[PROPOSED] CONSENT DECREE - NRDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

MAINE PEOPLE’S ALLIANCE and ) NATURAL RESOURCES DEFENSE ) COUNCIL, INC., ) ) Plaintiffs, ) ) v. ) Case No. 1:00-cv-00069-JAW ) HOLTRACHEM MANUFACTURING ) COMPANY, LLC and ) MALLINCKRODT US LLC, ) ) Defendants. ) )

[PROPOSED] CONSENT DECREE

Case 1:00-cv-00069-JAW Document 1114-1 Filed 03/19/21 of 94 PageID #:17501

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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 ................... 62

X. Limitations on Liability and Indemnifications ......................................................... 63

XI. Covenants ...................................................................................................................... 67

XII. Additional Agreements Between the Parties ........................................................... 69

XIII. Reservations of Rights ................................................................................................. 77

XIV. Dispute Resolution ....................................................................................................... 77

XV. Notice ............................................................................................................................. 80

XVI. Miscellaneous Provisions ............................................................................................ 82

XVII. Retention of Jurisdiction .............................................................................................. 88

XVIII. Final Judgment .............................................................................................................. 88


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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.


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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


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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


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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


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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


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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.


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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 68). 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.


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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


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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.


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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.


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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.


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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.


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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.


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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 Squaw 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.


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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


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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


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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


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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,


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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 27-40, Section IX (Cooperation and Obligations of

the Parties Regarding the Trustee), Paragraphs 41-42, and Section XI (Covenants),

Paragraphs 46-49, 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.


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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).


21

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


22

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


23

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


24

$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.


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


25

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.


26

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 56 through 61

(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).


27

15. Trust Administrative Costs.


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


28

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


29

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, 2021, Mallinckrodt will pay to the Trusts

an additional aggregate amount of $15 million.

d. On or before December 31 in the years 2022 through 2026,

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


30

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, 2027, 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


31

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 62 (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


32

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 62 (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


33

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


34

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 62 (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


35

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 56 through 61 (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 62 (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


36

Paragraphs 56 through 61 (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


37

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


38

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


39

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.


40

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


41

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


42

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.


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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.


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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 48, Plaintiffs and

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


45

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.

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).


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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.


47

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


48

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


49

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.


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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


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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


52

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


53

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


54

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.


55

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


56

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


57

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


58

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.


59

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


60

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. 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


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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.

38. 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.

39. 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


62

this Consent Decree, a Trust Agreement, or the Statement of Work, subject to the dispute

resolution and modification terms in Paragraphs 56 through 61 and 67 (Dispute

Resolution; Modifications).

40. 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.

41. 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


63

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.

42. 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.

43. 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.


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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


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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


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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 43(d).

44. 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.


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45. 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

46. Except as provided in Paragraph 53 (Plaintiffs’ Attorneys’ Fees and Costs)

and Paragraphs 56 through 61 (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


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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.

47. Except through the Dispute Resolution provisions in Paragraphs 56

through 61 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.


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48. 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.

49. 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

50. 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


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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.

51. 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


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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


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tomalley, blue mussels, and cormorants, were elevated. ECF No. 147 at

17-20;

xi. The Court found in 2002 that individuals who lived on or near

the Penobscot River suffered injuries fairly traceable to the mercury

discharged from the HoltraChem Site, including from elevated levels of

mercury in fish and shellfish. Id. at 26-27;

xii. In November 2003, the Court ordered the creation of a Study

Panel to conduct a two-phase study of mercury in the Penobscot River

Estuary. ECF No. 159;

xiii. The purpose of the study was to determine the following: (1)

the extent of the existing harm resulting from mercury contamination to the

Penobscot River Estuary south of the HoltraChem Site; (2) the need for and

feasibility of a remediation plan to effectively address the present effects of

such existing harm, if any; and (3) the elements of and timetable for the

execution of the appropriate remediation plan to address the harm existing

as a result of mercury contamination. Id. at 1-2;

xiv. Among the questions the Study Panel was charged with

answering was whether mercury in the Penobscot River Estuary was

“having significantly adverse effects on populations of organisms” in the

Penobscot River Estuary. Id. at 2;

xv. The Study Panel submitted a 117-page report (“Phase I

Report”) on January 25, 2008. ECF No. 382. The Phase I Report concluded


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that the Penobscot River Estuary was “contaminated with [mercury] to an

extent that poses endangerment to some wildlife species and possibly some

limited risk for human consumers of fish and shellfish.” Id. at 5. It further

concluded that the data justified the study proceeding to a second phase.

Id.;

xvi. In March 2008, the Court ordered the Study Panel to proceed

to its second phase (the “Phase II Study”) to address “whether it is

necessary and feasible to ameliorate mercury and the methylation of

mercury in the Penobscot River now and in the future by means that will

exceed the benefits likely to be had by allowing the natural attenuation

processes in operation in the River to accomplish over time and, if so, what

reasonable human processes will accomplish that end.” ECF No. 390;

xvii. The Study Panel submitted its Phase II Report on April 19,

2013. ECF Nos. 652-1–652-65;

xviii. The Plaintiffs and Mallinckrodt each filed objections to the

Phase II Report. ECF Nos. 663, 664;

xix. The Court dismissed the objections, preferring to address the

challenges in the course of the anticipated bench trial. ECF No. 721;

xx. The Court held a bench trial between June 3, 2014 and June

27, 2014 to hear testimony and evaluate the findings and recommendations

in the Phase II Report;


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xxi. As a result of the 2014 trial, the Court found that the mercury

contamination of the Penobscot River Estuary caused by Mallinckrodt

continued to present an imminent and substantial endangerment to human

health and the environment. ECF No. 829 at 39;

xxii. The Court ordered that an engineering firm be appointed to

investigate the feasibility of potential remedies to the mercury

contamination. Id. at 1, 61;

xxiii. In January 2016, the Court selected Amec to perform an

evaluation of potential active remedies to speed the recovery of the

Penobscot River estuary from its state of mercury contamination. ECF Nos.

836, 845;

xxiv. In September 2018, Amec completed its Phase III Engineering

Study Report containing the conclusions of its evaluation, which was filed

with the Court in October 2018. ECF Nos. 972—972-2;

xxv. Throughout Phases I, II, and III, various State of Maine and

federal government agencies were kept apprised of the studies and had

involvement in various aspects of the studies;

xxvi. In 2011, the Maine Department of Inland Fisheries and

Wildlife advised that pregnant women and young children not consume

waterfowl from Mendall Marsh due to elevated mercury levels found in the

tissue of black duck taken from Mendall Marsh;


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xxvii. By emergency and permanent rulemakings in 2014, the Maine

Department of Marine Resources closed an area of the upper Penobscot

estuary to lobster and crab fishing due to elevated levels of mercury found

in lobster tissue taken from the closed area. ECF No. 829 at 52-53. By

emergency and permanent rulemakings in 2016, the Department of Marine

Resources expanded the closed area; and

xxviii. Despite continuing scientific uncertainties, the Work required

by this Consent Decree, and the Court’s injunction to require such Work, is

appropriate, and reasonably calculated to accelerate the recovery of the

Penobscot River Estuary and thereby ameliorate the endangerment that is

presented or may be presented by mercury contamination in the Penobscot

River Estuary.

b. To the fullest extent allowed by law, it is the intent of the Parties and

the Court that the Work required by this Consent Decree will not be interfered

with or delayed by later causes of action.

c. As provided in Paragraph 74 (Retention of Jurisdiction), the Court

shall retain jurisdiction over this matter and this Consent Decree, including

jurisdiction to issue all writs necessary or appropriate to effectuate and preserve

the integrity of this Court’s injunction, this Consent Decree, and the Work ordered

herein.

d. Mallinckrodt reserves all defenses permitted to it by law as to other

causes of action regarding mercury contamination at the Site. Such defenses may


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include, but are not limited to: (i) statutes of limitations, including any that may

have been triggered by the public disclosures of conditions at the Site in this

matter; (ii) laches; (iii) issue or claim preclusion; (iv) the contribution bars

provided by CERCLA, 42 U.S.C. § 9613(f)(2), the Uniform Comparative Fault Act,

and/or federal common law, as interpreted and expanded in subsequent judicial

decisions; and (v) the right to seek relief from this Court to enjoin any action

seeking relief that would interfere with the integrity of this Consent Decree.

52. The Parties agree to make best efforts to cooperate with one another to

secure the Court’s endorsement of this Consent Decree and then to ensure prompt and

effective implementation of the remedies set forth in this Decree. To the extent

practicable, the Parties will work together regarding any public notice, outreach,

comment process, and/or hearing that the Court may prescribe as part of the Court’s

review of this Consent Decree. The Parties intend that a spirit of cooperation will endure

through the life of the Consent Decree and inform their conduct in connection with

implementing the terms of the Consent Decree.

53. Plaintiffs’ Attorneys’ Fees and Costs. The Parties will make best efforts to

resolve through a separate agreement Plaintiffs’ claims for recovery of reasonable

attorneys’ fees, expert fees, and costs from Mallinckrodt. The Parties agree to resolve any

dispute concerning Plaintiffs’ recovery of reasonable attorneys’ fees, expert fees, and

costs, including any dispute arising from such separate agreement, through the Dispute

Resolution procedures in Section XIV of this Consent Decree. Should this issue be

submitted for Dispute Resolution, the Parties reserve their respective rights, defenses,


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and claims. The Court’s retention of jurisdiction to enforce the terms of this Consent

Decree extends to the issue of recovery of Plaintiffs’ attorneys’ fees, expert fees, and costs.

XIII. Reservations of Rights

54. Mallinckrodt reserves all rights, defenses, claims, and causes of action that

it may have with respect to any matter relating to this Consent Decree against any third

party or person not party to this Consent Decree, including the right to seek contribution

from other potentially responsible parties, excluding the Trusts, Trustees, and Trust

Parties.

55. Plaintiffs reserve all rights, defenses, claims, and causes of action that they

may have with respect to any matters related to this Consent Decree against any third

parties or other persons not party to this Consent Decree, except the Trusts, Trustees, and

Trust Parties. Plaintiffs reserve all rights, defenses, claims, and causes of action that they

may have with respect to matters unrelated to this Consent Decree. Except as provided

in Paragraph 47, this Consent Decree does not limit Plaintiffs’ rights to communicate with

their members and the public regarding this matter, this Consent Decree, the Site, the

HoltraChem Site, or related matters.

XIV. Dispute Resolution

56. Enforcement. Plaintiffs shall have the right to enforce the obligations of

Mallinckrodt under this Consent Decree to fund the Trusts. This right exists regardless of

whether rights of enforcement against the Trusts, Trustees, or any other entity are

provided in this Consent Decree or by other agreements.


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57. Dispute Resolution Generally. Disputes between the Parties arising under

this Consent Decree, including but not limited to any enforcement actions by Plaintiffs

under Paragraph 56, shall be resolved by following sequentially the informal dispute

resolution, mediation, and, if necessary, formal dispute resolution procedures in this

Section. Unless otherwise expressly provided herein, the dispute resolution procedures

of this Section shall be the exclusive mechanism to resolve disputes between the Parties

arising under this Consent Decree, including disputes regarding the meaning or

enforcement of its terms.

58. Informal Dispute Resolution

a. A dispute shall be considered to have arisen as of the date at the Site

when one Party or a Trustee sends to the other Parties and/or a Trustee a written

Notice of Dispute. The Trustees shall be included in Dispute Resolution

procedures only to the extent the dispute relates to a duty, obligation, or right of

the Trustees, Trusts, and/or Trust Parties under this Consent Decree.

b. Any dispute regarding this Consent Decree shall in the first instance

be the subject of informal negotiations between the Parties and, if necessary, the

affected Trustee(s), to attempt to resolve the dispute cooperatively. The period for

informal negotiations shall not exceed twenty (20) calendar days from the date the

dispute arises, unless the parties to the dispute mutually agree to modify that

period by written agreement.


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59. Mediation

a. Any dispute that cannot be resolved by the Parties and, if applicable,

the Trustee(s), through informal negotiations shall be presented to a Magistrate

Judge of the Court for mediation. The Party that raised the dispute shall give

written notice to the Magistrate Judge, other Parties and, if applicable, the

Trustee(s). Such written notice shall describe the dispute, the Party’s position, and

the informal negotiations that have taken place so far, and shall be transmitted to

the Magistrate Judge within three (3) business days after the expiration of the

informal negotiation period in Paragraph 58(b).

b. Upon receiving written notice that a dispute has arisen that the

Parties and, if applicable, the Trustee(s), have been unable to resolve informally,

the Magistrate Judge shall, as promptly as possible, mediate the dispute. In doing

so the Magistrate Judge may prescribe such procedures as the Magistrate Judge

deems appropriate. The precise schedule of the mediation proceedings shall be at

the discretion of the Magistrate Judge, but the Magistrate Judge shall endeavor to

mediate the dispute within thirty (30) days after the Magistrate Judge receives

notice of the dispute. The Parties, and, if applicable, the Trustee(s), shall cooperate

fully with any procedures, processes, and requirements that the Magistrate Judge

may set for the mediation proceedings.

60. Formal Dispute Resolution

a. In the event of a dispute that cannot be resolved by the informal

negotiation and mediation specified in Paragraphs 58 and 59, any Party or, if


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applicable, Trustee may request that the Court formally refer the dispute to the

Magistrate Judge for resolution. The Magistrate Judge’s referral shall be filed

publicly on the Court’s docket and shall be treated as a pretrial matter referred to

the Magistrate Judge under Federal Rule of Civil Procedure 72.

b. For any disputes presented to the Court, the Parties shall not oppose,

and may jointly propose, expedited briefing if briefing is necessary.

61. Stays Pending Dispute Resolution. The invocation of dispute resolution

procedures under this Section does not extend, postpone, stay, or affect in any way any

obligation of Mallinckrodt or the Trustees under this Consent Decree, except as mutually

agreed in writing by the Parties or ordered by the Court or Magistrate Judge. In any event,

if a stay is issued pursuant to this Paragraph as to an element of a Deliverable that is

severable from other related elements, continued progress on the related elements shall

not be stayed or otherwise delayed by the dispute.

XV. Notice.

62. Notice. When a notice, comment, objection, submission, report, or request

is to be given or is allowed under this Consent Decree, either by a Party or Trustee, such

notice, comment, objection, submission, report, or request shall be written, shall be

conveyed electronically by email, and shall be provided at the same time to the

designated representatives of all of the Parties and the applicable Trustee(s). The Parties

and Trustees shall give notice if their designated representatives change or have a change

in contact information. As of the Effective Date, the designated representatives are:


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a. For Plaintiffs:

i. Mitchell Bernard, NRDC, 40 West 20th Street, New York, NY

10011; (212) 727‐4469; [email protected].

ii. Jared Thompson, NRDC, 1152 15th Street NW, Suite 300,

Washington, DC 20005; (202) 513-6249; [email protected].

b. For Mallinckrodt:

i. Patricia Hitt Duft, on behalf of Mallinckrodt US LLC, 710

Medtronic Parkway, LC 300, Minneapolis, MN 55432; (314) 753-0413;

[email protected].

ii. Jeffrey Talbert, Preti Flaherty, One City Center, Portland, ME

04112; (207) 791-3000; [email protected].

iii. Lisa Palin, Tax Director, Medtronic, 15 Hampshire St.,

Mansfield, MA 02048; (508) 542-4272; [email protected].

c. For the Greenfield Penobscot Estuary Remediation Trust LLC:

i. Cynthia Brooks, Greenfield Penobscot Estuary Remediation

Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street,

Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected].

ii. Lauri Gorton, Greenfield Penobscot Estuary Remediation

Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes

Street, Milwaukee, WI 53207; (414) 732-4514; [email protected].


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iii. Craig Kaufman, Greenfield Penobscot Estuary Remediation

Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street,

SE, Washington, DC 20003; (215) 837-3702; [email protected].

d. For the Greenfield Penobscot Estuary Project Trust LLC:

i. Cynthia Brooks, Greenfield Penobscot Estuary Project Trust

LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit

1, Cambridge, MA 02138; (617) 448-9762; [email protected].

ii. Lauri Gorton, Greenfield Penobscot Estuary Project Trust

LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes

Street, Milwaukee, WI 53207; (414) 732-4514; [email protected].

iii. Craig Kaufman, Greenfield Penobscot Estuary Project Trust

LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE,

Washington, DC 20003; (215) 837-3702; [email protected].

XVI. Miscellaneous Provisions

63. Force Majeure

a. For purposes of this Consent Decree, a “Force Majeure-Affected

Entity” may include Mallinckrodt or a Trustee, and shall refer to whichever entity

having obligations under this Consent Decree asserts that a Force Majeure has

occurred. “Force Majeure,” for purposes of this Consent Decree, is defined as any

event arising from causes beyond the control of a Force Majeure-Affected Entity,

of any entity controlled by a Force Majeure-Affected Entity, or of any contractor

hired by a Force Majeure-Affected Entity that delays or prevents the performance


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of any obligation under this Consent Decree despite the Force Majeure-Affected

Entity’s reasonable efforts to fulfill the obligation. The requirement that a Force

Majeure-Affected Entity exercise “reasonable efforts to fulfill the obligation”

includes using reasonable efforts to anticipate any potential Force Majeure and

using reasonable efforts to address the effects of any potential Force Majeure as it

is occurring and following the potential Force Majeure such that the delay and any

adverse effects of the delay are minimized to the greatest extent possible. “Force

Majeure” does not include insufficient funds to complete the Work.

b. If any event occurs or has occurred that may delay the performance

of any obligation under this Consent Decree for which a Force Majeure-Affected

Entity intends or may intend to assert a claim of Force Majeure, the Force Majeure-

Affected Entity shall notify the Parties within three (3) days of when the Force

Majeure-Affected Entity first knew that the event may cause a delay. Within seven

(7) days after providing such notice, the Force Majeure-Affected Entity shall

provide in writing to the Parties an explanation and description of the reasons for

the delay; the anticipated duration of the delay; all actions taken or to be taken to

prevent or minimize the delay; a schedule for implementation of any measures to

be taken to prevent or mitigate the delay or the effect of the delay; the Force

Majeure-Affected Entity’s rationale for attributing such delay to a Force Majeure;

and a statement as to whether, in the opinion of the Force Majeure-Affected Entity,

such event may cause or contribute to an endangerment to public health or

welfare, or the environment. The Force Majeure-Affected Entity shall include with


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any notice all available, non-privileged documentation supporting its claim that

the delay was attributable to a Force Majeure. A Force Majeure-Affected Entity

shall be deemed to know of any circumstances of which the Force Majeure-

Affected Entity, any entity controlled by the Force Majeure-Affected Entity, or the

Force Majeure-Affected Entity’s contractors or subcontractors knew or should

have known. Failure to comply with the above requirements regarding an event

shall preclude a Force Majeure-Affected Entity from asserting any claim of Force

Majeure regarding that event. Any disputes regarding the existence, mitigation, or

resolution of a Force Majeure shall be resolved through the Dispute Resolution

provisions in Paragraphs 56 through 61.

64. Third-Party Rights. This Consent Decree does not create rights or benefits

for, or grant any cause of action to or rights of enforcement by, any third party not named

in this Consent Decree.

65. Joint Authorship. In the event of a dispute under this Consent Decree, the

Parties shall be considered joint authors of this Consent Decree and no provision shall be

interpreted against any Party because of authorship.

66. Successors to NRDC or MPA. In the event that NRDC or MPA disbands or

otherwise ceases operations, it shall assign its rights under this Consent Decree to the

remaining Plaintiff organization. If the remaining Plaintiff organization also disbands or

otherwise ceases operations, it shall assign its rights under this Consent Decree to another

qualified nonprofit organization. A nonprofit organization shall be qualified for

assignment under this Consent Decree if it: (a) is a charitable organization under Section


85

501(c)(3) of the Internal Revenue Code, a social welfare organization under Section

501(c)(4) of the Internal Revenue Code, or the substantial equivalent; and (b) has an

established record of working to enhance or preserve public health and the environment.

Any such assignment shall be subject to approval by the Court, and Mallinckrodt shall

have the right to object to any proposed assignment. Any successor organization shall

have the duty to assign its rights under this Consent Decree to another qualified nonprofit

organization in the event that the successor disbands or otherwise ceases operations. In

the event that a successor is not appointed at any given time, the Trustee of the

Remediation Trust shall propose the appointment of a qualified successor subject to

approval by the Court and objection by Mallinckrodt.

67. Modifications.

a. Modifications to Consent Decree. Modifications to this Consent

Decree shall be in writing, signed by authorized representatives of Plaintiffs and

Mallinckrodt, and shall be effective upon approval by the Court.

b. Modifications of Statement of Work and Trust Agreements.

Modifications to the Statement of Work or Trust Agreements shall be in writing,

signed by authorized representatives of Plaintiffs, Mallinckrodt, and the

applicable Trustee(s), and shall be effective immediately upon the Parties’ and

Trustee’s(s’) written agreement without further action by the Court. The Trustees

shall cause any such modified Statement of Work or Trust Agreement to be filed

on the Court’s docket, along with a brief statement identifying any material

modifications.


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c. Disputes Regarding Modifications. Any dispute regarding

modifications to this Consent Decree, the Statement of Work, or a Trust Agreement

shall be resolved through the Dispute Resolution provisions of this Consent

Decree.

68. List of Appendices.

a. “Appendix A” is the Statement of Work.

b. “Appendix B” is the form of the Remediation Trust Agreement.

c. “Appendix C” is the form of the Project Trust Agreement.

d. “Appendix D” is the form of the surety bond for financial assurance.

e. “Appendix E” is the Study Reaches Map, Figure 1-1 from Amec’s

Phase III Engineering Study Report, ECF No. 972-1.

f. “Appendix F” is the Surface Deposits Map, Figure 8-3 from Amec’s

Phase III Engineering Study Report, ECF No. 972-2.

69. Entire Agreement. This Consent Decree and its appendices constitute the

final, complete, and exclusive agreement and understanding among the Parties regarding

the settlement embodied in this Consent Decree. The Parties acknowledge that there are

no representations, agreements, or understandings relating to the settlement other than

those expressly contained in this Consent Decree.

70. Severability. The various terms, provisions and covenants contained in this

Consent Decree shall be deemed separable and severable, and the invalidity or

unenforceability of any of them shall in no manner affect or impair the validity or

enforceability of the remainder of this Consent Decree.


87

71. Effective Date. This agreement shall go into effect immediately as of the

date of final entry by the Court.

72. Construction and Choice of Law. This Consent Decree shall be interpreted

and construed under federal law as a settlement under the citizen suit provision of RCRA,

42 U.S.C. § 6972. To the extent that state law is applicable to the interpretation and

construction of this Consent Decree, this Consent Decree shall be interpreted and

construed in accordance with the laws of the State of Maine, without regard to the

conflict-of-laws principles. To the extent reasonably possible, the provisions of this

Consent Decree shall be interpreted in a manner consistent with the Statement of Work

and the Trust Agreements. Where the provisions of this Consent Decree are irreconcilable

with the provisions of the Statement of Work or a Trust Agreement, the provisions of this

Consent Decree shall control.

73. Advice of counsel; Authority to Enter into Agreement; Counterparts.

a. Each Party represents and warrants that this Consent Decree has

been negotiated in good faith and that the Party has sought and obtained any

appropriate legal advice it deems necessary prior to entering into this Consent

Decree.

b. The undersigned representatives for each Party represent and

warrant that they are duly authorized to enter into the terms of this Consent

Decree and to bind such Party legally to this Consent Decree, and that such Party

has the right, power, and authority to enter into this Consent Decree, to become a

Party to this Consent Decree, and to perform its obligations under this Consent


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Decree. This Consent Decree is a legal, valid, and binding obligation of such Party,

enforceable against such Party in accordance with its terms.

c. This Consent Decree may be signed electronically in counterparts

and such counterpart signature pages shall be given full force and effect.

XVII. Retention of Jurisdiction

74. This Court retains jurisdiction over both the subject matter of this Consent

Decree and Mallinckrodt for the duration of the performance of the terms and provisions

of this Consent Decree for the purpose of enabling any of the Parties to apply to the Court

for such further order, direction, or relief as may be necessary or appropriate for the

construction or modification of this Consent Decree, or to effectuate or enforce

compliance with its terms, or to preserve the integrity of the Consent Decree, or to resolve

disputes in accordance with Section XIV, Paragraphs 56 through 61 (Dispute Resolution).

XVIII. Final Judgment

75. Finding of Fairness. After considering the positions of the Parties and all

of the evidence, by entering this Consent Decree the Court finds that this Consent Decree

is fair, reasonable, and in the public interest.

76. Final Judgment. Upon entry of this Consent Decree by the Court, this

Consent Decree shall constitute a final judgment between and among Plaintiffs and

Mallinckrodt pursuant to which Mallinckrodt has, as of the Effective Date, resolved

liability to Plaintiffs within the meaning of 42 U.S.C. § 6972(a)(1)(B). The Court finds that

there is no just reason for delay and therefore enters this judgment as a final judgment

pursuant to Fed. R. Civ. P. 54 and 58.


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SO ORDERED THIS ____ DAY OF ___________, 20____.

___________________________________

United States District Judge


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Signature Page for the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC, No. 1:00-cv-00069-JAW (D. Me)

FOR MAINE PEOPLE’S ALLIANCE:

Date: March 19, 2021 /s/ Mitchell S. Bernard Mitchell S. Bernard, Esq., pro hac vice

(NY Bar No. 1684307) Jared J. Thompson, Esq., pro hac vice (DC Bar No. 1004120) Natural Resources Defense Council, Inc. 40 West 20th Street New York, NY 10011 Phone: (212) 727‐4469 [email protected] [email protected]

Date: March 19, 2021 /s/ Eric J. Uhl Eric J. Uhl, Esq., Bar No. 7244

Richardson, Whitman, Large & Badger 465 Congress Street, P.O. Box 9545 Portland, ME 04112-9545 Phone: (207) 774-7474 [email protected] Attorneys for MPA


91


FOR NATURAL RESOURCES DEFENSE COUNCIL, INC.:

Date: March 19, 2021 /s/ Mitchell S. Bernard Mitchell S. Bernard, Esq., pro hac vice

(NY Bar No. 1684307) Jared J. Thompson, Esq., pro hac vice (DC Bar No. 1004120) Natural Resources Defense Council, Inc. 40 West 20th Street New York, NY 10011 Phone: (212) 727‐4469 [email protected] [email protected]

Date: March 19, 2021 /s/ Eric J. Uhl Eric J. Uhl, Esq., Bar No. 7244

Richardson, Whitman, Large & Badger 465 Congress Street, P.O. Box 9545 Portland, ME 04112-9545 Phone: (207) 774-7474 [email protected] Attorneys for NRDC


92


FOR MALLINCKRODT US LLC:

Date: March 19, 2021 /s/ Jeffrey D. Talbert Jeffrey D. Talbert, Esq., Bar No. 4358

Benjamin S. Piper Esq., Bar No. 4720 Preti Flaherty Beliveau & Pachios LLP One City Center, P.O. Box 9546 Portland, Maine 04112-9546 Phone: 207-791-3000 [email protected] [email protected] Attorneys for Mallinckrodt US LLC


APPENDIX A

to the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC,

No. 1:00-cv-00069-JAW (D. Me)

Statement of Work

Case 1:00-cv-00069-JAW Document 1114-2 Filed 03/19/21 Page 1 of 44 PageID #:17595

1

STATEMENT OF WORK

For Remediation Activities

in the Penobscot River Estuary, Maine

to Accompany the Consent Decree in

Maine People’s Alliance v. HoltraChem Manufacturing Co., No. 1:00-cv-00069-JAW, D. Me.


