NCD003200383_19890315_Koppers Co. Inc._SERB C_Prorposed NPL file 1988 - 1989-OCR

4WD-SFB
MAR 1 5 1989
CERTIFIED MAIL
REI'URN RECEIPT REQUESTED
Mr. William F. Giar.la
Beazer. Mater.ials and Se.r.vices, Inc.
436 Seventh Avenue
Pittsbur.gh, Pennsylvania 15219
Subject: Koppe.i:s Company Site
l'br.i:isville, Noi:th car.olina
Dear. Mi:. Giai:la:
•
Enclosed is an executed copy of the Administr.ative Or.der. on Consent
fo.i: the Kopper.s Company Site in ,-br.r.isville, Noi:th car.olina.
Sincer.ely,
m,M. •D ,ect,,,
Waste Management Division
Enclosur.e
cc: William Meyer
Nor.th car.olina Division of Health Ser.vices
V. • • UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:
KOPPERS COMPANY SITE
Morrisville, North Carolina
KOPPERS COMPANY, INC.
Respondent.
REGION IV
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U.S. EPA DOCKET NO. 89-12-C:
Proceeding under Sections
104 and 122 of the
Comprehensive Environmental
Response, Compensation and
Liability Act of 1980,
42 U.S.C. SS 9604 and
9622, as amended by the
Superfund Amendments and
Reauthorization Act of
1986, P.L. 99-499,
October 17, 1986.
_________________ )
ADMINISTRATIVE ORDER BY CONSENT
I. JURISDICTION
This Administrative Order by consent (hereafter called "Consent Order") is
entered into by the United States Environmental Protection Agency (hereafter
called "EPA") with the Respondent who has executed this Consent Order
pursuant to the authority vested in the President of the United States by
Sections 104 and 122(d)(3) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (hereafter called "CERCLA"), 42 u.s.c.
SS 9604 and 9622(d)(3), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (hereafter called "SARA"). This authority was
delegated by the President to the Administrator of EPA on January 23, 1987 by
Executive Order 12580, 52 Federal Register 2923 (Jan. 29, 1987) and has been
further delegated to the Regional Administrator of Region IV, EPA.
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The Respondent agrees to undertake all actions required of it by the terms
and conditions of this Consent Order for the conduct and implementation of a
Remedial Investigation and Feasibility Study at the Koppers Company Site and
any additional work agreed to pursuant to Section VI,L .. below.
Solely for the purposes of this consent order, the Respondent consents to and
agrees not to contest EPA jurisdiction to issue this Consent Order.
Respondent consents to jurisdiction for purposes of entry and enforcement of
this Consent Order by EPA.
II. STATEMENT OF PURPOSE
In entering into this Consent order, the mutual objectives of EPA and the
Respondent are: (l) to determine fully the nature and extent of the threat
to the public health or welfare or the environment caused by the release or
threatened release of hazardous substances, pollutants and/or contaminants
from the Site (Remedial Investigation), and (2) to determine and evaluate
alternatives for the appropriate extent of remedial action to prevent or
mitigate the migration or the release or threatened release of hazardous
substances, pollutants and/or contaminants from the Site (Feasibility
Study). The activities conducted pursuant to this Consent Order are subject
to approval by EPA and shall be consistent with the National Contingency Plan
(NCP), 40 C.F.R. Part 300.68(a) -(j).
III. EPA FINDINGS OF FACT
The following constitutes an outline of the facts upon which EPA has
determined this Consent Order is based:
A, The Site is located in Wake County, North Carolina. The Site coordinates
are latitude 35° 50' 49" and longitude 78° 50' 19".
B. The Site consists of approximately 52 acres on Highway 54 West
approximately l mile northwest of Morrisville, NC.
c. Portions of the Site were used for a· type of wood treatment processing
which is known as "CELLON." Pentachlorophenol (PCP) and isopropyl ether
(IPE) are used in this process.
D. On June 24, 1988, 53 Federal Register 122, the Site was proposed for
inclusion on the National Priorities List, (NPL), as defined in Section
105 of CERCLA, 42 U,S.C. S 9605.
E. In 1977, the CELLON effluent waste treatment lagoons were closed.
Residual liquid was sprayed over two (2) fields on site in connection
with the Koppers Company land farming project. Sludge was removed from
the lagoon area, mixed and spread back over the lagoon area and adjacent
soil to dry. Samples collected from private wells in the immediate
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vicinity by U.S. EPA and the·State of North Carolina revealed the
presence of pentachlorophenol (PCP) in some of the wells sampled. PCP is
listed as a hazardous substance.
F. The land use in the vicin~ty is primarily rural residential. Presently,
the groundwater is the sole source of drinking water for some of the
local residents. Because of the contamination which has been detected,
the Koppers Company has begun providing bottled water to some of the
residents. For most other residents in the vicinity of the Site, the
water for domestic use is provided solely by private wells.
IV. EPA CONCLUSIONS OF LAW
A. The Site is a facility within the meaning of Section 101(9) of CERCLA, 42
u.s.c. S 9601(9).
B. The Respondent is a person as defined in Section 101(21) of CERCLA, 42
u.s.c. S 9601(21).
c. The chemicals found at the Site as described in Section III above are
hazardous substances within the meaning of Section 101(14) of CERCLA, 42
u.s.c. S 9601(14).
o. The hazardous substances described above were disposed of at the facility
in such a manner that they have been released into the environment and
their potential migration pathways constitute a threatened release within
the meaning of Section 101(22) of CERCLA, 42 U.S.C. S 9601(22).
V. EPA DETERMINATIONS
Based on the Findings of Fact and conclusions of Law set out above, EPA has
determined that:
A~ The .actual and/or threatened release of hazardous substances from the
Site requires that an RI/FS be conducted at the Site.
B. The actions required by this Consent Order are necessary to protect the
public health and/or welfare and/or the environment.
c. In accordance with Section 104(a)(l) of CERCLA, 42 u.s.c. S 9604(a)(l),
as amended by SARA, EPA has determined that the Respondent will properly
and promptly conduct the RI/FS and is qualified to do so.
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VI. WORK TO BE PERFORMED
All work performed pursuant to this Consent Order shall be conducted under
the direction and supervision of a qualified professional engineer or a
certified geologist with expertise in hazardous waste site investigation.
Prior to the initiation of the Site work, the Respondent shall notify EPA in
writing regarding the identity of such engineer or geologist and of any
contractors and/or subcontractors to be used in carrying out the terms of
this Consent Order.
Based on the foregoing, it is hereby AGREED TO AND ORDERED that the following
work shall be performed:
A. Within forty-five (45) calendar days of the effective date of this
Consent order, the Respondent shall submit to EPA a plan for a complete
Remedial Investigation and Feasibility Study ("RI/FS Work Plan"). This
plan shall be developed in accordance with the EPA Remedial Investigation
and Feasibility Study guidance documents which have been provided to the
Respondent by EPA ("Guidance For Conducting Remedial Investigations and
Feasibility Studies under CERCLA", dated March 1988) and with Section 121
of the Superfund Amendments and Reauthorization Act of 1986. As
described in this guidance, the RI/FS Work Plan must include, at a
minimum, a sampling plan and a schedule for deliverables and for
completing the RI/FS.
B. Within forty-five (45) calendar days after receipt of the RI/FS Work Plan
by EPA, EPA shall notify the Resp~ndent in writing of EPA's approval or
disapproval of the RI/FS Work Plan or any part thereof. In the event of
any disapprovai, EPA shall specify in writing both the deficiencies and
any EPA recommended modification regarding the RI/FS Work Plan.
c. Within forty-five (45) calendar days of the receipt of EPA notification
of RI/FS Work Plan disapproval, the Respondent shall amend and submit to
EPA a revised RI/FS Work Plan. Differences of opinion between EPA and
Respondent concerning any EPA disapproval of the RI/FS Work Plan will be
resolved in accordance with the Dispute Resolution Procedure set forth in
Section XII below.
D. The Respondent shall implement the tasks detailed in the Remedial
Investigation and Feasibility Study Work Plan ("RI/FS Work Plan"). Upon
approval by EPA, the RI/FS Work Plan will be attached to and incorporated
in this Consent Order (Attachment 1). This work shall be conducted in
accordance with the EPA Remedial Investigation and Feasibility Study
guidance documents, and with the standards, specifications, and schedule
contained in the RI/FS Work Plan.
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E. Within seven (7) calendar days of EPA's approval of the RI/FS· Work Plan,
Respondent shall commence Task 1 of the RI/FS Work Plan.
F. A Project Operations Plan ("POP") shall be submitted within thirty (30)
calendar. days after EPA approval of the RI/FS Work Plan. The POP must
include: (1) a detailed sampling plan, (2) a health and safety plan, (3)
a plan for satisfaction of permitting requirements, (4) a description of
chain-of-custody procedures, and (5) a description of quality control and
quality assurance procedures. The POP, Work Plan and all other reports
and plans shall be subject to review, modification, ~nd approval by EPA.
The POP must be consistent with and incorporate all of the requirements
which are set forth in the EPA, Region IV Support Branch Standard
Operating Procedures and Quality Assurance Manual (SOP Manual) which is
dated April 1986. The POP must be consistent with the RI/FS Work Plan
and any.amendment to the SOP Manual. In the event of an amendment to the
SOP Manual before completion of the POP, Respondent will amend the POP as
necessary to conform with such an amendment within the time frame EPA
determines to be adequate. Within thirty (30) calendar days after
receipt of the POP by EPA, EPA shall notify the Respondent in writing of
EPA's approval or disapproval of the RI/FS POP or any part thereof.
