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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

UNITED STATES OF AMERICA, )

Plaintiff, )

)

v. )

)

AVX CORPORATION, et al ., ) CIVIL ACTION NO. 83-3882-Y

Defendants. )

)

COMMONWEALTH OF MASSACHUSETTS, )

Plaintiff, )

)

v. )

)

AVX CORPORATION, et al ., )

Defendants. )

)

SUPPLEMENTAL CONSENT DECREE WITH DEFENDANT AVX CORPORATION  

This Supplemental Consent Decree ("Supplemental Decree"), upon entry by the Court,

supplements and modifies the Consent Decree with Defendant AVX Corporation that was

entered by this Court on February 3, 1992 with regard to the New Bedford Harbor Site (the

"1992 Consent Decree") by adding new provisions, deleting certain provisions, and revising

certain other provisions, which affect the parties' rights and obligations only on and after the date

of entry of this Supplemental Decree. Except as specifically provided in this Supplemental

Decree, all provisions of the 1992 Consent Decree otherwise remain in full force and effect. The

1992 Consent Decree is attached hereto as Appendix A.  

The 1992 Consent Decree resolved the claims that the United States of America ("United

States") and the Commonwealth of Massachusetts ("Commonwealth") (collectively referred to as

"Plaintiffs") then had against AVX Corporation ("AVX").

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This Supplemental Decree resolves claims that Plaintiffs now seek to assert against AVX,

which claims Plaintiffs contend are authorized or provided for in Paragraphs 16 and 18 of the

1992 Consent Decree.

Together, the 1992 Consent Decree and this Supplemental Decree resolve Plaintiffs'

claims against AVX with regard to the New Bedford Harbor Site except as set forth in these

Decrees.

Introduction  

Subsequent to the entry of the 1992 Consent Decree, the United States Environmental

Protection Agency ("EPA") implemented the remedy for Operable Unit 2 ("OU2") at the Site, as

set forth in the April 6, 1990 Record of Decision ("ROD"), as modified. EPA completed the

work for the OU2 remedy in May 2000.

On September 25, 1998, EPA issued a ROD selecting the remedy for Operable Unit 1

("OU1") at the Site, including the State enhanced remedy. The Commonwealth concurred on the

OU1 selected remedy. The remedy for OU1, as modified, at the Site includes: the dredging and

disposal of contaminated sediment; construction of on-site containment facilities for dredged

sediment contaminated with polychlorinated biphenyls; long-term monitoring and maintenance

of the facilities; long-term monitoring of the Site; and institutional controls.

Following the issuance of the OU1 ROD, from 1999 through 2004, EPA performed

remedial design and remedial action activities. In 2004, EPA began full-scale dredging of

contaminated sediment as part of the OU1 remedy.

Pursuant to a cost-sharing agreement known as the "Superfund State Contract Between

the Commonwealth of Massachusetts and the U.S. Environmental Protection Agency for the

Response Related to the New Bedford Harbor Site Upper and Lower Harbor Operable Unit, New

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Bedford, Massachusetts," last executed on February 28, 2000, as amended, the Commonwealth

has been, inter alia , obligated to fund and has funded a portion of the OU1 remedy that EPA has

performed, and the Commonwealth has been obligated to perform certain operation and

maintenance activities.

The United States and the Commonwealth assert that the conditions giving rise to claims

against AVX, as set forth in the reservations of rights in Paragraphs 16 and 18 of the 1992

Consent Decree, have occurred, thereby allowing Plaintiffs to seek from AVX response costs or

performance of the OU1 remedy.

On April 18, 2012, EPA issued to AVX a Unilateral Administrative Order (Docket No.

CERCLA-01-2012-0045) ("Administrative Order"), pursuant to Section 106 of CERCLA, 42

U.S.C. § 9606, and the 1992 Consent Decree, directing AVX to perform a remedial design and to

implement the remedial design by performing a remedial action and performing operation and

maintenance of such remedial action for the OU1 remedy.

The parties have engaged in good faith negotiations with one another to resolve the

allegations and rights of Plaintiffs under Paragraphs 16 and 18 of the 1992 Consent Decree and

the defenses and rights of AVX regarding Plaintiffs' claims.

