CONSENT DECREE

ANDRE BIROTTE, Jr., District Judge.

I. BACKGROUND

A. The United States of America ("United States"), on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), and the State of California Department of Toxic Substances Control ("DTSC") (collectively "Plaintiffs") filed a complaint in this matter pursuant to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607 ("Complaint").

B. The Plaintiffs' Complaint seeks, inter alia: (1) reimbursement of costs incurred by EPA and the Department of Justice ("DOJ") and by DTSC for response actions at the Cooper Drum Company Superfund Site ("Site") in South Gate, Los Angeles County, California, together with accrued interest; and (2) performance of response actions by 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(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F), EPA notified the DTSC in July 2010 of negotiations with potentially responsible parties regarding the implementation of the remedial design and remedial action for the Site, and EPA has provided DTSC with an opportunity to participate in such negotiations and to be a party to the Complaint and to this Consent Decree.

D. DTSC thereafter joined the United States' Complaint alleging that the defendants are liable to the State of California Department of Toxic Substances Control under Section 107 of CERCLA, 42 U.S.C. §9607, and Health and Safety Code Sections 25358.3 and 25360.

E. The defendants who have entered into this Consent Decree ("Settling Defendants") do not admit any liability to Plaintiffs arising out of the transactions or occurrences alleged in the Complaint, nor do they acknowledge that the release or threatened release of hazardous substances at or from the Site constitutes an imminent and substantial endangerment to public health or welfare or the environment.

F. 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 in June 2001, 49 Fed. Reg. 40,320.

G. In response to a release or substantial threat of a release of hazardous substances at or from the Site, EPA undertook a Remedial Investigation and Feasibility Study ("RI/FS") for the Site from 1996 to 2001 pursuant to 40 C.F.R. § 300.430.

H. EPA completed a Remedial Investigation and Feasibility Study Report on May 15, 2002.

I. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice of the completion of the RI/FS and of the proposed plan for remedial action in June 2002, in a major local newspaper of general circulation. EPA provided an opportunity for written and oral comments from the public on the proposed plan for remedial action. A copy of the transcript of the public meeting is available to the public as part of the administrative record upon which the Regional Administrator, EPA Region IX, based the selection of the response action.

J. The decision by EPA on the remedial action to be implemented at the Site is embodied in a final Record of Decision ("ROD"), executed on September 27, 2002, on which DTSC had a reasonable opportunity to review and comment. Both the Remedial Investigation Feasibility Study (URS, May 2002) and the ROD acknowledge that groundwater at the Site has been impacted by upgradient off-site releases of chemicals of concern ("COCs") that are unrelated to the Site or historical Site activities. Additionally, EPA added two adjacent sites to the National Priorities List. The ROD includes a responsiveness summary to the public comments. Notice of the final plan was published in accordance with Section 117(b) of CERCLA, 42 U.S.C. § 9617(b). The ROD is attached as Appendix A.

K. On September 21, 2007, EPA completed two Remedial Design Reports containing the Remedial Designs for the Remedial Action for soils and groundwater at the Site.

L. On February 11, 2009, EPA issued Unilateral Administrative Order 2009-07 (the "Order") to 43 recipients requiring the recipients to conduct the Remedial Action at the Site pursuant to the ROD and the Remedial Designs. In compliance with the Order, certain of the recipients formed the Cooper Drum Cooperating Parties Group (the "Group") and, since 2009, the Group has been performing work pursuant to the Order.

M. Based on the information presently available to EPA, EPA believes that the Work will be properly and promptly conducted by Performing Settling Defendants if conducted in accordance with the requirements of this Consent Decree and its appendices.

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

O. The United States has reviewed the financial information submitted by the Ability-to-Pay Settling Defendants to determine whether the Ability-to-Pay Settling Defendants are financially able to pay response costs incurred and to be incurred at the Site. Based upon this financial information, the United States has determined that the Ability-to-Pay Settling Defendants are able to pay the amounts required under this Consent Decree.

P. The United States has reviewed available evidence relating to the volumes and toxicity of wastes at the Site attributable to the known potentially responsible parties and has determined that the De Minimis Settling Defendants meet the criteria of Section 122(g)(1)(A) of CERCLA, 42 U.S.C. § 9622(g)(1)(A).

Q. The Parties recognize, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and implementation of this Consent Decree will expedite the 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. NOW, THEREFORE, it is hereby 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 and 1345 and 42 U.S.C. §§ 9607 and 9613(b) and also has personal jurisdiction over Settling Defendants. Solely for the purposes of this Consent Decree and the underlying Complaint, Settling Defendants waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District. Settling Defendants shall not challenge 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 applies to and is binding upon the United States and DTSC and upon Settling Defendants and their heirs, successors and assigns. Any change in ownership or corporate status of a Settling Defendant, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter such Settling Defendant's responsibilities under this Consent Decree.

3. Performing Settling Defendants shall provide a copy of this Consent Decree to each contractor hired to perform the Work required by this Consent Decree and to each person representing Performing Settling Defendants with respect to the Site or the Work, and shall condition all contracts entered into hereunder upon performance of the Work in conformity with the terms of this Consent Decree. Performing Settling Defendants or their contractors shall provide written notice of the Consent Decree to all subcontractors hired to perform any portion of the Work required by this Consent Decree. Performing Settling Defendants shall nonetheless be responsible for ensuring that their contractors and subcontractors perform the Work in accordance with the terms of this Consent Decree. With regard to the activities undertaken pursuant to this Consent Decree, each contractor and subcontractor shall be deemed to be in a contractual relationship with Performing Settling Defendants within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).

IV. DEFINITIONS

4. Unless otherwise expressly provided herein, terms used in this Consent Decree that 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 its appendices, the following definitions shall apply solely for purposes of this Consent Decree:

V. GENERAL PROVISIONS

5. Objectives of the Parties. The objectives of the Parties in entering into this Consent Decree are to protect public health and welfare and the environment by the design and implementation of response actions at the Site by Performing Settling Defendants, to pay response costs of Plaintiffs, and to resolve the claims of Plaintiffs stated in the Complaint against Settling Defendants.

6. Commitments by Settling Defendants.

7. Compliance With Applicable Law. All activities undertaken by Performing Settling Defendants pursuant to this Consent Decree shall be performed in accordance with the requirements of all applicable federal and state laws and regulations. Performing Settling Defendants must also comply with all applicable or relevant and appropriate requirements of all federal and state environmental laws as set forth in the ROD and the SOW. The activities conducted pursuant to this Consent Decree, if approved by EPA or otherwise approved under the Decree provisions, shall be deemed to be consistent with the NCP.

8. Permits.

VI. PERFORMANCE OF THE WORK BY PERFORMING SETTLING DEFENDANTS

9. Selection of Supervising Contractor.

10. Remedial Design.

11. Remedial Action.

c. Each Work Plan shall include:

Each Remedial Action Work Plan shall provide a description of additional data collection efforts, if any, required for completion of the Remedial Design for the Remedial Action, and shall consider whether any data are needed to verify that critical design assumptions remain valid. If additional data are required, the Remedial Action Work Plan shall propose a schedule for preparation and implementation of a Sampling and Analysis Plan or Addendum.

12. Performing Settling Defendants shall continue to implement the Remedial Action until the Performance Standards are achieved. Performing Settling Defendants shall implement O&M for so long thereafter as is required under this Consent Decree.

13. Modification of the SOW or Related Work Plans.

14. Nothing in this Consent Decree, the SOW, or the Remedial Design or Remedial Action Work Plans constitutes a warranty or representation of any kind by Plaintiffs that compliance with the work requirements set forth in the SOW and the Work Plans will achieve the Performance Standards.

15. Off-Site Shipment of Waste Material

VII. REMEDY REVIEW

16. Periodic Review. Performing Settling Defendants shall conduct any studies and investigations that EPA requests in order to permit EPA to conduct reviews of whether the Remedial Action is protective of human health and the environment at least every five years as required by Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and any applicable regulations.

17. EPA Selection of Further Response Actions. If EPA determines, after reasonable opportunity for review and comment by DTSC, that the Remedial Action is not protective of human health and the environment, EPA may select further response actions for the Site, including, without limitation, response actions for the Phase 2 OU1 Remedial Action selected by EPA after either the MNA evaluation or the FFS pursuant to Paragraph 11 of this Consent Decree, in accordance with the requirements of CERCLA and the NCP, including any State of California notice and participation requirements contained therein.

18. Opportunity To Comment. Performing Settling Defendants and, if required by Sections 113(k)(2) or 117 of CERCLA, 42 U.S.C § 9613(k)(2) or 9617, the public, will be provided with an opportunity to comment on any further response actions proposed by EPA as a result of the review conducted pursuant to Section 121(c) of CERCLA and to submit written comments for the record during the comment period.

19. Performing Settling Defendants' Obligation To Perform Further Response Actions. If EPA selects further response actions at the Site, EPA may require Performing Settling Defendants to perform such further response actions, but only to the extent that the reopener conditions in Paragraph 86 or Paragraph 87 (United States' Pre- and Post-Certification Reservations) are satisfied. Performing Settling Defendants may invoke the procedures set forth in Section XIX (Dispute Resolution) to dispute (a) EPA's determination that the reopener conditions of Paragraphs 86 or 87 are satisfied, (2) EPA's determination that the Remedial Action is not protective of human health and the environment, or (3) EPA's selection of the further response actions. Disputes pertaining to whether the Remedial Action is protective or to EPA's selection of further response actions shall be resolved pursuant to Paragraph 69 (Record Review).

20. Submissions of Plans. If Performing Settling Defendants are required to perform further response actions pursuant to Paragraph 19, they shall submit a plan for such response action to EPA for approval in accordance with the procedures of Section VI (Performance of Work by Performing Settling Defendants). Performing Settling Defendants shall implement the approved plan in accordance with the provisions of this Consent Decree.

VIII. QUALITY ASSURANCE, SAMPLING AND DATA ANALYSIS

21. Quality Assurance.

22. Upon request, Performing Settling Defendants shall allow split or duplicate samples to be taken by EPA or DTSC or their authorized representatives. Performing Settling Defendants shall notify EPA not less than 28 days in advance of any sample collection activity unless shorter notice is agreed to by EPA. In addition, EPA or DTSC shall have the right to take any additional samples that EPA deems necessary. EPA or DTSC shall notify Performing Settling Parties not less than 14 days in advance of its plan to take such additional samples. Upon request, EPA or DTSC shall allow Performing Settling Defendants to take split or duplicate samples of any samples it takes as part of EPA's oversight of Performing Settling Defendants' implementation of the Work.

23. Performing Settling Defendants shall submit to EPA and DTSC two copies of the results of all sampling and/or tests or other data obtained or generated by or on behalf of Performing Settling Defendants with respect to the Site and/or the implementation of this Consent Decree unless EPA or DTSC agrees otherwise. Copies may be delivered to EPA or DTSC by electronic means including email.

24. Notwithstanding any provision of this Consent Decree, the United States retains all of its information gathering and inspection authorities and rights, including enforcement actions related thereto, under CERCLA, RCRA and any other applicable statutes or regulations.

IX. ACCESS AND INSTITUTIONAL CONTROLS

25. If the Site, or any other real property where access and/or land/water use restrictions are needed, is owned or controlled by any of the Settling Defendants:

26. If the Site, or any other property where access and/or land/water use restrictions are needed to implement this Consent Decree, is owned or controlled by persons other than any Settling Defendant, Performing Settling Defendants shall use best efforts to secure from such persons:

27. For purposes of Paragraph 26 of this Consent Decree, "best efforts" includes the payment of reasonable sums of money in consideration of access, access easements, land/water use restrictions, restrictive easements, and/or an agreement to release or subordinate a prior lien or encumbrance. If within 30 days of the Effective Date, Performing Settling Defendants have not obtained any access or land/water use restriction agreements required by Paragraphs 25 and 26 of this Consent Decree, Performing Settling Defendants shall promptly notify the United States in writing, and shall include in that notification a summary of the steps that the Performing Settling Defendants have taken to attempt to comply with Paragraph 25 or 26 of this Consent Decree. The United States may, as it deems appropriate, assist Performing Settling Defendants in obtaining access or land/water use restrictions, or in obtaining the release or subordination of a prior lien or encumbrance. Performing Settling Defendants will reimburse the United States under Section XVI (Payments for Response Costs), for all costs incurred, direct or indirect, by the United States in obtaining such access, agreements to restrict land/water use, and/or the release/subordination of prior liens or encumbrances including, but not limited to, the cost of attorney time and the amount of monetary consideration or just compensation paid by the United States to any landowner. The foregoing commitments in Paragraphs 26 and 27 do not apply to any property owned by Cooper Living Trust or Cooper Properties, LP or their successors.

28. If EPA, after reasonable opportunity for review and comment by DTSC, determines that Institutional Controls in the form of state or local laws, regulations, ordinances, zoning restrictions, or other governmental controls are needed at or in connection with the Site, Performing Settling Defendants will cooperate with EPA's efforts to secure and ensure compliance with such Institutional Controls.

29. Notwithstanding any provision of this Consent Decree, the United States and DTSC retain all of their access authorities and rights, as well as all of its rights to require Institutional Controls, including enforcement authorities related thereto, under CERCLA, RCRA and any other applicable statute or regulations.

X. REPORTING REQUIREMENTS

30. In addition to any other requirement of this Consent Decree, Performing Settling Defendants shall submit to EPA and DTSC two copies of written monthly progress reports that: (a) describe the actions which have been taken toward achieving compliance with this Consent Decree during the previous month; (b) include a summary of all results of sampling and tests and all other data received or generated by Performing Settling Defendants or their contractors or agents in the previous month; (c) identify all plans, reports, and other deliverables required by this Consent Decree completed and submitted during the previous month; (d) describe all actions, including, but not limited to, data collection and implementation of work plans, that are scheduled for the next six weeks and provide other information relating to the progress of construction, including, but not limited to, critical path diagrams, Gantt charts and Pert charts; (e) include information regarding percentage of completion, unresolved delays encountered or anticipated that may affect the future schedule for implementation of the Work, and a description of efforts made to mitigate those delays or anticipated delays; (f) include any modifications to the work plans or other schedules that Performing Settling Defendants have proposed to EPA or that have been approved by EPA; and (g) describe all activities undertaken in support of the Community Involvement Plan during the previous month and those to be undertaken in the next six weeks. These reports may be submitted by electronic means including email. Performing Settling Defendants shall submit these progress reports to EPA and DTSC by the tenth day of every month following the lodging of this Consent Decree until EPA notifies Performing Settling Defendants the reports are no longer required pursuant to Section XIV (Certificate of Completion) or until EPA, DTSC, and Performing Settling Defendants agree to a modified schedule. If requested by EPA or DTSC, Performing Settling Defendants shall also provide briefings for EPA and DTSC to discuss the progress of the Work.

31. Performing Settling Defendants shall notify EPA and DTSC of any change in the schedule described in the monthly progress report for the performance of any activity, including, but not limited to, data collection and implementation of work plans, no later than seven days prior to the performance of the activity or as otherwise agreed by the Parties.

32. Upon the occurrence of any event during performance of the Work that Performing Settling Defendants are required to report pursuant to Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11004, Performing Settling Defendants shall within 24 hours of the onset of such event orally notify the EPA Project Coordinator or the Alternate EPA Project Coordinator (in the event of the unavailability of the EPA Project Coordinator), or, in the event that neither the EPA Project Coordinator or Alternate EPA Project Coordinator is available, the Emergency Response Section, Region IX, United States Environmental Protection Agency. These reporting requirements are in addition to the reporting required by CERCLA Section 103 or EPCRA Section 304. Immediately following notice to EPA as required by this Paragraph, Performing Settling Defendants shall orally notify the DTSC Project Coordinator.

