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HomeMy WebLinkAboutNCD981927502_20050330_Geigy Chemical Corporation_FRBCERLA C_Compliance Consent Orders 1988 - 2005-OCR•••••• Geigy Chemical Corporation Site Aberdeen, NC Comniittee Correspondence Mr. Jon K. Bomholm Remedial Project Manager USEP A Region IV March 30, 2005 ~ [? ~c·: ,~ .· ·-v~f -,_] ..... \I r. I , , , , ! .J!' ~--···-. -.... ' 'J •:}j APR 4700'i 1,_:1 SUP-~f-.~-~,--~-'.l--~ North Superfund Remedial Branch, 1 1th Floor 100 Alabama St., SW Atlanta, GA 30303-8960 RE: Geigy Chemical Corporation Site Aberdeen, North Carolina Assurance of Ability to Complete Work Dear Mr. Bornholm: Olin Corporation, on behalf of itself, Ciba Geigy Corporation, and Kaiser Aluminum & Chemical Corporation (the Companies) is providing assurance of ability to complete work in accordance with the Consent Decree for the referenced Site (Section XIV.43(e)). Attached is the appropriate documentation required to satisfy the requirements of 40 C.F .R. Part 264.143(f) as specified in the Consent Decree. Please call me at 423/336-4675 if you have any questions. Sincerely .-G?J!h-iv1 Raymona J. Horn for Olin Corporation Ciba Geigy Corporation and Kaiser Aluminum & Chemical Corporation Enclosures cc: Chief, Environmental Enforcement Section -letter only Director, Waste Management Division -letter only K. Hagen -letter only G.D.Luetscher -letter only H. W. Moats .1. W. Vinzant • Geigy Clte,nical Corporation Site Aberdeen, NC Committee Correspondence March 30, 2004 Mr. Jon K. Bornholm Remedial Project Manager USEP A Region IV North Superfund Remedial Branch, 11 th Floor 100 Alabama St., SW Atlanta, GA 30303-8960 RE: Geigy Chemical Corporation Site Aberdeen, North Carolina Assurance of Ability to Complete Work Dear Ms. Bennett: Olin Corporation, on behalf of itself, Ciba Geigy Corporation, and Kaiser Aluminum & Chemical Corporation (the Companies) is providing assurance of ability to complete work in accordance with the Consent Decree for the referenced Site (Section XIV.43(e)). Attached is the appropriate documentation required to satisfy the requirements of 40 C.F. R. Part 264.143(f) as specified in the Consent Decree. Please call me at 423/336-4675 if you have any questions. Sincerely .4j-~ Raymond J. Horn for Olin Corporation Ciba Geigy Corporation and Kaiser Aluminum & Chemical Corporation Enclosures cc: · Chief, Environmental Enforcement Section -letter only Director, Waste Management Division -letter only K. Hagen -letter only G.D.Luetscher -letter only H. W. Moats J. W. Vinzant • \ ' 1C: : I r. Geigy Chemical Corporation Site Aberdeen, NC Committee Correspondence APR 2 2003 Ms. Giezelle Bennett Remedial Project Manager USEP A Region IV North Superfund Remedial Branch, 11 th Floor 100 Alabama St., SW Atlanta, GA 30303-8960 RE: Geigy Chemical Corporation Site Aberdeen, North Carolina March 31, 2003 Assurance of Ability to Complete Work Dear Ms. Bennett: Olin Corporation, on behalf of itself, Ciba Geigy Corporation, and Kaiser Aluminum & Chemical Corporation (the Companies) is providing assurance of ability to complete work in accordance with the Consent Decree for the referenced Site (Section XIV.43(e)). 7( Attached is the appropriate documentation required to satisfy the requirements of 40 C.F.R. Part '(' 264.143(f) as specified in the Consent Decree. ' ~lease call me at 423/336-4675 if you have any questions. N. 0 \ "'-tt o.< <:...\/\-efu ' Sincerely --R/.~ Raymond J. Horn for Olin Corporation Ciba Geigy Corporation and Kaiser Aluminum & Chemical Corporation Enclosures cc: Chief, Environmental Enforcement Section -letter only Director, Waste Management Division -letter only R. McElveen -letter only G.D. Luetscher -letter on! y H. W. Moats J. W. Vinzant I • Geigy Che111ical Co1poration Site Aberdeen, NC , . Co11u11ittee Correspondence ·1: J) ~':~, \t:. ,, · ';; ' . March 21, 2002 . • : 1 MAR 2 8 2002 l· . ., Ms. Giezelle Bennett Remedial Project Manager USEP A Region IV North Superfund Remedial Branch, I I th Floor 100 Alabama St., SW Atlanta, GA 30303-8960 RE: Geigy Chemical Corporation Site Aberdeen, North Carolina Assurance of Ability to Complete Work Dear Ms. Bennett: I , Olin Corporation, on behalf of itself, Ciba Geigy Corporation, and Kaiser Aluminum & Chemical Corporation (the Companies) is providing assurance of ability to complete work in accordance with the Consent Decree for the referenced Site (Section XIV.43(e)). Attached is the appropriate documentation required to satisfy the requirements of 40 C.F.R. Part 264. l 43(f) as specified in the Consent Decree. Please call me at 423/336-4675 if you have any questions. Sincerely -§.~J ~ for Olin Corporation Ciba Geigy Corporation and Kaiser Aluminum & Chemical Corporation Enclosures cc: Chief, Environmental Enforcement Section -letter only Director, Waste Management Division -letter only R. McElveen -letter only G.D.Luetscher -letter only H. W. Moats J. W. Vinzant Geigy Chemical Corporation Site Aberdeen, North Carolina COMMITTEE CORRESPONDENCE Mr. Luis E. Flores Remedial Project Manager September 30, 1994 United States Environmental Protection Agency Region IV 345 Courtland Street, N. E. Atlanta, GA 30365 Rf.'Clt=!VED OCT O 3 1994 SUPERFUNO ~EcnoJ RE: Geigy Chemical Corporation Site, Notification of Additional Response Actions as Required by Section VII, Paragraph 15 of the Consent Decree (Civil Action No. 3:93CV247) Dear Luis: In accordance with Section VII, paragraph 15 of the Geigy Chef11ical Corporation Site Consent Decree, Olin Corporation, Ciba-Geigy Corporation, and·Kaiser Aluminum & Chemical Corporation (the Settling Defendants) herein provide notice that they shall submit a Work Plan for EPA's approval (and a schedule for implementing the Plan) to investigate any down gradient groundwater plume which may be emanating from the Geigy Site property boundary. The Work Plan will be submitted wit_hin thirty days of EPA's receipt of this notice or such longer time as specified by USEPA. Should you have any questions, please feel free to give me a call. Very truly yours, Garland E. Hilliard for Olin Corporation Ciba-Geigy Corporation Kaiser Aluminum & Chemical Corporation ·I Geigy Chemical Corporal.le, Notification of Additional Response Actions • September 30, 1994 Page 2 Copy to: Mr. Greg Luetscher, USEPA Region IV Mr. Jim Cloonan, RUST Environment and Infrastructure Ms. Rachel Deming, Ciba-Geigy Corporation Mr. Rob Lannan, Robinson & McElwee Mr. Randy McElveen, North Carolina Superfund Mr. Harold Moats, Ciba-Geigy Corporation Mr. Ken Rubin, Morgan, Lewis & Beckius Mr. Bill Vinzant, Kaiser Aluminum & Chemical Corporation / --------. • Geigy Chemical Corporation Site Aberdeen, North Carolina Committee Correspondence August 29, 1994 Mr. Luis E. Flores Remedial Project Manager United States Envitronmental Protection Agency Region IV 345 Courtland Street NE Atlanta, Georgia 30365 RE: Geigy Chemical Corporation Site PRP Project Coordinators Dear Luis: REce,veo SEP O 71994 SUPERFUNo sec TION This letter is to notify you of a change in the PRP project coordinator for the Geigy Chemical Corporation Site. This notification is made in accordance with the requirements of Section XIII of the Consent Decree. As I mentioned to you during our telephone conversation on Friday, August 26th, Mr. Garland E. Hilliard is replacing me as the PRP Project Coordinator for the Geigy Site effective September 2, 1994. Please direct future correspondence relating to the project to Garland at the address noted below: Olin Corporation 1186 Lower River Road NW Charleston, Tennessee 37310 Phone: (615) 336-4479 FAX: (615) 336-4166 I have enjoyed the experience of worfdng with you on this project. Take care! LMM285/cp cc H. W. Moats J. W. Vinzant G. E. Hilliard D. L. Cummings ~AJ~ /'!'1 . fYl,,__2,!,« Lorraine M. Miller for Olin Corporation Ciba-Geigy Corporation Kaiser Aluminum & Chemical Corporation K. A. Rubin R. D. Deming R.H. Grubbs R. E. Lannan C. Fehn G. D. Luetscher W. R. McElveen J. J. Cloonan • • UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IV 4WD-NSRB SPECIAL NOTICE LETTER 345 COURTLAND STREET. N.E ATLANTA. GEORGIA 30365 FOR REMEDIAL DESIGN/REMEDIAL ACTION (RD/RA\ URGENT LEGAL MATTER--PROMPT REPLY REQUESTED. CERTIFIED MAIL--RETURN RECEIPT REQUESTED Mr. Edward A. Lewis President Aberdeen and Rockfish Railroad Company P. o. Box 917 Aberdeen, North Carolina 28315 RE: Geigy Chemical Corporation Site (the "Site") Aberdeen, Moore County, North Carolina Dear Mr. Lewis: HfL"klVW Q.