Should EPA disapprove the POP, Respondent will have fifteen (15) calendar
days after receipt of notice of disapproval to submit a modified POP.
G. The Respondent shall provide monthly written progress reports no later
than the tenth (10th) day of each month. The first monthly progress
report shall be submitted on the tenth day of the first month following
the month in which EPA approves the RI/Fs Work Plan. At a minimum, these
progress reports shall: (1) describe the actions which have been taken
toward achieving compliance with this Consent Order, (2) provide notice
of Respondent's receipt of all analytical data resulting from work
performed, (3) include all results of sampling and tests and all other
data received by the Respondent in the performance of the RI/FS and
compliance with this Order, and (4) include all activities completed
subsequent to EPA approval of the RI/FS Work Plan during the past month,
as well as such actions, data, and plans and a schedule for all
activities to be conducted during the next month.
H. The Respondent shall provide preliminary and final reports to EPA
according to the schedule contained in the RI/FS Work Plan.
I. EPA shall review the preliminary and final reports and within forty-five
(45) calendar days after its receipt of such reports, EPA shall notify
the Respondent in writing of EPA's approval or disapproval of these
reports or any part thereof. In the event of any disapproval, EPA shall
specify in writing both the deficiencies and the reasons for such
disapproval. Should Respondent disagree with EPA's disapproval,
Respondent may invoke dispute resolution.
J. Within thirty (30) calendar days after receipt of EPA notification of
preliminary or final report disapproval, the Respondent shall amend and
submit to EPA the revised reports pursuant to EPA review, if additional
field or laboratory work is not required to satisfactorily complete the
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revision. Should EPA determine that additional field or laboratory work
within the scope of this Consent Order is required to complete the
revisions, then EPA and the Respondent shall agree on an appropriate
amount of time for preparation of the revised report. Should Respondent
disagree with EPA's determination regarding the need for additional work
or the Scope thereof, such disagreement shall be subject to the dispute
resolution procedures under Section XII herein. Should EPA disapprove a
revised report, the Agency, after the conclusion of any relevant dispute
resolution process, retains the right to amend such report, to perform
additional studies, to conduct a complete RI/FS or portions thereof
pursuant to its authority under CERCLA/SARA, to seek Cost Recovery
against Respondent and other potentially responsible parties and to
assess stipulated penalties pursuant to Section XIV of this Consent
Order.
K. Documents, including reports, approvals, and other correspondence, to be
submitted pursuant to this Consent Order, shall be sent by certified mail
to the following addresses or to such other addresses as the Respondent
or EPA hereafter may designate in writing:
1) Documents (5 copies) to be submitted to EPA should be sent to:
Ms. Barbara Benoy
NC/Sc Site Management Unit
Superfund Branch
Waste Management Division
U.S. Environmental Protection Agency
345 Courtland Street, N,E,
Atlanta, Georgia 30365
If a document is large enough to require binding, one copy should be
left unbound, secured with rubber bands or the like.
2) Documents (5.Copies) to be submitted to the Respondent should be sent
to:
Ms. Shannon Craig
Beazer Materials and Services, Inc.
436 Seventh Avenue 14th Floor
Pittsburgh, PA 15219
3) In addition, a copy of the draft Work Plan, draft POP, draft RI
Report, draft FS Report, and the finalized versions shall be
submitted to the NC Superfund Branch at the time of submittal of each
respective document to EPA. These documents shall be sent to:
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Ma. Lee Crosby
c/o Charlotte Varlashkin
North Carolina Department of Health Services
Superfund Branch
P.O. Box 2091
Raleigh, NC 27602
L. In addition to the EPA-approved tasks and deliverable to be completed
pursuant to this Consent Order, EPA may determine that additional tasks,
beyond the scope of this Consent Order, including remedial investigative
work and/or engineering evaluation, may be necessary as part of the
RI/FS. Further, EPA retains the right to request Respondent to perform
additional sampling if such is deemed necessary by EPA to adequately
investigate the Site. Should EPA determine that such additional tasks
are necessary, EPA shall notify Respondent in writing. Within thirty
(30) calendar days after receipt of EPA's notice, Respondent shall notify
EPA in writing as to whether or not Respondent will agree to conduct the
additional tasks. Upon written agreement of EPA and Respondent, this
Consent Order may be modified as necessary to address such further
investigation and study. Should Respondent not agree to perform these
additional tasks and to amend this Consent Order as may be necessary, EPA
retains the right to perform any additional work as authorized by CERCLA/
SARA, to conduct a complete RI/FS or portion thereof, and to seek cost
recovery from Respondent and any other potentially responsible parties.
Failure of the Respondent to agree to perform additional work under this
Section s~all not be a violation of this Consent Order and shall not
subject the Respondent to stipulated penalties. Any disagreement between
the Parties concerning additional work under this Section will not be
subject to the Dispute Resolution process (Section XII of this Consent
Order).
VII. DESIGNATED PROJECT COORDINATORS
On or before the effective date of this Consent Order, EPA and the Respondent
shall each designate' a Project Coordinator. Each Project coordinator shall
be responsible for overseeing the implementation of this Consent Order. To
the maximum extent possible, communications between the Respondent and EPA
and all documents, including reports, approvals, and their correspondence,
concerning the activities performed,pursuant to the terms and conditions of
this Consent Order, shall be directed through the Project Coordinators.
During the course of implementation of the work, the Project Coordinators
shall, whenever possible, operate by consensus. The Project Coordinators
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shall attempt to resolve disputes informally through good faith discussion of
the issues.
EPA and the Respondent each have the right to change their respective Project
Coordinator. such a change shall be accomplished by notifying the other
party in writing at least five (5) calendar days prior to the change.
The EPA-designated Project Coordinator shall have the authority provided by
the National Contingency Plan; 40 C.F.R. Part 300 et seq. This includes the
authority to halt, conduct, or direct any tasks required by this Consent
Order and/or any response actions or portions thereof when conditions present
an immediate risk to p~blic health and/or welfare and/or the environment.
Neither the absence of the EPA Project Coordinator from the Site nor the lack
of availability of an EPA representative by phone shall be cause for the
stoppage of work except where the approval or concurrence of such a
coordinator of EPA is necessary for a particular item of work to continue or
be completed or where the cessation of work is necessary to abat~ an
immediate risk of harm to public health, welfare or the environment.
Respondent shall notify EPA project coordinator or other designated EPA
representatives as soon as possible by phone, that work has been
discontinued. Further, within twenty-four (24) hours after work is
discontinued, Respondent shall submit to EPA a written explanation of why
work was discontinued. Should a disagreement arise between EPA and
Respondent concerning Respondent's decision to discontinue work, the dispute
shall be resolved in accordance with the provisions of the "Dispute
Resolution" Section (Section XII) of this Consent Order.
VIII. QUALITY ASSURANCE
The Respondent shall use quality assurance, quality control, and chain-of
custody procedures in accordance with the EPA, Region IV, Environmental
Services Division Standard Operating Procedures Manual throughout all sample
collection and analysis activities. This manual has been provided to the
Respondent by EPA. The Respondent shall consult with EPA in planning for,
and prior to, all sampling and analysis as detailed in the RI/FS Work Plan.
In order to provide quality assurance and maintain quality control regarding
all samples collected pursuant to this Consent Order, the Respondent shall:
A. Ensure that EPA personnel and/or EPA-authorized representatives are
allowed access to the laboratory{s)' and personnel utilized by the
Respondent for analyses;
B. Ensure that the laboratory(s) utilized by the Respondent for analyses
perform such analyses according to EPA methods or methods deemed
satisfactory to EPA and submit all protocols to be used for analyses
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to EPA at least twenty-four (24) calendar days prior to the commencement
of analyses;
c. Ensure that laboratory(s) utilized by the Respondent for analyses
participate in an EPA quality assurance/quality control program
equivalent to that which is followed by EPA and which is consistent with
EPA document QAMS-005/80. As part of such a program, and upon request by
EPA, such laboratory(s) shall perform such analyses of samples provided
by EPA to demonstrate the quality of each laboratory's analytical data
IX. SITE ACCESS
To the extent that areas covered by the RI/FS Work Plan are presently owned
by parties other than those bound by this Consent Order, the Respondent has
obtained or will use its best efforts to obtain Site access agreements from
the present owners within forty-five (45) calendar days of the effective date
of this Consent Order. Such agreements shall provide reasonable access by
EPA and/or its authorized representatives. In the event that Site access
agreements are not obtained within the time referenced above, the Respondent
shall notify EPA regarding both the lack of, and efforts to obtain, such
agreements within fifty-five (SS) calendar days of the effective date of this
Consent Order. In such event, EPA will use all appropriate authority
available to assist the Respondent in obtaining such access. Failure by
Respondent to obtain access agreements after use of its best efforts does not
constitute a violation of this Consent Order. Work at that area of the Site
for which access has not been obtained will be delayed until access is
obtained. Respondent agrees to reimburse EPA for all costs incurred by the
Agency in assisting Respondent's access. However, should access be delayed
by lack of effort of the Respondent or Respcndent's representatives,
stipulated penalties will be invoked.
