# MAINE PEOPLE'S ALLIA v. HOLTRACHEM MFG CO

> District Court, D. Maine · October 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10211654

## Case

- **Court:** District Court, D. Maine
- **Decided:** October 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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 ap

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211654. Public record. Not legal advice.