NCD980729602_19860901_Jadco-Hughes_FRBCERCLA SPD_Administrative Order on Consent-OCR

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITED STATES OF AMERICA )
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Plaintiffs,
v. CIVIL ACTION NO. :
Defendants. ________________ )
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CONSENT DECREE
INDEX
Background. 1
Jurisdiction 4
Parties Bound 4
Definitions 5
General Provisions 8
Remedial Project Manager/Project Coordinator 13
Performance of the Work by Settling Defendants 14
U.S. EPA Periodic Review to Assure Protection of
Human Health and Environment 19
Additional Work
Quality Assurance, Sampling
Access . . . . . .
Reporting Requirements
Submissions Requiring Agency Approval
Assurance of Ability to Complete Work
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xv.
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XXVII.
XXVIII.
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XXXIII.
Trust Fund ...
Certification of Completion
Endangerment and Future Response
Reimbursement of Response Costs
Indemnification and Insurance
Force Majeure
Dispute Resolution
Stipulated Penalties
Covenants Not To Sue By Plaintiff
Covenants by Settling Defendants
Access to Information
Retention of Records .
Notices and Submissions
Effective and Termination Dates
Retention and Jurisdiction
Modification •...
Community Relations
Lodging and Opportunity for Public Comment
Signatories . . . . . . . . . . . . . . .
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITED STATES OF AMERICA )
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Plaintiff,
v. CIVIL ACTION NO.:
JADCO/HUGHES, et al.
Defendants. ________________ )
CONSENT DECREE
I. BACKGROUND
A. The United States of America ( "United States"), on
behalf of the Administrator of the United States Environmental
Protection Agency ("EPA"), filed a Complaint in this matter.
pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as
amended (hereinafter "CERCLA").
B. The United States in its Complaint seeks:
1. Reimbursement for monies already spent by EPA for
response actions at the JADCO/Hughes Superfund Site in Belmont,
Gaston County, North Carolina, together with accrued interest;
2. An injunction requiring Defendants to perform and
fund studies and remedial work at that Site in conformity with
the Record of Decision and the National Contingency Plan, 40
C.F.R. Part 300;
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3. Recovery of costs that will be incurred by EPA in
connection with such studies and remedial work; and
4. Such other relief as this Court finds appropriate.
C. In accordance with Section 12l(f)(l)(F) of CERCLA, 42
u.s.c. § 962l(f)(l)(F), EPA notified the State of North Carolina
on October 23, 1990 of negotiations with Defendants regarding
the implementation of the Remedial Design and Remedial Action
for the Site.
D. In accordance with Section 122(j)(l) of CERCLA, 42
U.S.C. § 9622(j)(l), EPA notified the Department of Interior,
Fish and Wildlife Service, on October 23, 1990 and the State of
North Carolina Department of Natural Resources (Trustees) on
October 23, 1990 of negotiations with Defendants regarding the
release of hazardous substances that may have resulted in injury
to the natural resources under their trusteeship, and EPA has
encouraged the Trustees to participate in the negotiation of
this Consent Decree.
E. The Defendants that entered this Consent Decree
( "Settling Defendants'.') do not admit any liability to Plaintiff
arising out of the transactions or occurrences alleged in the
Complaint.
F. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605,
EPA included the JADCO/Hughes Superfund Site for listing on the
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National Priorities List, by publication in the Federal Register
in October of 1986.
G. In response to a release or threat of a release of a
hazardous substance at or from the Site, a Remedial
Investigation and Feasibility Study was commenced and completed
for the Site pursuant to 40 C.F.R. Part 300.68.
H. In July 1990, pursuant to Section 117 of CERCLA, 42
u.s.c. § 9617, EPA published a notice and brief analysis of the
proposed plan for remedial action, made this plan available to
the public, and provided opportunity for public comment.
I. The remedial action plan is embodied in a Record of
Decision, executed on September 27, 1990, which was published
and made available to the public on [DATE]. The State had a
reasonable opportunity to review and comment on the ROD and the
State concurred in September 1990.
J. In accordance with Section 121(d)(l) of CERCLA, 42
u.s.c. § 962l(d)(l), EPA and Settling Defendants agree that the
final Remedial Action Work Plan adopted by EPA and embodied
herein will attain a degree of cleanup of waste materials,
hazardous substances, pollutants and contaminants released at
the Site and control of further releases which at a minimum
assures protection of human health and the environment at the
Site.
K. The Parties recognize, and the Court by entering this
Consent Decree finds, that implementation of this Consent Decree
will expedite the remedial work at the Site, will avoid
prolonged and complicated litigation between the Parties, and
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that entry of this Consent Decree is therefore in the public
interest.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED:
II. JURISDICTION
This Court has jurisdiction over the subject matter of these
actions pursuant to 28 U.S.C. §§ 1311, 1345; 42 U.S.C. §§ 9606,
9607, and 9613(b). This Court also has personal jurisdiction
over the Settling Defendants .. For purposes of this Consent
Decree and the underlying complaint, Settling Defendants waive
all objections and defenses they have to jurisdiction of the
Court or to venue in this District. The Complaint states claims
against the Settling Defendants upon which relief may be
granted. Settling Defendants shall not challenge this Court's
jurisdiction to enter and enforce this Consent Decree.
III. PARTIES BOUND
This Consent Decree applies to and is binding upon the
undersigned Parties and their directors, officers, employees,
agents, successors, assigns and contractors. The Settling
Defendants shall provide a copy of this Consent Decree to all
contractors and subcontractors hired to perform the Work and to
each person representing any Settling Defendant with respect to
the Site or the Work and shall condition all contracts and
subcontracts entered into hereunder upon performance of the Work
in accordance with the terms of this Consent Decree. Settling
Defendants shall nevertheless be responsible for ensuring that
their contractors and subcontractors perform the Work
contemplated herein in accordance with this Consent Decree.
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With regard to the activities undertaken pursuant to this
Consent Decree, each contractor and subcontractor shall be
deemed to be related by contract to the Settling Defendants
within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C.
§ 9607(b)(3). Thus, as to acts or omissions of contractors, the
Settling Defendants shall not assert a defense based upon CERCLA
Section 107(b)(3), 42 U.S.C. § 9607(b)(3).
IV. DEFINITIONS
Unless noted to the contrary, the terms of this Consent
Decree shall have the meaning assigned to those terms pursuant
to CERCLA. Whenever the terms listed below are used in this
Consent Decree and the Exhibits and Appendices attached hereto,
the following definitions shall apply:
A. "CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. § 9601 et seq.
B. "Day" shall mean a calendar day unless expressly stated
to be a working day. "Working day" shall mean a day other than
a Saturday, Sunday, or federal holiday. In computing any period
of time under this Consent Decree, where the last day would fall
on a Saturday, Sunday, or federal holiday, the period shall run
until the end of the next working day.
C. "EPA" shall mean the United States Environmental
Protection Agency.
D. "Hazardous Substance" shall mean any substance meeting
the definition provided in Section 101(14) of CERCLA, 42 u.s.c.
§ 9601(14).
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E. "National Contingency Plan" or "NCP" shall mean the
National Oil and Hazardous Substances Pollution Contingency Plan
promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605,
codified at 40 C.F.R. Part 300, including any amendments
thereto.
F. "Operation and Maintenance" shall mean all activities
required by the ROD, the Scope of Work, and the Final Operation
and Maintenance Plan developed by Settling Defendants and
approved by EPA pursuant to this Consent Decree, including any
additional activities required by Sections VIII and IX hereof.
G. "Paragraph" shall mean a portion of this Consent Decree
identified by an Arabic numeral.
H. "Parties" shall mean Plaintiff and Settling
Defendant ( s) .
I. "Plaintiff" shall mean the United States.
J. "Pollutant or Contaminant" shall mean any substance
defined in Section 101(33) of CERCLA, 42 U.S.C. § 9601(33).
K. "Record of Decision" or "ROD" shall mean the EPA Record
of Decision relating to the Site which was signed on September
19, 1990 by the Regional Administrator, EPA Region IV, and all
attachments thereto. The ROD is attached as Appendix 1 and
incorporated herein by reference.
L. "Remedial Action" shall mean all property acquisition,
excavation, transportation, construction, treatment or other
similar activities required by the ROD, the Scope of Work, and
the Remedial Action Work Plan developed by Settling Defendants
and approved by EPA pursuant to this Consent Decree, including
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any additional activities required by Sections VIII and IX
hereof.
M. "Remedial Design" shall mean all studies,
investigations or surveys conducted and plans and specifications
prepared that are necessary to implement the Remedial Action and
Operation and Maintenance activities required by the ROD, the
Scope of Work, and the Remedial Design Work Plan developed by
Settling Defendant(s) and approved by EPA pursuant to this
Consent Decree, including any additional activities required by
Sections VIII and IX hereof.
