NCD079044426_19950929_General Electric Co. Shepherd Farm_FRBCERCLA RA_RD RA Special Notice Letter Vol. 2-OCR

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RECEIVED
OCT 111995
sUPERFUND SECTION TABLE OF CONTENTS
CERCLA RD/RA.CONSENT DECREE ' ,
I.
II.
III.
IV.
BACKGROUND .
JURISDICTION
PARTIES BOUND
DEFINITIONS
V. GENERAL PROVISIONS
VI.
VII.
VIII.
IX.
PERFORMANCE OF THE WORK BY SETTLING DEFENDANT
REMEDY REVIEW
QUALITY ASSURANCE, SAMPLING, and DATA ANALYSIS
ACCESS AND INSTITUTIONAL CONTROLS
X. REPORTING REQUIREMENTS
XI.
XII.
XIII.
XIV.
xv.
XVI.
EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS
PROJECT COORDINATORS
ASSURANCE OF ABILITY TO COMPLETE WORK
CERTIFICATION OF COMPLETION
EMERGENCY RESPONSE ....
REIMBURSEMENT OF RESPONSE COSTS
XVII. INDEMNIFICATION AND INSURANCE
XVIII. FORCE MAJEURE ..
XIX. DISPUTE RESOLUTION
XX. STIPULATED PENALTIES
XXI. COVENANTS NOT TO SUE BY PLAINTIFF
XXII. COVENANTS BY SETTLING DEFENDANT
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
XXIV. ACCESS TO INFORMATION
SEP 2 .8 1995 .
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XXV. RETENTION OF RECORDS
XXVI. NOTICES AND SUBMISSIONS
XXVII. EFFECTIVE DATE
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XXVIII. RETENTION OF JURISDICTION
XXIX. APPENDICES ..
XXX. COMMUNITY RELATIONS
XXXI. MODIFICATION ...
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
XXXIII. SIGNATORIES/SERVICE . . •. . . . . .
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r DRAFT.
IL
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA
Plaintiff,
i SEP 2 6 1995.
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CIVIL ACTION NO. v.
GENERAL ELECTRIC COMPANY,
Defendant.
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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 Sections 106 and 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act
( " CERCLA" ) , 4 2 U. S . C . § § 9 6 0 6 , 9 6 0 7 .
B. The United States in its complaint seeks, inter alia:
(1) reimbursement of costs incurred by EPA and the Department of
Justice for response actions at the General Electric/Shepherd
Farm Superfund Site in Hendersonville, North Carolina, together
with any accrued interest; and (2') performance of studies and
re~ponse work by the Defendant at the Site consistent with the
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National Contingency Plan, 40 C.F.R. Part 300 (as amended)
("NCP");
C. In accordance with the NCP and Section 12l(f) (1) (F) of
CERCLA, 42 u.s.c. § 962l(f) (1) (F), EPA notified the State of
North Carolina (the •state") on _________ , 1995, of
negotiations with potentially responsible parties regarding the
implementation of the remedial design and remedial action for the
Site, and EPA has provided the State with an opportunity to
participate in such negotiations and be a party to this Consent
Decree.
D. In accordance with Section 122(j) (1) of CERCLA, 42 U.S.C.
§ 9622(j) (1), EPA notified the U.S. Department of Interior on
~------' 1995, of negotiations with potentially responsible
parties regarding the release of hazardous substances that may
have resulted in injury to the natural resources under Federal
trusteeship and encouraged the trustee(s) to participate in the
negotiation of this Consent Decree.
E. The Defendant that has entered into this Consent Decree
("Settling Defendant") does not admit any liability to the
Plaintiff arising out of the transactions or occurrences alleged
in the complaint, nor does it acknowledge that the release or
threatened release of hazardous substance(s) at or from the Site
constitutes an imminent or substantial endangerment to the public
health or welfare or the environment.
F. Pursuant to Section 105. of CERCLA, 42. U.S. C. § 9 605, EPA
placed the Site on the National Priorities List, set forth at 40
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C.F.R .. Part 300, Appendix B, by publication in the Federal
Register on December 16, 1994, 59 Fed. Reg. 65206.
G. In response to a release or a substantial threat of a
release of a hazardous substance(s) at or from the Site, EPA
commenced in May 1994, a Remedial Investigation and Feasibility
Study ("RI/FS") for the Site pursuant to 40 C.F.R. § 300.430.
H. EPA completed a Remedial Investigation ("RI") Report and
the Feasibility Study ("FS") Report on July 24, 1995.
I. Pursuant to Section 117 of CERCLA; 42 u.s.c. § 9617; EPA
published notice of the completion.of the FS and of the proposed
plan for remedial action in July 1995, in a major local newspaper
of general circulation. EPA provided an opportunity for written
and oral comments from the public on the proposed plan for
remedial action. A copy of the transcript of the public meeting
is available to the public -as part of the administrative record
upon which the Regional Administrator based the selection of the
response action._
J. The decision by EPA on the remedial action to be
implemented at the Site is embodied in a final Record of Decision
("ROD"), executed on ______ , 19_, on which the State has
given its concurrence. The ROD includes·EPA's explanation for
any significant differences between the final plan and the
proposed plan as well as a responsiveness summary to the public
comments. Notice of the final plan was published in accordance
with Section 117(b) of CERCLA.
K. Based on the information presently available, EPA believes
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that the Work will be properly and promptly conducted by the
Settling Defendant if conducted in accordance with the·
requirements of this Consent Decree and its appendices.
L. Solely for the purposes of Section 113(j) of CERCLA, the
Remedial Action selected by the ROD and the Work to be performed
by the Settling Defendant shall constitute a response action
taken or ordered by the President.
M. The Parties recognize, and the Court by entering this
Consent Decree finds, that this Consent Decree has been
negotiated by the Parties in good faith and implementation of
this Consent Decree will expedite the cleanup of the Site and
will avoid prolonged and complicated litigation between the
Parties, and that this Consent Decree is fair, reasonable, and in
the public interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II. JURISDICTION
1. This Court has jurisdiction over the subject matter of •
this action pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C.
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I §§ 9606, 9607, and 9613(b). This Court also has personal
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jurisdiction over the Settling Defendant. Solely for the
purposes of this Consent Decree and t_he underlying complaint,
Settling Defendant waives all objections and defenses that it
may have to jurisdiction of the Court or to venue in this
I District. Settling Defendant shall not challenge the terms of
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this Consent Decree or this Court's jurisdiction to enter and
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enforce this Consent Decree.
III. PARTIES BOUND
2 . This Consent Decree applies to and is binding•. upon the
United States and upon.Settling Defendant and its successors and I assigns. Any change in ownership or corporate status of the
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Settling Defendant including, but not limited to, any transfer of
assets or real or personal property, shall in no way alter such
Settling Defendant's responsibi.lities under this Consent Decree.
3. Settling Defendant shall provide a copy of this Consent
Decree to each contractor hired to perform the Work (as defined
below) required by this Consent Decree and to each person
representing any Settling Defendant with respect to the Site or
the Work and shall condition all contracts entered into hereunder
upon performance of the Work in conformity with the terms of this I Consent Decree. Settling Defendant or its contractors shall
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provide written notice of the Consent Decree to all
subcontractors hired to perform any portion of the Work required
by this Consent Decree. Settling Defendant shall nonetheless be
responsible for ensuring that its contractors and subcontractors
perform the Work contemplated herein in accordance with this
Consent Decree. With regard to the activities undertaken
pursuant to this Consent Decree, each contractor and
subcontractor shall be deemed to be in a contractual relationship
with the Settling Defendant within the meaning of Section
1 0 7 ( b) ( 3 ) of CERCLA, 4 2 U . S . C . § 9 6 0 7 ( b) ( 3 ) .
IV. DEFINITIONS
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4 .. Unless otherwise expressly provided herein, te:ans used in
this Consent Decree which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them
in CERCLA or in such regulations. Whenever te:ans listed below
are used in this Consent Decree or in the appendices a.ttached
hereto and incorporated hereunder, the ·following definitions
shall apply:
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
§ 9601 et.12.fill.
"Consent Decree" shall mean this Decree and all appendices
attached hereto (listed in Section XXIX). In the event of
conflict between this Decree and any appendix, this Decree shall
·control.
"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. Iri 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 close of business of the next working day.
"EPA" shall mean the United States Environmental Protection
Agency and any successor departments or agencies of the United
States.
"Future Response Costs" shall mean all costs, including, but
not limited to, direct, indirect and annual allocation costs,
that the United States incurs in reviewing or developing plans,
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reports and other items pursuant to this Consent Decree,
verifying the Work, or otherwise implementing, overseeing, or
enforcing this Consent Decree, including, but not limited to,
payroll costs, contractor costs, travel costs, laboratory costs,
the costs incurred pursuant to Sections VII, IX (including, but
not limited to, attorneys fees and any monies paid to secure
access and/or to secure institutional controls, including the
amount of just compensation), XV, and Par_agraph 86 of Section
XXI. Future Response Costs shall also include all Interim-
Response Costs and all Interest on the Past Response Costs that
has accrued pursuant to 42 U.S.C. § 9607(a) during the period
from August 31, 1995, to the date of entry of this Consent
Decree.
"Interim Response Costs" shall mean all costs, including
direct and indirect costs, .. (al paid by the United States in
connection with the Site between August 31, 1995, and the
effective date of this Consent Decree, or (b) incurred prior to
the effective date of this Consent Decree but paid after that
date.
"Interest," shall mean interest at the rate specified for
interest on investments of the Hazardous Substance Superfund
established under Subchapter A of Chapter 98 of Title 26 of the
U.S. Code, compounded on October 1 of each year, in accordance
with 42 U.S.C. § 9607(a).
"National Contingency Plan" or "NCP" shall mean the National
Oil and Hazardous Substances Pollution Contingency Plan
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promulgated pursuant to Section 105 of CERCLA, 42 u.s.c. § 9605;
codified at 40 C.F.R. Part 300, and any amendments thereto.
"Operation and Maintenance" or •o & M" shall mean all
activities required to maintain the effectiveness of the Remedial
Action as required under the Operation and Maintenance Plan
approved or developed by EPA pursuant to this Consent Decree and
the Statement of Work (SOW).
"Owner Sett~ing Defendant" shall mean the Settling Defendant
listed in Appendix E.
"Paragraph" shall mean a portion of this Consent Decree
identified by an arabic numeral or an upper case letter.
"Parties" shall mean the United States and the Settling
Defendant.
"Past Response Costs" shall mean all costs, including, but not
limited to, direct, indirect and annual allocation costs, that
the United States paid at or in connection with the Site through
August 31, 1995, plus Interest on all such costs which has
accrued pursuant to 42 U.S.C. § 9607(a) through such date.
"Performance Standards" shall mean the cleanup standards and
other measures of achievement of the goals of the Remedial
Action, set forth in Section 10.3 of the ROD.
"Plaintiff" shall mean the United States.
"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42
U.S.C. §§ 6901 et seq. (also known as the Resource Conservation
and Recovery Act).
"Record of Decision" or "ROD" shall mean the EPA Record of
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Decision relating to the Site or signed on ~---------'
19_, .by the Deputy Division Director of the waste Management
Dvision, .EPA Region IV, or his/her delegate, and all attachments
thereto. The ROD is attached as Appendix A.
"Remedial Action" shall mean those activities, except for
Operation and Maintenance, to be undertaken by the Settling
Defendant to implement the ROD, in accordance with the sow and
the final .Remedial Design and Remedial Action work Plans and
other plans approved by EPA.
"Remedial Action Work Plan" shall mean the document developed
pursuant to Paragraph 12 of this Consent Decree _and approved by
EPA, and any amendments thereto.
"Remedial Design" shall mean those activities to be undertaken
by the Settling Defendant to develop the final plans and
specifications for the Remedial Action pursuant to the Remedial
Design Work Plan.
"Remedial Design Work Plan" shall mean the document developed
pursuant to Paragraph 11 of this Consent Decree and approved by
EPA, and any amendments thereto.
"Section" shall mean a portion of this Consent Decree
identified by a roman numeral.
"Settling Defendant" shall mean the Party identified in
Appendix E (Owner Settling Defendant).
"Sewage Sludge" means solid, semisolid,. or liquid residue
removed during the treatment of municipal waste water, domestic
sewage, or other waste water at or by publicly owned or federally
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owned treatment works.
"Site" shall mean the General Electric/Shepherd Farm Superfund
Site, encompassing three property_parcels located near the-
intersection of Spartarburg Highway and Tabor Road in
Hendersonville, Henderson County, North Carolina, and depicted
generally on the map attached as Appendix C.
"State" shall mean the State of North Carolina.
"Statement of Work" or "SOW" shall mean the statement-of work
for implementation of the Remedial Design, Remedial Action; and
Operation and Maintenance at the.Site, as set forth in Appendix B
to this Consent Decree and any modifications made in accordance
with this Consent Decree.
"Supervising Contractor" shall mean the principal contractor
retained by the Settling Defendant to supervise and direct the
implementation of the Work under this Consent Decree.
"United States" shall mean the United States of America.
"Waste Material" shall mean (1) any "hazardous substance"
under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any
pollutant or contaminant under Section-101(33), 42 U.S.C. I § 9601 (33); and any "solid waste" under Section 1004 (27) of
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RCRA, 42 U.S.C. § 6903(27).
"Work" shall mean all activities Settling Defendant is
required to perform under this Consent Decree, except those
required by Section XXV (Retention of Records).
V. GENERAL PROVISIONS
5. Objectives of the Parties
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· The objectives of the Parties. in entering into this Consent
Decree are to protect public health or welfare or the environment
at the Site by the design and implementation of response actions
at the Site by the Settling Defendant, to reimburse response
costs of the Plaintiff, and to resolve the claims of Plaintiff
against Settling Defendant as provided in this Consent Decree.
6. Commitments by Settling Defendant
a. Settling Defendant shall finance and perform the Work
in accordance with this Consent Decree, the ROD, the sow, and all
work plans and other plans, standards, specifications, and
schedules set forth herein or developed by Settling Defendant and
approved by EPA pursuant to this Consent Decree. Settling
Defendant shall also reimburse the United States for Past
Re_sponse Costs. and Future Response Costs as provided in this
Consent Decree.
b. The obligations of Settling Defendant to finance and
perform the Work and to pay amounts owed the United States under
this Consent Decree are joint and several. In the event of the
insolvency or other failure of any one or more Settling Defendant
to implement the requirements of this Consent Decree, the
remaining Settling Defendant shall complete all such
requirements.
7. Compliance With Applicable Law
All activities undertaken by Settling Defendant pursuant to
this Consent Decree shall be performed in accordance with the
requirements of all applicable federal and state laws and
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regulations. Settling Defendant must also comply with all
applicable or relevant and appropriate requirements of all
Federal and state environmental laws as set forth in the ROD and
the sow. The activities conducted pursuant to this Consent
Decree, if approved by EPA, shall be considered to be consistent
with the NCP.
8. Permits
a. As provided in Section 121(e) of CERCLA and Section
300.400(e) of the NCP, no permit shall be required for any-
portion of the Work conducted entirely on-site (i.e., within the
areal extent of contamination or in very close proximity to the
contamination and necessary for implementation of the Work).
Where any portion of the Work that is not on-site requires a
-f_ederal or state permit or approval, Settling Defendant shall
submit timely and complete applications and take all other
actions necessary to obtain all such permits or approvals.
b. The Settling Defendant may seek relief under the
provisions of Section XVIII (Force Majeure) of this Consent
Decree for any delay in the performance of the Work resulting
from a failure to obtain, or a delay in obtaining, any permit
required for the Work.
c. This Consent Decree is not, and shall not be
construed to be, a permit issued pursuant to any federal or state
statute or regulation.