X. SAMPLING, ACCESS, AND DATA/DOCUMENT AVAILABILITY
The Respondent shall make the results of all sampling and/or tests or other
data generated by the Respondent or on the Respondent's behalf, to comply
with this Consent Order, available to EPA and shall submit these results in
monthly progress repcrts as described in Section VI of this Consent Order.
EPA, in a timely manner, will make available to the Respondent the results of
sampling and/or tests or other data similarly generated by EPA.
At the request of EPA, the Respondent shall allow split or duplicate samples
to be taken by EPA and/or its authorized representatives, of any samples
collected by the Respondent pursuant to the implementation of this Consent
Order. The Respondent shall notify EPA not less than seventy-two (72) hours
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hours in advance of any sample collection activity. This notification may be
given verbally in the field by the Respondent to EPA's authorized
representative. The Project Coordinator may agree in writing to a shorter
notification period. Such an agreement will be given only to a specific
request, and once granted shall not be generally applicable.
EPA shall allow split or duplicate samples to be taken by the Respondent of
any samples collected by EPA or its contractors during the performance of
work associated with this Consent Order and, to the degree circumstances
allow, shall notify Respondent not less than seventy-two (72) hours in
advance of any samples collection activity.
EPA and/or its authorized representatives shall have the authority to enter
and freely move about all property at the Site at all times for the purposes
of, inter alia: inspecting records, operating logs and contracts related to
work being performed at the Site pursuant to this Consent Order; reviewing
the progress of the Respondent in carrying out the terms of this Consent
Order; conducting such tests as EPA or the Project Coordinator deem
necessary; and verifying the data submitted to EPA by the Respondent. The
Respondent shall permit such persons to inspect and copy all records, files,
photographs, sampling and monitoring data, documents, and other writings, in
any way pertaining to work undertaken pursuant to this Consent Order. All
parties with access to the Site pursuant to this paragraph shall comply with
all approved health and safety plans. EPA and Respondents will use their
beet efforts not to interfere with the business of Unit Structures.
The Respondent reserves the right to withhold from EPA inspection those
records which may be subject to the attorney work-product privilege, the
attorney-client privilege or any other privilege. Howe~er, no sampling data,
sampling data and analytical data reports, books and logs or any other
documents, reports, records and information, which Respondent is required to
generate pursuant to this Consent Order and the RI/FS Work Plan, may be
withheld from EPA on the basis that they are subject to the attorney
work-product privilege, the attorney-client privilege or any other privilege.
The Respcndent may assert a confidentiality claim, if appropriate, covering
part or all of the information provided under this Consent Order pursuant to
40 C.F.R. S 2.203(b). Such an assertion shall be adequately substantiated
when the assertion is made. Analytical data shall not be claimed as
confidential by the Respcndent. Information determined to be confidential by
EPA will be afforded the protection specified in 40 C.F.R. Part 2, Subpart
a. If no such claim accompanies the information when it is submitted or made
available to EPA, it may be made available to the public by EPA without
further notice to the Respondent.
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XI. RECORD PRESERVATION
Respondent shall preserve, during the pendency of this Consent Order and for
a minimum of six (6) years after its termination, all records and documents
in its possession or in the possession of its divisions, employees, agents,
accountants, contractors, or attorneys which relate in any way to the work
performed pursuant to this Consent Order at the Site, and to the
implementation of this Order, despite any document retention policy to the
contrary. After this six (6) year period, the Respondent shall notify EPA
within thirty (30) calendar days prior to the destruction of any such
documents. Upon request by EPA, the Respondent shall make available to EPA
such records or copies of such records, except those which may be withheld as
privileged in accordance with the provisions of Section X above.
Additionally, if EPA requests that some or all documents be preserved for a
longer period, the Respondent shall comply with such request. Any such
request which is made verbally shall be memorialized in a writing and made
available to the Respondent within sixty (60) days of the request.
XII. DISPUTE RESOLUTION
The Project Coordinators shall first attempt to resolve informally all
matters concerning the Work Plan activities and the interpretation of this
Order. If the Project Coordinators cannot resolve a difference of opinion
with respect to such matters within twenty four (24) hours or if Respondent
obj8cts to any ~PA notice of deficiency or any other decision made pursuant
to this Order, Respondent shall notify EPA in writing of its objection within
fourteen (14) days of receipt of the notice or·cecision. EPA and Respondent
then have an additional fourteen (14) days from the receipt by EPA of the
notification of objection to negotiate in good faith to reach agreement. If
agreement cannot be reached on any issue within this fourteen (14) day
period, EPA shall provide a written statement to the Respondent setting forth
EPA's factual basis for its decision. Respondent will then have five (5)
calendar days from its receipt of EPA's decision to provide the Agency with a
written agreement or refusal to comply with the Agency's decision. Should
Respondent decline, fail or refuse to implement any aspect of the RI/FS which
is required by EPA in its decision, including but not limited to resampling,
performing additional work pursuant. to Section VI.F, and submitting revised
reports, or if EPA disapproves any revised report, EPA may then (1) perform
additional studies, (2) amend reports required under this consent Order, (3)
complete the RI/FS required under this Consent Order, or.portions thereof,
and (4) seek cost recovery against Respondent and any other potentially
responsible party. Any determination made by EPA under this Section will not
be arbitrary or capricious or otherwise inconsistent with this Consent Order
or the N.C.P.
Payment of stipulated penalties with respect to any disputed issues shall be
stayed pending resolution of the dispute. In the event Respondent does not
prevail in the dispute, stipulated penalties shall be assessed and paid as
provided in Section XIV herein. Further, EPA's decision concerning the need
for additional tasks, sampling and/or resampling, as set forth in Section VI
(L) of this Consent Order, shall not be subject to this Dispute Resolution
process.
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XIII. DELAY IN PERFORMANCE/FORCE MAJEURE
Respondent's activities under this Consent Order shall be performed within
the time limits set· forth in the RI/FS Work Plan referenced in VI above,
unless performance is delayed by events which constitute a force majeure.
For purposes of this Consent Order, a force rnajeure is defined as any event
arising from causes beyond the reasonable control of Respondent which could
not have been prevented by the exercise of due diligence. Increased costs
incurred by-Respondent in conducting the RI/FS and/or fail~re to apply for
any permits and approvals and/or changed economic circumstances of Respondent
shall not be considered as constituting a force rnajeure.
The Respondent shall notify EPA's Project coordinator orally within
forty-eight (48) hours, and in writing no later than ten (10) business days,
from the inception of any event which Respondent contends constitutes a force
majeure as defined above. The written notice shall describe fully the nature
of the delay, why the delay is beyond the control of the Respondent, the
actions taken and/or that will be taken to mitigate, prevent and/or minimize
further delay, the anticipated length of the delay and the timetable by which
the actions to mitigate, prevent and/or minimize the delay will be taken.
The Respondent shall adopt all reasonable measures to avoid or minimize any
such delay.
Not withstanding the notice requirements set forth in the second paragraph of
this section, should the date of discovery differ from the date of the
inception of a force majeure event, Respondent shall orally notify.EPA's
Project Coordinator with forty-eight (48) hours of the discovery of the event
and, no later than ten (10) days after the discovery of the event, shall
memorialize such notice in a writing to EPA which includes the reasons for
the time variance.
Delay that results from circumstances beyond the control of the Respondent
that cannot be overcome by due diligence on the Respondent's part shall not
be deemed to be a violation of this Consent Order. Should EPA determine a
delay is caused by circumstances beyond the control of the Respondent, the
schedule affected by the delay shall be extended for a period equal to the
delay resulting from such circumstances unless EPA determines other
circumstances warrant more time.
Respondent shall have the burden of proving that any delay in the achievement
of the requirements of this Consent Order are caused by circumstances/events
beyond Respondent's reasonable control, which could not have been overcome by
due diligence. If EPA does not agree that circumstances were beyond the
reasonable control of the Respondent, the dispute shall be resolved in
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accordance with the provisions of the Dispute Resolution Section (Section
XII) of this Consent Order.
Failure of the Respondent to comply with the notice requirements of this
Section shall constitute a waiver of the Respondent's right to invoke the
benefits of this Section with respect to that event.
XIV. STIPULATED PENALTIES
Except with respect to any extensions agreed to by the parties in writing,
with EPA's consent to an extension to not be arbitrarily or capriciously
withheld, and except for delays from events which constitute a force majeure,
the Respondent shall be subject to the imposition of stipulated penalties as
set forth below:
Stipulated penalties shall accrue as follows:
A. For the failure to complete the major tasks, as set forth below, within
the schedules contained in this Consent Order and in the various plans
and reports required under this Order or incorporated by reference
herein, the Respondent shall be liable to EPA for stipulated penalties in
the following manner:
Period of Failure to Comply:
lat through 14th day
15th through 44th day
45th day and beyond
$1,000.00 per violation per day
$2,000.00 per violation per day
$3,000.00 pe, violation per day
Major tasks for purposes of this Consent Order are:
1) Submittal and, if necessary, modification of the Remedial
Investigation and Feasibility Study Work Plan;
2) Submittal and, if necessary, modification of the Project Operations
Plan;
3) Submittal and, if necessary, modification of the preliminary and/or
final Remedial Investigation Report;
4) Submittal and, if necessary, modification of the preliminary and/or
final Feasibility Study Reports;
5) submittal and, if necessary, modification of the Endangerment
Assessment (Risk Assessment) and data required to be submitted to
ATSDR for use in its Health Assessment;
6) Failure to 'reimburse oversite cost as prescribed in Section XVIII of
this Order.