33. Within 20 days of the onset of such an event, Performing Settling Defendants shall furnish to EPA a written report, signed by an authorized representative of the Performing Settling Defendants, setting forth the events that occurred and the measures taken, and to be taken, in response thereto. Within 30 days after the conclusion of such an event, Performing Settling Defendants shall submit a report setting forth all actions taken in response thereto.

34. Performing Settling Defendants shall submit two copies of all plans, reports, data, and other deliverables required by the SOW, the Remedial Action Work Plan, or any other approved plans to EPA in accordance with the schedules set forth in such plans. Performing Settling Defendants shall simultaneously submit two copies of all such plans, reports and data to the DTSC. Upon request by EPA or DTSC, and to the extent feasible, Performing Settling Defendants shall submit in electronic form all or any portion of any deliverables Performing Settling Defendants are required to submit pursuant to the provisions of this Consent Decree.

35. All deliverables submitted by Performing Settling Defendants to EPA or DTSC that purport to document Performing Settling Defendants' compliance with the terms of this Consent Decree shall be signed by an authorized representative of Performing Settling Defendants.

XI. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS

36. Initial Submission.

37. Resubmissions. Upon receipt of a notice of disapproval under Paragraph 36(3) or (4) or if required by a notice of approval upon specified conditions under Paragraph 36(2), after reasonable opportunity for review and comment by DTSC, Performing Settling Defendants shall, within 30 days or such longer time as specified by EPA in such notice, correct the deficiencies and resubmit the plan, report, or other deliverable for approval. After review of the resubmitted plan, report, or other deliverable, EPA may: (a) approve, in whole or in part, the resubmission; (b) approve the resubmission upon specified conditions; (c) modify the resubmission; (d) disapprove, in whole or in part, the resubmission, requiring Performing Settling Defendants to correct the deficiencies; or (e) any combination of the foregoing

38. Material Defects. If an initially submitted or resubmitted plan, report, or other deliverable contains a material defect, and the plan, report, or other deliverable is disapproved or modified by EPA under Paragraph 36(3) or 37(c) due to such material defect, then EPA shall provide notice of same to Performing Settling Defendants and provide a reasonable period within which to cure such defect. If the defect is not timely cured, the material defect shall constitute a lack of compliance for purposes of Paragraph 72. The provisions of Section XIX (Dispute Resolution) and Section XX (Stipulated Penalties) shall govern the accrual and payment of any stipulated penalties regarding Performing Settling Defendants' submissions under this Section.

39. Implementation. Upon approval or approval upon conditions of any plan, report, or other deliverable, or any portion thereof: (a) such plan, report, or other deliverable, or portion thereof, shall be incorporated into and enforceable under this Consent Decree; and (b) Performing Settling Defendants shall take any action required by such plan, report, or other deliverable, or portion thereof, subject only to their right to invoke the Dispute Resolution procedures set forth in Section XIX (Dispute Resolution) with respect to the modifications or conditions made by EPA. The implementation of any non-deficient portion of a plan, report, or other deliverable submitted or resubmitted under Paragraph 36 or 37 shall not relieve Performing Settling Defendants of any liability for stipulated penalties under Section XXI (Stipulated Penalties).

XII. PROJECT COORDINATORS

40. Within 20 days after lodging this Consent Decree, Performing Settling Defendants and EPA will notify each other, in writing, of the name, address, telephone number, and email address of their respective designated Project Coordinators and Alternate Project Coordinators. If a Project Coordinator or Alternate Project Coordinator initially designated is changed, the identity of the successor will be given to the other Parties at least five working days before the change occurs, unless impracticable, but in no event later than the actual day the change is made. Performing Settling Defendants' Project Coordinator shall be subject to disapproval by EPA, after reasonable opportunity for review and comment by DTSC, and shall have the technical expertise sufficient to adequately oversee all aspects of the Work. Performing Settling Defendants' Project Coordinator shall not be an attorney for any Settling Defendant in this matter. He or she may assign other representatives, including other contractors, to serve as a Site representative for oversight of performance of daily operations during remedial activities.

41. Plaintiffs may designate other representatives, including, but not limited to, EPA and DTSC employees, and federal contractors and consultants, to observe and monitor the progress of any activity undertaken pursuant to this Consent Decree. EPA's Project Coordinator and Alternate Project Coordinator shall have the authority lawfully vested in a Remedial Project Manager ("RPM") and an On-Scene Coordinator ("OSC") by the NCP, 40 C.F.R. Part 300. EPA's Project Coordinator or Alternate Project Coordinator shall have authority, consistent with the NCP, to halt any Work required by this Consent Decree and to take any necessary response action when he or she determines that conditions at the Site constitute an emergency situation or may present an immediate threat to public health or welfare or the environment due to release or threatened release of Waste Material.

42. EPA's Project Coordinator and Performing Settling Defendants' Project Coordinator will meet on an "as needed" basis. DTSC's Project Coordinator shall be allowed to participate in such meetings at DTSC's discretion.

XIII. PERFORMANCE GUARANTEE

43. In order to ensure the full and final completion of the Work, Performing Settling Defendants shall establish and maintain a performance guarantee, initially in the amount of $15,000,000.00, for the benefit of EPA (hereinafter "Estimated Cost of the Work"). The performance guarantee, which must be satisfactory in form and substance to EPA, shall be in the form of one or more of the following mechanisms (provided that, if Performing Settling Defendants intend to use multiple mechanisms, such multiple mechanisms shall be limited to surety bonds guaranteeing payment, letters of credit, trust funds, and insurance policies):

44. Performing Settling Defendants have selected, and EPA has found satisfactory, as an initial performance guarantee, pursuant to Paragraph 43(a)(b) and (d), a combination of surety bonds, letters of credit and policies of insurance in the forms attached hereto as Appendix J. Within ten days after the Effective Date, Performing Settling Defendants shall execute or otherwise finalize all instruments or other documents required in order to make the selected performance guarantee(s) legally binding in a form substantially identical to the documents attached hereto as Appendix J, and such performance guarantee shall thereupon be fully effective. Within 30 days after the Effective Date, Performing Settling Defendants shall submit copies of all executed and/or otherwise finalized instruments or other documents required in order to make the selected performance guarantee(s) legally binding to the EPA Regional Financial Management Officer in accordance with Section XXVI (Notices and Submissions) with a copy to the United States.

45. If, at any time after the Effective Date and before the issuance of the Certificate of Completion of the Work pursuant to Section XIV, Performing Settling Defendants provide a performance guarantee for completion of the Work by means of a demonstration or guarantee pursuant to Paragraph 43(e) or 43(f), performing Settling Defendants shall also comply with the other relevant requirements of 40 C.F.R. § 264.143(f) relating to these mechanisms unless otherwise provided in this Consent Decree, including but not limited to: (a) the initial submission of required financial reports and statements from the relevant entity's chief financial officer ("CFO") and independent certified public accountant ("CPA"), in the form prescribed by EPA in its test sample CFO letters and CPA reports available at: http://www.epa.gov/compliance/resources/policies/cleanup/superfund/fa-test-samples.pdf; (b) the annual resubmission of such reports and statements within 90 days after the close of each such entity's fiscal year; and (c) the prompt notification of EPA after each such entity determines that it no longer satisfies the financial test requirements set forth at 40 C.F.R. § 264.143(f)(1) and in any event within 90 days after the close of any fiscal year in which such entity no longer satisfies such financial test requirements. For purposes of the performance guarantee mechanisms specified in this Section XIII only, references in 40 C.F.R. Part 264, Subpart H, to "closure", "post-closure", and "plugging and abandonment" shall be deemed to include the Work; the terms "current closure cost estimate," "current post-closure cost estimate," and "current plugging and abandonment cost estimate" shall be deemed to include the Estimated Cost of the Work; the terms "owner" and "operator" shall be deemed to refer to each Performing Settling Defendant making a demonstration under Paragraph 43; and the terms "facility" and "hazardous waste facility" shall be deemed to include the Site.