2

TABLE OF CONTENTS

I. Introduction ...................................................................................................................... 3

II. Work Design ..................................................................................................................... 6

III. Implementation of Work ............................................................................................... 14

IV. Community Involvement ............................................................................................. 25

V. Recordkeeping and Reporting ..................................................................................... 27

VI. Deliverables .................................................................................................................... 30

VII. Schedules ......................................................................................................................... 39

VIII. Permitting and Regulatory Cooperation .................................................................... 40

IX. Contracting and Insurance ........................................................................................... 41

X. Modifications .................................................................................................................. 43


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I. Introduction

1. Purpose of the SOW. This Statement of Work (“SOW”) sets forth the

procedures and requirements for implementation of the Work by the Remediation Trust

and Project Trust (although certain sections of this SOW may only be applicable to one of

the Trusts) as defined in the Consent Decree entered in the matter of Maine People’s

Alliance and Natural Resources Defense Council, Inc. v. Mallinckrodt US LLC, et al., Case No.

1:00-cv-00069-JAW, in the United States District Court for the District of Maine.

2. Definitions. The terms used in this SOW that are defined in the Consent

Decree or in a Trust Agreement have the meanings assigned to them in the Consent

Decree or Trust Agreement, except that, unless otherwise stated:

a. “Paragraph” means a paragraph of the SOW;

b. “Beneficiaries” has the meaning assigned in the Consent Decree and

includes Mallinckrodt US LLC, Maine People’s Alliance, and Natural Resources

Defense Council; and

c. “Section” means a section of the SOW.

3. Structure of the SOW

a. Section II (Work Design) sets forth requirements regarding the

design, implementation, and completion of design plans to implement Work

activities, including the submission of Work Plan documents.

b. Section III (Implementation of Work) sets forth requirements

regarding the implementation and completion of Work activities, including the

submission of Deliverables.


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c. Section IV (Community Involvement) sets forth the responsibilities

of the Trusts, the Trustees and the Beneficiaries for community involvement,

including the submission of specified deliverables.

d. Section V (Recordkeeping and Reporting) sets forth the Trustees’

recordkeeping and reporting obligations.

e. Section VI (Deliverables) describes the Deliverables, and procedures

for submission of, review of, and comment on the Deliverables.

f. Section VII (Schedules) describes the Trustees’ duties to establish

and update schedules for the Work at the Site.

g. Section VIII (Permitting and Regulatory Cooperation) describes the

Trustees’ responsibilities to coordinate with, and obtain authorizations (regulatory

approvals, permits, or other permissions required to undertake the Work at the

Site) from, federal, state, and local regulatory and permitting entities, and to obtain

access agreements or any other private, third-party permissions required for the

Work.

h. Section IX (Contracting) sets forth requirements for any contracts

that the Trustees enter into for Work at the Site.

i. Section X (Modifications) sets forth the procedures for modifications

to this SOW.

j. Section XI (Appendices and References) lists references and

appendices to this SOW.


5

4. The extent of Work is limited to the actions described in Section VI

(Commitments by Mallinckrodt) of the Consent Decree. Work to be completed at the Site,

including the remediation activities to be designed and implemented and the available

funding for the remediation activities, is set forth in Paragraphs 10-15 of the Consent

Decree. Notwithstanding the Trustees’ obligations to comply with the requirements set

forth in Paragraphs 5 through 11 hereafter, the Trustees are authorized to undertake

alternative approaches to Work Design and Work Implementation that streamline the

processes so long as the Trustees provide justification for such changes in Work Plans

and other relevant Deliverables, including the opportunity for potential cost savings and

schedule improvements, enhanced remediation outcomes, and other efficiencies, and

demonstrate that a more streamlined approach satisfies all permit requirements and

otherwise complies with all requirements of the Consent Decree and the Trust

Agreements, including but not limited to the Beneficiaries’ right to comment on and

object to any such changes. Such alternative approaches to Work Design and Work

Implementation may include, but are not limited to, awarding Engineer-Procure-

Construct and/or modified design-build contracts which may be more cost effective,

save time, or mitigate potential or perceived risks associated with the Work, while

remaining protective of human health and environment. The Trustees’ utilization of any

such alternative approach shall not in any way change, alter, or otherwise modify the

scope of the Work beyond those actions provided for in Section VI of the Consent Decree.


6

II. Work Design

5. Design Work Plans. The Trustees shall prepare and submit to the

Beneficiaries for comment and opportunity for objection, a work plan for the design of

the Work to be conducted for each Work Category (“Design Work Plan”). The Trustees

must give notice to the Beneficiaries if the nature or scope of the Work as described in the

applicable Design Work Plan materially changes after the opportunity for objection has

occurred, and in such event the Trustees shall provide a brief written explanation of the

material change(s) and either an errata to the Design Work Plan or an amended Design

Work Plan that clearly marks the changes. Design Work Plans and any erratum or

amendments thereof are Deliverables subject to the requirements of Paragraph 31

(Decisions Regarding Work and Deliverables) of the Consent Decree, including but not

limited to the opportunity for comment and objection by the Beneficiaries. The purpose

of the Design Work Plans is to document the technical scope, basis of design, design

process, strategy for securing regulatory approvals, and Work schedule. The Design

Work Plans shall include the following elements, as applicable to the Work:

a. A summary of existing conditions and Work objectives;

b. A Basis of Design that identifies the objectives, requirements, and

performance criteria to be met by the Work;

c. A description of the overall management strategy for performing the

Work, including a proposal for phasing design and construction, if applicable;

d. A schedule for design activities;


7

e. A description of the proposed approach to contracting, construction,

operation, maintenance, and monitoring of the remediation activities as necessary

and applicable to implement the Work;

f. A description of the roles, responsibilities, and authorities of all

organizations/entities and key personnel responsible for development of the

Work Design for a Work Category;

g. Descriptions of any areas requiring clarification and/or anticipated

problems (e.g., data gaps, Site access issues, anticipated permitting issues, etc.);

h. Descriptions of any proposed investigations, pilot tests, or

treatability studies required to complete the design;

i. Descriptions of any uncertainties or data gaps that are not

anticipated to require clarification or further investigation;

j. Descriptions of applicable permitting and authorization

requirements and other regulatory requirements, including the timeline for

securing regulatory approvals and the Trustees’ plans for meeting the applicable

permitting and regulatory requirements during the Work Design process;

k. Descriptions of plans for obtaining any access rights or other public

or private authorizations needed in connection with the Work, such as access

agreements, property acquisition, property leases, and/or easements; and

l. Preparation of a Health and Safety Plan, Emergency Response Plan,

Field Sampling Plan, and Quality Assurance Project Plan (“QAPP”), both for any

proposed investigations, pilot tests, or treatability studies and for the Work itself.


8

6. Investigations. The purpose of any investigation (“Investigation”) is to

address key data gaps identified in the Design Work Plan that require further

investigation in order to complete the Work Design for a Work Category.

a. Investigation Work Plan. The Trustees shall submit to the

Beneficiaries for comment a work plan for any proposed Investigation that

includes, as applicable to the Work:

i. An evaluation and summary of existing data and a

description of the data gaps that require further investigation in order to

complete Work Design for a Work Category;

ii. A description of the required technical and/or regulatory

decisions to be made or questions to be answered with the Investigation

results, along with a summary of the type, quantity, and quality of data

needed to reach those decisions (“Data Quality Objectives” or “DQOs”);

iii. A sampling plan including media to be sampled,

contaminants or parameters for which sampling will be conducted, location

(areal extent and depths), and number of samples;

iv. A schedule for the Investigation; and

v. Cross references to quality assurance/quality control

(“QA/QC”) requirements set forth in the QAPP as described in Paragraph

31(d).


9

b. Investigation Report. Following any Investigation, the Trustees shall

submit to the Beneficiaries an Investigation Report that includes, as applicable to

the Investigation objectives:

i. A summary of the investigations performed;

ii. A summary of the investigation results;

iii. Summaries of validated data (i.e., tables and graphics);

iv. Summaries of data validation reports and laboratory data

reports;

v. Narrative interpretation of data and results, including how

the Investigation objectives and DQOs were satisfied;

vi. Results of statistical and modeling analyses;

vii. Summary photographs documenting the work conducted;

and

viii. Conclusions and recommendations for Work Design,

including any resulting modifications to design parameters and criteria

provided for in the Basis of Design or other Deliverables.

7. Treatability Studies and Pilot Tests

a. The purpose of any treatability study or pilot test is to provide Site-

specific data to address key data gaps and/or uncertainties related to treatment

technologies, remediation techniques, or Site-specific conditions that may affect

remediation methods. Treatability studies and pilot tests may be undertaken if

needed, but are not required, and may be unnecessary for well-established or


10

proven remediation methods. If the need for a treatability study or pilot test is

identified, the treatability study or pilot test shall be proposed by a Trustee in a

Design Work Plan.

b. Treatability Study or Pilot Test Work Plans. For any treatability

study or pilot test, the Trustees shall submit to the Beneficiaries for comment a

Treatability Study or Pilot Test Work Plan that includes:

i. An evaluation and summary of existing data and a

description of the data gaps to be addressed by the treatability study or pilot

test;

ii. A description of the treatability study or pilot test objectives,

including the criteria by which the resulting data will be evaluated;

iii. A sampling, analysis, and/or testing plan including media to

be evaluated, analyses to be conducted, contaminants or parameters to be

analyzed, number of samples, and pilot test plans;

iv. A schedule for the treatability study or pilot test; and

v. Cross references to QA/QC requirements set forth in the

QAPP as described in Paragraph 31(d).

c. Treatability Study or Pilot Test Evaluation Report. Following any

treatability study or pilot test, the Trustees shall submit to the Beneficiaries a

Treatability Study or Pilot Test Evaluation Report that includes, as appropriate:


11

i. A summary of the treatability study or pilot test performed,

referencing consistency with the Treatability Study or Pilot Test Work Plan

and noting key deviations therefrom, if any;

ii. A summary of the treatability study or pilot test results,

including a description of whether the design objectives were met;

iii. Summaries of validated data (i.e., tables and graphics);

iv. Summaries of data validation reports and laboratory data

reports;

v. Narrative interpretation of data and results, including an

evaluation of the results with respect to the performance criteria identified

in the Treatability Study or Pilot Test Work Plan;

vi. Results of statistical and modeling analyses;

vii. Summary photographs documenting the work conducted;

and

viii. Conclusions and recommendations for Work Design,

including design parameters and criteria.

8. Work Design Process. The Trustees shall ensure that their staff,

consultants, and contractors use best professional judgment to complete all Work Designs

in accordance with the Design Work Plan in an efficient, timely, rigorous, and

scientifically justified manner. As part of the Work Design process, the Trustees shall

prepare preliminary Work Designs needed to provide the information required to

implement the Work and to secure the required regulatory approvals and permits.


12

However, the Trustees are encouraged to prepare only those Work Designs required to

secure regulatory and permitting approvals and address Beneficiary comments. The

Trustees and their consultants and contractors are expected to use their best professional

judgment to prepare Work Designs that are efficient and cost-effective, address

comments from regulatory agencies, and, in the Trustees’ discretion, consider and

address comments from the Beneficiaries.

9. Work Designs. The Trustees shall submit a draft of each Work Design,

including any preliminary Work Designs needed for regulatory and permitting purposes,

to the Beneficiaries for comment and opportunity for objection. The Beneficiaries shall

have at least fourteen (14) days to review and provide comments on each draft Work

Design, including any proposed final Work Design. If a Beneficiary wishes to object to

any element of any Work Design, that Beneficiary shall initiate the Dispute Resolution

process provided in the Consent Decree and, in doing so, the Beneficiary shall identify

with specificity the element(s) of the Work Design to which it objects. When submitting

a Work Design to the Beneficiaries, the Trustees shall include a brief summary of the

material changes and alterations from the prior version of the Work Design. The Trustees’

Work Designs for Work in each Work Category shall include the elements necessary to

support the Work objectives and may include the following elements:

a. A description of the Work to be implemented, including the Work

Design objectives;


13

b. Drawings and specifications. Any preliminary Work Design may

include preliminary drawings and specifications. The final Work Design shall

include:

i. A complete set of construction drawings and specifications

that are (A) certified by a registered professional engineer, and (B) suitable

for procurement; and

ii. A survey and engineering drawings showing existing Site

features, such as elements, property borders, easements, and Site

conditions;

c. Descriptions of permit requirements and any other authorization

requirements;

d. An Operation and Maintenance (O&M) Plan and O&M Manual, if

necessary;

e. A description of how the Work will be implemented in a manner that

minimizes environmental risks and adverse impacts;

f. A description of monitoring and control measures to protect human

health and the environment, such as water and air monitoring and dust

suppression, during the Work;

g. A proposed Work Schedule;

h. Any updates to the supporting Deliverables if required to

accompany the Design Work Plan (Health and Safety Plan, Emergency Response

Plan, Field Sampling Plan, and QAPP), and the following additional supporting


14

Deliverables described in Paragraph 31 (Supporting Deliverables), if applicable:

Site Wide Monitoring Plan, Transportation and Off-Site Disposal Plan, O&M Plan,

and Institutional Controls Implementation and Assurance Plan; and

i. Such other elements as the Trustees determine are necessary and

appropriate in their best professional judgment.

j. The Trustees may recommend a more limited Work Design effort if

a more streamlined, cost-effective approach to contracting for the Work does not

require a detailed Work Design and complies with all regulatory requirements and

permits.

10. Feasibility of Work. If at any time during the performance of the Work

Design tasks the Trustees determine that the Work is not Feasible, as defined in the

Consent Decree, the Trustees shall provide written notice to the Beneficiaries of the basis

for such a determination as soon as reasonably possible, and provide the Beneficiaries

with an opportunity to object to the Trustees’ conclusions.

III. Implementation of Work

11. Implementation Work Plans. The Trustees shall prepare and submit to the

Beneficiaries for comment and opportunity for objection plans to implement the Work

Design(s) for each Work Category (“Implementation Work Plans”). The Trustees must

give notice to the Beneficiaries if the nature, scope, or schedule of an Implementation

Work Plan later changes in a material way by briefly explaining in writing the material

change(s) and providing an errata or draft amended Implementation Work Plan that

clearly marks the changes. Implementation Work Plans and any errata or amendments


15

thereof are Deliverables subject to the requirements of Paragraph 31 (Decisions

Regarding Work and Deliverables) of the Consent Decree, including but not limited to

the opportunity for comment and objection by the Beneficiaries. The Trustees’

Implementation Work Plans shall include at least the following elements:

a. A Work construction schedule in an appropriate format, such as a

critical path or Gantt chart;

b. An updated Health and Safety Plan that meets all applicable

regulatory requirements and covers activities during the Work; and

c. Plans for satisfying all permit, authorization, and access agreement

requirements, including for obtaining all necessary permits, authorizations, and

permissions for on- and off-Site activities, and for satisfying any requirements of

such permits, authorizations, and permissions.

12. Meetings and Inspections

a. The Trustees will ensure appropriate oversight of all construction

activities and enter into contracts that provide for contractor responsibility for

addressing any deficiency in the performance of the Work and compliance with

the Implementation Work Plan and final Work Design.

b. The Trustees shall report to the Beneficiaries as required by the

Consent Decree. If requested by a Beneficiary, the Trustees shall make reasonable

efforts to allow the Beneficiary’s representatives to inspect or observe the Work,

so long as the request does not unreasonably create health or safety risks or

interfere with the timely implementation of any Work.


16

13. Emergency Response and Reporting

a. Emergency Response and Reporting. If any event occurs during

performance of the Work that causes or threatens to cause a release of Waste

Material on, at, or from the Site and that either constitutes an emergency situation

or that may present an immediate threat to public health or welfare or the

environment, the Trustees (or their contractors) shall: (1) immediately take or

direct all appropriate action to prevent, abate, or minimize such release or threat

of release; (2) immediately notify the appropriate state and federal regulatory

agencies orally and notify the Trustees, who will notify the Beneficiaries orally or

by electronic mail; and (3) take such actions in accordance with all applicable

provisions of the Health and Safety Plan, the Emergency Response Plan, and any

other relevant Deliverables. All oral notifications made to state and federal

regulatory agencies pursuant to the Emergency Response and Reporting

provisions herein must be followed up in writing within 48 hours of issuance to

document the time, date, nature, and content of the oral notification that was

provided.

b. Release Reporting. Upon the occurrence of any event during

performance of the Work that a Trustee (or its contractor) is required to report

pursuant to Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the

Emergency Planning and Community Right-to-know Act (EPCRA), 42 U.S.C.

§ 11004, the Trustee shall immediately notify the appropriate state and federal


17

regulatory agencies orally and notify the Beneficiaries and the Trustees orally or

by electronic mail.

c. For any event covered by Paragraph 12(a) and/or (b), the Trustee

shall: (i) within fourteen (14) days after the onset of such event, submit a report to

the Beneficiaries describing the actions or events that occurred and the measures

taken, and to be taken, in response thereto; and (2) within thirty (30) days after the

conclusion of such event, submit a report to the Beneficiaries describing all actions

taken in response to such event. This reporting requirement is in addition to any

other reporting required by the Consent Decree. The Trustee shall also submit any

required reporting under CERCLA § 103 or EPCRA § 304.

14. Off-Site Shipments and Waste Disposal

a. 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 reuse is

permissible as determined by the granting of all necessary permits and approvals

for such reuse. Material may be reused in other states. The Trustees shall make

best efforts to beneficially reuse all sediment, debris, and other materials removed

or excavated from the Site.

b. The Trustees may ship waste materials from the Site to an off-Site

disposal facility only if beneficial reuse is not Feasible or if required regulatory

approvals or permits cannot be secured in a timely manner, and, in such case, only

if the off-Site facility is qualified to receive the waste materials under applicable


18

federal and state laws and the Trustees, or their contractors, obtain all applicable

state and/or federal permits and authorizations for such waste transportation and

disposal.

c. All plans to transport and dispose of waste materials off-Site must

be described in a Transportation and Off-Site Disposal Plan that accompanies the

applicable final Remedial Design Work Plan.

15. Determinations Regarding Contingent Funding for Work Categories

a. Consistent with Paragraphs 10(b), 11(b), 14(b), and 15(a) of the

Consent Decree, and as further specified herein, the Trustees shall determine if

any of Mallinckrodt’s Contingent Funding obligations are triggered. In making

this determination, the Trustees shall be guided by sound professional

environmental engineering and scientific principles and advice. All best efforts

shall be made to design and complete the Work without the Contingent Funding

but the Trustees shall not sacrifice sound engineering and scientific principles to

do so.

b. In the Orrington Reach, the Trustee of the Remediation Trust may

require the Contingent Funding of up to $10 million if it determines that the Work

in this Reach, including remedy design, implementation, monitoring, and

maintenance, cannot feasibly be completed within the Committed Funding of $50

million. This determination shall be based on the professional judgement and

advice of the Trustee and its experts, taking into account feedback from regulatory

agencies and the Beneficiaries, bids from potential Implementation Work


19

contractors, the need for O&M in this Reach, and any other factors that

professionals, including environmental engineers and/or scientists would

consider. The Trustee may make this determination at any time until it certifies

that the Implementation Work in the Orrington Reach, including O&M, is

complete.

c. For the Mobile Sediments and Surface Deposits, the Trustee of the

Remediation Trust may require the Contingent Funding of up to $50 million for

landfill (off-Site) disposal of sediment, debris, and other materials for which

beneficial reuse is not permitted by the relevant regulatory agency or agencies or

otherwise is not Feasible, consistent with Paragraph 14 above.

d. For Long-Term Monitoring, the Trustee of the Remediation Trust

may require the Contingent Funding of up to $10 million in additional funds if it

determines that a scientifically justified Long-Term Monitoring program cannot

feasibly be completed within the Committed Funding of $10 million. This

determination shall be based on the Trustee’s best professional judgment, taking

into account the advice of its technical experts, feedback from regulatory agencies

and the Beneficiaries, existing monitoring data from the Site, bids from potential

monitoring contractors, and any other factors consistent with the Trustee’s

fiduciary obligations to its Beneficiaries. The Trustee may make this determination

at any time until it certifies that the Long-Term Monitoring is complete, which

shall be determined consistent with the procedures in Paragraph 14(c) of the

Consent Decree.


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16. Certification of Implementation Work Completion

a. Work Completion Inspection. Upon the completion of any

Implementation Work for a Work Category or a discrete part of a Work Category,

the Trustees shall inspect the construction and, if applicable, implementation of

the remedial Work to ensure that it was constructed in accordance with the Design

Plan and consistent with all contract specifications and requirements.

i. If, based on the Implementation Work Completion Inspection

and review of all accompanying documentation, any aspect of the

Implementation Work is deficient, the Trustees will ensure that its

contractors correct any deficiencies and thereafter confirm proper

completion of Implementation Work. The Trustees shall report any such

deficiency to the Beneficiaries not later than in the next Quarterly Progress

Report after the deficiency is discovered, along with a description of

corrective actions taken.

ii. If any Implementation Work includes construction of a

treatment system or any other mechanical system that is required to meet a

specific performance standard, the Trustees’ inspections shall occur during

and after startup and once operations are stabilized as set forth in the Work

Design documents and O&M Plan, to ensure that the system is functioning

properly and as designed.

b. Final Implementation Work Report. Following a successful

inspection of completed Implementation Work in a Work Category, the Trustees


21

shall submit to the Beneficiaries an Implementation Work (Construction

Completion) Report, which may be submitted concurrently with, or as a separate

section of, a Quarterly Progress Report required by Paragraph 37 of the Consent

Decree and Paragraph 25 of this SOW. The Implementation Work (Construction

Completion) Report will include the following as applicable: (i) statements by a

registered professional engineer and by the Trustees that construction of the

Implementation Work is complete and is consistent with the Work Design(s) and

Work Implementation Plan(s) and all contract documents and specifications; (ii)

supporting documentation that construction of the Implementation Work is

complete and that the Implementation Work was constructed consistent with the

Work Design(s) and Work Implementation Plan(s) (and all contract documents

and specifications); (iii) record drawings signed and stamped by a registered

professional engineer; (iv) a description of any deviations from the Work Design(s)

and Work Implementation Plan(s) and how they were corrected; and (v) a

certification in accordance with Paragraph 28 (Certification). The Trustees shall

also prepare and submit any completion report(s) required by a regulatory agency

or other permitting authority as a condition of any permit or other authorization,

and the Trustees shall provide a copy of any such report(s) to the Beneficiaries.

c. A Beneficiary may dispute a final Implementation Work Report by

initiating the Dispute Resolution provisions of the Consent Decree.

17. Determinations Regarding Reallocation of Funds. Upon completion of all

Work in a Work Category, the Trustees shall determine if there is any Remaining Funding


22

for that Work Category. Within sixty (60) days after a determination that there is

Remaining Funding for a Work Category, the Trustees shall propose to the Beneficiaries

a reallocation of any Remaining Funding to Work in other Work Categories or to

Beneficial Environmental Projects, consistent with Paragraph 17 of the Consent Decree.

18. Long-Term Monitoring

a. As part of the development of the Site Wide Monitoring Plan

required by Paragraph 31(e), the Trustees shall develop a Long-Term Monitoring

Plan for the Site. The Long-Term Monitoring Plan shall be consistent with

Paragraph 14 of the Consent Decree and shall provide for monitoring biota,

sediment, and water at the Site and at appropriate reference locations at three-year

intervals for at least 30 years. The Long-Term Monitoring Plan shall include:

i. The objectives and scope of the Long-Term Monitoring Plan;

ii. A sampling plan including media to be sampled,

contaminants or parameters for which sampling will be conducted, location

(areal extent and depths), and number of samples;

iii. A projected budget and schedule for the next cycle of Long-

Term Monitoring;

iv. A description of the roles of all organizations/entities and key

personnel involved, and proposed to be involved, in the development and

implementation of the Long-Term Monitoring Plan; and

v. Cross references to QA/QC requirements set forth in the

QAPP as described in Paragraph 31(d).


23

b. The Long-Term Monitoring Plan may be part of the Site Wide

Monitoring Plan or a standalone document, at the discretion of the Trustees.

c. The Long-Term Monitoring Plan shall be informed by all existing

Site data and Reports, including the Long-Term Monitoring Recommendations in

Section 8.7 of Amec’s Phase III Engineering Study Report. The Trustees shall

review and, if needed, update the Long-Term Monitoring Plan prior to each cycle

of Long-Term Monitoring sampling.

d. In each year that precedes the next scheduled cycle of Long-Term

Monitoring, the Trustees shall submit draft, proposed final, and final updated

versions of the Long-Term Monitoring Plan to the Beneficiaries on the same

schedule as the annual budget and work plan required by Paragraph 34 of the

Consent Decree (e.g., the updated Long-Term Monitoring Plan for 2023-24 shall be

submitted in Fall 2022 and so on).

19. Certification of Final Work Completion

a. Inspection. Upon the completion of all Work Site-wide, but while

Long-Term Monitoring and any other long-term O&M is still underway, the

Trustees shall inspect the completed Work to ensure that it was constructed and is

functioning as designed.

b. Final Work Completion Report. Following a successful inspection of

the completed Work, the appropriate Trustee shall submit a Final Work

Completion Report to the Beneficiaries that includes:


24

i. Statements by a registered professional engineer and/or by

the Trustee that all Implementation Work-related construction (other than

Long-Term Monitoring and any other ongoing O&M) is complete;

ii. Supporting documentation that all applicable permit

conditions have been satisfied (except for ongoing Long-Term Monitoring

or O&M obligations);

iii. A description of the ongoing Long-Term Monitoring (which

may be accomplished by incorporating the Long-Term Monitoring Plan by

reference) and any ongoing O&M activities; and

iv. A certification in accordance with Paragraph 28

(Certification).

c. The Final Work Completion Report may be combined with the final

Implementation Work Report for the last Work completed at the Site.

d. A Beneficiary may dispute the Final Work Completion Report by

initiating the Dispute Resolution provisions of the Consent Decree.

20. Certification of Site Closure

a. Site Closure Report. Following the completion of all Work at the Site,

including Long-Term Monitoring and O&M activities, the Trustees shall submit a

joint Site Closure Report to the Beneficiaries that includes the following:

i. Statements by a registered professional engineer and by the

Trustees that all Work, including Long-Term Monitoring and O&M, is

complete;


25

ii. A statement by the Trustees that any remaining Committed

Funding is insufficient to support any additional Work, including

Beneficial Environmental Projects, at the Site;

iii. A description of any remaining Trust Assets;

iv. Access to, or a complete copy of, the entire project database

described in Paragraph 26 (Project Database); and

v. A certification in accordance with Paragraph 28

(Certification).

b. The Site Closure Report may be combined with a Quarterly Progress

Report required by Paragraph 37 of the Consent Decree and Paragraph 25 of this

SOW.

c. A Beneficiary may dispute the Site Closure Report by initiating the

Dispute Resolution provisions of the Consent Decree.

IV. Community Involvement

21. The Trustees are responsible for developing and implementing community

involvement activities to notify the public of planned Work activities and create

opportunities for the public to provide comments regarding Work activities.

