NC0089109_CERCLA action (issuance)_20220107

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 4
)
IN THE MATTER OF: )
)
AZP Process Ponds Site, )
Rutherford County, North Carolina )
)
American Zinc Products LLC, )
)
CERCLA Docket No. CERCLA-04-2022-2502
Respondent )
)
Proceeding Under Sections 104, 106(a), ) ADMINISTRATIVE SETTLEMENT
107 and 122 of the Comprehensive ) AGREEMENT AND ORDER ON
Environmental Response, Compensation, ) CONSENT FOR REMOVAL ACTIONS
and Liability Act, 42 U.S.C. §§ 9604, )
9606(a), 9607 and 9622 )
)

ADMINISTRATIVE SETTLEMENT AGREEMENT AND ORDER ON CONSENT FOR
REMOVAL ACTIONS
TABLE OF CONTENTS
I. JURISDICTION AND GENERAL PROVISIONS 1
II. PARTIES BOUND 1
III. DEFINITIONS 2
IV. FINDINGS OF FACT 4
V. CONCLUSIONS OF LAW AND DETERMINATION 6
VI. SETTLEMENT AGREEMENT AND ORDER 7
VII. DESIGNATION OF CONTRACTOR, PROJECT COORDINATOR, AND ON -
SCENE COORDINATOR 7
VIII. WORK TO BE PERFORMED 8
IX. PROPERTY REQUIREMENTS 14
X. FINANCIAL ASSURANCE 15
XI. INDEMNIFICATION AND INSURANCE 18
XII. PAYMENTS FOR RESPONSE COSTS 20
XIII. FORCE MAJEURE 21
XIV. DISPUTE RESOLUTION 22
XV. STIPULATED PENALTIES 23
XVI. COVENANTS BY EPA 25
XVII. COVENANTS BY RESPONDENT 26
XVIII. OTHER CLAIMS 26
XIX. EFFECT OF SETTLEMENT/CONTRIBUTION 27
XX. RECORDS 27
XXI. MODIFICATION 28
XXII. ADDITIONAL REMOVAL ACTION 29
XXIII. INTEGRATION/APPENDICES 29
XXIV. EFFECTIVE DATE 29
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I. JURISDICTION AND GENERAL PROVISIONS
1. This Administrative Settlement Agreement and Order on Consent ("Settlement")
is entered into voluntarily by the United States Environmental Protection Agency (EPA) and
American Zinc Products LLC ("Respondent"). This Settlement provides for the performance of a
removal action by Respondent and the payment of certain response costs incurred by the United
States at or in connection with the "AZP Process Ponds Site" (the "Site") generally located at
484 Hicks Grove Road in Mooresboro, Rutherford County, North Carolina.
2. This Settlement is issued under the authority vested in the President of the United
States by Sections 104, 106(a), 107, and 122 of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9604, 9606(a), 9607 and 9622
(CERCLA). This authority was delegated to the Administrator of EPA on January 23, 1987, by
Executive Order 12580, 52 Fed. Reg. 2923 (Jan. 29, 1987), and further delegated to Regional
Administrators by EPA Delegation Nos. 14-14C (Administrative Actions through Consent
Orders) and 14-14D (Cost Recovery Non -Judicial Agreements and Administrative Consent
Orders) and further delegated to the Chief of the Emergency Response, Removal, and Prevention
Branch by Regional Delegation 14-14C (Administrative Actions through Consent Orders) and to
the Chief of the Superfund Enforcement and Community Engagement Branch by Regional
Delegation 14-14-D (Cost Recovery Non -Judicial Agreements and Administrative Consent
Orders).
3. EPA has notified the State of North Carolina (the "State") of this action pursuant
to Section 106(a) of CERCLA, 42 U.S.C. § 9606(a).
4. EPA and Respondent recognize that this Settlement has been negotiated in good
faith and that the actions undertaken by Respondent in accordance with this Settlement do not
constitute an admission of any liability. Respondent does not admit, and retains the right to
controvert in any subsequent proceedings other than proceedings to implement or enforce this
Settlement, the validity of the findings of facts, conclusions of law, and determinations in
Section IV (Findings of Fact) and Section V (Conclusions of Law and Determinations) of this
Settlement. Respondent agrees to comply with and be bound by the terms of this Settlement and
agrees not to contest the basis or validity of this Settlement or its terms.
II. PARTIES BOUND
5. This Settlement is binding upon EPA and upon Respondent and their successors
and assigns. Any change in ownership or corporate status of Respondent, including any transfer
of assets, does not alter Respondent's obligations under this Settlement.
6. Respondent shall provide a copy of this Settlement to each person representing
Respondent with respect to the Site or the Work, and shall condition all contracts entered into
hereunder upon performance of the Work in conformity with the terms of this Settlement.
Respondent or its contractors shall provide written notice of the Settlement to all subcontractors
performing any portion of the Work required by this Settlement. Respondent shall nonetheless be
responsible for ensuring that its contractors and subcontractors perform the Work in accordance
with the terms of this Settlement.

III. DEFINITIONS
7. Terms not otherwise defined in this Settlement have the meanings assigned in
CERCLA or in regulations promulgated under CERCLA. Whenever the terms set forth below
are used in this Settlement, the following definitions apply:
"Action Memorandum -Enforcement" means the EPA Action Memorandum relating
to the Site signed on , by the Regional Administrator, EPA Region 4, or his/her
delegate, and all attachments thereto. The "Action Memorandum -Enforcement" is attached
as Appendix A.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, 42 U.S.C. §§ 9601-9675.
"Day" or "day" means a calendar day. In computing any period of time under this
Settlement, the day of the event that triggers the period is not counted and, where the last
day is not a working day, the period runs until the close of business of the next working day.
"Working Day" means any day other than a Saturday, Sunday, or federal or State holiday
"Effective Date" means the effective date of this Settlement as provided in Section
XXIV.
"EPA" means the United States Environmental Protection Agency and its successor
departments, agencies, or instrumentalities.
"NCDEQ" means the North Carolina Department of Environmental Quality and any
successor departments or agencies of the State.
"Future Response Costs" means all costs (including direct, indirect, payroll,
contractor, travel and laboratory costs) that the United States incurs or pays beginning with
the Effective Date of this Settlement Agreement in implementing, overseeing, or enforcing
this Settlement, including: (1) in developing, reviewing and approving deliverables
generated under this Settlement; (2) in overseeing Respondent's performance of the Work;
(3), in assisting or taking action to obtain access or use restrictions; (4) in taking action
under or implementing Paragraph 28 (Work Takeover), Section X (Financial Assurance),
Section XIV (Dispute Resolution), and all litigation costs in enforcing this Settlement.
These costs shall also include Agency for Toxic Substances and Disease Registry (ATSDR)
costs regarding the Site.
"Including" or "including" means "including but not limited to."
"Interest" means interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund established by 26 U.S.C. § 9507, as provided under section 107(a)
of CERCLA, compounded annually on October 1 of each year. The applicable rate of interest will
be the rate in effect at the time the interest accrues. The rate of interest is subject to change on
October 1 of each year. Rates are available online at https://www.epa.gov/superfund/superfund-
interest-rates.
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"National Contingency Plan" or "NCP" means the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA,
42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"Paragraph" means a portion of this Settlement identified by an Arabic numeral or an
upper or lower case letter.
"Parties" means EPA and Respondent.
"Past Response Costs" means all costs (including direct, indirect, payroll, contractor,
travel, and laboratory costs) that the United States incurs or pays at or in connection with
the Site between July 29, 2021, and the Effective Date.
"Post -Removal Site Control" means actions necessary to ensure the effectiveness and
integrity of the removal action to be performed pursuant to this Settlement consistent with
Sections 300.415(l) and 300.5 of the NCP and "Policy on Management of Post -Removal
Site Control" (OSWER Directive No. 9360.2-02, Dec. 3, 1990).
"RCRA" means the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901-6992
(also known as the Resource Conservation and Recovery Act).
"Respondent" means American Zinc Products LLC.
"Section" means a portion of this Settlement identified by a Roman numeral.
"Settlement" means this Administrative Settlement Agreement and Order on
Consent, all appendices attached hereto listed in Section XXIII (Integration/Appendices),
and all deliverables approved under and incorporated into this Settlement. If the Settlement
conflicts with any provision in any appendix or deliverable, the provisions of this
Settlement control.
"Site" means the AZP Process Ponds Site, comprising approximately 196 acres,
located at 484 Hicks Grove Road in Mooresboro, Rutherford County, North Carolina.
"State" means the State of North Carolina.
"Transfer" means to sell, assign, convey, lease, mortgage, or grant a security interest
in, or where used as a noun, a sale, assignment, conveyance, or other disposition of any
interest by operation of law or otherwise.
"United States" means the United States of America and each department, agency,
and instrumentality of the United States.
"Waste Material" means (a) any "hazardous substance" under Section 101(14) of
CERCLA, 42 U.S.C. § 9601(14); (b) any pollutant or contaminant under Section 101(33) of
CERCLA, 42 U.S.C. § 9601(33); and (c) any "solid waste" under Section 1004(27) of
RCRA, 42 U.S.C. § 6903(27).
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"Work" means everything required of Respondent under this Settlement other than
under Sections XII (Payments for Response Costs) and XV (Stipulated Penalties).
IV. FINDINGS OF FACT
8. For purposes of this Settlement only, EPA makes the following findings of fact:
a. Respondent American Zinc Products LLC (AZP) is a limited liability
company formed and existing under the laws of the State of North Carolina.
b. The Site is located at 484 Hicks Grove Road, Mooresboro, Rutherford
County, North Carolina. The geographical coordinates are latitude 35.19105, by
longitude -81.84897.
c. The Site is approximately196 acres. The plant is situated on a knob that is
located south of the right descending bank of the Broad River. The area surrounding the Site is
predominantly used for mixed residential and agricultural purposes with a fire department and a
church across the street south of the main entrance to the plant.
d. The AZP facility is a hydrometallurgical zinc metal production facility.
The primary feedstock for the production facility is Waelz Oxide (WOX) which is produced in
steel dust recycling facilities. WOX, which contains approximately 60% zinc, is produced from
processing electric arc furnace (EAF) dust, a listed hazardous, in Waelz kilns. At the AZP
facility, the WOX is dissolved in an acidic solution from which zinc is selectively transferred to
a solvent solution and then to another acidic electrolyte solution before being plated onto
cathodes in the cellhouse. Zinc metal sheets harvested from the cathodes are melted and casted
into ingots for shipping.
e. The AZP facility was constructed with three process ponds and a
stormwater pond located on the west side of the facility ("Western Ponds").
f. The Western Ponds were constructed with double liners and further
described below:
• Depleted Solution Pond was constructed to receive depleted solution from
the solvent extraction circuit by gravity flow. The depleted solution is then
pumped from the Pond to the gypsum removal circuit and routed back
through the solvent extraction process again to recover additional zinc. The
pond is therefore integrated in the solvent extraction circuit. Depleted
solution is a sulfuric acid solution containing primarily zinc with some other
metals such as cadmium, lead, and iron in lower concentrations.
• Raffinate Pond was constructed to receive raffinate solution from the solvent
extraction circuit by gravity flow. The raffinate solution is then pumped back
to the leach circuit to recover additional zinc. Raffinate is a sulfuric acid
solution, containing zinc and other metals.
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• Maintenance Pond was constructed to store the contents of various tanks and
vessels in the plant during maintenance periods and received process solution
or contact storm water removed from various containment areas. All of the
solution is integrated into the process
• Stormwater Pond contains storm water falling on the roads and roofs on the
western side of the plant.
g. On July 28, 2021, AZP initiated the removal and replacement of the liners
within the raffinate pond. After removing the liners, AZP discovered a discoloration in the
underlying substrate surface which suggested a potential release from the pond. AZP collected
samples of the substrate material (sand and gravel) at two locations. A small amount of liquid
was encountered during sampling at one of the locations. The samples were sent to AZP's on -
site QA/QC laboratory and a third -party laboratory for analysis. The liquid sample exhibited a
pH less than 2 standard units (s.u.) and elevated metal concentrations. The presence of elevated
metals in substrate material beneath the pond suggested material had leaked from the pond.
h. On July 29, 2021, AZP received the preliminary results from its on -site
laboratory which indicated elevated levels of metal concentrations.
i. Upon discovering the evidence of a potential release of hazardous
substances from the raffinate pond, Respondent notified the National Response Center of the
release on July 29, 2021.
j. This discovery of the potential release from the raffinate solution pond
triggered the investigation of the depleted solution pond and the maintenance pond. To facilitate
this investigation, AZP converted the Western Ponds to storage tanks with the liner system in
each pond serving as secondary containment.
k. On July 30, 2021, NCDEQ Hazardous Waste Section and Division of
Water Resources conducted a Site visit and conducted water quality monitoring of a spring that
is off -site on a neighboring property that discharges to an unnamed tributary ("Ravine 4") to the
Broad River. The pH of the spring was 4.5. The spring is approximately 200 feet from the west
side ponds.
1. On August 4, 2021, AZP collected surface water samples from Ravine 4,
which lies below the Western Ponds.
m. On a conference call on August 9, 2021, AZP updated EPA and NCDEQ
on the sampling conducted to date and AZP's initial response to the release from the raffinate
solution pond. AZP also proposed additional work to investigate the impacts of the release. On
August 9, 2021, AZP submitted a Sampling and Analysis Plan to NCDEQ and provided a copy
to EPA.
n. On August 11, 2021, the depleted solution pond and raffinate pond were
sampled below their liners. No free liquids were detected under the depleted solution pond liner
and solid samples at a depth of 3.5 inches were collected. Free liquids were detected under the
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raffinate pond liner, therefore only one sample was taken from below the raffinate liner. Samples
were sent to a 3rd party lab for analysis.
o. On August 18, 2021, AZP collected surface water and sediment samples
from Ravine 4, an unnamed tributary to the Broad River, and the receiving surface water
conveyance from a discharge from the off -site spring.
p. On September 17, 2021, the North Carolina Department of Environmental
Quality (NCDEQ) Hazardous Waste Program referred the Site to Region 4 to conduct a Removal
Site Evaluation (RSE).
q. An EPA Region 4 On -Scene Coordinator (OSC) was assigned to conduct
the RSE to determine if the release of hazardous substances at the AZP Site posed a threat to
human health and/or the environment.
r. Stream surface water and sediment data collected by AZP was reviewed
by the OSC. The data indicated that there were on -going impacts to the unnamed tributary with
similar metal and pH signatures as found in the Western Ponds. The data identified soil
contamination under the liners of all three of the Western Ponds (depleted solution, raffinate and
maintenance).
s. The OSC provided the results of the surface water and sediment samples
to U.S. EPA Region 4, Technical Support Services (TSS) to be evaluated by an ecological
toxicologist.
t. October 6, 2021, TSS issued a memo to the OSC in which the ecological
toxicologist concluded that the surface water sample results from the AZP Site showed that the
levels of pH, cadmium, and zinc "could be causing substantial harm to the aquatic life" in Ravine
4, an unnamed tributary to the Broad River.
u. On October 6, 2021, the OSC, after reviewing the TSS memo, as well as,
other data, submitted a RSE Memo to Region 4 management. The OSC determined that there
was a release or threat of release of hazardous substances, pollutants or contaminants from the
Site, and recommended that the AZP Site be considered for a time -critical removal action to
remove and/or prevent migration of hazardous substances, pollutants, and contaminants.
V. CONCLUSIONS OF LAW AND DETERMINATION
9. Based on the Findings of Fact set forth above, EPA has determined that:
a. The AZP Process Ponds Site is a "facility" as defined by Section 101(9) of
CERCLA, 42 U.S.C. § 9601(9).
b. The contamination found at the Site, as identified in the Findings of Fact
above, includes [a] "hazardous substance(s)" as defined by Section 101(14) of CERCLA,
42 U.S.C. § 9601(14).
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c. Respondent is a "person" as defined by Section 101(21) of CERCLA, 42
U.S.C. § 9601(21).
d. Respondent is the "owner" and/or "operator" of the facility, as defined by
Section 101(20) of CERCLA, 42 U.S.C. § 9601(20), and within the meaning of Section
107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1). Therefore, Respondent is a responsible party
under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a).
e. The conditions described in the Findings of Fact above constitute an actual or
threatened "release" of a hazardous substance from the facility as defined by Section 101(22) of
CERCLA, 42 U.S.C. § 9601(22).
f. The removal action required by this Settlement is necessary to protect the
public health, welfare, or the environment and, if carried out in compliance with the terms of this
Settlement, will be deemed to be consistent with the NCP, as provided in Section
300.700(c)(3)(ii) of the NCP.
VI. SETTLEMENT AGREEMENT AND ORDER
10. Based upon the Findings of Fact, Conclusions of Law, and Determinations set
forth above, and the administrative record, it is hereby Ordered and Agreed that Respondent shall
comply with all provisions of this Settlement.
VII. DESIGNATION OF CONTRACTOR, PROJECT COORDINATOR, AND ON -
SCENE COORDINATOR
11. Respondent has retained EnSafe Inc.("EnSafe") as its primary contractor to
perform the Work and has provided EPA with Ensafe's qualifications. EPA approves Ensafe as
contractor for Respondent. Respondent shall notify EPA of the names, titles, contact
information, and qualifications of any other contractors or subcontractors retained to perform the
Work at least 30 days prior to commencement of such Work. EPA retains the right to disapprove
any or all of the contractors and/or subcontractors retained by Respondent. If EPA disapproves a
selected contractor or subcontractor, Respondent shall retain a different contractor or
subcontractor and shall notify EPA of that contractor's or subcontractor's name, title, contact
information, and qualifications within 45 days after EPA's disapproval.
12. Respondent has designated EnSafe as its Project Coordinator who shall be
responsible for administration of all actions by Respondent required by this Settlement and has
provided EPA with the designated Project Coordinator's name, title, contact information, and
qualifications. To the greatest extent possible, the Project Coordinator shall be present on Site or
readily available during Site work. If Respondent replaces the Project Coordinator, Respondent
shall notify EPA of that person's name, title, contact information, and qualifications. If EPA
disapproves of the newly designated Project Coordinator, Respondent shall retain a different
Project Coordinator and shall notify EPA of that person's name, title, contact information, and
qualifications within 30 days following EPA's disapproval. Notice or communication relating to
this Settlement from EPA to Respondent's Project Coordinator constitutes notice or
communication to Respondent. All notices under this Section are effective upon receipt, unless
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otherwise specified. In the case of emailed notices, there is a rebuttable presumption that such
notices are received on the same day that they are sent.
13. EPA has designated Ken Rhame of the Emergency Response, Removal,
Prevention & Preparedness Branch, Region 4, as its On -Scene Coordinator (OSC). Unless
otherwise specified in this Settlement, notice or communication from Respondent to EPA shall
be sent to the OSC. All notices under this Section are effective upon receipt, unless otherwise
specified. In the case of emailed notices, there is a rebuttable presumption that such notices are
received on the same day that they are sent. EPA and Respondent has the right, subject to
Paragraph 11, to change its respective designated OSC or Project Coordinator. Respondent shall
notify EPA 5 days before such a change is made. The initial notification by Respondent may be
made orally, but shall be promptly followed by a written notice.
14. The OSC is responsible for overseeing Respondent's implementation of this
Settlement. The OSC has the authority vested in an OSC by the NCP, including the authority to
halt, conduct, or direct any Work required by this Settlement, or to direct any other removal
action undertaken at the Site. Absence of the OSC from the Site shall not be cause for stoppage
of work unless specifically directed by the OSC.
VIII. WORK TO BE PERFORMED
15. Respondent shall perform, at a minimum, all actions necessary to implement the
objectives of the Acton Memorandum -Enforcement. The actions to be implemented generally
include, but are not limited to, the following:
a. Develop a Site Health and Safety Plan.
b. Develop an Sampling and Analysis Plan/QAPP for EPA review and
approval.
c. Develop a Removal Work Plan for EPA review and approval.
d. Remove "source contamination" in the Western Ponds to the extent
practicable to mitigate further migration and minimize off -site impacts to
the spring at Ravine 4.
e. Implement additional time -critical removal action to abate the threat to
human health and the environment based on the results of the further
investigation under approved Sampling and Analysis Plan.
f. Restore site disturbances caused from removal action to pre -removal
conditions to the extent practicable.
g.
Develop and submit a final report summarizing site activities, sample results
and disposal records.
h. The requirements may expand and be supplemented if additional work is
deemed necessary.
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16. For any regulation or guidance referenced in the Settlement, the reference will be
read to include any subsequent modification, amendment, or replacement of such regulation or
guidance. Such modifications, amendments, or replacements apply to the Work only after
Respondent receives notification from EPA of the modification, amendment, or replacement.
17. Work Plan; Review and Implementation Process for Deliverables
a. Within thirty (30) days after the Effective Date, in accordance with
Paragraph 18 (Submission of Deliverables), Respondent shall submit to EPA for approval a work
plan for performing the removal action in the Removal Work Plan. The Removal Work Plan
shall provide a description of, and an expeditious schedule for, the actions required by this
Settlement.
b. After review of the Removal Work Plan, and after review of any other
deliverable that is required to be submitted for EPA approval under the Settlement, the SOW, or
the approved Removal Work Plan, EPA shall: (i) approve, in whole or in part, the deliverable;
(ii) approve the submission upon specified conditions or required revisions to the deliverable;
(iii) disapprove, in whole or in part, the deliverable; or (iv) any combination of the foregoing. If
EPA requires revisions, EPA will provide a deadline for the resubmission, and Respondent shall
submit the revised deliverable by the required deadline. Once approved or approved with
conditions, Respondent shall implement the Removal Work Plan and Work under all other
deliverables as approved in writing by EPA in accordance with the schedule approved by EPA.
Upon approval, or subsequent modification, by EPA of any deliverable, or any portion thereof:
(1) such deliverable, or portion thereof, and any subsequent modifications, will be incorporated
into and enforceable under the Settlement; and (2) Respondent shall take any action required by
such deliverable, or portion thereof.
c. Respondent shall not commence or perform any Work except in conformance
with the terms of this Settlement.
d. Respondent may seek subsequent modifications to approved deliverables
in accordance with Paragraphl7b.
18. Submission of Deliverables
a. General Requirements for Deliverables. Respondent shall submit all
deliverables in electronic form. All other deliverables shall be submitted to EPA in the form
specified by the OSC. If any deliverable includes maps, drawings, or other exhibits that are
larger than 8.5 x 11 inches, Respondent shall also provide EPA with paper copies of such
exhibits.
b. Technical Specifications for Deliverables. Sampling and monitoring data
should be submitted in standard Regional Electronic Data Deliverable (EDD) format. Other
delivery methods may be allowed if electronic direct submission presents a significant burden or
as technology changes.
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19. Health and Safety Plan. Within thirty (30) days after the Effective Date,
Respondent shall submit for EPA review and comment a plan that describes all activities to be
performed to protect on site personnel and area residents from physical, chemical, and all other
hazards related to performance of on -site work under this Settlement. This plan shall be prepared
in accordance with "EPA's Emergency Responder Health and Safety Manual," OSWER
Directive 9285.3-12 (July 2005 and updates), available at
https://www.epaosc.org/ HealthSafetvManual/manual-index.htm. In addition, the plan shall
comply with all currently applicable Occupational Safety and Health Administration (OSHA)
regulations found at 29 C.F.R. Part 1910. If EPA determines that it is appropriate, the plan shall
also include contingency planning. Respondent shall incorporate all changes to the plan
recommended by EPA and shall implement the plan during the pendency of the removal action.
20. Quality Assurance, Sampling, and Data Analysis
a. Respondent shall use quality assurance, quality control, and other technical
activities and chain of custody procedures for all samples consistent with EPA Directive CIO
2105.1 (Environmental Information Quality Policy, 2021), the most recent version of Quality
Management Systems for Environmental Information and Technology Programs — Requirements
with Guidance for Use, ASQ/ANSI E-4 (Feb. 2014), and Guidance for Quality Assurance Project
Plans, EPA QA/G-5, EPA Office of Environmental Information (Dec. 2002).
b. Respondent shall ensure that EPA personnel and its authorized
representatives are allowed access at reasonable times to laboratories used by Respondent in
implementing this Settlement. In addition, Respondent shall ensure that such laboratories analyze
all samples submitted by EPA pursuant to the QAPP for quality assurance monitoring, and that
sampling and field activities are conducted in accordance with the Agency's "EPA QA Field
Activities Procedure," CIO 2105-P-02.1 (9/23/2014) available at
http://www.epa.gov/irmpoli8/epa-qa-field-activities-procedures. Respondent shall ensure that the
laboratories they utilize for the analysis of samples taken pursuant to this Settlement meet the
competency requirements set forth in EPA's "Policy to Assure Competency of Laboratories,
Field Sampling, and Other Organizations Generating Environmental Measurement Data under
Agency -Funded Acquisitions" available at http://www.epa.gov/measurements/documents-about-
measurement-competency-under-acquisition-agreements and that the laboratories perform all
analyses according to EPA -accepted methods. Accepted EPA methods are documented in the
EPA's Contract Laboratory Program (http://www.epa.gov/clp), SW 846 "Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods" (https://www.epa.gov/hw-sw846),
"Standard Methods for the Examination of Water and Wastewater"
(http://www.standardmethods.org/), 40 C.F.R. Part 136, "Air Toxics - Monitoring Methods"
(http://www3.epa.gov/ttnamtil/airtox.html).
c. Upon request, Respondent shall provide split or duplicate samples to EPA or
its authorized representatives. Respondent shall notify EPA not less than 7 days prior to any
sample collection activity unless shorter notice is agreed to by EPA. In addition, EPA has the
right to take any additional samples that EPA deems necessary. Upon request, EPA may provide
to Respondent split and/or duplicate samples in connection with EPA's oversight sampling.
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d. Respondent shall submit to EPA all sampling and test results and other data
obtained or generated by or on behalf of Respondent or in connection with the implementation of
this Settlement.
21. Compliance with Applicable Law.
a. Nothing in this Settlement affects Respondent's obligations to comply with
all applicable state and federal laws and regulations, except as provided in Section 121(e) of
CERCLA, 42 U.S.C. § 9621(e), and 40 C.F.R. §§ 300.400(e) and 300.415(j). In accordance with
40 C.F.R. § 300.415(j), all on -site actions required pursuant to this Settlement shall, to the extent
practicable, as determined by EPA, considering the exigencies of the situation, attain applicable
or relevant and appropriate requirements (ARARs) under federal environmental or state
environmental or facility siting laws. Respondent shall include ARARs selected by EPA in the
Removal Work Plan.
b. No permit shall be required for any portion of the Work conducted entirely
on -site (i.e., within the areal extent of contamination or in very close proximity to the
contamination) and necessary for implementation of the Work. Where any portion of the Work
that is not on -site requires a federal or state permit or approval, Respondent shall submit timely
and complete applications and take all other actions necessary to obtain and to comply with all
such permits or approvals. Respondent may seek relief under the provisions of Section XIII
(Force Majeure) for any delay in the performance of the Work resulting from a failure to obtain,
or a delay in obtaining, any permit or approval required for the Work, provided that Respondent
has submitted timely and complete applications and taken all other actions necessary to obtain all
such permits or approvals. Nothing in this Settlement constitutes a permit issued under any
federal or state statute or regulation.
22. Off -Site Shipments
a. Respondent may ship hazardous substances, pollutants and contaminants
from the Site to an off -Site facility only if they comply with Section 121(d)(3) of CERCLA,
42 U.S.C. § 9621(d)(3), and 40 C.F.R. § 300.440. Respondent will be deemed to be in
compliance with CERCLA Section 121(d)(3) and 40 C.F.R. § 300.440 regarding a shipment if
Respondent obtains a prior determination from EPA that the proposed receiving facility for such
shipment is acceptable under the criteria of 40 C.F.R. § 300.440(b).
b. Respondent may ship Waste Material from the Site to an out-of-state waste
management facility only if, prior to any shipment, they provide written notice to the appropriate
state environmental official in the receiving facility's state and to the OSC. This written notice
requirement will not apply to any off -Site shipments when the total quantity of all such
shipments does not exceed ten cubic yards. The written notice must include the following
information, if available: (1) the name and location of the receiving facility; (2) the type and
quantity of Waste Material to be shipped; (3) the schedule for the shipment; and (4) the method
of transportation. Respondent also shall notify the state environmental official referenced above
and the OSC of any major changes in the shipment plan, such as a decision to ship the Waste
Material to a different out-of-state facility. Respondent shall provide the written notice after the
award of the contract for the removal action and before the Waste Material is shipped.
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c. Respondent may ship Investigation Derived Waste (IDW) from the Site to an
off -Site facility only if they comply with Section 121(d)(3) of CERCLA, 42 U.S.C. § 9621(d)(3),
40 C.F.R. § 300.440, EPA's "Guide to Management of Investigation Derived Waste," OSWER
9345.3-03FS (Jan. 1992), and any IDW-specific requirements contained in the Action
Memorandum. Wastes shipped off -Site to a laboratory for characterization, and RCRA
hazardous wastes that meet the requirements for an exemption from RCRA under 40 C.F.R.
§ 261.4(e) shipped off -Site for treatability studies, are not subject to 40 C.F.R. § 300.440.
23. Emergency Response. If any event occurs during performance of the Work that
causes or threatens to cause a release of Waste Material on, at, or from the Site and that either
constitutes an emergency situation or that may present an immediate threat to public health or
welfare or the environment, Respondent shall: (a) immediately take all appropriate action to
prevent, abate, or minimize such release or threat of release; (b) immediately notify the OSC or,
in the event of his/her unavailability, the Regional Duty Officer at 404-562-8700 of the incident
or Site conditions; and (c) take such actions in consultation with the OSC or authorized EPA
officer and in accordance with all applicable provisions of this Settlement, including, the Health
and Safety Plan. In the event that Respondent fails to take appropriate response action as
required by this Paragraph, and EPA takes such action instead, Respondent shall reimburse EPA
for all costs of such response action not inconsistent with the NCP pursuant to Section XII
(Payments for Response Costs).
24. Release Reporting.
a. Upon the occurrence of any event during performance of the Work that
Respondent is required to report under Section 103 of CERCLA, 42 U.S.C. § 9603, or Section
304 of the Emergency Planning and Community Right -to -know Act (EPCRA), 42 U.S.C. §
11004, Respondent shall immediately orally notify the OSC or, in the event of his/her
unavailability, the Regional Duty Officer at 404-562-8700, and the National Response Center at
[phone]. This reporting requirement is in addition to, and not in lieu of, reporting
required under Section 103 of CERCLA, 42 U.S.C. § 9603, and Section 304 of the Emergency
Planning and Community Right -To -Know Act of 1986, 42 U.S.C. § 11004.
b. For any event covered under this Section, Respondent shall submit a written
report to EPA within 7 days after the onset of such event, setting forth the action or event that
occurred and the measures taken, and to be taken, to mitigate any release or threat of release or
endangerment caused or threatened by the release and to prevent the reoccurrence of such a
release or threat of release.
25. Progress Reports. Commencing with the date of receipt of EPA's approval of the
Removal Work Plan and until issuance of Notice of Completion of Work pursuant to Paragraph
27, Respondent shall submit written progress reports to EPA on a quarterly basis, or as otherwise
requested by EPA, unless otherwise directed in writing by the OSC. These reports must describe
all significant developments during the preceding period, including the actions performed and
any problems encountered, analytical data received during the reporting period, and the
developments anticipated during the next reporting period, including a schedule of actions to be
performed, anticipated problems, and planned resolutions of past or anticipated problems.
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26. Final Report.
a. Within ninety (90) days after completion of all Work required by this
Settlement, other than continuing obligations listed in Paragraph 27 (Notice of Completion of
Work), Respondent shall submit for EPA review and approval a final report summarizing the
actions taken to comply with this Settlement. The final report must conform, at a minimum, with
the requirements set forth in Section 300.165 of the NCP entitled "OSC Reports." The final
report must include a good faith estimate of total costs or a statement of actual costs incurred in
complying with the Settlement, a listing of quantities and types of materials removed off -Site or
handled on -Site, a discussion of removal and disposal options considered for those materials, a
listing of the ultimate destination(s) of those materials, a presentation of the analytical results of
all sampling and analyses performed, and accompanying appendices containing all relevant
documentation generated during the removal action (e.g., manifests, invoices, bills, contracts,
and permits).
b. The final report must also include the following certification signed by a
responsible corporate official of Respondent or Respondent's Project Coordinator: "I certify
under penalty of perjury that this document and all attachments were prepared under my
direction or supervision in accordance with a system designed to assure that qualified personnel
properly gather and evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for gathering the
information, the information submitted is, to the best of my knowledge and belief, true, accurate,
and complete. I have no personal knowledge that the information submitted is other than true,
accurate, and complete. I am aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment for knowing violations."
27. Notice of Completion of Work.
a. When EPA determines, after EPA's review of the Final Report under
Paragraph 26, that all Work has been fully performed in accordance with this Settlement, with
the exception of any continuing obligations required by this Settlement, EPA will provide written
notice to Respondent. Notice of completion of work does not affect the following continuing
obligations: Post -Removal Site Controls, use restrictions, payment of Future Response Costs, or
record retention.
b. If EPA determines that such Work has not been completed in accordance
with this Settlement, EPA will notify Respondent, provide a list of the deficiencies, and require
that Respondent modify the Removal Work Plan if appropriate in order to correct such
deficiencies. Respondent shall implement the modified and approved Removal Work Plan and
shall submit a modified Final Report in accordance with the EPA notice. Failure by Respondent
to implement the approved modified Removal Work Plan is a violation of this Settlement.
28. Work Takeover.
a. If EPA determines that Respondent: (1) has ceased implementation of any
portion of the Work; (2) is seriously or repeatedly deficient or late in their performance of the
Work; or (3) is implementing the Work in a manner that may cause an endangerment to human
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health or the environment, EPA may issue a written notice of Work Takeover to Respondent,
including a description of the grounds for the notice and a period of time ("Remedy Period")
within which Respondent must remedy the circumstances giving rise to the notice. The Remedy
Period will be 20 days, unless EPA determines in its unreviewable discretion that there may be
an endangerment, in which case the Remedy Period will be 10 days.
b. If, by the end of the Remedy Period, Respondent does not remedy to EPA's
satisfaction the circumstances giving rise to the notice of Work Takeover, EPA may notify
Respondent and, as it deems necessary, commence a Work Takeover.
c. EPA may conduct the Work Takeover during the pendency of any dispute
under Section XIV (Dispute Resolution) but shall terminate the Work Takeover if and when: (i)
Respondent remedies, to EPA's satisfaction, the circumstances giving rise to the notice of Work
Takeover; or (ii) upon the issuance of a final determination under Section XIV (Dispute
Resolution) that EPA is required to terminate the Work Takeover.
IX. PROPERTY REQUIREMENTS
29. If the Site, or any other property where access is needed to implement this
Settlement, is owned or controlled by the Respondent, Respondent shall, commencing on the
Effective Date, provide EPA, the State, and their representatives, including contractors, with
access at all reasonable times to the Site, or such other property, for the purpose of conducting
any activity related to this Settlement. Where any action under this Settlement is to be performed
in areas owned by or in possession of someone other than Respondent, Respondent shall use best
efforts to obtain all necessary agreements for access within thirty (30) days after the Effective
Date, or as otherwise specified in writing by the OSC. As used in this Section, "best efforts"
means the efforts that a reasonable person in the position of Respondent would use to achieve the
goal in a timely manner, including the cost of employing professional assistance and the payment
of reasonable sums of money to secure access and/or use restriction agreements, as required by
this Section. If Respondent cannot accomplish what is required through "best efforts" in a timely
manner, Respondent shall notify EPA, and include a description of the steps taken to achieve the
requirements. If EPA deems it appropriate, it may assist Respondent, or take independent action,
in obtaining such access and/or use restrictions.
30. Respondent who owns or controls property at the Site shall, prior to entering into
a contract to Transfer any of its property that is part of the Site, or 60 days prior to a Transfer of
such property, whichever is earlier, (a) give written notice to the proposed transferee that the
property is subject to this Settlement; and (2) give written notice to EPA of the proposed
Transfer, including the name and address of the transferee. Respondent also agrees to require
that its successors comply with the immediately preceding sentence and Sections IX (Property
Requirements). This obligation continues until EPA issues a Notice of Completion of Work
under Paragraph 27.
31. Notwithstanding any provision of the Settlement, EPA retains all of its access
authorities and rights, as well as all of its rights to require land, water, or other resource use
restrictions, including enforcement authorities related thereto under CERCLA, RCRA, and any
other applicable statute or regulations.
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X. FINANCIAL ASSURANCE
32. To ensure completion of the Work required under Section VIII, Respondent shall
secure financial assurance, initially in the amount of $ 500,000 ("Estimated Cost of the Work"),
for the benefit of EPA. The financial assurance must be one or more of the mechanisms listed
below, in a form substantially identical to the relevant sample documents available from EPA,
and be satisfactory to EPA. As of the date of signing this Settlement, the sample documents can
be found under the "Financial Assurance - Settlements" category on the Cleanup Enforcement
Model Language and Sample Documents Database at https://cfpub.epa.gov/compliance/models/.
Respondent may use multiple mechanisms if they are limited to surety bonds guaranteeing
payment, letters of credit, trust funds, insurance policies, or some combination thereof.
a. A surety bond guaranteeing payment, performance of the Work, or both, that
is issued by a surety company among those listed as acceptable sureties on federal bonds as set
forth in Circular 570 of the U.S. Department of the Treasury;
b. An irrevocable letter of credit, payable to EPA or at the direction of EPA,
that is issued by an entity that has the authority to issue letters of credit and whose letter -of -credit
operations are regulated and examined by a federal or state agency;
c. A trust fund established for the benefit of EPA that is administered by a
trustee that has the authority to act as a trustee and whose trust operations are regulated and
examined by a federal or state agency;
d. A policy of insurance that provides EPA with acceptable rights as a
beneficiary thereof and that is issued by an insurance carrier that has the authority to issue
insurance policies in the applicable jurisdiction(s) and whose insurance operations are regulated
and examined by a federal or state agency;
e. A demonstration by a Respondent that it meets the relevant financial test
criteria of Paragraph 34 , accompanied by a standby funding commitment, that requires the
affected Respondent to pay funds to or at the direction of EPA, up to the amount financially
assured through the use of this demonstration in the event of a Work Takeover; or
f. A guarantee to fund or perform the Work executed in favor of EPA by a
company: (1) that is a direct or indirect parent company of a Respondent or has a "substantial
business relationship" (as defined in 40 C.F.R. § 264.141(h)) with a Respondent; and
(2) demonstrates to EPA's satisfaction that it meets the financial test criteria of Paragraph 33.
33. Respondents seeking to provide financial assurance by means of a demonstration
or guarantee under Paragraph 33 e or 33 f must, within 30 days of the Effective Date:
a. Demonstrate that:
(1) the affected Respondent or guarantor has:
i. Two of the following three ratios: a ratio of total liabilities to
net worth less than 2.0; a ratio of the sum of net income plus
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depreciation, depletion, and amortization to total liabilities
greater than 0.1; and a ratio of current assets to current liabilities
greater than 1.5; and
ii. Net working capital and tangible net worth each at least six
times the sum of the Estimated Cost of the Work and the
amounts, if any, of other federal, state, or tribal environmental
obligations financially assured through the use of a financial test
or guarantee; and
iii. Tangible net worth of at least $10 million; and
iv. Assets located in the United States amounting to at least
90 percent of total assets or at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of other
federal, state, or tribal environmental obligations financially
assured through the use of a financial test or guarantee; or
(2) The affected Respondent or guarantor has:
i. A current rating for its senior unsecured debt of AAA, AA, A,
or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa
as issued by Moody's; and
ii. Tangible net worth at least six times the sum of the Estimated
Cost of the Work and the amounts, if any, of other federal, state,
or tribal environmental obligations financially assured through
the use of a financial test or guarantee; and
iii. Tangible net worth of at least $10 million; and
iv. Assets located in the United States amounting to at least
90 percent of total assets or at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of other
federal, state, or tribal environmental obligations financially
assured through the use of a financial test or guarantee; and
b. Submit to EPA for the affected Respondent or guarantor: (1) a copy of an
independent certified public accountant's report of the entity's financial statements for the latest
completed fiscal year, which must not express an adverse opinion or disclaimer of opinion; and
(2) a letter from its chief financial officer and a report from an independent certified public
accountant substantially identical to the sample letter and reports available from EPA. As of the
date of signature of this Settlement, a sample letter and report are available under the "Financial
Assurance - Settlements" subject list category on the Cleanup Enforcement Model Language and
Sample Documents Database at https://cfpub.epa.gov/compliance/models/.
34. Respondents providing financial assurance by means of a demonstration or
guarantee under Paragraph 33 e or 33 f must also:
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a. Annually resubmit the documents described in Paragraph 34 b within 90 days
after the close of the affected Respondent's or guarantor's fiscal year;
b. Notify EPA within 30 days after the affected Respondent or guarantor
determines that it no longer satisfies the relevant financial test criteria and requirements set forth
in this Section; and
c. Provide to EPA, within 30 days of EPA's request, reports of the financial
condition of the affected Respondent or guarantor in addition to those specified in Paragraph
33.b; EPA may make such a request at any time based on a belief that the affected Respondent or
guarantor may no longer meet the financial test requirements of this Section.
35. Respondent shall diligently monitor the adequacy of the financial assurance. If
any Respondent becomes aware of any information indicating that the financial assurance
provided under this Section is inadequate or otherwise no longer satisfies the requirements of this
Section, such Respondent shall notify EPA of such information within 7 days. If EPA determines
that the financial assurance provided under this Section is inadequate or otherwise no longer
satisfies the requirements of this Section, EPA will notify the affected Respondent of such
determination. Respondent shall, within 30 days after notifying EPA or receiving notice from
EPA under this Paragraph, secure and submit to EPA for approval a proposal for a revised or
alternative financial assurance mechanism that satisfies the requirements of this Section. EPA
may extend this deadline for such time as is reasonably necessary for the affected Respondent, in
the exercise of due diligence, to secure and submit to EPA a proposal for a revised or alternative
financial assurance mechanism, not to exceed 60 days. Respondent shall follow the procedures
of Paragraph 37 (Modification of Amount, Form, or Terms of Financial Assurance) in seeking
approval of, and submitting documentation for, the revised or alternative financial assurance
mechanism. Respondent's inability to secure financial assurance in accordance with this Section
does not excuse performance of any other obligation under this Settlement.
36. Access to Financial Assurance
a. If EPA issues a notice of a Work Takeover under Paragraph 28, then, in
accordance with any applicable financial assurance mechanism EPA may require: (1) the
performance of the Work; and/or (2) that any funds guaranteed be paid in accordance with
Paragraph 36 d .
b. If EPA is notified that the issuer of a financial assurance mechanism intends
to cancel the mechanism, and the affected Respondent fails to provide an alternative financial
assurance mechanism in accordance with this Section at least 30 days prior to the cancellation
date, the funds guaranteed under such mechanism must be paid prior to cancellation in
accordance with Paragraph 38.
c. If, upon issuance of a notice of a Work Takeover under Paragraph 28, either:
(1) EPA is unable for any reason to promptly secure the resources guaranteed under any
applicable financial assurance mechanism [including the related standby funding commitment],
whether in cash or in kind, to continue and complete the Work; or (2) the financial assurance is a
demonstration or guarantee under Paragraph 32 e or 32 f then EPA is entitled to demand an
17

amount, as determined by EPA, sufficient to cover the cost of the remaining Work to be
performed. Respondents
d. shall, within 30 days of such demand, pay the amount demanded as directed
by EPA.
e. Any amounts required to be paid under this Paragraph 36 will be, as directed
by EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA, the State, or
by another person; or (ii) deposited into an interest -bearing account, established at a duly
chartered bank or trust company that is insured by the FDIC, in order to facilitate the completion
of the Work by another person. If payment is made to EPA, EPA may deposit the payment into
the EPA Hazardous Substance Superfund or into the Special Account to be retained and used to
conduct or finance response actions at or in connection with the Site, or to be transferred by EPA
to the EPA Hazardous Substance Superfund.
f. All EPA Work Takeover costs not paid under this Paragraph must be
reimbursed as Future Response Costs under Section XII (Payments for Response Costs).
37. Modification of Amount, Form, or Terms of Financial Assurance. Respondent
may submit, on any anniversary of the Effective Date or at any other time agreed to by the
Parties, a request to change the form, terms, or amount of the financial assurance mechanism.
Any such request must be submitted to EPA in accordance with Section XXI (Modification), and
must include an estimate of the cost of the remaining Work, an explanation of the bases for the
cost calculation, and a description of the proposed changes, if any, to the form or terms of the
financial assurance. EPA will notify Respondent of its decision regarding the request.
Respondent may modify the form, terms, or the amount of the financial assurance mechanism
only in accordance with: (a) EPA's approval; or (b) any resolution of a dispute on the appropriate
amount of financial assurance under Section XIV (Dispute Resolution). Any decision made by
EPA on a request submitted under this Paragraph to change the form or terms of a financial
assurance mechanism shall not be subject to challenge by Respondent pursuant to the dispute
resolution provisions of this Settlement or in any other forum. Respondent shall submit to EPA,
within 30 days after receipt of EPA's approval, or consistent with the terms of the resolution of
the dispute, documentation of the change to the form, terms, or amount of the financial assurance
instrument.
38. Release, Cancellation, or Discontinuation of Financial Assurance. Respondent
may release, cancel, or discontinue any financial assurance provided under this Section only: (a)
if EPA issues a Notice of Completion of Work under Paragraph 27 (Notice of Completion of
Work); (b) in accordance with EPA's approval of such release, cancellation, or discontinuation;
or (c) if there is a dispute regarding the release, cancellation, or discontinuance of any financial
assurance, in accordance with the agreement or final decision resolving such dispute under
Section XIV(Dispute Resolution).
XI. INDEMNIFICATION AND INSURANCE
39. Indemnification.
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a. The United States does not assume any liability by entering into this
Settlement or by virtue of any designation of Respondent as EPA's authorized representatives
under Section 104(e)(1) of CERCLA, 42 U.S.C. § 9604(e)(1), and 40 C.F.R. § 300.400(d)(3).
Respondent shall indemnify, save, and hold harmless the United States, its officials, agents,
employees, contractors, subcontractors, and representatives for or from any and all claims or
causes of action arising from, or on account of, negligent or other wrongful acts or omissions of
Respondent, its officers, directors, employees, agents, contractors, or subcontractors, and any
persons acting on Respondent's behalf or under their control, in carrying out activities under this
Settlement. Further, Respondent agrees to pay the United States all costs it incurs, including
attorneys' fees and other expenses of litigation and settlement arising from, or on account of,
claims made against the United States based on negligent or other wrongful acts or omissions of
Respondent, its officers, directors, employees, agents, contractors, subcontractors, and any
persons acting on their behalf or under its control, in carrying out activities under this Settlement.
The United States may not be held out as a party to any contract entered into by or on behalf of
Respondent in carrying out activities pursuant to this Settlement. Neither Respondent nor any
such contractor shall be considered an agent of the United States.
b. The United States shall give Respondent notice of any claim for which the
United States plans to seek indemnification in accordance with Section XI and shall consult with
Respondent prior to settling such claim.
40. Respondent covenants not to sue and shall not assert any claim or cause of action
against the United States for damages or reimbursement or for set-off of any payments made or
to be made to the United States, arising from or on account of any contract, agreement, or
arrangement between Respondent and any person for performance of Work or other activities on
or relating to the Site, including claims on account of construction delays. In addition,
Respondent shall indemnify and hold harmless the United States with respect to any claims for
damages or reimbursement arising from or on account of any contract, agreement, or
arrangement between any one or more of Respondent and any person for performance of work at
or relating to the Site, including claims on account of construction delays.
41. Insurance. Respondent shall secure, by no later than 15 days before commencing
any on -site Work, the following insurance: (a) commercial general liability insurance with limits
of liability of $1 million per occurrence; (b) automobile liability insurance with limits of liability
of $1 million per accident; and (c) umbrella liability insurance with limits of liability of $5
million in excess of the required commercial general liability and automobile liability limits. The
insurance policy must name EPA as an additional insured with respect to all liability arising out
of the activities performed by or on behalf of Respondent under this Settlement. Respondent
shall maintain this insurance until the first anniversary after issuance of EPA's Notice of
Completion of Work under Paragraph 27. In addition, for the duration of this Settlement,
Respondent shall satisfy, or shall ensure that their contractors or subcontractors satisfy, all
applicable laws and regulations regarding the provision of worker's compensation insurance for
all persons performing the Work on behalf of Respondent in furtherance of this Settlement. Prior
to commencement of the Work, Respondent shall provide to EPA certificates of such insurance
and a copy of each insurance policy. Respondent shall resubmit such certificates and copies of
policies each year on the anniversary of the Effective Date. If Respondent demonstrates by
evidence satisfactory to EPA that any contractor or subcontractor maintains insurance equivalent
19

to that described above, or insurance covering some or all of the same risks but in a lesser
amount, Respondent need provide only that portion of the insurance described above that is not
maintained by the contractor or subcontractor. Respondent shall ensure that all deliverables to
EPA under this Paragraph identify the AZP Process Ponds Site, Mooresboro, NC and the EPA
docket number for this action.
XII. PAYMENTS FOR RESPONSE COSTS
42. Payment Instructions
Within 30 days after the Effective Date, Respondent shall pay to EPA Past Response Costs.
Respondent shall make all payments at https://www.pay.gov at the EPA using the "EPA
Miscellaneous Payments Cincinnati Finance Center" link, and including references to the Site
Name, Docket Number, and Site/Spill ID Number C489 OU1 and the purpose of the payment.
Respondent shall send notices of this payment to CINWD [e-mail] and to
Paula V. Painter by email at [e-mail]. If the payment required under this
Paragraph is late, Respondent shall pay, in addition to any stipulated penalties owed under
Section XV, an additional amount for Interest accrued from the Effective Date until the date of
payment
43. Payments for Future Response Costs. Respondent shall pay to EPA all Future
Response Costs not inconsistent with the NCP.
a. Periodic Bills. On a periodic basis, EPA will send Respondent a bill for
Future Response Costs, including a Superfund Cost Recovery Package Imaging and On -Line
System (SCORPIOS), listing direct and indirect costs paid by EPA, its contractors, and the
United States Department of Justice. Respondent shall make all payments within 30 days after
Respondent's receipt of each bill requiring payment, except as otherwise provided in Paragraph
45 (Contesting Future Response Costs). Respondent shall make all payments, and send notice of
the payments, in accordance with the procedures under Paragraph 42.
b. Deposit of Payments. EPA will deposit the total amount to be paid by
Respondent pursuant to Paragraph 43 a (Periodic Bills) in the EPA Hazardous Substance
Superfund.
44. Interest. If the payment required under this Section is late, Respondent shall pay,
in addition to any stipulated penalties owed under Section XV, an additional amount for Interest
accrued until the date of payment. The Interest on Future Response Costs shall begin to accrue
on 30 days following the date of the bill.
45. Contesting Future Response Costs. Respondent may initiate a dispute under
Section XIV (Dispute Resolution) regarding a Future Response Cost billing under Paragraph 43
(Payments for Future Response Costs), but only if the dispute relates to one or more of the
following issues: (i) whether EPA has made a mathematical error; (ii) whether EPA has included
a cost item that is not within the definition of Future Response Costs; or (iii) whether EPA has
incurred excess costs as a direct result of an EPA action that was inconsistent with a specific
provision or provisions of the NCP. Notwithstanding the timing provisions of Paragraphs 50 and
51 below, to initiate such dispute, Respondent shall submit a Notice of Dispute in writing within
20

30 days after receipt of the bill. Any such Notice of Dispute must specify the contested Future
Response Costs and the basis for objection. If Respondent submits a Notice of Dispute,
Respondent shall within 30 days after receipt of the bill, pay all uncontested Future Response
Costs to EPA in the manner described in Paragraph 43. Simultaneously, Respondent shall
establish an interest -bearing escrow account in a federally insured bank duly charted in the State
of North Carolina and remit to that escrow account funds equivalent to the amount of the
contested Future Response Costs. Respondent shall send to the OSC a copy of the transmittal
letter and check paying the uncontested Future Response Costs and a copy of the correspondence
that establishes and funds the escrow account, including, but not limited to, information
containing the identity of the bank and bank account under which the escrow account is
established as well as a bank statement showing the initial balance of the escrow account. If EPA
prevails in the dispute, within 5 days after the resolution of the dispute, Respondent shall pay the
sums due (with accrued Interest) to EPA in the manner described in Paragraph 42. The dispute
resolution procedures set forth in this Paragraph 45 in conjunction with the procedures set forth
in Section XIV (Dispute Resolution) is the exclusive mechanisms for resolving disputes
concerning Respondent's obligation to reimburse EPA for its Future Response Costs.
XIII. FORCE MAJEURE
46. "Force Majeure" for purposes of this Settlement, means any event arising from
causes beyond the control of Respondent, of any entity controlled by Respondent, or of
Respondent's contractors that delays or prevents the performance of any obligation under this
Settlement despite Respondent's best efforts to fulfill the obligation. Given the need to protect
public health and welfare and the environment, the requirement that Respondent exercise "best
efforts to fulfill the obligation" includes using best efforts to anticipate any potential force
majeure and best efforts to address the effects of any potential force majeure (a) as it is occurring
and (b) following the potential force majeure such that the delay and any adverse effects of the
delay are minimized to the greatest extent possible. "Force majeure" does not include financial
inability to complete the Work or increased cost of performance.
47. If any event occurs for which Respondent will or may claim a force majeure,
Respondent shall notify EPA's OSC orally or by email, within 5 days after the date Respondent
first knew or should have known that the event would likely delay performance. Respondent
shall be deemed to know of any circumstance of which any contractor of, subcontractor of, or
entity controlled by Respondent knew or should have known. Within thirty (30) days thereafter,
Respondent shall send a further notice to EPA that includes: (a) a description of the event and its
effect on Respondent's completion of the requirements of the Settlement; (b) a description of all
actions taken or to be taken to prevent or minimize the adverse effects and delay; (c) the
proposed extension of time for Respondent to complete the requirements of the Settlement; (d) a
statement as to whether, in the opinion of Respondent, the event may cause or contribute to an
endangerment to public health or welfare, or the environment; and (e) all available proof
supporting their claim of Force Majeure.
48. EPA will notify Respondent of its determination whether Respondent is entitled
to relief under Paragraph 46 and, if so, the duration of the extension of time for performance of
the obligations affected by the force majeure. An extension of the time for performance of the
obligations affected by the force majeure shall not, of itself, extend the time for performance of
21

any other obligation. Respondent may initiate dispute resolution under Section XIV regarding
EPA's determination within 15 days after receipt of the determination. In any such proceeding,
Respondent has the burden of proving that they are entitled to relief under Paragraph 46 and that
the proposed extension was or will be warranted under the circumstances. The failure by EPA to
timely complete any activity under the Settlement is not a violation of the Settlement, provided,
however, that if such failure prevents Respondent from timely completing a requirement of the
Settlement, Respondent may seek relief under this Section.
XIV. DISPUTE RESOLUTION
49. Unless otherwise expressly provided in this Settlement, Respondent must use the
dispute resolution procedures of this Section to resolve any dispute arising under this Settlement.
50. Informal Dispute Resolution. If Respondent objects to any EPA action taken
pursuant to this Settlement, Respondent shall send EPA a written Notice of Dispute describing
the objection(s) within thirty (30) days after such action. EPA and Respondent shall have ninety
(90) days from EPA's receipt of Respondent's Notice of Dispute to resolve the dispute through
informal negotiations (the "Negotiation Period"). The Negotiation Period may be extended at the
sole discretion of EPA. By agreement of the Parties, mediation may be used during this informal
negotiation period to assist the parties in reaching a voluntary resolution or narrowing of the
matters in dispute. If the parties reach any agreement pursuant to this Section, they shall reduce it
to writing and, upon signature by the Parties, it is incorporated into and enforceable under this
Settlement.
51. Formal Dispute Resolution. If the Parties cannot resolve the dispute by informal
negotiations, the position advanced by EPA is binding unless Respondent initiate formal dispute
resolution within 30 days after the end of the Negotiation Period. Respondent may initiate formal
dispute resolution by submitting a written statement of position to EPA. EPA's responsive
statement of position is due within 30 days after receipt of the Respondent's initial statement of
position. All statements of position must include supporting factual data, analysis, opinion, and
other documentation. EPA may extend the deadlines for filing statements of position and may
allow the submission of supplemental statements of position. Thereafter, Director of the
Superfund & Emergency Management Division, EPA Region 4, will issue a written decision
resolving the dispute based on the statements of position and any replies and supplemental
statements of position.. EPA's decision shall be incorporated into and become an enforceable
part of this Settlement. Respondent shall fulfill the requirement that was the subject of the
dispute in accordance with the agreement reached or with EPA's decision, whichever occurs.
52. Except as provided in Paragraph 45 (Contesting Future Response Costs) or as
agreed by EPA, the initiation of dispute resolution procedures under this Section does not extend,
postpone, or affect in any way any requirement under this Settlement. Stipulated penalties with
respect to the disputed matter will continue to accrue, but payment is stayed pending resolution
of the dispute, as provided in Paragraph 55.
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XV. STIPULATED PENALTIES
53. Unless the non-compliance is excused under Section XIII (Force Majeure),
Respondent is liable to EPA for the following stipulated penalties:
a. The following stipulated penalties shall accrue per violation per day for
any noncompliance identified in Paragraph 53 b:
Penalty Per Violation Per Day Period of Noncompliance
$ 500
$ 750
$ 1000
b. Obligations
Costs).
1st through 14th day
15th through 30th day
31 st day and beyond
Payment of any amount due under Section XII (Payment of Response
Establishment and maintenance of financial assurance in accordance
with Section X (Financial Assurance).
Establishment of an escrow account to hold any disputed Future
Response Costs under Paragraph 45 (Contesting Future Response Costs).
Timely submission of the Work Plan contemplated under Section VIII
(Work to be Performed).
Timely submission of the Health and Safety Plan.
Timely performance of tasks constituting an element of the Work
contemplated under the EPA -approved Work Plan.
Stipulated Penalty Amounts — Other Deliverables. The following stipulated
penalties shall accrue per violation per day for failure to submit timely or adequate
deliverables pursuant to this Settlement, other than those specified in Paragraph 53 a:
Penalty Per Violation Per Day Period of Noncompliance
$ 500
$ 750
$ 1000
1st through 14th day
15th through 30th day
31 st day and beyond
54. If EPA commences a Work Takeover, pursuant to Paragraph 28, Respondent is
liable for a stipulated penalty in the amount of Five Hundred Thousand dollars $500,000. This
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Stipulated penalty is in addition to the remedies available to EPA under Paragraphs 28 (Work
Takeover) and 36 (Access to Financial Assurance).
55. Stipulated penalties accrue from the date performance is due, or the day a
noncompliance occurs, until the date the requirement is completed or the final day of the
correction of the noncompliance. Stipulated penalties accrue regardless of whether Respondent
has been notified of their noncompliance. Stipulated penalties accrue during any dispute
resolution period, and shall be paid within 15 days after the agreement or the receipt of EPA's
decision or order. However, stipulated penalties shall not accrue: (a) with respect to a deficient
submission under Paragraph 17 (Work Plan and Implementation), during the period, if any,
beginning on the 31 st day after EPA's receipt of such submission until the date that EPA notifies
Respondent of any deficiency; and (b) with respect to a matter that is the subject of dispute
resolution under Paragraph 51 (Formal Dispute Resolution), during the period, if any, beginning
on the 21 st day after EPA's statement of position until the date that the EPA Management
Official issues a final decision regarding such dispute. Nothing in this Settlement prevents the
simultaneous accrual of separate penalties for separate noncompliances with this Settlement.
56. Following EPA's determination that Respondent have failed to comply with a
requirement of this Settlement, EPA may give Respondent written notification of the failure and
describe the noncompliance. EPA may send Respondent a written demand for payment of the
penalties.
57. EPA may send Respondent a demand for stipulated penalties. The demand will
include a description of the noncompliance and will specify the amount of the stipulated
penalties owed. Respondent may initiate dispute resolution under Section XIV (Dispute
Resolution) within 30 days after receipt of the demand. Respondent shall pay the amount
demanded or, if they initiate dispute resolution, the uncontested portion of the amount demanded,
within 30 days after receipt of the demand. All payments to EPA under this Section shall indicate
that the payment is for stipulated penalties and shall be made in accordance with Paragraph 43
(Payments for Future Response Costs).
58. If Respondent fails to pay stipulated penalties when due, Respondent shall pay
Interest on the unpaid stipulated penalties as follows: (a) if Respondent have timely invoked
dispute resolution such that the obligation to pay stipulated penalties has been stayed pending the
outcome of dispute resolution, Interest shall accrue from the date stipulated penalties are due
pursuant to Paragraph 57 until the date of payment; and (b) if Respondent fails to timely invoke
dispute resolution, Interest shall accrue from the date of demand under Paragraph 57 until the
date of payment. If Respondent fails to pay stipulated penalties and Interest when due, the United
States may institute proceedings to collect the penalties and Interest.
59. The payment of penalties and Interest, if any, do not alter any obligation of
Respondent under this Settlement.
60. Nothing in this Settlement limits the authority of EPA to seek any remedy or
sanction available by virtue of Respondent's noncompliances with this Settlement or of the
statutes and regulations upon which it is based, including, penalties under Sections 106(b) and
122(1) of CERCLA, 42 U.S.C. §§ 9606(b) and 9622(l), and punitive damages pursuant to Section
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107(c)(3) of CERCLA, 42 U.S.C. § 9607(c)(3), provided however, that EPA may not seek civil
penalties under Section 106(b) or Section 122(1) of CERCLA or punitive damages pursuant to
Section 107(c)(3) of CERCLA for any noncompliance for which a stipulated penalty is provided
in this Settlement, except in the case of a willful noncompliance with this Settlement or in the
event that EPA assumes performance of a portion or all of the Work pursuant to Paragraph 28
(Work Takeover).
61. Notwithstanding any other provision of this Section, EPA may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued under this
Settlement.
XVI. COVENANTS BY EPA
62. Covenants for Respondent. Subject to Paragraph 63 (EPA's Reservations), EPA
covenants not to sue or to take administrative action against Respondent pursuant to Sections 106
and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), for the Work and Future Response
Costs. These covenants: (a) take effect upon the Effective Date; (b) are conditioned upon the
complete and satisfactory performance by Respondent of its obligations under this Settlement;
(c) extend to the successors of each Respondent but only to the extent that the alleged liability of
the successor of the Respondent is based solely on its status as a successor of the Respondent;
and (d) do not extend to any other person.
63. EPA's Reservations.
a. Except as specifically provided in this Settlement, nothing in this
Settlement limits the authority of EPA or the United States to take, direct, or order all appropriate
actions to protect public health, welfare, or the environment or to prevent, abate, respond to, or
minimize an actual or threatened release of Waste Materials on, at, or from the Site. Further,
nothing in this Settlement prevents EPA from seeking legal or equitable relief to enforce the
terms of this Settlement, from taking other legal or equitable action as it deems appropriate and
necessary, or from requiring Respondent in the future to perform additional activities pursuant to
CERCLA or any other applicable law.
b. The covenants set forth in Section XVI (Covenants by EPA) do not pertain
to any matters other than those expressly identified therein. EPA reserves, and this Settlement is
without prejudice to, all rights against Respondent with respect to all other matters, including:
(1)
liability for failure by Respondent to meet a requirement of this
Settlement;
(2) liability for costs not included within the definition[s] of Future Response
Costs;
(3) liability for performance of response action other than the Work;
(4) criminal liability;
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(5) liability for violations of federal or state law that occur during or after
implementation of the Work;
(6) liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
and
(7) liability arising from the past, present, or future disposal, release or threat
of release of Waste Materials outside of the Site;
XVII. COVENANTS BY RESPONDENT
64. Respondent covenants not to sue and shall not assert any claim or cause of action
against the United States, or its contractors or employees, regarding the Work, Future Response
Costs, and this Settlement, including:
a. any direct or indirect claim for reimbursement from the EPA Hazardous
Substance Superfund through Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C.
§§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of law;
b. any claims under Sections 107 and 113 of CERCLA, Section 7002(a) of
RCRA, 42 U.S.C. § 6972(a), or state law regarding the Work, Future Response Costs, and this
Settlement;
c. any claim arising out of response actions at or in connection with the Site,
including any claim under the United States Constitution, the Tucker Act, 28 U.S.C. § 1491, the
Equal Access to Justice Act, 28 U.S.C. § 2412, or at common law; or
65. Nothing in this Settlement constitutes approval or preauthorization of a claim
within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d).
66. Respondent reserves, and this Settlement is without prejudice to, claims against
the United States, subject to the provisions of Chapter 171 of Title 28 of the United States Code,
and brought pursuant to any statute other than CERCLA or RCRA and for which the waiver of
sovereign immunity is found in a statute other than CERCLA or RCRA, for money damages for
injury or loss of property or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the United States, as that term is defined in 28 U.S.C. § 2671, while
acting within the scope of his or her office or employment under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred. However, the foregoing shall not include any claim based on
EPA's selection of response actions, or the oversight or approval of Respondent's deliverables or
activities.
XVIII. OTHER CLAIMS
67. The United States and EPA do not assume any liability for injuries or damages to
persons or property resulting from any acts or omissions of Respondent.
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68. No action or decision by EPA pursuant to this Settlement gives rise to any right to
judicial review, except as set forth in Section 113(h) of CERCLA, 42 U.S.C. § 9613(h).
XIX. EFFECT OF SETTLEMENT/CONTRIBUTION
69. Nothing in this Settlement creates any rights in, or grants any defense or cause of
action to, any person not a Party to this Settlement. Except as provided in Section XVII
(Covenants by Respondent), each of the Parties expressly reserves any and all rights (including
pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands, and causes
of action that each Party may have with respect to any matter, transaction, or occurrence relating
in any way to the Site against any person not a Party hereto. Nothing in this Settlement
diminishes the right of the United States, under Sections 113(0(2) and (3) of CERCLA, 42
U.S.C. § 9613(f)(2)-(3), to pursue any person not a Party to this Settlement to obtain additional
response costs or response actions and to enter into settlements that give rise to contribution
protection pursuant to Section 113(0(2).
70. The Parties agree that: (a) this Settlement constitutes an administrative settlement
pursuant to which each Respondent has, as of the Effective Date, resolved liability to the United
States within the meaning of Sections 113(0(2), 113(f)(3)(B), and 122(h)(4) of CERCLA, 42
U.S.C. §§ 9613(0(2), 9613(f)(3)(B) and 9622(h)(4); and (b) each Respondent is entitled, as of
the Effective Date, to protection from contribution actions or claims as provided by Sections
113(0(2) and 122(h)(4) of CERCLA, or as may be otherwise provided by law, for the "matters
addressed" in this Settlement. The "matters addressed" in this Settlement are the Work and
Future Response Costs.
71. Respondent shall, with respect to any suit or claim brought by it for matters
related to this Settlement, notify EPA in writing no later than 60 days prior to the initiation of
such suit or claim Respondent also shall, with respect to any suit or claim brought against it for
matters related to this Settlement, notify EPA in writing within 10 days after service of the
complaint or claim upon Respondent. In addition, Respondent shall notify EPA within 10 days
after service or receipt of any Motion for Summary Judgment and within 10 days after receipt of
any order from a court setting a case for trial, for matters related to this Settlement.
72. In any subsequent administrative or judicial proceeding initiated by EPA, or by
the United States on behalf of EPA, for injunctive relief, recovery of response costs, or other
appropriate relief relating to the Site, Respondent shall not assert, and may not maintain, any
defense or claim based upon the principles of waiver, res judicata, claim -splitting, or other
defenses based upon any contention that the claims raised in the subsequent proceeding were or
should have been brought in the instant case; provided, however, that nothing in this Paragraph
affects the enforceability of the covenant by EPA set forth in Section XVI (Covenants by EPA).
XX. RECORDS
73. Respondent shall provide to EPA, upon request, copies of all records, reports,
documents, and other information (including records, reports, documents, and other information
in electronic form) (hereinafter referred to as "Records") within Respondent's possession or
control or that of its contractors or agents relating to activities at the Site or to the
27

implementation of this Settlement, including all Records required to be retained under this
Settlement. Respondent shall also make available to EPA, for purposes of investigation,
information gathering, or testimony, their employees, agents, or representatives with knowledge
of relevant facts concerning the performance of the Work.
74. Privileged and Protected Claims
a. Respondent may assert all or part of a Record requested by EPA is
privileged or protected as provided under federal law, in lieu of providing the Record, provided
that Respondent comply with Paragraph18 a, and except as provided in Paragraph 18 b.
b. If Respondent asserts such a privilege or protection, Respondent shall
provide EPA with the following information regarding such Record: its title; its date; the name,
title, affiliation (e.g., company or firm), and address of the author, of each addressee, and of each
recipient; a description of the Record's contents; and the privilege or protection asserted. If a
claim of privilege or protection applies only to a portion of a Record, Respondent shall provide
the Record to EPA in redacted form to mask the privileged or protected portion only. Respondent
shall retain all Records that they claim to be privileged or protected until EPA has had a
reasonable opportunity to dispute the privilege or protection claim and any such dispute has been
resolved in Respondent's favor.
c. Respondent shall not make any claim of privilege or protection regarding:
(1) any data regarding the Work at the Site, including, all sampling, analytical, monitoring,
hydrogeologic, scientific, chemical, radiological, or engineering data, or the portion of any other
Record that evidences conditions at or around the Site; or (2) the portion of any Record that
Respondent are required to create or generate pursuant to this Settlement.
75. Business Confidential Claims. Respondent may assert that all or part of a
Record provided to EPA under this Section is business confidential to the extent permitted by
and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. §
2.203(b). Respondent shall segregate and clearly identify all Records or parts thereof submitted
under this Settlement for which Respondent asserts business confidentiality claims, labeling each
page or each electronic file "confidential business information" or "CBI." Records that
Respondent claims to be confidential business information will be afforded the protection
specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies Records
when they are submitted to EPA, or if EPA has notified Respondent that the Records are not
confidential under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart
B, the public may be given access to such Records without further notice to Respondent.
76. Notwithstanding any provision of this Settlement, EPA retains all of its
information gathering and inspection authorities and rights, including enforcement actions
related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.
XXI. MODIFICATION
77. The OSC may modify any plan or schedule or SOW in writing or by oral
direction. EPA will promptly memorialize in writing any oral modification, but the modification
28

has as its effective date the date of the OSC's oral direction. Any other requirements of this
Settlement may be modified in writing by mutual agreement of the parties.
78. If Respondent seeks permission to deviate from any approved work plan or
schedule or the SOW, Respondent's Project Coordinator shall submit a written request to EPA
for approval outlining the proposed modification and its basis. Respondent may not proceed with
a requested deviation until receiving oral or written approval from the OSC pursuant to
Paragraph81.
79. No informal advice, guidance, suggestion, or comment by the OSC or other EPA
representatives regarding any deliverable submitted by Respondent relieves Respondent of their
obligation to obtain any formal approval required by this Settlement, or to comply with all
requirements of this Settlement, unless it is formally modified.
XXII. ADDITIONAL REMOVAL ACTION
80. If EPA determines that additional removal actions not included in the Removal
Work Plan or other approved plan(s) are necessary to protect public health, welfare, or the
environment, and such additional removal actions are consistent with the Action Memorandum -
Enforcement, EPA will notify Respondent of that determination. Unless otherwise stated by
EPA, within 60 days after receipt of notice from EPA that additional removal actions are
necessary to protect public health, welfare, or the environment, Respondent shall submit for
approval by EPA a work plan for the additional removal actions. The plan shall conform to the
applicable requirements of Section VIII (Work to Be Performed) of this Settlement. Upon EPA's
approval of the plan pursuant to Paragraph 17 (Work Plan and Implementation), Respondent
shall implement the plan for additional removal actions in accordance with the provisions and
schedule contained therein. This Section does not alter or diminish the OSC's authority to make
oral modifications to any plan or schedule pursuant to Section XXI (Modification).
XXIII. INTEGRATION/APPENDICES
81. This Settlement constitutes the entire agreement among the Parties regarding the
subject matter of the Settlement and supersedes all prior representations, agreements and
understandings, whether oral or written, regarding the subject matter of the Settlement embodied
herein. The following appendices are attached to and incorporated into this Settlement:
a. "Appendix A" is the Action Memorandum -Enforcement.
XXIV. EFFECTIVE DATE
82. This Settlement is effective 5 days after the Settlement is signed by the Regional
Administrator or his/her delegatee.
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83. The undersigned representative of Respondent certifies that he or she is
authorized to enter into the terms and conditions of this Settlement and to execute and legally
bind Respondent to this Settlement.
IT IS SO AGREED AND ORDERED:
U.S. ENVIRONMENTAL PROTECTION AGENCY:
MATTH EW Digitally signed by MATTHEW
TAYLOR
Date: TAYLOR Date: 2022.01.19 14:01:25 -05'00'
James W. Webster, Ph.D., Chief
Emergency Response, Removal, and Prevention Branch
Superfund & Emergency Management Division, Region 4
U.S. EPA
Maurice L. Digitally signed by Maurice L.
Horsey, IV
Date: Horsey, IV Date: 2022.01.19 10:54:57 -05'00'
Maurice Horsey, Chief
Enforcement Branch
Superfund & Emergency Management Division, Region 4
30

Signature Page for Settlement Regarding AZP Process Ponds Site
FOR AMERICAN ZINC PRODUCTS LLC:
0//o 7//og,2.
Dated ( Kd e et
---Vice President and General Manager
American Zinc Products LLC
84 Hicks Grove Road
Mooresboro, NC 28114
31