46. In the event that EPA determines at any time that a performance guarantee provided by a Performing Settling Defendant is inadequate or otherwise no longer satisfies the requirements set forth in this Section, whether due to an increase in the estimated cost of implementing the Work, or for any other reason, or in the event that any Performing Settling Defendant becomes aware of information indicating that a performance guarantee provided pursuant to this Section is inadequate or otherwise no longer satisfies the requirements set forth in this Section, whether due to an increase in the estimated cost of completing the Work or for any other reason, Performing Settling Defendants, within 30 days after receipt of notice of EPA's determination or, as the case may be, within 30 days after any Performing Settling Defendant becoming aware of such information, shall obtain and present to EPA for approval a proposal for a revised or alternative form of performance guarantee listed in Paragraph 43 that satisfies all requirements set forth in this Section XIII; provided, however, that if any Performing Settling Defendant cannot obtain such revised or alternative form of performance guarantee within such 30-day period, and provided further that a Performing Settling Defendant shall have commenced to obtain such revised or alternative form of performance guarantee within such 30-day period, and thereafter diligently proceeds to obtain the same, EPA shall extend such period for such time as is reasonably necessary for the Performing Settling Defendant in the exercise of due diligence to obtain such revised or alternative form of performance guarantee, such additional period not to exceed 30 days. In seeking approval for a revised or alternative form of performance guarantee, Performing Settling Defendants shall follow the procedures set forth in Paragraph 48. Performing Settling Defendants' inability to post a performance guarantee for completion of the Work shall in no way excuse performance of any other requirements of this Consent Decree, including, without limitation, the obligation of Performing Settling Defendants to complete the Work in strict accordance with the terms of this Consent Decree.

47. Funding for Work Takeover. The commencement of any Work Takeover pursuant to Paragraph 90 shall trigger EPA's right to receive the benefit of any performance guarantee(s) provided pursuant to Paragraphs 43.a, 43.b, 43.c, 43.d or 43.f, and at such time EPA shall have immediate access to resources guaranteed under any such performance guarantee(s), whether in cash or in kind, as needed to continue and complete the Work assumed by EPA under the Work Takeover. Upon the commencement of any Work Takeover, if (a) for any reason EPA is unable to promptly secure the resources guaranteed under any such performance guarantee(s), whether in cash or in kind, necessary to continue and complete the Work assumed by EPA under the Work Takeover, or (b) in the event that the performance guarantee involves a demonstration of satisfaction of the financial test criteria pursuant to Paragraph 43.e or Paragraph 43.f(2), Performing Settling Defendants (or, in the case of Paragraph 43.f(2), the guarantor) shall, upon written demand from EPA, deposit into a special account within the EPA Hazardous Substance Superfund, in immediately available funds and without setoff, counterclaim, or condition of any kind, a cash amount up to but not exceeding the estimated cost of completing the Work as of such date, as determined by EPA. In addition, if at any time EPA and/or the Performing Settling Defendants is/are notified by the issuer of a performance guarantee that such issuer intends to cancel the performance guarantee mechanism it has issued, then, unless Performing Settling Defendants provide a substitute performance guarantee mechanism in accordance with this Section XIII no later than 30 days prior to the impending cancellation date, EPA shall be entitled (as of and after the date that is 30 days prior to the impending cancellation) to draw fully on the funds guaranteed under the then-existing performance guarantee. All EPA Work Takeover Costs not reimbursed under this Paragraph shall be reimbursed under Section XVI (Payments for Response Costs).

48. Modification of Amount and/or Form of Performance Guarantee

XIV. CERTIFICATE OF COMPLETION

49. Completion of the Remedial Action.

50. Completion of the Work.

XV. EMERGENCY RESPONSE

51. If any action or occurrence during the performance of the Work causes or threatens a release of Waste Material from the Site that constitutes an emergency situation or may present an immediate threat to public health or welfare or the environment, Performing Settling Defendants shall, subject to Paragraph 52, immediately take all appropriate action to prevent, abate, or minimize such release or threat of release, and shall immediately notify the EPA's Project Coordinator, or, if the Project Coordinator is unavailable, EPA's Alternate Project Coordinator. If neither of these persons is available, the Performing Settling Defendant shall notify the EPA Emergency Response Unit, Region IX. Performing Settling Defendants shall take such actions in consultation with EPA's Project Coordinator or other available authorized EPA officer and in accordance with all applicable provisions of the Health and Safety Plans, the Contingency Plans, and any other applicable plans or documents developed pursuant to the SOW. In the event that Performing Settling Defendants fail to take appropriate response actions as required by this Section and EPA, or as appropriate, DTSC, takes such action instead, Performing Settling Defendants shall reimburse EPA and DTSC for all costs of the response action not inconsistent with the NCP under Section XVI (Payments for Response Costs).

52. Subject to Section XXI (Covenants by Plaintiffs), nothing in the preceding Paragraph or in this Consent Decree shall be deemed to limit any authority of the United States or DTSC (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 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.

XVI. PAYMENTS FOR RESPONSE COSTS

53. Payment by Settling Defendants for Past Response Costs

54. Payments by Performing Settling Defendants for Interim Response Costs and Future Response Costs. Performing Settling Defendants shall pay to EPA and DTSC all Interim Response Costs and all Future Response Costs not inconsistent with the NCP incurred at the Site.

55. Payment Instructions for Settling Defendants.

Field Tag 4200 of the Fedwire message should read as follows:

56. a. Performing Settling Defendants may contest any Future Response Costs billed under Paragraph 54 ("Payments by Performing Settling Defendants for Future Response Costs") if they determine that EPA has made a mathematical error or included a cost item that is not within the definition of Future Response Costs, or if they believe that EPA incurred excess costs as a direct result of an EPA action that was inconsistent with a specific provision or provisions of the NCP. Such objection shall be made in writing within 30 days after receipt of the bill and must be sent to the United States pursuant to Section XXVI (Notices and Submissions). Any such objection shall specifically identify the contested Future Response Costs and the basis for objection. In the event of an objection, Performing Settling Defendants shall pay all uncontested Future Response Costs to the United States within 60 days after Performing Settling Defendants' receipt of the bill requiring payment. Simultaneously, Performing Settling Defendants shall establish, in a duly chartered bank or trust company, an interest-bearing escrow account that is insured by the Federal Deposit Insurance Corporation ("FDIC") and remit to that escrow account funds equivalent to the amount of the contested Future Response Costs. Performing Settling Defendants shall send to the United States, as provided in Section XXVI (Notices and Submissions), a copy of the transmittal letter and check paying the uncontested Future Response Costs, and a copy of the correspondence that establishes and funds the escrow account, including, but not limited to, information containing the identity of the bank or trust company and account under which the escrow account is established as well as a statement showing the initial balance of the escrow account. Simultaneously with establishment of the escrow account, Performing Settling Defendants shall initiate the Dispute Resolution procedures in Section XIX (Dispute Resolution). If the United States prevails in the dispute, Performing Settling Defendants shall pay the sums due (with accrued Interest) to the United States within ten days after resolution of the dispute. If Performing Settling Defendants prevail concerning any aspect of the contested costs, Performing Settling Defendants shall pay that portion of the costs (plus associated accrued Interest) for which they did not prevail to the United States within ten days after resolution of the dispute. Performing Settling Defendants shall be disbursed any balance of the escrow account. All payments to the United States under this Paragraph shall be made in accordance with Paragraph 55(b) (Instructions for Future Response Costs Payments).

b. If Performing Settling Defendants dispute a DTSC billing, or any part thereof, Performing Settling Defendants shall notify DTSC's assigned project manager and attempt to informally resolve the dispute with DTSC's project coordinator and branch chief. If Performing Settling Defendants desire to formally request dispute resolution with regard to the billing, Performing Settling Defendants shall file a request for dispute resolution in writing within 45 days of receipt of the billing in dispute. The written request shall describe all issues in dispute and shall set forth the reasons for the dispute, both factual and legal. If the dispute pertains only to a portion of the costs included in the invoice, Performing Settling Defendants shall pay all costs which are undisputed in accordance with Paragraph 55(d). The filing of a notice of dispute pursuant to this Paragraph shall not stay the accrual of Interest on any unpaid costs pending resolution of the dispute. The written request shall be sent to:

A copy of the written request for dispute resolution shall also be sent to the person designated by DTSC to receive submittals under this Consent Decree. A decision on the billing dispute will be rendered by the Chief, Collections and Resolution Unit, or other DTSC designee.

c. The dispute resolution procedures set forth in this Paragraph in conjunction with the procedures set forth in Section XIX (Dispute Resolution) shall be the exclusive mechanism for resolving disputes regarding Performing Settling Defendants' obligation to reimburse the United States or DTSC for its Future Response Costs.

57. Interest. In the event that any payment for Past Response Costs or Future Response Costs required under this Section is not made by the date required, affected Settling Defendants shall pay Interest to EPA or DTSC on the unpaid balance as appropriate. The Interest to be paid on Past Response Costs under this Paragraph shall begin to accrue on the date due. The Interest on Future Response Costs shall begin to accrue on the due date of the bill. The Interest shall accrue through the date of Settling Defendants' payment. Payments of Interest made under this Paragraph shall be in addition to such other remedies or sanctions available to Plaintiffs by virtue of Settling Defendants' failure to make timely payments under this Section including, but not limited to, payment of stipulated penalties pursuant to Paragraph 79.

58. Payments between Settling Defendants. All payments to Performing Settling Defendants by Contributing Settling Defendants will be made in accordance with Appendix H.

XVII. INDEMNIFICATION AND INSURANCE

59. Performing Settling Defendants' Indemnification of the United States.

60. Performing Settling Defendants covenant not to sue and agree not to assert any claims or causes of action against the United States or DTSC for damages or reimbursement or for set-off of any payments made or to be made to the United States or DTSC, arising from or on account of any contract, agreement, or arrangement between any one or more of Performing Settling Defendants and any person for performance of Work on or relating to the Site, including, but not limited to, claims on account of construction delays. In addition, Performing Settling Defendants shall indemnify and hold harmless the United States and DTSC with respect to any and all claims for damages or reimbursement arising from or on account of any contract, agreement, or arrangement between any one or more of Performing Settling Defendants and any person for performance of Work on or relating to the Site, including, but not limited to, claims on account of construction delays.

61. No later than 15 days before commencing any on-site Work, Performing Settling Defendants or their contractors shall secure, and shall maintain until the first anniversary after EPA's Certification of Completion pursuant to Section XIV (Certificate of Completion), commercial general liability insurance with limits of $5,000,000 (Five Million Dollars), for any one occurrence, and automobile liability insurance with limits of $2,000,000 (Two Million Dollars), combined single limit, naming the United States as an additional insured with respect to all liability arising out of the activities performed by or on behalf of Performing Settling Defendants pursuant to this Consent Decree. In addition, for the duration of this Consent Decree, Performing Settling Defendants shall satisfy, or shall ensure that their respective contractors or subcontractors satisfy, all applicable laws and regulations regarding the provision of worker's compensation insurance for all persons performing the Work on behalf of Performing Settling Defendants in furtherance of this Consent Decree. Prior to commencement of the Work under this Consent Decree, Performing Settling Defendants shall provide to EPA and DTSC certificates of such insurance and a copy of each insurance policy. Performing Settling Defendants shall resubmit such certificates and copies of policies each year on the anniversary of the Effective Date. If Performing Settling Defendants demonstrate by evidence satisfactory to EPA and DTSC that any contractor or subcontractor maintains insurance equivalent to that described above, or insurance covering the same risks but in a lesser amount, then, with respect to that contractor or subcontractor, Performing Settling Defendants need provide only that portion of the insurance described above which is not maintained by the contractor or subcontractor.

XVIII. FORCE MAJEURE

62. "Force Majeure," for purposes of this Consent Decree, is defined as any event arising from causes beyond the control of Performing Settling Defendants, of any entity controlled by Performing Settling Defendants, or of Performing Settling Defendants' contractors that delays or prevents the performance of any obligation under this Consent Decree despite Performing Settling Defendants' best efforts to fulfill the obligation. The requirement that Performing Settling Defendants exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure and best 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 minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the Work or a failure to attain the Performance Standards unless such financial inability is solely caused by third parties or circumstances outside the control of the Performing Settling Defendants.

63. If any event occurs or has occurred that may delay the performance of any obligation under this Consent Decree for which Performing Settling Defendants intend or may intend to assert a claim of force majeure, Performing Settling Defendants shall notify EPA's Project Coordinator orally or, in his or her absence, EPA's Alternate Project Coordinator or, in the event both of EPA's designated representatives are unavailable, the Assistant Director of the Superfund Division, EPA Region IX, within five days of when Performing Settling Defendants first knew that the event would cause a delay. Within ten days thereafter, Performing Settling Defendants shall provide in writing to EPA and DTSC an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; Performing Settling Defendants' rationale for attributing such delay to a force majeure; and a statement as to whether, in the opinion of Performing Settling Defendants, such event may cause or contribute to an endangerment to public health, welfare or the environment. Performing Settling Defendants shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Performing Settling Defendants shall be deemed to know of any circumstance of which Performing Settling Defendants or Performing Settling Defendants' contractors knew or should have known. Failure to comply with the above requirements regarding an event shall preclude Performing Settling Defendants from receiving a determination of Force Majeure regarding that event, provided, however, that if EPA, despite the late notice, is able to assess to its satisfaction whether the event is a Force Majeure under Paragraph 62 and whether Performing Settling Defendants have exercised their best efforts under Paragraph 62, EPA, in its unreviewable discretion, may excuse in writing Performing Settling Defendants' failure to submit timely notices under this Paragraph.

64. If EPA, after reasonable opportunity for review and comment by DTSC, agrees that the delay or anticipated delay is attributable to a Force Majeure, the time for performance of the obligations under this Consent Decree that are affected by the Force Majeure will be extended by EPA, after reasonable opportunity for review and comment by DTSC, for such time as is necessary to complete those obligations. An extension of the time for performance of the obligations affected by the Force Majeure shall not, of itself, extend the time for performance of any other obligation. If EPA does not agree that the delay or anticipated delay has been or will be caused by a Force Majeure, EPA will promptly notify Performing Settling Defendants in writing of its decision. If EPA, after reasonable opportunity for review and comment by DTSC, agrees that the delay is attributable to a Force Majeure, EPA will notify Performing Settling Defendants in writing of the length of the extension, if any, for performance of the obligations affected by the Force Majeure.

65. If Performing Settling Defendants elect to invoke the dispute resolution procedures set forth in Section XIX (Dispute Resolution), they shall do so no later than 15 days after receipt of EPA's notice. In any such proceeding, Performing Settling Defendants shall have the burden of demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or will be caused by a Force Majeure, that the duration of the delay or the extension sought was or will be warranted under the circumstances, that best efforts were or will be exercised to avoid and mitigate the effects of the delay, and that Performing Settling Defendants complied with the requirements of Paragraphs 62 and 63. If Performing Settling Defendants carry this burden, the delay at issue shall be deemed not to be a violation by Performing Settling Defendants of the affected obligation of this Consent Decree identified to EPA, DTSC and the Court.

XIX. DISPUTE RESOLUTION

66. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes regarding this Consent Decree. However, the procedures set forth in this Section shall not apply to actions by the United States and/or DTSC to enforce obligations of Performing Settling Defendants that have not been disputed in accordance with this Section.

67. Any dispute regarding this Consent Decree shall in the first instance be the subject of informal negotiations between the parties to the dispute. The period for informal negotiations shall not exceed 20 days from the time the dispute arises, unless it is modified by written agreement of the parties to the dispute. The dispute shall be considered to have arisen when one party sends the other parties a written Notice of Dispute.

68. Statements of Position.

69. Record Review. Formal dispute resolution for disputes pertaining to the selection or adequacy of any response action and all other disputes that are accorded review on the administrative record under applicable principles of administrative law shall be conducted pursuant to the procedures set forth in this Paragraph. For purposes of this Paragraph, the adequacy of any response action includes, without limitation, the adequacy or appropriateness of plans, procedures to implement plans, or any other items related to implementation of the response action requiring approval by EPA and/or DTSC under this Consent Decree, and the adequacy of the performance of response actions taken pursuant to this Consent Decree. Nothing in this Consent Decree shall be construed to allow any dispute by Settling Defendants regarding the validity of the provisions of the ROD or any Consent Decree ROD Amendment.

70. Formal dispute resolution for disputes that neither pertain to the selection or adequacy of any response action nor are otherwise accorded review on the administrative record under applicable principles of administrative law shall be governed by this Paragraph.

71. The invocation of formal dispute resolution procedures under this Section shall not extend, postpone or affect in any way any obligation of Performing Settling Defendants under this Consent Decree, not directly in dispute or necessarily affected thereby, unless EPA and/or DTSC or the Court agrees otherwise. Stipulated penalties with respect to the disputed matter shall continue to accrue but payment shall be stayed pending resolution of the dispute. Notwithstanding the stay of payment, stipulated penalties shall accrue from the first day of noncompliance with any applicable provision of this Consent Decree. In the event that Performing Settling Defendants do not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in Section XX (Stipulated Penalties).

XX. STIPULATED PENALTIES

72. Performing Settling Defendants shall be liable for stipulated penalties in the amounts set forth in Paragraphs 73 and 74 to the United States and DTSC for failure to comply with the requirements of this Consent Decree specified below, unless excused under Section XVIII (Force Majeure) or Section XIX (Dispute Resolution). "Compliance" by Performing Settling Defendants shall include completion of all payments and activities required under this Consent Decree or any plan, report, or other deliverable approved under this Consent Decree, in accordance with all applicable requirements of law, this Consent Decree, the SOW, and any plans, reports, or other deliverables approved under this Consent Decree and within the specified time schedules established by and approved under this Consent Decree.

73. Stipulated Penalty Amounts — Work (Including Payments and Excluding Plans, Reports, and Other Deliverables).

74. Stipulated Penalty Amounts-Plans, Reports, and Other Deliverables The following stipulated penalties shall accrue per violation per day for failure to submit timely or adequate reports or other plans or deliverables pursuant to the Consent Decree.

75. In the event that EPA assumes performance of a portion or all of the Work pursuant to Paragraph 90 ("Work Takeover"), Performing Settling Defendants shall be liable for a stipulated penalty in the amount of $1,000,000 (One Million Dollars). Stipulated Penalties under this Paragraph are in addition to the remedies available under Paragraphs 47 (Funding for Work Takeover) and 93(Work Takeover). The imposition of any such penalty will be subject to the provisions of Section XIX (Dispute Resolution).

76. Each Contributing Settling Defendant, Ability-To-Pay Settling Defendant and De Minimis Settling Defendant shall be liable for stipulated penalties in the following amounts for each day that it fails to make payments of monies as required by this Consent Decree.

77. All penalties shall begin to accrue on the day after the complete performance is due or the day a violation occurs, whichever is later, and shall continue to accrue through the final day of the correction of the noncompliance or completion of the activity. However, stipulated penalties shall not accrue: (a) with respect to a deficient submission under Section XI (EPA Approval of Plans and Other Submissions), during the period, if any, beginning on the 31st day after EPA's receipt of such submission until the date that EPA notifies Performing Settling Defendants of any deficiency; (b) with respect to a decision by the Director of the Superfund Division, EPA Region IX, under Paragraph 69 or 70 of Section XIX (Dispute Resolution), during the period, if any, beginning on the 31st day after the date that Performing Settling Defendants' reply to EPA's Statement of Position is received until the date that the Director issues a final decision regarding such dispute; or (c) with respect to judicial review by this Court of any dispute under Section XIX (Dispute Resolution), during the period, if any, beginning on the 31st day after the Court's receipt of the final submission regarding the dispute until the date that the Court issues a final decision regarding such dispute. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate penalties for separate violations of this Consent Decree.

78. Following EPA's determination that Performing Settling Defendants have failed to comply with a requirement of this Consent Decree, or DTSC's determination that Performing Settling Defendants have failed to comply with Paragraph 55, EPA, or as appropriate DTSC, will give Performing Settling Defendants written notification of the same and describe the noncompliance. If such noncompliance relates to a deficiency in a submittal, Performing Settling Defendants will have 30 days within which to cure such deficiency. For any other non-compliance, it is within EPA's discretion whether to give the Performing Settling Defendants an opportunity to cure the deficiency prior to a demand for penalties. EPA or DTSC may send Performing Settling Defendants a written demand for the payment of the penalties. Penalties shall accrue as provided in the preceding Paragraph whether or not EPA has notified Performing Settling Defendants of a violation.

79. All penalties accruing under this Section shall be due and payable to the United States and DTSC within 30 days after Performing Settling Defendants' receipt from EPA, or, as appropriate, DTSC, of a demand for payment of the penalties, unless Performing Settling Defendants invoke the Dispute Resolution procedures under Section XIX (Dispute Resolution) within the 30-day period. All payments to the United States under this Section shall indicate that the payment is for stipulated penalties, and shall be made in accordance with Paragraph 55(b) (Instructions for Future Response Costs Payments). All payments to DTSC under this section shall be made in accordance with Paragraph 55(d).

80. Penalties shall continue to accrue as provided in Paragraph 77 during any dispute resolution period, but need not be paid until the following:

81. If Performing Settling Defendants fail to pay stipulated penalties when due, Performing Settling Defendants shall pay Interest on the unpaid stipulated penalties as follows: (a) if Performing Settling Defendants have timely invoked dispute resolution such that the obligation to pay stipulated penalties has been stayed pending the outcome of the dispute resolution, Interest shall accrue from the date stipulated penalties are due pursuant to Paragraph 80 until the date of payment; and (b) if Performing Settling Defendants fail to timely invoke dispute resolution, Interest shall accrue from the date of demand under Paragraph 78 until the date of payment. If Performing Settling Defendants fail to pay stipulated penalties and Interest when due, the United States may institute proceedings to collect the penalties and Interest.

82. The payment of penalties and Interest, if any, shall not alter in any way Performing Settling Defendants' obligation to complete the performance of the Work required under this Consent Decree.

83. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in any way limiting the ability of the United States or DTSC to seek any other remedies or sanctions available by virtue of Performing Settling Defendants' violation of this Decree or of the statutes and regulations upon which it is based, including, but not limited to, penalties pursuant to Section 122(l) of CERCLA, 42 U.S.C. § 9622(l), provided, however, that the United States or DTSC shall not seek civil penalties pursuant to Section 122(l) of CERCLA for any violation for which a stipulated penalty is provided in this Consent Decree, except in the case of a willful violation of the Consent Decree.

84. Notwithstanding any other provision of this Section, the United States or DTSC may, in its unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to this Consent Decree.

XXI. COVENANTS BY PLAINTIFFS

85. In consideration of the actions that will be performed and the payments that will be made by Settling Defendants under this Consent Decree, and except as specifically provided in this Paragraph and in Paragraphs 86, 87 (United States' Pre- and Post-Certification Reservations) and 89 (General Reservations of Rights), the United States covenants not to sue or to take administrative action against Settling Defendants pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), and DTSC covenants not to sue or take administrative action against Settling Defendants pursuant to Section 107(a) of CERCLA, 42 U.S.C.§ 9607(a) or Health and Safety Code § 25358.3 and 25360, relating to the Site. These covenants shall take effect for each Ability-to-Pay Settling Defendant, each De Minimis Settling Defendant and, except with respect to future obligations pursuant to this Consent Decree, Performing Settling Defendants, upon receipt by EPA and DTSC from each such Settling Defendant of the payments required by Section XVI (Payments for Past Response Costs) and any Interest or stipulated penalties due thereon under Paragraph 57 (Interest) or Section XX (Stipulated Penalties). These covenants not to sue shall take effect for each Contributing Settling Defendant upon EPA's and DTSC's receipt of notification, pursuant to Paragraph 6.d., that such Contributing Settling Defendant has discharged its payment obligations pursuant to this Decree. With respect to future obligations pursuant to this Consent Decree, these covenants shall take effect for Performing Settling Defendants upon Certification of Completion of Remedial Action by EPA pursuant to Paragraph 50(b) of Section XIV (Certificate of Completion). These covenants are conditioned upon the satisfactory performance by Settling Defendants of their obligations under this Consent Decree. These covenants extend only to Settling Defendants and do not extend to any other person.

86. United States' Pre-Certification Reservations. Subject only to the provisions of Paragraph 13(b) of this Consent Decree, the United States and DTSC reserve, and this Consent Decree is without prejudice to, the right to institute proceedings in this action or in a new action, and/or to issue an administrative order, seeking to compel Performing Settling Defendants to perform further response actions at the Site and/or to pay the United States or DTSC for additional costs of response if, (a) prior to Certification of Completion of the Remedial Action, (1) conditions at the Site, previously unknown to EPA or DTSC, are discovered, or (2) information, previously unknown to EPA or DTSC, is received, in whole or in part, and (b) EPA, after reasonable opportunity for review and comment by DTSC, determines that these previously unknown conditions or information together with any other relevant information indicates that the Remedial Action is not protective of human health or the environment.

87. United States' Post-Certification Reservations. Subject only to the provisions of Paragraph 13(b) of this Consent Decree, the United States and DTSC reserve, and this Consent Decree is without prejudice to, the right to institute proceedings in this action or in a new action, and/or to issue an administrative order, seeking to compel Performing Settling Defendants to perform further response actions at the Site and/or to pay the United States and DTSC for additional costs of response if, (a) subsequent to Certification of Completion of the Remedial Action, (1) conditions at the Site, previously unknown to EPA or DTSC, are discovered, or (2) information, previously unknown to EPA and DTSC, is received, in whole or in part, and (b) EPA, after reasonable opportunity for review and comment by DTSC, determines that these previously unknown conditions or this information together with other relevant information indicate that the Remedial Action is not protective of human health or the environment.

88. For purposes of Paragraph 86 (United States' Pre-Certification Reservations), the information and the conditions known to EPA or DTSC will include only that information and those conditions known to EPA as of the date this Consent Decree is lodged. For purposes of Paragraph 87 (United States' Post-Certification Reservations), the information and the conditions known to EPA or DTSC shall include only that information and those conditions known to EPA as of the date of Certification of Completion of the Remedial Action and set forth in the ROD, the administrative record supporting the ROD, the post-ROD administrative record, or in any information received by EPA or DTSC pursuant to the requirements of this Consent Decree prior to Certification of Completion of the Remedial Action.

89. General Reservations of Rights. The United States and DTSC reserve, and this Consent Decree is without prejudice to, all rights against Settling Defendants with respect to all matters not expressly included within Plaintiff's covenants. Notwithstanding any other provision of this Consent Decree, the United States and DTSC reserve all rights against Performing Settling Defendants, and all rights other than those set out in subsection (i), below, against Contributing Settling Defendants and De Minimis Settling Defendants, and all rights other than those set out in subsections (i) and (j), below, against Ability-to-Pay Settling Defendants, with respect to:

90. Work Takeover.

XXII. COVENANTS BY SETTLING DEFENDANTS

92. Covenants by Settling Defendants. Subject to the reservations in Paragraph 94, Settling Defendants covenant not to sue and agree not to assert any claims or causes of action against the United States or DTSC with respect to the Site, and this Consent Decree, including, but not limited to:

93. Except as provided in Paragraph 96 (Claims Against De Minimis Parties, Ability-to-Pay Parties, and Other Persons That Received Special Notice), and Paragraph 101 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if the United States or DTSC brings a cause of action or issues an order pursuant to any of the reservations in Section XXI (Covenants by Plaintiffs), other than in Paragraphs 89.a (claims for failure to meet a requirement of the Consent Decree), 89.g (criminal liability), and 89.h (violations of federal/state law 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 or DTSC is seeking pursuant to the applicable reservation.

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

95. Nothing in this Consent Decree shall be deemed to constitute preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d).

96. Claims against De Minimis Parties, Ability-to-Pay Parties and Other Persons That Received Special Notice. Settling Defendants agree not to assert any claims or causes of action and to waive all claims or 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 for response costs relating to the Site against any person that has entered or in the future enters into a final settlement based on limited ability to pay with EPA with respect to the Site. Except as to total costs of implementing the Remedial Action in the ROD, or any amendments thereto, incurred by the United States or any other person in excess of $35,000,000 (Thirty-Five Million Dollars) (exclusive of EPA's oversight costs) from the Effective Date until issuance of the Certificate of Completion of the Remedial Action, Settling Defendants agree not to assert any claims or causes of action and to waive all claims or 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 for response costs relating to the Site against any person that has entered or in the future enters into a CERCLA Section 122(g) de minimis settlement with EPA with respect to the Site. For a period of 30 months from the Effective Date of this Consent Decree, Settling Defendants agree not to assert any claims or causes of action and to waive all claims and 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 for response actions relating to the Site against any person not a party to this Consent Decree that received notice under CERCLA Section 122(e)(1), 42 U.S.C § 9622(e)(1), relating to the Cooper Drum Company Superfund Site. These waivers shall not apply with respect to any defense, claim, or cause of action that a Settling Defendant may have against any person if such person asserts a claim or cause of action relating to the Site against such Settling Defendant.

XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION

97. Except as provided in Paragraph 96 (Claims against De Minimis Parties, Ability to Pay Parties, and Persons That Received Special Notice), nothing in this Consent Decree shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Consent Decree. Except as provided in Paragraph 96 (Claims against De Minimis Parties, Ability to Pay Parties, and Persons That Received Special Notice), each of the Parties expressly reserves any and all rights (including, but not limited to, pursuant to Section 113(f)(2)-(3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), defenses, 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 to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or response action and to enter into settlements that give rise to contribution protection pursuant to Section 113(f)(2).

98. The Parties agree, and by entering this Consent Decree this Court finds, that this Consent Decree constitutes a judicially approved settlement for purposes of Section 113(f)(2) of CERCLA, 42 U.S.C § 9613(f)(2), and that each Settling Defendant is entitled, as of the Effective Date, to protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, or as may be otherwise provided by law, for "matters addressed" in this Consent Decree. The "matters addressed" in this Consent Decree are all response actions taken or to be taken and all response costs incurred or to be incurred, at or in connection with the Site, not to include response actions to be taken and response costs to be incurred in connection with the remediation of aquifers underlying the Gaspur Aquifer, including the Exposition Aquifer, by the United States or DTSC or any other person; provided, however, that if the United States or DTSC exercises rights under the reservations in Section XXI (Covenants by Plaintiffs) other than Paragraphs 89.a (claims for failure to meet a requirement of the Consent Decree), 89.g (criminal liability), or 89.h (violations of federal law during or after implementation of the Work), the "matters addressed" in this Consent Decree will no longer include those response costs or response actions.

99. Each Settling Defendant shall, with respect to any suit or claim brought by it for matters related to this Consent Decree, notify the United States and DTSC in writing no later than 60 days prior to the initiation of such suit or claim.

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

101. Res Judicata and Other Defenses. (a) In any subsequent administrative or judicial proceeding initiated by the United States or DTSC for injunctive relief, recovery of response costs, or other relief relating to the Site, Settling Defendants shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the United States or DTSC in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the covenants not to sue set forth in Section XXI (Covenants by Plaintiffs); (b) In any subsequent administrative or judicial proceeding initiated by the United States or DTSC for injunctive relief, recovery of response costs, or other relief relating to aquifers underlying the Gaspur Aquifer, including the Exposition Aquifer, Settling Defendants shall not assert, and may not maintain, any defense based on the contention that such claims should have been brought in the instant case and/or are res judicata or estopped by termination of the Order as provided in Paragraph 121 of this Consent Decree.

XXIV. ACCESSTOINFORMATION

102. Settling Defendants shall provide to EPA and DTSC, upon request, copies of all records, reports, documents and other information (including records, reports, documents, and other information in electronic form) (hereinafter referred to as "Records") within their possession or control or that of their contractors or agents relating to activities at the Site or to the 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 related to the Work. Settling Defendants shall also make available to EPA, for purposes of investigation, information gathering, or testimony related to the Site, their employees, agents, or representatives with knowledge of relevant facts concerning the performance of the Work.

103. Business Confidential and Privileged Documents.

104. No claim of confidentiality or privilege shall be made with respect to any data associated with performance of the Work, including, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or engineering data from the Site.

XXV. RETENTION OF RECORDS

105. Until ten years after Settling Defendants' receipt of EPA's notification pursuant to Paragraph 50(b) (Completion of the Work), each Settling Defendant shall preserve and retain all non-identical copies of Records (including Records in electronic form) now in its possession or control or that come into its possession or control that relate in any manner to its liability under CERCLA with respect to the Site, provided, however, that Settling Defendants who are potentially liable as owners or operators of the Site must retain, in addition, all Records that relate to the liability of any other person under CERCLA with respect to the Site. Performing Settling Defendants must also retain, and instruct their contractors and agents to preserve, for the same period of time specified above, all non-identical copies of the last draft or final version of any Records (including Records in electronic form) now in their possession or control or which come into their possession or control that relate in any manner to the performance of the Work, provided, however, that Performing Settling Defendants (and their contractors and agents) must retain, in addition, copies of all data generated during the performance of the Work and not contained in the aforementioned Records required to be retained. Each of the above record retention requirements shall apply regardless of any corporate retention policy to the contrary.

106. At the conclusion of this record retention period, Settling Defendants shall notify the United States and DTSC at least 30 days prior to the destruction of any such Records, and, upon request by the United States and DTSC, Settling Defendants shall promptly deliver any such Records to EPA or, as appropriate, to DTSC. Settling Defendants may assert that certain Records are privileged under the attorney-client privilege or any other privilege recognized by federal law. If Settling Defendants assert such a privilege, they shall provide the Plaintiffs with the following: (a) the title of the Record; (b) the date of the Record; (c) the name, title, affiliation (e.g., company or firm), and address of the author of the Record; (d) the name and title of each addressee and recipient; (e) a description of the subject of the Record; and (f) the privilege asserted by Settling Defendants. If a claim of privilege applies only to a portion of a Record, the Record shall be provided to the United States and DTSC in redacted form to mask the privileged portion only. Settling Defendants shall retain all Records that they claim to be privileged until the United States has had a reasonable opportunity to dispute the privilege claim and any such dispute has been resolved in Settling Defendants' favor. However, no Records created or generated pursuant to the requirements of this Consent Decree shall be withheld on the grounds that they are privileged or confidential.

107. Each Settling Defendant certifies individually that, to the best of its knowledge and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed, or otherwise disposed of any Records (other than identical copies) relating to its potential liability regarding the Site since the earlier of notification of potential liability by the United States or DTSC or the filing of suit against it regarding the Site and that it has fully complied with any and all EPA or DTSC requests for information regarding the Site pursuant to Section 104(e) and 122(e) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927, or §§ 25185 and 25358.1 of the Health and Safety Code.

108. The Ability-to-Pay Settling Defendants hereby certify that, to the best of their knowledge and belief, after thorough inquiry, they have submitted to EPA financial information that at the time of submittal fairly, accurately, and materially set forth their financial circumstances. The Ability-to-Pay Settling Defendants also certify that those circumstances have either not materially changed between the time the financial information was submitted to EPA and the time of Consent Decree execution or, if circumstances have materially changed, their financial position is now worse than it was at the time the financial documents were submitted.

XXVI. NOTICES AND SUBMISSIONS

109. Whenever, under the terms of this Consent Decree, written notice is required to be given or a report or other document is required to be sent by one Party to another, it shall be directed to the individuals at the addresses specified below, unless those individuals or their successors give notice of a change to the other Parties in writing. All notices and submissions shall be considered effective upon receipt, unless otherwise provided. Written notice as specified herein shall constitute complete satisfaction of any written notice requirement of the Consent Decree with respect to the United States, EPA, and the Settling Defendants, respectively. Notices required to be sent to EPA, and not to the United States, under the terms of this Consent Decree, should not be sent to the U.S. Department of Justice:

As to the United States:

As to EPA:

As to the Regional Financial Management Officer:

As to the Performing Settling Defendants:

As to DTSC:

As to Contributing Settling Defendants, Ability-To-Pay Settling Defendants and De Minimis Settling Defendants: See names and addresses on Appendices F, G and H to this Consent Decree

XXVII. RETENTION OF JURISDICTION

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

XXVIII. APPENDICES

111. The following appendices are incorporated into this Consent Decree:

"Appendix A" is the ROD.

"Appendix B" is the description of the Site.

"Appendix C" is the SOW.

"Appendix D" is collectively the two Remedial Design Reports completed by EPA.

"Appendix E" is the list of all Settling Defendants.

"Appendix F" is the list of the Ability-to-Pay Settling Defendants and the amounts they are to pay to the United States pursuant to this Consent Decree.

"Appendix G" is the list of De Minimis Settling Defendants and the amounts they are to pay to the United States pursuant to this Consent Decree.

"Appendix H" is the list of Contributing Settling Defendants and the amounts they are to pay to the Performing Settling Defendants pursuant to this Consent Decree.

"Appendix I" is the list of Performing Settling Defendants.

"Appendix J" is the form of Performance Guarantee selected by the Performing Settling Defendants and approved by the United States.

XXIX. COMMUNITY INVOLVEMENT

112. If requested by EPA, Performing Settling Defendants shall participate in community involvement activities pursuant to the Community Involvement Plan developed by EPA. Performing Settling Defendants shall reasonably cooperate with EPA in providing information regarding the Work to the public. As requested by EPA, Performing Settling Defendants shall participate in the preparation of such information for dissemination to the public and in public meetings that may be held or sponsored by EPA to explain activities at or relating to the Site.

XXX. MODIFICATION

113. Except as provided in Paragraph 13 (Modification of SOW or Related Work Plans), material modifications to this Consent Decree, including the SOW, shall be in writing, signed by the United States, DTSC and Settling Defendants, and shall be effective upon approval by the Court. Except as provided in Paragraph 13, non-material modifications to this Consent Decree, including the SOW, shall be in writing and shall be effective when signed by duly authorized representatives of the United States, and Settling Defendants. All modifications of the Consent Decree, other than the SOW, shall also be signed by DTSC. A modification to the SOW shall be considered material if it implements a Consent Decree ROD Amendment that fundamentally alters 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 United States will provide DTSC with a reasonable opportunity to review and comment on the proposed modification.

114. Any modification that does not affect the obligations of or the protections afforded to Ability-to-Pay Settling Defendants, Contributing Settling Defendants or De Minimis Settling Defendants may be executed without the signatures of Ability-to-Pay Settling Defendants, Contributing Settling Defendants or De Minimis Settling Defendants.

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

XXXI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

116. This Consent Decree shall be lodged with the Court for a period of not less than 30 days for public notice 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 and DTSC reserve the right to withdraw or withhold their consent if the comments regarding the Consent Decree disclose facts or considerations which indicate that the Consent Decree is inappropriate, improper, or inadequate. Settling Defendants consent to the entry of this Consent Decree without further notice.

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

XXXII. SIGNATORIES/SERVICE

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

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

120. 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 mail on 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 service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court, including, but not limited to, service of a summons. Settling Defendants need not file an answer to the complaint in this action unless or until the court expressly declines to enter this Consent Decree.

XXXIII. TERMINATION OF ORDER

121. Upon entry of this Consent Decree, Unilateral Order 2009-07 is terminated as to such Settling Defendants.

XXXIV. FINAL JUDGMENT

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

123. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment between and among the United States, DTSC and Settling Defendants. The Court enters this judgment as a final judgment under Federal Rules of Civil Procedure 54 and 58.

SO ORDERED.