22. The Trustees must develop a Community Involvement Plan (“CIP”) and

submit the CIP to the Beneficiaries for comment. The CIP must describe the public

involvement activities and other methods that the Trustees will use to disseminate

information to the public regarding the Work activities and opportunities for public


26

comment and must describe how the Trustees will provide public access to final copies

of work plans, reports, schedules, and other Deliverables.

a. At a minimum, the Trustees must maintain a publicly available

website that makes available, at no cost to the public, electronic copies of (i) final

work plans, reports, schedules, and other Deliverables developed by the Trustees,

and (ii) all final reports from the Phase I, II, and III Studies at the Site.

b. In developing the CIP, the Trustees shall consider, but are not bound

by, the Communication and Community Involvement recommendations in

Sections 7.0 and 8.8 of Amec’s Phase III Engineering Study Report (ECF No. 972)

and in Amec’s Communication and Community Involvement Plan (ECF No. 981).

23. The Beneficiaries shall receive at least fourteen (14) days’ prior notice of

proposed materials for public dissemination, the plans for dissemination of information

to the public, and public meetings or other events held to receive public comment or

explain planned Work activities. The Beneficiaries may participate in the preparation of

materials for public dissemination with the mutual consent of all Beneficiaries and the

Trustees. However, any participation by the Beneficiaries shall not unreasonably delay

the Trustees’ public engagement activities.

24. The Trustees shall designate a Community Involvement Coordinator. The

Trustees must notify the Beneficiaries of the designation of the Coordinator and provide

the name, title, contact information, and qualifications of the Coordinator. The

Coordinator shall be responsible for developing and implementing the CIP.


27

V. Recordkeeping and Reporting

25. Quarterly Progress Reports

a. As provided in Paragraph 37 of the Consent Decree, 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 the Trusts and ending as soon as practicable upon termination

of the Trusts, the Trustees shall submit to the Beneficiaries and the Court a written

Quarterly Progress Report.

b. Each Quarterly Progress Report shall include a summary of the

following for the reporting period:

i. The actions that have been taken toward achieving

compliance with the Consent Decree;

ii. A summary of key results of sampling, tests, and all other

data received or generated by the Trustees and its contractors;

iii. A list and brief description of all Deliverables that the

Trustees submitted to the Beneficiaries;

iv. A description of all activities relating to the Work that are

scheduled for the next four months;

v. An updated Milestone Work Schedule, together with

information regarding percentage of completion, delays encountered or

anticipated that may affect the future schedule for implementation of the


28

Work, and a description of efforts made to mitigate those delays or

anticipated delays;

vi. A description of any material modifications to the work plans

or other schedules that have been proposed to the Beneficiaries;

vii. A description of all activities undertaken in support of the CIP

during the reporting period and those planned to be undertaken in the next

four months;

viii. A summary of any updates made to the form, location, or

management of the project database; and

ix. Financial statements of the Trusts and Trust Accounts at the

end of such calendar quarter and the receipts and disbursements of the

Trusts for such quarter, provided by the Trustees.

c. Each Quarterly Progress Report should be a standalone document

that succinctly summarizes the current status of the Work without a need to refer

to other documents or prior reports. To minimize administrative burdens, each

Quarterly Progress Report may be structured as an iterative revision of the prior

Quarterly Progress Report, however, any substantial changes or additions must

be marked or itemized in a way to make it easy for readers to see what has

changed.

d. If the schedule for any activity described in a Quarterly Progress

Report, including activities scheduled to be performed in the following four


29

months, changes in a material way, the Trustees shall notify the Beneficiaries of

such change at least fourteen (14) days before performance of the activity.

26. Project Database.

a. The Trustees, or their designated contractors, shall maintain a project

database containing all data generated by the Trustees and their contractors

necessary to complete the required Work and all Site data provided by the

Beneficiaries. The Trusts shall retain ownership over, and intellectual property

rights to, the database, which must comply with any data requirements imposed

by permits or other regulatory authorizations for the Work.

b. Upon reasonable notice, and at least triennially after each cycle of

Long-Term Monitoring data are added to the database, the Trustees shall provide

access to the updated project database to the Beneficiaries.

c. Upon request, the Trustees may share data from the project database

with any federal, state, or local regulatory agency or permitting authority, after

giving at least fourteen (14) days’ prior notice to the Beneficiaries. In its discretion,

the Trustees may share data with any university or researcher; however, it may

deny duplicative or unreasonably frequent data-sharing requests, or place other

conditions on data sharing if data-sharing requests would unreasonably interfere

with the Trustees’ management of the database, increase administrative costs of

managing the database, or unreasonably interfere with the Trustees’ other Work

at the Site.


30

d. Consistent with Paragraph 20, the Trustees shall provide the

Beneficiaries with access to the entire project database at-will upon submittal of

the Site Closure Report. Alternatively, the Beneficiaries may request complete

copies of the project database, provided all costs associated with the Trustees

providing copies of the project database shall be borne by the requesting

Beneficiary or Beneficiaries. Concurrently, the Trustees shall affirmatively offer to

provide access to the project database to the Maine Department of Environmental

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

of Marine Resources, and the U.S. Environmental Protection Agency, or their

successors, and shall provide such access upon request. To the extent that any

regulatory authority requires the project database to be maintained or preserved

after the termination of the Trusts, Mallinckrodt shall be responsible for such

maintenance and preservation of the project database. Mallinckrodt shall retain

sole discretion with respect to selecting the method and manner for maintaining

and preserving the project database in the event it is required to do so.

VI. Deliverables

27. General Requirements. The Trustees shall submit draft and final copies of

Deliverables to the Beneficiaries as required by the Consent Decree and this SOW.

Deliverables must be in writing unless otherwise specified. The Trustees shall submit all

copies of Deliverables to the Beneficiaries in electronic form and by a method mutually

agreed upon with the respective Beneficiary.


31

28. Certification. All Deliverables that require compliance with this Paragraph

must be signed by the appropriately responsible Trustee, and must contain the following

statement:

I certify that this document and all attachments were prepared under my direction

or supervision in accordance with a system designed to assure that qualified

personnel properly gather and evaluate the information submitted. Based on my

inquiry of the person or persons who manage the system, or those persons directly

responsible for gathering the information, the information submitted is, to the best

of my knowledge and belief, true, accurate, and complete. I have no personal

knowledge that the information submitted is other than true, accurate, and

complete.

29. The Beneficiaries’ Review of Deliverables

a. Consistent with Paragraph 31 of the Consent Decree, the

Beneficiaries may provide comments on the draft versions of any Deliverables to

the appropriate Trustee, within a timeframe specified by the Trustee that is

appropriate for the particular Deliverable and not less than ten (10) business days.

If a Beneficiary wishes to object to any element of any Deliverable submitted by a

Trustee, the Beneficiary shall initiate the Dispute Resolution process provided by

the Consent Decree and, in doing so, the Beneficiary shall identify with specificity

the element of the Deliverable to which it objects.

b. Except as otherwise provided in Section XIV of the Consent Decree

(Dispute Resolution) or Paragraph 31 of the Consent Decree (Decisions Regarding


32

Work and Deliverables), a Beneficiary’s objection or the pendency of Dispute

Resolution procedures shall not delay or stay any severable Work.

c. In the event of a dispute for which a stay or delay of a specific

element of a Deliverable is ordered, a dispute regarding a severable element of a

Deliverable shall not delay or prevent implementation of other elements of the

Deliverable during the pendency of the dispute, if cost-effective and advisable.

The Trustees shall determine whether elements of a Deliverable are severable

based on whether the elements can be completed separately without substantial

inefficiencies and/or significant impacts to the cost or schedule of Work.

d. All Deliverables submitted in accordance with this SOW are

presumptively approved in the absence of timely objection by a Beneficiary.

Unless a Beneficiary initiates Dispute Resolution, no additional action or approval

by the Court, any Beneficiary, or the Trustees is required for any Deliverable.

However, any Deliverable that requires approval by a regulatory agency or other

permitting authority as a condition of a permit or other authorization (e.g., a

completion report) shall not be considered complete and approved until such

regulatory agency or permitting authority approval is obtained.

30. Primary Deliverables. Consistent with the Consent Decree and this SOW,

the Trustees shall submit all primary Deliverables to the Beneficiaries for review and

comment. Primary Deliverables for the Site include:

a. Design Work Plans required by Paragraph 5;


33

b. Investigation Work Plans and Investigation Reports required by

Paragraph 6;

c. Treatability Study and Pilot Test Work Plans and Treatability Study

and Pilot Test Evaluation Reports required by Paragraph 7;

d. Work Designs required by Paragraph 9;

e. Implementation Work Plans required by Paragraph 11;

f. Permit applications to regulatory agencies or other permitting

authorities and/or access agreements for obtaining private permissions required

to undertake the Work at the Site, as required by Paragraph 35;

g. Final Implementation Work Reports required by Paragraph 16(b);

h. The Final Work Completion Report required by Paragraph 19(b);

i. The Site Closure Report required by Paragraph 20(a); and

j. The Community Involvement Plan required by Paragraph 22.

31. Supporting Deliverables. The Trustees shall submit each of the following

Supporting Deliverables to the Beneficiaries for review and comment. The Trustees shall

update each of these supporting Deliverables as necessary or appropriate during the

course of the Work and as specified in this SOW.

a. Health and Safety Plan(s). The Health and Safety Plan(s)

(“HASP(s)”) describes all activities to be performed to protect on-site personnel

and area residents from physical, chemical, and all other hazards posed by the

Work. A HASP shall be prepared to meet all applicable laws and regulations


34

associated with applicable activities conducted in the performance of Work, and

individual HASPs may be developed for different Work Categories.

b. Emergency Response Plan. The Emergency Response Plan (“ERP”)

shall be developed to meet all applicable laws and regulations and describe

procedures to be used in the event of an accident or emergency at the Site (for

example, power outages, on-water vessel failure, treatment plant failure, slope

failure, etc.). The ERP must include:

i. Name of the person or entity responsible for responding in

the event of an emergency incident;

ii. Plan and date(s) for meeting(s) with the local community,

including local, State, and federal agencies involved in the cleanup, as well

as local emergency squads and hospitals;

iii. Spill Prevention, Control, and Countermeasures (“SPCC”)

Plan (if applicable) describing measures to prevent, and contingency plans

for, spills and discharges;

iv. Notification activities in accordance with Paragraphs 13(a)

(Emergency Response and Reporting) and 13(b) (Release Reporting) in the

event of a release of hazardous substances requiring reporting under

federal or State law; and

v. A description of all necessary actions to ensure compliance

with Paragraph 13 (Emergency Response and Reporting) in the event of an

occurrence during the performance of the Work that causes or threatens a


35

release of Waste Material from the Site that constitutes an emergency or

may present an immediate threat to public health or welfare or the

environment.

c. Field Sampling Plan. The Field Sampling Plan (“FSP”) addresses all

sample collection activities. The FSP must be written to ensure that all data

collected meets the applicable Data Quality Objectives and in a format such that a

field sampling team unfamiliar with the project would be able to gather the

samples and field information required. As appropriate, the FSP may be adapted

from Amec’s FSP for the Phase III Engineering Study.

d. Quality Assurance Project Plan. The Quality Assurance Project Plan

(“QAPP”) augments the FSP and addresses sample analysis and data handling

regarding the Work. The QAPP must include a detailed explanation of the

Trustees’ quality assurance, quality control, and chain of custody procedures for

all treatability, design, compliance, and monitoring samples. As appropriate, the

QAPP may be adapted from Amec’s QAPP for the Phase III Engineering Study.

The QAPP must include provisions:

i. To show that the selection of laboratory methods has

considered the results of Amec’s Analytical Methods Comparison (Sept. 15,

2017), ECF No. 974;

ii. To ensure that the Trustees’ contracted laboratories perform

all analyses using EPA-accepted methods (i.e., the methods documented in

USEPA Contract Laboratory Program Statement of Work for Inorganic Analysis,


36

ILM05.4 (Dec. 2006); USEPA Contract Laboratory Program Statement of Work

for Organic Analysis, SOM01.2 (amended Apr. 2007); and USEPA Contract

Laboratory Program Statement of Work for Inorganic Superfund Methods (Multi-

Media, Multi-Concentration), ISM01.2 (Jan. 2010)) or other generally accepted

scientific methods; and

iii. To ensure that the Trustees’ contracted laboratories

participate in an EPA-accepted QA/QC program or other generally

accepted QA/QC program.

e. Site Wide Monitoring Plan. The purpose of the Site Wide Monitoring

Plan (“SWMP”) is to supplement existing baseline information regarding the

extent of contamination in affected media at the Site; to obtain information,

through short- and long-term monitoring, about the movement of and changes in

contamination throughout the Site, before, during, and after performance of the

Implementation Work; to obtain information regarding contamination levels to

determine whether Performance Standards, if any, are achieved; and to obtain

information to determine whether to perform additional actions, including further

Site monitoring. The SWMP may incorporate the Long-Term Monitoring Plan by

reference if the Trustees decide to create a standalone Long-Term Monitoring Plan.

The SWMP must include:

i. Description of the environmental media to be monitored Site-

wide and for monitoring during performance of Implementation Work;


37

ii. Identification of Performance Standards and DQOs,

including a description of the data collection parameters, including existing

and proposed monitoring devices and locations, schedule and frequency of

monitoring, analytical parameters to be monitored, and analytical methods

employed;

iii. Description of how performance data will be analyzed,

interpreted, and reported, and/or other Site-related requirements;

iv. Description of verification sampling procedures;

v. Description of deliverables that will be generated in

connection with monitoring, including sampling schedules, laboratory

records, and reports to the Beneficiaries; and

vi. Description of triggers for and proposed changes and/or

additions to monitoring and data collection actions (such as increases in

frequency of monitoring, and/or installation of additional monitoring

devices in the affected areas) in the event that results from monitoring

devices indicate changed conditions (such as higher than expected

concentrations of the contaminants of concern).

f. Transportation and Off-Site Disposal Plan. The Transportation and

Off-Site Disposal Plan (“TODP”) describes plans to ensure compliance with

Paragraph 14 (Off-Site Shipments and Waste Disposal). The TODP must include:

i. Proposed routes for off-site shipment of Waste Material;


38

ii. Identification of communities affected by transportation and

disposal of Waste Material; and

iii. Description of plans to minimize impacts on affected

communities.

g. O&M Plan. To the extent that any Implementation Work requires

ongoing O&M after the Implementation Work is complete (such as periodic

inspection and maintenance of a cap), the Trustees shall prepare an O&M Plan for

such O&M activities. The O&M Plan describes the requirements for inspecting,

operating, and maintaining the Implementation Work that includes O&M. The

O&M Plan must include at least the following elements:

i. Description of the O&M activities to be performed;

ii. Description of records and reports that will be generated

during O&M, such as daily operating logs, laboratory records, records of

operating costs, reports regarding emergencies, personnel and maintenance

records, monitoring reports, and reports to the Beneficiaries; and

iii. Description of corrective action, if any, to be implemented if

O&M activities identify a failure or substantial deficiency in the Work

element that would compromise the performance (e.g., if erosional damage

to a cap cannot feasibly be repaired or a cap cannot feasibly be maintained

for its intended lifespan).

h. Institutional Controls Implementation and Assurance Plan. The

Institutional Controls Implementation and Assurance Plan (“ICIAP”) describes


39

activities and plans, if any, to implement, maintain, and enforce Institutional

Controls at the Site. The ICIAP must include the following elements:

i. Description of any Institutional Controls at the Site, including

both Institutional Controls enacted and enforced by regulatory entities

(such as consumption advisories or fishery closures), and Institutional

Controls that are part of the Implementation Work (such as conservation

easements), if any;

ii. Locations of recorded real property interests (e.g., easements,

liens) and resource interests in the property that may affect Institutional

Controls (e.g., surface, mineral, and water rights) including accurate

mapping and geographic information system (“GIS”) coordinates of such

interests; and

iii. Legal descriptions and survey maps that are prepared

according to current American Land Title Association (“ALTA”) Survey

guidelines and certified by a licensed surveyor.

VII. Schedules

32. Work Schedule. The Trustees shall prepare and update a Milestone Work

Schedule for Work and deliverables that identifies key activities and covers at least the

next five years. The Work Schedule shall be updated at least annually to reflect progress

on the Work and any adjustments to the schedule. The Trustees shall include the current

version of the Work Schedule in the Quarterly Progress Reports required by Paragraph

25 (Quarterly Progress Reports).


40

33. The Trustees shall include schedules for all activities contemplated under

the Consent Decree at the level of detail necessary to manage the Work, ensure timely

progress, and keep the Beneficiaries and Court informed of Work status, as required by

this SOW.

34. It is the intention of the Beneficiaries that the Work will be completed as

expeditiously as possible, consistent with sound scientific and engineering practices and

in compliance with all applicable regulatory and permitting requirements. In contracts to

carry out the Work, the Trustees are authorized, but not required, to provide for financial

incentives of a magnitude consistent with typical environmental remediation practices to

incentivize contractors to stay on schedule.

VIII. Permitting and Regulatory Cooperation

35. Permits, Access Agreements, and Other Permissions. The Trustees shall

endeavor to obtain all necessary regulatory approvals, permits, access agreements, or

other governmental or private permissions required to undertake the Work at the Site.

The Trustees may contract with other entities to fulfill this function.

a. The applicable Trust shall be the permit applicant for any necessary

permits or regulatory approvals and shall be the contracting entity for any access

agreements or other private contracts.

b. The Trustees shall obtain all necessary regulatory approvals,

permits, access agreements, or other permissions required to undertake the Work

at the Site at the earliest possible time and prior to initiating any sampling,


41

construction, or other Work that requires such regulatory approvals, permits,

access agreements, or other permissions.

c. The Trustees shall provide the Beneficiaries with a copy of any

permit application or other authorization application submitted to a regulatory

agency or other permitting authority for Work at the Site.

36. The Trustees shall engage in consultation and coordination with regulatory

agencies and other permitting authorities (e.g., local municipalities with jurisdiction over

portions of the Site) as early as possible to understand the applicable regulatory

requirements for the Work, to determine what approvals are required to perform Work

elements, the associated review process and timeframes needed by the agencies and/or

authorities to provide their approvals, and to build trust and cooperation with regulatory

agencies and permitting authorities. The Trustees shall cooperate fully with all regulatory

agencies and permitting authorities that have jurisdiction over any aspect of the Site.

IX. Contracting and Insurance

37. The Trusts and Trustees are authorized to retain technical consultants and

contractors to carry out the Work set forth in the Consent Decree and rely on the advice

and recommendations of such consultants and contractors, provided such advice and

recommendations are grounded in sound professional environmental engineering and

scientific principles consistent with the Standard of Care in the Consent Decree. Prior to

contracting with such technical consultants and contractors, the Beneficiaries shall have

a reasonable opportunity to comment on or object to the Trustees’ recommendations, in

accordance with Paragraph 31 (Decisions Regarding Work and Deliverables) of the


42

Consent Decree, and the terms of the applicable Trust Agreement and this SOW, prior to

finalizing any such contracts. The Trustees and Trusts may contract with an individual

or entity that has a prior relationship with a Beneficiary, subject to the right of any other

Beneficiary to object and initiate Dispute Resolution. Other than in the Trust Agreement,

this SOW, and any other contracts necessary to effectuate the Consent Decree, the

Trustees and Trusts may not contract with any Beneficiary or its corporate parents,

subsidiaries, or affiliates to perform Work at the Site.

38. Selection of Contractors. After the formation of the Trusts, and prior to

entering into contracts to implement the Work required by the Consent Decree, the

Trustees shall consult with the Beneficiaries regarding the standard contracting terms

and conditions to be used with contractors. The Trustees shall give at least ten (10)

business days’ notice to the Beneficiaries prior to entering into contract negotiations with

any potential contractor. The Beneficiaries may object to a proposed contractor by

initiating the Dispute Resolution process provided for in the Consent Decree prior to

finalization of a contract between a Trust, Trustee, and the contractor. The Trustees shall

give notice to the Beneficiaries upon executing a contract with any contractor, which shall

be provided not later than in the next Quarterly Progress Report following the date the

contract is executed.

39. Insurance Requirements for the Trustees.

a. The Trustees shall maintain insurance policies as required by

Paragraph 45 of the Consent Decree and by Section 4.13 of the operative Trust

Agreement.


43

b. On all such insurance policies, MPA, NRDC, and Mallinckrodt shall

receive insured protection with an obligation by the insurer to defend them.

40. Insurance Requirements for Contractors. In any contracts to perform

Work at the Site, the applicable Trustee shall require that consultants, contractors, and

third-party professionals obtain insurance as required by Section 4.1.3 of the operative

Trust Agreement.

X. Modifications

41. Modifications to the Statement of Work shall be in writing, signed by

authorized representatives of Plaintiffs, Mallinckrodt, and the Trustees, and shall be

effective immediately upon the Beneficiaries’ and Trustees’ written agreement. The

Trustees shall provide notice to the Court of any modification to the Statement of Work.

42. Any dispute regarding modifications to the Statement of Work shall be

resolved through the Dispute Resolution provisions set forth in Section XIV of the

Consent Decree.


APPENDIX B


No. 1:00-cv-00069-JAW (D. Me)

Form of Remediation Trust Agreement


PENOBSCOT ESTUARY MERCURY REMEDIATION TRUST AGREEMENT

BY AND AMONG

MALLINCKRODT US LLC As Settlor and Beneficiary,

Greenfield Penobscot Estuary Remediation Trust LLC

not individually but solely in its representative capacity as Trustee

AND

MAINE PEOPLE’S ALLIANCE and NATURAL RESOURCES DEFENSE COUNCIL As Beneficiaries

As of ____________________, 2021


i

Table of Contents RECITALS ......................................................................................................................................1 ARTICLE I: DEFINITIONS ...........................................................................................................2

1.1 Definitions.........................................................................................................................2 ARTICLE II: THE REMEDIATION TRUST .................................................................................5

2.1 Creation of and Transfer of Assets to the Remediation Trust ..........................................5 2.2 Objective and Purpose ......................................................................................................6 2.3 Holder of Trust Assets ......................................................................................................7 2.4 Management of Trust Assets ............................................................................................7 2.5 Investment and Safekeeping of Trust Assets ....................................................................8 2.6 Accounting ........................................................................................................................9 2.7 Remediation Trust Limitations .......................................................................................10 2.8 Termination .....................................................................................................................10

ARTICLE III: WORK AND DISTRIBUTIONS ..........................................................................10 3.1 Trust Accounts ................................................................................................................10 3.2 Payments by the Remediation Trust ...............................................................................10 3.3 Advisory Committee .......................................................................................................11 3.4 Manner of Payment .........................................................................................................12 3.5 Unclaimed Distributions .................................................................................................12

ARTICLE IV: THE TRUSTEE .....................................................................................................12 4.1 Appointment ...................................................................................................................12 4.2 Generally .........................................................................................................................13 4.3 Powers .............................................................................................................................14 4.4 Other Professionals .........................................................................................................14 4.5 Limitation of the Trustee’s Authority .............................................................................15 4.6 Reliance by the Trust Parties ..........................................................................................16 4.7 Compensation of the Trustee ..........................................................................................16 4.8 Liability of the Trust Parties ...........................................................................................17 4.9 Exculpation .....................................................................................................................17 4.10 Removal, Resignation, and Replacement of the Trustee ................................................18 4.11 Appointment of Successor Trustees ................................................................................19 4.12 No Bond ..........................................................................................................................19 4.13 Trustee Insurance ............................................................................................................19 4.14 Mutual Covenants Not to Sue .........................................................................................19

ARTICLE V: BENEFICIARIES ...................................................................................................19 5.1 Beneficiaries ...................................................................................................................19 5.2 Identification of Beneficiaries’ Representatives .............................................................20 5.3 Transfer of Beneficial Interests .......................................................................................20

ARTICLE VI: REPORTING AND TAXES .................................................................................20 6.1 Reports ............................................................................................................................20


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6.2 Other ...............................................................................................................................21 6.3 Taxes ...............................................................................................................................21

ARTICLE VII: MISCELLANEOUS PROVISIONS ....................................................................22 7.1 Amendments and Waivers ..............................................................................................22 7.2 Ex Parte Communications ...............................................................................................22 7.3 Property Assignment and Preservation ...........................................................................22 7.4 Dispute Resolution ..........................................................................................................23 7.5 Cooperation .....................................................................................................................23 7.6 Situs of the Remediation Trust .......................................................................................23 7.7 Severability .....................................................................................................................23 7.8 Sufficient Notice .............................................................................................................24 7.9 Headings .........................................................................................................................25 7.10 Actions Taken on Other Than Business Day ..................................................................25 7.11 Consistency of Agreements and Construction ................................................................25 7.12 Compliance with Laws ...................................................................................................25 7.13 No Recourse to Plaintiffs ................................................................................................25 7.14 Uniform Custodial Trust Act ..........................................................................................25 7.15 Authority to Enter into Agreement; Counterparts ..........................................................25


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PENOBSCOT ESTUARY MERCURY REMEDIATION TRUST AGREEMENT

This Penobscot Estuary Mercury Remediation Trust Agreement (the “Agreement”) is made this ___ day of ________________, 2021 (the “Effective Date”) by and among Mallinckrodt US LLC (“Mallinckrodt”), Greenfield Penobscot Estuary Remediation Trust LLC, not individually but solely in its representative capacity as trustee (“Trustee”) of the Penobscot Estuary Mercury Remediation Trust established hereby (the “Remediation Trust” or the “Trust”), Maine People’s Alliance (“MPA”), and Natural Resources Defense Council (“NRDC”).

RECITALS WHEREAS, in 2000, Plaintiffs MPA and NRDC, on behalf of their affected members, filed a complaint pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), commencing the action designated Maine People’s Alliance, et al. v. HoltraChem Manufacturing, et al., Case No. 1:00-cv-00069-JAW (D. Me.) (the “Action”). Plaintiffs’ complaint alleged that Defendants 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; and WHEREAS, a proposed Consent Decree in the Action was lodged with the Court on March 19, 2021, (the “Consent Decree”) among Mallinckrodt, MPA, and NRDC; and WHEREAS, the Consent Decree provides for (1) the establishment of the Remediation Trust and the transfer of funds to the Remediation Trust to be administered by the Trustee pursuant to this Agreement and the Consent Decree and (2) concurrent therewith, the establishment of the Penobscot Estuary Beneficial Environmental Projects Trust (the “Project Trust”) and the transfer of funds to the Project Trust to be administered pursuant to the Project Trust’s trust agreement and the Consent Decree; and WHEREAS, the Beneficiaries (defined below) and Trustee acknowledge and agree that the purpose of the Remediation Trust and the Project Trust is to fulfill Mallinckrodt’s environmental remediation and restoration obligations under the Consent Decree; and WHEREAS, in accordance with Section VII (Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot Estuary Beneficial Environmental Projects Trust) of the Consent Decree, Mallinckrodt hereby establishes the Remediation Trust as an independent entity that will hold the remediation funds provided for in the Consent Decree for the purpose of carrying out the Work (defined below) required by the Consent Decree and fulfilling other obligations as set forth in the Consent Decree and this Agreement; and WHEREAS, the Remediation Trust is to be funded in the amounts and manner set forth in the Consent Decree and this Agreement in order to provide funds for the Work and the administrative costs of the Remediation Trust; and


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WHEREAS, upon fully funding the Remediation Trust in accordance with this Agreement and the Consent Decree, including the distribution of any remaining Project Trust assets into the Remediation Trust upon the termination of the Project Trust, and Mallinckrodt’s then compliance with all obligations in this Agreement and the Consent Decree, Mallinckrodt’s obligations under this Agreement and the Consent Decree shall be fully satisfied; and WHEREAS, this Agreement and the Consent Decree govern the Remediation Trust, which is created pursuant to Section 1.468B-1, et seq. of the Treasury Regulations promulgated under section 468B of the Code (Section 468B of the Code and related Treasury Regulations, collectively, the “QSF Provisions”); and WHEREAS, Greenfield Penobscot Estuary Remediation Trust LLC has been selected to be the Trustee of the Remediation Trust and is willing to act as the Trustee in accordance with the requirements of the Consent Decree and this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and in the Consent Decree, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS 1.1 Definitions All capitalized terms shall have the meaning set forth in the Consent Decree unless otherwise defined in this Section or elsewhere in this Agreement: 1.1.1 “Agreement” has the meaning as given in the preamble. 1.1.2 “Action” has the meaning as given in the Recitals. 1.1.3 “Beneficiary” or “Beneficiaries” means Mallinckrodt, MPA, and NRDC. 1.1.4 “Code” means the Internal Revenue Code of 1986, as amended. 1.1.5 “Consent Decree” has the meaning as given in the Recitals and includes all appendices attached thereto, including but not limited to the Statement of Work. 1.1.6 “Court” means the United States District Court for the District of Maine. 1.1.7 “Day” or “Days” means 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. 1.1.8 “Effective Date” has the meaning as given in the preamble.


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1.1.9 “Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Remediation Trust) hereof. 1.1.10 “IRS” means the Internal Revenue Service. 1.1.11 “Initial Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Remediation Trust) hereof. 1.1.12 “Maine Act” means the Maine Uniform Trust Code, 18-B M.R.S.A. §§ 101 et. seq. 1.1.13 “Mallinckrodt” means 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. 1.1.14 “MPA” means Maine People’s Alliance and its successors and assigns. 1.1.15 “NRDC” means Natural Resources Defense Council and its successors and assigns. 1.1.16 “Parties” means the Plaintiffs, Mallinckrodt, and the Trustee.

1.1.17 “Person” means any individual, corporation, limited liability company,

partnership, joint venture, association, joint-stock company, trust, charitable foundation, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.

1.1.18 “Plaintiffs” means MPA and NRDC. 1.1.19 “Project Trust” has the meaning as given in the Recitals. 1.1.20 “Property” means any and all real and personal property, tangible and

intangible property, or intellectual property, and any rights or interest therein, including but not limited to all reports, deliverables, documents, calculations, plans, designs, specifications, drawings, reports, maps, photographs, computer printouts, data, notes, and other documents or information of whatsoever nature or kind (in whatever form, format, or media) arising from the performance of the Work under the Consent Decree and this Agreement.

1.1.21 “QSF Provisions” has the meaning as given in the Recitals. 1.1.22 “Remediation Trust” or “Trust” has the meaning given in the preamble. 1.1.23 “Section” means a portion of this Agreement, the Consent Decree, or the

Statement of Work, in each case as indicated, identified by an Arabic numeral or numerals. A


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reference to any Section denoted by an Arabic numeral or numerals includes any subsections thereof.

1.1.24 “Site” means 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 to the Consent Decree, which is Figure 1-1 of the Phase III Engineering Study Report, ECF No. 972-1, prepared by Amec Foster Wheeler Environment & Infrastructure, Inc. (n/k/a Wood Environment & Infrastructure Solutions, Inc.), including any intertidal areas that fringe the Study Reaches.

1.1.25 “Statement of Work” or “SOW” means the document attached as Appendix

A to the Consent Decree and describing the activities that must be performed to implement the remediation activities at the Site required by the Consent Decree.

1.1.26 “Tax” or “Taxes” means all federal, state, and local taxes that may be

imposed on the Remediation Trust from time to time by any taxing authority. 1.1.27 “Trust Account” has the meaning given in Section 2.1.4 (Creation of the

Trust Accounts) hereof. 1.1.28 “Trust Administrative Account” means the account as described in the

Consent Decree and established pursuant to Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to be used for Trust Administrative Costs and to which Funding is specially allocated as described in Paragraph 15 (Trust Administrative Costs) of the Consent Decree.

1.1.29 “Trust Assets” means (a) the Funding to be transferred to the Remediation

Trust pursuant to the Consent Decree and (b) such other assets acquired, earned, or held by the Remediation Trust from time to time pursuant to this Agreement, the Consent Decree, or an order of the Court.

1.1.30 “Trust Administrative Costs” refer to all costs, obligations, or liabilities

associated with administration and management of the Remediation Trust, to be paid from the Administrative Account, including taxes, investment and safekeeping costs, insurance, legal, accounting, bookkeeping, financial affairs, and other costs, fees, and expenses not directly related to the Work;

1.1.31 “Trust Parties” means, collectively, the Remediation Trust, the Trustee, and the Trustee’s member’s shareholders, officers, directors, employees, and managers of the Trustee; 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 Trustee to assist it in carrying out its responsibilities under this Agreement and the Consent Decree.

1.1.32 “Trust Remediation Account” means the account established pursuant to

Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of


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the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to satisfy the Trustee’s obligations for specific Work Categories.

1.1.33 “Trustee” means the Person appointed to be the trustee of the Remediation

Trust consistent with the Consent Decree and this Agreement. 1.1.34 “Work Category” or “Work Categories” means, individually or collectively,

the Work described in Paragraphs 10 (Orrington Reach), 11 (Mobile Sediments and Surface Deposits), 12 (Orland River and East Channel around Verona Island), 13 (Beneficial Environmental Projects), and 14 (Long-Term Monitoring) of the Consent Decree to which Funding is specifically allocated.

1.1.35 “Work” means all activities and obligations which the Trust, Trustee, or

Mallinckrodt is required to perform under the Consent Decree.

ARTICLE II THE REMEDIATION TRUST

2.1 Creation of and Transfer of Assets to the Remediation Trust. 2.1.1 Pursuant to the Consent Decree, Mallinckrodt hereby establishes the Remediation Trust under the Maine Act for the benefit of the Beneficiaries, and Mallinckrodt hereby transfers, assigns, and delivers to the Remediation Trust, or to the Trustee, not individually but solely in its representative capacity as Trustee of the Remediation Trust, if the law of Maine prohibits a trust entity from holding such title, for the benefit of the Beneficiaries, the Initial Funding as Trust Assets. The Trustee hereby accepts and agrees to hold the Trust Assets in the Remediation Trust for the benefit of Beneficiaries for the purposes described in Section 2.2 (Objective and Purpose) below, subject to the terms of the Consent Decree, this Agreement, and any applicable orders of the Court.

2.1.2 Transfer of Funding to the Remediation Trust. Within twenty (20) days after the Effective Date, Mallinckrodt shall cause to be transferred to the Remediation Trust cash in the amount of $9.5 million (the “Initial Funding”). Thereafter, in accordance with Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, Mallinckrodt shall transfer additional funds to the Remediation Trust based on the invoices and five-year budget forecasts prepared by the Trustee at such times and in such amounts as determined in accordance with Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, subject to the overall Capped Funding for the two Trusts and the Capped Funding for each Work Category and Trust Account set forth in Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs) and Paragraph 18 (Capped Funding) of the Consent Decree. Mallinckrodt shall have no funding obligation beyond the Capped Funding amount in the Consent Decree. The Trustee may seek Funding from the financial assurance at such times, in such amounts, and subject to the requirements set forth in Paragraph 20(e) (Financial Assurance: Drawdown) of the Consent


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Decree. The Remediation Trust may also receive Funding from the Project Trust. The Initial Funding and subsequent payments provided for in this Section together constitute the “Funding.”

2.1.3 Trust Invoices. The Trustee shall deliver invoices, with the necessary

documentation, to Mallinckrodt for Funding as required and subject to the limits set forth in this Agreement and Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. The Trustee shall not invoice Mallinckrodt for any Work on Beneficial Environmental Projects until the Remediation Trust’s right, if any, to Committed Funding vests in accordance with Paragraphs 13 and 33 (Beneficial Environmental Projects; Termination of Project Trust) of the Consent Decree.

2.1.4 Creation of the Trust Accounts. Upon receipt of the Initial Funding, the

Trustee shall create two segregated Trust Accounts within the Remediation Trust: the Trust Remediation Account and the Trust Administrative Account. The purpose of the Trust Remediation Account shall be to hold and invest funds and proceeds to fund Work in the Work Categories as selected, approved, and authorized pursuant to the terms of the Consent Decree. Upon receipt of the Initial Funding, the Trustee shall segregate the Trust Remediation Account into separate subaccounts for each Work Category. As the Trustee receives Funding allocable to the Trust Remediation Account, the Trustee will allocate such Funding among the Work Categories’ subaccounts in accordance with the allocation stated on the invoice to which such Funding relates, all as described in Paragraphs 19 (Initial Funding of the Trusts), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. The Trustee may create additional subaccounts within the Trust Remediation Account, and within any Work Category subaccount, dedicated for specific uses as may be deemed necessary in the sole discretion of the Trustee to comply with the terms of and implement the Consent Decree and this Agreement pursuant to Paragraph 24 (Creation of Trust Accounts) in the Consent Decree. The Trust Administrative Account shall be used by the Trustee for Trust Administrative Costs. Funding from the Trust Remediation Account, or its subaccounts, may not be used for any purpose of the Trust Administrative Account, and funding from the Trust Administrative Account, or any subaccounts, may not be used for any purpose of the Trust Remediation Account, except as otherwise provided in this Agreement or in the Consent Decree. The Initial Funding of each of the Trust Accounts shall be as set forth in the Consent Decree. The separate accounts are referred to in this Agreement individually as a “Trust Account” and collectively as the “Trust Accounts.” Subject to Section 2.5 (Investment and Safekeeping of Trust Assets), the income, gains, and losses from any investment of the Trust Assets shall be allocated, paid, and credited to, and/or deducted from, such Trust Account. 2.2 Objective and Purpose. 2.2.1 The exclusive purposes and functions of the Remediation Trust are to hold the Trust Assets, carry out administrative functions related to the Trust Assets, oversee, implement and fund Work at the Site, oversee, implement and fund Beneficial Environmental Projects, pay future oversight costs and other costs as provided herein and in the Consent Decree, and carry out Long-Term Monitoring at the Site. The Remediation Trust shall contract with and retain such environmental, engineering, and technical consultants and contractors and other third-party


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professionals, as the Trustee may deem necessary, to advise and assist the Trustee in carrying out the activities necessary to achieve the purposes of the Consent Decree. The Remediation Trust shall be responsible for securing all regulatory permits and other approvals required to implement the Work required by the Consent Decree. The performance by the Trustee of its duties under this Agreement shall not be considered to be the Trustee’s engaging in a trade or business. 2.2.2 The Remediation Trust is established pursuant to this Agreement and the Consent Decree and approved by the Court for the sole purpose of resolving Plaintiffs’ claims asserting environmental liabilities of Mallinckrodt. Mallinckrodt’s Funding of the Remediation Trust, pursuant to Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs) and 18 (Capped Funding) of the Consent Decree and in accordance with Section 2.1.2 (Transfer of Funding to the Remediation Trust) hereof up to the Capped Funding, shall fully satisfy Mallinckrodt’s liabilities with respect to the Action, provided Mallinckrodt is then in compliance with all obligations under the Consent Decree. As provided in the Consent Decree, the Court will retain continuing jurisdiction over the Remediation Trust and the underlying legal action. 2.3 Holder of Trust Assets. The Remediation Trust shall be the exclusive holder of the Trust Assets and Trust Accounts described herein for purposes of 31 U.S.C. § 3713(b). 2.4 Management of Trust Assets. 2.4.1 Consistent with this Agreement and the Consent Decree, the Trustee shall use the Trust Remediation Account to provide funding and proceeds for Work set forth in Paragraphs 10 through 14 (Orrington Reach through Long-Term Monitoring) and Appendix A (Statement of Work) of the Consent Decree as selected, approved, and authorized pursuant to the terms of the Consent Decree and the Statement of Work. Except as otherwise specifically provided herein, the Trustee shall solely fund Work in a specific Work Category with the Trust Assets held in the Trust Account for that Work Category. The Trustee shall use the Trust Administrative Account funds solely to pay Trust Administrative Costs. To the extent the Person then serving as Trustee provides services to the Remediation Trust outside of its capacity as Trustee, costs incurred by the Remediation Trust with respect to such services shall be paid from the Trust Account from which such costs would be paid if the services were performed by a third-party. 2.4.2 As set forth in Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) of the Consent Decree, the Trustee by October 1 of each year, beginning with the first such date after the Effective Date, shall prepare a draft annual budget, work plan, and cash flow projections by quarter for the next calendar year for the Trust Remediation Account and the Trust Administrative Account. Decisions regarding annual budgets, work plans, and cash flow projections will be made in accordance with Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) of the Consent Decree. 2.4.3 Except as otherwise set forth in this Section 2.4.3 and Section 2.5 (Investment and Safekeeping of Trust Assets), the Trust Assets held in a Trust Account shall not be commingled with, distributed to, or used to fund Work under another Trust subaccount. At such time that it is determined by the Trustee, in accordance with Paragraphs 10 through 14 (Orrington Reach through Long-Term Monitoring) of the Consent Decree and after consultation with the


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Beneficiaries, that Work in a Work Category is complete (in accordance with the Statement of Work), or after a sufficient amount of Trust Assets has been set aside for the completion of such Work, the remaining Trust Assets in such Work Category’s subaccount may be transferred to the subaccount of another Work Category, after which such funds shall be deemed a part of the Trust Assets of such transferee subaccount and shall be used to fund Work in such Work Category, all in accordance with Paragraphs 10 through 14 and 17 (Orrington Reach through Long-Term Monitoring; Remaining Funding) of the Consent Decree. No Contingent Funding remaining for any Work Category may be transferred to another Trust Account or subaccount and in no event shall remaining Contingent Funding be used to fund Work in any other Work Category. 2.5 Investment and Safekeeping of Trust Assets. 2.5.1 The Trust Assets shall be held in trust, segregating Trust Administrative Account and Trust Remediation Account funds, with Remediation Account funds further segregated into sub-accounts by Work Category. All interest investment income, and other amounts earned (“Investment Income”) 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 this Agreement and the Consent Decree, provided, however, that the Trustee shall first deduct from any Investment Income realized an amount equal to the estimated Taxes owed on such Investment Income and costs associated with investment of the Trust Assets to which such Investment Income relates, all as reasonably determined by the Trustee based on applicable income tax withholding and reporting requirements, and deposit that sum into the Trust Administrative Account. The Trustee shall have no liability for interest or producing income on any moneys received by the Remediation Trust hereunder and held for distribution or payment as provided in this Agreement, except as such interest or amounts shall actually be received by the Remediation Trust. The Trustee shall have the right to administer, or engage an investment manager to administer, investments of any Trust Assets with the purpose of deriving a reasonable income from the Trust Assets pending periodic distributions in accordance with Article III hereof, taking into account the need for the safety and liquidity of principal required by the purposes of the Remediation Trust, and not of speculating or carrying on of any business for profit or derivation of gains therefrom. However, the right and power of the Remediation Trust to invest and reinvest the Trust Assets or any income earned by the Remediation Trust shall be limited to the right and power to invest and reinvest any part of all of such Trust Assets (pending periodic distributions in accordance with Article III hereof) in the following investment vehicles, provided that at least 50% (and, at the Trustee’s discretion, up to 100%) of the Trust Assets in each Trust Account shall, at any given time, be invested in categories (1), (2), and/or (3):

(1) Marketable obligations issued, guaranteed, or secured by the United States of America or an agency thereof (including, without limitation, government-sponsored enterprises such as Federal National Mortgage Association [Fannie Mae] and Federal Home Loan Mortgage Corporation [Freddie Mac]);

(2) Certificates of deposit with a domestic office of any national or state

bank or trust company organized under the laws of the United States of America or any state therein and having capital, surplus, and undivided


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profits of at least $750,000,000, or in such institutions not meeting this specified capital requirement to the extent that such deposits are federally insured;

(3) Deposit accounts and/or money market funds;

(4) No-load mutual funds or exchange traded funds;

(5) A diversified portfolio of equities traded on a recognized national

exchange that meet the standards for publicly listed companies;

(6) A diversified portfolio of bonds. The overall average rating of the portfolio shall have a rating of Double A or better, with no individual bond rated below A, exclusive of any bond insurance; and

(7) Any other investment vehicle approved in writing by the Beneficiaries.

The Trustee shall consult initially and from time to time with the Beneficiaries

regarding the nature and allocation of investments in the Trust Accounts. The Beneficiaries expressly agree that the Trustee shall have satisfied applicable standards and requirements and any duty to diversify by investing the Trust Assets in categories (1), (2), (3), and/or (6) above.

2.5.2 Except as set forth in Section 2.4.3 and this Section 2.5, the Trustee is

expressly prohibited from commingling Trust Accounts, provided that funds in separate Trust Accounts may be commonly managed, may be invested in common instruments, and may be aggregated with other funds for investment purposes so long as they remain accounted for separately. 2.5.3 Nothing in this Section 2.5 shall be construed as authorizing the Trustee to cause the Remediation Trust to carry on any business or to divide the gains therefrom, including without limitation, the business of an investment company or a company “controlled” by an “investment company,” required to register as such under the Investment Company Act of 1940, as amended. The sole purpose of this Section 2.5 is to authorize the investment of the Trust Assets in the Trust Accounts or any portions thereof as may be reasonably prudent pending use of the proceeds for the purposes of the Remediation Trust. 2.5.4 All costs and risk related to the investment of the Trust Assets in accordance with the guidelines set forth in this Section 2.5 shall be borne solely by the Remediation Trust. Mallinckrodt shall have no responsibility for, interest in, or liability whatsoever with respect to investment decisions or the actions of the Trustee, or any transactions executed by the Trustee, which shall in no event increase Mallinckrodt’s financial obligations as set forth in Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs) and 18 (Capped Funding) of the Consent Decree. 2.6 Accounting. The Trustee shall maintain proper books, records, and accounts relating to all transactions pertaining to the Remediation Trust, and the assets and liabilities of, and claims


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against or assumed by, the Remediation Trust as may be necessary to enable the Trustee to make a full and proper accounting thereof and to comply with applicable provisions of law and good accounting practices and the obligations set forth in Paragraphs 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Except as otherwise provided herein or by the Consent Decree, the Trustee shall not be required to file any accounting or seek approval of the Court with respect to the administration of the Remediation Trust, or as a condition for making any payment or distribution out of the Trust Assets. Beneficiaries shall have the right upon 14 days’ prior written notice delivered to the Trustee to inspect such books and records. 2.7 Remediation Trust Limitations. 2.7.1 No Beneficiary, nor any of its components, agencies, officers, directors, agents, employees, affiliates, successors, or assigns, shall be deemed to be an owner, operator, trustee, partner, agent, shareholder, officer, or director of the Remediation Trust. 2.7.2 The Remediation Trust is irrevocable. Mallinckrodt (i) shall not retain any ownership whatsoever with respect to the Trust Assets and shall not retain any residual interest whatsoever with respect to the Trust Assets, including, but not limited to, the funds transferred by Mallinckrodt to fund the Remediation Trust pursuant to the terms of the Consent Decree, except as provided in Sections 2.8 and 3.5 (Termination; Unclaimed Distributions); (ii) shall not have any liabilities or funding obligations with respect to the Remediation Trust (to the Trustees, the Beneficiaries, or otherwise) other than the Funding obligations expressly set forth in the Consent Decree; (iii) shall not have any liability or obligation to pay tax on any income or gains from any investment of the Trust Assets; and (iv) shall not have any rights or role with respect to the management or operation of the Remediation Trust except in its capacity as a Beneficiary and as expressly provided in the Consent Decree and this Agreement. 2.8 Termination. The Trustee shall not unduly prolong the duration of the Remediation Trust and shall at all times endeavor to perform the Work and accordingly effect the distribution of Trust Assets in accordance with the terms hereof, and to terminate the Remediation Trust as soon as practicable so long as consistent with this Agreement and the Consent Decree. If the Consent Decree is not entered by the Court, the Remediation Trust will terminate and all remaining funds will be returned to Mallinckrodt.

ARTICLE III WORK AND DISTRIBUTIONS

3.1 Trust Accounts. The Trustee shall establish, maintain, and hold Trust Accounts consistent with the Consent Decree and Section 2.1 (Creation of and Transfer of Assets to the Project Trust) of this Agreement to administer the Trust Assets and distributions therefrom. 3.2 Payments by the Remediation Trust. 3.2.1 On or before October 1 of each calendar year, the Trustee shall provide the Beneficiaries, to the extent required in the Consent Decree, with balance statements, proposed


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budgets, work plans, and forecasts as described in Section 2.4.2 of this Agreement and Paragraphs 19 (Initial Funding of the Trusts), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Except as otherwise provided in Section 3.2.2 (Emergency Funding) below, the Trustee shall not pay any expense that has not been provided for in a budget, revised budget or revised line item of a budget that the Beneficiaries have not objected to pursuant to the terms of this Agreement and the Consent Decree. Nevertheless, the Trustee may incur or pay ongoing or recurring expenses included in the prior year’s budget that occur between the time a proposed annual budget is submitted and the time allowed for the Beneficiaries to object and initiate the dispute resolution process. 3.2.2 Emergency Funding. In the event of an emergency at the Site arising from the Work performed or funded by the Remediation Trust that, as may be deemed in the Trustee’s sole discretion, requires immediate remedial action to occur within a timeframe that does not permit sufficient time to amend the annual budget, the Trustee may utilize funding, of not more than $250,000, from the Trust Remediation Account to undertake and fund actions necessary to respond to the emergency. Nothing in this paragraph shall preclude the payment or reimbursement of such emergency funding through the annual budget or budget revision process; provided, however, that use of emergency funding under this paragraph shall in no event increase Mallinckrodt’s financial obligations as set forth in Paragraph 18 (Capped Funding) of the Consent Decree. 3.2.3 Expenses of the Remediation Trust. The expenses of the Remediation Trust relating to Work in a Work Category shall be paid solely from the Trust Assets held in the Trust subaccount for such Work Category. The Remediation Trust’s Trust Administrative Costs shall be paid solely from the Trust Assets held in the Trust Administrative Account. 3.2.4 Pre-Court Endorsement Date Funding. Mallinckrodt will transfer the Funding to the Remediation Trust to fund the Trustee’s Work and its other obligations pending approval of the Consent Decree by the Court. Where the Trustee and the Beneficiaries agree that the Trustee accrued fees and expenses prior to the Court’s endorsement of the Consent Decree in furtherance of activities that would constitute Work in a Work Category under the Consent Decree, those fees and expenses shall be paid from the Trust Assets held in the Trust subaccount for the applicable Work Category and Trust Administrative Costs from the Trust Administrative Account. After the effective date of the Consent Decree (or earlier if requested by the Beneficiaries), the Trustee will submit detailed invoices reflecting its fees and expenses for comment and objection by the Beneficiaries. The Trustee shall be entitled to remuneration from the Remediation Trust Administrative Account for its reasonable fees and expenses incurred prior to the Effective Date in connection with the Consent Decree, this Agreement, and planning and creation of the Remediation Trust (the “Pre-Effective Date Fees”), which remuneration shall not exceed $38,000. Within 45 days after the Effective Date of the Remediation Trust, the Remediation Trustee will submit detailed invoices reflecting its Pre-Effective Date Fees for remuneration from the Trust Administrative Account for comment and non-objection by the Beneficiaries. 3.3 Advisory Committee. The Trustee shall create an informal Advisory Committee composed of representatives of the Beneficiaries, including at least one representative for Plaintiffs and one


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representative for Mallinckrodt. The role of any such Advisory Committee shall be to (i) facilitate dialogue between the Trustee and Beneficiaries, (ii) seek to build consensus among the Beneficiaries, (iii) coordinate Work by the Remediation Trust and Project Trust, and (iv) provide informal consultation to the Trustee regarding management of the Remediation Trust and execution of the Work required by the Consent Decree. The Advisory Committee shall not have any formal approval or decision-making authority. The Advisory Committee shall meet at the request of the Trustee, on a schedule and by means that are mutually agreeable to the Beneficiaries and Trustee. Each Beneficiary shall designate one or more representatives to the Advisory Committee, each of whom may be an employee, attorney, or consultant for the Beneficiary. 3.4 Manner of Payment. Cash payments made by the Remediation Trust pursuant to the Consent Decree and this Agreement shall be in United States dollars by checks drawn on a domestic bank whose deposits are federally insured as selected by the Trustee, or by wire transfer from such a domestic bank, at the option of the Trustee. When selecting or changing the domestic bank to be used for these purposes, the Trustee shall give the Beneficiaries notice and an opportunity to comment or object. 3.5 Unclaimed Distributions. In the event that any Contingent Funding remains in the Remediation Trust after it has been determined by the Court, in such manner as is required by the Consent Decree, that the Remediation Trust has completed all Work set forth under the Consent Decree to which use such Contingent Funding is restricted and after Remaining Funding has been used as provided in Paragraph 17 (Remaining Funding), any remaining Contingent Funding shall be transferred to Mallinckrodt within 30 days of termination of the Remediation Trust.

ARTICLE IV THE TRUSTEE

4.1 Appointment. 4.1.1 Trustee. Greenfield Penobscot Estuary Remediation Trust LLC is hereby appointed subject to approval by the Court to serve as the Trustee to administer the Remediation Trust and the Trust Accounts and perform the Work set forth in the Consent Decree and this Agreement, and the Trustee hereby accepts such appointment and agrees to serve in such representative capacity, effective upon the Effective Date. Subject to the provisions in Section 4.10 (Removal, Resignation, and Replacement of the Trustee) herein, the term of the Trustee shall be for ten (10) years at which time the Trustee may resign, be reappointed by the Beneficiaries, or be terminated. Any successor Trustee shall be jointly proposed by the Beneficiaries and appointed by the Court in accordance with Section 4.11 (Appointment of Successor Trustees) of this Agreement. 4.1.2 Consultants, Contractors, and Third-Party Professionals. The Remediation Trust is authorized to contract with any environmental, engineering, or technical consultants and contractors, and other third-party professionals to carry out the Work at the Site and otherwise fulfill the purposes of the Remediation Trust and its obligations under the Consent Decree. Such consultants, contractors, and third-party professionals shall be recommended by the Trustee and shall contract with the Remediation Trust, and the Beneficiaries shall have reasonable opportunity to comment on or object to these recommendations in accordance with Paragraphs 31 and 38


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(Decisions Regarding Work and Deliverables; Selection and Hiring of Contractors) of the Consent Decree, prior to finalizing any such contracts. The legal relationship of each consultant, contractor, and third-party professional to the Remediation Trust and Trustee is that of an independent contractor professional, not that of an entity employed by the Remediation Trust or the Trustee (and in no event shall be deemed a Trust Party).