The United States, the Commonwealth, and AVX agree, and by modifying the 1992

Consent Decree as provided in this Supplemental Decree, this Court finds that the settlement

memorialized in this Supplemental Decree, without prolonged and complicated litigation and

without the admission or adjudication of any issue of fact or law, is the most appropriate means

of resolving the parties' claims and defenses, will expedite the cleanup of the New Bedford

Harbor Site, and that this Supplemental Decree is fair, reasonable, and in the public interest.

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Upon entry of this Supplemental Decree by this Court, EPA will withdraw the

Administrative Order and AVX will withdraw its Freedom of Information Act requests (to EPA,

the United States Department of Justice and the United States Army Corps of Engineers) and

Massachusetts Public Records Law requests to the Commonwealth (including to the Department

of Environmental Protection).

The parties to the 1992 Consent Decree have entered into this Supplemental Decree

supplementing or modifying certain provisions of the 1992 Consent Decree specifically related

to the claims asserted by Plaintiffs, by adding new provisions, deleting certain provisions, and

revising certain other provisions subject to Court approval, as specified herein.

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, AND DECREED:

This Supplemental Decree supplements or modifies those provisions of the 1992 Consent

Decree as specified herein by adding new provisions, deleting certain provisions, and revising

certain other provisions, which affect the parties' rights and obligations only on and after the date

of entry of this Supplemental Decree. Except as specifically provided in this Supplemental

Decree, all provisions of the 1992 Consent Decree otherwise remain in full force and effect. In

the case of any conflict between the 1992 Consent Decree and this Supplemental Decree, this

Supplemental Decree shall control. Further, nothing in this Supplemental Decree shall limit,

modify or otherwise affect the rights or obligations of any party in either the Administrative

Settlement Agreement and Order on Consent for Non-Time Critical Removal Action (CERCLA

Docket No. 01-2010-0017) between AVX and EPA, effective June 3, 2010, or the Administrative

Consent Order and Notice of Responsibility in the Matter of AVX Corporation, File No. ACO-

SE-09-3P-016, Release Tracking Number 4-0601 between AVX and the Commonwealth. having

an effective date of June 3, 2010.

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Jurisdiction  

1. The United States District Court for the District of Massachusetts ("Court") has

jurisdiction over the subject matter of this action and the parties to this Supplemental Decree

pursuant to 28 U.S.C. §§ 1331 and 1345, Section 113(b) of CERCLA, 42 U.S.C. § 9613(b),

Section 7003 of RCRA, 42 U.S.C. § 6973, Section 504 of the CWA, 33 U.S.C. § 1564, and

Section 13 of the 1899 Act, 33 U.S.C. § 407, and has pendent jurisdiction over the claims arising

under state law. This Court has personal jurisdiction over AVX which, for purposes of this

Supplemental Decree, waives all objections and defenses that it may have to jurisdiction of the

Court or to venue in this District.

Applicability of Supplemental Decree  

2. Paragraph 2 in the 1992 Consent Decree is unchanged except that:

A. In the first sentence of Paragraph 2.A., the location of AVX's executive

offices is changed from "New York, New York" to "Fountain Inn, South Carolina";

B. At the end of the initial clause of the final sentence of Paragraph 2.A., "of

the 1992 Consent Decree and Paragraph 16 of this Supplemental Decree" is inserted after

"Paragraphs 14 and 15" and before the comma; and

C. At the end of Paragraph 2.C. "including the Massachusetts Department of

Transportation, including as successor to Massachusetts Department of Public Works" is inserted

after "permitted by law" and before the period.

3. The provisions of this Supplemental Decree shall apply to and be binding on the

United States and the Commonwealth and on AVX and its successors and assigns. Changes in

the ownership or corporate form or status of AVX shall have no effect on AVX's obligations

under this Supplemental Decree.

