throbber
Case 1:21-cv-00012-JNP Document 3-1 Filed 01/29/21 PageID.18 Page 1 of 34
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`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH
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`Civil Action No. 1:21-cv-00012-JNP
`United States of America,
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`
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`v.
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`Stericycle, Inc.,
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`Plaintiff
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`Defendant.
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`CONSENT DECREE
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`TABLE OF CONTENTS
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`Case 1:21-cv-00012-JNP Document 3-1 Filed 01/29/21 PageID.20 Page 3 of 34
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`WHEREAS, Plaintiff United States of America, on behalf of the United States
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`Environmental Protection Agency (“EPA”) has filed a Complaint concurrently with the lodging
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`of this Consent Decree, pursuant to Section 113(b) of the Clean Air Act (“Act”), 42 U.S.C.
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`§ 7413(b). The Complaint alleges that Defendant, Stericycle, Inc. (“Stericycle”) violated
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`regulations set forth in 40 C.F.R. Part 60, Subpart Ce, promulgated by EPA pursuant to Title I of
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`the CAA, 42 U.S.C. §§ 7411 and 7429; Section 129(f)(3) of the CAA, 42 U.S.C. § 7429(f)(3);
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`and requirements of an operating permit issued pursuant to Title V of the CAA, 42 U.S.C.
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`§ 7661.
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`WHEREAS, the Complaint alleges that Defendant violated the above-listed federal
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`environmental statutes and regulations and operating permit requirements at Stericycle’s
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`hospital, medical, and infectious waste incinerator located at 90 North 1100 West, North Salt
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`Lake, Utah (the “Facility”). The Facility is designed to treat non-hazardous medical waste and
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`other approved non-medical waste.
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`WHEREAS, the Complaint specifically alleges that between September 14, 2012, and
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`May 6, 2013, Defendant exceeded emission limits for nitrogen oxides (“NOx”) at the Facility, in
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`violation of regulations set forth in 40 C.F.R. Part 60, Subpart Ce, as incorporated into the State
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`of Utah’s plan for hospital, medical, and infectious waste incinerators, Utah Admin. Code r.307-
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`222 (the “Utah HMIWI Plan”); and the Facility’s operating permit issued pursuant to Title V of
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`the CAA. The Complaint further alleges Defendant failed to conduct required performance tests,
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`submit data from performance tests, report its use of the Facility’s bypass stack, and accurately
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`report the Facility’s maximum charge rates, in violation of the Facility’s operating permit issued
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`pursuant to Title V of the CAA and applicable regulations set forth in 40 C.F.R. Part 60, Subpart
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`Ce, as incorporated into the Utah HMIWI Plan.
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`WHEREAS, on or around May 6, 2013, Defendant began operating selective non-
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`catalytic reduction technology at the Facility to reduce emissions of NOx.
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`WHEREAS, pursuant to an administrative settlement with the State of Utah dated
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`November 25, 2014, Defendant agreed to relocate the Facility’s operations and to permanently
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`cease incineration operations at the Facility within three years of obtaining all necessary permits
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`and approvals for the relocated facility, if applicable.
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`WHEREAS, Defendant does not admit any of the allegations of the Complaint or any
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`liability to the United States arising out of the allegations in the Complaint.
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`WHEREAS, The Parties recognize, and the Court by entering this Consent Decree finds,
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`that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation
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`between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.
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`NOW, THEREFORE, before the taking of any testimony, without the adjudication or
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`admission of any issue of fact or law except as provided in Section I (Jurisdiction and Venue),
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`with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as
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`follows:
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`JURISDICTION AND VENUE
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`1.
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`This Court has jurisdiction over the subject matter of this action, pursuant to
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`28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the Act, 42 U.S.C. § 7413(b). Venue
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`is proper in this District pursuant to Section 113(b) of the Act, 42 U.S.C. § 7413(b), and 28
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`U.S.C. §§ 1391(b) and 1395(a), because the violations alleged in the Complaint are alleged to
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`have occurred in, and Defendant conducts business in, this judicial district. For purposes of this
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`Decree, or any action to enforce this Decree, Defendant consents to the Court’s jurisdiction over
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`this Decree and any such action and over Defendant and consents to venue in this judicial
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`district.
