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United States v. Smith Cove Preservation Trust

United States District Court, D. Maine

April 18, 2017

UNITED STATES OF AMERICA, and STATE OF MAINE, Plaintiffs,
v.
SMITH COVE PRESERVATION TRUST, Defendant.

          FOR PLAINTIFF STATE OF MAINE, JANET T. MILLS Attorney General, PETER B. LAFOND Assistant Attorney General Office of the Attorney General.

          FOR THE MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, PAUL MERCER Commissioner Maine Department of Environmental Protection.

          FOR DEFENDANT SMITH COVE PRESERVATION TRUST JAMES BENENSON, JR. Trustee for Smith Cove Preservation Trust, JOHN V. CURCI Joseph D. Lonardo, Attorney.

          CONSENT DECREE

          JON D. LEVY U.S. DISTRICT JUDGE.

         TABLE OF CONTENTS

         I. BACKGROUND ................................................................................................................ 3

         II. JURISDICTION ................................................................................................................. 6

         III. PARTIES BOUND ............................................................................................................. 6

         IV. DEFINITIONS .................................................................................................................... 7

         V. STATEMENT OF PURPOSE AND GENERAL PROVISIONS .................................... 11

         VI. PROVISION OF IN-KIND SERVICES ........................................................................... 11

         VII. ACCESS AND INSTITUTIONAL CONTROLS ............................................................ 11

         VIII. FAILURE TO COMPLY WITH CONSENT DECREE .................................................. 16

         IX. COVENANTS NOT TO SUE BY PLAINTIFFS ............................................................ 18

         X. RESERVATION OF RIGHTS BY PLAINTIFFS ........................................................... 19

         XI. COVENANT NOT TO SUE BY SETTLING DEFENDANT ......................................... 22

         XII. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION .................................. 23

         XIII. RETENTION OF RECORDS ........................................................................................... 25

         XIV. NOTICES AND SUBMISSIONS ..................................................................................... 27

         XV. COMMUNITY RELATIONS .......................................................................................... 28

         XVI. RETENTION OF JURISDICTION .................................................................................. 28

         XVII. INTEGRATION/APPENDICES ...................................................................................... 29

         XVIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .................................... 29

         XIX. SIGNATORIES/SERVICE ............................................................................................... 30

         XX. FINAL JUDGMENT ........................................................................................................ 31

         I. BACKGROUND

         A. The United States of America (“United States”), on behalf of the Administrator of the United States Environmental Protection Agency (“EPA”), together with the State of Maine (the “State”) and the Maine Department of Environmental Protection (“Maine DEP”), filed a joint complaint in this matter against Smith Cove Preservation Trust (“Settling Defendant”).

         B. The United States and the State in their joint complaint seek, inter alia, reimbursement of response costs incurred or to be incurred for response actions taken or to be taken at or in connection with the release or threatened release of hazardous substances at the Callahan Mine Superfund Site in Brooksville, Hancock County, Maine (“Site”), together with accrued interest, pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. § 9607.

         C. The United States in the joint complaint further seeks performance of response actions at the Site, consistent with the National Contingency Plan, 40 C.F.R. Part 300, as amended (“NCP”), pursuant to Section 106 of CERCLA, 42 U.S.C. § 9606.

         D. The State in the joint complaint further seeks a declaration of Settling Defendant's liability pursuant to the Maine Uncontrolled Hazardous Substance Sites Law, 38 M.R.S.A. §§ 1361-1371.

         E. By entering into this Consent Decree, Settling Defendant does not admit any liability to Plaintiffs arising out of the transactions or occurrences alleged in the joint complaint, nor does it acknowledge that the release or threatened release of hazardous substances at or from the Site constitutes an imminent and substantial endangerment to the public health or welfare or the environment.

         F. The United States and the State have reviewed the Financial Information and Insurance Information submitted by Settling Defendant to determine whether Settling Defendant is financially able to pay response costs incurred and to be incurred at the Site. Based upon this Financial Information and Insurance Information, the United States and the State have determined that Settling Defendant has limited financial ability to pay for response costs incurred and to be incurred at the Site.

         G. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Site on the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the Federal Register on September 5, 2002, 67 Fed. Reg. 56757.

         H. In response to a release or a substantial threat of a release of hazardous substances at or from the Site, EPA undertook response actions at the Site pursuant to Section 104 of CERCLA, 42 U.S.C. § 9604, and will undertake additional response actions in the future. EPA began a Remedial Investigation and Feasibility Study (“RI/FS”) for the Site in 2004 pursuant to 40 C.F.R. § 300.430. In 2005, EPA signed an Administrative Order by Consent to allow the State of Maine to complete the RI/FS (“RI/FS AOC, ” U.S. EPA Docket No. CERCLA-01-2005-0022).

         I. The Record of Decision for Operable Unit 1 (“OU1 ROD”) at the Site was issued by EPA on September 30, 2009. The OU1 ROD provides for inter alia capping of the tailings impoundment; off-site disposal of polychlorinated biphenyl (“PCB”)-contaminated soil; subaqueous disposal of source area material, residential use area soil and contaminated sediment in a confined aquatic disposal (“CAD”) cell; and implementation of institutional controls to prevent disturbance to the components of the remedy and long-term monitoring of compliance Callahan Mine Superfund Site Consent Decree Page 5 with the restrictions. After the OU1 ROD was issued, in 2010, EPA divided the work covered by the OU1 ROD into two separate operable units - OU1 and OU3. The cleanup actions relating to the residential area soil and the PCB-contaminated soil remained as part of OU1, while the remaining components of the OU1 ROD were designated to be performed as part of OU3. EPA issued an Explanation of Significant Differences on September 30, 2013 documenting the above-described changes to the OU1 ROD.

         J. In August 2010, EPA entered into a Settlement Agreement with the Maine Department of Transportation (“Maine DOT”) for the implementation of the remedial design of OU1 and OU3. The OU1 remedial design was completed in September 2010, the tailings impoundment component of the OU3 remedial design was completed in August 2015, while the sediment, waste rock, and CAD cell components of the OU3 remedial design are ongoing.

         K. Also in August 2010, EPA and Maine DEP entered into a State Superfund Contract for the OU1 ROD selected remedy, including both OU1 and OU3. In September 2010, EPA entered into a Cooperative Agreement to allow Maine DEP to become the lead for the implementation of OU1. The OU1 remedial action began in September 2010, and the cleanup of the residential use area was completed in 2010, while the cleanup of the PCB contaminated soil was completed in 2013.

         L. At the time of the OU1 ROD in 2009, EPA determined that additional investigation would be necessary to finalize a cleanup plan for the groundwater and the waste/soil located outside of the OU1 ROD defined source areas and created Operable Unit 2 (“OU2”). The OU2 RI/FS will continue until sufficient data are collected to develop a cleanup plan for those areas, and is being performed by the State of Maine in accordance with the RI/FS AOC. However, an Callahan Mine Superfund Site Consent Decree Page 6 Early Action Memorandum for OU2 was issued on September 30, 2009 and provides for the implementation of land use restrictions at the Site to prevent the installation of water supply wells and to prevent residential development.

         M. The United States, the State, and Settling Defendant agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter will expedite cleanup of the Site and will avoid prolonged and complicated litigation among the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.

         THEREFORE, with the consent of the Parties to this Decree, it is ORDERED, ADJUDGED, AND DECREED.

         II. JURISDICTION

         1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1345, and 1367, and 42 U.S.C. §§ 9606, 9607 and 9613(b) and also has personal jurisdiction over Settling Defendant and pendent subject matter jurisdiction over the claims arising under the laws of the State. Solely for the purposes of this Consent Decree and the underlying complaint, Settling Defendant waives all objections and defenses that it may have to jurisdiction of the Court or to venue in this District. Settling Defendant consents to and shall not challenge entry or the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.

         III. PARTIES BOUND

         2. This Consent Decree is binding upon the United States, upon the State, and upon Settling Defendant and its heirs, successors and assigns. Any change in ownership or corporate Callahan Mine Superfund Site Consent Decree Page 7 or other legal status, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter the status or responsibilities of Settling Defendant under this Consent Decree, except to the extent provided by Paragraph 11.

         IV. DEFINITIONS

         3. Unless otherwise expressly provided herein, terms used in this Consent Decree which are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Consent Decree or in any appendix attached hereto, the following definitions shall apply:

a. “Borrow Material” shall mean earthen material, such as rock and/or soil encompassing overburden material such as topsoil, sand, silt, clay, gravel, cobbles, and boulders, that is obtained from a location for the sole purpose of providing materials to perform any of the response actions at the Site and that meets the specifications included in EPA or Maine DEP approved design and planning documents, construction specifications and work plans for any such response actions. Borrow Material does not include “Spoils” as defined herein.
b. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq.
c. “Consent Decree” shall mean this Consent Decree and any appendix attached hereto. In the event of conflict between this Consent Decree and any appendix, this Consent Decree shall control.
d. “Day” shall mean a calendar day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or state or federal holiday, Callahan Mine Superfund Site Consent Decree Page 8 the period shall run until the close of business (5:00 P.M.) of the next working day.
e. “DOJ” shall mean the United States Department of Justice and any successor departments, agencies or instrumentalities of the United States.
f. “Effective Date” shall be the date upon which this Consent Decree is entered by the Court as recorded on the Court docket, or, if the Court instead issues an order approving the Consent Decree, the date such order is recorded on the Court docket.
g. “EPA” shall mean the United States Environmental Protection Agency and any successor departments, agencies or instrumentalities of the United States.
h. “EPA Hazardous Substance Superfund” shall mean the Hazardous Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
i. “Financial Information and Insurance Information” shall mean those financial documents ...

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