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Effect of Settlement  

4. This Supplemental Decree was negotiated and executed by the parties hereto in

good faith to avoid expensive and protracted litigation and is a fair and equitable settlement of

claims which were contested as to validity, liability and amount. Neither this Supplemental

Decree, nor any part thereof, nor the entry into, nor any performance under this Supplemental

Decree by AVX shall constitute or be construed as a finding or admission or acknowledgement

of the factual or legal allegations contained in the Complaints, Administrative Order, or other

pleadings in this case, of any liability, fault or wrongdoing, or evidence of such, or an admission

of violation of any law, rule, regulation, or policy, by AVX, or by its parent company, affiliates,

subsidiaries or related entities, directors, officers, stockholders, employees, agents, assigns,

trustees, contractors, or successors or predecessors (including their respective parent companies,

affiliates, subsidiaries or related entities, directors, officers, stockholders, employees, agents,

assigns, trustees, and contractors), nor shall this Supplemental Decree nor any performance

hereunder create any rights on behalf of any other person not a party to this Supplemental

Decree. AVX expressly reserves any and all rights (including any right to contribution),

defenses, claims, demands, and causes of action which it may have with respect to any matter,

action, event, claim or proceeding relating in any way to the New Bedford Harbor Site (as

hereafter defined) against any other person not a party to this Supplemental Decree. AVX

further specifically reserves the right to contest any allegations in the Complaints, Administrative

Order, or other pleadings in this case, except as otherwise specified herein. Additionally,

pursuant to Section 122(d)(1)(B) of CERCLA, 42 U.S.C. § 9622(d)(1)(B), the fact of AVX's

participation in this Supplemental Decree shall not be admissible in any judicial or

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administrative proceeding other than as provided in this Supplemental Decree, or in a suit for

contribution.

5. Upon approval and entry of this Supplemental Decree by the Court, the 1992

Consent Decree, as modified by this Supplemental Decree, shall constitute a final judgment

between and among Plaintiffs and AVX.

Definitions  

6. This Supplemental Decree incorporates the definitions set forth in Section 101 of

CERCLA, 42 U.S.C. § 9601. In addition, all initially-capitalized terms used herein, unless

defined in this Supplemental Decree, shall have the meaning provided in the 1992 Consent

Decree.

A. "Aerovox Facility" has the same meaning as "Site" in Paragraph 8.ee. of

the Administrative Settlement Agreement and Order on Consent for Non-Time Critical Removal

Action (CERCLA Docket No. 01-2010-0017) between AVX and EPA, effective June 3, 2010,

the text of which is attached hereto as Appendix B.  

B. "New Bedford Harbor Site" or "Site." The definition in the 1992 Consent

Decree is unchanged except that the final sentence is deleted and replaced with "The Site does

not include any portion of the Aerovox Facility."

C. "RODs" means the record of decision for OU2 at the New Bedford Harbor

Site signed on April 6, 1990, and the record of decision for OU1 at the New Bedford Harbor Site

signed on September 25, 1998.

D. "Superfund Interest Rate" means the rate specified for interest on

investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507,

compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The

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applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of

interest is subject to change on October 1 of each year.

Payment Terms  

7. Payments Required Under this Supplemental Decree  

A. AVX shall pay $366,250,000, plus interest, in three payments as specified

herein to Plaintiffs, to resolve Plaintiffs' claims against AVX, which claims Plaintiffs contend

are authorized or provided for in Paragraphs 16 and 18 of the 1992 Consent Decree.

(1) As an initial payment, within thirty (30) days after the date of entry

of this Supplemental Decree, AVX shall pay to Plaintiffs not less than $133,350,000.00,

plus interest on $366,250,000 at the Superfund Interest Rate from August 1, 2012 through

the date of the initial payment.

(2) As a second payment, within one year after the date of entry of this

Supplemental Decree, AVX shall pay to Plaintiffs not less than the amount that makes

the sum of all payments made by AVX through the date of the second payment, exclusive

of all interest payments, total not less than $244,166,666.67, plus interest at the

Superfund Interest Rate on the unpaid balance from the date of the initial payment or, in

the event that one or more prepayment(s) pursuant to Paragraph 7.B. below has been

made during the intervening time period, from the date of the immediately prior payment

through the date of this second payment.

