MAINE PEOPLE'S ALLIA v. HOLTRACHEM MFG CO

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

MAINE PEOPLE’S ALLIANCE and )

NATURAL RESOURCES DEFENSE )

COUNCIL, INC., )

)

Plaintiffs, )

)

v. ) 1:00-cv-00069-JAW

)

HOLTRACHEM MANUFACTURING )

COMPANY, LLC and )

MALLINCKRODT US LLC, )

)

Defendants. )

)

CONSENT DECREE

Table of Contents

Table of Contents .......................................................................................................................... i

I.  Background ..................................................................................................................... 1

II.  Definitions ....................................................................................................................... 5

III.  Jurisdiction and Venue ................................................................................................ 17

IV.  Parties Bound, Succession, and Assignment ............................................................ 18

V.  Findings & Non-Admissions of Liability .................................................................. 19

VI.  Commitments by Mallinckrodt .................................................................................. 19

VII.  Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and

Penobscot Estuary Beneficial Environmental Projects Trust ................................. 36

VIII.  Powers and Duties of Trustees ................................................................................... 45

IX.  Cooperation and Obligations of the Parties Regarding the Trustees ................... 64

X.  Limitations on Liability and Indemnifications ......................................................... 65

XI.  Covenants ...................................................................................................................... 69

XII.  Additional Agreements Between the Parties ........................................................... 72

XIII.  Reservations of Rights ................................................................................................. 79

XIV.  Dispute Resolution ....................................................................................................... 80

XV.  Notice ............................................................................................................................. 82

XVI.  Miscellaneous Provisions ............................................................................................ 84

XVII.  Retention of Jurisdiction .............................................................................................. 90

XVIII.  Final Judgment .............................................................................................................. 90

CONSENT DECREE

I. Background

A. In 2000, Plaintiffs Maine People’s Alliance (MPA) and Natural Resources

Defense Council (NRDC), on behalf of their affected members, filed a complaint in this

matter pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.

§ 6972(a)(1)(B). Plaintiffs’ complaint alleged that Defendants Mallinckrodt US LLC

(Mallinckrodt) and HoltraChem Manufacturing Company, LLC (HoltraChem) caused

mercury discharges into the Penobscot River Estuary from a chlor-alkali plant in

Orrington, Maine, that present or may present an imminent and substantial

endangerment to health and the environment. ECF No. 1.

B. In their complaint, Plaintiffs sought, inter alia: (1) an independent,

comprehensive, scientific study to determine the nature and extent of the endangerment;

(2) an independent, comprehensive study of appropriate, effective, environmentally-

sound means to eliminate the endangerment; and (3) development and implementation

of an appropriate and effective remediation plan based on these studies. Id.

C. The Court held a liability trial in 2002 and subsequently issued a decision

and order that found that mercury in the Penobscot River may present an endangerment

to public health and the environment, held Mallinckrodt jointly and severally liable as a

source of the mercury, and ordered Mallinckrodt to fund an independent study of the

need for, feasibility of, and elements of a remediation plan for the mercury. ECF No. 147

at 22, 29-31.

D. HoltraChem dissolved as a corporate entity in 2001, and the Court entered

a default judgment holding HoltraChem jointly and severally liable with Mallinckrodt

for funding the independent study. Id. at 4 n.3, 31.

E. In 2006, the United States Court of Appeals for the First Circuit affirmed the

Court’s 2002 decision and subsequent implementing orders. ECF No. 321 at 48 (Me.

People’s All. v. Mallinckrodt, Inc., 471 F.3d 277, 298 (1st Cir. 2006)).

F. The Court-ordered independent scientific study lasted from 2005 to 2013

and proceeded in two phases, ultimately resulting in a Phase I Report, ECF No. 382, an

Update to the Phase I Report, ECF No. 480, and a Phase II Report, ECF Nos. 652-1—

652-65. It was directed by a Study Panel of three scientists: one nominated by Plaintiffs,

one nominated by Mallinckrodt, and a chairperson selected by the other two. ECF Nos.

166, 169.

G. The Phase II Report summarized and synthesized a variety of scientific

studies regarding the fate and transport of mercury in the Penobscot Estuary and the

potential risks to human health and the environment in 23 chapters spanning over 1,800

pages.

H. In 2014, the Court held a trial to hear testimony justifying and critiquing the

Study Panel’s Phase II Report and recommendations. ECF No. 829 at 1. Based on the

evidence presented, the Court issued an Order on Remediation Plan in 2015 that found

that the ongoing mercury contamination continued to create an irreparable injury to the

Estuary and present an endangerment to human health and the environment. Id. at 39,

54. The Court ordered a Phase III Engineering Study and the appointment of an

independent engineering firm to “develop cost-effective and effective remedies to clean

up the remaining mercury” and “propose potential solutions to mitigate the current harm

to the people, biota, and environment of the Penobscot River estuary.” Id. at 1, 61; see also

ECF No. 836 at 1. The Court also set out at least five factors to be used for evaluating the

engineering firm’s recommendations, including “(1) whether the proposed solution has

been successfully attempted previously or is innovative; (2) the likely cost of the

solutions; (3) the length of time to complete the recommendations; (4) the likely

effectiveness of the solution; and (5) any potential environmental harm that may be

caused by the proposed solution.” ECF No. 829 at 59.

I. To conduct the Phase III Engineering Study, the Court appointed Amec

Foster Wheeler, now known as Wood Environment & Infrastructure Solutions, Inc.

(hereinafter referred to as “Amec” for simplicity and to avoid confusion). Amec was

jointly proposed by the Parties and the Court’s Special Master following a competitive

bidding and interview process. ECF Nos. 836 at 2-3; 845.

J. Amec was charged to develop and evaluate a suite of potential remedies

and recommend to the Court a remedial plan that would be effective and cost-justified,

or explain why, in the firm’s expert judgment, there is no viable remedy. ECF No. 836 at

4-5. The engineering study generated numerous technical reports and memoranda, see

ECF Nos. 903, 944-45, 972-86, and culminated in Amec’s Phase III Engineering Study

Report in 2018, ECF Nos. 972—972-2.

K. In the Phase III Engineering Study Report, Amec presented its

recommendations for a “remedial strategy for the Estuary” based on the evaluation

criteria established by the Court. ECF No. 972 at ES-2. Amec recommended an initial suite

of remedial actions that would include a combination of capping, dredging, and long-

term monitoring, and a set of adaptive management recommendations that could include

additional dredging or the addition of clean sediment in a strategy called enhanced

monitored natural recovery (EMNR). Id. at ES-3–ES-9. Amec estimated that its proposed

initial remedies would cost about $246 to $333 million and its possible adaptive

management remedies would cost about $15 to $676 million. Id. at ES-10, 8-27–8-28. All

of Amec’s cost estimates included a broad uncertainty range such that the actual costs

might be up to thirty percent lower than the estimates or up to fifty percent higher than

the estimates. Id. at ES-9.

L. The Court’s 2015 Order preserved the Parties’ rights to object to Amec’s

recommendations and anticipated that the Court would resolve any disputes about the

proposal and its implementation. ECF No. 829 at 1-2. From late 2018 through late 2019,

the Parties took discovery from Amec related to Amec’s study, conclusions, and

recommendations. Before such discovery was complete, the Parties sought a stay of the

case to pursue settlement discussions. The Court has not yet made any final

determination regarding the recommendations set forth in Amec’s Phase III Engineering

Study Report.

M. The Parties each believe that it is in their mutual interest to resolve their

differences regarding remediation issues without further adjudication or admissions of

fact or law so as to avoid the delay, costs, and uncertainty of proceeding with litigation,

and move forward cooperatively and productively with remediation actions intended to

reduce mercury exposures and accelerate the recovery of the Penobscot River estuary. In

doing so, the Parties recognize that the Penobscot Estuary is a complex ecosystem, that

uncertainties remain even after the Court-ordered studies, that technical experts have

varying opinions regarding the remediation options for the Site, and that the remediation

measures set forth in this Consent Decree are intended to accelerate the recovery of the

Site but the benefits of the remediation measures are difficult to predict and measure with

certainty. Due in part to regional background levels of mercury and Site-specific

characteristics, the remediation actions implemented under this Consent Decree will not

necessarily reduce mercury concentrations in all species of concern at the Site, such as

ducks and lobsters, below the State of Maine’s Fish Tissue Action Level for

methylmercury of 200 nanograms per gram.

N. The Parties recognize, and the Court by entering this Consent Decree finds,

that this Decree has been negotiated by the Parties in good faith, that implementation of

the Decree is intended to accelerate the recovery of the Site and will avoid prolonged and

complicated litigation between the Parties, and that the Decree is fair, reasonable, and in

the public interest.

NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:

II. Definitions

1. Whenever terms listed below are used in this Consent Decree, the following

definitions shall apply:

a. “Amec” shall mean the engineering firm that was appointed to carry

out the Court-ordered Phase III Engineering Study, which was known at the time

as Amec Foster Wheeler Environment & Infrastructure, Inc. and subsequently

became part of Wood Environment & Infrastructure Solutions, Inc.

b. “Beneficial Environmental Projects” shall mean projects undertaken

to provide tangible environmental or public benefits to affected communities or

the environment that are intended to mitigate or offset potential adverse impact(s)

directly or indirectly caused by mercury contamination at the Site. Beneficial

Environmental Projects may include any project that (i) benefits the natural

environment of the Penobscot River estuary; (ii) improves recreational and

aesthetic enjoyment of the Penobscot River estuary; or (iii) reduces human

exposures in Maine to mercury or other neurotoxins.

c. “Beneficial Reuse” shall mean “beneficial use” as defined in Maine’s

Solid Waste Management Regulations, Code Me. R. tit. 06-096 Ch. 400, § 1(T),

and/or as used in Chapter 418 of Maine’s Solid Waste Management Regulations,

Code Me. R. tit. 06-096 Ch. 418.

d. “Beneficiary” or “Beneficiaries” shall mean, with respect to the

Remediation Trust, Mallinckrodt, NRDC, MPA, and their successors, and, with

respect to the Project Trust, Mallinckrodt, NRDC, MPA, their successors, and the

Remediation Trust.

e. “Capping” shall mean the placement of a covering or cap of clean

material over contaminated sediment that is intended to remain in place in order

to create a physical, biological, and/or chemical barrier between contaminated

sediment and the water column.

f. “Capped Funding” shall mean the maximum amount of funding

that may be provided by Mallinckrodt to the Trusts, which shall be $267 million in

the aggregate. Mallinckrodt will have no obligation to pay more than the

aggregate of the Capped Funding amounts stated in Paragraphs 10 through 15

(Orrington Reach through Trust Administrative Costs) to the Trusts.

g. “CERCLA” shall mean the Comprehensive Environmental

Response, Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9601-9675.

h. “Committed Funding” shall mean those portions of funding for the

remedial activities set forth in Paragraphs 10 through 15 (Orrington Reach through

Trust Administrative Costs) that are required to be paid by Mallinckrodt to the

Trusts.

i. “Contingent Funding” shall mean those portions of funding for the

remedial activities set forth in Paragraphs 10 through 15 (Orrington Reach through

Trust Administrative Costs) that Mallinckrodt shall be required to pay to the

Trusts only if certain contingencies occur or are encountered as set forth in

Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs).

j. “Consent Decree” shall mean this Consent Decree and all

appendices attached hereto (listed in Paragraph 70). In the event of a conflict

between the main text of this Consent Decree and any appendix, the main text of

this Consent Decree shall control.

k. “Court” shall mean the United States District Court for the District

of Maine.

l. “Day” or “Days” shall mean, unless otherwise specified, calendar

days including weekends and holidays. In the event that the date for a required

action falls on a day that is a weekend or federal holiday, the date for the required

action shall be automatically extended to the next day that is not a weekend or

federal holiday.

m. “Defendant” shall mean defendant Mallinckrodt US LLC.

n. “East Channel” shall mean the portion of the Penobscot River along

the entire eastern side of Verona Island from the northernmost tip of Verona Island

to the southernmost tip of Verona Island. It corresponds with the Verona

Northeast and Verona East Reaches as shown in Appendix E.

o. “Effective Date” shall mean the date upon which the approval of this

Consent Decree is recorded on the Court’s docket.

p. “EMNR” or “enhanced monitored natural recovery” shall mean a

remediation strategy involving the addition of clean sediment with the expectation

that tides and currents will naturally disperse the clean sediment and mix it with

contaminated sediments, thereby diluting the concentration of contaminants in

sediments.

q. “Feasible” shall mean capable of being accomplished with

reasonable professional efforts, taking into account scientific, technical, legal,

practicability, and other relevant constraints. With respect to the remedial

activities contemplated by this Consent Decree, determinations of feasibility will

be made by the Trustee of each Trust, subject to the Dispute Resolution provisions

of this Consent Decree. These determinations may take into account, among other

factors: cost; time to implement; potential benefits and risks; engineering, legal,

and permitting considerations and processes; and input from stakeholders. A

determination of feasibility does not require or imply that a harm or risk is readily

quantifiable or abatable, or that a particular increment of risk reduction or harm

abatement will occur.

r. “HoltraChem” shall mean defendant HoltraChem Manufacturing

Company, LLC and its successors and assigns.

s. “HoltraChem Site” shall mean the location of the former chlor-alkali

facility on the east bank of the Penobscot River in Orrington, Maine, which was

most recently operated by HoltraChem and is undergoing a separate cleanup

being overseen by the Maine Department of Environmental Protection. The plant

operated under several owners from 1967 through 2000, including a corporate

predecessor to Mallinckrodt.

t. “Long-Term Monitoring” shall mean the triennial monitoring

activities required by this Consent Decree that are intended to provide repeated,

readily comparable data over time regarding mercury concentrations in biota,

sediment, and water at the Site. Long-Term Monitoring does not include remedy-

specific monitoring that may be undertaken before, during, or after Work in a

particular Work Category to monitor the effects of that specific Work, which will

be designed, funded, and carried out along with other Work in the particular Work

Category.

u. “Mallinckrodt” shall mean defendant Mallinckrodt US LLC, its

successors and assigns, and any corporate parent(s) responsible for the liabilities

of Mallinckrodt US LLC. As of the Effective Date, Mallinckrodt is a subsidiary of

United States Surgical Corporation, and an affiliate of Medtronic plc, the ultimate

parent company of both entities.

v. “Mallinckrodt Related Entities” shall mean Mallinckrodt and its

corporate parents, subsidiaries, and affiliates. A Mallinckrodt Related Entity does

not include a captive insurance company or self-insurer.

w. “Mendall Marsh” shall mean the tidal portions of the north and

south branches of the Marsh River and all adjacent intertidal areas in Frankfort

and Prospect, Maine, which generally corresponds to the Mendall Marsh Reach

shown in Appendix E. Mendall Marsh includes, but is not limited to, the intertidal

and subtidal portions of the Howard L. Mendall (Marsh Stream) Wildlife

Management Area.