4.1.3 Third-Party Insurance. Each consultant, contractor, and third-party professional engaged by the Remediation Trust in accordance with this Section to carry out the Work shall be required to obtain, at its own expense (except with respect to any project-specific insurance procured in accordance with this Section), as appropriate (based on, among other things, the contemplated scope of services to be provided by such professional), general, environmental, professional, and/or other liability insurance in the range of $1,000,000 to $25,000,000 as agreed to by the Remediation Trust after consultation with the Beneficiaries and an opportunity for the Beneficiaries to comment on or object to any proposed insurance coverage(s). Upon the recommendation of the Trustee, and to the extent project-specific insurance is necessary, the Remediation Trust may reimburse or pay for project-specific insurance for a consultant, contractor, or third-party professional, subject to an opportunity for the Beneficiaries to comment or object. To the fullest extent permitted by applicable law, (i) insurance policies obtained in accordance with this Section shall (A) be maintained for a period of two years following completion of the applicable Work, (B) name the Trust Parties, and the Beneficiaries of the Remediation Trust as additional insureds, (C) be issued by an insurer rated A-VII or higher in Best’s Insurance Manual or equivalent and that is qualified to do business in the jurisdiction where the Site is located, and (D) provide that the Remediation Trust be given prior written notice of the termination or expiration of such policy or any material changes in coverage or terms under the policy, (ii) all such policies shall be primary to any insurance maintained by the Remediation Trust and shall state the same with respect to liabilities that the Trust Parties and the Beneficiaries may incur that are attributable to the Site, and (iii) professionals insured in accordance with this Section shall waive, and require their insurers to waive, all rights of subrogation against the Remediation Trust, Trustee, Trust Parties, and the Beneficiaries. The insurance policies shall cover, among other things, negligence committed by the consultant, contractor, or third-party professional in carrying out the Work at the Site. In addition, unless waived by the Remediation Trust in its sole discretion, each subcontractor retained by a professional engaged by the Remediation Trust in accordance with this Section to carry out a portion of the Work shall obtain and maintain insurance of similar types in amounts that accord with the professional’s usual practice for such Work when performed by subcontractors, naming the Remediation Trust, Trustee, and the Beneficiaries of the Remediation Trust as additional insureds to the fullest extent permitted by applicable law.

4.2 Generally. The Trustee’s powers are exercisable solely in a fiduciary capacity and solely for the benefit of the Beneficiaries consistent with, and in furtherance of, the purposes of the Remediation Trust and the Consent Decree. The Trustee shall have the authority to bind the Remediation Trust and any successor Trustee, or successor or assign to the Remediation Trust, but shall for all purposes hereunder be acting in its representative capacity as Trustee and not individually. Notwithstanding anything to the contrary contained herein, the Trustee shall not be required to take action or omit to take action if, after the advice of counsel, the Trustee believes in good faith such action or omission is not consistent with the Trustee’s fiduciary duties. The Trustee shall not be deemed to have breached its fiduciary duties in connection with any act or omission


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that is consistent with written direction from the Court. The Trustee shall have no obligation to perform any activities for which the relevant Trust Account lacks sufficient funds. 4.3 Powers. In connection with the administration of the Remediation Trust and except as otherwise set forth in this Agreement or the Consent Decree, the Trustee is authorized to perform any and all acts necessary to accomplish the purposes of the Remediation Trust. Except as provided in the Consent Decree and Section 4.5 (Limitations on the Trustee’s Authority) below, the powers of the Trustee shall include, without limitation, each of the following: (i) to receive, manage, invest, reinvest, supervise, vote, and protect the Trust Assets, withdraw, make distributions, and pay Taxes (if applicable or required) and other obligations owed by the Remediation Trust or the Trust Accounts from funds held by the Trustee, the Remediation Trust, and/or the Trust Accounts in accordance with the Consent Decree, and withhold and pay to the appropriate taxing authority any withholding taxes on distributions from the Remediation Trust, if applicable; (ii) to engage employees and professional Persons to assist the Remediation Trust and/or the Trustee with respect to the responsibilities described herein; (iii) to make distributions of the Trust Assets from the Trust Accounts for the purposes contemplated in this Agreement and the Consent Decree; (iv) to hold Property in the name of the Trustee in its capacity as such; (v) to establish and maintain a public-facing website and to engage in other Community Involvement activities in accordance with section IV (Community Involvement) of the Statement of Work appended to the Consent Decree; (vi) to purchase any insurance policies required, or as the Trustee may determine prudent, to protect the Remediation Trust, the Trust Assets, or the Trustee from any and all claims that might be asserted against each relating to the Remediation Trust; (vii) to file quarterly documents in Court on behalf of the Trustee and the Remediation Trust in accordance with the Consent Decree; (viii) to file all necessary state and federal filings and to provide information as required by law, this Agreement, or the Consent Decree; (ix) to determine the Work to be funded and implemented by the Remediation Trust as Beneficial Environmental Projects pursuant to Paragraph 13 (Beneficial Environmental Projects) of the Consent Decree, all as in accordance with the requirements set forth in the Consent Decree and subject to the limitations set forth in Section 4.5.2 (Coordination with Project Trust) below; (x) to engage in all communications, take all actions, and execute all agreements, instruments, and other documents necessary to draw down a Financial Assurance to the extent authorized in Paragraph 20(e) (Financial Assurances, Drawdown) of the Consent Decree; and (xi) to effect all actions, including defending or resolving claims asserted against the Remediation Trust and/or Trustee, in its capacity as such and subject to Section 4.9 (Exculpation), and execute all agreements, instruments, and other documents necessary to implement this Agreement, including to exercise such other powers as may be vested in or assumed by the Remediation Trust and/or the Trustee pursuant to this Agreement and any order of the Court, or as may be necessary and proper to carry out the provisions of this Agreement and the Consent Decree. No Person dealing with the Remediation Trust shall be obligated to inquire into the authority of the Trustee in connection with the protection, conservation, or disposition of Trust Assets; provided, however, that the foregoing does not limit the Trustee’s obligations to provide information under Paragraph 4 of the Consent Decree. The Trustee is authorized to execute and deliver all documents on behalf of the Remediation Trust to accomplish the purposes of this Agreement and the Consent Decree. 4.4 Other Professionals. The Trustee is authorized to retain on behalf of the Remediation Trust and pay such other professionals as the Trustee (in accordance with a budget approved pursuant to


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Section 3.2 above) may deem necessary or appropriate to assist the Trustee in carrying out its powers and duties under this Agreement and the Consent Decree, including, without limitation: (i) legal counsel to the Remediation Trust and/or the Trustee, in its capacity as such and subject to Section 4.9 (Exculpation); (ii) one or more public accounting firms to perform such bookkeeping functions, reviews, and/or audits of the financial books and records of the Remediation Trust as may be appropriate in the Trustee’s reasonable discretion and to prepare and file any tax returns or informational returns for the Remediation Trust or the Trust Accounts as may be required; and (iii) investment advisors, custodians, security personnel, surveyors, contractors, clerks, and other third parties. The Trustee may pay all such Persons compensation for services rendered and expenses incurred in accordance with budgets approved as provided in Section 3.2 and from the appropriate Trust Account consistent with Sections 2.1.4 and 2.4.1 herein (Creation of the Trust Accounts; Management of Trust Assets). Fees due to an investment advisor that are expressed as a percentage of assets under management or return on investment need not be included in a budget. Beneficiaries shall be given notice and the ability to object to the use or retention of other professionals. 4.5 Limitation of the Trustee’s Authority.

4.5.1 General Limit. The Remediation Trust and the Trustee shall not 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. The Remediation Trust and the Trustee shall not take any actions that would cause the Remediation Trust to fail to qualify as a qualified settlement fund under the QSF Provisions.

4.5.2 Coordination with Project Trust. The Trustee shall coordinate with the

trustee of the Project Trust with respect to Work, Invoice Amounts, and financial statements, all in accordance with Paragraphs 19 (Initial Funding of the Trusts), 20 (Financial Assurance), 25 (Trustees), 33 (Termination of the Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Upon receiving a proposed timeline for termination of Project Trust, the Trustee shall work in good faith with the trustee of the Project Trust to facilitate transfer of the Project Trust’s assets and liabilities to the Remediation Trust in accordance with Paragraphs 13 (Beneficial Environmental Projects) and 33 (Termination of the Project Trust) of the Consent Decree. The Trustee shall accept and receive into the Remediation Trust’s Trust Accounts all assets and liabilities of the Project Trust, including continuation of Work on Beneficial Environmental Projects then outstanding, unless the Trustee reasonably determines that receipt thereof would violate the Trustee’s fiduciary duties to the Remediation Trust or another obligation of the Trustee created in this Agreement or the Consent Decree, which determination shall be made and delivered to the proper Persons in accordance with Paragraph 33 (Termination of the Project Trust) of the Consent Decree. The Trustee shall not cause the Remediation Trust to accept any distribution from the Project Trust to the extent it would cause the Remediation Trust to fail to qualify as a qualified settlement fund under the QSF Provisions.


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4.6 Reliance by the Trust Parties. Except as may otherwise be provided herein: (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 the Consent Decree; (ii) the Trust Parties may retain and reasonably rely upon legal counsel, financial or accounting advisors, technical consultants and contractors, and other professionals and experts as appropriate, within the approved budget allowances for such expenses, and shall not be personally liable for any action taken or not taken in accordance with the advice thereof unless the Court, by a final order, finds that they were grossly negligent or committed fraud or willful misconduct; and (iii) Persons dealing with the Trust Parties shall look only to the applicable insurance policies maintained by one or more professionals retained hereunder in the first instance, then to the applicable insurance policies maintained by the Trustee, and, finally, in the event and to the extent insurance available under this Section is insufficient, to the funds in the Trust Administrative Account to satisfy any liability incurred by the Trust Parties to such Person in carrying out the terms of this Agreement or any order of the Court, and the Trust Parties shall have no personal obligations to satisfy any such liability other than as provided in Section 4.9 (Exculpation). 4.7 Compensation of the Trustee. 4.7.1 The Remediation Trust shall pay its own reasonable and necessary costs and expenses and shall reimburse the Trustee for the actual reasonable out-of-pocket fees, costs, and expenses to the extent incurred by the Trustee in connection with the Trustee’s duties hereunder, including, without limitation, necessary travel, lodging, office rent (to be paid directly by the Remediation Trust), professional fees, postage, photocopying, telephone, and facsimile charges, all in accordance with an annual budget or fee schedule approved as provided in Section 3.2 and upon receipt of periodic billings. Any Trust Parties who perform services for the Remediation Trust shall be entitled to receive reasonable compensation for services rendered on behalf of the Remediation Trust in accordance with an annual budget or fee schedule, subject to review and comment by the Beneficiaries and the dispute resolution terms of this Agreement and the Consent Decree. The Trustee’s fee rates for its services as the Trustee shall be provided to the Beneficiaries for comment and objection prior to the Effective Date and prior to the Trustee applying any adjusted fee schedule. 4.7.2 The Trust Assets shall be subject to the claims of the Trustee, and the Trustee shall be entitled to reimburse itself, for services performed as Trustee, out of any available cash in the Trust Administrative Account or, for services performed in furtherance of the Work for any Work Category at the Site, in accordance with the provisions of Section 2.4.1, out of available funds in the Trust Remediation Account, and the Remediation Trust shall be obligated to pay for actual out-of-pocket expenses and for actual hours worked. 4.7.3 All compensation and other amounts payable to the Trustee shall be paid from the Trust Assets.


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4.8 Liability of the Trust Parties. 4.8.1 The Beneficiaries acknowledge that the Trust Parties did not create, cause, or contribute to the circumstances that give rise to the need to perform Work, including existing conditions or existing contamination at the Site. Therefore, nothing in the Consent Decree, Statement of Work, or this Agreement shall require 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.

4.8.2 In no event shall any Trust Parties be held liable to any third parties for any

liability, action, or inaction of any other party, including Mallinckrodt or any other Trust Party. The liability of the Trust Parties shall be limited as provided in the Consent Decree and this Agreement, and the Trust Parties shall, further, be indemnified and exculpated in accordance with Section 4.9 of this Agreement. The Trustee shall not be deemed in breach of its duties or responsibilities on account of the insufficiency of funds in the Remediation Trust. 4.8.3 No provision of this Agreement or the Consent Decree shall require the Trustee to expend or risk its own personal funds or otherwise incur any personal financial liability in the performance of any of its duties or the exercise of any of its authorities as Trustee hereunder, except as provided in Section 4.13 (Trustee Insurance) and except on account of the Trustee’s gross negligence, fraud, or willful misconduct as provided in Section 4.9. 4.8.4 To the fullest extent permitted by applicable law, except as required or authorized by the Consent Decree, the Trust Parties shall not be deemed an owner or operator of the Site or an owner, operator, generator, arranger, or transporter of hazardous waste at the Site under CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites Law, or similar laws on account of the Trust Parties’ performance of Work other than as provided in Section 4.9. The Trust Parties shall not be liable for any injury or damages to Persons or property resulting from acts or omissions of any Person in implementing the requirements of the Consent Decree or this Agreement other than as provided in Section 4.9. 4.9 Exculpation.

4.9.1 Except as otherwise provided in the Consent Decree or this Agreement, to the fullest extent permitted by applicable law, the Trust Parties are exculpated by all Persons of and from any and all claims, causes of action, and other assertions of liability arising out of the discharge of the powers and duties conferred upon the Remediation Trust and/or Trustee by the Consent Decree or this Agreement. No Person will be allowed to pursue any claims or causes of action against any Trust Party for any claim against Mallinckrodt, for making payments in accordance with the Consent Decree or this Agreement, or for implementing the provisions of the Consent Decree or this Agreement. Notwithstanding anything in this Section 4.9 or elsewhere in this Agreement to the contrary, nothing in this Agreement shall be construed to exculpate the Trust Parties from any liability resulting from any act or omission constituting gross negligence, fraud, or willful misconduct of such Trust Party. In the event of any claim or cause of action by a third party, including but not limited to a governmental entity, against the Remediation Trust, or the


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Trustee or a Trust Party with respect to the Remediation Trust, there shall be (i) an irrebuttable presumption that specific actions taken or not taken by the Remediation Trust, Trustee, or a Trust Party with the approval of the Court, expressed in any decision, order, decree, or dispute resolution related to the Action, do not constitute gross negligence, fraud, or willful misconduct, and (ii) a presumption that actions taken or not taken by the Remediation Trust, Trustee, or a Trust Party to implement the Consent Decree and this Agreement that meet the Standard of Care required by Paragraph 31(b) (Standard of Care) of the Consent Decree do not constitute gross negligence, fraud, or willful misconduct.

4.9.2 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 Party, the Remediation Trust shall indemnify, defend, and hold harmless (without the Trust Parties having to first pay from their personal funds) the Trust Parties from and against any and all claims, causes of action, liabilities, obligations, losses, costs, judgments, damages, or expenses (including attorneys’ fees) and any other assertion of liability arising out of or in relation to the discharge of the Trustee’s powers and duties, provided that such indemnification, and any related recovery, shall be satisfied first, by the responding insurance coverage maintained by one or more professionals retained hereunder, second, by the responding insurance coverage maintained by the Trustee, and, third, by funds already in the Trust Administrative Account. The Remediation Trust shall not indemnify Trust Parties for acts or omissions that the Court, by a final order, finds constituted gross negligence, fraud, or willful misconduct.

4.10 Removal, Resignation, and Replacement of the Trustee. 4.10.1 Removal. During the term of the Trustee’s initial appointment or during any subsequent appointment or reappointment, the Trustee may be removed by (1) the entry of an order by the Court finding that the Trustee breached its fiduciary duty or committed gross negligence, fraud, or willful misconduct; (2) the entry of an order by the Court finding that (i) the Trustee in any material respect exacerbated hazardous conditions at the Site, (ii) is seriously or repeatedly deficient or late in performance of its duties or responsibilities under this Agreement, or (iii) has violated the provisions of this Agreement or the Consent Decree; (3) the Court approving an amendment to the Consent Decree by and among the Beneficiaries pursuant to which the Beneficiaries unanimously consent to removing the Trustee and proposing another Person as successor Trustee; or (4) the Court’s approval of a petition entered by a Beneficiary to have the Trustee removed and proposing another Person as successor Trustee.

4.10.2 Resignation. The Trustee may resign by giving not less than 90 days prior written notice thereof to the Court and the Beneficiaries.

4.10.3 Replacement. The Trustee may be replaced upon completion of any ten-year term.

4.10.4 Surviving Provisions. The provisions of this Section 4.10 and of Sections 4.6 (Reliance by Trust Parties), 4.8 (Liability of the Trust Parties), 4.9 (Exculpation), 4.11 (Appointment of Successor Trustees), 4.14 (Mutual Covenants Not to Sue), and 7.3 (Property


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Assignment and Preservation) shall survive the removal, replacement, and/or resignation of the Trustee. 4.11 Appointment of Successor Trustees. Any successor Trustee shall be proposed by the Beneficiaries and appointed by the Court. Any successor Trustee appointed hereunder shall execute an instrument accepting such appointment hereunder and shall file such acceptance with the Remediation Trust records. Thereupon, such successor Trustee shall, without any further act, become vested with all the estates, properties, rights, powers, trusts, and duties of its predecessor Trustee in the Remediation Trust with like effect as if originally named herein; provided, however, that a removed or resigning Trustee shall, nevertheless, when requested in writing by the successor Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Trustee under the Remediation Trust all the estates, properties, rights, powers, and trusts of such predecessor Trustee. 4.12 No Bond. Notwithstanding any state law to the contrary, the Trustee, including any successor Trustee, shall be exempt from giving any bond or other security. 4.13 Trustee Insurance. As required by Paragraph 45 (Insurance Policies) of the Consent Decree, at all times that a Person is acting as the Trustee of the Remediation Trust, the Trustee shall obtain and continue to hold appropriate insurance as agreed to by the Remediation Trust after consultation with the Beneficiaries regarding the type(s) and amount of insurance to be obtained. To the extent the Person then serving as Trustee provides services to the Remediation Trust outside of its capacity as Trustee, the Person shall be treated as a consultant, contractor, and third-party professional to the Remediation Trust to the extent of such services and shall be required to obtain and fund insurance with respect to such services in accordance with Section 4.1.3 (Third-Party Insurance) as if the services were performed by a third-party. Mallinckrodt, MPA, and NRDC shall receive insured protection on all such insurance policies obtained by the Trustee. 4.14 Mutual Covenants Not to Sue. Except as specifically provided herein and without limiting the Beneficiaries’ or the Trustee’s, if applicable, right to seek to enforce the terms of the Consent Decree and this Agreement and to seek dispute resolution as provided in the Consent Decree, upon the earlier of the Effective Date or the date on which the Remediation Trust receives funds pursuant to Section 2.1.2 (Transfer of Funding to the Remediation Trust), the Beneficiaries 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 claim 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 Beneficiary.

ARTICLE V BENEFICIARIES

5.1 Beneficiaries. Beneficial interests in the Remediation Trust shall be held by each of the Beneficiaries.


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5.2 Identification of Beneficiaries’ Representatives. 5.2.1 In order to determine the actual names and addresses of the authorized representatives of a Beneficiary, the Trust and the Trustee shall be entitled to rely conclusively on the name and contact information of the authorized representative for such Beneficiary listed in Section 7.8 (Sufficient Notice) of this Agreement, who may from time to time provide additional or replacement names and contact information of authorized representatives, or listed in any written notice provided to the Trustee in the future by an authorized representative of such Beneficiary. 5.2.2 The Trustee shall send copies of all reports, budgets, forecasts, and other documents that the Trustee is required to submit to a Beneficiary under the Consent Decree or this Agreement, and related implementation documents by electronic mail (unless otherwise requested) to the Person(s) listed in Section 7.8 (Sufficient Notice) to this Agreement as applicable. The Trustee shall send all reports that the Trustee is required to submit to the Court under the Consent Decree or this Agreement in accordance with applicable Court procedures. 5.3 Transfer of Beneficial Interests. The interests of the Beneficiaries of the Remediation Trust, which are reflected only on the records of the Remediation Trust maintained by the Remediation Trust, are not negotiable and may be transferred only after written notice to the Remediation Trust, by order of the Court, or by operation of law. The Remediation Trust shall not be required to record any transfer in favor of any transferee where, in the sole discretion of the Remediation Trust, such transfer is or might be construed to be ambiguous or to create uncertainty as to the holder of the interest in the Remediation Trust. Until a transfer is in fact recorded on the books and records maintained by the Remediation Trust for the purpose of identifying Beneficiaries, the Remediation Trust, whether or not in receipt of documents of transfer or other document relating to the transfer, may nevertheless send communications to Beneficiaries, as though it has no notice of any such transfer, and in so doing the Remediation Trust and Trustee shall be fully protected and incur no liability to any purported transferee or any other Person. The Trustee and Remediation Trust shall not unreasonably withhold transfer of beneficial interests to a successor of a Beneficiary recognized by the Court consistent with Paragraphs 3 and 66 (Succession and Assignment; Successors to NRDC or MPA) of the Consent Decree.

ARTICLE VI REPORTING AND TAXES

6.1 Reports. 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 ending after assets are first received by the Remediation Trust and ending as soon as practicable upon termination of the Remediation Trust, the Trustee shall submit to the Beneficiaries, and file with the Court, a written report as set forth in Paragraph 37 (Quarterly Reporting Requirements) of the Consent Decree; provided, however, that the Trustee may withhold confidential business information and protected personal information, if any, from such submittals and filings. The Remediation Trust shall promptly submit additional reports to the Beneficiaries whenever, as determined by outside counsel, accountants, or other professional advisors, an adverse material event or change occurs that affects the Remediation Trust. The Remediation Trust shall also


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provide the reports or information required by Section 3.2 (Payments by the Remediation Trust) of this Agreement. 6.2 Other. The Remediation Trust shall also file (or cause to be filed) any other statements, returns, or disclosures relating to the Remediation Trust that are required by any applicable governmental unit. 6.3 Taxes. 6.3.1 The Remediation Trust is intended to be a qualified settlement fund, for which no grantor trust election has been made, pursuant to the QSF Provisions and, to the extent provided by law, this Agreement shall be governed and construed in all respects consistent with such intent. The Remediation Trust and the Trustee shall not take any actions, or fail to take any actions, that would cause the Remediation Trust to fail to be treated as a “qualified settlement fund.” The Trustee shall use its best efforts, including but not limited to submitting an application to the IRS to obtain a Private Letter Ruling from the IRS, to clarify an uncertain application of federal Tax law to the Remediation Trust. If applicable, the Trustee and Mallinckrodt shall fully cooperate in filing a relation-back election under Treasury Regulation Section 1.468B-1(j)(2), to treat the Remediation Trust as coming into existence as a qualified settlement fund as of the earliest date possible. Any contingent right of Mallinckrodt to distribution of Contingent Funding from the Remediation Trust pursuant to Section 3.5 (Unclaimed Distributions) above is solely available upon approval by the Court and, in the event of such distribution, Mallinckrodt shall comply with the provisions of Treasury Regulation Section 1.468B-3(f) and include in income amounts so received to the extent required by the tax benefit rule, as provided in Section 111(a) of the Code. 6.3.2 For all federal income tax purposes, the Trustee and Mallinckrodt shall treat the transfer of the Trust Assets to the Remediation Trust as a transfer to a qualified settlement fund pursuant to section 468B of the Code and the QSF Provisions. The Trustee shall at all times seek to have the Remediation Trust treated as a “qualified settlement fund” as that term is defined in the QSF Provisions. The Court shall retain continuing jurisdiction over the Remediation Trust and Trust Accounts sufficient to satisfy the requirements of the QSF Provisions. The Trustee shall cause Taxes, if any, imposed on the earnings of the Remediation Trust to be paid out of such earnings and shall comply with all tax reporting and withholding requirements imposed on the Remediation Trust under applicable tax laws.

6.3.3 The Trustee shall be the “administrator,” within the meaning of Treasury Regulation Section 1.468B-2(k)(3), of the Remediation Trust. Subject to definitive guidance from the IRS or a judicial decision to the contrary, the Trustee shall be responsible for timely filing all required Tax Returns, ensuring compliance with the income tax withholding and reporting requirements, and paying applicable Taxes, if any, with respect to the Remediation Trust in a manner consistent with the QSF Provisions. All such Taxes shall be paid from the Trust Administrative Account. Mallinckrodt shall provide to the Trustee and the IRS the statement described in Treasury Regulation 1.468B-3(e)(2) no later than February 15th of the year following each calendar year in which Mallinckrodt makes a transfer to the Remediation Trust.


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ARTICLE VII MISCELLANEOUS PROVISIONS

7.1 Amendments and Waivers. Any provision of this Agreement may be amended or waived by mutual written consent of the Parties; provided, however, that, unless ordered by the Court, no change shall be made to this Agreement that would violate the Consent Decree, alter the provisions of Section 6.3 (Taxes) hereof or adversely affect the federal income tax status of the Remediation Trust as a “qualified settlement fund” (in accordance with Section 6.3 (Taxes) hereof), or, unless agreed to in writing by the Trustee, the rights or obligations of, or the liability protections or immunities accorded to, the Trustee. Technical amendments to this Agreement may be made as necessary to clarify this Agreement to enable the Trustee to effectuate the terms of this Agreement, or perform its intended duties in a manner consistent with the Consent Decree with the mutual consent of the Parties. 7.2 Ex Parte Communications. From the Effective Date until the termination of the Remediation Trust, no Trustee shall make or knowingly cause to be made to a Beneficiary, and no Beneficiary shall make or knowingly cause to be made to a Trustee, any material oral or written communication relevant to the Consent Decree or the Work that was not made contemporaneously to the other Beneficiaries. If such a communication is received by the Trustee or a Beneficiary, such receiving party shall cause such communication to be served on all other Beneficiaries as soon as reasonably practical. The prohibition in this Section 7.2 shall not apply to communications regarding non-substantive administrative issues. 7.3 Property Assignment and Preservation. The Remediation Trust is the sole and exclusive owner of all Property now or hereinafter held in the name of the Trustee, in its capacity as Trustee, and all underlying rights therein without any further obligations to Trustee. If any such Property, or any portion thereof, is deemed not to be owned by the Remediation Trust, the Trustee hereby irrevocably conveys, transfers, and assigns to the Remediation Trust all right, title, and interest in and to such Property, including the right to receive all past, present, and future proceeds and damages therefrom. The Trustee shall, at any time during and after the Trustee’s term under this Agreement, make such applications, sign such papers, take all rightful oaths, and perform all acts as may be requested from time to time by a successor Trustee or ordered by the Court (following dispute resolution provided for in this Agreement and the Consent Decree) with respect to the Property, at the Remediation Trust’s expense. The Trustee shall also execute assignments to the Remediation Trust (or its successor Trustee, not individually but in its capacity as successor Trustee) and give the Remediation Trust and its successor Trustee all reasonable assistance (including the giving of testimony) to obtain, protect, enforce, or defend the Property for the Remediation Trust’s benefit. A Person serving as Trustee shall cooperate and assist in the transition of the Remediation Trust administration to a successor Trustee, including after such Person is no longer the Trustee, as reasonably requested by the successor Trustee or the Beneficiaries. The Trustee appoints the Remediation Trust and any duly-appointed successor Trustee as the Trustee’s co-agents and grants each a power of attorney for the limited purpose of executing all such documents and to do all other lawful acts that the Remediation Trust, under the administration of a successor Trustee, is entitled to require the Trustee to do pursuant to this Section. The Trustee shall preserve all Property that in any way relates to the Site in accordance with the Statement of Work section V. Upon a Person’s termination as Trustee for any reason or by resignation, the


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Trustee shall promptly deliver to the Remediation Trust (or its successor Trustee) all Remediation Trust records, Trust Property in the Trustee’s possession or under Trustee’s control, and documents that in whole or in part contain material information regarding the Remediation Trust. The Trustee may keep copies of such Remediation Trust records as then agreed to by the successor Trustee or ordered by the Court following dispute resolution. The Trustee, or any successor Trustee, shall notify the Beneficiaries and provide the Beneficiaries an opportunity to object prior to utilizing or relying upon any Property to carry out the Trustee’s duties under this Agreement if such utilization or reliance could be inconsistent with the Property assignment in this Section. 7.4 Dispute Resolution. The Trustee and the Beneficiaries hereby acknowledge and agree that in the event of any dispute with respect to the Remediation Trust or the terms of this Agreement, the Trustee and Beneficiaries shall follow and be bound by the dispute resolution provisions set forth in Section XIV (Dispute Resolution) in the Consent Decree. 7.5 Cooperation. 7.5.1 Mallinckrodt represents that it has provided, or has provided access to, all information required by Paragraph 41 of the Consent Decree, and otherwise has complied, and will continue to comply, post-Effective Date, with the provisions of Section IX (Cooperation and Obligations of the Parties Regarding the Trustees) of the Consent Decree. 7.5.2 The Remediation Trust and Trustee shall take such actions and execute such documents as are reasonably requested by Mallinckrodt with respect to effectuating the Consent Decree and the transactions contemplated thereby, provided that such actions are not inconsistent with this Agreement or the Consent Decree. 7.5.3 To the fullest extent possible, the Trustee, Trust Parties, and the Beneficiaries agree and covenant to fully cooperate to efficiently and effectively carry out the intent of the Consent Decree and this Agreement and to take reasonable steps to protect the Remediation Trust, Trustee and Trust Parties from third-party liability arising from the Remediation Trust’s, Trustee’s, and Trust Parties’ responsibilities and obligations under the Consent Decree and this Agreement, including but not limited to liability under CERCLA, RCRA and the state counterparts to those statutes, but nothing in this paragraph requires the Beneficiaries to expend funds, to accept liability or responsibility, or to indemnify or hold harmless the Remediation Trust, Trustee, and Trust Parties except to the extent such is required elsewhere in the Consent Decree or this Agreement. 7.6 Situs of the Remediation Trust. The situs of the Remediation Trust herein established is Maine, and, except to the extent federal law is applicable, the rights, duties, and obligations arising under this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maine, including the Maine Act, without giving effect to the principles of conflict of law thereof. 7.7 Severability. If any provision of this Agreement or application thereof to any Person or circumstance shall be finally determined by the Court to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to Persons or circumstances


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other than those as to which it is held invalid or unenforceable, shall not be affected hereby, and such provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 7.8 Sufficient Notice. For any notice or other communication that is to be given or is allowed under this Agreement, such notice or other communication shall be written, shall be conveyed electronically by email, and shall be provided at the same time to the designated representatives of all of the Parties. The Parties shall give notice if their designated representatives change or have a change in contact information. As of the Effective Date, the designated representatives are:

For Plaintiffs:

Mitchell Bernard, NRDC, 40 West 20th Street, New York, NY 10011; (212) 727‐4469; [email protected]; and Jared Thompson, NRDC, 1152 15th Street NW, Suite 300, Washington, DC 20005; (202) 513-6249; [email protected].

For Mallinckrodt:

Patricia Hitt Duft, Mallinckrodt US LLC, 710 Medtronic Parkway, LC 300, Minneapolis, MN 55432; (314) 753-0413; [email protected]; Lisa Palin, Mallinckrodt US LLC, c/o Medtronic plc, 15 Hampshire Street, Mansfield, MA 02048; (508) 452-4272; [email protected]; and Jeffrey Talbert, Preti Flaherty, One City Center, Portland, ME 04112; (207) 791-3000; [email protected]. For Trustee:

Cynthia Brooks, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected]; Lauri Gorton, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes Street, Milwaukee, WI 53207; (414) 732-4514; [email protected]; Craig Kaufman, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE, Washington, DC 20003; (215) 837-3702; [email protected]; and Jennifer Roberts, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., PO Box 1189, Helena, MT 59624; (406) 457-2142; [email protected].


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7.9 Headings. The section and paragraph headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or any term or provision hereof. 7.10 Actions Taken on Other Than Business Day. If any payment or act under the Consent Decree or this Agreement is required to be made or performed on a date that is not a business day, then the making of such payment or the performance of such act may be completed on the next succeeding business day, but shall be deemed to have been completed as of the required date. For the purposes of this Agreement, a business day shall be any of the days Monday through Friday excluding recognized federal holidays. 7.11 Consistency of Agreements and Construction. To the extent reasonably possible, the provisions of this Agreement shall be interpreted in a manner consistent with the Consent Decree. Where the provisions of this Agreement are irreconcilable with the provisions of the Consent Decree, the provisions of the Consent Decree shall prevail, with the exception of Section IV (The Trustee), Section 1.1.16 (definition of “Parties”), Section 1.1.30 (definition of “Trust Administrative Costs”), and Section 7.5 (“Cooperation”), in which case this Agreement controls. 7.12 Compliance with Laws. Any and all distributions of Trust Assets shall be in compliance with applicable laws, including, but not limited to, applicable federal and state securities laws. 7.13 No Recourse to Plaintiffs. In no event shall the Plaintiffs have any responsibility for paying any expenses, fees, liabilities, or other obligations of the Remediation Trust, and in no event shall the Remediation Trust or the Trustee, or any of their agents, representatives, or professionals, have recourse to the Plaintiffs therefor. 7.14 Uniform Custodial Trust Act. The Agreement shall not be subject to any provision of the Uniform Custodial Trust Act as adopted by any state, now or in the future. 7.15 Authority to Enter into Agreement; Counterparts. The undersigned representatives for each Party represent and warrant that they are duly authorized to enter into the terms of this Agreement and to bind such Party legally to this Agreement, and that such Party has the right, power, and authority to enter into this Agreement, to become a Party to this Agreement, and to perform its obligations under this Agreement. This Agreement may be signed electronically in counterparts and such counterpart signature pages shall be given full force and effect. IN WITNESS WHEREOF, THE UNDERSIGNED PARTIES ENTER INTO THIS PENOBSCOT ESTUARY MERCURY REMEDIATION TRUST AGREEMENT.


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Signature Page for Penobscot Estuary Mercury Remediation Trust Agreement


__________ ___________________________________

Date Name: Title:


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__________ ___________________________________

Date Name: Jesse Graham Title: Co-Director


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__________ ___________________________________

Date Name: Mitchell S. Bernard Title: President and Chief Counsel


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FOR GREENFIELD PENOBSCOT ESTUARY REMEDIATION TRUST LLC, not individually but solely in its representative capacity as trustee of the Penobscot Estuary Mercury Remediation Trust:

By: Greenfield Environmental Trust Group, Inc., Member

__________ ___________________________________

Date By: Cynthia Brooks, President


APPENDIX C


No. 1:00-cv-00069-JAW (D. Me)

Form of Project Trust Agreement


PENOBSCOT ESTUARY BENEFICIAL ENVIRONMENTAL PROJECTS TRUST AGREEMENT

BY AND AMONG

MALLINCKRODT US LLC As Settlor and Beneficiary,

Greenfield Penobscot Estuary Project Trust LLC,

not individually but solely in its representative capacity as Trustee

AND

MAINE PEOPLE’S ALLIANCE, NATURAL RESOURCES DEFENSE COUNCIL, and PENOBSCOT ESTUARY MERCURY REMEDIATION TRUST

As Beneficiaries

As of ____________________, 2021


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Table of Contents RECITALS ......................................................................................................................................1 ARTICLE I: DEFINITIONS ...........................................................................................................2

1.1 Definitions.........................................................................................................................2 ARTICLE II: THE PROJECT TRUST............................................................................................5

2.1 Creation of and Transfer of Assets to the Project Trust ....................................................5 2.2 Objective and Purpose ......................................................................................................6 2.3 Holder of Trust Assets ......................................................................................................6 2.4 Management of Trust Assets ............................................................................................7 2.5 Investment and Safekeeping of Trust Assets ....................................................................7 2.6 Accounting ........................................................................................................................9 2.7 Project Trust Limitations ..................................................................................................9 2.8 Termination .....................................................................................................................10

ARTICLE III: WORK AND DISTRIBUTIONS ..........................................................................10 3.1 Trust Accounts ................................................................................................................10 3.2 Payments by the Project Trust ........................................................................................10 3.3 Advisory Committee .......................................................................................................11 3.4 Manner of Payment .........................................................................................................11 3.5 Unclaimed Distributions .................................................................................................11

ARTICLE IV: THE TRUSTEE .....................................................................................................12 4.1 Appointment ...................................................................................................................12 4.2 Generally .........................................................................................................................13 4.3 Powers .............................................................................................................................13 4.4 Other Professionals .........................................................................................................14 4.5 Limitation of the Trustee’s Authority .............................................................................14 4.6 Reliance by the Trust Parties ..........................................................................................15 4.7 Compensation of the Trustee ..........................................................................................16 4.8 Liability of the Trust Parties ...........................................................................................16 4.9 Exculpation .....................................................................................................................17 4.10 Removal, Resignation, and Replacement of the Trustee ................................................18 4.11 Appointment of Successor Trustees ................................................................................18 4.12 No Bond ..........................................................................................................................18 4.13 Trustee Insurance ............................................................................................................19 4.14 Mutual Covenants Not to Sue .........................................................................................19

ARTICLE V: BENEFICIARIES ...................................................................................................19 5.1 Beneficiaries ...................................................................................................................19 5.2 Identification of Beneficiaries .........................................................................................19 5.3 Transfer of Beneficial Interests .......................................................................................20

ARTICLE VI: REPORTING AND TAXES .................................................................................20 6.1 Reports ............................................................................................................................20


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6.2 Other ...............................................................................................................................20 6.3 Taxes ...............................................................................................................................20

ARTICLE VII: MISCELLANEOUS PROVISIONS ....................................................................21 7.1 Amendments and Waivers ..............................................................................................21 7.2 Ex Parte Communications ...............................................................................................21 7.3 Property Assignment and Preservation ...........................................................................21 7.4 Dispute Resolution ..........................................................................................................22 7.5 Cooperation .....................................................................................................................22 7.6 Situs of the Project Trust.................................................................................................22 7.7 Severability .....................................................................................................................22 7.8 Sufficient Notice .............................................................................................................23 7.9 Headings .........................................................................................................................24 7.10 Actions Taken on Other Than Business Day ..................................................................24 7.11 Consistency of Agreements and Construction ................................................................24 7.12 Compliance with Laws ...................................................................................................24 7.13 No Recourse to Plaintiffs ................................................................................................24 7.14 Uniform Custodial Trust Act ..........................................................................................24 7.15 Authority to Enter into Agreement; Counterparts ..........................................................25


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PENOBSCOT ESTUARY BENEFICIAL ENVIRONMENTAL PROJECTS TRUST

AGREEMENT

This Penobscot Estuary Beneficial Environmental Projects Trust Agreement (the “Agreement”) is made this ___ day of ________________, 2021 (the “Effective Date”) by and among Mallinckrodt US LLC (“Mallinckrodt”), Greenfield Penobscot Estuary Project Trust LLC, not individually but solely in its representative capacity as trustee (“Trustee”) of the Penobscot Estuary Beneficial Environmental Projects Trust established hereby (the “Project Trust”), Maine People’s Alliance (“MPA”), Natural Resources Defense Council (“NRDC”), and the Penobscot Estuary Mercury Remediation Trust (the “Remediation Trust”).

RECITALS WHEREAS, in 2000, Plaintiffs MPA and NRDC, on behalf of their affected members, filed a complaint pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), commencing the action designated Maine People’s Alliance, et al. v. HoltraChem Manufacturing, et al., Case No. 1:00-cv-00069-JAW (D. Me.) (the “Action”). Plaintiffs’ complaint alleged that Defendants 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; and WHEREAS, a proposed Consent Decree in the Action was lodged with the Court on March 19, 2021, (the “Consent Decree”) among Mallinckrodt, MPA, and NRDC; and WHEREAS, the Consent Decree provides for (1) the establishment of the Project Trust and the transfer of funds to the Project Trust to be administered by the Trustee pursuant to this Agreement and the Consent Decree and (2) concurrent therewith, the establishment of the Remediation Trust and the transfer of funds to the Remediation Trust to be administered pursuant to the Remediation Trust’s trust agreement and the Consent Decree; and WHEREAS, the Beneficiaries (defined below) and Trustee acknowledge and agree that the purpose of the Project Trust and the Remediation Trust is to fulfill Mallinckrodt’s environmental remediation and restoration obligations under the Consent Decree; and WHEREAS, in accordance with Section VII (Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot Estuary Beneficial Environmental Projects Trust) of the Consent Decree, Mallinckrodt hereby establishes the Project Trust as an environmental remediation trust that will hold the remediation funds provided for in the Consent Decree for the purpose managing and/or funding Beneficial Environmental Projects and resolving, satisfying, mitigating or addressing potential natural resource liability with respect to the Site imposed by federal, state, or local environmental law as set forth in the Consent Decree and this Agreement; and


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WHEREAS, the Project Trust is to be funded in the amounts and manner set forth in the Consent Decree and this Agreement in order to provide funds for the Work and the administrative costs of the Project Trust; and WHEREAS, this Agreement and the Consent Decree govern the Project Trust, which is created as an environmental remediation trust as described in U.S. Treasury Regulation Section 301.7701-4(e) with Mallinckrodt treated as its owner for federal tax purposes; and WHEREAS, Greenfield Penobscot Estuary Project Trust LLC has been selected to be the Trustee of the Project Trust and is willing to act as the Trustee in accordance with the requirements of the Consent Decree and this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and in the Consent Decree, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS 1.1 Definitions All capitalized terms shall have the meaning set forth in the Consent Decree unless otherwise defined in this Section or elsewhere in this Agreement: 1.1.1 “Agreement” has the meaning given in the preamble. 1.1.2 “Action” has the meaning given in the preamble. 1.1.3 “Beneficial Environmental Projects” has the meaning given in the Consent Decree. 1.1.4 “Beneficiary” or “Beneficiaries,” for purposes of the Project Trust, means Mallinckrodt, MPA, NRDC, and the Remediation Trust. 1.1.5 “Code” means the Internal Revenue Code of 1986, as amended. 1.1.6 “Consent Decree” has the meaning as given in the Recitals and includes all appendices attached thereto, including but not limited to the Statement of Work. 1.1.7 “Court” means the United States District Court for the District of Maine. 1.1.8 “Day” or “Days” means 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. 1.1.9 “Effective Date” has the meaning given in the preamble.


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1.1.10 “Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Project Trust) hereof. 1.1.11 “IRS” means the Internal Revenue Service. 1.1.12 “Initial Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Project Trust) hereof. 1.1.13 “Maine Act” means the Maine Uniform Trust Code, 18-B M.R.S.A. §§101 et. seq. 1.1.14 “Mallinckrodt” means 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. 1.1.15 “Natural Resource Damage Trustees” has the meaning given in the Consent Decree. 1.1.16 “MPA” means plaintiff Maine People’s Alliance and its successors and assigns. 1.1.17 “NRDC” means plaintiff Natural Resources Defense Council and its successors and assigns.

1.1.18 “Parties” means the Plaintiffs, Mallinckrodt, and the Trustee. 1.1.19 “Person” means any individual, corporation, limited liability company,

partnership, joint venture, association, joint-stock company, trust, charitable foundation, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.

1.1.20 “Plaintiffs” means MPA and NRDC. 1.1.21 “Project Trust” has the meaning given in the preamble. 1.1.22 “Property” means any and all real and personal property, tangible and

intangible property, intellectual property and any rights or interest therein, including but not limited to all reports, deliverables, documents, calculations, plans, designs, specifications, drawings, reports, maps, photographs, computer printouts, data, notes, and other documents or information of whatsoever nature or kind (in whatever form, format, or media) arising from the performance of the Work under the Consent Decree and this Agreement.

1.1.23 “Remediation Trust” has the meaning given in the preamble.


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1.1.24 “Restoration Projects” has the meaning given in the Consent Decree. 1.1.25 “Section” means a portion of this Agreement, the Consent Decree, or the

Statement of Work, in each case as indicated, identified by an Arabic numeral or numerals. A reference to any Section denoted by an Arabic numeral or numerals includes any subsections thereof.

1.1.26 “Site” has the meaning given in the Consent Decree. 1.1.27 “Statement of Work” or “SOW” means the document attached as Appendix

A to the Consent Decree and describing the activities that must be performed to implement the remediation activities at the Site required by the Consent Decree.

1.1.28 “Tax” or “Taxes” means all federal, state, and local taxes that may be

imposed on the Project Trust from time to time by any taxing authority. 1.1.29 “Tidal Marsh Projects” has the meaning given in the Consent Decree. 1.1.30 “Trust Account” has the meaning given in Section 2.1.4 (Creation of the

Trust Accounts) hereof. 1.1.31 “Trust Administrative Account” means the account as described in the

Consent Decree and established pursuant to Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to be used by the Trustee for administration of the Trust and to which Funding is specially allocated as described in Paragraph 15 (Trust Administrative Costs) of the Consent Decree.

1.1.32 “Trust Assets” means (a) the Funding to be transferred to the Project Trust

pursuant to the Consent Decree and (b) such other assets acquired, earned, or held by the Project Trust from time to time pursuant to this Agreement, the Consent Decree, or an order of the Court.

1.1.33 “Trust Administrative Costs” refer to all costs, obligations, or liabilities

associated with administration and management of the Project Trust, to be paid from the Trust Administrative Account, including taxes, investment and safekeeping costs, insurance, legal, accounting, bookkeeping, financial affairs, and other costs, fees, and expenses not directly related to the Work.

1.1.34 “Trust Parties” means, collectively, the Project Trust, the Trustee, and the

Trustee’s member’s shareholders, officers, directors, employees, and managers of the Trustee; 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 Trustee to assist it in carrying out its responsibilities under this Agreement and the Consent Decree.

1.1.35 “Trust Remediation Account” means the account established pursuant to

Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of


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the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to satisfy the Trustee’s obligations for Work on specific Beneficial Environmental Projects at the Site.

1.1.36 “Trustee” means the Person appointed to be the trustee of the Project Trust

consistent with the Consent Decree and this Agreement. 1.1.37 “Work” means all activities and obligations which the Trust, Trustee, or

Mallinckrodt is required to perform under the Consent Decree.

ARTICLE II THE PROJECT TRUST

2.1 Creation of and Transfer of Assets to the Project Trust. 2.1.1 Pursuant to the Consent Decree, Mallinckrodt hereby establishes the Project Trust under the Maine Act for the benefit of the Beneficiaries, and Mallinckrodt hereby transfers, assigns, and delivers to the Project Trust, or to the Trustee, not individually but solely in its representative capacity as Trustee of the Project Trust, if the law of Maine prohibits a trust entity from holding such title, for the benefit of the Beneficiaries, the Initial Funding as Trust Assets. The Trustee hereby accepts and agrees to hold the Trust Assets in the Project Trust for the benefit of Beneficiaries for the purposes described in Section 2.2 (Objective and Purpose) below, subject to the terms of the Consent Decree, this Agreement, and any applicable orders of the Court.

2.1.2 Transfer of Funding to the Project Trust. Within twenty (20) days after the Effective Date, Mallinckrodt shall cause to be transferred to the Project Trust cash in the amount of $500,000 (the “Initial Funding”). Thereafter, in accordance with Paragraphs 19 and 35 (Initial Funding of the Trusts; Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, Mallinckrodt shall transfer additional funds to the Project Trust based on the invoices and five-year budget forecasts prepared by the Trustee at such times and in such amounts as determined in accordance with Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, subject to the overall Capped Funding for the Project Trust set forth in Paragraphs 13 and 15 (Beneficial Environmental Projects; Trust Administrative Costs) of the Consent Decree. The Trustee may seek Funding from one or more Financial Assurances at such times, in such amounts, and subject to the requirements set forth in Paragraph 20(e) (Financial Assurance: Drawdown) of the Consent Decree. The Initial Funding and subsequent payments provided for in this Section together constitute the “Funding.”

2.1.3 Trust Invoices. The Trustee shall deliver invoices, with the necessary

documentation, to Mallinckrodt for Funding as required and subject to the limits set forth in this Agreement and Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree.

2.1.4 Creation of the Trust Accounts. Upon receipt of the Initial Funding, the

Trustee shall create two segregated trust accounts within the Project Trust: the Trust Remediation Account and the Trust Administrative Account. The purpose of the Trust Remediation Account shall be to hold and invest funds and proceeds to fund Beneficial Environmental Projects as


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selected, approved, and authorized pursuant to the terms of the Consent Decree and this Agreement. In its discretion, the Trustee may create subaccounts within the Trust Remediation Account, dedicated for specific projects or uses as may be deemed necessary in the sole discretion of the Trustee to comply with the terms of and implement the Consent Decree and this Agreement pursuant to Paragraph 24 (Creation of Trust Accounts) in the Consent Decree. The Trust Administrative Account shall be used by the Trustee for Trust Administrative Costs. Funding from the Trust Remediation Account, or its subaccounts, may not be used for any purpose of the Trust Administrative Account, and funding from the Trust Administrative Account, or any subaccounts, may not be used for any purpose of the Trust Remediation Account, except as otherwise provided in this Agreement or in the Consent Decree. The Initial Funding of each of the Trust Accounts shall be as set forth in the Consent Decree. The separate accounts are referred to in this Agreement individually as a “Trust Account” and collectively as the “Trust Accounts.” Subject to Section 2.5 (Investment and Safekeeping of Trust Assets), the income, gains, and losses from any investment of the Trust Assets of a Trust Account shall be allocated, paid, and credited to, and/or deducted from, such Trust Account. 2.2 Objective and Purpose. 2.2.1 The purposes and functions of the Project Trust are to hold the Trust Assets, carry out administrative functions related to the Trust Assets, and oversee, implement, and fund Work at the Site through Beneficial Environmental Projects. Beneficial Environmental Projects may include, but are not limited to, Restoration Projects and/or Tidal Marsh Projects, subject to the requirements of the Consent Decree. The Project Trust may contract with and retain such environmental, engineering, and technical consultants and contractors and other third-party professionals, as the Trustee may deem necessary, to advise and assist the Trustee in carrying out the activities necessary to achieve the purposes of the Consent Decree. The Project Trust shall be responsible for ensuring that all regulatory permits and other approvals are secured for Work on Beneficial Environmental Projects required by the Consent Decree. The performance by the Trustee of its duties under this Agreement shall not be considered to be the Trustee’s engaging in a trade or business. Upon a determination by the Trustee that the Site and Beneficiaries are not 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 are complete, the Trustee shall seek to terminate the Project Trust and distribute all remaining Trust Assets to the Remediation Trust, all as in accordance with and pursuant to the provisions of Section 2.8 (Termination) of this Agreement and Paragraph 33 (Termination of the Project Trust) in the Consent Decree. 2.2.2 The Project Trust is established pursuant to this Agreement and the Consent Decree and approved by the Court for the purpose of resolving Plaintiffs’ claims asserting environmental liabilities of Mallinckrodt and in order to resolve, satisfy, mitigate, address, or prevent the potential liability of a Trust or Beneficiary imposed by federal, state, or local environmental laws. As provided in the Consent Decree, the Court will retain continuing jurisdiction over the Project Trust and the underlying legal action. 2.3 Holder of Trust Assets. The Project Trust shall be the exclusive holder of the Trust Assets and Trust Accounts described herein for purposes of 31 U.S.C. § 3713(b).


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2.4 Management of Trust Assets. 2.4.1 Consistent with this Agreement and the Consent Decree, the Trustee shall use the Trust Assets for Work set forth in Paragraph 13 (Beneficial Environmental Projects) of the Consent Decree in accordance with the provisions of this Agreement and Paragraphs 23 (Creation and Purpose of the Project Trust), 29 (Project Trust’s Restoration Project Duties), and 32 (Limit on Decisions Regarding Work by the Project Trust) and Appendix A (Statement of Work) of the Consent Decree as selected, approved, and authorized pursuant to the terms of the Consent Decree and the Statement of Work. Except as otherwise specifically provided herein, to the extent the Trustee creates separate Trust Accounts or subaccounts for specific projects, the Trustee shall solely fund Work for specific projects with the Trust Assets held in such Trust Account or subaccount. The Trustee shall use the Trust Administrative Account funds solely to pay Trust Administrative Costs. To the extent the Person then serving as Trustee provides services to the Project Trust outside of its capacity as Trustee, costs incurred by the Project Trust with respect to such services shall be paid from the Trust Account from which such costs would be paid if the services were performed by a third-party. 2.4.2 As set forth in Paragraph 34 (Decisions Regarding Annual Budges, Work Plans, and Cash Flow Projections) of the Consent Decree, by October 1 of each year, beginning with the first such date after the Effective Date, the Trustee shall prepare a draft annual budget, work plan, and cash flow projections by quarter for the next calendar year for the Project Trust and each Trust Account. Decisions regarding annual budget, work plan, and cash flow projections will be made in accordance with Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) of the Consent Decree. 2.4.3 Except as otherwise set forth in this Section 2.4.3 and Section 2.5 (Investment and Safekeeping of Trust Assets), the Trust Assets held in a Trust Account or subaccount shall not be commingled with, distributed to, or used to fund Work or Trust Administrative Costs under another Trust Account or subaccount. At such time that it is determined by the Trustee, in accordance with Paragraphs 31 and 32 (Decisions Regarding Work and Deliverables; Limit on Decisions Regarding Work by the Project Trust) of the Consent Decree, and after consultation with the Beneficiaries, that Work to be performed through a particular project’s subaccount in the Trust Remediation Account is complete (in accordance with the Statement of Work), or after a sufficient amount of Trust Assets has been set aside for the completion of such Work, the remaining Trust Assets in such subaccount may, in the Trustee’s discretion, be transferred to another Trust subaccount, after which such funds shall be deemed a part of the Trust Assets of such transferee subaccount and shall be used for its designated purposes. 2.5 Investment and Safekeeping of Trust Assets. 2.5.1 The Trust Assets shall be held in trust, segregating Trust Administrative Account and Trust Remediation Account funds. All interest investment income, and other amounts earned (“Investment Income”) 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 this Agreement and the Consent Decree, provided, however, that the Trustee shall first deduct from any Investment


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Income realized an amount equal to the estimated Taxes owed on such Investment Income and costs associated with investment of the Trust Assets to which such Investment Income relates, all as reasonably determined by the Trustee based on applicable income tax withholding and reporting requirements, and deposit that sum into the Trust Administrative Account. The Trustee shall have no liability for interest or producing income on any moneys received by the Project Trust hereunder and held for distribution or payment as provided in this Agreement, except as such interest or amounts shall actually be received by the Project Trust. The Trustee shall have the right to administer, or engage an investment manager to administer, investments of any Trust Assets with the purpose of deriving a reasonable income from the Trust Assets pending periodic distributions in accordance with Article III hereof, taking into account the need for the safety and liquidity of principal required by the purposes of the Project Trust, and not of speculating or carrying on of any business for profit or derivation of gains therefrom. However, the right and power of the Project Trust to invest and reinvest the Trust Assets or any income earned by the Project Trust shall be limited to the right and power to invest and reinvest any part of all of such Trust Assets (pending periodic distributions in accordance with Article III hereof) in the following investment vehicles, provided that at least 50% (and, at the Trustee’s discretion, up to 100%) of the Trust Assets in each Trust Account shall, at any given time, be invested in categories (1), (2), and/or (3):

(1) Marketable obligations issued, guaranteed, or secured by the United States of America or an agency thereof (including, without limitation, government-sponsored enterprises such as Federal National Mortgage Association [Fannie Mae] and Federal Home Loan Mortgage Corporation [Freddie Mac]);

(2) Certificates of deposit with a domestic office of any national or state

bank or trust company organized under the laws of the United States of America or any state therein and having capital, surplus, and undivided profits of at least $750,000,000 or in such institutions not meeting this specified capital requirement to the extent that such deposits are federally insured;

(3) Deposit accounts and/or money market funds;

(4) No-load mutual funds or exchange traded funds;

(5) A diversified portfolio of equities traded on a recognized national

exchange that meet the standards for publicly listed companies;

(6) A diversified portfolio of bonds. The overall average rating of the portfolio shall have a rating of Double A or better, with no individual bond rated below A, exclusive of any bond insurance; and

(7) Any other investment vehicle approved in writing by the Beneficiaries.

The Trustee shall consult initially and from time to time with the Beneficiaries

regarding the nature and allocation of investments in the Trust Accounts. The Beneficiaries


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expressly agree that the Trustee shall have satisfied applicable standards and requirements and any duty to diversify by investing the Trust Assets in categories (1), (2), (3), and/or (6) above.

2.5.2 Except as set forth in Section 2.4.3 and this Section 2.5, the Trustee is

expressly prohibited from commingling Trust Accounts, provided that funds in separate Trust Accounts may be commonly managed, may be invested in common instruments, and may be aggregated with other funds for investment purposes so long as they remain accounted for separately. 2.5.3 Nothing in this Section 2.5 shall be construed as authorizing the Trustee to cause the Project Trust to carry on any business or to divide the gains therefrom, including without limitation, the business of an investment company or a company “controlled” by an “investment company,” required to register as such under the Investment Company Act of 1940, as amended. The sole purpose of this Section 2.5 is to authorize the investment of the Trust Assets in the Trust Accounts or any portions thereof as may be reasonably prudent pending use of the proceeds for the purposes of the Project Trust. 2.5.4 All costs and risk related to the investment of the Trust Assets in accordance with the guidelines set forth in this Section 2.5 shall be borne solely by the Project Trust. Mallinckrodt shall have no responsibility for, interest in, or liability whatsoever with respect to investment decisions or the actions of the Trustee, or any transactions executed by the Trustee, which shall in no event increase Mallinckrodt’s financial obligations as set forth in Paragraphs 13 (Beneficial Environmental Projects) and 18 (Capped Funding) of the Consent Decree. 2.6 Accounting. The Trustee shall maintain proper books, records, and accounts relating to all transactions pertaining to the Project Trust, and the assets and liabilities of, and claims against or assumed by, the Project Trust in such detail and for such period of time as may be necessary to enable the Trustee to make a full and proper accounting thereof and to comply with applicable provisions of law and good accounting practices and the obligations set forth in Paragraphs 32 (Limit on Decisions Regarding Work by the Project Trust), 33 (Termination of the Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Except as otherwise provided herein or by the Consent Decree, the Trustee shall not be required to file any accounting or seek approval of the Court with respect to the administration of the Project Trust, or as a condition for making any payment or distribution out of the Trust Assets. Beneficiaries shall have the right upon 14 days’ prior written notice delivered to the Trustee to inspect such books and records. 2.7 Project Trust Limitations. The Project Trust is established as an environmental remediation trust as described in Treasury Regulation Section 301.7701-4(e) with Mallinckrodt treated as the owner of the Trust Assets for federal tax purposes. No other Party or Beneficiary, nor any of their respective components, agencies, officers, directors, agents, employees, affiliates, successors, or assigns, shall be deemed to be an owner, operator, trustee, partner, agent, shareholder, officer, or director of the Project Trust.


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2.8 Termination. 2.8.1 The Trustee shall not unduly prolong the duration of the Project Trust and shall at all times endeavor to perform the Work and accordingly effect the distribution of Trust Assets in accordance with the terms hereof, and to terminate the Project Trust as soon as practicable consistent with this Agreement and the Consent Decree.

2.8.2 The Trustee shall take actions necessary to terminate the Project Trust, in accordance with the terms of and procedures in Paragraph 33 (Termination of the Project Trust) of the Consent Decree, in any year that it is determined that the Site and 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 under the Project Trust are complete. If the Consent Decree is not entered by the Court, the Project Trust will terminate and all remaining funds will be returned to Mallinckrodt US LLC.

ARTICLE III WORK AND DISTRIBUTIONS

3.1 Trust Accounts. The Trustee shall establish, maintain, and hold Trust Accounts consistent with the Consent Decree and Section 2.1 (Creation of and Transfer of Assets to the Project Trust) of this Agreement to administer the Trust Assets and distributions therefrom. 3.2 Payments by the Project Trust. 3.2.1 On or before October 1 of each calendar year, the Trustee shall provide the Beneficiaries, to the extent required in the Consent Decree, with balance statements, proposed budgets, work plans, and forecasts as described in Section 2.4.2 of this Agreement and Paragraphs 19 (Initial Funding of the Trusts), 32 (Limit on Decisions Regarding Work by the Project Trust), 33 (Termination of Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt), of the Consent Decree. Except as set forth in Section 3.2.2 (Emergency Funding) below, the Trustee shall not pay any expense that has not been provided for in a budget, revised budget, or revised line item of a budget that the Beneficiaries have not objected to pursuant to the terms of this Agreement and the Consent Decree. Nevertheless, the Trustee may incur or pay ongoing or recurring expenses included in the prior year’s budget that occur between the time a proposed annual budget is submitted and the time allowed for the Beneficiaries to object and initiate the dispute resolution process. 3.2.2 Emergency Funding. In the event of an emergency at the Site arising from the Work performed or funded by the Project Trust that, as may be deemed in the Trustee’s sole discretion, requires immediate remedial action to occur within a timeframe that does not permit sufficient time to amend the annual budget, the Trustee may utilize funding, of not more than $250,000, from the Trust Remediation Account to undertake and fund actions necessary to respond to the emergency. Nothing in this paragraph shall preclude the payment or reimbursement of such emergency funding through the annual budget or budget revision process; provided, however, that use of emergency funding under this paragraph shall in no event increase Mallinckrodt’s financial


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obligations as set forth in Paragraphs 13 and 18 (Beneficial Environmental Projects; Capped Funding) of the Consent Decree.

3.2.3 Expenses of the Project Trust. The expenses of the Project Trust relating to Work for Beneficial Environmental Projects shall be paid solely from the Trust Assets held in the Trust subaccount for such project. The Project Trust’s Trust Administrative Costs shall be paid solely from the Trust Assets held in the Trust Administrative Account. 3.2.4 Pre-Court Endorsement Date Funding. Mallinckrodt will transfer the Funding to the Project Trust to fund the Trustee’s Work and its other obligations pending approval of the Consent Decree by the Court. Where the Trustee and the Beneficiaries agree that the Trustee accrued fees and expenses after the Effective Date and prior to the Court’s endorsement of the Consent Decree in furtherance of activities that would constitute Work on Beneficial Environmental Projects under the Consent Decree, those fees and expenses shall be paid from the Trust Assets held in the Trust Remediation Account and Administrative Costs from the Trust Administrative Account. After the effective date of the Consent Decree (or earlier if requested by the Beneficiaries), the Trustee will submit detailed invoices reflecting its fees and expenses for comment and objection by the Beneficiaries. 3.3 Advisory Committee. The Trustee shall 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, (ii) seek to build consensus among the Beneficiaries, (iii) coordinate Work by the Project Trust and Remediation Trust, and (iv) provide informal consultation to the Trustee regarding management of the Project Trust and execution of the Work required by the Consent Decree. The Advisory Committee shall not have any formal approval or decision-making authority. The Advisory Committee shall meet at the request of the Trustee, on a schedule and by means that are mutually agreeable to the Beneficiaries and Trustee. Each Beneficiary shall designate one or more representatives to the Advisory Committee, each of whom may be an employee, attorney, or consultant for the Beneficiary. 3.4 Manner of Payment. Cash payments made by the Project Trust pursuant to the Consent Decree and this Agreement shall be in United States dollars by checks drawn on a domestic bank whose deposits are federally insured selected by the Trustee, or by wire transfer from such a domestic bank, at the option of the Trustee. When selecting or changing the domestic bank to be used for these purposes, the Trustee shall give the Beneficiaries notice and an opportunity to comment or object. 3.5 Unclaimed Distributions. In the event that any Trust Assets remain in the Project Trust at its termination, all such Trust Assets shall be transferred to the Remediation Trust within 30 days of termination of the Project Trust, as directed by the trustee of the Remediation Trust and in accordance with Paragraphs 13 (Beneficial Environmental Projects), 15 (Trust Administrative Costs), and 33 (Termination of Project Trust) of the Consent Decree. Remaining Trust Assets in the Trust Remediation Account shall be transferred to the Remediation Trust’s Trust Remediation Account to be used for Beneficial Environmental Projects, and remaining Trust Assets in the Trust


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Administrative Account shall be transferred to the Remediation Trust’s Trust Administrative Account.

ARTICLE IV THE TRUSTEE

4.1 Appointment. 4.1.1 Greenfield Penobscot Estuary Project Trust LLC is hereby appointed, subject to approval by the Court, to serve as the Trustee to administer the Project Trust and the Trust Accounts and perform the Work set forth in the Consent Decree and this Agreement, and the Trustee hereby accepts such appointment and agrees to serve in such representative capacity, effective upon the Effective Date. Subject to the provisions in Section 4.10 (Removal, Resignation, and Replacement of the Trustee) herein, the term of the Trustee shall be for ten (10) years at which time the Trustee may resign, be reappointed by the Beneficiaries, or be terminated. Any successor Trustee shall be jointly proposed by the Beneficiaries and appointed by the Court in accordance with Section 4.11 (Appointment of Successor Trustees) of this Agreement. 4.1.2 Consultants, Contractors, and Third-Party Professionals. The Project Trust is authorized to contract with any environmental, engineering, or technical consultants and contractors, and other third-party professionals to carry out the Work at the Site and otherwise fulfill the purposes of the Project Trust and its obligations under the Consent Decree. Such consultants, contractors, and third-party professionals shall be recommended by the Trustee and shall contract with the Project Trust, and the Beneficiaries shall have reasonable opportunity to comment on or object to these recommendations in accordance with Paragraphs 31 (Decisions Regarding Work and Deliverables), 32 (Limit on Decisions Regarding Work by the Project Trust), and 38 (Selection and Hiring of Contractors) of the Consent Decree, prior to finalizing any such contracts. The legal relationship of each consultant, contractor, or third-party professional to the Project Trust and Trustee is that of an independent contractor professional, not that of an entity employed by the Project Trust or the Trustee (and in no event shall be deemed a Trust Party). 4.1.3 Third-Party Insurance. Each consultant, contractor, and third-party professional engaged by the Project Trust in accordance with this Section to carry out the Work shall be required to obtain, at its own expense (except with respect to any project-specific insurance procured in accordance with this Section), as appropriate (based on, among other things, the contemplated scope of services to be provided by such professional), general, environmental, professional, and/or other liability insurance in the range of $1,000,000 to $25,000,000 as agreed to by the Project Trust after consultation with the Beneficiaries and an opportunity for the Beneficiaries to comment on or object to any proposed insurance coverage(s). Upon the recommendation of the Trustee, the Project Trust may reimburse or pay for project-specific insurance for a consultant, contractor, or third-party professional, subject to an opportunity for the Beneficiaries to comment on or object. To the fullest extent permitted by applicable law: (i) insurance policies obtained in accordance with this Section shall (A) be maintained for a period of two years following completion of the applicable Work, (B) name the Trust Parties, and the Beneficiaries of the Project Trust as additional insureds, (C) be issued by an insurer rated A-VII or higher in Best’s Insurance Manual or equivalent and that is qualified to do business in the


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jurisdiction where the Site is located, and (D) provide that the Project Trust be given prior written notice of the termination or expiration of such policy or any material changes in coverage or terms under the policy; (ii) all such policies shall be primary to any insurance maintained by the Project Trust and shall state the same with respect to liabilities that the Trust Parties and the Beneficiaries may incur that are attributable to the Site; and (iii) professionals insured in accordance with this Section shall waive, and require their insurers to waive, all rights of subrogation against the Project Trust, Trustee, Trust Parties, and the Beneficiaries. The insurance policies shall cover, among other things, negligence committed by the consultant, contractor, or third-party professional in carrying out the Work at the Site. In addition, unless waived by the Project Trust in its sole discretion, each subcontractor retained by a professional engaged by the Project Trust in accordance with this Section to carry out a portion of the Work shall obtain and maintain insurance of similar types in amounts that accord with the professional’s usual practice for such Work when performed by subcontractors, naming the Project Trust, Trustee, and the Beneficiaries of the Project Trust as additional insureds to the fullest extent permitted by applicable law. 4.2 Generally. The Trustee’s powers are exercisable solely in a fiduciary capacity and solely for the benefit of the Beneficiaries consistent with, and in furtherance of, the purposes of the Project Trust and the Consent Decree. The Trustee shall have the authority to bind the Project Trust and any successor Trustee, or successor or assign to the Project Trust, but shall for all purposes hereunder be acting in its representative capacity as Trustee and not individually. Notwithstanding anything to the contrary contained herein, the Trustee shall not be required to take action or omit to take action if, after the advice of counsel, the Trustee believes in good faith such action or omission is not consistent with the Trustee’s fiduciary duties. The Trustee shall not be deemed to have breached its fiduciary duties in connection with any act or omission that is consistent with written direction from the Court. The Trustee shall have no obligation to perform any activities for which the relevant Trust Account lacks sufficient funds. 4.3 Powers. In connection with the administration of the Project Trust, except as otherwise set forth in this Agreement or the Consent Decree, the Trustee is authorized to perform any and all acts necessary to accomplish the purposes of the Project Trust. Except as provided in the Consent Decree and Section 4.5 (Limitations on the Trustee’s Authority) below, the powers of the Trustee shall, without any further Court approval or order, include, without limitation, each of the following: (i) to receive, manage, invest, reinvest, supervise, vote, and protect the Trust Assets, withdraw, make distributions, and pay Taxes, if applicable or required, and other obligations owed by the Project Trust or the Trust Accounts from funds held by the Trustee, the Project Trust, and/or the Trust Accounts in accordance with the Consent Decree, and withhold and pay to the appropriate taxing authority any withholding taxes on distributions from the Project Trust, if applicable; (ii) to engage employees and professional Persons to assist the Project Trust and/or the Trustee with respect to the responsibilities described herein; (iii) to make distributions of the Trust Assets from the Trust Accounts for the purposes contemplated in this Agreement and the Consent Decree; (iv) to hold Property in the name of the Trustee in its capacity as such; (v) to establish and maintain a public-facing website and to engage in other Community Involvement activities in accordance with section IV (Community Involvement) of the Statement of Work appended to the Consent Decree; (vi) to purchase any insurance policies required, or as the Trustee may determine prudent, to protect the Project Trust, the Trust Assets, or the Trustee from any and all claims that might be asserted against each relating to the Project Trust; (vii) to file quarterly documents in Court on


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behalf of the Trustee and the Project Trust in accordance with the Consent Decree; (viii) to file all necessary state and federal filings and to provide information as required by law, this Agreement, or the Consent Decree; (ix) to determine the projects to be funded and implemented by the Project Trust as Beneficial Environmental Projects pursuant to Paragraph 13 (Beneficial Environmental Projects) of the Consent Decree, all as in accordance with the requirements set forth in the Consent Decree and subject to the limitations set forth in Sections 4.5.2 (Duties with Respect to Restoration Projects), 4.5.3 (Decisions to Fund or Implement Beneficial Environmental Projects), and 4.5.4 (Coordination with Remediation Trust) below; (x) to engage in all communications, take all actions, and execute all agreements, instruments, and other documents necessary to draw down a Financial Assurance to the extent authorized in Paragraph 20(e) (Financial Assurance: Drawdown) of the Consent Decree; and (xi) to effect all actions, including defending or resolving claims asserted against the Project Trust and/or Trustee, in its capacity as such and subject to Section 4.9 (Exculpation), and execute all agreements, instruments, and other documents necessary to implement this Agreement, including to exercise such other powers as may be vested in or assumed by the Project Trust and/or the Trustee pursuant to this Agreement and any order of the Court or as may be necessary and proper to carry out the provisions of this Agreement and the Consent Decree. No Person dealing with the Project Trust shall be obligated to inquire into the authority of the Trustee in connection with the protection, conservation, or disposition of Trust Assets; provided, however, that the foregoing does not limit Trustee’s obligations to provide information under Paragraph 4 of the Consent Decree. The Trustee is authorized to execute and deliver all documents on behalf of the Project Trust to accomplish the purposes of this Agreement and the Consent Decree. 4.4 Other Professionals. The Trustee is authorized to retain on behalf of the Project Trust and pay such other professionals as the Trustee (in accordance with a budget approved pursuant to Section 3.2 above) may deem necessary or appropriate to assist the Trustee in carrying out its power and duties under this Agreement and the Consent Decree, including, without limitation: (i) legal counsel to the Project Trust and/or the Trustee, in its capacity as such and subject to Section 4.9 (Exculpation); (ii) one or more public accounting firms to perform such bookkeeping functions, review and/or audits of the financial books and records of the Project Trust as may be appropriate in the Trustee’s reasonable discretion and to prepare and file any tax returns or informational returns for the Project Trust or the Trust Accounts as may be required; and (iii) investment advisors, custodians, security personnel, surveyors, contractors, clerks, and other third parties. The Trustee may pay all such Persons compensation for services rendered and expenses incurred in accordance with budgets approved as provided in Section 3.2 and from the appropriate Trust Account consistent with Sections 2.1.4 and 2.4.1 herein (Creation of the Trust Accounts; Management of Trust Assets). Fees due to an investment advisor that are expressed as a percentage of assets under management or return on investment need not be included in a budget, provided that the Beneficiaries are given notice of, and an opportunity to comment on and object to, the investment advisor and the stated percentage. 4.5 Limitation of the Trustee’s Authority.

4.5.1 General Limit. The Project Trust and the Trustee shall not 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


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the conservation or protection of the Trust Assets or the fulfillment of the purposes of the Project Trust.

4.5.2 Duties with Respect to Restoration Projects. In accordance with Paragraph

29 (Project Trust’s Restoration Project Duties) of the Consent Decree, the Trustee shall at all times carry out Work on any Restoration Project 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 provided that such Work is Feasible.

4.5.3 Decisions to Fund or Implement Beneficial Environmental Projects. The

Trustee acknowledges and agrees to follow the project selection process and criteria set forth in the Consent Decree in Paragraphs 13 and 32 (Beneficial Environmental Projects; Limit on Decisions Regarding Work by the Project Trust). To the extent no Restoration Projects are foreseeable, the Trustee shall consider beginning the process outlined in Paragraph 33 (Termination of the Project Trust) as required by the Consent Decree and this Agreement.

4.5.4 Coordination with Remediation Trust. The Trustee shall coordinate with the

trustee of the Remediation Trust with respect to Work, Invoice Amounts, and financial statements, all in accordance with Paragraphs 19 (Initial Funding of the Trusts), 20 (Financial Assurance), 25 (Trustees), 33 (Termination of the Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Upon beginning the Project Trust termination process as set forth in Section 2.8 (Termination) above and Paragraph 33 (Termination of the Project Trust) of the Consent Decree, the Trustee shall work in good faith with the trustee of the Remediation Trust to facilitate the transfer of the Trust’s Assets and liabilities to the Remediation Trust in accordance with Paragraphs 13 (Beneficial Environmental Projects) and 33 (Termination of the Project Trust) of the Consent Decree. The Trustee shall take such actions with respect to the Trust Assets, and liabilities, as reasonably requested by the trustee of the Remediation Trust, unless the Trustee reasonably determines that such actions would violate the Trustee’s fiduciary duties to the Project Trust or another obligation of the Trustee created in this Agreement or the Consent Decree, which determination shall be made and delivered to the proper Persons in accordance with Paragraphs 56 through 61 (Dispute Resolution) of the Consent Decree. 4.6 Reliance by the Trust Parties. Except as may otherwise be provided herein: (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 the Consent Decree; (ii) the Trust Parties may retain and reasonably rely upon legal counsel, financial or accounting advisors, technical consultants and contractors, and other professionals and experts as appropriate, within the approved budget allowances for such expenses, and shall not be personally liable for any action taken or not taken in accordance with the advice thereof unless the Court, by a final order, finds that they were grossly negligent or committed fraud or willful misconduct; and (iii) persons dealing with the Trust Parties shall look only to the applicable insurance policies maintained by one or more professionals retained hereunder in the first instance, then to the applicable insurance policies maintained by the Trustee,


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and, finally, in the event and to the extent insurance available under this Section is insufficient, to the funds in the Trust Administrative Account to satisfy any liability incurred by the Trust Parties to such person in carrying out the terms of this Agreement or any order of the Court, and the Trust Parties shall have no personal obligations to satisfy any such liability other than as provided in Section 4.9 (Exculpation). 4.7 Compensation of the Trustee. 4.7.1 The Project Trust shall pay its own reasonable and necessary costs and expenses and shall reimburse the Trustee for the actual reasonable out-of-pocket fees, costs, and expenses to the extent incurred by the Trustee in connection with the Trustee’s duties hereunder, including, without limitation, necessary travel, lodging, office rent (to be paid directly by the Project Trust), professional fees, postage, photocopying, telephone, and facsimile charges upon receipt of periodic billings, all in accordance with an annual budget or fee schedule approved by the Beneficiaries. Any Trust Parties who perform services for the Project Trust shall be entitled to receive reasonable compensation for services rendered on behalf of the Project Trust in accordance with an annual budget or fee schedule, subject to review and comment by the Beneficiaries and the dispute resolution terms of this Agreement and the Consent Decree. The Trustee’s fee rates for its services as the Trustee shall be provided to the Beneficiaries for comment and objection prior to the Effective Date and prior to the Trustee applying any adjusted fee schedule. 4.7.2 The Trust Assets shall be subject to the claims of the Trustee, and the Trustee shall be entitled to reimburse itself out of any available cash in the Trust Administrative Account, or for services performed in furtherance of the Work on a Beneficial Environmental Project, in accordance with the provisions of Section 2.4.1, out of available funds in the Trust Remediation Account, and the Project Trust shall be obligated to pay for actual out-of-pocket expenses and for actual hours worked. 4.7.3 All compensation and other amounts payable to the Trustee shall be paid from the Trust Assets. 4.8 Liability of the Trust Parties. 4.8.1 The Beneficiaries acknowledge that the Trust Parties did not create, cause, or contribute to the circumstances that give rise to the need to perform Work, including existing conditions or existing contamination at the Site. Therefore, nothing in the Consent Decree, Statement of Work, or this Agreement shall require 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. 4.8.2 In no event shall any Trust Parties be held liable to any third parties for any liability, action, or inaction of any other party, including Mallinckrodt or any other Trust Party. The liability of the Trust Parties shall be limited as provided in the Consent Decree and this Agreement, and the Trust Parties shall, further, be indemnified and exculpated in accordance with


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Section 4.9 of this Agreement. The Trustee shall not be deemed in breach of its duties or responsibilities on account of the insufficiency of funds in the Project Trust. 4.8.3 No provision of this Agreement or the Consent Decree shall require the Trustee to expend or risk its own personal funds or otherwise incur any personal financial liability in the performance of any of its duties or the exercise of any of its authorities as Trustee hereunder, except as provided in Section 4.13 (Trustee Insurance) and except on account of the Trustee’s gross negligence, fraud, or willful misconduct as provided in Section 4.9 (Exculpation). 4.8.4 To the fullest extent permitted by applicable law, except as required or authorized by the Consent Decree, the Trust Parties shall not be deemed an owner or operator of the Site or an owner, operator, generator, arranger, or transporter of hazardous waste at the Site under CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites Law, or similar laws on account of the Trust Parties’ performance of Work other than as provided in Section 4.9. The Trust Parties shall not be liable for any injury or damages to Persons or property resulting from acts or omissions of any Person in implementing the requirements of the Consent Decree or this Agreement other than as provided in Section 4.9. 4.9 Exculpation.

4.9.1 Except as otherwise provided in the Consent Decree or this Agreement, to the fullest extent permitted by applicable law, the Trust Parties are exculpated by all Persons of and from any and all claims, causes of action, and other assertions of liability arising out of the discharge of the powers and duties conferred upon the Project Trust and/or Trustee by the Consent Decree or this Agreement. No Person will be allowed to pursue any claims or causes of action against any Trust Party for any claim against Mallinckrodt, for making payments in accordance with the Consent Decree or this Agreement, or for implementing the provisions of the Consent Decree or this Agreement. Notwithstanding anything in this Section 4.9 or elsewhere in this Agreement to the contrary, nothing in this Agreement shall be construed to exculpate the Trust Parties from any liability resulting from any act or omission constituting gross negligence, fraud, or willful misconduct of such Trust Party. In the event of any claim or cause of action by a third party, including but not limited to a governmental entity, against the Project Trust, or the Trustee or a Trust Party with respect to the Project Trust, there shall be (i) an irrebuttable presumption that specific actions taken or not taken by the Project Trust, Trustee, or a Trust Party with the approval of the Court, expressed in any decision, order, decree, or dispute resolution related to the Action, do not constitute gross negligence, fraud, or willful misconduct, and (ii) a presumption that actions taken or not taken by the Project Trust, Trustee, or a Trust Party to implement the Consent Decree and this Agreement that meet the Standard of Care required by Paragraph 31(b) (Standard of Care) of the Consent Decree do not constitute gross negligence, fraud, or willful misconduct.

4.9.2 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 Party, the Project Trust shall indemnify, defend, and hold harmless (without the Trust Parties having to first pay from their personal funds) the Trust Parties from and against any and all claims, causes of action, liabilities, obligations, losses, costs, judgments, damages, or expenses (including attorneys’ fees) and any other assertion of liability arising out of or in relation to the discharge of the Trustee’s powers and duties, provided


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that such indemnification, and any related recovery, shall be satisfied first, by the responding insurance coverage maintained by one or more professionals retained hereunder, second, by the responding insurance coverage maintained by the Trustee, and, third, by funds already in the Trust Administrative Account. The Project Trust shall not indemnify Trust Parties for acts or omissions that the Court, by a final order, finds constituted gross negligence, fraud, or willful misconduct. 4.10 Removal, Resignation and Replacement of the Trustee. 4.10.1 Removal. During the term of the Trustee’s initial appointment or during any subsequent appointment or reappointment, the Trustee may be removed by (1) the entry of an order by the Court finding that the Trustee breached its fiduciary duty or committed gross negligence, fraud, or willful misconduct; (2) the entry of an order by the Court finding that (i) the Trustee in any material respect exacerbated hazardous conditions at the Site, (ii) is seriously or repeatedly deficient or late in performance of its duties or responsibilities under this Agreement, or (iii) has violated the provisions of this Agreement or the Consent Decree; (3) the Court approving an amendment to the Consent Decree by and among the Beneficiaries pursuant to which the Beneficiaries unanimously consent to removing the Trustee and proposing another Person as successor Trustee; or (4) the Court’s approval of a petition entered by a Beneficiary to have the Trustee removed and proposing another Person as successor Trustee.

4.10.2 Resignation. The Trustee may resign by giving not less than 90 days prior written notice thereof to the Court and the Beneficiaries.

4.10.3 Replacement. The Trustee may be replaced upon completion of any ten-year term.

4.10.4 Surviving Provisions. The provisions of this Section 4.10 and of Sections 4.6 (Reliance by the Trust Parties), 4.8 (Liability of the Trust Parties), 4.9 (Exculpation), 4.11 (Appointment of Successor Trustees), 4.14 (Mutual Covenants Not to Sue), and 7.3 (Property Assignment and Preservation) shall survive the removal, replacement, and/or resignation of the Trustee. 4.11 Appointment of Successor Trustees. Any successor Trustee shall be proposed by the Beneficiaries and appointed by the Court. Any successor Trustee appointed hereunder shall execute an instrument accepting such appointment hereunder and shall file such acceptance with the Project Trust records. Thereupon, such successor Trustee shall, without any further act, become vested with all the estates, properties, rights, powers, trusts, and duties of its predecessor in the Project Trust with like effect as if originally named herein; provided, however, that a removed or resigning Trustee shall, nevertheless, when requested in writing by the successor Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Trustee under the Project Trust all the estates, properties, rights, powers, and trusts of such predecessor Trustee. 4.12 No Bond. Notwithstanding any state law to the contrary, the Trustee, including any successor Trustee, shall be exempt from giving any bond or other security.


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4.13 Trustee Insurance. As required by Paragraph 45 (Insurance Policies) of the Consent Decree, at all times that a Person is acting as the Trustee of the Project Trust, the Trustee shall obtain and continue to hold appropriate insurance as agreed to by the Project Trust after consultation with the Beneficiaries regarding the type(s) and amount of insurance to be obtained. To the extent the Person then serving as Trustee provides services to the Project Trust outside of its capacity as Trustee, the Person shall be treated as a consultant, contractor, and third-party professional to the Project Trust to the extent of such services and shall be required to obtain and fund insurance with respect to such services in accordance with Section 4.1.3 (Third-Party Insurance) as if the services were performed by a third-party. Mallinckrodt, MPA, and NRDC shall receive insured protection on all such insurance policies obtained by the Trustee. 4.14 Mutual Covenants Not to Sue. Except as specifically provided herein and without limiting the Beneficiaries’ or the Trustee’s, if applicable, right to seek to enforce the terms of the Consent Decree and this Agreement and to seek dispute resolution as provided in the Consent Decree, upon the earlier of the Effective Date or the date on which the Project Trust receives funds pursuant to Section 2.1.2 (Transfer of Funding to the Project Trust), the Beneficiaries 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 claim 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 Beneficiary.

ARTICLE V BENEFICIARIES

5.1 Beneficiaries. Beneficial interests in the Project Trust shall be held by each of the Beneficiaries. 5.2 Identification of Beneficiaries. 5.2.1 In order to determine the actual names and addresses of the authorized representatives of a Beneficiary, the Project Trust and the Trustee shall be entitled to rely conclusively on the name and contact information of the authorized representative for such Beneficiary listed in Section 7.8 (Sufficient Notice) of this Agreement, who may from time to time provide additional or replacement names and contact information of authorized representatives, or listed in any written notice provided to the Trustee in the future by an authorized representative of such Beneficiary. 5.2.2 The Trustee shall send copies of all reports, budgets, forecasts, and other documents that the Trustee is required to submit to a Beneficiary under the Consent Decree or this Agreement, and related implementation documents by electronic mail (unless otherwise requested) to the Person(s) listed in Section 7.8 (Sufficient Notice) to this Agreement as applicable. The Trustee shall send all reports that the Trustee is required to submit to the Court under the Consent Decree or this Agreement in accordance with applicable Court procedures. 5.3 Transfer of Beneficial Interests. The interest of the Beneficiaries of the Project Trust, which are reflected only on the records of the Project Trust maintained by the Project Trust, are not


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negotiable and may be transferred only after written notice to the Project Trust, by order of the Court, or by operation of law. The Project Trust shall not be required to record any transfer in favor of any transferee where, in the sole discretion of the Project Trust, such transfer is or might be construed to be ambiguous or to create uncertainty as to the holder of the interest in the Project Trust. Until a transfer is in fact recorded on the books and records maintained by the Project Trust for the purpose of identifying Beneficiaries, the Project Trust, whether or not in receipt of documents of transfer or other document relating to the transfer, may nevertheless send communications to Beneficiaries, as though it has no notice of any such transfer, and in so doing the Project Trust and Trustee shall be fully protected and incur no liability to any purported transferee or any other Person. The Trustee and Project Trust shall not unreasonably withhold transfer of beneficial interests to a successor of a Beneficiary recognized by the Court consistent with Paragraphs 3 and 66 (Succession and Assignment; Successors to NRDC or MPA) of the Consent Decree.

ARTICLE VI REPORTING AND TAXES

6.1 Reports. 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 the Project Trust and ending as soon as practicable upon termination of the Project Trust, the Trustee shall submit to the Beneficiaries a written report as set forth in Paragraph 37 (Quarterly Reporting Requirements) of the Consent Decree; provided, however, that the Trustee may withhold confidential business information and protected personal information, if any, from such submittals and filings. The Project Trust shall promptly submit additional reports to the Beneficiaries whenever, as determined by outside counsel, accountants, or other professional advisors, an adverse material event or change occurs that affects the Project Trust. The Project Trust shall also provide the reports or information required by Section 3.2 (Payments by the Project Trust) of this Agreement. 6.2 Other. The Project Trust shall also file (or cause to be filed) any other statements, returns, or disclosures relating to the Project Trust that are required by any applicable governmental unit. 6.3 Taxes. The Project Trust is intended to be created and treated as an environmental remediation trust as described in Treasury Regulation Section 301.7701-4(e) and a “grantor trust” within the meaning of Sections 671 through 679 of the Code for all federal income tax purposes, with Mallinckrodt treated as the owner of the Project Trust and Trust Assets for federal tax purposes. The Trustee will file any returns or reports required by Treasury Regulation Section 1.671-4 and similar state and local laws, in order to enable Mallinckrodt to calculate its share of the Project Trust’s Tax obligations and attributes. The foregoing treatment shall also apply, to the extent permitted by law, for state and local tax purposes. All Taxes of any kind that may be assessed or levied against or in respect of the Project Trust shall be paid from the earnings and interest on Trust Assets, whether directly to the taxing authority or indirectly through Mallinckrodt.


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ARTICLE VII MISCELLANEOUS PROVISIONS

7.1 Amendments and Waivers. Any provision of this Agreement may be amended or waived by mutual written consent of the Parties; provided, however, that unless ordered by the Court no change shall be made to this Agreement that would violate the Consent Decree or, unless agreed to in writing by the Trustee, the rights or obligations of, or the liability protections or immunities accorded to, the Trustee. Technical amendments to this Agreement may be made as necessary to clarify this Agreement to enable the Trustee to effectuate the terms of this Agreement, or perform its intended duties in a manner consistent with the Consent Decree with the mutual consent of the Parties. 7.2 Ex Parte Communications. From the Effective Date until the termination of the Project Trust, no Trustee shall make or knowingly cause to be made to a Beneficiary, and no Beneficiary shall make or knowingly cause to be made to a Trustee, any material oral or written communication relevant to the Consent Decree or the Work that was not made contemporaneously to the other Beneficiaries. If such communication is received by the Trustee or a Beneficiary, such receiving party shall cause such communication to be served on all other Beneficiaries as soon as reasonably practical. The prohibition in this Section 7.2 shall not apply to communications regarding non-substantive administrative issues. 7.3 Property Assignment and Preservation. The Project Trust is the sole and exclusive owner of all Property now or hereinafter held in the name of the Trustee, in its capacity as Trustee, and all underlying rights therein without any further obligations to Trustee. If any such Property, or any portion thereof, is deemed not to be owned by the Project Trust, the Trustee hereby irrevocably conveys, transfers and assigns to the Project Trust all right, title and interest in and to such Property, including the right to receive all past, present and future proceeds and damages therefrom. Trustee shall, at any time during and after the Trustee’s term under this Agreement, make such applications, sign such papers, take all rightful oaths, and perform all acts as may be requested from time to time by the Court or a successor Trustee or ordered by the Court (following dispute resolution provided for in this Agreement and the Consent Decree) with respect to the Property, at the Project Trust’s expense. The Trustee shall also execute assignments to the Project Trust (or its successor Trustee, not individually but in its capacity as successor Trustee) and give the Project Trust and its successor Trustee all reasonable assistance (including the giving of testimony) to obtain, protect, enforce or defend the Property for the Project Trust’s benefit. A Person serving as Trustee shall cooperate and assist in the transition of the Project Trust administration to a successor Trustee, including after such Person is no longer the Trustee, as reasonably requested by the successor Trustee or the Beneficiaries. The Trustee appoints the Project Trust and any duly-appointed successor Trustee as the Trustee’s co-agents and grants each a power of attorney for the limited purpose of executing all such documents and to do all other lawful acts that the Project Trust, under the administration of a successor Trustee, is entitled to require Trustee to do pursuant to this Section 7.3. The Trustee shall preserve all Property that in any way relates to the Site in accordance with the Statement of Work section V. Upon a Person’s termination as Trustee for any reason or by resignation, the Trustee shall promptly deliver to the Project Trust (or its successor Trustee) all Project Trust records, Trust Property in the Trustee’s possession or under Trustee’s control, and documents that in whole or in part contain material


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information regarding the Project Trust. The Trustee may keep copies of such Project Trust records as then agreed to by the successor Trustee or ordered by the Court following dispute resolution. The Trustee, or any successor Trustee, shall notify the Beneficiaries and provide the Beneficiaries an opportunity to object prior to utilizing or relying upon any Property to carry out the Trustee’s duties under this Agreement if such utilization or reliance could be inconsistent with the Property assignment in this Section. 7.4 Dispute Resolution. Each of the Trustee and the Beneficiaries hereby acknowledge and agree that in the event of any dispute with respect to the Project Trust or the terms of this Agreement, the Trustee and Beneficiaries shall follow and be bound by the dispute resolution provisions set forth in Section XIV (Dispute Resolution) in the Consent Decree. 7.5 Cooperation. 7.5.1 Mallinckrodt represents that it has provided, or has provided access to, all information required by Paragraph 41 of the Consent Decree, and otherwise has complied, and will continue to comply, post-Effective Date, with the provisions of Section IX (Cooperation and Obligations of the Parties Regarding the Trustees) of the Consent Decree. 7.5.2 The Project Trust and Trustee shall take such actions and execute such documents as are reasonably requested by Mallinckrodt with respect to effectuating the Consent Decree and the transactions contemplated thereby, provided that such actions are not inconsistent with this Agreement or the Consent Decree.

7.5.3 To the fullest extent possible, the Trustee, the Trust Parties, and the Beneficiaries agree and covenant to fully cooperate to efficiently and effectively carry out the intent of the Consent Decree and this Agreement and to take reasonable steps to protect the Project Trust, Trustee and Trust Parties from third-party liability arising from the Project Trust’s, Trustee’s, and Trust Parties’ responsibilities and obligations under the Consent Decree and this Agreement, including but not limited to liability under CERCLA, RCRA and the state counterparts to those statutes, but nothing in this paragraph requires the Beneficiaries to expend funds, to accept liability or responsibility, or to indemnify or hold harmless the Project Trust, Trustee, and Trust Parties except to the extent such is required elsewhere in the Consent Decree or this Agreement. 7.6 Situs of the Project Trust. The situs of the Project Trust herein established is Maine, and, except to the extent federal law is applicable, the rights, duties, and obligations arising under this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maine, including the Maine Act, without giving effect to the principles of conflict of law thereof. 7.7 Severability. If any provision of this Agreement or application thereof to any Person or circumstance shall be finally determined by the Court to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected hereby, and such provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.


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7.8 Sufficient Notice. For any notice or other communication that is to be given or is allowed under this Agreement, such notice or other communication shall be written, shall be conveyed electronically by email, and shall be provided at the same time to the designated representatives of all of the Parties. The Parties shall give notice if their designated representatives change or have a change in contact information. As of the Effective Date, the designated representatives are:

For Plaintiffs:

Mitchell Bernard, NRDC, 40 West 20th Street, New York, NY 10011; (212) 727‐4469; [email protected]; and Jared Thompson, NRDC, 1152 15th Street NW, Suite 300, Washington, DC 20005; (202) 513-6249; [email protected].

For Mallinckrodt:

Patricia Hitt Duft, Mallinckrodt US LLC, 710 Medtronic Parkway, LC 300, Minneapolis, MN 55432; (314) 753-0413; [email protected]; Lisa Palin, Mallinckrodt US LLC, c/o Medtronic plc, 15 Hampshire Street, Mansfield, MA 02048; (508) 452-4272; [email protected]; and Jeffrey Talbert, Preti Flaherty, One City Center, Portland, ME 04112; (207) 791-3000; [email protected].

For Remediation Trust:

Cynthia Brooks, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected]; Lauri Gorton, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes Street, Milwaukee, WI 53207; (414) 732-4514; [email protected]; Craig Kaufman, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE Washington, DC 20003; (215) 837-3702; [email protected]; and Jennifer Roberts, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., PO Box 1189, Helena, MT 59624; (406) 457-2142; [email protected].


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For Trustee:

Cynthia Brooks, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected]; Lauri Gorton, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes Street, Milwaukee, WI 53207; (414) 732-4514; [email protected]; Craig Kaufman, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE Washington, DC 20003; (215) 837-3702; [email protected]; and Jennifer Roberts, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., PO Box 1189, Helena, MT 59624; (406) 457-2142; [email protected].

7.9 Headings. The section and paragraph headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or any term or provision hereof. 7.10 Actions Taken on Other Than Business Day. If any payment or act under the Consent Decree or this Agreement is required to be made or performed on a date that is not a business day, then the making of such payment or the performance of such act may be completed on the next succeeding business day, but shall be deemed to have been completed as of the required date. For the purposes of this Agreement, a business day shall be any of the days Monday through Friday excluding recognized federal holidays. 7.11 Consistency of Agreements and Construction. To the extent reasonably possible, the provisions of this Agreement shall be interpreted in a manner consistent with the Consent Decree. Where the provisions of this Agreement are irreconcilable with the provisions of the Consent Decree, the provisions of the Consent Decree shall prevail, with the exception of Article IV, Section 1.1.18 (definition of “Parties), Section 1.1.33 (definition of “Trust Administrative Costs”), and Section 7.5 (“Cooperation”), in which case this Agreement controls. 7.12 Compliance with Laws. Any and all distributions of Trust Assets shall be in compliance with applicable laws, including, but not limited to, applicable federal and state securities laws. 7.13 No Recourse to Plaintiffs. In no event shall the Plaintiffs have any responsibility for paying any expenses, fees, liabilities, or other obligations of the Project Trust, and in no event shall the Project Trust or the Trustee, or any of their agents, representatives, or professionals, have recourse to the Plaintiffs therefor. 7.14 Uniform Custodial Trust Act. The Agreement shall not be subject to any provision of the Uniform Custodial Trust Act as adopted by any state, now or in the future.


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7.15 Authority to Enter into Agreement; Counterparts. The undersigned representatives for each Party represent and warrant that they are duly authorized to enter into the terms of this Agreement and to bind such Party legally to this Agreement, and that such Party has the right, power, and authority to enter into this Agreement, to become a Party to this Agreement, and to perform its obligations under this Agreement. This Agreement may be signed electronically in counterparts and such counterpart signature pages shall be given full force and effect. IN WITNESS WHEREOF, THE UNDERSIGNED PARTIES ENTER INTO THIS PENOBSCOT ESTUARY BENEFICIAL ENVIRONMENTAL PROJECTS TRUST AGREEMENT.


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Signature Page for Penobscot Estuary Beneficial Environmental Projects Trust Agreement


__________ ___________________________________

Date Name: Title:


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__________ ___________________________________

Date Name: Jesse Graham Title: Co-Director


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__________ ___________________________________

Date Name: Mitchell S. Bernard Title: President and Chief Counsel


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FOR GREENFIELD PENOBSCOT ESTUARY REMEDIATION TRUST LLC, not individually but solely in its representative capacity as trustee of the Penobscot Estuary Mercury Remediation Trust:


__________ ___________________________________

Date Name: Cynthia Brooks Title: President


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FOR GREENFIELD PENOBSCOT ESTUARY PROJECT TRUST LLC, not individually but solely in its representative capacity as trustee of the Penobscot Estuary Beneficial Environmental Projects Trust:


__________ ___________________________________

Date Name: Cynthia Brooks Title: President


APPENDIX D


No. 1:00-cv-00069-JAW (D. Me)

Form of Surety Bond

Case 1:00-cv-00069-JAW Document 1114-5 Filed 03/19/21 Page 1 of 6 PageID #: 17706

1

Financial Assurance - Payment Bond

[Letterhead of Bond Issuer]

PAYMENT BOND Surety’s Payment Bond Number: [insert number] Date of Execution of Payment Bond: [insert date] Effective Date of Payment Bond: [insert date] Total Dollar Amount of Payment Bond: $[insert dollar amount] PRINCIPAL: Legal Name: Mallinckrodt US LLC Address: [insert address] Contact Person(s)/Information: [insert name and contact information (phone, email)] SURETY: Legal Name: [insert name of surety providing the bond] Address: [insert address] Contact Person(s)/Information: [insert name and contact information (phone, email)] BENEFICIARIES: Legal Name: Penobscot Estuary Mercury Remediation Trust

c/o [Trustee Recipient] Address/Contact Information: [insert address and contact information (phone, email)] Legal Name: Penobscot Estuary Beneficial Environmental Projects Trust

c/o [Trustee Recipient] Address/Contact Information: [insert address and contact information (phone, email)] SITE INFORMATION: Name and Location of Site: Penobscot River Estuary (the Site) Agreement Governing Site Work: Consent Decree, dated [insert date], in Case No. 1:00-cv-

00069-JAW (D. Me.), ECF No. __, between Mallinckrodt US LLC and Maine People’s Alliance and Natural Resources Defense Council

KNOW ALL PERSONS BY THESE PRESENTS, THAT: WHEREAS, said Principal is required, under the Consent Decree entered pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992, to fund the Penobscot Estuary Mercury Remediation Trust and the Penobscot Estuary Beneficial


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Environmental Projects Trust as defined in the Consent Decree, and to fulfill its other obligations as set forth in the Consent Decree; and WHEREAS, said Principal is required by the Consent Decree to provide financial assurance to ensure completion of its funding obligations. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. The Principal and Surety hereto are firmly bound to the Penobscot Estuary Mercury Remediation Trust and the Penobscot Estuary Beneficial Environmental Projects Trust (the Beneficiaries), in the above Total Dollar Amount of this Payment Bond, for the payment of which we, the Principal and Surety, bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, subject to and in accordance with the terms and conditions hereof. 2. The conditions of the Surety’s obligation hereunder are such that if the Principal shall promptly, faithfully, fully, and finally fulfill its obligations in accordance with the terms of the Consent Decree, the Surety’s obligation hereunder shall be null and void; otherwise it is to remain in full force and effect. 3. Pursuant to and in accordance with the terms of the Consent Decree, and except as specifically provided in Paragraph 5 below, the Surety shall become liable on the obligation evidenced hereby only upon the Principal’s failure to perform all or any portion(s) of its obligations, as defined in Paragraph 20(e) of the Consent Decree. At any time and from time to time upon notification by any Beneficiary that a drawdown has commenced, as specified in the Consent Decree, the Surety shall promptly (and in any event within 15 days after receiving such notification) pay to the Beneficiary funds up to the Total Dollar Amount of this Payment Bond in such amounts and to such person(s), account(s), or otherwise as the Beneficiary may direct. If the Surety does not render such payment within the specified 15-day period, the Surety shall be deemed to be in default of this Payment Bond and the Beneficiary shall be entitled to enforce any remedy available to it at law, in equity, or otherwise. 4. The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the Total Dollar Amount of this Payment Bond, but in no event shall the aggregate obligation of the Surety hereunder exceed the amount of said sum. 5. The Surety may cancel this Payment Bond only by sending notice of cancellation to the Principal and to the Beneficiaries, provided, however, that no such cancellation shall be effective during the 120-day period beginning on the date of receipt of the notice of cancellation by both the Principal and the Beneficiaries, as evidenced by return receipts. If after 90 days of such 120-day period, the Principal has failed to provide alternative financial assurance to the


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Beneficiaries in accordance with the terms of the Consent Decree, the Beneficiaries shall have the right to draw upon the Total Dollar Amount of this Payment Bond. 6. The Principal may terminate this Payment Bond only by sending written notice of termination to the Surety and to the Beneficiaries, provided, however, that no such termination shall become effective unless and until the Surety receives written authorization for termination of this Payment Bond by both of the Beneficiaries, or if one of the Trusts has been terminated, by the remaining Beneficiary. 7. Any modification, revision, or amendment that may be made to the terms of the Consent Decree, or any extension of the Consent Decree, or other forbearance on the part of either the Principal or the Beneficiaries to the other, shall not in any way release the Principal and the Surety, or either of them, or their heirs, executors, administrators, successors, or assigns from liability. The Surety expressly waives notice of any change, revision, or amendment to the Consent Decree or to any related obligations between the Principal and the Beneficiaries. 8. The Surety will immediately notify the Beneficiaries of any of the following events: (a) the filing by the Surety of a petition seeking to take advantage of any laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts; (b) the Surety’s consent to (or failure to contest in a timely manner) any petition filed against it in an involuntary case under such bankruptcy or other laws; (c) the Surety’s application for (or consent to or failure to contest in a timely manner) the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator, or the like of itself or of all or a substantial part of its assets; (d) the Surety’s making a general assignment for the benefit of creditors; or (e) the Surety’s taking any corporate action for the purpose of effecting any of the foregoing. 9. Any provision in this Payment Bond that conflicts with RCRA or any other applicable statutory or legal requirement shall be deemed deleted and provisions conforming to such statutory or legal requirement shall be deemed incorporated. 10. All notices, elections, consents, approvals, demands, and requests required or permitted shall be given in writing to (unless updated from time to time) the addressees shown on the first page of this Payment Bond, identify the Site, and provide a contact person (and contact information). All such correspondence shall be: (a) effective for all purposes if hand delivered or sent by (i) certified or registered United States mail, postage prepaid, return receipt requested or (ii) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, to the relevant address shown on the first page of this Payment Bond; and (b) effective and deemed received upon the earliest of (i) the actual receipt of the same by personal delivery or otherwise, (ii) one business day after being deposited with a nationally recognized overnight courier service as required above, or (iii) three business days after being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, election, consent, approval, demand, or request sent.


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11. The Surety hereby agrees that the obligations of the Surety under this Payment Bond shall be in no way impaired or affected by any winding up, insolvency, bankruptcy, or reorganization of the Principal or by any other arrangement or rearrangement of the Principal for the benefit of creditors. 12. No right of action shall accrue on this Payment Bond to or for the use of any person other than the Beneficiaries or the executors, administrators, successors or assigns of the Beneficiaries.


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IN WITNESS WHEREOF, the Principal and Surety have executed this Payment Bond and have affixed their seals on the date set forth above. The persons whose signatures appear below hereby represent, warrant, and certify that they are authorized to execute this Payment Bond on behalf of the Principal and Surety, respectively.

FOR THE PRINCIPAL:

Date: _____________ By [signature]: ________________________ Printed name: ________________________ Title: ________________________

State of [insert state] County of [insert county] On this [insert date], before me personally came [insert name of Mallinckrodt’s signatory] to me known, who, being by me duly sworn, did depose and say that she/he is [insert title] of Mallinckrodt US LLC, the entity described in and which executed the above instrument; and that she/he signed her/his name thereto. _______________________ [Signature of Notary Public]

FOR THE SURETY:

Date: _____________ By [signature]: ________________________ Printed name: ________________________

Title: ________________________ State of [insert state] County of [insert county] On this [insert date], before me personally came [insert name of Surety’s signatory] to me known, who, being by me duly sworn, did depose and say that she/he is [insert title] of [insert name of Surety], the entity described in and which executed the above instrument; and that she/he signed her/his name thereto. _______________________ [Signature of Notary Public]


APPENDIX E


No. 1:00-cv-00069-JAW (D. Me)

Study Reaches Map


Castine

Belfast

Prospect

Islesboro

Bucksport

Orrington

Eddington

Fort Point

Turner Point

Sears Island

South Orland

Southern Cove

Cape Jellison

Verona Island

City of Bangor

Former Veazie Dam

Winterport Boat Yard

Former HoltraChem Facility

Cape Jellison

Bangor

Upper Penobscot Bay

Verona West

Orrington

Frankfort Flats

Winterport

Fort Point Cove

Bucksport

Verona East

Mendall Marsh

Verona Northeast

Orland River

Bucksport Thalweg

Bucksport Harbor

Legend

Official Study Reach Boundary

0 3 61.5

Miles

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Project: 3616166052 Prepared: ICD 3/9/2018 Checked: BPW 3/9/2018

Maine

Service Layer Credits: Sources: Esri, HERE, DeLorme, increment P Corp., NPS, NRCan, Ordnance Survey,© OpenStreetMap contributors, USGS, NGA, NASA, CGIAR, N Robinson, NCEAS, NLS, OS, NMA,Geodatastyrelsen, Rijkswaterstaat, GSA, Geoland, FEMA, Intermap and the GIS user community

WinterportOfficial Study Reach Name

Bald HillCove

BelfastBay

TurtleHead

WilsonPoint

PerkinsPoint

SquawPoint

Phase III Engineering Study Report

River PhaseIII Engineering Study

Figure 1-1Study Reaches

Case 1:00-cv-00069-JAW Document 972-1 Filed 10/02/18 Page 2 of 8 PageID #: 15418Case 1:00-cv-00069-JAW Document 1114-6 Filed 03/19/21 Page 2 of 2 PageID #: 17713

APPENDIX F


No. 1:00-cv-00069-JAW (D. Me)

Surface Deposits Map


NAD83 State Plane Maine East, US Survey Feet

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Figure 8-3Recommended Remedial Alternative -

Surface Deposit Dredging

Legend

Reach Boundary

Marsh Platform

Layer Deposit

FF-1

OR-1

VE-1

VE-2

VE-3

0 10,000 20,0005,000

Feet

0 5 102.5

Kilometers

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Project: 3616166052 Prepared/Date: 3/29/2018 Checked/Date: 3/29/2018 Penobscot River Phase III Engineering Study Phase III Engineering Study Report

Case 1:00-cv-00069-JAW Document 972-2 Filed 10/02/18 Page 3 of 8 PageID #: 15427Case 1:00-cv-00069-JAW Document 1114-7 Filed 03/19/21 Page 2 of 2 PageID #: 17715

[PROPOSED] CONSENT DECREE - NRDC

Documents

Transcript of [PROPOSED] CONSENT DECREE - NRDC