(3) As a third and final payment, within two years after the date of

entry of this Supplemental Decree, AVX shall pay to Plaintiffs not less than the amount

that makes the sum of all payments, exclusive of all interest payments, made by AVX

through the date of the third and final payment equal to $366,250,000, plus interest at the

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Superfund Interest Rate on the unpaid balance from the date of the second payment or, in

the event that one or more prepayment(s) pursuant to Paragraph 7.B. below has been

made during the intervening time period, from the date of the immediately prior payment

through the date of this third and final payment.

B. Notwithstanding the terms of Paragraph 7.A. above, AVX may prepay any

scheduled payment, or portion of any scheduled payment, provided that any prepayment includes

interest at the Superfund Interest Rate on the unpaid balance from the date of the prior payment

through the date of the prepayment.

C. In the event of AVX's failure to make any payment pursuant to Paragraph

7.A. on the date such payment is due, or in the event of AVX's failure to satisfy any of the

Financial Guarantee provisions of Paragraphs 11 through 14 of this Supplemental Decree,

Plaintiffs jointly or individually may, without notice or demand, declare the entire unpaid

balance and any accrued interest and stipulated penalties then unpaid immediately due and

payable.

8. Payments pursuant to Paragraph 7 of this Supplemental Decree shall be made to

EPA by Fedwire Electronic Funds Transfer ("EFT") to:

Federal Reserve Bank of New York

ABA = 021030004

Account = 68010727

SWIFT address = FRYNUS33

33 Liberty Street

New York, NY 10045

Field Tag 4200 of Fedwire message should read "D 68010727 Environmental Protection Agency"

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9. At the time of any payment, AVX shall send notice that payment has been made

to:

A.

B.

C.

EPA Region 1 by email at stanley.elainet@epa.gov, and by mail to:

Elaine T. Stanley

Remedial Project Manager

United States Environmental Protection Agency

Region 1, New England

5 Post Office Square, Suite 100

Boston, MA 02109

EPA Cincinnati Finance Office by email at

acctsreceivable.cinwd@epa.gov, or by mail to:

EPA Cincinnati Finance Office

26 Martin Luther King Drive

Cincinnati, Ohio 45268

Commonwealth recipients:

By mail to:

Office of the Attorney General

Chief, Environmental Protection Division

One Ashburton Place

Boston, MA 02108

and

Chief Financial Officer

MassDEP

One Winter Street Boston, MA 02108

and by e-mail to paul.craffey@state.ma.us.

Any notice of payment shall refer to Site/Spill ID Number 0143 and Department of

Justice case number 90-11-2-32/2 for this action, case name: United States and Commonwealth

of Massachusetts v. AVX Corporation, et al., and to MassDEP Release Tracking Number 4-

0000122.

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10. Any payments received by EPA, on behalf of Plaintiffs, pursuant to Paragraph 7

above shall be deposited by EPA in the New Bedford Harbor Reopener Special Account to be

retained and used to conduct or finance future response actions at or in connection with the Site.

If response actions are completed and funds remain in the Special Account, Plaintiffs shall

distribute the remaining balance towards their past costs at the Site, pursuant to an agreement

between Plaintiffs. If response actions are complete and all past costs have been reimbursed, and

all obligations under said agreement between Plaintiffs have been satisfied, remaining funds may

be transferred to the EPA Hazardous Substance Superfund.

Financial Guarantee  

11. AVX shall establish and maintain a financial guarantee in the amount of the

outstanding balance due under this Supplemental Decree following AVX's initial payment

pursuant to Paragraph 7.A.(1) above, plus accrued and unpaid interest, if any, at the Superfund

Interest Rate starting on August 1, 2012, for the sole benefit of Plaintiffs until the final payment

is made under Paragraph 7.A.(3) above. Any payments made pursuant to the Financial

Guarantee provisions in Paragraphs 11 through 14 of this Supplemental Decree shall be paid to

Plaintiffs in accordance with Paragraphs 8 and 9 above, and shall be deposited in accordance

with Paragraph 10 above, to be retained and used as provided therein. The financial guarantee,

which must be satisfactory in form and substance to Plaintiffs, shall be in the form of one or

more of the following mechanisms (provided that, if AVX intends to use multiple mechanisms,

such multiple mechanisms shall be limited to surety bonds guaranteeing payment, letters of

credit, trust funds, and insurance policies):

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A. A surety bond unconditionally guaranteeing payment that is 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;