x. “Mobile Sediment” shall mean any mineral or organic sediment,

including wood waste, that may be mobilized and homogenized by natural

processes in the Penobscot River over timescales relevant to affect the fate and

transport of mercury within the Site. Mobile Sediment includes sediment

described as “mobile” or as components of the “mobile pool” in Chapter 7 of the

Phase II Report, ECF No. 652-43 or in the Phase III Engineering Study Report, ECF

No. 972.

y. “MPA” shall mean plaintiff Maine People’s Alliance and its

successors and assigns.

z. “Natural Resource Damage Trustees” shall mean the State of Maine

Trustees, including, but not limited to, the Maine Department of Environmental

Protection and Maine Department of Inland Fisheries and Wildlife, and Federal

Trustees, including the Department of Commerce and the Department of the

Interior.

aa.  “NRDC” shall mean plaintiff Natural Resources Defense Council

and its successors and assigns.

bb. “Orland River” shall mean the tidal portion of the Orland River, and

adjacent intertidal areas, from the head of tide at the Orland Dam to the junction

of the Orland River and the East Channel at Gross Point. It corresponds with the

Orland River Reach as shown in Appendix E.

cc. “Orrington Reach” shall mean the area defined as the Orrington

Reach in Appendix E.

dd. “Paragraph” or “¶” shall mean a portion of this Consent Decree

identified by an Arabic numeral and/or an upper- or lower-case letter and/or

lower-case Roman numeral. A reference to any Paragraph denoted by an Arabic

numeral or upper-case letter shall include any subparagraphs denoted by lower-

case letters and lower-case Roman numerals, and a reference to any subparagraph

denoted by a lower-case letter shall include any subparagraphs denoted by a

lower-case Roman numeral.

ee. “Parties” shall mean Plaintiffs MPA and NRDC and Defendant

Mallinckrodt.

ff. “Penobscot Estuary” or “Penobscot River Estuary” shall be

synonymous with the “Site,” as that term is defined herein.

gg. “Phase III Engineering Study” shall mean all the work conducted by,

and reports prepared by, Amec with respect to the Site and in fulfillment of Amec’s

appointment as the Phase III Engineering Firm.

hh. “Plaintiffs” shall mean MPA and NRDC.

ii. “Project Trust” shall mean the Penobscot Estuary Beneficial

Environmental Projects Trust, as established by this Consent Decree and the

Project Trust Agreement, the form of which is attached as Appendix C.

jj. “RCRA” shall mean the Solid Waste Disposal Act, as amended,

42 U.S.C. §§ 6901-6992, also known as the Resource Conservation and Recovery

Act.

kk. “Reach” shall mean a defined portion or component of the Site

subject to the remediation activities set forth in this Consent Decree, which portion

or component may be defined geographically (e.g., East Channel, Mendall Marsh,

Orland River, and Orrington Reach) or based on hydrodynamic, geophysical, or

other scientific bases (e.g., Mobile Sediments and Surface Deposits). The defined

portions and components of the Site included in this definition are as follows: East

Channel, Mendall Marsh, Mobile Sediments, Orland River, Orrington Reach, and

Surface Deposits.

ll. “Remaining Funding” shall mean Committed Funding for a

particular Work Category that is unused after the completion of the Work in that

Work Category, as further discussed in Paragraph 17 (Remaining Funding).

Remaining Funding does not include any Contingent Funding. Remaining

Funding also does not include Committed Funding set aside for future operation,

monitoring, and/or maintenance of Work in a Work Category until such

Committed Funding is no longer foreseeably needed for such future operation,

monitoring, and/or maintenance.

mm. “Remediation Trust” shall mean the Penobscot Estuary Mercury

Remediation Trust, as established by this Consent Decree and the Remediation

Trust Agreement, the form of which is attached as Appendix B.

nn. “Restoration Projects” shall mean a subcategory of Beneficial

Environmental Projects, the funding or Work with respect to which is used to

satisfy future potential or actual natural resource damage claims with respect to

the Site, whether such potential claims would be against Mallinckrodt or

Mallinckrodt Related Entities, in accordance with separate agreements, if any,

between the Natural Resource Damage Trustees and Mallinckrodt. Restoration

Projects may also be Tidal Marsh Projects but are not required to be Tidal Marsh

Projects.

oo. “Section” shall mean a portion of this Consent Decree identified by

an upper-case Roman numeral.

pp. “Site” shall mean the Penobscot River Estuary, which generally

includes the tidal portions of the Penobscot River from the location of the former

Veazie Dam to upper Penobscot Bay. Specifically, the Site includes each of the

Study Reaches shown in Appendix E, including any intertidal areas that fringe the

Study Reaches.

qq. “Standard of Care” shall mean the level of care and skill to be

exercised by the Trustees by and through their environmental, engineering and/or

technical consultants and contractors, and other third-party professionals in

completing all Work and Deliverables required by this Consent Decree, as defined

in Paragraph 31(b) (Standard of Care).

rr. “State” shall mean the State of Maine.

ss. “Statement of Work” or “SOW” shall mean the document describing

the Work that must be performed to implement the remediation activities at the

Site required by this Consent Decree, which is attached as Appendix A.

tt. “Study Reach” shall mean each of the portions of the Penobscot

River from the former Veazie Dam to a line between Defence Point and Perkins

Point at the northern end of Penobscot Bay, as depicted on the map in Figure 1-1

of Amec’s Phase III Engineering Study Report, ECF No. 972-1, which is attached

as Appendix E.

uu. “Surface Deposit” shall mean any subtidal or intertidal region of

Mobile Sediment accumulation, including any comingled materials or debris, that

can be identified by physical, chemical, geophysical, or other scientific methods.

Surface Deposit generally refers to the types of sediment beds described as a

“surface deposit” in the Phase III Engineering Study but does not necessarily refer

to the same spatial extent as the specific Surface Deposits delineated and identified

in the Phase III Engineering Study, which are depicted on the map attached as

Appendix F.

vv. “Tidal Marsh Projects” shall mean a subcategory of Beneficial

Environmental Projects that are reasonably anticipated to restore, enhance, or

preserve tidal marsh functions and habitat anywhere in the State of Maine. Tidal

Marsh Projects may include Work in areas adjacent to a tidal marsh that benefits

the tidal marsh, such as preservation of upland buffers to allow marsh expansion

with sea level rise or infrastructure modifications that improve or restore tidal

marsh hydrology. Tidal Marsh Projects also include projects intended to provide

benefits to avian species that use Mendall Marsh, including Nelson’s sparrows and

other tidal marsh obligate birds, regardless of whether such projects take place in

Mendall Marsh or elsewhere in Maine. Tidal marshes include all marshes in Maine

subject to periodic tidal fluctuations. Tidal Marsh Projects may also be Restoration

Projects but are not required to be Restoration Projects.

ww. “Trust” or “Trusts” shall mean the Remediation Trust and the

Project Trust, individually or collectively.

xx. “Trust Administrative Account” shall mean the account established

pursuant to Paragraph 24 (Creation of Trust Accounts), including any

subaccounts, to hold funds to be used by a Trustee to pay Trust Administrative

Costs of the respective Trust.

yy. “Trust Administrative Costs” shall mean, with respect to each Trust,

all costs, obligations, or liabilities incurred in the administration and management

of such Trust, as may be further described in the respective Trust Agreement for

each Trust.

zz. “Trust Agreement” shall mean, with respect to the Remediation

Trust, the document establishing the Remediation Trust and setting forth the

duties and obligations of Mallinckrodt and the Trustee of the Remediation Trust,

in a form substantially similar to the Remediation Trust Agreement that is attached

as Appendix B, and, with respect to the Project Trust, the document establishing

the Project Trust and setting forth the duties and obligations of Mallinckrodt and

the Trustee of the Project Trust, in a form substantially similar to the Project Trust

Agreement that is attached as Appendix C.

aaa. “Trust Parties” shall mean, collectively, the Trusts, the Trustees,

and the Trustees’ member’s shareholders, officers, directors, employees, and

managers; for the avoidance of doubt, “Trust Parties” shall not include

environmental, engineering, or technical consultants and contractors, and other

third-party professionals retained by the Trustees to assist the Trustees in carrying

out their responsibilities under this Consent Decree and the Trust Agreements.

bbb. “Trust Remediation Account” shall mean the account established

pursuant to Paragraph 24 (Creation of Trust Accounts), including any

subaccounts, to hold funds to be used by the Trustee of such Trust for Work at the

Site.

ccc. “Trustee” or “Trustees” shall mean, individually or collectively, the

trustee of the Remediation Trust and the trustee of the Project Trust, each as

designated in Paragraph 25 (Trustees) of this Consent Decree, or their successors.

ddd. “Waste Material” shall mean (1) any “hazardous substance” under

Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant

under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (3) any “solid waste”

under Section 1004(27) of RCRA, 42 U.S.C.§ 6903(27); and (4) any “hazardous

substance” under the Maine Uncontrolled Hazardous Substance Sites Law, Me.

Rev. Stat. tit. 38, §§ 1361-71.

eee. “Work” shall mean all activities and obligations the performance of

which the Remediation Trust or the Project Trust, and their respective Trustees, is

required to cause under this Consent Decree, including all remediation activities.

fff. “Work Category” or “Work Categories” shall mean, individually or

collectively, the remedial activities described in each of Paragraphs 10 through 14

(Orrington Reach through Long-Term Monitoring) to which funding is specifically

allocated.

III. Jurisdiction and Venue

2. The Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. § 1331 and 42 U.S.C. § 6972(a)(1)(B). The Court has personal jurisdiction over

the Parties. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. Solely for the

purposes of this Consent Decree and the underlying complaint, the Parties waive all

objections and defenses that they may have to jurisdiction of the Court or to venue in this

district for this matter. The Parties shall not challenge the Court’s jurisdiction to enter and

enforce a Consent Decree in this matter or the terms of this Consent Decree.

IV. Parties Bound, Succession, and Assignment

3. This Consent Decree is binding upon Plaintiffs and Mallinckrodt and their

heirs, successors, and assigns. Any change in ownership or corporate or other legal status

of Mallinckrodt including, but not limited to, any transfer of assets or real or personal

property, shall in no way alter Mallinckrodt’s responsibilities under this Consent Decree.

Mallinckrodt shall give notice within seven (7) days to the Plaintiffs and Trustees if there

is a change in its ownership or corporate or other legal status.

4. Mallinckrodt shall provide a copy of this Consent Decree to the Trustees

appointed to perform the Work required by this Consent Decree, including its

appendices, and to each person representing Mallinckrodt with respect to the Site or

the Work. The Trustees shall ensure that they and their environmental, engineering, and

technical consultants and contractors provide written notice of this Consent Decree to all

consultants, contractors, or subcontractors hired to perform any portion of the Work. Any

time a Trust or Trustee enters into a contract to fulfill its duties under this Consent Decree,

such contracts shall be conditioned upon performance of the Work in conformity with

the terms of this Consent Decree. To the extent that Mallinckrodt is required to contract

directly with any person or entity to carry out Work required by this Consent Decree,

Mallinckrodt shall ensure that its contractors and subcontractors perform the Work in

accordance with the terms of this Consent Decree.

V. Findings & Non-Admissions of Liability

5. Unless specifically stated in this Consent Decree or contained in a separate

order of the Court, nothing contained in this Consent Decree shall be considered an

admission by Mallinckrodt or by Plaintiffs, or a finding by the Court, on any issue of

material fact or law as to any matter that could have been raised regarding the potential

impacts of mercury to the Site and Penobscot River from prior operations at the

HoltraChem Site.

6. Mallinckrodt’s performance of Section IV (Parties Bound, Succession, and

Assignment), Paragraphs 3-4, Section V (Findings & Non-Admissions of Liability),

Paragraphs 5-6, Section VI (Commitments by Mallinckrodt), Paragraphs 7-20, Section VII

(Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot

Estuary Beneficial Environmental Projects Trust), Paragraphs 21-26, Section VIII (Powers

and Duties of Trustees), Paragraphs 27-42, Section IX (Cooperation and Obligations of

the Parties Regarding the Trustee), Paragraphs 43-44, and Section XI (Covenants),

Paragraphs 48-51, is restitution, remediation, or required to come into compliance with

law.

VI. Commitments by Mallinckrodt

7. Mallinckrodt agrees to create and fund the Trusts up to the Capped

Funding, consistent with the terms of this Consent Decree and the attached Trust

Agreements.

8. Geographic Scope of Work. Unless otherwise specified in this Consent

Decree or in the attached Statement of Work, the Parties and Court intend that all Work

will take place within the Site, except that facilities to support the Work may be located

in areas outside the Site boundaries, reference locations for monitoring purposes will

include locations outside the Site boundaries, and Beneficial Environmental Projects may

take place outside the Site boundaries.

9. Work and Funding. The Parties agree to the Work and funding

commitments set forth in Paragraphs 10 through 15 (Orrington Reach through Trust

Administrative Costs).

10. Orrington Reach.

a. The remediation Work in the Orrington Reach shall be capping 130

acres of intertidal sediments, primarily on the east side of the Orrington Reach.

Mallinckrodt shall fund a total of $50 million in Committed Funding to the

Remediation Trust’s Trust Remediation Account for this Work. These funds shall

be allocated to any and all Work, including remedy design, permitting,

implementation, remedy-specific monitoring, and maintenance in the Orrington

Reach. If this Work is not Feasible or if any Committed Funding remains after the

completion of the Orrington Reach Work, including after setting aside a

reasonable sum for future cap monitoring and maintenance as needed, such

Remaining Funding will be used as provided in Paragraph 17 (Remaining

Funding).

b. As a contingent obligation for the Orrington Reach, Mallinckrodt

will pay to the Remediation Trust’s Trust Remediation Account up to an

additional $10 million as Contingent Funding if the cost of capping 130 acres in

the Orrington Reach, including remedy-specific monitoring and maintenance,

exceeds $50 million. If this contingency is triggered, Mallinckrodt’s Capped

Funding amount for the Orrington Reach Work Category, including Committed

and Contingent Funding, shall be the lesser of the actual cost of the Work in the

Orrington Reach or $60 million. If the cost of the Work in the Orrington Reach is

projected to exceed $60 million, then the scope of the Work shall be altered to fit

within the Capped Funding amount, taking into account the availability, if any, of

Remaining Funding from other Work Categories.