~T 14, 199?. SUPERRIND SftrtON This letter notifies you that Aberdeen and Rockfish Railroad Company may be a liable party within the meaning of and as set forth in Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. S 9607(a), as amended, with respect to the above-referenced Site. As the enclosed Record of Decision details, the United States Environmental Protection Agency ("EPA" or "Agency") has documented the release or threatened release of hazardous substances, pollutants and contaminants at the above-referenced Site. EPA is considering spending public funds to abate the releasts or threatened releases of hazardous substances, pollutants or contaminants by undertaking response actions pursuant to Section 104 of CERCLA, 42 U.S.C. S 9604, unless the Agency determines that such ·action will be done properly by a potentially responsible party ("PRP"). By this letter, EPA is notifying PRPs of the opportunity to perform the response activities outlined below. In addition, this letter serves three other purposes: (1) to demand reimbursement of response costs that have been incurred at the Site, including interest thereon; (2) to notify you that a 60-day period of formal negotiations with EPA automatically begins upon receipt of this-notice, which EPA has deemed to be seven calendar days from the date of this letter; and (3) to provide general and Site-specific documentation in order to assist you in the negotiation process. Such documentation includes a draft Consent Decree, a copy of the Record of Decision, and a draft ~fatement of Work. EPA reserves the right to make certain additional changes in the Consent Decree and Statement of Work prior to finalization of such documents. ;-<l \ :~{fl Printed on Recycled Paper .. • • -2- NOTICE OF POTENTIAL LIABILITY PRPs under CERCLA include: the current owners or operators of the Site; persons who at the time of disposal of hazardous substances owned or operated the facility; persons who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for disposal or treatment of hazardous substances; and persons who accept or accepted any hazardous substance for transport to disposal facilities and selected such facilities. Under CERCLA and other laws, potentially responsible parties may be liable for all funds expended by the United States government to take necessary corrective action at a site, including planning, investigation, cleanup and enforcement activities associated with a site. In addition, potentially responsible parties may be required to pay damages for injury to natural resources or for their destruction or loss, together with the cost of assessing such damages. Based on information received during the investigation of this Site, EPA believes that Aberdeen and Rockfish Railroad Company is a potentially responsible party under Section 107 of CERCLA, 42 U.S.C. § 9607(a). Before the government undertakes further response actions, EPA requests that the PRPs voluntarily perform the work necessary to prevent any releases or threatened releases of hazardous substances from the Site. SPECIAL NOTICE AND NEGOTIATION MORATORIUM EPA encourages good faith negotiations between Aberdeen and Rockfish Railroad Company and EPA and between Aberdeen and Rockfish Railroad Company and other PRPs regarding the response actions required at the Site. In accordance with Section 122(e) of CERCLA, 42 U.S.C. § 9622(e), EPA is providing as an Enclosure to this letter, a PRP information package which includes a list of names and addresses of other PRPs receiving this notification. EPA has determined that a period of negotiation would facilitate settlement between EPA and the PRPs. Pursuant to Section 122(e) of CERCLA, 42 u.s.c. § 9622(e), a 60-day moratorium on certain EPA response activities at the Site will begin seven calendar days fr.om the date of this letter. During this 60-day period, the PRPs, including Aberdeen and Rockfish Railroad Company, are invited to participate in formal ·negotiations with EPA and to negotiate a settlement providing for the PRPs to conduct or finance the Remedial Design/Remedial Action ("RD/RA") at this Site. The 60-day negotiation period will be continued for an additional 60 days if, within the initial 60-day period, the PRPs provide EPA with a good faith offer to conduct or finance the RD/RA. If a settlement is reached between EPA and the PRPs • • -3- within the 120 day moratorium period, the settlement will be embodied in a Consent Decree for the RD/RA. Pursuant to Section 122(e) (4) of CERCLA, 42 u.s.c. § 9622(e) (4), if a good faith offer is not received within the initial 60-day notice period, EPA may take appropriate action at the Site. Moreover, EPA reserves the right to take action at any time at the Site in the event that a significant threat requiring EPA's immediate response arises. A good faith offer is a written proposal which demonstrates the PRPs' qualifications and willingness to conduct or finance the RD/RA. A good faith offer to conduct or finance the RD/RA must include the following elements: 1. A statement of willingness by the PRPs to conduct or finance the RD/RA which is consistent with the draft Consent Decree, Scope of Work, and Record of Decision and which provides a sufficient basis for further negotiations. 2. A paragraph by paragraph response to the terms of the draft Consent Decree and enclosed Statement of Work. 3. A demonstration of the PRPs' technical capability to carry out the RD/RA including the identification of the firm(s) that would be used to conduct the work or a description of the process that will be used to select the firm(s). 4. A demonstration of the PRPs' capability and willingness to finance the RD/RA • • 5. A statement of the PRPs' willingness to reimburse EPA for costs incurred in overseeing the PRPs' conduct of the RD/RA. 6. The name, address and telephone number of the party or steering committee who will represent the PRPs in negotiations. ADMINISTRATIVE RECORD Pursuant to Section 113(k) of CERCLA, EPA has compiled the a~nistrative record which contains documents that form the basis of EPA's decision on the selection of a response action for the Site. This administrative record is open to the public for inspection and comment at the Aberdeen Town Hall in Aberdeen, North Carolina and at the EPA Library, 345 Courtland Street, N.E., Atlanta, Georgia. ... • • -4- DEMAND FOR PAYMENT In accordance with CERCLA, EPA has already undertaken certain actions and incurred costs in response to conditions at this Site. Those response actions include a site investigation, several removals and a Remedial Investigation/Feasibility Study ("RI/FS"). The cost to date of the response actions performed at the Site through EPA funding which have not been reimbursed by the PRPs is approximately $115,828.69. Pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607, EPA hereby demands payment of the above-stated amount, together with any and all interest recoverable by law. As stated above, EPA anticipates expending additional funds to conduct the RD/RA at this Site. Whether EPA funds the entire RD/RA or simply incurs costs in overseeing the parties conducting these response activities, you are potentially liable for these expenditures ~lus interest. PRP STEERING COMMITTEE EPA recommends that all PRPs meet to select a steering committee responsible for representing the group's interests. Establishing a m~nageable groupJs critical for successful negotiations with EPA. -- PRP RESPONSE AND EPA CONTACT PERSON Section 122(e) of CERCLA, 42 U.S.C. § 9622(e), provides that Aberdeen and Rockfish Railroad Company has 60 days to make a good faith offer to EPA. However, you are requested to contact EPA in writing within twenty (20) calendar days of the date of this letter to indicate whether you wish to participate in negotiations to undertake or finance the RD/RA at this Site. You may respond individually or through a steering committee if such a committee has been formed. Your letter should include the appropriate person's name, address and telephone number for further contact with you. If EPA does not receive a timely response, EPA will assume that you do not wish to negotiate a resolution of its liabilities in connection with the response, and that you have declined any involvement in performing these response activities. You may be held liable hereafter under Section 107 of CERCLA, 42 u.s.c. S 9607, for the cost of the response actions which EPA performs at the Site and for any damages to natural resources. • • -5- Your response to this notice letter should be sent to: Gregory D. Luetscher · Assistant Regional Counsel U.S. Environmental Protection Agency 345 Courtland Street, N.E. Atlanta, Georgia 30365 404/347-2641 ext. 2275 If you have any legal questions pertaining to this matter, please direct them to Mr. Luetscher. Questions of a technical nature should be directed to Giezelle Bennett, Remedial Project Manager, at 404/347-7791. Due to the seriousness of the problem at the Site and the legal ramifications of your failure to respond promptly, EPA strongly encourages you to give this matter your immediate attention and to respond within the time specified above. Thank you for your cooperation in this matter. Sncerel~~• Joseph R. Franzmathes, Directo Waste Management Division Enclosures cc: Jack Butler North Carolina Department of Environmental Health and Natural Resources Mr. John A. Lindsey Coastal Resource Coordinator U.S. Department of Commerce/National Oceanic and Atmospheric Administration North Carolina Natural Resources Trustee ' • • PRPs AT THE GEIGY CHEMICAL CORPORATION SITE RECEIVING SPECIAL NOTICE LETTERS FOR RD/RA Mr. Edward A. Lewis President Aberdeen and Rockfish Railroad Company Post Office Box 917 Aberdeen, North Carolina 28315 Mr. Donald L. Paulson, Jr. Agricultural Division CIBA-GEIGY Corporation P.O. Box 18300 Greensboro, North Carolina 27419 Mr. Verrill M. Norwood. Vice President, Environmental Affairs Olin Corporation P.O. Box 248 Lower River Road Charleston, Tennessee 37310 Mr. Phillip Fournet Environmental Affairs Kaiser Aluminum and Chemical Corporation 5555 Hilton Avenue, Suite 200 Baton Rouge, Louisiana 70808 Mr. F. D. Bertz Vice President Environmental Affairs Columbia Nitrogen Corporation P.O. Box 1483 Augusta, Georgia 30903 Mr. Lewis Artz Lebanaon Chemical Corporation P.O. Box 180 Lebanon, Pennsylvania 17042 • • WoMBLE WRLYLE SANDRIDGE & Rim 1600 ONE TRIAD PARK AND CHARLOTTI o,,ict 2400 WACHOVIA BUILDING WINSTON-SALEM, NORTil CAROLINA 27101 JJOO O'll PIUT UIIIOI' oi•ru JO J SOUTtl COLU'O?. nu.n CHAli.LOTH, "OaTH C.UOL11<A 28202-t,025 lf.UHHOHf {7(1.t) JJJ.,1900 THfCOn" (70,IJ JJ).