N. "Response Costs" shall mean any costs, including
indirect costs, incurred by Plaintiff pursuant to 42 u.s.c.
§ 9601 et seq.
O. "Scope of Work" or "SOW" shall mean the scope of work
for implementation of the Remedial Design, Remedial Action, and
Operation and Maintenance work at the Site, as set forth in
Appendix 2, attached hereto and incorporated herein by
reference.
P. "Section" shall mean a portion of this Consent Decree
identified by a Roman numeral and including one or more
paragraphs.
Q. "Settling Defendant(s)" shall mean (RESERVED].
R. "Site" shall mean the JADCO/Hughes Superfund site,
encompassing approximately six acres, located on Cason Street,
Belmont, Gaston County, North Carolina, as described in the
Record of Decision and depicted on the map attached to the ROD
as Appendix 3. The Site consists of the area located within the
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property boundary line depicted on figure 1.1. Notwithstanding
the Site boundaries depicted on Appendix 3 and figure 1.1, the
Site includes all areas to which Waste Materials released at the
Site have migrated and all areas in proximity to the
contamination that are necessary for implementation of the Work.
S. "State" shall mean the State of North Carolina.
T. "SWDA" shall mean the Solid Waste Disposal Act, as
amended, 42 U.S.C. §§ 6901 et seq.
U. "United States" shall mean the United States of
America, including the Department of Justice and United States
Environmental Protection Agency.
V. "Waste Material" shall mean ( 1) any substance meeting
the definition provided in 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); and (3) any "hazardous
waste" under Section 1004(5) of SWDA, 42 U.S.C. § 6903(5).
W. "Work" shall mean all activities required by the
Consent Decree, including Remedial Design, Remedial Action, and
Operation and Maintenance, in accordance with Section VII
hereof, and any schedules or plans required to be submitted
pursuant thereto, including any additional work required under
Sections VII, VIII, IX, X, or XVII hereof.
V. GENERAL PROVISIONS
A. Objectives of the Parties
The objectives of the Parties in entering into this
Consent Decree are to protect public health, welfare, and the
environment from releases or threatened releases of Waste
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Materials from the Site by the investigation, development,
design, and implementation of remedial actions and monitoring
programs by the Settling Defendants.
B. Effect of Settlement
The execution of this Consent Decree is not an
admission of liability with respect to any issue dealt with in
this Consent Decree, nor is it an admission or denial of the
factual allegations set out in the Complaint.
C. Commitments by Settling Defendants
1. Settling Defendants shall finance and perform all
Work at the Site, in accordance with this Consent Decree,
including the SOW and all standards, specifications, and
schedules set forth therein or developed thereunder, and in a
manner consistent with the ROD. Settling Defendants shall also
reimburse Plaintiff for past Response Costs, oversight Response
Costs and future Response Costs as provided herein.
2. The obligations of Settling Defendants to finance
and perform the Work and to reimburse Plaintiff for past
Response Costs, oversight Response Costs, and future Response
Costs under this Consent Decree are joint and several. In the
event of the insolvency or other failure of any one or more
Settling Defendants to implement the requirements of this
Consent Decree, the remaining Settling Defendants shall complete
all such requirements.
3. Settling Defendants shall assume any and all
liability arising from or relating to their acts or omissions in
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the performance of the Work or their failure to perform fully or
complete the requirements of this Consent Decree.
D. Permits and Approvals
1. Pursuant to Section 121(d) of CERCLA, 42 U.S.C.
S 9621(d), all activities undertaken by the Settling Defendants
pursuant to this Consent Decree shall be performed in accordance
with applicable or relevant and appropriate requirements.
Plaintiff has determined that the obligations and procedures
authorized under this Consent Decree are consistent with the
authority of Plaintiff under applicable law to establish
appropriate remedial action for the Site.
2. Except as provided in Section 121(e) of CERCLA, 42
u.s.c. S 9621(e), and the NCP, no permit shall be required for
any portion of the Work conducted entirely on the Site. Where
any portion of the Work requires a federal, state, or local
permit or approval under CERCLA and the NCP, Settling Defendants
shall submit timely applications and requests for any such
permits and approvals to the appropriate agency.
3. Settling Defendants shall include in all contracts
or subcontracts entered into for Work required under this
Consent Decree provisions stating that such contractors or
subcontractors, including their agents and employees, shall
perform all activities required by such contracts or
subcontracts in compliance with all applicable laws and
regulations. Settling Defendants shall provide a certification
to Plaintiff that such provision has been included in its
contracts and subcontracts, within fifteen (15) days of final
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execution of contracts for the Remedial Design, Remedial Action
and Oversight and Maintenance work.
4. This Consent Decree is not, and shall not be
construed to be, a permit issued pursuant to any Federal or
state statute or regulation.
E. State Involvement
Pursuant to Section 121(f) of CERCLA, 42 U.S.C.
§ 9621(f), the State shall be provided a reasonable opportunity
for review and comment on each of the following: the Remedial
Design and other technical data and reports relating to
implementation of the remedy including: the RD Work Plan, the
Preliminary Design, the Prefinal Design, the RA Work Plan, the
Construction Management Plan, and Operation and Maintenance
Plan.
F. Conveyance of the Site
1. Within thirty (30) days of approval by the Court of
this Consent Decree, Settling Defendants of the Site shall
record a copy of this Consent Decree with the Registry of Deeds,
Gaston County, State of North Carolina and advise EPA in writing
that the task has been accomplished. Thereafter, each deed,
title, or other instrument of conveyance for property included
in the Site shall contain a notice stating that the property is
subject to this Consent Decree and shall reference the recorded
location of the Consent Decree and any restrictions applicable
to the property under this Consent Decree.
2. The Site as described herein may be freely alienated
provided that at least sixty (60) days prior to the date of such
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alienation, Settling Defendants notify Plaintiff of such
proposed alienation, the name of the grantee, a copy of the
proposed contract between the grantor and grantee, and a
description of Settling Defendants' obligations under this
Consent Decree, if any, to be performed by such grantee. In the
event of such alienation, all of Settling Defendants'
obligations pursuant to this Consent Decree shall continue to be
met by Settling Defendants and, subject to approval by
Plaintiff, the grantee.
3. The obligations of Settling Defendants who own any
interest in property included in the Site, with respect to the
provision of access under Section XI and the implementation of
institutional controls as provided in the ROD and SOW, shall run
with the land and shall be binding upon any and all such
Settling Defendants and any and all persons who subsequently
acquire any such interest or portion thereof (hereinafter
"Successors-in-Title"). Within ten (10) days after the entry
of this Consent Decree, Settling Defendants who own any interest
in property included in the Site shall record at the Registry of
Deeds, or other office where land ownership and transfer
records are maintained for the property, a notice of obligation
to provide access and related covenants and advise EPA in
writing that this task has been accomplished. Each subsequent
deed to any such property included in the Site shall reference
the recorded location of such notice and covenants applicable to
the property. In addition, each such Settling Defendant shall
provide for conveyancing and recording of easements for access
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to such property to Plaintiff for purposes of monitoring and
implementation of the activities required under this Consent
Decree. The granting of such easements pursuant to this
paragraph shall not operate to make the Plaintiff an owner or
operator of the Site for purposes of liability under any
environmental statute administered by EPA.
4. Settling Defendants that own an interest in property
included in the Site and Successors-in-Title shall, within
thirty (30) days prior to the conveyance of any such interest,
give written notice of this Consent Decree to the grantee and
written notice to EPA of the proposed conveyance, the name and
address of the grantee, and the date on which notice of the
Consent Decree was given to the grantee. In the event of any
such conveyance, the Settling Defendants' obligations under this
Consent Decree shall continue to be met by all Settling
Defendants and, subject to approval by Plaintiff, by the
grantee.
VI. REMEDIAL PROJECT MANAGER/PROJECT COORDINATORS
A. Within fifteen (15) calendar days of the lodging of
this Consent Decree, Settling Defendants and EPA shall notify
each other, in writing, of the name, address and telephone
number of Settling Defendants' designated Project Coordinator
and Alternate Project Coordinator, and the EPA Project
Coordinator and Alternate Project Coordinator who shall be a
Remedial Project Manager or On-Scene Coordinator (RPM/OSC,
respectively). The Settling Defendants' Project Coordinator
shall have primary responsibility for implementation of the Work
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at the Site. If a Project Coordinator initially designated is
changed, the identity of the successor shall be given to the
other Parties within five (5) working days before the change.
B. Plaintiff may designate other representatives,
including Federal and state employees, and Federal and state
contractors and consultants, to observe and monitor the progress
of any activity undertaken pursuant to this Consent Decree. The
EPA Project Coordinator shall have the authority lawfully vested
in an RPM/OSC by the National Contingency Plan, 40 C.F.R. Part
300. This includes the authority to halt, conduct, or direct
any work required by this Consent Decree and to take any
necessary response action when he or she determines that
conditions at the Site may present an imminent and substantial
endangerment to public health or welfare or the environment.
c. The absence of the EPA Project Coordinator from the
Site shall not be cause for stoppage or delay of work.
VII. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS
A. All aspects of the Work to be performed by Settling
Defendants pursuant to this Consent Decree shall be under the
direction and supervision of a qualified contractor
("Supervising Contractor") who shall be a qualified professional
engineer or geologist with expertise in hazardous site cleanup,
the selection of which shall be subject to approval by EPA.
Within fifteen (15) days after the lodging of this Consent
Decree, Settling Defendants shall submit to EPA in writing, the
name, title, and qualifications of the Supervising Contractor
proposed to be used in carrying out the Work to be performed
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pursuant to this Consent Decree. EPA shall notify the Settling
Defendants of its approval or disapproval, in writing, within
twenty (20) calendar days of its receipt of this submittal by
the Settling Defendants.
If EPA disapproves of the selection of any Supervising
Contractor, Settling Defendants shall submit a list of
contractors to EPA within fifteen (15) calendar days of receipt
of EPA's disapproval of the contractor previously selected. EPA
shall, within twenty (20) calendar days of receipt of the list,
provide written notice of the contractors that it approves. The
Settling Defendants may at their election select any approved
contractor from that list and shall notify EPA of the name of
the contractor selected within fifteen (15) calendar days of
EPA's designation of approved contractors.
If, at any time thereafter, Settling Defendants propose
to change Supervising Contractors, Settling Defendants shall
give such notice to EPA and shall obtain approval from EPA
before the new Supervising Contractor performs any Work under
this Consent Decree.
B. Scope of Work
Appendix 2 to this Consent Decree provides a Scope of
Work (SOW) for the completion of Remedial Design and Remedial
Action and Operation and Maintenance work at the'Site. The
Scope of Work is incorporated into and made an enforceable part
of this Consent Decree.
C. Remedial Design
1. In order to expedite the design of the Remedial
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Action at the Site, Settling Defendants agree to commence and
perform Remedial Design work as described herein and in the SOW
as a contractual obligation effective upon the lodging of this
Consent Decree with the Court. Settling Defendants shall
perform such Remedial Design work regardless of whether this
Consent Decree is entered by the Court; provided, however, that
Settling Defendants shall not be obligated to reimburse any
costs incurred by EPA for oversight of design activities unless
and until this Consent Decree has been entered; and provided
further that all such costs incurred by EPA prior to the entry
of the Consent Decree shall be reimbursed after entry in
accordance with Section XVIII.
2. Within thirty (30) days of Supervising Contractor
approval by EPA, Settling Defendants shall submit for review,
modification and/or approval by EPA, a work plan for the design
of the Remedial Action at the Site (Remedial Design Work Plan or
"RD Work Plan"). The RD Work Plan shall be developed in
accordance with the SOW and be consistent with the ROD, EPA
Superfund Remedial Design and Remedial Action Guidance, and any
additional guidance documents identified by EPA. As approved by
EPA, the RD Work Plan shall be incorporated into and become
enforceable under this Consent Decree.
3. The RD Work Plan submittal shall include, but not be
limited to, a schedule for submittal of the following project
plans: (1) a Sampling and Analysis Plan which includes a Field
Sampling and Analysis Plan and a Quality Assurance Project Plan;
(2) a Health and Safety Plan which includes a Contingency Plan;
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(3) a State and Local Permitting Plan; and (4) a Draft Operation
and Maintenance Plan. The RD Work Plan shall also include a
schedule for implementation of the Remedial Design tasks
identified in the SOW, submittal of Remedial Design reports, and
schedule for the development of a RA Work Plan, as defined
below.
4. Upon approval of the RD Work Plan by EPA, Settling
Defendants shall implement the RD Work Plan in accordance with
the schedule therein. Unless otherwise directed by EPA,
Settling Defendants shall not commence field activities until
approval by EPA of the RD Work Plan .
D. Remedial Action
1. Concurrent with submittal of the draft final RD Work
Plan, Settling Defendants shall submit for review, modification,
and/or approval by EPA, a work plan for the performance of the
remedial action at the Site ("Remedial Action Work Plan" or "RA
Work Plan"). The RA Work Plan shall be developed in accordance
with the SOW and be consistent with the ROD, EPA Superfund
Remedial Action Guidance and any additional guidance documents
identified by EPA. As approved by EPA, the RA Work Plan shall
be incorporated into and become enforceable under this Consent
Decree.
2. The RA Work Plan shall include, but not be limited
to, the following: 1) a Sampling and Analysis Plan which
includes a Field Sampling and Analysis Plan and a Quality
Assurance Project Plan; (2) a Health and Safety Plan which
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includes a Contingency Plan;(3) a State and Local Permitting
Plan; and (4) a Final Operation and Maintenance Plan. The RA
Work Plan shall also include a schedule for implementation of
all Remedial Action tasks identified in the SOW and submittal of
Remedial Action reports.
3. Upon approval by EPA of the RA Work Plan and all
Remedial Design documents, Settling Defendants shall implement
the RA Work Plan in accordance with the schedules therein.
Unless otherwise directed by EPA, Settling Defendants shall not
commence field activities until approval by EPA of the RA Work
Plan.
E. Cleanup Goals
The Work performed by Settling Defendants pursuant to
this Consent Decree shall achieve the cleanup goals detailed on
pages 54 through 64 of the ROD.
F. Warranties
The Settling Defendants acknowledge and agree that
nothing in this Consent Decree, the SOW, or the RD or RA Work
Plans to be developed constitutes or will constitute a warranty
or representation of any kind by Plaintiff that compliance with
this Consent Decree will achieve the cleanup goals set forth in
the ROD and that such compliance shall not foreclose Plaintiff
from seeking performance of all terms and conditions of this
Consent Decree, including the applicable cleanup goals.
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VIII. U.S. EPA PERIODIC REVIEW TO ASSURE PROTECTION OF
HUMAN HEALTH AND ENVIRONMENT
A. To the extent required by Section 121(c) of CERCLA, 42
U.S.C. § 9621(c), and any applicable regulations, EPA shall
review the Remedial Action at the Site at least every five (5)
years after the entry of this Consent Decree to assure that
human health and the environment are being protected by the Work
implemented pursuant to this Consent Decree. Prior to
Certification of Completion of the Work pursuant to Section XVI,
Settling Defendants shall conduct the requisite studies,
investigations, or other response actions as determined
necessary by EPA in order to permit EPA to conduct the review of
the Site required by Section 121(c) of CERCLA, 42 U.S.C.
§ 962l(c). If, upon such review, EPA determines prior to the
Certification of the Completion of the Work pursuant to Section
XVI that further response action in accordance with Section 104
or 106 of CERCLA, 42 u.s.c. §§ 9604 or 9604, is appropriate at
the Site, Settling Defendants shall implement such action. Any
dispute regarding the necessity for or scope of such further
response action shall be subject to judicial review pursuant to
the dispute resolution provisions in Section XXI hereof to the
extent permitted by, and in accordance with, Section 113 of
CERCLA, 42 U.S.C. § 9613.
B. Settling Defendants and the public shall be provided
with an opportunity to confer with EPA on any additional
activities proposed by EPA during the five (5)-year review
process and to submit written comments for the record during the
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public comment period. After the period for submission of
written comments is closed, the Regional Administrator, EPA
Region IV, shall in writing, determine if additional activities
are appropriate.
IX. ADDITIONAL WORK
A. In the event that EPA or the Settling Defendants
determine that additional work, including additional work
identified during the CERCLA Section 121(c) review process, is
necessary to meet the cleanup goals set forth in the ROD or to
protect human health or the environment, notification of such
additional work will be provided to the Project Coordinator for
the other party.
B. Any additional work determined to be necessary by
Settling Defendants is subject to approval by EPA and shall be
completed by Settling Defendants in accordance with submittals
approved by EPA pursuant to Section XIII.
C. Any additional work determined to be necessary by EPA
shall be completed by Settling Defendants in accordance with the
submittals approved by EPA pursuant to Section XIII.
D. Unless otherwise stated by EPA, the Settling Defendants
shall submit, for approval by EPA, a work plan for the
additional work within thirty (30) days of receipt of notice by
EPA that additional work is necessary. The plan shall conform
to the requirements in Section VII as appropriate. Upon
approval pursuant to the procedures set forth in Section XIII,
Settling Defendants shall implement the plan for additional work
in accordance with the schedule contained therein.