11. Mobile Sediments and Surface Deposits.

a. The remediation Work for Mobile Sediments and Surface Deposits

will be removal of a portion of these materials from the Site. Mallinckrodt will

fund a total of $70 million in Committed Funding to the Remediation Trust’s Trust

Remediation Account for this Work consistent with the budgeting and funding

schedules established in Paragraphs 19, 34, and 35. These funds shall be allocated

to any and all Work for Mobile Sediments and Surface Deposits, including

delineation, design, permitting, any approvals needed to perform the Work,

implementation, and remedy-specific monitoring for removal of Mobile

Sediments and/or Surface Deposits. If this Work is not Feasible or if any funds

from this Committed Funding remain after the completion of Work on Mobile

Sediments and Surface Deposits, such Remaining Funding will be used as

provided in Paragraph 17 (Remaining Funding). Unless the contingency set forth

in Paragraph 11(b) is triggered or there is Remaining Funding from other Work

Categories available to supplement the funding for this Work Category, the

Trustee shall design the Work for this Work Category to fit within the Committed

Funding amount of $70 million. The Work for this Work Category may include

debris removal, dredging, backfilling, creation of access channels, construction of

landside and waterside staging and support facilities, and other reasonable

activities consistent with good engineering practices that are necessary to carry out

the safe and effective removal of Mobile Sediments and/or Surface Deposits.

b. The Parties agree that Beneficial Reuse of any sediment, debris, and

other materials removed from the Site is preferable to landfill disposal and is the

appropriate method for management of materials removed from the Site if such

Beneficial Reuse will be permissible, as determined by the granting of all necessary

permits and approvals for such reuse, and is Feasible. The Trustee shall make all

best efforts to incorporate Beneficial Reuse for all sediment, debris, and other

materials removed from the Site, including reuse in locations outside of Maine. If

after all such efforts, the Trustee determines it is not Feasible to Beneficially Reuse

all or some materials removed from the Site, the Trustee will consult with the

Parties on appropriate next steps for disposal and to discuss reasonable

alternatives. If after such discussions, landfilling the material is necessary, the

Trustee shall make all best efforts to identify the least costly means of disposal. As

a contingent obligation for Mobile Sediments and Surface Deposits, Mallinckrodt

will pay up to $50 million in Contingent Funding to the Remediation Trust’s Trust

Remediation Account for this Work Category if the Work set forth in Paragraph

11 (Mobile Sediments and Surface Deposits) is deemed Feasible but landfill

disposal is required because it is not Feasible to Beneficially Reuse some or all of

the materials removed from Mobile Sediments and Surface Deposits.

Mallinckrodt’s additional contingent financial liability shall be the actual costs

incurred for waste processing, water treatment, transportation, disposal, and other

costs necessary for landfill disposal, up to a maximum of $50 million in Contingent

Funding.

12. Orland River and East Channel around Verona Island.

a. Mallinckrodt will fund a total of $30 million in Committed Funding

to the Remediation Trust’s Trust Remediation Account for remediation Work in

the Orland River and/or East Channel. These funds shall be allocated for remedy

selection, design, implementation, and remedy-specific monitoring in these

Reaches. If this Work is not Feasible or if any funds from this Committed Funding

remain after the completion of the Work in these Reaches, such Remaining

Funding will be used as provided in Paragraph 17 (Remaining Funding).

b. Remediation Work that may be considered in these Reaches includes

EMNR, capping, and/or dredging. Such remedies may need to be coordinated or

sequenced with other remedies, such as the Mobile Sediment or Surface Deposit

removals. The Trustee shall design any remedies for these Reaches to fit within the

$30 million budget, however, Remaining Funding from other Work Categories

may be used, if available, to supplement the funding for these Reaches.

13. Beneficial Environmental Projects.

a. Mallinckrodt will fund a total of $20 million in Committed Funding

for Work on Beneficial Environmental Projects. These funds may be, but are not

required to be, used for Beneficial Environmental Projects selected in consultation

with the Natural Resource Damage Trustees. Unless there is Remaining Funding

from other Work Categories available to supplement the Committed Funding for

this Work Category, the Trustees shall recommend and fund Beneficial

Environmental Projects that fit within the $20 million in Committed Funding for

this Work Category.

b. The Committed Funding for this Work Category will be allocated to

the Trust Remediation Account of the Project Trust to fund Beneficial

Environmental Projects, including but not limited to Restoration Projects and Tidal

Marsh Projects. Any funding for this Work Category that is not yet allocated to

Beneficial Environmental Projects by the Project Trust shall be allocated to the

Trust Remediation Account of the Remediation Trust to fund Beneficial

Environmental Projects upon termination of the Project Trust, as provided in

Paragraph 33 (Termination of the Project Trust).

c. Beneficial Environmental Projects may be recommended by the

Beneficiaries or the Trustees. Decisions regarding Beneficial Environmental

Projects, including Restoration Projects, to be undertaken by the Project Trust shall

be made by following the decision-making procedures set forth in Paragraph 32

(Limit on Decisions Regarding Work by the Project Trust).

14. Long-Term Monitoring.

a. Mallinckrodt shall fund a total of $10 million in Committed Funding

to the Remediation Trust’s Trust Remediation Account to be used for Long-Term

Monitoring of the Site (including any appropriate off-Site reference areas). This

Work shall include Long-Term Monitoring at three-year intervals for a minimum

period of 30 years (through 2050-2051) and a maximum period of 45 years

(through 2065-2066).1

b. As a contingency for Long-Term Monitoring, Mallinckrodt will pay

to the Remediation Trust’s Trust Remediation Account up to $10 million in

Contingent Funding if the actual cost of Long-Term Monitoring exceeds the

Committed Funding amount for this Work Category. If this contingency is

triggered, Mallinckrodt’s Capped Funding amount for Work related to Long-Term

Monitoring, including Committed and Contingent Funding, shall be the lesser of

the actual cost of the Work or $20 million.

1 Long-Term Monitoring shall continue to take place primarily in the Spring,

Summer, and Fall, with additional monitoring of seasonally migratory species during the

immediately following Winter. The most recent such Long-Term Monitoring cycle was

in 2020-2021. Accordingly, Long-Term Monitoring will take place in 2023-2024, 2026-

2027, 2029-2030, 2032-2033, 2035-2036, 2038-2039, 2041-2042, 2044-2045, 2047-2048, and

2050-2051, and Long-Term Monitoring may take place in 2053-2054, 2056-2057, 2059-2060,

2062-2063, and/or 2065-2066.

c. Beginning in advance of the Long-Term Monitoring cycle scheduled

for 2053-2054, and triennially thereafter until Long-Term Monitoring is complete,

the Beneficiaries and Trustee of the Remediation Trust shall attempt to reach

consensus on whether to continue Long-Term Monitoring and in what form. Any

disputes will be resolved as provided in Section XIV, Paragraphs 58 through 63

(Dispute Resolution). Decisions regarding Long-Term Monitoring during this

period shall be based on factors including, but not limited to: (i) the mercury

concentrations in biota, sediments, and water at the Site; (ii) the trends in such

mercury concentrations or lack thereof; (iii) the current state of science regarding

the risks of mercury; (iv) the status of any institutional controls at the Site,

including fishery closures, and the need for monitoring related to such

institutional controls; (v) input from State and federal regulators or other

stakeholders; and (vi) the amount of Committed or Contingent Funding that

remains for this Work Category and the availability, if any, of Remaining Funding

from other Work Categories. Monitoring shall not continue for more than 30 years

if the funding for this Work Category, including Contingent Funding for this Work

Category and Remaining Funding from other Work Categories, is insufficient. If

any funds from the Committed Funding for this Work Category remain after the

completion of the Long-Term Monitoring, such Remaining Funding will be used

as provided in Paragraph 17 (Remaining Funding).

15. Trust Administrative Costs.

a. Mallinckrodt will fund a total of $7 million in Committed Funding

to pay the Trust Administrative Costs of the Remediation Trust and the Project

Trust. As a contingency, Mallinckrodt will pay up to $10 million in Contingent

Funding to pay the Trust Administrative Costs of the Remediation Trust and the

Project Trust if the aggregate Trust Administrative Costs for both Trusts exceed

the Committed Funding amount. Mallinckrodt’s Capped Funding for Trust

Administrative Costs shall be the lesser of the actual Trust Administrative Costs

or $17 million.

b. If any funds remain in the Project Trust’s Trust Administrative

Account upon termination of the Project Trust, as determined in accordance with

the Project Trust’s Trust Agreement, such funds will distributed to the

Remediation Trust’s Trust Administrative Account to be used for the Remediation

Trust’s Trust Administrative Costs.

16. Permitting and Regulatory Oversight Costs. Costs and fees incurred by

the Trusts to prepare and submit applications for permits and other regulatory approvals,

and to pay for other regulatory oversight costs, required for Work in any Work Category

shall be paid from a Trust Remediation Account using the funding allocated to that Work

Category.

17. Remaining Funding.

a. Remaining Funding, as defined in Paragraph 1(ll), will be used

preferentially to supplement the funding for Work in other Work Categories

described in Paragraphs 10 through 13 (Orrington Reach through Beneficial

Environmental Projects) undertaken by the Remediation Trust. Such Remaining

Funding may be used, inter alia, to make up any funding shortfalls for Work in

other Work Categories, to fund additional remedy-specific monitoring or adaptive

management, or to allow the scope of Work in other Work Categories to be

expanded. The Trustee for the Remediation Trust shall determine when Work in

each Work Category is complete and shall recommend any reallocation(s) of

Remaining Funding, in consultation with the Beneficiaries of the Remediation

Trust. Any Remaining Funding will be allocated to and expended by the

Remediation Trust and will not be available to the Project Trust, however, the

Trustees may coordinate Work between the Trusts if appropriate and if such

coordination would not affect the tax treatment of either Trust, and subject to

notice to, comment from, and opportunity for objection by the Beneficiaries.

b. After all Work at the Site is complete, or after sufficient funds are

reserved to ensure the completion of all Work at the Site, any Remaining Funding

will be used for and allocated to Beneficial Environmental Projects undertaken by

the Remediation Trust. Any such Beneficial Environmental Projects will be

proposed by the Beneficiaries or Trustee of the Remediation Trust, subject to the

decision-making procedures set forth in Paragraph 31 (Decisions Regarding Work

and Deliverables).

18. Capped Funding. Mallinckrodt’s financial obligations under this Consent

Decree will not exceed $267 million, including no more than $187 million in Committed

Funding, and no more than $80 million in Contingent Funding. Upon Mallinckrodt’s

complete funding of the Remediation Trust and the Project Trust as set forth in

Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs),

including the distribution of any remaining Project Trust funds into the Remediation

Trust upon termination of the Project Trust, and upon compliance with all other

obligations imposed by this Consent Decree, Mallinckrodt’s liability under this Consent

Decree shall be satisfied.

19. Initial Funding of the Trusts.

a. Within 20 days after execution of the Remediation Trust Agreement,

Mallinckrodt will pay to the Remediation Trust $9.5 million to be allocated as

follows: $9 million to the Trust Remediation Account and $500,000 to the Trust

Administrative Account.

b. Within 20 days after execution of the Project Trust Agreement,

Mallinckrodt will pay to the Project Trust $500,000 to be allocated as follows:

$450,000 to the Trust Remediation Account for Beneficial Environmental Projects

and $50,000 to the Trust Administrative Account, unless another allocation is

agreed upon by the Parties, after consulting with the Project Trust prior to

establishment of the Trusts.

c. On or before December 31, 2022, Mallinckrodt will pay to the Trusts

an additional aggregate amount of $15 million.

d. On or before December 31 in the years 2023 through 2027,

Mallinckrodt will pay to the Trusts an aggregate amount of $25 million each year,

unless additional funds are needed to satisfy Work and a request for such

additional funds is made pursuant to Paragraph 35 (Financial Forecasts and

Invoices to Mallinckrodt).

e. On or before December 31, 2028, Mallinckrodt will pay to the

Trusts an aggregate amount that will fully satisfy Mallinckrodt’s obligations for

Committed Funding.

f. The Trustees shall provide annual budget forecasts for each Trust to

the Parties as provided in Paragraphs 34 (Decisions Regarding Annual Budgets,

Work Plans, and Cash Flow Projections) and 35 (Financial Forecasts and Invoices

to Mallinckrodt). The Trustee of each Trust shall invoice Mallinckrodt as provided

in Paragraph 35 (Financial Forecasts and Invoices to Mallinckrodt).

20. Financial Assurance.

a. In order to ensure adequate funding of the Trusts, Mallinckrodt shall

secure financial assurance, in the form of a surety bond, initially in the aggregate

amount of $65 million, for the benefit of the Trusts. The surety bond guaranteeing

payment for the Work will be issued by a surety company among those listed as

acceptable sureties on federal bonds as set forth in Circular 570 of the U.S.

Department of the Treasury and will be substantially in the form attached hereto

as Appendix D.

b. The Parties have selected, and the Trustee of the Remediation Trust

and Plaintiffs have found satisfactory, a surety bond as the initial form of financial

assurance. Within 60 days after the Effective Date, Mallinckrodt shall secure all

executed and/or otherwise finalized mechanisms or other documents consistent

with the approved form of financial assurance and shall submit such mechanisms

and documents to the Trustee of the Remediation Trust and to Plaintiffs as

specified in Paragraph 64 (Notice).

c. If the difference between the aggregate Capped Funding and the

total funding previously paid into both Trusts becomes less than $65 million, then

from that time forward the amount of the surety bond shall be adjusted annually

to be sufficient to ensure payment to the Trusts of the difference between the

aggregate Capped Funding amount and the total funding previously paid into

both Trusts.

d. Adequacy of Financial Assurance. Mallinckrodt and the Trustee of

the Remediation Trust shall diligently monitor the adequacy of the financial

assurance. If Mallinckrodt becomes aware of any information indicating that the

financial assurance provided under Paragraph 20 is inadequate, will be cancelled,

or otherwise no longer satisfies the requirements of Paragraph 20, Mallinckrodt

shall notify Plaintiffs and the Trustees of such information in writing within ten

(10) business days. If the Trustees and/or Plaintiffs determine that the financial

assurance provided under Paragraph 20 is inadequate or otherwise no longer

satisfies the requirements of Paragraph 20, Plaintiffs or the Trustees will notify in

writing Mallinckrodt and the Trustees or Plaintiffs of such determination within

ten (10) business days. Within thirty (30) days after any Party or the Trustees

notifies the other Parties and/or Trustees of such a determination, the Parties and

the Trustees shall meet and confer to attempt to reach agreement on a revised or

alternative financial assurance mechanism(s). If the Parties and Trustees cannot

reach agreement, they shall follow the Dispute Resolution provisions of this

Consent Decree. If the Parties and Trustees agree on a revised or alternative

financial assurance mechanism(s), Mallinckrodt shall, within thirty (30) days after

such agreement, secure and submit such mechanism(s) and documents to the

Trustees and Plaintiffs as specified in Paragraph 64 (Notice). Mallinckrodt shall

follow the procedures of Paragraph 20(f) (Modification of Financial Assurance) in

seeking approval of, and submitting documentation for, the revised or alternative

financial assurance mechanism.

e. Drawdown. The Trustees shall have authority to require or demand

a drawdown of the financial assurance in the circumstances and up to the amounts

listed in subparagraphs 20(e)(i)-(iv) below.

i. If Mallinckrodt fails to make a required payment to a Trust

within thirty (30) days of an Invoice Due Date, then the Trustee of such

Trust has the authority to require a drawdown of the financial assurance

mechanism(s) in an amount equal to 100% of the unpaid Invoice Amount

for the Trust.

ii. If Mallinckrodt fails to perform any obligation under the

terms of Paragraph 20 (Financial Assurance) and does not cure such failure

within thirty (30) days of the Remediation Trust’s Trustee providing notice

of such failure, then within sixty (60) days after notice of such failure, the

Parties and the Trustees shall meet and confer to attempt to reach

agreement on the amount to be drawn down from the financial assurance

mechanism(s). If the Parties and Trustees cannot reach agreement, they

shall follow the Dispute Resolution provisions of this Consent Decree.

iii. In the event of a notice of Mallinckrodt or its ultimate

corporate parent (i) discontinuing business, (ii) applying for or consenting

to the appointment of a receiver, a custodian, a trustee, an interim trustee,

or liquidator of all or a substantial part of its assets, (iii) being adjudicated

a debtor or having entered against it an order for relief under Title 11 of the

United States Code, as the same may be amended from time to time, (iv)

filing a voluntary petition in bankruptcy or filing a petition or an answer

seeking reorganization or an arrangement with creditors or seeking to take

advantage of any other law (whether federal or state) relating to relief of

debtors, or admitting (by answer, by default or otherwise) the material

allegations of a petition filed against it in any bankruptcy, reorganization,

insolvency or other proceeding (whether federal or state) relating to relief

of debtors, (v) suffering or permitting to continue unstayed and in effect for

thirty (30) consecutive days any judgment, decree, or order entered by a

court of competent jurisdiction that approves a petition seeking its

reorganization or appoints a receiver, custodian, trustee, interim trustee, or

liquidator of all or a substantial part of its assets, or (vi) taking any action

in order thereby to effect or authorize any of the foregoing, or omitting to

take any action in order to prevent any of the foregoing, in such event each

Trustee has the authority to require a drawdown of any financial assurance

up to an aggregate amount equal to the sum of all not-yet-invoiced

Committed Funding plus all not-yet-invoiced Contingent Funding for

which the contingency’s triggering condition has been met.

iv. If a Trustee is notified by Mallinckrodt or by the issuer or

guarantor of a financial assurance mechanism that the issuer or guarantor

intends to cancel the mechanism, and if Mallinckrodt fails to provide an

alternative financial assurance mechanism in accordance with this

Paragraph 20 at least thirty (30) days prior to the cancellation date, the

Trustees are authorized to require that the funds guaranteed under such

mechanism must be paid to the Trusts prior to cancellation. The Trustees

shall take any actions necessary to secure such payment before the

mechanism is cancelled.

f. Modification of Financial Assurance. To the extent that

Mallinckrodt, a Plaintiff, or the Trustee of the Remediation Trust desires to change

the amount(s) or mechanism(s) of the financial assurance, including

discontinuance of the surety bond set forth in Paragraph 20, such Party or Trustee

may submit a proposal to the other Parties and Trustee in accordance with

Paragraph 64 (Notice), which must include a description of the proposed changes

to the financial assurance mechanism(s) and/or amount(s) and a justification for

the proposed changes. The Parties and the Trustee of the Remediation Trust shall

meet and confer to attempt to reach agreement on any such proposal. If the Parties

and Trustee cannot reach agreement, they shall follow the Dispute Resolution

provisions of this Consent Decree. Mallinckrodt may modify the financial

assurance mechanism(s) and amount(s) only in accordance with: (i) the provisions

of this Paragraph 20(f); (ii) the Trustee’s and Plaintiffs’ agreement; or (iii) if there

is a dispute, the agreement or final decision resolving such dispute under

Paragraphs 58 through 63 (Dispute Resolution). Within thirty (30) days after the

agreement of the Trustee and Plaintiffs to, or a decision resolving a dispute relating

to, any requested modifications pursuant to this Paragraph, Mallinckrodt shall

secure all executed and/or otherwise finalized mechanisms or other documents

consistent with the modified amount(s) and/or mechanism(s) of financial

assurance and shall submit such mechanisms and documents to the Trustee and

Plaintiffs as specified in Paragraph 64 (Notice).

g. Release, Cancellation, or Discontinuation of Financial Assurance.

Mallinckrodt may release, cancel, or discontinue any financial assurance provided

under this Paragraph only: (i) with the agreement of Plaintiffs and the Trustees;

(ii) upon the completion of the Work required by this Consent Decree and the

termination of the Trusts; (iii) upon aggregate funding into the Trusts of an

amount equal to the aggregate Capped Funding amount; or (iv) if there is a dispute

regarding the release, cancellation, or discontinuance of any financial assurance,

in accordance with the agreement or final decision resolving such dispute under

Paragraphs 58 through 63 (Dispute Resolution) if such agreement or final decision

allows for such release, cancellation, or discontinuation of the financial assurance.

h. Mallinckrodt’s obligation to provide financial assurance consistent

with this Paragraph 20 shall not limit Mallinckrodt’s liability under this Consent

Decree to the financial assurance it provides.

VII. Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and

Penobscot Estuary Beneficial Environmental Projects Trust

21. Objectives of the Parties. The Parties agree that Mallinckrodt shall create

two separate trusts, the Penobscot Estuary Mercury Remediation Trust (the Remediation

Trust) and the Penobscot Estuary Beneficial Environmental Projects Trust (the Project

Trust). Both Trusts shall be independent entities that, collectively, will hold the

remediation funds and carry out the Work provided for in this Consent Decree. The

Remediation Trust will be managed by a Trustee as set forth in this Consent Decree and

the attached form of the Remediation Trust Agreement. The Project Trust will be

managed by a Trustee as set forth in this Consent Decree and the attached form of the

Project Trust Agreement.

22. Creation and purpose of the Remediation Trust.

a. Not later than ten (10) days after the Effective Date of this Consent

Decree, and simultaneously with receipt of the initial payment to the Trust

Accounts under Paragraph 19 (Initial Funding of the Trusts), the Remediation

Trust shall be established. The Remediation Trust shall be funded as specified in

Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and

Invoices to Mallinckrodt).

b. As provided in this Consent Decree and in the attached Statement of

Work and form of the Remediation Trust Agreement, the purpose of the

Remediation Trust shall be to hold the remediation funds, other than those held

by the Project Trust, provided by this Consent Decree, and, consistent with its

fiduciary obligations to the Beneficiaries of the Remediation Trust and to the extent

of available funding in the Trust Administrative Account and/or Trust

Remediation Account, carry out administrative functions related to the Trust’s

operations, and develop, oversee, fund, and implement all Work at the Site in the

Work Categories, pay future oversight costs and other costs as provided herein,

and carry out Long-Term Monitoring at the Site. Pursuant to this Consent Decree

and the attached form of the Remediation Trust Agreement, the Remediation

Trust, as appropriate, shall contract with environmental, engineering, and

technical consultants, contractors, and other third-party professionals to assist the

Trustee in carrying out the activities necessary to achieve the purposes of the

Consent Decree, and the Remediation Trust, as appropriate, shall be the entity that

seeks all regulatory permits and approvals for Work required under Work

Categories by this Consent Decree and the attached Statement of Work.

c. The Remediation Trust and its Trustee shall not and are not

authorized to engage in any trade or business with respect to the Trust assets or

any proceeds therefrom except as and to the extent the same is deemed in good

faith by the Trustee to be reasonably necessary or proper for the conservation or

protection of the Trust assets or the fulfillment of the purposes of the Remediation

Trust.

d. The Remediation Trust is intended to be a qualified settlement fund

(“QSF”), for which no grantor trust election has been made, pursuant to Section

468B of the Internal Revenue Code of 1986, as amended (the “Code”), and related

Treasury Regulations. The Remediation Trust and its Trustee shall not take any

actions that would cause the Remediation Trust to fail to qualify as a QSF or fail

to take any actions necessary to cause the Remediation Trust to qualify as a QSF.

e. The Remediation Trust is intended to be governed by the terms of

this Consent Decree and the attached form of the Remediation Trust Agreement

and shall not be subject to any provision of the Uniform Custodial Trust Act as

adopted by any state, now or in the future.

23. Creation and purpose of the Project Trust.

a. Not later than ten (10) days after the Effective Date of this Consent

Decree, and simultaneously with receipt of the initial payment to the Trust

Accounts under Paragraph 19 (Initial Funding of the Trusts), the Project Trust shall

be established. The Project Trust shall be funded as specified in Paragraphs 19

(Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to

Mallinckrodt).

b. As provided in this Consent Decree and in the attached Statement of

Work and form of the Project Trust Agreement, the purpose of the Project Trust

shall be to hold remediation funds for Beneficial Environmental Projects as

provided by this Consent Decree, and, to the extent of available funding in the

Trust Administrative Account and/or Trust Remediation Account as appropriate,

carry out administrative functions related to the Trust operations, and oversee,

fund, and implement Beneficial Environmental Projects funded under Paragraph

13 (Beneficial Environmental Projects), including all Restoration Projects, pay costs

as provided herein, and provide funding to the Remediation Trust as provided

herein. The Project Trust, as appropriate, shall contract with environmental,

engineering, and technical consultants, contractors, or other third-party

professionals to assist the Trustee in carrying out the activities necessary to achieve

the purposes of the Consent Decree relating to Beneficial Environmental Projects,

and the Project Trust, as appropriate, shall be an entity that seeks regulatory

permits and approvals for Work required under Beneficial Environmental Projects

by this Consent Decree and the attached Statement of Work except that

Mallinckrodt shall be responsible for any agreement(s) with the Natural Resource

Damage Trustees.

c. The Project Trust and its Trustee shall not and are not authorized to

engage in any trade or business with respect to the Trust assets or any proceeds

therefrom except as and to the extent the same is deemed in good faith by the

Trustee to be reasonably necessary or proper for the conservation or protection of

the Trust assets or the fulfillment of the purposes of the Project Trust.

d. Upon a determination by the Project Trust’s Trustee, in consultation

with the Beneficiaries, all in accordance with the process set forth in Paragraph 33

(Termination of the Project Trust), that the Site and the Beneficiaries are not

reasonably likely to benefit from funding or implementing a future Restoration

Project and all Work on Restoration Projects previously funded and implemented

by the Project Trust is complete, the Project Trust shall be terminated and any then

remaining Trust assets shall be distributed to the Remediation Trust, all in

accordance with Paragraph 33 (Termination of the Project Trust).

e. The Project Trust is intended to be governed by the terms of this

Consent Decree and the attached form of the Project Trust Agreement and shall

not be subject to any provision of the Uniform Custodial Trust Act as adopted by

any state, now or in the future.

24. Creation of Trust Accounts.

a. The Trustees shall create a Trust Remediation Account for each

Trust. In its discretion, each Trustee may create subaccounts within the Trust

Remediation Account, provided however, that the Trustee of the Remediation

Trust shall at least create a subaccount within the Trust Remediation Account for

each Work Category and shall allocate funding paid to the Remediation Trust’s

Trust Remediation Account between the Work Categories in accordance with the

allocation stated on the invoice to which the funding relates. The purpose of the

Trust Remediation Accounts shall be to provide funding and proceeds for Work

as selected, approved, and authorized pursuant to the terms of this Consent

Decree, attached Statement of Work, and such Trust’s Trust Agreement.

b. The Trustees shall create a separate Trust Administrative Account

for each Trust to hold the funds provided by Paragraph 15 (Trust Administrative

Costs). The funds in a Trust’s Trust Administrative Account shall be used by the

Trustee to fund such Trust’s Trust Administrative Costs as approved and

authorized pursuant to the terms of this Consent Decree and such Trust’s Trust

Agreement.

c. Assets of each Trust shall be held in trust solely for these purposes

subject to any reallocation in accordance with the terms of this Consent Decree and

such Trust’s Trust Agreement.

d. Pursuant to each Trust’s respective Trust Agreement, each Trustee

shall have the ability to engage an investment manager and to invest and reinvest

the principal and income of such Trust’s assets in investments that are reasonably

calculated to preserve the principal value, taking into account the need for the

safety and liquidity of principal as may be required to fund the Work and costs of

administration of such Trust and as further limited by such Trust’s Trust

Agreement. Any and all earnings, interest, and other investment income realized

on the investment of a Trust’s assets held in a Trust Account shall be retained in

the respective Trust Account and used only for the same purposes as the principal

in that account as provided in such Trust’s Trust Agreement and this Consent

Decree, provided, however, that the Trustee shall first deduct from any income

realized an amount equal to the estimated taxes owed on such income and costs

associated with investment of such Trust’s assets to which such income relates, all

as in accordance with the Trust’s Trust Agreement, and deposit that sum into the

Trust Administrative Account of such Trust to be used to pay such taxes and costs.

The Trustee of the Trusts shall be solely responsible for the investment of the

Trusts’ assets in accordance with these guidelines. Mallinckrodt shall have no

responsibility for, interest in, or liability whatsoever with respect to investment

decisions or the actions of a Trustee, or any transactions executed by a Trustee,

and such actions, decisions, or transactions shall in no event increase

Mallinckrodt’s financial obligations as set forth in Paragraph 18 (Capped

Funding). Mallinckrodt and Plaintiffs shall have no responsibility for or liability

whatsoever with respect to any investment or tax decisions, actions, transactions,

or inactions of a Trustee.

25. Trustees.

a. The Court hereby approves the selection and appointment of

Greenfield Penobscot Estuary Remediation Trust LLC, not individually, but solely

in its representative capacity as Trustee, to be the Trustee of the Remediation Trust

to administer and manage the Remediation Trust and the Remediation Trust’s

Trust Accounts, to implement the Work at the Site, and to fulfill all other

responsibilities set forth in this Consent Decree, the attached Statement of Work,

and the Remediation Trust Agreement executed by the Parties and Trustee

substantially in the form attached hereto as Appendix B.

b. The Court hereby approves the selection and appointment of

Greenfield Penobscot Estuary Project Trust LLC, not individually, but solely in its

representative capacity as Trustee, to be the Trustee of the Project Trust to

administer and manage the Project Trust and the Project Trust’s Trust Accounts,

to oversee Work on Beneficial Environmental Projects, and to fulfill all other

responsibilities set forth in this Consent Decree, the attached Statement of Work,

and the Project Trust Agreement executed by the Parties and Trustee substantially

in the form attached hereto as Appendix C.

c. One entity, or affiliated entities, may serve as the Trustee of both

Trusts. If at any point the functions of the Trustee for each Trust are assigned to

separate entities, the Trustees shall enter into such contracts or agreements as are

necessary to coordinate the documentation, activities, and invoices set forth in this

Consent Decree and the Trust Agreements.

d. The Trustees shall be appointed for an initial term of ten (10) years.

The Trustees may resign or be terminated in accordance with the procedures set

forth in the respective Trust’s attached form of the Trust Agreement. Any

successor Trustee of a Trust shall be jointly proposed by the Beneficiaries and

appointed by the Court. If the Beneficiaries cannot agree on a successor Trustee

for a Trust, a successor Trustee shall be appointed by the Court at the conclusion

of the Dispute Resolution procedures of this Consent Decree.

26. Designation of Beneficiaries; Advisory Committee.

a. The Beneficiaries of each Trust shall be the sole beneficiaries of each

such Trust and such Trust’s Trust Accounts.

b. Each Trustee shall, on behalf of the Trust for which it is appointed,

create an informal Advisory Committee composed of representatives of the

Beneficiaries, including at least one representative for Plaintiffs and one

representative for Mallinckrodt. The role of any such Advisory Committee shall

be to (i) facilitate dialogue between the Trustee and Beneficiaries of such Trust,

(ii) seek to build consensus among the Beneficiaries, (iii) coordinate Work by the

two Trusts, including facilitating dialogue between the Trustees of the Trusts and

seeking to build consensus regarding transfer of the Project Trust’s assets, and

related liabilities, to the Remediation Trust upon termination of the Project Trust,

and (iv) provide informal consultation to the Trust’s Trustee regarding

management of such Trust and execution of the Work required by this Consent

Decree. The Advisory Committees shall not have any formal approval or decision-

making authority. A Trust’s Advisory Committee shall meet at the request of its

Trustee, on a schedule and by means that are mutually agreeable to the

Beneficiaries and Trustee. If requested by the Trustee, each Beneficiary and the

other Trust shall designate one or more representatives to the Advisory

Committee, each of whom may be an employee, attorney, consultant, or Trustee

for the Beneficiary or other Trust. Consistent with Paragraph 50, Plaintiffs and

Mallinckrodt shall not make any claim to the Trusts for, and the Trusts shall not

pay to any Plaintiff or Mallinckrodt, such Party’s fees or costs for participation in

an Advisory Committee.

VIII. Powers and Duties of Trustees.

27. Each Trust’s Trustee shall manage such Trust to fulfill and carry out such

Trust’s purposes set out in this Consent Decree and in such Trust’s attached form of its

Trust Agreement. The Trustees shall use each Trust Remediation Account and Trust

Administrative Account only for the purposes for each account set out in this Consent

Decree and in the respective Trust’s attached form of its Trust Agreement. In

implementing the terms of the Consent Decree, in executing the terms of the Trusts, and

in resolving any disputes, the Trustees must consider as paramount the interests of the

Penobscot River Estuary, including the River itself, its flora and fauna, and its nearby

inhabitants.

28. Remediation Trust QSF Duties. The Trustee of the Remediation Trust shall

at all times seek to have the Trust and the Trust Accounts treated as a QSF for which no

grantor trust election has been made. For purposes of complying with Section 468B(g)(2)

of the Internal Revenue Code, this Consent Decree shall constitute a consent decree

between the Parties. Approval of the Court shall be sought, and the Court shall retain

continuing jurisdiction over the Trust and the Trust Accounts sufficient to satisfy the

requirements of Treasury Regulation section 1.468B-1. The Trustee will not elect to have

the Trust treated as a grantor trust. The Trust shall be treated as a separate taxable entity.

The Trustee shall cause taxes, if any, imposed on the earnings or holdings in any Trust

Account to be paid out of such earnings or holdings and shall comply with all tax

reporting and withholding requirements imposed on the Trust under applicable tax laws.

The Trustee shall be the “administrator” of the Trust pursuant to Treasury Regulation

section 1.468B2(k)(3).

29. Project Trust’s Restoration Project Duties. The Parties intend that Work

related to any Restoration Project be performed in a manner consistent with the

conditions and obligations set forth in any applicable separate agreement between

Mallinckrodt and the Natural Resource Damage Trustees to which such Restoration

Project relates.

30. Decision-making Generally. It is the intent of the Parties that the Trustee

of each Trust will carry out such Trust’s Work required by this Consent Decree with

limited need for input or oversight from the Parties. Accordingly, except as otherwise

specifically provided in this Consent Decree, the recommendations of the Trustee

regarding budgeting, financial, and remediation Work issues are presumptively

approved unless a Party, as a Beneficiary of such Trust, objects through the procedures

set forth in this Consent Decree.

31. Decisions Regarding Work and Deliverables.

a. The Trustee of a Trust, assisted by environmental, engineering, and

technical consultants, contractors, and other third-party professionals as needed,

shall ensure the preparation of all appropriate work plans, schedules, design

documents, contracts, permit applications, and other deliverables (collectively, the

“Deliverables”) necessary to carry out the Work of such Trust required by this

Consent Decree and the attached Statement of Work. Each Trustee shall provide

draft and final copies of the Deliverables to the Trust’s Beneficiaries as detailed in

the attached Statement of Work.

b. Standard of Care. The Deliverables, and all Work at the Site

pursuant to this Consent Decree, shall be completed in a professional manner and

in accordance with the level of care and skill ordinarily exercised by similar

members of the profession performing similar services and practicing under

similar conditions using generally accepted environmental principles and best

professional practices. All services and products provided by a Trustee, or its

contractor or subcontractor, shall be fit for the intended purposes and shall reflect

the best professional knowledge and judgment of the Trustee.

c. The Beneficiaries may provide comments on the draft versions of the

Deliverables to the Trustee, within a timeframe specified by the Trustee that is

appropriate for each particular Deliverable but not less than ten (10) business days.

If a Beneficiary wishes to object to any element of any Deliverable, that Beneficiary

shall initiate the Dispute Resolution process provided by this Consent Decree and,

in doing so, the Beneficiary shall identify with specificity the element(s) of the

Deliverable to which it objects.

d. A Beneficiary’s objection or the pendency of dispute resolution

procedures shall not delay or stay any Work of a Trust unless a delay or stay is

mutually agreed to by the Beneficiaries or ordered by the Court (including by a

Magistrate Judge during Dispute Resolution). In deciding whether a stay is

appropriate, the Beneficiaries shall consider, among other factors, the underlying

remedial purposes of the Consent Decree and whether a stay would result in a

Trust, its Trustee, or any of its contractors or subcontractors being in breach of

contract and shall seek to avoid any such breaches of contract. A dispute about a

severable element of a Deliverable shall not delay or prevent implementation of

other elements of the Deliverable during the pendency of the dispute. Subject to

the Dispute Resolution provisions of this Consent Decree, the Trustee, after

consultation with the Beneficiaries, shall determine whether elements of a

Deliverable are severable.

e. Except as provided in the Dispute Resolution provisions of this

Consent Decree or in other specific provisions of this Consent Decree, no

additional action or approval by the Court or any Party or Beneficiary is required

for a Trustee to carry out the Work required by this Consent Decree and attached

Statement of Work.

32. Limit on Decisions Regarding Work by the Project Trust.

a. The Trustee of the Project Trust shall recommend Beneficial

Environmental Projects to be funded and implemented by the Project Trust, and

each of the Beneficiaries may propose Beneficial Environmental Projects to the

Trustee. Mallinckrodt shall notify the Trustee and other Beneficiaries if a proposed

project qualifies as a Restoration Project. For projects that qualify as a Restoration

Project, the Trustee shall propose to fund such project in the Project Trust’s budget

and work plans unless such project would violate a provision of this Consent

Decree and subject to any Beneficiary’s right to comment on or object to the project

or its budget or work plans. In determining what projects to recommend and fund

as Beneficial Environmental Projects, the Trustee shall consider, among other

factors, whether the project was recommended by a Beneficiary, the requirements

of Paragraph 13 (Beneficial Environmental Projects), and the funding schedule

established in Paragraph 32(b).

b. The Trustee of the Project Trust shall make all Feasible efforts to fully

allocate or commit the funding provided in Paragraph 13 for the Beneficial

Environmental Projects Work Category within four (4) years after the Effective

Date, although the Work to implement such projects may continue after that time.

It is the intent of the Parties and the Court that, if Feasible, the funding provided

in Paragraph 13 (Beneficial Environmental Projects) shall be fully committed or

spent within six (6) years after the Effective Date, except for any funds reserved

for operations, maintenance, or monitoring related to a Beneficial Environmental

Project. The time limits in this Paragraph for allocating and spending funding may

be modified or waived by agreement of the Parties or extended as necessary and

appropriate to Feasibly implement the Beneficial Environmental Projects Work

Category, as recommended by the Trustee of the Project Trust subject to comment

or objection by the Parties. The Trustee of the Project Trust shall not delay the

recommendation, selection, funding, and implementation of Beneficial

Environmental Projects on account of Mallinckrodt’s efforts to secure agreements

with the Natural Resource Damage Trustees regarding Restoration Projects if such

delay would jeopardize the Project Trust’s ability to meet the timelines set forth in

this subparagraph.

c. With respect to Beneficial Environmental Projects that may qualify

as Restoration Projects:

i. Mallinckrodt is solely responsible for coordination and

negotiation with the Natural Resource Damage Trustees regarding

Restoration Projects and for timely obtaining agreements, if any, with the

Natural Resource Damage Trustees regarding Restoration Projects. The

Trustee of the Project Trust shall work in good faith with Mallinckrodt to

successfully implement Restoration Projects and shall supply all

information reasonably requested by Mallinckrodt in negotiating with the

Natural Resource Damage Trustees regarding Restoration Projects.

ii. The Natural Resource Damage Trustees are not parties to this

Consent Decree and this Consent Decree does not create, extinguish, or alter

any rights, duties, or obligations of the Natural Resource Damage Trustees.

This Consent Decree does not require any action by, impose any duties or

procedures on, or in any way constrain the discretion of, the Natural

Resource Damage Trustees. References to the Natural Resource Damage

Trustees in this Consent Decree are solely to acknowledge the possibility of

voluntary interactions between Mallinckrodt and the Natural Resource

Damage Trustees with respect to the Project Trust and the Beneficial

Environmental Projects implemented thereby. The Project Trust shall not

be obligated to directly negotiate with the Natural Resource Damage

Trustees, and fulfillment of the Project Trust’s purpose is not contingent on

it undertaking any Restoration Projects.

d. The Trustee shall deliver copies of each Beneficial Environmental

Project recommendation, including details relating to the cost, Work, whether

such Beneficial Environmental Project will be used to satisfy a separate agreement

with Natural Resource Damage Trustees, and reasons for recommendation of the

Beneficial Environmental Project, to the Beneficiaries. The Beneficiaries may

comment on or object to the Beneficial Environmental Project recommendation

within a timeframe that is specified by the Trustee that is appropriate for analysis

of such recommendations, but not less than thirty (30) days. Within ten (10)

business days of selecting a Beneficial Environmental Project for funding and

implementation, the Trustee shall notify the Beneficiaries. If a Beneficiary wishes

to object to the funding and implementation of a Beneficial Environmental Project,

that Beneficiary shall initiate the Dispute Resolution process provided by this

Consent Decree and, in doing so, the Beneficiary shall identify with specificity the

element(s) of the project to which it objects.

e. A Beneficiary’s objection or the pendency of dispute resolution

procedures with respect to a Beneficial Environmental Project shall not delay or

stay any funding or Work on such project unless a delay or stay is mutually agreed

to by the Beneficiaries or ordered by the Court (including by a Magistrate Judge

during Dispute Resolution). In deciding whether a stay is appropriate, the

Beneficiaries shall consider, among other factors, the underlying remedial

purposes of the Consent Decree and whether a stay would result in the Trust, its

Trustee, or any of its contractors or subcontractors being in breach of contract and

shall seek to avoid any such breaches of contract.

33. Termination of the Project Trust.

a. Upon the fifth (5th) anniversary of the Effective Date and annually

thereafter, the Trustee of the Project Trust, in consultation with the Project Trust’s

Advisory Committee, shall review and analyze the extent, if any, of Work

outstanding on current Restoration Projects and the likelihood of any future

Restoration Projects. The Trustee shall prepare in these years, to be delivered with

the annual budgets, work plans, and cash flow projections set forth in Paragraph

34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow

Projections), a forecast of when the Trustee reasonably expects all Work on

Restoration Projects to be completed with no future Restoration Projects

foreseeable.

b. In any year in which the Trustee of the Project Trust, in consultation

with the Advisory Committee, determines that the Site and Beneficiaries are not

reasonably likely to benefit from funding or implementing a future Restoration

Project and that all Work on Restoration Projects previously funded and

implemented under the Project Trust is complete, the Trustee shall deliver its

determination to the Beneficiaries of the Project Trust, which shall include the

reasoning for such determination, a statement of the Trust assets currently held in

its Trust Accounts, the status of any Beneficial Environmental Projects with Work

still outstanding, and the Trustee’s proposal for a timeline to terminate the Project

Trust and the extent of any Beneficial Environmental Projects that are proposed to

be transferred to the Remediation Trust.

c. The Beneficiaries may provide comments on this proposed timeline

of termination within a timeframe that is specified by the Trustee that is

appropriate for analysis of such recommendations, but not less than ninety (90)

days. The Trustee shall consider the Beneficiaries’ comments and objections, if any,

and determine that the Project Trust shall not then proceed to terminate or that the

Trustee shall move forward with the process of terminating the Trust, in which

latter case the Trustee shall deliver to the Beneficiaries a final timeline for

termination. In deciding whether termination is appropriate, the Trustee shall

consider, among other factors, any new information regarding the foreseeability

of the Site or a Beneficiary benefiting from a future Restoration Project and

whether the Trustee of the Remediation Trust has objected to the transfer of an

outstanding Beneficial Environmental Project to the Remediation Trust. The

Trustee shall not terminate the Project Trust unless all Work on  Beneficial

Environmental Projects has been completed or the Trustee of the Remediation

Trust has agreed to accept the distribution of outstanding Beneficial

Environmental Projects into the Remediation Trust. If a Beneficiary wishes to

object to any such final timeline of termination, that Beneficiary shall initiate the

Dispute Resolution process provided by this Consent Decree and, in doing so, the

Beneficiary shall identify with specificity the element(s) of the timeline or

termination decision to which it objects. A Beneficiary’s objection, or the pendency

of dispute resolution procedures with respect to the termination of the Project

Trust, shall delay or stay any activities to move forward with such termination

unless otherwise mutually agreed to by the Beneficiaries or ordered by the Court.

d. In terminating the Project Trust, the Trustee shall coordinate with

the Remediation Trust’s Trustee to distribute all Trust assets held in the Project

Trust’s Trust Accounts, and all liabilities relating thereto, to the Remediation

Trust.

34. Decisions Regarding Annual Budgets, Work Plans, and Cash Flow

Projections.

a. By October 1 of each year, the Trustee of each Trust shall prepare

drafts of an annual budget, work plans, and cash flow projections by quarter for

the next calendar year for such Trust’s Trust Remediation Account and Trust

Administrative Account. Such budgets, work plans, and cash flow projections

shall be sufficiently detailed to distinguish clearly the budgets and work proposed

for each separate Work Category and for other general categories of work, such as

Long-Term Monitoring, oversight costs, administrative costs, and permitting

costs, and an explanation of any contingency that has or is reasonably likely to

occur and trigger Contingent Funding for a particular Work Category and Trust

Account. The Trustees of the Trusts shall coordinate in preparing and providing

such budgets, work plans, and cash flow projections for each Trust.

b. The Trustees’ initial draft budgets, cash flow projections, and work

plans shall be provided to the Beneficiaries within sixty (60) days after the Effective

Date of this Consent Decree and shall cover at least the period through the next

calendar year. Thereafter, draft budgets, cash flow projections, and work plans for

each Trust shall be provided to the Beneficiaries by October 1 each year. A

Beneficiary may comment on or object to any element of a Trustee’s draft budgets,

cash flow projections, and work plans by providing written notice of such

comments or objections to the other Beneficiaries and such Trustee by December

1 each year or, in the first year, within thirty (30) days after receipt of the initial

draft budgets, cash flow projections, and work plans.

c. Such Trustee shall consider the Beneficiaries’ comments and

objections, if any, and propose final budgets, cash flow projections, and work

plans to the Beneficiaries by January 1 each year or, in the first year, within thirty

(30) days after receipt of all comments from the Beneficiaries. A Beneficiary must

lodge any objection to any element of a proposed final budget, cash flow

projection, or work plan by initiating the Dispute Resolution provisions of this

Consent Decree within ten (10) days after receiving the proposed final budgets,

cash flow projections, and work plans from a Trustee. Each severable element of a

proposed final budget, cash flow projection, or work plan shall be deemed

approved unless it is objected to with specificity through the procedures set out in

this Paragraph. Subject to the Dispute Resolution provisions of this Consent

Decree, a Trustee shall determine whether elements of a budget or work plan are

severable.

d. The Trustees shall provide to the Beneficiaries the final annual

budgets, cash flow projections, and work plans for each Trust’s Trust Remediation

Account and the Trust Administrative Account by January 15 each year or, in the

first year, within fifteen (15) days after the proposed final budgets, cash flow

projections and work plans have been issued. Such final budgets, cash flow

projections, and work plans shall denote any element that is subject to ongoing

dispute resolution, and updated versions shall be provided to the Beneficiaries

following the resolution of any such dispute.

e. Each Trust’s Trustee shall implement each final budget, cash flow

projection, and work plan for such Trust. The Trustee may cause such Trust to pay

any expense included in an approved element, or element to which the Parties do

not object, of a final budget for such Trust without any additional authorization,

subject to the Dispute Resolution provisions of this Consent Decree regarding stay

of an element as to which a dispute exists.

35. Financial Forecasts and Invoices to Mallinckrodt.

a. Beginning no later than the first regular budget cycle described in

Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow

Projections), the Trustee of each Trust shall develop a five-year budget forecast by

quarter and update the budget forecast for such Trust at least annually (Five-Year

Forecast). The Five-Year Forecast shall include proposed dates and amounts for

Mallinckrodt’s future payments to such Trust. The Trustees shall provide the Five-

Year Forecasts to the Parties on the same schedule as the budgets, cash flow

projections, and work plans required by Paragraph 34 (i.e., draft by October 1,

proposed final by January 1, and final by January 15).

b. The Trustees shall invoice Mallinckrodt annually for payments to the

respective Trusts at least sixty (60) days prior to the due date stated on the invoice

(the “Invoice Due Date”), with copies to Plaintiffs. It is the intent of the Parties and

the Court that the Trusts will hold sufficient funds, including reserves, to ensure

continuation of the Work at the Site without interruption and to allow the Trustees

to enter into contracts on favorable terms. As provided in Paragraph 19 (Initial

Funding of the Trusts), Mallinckrodt will pay an aggregate amount of $25 million

to the Trusts by December 31, 2021. Thereafter, and until the remaining

Committed Funding has been paid to the Trusts, the Trustees shall endeavor to

hold in the Remediation Trust, in aggregate, an amount in reserves equal to at least

$25 million (the “Reserve”), which amount shall not be taken into consideration in

determining the amount to invoice Mallinckrodt for purposes of the Trusts

holding sufficient funds to ensure continuation of Work at the Site without

interruption. The Reserve shall be used after all other Committed Funding other

than the Reserve has been spent on Work.

c. Beginning in 2022 and annually thereafter until 2026, the amount of

each invoice shall be $25 million or a greater amount if necessary to maintain a

balance in each Trust that is sufficient to continue the Trust’s Work at the Site

without interruption for at least the upcoming 36-month period following the

Invoice Due Date, satisfy all executed contracts, and avoid any delay in continuous

Work at the Site (the “Invoice Amount”), subject to the following additional

conditions:

i. Until all Committed Funding is fully invoiced, the Trustees

shall invoice, and Mallinckrodt shall pay to the Trusts, an aggregate annual

amount of Committed Funding of $25 million through 2026, subject to the

overall cap on Committed Funding of $187 million. Any invoice amounts

for Contingent Funding are not subject to these limits.

ii. The Trustees shall provide written notice to Mallinckrodt in

an annual budget or Five-Year Forecast of an upper limit on the Invoice

Amount(s) to be invoiced in any 12-month period by the Trustees,

collectively, at least 12 months prior to the Invoice Due Date(s).

Mallinckrodt shall not be obligated to pay in any 12-month period, and the

Trustees, collectively, shall not invoice in any 12-month period, through one

or multiple invoices, an aggregate amount greater than $25 million or the

amounts previously disclosed with at least 12 months’ notice in the

Trustees’ annual budgets or Five-Year Forecasts.

iii. The Trustees of the Trusts shall coordinate in preparing and

providing such invoices to Mallinckrodt to ensure the Invoice Amounts and

information contained in the invoices comply with this Paragraph.

iv. Mallinckrodt shall fund the Invoice Amount(s) by their

respective Invoice Due Dates and has the option, but not the obligation, to

fund at any time any or all of its not-yet-invoiced Committed Funding

obligations. The Trustees shall continue to invoice Mallinckrodt for

payments to the Trusts until Mallinckrodt’s financial obligations under this

Consent Decree are fully satisfied.

d. The Trustee of the Remediation Trust shall not invoice Mallinckrodt

for any Work on Beneficial Environmental Projects funded under Paragraph 13

(Beneficial Environmental Projects) unless the Remediation Trust’s right, if any, to

Committed Funding for that Work Category vests in accordance with Paragraph

33 (Termination of the Project Trust).

e. Each invoice shall include the Invoice Due Date, the Work

Categories and Trust Accounts to be funded by the Invoice Amount, and the

portions of the Invoice Amount that are Committed Funding and Contingent

Funding for each Trust Account. After the Committed Funding is fully paid to the

Trusts, the Trustees need not prepare an invoice in any year in which no

Contingent Funding is due to the Trusts but shall notify the Parties that there will

be no invoice in any such year.

f. If Mallinckrodt fails, in whole or in part, to make a required payment

to a Trust by the Invoice Due Date, the Trustee of such Trust shall follow the

procedures in Paragraph 20(e) (Drawdown) to obtain funds for such Trust from

the financial assurance(s), unless (i) Mallinckrodt has initiated the Dispute

Resolution process with regard to the payment, or a portion of the payment, to the

Trust, and (ii) a stay of the Invoice Due Date has been mutually agreed to by the

Parties or ordered by the Court (including a Magistrate Judge during Dispute

Resolution).

36. Recordkeeping Requirements. The Trustees shall maintain proper books,

records, and accounts relating to all transactions pertaining to the Trusts, and the assets

and liabilities of, and claims against or assumed by, the Trusts in such detail and for such

period of time as may be necessary to enable the Trustees to make a full and proper

accounting thereof and to comply with applicable provisions of law and good accounting

practices.

37. Annual Audit. Every calendar year, a public accounting firm independent

of the Trustees and the Parties shall audit the books and records of each Trust. Such

independent public accounting firm shall be recommended by the Parties and approved

by the Court in accordance with the following procedures: Not later than thirty (30) days

after the Effective Date of the Trust Agreements, the Parties shall meet and confer in an

effort to agree upon the selection of a recommended public accounting firm to perform

the annual audit of the Trusts. If the Parties agree on a recommended public accounting

firm, then within sixty (60) days after the Effective Date of the Trust Agreement, they

shall submit to the Court a request for approval of such recommendation. If the Court

denies approval, then the Parties shall further confer and, if they reach agreement,

submit an alternative recommendation within thirty (30) days after the Court’s denial. If

the Parties cannot agree on a recommended public accounting firm, a public accounting

firm shall be selected by the Court at the conclusion of the Dispute Resolution procedures

of this Consent Decree. The public accounting firm selected to perform annual audits may

be modified from time to time in accordance with the procedures provided herein. The

costs of each annual audit shall be paid by the Remediation Trust and Project Trust,

respectively as Trust Administrative Costs pursuant to Paragraph 15.

38. Quarterly Reporting Requirements. Within ninety (90) days after the end

of each calendar quarter (which shall end on March 31, June 30, September 30, and

December 31), beginning with the quarter ended after assets are first received by a Trust

and ending as soon as practicable upon termination of such Trust, the Trustee of each

Trust shall submit to the Beneficiaries, and the Trustee shall file with the Court, a written

report on such Trust, including all contents required by the attached Statement of Work

and at least:

a. Financial statements of the Trust and Trust Accounts at the end of

such calendar quarter and the receipts and disbursements of the Trust for such

quarter; and

b. A description of the cumulative actions taken to date by the Trust or

Trustee in the performance of the duties set out in this Consent Decree and its

attachments, including plans for upcoming Work.

39. Selection and Hiring of Contractors. Each Trust and its Trustee may retain

environmental, engineering, and technical consultants, contractors, and other third-party

professionals to carry out the Work required by this Consent Decree. Such technical

consultants, contractors, and other third-party professionals shall be recommended by

the Trustee and shall contract with such Trust, and the Beneficiaries shall have a

reasonable opportunity to comment on or object to these recommendations, in

accordance with Paragraph 31 (Decisions Regarding Work and Deliverables) and the

terms of the Trust’s Trust Agreement and the Statement of Work, prior to finalizing any

such contracts.

40. Contracting and Permitting Contingency. It is the intent of the Parties that

the Trusts will carry out the functions assigned to them in this Consent Decree including,

but not limited to, entering into contracts and applying for permits to carry out the Work.

If any Trustee determines that, for any reason, it is not Feasible for a Trust to take an

action contemplated by this Consent Decree including, but not limited to, entering into

contracts, applying for permits, or accepting the terms and conditions of any permit

related to the Work, such Trustee shall notify the Beneficiaries of such Trust within ten

(10) business days. The Trustee and Beneficiaries of such Trust shall meet and confer and

attempt to reach agreement on an alternative method to allow the Trust to carry out the

Work required by this Consent Decree and, if necessary, may propose modifications to

this Consent Decree, a Trust Agreement, or the Statement of Work, subject to the dispute

resolution and modification terms in Paragraphs 58 through 63 and 69 (Dispute

Resolution; Modifications).

41. Community Involvement.

a. The Trustees shall actively solicit community input and facilitate

community engagement, and will consider the following: frequent outreach to

key stakeholders, elected and community leaders, community organizations,

and media representatives; community and public meetings, focus groups,

availability sessions, open houses and other community events; establishment of

a website with an online information and document repository; correspondence

and distribution of all electronic information files via email; online contact forms

for submission of comments and questions by the public; a 24-hour hotline phone

number, emergency response numbers and contact information while Work is

occurring at the Site so that residents and stakeholders can ask questions and

report concerns on a real-time basis; distribution of materials, such as newsletters,

community event flyers, fact sheets, project updates, community surveys, and

notices of comment periods, by U.S. mail, email, and hand delivery; placement of

online and print advertising; outdoor signage; one-on-one meetings with

individual residents and stakeholders; and engagement of a Community

Involvement Coordinator. The Trustee itself, not its consultants, will lead the

Penobscot community involvement efforts.

b. The Trustees shall make themselves available and accessible to

the community residing near, or interested in, the Penobscot River Estuary. They

will seek early input, listen carefully to stakeholder feedback, and follow up on

requests and questions so that individuals and groups are certain about their

impact on the cleanup process and results. In approaching the Work, the Trustees

shall strive to engage all key stakeholders—local government representatives,

local businesses (including those whose livelihoods depend on the River),

landowners and residents, educators and students, environmental groups, local

fishing associations, and the Penobscot Nation. The Trustee shall take into account

divergent goals, interests, and views of various stakeholders and incorporate

community feedback wherever possible to support efficient, cost-effective cleanup

of the River, mindful that finite cleanup funds must be dedicated to restoration of

the Estuary.

c. The Trustees shall establish a physical presence, including an office

and community resource center, in the vicinity of the Penobscot River Estuary. The

Trustees will also incorporate Maine-based people into their teams and, wherever

possible, invest in the local economy, including by hiring local businesses,

contractors, and vendors. The Trustees will issue advance notice to ensure

businesses are aware of the Trustees’ upcoming needs.

42. Compliance with Applicable Laws. In carrying out their duties under this

Consent Decree, the Trustees shall abide by all applicable laws, including any local, state,

and federal permitting requirements for Work undertaken in fulfillment of this Consent

Decree.

IX. Cooperation and Obligations of the Parties Regarding the Trustees.

43. Not later than thirty (30) days after the Effective Date of the Trust

Agreements, Mallinckrodt shall provide, or cause to be provided, to the Trustees, as

applicable, all final reports, technical memoranda, and/or data regarding the Site from

the Court-ordered Phase I, Phase II, and Phase III Studies that were generated by the

Study Panel or Amec, including a copy of the Phase III Engineering Study project

database, with notice to the Plaintiffs of such transmittal. No Party is required to provide

to the Trustees information, reports, or data prepared by that Party, its attorneys,

consultants, or representatives, and this Paragraph does not require disclosure of

information protected by the attorney-client privilege, work-product doctrine, or other

legally recognized privileges; provided, however, that the Trusts will not incorporate into

the Work, or be responsible for, any non-public information withheld by any Party under

any claim of privilege. After providing the required materials to the Trustees, any Party

may provide to the Trustees any additional relevant environmental information, reports,

and/or data regarding the Site from the Court-ordered Phase I, Phase II, and Phase III

Studies, with notice to the other Parties. Such environmental information, reports, and/or

data shall be provided to the Trustees in the state and condition in which such

information, reports, and/or data are found.

44. Upon reasonable notice, Mallinckrodt shall not unreasonably deny access

to a Trustee or any consultants, contractors, and/or third-party professionals hired to

fulfill the Work required by this Consent Decree to any property owned by Mallinckrodt

or a Mallinckrodt Related Entity at the HoltraChem Site for any use consistent with this

Consent Decree. Mallinckrodt need not provide such access if doing so would create an

irreconcilable conflict with ongoing remediation work overseen by the State of Maine at

the HoltraChem Site.