9. Notice of Obligations to Successors-in-Title
a. Within 15 days after the entry of this Consent
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Decree, the Owner Settling Defendant shall record notice of the
entry of this Consent Decree with the Recorder's Office or
Registry of Deeds or other appropriate office, Henderson County,
State of North Carolina. Thereafter, each deed, title, or other
instrument conveying an interest in the 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.
b. The obligations of each Owner Settling Defendant with·
respect to the provision of access under Section IX (Access) and
the implementation of institutional controls under Section IX
shall be binding upon any and all such Settling Defendant and any
and all persons who subsequently acquire any such interest or I portion thereof (hereinafter "Successors-in-T_itle"). Within 15
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days after the entry of this Consent Decree, each Owner Settling
Defendant shall record at the Recorder's Office or Registry of
Deeds or other appropriate office where land ownership and
transfer records are maintained for the property a notice of
obligation to provide access under Section IX (Access) and
related covenants, if any. Each subsequent instrument conveying
an interest to any such property included in the Site shall
reference the recorded location of such notice and covenants
applicable to the property.
c. Any Owner Settling Defendant and any Successor-in-
Title shall, at ·1east 30 days prior to the conveyance of any such
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interest, give written notice of this Consent Decree to the
grantee and written notice to EPA of the proposed conveyance,
including 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 Defendant• s
obligations under this Consent Decree, including its obligations
to provide or secure access pursuant to Section IX, shall
continue to be met by the Settling Defendant. In addition, if
the United States approves, the grantee may .. perform some or all
of the work under this Consent Decree. In no event shall the
conveyance of an interest in property that includes, or is a
portion of, the Site release or otherwise affect the liability of
the Settling Defendant to comply with the Consent Decree.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANT
10. Selection of Supervising Contractor.
a. All aspects of the Work to be performed by Settling
Defendant pursuant to Sections VI (Performance of the _Work by
Settling Defendant), VII (Remedy Review), VIII (Quality
Assurance, Samplin~ and Data Analysis), and XV (Emergency
Response) of this Consent Decree shall be under the direction and
supervision of the Supervising Contractor, the selection of which
shall be subject to disapproval by EPA. Within 10 days after the
lodging of this Consent Decree, Settling Defendant shall notify
EPA in writing of the name, title, and qualifications of any
contractor proposed to be the Supervising Contractor. EPA will
issue a notice of disapproval or an authorization to proceed. If
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at any time thereafter, Settling Defendant proposes to change a
Supervising Contractor, Settling Defendant shall give such notice
to EPA and must obtain an·authorization to proceed from EPA
before the new Supervising contractor performs, directs, or
supervises any Work under this Consent Decree.
b. If EPA disapproves a proposed Supervising Contractor,
EPA will notify Settling Defendant in writing. Settling
Defendant shall submit to EPA a list of contractors, including
the qualifications of each contractor, that would be accept:able
to them within 30 days of receipt of EPA's disapproval of the
contractor previously proposed. EPA will provide written notice
of the names of any contractor(s) that it disapproves and an
authorization to proceed with respect to any of the other
contractors. Settling Defendant may select any contractor from
that list that is not disapproved and shall notify EPA of the
name of the contractor selected within 21 days of EPA's
authorization to proceed.
c. If EPA fails to provide written notice of its
authorization to proceed or disapproval as provided in this
Paragraph and this failure prevents the Settling Defendant from
meeting one or more deadlines in a plan approved by the EPA
pursuant to this Consent Decree, Settling Defendant may seek
relief under the provisions of Section XVIII (Force Majeure)
hereof.
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11. Remedial Design.
a. Within 90 days after EPA's issuance of an
authorization to proceed pursuant to Paragraph 10, Settling
Defendant shall submit to EPA and the State a work plan for the
design of the Remedial Action at the Site ("Remedial Design Work
Plan" or "RD Work Plan"). The Remedial Design Work Plan shall
provide for design of the remedy set forth in the ROD, in
accordance with the SOW and for achievement of the Performance
Standards and other requirements set forth in the ROD, this I Consent Decree and/or the SOW. Upon its approval by EPA, the
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Remedial Design work Plan shall be incorporated into and become
enforceable under this Consent Decree. Within 90 days after
EPA's issuance of an authorization to proceed, the Settling
Defendant shall submit to EPA and. the State a Health and Safety
Plan for field design activities which conforms to the applicable
Occupational Safety and Health Administration and EPA
requirements including, but not limited to, 29 C.F.R. § 1910.120.
b. The Remedial Design Work Plan shall include plans and
schedules for implementation of all remedial design and pre-
design tasks identified in the SOW, including, but not limited
' to, plans and schedules for the completion of•:. ( 1) a Sampling and
Analysis Plan (including, but not limited to, a Quality Assurance
Project Plan (QAPP) in accordance with Section VIII (Quality
Assurance, Sampling and Data Analysis)); (2·) a preliminary design
submittal; and (3) a pre-final/final design submittal. In
addition, the Remedial Design Work Plan shall include a schedule
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for completion of the Remedial Action Work Plan.
c. Upon approval of the Remedial Design work Plan by
EPA, after a reasonable opportunity for·review and comment by the
State, and submittal of the Health and Safety Plan for all field
activities to EPA and the State, Settling Defendant shall
implement the Remedial Design Work Plan. The Settling Defendant
shall submit to EPA and the State all plans, submittals and other
deliverables required under the approved Remedial Design Work
Plan in accordance with the approved schedule for review and
approval pursuant to Section XI (EPA Approval of Plans and Other
Submissions). Unless otherwise directed by EPA, Settling
Defendant shall not commence further Remedial Design activities
at the Site prior to approval of the Remedial Design Work Plan: I d. The preliminary design submittal shall include, at a 0 minimum, the following: (1) design criteria; (2) results of
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treatability studies; (3) results of additional field sampling
and pre-design work; (4) project delivery strategy; (5)
preliminary plans, drawings and sketches; (6) required
specifications in outline form; and (7) preliminary construction
schedule.
e. The intermediate design submittal, if required by EPA
or if independently submitted by the Settling Defendant, shall be
a continuation and expansion of the preliminary design. Any
value engineering proposals must be identified and evaluated
during this review.
f. The pre-final/final design submittal shall include,
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at a minimum, the following: (1) final.plans and specifications;
(2) Operation and Maintenance Plan; (3) Construction Quality
Ass;urance l?roj~ct Plan (CQAPP); (4) Field Sampling Plan· (directed·
at measuring progress towards. meeting Performance Standards);·and
(5) Contingency Plan. Th~ CQAPP, which shall detail the approach
to quality assurance during construction activities at the Site,
shall specify a quality assurance official ("QA Official"),
independent of the Supervising Contractor, to conduct a quality.
assurance program during the construction phase of the proj-ect.
12. Remedial Action.
a. Concurrent with the submittal of the pre-final/final
design, Settling Defendant shall submit to EPA and the State, a
work plan for the performance of the Remedial Action at the Site
-("Remedial Action Work Plan"). The Remedial Action Work Plan
shall provide for construction and implementation of the remedy
set forth in the ROD and achievement of the Performance
Standards, in accordance with this Consent Decree, the ROD, the
SOW, and the design plans and specifications developed in
accordance with the Remedial Design Work Plan and approved by
EPA. Upon its approval by EPA, the Remedial Action Work Plan
shall be incorporated into and become enforceable under this
Consent Decree. At the same time as it submits the Remedial
Action Work Plan, Settling Defendant shall submit to EPA and the
State a Health and Safety Plan for field activities required by,
the Remedial Action Work Plan which conforms to the applicable
Occupational Safety and Health Administration and EPA
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requirements including, but not limited to, 29 C.F.R. § 1910.120.
b. The Remedial Action work Plan shall include the
following: (1) the schedule for completion of the Remedial
Action; (2) method for selection of the construction contractor;
(3) schedule for developing and submitting other required
Remedial Action plans; (4) a Project Delivery Strategy; (5) a
Construction Management Plan; and (6) a Construction Quality
Assurance Plan.
c. Upon approval of the Remedial Action Work Plan·by
EPA, Settling Defendant shall implement the activities required
under the Remedial Action Work Plan. The Settling Defendant
shall submit to EPA and the State all plans, submittals, or other
deliverables required under the approved Remedial Action Work
_Plan in accordance with the approved schedule for review and
approval pursuant to Section XI (EPA Approval of Plans and Other
Submissions). Unless otherwise directed by EPA, Settling
Defendant shall not commence physical Remedial Action activities
at the Site prior to approval of the Remedial Action Work Plan.
13. The Settling Defendant shall continue to implement the
Remedial Action and O&M until the Performance Standards are
achieved and for so long thereafter as is otherwise required
under this Cbnserit Decree.
14. Modification of the SOW or Related Work Plans.
a. If EPA determines that modification to the work I specified in the SOW and/or in work plans developed pursuant to
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Standards or t~ carry out and maintain the effectiveness of the
remedy set forth in the ROD, EPA.may require that such
modification be incorporated in the .. sow,,arid/or such work plans'.
Provided, .however, that a modification may only be required
pursuant to this Paragraph to the extent that it is consistent.
with the scope of the remedy selected in the ROD .
b. For the purposes of this Paragraph 14 and Paragraphs
49 and 50 only, the •scope of the remedr selected in the ROD" is:
i. excavation of soil and construction of on-site
cap;
ii. groundwater in-situ treatment and extraction
and treatment; and,
iii. completion of groundwater and surface water
monitoring program.
c. If Settling Defendant objects to any modification
determined by EPA to be necessary pursuant to this Paragraph, it
may seek dispute resolution pursuant to Section XIX (Dispute
Resolution), Paragraph 67 (record review). The SOW and/or
related work plans shall be modified in accordance with final
resolution of the dispute.
d. Settling Defendant shall implement any work required
by any modifications incorporated in the SOW and/or in work plans
developed pursuant to the SOW in accordance with this Paragraph;
e. Nothing in this Paragraph shall be construed to
limit EPA's authority to require performance of further response
actions as otherwise provided in this Consent Decree.
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15. Settling Defendant acknowledges and agrees that nothing
in this Consent Decree, the SOW, or the Remedial Design'or
Remedial Action Work Plans constitutes .. a .warranty or .
representation of any_kind by Plaintiff that compliance with the
work requirements set forth in the SOW and the Work Plans will
achieve the Performance Standards.
16. Settling Defendant shall, prior to any off-Site shipment
of Waste Material from the Site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving
facility's state and to the EPA Project Coordinator of such
shipment of Waste Material. However, this notification
requirement shall not apply to any off-Site shipments when the
total volume of all such shipments will not exceed 10 cubic
yards.
a. The Settling Defendant shall include in the written
notification the following information, where available: (1) the
name and.location of the facility to which the Waste Material are
to be shipped; (2) the type and quantity of the Waste Material to
be shipped; (3) the expected schedule for the shipment of the
Waste Material; and (4) the method of transportation. The
Settling Defendant shall notify the state in which the planned
receiving facility is located of major changes in the shipment
plan, such as a decision to ship the Waste Material to another
facility within the same state, or to a facility in another
state.
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b. The identity of the receiving facility and state will
be determined by'the Settling Defendant following the award of
the contract for Remedial Action construction. The Settling
Defendant shall provide the information required by Paragraph
16.a as soon as practicable after the award of the contract and
before the Waste Material is actually shipped.
VII. REMEDY REVIEW
17. Periodic Review. Settling Defendant shall conduct any
studies and investigations as requested by EPA, in order to
permit EPA to conduct reviews of whether the Remedial Action is
protective of human health and the environment at least every
five years as required by Section 121(c) of CERCLA and any
applicable regulations.
18. EPA Selection of Further Response Actions. If EPA
determines, at any time, that the Remedial Action is not
protective of human health and the environment, EPA may select
further response actions for the Site in accordance with the
requirements of CERCLA and the NCP.
19. Opportunity To Comment. Settling Defendant and, if
required by Sections 113(k) (2) or 117 of CERCLA, the public, will
be provided with an opportunity to comment on any further
response actions proposed by EPA as a result of the review
conducted pursuant to Section 121(c) of CERCLA and to submit
written comments for the record during the comment period.
20. Settling Defendant's Obligation To Perform Further
Response Actions. If EPA selects further response actions for
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the Site, the Settling Defendant shall undertake such further
response actions to the extent that the reopener conditions in
Paragraph 82 or Paragraph 83 (United States' reservations of
liability based on unknown conditions or new information) are
satisfied. Settling Defendant may invoke the procedures set
forth in Section XIX (Dispute Resolution) to dispute (1) EPA's
determination that the reopener conditions of Paragraph 82 or
Paragraph 83 of Section XXI (Covenants Not To Sue by Plaintiff)
are satisfied, (2) EPA's determination that the Remedial Action
is not protective of human health and the environment, or (3)
EPA's selection of the further response actions. Disputes
pertaining to whether the Remedial Action is protective or to
EPA's selection of further response actions shall be resolved
pursuant to Paragraph 67 (record review).
21. Submissions of Plans. If Settling Defendant is required
to perform the further response actions pursuant to Paragraph 20,
it shall submit a plan for such work to EPA for approval in
accordance with the procedures set forth in Section VI
(Performance of the Work by Settling Defendant} and shall
implement the plan approved by EPA in accordance with the
provisions of this Decree.
VIII. QUALITY ASSURANCE, SAMPLING, and DATA ANALYSIS
22. Settling Defendant shall use quality assurance, quality
control, and chain of custody procedures for all samples in
accordance with "EPA Requirements for Quality Assurance Project
Plans for Environmental Data Operation," (EPA QA/RS}; "Preparing
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Perfect Project Plans," (EPA /600/9-88/087), and subsequent
amendments to such guidelines upon notification by EPA to
Set_:tling Defendant of such amendment. Amended guidelines shall
apply only to procedures conducted after such notification.·
Prior.to the commencement of any monitoring project under this
Consent Decree, Settling Defendant shall submit to EPA for
' approval, after a reasonable opportunity for review and comment
by.the State, a Quality Assurance Project Plan ("QAPP") that is
consistent with the sow, the NCP and applicable guidance
documents. If relevant to the proceeding, the Parties agree that
validated sampling data generated in accordance with the QAPP(s)
and reviewed and approved by EPA shall be admissible as evidence,
without objection, in any proceeding under this Decree. Settling
Defendant shall ensure that EPA personnel and its authorized
representatives are allowed access at reasonable times to all
laboratories utilized by Settling Defendant in implementing this
Consent Decree.· In addition, Settling Defendant shall ensure
that such laboratories shall analyze all samples submitted by EPA
pursuant to the QAPP for quality assurance monitoring. Settling
Defendant shall ensure that the laboratories it utilizes for the
analysis of samples taken pursuant to this Decree perform all
analyses according to accepted EPA methods. Accepted EPA methods
consist of those methods which are documented in the "Contract
Lab Program Statement of Work for Inorganic Analysis" and the
"Contract Lab Program Statement of Work for Organic Analysis,"
dated February 1988, and any amendments made thereto during the
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course of the implementation of this Decree. Settling Defendant
shall ensure that all laboratories it uses for analysis of
samples taken pursuant to this Consent Decree participate in an
EPA or EPA-equivalent QA/QC program. Settling Defendant shall
ensure that all field methodologies utilized in collecting
samples for subsequent analysis pursuant to this Decree will be
conducted in accordance with the procedures set forth in the QAPP
approved by EPA.
23. Upon request, the Settling Defendant shall allow split or
duplicate samples to be taken by EPA or its authorized
representatives. Settling Defendant shall notify EPA not less
than 30 days in advance of any sample collection activity unless
shorter notice is agreed to by EPA. In addition, EPA shall have
th_e right to take any additional samples that EPA deem necessary.
Upon request, EPA shall allow the Settling Defendant to take
split or duplicate samples of any samples it takes as part of the
Plaintiff's oversight of the Settling Defendant's implementation
of the Work.
24. Settling Defendant shall submit to EPA 3 copies of the
results of all sampling and/or tests or other data obtained or
generated by or on behalf of Settling Defendant with respect to
the Site and/or the implementation of this Consent Decree unless
EPA agrees otherwise.
25. Notwithstanding any provision of this Consent Decree, the
United States hereby retains all of its information gathering and
inspection authorities and rights, including enforcement actions
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related thereto, under CERCLA, RCRA and·any other applicable
statutes or regulations.
IX. ACCESS AND INSTITUTIONAL CONTROLS ,;.,-.. ·
26. Conunencing upon the date of lodging of this Consent
Decree, the Settling Defendant agree to provide the United States
and.its representatives, including EPA and its contractors,
access at all reasonable times to the Site and any other property
to which access is required for the implementation of this
Consent Decree, to the extent access to the property is
controlled by Settling Defendant, for the purposes of conducting
any activity related to this Consent Decree including, but not
limited to:
a. Monitoring the Work;
b. Verifying any data or information submitted to the
United States;
c. Conducting investigations relating to contamination
at or near the Site;
d. Obtaining samples; I e. Assessing the need for, planning, or implementing I additional response actions at or near the Site;
f. Inspecting and copying records, operating logs, I contracts, or other documents maintained or generated by Settling
Defendant or its agents, consistent with Section XXIV; and I
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g. Assessing Settling Defendant's compliance with this
Consent Decree.
27. To the extent that the Site or any other property to
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which access is required for the implementation of this Consent
Decree is owned or controlled by persons other than Settling
Defendant, Settling Defendant shall use best efforts to secure
_from such persons acc'ess for.Settling Defendant, as well as for
the United States and its repre.sentatives, including, but not
limited to, its contractors, as necessary to effectuate this I••• Consent Decree. For purposes ·of this Paragraph "best efforts"
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includes the payment of reasonable sums of money in consideration
of access. .r·f any access required to complete the Work is -not
obtained within 45 days of the date of lodging of this Consent
Decree, or within 45 days of the date EPA notifies the Settling
Defendant in writing that additional access beyond that
previously secured is necessary, Settling Defendant .shall
promptly notify the United States in writing, and shall include
in that notification a summary of the steps Settling Defendant
have taken to attempt to obtain access. The United States may,
as it deems appropriate, assist Settling Defendant in obtaining
access. Settling Defendant shall reimburse the United States, in
accordance with the procedures in Section XVI (Reimbursement of
Response Costs), for all costs incurred by the United States in
obtaining access.
28. Notwithstanding any provision of this Consent Decree, the
United States retains all of its access authorities and rights,
including enforcement authorities related thereto, under CERCLA,
RCRA and any other applicable statute or regulations.
29. As a part of the remedy, EPA will be requiring
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institutional controls. These controls include deed restrictions
of the Site property to protect the _integrity and effectiveness
of the cap and cons.ultation by the State with EPA prior to the
issuanceof any well installation permits that may impact the
Site during the duration of the remedial design/remedial action.