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x. QUALITY ASSURANCE, SAMPLING AND DATA ANALYSIS
A. Settling Defendants shall use quality assurance,
quality control, and chain of custody procedures in accordance
with EPA's "Interim Guidelines and Specifications For Preparing
Quality Assurance Project Plan" (QAMS-005/80) and the "EPA
Region IV Engineering Support Branch Standard Operating
Procedures and Quality Assurance Manual" (U.S. EPA Region IV,
Environmental Services Division, April 1, 1986) and subsequent
amendments to such guidelines. Prior to the commencement of any
monitoring project under this Consent Decree, Settling
Defendants shall submit for review, modification and/or approval
by EPA, a Quality Assurance Project Plan ("QAPP") that is
consistent with applicable guidelines. Sampling data generated
consistent with the QAPP(s) shall be admissible as evidence,
without objection, in any proceeding under Section XXI of this
Consent Decree. Settling Defendants shall assure that EPA
personnel or authorized representatives are allowed access to
any laboratory utilized by Settling Defendants in implementing
this Consent Decree.
B. Settling Defendants shall make available to EPA the
results of all sampling and/or tests or other data generated by
Settling Defendants with respect to the implementation of this
Consent Decree, and shall submit these results in monthly
progress reports as described in Section XII of this Consent
Decree.
C. At the request of EPA, Settling Defendants shall allow
split or duplicate samples to be taken by EPA, and/or their
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authorized representatives, of any samples collected by Settling
Defendants pursuant to the implementation of this Consent
Decree. Settling Defendants shall notify EPA not less than
fourteen (14) days in advance of any sample collection
activity. In addition, EPA shall have the right to take any
additional samples that EPA deems necessary.
D. Settling Defendants shall ensure that the
laboratory(ies) utilized by Settling Defendants for analyses
participates 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. In addition, EPA may
require Settling Defendants to submit data packages equivalent
to those generated in the EPA Contract Laboratory Program (CLP)
and may require laboratory analysis by Settling Defendants of
performance samples (blank and/or spike samples) in sufficient
number to determine the capabilities of the laboratory.
E. Notwithstanding any provision of this Consent Decree,
Plaintiff hereby retains all of its information gathering,
inspection and enforcement authorities and rights under CERCLA,
RCRA, and any other applicable statute or regulation.
XI. ACCESS
A. From the date of lodging of this Consent Decree until
EPA issues the Certification of Completion of the Work pursuant
to Section XVI, Plaintiff and its representatives, including EPA
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and its contractors, shall have access at all times to the Site
and any property to which access is required for the
implementation of this Consent Decree, or to conduct actions
authorized under CERCLA to the extent access to the property is
controlled by or available to Settling Defendants, for the
purposes of conducting any activity authorized by or related to
this Consent Decree, including, but not limited to:
1. Monitoring the Work or any other activities taking
place on the property;
2. Verifying any data or information submitted to
Plaintiff;
3. Conducting investigations relating to contamination
at or near the Site;
4. Obtaining samples;
5. Assessing the need for or planning and implementing
additional remedial or response actions at or near the Site;
6. Using a camera, sound recording, or other
documentary type of equipment; and
7. Inspecting and copying records, operating logs,
contracts, or other documents required to assess Settling
Defendants' compliance with this Consent Decree.
B. To the extent that the Site or any other area where
Work is to be performed under this Consent Decree is owned or
controlled by persons other than Settling Defendants, Settling
Defendants shall secure from such persons access for Settling
Defendants, as well as for EPA and authorized representatives or
agents of EPA, as necessary to effectuate this Consent Decree.
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If access is not obtained within thirty (30) days of the date of
entry of this Consent Decree, Settling Defendants shall promptly
notify Plaintiff in writing. Plaintiff may thereafter assist
Settling Defendants in obtaining access. Settling Defendants
shall, in accordance with Section XVIII, herein, reimburse
Plaintiff for all costs incurred by it in obtaining access,
including but not limited to, attorneys' fees and the amount of
just compensation and costs incurred by Plaintiff in obtaining
access.
C. Notwithstanding any provision of this Consent Decree,
Plaintiff retains all of its access authorities and rights under
CERCLA, RCRA and any other applicable statute or regulations.
XII. REPORTING REQUIREMENTS
A. Settling Defendants shall submit to EPA and the State
written monthly progress reports which: (1) describe the actions
which have been taken toward achieving compliance with this
Consent Decree during the previous month; (2) include all
results of sampling and tests and all other data received by
Settling Defendants during the course of the Work; (3) include
all plans, reports, and deliverables required by this Consent
Decree completed during the previous month; (4) describe all
actions, including data collection and implementation of work
plans, which are scheduled for the next month, and provide other
information relating to the progress of the Work as deemed
necessary by EPA; including but not limited to, critical path
diagrams, Gantt charts and Pert charts; and (5) include
information regarding percentage of completion, unresolved
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delays encountered or anticipated, that may affect the future
schedule for implementation of the Scope of Work and/or RD or RA
Work Plans, and a description of efforts made to mitigate those
delays or anticipated delays. These progress reports are to be
submitted to EPA and the State by the fifth (5th) day of every
month following the effective date of this Consent Decree until
Certification of Completion of the Work pursuant to Section
XVI. In addition, EPA may request periodic briefings by
Settling Defendants to discuss the progress of the Work.
B. Upon the occurrence of any event during performance of
the Work which, pursuant to Section 103 of CERCLA, 42 U.S.C.
§ 9603, requires reporting to the National Response Center, the
Settling Defendants shall promptly orally notify the EPA Project
Coordinator, or in the event of the unavailability of the EPA
Project Coordinator, the Superfund Emergency Response and
Removal Branch, Region IV, United States Environmental
Protection Agency, in addition to the reporting required by
Section 103 of CERCLA, 42 u.s.c. § 9603. Within ten (10) days
of the onset of such an event, the Settling Defendants shall
furnish to Plaintiff a written report setting forth the events
which occurred and the measures taken, and to be taken, in
response thereto. Within thirty (30) days of the conclusion of
such an event, the Settling Defendants shall submit a report
setting forth all actions taken.
C. Settling Defendants shall submit each year, within
thirty (30) days of the anniversary of the entry of the Consent
Decree, a summary report to the Court and the Parties setting
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forth the status of the Work, which shall at a minimum include a
statement of major milestones accomplished in the preceding
year, a statement of tasks remaining to be accomplished, and
providing a schedule for implementation of the remaining Work.
XIII. SUBMISSIONS REQUIRING AGENCY APPROVAL
A. Upon receipt of any plan, report or other item which is
required to be submitted for approval pursuant to this Consent
Decree, EPA shall either: (1) approve the submission; or (2)
disapprove the submission, notifying Settling Defendants of
deficiencies. If such submission is disapproved, EPA shall
either (1) notify the Settling Defendants that EPA will modify
the submission to correct the deficiencies; or (2) direct the
Settling Defendants to modify the submission to correct the
deficiencies.
B. In the event of approval or EPA modification, Settling
Defendants shall proceed to take any action required by the
plan, report, or other item, as approved or modified.
C. Upon receipt of a notice of disapproval and
notification directing modification, Settling Defendants shall,
within thirty (30) days, correct the deficiencies and resubmit
the plan, report, or other item for approval. Notwithstanding
the notice of disapproval, Settling Defendants shall proceed to
take any action required by any nondeficient portion of the
submission.
D. If, upon resubmission, the plan, report, or item is not
approved by EPA, Settling Defendants shall be deemed to be in
violation of this Consent Decree and stipulated penalties shall
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begin to accrue pursuant to Section XXII of this Consent Decree.
E. The provisions of this Consent Decree shall govern all
proceedings regarding the Work performed pursuant to this
Consent Decree. In the event of any inconsistency between this
Consent Decree and any required deliverable submitted by
Settling Defendants, the inconsistency will be resolved in favor
of this Consent Decree.
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK
A. Settling Defendants shall demonstrate their ability to
complete the Work and to pay all claims that arise from the
performance of the Work by obtaining, and presenting to EPA for
approval within thirty (30) days of the entry of this Consent
Decree, one of the following: (1) performance bond; (2) letter
of credit; (3) guarantee by a third party; or (4) internal
financial information sufficient to demonstrate to Plaintiff's
satisfaction that Settling Defendants have sufficient net assets
to complete the Work. Plaintiff will have ninety (90) days from
the receipt of the information or other assurance to make a
determination of the adequacy of the financial assurance and to
communicate that determination to Settling Defendants. If
Settling Defendants seek to demonstrate ability to complete the
Work by means of internal financial information, it shall
resubmit such information annually, on the anniversary of the
effective date of this Consent Decree. In the event that
Plaintiff determines that such internal financial information is
inadequate, Settling Defendants shall, within thirty (30) days
of receipt of written notice of Plaintiff's determination,
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obtain and present to EPA for approval one of the other three
forms of financial assurance listed above. Settling Defendants'
lack of ability to demonstrate financial ability to complete
Work shall not excuse performance of this Consent Decree or any
term thereof.