X. Limitations on Liability and Indemnifications.

45. Limitations on Liability of the Trusts, Trustees, and Trust Parties.

a. The Parties acknowledge that neither the Trust, the Trustees, nor the

Trust Parties created, caused, or contributed to the circumstances that give rise to

the need to perform the Work, including existing conditions or existing

contamination at the Site. Therefore, nothing in this Consent Decree, Statement of

Work, or the Trust Agreement shall require the Trust, the Trustees, or the Trust

Parties to take or assume any liability pursuant to CERCLA, RCRA, the Maine

Uncontrolled Hazardous Substance Sites Law, or any other statute, regulation, or

other applicable requirements associated with Work due to existing contamination

or conditions.

b. In no event shall a Trust, Trustee, or Trust Party be held liable to any

third-party entity or person for any liability, action, or inaction of any third-party

entity or person. In the event of any claim or cause of action by a third party,

including but not limited to a governmental entity, against a Trust, Trustee, or

Trust Party and arising out of the discharge of the powers and duties conferred by

this Consent Decree or the applicable Trust Agreement, such liability shall be

satisfied first from any available insurance and then, if necessary, from the assets

already in the applicable Trust Administrative Account not including any not-yet-

invoiced Committed or Contingent Funding; provided, however, that the assets of

the Trust shall not be used to the extent the Trust, Trustee, or Trust Party’s acts or

omissions leading to such claims constitute(s) gross negligence, willful

misconduct, or fraud as determined by the Court.

c. Unless otherwise provided for in the Trust Agreements, the liability

of a Trust, Trustee, or Trust Party for any actions or inactions taken pursuant to

this Consent Decree, the attached Trust Agreements, or any order of Court entered

pursuant to or in furtherance of this Consent Decree, the attached Trust

Agreements, or applicable law, including any liability incurred as a result of the

Trust’s application for or receipt of permits or other regulatory approvals for Work

conducted pursuant to this Consent Decree or actions carried out pursuant to the

terms of the Trust Agreements, shall be limited to such Trust’s insurance coverage

and, if such liability is in excess of available insurance coverage, to assets already

in the applicable Trust Administrative Account not including any not-yet-invoiced

Committed or Contingent Funding. A Trust’s liability or indemnification of a

Trust Party for a liability shall be satisfied first from insurance and then, if

necessary, from available funding already in the applicable Trust Administrative

Account, and a Trust’s aggregate liability or indemnification shall not exceed the

combination of the limits of applicable insurance coverage and the available

funding already in the Trust Administrative Account.

d. No Trustee or Trust Party shall be personally liable unless the Court,

by a final order, finds that it was grossly negligent or committed fraud or willful

misconduct after the earlier of the Effective Date or the date on which either Trust

receives funds pursuant to Paragraph 19 (Initial Funding of the Trusts), in relation

to such Trustee’s or Trust Party’s duties.

e. Except as may otherwise be provided herein or in the Trust

Agreements: (i) the Trust Parties may rely and shall be protected in acting upon

any resolution, certificate, statement, instrument, opinion, report, notice, request,

consent, order, or other paper or document believed by them to be genuine and to

have been signed or presented by the proper entity(ies) or representative(s)

pursuant to this Consent Decree; (ii) the Trust Parties may retain and rely on the

advice of legal counsel, financial or accounting advisors, and other professionals

and experts, within the approved budget allowances for such expenses, and no

Trust Party shall be personally liable for any action taken or not taken in

accordance with the advice thereof unless this Court, by a final order, finds that

such Trust Party committed fraud or willful misconduct; and (iii) persons dealing

with a Trust Party shall look only to such Trust’s insurance and indemnification,

consistent with this Consent Decree, to satisfy any liability incurred by such Trust

Party to such person(s) in carrying out the terms of this Consent Decree or any

order of the Court, and a Trust Party shall have no personal obligations to satisfy

any such liability, other than as provided in Paragraph 45(d).

46. Limitations on Plaintiffs’ Liability. Plaintiffs MPA and NRDC shall not be

deemed to be an owner, operator, trustee, partner, agent, shareholder, officer, or director

of the Trusts, Trustees, or Trust Parties on account of this Consent Decree or actions

contemplated thereby. Plaintiffs at no time will become an owner or operator of the Site

or an owner, operator, generator, handler, arranger, or transporter of any Waste Material

at the Site under CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites

Law, or similar laws on account of this Consent Decree or actions contemplated thereby.

Plaintiffs shall not be liable for any injury or damages to persons or property resulting

from acts or omissions of any entity in implementing the requirements of this Consent

Decree. In addition, liability shall not arise from the Plaintiffs’ actions to enforce

provisions of this Consent Decree, provide comments or make objections, or trigger

dispute resolution, as provided in this Consent Decree. Notwithstanding these

limitations, if Plaintiffs are held liable for any injury or damages to persons or property

resulting from acts or omissions of any Trust, or its Trustee or Trust Party, such Trust

shall indemnify Plaintiffs and shall satisfy such liability first from the Trust’s insurance

and then, if necessary, from the Trust assets.

47. Insurance Policies. The Trustees, and any consultants or contractors

retained by a Trust or a Trustee, shall maintain insurance policies consistent with the

requirements in the attached Statement of Work and forms of the Trust Agreements. On

all such insurance policies, MPA, NRDC, and Mallinckrodt shall receive insured

protection with a right to defense by the insurer.

XI. Covenants

48. Except as provided in Paragraph 55 (Plaintiffs’ Attorneys’ Fees and Costs)

and Paragraphs 58 through 63 (Dispute Resolution), MPA and NRDC covenant not to

sue Mallinckrodt pursuant to RCRA or any other legal authority for remediation of or

damage to natural resources arising from mercury contamination relating to the Site or

the HoltraChem Site. MPA and NRDC covenant not to intervene or participate as amicus

curiae in any administrative or judicial proceeding or cause of action against

Mallinckrodt arising from mercury contamination relating to the Site or the HoltraChem

Site, except that MPA and NRDC may intervene or participate as amicus curiae, for the

purpose of ensuring and defending the implementation of this Consent Decree, in any

administrative or judicial proceeding that may affect, impede, delay, interfere with, result

in relief inconsistent with, or otherwise frustrate the implementation of the Work

required by this Consent Decree. These covenants shall take effect upon the Effective

Date, except that these covenants are conditioned upon Mallinckrodt’s satisfactory

performance of its duties and obligations under this Consent Decree and shall not in any

way impair Plaintiffs’ right to seek to enforce the terms of this Consent Decree. These

covenants extend only to Mallinckrodt and Mallinckrodt Related Entities and do not

extend to any other person or entity. These covenants bind NRDC and MPA to the full

extent allowed by Federal Rule of Civil Procedure 65(d)(2), including any person or

entity, if any, that was in privity with NRDC or MPA or is otherwise bound by this

judgment as a matter of law.

49. Except through the Dispute Resolution provisions in Paragraphs 58

through 63 and the comment and objection procedures provided by this Consent Decree,

MPA, NRDC, and Mallinckrodt covenant not to oppose or impede, directly or indirectly,

any actions taken by the Trusts or Trustees to fulfill their duties and obligations, and carry

out the Work, required by this Consent Decree. For purposes of this Paragraph, “oppose”

or “impede” includes any action to delay, hinder, obstruct, disparage, or undermine the

actions of the Trusts or Trustees through any process or public statement including, but

not limited to, opposing or challenging any permit sought or obtained by the Trusts or

Trustees or publicly opposing or challenging any Work proposed or undertaken by the

Trusts or Trustees. For purposes of this Paragraph, “directly or indirectly” means that a

Party shall not fund, assist, encourage, abet, or otherwise support any third party in

taking any action that the Party is prohibited from taking. To the fullest extent possible,

the Parties agree and covenant to fully cooperate to efficiently and effectively carry out

the intent of this Consent Decree and the Trust Agreements, but nothing in this paragraph

requires the Parties to expend funds, to accept liability or responsibility, or to indemnify

or hold harmless the Trusts, the Trustees, or the Trust Parties except to the extent such is

required elsewhere in this Consent Decree or the Trust Agreements.

50. MPA, NRDC, and Mallinckrodt shall make no claim on the Trusts or the

Trust Accounts for payment or reimbursement of any past costs incurred up to the

Effective Date, nor for any future costs incurred by a Party after the Effective Date, except

that Mallinckrodt shall have a claim to distributions from the interest and earnings of

funds in the Project Trust solely for the purpose of paying taxes owed upon such interest

and earnings of such Trust, as provided in the Project Trust Agreement.

51. Mutual Covenants Not to Sue Between Parties and Trust Parties. Except

as specifically provided herein or in the Trust Agreements, and without limiting the

Parties’ or the Trustees’, if applicable, rights to seek to enforce the terms of the Consent

Decree, Statement of Work, Remediation Trust Agreement, or Project Trust Agreement

and to seek dispute resolution as provided in this Consent Decree, upon the earlier of the

Effective Date or the date on which either Trust receives funds pursuant to Paragraph 19

(Initial Funding of the Trusts), the Parties covenant not to sue or assert any claims or

causes of action against any of the Trust Parties with respect to the matters addressed

herein, except to the extent such claims or causes of action are attributable to a Trust

Party’s fraud or willful misconduct as determined by the Court, and the Trust Parties

covenant not to sue or assert any claims or causes of action against any Party.

XII. Additional Agreements Between the Parties

52. Penobscot River Study Panel Fund. After the Effective Date, the Penobscot

River Study Panel Fund shall not be used to pay any costs or fees other than those

incurred for long-term monitoring activities in 2020 and 2021 that were approved in the

Consent Order for 2020 Monitoring, ECF No. 1053, or fees or costs of the Special Master

incurred up to the Effective Date. Mallinckrodt may move to close the Penobscot River

Study Panel Fund and to refund any funds remaining in the Penobscot River Study Panel

Fund after the Effective Date and at such time as there are no reasonably foreseeable costs

or fees chargeable to the Penobscot River Study Panel Fund.

53. Bar on Inconsistent or Duplicative Claims or Remedies.

a. The Parties agree, and the Court by endorsing this Consent Decree

finds, that:

i. Mercury discharges from the HoltraChem Site commenced

when the chlor-alkali plant on the HoltraChem Site began operations in late

1967. ECF No. 147 at 4;

ii. In 1970, the United States brought suit against Mallinckrodt’s

predecessor, then owner and operator of the HoltraChem Site, related to

mercury discharges from the HoltraChem Site. Id. at 5;

iii. In 1972, Mallinckrodt’s predecessor entered a consent decree

with the United States authorizing some limited discharge of mercury into

the Penobscot River;

iv. Mallinckrodt’s predecessor sold the HoltraChem Site to

Hanlin Group, Inc. (“Hanlin”) on or around April 30, 1982, ECF No. 147 at

3, and Mallinckrodt is not responsible for any mercury discharge from plant

operations at the HoltraChem Site after that date;

v. In 1986, the United States Environmental Protection Agency

(“EPA”) filed a RCRA administrative action against Hanlin related to

discharges of hazardous substances, including mercury, from the

HoltraChem Site. That action resulted in a consent agreement entered that

same year. Id. at 6;

vi. EPA brought a subsequent action in 1991 to enforce the 1986

consent agreement, and, in 1993, the Court entered a consent decree

between EPA and Hanlin that superseded the 1986 consent agreement. Id.

at 7;

vii. In the ensuing years, the Maine Department of Environmental

Protection worked closely with EPA in commenting on and overseeing

work performed under the 1993 consent decree. Id. at 7-8;

viii. In 2000, Plaintiffs filed their complaint in this matter under

the RCRA, 42 U.S.C. § 6972(a)(1)(B), alleging that mercury contamination in

the Penobscot River Estuary presented or may have presented an imminent

and substantial endangerment to health and the environment. ECF No. 1;

ix. The Court has previously found in 2002 and 2015 that the

mercury contamination in the Penobscot River estuary presents or may

present an imminent and substantial endangerment to health and to the

environment under RCRA. ECF No. 147 at 22; ECF No. 829 at 39. Evidence

of such endangerment was presented publicly during the trials in this

matter in 2002 and 2014, and in the Court’s orders in 2002 and 2015;

x. The Court found in 2002 that mercury concentrations in

various Penobscot River Estuary organisms, including killifish, lobster

tomalley, blue mussels, and cormorants, were elevated. ECF No. 147 at

17-20;

xi. The Court found in 2002 that individuals who lived on or near

the Penobscot River suffered injuries fairly traceable to the mercury

discharged from the HoltraChem Site, including from elevated levels of

mercury in fish and shellfish. Id. at 26-27;

xii. In November 2003, the Court ordered the creation of a Study

Panel to conduct a two-phase study of mercury in the Penobscot River

Estuary. ECF No. 159;

xiii. The purpose of the study was to determine the following: (1)

the extent of the existing harm resulting from mercury contamination to the

Penobscot River Estuary south of the HoltraChem Site; (2) the need for and

feasibility of a remediation plan to effectively address the present effects of

such existing harm, if any; and (3) the elements of and timetable for the

execution of the appropriate remediation plan to address the harm existing

as a result of mercury contamination. Id. at 1-2;

xiv. Among the questions the Study Panel was charged with

answering was whether mercury in the Penobscot River Estuary was

“having significantly adverse effects on populations of organisms” in the

Penobscot River Estuary. Id. at 2;

xv. The Study Panel submitted a 117-page report (“Phase I

Report”) on January 25, 2008. ECF No. 382. The Phase I Report concluded

that the Penobscot River Estuary was “contaminated with [mercury] to an

extent that poses endangerment to some wildlife species and possibly some

limited risk for human consumers of fish and shellfish.” Id. at 5. It further

concluded that the data justified the study proceeding to a second phase.

Id.;

xvi. In March 2008, the Court ordered the Study Panel to proceed

to its second phase (the “Phase II Study”) to address “whether it is

necessary and feasible to ameliorate mercury and the methylation of

mercury in the Penobscot River now and in the future by means that will

exceed the benefits likely to be had by allowing the natural attenuation

processes in operation in the River to accomplish over time and, if so, what

reasonable human processes will accomplish that end.” ECF No. 390;

xvii. The Study Panel submitted its Phase II Report on April 19,

2013. ECF Nos. 652-1–652-65;

xviii. The Plaintiffs and Mallinckrodt each filed objections to the

Phase II Report. ECF Nos. 663, 664;

xix. The Court dismissed the objections, preferring to address the

challenges in the course of the anticipated bench trial. ECF No. 721;

xx. The Court held a bench trial between June 3, 2014 and June

27, 2014 to hear testimony and evaluate the findings and recommendations

in the Phase II Report;

xxi. As a result of the 2014 trial, the Court found that the mercury

contamination of the Penobscot River Estuary caused by Mallinckrodt

continued to present an imminent and substantial endangerment to human

health and the environment. ECF No. 829 at 39;

xxii. The Court ordered that an engineering firm be appointed to

investigate the feasibility of potential remedies to the mercury

contamination. Id. at 1, 61;

xxiii. In January 2016, the Court selected Amec to perform an

evaluation of potential active remedies to speed the recovery of the

Penobscot River estuary from its state of mercury contamination. ECF Nos.

