NCD991278953_19910709_National Starch & Chemical Corp._FRBCERCLA RA_RD RA Consent Decree Scope of Work OU-2-OCR

D
n
u
m
a
I
•
I
•
I
I
I
I
I
I
I
I
\I ~.
NATIONAL STARCH & CHEMICAL CORP NPL SITE RD/RA CONSENT DECREE & SCOPE WORK -OU 2 JULY 1991
D
n
D
g
D
g
I
I
I
I
I
I
I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY~
REGION IV ~l~
345 COURTLAND STREET.NE l'lh,~J(// If> 'l/!'J.t;-/1),
ATLANTA. GEORGIA 30365 UIJ~ <. -< U ~'&
JUL O 9 1991 ~42) 1-981 4RC
William Meyer, Director
Division of Solid Waste Management
Dept. of Environment, Health and Natural Resources
P.O. Box 27687
Raleigh, N.C. 27611-7687
~l'~O.ft
RE: RD/RA Consent Decree and Scope of Work, National Starch
Chemical Company Site, Salisbury N.C., Operable Unit #2.
Dear Mr. Meyer:
Enclosed please find the final negotiated RD/RA Consent Decree
and Scope of Work for the above referenced site. As you can see
by the attachments the Consent Decree has been forwarded to
National Starch for signature. I am forwarding your department
a copy so that North Carolina will have lead time to review the
Consent Decree while we await the signature of National Starch.
The final language of the Consent Decree has been modified to
reflect the faft·that North Carolina intends to be a signatory
to the documenl. .
Section VI, Paragraph ll(c) (Performance of the Work), of the
Consent Deere~ states that the Site Work Plan will be submitted , .
by National Starch _within 45 days after signature of the Consent
Decree by all parties. Therefore it is important that the state
be prepared ~o sign the Decree as soon as possible. Towards
this end I wxll forward the signature page to your attention as
soon as I redieve the signed page from National Starch. I •
. I apologize for the delay in sending the PRP's "good faith"
offer to the state's attention, apparently due to a
misunderstanding the package was timely prepared but was not
actually mailed out for some time. It is my understanding that
Jill Hickey of the State Attorney General's Office has received
all copies of the Consent Decree and has been briefed on the
successful negotiations by Barbara Benoy the EPA Remedial
Project Manager.
Printed on Recycled Paper
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-2-
If you have any questions or concerns regarding the Consent
Decree please don't hesitate to contact me.
Sincer _ _'f}Y j · / 1 j Ji
Richa/~ii'f:vi'.~Vy'{t/ L:-': .
Assistant Regional c;61nsel
ORC, EPA Region IV U
Enclosures
cc: Barbara B~noy, EPA RPM
Darcy Duin, EPA RPM
Jill Hickey, DEHNR
Lee Crosby, DEHNR
---------. . . ----
I~ ". ' ,,
I
I
I
I
I
I
I
m
I CONSENT DECREE
NATIONAL STARCH AND CHEMICAL COMPANY SITE
m
I
g
g
m
m
g
u
D
I
I
I
I•
I II.
I III.
IV.
I v.
VI.
I VII.
VIII. I IX.
I x.
XI.
I XII.
XIII.
I XIV.
I xv.
XVI.
I XVII.
XVIII.
I XIX.
I xx.
XXI.
I XXII.
XXIII.
I XXIV.
XXV.
I
I
TABLE OF CONTENTS
BACKGROUND
JURISDICTION
PARTIES BOUND
DEFINITIONS ;
GENERAL PROVISIONS
PERFORMANCE OF THE WORK BY SETTLING DEFENDANT
ADDITIONAL RESPONSE ACTIONS
U.S. EPA PERIODIC REVIEW
QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS
ACCESS . . . . . . .
REPORTING REQUIREMENTS
SUBMISSIONS REQUIRING AGENCY APPROVAL
PROJECT COORDINATORS . . . . . . .
ASSURANCE OF ABILITY TO COMPLETE WORK
CERTIFICATION OF COMPLETION
EMERGENCY RESPONSE
REIMBURSEMENT OF RESPONSE COSTS
INDEMNIFICATION AND INSURANCE
FORCE MAJEURE.
DISPUTE RESOLUTION
STIPULATED PENALTIES
COVENANTS NOT TO SUE BY PLAINTIFFS
COVENANTS BY SETTLING DEFENDANT ..
EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION
ACCESS TO INFORMATION . . . . . . . . . . . . .
Page No.
1
4
4
5
9
13
16
17
18
20
22
25
27
29
30
33
34
37
39
42
46
50
54
54
55
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
XXVI.
XXVII.
XXVIII.
XXIX.
XXX.
XXXI.
XXXII.
XXXIII.
XXXIV.
RETENTION OF RECORDS
NOTICES AND SUBMISSIONS
EFFECTIVE DATE
RETENTION OF JURISDICTION
APPENDICIES ....
COMMUNITY RELATIONS
MODIFICATION
LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
SIGNATORIES . . . . . . . . . . . . . .
57
59
60
60
61
61
61
62
63
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
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,
v.
National Starch & Chemical
Company
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
CONSENT DECREE
I. BACKGROUND
CIVIL ACTION NO.:
A. The United States of America ("United States"), on
behalf of the Administrator of the United States Environmental
Protection Agency ("EPA"), filed a Complaint in this matter
pursuant to Sections 106 and 107 of the Comprehensive
Environmental Response, Compensation and Liability Act,
( "CERCLA" ) , 4 2 U.S. C. §§ 9 6 0 6 , 9 6 0 7 .
B. The United States in its·Complaint seeks:
(1) reimbursement of costs incurred by EPA for
response actions at the National Starch & Chemical Company
Superfund Site in Salisbury, Rowan County, North Carolina,
together with accrued interest; (2) an injunction requiring
Defendant to perform studies and response work at the Site in
conformity with the Record of Decision (as defined below) and
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-2-
the National Contingency Plan, 40 C.F.R. Part 300 (as amended)
("NCP"); (3) declaration of Defendant's liability for further
response costs; and (4) such other relief as the Court finds
appropriate.
C. In accordance with the NCP and Section 12l(f)(l)(F) of
CERCLA, 42 U.S.C. § 9621(f)(l)(F), EPA notified the State of
North Carolina (the "State") on December 11, 1990 of
negotiations with the potentially responsible party 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 resource 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
encoura.ged the trustees to participate in the negotiation of
this Consent Decree.
E. The Defendant that entered this Consent Decree
("Settling Defendant") does not admit any liability to the
Plaintiff arising out of the transactions or ·occurrences
alleged in the Complaint.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-3-
F. Pursuant to Section 105 of CERCLA, 42 u.s.c. § 9605,
EPA placed the Site on the National Priorities List in April
1985.
G. In response to a release or threat of a release of a
hazardous substance at or from the Site, the Settling
Defendant commenced, with EPA oversight, in January 1987, a
·Remedial Investigation and Feasibility Study ("RI/FS") for the
Site pursuant to 40 C.F.R. § 300.430;
H. The Settling Defendant, with EPA oversight, completed
a Remedial Investigation ("RI") Report on June 21, 1988, and
completed a Feasibility Study ("FS") Report in August 1990;
I. Pursuant to Section 117 of CERCLA, 42 u.s.c. § 9617,
EPA published notice of the completion of the FS and of the
proposed plan for remedial action in July 1990, in a major
local newspaper of general circulation. EPA provided an
opportunity for written and oral comments from the public on
the proposed remedial action. A copy of the transcript of the
public meeting is available to the public as part of the
administrative record upon which the Regional Administrator
based the selection of the response action.
J. The decision by EPA on the response action to be
implemented at the Site as Operable Unit 2 is embodied 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 sunnnary to the public comments. Notice of the
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-4-
final plan was published in accordance with Section 117(b).
L. Based on the information presently available to EPA
and the State, EPA and the State believe that the Work as
defined herein, 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 between the Parties, and
that this Consent Decree is fair, reasonable, and in the
public interest.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, and
DECREED.
II. JURISDICTION
1. This Court has jurisdiction over the subject matter of
this action pursuant to 28 u.s.c. §§ 1331, 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 jurisdiction of the Court or to venue in this District.
Settling Defendant shall not challenge this Court's
jurisdiction to enter and enforce this Consent Decree.
III. PARTIES BOUND
2. This Consent Decree applies to and is binding upon the
Unite·d States, the State of North Carolina, and upon the
Settling Defendant and its agents,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
ii
I
-5-
successor~ and assigns. Any change in ownership or corporate
status of the Settling Defendant including, but not limited
to, any transfer of assets or real or personal property shall
in no way alter Settling Defendant's responsibilities under
this Consent Decree.
3. Settling Defendant shall provide a copy of this
Consent Decree to each contractor hired to perform the Work as
defined herein required by this Consent Decree and to each
person representing Settling Defendant with respect-to the
Site or the Work and shall condition all contracts entered
into hereunder upon performance of the Work in conformity with
the terms of this Consent Decree. Settling Defendant or its
contractors shall provide written notice of the Consent Decree
to all subcontractors hired to perform any portion of the.Work
required by this Consent Decree. Settling Defendant shall
nonetheless be responsible for ensuring that its contractor
and subcontractors perform the Work contemplated herein in
accordance with this Consent Decree. With regard to the
activities undertaken pursuant to this Consent Decree, each
contractor and subcontractor shall be deemed to be in a
contractual relationship with the Settling Defendant within
the meaning of Section 107(b).(3) of CERCLA, 42 u.s.c.
S 9607(b)(3).
IV. DEFINITIONS
4. Unless noted·to the contrary, the terms of this
Consent Decree shall have the.meaning assigned to those terms
pursuant to CERCLA.· Whenever the terms listed below are used I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I in this Consent Decree and the
attachedlhereto, the following
-6-
Exhibits and Appendices
definitions shall apply:
I "CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended,
I 42 u.s.c, S 9601 et seq.
!"Consent Decree" shall mean this Decree and all
appendices attached hereto. In the event of conflict between . I
this Decree and any appendix, this Decree shall control.
I "Day" shall mean a calendar day unless expressly
stated to be a working day. "Working day" shall mean a day I
other than a Saturday,
holiday. I In computing
I Decree, where the last
I
Sunday, North Carolina State or Federal
any period of time under this Consent
day would fall on a Saturday, Sunday,
State or !Federal holiday, the period shall run until the end
of the next working day. . I
"EPA" shall mean the United States Environmental
ProtectiJn Agency and any departments or agencies of the
' United States.
I
'
1" Future Response Costs" shall mean all costs,
I including·, but not limited to, indirect costs, that the United . I
States an~ the State incur in overseeing the Work, including,
but not limited to, payroll costs, contractor costs, travel !
~osts, laboratory costs, the costs incurred pursuant to
Sectio.n X \ (Access) , and the costs of reviewing or developing
plans, reports and other items pursuant to this Consent
Decree, verifying the work, or otherwise implementing or
enforcing this Consent Decree. Future Response Costs shall
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-7-
also include all costs, including indirect costs, incurred by
the United States in connection with the Site between February
· 28, 1991, and the effective date of this Consent Decree and
all interest on the Past Response Costs from February 28,
1991, until the date of the payment of the Past Response
Costs.
"National Contingency Plan" or "NCP" shall mean the
National Oil and Hazardous Substance Pollution Contingency
Plan promulgated pursuant to Section 105 of CERCLA, 42 U.S.C.
§ 9605, codified at 40 C.F.R .. Part 300 et seq., including any
amendments thereto.
"Operation and Maintenance" or "0 §. M" shall mean all .
activities required to maintain the effectiveness of the
Remedial Action as required under the Operation and
Maintenance Plan approved or developed by EPA pursuant to this
Decree and the Statement of Work (SOW).
"Paragraph" shall mean a portion of this Consent
Decree 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 not limited to, interest and indirect costs,
that the United States incurred with regard to the Site prior
to February 28, 1991, not covered by the Administrative Order
on Consent between the parties, docket number 87-01-C.
"Performance Standards" shall mean those cleanup
standards, standards of control, and other substantive
requirements, criteria or limitations, set forth in the ROD,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-8-
and all applicable relevant appropriate requirements, as
identified in Task I of the SOW.
"Plaintiffs" shall mean the United States,and the
State of North Carolina.
"Record of Decision" or "ROD" shall mean the EPA
Record of Decision relating to the second Operable Unit at the
Site signed on September 28, 1990 by the Regional
Administrator, EPA Region IV, and all attachments thereto.
"RCRA" shall mean the Solid Waste Disposal Act, as
amended, 42 u.s.c. SS 6901 et seq. (also known as the Resource
Conservation and Recovery Act).
"Response Action" shall mean those activities, except
for Operation and Maintenance, to be undertaken by the
Settling Defendant to implement the final plans and
specifications submitted by the Settling Defendant pursuant to
the Statement of Work and approved by EPA, including, but not
limited to, any additional response actions authorized by
Sections 104 and 106 of CERCLA 42 U.S.C. 9604, 9606, 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 numeral and including one or more
paragraphs.
"Settling Defendant" shall mean National Starch &
Chemical Company.
"Site" shall mean the National Starch & Chemical Company
Superfund Site, encompassing approximately 500 acres, located
at Cedar Springs Road•in Salisbury, Rowan
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
, I
I
I
I
-9-
County, North Carolina, as 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 Action and
Maintenance at the Site, as set forth in Appendix B to this
Consent Decree and any modifications.
"Supervising Contractor" shall mean the contractor
retained by the Settling Defendant to carry out the Work under
this Consent Decree.
"United States" shall mean the United States of
America, including the Department of Justice and United States
Environmental Protection Agency.
"Waste Material" shall mean (1) any "hazardous
substance" under Section 101(14)·of CERCLA, 42 u.s.c. § 9601
(14); (2) any "solid waste" under Section 1004(27) of RCRA, 42
u.s.c. § 6903(27); and (3) any "hazardous material" under any
applicable state statute.
"Work" shall mean all activities Settling Defendant
is required to perform under this Consent Decree, except those
required by Section XXVI (Retention of Records).
V. GENERAL PROVISIONS
5. Objectives of the Parties
The objectives of the Parties in entering into this
Consent Decree are to protect public health, welfare, and the
environment from releases or threatened releases of Waste
Material from those portions of the Site addressed by
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-10-
Operable Unit #2 of the Site, as defined in the ROD, by the
design and implementation of the Response Actions and
Operation & Maintenance at the Site by the Settling Defendant
and to reimburse the Plaintiffs' response costs.
6. Effect of Settlement
This Consent Decree was negotiated at arm's length and
executed by the Parties in good faith to avoid protracted
litigation and is a settlement of claims which were
contested. The Plaintiff and the Settling Defendant agree
that this Consent Decree, shall not create any rights on
behalf of any other person not a party hereto. Settling
Defendant does not admit, the determinations, allegations,
findings of fact, if any, and conclusions in the complaint
filed in this action and specifically reserves the right to
contest any such determinations, allegations, findings and
conclusions except in any proceeding to enforce Defendant's
obligations pursuant to this Consent Decree. Additionally,
pursuant 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.
7. Commitments by Settling Defendant
a. Settling Defendant shall finance and perform the
Work in accordance 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 reimburse the United
•
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-11-
States and the State for Past Response Costs and Future
Response Costs as provided in this Consent Decree.
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.
8. 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 by EPA, shall be considered to be
consistent with the NCP.
9. Permits
a. As provided in Section 12l(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 all such permits or approvals.
b. Settling Defendant may seek relief pursuant to
Section XIX (Force Majeure) for any delay in the performance
of the Work resulting from a failure to obtain, or delay in
obtaining, any permit required for the Work.
c. This Consent Decree is not, and shall not be
I
I
I
Ii
I
1·
I
I
I
I
I
I
I
I
I
I
I
I
I
-12-
construed_ t_o be, a permit issued pursuant to any federal or
state statute or regulation.
10. Notice of Obligations to Successors-in-Title
a. Within 15 days after the entry of this Consent
Decree, the Settling Defendant shall record a notice of this
Consent Decree and a map indicating the area of contamination
on the site with the Recorder's Office, Rowan County, State of
North Carolina. Thereafter, each deed, title, or other
instrument of conveyance for property included in the Site
shall contain a notice stating that the property is subject to
this Consent Decree and the Unilateral Administrative Order
for Operable Unit 1, dated July 27, 19.89, and shall reference
the Consent Decree, the Unilateral Administrative Order for
Operable Unit 1 and any restrictions applicable to the
property under this Consent Decree.
b. The obligations of the Settling Defendant with
respect 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 transfer records are maintained for the
property, a notice of obligation to provide access and related
covenants. Each subsequent deed to any 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
I
I
I
I
I
I?
,I
I
I
1·
'I
'I
I
I
I
I
I
I
I
-13-
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
11. Selection of Supervising Contractor.
a. All aspects 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 acceptance, not to be unreasonably witheld, by
EPA. Within 30 days after the signature of this Consent
Decree by the parties, the Settling Defendant shall notify EPA
in writing of the name, title, and qualifications of any
contractor proposed to be the Supervising Contractor. If at
I
I
I
I
I
I
,I
I
I
I
I
I
I
I
I
I
I
I
I
-14-
any time thereafter the Settling Defendant proposes to change
a supervising Contractor, the Settling Defendant shall give
such notice to EPA and shall obtain acceptance from EPA, after
a reasonable opportunity for review and comment by the State,
before the new Supervising Contractor performs any Work under
this Consent Decree.
b. EPA shall notify the Settling Defendant in
writing of its approval or disapproval of a proposed
Supervising Contractor. If EPA disapproves of the selection
of any contractor as Supervising Contractor, the Settling
Defendant shall submit to EPA a list of contractors, including•
the qualifications of each contractor, that would be
acceptable to them, to EPA within 30 days of receipt of EPA's
disapproval of the contractor previously selected. EPA will
provide written notice of the names of the contractor(s) that
it would be acceptable. Settling Defendant may select any
acceptable contractor from that list and shall notify EPA of
the name of the contractor selected within 21 days of EPA's
designation of acceptable contractors. If EPA fails to
provide written notice of its approval or disapproval of the
names on 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 Decree, Settling Defendant may seek relief under the
provisions of Section XIX (Force Majeure) hereof ..
c. Within 45 days of. signature of this Consent Decree
by the parties, Settling Defendant shall submit a Site Work
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-15-
Plan for the Work as specified in the ROD and the SOW. The
Site Work Plan shall be developed according to the SOW and
a.hall be consistent with the ROD, EPA Superfund Remedial
Design and Remedail Action Guidance, and any additional
guidance documents identified by,EPA. Upon approval of the
Site Work Plan by EPA, it shall be incorporated into and
become a part of this Consent Decree.
d. The Site Work Plan submittal shall include, but
not be limited to, a schedule for submittal of the following
plans: (1) a Health and Safety Plan including a Contingency
Plan; (2) a Sampling and Analysis Plan consisting of a Field
Sampling and Analysis Plan and a Quality Assurance Project
Plan. The Site Work Plan shall also include a schedule for
the implementation of the Site Work Tasks identified in the
SOW, and a submittal of Site Work Plan reports. The Health
and Safety Plan shall conform to the applicable occupational
• Safety and Health Administration and EPA requirements,
including,· but not limite9, to, 29 C.F.R.1910.120.
f. Upon approval of the Site Work Plan by EPA, and
the submittal of the Health and Safety Plan for all field
activities, the Settling Defendant shall implement the
monitoring activities required under said plan in accordance
with the schedule therein. Unless otherwise directed by EPA
the Settling Defendant shall not begin field activities until
EPA approval of the Site Work Plan.
g. The Work performed by the Settling Defendants
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
'.;"1 I
I
I
I
-16-
shall at a minimum, achieve the goals of the ROD and be
protective of human health and the environment.
h. Settling Defendants acknowledge and agree that
Nothing in this Consent Decree, the SOW or the Work Plans
constitutes a warranty of any kind by the Plaintiff that
compliance with the Work requirements set forth in the SOW and
the Work Plans will achieve the goals of the ROD and maintain
protective levels for human health.and the environment at the
Site.
VII. ADDITIONAL RESPONSE ACTIONS
12. In the event that EPA or the Settling Defendant
determines that additional response actions are necessary to
carry out the Response Actions selected in the ROD. Written
notification of such additional response actions shall be
provided to the Project Coordinator for the other party.
13. Within 30 days of receipt of written notice from EPA
that additional response actions are necessary to carry out
the Response Actions 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 comment by
the State, a work plan for the additional response actions.
Upon approval of the plan pursuant to Section XII (Submissions
Requiring Agency Approval), Settling Defendant shall implement
the plan for additional response action in accordance with the
schedule contained therein.
14. Any additional response actions that Settling
Defendant determines are necessary to carry out the Response
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-17-
Actions selected in the ROD shall be subject to approval by
EPA, after reasonable opportunity for review and comment by
the State, and, if authorized by EPA, shall be completed by
Settling Defendant in accordance with.plans, specifications,
and schedules approved by EPA pursuant to Section XII
(Submissions Requiring Agency Approval).
15. Settling Defendant may invoke the procedures set
forth in section XX (Dispute Resolution) to dispute EPA's
determination that additional response actions are necessary
to carry out the Response Actions selected in the ROD as being
arbitrary and capricious or otherwise not in accordance with
law. Such dispute shall be resolved on the administrative
record.
VIII. U.S. EPA PERIODIC REVIEW
16. Settling Defendant shall conduct any studies and
investigations as requested by EPA in order to permit EPA to
conduct review at least every five years as required by
Section 12l(c) of CERCLA and any applicable regulations.
17. If required by Sections 113(k)(2) or 117 of CERCLA,
Settling Defendant and the public shall be provided with an
opportunity to comment on any additional response actioris
proposed by EPA as a result of the review conducted pursuant
to Section 12l(c) of CERCLA and to submit written comments for
the record during the public comment period. After the period
for submission of written comments is closed, the Regional
Administrator, Region IV, shall determine in writing_whether
additional response actions are appropriate.
I
I
I
I
••
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-18-
18. If the Regional Administrator, EPA Region IV
determines that information received, in whole or in part,
during the review conducted pursuant to Section 121(c) of
CERCLA, indicates that the Response Actions are not protective
of human health and the environment, the Settling Defendant
shall undertake any additional response actions in accordance
with Section 104 or 106 of CERCLA, 42 U.S.C. 9604 or 9606,
that EPA has determined are appropriate. EPA shall notify the
Settling Defendant .in writing of the nature, scope and reasons
for the additional response action. The Settling Defendant may
invoke the procedures set forth in Section XX (Dispute
Resolution) to dispute EPA's determination regarding
additional response actions as being arbitrary and capricious
or otherwise not in accordance with law. Such a dispute shall
be resolved on the administrative record.
IX. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS
19. 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 and 004)
and subsequent amendments to such documents upon notification
to Settling Defendant of such amendment by EPA. Any such
amended documents shall apply only to procedures conducted
after such notification. Prior to the commencement of any
monitoring project under this Consent Decree, Settling
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-19-
Defendant~shall submit for approval by EPA, a Quality
Assurance Project Plan ("QAPP") to 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
admissible as evidence, without objection, in any proceeding
under this Decree. Settling Defendant shall assure that EPA
and State personnel and their authorized representatives are
allowed access to all laboratories utilized by Settling
Defendant in implementing this Consent Decree. In addition, .
Settling Defendant shall assure that such laboratories shall
analyze all samples submitted by EPA pursuant to the QAPP for
quality assurance monitoring. Settling Defendant shall ensure
that the laboratories utilized by it for the analysis of
samples taken pursuant to this Decree perform all analyses
according to accepted EPA methods. Accepted EPA methods
consist of those methods which are documented in the "Contract
Lab Program Statement of Work for Inorganic Analysis" and the
"Contract Lab Program Statement of Work for Organic Analysis,"
dated February 1988, and any amendments made thereto during
the course of the implementation of this Decree. Settling
Defendant shall ensure that all laboratories used by them for
analysis of samples taken pursuant to this Consent Decree
participate in an EPA or EPA-equivalent QA/QC program.
20. Upon request, the Settling Defendant shall allow
split or duplicate samples to be taken by EPA, the State, or
their authorized representatives. Settling Defendant shall
notify
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-20-
EPA and the. State, not less than 28 days in advance of any
sample collection activity. In addition, EPA and the State
shall have the right to take any additional samples that EPA
deems necessary. Upon request, EPA and th~ State shall allow
the Settling Defendant to take split or duplicate samples of
any samples it takes.
21. Within 7 days of a request by EPA, Settling Defendant
shall submit to EPA and the State 4 copies of the results of
all sampling and/or tests or other data obtained or generated
by or on behalf of Settling Defendant with respect to the Site
and/or the implementation of this Consent Decree.
22. Notwithstanding any provision of this Consent Decree,
the United States and the State hereby retain all of their
information gathering and inspection authorities and rights,
including enforcement actions related thereto, under CERCLA,
RCRA and any other applicable statutes or regulations.
X. ACCESS _.,
23. 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 their representatives,
including EPA and its contractors, shall have access at all
times to the Site and other property to which access is
required for the implementation of this Consent Decree, to the
extent access to the property is controlled by Settling
Defendant, for the purposes of conducting any activity
.,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-21-
authorized by or related to CERCLA, RCRA, the NCP or this
Consent Decree including, but not limited to:
a. Monitoring the Work;
b. Verifying any data or information submitted to
the United States;
c. Conducting investigations relating to
contamination at or near the Site;
d. Obtaining samples;
e. Assessing the need for, planning, or implementing
additional response actions at or near the Site;
f. Inspecting and copying records, operating logs,
contracts, or other documents maintained or generated by
Settling Defendant or its agents; or
g. Assessing Settling Defendant's compliance with
this Consent Decree.
24. To the extent that the Site or any other property to
which access is required for the implementation of this
Consent Decree is owned or controlled by oersons other than -.
Settling Defendant, Settling Defendant shall use best efforts
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
contractors, as necessary to effectuate this Consent Decree.
For purposes of this paragraph "best efforts" includes the
payment of reasonable sums of money in consideration of
access. If any access required to complete the Work is not
obtained within 45 days of the date of entry of this Consent
I
I
I
I
I
I
I
I
I
I
I
I
I
n
n
D
m
I
I
-22-
Decree, or within 45 days of the date EPA notifies the
Settling Defendant in writing that additional access beyond
that previously secured is necessary, Settling Defendant shall
promptly notify the United States, and shall include in that
notification a summary of the steps Settling Defendant has
taken to attempt to obtain access. The United
States may, as it deems appropriate, assist Settling Defendant
in obtaining access.
25. 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
26. In addition to any other requirement of this Consent
Decree, Settling Defendant shall submit to EPA and the State 2
copies of written periodic progress reports which: (a)
describe the actions which have been taken toward achieving
compliance with this Consent Decree during the previous
period; (b) include a summary of all results of sampling and
tests and all other data received or generated by Settling
Defendant or its contractors or agents in the previous period;
(c) identified all work plans, plans and other deliverables
required by this Consent Decree completed and submitted during
the previous period; (d) describe all actions, including, but
not limited to, data collection and implementation of work
plans, which are scheduled for the next period and provide
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
0
0
D
-23-
other information relating to the progress of construction,
including but not limited to, critical path diagrams, Gantt
charts and Pert charts; (e) include information regarding
percentage of completion, unresolved delays encountered or
anticipated that may affect the future schedule for
implementation of the Work, and a description of efforts made
to mitigate those delays or anticipated delays; (f) include
any modification of the work plans or other schedules that
Settling Defendant has submitted to EPA or that have been
approved by EPA; and (g) describe all activities undertaken in
support of the Community Relations Plan during the previous
period and those to be undertaken in the next period. During
the design and construction phases of the Work the progress
reports shall initially be submitted on a monthly basis. Upon
written notification by EPA the Settling Defendants will later
submit the progress reports on a quarterly basis. Settling
Defendant shall submit these progress reports to EPA and the
State by the tenth day of every period following the effective
date of this Consent Decree until Certification of Completion
of the Response Actions -pursuant to Section XV. (Certification
of Completion). If requested by EPA or the State, Settling
Defendant shall provide periodic briefings for EPA and the
State to discuss the progress of the Work.
27. The Settling Defendants shall notify EPA of any
change in the schedule described in the periodic progress
report for the performance of any activity, including, but not
limited to, data collection and implementation of work plans,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
ft
D
0
-24-
no later than seven days prior to the performance of the
activity.
28. Upon the occurrence of any event during performance
of the work that Settling Defendant is required to report
pursuant to Section 103 of CERCLA or Section 304 of the
Emergency Planning and Community Right-to-know Act (EPCRA),
Settling Defendant shall within 24 hours of the on-set of such
event orally notify the EPA Project Coordinator or the
Alternate EPA Project Coordinator (in the event of the
unavailability of the EPA Project Coordinator), or, in the
event that neither the EPA Project Coordinator or Alternate
EPA Project Coordinator is available, the Emergency Response
Section, Region 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 event, Settling
Defendant shall furnish to Plaintiffs a written report, signed
by the Settling Defendant's Project Coordinator, setting forth
the events which occurred and the measures taken, and to be
taken, in response thereto. Within 30 days of the conclusion
of such an event, Settling Defendant shall submit a report
setting forth all actions taken to respond thereto.
29. Settling Defendant shall submit to the Court, and EPA
and the State each year, within 30 days of the anniversary of
the entry of the c·onsent Decree, a report setting forth the
status of the Work, which shall at a minimum include a
statement of major milestones accomplished in the prec_eding
I
I
I
I
I
I
I
I
I
I
I
I
I
1•
I
I
I
I
I
I
-25-
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 the State.
30. Settling Defendant shall submit 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. Settling Defendant shall simultaneously
submit copies of all such plans, reports and data to the
State.
31. All reports and other documents submitted by Settling
Defendant to EPA (other than the periodic 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
31. After review of any plan, report or other item which . .
is required to be submitted for approval pursuant to this
Consent Decree, EPA, after reasonable opportunity for review
and comment by the State, shall: (a) approve, in whole or in
part, the submission; (b) disapprove, in whole or in part, the
submission, notifying Settling Defendant in writing of the
deficiencies; (c) direct that the Settling Defendant modify
the submission; (d) approve the submission upon specified
conditions; (e) modify the submission to cure the
deficiencies; or (f) any combination of the above.
32. In the event of approval, approval upon conditions,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
D
D
E
I
-26-
or modification by EPA, Settling Defendant shall proceed to
take any action required by the plan, report, or other item,
as approved or modified by EPA subject only to its right to
invoke the Dispute Resolution procedures set forth in Section
XX (Dispute Resolution) with respect to the modifications or
conditions made by EPA.
33. Upon receipt of a notice of disapproval or a notice
requiring a modification, Settling Defendant shall, within 21
days or such other time as specified by EPA in such notice,
correct the deficiencies and resubmit the plan, report, or
other item for approval. Notwithstanding the notice of
disapproval, Settling Defendant shall proceed, at the
direction of EPA, to take any action required by any
non-deficient portion of the submission.
34. In the event that a resubmitted plan, report or other
item, or portion thereof, is disapproved by EPA, EPA may again
require the Settling Defendant to correct the deficiencies, in
accordance with the preceding paragraphs. EPA also retains
the right to amend or develop the plan, report or other item.
Subject only to its right to invoke procedur~s set forth in
Section XX (Dispute Resolution), Settling Defendant shall
implement any such plan, report, or item as amended or
developed by EPA.
35. If, upon the first resubmission or upon any
subsequent resubmission, the plan, report, or item is
disapproved by EPA, Settling Defendant shall be deemed to be
in violation of the provision of this Consent Decree requiring
I
I
I
I
I
I
I
I
I
I
I
I
I
D
D
E
I
I
I
-27-
the Settling Defendant to submit such plan, report, or item
unless the Settling Defendant invokes the dispute resolution
procedures set forth in Section XX (Dispute Resolution) and
this Court overturns EPA's disapproval pursuant to that
Section. The provisions of Section XX (Dispute resolution) and
Section XXI Stipulated Penalties) shall govern the
implementation of the Work and accrual and payment of any
stipulated penalties during Dispute Resolution.
Implementation of any portions of the submissions which are
not deficient shall not relieve Settling Defendant of any
liability for stipulated penalties under Section XXI
(Stipulated Penalties).
• 37. All plans, reports, and other items required to be
submitted to EPA under this Consent Decree shall, upon
approval by EPA be deemed to be incorporated in and an
enforceable part of this Consent Decree. In the event EPA
approves a portion of a plan, report, or other item required
to be submitted to EPA under this Consent Decree, the approved
portion shall be deemed to be incorporated in and an to be
incorporated in and an enforceable part of this Consent
Decree.
XIII. PROJECT COORDINATORS
38. Within 20 days of lodging this Consent Decree,
Settling Defendant, and EPA shall notify each other, in
writing, of the name, address and telephone number of their
respective designated Project Coordinators and Alternate
Project Coordinators. If a Project Coordinator or Alternate
I
I
I
I
I
I
I
I
I
I
I
I
I
g
n
n
m
I
I
-28-
Project 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, unless impracticable, but
in no event later than the actual day the change is 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 representative for
oversight of performance of daily operations during response
activities.
39. Plaintiffs may designate other representatives,
including, but not limited to, EPA and State employees, and
federal and State contractors and consultants, to observe and
monitor the progress of any activity undertaken pursuant to this
Consent Decree. EPA's Project Coordinator and Alternate Project
Coordinator shall have the authority lawfully vested in a Remdial
Project Manager (RPM) by the National Contingency Plan, 40 C.F.R.
Part 300. In addition, EPA's Project Coordinator or Alternate
Project Coordinator shall have authority, consistent with the
National Contingency Plan, to halt any Work required by this
Consent Decree and to take any necessary response action when
s/he determines that conditions exist at the site that causes or
threatens a release of Waste Material that constitute an
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
u
D
D.
m
-29-
emergency situation or may present an immediate threat to public
health or welfare or the environment.·
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK
40. The Settling Defendant has submitted financial
documentation to the Plaintiffs which has enabled EPA to make a
determination that the Settling Defendant is finanacially capable
of completing the Work called for in the ROD, this Consent
Decree, and the SOW. Should it be determined that additional
response activities are required pursuant to Section VIII ( U.S.
Periodic Review) EPA retains the right to require that the
Settling Defendant establish and maintain financial security in
an amount necessary to ensure the completion of the additional
response activities 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 .. ~arJ:_ 265.1J3(f).
41. If the Settling Defendant seeks to demonstrate the
ability to complete the additional response activities through a
guarantee by a third party pursuant to Paragraph 40.d. of this
Consent Decree, Settling Settling Defendant shall demonstrate
I
I
I
I
I
I
I
I
m
a
n
I
I
I
I
I
I
I
I
-30-
that the guarantor passes 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 effective date of this Consent Decree. In
the event that EPA, after a reasonable opportunity for review and
comment by the State, determines at any time that the financial
assurances provided pursuant to this Paragraph are inadequate,
Settling Defendant shall, within 30 days of receipt of notice of
EPA's determination, obtain and present to EPA for approval one
of the other forms of financial assurance listed in Paragraph 39
of this Consent Decree. Settling Defendant's inability to
demonstrate financial ability to complete the Work shall not
excuse performance of any activities required under this Consent
Decree.
XV. CERTIFICATION OF COMPLETION
42. Completion of the Response Actions
a. Within 90 days after Settling Defendant concludes
that soil sampling is no longer required 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 engineer and the Settling
Defendant's Project
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
n
u
-31-
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 Coordinator:
"I certify that 'the information contained in or accompanying this submission is true, accurate and complete. I am aware that there are significant penalties for submitting false infomation including the possibility of fines and /or imprisonment for knowing violations."
If, after completion of the pre-certification inspection and
receipt and review of the written report, 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 with this Consent Decree, EPA shall notify Settling
Defendant in writing of the activities that must be undertaken to
complete the Response Actions. EPA shall set forth in the notice
a schedule for performance of such activities consistent with the
Consent Decree and the SOW or 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 to its right to invoke the
dispute resolution procedures set forth in Section XX (Dispute
Resolution).
b. If EPA concludes, based on the initial or any
subsequent Certification of Completion by Settling Defendant and
I
I
I
I
I
I
I
I
ft
0
m
I
I
I
I
I
I
I
•
-32-
after a reasonable opportunity for review and comment by the
State, that the Response Actions have been fully performed in
accordance with this Consent Decree, EPA shall so certify in
writing to Settling Defendant. This certification shall
constitute the Certification of Completion of the Response
Actions for purposes of this Consent Decree, including, but not
limited to, Section XXII (Covenants Not to Sue by Plaintiffs).
Certification of Completion of the Response Actions does not in
any way affect Settling Defendant's remaining obligations under
this Consent Decree, including, but not limited to, access,
Operation and Maintenance, record retention, indemnification,
insurance, and payment of Future Response Costs and penalties.
43. Completion of the Work
a. Within 90 days after Settling Defendant concludes
that all phases of the Work (including O & M), have been fully
performed, Settling Defendant shall so certify to the United
States and the State by submitting a written report by a
registered professional engineer certifying that the Work, has
been completed in.full satisfaction of the requirements of this
Consent Decree. The report shall contain the following
statement, signed by a responsible corporate official of Settling
Defendant or the Settling Defendant's project Coordinator:
"I certify that the information contained in or
accompanying this submission is true, accurate and
complete. I am aware that there are significant
penalties for submitting false infomation including
fines and/or imprisonment for knowing violations.
If, after review of the written report, EPA, after reasonable
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-33-
opportunity to review and comment by the State, determines that
any portion of the Work, with the exception of the requirements
of Section XXVI( Retention of Records), has not been completed in
accordance with this Consent Decree, EPA shall notify Settling
Defendant in writing of the activities that must be undertaken to
complete the Work. EPA shall set forth in the notice a schedule
for performance of such activities consistent with the Consent
Decree and the SOW or 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
therein, subject to its right to invoke the dispute resolution
procedures set forth in Section XX (Dispute Resolution).
b. If EPA concludes, based on the initial or any
subsequent Certification of Completion by Settling Defendant and
after a reasonable opportunity for review and comment by the
State, that the Work, with the exception of the requirements of
Section XXVI has been fully performed in' accordance with this
Consent Decree, EPA shall so notify the Settling Defendant in
writing.
XVI. EMERGENCY RESPONSE
44. In the event of any action or occurrence during the
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 45,
..
I
I
I
I
I
I
I
I
I
I
m
g
n
H
D
D
I
m
E
-34-
immediately take all appropriate action to prevent, abate, or
minimize such release or threat of release, and shall immediately
notify the EPA's Project Coordinator, or, if the Project
Coordinator 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
consultation with the EPA's Project Coordinator and 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, Settling Defendant shall reimburse EPA and the
State all costs of the response action not in~onsistent with the
NCP.
45. 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, abate, or minimize an actual
or threatened release of Waste Material on, at, or from the Site.
XVII. REIMBURSEMENT OF RESPONSE COSTS
46. Within 30 days of the effective date of this Consent
Decree, Settling Defendant shall:
a. Pay to EPA$ 221,746.65, plus interest on this
ainount at the rate established pursuant to CERCLA Section 107
I
I
I
I
I
I
I
n
D
M
E
I
I
I
I
I
I
I
I
-35-
from the date listed in the definition of Past Response Costs to
the effective date of this Consent Decree, in the form of a
certified check or checks made payable to "EPA Hazardous
Substance Superfund," and referencing CERCLA Number TGB04DPL7 and
DOJ case Number _____ , in reimbursement of Past Response
Costs. The Settling Defendant shall forward the certified check
to EPA Region IV, Attn: Superfund Accounting, P.O. Box 100142,
Atlanta, Georgia 30384, Attn: Collection Officer for Superfund.
The Settling Defendant shall send copies of the check to the
United States.
47. Settling Defendant shall reimburse the United States and
the State for all Future Response Costs not inconsistent with the
National Contingency Plan incurred by the United States and the
State. The United States and the State shall each send Settling
Defendant a bill requiring payment that includes an appropriate
accounting of costs, which includes all direct and indirect costs
incurred by EPA, DOJ arid the State and their contractors on a
periodic basis. Settling Defendant shall make all payments in
the manner described in Paragraph 46, within 30 days of Settling
Defendant's receipt of each bill requiring payment, except as
otherwise provided in Paragraph 48.
48. Settling Defendant may contest payment of any Future
response Costs under Paragraph 47 if it determines that the
United States or the State has made an accounting error or if it
alleges that a cost item that is included represents costs which
are inconsistent with the NCP.. Such objection shall be made in
writing within 30 days of receipt of the bill and must be sent to
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-36-
the United States (if the United States' accounting is being
disputed) or the State (if the State's accounting is being
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.
Simultaneously, the Settling Defendant shall establish an
interest bearing escrow account in a bank duly chartered in the
State of North Carolina and remit to that escrow account funds
equivalent to the amount of the contested Future Response Costs.
The Settling Defendant shall send to the United States a copy of
the transmittal letter and check, paying the uncontested Future
Response Costs, and a copy of the correspondence that establishes
and funds the escrow account, including, but not limited to,
information containing the identity of the bank and bank account
under which the escrow account is established as well as a bank
statement showing the initial balance of the escrow account.
Simultaneously with establishment of the escrow account, the
Settling Defendant shall initiate the Dispute Resolution
procedures in Section XX (Dispute Resolution). If the United
States or the State prevails in the dispute, within 10 days of
the resolution of the dispute, the Settling Defendant shall
direct the escrow holder to remit the escrowed monies (with
accrued interest) to the United State in the manner described in
Paragraph 46. 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
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-37-
prevail to the United States in the manner described in Paragraph
46; Settling Defendant shall be disbursed the balance of the
escrow account. The dispute resolution procedures set forth in
this paragraph shall be the exclusive mechanism for resolving
disputes regarding the Settling Defendant's obligation to
reimburse the United States for their Future Response Costs.
49. In the event that the payments required by Paragraph 46
are not made within 30 days of the effective date of this Consent
Dec·ree or the payments required by Paragraph 47 within 30 days of
the Settling Defendant's receipt of the bill, Settling Defendant
shall pay interest on the unpaid balance at the rate established
pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607'. The
interest on Past Response Costs shall begin to accrue 30 days
after the effective date entry of the Consent Decree. The
interest on Future Response Costs shall begin to accrue.JO days
after the Settling Defendant's receipt of the bill. Payments
made under this paragraph shall be in addition to such other
remedies or sanctions available to Plaintiffs by virtue of
Settling Defendant's failure to make timely payments under this
Section.
XVII. INDEMNIFICATION AND INSURANCE
50. The United States does not assume any liability by
entering into this agreement or by virtue of any designation of
Settling Defendant as EPA's authorized representatives under
Section 104(e) of CERCLA. Settling_Defendant shall indemnify,
save and hold harmless the United States, and its officials,
agents, employees, contractors, subcontractors, or
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-38-
representatives for or from any and all claims or causes of
action or costs incurred by the United States including, but not
limited to, attorneys fees, and other expenses of litigation and
settlement arising from, or on account of, acts or omissions of
Settling Defendant its officers, directors, employees, agents,
contractors, subcontractors, and any persons acting on its behalf
or under its control, in carrying out activities pursuant to this
Consent Decree, including, but not limited to, any claims arising
from any designation of Settling Defendant as EPA's authorized
representative under Section 104(e) of CERCLA. The United States
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 considered an agent of the
United States.
51. Settling Defendant waives, and shall indemnify and hold
harmless the United States with respect to, any claims for
damages or reimbursement from the United States or for set-off of
any payments made or to be made to the United States arising from
or on account of any contract, agreement, or arrangement between
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.
52. No later than 25 days after the effective date of this
Consent Decree, Settling Defendant shall secure, and shall
maintain until the first anniversary of EPA's Certification of
Completion of the Response Actions pursuant to Paragraph 42.b.
I
I
I
I
I
I
I
I
•
I
u
H
I
u
D
D
D
I
m
-39-
of Section XIV. (Certification of Completion) comprehensive
general liability and automobile insurance with limits of 1
million dollar, combined single limit naming as insured the
United States. In addition, for the duration of this Consent
Decree, Settling Defendant shall satisfy, or shall ensure that
its contractors or subcontractors satisfy all applicable laws and
regulations regarding the provision of worker's compensation
insurance for all persons performing the Work on behalf of
Settling Defendant in furtherance of this Consent Decree. Prior
to commencement of the Work under this Consent Decree, Settling
Defendant shall provide to EPA and the State certificates of such
insurance and a copy of each insurance policy. Settling
Defendant shall resubmit such certificates and copies of policies
ea~h year on the anniversary of the effective date of this
Consent Decree. If Settling Defendant demonstrates by evidence
satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or
insurance covering the same risks but in a lesser amount, then,
with respect to that contractor or subcontractor, Settling
Defendant need provide only that portion of the insurance
described above which is not maintained by the contractor or
subcontractor.
XIX. FORCE MAJEURE
53. "Force majeure," for purposes of this Consent Decree, is
defined as any event arising from causes beyond the control of
the Settling Defendant or of any entity controlled by Settling
Defendant, including, but not limited to, its contractors and
l
I
I
I
I
I
I
I
I
I
•
I
I
I
n
I
I
I
D
0
-40-
subcontractors, that delays or prevents the performance of any
obligation under this Consent Decree despite Settling Defendant's
best efforts to fulfill the obligation. The requirement that the
Settling Defendant exercise."best efforts to fulfill the
obligation. The requirement that the Settling Defendant exercise
"best efforts to fulfill the obligation" includes using best
efforts to anticipate any potential force majeure event and best
efforts to address the effects of any potential force majeure
event (1) as it is occurring and (2) following the potential
force majeure event such that the delay is minimized to the
greatest extent possible. "Force Majeure" does not include
financial inability to complete the Work.
54. If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Decree, whether
or not caused by a force majeure event, the Settling Defendant
shall notify by telephone EPA's Project Coordinator or, in his
or her absence, EPA's Alternate Project Coordinator or, in the
event both of EPA's designated representatives are unavailable,
the Director of the Hazardous Waste Management Division, EPA
Region IV, within 48, hours of when Settling Defendant first know
or should have known that the event might cause delay. Within 7
working days thereafter, Settling Defendant shall provide in
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; the Settling Defendant's
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-41-
rationale for attributing such delay to a force majeure event if
it intends to assert such a claim; and a statement as to whether,
in t~e opinion of the Settling Defendant, such event may cause or
contribute to an endangerment to public health, welfare or the
environment. The Settling Defendant shall include with any
notice all available documentation supporting its claim that the
delay was attributable to a force majeure. Failure to comply
with the above requirements shall preclude Settling Defendant
from asserting any claim of force majeure. Settling Defendant
shall be deemed to have notice of any circumstance of which its
contractor or subcontractor had or should have had notice.
55. If EPA agrees that the delay or anticipated delay is
attributable to a force majeure event, the time for performance
of the obligation under this Consent Decree that is affected by
the force majeure event shall be extended by written agreement of
EPA and the Settling Defendant for such time as is necessary to
complete those obligations affected by the force majeure event.
A force Majeure event shall not, of itself extend the time for
performance of any subsequent obligation. Fail1,1re to comply with
the above requirements shall preclude Settling Defendant from
assorting any force majeure claim.
56. If EPA does not agree that the delay or anticipated
delay has been or will be caused by a force majeure event, or if
EPA and the Settling Defendant do not agree on the length of the
extension for performance of the obligations affected by a force
majeure event, EPA shall notify the Settling Defendant in writing
of its decision concerning whether the delay is attributable to a
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
m
I
m
-42-
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 XX (Dispute
Resolution), it shall do so no later than 15 days after receipt
of EPA's notice. In any such proceeding, Settling Defendant
shall have the burden of demonstrating by a preponderance of the
evidence that the delay or anticipated delay has been or will be
caused by a force majeure event, that the duration of the delay
was or will be warranted under the circumstances, that best
efforts were exercised to avoid and mitigate the effects of the
delay, and that Settling Defendant complied with the requirements
of Paragraphs 53 and 54, above. 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
57. Unless otherwise exp.ressly provided for in this Consent
Decree, the dispute resolution procedures of this Section shall
be the exclusive mechanism to resolve disputes arising under or
with respect to this Consent Decree and shall apply to all
provisions of this Consent Decree.
58. Any dispute which arises under or with respect to this
Consent Decree shall in the first instance be the subject of
informal negotiations between EPA and the Settling Defendant.
The period for informal negotiations shall not exceed 20 days
from the time the dispute arises, unless it is extended by
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
g
-43-
agreement of the Parties to the dispute. The dispute shall be
considered to have arisen when one party notified the other
parties in writing that there is a dispute.
59. In the event that the parties cannot resolve a dispute
by informal negotiations under the preceding paragraph, then the
position advanced by EPA shall be considered binding unless,
within 10 days after the conclusion of the informal negotiation
period, Settling Defendant invokes the formal dispute resolution
procedures of this Section by serving on the United States and
the State a written statement of position on the matter in
dispute, including, but not limited to, any data, analysis or
, opinion supporting that position and any documentation relied
upon by the Settling Defendant.
60. Formal dispute resolution for disputes pertaining to the
selection or adequacy of any response action and all other
disputes which are accorded review on the administrative record
under applicable principles of administrative law shall be
conducted pursuant to the procedures set forth in this
paragraph. For purposes of this Paragraph, the adequacy of any
response action includes: (1) the adequacy or appropriateness of
plans, procedures to implement plans, or any other items
requiring approval by EPA under this Consent Decree; and (2) the
adequacy of response actions performed pursuant to this Consent
Decree. Nothing herein shall be construed to allow any dispute
by Settling Defend.ant regarding the ROD.
a. The administrative record of the dispute shall be
maintained by EPA and so shall all statements of position,
I
I·
I
I
I
I
I
I
I
I
g
n
D
D
D
D
I
I
I
-44-
including supporting documentation, submitted pursuant to this
Paragraph and Paragraph 59.
b. After receipt of Settling Defendant's statement of
position submitted pursuant to Paragraph 59. EPA shall serve on
Settling Defendant its statement of position, including, but not
limited to, any factual data analysis, or opinion supporting that
position and all supporting documentation relied upon by EPA, in
response to Settling Defendant's Statement of Position. Where
appropriate, EPA may allow submission of supplemental statements
of position by the Parties to the dispute.
c. The Director of the waste Management Division, EPA
Region IV, shall issue a final administrative decision resolving
the dispute which shall be based on the Administrative Record.
This decision shall be binding upon the Settling Defendant
subject only to the right to seek judicial review pursuant to
piragraphs 60.d. and 60.e.
d. Any administrative decision by EPA pursuant to
Paragraph 59.c. shall be reviewable by this Court, provided that
a notice of judicial appeal is filed by the Settling Defendant
with the Court and served on all Parties within 10 days of
receipt of EPA's decision. The notice of judicial appeal shall
include a description of the matter in dispute, the efforts made
by the Parties to resolve it, the relief requested and the
schedule, if any, within which the dispute must be resolved to
ensure orderly implementation of this Consent Decree. The United
I
I
I
I
I
I
D
m
•
I
I
II
I
I
I
I
I
I
I
-45-
States may file a response to Settling Defendant's notice of
judicial appeal.
e. In proceedings on any dispute pertaining to the
selection or adequacy of any response action or any other dispute
which is accorded review on the administrative record under
applicable principles of administrative law, Settling Defendant
shall have the burden of demonstrating that the decision of the
Waste Management Division Director is arbitrary and capricious or
otherwise not in accordance with law. Judicial review of EPA's
decision shall be on the administrative record compiled pursuant
to Paragraphs 60.a; and 60.b .
61. Formal dispute resolution for disputes not pertaining to
the selection or adequacy of any response action or which are not
otherwise accorded review on the administrative record under
applicable principles of administrative law, shall be governed by
this paragraph.
a. Following receipt of Settling Defendant's statement
of position submitted pursuant to Paragraph 64, the Waste
Management Division Director shall issue a final decision
resolving the dispute. The Waste Management Division Director's
decision shall be binding on the Settling Defendant unless,
within 10 days of receipt of the decision, the Settling Defendant
files with the Court and serves on all Parties a notice of
judicial appeal setting forth the matter in dispute, the efforts
made by the Parties to resolve it, the relief requested and the
schedule, if any, w:ithin which the dispute must be resolved to
ensure orderly implementation of the Consent Decree. A copy of
I
I
I
I
I
I
I
I
I
I
I
I
m
I
I
I
I
I
m
-46-
the notice shall be served on the United States prior to or
contemporaneously with the filing of the notice with the Court.
The United States may file a response to Settling Defendant's
notice of judicial appeal.
b. Judicial review of any dispute which does not
pertain to the selection or adequacy of any response action shall
be governed by applicable provisions of law. In any such
proceeding, the Settling Defendant shall bear the burden of
coming forward with evidence and the burden of persuasion on
factual issues.
62. Notwithstanding the invocation of the procedures stated
in this Section, Settling Defendant shall continue to perform its
obligations under this Consent Decree, including those that are
not disputed or not substantially affected by the disputed issue.
XXI. STIPULATED PENALTIES
63. Settling Defendant shall be liable for stipulated
penalties in the amounts set forth in Paragraph 64 to the United
States and the State for failure to comply with the requirements
of this Consent Decree, unless excused under Section XIX (Force
Majeure). "Compliance" by Settling Defendant shall include
completion of the activities under this Consent Decree or any
work plan or other plan approved under this Consent Decree
identified· below• in accordance with all applicable requirements
of law, this Consent Decree, the SOW, and any plans or other
documents approved by EPA pursuant to this Consent Decree and
within the specified time schedules established and approved
under this Consent Decree.
I· -47-
I
I
I
I
I
I
D
u
D
m
I
I
I
I
I
64. The following stipulated penalties shall be payable per
violation per day to the United States for any noncompliance as
described in paragraph 63 above:
Penalty Per Violation
Per Da
$2,500
$5,000
$10,000
Period of Noncompliance
1st thru 14th day
15th thru 30th day
31st day & beyond
The following stipulated penalties shall be payable per
violation per day to the United States and the State for failure
to submit timely or adequate periodic reports pursuant to
Section XI paragraph 30:
Penalty Per Violation
Per Da
$500
SL ooo
$2,500
Period of Noncompliance
1st thru 14th day
15th thru 30th day
31st day & beyond
65. In the event that EPA assumes performance of a portion
or all the Work pursuant to Section XXII (Covenant Not to Sue by
Plaintiffs), Settling Defendant shall be liable for a stipulated
penalty in the amount of $100,000.
66. All penalties shall begin to accrue on the day after
the complete performance is due or the day a violation occurs,
and shall continue to accrue through the final day of the
correction of the noncompliance or completion of the activity.
Nothing herein shall prevent the simultan~ous accrual of
separate penalties for separate violations of this Consent
Decree.
I
I·
I
I
I
I
I
I
n
D
n
m
m
•
I
I
I
I
I
-48-
67. Following EPA's determination that Settling Defendant
has failed to comply with a requirement of this Consent Decree,
EPA shall give Settling Defendant written notification of the
same and describe the noncompliance. This notice shall also
indicate the amount of penalties due and whether the penalties
are continuing to accrue. However, penalties shall accrue as
provided in the preceeding paragraph regardless of whether EPA
has notified the Settling Defendants of a violation.
68. All penalties owed to the United States under this
Section shall be due and payable within 30 days of the Settling
Defendant's receipt from EPA of a notification of noncompliance,
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 shall
reference 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).
69. Neither the invocation of dispute resolution procedures
under Section XX (Dispute Resolution) nor the payment of
J penalties shall alter in any way Settling Defendant's obligation
to complete the performance of the Work required under this
Consent Decree.
70. Penalties shall continue to accrue as provided in
I
I
I
I
I
I
I
I
n
D
m
I
I
I
I
I
I
I
I
-49-
Paragraph 66 during any dispute resolution period, but need not
be paid until the following:
a. If the dispute is resolved by agreement or by
decision or order of EPA which is not appealed to this Court,
accrued 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
United States prevails in whole or in part, Settling Defendant
shall pay all accrued penalties that the Court determines are
owed to EPA within 15 days of receipt of the Court's decision or
order, except as provided in subparagraph C below;
c. If the District Court's decision is appealed by any
party, Settling Defendant.shall pay all accrued penalties into
an interest-bearing escrow account within 15 days of receipt of
the Court's decision or order. ·Penalties shall be paid into
this account as they continue to accrue, at least every 60
days. Within 15 days of receipt of the appellate court
decision, the escrow agent shall pay the balance of the account.
to EPA or to Settling Defendant to the extent that it prevails.
71. If Settling Defendant fails to pay stipulated penalties
when due, the United States may institute proceedings to collect
the penalties, as well as late charges and interest. Settling
Defendant shall pay interest on the unpaid balance, which shall
begin to accrue at the end of the thirty-day period at the rate
established pursuant to Section 107(a) of CERCLA, 42 u.s.c.
§9607. However, nothing in this section shall be construed as
prohibiting, altering, or in any way limiting
I
I
I
I
I
I
I
I
n
D
D
m
I
I
I
I
I
I
I
-.50-
the ability of Plaintiffs to seek any other remedies or
sanctions available by virtue of Settling Defendant's violation
of this Decree or of the statutes and regulations upon which it
is based, including, but not limited to, penalties pursuant to
Sec.tion 122(1) of CERCLA.
72. No payments made under this Section shall be tax
deductible for Federal tax purposes.
XXII. COVENANTS NOT TO SUE BY PLAINTIFFS
73. 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 74, 75, and 77 of this
Section, the United States covenants not to sue or t6 take
administrative action against Settling Defendant pursuant to
Sections 106 and 107(a) of CERCLA and Section 7003 of RCRA for
performance of the Work and for Recovery of Past Response Costs
and Future Response Costs. These covenants not to sue shall take
effect upon the receipt by EPA of the payments required by
Section XVII (Reimbursement of Response Costs). These covenants
not to sue are conditioned upon the complete and satisfactory
performance by Settling Defendant of its obligations under this
Consent Decree. These covenants not to sue extend only to the
Settling Defendant and do not extend to any other person.
74. United States' Pre-certification reservations.
Notwithstanding any other provision of this Consent
I
I
I
I
I
I
I
D
I
I
I
I
I
I
-51-
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 the Site or (2)
to reimburse the United States for additional costs of response
if, prior to certification of completion of the Response
Actions:
(i) conditions at the Site, previously unknown to the United States, are discovered after the entry of this Consent Decree, or
(ii) information is received, in whole or part, after the entry of this Consent Decree,
and these previously unknown conditions or this information
together with any other relevant information indicates that the
Response Actions are not protective of human health and the
environment.
75. United States' Post-certification Reservations.
Nothwithstanding any other provision of this Consent Decree,
the United States reserves the right to institute proceedings in
this action, or to issue an administrative offer seeking to
compel Settling Defendant (1) to perform additional response
actions relating to the Site or (2) to reimburse the United
States for additional costs of response if, subsequent to
certification of completion of the Response Actions:
(i) conditions at the Site, previously unknown to the United States, are discovered after the certification of completion, or
(ii) information is received, in whole or in part, after the certification of completion,
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
D
u
-52-
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.
76. For purposes of Paragraph 74, the information
previously received by and the conditions known to the United
States shall include only that information and those conditions
set forth in the Record of Decision for the Site and the
administrative record supporting the Record of Decision. For
purposes of Paragraph 75, the information prev_iously received by
and the conditions known to the United States shall include only
that information and those conditions set forth in the Record of
Decision, and any information received by the United States
pursuant to the requirements of this Consent Decree prior to
Certification of the Remedial Action.
77. General reservations of rights. The covenants not to
sue set forth above do not pertain to any matters other than
those expressly specified in Paragraph 73. The United States
reserves, and this Consent Decree is without prejustice to, all
rights against Settling Defendants with respect to all other
matters, including but not limited to, the following:
(1) claims based on a failure by Settling Defendants
to meet a requirement of this Consent Decree;
(2) liability arising from the past, present or future
disposal, release, or threat of release of waste Materials
outside of the Site:
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
-53-
(3) liability for damages for injury to, destruction
of, or loss of natural resources;
(4) liability for response costs that have been or may
be incurred by all federal agencies which are trustees for
natural resources and which have, or may in the he future, spend
funds-relating to the Site;
(5) criminal liability;
(6) liability for violations of federal or state law
which occur during or after implementation of the Remedial
Action; and
(7) previously incurred costs of response above the
amounts reimbursed pursuant to Paragraph 46;
(8) liability for additional operable units at the Site
or the final response action;
(9) liability for costs that the United States will
incur related to the Site but are not within the definition of
Future Response Costs.
78. 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 capricious or otherwise not in
accordance with law. Such dispute shall be resolved on the
administrative record. Costs incurred by the United States in
I
I
I
I
I
I
I
I
I
I
I
I
I
n
0
D
I
m
I
-54-
performing the Work pursuant to this Paragraph shall be
considered Future Response Costs for the purposes of Section
XVII (Reimbursement of Response Costs).
79. Nothwithstanding any other provision of this Consent
Decree, the United States and the State retain all authority and
reserve all rights to take any and all response action
authorized by law.
XXIII. COVENANTS BY SETTLING DEFENDANT
80. Settling Defendant hereby covenants not to sue and
agrees not to assert any claims or causes of action against the'
United States or the State related to or arising from any
response action taken with respect to the Sitei or this Consent
Decree,. including, but not limited to, any direct or indirect
claim for reimbursement from the Hazardous Substance Superfund
(established pursuant to the Internal Revenue Code, 26 u.s.c.
§ 9507) through CERCLA Sections 106(b)(2), 111 or 112 or any
other provision of law, or to seek any other costs, damages or
attorneys fees from the United States or the State arising out
of response activities 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_. § 9611,
or 40 C.F.R. § 300.25(d).
XXIV. EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION
81. With regard to claims for contribution against Settling
Defendants for matters addressed in this Consent Decree, the
Parties hereto agree that the. Settling Defendants are entitled,
to such protection from contribution actions or claims as is
I
I
I
I
I
I
I
I
I
I
a
u
n
m
m
•
I
I
I
-55-
provided by CERCLA Section 113(f)(2), 42 U.S.C. § 9613(f)(2).
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 and 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 within 10 days of service of
the complaint on them.
83. In any subsequent administrative or judicial proceeding
initiated by the 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
that the claims raised by the United States or the State in the
subsequent proceeding were or should have been brought in the
instant case; provided, however, that nothing in this Paragraph
affects the enforceability of the covenants not to sue set forth
in Section XXII (Covenants Not to Sue by Plaintiffs).
XXV. ACCESS TO INFORMATION
84. Settling Defendant shall provide to EPA and the State,
upon request, copi·es of all documents and information within its
possession or control or that. of its contractors or agent
relating to activities at the Site or to the implementation of
I
I
I
I
I
I
I
I
I
I
I
I
I
u
I
u
E
m
I
'
-56-
this Consent Decree, including, but not limited to, samp'ling,
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 shall also make available to EPA and the State, for
purposes of investigation, information gathering, or testimony,
its employees, agents, or representatives_ with knowledge of
relevant facts concerning the performance of the Work.
85. a. Settling Defendant may assert business
confidentiality claims covering part or all of the documents or
information submitted to Plaintiffs under this consent Decree to
the extent permitted by and in accordance with Section 104(e)(7)
of CERCLA, 2 u~s.c. § 9604(e)(7), and 40 C.F.R. § 2.203(b).
Documents or information determined to be confidential by EPA
will be afforded the protection specified in 40 C.F.R. part 2,
Subpart b. If no claim of confidentiality accompanies documents
or information when they are submitted to EPA and the State, or
if EPA has notified Settling Defendant that the documents or
information are not confidential under the standards of
Sectionl04(e)(7) of CERCLA, the public may be given access to
such documents or information without further notice to Settling
Defendant.
b. The Settling Defendant may assert that certain
documents, records and other information are privileged under
the attorney-client privilege or any other privilege recognized
by ederal law. If the Settling Defendant asserts such a
privilege, they shall provide the Plaintiffs with the
following:
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
•
-57-
(1) the title of the document, record, or information; (2) the
date of the document, record, or information; (3) the name and
title of the author of the document, record, or information; (4)
the name and title of each addressee and recipient; (5) a
description of the contents of the document, record, or
information: and (6) the privilege asserted by Settling
Defendant. However, no documents, reports or other information
created or generated pursuant to the requirements of the Consent
Decree shall be with held on the grounds that they are
privileged.
86.. No claim of confidentiality shall be made wit_h respect
to any data, including, but not·limited to, all sampling,
analytical, monitoring, hydrogeologic, scientific, chemical, or
engineering data and materials or information submitted pursuant
to this Consent Decree, or any other documents or information
evidencing conditions at or around 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 possession or
control or which come into its possession or control that relate
in any manner to the performance of the Work or liability of the
Settling Defendant for response actions conducted and to be
conducted at the Site, regardless of any corporate retention
policy to the contrary. Until 10 years after the Settling
Defendant's receipt of EPA's notification pursuant to Paragraph
42 of Section XV. (Certification of Completion), Settling
I
I
I
I
I
I
I
I
I
g
u
B
D
m
I
I
I
I
I
-58-
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 or
documents, and, upon request by the United States or the State,
Settling Defendant shall deliver any such records or 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 privi_lege
recognized by federal law.· However, all documents, records or
information created, generated or collected pursuant to the
terms of the Consent Decree shall not be withheld on the-grounds
that they are privileged.
88. In any subsequent administrative or judicial proceeding
initiated by the United States for injunctive relief, recovery
of response costs, or other appropriate relief relating to the
Site, Settling Defendant(s] 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 defense based upon any contention that
the claims raised by the United States in the subsequent
proceeding were or should have been brought in the instant case
provided, however,·that nothing in this Paragraph affects the
enforceability of the covenants not to sue set forth in Section
XXII (Covenants Not to Sue by Plaintiffs).
I
I
I
I
I
I
I
I
I
I
-1
I
u
B
I
m
I
I
-59-
89. 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 Site since
notification of potential liability by the United States 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,
XXVII, NOTICES AND SUBMISSIONS
90. 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 to
the 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
I
I
I
I
I
I
I
I
I
I
I
D
D
1,
I
I
-60-
Donald J. Guinyard
Director, Waste Management Division United States Environmental Protection 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
As to the State:
William Myer, Director
Solid Waste 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 Chemical Company 10 Finderne Avenue
P.O. Box 6500
Bridgewater, New Jersey 08807
XXVIII. EFFECTIVE DATE
92. 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.
XXIX. RETENTION OF JURISDICTION
93. This Court retains jurisdiction over both the subject
matter of this Consent Decree and the Settling Defendant for the
duration of the performance of the terms and provisions_ of this
Consent Decree for the purpose of enabling any of the Parties to
I
I
I
I
I
I
I
I
I
I
g
n
D
I
fl
m
I
I
I
•
-61-
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.
XXX. APPENDICES
94. The following appendices are attached to and
incorporated into this Consent Decree:_
"Appendix A" is the ROD.
"Appendix B" is the SOW.
XXXI. COMMUNITY RELATIONS
95. Settling Defendant shall prepare and submit to EPA and
the State a community relations plan describing the activities
the Settling Defendant will undertake to disseminate
information regarding the Work to the public. Upon its
approval by EPA, after a reasonable opportunity for review and
comment by the State, 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
96. No modification shall be made to this Consent Decree
without written notification to and written approval of the
I
I
I
I
I
I
I
I
I
I
g
D
D
E
I
I
I
I
I
-62-
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.
97. 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
shall 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
modification, and the Settling Defendant. No oral modification
of this Consent Decree shall be effective.
98. Nothing in this paragraph shall be deemed to alter the
Court's power to supervise or modify this Consent Decree.
XXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
99. This Consent Decree shall be lodged with the Court for
a period of not less than thirty (30) days for public notice
and comment in accordance with Section 122(d)(2) of CERCLA, 42
u.s.c. § 9622(d)(2), and 28 c.F.R. § 50.7. The United States
reserves the right to withdraw or withhold its consent if the
comments regarding the Consent Decree disclose facts or
considerations which indicate that the Consent Decree is
inappropriate, improper, or inadequate. Settling Defendant
i
•
I
I
I
I
I
I
I
I
I
u
D
I
I
I
I
I
I
I
I
-63-
consents to the entry of this Consent Decree without further
notice.
XXXIV. SIGNATORIES
100. Each undersigned representative of the Settling
Defendant to this Consent Decree and the Assistant Attorney
General for Environment and Natural Resources of the Department
of Justice certifies that he or she is fully authorized to
enter into the terms and conditions of this Consent Decree and
to execute and legally bind such party to this document.
101. The Settling Defendant hereby agrees not to oppose
entry of this Consent Decree by this Court or challenge any
provision of this Consent Decree unless the United States has
notified the Settling Defendant in writing that it no longer
supports entry of the Consent Decree.
102. The Settling Defendant shall identify, on the attached
signature page, the name and address of any agent who is
authorized to accept.service of proves by mail on behalf of
that party with respect to all matters arising under or
relating to this Consent Decree. Settling Defendant hereby
agrees to accept service in that manner and to waive the formal
service requirements set forth in Rule 4 of the Federal Rules
of Civil Procedure, including, but not limited to, service of a
summons, and any applicable local rule of this Court.
SO ORDERED THIS _____ DAY OF ________ , 1991.
United States District Judge
I
I
I
I
I
I
I
I
I
I
I
H
n
D
I
I
I
I
-64-
THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. National Starch & Chemical Company,
relating to the National Starch Superfund Site.
Date:
FOR THE UNITED STATES OF AMERICA
by:
Barry Hartmann
Acting Assistant Attorney General
Environment and Natural
Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Quentin C. Pair
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington D.C. 20530
( 202) 514-1999
John M. Jones
U.S. Attorney
Assistant United States Attorney
western District of North Carolina
U.S. Department of Justice
Charles Qe Saillan
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 30365
I
I
I
I
I
I
I
I
I
g
u
D
I
I
I
I
-65-
Richard S. Leahy ._
Assistant Regional Counsel U.S.
Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
[phone]
John Barker
Regional Counsel U.S.
Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Ga 30365
I
I·
I
I
I
I
I
I
I
I
I
I
I
D
I
m
I
I
I
-66-
THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. National Starch & Chemical Company.
relating to the National Starch Superfund Site.
Date: ____________ _
FOR THE STATE OF NORTH CAROLINA
William Myer, Director
Solid Waste Management
Section
Dept. of Environmental Health
& Natural Resources
P.O. Box 27687
Raleigh, North Carolina 27611
I
I .
I
I
I
I
I
I
I
I
g
D
D
D
I
I
I
C
-67-
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter
of United States v. National Starch Chemical Company.
relating to the National Starch & Chemical Company Superfund Site.
FOR NATIONAL STARCH & CHEMICAL CORPORATION
Date: __________ _
Alex Samson
Counsel, Regulatory Affairs
National Starch & Chemical
Company
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
I·
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
n
n
0
SCOPE OF WORK FOR THE
REMEDIAL DESIGN AND REMEDIAL ACTION
AT THE NATIONAL STARCH & CHEMICAL COMPANY SITE
OPERABLE UNIT 2
INTRODUCTION
The purpose of this Remedial Design/Remedial Action (RD/RA) is
to conduct 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 f_inal 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
Response-Directive 9355.0-4A, June 1986) (the "RD/RA Guidance"),
and other guidances used by EPA in conducting an RD/RA (a list
of the 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
activities. 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
responsibility 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
ultimate adequacy of such task or deliverable. A summary of the
major deliverables that Settling Defendant shall submit for the
response actions is attached.
I-
I
I
I
I
I
I
ii
D
D
D
E
I
I
I
I
2
TASK I -SCOPING
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.
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.
2. Review of relevant guidance (see attached references) to
understand the RD/RA process. This information shall be used in
performing the RD/RA and preparing all deliverables under this sow.
3. Collection of additional data, as required. This includes
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
subsurface soils.
4. Preparation of a detailed sampling plan necessary to conduct
the response actions.
5. Actual implementation of the selected remedy, i.e. deed
and/or access restrictions, etc., necessary to implement the
selected remedy.
6. Maintenance of the facilities necessary to implement the
selected remedy, as required.
I·
I
I
I
I
I
g
D
I
I
I
I
I
I
I
I
I
3
7. Performance 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 review 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 performed by the
Settling Defendant as a function of the project scoping process.
A. Site Background
The Settling Defendant shall gather and analyze the existing
information regarding the Site and shall conduct a visit to the
Site to assist in planning the scope of the RD/RA as follows:
1. 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
information shall be utilized in determining 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.
I·
I
I
I
I
I
I
D
D
4
2 . Conduct Site Visit
The Settling Defendant shall conduct a visit to the Site
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
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.
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.
to
I A. Remedial Design Planning
I
I
I
I
I
I
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,
The Work Plan and Sampling and Analysis Plan must be reviewed
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-approved
design management schedule contained therein. Such
I·
I
I
I
I
I
D
D
I
I
I
I
I
I
I
5
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 design 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 submission 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 environmental media at the Site.
I-
I
I
I
I
n
D
D
I
I
I
I
I
I
I
I
2 .
c.
d.
6
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 description 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
deliverable required by this Consent Decree,
including those in this SOW. This schedule shall
also include information regarding timing,
initiation and completion of all critical path
milestones for each activity and/or deliverable.
e. 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 track~ng, storing, and retrieving the
data along with identifying software to be used,
minimum data requirements, data format and backup
data management. The plan shall address both data
management and document control for all activities
conducted during the RD/RA.
f. A description of the community relations support
activities to be conducted during the RD. At
EPA's request, it is expected that the Settling
Defendant will assist EPA in preparing and
disseminating information 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
Health and Safety Plan shall include a health and safety
risk analysis, a description of monitoring and personal
protective equipment, medical monitoring, and site control.
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 the plan
provides for the protection of human health and the
environment ..
I·
I
I
I
g
n
D
I
I
I
I
I
I
I
I
7
3 • Sampling and Analysis Plan
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 sampling 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
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 objectives 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
Standard Operating Procedures and Quality Assurance Manual.
The Settling Defendant shall demonstrate, in advance and to
EPA's satisfaction, that each laboratory it may use is
qualified to 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 analysis.
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 Contract Laboratory Program (CLP) and
may require laboratory analysis of performance samples
(blank and/or spike samples) in sufficient number to
determine the capabilities of the laboratory. If a
I
I
I
n
D
D
I
I
I
I
I
I
I
8
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 preliminary project completion, the Settling Defendant
shall prepare and submit a Response Action Report which
certifies that all items contained in the Consent Decree,
including the ROD and this SOW and all incorporated documents
(i.e., work 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
certified by a Professional Engineer or Geologist registered in
the State of North Carolina. The RA Report shall include the
following items:
1.
2 •
3 •
Synopsis of the work defined in the SOW and
certification that this work was performed;
Explanation of modifications made during the response
actions to the original Work Plan and why these changes
were made; and,
All applicable Record Drawings;
After EPA review, Settling Defendant shall address any comments
and submit a revised report. The response actions shall not be
considered complete until EPA approves the Final Report.
I
I
I
I
D
D
D
D
I
I
I
9
TASK IV -PERFORMANCE MONITORING
Performance monitoring shall be conducted_to ensure that the
site objectives for the remedy are met.
A. Remediation Goal Verification Plan
The purpose of the Remediation Goal Verification Plan is to
provide a mechanism to ensure that 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
information required.
2 . ·The Remediation Goal Verification Quality
Assurance/Quality Control plan that describes the
policy, organization, functional activities, and
quality assurance 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.
I
I
I
I
I
n
g
D
u
I
I
I
I
I
I
I
I
10
REFERENCES
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 Remedial Response Activities",
U.S. EPA, Office of Emergency and Remedial Response and
Office of Waste Programs Enforcement, EPA/540/G-87/003,
March 1987, OSWER Directive No. 9335.0-?B.
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.
I
I
I
B
0
D
u
I
I
I
I
I
I
11
11. "Engineering Support Branch Standard Operating Procedures
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 for
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.
15. "Interim Guidance on Compliance with Applicable or Relevant
and Appropriate Requirements", U.S. EPA, Office of Emergency
and Remedial Response, July 9, 1987, OSWER Directive No.
9234.0-05. .
16. "CERCLA Compliance with Other Laws Manual", Two Volumes,
U.S. EPA, Office of Emergency and Remedial Response, August
1988.(Draft), OSWER Directive No. 9234.1-01 and -02.
17. "Guidance on Remedial Actions for Contaminated Ground Water
at Superfund Sites", U.S. EPA, Office of Emergency and
Remedial Response, (Draft), OSWER Directive No. 9283.1-2.
18. "Guide for Conducting Treatability Studies Under CERCLA",-
U.S. EPA, Office of Emergency and Remedial Response,
Pre-publication Version
19. "Health and Safety Requirements of Employees Employed in
Field Activities", U.S. EPA, Office of Emergency and
Remedial Response, July 12, 1981, EPA Order No. 1440.2.
20. "Standard Operating Safety Guides", U.S. EPA, Office of
Emergency and Remedial Response, November 1984.
21. "Standards for General Industry", Federal Register 2 9 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.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
•
12
24. "Occupational Safety and Health Guidance Manual for
Hazardous Waste Site Activities", National Institute of
Occupational Safety and Health/Occupational Health and
Safety Administration/United States Coast
·Guard/Environmental Protection Agency, October 1985.
25. "TLVs -Threshold Limit Values and Biological Exposure
Indices for 1987-88", American Conference of Governmental
Industrial Hygienists.
26. "American National Standards ]:'ractices 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. 9320.2-3A.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
13
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