XV. TRUST FUND
A. Within ten (10) days of the entry of this Consent
Decree, Settling Defendants shall present to EPA for approval a
fully executed trust agreement (the "Trust Agreement")
establishing the JADCO/Hughes Superfund Site Trust Fund (the
"Trust Fund"). The Trust Agreement shall confer upon the
trustee all powers and authorities necessary to finance the
obligations of the Settling Defendants under this Consent
Decree. Within ten (10) days of approval of the Trust Agreement
by EPA or ten (10) days after entry of the Consent Decree,
whichever is later, Settling Defendants shall file a fully
executed Trust Agreement with the Court. Settling Defendants
shall make all necessary payments to fully fund the Trust
Agreement in the manner and according to the schedule set forth
in the Trust Agreement. Money paid into the Trust Fund by
Settling Defendants shall be used solely to pay proper and
necessary expenses of the Work to be conducted pursuant to this
Consent Decree, as well as payments required pursuant to Section
XVIII, including expenses of administering the Trust Agreement.
The Trust Fund may not be used to pay stipulated penalties
pursuant to Section XXII.
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B. Notwithstanding anything in the Trust Agreement,
Settling Defendants shall be responsible for compliance with
this Consent Decree. Settling Defendants shall provide EPA with
written notice at least ten (10) days in advance of any proposed
change in the Trust Agreement or the trustee.
C. The Trust Agreement shall provide that the trustee
will, within sixty (60) days of his/her appointment and every
ninety (90) days thereafter, submit to Settling Defendants and
EPA financial reports that include cash flow projections showing
the level of funds that will be necessary to pay for the
obligations of Settling Defendants under this Consent Decree for
the next one hundred eighty (180) days and the amount of money
currently in the Trust Fund. If the amount of money in the
Trust Fund is less than the amount projected in the trustee's
report to be needed for the next one hundred eighty (180) days,
Settling Defendants shall, within thirty (30) days of issuance
of the trustee's report, deposit into the Trust Fund amounts
sufficient to bring the level of the Trust Fund up to that
projected amount. Settling Defendants shall in any event make
payments to the Trust Fund when and to the extent necessary to
ensure the uninterrupted progress and timely completion of the
Work. Any money remaining in the Trust Fund upon certification
by Plaintiff that all of the Work has been satisfactorily
completed and that all Response Costs have been paid shall be
returned to Settling Defendants in accordance with the terms of
the Trust Agreement.
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XVI. CERTIFICATION OF COMPLETION
A. Within ninety (90) days after Settling Defendants
conclude that the Work has been fully performed, Settling
Defendants shall so notify EPA by submitting a certified written
report by a registered professional engineer or geologist
licensed to practice in the State of North Carolina stating
that all such activities have been completed in full
satisfaction of the requirements of this Consent Decree. If EPA
determines that the Work or any portion thereof has not been
completed in accordance with this Consent Decree, EPA shall
notify Settling Defendants in writing of the activities that
must be done to complete the Work and shall set forth in the
notice a schedule for performance of the activities. Settling
Defendants shall perform all Work described in the notice in
accordance with the specifications and schedules established
therein.
B. If EPA concludes, following the initial or any
subsequent notification of completion by Settling Defendants,
that the Work has been fully performed in accordance with this
Consent Decree, EPA shall so certify in writing to Settling
Defendants. This certification shall constitute the
"Certification of Completion of the Work" for purposes of this
Consent Decree, including Section XXIII (Covenants Not to Sue by
Plaintiff).
XVII. ENDANGERMENT AND FUTURE RESPONSE
A. In the event of any action or occurrence during the
performance of the Work which causes or threatens a release of a
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hazardous substance, pollutant or contaminant, or which may
present an imminent and substantial endangerment to public
health or welfare or the environment, Settling Defendants shall
immediately take all appropriate action to prevent, abate, or
minimize such release or endangerment, and shall immediately
notify the EPA Project Coordinator, or, if the EPA Project
Coordinator is unavailable, the EPA Superfund Emergency Response
and Removal Branch, Region IV. Settling Defendants shall take
such action in accordance with all applicable provisions of the
Health and Safety/Contingency Plan developed pursuant to the
SOW. In the event that Settling Defendants fail to take
appropriate response action as required by this Section, and the
EPA takes such action instead, Settling Defendants shall
reimburse all costs of the response action not inconsistent with
the NCP. Payment of such Response Costs shall be made in the
manner described in Section XVIII, paragraph B, as applicable,
within thirty (30) days of Settling Defendants' receipt of
demand for payment.
B. Nothing in the preceding paragraph shall be deemed to
limit the power and authority of Plaintiff or this Court to
take, direct, or order all appropriate action to protect human
health and the environment or to prevent, abate, or minimize an
actual or threatened release of hazardous substances on, at, or
from the Site.
XVIII. REIMBURSEMENT OF RESPONSE COSTS
A. Within fifteen (15) days of the entry of this Consent
Decree, Settling Defendants shall jointly and severally pay to
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EPA $ 384,427.00 in the form of a certified check or checks made
payable to "EPA Hazardous Substance Superfund," and referencing
CERCLA Site Account Number TJB04D6G8 and DOJ Case Number ___ _
, in reimbursement of costs incurred by Plaintiff prior to the
entry of this Consent Decree for removal or remedial actions
relating to the Site. The certified check(s) shall be forwarded
to the United States Environmental Protection Agency, Region IV,
ATTENTION: Superfund Accounting, P.O. Box 100142, Atlanta,
Georgia 30384. Copies of the check(s) and any transmittal
letter(s) shall be sent to the United States Department of
Justice and EPA pursuant to the notice provisions of Section
XXVII.
B. Settling Defendants shall, jointly and severally,
reimburse Plaintiff for all Response Costs including oversight
costs incurred by Plaintiff in connection with the Work and this
Consent Decree. Response Costs may include, but are not limited
to, costs incurred by Plaintiff in overseeing Settling
Defendants' implementation of the requirements of this Consent
Decree and activities performed by Plaintiff as part of the
Remedial Design, Remedial Action, and community relations,
including any costs incurred while obtaining access. Costs
shall include all direct and indirect costs, including, but not
limited to, time and travel costs of Plaintiff's personnel and
associated indirect costs, contractor costs, cooperative
agreement costs, compliance monitoring, including the collection
and analysis of split samples, inspection of Remedial Design and
Remedial Action activities, site visits, discussions regarding
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disputes that may arise as a result of this Consent Decree,
review and approval or disapproval of reports, and costs of
redoing any of Settling Defendants' tasks. Any necessary
summaries, including, but not limited to EPA's certified Agency
Financial Management System summary data (SPUR Reports), or such
other summary as certified by EPA, shall serve as basis for
payment demands. Plaintiff shall send Settling Defendants a
demand for payment of such costs on an annual basis, with the
demand to be made as soon as practicable after the anniversary
date of the entry of this Consent Decree. Payments shall be
made in the manner described in paragraphs A and B of this
Section, as applicable, within thirty (30) days of Settling
Defendants' receipt of each demand for payment.
C. Copies of checks paid pursuant to paragraph B of this
Section, and any accompanying transmittal letters, shall be sent
to Plaintiff as provided in Section XXVII. Additionally, copies
of check(s) paid pursuant to paragraphs A and B, and
accompanying transmittal letter(s), shall be sent to the office
of the United States Attorney, Western District of North
Carolina, Charlotte Division.
D. Settling Defendants may contest payment of any
oversight Response Cost or future Response Cost under paragraph
A of this Section if they determine that EPA has made an
accounting error or if they allege that a cost item that is
included represents costs incurred for efforts undertaken in a
manner that was inconsistent with the NCP. Such objection shall
be made in writing within thirty (30) days of receipt of the
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accounting and must be sent to Plaintiff pursuant to Section
XXVII. Any such objection shall specifically identify the
contested oversight Response Cost or future Response Cost and
the basis for the objection. In the event of an objection, the
Settling Defendants shall within the thirty (30)-day period
remit a certified or cashiers check for an amount covering any
non-contested oversight Response Costs or future Response Costs
to Plaintiff in the manner described in paragraphs A and C of
this Section. Disputes regarding contested amounts shall be
resolved pursuant to the dispute resolution procedures in
Section XXI. If EPA prevails in the dispute, within five (5)
days of the resolution of the dispute, the Settling Defendants
shall remit to Plaintiff funds equivalent to the amount of the
contested oversight Response Costs or future Response Costs,
plus interest on the unpaid amounts.
E. In the event that the payments required by paragraphs A
and Bare not timely made, Settling Defendants shall pay
interest on the unpaid balance at the rate established by the
United States Department of the Treasury under 31 u.s.c.
§ 3717. Settling Defendants shall, jointly and severally,
further pay (1) a handling charge of one percent (1%), to be
assessed at the end of each thirty (30)-day late period, and (2)
a six percent (6%) per annum penalty charge, to be assessed if
Settling Defendants have not paid in full within ninety (90)
days after the payment is due. Payments made under this
paragraph shall be in addition to such other remedies or
sanctions available to Plaintiff by virtue of Settling
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Defendants' failure to make timely payments under this Section.