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`2.
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`For purposes of this Consent Decree, Defendant agrees that the Complaint states
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`claims upon which relief may be granted pursuant to Section 113(b) of the CAA, 42 U.S.C.
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`§ 7413(b).
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`3.
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`Notice of commencement of this action has been given to the State of Utah,
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`specifically the State of Utah Department of Environmental Quality, Division of Air Quality by
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`the United States.
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`APPLICABILITY
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`4.
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`The obligations of this Consent Decree apply to and are binding upon the United
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`States, and upon Defendant and any successors, assigns, or other entities or persons otherwise
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`bound by law.
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`5.
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`No transfer of ownership or operation of the Facility, whether in compliance with
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`the procedures of this Paragraph or otherwise, shall relieve Defendant of its obligation to ensure
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`that the terms of the Decree are implemented. At least 30 Days prior to such transfer, Defendant
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`shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously
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`provide written notice of the prospective transfer, together with a copy of the proposed written
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`agreement, to EPA Region 8, the United States Attorney for the District of Utah, and the United
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`States Department of Justice, in accordance with Section XIIII (Notices). Any attempt to
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`transfer ownership or operation of the Facility without complying with this Paragraph constitutes
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`a violation of this Decree.
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`6.
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`Defendant shall provide a copy of this Consent Decree to all officers, employees,
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`and agents whose duties might reasonably include compliance with any provision of this Decree,
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`as well as to any contractor retained to perform work required under this Consent Decree.
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`Defendant shall condition any such contract upon performance of the work in conformity with
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`the terms of this Consent Decree.
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`7.
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`In any action to enforce this Consent Decree, Defendant shall not raise as a
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`defense the failure by any of its officers, directors, employees, agents, or contractors to take any
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`actions necessary to comply with the provisions of this Consent Decree.
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` DEFINITIONS
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`8.
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`Terms used in this Consent decree that are defined in the Act or in regulations
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`promulgated pursuant to the Act shall have the meanings assigned to them in the Act or such
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`regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are
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`used in this Consent Decree, the following definitions shall apply:
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`“Complaint” shall mean the complaint filed by the United States in this action;
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`“Consent Decree” or “Decree” shall mean this Decree;
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`“Day” shall mean a calendar day unless expressly stated to be a business day. In
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`computing any period of time under this Consent Decree, where the last day would fall on a
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`Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next
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`business day;
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`“Defendant(s)” shall mean Stericycle, Inc.;
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`“EPA” shall mean the United States Environmental Protection Agency and any of its
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`successor departments or agencies;
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`“Effective Date” shall have the definition provided in Section XIV.
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`“Facility” shall mean Defendant’s hospital, medical, and infectious waste incinerator
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`located in Davis County, Utah.
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`“Paragraph” shall mean a portion of this Decree identified by an arabic numeral;
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`“Parties” shall mean the United States and Defendant(s);
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`“Section” shall mean a portion of this Decree identified by a roman numeral;
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`“United States” shall mean the United States of America, acting on behalf of EPA.
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` CIVIL PENALTY
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`9.
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`Within 30 Days after the Effective Date, Defendant shall pay the sum of $600,000
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`as a civil penalty, together with interest accruing from the date on which the Consent Decree is
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`lodged with the Court, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging.
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`10.
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`Defendant shall pay the civil penalty due by FedWire Electronic Funds Transfer
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`(“EFT”) to the U.S. Department of Justice account, in accordance with instructions provided to
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`Defendant by the Financial Litigation Unit (“FLU”) of the United States Attorney’s Office for
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`the District of Utah after the Effective Date. The payment instructions provided by the FLU will
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`include a Consolidated Debt Collection System (“CDCS”) number, which Defendant shall use to
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`identify all payments required to be made in accordance with this Consent Decree. The FLU
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`will provide the payment instructions to Kurt Rogers at kurt.rogers@stericycle.com with a copy
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`to Karl Karg at Karl.Karg@lw.com. Defendant may change the individual to receive payment
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`instructions on its behalf by providing written notice of such change to the United States and
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`EPA in accordance with Section XIII (Notices).