B. One or more irrevocable letters of credit, payable to or at the direction of

Plaintiffs, that is issued by one or more financial institution(s) (1) that has the authority to issue

letters of credit and (2) whose letter-of-credit operations are regulated and examined by a federal

or state agency;

C. A trust fund established for the benefit of Plaintiffs, that is administered

by a trustee (1) that has the authority to act as a trustee and (2) whose trust operations are

regulated and examined by a federal or state agency;

D. A policy of insurance that (1) provides Plaintiffs with acceptable rights as

a beneficiary thereof, and (2) is issued by an insurance carrier (i) that has the authority to issue

insurance policies in the applicable jurisdiction(s), and (ii) whose insurance operations are

regulated and examined by a federal or state agency;

E. A demonstration by AVX that it meets the financial test criteria of

40 C.F.R. § 264.143(f), provided that all other requirements of 40 C.F.R. § 264.143(f) are met to

Plaintiffs' satisfaction; or

F. A written guarantee executed in favor of Plaintiffs, by one or more of the

following: (1) a direct or indirect parent company of AVX, or (2) a company that has a

"substantial business relationship" (as defined in 40 C.F.R. § 264.141(h)); provided, however,

that any company providing such a guarantee must demonstrate to the satisfaction of Plaintiffs

that it satisfies the financial test and reporting requirements for owners and operators set forth in

subparagraphs (1) through (8) of 40 C.F.R. § 264.143(f) that it proposes to guarantee hereunder.

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12. AVX has selected and Plaintiffs have found satisfactory, as an initial financial

guarantee, the financial test pursuant to Paragraph 11.E. above in the form attached hereto as

Appendix C.1. Within ten (10) days after the date of entry of this Supplemental Decree, AVX

shall execute or otherwise finalize all instruments or other documents required in order to make

the selected financial guarantee(s) legally binding in a form substantially identical to the

document attached hereto as Appendix C.1., and such financial guarantee(s) shall thereupon be

fully effective. Within thirty (30) days after the date of entry of this Supplemental Decree, AVX

shall submit copies of all executed and/or otherwise finalized instruments or other documents

required in order to make the selected financial guarantee(s) legally binding to the EPA Regional

Financial Management Officer at 5 Post Office Square, Suite 100, Boston, MA 02109, with a

copy to the Regional Administrator at the same address. AVX shall simultaneously submit to

Chief Financial Officer, MassDEP, One Winter Street, Boston, MA 02108 a duplicate copy of all

submittals to EPA made pursuant to this Paragraph.

13. If, at any time after the date of entry of this Supplemental Decree, AVX provides

a financial guarantee by means of a demonstration pursuant to Paragraph 11.E., AVX shall

effect, in accordance with the requirements of 40 C.F.R. § 264.143(f), the following:

A. The initial submission of required financial reports and statements from

AVX's chief financial officer ("CFO") and independent certified public accountant ("CPA"), in

the forms attached hereto as Appendices C.1. and C.3., respectively;

B. The annual resubmission of such documents within ninety (90) days after

the close of AVX's fiscal year in the forms attached hereto as Appendices C.2. and C.3.;  

C. The prompt notification of EPA after AVX determines that it no longer

satisfies the financial test requirements set forth at 40 C.F.R. § 264.143(f)(1), and in any event

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within ninety (90) days after the close of any fiscal year in which AVX no longer satisfies such

financial test requirements; and

D. In addition to the initial submission and annual resubmissions from

AVX's CFO pursuant to Paragraphs 13.A. and 13.B. above, quarterly certifications (based on the

most recent financial statements and in the form attached hereto as Appendix C.4.) indicating

that, based on a reasonable inquiry, the CFO is not aware of any transactions or events likely to

arise within the next reporting period that would materially impair AVX's ability to make the

payments on the outstanding balance. AVX shall simultaneously submit to MassDEP at the

address provided in Paragraph 12 above a duplicate copy of all submittals to EPA made pursuant

to this Paragraph.

14. In the event that Plaintiffs determine at any time that a financial guarantee

provided by AVX under Paragraph 11.E. above is inadequate based on the requirements of

40 C.F.R. § 264.143(f) and the Financial Guarantee provisions in Paragraphs 11 through 13 of

this Supplemental Decree, or in the event that AVX becomes aware of information indicating

that a financial guarantee provided is inadequate or otherwise no longer satisfies the

requirements due to any other reason, AVX, within thirty (30) days after receipt of notice of

Plaintiffs' determination or, as the case may be, within thirty (30) days after AVX becomes

aware of such information, shall obtain and present to Plaintiffs for approval a proposal for a

revised or alternative form of financial guarantee listed in Paragraph 11 above that satisfies all

requirements set forth in that Paragraph; provided, however, that if AVX cannot obtain such

revised or alternative form of financial guarantee within such 30-day period, and provided

further that AVX shall have commenced to obtain such revised or alternative form of financial

guarantee within such 30-day period, and thereafter diligently proceeds to obtain the same,

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Plaintiffs shall extend such period for such time as is reasonably necessary for AVX in the

exercise of due diligence to obtain such revised or alternative form of financial guarantee, such

additional period not to exceed thirty (30) days.

Covenants Not To Sue By Plaintiffs  

15. In consideration of the payments made pursuant to Paragraph 7 above, and except

as specifically provided in Paragraphs 19, 20.A. and 20.B. of the 1992 Consent Decree and

Paragraph 16 of this Supplemental Decree:

A. The United States and the Commonwealth covenant not to sue or to take

any other civil judicial or administrative action against AVX as authorized or provided for in

Paragraphs 16, 17, and 18 of the 1992 Consent Decree;

B. The United States and the Commonwealth further covenant not to sue or

to take any other civil judicial or administrative action against AVX for claims reserved by

Plaintiffs in Paragraphs 20.C. and 20.D. of the 1992 Consent Decree, subject to the further

exception of the reservations set forth in Paragraphs 16.C. and 16.D. below; and

C. Furthermore, the last two sentences of Paragraph 14 of the 1992 Consent

Decree shall be deleted and the following sentence added: "These covenants not to sue shall take

effect upon receipt by the Plaintiffs of the payments required in Paragraphs 7-13 above."

D. The covenants not to sue set forth in Paragraphs 15.A. and 15.B. above,

and the modification to Paragraph 14 of the 1992 Consent Decree set forth in Paragraph 15.C.

above, shall take effect upon AVX's payment of all monetary amounts including interest that are

required pursuant to Paragraph 7 above and payment of all interest accrued on late payments and

accrued stipulated penalties described in Paragraph 18 below, if any.

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16. As to the covenants not to sue in Paragraph 15 above, the United States and the

Commonwealth reserve all rights against AVX with respect to all matters other than those

expressly specified in Paragraph 15 above, including:

A. Claims based on a failure by AVX to satisfy the requirements of this

Supplemental Decree;

B. Claims for criminal liability;

C. Claims arising from the past, present, or future disposal, release or threat

of release of hazardous substances or oil or hazardous materials outside of the New Bedford

Harbor Site; and

D. Claims arising from the past, present, or future disposal, release or threat

of release of hazardous substances or oil or hazardous materials taken from the New Bedford

Harbor Site (but excluding claims arising from the past, present, or future disposal, release or

threat of release of hazardous substances or oil or hazardous materials taken from the New

Bedford Harbor Site after the date of entry of this Supplemental Decree consistent with Section

122(f)(2)(A) of CERCLA, 42 U.S.C. § 9622(f)(2)(A)).

Covenants by Defendant AVX  

17. A. Paragraph 21 in the 1992 Consent Decree is deleted in its entirety and is

replaced with Paragraphs 17.B. through 17.E. in this Supplemental Decree.

B. AVX hereby releases and covenants not to sue or assert any claims, or to

bring any administrative action, against the United States or the Commonwealth for any claims

arising from the New Bedford Harbor Site or any response actions taken at the Site, including

but not limited to the counterclaims asserted in AVX's Answers to the Complaints, and including

but not limited to any direct or indirect claim pursuant to Section 112 of CERCLA, 42 U.S.C.

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§ 9612, or pursuant to any other statute, regulation, common law, or legal theory, against the

Hazardous Substances Superfund, for reimbursement relating to the New Bedford Harbor Site,

provided, however, that: (i) in the event that Plaintiffs institute proceedings against AVX

pursuant to Paragraph 19 of the 1992 Consent Decree, AVX reserves the right to reassert the

counterclaim against the U.S. Army Corps of Engineers as set forth in its Answer to the

Complaints solely as, and to the extent of, a setoff against the claims asserted by Plaintiffs; and

(ii) as described in Paragraph 17.E. of this Supplemental Decree, AVX reserves its rights as set

forth in Paragraph 17.E. of this Supplemental Decree. AVX hereby releases and covenants not

to sue or assert any claims, or to bring any administrative action against the United States or the

Commonwealth arising out of the implementation of the RODs, as modified, including the State

enhanced remedy. Nothing in this Supplemental Decree shall be deemed to constitute

preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611.

C. AVX waives any rights it may have to seek judicial or administrative

review of the RODs, as modified, and of any actions taken to implement the RODs, as modified ,  

including the State enhanced remedy. AVX further waives any direct or indirect claim relating

to the New Bedford Harbor Site pursuant to M.G.L. c. 30, §§ 61-62H and 301 C.M.R. § 11.00 et

seq.

D. AVX waives any rights it may have to seek a setoff or offsets pursuant to

Paragraph 22 of the 1992 Consent Decree; accordingly Paragraph 22 of the 1992 Consent Decree

is deleted.

E. To the extent that the United States or the Commonwealth assert a claim

against AVX for non-compliance with the terms of this Supplemental Decree, AVX reserves its

rights and defenses arising from that claim.

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Stipulated Penalties  

18. A. If any payment required by Paragraph 7 of this Supplemental Decree is not

made by the date specified in that Paragraph, AVX shall be liable to the United States for interest

on 90% of the overdue amount(s), from the time payment was due until full payment is made, at

the higher of (1) the rate established by the Department of the Treasury under 31 U.S.C. § 3717

and 4 C.F.R. § 102.13, or (2) ten percent per annum, and AVX shall be liable to the

Commonwealth for interest on 10% of the overdue amount(s), from the time payment was due

until full payment is made, at the rate set forth in Section 13 of Chapter 21E, Massachusetts

General Laws.

B. If any payment required by Paragraph 7 of this Supplemental Decree is not

made by the date specified therein, AVX shall pay stipulated penalties in the following amounts

for each day of each and every violation of said requirements:

Days of Delay   Penalty Per Violation Per Day  

1-14 $25,000/day

15-30 $50,000/day

Beyond 30 Days $75,000/day

C. Stipulated penalties due to Plaintiffs under this Supplemental Decree shall

be paid 90% to the United States and 10% to the Commonwealth. Payments to the United States

shall be made to the United States Treasury according to EFT instructions to be provided to

AVX at the time Stipulated Penalties arise. Payments due to the Commonwealth for accrued

interest on late payments and for accrued stipulated penalties shall be made to the Office of the

Attorney General, with a copy of such payment to MassDEP, at the addresses listed in Paragraph

9.C. above.

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D. Interest and stipulated penalties shall accrue from the due date of the

payment regardless of whether Plaintiffs have notified AVX of the overdue payment. AVX shall

pay any accrued interest on late payments or stipulated penalties that have accrued within fifteen

(15) days after receipt of a demand by the United States or the Commonwealth for payment.

Such demand shall be sent by certified or express mail to: Chief Financial Officer, AVX

Corporation, 1 AVX Boulevard, Fountain Inn, SC 29644. A copy of any demand shall be sent to

counsel for AVX to: Mary K. Ryan and Gary L. Gill-Austern, Nutter, McClennen & Fish,

Seaport West, 155 Seaport Boulevard, Boston, MA 02210. Interest under and stipulated

penalties under this Paragraph do not preclude Plaintiffs from seeking any other remedies or

sanctions that may be available to them on account of AVX's failure to comply with the terms of

this Supplemental Decree.

E. In calculating its income tax, AVX shall not deduct any penalties under

this Supplemental Decree pursuant to this Paragraph 18.

Retention of Response Authority  

19. This Supplemental Decree shall not be construed to limit the authority of the

United States or the Commonwealth to take any and all response actions relating to the New

Bedford Harbor Site authorized by federal or state law.

Compliance with Other Laws  

20. This Supplemental Decree shall not be construed to in any way to relieve AVX or

any other person or entity from the obligation to comply with any federal, state or local law.

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Retention of Jurisdiction  

21. The Court shall retain jurisdiction of this matter between Plaintiffs and AVX for

the purpose of entering such further orders, direction, or relief as may be appropriate for the

construction, implementation, or enforcement of this Supplemental Decree.

Public Comment  

22. This Supplemental Decree shall be subject to a 30-day public comment period

consistent with Section 122(d)(2) of CERCLA, 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7.

The United States reserves the right to withdraw or withhold its consent if comments regarding

this Supplemental Decree disclose facts or considerations which indicate that this Supplemental

Decree is inappropriate, improper or inadequate. In the event of the United States' withdrawal

from this Supplemental Decree, the Commonwealth reserves its right to withdraw from this

Supplemental Decree. The Commonwealth also reserves the right to withdraw or withhold its

consent to the entry of this Supplemental Decree if comments received disclose facts or

considerations which show that this Supplemental Decree violates State law. In the event of the

Commonwealth's withdrawal from this Supplemental Decree, the United States reserves its right

to withdraw from this Supplemental Decree. AVX consents to the entry of this Supplemental

Decree without further notice.

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THE FOREGOING Supplemental Decree among plaintiffs the United States of America

and the Commonwealth of Massachusetts and defendant AVX Corporation in United States v.  

AVX Corporation, Civ. No. 83-3882-Y (D. Mass.), is hereby

APPROVED AND ENTERED THIS DAY OF , 201_.

__________________________________

United States District Judge

District of Massachusetts

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SUPPLEMENTAL CONSENT DECREE:Civ. No.83-3882-Y(D.Mass.)

FOR THE UNITED STATES:

IGNIA S. MORENO

Assi nt Attorney General

Environment and Natural Resources Division

U.S.Department ofJustice

~~~

_o

JEROME W.MacLAUGHLIN

KEITH T.TASHIMA

BRADLEY L.LEVINE

Trial Attorneys

Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department ofJustice

P.O.Box 7611

Ben Franklin Station

Washington,D.C.20044

CARMEN M.ORTIZ

United States Attorney for the

District ofMassachusetts

JENNIFER SERAFYN

Assistant United States Attorney

District ofMassachusetts

John Joseph Moakley Federal Courthouse

1 Courthouse Way,Suite 9200

Boston, MA 02210

22

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SUPPLEMENTAL CONSENT DECREE: Civ. No. 83-3882-Y (D.Mass.)

FOR THE COMMONWEALTH OF MASSACHUSETTS:

MATTHEW BROCK

Assistant Attorney General

Environmental Protection Division

One Ashburton Place

Boston, Massachusetts 02108

447

KENINT KIMMELL

Commissioner

Department of Environmental Protection

Commonwealth of Massachusetts

One Winter Street

Boston, Massachusetts 02108

Case 1:83-cv-03882-WGY Document 2617-1 Filed 10/10/12 Page 25 of 26

SUPPLEMENTAL CONSENT DECREE: Civ. No. 83-3882-Y (D.Mass.)

FOR AVX CORPORATION:

KURTP. CUMMINGS

Chief Financial Officer, Vice President,

Treasurer and Secretary

AVX Corporation

1 AVX Boulevard

Fountain Inn, SC 29644

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Appendix A —

Appendix B —

Appendix C —

APPENDICES  

1992 Consent Decree

Paragraph 8.ee. from Administrative Settlement Agreement and Order on

Consent for Non-Time Critical Removal Action (CERCLA Docket No. 01-

2010-0017) between AVX and EPA, effective June 3, 2010

Financial Assurance Forms

C.1. Form of Initial Submission C.2.              Sample CFO Letter C.3.              Sample CPA Report

C.4. Form of Quarterly Certification

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APPENDIX A

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Case 1:83-cv-03882-WGY Document 2617-3 Filed 10/10/12 Page 1 APPENDIX B of 3

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APPENDIX C.2.

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APPENDIX C.3.

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