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B. Should Respondent fail to submit a monthly progress report within five
(5) calendar days after its due date, Respondent shall be liable to EPA
for stipulated penalties in the amount of $400.00 per violation for each
day during which Respondent fails to submit and, if necessary, modify
monthly progress reports.
c. Should Respondent fail to mobilize or implement field activities
prescribed in the RI/FS Work Plan within ten (10) calendar days of any
date or time designated within the Work Plan, Respondent shall be liable
to EPA for stipulated penalties in the amount of $1,000.00 for each day
of non-compliance. In the even the Respondent is able to submit
deliverables within time constraints provided within the Work Plan,
despite incurred delays in mobilization or implementation, EPA, in its
discretion, will waive or reduce the stipulated penalties provided for in
this Paragraph C; in the event EPA reduces a stipulated penalty, the
penalty will not be greater than $250.00. In rendering a determination
on the issue of the waiver of penalties under this paragraph, EPA will
consider Respondent's good faith efforts to mobilize and/or implement
field activities within the required times.
All stipulated penalties begin to accrue on the day that a violation occurs
or on the day following Respondent's failure to comply with any schedule or
deadline, or the terms, conditions or requirements contained in this Consent
Order and/or Work Plan, and shall continue to accrue until Respondent's
violation ends or until Respondent complies with the particular schedule,
deadline, term, condition or requirement.
EPA, in its discretion, may choose to waive the payment of a penalty or
require.a payment which is less than a penalty set forth in this Section. In
making such a determination, the Agency may take into consideration the
magnitude of the violation, the duration of the violation and any mitigating
factors which the Respondent may present. The Respondent's claim that the
Dispute Resolution Process was invoked in good faith may be considered to be
a mitigation factor; Respondent's good faith shall be determined by EPA.
Should EPA require that Respondent pay a stipulated penalty during the course
of work undertaken pursuant to this Consent Order, payment of such penalty
shall be due and owing within fifteen (15) days from the date of receipt of a
written notice from EPA notifying Respondent that penalties have been
assessed, except to the extent the procedures of Section XII herein, if
invoked, delay the required payment date. Payment shall be made by certified
or cashiers check, made payable to "EPA Hazardous Substances Superfund". The
check must reference the name of the Site and shall be sent to:
U.S. EPA -Region IV
ATTN: Superfund Accounting
P.O. Box 100142
Atlanta, GA 30384
• • -15-
A copy of the transmittal letter should be sent simultaneously with the
required payment to the EPA Project Coordinator. Interest shall begin to
accrue on the unpaid balance at the end of the fifteenth day upon which
payment is due. Nothing herein shall prevent the simultaneous accrual of
separate penalties for separate violations of this Consent Order.
The stipulated penalties set forth in this Section do not preclude EPA from
electing to pursue any other remedies or sanctions, which may be available to
EPA by reason of the Respondent's failure to comply with any of the
requirements of the Consent Order. Such remedies and sanctions may include a
suit for statutory penalties up to the amount authorized by law,
federally-funded response action, and a suit for reimbursement of costs
incurred by the United States.
XV. INCORPORATION OF REPORTS
Any reports, plans, specifications, schedules, and attachments required by
this Consent Order are, upon approval by EPA, incorporated into this Consent
Order. Any non-compliance with such EPA-approved reports, plane,
specifications, schedules, and attachments shall be considered a failure to
achieve the requirements of this Consent Order and will subject the
Respondent to the provisions included in Section XIII above.
XVI. RESERVATION OF RIGHTS
Notwithstanding compliance with the terms of this Consent Order, including
the-completion of an EPA approved Remedial Investigation and Feasibility
study, the Respondent is not released from liability for any actions beyond
the terms of this Consent Order taken by EPA respecting the Site, except to
the extent the provisions of the covenant Not to Sue in Section XXIV
provided. EPA reserves the right to take any enforcement action pursuant to
CERCLA/SARA and/or any available legal authority, including the right to seek
injunctive relief, monetary penalties, and punitive damages for any violation
of law or this Consent Order.
The Respondent and EPA expressly reserve all rights and defenses that they
may have, including EPA's right both to disapprove of work performed by the
Respondent to the extent inconsistent with the RI/FS Work Plan, and to
request that the Respondent perform tasks in addition to those detailed in
the RI/FS Work Plan, as provided in this consent Order. In the event that
the Respondent declines to perform any additional and/or modified tasks, EPA
will have the right to undertake any such work after the conclusion of any
applicable dispute resolution process. In addition, EPA reserves the right
to undertake removal actions and/or remedial actions at any time.
• -16 -
In either event, EPA reserves the right to seek reimbursement from the
Respondent thereafter for such costs incurred by the United States. EPA will
not be1arbitrary or capricious in any action taken under this Consent Order,
including any action taken in exercise of the rights reserved under this
section.
Neither entry into this Consent Order nor participation in the RI/FS shall
constitute the admission of liability for any purpose, or adjudication or
waiver of any right or defense of the Respondent with respect to any prP.aent
or future alleged liability for conditions at or near the Site, or all
admission or adjudication of any fact or conclusion of law arising out of any
present or future alleged liability for conditions at or near the Site, or
evidence of any wrongdoing or misconduct or liability to any person on the
part of the Respondent.
Respondent reserves all rights that it has or may have to assert claims
against persons or entities for matters arising out of the Site or its
operation and ownership, including, but not limited to, claims for breach of
contract, indemnity, contribution, nuisance and claims under federal, state
and local laws.
XVI I. REIMBURSEMENT OF COSTS
The Respondent shall fully reimburse EPA for all oversight costs, not
inconsistent with the NCP, which are incurred by the U.S. Government with
respect to this Consent Order. At the end of each fiscal year, EPA shall
submit to the Respondent a demand for payment and an itemized accounting and
documentation of all oversight costs which are beiag cl.aimed. The payment
shall be due within thirty (30) calendar days of the Respondent's receipt of
such a demand and accounting and shall be made by certified or cashiers
check, payable to the "Hazardous Substance Superfund."
Respondent reserves the right to dispute the amount of any oversight costs on
the basis that: (1) EPA made an accounting or mathematical error, (2) such
costs or a portion thereof were not actually incurred by EPA, or (3) such
costs were incurred in a manner inconsistent with the NCP. Such disputes, if
not resolved informally, shall be subject to the Dispute Resolution process
(Section XII of this consent Order).
Checks should specifically reference the identity of the Site and be
addressed to:
u. s. EPA -Region IV
ATTN: Superfund Accounting
P. 0. Box 100142
Atlanta, GA 30384
• -17 -
A copy of the transmittal letter should be sent to the Project Coordinator.
Except as provided by t~e Covenant Not to Sue in Section XXIV herein, EPA
reserves the right to bririg an action again~t any responsible party pursuant
to Section 107 of CERCLA for recovery of all response and oversight costs
incurred by the United States related to this Consent Order and not
reimbursed b¥ the Respondent, as well as any other past and future costs
incurred by the United States from the Fund in connection with response
activities conducted pursuant to_CERCLA/SARA at this Site.
XVIII. OTHER CLAIMS
Except as specifically provided in this ~onsent Order, nothing herein is
intended to release any claims, causes of action or demands in law or equity
that EPA or the Respondent may have against any person, firm, partnership, or
corporation, not a signatory to this Consent Order, for any liability it may
have arising out of or relating in any way to the generation, storage,
treatment, handling, transportation, release, or disposal of any hazardous
substances, hazardous wastes, pollutants, or contaminants found at, taken to,
or taken from the Site. This Consent Order does not constitute any decision
on preauthorization of funds under Section lll(a)(2) of CERCLA.
Additionally, the Respondent agrees not to assert any claims or causes of
action against the United1States or the Hazardous Substances Superfund for
any costs arising out of the response activities taken at this Site pursuant
to this Order or to seek any other costs, damages or attorneys fees from the
United States, its agencies, employees Or contractors, which arise out of
response actions taken at the Site.
XIX. OTHER APPLICABLE LAWS
All actions required to be taken pursuant to this Consent Order shall be
undertaken in accordance with the requirements of all applicable local,
state, and federal laws and regulations unless an exemption from such
requirements is specifically provided herein.
XX. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT
Respondent agrees to indemnify and save and hold the United States
Government, its agencies, departments, agents, and employees, harmless from
any and all claims or causes of action arising from or on account of acts or
omissions of the Respondent,. its officers, employees, receivers, trustees,
agents or assigns, in carrying out the activities pursuant to this Consent
Order. EPA is not a party in any contract involving the Respondent at the
Site.
• -18 -
XXI, PUBLIC COMMENT
Upon submittal to EPA of an approved Feasibility Study Final Report, EPA
shall make both the Remedial Investigation Final Report and the Feasibility
Study Final Report available to the public for review and comment for, at a
minimum, a twenty-one (21) day period, pursuant to EPA's community Relations
Policy. EPA will attempt to provide the Respondent with notice of
information to be disseminated to the public and will consider Respondent's
comments on such information. Furthermore, EPA will provide Respondent with
notice of public meetings to be held by or sponsored by EPA to explain
activities at the Site, so that Respondent might have the opportunity to
participate in such a meeting. Following the public review and comment
period, EPA shall notify the Respondent which remedial action alternative is
approved for the Site.
XXII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
In consideration of the communications between the Respondent and EPA prior
to the issuance of this Consent Order concerning its terms, the Respondent
agrees that there is no need for a settlement conference prior to the
effective date of this Consent Order. Therefore, the effective date of this
Consent Order shall be the date on which it is signed by the Regional
Administrator of EPA, Region IV.
This Consent Order may be modified by mutual agreement of EPA and the
Respondent. Such modifications shall be in writing and shall have as the
effective date, that date on which such ffiodifications are signed by EPA.
No informal advice, guidance, suggestions, or comments by EPA regarding
reports, plans, specifications, schedules, and any other writing submitted by
the Respondent will be construed as relieving the Respondent of its
obligation to .obtain such formal approval as may be required by this Consent
Order.
XXIII. PARTIES BOUND
This Consent Order shall apply to and be binding upon the Respondent and EPA,
their agents, successors, and assigns and upon all persons, contractors, and
consultants acting under or for either the Respondent or EPA or both. No
change in ownership or corporate or partnership status relating to the Site
will in any way alter the status of the Respondent or in any way alter the
Respondent's responsibility under this consent Order. The Respondent will
remain the Respondent under this Consent Order and will be responsible for
carrying out all activities required of the Respondent under this Consent
Order.
The Respondent shall provide a copy of this Consent Order to all contractors,
sub-contractors, laboratories, and consultants within fourteen (14) calendar
days of the effective date of this Consent Order. For all contracts and/or
agreements related to the performance of the RI/FS, and all such related work
at the Site, which Respondent enters into after the effective date of the
-19 -• Order, Respondent shall provide a copy of this Consent Order to each
contracting party within fourteen (14) days after entering into such a
contract or agreement.
XXIV. COVENANT NOT TO SUE
For, and in consideration of, Respondent's satisfactory performance of the
activities conducted pursuant to this consent order, including payment of
oversight coats,· and upon termination of this Consent Order pursuant to
Section XXVI, EPA covenants not to sue the Respondent, its officers,
employees, and agents in their capacities as corporate representatives, and
Respondent's successors assigns and subsidi~ries, for the work performed by
Respondent under the terms of this Consent Order.
Thia covenant not to sue shall not be construed to limit EPA's right to sue
or to take any
Consent Order.
not parties to
persons.
administrative action against persons who do not sign this
Nothing herein shall be deemed to grant any rights to persons
this Consent Order, and EPA re~erves all rights against such
XV. NOTICE TO THE STATE
EPA has notified the State of North Carolina pursuant to the requirements of
Section 106(a) of CERCLA.
XXVI. TERMINATION AND SATISFACTION
The provisions of this Consent Order shall be deemed satisfied and this
Consent Order shall be considered terminated upon the Respondent's receipt of
written notice from EPA that the Respondent has demonstrated, to the
satisfaction of EPA, that all of the terms of this Consent Order, including
any additional tasks that the Respondent has agreed to perform, which EPA has
determined to be'necessary, have been completed.
BY:
anagement Division
U. s. Environmental Protection Agency
Region IV
•
-20 -
Beazer Materials and Services, Inc., formerly Koppers Company,
Inc., the Respondent in this proceeding, has had an opportunity
to confer with EPA and hereby consents to the issuance and terms
of the Administrative Order on Consent for the performance of the
Remedial Investigation and Feasibility Study at the Koppers site
in Morrisville, N. c., U. S. EPA Docket# 89-12-C.
BY:
Inc.,
General Counsel
Bez Materials and Services,
formerly Koppers Company, Inc.
Date: March 14, 1989
•
4WD-SFB
Shannon Cr.aig
Kopper.s company, Inc.
436 7th Avenue
Pittsbur.gh, Pennsylvania 15219
RE: Koppers Site
Mor..r.isville, NC
Dear Ms. Cr.aig:
•
This letter. is written in response to our. phone conversation of December 16,
1988. Due to the identified contamination of PCP and/or. IPE in private wells
of 11:::>rrisville and the fluctuations of that contamination, EPA ver.bally
requested that Koppers, Co. incr.ease the fr.equency of sampling from ever.y 6
months to no less than quar.terly sampling. This letter ackno1-1ledges your
agreement of that request.
In addition, EPA reiterates the request to also conduct analysis for. dioxin and
dibenzofur.an on all pr.ivate well samples wher.e PCP has been detected. Koppe.r.s
Co., Inc. also ver.bally agr.eed to this EPA r.equest dur.ing ou,: Decembe.r. 16, 1980
conversation.
Finally, EPA requests copies of all data generated dur.ing the dioxin sampling
of private well samples during the 1988 sampling effor.t conducted by Koppers.
As per our negotiations meeting held on December 14, 1988, EPA is leaking
forward to your. RI/FS Work Plan submission. Please contact me at 404/347-7791
if you have any question concer.ning this letter.
Sincerely,
Bar.bar.a H. Benoy
Remedial Pr.oject r,1anager.
cc: William Giar.la, Kopper.s Co., Inc.
John Mi tsak, Keystone
Pat DeRosa, NCCHR
DEC ! 5 1988
s.r.a.!1.non Cra.i~l
Kopp,,re Co:npany
•
436 SCVe..."!th i\Ve!:JUC, Suite 1940
Plttsbur.9h, Pennsylvania 15219
fiillar.:-lil'llj o.i: Privat~: YJclls
Vicinity of {"~)€T.S C.otlj_:x;ny Sit-2, M::Jrrisvillc,
•
'l'his l~tter. is w:r.itt2n us follow-up doccuneritatia-J to OUT. tl:!.l.:.:!p11-::m,3 ccx1v-::r.m:ition o:L l)2ce1i1.i:x.,r. l:i, 1988. ;.::ci~-,-er.s 2cr.1r,at!y Ii.as stated that dioxin tostins wouJ.\:' ·ty.2 c..-o:-t..'iuctE-d i-.E p.::ntachlvrar.··henol ( ?(::I:) is d.:~t•~ted. EPA ackno,,:lfa'iges th<:! ne.,-=-'O. f~:i::-dioxin te~tinc.J in the \,\"ell saui;.,les if p.:;p is dt:::t~~t.c--d; indtK.:.d, EPA off.i.cially T.'<:.-...:_!uests that l:oth dioxin an('l dit~.r..zoiur.an a11alynes h~ c.mdGct~•:3 \.'.rhi::!r•?; PCP haz 'bt:""e:n det£~Ct'i:d in dr.il1t:ing watc.::r..
Pl(:..'aS·2 cootact ~K~ if J18u have t"...11y cr..1estions cancer.rdng this· r~-ruest. I 8-?in 1)<2 reach~ at 40<1/347-77$.1 dur.ing 1::>Usiooss hou.r.s.
Sinc12r.cly,
Har:bm:a E. &!IIO'.{
H.mnedial Projec.."t ~•1aru!9cr.
cc: Pat DcRo.sa., NC!Jf.i:S
C'.1.'"la.r.lotte Varla:::;hkin" tKlX'1£
•
NOV 3 0 1988
C!:::R'r•IFIE!J ~-~AIL
RBTU;;:r.~ r~:.::c:::r PT RJ.:!QU'ES1'LD
William f·. Giarla
tr .. oppers Company, Inc.
436'Sev~nth Avenue
Pitt.s·1Jt1r~{h, i?(~nnsylvania. 1:i219
Re: }~c-ppcrs cornpany Fror•c-:rit;c) r.;PL Site::~
Morri£ville, North Carolina
Dear Mr. Giarla1
';.'h:z; United States EnvironEental Protect ion F-.gency ( :'~iJl\) is
consh,erinc; spending public funds to investigate and respond to a
docur.:ent0d release and threatened releano cf hazardous su·bstances,
pollutants, and contaminanta at the Koppers Company, Morrisville,
North Carolina Site (l1ereinafter referred to aa the '}Cite''). This
action will be taki,m by EPA pursuant tc thn Compreh,:insi ve
Environmental Eosponse, Compensation and Liability Act of 1980
(CBRCLA), 42 u.s.c. Section 9601, !:.!:_ seq., a!3 11rr11:,ncea by the
Superfund Amendments and Reauthorization Act of 1986 (f'.L. tlo.
99-4g9), unless EPA determines that such action will be properly
performed by a resr,onsible party.
Responsibl"' p&rties, !ls d.:efins,cl by :,ection 107(a) of Cl';RC!.A, '12
u.s.c. Section 9607(a), as amend~d, include the curr~nt and former
owners or operators of a site, and persons who 3enerote0 U1e
hazardous substanc12s or wP.-re invo1~j0d in tht~ transpcrt, trentrnt.:nt,
or disposal of them at the aite. 3as~J on data received during our
investigation of the Site, EPA has ~etermincd ti!at you are~
genorator and/or ownsr/operntcr of hazardous substances found at
the Si.te and are therefore a potentially responsiblE party. More
specifically, as a generutor, you m~y have relaasc6 or cau~ed to !le
rel,.~as,~d j nto the r.:!nviron:m.:--nt at th~ Sit~, various 1u.1_zarC.ou!;
subAtilnceo, including, ~ut not limited tc p~11tachloroph~nol.
By this letter EPA intends to notify you of your potential
liah!lity with regard to this Site and to encourage you, ~Ba
pottntially reaponsibla party, to undertake voluntary cleanup
act.i.vities. Und,2r CERCLA, a.nd other laws, resr-~cnsibl,.: partier; :;11:ty
be liable fer all monies expended by the govornmcnt to take
necessary corrective actions at a site. Thes~ actior1s includ0 tt10
planl!ins, eniorc1:rac:nt anr:.i inv,~sti~J<1.tion concerni:1g a site r".!S well
as all ~1can:J1~ activities.
• • - 2 -
'i.,he Koppern C:ompany, Norrisville, NcrtlY _Carolina !3ittl was one of a
number cf 6ites which in July l,i8S were ,.:roposed fo:r inclusion on
the Nation~l rriorities List {~PL). Fur ev8rV site on thn ITPL,
Congrr.ss has mandat•2U t11at EPA cievelop and imple1i1~nt a Remedial
Investigation 11nd Feuisitiility Study (F.I/FS). ··rh,, actions then •:•f
which you. arf: being notified. anC o(ferec.: an opportunity to
participate include:
1. Development of a worl: plnn for an RI/FB;
3.. Any ot!1-2-r JOi~asur~s \·:'i'i.ich !!"1a.y t,e n~cessa.ry to abati:::, hnzat·i:Jn
posed by th8 £ite.
To facilitftte en u~Jre~cent witl1 the PRPs for the perforfil&nc~ of the
ntove-referertced ntatters, EPA, pureuant to Section 122(~) cf
CERCLA, 42 u.s.c. SEction 9622(e), has dstermined that~ c0riod of
formal negotiation during which no response action mhy be taken by
t1'h::: p.gency will l:,e be.n<:ificial. 'l1he A.~Jency will consider Deceunber
14, 1988, as the beginning of the formal nesotiation period and, as
is provided foi: by Section 122(e) of CERCLi'., the PRPs 1,ill have
,; i xty ( 60) cays :::rom this dati, to submit a wi: it ten good faith of fer
to conduct an RI/FS. This date is the date all parties have agreed
to meet to discuss the enclosed Administrative Order on Consents.
Sho..ild EPA receive a written good faith offer before, the: conclu,;ion
of the initial sixty (60) day moratorium, the moratorium period
will be extended for another thirty days to allow EPA and the PRPs
to enter into a fully negotiated administrative order on consent
for the performance of an RI/FS. If~ good faith offer is not
received by the conclusion of tha initial sixty (60) day ~oratorium
period, EPA will conduct ito own RI/FS at the earliest possible
datt.
To constitut~ u good fait1: offer to conduct or finance an RI/FS,
your propot~al should i r.cluci.0:
_l. A statement cf your wiJ.lingne"s to conduct an P-.1/F·G (This
statement must be consistent witl1 t110 statGment of "Nork
to be Performed'' whicn mav be found in the draft
administrative-or6a= on c~ns~nt w1"'..ich is ~riclo!":ted);
2. A d~monstration of your technical capability to undertake
an RI/FS or the name of the firru which will actually
cor:duct tD,e RI/FS -if no firm hao been sel~ctE!cl, thG
process by which a firr:1 will be .selecteO should 'b1e set
{orth~
3. A statemE.:nt of }1ow you ~;ld ttte ~ther f'P.Ps plan t0 :-:_;rocf-!e0
\·Ji th t.:1·1s \-JOr~:;;
• • -

3

-
4. p_ statement of your willingness to reimburst~ EPA for tlie costs EFA will i11cur in overseeing the Pru> performance of the P.I/FS;
5 A paragraph-by-par~graph response to EPA 1 e draft aciininistn,,tive order on consent; and
6. The na1ne, addr£ss aod phone number of the party er pcti."t.lzs who will rt!present you in !!e:gotiations.
v:i thin ten ( 10) calendar days of your receipt of thi.s letter, you must provide EPA with a written statement of your willingness to enter into ncgoti.i.tions for undertaking or I'inencing an RI/F3 at thin Site. Your letter should indicate the appro?riate name, addrces, i)nd telephon\:: nu1nber for fl1r ther contact wj th you a.nd include a statement ot the types and the eztcnt of activities you may be willing to undertal~a. Where you are already involved in diocussions with EPA~ state or local authorities or engaged in voluntary action, you should continue t"i:1at activity c:1.nd rer-iort the.-statue of those dimcussions or that action in your letter. Pleane pro·Jide a copy of your letter to any other parties invclved in those discussions.
Your r"'i:-ly to this letter s},ould be directed to:
Ms. Barbara H, Benoy
Superfund Project Manager
U.S. Environmental Protecti.on Agency 345 Courtland St., N.E.
Atlanta, GA 30365
To facilitate negotiations you will find enclosed a draft administrative order on consent fer the performance of the Rl/FS.
EPA would like to encourage good faith negotiations b8tween you and the Agency and t-etweean you und other potentially :responsible parties. 'l'he 1\g,:rncy also encouruqcs ti,-e FRE·s to coordinate their offer,i to conduct an RI/FS and recommends that a steering committeo be formed wf1ich ·has c hea.6 spc}:E)Sp<=r.son.
Due to the seriousnesE of tha problem at the Site and the attendant le~al ramifications,
immediate ~ttention.
Benoy can be reache<l
we: hoi?e that you
Should you need
at 404/3?7-7791.
will give theGe matters your
more information, Barbara
Should you have any
• •
-4 -
questions regarding the legal ramifications raised in this notice,
contact R. ~ayne Lee, an attorney in the Region's Office of
Regional Counsel, at 404/347-2641.
Sincerely,
Patrick M. Tobin
Director
Waste Management Division
cc: Pat DeRosa, NCDHS
Charlotte Varlashkin, NCDHS
•
CERI'IFIED MAIL
RE.TURN l<ECEIPT REQUESTED
. NOV 3 O \988
Shannon Craig
K0ystone Environmental Resource,s
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219
R<2: Koppars Company PrO_f-'OSed NPL Si.te
M:>rrisville, North Carolina ·
Dear l",s, Craig:
•
The United States Environmental Protection Agency (EPA) is considering
f3]?011ding public funds to investigate and respond to a documented release and
threatened release of hazardous substances, pollutants, and contaminant,:; at
tne Koppers Comf>any, Morrisville, North Carolina site (hereinafter referred
to as the "Site"). This action will be taken by EPA pursuant to the
COmprehensive Environmental Response, Compe.'lSation and Liability Act of 1980
(CERCLA), 42 u.s.c. Section 9601, et seq., as amended by the Superfund
Amendments and Reauthorization Act of 1986 (P,L, No, 99-499), unless EPA
determines that such action will be properly performed by a resµmaible
party:
Responsible parties, as defined by Section 107(a) of CERCT.A, 42 U,S.C,
Sccti01 9607 (a), as amended, include the current and fo=tr a..mers 6r
operators of a site, and per.sons who generated the hazardous aubstances or
were involved in the transport, treatnl€'nt, or diSFQsal of them at the site.
Based on data received during our investigation of the Site, EPA has
determined tnat you are a generator and/or a-mer/operator of hazardous
substances found at the Site and are therefore u potentially res1:xmsible
party. More specifically, as a generator, you may have. released or caused to
oo released into the environment at the Site, various hazardous substances,
including, but not limited to pentachlorophenol. ·
By this letter EPA intend9 to notify you of your potential liability with
regard to this sfte and to en=rage you, as a rctentially responsible party,
to undertake voluntary cleanup activities. Under mRCTA, and other laws,
resf(IDBible parties may be liable for all noriies expended by the government
to take necessary =rrective actions at a site. 'I'hase actions include the
:;,lanning, enforcement and investigation concerning a site as well as all
clecmup activities.
• • .,
-L. -
'rhe Koppers Company, Morrisville, North carolina Site was one of a m11nb<--r of sites 1·1hich in July 1988 were prq;osed for inclusion on the National Priorities-List (NPL). For every site on the NPL, congress has mandated that EPA develop and implement a Re.medial Investigation and Feasibility Study (RI/F'S) • The_ actions then of which you are being notified and offered an opportunity to participate include:
1. r.>evelopnent of a. work plan for an RI/FS;
2. Conducting the Rl/FS; and
3. Any other rneasures which may be necessary to abate hazards posed by the Site. ·
To facilitate an agreement with the PRPs for the performance of the above-referenced matters, EPA, pursuant to Section 122(e) of CERCLA, 42 u.s.c. Section %22(•,), has determined that a period of formal m~tiation during which no resp:Jnse action may be taken by the Agency will be beneficial. The Agency will consider Deca...nu:>er 14, 1988, as the_ oo-_;inning of the formal m.'gOtiation peri<X1 and, as is provided for by Section 122(e) of CERCTA, the PRPs will have sixty (60) days from this date to submit a 1.ritten go:xl. faith offer to cona.uct an RI/E'S. This date is t...tie date all parties have agreed to meet to discuss the enclosed /\dntlnistrative Order on O::msents. Should EPA receive a written gooo. faith offer before the conclusion of the initial sixty (60) day moratorium, the moratorium period will be extended for c>.nother thirty days to allow EPA and the PRPs to enter into a fully negotiatoo administrative order on consent for the performance of an RI/FS. If a good faith offer is not received by the conclusion of the initial sixty (60) day rroratoriLllll pericrl, EPA will conduct its awn RI/l•S at the earliest p::issible date.