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`At the time of payment, Defendant shall send notice that payment has been made: (i) to
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`EPA via email at cinwd_acctsreceivable@epa.gov or via regular mail at EPA Cincinnati Finance
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`Office, 26 W. Martin Luther King Drive, Cincinnati, Ohio 45268; (ii) to the United States via
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`email or regular mail in accordance with Section XIII (Notices); and (iii) to EPA in accordance
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`with Section XIII (Notices). Such notice shall state that the payment is for the civil penalty owed
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`pursuant to the Consent Decree in United States v. Stericycle, Inc. and shall reference the civil
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`action number, CDCS Number and DOJ case number 90-5-2-1-12057.
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`Defendant shall not deduct any penalties paid under this Decree pursuant to this Section
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`or Section VII (Stipulated Penalties) in calculating its federal income tax.
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`COMPLIANCE REQUIREMENTS
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`11.
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`Defendant shall comply with the following applicable laws and requirements with
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`respect to the Facility: the regulations set forth in 40 C.F.R. Part 60, Subpart Ce; Section
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`129(f)(3) of the CAA, 42 U.S.C. § 7429(f)(3); and the requirements of its operating permit
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`issued pursuant to Title V of the CAA, 42 U.S.C. § 7661.
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`SUPPLEMENTAL ENVIRONMENTAL PROJECT
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`12.
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`Defendant shall implement a Supplemental Environmental Project (“SEP”) to
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`replace approximately 15–20 high-emitting school buses in the North Salt Lake, Utah area as
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`described in the appendix to this Decree (“North Salt Lake Clean Diesel Project”). The total cost
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`of the SEP shall be at least $2,500,000. Defendant may recoup costs in excess of $2,000,000
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`from the participating school district as a cost share. The SEP will reduce emissions of NOx,
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`sulfur dioxides, and particulate matter in the area impacted by the Facility’s alleged excess NOx
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`emissions.
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`13.
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`Defendant is responsible for the satisfactory completion of the SEP in accordance
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`with the requirements of this Decree. Defendant may purchase the replacement school buses
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`directly or Defendant may use contractors or consultants in planning and implementing the SEP,
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`including contracting with a school district to purchase the replacement school buses.
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`14. With regard to the SEP, Defendant certifies the truth and accuracy of each of the
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`following:
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`a.
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`All cost information provided to EPA in connection with EPA’s approval
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`of the SEP is complete and accurate and that Defendant in good faith estimates that the
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`cost to implement the SEP, exclusive of administrative expenses and legal fees, is at least
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`$2,000,000;
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`b.
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`As of the date of executing this Decree, Defendant is not required to
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`perform or develop the SEP by any federal, state, or local law or regulation and is not
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`required to perform or develop the SEP by agreement, grant, or as injunctive relief
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`awarded in any other action in any forum;
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`c.
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`The SEP is not a project that Defendant was planning or intending to
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`construct, perform, or implement other than in settlement of the claims resolved in this
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`Decree;
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`d.
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`Defendant has not received and will not receive credit for the SEP in any
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`other enforcement action;
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`e.
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`Other than the permissible cost share referenced in Paragraph 12;
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`Defendant will not receive any reimbursement for any portion of the SEP from any other
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`person; and
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`f.
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`Defendant certifies under penalty of law that it would have agreed to perform
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`a comparably valued, alternative project other than a diesel emissions reduction SEP, if the
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`United States were precluded by law from accepting a diesel emissions reduction SEP.
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`15.
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`By July 31 and January 31 of each year after the Effective Date, until completion
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`of the SEP and submission of the SEP Completion Report in accordance with Paragraph 16,
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`Defendant shall submit a status report that shall include a discussion of Defendant’s progress in
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`satisfying its obligations in connection with the Salt Lake Clean Diesel Project as described in
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`this Section and Appendix A. The status report shall include, at a minimum, a narrative
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`description of activities undertaken and a summary of costs incurred since the previous report.
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`16.
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`Defendant must submit a SEP completion report to the addresses listed in Section
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`XIII (Notices) no later than 90 days following SEP completion pursuant to Paragraph 22. The
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`SEP completion report must contain, at minimum, the following information:
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`a.
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`b.
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`A detailed description of the SEP as implemented;
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`A description of any problems encountered in completing the SEP and the
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`solutions thereto;
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`c.
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`d.
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`An itemized list of all eligible SEP costs expended;
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`Certification that the SEP has been fully implemented pursuant to the
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`provisions of this Decree;
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`e.
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`The information required in Appendix Paragraph 9 for any diesel engine
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`permanently destroyed in accordance with Appendix Paragraph 8; and
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`f.
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`A description of the environmental and public health benefits resulting
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`from implementation of the SEP (with a quantification of the benefits and pollutant
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`reductions, if feasible).
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`17.
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`EPA may, in its sole discretion, require information in addition to that described
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`in the Paragraph 16, in order to evaluate Defendant’s completion report.
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`18.
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`After receiving the SEP completion report, the United States shall notify
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`Defendant whether Defendant has satisfactorily completed the SEP. If Defendant has not
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`completed the SEP in accordance with this Consent Decree, stipulated penalties may be assessed
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`under Section VII.
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`19.
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`Each report submitted by Defendant under this Section shall be signed by an
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`official of the submitting party and include the following certification:
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`I certify under penalty of law that this document and all attachments were prepared under
`my direction or supervision in accordance with a system designed to assure that qualified
`personnel properly gather and evaluate the information submitted. Based on my inquiry
`of the person or persons who manage the system, or those persons directly responsible for
`gathering the information, the information submitted is, to the best of my knowledge and
`belief, true, accurate, and complete. I have no personal knowledge that the information
`submitted is other than true, accurate, and complete. I am aware that there are significant
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`penalties for submitting false information, including the possibility of fine and
`imprisonment for knowing violations.
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`Any public statement, oral or written, in print, film, or other media, made by
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`20.
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`Defendant making reference to the SEP under this Decree shall include the following language:
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`“This project was undertaken in connection with the settlement of an enforcement action, United
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`States v. Stericycle, Inc., taken on behalf of the U.S. Environmental Protection Agency under the
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`Clean Air Act.”
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`21.
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`For federal income tax purposes, Defendant agrees that it will neither capitalize
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`into inventory or basis nor deduct any costs or expenditures incurred in performing the SEP.
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`22.
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`Completion Date. Defendant shall complete the North Salt Lake Clean Diesel
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`Project within three years of the Effective Date of the Decree, except that Defendant may submit
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`a request to the EPA for an extension of time to complete the Project.
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` STIPULATED PENALTIES
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`23.
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`Defendant shall be liable for stipulated penalties to the United States for
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`violations of this Consent Decree as specified below, unless excused under Section VIII (Force
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`Majeure). A violation includes failing to perform any obligation required by the terms of this
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`Decree, including any work plan or schedule approved under this Decree, according to all
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`applicable requirements of this Decree and within the specified time schedules established by or
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`approved under this Decree.
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`a.
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`If Defendant fails to pay the civil penalty required to be paid under
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`Section IV (Civil Penalty) when due, Defendant shall pay a stipulated penalty of $5,000
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`per Day for each Day that the payment is late.
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`b.
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`If Defendant fails to satisfactorily complete the SEP as required by
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`Section VI (Supplemental Environmental Project) and the Appendix, Defendant shall pay
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`a stipulated penalty of $2,250,000, less $120,000 per school bus replaced pursuant to
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`Paragraph 12 of this Decree and the Appendix.
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`c.
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`If Defendant fails to comply with the deadlines in Section VI
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`(Supplemental Environmental Project) of this Consent Decree and the Appendix for
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`implementing the SEP, Defendant shall pay stipulated penalties for each failure to meet
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`an applicable deadline, as follows:
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`Penalty Per Violation Per Day
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`Period of Noncompliance
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`$750
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`$1,250
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`$2,000
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`1st through 14th Day
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`15th through 30th Day
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`31st Day and beyond
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`d.
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`If Defendant fails to submit a SEP status report as required by Paragraph
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`15 or the SEP completion report as required by Paragraph 16, Defendant shall pay
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`stipulated penalties, as follows:
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`Penalty Per Violation Per Day
`$300
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`Period of Noncompliance
`1st through 30th day
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`$1,000
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`31st day and beyond
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`24.
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`Except as provided in subparagraph 23(b), stipulated penalties under this Section
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`shall begin to accrue on the Day after performance is due or on the Day a violation occurs,
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`whichever is applicable, and shall continue to accrue until performance is satisfactorily
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`completed or until the violation ceases. Stipulated penalties shall accrue simultaneously for
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`separate violations of this Consent Decree.
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`25.
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`Defendant shall pay any stipulated penalty within 30 Days of receiving the United
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`States’ written demand.
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`26.
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`The United States may in the unreviewable exercise of its discretion, reduce or
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`waive stipulated penalties otherwise due it under this Consent Decree.
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`27.
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`Stipulated penalties shall continue to accrue as provided in Paragraph 24, during
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`any Dispute Resolution, but need not be paid until the following:
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`a.
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`If the dispute is resolved by agreement of the Parties or by a decision of
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`EPA that is not appealed to the Court, Defendant shall pay accrued penalties determined
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`to be owing, together with interest, to the United States within 30 Days of the effective
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`date of the agreement or the receipt of EPA’s decision or order.
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`b.
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`If the dispute is appealed to the Court and the United States prevails in
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`whole or in part, Defendant shall pay all accrued penalties determined by the Court to be
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`owing, together with interest, within 60 Days of receiving the Court’s decision or order,
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`except as provided in subparagraph c, below.
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`c.
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`If any Party appeals the District Court’s decision, Defendant shall pay all
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`accrued penalties determined to be owing, together with interest, within 15 Days of
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`receiving the final appellate court decision.
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`28.
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`Defendant shall pay stipulated penalties owing to the United States in the manner
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`set forth and with the confirmation notices required by Paragraph 10, except that the transmittal
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`letter shall state that the payment is for stipulated penalties and shall state for which violation(s)
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`the penalties are being paid.
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`29.
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`If Defendant fails to pay stipulated penalties according to the terms of this
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`Consent Decree, Defendant shall be liable for interest on such penalties, as provided for in
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`28 U.S.C. § 1961, accruing as of the date payment became due. Nothing in this Paragraph shall
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`be construed to limit the United States from seeking any remedy otherwise provided by law for
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`Defendant’s failure to pay any stipulated penalties.
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`30.
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`The payment of penalties and interest, if any, shall not alter in any way
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`Defendant’s obligation to complete the performance of the requirements of this Consent Decree.
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`31.
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`Non-Exclusivity of Remedy. Stipulated penalties are not the United States’
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`exclusive remedy for violations of this Consent Decree. Subject to the provisions of Section XI
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`(Effect of Settlement/Reservation of Rights), the United States expressly reserves the right to
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`seek any other relief it deems appropriate for Defendant’s violation of this Decree or applicable
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`law, including but not limited to an action against Defendant for statutory penalties, additional
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`injunctive relief, mitigation or offset measures, or contempt. However, the amount of any
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`statutory penalty assessed for a violation of this Consent Decree shall be reduced by an amount
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`equal to the amount of any stipulated penalty assessed and paid pursuant to this Consent Decree.
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` FORCE MAJEURE
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`32.
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`“Force majeure,” for purposes of this Consent Decree, is defined as any event
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`arising from causes beyond the control of Defendant, of any entity controlled by Defendant, or of
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`Defendant’s contractors, that delays or prevents the performance of any obligation under this
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`Consent Decree despite Defendant’s best efforts to fulfill the obligation. The requirement that
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`Defendant exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate
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`any potential force majeure event and best efforts to address the effects of any potential force
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`majeure event (a) as it is occurring and (b) following the potential force majeure, such that the
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`delay and any adverse effects of the delay are minimized. “Force Majeure” does not include
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`Defendant’s financial inability to perform any obligation under this Consent Decree.
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`33.
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`If any event occurs or has occurred that may delay the performance of any
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`obligation under this Consent Decree, whether or not caused by a force majeure event, Defendant
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`shall provide notice orally or by electronic or facsimile transmission to EPA as provided in
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`Section XIII (Notices) within 72 hours of when Defendant first knew that the event might cause
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`a delay. Within seven days thereafter, Defendant shall provide in writing to EPA an explanation
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`and description of the reasons for the delay; the anticipated duration of the delay; all actions
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`taken or to be taken to prevent or minimize the delay; a schedule for implementation of any
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`measures to be taken to prevent or mitigate the delay or the effect of the delay; Defendant’s
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`rationale for attributing such delay to a force majeure event if it intends to assert such a claim;
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`and a statement as to whether, in the opinion of Defendant, such event may cause or contribute to
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`an endangerment to public health, welfare or the environment. Defendant shall include with any
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`notice all available documentation supporting the claim that the delay was attributable to a force
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`majeure. Failure to comply with the above requirements shall preclude Defendant from asserting
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`any claim of force majeure for that event for the period of time of such failure to comply, and for
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`any additional delay caused by such failure. Defendant shall be deemed to know of any
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`circumstance of which Defendant, any entity controlled by Defendant, or Defendant’s
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`contractors knew or should have known.
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`34.
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`If EPA agrees that the delay or anticipated delay is attributable to a force majeure
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`event, the time for performance of the obligations under this Consent Decree that are affected by
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`the force majeure event will be extended by EPA for such time as is necessary to complete those
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`obligations. An extension of the time for performance of the obligations affected by the force
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`majeure event shall not, of itself, extend the time for performance of any other obligation. EPA
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`will notify Defendant in writing of the length of the extension, if any, for performance of the
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`
`
`obligations affected by the force majeure event. If EPA agrees that the delay or anticipated delay
`
`is attributable to a force majeure event, the time for performance of the obligations under this
`
`Consent Decree that are affected by the force majeure event will be extended by EPA 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 event shall not, of itself, extend the time for
`
`performance of any other obligation. EPA will notify Defendant in writing of the length of the
`
`extension, if any, for performance of the obligations affected by the force majeure event.
`
`35.
`
`If EPA does not agree that the delay or anticipated delay has been or will be
`
`caused by a force majeure event, EPA will notify Defendant in writing of its decision.
`
`36.
`
`If Defendant elects to invoke the dispute resolution procedures set forth in
`
`Section IX (Dispute Resolution), it shall do so no later than 15 days after receipt of EPA’s
`
`notice. In any such proceeding, Defendant 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 event, that the duration of the delay or the extension sought was or will be
`
`warranted under the circumstances, that best efforts were exercised to avoid and mitigate the
`
`effects of the delay, and that Defendant complied with the requirements of Paragraphs 32 and 33.
`
`If Defendant carries this burden, the delay at issue shall be deemed not to be a violation by
`
`Defendant of the affected obligation of this Consent Decree identified to EPA and the Court.
`
` DISPUTE RESOLUTION
`
`37.
`
`Unless otherwise expressly provided for in this Consent Decree, the dispute
`
`resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising
`
`under or with respect to this Consent Decree. Defendant’s failure to seek resolution of a dispute
`
`under this Section shall preclude Defendant from raising any such issue as a defense to an action
`
`by the United States to enforce any obligation of Defendant arising under this Decree.
`
`14
`
`

`

`Case 1:21-cv-00012-JNP Document 3-1 Filed 01/29/21 PageID.34 Page 17 of 34
`
`
`
`38.
`
`Informal Dispute Resolution. Any dispute subject to Dispute Resolution under
`
`this Consent Decree shall first be the subject of informal negotiations. The dispute shall be
`
`considered to have arisen when Defendant sends the United States a written Notice of Dispute.
`
`Such Notice of Dispute shall state clearly the matter in dispute. The period of informal
`
`negotiations shall not exceed 20 Days from the date the dispute arises, unless that period is
`
`modified by written agreement. If the Parties cannot resolve a dispute by informal negotiations,
`
`then the position advanced by the United States shall be considered binding unless, within seven
`
`Days after the conclusion of the informal negotiation period, Defendant invokes formal dispute
`
`resolution procedures as set forth below.
`
`39.
`
`Formal Dispute Resolution. Defendant shall invoke formal dispute resolution
`
`procedures, within the time period provided in Paragraph 38, by serving on the United States a
`
`written Statement of Position regarding the matter in dispute. The Statement of Position shall
`
`include, but need not be limited to, any factual data, analysis, or opinion supporting Defendant’s
`
`position and any supporting documentation relied upon by Defendant.
`
`40.
`
`The United States shall serve its Statement of Position within 45 Days of receipt
`
`of Defendant’s Statement of Position. The United States’ Statement of Position shall include,
`
`but need not be limited to, any factual data, analysis, or opinion supporting that position and any
`
`supporting documentation relied upon by the United States. The United States’ Statement of
`
`Position shall be binding on Defendant, unless Defendant files a motion for judicial review of the
`
`dispute in accordance with Paragraph 41.
`
`41.
`
`Defendant may seek judicial review of the dispute by filing with the Court and
`
`serving on the United States, in accordance with Section XIII (Notices), a motion requesting
`
`judicial resolution of the dispute. The motion must be filed within 30 Days of receipt of the
`
`15
`
`

`

`Case 1:21-cv-00012-JNP Document 3-1 Filed 01/29/21 PageID.35 Page 18 of 34
`
`
`
`United States’ Statement of Position pursuant to the preceding Paragraph. The motion shall
`
`contain a written statement of Defendant’s position on the matter in dispute, including any
`
`supporting factual data, analysis, opinion, or documentation, and shall set forth the relief
`
`requested and any schedule within which the dispute must be resolved for orderly
`
`implementation of the Consent Decree.
`
`42.
`
`The United States shall respond to Defendant’s motion within the time period
`
`allowed by the Local Rules of this Court. Defendant may file a reply memorandum, to the extent
`
`permitted by the Local Rules.
`
`43.
`
`Standard of Review.
`
`a.
`
`Disputes Concerning Matters Accorded Record Review. Except as
`
`otherwise provided in this Consent Decree, in any dispute brought under Paragraph 39
`
`pertaining to the adequacy or appropriateness of plans, procedures to implement plans,
`
`schedules or any other items requiring approval by EPA under this Consent Decree; the
`
`adequacy of the performance of work undertaken pursuant to this Consent Decree; and all
`
`other disputes that are accorded review on the administrative record under applicable
`
`principles of administrative law, Defendant shall have the burden of demonstrating, based
`
`on the administrative record, that the position of the United States is arbitrary and
`
`capricious or otherwise not in accordance with law.
`
`b.
`
`Other Disputes. Except as otherwise provided in this Consent Decree, in
`
`any other dispute brought under Paragraph 39, Defendant shall bear the burden of
`
`demonstrating that its position complies with this Consent Decree and better further the
`
`objectives of the Consent Decree.
`
`16
`
`

`

`Case 1:21-cv-00012-JNP Document 3-1 Filed 01/29/21 PageID.36 Page 19 of 34
`
`
`
`44.
`
`The invocation of dispute resolution procedures under this Section shall not, by
`
`itself, extend, postpone, or affect in any way any obligation of Defendant under this Consent
`
`Decree, unless and until final resolution of the dispute so provides. Stipulated penalties with
`
`respect to the disputed matter shall continue to accrue from the first Day of noncompliance, but
`
`payment shall be stayed pending resolution of the dispute as provided in Paragraph 27. If
`
`Defendant does not prevail on the disputed issue, stipulated penalties shall be assessed and paid
`
`as provided in Section VII

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