NCD991278953_19890315_National Starch & Chemical Corp._FRBCERCLA C_Responsible Party Notification OU-1-OCR

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
MAJ; l 5 1989
4WD-SFB
CERI'IFIED MAIL
REnJRN RECEIPT REXlUESTED
Alex Sampson, Jr., Esquire
145 COURTLAND STREE'!"
ATLANTA, GEORGIA 3036?
National Starch and Chemical Corporation
10 Finderne Avenue
Post Office Box 6500
Bridgewater, New Jersey 08807
Re: National Starch Superfund Site
Salisbury, North Carolina
Dear Mr. Sampson:
In April 1985 the National Starch Site was proposed for the National
Priorities List. Subsequent to this, the Environmental Protection
Agency (EPA) notified you by way of a letter that pursuant to the
authority of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (CERC!.A), u.s.c. Section 9601 et. ~•
the Agency would spend public funds to =nduct a Remedial
Investigation and Feasibility Study (RI/FS), unless it determines
•that such an action would be properly performed by a responsible
party (RP).
You were informed in the aforementioned letter that responsible
parties, as defined in Section 107(a) of CERCI.A, 42 u.s.c. Section
9607, included =rent and former. o..m.ers of a site, and persons who
generated hazardous substances or were involved in the transpor.t,
treatment or. disposal of them at a site. The EPA apprised you at
this time that, based on data received during its investigation of
this site the Agency had determined that you are the =rent o..m.er
of the site and ther.efore a responsible party.
In December 1986, National Starch and Chemical Corporation entered
into an Administrative Order on Consent with EPA by which the
company agreed to perform an RI/FS. With EPA' s oversight, National
Starch has completed the Remedial Investigation and Feasibility
Study on Operable Unit #1 -Groundwater o:mtaminatation. A remedy
has been selected to address the release and threatened release of
hazardous substances, pollutants and =ntaminants which EPA has
documented in the groundwater at the site. The selected remedy and
the Agency's basis for choosing it have been meIOC>rialized in a
Record of Decision (00D).
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Once a r.emedy is selected for. the site, EPA, pur.suant to the
author.ity of the Compr.ehensive Envi.r.onmental Response, Compensation
and Liability Act, 42 u.s.c. Section 9601 et. ~• as amended, may
pr.oceed with the implementation of the r.emedy unless the Agency
determines that such an action will be pr.oper.ly per.formed by a
r.esponsible par.ty. As the EPA has deter.mined that you ar.e a
potentially responsible par.ty, befor.e the gover.nment under.takes
fur.ther. action, you ar.e being notified of your. potential liability
and ar.e being provided with an oppor.tunity to voluntar.ily:
1. Design and implement the r.emedy (RD/RA) which EPA selects and
deter.mines to be consistent with the National Contingency
Plan: and
2. Under.take any other. measures which may be necessary to abate
the hazar.ds posed by the site.
To facilitate an agr.eement with National Star.ch for. the per.for.mance
of the above-r.eferenced matter.s, EPA, pursuant to Section 122(e) of
CERCLA, 42 u.s.c. Section 9622(e), has deter.mined that a per.iod of
for.mal negotiation dur.ing which no r.esponse action will be taken by
the Agency will be beneficial. The Agency will consider. Mar.ch 27,
1989 as the beginning of the for.mal negotiation per.iod, and as is
provided for. by Section 122(e) of CERCLA, EPA will not take any
r.emedial action for. one hundr.ed twenty (120) days follC"1ing your.
r.eceipt of this notice, pr.ovided that National Star.ch submits within
sixty (60) days fr.om this date a wr.itten good faith proposal to
design and implement the selected r.emedy. Should EPA receive a
wr.itten good faith pr.oposal befor.e the conclusion of the initial
sixty (60) day rorator.ium, the mor.ator.ium per.iod may be extended for.
another. sixty (60) days to allaw EPA and National Star.ch to enter
into a fully negotiated judicially noticed consent decr.ee for. the
per.for.mance of an RD/RA. If a good faith pr.oposal is not r.eceived
by the conclusion of this sixty (60) day ror.ator.ium period, EPA may
design and implement the selected r.emedy. A good faith offer. is a
wr.itten pr.oposal which deronstr.ates the qualifications and
willingness to conduct and/or finance the Remedial Design and
Remedial Action (RD/RA). A good faith offer. for. the RD/RA should
include the follC"1ing:
1. A statement of National Star.ch's willingness to conduct or.
finance the RD/RA which is consistent with EPA' s ROD or which
provides a sufficient basis for. further negotiations in light
of EPA' s ROD:
2. A detailed "statement of wor.k" or. "wor.k plan" identifying hC"1
National Star.ch plans to proceed with the wor.k:
3.
4.
A deronstr.ation of your. technical capability to under.take the
RD/RA or. the name of the fir.m you expect will conduct the
wor.k: if no fir.m has been selected, the pr.ocess by which a
fir.m will be selected should be set for.th;
A demonstr.ation of your. capability to finance the RD/RA;
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A statement of your willingness to reimburse EPA for oversight
costs;
6. A discussion of National Starch's position on releases from
liability and reopeners to liability; and
7. The name, address, and phone number of the party who will
represent your company in negotiations.
You should notify EPA in writing within ten (10) calendar days of
receipt of this letter as to whether you wish to participate in
negotiations for undertaking or. financing the design and
implementation of the remedy. Due to the nature of the problem at
this site and the attendant legal ramifications, the Agency strongly
encourages you to submit a written response within the time
specified. Your letter should include the appropriate name,
addr.ess, and telephone number for further. contact with you, and it
should include a statement of your inter.est in performing or.
participating in the Remedial Design and Remedial Action. Where you
are already involved in discussions with the state or. local
authorities, engaged in voluntary action, or. involved in a lawsuit
regarding the site, you should continue that activity and report the
status of those discussions or those activities in your letter.
Please provide a copy of your letter to any other. parties involved
in those discussions.
In addition, EPA has expended at least $217,114.00 ta,.,ar.d response
costs at the site and hereby requests your reimbursement of such
costs. Payment should be made into the Hazardous SUbstances
Super.fund by certified or cashier's check payable to:
u.s.E.P.A, Region IV
Attn: Super.fund Accounting
P.O. Box 100142
Atlanta, GA 30384
A copy of the check and your transmittal letter along with your
response to this letter. should be sent to:
Ms. Giezelle s. Bennett
super.fund Project Manager
u.s. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
To facilitate negotiations, enclosed is a draft consent decree for
the performance of the RD/RA. If you need further. information, Ms.
Bennett can be reached at [phone]. Any legal questions
should be directed to Mr. Reuben Bussey at [phone].
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We hope you give this matter your iunnediate attention since under
CERCT.A, and other laws, responsible parties may be liable for all
monies expended by the government to take corrective actions at a
site.
Sincerely yours,
~MT~
Patdck M. Tobin
Director
Waste Management Division
Enclosure
cc: Lee Crosby, NCCBR
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF _______ _
UNITED STATES OF AMERICA and )
STATE OF North Carolina )
)
Plaintiffs, )
)
V • )
)
National Starch and Chemical Corp)
)
Defendant ) ______________ )
DIVISION
CIVIL ACTION NO.:
CONSENT DECREE
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II.
I III.
I IV
v.
I VI.
VII.
I VII.
n IX.
x.
D XI.
I XII.
XIII.
I XIV.
xv.
I XVI.
I XVII.
XVIII.
I XIX.
xx.
I XXI.
XXII.
I XXIII.
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INDEX
Background. 1
Jurisdiction 4
Parties Bound. 4
Definitions . . . . 5
General Provisions. 8
Performance of the Work by Settling Defendants. 11
U.S. EPA Periodic Review to Assure Protection
of Human Health and Environment. . . . . . . . 14
Additional Work .. 15
Quality Assurance, Sampling. 16
Access . . . . . . 18
Reporting Requirements 20
Submissions Requiring Agency Approval. 21
Remedial Project Manager/Project Coordinators. 22
Assurance of Ability to Complete Work. 23
Trust Fund.
Certification of Completion.
Endangerment and Future Response
Reimbursement of Response Costs.
Indemnification and Insurance.
Force Majeure ...
Dispute Resolution
Stipulated Penalties
Covenants Not To Sue By Plaintiffs
24
26
27
28
29
31
33
38
40
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XXIV.
XXV.
XXVI.
XXVII.
XXVIII.
XXIX.
XXX.
XXXI.
XXXII.
XXXIII.
Covenants by Settling Defendant
Access to Information.
Retention of Records .
Notices and Submissions.
Effective and Termination Dates.
Retention and Jurisdiction
Modification .•..
Community Relations:
Lodging and Opportunity for Public Comment
Signatories ........... .
44
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46
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ______ _
DIVISION
UNITED STATES OF AMERICA and )
STATE OF North Carolina )
)
Plaintiffs, )
)
V • ) CIVIL ACTION NO.:
)
National Starch and Chemical Corp)
)
Defendant ) ________________ )
CONSENT DECREE
I . BACKGROUND
The United States of America ("United States"), on behalf of
the Administrator of the United States Environmental Protection
Agency ("EPA"), filed on _____ , 1989, a Complaint in this matter
pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 u.s.c. §9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No.
99-499, 100 Stat .. 1613 ( 1986 ( ( hereinafter "CERCLA");
In response to a release or a substantial threat of a
release of a hazardous substance at or from the Site, the Settling
Defendant commenced in December, 1986, a Remedial Investigation and
Feasibility Study ("RI/FS") for the Site pursuant to 40 C.F.R.
§300.68;
The Settling Defendant completed a Remedial Investigation
("RI") Report on June 21, 1988, and EPA completed a Feasibility Study
("FS") Report on September 30, 1988;
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In accordance with Section 121(f)(l)(F) of CERCLA, 42 u.s.c.
§962l(f)(l)(F), EPA notified the State of North Carolina on March_,
1989 of negotiations with PRPs regarding the scope of the remedial
design and remedial action for the Site, and EPA has provided the
State with an opportunity to participate in such negotiations and be
a party to any settlement;
On September 3, 1988, pursuant to Section 117 of CERCLA, 42
u.s.c. §9617, EPA published notice of the completion of the FS and of
the proposed Record of Decision adopting a plan for remedial action
and provided opportunity for public comment.
The decision by EPA on the final remedial action plan is
embodied in a final Record of Decision ("ROD"), executed on September
30, 1988 to which the State has given its concurrence.
Pursuant to Section 12l(d)(l), EPA, the State, and Settling
Defendant ("the Parties") agree that the remedial action plan adopted
by EPA and embodied herein will attain a degree of cleanup of waste
materials, hazardous substances, pollutants and contaminants released
into the environment and control of further releases which at a
minimum assures protection of human health and the environment at the
Site;
The Parties recognize, and the Court by entering this
Consent Decree finds, that implementation of this Consent Decree will
expedite the cleanup of the Site, will avoid prolonged and
complicated litigation between the Parties, and that entry of this
Consent Decree is therefore in the public interest.
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NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II. JURISDICTION
This Court has jurisdiction over the subject matter of these
actions pursuant to 28 u.s.c. §§ 1311, 1345; 42 u.s.c. §§ 9606, 9607,
and 9613(b); and pendent jurisdiction over the claims asserted by the
State arising under the laws of North Carolina. This Court also has
personal jurisdiction over the Settling Defendant. For purposes of
this Consent Decree and the underlying complaint, Settling Defendant
waives all objections and defenses it may have to jurisdiction of the
Court or to venue in this District. The Complaint states claims
against the Settling Defendant upon which relief may be granted.
Settling Defendant shall not challenge this Court's jurisdiction to
enter and enforce this Consent Decree.
III. PARTIES BOUND
This Consent Decree applies to and is binding upon the
undersigned parties and their successors, assigns and contractors.
The undersigned representative of each party to this Consent Decree
certifies that he or she is fully authorized by the party or parties
whom she or he represents to enter into the terms and conditions of
the Consent Decree and to execute and legally bind that party to it.
The Settling Defendant shall provide a copy of this Consent Decree to
any contractor and subcontractor hired to perform the work required
by this Consent Decree and shall condition all contracts and
subcontracts entered into hereunder upon performance of the work in
accordance with the terms of this Consent Decree.
IV. DEFINITIONS
Unless noted to the contrary, the terms of this Consent
Decree shall have the meaning assigned to those terms by the
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Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. § 9601 et seq. Whenever the terms
listed below are used in this Consent Decree and the Exhibits and
Appendix attached hereto, the following definitions shall apply:
A. "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 u.s.c. § 9601
et seq.
B. "Day" shall mean a calendar day unless expressly stated to be
a working day. "Working day" shall mean a day other than a Saturday
Sunday, or legal holiday. In computing any period of time under this
Consent Decree, where the last day would fall on a Saturday, Sunday,
or legal holiday, the period shall run until the end of the next
working day.
C. "EPA" shall mean the United States Environmental Protection
Agency.
D. NCDHR shall mean the North Carolina Department of Human
Resources.
E. "National Contingency Plan" or "NCP" shall mean the National
Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42
u.s.c. § 9605, codified at 40 C.F.R. Part 300, including any
amendments thereto.
F. "Paragraph" shall mean a portion of this Consent Decree
identified by an arabic numeral.
G. "Parties" shall mean the United States, the State of North
Carolina, and the Settling Defendant.
H. "Plaintiffs" shall mean the United States and the State of
North Carolina and their agencies and departments.
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I. "Record of Decision" or "ROD" shall mean the EPA Record of
Decision relating to the Site signed on September _30, 1988
by the Regional Administrator, EPA Region IV, and all attachments
thereto.
J. "Response Costs" shall mean any costs incurred by Plaintiffs
pursuant to 42 U.S.C. § 9601 et seq.
K. "Scope of Work" or "SOW" shall mean the scope of work for
implementation of the remedial design, remedial action, and operation
and maintenance of the remedial action at the Site, as set forth in
Appendix 2 .
L. "Section" shall mean a portion of this Consent Decree
identified by a roman numeral and including one or more paragraphs.
M. "Settling Defendant" shall mean National Starch and Chemical
Corporation.
N. "Site" shall mean the "facility" as that term is defined at
Section 101(9) of CERCLA, 42 u.s.c. §9601(9), where disposal of
hazardous substances was conducted by National Starch and Chemical
Corporation. The facility is located at Cedar Springs Road within
the city limits of Salisbury, Rowan County, North Carolina, as shown
on the map attached as Appendix The Site is comprised of a 5-acre
tract of land that contained trenches used for the disposal of
approximately 350,000 gallons of waste water.
0. "State" shall mean the State of North Carolina.
P. "SWDA" shall mean the Solid Waste Disposal Act, as amended,
42 u.s.c. §§ 6901 et seq.
Q. "United States" shall mean the United States of America,
including the United States Environmental Protection Agency.
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R. "Waste Material" shall mean (1) any substance meeting the
definition provided in Section 101(14) of CERCLA, 42 u.s.c.
§9601 ( 14); ( 2) any "pollutant" or "contaminant" under Section 101 ( 33)
of CERCLA, 42 u.s.c. § 9601(33); (3) any "hazardous waste" under
Section 1004(5) of SWDA, 42 u.s.c. § 6903(5); and (4) any "hazardous
material" under North Carolina General Statutes §130 -290.
s. "Work" shall mean activities required by the Consent Decree,
including the design, construction and implementation, in accordance
with Section VI, hereof, of the tasks described in the Scope of Work,
and any schedules or plans required to be submitted pursuant thereto.
V. GENERAL PROVISIONS
1. Objectives of the Parties
The objectives of the parties in entering into this Consent
Decree are to protect public health, welfare and the environment from
releases or threatened releases of waste materials from the Site by
the investigation, development, design and implementation of remedial
and monitoring programs by the Settling Defendant.
2. Effect of Settlement
The execution of this Consent Decree is not an admission of
liability with respect to any issue dealt with in this Consent Decree
nor is it an admission or denial of the factual allegations set out
in the complaints.
3. Commitment of Plaintiffs and Settling Defendant
a. Settling Defendant agrees to finance and perform all
remedial activities at the Site, including the remedial design and
remedial action work· set forth in Section VI, and to reimburse the
United States for response costs as provided herein.
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b. The Work set forth in Section VI shall be completed in
accordance with the standards, specifications and within the time
periods as prescribed in Section VI and in the SOW, which is
incorporated herein by reference.
d. Settling Defendant shall assume any and all liability
arising from or relating to its acts or omissions in the performance
of the Work or its failure to perform fully or complete the
requirements of this Consent Decree.
4. Permits and Approvals
a. All activities undertaken by the Settling Defendant
pursuant to this Consent Decree shall be undertaken in accordance
with the requirements of applicable, or relevant and appropriate
laws, as required by§ 12l(d) of CERCLA. The United States and the
State have determined that the obligations and procedures authorized
under this Consent Decree are consistent with the authority of the
United States and the State under applicable law to establish
appropriate remedial measures for the Site.
b. Settling Defendant shall obtain all permits or approvals
necessary for the Work and shall submit timely applications and
requests for any such permits and approvals.
c. Settling Defendant shall include in all contracts or
subcontracts entered into for work required under this Consent
Decree, provisions stating that such contractors or subcontractors,
including their agents and employees, shall perform all activities
required by such contracts or subcontracts in compliance with all
applicable laws and regulations.
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d. This Consent Decree is not, and shall not be construed
to be, a permit issued pursuant to any federal or state statute or
regulation.
5. Conveyance of the Site
a. Within thirty days of approval by the Court of this
Decree, National Starch and Chemical Corporation as Settling
Defendant and owner of the Site shall record a copy of this Decree
with the Recorder's Office, Rowan County, State of North Carolina.
b. The Site as described herein may be freely alienated,
provided that at least sixty (60) days prior to the date of such
alienation, the Owner Settling Defendant notifies Plaintiffs of such
proposed alienation, the name of the grantee, a copy of the proposed
contract between the grantor and grantee, and a description of the
Settling Defendant's obligations under this Consent Decree, if any,
to be performed by such grantee. In the event of such alienation,
all of Settling Defendant's obligations pursuant to this Decree shall
continue to be met by Settling Defendant and, subject to approval by
the United States, the grantee.
c. Any deed, title or other instrument of conveyance
regarding the Site shall contain a notice that the Site is the
subject of this Consent Decree, setting forth the style of the case,
the case number, and the Court having jurisdiction herein.
VI. PERFORMANCE OF THE WORK
6. All remedial design work to be performed by Settling
Defendant pursuant to this Consent Decree shall be under the
direction and supervision of a qualified contractor. Prior to the
initiation of remedial design work for the Site, the Settling
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Defendant shall notify EPA and the State, in writing, of the name,
title, and qualifications of any supervising contractor proposed to
be used in carrying out the remedial design work to be performed
pursuant to this Consent Decree. Selection of any such contractor
shall be subject to approval by U.S. EPA. U.S. EPA shall notify the
Settling Defendant, in writing within 14 calendar days of receipt of
the notice of its approval or disapproval. If EPA disapproves of the
selection of any supervising contractor, the Settling Defendant shall
submit a list of contractors to EPA within 30 days of receipt of
U.S. EPA's disapproval of the contractor previously selected. EPA
shall within 14 calendar days of receipt of the list, provide written
notice of the names of the contractor that it approves. The Settling
Defendant may at its election select any one from that list.
Settling Defendant shall notify EPA of the name of the contractor
selected within 21 calendar days of EPA's notice of the approved
contractor.
7. All remedial action work to be performed by the Settling
Defendant pursuant to this Consent Decree shall be under the
direction and supervision of a qualified contractor. Prior to the
initiation of remedial action work at the Site, the Settling
Defendant shall notify EPA and the State, in writing, of the name,
title, and qualifications of the proposed supervising contractor, and
the names of principal contractors and/or subcontractors proposed to
be used in carrying out the work to be performed pursuant to this
Consent Decree. Selection of any such contractor and/or
subcontractor shall be subject to approval by the EPA in accordance
with the provisions of Paragraph 6.
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8. Appendix __ to this Consent Decree provides a Scope of Work
(SOW) for the completion of remedial design and remedial action at
the Site. This Scope of Work is incorporated into and made an
enforceable part of this Consent Decree.
9. The following work shall be performed by Settling Defendant:
a. Within 30 calendar days of the effective date of this
Consent Decree, Settling Defendant shall submit for review,
modification and/or approval by EPA, in consultation with the State,
a work plan for the remedial design and remedial action at the Site
(RD/RA Work Plan). The RD/RA Work Plan shall be developed in
conformance with the ROD, the sow, EPA Superfund Remedial Design and
Remedial Action Guidance and any additional guidance documents
provided by EPA.
b. The RD/RA Work Plan submittal shall include, but not be
limited to, a schedule for submittal of the following project plans:
(1) a sampling and analysis plan; (2) a health and safety/contingency
plan; (3) a plan for satisfaction of permitting requirements; (4) a
quality assurance project plan; (5) a groundwater monitoring plan;
and (6) an operations and maintenance plan. The RD/RA Work Plan
shall also include a schedule for implementation of the RD/RA tasks
identified in the SOW and submittal of RD/RA reports.
c. Settling Defendant shall implement the work detailed in
the RD/RA Work Plan upon approval of the Work Plan by EPA pursuant to
the procedures in Section XII. Unless otherwise directed by EPA, the
Settling Defendant shall not commence field activities until approval
by EPA of the RD/RA Work Plan. As approved by EPA, the RD/RA Work
Plan shall be deemed incorporated into and made an enforceable part
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of this Consent Decree. All work shall be conducted in accordance
with the National Contingency Plan, the EPA Superfund Remedial Design
and Remedial Action Guidance, and the requirements of this Consent
Decree, including the standards, specifications and schedule
contained in the RD/RA Work Plan.
10. The Parties acknowledge and agree that neither the SOW nor
the RD/RA Work Plan constitutes a warranty or representation of any
kind by Plaintiffs that the SOW or RD/RA Work Plan will achieve the
performance standards set forth in the ROD and in paragraph 12 below
and shall not foreclose Plaintiffs from seeking performance of all
terms and conditions of this Consent Decree, including the applicable
performance standards.
11. The Work performed by Settling Defendants pursuant to this
Consent Decree must, at a minimum, achieve the following
performance standards and requirements for groundwater in parts per
billion (ppb):
Arsenic l0ppb
Benzene 5 ppb
Bis(2-chloroethyl ether 5 ppb
Bromodichloromethane 5 ppb
Chloroform 5 ppb
1,2-dichloroethane 5 ppb
1,1-dichloroethylene 7 ppb
Methylene chloride 5 ppb
1,1,2-trichloroethane 5 ppb
Trichloroethylene 5 ppb
Vinyl chloride 2 ppb
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Acetone 3500 ppb
Barium 1000 ppb
Beryllium 17.5 ppb
Cadmium 10 ppb
Chromium 50 ppb
1,2-Dichloropropane 6 ppb
Ethyl benzene 3500 ppb
Manganese 7700 ppb
Nickel 350 ppb
4-Nitrophenol 350 ppb
Selenium 10 ppb
Toluene 2000 ppb
Xylenes 350 ppb
Zinc 7350 ppb
VII. U.S. EPA PERIODIC REVIEW TO ASSURE PROTECTION
OF HUMAN HEALTH AND ENVIRONMENT
12. To the extent required by Section 12l(c) of CERCLA, 42
I u.s.c. §962l(c), and any applicable regulations, EPA shall review the
remedial action at the Site at least every five (5) years after the
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entry of this Consent Decree to assure that human health and the
environment are being protected by the remedial action being
implemented. Prior to certification of completion of the Work,
Settling Defendant shall conduct the requisite studies,
investigations, or other response actions as determined necessary by
EPA in order to permit EPA to conduct the review of the Site required
by Section 12l(c) of CERCLA. If upon such review, EPA determines
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prior to the certification of the completion of the Work that further
response action is appropriate at the Site in accordance with Section
104 or 106, then, Settling Defendant shall implement such action.
Any dispute regarding the necessity for or scope of such further
response action shall be subject to judicial review pursuant to the
dispute resolution provisions in Section XXI hereof to the extent
permitted by, and in accordance with, Section 113 of CERCLA, 42
u.s.c. §9613, if U.S. EPA seeks to require the Settling Defendant to
undertake the additional work.
13. Settling Defendant shall be provided with an opportunity to
confer with EPA on any response action proposed during the EPA,s
5-year review process and to submit written comments for the record
during the public comment period. After the period for submission of
written comments is closed, the Regional Administrator, EPA Region
IV, shall in writing, determine if further response action is
appropriate.
VIII. ADDITIONAL WORK
14. In the event that EPA or the Settling Defendant determines
that additional response work, including additional response work
identified during the CERCLA Section 121(c) review process, is
necessary to meet the Performance or Clean-up Standards described in
Section VI above or to protect human health or the environment,
notification of such additional work will be provided to the Project
Coordinator for the other party.
15. Any additional work determined to be necessary by Settling
Defendant is subject. to approval by EPA.
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16. Any additional work determined to be necessary by Settling
Defendant and approved by EPA, or determined to be necessary by EPA
to meet the Performance or Clean-up Standards shall be completed by
Settling Defendant in accordance with the standards, specifications,
and schedules approved by EPA.
17. a. Unless otherwise stated by EPA, within 30 days of
receipt of notice by EPA that additional work is necessary, the
Settling Defendant shall submit for approval by EPA, in consultation
with the State, a work plan for the additional work. The plan shall
conform to the requirements in Paragraphs 9(a) and (b). Upon
approval pursuant to the procedures set forth in Section XII,
Settling Defendant shall implement the plan for additional work in
accordance with the schedule contained therein.
IX QUALITY ASSURANCE, SAMPLING
18. Settling Defendant shall use quality assurance, quality
control, and chain of custody procedures in accordance with EPA's
"Interim Guidelines and Specifications For Preparing Quality
Assurance Project Plans" (QAM-005/80) and subsequent amendments to
such guidelines upon notification to the Settling Defendant of such
amendments by EPA. Prior to the commencement of any monitoring
project under this Consent Decree, the Settling Defendant shall
submit Quality Assurance Project Plan(s) ("QAPP") to EPA and the
State that is consistent with the Remedial Action Plan (RAP) and
applicable guidelines. EPA, after review of Settling Defendant's
QAPP(s) and the State's comments thereon, will notify Settling
Defendant of any required modifications, conditions approval,
disapproval, or approval of the QAPP(s). Upon notification of
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disapproval or any need for modifications, Settling Defendant shall
make all required modifications in the QAPP(s). Sampling data
generated consistent with the QAPP(s) shall be admissible as
evidence, without objection, in any proceeding under Paragraph XXI of
this Decree. Settling Defendant shall assure that EPA personnel or
authorized representatives are allowed access to any laboratory
utilized by Settling Defendant in implementing this Consent Decree.
In addition, Settling Defendant shall have a designated laboratory
analyze samples submitted by EPA for quality assurance monitoring.
19. Settling Defendant shall make available to EPA and the State
the results of all sampling and/or tests or other data generated by
Settling Defendant with respect to the implementation of this Consent
Decree, and shall submit these results in monthly progress reports as
described in Paragraph XI of this Consent Decree.
20. At the request of EPA or the State, Settling Defendant shall
allow split or duplicate samples to be taken by EPA, the State and/or
their authorized representatives, of any samples collected by
Settling Defendant pursuant to the implementation of this Consent
Decree. Settling Defendant shall notify U.S. EPA and the State not
less than fourteen (14) days in advance of any sample collection
activity. In addition, U.S. EPA and the State shall have the right
to take any additional samples that U.S. EPA or the State deem
necessary.
21. Notwithstanding any provision of this Consent Decree, the
United States hereby retains all of its information gathering,
inspection and enforcement authorities and rights under CERCLA, RCRA
and any other applicable statute or regulations.
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x. ACCESS
22. From the date of entry of this Consent Decree until EPA
certifies completion of the Work pursuant to Section XV, the United
States and its representatives, including EPA and its contractors,
shall have access at all times to the Site and any property to which
access is required for the implementation of this Consent Decree, to
the extent access to the property is controlled by or available to
Settling Defendant, for the purposes of conducting any activity
authorized by or related to this Consent Decree, including, but not
limited to:
a. Monitoring the Work or any other activities taking place
on the property;
b. Verifying any data or information submitted to the
United States;
c. Conducting investigations relating to contamination at
or near the Site;
d. Obtaining samples;
e. Assessing the need for or planning and implementing
additional response actions at or near the Site; and
f. Inspecting and copying records, operating logs,
contracts, or other documents required to assess Settling Defendant's
compliance with this Consent Decree.
23. To the extent that the Site or any other area where work is
to be performed under this Consent Decree is owned or controlled by
persons other than Settling Defendant, Settling Defendant shall use
best efforts to secure from such persons access for Settling
Defendant, as well as for EPA and the State and authorized
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representatives or agents of EPA and the State, as necessary to
effectuate this Consent Decree. For purposes of this paragraph "best
efforts" includes, but is not limited to, seeking judicial assistance
and the payment of money in consideration of access. If access is
not obtained within forty-five (45) days of the date of entry of this
Consent Decree, Settling Defendant shall promptly notify the United
States. The United States may thereafter assist Settling Defendant
in obtaining access. Settling Defendant shall, in accordance with
Section XVIII, herein, reimburse the United States for all costs
incurred by it in obtaining access.
24. Notwithstanding any provision of this Consent Decree, the
United States retains all of its access authorities and rights under
CERCLA, RCRA and any other applicable statute or regulations.
XI. REPORTING REQUIREMENTS
25. Settling Defendant shall submit to EPA and the State written
monthly progress reports which: (1) describe the actions which have
been taken toward achieving compliance with this Consent Decree
during the previous month; (2) include all results of sampling and
tests and all other data received by Settling Defendant during the
course of the work; (3) include all plans and procedures completed
under the RD/RA Work Plan during the previous month; (4) describe all
actions, data and plans which are scheduled for the next month and
provide other information relating to the progress of construction as
is customary in the industry; (5) include information regarding
percentage of completion, unresolved delays encountered or
anticipated that may affect the future schedule for implementation of
RD/RA Scope of Work or Work Plan, and a description of efforts made
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to mitigate those delays or anticipated delays. These progress
reports are to be submitted to EPA and the State by the tenth day of
every month following the effective date of this Consent Decree.
26. If the date for submission of any item or notification
required by this paragraph falls upon a weekend or state or federal
holiday, the time period for submission of that item or notification
is extended to the next working day following the weekend or holiday.
27. Upon the occurrence of any event during performance of the
work which, pursuant to Section 103 of CERCLA, requires reporting to
the National Response Center, the Settling Defendant shall promptly
orally notify the EPA Remedial Project Manager ("RPM") or On-Scene
Coordinator ("OSC"), or in the event of the unavailability of the EPA
RPM, the Emergency Response Section, Region IV, United States
Environmental Protection Agency, in addition to the reporting
required by Section 103. Within 20 days of the onset of such an
event, the Settling Defendant shall furnish to Plaintiffs a written
report 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, the Settling Defendant shall submit a
report setting forth all actions taken to respond thereto.
XII. SUBMISSIONS REQUIRING AGENCY APPROVAL
28. Upon receipt of any plan, report or other item which is
required to be submitted for approval pursuant to this Consent
Decree, EPA, in consultation with the State, shall either: (1)
approve the submission; (2) disapprove the submission, notifying
Settling Defendant of deficiencies; or (3) modify the submission to
cure the deficiencies.
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29. In the event of approval or modification, Settling Defendant
shall proceed to take any action required by the plan, report, or
other item, as approved or modified.
30. Upon receipt of a notice of disapproval, Settling Defendant
shall, within thirty (30) days, correct the deficiencies and resubmit
the plan, report, or other item for approval. Notwithstanding the
notice of disapproval, Settling Defendant shall proceed to take any
action required by any nondeficient portion of the submission.
31. If, upon resubmission, the plan, report, or item is not
approved, Settling Defendant shall be deemed to be in violation of
this Consent Decree.
XIII. REMEDIAL PROJECT MANAGER/PROJECT COORDINATORS
32. Within twenty (20) calendar days of the effective date of
this Consent Decree, Settling Defendant, the State and EPA shall
notify each other, in writing, of the name, address and telephone
number of the designated Project Coordinator and an Alternate Project
Coordinator, and the Remedial Project Manager/On-Scene Coordinator
(RPM/OSC) and Alternate RPM/OSC. If a Project Coordinator, RPM or
OSC initially designated is changed, the identity of the successor
shall be given to the other parties within 5 working days before the
changes.
33. Plaintiffs may designate other representatives, including
EPA and State employees, and federal and state contractors and
consultants, to observe and monitor the progress of any activity
undertaken pursuant to this Consent Decree. The RPM/OSC shall have
the authority lawfully vested in an RPM/OSC by the National
Contingency Plan, 40 C.F.R. Part 300. In addition, the RPM/OSC shall
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have authority consistent with the National Contingency Plan, to
halt, conduct, or direct any work required by this Consent Decree
and, to take any necessary response action when he determines that
conditions at the Site may present an imminent and substantial
endangerment to public health or welfare or the environment.
Settling Defendant shall also designate a Project Coordinator who
shall have primary responsibility for implementation of the Work at
the Site.
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK
34. Settling Defendant shall demonstrate their ability to
complete the Work and to pay all claims that arise from the
performance of the work by obtaining, and presenting to EPA and the
State for approval within thirty (30) days of the entry of this
Consent Decree, one of the following: (1) performance bond; (2)
letter of credit; (3) guarantee by a third party; or (4) internal
financial information have sufficient net assets, to make it
unnecessary to require additional financial assurances. Plaintiffs
will have ninety (90) days from the receipt of the information or
other assurance to make a determination of the adequacy of the
financial assurance and to communicate that determination to Settling
Defendant. If Settling Defendant seeks to demonstrate ability to
complete the Work by means of internal financial information, it
shall resubmit such information annually, on the anniversary of the
effective date of this Consent Decree. In the event that Plaintiffs
determine that such financial assurance is inadequate, Settling
Defendant shall, within thirty (30) days of receipt of notice of
Plaintiffs, determination, obtain and present to EPA and the State
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for approval one of the other three forms of financial assurance
listed above.
XV. TRUST FUND
35. Within ten (10) days of the entry of this Consent Decree,
Settling Defendant shall present to EPA and the State for approval a
fully executed trust agreement (the "Trust Agreement") establishing
the National Starch and Chemical Corporation Site Trust Fund (the
"Trust Fund"). The Trust Agreement shall confer upon the Trustee all
powers and authorities necessary to finance the obligations of the
Settling Defendant under this Consent Decree. Money paid into the
Trust Fund by Settling Defendant shall be used solely to pay proper
and necessary expenses pursuant to this Consent Decree, including
expenses of administering the Trust. Such payments shall not be
construed as fines, penalties, or sanctions, except in the case of
payments of stipulated penalties pursuant to Section XXII.
36. Notwithstanding anything in the Trust Agreement, Settling
Defendant shall be responsible for compliance with this Consent
Decree. Settling Defendant shall provide EPA and the State with
written notice at least ten (10) days in advance of any proposed
change in the Trust Agreement or of the Trustee.
37. The Trust Agreement shall provide that the Trustee will,
within sixty (60) days of his appointment and every ninety (90) days
thereafter, submit to Settling Defendant, EPA, and the State
financial reports that include cash flow projections showing the
level of funds that will be necessary to pay for the obligations of
Settling Defendant under this Consent Decree for the next one hundred
eighty (180) days and the amount of money currently in the Trust
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Fund. If the amount of money in the Trust Fund is less than the
amount projected in the Trustee's report to be needed for the next
one hundred eighty (180) days, Settling Defendant shall, within
thirty (30) days of issuance of the Trustee's report, deposit into
the Trust Fund amounts sufficient to bring the level of the Trust
Fund up to that projected amount. Settling Defendant shall in any
event make payments to the Trust Fund when and to the extent
necessary to ensure the uninterrupted progress and timely completion
of the Work. Any money remaining in the Trust Fund upon
certification by Plaintiffs that all of the Work has been
satisfactorily completed shall be returned to Settling Defendant in
accordance with the terms of the Trust Agreement.
XVI. CERTIFICATION OF COMPLETION
38. Within ninety (90) days after ~ettling Defendant concluded
that Phase I has been fully performed, Settling Defendant shall so
notify the United States, EPA, and the State by submitting a written
report by a registered professional engineer certifying that all such
activities have been completed in full satisfaction of the
requirements of this Consent Decree. If EPA determines that Phase I
or any portion thereof has not been completed in accordance with this
Consent Decree, EPA shall notify Settling Defendant in writing of the
work that must be don~ to complete Phase I and shall set forth in the
notice a schedule for performance of the work. Settling Defendant
shall perform all work described in the notice in accordance with the
specifications and schedules established therein.
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39. If EPA concludes, following the initial or any subsequent
notification of completion by Settling Defendant and after
consultation with the State, that Phase I has been fully performed in
accordance with this Consent Decree, EPA shall so certify in writing
to Defendant. This certification shall constitute the "certification
of completion of Phase I" for purposes of this Consent Decree,
including Section XXII (Plaintiffs, Covenants Not to Sue).
40. Within ninety (90) days after Settling Defendant concluded
that the Work has been fully performed, Settling Defendant shall so
notify the United States, EPA, and the State by submitting a written
report by a registered professional engineer certifying that all such
activities have been completed in full satisfaction of the
requirements of this Consent Decree. EPA shall require such
additional work as may be necessary to complete the Work or EPA shall
issue written certification that the Work has been completed, as
appropriate, in accordance with the procedures set forth in
Paragraphs A and B for certification of completion of Phase I.
XVII. ENDANGERMENT AND FUTURE RESPONSE
41. In the event of any action or occurrence during the
performance of the Work which causes or threatens a release of a
hazardous substance, or which may present an imminent and substantial
endangerment to public health or welfare or the environment, Settling
Defendant shall immediately take all appropriate action to prevent,
abate, or minimize such release or endangerment, and shall
immediately notify the RPM, or, if the RPM is unavailable, the EPA
Emergency Response Unit, Region IV. Settling Defendant shall take
such action in accordance with all applicable provisions of the
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Health and Safety/Contingency Plan developed pursuant to the SOW and
approved by Plaintiffs. In the event that Settling Defendant fails
to take appropriate response action as required by this Section and
EPA and/or the State take such action instead, Settling Defendant
shall reimburse all costs of the response action not inconsistent
with the NCP. Payment of such response costs shall be made in the
manner described in paragraphs 39 and 40 of Section XVII, as
applicable, within thirty (30) days of Settling Defendant's receipt
of demand for payment and an appropriate accounting of the costs
incurred.
42. Nothing in the preceding paragraph shall be deemed to limit
the power and authority of the United States, the State, or this
Court to take, direct, or order all appropriate action to protect
human health and the environment or to prevent, abate, or minimize an
actual or threatened release of hazardous substances on, at, or from
the Site.
XVIII. REIMBURSEMENT OF RESPONSE COSTS
43. Within fifteen (15) days of the entry of this Consent
Decree, Settling Defendant shall pay to EPA$ in the form
of a certified check or checks made payable to "EPA Hazardous
Substances Superfund," and referencing CERCLA Number _____ and
DOJ Case Number ____ , in reimbursement of costs incurred by the
United States prior to the entry of this Consent Decree for removal
or remedial actions relating to the Site. The certified check(s)
shall be forwarded to EPA Superfund, P.O. Box 100142, Atlanta, GA
30384. Copies of the check(s) and any transmittal letter(s) shall be
sent to the United States.
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44. Within fifteen (15) days of the entry of this Consent
Decree, Settling Defendant pays to the State$ in the
form of a certified check or checks made payable
to _______________ , in reimbursement of costs incurred by
the State prior to the entry of this Consent Decree for removal or
remedial actions relating to the Site. The certified check(s) shall
be forwarded to __________ Copies of the check(s) and any
transmittal letter(s) shall be sent to the State.
45. Settling Defendant shall reimburse EPA and the State for all
costs incurred by them in connection with the review or development
of plans, reports, and other items and the oversight or verification
of work pursuant to this Consent Decree, or to secure access to the
Site or other property to which access is required for the
performance of the Work. EPA and the State shall each send Settling
Defendant a demand for payment of such costs, together with an
appropriate accounting of the costs claimed, on an annual basis, with
each demand to be made as soon as practicable after the anniversary
date of the entry of this Consent Decree. Payment shall be made in
the manner described in paragraphs 39 and 40 above, as applicable,
within thirty (30) days of Settling Defendant's receipt of the demand
for payment.
XIX. INDEMNIFICATION AND INSURANCE
46. Settling Defendant shall indemnify and save and hold
harmless the United States, the State, and their officials, agents,
employees, contractors, or representatives from any and all claims or
causes of action arising from or on account of acts or omissions of
Settling Defendant, their officers, employees, agents, contractors,
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subcontractors, and any persons acting on their behalf or under their
control, in carrying out activities pursuant to this Consent Decree.
Neither the United States nor the State shall be held out as a party
to any contract entered into by or on behalf of Settling Defendant in
carrying out activities pursuant to this Consent Decree. Neither
Settling Defendant nor any such contractor shall be considered an
agent of the United States or the State.
47. Settling Defendant waives, and shall indemnify and hold
harmless the United States and the State with respect to, any claims
for damages or reimbursement from the United States or the State, or
for set-off of any payments made or to be made to the United States
or the State, arising from or on account of any contract, agreement,
or arrangement between Settling Defendant and any person for
performance of work on or relating to the Site, including claims on
account of construction delays.
48. Prior to commencing any on-Site work, Settling Defendant
shall secure, and shall maintain for the duration of this Consent
Decree, comprehensive general liability and automobile insurance with
limits of ten million dollars, combined single limit, naming as
insureds the United States and the State. In addition, for the
duration of this Consent Decree, Settling Defendant shall satisfy, or
shall ensure that their contractors or subcontractors satisfy, all
applicable laws and regulations regarding the provision of workmen's
compensation insurance for all persons performing work on behalf of
the Settling Defendant in furtherance of this Consent Decree. Prior
to commencement of work under this Consent Decree, Settling Defendant
shall provide to EPA and the State certificates of such insurance and
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a copy of each insurance policy. If Settling Defendant demonstrates
by evidence satisfactory to EPA and the State 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 coritractor or subcontractor Settling Defendant
need provide only that portion of the insurance described above which
is not maintained by the contractor or subcontractor.
XX. FORCE MAJEURE
49. "Force Majeure" is defined for the purposes of this Consent
Decree as an event arising from causes entirely beyond the control of
Settling Defendant and of any entity controlled by Settling
Defendant, including their contractors and subcontractors, which
delays or prevents the performance of any obligation under this
Consent Decree. "Force Majeure" does not include unanticipated or
increased costs, changed financial circumstances, or non-attainment
of the goals and standards set forth in Section V hereof or in the
sow.
50. When circumstances occur which may delay or prevent the
completion of any phase of the Work or access to the Site or to any
property on which part of the Work is to be performed, whether or not
caused by a Force Majeure event, Settling Defendant shall notify the
RPM and the State Project Coordinator orally of the circumstances
within twenty-four hours after they first became aware of them. If
the RPM is unavailable, Settling Defendant shall notify the Director
of the Waste Management Division, EPA Region IV within five (5)
working days after Settling Defendant first became aware of such
circumstances, Settling Defendant shall supply to Plaintiffs in
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writing an explanation of the cause(s) of any actual or expected
delay or noncompliance, the anticipated duration of any delay, the
measures taken and to be taken by Settling Defendant to prevent or
minimize the delay or correct the noncompliance, and the timetable
for implementation of such measures. Failure to give timely oral and
written notice to Plaintiffs in accordance with this Paragraph shall
constitute a waiver of any claim of Force Majeure with respect to the
circumstances in question.
51. If EPA, in consultation with the State, agrees that a delay
is or was caused by a Force Majeure event, the Parties shall seek
modification of the RD/RA Work Plan and/or other relevant documents
to provide such additional time as may be necessary to allow the
completion of the specific phase of the Work and/or any succeeding
phase of the Work affected by such delay, which additional time shall
be no longer than the actual delay resulting from the Force Majeure
event. In proceedings on any dispute regarding a delay in
performance or other noncompliance, Settling Defendant shall have the
burden of proving (1) that the delay or noncompliance is or was
casued by a Force Majeure event, and (2) that the amount of
additional time requested is necessary to compensate for that event.
52. Delay in achievement of any milestone established by the
RD/RA Work Plan and or other relevant documents shall not
automatically justify or excuse delay in achievement of any
subsequent milestone.
XXI. DISPUTE RESOLUTION
53 .. Any dispute which arises under or with respect to this
Consent Decree shall in the first instance by the subject of informal
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negotiations between the parties to the dispute. The period for
negotiations shall not ordinarily exceed thirty (30) days from the
time the dispute arises, but it may be extended by agreement between
Plaintiffs and Settling Defendant. The period for informal
negotiations shall end when EPA, after consultation with the State,
provides its position on the disputed mater to the Settling Defendant
in writing.
54. In the event that the Parties cannot resolve a dispute by
informal negotiations under the preceding paragraph, then the
position advanced by EPA shall be considered binding unless, within
five (5) days after the end of the informal negotiations period,
Settling Defendant invokes the dispute resolution procedures of this.
Section by giving written notice to the United States, EPA, and the
State. After receiving such notice from Settling Defendant, EPA
shall notify Settling Defendant whether the dispute is to be resolved
on the administrative record under paragraph 56 below. Settling
Defendant shall waive any right to contest EPA's determination that
the dispute is subject to the administrative resolution unless
Settling Defendant files a petition with the Court challenging that
determination within five (5) days after it receives notice thereof.
The filing of such a petition shall not stay or otherwise delay the
administrative proceedings under paragraphs 55 through 58.
55. The dispute resolution procedures of this Section shall be
the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree and shall apply to all provisions of
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this Consent Decree unless otherwise expressly provided. Invocation
of the procedures of this Section shall not of itself extend or
postpone any obligation of Settling Defendant under this Consent
Decree, provided that payment of stipulated penalties with respect to
the disputed matter shall be stayed pending resolution of the
dispute. 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 Settling
Defendant does not prevail on the disputed issue, stipulated
penalties shall be assessed and paid as provided in Section XXI._ In
proceedings on any dispute under this Section, Settling Defendant
shall bear the burdens of coming forward with evidence and of
persuasion on factual issues.
Administrative Resolution of Disputes Relating to the Remedy
56. Any dispute under this Section which relates to the
selection, extent, or adequacy of any aspect of the Work shall be
resolved on the administrative record maintained by EPA. For
purposes of this paragraph, the adequacy of the Work includes: (1)
the adequacy or appropriateness of plans, procedures to implement
plans, or any other items requiring approval by EPA or the State
under this Consent Decree; and (2) the adequacy of work performed
pursuant to this Consent Decree. The administrative record shall
include the written notification of dispute, all Statements of
Position, and any other materials submitted by the Parties in support
of their positions.
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57. Within ten (10) days after receiving notice from EPA that a
dispute is subject to resolution on the administrative record,
Settling Defendant shall serve on EPA a written statement of its
position on the matter in dispute ("Statement of Position"),
including any factual data, analysis, or opinion supporting that
position and all supporting documentation relied upon. If EPA elects
to contest the Settling Defendant's position, it shall serve a
Statement of Position, including supporting documentation, on the
other Parties no later than ten (10) days after receipt of Settling
Defendant's Statement of Position. In the event that these 10-day
periods for exchange of Statements of Position may delay the Work,
they may be shortened upon and in accordance with notice by EPA.
58. Upon review of the administrative record, the Director of
the Waste Management Division, EPA Region IV, shall issue a final
decision and order resolving the dispute. This order shall be
enforceable administratively pursuant to Section 121(e)(2) of CERCLA,
subject to the rights of judicial review set forth in Paragraph 59.
59. Any decision and order of EPA pursuant to the preceding
paragraph shall be reviewable by this Court, provided that a Notice
of Judicial Appeal is filed within ten (10).days of receipt of EPA's
decision and order. Judicial review of such a decision and order
shall be conducted on the administrative record, and EPA's decision
shall be upheld unless it is arbitrary and capricious or otherwise
not in accordance with law.
Resolution of Other Disputes
60. If EPA determines that a dispute is not subject to paragraph
53, then the position on the dispute advanced by EPA following
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informal negotiations shall be considered binding on all Parties
unless, within ten (10) days after receipt of the determination that
paragraph 53 is inapplicable, Settling Defendant files a petition
with this Court settling forth the matter in dispute, the efforts
made by the Parties to resolve it, the relief requested, and the I schedule, if any, within which the dispute must be resolved to ensure
I orderly implementation of this Consent Decree. Nothing herein shall
prevent the United States or the State from arguing that the Court
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should apply the arbitrary and capricious standard of review to all
disputes under this Consent Decree.
XXII. STIPULATED PENALTIES
61. If Settling Defendant fails to comply with any requirement
applicable to it in Sections VI, VII, VIII, IX, X, XI, XIV, XV, XVI,
XVIII, and XIX of this Consent Decree or to perform all required work
properly by the deadlines or milestones set forth in the SOW or the
RD/RA work Plan or any other relevant documents, Settling Defendant
shall pay to EPA and the State stipulated penalties in the following
amounts for each day of each and every violation of said
requirements:
Period of Delay
1st through 7th day
8th through 14th day
15th through 28th day
29th through 60th day
Beyond 60 days
Penalty Per Violation Per Day
$ 2,000
$ 4,000
$ 6,000
$10,000
$15,000
percent of the above amounts shall be paid to EPA and
percent to the State
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62. If Settling Defendant fails to comply with any other
requirement of this Consent Decree, Settling Defendant shall
pay, percent to EPA and __ percent to the State, stipulated
penalties of $1,000 per day for each and every such violation.
63. Stipulated penalties shall begin to accrue on the day that
performance is due or noncompliance occurs, and shall continue to
accrue through the final day of correction of the noncompliance.
Separate penalties shall accrue for each separate violation of this
Consent Decree.
64. All penalties due to EPA and the State under this Section
shall be payable within thirty (30) days of receipt by Settling
Defendant of notification of noncompliance. Interest shall begin to
accrue on the unpaid balance at the end of the thirty-day period, at
the rate established by the Department of the Treasury under 31
u.s.c. §3717. A handling charge shall be assessed at the end of each
thirty-day late period, and a six (6) percent per annum penalty
charge shall be assessed if the penalty is not paid within ninety
(90) days after it is due.
65. Stipulated penalties due to EPA shall be paid by certified
check made payable to "EPA Hazardous Substances Superfund" and shall
be mailed to EPA Superfund, P.O. Box 100142, Atlanta, GA 30384.
Stipulated penalties due to the State shall be paid by certified
check made payable to _________ and shall be mailed
to
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66. The stipulated penalties set forth above shall be in
addition to any other remedies, sanctions, or penalties which may be
available to the United States or the State or their Agencies or
Departments by reason of Settling Defendant's failure to comply with
requirements of this Consent Decree.
XXIII. COVENANT NOT TO SUE BY PLAINTIFFS
67. Except as specifically provided in paragraphs 67 and 68 of
this Section, the United States and the State covenant not to sue or
to take administrative action against Settling Defendant for Covered
Matters.
68. Except as provided in Paragraphs 69-71, Covered Matters
shall include any and all civil liability to the United States for
causes of action arising under Sections 106 and 107(a) of CERCLA and
to the State under Section 107(a) of CERCLA and for performance of
the Work and for recovery of response costs incurred by the United
States or the State in connection with the Site prior to the lodging
of this Consent Decree.
69. Pre-certification reservations--Notwithstanding any other
provision of this Consent Decree, the United States and the State
reserve the right to institute proceedings in this action or in a new
action seeking to compel Settling Defendant (1) to perform additional
response actions at the Site or (2) to reimburse the United States
and/or the State for response costs if, prior to certification of
completion of Phase I:
(i) conditions at the Site, previously unknown to the
United States, are discovered after the entry of this
Consent Decree, or
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(ii) information is received, in whole or in part,
after the entry of this Consent Decree, and the EPA
Administrator or his delegate finds, based on these
previously unknown conditions or this information together
with any other relevant information, that the Work is not
protective of human health and the environment.
70. Post-certification reservations--Notwithstanding any other
provision of this Consent Decree, the United States and the State
reserve the right to institute proceedings in this action or in a new
action seeking to compel Settling Defendant (1) to perform additional
response actions at the Site or (2) to reimburse the United States
and/or the State for response costs if, subsequent to certification
of completion of Phase I:
(i) Conditions at the Site, previously unknown to the
United States, are discovered after the certification of
completion, or
(ii) information is received, in whole or in part,
after the certification of completion, and the EPA
Administrator or his delegate finds, based on these
previously unknown conditions or this information together
with other relevant information, that the Work is not
protective of human health and the environment.
71. General reservations of rights--The covenants not to sue set
forth above do not pertain to any matters other than those expressly
specified to be Covered Matters. The United States and the State
reserve, and this Consent Decree is without prejudice to, all rights
against Settling Defendant with respect to all other matters,
including but not limited to:
(1) claims based on a failure by Settling to meet a
requirement of this Consent Decree;
(2) liability arising from the past, present, or future
disposal, release, or threat of release of hazardous
substances outside of the Site and not attributable to the
Site;
(3) liability for the disposal of any hazardous
substances taken from the Site;
(4) liability for damages for injury to, destruction
of, or loss of natural resources;
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(5) any matter as to which the United States or the
State is owed indemnification under Section XVIII above; and
(6) [any case-specific exclusion(s)].
72. Notwithstanding any other provision of this Consent Decree,
the United States and the State retain all authority and reserve all
rights to take any and all response actions authorized by law.
XXIV, COVENANTS BY SETTLING DEFENDANT
73. Settling Defendant hereby covenants not to sue the United
States or the State for any claims related to or arising from the
Work or this Consent Decree, including any direct or indirect claim
for reimbursement from the Hazardous Substances Superfund established
pursuant to Section 221 of CERCLA, 42 U.S.C. § 9631. Nothing in this
Consent Decree shall be deemed to constitute preauthorization of a
claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611,
or 40 C.F.R. § 300.25(d).
XXV. ACCESS TO INFORMATION
74. Settling Defendant shall provide to EPA and/or the State,
upon request, all documents and information within its possession
and/or control or that of its contractors or agents relating to
activities at the Site or to the implementation of this Consent
Decree, including sampling, analysis, chain of custody records,
manifests, trucking logs, receipts, reports, sample traffic routing,
correspondence, or other documents or information related to remedial
activities. Settling Defendant shall also make available to EPA and
I the State, for purposes of investigation, information gathering, or
testimony, its, agents, or representatives with knowledge of relevant
I facts concerning the performance of the Work.
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75. Settling Defendant may assert business confidentiality
claims covering part or all of the documents or information submitted
to Plaintiffs under this Consent Decree to the extent permitted by
and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C.
§9604(e) (7), and 40 C.F.R. §2.203(b). Documents or information
determined to be confidential by EPA will be afforded the protection
specified in 40 C.F.R. Part 2, Subpart B. If no claim of
confidentiality accompanies specific documents or information when
they are submitted to EPA and the State, or if EPA has notified
Settling Defendant that the documents or information are not
confidential under the standards of Section 104(e) (7) of CERCLA, the
public may be given access to such documents or information without
further notice to Settling Defendant.
76. No claim of confidentiality shall be made with respect to
any sampling or analytical data or any other documents or information
evidencing conditions at or around the Site.
77. The Parties waive any objection to the admissibility in
evidence (without waiving any objection as to weight) of the results
of any analyses of sampling conducted by or for them at the Site or
of other data gathered pursuant to this Consent Decree that has been
verified by the quality assurance/quality control procedures
established pursuant to Section IX.
XXVI. RETENTION OF RECORDS
78. Until six (6) years after EPA certification of completion of
the Work, the Settling Defendant shall preserve and retain all
records and documents now in its possession or control that relate in
any manner to the Site. After this document retention period,
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Settling Defendant shall notify the United States and the State at
least ninety (90) calendar days prior to the destruction of any such
records or documents, and, upon request by the United States or the
State, Settling Defendant shall relinquish custody of the records or
documents to EPA or the State.
79. Until certification of completion of the Work and
termination of this Consent Decree, Settling Defendant shall
preserve, and shall instruct its contractors and agents to preserve,
all documents, records, and information of whatever kind, nature or
description relating to the performance of the Work. Upon
certification of completion of the Work, Settling Defendant shall
deliver all such documents, records and information to EPA. EPA may
in its sole discretion waive this requirement in whole or in part .
XXVII. NOTICES AND SUBMISSIONS
80. Whenever, under the terms of this Consent Decree, written
notice is required to be given or a report or other document is
required to be sent by one party to another, it shall be directed to
the individuals and the addresses specified below, unless those
individuals or their successors give notice of a change to the other
parties in writing. Written notice as specified herein shall
constitute complete satisfaction of any written notice requirement of
the Consent Decree with respect to the United States, EPA, the State,
and the .Settling Defendant, respectively.
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As to the United States:
Chief, Environmental Enforcement Section
Land and Natural Resources Division
Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530 Re: DOJ # _______ _
and
Director, Waste Management Division
United States Environmental
Protection Agency, Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
As to EPA:
Giezelle s. Bennett
Remedial Project Manager
USEPA, Region IV
345 Courtland St., NE
Atlanta, GA 30365
As to the Commonwealth:
Charlotte Varlashkin
State Project Manager
North Carolina Dept. of Human Resources
P.O. Box 2091
Raleigh, North Carolina 27602-2091
As to the Settling Defendants:
The Defendants, Coordinator
XXVIII. EFFECTIVE AND TERMINATION DATES
81. The effective date of this Consent Decree shall be the date
upon which this Consent Decree is entered by the Court.
82. Upon notice by EPA to the Court that EPA has certified the
Work as complete and that Settling Defendant has satisfied its
obligations under Sections XVIII (Response Costs), XXII (Stipulated
Penalties), this Consent Decree shall terminate upon the motion of
any party. Termination of this Consent Decree shall not affect the
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Covenants Not to Sue (Sections XXIII and XXIV above), including all
reservations pertaining to those covenants, and shall not affect any
continuing obligation of Settling Defendant under Section(s) XXV and
XXVI.
XXIX. RETENTION OF JURISDICTION
83. This Court will retain jurisdiction for the purpose of
enabling any of the Parties to apply to the Court at any time for
such further order, direction, and relief as may be necessary or
appropriate for the construction or modification of this Consent
Decree, or to effectuate or enforce compliance with its terms, or to
resolve disputes in accordance with Section XX hereof.
XXX. MODIFICATION
84. No material modification shall be made to this Consent Decree
without written notification to and wri~ten approval of the Parties
and the Court. The notification required by this Section shall set
forth the nature of and reasons for the requested modification. No
oral modification of this Consent Decree shall be effective.
Modifications that do not materially alter the requirements of this
Consent Decree may be made upon the written consent of all Parties,
which consent shall be filed with this Court. Nothing in this
paragraph shall be deemed to alter the Court's power to supervise or
modify this Consent Decree.
XXXI. COMMUNITY RELATIONS
85. Settling Defendant shall cooperate with EPA and the State in
providing information regarding the Work to the public. As requested
by EPA or the State, Settling Defendant shall participate in the
preparation of such information for dissemination to the public and
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in public meetings which may be held or sponsored by EPA or the State
to explain activities at or relating to the Site.
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
86. 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.
S9622(d) (2), and 28 C.F.R. §50.7. The United States reserves the
right to withdraw or withhold its consent if the comments regarding
the Consent Decree disclose facts or considerations which indicate
that the Consent Decree is inappropriate, improper, or inadequate.
Settling Defendant consents to the entry of this Consent Decree
without further notice.
XXXIII. SIGNATORIES
87. Each undersigned representative ot' a party to this Consent
Decree certifies that he or she is fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and
legally bind such party to this document.
88. Settling Defendant shall identify, on the attached signature
page, the name and address of an agent who is authorized to accept
service of process by mail on its behalf with respect to all matters
arising under or relating to this Consent Decree. Settling Defendant
hereby agrees to accept service in that manner and to waive the
formal service requirements set forth in Rule 4 of the Federal Rules
of Civil Procedure, including service of a summons, and any
applicable local rules of this Court.
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SO ORDERED THIS DAY OF _______ , 19
United States District Judge
THE UNDERSIGNED PARTIES enter into this Consent Decree relating to
the National Starch Superfund Site.
Date:
FOR THE UNITED STATES OF AMERICA
Assistant Attorney General
Land and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
Environmental Enforcement Section
Land and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
Thomas L. Adams
Assistant Administrator for
Enforcement and Compliance
Monitoring
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
Greer c. Tidwell
Regional Administrator
Region IV
U.S. Environmental Protection
Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
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Reuben T. Bussey
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
FOR THE STATE OF NORTH CAROLINA
THE UNDERSIGNED PARTY enters into this Consent Decree relating to the
National Starch Superfund Site.
FOR NATIONAL STARCH AND CHEMICAL
Date: __________ _
Agent Authorized to Accept Service on Behalf of National Starch:
Name:
Title:
Address: