NCD986187094_20070702_Reasor Chemical Company_FRBCERCLA RA_Remedial Action 2004 - 2007-OCR

Reasor Chemical remedial action
I of 3
Subject: Reasor Chemical remedial action
From: Sara_ [e-mail]
Date: Tue, 26 Jun 2007 15:00:08 -0400
:ro: [e-mail]
' L ~C: [e-mail], [e-mail], hcd l [e-mail], [e-mail], [e-mail],
J1:fli:l:Y~~vid~on@_wilmer~ale.c~m,_yvonne.bai~x@ITiart_i_ipn~ett_a~~m, ~il!.'Yil_it~@~v~~aw.~om, ~JreIJZ~@~pexcos.com _______ J
Hi, Samantha.
As a follow up to our call last week, I've attached the information that
colleagues in my office (Dale Suiter, botanist, and John Ann Shearer, fish
and wildlife biologist) provided about a potential approach for native
species vegetation planting at the Reasor Site. We would also be happy to
provide suggestions for local consultants with expertise in planting native
plant species and wetland restoration who.could provide a site-specific
course of action for re-vegetating the remediated areas. Since the Consent
Decree calls for "re-vegetation of remediated areas with native plants" and
other site doc~mentation echoes that requirement (e.g., Remedial Action
Work Plan, Scope of Work, Record of Decision, etc), this important
component of the remediation should be addressed before the remedial action
is considered complete.
As I mentioned over the phone last week, I am also very concerned that
insufficient planning and discussion has occurred regarding restoration of
the onsite ponds (#1-4) where contaminated sediments were recently removed.
Although I appreciate that several of the concerns raised in my 6/8/07
email were transmitted in your conditional approval letter for the
Operations and Maintenance Plan, it is concerning that there has been
little feedback from consultants for the responsible party regarding how
these concerns will be addressed. The U.S. Fish and Wildlife Service
(Service) has maintained for nearly four years (see attached
correspondence) that wetland restoration should be a necessary component of
remedial activities at the site. Despite the apparent willingness of the
responsible party to complete.such work, little attention has been given to
developing a wetland restoration plan that outlines intended future
conditions, a strategy for achieving the desired outcome based on
site-specific conditions, and an approach for measuring performance over
time. As we've already noted, "in place" restoration and reliance on
enhanced natural recovery to achieve the restoration may be appropriate at
the Reasor Site; however, it is impossible to gauge the potential for the
ongoing activities to result in successful restoration since the
responsible party has not provided sufficient detail regarding their
strategy for ponds. If sufficient planning and deliberate implementation
are not conducted, the Service likely will not consider the wetland
restoration to be adequate and may work through the Department of the
Interior to assess potential injuries tO natural resources under our
7/2/2007 8:37 AM
Reasor Chemical remedial action
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trusteeship in a Natural Resource Damage Assessment to secure the necessary
resource restoration. Accordingly, if a global settlement of liability for
the Reasor Chemical coffipany site is attractive to the responsible party, we
recommend that 1) implementation of the wetland restoration be postponed,
2) subcontractors with appropriate expertise develop a habitat restoration
plan addressing restoration goals, design criteria to meet the goals, and
performance measures to monitor success, and 3) that the restoration plan
be promptly reviewed by the Service and the U.S. Environmental Protection
Agency, then implemented.
Ongoing remedial activities at the site (and the pace with which they are
progressing) only compounds the need to address these outstanding concerns;
therefore, we recommend a discussion take place as soon as possible between
all parties (including representatives for the responsible party and their
consultants) to determine how these concerns will be addressed.
Thanks for your consideration of these issues. Take care,
Sara
Native plant regeneration guidance:
(See attached file: FWS nativeplant 62507.doc) (See attached file:
TempVegetation_Tab.pdf)-
Prior _correspondence (related to wetland restoration, email record
available by request):
(See attached file, FWS Reasor 112503.pdf) (See attached file,
pondmemol003_Reasor.pdf)(See attached file, FWS_Reasor_080103.pdf)
***********************************************************************
Sara E. Ward
U.S. Fish and Wildlife Service
Raleigh Ecological Services Field Office
P.O. Box 33726
Raleigh, NC 27636-3726
Phone, 919-856-4520 Ext. 30, Fax, 919-856-4556
Email: Sara [e-mail]
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Reasor Chemical remedial action
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7/2/2007 8:37 AM
REV EGET A TION WITH NATIVE PLANTS
• Upon completion of grading and filling with native soil types, immediately plant
temporary vegetation: an annual cover such as rye grass or wheat, not fescue. See
information for "Region 3" (Southern Coastal Plain, Sand Hills, Blackland and Atlantic
Coast Flatwoods) in the attached Table regarding seed rates and recommended planting
dates for temporary vegetation (from A Georgia Guide to Controlling Erosion with
Vegetation, September 1994).
• Then, during the dormant season (December -February) plant native woody vegetation
species per guidelines below. Native herbaceous plant species will likely re-establish
themselves without a targeted planting effort.
• Choose no Jess than three tree species and three shrubs from the following categories.
Plants should be placed at an appropriate density (of trees or shrubs) for the site (e.g., 10
feet). Species listed were selected based on soil survey maps for the site, best
professional judgment of FWS biologists, and consultation with NC Department of
Environmental and Natural Resources' Ecosystem Enhancement Program staff.
Wetland Species (moist area planting)
Trees:
Bald cypress
Sweet bay
Water oak
Swamp chestnut oak
Pond pine
Green ash
Atlantic white cedar
Shrubs/understory trees:
Wax myrtle
Button bush
Spicebush
Horse sugar
Alder
Swamp dogwood
Upland Species (drier area planting)
Trees:
tulip poplar
willow oak
northern red oak
white oak
persimmon
overcup oak
white ash
Shrubslunderstory trees:
wax myrtle
flowering dogwood
winged sumac
black cherry
possum how (Viburnum)
yaupon holly
• Establish a post-planting monitoring plan including performance measures and details
regarding the frequency of monitoring.
Table I. Seed Rates and Planting Dates for Temporary Vegetatioi:i
Seed Rates lL Planting Dates ,L
(Pure Live Seed) Region 1 Region 2 Region 3
Browntop Millet 40#/Ac 4/1-7/1 4/1 -7/15 4/1-7/15
Rye Grain ll 168#/Ac (3 bushels) 7/15-11/30 8/15-12/30 9/1-2/18
Ryegrass 40#/Ac 8/15-ll/15 9/1 -12/15 9/15-1/1
Wheat 180#/Ac (3 bushels} 9/1-I 2/30 9/1-I 2/30 9/15-1/30
I/ Unusual site·conditions may require heavier seeding rates.
2/ Planting dates m;.1y nc'ed to be altered to fir temperature variations and local conditions.
3/ Rye Grain is not the same as Ryegrass:
Calculating Actual Seed Rates to Obtain Recommended Amounts of Pure Live
Seed
Seeding rates listed in this publication rcferto pure live seed. The labeled germination rates
and purity 011 seed packages can be used to determine the percentage of pure live seed (PLS).
PLS is calculated by multiplying the pcrcentagcol'pure seed times the percentage of germination
(expressed in decimal form) and multiplying by 100.
For example, if the labeled see£l germination rate is 70% and the purity is 80%, PL.~
is calculated asf,,llnws:
PLS = 0. 70 germination x 0.80 purity = 0.56 x lOO = 56%
Use the percentage of PLS lo determine the amount of seed needed. Divide the
recommended PLS seeding rate by the actual percentage. of pure live seed to determine lhc
amount of seed needed.
Por example, zf the rf1commended PLS seeding rate is JO pounds per acre and the
calculated PLS is 56%, the actual seeding rate is calculated as follows:
Actual Seed Rate =
Actual Seed Rate =
Recommended PLS seed rate
Percent PLS
10 lbs PLS/acre = 17.9 lbs seed/acre
0.56
It will require I 7.9 pounds of actual seed per acre in this exainple to provide a Pure
Live Seed rate of JO pounds per acre.
6
United States Departm~nt of tlie Interior
FISH AND WILDLIFE SERVICE
!Weigh Field Office
Pou Office Box 55726
Raleigh, North Carolina 276!6-3726
November 25, 2003
MEMORANDUM
TO:
FROM:
Samantha Urquhart-Foster, Remedial Project Manager, North Superfund Remedial Branch, Waste Management Divsion, USEPA, Atlanta, GA
Sara Ward, Ecologist, FWS, Raleigh, NC
SUBJECT: Reasor Chemical Company-Intermediate Design Submittal
Thank you for your November 3, 2003 correspondence requesting U.S. Fish and Wildlife Service (Service) review of the Reasor Chemical Company Intermediate Design Submittal. These comments are intended as technical assistance for the U.S. Environmental Protection Agency's (USEPA) assessments and planning conducted pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.); they do not represent any position that the U.S. Department of the Interior may adopt concerning possible injury to natural resources under their trusteeship. · ·
As I indicated during our November 20'" phone conversation (and in previous correspondence -letter dated August I" and memorandum dated October 23rd), the Service supports restoration of four onsite ponds proposed for remediation given that they provide essential hab.itat to a variety of aquatic-dependent species tl1at currently use the site. Based on discussions during our field visit, onsite restoration options appear feasible in areas where uncontaminated soil excavation is planned on the property for use as fill material during remedial activities. If onsite restoration is the preferred approach, then we recommend that the intermediate design submittal reflect wetland mitigation and habitat restoration plans; however, offsite restoration remains an option if hydrological conditions onsite are not ideal or if the constructi~n schedule for remedial activities prevents planning for onsite restoration at this time.
In addition, Section 02233 of the Intermediate Design Submittal describes details of the seeding and revegetation work anticipated for the site. We understand from talking with you last week that this section will be revised to indicate that native vegetation will be used whenever possible (rather than the seed mixture referenced in Part 2, C). We would be pleased to provide assistance in selection of appropriate plant species and sources of plant material for restoration activities.
We appreciate your commitment to pursue wetland restoration for remediated ponds and use of native plants for revegetation in remediated areas, If you have any questions or concerns regarding these comments, please contact me at Sara_ [e-mail] or 919/856-4520 x.30. ~ w~
cc: Mr. Greg Hogue, REO, DOI/OEPC, Atlanta, GA
Dr. Bill Starke!, FWS, AES/HC, Atlanta, GA
Dr. Diane Beeman, FWS, AES/HC, Atlanta, GA
Ms. Michele Burgess, Acting Chief, USEPA/ETAG, Atlanta, GA NCDSWM-Superfund Section, Raleigh, NC
Dr. Tom Dillon, NOAA, Atlanta, GA
October 23, 2003
MEMORANDUM
TO: Samantha Urquhart-Foster, Remedial Project Manager, North Superfund
Remedial Branch, Waste Management Divsion, USEPA, Atlanta, GA
FROM: Sara Ward, Ecologist, FWS, Raleigh, NC
SUBJECT: Reasor Chemical Company -Onsite Wetland Restoration
Per our phone conversation yesterday, this memorandum serves to memorialize our prior
discussion (during the August 27th site visit) regarding restoration of onsite ponds as part of the
remedial action at the Reasor Chemical Company Site in Castle Hayne, New Hanover County,
NC. As indicated in our August I" correspondence, the U.S. Fish and Wildlife Service (Service)
supports restoration of four onsite ponds proposed for remediation given that they provide
essential habitat to a variety of aquatic-dependent species that currently use the site. We
appreciate your commitment and the willingness of the current landowners to compensate for the
anticipated lost use of wetland and open water habitat functions resulting from excavation and
subsequent backfilling of these areas. Although onsite restoration options appear feasible (due to
planned excavation of uncontaminated soil on the property for use as fill material during
remedial activities), consideration of off-site restoration remains an option if onsite hydrological
conditions are not ideal. We understand ·that a design plan addressing wetland mitigation and
habitat restoration will be incorporated in future site documentation and we would be pleased to
review these materials when available. When mitigation and restoration plans are finalized, we
recommend that perfonnance criteria be incorporated in design plans so restoration goals can be
monitored in the future.
If you have any questions or concerns regarding these comments, please contact me at
Sara_ [e-mail] or 919/856-4520 x.30.
United States Department of the Interior
FISH AND WILDLIFE SERVICE
R>lcigh Field om~
Post Office Box 33726
Raleigh, Nonh Carolina 21656-3726
August 1, 2003
Ms. Samantha Urquhart-Foster, Remedial Project Manager
North Superfund Remedial Branch
Waste Management Divsion
U.S. Environmental Protection Agency
Atlanta Federal Center
61 Forsyth Street
Atlanta, Georgia 30303-8960
Dear Ms. Urquhart-Foster:
FILE COPY
Thank you for your July 17, 2003 correspondence requesting U.S. Fish and Wildlife Service
. (~ervice) revi~w of the Desigri Criteria Report (Revision 0) and the Data Evaluation Report
. (Revision 1) for the Reasor Chemical Company Site in Castle Hayne, New Hanover County, NC.
These comments are intended as technical assistance for the USEPA's assessments and planning
conducted pursuant to the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. 9601 et seq.); they do not represent any position that the
U.S. Department of the Interior may adopt concerning possible injury to natural resources under
their trusteeship.
Several preliminary design assumptions and parameters are identified in the Design Criteria
Report (DCR) to support remedial design for the selected remedy at the Reasor Chemical site
(removal of soil from contaminated areas onsite and removal of sediment/ water from four
ponds with subsequent backfilling, regrading, and revegetation). Given the habitat value present
onsite, we appreciate that Section 3.5 of the DCR (Long-Term Performance Monitoring and
Operations and Maintenance Requirements) identifies revegetation of excavated areas with
native plants as a remedial goal. Previously the Record of Decision (ROD) for the site (dated
September 2002) indicated that cover of regraded areas would incorporate both native vegetation
and crushed stone. We would be pleased to provide assistance in se[e·ction of appropriate plant
species and sources of plant material for site restoration activities. Consistent with the goal of
revegetation with native plant species, it is important to detaii performance criteria for this
objective (e.g., percent cover of desirable vegetation to be achieved iri a given time period) in
future remedial design plans.
Section 3.6 of the DCR (Compliance withARARs, Pertinent Codes, and Standards) presents the
assumption that remediation of onsite ponds is unlikely to adversely impact jurisdictional
wetlands (to be verified by the U.S. Army Corps of Engineers). According to Appendix D
(Wetland Delineation Report) of the Data Evaluation Summary Report, portions of all four onsite
ponds proposed for remediation satisfy wetland criteria. While these ponds are of man-made
origin, they I) provide essential habitat to a variety of aquatic-dependent species currently using
the site, 2) support functions and values of wetland or open water habitats, and 3) are
hydrologically linked to downgradient wetland areas (including onsite drainage ditches and
Prince George Creek). The Service believes that wetland and open water habitat values which
are degraded or lost as part of the remedial action for site clean-up should ultimately be restored.
Compensation for lost use of wetland and open water-habitat functions and values of site ponds
and wetlands should be addressed through wetland mitigation and habitat restoration in future
remedial design plans. We would be pleased to further discuss evaluation and restoration of
wetland and aquatic habitats, including on-and off-site options, with you, the responsible parties, .
and site contractors in support of additional remedial design planning.
The Service appreciates the opportunity to comment on the Design Criteria Report and the Data ·
Analysis Report for the Reasor Chemical Company Site. If you have any questions or comments
regarding our recommendations, please contact me at 919/856-4520, (Ext. 30). If you would like
to discuss restoration of native plant communities onsite and/ or sources of plant material for
planning purposes, please contact Mr. Dale Suiter (Ext. 18), our staff botanist, for additional
information.
Sincerely,
Sara Ward
Ecologist
cc: Mr. Greg Hogue, REO, DOI/OEPC, Atlanta, GA
Dr. Bill Starke!, FWS, AES/HC, Atlanta, GA
Dr. Diane Beeman, FWS, AES/HC, Atlanta, GA
Ms. Michele Burgess, Acting Chief, USEPA/ETAG, Atlanta, GA
NCDSWM-Superfund Section, Raleigh, NC
Dr. Tom Dillon, NOAA, Atlanta, GA
2
•
May 25, 2007
Ms, Samantha Urquhart-Foster
Remedial Project Manager
U.S. Environmental Protection Agency
Region IV
61 Forsyth Street, SW
Atlanta, Georgia 30303
Subject:
Dear Samantha:
Summary of Pre-Construction l\'leeting
Reasor Chemical Site, Castle Hayne, North Carolina
Apex Project No. 5 I 0120.006
•
136 Fairview, Suite 125
Mooresville, NC 28117
Telephone ( 704) 799-6390
Facsimile [phone]
(Via E-Mail)
Apex Companies LLC (Apex) is submitting this letter and summary of the completed Pre-Construction
Conference at the Site which occurred on April 18, 2007. The Pre-Construction Conference was held and this
summary prepared to conform to the executed Statement of Work, Section IV, Task 11.B. The conference
summary is attached to this letter.
Should you have any questions regarding this Progress Report, do not hesitate to contact the Project Coordinator.
Sincerely,
APEX COMPANIES, LLC
~,t:1.-14
Bruce D. Reilly, P,E,
Project Coordinator
Attachment
cc: Bonnie Sawyer, Esq.
Hilda Dill
Yvonne Bailey, Esq.
Marguerite Mclamb, Esq.
David Mattison, NCDENR DWM
Jane Sullivan
William White, Esq.
Jeffrey Davidson, Esq.
• •
SUMMARY OF PRE-CONSTRUCTION CONFERENCE
REASOR CHEMICAL SITE
CASTLE HAYNE, NORTH CAROLINA
Date of Conference: April I 8, 2007
Attendees: Scott Sullivan (PRP) Yvonne Bailey (PRP)
Mike Yost (Contractor)
Shiloh Harvey (Contractor)
Rick Kinna (Contractor) Bruce Reilly (Contractor)
Charles Hughart (Contractor)
David Mattison (NCDENR)
Richard Campbell (EPA)
Sara Ward (USFWS)
Samantha Urquhart-Foster (EPA)
Summary: The conference included an initial meeting at the access gate on North College Road and then
consisted of a walking tour led by Mr. Mike Yost of Apex Companies LLC (Apex). (Apex is the contractor
selected by the PRPs to perform the Site remediation activities.) Mr. Yost is the Remediation Manager for
Apex and his team will be directly performing the remediation. The tour included stops at the Investigation
Derived Waste Drums, Copper Scrap Area; Drum Disposal Area; Pond 4; Pond 3; Pond 2 and Pond I.
Key items discussed:
Re-grading of Areas of Soil Removal: Apex will re-grade areas where soil removal actions will take place
(Scrap Copper, Drum Disposal, and Pipe Shop) to promote positive drainage away from these areas after soil
removal activities are completed.
Drum Disposal Area: Apex will separate metal material from the soils and drum contents to the extent
possible to allow for recycling of the metal. Apex will install mulch and/or geotextile materials along sides of
swale that runs through the Drum Disposal Area to minimize the potential for surface erosion after removal
activities and re-grading are completed. ·
Ponds: Apex will be using a long-reach track hoe to remove the sediments from the ponds to minimize the
amount of damage to banks and surfaces around the pond boundaries. Some limited tree removal actions will
be needed to allow access to the ponds for remediation. The Fish and Wildlife Service asked questions and
made a request for a Habitat Restoration Plan to document Apex's approach on assuring that existing conditions
will be restored after remediation. Attendees all agreed that the four ponds are not regulated wetlands since the
ponds are man-made. The attendees agreed that an existing Wetland Delineation Report (prepared by Roy F.
Weston for the EPA) could be used to document the existing (pre-remediation) conditions. Apex agreed to
prepare a brief restoration plan that would present the steps to be taken during remediation (bank stabilization
efforts, geotextile fabric addition, etc.) and to develop a plan to be utilized to confirm the suitability of the
restoration efforts over time. The attendees agreed that this plan does not have to be submitted prior to start of
remediation, but needed to be submitted prior to completion of remediation activities.
• •
~,"i'i:D ST◄,-~ ······-f°--ft .'.'t .. ······-·.UNITED STAT.ES.ENVIRO~~G~~!~l PROlECTION·AGENC¥· ··· ·· --·-~·····-····---···· ······
•~o \ : ATLANTA FEDERAL CENTER
<I; ,/i' 61 FORSYTH STREET
., PRO"' ATLANTA, GEORGIA 30303·8960
October 31, 2007
4SD-SRSEB
Mr. Bruce D. Reilly, P.E.
Apex Companies, LLC
136 Fairview Road, Suite 125
Mooresville, NC 28117
SUBJECT: Comments on the Interim Remedial Action and Final Construciion Report
September 2007
Reasor Chemical Co. Site
Castle Hayne, New Hanover County, North Carolina
Dear Mr. Reilly:
I have reviewed the Interim Remedial Action and Final Construction Report that was submitted
by Apex Companies LLC in September 2007 for the Reasor Chemical Co. Site. The North
Carolina Department of Environment and Natural Resources (NCDENR} also reviewed this
document. Upon receipt ofNCDENR's comments, I revised mine to eliminate some duplication.
My comments are attached. NCDENR's comments are enclosed.
Please revise the document to reflect incorporation of EPA and NCDENR's comments. If you
have any questions, feel free to contact me at either (404} 562-8760 or via email at
[e-mail].
Attachment
Enclosure
Sincerely,
Samantha Urquhart-Foster
Remedial Project Manager
Superfund Remedial and Site Evaluation Branch
cc (by e-mail only): Mr. David Mattison
Ms. Hilda C. Dill
Ms. Jane C. Sullivan
Mr. Jeffrey J. Davidson
Ms. Marguerite McLamb
Ms. Yvonne C. Bailey
Mr. William A. White
Internet Address (URL) • http;l/www.epa.gov .
Recycled/Recyclable• Printed wilh Vegetable 011 Based Inks on Recycled Paper (Minimum 30% Postconsumer)
• • Reasor Interim RA Report Comments
Page 2 of8
EPA Comments on the Interim Remedial Action and Final Construction Report
General Comments
EPA shared draft comments on the document with NCDENR prior to their submittal of
comments. Attempts were made to avoid duplication of comments. Upon receipt of
NCDENR comments, I revised EPA's comments to eliminate additional duplication. EPA
concurs with NCDENR's comments, which are enclosed.
I. Please refer to NCDENR's General Comment #1. The guidance document that
NCDENR referred to, Close Out Procedures for National Priorities List Sites (EPA,
2000), can be found at
http://www.epa.gov/supcrfund/programs/npl hrs/closeoutlindex.htm
2. Please add information related to decontamination of personnel and equipment. The
log notes state on 6/11/07 a decon station was built. Please discuss what the station
consisted of and how it was utilized. Discuss how residue was collected and
treated/disposed.
3. Please discuss tree removal from around the pond areas and how this may affect
natural revegetation.
4. In the various sections, indicate how the soil, sediment, drums, etc. were moved from
the excavation areas to the stockpiles or roll-off boxes. The log notes indicate this
was performed by a dump truck.
Section 1.0
5. The Introduction should also include the missing components identified in Exhibit 2-
3 of the Close Out Procedures for National Priorities List Sites.
Section 2.2, Scrap Copper Area, Remedial Action
6. Please add dates that the remedial actions occurred in this area.
7. The second sentence of Section 2.2 states that Figure 3 shows the approximate
locations ofXRF data. Table 4 identifies many more sample locations than are
present on Figure 3. Please revise the text to be more specific about what data is
presented, or revise Figure 3 to illustrate all XRF data points.
8. Please add approximate dimensions of the excavation area (i.e. 49 feet x 51 feet x I
foot deep).
9. The second paragraph of Section 2.2 states that a sample was collected for TCLP
analysis. Please include a discussion regarding why the sample was collected.
I 0. The third paragraph of Section 2.2 states that clean fill material was used in
restoration. Please identify where this material came from and how it was determined
to be "clean".
• • Reasor Interim RA Report Comments
Page 3 of8
Section 2.4, Scrap Copper Area, laboratory Analytical Results
11. Please revise the first sentence in Section 2.4 as follows "The cleanup goals specified
in the ROD Amendment were obtained in the Scrap Copper Area during the
remediation efforts performed by Apex, as confirmed by the analytical results which
are included in Appendix A."
12. Please add a discussion of the TCLP results.
13. Please revise "Table 2" to Table 3.
Section 3.1.2 Remedial Action
14. Please revise the fourth sentence of Section 3.1.2 as follows, "Liquids were pumped
out of the drums and into the on-site water filtration system."
15. The discussion is primarily about the drums with liquids. Please state what the other
drums contained and what was done with the non-liquid contents.
16. Please state where this waste stream was disposed· and on what date. If a manifest
was used, include it in Appendix D.
Section 3.2.2, Remedial Action {Drum Disposal Area)
17. Please add dates for when remedial actions occurred in this area.
I 8. Please move the following to Section 6.2 regarding groundwater, "After discussions
with EPA and NCDENR, Apex installed a second lime dosage in a trench dug to
groundwater depth between the Drum Disposal Area and the MW-7 monitoring well
cluster." Also add more details such as the date(s) this activity occurred and why it
was performed since it was not called for in the ROD Amendment.
19. The log notes on 6/7/07 state that at 0820 the "excavator picked up a drum and lightly
crushed it. Wet, black tar spilled out." Please add this information to the body of the
report and explain what was done in response to this spill.
20. The log notes on 6/8/07 state "placed drums containing liquids on plastic sheeting
near soil staging area." Please explain what was done with the liquids in these drums
and approximately how many drums contained liquids.
Section 3.2.3 Confirmation Sampling Activities {Drum Disposal Area)
21. Please delete "Approximate" from the beginning of the first sentence of Section 3.2.3 .
. It is repetitive.
Section 3.2.4 Laboratory Analytical Results
22. Please revise the second sentence in Section 3.2.4 as follows, "The cleanup goals
specified in the ROD Amendment were obtained in the Drum Disposal Area during
the remediation efforts performed by Apex, as confirmed by the analytical results
which are included in Appendix A."
•
Section 4.2 Remedial Action (Pipe Shop Area)
•
Reasor Interim RA Report Comments
Page4of8
23. Please add the dates for when remedial actions occurred in this area.
24. Please add dimensions of excavated area, volume removed, and location of disposal.
25. Please state whether the excavated soil was stockpiled or directly loaded into trucks
for disposal.
Section 4.4 Laboratory Analytical Results (Pipe Shop Area)
26. Please revise the third sentence in Section 4.4 as follows, "The cleanup goals
specified in the ROD Amendment were obtained in the Pipe Shop Area during the
remediation efforts performed by Apex, as confirmed by the analytical results which
are included in Appendix A."
New Section Needed
27. Please add a section to discuss activities associated with surface water. This
discussion should include the dates that surface water was pumped and treated. It
should also include volume of water treated, a description of the treatment process
with specifics on each system component, sample collection process (i.e. samples
collected at xxx volume treated), etc. It should also discuss any filter or. resin
changes. The discussion should also include a summary of the analytical results and
reasons why treated water was discharged that did not achieve cleanup goals specified
in the ROD Amendment. It should discuss additional soil samples collected after
realizing that this occurred. This also would be a candidate for discussion in the
"Lessons Learned" portion of the Interim RA Report.
Section 5.0 Lagoon Areas
28. Please discuss the clay liner observed at the base of the ponds. For each pond,
indicate if the clay liner was observed, and whether or not this defined the limit of
excavation.
29. Please discuss breaches that were identified in some of the pond walls.
30. Please discuss why Total PAHs were not analyzed for the Ponds. Table 47 of the
ROD Amendment identified the cleanup goal for sediment as Total PAHs rather than
only the three SVOCs analyzed.
Section 5.1.2 Remedial Action (Lagoons I and 2)
31. Please add the dates for when remedial actions occurred in this area.
32. The first paragraph of Section 5.1.2 includes the depth of excavations. However,
please add the other dimensions of the excavated areas (i.e. length and width).
33. Please modify the fourth sentence of Section 5.1.2 to include the final slope ratio of
the banks of the restored lagoon.
34. Please state the depth of the fill material placed on the bottoms of the lagoon during
restoration.
• •
Reasor Interim RA Report Comments
Page 5 of8
35. Please add information regarding the source and type of fill material used.
Section 5.1.3 Confirmation Sampling Activities (Lagoons I and 2)
36. Please move the-last two sentences in Section 5.1.3 to a new paragraph. That new
paragraph should also discuss sampling methodology. Discuss what approaches were
used to ensure sample collection was from the correct depth since fill was placed on
top of the original excavation bottom.
Section 5.1.4 Laboratory Analytical Results (Lagoons I and 2)
37. Please revise the second sentence in Section 5.1.4. It is uncertain whether or not
cleanup goals were achieved for two chemicals.
38. Please add a discussion regarding detection limits being higher than the ROD
Amendment cleanup goals for methyl ethyl ketone (in original sample for Pond 2)
and (3 and/or 4)-methyl phenol (in original samples and August resample).
Section 5.2.2 Remedial Action (Lagoon 3)
39. Please add the dates for when remedial actions occurred in this area.
40. The first sentence of Section 5.2.2 includes the depth of excavation. However, please
add the other dimensions of the excavated areas (i.e. length and width).
4 I: Please modify the fifth sentence of Section 5.2.2 to include the final slope ratio of the
banks of the restored lagoon.
42. Please state the depth of the fill material placed on the bottoms of the lagoon during
restoration.
43. Please add information regarding the source and type of fill material used.
44. Please add more information regarding excavated sediment. Was it stockpiled or
direct loaded into trucks for disposal?
45. Please add the volume of sediment removed from Pond 3.
46. Please state where the sediment was disposed and add manifests to Appendix D.
Section 5.2.3 Confirmation Sampling Activities (Lagoon 3)
47. Please move the last two sentences of the first paragraph of Section 5.2.3 to a new
paragraph. That new paragraph should also discuss sampling methodology. Discuss
what approaches were used to ensure sample collection was from the correct depth
since fill was placed on top of the original excavation bottom.
Section 5.2.4 Laboratory Analytical Results (Lagoon 3)
48. Please revise the second sentence in Section 5.2.4. Discussion is needed regarding
detection limits being higher than the ROD Amendment cleanup goals for methyl
ethyl ketone (in original samples and August resample) and (3 and/or 4)-methyl
phenol (in August resample).
• • Reasor Interim RA Report Comments
Page 6 of8
49. Please also state that (3 and/or 4)-methyl phenol was not analyzed in the original
confirmation sample and provide reason for whyit wasn't.
Section 5.3.2 Remedial Action (Lagoon 4)
50. Please add the dates for when remedial actions occurred in this area.
5 I. The second sentence of Section 5 .3 .2 includes the depth of excavation. However,
please add the other dimensions of the excavated areas (i.e. length and width).
52. The fourth sentence of Section 5.3.2 states that manifests are included in Appendix D.
However, the copy of the document that I received does not include manifests from
Pond 4. Please ensure they are included in the revised document.
53. Please modify the seventh sentence of Section 5.3.2 to include the final slope ratio of
the banks of the restored lagoon.
54. Please state the depth of the fill material placed on the bottoms of the lagoon during
restoration.
55. Please add information regarding the source and type of fill material used.
Section 5.3.3 Confirmation Sampling Activities (Lagoon 4)
56. Please move the last two sentences of the first paragraph of Section 5.3.3 to a new
paragraph. That new paragraph should also discuss sampling methodology. Discuss
what approaches were used to ensure sample collection was from the correct depth
since fill was placed on top of the original excavation bottom.
Section 5.3.4 Laboratory Analytical Results (Lagoon 4)
57. Please revise the second sentence in Section 5.2.4. Discussion is needed regarding
detection limits being higher than the ROD Amendment cleanup goals for methyl
ethyl ketone (in August resample, although detection limit was below ROD goal in
original sample) and (3 and/or 4)-methyl phenol (in the original sample).
58. Please also state that (3 and/or 4)-methyl phenol was not analyzed in the resampling
event and provide reason for why it wasn't since the detection limit (420 µg/L) of the
original sample (CFP4SO-12) exceeded the ROD Amendment cleanup goal (5_0
µg/L).
Section 6.2 Groundwater Monitoring Activities and Schedule
59. The first few sentences of Section 6.2 have nothing to do with monitoring or
schedule. Therefore, please revise the Section heading to "Lime Application".
60. Please clarify the first sentence of Section 6.2. Was the lime placed on the surface or
subsurface?
61. Please add the quantity oflime placed around wells MW-7S and MW-70 as well as
the dimensions of placement.
• • Reasor Interim RA Report Comments
Page 7 of8
62. Please move information from Section 3.2.2 to this section as previously mentioned,
and include more details.
63. Please revise the second sentence of Section 6.2 to, "Past groundwater sampling has
indicated acidity in the shallow groundwater in this area of the Site.
64. Please delete the third sentence of Section 6.2.
65. Please move the last two sentences of Section 6.2 to a new Section 6.3 titled
"Groundwater Monitoring Activities and Schedule".
66. Please add more information in the new Section 6.3 regarding sample frequency and
analytes to be monitored.
67. Please add the date for the first planned sampling event in the new Section 6.3 (month
and year is sufficient).
Section 8.0 CONCLUSIONS
68. Please revise the only sentence in Section 8.0, as it is not accurate according to
analytical data. It is hoped that soil and sediment concentrations of (3 and/or 4)-
methyl phenol and methyl ethyl ketone are below the ROD Amendment cleanup
goals, however, this is not known for sure for some of the ponds.
69. Surface water treatment did not achieve surface water standards. The impact of this
should be discussed.
70. Please expand the discussion regarding conclusions. It should discuss detection limits
being greater than the ROD Amendment cleanup goal and how this affects the
protectiveness of the implemented remedy.
Future Lessons Learned Section
71. For the future Lessons Learned Section, the following items should be included, at a
minimum: surface water discharge prior to review of analytical data, detection limits
greater than Amended ROD cleanup goals.
Table I
72. Please change the Table heading, as well as the column heading to "ROD
Amendment Cleanup Goals".
73. Under the sediment heading, please delete benzo(a)pyrene, benzo(b &/or
k)tluoranthene and dibenzo(a,h)anthracene. They should be replaced with "Total
PAHs" which had a cleanup goal of 13,660 µg/kg. (Refer to Table 47 of the ROD
Amendment.)
74. Under the sediment heading, please revise the cleanup goal for copper to 197 mg/kg.
(Refer to Table 47 of the ROD Amendment.)
• •
Reasor Interim RA Report Comments
Page 8 of8
Table 3
75. Please modify the title to "Summary of Soil and Sediment Laboratory Analytical
Results for Confirmation Samples".
76. Please modify the column header for Copper to reflect the sediment cleanup goal
(197 mg/kg) in addition to the already existing soil cleanup goal (2,700 mg/kg).
Additional Tables Needed
77. Please add a table that includes surface water sample data.
78. Please add a table that includes TCLP data that was mentioned in the report.
79. Please add a table that includes soil sampling data that was performed in late August
after realization that surface water had been discharged that had not met treatment
standards.
Figure 2
80. Please replace "Front Drum Area" with "IDW Area".
Figure 6
81. The report was submitted prior to installation of the lime trench. Please ensure the
figure accurately portrays the actual implementation.
Figure 9
82. Please clearly identify sample numbers rather than using one marker for multiple
sample locations.
83. Please verify the accuracy of the sample depiction. The figure indicates CFPISO-36
and CFP2SO-37 are sidewall samples. These were the resamples collected in August.
Were they truly sidewall samples? If so, please discuss this in the text of Section 5.1.
Figure 10
84. Please verify the accuracy of the sample description and placement on the figure for
sample CFP3SO-38. This was a re-sample collected in August. Was it truly a
sidewall sample? If so, please discuss this in the text of Section 5.1.
Figure 11
85. Figure 11 states and illustrates that CFP4SO-39 was a sidewall sample. However, the
text in section 5.3.3 stated that CFP4SO-39 was collected in the same general location
as CFP4SO-12. Please ensure sample location is depicted correctly or modify the text
in Section 5.3.3.
Appendix A
86. Please add the TCLP results mentioned in Section 2.2 to Appendix A.
87. Please add surface water data to Appendix A.
•
Ms. Samantha Urquhart-Foster
Remedial Project Manager
•
October 29, 2007
Superfund Remedial & Site Evaluation Branch
Waste Management Division
US EPA Region 4
61 Forsyth Street, Southwest
Atlanta, Georgia 30303
RE: Interim Remedial Action and Final Con_struction Report
Reasor Chemical NPL Site
Castle Hayne, New Hanover County, NC
NCD986 I 87094
Dear Ms. Urquhart-Foster:
The North Carolina Department of Environment and Natural Resources (NC DENR)
Superfund Section has received the /11/erim Remedial Actio11 a11d Fi11al Co11struction
Report for the Reasor Chemical National Priority List (NPL) Site. The NC DENR
Superfund Section has reviewed this document and offers the following attached
comments.
The NC DENR Superfund Section appreciates the opportunity to comment on this
document. If you have any questions or comments, please feel free to contact me at (919)
508-8466.
Attachment
Sincerely,
David B. Mattison
Environmental Engineer
NC DENR Superfund Section
•
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page I
•
INTERIM REMEDIAL ACTION AND FINAL CONSTRUCTION REPORT
Reasor Chemical NPL Site
General Comments
I. The Interim Remedial Action and Final Construction Report must follow the
outline given in Exhibit 2-3 of the Close Out Procedures for National Priorities
List Sites (EPA, 2000). As submitted, the Interim Remedial Action and Fi11al
Constructio11 Report (Report) is lacking many elements and the detail necessary
to demonstrate the achievement of the remedial action objectives. The Report
shall be a stand-alone document in that all elements of the remedial action are
described in such detail as to assure the regulatory entities and the general public
that the Site has been remediated to the standards given in the Amended Record
of Decision (ROD) (EPA, June 2007) for the Site.
2. Please revise the Report to include a discussion of site mobilization activities,
including site set up, roadway improvement, removal of vegetation (i.e., trees and
brush) and water treatment facility construction.
3. Please revise the Report to include a thorough discussion of health and safety
activities, including daily tailgate safety meetings, safety audits, decontamination
activities, dust suppression activities, dust monitoring, etc.
4. The second paragraph of Section 2.2 discusses waste characterization activities
for the Scrap Copper Area. The field notes submitted as Appendix C indicate that
laboratory analyses were conducted for the Paint Filter Test and Toxicity
Characteristic Leachate Procedure (TCLP) for waste disposal characterization
purposes. Please revise the Report and provide a complete discussion of waste
characterization activities for all waste streams and the results of these and all
other laboratory analyses. Furthermore, please provide copies of all waste
disposal characterization applications for the appropriate waste disposal facilities.
5. The field notes submitted as Appendix C indicate that pre• and post-excavation
elevations were collected for Pond 3 and Pond 4. Please revise the Report and
provide a discussion of the survey data collected, and appropriate tables and
scaled figures as needed, in order to demonstrate that adequate depths of sediment
were removed from Pond 3, Pond 4 and all other areas slated for remediation.
• •
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page 2
6. The field notes submitted as Appendix C indicate that Global Positioning System
· (GPS) coordinates were obtained for the Scrap Copper Area, Drum Disposal Area
and Pipe Shop Area. Please revise the Report and provide a discussion of the
GPS data collected, including appropriately scaled drawings demonstrating the
extent of excavation, soil sampling points for delineation purposes, soil sampling
points for confirmatory purposes, nearby structures, etc. for the Scrap Copper
Area, Drum Disposal Area, Pipe Shop Area and all other areas slated for
remediation.
7. The field notes submitted as Appendix C indicate that a photoionization detector
(PIO) was used for soil screening during Drum Disposal Area and pond
excavation activities. Please revise the Report and provide greater discussion of
these activities, including appropriate tables and scaled figures as needed, in order
to demonstrate that adequate depths of soil and sediment were removed from the
Drum Disposal Area and the ponds and all other areas slated for remediation.
8. Please revise the Report to include much greater detail, including appropriate
tables and figures, regarding surface water collection, treatment, discharge,
sampling requirements, sampling methodology, sample results, etc.
9. Please revise the Report to include much greater detail, including appropriate
tables and scaled figures, regarding the pelletized lime and crushed shell
applications. The rationale behind the approach should also be presented.
10. Please revise the Report to include much greater detail regarding site restoration
activities, including, but not limited to, backfill source, backfill type, depths
and/or volumes of backfill placed, grading and sloping, erosion control measures,
seeding types and quantities, anticipated recovery, etc.
Specific Comments
Table of Contents
10. Please correct the Table of Contents to indicate that the title of Figure I is "Site
Location Map".
Section 1.2 Historic Property Use and Ownership
11. The first sentence of Section 1.2 insinuates that there is some question as to the
site history. Please revise Section 1.2 to clarify any discrepancies in the site
history.
12. Please place a period following the last sentence of Section 1.2.
•
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page 3
Section 1.3 General Site Layout
•
13. Please revise the third sentence of Section 1.3 to state "There are also areas where
surface disposal of copper scrap occurred (Scrap Copper Area), a.pipe shop
where surface disposal of pipe materials occurred (Pipe Shop Area), and a swale
where drum containing unknown materials were stored and/or disposed (Drum
Disposal Area."
14. The last sentence of Section 1.3 indicates that the detailed layout of the Site
comes from EPA and NC DENR reports. However Figure 2 of the Report
indicates that the figure was drafted by "CAH" in September 2007. Please clarify
this discrepancy. Furthermore, please verify the Site conditions and/or revise
Figure 2 such that the last sentence of Section 1.3 can be struck from the Report.
Section 2.1 Proposed Work Plan
I 5. Please correct the last sentence of Section 2.1 to state " ... and was to be
supplemented by the confirmation samples described in Section 2.3."
Section 2.3 Laboratory Analytical Results
16. Please revise the second sentence of Section 2.3 to state "Table 3 presents.· .. "
17. Please revise Section 2.3 to include a discussion of these matrix spike and matrix
spike duplicate quality assurance/quality control (QA/QC) samples and all other
QA/QC samples collected for the Site.
Section 3.0 Drum Disposal Areas
18. Please revise Section 3.1 and the remainder of the Report to reference the Front
Drum Area as the Investigation Derived Waste Area.
Section 5.1.2 Remedial Action
19. The last sentence of the first paragraph of Section 5.1.2 indicates that
approximately 528 tons of sediment was removed from Lagoon I and
approximately 872 tons of sediment was removed from Lagoon 2. The copies of
waste disposal manifests submitted as Appendix D indicate that approximately
534 tons of sediment was removed from Lagoon I and approximately 883 tons of
sediment was removed from Lagoon 2. Please clarify these discrepancies.
•
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page 4
Section 5.1.3 Confirmation Sampling Activities
•
. 20. The laboratory analytes given in the fifth sentence of the second paragraph of
Section 5.1.3 do not agree with the chemicals of concern as given in the Amended
ROD (EPA, June 2007). Please clarify this discrepancy.
Section 5.1.4 Laboratory Analytical Results
21. Section 5.1.4 states that the clean-up levels specified in the ROD were achieved.
The chemicals of concern and clean-up goals specified in the Amended-ROD
(EPA, June 2007) were not achieved. Please correct Section 5.1.4 in order to
demonstrate that the remedial action objectives were achieved.
Section 5.2.3 Confirmation Sampling Activities
22. The laboratory analytes given in the first sentence of the second paragraph of
Section 5.2.3 do not agree with the chemicals of concern as given in the Amended
ROD (EPA, June 2007). Please clarify this discrepancy.
Section 5.2.4 Laboratory Analytical Results
23. Section 5.2.4 states that the clean-up levels specified in the ROD were achieved.
The chemicals of concern and clean-up goals specified in the Amended ROD
(EPA, June 2007) were not achieved. Please correct Section 5.2.4 in order to
demonstrate that the remedial action objectives were achieved.
Section 5.3.3 Confirmation Sampling Activities
24. The laboratory analytes given in the first sentence of the second paragraph of
Section 5.3.3 do not agree with the chemicals of concern as given in the Amended
ROD (EPA, June 2007). Please clarify this discrepancy.
Section 5.2.4 Laboratory Analytical Results
25. Section 5.3.4 states that the clean-up levels specified in the ROD were achieved.
The chemicals of concern and clean-up goals specified in the Amended ROD
(EPA, June 2007) were not achieved. Please correct Section 5.3.4 in order to
demonstrate that the remedial action objectives were achieved.
•
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page 5
•
Section 6.1 Groundwater Monitoring Well Abandonment Activities
26. Section 6.1 and the well abandonment records submitted as Appendix E indicate
that Bridger Drilling Enterprises, Inc. conducted the well abandonment activities
at the Site. However, the field notes submitted as Appendix C indicate that
Carolina Drilling conducted the well abandonment activities at the Site. Please
clarify this discrepancy.
27. Please revise the Report to include a figure depicting the locations of the
monitoring wells.
Section 6.2 Groundwater Monitoring Activities and Schedule
28. Please revise Section 6.2 to discuss in detail the groundwater monitoring activities
and schedule.
Section 7 .0 Final Construction Report
29. Please rename Section 7.0 to "Pre-Final/Final Construction Inspection".
Section 8.0 Conclusions
30. Section 8.0 states that the clean-up levels specified in the ROD were achieved.
The chemicals of concern and clean-up goals specified in the Amended ROD
(EPA, June 2007) were not achieved. Please correct Section 8.0 in order to
demonstrate that the remedial action objectives were achieved.
Table 1 ROD Clean-Up Levels
31. Please correct the spelling of the word "Castle" in the heading for Table I.
32. Table I does not agree with the clean-up goals expressed in the Amended ROD
(EPA, June 2007) for the Site. Please correct this oversight.
Table 2 Master Analytical Table
33. The target analyte/reporting lists given in Table 2 do not agree with the chemicals
of concern as given in the Amended ROD (EPA, June 2007). Please clarify this
discrepancy.
34. Please correct the spelling of the word "Equipment Blank" in the last section of
Table 2.
•
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page 6
•
Table 3 Summary of Laboratory Analytical Results
35. Table 3 does not agree with the clean-up goals expressed in the Amended ROD
(EPA, June 2007) for the Site. Please correct this oversight.
36. Please revise Table 3 to include the method detection limits rather than "ND" for
non-detect.
37. Table 3 indicates that laboratory results are pending for 3,4-methyl phenol for
sample numbers CFPlSO-36, CFP2SO-37, and CFP3SO-38. However, the
laboratory analytical data submitted as Appendix A indicates that the method
detection limits exceeded the clean-up goals expressed in the Amended ROD.
Please clarify this discrepancy.
38. Table 3 indicates that the method detection limits exceeded the clean-up levels
expressed in the Amended ROD for 3,4-methyl phenol for sample numbers
CFP3SO-1 l, CFPiSO-13, CFPiSO-14 MS, and CFPiSO-14 MSD. However, the
laboratory analytical data submitted as Appendix A indicates that no analysis was
conducted for 3,4-methyl phenol for these sediment samples. Please clarify this
discrepancy.
39. Table 3 indicates that laboratory results are pending for 3,4-methyl phenol for
sample number CFP4SO-39. However, the laboratory analytical data submitted
as Appendix A indicates that no analysis was conducted for 3,4-methyl phenol for
this sediment sample. Please clarify this discrepancy.
40. Table 3 indicates that methyl ethyl ketone (2-butanone) was not detected in the
sediment sample CFP4SO-39. However, the laboratory analytical data submitted
as Appendix A indicates that the method detection limit exceeded the clean-up
goal expressed in the Amended ROD. Please clarify this discrepancy.
Figure 2 Site Plan
41. Please verify site conditions and/or revise Figure 2 such that the Note "Features
shown are from EPA & NCDENR assessments. Current and past owners have
not verified information shown." may be deleted.
Figure 5 Drum Disposal Area Lime Placement
42. Please correct the title of Figure 5 to state "Drum Disposal Area Lime
Placement".
• •
Ms. Samantha Urquhart-Foster
Interim Remedial Action and Final Construction Report
October 29, 2007
Page 7
•
Figure 8 Pipe Shop Area Excavation Limits & Sampling Locations
43. Please correct the title of Figure 8 to state "Pipe Shop Area Excavation Limits &
Sampling Locations".
44. Please revise Figure 8 such that the width of the excavation is given.
Figure 10 Lagoon 4 Excavation Limits & Sampling Locations
45. Please correct the title of Figure 10 to state "Lagoon 4 Excavation Limits &
Sampling Locations".
Appendix B Site Photographs
46. Please revise Photo 3 and Photo 4 of Appendix B to refer to the Investigation
Derived Waste Disposal Area.
Appendix D Copies of Waste Disposal Manifests
47. Appendix D does not contain all of the waste disposal manifests. Manifest waste
tracking numbers I through 13 were inadvertently omitted. The manifests
submitted as Appendix Dare for Pond I (Manifest numbers 56-7 I, 73-81) and
Pond 2 (Manifest numbers 14-55, 72) only. There are no manifests for the wastes
from Pond 3, Pond 4, Scrap Copper Area, Drum Disposal Area or the Pipe Shop
Disposal Area. Please correct these oversights.
Are, of Cone em
Pond 1
Pond 2
Pond 3
Pond4
Orum 0/sposal Arn
Scrap Copper Arn
Pipe Shop Arn
Constituent of 811110 {b &/or k) Dibenzo fa,h)
Concern/ROD ll!Vel Benzo(il)pyrene fluor1n!hene anthr1cene
610µg/k1 6,lOOµc/kf: 6101-11/q
Sample ID
, CFPlS0-8 ND ND ND
,. CFPlS0-36 Resi1mpllnI NA NA NA
✓ CFP2S0·9 ND ND NO
., CFP2S0-10 NO ND ND
., CfP2S0·37 Resamplln1 "' NA "' -CFP]S0-11 ND ND ND
-CfPiSO-B Duplicate ND ND ND
CFPIS0-14 MS/MSO NO/ND NO/NO ND/NO
-CFP3S0-38 ResampllnI NA NA NA
CFP4S0-12 NO ND NO
•. CfP4S0-39 RenmplinI NA NA NA
• CFODS0-16 ND ND ND
✓ CFOOS0-17 ND ND ND
./ CFDOS0-18 ND NO ND
-./ CFODS0-19 Oupllco1te ND ND ND
_! CFOOS0-20 MS/MSO NO/NO NO/NO NO/NO
,1 CFCAS0-22 ND ND ND
,/ CFCAS0-24 ND ND ND
,/ CFCAS0-2S MS/MSO NO/ND NO/ND NO/NO
J CFPPS0-23 ND ND ND
Table 3
Summauy of laboratory Anily1k::al Re5ulu
Reasor Chemic:al-Interim Remedi;al Action Report
5100 North ColleI1 Road, C:astle Hayne, North C.uolina
A~• Job Number S10120.006
(3/4) Methyl
phenol Antimony Copper
SOµa:/q 30 ml/k1 2,700 m1/k1
• . .
o, ND NO
PENDING ~ NA NA
DC · ND • 5.6 m1/ka:
DC ND 3.2 m"'k1
PENDING" 1 NA NA ="• ND 4.2 mc/1<1
v.,A ND ND n,_ ,.,~ •7/48mo/Jco• 120/130 m1/k1
" V "' NA
o, ND 6.9 me/kt:
PEN™"'G Ml!>.. NA NA
NA ND ND
NA ND ND
NA ND ND
NA ND ND
NA NO/ND NO/NO
NA ND ND
NA ND ND
NA 93/Umg/Jrg• 110/11om1/kt
NA ND 7.0 me/kl
NOTES 1) BOLO/ITALICJNDICATES ABOVE ROO STANDARD
2) • • INDICATES R[SUL TS DISCOUNTED DUE TO NO VALUES FOR SAME SAMPLE SET
3) ND-INDICATES VALUE NOT DETECTED ABOVE METHOD DETECTION LIMIT ANO LIMIT IS LESS THAN ROD STANDARD
4) NA-INDICATES CHEMICAL NOT ANALY2ED FQR IN SAMPLE
SJ Dt -INDICATES METHOD DffiCTION uM1T 1S GREATER THAN ROD STANDARD
Lnd Toluene
400 ml/kl 8,050 µr/k1
' .
7.3 m1/k1 ND
NA NA
· ND , 3,800µg
7,Bm•/ks ND
"' NA
7.4 m"/~ .. 2,300 1,1&/k1
5.7 m•/h 1,4001,1(/kl
120/130 m1/k1 2,300/2,300 1-11/k1
NA NA
8.5 m1/k1 62"'
NA NA
NO. NA
ND NA
ND NA
ND NA
ND/NO NA
3.1 mg/kl NA
ND NA
110/110 m&/1<1 NA
6.0 m1/k1 NA
6) PENDING -INDICAITS LAB RESULTS CURRENTLY BEING REVIEWED TO DETERMINE IF DETECTION LIMIT CAN BE REDUCED TO LESS THAN ROD STANDARD
• Methyle!hyl
ketone
137µa:fka:
ND
NO
DC .
DC
NO•
DC
DC
DL/DL
ND
NO
~L
NA
NA
NA
NA
NA
NA
NA
NA
NA •
•
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
Mr. JeffTitus, P.G.
Apex Companies, LLC
136 Fairview Road, Suite 125
Mooresville, NC 28117
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
August 29, 2008
SUBJECT: Approval of the Interim Remedial Action and Final Construction Report
Revision 3, August 2008
Reasor Chemical Co. Site
Castle Hayne, New Hanover County, North Carolina
Dear Mr. Titus:
Thank you for your efforts related to the remediation of the Reasor Chemical Co. Site.
EPA and North Carolina Department of Environment and Natural Resources (NCDENR)
personnel have reviewed the Interim Remedial Action and Final Construction Report, Revision
3, which was submitted by Apex Companies LLC on June 26, 2008 with minor changes made to
Section 2.0 on August 29, 2008, for the Reasor Chemical Co. Site. The document is consistent
with the EPA guidance document Close Out Procedures for National Priorities List Sites (EPA
540-R-98-016, OSWER Directive 9320.2-09A-P) and hereby is approved. Approval of this
document also classifies this remedy as Operational and Functional.
We look forward to continuing working with you regarding implementation of
Institutional Controls and groundwater and habitat restoration monitoring. If you have any
questions, feel free to contact Samantha Urquhart-Foster, Remedial Project Manager, at either
[phone] or via email at [e-mail].
cc: David Mattison
Hilda C. Dill
Jane C. Sullivan
Jeffrey J. Davidson, Esq.
Marguerite Mclamb, Esq.
Yvonne C. Bailey, Esq.
William A. White, Esq.
Sincerely, « iJ/rl JJ ~
R. Donald Rigger
Chief
Superfund Remedial and Site Evaluation Branch
Internet Address (URL) • http://www.epo.gov
Rocyclodmocyclabl• • Printod whh Vogotablo OU Basod Inks on Rocyeled Papor (Minimum 30o/. Postconsumur)
one minor revision needed to Reasor Interim RA report ...
Subject: one minor revision needed to Reasor Interim RA report ...
From: Urquhart-Foster.Sa~[e-mail]
Date: Tt.ie, 12 Aug 2008 13:03:02 -0400
iro: [e-mail] · · ---·
I f2C: [e-mail], hcd J [e-mail], [e-mail], [e-mail],
[e-mail], yvonne. [e-mail], billwhite@c.m:.:v_;_;a=l=aw.:.:..:..c:..:o:.:m::.:._ _____________ ___J
I of I
Hello all. I routed the Interim Remedial Action and Final Construction
Report, Revision 3, to my management for approval. They would like one
sentence removed from Section 2. Please delete the last sentence from
the second paragraph on page 2-1. It states 11 According to the Amended
ROD, Section 2.12.4.2, these risk-based clean-up levels are guidelines
and do not mean that clean-up to meet these goals is warranted.11
That sentence was taken out of context and interpretted differently than
intended in the Amended ROD. The statement in section 2.12.4.2 of the
Amended ROD
was a generic one about risk-based clean-up goals in general, not about
the ones chosen for this particular remedy. For example, if a risk
assessment calculated clean-goals under a residential scenario, yet the
property will never be used in that manner, then those particular
ris~-based clean-up levels would be a guideline, but would not
necessarily be warranted based on the potential use scenario.
Please delete that sentence and resubmit the revised Section 2. Upon
receipt, I'll mail the approval letter. If you'd like to send it in a
pdf file, I'll be happy to print and replace the page(s) for the final
document.
Thanks!
Samantha •
9/3/2008 8:30 AM
4WD-SRSEB
Ms. Kelly St ynes
CH2M Hill
103 Java Court
Cary, NC 27519
• • UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
July 11, 2005
Subject: Tree Cutting Activities
Reasor Chemical Company Site, Castle Hayne, NC
Dear Ms. Stynes,
I have reviewed your June 15, 2005 request on behalf of Ms. Dill and Ms. Sullivan
regarding tree cutting activities surrounding the Reasor Chemical Company Site. You indicated
in your letter that tree cutting operations are being considered for portions of your clients'
property that is outside of the dirt access roads that surround the Reasor Chemical Company Site.
As long as that is the case, no approval is necessary from the EPA. However, I urge you to
follow any applicable federal, state or local requirements related to such activities.
I appreciate you keeping me informed of planned activities near the Site. I can be
reached at [phone] if needed.
cc: Mr. David Mattison, NC DENR
Samantha Urquhart-Foster
Remedial Project Manager
Superfund Remedial & Site Evaluation Branch
Internet Address (UAL}• ht1p://w~w.epa.gov
Roc·tcled/Aecyclabla • rriritod with Vege1ab!~ Oil Base~ Inks on Recycled Paper (Minimum 30% Poslconsurmu)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER ·
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
'AUG 2 6 2004
Dexter Matthews, Director
Division of Waste Management
NC DENR
40 l Oberlin Road, Suite 150
Raleigh, NC 27605
Subject: Remedial Action Negotiations
Reasor Chemical Company Superfund Site
Castle Hayne, New Hanover County, North Carolina
Dear Mr. Matthews:
This letter follows up a June 2004 letter that the United States Environmental Protection
Agency (EPA) sent to provide notification of anticipated negotiations with the potentially
responsible parties (PRPs) to voluntarily conduct the Remedial Action (RA).
Enclosed is a copy of one of the Special Notice Letter sent to the PRPs, a list of
recipients, a draft Consent Decree, and a Statement of Work for the RA.
It's our understanding that your agency would like the opportunity to participate in
negotiations and we will keep you informed of any forthcoming negotiations.
Please contact me at ( 404) 562-9539 or Samantha Urquhart-Foster, the Remedial Project
Manager for the Site, at [phone] with any questions. Thank you for your cooperation and
support.
Enc.
s;;e=ly~
~wyer
Associate Regional Counsel
Internet Address (URL) , http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable on Based Inks on Recycled Paper (Minimum 30% Postconsumer)
• • UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4.
SPECIAL NOTICE LETTER FOR
REMEDIAL ACTION (RA)
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
URGENT LEGAL MA TTER--PROJ\1PT REPLY REQUESTED
CERTIFIED MAIL--RETURN RECEIPT REQUESTED
Yvonne C. Bailey
Assistant General Counsel
Martin Marietta Materials, Inc.
2710 WycliffRoad
Raleigh, N.C. 27607
SUBJ: Reasor Chemical Superfund Site (the Site)
Castle Hayne, New Hanover County, North Carolina
EPA Site ID No. NCD986187094
Dear Ms. Bailey:
. This letter follows a general notice letter that was issued to Lockheed Martin Corporation
in February 2003 in connection with the Reasor Chemical Superfund Site ("the Site") located in
Castle Hayne, North Carolina. In that letter, EPA notified Lockheed Martin Corporation of its
. potential responsibility under Section 107(a) of the Comprehensive Environmental Response,.·
Compensation, and Liability Act ("CERCLA" or "Superfund"), 42 U.S.C. § 9607(a), for the
cleanup of the Site, including all costs incurred by the EPA in responding to releases at the Site.
EPA is now contacting Martin Marietta Materials, Inc. ("Martin Marietta") in an attempt to
resolve its responsibility at the Site.
Background
Based on an extensive review of records related to the release and/or disposal of
hazardous substances at the Site, EPA identified Martin Marietta as one of approximately three
potentially responsible parties ("PRPs"). Under the federal Superfund law, Martin Marietta and
the other PRPs at the Site are responsible for the costs of cleaning up the Site. EPA has selected
a cleanup approach (formally known as a remedial action) for the Site, which is described in a
document called a Record of Decision ("ROD") issued by EPA on September 26, 2002, and the
Remedial Design ("RD"), which was finalized on January 30, 2004.
Special Notice and Negotiation Moratorium
EPA has determined that use of the special notice procedures set forth in Section 122(e)
of CERCLA, 42 U.S.C. § 9622(e), may facilitate a settlement between Martin Marietta, other
PRPs, and EPA for implementation of the response action. Under Section 122(e), this letter
lntamat.Addrass (URL)• http://www.apa.gov
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•
triggers a sixty (60)-day moratorium on certain EPA response activities at the Site. During this
60-day moratorium, EPA will not begin response actions at the Site. However, EPA reserves the
right to take action at the Site at any time should a significant threat to the human health or the
environment arise.
During this 60-day period, Martin Marietta and/or the other PRPs are invited to
participate in formal negotiations with EPA in an effort to reach a settlement to conduct or
finance response actions at the Site. The 60-day negotiation period ends on October 26, 2004.
The 60-day negotiation moratorium will be extended for an additional sixty (60) days if PRPs
provide EPA with a "good faith offer" to conduct or finance the response action and reimburse
F'.PAfor its costs incurred to date. IfEPA determines that the proposal is not a "good faith
offer," Martin Marietta will be notified in writing ofEPA's decision to end the moratorium. If
the moratorium is extended for an additional 60 days, negotiations will conclude on December
27, 2004. If settlement is reached between EPA and the PRPs within the 120-day negotiation
moratorium, the settlement will be embodied in a Consent Decree for Remedial Action. When
approved by EPA and the U.S. Department of Justice ("DOJ"), the Consent Decree will then be
lodged in federal court.
If a "good faith offer" is not received within sixty (60) days, or a timely settlement cannot
be reached, EPA may take appropriate action at the Site, which may include either of the
following options: (1) EPA may fund the remedial action and pursue a cost recovery claim under
107 of CERCLA against Martin Marietta and/or the other PRPs; or (2) EPA may issue a
Unilateral Administrative Order ("UAO") to Martin Marietta and/or the other PRPs under
Section 106(a) of CERCLA, 42 U.S.C. § 9606, requiring it or them to perform the work· . . .
described in the ROD. If the recipients of a UAO refuse to complywith the UAO, EPA may
pursue civil litigation against the recipients to require compliance.
Good Faith Offer
A proposed Consent Decree is enclosed to assist you in developing a "good faith offer."1
As indicated, the 60-day negotiation moratorium triggered by this letter is extended for 60 days if
the PRPs submit a "good faith offer" to EPA. A "good faith offer" t_o conduct or fina_nce the
remedial action is a written proposal that demonstrates your qualifications and willingness to
perform such work and includes the following elements:
• A statement of Martin Marietta's willingness and financial ability to implement the
relevant requirements of the ROD and the requirements of the draft Consent Decree and that
provides a sufficient basis for further negotiation;
1 This draft Consent Decree is not currently binding on EPA and is subject to revision and
approval by EPA and DOJ. It is based on the model RD/RA Consent Decree (May 2001), which
is available on the Internet at ·
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/mod-rdra-cd.pdf.
(J •
• A demonstration of Martin Marietta's technical capability to carry ·out the remedial
action, as specified in the draft Consent Decree and the draft Statement of Work! including
identification of the firm(s) that may actually conduct the work or .a description of the process
that will be undertaken to select the firm(s);
• A detailed statement of work or work plan identifying how Martin Marietta intends to
proceed with the relevant portions of the remedial action;
• A statement of Martin Marietta's willingness to reimburse EPA for costs EPA will
incur in overseeing its implementation of tl}e remedial action;
• A response to the proposed Consent Decree;2
• A list identifying each party on whose behalf the offer is being made, including name,
address, and telephone number of each party; and ·
• The name, address, and phone number of the party who will represent Martin Marietta .
in negotiations.
PRP Contacts
To assist PRPs in negotiating with EPA concerning this matter, EPA is attaching to this
letter a list of the names and addresses of other PRPs to whom it is sending this Notice.
EPA recommends that the PRPs meet to discuss allocation of responsibility. EPA
recognizes that the allocation of responsibility among PRPs inay be difficult. If PRPs are unable
to reach consensus among themselves, we encourage the use of the services of a neutral third
party to help allocate responsibility. Third parties are available to facilitate negotiations. At the
PRPs' request, EPA will provide a list of experienced third0party mediators, or help arrange for a
mediator.
Administrative Record
In accordance with Section 113 of CERCLA, 42 U.S.C. § 9613, EPA has established an
Administrative Record containing the documents that serve as the basis for EPA' s selection of
the appropriate response action for the Site. This Administrative Record is located at the New
Hanover County Public Library and is available to the public for inspection and comment. The
Administrative Record is also available for inspection and comment at the Superfund Records
Center, EPA Region 4, Atlanta, Georgia. You may wish to review the Administrative Record to
assist you in responding to this letter, but your review should not delay such response beyond the
60-day period provided by CERCLA.
2If Martin Marietta's offer contemplates modifications to the Consent Decree, please
make revisions or edits to the Consent Decree and submit a redline/strikeout version of the
Consent Decree in Word Perfect showing your proposed modifications to it.
•
PRP Response and EPA Contact Person
You are encouraged to contact EPA by September 17, 2004, to indicate Martin Marietta's
willingness to participate in future negotiations concerning this Site. If EPA does not receive a
tii:nely response, EPA will assume that Martin Marietta does not wish to negotiate a resolution of
its liabilities in connection with the Site, and that it has declined any involvement in performing
the response activities.
Martin Marietta's response to this Special Notice Letter, including written proposals to
perform the remedial action selected for the Site, should be sent to:
Bonnie Sawyer
U.S. Environmental Protection Agency
Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303
404-562-9539
The factual and legal discussions in this letter are intended solely to provide notice and
information, and such discussions are not to be construed as a final EPA position on any matter
set forth herein. Due to the seriousness of the environmental and legal problems posed by the
conditions at the Site, EPA urges that you give immediate attention and prompt response to this
letter.
In addition, EPA has notified the Federal Natural Resource Trustees3 of its intention to
perform or enter into negotiations for the performance of response actions at the Site.
If you have any questions regarding the technical aspects of this letter, please contact
Samantha Urquhart-Foster, Remedial Project Manager, at 404/562-8760 .. If you have any legal
questions pertaining to this matter, please direct them to Bonnie Sawyer at 404/562-9539.
3 The natural resource trustees are government agencies that have been given the
authority to assess the injury to natural resourc~s caused by the release of hazardous substances
and to seek the restoration, replacement, or acquisition of equivalent natural resources. The
Federal Natural Resource Trustees for this Site include the Department of Interior and the
National Oceanic and Atmospheric Agency (NOAA). In addition, States and Tribes are Natural
Resource Trustees.
• •
My staff and I look forward to working with you during the coming months.
d~~i{.w
Enclosures
cc: Dexter Matthews, NCDENR
Gregory L. Hogue, DOI .
Gary Petrae, NOAA
Tim Sullivan, Poyner & Spruill LLP
Chief
Superfund Remedial and Site Evaluation Branch
• •
CONTACT/RECIPIENT LIST
Yvonne C. Bailey
Assistant General Counsel
Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh, N.C. 27607
Timothy Sullivan, Esq.
Poyner & Spruill
3600 Glenwood Avenue
Raleigh, North Carolina 27612
Hilda Dill
c/o Cameron Management Company
1201 Glen Meade Road
Wilmington, North Carolina 28401
Jane-Sullivan.
c/o Cameron Management Company
1201 Glen Meade Road
Wilmington, North Carolina 28401
• •
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DMSION
UNITED STATES OF AMERICA
Plaintiff,
V.
Jane C. Sullivan; Hilda C. Dill;
Martin Marietta Materials, Inc.
Defendants.
CIVIL ACTION NO.
RA CONSENT DECREE
DRAFT
July 30, 2004
• •
TABLE OF CONTENTS
L BACKGROUND .............. : .......................................... 1
II. JURISDICTION ........................................................ 2
III. PARTIES BOUND ...................................................... 2
IV. DEFINITIONS ........................................................ 3
V. GENERAL PROVISIONS .................................................. 6
Vl. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS ..................... 7
VII. REMEDYREvIEw· ..................... -:,, .......... · .................. 10
VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS ................... 11
IX. ACCESS AND INSTITUTIONAL CONTROLS ...... · ............................ 12
X. REPORTING REQUIREMENTS ............................................ 15
XL EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS ........................ 17
XII. PROJECT COORDINATORS ............................................. 18
XIII. ASSURANCE OF ABILITY TO COMPLETE WORK ............................ 18
XIV. COMPLETION OF THE WORK ......................... : ................ 19
XV. EMERGENCY RESPONSE .............................................. 20
XVI. PAYMENTS FOR RESPONSE COSTS ..................................... 21
XVII. INDEMNIFICATION AND INSURANCE .................................... 22
XVIII. FORCE MAJEURE ................................................. 23
XIX. DISPUTE RESOLUTION .. : ............................................ 25
XX. STIPULATED PENALTIES .............................................. 27
XXL COVENANTS BY PLAINTIFF ........................................... 29
XXII. COVENANTS BY SETTLING DEFENDANTS ................................. 30
XXIII. EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION .................... 32
XXIV. ACCESS TO INFORMATION ........................................... 32
XXV. RETENTION OF RECORDS .................................. : ......... 33
XXVI. NOTICES AND SUBMISSIONS ......................................... 34
XXVII. EFFECTIVE DATE ................................................ 35
XXVIII. RETENTION OF JURISDICTION ...................................... 36
XXIX. APPENDICES ................................... · .................. 36
XXX. COMMUNITY RELATIONS ........................ · ................... 36
XXXl. MODIFICATION ................................................... 36
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .................... 37
XXXIII. SIGNATORIES/SERVICE ........................................... 37
XXXIV. FINAL JUDGMENT ......................... : ..................... 37
iii
• •
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"), 42 U.S.C. §§ 9606, 9607.
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 Reasor Chemical
Superfund Site in Castle Hayne, New Hanover County, North Carolina, together with accrued
interest; and (2) performance of studies and response work by the defendants at the Site
consistent with the National Contingency Plari, 40 C.F.R. Part 300 (as amended) ("NCP").
C. In accordance with the NCP and Section 121(f)(l)(F) of CERCLA, 42 U.S.C.
§ 9621(f)(l)(F), EPA notified the State of North Carolina (the "State") on June 18, 2004, of
negotiations with potentially responsible parties regarding the implementation of the 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)(l) of CERCLA, 42 U.S.C. § 9622(j)(l), EPA
notified the Federal natural resource trustees on June 18, 2004, 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 trustees to participate in the
negotiation of this Consent Decree,
E. The defendants that have entered into this Consent Decree ("Settling Defendants")
do not admit any liability to the Plaintiff arising out of the transactions or occurrences alleged in
the complaint, nor do they 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 C.F.R. Part 300, Appendix B, by publication in the
Federal Register on September 5, 2002, 67 Fed. Reg. 56757.
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 August 1996, a·Remedial Investigation and
Feasibility Study ("RI/PS") for the Site pursuant to 40 C.F.R. § 300.430.
H. EPA completed a Remedial Investigation ("RI") Report in December 1999, and
EPA completed a Feasibility Study ("PS") Report in 2002.
I. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice of
the completion of the PS and of the proposed plan for remedial action on July 19, 2002, 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, held on July 30, 2002, 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 September 26, 2002, on which the
State had a reasonable opportunity to review and comment, and 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 l l 7(b) of CERCLA.
K. EPA completed a Remedial Design on January 30, 2004.
L. Based on the information presently available to EPA, EPA believes that the Work
will be properly and promptly conducted by the Settling Defendants if conducted in accordance
with the requirements of this Consent Decree and its appendices.
M. · Solely for the purposes of Section l 13(j) of CERCLA, the Remedial Action
selected by the ROD and the Work to be performed by the Settling Defendants shall constitute a
resporise action taken or ordered by the President.
N. 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. §§ 9606, 9607, and 9613(b). This Court also has
personal jurisdiction over the Settling Defendants. Solely for the purposes of this Consent
Decree and the underlying cornplaints, Settling Defendants waive all objections and defenses that
they may have to jurisdiction of the Court or to venue in this District. Settling Defendants shall
not challenge the terms of this Consent Decree or t~is Court's jurisdiction to enter and enforce
this Consent Decree.
ill. PARTIESBOlJND
2. This Consent Decree applies to and is binding upon the United States and upon
Settling Defendants and their heirs, successors and assigns. Any change in ownership or
corporate status of a 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 responsibilities under this
Consent Decree. '
2
• •
3. Settling Defendants 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 Consent Decree. Settling Defendants or their contractors shall provide writtel) notice of the
Consent Decree to all subcontractors hired to perform any portion of the Work required by this
Consent Decree. Settling Defendants shall nonetheless be responsible for ensuring that their
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 shaU be deemed to be in a contractual relationship with the Settling
Defendants within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).
IV. DEFINITIONS
4. Unless otherwise expressly provided herein, terms 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 terms listed below are
used in this Consent Decree or in the appendices attached 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 seq.
"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 .. In computing any
period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday,
or Federal holiday, the period shall run until the close of business of the next working day.
"Effective Date" shall be the effective date of this Consent Decree a·s provided in
Paragraph 101.
"EPA" shall mean the United States Environmental Protection Agency and any successor
departments or agencies of the United States. ·
"Future Oversight Costs" shall mean that portion of Future Response Costs that EPA
incurs in monitoring and supervising Settling Defendants' performance of the Work to determine
whether such performance is consistent with the requirements of this Consent Decree, including
costs incurred in reviewing plans, reports and other documents submitted pursuant to this
Consent Decree, as well as costs incurred in overseeing implementation of the Work; however,
Oversight Costs do not include, inter alia: the costs incurred by the United States pursuant to
Sections VII (Remedy Review), IX (Access and Institutional Controls), XV (Emergency
Response), and 83 (Work Takeover), or the costs incurred by the United States in enforcing the
terms of this Consent Decree, including all costs incurred in connection with Dispute Resolution
pursuant to Section XIX (Dispute Resolution) and all litigation costs.
3
•
"Future Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States incurs in reviewing· or developing plans, 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, the cost of attorney time and any monies paid to secure access
and/or to secure or implement institutional controls including, but not limited to, the amount of
just compensation), XV, and Paragraph 83 of Section XXJ. Future Response Costs shall also
include all Interim Response Costs, and all Interest on those Past Response Costs ~ettling
Defendants have agreed to reimburse under this Consent Decree that has accrued pursuant to 42
U.S.C. § 9607(a) during the period from June 2, 2004, to the date of entry of this Consent
Decree ..
"Interim Response Costs" shall mean all costs, including direct and indirect costs,
(a) paid by the United States in connection with the Site between June 2, 2004, and the Effective
Date, or (b) incurred prior to the Effective Date but paid after that date.·
"Interest," shall mean interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on
October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest
shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change
on October 1 of each year.
"Interest Earned" shall mean interest earned on amounts in the Reasor Chemical
Company Superfund _Site _Disbursement Special Account, which shall be computed monthly at a
rate based on the annual return on investments of the Hazardous Substance Superfund. The
applicable rate of interest shall be the rate in effect at the time the interest accrues.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42
U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"NCDENR" shall mean the North Carolina Department of Environment and Natural
Resources and any successor departments or agencies of the State.
"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 Settling Defendants" shall mean the Settling Defendants Hilda Cameron and
Jane Sullivan.
"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 Defendants.
"Past Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States paid at or in connection with the Site through June 2, 2004,
4
• •
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 2.12.4.2 of the ROD and
Section of the SOW.
"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 Dedsion" or .'.'ROD" shall mean the EPA Record of Decision relating to the
Site signed on September 26, 2002, by the Regional Administrator, EPA Region 4, or his/her
delegate, and all attachments thereto. The ROD is attached as Appendix A.
"Remedial Action" shall, for purposes of this Consent Decree, mean those activities,
except for the groundwater c·ontingency reinedy of extraction and treatment using constructed
wetlands and Operation and Maintenance, to be undertaken by the Settling Defendants 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 11 of this Consent Decree and approved by EPA, and any amendments thereto.
"Remedial Design" shall mean the Remedial Design relating to the Site completed on
January 30, 2004. The Remedial Design is attached as Appendix B.
Dill.
"Section" shall mean a portion of this Consent Decree identified by a Roman numeral.
"Settling Defendants" shall mean Martin Marietta Materials, Inc., Jane Sullivan and Hilda
"Site" shall mean the Reasor Chemical Company Superfund Site, encompassing
approximately 25 acres, located at 5100 North College Road, 0.5 miles southeast of the
intersection of NC Route 132 and US Route 117 (NC Route 133), in Castle Hayne, New Hanover
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 Action, and Operation and Maintenance at the Site, as set forth in Appendix F 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
Defendants 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. § 9601(33); and (3) any "solid waste" under Section 1004(27) ofRCRA, 42 U.S.C.
§ 6903(27).
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"Work" shall mean all activities Settling Defendants are required to perform under ·this
Consent Decree, except-those required by Section XXV (Retention of Records).
V. GENERAL PROVISIONS
5. Objectives of the Parties. 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
implementation of response actions at the Site by the Settling Defendants, to reimburse response
costs of the Plaintiff, and to resolve the claims of Plaintiff against Settling Defendants as
. provided in this Consent Decree.
6. Commitments by Settling Defendai1ts.
a. Settling Defendants 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 Defendants and approved
by EPA pursuant to this Consent Decree, except that defendants need not perform work excluded
from the definition of Remedial Action. Settling Defendants shall also reimburse the United
States for Past Response Costs and Future Response Costs as provided in this Consent Decree.
b. The obligations of Settling Defendants 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 Defendants to implement
the requirements of this Consent Decree, the remaining Settling Defendants shall complete all ·
such requirements.
7. Compliance With Applicable Law. All activities undertaken by Settling
Defendants pursuant to this Consent Decree shall be performed in accordance with the
requirements of all applicable federal and state laws and regulations. Settling Defendants 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 federal or state permit or approval, Settling Defendants shall submit timely and
complete applications and take all other actions necessary to obtain all such permits or approvals.
b. The Settling Defendants 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 iri 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 to Successors-in-Title.
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a. With respect to any property owned or controlled by the Owner Settling
Defendant(s) that is located within the Site, within 15 days after the entry of this Consent Decree,
the Owner Settling Defendant(s) shall submit to EPA for review and approval a notice to be filed
with the Recorder's Office, Registry of Deeds or other appropriate office, New Hanover County,
State of North Carolina, which shall provide notice to all successors-in-title that the property is
part of the Site, that EPA selected a remedy for the Site, and that potentially responsible parties
have entered into a Consent Decree requiring implementation of the remedy. Such notice(s) shall
identify the United States District Court in which the Consent Decree was filed, the name and
civil action number of this case, and the date the Consent Decree was entered by the Court. The
Owner Settling Defendant(s) shall record the notice(s).within 10 days ofEPA's approval of the
notice(s).cThe Owner Settling Defendant(s) shall provide EPA with a certified copy of the
recorded notice(s) within 10 days of recording such notice(s). .
b. At least 30 days prior to the conveyance of any interest in property located
within the Site including, but not limited to, fee interests, leasehold interests, and mortgage
interests, the Owner Settling Defendant(s) conveying the interest shall give the grantee written
notice of (i) this Consent Decree, (ii) any instrument by which an interest in real property has
been conveyed that confers a right of access to the Site (hereinafter referred to as "access
easements") pursuant to Section IX (Access and Institutional Controls), and (iii) any instrument
by which an interest in real property has been conveyed that confers a right to enforce restrictions
on the use of such property (hereinafter referred to as "restrictive easements") pursuant to Section
IX (Access and Institutional Controls). At least 30 days prior.to such conveyance, the Owner
Settling Defendant(s) conveying the interest shall also give written notice to EPA and the State of
the proposed conveyance, including the name and address of the grantee, and the date on which
notice of the Consent Decree, access easements, and/or restrictive easements was given to the
grantee.
c. In the event of any such conveyance, the Owner Settling Defendant's
obligations under this Consent Decree, including, but not limited to, its obligation to provide or
secure access and institutional controls, as well as to abide by such institutional controls,
pursuant to Section IX (Access and Institutional Controls) of this Consent Decree, shall continue
to be met by the Owner Settling Defendant(s). In no event shall the conveyance release or
otherwise affect the liability of the Owner Settling Defendant(s) to comply with all provisions of
this Consent Decree, absent the prior written consent of EPA. If the United States approves, the
grantee may perform some or all of the Work under this Consent Decree.
VI. PERFORMANCE OF THEW ORK BY SETTLING DEFENDANTS
10. Selection of Supervising Contractor.
a. All aspects of the Work to be performed by Settling Defendants pursuant . .
to Sections VI (Performance of the Work by Settling Defendants), VII (Remedy Review), VIII
(Quality Assurance, Sampling 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 Defendants shall notify EPA in writing of the name, title, and
qualifications of any contractor proposed to be the Supervising Contractor. With respect to any
contractor proposed to be Supervising Contractor, Settling Defendants shall demonstrate that the
7
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proposed contractor has a quality system that complies with ANSI/ASQC E4-1994,
"Specifications and Guidelines for Quality Systems for Environmental Data Collection and
Environmental Technology Programs," (American National Standard, January 5, 1995), by
submitting a copy of the proposed contractor's Quality Management Plan (QMP). The QMP
should be prepared in accordance with "EPA Requirements for Quality Management Plans
(QA/R-2)" (EPA/240/B-01/002, March 2001) or equivalent documentation as determined by.
EPA. EPA will issue a notice of disapproval or an authorization to proceed. If at any time
thereafter, Settling Defendants propose to change a Supervising Contractor, Settling Defendants
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 Defendants in writing. Settling Defendants shall submit to EPA a list of contractors,
including the qualifications of each contractor, that would be acceptable 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 Defendants 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 Defendants from
meeting one or more deadlines in a plan approved by the EPA pursuarit to this Consent Decree,
Settling Defendants may seek relief under the provisions of Section XVIIl (Force Majeure)
hereof.
11. · Remedial Action.
a. Within 30 days after EPA's issuance of an authorization to proceed
pursuant to Paragraph 10, Settling Defendants shall submit to EPA 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, except the groundwater contingency remedy of extraction and treatment using
constructed wetlands, and achievementof the related 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 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 they submit the Remedial Action Work Plan, Settling
Defendants shall submit to EPA a Health and Safety Plan for field activities required by the
Remedial Action Work Plan which conforms to the ~pplicable Occupational Safety and Health
Administration and EPA requirements including, but not limited to, 29 C.F.R. § 1910.120.
b. The Remedial Action Work Plan shall include the following: (1) schedule
for completion of the Remedial Action; (2) method for selection of the contractor; (3) schedule
for developing and submitting other required Remedial Action plans; (4) groundwater
monitoring plan; (5) methods for satisfying permitting requirements; (6) methodology for
implementation of the Operation and Maintenance Plan; (7) tentative formulation of the
,8
•
Remedial Action team; (8) construction quality control plan (by constructor); and (9) procedures
and plans for the decontamination of equipment and the disposal of contaminated materials. The
Remedial Action Work Plan also shall include the methodology for implementation of the
Construction Quality Assurance Plan and a schedule for implementation of all Remedial Action
tasks identified in the final design submittal and shall identify the initial formulation of the
Settling Defendants' Remedial Action Project Team (including, but not limited to, the
Supervising Contractor).
c. Upon approval of the Remedial Action Work Plan by EPA, Settling
Defendants shall implement the activities required under the Remedial Action Work Plan. The
.. Settling Defendants shall submit to EPA all plans, suq!Jllttals, 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 Defendants shall not commence physical Remedial
Action activities at the _Site prior to approval of the Remedial Action Work Piaf!.
12. The Settling Defendants 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 Consent Decree.
13. Modification of the SOW or Related Work Plans.
a. If EPA determines that modification to the' work specified in the SOW
and/or in work plans developed pursuant to the SOW is necessary to achieve· and maintain the
Performance Standards or to 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 and/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 and shall not
include the groundwater contingency remedy of extraction and treatment using constructed ,
wetlands. · '
b. For purposes of this Paragraph and Paragraph 49 only, the "scope of the
remedy selected in the ROD" is to accomplish the following at the Site:
(1) Pumping the contaminated surface water from Ponds 1, 2, 3 and 4 into
tanker trucks for off-site treatment and disposal;
(2) Excavation and off-site disposal, at a permitted RCRA facility, of
contaminated soil and sediment from Ponds 1-4, the scrap copper area, the pipe shop area
and the drum disposal area;
(3) Backfill a:nd vegetate the excavated areas with native species;
(4) Place recordations on property deeds indicating that the groundwater
is contaminated with inorganic compounds; and
(5) Perform annual monitoring of groundwater to determine if
contaminants of concern continue to be elevated.
If Settling Defendants object to any modification determined by EPA to be necessary pursuant to
this Paragraph, they may seek dispute resolution pursuant to Section XIX (Dispute Resolution),
9
•
Paragraph 66 (record review). The SOW and/or related work plans shall be modified in
accordance with final resolution of the dispute.
c. Settling Defendants 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.
d. 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.
14. Settling Defendants acknowledge and agree 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.
15. a. Settling Defendants 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.
(I) The Settling Defendants shall include in the written notification
the following information, where available: (I) the name and location of the facility to which the
Waste Material is 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 Defendants 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.
(2) The identity of the receiving facility and state will be determined
by the Settling Defendants following the award of the contract for Remedial Action construction.
· The Settling Defendants shall provide the information required by Paragraph 15.a as soon as
practicable after the award of the contract and before the Waste Material is actually shipped.
b. Before shipping any hazardous substances, pollutants, or contaminants
from the Site to an off-site location, Settling Defendants shall obtain EPA's certification that the
proposed receiving facility is operating in compliance with the requirements of CERCLA Section
12l(d)(3) and 40 C.F.R. 300.440. Settling Defendants shall only send hazardous substances,
pollutants, or contaminants from the Site to an off-site facility that complies with the
requirements of the statutory provision and regulations cited in the preceding sentence.
VII. REMEDY REVIEW
16. Periodic Review. Settling Defendants shall conduct any studies and
investigations asrequested 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.
. 17. 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
IO
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further response actions for the Site, consistent with the definition of Remedial Action in this
Consent Decree, in accordance with the requirements of CERCLA and the NCP.
18. Opportunity To Comment. Settling Defendants and, if required by Sections
l 13(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 12l(c) of CERCLA and to submit written comments for the record during the comment
period.
19. Settling Defendants' Obligation To Perform Further Response Actions; If EPA
selects further response actions for the Site as provided in Paragraph 17, the Settling Defendants
__ .-shall undertake such further response actions. Settling Defendants may invoke the procedures
set forth in Section XIX (Dispute Resolution) to dispute (1) EPA's detennination that the
Remedial Action is not protective of human health and the environment, or (2) EPA's selection
of the further response actions. Disputes pertaining to the whether the Remedial Action is
protective or to EPA's selection of further response actions shall be resolved pursuant to
Paragraph 66 (record review).
20. Submissions of Plans. If Settling Defendants are required to perform the further
response actions pursuant to Paragraph 19, they 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 Defendants) and shall implement the plan approved by EPA in accordance with the
provisions of this Decree. ·
VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS
21. Settling Defendants shall use quality assurance, quality control, and chain of
custody procedures for all treatability, design, compliance and monitoring samples in accordance
with "EPA Requirements for Quality Assurance Project Plans (QA/RS)" (EPN240/B-0l/003,
March 2001) "Guidance for Quality Assurance Project Plans (QNG-5)" (EPN600/R-98/018,
February 1998), and subsequent amendments to such guidelines upon notification by EPA to
Settling Defendants 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 Defendants shall submit to EPA for approval a QualityAssurance
Project Plan ("QAPP") that is consistent with the.SOW, and the NCP .. 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 Defendants shall ensure that EPA personnel and its
authorized representatives are allowed access at reasonable times to all laboratories utilized by
Settling Defendants in implementing this Consent Decree. In addition, Settling Defendants shall
ensure that such laboratories shall analyze all samples submitted by EPA pursuant to the QAPP
for quality assurance monitoring. Settling Defendants shall ensure that the laboratories they
utilize 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" (ILM 05.3), March
2004, and the "Contract Lab Program Statement of Work for Organics Analysis" (OLM04.2,
May 1999, the "Contract Lab Program Statement of Work for Analysis of Low Concentration
Organic," (OLC03/2), December 2000, and any amendments made thereto during the course of
11
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the implementation of this Decree; however, upon approval by EPA, the Settling Defendants may .
use other analytical methods which are as stringent as or more stringent than the CLP-approved
methods. Settling Defendants shall ensure that all laboratories they use for analysis of samples
taken pursuant to this Consent Decree participate in an EPA or EPA-equivalent QA/QC program.
Settling Defendants shall only use laboratories that have a documented Quality System which
complies with ANSI/ ASQC E4-1994, "Specifications and Guidelines for Quality Systems for
Environmental Data Collection and Environmental Technology Programs," (American National ' Standard, January 5, 1995), and "EPA Requirements for Quality Management Plans (QA/R-2),"
(EPA/240/B-01/002, March 2001) or equivalent documentation as determined by EPA. EPA
may consider laboratories accredited under the National Environmental Laboratory Accreditation.
Program (NELAP) as meeting the Quality System requirements. Settling Defendants shall
ensure that all field methodologies utilized in collecting samples for subsequent analysis pursuant
to this Decree wili' be conducted in accordance with the procedures set forth in the QAPP
. approved by EPA.
22. Upon request, the Settling Defendants shall allow split or duplicate samples to be
taken by EPA or its authorized representatives. Settling Defendants shall notify EPA not less
than 28 days in advance of any sample collection activity unless shorter notice is agreed to by
EPA. In addition, EPA shall have the right to take any additional samples that EPA deems
necessary. Upon request, EPA shall allow the Settling Defendants to take split or duplicate
samples of any samples they take as part of the Plaintiffs oversight of the Settling Defendants'
implementation of the Work. .
23. Settling Defendants shall submit to EPA 2 copies of the results of all sampling
and/or tests or other data obtained or generated by or on behalf of Settling Defendants with
respect to the Site and/or the implementation of this Consent Decree unless EPA agrees
otherwise:
24. 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 related thereto, under CERCLA, RCRA and any other applicable statutes or
regulations.
IX. ACCESS AND INSTITUTIONAL CONTROLS
25. If the Site, or any other property where access and/or land/water use restrictions
are needed to implement this Consent Decree, is owned or controlled by any of the Settling
Defendants, such Settling Defendants shall:
a. commencing on the date of lodging of this Consent Decree, provide the
United States, and its representatives, including EPA and its contractors, with access at all
reasonable times to the Site, or such other property, for the purpose of conducting any activity
related to this Consent Decree including, but not limited to, the following activities:
(1) Monitoring the Work;
(2) Verifying any data or information submitted to the United States;
(3) Conducting investigations relating to contamination at or near the
Site;
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(4) Obtaining samples;
(5) Assessing the need for, planning, or implementing additional
response actions at or near the Site;
(6) Assessing implementation of quality a~surance ~nd quality control
practices as defined in the approved Quality Assurance Project Plans;
(7) Implementing the Work pursuant to the conditions set forth in
Paragraph 83 of this Consent Decree;
·(8) Inspecting and copying records, operating logs, contracts, or other
documents maintained or generated by Settling Defendants or their agents, consistent with
Section XXIV (Access to Information);
(9) Assessing Settling Defendants' compliance with this Consent
Decree; and
(10) Determining whether the Site or other property is being used in a
manner that is prohibited or restricted, or that may need to be prohibited or restricted, by or
pursuant to this Consent Decree;
b. commencing on the date of lodging of this Consent Decree, refrain from
using the Site, or such other property, in any manner that would interfere with or adversely affect
the implementation, integrity, or protectiveness of the remedial measures to be performed
pursuant to this Consent Decree; and
c. if EPA so requests, execute and record in the Recorder's Office, Registry
of Deeds or other appropriate land records office of New Hanover County, State of North
Carolina , an easement and other restrictions, running with the land, that (i) grants a right of
access for the purpose of conducting any activity related to this Consent Decree including, but
not limited to, those activities listed in Paragraph 25.a of this Consent Decree, and (ii) grants the
right to enforce the land/water use restrictions listed in Paragraph 25.b of this Consent Decree, or
other restrictions that EPA determines are necessary to implement, ensure non-interference with,
or ensure the protectiveness of the remedial measures to be performed pursuant to this Consent
Decree, which may include restrictions on groundwater usage. Such Settling Defendants shall
grant the access rights and the rights to enforce the land/water use restrictions to one or more of
the following persons: (i) the United States, on.behalf of EPA, and its representatives, (ii) the
other Settling Defendants and their representatives, and/or (iii) other appropriate grantees. Such
Settling Defendants shall, within 45 days ofEPA's request, submit to EPA for review and
approval with respect to such property:
(1) A draft easement/restriction that is enforceable under the laws of
the State of North Carolina, and
(2) a current title insurance commitment or some other evidence of
title acceptable to EPA, which shows title to the land described in the easement to be free
and clear of all prior liens and encumbrances (except when those liens or encumbrances
are approved by EPA or when, despite best efforts, Settling Defendants are unable to
obtain release or subordination of such prior liens or encumbrances).
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. Within 15 days of EPA's approval and acceptance of the easement and the title evidence, such
Settling Defendants shall update the title search and, if it is determined that nothing has occurred .
since the effective date of the commitment to affect the title adversely, record the easement with
the Recorder's Office, Registry of Deeds or other appropriate office of New Hanover County.
Within 30 days of recording the easement, such Settling Defendants shall provide EPA with a
final title insurance policy, or other final evidence of title acceptable to EPA, and a certified copy
of the original recorded easement showing the clerk's recording stamps. If the easement is to be
conveyed to the United States, the easement and title evidence (including finaJ'title evidence)·
shall be prepared in accordance with the U.S. Department of Justice Title Standards 2001, and
approval of th~ sufficiency of title must be obtained as required by 40 U.S.C. § 255.
26. .,::If the Site, or 'any other property where acc~ss and/or la~d/water use restrictions
are needed to implement this Consent Decree, is owned or controlled by persons other than any
of the Settling Defendants, Settling Defendants shall use best efforts to secure from such persons:
a. an agreement to provide access thereto for Settling Defendants, as well as
for the United States on behalf of EPA, as well as its representatives (including contractors), for
the purpose of conducting any activity related to this Consent Decree including, but not limited
to, those activities listed in Paragraph 25.a of this Consent Decree;
b. an agreement, enforceable by the Settling Defendants and the United
States, to refrain from using the Site, or such other property, in any manner that would interfere
with or adversely affect the implementation, integrity, or protectiveness of the remedial measures
to be performed pursuant to this Consent Decree. Such restrictions include, but are not limited to
the restrictions in Paragraph 25, if applicable; and
c. if EPA so requests, the execution and recordation in the Recorder's Office,
Registry of Deeds or other appropriate land records office of New Hanover County, State of
North Carolina, of an easement, running with the land, that (i) grants a right of access for the
purpose of conducting any activity related to this Consent Decree including, but not limited to,
those activities listed in Paragraph 25.a of this Consent Decree, and (ii) grants the right to enforce
the land/water use restrictions listed in Paragraph 25.b of this Consent Decree, or other
restrictions that EPA determines are necessary to implement, ensure non-interference with, or
ensure the protectiveness of the remedial measures to be performed pursuant to this Consent
. Decree. The access rights and/or rights to enforce land/water use restrictions shall be granted to
one or more of the following persons, as determined by EPA: (i) the United States, on behalf of
EPA, and its representatives, (ii) the Settling D.efendants and their representatives, and/or (iii)
other appropriate grantees. Within 45 days of entry ofEPA's request, Settling Defendants shall
submit to EPA for review and approval with respect to such property:
(1) A draft easement/ restriction that is enforceable under the laws of
the State of North Carolina, and
(2) a current title insurance commitment, or some other evidence of
title acceptable to EPA, which shows title to the land described in the easement to be free
and clear of all prior liens and encumbrances (except when those liens or encumbrances
are approved by EPA or when, despite best efforts, Settling Defendants are unable to
obtain release or subordination of such prior liens or encumbrances)
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Within 15 days of EPA's approval and acceptance of the easement and the title evidence, Settling
Defendants shall update the title search and, if it is determined that nothing has occurred since
the effective date of the commitment to affect the title adversely, the easement shall be recorded
with the Recorder's Office, Registry of Deeds or other appropriate office of New Hanover
County. Within 30 days of the recording of the easement, Settling Defendants shall provide EPA
with a final title insurance policy, or other final evidence of title acceptable to EPA, and a
certified copy of the original recorded easement showing the clerk's recording stamps. If
easement is to be conveyed to the United States, the easement and title evidence (including final
title evidence) shall be prepared in accordance with the U.S. Department of Justice Title
Standards 2001, and approval of the sufficiency of title must be obtained as required by 40 ..
U.S.C. § 255. _.,. ,
27. If (a) any access or land/water use restriction agreements required by Paragraphs
26.a or 26.b of this Consent Decree are not obtained within 45 days of the date of entry of this
Consent Decree, (b) any access easements or restrictive easements required by Paragraph 26.c of
this Consent Decree are not submitted to EPA in draft form within 45 days of the date specified
above, or (c) Settling Defendants are unable to obtain an agreement pursuant to Paragraph
26.c.(l) or Paragraph 27.c.(l) from the holder of a prior lien or encumbrance to release or
subordinate such lien or encumbrance to the easement being created pursuant to this consent
decree within 45 days of the date of entry of this consent decree, Settling Defendants shall
promptly notify the United States in writing, and shall include in that notification a summary of
the steps that Settling Defendants have taken to attempt to comply with Paragraph 26 or 26 of
this Consent Decree. The United States may, as_it deems appropriate, assist Settling Defendants
in obtaining access or land/water use restrictions, either in the form of contractual agreements or
· in the form of easements running with the land, or in obtaining the release or subordination of a
prior lien or encumbrance. Settling Defendants s_hall reimburse the United States in accordance
with the procedures in Section XVI (Reimbursement of Response Costs), for all costs incurred,
direct or indirect, by the United States in obtaining such access, land/water use restrictions,
and/or the release/subordination of prior liens or encumbrances including, but not limited to, the
cost of attorney time and the amount of monetary consideration paid or just compensation.
28. If EPA determines that land/water use restrictions in the form of state or local
laws, regulations, ordinances or other governmental controls are needed to implement the remedy
selected in the ROD, ensure the integrity and protectiveness thereof, or ensure non-interference
therewith, Settling Defendants shall cooperate with EPA's and the State's efforts to secure such
governmental controls.
29. Notwithstanding any provision of this Consent Decree, the United States retains
· all of its access authorities and rights, as well as ·all of its right to require land/water use
restrictions, including enforcement authorities related thereto, under CERCLA, RCRA and any
other applicable statute or regulations.
X. REPORTING REQUIREMENTS
-30. In addition to any other requirement of this Consent Decree, Settling Defendants
shall submit to EPA and the State written monthly progress reports that: (a) describe the actions
which have been taken toward achieving compliance with this Consent Decree during the
previous month; (b) include a summary of all results of sampling and tests and all other data
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received or generated by Settling Defendants or their 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 delays; (f) include any inodifications to the work plans or other
schedules that Settling Defendants have 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 Defendants shall
submit these progress reports to EPA by the tenth day of every month following the lodging of
this Consent Decree until.EPA notifies the Settling Defendants pursuant to Paragraph 49.b of
Section XIV (Completion of the Work). If requested by EPA, Settling Defendants shall also
provide briefings for EPA to discuss the progress of the Work.
31. The Settling Defendants 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
Defendants are required to report pursuant to Section 103 of CERCLA or Section 304 of the
Emergency Planning and Community Right-to-know Act (EPCRA), Settling Defendants 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 to the reporting
required by CERCLA Section 103 or EPCRA Section 304.
33. Within 20 days of the onset of such an event, Settling Defendants shall furnish to
Plaintiff a written report, signed by the Settling Defendants' 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 Defendants shall submit a report setting forth all
actions taken in _response thereto: ·
34. · Settling Defendants shall submit six copies of all plans, reports, and data required
by the SOW, the Remedial Action Work Plan, or any other approved plans to EPA in accordance
with the schedules set forth in such plans. Upon request by EPA Settling Defendants shall
submit in electronic form all portions of any report or other deliverable Settling Defendants are
required to submit pursuant to the provisions of this-Consent Decree. ·
35. All reports and other documents submitted by Settling Defendants to EPA (other
than the monthly progress reports referred to above) that purport to document Settling
Defendants' compliance with the terms of this Consent Decree shall be signed by an authorized
representative of the Settling Defendants.
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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 shall: (a) approve, in whole or in part, the
submission; (b) approve the submission upon specified conditions; (c) modify the submission to
cure the deficiencies; (d) disapprove, in whole or in part, the submission, directing that the
Settling Defendants modify the submission; or (e) any combination of the above. However, EPA
shall not modify a submission without first providing Settling Defendants at least one notice of
deficiency and an opportunity to cure within 10 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 ·defi~iencies 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 36(a), (b), or (c), Settling Defendants shall proceed to take any action
required by the plan, report, or other item, as approved or modified by EPA subject only to their
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 36(c) and the submission has a
material defect, EPA retains its right to seek stipulated penalties, as provided in Section XX
(Stipulated Penalties).
38. Resubmission of Plans.
a. Upon receipt of a notice of disapproval pursuant to Paragraph 36(d),
Settling Defendants shall, within 15 days or· such longer time as specified by EPA in such notice,
correct the 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 15-day
period or otherwise specified period but shall not be payable unless the resubmission is
disapproved or modified due to a material _defect as prov.ided in Paragraphs 39 and 40.
b. Notwithstanding the receipt of a notice of disapproval pursuant to
Paragraph 36(d), Settling Defendants shall proceed, at the direction of EPA, to take any action
required by any non-deficient portion of the submission. Implementation of any non-deficient
portion of a submission shall not relieve Settling Defendants 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 Defendants 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 Defendants shall implement any such plan, report, or item as
modified or developed by EPA, subject only to their right to invoke the procedures set forth in
Section XIX (Dispute Resolution).
40. If upon resubmission, a plan, report, or item is disapproved cir modified by EPA
due to a material defect, Settling Defendants shall be deemed to have failed to submit such plan,
report, or item timely and adequately _unless the Settling Defendants invoke 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
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(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, rep.ort, 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. -·
XIl. PROJECTCOORDINATORS
42. Within 20 days of lodging this Consent Decree, Settling Defendants 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 Defendants' 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 Defendants' Project
Coordinator shall not be an attorney for any of the Settling Defendants 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, including, 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, 4.0 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 when s/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 Defendants' Project Coordinator will
meet, at a minimum, on a monthly basis.
XIII. ASSURANCE OF ABILITY TO COMPLETE WORK
45. Within 30 days of entry ofthis Consent Decree, Settling Defendants shall
establish and maintain financial security in the amount of $1,000,000 ·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;
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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 Defendants; or
e. A demonstration that one or more of the Settling Defendants satisfy the
requirements of 40 C.F.R. Part 264.143(f).
46. lf the Settling Defendants 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·
Defendants shall demonstrate that the guarantor satisfies the requirements of 40 C.F.R. Part ·
264.143(f). lf Settling Defendants seek to demonstrate their ability to complete the Work by
means of the financial test or the corporate guarantee pursuanno Paragraph 45.d or 45.e, they
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. In the event that EPA determines at any time
that the financial assurances provided pursuant to this Section are inadequate, Settling
Defendants shall, within 30 days of 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 Defendants' inability to demonstrate financial ability to complete the
Work shall not excuse performance of any activities required under this Consent Decree.
47. If Settling Defendants 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 Defendants 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 Defendants 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 Defendants may reduce the amount of the security in
accordance with the final administrative or judicial decision resolving the dispute.
48. Settling Defendants 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 Defendants
may change the form of the financial assurance only in accordance with the final administrative
or judicial decision resolving the dispute.
XN. COMPLETION OF THE WORK
49. Completion of the Work.
a. Within 90 days after Settling Defendants conclu_de that all phases of the
Work (including O & M), have been fully performed, Settling Defendants shall schedule and
conduct an inspection to be attended by Settling Defendants and EPA. If, after the inspection, ·
the Settling Defendants still believe that the Work has been fully performed, Settling Defendants
shall submit a written report by a registered professional engineer stating that the Work has been
completed 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 Defendants' Project Coordinator:
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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 review of the written report, EPA determines that any portion of the Wark has not been
completed in accordance with this Consent Decree, EPA will notify Settling Defendants in
writing of the activities that must be undertaken by Settling Defendants pursuant to this Consent
Decree to complete the Work, provided, however, that EPA may only require Settling
Defendants to perform such activities pursuant to.this Paragraph to the extent that such activities
ari consistent with the "scope of ihe remedy selected in the ROD," as that term is defined in
Paragraph 13.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 Defendants to submit a
schedule to EPA for approval pursuant to Section XI (EPA Approval of Plans and Other
Submissions). Settling Defendants shall perform all activities described in the notice in
accordance with the specifications and schedules established therein, subject to their right to
invoke the dispute resolution procedures set forth in Section XIX (Dispute Resolution).
b. IfEPA concludes that the Work has been performed in accordance with
this Consent Decree, EPA will so notify the Settling Defendants in writing.
XV. EMERGENCY RESPONSE
50. In the event of any action or occurrence during the performance of the Wo~k
which causes or threatens a release of Waste Material from the Site that constitutes an
emergency situatiqn or may present an immediate threat to public health or welfare or the
environment, Settling Defendants 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's Project Coordinator. If the Project Coordinator is unavailable, the Settling
Defendants shall notify the National Response Center at [phone]. Settling Defendants
shall take such actions in consultation with EPA's Project Coordinator or other available
authorized EPA officer and in accordance with all applicable 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 Defendants fail to take appropriate response action as
required by this Section, and EPA takes such action.instead, Settling Defendants shall reimburse
EPA all .costs of.the response action not inconsistent with the NCP pursuant to Section XVI
(Payments for Response Costs).
51. 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, suoject to
Section XXI (Covenants Not to Sue by Plaintiff).
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XVI. PAYMENTS FOR RESPONSE COSTS
52. Payments for Past Response Costs.
a. Within 30 days of the Effective Date, Settling Defendants shall pay to
EPA $1,094,568.62 in payment for Past Response Costs. Payment shall be made by FedWire
Electronic Funds Transfer ("EFT") to the U.S. Department of Justice account in accordance with
current EFT procedures, referencing USAO File Number __ , EPA Site/Spill ID Number A424,
and DOJ Case Number_. Payment shall be made in accordance with instructions provided to
the Settling Defendants by the Financial Litigation Unit of the United States Attorney's Office
for the Eastern 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.
b. At the time of payment, Set_tling Defendants shall send notice that payment
has been made to the United States, to EPA and to the Regional Financial Management Officer,
in accordance with Section XXVI (Notices and Submissions).
c. The total amount to be paid by Settling Defendants pursuant to Paragraph
52.a shall be deposited in the EPA Hazardous Substance Superfund.
53. Payments for Future Response Costs.
a. Settling Defendants shall pay to EPA all Future Response Costs not
inconsistent with the National Contingency Plan. On a periodic basis the United States will send
Set~ling Defendants a bill requiring payment that includes a SCORPIOS report. Settling
Defendants shall make all payments within 30 days of Settling Defendants' receipt of each bill
requiring payment, except as otherwise provided in Paragraph 54. Settling Defendants shall
make all payments required by this Paragraph by a certified or cashier's check or checks made
payable to "EPA Hazardous Substance Superfund," referencing the name and address ofthe party
making the payment, EPA Site/Spill ID Number A424, and DOJ Case Number __ . Settling
Defendants shall send the check(s) to: Superfund Cqllection Officer, Superfund Accounting, U.S.
EPA, Region 4, P.O. Box 100142, Atlanta Georgia 30384.
. b. At the time of payment, Settling Defendants shall send notice that payment
has been made to the United States, in accordance with Section XXVI (Notices and Submissions)
and to Ms. Paula V. Batchelor, U.S. EPA, Region 4, Superfund Enforcement and Information
Management Branch, 61 Forsyth St., S.W._, Atlanta, Georgia 30303.
c. Payments of Future Response Costs should be made to the EPA
Hazardous Substance Superfund in the same manner as payments of Past Response Costs.
54. Settling Defendants may contest payment of any Future Response Costs under
· Paragraph 53 if they determin_e that the United States has made an accounting error or if they
allege 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 the bill and must be sent to the
United States pursuant to Section XXVI (Notices and 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 Defendants shall within the 30 day period pay all uncontested
Future Response Costs to the United States in the manner described in Paragraph 53.
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Simultaneously, the Settling Defendants 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
Defendants 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
Defendants 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 Defendants shall pay the sums due (with accrued interest) to the United States in the
·manner described in Paragraph 53. If the Settling Defendants prevail concerning any aspect of
the contested costs, the Settling Defendants shall pay that portion of the costs (plus associated
accrued interest) for .which they did not prevail to the United States in the manner described in
Paragraph 53; Settling Defendants 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 Defendants' obligation to reimburse the United States for its
Future Response Costs.
55. In the event that the payments required by Subparagraph 52.a are not made within
: 30 days of the Effective Date or the payments required by Paragraph 53 are not made within 30 .
days of the Settling Defendants' receipt of the bill, Settling Defendants shall pay Interest on the
unpaid balance. The Interest to be paid on Past Response Costs under this Paragraph shall begin
to accrue on the Effective Date. 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 Defendants'
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 Defendants' failure to make
timely payments under this Section including, but not limited to, payment .of stipulated penalties
pursuant to Paragraph 70. The Settling Defendants shall make all payments required by this
Paragraph in the manner described in Paragraph 53.
XVII. INDEMNIFICATION AND INSURANCE
56. · Settling Defendants' Indemnification of the United States.
a. The United States does not assume any liability by entering into this
agreement or by virtue of any designation of Settling Defendants as EPA's authorized
representatives under Section 104(e) of CERCLA. Settling Defendants 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 cause~ of action arising from, or on account
of, negligent or other wrongful acts or omissions of Settling Defendants, their officers, directors, .
employees, agents, contractors, subcontractors, and any persons acting on their behalf or under
their control, in carrying out activities pursuant to this Consent Decree, including, but not limited
to, any claims arising from any designation of Settling Defendants as EPA's authorized
representatives under Section 104(e) of CERCLA. Further, the Settling Defendants agree to pay
the United States all costs it incurs including, but not limited to, attorneys fees and other
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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 Defendants,
their officers, directors, employees, agents, contractors, subcontractors, and any persons acting on
their behalf or under their 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 Defendants in carrying out activities pursuant to this Consent Decree. Neither the ·
Settling Defendants nor any such contractor shall be considered an agent of the United States.
b. The United States shall give Settling Defendants.notice of any claim for
which the United States plans to seek indemnification pursuant to Paragraph 56, and shall consult
with ~ettling Defendants prior to settling such cl~p:i, '· · ·
57. . Settling Defendants waive 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 Defendants 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 Defendants
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 Defendants and any person for performance of
Work on or relating to the Site, including, but not limited to, claims on account of construction
delays.
58. No later than 15 days before commencing any on-site Work, Settling Defendants
shall secure, and shall maintain until the first anniversary of EPA's written notification that the
Work has been completed pursuant to Subparagraph 49.b of Section XIV (Completion of the
Work) comprehensive general liability insurance with limits of one million dollars, combined
single limit, and automobile liability insurance with limits of one million dollars, combined
single limit, naming the United States as additional insured. In addition, for the duration of this
Consent Decree, Settling Defendants shall satisfy, or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations regarding the provision of worker's
compensation insurance for all persons performing the Work on behalf of Settling Defendants in
furtherance of this Consent Decree. Prior to commencement of the Work under this Consent
Decree, Settling Defendants shall provide to EPA certificates of such insurance and a copy of
each insurance policy. Settling Defendants shall resubmit such certificates and copies of policies
each year on the anniversary of the Effective Date. If Settling Defendants demonstrate by
evidence satisfactory to EPA that any contractor or subcontractor maintains insurance equivalent
to that described above, or insurance covering the same risks but in a lesser amount, then, with
respect to that contractor or subcontractor, Settling Defendants need provide only that portion of
the insurance described above which is not maintained by the contractor or subcontractor. ·
XVIII. FORCE MAJEURE
59. "Force majeure/' for purposes of this Consent Decree, is defined as any event
arising from causes beyond the control of the Settling Defendants, of any entity controlled by
Settling Defendants, or of Settling Defendants' contractors, that delays or prevents the
performance of any obligation under this Consent Decree despite Settling Defendants' best efforts
to fulfill the obligation. The requirement that the Settling Defendants exercise "best efforts to
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fulfill the obligation" includes using best efforts to anticipate any potential force majeure event
and best efforts to address the effects of any potential force majeure event (1) as it is occurring
and (2) following the potential force majeure event, such that the delay is minimized to the
greatest extent possible. "Force Majeure" does not include financial inability to complete the
Work or a failure to attain the Perfomiance Standards.
60. 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 Defendants shall notify orally EPA's Project Coordinator or, in his or her absence, EPA's
Alternate Project Coordinator or, in the event both ofEPA's designated representatives are
· unavailable, the Directqr.ofthe Hazardous Waste Management Division, EPA Region 4, within
48 hours of when Setiliiig Defendants first knew that the event might cause a delay. Within 5
days thereafter, Settling Defendants 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; the Settling Defendants'
rationale for attributing such delay to a force majeure event if they intend to assert such a claim;
and a statement as to whether, in the opinion of the Settling Defendants, such event may cause or
contribute to an endangerment to public health, welfare or the environment. The Settling
Defendants shall include with any notice all available documentation supporting their claim that
the delay was attributable to a force majeure. Failure to comply with the above requirements
shall preclude Settling Defendants 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 Defendants shall be deemed to know of any circumstance of.which Settling Defendants,
any entity controlled by Settling Defendants, or Settling Defendants' contractors knew or should
have known.
61. IfEPA 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 fo~ce
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 Defendants in writing of its decisio~. If EPA agrees
that the delay is attributable to a force majeure event, EPA will notify the Settling Defendants in
writing of the length of the extension, if any, for performance of the obligations affected by the
force majeure event.
62. If the Settling Defendants elect to invoke the dispute resolution procedures set
forth in Section XlX (Dispute Resolution), they shall do so no later than _15 days after receipt of
EPA's notice. Iri any such proceeding, Settling Defendants 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 majeure 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 Defendants complied with the requirements of
Paragraphs 59 and 60, above. If Settling Defendants carry this burden, the delay at issue shall be
24
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deemed not to be a violation by Settling Defendants of the affected obligation of this Consent
Decree identified to EPA and the Court.
XIX: DISPlITE RESOLUTION
63. 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 Defendants -
that have not been disputed in accordance with this Section.
64. Any dispute which arises under or with respect to this Consent De~ree shall in tl)e_
first instance be the subject of iriformal"negotiaticins between the parties to the dispute. The -~.:
period for informal negotiations shall not exceed 20 days from the time the dispute arises, unl_ess
it is modified by written agreement of the parties to the dispute. The dispute shall be considered
to have arisen when one party sends the other parties a written Notice of Dispute.
65. Statements of Position.
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 Defendants invoke 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 arid any supporting
documentation relied upon by the Settling Defendants. The Statement of Position shall specify
the Settling Defendants' position as to whether formal dispute resolution should proceed under
Paragraph 66 or Paragraph 67. .
b. Within 15 days after receipt of Settling Defendants' Statement of Position,
EPA will serve on Settling Defendants 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 Position shall include a statement as to whether formal
dispute resolution should proceed under Paragraph 66 or 67. Within 15 days after receipt of
EPA's Statement of Position, Settling Defendants may submit a Reply.
c. If there is disagreement between EPA and the Settling Defendants as to
whether dispute resolution should proceed under Paragraph 66 or 67, the parties to the dispute
shall follow the procedures set forth in the paragraph determined by EPA to be applicable.
However, if the Settling Defendants ultimately appeal 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 66 and 67. ·
66. 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.
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Nothing in this Consent Decree shall be construed to allow any dispute by Settling Defendants
regarding the validity of the RO D's provisions.
a. An administrative record of the dispute shall be 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 66.a. This qecision shall be binding upon the Settling Defendants,
sµbject only to the right to seek judicial review pursuant to Paragr_aph-66.c and di•·
c. Any administrative decision made by EPA pursuant to Paragraph 66.b.
shall be reviewable by this Court, provided that a motion for judicial review of the decision is
filed by the Settling Defendants 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 file a response to Settling Defendants' motion.
d. In proceedings on any dispute governed by this Paragraph, Settling
Defendants 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 ofEPA's decision shall be on the administrative record compiled pursuant to
Paragraph 66.a.
67. 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 Defendants' Statement of Position submitted
pursuant to Paragraph 65, the Director of the Waste Management Division, EPA Region 4, will
issue a °final decision resolving the dispute. The Waste Management Division Director's decision
shall be binding on the Settling Defendants unless, within 10 days of receipt of the decision, the
Settling Defendants file with the Court and serve 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
Defendants' 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.
68. The invocation of formal dispute resolution procedures under this Section shall
not extend, postpone or affect in any way any obligation of the Settling Defendants under this
Consent 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 77. Notwithstanding the stay of
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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 Defendants do not
· prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in
Section XX (Stipulate<;! Penalties).
XX. STIPULATED PENALTIES
69. Settling Defendants shall be liable for stipulated penalties in the amounts set forth
in Paragraphs 70 and 71 to the United States for failure to comply with the requirements of this
C~nsent Decree specified \Jel~w; unl~ss excused under Section XVIII (Force Majeure).· · · '' '·· ·-':
"Compliance" by Settling'befendants 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.
70. Class I Stipulated Penalty.
a. The following stipulated penalties shall accrue per violation per day for
any noncompliance identified in Subparagraph 70.b:
Penalty Per Violation Per Day
$2,000
$4,000 ·
$10,000
Period of Noncompliance
1st through 14th day
15th through 30th day
31st day and beyond
b. Unless otherwise provided in this Consent Decree, each failure to comply
in a timely and adequate manner with the terms of this Consent Decree, including the SOW and
any documents incorporated into this Consent Decree pursuant to its terms, that is not
specifically identified below as a Class II violation under Paragraph 71, including, but not limited
to, failure to make any payment required under Section XVI (Payments for Response Costs),
shall be a Class I violation subject to the stipulated penalties set forth in Paragraph 70.a.
71. Class II Stipulated Penalty.
a. The following stipulated penalties shall accrue per violation per day for
failure to submit timely or adequate reports or other written documents pursuant to _Section X
(Reporting Requirements). Such violations shall be Class II violations.
Penalty Per Violation Per Day
$1,500
$3,000
$4,500
Period of Noncompliance
1st through 14th day
15th through 30th day
31st day and beyond
72. In the event that EPA assumes performance of a portion or all of the Work
pursuant to Paragraph 83 of Section XXI (Covenants by Plaintiff), Settling Defendants shall be
liable for a stipulated penalty in the amount of $1,000,000.
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73. All penalties shall begin to accrue on the day after the complete performance 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 penalties
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 Defendants of any deficiency;
(2) with respect to a decision by the Director of the Waste Management Division, EPA Region 4,
under Paragraph 66.b or 67 .b of Section XIX (Dispute Resolution), during the period, if any,
beginning on the 21st day after the date that Settling Defendants' reply to EPA's Statement of·
. Position is received until the date that the Director issues a final decision regar<ling 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.
74. Following EPA's determination that Settling Defendants have failed to comply
with a requirement of this Consent Decree, EPA may give Settling Defendants written
notification of the same and describe the noncompliance. EPA may send the Settling Defendants
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 Defendants of a
violation.
75. All penalties accruing under this Section shall be due and payable to the United
States within 30 days of the Settling Defendants' receipt from EPA of a demand for payment of
the penalties, unless Settling Defendants invoke 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 Superfund Collection Officer, Superfund Accounting, U.S. EPA, Region 4, P.O. Box
. 100142, Atlanta Georgia 30384, shall indicate that the payment is for stipulated penalties, and·
shall reference the EPA Region and Site/Spill ID #a424, 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 Payment Notices,
CERCLA Program Services Branch, Waste Management Division, U.S. EPA, Region 4, 61
Forsyth Street, S.W., Atlanta, Georgia 30303.
76. The payment of penalties shall not alter in any way Settling Defendants' obligation
to complete the performance of the Work required under this Consent Decree.
77°. Penalties shall continue to accrue as provided in Paragraph 73 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 Defendants shall pay all accrued penalties determined by the Court to
28
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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
Defendants 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 escr_ow agent
shall pay the balance of the account to EPA or to Settling Defendants to the extent that they
prevail. -..
78. If SettlingDefendants fail to·pay stipulated penalties ~hen due, the United States
may institute proceedings to collect the penalties, as well as interest. Settling Defendants shall
pay Interest on the unpaid balance, which shall begin to accrue on the date of demand made
pursuant to Paragraph 7 5.
79. 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 Defendants' violation of this Decree or of the statutes and regulations upon
which it is based, including, but not limited to, penalties pursuant to Section 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 States may, in .its
unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
this Consent Decree.
XXI. COVENANTSBYPLAINTIFF
81. In consideration of the actions that will be performed and the payments that will
be made by the Settling Defendants under the terms of the Consent Decree, and except as
specifically provided in Paragraph 82 of this Section, the United States covenants not to sue or to
take administrative action agairist Settling Defendants pursuant to Sections 106 and 107(a) of
CERCLA for performance of the Work and for recovery of Past Response Costs and Future
Response Costs. These covenants not to sue shall take effect upon the receipt by EPA of the
payments required by Paragraph 53.a of Section XVI (Payments for Response Costs). These
covenants not to sue are conditioned upon the satisfactory performance by Settling Defendants of
their obligations under this Consent Decree. These covenants not to sue extend only to the
Settling Defendants and do not extend to any other person.
82. General reservations of rights. The United States reserves, and this Consent
Decree is without prejudice to, all rights against Settling Defendants with respect to all matters
not expressly included within Plaintiff's covenant not to sue. Notwithstanding any other
provision of this Consent Decree, the United States reserves all rights against Settling Defendants
with respect to:
a. claims based on a failure by Settling Defendants to meet a requirement of
this Consent Decree;
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b. liability arising from the past, present, or future disposal, release, or threat
of release of Waste Material outside of the Site;
c. liability based upon the Settling Defendants' ownership or operation of the
Site, or upon the Settling Defendants' transportation, treatment, storage, or disposal, or the
arrangement for the transportation, treatment, storage, or disposal of Waste Material at or in
connection with the Site, other than as provided in the ROD, the Work, or otherwise ordered by
EPA, after signature of this Consent Decree by the Settling _Defendants;
d. liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
e. criminal liability; _:.:•;"·
f. liability for violations of federal or state law which occur during or after
implementation of the Remedial Action;
g. liability, prior to completion of the Remedial Action, for additional
response actions that EPA determines are necessary to achieve Performance Standards, including
a contingent groundwater remedy, but that cannot be required pursu_ant to Paragraph 13
(Modification of the SOW or Related Work Plans); and
h. liability for additional operable units at the Site or the final response
action; and
i. liability for costs that the _United States wjll incur related to the Site but
not within the definition of Future Response Costs.
83. . Work Takeover In the event EPA determines that Settling Defendants have
ceased implementation of any portion of the Work, are seriously or repeatedly deficient or late in
their 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 Defendants may invoke the
procedures set forth in Section XIX (Dispute Resolution), Paragraph 66, 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 Defendants shall pay pursuant to Section XVI (Payment for
Response Costs).
84. 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 Defendants
85. Covenant Not to Sue. Subject to the reservations in Paragraph 86, Settling
Defendants hereby covenant not to sue and agree 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;
30
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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 ~!aims arising out of response ~ctions at or in connection with the Site,
including any claim under the United States Constitution, the North Carolina Constitution, the
Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended, or
at common law.
Except as provided in Paragraph 88 (Waiver of Claims Against De Micromis Parties),
and Paragraph 93 (waiver of Claim-Splitting Defenses), these covenants n~t to sue shall not
apply in"tlie event that.the United States brings a cause of action or issues an order pursuant to
. tfrereservations set forth in Paragraph 81 (b) -(d) or 94 (g)-(i), but only to the extent that Settling
Defendants' claims arise from the same response action, response costs, or damages that the
· United States is seeking pursuant to the applicable reservation.
86. The Settling Defendants reserve, 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
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 the 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 Defendants' 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.
87. 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).
88. Settling Defendants agree not to assert any claims and to waive all claims or·
causes of action that they may have for all matters relating to the Site, including for contribution,
against any person where the person's liability to Settling Defendants with respect to the Site is
based solely on having arranged for disposal or treatment, or for transport for disposal or
treatment, of hazardous substances at the Site, or having accepted for transport for disposal or
treatment of hazardous substances at the Site, if:
a. the materials contributed by such person to the Site containing hazardous
substances did not exceed the greater of (i) 0.002% of the total volume of waste at the Site, or (ii)
110 gallons of liquid materials or 200 pounds of solid materials.
b. This waiver shall not apply to any claim or cause of action against any
person meeting the above criteria if EPA has determined that the materials contributed to the Site
by such person contributed or could contribute significantly to the costs of response at the Site.
This waiver also shall not apply with respect to any defense, claim, or cause of action that a
31
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Settling Defendant may have against any person if such person asserts a claim or cause of action
relating to the Site against such Settling Defendant.
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
89. · Except as provided in Paragraph 88 (Waiver of Claims Against De Micromis
Parties), 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. Except as provided in Paragraph 88 (Waiver of Claims Against De
Micromis Parties), 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 w)tich 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.
90. The Parties agree, and by entering this Consent Decree this Court finds, that the
Settling Defendants are entitled, as of the Effective Date, 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. For purposes of contribution protection, matters addressed
shall be the Work performed or to be performed by the Settling Defendants relating to the Site,
and all response costs incurred by Settling Defendants relating to the Site. Matters addressed in
this Consent Decree do not include those response costs or response actions as to which the
United States has reserved its rights under this Consent Decree (except for claims for failure to
comply with this Decree), in the event that the United States asserts rights against Settling
Defendants coming within the scope of such reservations.
91. The Settling Defendants agree that with respect to any suit or claim for
contribution brought by them for matters related to this Consent Decree they will notify the
United States in writing no later than 60 days prior to the initiation of such suit or claim.
92. The Settling Defendants also agree that with respect to any suit or claim for
contribution brought against them for matters related to this Consent Decree they will notify in
writing the United States within 10 days of service of the complaint on them. In addition,
Settling Defendants 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.
93. 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 Defendants 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 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 by Plaintiff).
XXN. ACCESS TO INFORMATION
94. Settling Defendants shall provide to EPA, upon request, copies of all documents
and information within their possession or control or that of their contractors or agents relating to
32
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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 traffic routing, correspondence, or other documents or information related to the Work.
Settling Defendants shall also make available to EPA, for purposes of investigation, information
gathering, or testimony, their employees·, agents, or representatives with knowledge of relevant
facts concerning the performance of the Work.
95. Business Confidential and Privileged Documents.
a. Settling Defendants may assert business confidentiality claims covering
part.or all of the documents or information. submitti;d to',Plaintiff under this 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 or information when they are submitted to EPA, or if
EPA has notified Settling Defendants that the documents or information are not confidential
under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public
may be given access to such documents or information without further notice to Settling
Defendants.
b. The Settling Defendants 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 SettlingDefendants assert such a privilege in lieu of providing
documents, they 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 Defendants. 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.
96. 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.
XXV. RETENTION OF RECORDS
97. Until 10 years after the Settling Defendants' receipt of EPA's notification pursuant
to Paragraph 49.b of Section XIV (Completion of the Work), each Settling Defendant shall
preserve and retain all non-identical copies of records and documents (including records or
documents in electronic form) now in its possession or control or which come into its possession
or control that relate in any manner to its liability under CERCLA with respect to the Site,
provided, however, that Settling Defendants who are potentially liable as owners or operators of
the Site must retain, in addition, all documents and records that relate to the liability of any other
person under CERCLA with respect to the Site. Each Settling Defendant must also retain, and
insn;uct its contractors and agents to preserve, for the same period of time specified above all
non-identical copies of the last draft or final version of any documents or records (including
documents or records in electronic form) now in its possession or control or which come into its
33
• •
possession or control that relate in any manner to the performance of the Work, provided,
however, that each Settling Defendant (and its contractors and agents) must retain, in addition,
copies of all data generated during the performance of the Work and not contained in the
aforementioned documents required to be retained. Each of the above record retention
requirements shall apply regardless of any corporate retention policy to the contrary.
98. At the conclusion of this document retention period, Settling Defendants 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 Defendants shall deliver any such
records or documents to EPA. The Settling Defendants 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 th-e Settling Defendants assert.such a privilege, they 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 subject of the document, record, or information; and (6) the privilege asserted
by Settling Defendants. However, no documents, reports or other information created or
generated pursuant to the requirements of the Consent Decree shall be withheld on the grounds
th_at they are privileged. ·
99. 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 (other than identical
copies) 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
100. . 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 their
successors give notice of a 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 Defendants, respectively.
'
34
•
As to the United States:
and
As to EPA:
As to the State: David Mattison
As to the Settling Defendants:
•
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DOJ Case# _____ _
Director, Waste Management Divi_sion
Unitr.d §tate~ Environmental Protection Agency
Region·4
Atlanta Federal Center
61 Forsyth Street, S.W.
Atlanta, GA 30303
Re: Site#: A424
Samantha Urquhart-Foster
Remedial Project Manager
United States Environmental Protection Agency
Region 4
Atlanta Federal Center
61 Forsyth Street, S.W.
Atlanta, GA 30303
NCDENR
401 Oberlin Road, Suite 150
Raleigh, NC 27605
[Name]
Settling Defendants' Project Coordinator
[Address]
xxvn. EFFECTIVEDATE
101. The effective date of this Consent Decree shall be the date qpon which this
Consent Decree is entered by the Court, except as otherwise provided herein.
XXVIII. RETENTION OF JURISDICTION
102. This Court retains jurisdiction over both the subject matter of this Consent Decree
and the Settling Defendants 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
35
• •
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.
Decree:
XXIX. APPENDICES
103. The following appendices are attached to and incorporated into this Consent
"Appendix A" is the ROD.
"Appendix B" is the RD.
"Appendix C" is the description and/or map of the Site.
"Appendix D" is the complete list of the Settling Defendants.
"Appendix E" is the complete list of the Owner Settling Defendants.
"Appendix F" is the SOW.
XXX. COMMUNITY RELATIONS
104. Settling Defendants shall propose to EPA their participation in the community
relations plan to be developed by EPA. EPA will determine the appropriate role for the Settling
Defendants under the Plan. Settling Defendants shall also cooperate with EPA in providing
information regarding the Work to the public. As requested by EPA, Settling Defendants shall
participate in the preparation of such information for dissemination to the public and in public
meetings which may be held or sponsored by EPA to explain activities at or relating to the Site.
XXXI. MODIFICATION
105. · Schedules specified in this Consent Decree for completion of the Work may be
modified by agreement of EPA and the Settling Defendants. All such modifications shall be
made in writing.
106. Except as provided in Paragraph 13 (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 Defendants, and the Court, if such modifications
fundamentally alter the basic features of the selected remedy within the meaning of 40 C.F.R.
300.435(c)(2)(B)(ii). 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, or material.
modifications to the SOW that do not fundamentally alter the basic features of the selected
remedy within the meaning of 40 C.F.R.300.435(c)(2)(B)(ii), may be made by written agreement
between EPA, after providing the State with a reasonable opportunity to review and comment on
the proposed modification, and the Settling Defendants.
107. Nothing in this Decree shall be deemed to alter the Court's power to enforce,
supervise or approve modifications to this Consent Decree.
36
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XXXII. LoDGING AND OPPORTUNITY FOR PuBuc COMMENT
108. 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 Defendants consent to the entry of this Consent Decree without further notice.
109. 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 inay not be used as evidencr, in any litigation between the Parties ..
XXXIIl. SIGNATORIES/SERVICE
110. Each undersigned representative of a Settling Defendant to this Consent Decree
and the Assistant Attorney General for the Environment and Natural Resources Division of the
Department of Justice certifies that he or she is fully authorized to enter into the terms and
conditions of this Consent Decree and to execute and legally bind such Party to this document.
111. 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 Defendants in writing that it no longer supports entry of the Consent Decree.
112. 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 Defendants hereby agree to accept service in that manner and to waive the formal service
requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local
rules of this Court, including, but not limited to, service of a summons. [The parties agree that
Settling Defendants need not file an answer to the complaint in this action unless or until the
court expressly declines to enter this Consent Decree].
XXXIV. FlNALJUDGMENT
113. This Consent_Decree and its appendices constitute the final, complete, and
exclusive agreement and understanding among the parties with respect to the settlement
embodied in the Consent Decree. The parties acknowledge that there are no representations,
agreements or understandings relating to the settlement other than those expressly contained in
• ihis Consent Decree.
114. Upon approval and entry of this Consent Decree by the Court, this Consent
Decree shall constitute a final judgment between and among the United States and the Settling
Defendants. The Court finds that there is no just reason for delay and therefore enters this
judgment as a final judgment under Fed. R. Civ. P·. 54 and 58.
37
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SO ORDERED THIS DAY OF ___ , 20_.
United States District Judge
-:.,: .
38
•
Date
Date
Date
•
FOR THE UNITED STATES OF AMERICA
Thomas L. Sansonetti
Assistant Attorney General
Environment and Natural Resources Division
· U.S. Department of Justice
'Nashi.ngton, D.C. 20530
Lori Jonas
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington,D.C. 20044-7611
[Name]
Assistant United States Attorney
___ District of __ _
U.S. Department of Justice
[Address]
39
•
Date
Date
•
J. I. Palmer, Jr.
Regional Administrator, Region 4
U.S. Environmental Protection Agency
Atlanta Federal Center
61 Forsyth Street, S.W.
Atlanta, GA 30303
Bonnie R. Sawyer
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region 4
Atlanta Federal Center
61 Forsyth Street, S.W.
Altanta, GA 30303
40
•
Date
•
FOR _____ -'--COMPANY, INC.*/
Signatu,_,re ... : _____________ _
Name (1<an.,,·n..,tu.:~------------
Title:
Address.,_,: _____________ _
Agent Authorized to Accept Service on Behalf of Above-signed Party:
Name (1<an'-"·n'"'t'-"-: ___________ _
Title:
Address=: _____________ _
Ph. Number:
41
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APPENDIXF
ST A TEMENT OF WORK FOR THE
REMEDIAL ACTION AT THE
REASOR CHEMICAL COMPANY SUPERFUND SITE
NEW HANOVER COUNTY, NORTH CAROLINA
TABLE OF CONTENTS
Section. Page
I. INTRODUCTION ....................................................... l
II. OVERVIEW OF THE REMEDY ........................ : .................. l
ill. REMEDY .............................................................. .f
A. Components ...................................................... l
B. Treatment ... , ........................................... · ......... .f
C. Performance Standards ............................................. l
D. Compliance Testing ................................................ .f
IV. PLANNING AND DELIVERABLES ........................................ .f
TASK I -PROJECT PLANNING ........................................... .3.
A. Site Background ............................................. .3.
B. Project Planning ............................................. .3.
TASK II -REMEDIAL ACTION ........................................... .3.
A. Remedial Action Planning ..................................... .3.
B. Preconstruction Conference .................................... I
C. Prefinal Construction Inspection ................................ li
D. Final Construction Inspection .................................. li
E. Final Construction Report ..................................... li
F. Remedial Action Report ...................................... 2.
TASK ID-OPERATION AND MAINTENANCE .............................. 2.
A. Operation and Maintenance Plan ................................ 2.
B. Operation and Maintenance Manual ............................ ll
TASK IV -PERFORMANCE MONITORING ................................ ll
A. Performance Standards Verification Plan ........................ ll
B. FiveYearReview ........ · ................................... 11
.REFERENCES ....................................................... , ...... 13
SUMMARY OF THE MAJOR DELIVERABLES ................................... .Ll.
DR.Al=T -Jul4 ,e. 2004 DR.Al=T .,.
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ST A TEMENT OF WORK FOR THE
REMEDIAL ACTION AT THE
•
REASOR CHEMICAL COMPANY SUPERFUND SITE
I. INTRODUCTION
-This Statement of Work (SOW) outlines the work to be performed by Settling Defendant[s] at
the Reasor Chemical Company Superfund Site in Castle Hayne County, North Carolina ("the
Site"). The work outlined is intended to implement the remedy as ·described in the Record of
Decision (ROD) for the Site, dated September 26, 2002, (not including the groundwater
treatment contingency remedy) and to achieve the Performance Standards set forth in the ROD,
Consent Decree, and this SOW: The requirements of this SOW wil_l_:he.further detailed in work
plans and other documents to be submitted by the Settling Defendant[s] 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[s] is(are) responsible for performing the Work to implement the selected
remedy. EPA shall conduct oversight of the Settling Defendant's(s') activities throughout the
performance of the Work. The Settling Defendant[s] 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. IfEPA 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 Defendant[s] shall submit for
the Work is attached. ·
II. OVERVIEW OF THE REMEDY
The objectives of this remedial action are:
SOIL: to prevent further migration of contaminants from soil to groundwater and surface water
and to eliminate the unacceptable risk to human health and the environment from contaminated
soil by attaining the human health and ecological risk based cleanup goals for the following
contaminants of concern: benzo(a)pyrene, benzo(a)anthracene, benzo(b &/or k)fluoranthene,
indeno(l,2,3-cd)pyrene, dibenzo(a,h)anthracene, Total PAHs, antimony, copper, and lead.
SEDIMENT: to prevent further migration of contaminants from sediment to groundwater and
surface water, and to eliminate exposure of ecological receptors to contaminated sediment by
achieving ecological risk based sediment cleanup goals for the following contaminants of
concern: methyl ethyl ketone, toluene, (3-and/or 4-)methyl phenol, total PAHs, and copper. ·
SURF ACE WATER: to prevent further migration of contaminants to soil, groundwater and
down-gradient surface water bodies, and to eliminate exposure to contaminated surface water by
aquatic receptors by achieving the North Carolina Surface Water Quality Standards (NCAC Title
15A, Chapter 2, Subchapter 2L.0100 and 2L.0200) for the following contaminants of concern:
copper, lead, iron and zinc.
GROUNDWATER: to restore groundwater to drinking water levels by attaining Federal
Drinking Water or risk-based standards for the contaminants of concern: thallium (Federal
Maximum Contaminant Levels (MCLs)) and aluminum (risk-based).
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III. REMEDY
The remedy includes the (a) extraction and off-site disposal of approximately 500,000 gallons of
contaminated surface water from ponds 1, 2, 3 and 4; (b) excavation and off-site disposal of
approximately 1,600 cubic yards of contaminated soil and sediment from seven discrete
locations: scrap copper area, drum disposal area, pipe shop area, pond 1, pond 2, pond 3 and
pond 4; and (c) groundwater monitoring to determine the source of elevated aluminum levels as
well as annual monitoring to determine if contaminants of concern continue to be elevated. The
ROD states that if contaminants of concern continue to be elevated, the groundwater contingency
remedy of extraction and treatment using constructed wetlands will be implemented. However,
the contingency remedy will not be a part of this Consent Decree. In addition to the remedy
described above, a wetland area should be created (either on-or off-site) to make up for the loss
of wetland and open water habitat functions resulting from excavation and subsequent
backfilling of four pond areas. Final location, design, and performance criteria of this wetland
mitigation should be outlined in a Habitat Restoration Plan.
A. Components
The major components of the remedy are described in Section 2.12, Selected
Remedy section of the attached Record of Decision.
B. Treatment
The treatment technologies for the remedy are described in Section 2.12, Selected
Remedy section of the attached Record of Decision.
C. Performance Standards
D.
Settling Defendant[s] shall meet all Performance Standards, as defined in the
Consent Decree including the standards set forth in the attached Record of
Decision. However, groundwater monitoring is the only requirement for that
media in this Consent Decree.
Settling Defendant[s] shall operate the soil/sediment/surface water treatment
_systems until Settling Defendant[s] has [have] demonstrated compliance with the
respective Performance Standards, in accordance with the Performance Standards
Verification Plan.
Compliance Testing
Settling Defendant[s] shall perform compliance testing to ensure that all
Performance Standards are met. The excavated areas and groundwater shall be ·
tested in accordance with the Performance Standard Verification Plan developed
pursuant to Task V of this SOW. After demonstration of compliance with
Performance Standards, Settling Defendant[s] shall monitor the Site for a
minimium of [five] years.
IV. PLANJ'l.'lNG AND DELIVERABLES
The specific scope of this work shall be documented by Settling Defendant[s] in a Remedial
Action (RA) Work Plan. Plans, specifications, submittals, and other deliverables shall be subject
· to EPA review and approval in accordance with Section XII of the Consent Decree. All
approved, final documents shall also be submitted to the RPM in electronic format, within 15
days of document approval notification.
DRA!=T July ,e. 1004 DRA!=T
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Settling Defendant[s] 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[s] is(are) responsible for fulfilling additional data and analysis
needs identified by EPA during the RA process consistent with the general scope and objectives
of the Consent Decree, including this SOW ..
Settling Defendant[s] shall perform the following tasks:
TASK I -PROJECT PLANNJNG
A. . Site Background
Settling Defendant[s] shall gather and evaluate the existing information regarding the· Site and
shall conduct a visit to the Site to assist in planning the RA as follows:
B.
1. Collect and Evaluate Existing Data and Document the Need for Additional Data
2.
Before planning RA activities, all existing Site data shall be thoroughly compiled
and reviewed by Settling Defendant[s]. Specifically, this shall include the ROD,
Rl/FS, RD, and other available data related to the Site. This information shall be
. utilized in determining additional data needed for RA implementation. Any
additional data needed to evaluate the presence of elevated levels of aluminum in
the groundwater should be considered. Final decisions on the necessary data and
DQOs shall be made· by EPA.
Conduct Site Visit
Settling Defendant[s] 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 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 (if any) to implement the RA.
Project Planning
Once Settling Defendant[s] has[have] collected and evaluated existing data and conducted a visit
to the Site, the specific project scope shall be planned. Settling Defendant[s] shall meet with
EPA at the completion of this evaluation regarding the following activities and before proceeding . with Task II. . .
TASK II -REMEDIAL ACTION
Remedial Action shall be performed by Settling Defendant[s] to implement the response actions
selected in the ROD.
A. Remedial Action Planning
Within 30 days after EPA's issuance of an authorization to proceed pursuant to Paragraph 10 of
the Consent Decree, Settling Defendant[s] shall submit a draft Remedial Action (RA) Work Plan,•
Project Delivery Strategy, a Construction Management Plan, a Construction Quality Assurance
Plan, and a Construction Health and Safety Plan/Contingency Plan. The RA Work Plan, Project
Delivery Strategy, 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.
DRAl=T Jul41e. 1004 DRAl=T
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Upon approval of the RA Work Plan, Settling Defendant[s] shall implement the RA Work Plan
in accordance with the construction management schedule. Significant field changes to the RA
as set forth in the RAW ork 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 XII 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.
1. RA Work Plan
A Work Plan which provides a detailed plan of action for completing the RA
activities shall be subrritted to EPA for review and approval. The objective of,:,,c
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 Project Delivery Strategy,
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.
Specifically, the RA 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 II.
b. A schedule for completion of each required activity and submission of
each deliverable required by this Consent Decree, including those in this
sow.
c. 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.
d. 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.
· 2. Project Delivery Strategy
Settling Defendant[s] shall submit a document to EPA for review and approval
describing the strategy for delivering the project. This document shall address the
managyment 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. ·
3. 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
DRA!=T -July ?B. ?004 DRA!=T
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the RA. Settling Defendant[s] 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.
4. Construction Quality Assurance Plan
Settling Defendant[s] 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 IV). 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 IQAT will implement the control system for all aspects of the work
specified and shall report to the project coordinator and EPA. The IQAT
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 IQAT 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 independent of the
construction contractor.
b. The name, qualifications, duties, authorities, and responsibilities of each
person assigned a QC function.
c. 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 plaris for
implementing corrective measures shall be addressed.
d. 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.
e. 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.
DRAl=T Ju14 ,e, ,004 DRAl=T
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•
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f. . 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.·
5. Construction Health and Safety Plan/Contingency Plan
Settling Defendants 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
Construgtion Health and Safety Plan/Contingency Plan, but rath~,r 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. Name of person who will be responsible in the event of an emergency
incident.
b. 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.
c. 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.
d. 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.)
e. Plans for protection of public and visitors to the job site.
f.. 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[s] shall clearly identify
these compounds and the detection and notification levels required in
Paragraph 4 below. Air monitoring shall include personnel monitoring,
on-site area monitoring, and perimeter monitoring. ·
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.
DRAl=T July 28. 2004 DRAl=T
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• •
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 .
. provisionsJor notifying nearby residents, local, state and federal.agencies
in the event that unacceptable concentrations of airborne toxic constituents
are migrating off-site. Settling Defendant[s] shall report detection of
unacceptable levels of airborne contaminants to EPA in accordance with
Section XI 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
einergency measures required to contain any spillage and to remove spilled
materials and soils or liquids that become contaminated due to spillage.
This collec_ted spill material must be properly disposed of.
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[s] 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. Review methods for distributing and storing documents and reports;
4. Review work area security and safety protocols;
5. Review the Construction Schedule;
DRAl=T Jul4 ,8. ,004 DRAl=T
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6. 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[s] 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
othercfederal, state, and local agencies with a jurisdictional interescHhe 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[s]. Settling Defendant[s] 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 Construction Inspection Report shall be submitted by
Settling Defendant[s] which outlines the outstanding construction items, actions required to
resolve the items, completion date for the items, and ari anticipated date for the Final Inspection.
D. Final Construction Inspection
Upon completion of all outstanding construction items, Settling Defendant[s] 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. Confirmation
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
correct.ion 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[s] shall submit a Final Construction Report. EPA will review the draft report and will
provide comments to Settling Defendant[s]. 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.
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F. Remedial Action Report
As provided in Section XIV of the Consent Decree, within 90 days after Settling Defendant[s]
concludes that the Remedial Action has been fully performed and the Performance Standards
have been attained, Settling Defendant[s] shall so certify to the United States and shall schedule
and conduct a pre-certification inspection to be attended by EPA and Settling Defendant[s]. If
after the pre-certification inspection Settling Defendant[s] still believes that the Remedial Action
has been fully performed and the Performance Standards have been attained, Settling
Defendant[s] 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[s] will Implement any remaining part of
·the EPA approved Operation and Maintain Plan.
After EPA review, Settling Defendant[s] 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 ill-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 same time the RA Work Plan is submitted, Settling Defendant[s] 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[s] 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[s]. 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,
c. Schedule for training personnel regarding appropriate operational
procedures once start-up has been successfully completed.
DRAl=T Ju1 4 1s, 1004 DRAl=T
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2. Description of normal operation and maintenance;
a. Description of tasks required for system operation;
b. Description of tasks required for system maintenance;
c. Description of prescribed treatment or operating conditions; and .
d. . Schedule showing the required frequency for each O&M task.
3. Description of potential operating problems;
a. .:::Description and analysis of potential operating problems;
b. Sources of information regarding problems; and
c. Common remedies or anticipated corrective actions.
4. Description of routine monitoring and laboratory testing;
a. Description of monitoring tasks;
b. Description of required laboratory tests and their interpretation;
c. Required QNQC; and
d. Schedule of monitoring frequency and date, if appropriate, when
monitoring may cease.
5. Description of altemate.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.
6. Safety Plan;
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.
7. Description of equipment;
a. Equipment identification;
b. Installation of monitoring components;
C. Maintenance of site equipment; and
d. Replacement schedule for equipment and installation components.
DRAl=T July ,e. ,004 DRAl=T
10
B.
•
8. Records and reporting;
a.
b.
C.
d.
e.
/
Daily operating logs;
Laboratory records;
Records of operating cost;
Mechanism for reporting emergencies;
Personnel a_nd Maintenance Records; and
f. . ... , Monthly reports to State/Federal Agencies.
Operation and Maintenance Manual
•
At the 30 percent construction stage, Settling Defendant[s] 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 IV -PERFORMANCE MONITORING
Performance monitoring shall be conducted to ensure that all Performance Standards are met.
A. Performance Standards Verification Plan
The purpose of the Performance Standards Verification Plan (PSVP) is to provide a mechanism
to ensure that both short-term and long-term Performance Standards for the Remedial Action are
met. Settling Defendant[s] shall submit a Performance Standards Verification Plan with the
Remedial Action Work Plan. Once approved, Settling Defendant[s] shall implement the
Performance Standards Verification Plan on the approved schedule.
The PSVP shall ensure that sample collection and analytical activities are conducted in
accordance with technically acceptable protocols and that the data generated will meet the DQOs
established.
The PSVP shall include a Field Sampling and Analysis Plan (FSAP) and a Quality Assurance
Project Plan (QAPP). 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
analysis. The Fie_ld 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 (QNQC) protocols that shall be used to achieve the desired
DQOs. The DQOs shall; 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
cusiody, analytical procedures, and data reduction, validation, and reporting. These procedures
must be consistent with the Region IV Environmental Compliance Branch Standard Operating
Procedures and Quality Assurance Manual and the guidances specified in Section IX of the
Consent Decree.
DRA+=T July 2e. 2004 DRA+=T
II
• •
Settling Defendant[s] 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 IX of the Consent Decree. EPA may require that Settling Defendant[s] 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). .
The PSVP shall also specify those tasks to be performed by Settling Defendant[s] to demonstrate
compliance with the Performance Standards and a schedule for the performance of these tasks.
B.> ::·. Five Year Review
Because the selected remedy will take longer than five years to complete (groundwater
monitoring), as a matter of policy, EPA shall conduct a Five Year Review to ensure that the
remedy has reached the goal of being protective of human health and the environment. The
Settling Defendant shall prepare the Five Year Review Report and submit it to EPA for review
and approval. The draft report shall be submitted to EPA at least six months prior to the due
d~. .
DRA!=T July ,e. 1004 DRA!=T
I?
• •
REFERENCES
The following list, although not comprehensive, comprises many of the regulations and guidance
documents that apply to the RD/RA process. Settling Defendant[s] shall review these guidances
and shall use the information provided therein in performing the RD/RA and preparing all
deliverables under this SOW.
l.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
-,
"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, EPN540/P-87/00la, August 1987,
OSWER Directive No. 9355.0-14.
"EPA NEIC Policies and Procedures Manual," EI'A-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,
EPN540/G-87/003, March 1987, OSWER Directive No. 9335.0-7B.
"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.
"Interim Guidelines and Specifications'for Preparing Quality Assurance Project Plans,"
U.S. EPA, Office of Emergency and Remedial Response, QAMS-005/80, December
1980.
"Users Guide to the EPA Contract Laboratory Program," U.S. EPA, Sample Management
Office, August 1982.
"Environmental Compliance Branch Standard Operating Procedures and Quality
Assurance Manual," U.S. EPA Region IV, Environmental Services Division, February 1,
1991, (revised periodically).
"USEPA Contract Laboratory Program Statement of Work for Organics Analysis," U.S.
EPA, Office of Emergency and Remedial Response, February 1988.
"USEP A Contract Laboratory Program Statement of Work for Inorganics Analysis," U.S.
EPA, Office of Emergency and Remedial Response, July 1988.
DRAl=T July ?o. ?004 DRAl=T
13
• •
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.
"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.
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. '"fLVs,-Threshold Limit Values and Biological Exposure Indices for 1987 -88,"
American Conference of Governmental Industrial Hygienists.
26. "American National Standards Practices for Respiratory Protection," American National
Standards Institute Z88.2-1980, 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.)]
DRAl=T Jul4 ,e. ,004 DRAl=T
14
• •
SUMMARY OF THE MAJOR DELIVERABLES FOR THE
REl\1EDIAL ACTION AT THE
REASOR CHEMICAL COMPANY SUPERFUND SITE
DELIVERABLE
TASK I PROJECT PLANNING
No deliverables planned as part of Task I.
TASKil REMEDIAL ACTION
..
RA Work Plan (6)
Project Delivery Strategy (6)
Construction Management Plan (6)
Construction Quality Assurance Plan (6)
Construction Health and Safety
Plan/Contingency Plan (6)
Prefinal Construction Inspection Report (6)
Final Construction Report (6)
Remedial Action Report (6)
TASK ill OPERATION AND MAINTENANCE
Operation and Maintenance Plan (6)
Operation and Maintenance Manual (6)
TASK IV Monitoring
Performance Standards Verification Plan (6)
Five Year Review Report (6)
EPA RESPONSE
·· ,·Review and Approve
Review and Approve
Review and Approve
Review and Approve
Review and Comment
Review and Approve
Review and Approve
Review and Approve
Review and Approve
Review and Approve
I
Review and Approve
Review and Approve
• NOTE: The number in parenthesis indicates the number of copies to be submitted by
Respondents. One copy shall be unbound, the remainder shall be bound. One of the copies shall ·
be submitted directly to the State contact identified in the Consent Decree. The remainder of the
copies shall be sent to the RPM. All approved, final documents shall also be submitted to the
RPM in electronic format, within 15 days of document approval notification. The reviews,
comments and approvals will be documented by letters from the RPM.
DRAJ=T July ?8. 1004 DRAJ=T
15
• • !
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
4WD-SRSEB
Dexter Matthews, Director
Division of Waste Management
NC DENR
40 I Oberlin Road, Suite 150
Raleigh, NC 27605
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
JUN O 9 2004
Subject: Notification o_f Remedial Action Negotiations
Reasor Chemical Company Superfund Site
Castle Hayne, New Hanover County, North Carolina
Dear Mr. Matthews:
The United States Environmental Protection Agency (EPA) has documented the release
or threatened release of hazardous substances, pollutants or contaminants at the Reasor Chemical
Company Superfund Site. Section 121 (f)(l)(F) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments
and Reauthorization Act of 1986 (SARA), requires EPA to notify the State of anticipated
negotiations with the potentially responsible parties to voluntarily conduct the Remedial Action.
This letter represents that notification.
In addition, we wish to offer you the opportunity to participate in the forthcoming
negotiations and, subject to certain restrictions, be party to any settlement. However, please note
. that Congress has mandated certain limited time frames under Section 122(e) of SARA
for negotiations with potentially responsible parties. Therefore, it is important that you or your
representative contact EPA as soon as possible should you wish to participate in the negotiations.
Please contact Samantha Urquhart-Foster, the Remedial Project Manager for the Site, at
[phone] or Bonnie Sawyer, our attorney, at [phone]. This will provide EPA with
the maxi.mum benefit of your expertise and unique perspective. Thank you for your cooperation
and support.
Superfund Remedial and Site Evaluation Branch
cc: . David Mattison, NC DENR
Internet Address (URL) • http:llwww.epa.gov
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