NCD986187094_20080331_Reasor Chemical Company_FRBCERCLA SPD_Consent Decree 2006 - 2008-OCR

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.•·
March 31, 2008
By Federal Express
Ms. Samantha Urquhart-Foster
Remedial Project Manager
U.S. Environmental Protection Agency
Region IV
61 Forsyth St., SW
Atlanta, GA 30303
WILMERl-IALE
Jeffrey J. Davidson
t 1 202 663 6037 10
t l 202 663 6363 It)
jell rev .davidson@wilm erhale. com
Re: Reasor Chemical Company Site, Castle Hayne, North Carolina; ·DOJ Case No. 90-11-3-
08268; EPA Site/Spill ID No. A424 -Additional Updated Insurance Information
Dear Samantha:
We are providing updated insurance information with attention to requirements of paragraph 60
of the October 2006 Consent Decree entered into by and among the United States and Jane C.
Sullivan, Hilda C. Dill, and Martin Marietta Materials, Inc. These documents are in addition to
those provided on March I 0, 2008.
Please feel free to contact us with any questions.
Best regards,
1wi,v~kf 'W\J,fwv-
1eftrey J. Davidson
Marguerite E. McLamb
Wilmer Cutler Pickering Hale and Dorr LLP
Counsel for Ms. Dill and Ms. Sullivan
Enclosures
cc (w/o enc.; by e-mail only): Ms. Hilda Dill
Mr. Scott Sullivan
Matthew Dill, Esq.
William White, Esq.
Yvonne Bailey, Esq.
Bonnie Sawyer, Esq.
Mr. David Mattison
Mr. Jeff Titus
Wilmer Cutler Pickering Hale and Dorr Ltr, 1875 Pennsylvania Avenue NW, Washington, DC 20006
8St1)0{1S 668B6ttfo-l Berlin Boston Brussels London Munich New York Northern Virginia Oxford Palo A11o Waltham Washington
\
• • Martin Marietta Materials
271 o Wycliff Road
Raleigh, North Carolina 27607
Telephone [phone]
Fax [phone]
Anne H. Lloyd
Senior Vice President,
Chief Financial Officer and Treasurer
•
LETTER FROM CHIEF FINANCIAL OFFICER
Regional Administrator
United States Environmental Protection Agency
Region 4
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, GA 30303-8960
I am the Chief Financial Officer of Martin Marietta Materials, Inc. This letter is in support of
this firm's use of the financial test to demonstrate financial assurance for closure and/or post-
closure costs, as specified in subpart H of 40 CFR parts 264 and 265.
1. This firm is the owner or operator of the following facilities for which financial assurance
for closure or post-closure care is demonstrated through the financial test specified in subpart H
of 40 CFR parts 264 and 265. The current closure and/or post-closure cost estimates covered
by the test are shown for each facility:
This firm is not the owner or operator of the following facility; however, this firm is providing
financial assurance as one of the Settling Defendants in accordance with the RA Consent
Decree being filed in the United States District Court for the Eastern District of North
Carolina, Southern Division for response actions to be implemented at the below Site.
Reasor Chemical Comp_any Superfund Site
5100 North College Road
Castle Hayne, New Hanover County, North Carolina
Closure/post-closure cost estimate: $260,000
2. This firm guarantees, through the guarantee specified in subpart H of 40 CFR parts 264
and 265, the closure or post-closure care of the following facilities owned or operated by the
guaranteed party. The current cost estimates for the closure or post-closure care so guaranteed
are shown for each facility:
None.
• •
3. In States where EPA is not administering the financial requirements of subpart H of 40
CFR part 264 or 265, this firm, as owner or operator or guarantor, is demonstrating financial
assurance for the closure or post-closure care of the following facilities through the use of a test
equivalent or substantially equivalent to the financial test specified in subpart H of 40 CFR parts
264 and 265. The current closure and/or post-closure cost estimates covered by such a test are
shown for each facility:
None.
4. This firm is the owner or operator of the following hazardous waste management facilities
for which financial assurance for closure or, if a disposal facility, post-closure care, is not
demonstrated either to EPA or a State through the financial test or any other financial assurance
mechanism specified in subpart H of 40 CFR parts 264 and 265 or equivalent or substantially
equivalent State mechanisms. The current closure and/or post-closure cost estimates not
covered by such financial assurance are shown for each facility:
None.
5. This firm is the owner or operator of the following UIC facilities for which financial
assurance for plugging and abandonment is required under part 144. The current closure cost
estimates as required by 40 CFR 144. 62 are shown for each facility:
Well EPAID Address of Well Cost
Name Number Estimate
S-1 Ml-101-5X16-1800 Eastlake Road, Manistee, Ml $120,000
06
S-2 Ml-101-5X16-1950 Eastlake Road, Manistee, Ml $120,000
05
S-6 Ml-101-5X16-1301 Eastlake Road, Manistee, Ml $120,000
04
S-10 Ml-101-5X16-2345 Caberfae Hwy. (M55), Manistee, Ml $120,000
03
S-11 Ml-101-5X16-Corner of Steinberg & Franklin Roads, $120,000
02 Manistee Ml
S-21 Ml-101-5X16-4700 Linke Road, Manistee, Ml $120,000
01
S-26 Ml-105-5X 16-9989 Quarterline Road, Freesoil, Ml $120,000
16
S-34 Ml-105-5X16-2161 Nurnberg Road, Freesoil, Ml $120,000
17
S-35 Ml-105-1I-0002 990 E. Hoa□ue Road, Freesoil, Ml $126,000
S-36 Ml-105-5X 16-10621 LaSalle Road, Manistee, Ml $120,000
15
S-39 Ml-105-5X 16-11152 Amber Road, Manistee, Ml $120,000
14
Total: $1,326,000
This firm is required to file a Form 10K with the Securities and Exchange Commission
(SEC) for the latest fiscal year.
• • •
The fiscal year of this firm ends on December 31. The figures for the following items marked
with an asterisk are derived from this firm's independently audited, year-end financial
statements for the latest completed fiscal year, ended December 31, 2007.
ALTERNATIVE I
1. Sum of current closure and post-closure cost estimate [total of all cost estimates shown
in the five paragraphs above]
$1,586,000
*2. Total liabilities [if any portion of the closure or post-closure cost estimates is included in
total liabilities; you may deduct the amount of that portion from this line and add that amount to
lines 3 and 4]
*3. Tangible net worth
*4. Net worth
*5. Current assets
*6. Current liabilities
7. Net working capital [line 5 minus line 6]
*8. The sum of net income plus depreciation, depletion, and amortization
*9. Total assets in U.S. (required only if less than 90% of firm's assets
are located in the U.S.)
10. Is line 3 at least $10 million? (Yes/No)
11. Is line 3 atleast 6 times line 1? (Yes/No)
12. Is line 7 at least 6 times line 1? (Yes/No)
$1,737,814,000
$ 361,898,000
$ 945,991,000
$626,010,000
$506,616,000
$ 119,394,000
$413,087,000
N/A
YES
YES
YES
*13. Are at least 90% of firm's assets located in the U.S.? If not, complete line 14
(Yes/No) YES
14. Is line 9 at least 6 times line 1? (Yes/No) N/A
15. Is line 2 divided by line 4 less than 2.0? (Yes/No) YES
16. Is line 8 divided by line 2 greater than 0.1? (Yes/No) YES
17. Is line 5 divided by line 6 greater than 1.5? (Yes/No) NO
ALTERNATIVE II
1. Sum of current closure and post-closure cost estimates [total of all cost estimates shown
in the five paragraphs above] $ --
2. Current bond rating of most recent issuance of this firm and name of rating service --
3. Date of issuance of bond ---
4. Date of maturity of bond ---
*5. Tangible net worth [if any portion of the closure and post-closure cost estimates is
included in "total liabilities" on your firm's financial statements, you may add the amount of that
portion to this line] $ ----
• • •
*6. Total assets in U.S. (required only if less than 90% of firm's assets are located in the
U.S.)$-----
7. Is line 5 at least $10 million? (Yes/No)-----
8. Is line 5 at least 6 times line 1? (Yes/No) ----
*9. Are at least 90% of firm's assets located in the U.S.? If not, complete line 1 O (Yes/No) --
10. Is line 6 at least 6 times line 1? (Yes/No)------
1 hereby certify that the wording of this letter is identical to the wording specified in 40 CFR
264. 151(() as such regulations were constituted on the date shown immediately below.
Signature ~ r/. ~~
Name: Anne H. Lloyd
Title: Senior Vice President, Chief Financial Officer and Treasurer
Date: March 28 2008
• •
March I 0, 2008
By Electronic Mail and Federal Express
Ms. Samantha Urquhart-Foster
Remedial Project Manager
U.S. Environmental Protection Agency
Region IV
61 Forsyth St., SW
Atlanta, GA 30303
•
WILMERHALE
Jeffrey J. Davidson
+ 1 202 663 6037 (tl
.. , 202 663 6363 m
[e-mail]
Re: Reasor Chemical Company Site, Castle Hayne, North Carolina; DOJ Case No. 90-11-3-
08268; EPA Site/Spill ID No. A424 -Updated Insurance Information
Dear Samantha:
We are providing updated insurance information in partial fulfillment of the requirements of
paragraph 60 of the October 2006 Consent Decree entered into by and among the United States
and Jane C. Sullivan, Hilda C. Dill, and Martin Marietta Materials, Inc. Additional documents
will soon be provided.
Please feel free to contact us with any questions.·
Best regards,
l'Vl,ttvVi . 'k-1}1/l~
Jeffrey /q;:dson
Marguerite E. Mclamb
Wilmer Cutler Pickering Hale and Dorr LLP
Counsel for Ms. Dill and Ms. Sullivan
Attachments
cc (by e-mail only): Ms. Hilda Dill
Mr. Scott Sullivan
Matthew Dill, Esq.
William White, Esq.
Yvonne Bailey, Esq.
Bonnie Sawyer, Esq.
Mr. David Mattison
Mr. Jeff Titus
Wilmer Curler Pickering Hale and Dorr LLI', 1875 Pennsylvania Avenue NW, Washington, DC 20006
8,sltO(D:(!5 6588':1~2 Berlin Boston Brussels London Munich New York Northern Virginia Oxford Palo Alto Waltham Washington
Clien.42853 APEXENV
ACORD .. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/D0/YYYY)
03/10/08
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Wachovia Insurance Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Skylight Office Tower HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
1660 West Second St, Ste 700
Cleveland, OH 44113 INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURER A: American International Specialty Lin 26883
Apex Companies, LLC INSURER B: Commerce and Industry Insurance Comp 19410
15850 Crabbs Branch Way, Ste 200 INSURERC: American Home Assurance Company 19380
Rockville, MD 20855 INSURER D: Hartford Fire Insurance Company 19682
INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LTR N TYPE OF INSURANCE POLICY NUMBER P_O.L.!~Y EFFECTIVE PQ~li:_r EXPIRATION LIMITS
A GENERAL LIABILITY PROP6712691 06/15/07 06/15/08 EACH OCCURRENCE ,1 000 000 -DAMAGE TO_RENTED L COMMERCIAL GENERAL LIABILITY ,100 000 -:] CLAIMS MADE [x] OCCUR MED EXP (Any one pe™>n) s5 000
L CPL• PERSONAL & ADV INJURY ,1 000 000
L CPL Ded F5,000 GENERAL AGGREGATE ,2 000 000
GEN'L AGGREGATE LIMIT APPLIES PER: *CPUContractors PRODUCTS~ COMP/OP AGG ,2 000 000 n POLICY ril ~~9;. n LOC Pollution Liab
D AUTOMOBILE LIABILITY 45UUNVU7840 06/15/07 06/15/08 COMBINED SINGLE LIMIT -,1,000,000 X ANY AUTO (Ea accident) -
All OWNED AUTOS BODILY INJURY -$
SCHEDULED AUTOS (Per Pfl™>n) -X HIRED AUTOS BOOIL Y INJURY -$ X NON-OWNED AUTOS (Per accident) -X Comp Ded $1 1000 PROPERTY DAMAGE -$ X Coll Dad $1,000 (Per accident) :=f GE UAB,LITY AUTO ONLY -EA ACCIDENT $
ANY AUTO OTHER THAN EAACC $
AUTO ONLY: AGG $
A ~ESS/UMBRELLA LIABILITY PROU6712692 06/15/07 06/15/08 EACH OCCURRENCE s5 000 000
• OCCUR □ CLAIMS MADE AGGREGATE s5.ooo.ooo
$
~ DEDUCTIBLE $
X RETENTION s $10 000 $
B WORKERS COMPENSATION AND WC3424570 03/21/07 03/21/08 X j _"J£:.~T-~!.!:!:. I IDJ!:1-
C EMPLOYERS' LIABILITY WC3424576CA 03/21/07 03/21/08 ,1.000.000 ANY PROPRIETOR/PARTNER/EXECUTIVE E.l. EACH ACCIDENT
OFFICER/MEMBER EXCLUDED? E.L. DISEASE • EA EMPLOYEE ,1.000.000
[~~~iit~R~Sis10Ns below E.L. DISEASE -POLICY LIMIT ,1 000 000
A OTHER $5,000,000 Each Claim
Professional Srvc EO 1956954 06/15/07 06/15/08 $5,000,000 Aggregate
Environmental Ins $75,000 deductible
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS
WilmerHale, Martin Marietta Materials, Inc., Jane. C. Sullivan, Hilda C.
(See Attached Descriptions)
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
WilmerHale DA.TE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MA.IL -3Q_ DAYS WRITTEN
1875 Pennsylvania Avenue NW NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
Washington, DC 20006 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS A.GENTS OR
REPRESENTATIVES.
AUTHOR~ED?J::.~VE 9 a,
ACORD 25 (2001/08) 1 of 3 #M1218398 KMC04 Ii> ACORD CORPORATION 1988
•! • • •
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
ACORD 25-S (2001108) 2 of 3 #M1218398
• • • DESCRIPTIONS (Continued from Page 1)
Dill and the United States of America are Included as additional insureds
under the captioned General Liability policy with respect to operations of
the named insured (case 7:06-cv-00154-FL).
Umbrella Liability provides additional limits over General Liability,
including Contractors Pollution Liability; Auto
Liability and Employers Liability.
AMS 25.3 (2001/08) 3 of 3 #M1218398
•
January 5, 2007
By Federal Express
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D Street, NW.
Washington, DC 20004
Lori Jonas, Esq.
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D Street, NW
Room 2121
Washington, DC 20004
Director, Waste Management Division
United States Environmental Protection Agency, Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
Ms. Samantha Urquhart-Foster
Remedial Project Manager
United States Environmental Protection Agency, Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
Ms. Paula V. Batchelor
Superfund Enforcement and Information Management Branch
United States Environmental Protection Agency, Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
•
WILMERHALE
Jeffrey J. Davidson
+ 1 202 663 6037 (t)
+ 1 202 663 6363 (f)
jeffrey.davidsonCwilmerhale.com
Re: Reasor Chemical Company Site, Castle Hayne. North Carolina: DOJ Case No. 90-11-3-
08268: EPA Site/Spill ID No. A424 -Notice of Payment
To all:
On behalf of Jane C. Sullivan, Hilda C. Dill, and Martin Marietta Materials, Inc. (collectively,
the "Settling Defendants"), we are providing notice of payment of $650,000, transmitted by wire
transfer today pursuant to requirements of paragraph 54(a) of the October 2006 Consent Decree
entered into by and among United States and the Settling Defendants. This notice is intended to
fulfill the requirements of paragraph 54(b) of that same Consent Decree.
Wilmer Cuder Pickering Hale and Dorr UP, 1875 Pennsylvania Avenue NW, Washington, DC 20006
Baltimore Beijing Berlin Boston Brussels London Munich New York Northern Virginia Oxford Palo Alto Waltham Washington
•
Page 2
Please feel free to contact us with any questions.
Best regards, =t:i-~r
Marguerite E. Mclamb
Wilmer Cutler Pickering Hale and Dorr LLP
Counsel for Ms. Dill and Ms. Sullivan
William A. White
Moore & Van Allen, PLLC
Counsel for Martin Marietta Materials, Inc.
cc (by E-mail only): Ms. Hilda Dill
USIOOCS 6006897vl
Ms. Jane Sullivan
Mr. Scott Sullivan
Matthew Dill, Esq.
Yvonne Bailey, Esq.
Bonnie Sawyer, Esq.
Mr. David Mattison
•
WILMERHALE
Ca.se 7:06-cvl154-FL Document 7 Filed 12/08,06
UNITED STATES DISTRICT COURT
Eastern District of North Carolina
UNITED STATES OF AMERICA,
Plaintiffs,
Page 1 of 1
V. Judgment in a Civil Case
Case Number: 7:06-CV-I54-FL
MARTIN MARIETTA MATERIALS, INC.,
JANE C. SULLIVAN and HILDA C. DILL,
Defendants.
X Decision by Court. This action came to trial or hearing before the Court. The issues have been
tried or heard and a decision has been rendered.
IT IS ORDERED, ADJUDGED AND DECREED that this consent decree and its appendices
constitute the final, complete, and exclusive agreement and understanding among the parties with
respect to the settlement emb_odied 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 this Consent Decree. 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
Steeling Defendants. The Court finds that there is not just reason for delay and therefore enters this
judgment as a final judgment under F.R.C.P. 54 and 58.
SO ORDERED: Louise W. Flanagan, Chief United States District Judge .
JUDGMENT FILED AND ENTERED THIS gm DAY OF DECEMBER 2006, AND COPIES
MAILED TO:
R. A. Renfer, Jr.
U.S. Attorney's Office.
310 New Bern Ave.
Suite 800
Raleigh, NC
December 8, 2006 MICHAEL BROOKS, ACTING CLERK
is/Donna Rudd
(by) Deputy Clerk
•
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 1 of 47
IN THE UNITED STA TES DISTRJCT COURT
FOR THE EASTIJRN DISTRJCT OF NORTil CAROLINA
SOUTHERN DIVISION
UNITED STATES OF
AMERICA
Plaintiff;
V.
Martin Marietta Materials,
Inc.; Jane C. Sullivan; and
Hilda C. Dill,
Defendants.
CIVIL ACTION NO. 7.'0fo-CV-/5L/-F l
RA CONSENT DECREE
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 2 of 47
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: (I) 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; and (2) performance of
studies and resl)Onse work by the defendants at the Site consistent with the National Contingency
Plan, 40 C.F.R. Part 300 (as amended) ("NCP").
C. In accordance with the NCP and Section 121(1)(1}{F) ofCERCLA, 42 U.S.C.
§ 962l(t)(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 122G)(l) ofCERCLA, 42 U.S.C. § 9622(j)(l), EPA
notified the Federal natural resource trustees on June 18, 2004, ofnegotiations with potentially
responsible parties regarding the release of hazardous substances that may have resulte,fin 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 complain~ 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 lo the
public health or welfare or the environment.
F. Pursuant to Section 105 ofCERCLA, 42 U.S.C. § 9605, EPA placed the Site on
the National Priorities List ("NPL"), 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/FS") for the Site pursuant to 40 C.F.R. § 300.430.
H. EPA completed a Remedial Investigation ("Rl'') Report in December 1999, and
EPA completed a Feasibility Study ("FS") Report in 2002.
I. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice of
the completion of the FS and of the proposed plan for remedial action 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 '-"PY 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 Sile is
embodied in a final Record of Decision ("ROD"), executed on September 26, 2002, on which the
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 3 of 47
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 I I 7(b) ofCERCLA.
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 I 13G) ofCERCLA, the Remedial Action
selected by the ROD and the Work to be performed by the Settling Defendants shall constitute a
response 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. JURJSDJCTION
I. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. §§ 133 I 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 complaints, 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 tenns of this Consent Decree or this Court's jurisdiction to enter and
enforce this Consent Decree.
III. PARTIES BOUND
........... ' ········"l,'-,
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.
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 written
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
2
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 4 of 47
Consent Decree, each contractor and subcontractor shall 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. DEFINmONS
4. Unless otheiwise expressly provided herein, terms used in this Consent Decree
which are defined in CERCLA or in regulations promulgated wider CERCLA shall have the
meaning assigned to them in CERCLA or in such regulations. Whenever tenns listed below arc
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 oftime 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 ofthis Consent Decree as provided in
Paragraph 106.
"EPA" shall mean the United States Environmental Protection Agency and any sue<:essor
departments or agencies of the United States.
"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 otheiwisc implementing,
overseeing, or enforcing this Consent Decree, including, but not limited to, payroll costs,
contractor costs, travel costs, laboratccy 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 88 of Section XXI. Future Response Costs shall exclude
all costs incurred by EPA related to the ROD Amendment.
"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 l 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 I ofeachyear. · 1"'"-'· .,,. .t 1''1'1s... ,, .. ,,_i,ig
''National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section I 05 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 sue<:eSsor departments or agencies of the State.
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 5 of 47
"Operation and Maintenance" or "O & M" shall mean all activities required to maintain
the effectiveness of the Remedial Action as required under the Remedial Action Work Plan und
the Perfonnance Standards Verification 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 C. Dill and Jane
C. 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 (a) paid at or in connection with the Site through the
Effective Date of this Consent Decree, and (b) paid or will pay in connection with the ROD
Amendment.
"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, the
ROD Amendment as applicable, and Task Ill of Section IV of the SOW.
"Plaintiff' shall mean the United States.
''RCRA" shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901 el
seq. (also known as the Resource Conservation and Recovery Act).
"Record of Decision" 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, all attachments thereto, and any amendments thereto, including the ROD Amendment.
The ROD signed on September 26, 2002, is attached as Appendix A.
"ROD Amendment" shall mean the EPA Record of Decision amendment or other fonn of
modification to the ROD that remov.es the groundwater contingency remedy of extraction and
treatment using constructed wetlands from the scope of.R~medial ,A,c#qp,,allows for .tre.lbJleQt.of
the low pH conditions surrounding the drum disposal area as part of the Remedial Action, and
provides the option to use onsite treatment and disposal for surface water from the ponds as part
of the Remedial Action. Upon signing by EPA, the ROD Amendment will be incorporated into
this Con.sent Decree.
"Remedial Action" shall, for purposes of this Consent Decree, mean those activities,
except for the groundwater contingency remedy of extraction and treatment using constructed
wetlands, to be undertaken by the Settling Defendants to implement the ROD, as hereinafier
amended. in accordance with the SOW and the ftnal Remedial Design and Remedial Action
Work Plans and other plans approved by EPA. For purposes of this Consent Decree; the· ·
Remedial Action may include the use of onsite treatment and disposal of surface water in lieu of
sending surface water offsite for treatment and disposal.
"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.
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"Remedial Design" shall mean the Remedial Design relating to the Site completed on
January 30, 2004. The Remedial Design is attached as Appendix B. .
"Section" shall mean a portion of this Consent Decree identified by a Roman numeral.
"Settling Defendants" shall mean Martin Marietta Materials, Inc. (including its
subsidiaries, successors and predecessors in interest), Lockheed Martin Co'l'oralion (including
its subsidiaries, successors and predecessors in interest), Jane C. Sullivan and Hilda C. Dill.
"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 D 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 Stales of America.
"Waste Material" shall mean {I) any "hazardous substance" under Section IO I (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).
"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'entefing 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 Plaintifl; and to resolve the claims of Plaintiff against Sealing Defendants as
provided in this Consent Decree.
6. Commitments by Settling Defendants
a. Settling Defendants shall finance and perform the Work in accordance
with this Consent Decree, the ROD, the SO,W, an~_all \\'9f,l\,P(all.ll,!\'!~,R~Cf.PlanS.,~~ds,
specificalions, 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
5
• _ ___,.,__ ____ _ Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 7 of 47
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 slate
environmental laws as set forth in the ROD and the SOW. The activities conducted pursuant to
this Consent Docree, if approved by EPA, shall be considered to be consistent with the NCP.
8. l'mD.il.:i
a. As provided in Section 121(e) ofCERCLA 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 implementalion of the Work). Where any portion of the Work that is not on-site
requires a federal or stale permit or approval, Settling Defendants shall submit timely and
complete applications and take all other actions necessary lo obtain all such permits or approvals.
b. The Settling Defendants may seek relief under the provisions of Section
XVIII (Foru Majeure) of this Consent Decree for any delay in the performance of the Work
resulting from a failure to obtain, or a delay in obtaining, any permit required for the Work.
c. This Consent Decree is not, and shall not be construed to be, a permit
issued pursuant to any federal or state statute or regulation.
9. Notice to Successors-in-Title
a. With respect to any property owned or controlled by the Owner Settling
Defendants that is located within the Site, within 15 days after the entry ofthis Consent Decree,
the Owner Settling Defendants 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 ofNorth 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 Defendants shall record the notice(s) within IO days ofEP A's approval of
the notice(s). The Owner Settling Defendants shall provide EPA with a certified copy of the
recorded noticc(s) within 10 days of recording such notice(s),,,, •·1 111~ ,, u11~ 111,1, ,., 1,v, ,..,, .,,, ..
b. Al least 30 days prior to tbe 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 Defendants 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 properly has been conveyed that confers a right to enforce
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• • Case 7:06-cv-00154-FL Document 6 i=iled 12/08/2006 Page 8 of 47
restrictions on the use of such property (hereinafter refemxl to as "restrictive easements")
pursuant to Section IX (Access and Institutional Controls). At least 30 days prior to such
conveyance, the Owner Settling Defendants conveying tbe interest shall also give written notice
to EPA and the State of the proposed conveyance, including the name and address of the grantee,
and tbe da1e 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 Defendants. In no event shall the conveyance release or
otherwise affect the liability of the Owner Settling Defendants 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 11!E WORK BY SETTLING DEFENDANTS
IO. Selection ofSuperyisjng 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. No later than 10 days after the
lodging of this Consent Decree, Settling Defendants shall notify EPA in writing of the name,
tille, and qualifications of the contractor proposed to be the Supervising Contractor. With
respect to any contractor proposed to be Supervising Contractor, Settling Defendants shall
demonstrate that the 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 Tecbnotogy Programs," (American National Standard, January S, 1995), by
submitting a copy of the proposed.contractor's Quality Management Plan (QMP). The QMP
should be prepared in accordance with "EPA Requin:ments for Quality Management Plans
(QNR,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 authori.,ation to.proceed from EPA before the
new Supervising Contractor performs, directs, or supervises any Work under this Consent
Decree.
b. lfEPA 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 ofEPA's disapproval of the contractor pn:viously proposed. EPA will provide written
notice of the names of any contractor(s) that it disapproves and an authorization to proceed with
n:spect 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 authorii.ation to proceed.
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 9 of 47
_ c. If EPA fails to provide written notice of its authorization to pro=d 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 pursuant to this Consent Decree
Settling Defendants may seek relief under the provisions of Section XVIII (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, as described in the definition of Remedial Action in Paragraph 4 of this Consent
Decree, and achievement of the related Performance Standards, in accordance with this Consent
Decree, 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 tho Remedlal Action Work Plan which
conforms to the applicable Occupational Safety and Health Administration and EPA
requirements including, but not limited to, 29 C.F .R. § 1910.120.
b. '!be Remedial Action Work PIM shall include the following: (I) schedule
for completion of the Remedial Action; (2) schedule for developing and submitting other
required Remedial Action plans; (3) grouodwater monitoring plan, which certain portions of the
Performance Standards Verification Plan will also address; (4) methods for satisfying permitting
requirements; (5) tentative formulation of the Remedial Action team; and (6) procedures and
plans for the decontamination of equipment and the disposal of contaminated materials. The
Remedial Action Work Plan also shall include tho 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, submittals, or other deliverables required
~der the approved Remedial Action Work Plan in accorWl!)~e wi~.1/1-~. appr~~ed sch_eq/!l~_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 al the Site prior to approval of the Remedial Action Work Plan.
12. The Settling Defendants shall continue to implement the Remedial Action until
the Performance Standards are achieved and for so long thereafter as is otherwise required under
this Consent Decree. Notwithstanding the preceding sentence, Settling Defendants shall
maintain any restriction recorded pursuant to Section IX pursuant to the provisions of that
Section.
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 10 of 47
C
13. Modification of the SOW or Related Work Plans
a If EPA detennines that modification to the work specified in the SOW
and/or in work plans developed pursuant to the SOW is nccessa,y to achieve and maintain the
Performance Standards or to carry out and maintain the effectiveness of the remedy set furth 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 ROD
Amendment and shall not include the groundwater contingency remedy of extraction and
treatment using constructed wetlands.
b. For purposes of this Paragraph and Paragraph 51 only, the "scope of the
remedy selected in the ROD and ROD Amendment" is to accomplish the following at the Site:
(1) Construction and implementation of the remedy for soil and sediment
set forth in the ROD and Remedial Design and achievement of related Performance
Standards;
(2) Treatment of surface water, as identified in the ROD, through onsite
treatment and, upon achievement of related i'erfonnance Standards, onsite disposal;
(3) Re-vegetation of remediated areas with native plants;
(4) Allowing remediated onsite ponds to refill;
(5) Placing oflimestone or a similar alkaline substance in the rcmediated
area in the vicinity of monitoring wells 7S and 7D prior to any backfilling;
(6) Field sampling of the pH in the vicinity of monitoring we Us 7S and
ID· ' • .,,., , •' 1 • • :1, 1111·1 .. .. .. , ,. , ..• , ·
(7) If pH is between 7 .2 and 8.5, collection of a non-turbid sample from
monitoring wells 7S and 7D and analysis of such sample for aluminum;
(8) Collection of a non-turbid samples only from monitoring wells 7S and
7D four years after construction of the Remedial Action, and analysis of such sample for
pH and aluminum; and
(9) Placing restrictions on property indicating that the growidwater is
contaminated with inorganic compounds, subject to conditions set forth in Section IX of
this Consent Decree.
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),
Paragraph 68 (record review). The SOW and/or related work plans shall be modified in
accordance with final resolution of the dispute.
c. Settling Defendants sh~ll 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.
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• Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 11 of 47
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 shipmonts will not exceed
IO cubic yards.
(I) The Settling Defendants shall include in the written notification
the following information, where available: (1) the name and location of the facility to which the
Waste Material is lo 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 stale.
(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 r=iving facility is operating in compliance with the requirements of CERCLA
Section l2 l(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.
Vil. REMEDY REVIEW
16. Periodic Review Settling Defendants shall conduct any studies and investigations
as requested by EPA. in order to permit EPA to conduct' a review pursuant lo Section 12l(c) of
CERCLA of whether the Remedial Action is protective of human health and the environment
five years after construction of the Remedial Action. Further reviews may be conducted by EPA
if required by Soction 12l(c) ofCERCLA and any applicable regulations.
17. EPA Selection ofFurthcr Response Actions lfEPA determines, at any time, that
the Remedial Action is not protective of human health and the environment. EPA may select
further response actions for the Site, consistent with the definition of Remedial Action in this
Consent Decree, in accordance with the requirements ofCERCLA and the NCP.
18. Opportunity To Comment Settling Defendants and, lfreq~ired by Sections
1 I 3(k)(2) or 117 ofCERCLA, the public, will be provided with an opportunity to comment on
10
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 12 of 47
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' Obligatjon To Perform Further Response Actions IfEPA
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 (I) EPA's determination that the
Remedial Action is not protective of human health and the environment, or (2) EPA's selection
of the further response actions. Disputes penaining to the whether the Remedial Action is
.Protective or to EPA's selection of further response actions shall be resolved pursuant to
Paragraph 68 (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. 0UALl1'l ASSURANCE, SAMPLINO, 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/R5)" (EP A/240/B-0 11003,
March 200 I) "Guidance for Quality Assurance Project Plans (QA/G-5)" (EP A/600/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 Quality Assurance
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 utiliud
by Settling Defendants in implementing this Consent Decree. In addition, Settling Defendants
shall ensure that such laboratories shall analyze all samples submiUed 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 Stalement 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 Slatement of Work for Analysis of Low
Concentration Organic," (OLC03/2), December 2000, and any amendments made thereto during
the course of the implementation of this Decree; however, upon approval by EPA, the Settling
Defendants may use other analytical methods which are as stringent as o.r more stringent than the
CLP-approved methods. Settling Defendants shall ensure that all laboratories they use for
11
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 13 of 47
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 ANSUASQC E4-l 994, "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 (QAIR.-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 ACCR<iitation 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 will 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 rigbt 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 wilcss EPA agrees
otherwise.
24. Notwithstanding w,y provision of this Consent becice;tlie United States hereby
retains all of its information gathering w,d inspection authorities w,d rights, including
enforcement actions related thereto, under CERCLA, RCRA and any other applicable statutes or
regulations.
IX. ACCESS AND !NSTITIJTIONAL CONTROLS
25. If the Site, or w,y other property where access and/or lw,d/water use restrictions
arc 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 represenlatives, including EPA and its contractors, with access at all
reasonable times to the Site, or such other property, for the purpose of conducting w,y activity
related to this Consent Decree including, but not limited to, the following activities:
(I) Monitoring the Work;
(2) Verifying any data or information submitted to the United Slates;
(3) Conducting investigations relating to conlamination at or near the Site;
(4) Obtaining samples; :· .. · ... ,, . . .
(5) Assessing the need for, planning, or implementing additional response
actions at or near the Site;
12
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 14 of47
--------· ---···
(6) Assessing implementation of quality assurance and quality control
practices as defined in the approved Quality Assurance Project Plans;
· (7) Implementing the Work pursuant to the conditions set fonh in
Paragraph 88 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 oflodging 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 refrain from the following until the cleanup standards, set
forth in Section 2.12.4.2 of the ROD, are achieved:
(I) refrain from using groundwater from the surficial aquifer;
(2) refrain from using groundwater from below the confining layer for
potable purposes;
(3) refrain from installing any gro\11\dwater ':"~l\.or other.device for
access to groundwater from the surficial aquifer for any purpose other than
monitoring groundwater quality; and
(4) refrain from installing any groundwater well or other device for
access to groundwater from below the confining layer without an isolation
seal between the surficial aquifer and the Peedee Formation aquifer.
c. Within 30 days of the Effective Date of this CD, submit to EPA for
approval a Declaration of Permanent Land Use Restrictions (DPLUR) that will run with the land,
and (i) grants a right of access for the purpose of conducting any ac~vity ~lated 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 groundwater restrictions listed in Paragraph 25.b ,
(I) through (4) of this Consent Decree. Such Settling Defatdants 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) NCDENR, and its
representatives, (iii) the other Settling Defendants and their representatives, and/or (iv) other
appropriate grantees. Within 30 days of receiving approval from EPA with respect to the
Declaration, Sealing Defendants shall execute and record the approved Declaration in the
Recorder's Office, Registry of Deeds or other appropriate land records office of New Hanover
County, State ofNorth Carolina. · · ·• ...... · · "'•" ... u .. , ,,, .•• , lh.., : ... J., 1 , ... , ... """ •·-' •
d. Concurrently with submitting the DPLUR under Paragraph 25.c., submit
to EPA a current title insurance commitment or some other evidence of title acceptable to EPA,
13
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• • Case 7:06-cv-00154-FL Document 6 "Filed 12/08/2006 Page 15 of 47
which shows title to the land described in the deed restriction 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 encwnbrances).
26. Within 30 days of recording the deed restrictions, provide EPA with a final title
insurance policy, or other final evidence of title a<:ceptable to EPA, and a certified copy of the
original recorded deed restriction showing the clerk's recording stamps.
27. Upon achievement of the cleanup standards set forth in Section 2.12.4.2 of the
ROD, and as measured in accordance with the SOW, the groundwater restrictions recorded as
discussed above in Paragraph 25.c. will no longer be required.
28. lfEPA determines that land/water use restrictions in the form of slate or local
laws, regulations, ordinances or other governmental controls are needed to implement the
remedy selected in the ROD, ensure lhe integrity and protectiveness thereat; or ensure non-
interference therewith, Settling DefendanLs 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 Siates retains
all of its a<:cess aulhoritics and rights, as well as all of its right to require land/water use
restrictions, iucluding enforcement authorities related thereto, under CERCLA, RCRA and any
olher applicable statute or regulations.
X. REPORTING REoulREMWJll .. . . .: . .'.
30. In addition to any olher requirement of this Consent Decree, Settling Defendants
shall submit to EPA and the Stale written monlhly progress reports that: (a) describe lhe 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
received or generated by Settling Defendants or their conll'llctors or agents in the previous
month; (c) identify all work plans, plans and otl1er 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 ofworl< plans, which are sqhcdulcd for the next
six weeks and provide other information relating to the progress of construction, including, but
not limited to, critical pat!, diagrams, Gantt charts and Pert charts; (e) include information
regarding percentage of completion, unresolved delays encountered or anticipated that may
aliect the future schedule for implementalion of the Work, and a description of efforts made to
mitigate those delays or anticipated delays; (f) include any modifications 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 progiess 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 5 I .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.
14
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• --•,------Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 16 of 47
. 31. The Settling Defendants shall notify EPA ofany change in the schedule described
m 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
perfonnance of the activity.
32. Upon the occurreoce·ofany event during performance of the Work that Settling
.Defendants are required to report pursuant to Section 103 ofCERCLA 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
Aitemate 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 I 03 or EPCRA Section 304.
33. Within 20 days of the onset of such an even~ SettlingDefondants 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 fonn 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 tenns of this Consent Decree shall be signed by an authorized
representative of the Settling Defendants.
XI. EPA APPROVAL OF PLANS AND OrnERSUBMISStONS
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 Defendant, 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 deficiencies in the submission under consider-•tion 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, repo~ 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}
15
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 17 of 47
with respect to the modifications o;conditions made by EPA. In the eveni 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 provided 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 ofEPA, to take any action
required by any non-deficient portion of the submission. Implementation of any non-deficient
portion ofa submission shall not relieve Settling Defendants of any liability for stipulated
penalties under Section XX (Stipulated Penaliies).
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 or modified by EPA
due to a material defed, 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 XlX (Dispute Resolution) and
Section XX (Stipulated Penalties) shall govern the implementation of the Work and accrual and
payment of any stipulated penalties during Dispute Resolution. IfEPA'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.
4 I. All plans, reports, and other items required to be submitted lo EPA under this
Consent Decree shall, upon approval or modification by EPA, be enforceable under this Consent
Decree. In the event EPA approves or modifies a portion of a plan, report, or other item required
to be submitted to EPA under this Consent Decree, the approved or modified portion shall be
enforceable under this Consent Decree.
XII. PROIECTCOORDINATORS
42. Within 20 days oflodging this Consent Dec,ec:·setiiuig Deferidant/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,
16
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bul in ~o event later than lhe actual day the change is made. The Seltling Defendants' Project
Coordinator shall be subject to disapproval by EPA and shall have the technical expertise
suffici~nt to adequately-oversee all aspects of the Work. The Settling Defendants' Project
Coordinator shall nol be an attorney for any oflhe SctUing 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 lhe progress of any
activity undertaken pursuant to this Consent Decree. EPA's Project Coordinator and Alternate
Project Coordinator shall have the authority lawfully vested in a Remedial Project Manager
(RPM) and an On-Scene Coordinator (OSC) by the National Contingency Plan, 40 C.F.R. Part
300. In addition, EPA's Project Coordinator or Alternate Project Coordinator shall have
aulhority, consistent wilh the National Contingency Plan, to halt any Work required by this
Consent Decree and to take any necessary response action when s/he detennines that conditions
at the Site constitute an emergency situation or may present an immediate threat lo public hcallh
or welfare or the envirorunent 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. PERFORMANCE GUARANTEE
45. In order to ensure the full and final completion of the Work, Settling Defendants
shall establish and maintain a Performance Guarantee for the benefit of EPA in the amount of
$1,000,000 (hereinafter "Estimated Cost of the Work") in one or more of the following fonns,
which must be satisfactory in fonn and substance to EPA:
a. A surety bond unconditionally guaranteeing payment and/or performance
oflhe Work that is issued by a surety company among those listed as acceptable sureties on
Federal bonds as set forth in Circular 570 of the U.S. Department of the Treasury;
b. One or more im,vocable letters of credit, payable to or at the direction of
EPA, lhat is issued by one or more financial institulion(s) (i) that has the authority to issue letters
of cn:<lit and (ii) whose letter-of-credit operations are regulated and examined by a U.S. Federal
or State agency;
c. A trust fund established for the benefit ofEPA that is administered by a
trustee (i) that has the authority to act as a trustee and (ii) whose trust operations are regulated
and examined by a U.S. Federal or Stale agency;
d. A policy of insurance lhat (i) provides EPA with acceptable rights as a
beneficiary thereof; and (ii) is issued by an insurance carrier (a) that has the authority to issue
insurance policies in the applicable jurisdiction(s) and (b) whose insurance operations are
rcgulatedandexaminedbyaStatcagency;"'' "· -·"···~ ud\..,,y .. ,t,.)' ;-•,'-'i1-'-•' · , ............ , ... ""1
e. A demonstration by on.e or more Settling Defendants that each such
Settling Defendant meets the financial test criteria of 40 C.F .R. § 264.143(!) with respect to the
Estimated Cost of the Work, provided that all otherrequirements of 40 C.F.R. § 264.143(!) are
satisfied; or
17
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 19 of 47
f. A written guarantee to fund or perform the Work executed in favor of
EPA by one or more .of the following: (i) a direct or indirect·parent company of a Settling
Defendant, or (u) a co~pany that has a "substantial business relationship" (as defined in 40
C.F.R._ § 264.14 l(h)) with at least one Settling Defendant; provided, however, that any company
prov1dmg such a guarantee must demonstrate to the satisfaction of EPA that it satisfies the
financial test requirements of 40 C.F .R. § 264.143(1) with respect to the Estimated Cost of the
Work that it proposes to gua,antee hereunder.
46. Settling Defendants have selected as an initial Performance Guarantee a
demonstration of satisfaction of financial test criteria pursuant to Paragraph 45(e) with respect to
Martin Marietta Materials, Inc. Prior to entry of this Consent Decree, Martin Marietta Materials,
Inc. will provide the required demonstration to EPA for review and approval.
47. If at any time during the effective period of this Consent Decree, the Settling
Defendants provide a Performance Guarantee for completion of the Work by means of a
demonstration or guarantee pursuant to Paragraph 45(e) or Paragraph 45(1) above, such Settling
Defendant shall also comply with the·other relevant requirements of 40 C.F.R. § 264.143(1). 40
C.F.R. § 264.151(1), and 40 C.F.R. § 264.15l(h)(l) relating to these methods unless otherwise
provided in this Consent Decree, including but not limited to (i) the initial submission of required
finar,cial reports and statements from the relevant entity's chieffmancial officer and independent
certified public accountant; (ii) the annual re-submission of such reports and statements within
ninety days after the close of each such entity's fiscal yea,; and (iii) the notification of EPA
within ninety days after the close of any fiscal yea, in which such entity no longer satisfies the
financial test requirements set forth at 40 C.F.R. § 264.143(1)(1). For purposes of the
Performance Guarantee methods specified in this Section XIII, references in 40 C.F.R. Part 264,
Subpart H, to "closure," "post-closure," and "plugging and abandonment" shall be deemed to
refer to the Work required under this Consent Decree, and the tenns "current closure cost
estimate" "current post-closure cost estimate," and "current plugging and abandonment cost
estimate" shall be deemed to refer to the Estimated Cost of the Work.
48. In the event that EPA determines at any time that a Performance Guarantee
provided by any Settling Defendant pursuant to this Section is inadequate or otherwise no longer
saiisfies the requirements set forth in this Section, whethei•aue to' an' increase' in the estimated
cost of completing the Work or for any other reason, or in the event that any Settling Defendant
becomes aware of information indicating that a Performance Guarantee provided pursuant to this
Section is inadequate or otherwise no longer satisfies the requirements set forth in this Section.
whether due to an increase in the estimated cost of completing the Work or for any other reason.
Settling Defendants, within thirty days of receipt of notice ofEPA's determination or, as the case
may be, within thirty days of any Settling Defendant becoming awue of such information, shall
obtain and present to EPA for approval a proposal for a revised or alternative form of
Performance Guarantee listed in Pa,agraph 45 of this Consent D= .that satisfies all
requirements set forth in this Section Xlll. In seeking approval for a revised' or alternative form '
of Performance Gua,antee, Settling Defendants shall follow the procedures set forth in Paragraph
50(b)(2) of this Consent Decree. Settling Defendants' inability to post a Performance Guarantee
for completion of the Work shall in no way excuse performance of any other requirements of this
Consent Decree, including, without limitation, the obligation of Settling Defendants to complete
the Work in strict accordance with the terms hereof.
18
• --•--------Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 20 of 47
49. The commencement of any Work Takeover pursuant to Paragraph 88 of this
Consent Decree shall trigger EPA's right to receive the benefit of any Performance Guarantee(s)
provided pursuant to Paragraph 45(a), (b}, (c), {d), or {I), and at such time EPA shall have
immediate access lo resources guaranteed under any such Performance Guarantee(s), whether in
cash or in kind, as needed to continue and complete the Work asswned by EPA under the Work
Takeover. If for any reason EPA is unable to prompdy secure the resources guaranteed under
any such Performance Guarantee(s), whether in cash or in kind, necessary to continue and
complete the Work assumed by EPA under the Work Takeover, or in the event that the
Performance Guarantee involves a demonstration of satisfuction of the financial test criteria
pursuant to Paragraph 45{e), Settling Defendants shall immediately upon written demand from
EPA deposit into an account specified by EPA, in immediately available funds and without
setof!; counterclaim, or condition of any kind, a cash amount up to but not exceeding the
estimated cost of the remaining Work to be performed as of such date, as determined by EPA.
50. Modification of Amount and/or Form of Performance Guarantee.
a. Reduction of Amount of Performance Guarantee. If Settling
Defendants believe that the estimated cost to complete the remaining Work has diminished
below the amount set forth in Paragraph 45 above, Settling Defendants may, on any wmiversary
date of entry of this Consent Decree, or at any other time agreed to by the Parties, petition EPA
in writing to request a reduction ln the amount of the Performance Guarantee provided pursuant
10 1his Section so that the amount of the Performance Guarantee is equal to the estimated cost of
1he remaining Work to be performed. Settling Defendants shall submit a written proposal for
such reduction to EPA that shall specify, at a minimum, the cost of the remaining Work to be
performed and the basis upon which such cost was calculated. In seeking approval for a revised
or alternative form of Performance Guarantee, Settling Defendants shall follow the procedures
set forth in Paragraph 50(b}(2} of this Consent Decree. If EPA decides to accept such a proposal,
EPA shall notify the petitioning Settling Defendan1s of such decision in writing. After receiving
EPA's written acceptance, Settling Defendants may reduce the amount of the Performance
Guarantee in accordance wi1h and to the extent permitted by such writtc:n acceptance. In the
event of a dispute, Settling Defendants may_reduce the amo~t oftl!~ f,erfollllance_Quarantee
required hereunder only in accordance with a final administrative or judicial decision resolving
such dispute. No change to the form or terms of any Performance Guarantee provided under this
Section, other than a reduction in amount, is authorized except as provided in Paragraphs 48 or
SO(b) of this Consent Decree.
b. Change ofFonn of Performance Guarantee
(I) 11; after entry of this Consent Decree, Settling Defendants desire
to change the fonn or terms of any Performance Guaran1ee(s} provided pursuant to this Section,
Settling Defendants may, on any anniversary date of entry_ofthis Conseqt Decree, or at any other
time agreed to by the Parties, petition EPA in writing t<i'request a cliiuigc 'in 'tlic foim of !lie
Performance Guarantee provided hereunder. The submission of such proposed revised or
alternative form of Performance Guarantee shall be as provided in Paragraph 50(b}{2) of this
Consent Decree. Any decision made by EPA on a petition submitted under this subparagraph
(b)(I) shall be made in EPA's sole and unreviewable discretion, and such decision shall not be
subject to challenge by Settling Defendants pursuan11o 1he dispute resolution provisions of this
Consent Decree or in any other forum.
19
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 21 of 47
(2) Settling Defendants shall submit a written proposal for a revised
or alternative form of Performance Guarantee to EPA which shall specify, at a minimum, the
estimated cost of the remaining Work to be performed, the basis upon which sueb cost was·
calculated, and the proposed revised form of Performance Guarantee, including all proposed
instruments or other documents required in order to make the proposed Performance Guarantee
legally binding. The proposed revised or alternative form of Performance Guarantee must satisfy
all requirements set forth or incorporated by reference in this Section. Settling Defendants shall
submit such proposed revised or alternative form of Performance Guarantee to the EPA Regional
Financial Management Officer in accordance with Section XXVI ("Notices and Submissions")
of this Co_nsent Decree. EPA shall notify Settling Defendants in writing of its decision to accept
or reject a revised or alternative Performance Guarantee submitted pursuant to this subparagraph.
Within ten days after receiving a written dccisioa approving the proposed revised or alternative
Performance Guarantee, Settling Defendants shall execute and/or-otherwise finalize all
instruments or other documents required in order to make the selected Performance Guarantee(s)
legally binding in a form substantially identical to the documents submitted to EPA as part of the
proposal, and such Perfonnance Guarantce(s) shall thereupon be fully effective. Settling
Defendants shall submit all executed and/or otherwise finalized instruments or other documents
required in order to make the selected Performance Guarantee(s) legally binding to the EPA
Regional Financial Management Officer within thirty days of receiving a written decision
approving the proposed revised or alternative Perfonnance Guarantee in accordance with Section
XXVI ("Notices and Submissions") of this Consent Decree and to the United States and EPA
[and the State] as specified in Section XXVI.
c. Release of Performance Guarantee. If Settling Defendants receive
written notice from EPA in accordance with Paragraph SI hereof that the Work has been fully
and finally completed in accordance with the terms of this Consent Decree, or if EPA otherwise
so notifies Settling Defendants in writing, Settling Defendants may thereafter release, cancel, or
discontinue the Performance Guarantee(s) provided pursuant to this Scctioa. Settling Defendants
shall not release, cancel, or discontinue any Performance Guarantee provided pursuant to this
Section except as provided in this subparagraph. In the event of a dispute, Settling Defendants.
may release, cancel, or discontinue the Performance Guaraotec(s) required hereunder only in
accordance with a final administrative or judicial decision resolving such dispute.
XIV. CERTIFICATION OF COMPLETION
SI. Completion of the Remedial Action
a. Within 90 days after Settling Defendants conclude that the Remedial
Action has been fully performed and the Performance Standards have been attained, Settling
Defendants shall schedule and conduct a pre-<:enification inspection to be attended by Settling
Defendants, EPA. and the State, subject to the provisions set forth in Section IV, Task II,
subsection C of the SOW. If, after the pre-<:ertification inspection, the Settling Defendants still
believe that the Remedial Action has been fully performed and the Performance Standards have
been attained, they shall submit a written report requesting cenification to EPA for approval,
with a copy to the State, pursuant to Section XI (EPA Approval of Plans and Other Submissions)
within 30 days ofche inspection. In the report, a registered professional engineer and the Settling
Defendants' Project Coordinator shall state that the Remedial Action has been completed in full
satisfaction of the requirements of this Consent Decree. The written report shall include any
20
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 22 of 47
drawings required to be included in the Final Construction Report wider the SOW. The report
shall contain the following statement, signed by a responsible corporate official of a Settling
Defendant or the Settling Defendants' Project Coordinator:
To the best of my knowledge, after thorough investigation, I certify that the information
contained in or accompanying this submission is true, accurate and complete. I am aware
that there are significant penalties for submitting false infonnation, including the
possibility of fine and imprisonment for knowing violations.
If, after completion of the pre-certification inspection and receipt and review of the written
report, EPA, after reasonable opportwtity to review and comment by the State, determines that
the Remedial Action or any portion thereof has not been completed in accordance with this
Consent Decree or that the Performance Standards have not been achieved, EPA will notify
Settling Defendants in writing of the activities that must be wtdertaken by Settling Defendants
pursuant to this Consent Decree to complete the Remedial Action and achieve the Performance
Standards, provided, however, that EPA may only require Settling Defendants to perform such
activities pursuant to this Paragraph to the extent that such activities are consistent with the
"scope of the remedy selected in the ROD and ROD Amendment," as that term is defined in
Paragraph 13.b. EPA will set forth in tlie 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
Subinissions). Settling Defendants sha[l perform all activities described in the notice in
accordance with the specif"ications and schedules established pursuant to this Paragraph, subject
lo their right to invoke the dispute resolution procedures set forth in Section XlX (Dispute
Resolution).
b. IfEPA concludes, based on the initial or any subsequent report requesting
Certification of Completion and after a reascnable opportwtity for review and comment by the
State, that the Remedial Action has been performed in accordance with this Consent Decree and
that the Performance Standards have been achieved, EPA will so certify in writing to Settling
Defendants. This certification shall constitute the Certification of Completion of the Remedial
Action for purposes of this Consent Decree, including, but not limited to, Section XXI
(Covenants Not to Sue by Plaintiff). Certification of Completion of the Remedial Action shall
not affect Settling Defendants' obligations under this Consent Decree.
c. If EPA concludes that the Work has been performed in accordance with
this Consent Decree, EPA will so notify the Settling Defendants in WT~.'. . ,.
d. lfEPA concludes that the Site has reached the Site Completion milestone,
as defined in "Close Out Procedures for National Priorities List Sites," EPA 540-R-98-016,
OSWER Directive 9320.2-09A-P, PB98-963223, January 2000, it will commence the process to
delete the Site frori. the NPL. If appropriate, EPA will proceed to delete the Site from the NPL
using the Direct Final Process for Deletions and Partial Deletions.
21
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• Case 7:06-cv-00 154-FL Document 6 Filed 12/08/2006 Page 23 of 4 7
XV. EMERGENCY RESPONSE
52. In the event of any action or occurrence during the performance of the Work
which causes or threatens a release of Waste Material from the Site that constitutes an
emergency situation or may present an immediate threat to public health or welfare or the
environment, Settling Defendants shall, subject to Paragraph 53, 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. lo 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 pur.;uant to Section XVl
(Payments for Response Costs).
53. 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
rel<ase of Waste Material on, at, or from the Site, orb) to direct or order such action, or seek an
order from the Court, to protect human health and the environment or to prevent, abate, respond
to, or minimize an actual or threatened release of Waste Material on, at, or from the Site, subject
to Section XXI (Covenants Not to Sue by Plaintiff).
XVI. PAYMENTS FOR REsPONSE COSTS
54. Payments for Past Response Costs
a. Within 30 days of the Effective Date, Settling Defendants shall pay to
the EPA Hazardous Substance Superfund a one-time payment of$650,0Q0 in .-eimbuniemenl of
Past Response Costs. Payment shall be made by Fed Wire Electronic Funds Transfer ("EFf") to
the U.S. Department of Justice account in accordance with current EFT procedures, referencing
EPA Site/Spill ID Number A424, and DO) Case Number 90-11-3-08268. 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. AL the time of payment, Settling Defendants $hall .~nd 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 54.a shall be deposited in the EPA Hazardous Substance Supcrfund.
55. 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
Settling Defendants a bill requiring payment that includes a SCORPIOS report. Settling ·
••I , . ' 22'"' , .. ~.I, I "'· I",
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 24 of 47
Defendants shall make all payments within 30 days of Settling Defendants' receipt of each ·bill
requiring payment, except as otherwise providoo in Paragraph 56. Settling Defendants shall
make all payments required by this Paragraph by a certified or cashier's check or checks made
payable to "EPA Hazardous Subslance Superfund,'' referencing the name and address of the
party making the payment, USAO File Number 2006V0649, EPA Site/Spill ID Number A424,
and DOJ Case Number 90-11-3-08268. Settling Defendants shall send the check(s) to:
Superfund Collection 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, Supcrfund Enforcement and
lnfonnation 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.
56. Settling Defendants may contest payment of any Future Response Costs under
Paragraph SS if they detennine 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
s;,ecifically identify the contc.sted 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 55.
Simullaneously, the Settling Defendants shall establish an interest-bearing escrow account in a
federally-insured bank duly chartered in the State ofNorth Carolina and remit lo that escrow
account funds equivalent lo 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 accoun~
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. Simullanc:ously with establishment of the escrow account, the
Settling Defendants shall initiate the Dispute Resolution procedures in Section XIX (Dispute
Resolution). If the United Slates 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 55. 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.55; Settling Defendants shall be disbursed any balance of the escrow
account The dispute resolution procedwcs SCI 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.
., .
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57. In the event that the payments required by Subparagraph 54.a are not made
within 30 days of the Effective Date or the payments required by Paragraph 55 are not made
within 30 days of the SeUling 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 oflnterest made under this Paragraph shall be in
addition to sueh 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 Parauaph 72. The Settling Defendants shall make
all payments required by this Paragraph in the manner described in Paragraph 55.
xvn. fNJJSM)'!IFICA TION AND INSURANCE
58. Settling Defendants' Tndcmnification 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) ofCERCLA. Settling Defendants shall indemnify, save
and hold hannless the United Stales and ils officials, agents, employees, contractors,
subcontractors, or repreSentatives for or from any and a11 claims or ~uses 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 canying out activities pursuant to this Consent Decree,
including, but not limited to, any claims arising from any designation of Settling Defendanls as
EPA's authorized representatives under Section 104(ej ofCERCLA. Further, the Settling
· Defendants agree to pay the United Stales all costs it incurs including, but not limited to,
attorneys fees and other expenses of litigation and settlement arising from, or on accow,t of,
claims made against the United States based on negligent or other )'l')Ongfill acls or omis.sions 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 pursW111t 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 canying 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 pw-suant to Paragraph 58.a, and shall
consult with Settling Defendanls prior to settling such claim,-, •·· • ,, ~ .. ,, •..
59. 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. Tn 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 accoW1t of any contrac~ agreement, or
ammgemeat between any one or more of Settling Defendants and any person for pcrfonnance of
, ,1 .. , •,,, ·'"• •'l°S!•••• 1Hdlt Of ,r11fu1•' • I +, ,.,,:,;11-. ,.,
24
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Work on or relating to the Site, including, but not limited to, claims on account of construction
delays.
60. No later than 15 days before commencing any on-site Work, Settling
Defendants shall secure, and shall maintain until the first anniversaiy of EP A's written
notification that the Work has been completed pursuant to Subparagraph 51.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
conlractors or subcontractors satisfy; all applicable laws and regulations regarding the provision
of workds compensation insurance for all persons perfonning the Work on behalf of Settling
Defendants in furtherance of this Consent Deerec. 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 Effc,:;tive 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
61. "Force majeure," for purposes of this Consent-Oecree, 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
p<;rfonnance of any obligation under this Co_nse_nt Decree ~\'Spite SC\tt,lipS ,D~fendan.~'. best
efforts to fulfill the obligation. The requirement that the Settling Defendants exercise "best
efforts to fulfill the obligation" includes using best efforts to anticipate any potential force
majeure event and best efforts to address the effects of any potential force majeure event (1) as it
is occurring and (2) following the potential force majeure event, such that the delay is minimized
to the greatest extent possible. "Force Majeure" does not include financial inability to complete
the Work or a failure to attain the Performance Standards.
62. If any event occurs or has occurred that may delay the perfonnance 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-heubsence, EPA:s
Alternate Project Coordinator or, in the event both ofEPA's designated represcntxtives are
unavailable, the Director of the Hazardous Waste Management Division, EPA Region 4, within
48 hours of when Settling 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 environmait. The Settling
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 27 of 47
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 fuilure to comply, and for any additional delay caused by such failure.
Settling Defendants shall be deemed to know of any circwnstance of which Settling Defendants,
any entity controlled by Settling Defendants, or Settling Defendants' contractors knew or should
have known.
63. lfEPA agrees that the delay or anticipated delay is attributable to a force
majeure event, the time for performance of the obligations under this Consent Decree that are
affected by the force majeure event will be extended by EPA for such time as is necessary to
complete those obligations. An extension of the time for performance of the obligations affected
by the force majeure event shall not, of itself; extend the time for performance of any other
obligation. !fEPA 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 decision. If
EPA agrees that the delay is attributable to a force m.ajeure 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.
64. If the Settling Defendants elect to invoke the dispute resolution procedures set
forth in Section XIX (Dispute Resolution), they shall do so no later than IS days after receipt of
EPA's notice. In 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 6 I and 62, above. If Settling Defendants carry. this burden, the delay at issue shall be
deemed not to be a violation by Settling Defendants of the affected obligation of this Consent
Decree identified to EPA and the Court.
XIX. DISPlf[E REsOLUTION
65. 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. . . . , .. ,. .. ,.,, ... _
66. Any dispute which arises under or with respect to this Consent Decree shall in
the first instance be the subject of informal negotiations between the parties to the dispute. The
period for informal negotiations shall not exceed 20 days from the time the dispute arises, unless
it is modified by written agreement of the parties to the dispute. The dispute shall be considered
to have arisen when one party sends the other parties a written Notice of Dispute.
67. Statements of Position
a. In the event that the panics cannot resolve a dispute by informal
nogotfations under the preceding Paragraph, then the position advancod.by EPA shall.be ,~-.. "'
considered binding unless, within 10 days after the conclusion of the informal negotiation period,
26
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 28 of 47
Settling Defendants invoke the fonnal dispute resolution procedures of this Section by serving
on the United States a written Statement of Position on the .matter in dispute, including, but not
limited to, any factual data, analysis or opinion supporting that position and any supporting
documentation relied upon by the Settling Defendants. The Statement of Position shall specify
the Settlhig Defendants' position as to whether formal dispute resolution should proceed under
Paragraph 68 or Paragraph 69.
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 fuctual 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 68 or 69. Within 15 days
after receipt ofEPA's Statement of Position, Settling·Defendants may submit a Reply.
c. Ifthere is disagreement between EPA and the.Settling Defendants as to
whether dispute resolution should proceed under Paragraph 68 or 69, the parties to the dispute
slutll follow the procedures set forth in the paragraph determined by EPA to be applicable.
However, if the Settling Defendants ultimately appe.al to the Court to resolve the dispute, the
Court shall determine wh.ich paragraph is applicable in acconfance with the standards of
applicability set forth in Paragraphs 68 and 69.
68. Formal dispute re.solution for disputes pertaining to the selection or adequacy
of any response action and all other disputes that are accorded review on the adminisll1ltivc
record under applicable principles of administrative law shall be conducted pursuant to the
procedures set forth in this Paragiaph. For purposes of this Paragraph, the adequacy of any
response action includes, without limitatioo: (I) the adequacy or appropriateness of plans,
procedures to implement plans, or any other items requiring approval,by,EPA under this Consent
Decree; and (2) the adequacy of the performance of response actions taken pursuant to this
Consent Decree. Nothing in this Consent Decree shall be construed to allow any dispute by
Settling Defendants regarding the validity of the ROD'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 die Waste Maru,gerpent Divisiop, EPA Region 4, will
issue a final administrative decision resolving the dispute based on the administrative record
described in Paragraph 68.a. This decision shall be binding upon the Settling Defendants,
subject only to the right to seek judicial review pursuant to Paragraph 68.c and d ..
c. Any administrative decision made by EPA pursuant to Paragraph 68.b.
shall be reviewable by this Court, provided that a motion for judicial review of the decision is
filed by the Settling Defendants wilh the Coun and served on all Parties within IO days of receipt
ofEPA'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 impleme.ntation of this Conseot·Decree, .. The-United
States may file a response to Settling Defendants' motion.
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 29 of 47
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 68.a.
69. 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 67, the Director oftbe 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 seIVe 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.
70. 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 Coun 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 79. Notwithstanding the
stay of payment, stipulated penalties shall accrue from the-first day of noncompliance with any
applicable provision of this Consent Decree. In the event that the Settling Defendants do not
prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in
Section XX (Stipulated Penalties).
XX. STIPULATED PENALTIES
_ 71. Settling Defendants shall be liable for stip,ulated ~e!\~l~cs in the.~~w,ts set
forth in Paragraphs 72 and 73 to the United States for failure to comply with the requucments of
this Consent Decree specified below, unless excused under Section XVIII (Force Majeure).
"Compliance" by Settling Defendants 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 oflaw, 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.
72. Class I Stipulated Penalty
a. 1be following stipulated penalties shall accrue per ·violation per day for
any noncompliance identified in Subparagraph 72.b:
28
• .,__ ____ _ Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 30 of 47
Penalty Per Violation Per Day
$1,500
S2,500
Period of Noncompliance
I st through I 4th day
15th through 30th day
$4,500 31st day and beyond
b. Unless otherwise provided in this Consent Decree, each failure to
comply in a timely and adequate manner with the tenns of this Consent Dec:ee, including the
SOW and any documents incorporated into this Consent Decree pursuant to its tenns, that is not
specifically identified below as a Class U violation under Paragraph 73, 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 72.a.
73. Class JI Stipulated Penahy
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
$500
SI,000
$2,500
Period of Noncompliance
!st through 14th day
15th through 30th day
31st day and beyond
74. In the event that EPA assumes pcrfonnancc of a portion or all of the Work
pursuant to Paragraph 88 of Section XXI (Covenants by Plaintiff), Settling Defendants shall be
liable for a stipulated penalty in the amount ofSl,000,000.
75. 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: (I) with respect to a deficient submission under Section Xl (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 68.b or 69.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 regarding such dispute;
or (3) with respect to judicial review by d1is 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 ,egarding the dispute until the date that the Court issues a final decision
regarding such dispute. Nothing beJCin shall prevent the simulianeous accrual of separate
penalties for separate violations of this Consent Decree.
76. Following EPA's detennination that Settling Defendants have failed to comply
with a requirement of this Consent Decree, EPA may give Settling Defendants w,itten
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 31 of 47
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.
77. 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 Sellling 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
Superfond," shall be mailed to Superfund Collection Officer, Superfond Accow,ting, 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 90-11-3-08268, and the name and address of the party making payment. Copies of
cheek(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 Smet, S. W, Atlanta, Georgia 30303.
78. TI,e payment of penalties shall not alter in any way Settling Defendants'
obligation to complete the performance of the Work required under this Consent Decree.
79. Penalties shall continue to accrue as provided in Paragraph 75 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
IS days of the agreement or the receipt ofEPA'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 detcnnined by the Court to
be owed to EPA within 60 days ofreceipt of the Court's decision or order, except as provided in
Subparagraph c below;
c. If the District Court's decision is appealed by wiy Party, Settling
Defendants shall pay all accrued penalties determined by the Distrjct..Cl>w:t to be owing to .the,
United States into an interest-bearing escrow account within 60 days of receipt of the Court's
decision or order. Penalties shall be paid into this account as they continue to accrue, at least
every 60 days. Within 15 days of receipt of the final appellate court decision, the escrow agent
shall pay the balance of the account to EPA or to Settling Defendants to the extent that they
prevail.
80. If Settling Defendants fail to pay stipulated penalties when due, the United
States may institute proceedings to collect the penalties, as well as interesL Settling Defendants
shall pay Interest on the unpaid balance, which shall begin to aceru~ on th~ date of demand made
pursuantto Paragraph 77. . , , ., ·•,; r-.
81. Nothing in this Consent Decree shall be construed as prohibiting, altering, or
in any way limiting the ability of the United Staf(:s to seek any other remedies or sanctions
available by virtue of Settling Defendants' violation of this Decree or of the statutes and
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• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 32 of 47
regulations upon which it is based, including, but not limited to, penalties plllSuant to Section
122(1) ofCERCLA, 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 ofa willful violation of the Consent Decree.
82. Notwithstanding any other provision of this Section, the United States may, in
its unrevicwable discretion, waive any portion of stipulated penalties that have accrued pursuant
to this Consent Decree.
XXI. COVENANTS BY PLAINllfF
83. 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 Paragraphs 84, 85 and 87 of this Section, the United States covenants not
to sue or to take administrative action against Settling Defendants pursuant to Sections 106 and
I 07(a) of CERCLA relating to the Site. Except with respect to fu= liability, these covenants
not to sue shall take effect upon the receipt by EPA of the payments required by Paragraph 54.a
of Section XVI (Payments for Response Costs). With respect to~ liability, these covenants
not to sue shall take effect when both of the following have occurred: (I) the ROD Amendment
is signed by EPA; and (2) EPA certifies completion of the Remedial Action pursuant to
Paragraph 51.b. of Section XIV (Certification of Completion of Remedial Action). 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.
84. United States' Pre-certification Reservations. Notwithstanding any other
provision of this Consent Decree, the United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or in a new action, or to issue an
administrative order seeking to compel Settling Defendants
a. to perform further response actions relating to the Site, or
b. to reimburse the United States for additional costs of response if, prior to
Certification of Completion of the Remedial Action:
(I) conditions at the Site, previously unknown to EPA, are
discovered, or
(2) information, previously unknown to EPA, is received, in whole or
in part,
and EPA detennines that these previously unknown conditions or infonmation together with any
other relevant information indicates that the Remedial Action is not protective of human health
or the environment.
85. United States' Post-certification Reservations. Notwilh$1anding any other
provision of this Consent Decree, the Unitod States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or in a new action, or to issue an
administrative order seeking lo compel Settling Defendants
a. to perform further response actions relating lo the Site, or
31
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• •----Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 33 of 47
b. to reimburse the United States for additional costs of response if,
subsequent to Certitication of Completion of the Remedial Action:
(I) conditions at the Site, previously unknown to EPA, arc discovered,
or
(2) infonnation, previously unknown to EPA, is received, in whole or in
part,
and EPA detennines that these previously unknown conditions or this information together with.
other relevant infonnalion indicate that the Remedial Action is not protective of human health or
the environment.
86. For purposes of Paragraph 84, the information and the conditions known to
EPA shall include only that information and those conditions known to EPA as of the date the
ROD was signed and set forth in the Record of Decision for the Site and the administrative
record supporting the Record of Decision. For purposes of Paragraph 8S, the infonnation and
the conditions known to EPA shall include only that information and those conditions known to
EPA as of the date of Certification of Completion of the Remedial Action and set forth in the
Record of Decision, the administrative record supporting the Record of Decision, the post-ROD
administrative record, or in any infonnation received by EPA pur..uant to the requirements of
this Consent Decree prior to Certification of Completion of the Remedial Action.
87. General reservations of rights. The United States reserves, ond this Consent
Decree is w_ithout prejudice to, all rights against Settling Defendants with respect to all matters
not expressly included within Plaintiff's covenant not to sue. Notwithstanding ony 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;
b. liability arising from the pas~ present, or future disposal, release, or
threat of release of Waste Material outside of the Site;
c. liability based upon the Settling Defcndan~:.ownership or.opcrationo.(,
the Site, orupon the Settling Defendants' transportation, treatment, storage, or disposa~ 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 whicli occur during or after
implementation of the Remedial Action; and
g. liability, prior to Certification of Completion of the Remedial Action, for
additional response actions that EPA detennlnes are necessary to achieve Performance
32
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 34 of 47
Standards, but that cannot be required pursuant to Paragraph 13 (Modification of the SOW or
Related Work Plans).
88. Work Takeover
a. In the event EPA detennines that Settling Defendants have (i) ceased
implementation of any portion of the Work, or (ii) are seriously or repeatedly deficient or late in
their performance of the Work, or (iii) are implementing the Work in a manner which may cause
an endangerment to human health or the environment, EPA may_issue a written notice ("Work
Takeover Notice") to the Settling Defendants. Any Work Takeover Notice is.sued by EPA will
specify the grounds upon which such notice was issued and will provide Settling Defendants a
period of 10 days within which to remedy the circumstances giving rise to EPA's issuance of
such notice.
b. If, after expiration of the 10-<lay notice period specified in Paragraph
88(a), Settling Defendants have not remedied to EPA's satisfiu:tion the circumstances giving rise
to EPA's issuance of the relevant Work Takeover Notice, EPA may at any time thereafter
assume the performance of all or any portions of the Werle as EPA deems necessary ("Work
Takeover"). EPA shall notify Settling Defendants in writing (which writing may be electronic)
if EPA determines that implementation of a Work Takeover is warranted under this Paragraph
88(b).
c. Settling Defendants may invoke the procedures set forth in Section XIX
(Dispute Resolution), Paragraph 67, to dispute EPA's implemeollltion ofa Work Takeover under
Paragraph 88(b). However, notwithstanding Settling Defendants' invocation of such dispute
resolution procedures, and during the pendency of any such dispute, EPA may in its sole
discretion commence and continue a Work Takeover under Paragraph 88(b) urltil the earlier of
(i) the date that Settling Defendants remedy, to EPA's satisfaction, the circumstances giving rise
to EPA's issuance of the relevant Work Takeover Notice or (ii) the date that a final decision is
rendered in accordance with Section XIX (Dispute Resolution), Paragraph 67, requiring EPA to
terminate such Work Takeover.
d. After commencement and for the duration of any Work Takeover, EPA
shall have immediate ae<:ess to and benefit of any perfonnance guarantcc(s) provided pU1Suanno
Section XIII of this Consent Decree, in accordance with the provisions of Paragraph 49 of that
Section. If and to the extent that EPA is unable to secure the resources guaranteed under any
such performance guarantee(s) and the Settling Defendants fail to remit a cash amount up to but
not exceeding the estimated cost of the remaining Work to be performed, all in accordance with
the provisions of Paragraph 49, any unreimbursed costs incurred by EPA in performing Work
w,dcr the Work Takeover shall be considered Future Response Costs that Settling Defendants
shall pay pursuant to Section XVI (Payment for Response Costs).
89. Notwithstanding any other provision oftj)is Consent Decree, the :United Sta\es
retains all authority and reserves all rights to take any and all response actions authorized by law.
XXII. COVENANTS BY SETTLING DEFENDANTS
90. Covenant Not to Sue. Subject to the reservations in Paragraph 91, Settling
Defendants hereby covenant not to sue and agree not to assert any claims or causes of action
33
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 35 of 47
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 limiled 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 I 06(b)(2), I 07, 111, I 12, 113 or any other provision oflaw;
b. any claims against the United Stales, including any department, agency
or instrumentality of the United States under CERCLA Sections 107 or 113 related to the Site, or
c. ' any claims arising out of response actions 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 Justie<: Act, 28 U.S.C. § 2412, as
amended, or at common law.
Except as provided in Paragraph 93 (Waiver of Claims Against De Micromis Parties),
and Paragraph 98 (waiver of Claim-Splitting Defenses), these covenants not to sue shall not
apply in the event Iha! the United States brings a cause of action or issues an order pwsuant to
the reservations set forth in Paragraphs 84, 85, 87(b) -(d) or 87(g), but only lo 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.
91. 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, ifa private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred. However, any sueh 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.
·92. Nothing in this Consent Decree shall be deemed to constitute preauthorization
ofa claim within the meaning of Section 111 ofCERCLA, 42 U.S.C. § 961 I, or 40 C.F.R.
§ 300.700(d).
93. 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 lo the Site, including for contribution,
against any person where the person's liability to Settling Defendants will! respect to the Site is
based solely on ha,·ing 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
Sile, or (ii) 110 gallons of liquid materials or 200 pounds of solid materials.
34
----· . -·--·---.
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 36 of 47
b. This waiver shall not apply lo 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 contnbute significantly to the costs of response at the Site.
This waiver also shall not apply with respect 10 any defense, claim, or cause of action that a
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 SEmEMt,,JiT; CONTRIBUTION PROTECTION
94. Except as provided in Paragraph 93 (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 10, 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 93 (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 which each
Party may have with respect to any matter, transaction, or occurrence relating in any way to the
Site against any person not a Party hereto.
95. The Parties agree, and by entering this Consent Decree this Court finds, lhat
the Settling Defendants are entitled, as of the Effective Date, to protection from contribution
actions or claims as provided by CERCLA Section 113(1)(2), 42 U.S.C. § 9613(1)(2) for matter.;
addressed in this Consent Decree. For purposes of the preceding sentence, the "matter..
addressed" in this Consent Decree are all response actions taken or to be taken and all response
costs incurred or to be incurred by the United States or any other person wilh respect 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 10 comply with this Decree), in the event !hat the United States asserts rights against
Settling Defendants coming within the scope of such reservations .
. 96. The Settling Defendants agree that with respect to any suit or claim for
contribution brought by them for matters related to this Consent Decree 1hey will notify the
United States in writing no later than 60 days prior to the initiation of such suit or claim.
97. The Settling Defendants also agree that with respect lo any suit or claim for
contribution brought against them for matter.. 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 IO days of receipt of any order from a court setting a
case for trial.
98. In any subsequent administrative or judicial proceeding initiated by the United
Slates 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, resjudicata, collateral estoppe~ 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).
35
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 37 of 47
XXIV. ACCESS TO INFORMATION
99. Settling Defendantsshall 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 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.
1 oo. · Business Confidential and Privileged Documents
a. Settling Defendants may assert business confidentiality claims covering
part or all of the documents or· information submitted to Plaintiff under this Consent Decree to
the extent permitted by and in accordance ,vith 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. lfno claim of
confidentiality accompanies documents or information when they are submitted to EPA, or if
EPA has noti fled 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 allomey-client privilege or any other privilege
recognized by federal law. If the Settling Defendants assert such a privilege in lieu of providing
documents, they shall provide the Plaintiff with the following: (I) the title of the document,
recoru, 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 docwnent, record, or information:
and (6) the privilege asserted by Settling Defendants. However, no documents, reports or other
information created or gener•Led pursuant lo the requirements of the Consent Decree shall be
withheld on the grounds that they are privileged.
101. No claim of confidentiality shall be made with respect to any data, including,
but not limited to, all sampling, analytical, monitoring, bydrogeologic, scientific, chemical, or
engineering data, or any other documents or information evidencing conditions at or around the
Site.
XXV. RIITENTION or REcogos .. ..
102. Until 10 years after the Settling Defcn~ts' receipt ~fEPA's notification
pursuant to Paragraph 52.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 whi~h 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 arc 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
... 36 .. , ..... : ......... ~ .... "' • • , • • I •
• Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 38 of 47
person under CERCLAwith respect to the Site. Each Settling Defendant must also retain, and
instruct its cootr/ll.iors 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
possession or control that relate in any manner to the perfonnance 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 regardlcs.s of any corporate retention policy to the contrary.
103. 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 Stat.es, Settling Defendants shall deliver any such
records or documents to EPA. Toe Settling Defendants may assen that certain documents,
records and other information arc privileged.under the attomey-.:lient privilege or any other
privilege recognized by federal law. If the Settling Defendants assert such a privilege, they shall
provide the Plaintiff with the following: (I) 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 infonnation; (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 IISSCt1ed
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.
I 04. Each Settling Defendant hereby certifies individually that, to the best ofits
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 lei Section 104(e) and
122(e) ofCERCLA, 42 U.S.C. 9604(e) and 9622(e), and Section 3007 ofRCRA, 42 U.S.C.
6927.
XXVI. NOTICES AND SUBMISSIONS
105. Whenever, under the tenns 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 ofa change to the other Parties in writing. All.notices and submissions
shall be considered eflective upon receipt, unless otherwise provided. ,:Written notice as..--.,..,.,
specified herein shall constitute complete satisfaction of.any written notice requirement of the
Consent Dc-cree with respect to the United States, EPA, and the Settling Defendants,
respectively.
37 .. ,'t, I ,,
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 39 of 47
As to the United States:
and
Asto EPA:
As to the Stale:
As to the Settjjng 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 # 90-11-3-08268
Director, Waste Management Division
Uoiu,d States Environmental Protection Agency
Region4
Atlanta Federal Center
61 Forsyth Street, S.W.
Atlanta, GA 30303
Re: Siu,#: A424
Samantha Urquhan-Fostcr
Remedial Project Manager
Uniu,d States Environmental Protection Agency
Region4
Atlanta Federal Cenu,r
61 Forsyth Street, S.W.
Atlanta, GA 30303
David Mattison
NCDENR .·
40 I Oberlin Road, Suite I 50
Raleigh, NC 27605
Name and Address of Contacts for
Settling Defendants' found in Appendix E
xxva. EfFEcTIVll DATE
I 06. The effective date of this Consent Decree shall be the date upon which this
Coosent Decree is entered by the Court, except as otherwise 'provided herein.
XXVJII. RmNTION OF JuruSDICTION
107. This Court retains jurisdiction over both the subject matter of this Consent
Decree and the Settling Defendants for the duration of the perfonnance of the tenns and
provisions of this Consent Decree for the purpose of enabling any of the Parties to apply to the
Coun at any time for such further order, direction, and relief as may be necessary or appropriate
for the construction or modification of this Consent Decree, or to effectuate or enforce
38
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 40 of 47
compliance with its terms, or to resolve disputes in accordance with Section XIX (Dispute
Resolution) hereof.
XXIX. APPENDICES
I 08. The following appendices are attached to and incorporated into this Consent
Decree:
"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 SOW.
"Appendix E" is contact information for Settling Defendants
XXX. COMMUNIT)' RELATIONS
109. 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
110. 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.
I 11. 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 opportwtity to review and comment on the
proposed modification. Modifications to the SOW that do not materially alter that docurnen~ or
material modifications to the SOW that do not fundamentally alter the basic features of the
selected remedy within the mea_ning of 40 C.F.R.300.435(cX2XB)(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.
112. Nothing in this Decree shall be deemed to alter ihe Court's power to enforce,
supervise or approve modifications to this Consent Decree.
39
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 41 of 47
XXXII. LODGING AND OPPORTIJNTTY FOR PuBuc CoMMENr
113. 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.
114. If for any reason the Court should decline to approve this Consent Decree in
the fonn presented, this agreement is voidable at the sole discretion of any Party and the tenns of
the agreement may not be used as evidence in any litigation between the Parties.
XX:Xlll. StGNATORIBslSERYJCE
. 115. 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 tenns and
conditions of this Consent Decree and to execute and legally bind such Party to this document
116. 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 bas notified the Settling Defendants in writing that it no longer supports entry of the
Consent Decree.
117. 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 8lld to waive the
formal service requirements set forth in Rule .4 of the.Federal Rules of Ciyil Procedure 1111d an)( ..
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. FINALJUDGMENT
118. 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 this ConsentI>ccree. · .. · · "1" 1 ,,., ..... , ..... , • • • • ··'
I 19. Upon approval and entiy of this Consent Decnec 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.
40
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 42 of 47
./--
so ORDERED THIS? DAY OF .I..J,.~p!~
41
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 43 of 47
~
Deputy Section Chief
Environmental Enforcement Section
Environment and Natural Resour= Division
U.S. Department of Justice
Washington, D.C. 20044
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box. 7611
Washington, D.C. 20044-7611
42
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 44 of 47
,, /2.r 1,
~
Bever! . Banister
Acting Din:ctor
Waste Management Division
U.S. Environmenta!Protection Agency
Region 4
Atlanta Federal Center
61 Forsyth Stxeet, S.W.
Atlanta, GA 30303
Associate Regional Counsel
U.S. Environmental.Protection Agency
Region4
Atlanta Federal Center
61 Forsyth Street, S.W.
Altanta, GA 30303
45
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 45 of 47
September 20, 2006
Date
CllAIU\S14UUvl
FOR MARTIN MARIETTA MATERIALS,
INC. AND LOCKHEED MARTIN
CORPORATION
N!:":•re~~ ~
Title: Senior Vice ~sident, General CoU11Sel and
Corporate Secretary
Address: 2710 Wycliff Road
Raleigh, North Carolina 27607-3033
Phone: [phone]
• • Case 7:06:cv-00154-FL Document 6 Filed 12/08/2006 Page 46 of 47
----------··-·-----·---------· -----····-·-----···-·-·
FOR HILDA C. DILL
signature: ____.h..,.,,_.\J""'--'p.. c"-'---". of"-"'-. II_
Name: Ms. Hilda C. Dill
Address: 1201 Glen Meade Road
Wilmington, NC 28401 ·
Phone: [phone]
• Facsimile: 9 I 0-762-2680
• • Case 7:06-cv-00154-FL Document 6 Filed 12/08/2006 Page 47 of47
FOR JANE C. SULLIVAN
Signatw-e7·~q:e'.L.,_.Lt,!.L!&~===-~
Name: Ms. Jane C. Sullivan
Ad : 1201 Glen Meade Road
Wilmington, NC 28401
Phone: [phone]
Facsimile: 910-762-2680
• •
APPENDIX C
'
• •
' ' • • •
' . •
'
Appendi_x C
Reasor Chemical Company Site Diagram
• •
'
'
•
. ~'G---"'--=" I -::. I ----~J I ·-w ----:---...... ·-----"1.... I I . --...'.__ I _1--L/ I ! 1 ----.!_ I
9 _ 11l.._c / ' ' ---r---_..."' ~ ---........_ -· I I I
'
___ ,_ ; I
i ----. ..;
--• =:j:__~ ------I ----.
I
\ REASOR 0-iEMICAL COMPANY CASTU. HAYNE. NORTH CAROLINA
---,-North
s...,...,. ••• 11.1,1,,, R.m:rcnccd from-WESTON llfJ9 RI R.q,on
R!tASOR CHEMICAL srrE
•
•
• •
APPENDIXD.
STATEMENT OF WORK FOR THE
REMEDIAL.ACTION AT THE
REASOR CHEMICAL COMPANY. SUPER.FUND SITE
NEW HANOVER COUNTY, NORTH CAROLINA
TABLE OF CONTENTS
Section
. ll.
ill.
N.
INTROI>UCTION .......... :., ................................................ : ... : ................. : ................ : .. :.: ..... 1
OVERVIEW.OF.THE. REMEDY .• , ............................................ '.: ........................ , ... : ... , ...... !
REMEDY ................. .' ..................... , ..... >.: ....................................... : .................................. :.,.2
A. · Components ....................... , ......... :.:, ........... : .... : ............................ : ......................... :i .
B. Treatment ........................ , ..... : .................................................. : ............................. ;.3
:. C.. PerformanceStaildards ....................................... , ........... : ...... : .................................. 3
D. Compliance Testing .. : ... ,: .... , .................. , ..... : ..................... , ..................................... 4
PLANNING AND DELNERABLES ..... : ...... :.: ........ : ......... ~ ....... : ...................................... A
TASK I -PROJECT PLANNING .............................................. : ...................................... :.4
A. Site. Background., .......................................... , ..... : ..... : ... , ......... , ..... , .•. ,: ..... ,: .. 4
. R , Project Planning .... • .................... :,, ............. : ..... :., ............................................ 5
· TASK ll -REMEDIAL ACTION , ................... : ............................ : ...... : .............................. 5
A. Remedial Action PlanniIJ.g ........................................................ : ...... : ... : .. :, ... 5
B. Preconstruction Conference ........................................................................ 10
C. Prefinal Construction Inspection/Final Construction Inspection ............... II
D. Final Construction Report .................. , ...... ,., .......... ,._:°' ............... , ..... , ............ 12
E. Remedial Action Report .................... : .................................. ~: ................... 12·
TASK ill-PERFORMANCE MONITORING ............................................................... .13
A. Performance Standards Verification Pl~ ........... :: ..................................... 13
· B. .. Five,YearReview ....... :, ................ , ............. : ........................................... : .. 15
REFERENCES ............................ :, .......... : ...... : ...... : ................... : .... '. ..... ,: ....................................... 16
SUMMARY OF THE MAJOR. DELNERABLES ..................... ::: ......... : ...................... : ............. .19 .
-i--
•
STATEMENT OF WORK FORTHE
. _REMEDIAL ACTION AT THE . .
REASOR CHEMJCAL COMPANY SUPERFUND SITE .
L . INTRODUCTION
This Statement of.Work (SOW) outlines the work to be performed by the Defendants at the ·
· Reasqr Chemical Company Superfund Site in Castle Hayne, New Hanover 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), mqdifications associated with.the ROD, and to
, achieve the Performance Standards set forth in the ROD, modifications associated with the ROD, ..
Consent Decree (CD), and this SOW. The requirements of ibis SOW will be furth~r detailed in
work plans and other documents to be submitted by the Defendants for approval as set forth in
this SOW. It is not the intent of this document .to provide task specific engineering or geological ·
guidance. The definitions set forth in Section III of the CD shall also apply to this SOW unless
expressly provided otherwise herein. · ·
I .
Defendants' are responsible for performing the·Work to implement the selected remedy. EPA
shalt conduct oversight of the Defendants' activities throughout·the performance of the Work.
The Defendants shall assist EPA in conducting oversight acti~ities.
EPA review or approval ofa task or deliverable shalrnot be construed as a'guarantccas to the
adequacy of such task or deliverable. If EPA modifies-a deliverable pursuant to Section XIII of
the CD; such deliyerable as modified shall be deemed approved by EPA for purposes of this
SOW. A summary·ofthe major deliverables that Defendants shall submit for the Worbs
attached.
· II. OVERVIEW OF THE REMEDY
The objectives of this remedial action arc:
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 &Jor k)fluoranthene,
. indeno(l,2,3-cd)pyrene; dibe!IZo(a,h)anthracene, Total•Pi\Hs, 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-)methylphenol, total P AHs, and copper.
• •
SURF ACE WATER: to prevent further migration of contaminants to soil, groundwater and
down-gradient surface water.bodies, arid to_ eliminate exposure to coniaminatcd surface water by
aquatic ·receptors by achieving the North Carolina Surface Water Quality Standards (NCAC Title
1 sA; Chapter 2, Subchapter 2L.0J 00 and 2L:0200) for the following contaminants of concern:
copper, lead, iron and zinc .. · . . . .
GROUNDW.ATER: to restore groundwater to drinking water levels by attaining Federal
Drinking Water or risk:based standards·for the contamiruuits of concern: thallium (Federal
Maximum Conta~ant Levels (MCLs)) arid aluminum (risk~based) .
. III. REMEDY
A. Components
The major components oftlie remedy are described in Section 2.12, Selected
Remedfsection of the attached Record of Decision. In suinniary, the remedy
selected by the ROD includes: ·
• · Extraction and off-site disposal of approximately 500,000 gallons of
contaminated surface water from porids 1;2,3 and 4i ·
• Excavation and off-site disposal of approximately 1,600 cubic yards of
contaminated soil and sediment from severi discrete locations: scrap
· copper area, drum disposal area, pipe shop area; pond I, pond 2, pond 3
andpond4; · ·
• Backfill and vegetate the excava_t_ed areas_ with native speci_es;
• Place recordations ori property.deeds:indicating that the groundwater is
coniaminated with inorgmic compounds; . . .
• .. Perform ann~l monitoring ~{groundwater t~ determine if contaminants
of concern continue to be elevated; and . .
• If groundwater contaminants.of c_oi:t~mcontinue to be present in
concentrations exceeding clean-up standards, a contingency remedy will
· be implemented.
Through negotiations related to this CD, the Defendants and EPA agreed to
several modifi~ations to.the remedy. They include: ·
• ·. The contingent groundwater-remedy will not be a part of this CD.
• The Defendants shall take steps to raise the pH of the groundwater in the
vicinity of well MW-7S/MW-7D and thereby reduce aluminum
concentrations. The steps include adding limestone or other alkaline
substance prior to backfilling and/or applying alkaline substance in the
vicinity of wen MW, 7S/MW-7D for infiltnition. ·
• • Modification of the groundwater sampling and aniilysis monitoring
program to limit the monitoring to two locations (MW-7S and MW-7D)
rather than all wells, and for analysis to include turbidity, pH and
2
• •
aluminum rather than the full suit.; of metals. · Samples will be collected
annually from Wells MW-7S arid MW-7D and field tested for pH. If the
pHisbetweeii 7.2 and8.5 at any sampling event, asa:inple will be . .
collected using bestefforts to reduce: turbidity, arid will be analyzed for
aluminum. Field data forturbidity and pH will be recorded'at each'
sampling eveni ... At four years after the initiation of the remedial action,
samples will be collected froni wells MW-7S and lvfW-70 an,ranalyied
. for alllll1inUl1l, with pH and turbidity field data docum.;nted. . . .
• Defendants niay treat and dispos~ of surface water on-sit~ iri liciu ofoff:
site treatment/disposal; if proposed in the Remedial Action Work Plan.
• After excavation, Defendants may re~establish the ·ponds as ponds rather
than backfilling. However, if Defendants c.hoose to backfillthe ponds
with soil and not return them to ponds, a wetland area will be created
(either on-or off-site) to make up for the loss ofwetiandand open water
habitat functions resulting.from excavation !ll\d subsequent backfilling of four pond areas. Final location, design, arid performance criteria of this
... wetland mitigaiion; necessary only if.I>efendants ch~se to backfill the.
ponds with soil and nof return them to ponds, should be outlined in a
Habitat Restoration Plan. · ·
EPA will modify the ROD to reflect these changes; ... · . . ·.,. . ' \
R . Treatment
The treatment technologies for the remedy are described in Section 2.12, Selected
Remedy section of the attached Record .of Decision. If On"site•surface water
treatment is preferred by the Defendants, the treatment inethods mustbe
thoroughly described in the RemedialAction Work Pfan. The remedy
components mentioned in ihe second set ofliullets in Section III.Awill be
reflected.in a modification to the·ROD. ·
C. Performance Standards
Defendants shalrnieet all Performance Standards,as.defuied in the CD including
the standards set forth in the attached Record of Decision·and modified ROD.
However, groundwater monitoring, as described in'Sectioil III.A of this SOW and
as,anticipated to be set forth in the modified ROD, is the only requirement for that
media in this CD. · · · ·' ·
. Defendants shall operate the soil/sedimertt/surface water treatment systems until
Defendants have demonstrated coinpliance with the respective Performance
• ·. Standards;.in,accordance with the Performance Standards Verification Plan,
which Defendants shall include as part of the Field Sampling and Analysis Plan.
3
...... ··-·· -· -·-··· '"··-·----·"--------------------·-·--·
D.
• •
Coinpliance Testing
Defendants shaffperform compliance testing to ensure.that all Performance·
Standards are met. The excavated areas and groundwaier shall be tested in
accordance with the Performance Standard Verification Plan developed pursuant
. to Section IV, Task m; of this SOW: After delllonstration of compliance with
Performance Standards, Defendants shall. test the Siie, only with respect to·
groWJ.dwater, for a minimum of five years .. The re-vegetated areas shall be
• monitored for a minimum period, as set forth in the. Operation~ and Maintenance
.. Plan to ensure, they become reestablished to rileetconditions as currently existing
with respect to vegetation and· wetlands on equivalent non-contaminated portions
~~s~ . .
IV; PLANNING AND DELIVERABLES
The specific ~cope ~f thi~ work shail be documented by Defendants in a Remedial Action (RA) . ,
Work Plan. Plans, specifications, submittals, and other deliverables shall b~ subject to EPA
review and approval in accordance with Section xriI of the CD. All approved, final documents
shall also be submitted to the EPA Remedial Project Manager (RPM) in electronic format,
. within 15 days of document approval notification. ·
Defendants shall submita technical memorandum documenting any need for additional data
. along with the proposed Data Quality Objectives (DQOs)whenever such requirements are·. . .
identified: Defendants are responsible for fulfiliing additional data and analysis needs identified :
by EPA during the Remedial Action (RA) process consistent with. the genera1'scope .and . · '
objectives of the CD, including this SOW. · ··
Defendants shall perfo1U1 the following tasks: .
. ,··'.: ..
TASK I -PROJECT PLANNING.
A. Site Backgro,:;.,d
Defendants shall gather.and.evaluate the existing information regarding the Site.and shall.
conduct a visit to, tile Site to_ assist in planning the. RA as follows: . . .
I. ·' Collect and Evaluate Existing Data and Document the Need for Additional Data
Before pianning RA activities, all existing Siie data shall be thoroughly, compiled ·
. an<I ~eviewed by Defendants .. Specifically, this sh;lll include the ROD, RI/FS,
. RD,,and .other available data related to tile Site. This information shall be utilized
in detemiining 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
4
• •
· DQOs shall be made by EPA._
2. Condi.Jct Site Visit
Defendan~.shallcondrict a"visit to the Site with the RPM during the project
. planning pbase to assist in developing a conceptuahmderstariding of the RA
requi.ren:ieO:is for the Site, if EPA deems such joint visit to be iiecessary after
-verbaldiscussimi between the RPM and Defendants and/or their'tepresentatives.
Information gathered during this.visit, if necessary, shall be utilized.to plan the_
project and to determine the extentof the additionar'data·necessary (if any) to _
' implement the RA. · · ·
B. Project Planning
Once Defendants have collected and evaluated existing ~fa and have &inducted-a visit to-the
Site with the RPM if deemed necessary ~de~ the preceding subsection; the specific project _
scope shall be planned. -Deferidiirits shall communicate with EPA althe completion ofthis
evaluation regarding the following activities·and before prilc~ding withTaskII~ --· ·
. : ' . . '. . ,
.. ,
· TASK IT , REMEDIAL ACTION.
Remedial Action shall be perfomicdby Defendants to implemerittheresponseactions selected'iri.
the ROD and modifications associated with the ROD. -----
-A.. Remedial Action Plamiirtg · .
Within 30 days after EP A's issuance of an authorization to proceed pursuant to Paragraph _l O of_---
the CD, Defendants shall submit a draft Remedial Action (RA) Work Pian and-ii C<mstruction · · -
Health and Safety Plan/Contingency Plan. The RA Work Plan'shaU include necessary ·
components for planning and managing construction. The RA Work Plan musi be-·reviewed ~iid.
approved by EPA and the Construction Health and Safety Plan/Contingency _Plan reviewed and .
. commented on by EPA prior to the initiation of the Remedial Action. · · · ·
. Upon approval of the -RA WorlcPlari; Defendants shall implement the RA Work Plari"in. _ .
accordance with the construction management schedule'.' Significant field changes to the RA as·•
set forth in the RA Work Plan and Final Design shall not be undertaken without the_ approval of
EPA. The RA shall be documented•iri enough detail to pr<iduc,i'as-built construction drawings. ·
after the RA is complete,. if such drawings are necessary. Deliverables shall be submitted to
EPA for revie~ and ii'pprovalin acB<irdaiice with SectionXIIl of the CD._ Review and/or
approval of sribmittals does not implyacccptance·oflater sulimittals that have riot been
reviewed,.nor that the remedy, whbi constructed; will n:ieet Performance Standards.
. ' . . ._,:: '. ,.
5
• •
. I. RA Work Plan
A Work Plan.Which provides a detailed plan of action for completing the RA
activities shall be submitted to. EPA for review and approval.. The objective of
this work plan is to provide for the safe and efficient completion of the RA. The
RA Work Plan shall include.necessary components for planning and managing
· cons_truction: The Wo* Plan shall be developed in conjunction with the
Conslrllction Health and Safety Plan/Contingency Plan. arid the Performance
Standards Verification Plan (in Task III), although each_ plan may be delivered·
under separate cover. The Work Plari.~hall 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 deliverab_le. ·
Specifically,.the RA Work Plan shall present the foUo\Ving: .
a.
b:
. 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. · . . . . . . . -. . .
. . A schedul~for completion of each r~uired~ctivity arid submission of
. , each deliverable required by this CD, 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
d.
e.
f.
··. major.phase of the RA, · ·
·· A description of the community rel_ations support activities to be
conducted during the RA. At EPA's request, Defendant shall assist EPA
in preparing and disseminating information to tlie public regarding the RA
work tci be performed: · ·
Components addressing strategy for delivering the project, which shall ·
• .. address the manageirieni approach for implementing the Remedial Action,
. ··. including procurement methods and contracting strategy, phasing
. alternatives, anci co~tractor and equipment availability concerns. If the
constructio11 of the remedy is to be accomplished by Defendants•
"in-house" resources, the_ document shall identify those resources.
Components addressing planning and management of construction, which
... shall be. developed to indicate how the construction activities are to be
. implemented and coordinated With EPA,during the RA. Defendants shall
~esignate and identify the person who will serve as the Remedial Action
_ Project Coorpinator. This person will be on-site during the Remedial
Action. These components in the RA Work Plan shall also identify other
key p~oject management personnel and lines of authority, and provide
6.
g:
• •
. . .
descriptions of the duties of the key personnel along with an
organizational chart. In addition, a plan for the adrnixtistration of .
construction c.hanges and EPA.review and approval of those changes shall
· be included. · · ·
An abbreviated Operation ,uid Maintenance Plan (O&M),which must be
approv~ by EPA prior io initiation' tif Operation arid Maintenance
activities:· It is not anti~ipated that ihere will be ~y long0 term operations
. for this remedial actit>n, other than grt>undwater monitoring only at MW-
7S. and MW-7D: However; sliort0term maintenance wilfinclude ensuring
re~vegetated'areas thrive arid:the wetlands return to conditions as currently
existing with respect lei vegetation and wetlands on equivaleni non-
contaminated portions of the Site. Therefore, the O&M Plan may be
abbreviated to only cover appiicable items of the g~ileric ones described
below and may be submitted as part of the RA Work Plan. If necessary,
the O&M Plan shall be modified to incorporate any design modifications
implemented during the Remedial Action. The' Performance Standards
Verification Plan shall also include tasks tliat address O&M activities as
set forth in the O&M Plan.
· Upon apprciv.al oftbe O&M Plan, Defendants shaU implement the O&M
Plan in accordanci; with the schedule contained therein .. This plan shall ·
. describe start0up prcicedures, operation; troubleshooting, training, and
evaluation activities'tbat shall be carried out by Defendants. At the 30 •
percent constru.ction stage, Defendants shall submit an O&M manual for
review, if deemed applicable by EPA. This manual shall include all
necessary O&M information for the operating personnel. If deemed
. applicable, the O&M manual musi be reviewed and approved by EPA
prior to initiation of Operation arid'.Jldainteiiiuice activities. The plan shall
address the following elements, if applicable:
,I. Equipmenl'siart-up and operator training; .
a. · Technicai specificatfons governing treatment systems;
b. , Requirements for providing appropriate service. visits by .
· experienced personnel to supervise the installation, ·
adjustrneil~ start-up arid operation ofihe systems; and,
c, Schedule for trairiing personnel regarding appropriate
operational procedures once start-up has 'been successfully
. . completed. . · · ·· ·. · · . . · ·.
2: Description of iiom:ial operation and mainienance;
a .. , 0escriptiori of tasks requited for system operation;
b: · Description of tasks requiredfor system maintenance;,
c. · · · Description of prescribed iieatrnent or operating conditions;
d. Schedule showing the required frequency for each O&M
task: . .
7
• •
.. 3. Description of potential operating problems;
a. Description and analysis of potential operating problems;
b. So~es of information regarding problems; and
c. . Coniinun·remedies or anticipated corrective actions.
4. Description of routine monitoring and laboratory testing;
a. Description of monitoring tasks;
b. Description ofrequired laboratory tests and their
interpretation;
c. Required QNQC; and
d.. Schedule.of monitoring frequency and date, if appropriate,
. when monitoring may cease .
.. 5. Description ofaltemate O&M;
a. Should system fail, alternate procedures to prevent undue
hazard; and
b. Analysis of vulnerability ~d additional resource
. :requirements sho~ld 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
7.
.. ·: . b ... · · Safety tasks r~quired in ilie e~ent of systems failure ..
. 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 .
. Recf)rds and. reporting; .
a.· Daily operating logs; .b. · Laboratory·records; •
c.. . . Records ofoperating cost;
d .· Mechanism .forreporting emergencies;
e. Personnel and Maintenance Records; and
f. Monthly reports to State/Federal Agencies.
2. Construction Health and Safety Plan/~ontingency Plan .
Defendants shaUp~epare a Con,;tni'ction Health and Safety Pl~Contingency Plan .
iri conformance with Defendant's he.alth and safety program, and in compliance
with()SHA regulations and protocols. The Cons~ction Health and Safety Plan
shall include a health arid safety risk ,µ,alysis, a description of monitoring and
persooalprotectiv~ ,equipment, mediqal monitoring, and site controL EPA will
not approve Defendant's Construction H~alth and Safety Plan/Contingency Plan,
but.rather EPA will review it to ensure that all necessary elements are included,
and that the plan prnvides for the protection of human health and the .
8
• •
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. Toe Contingency Plan is to be written for the on.site ·
· construction workers and the local affected population. It shall include the
· following items:· · ·
d.
e ..
Name of person who will be nispoiisible in the event of an emergency
incident. ·
Plan for initial site safety indoctrination and training for all employees,
name of the person who will give the training and the topics to be covered:
Plan and date for meeting with the lcical community, including local, state
and federal agencies involved'in the cfoanup, as well ·as the lcical
emergency squads and the lcical hospitals.
A list of the first aid and medical facilities· including, location of first aid
· kits;nanies of personnel trained iri first aid, a clearly marked map with
· . the route to the.nearest medicaHaciliiy, all necessary emergency phone
numbeis conspicuously posted at thcjob site {i.e., fire; rescue, local
:hazardous materialtearns; National Emergency Response Team, etc.)
-.i
Plans for protection of public anci visitors to the job site.
f. . · Ai~Monitoririg Plan. which incorporates ·the following requirements:
I) Air monitoring shall be conducted on Site,. The cbemicakonstituents .
thai were identified during the Risk Assessment shall serve as a basis of
the sampling for and measurement'ofpollutants in the. atmosphere.
Defendants shall clearly identify th~se compounds ·and the detection and
notification levels required iri Paragraph 4 below. Air monitoring shail
include peisonnel monitoring ind on-site area monitoring.
2) Perscinricl·mciriitoring shallbe·conducted according to OSHA and
NIOSH regulations and guidance.
3) Onsite Area 1-fonitoring shall consist of real-time monitoring
performed·inuriediately adjacent tcranywasie excavation areas, treatment
areas, and any other applicable areas'wheri work is occwring.
· Measurements ·shalt be taken in'the breathing zones of personnel and
· immediately upwind and downwind ofihe·wcirk aieas, Equipment shaB
include the following, at a minimum: organic vapor rrieter and particulate
monitoring .;quipmerit. · ·
.9
• •
g. A Spill Control and Countermeasures Plan which shall include. the
following: . . .
. I) Contingency measures for potential spills and discharges from
• materials handling ~&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 personn61 necessary to perform
· emergency measures required to contain any spillage and to remove .
.. spilled materials and soils or liquids that be~ome contaminated due to
... spillage. This collected spill material must be properly disposed of.
4) A description of the equipment arid personnel to perform
ilecontainination measures.that may be required for previously
uncontaminated structures, equipment, or. material.
B. Preconsiruction Conference . . . . . .
A Preconstruction Conference sh~ll be held after selection ~fthe consiruciion contractor bui .• •.
before initiation of construction~ This conference .shall include Defendants and federal,.state and · .·
local government agencies as appropriate and shall: . . . . ...
I.· Define the roles, relationships,.and responsibilities of all parties;
t . Review methods fo~ docu.rnenting arid reporting inspection dalli;
3. Review methods for distributing an~ storing docwnents and reports; . ' . . . ' . .
4. Re..:i:; work area security arid ~af~ty protocols;• . . . . -· . . . .· ·.
5. . Revieo/ the Construction Schedule;·
6. . Conduct a site reconnaissance to verify that the design criteria and the plans .. •
specifications are understood and to review material !Uld equipment storage
locations. · · · · ·
The Preconstruction Conference must be docwnented by the Defendants,focluding names of . · •
people in attendance,.issues discussed, clarifications made; special instructions issued, eic. The
documentation shall be submitted to EPA within 30 days after the preconstruction conference.
10
• •
C. . Prefinal Co~struction Inspectimi/ Final Construction Inspection
Upon preliminary project completion· Defendants shall notify EPA for the purpose of conducting
a Prefinal Construction Inspection_ Participants should iriclucle_ ihe Project_Coordioators, .
. Construction Contractor, EPA Reniediaf Project Manager, aiid Natural Resource Trustees. Other
federal; sta,te, and local agencies with a jurisdictional interest shall be invited. The Prefinal
Inspection shall consist of a wa1kithrough inspection ·of the entire project site. The objective of
· the iµspectii>n is to detemiine whether the_ construction is complete and consistent wiih the CD.
Any outstanding consiruction itenis discovered during the inspection shall be identified and.
noted on a punch list. Additionally, treatment equipment (if any) shall be operationally tested by
-Defendants. Defendants shall certify that the equipment has perforrried'to effectively meet the ·
purpose and intent cifthe' specifications;. Retesting shallbe completed\vhcre deficiencies are
revealed. · ·
If no construction items were found outstanding in the Prefinal Construction Inspection; that .
inspection shall serve as the Final Construction inspection arid the p~e-certification inspection, if .
Defendants have provided certification to the Ui!ited Staiesprior to the inspection as provided in ·
Section E of this Task II. In such case, Defendants shall submit a Final Inspection Report _· ·
detailed-in this Task II section. ·
-If construction it~ms were found outstanding i_n the !'refinal Co!}Struction lnspecti(!n, a Prefmal):
Construction Inspection Repoitshall be submitted by Defendants with.to 7 days oftheinsi>ecifoii, ..
• which outlines the outstanding construction 'iiems; actions:required ti,•;esolve the items,·._.·• · :°"; · :
·. -completion date for the items, and an anticipated date for the Final Inspection."
Upon completion of all outstanding construction items, Defen&nts shall notify EPA for the
, purpose of conducting a Final Construction Inspection. This FinalC011Struction Inspection shall-·
serve as the pre-certification inspection'., if Defendants have provided certification to the United
States prior to the inspection as provided in S,ection E of this Task II, if the PrefinalConstructicin
Inspection indicated outstanding construction items; and if those outstanding construction items
are not found outstanding in the Finai Construction Inspection. The Final Construction .
Inspection shall consist of a walk-through inspettioti 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 ideritifiecl in the PrefirialConstruction
· Inspeciion. All tests that were originally U1)Satisfactory shall be conducted again. Confirmation
shall be made during the Final Construction.Inspection that all oiitstanding items have been
resolved. . Any outstandirig coilstiuction iteiris discovered during the irispettioil still requiring
correction shall be identified and noted on a punch list. If any items are still .unresolved, the
inspection shall be considered to be a Pre final Construction Inspection requiring anothe_r Prefinal
Construction Inspection Report and subsequent Final Consiruction Inspection. . ,, . . .,,
11
• •
D. Final Construction Report
Within thirty (30) cbys following the conclusion of the Final Construction Inspection,
Defendants shall submit a Final Construction.Report. EPA will review the draft report and will
provide comments to Defendants. The Final Construction Report shall include the following:.
' . ' ' . . .
I.
2.
3.
4.
Brief description of how outsianding items noted in the Prefinal Inspection were
resolved; · ·
The date of the final inspection, a roster of participants. and summary of findings;
Explan~tion of modifications made duririg the RA to the original RD _and RA ..
Work Plans and why these changes were made; . .
. Drawings that illu;irate the dimensions of excavations, locations of cmi.fumation ·
samples, locations/dimensions of areas backfilled or applied with limestone or·
similar alkaline substance, and locations•ofreplacement ponds/wetiands; at a , .
minimum.
5.. Synopsis of the ~otisiruction work defin;d in the sow and certlficatiori that the.
construction worlc has been completed.. . . . . . . . . .
· E. Remedial Action Report
• As provided in Section.IX of the CD, within 9C}days after Defendants conclude tliat the. • .
. Remedial Action h,wbeen fully perfomied and the Performance Standards have been attained, . .
· Defendants shall so certify to the United States and shall· schedule and conduct a pre-certification ·
inspection to be attended by EPA ~d Defendants, As provided in Section C of this T.ask II, t!J.e
Prefinal Construction Inspection shall serve as the pre-certification inspection if Defendants ha,ve. ·
provided certification to the United States and no construction items are outstanding, jf aftedhe .
pre-certification inspection Defendants stiU believes that the Remedial Action has been fully . . .
. performed and the Performance Standards have been attained, Defendants shall submit_ a ... · .. , .· . ..
Remedial Action (R.A}'Report to EPA in accordance with Section IX of~e. CD. The RA,Reporf .•
shall 10clude the foll~fing: · · · · ·
I.
2.
3_.
A copy of the Final Construction Report; ·
Synopsis of the worlc defined in this SOW and a demonstratic,n in accordance
with the Performance Standards Verification Plan that PerfOflllll1!Ce Standards
. have been a~hieved;
Certification that the Rem~clial. Action has been completed in fuU satisfaction ~f ..
the requirements of the CD, and; . . . . . . .
12
• •
4. If applicable, a description of how Defendants will implenient any remaining ·
operations and maiqlenance as required in the RA Work Plan and as specified in
the Performance Standards Verification Plan.. . . . .
After EPA review, Ddfendants shaffaddress any comments arid submit'a revised report; As
provided in Section IX of the CD, the Remedial Action shall not.be considered complete until
EPA approves the RA Report. . . . . . .
TASK Ill -PERFORMANCE MONITORING
Performance monitoring shall be conducted to ensure that ail Perfoi-marice Standards are met.
Operation and Maintenance (O&M) shall be performed in accordance with the approved RA
. Work Plan and as specified in this Perfonnancc Standards Verification Plan. ··
A. Performance Standards Vetificatioii Plan
The purpose of the Pe~onnan~~ Standards Verification Plan (PSVP) is to provid: a-mechanism
to ensure that both short-term andlong-term Performance Standards for the Remedial Action arc
met. Defendants shall submit a Performance Standards Verification Planwith.the Remedial . ·
Actiori. Work Plan. Once approved, Defendants shall implement the Perfoniiance-Standards
Verification Plan on the approved schedule.
. . . ' . . .. . . . . .·
The PSVP sh_all ensure that sample coUection and analytical ac~vities are conducted iti _
aecordance_'with technically acceptable protocols and that the.data generated wilt'meet_theDQOs established: . . . · . . . . . . . , . -
The PSVP shall iri.~lude a Ficld Sampling and'Analysis Plan (F~AP) lllld a QiJality Assuriince '
Project Pian {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 aiid vertical)and frequency, sampling equipment and procedures, and sample ...
handling and analysis, including sampling with respeci'tci groundwater for the pwpose:of O&M
as set'fortJi in 'ibc RA Work' Plan. The Field"Sanipling and Analysis Plan shall be written so thtlt
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 anc:1 organization; functional activities, and
quality assurance and quality control (QA/QC) prdtocols that sliall be used to achieve the desired
DQOs: The DQOs shall; at a minimum, rcfleci use of analytical methods for obtaining data of
sufficient quality to meet National Contingency Plan.requirements as identified at300.435 (b).
In addition, the QAPP shall address personnel qualifications, sampling procedures, sample ·
custody, analytical procedures, and data reduction, validation; and reporting. These procedures·
must be consistent with the Region IV Environmental Compliance Branch Standafd Operating
Procedures and Quality Assurance Manual and the guidances spe'cified in Section XV of the CD.
13
• •
The QAPP shall also contain applicable components of a construction quality assurance plan, of
those listed.below, to ensure; with a reasonable degree of certainty, that the completed Remedial
Action meets or exceeds all design criteria, plans and specifications; and Perf9rmance Sfan&rds.
L
2.
3.
4 ..
5.
6 ..
A description.of the quality control organization, inciuding a chart showing lines
. of autliority,id.entification of the meinliers of the Independent Quality Assurance .
Team (IQA n, and acknowledgement that th~ IQAT will implement the control..
systein for:all aspects of the work specified and shall report to the Project . •· ..
Coordinator and EPA. The IQAT members shall be responsible for the QA/QC.of
the Remedial Action. The members of the !QA T 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. . -,, . .· . . ., . . ,, . •, . •·,
The name, qualifications; dllties, a,uthorities, and resp~nsibilities ofc~ch pe;,.i,n. · .. ·
·assigned' a QC function'"· . • · . . . . . · · . : · · :c, .
Description of the observations and control b,sting Uiai ~ill be :used (6:~ocitor ..
the constructl,:m and/or installation of the components ofihe Remedial Action, .
. This inc,ludes information which certifies that personnel .and laboratories .
performing the tests are qualified and the equipment and procedures io be used · ·
· . · comply with applicable standards. Any, laboratories to be usetf shall be specified::·.·
Acceptance/Rejection criteria and plans for implementing corrective measures ·
shall be addressed. . · · · · · · · · · ·
. A sbhedtle for managing submittals, testing, inspections;~d any other QA
function (including those of contractors, subwntractors, fabricatois;,suppliers;, ...
purchasing agents, ~ic:). that involve assuring quality workmanship, verifying , ..
· compliance with the plans and specifications, or any othei.-QC objectives. . .
Inspections shall verify rompliance wiib all environmental requirements and · .
include, but not be liinited to, air quality and emissions monitoring records and
waste disposal records, etc.
Reporting procedures and reporting forinat for QA/QC activities including such·
items as daily summary reports, schedule of data submissions, inspection data
sheets,'problem identification and corrective measures reports, evaluation reports,
acceptance reports, and final documentation.
A list of definable features of the work to be performed. A definable feature of
work is a task which is separate and distinct from other tasks and has separate ·.
control requirements.
Defendants shall demonstrate in advance and to EP A's satisfaction that each laboratory it may
use is qualified to conduct the priiposed work and nieets th.e requirements specified in Section
XV of the CD. EPA may require that Defendants submit detailed information to demonstrate
that the laboratory is qualified to conduct the worlc, including information on personnel
14
• •
. .
qualific~tions; equipment and m~terial specification; and laboratory anaiYses of pd'ormaricc
samples {blank and/or spike samples). In addition, EPA may require submi_ttal of data packag~
equivalent to those generated by the EPA Contract Laboratory Program (CLP). · ·· ·
The PSVP shall also spectfy' ihose tasks to be performed by Defendanis io demonstrate
compliance with the PerfoimanceStandards and a schedule-for the pcifoiroance of these tasks, .
including those tasks, e.g. site iosp.,;;ticins; with respectio O&M as set forth in the RA Work Plan, . . . . ·' . :. ' . , .
B. Five-Year Revie~
Because the selected remedy resulis in hazardous s~bsllfuces, pollutarits, or coniaminants
remaining at the site, according to CERCLA § 12 I ( c), a review of the.remedy shall.occur within
five years after the initiation of the remedialaction to assure tliat the remedy is protective of
huinan health and the environment. The Defendant shall prepare the Five-Year·Review Report .
in accordance with the Comprehensive Five-Year Review Guidance, June 2001,-(OSWERNo;
. 9355.7;038-P, EPA 540-R-01-007) and any subsequent revisi<ins or supplements to that .
guidance. · Five' Year Revi~w guidance documents can currently be foiuid at:
http://www.ep:i.gov/supcrfund/resources/5ycar/index.htin. The reportformat should foUow,the.
template found in Appendix E of the guidance, as well as include inforiruition 'ideriiificd in that
appendix. EPA must perform "'.'rtaiil aspects of the' Five-Year Review; iliclud.ing Community ,,;.
Involvement, Site Irispection, making the Protectiveni:ss Statement, and reviewfug an_d .·;
approving the report. The draft report shall be submitted to EPA at-least'six months prior toth,:'
approval d_ue date. The final report is due to be approved by the Waste Management Division,,
Director ( or designee) within five years from the initiation of the remedial action. . As stated. in
section 1.2.4 of the ComprehensiveFi~e-YearReview Guidance, fivecyear reviews will ''no
longer be required wheri no hazardous subsiances, polluiants, or contaotinarits ·remain on site
above levels that allow for unlimited use and unrestricted exposure.'' .
15
• •
REFERENCES
The following iist, alibough not comprehensive, comprises many of the ~egulations and gl!idance .
documents that apply to the RD/RA process .. Defendants shall re~iew these guidances and shall
use the inf<lrmation provided therein in performing the RD/RA and preparing all deliverables
under this SOW. .-· •. · · ·
I.
2.
3.
4.
5.
6.
7.
8.
9.
"National OH and Hazardous Substances Pollution Contingency Plan, Final Rule,"
Federal Register 40 CFR Part 300,Maich 8, 1990. . . . .
"Superfund Remedial Design and Remedial Actio!l Guidance," U.S. EPA, Office of
Emergeilcr, and Remedial Respof!Se, June 1986; OSWER Directive No._ 9355.O-4A.
"Interim final Guidance on Oversight 'ofRemediai Designs· and Remedial Actions
. Performed by P<ltentially Responsible Parties," HS. EPA, Office of Emergency and
· Remedial Response, February 14, 1990, OSWER Directive N'o .. 9355.5-01. • • • • • • • • • , • • • • • . • • • I • •
. "G~idance for Conducting Remedial .investigations and Feasibility StuditlS Under',
CERCLA, Interim Final," U.S. EPA, Office of Emergency and Remedial Response; ·
. October 1988, OSWER Directive No. 355.3c01. . . . . . . . . •·. . . .
. . · .... ·' '. .-. .
"A Compendium ofSuperfund.Field Operalions·Methods," Two-Vol~es; lJ.S, EPA;,-
. ()ffice of Emergency and Remedial Response, EP N540/P-87 /()0 I a, Au~ I 987, .
. OSWER Directive No. 9355.0-14. . . . .
"E~A NEIC Policies and Proc~dures Manual," EPA-330/9, 78-001 -i May 1978, ·.·
revised November .I 984.
"Data Quality Objectives for Remedial Response Activiiies," U.S. EPA, Office of
Emergency and Remedial Response and Office of W~ste Programs Enforcement, :
EPN540/G-87/003, March 1987, OS_WER Directive No. 9335.0-713. . -. . . . -. ' ,. . . ... ,• . .
"Guidelin;,. and Specifications for Preparing Quality Assurance Project Pians,0 U.S.
EPA, Oflice of Research and Development, Cincinnati, OH, QAMS-004/80,
. December 29, 1980.. ·--. . -
.. "Interim Guidelines_ and Specifications for Preparing Quality Assuran"'? Project
Plans," U.S. EPA, Office of Emergency and Remedial Response, QAMS..005/80,.
December 1980.
IO. . "Users Guide to the EPA Contract Laboratory Program," U.S. EPA, Sampie
Management Office, August 1982. · ·· ·
16
• •
11.. "Environmental Compliance Branch Standard Operating.Procedures and Quality
Assurance Manual," U.S. EPA Region IV, Environmental Services Division,
February i, 1991, (revised periodically),. · · · ·'
• • • f '
I 2: · "USEPA Contract Laborat~ry Program Siateinent of Work for Organics Analysis/'
U.S. EPA, Office of Emergency and Remedial Response, February 1988:
13: "USEPA Contract'Laboratory Program Statcme,111 ofWoi-k for Iriorganics Amilysis,"
U.S. EPA, Office of Emergency and Remedial Response, July 1988.
14: · "Quality in the Constructed Project: A Guideline for Owners, D~signers, and .
Constructors, Volume !/Preliminary Editioii'forTrial Use iuid Cciinment,'1 American
Society of Civil Engineers, May 1988. ·
· 15. • ,;Interim .Guidance on C':ompliance ·with Applicable or Relevant and' Appropriate .
Requirements," U.S. EPA; Office ofEii>ergency andRerriedial Response, July 9,
1987, OSWER Directive No. 9234.0-05. .
16. · ,;CERCLA C~mpliari~ with Other [,aws Mai.nual," Two Volumes;U.S~ EPA; Office
of Emergency and Remedial Response, August 1988 (Draft), OSWER Directive No.
9234.1-0 I and -02.
17. · "Guidance on Remedial Actions for Contaminated Ground Water aiSupc;rfund Sites,"
U.S. EPA, Office of Emergency and Remedial Response; (Draft), OSWERI>irective
No. 9283. 1-2 .
18. . "Guide for Conduc;ingTreatability .Studies Under CERCLA/' U.S. EPA: Office of.
Em_ergency and_ Remedial Response, Pre-publication Version._
19. "Health and Safety Requireinenis ofEmployees Employed 1n Field'Aqtivities,"U.S.
EPA, Office of Emergency and'Remedial Respcinse, July 12; 198( EPA Order No.
1440.2.
20. "Siaridard Operating Safety. Guides," U.S. EPA, Office of fanergency and Remedial .
Response, November I 984. · ·
21. "Standards for General Industry," 29 CFR Part 1910, Occupationa!Health and Safe~
Administration. · · · · ·
22. "Standards for the Construe.lion 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.
17
• •
24. ''.Occupational Safety and Health Guidance Manual for Hazardous Waste Site
Activities," National Institute of Occupational Safety and Health/Occupational Health
. and Safety Administration/United _States Coast Guard/ Environmental Protection
Agency, October 1985.
"25. "TL Vs; '.Threshold LimitValues and Biological Exposure Indices for 1987.-88,"
American· Corifererice of Governmental Industrial Hygienists .
. 26. ;'American National Standards Practices for Respiratory Prote6tio~," American
National Standards Institute Z88.2~1980, March 11, 1981.
27. "Quality in the Constructed Project -Volume I," American Society of Civil
Engineers, I 990. · · · · ·
28. "Comprehensive Five-Year Review Guidance," U.S. EPA, Office of E~ergency and
Remedial Response, June 2001, OSWER Directive No. 0355.7-03B-P. ·
29. Code ofFederal Regulations, Title 40 -Protection of the Environment,.Part 261 .24,
Toxicity Characteristic,.US Government Publishing Office, 2004,, , .
. 30. Code of Federal Regulations, Title 40 -Protection of the Environment,:Part 300, •
National Oil and Hazardous Substances Pollution Contingency Plan, Appendix. A, US
Government Publishing Office, 2004. ·
31. North Carolina Administrativ~ Code Title 15A; Subchapter .02B, State <if North
Carolina, 2004. · · "
32. "Q/VQC Guidance for Sampling and Analysis of Sediments, Water and Tissues f~r
Dredged Material Evaluations -EP A-823-B-95-00 I," US EP Ai April 1995.
33. "SW084~,Jest Methods for Evaluating Soli_d Waste," US EPA.
18 .
•
. SUMMARY OF THE MAjQR DELIVERABLES FOR THE
... REMEDIALACTION AT THE. . .
REASOR CHEMICAL COMPANY SUPERFUND SITE
DELIVERABLE
Monthly Progress Reports' as required by CD section X (2)
TASK! PROJECT PLANNING
No deliverables planned as part of Task I. · . .
TASK II REMEDIAL ACTION.
RA Work Plan (5)
Construction Health and Safety
Plan/Contingency Plari (3)
Operation and Maintenance Manual, if~pplicable (5)
Prefinal Construction Inspection Report, if applicable (5)
Final Construction Report(S)
Remedial Action Report ( 5) .
TASK III MonitOrinf!
Performance Standards Verification Piao (5)
Five Year Review Report (5)
EPA RESPONSE
·Review
Review andApprove
Review and Comment
· Review and __ Approve
Review and Approve
. Review and Approve
Review and Approv_e
Review and Approve
Review and Approve
• NOTE: The number in parenthesis indicates the number of copies to be submitted by
Defendants. 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 CD. The remainder of the copies shall
be sent to the RPM. All approved, final documents shall also be submitted to the RPM m -
electronic format, within 15 days of document approval notification. The reviews, comments
and approvals will be documented by letters from the RPM. ·
19
•
December 21, 2006
By E-Mail and By Federal Express
Ms. Samantha Urquhart-Foster
Remedial Project Manager
U.S. Environmental Protection Agency
61 Forsyth St., SW, Region IV
Atlanta, GA 30303
•
WILMERHALE
Jeffrey J. Davidson
+ 1 202 663 6037 (t)
+ 1 202 663 6363 (f)
jell rey .davidsonCwilmerhale, com
Re: Reasor Chemical Company Site. Castle Hayne, North Carolina; DOJ Case No. 90-11-3-
08268; EPA Site/Spill ID No. A424 -Title Successor Notice
Dear Samantha:
On behalf of Jane C. Sullivan and Hilda C. Dill (collectively, the "Owner Settling Defendants"),
we are providing a proposed notice to title successors to fulfill the requirements of paragraph
9(a) of the October 2006 Consent Decree entered into by and among the United States and
Jane C. Sullivan, Hilda C. Dill and Martin Marietta Materials, Inc.
Please feel free to contact us with any questions. For your information, we will be out of the
office the week of December 25 through 29, 2006, but in the office the following week.
Best regards,
.VlM,,y. . ~i. )«~
Jeffrey J.~dson
Marguerite E. McLarnb
Wilmer Cutler Pickering Hale and Dorr LLP
Counsel for Ms. Dill and Ms. Sullivan
Enclosure
cc (by E-mail only): Ms. Hilda Dill
Ms. Jane Sullivan
Mr. Scott Sullivan
Matthew Dill, Esq.
Yvonne Bailey, Esq.
William A. White, Esq.
Bonnie Sawyer, Esq.
Mr. David Mattison
Wilmer Cutler Pickering Hale and Dorr LLP, 1875 Pennsylvania Avenue NW, Washingcon, DC 20006
Baltimore Beijing B~rlin Boston Brussels London Munich New York Northern Virginia Oxford Palo Alto Waltham Washington
USIOOCS 5992S98vl
! • •
NOTICE TO SUCCESSORS IN TITLE
Notice is hereby given to all successors in title to the undersigned Jane C. Sullivan and Hilda C. Dill that the
property described on Exhibit "A" attached hereto includes all of the Reasor Chemical Company Superfund Site
(the "Site"), that the United States Environmental Protection Agency selected a remedy for the Site, and that
potentially responsible parties have entered into a Consent Decree requiring implementation of the remedy.
The Consent Decree was filed in the United States District Court for the Eastern District of North Carolina,
Southern Division, on December 8, 2006.
The name and civil action number of the case in which the Consent Decree was filed is United States of
America, Plaintiff, vs. Martin Marietta Materials, Inc., Jane C. Sullivan, and Hilda C. Dill, Defendants, 7:06-cv-
00154-FL. .
This the __ day of ________ ~ 200 __ .
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
Jane C. Sullivan
Hilda C. Dill
1, .,-----,-,---,--------• a Notary Public of _____ -c----,County, North
Carolina, hereby certify that Jane C. Sullivan and Hilda C. Dill personally came before me this day and
acknowledged the execution of the foregoing instrument.
Witness my hand and official seal or stamp, this the ___ day of ________ ~ 200_.
Notary Public
My commission expires:
USIDOCS 5992625vl
• •
Exhibit A
Lying and being in Cape Fear Township, New Hanover County, North Carolina, and being part of the Sullivan-
Dill tract as described in deed recorded in Book 1338 Page 1283 in the office of the Register of Deeds of New
Hanover County, and being more particularly described as follows:
Beginning at a point that is located the following bearings and distances from N.C. Grid Monument "Castle"
("Castle" having N.C. Grid Coordinates N =218,412.13 ft. E = 2,332,214.74 ft.) S 46-27-19 E 949.70 ft. to an
old iron located on the eastern right of way ofN.C. Highway 132 (200 ft. public right of way), said iron is the
northern most comer on N.C. Highway 132 of the JH Land, LLC tract (as described in deed recorded in Book
4149, Page 127 in the office of the Register of Deeds of New Hanover County), thence leaving said iron and
with a common line between said JH Land, LLC tract and the Burney tract (as described in deed recorded in
Book 1454 Page 1540 in the office of the Register of Deeds of New Hanover County) S 75-49-33 E 969.54 ft.
to an old iron, thence S 46-02-48 E 362.68 ft. to the beginning point: Proceed from said point of beginning and
with new lines N 12-38-14 E 440.27 ft., thence N 01-16-07 W 800.13 ft., thence S 84-08-39 E 797.96 ft., thence
N 08-29-35 E 88.84 ft., thence N 83-39-43 E 78.35 ft., thence S 43-35-49 E 89.41 ft., thence N 75-38-50 E
53.91 ft., thence N 50-21-12 E 179.99 ft:, thence S 28-02-13 E 109.29 ft., thence S 29-26-55 W 147.58 ft.,
thence S 20-06-50 E 131.21 ft., thence S 52-10-46 W 382.54 ft., thence S 07-26-09 W 142.98 ft., thence S 02-
15-32 W 303.07 ft., thence S 20-58-08 W 234.61 ft., thence S 67-09-27 W 45.39 ft., thence S 81-12-07 W
294.49 ft., thence S 82-21-30 W 257.82 ft., thence N 85-32-46 W 128.33 ft., thence N 76-39-29 W 109.85 ft. to
the point of beginning and containing 25.59 acres, more or less, according to the computations by Hanover
Design Services, P.A., in December 2006.
Together with an easement for ingress, egress, and access to and from the above 25.59 acre tract over and across
the following described 15 foot wide tract: Beginning at a point on the eastern right of way ofN.C. 132, said
point located S 42-45-26 E 1609.12 ft. from N.C. Grid Monument "Castle", said point also being the
southernmost comer on N.C. 132 of said JH Land LLC tract: Proceed from said point of beginning and with the
southern line of said JH Land tract S 75-23-14 E 498.76 feet to a point; thence N 81-35-46 E 241.21 ft. to a
point at the southwestern comer of said Sullivan-Dill tract, thence with the southern line of said Sullivan-Dill
tract N 81-35-46 E 65.19 ft. to a point, thence leaving said southern line N 12-38-14 E 118.53 ft. to a point in
the southern line of the above described 25.59 acre tract, thence with the southern line of said 25.59 acre tract
N76-39-29 W 15.00 ft. to the southwestern comer of said 25.59 acre tract, thence S 12-38-14 W I 08.42 ft. to a
point, thence S 81-35-46 W 51.88 ft. to a point in the western line of said Sullivan-Dill tract, thence S 81-35-46
W 241. 16 ft. to a point, thence N 75-23-14 W 514.96 ft. to a point on the eastern right of way ofN.C. 132,
thence with said right of way S 37-27-57 E 24.41 ft. to the point of beginning.
Together with a temporary easement, until September 30, 2007, for ingress, egress, and access to and from the
above 25.59 acre tract over and across the following described 60 foot wide tract: Beginning at a point that is
located at the above described northernmost comer of the JH Land, LLC tract: Proceed from said point of
beginning and with the line of the JH Land, LLC tract S 75-49-33 E 969.54 ft. to a point, thence S 75-49-33 E
208.54 ft. to a point in the western line of said Sullivan-Dill tract, thence S 75-49-33 E IOI. 41 ft. to a point in
the western line of the above described 29.59 acre tract, thence with said western line S 12-38-14 W 60.02 ft. to
a point, thence N 75-49-33 W 91.11 ft. to a point in the western line of the said Sullivan-Dill tract, thence N 75-
49-33 W 1114.18 ft. to a point on the eastern right of way ofN.C. 132, thence with said right of way N 37-27-
57 W 96.68 ft. to the point of beginning. The aforesaid 60 foot wide easement is a temporary easement for a
limited period of time, and shall expire and terminate automatically, without further act or deed, on September
30, 2007.
• •
All bearing are N.C. Grid NAD I 927.
•
December 14, 2006
By Federal Express
Ms. Samantha Urquhart-Foster
Remedial Project Manager
U.S. Environmental Protection Agency
Region IV --61 Forsyth St., SW
Atlanta, GA 30303
•
WILMERHALE
Jeffrey J. Davidso11
[phone] {1)
+ 1 202 663 6363 (I)
[e-mail]
Re: Reasor Chemical Company Site, Castle Hayne, North Carolina: DOJ Case No. 90-11-3-
08268: EPA Site/Spill ID No. A424 -Insurance Information
Dear Samantha:
On behalf of Jane C. Sullivan, Hilda C. Dill, and Martin Marietta Materials, Inc. (collectively,
the "Settling Defendants"), we are providing insurance information, in paper and electronic
formats, to fulfill the requirements of paragraph 60 of the October 2006 Consent Decree entered
into by and among the United States and the Settling Defendants.
Please feel free to contact us with any questions.
Best regards,
!,:~s:~1vt~
Marguerite E. McLamb
Wilmer Cutler Pickering Hale and Dorr LLP
Counsel for Ms. Dill and Ms. Sullivan
William A. White
Moore & Van Allen, PLLC
Counsel for Martin Marietta Materials, Inc.
Enclosures
cc (w/out encl; by E-mail only):
Ms. Hilda Dill
Ms. Jane Sullivan
Mr. Scott Sullivan
Matthew Dill, Esq.
Yvonne Bailey, Esq.
Bonnie Sawyer, Esq.
Mr. David Mattison
Wilmer Cutler Pickering Hale and Dorr UJ>, 1875 Pennsylvania Avenue NW, Washington, DC 20006
Baltimore Seiling Berlin Boston Brussels London Munich New York Northern Virginia Oxford Palo Alto Waltham Washington
USIDOCS S980538vl