~955 R. HOWARD GRUBBS {919) 721-3537 Via Federal Express Ms. Giezelle S. Bennett Greg Luetscher, Esq. North Superfund Remedial Branch Waste Management Division IU.IUIOO AZlf! .. 1!.JI P0IY 0O1,::S 0LAYal 8.( •nnTOH•ULnl, IIOITII C...IOLI .. , 27102 nl.L■PHO•I (919) 721-H00 OTl' TILICOPT (919) 72}-J(,60 W4CHOVIA HLIC'OPT (919) 72J•JS99 n.LU. 806◄ 9II May 14, 1992 United States Environmental Protection Agency Regio:i IV -345 Courtland Street, N.E. Atlanta, GA 30365 Re: Summary of information presented at the April 30, 1992 meeting v.ith USEPA for inclusion in the administrative record for the Geigy Chemical Corporation Site in Aberdeen, N.C. Dear Ms. Bennett and Mr. Luetscher: ' ! / ! . ',v l, :: i',\ ~•-I I aALIIOH o,r1ct 800 •,lt.et,OVIA HIILOIM(; POil OHIC£ 10111" 8) J LALIIOH, IOO.TH CA•OLIN,._ 27602 nu,HOU (9)9) 75~-2](1(/ nuco,r (919) 755-2150 ftL&X 80608 \ On behalf of Olin Corporation, CIBA-GEIGY Corporation and Kaiser Aluminum & Chemical Corporation (the PRPs), this letter and the enclosed materials are submitted for the administrative record pertaining to the Geigy Chemical Corporation Site in Aberdeen, North Carolina. The PRPs provided both you and Cun Fehn the enclosed materials during our meeting in Atlanta on April 30th. That meeting was held pursuant to the dispute resolution provisions in Article XII of the Administrative Order on Consent (AOC) signed by the PRPs and the Agency in 1988. · This letter summarizes the concerns raised by the PRPs at our most recent meeting. The Agency's selection of an on-site thermal remedy as the preferred remedy for this site and the application of overly conservative soil cleanup levels are inconsistent v.ith the National Contingency Plan (NCP). Additionally, the Agency acted in an arbitrary and capricious manner when the preferred soil remedy and cleanup levels were selected. • • Ms. Bennett & Luetscher May 14, 1992 Page 2 In brief, pertinent facts in support of these conclusions are as follows: 1. The site is too small for an on-site thermal remedy. The equipment required for either thermal desorption or the backup remedy (incineration) will not fit on this site --a one acre sliver of land sandwiched between an operating railroad and a major highway. Additionally, the volume of soil to be treated at this site is insufficient to mobilize qualified contractors. 2. An on-site thermal remedy will significantly delay remediation of groundwater, which everyone agrees poses the greatest risk to human health and the environment at this site. 3. Given the topography_ of this site, an on-site thermal remedy could result in air emissions, the effect of which have not been evaluated by the Agency. 4. The administrative record contains insufficient evidence regarding the scientific feasibility and implementability of a thermal remedy at the site. 5. The Agency has refused to engage in constructive discussions v.1th the PRPs in selecting subsurface soil cleanup levels and has ignored certain Agency modeling results that should have been considered in determining appropriate cleanup levels. 6. The soil cleanup levels were based on unrealistic assumptions, such as building a house four ( 4) times larger than a normal residence in the area on an undesirable piece of property, v.1th a basement in an area where historically houses are not built with basements. 7. The advantages of off-site treatment and disposal (Alternative 2) were not given adequate consideration. In fact, the PRPs have not been given any formal written notice of rejection by anyone at the Agency, nor have they been given an oral explanation about why their preferred remedy has been rejected. The PRPs strangly believe that their preferred soil remedy is in the best interest of everyone involved: the Agency, the State of North Carolina, the PRPs, and the community. We recognize that both the Agency's and the State's preference for on-site remedies, but the criterion is just that --a preference. There is no statutory or regulatory mandate for on-site remedies. In fact, Section 121(d)(4) of CERCLA provides that the on-site preference need not be followed if: (B) Compliance .,,.1th such requirements at that facility will result in greater risk to human health and the environment than alternative options; and (C) Compliance v.1th such requirements is technically impracticable from an engineering perspective. • • Ms. Bennett & Luetscher May 14, 1992 Page 3 Likewise, the NCP recognizes "implementability" as one of the five primary balancing criteria in selecting a remedy. 40 C.F.R. § 300.430(f)(l)(i)(B). The problems involved in implementing an on-site thermal remedy at the Geigy Site clearly outweigh a preference for on-site treatment. Moreover, the PRPs have been informed that North Carolina does not consider that off-site treatment and disposal would be inconsistent with the State's preference for on-site treatment where practicable because an on-site thermal remedy would delay remediating the ·groundwater. There are many examples where the chosen on-site remedy has, after careful consideration, been changed to another remedy. For example, just last month, according a recent press release from Region V dated April 3, 1992, the Agency reconsidered a remedy identified in a 1990 ROD that called for incineration of contaminated material on-site. The Agency is now proposing to dispose of all the material at the Bofors-Nobel Site in a landfill, v..'ithout incineration. On page 2 of the press release, the Agency's Region V Waste Management Division Director, David A. Ulrich said, "we are pleased to announce this proposed change because it can be carried out faster and for less money than the previous plan, and still be fully protective of public health and the environment." Finally, under Section 107 of CERCLA, a PRP is not liable for costs incurred by the Agency that are inconsistent with the NCP. Moreover, under Section 106 of CERCLA, PRPs who can demonstrate on the administrative record that the Agency's decision in selecting a response action was arbitrary and capricious, or otherwise not in accordance with the law, may recover reimbursement from the Fund. The PRPs remain committed to remediating the soil and groundwater at the site. However, the administrative record clearly demonstrates that the Agency's preferred soil remedy and choice of cleanup levels v..111 significantly delay the remediation and can only be achieved at a great --and unnecessary --ex-pense. RHG:cho cc: Curtis F. Fehn William Meyer W#43213 • Ms. Bennett & Luetscher May 14, 1992 Page 4 W#432!3 R. Keith Harold Don L Paulson Rachel E. Deming, Esq. Lorraine M. Miller David L Cnmmine,, Torn O'Brien Kenneth A Rubin, Esq. Lester M. Rapp Robert E. Lannan, Esq Jim Cloonan (aU without enclosures) • • • UNITED ST ATES ENVIRONMENT AL PROTECTION AGENCY REGION IV 4WD-SFB CERTIFIED MAIL RETURN RECEIPT REQUESTED Mr. D. L. Paulson Ciba-Geigy Corporation 41 Swing Road Greensboro, NC 27409 345 COURTLAND STREET ATLANTA, GEORGIA 30315!5 Re: Geigy Chemical Corporation CERCLA Site, Aberdeen, Moore County, North Carolina Dear Mr. Paulson: The United States Environmental Protection Agency (EPA) is considering spending public funds to conduct a Remedial Investigation and Feasibility Study (RI/FS) at the Geigy Chemical Corporation Site in Aberdeen, Moore County, North Carolina (site). By this notice EPA is notifying all potentially responsible parties of their opportunity to perform remedial activities for the site, pursuant to the Canprehensive Environmental Response, Car,pensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 u.s.c. Section 9601 et. seq. EPA has determined that you are a potentially responsible party pursuant to Section 107(a) of CERCLA and may be liable for all costs incurred in conducting a Re!l'.edial Investigation and Feasibility Study (RI/FS), and in cleaning up the site. Responsible parties under CERCLA include current and former owners or operators of the site and persons who ge,nerated the hazardous substances, or were involved in the transport, treatment or disposal of them at the site. The Geigy site was proposed for the National Priorities List (NPL) June 24, 1988, pursuant to the provisions of Section 105 of CERCLA, 42 u.s.c. Section 9605. EPA is charged with the responsibility of deterrnining what appropriate actions must be taken at the site. In order to determine these appropriate actions, a RI/FS is required to determine the nature and extent of the problem presented by the site and to identify the relevant alternatives for remedial action. Pursuant to the authority of Section 122(e) of SARA, and based on discussions in our July 28, 1988 meeting between EPA and the Geigy site potentially responsible parties, EPA has determined that a period of negotiation