" (ii) covers the Affected Propertythat is to be encumbered; (iii) demonstrates that the person or entity that will executeand record the Proprietary Controls is the owner of such Affected Property;(iv) identifies all record matters that affect title to the Affected Property, including allprior liens, claims, rights (such as easements), mortgages, and other encumbrances(collectively, "Prior Encumbrances"); and (v) includes complete, legible copies of suchPrior Encumbrances; and

(2) Non-Record Title Evidence. Submit to EPA a report of the resultsof an investigation, including a physical inspection of the Affected Property, whichidentifies non-record matters that could affect the title, such as unrecorded leases orencroachments.

e. Release or Subordination of Prior Liens, Claims, and Encumbrances.

(1) Settling Defendants shall secure the release, subordination,modification, or relocation of all Prior Encumbrances on the title to the AffectedProperty revealed by the title evidence or otherwise known to the Settling Defendants,unless EPA waives this requirement as provided under Paragraphs 20.e(2)-(4).

(2) Settling Defendants may, by the deadline under Paragraph 20.d,submit an initial request for waiver of the requirements of Paragraph 20.e(1) regardingone or more Prior Encumbrances, on the grounds that such Prior Encumbrances cannotdefeat or adversely affect the rights to be granted by the Proprietary Controls and cannotinterfere with the remedy or result in unacceptable exposure to Waste Material.

(3) Settling Defendants may, within 90 days after the Effective Date,or if an initial waiver request has been filed, within 45 days after EPA's determinationon the initial waiver request, submit a final request for a waiver of the requirements ofParagraph 20.e(1) regarding any particular Prior Encumbrance on the grounds thatSettling Defendants could not obtain the release, subordination, modification, orrelocation of such Prior Encumbrance despite best efforts.

(4) The initial and final waiver requests must include supportingevidence including descriptions of and copies of the Prior Encumbrances and mapsshowing areas affected by the Prior Encumbrances. The final waiver request also mustinclude evidence of efforts made to secure release, subordination, modification, orrelocation of the Prior Encumbrances.

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(5) Settling Defendants shall complete their obligations underParagraph 20.e(1) regarding all Prior Encumbrances: within 180 days after the EffectiveDate; or if an initial waiver request has been filed, within 135 days after EPA'sdetermination on the initial waiver request; or if a final waiver request has been filed,within 90 days after EPA's determination on the final waiver request:

f. Update to Title Evidence and Recording of Proprietary Controls.

(1) Settling Defendants shall submit to EPA for review and approval,by the deadline specified in Paragraph 20.e(5), all draft Proprietary Controls and draftinstruments addressing Prior Encumbrances.

(2) Upon EPA's approval of the proposed Proprietary Controls andinstruments addressing Prior Encumbrances, Settling Defendants shall, within 15 days,update the original title insurance commitment (or other evidence of title acceptable toEPA) under Paragraph 20.d. If the updated title examination indicates that no liens,claims, rights, or encumbrances have been recorded since the effective date of theoriginal commitment (or other title evidence), Settling Defendants shall secure theimmediate recordation of the Proprietary Controls and instruments addressing PriorEncumbrances in the appropriate land records. Otherwise, Settling Defendants shallsecure the release, subordination, modification, or relocation under Paragraph 20.e(1), orthe waiver under Paragraphs 20.e(2)-(4), regarding any newly-discovered liens, claims,rights, and encumbrances, prior to recording the Proprietary Controls and instrumentsaddressing Prior Encumbrances.

(3) If Settling Defendants submitted a title insurance commitmentunder Paragraph 20.d(1) (Record Title Evidence), then upon the recording of theProprietary Controls and instruments addressing Prior Encumbrances, SettlingDefendants shall obtain a title insurance policy that: (i) is consistent with the originaltitle insurance commitment; (ii) is for $100,000 or other amount approved by EPA; (iii)is issued to the United States, Settling Defendants, or other person approved by EPA;and (iv) is issued on a current American Land Title Association ("ALTA") form or otherform approved by EPA.

(4) Settling Defendants shall, within 30 days after recording theProprietary Controls and instruments addressing Prior Encumbrances, or such otherdeadline approved by EPA, provide to the United States and to all grantees of theProprietary Controls: (i) certified copies of the recorded Proprietary Controls andinstruments addressing Prior Encumbrances showing the clerk's recording stamps; and(ii) the title insurance policy(ies) or other approved form of updated title evidence datedas of the date of recording of the Proprietary Controls and instruments.

g. Settling Defendants shall monitor, maintain, enforce, and biannuallyreport on all Proprietary Controls required under this Consent Decree.

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21. Agreements Regarding Access and Non-Interference.

a. Owner Settling Defendants shall, with respect to Owner SettlingDefendants' Affected Property:

(1) Provide Plaintiff and the other Settling Defendants, and theirrepresentatives, contractors, and subcontractors with access at all reasonable times tosuch Affected Property to conduct any activity regarding the Consent Decree, includingthose listed in Paragraph 20.a (Access Requirements); and

(2) Refrain from using such Affected Property in any manner that EPAdetermines will: (i) pose an unacceptable risk to human health or to the environment dueto exposure to Waste Material, or (ii) interfere with or adversely affect theimplementation, integrity, or protectiveness of the Remedial Action. The restrictionsinclude those listed in Paragraph 20.b (Land, Water, or Other Resource UseRestrictions).

22. Best Efforts. As used in this Section, "best efforts" means the efforts that areasonable person in the position of Settling Defendants would use so as to achieve the goal in atimely manner, including the cost of employing professional assistance and the payment ofreasonable sums of money to secure Proprietary Controls, agreements, releases, subordinations,modifications, or relocations of Prior Encumbrances that affect the title to the Affected Property,as applicable. If Settling Defendants are unable to accomplish what is required through "bestefforts" in a timely manner, they shall notify EPA, and include a description of the steps taken tocomply with the requirements. If the United States deems it appropriate, it may assist SettlingDefendants, or take independent action, in obtaining such Proprietary Controls, agreements,releases, subordinations, modifications, or relocations of Prior Encumbrances that affect the titleto the Affected Property, as applicable. All costs incurred by the United States in providing suchassistance or taking such action, including the cost of attorney time and the amount of monetaryconsideration or just compensation paid, constitute Future Response Costs to be reimbursedunder Section X (Payments for Response Costs).

23. Settling Defendants shall not Transfer their Affected Property unless they have:(a) first secured EPA's approval of, and each transferee's consent to, an agreement that: (i) isenforceable by Settling Defendants and Plaintiff; and (ii) requires each transferee to provideaccess to and to refrain from using the Affected Property to the same extent as is provided underParagraph 20.a (Access Requirements) and Paragraph 20.b (Land, Water, or Other Resource UseRestrictions); and (b) executed and recorded all Proprietary Controls and instruments addressingPrior Encumbrances regarding such Affected Property in accordance with Paragraph 20(Proprietary Controls).

24. If EPA determines in a decision document prepared in accordance with the NCPthat Institutional Controls in the form of state or local laws, regulations, ordinances, zoningrestrictions, or other governmental controls or notices are needed, Settling Defendants shallcooperate with EPA's and the State's efforts to secure and ensure compliance with suchInstitutional Controls.

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25. Notice to Successors-in-Title.

a. Settling Defendants shall, within 15 days after the Effective Date, submitfor EPA approval a notice to be filed regarding Settling Defendants' Affected Property in theappropriate land records. The notice must: (1) include a proper legal description of the AffectedProperty; (2) provide notice to all successors-in-title: (i) that the Affected Property is part of, orrelated to, the Site; (ii) that EPA has selected a remedy for the Site; and (iii) that potentiallyresponsible parties have entered into a Consent Decree requiring implementation of suchremedy; and (3) identify the U.S. District Court in which the Consent Decree was filed, the nameand civil action number of this case, and the date the Consent Decree was entered by the Court.Settling Defendants shall record the notice within 10 days after EPA's approval of the notice andsubmit to EPA, within 10 days thereafter, a certified copy of the recorded notice.

b. Settling Defendants shall, prior to entering into a contract to TransferSettling Defendants' Affected Property, or 60 days prior to Transferring Settling Defendants'Affected Property, whichever is earlier:

(1) Notify the proposed transferee that EPA has selected a remedyregarding the Site, that potentially responsible parties have entered into a ConsentDecree requiring implementation of such remedy, and that the United States DistrictCourt has entered the Consent Decree (identifying the name and civil action number ofthis case and the date the Consent Decree was entered by the Court); and

(2) Notify EPA of the name and address of the proposed transfereeand provide EPA with a copy of the notice that it provided to the proposed transferee.

26. In the event of any Transfer of the Affected Property, unless the United Statesotherwise consents in writing, Settling Defendants shall continue to comply with theirobligations under the Consent Decree, including their obligation to provide and/or secure accessand ensure compliance with any land, water, or other resource use restrictions regarding theAffected Property, to implement, maintain, monitor, and report on Institutional Controls, and toabide by such Institutional Controls.

27. Notwithstanding any provision of the Consent Decree, Plaintiff retains all of itsaccess authorities and rights, as well as all of its rights to require Institutional Controls, includingenforcement authorities related thereto, under CERCLA, RCRA, and any other applicable statuteor regulations.

IX. FINANCIAL ASSURANCE

28. In order to ensure completion of the Work, Settling Defendants shall securefinancial assurance, initially in the amount of $1,239,000 ("Estimated Cost of the Work"), for thebenefit of EPA. The financial assurance must be one or more of the mechanisms listed below, ina form substantially identical to the relevant sample documents available from the "FinancialAssurance" category on the Cleanup Enforcement Model Language and Sample DocumentsDatabase at http://cfpub.epa.~ov/compliance/models/, and satisfactory to EPA. SettlingDefendants may use multiple mechanisms if they are limited to surety bonds guaranteeingpayment, letters of credit, trust funds, andJor insurance policies.

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a. A surety bond guaranteeing payment and/or performance of the Work thatis issued by a surety company among those listed as acceptable sureties on federal bonds as setforth in Circular 570 of the U.S. Department of the Treasury;

b. An irrevocable letter of credit, payable to or at the direction of EPA, that isissued by an entity that has the authority to issue letters of credit and whose letter-of-creditoperations are regulated and examined by a federal or state agency;

c. A trust fund established for the benefit of EPA that is administered by atrustee that has the authority to act as a trustee and whose trust operations are regulated andexamined by a federal or state agency; or

d. A policy of insurance that provides EPA with acceptable rights as abeneficiary thereof and that is issued by an insurance carrier that has the authority to issueinsurance policies in the applicable jurisdictions) and whose insurance operations are regulatedand examined by a federal or state agency.

Settling Defendants have selected, and EPA has found satisfactory, as an initial financialassurance an irrevocable letter of credit prepared in accordance with Paragraph 28. Within30 days after the Effective Date, or 30 days after EPA's approval of the form and substance ofSettling Defendants' financial assurance, whichever is later, Settling Defendants shall secure allexecuted and/or otherwise finalized mechanisms or other documents consistent with the EPA-approved form of financial assurance and shall submit such mechanisms and documents toRobert Keating, Chief, Resource Management and Cost Recovery Section, Program SupportBranch, Emergency and Remedial Response Division, U.S. Environmental Protection Agency,Region 2, 290 Broadway, New York, New York 10007, to the United States, and to EPA asspecified in Section XX (Notices and Submissions).

29. Settling Defendants shall diligently monitor the adequacy of the financialassurance. If any Settling Defendant becomes aware of any information indicating that thefinancial assurance provided under this Section is inadequate or otherwise no longer satisfies therequirements of this Section, such Settling Defendant shall notify EPA of such informationwithin 7 days. If EPA determines that the financial assurance provided under this Section isinadequate or otherwise no longer satisfies the requirements of this Section, EPA will notify theaffected Settling Defendant of such determination. Settling Defendants shall, within 30 days afternotifying EPA or receiving notice from EPA under this Paragraph, secure and submit to EPA forapproval a proposal for a revised or alternative financial assurance mechanism that satisfies therequirements of this Section. EPA may extend this deadline for such time as is reasonablynecessary for the affected Settling Defendant, in the exercise of due diligence, to secure andsubmit to EPA a proposal for a revised or alternative financial assurance mechanism, not toexceed 60 days. Settling Defendants shall follow the procedures of Paragraph 31 (Modificationof Financial Assurance) in seeking approval of, and submitting documentation for, the revised oralternative financial assurance mechanism. Settling Defendants' inability to secure and submit toEPA financial assurance in accordance with this Section shall in no way excuse performance ofany other requirements of this Consent Decree, including, without limitation, the obligation ofSettling Defendants to complete the Work in accordance with the terms of this Consent Decree.

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30. Access to Financial Assurance.

a. If EPA issues a notice of implementation of a Work Takeover underParagraph 70.b, then, in accordance with any applicable financial assurance mechanism and/orrelated standby funding commitment, EPA is entitled to: (1) the performance of the Work; and/or(2) require that any funds guaranteed be paid in accordance with Paragraph 30.d.

b. If EPA is notified by the issuer of a financial assurance mechanism that itintends to cancel such mechanism, and the affected Settling Defendant fails to provide analternative financial assurance mechanism in accordance with this Section at least 30 days priorto the cancellation date, the funds guaranteed under such mechanism must be paid prior tocancellation in accordance with Paragraph 30.d.

c. If, upon issuance of a notice of implementation of a Work Takeover underParagraph 70.b, EPA is unable for any reason to promptly secure the resources guaranteed underany applicable financial assurance mechanism andJor related standby funding commitment,whether in cash or in kind, to continue and complete the Work, then EPA may demand anamount, as determined by EPA, sufficient to cover the cost of the remaining Work to beperformed. Settling Defendants shall, within 10 days of such demand, pay the amount demandedas directed by EPA.

d. Any amounts required to be paid under this Paragraph 30 shall be, asdirected by EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA or byanother person; or (ii) deposited into an interest-bearing account, established at a duly charteredbank or trust company that is insured by the FDIC, in order to facilitate the completion of theWork by another person. If payment is made to EPA, EPA may deposit the payment into theEPA Hazardous Substance Superfund or into the Curtis Specialty Papers Superfund Site SpecialAccount within the EPA Hazardous Substance Superfund to be retained and used to conduct orfinance response actions at or in connection with the Site, or to be transferred by EPA to the EPAHazardous Substance Superfund.

e. All EPA Work Takeover costs not paid under this Paragraph 30 must bereimbursed as Future Response Costs under Section X (Payments for Response Costs).

31. Modification of Amount, Form, or Terms of Financial Assurance. SettlingDefendants may submit, on any anniversary of the Effective Date or at any other time agreed toby the Parties, a request to reduce the amount, or change the form or terms, of the financialassurance mechanism. Any such request must be submitted to EPA in accordance withParagraph 28, and must include an estimate of the cost of the remaining Work, an explanation ofthe bases for the cost calculation, and a description of the proposed changes, if any, to the formor terms of the financial assurance. EPA will notify Settling Defendants of its decision toapprove or disapprove a requested reduction or change pursuant to this Paragraph. SettlingDefendants may reduce the amount of the financial assurance mechanism only in accordancewith: (a) EPA's approval; or (b) if there is a dispute, the agreement, final administrative decision,or final judicial decision resolving such dispute under Section XIII (Dispute Resolution). Anydecision made by EPA on a request submitted under this Paragraph to change the form or termsof a financial assurance mechanism shall be made in EPA's sole and unreviewable discretion,and such decision shall not be subject to challenge by Settling Defendants pursuant to the disputeresolution provisions of this Consent Decree or in any other forum. Within 30 days after receipt

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of EPA's approval of, or the agreement or decision resolving a dispute relating to, the requestedmodifications pursuant to this Paragraph, Settling Defendants shall submit to EPAdocumentation of the reduced, revised, or alternative financial assurance mechanism inaccordance with Paragraph 28.

32. Release, Cancellation, or Discontinuation of Financial Assurance. SettlingDefendants may release, cancel, or discontinue any financial assurance provided under thisSection only: (a) if EPA issues a Certification of Work Completion under Paragraph 4.8(Certification of Work Completion) of the SOW; (b) in accordance with EPA's approval of suchrelease, cancellation, or discontinuation; or (c) if there is a dispute regarding the release,cancellation or discontinuance of any financial assurance, in accordance with.the agreement,final administrative decision, or final judicial decision resolving such dispute under toSection XIII (Dispute Resolution).

X. PAYMENTS FOR RESPONSE COSTS

33. Payment by Settling Defendants for United States' Past Response Costs.

a. Within 30 days after the Effective Date, Settling Defendants shall pay toEPA $1,085,390.90 in payment for Past Response Costs. Payment shall be made in accordancewith Paragraph 36.a (instructions for past response cost payments).

b. Deposit of Past Response Costs Payment. The total amount to be paidby Settling Defendants pursuant to Paragraph 33.a shall be deposited by EPA in the CurtisSpecialty Papers Superfund Site Special Account to be retained and used to conduct or financeresponse actions at or in connection with the Site, or to be transferred by EPA to the EPAHazardous Substance Superfund.

34. Settling Defendants hereby assign to EPA any and all rights they may have to thefunds (including any interest) in or from the NJDEP remediation funding source ("RemediationFunding Source") established by Royal Blue Papers, Inc. (a/k/a Curtis Papers, Inc.), pursuant tothe Remediation Agreement regarding the Site, executed on March 1, 2001, in In the Matter ofthe Milford Mill Site Crown Vantage Inc. and Crown Paper Co., Inc., ISRA Case No. 20010036.Settling Defendants shall cooperate with EPA and use their best efforts to assist in the recoveryby EPA of the funds in or from the Remediation Funding Source. For purposes of thisParagraph, "best efforts" shall include, without limitation: (1) requesting, independently ortogether with EPA, that the Remediation Funding Source funds be transferred directly to EPA;and (2) paying to EPA any Remediation Funding Source funds received by IP or GP, within 30days of such receipt, in accordance with Paragraph 36(a) (instructions for past response costpayments). "Best efforts" shall not include obligations by Settling Defendants to undertakeremedial obligations beyond those required by the ROD, by this Consent Decree and itsattachments, or by a related decision document issued by EPA in accordance with the NCP,unless otherwise required by law or agreed in writing by the Parties. Notwithstanding theforegoing, EPA may recover Remediation Funding Source funds only up to the amount of theUnited States' unrecovered response costs related to the Site, plus Interest accruing from the dateof lodging of the Consent Decree through the date of payment; and IP and GP reserve their rightsto receive any Remediation Funding Source funds remaining after recovery by the United Statesof all of its Site-related response costs, plus Interest.

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35. Payments by Settling Defendants for Future Response Costs. SettlingDefendants shall pay to EPA all Future Response Costs not inconsistent with the NCP.

a. On a periodic basis, EPA will send Settling Defendants a bill requiringpayment that includes a Cost Recovery Package Imaging and On-Line System ("SCORPIOS"cost summary, which includes direct and indirect costs incurred by EPA, its contractors,subcontractors, and DOJ. Settling Defendants shall make all payments within 30 days afterSettling Defendants' receipt of each bill requiring payment, except as otherwise provided inParagraph 37, in accordance with Paragraph 36.b (instructions for future response costpayments).

b. Deposit of Future Response Costs Payments. The total amount to bepaid by Settling Defendants pursuant to Paragraph 35.a shall be deposited by EPA in the CurtisSpecialty Papers Superfund Site Special Account to be retained and used to conduct or financeresponse actions at or in connection with the Site, or to be transferred by EPA to the EPAHazardous Substance Superfund, provided, however, that EPA may deposit a Future ResponseCosts payment directly into the EPA Hazardous Substance Superfund if, at the time the paymentis received, EPA estimates that the Curtis Specialty Papers Superfund Site Special Accountbalance is sufficient to address currently anticipated future response actions to be conducted orfinanced by EPA at or in connection with the Site.

c. After EPA issues the Certification of RA Completion pursuant toParagraph 4.7 (Certification of RA Completion) of the SOW and a final accounting of the CurtisSpecialty Papers Superfund Site Special Account (including crediting Settling Defendants forany amounts received under Paragraph 35.a (periodic bill), EPA will apply any unused amountpaid by Settling Defendants pursuant to Paragraph 35.a to any other unreimbursed response costsor response actions remaining at the Site. Any decision by EPA to apply unused amounts tounreimbursed response costs or response actions remaining at the Site shall not be subject tochallenge by Settling Defendants pursuant to the dispute resolution provisions of this ConsentDecree or in any other forum.

36. Payment Instructions for Settling Defendants.

a. Past Response Costs Payments.

(1) The Financial Litigation Unit ("FLU") of the United StatesAttorney's Office for the District of New Jersey shall provide Settling Defendants, inaccordance with Paragraph 33.a, with instructions regarding making payments to DOJon behalf of EPA. The instructions must include a Consolidated Debt Collection System(CDCS) number to identify payments made under this Consent Decree.

(2) For all payments subject to this Paragraph 36.a, SettlingDefendants shall make such payment by Fedwire Electronic Funds Transfer ("EFT") / athttps://www.pay.gov to the U.S. DOJ account, in accordance with the instructionsprovided under Paragraph 36.a(1), and including references to the CDCS Number,Site/Spill ID Number 02ZD, and DJ Number 90-5-2-1-11436.

(3) For each payment made under this Paragraph 36.a, SettlingDefendants shall send notices, including references to the CDCS, Site/Spill ID, and DJ

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numbers, to the United States, EPA, and the EPA Cincinnati Finance Center, all inaccordance with Paragraph 92.

b. Future Response Costs Payments and Stipulated Penalties.

(1) For all payments subject to this Paragraph 36.b, SettlingDefendants shall make such payment by Fedwire EFT, referencing the Site/Spill ID andDJ numbers. The Fedwire EFT payment must be sent as follows:

Federal Reserve Bank of New YorkABA = 021030004Account = 68010727SWIFT address = FRNYUS3333 Liberty StreetNew York NY 10045Field Tag 4200 of the Fedwire message should read

"D 68010727 Environmental Protection Agency"

(2) For all payments made under this Paragraph 36.b, SettlingDefendants must include references to the Site/Spill ID and DJ numbers. At the time ofany payment required to be made in accordance with Paragraph 36.b, SettlingDefendants shall send notices that payment has been made to the United States, EPA,and the EPA Cincinnati Finance Center, all in accordance with Paragraph 92. All noticesmust include references to the Site/Spill ID and DJ numbers.

37. Contesting Future Response Costs. Settling Defendants may submit a Notice ofDispute, initiating the procedures of Section XIII (Dispute Resolution), regarding any FutureResponse Costs billed under Paragraph 35 (Payments by Settling Defendants for FutureResponse Costs) if they determine that EPA has made a mathematical error or included a costitem that is not within the definition of Future Response Costs, or if they believe EPA incurredexcess costs as a direct result of an EPA action that was inconsistent with a specific provision orprovisions of the NCP. Such Notice of Dispute shall be submitted in writing within 30 days afterreceipt of the bill and must be sent to the United States (if the United States' accounting is beingdisputed) pursuant to Section XX (Notices and Submissions). Such Notice of Dispute shallspecifically identify the contested Future Response Costs and the basis for objection. If SettlingDefendants submit a Notice of Dispute, Settling Defendants shall pay all uncontested FutureResponse Costs to the United States within 30 days after Settling Defendants' receipt of the billrequiring payment. Simultaneously, Settling Defendants shall establish, in a duly chartered bankor trust company, an interest-bearing escrow account that is insured by the Federal DepositInsurance Corporation ("FDIC"), and remit to that escrow account funds equivalent to theamount of the contested Future Response Costs. Settling Defendants shall send to the UnitedStates, as provided in Section XX (Notices and Submissions), a copy of the transmittal letter andcheck paying the uncontested Future Response Costs, and a copy of the correspondence thatestablishes and funds the escrow account, including, but not limited to, information containingthe identity of the bank and bank account under which the escrow account is established as wellas a bank statement showing the initial balance of the escrow account. If the United Statesprevails in the dispute, Settling Defendants shall pay the sums due (with accrued interest) to theUnited States within 7 days after the resolution of the dispute. If Settling Defendants prevailconcerning any aspect of the contested costs, Settling Defendants shall pay that portion of the

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costs (plus associated accrued interest) for which they did not prevail to the United States within7 days after the resolution of the dispute. Settling Defendants shall be disbursed any balance ofthe escrow account. All payments to the United States under this Paragraph shall be made inaccordance with Paragraph 36.b (instructions for future response cost payments). The disputeresolution procedures set forth in this Paragraph in conjunction with the procedures set forth inSection XIII (Dispute Resolution) shall be the exclusive mechanisms for resolving disputesregarding Settling Defendants' obligation to .reimburse the United States for its Future ResponseCosts.

38. Interest. In the event that any payment for Past Response Costs or for FutureResponse Costs required under this Section is not made by the date required, Settling Defendantsshall pay Interest on the unpaid balance. The Interest on Past Response Costs under thisParagraph shall begin to accrue on the Effective Date. The Interest on all subsequent FutureResponse Costs shall begin to accrue on the date of the bill. The Interest shall accrue through thedate of Settling Defendants' payment. Payments of Interest made under this Paragraph shall be inaddition to such other remedies or sanctions available to Plaintiffs by virtue of SettlingDefendants' failure to make timely payments under this Section including, but not limited to,payment of stipulated penalties pursuant to Paragraph 54 (Stipulated Penalty Amounts: Work).

XI. INDEMNIFICATION AND INSURANCE

39. Settling Defendants' Indemnification of the United States.

a. The United States does not assume any liability by entering into thisConsent Decree or by virtue of any designation of Settling Defendants as EPA's authorizedrepresentatives under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e). Settling Defendantsshall indemnify, save, and hold harmless the United States and its officials, agents, employees,contractors, subcontractors, and representatives for or from any and all claims or causes of actionarising from, or on account of, negligent or other wrongful acts or omissions of SettlingDefendants, their officers, directors, employees, agents, contractors, subcontractors, and anypersons acting on Settling Defendants' behalf or under their control, in carrying out activitiespursuant to this Consent Decree, including, but not limited to, any claims arising from anydesignation of Settling Defendants as EPA's authorized representatives under Section 104(e) ofCERCLA. Further, Settling Defendants agree to pay the United States all costs it incursincluding, but not limited to, attorneys' fees and other expenses of litigation and settlementarising from, or on account of, claims made against the United States based on negligent or otherwrongful acts or omissions of Settling Defendants, their officers, directors, employees, agents,contractors, subcontractors, and any persons acting on their behalf or under their control, incarrying out activities pursuant to this Consent Decree. The United States shall not be held out asa party to any contract entered into by or on behalf of Settling Defendants in carrying outactivities pursuant to this Consent Decree. Neither Settling Defendants nor any such contractorshall be considered an agent of the United States.

b. The United States shall give Settling Defendants notice of any claim forwhich the United States plans to seek indemnification pursuant to this Paragraph 39, and shallconsult with Settling Defendants prior to settling such claim.

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40. Settling Defendants covenant not to sue and agree not to assert any claims orcauses of action against the United States for damages or reimbursement or for set-off of anypayments made or to be made to the United States, arising from or on account of any contract,agreement, or arrangement between any one or more of Settling Defendants and any person forperformance of Work on or relating to the Site, including, but not limited to, claims on accountof construction delays. In addition, Settling Defendants shall indemnify, save and hold harmlessthe United States with respect to any and all claims for damages or reimbursement arising fromor on account of any contract, agreement, or arrangement between any one or more of SettlingDefendants and any person for performance of Work on or relating to the Site, including, but notlimited to, claims on account of construction delays.

41. Insurance. No later than 15 days before commencing any on-site Work, SettlingDefendants shall secure, and shall maintain until the first anniversary after issuance of EPA'sCertification of RA Completion pursuant to Paragraph 4.7 (Certification of RA Completion) ofthe SOW commercial general liability insurance with limits of $3 million, for any oneoccurrence, and automobile liability insurance with limits of $3 million, combined single limit,naming the United States as an additional insured with respect to all liability arising out of theactivities performed by or on behalf of Settling Defendants pursuant to this Consent Decree. Inaddition, for the duration of this Consent Decree, Settling Defendants shall satisfy, or shallensure that their contractors or subcontractors satisfy, all applicable laws and regulationsregarding the provision of worker's compensation insurance for all persons performing the Workon behalf of Settling Defendants in furtherance of this Consent Decree. Prior to commencementof the Work, Settling Defendants shall provide to EPA certificates of such insurance and a copyof each insurance policy. Settling Defendants shall resubmit such certificates and copies ofpolicies each year on the anniversary of the Effective Date. If Settling Defendants demonstrateby evidence satisfactory to EPA that any contractor or subcontractor maintains insuranceequivalent to that described above, or insurance covering the same risks but in a lesser amount,then, with respect to that contractor or subcontractor, Settling Defendants need provide only thatportion of the insurance described above that is not maintained by the contractor orsubcontractor. Settling Defendants shall ensure that all submittals to EPA under this Paragraphidentify the Curtis Specialty Papers Superfund Site, Milford, New Jersey and civil actionnumber. Settling Defendants, on behalf of themselves or their contractors, as appropriate, mayassert that all or part of any Records submitted under this Paragraph 41 is business confidential,pursuant to Paragraph 86 (Business Confidential Claims), and that such Records shall be deemedvoluntarily submitted for purposes of 40 C.F.R. 2.201(h).

XII. FORCE MAJEURE

42. "Force majeure," for purposes of this Consent Decree, is defined as any eventarising from causes beyond the control of Settling Defendants, of any entity controlled bySettling Defendants, or of Settling Defendants' contractors that delays or prevents theperformance of any obligation under this Consent Decree despite Settling Defendants' bestefforts to fulfill the obligation. The requirement that Settling Defendants exercise "best efforts tofulfill the obligation" includes using best efforts to anticipate any potential force majeure andbest efforts to address the effects of any potential force majeure (a) as it is occurring and (b)following the potential force majeure such that the delay and any adverse effects of the delay are

22


minimized to the greatest extent possible. "Force majeure" does not include financial inability tocomplete the Work or a failure to achieve the Performance Standards.

43. If any event occurs or has occurred that may delay the performance of anyobligation under this Consent Decree for which Settling Defendants intend or may intend toassert a claim of force majeure, Settling Defendants shall notify EPA's Project Coordinatororally or, in his or her absence, EPA's Alternate Project Coordinator or, in the event both ofEPA's designated representatives are unavailable, the Director of the Emergency and RemedialResponse Division, EPA Region 2, within 3 days of when Settling Defendants first knew that theevent might cause a delay. Within 5 days thereafter, Settling Defendants shall provide in writingto EPA an explanation and description of the reasons for the delay; the anticipated duration ofthe delay; all actions taken or to be taken to prevent or minimize the delay; a schedule forimplementation of any measures to be taken to prevent or mitigate the delay or the effect of thedelay; Settling Defendants' rationale for attributing such delay to a force majeure; and astatement as to whether, in the opinion of Settling Defendants, such event may cause orcontribute to an endangerment to public health or welfare, or the environment. SettlingDefendants shall include with any notice all available documentation supporting their claim thatthe delay was attributable to a force majeure. Settling Defendants shall be deemed to know ofany circumstance of which Settling Defendants, any entity controlled by Settling Defendants, orSettling Defendants' contractors or subcontractors knew or should have known. Failure tocomply with the above requirements regarding an event shall preclude Settling Defendants fromasserting any claim of force majeure regarding that event, provided, however, that if EPA,despite the late or incomplete notice, is able to assess to its satisfaction whether the event is aforce majeure under Paragraph 42 and whether Settling Defendants have exercised their bestefforts under Paragraph 42, EPA may, in its unreviewable discretion, excuse in writing SettlingDefendants' failure to submit timely or complete notices under this Paragraph.

44. If EPA, after a reasonable opportunity for review and comment by the State,agrees that the delay or anticipated delay is attributable to a force majeure, the time forperformance of the obligations under this Consent Decree that are affected by the force majeurewill be extended by EPA, after a reasonable opportunity for review and comment by the State,for such time as is necessary to complete those obligations. An extension of the time forperformance of the obligations affected by the force majeure shall not, of itself, extend the timefor performance of any other obligation. If EPA, after a reasonable opportunity for review andcomment by the State, does not agree that the delay or anticipated delay has been or will becaused by a force majeure, EPA will notify Settling Defendants in writing of its decision. IfEPA, after a reasonable opportunity for review and comment by the State, agrees that the delay isattributable to a force majeure, EPA will notify Settling Defendants in writing of the length ofthe extension, if any, for performance of the obligations affected by the force majeure.

45. If Settling Defendants elect to invoke the dispute resolution procedures set forthin Section XIII (Dispute Resolution) regarding EPA's'decision, they shall do so no later than15 days after receipt of EPA's notice. In any such proceeding, Settling Defendants shall have theburden of demonstrating by a preponderance of the evidence that the delay or anticipated delayhas been or will be caused by a force majeure, that the duration of the delay or the extensionsought was or will be warranted under the circumstances, that best efforts were exercised toavoid and mitigate the effects of the delay, and that Settling Defendants complied with therequirements of Paragraphs 42 and 43. If Settling Defendants carry this burden, the delay at issue

23


shall be deemed not to be a violation by Settling Defendants of the affected obligation of thisConsent Decree identified to EPA and the Court.

46. The failure by EPA to timely complete any obligation under the Consent Decreeor under the SOW is not a violation of the Consent Decree, provided, however, that if suchfailure prevents Settling Defendants from meeting one or more deadlines in the SOW, SettlingDefendants may seek relief under this Section.

XIII. DISPUTE RESOLUTION

47. Unless otherwise expressly provided for in this Consent Decree, the disputeresolution procedures of this Section shall be the exclusive mechanism to resolve disputesregarding this Consent Decree. However, the procedures set forth in this Section shall not applyto actions by the United States to enforce obligations of Settling Defendants that have not beendisputed in accordance with this Section.

48. A dispute shall be considered to have arisen when one party sends the otherparties a written Notice of Dispute. Any dispute regarding this Consent Decree shall in the firstinstance be the subject of informal negotiations between the parties to the dispute. The period forinformal negotiations shall not exceed 20 days from the time the dispute arises, unless it ismodified by written agreement of the parties to the dispute.

49. Statements of Position.

a. In the event that the parties cannot resolve a dispute by informalnegotiations under the preceding Paragraph, then the position advanced by EPA shall beconsidered binding unless, within 10 days after the conclusion of the informal negotiation period,Settling Defendants invoke the formal dispute resolution procedures of this Section by servingon the United States a written Statement of Position on the matter in dispute, including, but notlimited to, any factual data, analysis, or opinion supporting that position and any supportingdocumentation relied upon by Settling Defendants. The Statement of Position shall specifySettling Defendants' position as to whether formal dispute resolution should proceed underParagraph 50 (Record Review) or 51.

b. Within 30 days after receipt of Settling Defendants' Statement of Position,EPA will serve on Settling Defendants its Statement of Position, including, but not limited to,any factual data, analysis, or opinion supporting that position and all supporting documentationrelied upon by EPA. EPA's Statement of Position shall include a statement as to whether formaldispute resolution should proceed under Paragraph 50 (Record Review) or 51. Within 10 daysafter receipt of EPA's Statement of Position, Settling Defendants may submit a Reply.

c. If there is disagreement between EPA and Settling Defendants as towhether dispute resolution should proceed under Paragraph 50 (Record Review) or 51, theparties to the dispute shall follow the procedures set forth in the Paragraph determined by EPA tobe applicable. However, if Settling Defendants ultimately appeal to the Court to resolve thedispute, the Court shall determine which Paragraph is applicable in accordance with thestandards of applicability set forth in Paragraphs 50 and 51.

50. Record Review. Formal dispute resolution for disputes pertaining to the selectionor adequacy of any response action and all other disputes that are accorded review on the

24


administrative record under applicable principles of administrative law shall be conductedpursuant to the procedures set forth in this Paragraph. For purposes of this Paragraph, theadequacy of any response action includes, without limitation, the adequacy or appropriateness ofplans, procedures to implement plans, or any other items requiring approval by EPA under thisConsent Decree, and the adequacy of the performance of response actions taken pursuant to thisConsent Decree. Nothing in this Consent Decree shall be construed to allow any dispute bySettling Defendants regarding the validity of the ROD's provisions.

a. An administrative record of the dispute shall be maintained by EPA andshall contain all statements of position, including supporting documentation, submitted pursuantto this Section. Where appropriate, EPA may allow submission of supplemental statements ofposition by the parties to the dispute.

b. The Director of the Emergency and Remedial Response Division, EPARegion 2, will issue a final administrative decision resolving the dispute based on theadministrative record described in Paragraph SO.a. This decision shall be binding upon SettlingDefendants, subject only to the right to seek judicial review pursuant to Paragraphs SO.c andSO.d.

c. Any administrative decision made by EPA pursuant to Paragraph SO.bshall be reviewable by this Court, provided that a motion for judicial review of the decision isfiled by Settling Defendants with the Court and served on all Parties within 10 days after. receiptof EPA's decision. The motion shall include a description of the matter in dispute, the effortsmade by the parties to resolve it, the relief requested, and the schedule, if any, within which thedispute must be resolved to ensure orderly implementation of this Consent Decree. The UnitedStates may file a response to Settling Defendants' motion.

d. In proceedings on any dispute governed by this Paragraph, SettlingDefendants shall have the burden of demonstrating that the decision of the Emergency andRemedial Response Division Director is arbitrary and capricious or otherwise not in accordancewith law. Judicial review of EPA's decision shall be on the administrative record compiledpursuant to Paragraph SO.a.

51. Formal dispute resolution for disputes that neither pertain to the selection oradequacy of any response action nor are otherwise accorded review on the administrative recordunder applicable principles of administrative law, shall be governed by this Paragraph.

a. The Director of the Emergency and Remedial Response Division, EPARegion 2, will issue a final decision resolving the dispute based on the statements of position andreply, if any, served under Paragraph 49. The Emergency and Remedial Response DivisionDirector's decision shall be binding on Settling Defendants unless, within 10 days after receipt ofthe decision, Settling Defendants file with the Court and serve on the parties a motion for judicialreview of the decision setting forth the matter in dispute; the efforts made by the parties toresolve it, the relief requested, and the schedule, if any, within which the dispute must beresolved to ensure orderly implementation of the Consent Decree. The United States may file aresponse to Settling Defendants' motion.

25


b. Notwithstanding Paragraph M (CERCLA § 113(j) record review of RODand Work) of Section I (Background), judicial review of any dispute governed by this Paragraphshall be governed by applicable principles of law.

52. The invocation of formal dispute resolution procedures under this Section doesnot extend, postpone, or affect in any way any obligation of Settling Defendants under thisConsent Decree, except as provided in Paragraph 37 (Contesting Future Response Costs), asagreed by EPA, or as determined by the Court. Stipulated penalties with respect to the disputedmatter shall continue to accrue, but payment shall be stayed pending resolution of the dispute, asprovided in Paragraph 60. Notwithstanding the stay of payment, stipulated penalties shall accruefrom the first day of noncompliance with any applicable provision of this Consent Decree. In theevent that Settling Defendants do not prevail on the disputed issue, stipulated penalties shall beassessed and paid as provided in Section XIV (Stipulated Penalties).

XIV. STIPULATED PENALTIES

53. Settling Defendants shall be liable to the United States for stipulated penalties inthe amounts set forth in Paragraphs 54 and 55 for failure to comply with the obligations specifiedin Paragraphs 54 and 55, unless excused under Section XII (Force Majeure). "Compliance" bySettling Defendants shall include completion of all obligations under this Consent Decree, inaccordance with all applicable requirements of this Consent Decree, and within the specifiedtime schedules established by and approved under this Consent Decree. If an initially submittedor resubmitted deliverable contains a material defect, and the deliverable is disapproved ormodified by EPA under Paragraph 6.6(a) (Initial Submissions) or 6.6(b) (Resubmissions) of theSOW due to such material defect, then the material defect shall constitute a lack of compliancefor purposes of this Paragraph. The provisions of Section XIII (Dispute Resolution) and SectionXIV (Stipulated Penalties) shall govern the accrual and payment of any stipulated penaltiesregarding Settling Defendants' submissions under this Consent Decree.

54. Stipulated Penalty Amounts: Work (Including Payments, Financial Assurance,or Deliverables. and Other Milestonesl.

a. The following stipulated penalties shall accrue per violation per day forany noncompliance with any obligation identified in Paragraph 54.b:

Period of Noncompliance Penalty Per Violation Per Day1st through 14th day $1,50015th through 30th day $2,50031st day and beyond $5,000

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b. Obli ate.

(1) RD Schedule

IncludedDescription of Supporting SOWDeliverable, Task Deliverables Ref. DeadlineRD Work Plan Health and 3.1, 6.7 21 days after EPA's Authorization("RDWP") Safety Plan and to Proceed regarding Supervising

Emergency Contractor under CDResponse Plan;Field SamplingPlan ("FSP") andQualityAssuranceProject Plan("QAPP") ifneeded, SiteWide MonitoringPlan ("SWMP"

Treatability Study FSP and QAPP 3.3(b) 30 days after EPA approval ofWork Plan specific to TS RDWP("TS WP") activities,

reference toappropriateRDWPdocuments

TS Evaluation 3.3(c) 30 days after receipt of finalReport validated data from TS

implementationPreliminary (30%) Same as RDWP 3.4 30 days after EPA comments on TSRD plus CQA/QCP, Evaluation Report

O&M Plan,O&M Manual,InstitutionalControlsImplementationand AssurancePlan

Pre-final (95%) RD Same as 3.5 45 days after EPA comments onPreliminary Preliminary (30%) RD(30%) RD

Final (100%) RD Same as Pre-final 3.6 30 days after EPA comments on(95%) RD Pre-final (95%) RD

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(2) RA Schedule

Description of SOWDeliverable /Task Ref. DeadlineAward RA contract 75 days after Approval of Final (100%) RDRA Work Plan ("RAWP") 4.1 105 days after Approval of Final (100%) RDPreconstruction Conference 4.2(a) 14 days after Approval of RAWP

30 days after Approval of RAWP or asStart of Construction otherwise set forth in the approved RAWP.Completion of Construction 4.5Inspection of ConstructedRemedy 4.5(d) 21 days after completion of construction

30 days after EPA determination thatshakedown period is complete and remedy isfunctioning properly and performing as

RA Report 4.5(d) designedInitial PRSP, 30 days after Approval of RAReport. Subsequent PRSPs, 30 days after

Periodic Review Support Plan 4.6 EPA issuance of Five-Year Review ReportMonitoring Report 4.7(a)Work Completion Inspection 4.8(a)Work Completion Report 4.8(b)

(3) Establishment and maintenance of financial assurance incompliance with the timelines and other substantive and procedural requirements ofSection IX (Financial Assurance);

(4) Timely payment of any amount due pursuant to Section X(Payments for Response Costs).

55. Stipulated Penalty Amounts: Other Violations (Including Reports and OtherDeliverables).

a. The following stipulated penalties shall accrue per violation per day forany noncompliance with the obligations of this Consent Decree not identified in Paragraph 54,including but not limited to failure to submit timely or adequate reports or other deliverablespursuant to the Consent Decree:

Period of Noncompliance Penalty Per Violation Per Day1st through 14th day $1,00015th through 30th day $1,50031st day and beyond $2,500

56. In the event that EPA assumes performance of a portion or all of the Workpursuant to Paragraph 70 (Work Takeover), Settling Defendants shall be liable for a stipulatedpenalty in the amount of $1,000,000. Stipulated penalties under this Paragraph are in addition tothe remedies available under Paragraphs 30 (Access to Financial Assurance) and 70 (WorkTakeover).

28


57. All penalties shall begin to accrue on the day after the complete performance isdue or the day a violation occurs and shall continue to accrue through the final day of thecorrection of the noncompliance or completion of the activity. However, stipulated penaltiesshall not accrue: (a) with respect to a deficient submission under Paragraph 6.6 (Approval ofDeliverables) of the SOW, during the period, if any, beginning on the 31st day after EPA'sreceipt of such submission until the date that EPA notifies Settling Defendants of any deficiency;(b) with respect to a decision by the Director of the Emergency and Remedial ResponseDivision, EPA Region 2, under Paragraph SO.b or S l.a of Section XIII (Dispute Resolution),during the period, if any, beginning on the 21st day after the date that Settling Defendants' replyto EPA's Statement of Position is received until the date that the Director issues a final decisionregarding such dispute; or (c) with respect to judicial review by this Court of any dispute underSection XIII (Dispute Resolution), during the period, if any, beginning on the 31st day after theCourt's receipt of the final submission regarding the dispute until the date that the Court issues afinal decision regarding such dispute. Nothing in this Consent Decree shall prevent thesimultaneous accrual of separate penalties for separate violations of this Consent Decree.

58. Following EPA's determination that Settling Defendants have failed to complywith a requirement of this Consent Decree, EPA may give Settling Defendants writtennotification of the same and describe the noncompliance. EPA may send Settling Defendants awritten demand for payment of the penalties. However, penalties shall accrue as provided in thepreceding Paragraph regardless of whether EPA has notified Settling Defendants of a violation.

59. All penalties accruing under this Section shall be due and payable to the UnitedStates within 30 days after Settling Defendants' receipt from EPA of a demand for payment ofthe penalties, unless Settling Defendants invoke the Dispute Resolution procedures under SectionXIII (Dispute Resolution) within the 30-day period. All payments to the United States under thisSection shall indicate that the payment is for stipulated penalties and shall be made in accordancewith Paragraph 36.b (instructions for future response cost payments).

60. Penalties shall continue to accrue as provided in Paragraph 57 during any disputeresolution period, but need not be paid until the following:

a. If the dispute is resolved by agreement of the parties or by a decision ofEPA that is not appealed to this Court, accrued penalties determined to be owed shall be paid toEPA within 15 days after the agreement or the receipt of EPA's decision or order;

b. If the dispute is appealed to this Court and the United States prevails inwhole or in part, Settling Defendants shall pay all accrued penalties determined by the Court tobe owed to EPA within 60 days after receipt of the Court's decision or order, except as providedin Paragraph 60.c;

c. If the District Court's decision is appealed by any Party, SettlingDefendants shall pay all accrued penalties determined by the District Court to be owed to theUnited States into aninterest-bearing escrow account, established at a duly chartered bank ortrust company that is insured by the FDIC, within 60 days after receipt of the Court's decision ororder. Penalties shall be paid into this account as they continue to accrue, at least every 60 days.Within 15 days after receipt of the final appellate court decision, the escrow agent shall pay thebalance of the account to EPA or to Settling Defendants to the extent that they prevail.

29


61. If Settling Defendants fail to pay stipulated penalties when due, SettlingDefendants shall pay Interest on the unpaid stipulated penalties as follows: (a) if SettlingDefendants have timely invoked dispute resolution such that the obligation to pay stipulatedpenalties has been stayed pending the outcome of dispute resolution, Interest shall accrue fromthe date stipulated penalties are due pursuant to Paragraph 60 until the date of payment; and (b)if Settling Defendants fail to timely invoke dispute resolution, Interest shall accrue from the dateof demand under Paragraph 59 until the date of payment. If Settling Defendants fail to paystipulated penalties and Interest when due, the United States may institute proceedings to collectthe penalties and Interest.

62. The payment of penalties and Interest, if any, shall not alter in any way SettlingDefendants' obligation to complete the performance of the Work required under this ConsentDecree.

63. Nothing in this Consent Decree shall be construed as prohibiting, altering, or inany way limiting the ability of the United States to seek any other remedies or sanctionsavailable by virtue of Settling Defendants' violation of this Consent Decree or of the statutes andregulations upon which it is based, including, but not limited to, penalties pursuant to Section1220 of CERCLA, 42 U.S.C. § 96220, provided, however, that the United States shall not seekcivil penalties pursuant to Section 1220 of CERCLA for any violation for which a stipulatedpenalty is provided in this Consent Decree, except in the case of a willful violation of thisConsent Decree.

64. Notwithstanding any other provision of this Section, the United States may, in itsunreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant tothis Consent Decree.

XV. COVENANTS BY PLAINTIFF

65. Covenants for Settling Defendants by United States.

Except as provided in Paragraphs 66, 67 (United States' Pre- and Post-CertificationReservations), and 69 (General Reservations of Rights), the United States covenants not to sue orto take administrative action against Settling Defendants pursuant to Sections 106 and 107(a) ofCERCLA, relating to the Site. Except with respect to future liability, these covenants shall takeeffect upon the Effective Date. With respect to future liability, these covenants shall take effectupon Certification of RA Completion by EPA pursuant to Paragraph 4.7 (Certification of RACompletion) of the SOW. These covenants are conditioned upon the satisfactory performance bySettling Defendants of their obligations under this Consent Decree. These covenants extend onlyto Settling Defendants and do not extend to any other person.

66. United States' Pre-Certification Reservations. Notwithstanding any otherprovision of this Consent Decree, the United States reserves, and this Consent Decree is withoutprejudice to, the right to institute proceedings in this action or in a new action, and/or to issue anadministrative order, seeking to compel Settling Defendants to perform further response actionsrelating to the Site and/or to pay the United States for additional costs of response if, (a) prior toCertification of RA Completion, (1) conditions at the Site, previously unknown to EPA, arediscovered, or (2) information, previously unknown to EPA, is received, in whole or in part, and(b) EPA determines that these previously unknown conditions or information together with any

30


other relevant information indicates that the RA is not protective of human health or theenvironment.

67. United States' Post-Certification Reservations. Notwithstanding any otherprovision of this Consent Decree, the United States reserves, and this Consent Decree is withoutprejudice to, the right to institute proceedings in this action or in a new action, and/or to issue anadministrative order, seeking to compel Settling Defendants to perform further response actionsrelating to the Site andJor to pay the United States for additional costs of response if,(a) subsequent to Certification of RA Completion, (1) conditions at the Site, previously unknownto EPA, are discovered, or (2) information, previously unknown to EPA, is received, in whole orin part, and (b) EPA determines that these previously unknown conditions or this informationtogether with other relevant information indicate that the RA is not protective of human health orthe environment.

68. For purposes of Paragraph 66 (United States' Pre-Certification Reservations), theinformation and the conditions known to EPA will include only that information and thoseconditions known to EPA as of the date the ROD was signed and set forth in the ROD for theSite and the administrative record supporting the ROD. For purposes of Paragraph 67 (UnitedStates' Post-Certification Reservations), the information and the conditions known to EPA shallinclude only that information and those conditions known to EPA as of the date of Certificationof RA Completion and set forth in the ROD, the administrative record supporting the ROD, thepost-ROD administrative record, or in any information received by EPA pursuant to therequirements of this Consent Decree prior to Certification of RA Completion.

69. General Reservations of Rights. The United States reserves, and this ConsentDecree is without prejudice to, all rights against Settling Defendants with respect to all mattersnot expressly included within Plaintiff's covenants. Notwithstanding any other provision of thisConsent Decree, the United States reserves all rights against Settling Defendants with respect to:

a. liability for failure by Settling Defendants to meet a requirement of thisConsent Decree;

b. liability arising from the past, present, or future disposal, release, or threatof release of Waste Material outside of the Site;

c. liability based on the ownership of the Site by Settling Defendants whensuch ownership commences after signature of this Consent Decree by Settling Defendants;

d. liability based on the operation of the Site by Settling Defendants whensuch operation commences after signature of this Consent Decree by Settling Defendants anddoes not arise solely from Settling Defendants' performance of the Work;

e. liability based on Settling Defendants' transportation, treatment, storage,or disposal, or arrangement for transportation, treatment, storage, or disposal of Waste Materialat or in connection with the Site, other than as provided in the ROD, the Work, or otherwiseordered by EPA, after signature of this Consent Decree by Settling Defendants;

f. liability for damages for injury to, destruction of, or loss of naturalresources, and for the costs of any natural resource damage assessments;

31


g. criminal liability;

h. liability for violations of federal or state law that occur during or afterimplementation of the Work; and

i. liability, prior to achievement of Performance Standards, for additionalresponse actions that EPA determines are necessary to achieve and maintain PerformanceStandards or to carry out and maintain the effectiveness of the remedy set forth in the ROD, butthat cannot be required pursuant to Paragraph 13 (Modification of SOW or RelatedDeliverables).

70. Work Takeover.

a. In the event EPA determines that Settling Defendants: (1) have ceasedimplementation of any portion of the Work; (2) are seriously or repeatedly deficient or late intheir performance of the Work; or (3) are implementing the Work in a manner that may cause anendangerment to human health or the environment, EPA may issue a written notice ("WorkTakeover Notice") to Settling Defendants. Any Work Takeover Notice issued by EPA willspecify the grounds upon which such notice was issued and will provide Settling Defendants aperiod of 10 days within which to remedy the circumstances giving rise to EPA's issuance ofsuch notice.

b. If, after expiration of the 10-day notice period specified in Paragraph 70.a,Settling Defendants have not remedied to EPA's satisfaction the circumstances giving rise toEPA's issuance of the relevant Work Takeover Notice, EPA may at any time thereafter assumethe performance of all or any portions) of the Work as EPA deems necessary ("WorkTakeover"). EPA will notify Settling Defendants in writing (which writing may be electronic) ifEPA determines that implementation of a Work Takeover is warranted under thisParagraph 70.b. Funding of Work Takeover costs is addressed under Paragraph 30 (Access toFinancial Assurance).

c. Settling Defendants may invoke the procedures set forth in Paragraph 50(Record Review), to dispute EPA's implementation of a Work Takeover under Paragraph 70.b.However, notwithstanding Settling Defendants' invocation of such dispute resolutionprocedures, and during the pendency of any such dispute, EPA may in its sole discretioncommence and continue a Work Takeover under Paragraph 70.b until the earlier of (1) the datethat Settling Defendants remedy, to EPA's satisfaction, the circumstances giving rise to EPA'sissuance of the relevant Work Takeover Notice, or (2) the date that a final decision is rendered inaccordance with Paragraph 50 (Record Review) requiring EPA to terminate such WorkTakeover.

71. Notwithstanding any other provision of this Consent Decree, the United Statesretains all authority and reserves all rights to take any and all response actions authorized by law.

XVI. COVENANTS BY SETTLING DEFENDANTS

72. Covenants by Settling Defendants. Subject to the reservations in Paragraph 74,Settling Defendants covenant not to sue and agree not to assert any claims or causes of actionagainst the United States with respect to the Site, and this Consent Decree, including, but notlimited to:

K~


a. any direct or indirect claim for reimbursement from the EPA HazardousSubstance Superfund through CERCLA §§ 106(b)(2), 107, 111, 112 or 113, or any otherprovision of law;

b. any claims under CERCLA § § 107 or 113, RCRA Section 7002(a),42 U.S.C. § 6972(a), or state law regarding the Site and this Consent Decree; or

c. any claims arising out of response actions at or in connection with the Site,including any claim under the United States Constitution, the State of New Jersey Constitution,the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or atcommon law.

73. Except as provided in Paragraphs 76 (Waiver of Claims by Settling Defendants)and 83 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if theUnited States brings a cause of action or issues an order pursuant to any of the reservations inSection XV (Covenants by Plaintiff ,other than in Paragraphs 69.a (claims for failure to meet arequirement of the Consent Decree), 69.g (criminal liability), and 69.h (violations of federal/statelaw during or after implementation of the Work), but only to the extent that Settling Defendants'claims arise from the same response action, response costs, or damages that the United States isseeking pursuant to the applicable reservation.

74. Settling Defendants reserve, and this Consent Decree is without prejudice to,claims against the United States, subject to the provisions of Chapter 171 of Title 28 of theUnited States Code, and brought pursuant to any statute other than CERCLA or RCRA and forwhich the waiver of sovereign immunity is found in a statute other than CERCLA or RCRA, formoney damages for injury or loss of property or personal injury or death caused by the negligentor wrongful act or omission of any employee of the United States, as that term is defined in28 U.S.C. § 2671, while acting within the scope of his or her office or employment undercircumstances where the United States, if a private person, would be liable to the claimant inaccordance with the law of the place where the act or omission occurred. However, the foregoingshall not include any claim based on EPA's selection of response actions, or the oversight orapproval of Settling Defendants' deliverables or activities.

75. Nothing in this Consent Decree shall be deemed to constitute approval orpreauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or40 C.F.R. § 300.700(d).

76. Waiver of Claims by Settling Defendants.

a. Settling Defendants agree not to assert any claims and to waive all claimsor causes of action (including but not limited to claims or causes of action under Sections 107(a)and 113 of CERCLA) that they may have:

(1) De Micromis Waiver. For all matters relating to the Site againstany person where the person's liability to Settling Defendants with respect to the Site isbased solely on having arranged for disposal or treatment, or for transport for disposal ortreatment, of hazardous substances at the Site, or having accepted for transport fordisposal or treatment of hazardous substances at the Site, if all or part of the disposal,treatment, or transport occurred before April 1, 2001, and the total amount of material

33


containing hazardous substances contributed by such person to the Site was less than110 gallons of liquid materials or 200 pounds of solid materials; and

(2) De Minimis /Ability to Pay Waiver. For response costs relatingto the Site against any person that has entered or in the future enters into a finalsettlement based on limited ability to pay, with EPA with respect to the Site.

b. Exceptions to Waiver.

(1) The waiver under this Paragraph 76 shall not apply with respect toany defense, claim, or cause of action that a Settling Defendant may have against anyperson otherwise covered by such waiver if such person asserts a claim or cause ofaction relating to the Site against such Settling Defendant.

(2) The waiver under Paragraph 76.a(1) (De Micromis Waiver) shallnot apply to any claim or cause of action against any person otherwise covered by suchwaiver if EPA determines that: (i) the materials containing hazardous substancescontributed to the Site by such person contributed significantly or could contributesignificantly, either individually or in the aggregate, to the cost of the response action ornatural resource restoration at the Site; or (ii) such person has failed to comply with anyinformation request or administrative subpoena issued pursuant to Section 104(e)or 122(e)(3)(B) of CERCLA, 42 U.S.C. § 9604(e) or 9622(e)(3)(B), or Section 3007 ofRCRA, 42 U.S.C. § 6927, or has impeded or is impeding, through action or inaction, theperformance of a response action or natural resource restoration with respect to the Site;or if (iii) such person has been convicted of a criminal violation for the conduct to whichthe waiver would apply and that conviction has not been vitiated on appeal or otherwise.

(3) The waiver under this Paragraph 76 shall not apply to any- claimsor causes of action that Settling Defendants may have against the following:

i. Rexam, Inc. (alk/a Ball Corporation)ii. Image Products Group, LLCiii. KPS Capital Partners, LPiv. Perry Videx, LLCv. Milford Power, LPvi. PurEnergy, LLCvii. Jersey Central Power &Light Companyviii. Elizabethtown Gas Company (a/k/a Southern Company)

77. Settling Defendants agree not to seek judicial review of the final rule listing theSite on the NPL based on a claim that changed site conditions that resulted from the performanceof the Work in any way affected the basis for listing the Site.

XVII. EFFECT OF SETTLEMENT; CONTRIBUTION

78. Except as provided in Paragraph 76 (Waiver of Claims by Settling Defendants),nothing in this Consent Decree shall be construed to create any rights in, or grant any cause ofaction to, any person not a Party to this Consent Decree. Except as provided in Section XVI(Covenants by Settling Defendants), each of the Parties expressly reserves any and all rights(including, but not limited to, pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613), defenses,

34


claims, demands, and causes of action that each Party may have with respect to any matter,transaction, or occurrence relating in any way to the Site against any person not a Party hereto.Nothing in this Consent Decree diminishes the right of the United States, pursuant toSection 1130(2) and (3) of CERCLA, 42 U.S.C. § 96130(2)-(3), to pursue any such persons toobtain additional response costs or response action and to enter into settlements that give rise tocontribution protection pursuant to Section 1130(2).

79. The Parties agree, and by entering this Consent Decree this Court finds, that thisConsent Decree constitutes ajudicially-approved settlement pursuant to which each SettlingDefendant has, as of the Effective Date, resolved liability to the United States within themeaning of Section 1130(2) of CERCLA, 42 U.S.C. § 96130(2), and is entitled, as of theEffective Date, to protection from contribution actions or claims as provided bySection 113(fl(2) of CERCLA, or as may be otherwise provided by law, for the "mattersaddressed" in this Consent Decree. The "matters addressed" in this Consent Decree are allresponse actions taken or to be taken and all response costs incurred or to be incurred, at or inconnection with the Site, by the United States or any other person; provided, however, that if theUnited States exercises rights under the reservations in Section XV (Covenants by Plaintiff ,other than in Paragraphs 69.a (claims for failure to meet a requirement of the Consent Decree),69.g (criminal liability), or 69.h (violations of federal/state law during or after implementation ofthe Work), the "matters addressed" in this Consent Decree will no longer include those responsecosts or response actions that are within the scope of the exercised reservation.

80. The Parties further agree, and by entering this Consent Decree this Court finds,that the complaint filed by the United States in this action is a civil action within the meaning ofSection 1130(1) of CERCLA, 42 U.S.C. § 96130(1), and that this Consent Decree constitutesajudicially-approved settlement pursuant to which each Settling Defendant has, as of theEffective Date, resolved liability to the United States within the meaning of Section 113(~(3)(B)of CERCLA, 42 U.S.C. § 9613(~(3)(B).

81. Each Settling Defendant shall, with respect to any suit or claim brought by it formatters related to this Consent Decree, notify the United States in writing no later than 60 daysprior to the initiation of such suit or claim.

82. Each Settling Defendant shall, with respect to any suit or claim brought against itfor matters related to this Consent Decree, notify in writing the United States within 10 daysafter service of the complaint on such Settling Defendant. In addition, each Settling Defendantshall notify the United States within 10 days after service or receipt of any Motion for SummaryJudgment and within 10 days after receipt of any order from a court setting a case for trial.

83. Res Judicata and Other Defenses. In any subsequent administrative or judicialproceeding initiated by the United States for injunctive relief, recovery of response costs, orother appropriate relief relating to the Site, Settling Defendants shall not assert, and may notmaintain, any defense or claim based upon the principles of waiver, res judicata, collateralestoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that theclaims raised by the United States in the subsequent proceeding were or should have beenbrought in the instant case; provided, however, that nothing in this Paragraph affects theenforceability of the covenants not to sue set forth in Section XV (Covenants by Plaintiff .

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XVIII. ACCESS TO INFORMATION

84. Settling Defendants shall provide to EPA, upon request, copies of all records,reports, documents, and other information (including records, reports, documents, and otherinformation in electronic form) (hereinafter referred to as "Records") within Settling Defendants'possession or control or that of their contractors or agents relating to activities at the Site or tothe implementation of this Consent Decree, including, but not limited to, sampling, analysis,chain of custody records, manifests, trucking logs, receipts, reports, sample traffic routing,correspondence, or other documents or information regarding the Work. Settling Defendantsshall also make available to EPA, for purposes of investigation, information gathering, ortestimony, their employees, agents, or representatives with knowledge of relevant factsconcerning the performance of the Work.

85. Privileged and Protected Claims.

a. Settling Defendants may assert that all or part of a Record requested byPlaintiff is privileged or protected as provided under federal law, in lieu of providing the Record,provided Settling Defendants comply with Paragraph 85.b, and except as provided inParagraph 85.c.

b. If Settling Defendants assert a claim of privilege or protection, they shallprovide Plaintiff with the following information regarding such Record: its title; its date; thename, title, affiliation (e.g., company or firm), and address of the author, of each addressee, andof each recipient; a description of the Record's contents; and the privilege or protection asserted.If a claim of privilege or protection applies only to a portion of a Record, Settling Defendantsshall provide the Record to Plaintiff in redacted form to mask the privileged or protected portiononly. Settling Defendants shall retain all Records that they claim to be privileged or protecteduntil Plaintiffs have had a reasonable opportunity to dispute the privilege or protection claim andany such dispute has been resolved in the Settling Defendants' favor.

c. Settling Defendants may make no claim of privilege or protectionregarding: (1) any data regarding the Site, including, but not limited to, all sampling, analytical,monitoring, hydrogeologic, scientific, chemical, radiological or engineering data, or the portionof any other Record that evidences conditions at or around the Site; or (2) the portion of anyRecord that Settling Defendants are required to create or generate pursuant to this ConsentDecree.

86. Business Confidential Claims. Settling Defendants may assert that all or part ofa Record provided to Plaintiffs under this Section or Section XIX (Retention of Records) isbusiness confidential to the extent permitted by and in accordance with Section 104(e)(7) ofCERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Settling Defendants shall segregateand clearly identify all Records or parts thereof submitted under this Consent Decree for whichSettling Defendants assert business confidentiality claims. Records submitted to EPA determinedto be confidential by EPA will be afforded the protection specified in 40 C.F.R. Part 2, SubpartB. If no claim of confidentiality accompanies Records when they are submitted to EPA, or ifEPA has notified Settling Defendants that the Records are not confidential under the standards ofSection 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access tosuch Records without further notice to Settling Defendants.

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87. If relevant to the proceeding, the Parties agree that validated sampling ormonitoring data generated in accordance with the SOW and reviewed and approved by EPAshall be admissible as evidence, without objection, in any proceeding under this Consent Decree.

88. Notwithstanding any provision of this Consent Decree, Plaintiff retains all of itsinformation gathering and inspection authorities and rights, including enforcement actionsrelated thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.

XIX. RETENTION OF RECORDS

89. Until 10 years after EPA's Certification of Work Completion under Paragraph 4.8(Certification of Work Completion) of the SOW, each Settling Defendant shall preserve andretain all non-identical copies of Records (including Records in electronic form) now in itspossession or control or that come into its possession or control that relate in any manner to itsliability under CERCLA with respect to the Site, provided, however, that Settling Defendantswho are potentially liable as owners or operators of the Site must retain, in addition, all Recordsthat relate to the liability of any other person under CERCLA with respect to the Site. EachSettling Defendant must also retain, and instruct its contractors and agents to preserve, for thesame period of time specified above all non-identical copies of the last draft or final version ofany Records (including Records in electronic form) now in its possession or control or that comeinto its possession or control that relate in any manner to the performance of the Work, provided,however, that each Settling Defendant (and its contractors and agents) must retain, in addition,copies of all data generated during the performance of the Work and not contained in theaforementioned Records required to be retained. Each of the above record retention requirementsshall apply regardless of any corporate retention policy to the contrary. Notwithstanding thisParagraph 89 above, at any time after the Effective Date, Settling Defendants may submit toEPA a request for approval to destroy the Records currently located in the building known as"Building 74" at the Site. EPA, in its sole, unreviewable discretion, may approve or deny thisrequest.

90. At the conclusion of this record retention period, Settling Defendants shall notifythe United States at least 90 days prior to the destruction of any such Records, and, upon requestby the United States, and except as provided in Paragraph 85 (Privileged and Protected Claims),Settling Defendants shall deliver any such Records to EPA.

91. Each Settling Defendant certifies individually that, to the best of its knowledgeand belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed, or otherwisedisposed of any Records (other than identical copies) relating to its potential liability regardingthe Site since notification of potential liability by the United States or the State and that it hasfully complied with any and all EPA and State requests for information regarding the Sitepursuant to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and9622(e)(3)(B), and Section 3007 of RCRA, 42 U.S.C. § 6927, and state law.

XX. NOTICES AND SUBMISSIONS

92. All approvals, consents, deliverables, modifications, notices, notifications,objections, proposals, reports, and requests specified in this Consent Decree must be in writingunless otherwise specified. Whenever, under this Consent Decree, notice is required to be given,or a report or other document is required to be sent, by one Party to another, it must be directed

37


to the persons) specified below at the addresses specified below. Any Party may change theperson and/or address applicable to it by providing notice of such change to all Parties. Allnotices under this Section are effective upon receipt, unless otherwise specified. Notices requiredto be sent to EPA, and not to the United States, should not be sent to the DOJ. Except asotherwise provided, notice to a Party by email (if that option is provided below) or by regularmail in accordance with this Section satisfies any notice requirement of the Consent Decreeregarding such Party.

