Memorandum of Agreement
This is the text of the agreement signed by U.S. EPA and the other government agencies involved in the cleanup and restoration.
- INTRODUCTION AND PURPOSE
- THE AFFECTED ENVIRONMENT
- PRP FUNDING
- GENERAL PROVISIONS
MEMORANDUM OF AGREEMENT
Wisconsin Department of Natural Resources
United States Department of the Interior
Menominee Indian Tribe of Wisconsin
Oneida Tribe of Indians of Wisconsin
National Oceanic and Atmospheric Administration
United States Environmental Protection Agency
REGARDING RESTORATION OF THE
LOWER FOX RIVER, GREEN BAY AND LAKE MICHIGAN ENVIRONMENT
I. INTRODUCTION AND PURPOSE
This Memorandum of Agreement ("Agreement") by and among the Wisconsin Department of Natural Resources ("WDNR"), the United States Department of the Interior ("DOI"), acting through its representative the Fish and Wildlife Service ("FWS"), the Menominee Indian Tribe of Wisconsin ("MITW"), the Oneida Tribe of Indians of Wisconsin ("OTIW"), the United States Environmental Protection Agency ("EPA"), and the United States Department of Commerce, through its representative the National Oceanic and Atmospheric Administration ("NOAA") (collectively referred to as the Parties) is entered into to provide for the coordination and cooperation of the Parties in addressing the release or threat of release of hazardous substances into the Lower Fox River, Green Bay and Lake Michigan environment ("the Affected Environment"). Activities of the Parties covered under this Agreement include, but are not limited to: (1) coordination of the Parties' response and restoration activities, including removal and remediation actions and the assessment of damages for natural resources injured by the release or threat of release of hazardous substances to the Affected Environment; and (2) negotiations with parties who are potentially responsible for the release or threat of release of hazardous substances to the Affected Environment ("PRPs") for the purpose of resolving the Parties' civil claims against them. The PRPs include, without limitation: Fort Howard Corporation, NCR Corporation, Appleton Papers, Inc., P.H. Glatfelter Company, Riverside Paper Corporation, U.S. Paper Mills Corp., and Wisconsin Tissue Mills Inc. The purpose of this Agreement is to provide a framework for coordination and cooperation among the Parties, and for the implementation of the activities of the Parties in the furtherance of their respective responsibilities and mutual goal of remediating and/or responding to hazardous substance releases and threats of releases to, and restoring injured and potentially injured natural resources in, the Affected Environment.
The Parties enter into this Agreement in accordance with the provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 U.S.C. §§ 9601, et seq., the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., Sec. 292.11 Wis. Stats., and/or other applicable federal, state and tribal law and authority (hereinafter "applicable law") including, but not limited to, the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), as amended, 40 C.F.R. Part 300, and, the DOI Natural Resource Damage Assessment Regulations, as amended, 43 C.F.R. Part 11. It is further recognized by the Parties to this Agreement that working together collectively and cooperatively towards common response and natural resource restoration goals is necessary because of the common supporting ecosystems.
III. THE AFFECTED ENVIRONMENT
This Agreement is intended to cover, but is not limited to, (1) the release or threat of release of any hazardous substance to the Lower Fox River, Green Bay and Lake Michigan environment, and (2) the natural resources as defined under the authorities cited above, and other applicable law, belonging to, managed by, controlled by, regulated by, or appertaining to the Parties in the Lower Fox River, Green Bay and Lake Michigan environment which may have been affected as a result of said release or threat of release of hazardous substances as defined under CERCLA and other applicable law.
Parties Pursuant to the authorities cited in Section II of this Agreement, the WDNR, DOI, MITW, OTIW, and NOAA, have asserted that they have either exclusive or shared natural resource trusteeship over natural resources of the Affected Environment and the authority to act on behalf of the public to recover damages from PRPs for injury to natural resources resulting from the release of hazardous substances, and to take appropriate actions necessary to restore injured natural resources. Pursuant to the authorities cited in Section II of this Agreement, EPA and WDNR have response authority under CERCLA, the NCP, and/or applicable state law to ensure the removal and/or remediation of hazardous substance releases or threats of releases that pose an imminent and substantial danger to the public health, welfare or the environment in the Affected Environment. Consistent with the authorities cited in Section II of this Agreement, WDNR has a leadership role, in full partnership with EPA, in exercising response authority. The provisions of this Agreement are not intended to interfere in any way with any Party's responsibility to carry out those statutory and/or regulatory responsibilities. The following officials, or their designated representatives, shall act on behalf of their respective Party for all activities under this Agreement.
- WDNR Secretary of WDNR
- DOI Director of FWS Region III
- MITW Tribal Chairperson
- OTIW Tribal Chairperson
- NOAA Director, Office of Ocean and Coastal Resource Assessment
- EPA Administrator of EPA Region 5
In the event a Party designates a representative other than the official identified above to act on its behalf under this Agreement, the Party shall provide written notice of such designation to all other Parties at least two weeks prior to such designation becoming effective, unless otherwise agreed to by the Parties.
Reservation of Authority. The terms "trusteeship", and "trustees" or "trustee" are used in this Agreement only for the purpose of identification. No party to this Agreement is acknowledging or recognizing the trusteeship of any other Party or non-party to this Agreement, either generally or as to specific natural resources. Nothing in this Agreement is to imply, or operate in a manner, that any natural resource trustee with an interest in the Affected Environment, whether a Party to this Agreement or not, is in any way abrogating or ceding any natural resource trustee responsibility or authority over natural resources of the Affected Environment.
Other Natural Resource Trustees. Notwithstanding any other provisions of this Agreement, the Parties recognize that there may be other parties who are not signatories to this Agreement and who may assert a natural resource interest that is located in the Affected Environment or affected by the release or threat of release of hazardous substances to the Affected Environment. If such party requests to become a signatory to this Agreement, the Parties will in good faith consider modifying this Agreement to allow such party to participate in the activities contemplated under this Agreement. Such other parties may include tribal governments, other federal or state agencies, or affected trustee agencies from other states, which may be added by addendum to this Agreement, as necessary and appropriate under applicable law.
Management Committee. The Parties recognize the importance of coordinating their efforts in order to address their respective concerns and fulfill their respective responsibilities effectively and efficiently. Accordingly, the Parties hereby agree to create the Lower Fox River/Green Bay/Lake Michigan Environment Management Committee (" Management Committee"). Each Party, as specified under Section IV shall designate one primary representative to the Management Committee and one alternative representative to act in the absence of the primary representative. The purpose of the Management Committee is to make recommendations to the Parties on issues related to remediation and restoration of the Affected Environment, including restoration of injured natural resources in the Affected Environment.
Duties and Responsibilities. In accordance with applicable law, the Management Committee shall coordinate and authorize all activities and matters under this Agreement including, but not limited to, the following:
Work to ensure that there is active coordination and participation of the Parties in their respective activities under the Authorities cited in Section II of this Agreement in order to accomplish effective and efficient response action, assessment of injury and damages for natural resources, and restoration of injured natural resources in the Affected Environment.
Consider proposals and recommendations made by the workgroups created pursuant to this Agreement for the purpose of reaching consensus on recommendations to be made to the Parties to this Agreement so that the Parties may carry out their responsibilities in a manner that fully considers natural resource trusteeship concerns and response authority concerns.
Coordinate efforts among the existing workgroups identified herein and create and establish guidelines for additional workgroups when they are deemed necessary to further the objectives of this Agreement. The purpose of the workgroups is to share data and information, assess proposals and make recommendations to the Management Committee. The existing workgroups are:
- the Assessment Workgroup;
- the Sediment Management Workgroup;
- the Model Workgroup; and
- the Restoration Workgroup.
Engage in discussions and negotiations with PRPs for the purpose of aiding in the resolution of the Parties' civil claims against the PRPs.
Take such actions as may be deemed necessary to manage and achieve the objectives of this Agreement and to fulfill the responsibilities of each Party.
Collaborate on the assessment of natural resource damages through the Management Committee. The parties agree that the ongoing federal/tribal activities or contractual relationships that are part of the natural resource damage assessment being performed in accordance with the Assessment Plan: Lower Fox River/Green Bay, as published at 61 F.R. 43558, and all amendments thereto, shall continue without interruption.
Decisionmaking. All decisions made by the Management Committee and the Consensus Committee under this Agreement shall be made by consensus among the members of such Committees.
Dispute Resolution. In the event of a dispute involving any decisions to be made under this Agreement, the Management Committee shall initially attempt to resolve the dispute through good faith discussions directed toward obtaining consensus among the members of the Management Committee involved in the dispute and consensus by the Management Committee as a whole. If consensus cannot be achieved after good faith discussions, the matter shall be referred for resolution by consensus to a committee composed of six individuals ("Consensus Committee"). The Consensus Committee shall include: 1) an individual from the United States Department of Justice; 2) the Director of FWS Region III, representing FWS, NOAA, the Oneida and the Menominee, representing federal and tribal natural resource responsibilities; 3) an individual representing EPA; 4) an individual from WDOJ; 5) an individual from WDNR representing state natural resource trustee responsibilities; and 6) an individual from WDNR representing state response authorities. The Parties agree that an individual's appointment to the Consensus Committee shall be permanent whenever practicable.
Meetings. Any member of the Management Committee may, upon reasonable notice to all members of the, Management Committee, call a meeting of the Management Committee to be conducted either in person or by telephone conference call. No meeting of the Management Committee shall take place without reasonable notice to all members of the Management Committee. Such meetings shall generally be held in conjunction with other set meetings among the Parties to this Agreement.
Workgroups. All Parties shall have the right to appoint a representative to each existing workgroup or workgroup created by the Management Committee pursuant to this Agreement.
Public Information. The Parties agree that it is desirable to keep the public informed of their activities under this Agreement. Accordingly, consistent with the Parties' obligations to maintain the confidentiality of certain information as set forth in Section VIII of this Agreement or elsewhere, the Parties agree to make periodic joint statements to the public and/or conduct periodic public meetings.
The Parties agree to coordinate their efforts to the extent consistent with their respective responsibilities to address the release or threat of release of hazardous substances and injury to natural resources in the Affected Environment. The Parties further acknowledge that based on current information the removal of the PCB contaminated sediments in the Lower Fox River is expected to be the principal, but not exclusive, action undertaken to achieve restoration and rehabilitation of the injured natural resources and the services those resources provide in the Affected Environment. The Parties agree to work together to:
Create workgroups when they are deemed necessary and appropriate to further the purposes of this Agreement.
As appropriate, participate in removal, remedial, corrective or other actions under the authority of EPA, WDNR or other federal or state agencies in order to address contaminated sediments in the Affected Environment.
Prevent or limit injury to natural resources through requests for initiation of removal and response actions by EPA, WDNR or authorized federal or state agencies, if appropriate.
Coordinate and/or carry out actions to contract with professional consultants, technical or otherwise, to provide services to effect the purposes of this Agreement.
Coordinate and/or carry out such other actions as may be necessary and appropriate to achieve the purposes of this Agreement.
VII. PRP FUNDING
Each Party agrees to cooperate in the administration of any funding source or sources that may become available to all Parties from the PRPs to further the objectives of this Agreement. The Management Committee established pursuant to this Agreement shall make recommendations to the Parties on the appropriate method for administering any such funds.
The Parties agree to consult concerning the use of any funds that may become available under the January 31, 1997 "Agreement Between the State of Wisconsin and Certain Companies Concerning the Fox River" ("State/Company Agreement") either to assess or to address injuries to natural resources in the Affected Environment. Any decision regarding the use of such funds is solely within the discretion of WDNR.
Need for Confidentiality Among Parties. As a result of the release or threat of release of hazardous substances into the Affected Environment, the Parties have potential claims for injunctive relief, restitution and/or damages and anticipate possible litigation with the PRP(s) in the event negotiations with the PRPs fail to achieve a resolution of all Parties' claims against them. In furtherance of their common interests, the Parties to this Agreement have been meeting and will continue to meet to discuss matters of common interest including possible litigation by the Parties against the PRPs. The Parties may also wish to exchange among themselves documents and information including draft reports, analyses, opinions, conclusions and advice prepared in anticipation of litigation. In order to preserve any claim of privilege that may apply to such communications and materials, the Parties will comply with the provisions set forth in Appendix A to this Agreement.
IX. GENERAL PROVISIONS
Reservation of Rights. Nothing in this Agreement is intended or shall be construed to be an admission by the Parties in any dispute or action between the Parties or between the Parties and a third party. Nothing in this Agreement is intended or shall be construed as a waiver by the Parties for any claims or defenses in any legal action, or of any other rights or remedies.
Neither execution of this Agreement nor performance of any activities pursuant to this Agreement shall constitute an admission by any Party of (nor be construed as precedent for) any other Party's or non-party's legal authority or responsibility under federal, state, or tribal law to protect, restore, or enhance any natural resources associated with the Affected Environment. Furthermore, neither execution of this Agreement nor performance of any activities pursuant to this Agreement shall constitute an admission by any Party of (nor be construed as precedent for) any Party's liability for damage or injury which the natural resource damage assessment may show has occurred to any natural resources associated with the Affected Environment over which any other Party or non-party asserts trusteeship.
Nothing contained herein is intended or shall be construed to limit any Parties' authorities under the authorities listed in Section II of this Agreement.
Nothing contained herein is intended or shall be construed to modify the terms of the State/Company Agreement.
Nothing contained herein is intended to abridge the rights of any Party to negotiate independently with the PRPs regarding specific issues or a settlement of such Party's claims. Nevertheless, the Parties agree that a goal of this Agreement is to work cooperatively together to negotiate a resolution of all Parties' civil claims in connection with the Affected Environment. In the event a Party to this Agreement agrees to negotiate independently with one or more PRPs regarding specific issues or a settlement of such Party's claims, such Party shall provide written notice of its intent to negotiate independently to all members of the Management Committee. Such notice shall be provided by facsimile within 24 hours of agreeing to such independent negotiations.
Limitation of Authority. Nothing herein authorizes the Parties to enter into settlements on behalf of the other Parties and, absent separate consent, a Party does not represent another Party in any litigation that may be commenced by the other Parties. Nothing in this Agreement shall be construed as obligating any of the Parties to expend any funds in excess of appropriations or other amounts authorized by law.
Third Parties. This Agreement is not intended to, nor shall it, vest rights in persons who do not represent the Parties to this Agreement or who are not Parties to this Agreement.
Effective Date/Amendment and Termination. This Agreement shall be effective when executed by all of the Parties and may not be amended except by written agreement of all the Parties. This Agreement can be executed in one or more counterparts, each of which will be considered an original document. This Agreement shall continue in effect unless terminated by written agreement of all the Parties. However, any Party may terminate its participation in the Agreement upon giving thirty (30) days written notice to all other Parties or as otherwise provided for herein. The withdrawal of any Party to this Agreement for whatever reason, shall not affect the subsequent validity of this Agreement among the remaining Parties, and the remaining Parties agree to use any remaining funds made available by the PRPs for remediation and/or restoration of the Affected Environment.
IN WITNESS WHEREOF the Parties have executed this Agreement on the dates attested to below.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES
UNITED STATES DEPARTMENT OF THE INTERIOR
MENOMINEE INDIAN TRIBE OF WISCONSIN
ONEIDA TRIBE OF INDIANS OF WISCONSIN
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1. Except as provided below or otherwise provided herein, the Parties shall treat all designated privileged documents generated, and designated privileged communications, by, between or among the Parties as privileged attorney-client communications, attorney work product or protected by other applicable privileges such as the deliberative process privilege (or as a combination thereof), and shall protect such documents and communications from disclosure to the maximum extent possible under applicable Federal, State, and tribal law. A "designated privileged communication" is one which occurs with an expectation of confidentiality and includes, but is not limited to, communications between the Parties' attorneys or their staffs, agents, and/or experts in anticipation of litigation, in the seeking or giving of legal advice, and/or in the context of pre-decisional government and/or tribal deliberations. Similarly, a "designated privileged document" is a document which is drafted with an expectation of confidentiality, and includes, but is not limited to, communications between the Parties' attorneys or their staffs, agents, and/or experts in anticipation of litigation, in the seeking or giving of legal advice, and/or in the context of pre-decisional government and/or tribal deliberations.
2. The transmittal of a designated privileged document to, or a designated privileged communication between or among any of the Parties (and their counsel, representatives, contractors and consultants) does not waive, or imply any waiver, of any privilege or right which the transmitting Party may assert with respect to that document or communication.
3. Unless otherwise specifically provided, the parties shall each be entitled to assert an applicable privilege with respect to any document or communication jointly transmitted, prepared, or funded by the parties. Each Party shall be entitled to assert an applicable privilege with respect to any document or communication transmitted, prepared, or funded solely by that Party.
4. If a subpoena, discovery request, or other request in any form, for a designated privileged document or information provided under this MOA is received by any Party, a copy of the subpoena or request will be immediately forwarded to counsel for the Party or Parties to which the privilege applies and to the Party representative(s) who originally generated the document or communication requested. The Party who receives such a request shall also provide a draft of the Party's intended response to such request not less than ten (10) days prior to the date that the Party intends to issue its response. To the extent that applicable law may require a response more promptly than is consistent with the above temporal requirement, the parties agree to act in good faith to meet any such requirements.
5. Only by specific written agreement among the Parties or pursuant to Court Order shall disclosure of a designated privileged document or communication be made public or disclosed to a non-Party. Such agreement shall not be construed as a waiver of privilege or confidentiality regarding any other documents or communications.
6. Nothing herein in any way affects or limits the authority of any Party to waive any privilege and release any documents, information analyses, opinion, conclusion, or advice that are subject to privileges held exclusively by that Party.
7. Designated privileged documents shall be maintained in such a manner as to insure that no intentional or unintentional disclosure is made which would compromise any asserted privilege, including segregating designated privileged documents in files that are identified as containing privileged documents that are not to be disclosed publicly or in response to a discovery request in any litigation that may result in connection with the Parties' claims regarding the release of hazardous substances to the Affected Environment.
8. At the request and option of any Party, designated privileged documents shall be returned to the originating Party or destroyed, subject to the provisions of the Federal Records Act, 44 U.S.C. §§ 2901, et. seq.
WISCONSIN DEPARTMENT OF JUSTICE
UNITED STATES DEPARTMENT OF JUSTICE