would facilitate an agreement with potentially responsible parties for taking response actions at the site, and would expedite remedial action. EPA is inviting you and all other potentially responsible parties to participate in formal negotiations for the performance of a RI/FS for the Geigy site. Section l22(e) of SARA provides that persons receiving such notice shall have sixty (60) days fran the date of receipt of that notice to make a proposal to EPA for undertaking or financing the action. Therefore, in the absence of a good faith offer to participate in the activities described abc:Ne, the negotiation moratorium will conclude after sixty (60) days from receipt of this notice. • -2-• At the July 28, 1988 meeting between EPA and potentially responsible parties, you were provided with all available information regarding the Geigy Chemical Corporation site. This inforrr~tion included: -Report by NUS Corporation on 1987 preliminary site investigation; -Report by EPA, ERT on area private well sampling, June, 1987; and -Report by EPA, ESD on municipal and private well sampling, November, 1987. In addition you were provided with EPA guidance in conducting a RI/FS which included: -"Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (CSWER Directive 9335.3-01); "Data Quality Objectives for Remedial Response Activities" (OSWER Directive 9355.0-7B)"; and Region IV's Engineering Support Branch Standard Operating Procedures. A draft administrative order on consent (Consent Order) was also provided to you in that meeting. EPA is currently planning to conduct an RI/FS at the site. Potentially responsible parties may perform the RI/FS provided they agree to follow the requirements and procedures of EPA. If you are interested in performing the RI/FS, you must submit a gcxxl faith offer to EPA within sixty (60) days of the date of receipt of this letter. A gcxxl faith offer is a written proposal which demonstrates the potentially responsible party's qualifications and willingness to conduct or finance the RI/FS. A gcxxl faith offer for the RI/FS should include the following: - A statement of your willingness to conduct or finance the RI/FS which is consistent with EPA's draft administrative order on consent or provides a sufficient basis for further negotiations; - A response to EPA's draft administrative order on consent; - A detailed Scope of Work identifying how you plan to proceed with the work; - A demonstration of your technical capability to undertake the RI/FS. You should identify the firm you expect will conduct the work, along with their credentials, or the process you will undertake to select a firm; • • -3- - A demonstration of your financial capability to finance the RI/FS; - A statement of your willingness to reirrburse EPA for the costs EPA incurs in overseeing your conduct of the RI/FS as required by Section 104(a)(l); and -The name, address and phone number of the party or parties who will represent you in ,negotiations. If EPA does not receive your good faith offer wit.~in the sixty (60) day deadline, EPA may then commence the RI/FS and may seek to recover costs from all potentially responsible parties. You should notify EPA in writing within thirty (30) calendar days of receipt of this letter whether you wish to participate in the negotiation process for undertaking or financing the RI/FS at the Geigy site. Responsible parties may respond as a group through a steering COM\ittee if so desired. A list of potentially responsible parties is enclosed. Your reply to this letter should be directed to: Mr. Charles K. Eger Site Project Manager u.s. Environmental Protection Agency Superfund Branch 345 Courtland Street, N.E. Atlanta, Georgia 30365 In your reply you may choose to present a draft outline or scope of work of the work plan you propose to implement pending completion of the negotiation process. EPA would like to encourage good faith ~egotiations between you and the Agency and between you and other potentially responsible parties. Due to the seriousness of the problem at the site and the attendant legal ramifications we hope that you will give these matters your irrmediate attention. Should you need more information, Chuck Eger can be reached at (404)-347-3402. Should you have any questions regarding the legal ramifications raised in this notice, contact Ms. Sally Mozley at (404) 347-2641. Sincerely, ~Ml~ Patrick M. Tobin, Director Waste Management Division Enclosure cc: Ms. Lee Crosby, North Carolina Solid and Hazardous Waste Dii:ector, Office of Waste Programs Enforcement Office of Enforcement and Carpliance Monitoring 4WD-SFB JA~ o ~ rns9 Ms. Lee Crosby, Head -Superfund Br.anch Solid Waste Management Sectipn NCDHR P.O. Boie 2091 Raleigh; NC 27602 . RE: Geigy Chemical Cor.por.ation llPL Site Aber.deen, Nor.th· car.olina Dear. Hs. Cr.osby: As stated in Pat 'Ibbin.'s .letter. to you dated 1 December. 1988, enclosed is a copy of the signed Administrative Or.der. on Consent for. the subject site. The Or.der.'was signed by EPA's Region IV Regional Nlministrator. on 16 December. 1988. EPA' received a dr.aft RI/FS ll/or,k Pian fr.om the ·r.esponsible par.ty consultant, ERH-SOUtheast, orr 5 Decanft:ler.. 1988. The RI/FS Wor.k Plan was· sent out for. technical r.eview cin 7 Decembe.t: 1988. Stan Atwood of your office r.esponded to my r.equest for revie_w with no comments, . . On 4 January 1989, a CQ'.) meeting. was held in Atlanta. The meeting was an infor.mal discussion amongst the r.esponsible par.ty technical committee and EPA. -Discussion focused on the justification.and r.ationale fot: the pr.oposed r.emedial investigation. Minutes from the·meeting_ will follow·shor.tly. Should:you have any questions concer.ning' t~ Mministr.ative Or.der. Ot: the dr.aft RI/FS WOr.k Plan, do not hesitate to call me at (4D4) 347--7791. . · .-. . , ' . . . , . . . Sincer.ely,. KayL •. Cr.ane, Remedial Pr.oject Manager \-Jll.ste ManagElffiP-nt Di visioo Enclosur.e cc:,. · Stan Atwood, HC Pr.oject Manager. SFB (with enclosur.e) Pat DeP-osa, NC SFB (with enclosur.e) . . ' ,. • • UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IV IN THE MATTER OF: Geigy Chemical Corporation Site Aberdeen, North Carolina ) . U.S. EPA DOCKET NO. 89-lQ-C ) ) ---------~------) CIBA-GEIGY Corporation ) Kaiser Aluminum & ) Chemical Corporation, and ) Olin Corporation, ) Respondents ) ) ) ) Proceeding Under Sections 104, 106 and 122 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sections 9604, 9606(a) and 9622) as amended by the Superfund Amendments and Reauthorization Act of 1986, P.L. 99-499, October 17, 1986. ADMINISTRATIVE ORDER ON CONSENT I. JURISDICTION This Administrative Order on Consent (hereinafter called ''Consent Order'') is entered into by the United States Environmental Protection Agency (hereafter called "EPA") with the participating Respondents CIBA-GEIGY Corporation, Kaiser Aluminum & Chemical Corporation, and Olin Corporation (hereinafter collectively referred to as the ''Respondents'') pursuant to the authority vested in the President of the United States by Sections 104, 106(a) and 122(d) (3) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (hereafter called "CERCLA"), 42 U.S.C. Sections 9604, 9606 and 9622, as amended by the Superfund Amendments and Reauthorization Act of 1986 (hereafter called "SARA"), .Public Law 99-499, October 17, 1986. This authority was delegated to the Administrator of EPA on January 23, 1987 by Executive Order 12 580, 52 Federal Register ·2923c'(January 29, 1987) and has been further delegated to the Regional Administrator of Region IV, EPA. The Respondents agree to undertake all actions ··required by the terms and conditions of this Consent Order. Solely for purposes of this Consent Order, the Respondents consent to and agree not to contest EPA jurisdiction to issue and enforce this Consent Order. The Respondents do not admit, accept, or concede the determinations, allegations, findings of fact, and conclusions of law, and specifically reserve the right to 1!S2J4Rl3H • ) -2 - contest the determinations, allegations, findings of fact and conclusions of law in any proceeding regarding the Geigy Chemical Corporation Site (hereafter referred to as the Site) except for actions brought to enforce this Consent Order. Furthermore, Respondents do not admit liability under CERCLA/SARA or any other statute or common law and any responsibility for response costs or damages thereunder, and do not, by signing this Consent Order, waive any rights they·may have to assert claims under CERCLA/SARA against any person, as defined in Section 101(21) of CERCLA, 42 U.S.C. Section 9601(21). Respondents reserve the right to raise any rights and defenses which they may have regarding liability or responsibility in any subsequent action or proceeding regarding this Site, unless specifically waived herein. In entering into this Consent Order, the Respondents waive any right to seek reimbursement under Section 106(b) of CERCLA, 42 U.S.C. 9606(b), for any costs which are incurred complying with this Order. II. STATEMENT OF PURPOSE In entering into this Consent Order, EPA's objectives are: (1) to determine fully the nature and extent of the threat or potential 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 evaluate alternatives for the appropriate extent of remedial action to prevent or mitigate the migration or potential migration or the release or threatened release of hazardous substances, pollutants and/or contaminants from the Site (Feasibility Study). The Respondents agree to carry out the terms and conditions of this Consent Order to achieve EPA's objectives. The activities conducted pursuant to this Consent Order are subject to approval by EPA and shall be consistent with the National Contingency Plan, 40 CFR part 300 et seq., as amended. III. FINDINGS OF FACT For purposes of this Consent Order, EPA finds that: A. The Site is a one-acre parcel located on a railroad right-of-way on Route 211, 0.3 miles east of SR 2063 in Southeastern Moore County, North Carolina, near Aberdeen, North Carolina. B. The Respondents are past operators of the Site. C. The site is proposed for the National Priorities List as defined in Section 105 of CERCLA, 42 U.S.C. Section 9605. IIS23~RBH , • -3 -• D. The Site has been used since at least 1948 as a pesticide/agriculture chemical formulation and/or distribution facility, at times as a pesticide formulation/distribution facility, and at times as an agricultural chemical distribution center. E. Sampling investigations have revealed elevated levels of DDT, DDE, ODD, Toxaphene and isomers of benzen'e hexachloride (BHC) in the Site soils. F. The gamma isomer of BHC is a possible human carcinogen. DDT, banned from use in the U.S. since 1972, is a toxicant with long-term persistence in soil and is widely dispersed by erosion and runoff. Toxaphene has been shown to be a positive carcinogen in animals. G. The Site overlies the Middendorf and Pinehurst geologic formations which make up the Sandhills aquifer.· This aquifer is composed of poorly sorted unconsolidated sands and clay and is considered moderately permeable. The depth to ground water in the area is approximately thirty (30) feet. H. The primary possible routes of contaminant migration are ground water and surface water. I. The Sandhills aquifer is the sole source for drinking water for the city of Aberdeen. Approximately 5,924 people obtain drinking water from the Sandhills aquifer within a three (3) mile radius of the Site. J. The Site is unfenced. K. EPA monitoring has indicated the presence of alpha, beta and gamma isomers of BHC in some municipal and private wells in the Aberdeen area. IV. CONCLUSIONS OF LAW For the purpose of this Consent Order, EPA concludes that: A. The Site is a. facility within the meaning of Section 101(9) of CERCLA, 42 U.S.C. Section 9601(9). B. The Respondents are persons as defined in Section 101(21) of CERCLA, 42 U.S.C. Section 9601(21). C. The chemicals found in the groundwater as described in paragraph III above are "hazardous substances" within the meaning of Section 101(14) of CERCLA, 42 U.S.C. Section 9601(14). 11S234RBII • -4 -• D. The presence of hazardous substances at the Site constitutes both an actual release and threatened release within the meaning of Section 101(22) of CERCLA, 42 U.S.C. Section 9601(22). V. EPA DETERMINATIONS Base·d on the Findings of Fact and Conclusions of Law set out above, EPA has determined that: A. The actions required by this Consent Order are necessary to protect the public health or welfare or the environment. B. In accordance with Section 104(a) (1) of CERCLA, 42 U.S.C. Section 9604(a) (1) as amended by SARA, EPA has determined that the Respondents will properly and promptly conduct the RI/FS and are qualified to do so. I VI. WORK TO BE PERFORMED Based on the foregoing, it is hereby AGREED TO AND ORDERED that the following work shall be performed: All work performed pursuant to this Consent Order shall be under the direction and supervision of a qualified professional engineer or a certified geologist with expertise in hazardous waste site cleanup. 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. If the Respondents determine it is necessary to remove the present engineer/geologist/contractor from the site during the RI/FS process, the Respondents shall notify and give a complete written statement of the reasons for the change to EPA within ten (10) working days of the removal of the current engineer/geologist/contractor. A. Within twenty (20) calendar days of Respondents' receipt of wr.itten notification of the effective date of this Consent Order, the Respondents and EPA shall conduct a Data Quality Objectives (DQO) meeting at EPA, Region IV offices to present the objectives for the development of the RI/FS Work Plan and the Respondents' proposed criteria to determine the extent of soil removal. The development of DQOs shall be conducted in conformance with OSWER Directive 9355.0-7 B (2 volumes) March, 1987 entitled "Data Quality Objectives for Remedial Response Activities.'' IIS23t.Rl3H • -5 - B. Within forty (40) calendar days of Respondents' receipt of written notification of the effective date of this Consent Order, the Respondents 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 Respondents by EPA (''Guidance for Conducting Remedial Investigations and Feasibility Studies under CERCLA", draft 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. The RI/FS Work Plan and all other reports and plans shall be subject to review, modification, and approval by EPA. c. Within forty (40) calendar days after receipt of the RI/FS Work Plan by EPA, EPA shall notify the Respondents in writing of EPA's approval or disapproval of the RI/FS Work Plan or any part thereof. In the event of any disapproval, EPA shall specify in writing both the deficiencies and any EPA recommended modifications regarding the RI/FS Work Plan. D. Within thirty (30) calendar days of the receipt of written notification of RI/FS Work Plan disapproval, the Respondents shall amend and submit to EPA a revised RI/FS Work Plan. In the event of subsequent disapproval of the RI/FS Work Plan, Respondents may invoke the dispute resolution procedures of Section XII herein. In the event the dispute is decided in favor of EPA, and Respondents refuse to modify the RI/FS Work Plan as required, EPA retains the right to conduct a complete RI/FS pursuant to its authority under CERCLA. E. The Respondents shall implement the tasks detailed in the approved 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). HS234RBfl 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. A list of the currently available guidance documents is attached, and such list will be updated upon the issuance of new or revised guidances. If additional data gathering is required under a new or revised guidance document and the RI/FS Work Plan is being implemented by Respondents -6 -• as of the date of such guidance, such efforts will be considered as additional tasks under paragraph N of this Section. If additional data gathering is not required, EPA shall determine an appropriate revision to the Work Plan schedule to accommodate compliance with such new or revised guidance document. 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 must be consistent with and incorporate all of the requirements which are set forth in the EPA Region IV Engineering Support Branch Standard Operating Procedures and Quality Assurance Manual which is dated April, 1986. The POP must'be consistent with any amendment to this manual in effect as of the date of the submission of the POP and provided to Respondents. G. Within twenty (20) calendar days of approval of the POP by EPA, Respondents shall commence implementing the RI/FS Work Plan. H. The Respondents shall provide written progress reports to EPA according to the schedule contained in the RI/FS Work Plan. These progress reports shall: (1) describe the actions which have been taken toward achieving compliance with this Consent Order, (2) include all results of sampling and tests and all other data, which has Q/A approval, received by the Respondents and previously not submitted, since the date of the previous progress report and (3) include all plans and procedures completed subsequent to EPA approval of the RI/FS Work Plan during the past month, as well as such actions, data, and plans which are scheduled for the next month. These reports are to be submitted to EPA in accordance with the schedule contained in the RI/FS Work Plan. I. The Respondents shall provide preliminary and final reports to EPA according to the schedule contained in the RI/FS Work Plan. J. EPA shall review the preliminary and final reports and within forty-five (45) calendar days after receipt by EPA of such reports EPA shall notify the Respondents in writing of EPA's approval or disapproval of these 11S234RGH • -7 -• reports or any part thereof. In the event of any disapproval, EPA shall specify in writing both the deficiencies and tl1e reasons for such disapproval. K. If in addressing the deficiencies, or revisions required by new or revised guidance documents, additional field or laboratory work is not required, then within forty-five (45) calendar days after receipt of EPA notification of preliminary or final report disapproval, the Respondents shall amend and submit to EPA the revised reports. If field or laboratory work is required to correct the deficiencies, or revisions required by new or revised guidance documents, EPA shall determine an appropriate amount of time in addition to the forty-five (45) calendar days for preparation of the revised report. In the event of subsequent disapproval, the dispute shall be resolved pursuant to the dispute resolution provisions of Section XII herein. L. As part of the RI/FS Work Plan, the Respondents shall submit to EPA a plan for removal of surface soils. The RI/FS Work Plan shall contain a schedule allowing the completion of the surface removal prior to sampling implementation of the remaining RI/FS tasks. Following these actions, it may be necessary for EPA and Respondents to reconsider tasks remaining to be performed under the Work Plan, in view of the information obtained. It is specifically contemplated that such reconsideration may involve the elimination, modification or addition of tasks. When either EPA or Respondents determine that reconsideration is warranted, it shall so notify the other parties in writing, specifying the changes proposed to be made in the Work Plan. Within twenty-one (21) calendar days of receipt of written notification of proposed changes, the receiving parties will notify the party requesting changes of acceptance or objection to the proposed changes. In the event of objection, the objecting party will specify in writing both the nature of its objection and any requested modifications of the proposal. The submission°of written objections will serve to invoke the dispute resolution provisions of Section XII. M. Documents, including reports, approvals, 'and .other correspondence, to be submitted pursuant to this Consent Order shall be sent by certified mail, Federal Express or some other comparable service to the following addresses or to such other addresses as the Respondents or EPA hereafter may designate in writing: HS234RBH • -8 -• 1. Documents to be submitted to EPA should be sent to (5 copies, one unbound): (Name) Project Manager Superfund Branch U.S. Environmental Protection Agency 345 Courtland Street, N.E. Atlanta, GA 30365 2. Documents to be submitted to the Respondents should be sent to: David L. Cummings Olin Corporation Lower River Road Charleston, TN 37310 N. In addition to the EPA-approved tasks and deliveiables 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 Respondents 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 Respondents in writing. Within thirty (30) calendar days after receipt of EPA's notice, Respondents shall notify EPA in writing as to whether or not Respondents will agree to conduct the additional tasks. Upon written agreement of EPA and Respondents, this Consent Order may be modified as necessary to address such additional tasks. Should Respondents not agree to perform these additional tasks, and to amend this Consent Order as-necessary to encompass the additional tasks the EPA has determined 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 Respondents and any other potentially responsible party ··provided that such additional work and conducting of a complete or part of an RI/FS shall not be inconsistent with the NCP. Failure of Respondents to agree to perform additional work under this Section shall not be a violation of this Consent Order. 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) . IIS231Rl3H • -9 -• VII. DESIGNATED PROJECT COORDINATORS On or before the effective date of this Consent Order, EPA and the Respondents shall each designate a Project Coordinator. Each Project Coordinator shall be responsible for overseeing the implementation of this consent Order. EPA's project manager shall designate in writing the On-Scene-Coordinator. Respondents' project coordinator shall designate in writing an on site representative who will be on Site at all times during conduct of work on Site pursuant to this Consent Order. To the maximum extent possible, communications between the Respondents 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. EPA and the Respondents each have the right to change their respective Project Coordinator. Such a change shall be accomplished by notifying the other party in writing at aeast five (5) calendar days prior to the change. The EPA-designated On-Scene-Coordinator ("OSC"), who may be the EPA Project Coordinator shall have the authority vested in the On-Scene-Coordinator by the National Contingency Plan; 40 CFR Part 300 et seq., 47 Federal Register 31180, July 16, 1982, as amended. This includes the authority to direct the Respondents' On Site representative to halt, conduct, or direct any tasks required by this Consent Order and/or any response actions or portions thereof when conditions present any immediate risk to public health or welfare or the environment. The absence of the EPA Project Coordinator from the site shall not be cause for the stoppage of work. VIII. QUALITY ASSURANCE The Respondents 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, dated April, 1986, throughout all sample collection and analysis activities. This manual has been provided to the Respondents by EPA. The Respondents 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 Respondents shall: A. Ensure that EPA personnel and/or EPA-authorized representatives are allowed access to the laboratory(ies) and personnel utilized by the Respondents for analyses; IIS234RBH -----------------·· ) • -10-• B. Ensure that the laboratory(ies) utilized by the Respondents for analyses perform such analyses according to EPA methods or methods deemed satisfactory to EPA and submit all protocols to be used for analyses to EPA at least fourteen (14) calendar days prior to the commencement of analyses; C. Ensure that laboratory(ies) utilized by the Respondents 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(ies) shall perform such analyses of samples provided by EPA to demonstrate the quality of each laboratory's analytical data. A maximum annual number of four (4) per analytical combination, e.g., four aqueous samples by Gas Chromatography/Mass Spectrometry, four (4) . soil/sediment samples by Gas Chromatography/Mass' Spectrometry, etc., may be provided to each laboratory for analysis. IX. SITE ACCESS Areas covered by the RI/FS Work Plan are presently owned by parties other than the Respondents. The Respondents will use their 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 to EPA and/or their authorized representatives. In the event that site access agreements are not obtained within the time referenced above, the Respondents shall notify EPA in writing regarding both the lack of, and efforts to obtain, such agreements within forty-six (46) calendar days of the effective date of this Consent Order. EPA may then seek to obtain access for performance pursuant to this Consent Order and EPA may seek to recover these costs. Failure by Respondents to obtain site access agreements, after use of their 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 Site access is obtained, however, EPA shall reassess and notify Respondents in writing of the necessity for access to those areas for which access has not been obtained within 12 months after the effective date of this Consent Order. X. SAMPLING, ACCESS, AND DATA/DOCUMENT AVAILABILITY The Respondents shall make the results of all sampling and/or tests or other data generated by the Respondents or on the Respondents' behalf, with respect to the implementation of this Consent Order, available to EPA and shall submit these results l!S234RI3H ) • -11-• after QA/QC in progress reports as described in Section VI of this Consent Order. EPA will make available to the Respondents the results of sampling and/or tests or other data similarly generated by EPA. At the request of EPA, tha Respondents shall allow split or duplicate samples to be taken by EPA and/or its authorized representatives, of any samples collected by the Respondents pursuant to the implementation of this Consent Order. Except as otherwise agreed to in the RI/FS Work Plan or in writing by the parties, the Respondents shall notify EPA not less than seventy-two (72) hours in advance of any sample collection activity. At the request of the Respondents, EPA shall allow split or duplicate samples to be taken by the Respondents and/or their authorized representatives, of any samples collected by EPA pursuant to the implementation of this Consent Order. If EPA elects to take any samples pursuant to the implementation of this Consent Order, EPA shall notify Respondents forty-eight (48) hours in advance of any sample collection activity and shall allow split or duplicate samples to be taken by Respondents and/or their authorized representatives. EPA acknowledges the Respondents are not the property owners of the Site. To the extent Respondents have access to and control over the Site, Respondents agree not to interfere with EPA's and/or its authorized representative's authority to enter and freely move about all property at the Site at all reasonable times for the purposes of, inter alia: inspecting records, operating logs, and contracts related to the Site; reviewing the progress of the Respondents in carrying out the terms of this Consent Order; conducting such tests as EPA or the Project Coordinator deem necessary; and verify the data submitted to EPA by the Respondents .. The Respondents shall permit such persons to inspect and copy all records, files, photographs, documents, and other writings, including all sampling and monitoring data at the Site, 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. The Respondents may assert a confidentiality claim, if appropriate, covering part or .. all of ... the _information provided under this Consent Order pursuant to 40 CFR §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 Respondents. Information determined to be confidential by EPA will be afforded the protection specified in 40 CFR Part 2, Subpart B. If no such claim accompanies the information HS234RBH • -12-• when it is submitted or made available to EPA, it may be made available to the public by EPA without further notice to the Respondents. XI. RECORD PRESERVATION EPA and the Respondents agree that each shall preserve, during the pendancy of this Consent Order and for a minimum of six (6) years after its termination, all records and documents in their possession or in the possession of their divisions, employees, agents, accountants, contractors, or attorneys which relate in any way to the Site, which are not subject to attorney-client or work-product privilege, despite any document retention policy to the contrary. After this six (6) year period, the Respondents shall notify EPA within thirty (30) calendar days prior to the destruction of any such documents. Upon request by EPA, the Respondents shall make available to EPA such records or copies of such records. Additionally, if EPA requests that some or all documents be preserved for a longer period, the Respondents may transfer such documents to EPA, following ninety {90) days notice to EPA, or may retain such documents. XII. DISPUTE RESOLUTION During the course of the work performed under this Consent Order, the Project Coordinators shall attempt to resolve any dispute informally through good faith discussion of the issues. If the Respondents object to any EPA notice of disapproval or decision made pursuant to this Consent Order, the Respondents shall notify EPA in writing of their objections within fourteen (14} calendar days of receipt of the decision. EPA and the Respondents then have an additional fourteen (14) calendar days from the receipt by EPA of the notification of objection to reach agreement. If agreement cannot be reached on any issue within this fourteen (14) calendar day period, EPA shall provide a written statement of its decision to the Respondents. After a final decision, and should the Respondents not agree to perform tasks in accordance with the final decision, EPA may then proceed to complete the ·RI/FS or any part thereof and seek cost recovery from Respondents and any other potentially responsible party. Payment of any penalty amounts which are subject to a dispute resolution proceeding shall be stayed pending resolution of the dispute. Failure to resolve a dispute on any issue may not void the entire Consent Order. Nothing in the Consent Order shall be construed to limit the Respondents' right to contest any further orders promulgated or judicial action brought by EPA. IIS2Jt;RBH -13-• The Respondents may dispute the United States' right to the stated amount of any stipulated penalties assessed under Section XIV, including the merits of the assessment, by invoking dispute resolution procedures under this Section XII. If Respondents do not prevail upon resolution, and EPA seeks to enforce stipulated penalties, then Respondents shall have the right to contest such resolution. If Respondents prevail before or after judicial review, no penalties shall be payable for those penalty issues which were specifically resolved. XIII. DELAY IN PERFORMANCE/FORCE MAJEURE Respondents' 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 majeure event is defined as any event arising from causes beyond the reasonable control of Respondents, including EPA delays in approvals beyond the time specified in the Consent Order or in the RI/FS Work Plan, which could not have been prevented by the exercise of due diligence. Increased cost in performing the terms of this Consent Order, changed economic circumstances and/or failure to apply for permits and approvals shall not be considered as constituting a force majeure event. The Respondents shall notify EPA's Project Coordinator orally within seventy-two (72) hours, and in writing no later than ten (10) business days from the date of discovery of any event which Respondents contend constitutes a force majeure as defined above. The written notice shall describe fully the nature of the delay, why the delay is beyond the reasonable control of the Respondents, 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 Respondents shall adopt all reasonable measures to avoid or minimize any such delay. Whenever the date for submission of any item or notification required by this Consent Order falls.upon a weekend or a · federal holiday, the time period for submission of that item or notification is extended to the next working day following the weekend or holiday. If the date of discovery diffei''s:'.:from the date of inception, Respondents shall include in the required written notice the reasons for the time variance. EPA will then determine whether the variance is warranted and provide for any necessary adjustments to reporting requirements.-•••'" ·· 11S234RBH -14-• A delay that results from a force majeure event shall not be deemed to be a violation of this Consent Order. To the extent that a delay is caused by circumstances which constitute a force majeure, the schedule affected by the delay shall be extended for a period of time equal to the delay resulting from such circumstances, unless EPA determines circumstances warrant a greater extension of time. The Respondents shall have the burden of proving that a delay in performance was caused by circumstances beyond the Respondents' reasonable control which could not have been overcome by due diligence and that they are entitled to additional time beyond the length of the delay. Failure of the Respondents to comply with the written notice requirements of this Section shall constitute a waiver of the Respondents' right to invoke the benefits of this Section with respect to that event. If the parties do not agree as to whether or not the . circumstances were beyond the reasonable control of the 1 Respondents, the dispute shall be resolved in accordance with the provisions of Section XII of this Consent Order. XIV. STIPULATED PENALTIES Unless excused under the provisions of Section XIII, ("Force Majeure"), the Respondents are liable to the Hazardous Substance Superfund administered by EPA for the sums set forth below as stipulated penalties. A. The following per diem stipulated penalties per violation per day for any Minor Violation, including: HS234RBH 1. Failure to submit progress reports or sampling data by the specified due date; 2. Failure to notify EPA of a change in the designated engineer under Section VI hereof or of any other change in personnel notice required under this Consent Order; 3. Failure to abide by the record retention schedule set forth in Section XI hereof; 4. Failure to give the notice of sample collection activity required under Section X hereof or the RI/FS Work Plan; ,, -·e; __ _ Amount/Day $100 $250 $500 Period of Noncompliance Day 1 to 14 Day 15 to 44 Beyond Day 44 -15-• B. All other noncompliance shall be deemed as Major unless EPA determines that a violation should be considered minor under the circumstances of the noncompliance. In the event of a Major noncompliance, the following per diem stipulated penalties apply: Amount/Day $1,000 $3,000 $5,000 Period of Noncompliance Day 1 to 14 Day 15 to 44 Beyond Day 44 C. Checks should be addressed to: U.S. Environmental Protection Agency Region IV Superfund Accounting P.O. Box 100142 Atlanta, GA, 30384 Respondents shall send a copy of the transmittal letter to the EPA's designated Project Coordinator. D. stipulated penalties begin to accrue on the day of a violation, or on the day following Respondents' failure to comply with any schedules or deadlines contained in this Consent order and/or the RI/FS Work Plan, and shall continue to accrue until Respondents' violation ends or until Respondents comply with the particular schedule, deadline, term, condition or requirement. Payment of stipulated penalties shall be due and owing within sixty (60) days from the date of a written notice from EPA notifying Respondents' that penalties have been assessed. E. In the event that Respondents invoke the dispute resolution provisions of Section XII herein with respect to any matter which is subject to the accrual of stipulated penalties, and the dispute is resolved in favor of the EPA, the stipulated penalties shall be deemed to accrue in the period between invocation of dispute resolution and the final resolution. In the event the dispute is resolved in favor ·of Respondents, Respondents shall not be liable for any stipulated penalties relating to the disputed matter. XV. INCORPORATION OF REPORTS Any reports, plans, specifications, schedules, and attachments required by this Consent Order shall, upon approval by EPA and written notice to Respondents, be incorpo"rated into this Consent Order. Any non-compliance with such EPA-approved reports, plans, specifications, schedules, and attachments shall be considered a failure to achieve the requirements of HS234RBH • -16-• this Consent Order and will subject the Respondents to the provisions included in the stipulated penalties Section as described above. XVI. RESERVATION OF RIGHTS Notwithstanding compliance with the terms of this Consent Order, the Respondents are not released from liability, i,f any, for any actions beyond the terms of this Consent Order taken by EPA respecting the Site. 