XIX. INDEMNIFICATION AND INSURANCE
A. Plaintiff does not assume any liability for entering
into this Consent Decree or for designating Settling Defendants
as EPA's authorized representatives under Section 104(e) of
CERCLA. Settling Defendants shall indemnify and save and hold
harmless Plaintiff, its officials, agents, employees,
contractors, or representatives from any and all claims or
causes of action arising from or on account of acts or omissions
of Settling Defendants, their officers, employees, agents,
contractors, subcontractors, and any persons acting on their
behalf or under their control, in carrying out activities
pursuant to this Consent Decree. Plaintiff shall not be held
out as a party to any contract entered into by or on behalf of
Settling Defendants in carrying out activities pursuant to this
Consent Decree. Neither Settling Defendants nor any such
contractor shall be considered an agent of Plaintiff.
B. Settling Defendants waive, and shall indemnify and hold
harmless Plaintiffs with respect to any claims for damages or
reimbursement from Plaintiff or for set-off of any payments made
or to be made to Plaintiff, arising from or on account of any
contract, agreement, or arrangement between Settling Defendants
and any person for performance of Work on or relating to the
Site, including claims due to construction delays.
C. No later than ten (10) days prior to commencing any
Work, Settling Defendants shall secure, and shall maintain until
the fifth anniversary of the termination of this Consent Decree:
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(1) comprehensive general liability and automobile insurance
with limits of five (5) million dollars, combined single limit,
and (2) environmental impairment liability insurance with limits
of eight (8) million dollars, in each case naming Plaintiff as
the insured. In addition, for the duration of this Consent
Decree, Settling Defendants shall satisfy, or shall ensure that
their contractors or subcontractors satisfy, all applicable laws
and regulations regarding the provision of workmen's
compensation insurance for all persons performing the Work on
behalf of Settling Defendants in furtherance of this Consent
Decree. Prior to commencement of the Work under this Consent
Decree, Settling Defendants shall provide to EPA certificates of
such insurance and a copy of each insurance policy. If Settling
Defendants demonstrate by evidence satisfactory to EPA that any
contractor or subcontractor maintains insurance equivalent to
that described above, or insurance covering the same risks but
in a lesser amount, then, with respect to that contractor or
subcontractor, Settling Defendants need provide only that
portion of the insurance described above which is not maintained
by the contractor or subcontractor.
XX. FORCE MAJEURE
A. "Force Majeure" is defined for the purposes of this
Consent Decree as an event arising from causes entirely beyond
the control of Settling Defendants and of any entity controlled
by Settling Defendants, including their contractors and
subcontractors, which could not have been overcome by due
diligence, which delays or prevents the performance of any
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obligation under this Consent Decree. The requirement that the
Settling Defendants exercise "best efforts to fulfill the
obligation" includes using best efforts to anticipate any
potential force majeure event and best efforts to address the
effects of any potential force majeure event (1) as it is
occurring and (2) following the potential force majeure event.
such that the delay is minimized to the greatest extent
possible. Examples of events which may constitute force majeure
events include extraordinary weather events, natural disasters,
and national emergencies. Examples of events that are not force
majeure events include, but are not limited to, normal inclement
weather, increased costs or expenses of the Work to be performed
under this Consent Decree, the financial difficulty of Settling
Defendants to perform such Work, the failure of one or more of
Settling Defendants to satisfy their obligations under this
Consent Decree, acts or omissions not otherwise force majeure
attributable to Settling Defendants' contractors or
representatives, and the failure of Settling Defendants or
Settling Defendants' contractors or representatives to make
complete and timely application for any required approval or
permit.
B. When circumstances occur which may delay or prevent the
. completion of any phase of the Work or access to the Site or to
any property on which part of the Work is to be performed,
whether or not caused by a force majeure event, Settling
Defendants shall notify the EPA Project Coordinator orally of
the circumstances within two (2) Work days forty-eight (48)
hours of when Settling Defendants first knew or should have
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known that the event might cause delay. If the EPA Project
Coordinator is unavailable, Settling Defendants shall notify the
designated alternate or the Director of the Waste Management
Division, EPA Region IV. Within five (5) working days after
Settling Defendants first became aware of such circumstances,
Settling Defendants shall
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supply to Plaintiff in writing: (1) the reasons for the delay;
(2) the anticipated duration of the delay; (3) all actions taken
or to be taken to prevent or minimize the delay; (4) a schedule
for implementation of any measures to be taken to mitigate the
effect of the delay; and (5) a statement as to whether, in the
opinion of the Settling Defendants, such event may cause or
contribute to an endangerment to public health, welfare, or the
environment. Settling Defendants shall exercise best efforts to
avoid or minimize any delay and any effects of a delay. Failure
to comply with the above requirements shall preclude Settling
Defendants from t0t asserting any claim of force majeure.
C. If EPA agrees that a delay is or was caused by a force
majeure event, the time for performance of the obligations under
this Consent Decree that are directly affected by the force
majeure event shall be extended by agreement of the Parties,
pursuant to Section XXX, for a period of time not to exceed the
actual duration of the delay caused by the force majeure event.
An extension of the time for performance of the obligation
directly affected by the force majeure event shall not
necessarily justify an extension of time for performance of any
subsequent obligation.
D. If EPA does not agree that the delay or anticipated
delay has been or will be caused by a force majeure event, or
does not agree with Settling Defendants on the length of the
extension, EPA will notify the Settling Defendants in writing of
its decision within twenty (20) days. tKe The issue shall be
subject to the dispute resolution procedures set forth in
Section XXI of this Consent Decree. In any such proceeding, to
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qualify for a force majeure defense,
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Settling Defendants shall have the burden of proving by a
preponderance of the evidence that the delay or anticipated
delay has been or will be caused by a force majeure event, that
the duration of the delay was or will be warranted under the
circumstances, that best efforts were exercised to avoid and
mitigate the effects of the delay, and that Settling Defendants
complied with the requirements of paragraph B of this Section.
Should Settling Defendants carry this burden, the delay at issue
shall be deemed not to be a violation by Settling Defendants of
the affected obligation of this Consent Decree.
XXI. DISPUTE RESOLUTION
A. The dispute resolution procedures of this Section shall
be the exclusive mechanism to resolve disputes arising under or
with respect to this Consent Decree and shall apply to all
provisions of this Consent Decree.
B. Any dispute which arises under or with respect to this
Consent Decree shall in the first instance be the subject of
informal negotiations between the parties to the dispute. The
period for negotiations shall not ordinarily exceed thirty (30)
days from the time the dispute arises, unless it is extended by
agreement between Plaintiff and Settling Defendants. The
dispute shall be considered to have arisen when one party
notifies the other party in writing that there is a dispute.
The period for informal negotiations shall end when EPA provides
a written Statement of Position on the disputed matter to the
Settling Defendants.
C. In the event that the Parties cannot resolve a dispute
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by informal negotiations under the preceding paragraph, then the
Statement of Position advanced by EPA shall be considered
binding unless, within five (5) days after the receipt of EPA's
Statement of Position, Settling Defendants invoke the dispute
resolution procedures of this Section by giving written notice
to the United States Department of Justice and EPA. After
receiving such notice from Settling Defendants, EPA shall notify
Settling Defendants whether the dispute is to be resolved on the
administrative record under paragraph D of this Section. At its
nonreviewable option, EPA may determine that any dispute which
relates to the selection, extent, or adequacy of any aspect of
any response actions shall be resolved on an administrative
record. For the purposes of this paragraph, the adequacy of any
response action includes: (1) the adequacy or appropriateness of
plans, procedures to implement plans, or any other items
requiring approval by EPA under this Consent Decree; and (2) the
adequacy of response actions performed pursuant to this Consent
Decree.
D. If EPA elects, pursuant to paragraph C, to resolve a
dispute on an administrative record, the following procedures
shall apply:
1. The administrative record for the purposes of this
Section shall include the written notification of the dispute,
all Statements of Position, and any other materials submitted by
the Parties pursuant to paragraph C of this Section in support
of their positions.
2. Within ten (10) days after receiving notice from EPA
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that a dispute is subject to resolution on an administrative
record, Settling Defendants shall serve on EPA a written
Statement of Position on the matter in dispute, including any
factual data, analysis, or opinion supporting that position and
all supporting documentation relied upon. Within ten (10) days
after receipt of Settling Defendants' Statement of Position, EPA
may serve on Settling Defendants a supplemental Statement of
Position, including supporting documentation, in response to the
Settling Defendants' Statement of Position. No further
submittals by Settling Defendants shall be allowed except by
agreement of the Parties. In the event that these ten (10)-day
periods for exchange of Statements of Position may delay the
Work, they may be shortened by EPA upon notice to all Parties to
the dispute.
3. Upon review of the administrative, record, the
Director of the Waste Management Division, EPA Region IV, shall
issue a final decision resolving the dispute.
4. Any decision by EPA pursuant to the preceding
paragraph shall be reviewable by this Court, provided that a
Notice of Judicial Appeal is filed within ten (10) days from
receipt of EPA's decision.
E. If, pursuant to paragraph C of this Section, EPA
determines that a dispute should not be reviewed on an
administrative record, then the position on the dispute advanced
by EPA in its initial Statement of Position shall be considered
binding on all Parties unless, within ten (10) days after
receipt of EPA's determination that review will not be on an
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administrative record, Settling Defendants file a petition with
this Court setting forth the matter in dispute, the efforts made
by the Parties to resolve it, the relief requested, and the
schedule, if any, within which the dispute must be resolved to
ensure orderly implementation of this Consent Decree.
F. In proceedings on any dispute relating to the
selection, extent, or adequacy of any aspect of the Work,
Settling Defendants shall have the burden of demonstrating that
the position advanced by EPA is arbitrary and capricious or
otherwise not in accordance with law. With respect to disputes
for which an administrative record is developed pursuant to
paragraph D of this Section, judicial review of EPA's decision
shall be confined to the administrative record.
G. Nothing herein shall prevent Plaintiff from arguing
that the Court should apply the arbitrary and capricious
standard of review to disputes under this Consent Decree. In
proceedings on any dispute, Settling Defendants shall bear the
burden of proof.
XXII. STIPULATED PENALTIES
A. Settling Defendants shall be jointly and severally
liable for stipulated penalties in the amounts set forth in
paragraph H to Plaintiff for violations of this Consent Decree.
"Compliance" by Settling Defendants shall include completion of
any activity under this Consent Decree or any plan approved
under this Consent Decree in an acceptable manner and within the
specified time schedules established by and approved under this
Consent Decree.
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B. All penalties shall begin to accrue on the day that
complete performance is due or a violation occurs, and continue
to accrue through the final day of correction of the
noncompliance. Nothing herein shall prevent the simultaneous
accrual of separate penalties for separate violations of this
Consent Decree.
c. Following Plaintiff's determination that Settling
Defendants have failed to comply with the requirements of this
Consent Decree, Plaintiff shall give Settling Defendants written
notification of the same and describe the noncompliance. Said
notice shall also indicate the amount of penalties due.
D. All penalties owed to Plaintiff under this Section
shall be payable within thirty (30) days of receipt of the
notification of noncompliance, unless Settling Defendants invoke
the dispute resolution procedures under Section XXI. Penalties
shall accrue from the date of violation regardless of whether
Plaintiff has notified Settling Defendants of a violation.
Settling Defendants shall pay interest on the unpaid balance,
which shall begin to accrue at the end of the thirty (30)-day
period at the rate established by the United States Department
of Treasury under 31 u.s.c. § 3717. Settling Defendants shall
further pay a handling charge of one percent (1%), to be
assessed at the end of each thirty (30)-day late period, and a
six percent (6%) per annum penalty charge, to be assessed if the
penalty is not paid in full within ninety (90) days after it is
due. All payments under this Section shall be paid by certified
check made payable to "EPA Hazardous Substance Superfund," shall
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be mailed to Superfund Accounting, P.O. Box 100142, Atlanta,
Georgia 30384, and shall reference CERCLA Site Account Number
TJB04D6G8 and DOJ Case Number__________ Copies of the
transmittal letters shall be mailed to the United States
Department of Justice and EPA at the addresses listed in Section
XXVII.
E. Neither the filing of a petition to resolve a dispute
nor the payment of penalties shall alter in any way Settling
Defendants' obligation to complete the performance required
hereunder.
F. Settling Defendants may dispute Plaitiff's right to the
stated amount of penalties by invoking the dispute resolution
procedures under Section XXI herein. Penalties shall accrue but
need not be paid during the dispute resolution period. If a
disputed matter is submitted to the Court, the period of dispute
shall end upon the rendering of a decision by the Court
regardless of whether any party appeals such decision. If
Settling Defendants do not prevail upon resolution, Plaintiff
has the right to collect all penalties which accrued prior to
and during the period of dispute. If Settling Defendants
prevail upon resolution, no penalties shall be paid.
G. If Settling Defendants fail to pay stipulated
penalties, Plaintiff may institute proceedings to collect the
penalties, as well as late charges and interest. However,
nothing in this Section shall be construed as prohibiting,
altering, or in any way limiting the ability of Plaintiff to
seek any other remedies or sanctions available by virtue of
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Settling Defendants' violation of this Consent Decree or of the
statutes and regulations upon which it is based.
H. The following stipulated penalties shall be' payable per
violation per.day to Plaintiff for any noncompliance identified
in paragraph A, above:
Penalty Per Violation
per Day
$15,000
$25,000
$30,000
Period of Noncompliance
1st thru 14th day
15th thru 30th day
31st day and beyond
I. No payments made under this Section shall be tax deductible
for Federal tax purposes.
XXIII. COVENANTS NOT TO SUE BY PLAINTIFF
A. In consideration of the actions that will be performed and
the payments that will be made by the Settling Defendants under the
terms of the Consent Decree, Plaintiff covenants not to sue or to
take administrative action against Settling Defendants for Covered
Matters (as set forth below) with respect to all such liability,
except for any future liability relating to additional response
activities at the Site not identified in the ROD or the SOW and
except as specifically provi~ed in paragraphs Band C of this
Section. These covenants not to sue shall take effect upon the
receipt by EPA of the payments required by this Consent Decree under
Section XVIII. With respect to any such future liability, these
covenants not to sue shall take effect upon EPA issuance of the
Certification of Completion of the Work pursuant to Section XVI.
These covenants not to sue are conditioned upon complete and
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satisfactory performance by Settling Defendants of their obligations
under this Consent Decree. These covenants not to sue extend to
Settling Defendants and do not extend to any other person.
B. Except as provided in paragraphs C through E, Covered
Matters shall include any and all civil liability to Plaintiff for
causes of action arising under Sections 106 and 107(a) of CERCLA, 42
U.S.C. §§ 9606 and 9607(a), and for performance of the Work and for
recovery of Response Costs incurred by Plaintiff in connection with
the Site prior to the lodging of this Consent Decree.
c. Pre-Certification reservations
Notwithstanding any other provision of this Consent Decree,
Plaintiff reserves the right to institute proceedings in this action
or in a new action seeking to compel Settling Defendants (1) to
perform additional response actions at the Site or (2) to reimburse
Plaintiff for Response Costs if, prior to EPA issuance of the
Certification of Completion of the Work pursuant to Section XVI:
D.
(i) conditions at the Site, previously unknown to
Plaintiff, are discovered after the entry of
this Consent Decree; or
(ii) information is received, in whole or in part,
after the entry of this Consent Decree, and
the EPA Administrator or his delegate finds,
based on these previously unknown conditions
or this information together with any other
relevant information, that the Work is not
protective of human health and the
environment.
Post-Certification reservations
Notwithstanding any other provision of this Consent
Decree, Plaintiff reserves the right to institute proceedings in
this action or in a new action seeking to compel Settling
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Defendants (1) to perform additional response actions at the
Site or (2) to reimburse Plaintiff for Response Costs if,
subsequent to Certification of Completion of the Work pursuant
to Section XVI:
(i) conditions at the Site, previously unknown to
Plaintiff, are discovered after the
certification of completion, or
(ii) information is received, in whole or in part,
after the certification of completion, and
the EPA Administrator or his delegate finds,
based on these previously unknown conditions
or this information together with other
relevant information, that the Work is not
protective of human health and the
environment.
The above-mentioned reservation of right includes the right to
institute proceedings in this action or in a new action to seek
reimbursement of costs incurred as a result of actions
undertaken pursuant to Section 12l(c) of CERCLA, 42 U.S.C.
§ 9621(c).
E. For purposes of paragraph C, the information received
and the conditions known to Plaintiff shall include that
information and those conditions set forth in the Record of
Decision for the Site and the administrative record supporting
the Record of Decision. For purposes of paragraph D, the
information received by and the conditions known to Plaintiff
shall include that information and those conditions set forth in
the Record of Decision and any information received by Plaintiff
pursuant to the requirements of this Consent Decree.
F. General reservations of rights
The covenants not to sue set forth above do not pertain
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to any matters other than those expressly specified to be
Covered Matters. Plaintiff reserves, and this Consent Decree is
without prejudice to, all rights against Settling Defendants
with respect to all other matters, including but not limited to:
1. Claims based on a failure by Settling Defendants to
meet a requirement of this Consent Decree;
2. Liability arising from the past, present, or future
disposal, release, or threat of release of hazardous substances
outside of the Site and not attributable to the Site;
3. Liability for the disposal of any hazardous
substances taken from the Site;
4. Liability for damages for injury to, destruction of,
or loss of natural resources;
5. Any matter as to which Plaintiff is owed
indemnification under Section XVIII above;
6. Criminal liability;
7. Liability for violations of Federal law which occur
during implementation of the Remedial Action;
8. Oversight Response Costs and future Response Costs,
if incurred and not reimbursed to Plaintiff pursuant to Section
XVIII; and
9. Previously incurred costs of response above the
amounts reimbursed pursuant to Paragraph XVIII.
G. Notwithstanding any other provision of this Consent
Decree, Plaintiff retains all authority and reserves all rights
to take any and all response actions authorized by law.
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XXIV. COVENANTS BY SETTLING DEFENDANTS
Settling Defendants hereby covenant not to sue Plaintiff for
any claims related to or arising from any response action taken
with respect to the Site or this Consent Decree, including any
direct or indirect claim for reimbursement from the Hazardous
Substance Superfund established pursuant to Section 221 of
CERCLA, 42 U.S.C. § 9631. Nothing in this Consent Decree shall
be deemed to constitute preauthorization of a claim within the
meaning of Section 111 of CERCLA, 42 u.s.c. § 9611; or 40 C.F.R.
Part 300.25(d).
XXV. ACCESS TO INFORMATION
A, Settling Defendants shall provide to EPA, upon request,
all documents and information within its possession and/or
control or that of its contractors or agents relating to
activities at the Site or to the implementation of this Consent
Decree, including sampling, and analysis records, chain of
custody records, manifests, shipping logs, receipts, reports,
sample traffic routing, correspondence, or other documents or
information related to the Work undertaken pursuant to this
Consent Decree. Settling Defendants shall also make available
to EPA or its agents or representatives with knowledge of
relevant facts concerning the performance of the Work and such
documents and information as necessary for the purposes of
investigation, information gathering, or testimony.
B. Settling Defendants may assert business confidentiality
claims covering part or all of the documents or information
submitted to EPA under this Consent Decree to the extent
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permitted by and in accordance with Section 104(e)(7) of CERCLA,
42 U.S.C. § 9604(e)(7), and 40 C.F.R. Part 2.203(b). Such an
assertion will be adequately substantiated when the assertion is
made. Documents or information determined to be confidential by
EPA will be afforded the protection specified in 40 C.F.R. Part
2, Subpart B. If no claim of confidentiality accompanies
specific documents or information when they are submitted to
EPA, or if EPA has notified Settling Defendants that the
documents or information are not confidential under the
standards of Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e),
and 40 C.F.R. Part 2.203(b), the public may be given access to
such documents or information without further notice to Settling
Defendants.
c. No claim of confidentiality shall be made with respect
to any sampling or analytical data or any other documents or
information evidencing conditions at or around the Site.
D. The Parties waive any objection to the admissibility
into evidence (without waiving any objection as to weight) of
the results of any analyses of sampling conducted by or for them
at the Site or of other data gathered pursuant to this Consent
Decree that has been verified by the quality assurance/quality
control procedures established pursuant to Section X.
XXVI. RETENTION OF RECORDS
A. Until EPA issuance of the Certification of Completion
of the Work pursuant to Section XVI and termination of this
Consent Decree, Settling Defendants shall preserve, and shall
instruct their contractors and agents to preserve, all
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documents, records, and information of whatever kind, nature, or
description relating to the performance of the Work.
B. For six (6) years after EPA issuance of the
Certification of Completion of the Work pursuant to Section XVI,
the Settling Defendants shall preserve and retain all records
and documents now in their possession or control that relate in
any manner to the Site. After this document retention period,
Settling Defendants shall notify Plaintiff at least ninety (90)
calendar days prior to the destruction of any such records or
documents, and upon request by Plaintiff, Settling Defendants
shall relinquish custody of the records or documents to EPA.
Additionally, if Plaintiff requests all documents be preserved
for a longer period of time, Settling Defendants will comply
with the request.
XXVII. NOTICES AND SUBMISSIONS
A. Whenever, under the terms of this Consent Decree,
written notice is required to be given or a report or other
document is required to be sent by one party to another, it
shall be directed to the individuals and the addresses specified
below, unless those individuals or their successors give notice
of a change to the other Parties in writing. Written notice as
specified herein shall constitute complete satisfaction of any
written notice requirement of the Consent Decree with respect to
Plaintiff, the State, and the Settling Defendants, respectively.
B. Unless noted otherwise, where written notice is
required to be given or a report or other document is required
to be submitted, such notice shall be sent to:
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Plaintiff:
Barbara Benoy
Remedial Project Manager
Waste Management Division
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u. S. Environmental Protection Agency, Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
With copies to:
North Carolina Department of Natural Resources
Division of Environmental Management
P.O. Box 27687
Raleigh, North Carolina 27611
Copies of checks and payment transmittal letters:
Accounts Receivable Specialist
Financial Management Office
u. s. Environmental Protection Agency, Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
The Department of Justice
Chief, Environmental Enforcement Section
Land and Natural Resources Division
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
RE: DOJ # ______ _
Settling Defendants:
[RESERVED]
For Informational Purposes Only:
Reuben T. Bussey, Jr.
Assistant Regional Counsel
United States Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
XXVIII. EFFECTIVE AND TERMINATION DATES
A. The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court,
except as otherwise provided herein.
B. Upon notice by EPA to the Court that EPA has issued the
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Certification of Completion of the Work pursuant to Section XVI
and that Settling Defendants have satisfied their obligations
under Sections XVIII (Response Costs) and XXII (Stipulated
Penalties), this Consent Decree shall terminate upon the motion
of any party. Termination of this Consent Decree shall not
affect the Covenants Not to Sue (Sections XXIII and XXIV above),
including all reservations pertaining to those covenants, and
shall not affect any continuing obligation of Settling
Defendants under Sections VIII, XI, XII, XV, XIX, XXV and XXVI.
XXIX. RETENTION OF JURISDICTION
This Court will retain jurisdiction for the purpose of
enabling any of the Parties to apply to the Court at any time
for such further order, direction, and 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 resolve disputes in accordance with Section XXI
hereof.
XXX. MODIFICATION
No material modifications shall be made to this Consent
Decree without written notification to and written approval of
the Parties and the Court except as provided in Section XIII.
The notification required by this Section shall set forth the
nature of and reasons for the requested modification. No oral
modification of this Consent Decree shall be effective.
Modifications that do not materially alter the requirements of
this Consent Decree, such as minor schedule changes, may be made
upon the written consent of all Parties, which consent shall be
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filed with this Court. Nothing in this paragraph shall be
deemed to alter the Court's power to supervise or modify this
Consent Decree.
XXXI. COMMUNITY RELATIONS
Settling Defendants shall cooperate with EPA in providing
information regarding the Work to the public. As requested by
EPA, Settling Defendants shall participate in the preparation of
such information for dissemination to the public and in public
meetings which may be held or sponsored by EPA to explain
activities at or relating to the Site.
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
This Consent Decree shall be lodged with the Court for a
period of not less than thirty (30) days for public notice and
comment in accordance with Section 122(d)(2) of CERCLA, 42
U.S.C. S 9622(d)(2), and 28 C.F.R. Part 50.7. Plaintiff
reserves the right to withdraw or withhold its consent if the
comments regarding the Consent Decree disclose facts or
considerations which indicate that the Consent Decree is
inappropriate, improper, or inadequate. Settling Defendants
consent to the entry of this Consent Decree without further
notice.
XXXIII. SIGNATORIES
A. Each undersigned representative of a party to this
Consent Decree certifies that he or she is fully authorized to
enter into the terms and conditions of this Consent Decree and
to execute and legally bind such party to this document.
B. Settling Defendants shall identify, on the attached
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signature page, the name and address of an agent who is
authorized to accept service of process by mail on its behalf
with respect to all matters arising under or relating to this
Consent Decree. Settling Defendants hereby agree to accept
service in that manner and to waive the formal service
requirements set forth in Rule 4 of the Federal Rules of Civil
Procedure, including service of a summons, and any applicable
local rules of this Court.
SO ORDERED THIS DAY OF _______ , 19
United States District Judge
THE UNDERSIGNED PARTIES enter into this Consent Decree relating to
the Jadco-Hughes Superfund Site.
Date:
FOR THE UNITED STATES OF AMERICA
Richard B. Stewart
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[NAME]
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
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Date: __________ _
-56-
[NAME]
Assistant Administrator for
Office of Enforcement
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
Greer C. Tidwell
Regional Administrator
Region IV
U.S. Environmental Protection
Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Reuben T. Bussey, Jr.
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
FOR NATIONAL STARCH AND CHEMICAL
CORPORATION
Agent Authorized to Accept Service on Behalf of National Starch
and Chemical Corporation:
Name:
Title:
Address: