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Consent Decree for the Butte Priority Soils Operable Unit

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Consent Decree for the Butte Priority Soils Operable Unit IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION UNITED STATES OF AMERICA AND ) THE STATE OF MONTANA, ) ) Plaintiffs, ) ) v. ) ) Civil Action No. CV 89-039-BU-SEH ATLANTIC RICHFIELD COMPANY ) and The City and County of BUTTE- ) SILVER BOW, a Municipal Corporation ) And Political Subdivision of the State of ) Montana, ) ) Defendants. ) CONSENT DECREE FOR THE BUTTE PRIORITY SOILS OPERABLE UNIT PARTIAL REMEDIAL DESIGN/REMEDIAL ACTION and OPERATION AND MAINTENANCE TABLE OF CONTENTS Page I. BACKGROUND ........................................................................................................................ 1 II. JURISDICTION ...................................................................................................................... 13 III. PARTIES BOUND ................................................................................................................ 14 IV. DEFINITIONS ...................................................................................................................... 15 V. GENERAL PROVISIONS ..................................................................................................... 34 VI. PAYMENT OF RESPONSE COSTS ................................................................................... 39 VII. PERFORMANCE OF THE WORK BY THE SETTLING DEFENDANTS ...................... 55 VIII. PERFORMANCE OF THE BTC RIPARIAN ACTIONS BY DEQ ................................. 60 IX. REMEDY REVIEW .............................................................................................................. 66 X. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS .................................... 69 XI. ACCESS AND INSTITUTIONAL CONTROLS ................................................................. 70 XII. FINANCIAL ASSURANCE ................................................................................................ 77 XIII. INDEMNIFICATION AND INSURANCE ....................................................................... 85 XIV. FORCE MAJEURE ............................................................................................................ 89 XV. DISPUTE RESOLUTION ................................................................................................... 92 XVI. STIPULATED PENALTIES .............................................................................................. 99 XVII. COVENANTS AND RESERVATIONS BY THE UNITED STATES AND THE STATE ........................................................................................................................... 106 XVIII. COVENANTS AND RESERVATIONS BY SETTLING DEFENDANTS AND SFAS .............................................................................................................................. 125 XIX. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION ................................. 137 XX. ACCESS TO INFORMATION ......................................................................................... 140 XXI. RETENTION OF RECORDS .......................................................................................... 142 XXII. NOTICES AND SUBMISSIONS ................................................................................... 144 XXIII. RETENTION OF JURISDICTION ............................................................................... 147 XXIV. APPENDICES ............................................................................................................... 147 XXV. EFFECTIVE DATE ........................................................................................................ 148 XXVI. MODIFICATION .......................................................................................................... 148 XXVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ................................ 149 XXVIII. SIGNATORIES / SERVICE ....................................................................................... 149 ii I. BACKGROUND The United States’ Complaint A. In 1989, the United States of America (“United States”), on behalf of the Administrator of the United States Environmental Protection Agency (“EPA”), filed a complaint (the “Complaint”) in this matter (the “Federal Action”) pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, (“CERCLA”), 42 U.S.C. § 9607, against the Atlantic Richfield Company (“AR”). B. In the Complaint, which was subsequently amended on October 14, 1992, October 31, 1994, August 2, 2003, and November 5, 2004, the United States sought to recover its past response costs together with accrued interest and a declaratory judgment on liability for future response costs paid and incurred at or in connection with the Original Portion of the Silver Bow Creek / Butte Area National Priorities List (“NPL”) Site, the Milltown Reservoir Sediments NPL Site (now referred to as the “Milltown Reservoir / Clark Fork River NPL Site”), and the Anaconda Smelter NPL Site. The November 5, 2004 amendment added to the Complaint an area known as the Butte Priority Soils Operable Unit (“BPSOU”). The BPSOU is the focus of this Consent Decree. C. In response to the United States’ Complaint, AR asserted several defenses and filed counterclaims against the United States, naming several Settling Federal Agencies (“SFAs”), seeking cost recovery, contribution, contractual indemnity, equitable indemnification, recoupment, and declaratory relief. Among AR’s defenses to the United States’ claims is AR’s assertion that the United States’ CERCLA claims are in the nature of contribution under CERCLA § 113 rather than CERCLA § 107, and thus AR’s CERCLA liability is several rather 1 than joint and several. This defense is addressed in a Report and Recommendation issued by the Magistrate in this case. D. The United States is filing, contemporaneously with the lodging of this Consent Decree, an amended complaint to name the City and County of Butte Silver Bow (“BSB”) as a potentially responsible party for the BPSOU under Section 107 of CERCLA, 42 U.S.C. § 9607. E. The State of Montana (the “State”), acting by and through the Montana Department of Environmental Quality (“DEQ”), has filed a motion to intervene and a complaint in intervention in the Federal Action. The State’s amended complaint alleges claims under CERCLA and the Montana Comprehensive Environmental Cleanup and Responsibility Act (“CECRA”), §§ 75-10-701, MCA, et seq. relating to the BPSOU. The State’s claims are expressly limited to the BPSOU and the matters addressed in the Consent Decree. The United States, AR, and BSB agree and the Court finds by entering this Consent Decree that the State’s waiver of sovereign immunity is solely limited to the matters set forth in the State’s complaint in intervention and this Consent Decree, and includes the State’s waiver of sovereign immunity and consent to this Court’s jurisdiction for resolution of any reserved claim brought by AR under Paragraph 96.f (Restoration Reservation). Settlement Framework F. In November of 1998, the United States and AR reached a settlement regarding the response claims of the United States at the Streamside Tailings Operable Unit, which is part of the Silver Bow Creek / Butte Area NPL Site. The Streamside Tailings consent decree, together with a consent decree entered in the case of Montana v. Atlantic Richfield , a related case, both of which were entered on April 19, 1999, also resolved the majority of the Clark Fork River Basin natural resource damages claims of the United States and the State against AR. The 2 Streamside Tailings consent decree also established a framework for resolving the United States’ remaining claims throughout the Clark Fork River Basin in Montana. Under Section VII of the Streamside Tailings consent decree, the parties agreed to resolve the remaining areas in six groups or “baskets” of operable units: 1. Rocker Site; 2. Butte Mine Flooding (Berkeley Pit) Site and the Butte Active Mining Area Site; 3. Anaconda Smelter NPL Site; 4. Clark Fork River Operable Unit, Warm Spring Ponds Operable Units, and the Milltown Reservoir Operable Units; 5. Butte Priority Soils Operable Unit (towns of Butte and Walkerville); and 6. The West Side Soils Operable Unit, formerly referred to as the Non- Priority Soils Operable Unit (rural Butte), as described in paragraph 31(F) of the Streamside Tailings consent decree (which states EPA would follow notice and negotiations procedures under Section 122 of CERCLA, 42 U.S.C. § 9622, for the West Side Soils Operable Unit). The United States, the State and AR have already successfully concluded their negotiations for the Rocker, Butte Mine Flooding, Milltown Reservoir and Clark Fork River sites. This Court entered the Rocker Site consent decree in November of 2000, the Butte Mine Flooding Site consent decree in August of 2002, the Milltown Site consent decree in February of 2006, and the Clark Fork River consent decrees in August of 2008 (the Clark Fork River consent decree also addressed remaining State and federal natural resource damage claims against AR). G. In addition, the United States and AR negotiated a consent decree entitled Consent Decree for Settlement of Remaining Sites Past Response Costs that was entered by this Court on January 24, 2005 (“Past Costs Consent Decree”). The Past Costs Consent Decree addressed response costs incurred responding to hazardous substance contamination at certain Operable Units known as the so-called “Remaining Sites,” defined in that consent decree as
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