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, except as otherwise provided in Section XII herein. The Respondents and EPA expressly reserve all rights and defenses that they may have in the event of disapproval of work performed by the Respondents or requests that the Respondents perform tasks in addition to those detailed in the RI/FS Work Plan, as provided in this Consent Order. In the event that the Respondents decline to perform any additional and/or modified tasks, EPA will have the right to undertake any Remedial Investigation and/or Feasibility Study work which is not inconsistent with the National Contingency Plan. In addition, EPA reserves the right to undertake removal actions and/or remedial actions, other than those required by this Consent Order, at any time. EPA reserves the right to seek reimbursement from the Respondents thereafter for such costs incurred by the United States. ·In the event that EPA executes its right to perform additional work pursuant to Section VI(N), the Respondents reserve any and all rights and defenses they may have pursuant to CERCLA/SARA and any other statutory or common law. The Respondents reserve the right to assert any applicable statutory rights relative to the remedy selected by EPA for the site. The Respondents reserve all rights that they have 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 and to assert-_defenses in any action for reimbursement from Respondents for any cost incurred by EPA, including the defense that such costs are not consistent with the National Contingency Plan. HS23t;IWII • -17-• XVII. REIMBURSEMENT OF COSTS The Respondents 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 Respondents an accounting sufficient to verify all response and oversight costs incurred by the U.S. Government with respect to this Consent Order. The Respondents shall, within sixty (60) calendar days of receipt of that accounting, remit a check for the amount of those costs made payable to the Hazardous Substance Response Fund. Checks should specifically reference the identity of the site and be addressed to: U.S. Environmental Protection Agency Region IV Superfund Accounting P.O. Box 100142 Atlanta, GA, 30384 A copy of the transmittal letter should be sent to the Project Coordinator. EPA reserves the right to bring an action against the Respondents 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 by the Respondents, 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. EPA recognizes that there may be other responsible parties connected with this Site and that the Respondents are exercising good faith in entering into this Order. It is the policy of EPA to take recalcitrance and cooperation into consideration when the Agency determines future appropriate actions. XVIII. OTHER CLAIMS EPA and Respondents agree that pursuant to Section 113(f) (2) of CERCLA, 42 U.S.C. Section 9613(f) (2), signatories to this .. Order shall not be liable for claims for--contribution regarding matters addressed in this Consent Order. Any other potentially liable persons are not discharged by this Consent Order. Nothing herein is intended to release any claims, causes of action or demands in law or equity which EPA or the Respondents may have against any person, firm, partnership or corporation, not a signatory to this Consent Order, for any liability such non-signatories may have arising out of or relating in any way to the generation, storage, treatment, handling, HS234RBH • -18-• 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 Respondents agree not to assert any claim or causes of action against the Hazardous Substances Superfund for any costs arising out of the response activities undertaken pursuant to this Consent Order. 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 under CERCLA, elsewhere herein, or is made a part hereof at a later date. XX. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT The Respondents agree to indemnify and save and hold the United States Government, its agencies, departments, agents, and employees, harmless from any and all claims or cause of action arising from or on account of acts or omissions of the Respondents, their agents or assigns, in carrying out the activities pursuant to this Consent Order. EPA is not a party in any contract involving the Respondents at the Site. The Respondents do not agree to indemnify the United States or its agencies, departments, agents or employees for that portion of any claim or cause of action attributable to the actions or omissions of the United States or its representatives at the Site or in connection with this Consent Order. XXI. PUBLIC COMMENT EPA shall make both the Remedial Investigation Final Report and the Feasibility Study Report available to the public for review and comment in accordance with CERCLA Section 117, Section 300.67 of the National Contingency Plan and EPA's Community Relations Policy which provide for at least a twenty-one (21} day period for public review and comment. Following the public review and comment period, EPA shall notify the Respondents which remedial action alternative EPA has approved for the Site. XXII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION In consideration of the communications among the Respondents and EPA prior to the issuance of this Consent Order concerning its terms, the Respondents agree that there is no need for a settlement conference prior to the effective date of this HS234RBH • -19-• Consent Order. Therefore, the effective date of this Consent Order shall be the date on which it is signed by EPA's Regional Administrator, Region IV. This Consent Order may be modified by mutual agreement of EPA and the Respondents. Such modifications shall be in writing and shall have as the effective date that date on which such modifications are signed by EPA's Regional Administrator.' No informal advice, guidance, suggestions, or comments by EPA regarding reports, plans, specifications, schedules, and any other writing submitted by the Respondents will be construed as relieving the Respondents of their 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 Respondents and EPA, their agents, successors, and assigns and upon all persons, contractors, and consultants acting under or for either the Respondents 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 Respondents or in any way alter the Respondents' responsibility under this Consent Order. The Respondents will remain the Respondents under this Consent Order and will be responsible for carrying out all activities required of the Respondents under this Consent Order. The Respondents shall provide a copy of this Consent Order to all contractors, sub-contractors, laboratories, and consultants retained to conduct any portion of the work performed pursuant to this Consent Order within fourteen (14) calendar days of'the effective date of this Consent Order or date of such retention. XXIV. NOTICE TO THE STATE EPA has notified the State of North Carolina pursuant to the requirements of Section 106(a) of CERCLA. XXV. TERMINATION'AND·SATISFACTION The provisions of this Consent Order shall be deemed satisfied upon the Respondents' receipt of written notice from E~A that the Respondents have demonstrated, to the satisfaction of EPA, that all of the terms of this Consent Order have been completed, or on the thirtieth day following EPA's issuance of the Record of Decision covering this Site provided that the Respondents have completed the work required by this Consent Order, whichever comes first. When this Consent Order is HS2J4REJH • -20-• deemed satisfied, the EPA shall release Respondents from all liability for costs incurred by Respondents pursuant to this Consent Order. IT IS SO AGREED AND ORDERED: By: Greer C. Tidwell ' Regional Administrator Region IV Date: U.S. Environmental Protection Agency For the Respondents: By: [ fllll Date: Chairman By: Date: ration livan X!Xy(K resident Date: By: Date: num & Chemical Corporation 'Joseph A. Bonn ~ Vice President Date: HS234RBH DEC 1 6 1988 )/~ Ju t 'I ,j) I' ,/ I December 1 • 1988 December 6 , 1988 • • GEIGY CHEMICAL CORPORATION SITE GUIDANCE DOCUMENTS PROVIDED TO RESPONDENTS PURSUANT TO THIS ORDER 1. OSWER Directive 9355.0-7B (Two Volumes), March 19871 2. •. 3. 4 . Data Quality Objectives for Remedial Response Activities, Development Process; Data Quality Objectives for Remedial Response Activities, Example Scenario, RI/FS Activities at a Site with Contaminated Soils and Ground Water. OSWER Directive 9335.3-01, Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA, Draft March 1988. . EPA Region IV, Environmental Services Division, Engineering Support Branch Standard Operating Procedures and Quality Assurance Manual, April 1986. EPA Headquarters, Office of Monitoring Systems and Quality Assurance, Interim Guidelines and Specifications for Preparing Quality Assurance Project Plans, May 1980 (QAMS 005/80).