X. REPORTING REQUIREMENTS
30. In addition to any other requirement of this Consent
Decree, Settling Defendant shall submit to EPA and the State
2 copies of written monthly progress reports that: (a) describe
.the actions which have been taken toward achieving compliance
with this Consent Decree during the previous month; (bl include a
summary of all results of sampling and tests and all other data
received or generated by Settling Defendant or its contractors or
agents in the previous month; (c) identify all work plans, plans
and other deliverables required by this Consent Decree completed
and submitted during the previous month; (d) describe all
actions, including, but not limited to, data collection and
implementation of work plans, which are scheduled for the next
six weeks and provide other information relating to the progress
of construction, including, but not limited to, critical path
diagrams, Gantt charts and Pert charts; (e) include information
regarding percentage of completion, unresolved delays encountered
or anticipated that may affect the future schedule for
implementation of the Work, and a description of efforts made to
mitigate those delays or anticipated d~lays; (f) include any
modifications to the work plans or other schedules that Settling
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Defendant has proposed to EPA or that have been approved by EPA;
and (g) describe all activities undertaken in support of the
Community Relations Plan during the previous month and those to
be undertaken in the next six weeks. Settling Defendant shall
submit these progress reports to EPA and the State by the tenth
day of every month following the lodging of this Consent Decree
until EPA notifies the Settling Defendant pursuant to Paragraph
49.b of Section XIV (Certification of Completion). If requested
by EPA·, Settling Defendant shall also provide briefings for EPA
to discuss the progress of the Work.
31. The Settling Defendant shall notify EPA of any change in
the schedule described in the monthly progress report for the
performance of any activity, including, but not limited to, data
collection and implementation of work plans, no later than seven
days prior to the performance of the activity.
32. Upon the occurrence of any event during performance of
the Work that Settling Defendant is required to report pursuant
to Section 103 of CERCLA or Section 304 of the Emergency Planning
and Community Right-to-know Act (EPCRA), Settling Defendant shall
within 24 hours of the onset of such event orally notify the EPA
Project Coordinator or the Alternate EPA Project Coordinator (in
the event of the unavailability of the EPA Project Coordinator),
or, in the event that neither the EPA Project Coordinator or
Alternate EPA Project Coordinator is ·available, the Emergency
Response Section, Region 4, United States Environmental
Protection Agency. These reporting requirements are in addition
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to the reporting required by CERCLA Section 103 or EPCRA Section
304.
33. Within 20 days of the onset of such an event, Settling
Defendant shall furnish to Plaintiff a written report, signed by
the Settling Defendant's Project Coordinator, setting forth the
events which occurred and the measures taken, and to be• taken, in
response thereto. Within 30 days of the conclusion of such an
event, Settling Defendant shall submit a report setting forth all
actions taken in response thereto.
34. Settling Defendant shall submit 12 copies, or a lesser
amount subsequently determined by EPA, of all plans, reports, and
data required by the SOW, the Remedial Design Work Plan, the
Remedial Action Work Plan, or any other approved plans to EPA in
accordance with the schedules set forth in such plans. Settling
Defendant shall simultaneously submit 5 copies of·all such plans,
reports and data to the State.
35. All reports and other documents submitted by Settling
Defendant to EPA (other than the monthly progress rep9rts
referred to above) which purport to document Settling Defendant's
compliance with the terms of this Consent D_ecree shall be signed
by an authorized representative of the Settling Defendant.
XI. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS
36. After review of any plan, report or other item which is
required to be submitted for approval pursuant to this Consent
Decree, EPA, after reasonable opportunity for review and comment
by the State, shall: (a) approve, in whole or in part, the
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submission; (b) approve the submission upon specified conditions;
(c) modify the submission to cure the deficiencies; (d)
disapprove, in whole or in pa_rt, the submission, directing that
the Settling Defendant modify the submission; or (el any
combination of the above. However, EPA shall not modify a
submission without first providing Settling Defendant at least
· one notice of deficiency and an opportunity to cure within 30
days, except where to do so would cause serious disruption to the
Work or where previous submission(s) have been disapproved-due to
material defects and the deficiencies in the submission under
consideration indicate a bad faith lack of effort to submit an
acceptable deliverable.
37. In the event of approval, approval upon conditions, or
modification by EPA, pursuant to Paragraph 35(a), (b), or (c),
Settling Defendant shall proceed to take any action required by
the plan, report, or other item, as approved or modified by EPA
subject only to its right to invoke the Dispute Resolution
procedures set forth in section XIX (Dispute Resolution) with
respect to the modifications or conditions made by EPA. In the
event that EPA modifies the submission to cure the deficiencies
pursuant to Paragraph 35(c) and the submission has a material
defect, EPA retains its right to seek stipulated penalties, as
provided in Section XX (Stipulated Penalties).
38. a. Upon receipt of a notice of disapproval pursuant to
Paragraph 36(d), Settling Defendant shall, within 14 days or such
longer time as specified by EPA in such notice, correct the
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deficiencies and resubmit the plan, report, or other item for
approval. Any stipulated penalties applicable to the submission,
as provided in Section XX, shall accrue during the 14-day period
or otherwise specified period but shall not be payable unless the
resubmission is disapproved or modified due to a material defect
as provided i~ Paragraphs 39 and 40.
b. Notwithstanding the receipt of a notice of di_sapproval
pursuant to Paragraph 36(d), Settling Defendant shall proceed, at
the direction of EPA, to take any action required by any non-
deficient portion of the submissi9n. Implementation of any non-
deficient portion of a submission shall not relieve Settling
Defendant of any liability for stipulated penalties under Section
XX (Stipulated Penalties) .
39. In the event that a resubmitted plan, report or other
item, or portion thereof, is disapproved by EPA, EPA may again
require the Settling Defendant to correct the deficiencies, in
accordance with the preceding Paragraphs. EPA also retains the
right to modify or develop the plan, report or other item.·
Settling Defendant shall implement any such plan, report, or item
as modified or developed by EPA, subject only to its right to
invoke the procedures set forth in Section XIX (Dispute
Resolution) .
40. If upon resubmission, a plan, report, or item is
disapproved or modified by EPA due to a material defect, Settling
Defendant shall be deemed to have failed to submit such plan,
report, or item timely and adequately unless the Settling
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Defendant invokes the dispute resolution procedures set forth in
Section XIX (Dispute Resolution) and EPA's action is overturned
pursuant to that Section. The provisions of Section XIX (Dispute
Resolution) and Section XX (Stipulated Penalties) shall govern
the implementation of the Work and accrual and payment of any
stipulated penalties during Dispute Resolution. If EPA's
disapproval or modification is upheld, stipulated penalties shall
accrue for such violation from the date on which the initial
submission was originally required, as provided in Section -XX.
41. All plans, reports, and other items required to be
submitted to EPA under this Consent Decree shall, upon approval
or modification by EPA, be enforceable under this Consent Decree.
In the event EPA approves or modifies a portion of a plan,
report, or other item required to be submitted to EPA under this
Consent Decree, the approved or modified portion shall be
enforceable under this Consent Decree.
XII. PROJECT COORDINATORS
42. Within 20 days of lodging this Consent Decree, Settling
Defendant and EPA will notify each other, in writing, of the
name, address and telephone number of their respective designated
Project Coordinators and Alternate Project Coordinators. If a
Project Coordinator or Alternate Project Coordinator initially
designated is changed, the identity of the successor will be
given to the other Parties at least 5 working days before the
changes occur, unless impracticable, but in no event later than
the actual day the change is made. The Settling Defendant's
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Project Coordinator shall be subject to disapproval by EPA and
shall have the technical expertise sufficient to adequately
oversee all aspects of the Work. The Settling Defendant's
Project Coordinator shall not be an attorney for any of the
Settling Defendant in this matter. He or she may assign other
representatives, including other contractors, to serve as a Site
representative for oversight of performance of daily operations
during remedial activities.
43.· Plaintiff may designate other representatives, inciuding,
but not limited to, EPA employees, and federal contractors and
consultants, to observe and monitor the progress of any activity
undertaken pursuant to this Consent Decree. EPA's Project
Coordinator and Alternate Project Coordinator shall have the
authority lawfully vested in a Remedial Project Manager (RPM) and
an On-Scene Coordinator (OSC) by the National Contingency Plan,
40 C;F.R. Part 300. In addition, EPA's Project Coordinator or
Alternate Project Coordinator shall have authority, consistent
with the National Contingency Plan, to halt any Work required by this Consent Decree and to take any necessary response action
whens/he determines that conditions at the Site constitute an
emergency situation or may present an immediate threat to public
health or welfare or the environment due to release or threatened
release of Waste Material.
44. EPA's Project Coordinator and.the Settling Defendant's
Project Coordinator will meet, at a minimum, on a monthly basis.
XIII. ASSURANCE OF ABILITY TO COMPLETE WORK
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45. Within 30 days of entry of this Consent Decree, Settling
Defendant shall establish and maintain financial security in the
amount of $650,000 in one or more of the following forms:
(a) A surety bond guaranteeing performance of the Work;
(b) One or more irrevocable letters of credit equalling
the total estimated cost of the Work;
(c) A trust fund;
(d) A guarantee to perform the Work by one or more parent
corporations or subsidiaries, or by one or more unrelated
corporations that have a substantial business relationship with
at least one of the Settling Defendant; or,
(e) A demonstration that one or more of the Settling
Defendant satisfy the requirements -of 40 C.F.R. Part 264.143(f).
46. If the Settling Defendant seek to demonstrate the ability
to complete the Work through a guarantee by a third party
pursuant to Paragraph 45(d) of this Consent Decree, Settling
Defendant shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If Settling Defendant
seeks to demonstrate its ability to complete the Work by means of
the financial test or the corporate guarantee pursuant to
Paragraph 45(d) or (e), it shall resubmit sworn statements
conveying the information ·required by 40 C.F.R. Part 264.143 (f)
annually, on the anniversary of the effective date of this
Consent Decree. In the event that EPA determines at any time
that the financial assurances provided pursuant to this Section
are inadequate, Settling Defendant shall, within 30 days of
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receipt of notice of EPA's determination, obtain and present to
EPA for approval one of the other forms of financial assurance
listed in Paragraph 45 of this Consent Decree. Settling
Defendant's inability to demonstrate financial ability to
complete the Work shall not excuse performance of any activities
required under this Consent Decree.
47. If Settling Defendant can show that the estimated cost to
complete the remaining Work has diminished below the amount set
forth in Paragraph 45 above after entry of this Consent Decree,
Settling Defendant may, on any anniversary date of entry of this
Consent Decree, or at any other time agreed to by the Parties,
reduce the amount of the financial security provided under this
Section to the estimated cost of the remaining work to be
performed. Settling Defendant shall submit a proposal for such
reduction to EPA, in accordance with the requirements of this
Section, and may reduce the amount of the security upon approval
by EPA. In the event of a dispute, Settling Defendant may reduce
the amount of the security in accordance with the final
administrative or judicial decision resolving the dispute.
48. Settling Defendant may change the form of financial
assurance provided under this Section at any time, upon notice to
and approval by EPA, provided that the new form of assurance
meets the requirements of this Section. In the event of a
dispute, Settling Defendant may change the form of the financial
assurance only in accordance with the final administrative or
judicial decision resolving the dispute.
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CERTIFICATION OF COMPLETION
49. Completion of the Remedial Action
a. Within 90 days after Settling Defendant concludes
that the Remedial Action has been fully performed and the
Performance Standards have been attained, Settling Defendant
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certification inspection, the Settling Defendant• still believes I
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that the Remedial Action has been fully performed and the
Performance Standards have been attained, it shall submit a
written report requesting certification to EPA for approval, with
a copy to the State, pursuant to Section XI (EPA Approval of
Plans and Other Submissions) within 30 days of the inspection.
In the report, a registered professional engineer and the
Settling Defendant's Project Coordinator shall state that the
Remedial Action has been completed in full satisfaction of the
requirements of this Consent Decree. The written report shall
include as-built drawings signed and stamped by a professional I engineer. The report shall contain the following statement,
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signed by a responsible corporate official of a Settling
Defendant or the Settling Defendant's Project Coordinator:
"To the best of my knowledge, after thorough investigation, I certify that the information contained in or accompanying this submission is true, accurate and complete. I am aware that there are significant penalties for submitting false information, including.the possibility of fine and imprisonment for knowing violations."
If'. after completion of the pre-certification inspection and
receipt and review of the written report, EPA, after reasonable
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opportunity to review and comment by the.State, determines that
the Remedial Action or any portion thereof has not been completed
in accordance with this Consent Decree or that the Performance
Standards have not been achieved, EPA will notify Settling
Defendant in writing of the activities that must be undertaken by
Settling Defendant pursuant to this Consent Decree to complete
the Remedial Action and achieve the Performance Standards.
Provided, however, that EPA may only require Settling Defendant
to perform such activities pursuant to this Paragraph to the
extent that such activities are consistent with the "scope of the
remedy selected in the ROD," as that term is defined in Paragraph
14.b. EPA will set forth in the notice a schedule for
performance of such activities consistent with the Consent Decree
and the SOW or require the Settling Defendant to submit a
schedule to EPA for approval pursuant to Section XI (EPA Approval
of Plans and Other Submissions). Settling Defendant shall
perform all activities described in the notice in accordance with
the specifications and schedules established pursuant to this
Paragraph, subject to its right to invoke the dispute resolution
procedures set forth in Section XIX (Dispute Resolution).
b. If EPA concludes, based on the initial or any
subsequent report requesting Certification of Completion and
after a reasonable opportunity for review and comment by the
State, that the Remedial Action has been performed in accordance
with this Consent Decree and that the Performance Standards have
been achieved, EPA will so certify in writing to Settling
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Defendant. This certification shall constitute the Certification
of Completion of the Remedial Action for purposes of chis Consent
Decree, including, but not limited to, Section XXI (Covenants Not
to Sue by Plaintiff). Certification of Completion of the
Remedial Action shall not affect Settling Defendant's obligations
under this Consent Decree.
SO. Completion of the Work
a. Within 90 days after Settling Defendant concludes
that all phases of the Work (including O & M), have been fully
perfonned, Settling Defendant shall schedule and conduce a pre-
certification inspection to be attended by Settling Defendant and
EPA. If, after the pre-certification inspection, the Settling
Defendant still believes that the Work has been fully perfonned,
Settling Defendant shall submit a written report by a regiscered
professional engineer stating that the Work has been compleced in
full satisfaction of the requirements of this Consent Decree.
The report shall contain the -following statement, signed by a
responsible corporate official of a Settling Defendant or the
Settling Defendant's Project Coordinator:
"To the best of my knowledge, after thorough investigation, I certify that the infonnation contained in or accompanying this submission is true, accurate and complete. I am aware that there are significant penalties for submitting false infonnation, including the possibility of fine and imprisonment for knowing violations."
If, after review of the written report, EPA, after reasonable
opportunity to review and comment by the State,· detennines that
any portion of the Work has not been completed in accordance with
this Consent Decree, EPA will notify Settling Defendant in
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writing of the activities that must be undertaken by Settling
Defendant pursuant to this Consent Decree to complete the Work.
Provided, however, that EPA may only require Settling Defendant
to perform such activities pursuant to this Paragraph to the
extent that such activities are consistent with the •scope of the
remedy selected in the ROD," as that term is defined in Paragraph
14.b. EPA will set forth in the notice a schedule for
performance of such activities consistent with the Consent Decree
and the SOW or require the Settling Defendant to submit a
schedule to EPA for approval pursuant to Section XI (EPA Approval
of Plans and Other Submissions). Settling Defendant shall
perform all activities described in the notice in accordance with
the specifications and schedules established therein, subject to
its right to invoke the dispute resolution procedures set forth
in Section XIX (Dispute Resolution).
b. If EPA concludes, based on the initial or any
subsequent.request for Certification of Completion by Settling
Defendant and after a reasonable opportunity for review and
comment by the State, that the Work has been performed in
accordance with this Consent Decree, EPA will so notify the
Settling Defendant in writing.
XV. EMERGENCY RESPONSE
51. In the event of any action or occurrence during the ,
performance of the Work which causes or threatens a release of
Waste Material from the Site that constitutes an emergency
situation or may present an immediate threat to public health or
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welfare or the environment, Settling Defendant shall, subject to
Paragraph 51, immediately take all appropriate action to prevent,
abate, or minimize such release or threat of release, and shall
immediately notify the EPA'~ Project Coordinator, or, if the
Project Coordinator is unavailable, EPA's Alternate Project
Coordinator. If neither of these persons is available,. the
Settling Defendant shall notify the EPA Emergency Response Unit,
Region 4; Settling Defendant shall take such actions in
consultation with EPA's Project Coordinator or other available
authorized EPA officer and in accordance with all appli~able
provisions of the Health and Safety Plans, the Contingency Plans,_
and any other applicable plans or documents developed pursuant to
the SOW. In the event that Settling Defendant fails to take
appropriate response action as required by this Section, and EPA
takes such action instead, Settling Defendant shall reimburse EPA
all costs of the response action not inconsistent with the NCP
pursuant to Section XVI (Reimbursement of Response Costs).
52. Nothing in the preceding Paragraph or in this Consent
Decree shall be deemed to limit any authority of the United
States a) to take all appropriate action to protect human health
and the environment or to prevent, abate, respond to, or minimize
an actual or threatened release of Waste Material on, at, or from
the Site, orb) to direct or order such action, or seek an order
from.the Court, to protect human health and the environment or to
prevent, abate, respond to, or minimize an actual or threatened
release of Waste Material on, at, or from the Site, subject to
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Section XXI (Covenants Not to Sue by Plaintiff).
