NCD991278953_19910516_National Starch & Chemical Corp._FRBCERCLA RA_RD RA Negotiations OU-2-OCR

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J{Jlv 1 1111:D
su,,, 0 1997
MAY 1 6 1991
4RC
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
North Carolina's Natural Resources Trustee
c/o Mr. William Meyer
Division of Solid Waste Management
North Carolina Department of Environment
Health and Natural Resources
P. o. Box 27687
Raleigh, North Carolina 27611
ftfC£1 ~t
JUN 10 1991
Re: RD/RA Negotiations for the National Starch & Chemical
Corporation Superfund Site, Operable Unit No. 2;
Salisbury, Rowan County, North Carolina
Dear Mr. Meyer:
On March 25, 1991, the United States Environmental Protection
Agency (EPA) issued a special notice letter to the Potentially
Responsible Party (PRP) related to the above referenced Site.
The purpose of the special notice letter was to inform the PRP
that a moratorium was being triggered by EPA in order to
negotiate the Remedial Design/Remedial Action (RD/RA) phase to
be implemented at the Site. A draft Consent Decree and a copy
of the Record of Decision (ROD) was attached to the letter. A
copy of the special notice letter, the Consent Decree, and the
ROD was addressed to you. ·
According to the terms of the letter, the PRP had thirty (30)
days to tender to EPA a good faith offer for the execution of
the RD/RA. If a good faith offer is provided to the Agency, the
moratorium will be extended for thirty (30) additional days. On
this date all negotiations regarding the RD/RA should have
concluded and a final Consent Decree should have been signed.
On May 1, 1991, EPA received from National Starch & Chemical
Corporation, a proposal to finance, conduct and implement the
RD/RA at the above referenced site. The proposal was received
within the 30 day term established by Section 122(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA), as amended. Also, National Starch's
proposal addresses the matters included in EPA's special notice
letter dated March 25, 1991. Therefore, EPA considers the
proposal as a "good faith offer" and, as a consequence, pursuant
to Section 122(a) of CERCLA, a 30-day term, commencing on May 2,
Printed on Recycled Paper
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1991, is hereby granted for the conclusion of the RD/RA
negotiations and for the execution of a Consent Decree embodying
the agreement.
Attached hereto you will find a copy of National Starch's
proposal consisting of a letter dated May 1, 1991; a draft
Consent Decree incorporating National Starch's modifications to
the Draft Consent Decree that EPA issued on March 25, 1991; and
a draft Statement of Work (SOW), incorporating National Starch's
modification to the draft SOW that EPA issued on March 25, 1991.
Pursuant to Sections 121(f)(l)(F), 104 (b)(2), 104(c)(2), and
105(a) of CERCLA, the State of North Carolina and the North
Carolina's Natural Resources Trustee are, hereby, notified of
the negotiations for the RD/RA to be implemented at the above
referenced Site, and of the opportunity to participate in such
negotiations. The State of North Carolina's Natural Resources
Trustee, as well as the State of North Carolina are hereby
notified of the "good faith offer" made by National Starch.
Due to the time constraints imposed by statute on these
negotiations, any comments must be received by EPA within the
next seven (7) days. EPA's negotiation team is composed of the
following persons:
a. Mr. Charles DeSaillan, Esquire -EPA Headquarters
b. Ms. Quentin C. Pair, Esquire -U.S. Department of
Justice
c. Ms. Barbara Benoy -Remedial Project Manager
d. Mr. Curt Fehn -Chief, North Carolina Remedial
Section
e. Mr. Anita Davis -Cost Recovery Specialist
f. Mr. Richard Leahy, Esquire -Office of the
Regional Counsel
Your participation and cooperation in this matter will be
appreciated.
Sincerely 7
£::::::-l~
Do ald J. Guinyard
Acting Director
Waste Management Division
cc (w/enclosures): Mr. Charles De Saillan, EPA Headquarters
Mr. Quentin C. Pair, u. S. Department of
Justice
cc: Ms. Jill Hickey, Esq. N.C. Attorney
General's Office
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._,ional Starch and Chemical Company
·10 Finderne Avenue
P.O. Box 6500
Bridgewater. New Jersey 08807-3300
908-685-5000
Cable Address: NASPAOD,BRIDGEWATEANEWJERSEY
FAX: [phone]
Writer's Direct Dial Number; 908-685-5198
Mr. Richard Leahy
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, N.E. ·
Atlanta, GA 30365
VIA FEDERAL EXPRESS
April 29, 1991
Re: National Starch and Chemical company Site Salisbury, North Carolina
Operable Unit 2
Dear Mr. Leahy:
This ietter is submitted in response to EPA's letter dated March 25, 1991 regarding the above site and constitutes our good faith offer to EPA to conduct and finance the remedial design/remedial actions for Operable Unit 2. · ·Enclosed is EPA' s draft Consent Decree which has been modified to reflect revisions which we believe are appropriate. We wish to negotiate a final Consent Decree with EPA regarding Operable Unit 2 .
Also enclosed is EPA' s draft Scope of Work which has been revised to reflect our proposal to implement the Record of Decision.
Our company intends to retain the same firm for Operable Unit 2 that it has used heretofore during the RI/FS and RD/RA for Operable Unit 1. IT Corporation has the technical capability to perform this work. National Starch and Chemical Company has the requisite financial ability to execute the Scope of Work for Operable Unit 2, and we will rely on EPA' s acceptance of· our financial assurance documents submitted for the Operable Unit 1 Scope of Work in this regard since that work is significantly more costly than the no-action alternative selected by EPA for Operable Unit 2. We have enclosed our 1990 financial operating results as further assurance of our financial ability.
We are also willing to reimburse EPA for the costs .it will incur. in overseeing the response activities for Operable Unit 2.
·we are willing to meet with EPA at its convenience to discuss this proposal. Please direct correspondence on this matter to me as I will be representing our company in negotiations with EPA.
with regard to EPA's demand for payment as set forth on page 4 of its letter dated March 25, 1991, we acknowledge in general that we have an obligation to reimburse EPA for· oversight costs incurred in response to conditions at the site. However, we question whether any of· the amount set forth in EPA' s letter represents costs that are the subject of a prior Consent Decree with EPA in connection with the RI/FS portion of the work. We would appreciate it if. you would provide us with an itemized breakdown of the amount set forth in EPA's letter, including the nature of the work performed and the relevant dates for all such work. Preferably, we would like copies of all supporting documentation that EPA relied on in arriving at the $445,464.65 amount.
Very truly yours,
:!re~k.: Jr. Counsel, Regulatory Affairs AMS:pm
cc: Ms. Barbara Benoy, EPA Region IV, Regional Project Manager H. Graulich, NSC
M. Sturdevant, IT Corporation
J. Kirkland, Esq., King & Spalding
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Consolidated Balance Sheet* <Data" ,huc,>cdSJ
A.ssets
Cash and temporary im·estments
.-\.ccounts r_eceivable -: net
Inventories
f'repaid expenses and other
Total Current Assets
Investments
Property at cost
Less accumulated depreciation
Property -net
Other Assets
Total
Liabilities and Shareholder's Equity
Notes payable
Long-term debt due within one year
.-\.ccounts payable
Accrued taxes and expenses
Total Current Liabilities
Long1'er[11 Debt Maturing after One Year
Deferred Credits.and Other Long Term Obligations
. Shareholder's Equity
Total
•rnc!udes companies which are managed but· not owned.·
December 31 1990
S17,781
2-16.716
214,615
59,742
538,854
151.900
935,678
299,564
636,114
121,055
Sl,4;47,923
S23,715
1.776
160,730
176.432
362,653
279,496
122,126
---683,648
$1,447,923
1989
S46.332
234.542
203.357
52.387
536.618
53.307
836,892
258.785
5,8,107
118.969
S1.287.001
S2 l.8 I 3
2,063
169.933
168.007
361.816
206,216
121.982
596.987 -
$1.287,001 ·
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Financial Data 19,,
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Consolidated Statement of Income* !Data:, thousaodsl
For the years ended December 31
'.\et sales
Cost of sales
Gross profit
1990
Sl,670.472
1.134,987
1989
$1,569.337
1,086.980
1988
$1,41.J,943
· 989,696
Selling. general a~d administrative expenses
535,485
281,259
482,357
256,034
425.24 7
225,249
Operating income
Other expenses -net ----1 ncome before taxes from
c,Jnsolidated operations
P:-•::-:',sions for federal. foreign and state
>·_1)me taxes
Income after taxes from
consolidated operations
Equity in net earnings of joint ventures
254,226
26,087
'228.139
88,496
139,643
5,044
226.323
23,200
203,123
8 I .i88
121.335
7,429
199,998
18,673
181,325
74,687
106,638
6,iii
'.\et income Sl44,687 Sl28.764 $113,415
Percentage Distribution of Consolidated ·Sales*
1890 1989 1988 1987 1986
Adhesives 45% 45% 41% 43% 41%
Industrial Starches & Food Pr0ducts 33% 35% 38% 37% 38%
Resins and Specialty Chemicals 22% 20% 21% 20% 21%
100% 100% 100% I 00% 100%
Consolidated Operations and Joint Ventures•·tDarai,thousands)
'.'let Sales 1990 1989 1988 1987 1986
liS. Consolidated $881,795 $873,214 $785,495 $675,886 $642,530
Foreign Consolidated 788,677 696.123 629,448 531,989 421,114
Total Consolidated 1,670,472 1,569,337 1,414,943 1,207,87-5 1;063,644
Joint Ventures !Company S11.are) 103,504 101.109 · 98,279 73,735 62,148
Total $1,773,976 $1,670.446 $1.513.222 Sl.281.610 $1,125,792
\"et Income
LS. Operations $93,578 ~83,025 $69,581 $59,561 $50,292
Consolidated
Foreign Operations. 46,065 38,310 37,057 28.450 19,144
Consolidated Operations 139,€43 le 1.335 I 06,638 88.011 69,-136
Joint Ventures (Company Sharel 5,044 7.429 6,777 4,206 2,370
Total $144,687 Sl28.764 $113,415 $92,217 . $71,806
·rncludes companies which are managed but not owned.
Robert B. Albert ~ Senior Group Vice Presi · Finance and Administrat
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Summary of Operations I Data 1r: ;h,it:~;ir,C; .,f d.-,lla:-;. l"l.,t·pt for ..:urrl·r.l :-atiol
1990 • 1989·
Net Sales 1.670,4 72 1.569.337
Gross Profit 535,485 482.357
Operating Income 254,226 226.323
Income before Taxes from Consolidated Operations 228. 139 203.123
Provision for Income Tuxes 88,496 81.788
Income after Taxes from Consolidated Operations 139,643 121.335 --------------'------------------Net Income 1-1-1,687 LS.76-l
Financial Position and Other Statistics
Current Assets 538,85-1 536,618
Current Liabilities 362,653 361.8 I 6
Working Capital 176,201 17 4 .802
Current Ratio 1.5 to l 1.5 to I
Depreciation 42,090 36,2,8
Capital Additions 85,469 90,325
Property, Net of Depreciation 636, 11-1 578,!0,
Long'.J'erm Debt 279,496 206,216
Shareholder's Equity 683,648 596.987
Number of Employees Worldwide 7,418 7.-188
Ten Year Summary of Financial lnformatio,
1988' 1987' 1986' 1985
1,414.943 1,207,875 1,063,644 880,570
425,247 375,385 310,306 256,854
199.998 175,285 140,227 114,565
181.325 153,113 125,961 108,580
74,687 65,102 56,525 44,694
106,638 88,011, 69 .436 63,886
113,415 92,217 71,806 66,013
528,463 448,876 346,960 322,739
288,174 258,286 189,876 151,,205
240,289 190,590 157,084 171.534
1.8 to 1 I. 7 to 1 1.8 to 1 2.1 to 1
32.201 27,057 29,612 20,118
80,001 96,462 60.187 108,715
504,853 447,741 344,727 287,708
135.702 89,148 65,314 61,909
574.267 498,370 402,905 375,201
7,165 6,759 6,464 5,699
• [ndudes companies which are managed but not owned.
1984 1983
842.570 756,928
248.200 216.273
113,794 100.925
96,747 92,730
43,201 45,341
53.546 47,389
54.956 46,679
297,069 263,395
133,516 116.255
163,553 147,140
2.2 to 1 2.3 to 1
18,666 _17,709
35,810 24,969
198,246 184,695
35,434 32,515
328,068 303.546
5,478 5,175
1982
691,951
182,005
74,880
64,887
28,160
36,727
37:050
204,491
80,734
123,757
2.5 to 1
17,235
22,909
171.000
32,566
271. 186
4,824
1981
668.372
169 .783
74,049
66,382
26,241
40,141
41.444
206.314
.. 84,472
121.842
2.4 to 1
15.390
18,728
163,115
34,040
254,053
4,648
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.\.tichael I. Fenster
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CONSENT DECREE
NATIONAL STARCH AND CHEMICAL COMPANY SITE
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITED STATES OF AMERICA and
STATE OF NORTH CAROLINA,
Plaintiffs,
)
)
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)
) v. ) CIVIL ACTION NO.:
National Starch & Chemical
Corporation
Defendant.
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CONSENT DECREE
A. The United
I . BACKGROUND (o)
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:
( 1) reimbursement of costs incurred by EPA
actions at th~ National Starch & Chemical Corporation
·superfund Site in Salisbury, Rowan County, North Carolina,
together with accrued interest; (2) an injunction requiring
not:,6½0j -co Su l'l'~r -I . ..!/21'.-/"em?tl'f Defendant to perform studieshand response work at the SitE in
conformity with the Record of Decision (as defined below) and
the National Contingency Plan, 40 C.F.R. Part 300 (as amended)
("NCP"); (3)
,vcp
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response costs; and (4) such other relief as the Court finds
appropriate.
c .. In accordance with the NCP and Section 1_2l(f)(l)(F) of
CERCLA, 42 U.S.C. § 962l(f)(l)(F), EPA notified the State of
North Carolina (the "State") on December 11, 1990 of
1 negotiations with potentially responsible partie§·regarding
the implementation of response actions pursuant to Operable
Unit 2 for the Site. EPA has provided the State with an
opportunity to participate in such negotiations and be a party
to this settlement.
D. In accordance with Section 122(j)(l) of CERCLA, 42
U.S.C. § 9622(j)(l), EPA notified the relevant Federal and
State natural resour·ce trustees on December 11, 1990 of
negotiations with potentially responsible parties regarding
the release of hazardous substances that may have resulted in
injury to the natural resources under Federal trusteeship, and
encouraged the trustees to participate in the negotiation of
this Consent Decree.
E. The Defendant that entered this Consent C~cree
("Settling Defendant") .does not admit any liability to the
Plaintiff arising out of the transactions or occurrences
alleged .in the Complaint.
F. Pursuant to Sec.tion 105 of CERCLA, 42 u.s.c. § 9605,
EPA placed the Site on the National Priorities List in April
1985.
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G. --In-response ·-to--a -release-or --threat of a -release of--a -
hazardous substance at or from the Site, EPA and the Settling
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Defendant-commenced--in-January--1-98-7-, ~ ·RemedJ_al Investig,tion and
. . . -t,vl,,.,,/ ,;~-1,sf:es f.-,o-~J1r:=me 0"t'. Feas1.b1.l1.ty Study ("RI/FS")cfor the Site pursuant te 40 C.F § .
, 1-0 C,. ~-IC. 300. 68; 1,µ11/:, co,.,-,r>-e"e-w ~-4-, 0 (\ cl,; C IX" \l le-red.
H. The Settling Defendant completed a Remedial Investigation
( "RI" ) Report on June 21, 1988, and EPA com?leted a Feasibility Study I
( "FS" ) Report in August 1990;
I. Pursuant to Section 117 of CERC:::..A, 42 u.s.c. § 9617, EPA I
published notice of the completion of tte FS and of the proposed plan I
for remedial action in July 1990, in a major local newspaper of
general circulation. EPA provided an opportPnity for written and
oral comments from the public on the proposed remedial action.[-,,.
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eapy af the transeript af tho-public;: meeting is avaiJabJe to tbe I
-puW-i-e--a.s-pa.r~e--admi-ni-s tc-r--a. t-i-ve-r-e=r--d~pon-whkh-t-he-Reg-iBna-l-I
--Adm-i-ru.:et-r--a.-ter-bas ed-t-h~ -s e-lecti-o n--o-f--the-r--e spons e-ac-t-i-G n--j
J. The decision by EPA on the response action to be implemented I
at the Site as Operable Unit 2 is e~odied in a final Record of
Decision ("ROD"), executed on September 28, _1990, _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 swnmary to the public comments.
Notice of the final plan was published in accordance with Section
117(b).
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L. Based on the information presently available to EPA and the
State, EPA and the State believe that the Work will be properly and
promptly conducted by the Settling Defendant.
M. 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 and will avoid prolonged and
complicated litigation betwee~ the Parties, and that this Consent
Decree is fair, reasonable, and in the public interest.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED.
II. JURISDICTION [BJ
1. This Court has jurisdictio_n over the subject matter of this
action pursuant to 28 U.S.C. §5 1331, 1345; 42 U.S.C. §§ 9606, 9607,
and 9613(b). 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 that it may have to jnrisdiction of the Court or to venue in
,:;;:._1rc:i!S to
this District. Settling Defendant snall not~challenge this Court's
jurisdiction to enter.! -=de enforce{l.this Consent Decree.
L. or -+~rm, "-;i.-te.. ·
III. PARTIES BOUND (1::,J
2. This Consent Decree applies to and is binding upon the United
States and the State and upon the Settling Defendant and its agents,
successors and assigns. Any change in ownership or. corporate status
of the Settling Defend~nt including, but not limited to, any transfer
of assets or reai or personal property shall in no way alter Settling
Defendant's responsibilities under this Consent Decree.
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J. Settling Defendant shall provide a copy of this Con~ent .. I
;-: ;-,=-,~:,~.-~--")2:.-,r::, Decree to each contractor hired to perform the Work~required by this I
Consent.Decree and to each person representing Settling Defendant
with respect to the Site or the Workl'.'--and shall condition-att • I
--{;Gntr-aG.ts-Bnt.=-ed-i.nt-0-her-eunder-upon-pei;.foz::mance-o.f-t-he--Work--i-n I
-eon.f-eEni-t;-y-wi-t;h-t-he-tez::ms-G-f-this Consent-Decree.. Settling Defendant
or its contract::,r,: 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 Defendant shall
nonetheless be responsible for ensuring that its contractor and
subcontractors perform the Work contemplated herein in accordance
with this Consen~ Decree. With regard to the activities undertaken
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shall be deemed to be in a contractual relationship with the Settling I
Defendant within the meaning of Section 107(b)(3) of CERCLA, 42
U.S.C. S 9607(b)(3).
IV. DEFINITIONS (73)
4. ~nless noted to the contrary, the terms of this Consent
Decree shall have the meaning assigned ~o those te~s pursuant to
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CERCLA. Whenever the terms listed below are used in this Consent
Decree and the Exhibits and Appendices attached hereto, the following I
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
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appendices attached hereto. 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~ ederal holiday.
'-s-h½: O'<' J
In computing any period of
time under this Consent Decree, where the last day would fall on a
Satu-day, Sunday, orlFederal holiday,
s¼+e Qv_J
the period shall run until the
end of the next working day.
"EPA" shall mean the United States Environmental Protection
Agency and any deparbnent;; or ag~nciE)S o~ the United States,,a"d Or)"\ e rn /'/2..,a,:;;, l CUJ" /I 75 / U,ff) i-r d-0 t &15 / .,;, V 6 (,er, i"YcV~fi! rs ~ C bn5 (/ /f;;J I') "t z:-/4-r-::, 0 r. 1 "North Carolina Department of Environment, Health, and
Nat~ral Resources• shall mean the (State Pollution Control agency or
Environmental Protection Agency) and any successor departments or
agencies of the State.
"Future Response Costs" shall mean all costs, including, but
not limited to, indirect costs, that the United States xd tha St~e fU.-'5~nf i:o 4 2 {). S . .::: S 9~1 <--f 5tJ · -t<4..,/ q ,e /,ol //\CtY/5,S l?f OJ,lr, I /,/CP incur,lin overseeing the Work,1, including, but not limited to, pay:i;oll
-c-ests, cont-r-actor casts,-t-r-avel--cos~s, laoor-atoey---00sts, tho costs
:--incurred --pursuant-to-Sect-ion -X-{·Acc es s-)-,-and·-the-cos t-s-G-f-r-ev-iew,i-ng-
-or--deve loping. plans, ..... reports-and .other--i-tems--pursuant-to--t;.h-.i--s-
--Gonsen t-DeG-ree ,-verifying ·-t-he -Work, ·-or· -otherwise -implement:±ng--or---
-en-f orc ing-this -Consenio·-Dei:ree ~ Future Response Costs shall also
--i-Hc.J..ude_ al Leos ts , i or.ludi.ng-.i.ndirec.t-cost s-,--H\GU·r-r-ed-by-the-U n±-t-ed-_; / · l· I / nc,, u:7 • r. "1 C, iJ 5 7c, 1 /1 C elf r= , . -StatesLand-the State in connection with the Site between the date
this action was filed and
e,_) J,c..,.{ ere., CC/:S •jft ,..,f
the effective
½'·/I -/A2
date of this Conse~t Decree.
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I ''National Contingency Plan'' or ''NCP" shall mean the National
Oil and Hazardous Substance Pollution Contingency Plan promulgated I
pursuant to Section 105 of CERCLA, 42 U.S.C. S 9605, codified at 40 1 C.F.R. Part 30°t, ,including any amendments thereto. W'50..
· "Operation 'and Maintenance· or "0 & M" shall mJ¥n all :,--. ,,a ~ :,4 In c/4.. :?;-,-/ .!)("" A/&~K.. ~/4~r/ I>-,, (_/ie Stn'1'5-1 LA! ka,: activities require o maintain t e e ectiveness orthe· Remeaf'~
~Fla 1rnaer tli.e Oi;>eratien and Maintenarwe Plan· approv:;J,
wh ,J.., Or-c. .... ----~ Q;i;: i;ievelei;>elil by EPA pursuant to this Decree/land tfie Statement ef Worll
(sow) .
"Paragraph" shall mean a portion of this Consent Decree I
identified by an arabic numeral.
"Parties" shall mean the United States, the State of North
Carolina, and the Settling Defendant.
"Past Response Costs" shall mean all costs, including, but
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not limited to, interest and indi~ect.,costs, ~hqt t;,h~ Un~tedfStates,/1 n o c.;, ue ,ea' PY r/J e 4,/411 '7 ,str4 f-rvr Oft/?( ,-,, /Jtn.:R" OJvttet 1r and the State incurred,with regard to the Site prior to April 10, fi-V'
19 s 9. ~ ~ ,,_:,i; a ,c. e,e,,, s 15ftr1 f t,,(J/..J;, /j e-✓-vcP ~
('vl/..,f . -----4-C"Performance StandardOshall mean those cleanup
~standards, standards of control, and oth~r substantive requirements, I
if' criteria or limitations, set forth in the ROD, Paragraph 13 of this I ,{,AA $._ ;~Of_) Consent Decree, and as identified in Task I of the SOW.
"Plaintiffs" shall mean the United States and the State of I
North Carolina.
"Record of Decision" or "ROD" shall mean. the EPA Record of
Decision relating to the second Operable Unit at the Site
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signed on September 28, 1990 by the Regional Administrator, EPA
Region IV, and 1;11 attachjnents. -thereto. 1,:,2
:::1-,--.d //;.,•,:r;::,o-: --.--r-,t:.z /;ere~,J 4y r~ ... ~f"'1!.,-.c,t..
"RCRA" shall mean the Solid Waste Disposal Act, as amended,
42 U.S.C. §§ 6901 et•~ (also known as the Resource Conservation
and Recovery Act).
"Response Action" shall mean those activities·, except for
Operation and Maintenance<,--...to.ba undertaken by the Settling Defendant-'Eb,:,bR.i:> <> F t./2.-bd ,e, v CJ /JC -fi?e.,
to implement theifinal plans anel speoifioations s,abmitteel by the
Settlin~ Defendq~t 1'l)±rsttan;t te the Statement of Work and approved by
purS«t1n+ 7b -(-17,5 Urnxnf Du.-rr:e
EPP.A including, bttt net li.lltited te, any additional activities
required under Sections VII (Additional Response Action) and Section
VIII (U.S. EPA Periodic Review) of this Consent Decree.
"Section" shall mean a portion of this Consent Decree
identified by a Roman nllJ!leral and includlng one or more paragraphs;
"Settling Defendant" shall mean National Starch & Chemical
Corporation. CJ//4,,~ -pf,C(,,ct aV-8. pi?,:q c.U1,f"JWi-itrf qtc:::,~y1:;j>.t;i_7 "'c~
"Site" shall mean thefr,ational Starch & Chemical Cofy;'.;lation
S.uJ?oi;fttl'ld-Site, encompassing approximately 500 acres, located at
Cedar Springs Road in Salisbury, Rowan County, North Carolina, as
described in the Record of Decision and depicted on the site map
included in the ROD.
"State" shall mean the State of North Carolina.
"Statement of Work" or "SOW" shall mean the statement of
work for implementation of the Response Actionp andr Maintenance
. [_ 0~ ~ ~ :;,---·.' <...;
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~-.... ~...., .\
\ I -• • .J ·' \ .-.l,_..i l \. .1-·\ ~
at the Site, as set forth in Appendix B to this Consent Decree
and any modifications.
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"Supervising Contractor" shall. mean the contractor
retained by the Settling Defendant to carry out the Work under this I
Consent Decree and approved by EPA pursuant to Paragraph V1. /0. I
~
"United States"
including the Department
Environmental Protection
shall mean /4. United States of America, I
of Justice)iHl4 United States ,, i
Agency. o~cl cie tl.111 /4157~ lep-11/JX'l!I )'~
"Waste Material" shall mean (1) any "hazardous I substance" under Section 101(14) of CERCLA, 42 U.S.C. S 9601
( 14); ( 2) any "solia ,...aste" t1naer Section--l-G~f-2-'li-Of-RGRA,-4~--I
·U .S ,-C-.--§---690-3-(-2-+t-;-and ( J)
applisable state statute,
any "na111ardous mater1.al" t1nder--tttiy--
•work• shall mean all activities.Settling Defendant is
required to perfonn under this Consent Decree, except those
by Section XXVI ( Retention of Records.) .
V. GENERAL PROVISIONS (<':,)
5. Objectives of the Parties
required
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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 Material from the Site.
by the design and implementation of the Response Act.ions and
Operation & Maintenance at ie Site by the Settling Defendan~-and tol
reimburse the Plaintiff' s{;es;onse costs ,0/? ~ ~ 52/14.., cl,, ,.,,;_s
,:1"'!'-"..-",.../2,:/ Jy -,/J~ (//l·~·c1· s~..,<._, OIJd -14e. S:T"~Tc :5q•,:,5 -I
I :S:..~ •":S Z)1; /(r de r, f t1 s = t:, ~ o/ / 17 -tX ~ 6 //> r° ~-/) I
.::;;~ . r1 /7/4c,,___R ./2,J/' /1 f 5-. /
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DRAFT 1
Effect of Settlement
This Consent Decree was negotiated at arm's length and
executed by th_e Parties in good faith go avoid further expensive
and protracted litigation and is a settlement of claims which were
vigorously contested, denied and disputed as to validity, liability
and amount. The Plaintiff and the Settling Defendants agree that
neither this Consent Decree, nor any part hereof, nor the entry
into, nor any performance under this Conse~t Decree by any of,the
Settling Defendants, shall constitute or be construed as a finding
or admission or acknowledgment of the factuc1l or. legal allegations
contained in this Consent Decree or in the Complaint, or of any
liability, fault, wrongdoing, or evidencf of sue~, or an admission
,of violation of any'law, rule, regulation, or policy, by any
Settling Defendant or by its officers, directors, employees,
agents, successors or assigns, nor shall this Consent Decree nor
any performance hereunder by any of the Settling Defendants create
any rights on behalf of any other person not a party hereto. Each
. It j fk /3841 l/ 44002 /docs/consent. i
1 · Apr I 9 II : 2 2: 15 I 90 !
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8

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DRAFT l
6f the Settling Defendants expressly reserves any and all rights
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I (iricluding any right to contribution), defenses, claims, demands
and causes of action which each of them may have with respect to
any matter, action, event, claim or proceeding relating in any way I
to the Site against any person, except as expressly provided in I
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this Consent Decree. Settling Defendants individually and
collectively, do not admit, accert, concede or acknowledge the
determinations, allegations, findings of fact, if any, and
conclusions in this Consent Decree or in the complaints fi)ed in
this action and specifically reserve the right to contest any such
determinations, allegations, findings and conclusions except in any
proceeding to enforce Defendants' obligations pursuant to this
Consent Decree. AJditionally, pt•rsuant to Section 122(d)(l)(B) of
CERCLA, except as otherwise provided in, the Federal Rules of
Evidence, the participation by any party in this Consent Decree
shall not be considered an admission of liability for any purpose,
and the fact of such participation shall not be admissible in any
judicial or administrative proceeding.
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6. Commitments by Settling Defendant
a. Settling Defendant shall finance and_ perform the Work i~.
accordnnce with this Consent Decree, including, but not limited to,
the SOW and all standards, specifications, and schedules set forth in
or developed pursuant to this Consent Decree. Settling Defendant
shall also r8i.mburse the United States and the State for Pa.t
f;;r Respease Cests aad Future Response Costs as provided in this Consent
// / /. ./ ,-v}/, 5,f/Y ~n / ~,..,t. 1/!CLLr'Y&/11') C" /)-7<1/J/?cr Oe,;::i;:gQ_.,..._,.,-,,/<!. r~~,,,. (?~ 4','1()° ,~:-I ~ CY u
; /JC D/J s:, s-/4 ri f c,,v-l-0 -I he N e,.P
b. The obligations of Settling Defendant, and any PRP who
might be identified in the future, to finance and perform the Work
and to pay amounts owed the United States and the State under this
Consent Decree are joint and several.
7. Compliance With Applicable Law
All activities undertaken by Settling Defendant: ·pursuant to
this Consent Decree shall be performed in accordance with the
requirements of all applicable federal and State laws and
regulations. The United States and the State have determined that
the activities conducted pursuant to this Consent Decree, if approved
py·EPA, shall be considered to be consistent with the NCP.
a. Permits
a. As provided in Section 121(e) of CERCLA and the NCP, no
permit shall be required for any portion of the Work conducted
entirely on the Site. Where any portion of the Work requires a
federal or state permit or approval, Settling Defendant shall timely
submit. applications and take all other actions necessary to obtain
. . . l1L?fA... (,;e 0'~7-,,. -/,..-,,cl~• 0,.,,-;o/c✓.,-/,d"ij all such permits or approvals. Ur ,· r-rn, . ~_: · · : .• ·;; 1 _1. . .
0 I <;;;#, .,..1-f)?j{/Jc/4-,i-,'. >7 7'/,01 ,.; ;Jjf,-;'5 ./ /:..,, ," ~/y {.U' -i-l, a,rl°,I' 1
• -· ~)' -. .· . ~ , / // 0: / / -r:o· .L'/4. .c.ac/.J /JJ<' . /,,,.,.7::,/ :::_,r,-,l=-.s :l'/:cl. r?c. ....>;f;,-_I /c7 . ..u ..,. .J,., _, ,. , Cf· -.£' , I I ....// -,v-< /;..e ,,. 7 , ·cL~/~.:) ~. /CJ· £,/-f.f:_ :!-/✓('I-,-/-...~ ;~ f,,!/T~fa"'•/~ _;,_j,7"/J//1 ,;-///, f/ ,. / !_'\ ~.~ ._.) . .,..~.--·::·_.1/7' ,Y.?/1?" _L_ ._.(".. /' /. --, / .. ' -.. _./,-✓. i-/.:--,· ~L-, /',, /· /-.-, -
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; ... ..-, .·. -LJ l \ r\,
b. Section XIX (Force Majeure) shall govern any delay
the performance of the Work resulting from a failure to obtain,
delay° in obtaining, any permit required for the Work.
in
or
c. This Consent Decree is not, and'shall not be construed
to be, a permit issued pursuant to any federal or state statute or
regulation.
9 . Notice of Obligations to Successors-in-Title
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a. Within 15 days after the
the Settling Defendant shall record a
entry of this Consent Decree, I
,{/077/45
c,-rt if.i.,-,;i ci;ipy of this Consent
Decree a.oo-a map indicating the areas of eentarninatien on the site I
with the Recorder's Office, Rowan County, State of North Carolina.
Thereafter, each deed, title, or other instrument of conveyance for I
property included in the Site shall contain a notice
prcperty is subject to this Consent Decree and shall
stating that the 1 reference the
recorded loeaeieH ef the Consent Decree and any restrictions I applicable to the property under this Consent Decree.
b. The obligations of the Settling Defendant with respect I
to the provision of access under Section X (Access) shall be binding
upon the Settling Defendant and any and all persons who subsequently
acquire any such interest or portion thereof (hereinafter
"Successors-in-Title"). Within 10 days after the entry of this
Consent Decree, Settling Defendant shall record at the Registry of
Deeds, or other offices where land ownership and trans_fer records are
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maintained for the property, a notice of obligati~U--'--'!._:provide access I
and related covenants in the form set
subsequent deed to
forth in~
///1.,'1 a,~
Each I
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any such property included in the Site shall reference the recorded
location of such notice and covenants applicable to. the property.
c. The Settling Defendant and any Successor-in-Title shall,
at least 30 days prior to the conveyance of any such interest, give
written notice of this Consent Decree to .the grantee and written
notice to EPA and the State of the proposed conveyance, including the
name and address of the grantee, and the date on which notice of the
Consent Decree was given the grantee. In the event of any
conveyance, the Settling Defendant's obligations under this Consent
Decree shall continue to be met by the Settling Defendant. In
addition, if the United States and the State approve, the grantee may
meet the Settling Defendant's obligations under this Consent Decree.
In no event shall the conveyance of an interest in property which
includes, or is a portion of, the Site release or otherwise affect
the liability of the Settling Defendant to comply with the Consent
Decree.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANT {S)
10. Selection of Supervising Contractor.
a. All asp~cts of the work to be performed by the Settling
Defendant pursuant to Sections VI (Performance of the Work by
Settling Defendant), VII (Additional Response Actions), VIII (U.S.
EPA Periodic Review), and IX (Quality Assurance, Sampling and Data
Analysis) of __ this Consent Decree shall be under the direction and
supervision of the Supervising Contractor, the selection of which
shall be subject to approval·
,.;. ..
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by EPA/after a reasonable opportunity for review and comment by the
0 I State. Within_),;JYdays after the entry of this Consent Decree, the
Settling Defendant shall notify EPA and the State in writing of the
name, title, and qualifications of any contractor proposed to be the
Supervising.Contractor. If at any time thereafter the Settling
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Defendant proposes to change a Supervising Contractor, the Settling
if.If ski/ ;lu.1· Defendant, sh.all give such notice to EPA and the State and i;lu1.ll
,'he-~cm0,,, 17 /4 ,e,,,,.s= 61; tJ,5).,.,,-f-6, !:.de,/, o;,~l>f~
obt.cfiiv approval from EP.•,, ·aft:er a reasonable opportunity for review .
_and comment by the State, before the new Supervising Contractor I
performs any Work under this Consent Decree. I
b. EPA shall notify o/ Settlin~ Defendant in writing of
w,l,f,/\ '2c ea/4,,,d;v ~5 ~. 1 rs /'1?/48'fr . f"9,/., r<. 1 EflCl '.h rt'S.f"I'
its approval or disapproval~of a proposed Supervising Contractor.af,:f /2a~ mas,tn;,,-ik, QU(,';C.. -lo . . t!!.-
EPMdisapprove, of EH0-selection of any~o~OEffiR~t.~r~a~s~t~o~~i;..... •• ,..i; Supervising 1 Contractor, the Settling Defendant shall submit a .list of
contractors, including the qualific~tions of e~ch contractor, that I
5:,#{ "7 ~/'fl; l7t C/4/e ,cj;j '
would be acceptable to 1=hem to EPA within 30Jdays of receipt 9f EPA's
I w, ,/.f,,, '2 0 Qt/r?/lhr ch-/LJ I
disapproval of the contractor previously selected. EPA shal;~rovide
written notice of the names of the contractor(s) that it approves. '
Settling Defendant may select any approved contractor from that list I·
and shall notify EPA of the name of the contractor selected within 211
C,t)t,n/41" days of EPA's designation of approved contractors, If EPA fails to
provide written notice of its approval or 'disapproval of the names onl
the list as provided in this paragraph and this failure prevents the
Settling Defendant: from meeting one or more deadlines in a plan
approved by the EPA pursuant to this Consent
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Decree, Settling Defendant may seek relief under the provisions of
Section XIX (Force Majeure) hereof.
VII. ADDITIONAL RESPONSE ACTIONS (S)
11. In the event that EPA or the Settling Defendant determines
that additional response actions are necessary to carry out the
{)J(l',-f/::,f)
Response Actions selected in the ROD,~notification of such additional
Ol)cl A JJsl,/:-0:, f-,~ ,!A,:.,,-~ ,c
response actions~shall be provided to the Project Coordinator for th8
other party. /,
4-? um u Nj
12. Within ~Adays of receipt
{J)r; 1/4,r,
ofJnotice from EPA that additional I response actions are necessary to carry out the Response Actions
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selected in the ROD or such longer time specified by EPA, Settling
Defendant shall submit for approval by EPA, after reasonable
opportunity for review and. co<:ent by> ;:he State, a wo.1:k plan for the
!~ __ IYf!;J~
additional response actions.. pon~approval of the plan pursuant to
Section XII (Submissions Requiring Agency Approval),. Settling
Defendant shall implement the plan for additional response acLion in
accordance with the schedule contained therein.
~additional response actions that Settling~.
determines ar~o carry out the Response tions selected
in the ROD shall be subject-to approval PA, after reasonable ---. --opportunity for review and commen byth<;J State, and, if authorized
. . ---------by EPA, shall be completed by Settling Defendant 'in -accordance with . ~ .. __
----plans, /icatio.ns, and schedules approved by EPA pursuant ·to.
Section XII (Submissions Requiring Agency Approval) . .,.
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14. Settling Defendant may invoke the procedures set forth in
section XX (Dispute Resolution) to dispute EPA's determination that I
additional response actions are necessary to carry out the Response I Actions selected in the ROD, as-being -.arbitrary-and -capr-ie-ious-or
----e t--h e rw-i--s e-n et;-i-n-a c cord ane e-w-i--tch--1-a w.
on t_he administrative record.
Such dispute shall be resolved.
I 8;Jtfr1-f---------------VIII. U.S. EPA PERIODIC REVIEW (5)
~-1~ Until such time as EPA notifies the Settling Defend~/· I
pursuant 'to Paragraph 41 of Section XV (Certification of Coriipletion),.
Settling D~endant shall conduct any studies and investi{ations as ~ //
requested by E~·n order to permit EPA to conduct rev~ew at least
-/ every five years a required by Section-12l(c) of/CERCLA and any
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16. If required by\;~ctions 113(j)(2) or 117 of CERCLA, Settling.
Defendant and the public ~11 be provide/with an opp0rtunity to
comment on any additional re~~se act~is proposed by EPA as a
result of the review conducted p~ ua~ to Ser.tion 12l(c) of CERCLA
and to_submit written comments for/t record during the public
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mission of written comments I
is closed, the Regional Admi~istrator, Reg'i9n IV, shall determine in
writing whether additionai/response actions ~re appropriate. I
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comment period. After the per,xod for s
17. If the Regiorial Administrator, EPA Regi~n IV determines that
information recei_ved, in whole or in part, during\tre-review I
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conducted pursuant to Section 12l(c) of CERCLA, indicates that the
Response Actions are not protective of human health I
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· VIII. U.S. E p ~; I [DE:.;az&tr~~aer. r"wm'Y'
To the extent required by Section 12l(c) of CERCLA, 42 ·
u.s.c. § 962l(cJ, and any applicable regulations, EPA shall
review the Remedial Action at th.e Site at least every five (SJ
years after the entry.of this Consent Decree to assure that
human health and the environment are being protected by the Work
implemented pursuant to this Consent Decree. Prior to
Certification of Completion of the Work p~rsuant to Section XVI,
' settling Defendants shall conduct the requisite studies,
investigations, or other response actions as determined
necessary by EPA in order to p€Dnit EPA to conduct the review of
the Site required by Section 12l(c) of CERCLA, 42 U.S.C.
§ 962l(c). If, upon such review, EPA determines prior to the
Certification of the Completion .of the Wo=k pursuant to Section
XVI that further response action in accordance with Section 104
or 106 of CERCLA, 9 u.s.c. S,S 9Ji0<\, OF 9604, ,is appropriate at / /f.--z:::j}4--:54tl; .11a7,~ ~"J ~/ldtr0 ,,;i w/','7',"J "/ _,L{c_ /'ec;,J.,,__ ;,,;.TJ . ~ the Site ,4 Settling Defendants shall implement such action. Any /4, IJ" :
dispute regarding the necessity for or scope of such further ~~,j
response action shall be sPbject to judicial review pursuant to
the dispute resolution provisions in Section XXI hereof to the
extent pennitted by, and in accordance with, Section 113 of
e. /.vf, I
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qnd
CERCLA, 42 U.S.C. § 9613.
B. Settling Defendants and the public shall be provided
with an opportunity to confer with EPA on any additional
activities proposed by EPA during the five (SJ-year review
process and to submit.written comments for the record during the
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public comment period. After Lhc period for submission of I written comments is closed, the Regional Administrator, EPA
Region IV, shall in writing, determine if additional activities I
are appropriate.
In the event that EPA or the Settling Defendants1/
deteD!l(,: that additional work, including additional w ;'
identifie' . during the CERCLA Section 121 ( c) revz::· ew /~ess, is
n.ecessary to· eet the cleanup goals set forth in he ROD or to
·, ' , ' .
protect human n or the environment, notiJ cation of such
additional work be provided to the Profect Coordinator for , L/ / the other party. '· ✓ " .... , .,,
', Any additiona wor~ determin be necessary by
Settling Deiendants is. s , je<:_t to -7,i~val by EPA and shall be
B.
. ', . / /
completed by Settling Defen'°qanx~· accordance with submittals
approved by EPA pursuant to S 'c,tfon XIII.
/ .· . \,
Any additional wo~k,de rmined to be necessary by EPA
/ /
c.
,/ ,'./
shall be completed by s 7t~ing Def
,,/ ,"
submittals approved by' ~PA pursuant t
in accordance with the
// D. Unless ot~ezyise stated by
shall submit, fo/4p'~roval by EPA, ... .'
Defendants
the
/ ..
additional wor)( within thirty (30) days of
_✓/'. of notice by
EPA that ad71tional work is necessary. conform
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to the re.qui'.i::ements in Section VII as appropriate.
approvr{';,p~rsuant to the procedures :Set forth in se·cti
Settt{~ Defendants shall implement the plan for additio 7
XIII,
i accordance with thp schedule contained therein;
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and the environment, the Settling Defendant shall undertake any
additional response actions EPA has determined are appropriate.
However, the Settling Defendant may ~~voke the procedures set forth
··, ~ --
in Section XX ( Dispute Resolu_t.i:a°n·)'·to.___ dispute EPA' s determination _.,.,.. · ....
that additional resp9ns~tions are ap~ropriate or the additional _,,,?" ---~
response acti rr'order~d as being arbitrary and'capricious or
. ~, in accordance with law. Such a disputa_____shall be
solved on the administrative record.
X. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS (8:,)
18. Settling Defendant shall use quality assurance, quality
control, and chain of custody procedures for all environmental design
compliance and monitoring samples in accordance with EPA's "Interim
Guidelines and Specifications For Preparing Quality Assurance Project
Plans" (QAM-005/80), "Data Quality Objective Guidance"
(EPA/540/G87/003 .~nd 004) and subsequent amendments to such . l}Jf,tt\r\
guidelines uponAnotification to Settling Defendant of such amendment
by EPA. Amended.guidelines shall apply only to procedures conducted I -'after such notification. Prior to the commencement of any monitoring
project under this Consent Decree, Settling Defendant shall submit
for approval by EPA, after a reasonable opportunity for review and
comment by the State, a Quality Assurance Project Plan ("QAPP") to I
EPA and the State that is consistent with the SOW and the NCP. If
relevant to the proceeding, validated, sampling data generated in
accordance with the QAPP(s) and reviewed and approved by EPA shall be
admissl°ble as evidence, withett-t.-ee-:j-e~<>n-, in any proceeding under -
this Decree. Settling Defendant shall assure<
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that EPA and State personnel and their authorized representatives
rP,v.~1.:;(,f.. ('..J-,.,.~ .... ~:.;-~•··_• (..-.-< n •Y--:-·.:...:::.
allowed~access&o all laboratories utilized by Settling Defendant in I
implementing this Consent Decree. -I-ft-addition, Settling Defendant
-sha-l-±---a&&1.1r-e-t-ha t-s ueh--l-aber-a~-es·-9 ha 11 ana±-yze4t-:l+-sfilllpl€s
-submitted-by-EPA -purs~aflt-to-t-he~APP--f~r--qua 1-ity--as s urance -
-rnon-i-tor--i-n~~Settling Defendant shall ensure that the laboratories
..:tilized by it for the analysis of samples taken pursuant to this
Decree perform all analyses according to accepted EPA methods.
I Accepted EPA methods consist of those. methods which are documented
the "Contract Lab Program Statement of Work for Inorganic Analysis"
and the "Contract Lab Program Statement of Work for Organic
Analysis," dated Febr..1ary 1988, and any amendments made thereto
during the course of the implementation of this Decree. Settling
Defendant_·shall ensure that all laboratories used by them for
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analysis of samples taken pursuant to this Consent Decree participate I
in an EPA or EPA-equivalent QA/QC program.
19. Upon request, the Settling Defendant shall allow split or I
duplicat~~P.les/_to.: _pe,1taken/ by EPA <}nd/ ;the State J .,thiµ.r,-f // /?2S J 1 a /)I:! 5 r',4 d $, z:-'i ' .::, 71;->"G s7,-;_ /. ">? ~ <'. e, VY" a , '°" > /-<_ ~ s' L rr!', ~ c;i,_:rona Ii,, 771 <-I
<>f C/1.J a't.1'tid'/iied r~re1e'Etci:tiit;'!'~ettling Defendant shall notify EPA and
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the State not less than* days in advance of any sample collection
activity. In addition, EPA and the State shall have the right to I
take any additional samples that EPA or the State deem ~ecessary., _■
. t7;1o/','Z);--.;,,,.// mt// r3f(.,_.
Upon request, EPA and ttie State.shall allow the et ing De en ant~
take split or
~le£ </4?1/
/1'-Cb; s //')
duplicate samples of any samples it takes . ..:. /J4 e7"d/ A'cl
no/~ -,,1,,(c-5:'e #/ 7 Zx /e ,,e,,~ ~ 7 ✓; o ;I-/2$,i -/4,, '<
S:o ,,,,..,-p /<-C.. ;/<V-f / ~, c~<.. -/r v ' 7/ · I
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20. Within 7 days of afrequest by EPA or the State, Se~_tling
('"//).") / Defendant shall submit to EPA and the State 4 copies of theAresults
of all sampling and/or tests or other data obtained.or generated by
or on behalf of Settling Defendant with respect to the Site and/or
the implementation of this Consent Decree.
21. Notwithstanding any provision of this Consent Decree, the
United States and the State hereby retain all of their information
gathering and inspecti_;m authorities and rights, including
enforcement actions related thereto, under CERCLA, RCRA and any other
applicable statutes or regulations'.
X. ACCESS (A/S)
22. Commencing upon the date of lodging of this Consent Decree
and continuing until EPA notifies the Settling Defendant pursuant to
Paragraph 41 of Section XIV. (Certification of Completion), the
Settling Defendant agrees that the United States, the State and th~ir
. r(¼ :,,m:; ble. representa~+ves, including EPA and its contractors, shall have~access r&;,.5,ei'1ab/f-.
at -a±-±-times to the Site and other property to which access is
required _ for the implementation of th,is Consent Decre_e.,, tp the extent . · . C,?(!" -t-o Ae, ~/1/ S,-,A ~s <>"U:c, /J 0 7 t</J ru-.xmc: O''j /rrr4..,.,r,::-,(. t,J,-rA rcsr·-·
access to the property is controlled by Settling Defendant,Jfor the
purposes of conducting any activity authorized by or related to
CERCLA, RCR:lt, the IICP er this Consent_ Decree including, but not I limited to:
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a. Monitoring the Work;
b. Verifying any data or information submitted to the
United States;
or near the Site;
<l. Obtaining
P-',-,;_.,,:r,1T
samples/;
e. Assessing the need for, planning, ·or implementing
additiop.al response action;; at or nea.r1 the Site;/ 5o!J'~ /4 SJ-lf/,ny '[)etf,n(f.,nTs' !7U.J&n•bk 4-f't°,,-....,~,
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I f.f Inspecting and copyin<4record~, operating logs,
l/)&1~,,./'i(o/eo[ hf)due.-ol 7-~,-S contracts, or other documents maintaine-r generated Settling ~:i.~lda~~;ts =rc~rw,JI -t;,_, ~""/-¼r"C
Consent
>
2 3.
g. Assessing Settling Defendant's compliance with this
Decree.
To the extent that the Site or any other property to which
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access is required for the implementation·of this Consent Decree is I
owned or controlled by persons other th~n Settling Defend~nt,
rf4.)F;Yi~ biv I
Settling Defendant shall use bestiefforts to secure from such persons
access for Settling Defendant, ·as well as for the United States and
its representatives, including, but not limited to, EPA, the State
and their contra.ctors, . as necessary to effectuate this Consent
ru>&M6k,'
Decree. For purposes of this paragraph "best/efforts~ includes ~he
payment of reasonable sums of money in consideration of access. If
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any access required to complete the Work is not obtained within~
bu
days of the date of entry of this Consent Decree, or within ~days
of the date EPA notifies the Settling Defendant in writing that
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Settling Defendant shall promptly notify the United States, and shall.
include in that notification a summary of the steps Settling
Defendant has taken to attempt to obtain access .. The United I
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States or the State may, as it deems appropriate, assist Settling
Defendant in obtaining access.
24. Notwithstanding any provision of this Consent Decree, the
United States and the State retain all of their access authorities
and rights, including enforcement authorities related thereto, under
CERCLA, RCRA and any other applicable statute or regulations.
XI. REPORTING REQUIREMENTS (BJ
25. In addition to any other r·equ_irement of. this Consent Decree,
Settling Defendant shall submit to EPA.and the State 2 copies of
written monthly progress reports hich: (a) describe tr.e actions
which have been taken toward achieving compliance with this Consen1, ,J
. . va/,dc..?..; Decree during the previous month; (b) include a summary of ~11~
results of sampling and tests p.nd all other data received or
generated by Settling Defendant or its contractors or agents in the
previous month; (c) identified all work plans, plans and other
deliverables required by this Consent Decree complet~d and submitted
during the previous month; (d) descr~be all actions, including, but
not limited to, data collection and implementation ~f work plans,
which are scheduled for the next month and provide other information
l · h fAr-~4'1.t. ·. ld" b 1·· d re ating tote progress o eons-eEion, inc u ing ut not J..mite
to, critical path diagrams, Gantt charts and Pert charts; (e) include
information regarding percentage of completion, unresolved delays
encountered or anticipated that may affect the future schedule for
implementation of the Work, and a description of efforts made to
miti9ate those delays or
'-'.::? ~f 1. /4,<,;f · rx. /leru,_e_,f or o'el0c1t0~ ?~
_/4'-W.-, . "7' )fAM/~ ~. C( (Vi) a c.,l ( 1/c r; ~ f-r;-/4.e
. ll.,edc.;,_ f w 5 7'". ( i7li eO. d,( ~v ~&.~1 ~1/
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I anticipated delays; (--f-)-i-n0-l.·ude-any--m0di-f-ica t ion-of-t-he--wor-k-plans-or--
other schedules that Settling Defendant has submi·tted-to EPA--Ol:'-t-hat: I
h-ave-been approved by EPA-:--and---f-g-)--<leseci-be-aH-ac-t-i-v-i-t-ies-undertakcn
--±n--support-of -the-Community-Relations -Plan du~ing -the --previous-month I
-and-those .. to be .. undertaken in -the next .month. Settling Defendant I
_shall submit these
day of every month
progress rep9_,rts to EPA and ~ n"-<'--/!ve ~
following the.Jentry of th;_s
the State by the tenth
~onsent Decree until I
Certification of Completion of the Respon~e Actions pursuant to
IE Le11qe,1 ed J l' ~Pf-ifl,~:5tl
periodic briefingjfor I
, Section XV. (Certification of Completion).
/??~ «.c,5QJ,, 6 ).; tJ(} $ f-
the State,~ · hell p:i;a¼ide
EPA and the State to discuss the progress of the Work.
26. Upon the occurrence of any event dur;.ng performance of the I
Work that Settling Defendant i3 required to report pursuant to
Section. 103 of CERCLA or Section 304 of the Emergency Planning and I
Community Right-to-know Act (EPCRA), Settling Defendant shall within
24 hours of the on-set of such event orally nctify the EPA Project I
Coordinator or the Alternate EPA Project Coordinator (in the event of I
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 IV,
United States Environmental Protection Agency. These reporting
requirements are in addition to the reporting required by CERCLA
Section 103 or EPCRA Section 304. Within 20 days of the onset of
such an e~ent, Settling Defendarit shall furnish to Plaintiffs a
written-report, signed by the Settling -Defendant's Project
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Coordinator, setting forth the events which occurred and the measures
taken, and to be t~ken, in response thereto. Within 30 days of the
conclusion of such an event, Settling Defendant shall submit a report
setting forth all actions taken to respond thereto,
27. Settlinq Defendant shall submit to the Court,
the State each year, w~thin 30 days of the anniversary
and EPA and
e ff_,j, . .,.._
of the cr.623
of the Consent Decree, a reporc :etting forth the status of the Work,
which· shall at a minimum include a statement of major milestones
accomplished in the preceding year, a statement of tasks remaining to
be accomplished, and a schedule for implementation of the remaining
Work. Settling Defendant shall submit 4 copies of the report to EPA
and 4 copies of the report to t:1e State.
28. Settling Defendant shall sul:imit 4. copies of all .plans,
reports, and data required by the SOW or any other approved plans to
EPA in accordance with the schedules set forth in such plans.
S-ettlin~ bliiifeodart &hal+, si.multancoasly .!ltthmit copie.!I of all •U:cA
29. All reports and other documents submitted by Settling
Defendant to EPA (other than the monthly progress reports referred to
above) which purport to document Settling Defendant's compliance with
the terms of this Consent Decree shall be signed by an authorized
representative of the Settling Defendant,
XII. SUBMISSIONS REQUIRING AGENCY APPROVAL (!3)
t:,._;,..i/;,;., 15tb)5 rec.c.,p, of.
30. Af_ter review of~ any ptan, report or other item which is
, ' -_,I/ ,.,,
-,y,_,-,, ·,, , -'/ /·' r:, , .:,,
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I required to be submitted· for approval pursuant to this Consent
Decree~ EPA, after reasonable opportunity for review and co~ent by I t)d //) a r~-l--·)/f//,,,J/~ /,/,, ,,,: r/_.>f-r'c-"2..,,. ,,L',,4~ y .
the State, thal~ (a) approve, in whole or in part, the submission; I
defieiensies; or (f) any combination of the--aoove.
31; In the event of approval, approval upon conditions, or
modification by EPA, Settling Defendant shall proceed to take any
action required by the plan, report, or other item, as approved or
modified l:13 Bl?'t subject~ to its right to invoke the Dispute
R~solution procedures set forth in Section XX (Dispute Resolution),
--with-respect to the modifications or conditions made b)I EPA .. (,'/(,-10, '
32. Upon receipt of aAnotice of disapproval or a notice
~ requiring a modification, Settling Defendant shall, within j;f days
!tltCt-ot:ber t Lme es s11e,... i f i es±-by-:P:P:A ; 11 s1.1ch=noti:ce, correct the
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I deficiencies an~/,resubmit th~ plan, report, or oth~r item for & e '/') U& k£ z".~,:, ✓~..,,-=-~ {)/.; r/ /YI-, ,,.0 a, .:: , , :; P,, o/P,,, SZ!<;-r, 9>-i .,.(-:( I approvaU Notwithstandi,r\g the notice of disapproval, Settling ' /f V¼ j,ffe)4 /) /e. w ,-, t/e,,,)
Defendant shall/proceed, a_t the,,1 direction of EPA, to take any action 1 required by any non-deficient portion_ of t~e submission.
3 3 , In the-ev£nt that a resublll¼-H-€Ei-;3l-any-r-epor-t---er~er-±-tem •---J
or po~tj,on---thereof,,--i-s-<iicsapproved-by-EPA,~PA-may·-again-requ:i-re-t-he ---
-Set tl-ing--.De fendan t-to-correct --the def ic ienc ies ·,·-in --accordance .. with.-I
the --preceding--paragraphs. •·· EPA-also -retains -the• ....
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~~---ame,cid--er-eeve-1-op-the--plan,--report or:-other i-tem. -Subject
only to-its right-to-invoke procedures set for:th in Section-XX-,-
(Dispute Resolution), Settling Defendant shall implement any such
---plan, -report; or· i tern as amended or developed by -EPA.
34. If, upon the first resubmission or upon any subsequent . ,,,/
resubmission, the plan, report, or item is disapproved by/EPA,
/ ··-Sett: L. n g Deiend'.1nt shall be deemed to be in violatiori of the
//
provision of this Consent·oecree requiring the ettling Defendant to --._
submit such plan, report:'r-,Or item unless e Settling Defendant '· .
invokes the dispute resolutici'n .p~-~ce)>'res set forth in Section xx
(Dispute Resolution) and this C~~--._overturns EPA's disapproval
pursuant to that Section, t /provis~:~s· -o_f Section XX ( Dispute
.. ,.._ r~solutionl and Section I Stipulated Penalties) shall govern the
implementation of
penalties duri
e Work and accrual and payment-·of any stipulated •.
Dispute Resolution. Implementation o~·-·any portions
of the su issions which are not deficient shall not relieve ·settling ·,
Defe nt ·o_f any liability for stipulated penalties under section XXI
tipulated Penalties).
~~orts ,-and-oc-her--±tems-requ±red to b.,a;ubnuftec!--
to EPA und~~ee shall, upon approval by EPA be
deemed to be incorporated in a~nforceable part of this Consent ----·-. --Decree. In the event EPA approves a portion of--a -plan, report, or
. --~------othe_r item required to be submitted to EPA under this Consene-Decree, -------.:____ .
the approved portion shall be deemed
-25-
tQ_bEL.incorporated in .and an enforceable part of this Consent
-.. Decree,---
XIII. PROJECT COORDINATORS (B)
4'/tf!r Ae L-ffe.d-1 .X-Uc.-
3 6 • Within 20 days of lodgi1~ this Consent Decree, Settling
Defendant, the State and EPA shall. notify .each other, in writing,
of the name, address and telephone number of t.heir respective
designated Project Coordinators and Alternate Project
Coordinators. If a Project Coordinator or Alternate Project
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Coordinator initially designated is changed, the identity of the
successor shall be given to the other parties at least 5 working
days before the changes occur~ unl~ss impracticab-le, but in ne-
event--1-ater-t--han-the 0 a0-t-ua--l-<lay--t-he-Ghange-i,S-made. The Settling
Defendant's Project Coordinator shall have the technical
expertise sufficient to adequately oversee all aspects of the
Work. He or she may assign other representatives, including
other ··contractors, to serve as a Site represe.ntative for
oversight of performance of daily operations during response
activities.
37. Plaintiffs may designate other representatives,
including, but not limited to, EPA and State ;,,ifoyees, and
federal and State contractors and consul tan ts ,;1 tJ observe and
monitor the progress of any activity unde.rtaken 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) by the National Contingency Plan,
40 C.F.R. Part 300. In addition, EPA's ~reject Coordinator or
Alternate Project Coordinator shall have authority, consistent
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with the National Contingency Plan, to halt any Work required by
this Consent Decree and to take any necessary response action
when s/he determines that condition.s exist at the site t.l'lat.
-causes-or-threattellS a rei:ease of Wds te l!at,erial "'i'.~t constitute
an emergency situation or may present an immediate threat to
public health or welfare or the environment.
38. EPA's Project Coordinato.1.--and the Settling Derendant'-s
--Pi::-&j€ct Coordinaror shall meet, at a minim=, on a--month±y--bcl'Stl, I
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK (-S)
39. Within 30 days of lodging of this Consent Decree,
Settling Defendant shall establish and maintain financial
security in the amount of $151,000 in one of the following forms:
a. A surety bond guaranteeing performance for the Work;
.. b. One or more letters of credit equalling the total
estimated cost of the Work;
c. A trust fund;
d. A guarantee to perform the Work by one or.more
parent corporations, subsidiaries, or unrelated corporations
which have a substantial.business relationship with the Settling
Defendant; or
e. A demonstration that the Settling Defendant passes
the financial test specified in 40 C.F.R. Part 265.143(f).
40. If the Settling Defendant seeks to demonstrate the
ability to complete the Work through a guarantee bya third party
pursuant to Paragraph 39.d. of this Consent Decree,
" /4v, 0. -rt r,,;, 1 5 q "/1.,,0 · cu__Pr/4f I? o l)
. c.,C--G.. to /4e.5 M-f {)~v~f.,_ ~vr..T L.
b-. c;-,~-qt..,c..,z_ ~ .
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Settling Defendant shall demonstrate that the guarantor passes I
the financial test specified in 40 C.F.R. Part 265.143(f). If
Settling Defendant seeks to demonstrate its ability to complete
the Work by means of the financial test or the corporate
guarantee, it shall resubmit sworn statements conveying the
required information annually, on the anniversary of the f/J//;;;:,I
<;u},n,ssian [)f z/,/?cJ/'>C,/:,,/ 4o;surtiflCe
effeetive date ef this CeReent Seeree. In the event that EPA,
after a reaso~able opportunity for review and comment by the
~5entJ./J/j . ·
State,4deterrnines at any time that the financial assurances
provided pursuant to this Paragraph are inadequatfa, Settling
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Defendant shall, within 30 days of receipt oflfnotice of EPA's
determination, obtain and present to EPA for approval one of the
other forms of financial assurance listed in Paragraph 39 of this
Consent Decree. Settling Defendant's inability tu demonstrate
financial .ability to complete the Work -shall not excuse
performance of any activities required under this Consent Decree.
XV. CERTIFICATION OF COMPLETION A/5
41. Completion of the Response Actions
a. Within 90 days after;settling Defendant concludes
that soil sampling is no longer required and ~he Remeaial 1tet;.ion
ttodAr €tie fizst op ,al.le rnjt baa been fully fJerfeFffled, Settling
Defendant shall so certify to the United States and the State and
shall schedule and conduct a pre-certification inspection to be
attended by Settling Defendant, EPA and the State. Such
inspection shall be followed by a written report·submitted within
30 days of the inspection by a registered professional
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engineer and the Settling Defendant's Project Coordinator
certifying that soil sampling has been completed in full
satisfaction of the requirements of this Consent Decree. The
report shall contain the following statement, signed by a
responsible corporate official of the Settling Defendant or the
Settling Defendant's Project Coordin~tor:
"I certify that the information contained in or accompanying
this submission is true, accurate and completee."
w~/2 ,,, ~ o of,,, s 4 nk~, ~ -1-4 ,;,,,-fa=-< /'6:J?M f /~.,,,1 ~11/,,,J Ze~ di') l
If, after completion of the pre-eert-i-f-i-c-a-t-4:en-i-nspee.t---4con-and
f£ceipt and review of the wri.t-t-en----l'.'epor-4c-, EPA, after reasonable
opportunity to review and comment by the State, determines that
the soil sampling or any portion thereof-has not been completed
in accordance witA this Consent Decree, EP~ shall notify Settling
tJ/ # ~ /4.:es /2 ✓k ~,/J,,,-r11✓/"/d,,fVI a,, ~
Defendant in writing.(of the activitie·s that must be undertaken to
complete the Response·Actions. EPh shall set forth in tho notioo
--a--schedu-1-e-------fer--per-fonnance-of-such-ac-t-i-v-i-t--ies---'e<:lns±s~n-t---wi--th--the FP,.LJ ·
-GGnsen~cx:aa anci tbe sow oi:. shall require the Settling ·
Defendant to submit a schedule to EPA for approval pursuant to
Section XII (Submissions Requiring Agency Approval). Settling
Defendant shall perform all activities described in the notice in
accordance with the specifications and schedules established
pursuant to this paragraph, subject co its right to invoke the
dispute resolution procedure~ set forth in.Section XX (Dispute
Resolution) .
. b. If EPA concludes, based on the _initial or an~
subsequent Certification of Completion by Settli.ng Defendant and
after a reasonable opportunity for revie-.. and comment by the
)
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1,,-J" ,<;_.
State, that the-Res-po=e--Ae-t;ions have been fully perfomed in
accordance with this Consent Decree, EPA shall so certify in
writing to Settling Defendant.
constitute the Certification of
This certification shall
vv -1 fl.-IL-Completion of the Re2pon2e
,'>etions for purposes of this Consent Decree, including, but not
limited to, Section XXII (Covenants Not to Sue by Plaintiffs).
Certification of Completion 0f the Response Actions does not in
any way affect Settling Defendant's re,aining obligations under
this Consent Decree, including, but ,not limited to, access,
Operation and Maintenance, record retention, indemnification,
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insurance, and payment of Future Response Costs and penalties.\ I
,, 42. Completion of the Work
-~~-a_. Within· 90 days after Set::ling Defendant conclude I
that. al~ases. of tha Work ( includi.ng O & M), with th \,I
of the payme~f Future Response Costs associa this \
paragraph, have b~ fully perfomed, Set ing Defendant shall so I
certify to the Unit~dS tes and t State by submitting a
written report by a
that the Work, with
XXVI, has been
of this Con t Decree.
professional engineer certifying
the requirements of Section
in full satisfa
The report shall
ion of the requirements
the following
, signed by a responsible corporateofficia
endant or the Settling Defendant's project Coordinator:
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"I certify that t.he information
accompanying this submission is
complete.
contained in or
true, accurate and
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If, after re\iew of the written report, EPA, after reasofable
opportunity t;\\eview and comment by the State, deterufnes that
any portion of th\ Work, with the exception of the equirements
Consent Decree, EPA s,\11 notify Settling Defe dant in writing of
the activities that mu be undertaken to c mplete the Work. EPA
shall set forth in then ice a schedule or performance of such
activities consistent with he Consent ecree and the SOW or
shall require the Settling De endan
. /
for approval pursuant to Sectio II
to submit a schedule to EPA
(Submissions Requiring
activitie.s described in th notice accordance with the
Agency Approval). Settl~·ng D en nt shall ·perform all
specifications and sche les establis d therein, subject to its
right to invoke the
Section XX (Dispu
spute resolution
Resolution).
ocedures set forth in
b. I EPA concludes, based on the ·nitial or any
subsequent C rtification of Completion by
after a ;e/sonable opportunity for review
Setting Defendant and
/ State,/that the Work, with the exception I I Sec~ion XXVI has been fully performed in ,
and co\nt by the
of the re~ements
accordance wrth this
. "" . Defendant 1.n Consent Decree, EPA· shall so notify the Settling
,,,Jting.
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XVI. EMERGENCY REPSONSE .1 )J5)
43. In.~he event of any·action or occurrence during the
of
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performance of the Work which causes or threatens a release of
Waste Material that constitutes an emergency situation or may
present an immediate threat to public health or welfare or the
environment, Settling Defendant shall, subject to Paragraph 44,
immediately take all appropriate action to prevent, abate, or
minimize such release or threat of release, and shall immediately
~otify the EPA's Project Coordinator, or, if the Project
Coordinate::-is unavailable, EPA's Alternative Project
Coordinator. If neither of these persons is available, the
Settling Defendant shall notify the EPA Emergency Response Unit,
Region IV. Settling Defendant shall take such actions in I'?
6.,-.;J,e, t;;:1r111r5etJ'; ;c85p~"-
consultation with the EPA's Project CoordinatorAand in/accordance
with all applicable provisions of the Health and Safety Plans,
the Contingency Plans, or any other applicable plans or documents
developed pursuant to the SOW. In the event that Settling
Defendant fails to take appropriate response action as required
by this Section, and EPA or, as appropriate, the State takes such
action instead,,?ettlinq Defendant-shall reimburse EPA and the
f(2'fS ',Jn,:1 01-'-.-(7 /I iz' /)~ SR r'j ,
titate al:t,,!costs of the response action not inconsistent with th:
NCP. ·
44. Nothing in the preceding Paragraph or in this Consent
Decree shall be deemed to limit any authority of the United
States, or the State, to take, direct, or order all appropriate
action or to seek an order from the Court to protect human health
and the environment or to prevent, abate1 or minimize an actual
-· . . fe ;:::!"' > s J os:'7if /J, <--. • .
or threatened release o; Wa Material. on, at, or from the Site.
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xvr r. RE IY1'\URSE:-<1"N".' OF :'l!=:S ?ONSE C'.::S".'S ( 11: )
/
4.5. Within 30 days of the effective date of this Consent
Decree, Defendant shall: Settling
a. Pay ~ to EPA,4,145 464.6,, pl1,,1s interest on tltl-s-
-amGY-n-t.-a-t--t-he-r,.:i te es t-aM±shed-pu-r-suan t--to-CERCLA-Sect-ion -1 0 7
-from -the-date --l-±5-t-e<l---i--n-t-he-de f-i:n±t--io n--o-f---P as t-Re sponse-€-os ts-to-
-the-effective-date-of--thi-s-Gonsent-Decree, in the form of a
certified check or checks made payable to "EPA Hazardous
Substance Super.fund," and referencing CERCLA Number TGB04DPL7
and DOJ Case Number ---,---' in reimbursement of Jast 1J.espo9-se
. n~ f {;-OO~rw 6-;,_ --11;., /Jclm1/J rcr!,z,,-11 ve. c) reif,,r ~ Cc-n $('/1 D• ok f M . ~ 7-ol-C.
CostsA The Settling Defendant shall forward the certified check /
to EPA Region IV, Attn: Super.fund Accounting, P.O. Box 100142,
Atlanta, Georgia 30384; Attn: Collection Officer for Superfund.
The Settling D~fendant shall send copies of the check to the
United States.
46. Settling
and the State for
Defendant shall reimburse
('~ 5tJ7),:; b /4., 4 r, c/ /J Ub 5 So f"'j
al1.J\Future Response Costs
the United States
not inconsistent
with the National Contingency Plan incurred by the United States
and the State., The United States and the State shall each send
8YI al) uflnu<1.[ /x$15
Settling Defendant a billnrequiring payment that includes an
. ~-"<: I' ;,,. /1,<--,'., o,, ~ r .
appropriate/accounting of costs, which includes all direct and
indirect costs incurred by EPA, DOJ and the State and their
contractors on a periodic bas_is. Settling· Defendant: shall make
all payments in the manner described in Paragraph 45, within 30
days of Settling Defendant's receipt of each bill requiring
payment·, except as otherwise provided in Paragraph 4 7.
47. Settling Defendant may contest payment of any Future
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response Costs under Paragraph 46 if it determines that the I
United States or the State has made an accounting error or if it
alleges tha,t: a _cost item that/ is included represents costs which ·/ 17 GJ/Z ch(_ Co7-l-clacun?,,,,, fr.r•o0 I..S 10sJr,.:.-/Pn; 7'P drc1/'M,,-,-<!, .Jf-/ are iricons is tent with the NCP/4 Such objection shall be made in tu<t .S■·
re,a.-54-1 writing within 30 days of receipt of the bill and must be sent tf"n,/ lf]c
to the United States (if the United States' accounting is being~fl
disputed) or the State (if the State's accounting is being tJ::i/7:::;i,.
disputed) pursuant to Section XXVII (Notices and Submissions),
Any such objection shall specifically identify the contested,
Future Response Costs to the United States or the State in the I
manner described in Paragraph 47. Simultaneously, the Settling I
Defendant shall establish an interest bearing escrow account-¼,ft-
a bank duly chartered in the State of North Caroline. and remit
to that escrow account funds equivalent to the amount of the
contested Future Response Costs. The Settling Defendant shall
send to the United States and the State 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 ac_count, including, but not
limited to, information containing the identity of ·the bank and
bank account under which the escrow account is established as
well as a bank statement showing the initial balance of the
escrow account. Simultaneously with establishment of the escrow
account, the Settling Defendant shall initiate the Dispute
Resolution procedures in Section XX (Dispute Resolution). If
the United States or the State prevails in the dispute, within J /5
days of the resolution of the dispute, the Settling Defendant
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shall direct the escrow holder to remit the escrowed monies
(with accrued interest) to the United States or the State, if
State costs are disputed, in the manner described in ParagraEJh
45. If the Settling Defendant prevails concerning any aspect of
the contested costs, the Settling Defendant shall direct the
escrow holder to remit payment for that portion of the costs
(plus associated ·accrued interest) for which it did not prevail
to the United States or the State, if State costs are disputed,
in the manner described in Paragraph 45; Settling Defendant I
shall be disbursed the balance of the escrow account. ~Ae
di5pute--TeSolutiori-procedureS4;eL forth in th±-s-par-a~ph-s-h-aH-
---be-t-he-e~e-l-u£ci.-ve-mee-han-i-sm-f~-eso lvi ng diGpU-te~-eg ardi R':J' t t:ie
Set.tling-.Defendant!...s--0bl~gat-i-0n-t~e--Uni~-ed--&tates
.-and~e State-f-or--t-hei-r~esponse--Cos.ts .. -
48. In the event that the payments required by Paragraph 45
are not made within 30 days of the effective date of this
Consent Decree or the payments required by Paragraph 46 within
30 days of the Settling Defendant's receipt of the_bill,
Settling Defendant shall pay interest on the unpaid balance ac
the rate established pursuant to Section 107(a) of CERCLA, 42
U.S.C. S 9607. The inter<;_~pn P~st Response Costs shall begin
ct(4dl ~ oi, 7<:..--· .
to accrue 30 days after 0 ntr:y of the Consent Decree. The
interest on Future Response Costs shall begin to accrue 30 days
after the Settling Defendant's receipt of the bill. Payments
made under this paragraph shall be in addition to such other
O·
remedies or sanctions available to Plaintiffs by virtue of
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Settling Defendant's failure to make timely payments under this
Section.
XVII. INDEMNIFICATION AND INSURANCE /;/'5)
·4 9. 'I'he United States and--tl,e State do not assume any
"-H..abi..J.-i-t y-by-e n te r-4.-ng-¼fl to-4;-h.i-s -a.greement--o r-41~ny-
--<l~-iGR~ett-l.J...ng-Derenda-rna---a-s EP.~.' s author--ked-
--£epr-esentatives -under--6ec-t--ion-¼04i-e-j ef CERC---bA.-Sett! ing
Defendant shall indemnify, save and hold harmless the V~ired
States, the State, and their officials, agents, employees,
'contractors, subeentraetors, or representatives for or from any
and all claims or causes of action ~&ts incurre.I by t.he
'-ll n·H:-ed--6 ta t--e s ·-or·· -toh e-St-a t e i nc:.1.--uGi-Rg~ t--no t--l-,i,rn.i...t.ed-t.o-,-
-a t-te rn ey s -fees T-and--ot-he r expenses-Q·f-----l-¼t-igat-ien-a.nd-set-':~-ement--
arising from, or on account of, acts or emissions of Settling
Defendant its officers, directors, employees, agents, ... ·
contractors, subcontractors, and any persons acting on its
behalf or under its control, in ca!. ing out activities ~ursuant . , (I n-:ea.., *_,f.,___=--
to this Consent Decree/\ ineludinEJ, ut-not--l-imi--ted to, any
c J a i rns atis.i.ng-f~-om--any-des-i.-gnat-4.-en--of Settlin<j-pefendane--as-
EPALs--aut-h~~s~e-ndec--Section-4--04-{-e+-ot-GERCLA~
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 the Settling Defendant nor any such contractor
shall be considere_d an agent of the .United States or the State.
50. Settling _Defendant waives, and shall indemnify ar>.d hold
harml_ess the United States and the State with respect to, any
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DRAFT l
in carrying out activities pursuant to this Consent Decree, except
for actions ordered by EPA's Project Coordinator without the
concurrence of the Settling Defendants' Project Coordinator, and
executed by the Settling Defendants in a non-negligent manner at
the direction of EPA's Project Coordinator. [Limestone Road Site,
Region 3, 1989]. Settling Defendants will not indemnify EPA
against the negligent acts or omissions of the EPA, EPA's
employees, agents, contractors or subcbntractors, or any persons
acting on behalf of or under the control of EPA. Plaintiff shall
indemnify and save and hold harmles~ Settling Defendants, their
agents, employees, contractors and subcontractors, from any and all
claims or causes of action arising from nr on account of acts or
omissions by Plaintiff, 5 ts agents, ·employees and independent
-contractors and subcontractors, and any person acting on
Plaintiff's behalf or under Plaintiff's control, in carrying out
activities pursuant to this Consent DecrP.e.
l j fk /38423/ 44002 /docs/ consent. 1 •~pr 22 11:58:07 1991 .
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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, but not limited to, claims on account of
construction delays.
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51. No later than 25 days after the effective date of this J
Consent Decree, Settling Defendant s)lall secure, and shall t,,.,,:;e ,!),,sf "' 7Z.;-/>?-' ,y;-/;, iYJ ;)-f' / /) /.5 U,,, S:G O -f Dz<:,~ : I maintain until the ilrst: anniversary of EPA· s eer Lifice.tion of
Completio~e--Respons-e.....,.,_ct±ons--p=suant Lo Paragraph 42.b.
of S@ction KIV. (Certification of Completion) comprehensive
general liability and automobile insurance with limits of 1
million dollar, combined single limit naming as insured the
United States and the State. In addition, for the duration of
this Consent Decree, Settling Defendant-shall satisfy, or shall
ensure that its contractors er subcontractors satisfy all
applicable laws and regulations regarding the provision of
worker's compensation insurance for all persons performing the
Work on behalf of Settling Defendant in furtherance of this
Consent Decree. Prior ~e cemmeneement: of the-War~ this
Consent Decree, Settling Defendant shall provide
State certificates of such insurance and a copy each·
insurance policy. Settling Defendant shal resubmit such
copies of polic:i,~s~year on the anniversary certificates arid
. /
of the.effective date of this.Consent Decree. If Settling _..,.· ,-
Defendant demonstrate; by
. -----
State tha~ contractor ___.,,.., . ~-.
evidence satisfactory to EPA and the
or subcontractor maintains insurance
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D
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-e{Jtttv-a-l-efl-t-t--e---th-t,-t-de s c r i·bed -a bove,o r-tn s u r a nc e -coev.e ri rrg "'"the·
same risks but in a lesser amount, then, with respect to that
contractor or subcontractor, Settling Defendant need provi~e ---· only that p_oz:t~f the insurance described above which is not
maiR~ by the contractor or subcontractor. ,/
_..,/ XIX. FORCE MAJEURE (IJS)
52. '"Force majeure," for purposes of this Consent Decree1 ru.so~b~ is defined a~ c~y event arising from causes beyond tho/)control
of the Settling Defendani or of any entity eontrolled by
Settling rlefendaftt, inc¾ding, but not lhuited to, its
eontraetors and sttbcontractois, that delays or prevents the
performance of any obligation under this Consent Decree despite
Settling Defe1,dant's best efforts to fulfill the obligation.
The requirement that the Settling Defendant exercise "best
efforts to fulfill the obligation. ~he req,:,.i~he
Settling Defendant exercise "best efforts to ~the /'
obligation" ittcludes using best effort o anticipate any
~otential force majeure even efforts to address the
effeccs of any pote~ force majeure even't: (1) as it is
occurring and Xfollowing the potential force majeure event
such that delay is minimized to the greatest extent
pos_s.ible. "Force Majeure" does not include financial inability
/
to complete the Wor.,.k-.--~----
53. If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Decree, whether
or .not caused by a fo.rce majeure event, the Settling Defei;dant
sfiall notify by tele~hone EPA's Project Coordinator or, in his
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or her absence, EPA's Alternate Project Coordinator or, in the I
event both of EPA's designated representatives are unavailable,
the Director of the Hazardous Waste Management Division, EPA I . l ']._ L,JC:lf_,"1 Cia.-; 5 Region IV, within 48 hours of when Settling Defendant first know 1 r(!,1 ',C,l,f 1;,1/--; . . ornshould 'have known that ttip/'."ev~mt might cause delay. Within~ /O ,/ ~,,.._h,,e /) q:,,i'"•('.'.A'f-..,a,... working days tRQ~QaftQ., Settling Defendant shall provide in I
writing to EPA and the State 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; tho Sottli~g
Defendant's rationale far attributing suoh delay to a ~-Or~
~ajeu~vent--i4:-----¼-t--i.~nds to a~4;-Suoh a ola4.m; and a
statement as to whether, in the opinion of the Settling
Defendant, such event may cause or contribute to an endangerment
to public health, welfare or the environment. The Settling
9efendaftt shall iReh1de with any notiee all a•.-ailable
--documentation supporting its claim tltat the delay ~as
,attributable tea feree ma1<?ure, Failure to comply with the
above requirements shall preclude Settling Defendant from
asserting any claim of force majeure ., -settling Oefenda~-
be deemed to have notice-o-f-any--c¼rcumsta~--i-ts--
~r--or--subcorn:ractor-had·-or-s houl-d·-have-had --notice-. ---
54. If EPA, after a reasonable opportunity for review and
comment by the State, agrees that the delay or anticipated delay
is attributable to a force majeure event, -the---tJ.me--f01:--
.pe.r.formance--of .. _.the -obl iga t-ion--under--t~±s-· Consent--O_ecree-tha t--j:s -
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.// ~-.// :1s / -39:: _ , ,,,-//, /,, : ,/,' t3,P// ,? /) _-/ 7'")c' _;C 1"/1//> t,,},:: ,,'c' ~,J / ~ /,~ // //). ,,,/, // _ -r"/; c:_,, vf/.'.J? ,k, I 'J -.
affected-by-tshe-for;:e-inajeure-event -shall be extended-by-written ro ~ ro u , c/4,, o / /, T/ &-n " J -r{ /Y? c ,,-, c ,, n ,,,,, < • /,u_ /J 0-<..{ .s " . , r'--
--agreement -of EPA1 after---a -reasonable ;,opportunity for --review -and /4 Cer'Pc!~,, :~ 'f-"-✓,r, -;/,i-:: oPr,L,,-J ,
-comment !Sy the State,and the S~ttling' Defendant for such -time
-as--is--necessary---to-complet-<:-t-hose-obl-igat-ions -af-f-ect-ed-by~e--
·-fe-FGB-ma-3 e u.1ce -even t--6 ha-1-1-not-,-e-f-i-t s e-l-f-ex t-<: oo--t-h e -t-ime-fo r
performance of any-subsequent obligatiun.
55. If EPA, after a reasonable opportunity for review and
comment by the State, does not agree that the delay or
anticipated delay has been or will be caused by a force majeure
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event, or if EPA, after a reasonable opportunity for review and
comment by the State and the Settling Defendant does not agree
on the length of the extension for performance of the
obligations affected by a force /l)ajeure event, ~PA shall notify
t,v I -I/; I h 5 L<).&, k.1 ~ °':1i H -,,Ii<-~J ,<_
the Set1:ling Defendant in writin~of-its decision concerning
whether the delay is attributable to a force majeure event or
the length of the extension for performance of the obligations
affected by a force majeure event. If the Settling Defendant
elects to invoke the dispute resolution procedures set forth in
Section ~X -( Dispute Resolution) , it ,s,ha).,~ dq, so no/ later/ tJ1an 15 tum£,,
· t,J,.,fi,, t/&h, /, "j -Pl t-Mi7' J re_ a 11 D!£S) 5 , -,4n S: " c, I, .
days after receipt of EPA' s,1 notice/. In any such proceeding, clts:.":)&€'mP"
Settling Defendant shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated
delay has been or will be caused by a force majeure event, that
the duration of the
circumstances, that
delay wap or
,-,ikJ ~ /; k
will be warranted under the
·ae&t efforts were exercised to avoid and
mitigate the effects of the delay, ·and that Settling DefenJant
complied with the requirements of Paragraphs 52 and 53, above.
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If Settling Defendant carries this burden, the.delay at issue
shall be deemed not be a violation be Settling Defendant of the
affected obligation of this Consent Decree identified to EPA and
the Court.
XX. DISPUTE RESOLUTION ,(/5
56. ~ Ufllece otben,zi se expressly pro1i.rieicd fG-1: ifl this Ce-nscrtt w,/,00 (
Decree, tb.g d.ispuee x;gsolution p:i::ocedu:z;es ot-th-is-Section--Sha.J.J,__
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57 '/ Any disputj! whtch arises unde.r ~":'.ij:.h respect to this /0 I
/ /,-,c/dcP"''J ,,rJ'j fu/,'e,,,-o,k a/'f?&FWC,d:'_5 &> Cr7!'=-''?l''r;(U)75 1~carf'8"C..-tec.l ,,, re;_
Consent DecreeJsall in the first ~nstanc~/be .tJ'l~sµbject of I £/J 4 ,;; ,, c/ -/I; e 5e (fr, '-£_ Ude rx:tci r1 r / ·
infernal negotiations between theJparties tthe eispu~e. The I
period for infernal negotiations shall not exceed 20 days from
to have arisen when one party notified the other parties in
writing that there is a dispute.
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-0[hnion -supporting that position and any documentation relied----
---upon-by-the_ -Settling De feridant.
--5-9--.-----Fma-l--<l-i-spute resB-±-Ut-ion-for---<li-spu-tes-pert-a--i-n-i-ng-to-
the selection or adequacy of-any response action and all -o er
disputes which are accorded review on the administra e record
under applicable principles of administrative 1 /shall be
conducted pursuant to the procedures set f h in tt:is
paragraph. For purposes of this Para aph, the adequacy of a;.y
response action includes: (1) adequacy or appropriateness of
plans, procedures to imp ent plans, or any other items
requiring approval EPA under this Consent Decree; and (2) the
adequacy of re onse actions performed pursuant to this Consent
Decree. N hing herein shall be construed to allow any dispute
• a, 'I'he admiflistrative rec:rd ~ dispute .aha:i--r'k
maintained by EPA and so sha~l=--_Htatements of position,
Settling Defendant's Statement of Position. ere appropriate,
EPA may allow submission of s pr mental statements of position
__ Q_truL_cli.s_p_11 t e
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\ c. The Director of the Waste Management Division, EPA
\ .
Reg ior\ IV,. shall issue a final administrative dee is ion resll v ing
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the disp!-Jte which shall be based en the Administrative ~cord.
This dee: ion shal~ be binding upon th.e Settling Defeiant
subject onl to the right to seek judicial review plrsuant to
paragraphs 59 d. and 59.e.
d. Ari administrative decision by EPA pursuant to
Paragraph 59.c. all be reviewable by this Cui~, provided that
a notice of judici 1 appeal is filed by the Settling Defendant
with the Court ands rved on all Parties ithin 10 days of
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receipt of EPA's decis on. The notice f judicial appeal shall I
include a description of the matter i dispute, the efforts made
by the Parties to resolve ·t, the r lief requested and the
schedule, if any, within whi ht
ensure orderly implementation
dispute mu~t be resolved to
this Consent Decree. The
United States may file a res ns to Settling Defendant's notice
of judicial appeal.
e. In proceedi gs on an:,· d~ pute pertaining to the
selection or adequacy f any response a tion or any other
dispute which is ace rded review on the a inistrative record
under applicable inciples of administrati
Defendant shall ave the burden of demonstrati
law, Settling
that the
decision oft e Waste Management Division Direct is arbitrary
and caprici us or otherwise not in accordance with aw.
Judicial eview of EPA's decision shall be on the adm"nistrative
record ·ompiled P.ursuant to Paragraphs 59.a. and 59.b. I
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6 0. _Formal dispute re sol u ti.on for disputes not pertaining J
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to the selection or adequacy of any response action or which a~e
/ not otherwise accord~d review on the administrative recor';,/under
I applicable principles of administrative law, shall beg erned
by this paragraph.
a. Following receipt of Settling Defenda t's statement
of position submitted pursuant to Paragraph 58, he Waste
Management Division Director shall issue a f" al decision
resolving ~he dispute. The Waste Manageme t Division Director's
decision shall be binding on the Settli Defendant unless,
within 10 days of receipt of the deci iori, the Settling
Defendant files with the Court and erves on all Parties a
notice of judicial appeal setti
the efforts.made by the Parti
f0rth the matter in dispute,
to resolve it, the relief
requested and the·· schedule, if any, within which the dispute
must be resolved to ensu orderiy implementation of the Consent
Decree.· A copy of the otice shail be served on the United
States prior to or c ntemporaneously with the filing of the
notice_ with 1the C rt. ~·he United States may file a response to
Settling Defend t's notice of judicial appeal.
b.
pertain to
dicial review of any dispute which does not
e selection or adequacy of any response action
shall be overned by applicable provisions of law. In any such
procee ng, the Settling Defendant shall bear the burden of
comi forward with evidence and the burden of persuasion on
fa tual· issues. /I
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61. . Notwithstanding the invocation Q.f----tnE; procedures stated I
in this Section, Settling Defe~l continue. to perform
its ~sent Decree, including those that I
or not substantially affected by the disputed
ssue.
XXI. STIPULATED PENALTIES (;VS)
62. Settling Defendant shall -be liable for stipulated
penalties in the amc~nts set forth in Paragraph 63 to the United cJR.. .
States aRd the State for failure to comply with the requir~ments . of this Consent Decree specified below, unless excused under
Section XIX (Force Majeure). "Compliance• by Settling Defendant
shall inr.lude completion of the activities under this Consent
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Decree or any work plan or ;{,I a plaWpprovesf undJr tl)}s :/«/ )I
/" C,:, 4.-CC:4[) ~ ,>?4 n~ (Jv 4''1,/' (,//' ,L. '< 1"5< Sr , I
Co!},;e97 Dec:i;e~ i.;:ieiltjfieei~elew' ~0;i;daR1:0 11.i.t:h all
,sd,odv /1!{ U74 ,l/4.-fu' 6 y a,, d ~ ~ u,"(7"1, ..---I
applic?iJle requirements of law, this Consent Decree, the SOIi,
•aRei aRy plans or other documents approoed bj EPA pursuant Lo
'1!his Consent Decree and within the specified Lbne schedules
estabJisheei and appro~ed ttneier this Censent Oeeree.
63. The following stipulated penalties shall be
oil,.
violation per day to the United States and the 3tate
payable 1;>er /4. /.;,e,
for any
Penalty Per Violation
Per Da
Period of Noncompliance
$15,000 2,~
25, (l0(l 5, c,OO.
36, eee /t;, t)b C>
1st thru
lSth·thru
14th
~th
day
day
!1st day & beyond ·
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Th~ following stipulated penalties shall be payable per
violation per day to the United States and the State for failure
to submit timely or adequate reports:
Penalty Per Violation
Per Da
$1,001:J 2 ,so
2,eee 9!)~
3,000 / ~,!)c)
64; In the---;evcnt that CPA a
or all the Work pursuant to Para
\Covenant
Period of Noncompliance
1st thru 14th day
15th
~~t
thru ~th day
day & beyond
of Section XXII
65. All penalties shall begin to accrue on the day
6'7) 4.)/Jic.,/2 Ml·
.. ~ complete performance is due or~the day a"violation occurs,
and shall continue to accrue ~'t~(~h the fiRal day-<7f the
t. f tl, l" . /=, W r~ f r · · co~rcc 1en ene noncomp iance or comp etion o tne activity.
Nothi~g herein shall prevent the simultaneous accrual of
separate penalties for separate violations of this Consent
Decree.
66. Following EPA's determination that Settling Defendant
has failed to comply with a requirement of this Consent Decree,
EPA shall g_i;):'e ~ettling Defendant written. notification of the
5fCk, -t : c,:, llj . . .
same an<li,describe the noncompliance. This notice shall also
indicate the amount of penalties due and whether the. penalties
are continuing to accrue. .liowever, penalties sha.l-1 accrue as
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-P.r:ov..ided-icn-the-pFeced.i.-ng--f)aragr-aph --regard 1 es s--o f---whet-her--EPA-
-ha s -not-i-f-ied-the--Settling--Defendant of a violation.
67. All penalties owed to the United States under this
Section _shall be due and payable witlp_·.n O days of_1the Set,tlip.g · . ~ r ,,-, ~ rq'a " '<-ll-', I ', f-111"5 ,a Defendant's receipt from EPA of aAnotification o
unless Settling Defendant invokes the Dispute Resolution
procedures under Section XX (Dispute Resolution). All payments
under this Section shall be paid by certified check made payable
to "EPA Hazardous Substances Superfund," shall be mailed to EPA
Region IV, Attn: Superfund Accounting, P.O. Box 100142, Atlanta,
Georgia 30384, Attn: Collection Officer for Superfund, and
shallreference CERCLA Number TGB04DPL7 and DOJ Case
Number ______ . Copies of check(s) paid pursuant to this
Section, and any accompanying transmittal letter(s), shall be
sent to the United States as provided in Section XXVII (Notices·
and Submissions).
68. Neither the invocation of dispute resolution procedures
under Section XX (Dispute Resolution) nor the payment of
penalties shall alter in any way Settling Defendant's obligation
to complete the performance of the Work required under this
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Consent Decree. hj . I
69. Penalties shall/t cantirnie ta accrue as prov~~n-/k t;_,,.,/i,
Paragr~VP 65 d~igg ~ny dispu~e resolution period❖but need~-/) A Se,H, "'{ 7.>zfr,,{h ')/° ,ft-& . ~ ~ I? c,.¢-t"J. -/4 I -r-( , / ') I/) J O /<-1 ":5 f' ' ~ paid JJotil the fol-±9w-i-og• 0
ea: I f~~=di.s.pu.t..e.....i.s . ...i:.e.s.o.l.YecL.by-agre-ement or By· I
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---Gect~~un-o~r of EPA which is not appealed to this Court,
accr~ed penalties shall be paid to EPA within 15 days of the
agreement or the receipt of EPA's decision or order;
b. If the dispute is appealed to this,Court and the
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United States prevails in whole or in part//Settling Defendant
shall pay all accrued penalties tha//court determines are
owed to EPA within 15 days of rec&ipt of the Court's decision or
order, except as provided il'l,/~aragraph C below;
c. If the Dist/4t Court's decision is appealed by any
party, Settling D/Lt shall pay all accrued penalties into
an interest-bearing escrow account within 15 days of receipt of
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the Court;,s·/decision or order. Penal ties shall be paid intothis
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acco/t/as they continue to accrue, at least every 60 days.
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.. Within 15 days of receipt of the appellate couxtdecision, the / .
Settling Defendant
~ balance of
to the extent -that
the account to EPA or to
70. If Settling Defendant fails to pay stipulated penalties
when due, the United States may institute proceedings to collect
the pena_l ties, as well as late charges and interest. Settling
Defendant shall pay interest on the unpa,i.d balance, whic~1,shall/
. /4//-"'<,/, --::1 ,u:L-,;,, 1-~ o1 ,.,_ nc,, /) 0 ·, "' rt 1 :
begin to accrue at the end of the thirty-day period)at the rate 1/1 °,!,""Et
est,9bl~hjHi.;bY. t;,he Depqr.;t'.~nt of T,reasu:r;y, under 31 u.s.c. ~ 3713 ~ fi.c 5d/v5 /.,JW/Jlf,'7i /4:1.:s /~e ..µe_ of.,IJ7/:., 1"11l0/Jt;IS--. j)~~ ySacf.lr\--ga .Si~ -fe_
and 40 C.F.R. 102.13.~ Settling Defendant shall further pay a
~arge of 1--p-Orcent ( 1'4-, to be as-ses-se€l-a-t-4che-Bne-of-
-oacl:i io day lato poriod, and a 6 percent (6%) per annum penalty
be construed as prohibiting, altering, or in any way limiting
the ability of Plaintiffs to seek any other remedies or
sanctions available by virtue of Settling Defendant's violation
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of this Decree oi: Pt the sta4ut~s and r§~lations upon which it / I
/ r1n1, ,,t.,,,, ~-.1 ~~i , .., g,,r,,, ;:;,-7'b .s,,.•l<-4 "7 a r "' .--,,,_i,,, <'.-7"-:::'.li
)e~~; s:~5;1-11i:01%i~~ ~),.q~~~/2;o~a3!ij;j"~r,.~~ax ~1''7!
Sec~, 122 ( 1) of 7,~· 1,-1~ .5-h,11J£-£l._ A_,,,,)~.;s r4, .,J. v /:/4
.-6,..7 .s ~~ D,,,re,,~,, / vv.:JJ -/4 -/✓"---&>ti/;) De~,.,,ck/" .+ /..J,. tfe rJ /J~Kex r •
/71. No payments made under this Section shall be tax 1 deductible for Federal tax purposes.
XXII. COVENANTS NOT TO SUE BY PLAINTIFFS (,<15)
72. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendant
under the terms of the Consent Decree, and except as
specifically provided in Paragraphs 73, 74, and 76 of this
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Section, the United States covenants not to sue or tg II/
81 1 '·f_j ::,d,-<,~ J/,5 Q $.S '1/0/
tak~administrative action against Settling Defen an pu uant t ;,if ur-i
· ""',/ i2e,/ZIJJ JtJtJ>,4'1-USG.J6773
'Sections 106 and 107(a) of CERCLAAfor performance o~ the Work
and for Recovery of Past Response Costs and Future Response
Costs. Except with respect to future liability these covenants
not to sue shall take effect upon the receipt by EPA of the
payments required by Paragraph 45 of Section XVII (Reimbursement
of Response Costs). With respect to Future Liability, these
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of · Section XV. (Certification_ of Completion) These covenants
not to sue are conditioned upon the complete and satisfactory
performance by Settling Defendant of its obligations under this
Consent Decree. These
Settling Defendant and
Future Liability shall mean any response actions which are
beyond those that were selected by the ROD f0r Operable Unit 2
or are set forth in the SOW.
73. United States' Pre-certification reservations.
Notwithstanding any other provision of this Consent
Decree, the United States reserves the right to ·institute
proceedings in this action or•in a new action, or to issue an
administrative order seeking to compel Settling Defendant (1) to
perform additional response actions relating to th·e Site or ( 2)
to reimburse the United States for additional costs _oj response /1 / .
t;,.;r.c,.,,-1 "::]-0 ~ 7> :r---if, prior to certification of completion of the Response
~ -½e.. w J-,,•/{_ t1.ens:
(i) conditions at the Site, previously unknown to
the United States, are discovered after the entry
of this Consent Decree, or . /J t8'.) i IJUS. l-j /4 o C ~ rJ .
( ii )/J information is received, in whole oi: pai: t,
after the entry of this Con5ent Decree,
and these previously unknown conditions or this information
together with any other relevant information indicates that the
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Response Actions are not protective of human health and the
environment.
74. United States' Post certification Reservations.
Nothwithstanding any other provision of this Consent Decree,
the United States res·erves the right to institute proceedings in
this action, or to issue an administrati,ve offer seeking to
compel Settling Defendant (1) to perform additional response
actions relating to the Site or (2) Lo ~ewburse the United
States for additional costs of response if; :bsequent. to
certi!fication of completion of the Response .. ::ions:
( i)
the
conditions at the Site, p=eviously unknown to
~ /1:fr~(.,
United States,,, are discovered after the
certification of completion, or , ,4'I"'"" I;; k /1 • ,I.) '1
( ii)" inf0rmation is rer:eived, in whole or in part,
after the certification of completion,
and these previously unknown conditions or this information
together with other relevant information indicate that the
Response Actions are not protective of human health and the
environment. The above-mentiuned reservations of righ:ts in this
Paragraph and Paragraph 73 include the right to institute
c. liability for damages for injury to, destruction of, or
loss of natural resources;
d. liability for Response Costs that have been or may
be incurred by the U.S. Department of the Interior;
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e. criminal liability;
f. liability for violations of federal or state law
which occur during or after implementation of the Response
Actions;
g. Previously incurred costs of response above the
amounts r8imbursed pursuant to Paragraph 45; and
h. liability for additional operable units at the
Site.
7 7 • In the event EPA determines that Settling Defendant has
failed to implement any provisions of the Work in an adequate or
timely manner, EPA may perform any and all portions of the Work
as EPA determines necessary. ·settling Defendant may invoke the
procedures set forth in section XX (Dispute Resolution) to
dispute EPA's determination that the Settling Defendant failed
to implement a provision of the Work in an adequate or timely
manner.as arbitrary and eaprieieus er otherwise net in
accordance with law. Such dispute shall he resolved on the
administra~ive reeerd. Costs i·ncurred by the United States in
performing the Work pursuant to this Paragraph shall be
considered Future Response Costs for the purposes of Section
XVII (Reimbursement of Response Costs).
78. Nothwithstanding any other provision of this Consent
Decree, the United States and the State retain all authority
andreserve all rights to take any and all response action
authorized by ·1aw.
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XXIII. COVENANTS BY SETTLING DEFENDANT (,vs)
79. . ,L',, ti~ Settling Defendant hereby covenants not to sue-and
--agreas-not.-to--a s se1c-to--any-c-la-ims -or-caUcses--o f-act--ion -aga±n~ the
United StatQs; 0:i;: t.he State related to or arisiRg frem any
.i;Qs;ponse action talcen with respeet te the Site or this Consent
Decree, iReludiRg, but net limited to, any direct or indirect
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cla_im for 1reµnbursement from the Hazardous Substance Superfu[ld C J 161 , es.:../,,i/t~ne-a' ,!)a,,ut.Ja-~f ft, 5~--?-Z-1 a CB/2,c-{__.,1 9z. .s. -( established -pursuant-t--e--t-he-Internal R_evenue Cede, 2 6J U.S. C. S
9507) through CERCLA Sections 106(b.) (2), 111 or 112 or any other
'pro·,•ision of law, er to seek any-e-t-her costs, dan:,ageis or
attorneys fee-~~s or the State arising out
of re!Jf)On&e----ae-t-i-v±Hes at the Site. 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. S 9611,
or 40 c.~.R. § 300.25(d).
XXIV. EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION
80. Nothing in this Consent Decree shall be construed to
create any rights in, or grant any cause of action to, any
person not a party to this Consent Decree. The preceding
sentence shall not be construed to waive or nullify any rights
that any person not a signatory to this decree may have under
applicable law. Each of the Parties expressly reserves any and
all rights (including, but not limited to, any right to
contribution), defenses, claims, demands, and causes of action
which each party may have with respect to any matter,
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transaction, or occurrence relating in any way to the Site
against any person not a party hereto.
81. With regard to claims for contribution against Settling
Defendant for matters addressed in this Consent Decree, the
parties hereto agree that the Settling Defendant is entitled,. as
of the effective date of this Consent Decree, to such protection
from contribution actions or claims as is provided by CERCLA
Section (f)(2), 42 U.S.C. S 961J(f)(2), and CERCLA Section
122(g) I 42 u.s.c. § 9622(g) o
82. The Settling Defendant agrees that with respect to any
suit or claim for contribution brought by it for matters related
to this Consent Decree it will notify the United States ana the
State in writing no later than 60 days prior to the initiation
of such suit or claim. The Settling Defendant also agrees that
with respect to any suit or claim for contribution brought
against it for matters related to this Consent Decree it will
notify in writing the United States and the State within 10 days
of service of the complaint on them.
83. In any subsequent administrative or judicial proceeding
initiated by t_he United States or the State for injunctive
relief, recovery of response costs, or other appropriate relief
-relating to the_ Site, Settling Defendant shall not assert, and
may not maintain, any defense or claim based upon the principles
of waiver, res judicata, collateral estoppel, issue preclusion,
claim-splitting, or other defenses based upon any contention
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that the claims raised by the United States or the State in the ·•
subsequent proceeding were or should have been brought in
theinstant case; provided, however, that nothing in this
Paragraph affects the enforceability of the covenants not to sue
set forth in Section XXII (Covenants Not to Sue by Plaintiffs).
XXV. ACCESS TO INFORMATION
84. Settling Defendant shall _groy}de to EPA and the State, /)W.-fr1 v1/~(0'
upon request, copies of all~documents and information within its
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possession or control or that of its c~ntractors or agent x · -rz,,o 1 ~ lfu_ ~ VJ ~ ccn.,~ vecre ".. I relating to activities at the Site~or to tht 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
Defendant s~l~o ~i,l;~~ab~o ~ a~s~:;~or
purposes of(li om;ist4aeion, i11fcZ1Bat ion gatberioq m; testiln"R2',
i~s employees, agents, or representatives with knowledge of
relevant· facts concerning the performance of the Work.
85. Set:;tling 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,
2 u. S . C. S 9 6 O 4 ( e) ( 7 ) , and 4 0 C . F . R. S 2 . 2 0 3 ( 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.
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If no claim of confidentiality accompanies documents or
information when they are
EPA has notified Settting
submitted to EPA and the .State, or if
/o wr,-f,""1
Defendant~that lhe documents or
information are not confidential under the standards of
Section104 ( e) ( 7) of CERCLA,. the public may be given access to
such documents or information without further notice to Settling
Defendant.
86. No claim of confidentiality shall be made with respect
to any data, incJ.uding, but not limited to, all sampling,
analytical, monitoring, hydrogeologic, scientific, chemicai, or
engineering data and materials or information submitted pursuant
to this Consent Decree, or any other. documen~s.or information
~t Cvt-< -It<-<. ,4,.,,-v,r:-c_f ·1 rk-= ~~7 {) ~V€--J;?__
evidencing conditions~at or arouna the Site. . .
XXVI. RETENTION OF RECORDS
87. Until 10 years after the Settling Defendant's receipt
of EPA's notification pursuant to Paragraph 42 of Section xv.
(Certification of Completion), Settling Defendant shall preserve
and retain all records and documents now in its possessior or
control or which come into its possession or. control that relar.e
in any manner to the performance of the Work or liability of the
Settling Defendant for response action_s conducted and to be
conducted at the Site, regardless of any corporate retention
policy to the contrary. Until 10 years after the Settling
Defendant's receipt of EPA's notification pursuant to Paragraph
42 of Section XV. (Certification of Completion), Settling
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Defendant shall also instruct its contractors and agents to
preserve all documents, records, and information of whatever
kind; nature or description relating to the performance of the
Work. At the conclusion of this document retention period,
Settling Defendant shall notify the United States and the State
at least 90 days prior to the destruction of any such record
ordocuments, and, upon request by the United States or the/ · 11M-p1iv7lr!jt State, Settling Defendant shall deliver any such/record~ rr
documents to EPA or the State. The Settling Defendant may
assert that certain documents, records and other information are
privileged under the attorney-client privilege or any other
privilege recognized by federal law. However, all documents,
reeords er information erea-tod, generated or collected pkrsuant
-to the terms of the Consent Decree shall aet ee withheld en the
grounds that they are priuileged
88. Settling Defendant hereby certifies, individually, that
it has not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, documents or other information relating
to •.its potential liability with regard to the Si~e since
notification of potential liability by the United States or the
State or the filing of suit against it regarding the Site and
that it has fully complied with any and all EPA requests for
information pursuant to Section 104(e) and 122(e) of CERCLA and
section 3007 of RCRA.
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' XXVII. NOTICES AND SUB~ISSIONS fe)
89. Whenever, under the terms of this Consent Decree,
written notice is required to be given or a report or other
document is required to be sent by one party to another, it
shall be directed to the individuals at the addresses specified
below, unless those individuals or their successors give notice
of a change to the other parties in writing. Written notice as
specified herein shall constitute complete satisfaction of any
written notice requirement of the Consent Decree with respect
tothe United States, EPA, the State and the Settling Defendant
respectively.
As to the United States:
David Buente
Chief, Environmental Enforcement Section Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044 Re: DOJ # _______ _
and
Donald J .. Guinyard
Director, Waste Management Division
United States Environmental Proteccion Agency Region IV
345 Courtland Street, N.E.
Atlanta; Georgia· 30365
As to EPA:
Barbara Benoy
EPA Project Coordinator·
United States Environmental Protection Agency Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
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As to the State:
William Myer, Director
Solid Was~e Management Section
Dept. of Environmental Health &
Natural Resources
P.O. Box 2091
Raleigh, North Carolina 27603
State Project Coordinator
[Address]
As to the Settling Defendant:
Alexander M. Samson, Jr.
Counsel, Regulatory Affairs
National Starch and Chemicai Company 10 Finderne Avenue
P.O. Box 6500
Bridgewater, New Jersey 08807
XVIII. EFFECTIVE DATE {6)
90. The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court
except as otherwise provided herein.
XIX. RETENTION OF JURISDICTION (8)
91. This Court retains jurisdiction over both the subject
matter of this Consent Decree and the Settling Defendant for the
duration of the performanc·e of the terms and provisions of this
Consent Decree for the purpose of enabling any of the Parties to
apply to the Court at any time for such further order,
direction, and relief as may be necessary or appropriate for the
construction or to enforce compliance with its terms, or to
resolve disputes in accordance with Section XX (Dispute
Resolution) hereof.
Cf/./ ?--:::7 XXX. APPENDICES <il z)
92. The following appendices are attached to and
incorporated into this Consent Decree:
"Appendix A" is the ROD.
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Paragraph XXIX.
Retention of Jurisdiction
91. 1
EPA and the State and settling defendant_$' each retain their ' -=
owr, right to enforce the ·terms of this decree and take any action
authorized by federal or state law not inconsistent with the terms
of this decree to achieve or maintain compliance wit;:h the terms
and conditions of this decree.
91.2
Subject to Section XVI (Emergency Response), EPA and the
State reserve all claims, demands and causes of action, past or
future, judicial or administrative, in law or equity, including
b•1t not limited to response action under CERCLA, cost recovery and
injunccive relief and natural resources damages, against any
person or entity, including settling defendant, for any matters
not covered under this decree. EPA and the State and ~ettling
defendant each hereby expressly reserve any claims or defenses
which ~hey may have against any other person or entity not a party
to this decree, including but not limited to, claims for indemnity
or contribution.
· 1" j f U3900•i i 44001 / inserts /para. xx; x
"on.Apr 11 15:51:31 1991
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"Appendix B" is the SOW.
"Appendix ·c· is the model notice letter as specified
in Paragraph 9.b.
XXI. COMMUNITY RELATIONS (15)
,:,u /,.;/ Cet:rfJeA--,-/4 ,<,,./, r /) 93. Settling.Defendant &hall~re and suamit to EPA and "ft> ;,r&v;/4
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th.r-Settling Defendant will nndertake to disseminate .nil>-?;',.,"'' ~ec/1
information regarding the Work to the public. Upon its-
~~~lo/~~~ ::ta£ a £aasonablo oppo£tunity for review and r'}f~="7tf:Si , Settling.Defendant shall participate in
the preparation of such information for dissemination to the
public and in public meetings which may be held or sponsored by
EPA or the State to explain activities at or relating to the
Site.
XXXII. MODIFICATION /::5)
94. No modification shall be made to this Consent Decree
without written notification to and written approval of the
United States, Settling Defendant, and the Court. Prior to
providing its approval to any modification, the United States
shall provide the State with a reasonable opportunity to review
and comment on the proposed modification.
95. No material modifications shall be made to the SOW,
without written notification to and written approval of the
United States, Settling Defendant, and the Court. Prior to
providing its approval to any modification, the United States.
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sh~ll provide the State with a -reasonable opportunity to review
and comment on the proposed modification. Modifications to the
SOW, that do not materially alter those documents may be made
by written agreement between EPA; after the State is provided
with a reasonable opportunity to review and comment on the
proposed modification, and the Settling Defendant. No oral
modification of this Consent Decree shall be effective.
96. Nothing in this paragraph shall be deemed to alter the
Court's power to supervise or modify this Consent Decree.
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XXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT (8)
97-. This Consent Decree shall be lodged with the Court for
a period of not less than thirty (30) days for public notice
andcomme.nt in accordance with Section 122(d) (2) of CERCLA, 42
U.S.C. S 9622(d)(2), and 28 C.F.R. S 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
not{ce.
XXXIV. SIGNATORIES (13)
98. Each undersigned representative of the Settling
Defendant to this Consent Decree and the Assistant Attorney
General for Environment and Natural Resources o_f the Department
of Justice certifies that he or she is fully authorized to
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enter into the terms and conditions of this Consent Decree and , I
to execute and legally bind such party to this document.
9 9-. ~The-Set t·b.ng-Defendan t--he re by-agrees--not·:J:o.~eppose --------entry of this Consent Decree by__thi-s-Court or challenge any
provision of this~e~ee unless the Uniteq States has
notified ~ling Defendant in writing that it no longer
s't!Pt=-=t1:~m1t:-ry--of-tche-€c~ Deeree.
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100. The Settling pefendant shall identify, on the attached I
signature page, the name and address of any agent who is
auth~rized to accept service of provess by mail on behalf of
that party with respect to all matters arising under or
relatingto this Consent Decree. Settling Defendant hereby
agrees to accept serv.ice in. that manner and to waive the fo=al
service requirements set forth in Rule 4 of the Federal Rules
of Civil Procedure, including, but pot limited to, service of a
summons, and any applicable local rule of this Court.
SO ORDERED THIS DAY OF _________ , 1991.
· . United States ~~rict Judge
THE UNDERSIGNED PARTIES enter into this Con/4 Decree in the matter of United States v. National Starch~~Chemical , relating to the National Starch Superfund ite. CC/1,t.'/a"')
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-62-
FOR THE UNITED STATES OF A.MERICA
Richard B. StE~art
Assistant Attorney General
Environment and Natural
Resources Division
U.S. Department of Justice
Washington, D.C. 20530
David Buente
Environmental E~forcement Section
Environment and Natural Resoucces
Division
U.S. Department of Justice
Washington D.C. 20530
Assistant United States Attorney
Western District of North Carolina
U.S. Department of Justice
[Address]
Ray Ludwiszewski
Assistant Administrator for
Enforcement
U.S. Environmental Protection
Agency
401 M Street, s.w.
Washington, D.C. 20460
Greer Tidwell
Regional Administrator, Region IV
U.S. Environmental Protection
Agency
345 Courtland Street, N.E.
Atlanta, GA 303€5
Reuben T. Bussey, Jr.
Assistant Regional Counsel U.S.
Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
-63-.
United States v. National Starch & Chemical Corporation
Consent Decree Signature Page
Date: _____________ _
F·oR THE STATE OF NORTH CAROLINA .
William Myer, Director
Solid Waste Management
Section
Dept. of Environmental Health
& Natural Resources
P.O. Box 2091
Raleigh, North Carolina 27603
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-64-
THE UNDERSIGNED PARTY enters into this Consent Decree in the
matter of United States v. National Starch Chemical Corporation,
relating to the Nacional Starch & Chemical Corporation Superfund
Site.
FOR NATIONAL STARCH & CHEMICAL CORPORATION
Date: __________ _
Alex Samson
Counsel, Regulatory Affairs
National Starch & Chemical
Corporation
P.O. Box 6500
Bridgewater, NJ 08807-3300
Agent Authorized to Accept Service on Behalf of
Above-signed Party:
Name:
Title:
Address:
Alex Samson
Counsel, Regulatory Affairs
National Starch & Chemical
Company
P.O. Box 6500
Bridgewater, NJ 08807-3300
*/ A separate signature page must be signed by each
corporation, indiv.i..dual or other legal entity that is settling
with the United States.
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SCOPE OF WORK FOR THE ~P,f7'V'/
REMEDIAL DESIGN AND REMEDIAL ACTION )
AT THE NATIONAL STARCH & CHEMICAL 4;:0R.P-0Rc.",'l'ION' SITE
OPERABLE UNIT 2
INTRODUCTION
The purpose of this Remedial Design/Remedial Action (RD/RA) is
to cond~ct all necessary response actions to complete the
selected remedy to ensure protection of human health and the
environment. Remedial Design (RD) is generally defined as those
activities to be undertaken by the Settling Defendant to develop
the final plans and specifications, general provisions and
special requirements necessary to translate the Record of
Decision (ROD) into the remedy to be constructed under the
Remedial Action (RA) phase. RA is generally the implementation
phase of site remediation to include performance monitoring.
The RA is based on the RD to achieve the remediation goals
specified in the ROD. This Scope of Work (SOW) is designed to
provide a framework for conducting the RD/RA activities at this
Site and is the "technical" portion.of this Consent Decree.
The Settling Defendant shall conduct all response actions as
identified in the Record of Decision (ROD) issued on September
28, 1991. All work to be performed shall be in accordance with
and consistent with the Superfund. Remedial Design and Remedial
Action Guidance (U.S. EPA Office of Solid Waste and Emergency
Reeponse Direct,i.ve 9 355. 0-4A, June 19 86) ( the "RD/RA Guidance") ,
and other guidances used by EPA in conducting an RD/RA (a list
of th<e primary guidances is attached), as well as any additional
requirements in this Consent Decree. The Settling Defendant
shall furnish all necessary personnel, materials, and services
needed, or incidental to, performing and completing the RD/RA,
including necessary operation and maintenance, and performance
monitoring.
EPA shall provide oversight of the Settling Defendant's
activities throughout the response actions. The Settling
Defendant shall.support EPA's initiation and conduct of
activities related to the implementation of ·oversight
ac.tivities. However, the responsibility for satisfactorily
implementing the selected remedy shall lie with the Settling
Defendant. EPA review and approval of deliverables is a tool. to
_assist this process and to satisfy, in part, EPA's
respon~ibility to provide effective protection of public health,
welfare, and the environment. EPA approval of a task or
deliverable shall not be construed as a guarantee as to the
ult_imate adequacy of such task or deliverable. A summary of the
major deliverables that Settling Defendant shall submit for the
response actions is attached.
TASK I -SCOPING
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Scoping is the initial planning process of the response actions and has been initiated by EPA through this document to determine how the site-specific remediation goals as specified in.the ROD will be met. The specific project scope shall be planned by the Settling Defendant and EPA. The Settling Defendant shall document the specific project scope in a Work Plan. Additional data requirements may be identified during this process. The Settling Defendant shall submit a technical memorandum documenting any need for additional data along with the proposed DQOs whenever such requirements. are identified. In any event, the Settling Defendant are responsible for fulfilling additional data and analysis needs identified by EPA consistent with the general scope and objectives of the Consent Decree, including this SOW. 1
The Site Objectives for the National Starch & Chemical Corporation (NSCC) Site, Operable Unit 2, have been determined preliminarily, based on available information, to·be the following:
1. Review of existing information pertaining to the Site. This includes the ROD, the Remedial Investigation/Feasibility Study (RI/FS), and other reports or related information.
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I 2. Review of relevant guidance ( see attached reference_s) to understand the RD/RA process. This information shall be used in B performing the RD/RA and preparing all deliverables under this sow.
3. Collection of additional data, as required. This includes I additional sampling, geotechnical investigations, surveys, modeling, etc. An initial surface soil sampling of the trench area will be conducted as well as periodic monitoring of I subsurface soils. ·
· 4. Preparation of a detailed sampling plan necessary to conduct the response actions. I
S. Actual implementation of the selected remedy, i.e. deed and/or access restrictions, etc., necessary to implement the 1· selected remedy.
6. Maintenance of the facilities necessary to implement the 1 selected remedy, as required,
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7. Perfo=ance monitoring of the selected remedy to ensure all
remediation goals are met.
8. Ensuring that all Federal and State applicable or relevant
and appropriate requirements (ARARs) are met. These ARARs are
as follows:
Clean Water Act/Safe Drinking Water Act
Toxic Substances Control Act
Federal Occupational Safety and Health Administration Act
Resource Conservation and Recovery Act
Effluent Guidelines and Standards, 40 CFR 400 Subchapter N
National Pollution Discharge Elimination System
North Carolina Superfund Act
North Carolina Groundwater Regulations/North Carolina
Water Quality Standard
9. Completion of the selected remedy to ensure protection of
human health and the environment.
During and upon development of the Work Plan, further r.eview of
any ARARs applicable in the management of residual wastes will
be identified and complied with.
The Settling Defendant must meet with EPA to discuss all project
planning decisions and special concerns associated with the
Site; The following activities shall be perfo=ed by the
Settling Defendant as a function of the project scoping process.
A. Site Background
The Settling Defendant shall gather and analyze the existing
info=ation regarding the Site and shall conduct a visit to the.
Site to assist in planning the scope of ther. RD/RA as follows:
l. Collect and Analyze Existing Data and Document the Need
for Any Additional Data
Before planning response actions, all existing Site data
shall.be thoroughly compiled and reviewed by the Settling
Defendant. Specifically, this shall include the ROD, RI/FS,
and other available data related to the Site. This
info=ation shaii be utilized in dete=ining if any
additional data is needed for the implementation of response
actions. _Decisions on the necessary data and Data Quality
Objectives (DQOs) shall be made by EPA.
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2. Conduct Site Visit (.,.~C((.,-1.,:JF-,/l,f /,YIA.,;C< a/4/ ,.,; -•
f ct/frc:.,j,c..-•,,_;r; ,,__~ <!~ ~ c..>/' , .. p-.. ,.,1 I
The Settling Defendant shall conduct a visit to the Site I
with the EPA Remedial Project Manager (RPM) during the
project scoping phase to assist in developing a conceptual
understanding of the response actions requirements for the 1 Site. Information gathered during this visit shall be
utilized to better scope the project and to determine the
extent of additional data necessary to implement the
response actions. I
B. Project Planning
The Settling Defendant shall meet with EPA regarding the
following activities and before proceeding with Task II.
1. Refine the Site Objectives
Whenever necessary, the Settling Defendant shall refine
Site Objectives. Any revised Site Objectives shall be
documented in a technical memorandum to be prepared by
Settling Defendant and are subject to EPA approval prior
proceeding with Task II.
the
TASK II -REMEDIAL DESIGN/WORK PLAN
Remedial Design shall be performed to support the response
actions selected in the ROD and shall be embodied into a Work
Plan. The Work Plan shall provide the technical details for
implementation of the response actions in accordance with
standard professional engineering and construction practices.
A. Remedial Design Planning
At the conclusion of the project planning phase, the Settling
Defendant shall submit the following:
Work Plan,
Sampling and Analysis Plan, and
Health and Safety Plan,
,
to
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The Wo;k Plan and Sampling and Analysis Plan must be reviewed I
and approved and the Health and Safety Plan reviewed by EPA
prior to the initiation of field activities.
Upon approval of the Work Plan, the Settling Defendant shall
implement the Work Plan _in accordance with the EPA-appr~ved
design management schedule contained therein. Such
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implementation shall include EPA review and/or approval of
plans, submittals, and other deliverables. The purpose of these
reviews is for EPA to assess the feasibility of the dejign to
achieve the Site Objectives in accordance with the ROD and
Consent Decree, including this SOW. Review and/or approval of
design submittals only allows the Settling Defendant to proceed
to the next step of the design process. It does not imply
acceptance of later submittals that have not been reviewed, nor
that the remedy, when constructed, will meet performance
standards and be accepted.
1. Work Plan
A Work Plan documenting the decisions and evaluations
completed during the scoping process shall be'submitted to
EPA for review and approval. The Work Plan shall include a
comprehensive description of the additional data collection
and evaluation activities to be performed, if any, and the
plans and specifications to be prepared. A comprehensive
design management schedule for completion of each major
activity and s_ubmission of each deliverable shall also be.
·included. The Work Plan shall be developed in conjunction
-with the Health and Safety Plan_ and the Sampling and
Analysis Plan although each plan may be delivered under
separate cover.
Specifically, the Work Plan .shall present the following:
a·. A. statement of the problem( s) and potential
problem(s) posed by the Site and how the
objectives of the response actions will address
the problem(s) .·
b. A background summary setting forth the following:
1) A brief description of the· Site including the
geographic location, and a description of the
physiographic, hydrologic, geologic, demographic,
ecological, cultural and natural resource features
of the Site;
2) A brief synopsis of the history of the Site
including a summary of past disposal practices and
a description of previous responses that have been
conducted by local, State, Federal, or private
parties at the Site;
3) A summary of the existing data in terms of
physical and chemical characteristics of the
contaminants identified and their distribution
among the environmen½al media at the Site.
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c.
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f.
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A brief list and detailed description of the tasks
to be performed, information needed for each task,
information to be produced during and at the
conclusion of each task, and a de~cription of the
work products that shall be submitted to EPA.
This includes the deliverables set forth in the
remainder of Task II and Task III A.
A schedule with specific dates for completion of
each required activity and submission of each
deliveraole required by this Consent Decree,
including those in th~s SOW. This schedule shall
also include information regarding timing,
initiation and completion of all critical path
•milestones for each activity and/or deliverable .
A project management plan, including a data
management plan, monthly reports to EPA, and
meetings and presentations to EPA at the
conclusion of each major phase of the RD/RA. The
data management plan shall address the
requirements for project management systems,
including tracking, storing, and retrieving the
data aL:mg with identi.fyirig software to be used,
. minimum data requirements, data format and backup
data management. The plan shall address both data
management and document control for all activities
conducted during the RD/RA.
A description of the cc:nmunity relations support
activities to be conducted during the RD. At
EPA's request, it is expected that the Settling
Defendant will assist EPA.in preparing and
disseminating ~nformation to the public regarding
the RD work to be performed. ·
Health and Safety Plan
A Health and Safety Plan shall be prepared in conformance
with the Settling Defendant's health and safety program, and
in compliance with OSHA regulations and protocols. The
Hea_lth and Safety Plan shall include a health and safety
risk analysis, a description of monitoring and personal
protective equipment, medical monitoring, and site control.
Note that EPA does not "approve" the Settling Defendant's
Health and Safety Plan, but rather EPA reviews it to ensure
that all necessary elements are included, and that ~hP. plan
provides for the protection of human health and the
enviro!'lDlent.
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Sampling and Analysis Plan
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The Settling Defendant shall prepare a Sampling and Analysis
Plan (SAP) to ensure that sample collection and analytical
activities are conducted in.accordance with technically
acceptable protocols and that the data generated will meet
the DQOs established. The SAP shall consist of a Field
Sampling and Analysis Plan (FSAP) and a Quality Assurance
Project Plan ·(QAPP).
The FSAP shall define in detail the sampling and
data-gathering methods that shall be used on the project.
It shall include sa...pling objectives, sample location
(horizontal and vertical) and frequency, sampling equipment
and procedures, and sample handling and analysis. The Field
Sampling and Analysis Plan shall be written so that a field
sampling team unfamiliar with the site would be able to 1
gather the samples and field information required. The QAPP
shall describe the project objectives and organization,
functional activities, and quality assurance and quality
control (QA/QC) protocols that shall be used to achieve the
desired DQOs. The DQOs shall, at a minimum, reflect use of
analytical methods for identifying contamination and
addressing contamination consistent with the levels for
remedial action cbjectives identified in the National
Contingency Plan. 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 Engineering Support Branch
Sta'ndard Operating Procedures and Quality Assurance Manual.
The Sqttling Defendant shall demonstrate, in advance and to
EPA's satisfaction, that each laboratory it may use is
qualified co.conduct the proposed work. This includes use
of methods and analytical protocols for the.chemicals of
concern in the media of interest within detection and
quantification limits consistent with both QA/QC procedures
and DQOs approved by EPA in the QAPP for the Site. .The
laboratory must have and follow an approved QA program. The
Settling Defendant shall provide assurances that EPA has
access to laboratory personnel, equipment and records for
sample collection, transportation,. and analys·is.
The Settling Defendant shall submit detailed information to
demonstrate that the laboratory is qualified to conduct the.
work, including information on personnel qualifications,
equipment and material specifications. In addition,_ EPA may
require submittal of data packages equivalent to those
generated in the EPA r.ontract Laboratory Program (CLP) and
may require laboratory analysis of performance samples
(blank ~nd/or spike samples) in sufficient number to
determine the capabilities of the laboratory. If a
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laboratory not in the CLP is selected, methods consistent
with CLP methods that would be used at this Site for the
purposes proposed and QA/QC procedures approved by EPA shall
be used. In addition, if the laboratory is not in the CLP
program, a laboratory QA program must be submitted for EPA
review and approval.
Upon approval of the Work Plan, the Settling Defendant shall
implement the Work Plan in accordance with the management
schedule. Significant "field" changes to the Work Plan shall
not be undertaken without the approval of EPA. Implementation
of the response actions shall include EPA review and/or approval
of required deliverables. The purpose of these reviews is for
EPA to assess the feasibility of the project to achieve the Site
Objectives in accordance with the ROD and Consent Decree,
including this SOW. Review and/or approval of submittals does
not imply acceptance of later submittals· that have not been
reviewed, nor that the remedy, when constructed, will meet
performance standards and be accepted.
TASK III -FINAL ACTION REPORT
Upon preli.rr:inary project completion, the Settling Defendant
shall prepare and submit a Response Action Report which
certifi8s that all items contained in the Consent Decree,
including the ROD and this SOW and all incorporated documents
( i. 9. , wo_rk· plans, reports and plans, etc. ) have been completed
and that the response actions are functional and operating and
has met all response action requirements. Such report shall be
c9rtified by a Professional Engineer or Geologist registered in
the State of North Carolina. The RA Report shall include the
following items:
1. Synopsis of the work defined in the SOW and
certification that this work was performed;
:2. Explanation of modifications made during the response
actions to the original Work Plan and why these changes
were made; and,
3. All applicable Record Drawings;
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After E.PA review, Settling Defendant shail address any comments o
and submit a revised .report. The response actions shall not be
considered complete until EPA approves the Final Report.
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TASK IV -PERFORMANCE MONITORING
Performance monitoring shall be conducted to ensure that the
site objectives for t_he remedy are met.
A. Remediation Goal Verification Plan
The purpose of the Remediation Goal Verification Plan is to
provide a mechanism to ensure that 1'ot:1". shert.term ar1ei lell!} t.e:rm
performance standards for the response actions are being met.
Guidances used in developing the Sampling and Analysis Plan
during the Work Plan phase shall be used. The Remediation Goal
Verification Plan shall be submitted with the Work Plan. Once
approved, the Remediation Goal Verification Plan shall be
implemented on the approved schedule. The Remediation Goal
Verification Plan· consists of two parts:
/
1. The Remediation Goal Verification Field Sampling and
Analysis Plan that provides guidance for all fieldwork
by defining in detail the sampling and data gathering
methods to be used on a project. The Verification
Field Sampling and Analysis Plan shall be written so
that a field sampling team unfamiliar with the site
would be able to gather the samples and field
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information required. ·
The Remediation Goal Verification Quality
Assurance/Quality Control plan that describes the
policy, organization, functional activities, and
quality assur~nce and quality control protocols
necessary to achieve the performance standards set
forth in the Record of Decision and the Remedial Design
plans and specifications.
B. Five Year Review
Because the selected.remedy will leave residual levels of
hazardous constituents onsite, EPA shall conduct a Five Year
Review to ensure that the remedy has reached the goal of being
protective of human health and the environment. The time period
for the five year review shall start on the day of the Work Plan
Approval.
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REFERENCES
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The following list, although not comprehensive, comprises many
of the regulations and guidance documents that apply to the
RD/RA process:
1. "National Oil and ·Hazardous Substances Pollution Contingency
Plan; Final Rule", Federal Register 40 CFR Part 300, March
8, 1990.
2. "Superfund Remedial Design and Remedial Action Guidance",
U.S. EPA, Office of Emergency and Remedial Response, June
1986, OSWER Directive No. 9355.0-4A.
3. "Interim Final Guidance on Oversight of Remedial Designs and
Remedial Actions Performed by Potentially Responsible
Parties", U.S. EPA, Office of Emergency and Remedial
Response, February 14, 1990, OSWER Directive No. 9355.5-01.
4. "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA, Interim Final", U.S. EPA,
Office of Emergency and Remedial Response, October 1988,
OSWER Directive No. 9355.3-01.
5. "A Compendium of Superfund Field Operations Methods", Two
Volumes, U.S. EPA, Office of Emergency and Remedial
Response, EPA/540/P-87/00la, August 1987, OSWER Directive
No. 9355.0-14.
6. "EPA NEIC Policies and Procedures Manual",
EPA-330/9-78-001-R, May 1978, revised November 1984.
7. "Data Quality Objectives for Remedia;t. Response Activities",
U.S. EPA, Office of Emergency and Remedial Response and
Office of Waste Programs Enforcement', EPA/540/G-87 /003,
March 1987, OSWER Directive No. 9335.0-7B,
8. "Guidelines and Specifications for Preparing Quality
Assurance Project Plans", U.S. EPA, Office of Research and
Development, Cincinnati, OH, QAMS-004/80, December 29, 1980.
9. "Interim Guidelines and Specifications for Preparing Quality
Assurance Project Plans", U.S. EPA, Office of Emergency and
Remedial Response, QAMS-005/80, December 1980.
10. "Users Guide to the EPA Contract Laboratory Program", u. S.
EPA, Sample·Management Office, August 1982.
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"Engineering Support Branch Standard Operating Pro~edures and Quality Assurance Manual", U.S. EPA Region IV, Environmental Services Division, April 1, 1986, (revised periodically).
12. "USEPA Contract Laboratory Program Statement of Work for Organic Analysis", U.S. EPA, Office of Emergency and Remedial Response, February 1988.
13. "USEPA Contract Laboratory Program Statement of Work fer Inorganic Analysis", U.S. EPA, Office of Emergency and Remedial Response, July 1988.
14. "Quality in the Constructed Project: A Guideline for Owners, Designers, and Constructors, Volume 1, Preliminary Edition for Trial Use and Comment", American Society of Civil Engineers, May 1988. 1
15. "Interim Guidance on Compliance with Applicable or Relevant and Appropriate Requirements", U.S. EPA, Office of emergency and Remedial Response, July 9, 1987, OSWER Directive No. 9234.0-05.
16. "CERCLA Compliance with Other Laws Manual", Two Volumes,
17.
18.
19 .
20.
U.S. EPA, Office of Emergency and Remedial Response, August 1988 (Draft), OSWER Directive No. 9234.1-01 and 102.
"Guidance on Remedial Actions·for Contaminated Ground Water at Superfund Sites", U.S. EPA, Office of Emerge·ncy and Remedial Response, (Draft), OSWER Directive No, 9283.1-2.
"Guide for Conducting Treatability Studies U.S. EPA, Office of Emergency and Remedial Pre-publication Version ·
i
Under CERCLA",
I Response,
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' \ "Health and Safety Requirements of Employees Emp_loyed in Field Activities•, U.S. EPA, Office of Emergency\and
Remedial Response, July 12, 1981, EPA Order No. 1440.2. '
"Standard Operating Safety Guides", U.S. EPA, Offi~~of Emergency and Remedial Response, November 1984. ·
21. "Standards for General Industry", Federal Register 29 CFR .Part 1910, Occupational Health and Safety Administration.
22. "Standards for the Construction Industry", Federal Register 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.
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24. ~Occupational Safety and Health Guidance Manual for
Hazardous Waste Site Activities", ~ational Institute of
Occupational Safety and Health/Occupational Health and
Safety Administration/United States Coast .
Guard/Environmental Protection Agency, October 1985.
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25. "TLVs -Threshold Limit Values and Biological Exposure
Indices-for 1987-88", American Conference of Gcvernmental
Industrial Hygienists.
26. "American National Standards Practices for Respiratory
Protection", American National Standards Institute
Z88.2-1980, March 11, 1981.
27. "Procedures for Completion and Deletion of NPL Sites", u.s.
EPA, Office of Emergency and Remedial Response, April 1989,
OSWER Directive No. 9320.2-JA. 1
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SUMMARY OF THE MAJOR DELIVERABLES FOR THE
REMEDIAL DESIGN AND REMEDIAL ACTION AT
THE NATIONAL STARCH:;. CHEMICAL CORPORATION SITE
DELIVERABLE
TASK I SCOPING
Technical Memorandum Documenting
Any Revised Site Objectives (5)
TASK II REMEDIAL DESIGN
Work Plan (15)
Sampling and Analysis Plan (15)
Health and Safety Plan (5)
TASK V PERFORMANCE MONITORING
Remediation Goal Verification
Plan (15)
EPA RESPONSE
Review and Approve
Review and Approve
Review and Approve
Review and Comment
Review and Approve
Note: The number in parenthesis
to be submitted by Respondent.
remainder shall be bound.
indicates the number of copies
One copy shall be unbound, the