As to the United States: EES Case Management UnitU.S. Department of JusticeEnvironment and Natural Resources DivisionP.O. Box 7611Washington, D.C. 20044-7611eescdcopy. enrd@usdoj . govRe: DJ # 90-5-2-1-11436

As to EPA: Director, Emergency and Remedial ResponseDivisionU.S. Environmental Protection Agency, Region 2290 Broadway, 19th FloorNew York City, NY 10007-1866

and: Alison HessEPA Project CoordinatorU.S. Environmental Protection Agency, Region 2290 Broadway, 19th FloorNew York City, NY [email protected](212) 637-3959

New Jersey Superfund BranchOffice of Regional CounselU.S. Environmental Protection Agency, Region 2290 Broadway, 17th FloorNew York City, NY 10007

Attention: Attorney for Curtis Specialty Papers Site

As to the Regional Financial Chief, Financial Management BranchManagement Officer: U.S. Environmental Protection Agency, Region 2

290 BroadwayNew York City, NY 10007kercado .Carlos @epa. gov

38


As to EPA Cincinnati FinanceCenter:

As to Settling Defendants:

EPA Cincinnati Finance Center26 W. Martin Luther King DriveCincinnati, Ohio 45268cinwd [email protected]

Brent Sasser, P.E.Corporate EH&S - Remediation Program Mgr.INTERNATIONAL PAPER COMPANY6400 Poplar AvenueMemphis, TN 38197

With copies to:

Paul A. MontneyDirector, Remediation ServicesGeorgia-Pacific Consumer Products LPEnvironmental Affairs297 Ferry StreetNewark, NJ 07105

and

David B. Farer, Esq.Chair, Environmental DepartmentGreenbaum, Rowe, Smith &Davis LLPMetro Corporate Campus OneWoodbridge, New Jersey 07095

XXI. RETENTION OF JURISDICTION

93. This Court retains jurisdiction over both the subject matter of this Consent Decreeand Settling Defendants for the duration of the performance of the terms and provisions of thisConsent Decree for the purpose of enabling any of the Parties to apply to the Court at any timefor such further order, direction, and relief as may be necessary or appropriate for theconstruction or modification of this Consent Decree, or to effectuate or enforce compliance withits terms, or to resolve disputes in accordance with Section XIII (Dispute Resolution).

XXII. APPENDICES

94. The following appendices axe attached to and incorporated into this ConsentDecree:

"Appendix A" is the ROD.

"Appendix B" is the SOW.

"Appendix C" is the description and/or map of the Site.

39


XXIII. MODIFICATION

95. Except as provided in Paragraph 13 (Modification of SOW or RelatedDeliverables), material modifications to this Consent Decree, including the SOW, shall be inwriting, signed by the United States and Settling Defendants, and shall be effective uponapproval by the Court. Except as provided in Paragraph 13, non-material modifications to thisConsent Decree, including the SOW, shall be in writing and shall be effective when signed byduly authorized representatives of the United States and Settling Defendants. A modification tothe SOW shall be considered material if it implements a ROD amendment that fundamentallyalters the basic features of the selected remedy within the meaning of 40 C.F.R.§ 300.435(c)(2)(ii). Before providing its approval to any modification to the SOW, the UnitedStates will provide the State with a reasonable opportunity to review and comment on theproposed modification.

96. Nothing in this Consent Decree shall be deemed to alter the Court's power toenforce, supervise, or approve modifications to this Consent Decree.

XXIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

97. This Consent Decree shall be lodged with the Court for at least 30 days for publicnotice and comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C. § 9622(d)(2),and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold its consent ifthe comments regarding the Consent Decree disclose facts or considerations that indicate that theConsent Decree is inappropriate, improper, or inadequate. Settling Defendants consent to theentry of this Consent Decree without further notice.

98. If for any reason the Court should decline to approve this Consent Decree in theform presented, this agreement is voidable at the sole discretion of any Party and the terms of theagreement may not be used as evidence in any litigation between the Parties.

XXV. SIGNATORIES/SERVICE

99. Each undersigned representative of a Settling Defendant to this Consent Decreeand the Assistant Attorney General for the Environment and Natural Resources Division of theDepartment of Justice certifies that he or she is fully authorized to enter into the terms andconditions of this Consent Decree and to execute and legally bind such Party to this document.

100. Each Settling Defendant agrees not to oppose entry of this Consent Decree by thisCourt or to challenge any provision of this Consent Decree unless the United States has notifiedSettling Defendants in writing that it no longer supports entry of the Consent Decree.

101. Each Settling Defendant shall identify, on the attached signature page, the name,address, and telephone number of an agent who is authorized to accept service of process by mailon behalf of that Party with respect to all matters arising under or relating to this Consent Decree.Settling Defendants agree to accept service in that manner and to waive the formal servicerequirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable localrules of this Court, including, but not limited to, service of a summons. Settling Defendants neednot file an answer to the complaint in this action unless or until the Court expressly declines toenter this Consent Decree.

,~


XXVI. FINAL JUDGMENT

102. This Consent Decree and its appendices constitute the final, complete, andexclusive agreement and understanding among the Parties regarding the settlement embodied inthe Consent Decree. The Parties acknowledge that there are no representations, agreements, orunderstandings relating to the settlement other than those expressly contained in this ConsentDecree.

103. Upon entry of this Consent Decree by the Court, this Consent Decree shallconstitute a final judgment between and among the United States and Settling Defendants. TheCourt enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

SO ORDERED THIS DAY OF , 20

United States District Judge

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Signature Page for Consent Decree regarding the Curtis Specialty Papers Superfund Site

FOR THE UNITED STATES OF AMERICA:

~2 ~z %~ ~Dated Bruce S. Gelber

Deputy Assistant Attorney GeneralU.S. Department of JusticeEnvironment and Natural Resources DivisionWashington, D.C. 20530

~Z dDate Davi igert

Senior CounselU.S. Department of JusticeEnvironment and Natural Resources DivisionEnvironmental Enforcement SectionP.O. Box 7611Washington, D.C. 20044-7611(202) 514-0133

Paul J FishmanUnited States AttorneyDistrict of New Jersey

.Allan UrgentAssistant United States AttorneyDistrict of New Jersey970 Broad Street, 7th FloorNewark, New Jersey 07102

:~



~~

Walter E. MugdanDirector, Emergency and Remedial Response DivisionU.S. Environmental Protection Agency, Region 2290 BroadwayNew York City, NY 10007

~'~_~' _ fir,

Gerard BurkeAssistant Regional CounselU.S. Environmental Protection Agency, Region 2290 BroadwayNew York City, NY 10007

43



FOR INTERNATIONAL PAPER CnMPANY:

~ ~..~ l l~Dated Name (print): ~,~ C..~c~4S

Title: ~ ̀~ , E ~~~n.o Nv,~.T 11r~+1~~4 = S~~ t"jAddress: (o~{on ~,p~~ a~~

"~►-~~5, -rr+~~l~I`~

Agent Autharired tc> Accept Serviceon Behalf cif Above-signed Party: Name (print):~~~ ~~ ~ . ~u~''Gr`, ~s~,

Title: ~c-ra'~s~sc-t.f c~~lk~n., ~ti.,~.~...,s.,.~.c.~ra~.Company: ~~~-~a^~,'~hJ~ 'e-~ 5,~,~ i D~~SAddress: ~q ~ao,a A,►~ So..c~4

,~+~'•s^cwt , (~ ~'Phone: O B" $ ~ nEmail: d~wr~rCa a~e~a.~b.s,~~~a~.+_~orh

Q r,P'~'

44


Si~natut~e Page for Consent Decree regarding the Cu~~tis Specialty Papers Supei~fiind Site

FOR GEORGIA~PA.CIFIC CONSUII~R PRODUCTSLP:

Dated Name tint}: F3,~-yam n~{ ̀ ~JJo +1Title:,si/P~",~~'r~~,,,,~~~~~~1 l~ff~c~r~ C~.~r~'(~r~.~:Q~~'~~~f-~.~F4

Address: /:3,3 j~s~cL~.lfr~~ f'f 1U~ A~(~..~~~ ~v4 303>>

Agent Authorized to Accept Servicean Behalf of Above-signedPai~ty: Name (print): ~l ~~ . ~~~R ~S

Title: P.~tE-1 C.l~f-} ~R.. ~nW ► f?~~~t+~1 ~n'~t• ~~ ~Company: C IZECN~,t+~1,~'~~ SM 1~- ~.~f~~~ ~`~Address: ~~~ V.1o0~ P~~IE-n,uC SeSvUT~-~

1 ~~L►v~~ ~ ~r.1~ D8~ ~t~Phone: ~-3~- G'~-~ 2~,.~-~Emait: •d~~rn r~ ra~'e_st.v~l~t,~,~m~c~.~.• ~..~vv~.>

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FOR MILFORD REDEVELOPMENT LLC:

,,.

Dated Name xint~r~ ~~k 7; G~ Lw-~,~~,Title: Pt'si~e~w , (N~ ~~(.' ~o~IQac~vz„s.~~~>,a~L~~.

Address: /33 %?~a~.~,~r~t' S~ ~~ ,1~~'~a.L~~ GHQ 3c3c%

Agent Authorized to Accept Sezviceon Behalf of Above-signed Party: Nama (print): ~~Av i~ ' ~ "~F--~ ~,

Title: DrTTO iZ~.~ ~~I C: ~-4 f~ ~ ~1~112or1 ~`r1 ~'T1"~"~, ~~P ~'Company: C~RC~~~MM CIE,,.. ~k ~~A`~►~Address: ~1 v~f o b A V ~nlU E x'1-4

1 j ~Ll 1~1 '1~~ i~'i~3n .Phone: ~ '~- ~.Email: ~ Go W~~

46
