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United States v. Tecumseh Products Co.

United States District Court, E.D. Wisconsin, Milwaukee Division

April 19, 2018

UNITED STATES OF AMERICA and STATE OF WISCONSIN, Plaintiffs,
v.
TECUMSEH PRODUCTS COMPANY, THOMAS INDUSTRIES, INC., and WISCONSIN PUBLIC SERVICE CORPORATION Defendants.

          JEFFREY H. WOOD, Acting Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice.

          JEFFREY A. SPECTOR Senior Attorney, GREGORY J. HAANSTAD United States Attorney Eastern District of Wisconsin.

          SUSAN M. KNEPEL Assistant United States Attorney Office of the United States Attorney.

          LORRAINE C. STOLTZFUS Assistant Attorney General Wisconsin Department of Justice.

          CATHY STEPP SECRETARY, BRAD D. SCHIMEL Attorney General.

          CONSENT DECREE WITH TECUMSEH PRODUCTS COMPANY

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         TABLE OF CONTENTS

         I. BACKGROUND ................................................................................................................. 1

         II. JURISDICTION ................................................................................................................. 3

         III. PARTIES BOUND .............................................................................................................. 3

         IV. DEFINITIONS ..................................................................................................................... 4

         V. STATEMENT OF PURPOSE ............................................................................................. 8

         VI. PAYMENTS BY SETTLING DEFENDANT .................................................................... 8

         VII. TRUSTEE-SPONSORED NATURAL RESOURCE RESTORATION PROJECTS ...... 12

         VIII. CONSERVATION EASEMENT ...................................................................................... 13

         IX. COVENANTS NOT TO SUE BY THE PLAINTIFFS ..................................................... 13

         X. RESERVATION OF RIGHTS BY THE PLAINTIFFS .................................................... 14

         XI. COVENANTS BY THE SETTLING DEFENDANT ....................................................... 16

         XII. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION ................................... 17

         XIII. NOTICES ........................................................................................................................... 19

         XIV. INTEGRATION/APPENDICES ....................................................................................... 21

         XV. EFFECTIVE DATE AND RETENTION OF JURISDICTION ....................................... 22

         XVI. CONSENT DECREE MODIFICATIONS ........................................................................ 22

         XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ..................................... 22

         XVIII. SIGNATORIES/SERVICE .............................................................................................. 23

         XIX. FINAL JUDGMENT ......................................................................................................... 23

         I. BACKGROUND

         A. The United States of America (“United States”), on behalf of the Secretary of the United States Department of the Interior (“DOI”) and the Secretary of the United States Department of Commerce (“Commerce”), and the State of Wisconsin (“Wisconsin” or the “State”), at the request of the Governor of Wisconsin and on behalf of the Wisconsin Department of Natural Resources (“WDNR”), filed a complaint in this action pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, (“CERCLA”), 42 U.S.C. § 9607.

         B. The complaint alleges that defendant Tecumseh Products Company (or “Settling Defendant”) is liable under CERCLA for damages for injury to, destruction of, or loss of natural resources resulting from the release of hazardous substances at or from the Sheboygan River and Harbor Superfund Site in Sheboygan, Wisconsin (the “Site”).

         C. Pursuant to Executive Order 12580 and the National Contingency Plan, 40 C.F.R. Part 300, DOI, through the United States Fish and Wildlife Service (“FWS”), and Commerce, through the National Oceanic and Atmospheric Administration (“NOAA”), have been delegated authority to act on behalf of the public as the Federal Trustees for natural resources impacted by the release of hazardous substances at or from the Site.

         D. The Governor of Wisconsin has designated WDNR to act as the State Trustee for natural resources impacted by the release of hazardous substances at or from the Site.

         E. The Federal Trustees and the State Trustee have formed a Trustee Council to coordinate Natural Resource Damages related activities associated with the Site.

         F. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, the United States Environmental Protection Agency (“EPA”) placed the Site on the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the Federal Register on May 21, 1986.

         G. In response to the release or threatened release of hazardous substances at or from the Site, EPA undertook response actions at the Site pursuant to Section 104 of CERCLA, 42 U.S.C. § 9604, and may undertake additional response actions in the future. In performing response actions at the Site, EPA has incurred response costs and will incur additional response costs in the future.

         H. Settling Defendant previously resolved claims asserted by the United States against it for injunctive relief and reimbursement of response costs incurred or to be incurred for response actions taken or to be taken at or in connection with the release or threatened release of hazardous substances at or from the Site pursuant to a Consent Decree for the Upper River Work on the Sheboygan River and a Consent Decree for the Lower River Work on the Sheboygan River entered in United States v. Tecumseh Products Co., et al., No. 1:03-cv-00401-WCG (E.D. Wisc.) on May 12, 2004 and August 15, 2011, respectively. These consent decrees, however, expressly reserved the United States' claim for “liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments.”

         I. Settling Defendant has entered into a Funding Reimbursement Agreement (“FRA”) with Sheboygan County (the “County”) to reimburse the County through a promissory note for $1, 295, 500 in costs the County incurred for the acquisition and preservation of certain real property associated with the proposed Amsterdam Dunes NRD project. The promissory note shall be effective upon the lodging of this Consent Decree. The FRA further required the grant of a conservation easement to be recorded by the County. The Conservation Easement, attached hereto as Appendix D, was so recorded on July 9, 2015. The Trustees are not parties to the FRA and statements contained in Paragraph 3 of the FRA regarding how the Trustees may utilize funds obtained through this settlement are not binding on the Trustees nor enforceable under this Consent Decree. A copy of the FRA between Settling Defendant and Sheboygan County is attached as Appendix E to this Consent Decree.

         J. By entry into this Consent Decree, Settling Defendant does not admit any liability to Plaintiffs arising out of the transactions or occurrences alleged in the complaint.

         K. The Parties to this Consent Decree recognize, and the Court by entering this Consent Decree finds, that this Consent Decree: (i) has been negotiated by the Parties in good faith; (ii) will avoid prolonged and complicated litigation among the Parties; (iii) will expedite natural resource protection and restoration actions to be performed by the Trustees; and (iv) is fair, reasonable, and in the public interest.

         NOW, THEREFORE, with the consent of the Parties to this Decree, 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 Sections 107 and 113(b) of CERCLA, 42 U.S.C. §§ 9607 and 9613(b). The Court also has personal jurisdiction over Settling Defendant. Solely for the purposes of this Consent Decree and the underlying complaint, Settling Defendant waives all objections and defenses that it may have to jurisdiction of the Court or to venue in this District. Settling Defendant 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 is binding upon the United States and the State, and upon Settling Defendant and its successors and assigns. Any change in ownership or corporate or other legal status, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter the status or responsibilities of Settling Defendant under this Consent Decree.

         IV. DEFINITIONS

         3. Unless otherwise expressly provided in this Consent Decree, 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:

a. “Amsterdam Dunes” shall mean the proposed Amsterdam Dunes NRD restoration project property, a legal description of which is appended to this Consent Decree as Appendix F.
b. “Amended Conservation Easement” shall mean the Amendment to the Grant of Conservation Easement attached hereto as Appendix C.
c. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675.
d. “Commerce” shall mean the United States Department of Commerce and any successor departments, agencies, or instrumentalities.
e. “Consent Decree” shall mean this Consent Decree and all appendices attached hereto (listed in Section XIV (Integration / Appendices)). In the event of conflict between this Consent Decree and any appendix, this Consent Decree shall control.
f. “Conservation Easement” shall mean the Grant of Conservation Easement attached as Appendix D hereto.
g. “County” shall mean Sheboygan County, Wisconsin.
h. “DARR Fund” shall mean NOAA's Damage Assessment and ...

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