836, 845;

xxiv. In September 2018, Amec completed its Phase III Engineering

Study Report containing the conclusions of its evaluation, which was filed

with the Court in October 2018. ECF Nos. 972—972-2;

xxv. Throughout Phases I, II, and III, various State of Maine and

federal government agencies were kept apprised of the studies and had

involvement in various aspects of the studies;

xxvi. In 2011, the Maine Department of Inland Fisheries and

Wildlife advised that pregnant women and young children not consume

waterfowl from Mendall Marsh due to elevated mercury levels found in the

tissue of black duck taken from Mendall Marsh;

xxvii. By emergency and permanent rulemakings in 2014, the Maine

Department of Marine Resources closed an area of the upper Penobscot

estuary to lobster and crab fishing due to elevated levels of mercury found

in lobster tissue taken from the closed area. ECF No. 829 at 52-53. By

emergency and permanent rulemakings in 2016, the Department of Marine

Resources expanded the closed area; and

xxviii. Despite continuing scientific uncertainties, the Work required

by this Consent Decree, and the Court’s injunction to require such Work, is

appropriate, and reasonably calculated to accelerate the recovery of the

Penobscot River Estuary and thereby ameliorate the endangerment that is

presented or may be presented by mercury contamination in the Penobscot

River Estuary.

b. To the fullest extent allowed by law, it is the intent of the Parties and

the Court that the Work required by this Consent Decree will not be interfered

with or delayed by later causes of action.

c. As provided in Paragraph 76 (Retention of Jurisdiction), the Court

shall retain jurisdiction over this matter and this Consent Decree, including

jurisdiction to issue all writs necessary or appropriate to effectuate and preserve

the integrity of this Court’s injunction, this Consent Decree, and the Work ordered

herein.

d. Mallinckrodt reserves all defenses permitted to it by law as to other

causes of action regarding mercury contamination at the Site. Such defenses may

include, but are not limited to: (i) statutes of limitations, including any that may

have been triggered by the public disclosures of conditions at the Site in this

matter; (ii) laches; (iii) issue or claim preclusion; (iv) the contribution bars

provided by CERCLA, 42 U.S.C. § 9613(f)(2), the Uniform Comparative Fault Act,

and/or federal common law, as interpreted and expanded in subsequent judicial

decisions; and (v) the right to seek relief from this Court to enjoin any action

seeking relief that would interfere with the integrity of this Consent Decree.

54. The Parties agree to make best efforts to cooperate with one another to

secure the Court’s endorsement of this Consent Decree and then to ensure prompt and

effective implementation of the remedies set forth in this Decree. To the extent

practicable, the Parties will work together regarding any public notice, outreach,

comment process, and/or hearing that the Court may prescribe as part of the Court’s

review of this Consent Decree. The Parties intend that a spirit of cooperation will endure

through the life of the Consent Decree and inform their conduct in connection with

implementing the terms of the Consent Decree.

55. Plaintiffs’ Attorneys’ Fees and Costs. The Parties will make best efforts to

resolve through a separate agreement Plaintiffs’ claims for recovery of reasonable

attorneys’ fees, expert fees, and costs from Mallinckrodt. The Parties agree to resolve any

dispute concerning Plaintiffs’ recovery of reasonable attorneys’ fees, expert fees, and

costs, including any dispute arising from such separate agreement, through the Dispute

Resolution procedures in Section XIV of this Consent Decree. Should this issue be

submitted for Dispute Resolution, the Parties reserve their respective rights, defenses,

and claims. The Court’s retention of jurisdiction to enforce the terms of this Consent

Decree extends to the issue of recovery of Plaintiffs’ attorneys’ fees, expert fees, and costs.

XIII. Reservations of Rights

56. Mallinckrodt reserves all rights, defenses, claims, and causes of action that

it may have with respect to any matter relating to this Consent Decree against any third

party or person not party to this Consent Decree, including the right to seek contribution

from other potentially responsible parties, excluding the Trusts, Trustees, and Trust

Parties.

57. Plaintiffs reserve all rights, defenses, claims, and causes of action that they

may have with respect to any matters related to this Consent Decree against any third

parties or other persons not party to this Consent Decree, except the Trusts, Trustees, and

Trust Parties. Plaintiffs reserve all rights, defenses, claims, and causes of action that they

may have with respect to matters unrelated to this Consent Decree. Except as provided

in Paragraph 49, this Consent Decree does not limit Plaintiffs’ rights to communicate with

their members and the public regarding this matter, this Consent Decree, the Site, the

HoltraChem Site, or related matters.

XIV. Dispute Resolution

58. Enforcement. Plaintiffs shall have the right to enforce the obligations of

Mallinckrodt under this Consent Decree to fund the Trusts. This right exists regardless of

whether rights of enforcement against the Trusts, Trustees, or any other entity are

provided in this Consent Decree or by other agreements.

59. Dispute Resolution Generally. Disputes between the Parties arising under

this Consent Decree, including but not limited to any enforcement actions by Plaintiffs

under Paragraph 58, shall be resolved by following sequentially the informal dispute

resolution, mediation, and, if necessary, formal dispute resolution procedures in this

Section. Unless otherwise expressly provided herein, the dispute resolution procedures

of this Section shall be the exclusive mechanism to resolve disputes between the Parties

arising under this Consent Decree, including disputes regarding the meaning or

enforcement of its terms.

60. Informal Dispute Resolution

a. A dispute shall be considered to have arisen as of the date at the Site

when one Party or a Trustee sends to the other Parties and/or a Trustee a written

Notice of Dispute. The Trustees shall be included in Dispute Resolution

procedures only to the extent the dispute relates to a duty, obligation, or right of

the Trustees, Trusts, and/or Trust Parties under this Consent Decree.

b. Any dispute regarding this Consent Decree shall in the first instance

be the subject of informal negotiations between the Parties and, if necessary, the

affected Trustee(s), to attempt to resolve the dispute cooperatively. The period for

informal negotiations shall not exceed twenty (20) calendar days from the date the

dispute arises, unless the parties to the dispute mutually agree to modify that

period by written agreement.

61. Mediation

a. Any dispute that cannot be resolved by the Parties and, if applicable,

the Trustee(s), through informal negotiations shall be presented to a Magistrate

Judge of the Court for mediation. The Party that raised the dispute shall give

written notice to the Magistrate Judge, other Parties and, if applicable, the

Trustee(s). Such written notice shall describe the dispute, the Party’s position, and

the informal negotiations that have taken place so far, and shall be transmitted to

the Magistrate Judge within three (3) business days after the expiration of the

informal negotiation period in Paragraph 60(b).

b. Upon receiving written notice that a dispute has arisen that the

Parties and, if applicable, the Trustee(s), have been unable to resolve informally,

the Magistrate Judge shall, as promptly as possible, mediate the dispute. In doing

so the Magistrate Judge may prescribe such procedures as the Magistrate Judge

deems appropriate. The precise schedule of the mediation proceedings shall be at

the discretion of the Magistrate Judge, but the Magistrate Judge shall endeavor to

mediate the dispute within thirty (30) days after the Magistrate Judge receives

notice of the dispute. The Parties, and, if applicable, the Trustee(s), shall cooperate

fully with any procedures, processes, and requirements that the Magistrate Judge

may set for the mediation proceedings.

62. Formal Dispute Resolution

a. In the event of a dispute that cannot be resolved by the informal

negotiation and mediation specified in Paragraphs 60 and 61, any Party or, if

applicable, Trustee may request that the Court formally refer the dispute to the

Magistrate Judge for resolution. The Magistrate Judge’s referral shall be filed

publicly on the Court’s docket and shall be treated as a pretrial matter referred to

the Magistrate Judge under Federal Rule of Civil Procedure 72.

b. For any disputes presented to the Court, the Parties shall not oppose,

and may jointly propose, expedited briefing if briefing is necessary.

63. Stays Pending Dispute Resolution. The invocation of dispute resolution

procedures under this Section does not extend, postpone, stay, or affect in any way any

obligation of Mallinckrodt or the Trustees under this Consent Decree, except as mutually

agreed in writing by the Parties or ordered by the Court or Magistrate Judge. In any event,

if a stay is issued pursuant to this Paragraph as to an element of a Deliverable that is

severable from other related elements, continued progress on the related elements shall

not be stayed or otherwise delayed by the dispute.

XV. Notice.

64. Notice. When a notice, comment, objection, submission, report, or request

is to be given or is allowed under this Consent Decree, either by a Party or Trustee, such

notice, comment, objection, submission, report, or request shall be written, shall be

conveyed electronically by email, and shall be provided at the same time to the

designated representatives of all of the Parties and the applicable Trustee(s). The Parties

and Trustees shall give notice if their designated representatives change or have a change

in contact information. As of the Effective Date, the designated representatives are:

a. For Plaintiffs:

i. Mitchell Bernard, NRDC, 40 West 20th Street, New York, NY

10011; (212) 727‐4469; mbernard@nrdc.org.

ii. Jared Thompson, NRDC, 1152 15th Street NW, Suite 300,

Washington, DC 20005; (202) 513-6249; jared.thompson@nrdc.org.

b. For Mallinckrodt:

i. Patricia Hitt Duft, on behalf of Mallinckrodt US LLC, 710

Medtronic Parkway, LC 300, Minneapolis, MN 55432; (314) 753-0413;

patricia.h.duft@medtronic.com.

ii. Jeffrey Talbert, Preti Flaherty, One City Center, Portland, ME

04112; (207) 791-3000; jtalbert@preti.com.

iii. Lisa Palin, Tax Director, Medtronic, 15 Hampshire St.,

Mansfield, MA 02048; (508) 542-4272; lisa.palin@medtronic.com.

c. For the Greenfield Penobscot Estuary Remediation Trust LLC:

i. Cynthia Brooks, Greenfield Penobscot Estuary Remediation

Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street,

Unit 1, Cambridge, MA 02138; (617) 448-9762; cb@g-etg.com.

ii. Lauri Gorton, Greenfield Penobscot Estuary Remediation

Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes

Street, Milwaukee, WI 53207; (414) 732-4514; lg@g-etg.com.

iii. Craig Kaufman, Greenfield Penobscot Estuary Remediation

Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street,

SE, Washington, DC 20003; (215) 837-3702; ck@g-etg.com.

d. For the Greenfield Penobscot Estuary Project Trust LLC:

i. Cynthia Brooks, Greenfield Penobscot Estuary Project Trust

LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit

1, Cambridge, MA 02138; (617) 448-9762; cb@g-etg.com.

ii. Lauri Gorton, Greenfield Penobscot Estuary Project Trust

LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes

Street, Milwaukee, WI 53207; (414) 732-4514; lg@g-etg.com.

iii. Craig Kaufman, Greenfield Penobscot Estuary Project Trust

LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE,

Washington, DC 20003; (215) 837-3702; ck@g-etg.com.

XVI. Miscellaneous Provisions

65. Force Majeure

a. For purposes of this Consent Decree, a “Force Majeure-Affected

Entity” may include Mallinckrodt or a Trustee, and shall refer to whichever entity

having obligations under this Consent Decree asserts that a Force Majeure has

occurred. “Force Majeure,” for purposes of this Consent Decree, is defined as any

event arising from causes beyond the control of a Force Majeure-Affected Entity,

of any entity controlled by a Force Majeure-Affected Entity, or of any contractor

hired by a Force Majeure-Affected Entity that delays or prevents the performance

of any obligation under this Consent Decree despite the Force Majeure-Affected

Entity’s reasonable efforts to fulfill the obligation. The requirement that a Force

Majeure-Affected Entity exercise “reasonable efforts to fulfill the obligation”

includes using reasonable efforts to anticipate any potential Force Majeure and

using reasonable efforts to address the effects of any potential Force Majeure as it

is occurring and 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 insufficient funds to complete the Work.

b. If any event occurs or has occurred that may delay the performance

of any obligation under this Consent Decree for which a Force Majeure-Affected

Entity intends or may intend to assert a claim of Force Majeure, the Force Majeure-

Affected Entity shall notify the Parties within three (3) days of when the Force

Majeure-Affected Entity first knew that the event may cause a delay. Within seven

(7) days after providing such notice, the Force Majeure-Affected Entity shall

provide in writing to the Parties 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; the Force

Majeure-Affected Entity’s rationale for attributing such delay to a Force Majeure;

and a statement as to whether, in the opinion of the Force Majeure-Affected Entity,

such event may cause or contribute to an endangerment to public health or

welfare, or the environment. The Force Majeure-Affected Entity shall include with

any notice all available, non-privileged documentation supporting its claim that

the delay was attributable to a Force Majeure. A Force Majeure-Affected Entity

shall be deemed to know of any circumstances of which the Force Majeure-

Affected Entity, any entity controlled by the Force Majeure-Affected Entity, or the

Force Majeure-Affected Entity’s contractors or subcontractors knew or should

have known. Failure to comply with the above requirements regarding an event

shall preclude a Force Majeure-Affected Entity from asserting any claim of Force

Majeure regarding that event. Any disputes regarding the existence, mitigation, or

resolution of a Force Majeure shall be resolved through the Dispute Resolution

provisions in Paragraphs 58 through 63.

66. Third-Party Rights. This Consent Decree does not create rights or benefits

for, or grant any cause of action to or rights of enforcement by, any third party not named

in this Consent Decree.

67. Joint Authorship. In the event of a dispute under this Consent Decree, the

Parties shall be considered joint authors of this Consent Decree and no provision shall be

interpreted against any Party because of authorship.

68. Successors to NRDC or MPA. In the event that NRDC or MPA disbands or

otherwise ceases operations, it shall assign its rights under this Consent Decree to the

remaining Plaintiff organization. If the remaining Plaintiff organization also disbands or

otherwise ceases operations, it shall assign its rights under this Consent Decree to another

qualified nonprofit organization. A nonprofit organization shall be qualified for

assignment under this Consent Decree if it: (a) is a charitable organization under Section

501(c)(3) of the Internal Revenue Code, a social welfare organization under Section

501(c)(4) of the Internal Revenue Code, or the substantial equivalent; and (b) has an

established record of working to enhance or preserve public health and the environment.

Any such assignment shall be subject to approval by the Court, and Mallinckrodt shall

have the right to object to any proposed assignment. Any successor organization shall

have the duty to assign its rights under this Consent Decree to another qualified nonprofit

organization in the event that the successor disbands or otherwise ceases operations. In

the event that a successor is not appointed at any given time, the Trustee of the

Remediation Trust shall propose the appointment of a qualified successor subject to

approval by the Court and objection by Mallinckrodt.

69. Modifications.

a. Modifications to Consent Decree. Modifications to this Consent

Decree shall be in writing, signed by authorized representatives of Plaintiffs and

Mallinckrodt, and shall be effective upon approval by the Court.

b. Modifications of Statement of Work and Trust Agreements.

Modifications to the Statement of Work or Trust Agreements shall be in writing,

signed by authorized representatives of Plaintiffs, Mallinckrodt, and the

applicable Trustee(s), and shall be effective immediately upon the Parties’ and

Trustee’s(s’) written agreement without further action by the Court. The Trustees

shall cause any such modified Statement of Work or Trust Agreement to be filed

on the Court’s docket, along with a brief statement identifying any material

modifications.

c. Disputes Regarding Modifications. Any dispute regarding

modifications to this Consent Decree, the Statement of Work, or a Trust Agreement

shall be resolved through the Dispute Resolution provisions of this Consent

Decree.

70. List of Appendices.

a. “Appendix A” is the Statement of Work.

b. “Appendix B” is the form of the Remediation Trust Agreement.

c. “Appendix C” is the form of the Project Trust Agreement.

d. “Appendix D” is the form of the surety bond for financial assurance.

e. “Appendix E” is the Study Reaches Map, Figure 1-1 from Amec’s

Phase III Engineering Study Report, ECF No. 972-1.

f. “Appendix F” is the Surface Deposits Map, Figure 8-3 from Amec’s

Phase III Engineering Study Report, ECF No. 972-2.

71. Entire Agreement. This Consent Decree and its appendices constitute the

final, complete, and exclusive agreement and understanding among the Parties regarding

the settlement embodied in this Consent Decree. The Parties acknowledge that there are

no representations, agre

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