To constitute a good falth offer to condt.'Ct or finance an RI/F'S, your pr0£05al should include:
1, A statement of your willingness to conduct an RI/F'S (This statement must be consistent with the statement of "work 'to be Performed"· which may be found_in the'draft administrative order on consent which is enclosed);
2. A demcnstration of your technical capability .to undertake an RI/F'S or the name of the fil'n! which will actually conduct ·the RI/FS -if. no firm has been selected, the process by which a firm will be selected should be set' {Qrth; :' ·
3. A statement of how you and the other PRPs plan_ :to proceed with the work;
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4. 1'. statmn<mt of your willirr::Jlillss to reim'burw CPA for Um coots 1'PA
will incur ln =rseslng the PRI' i~r.formance of the ro./FS1 C• -
5 A paragraph-by-paragraph response to EPA' s draft administrativ0
order on oonsent; and
6. 'It1e l13llle, addreas and phone number of the party or parties who will
repreaent you in negotiations.
Wit.111n ten (10) calendar cays of your rl!'Coipt ot this letter, you must
provide: fil'A with a written stiltemei:1t of yow: •tillir..:Jncoe to e.nter into
negotiations for uiidertakin<:;1 or financing an lll/FS at this Site. Your lett.sr
should indicate the awropriate !Wl!e, address, and telephone n1.1,':lber for
further contac..'t with }'Ou ancl include a statement of the twes and t.'<e extant
0£ activities i1ou My bl> willing to undru:ti.\ke, \i.'here ;r"OU are nlread-t
involved in diBCUBrdons with EPA, state or local authorities or e09ag&J in
voluntary action, you ahould continue that .ictivity aml report the status of
t,,ose discussions or that action in )'IXr letter. Please provide a co-,;y ot
your .l,~tter to any other parties involved ir! those discussions.
Yciur reply to this letter should ;;;G directt,d to:
Ns • Barbara , H. l3(lnoy
Suf.<,lr fund Project. Manager
u.s. Environm,mtal l"rotectioo Age,.~,
345 courtlm~ st., N.2.
Atlantr., GA 30365
To facilitate negotiatiarui you will find t?.r.closed ;, draft adirJ.nietrative
orcter on o:mae.nt for the ped:ormanc-a of too iU/fi'S.
£PA would lir.e to e..'1CO\Jrag9 gc:,cQ faith ne,,,"'Otiations bet1-1een you and the
Agenc}' and between you and other potent.ially respondble _..'<!rties. Thei Agency
also enoow:agea the PRPa to coor.d.i.--iat.G thoir offers. to 1.-unduct an H/i'S and
raCctllltlCnds that a steerir19 COl!llliittee be formed which hae a he.ad spokesperson.
DI.le to tn.ci-,aerioueness of the vrobltilil at the Site and tlw attendant legal
ramiticatic:iru.i, we 110£.><?; that you will give tl,ese mattera your _immadiata
attention. Should you need =e information, Barbara 8'ilnoy can be reached at
404/347-7791. &110\ll.d you have any
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questions regarding the legal ramifications raised in t1.1is notice, contact R.
\·Jayne Lee, an attorney in the Re;tion' s Off.ice of Regional Counsel, at
404/347-2641.
Sin9erely,
Patrick M, Tobin
Director
Waste Manager.ient Division
cc: Pat DeRosa, NCDHS
Charlotte Varlashldn, NCDHS
•
DEC 2 7 198B
Hark SW~ r. t. z.
U11it Structu~us~ Inc.
? • 0. g()~ A.
Hi~.{hway 54 :.•i~st
~-'\or.r.tf(vili.e, r:c 27!j60
f{e: :i~o1rp€~r.~ c.:(.rrRp~ny Pr.cp,C)Bi";Z! ~JVL ::~tt;i
Horrii;vil.lQ, North C11rclina
•
~i.'t10 Unitt.-;d Statero tnvir..::n.,~Gntal Prot~c:tion l+:;~'!.: .. cy-{EPA) iSi
con.;id:~r.in9 ~•r.:H1:-,,._IJ.ir!9 9t..ltJl.ic ft:nds t.1.) ioVf.·:.tstlg::!it*.!: and Y.'.<.t:tipond tl) :\ ··\·
1.j,,ct:m{~nt\'Sld Y.J"l0:3~e u.nd. tl:'!Y.1,;at.cn}~d r~lG:ase of haz;,.rdOLH! ~;ubst;::~n1~t!is,
r,1nllnt.ant,z~ ~u.d CO!'lti3mh1.{~a,ta at the li..o;;-1;cn:s Compa.ny, Hor:·r.is'-·iil~,
nor.th cnr-olina Sit,:~ (h.::~r.-iinaft€.'C r.~fer.te.1 to AS t'fl-9 ~sit-a."). 'Y-bir,
action will b~ taten hy ~PA pu~Gu6nt to th~ co~p~~h~nsive
t~nvi.r:oni.<:HErnt0.l He.!:9~>0-n;;:e.,, c·o~p~n!-~~~icni _itUci. Liat.,ilit.f l\,ct C!~ 19!.:.0
(CEPJ..::LJ-,), 42 OsS.C-.. ·sectio!l. 960.l., c.t. tG-SJ•, n:;:a.men<lt.1:<l b7~ t.i:H.~
Stl~a.n: f unrJ t'\·:u$:'nU-~l!-.f1l s ·u'n~l i.'i~:i-ni thoi i ta·t .. on It.ct Of 1 ·98b { !:'. L. ti,:.
Sl9-4';J9}, unless EPA det(jrminaei th&t G.Ue!h. e;ction will he pr.cpe:r.ly
t)t•rfo.trJe:d by ¢1 •rt:1sponsi.l::la par:t_y.
Rcsp-ct>.tJ.ib-1.: partie:~. as 1.'iefin~J t,y So::tion 107(a} c,f CF;f,tt..:.£.,}'-11 ~~2
u.s.c. Section 9G07(a), as aaended, laclu<le the current and fo~~-~
own0r G Ot' ope~o. to~ s ot ,s si t.0, and pet aoos w"!10 . g~n~r.;..\tt!d. the
hnz~.rdous subiitanctHJ or t-1ere in . ._.<.,lv-~d: in th~l tran.sp0rt, tr.e,1tm,}n.t,
or. diu..;,oe.a-1 of th.,Hlt ~t th~-sit$:.-t.aa-sad on data r.~c~.,ivflci ,7,ur:irig -~)UY.
lnvest.ig~tlou 6f th2 Slt~, RPA ha~ dete~minod th~t you ~re un
m,n,.,r./opni:·ato'C of the Site f.intl ar<.; tl1£•l'.~Jfoi:-,1 a :r.otential ly
r,J.;"~poneib-le. p-:erty. ·,,_
B'i trd.s latt-~H: ,;Pl\ intends to noti.iy ycu ,:,£ ymn: pcteatl.111
liBbllity ~itli _r~gaya to this Site ttnd co e!?CCUY~g~ you, ae 8
pote:,tially re-sponsibi.ll par.ty, to u,v.: .• ,r.t~k;,, volllntary clean;.;10
uctiviti.:s. Umfo:i: CtRCl..A, an-1 other laws, s:eeJ?Onsihli:-pint l,>!l ::.ay
b~ l iabl~-for. a.l 1"··\r-icn'it•.a 0::!.p~-nclOO rJy th~ g(jvirnmcr,t t,.; tGkre ·
necoGsa~y corracti~G ~cti~ns ~t ~ ~ite. · ,~,~~~~actiono i11cl.ude tl1e
_p•li'f.nni.n~, entOcc<:~ment ·,:,.nd invostigafior,. :eonct•!rnint;; a i!lit:-::-a.G ~tell
as bll cie~ri~p activitiQa.
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T1;e ~opp2Xfi Com~any, ~o~riov.ill~, Jo1:th C~~olin~ ~ite ~as one 0f ~
nua1beu:, c>f .sit.es whi..:::tl in .J...11:l 1Jl~2 ti.:orc propQe-~d t0r. in;.;Lus~c,:. OI1
tht~ ::~at~l..:·.;1ial l?ri0r,1t.i~e I,iet: (r.;:PL). r·o,: ~V•tr:y i,it.0 (;n th1;~ t·~~·s1 .. ,
Cc.-ngl·t::~.i3~ ·r-~:'.:\ia m~faC.et"'<l t11at f;i'A •~~:V':JQ_p ;!).ttd i;.1pJ.o;:i~n:(t ,2_ Rt:H-rt0,:,•.i~1l
1nvostig~tion and Fe~eibllity study (~I/FS). Th~ actio:i~ ~fiCO -or
'i-Jl'd.ch y;,.Ju ?lr."e he:!t;i3· nctified <tnd of.ftlt·cid t:.n. op9~:,.r:~"~i:ud.t;, t:::,
pa~tl~ipat~ i.ticludc!
.'3. Any oth~.r. tr:'f:i!.sur.c;'J ~ ... ;hich !r1f\Y b~:~ ru;.-o.-.;1e,·s.ll.r.j' tc :-:h.::.lt-~ !\~"-Z<::r.t:.'!s
p0$~d by thu Site.
•fir> £c1c.iJJ..t~1tc ,:.n a;r0.,.St:i~nf.:.: riitt'. t":10 P1.~Pr~ fc;r: ti-:~ J>t.;1.Y.:f.o:t:~-Hn1c!! of: th--2
Bb<:;";~-:f·ef(';r<}n(;it::..'t ~:;.,ttcrs., ;i'J_l'f&, pur.~ua,1t t<l 81:i:h;;ticn }.22(~) o[
C.J";HCl:.J•t, ,._fl u.s.c. i;ectic>~--; 962J(ttd, cl.~t,:::r:-n-~i:·:c.:d t.h .. -;.t: a r,;•f;.'E:lc\.fJ of
tc,r.t-Ja.1. nt::~;!ltiati.Qn :Jttr\rig ~~iich tHl .r.o~;-on~~~ action ~n.y 1)~. t;;.ker, b}•
t'l1~· >.qe~1cy wi.!..l b~ ?:-.0rn.r;£lc.i.al. '!'\':le f:o.s:m~..l r:t-tgct.l.at1.on tH>.r.i:;,d
1..::eg.tu1 rJ(J<.'~C::b!':·.t: J.4, 1,a~>, th~; ,1ata: on \·:hich t:?A .na.t irttth th:t Koppf.t.r:i1
C'Oh1f71-:li\f, ,'l!'tothc!ir. F~~P, tr.;; dis,;-;,15.s th:!~ m;..:;.ttia,.~.. ,'f;i._19_ it; pi:ovidE<! fe;r
't····.r gc'2ct1·-, .. , i )<""J(~ .. \ .,,;; r:;:,.~('f ~ ,,;~..,,_ -~;.it~!;} ·,.,1· l' hava toiKt'.J (·6v'') da."(l <-J.J , __ ...,. --•",I~ ........ ,.,.,,.J.J,, ... , '-l_~ .... i:-•. i.."" ,, .. ~, · .,. __ J -~.r
~r.om this dllt~ .. to :;,;:Jt;-~it ii ~·ritti:tn goud faith offt-j_r. to c(1nd~1.:::t an
tt!/f·B. f;hould J~J?:\ ri:-::-ca!.v:~ z... ·wr.~.tt~t: -;iOOZ~ tait·h offt,:f;r. b~fc:r.<;; th'i1
i:·oncluetc;,w ot the .Lniti9..l sl.:<.t.y (60} day mor:atorium, t".iv~ hlt::r.::r.tc.•.1:-itH';i
_p~riod will btz· ex.t,znclee. to.v: anotl:"1~r t~tirty days to allon !::~PA ant!
thi€· PRP.!:~ t.o ~nt.~r. into a fu).1.l' l'.HNJOti.ata~~ ~dm.ini:::1:t:1:~ti;;~ ,i.r.d~r. on
C<;r1t,:~nt for. the p~rf.orm~n-~,~ o-f at;, R.1/V'i-i.. If: a go,,:id fait'h ol'.ft•r. .ts
\10t Y.f'.:C!r.!ive.j !)y t.11,i cc.nclueton cf th~ i.nit1al at:<ty (CO) t.!a:,·
raor.&t.e;r.iu~ pii:ri.c,O, f;?A. ~ill ccn-:luct. it·.s o-wn N:I/FS ~t th~) e"l:tr.li\:.1st
POtH1 j_ bl.•:, de.to•
Tv c:..1r,1atit.ota a. goo(t f~it'h o.f:fr;r. to co1::tduct. o:r: !:\ni~nce. n.n RI/r.·:;,
your ptopo~al sbct1l.d include1
l. !i. $ti~t~i2.-~nt Gf yOl:J.;:' wi 11.i~gn~z.s t.c C(,H\dUCt ~n t(.t/FS (";'.·his,;
tJt.a.tt'!»t-.5:"Ut ;1.}u,;.n: b,,, c·cnsir1t0n:t ~dth the stiitr.;~1~nt ot "~;o.r·;.~
to t,~ ?.~r. f 1:;n~m~C u wtd .. ch m.z.t },i-(,i foi.lnd :i.n the cl.r.-&t't.
aQmli·:f.st1:-;.,tlv~ cr.·d<::r en c<2rJst}nt vih1c:h i!$ 2.-nclot;i:.•~);
i. Ji. dei.1ot"1etr.1.1tic11 of ·yc·tl.l" t-.~:chr~ic.al c.apabi.lit-y t<;", u:s·.l~r.t~i<:r~
··r r,1'{/:f'.'{" ,-:,,Y th=,,~ ... ...-.,...(. ti·~~ ... r-1·~..,. ,,_,,,-.:i~', t..·-ill .,,~tu--·Ll-c., ei.,.( •"• ,i:,::;. ·,.;.,.,, ·~•= J,..-,14:,a ,J_ --~v _.. "·'-'"· ~•,. -....l ,tJ., "~ ~;. ... J
cor·1-:~uct tJn1 f-:t/.t'S -if .r:.o ~ir.ttt ha!.\ b("::""n s~::~ctt;d, t.h•:;
f'<t"(::C~l::!itl. ~x ~1::ir.:h ,!;. fi.r.ret will 'bo .:le1l.t1Ctt.~d zhon.1.1.i _l:.?, {;:· .. ·t
t'.o.rth;
3. i.\ !.:~tntt;m,:.',t.1t t)f: }:Ori )'OU a.n(:'i tr~i'~ othar. f::rtPs. pJ..~rl to ~:.,r.cc•~f::i:.:.1
"l th tht.t wor.·:-;.;
• •
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A !it.at-r.n»~nt u::
costs !!,"A will
t.'he zr/rs,
your ~.tllingr,£1.:s.o to r~-imhur.sw EPA f.cH:· tiH~
incu·r. in ovc~r.s·et::ing th~ PKP ;:a:::r.fo.t:ui,nnc:,J f.>f:
5 A pt:l"eqi:-n.ph-by-~nragr:aph r.espc,nse to i~PA • !) dJ~i!. f-t
administrative erder on conaent: and
6. 'th<?> n1.H1o>, acdr.1;s0 and phone numbe.r. o; th,; pa>:ty or. p~:rti.;r,
1vh;;:. \ti 11 r.~pr.aeent you i r, negct iati ons.
Hitbin tun (10) ce.l,rn<loY. aeys at yo,:r. ,r.tJcelpt of t:hia l~ttcr, you
1~Dat pr.OYide R?A with a wr. i ttco atatemcnt of your 11ril.lLi::g:.(rns t,;;
,llnter into negot iatione for un<J,;,rtaking or. financing an 1n/JYS at
thie Sit0. Your. l'!'tte;,r i1houl6 indicate tht> ~pJn:·or,u:iatti mu111;,
addr,t,sa, and tel0r,.ho1rn number. foe turti:iri,r. contact ,1i.th yoq and
include a etatilillent of tho types ~ma t.}10 <!;.Xtent ,;;f actbdties ycu
nrny be will.in9 to 1..rndr,r.ta~.;-,. Whi,,i:-u you o.t:C'/ al..:eo/iy involvad in
<iiGcuiwiona .with U?A., atat<J o:: lo;;,a). authol:'iti,.,s or. ~n,;a>ied in
volunt.a,:y action, you sl:ioula c,:mtlm,e that a(l:tivity a.t1d re:por.t thq,
status of those diacusaioni, er t.h&.t action in your. le,ttc:r... Please
provide a copy of y,:;ur 1,;.ttor to ,._,,y otbar piu:Ues invo.l.v~d i.ill.
thoa,;, ,:H aaoi.m ion 1,.
Your n?pl y to this lot t.ex should t><1 d i.>:ncte6 to,
Ms. Bai:ba.r.a H. Bt,noy
Sµpcr. ftmd Projact Manns er.
D.G. Snvi,ronillental Pi:-ot.ecticm l\g,:mcy
34_.S caur.tla-nd st. •. , N. e.
Atlanta, El.\ ioJt.S
To f~cil:!.tt\te 1H;9otiations you ;,,il.l tint:'! enclosr.Jt a dr.:aft
ar~inistrative ordttr. on consent fo:r: t.he: per.torraanoie of U,e nt/Fs.
This Admfni.strative Or.tie,: reflects t'nc change~ ,.,hlch hliiv,, rc,sulted
ti:ol!\ .8P.!\'.lli,ne9otititione wit.h t..h<'! t:,opp11u:a Coir.r1eny.
E-f',\ i,,ould like to tmcour119•1 gQO<~ faith negot.!ations bat-.m.in you and
th<!: Agll<ncy and ?'letween you an<:l othi!T. .f-oi:.ential.ly ,.;,uponaibl"l
r:,a.J'.th1s. Th0 Ast~ncy i!li.o enoour.a9<11s tho f-!U1a to t:oor:d innt:..;. t:h~,i r
offera to conduct 1u1 R!./FS and r.:eoommend:, that u ~teering co.iilllitte.e
te fo.ri;ied whicll hiss a Jt~ad a;:::oJ.eapersou.
t,u., to the s;eriou,u:i.ei;s of. th<:r }'J:vblei?i
logal rallliffcations, we hopi., that _you
immedi~te. attention. Shculci you r.~ed
H•ntoy can be -r:-0&.-.::hed at 401/347-7791.
at the Sit,;, ar,o th-~ at.t-endant
t-iill gi11<o to.eat? ~1att.:ir.s ;-cur
sor.& 1.nfo.r.mati<..>n, e,u:b~ra
Should you hav,i afly
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qu"'stions r.cgar.di:19 the legal r.amifications r:ais<i,d in this notice, contact R. Wayno Lee, an attorney in the Re9ion's Office of kegional Counsel, ut 404/347-2641.
Sinc,2r.ely,
Is I UC:U~
Patrick H. Tobin
Director
Waste Management Division
cc: Pat DeRosa, RCDHS
Charlotte Varlashkin; NCDHS earl Hor.neman, Wyatt, Tarrant & Combs Tommy Hewitt, Unit Structures