XVI. REIMBURSEMENT OF RESPONSE COSTS
53. Within 30 days of the effective date of this Consent
Decree, Settling Defendant shall pay to the EPA Hazardous
Substance Superfund $1,024,687. 59, in reimbursement of Past
Response Costs, by FedWire Electronic Funds Transfer (")>FT" or
wire transfer) to the U.S. Department of Justice account in
accordance with current electronic funds transfer procedures,
referencing U.S.A.O. file number _____ , the full Site name,
EPA Region and Site/Spill ID #04JG, and DOJ case number ___ _
Payment shall be made in accordance with instructions provided to
the Settling Defendant by the Financial Litigation Unit of the
United States Attorney's Office for the District of North
Carolina following lodging of the Consent Decree. Any payments
received by the Department of Justice after 4:00 P.M. (Eastern
Time) will be credited on the next business day. Settling
Defendant shall send notice that such payment has been rriade to
the United States as specified in Section XXVI (Notices and
Submissions) and KimsThu Dao Vu, Enforcement Project Manager,
Waste Programs Branch, Waste Management Division, EPA -Region
IV, 345 Courtland St., N.E., Atlanta, Georgia 30365. Payments
by EFT must be received at the DOJ lockbox bank by 4:00 P.M.
(Eastern Time) to be credited on that day.
54. Settling Defendant shall reimburse the EPA Hazardous
Substance Superfund for all Future Response Costs not
inconsistent with the National Contingency Plan. The United
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States will send Settling Defendant a bill requiring payment that
includes a Superfund Cost Organization Recovery Enhancement
System (SCORES) Report on an annual basis. Settling Defendant
shall make all payments within 30 days of Settling Defendant's
receipt of each bill requiring payment, except as oth,,rwise
provided in Paragraph 55. The Settling Defendant shall make all
payments required by this Paragraph in the form of a certified or
cashier's check or checks made payable to "EPA Hazardous
Substance Supe~fund" and referencing the full Site Name, EPA
Region and Site/Spill ID #04JG, the DOJ case number ____ _
and the name and address of the party making payment. The
Settling Defendant shall serid the check(s) to the United States
Environmental Protection Agency, Region 4, Attention: Superfund
Accounting, P.O. Box 100142, Atlanta, Georgia 30384 and shall
send copies of the check(s) to the United States as specified in
Section XXVI (Notices and Submissions) and Kim-Thu Dao Vu,
Enforcement Project Manager, Waste Programs Branch, Waste
Management Division, EPA -Region IV, 345 Courtland St., N.E.,
Atlanta, Georgia 30365.
55. Settling Defendant .may contest payment of any Future
Response Costs under Paragraph 54 if it determines that the
United States has made an accounting error or if it alleges that
a cost item that is included represents costs that are
inconsistent with the NCP. Such objection shall be made in
writing within 30 days of receipt of che bill and must be sent to
the United States pursuant to Section XXVI (Notices and
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Submissions). Any such objection shall specifically identify the
contested Future Response Costs and the basis for objection. In
the event of an objection, the Settling Defendant shall within
the 30-day period pay all uncontested Future Response Costs to
the United States in the manner described in Paragraph 54.
Simultaneously, the Settling Defendant shall establish .an
interest-bearing escrow account in a federally-insured bank duly
chartered in the State of North Carolina and remit to that escrow
account funds equivalent to the amount of the contested Future
Response Costs. The Settling Defendant shall send to the United
States, as provided in Section XXVI (Notices and Submissions), a
copy of the transmittal letter and check paying the uncontested
Future Response Costs, and a copy of the correspondence that
establishes and funds the escrow account, including, but not
limited to, information containing the identity of the bank and
bank account under which the escrow account is established as
well as a bank statement showing the initial balance of the
escrow account. Simultaneously with establishment of the escrow
account, the Settling Defendant shall initiate the Dispute
Resolution procedures in Section XIX (Dispute Resolution). If
the United States prevails in the dispute, within 5 days of the
resolution of .the dispute, the Settling Defendant shall pay the
sums due (with accrued interest) to the United States in the
manner described in Paragraph. 54. If the Settling Defendant
prevails concerning any aspect of the contested costs, the
Settling Defendant shall pay that portion of the costs (plus
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associated accrued interest) for which it did not prevail to the
United States in the manner described in Paragraph 54; Settling
Defendant shall be disbursed any balance of the escrow account.
The dispute resolution procedures set forth in this Paragraph in
conjunction with the procedures set forth in Section XIX (Dispute
Resolution) shall be the exclusive mechanisms for resolving
disputes regarding the Settling Defendant's obligation to
reimburse theUnited States for its Future Response Costs.
56. In the event that the payments required by Paragraph 52
are not made within 30 days of the effective date of this Consent
Decree or the payments required by Paragraph 53 are not made
within 30 days of the Settling Defendant's receipt of the bill,
Settling Defendant shall pay Interest on the unpaid balance. The
Interest to be paid on Past Response Costs under this Paragraph
shall begin to accrue 30 days after the effective date of this
Consent Decree. The Interest on Future Response Costs shall
begin to accrue on the date of the bill. The Interest shall
accrue through the date of the Settling Defendant's payment.
Payments of Interest made under this Paragraph shall be in
addition to such other remedies or sanctions available to.
Plaintiff by virtue of Settling Defendant's failure to make
timely payments under this Section. The Settling Defendant shall
make all payments required by this Paragraph in the manner
described in Paragraph 54.
XVII. INDEMNIFICATION AND INSURANCE
57. a. The United States does not assume any liability by
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entering into this agreement or by virtue of any designation of
Settling Defendant as EPA's authorized representatives under
Section 104(e) of CERCLA. Settling Defendant shall indemnify,
save and hold harmless the United States and its officials,
agents, employees, contractors, subcontractors, or
representatives for or from any and all claims or causes of
action arising from, or on account of, negligent or other
wrongful acts or omissions of Settling Defendant, its officers,
directors, employees, agents, contractors, subcontractors, and
any persons acting on its behalf or under its control, in
carrying out activities pursuant to this Consent Decree,
including, but not limited to, any claims arising from any
designation of Settling Defendant as EPA's authorized
representatives under Section 104(e) of CERCLA. Further, the
Settling Defendant agrees to pay the United States all costs it
incurs including, but not limited to, attorneys fees and other
expenses of litigation and settlement arising from, or on account
of, claims made against the United States based on negligent or
other wrongful acts or omissions of Settling Defendant, its
officers, directors, employees, agents, contractors,
subcontractors, and any persons acting on its behalf or under its
control, in carrying out activities pursuant to this Consent
Decree. The United States shall not be held out.as a party to
any contract entered into by or on behalf of Settling Defendant
in carrying out activities pursuant to this Consent Decree.
Neither the Settling Defendant nor any such contractor shall be
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considered an agent of the United States.
b. The United States shall give Settling Defendant
notice of any claim for which the United States plans to seek
indemnification pursuant to Paragraph 57.a., and shall consult
with Settling Defendant prior to settling such claim. . 58. Settling Defendant waives all claims against the United
States for damages or reimbursement or for set-off of any
payments made or to be made to the United States, arising from or
on account of any contract, agreement, or arrangement between any
one or more of Settling Defendant and any person for performance
of Work on or relating to the Site, including, but not limited
to, claims on account of construction delays. In addition,
Settling Defendant shall indemnify and hold harmless the United
States with respect to any and all claims for damages or
reimbursement arising from or on account of any contract,
agreement, or arrangement between any one or more of Settling
Defendant and any person for performance of Work on or relating
to the Site, including, but not limited to, claims on account of
construction delays.
59.. No later than 15 days before commencing any on-site Work,
Settling Defendant shall secure, and shall maintain until the
first anniversary of EPA's Certification of Completion of the
Remedial Action pursuant to Paragraph 49.h. of Section XIV
(Certification of Completion) comprehensive general liability
insurance with limits of one million dollars, combined single
limit, and automobile liability insurance with limits of
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$500,000, combined single limit, naming the United States as an
additional insured. In addition, for the duration of this
Consent Decree, Settling Defendant shall satisfy, or shall ensure
that its contractors or subcontractors satisfy, all applicable
laws and regulations regarding the provision of worke~'s
compensation insurance for all persons perfonning the Work on
behalf of Settling Defendant in furtherance of this Consent
Decree. Prior to commencement of.the Work under this Consent
Decree, Settling Defendant shall provide to EPA certificates of
such insurance and a copy of each insurance policy. Settling
I Defendant shall resubmit such ·certificates and copies of policies
each year on the anniversary of the effective date of this
Consent Decree. If Settling Defendant demonstrates 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
Defendant need provide only that portion of the insurance
described above which is not maintained by the contractor or
subcontractor.
XVIII. FORCE MAJEURE
60. "Force maj eure, " for purposes of this Consent Decree, is
defined as any event arising from causes beyond the control of
the Settling Defendant, of any entity controlled by Settling
Defendant, or of Settling Defendant's contractors, that delays or
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prevents the performance of any obligation under this Consent
Decree despite Settling Defendant's best efforts to fulfill the
obligation. The requirement that the Settling Defendant 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 rl)ajeure
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. "Force Majeure" does not include
financial inability to complete the Work or a failure to attain
the Performance Standards.
61. If any event occurs or has .occurred that may delay the
performance of any obligation under this Consent Decree, whether
or not caused by a force majeure event, the Settling.Defendant
shall notify orally EPA's Project Coordinator or, in his or her
absence, EPA's Alternate Project Coordinator or, in the event
both of EPA's designated representatives are unavailable, the
Director of the Hazardous Waste Management Division, EPA Region
4, within 48 hours of when Settling Defendant first knew that the
event might cause a delay. Within 5 days thereafter, Settling
Defendant shall provide in writing to EPA an explanation and
description of the reasons for the delay; the anticipated
duration of the delay; all actions taken or to be taken to
prevent or minimize the delay; a schedule for implementation of
any measures to be taken to prevent or mitigate the delay or the
effect of the delay; th.e Settling Defendant's rationale for
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attributing such delay to a force majeure event if it intends to
assert such a claim; and a statement as to whether, in the
opinion of the Settling Defendant, such event may cause or
contribute to an endangerment to public health, welfare or the
environment. The Settling Defendant shall include with any
notice all available documentation supporting its claim that the
delay was attributable to a force majeure. Failure to comply
with the above requirements shall preclude Settling Defendant
from asserting any claim of force majeure for that event for the
period of time of such failure to comply, and for any additional
delay caused by such failure. Settling Defendant shall be deemed
to know of any circumstance of which Settling Defendant, any
entity controlled by Settling Defendant, or Settling Defendant's
contractors knew or should have known.
62. If EPA agrees that the delay or anticipated delay is
attributable to a force majeure event, the time for performance
of the obligations under this Consent Decree that are affected by
the force majeure event will be extended by EPA for such time as
is necessary to complete those obligations. An extension of the
time for performance of the obligations affected by the force
majeure event shall not, of itself, extend the time for
performance of any .other obligation. If EPA does not agree that
the delay or anticipated delay has been or will be caused by a
force majeure event, EPA will notify the Settling Defendant in
writing of its decision. If EPA agrees that the delay is
attributable to a force majeure event, EPA will notify the
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Settling Defendant in writing of the length of the extension,, if
any, for performance of the obligations affected by the force
rnajeure event.
63. If the Settling Defendant elects to invoke the dispute
resolution procedures set forth in Section XIX (Dispute
Resolution), it shall do so no later than 15 days after receipt
of EPA's notice. In any such proceeding, Settling Defendant
shall have the burden of demonstrating by a preponderance of the
evidence that the delay or anticipated delay has been or will be
caused by a force rnajeure event, that the duration of the delay
or the extension sought 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 Defendant
complied with the requirements of Paragraphs 60 and 61, above.
If Settling Defendant carries this burden, the delay at issue
shall be deemed not to be a violation by Settling Defendant of
the affected obligation of this Consent Decree identified to EPA
and the Court.
XIX. DISPUTE RESOLUTION
64. Unless otherwise expressly provided for in this Consent
Decree, the dispute resolution procedures of this Section shall
be the exclusive mechanism to resolve disputes arising under or
with respect to this Consent Decree. However, the procedures set
forth in this Section shall not apply to actions by the United
States to enforce obligations of the Settling Defendant that have
not been disputed in accordance with this Section.
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65. 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 informal negotiations shall not exceed 20 days from
the time the dispute arises, unless it is modified by written
agreement of .the parties to the dispute. The dispute shall be
considered to have aris·en when one party sends the other parties
a written Notice of Dispute.
66. a. In the event that the parties cannot resolve a
· dispute by informal negotiations under the preceding Paragraph,
then the position advanced by EPA shall be considered binding
unless, within 10 days after the conclusion of the informal
negotiation period, Settling Defendant invokes the formal dispute
resolution procedures of this Section by serving on the United
States a written Statement of Position on the matter in dispute,
including, but not limited to, any factual data, analysis or
opinion supporting that position and any supporting documentation
relied upon by the Settling Defendant. The Statement of Position
shall specify the Settling Defendant's position as to whether
formal dispute resolution should proceed under Paragraph 67 or
Paragraph 68.
b. Within 14 days after receipt of Settling Defendant's
Statement of Position, EPA will serve on Settling Defendant its
Statement of Position, including, but not limited to, any factual
data, analysis, or opinion supporting that position and all
supporting documentation relied upon by EPA. EPA's Statement of
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Position shall include a statement as to whether formal dispute
resolution should proceed under Paragraph 67 or 68. Within 14
days after receipt of EPA's Statement of Position, Settling
Defendant may submit a Reply.
c. If there is disagreement between EPA and the Settling
Defendant as to whether dispute resolution should proceed under
Paragraph 67 or 68, the parties to the dispute shall follow the
procedures set forth in the paragraph determined by EPA to be
applicable. However, if the Settling Defendant ultimately
appeals to the Court to resolve the dispute, the Court shall
determine which paragraph is applicable in accordance with the
standards of applicability set forth in Paragraphs 67 and 68.
67. Formal dispute resolution for disputes pertaining to the
selection or adequacy of any response action and all other
disputes that are accorded review on the administrative record
under applicable principles of administrative law shall be
conducted pursuant to the procedures set forth in this Paragraph.
For purposes of this Paragraph, the adequacy of any response
action, includes, without limitation: (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 the performance of response actions taken
pursuant to this Consent Decree. Nothing in this Consent Decree
shall be construed to allow any dispute by Settling Defendant
regarding the validity of the ROD'S provisions.
a. An administrative record of the dispute shall be
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maintained by EPA and shall contain all statements of position,
including supporting documentation, submitted pursuant to this
Section. Where appropriate, EPA may allow submission of
supplemental statements of position by the parties to the
dispute.
b. The Director of the Waste Management Division, EPA
Region 4, will issue· a final administrative decision resolving
the dispute based on the administrative record described in
Paragraph 67.a. This decision shall be binding upon the Settling
Defendant, subject only to the right to seek judicial review
pursuant to Paragraph 67.c. and d.
c. Any administrative decision made by EPA pursuant to
Paragraph 67.b. shall be reviewable by this Court, provided that
a motion for judicial review of the decision is filed by the
Settling Defendant with the Court and served on all Parties
within 10 days of receipt of EPA's decision. The motion shall
include a description of 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. The United
States may fil~ ~ response to Settling Defendant's motion.
d. In proceedings on any dispute governed by this
Paragraph, Settling Defendant shall have the burden of
demonstrating that the decision of the Waste Management Division
Director is arbitrary and capricious or otherwise not in
accordance with law. Judicial review of EPA's decision shall be
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on the administrative record compiled pursuant to Paragraph 67.a.
68. Formal dispute resolution for disputes that neither
pertain to the selection or adequacy of any response action nor
are otherwise accorded review on the administrative record under
applicable principles of administrative law, shall be governed by
this Paragraph.
a. Following receipt of Settling Defendantfs Statement
of Position submitted pursuant to Paragraph 66, the Director of
the Waste Management Division, EPA Region 4 shall issue a
decision resolving the dispute. The Waste Management Division
Director's decision shali be binding on the Settling Defendant
unless, within 10 days of receipt of the decision, the Settling
Defendant files with the Court and serves on the parties a motion
for judicial review of the decision 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 the
Consent Decree. The United States may file a response to
Settling Defendant's motion.
b. Notwithstanding Paragraph M of Section I
(Background) of this Consent Decree; judicial review of any
dispute governed by this Paragraph shall be governed by
applicable principles of law.
69. The invocation of formal dispute resolution procedures
under this Section shall not extend, postpone or affect in any
way any obligation of t.he Settling Defendant under this Consent
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Decree, not directly in dispute, unless EPA or the .court agrees
otherwise. Stipulated penalties with respect to the disputed
matter shall continue to accrue but payment shall be stayed
pending resolution of the dispute as provided in Paragraph 78.
Notwithstanding the stay of payment, stipulated penalties shall
accrue from the first day of noncompliance with any applicable
provision of this Consent Decree. In the event that the Settling
Defendant does not prevail on the disputed issue, stipulated
penalties shall be assessed and paid as provided in Section XX
(Stipulated Penalties).
XX. STIPULATED PENALTIES
70. Settling Defendant shall be liable for stipulated
penalties in the amounts set forth in Paragraphs 71 and 72 to the
United States for failure to comply with the requirements of this
Consent Decree specified below, unless excused under Section
XVIII (Force Majeure). "Compliance" by Settling Defendant shall
include completion of the activities under this Consent Decree or
any work plan or other plan approved under this Consent Decree
identified below in accordance with all applicable requirements
of law, this Consent Decree, the sow, and any plans or other
documents approved by EPA pursuant to this Consent Decree and
within the specified time schedules established by and approved
under this Consent Decree.
71. a. The following stipulated penalties shall accrue per
violation per day for any noncompliance identified in
Subparagraph b:
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Penalty Per Violation Period of Noncomgliance Per Day
$1,000 1st through 7th day
$1,500 8th through 15th day
$2,500 16th through 30th day
$4,000 31st day and beyond
b. The above penalties shall apply for late submittals,
late resubmittals and modifications, and activities not completed
under the following documents: Preliminary Design submittal;
Remedial Design Work Plan; Prefinal/Final Design submittal;
Remedial Action Work Plan; and Operation and Maintenance Plan.
In addition, the above stipulated penalties shall apply to
noncompliance with: establishment of a trust fund; procurement of
required insurance; and hiring of a contractor; and timely
reimbursement of EPA response and oversight costs.
72. The following stipulated penalties shall accrue per
violation per day for failure to submit timely or adequate
reports or other written documents pursuant to Paragraphs 30-35:
Penalty Per Violation Period of Noncomgli9nce Per Day
$500 1st through 7th day
$1,000 8th through 15th day
$2,000 16th through 30th day
$3,500 31st day and beyond
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73. In the event that EPA assumes performance of a portion or
all of the Work pursuant to Paragraph 86 of Section XXI
(Covenants Not to Sue by Plaintiff), Settling Defendant shall be
liable for a stipulated penalty in the amount of $50,000.
74. All penalties shall begin to accrue on the day after the
complete perfonnance is due or the day a violation occurs, and
shall continue to accrue through the final· day of the ·correction
of the noncompliance or completion of the activity. However,
stipulated penal ties shall not accrue: ( 1) with respect to a
deficient submission.under Section XI (EPA Approval of Plans and
Other Submissions), during the period, if any, beginning on the
31st day after EPA's receipt. of such submission until the date
that EPA notifies Settling Defendant of any deficiency; (2) with
respect to a decision by the Director of the Waste Management
Division, EPA Region 4, under Paragraph 67.b. or 68.a. of Section
XIX (Dispute Resolution), during the period, if any; beginning on
the 21st day after the date that Settling Defendant's reply to
EPA's Statement of Position is received until the date that the
Director issues a final decision regarding such dispute; or (3)
with respect to judicial review by this Court of any dispute
under Section XIX (Dispute Resolution), during the period, if
any, beginning on the 31st day after the Court's receipt of the
final submission regarding the dispute until the date that the
Court issues a final decision regarding such dispute. Nothing
herein shall prevent the simultaneous accrual of separate
penalties for separate violations of this Consent Decree.
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75. Following EPA's determination that Settling Defendant has
failed to comply with a requirement of this Consent Decree, EPA
may give Settling Defendant written notification of the same and
describe the noncompliance. EPA may send the Settling Defendant
a written demand for the payment of the penalties. However,
penalties shall accrue as provided in the preceding Paragraph
regardless of whether EPA has notified the Settling Defendant of
a violation.
76·. All penalties accruing under this Section shall be due
and payable to the United States within 30 days of the Settling
Defendant's receipt from EPA of a demand for payment of the
penalties, unless Settling Defendant invokes the Dispute
Resolution procedures under Section XIX (Dispute Resolution)
All payments to the United States under this Section shall be
paid by certified or cashier's check(s) made payable to "EPA
Hazardous Substances Superfund," shall be mailed to the United
States Environmental Protection Agency, Region 4, Attention:
Superfund Accounting, P.O. Box 100142, Atlanta, Georgia 30384,
shall indicate that the payment is for stipulated penalties, and
shall reference the full Site.name, EPA Region and Site/Spill ID·
#04JG, the DOJ Case Number ________ , and the name and
address of the party making payment. Copies of check(s) paid
pursuant to this Section, and any accompanying transmittal
letter(s), shall be sent to the United States as provided in
Section XXVI (Notices and Submissions), and to Kim-Thu Dao Vu,
Enforcement Project Manager, Waste Programs Branch, Waste
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Management Division, EPA -Region IV, 345 Courtland St., N.E.,
Atlanta, Georgia 30365.
77. The payment of penalties shall not alter in any way
Settling Defendant's obligation to complete the perforrnanc_e of
the Work required under this Consent Decree.
78. Penalties shall continue to accrue as provided .in
Paragraph 74 during any dispute resolution period, but need not
be paid until. the following:
a. If the dispute is resolved by agreement or by a
decision of EPA that is not appealed to this Court, accrued
penalties determined to be owing shall be paid to EPA within 15
days of the agreement or the receipt of EPA's decision or order;
b. If the dispute is appealed to this Court and the
United States prevails in whole or in part, Settling Defendant
shall pay all accrued penalties determined by the Court to be
owed to EPA within 60 days of receipt of the Court's decision or
·order, except as provided in Subparagraph c below;
c. If the District Court's decision is appealed by any
Party, Settling Defendant shall pay all accrued penalties
determined by the District Court to be owing to the United States
into an interest-bearing escrow account within 60_ days of receipt
of the Court's decision or order. Penalties shall be paid into
this account as they continue to accrue, at least every 60 days.
Within 15 days of receipt of the final appellate court decision,
the escrow agent shall pay the balance of the account to EPA or
to Settling Defendant to the extent that it prevails.
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79. a. If Settling Defendant fails to pay stipulated
penalties when due, the United States may institute proceedings
to collect the penalties, as well as interest. Settling
Defendant shall pay Interest on the unpaid balance, which shall
begin to accrue on the date of demand made pursuant to Paragraph
76.
b. Nothing in this Consent Decree shall be construed as
prohibiting, altering, or in any way limiting the ability of the
United States to seek any other remedies or sanctions available
by virtue of Settling Defendant's violation of this Decree or of
the statutes and regulations upon which it is based, including,
but not limited to, penalties pursuant to Sectio.n 122 (1) of
CERCLA. Provided, however, that the United States shall not seek
civil penalties pursuant to Section 122(1) of CERCLA for any
violation for which a stipulated penalty is provided herein,
except in the case of a willful violation of the Consent Decree.
80. Notwithstanding any other provision of this Section, the
United Stat~s may, in its unreviewable discretion, waive any
portion of stipulated penalties that have accrued pursuant to
this Consent Decree.
XXI. COVENANTS NOT TO SUE BY PLAINTIFF
81. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendant
under the terms of the Consent Decree, and except as specifically
provided in Paragraphs 82, 83, and 85 of this Section, the United
States covenants not to sue or to take administrative action
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against Settling Defendant pursuant to Sections 106 and 107(a) of
CERCLA and Section 7003 of RCRA relating to the Site; Except
with respect to future liability, these covenants not to sue
shall take effect upon the receipt by EPA of the payments
required by Paragraph 53 of Section XVI (Reimbursement of
Response Costs). With respect to future liability, these
covenants not to sue shall take effect upon Certification of
Completion of Remedial Action by EPA pursuant to Paragraph 49.b.
of Section XIV (Certification of Completion). These covenants
not to sue are conditioned upon the satisfactory performance by
Settling Defendant of its obligations under this Consent Decree.
These covenants not to sue extend only to the Settling Defendant
and do not extend to any other person.
82. United States' Pre-certification reservations.
Notwithstanding any other provision of this Consent Decree, the
United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action
or in a new action, or to issue an administrative order seeking
to compel Settling Defendant (1) to perfonn further response
actions relating to the Site or (2) to reimburse the United
States for additional costs of response if, prior to
Certification of Completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA,
are discovered, or
(ii) information, previously unknown to EPA, is received,
in whole or in part,
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and these previously unknown conditions or infonnation together
with any other relevant information indicates that the Remedial
Action is not protective of human health or the environment.
83. United States' Post-certification reservations.
Notwithstanding any other provision of this Consent De,cree, the
United States reserves, and this Consent Decree is withQut
prejudice to, the right to institute proceedings in this action
or in a new action, or to issue an administrative order seeking
to compel Settling Defendant (1) to perform further response
actions relating to the Site or (2) to reimburse the United
States for additional costs of response-if, subsequent to
Certification of Completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA,
are discovered, or
(ii) infonnation, previously unknown to EPA, is received,
in whole or in part,
and these previously unknown conditions or this information
together with other relevant information indicate that the
\ Remedial Action is not protective of human health or the
environment.
84. For purposes of Paragraph 82, the information and the
conditions known to EPA shall include only that infonnation and
those conditions known to EPA as of the date the ROD was signed
and set forth in the Record of Decision for the Site and the
administrative record supporting the Record of Decision. For
purposes of Paragraph 83, the information and the conditions
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known to EPA shall include only that information and those
conditions known to EPA as of the date of Certification of
Completion of the Remedial Action and set forth in the Record of
Decision, the administrative record supporting the Record of
Decision, the post-ROD administrative record, or in any
information received by EPA pursuant to the requiremen~s of this
Consent Decree prior to Certification. of Completion of the
Remedial Action.
as·. General reservations of rights. The covenants not to sue
set forth above do not pertain to any matters other than those
expressly specified in Paragraph 81. The United States reserves,
and this Consent Decree is without prejudice to, all rights
against Settling Defendant with respect to all other matters,
including but not limited to, the following:
(1) claims based on a failure by Settling Defendant to
meet a requirement of this Consent Decree;
(2) liability arising from the past, present, or future
disposal, release, or threat of release of Waste Materials
outside of the Site;
(3) liability for future disposal of Waste Material at
the Site, other than as provided in the ROD, the Work, or
otherwise ordered by EPA;
(4) liability for damages for injury to, destruction of,
or loss of natural resources, and· for the costs of any natural
resource damage assessments;
(5) criminal liability;
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(6) liability for violations of federal or state law
which occur during or after implementation of the Remedial
Action;
(7) liability, prior to Certification of Completion
of the Remedial Action, for additional response actions
that EPA determines are necessary to achieve Performance
Standards, but that cannot be required pursuant to
Paragraph 14 (Modification of the sow or Related Work
Plans);
(8) previously incurred costs of response above the
amounts reimbursed pursuant to Paragraph 53; and,
(9) liability f.or costs that the United States will incur
related to the Site. but are not within the definition of
Future Response Costs.
86. Work Takeover In the event EPA determines that Settling
Defendant has ceased implementation of any portion of the Work,
are seriously or repeatedly deficient or late in its performance
of the Work, or are implementing the Work in a manner which may
cause an endangerment to human health or the environment, EPA may
assume the performance of all or any portions of the Work as EPA
determines necessary. Settling Defendant may invoke the
procedures set forth in Section XIX (Dispute Resolution),
Paragraph 67, to dispute EPA's determination that takeover of the
Work is warranted under this Paragraph. Costs incurred by the
United States in performing the Work pursuant to this Paragraph
shall be considered Future Response Costs that Settling Defendant
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shall pay pursuant to Section XVI (Reimbursement of Response
Costs).
87. Notwithstanding any other provision of this Consent
Decree, the United States retains all authority and reserves all
rights to take any and all response actions authorized by law.
XXII. COVENANTS BY SETTLING DEFENDANT
88. Covenant N?t to Sue. Subject to the reservations in
Paragraph 88, Settling Defendant hereby covenants not to sue and
agrees not to assert'any claims or causes of action against the
United States with respect to the Site and Past and Future
Response Costs as defined herein or this Consent Decree,
including, but not limited to:
a. any direct or indirect claim for reimbursement from
the Hazardous Substance Superfund (established pursuant to the
Internal Revenue Code, 26 U.S.C. § 9507) through CERCLA Sections
106(b) (2), 107, 111, 112, 113 or any other provision of law;
b. any claims against the United States, including any
department, agency or instrumentality of the United States under
CERCLA Sections 107 or 113 related to the Site, or
c. any claims arising out of response activities at the
Site, including claims based on EPA's selection of response
actions, oversight of response activities or approval of plans
for such activities.
89. The Settling Defendant reserves, and this Consent Decree
is without prejudice to, claims against the United States;
subject to the provisions of Chapter 171 of Title 28 of the
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United States Code, for money damages for injury or loss of
property or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the United States
while acting within the scope of his office or employment under
circumstances where the United States, if a private person, would
be liable to the claimant in accordance with t_he law of the place
where the act or omission occurred. However, any such claim
shall not include a claim for any damages caused, in whole or in
part, by the act or omission of any person, including any
contractor, who is not a federal employee as that term is defined
in 28 U.S.C. § 2671; nor shall any such claim include a claim
based on EPA's selection of response actions, or the oversight or
approval of the Settling Defendant's plans or activities. The
foregoing applies only to claims which are brought pursuant to
any statute other than CERCLA and for which the waiver of
sovereign immunity is found in a statute other than CERCLA.
90. 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.
§ 300. 700 (d).
91. Settling Defendant agrees to waive all claims or causes
of action that it may have for all matters relating to the Site,
including for contribution, against the following persons: a.
any person (i) whose liability to Settling Defendant with respect
to the Site is based solely on CERCLA § 107 (a) (3) or ( 4) , ( ii)
who arranged for the disposal, treatment, or transport for
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disposal or treatment, or accepted for transport for disposal or
treatment, of only Municipal Solid Waste or Sewage Sludge owned
by such person, and (iii) who is a Small Business, a Small Non-
profit Organization, or the Owner, Operator, or Lessee of
Resideritial Property; and
b. any person (i) whose liability to Settling Defendant with
respect to the Site is based solely on CERCLA § 107(a) (3) or (4),
and (ii) who arranged for the disposal, treatment, or transport
for disposal or treatment, or accepted for transport for disposal
or treatment, of 55 gallons or less of liquid materials
containing hazardous substances, or 100 pounds or less of solid
materials containing hazardous substances, except where EPA has
determined that such material contributed or could contribute
significantly to the costs of response at the Site.
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
92. Nothing in this Consent Decree shall be construed to
create any rights in, or grant any cause of action to, any person
not a Party.to this Consent Decree. The preceding sentence shall
not be construed to waive or nullify any rights that any person
not a signatory to this decree may have under applicable law.
Each of the Parties expressly reserves any and all rights
(including, but not limited to, any right to contribution),
defenses, claims, demands, and causes of action which each Party
may have with respect to any matter, transaction, or occurrence
relating in any way to the Site against any person not a Party
hereto.
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93. The Parties agree, and by entering this Consent Decree
this Court finds, that the Settling Defendant is entitled, as of
the effective date of this Consent Decree, to protection from
contribution actions or claims as provided by CERCLA Section
113 (f) (2), 42 U.S.C. § 9613 (f) (2) for matters addressed in this
Consent Decree.
94. The Settling Defendant agrees that with respect to any
suit or claim for contribution brought by it for matters related
to this Consent Decree it will notify the United States in
writing no later than 60 days prior to the initiation of such
suit or claim.
95. The Settling Defendant also agrees that with respect to
any suit or claim for contribution brought against it for matters
related to this Consent Decree it will notify in writing the
United States within 10 days of service of the complaint on them.
In addition, Settling Defendant shall notify the United States
within 10 days of service or receipt of any Motion for Summary
Judgment and within 10 days of receipt of any order from a court
setting a case for trial.
96. In any subsequent administrative or judicial proceeding
initiated by the United States for injunctive relief, recovery of
response costs, or other appropriate relief relating to the Site,
Settling Defendant shall not assert, and may not maintain, any
defense or claim based upon the principles of waiver, res
judicata, collateral estoppel, issue preclusion, claim-splitting,
or other defenses based upon any contention that the claims
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raised by the United States in the subsequent proceeding were or
should have been brought in the instant case; provided, however,
that nothing in this Paragraph affects the enforceability of the
covenants not to sue set forth in Section XXI (Covenants Not to
Sue by Plaintiff).
XXIV. ACCESS TO INFORMATION
97. Settling Defendant shall provide to EPA, upon request,
copies of all-documents and information within its possession or
control or that of its contractors or agents relating to
activities at the Site or to the implementation of this Consent
Decree, including, but not limited to, sampling, analysis, chain
of custody records, manifests, trucking logs, receipts, reports,
sample t~affic routing, correspondence, or other documents or
information related to the Work. Settling Defendant shall also
make available to EPA, for purposes of investigation,
information gathering, or testimony, its employees, agents, or
repre·sentatives with knowledge of relevant facts concerning the
performance of the Work.
98. a. Settling Defendant may assert business
confidentiality claims covering part or all of the documents or
information submitted to Plaintiff under chis Consent Decree to
the extent permitted by and in accordance with Section 104(e) (7)
of CERCLA, 42 u.s.c. § 9604(e) (7), and 40 C.F.R. § 2.203(b).
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 documents
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or information when they are submitted to EPA, or if EPA has
notified Settling Defendant that the documents or information are
not confidential under the standards of Section 104(e) (7) of
CERCLA, the public may be given access to such documents or
information without further notice to Settling Defendant.
b. The Settling Defendant may assert that certain documents,
records and other information are privileged under the attorney-
client privilege or any other privilege recognized by federal
law. If the Settling Defendant asserts such a privilege .in lieu
of providing documents, it shall provide the Plaintiff with the
following: (1) the title of the document, record, or
information; (2) the date of the document, record, or
information; (3) the name and title of the author of the
document, record, or information; (4) the name and title of each
addressee and recipient; (5) a description of the contents of the
document, record, or information: and (6) the privilege asserted
by Settling Defendant. However, no documents, reports or other
information created or generated pursuant to the requirements of
the Consent Decree shall be withheld on the grounds that they are
privileged.
99. No claim of confidentiality shall be made with respect to
any data, including·, but not limited to, all sampling,
analytical, monitoring, hydrogeologic, scientific, chemical, or
engineering data, or any other documents or information
evidencing conditions at or around the Site.
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XXV. RETENTION OF RECORDS
100. Until 10 years after the Settling Defendant's receipt of
EPA's notification pursuant to Paragraph 50.b. of Section XIV
(Certification of Completion of the Work), each Settling
Defendant shall preserve and retain all records and documents now
in its possession or control or which come into its possession or
control that relate in any manner to the performance of the Work
or liability of any person for response actions conducted and to
be conducted at the Site, regardless of any corporate retention
policy to the contrary. Until 10 years after the Settling
Defendant's receipt of EPA's notification pursuant to Paragraph
50.b. of Section XIV (Certification of .Completion), Settling
Defendant shall also instruct its contractors and agents to
preserve all documents, records, and information of whatever
kind, nature or description relating to the performance of the
Work.
101. At the conclusion of this document retention period,
Settling Defendant shall notify the United States at least 90
days prior to the destruction of any such records or documents,
and, upon request by the United States, Settling Defendant shall
deliver any such records or documents to EPA. The Settling
Defendant may assert that certain documents, records and other
information are privileged under the attorney-client privilege or
any other privilege recognized by federal law. If the Settling
Defendant assert such a privilege, it shall provide the Plaintiff
with the following: (1) the title of the document, record, or
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information; (2) the date of the document, record, or
information; ( 3) the name and title of the author of the
document, record, or information; (4) the name and title of each
addressee and recipient; (5) a description of the subject of the
document, record, or information; and ( 6) the pri vile1,e asserted
by Settling Defendant. However, no documents, reports .or other
information created or generated pursuant to the requirements of
the Consent Decree shall be withheld on the grounds that they are
privileged.
102. Each Settling Defendant hereby certifies individually
that, to the best of its knowledge and belief, after thorough
inquiry, it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents or other information
relating to its potential liability regarding the Site since
notification of potential liability by the United States or the
State or the filing of suit against it regarding the Site and
that it has fully complied with any and all EPA requests for
information pursuant to Section 104(e) and 122(e) of CERCLA, 42
U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42
u.s.c. § 6927.
XXVI. NOTICES AND SUBMISSIONS
103. 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 at the addresses specified below,
unless those individuals or its successors give notice of a
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change to the other Parties in writing. All notices and
submissions shall be considered effective upon receipt, unless
otherwise provided. Written notice as specified herein shall
constitute complete satisfaction of any written notice
requirement of the Consent Decree with respect to the United
States, EPA, and the Settling Defendant, respectively.·
As to the United States:
Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
Re: DJ#
and
Director, Waste Management Division United States Environmental Protection Agency Region IV
As to EPA:
Steven Sandler
EPA Project Coordinator
United States Environmental Protection Agency Region IV
As to the State:
State Project Coordinator
As to the Settling Defendant:
(Name]
Settling Defendant'.s Project Coordinator (Address]
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EFFECTIVE DATE
104. 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.
XXVIII. RETENTION OF JURISDICTION
105. This Court retains jurisdiction over both the ·subject
matter of this Consent Decree and the Settling Defendant for the
duration of the performance of the terms and provisions of this
Consent Decree for the purpose of enabling any of the Parties to
apply to the Court 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 XIX (Dispute Resolution)
hereof.
XXIX. APPENDICES
106. The following appendices are attached to and
incorporated into this Consent Decree:
"Appendix A" is the ROD.
"Appendix B" is the sow.
"Appendix c• is the description and/or .map of the Site.
"Appendix D" is the complete list of the Non-owner Settling
Defendant.
"Appendix E" is the complete list of the Owner Settling
Defendant.
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XXX. COMMUNITY RELATIONS
107. Settling Defendant shall propose to EPA its
participation in the community relat_ions plan to be developed by
EPA. EPA will determine the appropriate role for the Settling_
Defendant under the Plan. Settling Defendant shall also
cooperate with EPA in providing information regarding the Work to
the public. As requested by EPA, Settling Defendant 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.
XXXI. MODIFICATION
108. Schedules specified in this Consent Decree for
completion of the Work may be modified by agreement of EPA and
the Settling Defendant. All such modifications shall b_e made in
writing.
109. Except as provided in Paragraph 14 ("Modification of the
SOW or related Work Plans"), no material modifications shall be
made to the SOW without written notification to and written
approval of the United States, Settling Defendant, and the Court.
Prior to providing its approval to any modification, the United
States will provide the State with a reasonable opportunity to
review and comment on the proposed modification. Modifications
to the SOW that do not materially alter that document may be made
by written agreement between EPA, after providing the State with
a reasonable opportunity to review and comment on the proposed
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modification, and the Settling Defendant.
110. Nothing in this Decree shall be deemed to alter the
Court's power to enforce, supervise or approve modifications to
this Consent Decree.
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
111. 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.
§ 9622(d) (2), and 28 C.F.R. § 50.7. The United States 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 Defendant consents to the
entry of this Consent Decree without further notice.
112. If for any reason the Court should decline to approve
this Consent Decree in the form presented, this agreement is
voidable at the sole discretion of any Party and the terms of the
agreement may not be used as evidence in any litigation between
the Parties.
XXXIII. SIGNATORIES/SERVICE
113. Each undersigned representative of the Settling
Defendant to this Consent Decree and the Assistant Attorney
General for Environment and Natural Resources of the Department
of Justice certifies tllat he or she ·is fully authorized to enter
into the terms and conditions of this Consent Decree and to
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execute and legally bind such Party to this document.
114. Each Settling Defendant hereby agrees not to oppose
entry of this Consent Decree by this Court or to· challenge any
provision of this Consent Decree unless the United States has
notified the Settling Defendant in writing that it no longer
supports entry of the Consent Decree.
115. Each Settling Defendant shall identify, on the attached
signature page, the name, address.and telephone number of an
agent who is authorized to accept service of process by mail on
behalf of that Party with respect to all matters arising under or
relating to this Consent Decree. Settling Defendant hereby
agrees 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 and any applicable local rules 'of this Court,
including, but not limited to, service of a summons.
SO ORDERED THIS ____ DAY OF ______ , 19
United States District Judge
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THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. ____________ , relating
to the Superfund Site .
Date:
FOR THE UNITED STATES OF AMERICA
[Name]
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
[Name]
Assistant United States Attorney District of ----U.S. Department of Justice [Address]
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THE UNDERSIGNED PARTY enters into this Consent Decree in the
matter of United States v. , relating -----------
to the General Electric/Shepherd Farm Superfund Site.
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John H. Hankinson, Jr. Regional Administrator, Region 4 U.S. Environmental Protection Agency
345 Courtland St. NE Atlanta, Georgia 30.365
[Name]
Assistant Regional Counsel U.S. Environmental Protection Agency
Region
[Address]
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THE UNDERSIGNED PARTY enters into this Consent Decree in the
matter of United States v. ___________ , relating
to the General Electric/Shepherd Farm Superfund Site.
FOR
Date:
COMPANY, INC.
[Name --Please Type] [Title --Please Type] [Address --Please Type]
Agent Authorized to Accept Service on Behalf of Above-signed Party:
Name: (Please Type} Title:
Address:
Tel. Number:
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I RECEIVED
OCT 111995 DRAFT
SUPERFUND SECTION I
RD/RA CONSENT DECREE
APPENDIX B
STATEMENT OF WORK
ScP 2 8 1095
GENERAL ELECTRIC/SHEPHERD FARM
NPL SUPERFUND SITE
EAST FLAT ROCK, NORTH CAROLINA
U.S ENVIRONMENTAL PROTECTION .AGENCY
REGION IV
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TABLE OF CONTENTS
Section
I. INTRODUCTION
II. OVERVIEW OF THE REMEDY
Ill. REMEDY
A. Components
8. Treatment
C. Performance Standards
D. Compliance Testing
E. Treatability Studies
IV. PLANNING AND DELIVERABLES
TASK I -Project Planning
A. Site Background
B. Project Planning
TASK II -Remedial Design
A. Remedial Design Planning
8. Preliminary Design
C. Intermediate Design
D. Prefinal/Final design
. TASK Ill -Remedial Action
A. Remedial Action Planning
B. Preconstruction Conference
C. Prefinal Construction Inspection
D. Final Construction Inspection
E. Final Construction Report
F. Remedial Action Report
TASK IV -Operation and Maintenance
A. Operation and Maintenance Plan
B. Operation and Maintenance Manual
TASK V -Performance Monitoring
A. Performance Standards Verification Plan
References
Summary of Major Deliverables
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STATEMENT OF WORK FOR THE
REMEDIAL DESIGN AND REMEDIAL ACTION AT THE GENERAL ELECTRIC/SHEPHERD FARM SITE
INTRODUCTION
This Statement of Work (SOW) outlines the work to be performed by Settling Defendant at the General Electric/Shepherd Farm Superfund Site in Henderson County, North Carolina("the Site"). The work outlined is intended to fully implement the remedy as described in the Record of Decision (ROD) for the Site, dated September 29, 1995, and to achieve the Performance Standards set forth in the ROD, Consent Decree, and this SOW. The requirements of this ·sow will be further detailed in work plans and other documents to be submitted by the Settling Defendants for approval as· set forth in this SOW. It is not the intent of this document to provide task specific engineering or geological guidance. The definitions set forth in Section IV of the Consent Decree shall also apply to this_ SOW unless expressly provided otherwise herein.
Settling Defendant is responsible for performing the Work to implement the selected remedy. EPA shall conduct oversight of the Settling Defendant's activities throughout the performance of the Work. The Settling Defendant shall assist EPA ,in conducting oversight activities.
EPA review or approval of a task or deliverable shall not be construed as a guarantee as to the adequacy of such task or deliverable. If EPA modifies a deliverable pursuant to Section XII of the Consent Decree, such deliverable as modified shall be deemed approved by EPA for purposes of this SOW. A summary of the major deliverables that Settling Defendants shall submit for the Work is attached.
11. OVERVIEW OF THE REMEDY
THE OBJECTIVES OF THIS REMEDIAL ACTION ARE TO:
Prevent or mitigate the continued release of hazardous substances, pollutants and contaminants to the groundwater;
Prevent or mitigate the continued release of hazardous substances, pollutants and contaminants at the Site to surface water bodies and sediments;
Eliminate or reduce the risks to human health associated with direct contact with hazardous substances, pollutants or contaminants within the Site;
Eliminate or reduce the risks to human health from inhalation of hazardous substances, pollutants or contaminants from .the Site;
Eliminate or minimize the threat posed to human health and the environment from current and potential migration of hazardous substances in the surface
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water, ground water, and surface and subsurface soil at the Site;
Reduce concentrations of hazardous substances, pollutants and contaminants in surface water, ground water, and surface and subsurface soil within the Site to levels specified by the Performance Standards; and
Reduce the volume, toxicity and mobility of hazardous substance, pollutants or contaminants at the Site.
REMEDY
The remedy includes soil excavation and disposal as well as groundwater extra_ction and treatment.
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Components
· The major components of the remedy are described in Section 11 (A) and 11 (B), Selected Remedy section of the attached Record of Decision.
Treatment
The treatment technologies for the remedy are described in Section 11 (A) and 11 (B), Selected Remedy section of the attached Record of Decision.
Performance Standards
Settling Defendant shall meet all Performance Standards, as defined in the Consent Decree including the standards set forth in the attached Record of Decision.
• Settling Defendant shall operate the groundwater treatment systems until Settling Defendant ·has demonstrated compliance with the respective Performance Standards, in accordance with the Performance Standards Verification Plan.
Compliance Testing
Settling Defendant shall perform compliance testing to ensure that all Performance Standards are met. After demonstration of compliance with Performance Standards, Settling Defendant shall monitor the Site including soil and groundwater for a minimium of five years. If monitoring indicates that the Performance Standards set forth in Sections 11 (A) and 11 (B) of the Record of Decision are not being achieved at any time after pumping has been discontinued, extraction and treatment of the groundwater will recommence until the Performance Standards are once again achieved. If testing of soils indicates the Performance Standards aren't achieved,
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EPA may reevaluate the effectiveness of the source control component.
Treatability Studies
Settling Defendant shall submit a Treatability Study Workplan to determine if the selected remedy will attain all Performance Standards. Settling Defendant shall use the study results and site specific operating conditions in the detailed design of the selected remedy. EPA will evaluate the results of the treatability study to determine whether the proposed treatment will attain the Performance Standards. Settling Defendant shall submit the Treatability Study Final Report to EPA as soon as possible following completion of the study but no later than 120 days f~llowing EPA's approval of the Treatability Study Workplan. Th·e specific details relating to the Treatability Study requirements are covered in Section IV, Task II of this SOW.
IV. PLANNING AND DELIVERABLES.
The specific scope of this work shall be documented by Settling Defendant in a Remedial Design (RD) Work Plan and a Remedial Action (RA) Work.Plan. Plans, specifications, submittals, and other deliverables shall be subject to EPA review and approval in accordance with Section XI of the Consent Decree.
Settling Defendant shall submit a technical memorandum documenting any need for additional data along with the proposed Data Quality Objectives (DQOs) whenever such requirements are identified. Settling Defendant is responsible for fulfilling additional .· data and analysis needs identified by EPA during the RD/RA process consistent with the general scope and objectives of the Consent Decree, including this SOW.
Settling Defendant shall perform the following tasks: •
TASK I -PROJECT PLANNING
A. Site Background
Settling Defendant shall gather and _evaluate the existing information regarding the Site and shall conduct a visit to the Site to assist in planning the RD/RA as follows:
1. Collect and Evaluate Existing Data and Document the Need for Additional Data
Before planning RD/RA activities, all existing Site data shall be thoroughly compiled and reviewed by Settling Defendant. Specifically, this shall include the ROD, RI/FS, and other available data related to the Site. This information shall be utilized in
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determining additional data needed for RD/RA 'implementation. Final decisions on the necessary data and DQOs shall be made by EPA .
Conduct Site Visit
Settling Defendant shall conduct a visit to the Site with the EPA Remedial Project Manager (RPM) during the project planning phase to assist in developing a conceptual understanding of the RD/RA requirements for the Site. Information gathered during this visit shall be utilized to plan the project and to determine the extent of the additional data necessary to implement the RD/RA.
Project Planning
Once Settling Defendant has collected and evaluated existing data and conducted a visit to the Site, the specific project scope shall be planned. Settling Defendant shall meet with EPA at the completion of this evaluation regarding the following activities and before proceeding with Tas_k II.
TASK 11 -REMEDIAL DESIGN
The Remedial Design shall provide the technical details for implementation of the Remedial Action in accordance with currently accepted environmental protection technologies and standard professional engineering and construction practices. The design shall include clear and comprehensive design plans and specifications.
A. Remedial Design Planning
At the conclusion of the project planning phase, Settling Defendant shall submit an RD Work Plan, a Sampling and Analysis Plan, a Health and Safety Plan, and a Treatability. Study Work Plan to EPA. The RD Work Plan, the Sampling and Analysis Plan and the Treatability Study Work Plan must be· reviewed and approved by EPA and the Health and Safety Plan reviewed and commented on by EPA prior to the initiation of field activities. Upon approval of the RD Work Plan, Settling Defendant shall implement the RD Work Plan in accordance with the design management schedule contained therein. Plans, specifications, submittals, and other deliverables shall be subject to EPA review and approval in accordance with Section XI of the Consent Decree. Review and/or approval of design submittals only allows Settling Defendant to proceed to the next step of the design process. It does not imply acceptance of later design submittals that have not been reviewed, nor that the remedy, when constructed, will meet Performance Standards.
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1. · RD Work Plan
Settling Defendant shall submit a Remedial Design (RD) wo'rk Plan to EPA for review and approval. The Work Plan shall be developed in conjunction with the Sampling and Analysis Plan, the Health and Safety Plan, and the Treatability Study Work Plan, although each plan may be delivered under separate cover. The Work Plan shall include a comprehensive description of the additional data collection and evaluation activities to be performed, if any, and the plans and specifications to b.e prepared. A comprehensive design management schedule for completion of each major activity and submission of each deliverable shall also be included.
Specifically, the Work Plan shall present the following:
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A statement of the problem(s) and potential problem(s) posed by the Site and,the objectives of the RD/RA.
A background summary setting forth the following:
1 ) A brief description of the Site including the. geographic location and the physiographic, hydrologic,
geologic, demographic, ecological, and natural resource features;
2) A brief synopsis of the history of the Site including a summary of past disposal practices and a description
of previous responses that have been conducted by local, State, Federal, or private parties;
3) A summary of the existing data including physical and chemical characteristics of the contaminants identified and their distribution among the environmental media at the Site.
A list and detailed description of the tasks to be performed, information needed for each task, information to be produced during and at the conclusion of each task, and a description of the work products that shall be submitted to EPA. This description shall include the deliverables set forth in the remainder of Task II.
A schedule with specific dates for completion of each required activity and submission of each deliverable required by the Consent Decree and this SOW. This schedule shall also include information regarding timing, initiation and
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completion of all critical path milestones for each activity and/or deliverable.
e. A project management plan, including a data management plan, and provision for monthly reports to EPA, and meetings and presentations to EPA at the conclusion of each major phase of the RD/RA. The data management plan shall address the requirements for project management systems, including tracking, sorting, and retrieving the data along with an identification of the software to be used, minimum data requirements, data format and backup data management. The plan shall address both data management and document
control for all activities conducted during the RD/RA.
f. A description of the community relations support activities to be conducted during the RD. At EPA's request, Settling Defendant will assist EPA in preparing and disseminating information to the public regarding the RD work to be performed.
Sampling and Analysis Plan
Settling Defendant shall prepare a Sampling and Analysis Plan (SAP) to ensure that sample collection and analytical activities are conducted in accordance with technically acceptable protocols and that the data generated will meet the DOOs established. The SAP shall include a Field Sampling and Analysis Plan (FSAP) and a Quality Assurance Project Plan (OAPP).
The FSAP shall define in detail the sampling and data-gathering methods that shall be used on the project. It shall include sampling objectives, sample location (horizontal and vertical) and frequency, sampling equipment and procedures, and sample handling and analys)s. The Field Sampling and Analysis Plan shall be written so that a field sampling team unfamiliar with the Site would be able to gather the samples and. field information required. The QAPP shall describe the project objectives and organization, functional activities, and quality assurance and quality control (OA/OC) protocols that shall be used to achieve the desired DOOs. The DQOs sha.11, at a minimum, reflect use of analytical methods for obtaining data of sufficient quality to meet National Contingency Plan requirements as identified at 300.435 (b). In addition, the QAPP shall address personnel qualifications, sampling procedures, sample custody, analytical procedures, and data reduction, validation, and reporting. These procedures must be consistent with the Region IV Environmental Compliance Branch Standard
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Operating Procedures and Quality Assurance Manual and the guidances specified in Section VIII of the Consent Decree.
Settling Defendant shall demonstrate in advance and to EPA's satisfaction that each laboratory it may use is qualified to conduct the proposed work and meets the requirements specified in Section VIII of the Consent Decree. EPA may require that Settling Defendant submit detailed information to demonstrate that the laboratory is qualified to conduct the work, including information on personnel qualifications, equipment and material specification, and laboratory analyses of performance samples (blank and/or spike samples). In addition, EPA may require submittal of data packages equivalent to those generated by the EPA Contract Laboratory Program (CLP).
Health and Safety Plan
A Health and Safety Plan shall be prepared in conformance with Settling Defendant's health and safety program, and in compliance with OSHA regulations and protocols. The Health and Safety Plan shall include a health and safety risk analysis, a description of monitoring and personal protective equipment, medical monitoring, and provisions for site control. EPA wjlf not approve Settling Defendant's Health and Safety Plan, but rather EPA will review it to ensure that all necessary elements are included, and that the plan provides for the protection of human health and the environment.
Treatabilitv Study Work Plan
Settling Defendant shall prepare a Treatability Study Work Plan for EPA review and approval. The purpose of the Treatability Study is to determine if the particular technology or vendor of this technology is capable of meeting the Performance Standards. As provided for in the Record of Decision, the Treatability Study Work Plan shall describe the groundwater in-situ bioremediation technology to be tested, and test objectives, experimental procedures, treatability conditions to be tested, measurements of performance, analytical methods, data management and analysis, health and safety, and residual waste management. The DQOs for the treatability study shall be documented as well. The Treatability Study Work Plan shall also describe pilot scale installation and start-up, pilot scale operation and maintenance procedures, and operating conditions to be tested. If testing is to be performed off-site, permitting requirements shall be addressed. A schedule for performing the treatability study shall be included with specific
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dates for the tasks, including, but not limited to, the procurement of contractors and the completion of sample collection, performance, sample analysis, and report preparation. The Work Plan shall describe in detail the treatment process and how the proposed vendor or technology will meet the Performance Standards for the Site. Review and approval by EPA shall mean only that EPA considers the proposed technology, vendor, and study approach appropriate for the remedy selected for the Site. The Treatability Study Work Plan shall also address how Settling Defendant proposes to meet all discharge requirements for any and all treated material, air, water and expected effluents. Additionally, the Work Plan shall also explain the proposed final treatment and disposal of all material generated by the proposed treatment system. Any and all permitting requirements shall also be addressed.
Treatability Study Sampling and Analysis Plan
If EPA determines that the Remedial Design SAP is not adequate for defining the activities to be performed during the Treatability Study, a separate Treatability Study SAP shall be prepared by Settling Defendant for EPA review and approval. It shall be designed to monitor pilot plant performance.
Treatability Study Health and Safety Plan
If EPA determines that the Remedial Design Health and Safety Plan is not adequate for defining the activities to be performed during the Treatability Study, a separate Treatability Study Health and Safety Plan shall be developed by Settling Defendant .. EPA will not approve Settling Defendant's Health and Safety Plan, but rather EPA will review it to ensure that all necessary elements are included, and that the plan provides for the protection of human health and the environment.
Preliminary Design
Preliminary Design shall begin with initial design and shall end with the completion of approximately 30 percent of the design effort. At this stage, Settling Defendant shall field verify, as necessary, the existing conditions of the Site. The technical requirements of the Remedial Action shall be addressed and outlined so that they may be reviewed to determine if the final design will provide an effective remedy. Supporting data and documentation shall be provided with the design documents defining the functional aspects of the project. EPA approval of the Preliminary Design is required before proceeding with further design work, unless specifically authorized by EPA. In accordance
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with the design management schedule established in· the approved Remedial Design Work Plan, Settling Defendant shall submit to EPA the Preliminary Design submittal which shall consist of the following:
1. Results of Data Acquisition Activities
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Data gathered during the project planning phase shall be compiled, summarized, and submitted along with an analysis of the impact of the results on design activities. In addition, surveys conducted to establish topography, rights-of-way, easements, and utility lines shall be documented. Utility requirements and acquisition of access, through purchases or easements, that are necessary to implement the RA shall also be discussed.
Design Criteria Report
The concepts supporting the technical aspects of the design shall be defined in detail and presented in this report. Specifically, the Design Criteria Report shall include the preliminary design assumptions and parameters, including:
a. Waste characterization
b. Pretreatment requirements
c. Volume of each me_dia requiring treatment
d. Treatment schemes (including all media and
by-products)
e. Input/output rates
f. Influent and effluent qualities
g. Materials and equipment
h. Performance Standards
i. Long-term monitoring requirements
Preliminary Plans and Specifications
Settling Defendant shall submit an outline of the required drawings, including preliminary sketches and layouts, describing conceptual aspects of.the design, unit processes, etc. In addition, an outline of the required specifications, including Performance Standards, shall be submitted. Construction drawings shall reflect organization and clarity, and the scope of the technical specifications shall be outlined in a manner reflecting the final specifications.
Plan for Satisfying Permitting Requirements
All activities must be performed in accordance with the requirements of all applicable federal and · state laws and
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regulations. Any off-site disposal shall be in compliance with the policies stated in the Procedure for Planning and Implementing Off-site Response Actions (Federal Register, Volume 50, Number 214, November, 1985, pages 45933 -45937) and Federal Register, Volume 55, Number 46, March 8, 1990, page 8840, and the National Contingency Plan, Section 300.440. The plan shall identify the off-site disposal/discharge permits that are required, the time required to process the permit applications, and a schedule for submittal of the permit applications.
Treatability Study Final Report
Following completion of the study, Settling Defendant shall submit a report on the performance of the technology to EPA for review and approval. EPA will evaluate the results cif the treatability study for completeness and appropriateness based on site conditions. The study results shall indicate clearly the performance of the technology or vendor compared with the Performance Standards established for the Site. The report shall evaluate the treatment technology's effectiveness, implementability, cost, and actual results as compared with predicted results. The report shall also evaluate full-scale application of the technology, including a sensitivity analysis identifying the key parameters affecting full-scale operation. The study results shall be submitted to EPA immediately upon completion of the study. Should the results indicate that the proposed technology will meet the Performance Standards, EPA will instruct Settling Defendant to include the Treatability Study Final Report in the Preliminary Design Report and the study results and operating conditions shall be used in the detailed design of the selected remedy. EPA approval of the Treatability Study Final Report shall mean only that.EPA finds the study methodology acceptable. EPA approval of the study, results, or the Treatability Study Final Report shall not imply or be construed-to mean that EPA is warranting the performance of this or any vendor or technology. Should the treatab11ity study not be approved by EPA, additional treatability studies may be required to fully evaluate the available treatment systems.
C. Intermediate Design
Intermediate Design shall begin with completion of the Preliminary Design and end with the completion of approximately 60 percent of the design effort. Settling Defendant shall submit to EPA the Intermediate Design submittal which shall consist of a continuation and expansion of the Preliminary Design submittal as may be modified by any value engineering recommendations adopted by Settling Defendant. Any value engineering recommendations adopted by Settling
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Defendant shall be summarized in a report submitted with the Intermediate Design. EPA comments on the Intermediate Design and a memorandum indicating how EPA's comments were incorporated shall be included in the Prefinal/Final Design. The Intermediate Design shall be submitted in accordance with the approved design management schedule and shall consist of the following:
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Draft Design Analyses
The evaluations conducted to select the design approach shall be described. Design calculations shall be included.
Draft Plans and Specifications·
Draft construction drawings and specifications for all components of the Remedial Action shall be prepared and presented. All plans and specifications shall · conform with the Construction Specifications Institute Master Format.
Draft Construction Schedule
Settling Defendant shall develop a Draft Construction Schedule for construction and implementation of the remedial action which identifies timing for initiation and completion of all critical path tasks. Settling Defendant shall specifically identify dates for completion of the project and major milestones .
. Prefinal/Final Design
Settling Defendant shall submit the Prefinal Design when the design work is approximately 90 percent complete in accordance with the approved design management schedule. Settling Defendant shall address comments generated from the Intermediate Design Review and clearly show any modification of the design as a result of incorporation of the comments. Essentially, the Prefinal Design shall function as the draft version of the Final Design. After EPA review and comment on the Prefinal Design, the Final Design shall be submitted along with a memorandum indicating how the Prefinal Design comments were incorporated into the Final Design. All Final Design documents shall be certified by a Professional Engineer registered in the State of North Carolina. EPA written approval of the Final Design is required .before initiating the RA, unless specifically authorized by EPA. The following items shall be submitted with or · as part of the Prefinal/Final Design:
1 . Complete Design Analyses
The selected design shall be presented along with an analysis
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2.
3.
4.
supporting the design approach. Desig"! calculations shall be included.
Final Plans and Specifications
A complete set of construction drawings and specifications shall be submitted which describe the selected design.
Final Construction Schedule
Settling Defendant shall submit a final construction schedule to EPA for approval.
Construction Cost Estimate
An• estimate within + 1 5 percent to -10 percent of actual construction costs shall be submitted.
TASK Ill -REMEDIAL ACTION
Remedial Action shall be performed by Settling Defendant to implement the response actions selected in the ROD.
A. Remedial Action Planning
Concurrent with the submittal of the Prefinal/Final Design, Settling Defendant shall submit a draft Remedial Action (RA) Work Plan, a Construction Management Plan, a Construction Quality Assurance Plan, and a Construction Health and Safety Plan/Contingency Plan. The RA Work Plan, Construction Management Plan, and Construction Quality Assurance Plan must be reviewed and approved by EPA and the Construction Health and Safety Plan/Contingency Plan reviewed by EPA prior to the initiation of the Remedial Action.
Upon approval of the Final Design and the RA Work Plan, Settling Defendant shall implement the RA Work Plan in accordance with the construction management schedule. Significant field changes to the RA as set forth in the RA _Work Plan and Final Design shall not be undertaken without the approval of EPA. The RA shall be documented in enough detail to produce as-built construction drawings after the RA is complete. Deliverables shall be submitted to EPA for review and approval in accordance with Section XI of the Consent Decree. Review and/or approval of submittals does not imply acceptance of later submittals that have not been reviewed, nor that the remedy, when constructed, will meet Performance Standards.
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1.
2.
RA Work Plan
A Work Plan which provides a detailed plan of action for completing the RA activities shall be submitted to EPA for review and approval. The objective of this work plan is to provide for the safe and efficient completion of the RA. The Work Plan shall be developed in conjunction with the Construction Management Plan, the Construction Quality Assurance Plan, and the Construction Health and Safety Plan/Contingency Plan, although each plan may be delivered under separate cover. The Work Plan shall include a comprehensive description of the work to be performed and the Final Construction schedule for completion of each major activity and submission of each deliverable. The Work Plari shall be developed in conjunction with the Construction Management Plan, the Construction Quality Assurance Plan,. and the Construction Health and Safety Plan, although each may be delivered under separate cover.
Specifically, the Work Plan shall present the following:
a. A detailed description of the tasks to be performed and a description of the work products to be submitted to EPA. This includes the deliverables set forth in the remainder of Task Ill.
b.
C.
d.
A schedule for completion of each required activity and submission of each deliverable required by this Consent Decree, including those in this SOW.
A project management plan, including provision for monthly reports to EPA and meetings and presentations to EPA at the conclusion of each major phase of the RA. EPA's Project Coordinator and the Settling Defendant's Project Coordinator will meet, at a minimum, on a quarterly basis, unless EPA determines that such meeting is unnecessary.
A description of the community relations support activities to be conducted during the RA. At EPA's request, Settling Defendant shall assist EPA in preparing and disseminating information to the public regarding the RA work to be performed.
Project Delivery Strategy
Settling Defendant shall submit a document to EPA for review and approval describing the strategy for delivering the project. This
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4.
document shall address the management approach for implementing the Remedial Action, including procurement methods and contracting strategy, phasing alternatives, and contractor and equipment availability concerns. If the construction of the remedy is to be accomplished by Settling Defendant's "in-house" resources, the document shall identify those resources.
Construction Management Plan
A Construction Management Plan shall be developed to indicate how the construction activities are to be implemented and coordinated with EPA during the RA. Settling Defendant shall designate a person to be a Remedial Action Coordinator and its representative on-site during the Remedial Action, and identify this person in the Plan. This Plan shall also identify other key project management personnel and lines of authority, and provide descriptions of the duties of the key personnel along with an organizational chart. In addition, a plan for the administration of construction changes and EPA review and approval of those changes shall be included.
Construction Quality Assurance Plan
Settling Defendant shall develop and implement a Construction Quality Assurance Program to ensure, with a reasonable degree of certainty, that the completed Remedial Action meets or exceeds all design criteria, plans and specifications, and Performance Standards. The Construction Quality Assurance Plan shall incorporate relevant provisions of the Performance Standards Verification Plan (see Task V). At a minimum, the Construction Quality Assurance Plan shall include the following elements:
a. A description of the quality control organization, including a chart showing lines of authority, identification of the members of the Independent Quality Assurance Team (IQAT), and acknowledgment that the !OAT will implement the control system for all aspects of the work specified and shall report to the project coordinator and EPA. The !OAT members shall be representatives from testing and inspection organizations and/or the Supervising Contractor and shall be responsible for the QA/QC of the Remedial Action. The members of the !OAT shall have a good professional and ethical reputation, previous experience in the type of QA/QC activities to be implemented, and demonstrated capability to perform the required activities. They shall also be
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b.
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d.
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f.
independent of the construction contractor.
The name, qualifications, duties, authorities, and responsibilities of each person assigned a QC function.
Description of the observations and control testing that will be used to monitor the construction and/or installation of the components of the Remedial Action. This includes information which certifies that personnel and laboratories
performing the tests are qualified and the equipment and procedures to be used comply with applicable standards. Any laboratories to be used. shall be _specified. Acceptance/Rejection criteria and plans for implementing
corrective measures shall be addressed.
A schedule for managing submittals, testing, inspections,
and any other QA function (including those of contractors, subcontractors, fabricators, suppliers, purchasing agents, etc.) that involve assuring quality workmanship, verifying compliance with the plans and specifications, or any other QC objectives. Inspections shall verify compliance with all environmental requirements and include, but not be limited to, air quality and emissions monitoring records and waste disposal records, etc.
Reporting procedures and reporting format for QA/QC activities including such items as daily summary reports, schedule of data submissions, inspection data sheets, problem identification and corrective measures reports, evaluation reports, acceptance reports, and final documentation.
A list of definable features of the work to be performed. A definable feature of work is a task which is separate and distinct from other tasks and has separate control requirements.
Construction Health and Safety Plan/Contingency Plan
Settling Defendant shall prepare a Construction Health and Safety Plan/Contingency Plan in conformance with Settling Defendant's health and safety program, and in compliance with OSHA regulations and protocols. The Construction Health and Safety Plan shall include a health and safety risk analysis, a description of monitoring and personal protective equipment, medical monitoring, and site control. EPA will not approve Settling Defendant's
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Construction Health and Safety Plan/ Contingency Plan, but rather EPA will review it to ensure that all necessary elements are included, and that the plan provides for the protection of human health and the environment. This plan shall include a Contingency Plan and incorporate Air Monitoring and Spill Control and Countermeasures Plans if determined by EPA to be applicable for the Site. The Contingency Plan is to be written for the onsite construction workers and the local affected population. It shall include the following items:
a.
b.
C.
d.
e.
f.
Name of person who will be responsible in the event of an . emergency incident.
Plan for initial site safety indoctrination and training for all employees, name of the person who will give the training and the. topics to be covered.
Plan and date for meeting with the local community, including local, state and federal agencies involved in the cleanup, as well as the local emergency squads and the local hospitals.
A list of the first aid and medical facilities including, location of first aid kits, names of personnel trained in first aid, a clearly marked map with the route to the nearest medical facility, all necessary emergency phone numbers conspicuously posted at the job site (i.e., fire, rescue, local hazardous material teams, National Emergency Response Team, etc.)
Plans for protection of public and visitors. to the job site.
Air Monitoring Plan which incorporates the following requirements:
1) Air monitoring shall be conducted both on Site and at the perimeter of the Site. The chemical constituents that were identified during the Risk Assessment shall serve as a basis of the sampling for and measurement of pollutants in the atmosphere. Settling Defendant shall clearly identify these compounds and the detection anp notification levels required in Paragraph 4 below. Air monitoring shall include personnel monitoring, on-site area monitoring, and perimeter monitoring.
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g.
2) Personnel Monitoring shall be conducted according to OSHA and NIOSH regulations and guidance.
3) Onsite Area Monitoring shall consist of continuous real-time monitoring performed immediately adjacent to any waste excavation areas, treatment areas, and any other applicable areas when work is occurring. Measurements shall be taken in the breathing zones. of personnel and immediately upwind and downwind of the work areas. Equipment shall include the following, at a minimum: organic vapor meter, explosion meter, particulate monitoring equipment, and onsite windsock.
4) Perimeter Monitoring shall consist of monitoring airborne contaminants at the perimeter of the Site to determine whether harmful concentrations of toxic constituents are migrating off-site. EPA approved methods shall be used for sampling and analysis of air at the Site perimeter. The . results of the perimeter air monitoring and the on-site meteorological station shall be used to assess the potential for off-site exposure to toxic materials. The air monitoring program shall include provisions for notifying nearby residents, local, state and federal agencies in the event that unacceptable concentrations of airborne toxic constituents are migrating off-site. Settling Defendant shall report detection of unacceptable levels of airb.orne contaminants to EPA in accordance with Section X of the Consent Decree.
A Spill Control and Countermeasures Plan which shall include the following:
1 ) Contingency measures for potential spills and discharges from materials handling and/or transportation.
2) A description of the methods, means, and facilities required to prevent contamination of soil, water, atmosphere, and uncontaminated structures, equipment, or material by spills or discharges.
3) A description of the equipment and personnel necessary to perform emergency measures required to contain any spillage and to remove spilled materials and soils or liquids that become contaminated due to spillage. · This collected spill material must be properly disposed of.
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4) A description of the equipment and personnel to perform decontamination measures that may be required for previously uncontaminated structures, equipment, or material.
B. Preconstruction Conference
A Preconstruction Conference shall be held after selection of the construction contractor but before initiation of construction. This conference shall include Settling Defendant and federal, state and local government agencies and shall:
1 . Define the roles, relationships, and responsibilities of all parties;
2. Review methods for documenting and reporting inspection data;
3.
4.
5.
6.
Review methods for distributing and storing documents and reports;
Review work area security and safety protocols;
Review the Construction Schedule; ·
Conduct a site reconnaissance to verify that the design criteria and the plans specifications are understood and to review material and equipment storage locations.
The Preconstruction Conference must be documented, including names of people in attendance, issues discussed, clarifications made, special instructions issued, etc.
C. Prefinal Construction Inspection
Upon preliminary project completion Settling Defendant shall notify EPA for the purpose of conducting a Prefinal Construction Inspection. Participants should include the Project Coordinators, Supervising Contractor, Construction Contractor, Natural Resource Trustees and other federal, state, and local agencies with a jurisdictional interest. The Prefinal Inspection shall consist of a walk-through inspection of the entire project site. The objective of the inspection is to determine whether the construction is complete and consistent with the Consent Decree. Any outstanding construction items discovered during the inspection shall be identified and noted on a punch list. Additionally, treatment equipment shall be operationally tested by Settling Defendant. Settling Defendant shall certify that the equipment has performed to effectively meet the purpose and intent of the specifications. Retesting shall be completed where deficiencies are revealed. A Prefinal Co.nstruction Inspection Report shall be submitted by Settling Defendant which outlines the outstanding construction
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items, actions required to resolve the items, completion date for the items, and an anticipated date for the Final Inspection.
D. Final Construction Inspection
Upon completion of all outstanding construction items, Settling Defendant shall notify EPA for the purpose of conducting a Final Construction Inspection. The Final Construction Inspection shall consist of a walk-through inspection of the entire project site. The Prefinal Construction Inspection Report shall be used as a check list with the Final Construction Inspection focusing on the outstanding construction items identified in the Prefinal Construction Inspection. All tests that were originally unsatisfactory shall be conducted again. Confirma.tion shall be made during the Final Construction Inspection that all outstanding items have been resolved. Any outstanding construction items discovered during the inspection still requiring correction shall be identified and noted on a punch list. If any items are still unresolved, the inspection shall be considered to be a Prefinal Construction Inspection requiring another Prefinal Construction Inspection Report and subsequent Final Construction Inspection.
E. Final Construction Report
Within thirty (30) days following the conclusion of the Final Construction Inspection, Settling Defendant shall submit a Final Construction Report. EPA will review the draft report and will provide comments to Settling Defendant. The Final Construction Report shall include the following:
1. Brief description of how outstanding items noted in the Prefinal Inspection were resolved;
2. Explanation of modifications made during the RA to the original RD and RA Work Plans and why these changes were made;
3. As-built drawings.
4. Synopsis of the construction work defined in the SOW and certification that the construction work has been completed.
F. Remedial Action Report
As provided in Section XIV of the Consent Decree, within 90 days after Settling Defendant conclude that the Remedial Action has been fully performed and the Performance Standards have been attained, Settling Defendant shall so certify to the United States and shall schedule and conduct a pre-certification inspection to be attended by EPA and Settling Defendant. If after the pre-certification inspection Settling Defendant still believes that the Remedial Action has been fully performed and the Performance Standards have been attained, Settling
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Defendant shall submit a Remedial Action (RA) Report to EPA in accordance with Section XV of the Consent Decree. The RA Report shall include the following:
1 . A copy of the Final Construction Report;
2. Synopsis of the work defined in this SOW and a demonstration in accordance with the Performance Standards Verification Plan that Performance Standards have been achieved;
3. Certification that the Remedial Action has been completed in full satisfaction of the requirements of the Consent Decree, and; 4. A description of how Settling Defendant will implP.ment any remaining part of the EPA approved Operation and Maintain Plan.
After EPA review, Settling Defendant shall address any comments and submit a revised report. As provided in Section XV of the Consent Decree, the Remedial Action shall not be considered complete until EPA approves the RA Report.
TASK IV -OPERATION AND MAINTENANCE
Operation and Maintenance (O&M) shall be performed in accordance with the approved Operation and Maintenance-Plan.
A. Operation and Maintenance Plan
At the 30 percent construction stage, Settling Defendant shall submit an Operation and Maintenance Plan for review. The Operation and Maintenance Plan must be reviewed and approved by EPA.prior to initiation of Operation and Maintenance activities. If necessary, the Operation and Maintenance Plan shall be modified to incorporate any design modifications implemented during the Remedial Action.
Upon approval of the Operation and Maintenance Plan, Settling Defendant shall implement the Operation and Maintenance Plan in accordance with the schedule contained therein. This plan shall describe start-up procedures, operation, troubleshooting, training, and evaluation activities that shall be carried out by Settling Defendant. The plan shall address the following elements:
1. Equipment start-up and operator training;
a. Technical specifications governing treatment systems;
b. Requirements for providing appropriate service visits by experienced personnel to supervise the installation, adjustment, start-up and operation of the systems;· and,
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c. Schedule for training personnel regarding appropriate operational procedures once start-up has been successfully completed.
2. Description of normal operation and maintenance;
a.
b.
C.
d.
Description of tasks required for system operation;
Description of tasks required for system maintenance;
Description of prescribed treatment or operating conditions; . and
Schedule showing the required freqµency for each O&M task.
. 3. Description of potential operating problems;
a.
b.
C.
Description and analysis of potential operating problems;
Sources of information regarding problems; and
Common remedies or anticipated corrective actions.
4. Description of routine monitoring and laboratory testing;
5.
6.
a. Description of monitoring tasks;
b. Description of required laboratory tests interpretation;
c. Required QA/QC; and
and their
d. Schedule of monitoring frequency and date, if appropriate, when monitoring may cease.
Description of alternate O&M;
a. Should system fail, alternate procedures to prevent undue hazard; and
b. Analysis of vulnerability and additional resource requirements should a failure occur.
Safety Plan;
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7.
8.
a. Description of precautions to be taken and required health and safety equipment, etc., for site personnel protection, and
b. Safety tasks required in the event of systems failure.
Description of equipment;
a. Equipment identification;
b.
c.
d.
Installation of monitoring components;
Maintenance of site equipment; and
Replacement schedule for equipment and installation components.
Records and reporting;
a. . Daily operating logs;
b. Laboratory records;
c. Records of operating cost;
d. Mechanism for reporting emergencies;
e. Personnel and Maintenance Records; and
f. Monthly reports to State/Federal Agencies.
Operation and Maintenance Manual
At the 30 percent construction stage, Settling Defendant shall submit an O&M manual for review. This manual shall include all necessary O&M information for . the operating personnel. The O&M manual must be reviewed and approved by EPA prior to initiation of Operation and Maintenance activities.
TASK V -PERFORMANCE MONITORING
Performance monitoring shall be conducted to ensure that all Performance Standards are met.
A. Performance Standards Verification Pfan
The purpose of the Performance Standards Verification Plan is to provide a mechanism to ensure that both short-term and long-term Performance Standards
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for the Remedial Action are met. Guidances used in developing the Sampling and Analysis Plan during the Remedial Design phase shall be used. Settling Defendant shall submit a Performance Standards Verification Plan with the Intermediate Design. Once approved, Settling Defendant shall implement the Performance Standards Verification Plan on the approved schedule. The Performance Standards Verification Plan shall include:
1 '
2.
3.
The Performance Standards Verification Field Sampling and Analysis Plan that provides guidance for all fieldwork by defining in detail the sampling and data gathering methods to be used. The Performance Standards Verification Field Sampling and Analysis Plan shall be written so that a field sampling team unfamiliar with the Site would be able to gather the samples and field information required.
The Performance Standards Verification Quality Assurance/Quality Control plan that describes the quality assurance and quality control · protocols which will be followed in demonstrating compliance with Performance standards.
Specification of those tasks to be performed by Settling Defendant to demonstrate compliance with the Performance Standards and a schedule for the performance of these tasks.
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REFERENCES
The following list, although not comprehensive, comprises many of the regulations and guidance documents that apply to the RD/RA process. Settling Defendant shall review these guidances and shall use the information provided therein in performing the RD/RA and preparing all deliverables under this SOW.
1.
2.
3.
4.
5.
6.
7.
"National Oil and Hazardous Substances Pollution Contingency Plan, Final Rule", Federal Register 40 CFR Part 300, March 8, 1990.
"Superfund Remedial Design and Remedial Action Guidance," U.S. EPA, Office of Emergency and Remedial Response, June 1986,. OSWER Directive No. 9355.0-4A.
"Interim Final Guidance on Oversight of Remedial Designs and Remedial Actions Performed by Potentially Responsible Parties," U.S. EPA, Office of Emergency and Remedial Response, February 14, 1990, OSWER Directive No. 9355.5-01.
"Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA, Interim Final," U.S. EPA, Office of Emergency and Remedial Response, October 1988, OSWER Directive No. 355.3-01.
"A Compendium of Superfund Field Operations Methods," Two Volumes, U.S. EPA, Office of Emergency and Remedial Response, EPA/540/P-87 /001 a, August 1987, OSWER Directive No.' 9355.0-14.
"EPA NEIC Policies and Procedures Manual," EPA-330/9-78-001-R, May 1978, revised November 1984.
"Data Quality Objectives for Remedial Response Activities," u;s. EPA, Office of Emergency and Remedial Response and Office of Waste Programs Enforcement, EPA/540/G-87 /003, March 1987, OSWER Directive No. 9335.0-7B.
8. "Guidelines and Specifications for Preparing Quality Assurance Project Plans,• U.S. EPA, Office of Research and Development, Cincinnati, OH, QAMS-004/80, December 29, 1980.
9. "Interim Guidelines and Specifications for Preparing Quality Assurance Project Plans," U.S. EPA, Office of Emergency and Remedial Response, QAMS-005/80, December 1980. ·
1 O. . "Users Guide to the EPA Contract Laboratory Program," U.S. EPA, Sample Management Office, August 1982.
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11 . "Environmental Compliance Branch Standard Operating Procedures and Quality Assurance Manual," U.S. EPA Region IV, Environmental Services Division, February 1, 1991, {revised periodically).
12. "USEPA Contract Laboratory Program Statement of Work for Organics Analysis," U.S. EPA, Office of Emergency and · Remedial Response, February 1988.
13. "USEPA Contract Laboratory Program Statement of Work for lnorganics Analysis," U.S. EPA, Office of Emergency and Remedial Response, July 1988.
14. "Quality in the Constructed Project: A Guideline for Owners, Designers, and Constructors, Volume 1, Preliminary Edition for Trial Use and Comment," American Society of Civil Engineers, May 1988.
15. "Interim Guidance on Compliance with Applicable or Relevant and Appropriate Requirements," U.S. EPA. Office of Emergency and Remedial Response, July 9, 1987, OSWER Directive No. 9234.0-05.
16. "CERCLA. Compliance with Other Laws Manual," Two Volumes, U.S. EPA, Office of Emergency and Remedial Response, August 1988 {Draft), OSWER Directive No. 9234.1-01 and -02.
17. "Guidance on Remedial Actions for Contaminated Ground Water at Superfund Sites," U.S. EPA, Office of Emergency and Remedial Response, {Draft), OSWER Directive No. 9283.1-2.
18. "Guide for Conducting Treatability Studies Under CERCLA," U.S. EPA, Office of Emergency and Remedial Response, Pre-publication Version.
19. "Health and Safety Requirements of Employees Employed in Field Activities," U.S. EPA, Office of Emergency and Remedial Response, July· 12, 1981, EPA Order No. 1440.2. .
20. "Standard Operating Safety Guides," U.S. EPA, Office of Emergency and Remedial Response, November 1984.
21. "Standards for General Industry," 29 CFR Part 1910, Occupational Health and Safety Administration.
22. "Standards for the Construction Industry," 29 CFR 1926, Occupational Health and Safety Administration.
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23. "NIOSH Manual of Analytical Methods," 2d edition. Volumes I -VII, or the 3rd edition, Volumes I and II, National Institute of Occupational Safety and Health.
24. "Occupational Safety and Health Guidance Manual for Hazardous Waste Site Activities," National Institute of Occupational Safety and Health/Occupational Health and Safety Administration/United States Coast Guard/ Environmental Protection Agency, October 1985.
25. "Tl Vs -Threshold Limit Values and Biological Exposure lndice.s for 1987 -88," American Conference of Governmental Industrial Hygienists.
· . 26. "American National Standards Practices for Respiratory Protection," American National Standards Institute. 288.2-1980, March 11, 1981.
27. "Quality in the Constructed Project -Volume 1," American Society of Civil ·Engineers, 1990.
[Other guidances referenced in CD that are not listed above (i.e. QA, Sample and Data Analysis, etc.)]
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SUMMARY OF THE MAJOR DELIVERABLES FOR THE REMEDIAL DESIGN AND REMEDIAL ACTION AT THE GENERAL ELECTRIC/SHEPHERD FARM SUPERFUND SITE
DELIVERABLE
TASK I PROJECT P.LANNING
No deliverables planned as. part of Task I.
TASK II REMEDIAL DESIGN
RD Work Plan (5')
Sampling and Analysis Plan (5)
Health and Safety Plan (5)
Treatability Study Work Plan (7)
Treatability Study Sampling and
Analysis Plan (5)
Treatability Study Health and
Safety Plan (5)
Preliminary Design
Results of Data Acquisition
Activities (5)
Design Criteria Report (5)
Preliminary Plans and
Specifications (5)
Plan for Satisfying Permitting
Requirements (5)
Treatability Study Final
Report (5)
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EPA RESPONSE
Review and Approve
Review and Approve
Review and Comment
Review and Approve
Review and Approve
Review and Comment
Review and. Approve
Review and Approve
Review and Approve
Review and Approve
Review and Approve
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I Intermediate Design
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Draft Design Analyses (5)
Draft Plans and
Specifications (5)
Draft Construction Schedule
Prefinal/Final Design
Complete Design Analyses (5)
Final Plans and
. Specifications (5)
Final Construction
Schedule (5)
Construction Cost Estimate (5)
TASK Ill REMEDIAL ACTION
RA Work Plan (5)
Project Delivery Strategy (5)
Construction Management Plan (5)
Construction Quality Assurance
Plan (5)
Construction Health and Safety
Plan/Contingency Plan (5)
Prefirial Construction
Inspection Report (5)
Final Construction Report (5)
Remedial Action Report (5)
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Review and Comment
Review and Comment
Review and Comment
Review and Approve
Review and Approve
Review and Approve
Review and Comment
Review and Approve
Review and Appfove
Review and Approve
Review and Approve
Review and Comment
Review and Approve
Review and Approve
Review and Approve
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TASK IV OPERATION AND MAINTENANCE
Operation and Maintenal_lJni_<:c~eLJPt'.Jl[sla!!]nWU---------...._,--...!R~e~v'..'.i::e:_w. and Approve
Operation and Maintenance
Manual (5)
TASK V Monitoring
Performance Standards Verification
Plan (5)
Review and Approve
· NOTE: The number in parenthesis indicates the number of copies to be submitted by Settling Defendant. One copy shall be unbound, the remainder shall be bound.
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