NCD991278953_19930913_National Starch & Chemical Corp._FRBCERCLA RA_Remedial Design Remedial Action OU-2 1990 - 1993-OCR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA, GEORGIA 30365
SEP 13 1993
4WD-NCRS
Mr. Alex Samson
National Starch & Chemical Company
10 Finderne Avenue
Bridgewater, New Jersey 08807
I (t l :t~'ff tU
SEP 1 ;_, 1~~!
~UPERfllNl"l SEtTION
, .. RE:
.... 'u
~-f!JJ?fil . h Comments on the Quarterly Report forte Second Quarter for
1993 for (.O~J5reunit-s) #1 andQ/:2Jfor the National Starch &
Chemical Company Superfund Site
Dear Mr. Samson:
The Agency received five bound and one unbound. copies of the
document referenced above on July 19, 1993. I shared copies of
this report with the State of North Carolina Department of
Environment, Health & Natural Resources and Winston Smith, EPA-
Ground-Water Technology Unit. Below·are comments contrived as a
result of our review of this docu..rnent. I am sharing these comments
with you in the hope that our concerns will be addressed in future
Quarterly Reports. I am not requesting that National Starch &
Chemical Company (NSCC) or IT Corporation (IT) revise the July J.6,
1993 Quarterly Report for the Second Quarter for 1993 for Operable
Uni ts # 1 and dt2 documen':..
1. Page 1, first paragraph: A sentence should be added-to this
paragraph stating that the samples were collected in
accordance to EPA, Region IV protocols (i.e., in accordance
to the procedures specified in the Environnental Compliance
Branch Standard Operatina Procedures and Quality Assurance
Manual, dated February 1, 1991 (EPA, Region 4, SOP)). This
is assuming that the sa'!lples were collec':.ed in accordance to
these procedures. If they were not, they will be in the
future.
2. Page 1, first paragraph: A phrase or sentence should be added
to th5_s pc.ragraph stating how long extraction wells EXOl and
EX04 have been off-line prior to the samples being
collected.
i_
Printed on Recycled Paper
• •
-2-
3. Page 2, first paragraph: This paragraph needs to be expanded
to included a discussion on the efficiency/adequacy of the
groundwater extraction system (i.e., is the plume being
capture?). I realize that this may not have been possible
in this report since extraction wells EXOl and EX04 are
currently not in operation.
4. Page 2, second paragraph: What was done to remove the "black
substance" from the extraction wells? Was any maintenance
procedures implemented to prevent the build of t.his "black
substance" in the extraction wells in the future? Was this
"blac:.C substance" analyzed to confirm that is iron and
manganese precipitates? If not, why not? Would not this
information help is developing some type of maintenar:ce
proce(_'.:,:.::e? ·
5. Page 2, third paragraph:
incorpo.'.!:'at.:_~.g language
pc.ragrap:t.
Refer to comment number 1 about
about sampling prctocols i:i this
6. ?age 2, ':5.:~th paragraph: This paragraph needs to me.r.e SO::!'.e
effort in comparing the results of the second ouar':er
sa.1TipJ_:,_ng results to the fi:.-::-st quarter sa.n\91.5-ng res'..~:Lt.s a.s
we.s done in the last paragraph on page 1.
As stated above, I. am not requiring a revised document. The above
comments can be addressed in next Quarterly Report.
If you have e.ny questions, please feel free to call me at (404)347-
7791.
Sincerely yo1.1rs,
Jon K. Sor1:.:lo!m
Remedj_c.l :?:i:-ojec:~ Y.:2.:1.ager
cc: Han:< Grc.uli_c:l, NSCC
Bruce Nicholson, NCDE~NR
Ray Pare.d.owski, NSCC
Kitt.ybeJ.le Rivera, EPA
Winston Smith, EPA
Mic~ael St1.1rC.evant:, IT
I
• UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MAR 3 1993
4WD-NSRB
Alex Samson
National Starch & Chemical Company
10 Finderne Averiue
Bridgewater, New Jersey 08807
Re: National Starch & Chemical Company
Salisbury, North Carolina
Operable Unit 2
Dear Mr. Samson:
RECEIVED
MAR 8 1993
SUPBmlND SECTION
Site
, ..
I
The enclosed comments are provided for incorporation into the
Remedial Design/Performance Monitoring Work Plan, Operable Unit 2.
A written response to these comments is due no later than March 18,
1993; final revised document is due no later than March 23, 1993.
Please do not hesitate
concerning this letter.
number 404/347-1695.
to contact me if you have any questions
I can be contacted at 404/347-7791 or fax
IJ• ti~
Barbara H. Benoy '
Remedial Project Manager
Waste Management Division
cc: D. Harbin, ORC
W. Smith, WD
R. Paradowski, NSCC
J. Cole, CDM
B. Nicholson, NCDEHNR ✓
H. Graulich, NSCC
M. Sturdevant, IT
Printed on Recycled Paper
• •
National Starch & Chemical Company Site
Salisbury, North Carolina
Operable Unit 2
Page 2
All field work will be conducted in accordance with the
Environmental Compliance Branch Standard Operating Procedures and
Quality Assurance Manual, (Region IV SOP), February 1, 1991. In
the event of conflict between the work plan and the Region IV SOP
occur, the Region IV SOP shall control.
Section 3.2, page 3-2, first full paragraph
Reword the first sentence to state that the trench area soils will
be monitored by the collection and analysis of groundwater samples.
The groundwater approach was a joint decision between EPA and
NSCC/IT on the best way to meet the ROD requirement of monitoring
the trench area soils.
Section 3.3, Sampling & Analysis Plan, QAPP
The analytical requirements for the performance monitoring samples
will include the following:
Initial sampling event -volatile organic compounds,
-semi-volatile organic compounds,
-metals.
This shall be done to establish the baseline of all
contaminants of concern at start of the monitoring
program.
Quarterly monitoring -volatile organic compounds, EPA will
allow semi-volatile and metals
included at less frequent
intervals, [e.g., semi-annually
for first year, annually for
second year, periodically for
Section 4.2.1 the five-year intervals].
The progress and sampling report generated quarterly shall be
incorporated into the existing monthly report submitted to EPA.
This monthly report addresses all three operable units.
Table 4-1 and related schedule information
This Table shall be modified to reflect the current time, and shall
begin with the initial quarterly sampling to be conducted no later
than second quarter of 1993, (April, May or June).
Section 4.2.3
The sentences "Any U.S. EPA comment changes to the Work Plan.shall
be submitted within 30 days of receipt," and "U.S. EPA approval of
changes to the Work Plan shall be granted or disapproved by May 15
of that calendar year" shall be deleted.
Section 4.3
EPA hereby requests the deed restriction submittal as stated;
status of this shall be included in the Monthly progress reports
until completed.
• •
National Starch & Chemical Company Site
Salisbury, North Carolina
Operable Unit 2
Page 3
Appendix B, QAPP
Detection limits shall be equal to or less than the cleanup
standards and/or goals identified in the Operable Unit 1 Record of
Decision. ·
Appendix B, OAPP
CLP data packages shall be submitted to EPA for sampling events in
which samples are split with EPA. Monthly progress reports shall
identify the samples collected, the analyses requested, the
anticipated schedule for data validation and results; monthly
reports shall report status until the CLP data package has been
submitted to EPA.
• •
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
[)EC 1 () i991
4WD-NSRB
Bruce Nicholson
North Carolina
Department
401 Oberlin Road
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
of Environment, Health and Natural Resources
Raleigh, North Carolina 27605
Re: National starch & chemical Company Site
Salisbury, North Carolina
onerab~e._tJilj.~ 2 . . 1 ..,
Remedial Design/Performance
r
Mcinitoring work Plan ·-------------~----1-
1 ,. ''
Dear Mr. Nicholson:
Enclosed is a copy of the Remedial Design/Performance Monitoring Work
Plan for Operable Unit 2, National starch & chemical company site
(NSCC). Please review and submit any comments to me no later than
January 3, 1992. I recognize that the holidays may impact this
schedule, so let me know immediately if you cannot·make this
deadline.
This Site Work Plan should be developed according to the EPA scope of
Work (SOW) and should be consistent with the ROD. The remedy for
this operable Unit is ess_entially no action except for monitoring and
some institutional restrictionS. Let me know if you need copies of
either the ROD or the sow to help you in your review.
Your attention to this is appreciated. Please contact me if you have
any questions or suggestions concerning this site. I can be reached
at 404/347-7791 or fax number 404/347-1695.
·Barbara H. Benoy
Remedial Project Manager
Waste Management Division
cc: (Lee_Crosby~,-"ffc-DEHNR:J
William Meyer, NC-DEHNR
curt Fehn, EPA
Rick Leahy, EPA-ORC
_._...,.. ..........
· .. ··•:::•~~~A'.'.••~~
l,:r' f} ' -1
(5 }{it~J1:;;.~~.~ -~~ .~"\ ;1;~ f '<' .:.J . ..\ ···.~~;:;::..
• •
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Solid Waste Management
P.O. Box 27687 · Raleigh, North Carolina 27611-7687
James G. Martin, Governor
William W. Cobey, Jr,, Secretary
June 12, 1991
Mr. Donald J. Guinyard
Acting Director
Waste Management Division
VIA FACSIMILIE
U.S. Environmental Protection Agency
345 Courtland• Street, N.E.
Atlanta, Ga. 30365
Re: RD/RA Negotiations for the National Starch & Chemical
Corporation Superfund Site, Operable Unit No. 2;
Salisbury, Rowan County, North Carolina
Dear Mr. Guinyard:
William L, Meyer
Directcir
On June 10, 1991 I received your letter dated May 16, 1991
notifying the State of North Carolina and the State's. Natural
Resources Trustee of the negotiations for the RD/RA at the
National Starch site and offering the state the opportunity to
comment on the Consent Decree. While we are pleased to be
provided the opportunity for. comment, the State would appreciate
more notice than we have been given in this situation. I
suggest, therefore, that in the future EPA provide more notice so
that the State has time to thoroughly review the Consent Decree
and prepare its comments. My preliminary comments on the Consent
Decree are as follows.
The State would like EPA's assurance that this Consent
Decree applies only to Operable Unit 2 at the above referenced·
site. If this is the case, we request that all reference~ to the
"ROD" be changed to "ROD for Op Unit 2." The reason for this
request is the State's concern that Operable Unit 3 be remediated
as well. I would appreciate receiving EPA's acknowledgement that
the signing of this Consent Decree will not alter the fact that
Operable Unit 3 will be remediated.
The remainder of my comments assume that the Consent D~cree
applies only to Operable Unit 2.
•
2
The State objects to the proposed change in the definition
of the "Site" on page 8. The State believes that the Site is the
entire area of contamination and supports EPA's original
language.
On page 3 at paragraph G, th~ state.opposes the alteration
to the Consent Decree proposed by the Settling Defendant. It is
the State's position that the RI/FS for the entire site has not
been commenced and completed. EPA's original language is
acceptable.
Also on page 3 at paragraph J, the statement regarding the
State's concurrence with the ROD is inaccurate. Th~ State would
like the word "conditional" inserted before "concurrence." In my
September 24, 1990 letter to Mr. Greer Tidwell, I requested that
soil flushing and soil vaporization be reexamined as alternate
remedies for Operable Unit 2. The State has not been notified
that this reexamination has occurred.
On page 6 the State objects to the proposed change in the
definition of "Future Response Costs" .primarily because the State
wants any potential future costs reimbursed. The State supports
EPA's original language.
On page 9 at paragraph 5, the State recommends that the term
"plaintiff's" be replaced with "plaintiffs'" to. reflect the fact
that the State's future response costs will also be reimbursed.
On page 11 at paragraph 9, the State opposes the changes
proposed by the Settling Defendant. In order to protect the
public's right to know, the State believes that it is essential
that a map delineating areas of contamination and a copy of the
Consent Decree be filed with the Recorder's Office in Rowan
County. '
on page 18 at paragraph 20, the state opposes the insertion
of the term "final" before the term "results." The state wants
to be able to obtain any validated sample data, not just final
results. The state supports EPA's original language.
On top of page of 19 the proposed changes by the Settling
Defendants are not legible on my copy of the Consent Decree.
Please let me know what the propo.sal is so that I may comment on
it.
On pages 22-23 at paragraph 30, the State objects to the
proposed change to limit the review time to 15 days. Such a
short time period is unacceptable because it does not provide
sufficient time for EPA to solicit the State's comments.
On pages 58 and 63 my address .should be corrected to read
• •
Division of Solid Waste Management, Dept. of Environment, Health
and Natural Resources, P.O. Box 27687, Raleigh, N.C. 27611.
I appreciate the opportunity to comment on this Consent.
Decree and I look forward to your responses to the questions I
have raised.
Respectfully,
d~J~vJ
William L. Meyer
3
I
• • UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
'JUN !:i 1991
4RC
North Carolina's Natural Resources Trustee
c/o Mr. William Cobey, Jr., Secretary
Division of Solid Waste Management
North Carolina Department of Environment
Health and Natural Resources
P.O. Box 27687
Raleigh, North Carolina 27611
Re: RD/RA Negotiations. for the National Starch & Chemical
Corporation Superfund Site, Operable Unit No. 2;
Salisbury, Rowan County, North Carolina
Dear Mr. Cobey
On March 25, 1991, the United States Environmental Protection
Agency (EPA) issued a special notice letter to the Potentially
Responsible Party (PRP) related to the above referenced Site.
The purpose of the special notice letter was to inform the PRP
that a moratorium was being triggered by EPA in order to
negotiate the Remedial Design/Remedial Action (RD/RA) phase to
be implemented at the Site. A draft Consent Decree and a copy
of the Record of Decision (ROD) was attached to the letter. A
copy of the special notice letter, the Consent Decree, and the
ROD was addressed to you.
According to the terms of the letter, the PRP had thirty (30)
days to tender to EPA a good faith offer for the execution of
the RD/RA. If a good faith offer is provided to the Agency, the
moratorium will be extended for thirty (30) additional days. On
this date all negotiations regarding the RD/RA should have
concluded and a final Consent Decree should have been signed.
On May 1, 1991, EPA received from National Starch & Chemical
Corporation, a proposal to finance, conduct and implement the
RD/RA at the above referenced site. The proposal was received
within the 30 day term established by Section 122(a) of the
Comprehensive Environmental Response,.Compensation and Liability
Act of 1980 (CERCLA), as amended. Also, National Starch's
proposal addresses the matters included in EPA's special notice
_letter dated March 25, 1991. Therefore, EPA considers the
propos~l as a "good faith offer" and, as a consequence, pursuant
to Section 122 (a) of CERCLA, · a 30-day term, commencing on May 2,
Printed on Recycled Paper
• -2-• 1991, is hereby granted for the conclusion of the RD/RA
negotiations and for the execution of a Consent Decree embodying
the agreement.
Attached hereto you will find a copy of National Starch's
proposal consisting of a l_etter dated May 1, 1991; a draft
Consent Decree incorporating National Starch's modifications to
the Draft Consent Decree that EPA issued on March 25, 1991; and
a draft Statement of Work (SOW), incorporating National Starch's
modification to the draft SOW that EPA issued on March 25, 1991.
Pursuant to Sections 121(f)(l)(F), 104 (b)(2), 104(c)(2), and
105(a) of CERCLA, the State of North Carolina and the North
Carolina's Natural Resources Trustee are, hereby, notified of
the negotiations for the RD/RA to be implemented at the above
referenced Site; and of the opportunity to participate in such
negotiations. The State of North Carolina's Natural Resources
Trustee, as well as the State of North Carolina are hereby
notified -of the "good' faith offer" made by National Starch.
Due to the time constraints imposed by statute on these
negotiations, any comments must be received by EPA within the
next seven (7) days. EPA's negotiation team is composed of the
following persons:
a. Mr. Charles DeSaillan, Esquire -EPA Headquarters
b. Ms. Quentin C. Pair, Esquire -U.S. Department of
Justice
c. Ms. Barbara Benoy -Remedial Project Manager
d. Mr. Curt Fehn -Chief, North Carolina Remedial
Section
e. Mr. Anita Davis -Cost Recovery Specialist
f. Mr. Richard Leahy, Esquire -Office of the
Regional Counsel
Your participation and cooperation in this matter will be
appreciated.
• .. tiona/ Starch and Chemical Company
10 Finderne Avenue P.O. Box 6500
Bridgewater, New Jersey 08807-3300 908-685-5000
•
Cable Address: NASPAOD,BAlDGEWATEANEWJEASEY
FAX: 908-685·5005 VIA FEDERAL EXPRESS
Writer's Direct Dial Number: 908-685-5198
April 29, 1991
Mr. Richard Leahy
Assistant Regional Counsel U.S. Environmental Protection Agency 345 Courtland Street, N.E. Atlanta, GA 30365
· Re: National Starch and Chemical Company Site Salisbury, North Carolina
Operable Unit 2
Dear Mr. Leahy:
This letter is submitted in response to EPA's letter dated March 25, 1991 regarding the-above site and constitutes our good faith offer to EPA to conduct and finance the remedial design/remedial actions fbr Operable Unit 2. Enclosed is EPA' s draft Consent Decree which has been modified to reflect revisions which we believe are appropriate. We wish to negotiate a final Consent Decree with EPA regarding Operable Unit 2.
Also enclosed is EPA' s draft revised to reflect our proposal Decision.
Scope of Work
to implement
which has been
the Record of
Our company intends to retain the same.firm for Operable Unit 2 that it has used heretofore during the RI/FS and RD/RA for Operable Unit 1. IT Corporation has the technical capability to perform this work. National Starch and Chemical Company has the requisite financial ability to execute the Scope of Work-for Operable Unit 2, and we will rely on EPA' s acceptance of our financial asstirance documents submitted for the O?er~ble Unl.t l Scope of Work in this regard since that work is signi~icantly more costly than the no-action alternative selected by EPA for Operable Unit 2. We have enclosed our 1990 financial operating results as further assurance of our financial ability.
We are also willing to reimburse EPA for the costs it w11J incur in overseeing the response activities for Operable Unit 2.
We are willing to meet with EPA at its convenience to discuss this proposal. Please direct correspondence on this matter to me as I will be representing our company in negotiations with EPA.
' • • With regard to EPA's demand for payment as set forth on page
4 of its letter dated March 25, 1991, we acknowledge in general
that we have an obligation to reimburse EPA for oversight costs
incurred in response to conditions at the Site. H_owever, we
question whether any of the amount set forth in EPA I s letter
represents costs that are the subject of a prior Consent Decree
with EPA in connection with the RI/FS portion of the work. We
would appreciate it if you would provide us with an itemized
breakdown of the amount set forth in EPA's letter, including the
nature of the work performed and the:relevant dates for all such
work. Preferably, ·we would like copies of all supporting
documentation that EPA relied on-in arriving at the $445,464,65
amount.
AMS:pm
Very truly yours,
ffl05!~ Q---,.
Alexander M. saMon, Jr.
Counsel, Regulatory Affairs
cc: Ms. Barbara Benoy, EPA Region IV, Regional Project Manager
H, Graulich, NSC
M. Sturdevant, IT Corporation
J. Kirkland, Esq., King & Spalding
34
• •
Consolidated Balance Sheet* '"'"'" ,hoo"'°d"
.-\ssets
Cash and temporary in\'estments
.-\ccounts receivable -net
Inventories
Prepaid expenses and other
Total Current Assets
Irn·estments
Property at cost
Less accumulated depreciation
. Property -net
Other .-\ssets
Total
Liabilities and Shareholder's Equity
Notes payable
Long-term debt due within one yea
. .\ccounts payable
Accrued taxes and expenses
Total Current Liabilities
Long-Term Debt Maturing after One Year
Deferred Credits.and Other Long Term Obligations
Shareholder's Equity
1btal
· [ncludc.--s companies whic~ are ~a;:;:geci but not owned.·
D?cember 31 1990
Sl 7,781
246,716
214.615
59,742
538,854
151.900
935,678
299,564
636,114
121.055
Sl.447,923
S23,715
1.776
[60.730
. 1 76,-132
362,65,3
279,49iJ
122,126
683,648
$1,447,923
1989
'"6.332
23-l.5-!2
203 .35 7
52.387
536 61 S
53.307
836,892
258. 785
578,107
llS.969
Sl.287.00 l
S21.813
2,063
159.933
168.007
361.8[6
206.2 l 6
121.982
596.987
$1.287,001
·:' • • ' ' 'I. ' • ' ' '•, ' ' ' : : : ;.', • • ....... I . . .. , .-.. ~:':i.i;
Financial Data 199(
Consolidated Statement of Income* !Data in :housands1
For the years ended December 31 . 1990 1989 1988
\et sales S 1.670,-172 S 1.569,337 $1.H.J.9.J3
Cost oi sales .. 1.134,987 1,086.980 · 989,696
Gross profit 535,-185 .\82.357 425,2.\7
Selling. general a~d adrninistratl\·e expenses 281,259 256.034 225,249
Operating income 25-L226 226.323 199,998
Other expenses -net 26,087 23,200 18,673
I ncorne beiore taxes from Robert B. Albert
,:,1nsolidated operations 228. 139 203,123 181.325 Senior Groµp Vice Pre5iden·
· Finance and Administ:-atior
P:·· ··'sions for federal. ioreign and state
-.::me taxes 88,496 81,788 i .J ,687
Income after taxes from
consolid:ited operations 139,6-!3 l 21.335 106,638
Equity in net earnings of joint \·entures 5,044 7,.J29 6,777
~et income S 14-1,687 · Sl28,i64 Sll3,415
Percentage Distribution of Consolidated Sales*
1890 1989 1988 1987 1986
.-\dhesives 45% 45% .JI% 43% 41%
Industrial Starches & Food Prnducts 33% 35%, 38% 37% 38%
Resins and Specialtv Chemicals 22% 20% 21 ?b 20% 21%
100% 100% 100% 100% 100%
Consolidated Operation's and Joint Ventures* (Data ;othousaods)
:-!et Sales 1990 1989 1988 1987 1986
13.S. Consolidated S881,795 $873,214 $785,495 $675,886 5642,530
Foreign Consolidated 788,677 696.123 529,448 531,989 421,114
Total Consolidated 1,670,472 1,569,337 1,414.943 1,207 ,87-5 1,063,644
Joint Ventures ,company Share) 103,504 101.109 98,279 73.735 62,148
Total $1,773,976 ~l.670.4.J6 $1,513.222 Si.281.61G $l.125,792
~\et I ncomc
L-.S. Operations S93.578 S83,025 $69,581 559,561 $50,292
Consolidated
Foreign Operations 46,065 38,310 37,057 28,450 19,144
Consolidated ·operations 13~,e,13 1:1.335 106,638 88,011 69,.\36
Joint Ventures iComp;rny Sharel 5,044 7,429 6,777 4,206 2,370
Total · $144,687 Sl28.764 $113,415 $92,217 $71,806
"Includes companies which ar(' m?naged but not owned.
\ • •
Summary of Operations 1D,1t.1 lrJ :.'".,11:.-;im),: ,,f d,,ilJ~'-,·\,'l';J'. :,,r .::..:r,a.: rJtlOI
1990' 1989'
Net Sales 1.670,-172 l.569.337
Gross Profit 535,485 s82.357
Operating Income 254,226 226 323
Income before Taxes from Consolidated Operat'ions 228, 139 203.123
Pro1·ision for Income Tuxes 88,-196 Sl.788
Income after Taxes from Consolidated Operations 139,643 121.335 ----------------------------Net Income 14-1,687 LS.16.J
Financial Position and Other Statistics
Current .c\ssets 538,854 536,618
Current Liabilities 362,653 36l.816
Working Capital 176,201 17-1.802
Current Ratio 1.5 to 1 1.5 to 1
Depreciation >±2,090 36.218
Capital Additions 85,469 90.325 Property, Net of Depreciation 636,114 578107
Long-Term Debt 279,496 206.216
Shareholder's Equity 683,648 596.987
Number of Employees Worldwide 7,418 7.-188
36
... ,.•.ti~ ,~ ,,·1 ~:-~/·X .. . . . . \ ' ' t-!
• Ten Year Summar.I Financi~I lnformatic
1988' 1987' 1986' 1985 1984 1983 1982 1981
1.414,9-13 1,207,875 1.063,64-1 880,570 8-12,570 756,928 691.951 668,372
-125,24 7 375,385 310.306 256,854 248,200 216,273 182,005 169,783
199,998 175,285 140,227 11-\.565 113,794 100.925 74,880 74,049
181,325 153,113 125,961 108,580 96,747 92,730 64.887 66,382
74,687 65 .102 56,525 -14,694 -13,201 . 45,341 28,160 26,241
106,638 88.0 l l 69.436 63,886 53,546 47,389 36.727 ,IQ, 1-11
113,415 92 .21 7 71.806 66,013 54,956 46,679 37,050 41,-14-1 Michael I. Fenster
Controller
528,463 448,876 3-16,960 322,739 297,069 263,395 204.491 206,314
288,174 258,286 189,876 151.205 133,516 116,255 80.734 84,472
240,289 190,590 157,08-1 171.534 163,553 ,147,140 123,757 121,842
l. 8 to 1 1. 7 to 1 1.8 to 1 2. l to 1 2.2 to 1 2 .3 to l 2.5 to 1 2.4 to l
32,201 27,057 29,612 20,118 18,666 17,709 17,235 15,390
80.00 I 96.462 60,187 108,715 35,810 24,969 22,909 18,728
504,853 447.741 34-1,727 287,708 198,246 184.695 171.000 163,115
135,702 89.148 65,314 61,909 35,434 32,515 32,566 34,040
574.267 498.370 ' -102,905 375,201 328,068 303,546 271.186 254,053
7,165 6,759 6,464 5,699 5,478 5,175 4,824 4,648 -
· !ndudes companies which are managed but not owned.
3
• •
CONSENT DECREE
NATIONAL STARCH AND CHEMICAL COMPANY SITE
• •
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITF.D STATES OF AMERICA and
STATE OF NORTH CAROLINA,
)
)
)
) Plaintiffs,
v.
)
) CIVIL ACTION NO.:
National Starch & Chemical
)
)
Corporation
Defendant.
)
)
)
)
CONSENT DECREE
A. The United
I. BACKGROUND (o)
States of America ("United States"), on
behalf of the Administrator of the United States Environmental
Protection Agency ("EPA"), filed a Complaint in this matter
pursuant to Sections 106 and 107 of the Comprehensive
Environmental Response, Compensation and Liability Act,
("CERCLA"), 42 U.S.C. §§ 9606, 9607.
B. The United States in its Complaint seeks:
( 1) reimbursement of costs incurred by EPA
actions at the National Starch & Chemical Corporation
Superfund Site in ·salisbury, Rowan County, North Carolina,
together with accrued interest; (2) an injunction requiring
· nfl(,f'5~,7 -t:~ Su l'l'•r.,:. -C/2e.., /'elh:7r/'/
Defendant to perform studies~and response work at the Site in
conformity with the Record of Decision (as defined below) and
t.h<= National Contingency Plan, 40 C.F.R. Part 300 (c1s amended)
( "NCP" ) ; · ( 3)
• -2-
response costs; and (4) such ocher relief as the Couct finds
appropriate.
C. In accordance with the NCP and Section 12l(f)(l)(F) of
CERCLA, 42 U.S.C. § 962l(f)(l)(F), EPA notified the State of
North Carolina (the "State") on December 11, 1990 of
1 negotiations with potentially responsible partie~ regarding
the implementation of response actions pursuar,t 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
encouraged the trustees to participate in the negot·iation of
this Consent Decree.
E. The Defendant that entered this Consent C~cree
("Settling Defendant") does not admit any liability to the
Plaintiff arising out of the transactions or occurrences
alleged in the Complaint.
F. Pursuant to Sec.tion 105 of CERCLA, 42 U.S.C. § 9605,
EPA placed the Site on the National Priorities List in April
1985.
.. ,-...
\ • .·~ \ • -~ .:. 3-' -· ·"""-I u \1 )
)
G. -In-response ··to··a ·release-or -threat of a .release of.a -
hazardous substance at or from the Site, EPA and the Settling
Defendant-.commenced-·in-January-l.·98·7-, '; Remedj..al Investig,tion and
· -· C,<Jj,,,_./ 5a-l,sf:e5 f,-,~ f">.AJ,r:,r,;;,oT',
Feasibility Study (~RI/FS")~for the Site pursuaRt to 40 CF~ §
L ' 10 (,. r:."
300. 68; (J.)vJ':, QDN'~"';-W ~ 4-7,,
. O (\ <i-c cm \l ' e -rea.
H. The Settling Defendant completed a Remedial Investigation
("RI") Report on June 21, 1988, and EPA com?leted a Fea~ibility Study
("FS") Report in August 1990;
I. Pursuant to Section 117 of CERC~, 42 U.S.C. § 9617, EPA
published notice of the completion of t~e FS and of the proposed plan
for remedial action in July 1990, in a major local newspaper of
general circulation. EPA provided an opport,,nity for written and
oral comments from the public on the proposed remedial action. [-k Je/[
copy of the traRsoript o'f th~bl ic meet j ng is ava i la bl e to tbe
-pub.l-i-e-a.s-par~e-adrnini-str-at-i-ve-r-eG<H:-d-upen-whcic€h-t-he-Reg-iena±-
-Admi-n-icst-r-ate-r-based-the•-se-lecti-0n-G-f-the-r-esponse-aG-t.J.-0n~j
J. The decision by EPA on the response action to be implemented
at the Site as Operable Unit 2 is err..::,odied in a final Record of
Decision ("ROD"), executed on September 28, 1990, on which the State
has given its concurrence. The ROD includes EPA's explanation for
any significant differences· between th6 final plan and the proposed
plan as well as a responsiveness summary. to the public comments.
Notice of the final plan was publishe:d in accordance with Section
117(b).
I.
• -4-.
L. Based on the information presently available to EPA and the
State, EPA and the State believe that the Work will be properly and
promptly conducted by the Settling Defendant.
M. The parties recognize, and the Court by entering this Consent
Decree finds, that implementati9n of this Consent Decree will
expedite the cleanup of the Site and will avoid prolonged and
complicated litigation betwee~ the Parties, and that this Consent
Decree is fair, reasonable, and in the public interest.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED, and DECREED.
II. JURISDICTION [BJ
1. This Court has jurisdiction over the subject matter of this
action pursuant to 28 u.s.c. §5 1331, 1345; 42 U.S.C. §§ 9606, 9607,
and 9613(b). ~his Court also has personal jurisdiction over the
Settling Defendant. For purposes of this Consent Decree and the
underlying complaint, Settling Defendant waives all objections and
defenses that it may have to jnrisdiction of the Court or to venue in ,z :J re. es to this District. Settling Defendant sfiall not~challenge this Court's
jurisdiction to enter_, '=cl: enforce~this Consent Decree.
L-or -+~ r ,,-, , ";,+e, III. PARTIES BOUND (1::,J
2. This Consent Decree applies to and is binding 'upon the United
States and the State and upon the Settling Defendant and its agents,
s.uccessors and assigns. Any change in ownership or cc:.:-porate status
of the Sett..1.i.ng Defend&nt including, but not limited to, any transfer
of assets o~ real or personal property shall in no way alter Settling
Defendant's responsibilities under this Consent Decree.
• -5-•
3. Settling Defendant shall provide a copy of this Con~ent
s-: r,,:'., .-~:,,'I~,,,. ·.1 .? .... •(': ~ ,
Decree to each contractor hired to perform the Work/required by this
Consent Decree and to each person representing Settling Defendant
with respect to the Site or the Work/'."\a-oo---s-Rall eone±-t:---i-en--a±--1-•
-Gon-t.rcaG-ts-e n-t.er-ed---i-n-t--0--her-eunder-u po n-pe :r;..f o i::ma nc e -o.f-t..he-..Wo r k--i-n
-<c?on-f-0B11i-t.-y--wi-t.h-the--tei::ms-o.f-th.ics--Consent-.Decree.. Sett 1 ing Defendant'
or its contractJr~ shall provide ·written notice of the Consent Decree
to all subcontractors hired to perform any portion of the Work
required by this Consent Decree. Settling Defendant shall
nonetheless be responsible for ensuring that its contractor and
subcontractors ·perform the Work contemplated herein in accordance
with this Consen~ Decree. With regard to the activities undertaken
~ursuant to this Consent Decree, each contractor and subcoritractor
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 {8)
4. Jnless 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 in this Consent
Decree and the Exhibits and Appendices attached hereto, the following
definitions shall apply:
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Li.ability Act of 1980, as amended, 42
U.S.C. § 9601 et seq.
"Consent Decree'' shall mean this Decree and all
• -6-• • ' __ .. -:,j,. ' ' \_) I \1 \, __ ' __ ,.:_--------·
appendices attached hereto. In the event o.f conflict bet~een this
Decree and any appendix, this Decree shall control.
''Day'' shall mean a calendar day unless expressly stated to
be a working day. "Working day" shall mean a day other than a
Sa turc!ay, Sunday, or1 Federal holiday.
\. s-h~ O'< J time under this Consent Decree, where
Satu-day, Sunday, o~ F~d:!:l_ holiday,
. ~ . end of the next working day.
In computing any period of
the last day would fall on a
the period shall run until the
"EPA" shall mean the United States Environmental Protection
Agency and any department;; or ag'?ncies of the United States_, Q "d C\C\'-\ e ,,-~ ;"/47,.c...S, ~",., 75 / C<,-r, /.re;<.-<., fc-1S/ '{, V 6Cer, f-y{t...,:_,,Tf) rs &I Cbn5 u IT;)'"/ 73 z:: /,a.re. 0 t' · "North Carolina Department of Environment, Health, and
Nat~ral Resources" shall mean the _(State Pollution tontrol agency or
Environmental Protection Agency) and ·any successor departments or
agencies of the State.
"Future Response Costs" shall mean all costs, including, but
not limited to, indirect costs, that the United pu"Su,;r,f i:o 4 "2 !} S C. J 96<:JI c,:_~ -r4{-,/ ti" re, /,of incur "in overseeing the Work;_ -H!e-±-ti ·
States ¾d tho St~o lr,Cf;I//S• 5 () f OJ-f/J -,' ,<IC
· itod to, payr4-l-l
--c--os-ts I cent-r--a~-s,-t-r-avel--oos-ts, iabo-r-atoEy---GGs-ts, th<,--B06-t£.--
:-·incurrcd --pursuant-to-Sec-t-ion-X-{Acc es s-)-,-and-the-cos t-s-0.f--FBv.,i,ewl-ng-
-or---0eve lopi-ng. plans, ... reports-and other--i-tems--pursuant-t~hl-s-
--Gonsent---DeG-ree ,-ver ifying--t-he-Work ,--or--othen.ise -implement-i-ng-or---
•-en.f orc ing-this -Consent----Dec-ree,-Future Response Costs sh-a-±-1 al:rn·
--Hlc.l.ude_ al L..co st s , i ncludi.ng-.Lnd i rect.-c os.t S-,--,i.--f!c-u-rc-1=ed-by-t-he-U n ±-t-ed-; 11ci.,_/r. "1 t,&S/2 ;()CcJf(d . -StatesLan<l-t:-he State in-connection with the Site between ':he date
this action ~as filed and the effective date of this Conse~c Decree. ' ' Ctc,, CC/7S•j7P/JI U..) , -// -/A2
-~~ --. • u , \ • \ ·~·: ~~\ ·1-
-7-\ • J .--·----
''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. S 9605, codified at 40
(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, ind,i:r;ect ;:osts, t;,hqt t;,he Un-i,,tedfStates j
' /70 C,.>J6re,a/ Py T/) e 4,4/'7,:;t/'Qr,V( Orr/?(>-., l,Jt,,.:R,,, L)Md 1'0
and the State incurredAwith regard to the Site prior to April 10, ffl-:,
19 a 9 . ev ~ ,IJ'.; a ,c. cfa-'1 s '!>ft// -I-w/).1, --/J e-,A/c:,P ~ ----------//er,_
f/irf ----(•Perfomance Standard~shall mean those cleanup
~standards, standards of control, and other substantive requirements,
e,rf' criteria or limitations, set forth in the ROD, Paragraph 13 of this
,{M 5--;0o I_) Consent Decree, and 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
• -8-•
signed on September 2 8, 19 9 0 by the Regional Admin.is tra tor, EPA
Region IV, and all attachments _thereto. ;;,"
ar:':l //.:····:r-;~ -.-if:..,:z' /;2,e,,i i,__,, 1~-S..a.,-.cc ·
"RCRA" shall mean the Solid Waste Disposal Act, as amended,
42 U.S.C. §§ 6901 et~ (also known as the Resource Conservation
and Recovery Act).
"Response Action" shall mean those activities~ except for
Operation and Maintenancec...._to be undeftaken by the Settling Defendant '!JJ,o.,R..') "'I= V.24/l /<) v O /JC 0,e.,
to implement theifinal plano-afld speoifioations submitted by the
~ettling Defendq~t p;ursua~ to the Statement of Work and approved by
p,x507,-,.,L 7b -(-/2,; {e,nxn-f UU-nc<-
EPA.( including, but not limited to, any additional activities
required under Sections VII (Additional Response Action) and Section
VIII (U.S. EPA Periodic Review) of this Consent Decree.
"Section" shall mean a portion of this Consent Decree
identified by a Roman numeral and including one or more paragraphs.
"Settling Defendant" shall mean National Starch & Chemical
Corporat:ion. CJ/,,t,,, P; 11£l,c~ a«.e_ jXflaq,( U/J,rMf1i;7 qt "/'/"V'Y%..l~,__7
<.,
"Site" shall mean the~ational Starch & Chemical ~tp✓at.ion
S..Upo.:fund-Site, encompassing approximately 500 acres, located at
Cedar Springs Road in Salisbury, Rowan County, North Carolina, as
described in the Record of Decision and depicted on the site map
included in the ROD.
"State" shall mean the State of North Carolina.
"Statement of Work" or "SOW" shall mean the statement of
work for implementation of the Response Actionf andrMaintenance
. !.... o--:=-cs~ '· ''.
• -9-•
~·, .~ -.., :\
1 ' h•,-• ' .-' .. \ _..., ' L--;! 1,../ \'J ---------
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 and approved by EPA pursuant 'to Paragraph \/1. I 0.
"United States_" shall mean the United States of America, /4
including the Department of Justice)a-.¼l United States
Environmental Protection Agency. On cl ~Je., 1//1, /4J JT~ lepvi-/4xcl)f P( __Z,J
"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--5€e-ic-i-en------+G0-4-{-2--'7-}--0f-RGRA,----4-c2--
·U .S .-C·.--5-6-9 O.J-(-2-7-t-;-and ( J) any "ha13ardous material· under--eny--
applicable state statute.
"Work" shall mean all activities Settling Defendant is
required to perform under this Consent De_cree, 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 the Site
by the design and implementation of the Response Actions and
>,/
['fl1\fT l • •
Effect of Settlement
This Consent Decree was negotiated at arm's length and
executed by the Parties in good faith go avoid further expensive
and protracted litigation and is a settlement of claims which were
vigorously contested, denied and disputed as to validity, liability
and amount. The Plaintiff and the Settling Defendants agree that
neither this Consent Decree, nor any part herecf, nor the entry
into, nor any performance under this Consent Decree by any of the
Settling Defendants, shall constitute or be construed as a finding
or admission or acknowledgment of the factudl or legal allegations
contained in this Consent Decree or in the Complaint, or of any
liability, fault, wrongdoing, or evidencf of sue~, or
of violation of any law, rule, regulation, or pol~cy,
an admission
by any
Settling Defendant or by its ofiicers, directors, employ~es,
agents, successors or assigns, nor shall this Consent Decree nor
any performance hereunder by any of ·the Settling Defendants create
any rights on behalf of any other person not a party hereto.
at j f k /384 2 3/ 4•1002 i docs/consent. fr1·Apr !9 11:22:}S 190! -8 -
Each
• •
6f the Settling Defendants expressly reserves any and all rights
(including any right to contribution), defenses, claims, demands
and causes of action which each of them may have with respect to
any matter, action, event, claim or proceeding relating in any way
to the Site against any person, except as expressly provided in
.this Consent Decree. Settling Defendants individually and
collectively, do not admit, accer:t, concede or acknowledge the
determinations, allegations, findings of ·fa.ct, if any, and
conclusions in this Consent Decree or in the complaints filed in
this action ~nd specifically reserve the right to contest any such
determinations, allegations, findings and conclusions except in any
proceeding to enforce Defendants' 0bligations pursuant to this
Consent Decree. AJditionally, pl'rsuant to Section 122(d)(l)(B) of
CERCLA, except as otherwise provided in the Federal Rules of
Evidence, the participation by any party in this Consent Decree
shall not be considered an admissi0n of liability for any purpose,
and the fact of such participation shall not be admissible in any
judicial or administrative proceeding.
- 9 -
•
6. Commitments by Settling Defendant
~
_.....__------------------·--·
a. Settling Defendant shall finance and perform the Work i
accord~nce with this Consent Decree, including, but not limited to,
the SOW and all standards, specifications, and.schedules set forth i
or developed pursuant to this Consent Decree. Settling Defendant
shall also r8imburse the United States and the State for Pa.t fdr Responco Costs and Future Response Costs as pro•1ided in this Coni;ont
De=.;;.4-,--,/~ ,t;A--5<>':!• 6k ,;;n(Y /);J:U5,Sa-r"7 ,:;,;-1c//)~-,L1/JCLL/',-~1/1 C" ,?-ld/1/Jc //JCD/!<;151'60! C;.J,7',,_, -lhe A/C--P
b. The obligations of Settling Defendant, and any PRP who
might be identified in the future, to finance and perform the Work
and to pay amounts owed the United States and the State under this
Consent Decree are joint and several.
7. Compliance ~ith 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, ~f approved
by EPA, shall be consid.ered to be consistent with the NCP.
8. Permits
a. As provided in Section · 121 ( e) of CERCLA and the NCP, no
pe1.,nit 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
• -11-•
r---u t\/-\ l-
b. Section XIX (Force Majeure) shall govern 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 construed
to be, a permit issued pursuant to any federal or state statute or
regulation.
9. Notice of Obligations to Successors-in-Title
a. Within 15 days after the entry of this Consent Decree,
,{/077,t,G
the Settling Defendant shall record a CQrtifiQd copy of this Consent
Decree aru:l---a ma~ indicating the areas of oontamination on tho cito
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 becree and shall reference the
recorded loeatioR of the Consent Decree 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 r·ecord at the Registry of
Deeds, or other off ices where lar.c! ownership and trans fer re':::ords are
maintained for the property, a notice of obligati.~~~o~provide access
nnd related covenants in the form set forth in
subsequent deed to
pend ix D;) ;-----
/Vvt a.~
Each
• • -12-
any such property included in the Site shall reference the recorded
location of such notice and covenants applicable to the property.
c. The Settling Defendant and any Successor-in-Title shall
at least 30 days prior to the conveyance of any such interest, give
written notice of this Consent Decree to the grantee and written
notice to EPA and the State of the proposed conveyance, including th
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 mai
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 li~bility of the Settling Defendant to comply with the Consent
Decree.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANT (5)
10. 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.
EP)I. Periodic Review), and IX (Quality Assurance, Sa,'1'.pling and Data
Analysis) of this Consent Decree ~hall be under the direction and
supervision of the Supervising Contractor, the selection of which
shall be subject to approval
• -13-• ~,):· L, li/'_;·1.-:-·,·.-.. t<~•,,'. :,,..,/:=-~.:~;,,.r.;.-, .,.rr.~l/
by EPA/after a reasonable opportunity for review and comment by the
/"'i
State. Within~ days after the entry of this .Consent Decree, the
Settling Defendant shall notify EPA and the State in writing·of the
name, title, and qualifications of any contractor proposed to be the
Supervising Contractor. If at any time thereafter the Settling
Defendant proposes to change a Supervising Contractor, the Settling
g IJ :s/;o I/ ;,{,v.1 <-
Defendant_ sh.all give such notice to EPA and the State and ahall
.,;/,e,. ~8riu/'), 7 /,,, ,e,,,,.5tma 6/; o.f1a,_,-f v, s:.vcdi Ch,,n;u
obt~ approval from BP.",, afl'.'er 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 SettlinCj Defendant in writing of •
tu,/~,,,, '2c u;,/4;,t/2,,-~5 a,: 1~ re,c.fYfr hJ,/,;r-< '? EPCl '../o «.:-f 11
its approval or disapproval~of a proposed Supervising Contractor.A~f. /2 6 ~ /?3as,Jn,r i k c,ul,SC, 7'z> Ii!--.
EPAAdisapprove~ of~ selection of any eontr3ctor •• Supervising
Contractor, the Settling Defendant shall submit a list of
contractors, including g;r;~,:J-,'.Jtions ofc:;;J:,contractor, that
would be acceptable to tahem to EPA within 30/fdays of receipt 9f EPA's
I a,, / A , ,,., 2 o Qt/Wen r Cb-/!. j
disapproval of the contractor previously selected. EPA shal~/iprovide
written notice of the names 0£ the contractor(s) that it approves ..
Settling Defendant may select any approved contractor from that list
and shall notify EPA of the name 'of the contractor selected within 21
{4/~/4r days of EPA's designation of approved 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 faih:re prevents the
Settling Defendant from meeting one or more deadlines in a plan
approved by the EPA pursuant to this Consent
.--.--., .----.. ' ~-~ -.-• -14-• \._I ( \ }--\ ;-
Decree, Settling Defendant may seek relief under the provisions of
Section XIX (Force Majeure) hereof.
VII. ADDITIONAL RESPONSE ACTIONS (S)
11. In the event that EPA or the Settling Defendant determines
that additional response actions are necessary to carry out the
/;Jf'#d)
Response Actions selected in the ROD,~notification of such additional
o/!/ A JJsl,/'0:, f,e,,_, b\?.,.~ f'
response actions~shall be provided to the Project Coordinator for the
other party.
12.
4--5 [1)'YJ b 1
Within -50Adays of
{J) r; !lt,r,
receipt o f,J 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 co ent by __ ;:he State, a wo.._·k plan for the
'.-'--r&:e-i~......,__ ____ IY:__f.-!(/;J~
additional response actions. pon approval of the plan pursuant to
Section XII (Submissions Requiring Agency Approval), Settling
Defendant shall implement the plan for additional response acLion in
accordance with the schedule contained therein.
~additional response actions that Settling~~
determines ar~o carry out the Response tions selected
in the ROD shall be subject--tq__ approval PA, after reasonable
opportunity for review and co~:~ State, and, if authorized ~ ....
by EPA, shall be completed by Settling Defendant ·in -ac_cordance with --~ -plans, specifications, and sched.ules approved by EPA p;.;.rsuant·to_
Sectio~ Submissions Requiring Agency Appro·,al) . .,.
-15-•
14. Settling Defendant may invoke the procedures set forth in
section XX (Dispute Resolution) to dispute EPA's detennination that
additional response actions are necessary to carry out the Response
Actions selected in the ROD, as-being . .arbitrary-and .. caprie-ious-or
-ot-herw¼se-net-in-acco:1:0.anee-w±-tch---law. Such disp·ute shall be resolved
on the administrative record .
. ~ (?/11---------------VIII. U.S. EPA PERIODIC REVIEW (5) P/JI 1~ Until such time as EPA notifies the Settling Defend~{
pursuant 'to Paragraph 41 of Section XV (Certification of conipletion), . ' L Settling Defendant shall conduct any studies and investigations as
requested by ~in order to permit EPA to conduct re✓~-ew at leas.t
, /
every five years a required by Section 12l(c) of/CEP.CLA and any
' . I applicable regulation' · ;·
16. If required by'\;~ctions 113(j) (2) or 117 of CERCLA, Settling
Defendant and the public ~all .be provide/with an opp0rtunity to
comment on any additional re;~°Se acti's proposed by EPA as a
/ result of the review conducted pu uant to Ser.tion 12l(c) of CERCLA
and to submit written comments for/t record during the public
/
comment period. After the per,Iod for s mission of written connnents
I/ '
is closed, the Regional Administrator, Reg'ion IV, shall determine in
writing whether addi ti.anal_, response actions ')r'Z ap1Jropr iate.
\ 17. If the Regional Admi.n::.scrator, EPA Reg1.~r, IV determines that
infonnation received, in whole or in
/
conducted purs~ant to Section 12l(c)
' part, during 'the review ' \ of CERCLA, indicates that the
Response Actions are not protective of human health
·\
• •
· VIII. U.S. E p -p I 0 3 If?~ !w&mlw~l(>,l}~ e ~ 1 C W\JrP
A. To the extent required by Section 12l(c) of CERCLA, 42
u.s.c. § 962l(c), and any applicable regulations, EPA shall
review the Remedial Action at the Site at least every five (5)
years after the entry of this Consent Decree to assure that
human heal'th and the environment are being protected by the Work
implemented pursuant to this Consent Decree. Prior to
Certification of Completion of the Work pursuant to Section XVI,
Settling Defendants shall conduct the requisite studies,
investigations, or other response actions as determined
necessary by EPA in order to permit EPA to conduct the review of
the Site required by Section 12l(c) of CERCLA, 42 U.S.C.
§ 962l(c). If, upon such review, EPA.determines prior to the
Certifjcation of the Completion of~the Wo=k pursuant to Section
XVI that further response action in accordance with Section 104
or 106 of CERCLA, 9 U.S.C. §,.S 9J,04 ~ 9604, ,i.s appropriate at / ~ E/J,1--5A.A,I; ,.,o-l·,y ~"J (/4~@10 ,/) w/',7','j b/ /{<-/,eorJ~ ,1/u.TJ the Site ,4 Settling D.;;fehdants shall implement such action .. Any /4 13J,
dispute regarding the necessity for or scope of such further ~ck.,i,,
response action shall be sPbject t_o judicial review pursuant to e, ./
it.o the dispute resolution provisions in Section XXI hereof to the //4~/
extent permitted by, and in accordance with, Section llJ of qnd
CERCLA, 42 U.S.C. § 9613.
B. Settling Defendants and the public shall b2 provided
with an opportunity to confer with EPA on any additional
activities proposed by EPA during the five (SJ-year revi~w
process and to submit written· comments for the reco·rd during the
I I
I i '
I ,
I • -22-• public comment peciod. After Ll1c peciod foe subn1ission of
wcitten ·comments is closed, the Regiona.l Adminisu:-atoc, ,:PA
Region IV, shall in writing, determine if additional activities
are appropriate.
~,. •.. In t:he event that EPA or the Settling Defendants 1/
deterni,~ --~ that additional work, including additional w :J'
identit"ie·. during the CERCLA Section 121(c) review p 9iess, is
necessary to· eet the cleanup goals set forth i/c{e/ROD or to
protect human h ,:th or the environment, noti7icat~on of such
additional work w'11 be provided to the Prs~ct Coordinator for . /~// the other party.
B. Any additiona \.,or~ determinetl t~ be necessary by
Settling Deiendants is. s •. je<:_t to ,?-,r~val by EPA and shall be
' ', / /
completed by Settling Defe~an~~-accordance with submittals
d b , 1., approve y EPA pursuant to s, c,t::ion XIII.
/ .· . '\ .
Any additional wo11ic_,iie rmined to be necessary by EPA
/ ,-c.
•, ,/ /
shall be completed by s7t~ing Def
' ; ,/ '~ submittals approved by' EPA pursuant
da~s-in accordance
t, S~tion XIII.
with the
// D. Unless ot~eniise stated by EPA,
shall submit, fa/approval by EPA, a work
/ .'
additional wor,i within thirty ( 30) days of·
/ / EPA that additional work is necessary. ·rhe plan
/ I
to the· re_qub:ements in Section VI I as appropriate.
I
approv~,p~rsuant to the procedures set forth in
SettL~~ Defendants shail implement the plan for ,.
~ accordance with the schedule contained th~rein:
Defendants
the
of notice by
conform
•
and· the environment,· the Settling Defendant shall undertake any
additional response actions EPA has determined are appropriate.
However, the Settling Defendant _may invoke the procedures set forth _,-
;...,:-in Section XX ( Dispute Resolu_ticfr{) 'to., dispute EPA' s determination __,. .
that additional respg_ns~tions are a;~ropriate or the additional
res•ponse acti ~red as being arbitrary ;~d'capricious or
"'~-.... in accordance with law. Such a dispute_,___shall be
solved on the administratiye record.
X. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS (B:.)
18. Settling Defendant shall use quality assurance, quality
cantrol, and chain of custody procedures for all environmental desiT<
compliance and monitoring samples in accordance with EPA's "Interim
Guid_elines and Specifications For Preparing Quality Assurance Project
1 Plans" (QAM-005/80), "Data Quality Objective Guidance"
(EPA/540/G87/003 ,fnd 004) and subsequent amendments to such l}J r,fen guidelines uponAnotification to Settling Defendant of such amendment
I
by EPA. Amended guidelines shall apply only.to procedures conducted
\
'after such notification. Prior to the. commencement of any monitoring
project under this Consent Decree, Settling Defendant shall submit
\
for approval by EPA, after a reasonable op".°rtunity for review and comment by the State, a Quality Assurance Project Plan ("QAPP") to i
I EPA and the State that is consistent with the SOW and the NCP. If !relevant to the proceeding, validated, sampling data generated in
accordance with .the QAPP(s) and reviewed and approved by EPA shall be admissible as evidence, ~eti·t-Bbj-eeti-on, in any proceeding under
this Decree. Settling Defendant shall assure
• -17-• --.. -· -
l. i .--.-~-·· ~ L,./l\,;\~
that EPA and Stace personnel and their authorized representatives are
(P,V.~lr; {, j-: :..j-,;. ~~..-,--,.;,,_,a.::_-. .:...• · .. · C -< n 0·-:-· _ .::_
allowed~a~cessAo ali laboraiories utilized by Settling Defendant in
implementing this Consent Decree. +n-----tlddition, Settling---Be-fendent
--6 h a-l--l---a&&U r-e--t-h a t.-s Id <?n 4-a ber-a-w-r-i..-es ---<'l ha 11 a n a -:l.-yz e--o-i--1-s-a.m pl-es
-submitted-by-EPA -purs-t.1ant-to-t-he-QAPP-fer---qua 1-it y-as s urance ·
-mon-i-tor-1-ng~Settling Defendant shall ensure that the laboratories
-~tilized by it for the analysis of samples taken pursuant to this
Decree perform all analyses according to accepted EPA methods.
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.
19. Upon request, the Settling Defendant shall allow split or
duolicate1~P.les/_tohe,1taken1 by EPA ;;md/ ,the State J j;hiµr; f --4( ;vsJ. i7 !'JO' ,5 ;" /) d 13(, 'C 'l ' .:::, Tc ><G S "i-, · /)-? " <: e, v "tr ' 0,,: > /-<.. ~ S ~ ;,,,,; "J t,>,.:fG ,-,a"" J1 "-
o-f C/1Ya'ti'l:'iid'r'i'ied r~re1e'¾~ti~:;;..ft,ettling Defendant shall notify EPA and . i4
the State not less than* 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 or the
Upon request,
take split or
/ ;( / · :;-le 7'<._ < , '4 ii
//)
EPA and the State shall allow
duplicate samples of any samples
,-1,,( G-5:, I//, 7 [k /e r,U; ~ 7
C, /v ~ /1 't_ <., ?' q '2:/ S:u /'Y'-''f /<.. Cc, ;1(2,<_. (-_, ':'>',
• :: ,..., tr,. [J) I .
-18-•
20. Within 7 days of afrequest by EPA, or
Defendant shall submit to EPA and the State 4
I
I ! ,__.,, \ ;
the State, Se~tling
r//).),..
copies of theAresults
of all sampling and/or tests or other data obtained or generated by
or on behalf of Settling Defendant with respect to the Site and/or
the implementation of this Consent Decree.
21. Notwithstanding any provision of this Consent Decree, the
United States and the State hereby retain all of their information
gathering and inspection authorities and rights, including
enforcement actions related thereto, under CERCLA, RCRA and any other
applicable statutes or regulations.
X. ACCESS (J/S)
22. Commencing upon the date .of lodging of this Consent Decree
and continuing until EPA notifies the Settling Defendant pursuant to
Paragraph (1 of Section XIV. (Certification of Completion), the
Settling Defendant agrees that the
representat~ves, including EPA .and
rC4je:nab)::-
at -a±±-times to the Site and other
United States, the State and tl'\ei,ir. · (C4 :,,r= b I c. its contractors, shall have~access
property to which access is
required. for tile implementation of th,is Consent Decre,e/ t,-the extent Cr;c' -to -,0e, ~I'll =fie.A a,<,~$ da.:, /l 07 C</J re..-->nic O''j /r,,.,v<k,<-0,-il-, r,,,Sf"' access to the property is controlled by Settling Defendant,Jfor the
purposes of conducting any activity authorized by or related to
CERCLA, RCfult, the tiCP er this Consent Decree including, but not
limited to:
a. Monitoring the Work;
b. Verifying any data or information submitted to the
Unite<i States;
I
'
or near the Site;
d. Obtaining
p.,J, ,-:. ~ ',, t
samples/;
e. Assessing the need for, planning, or implementing
additiop.al res12onse action9 a,t: or near/, the Site; _
St;.,S;,,,,;/ :lo S:df/,,-,5 '[:;efr,,-,cknTs' r&,.s&n• k «-f'l",-.,~,;;I,
.:o/ f.f Inspecting and copyin<It-record~, operating logs,
l/)&1-,f_'' ✓;~ec,! ted ~,;s~:<1:: ~;: contracts, or other documents maintaine-r gene-re · -Ej-
yr//-"i Z);/4,., ~ n 4 I' /J'Y>V,,/,:;,1 c < w , ) I -I/ _J ~" s f-O<, ,~ c
Defet dant or .1.ts-Bge-n-t:-s-; or
g. Assessing Settling Defendant's compliance with this
Consent Decree.
::c>
23, 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 persons other thiln Settling Defend::rnt,
rf4.:, 2n ~ b iv
Settting Defendant shall use bestiefforts to secure from such persons
access for Settling Defendant, as well as for the United States and
its representatives, including, but not limited to, EPA, the State
and their contractors, as _necessary to effectuate this Consent
rev&>vr6k,
Decree. For purposes of this paragraph "best/efforts· includes ~he
payment of reasonable sums of money in consideration of access. If
00
·any access r_equired to complete the Work is not obtained within~
(,C·
days of the date of entry of this Consent Decree, or within ~ 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 s~ary of the steps Settling
Defendant has taken to attempt to obtain access .. The United
• -20-•
States or the State may, as it deems appropriate, assist Settling
Defendant in obtaining access.
24. Notwithstanding any provision of this Consent Decree, the
United States and the State retain all of their access authorities
and rights, including enforcement authorities re~ated thereto, under
CERCLA, RCRA and any other applicable statute or regulations.
XI. REPORTING REQUIREMENTS (/3)
25. In addition to any other requirement of this Consent Decree,
Settling Defendant shall submit to EPA and the State 2 copies of
written monthly progress reports_...... hich: (a) describe tr.e actions
which have been taken toward achieving compliance with this Con.send . , . / I ' · Vu ,· Ct T'°---<! Decree during the previous month; (b) include a summary of ~11~
results of sampling and tests and all other data received qr
generated by Settling Defendant or its contractors or agents in the
previous month; (c) identified all work plans, plans and other
d.eliverables required by this Consent Decree complet,;,d and submitted
during the previous month; (d) describe all ac-tions, including, but
not limited to, data collection and implementation '.Jf work plans,
which are scheduled for the next month and provide other informatiqn
relating to the progress of foc..!lG~~fioR, including but not limited
to, critical path diagrams, Gantt charts and Pert charts; (e) include
information regarding percentage of completion, unre3olved 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
"----:::;> ~ ( ✓ //.,WT l-c_ /Lf', r/{~e..,/ u jZ-<-clel rC-( C (,, 0-,_ ? C>-v--<-,,{-d,c,, °?" 7./U-1,,~ ~ ~ fl/,) 0 cl f //. f;, ~ -1--6-/4.E
/;,£.,0_ fw 5-7n. {f?li ~od--r AJ<v..~1fic~'J .L<.r'-A/cv
-21-•
an tic ipa ted delays; (-f-)-i-n~l-ude--any-modi-f-ica t ion-of~the--wor-k-pl-ans-or---
other schedules that Settling Defendant has submi-tted-to EPA-oI'--that
A<l.ve-been a pp roved-by E P A-:----a-nd----Mfi-descci-be-H--ac-t-i-v-i t-ies--unde-E-taken
---i-n--suppor-t-of -the-Community-Relations -Plan during -the --previous--month
-and-those .. to be .. undertaken in -the-next month. _Settling Defendant
shall submit these
day of every month
progress rep9;:ts to EPA and ~ t7'-<,-!i V(_ oW:,,
following the.fontry of th~s
the State by the tenth
~onsent Decree until
Certification of Completion of the Response Actions pursuant to
Section XV. (Certification of Completion). a-,cu; «o56"<f 6 /_; ,JQ$ +
the State,( · haH r-v.i.Eie
IE I PIJtte~ted J,y ~Pt fil,~-5Mn
periodic briefingjfor ·
EPA and the State to discuss the progress of the Work.
26. Upon the occurrence of any event dur~ng performance of the
Work that Settling Defendant i3 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 nctify the EPA Project
Coordinator or the Alternate EPA ~reject 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 LPCRA Section 304. Within 20 days ct the onset of
such an event, Settling Defendant shall furnish to Plaintiffs a
written report, signed by the Settling Defendant's Project
• • -22-
,-· ..... ·-, \ ;--•"'-....
I . ·-. . •. , •
\__.,/t\, "..l ----
J
Coordinator, setcing forth the events which occurred and th~ measu~e
taken, and to be t~ken, in response thereto. Within JO days of the
conclusion of such an event, Settling Defendant shall submit a repor,
setting forth all actions taken to respond thereto.
27. Settlin~ Defendant shall submit to the Court, and EPA and
A;' .,;;: I ·!;,/_,,-' ,,--__ the State each year, w.:.thin 30 days of the anniversary of the -_;,tny
of the Consent Decree, a reporc =etting forth the status of the Work,
which shall at a minimum include a statement of major milestones
accompli~hed in the preceding year, a statement of tasks remaining to
be accomplished, and a schedule for L~plementation of the remaining
Work. Settling Defendant shall submit 4 copies of the report to EPA
and 4 copies of the report to. Lte State.
28. Settling Defendant s1'.all submit 4 copies of all plans,
reports, and data required by the SOW or any other approved pl_ans to
EPA in accordance with the schedules set forth in such plans.
Settlin(J' l)Qfendaot all.all aim"11--taneo □sly :,ubmit eopie:, of all s.11cl:l
29. All reports and other documents submitted by Settling
Defendant to EPA (other than the monthly progress reports referred to
above) which purport to document Settling Defendant's compliance with
the terms of this Consent Decree shall be signed by an authorized
representative of the Settling Defendant.
XII. SUBMISSIONS REQUIRING AGENCY APPROVAL (8) tJ,..,!/,;;., 15~5 re.c.,-..,pT of.
30. -After revi<?W of~any plan, report or other item which is
, , / -23-•
required to be submitted for approval pursuant to this Consent
--□ecree~ EPA,. after reasonable opportunity for review and comment by {ici t/J £1 r~•(:_. •)t,.r/ 'i/~ // .. I< t~.-->f-7,:::::.. d... / _/4,h~ y--
the State, shall.A (a) approve, in whole or in part, the submission;
(b) disapprove, in.whole or in £prt, the submission, notifying
/"J W/,/'P,) (-t-l,e Sf"½-<-6 ,",) /...!!...''d 7;\c O:Z!l:?5 'l!/?te,.Jt'-J
Sectling De~ojldeficienciest, ic) direet that the Settling //
F,._,/,,,.e., "J ,E,0~ n, a.-....,f w,-,L,,ef,. ,l/;l-~Jn,X. -J,r--<.. 1s:,,,,-"vcJ 51.-
-Defendan~odifl the-,-st1/ u~±ssion; (d) appr e the ~bmission upoR-~ s-1, ru-,4.,, =-f?/o-J'"---re 7'1J <1.-/7/4 '7 1 ,-bf>.,, t ~ , 7t'/)'J -
spec-i-f-±ed--G-Bnd~.u;; (e) roo.-\ity the submission to oure the
defieienoies; -er ( f) any combination -o-f-1=Be-aoove.
31. In the event of approval, approval upon conditions, or
modification by EPA, Settling Defendant shall •proceed to take any
action required by the plan, report, or o·ther i tern, as approved or
modified by liili''< subject =J.;< to its right to invoke the Dispute
R~solution procedures set forth in Section XX (Dispute Resolution),
--with---resp_ect to the modifications--or-eenditions made b~ EPA.
{;/(,TV", .
32. Upon receipt of aAnotice of disapproval or a notice
~
requiring a modification, Settling Defendant shall, within J;f days -B-l'.'-
~ot:ber=t::i:me=-s=;:1e1 i E i ed::=by::=e:P:i\ · 11 s:uch=otiace-;-correct the
deficiencies an~resubmit th~ plan, report, or oth~r item for
c? e_ '/JI» k£ -zL/J,t,. if~-/,:. /e,f. ()/ J 1//Y'i jJ t'b <' ~ r : I'//? i;/P / 9c,-f', 9'>-7 _,(--(' .
approval.L Notwithstand.i,J,2 the notice of disapproval, Settling
i"-f V¼ 5,ff/14 /J (, w ,., tlvi .
Defendant shall/proceed, at the~direction of EPA, to take any action
required by any non-deficient portion of the submission.
-3-3,,,~-+'I..,n>--at he-eve~-a-t-a-re s;,;bmi--t--t-eEl-p l.-a n-,-r-epor-t~-!' o t her-+tem ,-
..O L...po=io n-t he r,<>o f -,-,i.-s -dicsappr-oveci--by-E PA,-EPA-may -again -requ-i-re -t·he
-Set tl-ing--Def-endant-to--cor-rect. -the def i.c ienc.i.es ,.-in-<1ccordanc0 .. wi t:h._
the--precedi-ng-paragraphs ,· --EPA-also-retains--the-----
• -24-• , ... -......
I \_.../
4--i-g~-am&fld--Br--€ieve1-op--the -plan,--report or:-other: item. -Subject
only ~o its·.right -to-invoke procedures set forth in Section.XX--
(Dispute Resolution), Settling Defendant shall implement any such
---plan,---report, or item as amended or developed by EPA.
34. If, upon the first resubmission or upon any subsequent
/ _, . / resubmission, the plan, report, or item is disapproved by EPA,
/
/ Sett:L .. ng Det'endant shall be deemed to be in violation of the --/ ,,./,,.,,. provision of this Con~~nt Decree requiring 7ettling Defendant to
submit such plan, repor'r.,...,~r-item unle/e Settling Defendant
invokes the dispute resolutio'n ... procedures set forth in Section XX
(Dispute Resolution) and this C~~verturns EPA's disapproval
pursuant to that Section, t /prov:isi:-~s· -o_f Section XX (Dispute
resolution) and Section I Stipulated Penalties) shall govern 'the
implementation of
penalties duri
e Work and accrual and payment.of_ any stipulated
--... _ Dispute Resolution. Implementation of 'any portions
of the su issions which are not deficient shall not relieve-~ettling ·-...._
Defe nt of any liability for stipulated penalties under Section XXI
tipulated Penalties).
~~ reports,---and--0tc-her--+t-ems--requ±red to be--sub'nrrnea-··
to EPA under this Cons-en~ee shall, upon approval by EPA be
-------de em ed to be incorporated in and an en-forceable part of this Consent ----Decree. In the event EPA approves a portion o{--a -pla.[l, report, or . ~-
othe_r item required to be submitted to EPA under this --~ Conse,,.-t-·Decree,
---------the approved portion shall be deemed
• • -25-
t.Q __ be __ .incorporated in and an enforceable part of this Consent
' '. __ Decree.---
XIII. PROJECT COORDINATORS (S) ell! r A e L-ffe-,,./Y Jc, Uc--
36. Within 20 days of lodgi1~ this Consent Decree, Settling
Defendant, the State and EPA shall notify each other, in writing,
of the name, address and telephone number of their respective
designated Project Coordinators and Alternate Project
Coordinators. If a Project Coordinator or Alternate Project
Coordinator initially designated is changed, the identity of the
successor shall be given to the other parties at least 5 working
days before the changes occur,:._ unlGlss i.rapracticable, but in ne-
event--1-a ter-t-han-the -ae-t-ua-1--day-t-he----B-hange-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.
37. Plaintiffs may designate other representatives,
I
including, but not limited to, EPA and State ell)p)..oyees, and
. ~~{✓
.federal and State contractors and consultants,At6 obse:C-Ve a;.d
monitor the progress of any activity unde.rtaken pursuant to this
Consent Decree. EPA's Project Coordinator and Alten,c::.te Project
Coordinator shall have the authority lawfully vested in a
Remedial Project Manager (RPM) by the National Contingency Pl.an,
40 C.F.R. Part 300. In addition, EPA's Project Coordinator or
Alternate Project Coordinator shall have authority, consistent
•
-26-
with.the National _Contingency Plan, to halt any Work required by
this Consent Decree and to take any necessary response action
whens/he determines that conditions exist at the site that
-causes-or-chreatens a re±ects.e of Waste Mater±tll~~t constitute
an emergency situation or may present an immediate threat to
public health or welfare or the environment.
38. EPA' s Project:-t'!oordinalvr and---t·he--s-ettling D<lendcnrt'--s
--P-re-jcct Coordi-n-ator shall meet, at a minim=, on a -mont-h-1-y-ba-s±s.
XIV. ASSURANCE OF ABILITY TO COMPLETE WORK ('S)
39. Within 30 days of lodging of this Consent Decree,
Settling Defendant shall establish and maintain financial
security in the amo,_;nt of $151,000 in _one of the following fonns:
a. A surety bond guaranteeing performance for the Worx;
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 corporatio;:s
which have a substantial business relationship with the Settling
Defendant; or
e. A demonstration that the Settlirig Defenda~t passes
financial tes~ specified in 40 C.F.R. Part 265.l43(f).
40. If the Settling Defendant seeks to demonstrate the
ability to complete the Work through a guarantee by a third party
pursuant to Paragr~ph 39.d. of this Consent Decree,
01 G fl¼ I) C{ "/1.,,0 OA__p(/4;'' /CO)
v{--G.. ~ /4e5 ~ {)('Y,y~-4 ~«T L
&. ? ", 1_,<.,,F C:C, IA 0z. /~ .
v-<·. 4 kvi,,(_,IZ<t1 l,..<._ fr "r 40 0{ c._(
• -27-
Settling Defendant shall demonstrate that the guarantor passes
the financial test specified in 40 C.F.R. Part 265.143(f). If
Settling Defendant seeks to0 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 1,;;1-h;;:,I
<;;J),n,ssion Df ;/,;")a;1c.,/::,./ ~Ur§r,C:e
effeotive date of this Consent Decree. In the event that EPA,
after a reasonable opportunity for review and comment by the
reostmab/j
State,4determines at any time that the financial assurances
provided pursuant to this Paragraph are inadequa~,e, Settling
t,; r iffe, 11 · ·
Defendant shall, within 30 days of receipt ofl1 notice of EPA's
determination, obtain and present to EPA for approval one of the
other forms of finc1ncial assurance listed in Paragraph 39 of this
Consent Decree. Settling Defendant's inability tu demonstrate
financial ability to complete the Work shall not excuse
performance of any activities required under this Consent Decree.
XV. CERTIFICATION OF COMPLETION ~J5
41. Completion of· the Response Actions
a, Within 90 days after Settling Defendant concludes
that soil sampling is no longer required and t.lrn Remedial Acti-on
a1cdEZ-the first aper al .1 :nit: bai. been fnl ly poEformcd, 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, SPA and the State. Such
inspection shall be followed by a written report submitted within
30 days of the inspection by a registered professional
• • -28-
engineer and the Settling Defendant's Project Coordinator
certi'fying 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 Proje.ct Coordinc1tor:
"I certify that the infonnation contained in or accompanying
this submission is true, accurate and complete:."
/41,,...L/2,n t{o c/4;s rf /"¾1:,,1'-I-,r/ v'.,L-.v,; ,'ept,,if /--,,m _S::,71/,,.J Ze~00{r"Jf
If, a f Ler comp le Lio It of t-he-pre-cer-t-i-f-ica-t-i-Bn---±nspeet-±-0n-a-nd
r==±-E>'Ec--a-nehc-e-v-i=~-oo~f'-c-'the-=-i--t-t-en---l'.'eper-t,., 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, EP~ shall notify Settling
o/ ~~ fe,r.e_s /2 ;/~ ,/4,Prm//!C;T'AYJ on '.I'
Defendant in.writing,(of the activities that must be undertaken to
complete the Response Actions. EPA shall set forth in tho notice
..a--s c-hed u 1-e--f;er-per.f OI'Illance -o.f-s uch-ac-t-i-v-i--t--ie s-ee ns-i-s-t-e n-t--wi-th--t he . FP/l .
· GGnsen-t-Pecx:00 aAd the sow or. shall require the Settling
Defendant to submit a schedule to EPA for a~proval pursuant to
Section XII (Submissions Requiring Agency Approval). Settling
Defendant shall perform all activities described in the notice in
accordance with the specifications and schedules established
pursuant to this paragraph, subject co its right to invoke the
dispute resolution procedures set forth in Section XX (Dispute
Resolution).
b. If EPA concludes, based on the initial or an}
subsequent Certification of Completion by Settling Defendant and
after a reasonable opportunity for review and comment by the
• -29-w" ,-,';__,
State, that the-Res-ponse-Ae-t--MR-& have been fu.lly performed in
accordance with this Consent Decree, EPA shall so certify in
writing to Settling Defendant. This certification shall
1/V '1/L/L-
constitute the Certification of Completion of the Response
ActioRs.for purposes of this Consent Decree, including, but not
limited to, Section XXII (Covenants Not to Sue by Plaintiffs).
Certification of Completion 0f the Response Actions does not in
any way affect Settling Defendant's re~aining obligations under
this Consent Decree, including, but not limited to, access,
Operation and Maintenance, record retention, indemnification,
insurance, and payment of Future Response Costs and penalties.\
the Work 42. Completion, of
90 days after Set~ling Defendant conclude "'--.~-a_. Within
that. al~ses of tha Work (includtng 0 & xception
of the payme~f Future Response· Costs associa this
paragraph, have bO,;ln fully performed, Set ing Defendant shall so
certify to the Uni~ tes and t State by submitting a
written report by a professional eng-ineer certifying
that the Work, with th exce~tion the requirements of Section
XXVI, has been co in full satisfa ion of the requirements
The report shall cont · the following of this t Decree.
, signed by a responsible corporate officia ~~ettling
endant or the Settling Defendant's pro]ect Coordinator:~ "
Ut9&-,-, /SsJo-/h·e -) ✓/ e...
/ cl'A
/4 d/4---;: J ,,
o-/ ?"he:. ;,,.7t:; 12 le
/I'),-°A J, fe ../4'<::.. / rO Cc"'-S
,/,,-,,, /11 -!'/c.-77 ~ fr~ "c (
//f(.,I 6 ,.-,; I, (2 S
~
\
i ,
I
If,
• -JO-
"I certify that the information contained in or accompanying this submission is true, accurate and complete.
I / the written report, EPA,· af.ter reasonable
'
after re\iew of \ . I opportunity by the State, determines that
any portion of~\ Work, with the exception of the/.quirements
of Section XXVI, has not been completed in a~co/£nce with .this
Consent Decree, EPA \.\11 notify Settling De/.dant in writing of
the activities that mu be undertaken to c mplete the Work. EPA
to\review
shall set forth in then ice a schedule or performance of such
activities consistent with he Consent ecree and the SOW or
shall require.the Settling
for approval pursuant to Sectio
De endan
{I
to submit a schedule to EPA
(Submissions Requiring
Agency Approval). Settling D en nt shall perform all
activities de~cribed in th notice accordance with the
specifications and sch,1 les establis
right to invoke the {spute resolution
d therein, subject to its
ocedures ~et forth in•
Section XX (Dispu
b. I EPA concludes, based on the "nitial or any
subsequent C rtification of Completion by
after a re'5onable opportunity for review ,/'
Setting Defendant and
State,,. that the Work, ..-ith the exception
and co~nt by the
'of ""e -e-•i· -amen~-..... ..... '-j_~ ..... c.. 4 l..~.
I
' Sect/on XXVI has been fully performed in accordance wi'th this
ct."' .
I ,
C;:,n/;er:t Decree, . Ji wr"i'tin:g. I
EPA shall so notify the Settling Defen ant in ·,,
XVI. EMERGENCY REPSONSE .'/J5)
43. In the event of any action or occurrence during the
of
• -31-• perfonnance of the Work which causes or threatens a release of
Waste Material that constitutes an emergency situation or may
present an immediate threat to public health or welfare or the
environment, Settling· Defendant shall, subject to Paragraph 44,
immediately take all appropriate action to prevent, abate, o.r
minimize such release or threat of .release, and shall immediately
notify the EPA's Project Coordinator, or, if the Project
Coordinate= is unavailable, EPA's Alternative Project
Coordinator. If neither of these persons is available, the
Settling D"?fendant shall notify the EPA Emergency Response Unit,
Region IV. Settling Defendant shall take such actions in r?
· 1 ✓-f/,~ G=,r,~r5en"; f(r,:,pr.+tS"-/.J,
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 pur~uant 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 insteadb1_Settlinq Defendant shall reimburse EPA and the
re,t.5 0nt1 Y-<-4',, ,/ /}~ r" r-j -
::5tate al-1/1 costs of the response action not inconsistent with the
NCP.
44. Nothing in the preceding Paragraph or in this Consent
Decree shall be deemed to limit any authority of the United
States, or the State, to take, direct, or order all appropriate
action or to seek an order from the Court to protect human health
and the environment or to prevent, abate1 or minin;.ize an actual
. /;,4~,i,.,> SJ0:;-74/Jt'<-
or threatened rele?se o~ Wa~Mataria.l on, at, or from the Site.
• -32-• X'/I I.
45. Within· 30 days of the effective date of this Consent
Decree, Settling
a. Pay
Defendant shall: •. J-
to EPA~ 4-45 1 464. 5~, plus interest on thtt
-amG1cu1-tr-a-t.-t--he--r-a te es t-abHs-hed-pu-r-s uan t ·· to-CERCLA-Section --1 0 7
f ram -the--date --l-4,s-t-ed-i-n-t-he-de f·in it-ion -of--P as t --Res !:)Ons e-eos ts-to•
-the-effective-date-of--thi-s-Gonsent-Decree, in the form of a
certified check or checks made payable to "EPA Hazardous
Substance Superfund," and referencing CERCLA Nwnber TGB04DPL7
and DOJ Case Number ---,;---' in rei.mbursement of Past l}espo_µse I?~ f {AO~N-4 Dj_ -11;.,, /}c/m 11'} 1:;r/,z,,f, ,.,e. <:)re/?,,..-an Con sc.,,Y-f 1), o/:f J ,¼ . ~ 7-ol-C Costs~ The Settling Defendant shall forward the certified check /
. to EPA Region IV, Attn: Super fund Accounting, P.O. Box 10014 2, ,,-!:;>,-
Atlanta, Georgia 30384, Attn: Collection Officer for Superfund. f/p,-,f. ,1/4 rn ~ The Settling Defendant shall send copies of the check to the
U,,ited States.
46. Settling
and the State for
Defendant shall rei.mburse
('e-t; 5,trlJ" 6 /4, 4 n rJ /) e,,u,. 5 SO f'j allilFuture Response Costs
the United States
not inconsistent
with the National Contingency Plan incurred by the United States
and the State. The United States and the State shall each Jend 8rJ a I) a fl nua. f /xs 15 Settling Defendant a billnrequiring payment that includes an . ~-'CI' ;,. 17.;;, ..;, 1),, > r . appropriateJaccounting of costs, which includes all direct and
indirect costs incurred by EPA, DDJ and the State and their
contractors on a periodic basis. Settling· Defendant shall make
all payments ir. the man11er descr i!::ed in Paragraph ·4 5, within 30
days of Settling Defendant's receipt of each bill requiring
payment·,. except as otherwise provided in Paragraph 4 7.
47. Settling Defendant may contest payment of any Future
r. --..._ ---... :\ . ·--....,-; .. • -33-• U K/-\l
response Costs under Paragraph 46 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 inc.luded .represents costs which
1
./
17 ,::,/2 ,!'A c . ~ I-do c<.</Y! () ,, 7-,,--r '<> 0 1-5 1 r; S Jr,.:,,.'? r1; -r.,,, d rc1 / m , ,, -<-f-
are inconsistent with the NCP/4 Such objection shall be made in c,H 3
writing within 30 days of receipt of the bill and must be
to the United States (if the United States' accounting is
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 in the
manner described in Paragraph 47. Simultaneously, the Settling
Defendant shall establish an interest bearing escrow account---i-H-
a bauk duly. chartered in Llre Slate of. Horth 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 and the State a copy of the
transmittal lett~r 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, ti,e Settling Defenda.nt shall initiate the Dispute
Resolution procedures in Secti6n XX (Dispute Resolution). If
the United States or the State prevails in the disput~, within,7 /5
days of the resolution of the dispute, the Settlir,g Defendant
• -34-•
shall direct the escrow holder to remit the escrowed monies
(with accrued interest) to the United States or the State, if
State costs are disputed, in the manner described in Paragraph
45. If the Settling Defendant prevails concerning any aspect of
the contested costs, the Settling Defendant shall direct the
escrow holder to remit payment for that.portion of the costs
(plus associated accrued interest) for which it did not prevail
to the United States or the State, if State costs are disputed,
in the manner described in Paragraph 45; Settling Defendant
shall be disbursed the balance of the escrow account. ~he
-digpute --r,;,solution--procedures-sBt forth in th±-s-parag-~e{-1-
-be-t-he-e-xe-l-us-i-ve-mee-han-i-sm-f-er-r-eso.l-v-ing diopu-tea--.:-ega~<:! the
.Se.ttling-1).e.£endant!..s-Dbl-igati-0n-te~u-:i;se the-Uni-t-ed States
rand~e State-f=-t-h&i-r~esponse-Cos.ts .. -
48. In the event that the payments required by Paragraph 45
are not made within 30 days of the effective date of this
Consent Decree or the payments required by Paragraph 46 within
30 days of the Settling Defendant's receipt of the bill,
Settling Defendant shall pay interest on the unpaid balance ac
the rate established pursuant to Section 107(a) of CERCLA, 42
u.s.c. S 9607. The inter~~?" P~st Response Costs shall begin ctfl,<f ( .<, d,. 7 <-, . to accrue 30 days after en.trey of the Consent Decree. The
interest on Future Response Costs shall begin to accrue 30 days
after thB ~ettling 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
• -35-• Settling Defendant's failure to make timely payments under this
Section.
XVII. INDEMNIFICATION AND INSURANCE /;/':,)
49. 'l:'he United Se-ate3 end-t-he Stat--e--0e-no1;-a££ume-a-Ay--
--1-i-abJ.-l.i-t y-by-e n te r-i.-ng-i--n to-tj,..i-s -a gr-eement--e r-ey~ny--
'-des~--H>H--o-f-Settl..±ng-Deffinda-nt-a-s-EFA ' s au thor~ed-
---£epre sen tat ives -under-6ec-tt0n---l-04-(-e-)-e-f-€-ERC-Lk;-Sett 1 i ng
Defendant shall indemnify, save and hold ha=less the U~ired
States, the State, and their officials, agents, employees,
contractors, Stlbcontraetors, or representatives for or from any
and all claims or causes of action G-r---GOS-t.6 incrn-l by tho
'--U n-i·t-ed--S ta t-e s--o r· -th e--St-at-€-HI e--±-Udci.-n g-,-hu t--no t-lJ,rni.t.ed-to-,.
-at-tor·neys-fees·,·-and·-ot-her · expenses-e·f-±±.t-i-gat-i-en-and-setc':-l-ement-·
arising from, or on account of, acts or emissions of Settling
Defendant its ·officers, directors, employees, agents,
contractors, subcontractors, and any persons acting on its
behalf or under its control, in ca!. ing out activities ~ursuant
. (I n~(L, ""-±+---=--
to this Consent Decree/\ ineh1ding, ut-flot-d.-imited to_, any--
c J a i rns ar..is.ing-f.r-Gm-any-des-i-gnat-i.-en-of Settling-Defendant-as-
EPA-~s-au t-hGftE-Cd-representat-i-ve-Qnder-Section-Ul4-{~ t-GERCLA~
Neither the United States nor the State shall be held out as a
party to any contract entered into by or on behalf of Settling
Defendant in carrying out activities pursuant to this Consent ,
Decree. Neither the Settling Defendant nor any such contractor
shall be considered an agent of the.United States or the State.
50. Settling _Defendant waives, and shall indemnify al'.d hold
harmless the United .States and the State with respect to, any
DIV\l'T l •
in carrying out activities pursuant to this Consent Decree, except
for actions ordered by EPA's Project Coordinator without the
concurrence of the Settling Defendants' Project Coordinator, -and
executed by the Settling Defendants in a non-negligent manner at
the direction of EPA' s Pro jec_t Coordinator. [Limestone Road Site, ,
Region 3, 1989]. Settling Defendants will not indemnify EPA
against 'the negligent acts or omissions of the EPA, EPA's
employees, agents, contractors or subcontractors, or any persons
acting on behalf of or under the control of EPA. Plaintiff shall
indemnify and save and hold harmles~ Settling Defendants, their
agents, employees, contractors and subcontractors, from any and all
claims or causes of action arising from nr on account of acts or
omissions by Plaintiff, Jts agents, employees arid independent
contractors and subcontractors, and any person acting on-
Plaintiff's behalf or under Plaintiff's control, in carrying out
activities pursuant to this Consent DecrPe.
atjfk/]841]/44001/docs/consent.l
son.Apr11ll:58:071991
,,0
• -36-• claLms for damages or reimbursement from the United States or
the State, or for set-off of any payments made or to be made to
the United States or the State, arising from or on account of
any contract, agreement, or arrangement between Settling
Defendant and any person for performance of ·work on or relating
to the Site, including, but not limited to, claims on account of
construction delays.
51. No later than 25 days after the effective date of this
Consent Decree, Settl~~!~~~i~n~Yi;/✓-5 s%:~'oln~h~ r~e
maintain until the itst anniversary of EPA"s Certification of
Completion--<tt-1=he-Response-Actions--pursuant to Paragraph 42 .b.
of Section XIY. (Certification of Completion) comprehensive
general liability and automotile insurance with limits of l
million dollar, combined si~gle ·limit naming as insured the
United States and the State. In additibn, for the duration ~f
/,,;,sf d,
this Consent Decree, Settling Defendant shall satisfy, or shall
ensure that its contractors er subcontractors satisfy all
applicable laws and regulations regarding the prov.i_sion of
worker's compensation insurance for all persons perfo=ing the
Work on behalf of Settling Defendant in furtherance of this
Consent Decree. Prior to eoffl!lleneement of thc-Wer-k-uru::ler this
Consent Decree, Settling Defendant shall provide~ the
State certificates of such insurance and a cop):'.----°1= each
insurance policy. Settling Defendant shal-Gsubmit such
certi"ficates and copies of p·olic!..es~ year on the anniversary
. ,,·
of the effective date of thi~ Consent Decree. If Settling
Defendant demonstrate; by evidence satisfactory to EPA and the . ,....---
State tha~ contractor or subcontractor maintains insurance -------. ,..
• -37-•
etj-u--i-va-l-e n·t-t--e-t+,-,,,t----o es crib ed -above-, -o r-i-n s u ran c e -co e ,,er i rrg c he ·
same risks ·but in a lesser amount, then, with resoect to that
contractor or subcontractor, Settling Defendant need provide ----. only that p_ort•i~f the insurance described above which is not
maui~ by the contractor or subcontractor. _/
XIX. FORCE MAJE URE (!JS)
52. "Force majeur-e," for purposes of this Consent Decree,
reASor""-b K-
is defined a~ c~y event arising from causes beyond thE)"1COntrol
of the Settling Defendant or of any entity eontrolled by
Settling Defendant, including, but 110L-±buited to, its
contractors and-subcontractors, that delays or prevents the
performance of any obligation under this Consent Decree despite
Settling, Defe1,dant's best efforts to fulfill the o_bligation.
The requirement that the Settling Defendant exercise "best
efforts to fulfill
Settling Defendant
the obligation. The requi~he
exercise "best efforts to ~the ,,.-
obligation" i,.cludes using best effort o anticipate any
'.)Otential _force majeure even efforts to address the
effaces of any po/ force majeure event (1) as it is
occurring and),2-J following the potential force majeure event
such t~-i:(e' delay is minimized to the greatest extent
pos_s-ible. "Force Majeure" does not include financial inability
/
..to complete the Work-.-------
53. If any event 6ccurs 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 Defe1.c!ant
shall notify by telephone EPA's Project Coordinator or, in his
• -38-• or her absence, EPA's Alternate Project Coordina~or or, in the
event both of EPA's designated representatives are unavailable,
the Oirector of the Hazardous Waste Management Division, EPA ".;._ l,J:Yl k_,.-,1 Ch,,/ 5 Region IV, within 48 hours of when Settling Defendant first know re,~ so,,,, bl--1
ornshould 'have known that thp/'."ev~nt might cause delay. Within ,,p-" /0 ✓ -hi,l'_j&>e /i q,,r,<".A?"-..,,9-,.._ working days thgrgafter, 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-co be taken _to prevent or
mitigate the delay or the effect of the delay; tho Settling
~~-±<IBale for attributing -64dBh delay to a--f-or~-
~.frjBu~vent---i-f---±-t~-nte'Hds · to aG-&er--t---suo-h--a--B-1-aJ.m; and a
statement as to whether, in the·opinion of the Settling
Defendant, such event may cause or contribute to an endangennent
to public health, welfare or the environment. 'Phe Settling
9efendant shall include ..,,itll. any notice all availallle
--docnment-at±on-supporting its clabn that the--d~
,attributallle to a f~rce ma+=ure, Failure to comply with the
above requirements shall preclude Settling Defendant from
asserting any claim of force majeure. ---6ettling Defenda~-
be deemed to have notice--o,f-any---c±rcwnstan~---wh±eh--i-ts--·
--B,GH~r---or--subcont-ractor--had--or--s houl-d·-have-had --notice-. ---
54. If EPA, after a reasonable opportunity for review and
_comment by the State, agrees that the delay or antici.pated delay
is attr_ibutable to a force majeure event, -the--t-ime--fo-1:---
-Petio=ianc e--O f.--the -ob lig a t-io_n--under--t-h-i s--Cons en t--D_ecree----t-ha t---i-s -
' ·. -·· ~\. \ • • :__,:; \; '
E/-'i; 0 /) _-/ ~.-~ ?"/✓,;, Ve! ,r? ,d,;,; _; -:; /,-,. ,, // j ·r,;: -r'/c!.,. ,W,)7 .I:. ;0-<; -
affected-by-the-for;::e -inajeure-event -shall be extended-by-written ro £/rou~d<-oo//--r'-1~:t I -r{/Y?.e.. .,-,;. .; /)'/r't_,.. ,o..,,._ /JG<,{".s:.., r'-
-a_ greement -of EPA1 after--a -reasonable;,opportunity for -review and ~ a,-r, pc! ·Vi : ~ I->-/,-yo r>f-:: c,-6 rd,,, j · ·comment !Sy the State-, and the Settling Defendant for such ·time
· as---i·s -necessary---to-complet-e-t-hose·-obl-iga t-ions -a f fect-ed-by--t-he--
·-f&EGB-ma-3eu:H!-event-sha-l-l-Ro-t;-,-,-0.f-i-tse-l-f-ext-en<l-t-he-t-±rne-f-or
perfo:rmance of any-strbseque11t obligation.
55. If EPA, after a reasonable opportunity for review and
comment by the State, does not agree that the delay or
anticipated delay has been or will be caused by a force majeure
event, or if EPA, after a reasonable opportunity for review and
comment by the State and the Settling Defendant does not agree
on the length of the extension for performance of the
obligations affected by a force ~ajeure event, _,EPA shall notify
t,,.,,-l/;1h 5 a}81 lu~ ~5 u ./t!<-~Jd_ the Settling Defendant in writin~of its decision concerning
whether the delay is attributable to a force majeure event or
the length of the extension for performance of the obligations
affected by a force majeure event. If the Settling Defendant
elects to invoke the dispute resolution procedures set forth in
Section XX ( Dispute Resolution) , it ,s,ha).~ dq, so no1 later I t)lan 15 wmL t.,J,.,Ji.,, c:/em,l"j -f-/Jt-/!47J,-e. a/1" U?.-:P:. _.,4n o:uu1-. days after receipt of EPA' _s 11 notice/. In any such proceeding, d~~&emr•
Settling Defendant shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated
delay has been or will be caused by a force majeure event, that
the duration of the
circumstances, that
delay wa;, or
;, {la _jll)d /; IC .
·ee&t: efforts
will be warranted under th~
were exercised to avoid and
mitigate the effecis of the delay, and that Settling DefenJant
complied with the requirements of Paragraphs 52 and 53, above.
-40-• 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 Con~ent Decree identified to EPA and
the· Court.
XX. DISPUTE RESOLUTION JJ5 ~ 56. Unless otberwi se expr.,ssly provided for in this ConseRt w,i ,, {
Deoree, tAg dispute rgsolution px:.oc~duros o.f--th.is-Sacti.on-Shal.l-
~;'';~;s:;;~,?'::2a:0:;;,-;:1J ~::::;::~s!~;'.;;!3;;=;,~~~;;%=5 l~:1e' -I
w-i-t.hff-e&peet te~£ent-Becreei and shal 1 apply to all
11'),-/, 011'1 ~,( 04 II
1)1'.'6v±£-:i:ens-o,.,£1'-tH,h.fi-,,s.-fC1<0.,,r,r,-,ss-ee1i11rtt,-!0~e~c=r..,e..,e,-.,.--
57. Any disput;3 wh.i,ch arises under ':5,,-.".:'.iJ:h respect to this 10 ,.
I / ndd o-f" 1 ,;-1?'1 "'~ 11/ ca-L>k a /,P6' ,w Uf? -5 &> ~ ;,,=:::,I) /l"P rJ -/5 I r,CJ r pn c;_ -fos.d /J' re 1
'
Consent Decree.&sall in the first ).nstancE;1 be .t.)1<;...sµbj,ect of / Y4 ,;ric/ -/1e Se#,'¥. lkfer;:f(i() r 1 _ ·
infomal negotiations .between the4partios t the dispute, The
period for informal negotiations shall not exceed 20 days from
is extended by agreell\ent
of~~~~~~;;~;;-~~~fs~~~~~Tih~e~dispute shall be considered
to have arisen when one party notified the other parties in
writing that there is a dispute.
58. In the event that the parties cannot resolve a dispute
• • -41-
--0pinion-supporting that position and any documentation relted -
---upon·-by-the--Set tl ing Defendant.
--S-9....--F-0=ia-l-G-ci.s pu-lce--1:e so-l-u t-io n-f o r-di-s pu tes~pe rtfri-n-i-n-g-to-/'
the selection or adequacy of any response action and al/{er
disputes which are accorded review on the administr~e record
/ under applicable principles of administrative 1 ✓shal: be
conducted pursuant to the procedures set f h in tr.is
paragraph. For purposes of this Para aph, the adequacy of a:·.y
/
response action includes: (1) adequacy or appropriateness of
requiring approval EPA under this Consent Decree; and (2) the
adequacy of re~ onse actions performed pursuant to this Consent
Decree. N hing herein shall be construed to allow any dispute
, a. Thc-aeministrati"e f£C~~disputc_J,ba~
maintained by EPA and so shal -H:-s atements of position,
• -42-• I
\ c. The Director of the Waste Management Division, EPA
' Regioil IV, shall issue a final administrative decision resc:'lving
/
the dispute which shall be based en the Administrative a,cord.
This deci ion shal.l be binding tipon the Settling Def~ant
subject onl to the right to seek judicial review ptlrsuant to
paragraphs 59 d. and 59.e.
d. Ari administrative decision by EPA pursuant to
Paragraph 59.c. all be reviewable by this CUL~, provided that
a notice of judici l appeal is filed by the Settling Defendant
with the Court ands rved on all Parties
receipt of EPA's deci~on. The notice
ithin 10 days of
f judicial appeal shall
include a description of the matter i dispute, the efforts made
by the Parties to resolve ·t, the r lief requested and the
schedule,,if any, within whi ht
ensure orderly implementation
dispute mu3t be resolved to
thii Consent Decree. The
United States may file a res ns to Settling Defendant's notice
of judicial appeal.
e. In proceedi gs on an;· d:i: pute pertaining to the
selection '·or adequacy f any response a tion or any other·
dispute which is ace rded review on the a inistrative record
under applicable inciples of administrati law, Settling
Defendant shall ave the burden of demonstrati that the
decision oft e Waste Management Division Directo\ is arbitrary
and capric/'Gs or· otherwise not in accordance with · aw.
Judicial /eview of. EPA's decision shall be on the adm'nistrative
pursuant to Paragraphs 59.a. and 59.b.
\ ' . • • ' -' _,.., _, I
I ' 1' \ 1 \ ,
-43-
._..,
60.. Fonnal dispute resoluti.on for disputes not pertaining /
to the selection or adequacy of any response action or which afe
/
not otherwise accord<cd review on the administrative record/under
applicable principles of administrative law, shall be g~~rned
by this paragraph.
a. Follo~ing receipt of Settling Defenda t's statement
of position submitted pursuant to Paragraph 58, he Waste
Management Division Director shall issue a f' al decision
resolving the dispute. The Waste Manageme t Division Director's
decision shall be binding on the Settli Defendant unless,
within 10 days of receipt of the deci ion, the Settling
Defendant files with the Court and erves on all Parties a
notice of judicial appeal setti forth the matter in dispute,
the efforts made by the Parti to resolve it, the relief
requested and the schedule, if any, within which the dispute
must be resolved to ensu orderly implementation of the Consent
Decree. A copy of the otice shail be served on the United
States prior to or c ntemporaneously with the filing of the
notice with the C rt. 1"he United States may file a response to
Settling Defend t '.s notice of judicial appeal.
b. dicial review of any dispute which does .not
pertain to e selection or adequacy of any response action
shall be overnect by applicable provisions of law. In any such
procee,51 ng, .. the Settling D.efendant · shal 1 bear the bur.den of
I .
comi;,t forward with' evidence and the burden of persu.asion on
I fa,::'tc.al · issues. I'
• -44-• 61. Notwi ths tar.ding the invocation o.f-the procedures stated
in this Section, Settling Defen.dil.~l continue to perform
its obligations Qilde~sent Decree, including those that
are n or not substantially affected by the disputed
ssue.
XXI. STIPULATED PENALTIES (;(IS)
62. Settling Defendant shall be liable for stipulated
penalties in the amc·.:nts set forth in Paragraph 63 · to the United
tJR... States aR~ the State for failure to comply with the requirements
of this Consent Decree specified below, unless excused under
Section XIX (Force Majeure). "Compliance" by Settling Defendant
shall inr.lude completion of the activities under this Consent
·and any plans or other docwnenta app:r:ooed by EPA pursuant Lo
<this Consent Decree and within the specified tbne scltedules
established and appro~ed under this Consent Decree.
6 3. The following stipulated penal ties shall :be
o/1..
violation per day to the United States and the State
payable,ler /4 . .;re,.
for ttftY
noncompliance dentified below:
Penalty Per Violation
Per Da
$15,000
25,000 '7 c,OO /
30, ooo /t;, !Jo 0
Period of Noncc.apliance
lst thru 14th d;,.y
15th
45
~st
thru ~th day
day & beyond
• • -45-
Th~ following stipulated penalties shall be payable per
viol~tion per day to the United States and the State for failure
to submit timely or adequate reports:
Penalty Per Violation
Per Dav
~ 2-so
2,000 Sc'JO
3 . 0 0 0 / ,!)!)c)
Period of Noncompliance
1st thru
thru
14th
~th
day
day 15th
~st day & beyond
6 4: · In the event tha-t-E-Pk-t1'3"9'Uroe3 per formauc
or all the Work pursuant to Para of Section XXII
65. All penalties shall begin to accrue on the day
611
complete perfo=ance is due or~the day a violation occurs,
... · unf')
and shall continue to accrue t~reugh the final day-&€ the /::, w r re,o/4cl · ·
correction of the noncompliance or completion of the activity.
Nothi~g herein shall prevent the simultaneous accrual of
separate penalties for separate violations of this Consent
Decree.
66. Following EPA's determination that Settling Defendant
has failed to comply with a requirement of this Consent Decree,
EPA shall g.i;,e ~ettling Defendant written notifj_cation of the
5fOG, t : c.c. I '1 .
same anct,,, describe the noncompliance. This notice shall also
indicate the amount of penalt.~es clue and whether th2 penalties
a re continuing to accrue . . lc!Gw&¥e•:tc ,-pena-l-t. i es s ha.,l_-l-ai;me-aa-,;s>----
• -46-• ...p:covi.ded-icn--tha-pi;eced.i--ng-pai?agr--aph--regardles s -o E -whether---EPA--
-has -not.-i-E-ied-the--Settling--Defendant -of a violation.
67. All penalties owed to the United States under this
unless Settling Defendant invokes the Dispute Resolution
procedures under Section XX (Dispute Resolution). All payments
under this Section shall be paid by certified check made payable
to "EPA Hazardous Substances Superfund," shall be mailed to EPA
Region IV, Attn: Superfund Accounting, P.O. Box 100142, Atlanta,
Georgia 30384, Attn: Collection Officer for Superfund, and
shallreference CERCLA Number TGB04DPL7 and DOJ Case
Number ______ . Copies of check(s).paid pursuant to this
Section, and any accompanying transmittal letter(s), shall be
sent to the United States as provided in Section XXVII (Notices
and Submissions).
68. Neither the invocation of dispute resolution procedures
under Section XX (Dispute Resolution) nor the payment of
penalties shall alter in any way Settling Defendant's obligation
to complete the performance of the Work required under this
Consent Decree.
6 9. Penalties shall/1. contin,ic to accrue as provided in / 1 /" / /
!J,r, ./:0 --1""'2 45,(., Y r
Paragr1;pl;l 65 diµigg jlny dispu>-e resolution period.A G_ut nee~-1,;0 A Se-H, ,..,, l->2fr. ,,fk ,rt It-« ;,A.,fJ"f ~ 1 -; c,c-l) J_ ~ 1 f 1 / 'i ,, /? ,J o /4, "5 r' {J
--®_p..aid-lin.ti-l-t-he.-f?~-i-og · _ CJ I -..... .
~----cI--f-the_dis.µu.t..e_is~__x_e_s_olv::ecL.by---agretiment or by·_
• -47-•
-deci.3iun-o~r 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 th~//court determines are
owed to EPA within 15 days of rece-ipt of the Court's dee is ion or /
order, except as provided in,,~paragraph C below;
/ c. If the Disyict Court's decision is appealed by any
party, Settling Deferrcra:nt shall pay all accrued penalties into
an interest-bear~escrow account within 15 days of receipt of ,/
/ the Court :,.s-· decision or order. Penalties shall be paid intothis /
acco~/as they continue to accrue, at least every 60 days.
/ Within 15 days of receipt of the appellate courtdecision, the , . . &~raw agent shall
Settling Defendant
~balance of
to the extent that
the account to EPA or to
it prevaiTu.
70. 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 unpa~d balance, which shall; ,4!)//"<-JIJ ,,:_,:;,,_,;:,f j-uJ,,},erJ /)ol'•< "--J"J
begin to accrue at the end of the thirty-day period/at the rate~io/G
'YI' est,9bl~hfi!d_;bY t;,he Dep9 rt,nE}nt of T;:easu:r;y, under 31 U.S.C_. :; 3713 ,,-, ft xll/15. l}?f(>/}(,,f,,ij /4:to ;,n9,)/<,ecf --Ae of.11J7t, YCJG/J't,-tfc Jl~f'eS 'y5,:,cf,J',,,7::Ef .5-f--{ and ,10 C.F.R. 102.13." Settling Defendant shall furthdr pay a ~
~a-ndl-bR-g-G-ha£ge-e-f 1--per-Ge~-{ l "7-,-to--£Je as-sessed-,,,.-..t;-i=h~-en€!-of-
-eaG-A---J-0..-day late period, and a 6 percent ( 6 % ) per annum penalty
be construed as prohibiting, altering, or in any way limiting
the ability of Plaintiffs to seek any other remedies or
sanctions available by virtue of Settling Defendant's violation
deductible for Federal tax purposes.
XXII. COVENANTS NOT TO SUE BY PLAINTIFFS (A/5)
72. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendant
under the terms of the Consent Decree, and except as
specifically provided in Paragraphs 73, 74, and 76 of this
Section, the United States covenants not to sue or tq ·
bi I '-f ._5 :5 u,, <--~ J Is '< s.S o/ "
tak~administrative action against Settling Defen an pu t ;/J5 U'
+n/ i2c,,f?il..J 7ot1$, 4'2-USG .J6773
Sections 106 and 107(a) of CERCLAAfor performance o~ the Work
and for Recovery of Past Response Costs and Future Response
Costs. Except with respect to future liability these covenants
not to sue shall take effect upon the receipt by EPA of the
payments required by Paragraph 45 of Section XVII (Reimbursement
of Response Costs). With respect to Future Liability, these
• • --=-•-----\ ,\ ' l
i ··< '.....i :-
-49-1_,1 1 \ / '1 i
of.Section XV. (Certification of Completion) These co,..-enants
not to sue are conditioned upon the complete and satisfactory
performance by Settling Defendant of its obligations under this
Consent Decree. These
Settling Defendant and
Future Liability shall mean any response actions which are
beyond those _that were selected by the ROD for Operable Unit 2
or are set forth in the SOW.
73. United States' Pre-certification reservations.
Notwithstanding any other provision of this Consent
Decree, the United States reserves the right to institute
proceedings in this action or in a new action, or to is~ue an
administrative order seeking to compel Settling Defendant (1) to
perform additional response actions relating to the Site or (2)
to reimburse
if, prior to
,4, .L:,e_ w ,..._, Jc
t1.ens:
the United States for additional costs _oj response / / .
&d.7-c,.,f, J ~ le 7> :r----cert if ic at ion of completion of the Response
(i) conditions at the Site, previously unknown to
the United States, are discovered after the entry
of this Consent Decree, or
. jJ t8Ji tfU!, 0 ft ;J C i,D 0
( ii)IJ information is received, in whole or part,
after the entry of this Cons_ent_ Decree,_
and these previously unknown conditions or this information
together with any other relevant information indicates that the
• 50-• J
0
Response Actions are not protective of hwnan health and the
environment.
74. 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) lo ,ei.Jrburse the United
States for additional costs of response if, :bsequent to
certification of completion of the Response .. ~ions:
( i)
the
conditions at the Site, p;::eviously unknown to
Ir) ;g;,,---5'fijl(;
United States-. are discovered .after the
certification of completion, or / '""''=?" /4 /1 , ,/.J YI
(ii)11 inf.:irmation is rer.eived, in whole or in part,
after the certification of completion,
and these previously unknown conditions or this information
together with other relevant informatian indicate that the
Response Actions are not protective of human health and the
environment. The above-mentiuned reservations of rights in this
Paragraph and Paragraph 73 include the right to institute
c. liability for damages for injury toi destruction of, or
loss of natural resources;
d. liability for Response Costs that have been or may
-be incurred by the U.S. Department of the Interior;
• 51-
e. criminal liability;
f. liability for violations of federal or state law
which occu::: d.uring or after implementation of the Response
Actions;
g. Previously incurred costs of response above the
amounts r2imbursed pursuant to Paragraph 45; and
h. liability for additional operable units at the
Site.
77. 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 pr0vision of the Work in an adequate or timely
manner, as arbitrary and eaprieious or otherwise rrnt in
aecordance ~±th la~. Sueh dispute shall be resolved on the
administra::ive reeerd.. Costs incurred by the United States in
performing the Work pursuant to this Paragraph shall be
considered Future Response Costs for the purposes of Section
XVII (Reimbursement of Response Costs).
78. Nothwithstanding any other provision of this Consent
Decree, the United States anrl the State .retain all authority
andreserve all rights to take any and all response action
authorized by law.
• -52-•
XXIII. COVENANTS BY SETTLING DEFENDANT {r-15)
79.
. ,C,, tl'>V;
Settling Defendant hereby covenants not to sue -and
-.ag=aS-no t-to--a s se I?-to--an y-cl a·ims -or-ca ,ises--o f-ac t-ion-aga±ns-t the
Poited Stat.io. or the State related to or arisiRg from any
:r.isoponse action talcen with~-he--S±te or this Consent
Deeree, including, but net limited te, any direct or indirect
claim for reµnbursement from the Hazardous Substance Superfund £;ts
e s:--/4 6 Its he. cl fJ.<--1--1-S u a~ f /o 5 ~ a+> ?-2-I ;r C B /2,U-,1 'r z ,_; · 5 c -J
(established -pttl'S11-an-t-t-e-t-he--I-n-t-ernal-Revent1e--€ee.e,-2 6_; U.S. C. S
9507) through CERCLA Secti-ons--l-&6(b) (2), 111 or 112 or auy other
'prevision of law, ~ee-k--afly--ether cests,---demttg~r--
atterneys fees from--t-he--Yn-i-te<l--S-tates or tAe--SN-t-e-a.r-i-s±ng out
-0£ response acl;-iv~hl-es-a~Hle-&i-t;e-.-Nothing in this Consent
Decree shalL be deemed to constitute preauthorization of a claim
within the meaning of Section 111 of CERCLA, 42 U.S.C. S 9611,
or 40 C.F.R. S 300.25(d).
XXIV. EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION
80. Nothing in this Consent Decree shall be construed to
create any rights in, or grant any cause of action to, any
pe~son not a party to this Consent Decree. The preceding
sentence shall not be construed to waive or nullify any rights
that any person not a signatory to this decree may have under
applicable law. Each of the Parties expressly reserves any and
all rights (including, but not limited to, any right to
co~tribution), defenses, claims, demands, and causes of action
which each party may have with respect to any matter,
• • -53-
transaccion, or occurrence relating in any way to the Sice
against any person not a party hereto.
81. With regard to claims for contribution against Settling
Defendant for matters addressed in this Consent Decree, the
• I parties hereto agree that the Settling Defendant is entitled, as
of the effective date of this Consent Decree, to such protection
from contribution actions or claims as_ is provided by CERCLA
Section (f)(2), 42 U.S.C. S 9613(f)(2), and CERCLA Section
12 2 ( g) , 4 2 U.S. C. S , 9 6 2 2 ( g) .,
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 and the State within 10 days
of service of the complaint on them.
83. In any subsequent administrative or judicial proc·2eding
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 upc~ the principles
of waiver, res judicata, collateral estoppel, issue preclusion,
claim-splitting, or other defenses based upon any contention
• -54-• that the claims raised by the United States or the State in the
subsequent proceeding were or should have been brought in
theinstant case; provided, however, that nothing in this
Paragraph affects the enforceability of the covenants not.to sue
set forth in Section XXII (Covenants Not to Sue by Plaintiffs).
XXV. ACCESS TO INFORMATION
84. Settling Defendant shall _r:µ=ovide
. () 'tf), -1!,, v I l&feo' ·
upon request, copies of all~documents and
to EPA and the State,
information within its
possession or control or that of its CQntractors or agent x
. -fl,µ, 1 M-'. -/u,. ~ </J ~ C 07,,9'--T (.leC/"c ~
relating to activities at the Site~or to th~ implementation of
this Consent Decree, including, but not limited to, sampling,
analysis, chain of custody records, manifests, trucking logs,
receipts· reports, sample traffic routing, correspondencfr, or
other documents or information related to the Work. Settling
Defendant shall also make 9vailable to EPA and the S~ate, for
• 1Z{;{ ~7 C-gl,<.,,/'~ct-,.'U!.. wrrz; ~ ~ Jec/-U'..,
purposes of f\i ouest~ation, i11£orma.t ion gathering or toSti.nloi•l~f,
its employees, agents, or representatives with knowledge of
relevant facts concerning the performance of the Work.
85. 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. S 9604(e)(7), and 40 C.F.R. 5 2.203(b). Documents or
information dete.1.--:nir.ed to be confidential by EPA will be
afforded the protection specified in 40 C.F.R. part 2, Subpart
B.
• -55-•
If no claim of confidentiality accompanies documents or
information when they are
EPA has notified Settling
submitted to EPA and the State, or if
/n 41(11,f\ki
Defendant1that the docwnents ot
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.
86. No claim of confidentiality shall be made with respect
to any data, including, but not limited to, all-sampling,
analytical, monitoring, hydrogeologic, scientific, chemical, or
engineering data and materials or information submitted pursuant
to this Consent Decree, or any other documen~s _or information
~f Cv'--< -I[---,_ 4v--vj--<-J-o'j rk-v.,. ~~7 0 ~c,,-e..e__
evidencing conditions~at or around the Site.
XXVI. RETENTION OF RECORDS
87. Until 10 years after the Settling Defendant•~ receipt
of EPA's notification pursuant to Paragraph 42 of Section xv.
(Certification of Completion), Settling Defendant shall preserve
and retain all records and documents now in its possessior or
control or which come into its possession or. control that 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 S_.i.te, 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
• -56-• 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 sech record
ordocuments, and, upon request by the United States or the /
nFJ11-1rivilejt
State, Settling Defendant shall deliver any suchfrecord3 0r
documents to EPA or the State. The Settling Defenciant may
assert that certain documents, records and other Jnformation are
privileged under the attorney-client privilege or any other
privilege recognized by federal law. Ho1Jever, all docl.lll\Gnts,
reeords or information erea-wa, generated or collected pc.rsuant
-to th~ tGrms of the Consent Decree shall .-iot be withheld ofl. the
grounds that they iU::G p:r;iuilGgGd
88. Settling Defendant hereby certifies, individually, that
it has not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, documents or other information relating
to its potential liability with regard to the Si~e sinc.e
notification of potential liability by the United States or the
State or the filing of suit against it regarding the Site and
that it has fully complied with any and all EPA requests for
information pursuant to Section 104 (e) and. 122 (e) of CERCLA and
section 3007 of RCRA.
• • -57-
XXVII. NOTICES A.ND SUBMISSIONS (e)
89. Whenever,.•under the t.erms 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 catisfaction of any
written notice requirement of the Consent Decree with respect
tothe United States, EPA, the State and the Settling Defendant
respectively.
As to the United States:
David Buente
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044 Re: DOJ t _______ _
and
Donald J. Guinyard
Direct·or, Waste Management Division
United·· States Environmental Proteci::ion Agency
Region IV
345 Courtland Street, N;E.
Atlanta, Georgia 30365
As to EPA:
Barbara Benoy
EPA Project Coordinator
United States Env iron."!lental Protect ion Agency Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
• -58-
As to the State:
William Myer, Director
Solid W~ste Management Section
Dept. of Environmental Health &
Natural Resources
P . 0. Bo X 2 0 9 1
Raleigh, North Carolina 27603
State Project Coordinator
[Address]
As to the Settling Defendant:
Alexander M. Samson, Jr.
Counsel, Regulatory Affairs
National Starch and Chemica~ Company
10 Finderne Avenue
P.O. Box 6500
Bridgewater, New Jersey 08807
•
XVIII. EFFECTIVE DATE {6)
90. The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court
except as otherwise provided herein.
XIX. RETENTION OF JURISDICTION (13)
91. This Court retains jm::isdiction 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
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 )
res.olve disputes in accordance with Section XX ( Dispute
,Resolution) hereof.
'?,'./ (--;?
\ XXX. APPENDICES c;; 2)
92. The following appendices are attached to and
incorporated into this Consent Qecree:
• Appendix A• . is the ROD.
•
Paragraph XXIY..
Retention of Jurisdiction
9 1 . 1
EPA and the State and_:3ettling gefendantg' each retain their
::;
own right to enforce the terms of this decree and take any action
authorized by federal or state law not inconsistent with the terms
of this decree to achieve or maintain compliance with the terms
and conditions of this decree.
91. 2
Subject to Section XVI (Emergency Response), EPA and the
State reserve all claims, demands and causes of action, past or
future, judicie.l or administrative, in law or equity, including
b11t not limited to response action under CERCLA, cost ·_recovery and
injunccive relief and natural resources damages, against any
person or entity, inclu.ding settling defendant, for any matters
not covered under this decree. EPA and the State and ~ettling
defendant each hereby expressly reserve any claims o.c defenses
which they may have against any other person or entity not a party
to this d1c,cree, including but not limited to, clairns foe: in,~emnity
.or contribution.
atjfk/39004/,14002/ inserts/para :o. ix
·Hrrn.Apr 22 15:52:37 !991
• -59-•
''Appendix B" is the SOW.
"Appendix ·c· is the model notice letter as specified
in Paragraph 9.b.
\
XXI. COMMUNITY RELATIONS (i!>)
£-U,,;1 ~~--/4 .w, r/-i
93. Settling Defendant &h-a-11 ~re and submit to EPA and -po ,,0 re) u ;/e_,
the State,a-ee~-en5-frl-an--<leseribing the activ-i--t-ies
th-r-Settliag l'lefeada11t will 11ndertake to disseminate /JoJ?;'l"'1i/1 le;~
infomation regarding the Work to the public. Upon its
-app~rz' ~~~ ::ter a reas=able opportunity for review and
,£1.:s r'f~~t1tf:Si, Settling Defendant shall participate in
the preparation of such information for dissemination to the
public and in public meetings which may be held or sponsored by
EPA or the State to explain activities at or relating to the
Site.
XXXII. MODIFICATION (5)
94. No modification shall be made to this Consent Decree
without written notification to and written approval of the
United States, Settling Defendant, ·-and the Court. Prior to
providing its approval to any modification, the United States
shall provide the State with a reasonable opportunity to review
and comment on the proposed modification.
95. No material modifications shall be made to the SOW,
without written notification to and written approval of the
United States, Settling Defendant, and the.Court. Prior to
providing its approval to any modification, the Un!te6 States
• • -60-
sh~ll provide the State with a reasonable opportunity to review
and comment on the proposed modification. Modifications to the
SOW, that do not materially alter those documents may be-made
by written agreement between EPA, after the State is provid_ed
with a reasonable opportunity to review and comment on the
proposed modification, and the Settling Defendant. No oral
modification of this Consent Decree shall be effective.
96. Nothing in this paragraph shall be deemed to alter the
Court's power to supervise or modify this Consent Decree.
\
XXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT (8)
97. This Consent Decree shall be lodged with the Court for
a period of not less than thirty (30) days for public notice
andcomment in accordance with Section 122(d)(2) of CERCLA, 42
U.S.C. S 9622(d)(2), and 28 C.F.R. S 50.7. The United States
reserves the right to withdraw or withhold its consent if the
comments regarding the Consent Decree disclose facts or
considerations which indicate that the Consent Decree is
inappropriate, improper, or inadequate. Settling Defendant
consents to the entry of this Consent Decree without further
notice.
XXXIV. SIGNATORIES (6)
98. Each undersigned representative of .the Settling
Defendant to this Consent Decree and thi Assistant Attorney
General for Environment and Natural Resources of the Department
of Justice certifies that he or she is fully authorized to
• -61-• enter into the terms and conditions of this Consent Decree and
to execute and legally bind such party to this document.
9 9-. --The-Sett-1-ing-Def end an t--hereby-agree s--not--J",o.-oppos e ---------entry of this Consent Decree by-thl~-court or challenge any
provision of this~e~ee unless the United States has
notifi~~ling Defendant in writing that it no longer
~f-the--C-eruien-t--Deeree.
100. The Settling ~efendant shall identify, on the attached
signature page, the name and address of any agent who is
authorized to accept service of provess by mail on behalf of
that party with respect to all matters arising under or
relatingto this Consent Decree. Settling Defendant hereby
agrees to accept serv.ice in. that manner an9 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 _________ , 19 91.
· · United States~~rict Judge
THE UNDERSIGNED PARTIES enter into this Con~ Decree in the
matter of United States v. National Starch~-~~emic~l~--r-o-□-r-a-•t~±-u-1-1,-
relating to the ·National Starch Super fund i te. C.(//,t.'/a·/
•
Date:
-62-• FOR THE UNITED STATES OF AMERICA
Richard B. StE~art
Assistant Attorney General
Environment and Natural
Resources Division
U.S. Department of Justice
Washington, D.C. 20530
David Buente
Environmental E~forcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington D.C. 20530
Assistant United States Attorney
Western District of North Carolina
U.S. Department of Justice
[Address]
Ray Ludwiszewski
Assistant Administrator for
Enforcement
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
Greer Tidwell
Regional Administrat~,r, Region IV
' U.S. Environmental Protection
Agency
345 Courtland Streec, N.S.
Atlanta, GA 303€5
Reuben T. Bussey, J'c.
Assistant Regional Counsel U.S.
Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
-63-
United States .• National Starch & Chemi. Corporation
Consent Decree Signature Page
Date: ______________ _
FOR THE STATE OF NORTH CAROLINA
William Myer, Director
Solid Waste Management
Section
Dept. of Environmental Health
& Natural Resources
P.O. Box 2091
Raleigh, North Carolina 27603
'. •• -64-•• THE UNDERSIGNED PARTY enters into this Consent Decree in the
matter of United States v. National Starch Chemical Corporation,
relating to the ~acional Starch & Chemical Corporation Superfund
Site.
FOR NATIONAL STARCH & CHEMICAL CORPORATION
Date: __________ _
Alex Samson
Counsel, Regulatory Affairs
National Starch & Chemical
Corporation
P.O. Box 6500
Bridgewater, NJ 08807-3300
Agent Authorized to Accept Service on Behalf of
Above-signed Party:·
Name:
Title:
Address:
.Alex Samson
Counsel, Regulatory Affairs
National Starch & Chemical
Company
P.O. Box 6500
Bridgewater, NJ 08807-3300
*I A separate signature page must be signed by each
corporation, indiv~dual or other legal entity that is settling
with the United States. · ·
• • • UNITED ST ATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA 30365
RD/RA GENERAL NOTICE LETTER AND
NOTICE OF DECISION NOT TO USE SPECIAL NOTICE PROCEDURES
URGENT LEGAL MATTER--PROMPT REPLY REQUESTED
CERTIFIED MAIL RETURN RECEIPT REQUESTED
March 25, 1991
Mr. A.M. Samson, Jr., Esquire
Counsel, Regulatory Affairs
National starch & Chemical Corporation
10 Finderne Avenue
Bridgewater, New Jersey 08807
RE: National Starch & Chemical Corporation Site
Salisbury, North Carolina
Operable Unit 2
Dear Mr. Samson:
This letter notifies you that pursuant to the authority provided under
section 122(a) of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), the United states Environmental Protection Agency
(EPA) has determined not to use the special notice procedures outlined in
Section 122(e) of CERCLA, in regards to negotiations with you relative to
Operable Unit 2 (the trench area).
Specifically, this letter serves three purposes: first, to demand
reimbursement of response costs that have been incurred at the Site,
including interest thereon; and second, to notify you that a 30-day period of
negotiation with the EPA automatically begins upon receipt of this letter
which EPA has deemed to be seven (7) calendar days from the date of this
letter; and third, to provide general and site-specific information in order
to assist you in the negotiation process, specifically a draft Consent
Decree, a copy of the Record of Decision for Operable Unit 2, and a Scope of
Work.
NOTICE OF POTENTIAL LIABILITY
Potentially responsible parties (PRPs) under CERCLA include: the current
owners or operators of the Site; persons who at the time of disposal of
hazardous substances owned or operated the facility; persons who by contract,
agreement, or otherwise arranged for disposal or treatment, or arranged with
a transporter for disposal or treatment of hazardous substances; and persons
who accept or accepted any hazardous substance for transport to disposal
facilities and selected such facilities. Under CERCLA and other laws,
potentially responsible parties may be liable for all funds expended by the
Printed on Recycled Paper
• •
-2-
United states government to take necessary corrective action at the Site,
including planning, investigation, cleanup and enforcement activities
associated with the Site. In addition, potentially responsible parties may
be required to pay damages for injury to natural resources or for their
destruction or loss, together with the cost of assessing such damages.
Based on information received during the investigation of this Site, EPA
believes that you may be a responsible party under section 107 of CERCLA, 42 u.s.c. § 9607(a). Before the United states government undertakes further
response actions, EPA requests that you voluntarily perform the work
necessary to prevent any releases or threatened releases of hazardous
substances from the Site.
DECISION NOT TO USE SPECIAL NOTICE
Pursuant to Section 122(a) EPA has determined that it is not necessary to invoke the discretionary Section 122(e) special notice procedures to
facilitate an agreement between you and the Agency. It is believed that the
negotiations would be best served by a less formally structured negotiation
period under 122(a). The decision to use 122(a) procedures is due to the
limited nature of the work to be conducted under Operable Unit 2.
NEGOTIATION PROCEDURES
EPA encourages good faith negotiations between you and the Agency regarding
the response actions required at the Site for Operable Unit 2. EPA has
determined that a shorter, less formal period of negotiation would facilitate settlement between you and the Agency. Therefore, pursuant to 42 u.s.c. § 9622(a), a 30-day moratorium on certain EPA response activities at the Site will begin seven (7) calendar days from the date of this letter. During this 30-day period, you, as the PRP, are encouraged to voluntarily negotiate a settlement with the Agency to conduct or finance the response activities
required at the Site. The 30-day negotiation period will be extended for an
additional 30 days if, within the initial 30-day period, you provide EPA with
a good faith offer to conduct or finance the RD/RA. If a settlement is
reached between you and EPA within the 60-day moratorium period, the
settlement will be embodied in a Consent Decree for the RD/RA.
A good faith offer is a written proposal which_demonstrates your
qualifications and willingness to conduct or finance response actions
required under Operable Unit 2. A good faith offer to conduct or finance response actions will include the following elements:
1. A statement of willingness by the PRP(s) to conduct or finance
response actions which is consistent with the enclosed draft Consent
Decree, Scope of Work, and Record of Decision and which provides a sufficient basis for further negotiations.
2. A paragraph by paragraph response to the draft Consent Decree and
Scope of Work.
•
-3-
3. A demonstration of your technical capability to carry out response
actions including the identification of the firm(s) that would be
used to conduct the work or a description of the process that will
be used to select the firm(s).
4. A demonstration of your capability and willingness to finance the
required response actions. Financial capability may be established
by any one, or any combination of the following subject to current
Agency policies: insurance, guarantee surety bond, letter of
credit, or qualification as a self-insurer.
5. A statement of your willingness to reimburse EPA for costs incurred
in overseeing the conduct of the response activities.
6. The name, address and telephone number of the party who will
represent you in negotiations.
Enclosed are copies of the draft Consent Decree, the Record of Decision for
Operable Unit 2 and the Scope of Work. These are provided to assist in the
development of a good faith offer.
Pursuant to Section 122 of CERCLA, 42, U.S.C. § 9622, if a good faith offer
is not received within the initial 30-day period, EPA may take appropriate
action at the Site. However, EPA reserves the right to take action at any
time at the Site in the event that a significant threat requiring EPA's
immediate response arises.
SITE RESPONSE ACTIVITIES
At present, EPA is planning to conduct the following studies and activities
at the site:
Trench area soil monitoring.
ADMINISTRATIVE RECORD
Pursuant to Section 113(k) of CERCLA, EPA has established the administrative
record which contains documents that form the basis of EPA's decision on the
selection of a response action for the Site. This Administrative Record is
available at the Rowan County Public Library, 201 West Fisher Street,
Salisbury, North Carolina. The Record is also available at EPA's Regional
Office in Atlanta, Georgia.
• •
-4-
DEMAND FOR PAYMENT
In accordance with CERCLA, EPA has already undertaken certain actions and
incurred costs in response to conditions at this Site. Those response
actions include Site Investigations, a Forward Planning Study, and oversight
of Remedial Activities. The cost to date of the response actions performed
at the Site through EPA funding is approximately $445,464.65. Pursuant to
Section 107 of CERCLA, 42 u.s.c. S 9607, EPA hereby demands payment of the
above-stated amount, together with any and all interest recoverable by law.
PRP RESPONSE AND EPA CONTACT PERSON
As described in this letter, EPA is allowing you thirty (30) days to make a
good faith offer to EPA. However, you are requested to contact EPA in
writing within ten (10) calendar days of the date of this letter to indicate
whether you wish to participate in negotiations to undertake or finance the
RD/RA at this Site. Your letter should include the appropriate person's
name, address and telephone number for further contact with you.
If the Agency does not receive a timely response, EPA will assume that you do
not wish to negotiate a resolution of its liabilities in connection with the
response, and that you have declined any involvement in performing these
response activities. Be advised that you may be held liable hereafter under
Section 107 of CERCLA, 42 u.s.c. S 9607, for the cost of the response actions
which EPA performs at the Site and for any damages to natural resources4
Your response to this notice letter should be sent to:
Mr. Richard Leahy
Assistant Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
404/347-2641
If you have any legal questions pertaining to this matter, please direct them
to Mr. Leahy. Please direct any technical questions which you may have to
Ms. Barbara Benoy, Remedial Project Manager, at 404/347-7791. Please provide
copies of your response and any future correspondence to Ms. Benoy.
Due to the seriousness of the problem at the Site and the legal ramifications
of your failure to respond promptly, EPA strongly encourages you to give this
• •
-5-
matter your immediate attention and to respond within the time specified
above.
Thank you for your cooperation in this matter.
SincerelY,
Enclosures
Acting Direct<:>r
Division
cc: William Meyer, NC DEHNR
,
•• •• *** 03/15/1991 DRAFT***
13
Vl. 0
SUMMARY OF THE MAJOR DELIVERABLES FOR THE
RE.MEDIAL DESIGN AND REMEDIAL ACTION AT
THE NATIONAL STAR".:H Ii CHEMICAL CORPORATION SITE
DELIVERABLE
I
TASK I SCOPING
Technical Memorandum Documenting
Any Revised Site Objectives (5)
TASK· II RE.MEDIAL 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
I ' • SCOPE OF WORK Jt THE COY--: /lfrv'/
REMEDIAL DESIGN AND REMEDIAL ACTION )-AT THE NATIONAL STARCH & CHEMICAL CORPQR."t'rIO!( SITE OPERABLE UNIT 2
INTRODUCTION
The purpose of this Remedial Design/Remedial Action (RD/RA) is to cond~ct all necessary response actions to complete the selected remedy to ensure protection of human health. and the environment. Remedial Design (RD) is generally defined as those activities to be undertaken by the Settling Defendant to develop the final plans and specifications, general provisions and special requirements necessary to translate the Record of Decision (ROD) into the remedy to be constructed under the Remedial Action {RA) phase. RA is generally the implementation phase of site remediation to include performance monitoring. The RA is based on the RD to achieve the remediation goals sp·ecified 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 ''technic41'' 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 Re,;:ponse 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 SettL:.ng 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 respons.ibility to provide effective protection of public health, welfare, and the environment. EPA approval of a task or deliverable shall net be construed as a guarantee as to the ult.imate adequacy of such task or deliverable. A. summary of the major deliverables that· Settling .Defendant shall submit for ·the response actions is attached.
•
TASK I -SCOPING
*** 03/15/1991
2
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 trenc_h
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.
S. Actual implementation of the selected remedy, t.e. deed
and/or 'access restrictions, etc., necessary to impl:ement the
selected remedy.
6. Maintenance of the facilities .necessary_ to implement the
selected remedy, as required.
• *** 03/15/1991 D.T **
3
Vl.O
7. Perfo=ance monitoring of t.he 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 heal.th 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.
I
The Se~tlinq Defendant must meet with EPA to discuss all project
planning decisions and special concerns associated with the
Site. The following activities shall be perfo=ed by the
Settling Defendant as a function of the project scoping process.
A. Site Background
The Settling Defendant s·hall gather and analyze the existing
info=ation regarding the Site and shall conduct a visit to the
Site to assist in planning the scope of 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
info=ati0n shall be utilized in dete=ining i.f 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.
• *** 03/15/1991 D. ***
4
Vl, 0
2. Conduct Site Visit ,60,,vf,1ccvn h/l,f /,}-'t,,.,;0,_ at\/ 1 -
f ci/f-r i., jeu,,, 7; a-ref <!~ ~ c) /' t1 ~ 1 ,
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 dev.eloping 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 the
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 to
proceeding with Task II.
TASK II -REMEDIAL DESIGN/WORK PLAN
Remedial Design shall be performed to support the response
actions selected in the ROD and shall be embodied into a Work
Plan. The Work Plan shall provide the technical details for
implementation of the response actions in accordance with
standard professional engineering and construction practices.
A. Remedial Design Planning
.
At the conclusion of the project planning phase, the Settling
Defendant shall submit the following:
Work Plan,
Sampling and Analysis Plan, and
Health and Safety Plan,
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 f~eld activities.
Upon approval of the Work Plan, the Settling Defendant shall
implement the Work Plan in accordance with the EPA-appr8ved
design management schedule contained therein. Such
• *** 03/15/1991
5
Vl.O
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 ~ach major
activity and submission of each deliverable sha 1_1 also be
·.included. The Work Plan shall be developed in conjunction
with the Health and Safety Plan and the Sampling and
Analysis Plan qlthough each plan may be delivered under
separate cover.
Specifically, the Work Plan shall present the following:
a. A statement of the problern(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 tha~ 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.
C.
d.
e.
f.
• *** 03/15/1991
6
Vl. 0
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
deliveraole required by this Consent Decree,
including those in th~s SOW. This schedule shall
also include information regarding timing,
initiation and completion of all critical path
milestones for each activity and/or deliverable.
A project management plan, including a data
management plan, monthly reports to EPA, and
meetings and presentations to EPA at the
conclusion of each major phase of the RD/RA. The
data management plan shall address the
requirements for project management systems,
including tracking, storing, and retrieving the
data al~ng with identtfying software to be used,
minimum data requirements, data format and backup
data management. The plan shall address both data
management and document control for all activities
.conducted during the RD/RA.
A description o:: the cc:nmunity relations,. support
activities to be cond,~cted during the RD. At
EPA's request, it is expected that the Settling
-Defendant will assist EPA in preparing and
disseminating ~nformation to the public regarding
the RD work to be performed.
2. Health and Safety Plan
A Health and Safety Plan shall be prepared in conformance
with the Settling Defendant's health and safety program, and
in compliance with OSHA regulations and protocols. The
Hea.lth and Safety Plan shall include a health and safety
risk analysis, a description of monitoring and personal
protective equipment, medical monitoring, and site control.
Note that EPA does not "approve" the Settling Defendant's
Health and Safety Plan, but rather EPA reviews it to ensure
that all necessary elements are included, and that ~h~ plan
provides for the protection of human health and the
environment.
3.
• *** 03/15/1991
7
Samoling and Analysis Plan
Vl. 0
The Settling Defendant shall prepare a Sampling and Analysis Plan (SAP) to ensure that s_ample 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 s~.pling objectives, sample location (horizontal and vertical) and· frequency, sampling equipment and procedures, and sample handling and analysis. The Field Sampling and Analysis Plan shall be written so that a field sampling team unfamili·ar with the site would be able to gather the samples and field information required. The QA.PP 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 refuedial action cbjectives identified in the National Contingency Plan. In addition, the QA.PP shall address personnel qualifications, sampling procedures, sample custody, analytical ?rocedures, 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 S9ttling Defendant shal·l demonstrate, in advance and to EPA's satisfaction, that each laboratory it may use is qualified co conduct the proposed work. This includes use of methods and analytical protocols for the chemicals of concern in the media of interest within detection and quantification limits consistent with both QA/QC procedures and DQOs approved by EPA in the QA.PP 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 informaticn to demonstrate that the laboratory is qualified to conduct the work, including information on personnel qualifications, equipment and material specifications. In additiC11 1 .. EPA may require submittal of data packages equivalent to those generated in the EPA r.ontract Laborator~ Program (CLP) and may require laboratory analysis of performance samples (blank c:nd/or spike ·samples) in sufficient number to determine the capabilities of the laboratory. If a
• • *** 03/15/1991 DRAFT*** Vl. 0
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 preli.rr:inary project completion, the Settling Defendant
shall prepare and submit a Response Action Report which
certifi8s that all items contained in the Consent Decree,
including the ROD and this SOW anci 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. Synopsis of the work defined in the SOW and
certification that this work was performed;_
2. Explanation of modifications made during the response
actions to the original Work Plan and why these changes
were made; and,
3. All applicable Record Drawings;
After E°PA review, Settling Defendant shall address any comments
and submit a revised report. The response actions shall not ~e
considered comple~e until EPA approves the Final Report..
• • *** 03/15/1991 DRAFT***
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
Vl.O
The purpose of the Remediation Goal Verification Plan is to
provide a mechanism to ensure that eotn short tsrm ana long term
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 Pl.an 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
qua·lity 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.
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10
REFERENCES
Vl. 0
The following list, although not comprehensive, comprises many
of the regula~ions 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-330/9-78-0"01-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. 9335.0-7B.
8. · "Guidelines and Specifications for Preparing Quality
Assurance Project Plans", U.S. EPA, Office of Research and
Development, Cincinnati, OH, QAMS-004/80, December 29, i980.
9. "Interim Guidelines and Specifications for Preparing Quality
Assurance Project Plans·•·, U.S. EPA, Office of Emergenc;· and
Remedial Response, QAMS-005/80, December 1980.
10. "Users Guide to the EPA Contract Laboratory Program", U.S.
EPA, Sampie Management Office, August 1982.
• • *** 03/15/1991 DRlvT *** Vl. 0
11
11. ''Engineering Suppoit Branch Standard Operating Pro~edures
and Quality Assurance Manual'', U.S. EPA Region IV,
Environmental Services Division, April ·l, 1986, ( revised
peri?dically) .
12. "USEPA Contract Laboratory Program Statement of Work for
Organic Analysis", U.S. EPA, Office of Emergency and
Remedial Response, February 1988.
13. "USEPA Contract Laboratory Program Statement of Work fer
Inorganic Analysis", U.S. EPA,. Office of Emergency and
Remedial Response, July 1988.
14. "Quality in the Constructed Project: A Guideline for Owners,
Designers, and Constructors, Volume 1, Preliminary Edition
for Trial Use and Comment", American Society of Civil
Engineers, May 1988.
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. "st·andards for General Industry", Federal Regi.:ter 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.
2 3. ''NIOSH Manual of Analytical Methods, 2d edition. Volumes
I~VII, or the 3rd edit.ion, Volumes I and II, National
Institute of Occupational Safety and Health.
• *** 03/15/1991
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.
Vl. 0
25. "TLVs -Threshold Limit Values and Biological Exposure
Indices for 1987-88", American Conference of Gcvernmental
Industrial Hygienists.
26. "American National Standards Practices for Respiratory
Protection",· American National Standards· Institute
Z88.2-1980, March 11, 1981 ..
27. "Procedures for Completion and Deletion of NPL Sites", U.S.
EPA, Office of Emergency and Remedial Response, April 1989,
OSWER Directive No. 9320.2-JA.
. 1/ • " .. ' ·-'..
---.~-··
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Solid Waste Management
P.O. Box 27687 · Raleigh, North Carolina 27611-7687
James G. ~Aartin, Governor
William W. Cobey, Jr., Secretary
MEMORANDUM
TO:
FROM:
RE:
27 February 1990
Perry Nelson, Chief
Groundwater Section
Division of Environmental Management
Lee Crosby, Head fl oY
Superfund Sectionp
Draft Remedial Investigation Study Report
National Starch Chemical Corporation Site
Operable Unit .2
Salisbury, Rowan County; North Carolina
EPl\ is in the process of completing a Remedial
Investigation Study for the National . Starch Chemical Corporation
Super fund Site, Operable Unit 2. This is part of the National
Starch Chemica_l Corporation site, a National Priority List site.
Attached are three copies of· the text and Appendix A of ·the
Draft Remedial Investigation Study Report for the subject site.
This report was prepared by Conestoga~Rovers and Associates for
the U.S. EPA. Due to their massive sizes Appendix B
11Certif:Lcates of .Analysis11 and Appendix C 11 Vadose Zone Model
Results" have ·been omitted from these copies, but can be supp.Lied
on request. It is requested that these documents be forwarded to
the appropriate sections of DEM and comments be submitted to the
N. C. Super fund Section. The N. C. Superfund Section will be
reviewing this document and submitting comments to EPA Region IV
in the near future. It is our desire to include the views and
permitting requirements of the Air Quality, Groundwater, and
Water Quality Sections of DEM.
If you or your staff have any questions, please call Bruce
Nicholson, Jack Butler or me at ( 919) 733-2801.
LC/db
Attachment
William L. Meyer
Director