HomeMy WebLinkAboutSETTLEMENT OF AN EPA SITE SETTLEMENT FOR ALTERNATIVE ENERGY RESOURCES IN THE TOTAL AMOUNT $47,890.66 �/-�' � -
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UNIr URT
SOU'. �.�--- � --- ----- - - - �GIA
AUGUSTA DIVISION
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UNITED STATES OF AMERICA :
and STATE OF GEORGIA :
Plaintiffs, :
: Civil No.
v. :
SETTLING DEFENDANTS :
(Listed in Appendix A) :
� Defendants. : �
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TABLE OF CONTENTS
I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. JURISDICTION .....................................................4
III. PARTIES BOUND . . . . . . . . . . . . . . . � . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IV. DEFINITIONS ..... ...............................................6
V. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. PERF4RMANCE OF THE WORK BY SETTLING PERFORMING
DEFENDANTS ....................................................17
VII. REMEDY REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS . . . . . . . . . . . 25
IX. ACCESS AND INSTITUTIONAL CONTROLS . . . . . . . . . . . . . . . . . . . . . . . . . . 27
X. REPORTING REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
XI. EPA APPROVAL OF PLANS, REPORTS, AND OTHER DELIVERABLES ... 36
XII. PROJECT COORDINATORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
XIII. PERFORMANCE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
XIV. CERTIFICATION OF �COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
XV. EMERGENCY RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
XVI. PAYMENTS FOR RESPONSE COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
XVII. DISBURSEMENT 4F SPECIAL ACCOLJNT FUNDS . . . . . . . . . . . . . . . . . . . . . 62
XVIII. INDEMNIFICATIOI�1 AND INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
XIX. FORCE MAJEURE .................................................71
XX. DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ?4
XXI. STIPULATED PENALTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7�
XXII. COVENANTS BY PLAINTIFFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
XXIII. COVENANTS BY SETTLING PERFORMING DEFENDANTS AND
SE'T'TLING FEDERAL AGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,. . . . . . . . 88
XXIV. DE MINIMIS SETTLEMENT PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
XXV. EFFECT OF SETTLEMENT; CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . 98
XXVI. ACCESS TO INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
XXVII. RETENTION OF RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
XXVIII. NOTICES AND SUBMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
X�IX. RETENTION OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
XXX. APPENDICES .............................. ,...................108
x:XXI. COMMUNITY RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
XX��TL MODIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
�i:XXIII. LODGING AND OPPORTUNITY �OR PUBLIC COMMENT . . . . . . . . . . . . . 1 I 1
X.XXN. SIGNATORIES/SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l ll
�:XXV. F1NAL JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
I. BACKGROUND
A. The United States of America ("United States"), on behalf of the Administrator of
the United States Environmental Protection Agency ("EPA"), tiled a complaint in this rnatter
pursuant to Sections 106 and 107 of the Comprehensive Environmental Response,
Compensa#ion, and Liability Act {"CERCLA"), 42 U.S.C. §§ 9606, 9607.
B. The United States in its complaint seeks, inter alia. (1) reimbursement of costs
incurred by EPA and the Deparhnent of Justice for response actions at the Alternate Energy
Resources, Inc. ("AER") Superfund Site {"Site") in Augusta, Richmond County, Georgia,
together with accrued interest; and (2) performance of response actions at the Site consistent with
the National Contingency Plan, 40 C.F.R. Part 300 (as amended) ("NCP").
C. In accordance with the NCP and Section 121(fl(1)(F) of CERCLA, 42 U.S.C.
$ 9621( fl(1)(F}, EPA notified the State of Georgia {the "State") on September 30, 2010, of
negotiations with potentially responsible parties ("PRPs") regarding the implementation of the
Remedial Design and Remedial Action for the Site, and EPA provided the State with an
opportunity to participate in such negotiations and be a party to this Consent Decree.
D. The State, on behalf of the Director of the Environmental Protection Division
("GA EPD") of the Georgia Department of Natural Resources, joined the United Sta#es as a
Plaintiff in its camplaint and seeks, inter alia: (1) reimbursement of costs incurred for the Site,
together with accrued interest; and (2) performance of response actions at the Site consistent with
the NCP and Code Sections 12-8-71, 12-8-9b, and 12-8-96.1 of the Georgia Hazardous Site
Response Act ("HSRA").
E. In accordance with Section 122{j){1) of CERCLA, 42 U.S.G § 96�2(j)(1), EPA
notified the United States Department of the Interiar and the Georgia Department of Natural
Resources on September 30, 2010, of negotiations with PRPs regazding the release of hazardous
substances that may have resulted in injury to the natural resources under federal trusteeship and
encouraged the trustees to participate in the negotiation af this Consent Decree.
F. Pursuant to Section 105 of CERCLA, 42 U.S.C. � 9605, EPA placed the Site on
the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the
Federal Register on April 19, 2006, 71 Fed. Reg. 20016.
G. On October 16, 2006, in response to a release or a substantial threat of a release of
hazardous substances at or from the Site, a group of PRPs commenced a Remedial Investigation
and Feasibility Study ("RUFS") for the Site, pursuant to 40 C.F.R. § 300.430 and an executed
Adrninistrative Settlement Agreement and Order on Consent. This group of PRPs completed a
Remedial Investigation ("RI") Report on November 11, 2008, and a Feasibility Study ("FS")
Report on April 19, 2Q10.
H. On June 29, 2010, pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA
published notice of the completion of the FS and of the proposed plan for remedial action in a
major local newspaper of general circulation. EPA provided an opportunity for written and oral
comrnents from the public on the proposed plan for remedial action. A copy of the transcript of
the public rneeting is available to the pubiic as part of the administrative record upon which the
Regional Administrator, EPA Region 4, based the selection of the response action.
I. The decision by EPA on the remedial action to be implemented at the Site is
embodied in a final Record of Decision ("ROD"), executed on September 27, 2010, on which the
State had a reasonable opportunity to review and comment and on which the State has given its
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concurrence. Notice of the final plan was published in accordance with Section 117(b) of
CERCLA, 42 U.S.C. § 9617(b).
J. The Settling Defendants to this Consent Decree are comprised of three distinct
groups of parties: Settling Performing Defendants, Settling De Minimis Defendants, and Settling
De Minimis State Agencies. The Settling Defendants do not admit any liability arising out of the
transactions or occurrences alleged in the complaint, nor do they admit or acknowledge that the
release or threatened release of hazardous substances at or from the Site constitutes an imrninent
and substantial endangerment to the public health or welfare or the envirorunent. The Set#ling
Federal Agencies to this Consent Decree are comprised of two distinct groups of parties: Settling
Non-Performing Federal Agencies and 5ettling De Minimis Federal Agencies. The Settling
Federal Agencies do not admit any liability arising out of the transactions or occurrences alleged
in any counterclaim asserted by Settling Defendants or any claim by the State.
K. Information currently known to EPA and the State indicates that the amount of
hazardous substances sent to the Site by the Settling De Minimis Parties (Settling De Minirrais
Defendants, Settling �7e Minimis Federal Agencies, and Settling De lYlinimis State Agencies) is
rninimal in comparison to other hazardous substances at the Site, and that the toxic or other
hazardous effects of the hazardous substances contributed to the Site by the Settling De Minimzs
Parties do not contribute disproportionately to the curnulative toxic or other hazardous effects of
the hazardous substances at the Site. Accordingly, pursuant to Section 122(g)(1)(A) of
CERCLA, 42 U.S.C. § 9622(g)(1)(A), EPA has determined that the amount and the toxic or
other hazardous effects of the substances contributed by each Settling De Minimis Party is
minimal in comparison to other hazardous substances conmibuted to the Site. EPA further has
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determined that prompt settlement with each Settling De Minimis Party is practicable and in the
� public interest within the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. § 9622{g}{ 1).
L. Based upon the information presently available to EPA and the State, EPA and the
State believe that the Work will be properly and prornptly conducted by Settling Performing
Defendants if conducted in accordance with the requirements of this Consent Decree and its
appendices.
M. Solely for the purposes of Section 113(j) of CERCLA, 4� U.S.C. § 9b13(j), the
Remedial Action set forth in the ROD and the Wflrk to be performed by Settling Performing
Defendants shall constitute a response action taken or ordered by the President for which judicial
review shall be limited to the administrative record.
N. The Parties, which are comprised of the United States, the State, and Settling
Defendants, recognize and agree, and the Court by entering this Consent Decree finds, that this
Consent Decree has been negotiated by the Parties in goad faith and that this settlement and
implementation of this Consent Decree will expedite the cleanup of the Site and will avoid
prolonged and coxnplicated litigation between the Parties, and that this Consent Decree is fair,
reasonable, and in tlie public interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
IL JURISDICTION
1. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. §§ 1331 and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b); and pendent jurisdiction
over the claims asserted by the State arising under the laws of Georgia. This Court also has
personal jurisdiction aver the United States, the State, and Settling Defendants. Solely for the
purposes of this Consent Decree and the underlying complaint, the United States, the State, and
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Settling Defendants waive all objections and defenses that they may have to jurisdiction of the
Court or to venue in this District. The United States, the State, and Settling Defendants shall not
challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this
Consent Decree.
III. PARTIES BOLTND
2, This Consent Decree applies to and is binding upon the United States, the State,
and Settling Defendants and their successors and assigns. Any change in ownership or corporate
status of a Settiing Defendant including, but not limited to, any transfer of assets or real or
persanal property, shai] in no way alter such Settling Defendant's responsibilities under this
Consent Decree.
3. Settling Performing Defendants shall provide a capy of this Consent Decree to
each supervisory contractor and any other contractors deemed necessary by Settling Performing
Defendants who are hired to perform the Work required by this Consent�Decree and to each
person representing any Settling Performing Defendant with respect to the Site ar the Work, and
shall condition all contracts entered into hereunder upan perforrnance of the Work in conformity
with the terms of this Consent Decree. Settling Performing Defendants shall nonetheless be
responsible for ensuring that their contractors and subcontractors perform the Work in
accordance with the terms of this Consent Decree. With regard to the activities undertaken
pursuant to this Consent Decree, each contractar and subcontractor shall be deemed to be in a
contractual relationship with Settling Performing Defendants within the meaning of Section
� 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).
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1V. DEFINITIONS
4. Unless otherwise expressly provided in this Consent Decree, terms used in this
Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA shall
have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed
below are used in this Consent Decree or in the appendices attached hereto and incorporated
hereunder, the following definitions shall apply solely for purposes of this Consent Decree:
"Alternate Energy Resources, Inc. Property" or "AER Property" shall mean the
approximately 2.6 acres of property, located at 2736 Walden Drive in Augusta, Richmond
County, Georgia, on which Alternate Energy Resources, Inc. formerly operated its business.
"Altemate Energy Resources Speciai Account" shall mean the special account, within the
EPA Hazardous Substances Superfund, established for the Site by EPA pursuant to Section
122(b)(3) of CERCLA, 42 U.S.C. § 962�{b}{3).
"Alternate Energy Resources Disbursemen# Special Account" shall mean the special
account, within the EPA Hazardous Substances Superfund, established for the Site by EPA
pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3), and Paragraph 61 of this
Consent Decree.
"CERCLA" shali mean the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. �§ 9601, et seq.
"Consent Decree" or "Decree" shall mean this Consent Decree and all appendices
attached hereto (listed in Section ��XX). In the event of conflict between this Consent Decree
and any appendix, this Consent Decree shall control.
"Cost Matrix" shall mean the three documents, set forth in Appendix C, Appendix D-2,
and Appendix E, that collectively sets forth the amounts of payment due for all Settling De
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,�Ylinrmis Parties and includes an amount for: (a) Past Response Costs; (b) State �Aast Response
Casts; (c) projected Fu#ure Response Costs to be incurred at or in connection with the Site; and
{d) a premium to cover the risks and uncertainties associated with this settlement, including but
not limited to, the risk that total response costs incurred or to be incurred at or in connection with
the Site by the EPA Hazardous Substance Superfund, ar by any other person, will exceed the
estimated tota] response costs upon which Settling De Minimis Parties' payments are based.
"Day" shall mean a calendar day unless expressly stated to be a working day. The term
"working day" shall mean a day other than a Saturday, Sunday, or federal holiday. In computing
any period of time under this Consent Decree, where the last day wauld fall on a Saturday,
Sunday, or federal holiday, the period shall run until the close of business of the next working
day.
"Effective Date" shall be the date upon which this Consent Decree is entered by the Court
as recorded on the Court docket, or, if the Court instead issues an order approving the Consent
Decree, the date such order is recorded on the Court docket.
"EPA" shall mean the United States Environmental Protection Agency and any successor
departments or agencies of the United States.
"GA EPD" shall mean the Environmental Protection Division of the Georgia Department
of Natural Resources, and any successor departments or agencies of the 5tate.
"Puture Oversight Costs" shall mean that portion of Future Response Costs that EPA
incurs in monitoring and supervising Settling Performing Defendants' performance of the Work
to determine whether such performance is consistent with the requirements of this Consent
Decree, including costs incurred in reviewing plans, reports, and other deliverables submitted
pursuant to this Consent Decree, as well as costs incurred in overseeing implementation of the
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Wc�rk; however, Future Oversight Costs do not include, inter alia: the costs incurred by the
United States pursuant to Sections ViI (Remedy Review), I� (Access and Institutional Controls),
XV {Emergency Response), and Paragraph 4� (Funding for Work Takeover), or the costs
incurred by the United States in enforcing the terms of this Consent Decree, including all costs
incurred in connection with Dispute Resolution pursuant to Section XX (Dispute Resolution) and
� all litigation costs.
"Future Response Costs" shall mean ail costs, including, but not limited to, direct and
indirect costs, that the United States incurs in reviewing or developing plans, reports, and other
deliverables submitted pursuant #o this Consent Decree, in overseeing implementation of the
Work, or otherwise implementing, overseeing, or enforcing this Consent Decree, including, but
not limited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred
pursuant to Sections VII (Rernedy Review), IX (Access and Institutional Controls) (including,
but not limited to, the cost of attorney time and any monies paid to secure access and/or to
secure, implemen#, monitor, maintain, or enforce Institutional Controls including, but not limited
to, the amount of just compensation), XV (Emergency Response), Paragraph 47 (Funding for
Work Takeover), and Section X��XI (Community Relations). Future Response Costs shall also
include all Interim Response Costs, and all Interest on those Aast Response Costs Settling
Defendants have agreed to pay under this Consent Decree that has accrued pursuant to 42 U.S.C.
§ 9607(a) during the periad from Apri17, 2011, to the Effective Date.
"Institutional Controls" shall mean Proprietary Controls and state or local laws,
regulations, ordinances, zoning restrictions, or other governmental cantrols or notices that:
(a) limit land, water, and/or resource use to minimize the potential for human exposure to Waste
Materials atthe Site; (b) limi# land, water, and/or resource use to implemen#, ensure
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non-interference with, or ensure the protectiveness of the Remedial Action; and/or (c) provide
information intended to modify or guide human behavior at the Site.
"Institutional Control Implementation and Assurance Pian" or "ICIAP" shall mean the
plan for implementing, maintaining, manitoring, and reporting on the Institutional Controls set
forth in the ROD, prepared in accordance with the SOW.
"Interim Resp4nse Costs" shall mean all costs, including direct and indirect costs,
(a) paid by the United States in connection with the Site between April 7, 2011, and the Effective
Date, or (b) incurred prior ta the Effective Date but paid after that date.
"Interest" shall mean interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on
October 1 of each year, in accordance with 42 U.S.C. § 9607{a). The applicable rate of interest
shall 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.
"Interest Earned" shall mean interest earned on amounts in the Alternate Energy
Resources Disbursement Special Account, which shall be computed monthly at a rate based on
the annual ret�arn on investments of the Hazardous Substance Superfund. The applicable rate of
interest shall be the rate in effect at the time the interest accrues.
"Municipal Solid Waste" shall mean waste material: (a) generated by a household
(including a single or multifamily residence); or (b) generated by a commercial, industrial or
institutional entity, to #he extent that the waste rnaterial (i) is essentially the same as waste
normally generated by a household; (ii) is collected and disposed of with other municipal solid
waste as part of normal municipal solid waste collection services; and (iii) contains a relative
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quantity of hazardous substances no greater than the relative quantity of hazardnus substances
contained in waste material generated by a typical single-family household.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA,
42 U.S.C. � 9605, codified at 4Q C.F.R. Part 300, and any amendments thereta
"Operation and Maintenance" or "O&M" shall mean all activities required to maintain
the effectiveness of the Remedial Action as required under the Operation and Maintenance Plan
approved or develaped by EPA pursuant to Section VI (Performance of the V�ork by Settling
Defendants) and the SOW, and maintenance, monitoring, and enforcement of Institutional
Controls as provided in the ICIAP.
"Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral
or an upper or lower case letter.
"Parties" shall mean the United States, the Sta#e of Georgia, and Settling Defendants.
"Past Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States paid at or in connection with ihe Site through April 7, 201 l,
plus Interest on all such costs which has accrued pursuant to 42 U.S.C. § 9607(a) through such
date.
"Performance Standards" shall rnean the cleanup standards and other measures of
achievement of the goals of the Rernedial Action, set forth in the ROD and the SOW and any
modified standards established pursuant to this Consent Decree, including any additional
performance standards identified by EPA during Remedial Design.
"Plaintiffs" shall mean the United States and the State of Georgia.
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"Praprietary Controls" shall mean easements or covenants running with the land that
(a) limit land, water or resource use andlor provide access rights and {b) are created pursuant to
common law or statutory law by an instrument that is recorded by the owner in the appropriate
land records office.
"RCRA" shall mean the Solid Waste Disposai Act, as amended, 42 U.S.C. §§ 6901, et
seq. (also known as the Resource Conservation and Recovery Act).
"Record of Decision" or "ROD" shall mean the EPA Recard of Decision relating to the
Site signed on September 27, 2010, by the EPA Region 4 Superfund Division Director, and all
attachments thereto. The ROD is attached as Appendix G.
"Remediai Action" shall mean all activities Settling Perfarming Defendants are required
to perform under the Consent Decree to implement the ROD, in accordance with the SOW, the
final Rernedial Design and Remedial Action Work Plans, and other plans appmved by EPA,
including implementation of Ins#itutional Controis, until the Performance Standards are met, and
excluding performance of the Rernedial Design, O&M, and the activities required under
Section XXVII {Retention of Records).
"Remedial Action Work Plan" shall mean the document developed pursuant to
Paragraph 11 of this Consent Decree and approved by EPA, and any modifications thereto, made
pursuant to this Consent Decree.
"Remediai Design" shall mean those activities to be undertaken by Settling Performing
Defendants to develop the final plans and specifications for the Remedial Action pursuant to the
Remedial Design Work Plan.
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"Remedial Design Work Plan" shall mean the document developed pursuant to
Paragraph 10 of this Consent Decree and approved by EPA, and any modifications thereto, made
pursuant to this Consent Decree.
"Section" shall mean a portion of this Consent Decree identified by a Roman numeral.
"Settling Defendants" shall mean those Parties identified in Appendix A, who are either
Settling Pertorming Defendants, Settling De Minimis Defendants, or Settling De Minimzs State
Agencies.
"Settling De Minimis Defendants" shall mean those Parties identified in the Cost Matrix
in Appendix C who have signed a signature page and, with the exception of W.R. Grace & Co.,
remitted payment in full to their steering committee representative prior to EPA's execution of
this Consent Decree.
"Settling De Minimis Federal Agencies" shall mean those Parties identified in the Cost
Matrix in Appendix D-2 and the Army Air Force Exchange Service.
`tSettling De Minimis Parties" shall mean all Settling De �iinirnis Defendants, Settling De
Minimis State Agencies, and Settling De Minimis Federal Agencies. The criteria for qualifying
as a Settling De Minimis Party are set forth in Appendix K.
"Settling De Minimis State Agencies" shall mean those Parties identified in the Cost
Matrix in Appendix E.
"Settling Federal Agencies" shall mean Settling De Mrnimis Federal Agencies and
Settling Nan-Perfonning Federal Agencies.
"Settling Non-Performing Federal Agencies" shall mean #hose Parties identified in
Appendix D-1.
"Settling Performing Defendants" shall mean those Parties identified in Appendix B.
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"Site" shall mean the Alternate Energy Resources, Inc. ("AER") Superfund Site,
encompassing the AER Property and the areal extent of soil and groundwater contamination
emanating from the AER Property, including the contaminated groundwater plume beneath and
downgradient of the AER Property, depicted generally on the map attached as Appendix F.
"State" shall mean the State of Georgia.
"State Interim Response Costs" shall mean all costs, including direct and indirect costs,
{a) paid by the State in connection with the Site between April 7, 2011, and the Effective Date, or
(b) incurred prior to the Effective Date but paid after that date.
"State Future Response Costs" shall mean all costs, including, but not limited to, direct
and indirect costs, that the State incurs in reviewing or developing plans, reports, and other
deliverables submitted pursuant to this Consent Decree, in overseeing implementation of the
Work, or otherwise implementing, overseeing, or enforcing this Consent Decree, including, but
not lirnited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred
pursuant to Sections VII (Remedy Review), IX (Access and Institutional Controls) {including,
but not limited to, the cost of attorney time and any monies paid ta secure access andJor to
secure, implement, monitor, maintain, or enforce Institutional Contro�s including, but not limited
to, the amount of just compensation), XV (Emergency Response), Paragraph 47 (Funding far
Work Takeover), and Section XXXI (Community Relations). State Future Response Costs shall
also include all State Interim Respanse Costs, and all Interest on those State Past Response Costs
Settling Defendants have agreed to pay under this Consent Decree that has accrued pursuant to
42 U.S.C. § 9607{a) during the period from April 7, 2011, to the Effective Date.
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"State Past Response Costs" shall mean aIl casts, including, but not limited to, direct and
indirect costs, that the State paid at or in connecfiion with the Site through Apri17, 2011, plus
Interest on all such costs which has accrued pursuant to 42 U.S.C. § 9b07(a) through such date.
"Staternent of Work" or "SOW" shall mean the statement of work for implementation of
the Remedial Design, Remedial Action, and O&M at the Site, as set forth in Appendix H to this
Consent Decree and any modifications made in accordance with this Consent Decree.
"Supervising Contractor" shall mean the principal contractor retained by Settling
Performing Defendants to supervise and direct the implementation of the Work under this
Consent Decree.
"Transfer" shall mean 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" shall mean the United States of America and each department, agency
and instrumentality of the United States, including EPA and the Settling Federal Agencies.
"Waste Material" shall mean (a) any "hazardous substance" under Section 1 O1(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).
"Work" shall mean all activities and obligations Settling Performing Defendants are
required to perform underthis Consent Decree, except the activities required under Section
XXVII (Re#ention of Records).
14
V. GENERAL PROVISIONS
5. Objectives of the Parties. The objectives of the Parties in entering into this
Consent Decree are to protect public health or weltare or the environment by the design and
implementation of response actions at the Site by Settling Performing Defendants, to pay
response costs of the Plaintiffs, and to resolve the claims of Plaintiffs against Settling Defendants
and the claims of the Settling Defendants, which have been or couid have been asserted against
the United States, the State, or any other Settling Defendant, with regard to this Site as provided
in this Consent Decree. The objectives of the Parties in entering into this Consent Decree also
are to provide all Settling De Minimis Parties with contribution protection with regard to the Site
pursuant to Sections 113(t)(2) and 122(g)(5) of CERCLA, 42 U.S.C. §§ 9613(fl(2) and
9b22(g){5).
b. Commitments bv Settlin�; Defendants and Settling Federal Agencies.
(a) Settlin�Performing Defendants. Settling Performing Defendants shall
finance and perform #he Work in accordance with this Consent Decree, the ROD, the SOW, and
all work plans and other plans, standards, specifications, and schedules set forth in this Consent
Decree or developed by Settling Performing Defendants and approved by EPA pursuant to this
Consent Decree. Settling Performing Defendants shall pay the United States and the State for
Past Response Costs, State Past Response Costs, Future Response Costs, and State Future
Response Costs as provided in this Consent Decree.
(b) The obligations of Settling Performing Defendants to finance and perform
the Work, including obligations to pay amounts due under this Consent Decree, are joint and
several. In the event of the insolvency of any Settling Performing Defendan# or the failure by any
15
Settling Performing Defendant ta implement any requirement af this Consent Decree, the
remaining Settling Performing Defendants shall complete all such requirements.
(c) Settling Non-Pertorming Federal Agencies. The Settling Non-Performing
Federal Agencies shall pay the Settling Performing Defendants in accordance with the terms of
Paragraph 55, below, in order to resolve their obligations for the Work, Past Response Costs,
State Past Response Costs, Future Response Costs, and State Future Response Costs at the Site,
as well as recoverable costs under Section 107 of CERCLA, 42 U.S.C. § 9607, incurred by the
Settling Performing Defendants prior to the Effective Date.
� (d) � Settling De Minimzs Parties. Settling De Minimis Parties shall pay EPA
the amount designated for each Settling De Minimis Party in accordance with the Cost Matrix
and as provided in this Consent Decree. Settling De Minimis Defendants and Settling De
Minimis Federal Agencies shall pay Settling Performing Defendants, and Settiing De Minimis
State Agencies shall pay the State, for their respective shares af State Past Response Costs in
accordance with the Cost Matrix and as provided in this Consent Decree.
�7. Compliance With Applicable Law. All activities undertaken by Settling
Performing Defendants pursuant to this Consent Decree shall be performed in accordance with
the requirements of all applicable federal and state laws and regulations. Settling Performing
Defendants must also cornply with all applicable or relevant and appropriate requirements of all
federal and state environmental laws as set forth in the ROD and the SOW. The acrivities
conducted pursuant to this Consent Decree, if approved by EPA, shali be deemed to be cansistent
with the NCP.
l6
8. Permits
(a) As provided in Section 121(e) of CERCLA, 42 U.S.C. � 9621(e), and
Section 300.400(e} of the NCP, 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, Settiing
Performing Defendants shall submit timely and camplete applications and take al] other actions
necessary to obtain all such permits or approvals.
(b) Settling Perfo�ning Defendants may seek relief under the provisions of
Section XIX (Force Majeure) for any delay in the perforrnance of the Work resulting from a
failure to obtain, or a delay in obtaining, any perrnit or approval referenced in Paragraph 8(a) and
required for the Work, provided that they have submitted timely and complete applications and
taken all other actions necessary to obtain all such permits or approvals.
(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. ,
VI. PERFORMANCE OF THE WORK BY SETTLING PERFORMING DEFENDANTS
9. Selection of Supervising Contractor.
{a) All aspects of the Work to be performed by Settling Performing
Defendants pursuant to Sections VI (Performance of the Work by Settling Performing
Defendants), VII {Remedy Review), VIII (Quality Assurance, Sampling and Data Analysis), IX
(Access and Institutional Controls), and XV (Emergency Response) shall be under the direction
and supervision of the Supervising Contractor, the selection of which shall be subject to
disapproval by EPA. Within 30 days after the lodging of this Consent Decree, Settling
� 17
Perfarming Defendants shall notify EPA and the State in writing of the name, title, and
qualifications of any contractor proposed to be the Supervising Contractor. With respect to any
contractor proposed ta be Supervising Contractor, Settling Performing Defendants shall
dernonstrate that the proposed contractor has a quality assurance system that complies with
ANSUASQC E4-1994, "Specifications and Guidelines for Quality Systems for Environmental
Data Collection and Environmental Technology Programs" (American National Standard,
January 5, 1995}, by submitting a copy of the proposed contractor's Quality Management Plan
{"QMP"). The QMP should be prepared in accordance with "EPA Requirements for Quality
Management Plans {QA/R-2)" (EPA/240JB-01I002, March 2001, reissued May 2006) or '
equivalent documentation as determined by EPA. EPA will issue a notice of disapproval or an
authorization to proceed regarding hiring of the proposed contractor. If at any time thereafter,
Settling Performing Defendants propose to change a Supervising Contractor, Settling Performing
Defendants shall give such notice to EPA and the State and rnust obtain an authorization to
praceed from EPA, after a reasonable opportunity for review and comment by the State, before
the new Supervising Contractor performs, directs, or supervises any Work under this Consent
Decree.
(b) Tf EPA disapproves a proposed Supervising Contractor, EPA will notify
Settling Performing Defendants in writing. Settling Performing Defendants shall submit to EPA
and the State a list of contractors, including the qualifications of each contractor, that would be
acceptable to them within 30 days of receipt of EPA's disapproval of the contractor previously
proposed. EPA will provide written notice of the names of any contractor{s) that it disapproves
and an authorization to proceed with respect ta any of the other confiractors. Settling Performing
Defendants may select any contractor from that list that is no# disapproved and shall notify EPA
l8
and the State of the name of the contractor selected within 21 days of EPA's authorization to
proceed.
(c) If EPA fails to provide written notice of its authorization to proceed or
disapproval as provided in this Paragraph and this failure prevents Settling Perfornling
Defendants from meeting one or more deadlines in a plan approved by EPA pursuant to this
Consent Decree, Settling Performing Defendants may seek relief under Section XIX (Force
Majeure}.
10. Remedial Desisn
(a) In accordance with the schedules established in Sections IV(A), N{B), and
IV(D) of the SOW, Settling Performing Defendants shall submit to EPA and the State soil and
groundwater work plans for the design of the Remedial Action at the Site ("Remedial Design
Work Plans" or "RD Work Pians"). The Remedial Design Work Plans sha11 provide for design
of the remedy set forth in the ROD, in accordance with the SOW and for achievement of the
Performance Standards and other requirements set forth in the ROD, this Consent Decree and/or
the SOW. The Remedial Design Work Plans and all other deliverables required as part of the
Remedial Design, as set forth in the SOW, shall, upon approval by EPA, be incorporated into and
enforceable under this Consent Decree.
(b) The soil component of the Remedial Design shali include, but not be
limited to, all deliverables identified in Section IV(B) of the SOW.
(c) The goundwater component of the Remedial Design shall include, but not
be limited to, all deliverables iden#ified in Section N(D) af the SOW.
(d) Upon approval of the Rernedial Design Work Plans by EPA, after a
reasonable opportunity for review and comment by #he State, and submission of the Health and
19
Safety Plan for all field activities to EPA and the State, Settling Performing Defendants shall
implement the Remedial Design Work Plans. Settling Performing Defendants shall submit to
EPA and the State all plans, reparts, and other deliverables required under the appraved
Remedial Design Work Plans in accordance with the approved schedule for review and approval
pursuant to Section XI (EPA Approval of Plans and Other Submissions). Unless otherwise
directed by EPA, Settling Performing Defendants shall not comrnence further Remedial Design
activities at the Site prior to approval of the Remedial Design Wark Plans.
11. Remedial Action
{a) In accordance with the schedules established in 5ections N{C) and N(E)
of the SOW, Settling Performing Defendants shall submit to EPA and the State work plans for
the performance of the soil and groundwater Remedial Action at the Site ("Remedial Action
Work Plans"). The Remedial Action Work Plans shall provide for construction and
impl+ementation of the remedy set forth in the ROD and achievement of the Performance
Standards, in accordance with this Consent Decree, the ROD, the SOt�, and the design plans and
specifications developed in accordance with the Remedial Design Work Plans and approved by
EPA. The Remedial Action Work Plans and all other deliverables required as part of the
Remedial Action shall, upon approval by EPA, be incorporated into and enforceable under this
Consent Decree.
(b} The Soil cornponent of the Remediai Action shall include, but not be
limited to, all deliverables identified in Section N{C) of the SOW, �
(c) The Groundwater component of the Remedial Action shall include, but not
be limited to, all deliverables identified in Sectian IV(E) of the SOW.
20
(d) Upon approval of the Remedial Action Work Plans by EPA, after a
reasonable opportunity for review and comment by the State, Settling Performing Defendants
shall implement the activities required under the Remedial Action Work Plans. Settling
Performing Defendants shall submit to EPA and the State all reports and other deliverables
required under the approved Remedial Action Work Plans in accordance with the approved
schedule for review and approval pursuant to Section XI (EPA Approval of Plans and Other
Suhmissions). Unless otherwise directed by EPA, Settling Pertorming Defendants shall not
cornmence physical Remedial Action activities at the Site prior to approval of the Remedial
Action Work Plans.
12. Settling Performing Defendants shall continue to implement the Remedial Action
until the Performance Standards are achieved. Settling PerForming Defendants sha]1 implement
O&M for so long thereafter as is required by this Consent Decree.
13. Modification of SOW or Related Work Plans
(a) lf EPA determines that it is necessary to modify the work specified in the
SOW andlor in work plans developed pursuant to the SOW to achieve and maintain the
Performance Standards or to carry out and maintain the effectiveness of the remedy set forth in
the ROD, and such rnodification is consistent with the scope of the remedy se# forth in the ROD,
then EPA may require that such modification be incorporated in the SOW and/or such work
plans, or EPA rnay issue such moditication in writing and shall notify Settling Performing
Defendants of such modification. For the purposes of this Paragraph and Paragraphs 49
(Completion of the Remedial Action) and 50 (Completion of the Work) only, the "scope of the
remedy set forth in the ROD" includes remediating, to Performance Standards, all soil, sediment,
and groundwater contamination related to the Site, including contamination that is identified on
21
or beyond the AER Praperty boundary, following the sampling that will be conducted by the
Settling Performing Defendants in accordance with the ROD and the 50W. If Settling
Performing Defendants object to the moditication they may, within 30 days after EPA's
notification, seek dispute resolution under Paragraph 78 (Record t�eview).
(b) The SOW and/or related work plans shall be modified: (i) in accordance
with the modification issued by EPA; or (ii) if Settling Performing Defendants invoke dispute
resolution, in accordance with the final resolu#ion of the dispute. The modification sha11 be
incorporated into and enforceable under this Consent Decree, and Settling Performing
Defendants shall irnplement all work required by such modification. Settling Performing
, Defendants shall incorporate the modification into the Remedial Design or Rernedial Action
Work Plan under Paragraphs 10 or 11, as appropriate.
(c) Settling Performing Defendants shall implement any work required by any
modifications incorporated in the SOW and/or in the work plans developed pursuant to the SOW
in accordance with this Paragraph.
(d) Nothing in this Paragraph shall be construed to limit EPA's authority to
require performance of further response actions as otherwise provided in this Consent Decree.
14. Nothing in this Consent Decree, the SOW, or the Remedial Design or Remedial
Action Work Plans constitutes a warranty or representation of any kind by Plaintiffs that
compliance with the work requirements set forth in the SOW and the Work Plans will achieve
the Performance Standards.
, 15. Off-Site Shiprnent of Waste MateriaL
(a) Settling Performing Defendants may ship Waste Material from the Site to
an off-Site facility only if they verify, prior to any shipment, that the aff-Site facility is operating
22
in compliance with the requirernents of Section 121(d)(3) of CERCLA, 42 U.S.C. � 9b21{d){3),
and 40 C.F.R. � 300.440, by obtaining a determination from EPA that the proposed receiving �
facility is operating in connpliance with 42 U.S.C. � 9621(d)(3) and 40 C.F.R. § 300.440.
(b) Settling Performing Defendants 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
EPA Project Coordinator. This notice requirement shall not apply to any off-Site shipments
when the total quantity of all such shipments will not exceed 10 cubic yards, The written notice
shall include the following information, if available: (i) the name and location of the receiving
facility; (ii) the type and quantity of Waste Material to be shipped; (iii) the schedule for the
shipment; and (iv) the method of transportation. Settling Performing Defendants also shall notify
the state environmental official referenced above and the EPA Project Coordinator of any major
changes in the shipment plan, such as a decision to ship the Waste Material to a different out-of-
state facility. Settling Performing Defendants shall provide the written notice after the award of
the contract for Remedial Action construction and before the Waste Material is shipped.
VII. REMEDY REVIEW
16. Periodic Review. Settling Performing Defendants shall conduct any studies and
investigations that EPA requests in order to permit EPA to conduct reviews of whether the
Remedial Action is pratec#ive of human health and the environment at least every five years as
required by Section 121(c) of CERCLA, 42 U.S.C.§ 9621(c), a.nd any applicabie regulations.
17. EPA Selection of Further Response Actions, If EPA deterrnines, at any time, that
the Remedial Action is no# protective of human health and the environmen#, EPA may select
23
further response actions for the Site in accordance with the requirements of CERCLA and the
NCP.
18. O�portunitv To Comment. Settling PerForming Defendants and, if required by
Sections 113(k)(2) or 117 of CERCLA, 42 U.S.C. § 9613(k){2) or 9617, the public, will be
provided with an opportunity to comment on any further response actions proposed by EPA as a
result of the review conducted pursuant to Section 121(cj of CERCLA and to submit written
comments for the record during the comment period.
19. Settling Performing Defendants' Obli�ation To Perform Further Response Actions.
If EPA selec#s further response actions for the Site, EPA may require Settling Perfarming
Defendants to perform such further response actions, but only to the extent that the reopener
conditions in Paragraph 95 or Paragraph 96 (United States' Pre- and Post-Certification
Reservations) are satisfied. Settling Performing Defendants may invoke the procedures set forth in
Section XX (Dispute Resolution) to dispute (a) EPA's deterrnination that the reopener conditions
of Paragraph 95 or Paragraph 96 of Section XXII (Covenants by Plaintiffl are satisfied, {b) EPA's
determination that the Remedial Action is not protective of human health and the environment, or
(c) EPA's seiection of the further response actions. Disputes pertaining to whether the Remedial
Action is protective or to EPA's selection of further response actions shall be resolved pursuant to
Paragraph 78 (Record Review).
20. Submission of Plans. If Settling Performing Defendants are required to perform
further response actions pursuant to Paragraph 19, they shall submit a plan for such response action
to EPA for approval in accardance with the procedures of Section VI (Performance of the Work by
Settling Performing Defendants). Settling Performing Defendants shall implement the approved
plan in accflrdance with this Consent Decree.
24
VIII. QUALITY A5SURANCE, SAMPLIN�, AND DATA ANALYSIS �
21. Oualitv Assurance.
(a) Settling Performing Defendants shall use quality assurance, quality control,
and chain of custody procedures for all treatability, design, cornpliance and monitoring samples in
accordance with "EPA Requirements for Quality Assurance Project Plans (QA/RS)" (EPA/240/B-
011003, March 2001, reissued May 2006), "Guidance for Quality Assurance Project Plans (QA/G-
5)" (EPA/240JR-02/009, December 2002), and subsequent atnendments to such guidelines upon
notification by EPA to Settling Performing Defendants of such amendment. Amended guidelines
shall apply only to procedures conducted after such natification.
{b) Prior to the cammencement of any monitoring project under this Consent
Decree, Settling Performing Defendants shall submit to EPA for approval, after a reasonable
opportunity for review and comment by the State, a Quality Assurance Project Plan ("QAPP") that
is consistent with the SOW, the NCP, and applicable guidance documents. If relevant to the
proceeding, the Parties agree that validated sampling data generated in accordance with the
QAPP{s} and reviewed and approved by EPA shall be admissible as evidence, without objection, in
any proceeding under this Consent Decree. Settling Performing Defendants shall ensure that EPA
and State personnel and their authorized representa#ives are allowed access at reasonable times to
all labora#ories utilized by Settling Performing Defendants in implementing this Consent Decree.
In additian, Settling Perforrning Defendants shall ensure that such labaratories shall analyze all
samples submitted by EPA pursuant to the QAPP for quality assurance monitoring. Settling
Performing Defendants shail ensure that the laboratories they utilize for the analysis of samples
taken pursuant to this Consent Decree perform all analyses according to accepted EPA methods.
Accepted EPA rnethods consist ot those methods that are docurnented in the "USEPA Contract
25
Labora#ory Program Statement of Work for Inorganic Superfund Methods, ISMOI .2," and the
"USEPA Contract Laboratory Program Statement of Work for Organic Analysis, SOM01.2," and
any amendments made thereto during the course of the implementation of #his Decree; however,
upon approval by EPA, after opportunity for review and comment by the State, Settling Performing
Defendan#s may use other analytical methods which are as stringent as or more stringent than the
CLP-approved methods. Settling Performing Defendants shall ensure that all laboratories they use
for analysis of samples taken pursuant to this Consent Decree participate in an EPA or EPA-
equivalent QAIQC program. Settling Performing Defendants shall use only laboratories that have
a documented Quality Systexn which cornplies with ANSUASQC E4-1994, "Specifications and
Guidelines for Quality Systems for Environrnental Data Collection and Environmental Technology
Programs" (American National Standard, January 5, 1995), and "EPA Requirements for Quality
Management Plans (QA/R-2}" (EPA/2441B-01/002, March 2001, reissued May 2006) or equivalent
documentation as determined by EPA. EPA may consider laboratories accredited under the
National Environmental Laboratory Accreditation Program ("NELAP") as meeting the Quality
System requirements. Settiing Performing Defendants shall ensure that all field methodologies
utilized in collecting sarnples for subsequent analysis pursuant to this Consent Decree are
conducted in accordance with the procedures set forth in the QAPP approved by EPA.
22. Upon request, Settling Performing Defendants shall allow split or duplicate samples
to be taken by EPA and the State or their authorized representatives. Settling Performing
Defendants shall notify EPA and the State not less than 28 days in advance of any sample
collection activity unless shorter notice is agreed to by EPA. In addition, EPA and the State shall
have the right to take any additional samples that EPA or the State deem necessary. Upon request,
EPA and the State shall allow Settling Performing Defendants to take split or duplicate samples of
26
any samples they take as part of Plaintiffs' oversight of Settling Performing Defendants'
implementatian of the Work.
23. Settling Performing Defendants shall submit to EPA and the State copies, via
electronic media, of the results of all sampling and/or tests or other data obtained ar generated by
or on behalf of Settling Performing Defendants with respect to the Site and/or the implementation
of this Consent Decree unless EPA agrees otherwise.
24. No#withstanding any provision of this Consent Decree, the United States a.nd the
State 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.
IX. ACCESS AND 1NSTITUTIONAL CONTROLS
25. If the Site, or any other real proper�y where access or land/water use restrictions are
needed, is owned or controlled by any of Settling Defendants:
(a) such Settiing Defendants shall, commencing on the date of lodging of the
Consent Decree, provide the United States, the State and the other Settling Performing Defendants,
and their representatives, contractors, and subconfiractars, with access at all reasonable tirnes to the
Site, or such other real property, to conduct any activity regarding the Consent Decree including,
but not limited to, the following activities:
(i) Monitoring the Work; �
(ii) Verifying any data or information submitted to the United States or
the State;
(iii) Conducting investigations regarding contamination at or near the
Site;
27
(iv) Obtaining samples;
(v) Assessing the need for, planning, or implementing additional
response actions at or near the Site;
(vi) Assessing implementation of quality assurance and quality control
practices as defined in the approved Quality Assurance Project Plans;
(vii) Implementing the Work pursuant to the conditions set forth in
Paragraph 99 {Work Takeover);
{viii) Inspecting and copying records, operating logs, contracts, or other
dacuments maintained or generated by Settling Performing Defendants or their agents,
consistent with Section XXVI {Access to Information);
(ix) Assessing Settling Performing Defendants' compliance with the
Consent Decree;
(x) Determining whether the Site or other real property is being used in a
manner that is prohibited or restricted, or that may need to be prohibited or restricted under
the Consent Decree; and
(xi) Implernenting, monitoring, maintaining, reporting on, and enforcing
any Institutional Corttrols and the requirements of the ICIAP.
(b} commencing on the date of lodging of the Consent Decree, such Settling
Defendants shall not use the Site, or such other real property, in any manner that EPA determines
will pose an unacceptable risk to human health ar to the enviranment due to exposure to Waste
Materials, or interfere with or adversely affect the implementation, integrity, or protectiveness of
the Remedial Action. The restrictians shall include, but not be limited to: (i) limiting future Site
28
use to commercial, industrial, and/or recreational purposes; and {ii) preventing groundwater use at
the Site; and
(c) such Settling Defendants shall:
(i) Execute and record in the appropriate land records office Proprietary
Controls that: (1) grant a right of access to conduct any activity regarding the Consent
Decree including, but not limited to, those activities listed in Paragraph 25{a), and (2) grant
the right to enforce the land/water use restrictions set forth in Paragraph 25{b), including,
but not limited to, the specific restrictions listed therein and any land/water use restrictions
listed in the ICIAP, as further specified in Paragraph 25(c)(ii)-(iv).
(ii) The Proprietary Controls shall be granted to one or rnore of the
following persons, as determined by EPA: (1) the United States, on behalf of EPA, and its
representatives, (2) the State and its representatives, {3) the other Settling Defendants and
their representatives, andJor (4) other appropriate gantees. The Proprietary Controls, other
than those granted to the United States, shall include a designation that EPA {and/or the
State as appropriate) is a"third-party beneficiary," allawing EPA to maintain the right to
enforce the Proprietary Controls without acquiring an interest in real property. If any
Proprietary Controls are granted to any Settling Defendants pursuant to this
Paragraph 25{c)(ii)(3), then such Settling Defendants shall monitar, maintain, report on,
and enforce such Proprietary Controls,
(iii) In accordance with the schedule set forth in the ICIAP, submit to
EPA for review and approval regarding such real property: (1) a draft Proprietary Cantrol,
in substantiaily the form attached hereto as Appendix J, that is enforceable under state law;
and (2) except with respect to Settling De Minimis State Agencies, a current title insurance
29
cornmitment or other evidence of title acceptable to EPA, which shows tit]e to the land
affected by the Proprietaty Controi to be free and clear of all prior liens and encumbrances
(except when EPA waives the release or subordination of such prior liens or encumbrances
or when, despite best efforts, Settling Performing Defendants are unable to obtain release or
subordination of such prior liens or encumbrances).
(iv) within 15 days of EPA's approval and acceptance of the Proprietary
Control and the title evidence, update the title search and, if it is determined that nothing
has occurred since the effective date of the commihnent, or other title evidence, to affect
the title adversely, record the Proprietary Control with the appropriate land records office.
Within 30 days of recording the Proprietary Control, such Settling Defendants shall provide
� EPA with a final title insurance policy, or ather final evidence of title acceptable to EPA,
and a certified copy of the original recorded Proprietary Control showing the clerk's
recording starnps. If the Proprietary Control is to be conveyed to the United States, the
Proprietary Control and title evidence (including final title evidence) shall be prepared in
accflrdance with the U.S. Department of Justice Title Standards 2001, and approval of the
sufficiency of title shall be obtained as required by �0 U.S.C. § 31 l 1.
26. If the Site, or any other real property where access andlor land/water use restrictions
are needed, is owned or controlled by persons other than any Settling Defendant, Settling
Performing Defendants shall use best efforts to secure from such persons:
(a) an agreement to provide access thereto for the United States, the State and
Settling Performing Defendants, and their representatives, contractors and subconiractors, to
conduct any activity regarding the Consent Decree including, but nat limited to, the activities listed
in Paragraph 25(a);
30
(b) an agreement, enforceable by Settling Performing Defendants and the
United States; to refrain from using the Site, or such other real property, in any manner that EPA
determines will pose an unacceptable risk to human health or to the environment due to exposure
to Waste Materials or interfere with or adversely affect the irnplementation, integrity, or
protectiveness of the Remedial Action. The ageement sha�l include, but not be limited to, the
land/water use restrictions listed in Paragraph 25(b); and
{c) {i) The execution and recordation in the appropriate land records office
of Proprietary Controls, that (1) grant a right of access to conduct any activity regarding the
Consent Decree including, but not limited to, those activities listed in Paragraph 25(a), and
(2) grant the right to enforce the land/water use restrictions set forth in Paragraph 25(b), including,
but not limited to, the specific restrictions listed therein and any land/water use restrictions listed in
the ICIAP. �
(ii) The Proprietary Controls shall be granted to one or more of the
following persons, as determined by EPA: (1) the United States, on behalf of EPA, and its
representatives, (2) the State and its representatives, (3) Settling Performing Defendants
and their representatives, and/or {4) other appropriate grantees, The Proprietary Controls,
other than those granted to the United States, shall include a designation that EPA {and/or
the State as appropriate) is a"third party beneficiary," allowing EPA to maintain the right
to enforce the Proprietary Control without acquiring an interest in real property. If any
Proprietary Controls are granted to any Settling Performing Defendants pursuant to this
Paragraph 26(c)(ii)(3), then such Settling Performing Defendants shall monitor, maintain,
report on, and enforce such Proprietary Controls.
31
(iii} In accordance with the schedule set forth in the ICIAP, Settling
Performing Defendants shall submit to EPA for review and approval regaxding such
properry: (1) a draf� Praprietary Control, in substantially the form attached hereto as
Appendix J, that is enforceable under state law; and (2) a current title insurance
commitment, or other evidence of title acceptable to EPA, whicY� shows titie to the land
affected by the Proprietary Cantrol to be free and clear of all prior liens and encumbrances
{except when EPA waives the release or subordination of such prior liens or encumbrances
or. when, despite best efforts, Settling Performing Defendants are unable to obtain release or
subordination of such prior liens or encumbrances).
(iv) Within 15 days of EPA's approval and acceptance of the Proprietary
Control and the title evidence, Settling Performing Defendants sha11 update the title search
and, if it is determined that nothing has occurred since the effective date of the
commitment, or other title evidence, to affect the title adversely, the Proprietary Control
shall be recorded with the appropriate land records office. Within 30 days of the recording
of the Proprietary Control, Settling Performing Defendants shall provide EPA with a final
title insurance policy, or other final evidence of title acceptable to EPA, a.nd a certified copy
of the original recorded Proprietary Control showing the clerk's recording stamps. I# the
Pmprietary Control is to be conveyed to the United States, the Proprietary Conirol and title
evidence {including final title evidence) shall be prepared in accordance with the U.S.
Department of Justice Title Standards 2001, and approval of the sufficiency of title must be
obtained as required by 40 U.S.C. § 3111.
27. For purposes of Paragraphs 25 and 2b, "best efforts" includes the payment of
reasonable sums of money to obtain access, an ageement to restrict land/water use, a Proprietary
32
Control, and/or an agreement to release or subordinate a prior lien or encumbrance. If, within 30
days of the Effective Date, Settling Performing Defendants have not obtained agreements to
provide access as required by Paragraph 26{a}, Settling Performing Defendants shall promptly
notify the United States in writing, and shall include in that notification a summary of the steps that
Settling Performing Defendants have taken to attempt to comply with Paragraph 26. If, in
accordance with the schedule set forth in or established by the SOW, Settling Performing
Defendants have not: a) obtained agreements to restrict land/water use or record Proprietary
Controls, as required by Paragraph 26(b) or 26(c); or b) obtained, pursuant to Paragraph 25{c)(i) ar
26(c)(i), agreement from the holders of prior liens or encumbrances to release or subordinate such
liens or encumbrances to the Proprietary Controls, Settling Performing Defendants shall promptly
notify the United States in writing, and shall include in that notification a summary of the steps that
Settling Performing Defendants have taken to attempt to cornply with Paragraph 25 or 26. The
United States may, as it deems appropriate, assist 5ettling Performing Defendan#s in obtaining
access, agreernents to restrict land/water use, Proprietary Controls, or the release or subordination
of a prior lien or encumbrance. Settling Performing Defendants shall reimburse the United States
under Section XVI (Payments for Response Costs), for all costs incurred, direct or indirect, by the
United States in obtaining such access, agreements to restrict land/water use, Proprietary Controls,
and/or the releaselsubordination of prior liens ar encumbrances including, but nat limited to, the
cost of attorney time and the amount of monetary consideration paid or just compensation.
28. If EPA determines that Institutional Controls in the form of state or lacal laws,
regulatians, ordinances, zoning restrictions, or other governrnental controls are needed, Settling
Performing Defendants shall cooperate with EPA's and the State's efforts to secure and ensure
compliance with such governmental controls.
33
29. Notwithstanding any provision of the Consent Decree, the United States and the
State retain all of their access authorities and rights, as well as all of their rights to require
Institutianal Controls, including enforcement authorities related thereto, under CERCLA, RCRA,
and any other applicable statute or regulations.
X. REPORTiNG REQUIREMENTS
30. In addition to any other requirement of this Consent Decree, Settling Performing
Defendants shall submit to EPA and the Sta#e, by electronic mail, monthiy progress reports that:
(a) describe the actions which have been taken toward achieving compliance with this Cansent
Decree during the previous month; (b) include a summary of all results of sarnpling and tests and
a11 other data received or generated by Settling Performing Defendants or their contractors or
agents in the previous month; (c) identify a11 plans, reports, and other deliverables required by this
Consent Decree completed and submitted during the previous month; (d) describe all actions,
including, but not limited to, data collec#ion and implementation of work plans, which are
scheduled for the next six weeks and provide other information relating #o the progress af
construction, including, but not limited to, critical path diagrams, Gantt charts or Pert charts;
{e} include information regarding percentage of completion, unresolved delays encountered or
anticipated that may affect the future schedule for implementation of the Work, and a description
of efforts made to mitigate those delays or anticipated delays; (�} include any modifications to the
work plans or other schedules that Settling Performing Defendants have proposed to EPA or that
have been approved by EPA; and (g) describe all activities undertaken in support of the
Community Relations Plan during the previous month and those to be undertaken in the next six
weeks, Settling Performing Defendants shall subrnit these progress reports to EPA and the State
by the tenth day of every month following the Effective Date of this Consent Decree until EPA
34
notifies Settling Perf'orming Defendants pursuant to Paragraph 50(b) of Section XIV {Certificatian
of Completion). If requested by EPA or the State, Settling Performing Defendants shall also
provide briefings for EPA and the State to discuss the pragress of the Work.
31. Settling Performing Defendants shall notify EPA of any change in the schedule
described in the monthly progress report for the performance of any activity, including, but not
limited to, data collection and implementation of work plans, no later than seven days prior to the
perforrnance of #he activity.
32. Upon the occurrence of any event during performance of the Work that Settling
Performing Defendants are required to report pursuant to Section 103 af 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, Settling Performing Defendants shall, within 24 hours of the knowledge of
such event, orally notify the EPA Project Coordinator or the Alternate EPA Project Coordinator (in
the event of the unavailability of the EPA Project Coordinator), or, in the event that neither the
EPA Project Coordinator nor Alternate EPA Project Coordinator is available, the Emergency
Response and Removal Branch, Region 4, United States Environmental Pro#ection Agency.
These reporting requirernents are in addition to the reporting required by CERCLA Section 103 or
EPCRA Section 304.
33. Wi#hin 20 days of the knowledge af such an event, Settling Perforining Defendants
shall furnish #o EPA and the State a written report, signed by Settling Performing Defendants'
Project Coordinator, setting forth the events that occurred and the measures taken, and to be taken,
in response thereto. Within 30 days of the conclusion of such an event, Settling Performing
Defendants shall submit a report setting forth all actions taken in response thereto.
35
34. Settling Performing Defendants shall submit five (5) written copies of all plans,
reports, data, and other deliverables required by the SOW, the Remedial Design Work Plans, the
Remedial Action Work Plans, or any other approved plans to EPA in accordance with the
schedules set forth in such plans. Settling Performing Defendants shall simultaneously submit two
(2) written copies of all such plans, reports, data, and other deliverables to the State. Upon request
by EPA or the State, Settling Perforrning Defendants shall submit in electronic form all or any
portion of any deliverables Settling Perfarming Defendants are required to submit pursuant to the
pravisions of this Consent Decree.
35. All deliverables submitted by Settling Performing Defendants to EPA which
purport to document Settling Performing Defendants' compliance with the terms of this Consent �
Decree shall be signed by an authorized representative of Settling Performing Defendants.
XI. EPA APPROVAL OF PLANS, REPORTS, AND OTHER DELIVERABLES
36. Initial Submissions
(a) After review of any plan, report, or other deliverable that is required ta be
submitted for approval pursuant to this Consent Decree, EPA, after reasonable opportunity for
review and comment by the State, shall: (i) approve, in whole or in part, the submission;
(ii) approve the submission upon specified conditions; (iii) disapprove, in whole or in part, the
submission; or (iv) any combination of the foregoing.
(b) EPA also may modify the initial submission ta cure deficiencies in the
submission if: (i) EPA determines that disapproving the submission and awaiting a resubmission
would cause substantial disruption to the Work; or (ii) previous submission(s) have been
disapproved due to material defects and the deficiencies in the initial submission under
consideration indicate a bad faith lack of effort to submit an acceptable plan, report, or deliverable.
36
37. Resubmissions. Upon receipt of a notice of disapproval under Paragraph 3b{a)(iii}
or (iv), or if required by a notice of approval upon specified conditions under Paragraph 36(a)(ii),
Settling Performing Defendants shall, within 30 days or such longer time as specified by EPA in
such notice, correct the deficiencies and resubmit the plan, report, or other deliverable for appraval.
After review af the resubmitted plan, report, or other deliverable, EPA may: (a) approve, in whole
or in part, the resubmission; {b) approve the resubmission upon specified conditions; (c) modify
the resubmission; (d) disapprove, in whole or in part, the resubmission, requiring Settling
Performing Defendants to correct the deficiencies; or (e) any combination of the foregoing.
38. Material Defects. If an initially submitted or resubmitted plan, report, or other
deliverable contains a material defect, and the plan, report, or other deliverable is disapproved or
modified by EPA under Paragraph 36(b){ii) or 37 due to such material defect, then the material
defect shall constitute a lack of compliance for purposes of Paragraph 82. The pravisions of
Section �X (Dispute Resolution) and Section XXI (Stipulated Penalties) shall govern the accrual
and payment of any stipulated penalties regarding Settling PerForming Defendants' submissions
under this Section.
39. Implementation. Upon approval, approval upon conditions, or modification by EPA
under Paragraph 36 or 37, of any plan, report, nr other deliverable, or any portian thereaf (a) such
plan, report, or other deliverable, or portian thereof, shail be incorporated into and enforceable
under this Consent Decree; and (b) Settling Performing Defendants shall take any action required
by such plan, report, or other deliverable, or portion thereof, subject only to their right to invoke
the Dispute Resolution procedures set forth in Section XX (Dispute Resolution) with respect to the
modificatians or conditions made by EPA. The implernentation of any non-deficient portion of a
plan, report, or other deliverable submitted or resubmitted under Paragraph 3b or 37 shall not
37
relieve Settling Performing Defendants of any liability for stipulated penalties under Section XXI
� (Stipulated Penalties).
:YII. PROJECT COORDINATORS
40. Within 20 days of lodging this Consent Decree, Settling Performing Defendants, the
State and EPA will 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 Aiternate Project Coordinator initially designated is changed, the identity of the
successor will be given to the other parties at least five working days before the change occurs,
unless impracticable, but in no event later than the actual day the change is made. Settling
Perfarrning Defendants' Project Coordinatar shall be subject to disapproval by EPA and shall have
the technical expertise sufficient to adequately oversee all aspects of the Work. Settling
Perfonning Defendants' Project Coordinator shall not be an attorney for any Settling Performing
Defendant in this matter. He or she may assign other representatives, including other contractors,
to serve as a Site representative for oversight of performance of daily operations during remedial
activities.
41. Plaintiffs may designate other representatives, including, but not limited to, EPA
and State employees, and federal and State contractors and consultants, to observe and monitor the
progess of any activity undertaken pursuant to this Consent Decree. EPA's Project Coordinator
and Alternate Project Coordinator shall have the authority lawfi�ily vested in a Remedial Project
. Manager (RPM) and an On-Scene Coordinator (OSC) by the NCP, 40 C.F.R, Part 300. EPA's
Project Coordinator or Alternate Project Coordinator shall have authority, consistent with the NCP,
to halt any Work required by this Consent Decree and to take any necessary response action when
he or she determines that conditions at the Site constitute an emergency situation or may present an
38
immediate threat to public health or welfare or the environment due to release or threatened release
of Waste MateriaL
42. EPA's Project Coordinator and Settling Performing Defendants' Project
Coordinator will meet periodically, as de#ermined by EPA, and these meetings, at the approval of
EPA, may be held by telephone.
XIIL PERFORMANCE GUARANTEE
43. In order to ensure the full and final completion of the Work, Settling Performing
Defendants shall establish and maintain a performance guarantee, initially in the amount of
$7,300,000.00, for the benefit of EPA (hereinafter "Estima#ed Cost of the Work"). The
performance guarantee, which must be satisfactory in form and substance to EPA, shall be in the
form of one or more of the following mechanisms (provided that, if Settling Performing
Defendants intend to use multiple mechanisms, such multiple mechanisms shall be limited to
surety bonds guaranteeing payment,letters of credit, trust funds, escrow accounts, and insurance
policies):
(a) A surety bond unconditionally guaranteeing payment and/or performance of
the Work tha# 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) One or more irrevocable letters of credit, payable to or at the direction of
EPA, that is issued by one or rnore financial institution(s) (i} that has the authority to issue letters
of credit and (ii) whose letter-of-credit operations are regulated and examined by a federal or state
agency;
39
(c) A tru�t fund established for the benefit of EPA that is administered by a
trustee (i) that has the authority to act as a trustee and (ii) whose trust operations are regulated and �
examined by a federal or state agency;
(d) A policy of insurance that (i) provides EPA with acceptable righ#s as a
beneficiary thereof; and (ii) is issued by an insurance camer (a) that has the authority to issue
insurance polieies in the applicabie jurisdictions and (b} whose insurance operations are regulated
and examined by a federal or state agency;
(e) A demonstration by one or more Settling Performing Defendants that each
such Settling Performing Defendant meets the financial test criteria of 40 C.F.R. � 264.143{ fl with
respect to the Estirnated Cost of the Work (plus the amount(s) of any other federal or any state
environmental obligations financially assured through the use of a financiai test or guarantee),
pravided that all other requirements of 40 C.F.R. § 264.143(� are met to EPA's satisfaction;
(t) A written guarantee to fund or perform the Work executed in favor of EPA
by one or more of the following: (i) a direct ar indirect parent compariy of a Settling Performing
Defendant, or (ii) a company that has a"substantial business relationship" (as defined in 40 C.F.R.
.� 264.141(h)) with at least one Settling Performing Defendant; providecl, however, that any
company providing such a guarantee must demonstrate to the satisfaction of EPA that it satisfies
the financial test and reporting requirements for owners and operators set forth in subparagraphs
(1) through (8) of 40 C.F.R. § 2b4.143( fl with respect tfl the Estimated Cost of the Work (plus the
amount(s) of any other federal or any state environrnental obligations financially assured through
the use of a financial test or guarantee) that it proposes to guarantee hereunder; or
(g) An escrow account that provides EPA securi#y and rights equivalent to
those provided by a trust fund that meets the requirements of 40 C.F.R. § 2b4.151(a)(1) to finance
the Work in accordance with this Consent Decree, the ROD, and the SOW. The escrow accaunt
40
shall provide that the funds placed therein are specifically and inevocably reserved for the Work.
Settling Performing Defendants shall include in each written monthly progress report submitted
pursuant to Section X of this Consent Decree (Reporting Requirements} a report on the status of
payments out of the escrow account. At EPA's request, Settling Performing Defendants shall
make available to EPA and the State any financial reports or other similar documents prepared by
the escrow agent or other person responsible for approving payments out of the escrow account.
Upon the issuance of the Certification of Completion of Work, pursuant to Paragraph 50, any funds
remaining in the escrow account may be disbursed to Settling Performing Defendants.
44. Settling Performing Defendants have selected, and EPA has found satisfactory, as
an initial performance ,guarantee, the combination of an escrow account funded by multiple
Settiing Perforrning Defendants pursuant to Paragraph 43(g), and individual Settling Performing
Defendants' surety bonds, irrevocable letters of credit, and insurance policies pursuant to
Paragraphs 43(a), (b), and (d), all in the forrns attached hereta as Appendix i, The escrow account
portion of this initial performance guarantee provided by Settling Performing Defendants pursuant
to this Section may be disbursed to pay for the Work, while the surety bonds, irrevocable letters of
credit, and insurance policies may be reduced in accordance with Paragraph 48 as the work is
performed. Within 10 days after the Effective Date, Settling Performing Defendants sha11 execute
or otherwise finalize all instruments c�r other documents required in order to make the selected
performance guarantees legally binding in a form substantially identical to the documents attached
as Appendix I, and such performance guarantees shall thereupon be fully effective. Within 30 days
of the Effective Date, Settling Performing Defendants shall submit copies of all executed and/or
otherwise finalized instruments or other documents required in order to make the selected
performance guarantee{s) legally binding to the EPA Regional Financial Managernent Officer in �
41
accordance with Section XXVIII {Notices and Submissions), with a copy to the United States and
EPA, and the State as specified in Section XXVIII (Notices and Submissions}.
45. If, at any time a�er the Effective Da#e and before issuance of the Certification of
Completion of the Work pursuant to Paragraph 50, Settling Perforrning Defendants provide a
performance guarantee for completion of the Work by means of a dernonstration or guarantee
pursuant to Paragraph 43(e) or 43( fl, the relevant Settling Perforrning Defendants shall also
comply with the other relevant requirements of 40 C.F.R. § 264.143(� relating to these
mechanisms unless otherwise provided in this Consent Decree, including but not limited to: (a) the
initial submission of required financial reports and statements from the relevant entity's chief
financial officer ("CFO") and independent certified public accountant ("CPA"), in the form
prescribed by EPA in its financial test sample CFO letters and CPA reports available at:
http://www.epa.gov/compliance/resources/policies/cleanuplsuperfund/fa-test-samples.pdf; (b) the
annual re-submission of such reports and statements within 90 days after the close of each such
entity's fiscal year; and (c) the prompt notification of EPA after each such entity determines that it
no longer satisfies the financial test requirements set forth at 40 C.F.R. § 264.143( fl(1) and in any
event within 90 days after the close of any fiscal year in which such entity no longer satisfies such
financial test requirements. For purposes of the performance guarantee mechanisms specified in
this Section XIII, references in 40 C.F.R. Part 264, Subpart H, to "closure," "post-closure," and
"plugging and abandonment" shall be deemed to include the Work; the tenns "current closure cost
estimate," "current post-closure cost estimate," �riC� "current plugging and abandonment cost
estimate" shall be deemed to include the Estimated Cost of the Work; the terms "awner" and
"operator" shall be deemed to refer to each Settling Perfarming Defendant making a demonstration
under Paragraph 43{e); and the terms "facility" and "hazardous waste facility" shall be deemed to
include the Site.
42
46. In the event that EPA determines at any time that a pertormance guarantee provided
by any Settling Performing Defendant pursuant to this Section is inadequate or otherwise no longer
satisfies the requirements set forth in this Section, whether due to an increase in the estimated cost
of completing the Work or for any other reason, or in the event that any Settling Performing
Defendant becomes aware of information indicating that a performance guarantee provided
pursuant to this �ection is inadequate or otherwise no longer satisfies the requirements set forth in
this Section, whether due to an increase in the estimated cost of completing the Work or for any
other reason, Settling Performing Defendants, within 30 days of receipt of notice of EPA's
determination or, as the case may be, within 30 days of any Settling Performing Defendant
becoming aware of such information, shall obtain and present to EPA for approval a proposal for a
revised or alternative forrn of performance guarantee listed in Paragraph 43 that satisfies all
requirements set forth in this Section XIII; provided, however, that if any Settling Performing
Defendant cannot obtain such revised or alternative form of performance guarantee within such 30-
day period, and provided fizrther that the Settling Perf'orming Defendant shall have commenced to
obtain such revised or alternative form of performance guarantee within such 30-day periad, and
thereafter diligently proceeds to obtain the same, EPA sha11 extend such period for such time as is
reasonably necessary for the Settling Performing Defendant in the exercise of due diligence to
obtain such revised or alternative form of performance guarantee, such additional period not to
exceed 30 days. In seeking appraval for a revised or alternative form of performance guarantee,
Settling Performing Defendants shall follow the procedures set forth in Paragraph 48(b)(i).
Settling Performing Defendants' inability to post a performance guarantee for completion of the
Work shall in no way excuse performance of any other requirements of this Consent Decree,
including, without limitation, the obligation of Settling Performing Defendants to complete the
Work in strict accordance with the terms o� this Consent Decree.
43
47. Funding for Work Takeover. The commencement of any Work Takeover pursuant
to Paragraph 99 shall trigger EPA's right to receive the benefit of any performance guarantee(s)
� provided pursuant to Paragraphs 43(a), 43(b), 43(c), 43(d), 43(fj, or 43(g), and at such time EPA
shall have immediate access to resources ,guaranteed under any such perforrnance guarantee(s),
whether in cash or in kind, as needed to continue and complete the Work assumed by EPA under
the Work Takeover. Upon the commencement of any Work Takeover, if (a) for any reason EPA is
unable to promptly secure the resources guaranteed under any such performance guarantee(s),
whether in cash or in kind, necessary to continue and complete the Work assumed by EPA under
the Work Takeover, or (b) in the event that the performance guarantee involves a demonstration of
satisfaction of the financial test criteria pursuant to Paragraph 43{e} or Paragraph 43(f}{ii}, Settling
Performing Defendants (or in the case of Paragraph 43( fl(ii), the guarantor) shall immediately upon
written demand from EPA deposit into a special account within the EPA Hazardous Substance
Superfund or such other account as EPA may specify, in immediately available funds and without
seto#�, counterclaim, or condition of any kind, a cash amount up to but not exceeding the estimated
cost of completing the Work as of such date, as determined by EPA. In addition, if at any time
EPA is notified by the issuer of a performance guarantee that sucli issuer intends to cancel the
performance guarantee mechanism it has issued, then, unless Settling Perforrning Defendants
provide a substitute performance guarantee rnechanism in accordance with this Section XIII no
later than 30 days priar to the impending cancellation date, EPA shall be entitled (as of and after
the date that is 30 days prior to the impending cancellation) to draw fully on the funds guaranteed
under the then-existing performance guarantee. All EPA Work Takeover costs not reimbursed
under this Paragraph shall be reimbursed under Section XVI (Payments for Response Costs).
44
48. Modification of Arnaunt andlar Form of Performance Guarantee.
{a) Reduction of Amount of Performance Guarantee. If Settling Perforrning
Defendants believe that the estimated cost of completing the Work has diminished below the
amount set forth in Paragraph 43, Settling Performing Defendants may, on any anniversary of the
Effective Date, or at any other time agreed to by the Parties, petition EPA in writing to request a
reduction in the arnount of the perforrnance guarantee provided pursuant to this Section so that the
amount of the performance guarantee is equal to the estimated cost of completing the Work.
Settling Performing Defendants shall submit a written proposal for such reduction to EPA that
shal] specify, at a rninimum, the estimated cost of completing the Work and the basis upon which
such cost was calculated. In seeking approval for a reduction in the amount of the performance
guarantee, Settling Performing Defendants shall fallow the procedures set forth in
Paragraph 48(b)(ii) for requesting a revised or alternative form of performance guarantee, except as
specifically provided in this Paragraph 48(a}. If EPA decides to accept Settling Performing
Defendan#s' proposal for a reduction in the amount of the performance guarantee, either to the •
amount set forth in Settling Performing Defendants' written proposal or to some other amount as
selected by EPA, EPA will notify the petitioning Settling Performing Defendants of such decision
in writing. Upon EPA's acceptance of a reduction in the amount af the performance guarantee, the
Estimated Cost of the Work shall be deemed to be the estimated cost of completing the Work set
forth in EPA's written decision. After receiving EPA's written decision, Settling Performing
Defendants may reduce the amount of the performance guarantee in accordance with and to the
extent pennitted by such written acceptance and shall submi# copies of all executed and/or
otherwise finaiized instruments or other documents required in order to make the selected
perfarmance guarantee{s) legally binding in accordance with Paragraph 48(b)(ii). In the event of a
dispute, Settling Performing Defendants may reduce the amount of the performance guarantee
45
required hereunder only in accordance with a final administrative or judicial decision resolving
such dispute pursuant to Section X� {Dispute Resolution). No change to the form or terms of any
performance guarantee provided under this Section, other than a reduction in amount, �is authorized
except as provided in Paragaphs 46 or 48{b).
(b} Chan�e of Form of Performance Guarantee.
(i) If, after the Effective Date, Settling Performing Defendants desire to
change the form or tenns of any performance guarantee(s) provided pursuant to this
Section, Settling Performing Defend�nts may, on any anniversary of the Effective Date, or
at any other time agreed to by the Parties, petition EPA in writing to request a change in the
form or terms of the performance guarantee provided hereunder. The submission of such
proposed revised or alternative performance guarantee shall be as provided in Paragraph
�8(b)(ii). Any decision made by EPA on a petition submitted under this Paragaph shall be
made in EPA's sole and unreviewable discretion, and such decision shall not be subject to
challenge by Settling Performing Defendants pursuant to the dispute resolution provisions
of this Consent Decree or in any other forum.
(ii) Settling Performing Defendants shall submit a written proposal for a
revised or alternative performance guarantee to EPA which�shall specify, at a minimum, the
estimated cost of completing the Work, the basis upon which such cost was calculated, and
the proposed revised performance guarantee, including all proposed instruments or other
documents required in order to make the proposed perforrnance guarantee legally binding.
The proposed revised or alternative performance guarantee must satisfy all requirements set
forth or incorporated by reference in this Section. Settling Performing Defendants shall
submit such proposed revised or alternative performance guarantee to the EPA Regional
Financial Management Officer in accordance with Section XXVIII (Notices and
46
Submissions). EPA will notify Settling Performing Defendants in writing of its decision to
accept or reject a revised or alternative performance guaran#ee submitted pursuant to this
Paragraph. Within 10 days after receiving a written decision approving the proposed
revised or alternative performance guarantee, Settling Performing Defendants shall execute
and/ar otherwise finalize all instruments or other documents required in order to rnake the
selected performance guarantee(s) legally binding in a form substantially identical to the
documents submitted to EPA as part of the proposal, and such performance guarantee(s)
shall thereupon be fully effective. Settling Performing Defendants shall submit copies of
all executed and/or otherwise finalized instruments or other documents required in order to
make the selected performance guarantee{s) legally binding to the EPA Regional Financial
Management Officer within 30 days of receiving a written decision approving the proposed
revised or alternative pertormance guarantee in accordance with Section XXVIII (Notices
and Submissions), with a copy ta the United States and EPA and the State as specified in
Secfiion XXVIII.
(c) Release of Performance Guarantee. Settling Performing Defendants shall not
release, cancel, or discontinue any performance guarantee provided pursuant to this Section except
as provided in this Paragraph. If Settling Performing Defendants receive written notice from EPA
in accordance with Paragraph 50 that the Work has been fully and finally completed in accordance
with the terms of this Consent Decree, or if EPA otherwise so notifies Settling Performing
Defendants in writing, Settling Performing Defendants may thereafter release, cancel, or
discontinue the performance guarantee(s) provided pursuant to this Section. In the event of a
dispute, Settling Performing Defendants may release, cancel, or discontinue the performance
4'7
guarantee(s) required hereunder only in accardance with a final administrative or judicial decision
resolving such dispute pursuant to Section XX (Dispute Resolu#ion).
XIV. CERTIFICATION OF COMPLETION
�9. Completion of the Remedial Action.
(a) Within 90 days after Settling Performing Defendants conclude #hat both
the soil and groundwater components of the Rernedial Ac#ion has been fully performed and the
Perfortnance Standards have been achieved, Settling Performing Defendants shall schedule and
conduct a pre-certification inspection to be attended by Settling Performing Defendants, EPA, and
the State. If, after the pre-certification inspection, Settling Performing Defendants still believe that
the Rernedial Action has been fully pertormed and the Performance Standards have been achieved,
. they shall submit a written report requesting certification to EPA for approval, with a copy to the
State, pursuant to Section XI (EPA Approval of Plans and Other Submissions) within 30 days of
the inspection. In the report, a registered professional engineer and Settling Performing
Defendants' Project Coordinator shall state that the Remedial Action has been completed in full
satisfaction of the requirernents of this Consent Decree. The written report shall include as-built
drawings signed and stamped by a professional engineer. The repart shall contain the following
statement, signed'by a responsible corporate official of a Settling Performing Defendant or Settling
Perfornling Defendants' Project Coordinator:
I certify under penalty of law that this document and all attachments were prepared under
rny 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
48
belief, true, accurate, and camplete. I am aware that there are significant penalties for
submitting false information, including the possibiii#y of fine and imprisonment for
knowing violations.
If, after completian of the pre-certification inspection and receipt and review of the written report,
EPA, after reasonable opportunity for review and comment by the State, determines that the
Remedial Action or any portion thereof has not been completed in accordance with this Consent
Decree or that the Performance Standards have. not been achieved, EPA will notify Settling
Performing Defendants in writing of the activities that must be undertaken by Settling Performing
Defendants pursuant to this Consent Decree ta complete the Remedial Action and achieve the
Performance Standards, provided, however, that EPA may only require Settling Performing
Defendants to perform such activities pursuant to this Paragaph to the extent that such activities
are consistent with the "scope of the remedy set forth in the ROD," as that tenn is defined in
Paragraph l 3(a). EPA will set forth in the notice a schedule for performance of such activities
consistent with the Consent Decree and the SOW or require Settling Performing Defendants to
submit a schedule to EPA for approval pursuant to Section XI {EPA Approval of Plans and Other
Submissions). Settling Performing Defendants shall perform all activities described in the notice
in accordance with the specifications and schedules established pursuant to this Paragraph, subject
to their right to invake the dispute resolution procedures se# forth in 5ection XX (Dispute
Resolution).
(b) If EPA concludes, based on the initial or any subsequent report requesting
Certification of Completion of the Remedial Action and af�er a reasonable opportunity for review
and comment by the State, that the Remedial Action has been performed in accordance with this
Consent Decree and that the Performance Standards have been achieved, EPA will so certify in
49
writing to Settling Performing Defendants. This certification shall constitute the Certification of
Completion of the Remedial Acrion for purposes of this Consent Decree, including, but not limited
to, Section XXII (Covenants by Plaintiffs). Certification of Completion of the Remedial Action
shall not affect Settling Performing Defendants' remaining obligatians under this Consent Decree.
50. Completion of the Work.
(a) Within 90 days after Settling Performing Defendants conclude that all
phases of the Work, other than any remaining activities required under Section VII (R+emedy
Review), have been fully performed, Settling Performing Defendants shall schedule and conduct a
pre-certification inspection to be attended by Settling Perfortning Defendants, EPA, and the State.
If, after the pre-certification inspection, Settling Perforrning Defendants sti11 believe that the Work
has been fully performed, Settling Performing Defendants shall submit a written report by a
registered professional engineer sta#ing that the Work has been completed in full satisfaction of the
requirements of this Consent Decree. The report shall contain the statement set forth in Paragraph
49(a), signed by a responsible corporate official of a Settling PerForming Defendant ar Settling
Performing Defendants' Project Coordinator. If, after review of the written report, EPA, after
reasonable opportunity for review and comment by the State, determines that any portion of the
Work has not been completed in accordance with this Cansent Decree, EPA will notify Settling
Performing Defendants in writing of the activities that must be undertaken by Settling Perforining
Defendants pursuant to this Consent Decree to complete the Work, provided, however, that EPA
may only require Settling Performing Defendants to perform such activities pursuant to this
Paragraph to the extent that such activities are consistent with the "scope of the remedy set forth in
the ROD," as that term is defined in Paragaph 13(a). EPA will set forth in the notice a schedule
for performance of such activities consistent with the Consent Decree and the SOW or require
50
Settling Performing Defendants to submit a schedule to EPA for approval pursuant to Section XI
(EPA Approval of Plans and Other Submissions). Set#iing Performing Defendants shall perform
all activities described in the notice in accordance with the specifications and schedules established
therein, subject to their right to invoke the dispute resolution procedures set forth in Section XX
(Dispute Resolution).
(b) If EPA concludes, based on the initial or any subsequent request for
Certification of Completion of the Work by Settling Performing Defendants and after a reasonable
. opportunity for review and comment by the State, that the Work has been performed in accordance
with this Consent Decree, EPA will so notify Settling Performing Defendants im writing.
XV. EMERGENCY RESPONSE
51. If any action or occurrence during the performance af the Work which causes or
threa#ens a release of Waste Material from the Site that constitutes an ernergency situation or may ,
present an immediate threat to public health or welfare or the environment, Settling Performing
Defendants shall, subject to Paragraph 52, immediately take all appropriate action to prevent,
abate, or minimize such release or threat of release, and shall irnmediately notify EPA's Project
Coordinator, or, if the Project Coordinator is unavailable, EPA's Alternate Praject Coordinator. If
neither of these persons is available, Settling Performing Defendants shall notify the EPA
Emergency Response Unit, Region 4. Settling Performing Defendants shall take such actions in
consuitation with EPA's Project Coordinator or other available authorized EPA officer and in
accordance with all applicable provisions of the Health and Safety Plans, the Contingency Plans,
and any other applicable plans or documents developed pursuant to the SOW. In the event that
Settling Performing Defendants fail to take appropriate response action as required by this Section,
and EPA, or, as appropriate, the State, takes such action instead, Settling Performing Defendants
51
shall reimburse EPA and the State for all costs of the response action under Section XVI
(Payments for Response Costs).
52. Subject to Section XXII (Covenants by Plaintiffs), nothing in the preceding
Paragraph or in this Consent Decree shall be deemed to limit any authority of the United States, or
the State, (a) to take all appropriate action to protect human health and the environment or to
prevent, abate, respond to, or minimize an actual or threatened release of Waste Material on, at, or
from the Site, or (b) to direct or order such action, or seek an order from the Court, to protect
hurnan health and the environment or to prevent, abate, respond to, or minirnize an actual or
threatened release of Waste Material on, at, or from the Site.
XVI. PAYMENTS FOR RESPONSE COSTS
53. Pavment of Past Response Costs and State Past Response Costs bv Settling
Performing Defendants.
(a) Pavment to EPA for Past Response Costs, Settling Perfarming Defendants
shall have no abligation to pay to the United States any additional Past Respanse Costs.
(b) Pavment to the State for State Past Response Costs. Within 30 days of the
Effective Date, Settling Performing Defendants shall pay to the State $576,011.71, in accordance
with instructions provided by the State.
54. , Pavment of Future Response Costs and State Future Response Costs bv Settling
Perfarrning Defendants.
(a) Pa�nent to EPA. Settling Performing Defendants shall pay to EPA all
Future Response Costs not inconsistent with the NCP. Settiing Performing Defendants shall have
a credit in the amoun# of $264,436.92 that shall be applied toward payment of Future Oversight
Costs. On a periadic basis, EPA will send Settling Performing Defendants a bill requiring payment
52
that includes a Superfund Cost Recovery Package Imaging and On-Line System ("SCORPIOS")
Report and a U.S. Department of Justice ("DOJ") case cost summary. Settling Performing
Defendants shall make all payments within 30 days of Settling Performing Defendants' receipt of
each bill requiring payment, except as otherwise provided in Paragraph 59, in accordance with
Paragraphs 58(b) and 58(c) (Payment Instructions). The total amount to be paid by Settling
Performing Defendants pursuant to Paragaph S4(a) shall be deposited by EPA in the AER Special
Account.
(b} Pavment ta the State. Settling Performing Defendants shall pay to the State
all State Future Response Costs not inconsistent with the NCP in accordance with instructions .
provided by the State.
55. Pavments bv Settling Federal A eg ncies•
(a) Payment to EPA. As soon as reasonably practicable after the Effective
Date, the United States Postal Service, the Arniy Air Force Exchange Service, and the United
States, on behalf of Settling De Minimis Federal Agencies other than the United States Postal
Service and the Army Air Force Exchange Service, shall pay ta EPA the atnounts specified in
Appendix D-2, and the Army Air Force Exchange Service shall pay to EPA $783.66, $109.14 of
which is attributable to Past Response Costs, and $674.52 of which is attributable to Future
Response Costs. Of the total amount to be paid on behalf of Settling De Minirrcis Federal Agencies
pursuant to this Paragraph, the amounts attributable to Past Response Costs shall be deposited by
EPA in the EPA Hazardous Substance Superfund and the amounts attributable to Future Response
Costs shall be deposited by EPA in the AER Special Account.
(b) Pavment for State Past Resnanse Costs. As soon as reasonably practicable
after the Effective Date, the Uniterl States Postal Service, the Army Air Force Exchange Service,
$3 .
and the United States, on behalf of Settling De Minimis Federal Agencies other than the United
States Pastal Service and the Army Air Force Exchange Service, shall pay to Settling Perforrning
Defendants the amaunts specified in Appendix D-2, and the Army Air Force Exchange Service
shall pay ta Settling Performing Defendants $24.2'7, for State Past Response Co�ts in accordance
with instructions provided by Settling 1'erforming Defendants.
(c) Pa�t bv Settlin� Non-Perfarmin,� Federal A�encies to Settlin�
Perforrnin�; Defendants for Past Costs. The United States, on behalf of the Settli.ng Non-
Performing Federal Agencies, shall pay $52,904.86 to the Settling Performing Defendants as soon
as reasonably practicable as the United States' share of (i) Past Response Costs; and (ii)
recoverable costs under Section 107 of CERCLA, 42 U.S.C. § 9b07, incurred by the Settling
Perfarming Defendants prior to the Effective Date.
(d) Pa m�nt bv Settling Non-Performing, Federal A�e,ncies to Settlin�;
Performing Defendants for Future Costs. Subject to the dispute resolution provisions set forth in
Paragraph 55(e) below, the United States, on behalf of the Settling Non-Performing Federal
Agencies, will pay to the Settling PerFonning Defendants the Settling Non-Performing Federal
Agencies' allocated share, calculated to be 2.5487 °lo, of costs incurred by the Settling Perforrning
Defendants for the Work, Future Response Costs, and State Future Response Costs, as well as
State Past Response Costs at the Site. After the Effective Date, the Se#tling Performing Defendants
may submit clairns for reimbursement ("Invoice") to the Section Chief of the Environmental
Defense Section of the Environment and Natural Resources Division of the United States
Department of Justice no more frequently than every six months. 'The Settling Performing
Defendants will include with each Invoice a statement of Future Costs incurred by Setiling
Performing Defendants during the period covered by the Invoice as well as a staternent of any
54
proceeds received by the Settling Performing Defendants from the AER Disbursement Special
Account, sufficient documentation to allow verification of the accuracy of the costs claimed, proof
of payment of all of the Future Costs included in the Invoice, and a statement that such costs were
properly incurred and consistent with Section 107(a)(4)(B) of CERCLA, 42 U.S.C. �
9607(a)(4){B), the Site Record of Decision, and this Consent Decree. In the event that any Settling
Performing Defendant ceases ta pay its allocated share on the basis of its filing for bankruptcy
protection, the Settling Performing Defendants shall notify the United States and shall, on an
interim basis and without prejudice to any enforcement and/or collection actions, allocate said
bankrupt Settling Performing Defendant's allocated share among all other Settling Perforrning
Defendants and the Settling Non-Performing Federal Agencies in accordance with the weighted
volumetric farmula. The Settling Performing Defendants and the Settling Non-Performing Federal
Agencies agree that any funds recovered from a bankrupt Settling Performing Defendant will be
distributed arnong all other Settling Performing Defendants and the Settling Non-Performing
Federal Agencies in accordance with the weighted volumetric formula.
(e) Resolution of Disputes Between Settiing Non-Performin� Federal Agencies
and Settling Performing Defendants for Future Costs. Upon receipt of any Invoice, the United
States, on behalf of the Settling Non-Perfortning Federal Agencies, shall then have sixty (60) days
to review the Invoice and make payment in whole or in part. Within sixty (60) days of receipt of
the Invoice and accompanying documentation, the United States may in good faith object, in
writing, and said objection shall be sent to the Settling Performing Defendants pursuant to
Paragaph 131. Any such objection shall identify the contested costs and the basis for objection.
In the event of an objection, the United States shall, within sixty (60) days of transmitting the
objection, reimburse the Settling Performing Defendants for the Settling Non-Performing Federal
55
A�encies' share of any uncontested Invoice or uncontested costs that are identified on an Invoice.
In the event the United States objects to any Invoice, Settling Performing Defendan#s and the
United States agree to participate in good faith, inforrnal negotiations to resolve the dispute. The
period for informal negotiations shall last sixty (60) days from the date the United States transmits
its written objection pursuant to Paragraph 131, and may be extended upon the mutual cansent of
Settling Performing Defendants and the United States. If informal negotiations are unsuccessful,
Settling Performing Defendants and the United States reserve their ri,ghts to submit the dispute to
non-binding mediation or to the Court to resolve the matter. The reasonable costs and expenses of
mediation shall be borne equally by the parties involved in the dispute, and each party shall bear its
own attorneys' fees, expert fees, and other costs of its participation in such mediation. Paragraph
59 and Section XX (Dispute Resolution) of this Consent Decree to not apply to disputes raised
pursuant to this Paragraph. Any such dispute shall not excuse performance by the Settling
Performing Defendants and Settling Non-Performing Federal Agencies of their obligations under
this Consent Decree.
(#} Interest. In the event that any payment required by Paragraphs 55(a),
SS(b), or 55(c) is not made within 120 days of the Effective Date, interest on the unpaid balance
shall be paid at the rate established pursuant to Section 107(a) of CERCLA, 42 U.S.C. � 960'7(a),
commencing on the 121 S` day after the Effective Date and accruing through the date of the
payrnent. If the United States does not object to an Invoice or certain costs identified in an Invoice
within sixty (60) days of receipt of said Invoice pursuant to Paragraph 55(e) abave, then payment is
due to Settling Performing Defendants within one hundred twenty (120) days at�er receipt of the
Invoice. If such payment of an uncontested Invoice or uncontested costs is not made in full within
one hundred twenty (120) days after receipt of the Invoice, then interest an the unpaid balance for
56
uncontested costs shall accrue commencing on the 121$' day at the rate established pursuant to
Section 107(a) of CERCLA, 42 U.S.C. � 9607(a). In the event the United States objects to an
Invoice or certain costs identified in an Invoice pursuant to Paragaph 55(e) above, if the dispute is
not resolved such that payment is made in full within one hundred twenty (120) days after receipt
of the Invoice, then interest on the unpaid balance for contes#ed costs shall accrue commencing on
the 121'` day at the rate established pursuant to Section 107(a} of CERCLA, 42 U.S.C. � 9607{a).
If the United States prevails as to any disputed costs, the United States will not pay the contested
costs or any interest accrued thereon.
56. The Parties to this Consent Decree recognize and acknowledge that the payment
obligatians of the Settling Fed�ral Agencies under this Consent Decree can only be paid from
appropriated funds legally available for such purpose. Nothing in this Consent Decree shall be
interpreted or construed as a commitment or requirement that any Settling Fecieral Agency obligate
or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other
applicable provision af law.
57. Pavments b Settling De Minrmis Defendants and Settling De Minimis State
Agencies.
(a) Pavment to EPA. Within 60 days of the Effective Date, (i) Settling De
Minimis Defendants, with the exception of W.R. Grace & Co., shall pay to EPA one combined
payment in the amount equal to the total arnounts due to EPA by each signatory Settling 17e
Minimis Defendant, as specified in Appendix C, and (ii) the State of Georgia, on behalf of Settling
De Minimis State Agencies, shall pay the arnount specified in Appendix E. Payment shall be made
in accordance with Paragraphs 58(a) and 58{c} (Payment Instructions). Of the total amount #o be
paid by Settling De Minimis ��
57
Defendants and Settling De Minimis State Agencies pursuant to this Para�aph, the amounts
attributable to Past Response Costs shall be deposited in the EPA Hazardous Substance Superfund
and the amounts attributable to Future Response Costs shall be deposited by EPA in the AER
Special Account.
(b) Pavment for State Past Response Costs. Within 60 days of the Effective
Date, (i) Settling De Minimis Defendants, with the exception of W.R. Grace 8� Co., shall pay to the
Settling Performing Defendants one combined payment in the amount equal to the total amounts
due to the State by each signatory Settling De Minimis Defendant, as specified in Appendix C, and
(ii) the State of Geargia, on behalf of Settling De Minimis State Agencies, shall pay to the State the
amount specified in Appendix E for State Pas# Response Costs in accordance with instructions
provided by the Settling Performing Defendants.
(c) Pavments b+�W.R. Grace & Co. W.R. Grace & Co. and certain of its
affiliates ("Grace") has filed a petition for reorganization under chapter 11 of the U.S. Bankruptcy
Code. On January 31, 20l 1, the Bankruptcy Court entered an order confirrning Grace's chapter 11
plan of reorganization. The confirmation order is currently befare a U.S. district court for
affirmance. Pursuant to this Paragraph 57, EPA and ihe State shall have an allowed pre-petition
non-priority claim against Grace's chapter I 1 estate in the amount set forth in Appendix C. Within
30 days of the effective date of Grace's chapter 11 plan, Grace shall pay to EPA one payment in the
total arnount due to EPA as specified in Appendix C. Of the total amount to be paid by Grace
pursuant to this Paragraph, the amount attributable to Past Response Costs shall be deposited in the
EPA Hazardous Substance Superfund and the amount attributable to Future Response Costs shall
be deposited by EPA in the AER Special Account. In addition, within 30 days of the effective date
of Grace's chapter 11 plan, Grace shall pay to Settling Performing Defendants one payment in the
5$
total arnount due to the State as specified in Appendix C for State Past Response Costs in
accordance with instructions provided by Settling Performing Defendants.
58. Pavment Instructions for Settling Defendants.
(a) Instructions for Past Respanse Costs Pa�rnents. All payments required,
elsewhere in this Consent Decree, to be made in accordance with this Paragraph 58(a) shall be
rnade at https:!/www.pay.gov to the DOJ account, in accordance with instructions provided to
Settling Defendants by the Financial Litigation Unit {"FLU") of the United States Attorney's
Office for the Southern District of Georgia, Augusta Division, after the Effective Date. The
payment instructions provided by the Financial Litigation Unit shall include a Consolidated Debt
Collecrion System ("CDCS") number, which shall be used to identify all payments required to be
made in accordance with this Consent Decree. The FLU shall provide the payment instructions to
the representatives identified in Section XX�III of this Consent Decree on behalf of Settling
Defendants. Settling Defendants may change the individual to receive payment instructions on
their behalf by providing written notice of such change in accordance with Section XXVIII
(Notices and Submissions).
{b) Instructions for Future Response Costs Payments and Stipulated Penalties.
All payments required, elsewhere in this Consent Decree, ta be made in accordance with this
Paragraph 58(b) shall be made by Fedwire EFT to:
59
Federal Reserve Bank of New York
ABA = 021030004
Account = 68010727
SWIFT address = FRNYUS33
33 Liberty Street
New York NY 10045
Field Tag 4200 of the Fedwire message should read "D 68010727 Environmental .
Protection Agency"
, (c) Instructions for All Payments. All payments made under Paragraph 58(a} ar
58(b) shall reference the CDCS Number, EPA SitelSpill ID Number A4GG and DOJ Case Number
90-11-3-10081. At the time of any payment required to be made in accordance with Paragraphs
58(a) or 58(b}, Settling Defendants shall send notice that payment has been made to the United
States, and to EPA, in accordance with Section XXVIII (Notices and Submissians}, and to the EPA
Cincinr�ati Finance Office by email at acctsreceivable,cinwd�ii-�.,�a.�ov, or by mail at 26 Martin
Luther King Drive, Cincinnati, Ohio 45268. Such notice shall also reference the CDCS Number,
Site/Spill ID Number, and DOJ Case Number.
(d) Special Accounts. Any funds deposited by EPA in the AER Special
Account established pursuant to this Section may be used to conduct or finance response actions at
or in connec#ion with the Site, or may be transfeired by EPA to the EPA Hazardous Substance
Superfund.
. 59. Settling Perforrning Defendants may contest any Future Response Co�ts billed
under Paragraph 54 if they determine that EPA or the State has made a mathematical error or
included a cost item that is not within the definition of Future Response Costs, or if they believe
60
EPA incurred excess costs as a direct result of an EPA action that was inconsistent with a specific
provision or provisions of the NCP. Such objection shall be made in writing within 30 days of
receipt of the bill and must be sent to the United States (if the United States' accounting is being
disputed) ar the State (if the State's accounting is being disputed) pursuant to Section XXVIII
(Natices and Submissions). Any such objection shall specifically identify the contested Future
Response Co�#s and the basis for objection. In the event of an objection, Settling Performing
Defendants shall pay all uncontested Future Response Costs to the United States or the State
within 30 days of Settiing Performing Defendants' receipt of the bill requiring payment.
Simultaneously, Settling Performing Defendants shall establish an tnterest-bearing escrow account
in a federally-insured bank duly chartered in the State of Georgia and remit to that escrow account
funds equivalent to the amount of the contested Future Response Costs. Settling Performing
Defendants shall send to the United States, as provided in Section XXVIII (Notices and
Submissions), and the State a copy of the transmittal letter and check paying the uncontested
Future Response Costs, and a copy of the correspondence that establishes and funds the escrow
account, including, but not lirnited 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,
Settling Performing Defendants shall initiate the Dispute Resolution procedures in Section XX
{Dispute Resolution). If the United States or the State prevails in the dispute, Settling Performing
Defendants shall pay the sums due (with accrued interest) to the United States or the State, if State
costs are disputed, within five (5) days of the resolution of the dispute. If Settling Performing
Defendants prevail concerning any aspect of the contested costs, Settling Performing Defendants
shall pay that portion of the costs (plus associated accrued interest) for which they did not prevail
61
to the United States or the State, if State costs are disputed, within five days of the resolution of the
dispute. Settling Performing Defendants shall be disbursed any balance of the escrow account. Ail
payments to the United States under this Paragraph shall be made in accordance with Paragraphs
5�(b) and 58(c) (Payment Instructions). The dispute resolution procedures set forth in this
Paragraph in conjunction with the procedures set forth in Section XX (Dispute Resolution) shall be
the exclusive mechanisms for resolving disputes regarding Settling Performing Defendants' �
obligation to reimburse the United States and the State for their Future Respanse Costs.
60. Interest. Settling Perfortning Defendants, Se#tling De Minimis Defendants with the
exception of W.R. Grace & Co., and Settling De Minimis 5tate Agencies shall make payments to
EFA and the State in accordance with Section XVI of this Consent Decree. In the event that any
payment for Past Response Costs or for Future Response Costs required under this Section is not
made by the date required, the group of Settling Defendants that is delinquent.in making payment
shall pay Interest on the unpaid balance. The Interest to be paid on Past Response Costs and State
Past Response Costs under this Paragraph shall begin to accrue on the Effective Date, The Interesi
on Future Response Costs shall begin to accrue on the date af the bill. The Interest shall accrue
through the date of Settling Defendants' payment. Payments of Interest made under this Paragraph
shall be in addition to such other remedies or sanctions available to Plaintiffs by virtue of Settling
Defendants' failure to make timely payments under this Section including, but no# limited to,
payment of stipulated penalties pursuant to Paragraph 83.
� XVII. DISBURSEMENT O� SPECIAL ACCOUNT FUNDS � �
61. Creation of AER Disbursement Special Account and A�eement ta Disburse Funds
to Settlin,�Performine Defendants. Within 60 days after the Effective Date, EPA shall establish
the AER Disbursernent Special Accaunt and shall transfer from the AER Special Account to the
62
AER Disbursement Special Account those proceeds EPA receives from the Settling De Minimis
Parties, less all payments that are attributable to Past Response Costs and less $264,436.92.
Subject to the terms and conditions set forth in this Section, EPA agrees to make the funds in the
AER Disbursement Special Account, including Interest Earned on the funds in the AER
Disbursement Special Account, available for disbursement to Settling Performing Defendants as
partial reimbursement for performance of the Work under this Consent Decree. EPA shall disburse
funds from the AER Disbursernent Special Account to Settling Performing Defendants in
accordance with the procedures and milestones for phased disbursement set forth in this Section.
62. Timing, Amount, and Method of Disbursing Funds From the AER Disbursement
Special Account. Within 60 days of EPA's receipt of a Cost Summary and Certification, as
defined by Paragraph 63(b), or if EPA has requested additional information under Paragraph 63(b)
or a revised Cost Summary and Certification under Paragraph 63(c), within 60 days of receipt of
the additional information or revised Cost Summary and Certification, and subject to the
conditions set forth in this Section, EPA shall disburse the funds from the AER Disbursement
Special Account at the completion of the following milestones, and in the amounts set forth below.
63
Milestone Disbursement of Funds
1. Cornpletion of the remediation Settling Pertorming Defendants may receive 50
of contaminated soils. percent of the proceeds from #he AER
Disbursement Special Account upon achieving
this milestone. However, if Settling Performing
Defendants can demonstrate that they have
incurred costs in excess of $6,�86,996 pursuant to
Faragraph 44, Settling Performing Defendants
may receive 100 percent of the proceeds fram the
AER Disbursement Special Account.
2. Campletion of one round of in- Settling Performing Defendants may receive any
situ enhanced reductive remaining portion of the proceeds from the AER
dechlorination injections under the Disbursernent Special Account upon achieving
goundwater rernedial action. this milestone.
EPA shall disburse the funds from the AER Disbursement Special Account to Settling Performing
Defendants through the Settling Performing Defendants' counsel, in accordance with Section
X�VIII (Notices and Submissions).
63. Requests for Disbursement of Special Account Funds.
(a) Within 60 days of issuance of EPA's written confirrnation that a milestone
of the Work, as defined in Paragraph 62, has been satisfactorily completed, Settling Performing
Defendants shall submit to EPA a Cost Summary and Certification, as defined in Paragraph 63(b),
covering the Work performed pursuant to this Consent Decree up to the date of cornpletion of that
milestone. Settling Performing Defendants shall not include in any submission costs included in a
64
previous Cost Surnmary and Certification following cflmpletion of an eariier milestone of the
Work if those costs have been previously sought or reimbursed pursuant to Paragraph 62.
(b) Each Cost Summary and C�rtification shall include a complete and accurate
written cost summary and certification of the necessary costs incurred and paid by Settling
Perforrning Defendants for the Work covered by the particular submission, excluding casts not
eligibie for disbursement under Paragraph b4. Each Cost Summary and Certification shall contain
the following statement signed by the Chief Financial Officer of a Settling Performing Defendant
or an Independen# Certified Public Accountant:
To the best of my knowledge, after thorough investigation and review of Settling
Performing Defendants' documentation of costs incurred and paid for Work performed pursuant ta
this Consent Decree [insert, as appropriate: "up to the date of completion of milestone l,"
"between the date of completion of milestone 1 and the date of completion of milestone 2,"] I
certify that the information contained in or accompanying this submission is true, accurate, and
complete. I am aware that there are significant penalties for knowingly submitting false
information, including the possibility of fine and imprisonment.
T`he Chief Financial Officer of a Settling Perfarming Defendant ar Independent Certified Public
Accountant shall also provide EPA a list of #he documents that he or she reviewed in support of the
Cost Surnmary and Certification. Upon request by EPA, Se#tling Performing Defendants shall
submit to EPA any additional information that EPA deerris necessary for its review and approval of
a Cost Summary and Certification.
(c) If EPA finds that a Cost Summary and Certification includes a mathematical
error, costs excluded under Paragraph 64, costs that are inadequately documented, or costs
submitted in a prior Cost Summary and Certification, it will notify Settling Performing Defendants
b5
and provide them an opportunity to cure #he deficiency by submitting a revised Cost Summary and
Certification. If Settling Performing Defendants fail to cure the deficiency within 30 days after
being notified of, and given the opportunity to cure, the deficiency, EPA will recalculate Settling
Performing Defendants' costs eligible for disbursement for that submission and disburse the
corrected amount to Settling Performing Defendants in accordance with the procedures in
Paragraph b4 of this Section. Settling Performing Defendants may dispute EPA's recalculation
under this Paragraph pursuant ta Section XX (Dispute Resolution). In no event shall Settling
Performing Defendants be disbursed funds from the AER Disbursement Special Account in excess
of amounts properly documented in a Cost Summary and Certification accepted or modified by
EPA.
64. Costs Excluded from Disbursement. The following costs are excluded from, and
shall not be sought by Settling Performing Defendants for, disbursement from the AER
Disbursement Special Accaunt: (a) response costs paid pursuant to Section XVI (Payments for
Response Costs); (b) any other payments made by Settling Performing Defendants to the United
States pursuant to this Consent Decree, including, but not limited to, any interest or stipulated
penalties paid pursuant to Section XXI (Stipulated Penalties}; {c) attorneys' fees and costs, except
for reasonable attorneys' fees and costs necessarily related to ob#aining access or institutional
controls as required by Section IX (Access and Institutional Controls); (d) costs of any response
activities Settling Performing Defendants perform that are not required under, or approved by EPA
pursuant to, this Consent Decree; {e) costs related to Settling Performing Defendants' litigation,
settlement, development of potential contribution claims, or identificatian of defendants; ( fl
internal costs of Settling Performing Defendants, including but not limited to, salaries, travel, or in=
kind services, except for those costs that represent the work of employees of Settling Performing
66
Defendants directly performing the Work; (g) any costs incurred by Settling Performing
Defendants prior to the Effective Date; or (h) any costs incurred by Settling Performing Defendants
pursuant to Section XX (Dispute Resolution).
b5, Termination ot Disbursements from the Special Account. EPA's obligation to
disburse funds from the AER Disbursement Special Account under this Consent Decree shall
terminate upon EPA's determination that Settling Per#'orming Defendants: (a) have knowingly
submitted a materially false or misleading Cost Summary and Certification; (b) have subrnitted a
materially inaccurate or incornplete Cost Summary and Certification, and have failed to correct the
rnaterially inaccurate or incomplete Cost Summary and Certification within 30 days after being
notified of, and given the opportuniry to cure, the deficiency; or (c) failed to submit a Cost
Summary and Certification as required by Paragraph 63 within 30 days {or such longer period as
EPA agrees) after being notified that EPA intends to terminate its obligation to make
disbursements pursuant to this Sectian because of Settling Performing Defendants' failure to
submit the Cost Summary and Certification as required by Paragraph 63. EPA's obligation to
disburse funds from the AER Disbursement Special Account shall also terminate upon EPA's
assumption of performance of any portion of the Work pursuant to Paragraph 99, when such
assumption of performance of the Work is not challenged by Settling Performing Defendants or, if
challenged, is upheld under Section XX (Dispute Resolution). Settling Performing Defendants
may dispute EPA's termination of special account disbursements under Section XX (Dispute
Resolution).
66. Recapture of Special Account Disbursements. Upon termination of disbursements
from the AER Disbursement Speciai Account under Paragraph 65, if EPA has previously disbursed
funds from the AER Disbursement Special Account for activities specifically related to the reason
67
for termination, e.g., discovery of a materially false or misleading submission ai�er disbursement of
funds based on that submission, EPA shall submit a bill to Settling Performing Defendants for
those amounts already disbursed from the AER Disbursement Special Account specifically related
to the reason for termination, plus Interest on that amount covering the period from the date of
disbursement of the funds by EPA to the date of repayment of the funds by Settling Performing
Defendants. Within 30 days of receipt of EPA's bill, Settling Performing Defendants shall
reimburse the Hazardous Substance Superfund for the total amount billed. Payment shall be made
in accordance with Paragraphs 58(b) and 58{c). Upon receipt of payment, EPA may deposit all ar
any portion thereaf in the AER Special Account, the AER Disbursement Special Account, or the
Hazardous Substance Superfund. The determination of where to deposit or how to use the funds
shall not be subject to challenge by Settling Performing Defendants pursuant to the dispute
resolution provisions of t�iis Consent Decree or in any other forum. Settling Performing
Defendants may dispute EPA's determination as to recapture of funds pursuant to Section XX
{Dispute Resolution).
67. Balance of Special Account Funds. After the Remedial Action has been performed
in accordance with this Consent Decree and the Performance Standards have been achieved, and
after EPA completes all disbursement to Settling Perfo�ning Defendants in accordance with this
Section, if any funds remain in the AER Disbursement Special Account, EPA may transfer such
funds to the AER Special Account or to the Hazardous Substance Superfund. Any transfer of
funds to the AER Special Account or the Hazardous Substance Superfund shall nat be subject to
challenge by Settling Defendants pursuant to the dispute resolution provisions of this Consent
Decree or in any other forum.
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� XViII. INDEMNIFICATION AND INSURANCE
68. Settlin,� Performing Defendants' Indemnification of the United States and the State.
(a) The United States and the State do not assume any liability by entering into
this Consent Decree or by virtue of any designation of Settling Performing Defendants as EPA's
authorized representatives under Section 104(e) of CERCLA, 42 U.S.C. § 9604{e), Settling
Performing Defendants shall indemnify, save and hold harmless the United States, the State, and
their officials, agents, employees, contractors, subcontractors, or representatives for or from any
and al1 claims or causes of action arising from, or on account of, negligent or other wrongful acts
or omissions of Settling Performing Defendants, their officers, directors, employees, agents,
contractors, subcontractors, and any persons acting on their behalf or under their control, in
carrying out activities pursuant to this Consent Decree, including, but not limited to, any claims
arising from any designation of Settling Performing Defendants as EPA's authorized
representatives under Section 104(e) of CERCLA. Purther, Settling Performing Defendants agree
to pay the United States and the State all costs they incur including, but not limited to, attorneys'
fees and other expenses of litigation and settlement arising from, or on account of, claims made
against the United States or the State based on negligent or ather wrongful acts or omissions of
Settling Perfarming Defendants, their officers, directors, employees, agents, contractors,
subcontractors, and any persons acting on their behalf or under their control, in canying out
activities pursuant to this Consent Decree. Neither the United States nor the State shall be held out
as a party to any contract entered into by or on behalf of Settling Performing Defendants in
carrying out activities pursuant to this Consent Decree. Neither Settling Performing Defendants
nor any such contractor shall be considered an agent of the United States or the State.
69
{b) The United States and the State shall give Settling Performing Defendants
notice of any claim for which the United States or the State plans to seek indemnification pursuant
to Paragraph b8, and shall consult with Settling Performing Defendants prior to settling such claim.
69. Settling Defendants covenant not to sue and agree not to assert any claims or causes
of action against the United States and the State far damages or reimbursement 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, ageement, or arrangement between any one or more of Settling Performing Defendants
and any person for performance of Work on or relating to the Site, including, but not limited to,
claims on account of construction delays. In addition, Settling Performing Defendants shall
indemnify and hold harmless ihe United States and the State with respect to any and all claims for
damages or reimbursement arising frorn or on account af any contract, agreement, or arrangement
between any one or more of Settling Performing Defendants and any person for performance of
Work on or relating to the Site, including, but not limited to, claims on accaunt of construction
detays.
70. No later than l 5 days before commencing any on-Site Work, Settling Perforrning
Defendants shall secure, and shall maintain until the first anniversary of EPA's Certification af
Completion of the Remedial Action pursuant to Paragraph 49(b) of Section XN {Certification of
Completion) commercial general liability insurance with limits of $2,000,000.00, for any one
occurrence, and automabile liability insurance with limits of $2,OQ0,000.00, combined single limit,
narning the United States and the State as additional insureds wi#h respect to all liability arising out
of the activities performed by or on behalf of Settling Performing Defendants pursuant to this
Consent Decree. In addition, for the duration of this Consent Decree, Settling Perforrning
Defendants shall satisfy, or shall ensure that their contractors or subcontractors satisfy, all
70
applicable laws and regulations regarding the pxovision of worker's compensation insurance for all
persans performing the Work on behalf of Settling Performing Defendants in furtherance of this
Consent Decree, Prior to commencement of the Work under this Consent Decree, Settling
Performing Defendants shall provide to EPA and the State certificates of such insurance and a copy
of each insurance policy. Settling Performing Defendants shall resubmit such certificates and
copies of policies each year on the anniversa.ry of the Effective Date. If Settling Perforrning
Defendants demonstrate by evidence satisfactory to EPA and the State that any contractor or
subcontractor maintains insurance equivalent to that described above, or insurance covering the
same risks but in a lesser amaunt, then, with respect to that contractor or subcontractor, Settling
Performing Defendants need provide only that portion of the insurance described above that is not
maintained by the contractar or subcontractor. The Settling Performing Defendants may, on any
anniversary of the Effective Date, or at any other time agreed to by the Parties, petition EPA in
writing to request a reduction in the applicable insurance amount.
XIX. FORCE MAJEURE
7L "Force majeure," for purposes of this Consent Decree, is defined as any event
arising from causes beyond the control of Settling Performing Defendants, af any entity cantrolled
by Settling Performing Defendants, or of Settling Performing Defendants' contractors, that delays
or prevents the perforrnance of any obligation under this Consent Decree despite Settling
Pertorming Defendants' best efforts to fulfill the obligation. The requirement that Settling
Performing Defendants exercise "best efforts to fulfill the obligatian" includes using best efforts to
anticipate any potential force majeure and best efforts to address the effects of any potential force
majeure {1) as it is occurring and (2) 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"
71
does not include financial inability to comple#e the Work or a failure to achieve the Performance
Standards.
72. If any event occurs or has occurred that may delay the perforrnance of any
obligation under this Consent Decree for which Settling Ferforming Defendants intend or may
intend to assert a claim of force majeure, Settling Perforrning Defendants shall notify orally EPA's
Project Coordinator or, in his or her absence, EPA's Alternate Project Coordinator or, in the event
both of EPA's designated representaiives are unavailable, the Director of the Superfund Division,
EPA Region 4, within 10 days of when Settling Performing Defendants first knew that the event
might cause a delay. Within 10 days thereafter, Settling Performing Defendants shall provide in
writing to EPA and the State an explanation and description of the reasons for the delay; the
anticipated duration of the delay; all acrions taken or to be taken to prevent or minimize the delay;
a schedule for irnplementation of any measures to be taken to prevent or mitigate the delay or the
effect of the delay; Settling Perfortning Defendants' rationale for attributing such delay to a force
rnajeure; and a statement as to whether, in the opinion of Settling Performing DefenrTants, such
event may cause or contribute to an endangerment to public health or welfare, or the environrnent.
Settling Performing Defendants shall include with any notice all available documentation
supporting their claim that the delay was attributable to a force majeure. Settling Performing
Defendants shall be deemed to know af any circumstance of which Settling Performing
Defendants, any entity controlled by Settling Performing Defendants, or Settling Performing
Defendants' contractors knew or should have known. Failure to comply with the above
requirements regarding an event shall preclude Settling Performing Defendants from asserting any
claim of force majeure regarding that event, provided, however, that if EPA, despite the late notice,
is able to assess to its satisfaction whether the event is a fprce majeure under Paragraph 71 and
72
whether Settling Performing Defendants have exercised their best efforts under Paragraph 71, EPA
may, in its unreviewable discretion, excuse in writing Settling Peri�orming Defendants' failure ta
submit timely notices under this Paragraph.
73. If EPA, after a reasonable opportunity for review and comrnent by the State, agrees
that the delay or anticipated delay is attributable to a force majeure, the time for performance of the
obligations under this Consent Decree that are affected by the force majeure will be extended by
EPA, after a reasonable opportunity for review and comment by the State, for such time as is
necessary to complete those obligations. An extension of the time for performance of the
ubligations affected by the force majeure shall not, of itself, extend the time for performance of any
other obligation. 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, EPA
will notify Settling Performing Defendants in writing of its decision. If EPA, after a reasonable
opportunity for review and comment by the State, agrees that the delay is attributable to a force
majeure, EPA wili nfltify Settling Performing Defendants in writing of #he length of the extension,
if any, for performance of the obligations affected by the force majeure.
74. If Settling Performing Defendants elect to invoke the dispute resolution procedures
set forth in Section XX (Dispute Resolution), they shall do so no later than 15 days after receipt of
EPA's notice. In any such proceeding, Settling Perfarming Defendants 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, that the duration of the delay or the extension sought was or wi11
be warranted under the circumstances, that best efforts were exercised to avoid and mitigate the
effects of the delay, and that Settling Performing Defendants complied with the requirements of
Paragraphs 71 and 72. If Settling Performing Defendants carry this burden, the delay at issue shall
73
be deemed not to be a violation by Settling Performing Defendants of the affected obligation of
this Cansent Decree identified to EPA and the Court.
YX. DISPUTE RESOLUTION
75. Uniess otherwise expressly provided for in this Consent Decree, the dispute
resolution procedures of this Section shall be the exclusive mechanism to resolve disputes
regarding this Cansent Decree. However, the procedures set forth in this Section shall not apply to
actions by the United States to enforce obligations of Settling Defendants that have not been
disputed in accordance with this Section.
76. Any dispute regarding this Consent Decree shall in the first instance be the subject
of informal negotiations between the parties to the dispute, The period for informal negotiations
shall not exceed 20 days from the time the dispute arises, unless it is madified by written
agreement of the parties to the dispute. The dispute shall be considered to have arisen when one
party sends the other parties a written Notice of Dispute.
77. Statements of Position
(a) In the event that the parties cannot resolve a dispute by informal negotiations
under the preceding Paragraph, then the position advanced by EPA shall be considered binding
unless, within 30 days after the conclusion of the informal negotiation period, Settling Defendants
invoke the formal dispute resolution procedures of this Section by serving on the United States and
the State a written Statement of Position on the matter in dispute, including, but not lirnited to, any
factual data, analysis or opinian supporting that posi#ion and any supporting documentation relied
upon by Settling Defendants. The Statement of Position shall specify Settling Defendan#s' position
as to whether formal dispute resolution should proceed under Paragraph 78 or Paragraph 79.
74
(b) Within 30 days after receipt of Settling Defendants' Statement of Position,
EPA will serve on Settling Defendants its Statement of Position, including, but not limited to, any
factual data, analysis, or opinion supporting that position and all supporting documentation relied
upon by EPA. EPA's Statement of Position shali include a statement as to whether formal dispute
resolution shouid proceed under Paragraph 78 or Paragraph 79. Within 15 days after receipt of
EPA's Statement of Position, Settling Defendants rnay submit a Reply.
(c) If there is disagreement between EPA and Settling Defendants as to whether
dispute resolution should proceed under Paragraph 78 or Paragraph 79, the parties to the dispute
shall follow the procedures set forth in the paragraph determined by EPA to be applicable.
However, if Settling Defendants ultimately appeal to the Court to resolve the dispute, the Court
shall determine which paragraph is applicable in accordance with the standards of applicability set
forth in Paragraphs 7$ and 79.
78. Record Review. Formal dispute resolution for disputes pertaining to the selection
or adequacy of any response action and all other disputes that are accorded review on the
administrative record under applicable principles of administrative law shall be conducted pursuant
to the procedures set forth in this Paragraph. For purposes of this Paragraph, the adequacy of any
response action includes, without limitation, the adequacy or appropriateness of plans, procedures
to implement plans, ar any other items requiring approval by EPA under this Consent Decree, and
the adequacy of the performance af response actions taken pursuant to this Consent Decree.
Nothing in this Consent Decree shall be construed to allow any dispute by Settling Defendants
regarding the vatidity of the ROD's provisions.
{a) An administrative record of the dispute shall be maintained by EPA and
shall contain all statements of position, including supporting documentation, submitted pursuant to
� '
this Section. Where appropriate, EPA may allow submission of supplernental statements of
position by the parties to the dispute.
(b} The Director of the Superfund Division, EPA Region 4, will issue a final
administrative decision resalving the dispute based on the administrative record described in
Paragraph 78(a). This decision shall be binding upon Settling Defendants, subject only to the right
to seek judicial review pursuant #o Paragraphs 78(c) and 78(d).
(c) Any administrative decision made by EPA pursuant to Paragraph 80{b).
shall be reviewable by this Court, provided that a motion for judicial review of the decision is filed
by Settling Defendants with the Court and served on all Parties within 10 days of receipt of EPA's
decision. The motion shall include a description of the matter in dispute, the efforts made by the
parties to resolve it, the relief requested, and the schedule, if any, within which the dispute must be
resolved to ensure orderly implementation of this Consent Decree. The United States may file a
response to Settling Defendants' motion.
(d) In proceedings on any dispute governed by this Paragraph, Settling
Defendants shall have the burden of demonstrating that the decision of the Superfund Division
Director is arbitrary and capricious or otherwise not in accordance with law. Judicial review of
EPA's decision shall be on the administrative record compiled pursuant to Paragraph 7$(a).
79. Formal dispute resolution for disputes that neither pertain to the selection or
adequacy of any response action nor are otherwise accorded review on the administrative record
under applicable principles of administrative law, shall be governed by this Paragraph.
(a) Following receipt of Settling Defendants' Statement of Position submitted
pursuant to Para,graph 77, the Director of the Superfiind Division, EPA Region 4, wi11 issue a final
decision resolving the dispute. The Superfund Divisian Director's decision shall be binding on
76
Settling Defendants unless, within 10 days of receipt of the decision, Settling Defendants tile with
the Court and serve on the parties a motion for judicial review of the decision setting forth the
matter in dispute, the efforts made by the parties to resolve it, the relief requested, and the
schedule, if any, within which the dispute must be resolved to ensure orderly implementation of the
Consent Decree. The United States may file a response to Settling Defendants' motion.
(b) Notwithstanding Paragraph M(CERCLA Section 113(j) Record Review af
ROD and Work} of Section G(Background), judicial review of any dispute governed by this
Paragraph shall be governed by applicable principles of law.
80. The invocation of formal dispute resolution procedures under this Section shall not
extend, postpone, or affect in any way any obligation of Settling Defendants under this Consent
Decree, not directly in dispute, unless EPA or the Court agrees otherwise. Stipulated penalties
with respect to the disputed matter shall continue to accrue but payment shall be stayed pending
resolution of the dispute as provided in Paragraph 89. Notwithstanding the stay of payment,
stipulated penalties shall accrue from the first day af noncompliance with any applicable provision
of this Consent Decree. In the event that Settling Defendants do not prevail on the disputed issue,
stipulated penalties shall be assessed and paid as provided in Section XXI (Stipulated Penalties).
8]. Disputes solelv between the State and Settling,,,Defendants. Disputes
arising under the Consent Decree between the State and Settling Defendants shall be governed in
the following manner: the procedures for resolving the disputes mentioned in this Paragraph shall
be the same as provided in Paragraphs 75-80, except that each reference to EPA shall read as a
reference to GA EPD, each reference to the Director of the Superfund Division, EPA Region 4,
shall be read as a reference to the Director of GA EPD, and each reference to the United S#ates
shall be read as a reference to the S#ate. �
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XXI. STIPULATED PENALTIES
82. Settling Performing Defendants shall be liable for stipulated penalties in the
amounts set forth in Paragraphs 83 and 84 to the United States for failure to comply with the
requirements of this Consent Decree specified below, unless excused under Section XUY (Force
Majeure). "Compliance" by Settling Performing Defendants shall include completion of all
payments and activities required under this Consent Decree, or any plan, report, or other
de]iverable approved under this Consent Decree, in accordance with all applicable requirements of
law, this Consent Decree, the SOW, and any plans, reports, or other deliverables approved under
this Consent Decree and within the specified time schedules established by and approved under
#his Consent Decree.
83. Sti,pulated Penalty Arnounts - Wnrk (Including Payrnents and Excludin P�„ lans'
Reports, and Other Deliverables).
(a) The following stipulated penalties shall accrue per violation per day for any
noncompliance identified in Paragraph 83(b):
Penaltv Per Violation Per Day Period of Noncompliance
$ 1,000.00 lst through 14th day
� 2,500.00 15th through 30th day
$ 5,000.00 31 st day and beyond
(b) Compliance Milestones.
(i) Failure to implement the EPA-appraved Soil Remedial Design Work
Plan in accardance with the SOW and the approved schedule therein;
78
(ii) Failure to implement the EPA-approved Groundwater Remedial
Design Work Plan in accordance with the SOW and the approved
scheduletherein;
(iii) Failure to implernent the EPA-approved Soil Remedial Action Work
Plan in accordance with the SOW and the approved schedule
cantained therein;
(iv) Failure to implement the EPA-approved Groundwater Remedial
Action Wark Plan in accordance with the SOW and the approved
schedule contained therein;
(v) Failure to complete the Remedial Action required under this Consent
Decree, the ROD, and SOW;
(vi) Failure to establish and maintain the Performance Guatantee(s) as
required by Section XIII of this Consent Decree;
(vii) Failure to procure and maintain comprehensive general liability
insurance as required by Section XVIII of this Consent Decree;
(viii) Failure to hire and obtain EPA approval of Settling Performing
Defendants' Supervising Contractor, as required by Section VI of
this Consent Decree;
(ix) Failure to implement further response actions or any modification to
the SOW pursuant to this Consent Decree;
(x) Failure to timeiy pay all rnonies required to be paid pursuant to this
Consent Decree in accordance with Section XVI of this Consent
Decree;
79
{xi) Failure to seek EPA approval and to timely record, in the appropriate
land records office, Notice of #his Consent Decree and all applicable
Institutional or Proprietary Controls as required in this Consent
Decree, the ROD, and the SOW;
84. Stipulated Penalty Amounts - Plans, Reports, and other Deliverables. The
following stipulated penalties shall accrue per vinlation per day for failure to submit timely or
adequate other reports, plans, or deliverables (pursuant ta this Consent Decree) that are not
referenced in Paragraph 83(b) above:
Penaltv Per Violation Per Day Period of Noncompliarice
$ 750.00 1 st through 14th day
$ 1,500.00 15th through 30th day
$ 3,000.00 31 st day and beyond
85. In the event that EPA assumes performance of a portion or a11 of the Work pursuant
to Paragraph 99 (Work Takeover), Settling Performing Defendants shall be liable for a stipulated
penalty in the amount of $500,040.00. Stipulated penalties under this Paragraph are in addition to
tl�e remedies available under Paragraphs 47 (Funding for Work Takeover) and 99 {Work
Takeover).
86. All penalties shall begin to accrue on the day after the complete performance is due
or the day a violation occurs, and shall continue to accrue through the tinal day of the correction of
the noncompliance or completion of the activity. However, stipulated penalties shall not accrue:
(a) with respect to a deficient submission under Sectian XI (EPA Approval of Plans and Other
Submissions), during the period, if any, beginning on the 31 st day after EPA's receipt of such
submissinn until the date that EPA no#ifies Settling Performing Defendants of any deficiency; {b)
80
with respect to a decision by the Directar of the Superfund Division, EPA Region 4, under
Paragraph 78{b) or 79(a) of Section XX (Dispute Resolution), during the period, if any, beginning
on the 21 st day after the date that Settling Performing Defendants' reply to EPA's Statement of
Position is received until the date that the Director issues a final decision regarding such dispute; or
(c) with respect ta judicial review by this Court of any dispute under Section XX (Dispute
Resolution), during the period, if any, beginning on the 31 st day after the Court's receipt of the
final submissian regarding the dispute until the date that the Court issues a final decision regarding
such dispute. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate
penalties for separate violations of this Consent Decree.
87. Following EPA's determination that Settling Performing Defendants have failed to
comply with a requirement of this Consent Decree, EPA may give Settling Performing Defendants
written notification of the sarne and describe the noncornpliance. EPA may send Settling
Performing Defendants a written demand for the payment of the penalties. However, penalties
shali accrue as provided in the preceding Paragraph regardless of whether EPA has notified
Settling Performing Defendants of a violation.
88. All penalties accruing under this Section shall be due and payable to the United
States within 30 days of Settling Performing Defendants' receip# from EPA of a demand for
payment of the penalties, unless Settling Performing Defendants invoke the Dispute Resolution
procedures under Section XX (Dispute Resolution) within the 30-day period. All payments to the
Uni#ed States under this Section shall indicate that the payment is for stipulated penal#ies, ar�d sha11
be made in accordance with i'aragraphs S8(b) and 58(c) {Payment Instructions). �
89. Penalties shall cnntinue to accrue as provided in Paragraph 8b during any dispute
resolution period, but need not be paid until the fallowing:
�1
(a) If the dispute is resolved by agreement of the Parties or by a decision of EPA
that is not appealed to this Court, accrued penalties determined to be owed shail 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 Performing Defendants shall pay all accrued penalties determined by the
Court to be owed to EPA within 60 days of receipt of the Court's decision or order, except as
provided in Paragraph 89(c);
(c) If the Disfrict Court's decision is appealed by any Party, Settling Performing
Defendants shall pay ali accruetl penalties determined by the District Court to be owed to the
United Sta#es into an interest-bearing escrow account within 60 days of receipt of the Court's
decision or order. Penalties shall be paid into this account as they continue to accrue, at least every
60 days. Within 15 days of receipt of the final appellate court decision, the escrow agent shall pay
the balance of the account to EPA or to Settling Performing Defendants to the extent that they
prevaiL
90. If Settling Performing Defendants fail to pay stipulated penalties when due, Settling
Performing Defendants shall pay Interest on the unpaid stipulated penalties as follows: (a) if
Settling Performing Defendants have tirnely 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 89 until the date of
payment; and (b) if Settling Performing Defendants fail to timely invoke dispute resolution,
Interest shall accrue from the date of dernand under Paragraph 88 until the date of payrnent. If
Settling Performing Defendants fail to pay stipulated penalties and Interest when due, the United
States may institute proceedings to collect the penalties and Interest,
82
91. The payment of penalties and Interest, if any, shall not alter in any way Settling
Performing Defendants' obligation to complete the performance of the Work required under this
Consent Decree.
92. Nothing in this Consent Decree shall be construed as prohibiting, altering, or in any
way limiting the ability of the United States or the State to seek any other remedies or sanctions
available by virtue of Settling Performing Defendants' violation of this Consent Decree or of the
statutes and regulations upon which it is based, including, but not limited to, penalties pursuant to
Section 122(Z) of CERCLA, 42 U.S.C. § 9622(�, provided, however, that the United States shall
not seek civil penalties pursuant to Section 122{� of CERCLA for any violation for which a
stipulated penaity is provided in this Consent Decree, except in the case of a willful violation of
this Consent Decree.
93. Notwithstanding any other pmvision of this Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
this Consent Decree.
XXII. COVENANTS BY PLAINTIFFS
94. Covenants for Settling Performin��Defendants and Settling�Non-Performing Federal
A�encies bv United States and the State. In consideration of the actions that will be performed and
the payments that will be made by Settling Performing Defendants and Settling Non-Performing
Federal Agencies under this Consent Decree, and except as specifically provided in Paragraphs 95,
96, and 98, the United States and the State covenant not to sue or to take administrative action
against Settling Performing Defendants and Settling Non-Performing Federal Agencies pursuant to
Sections 106 and 107(a) of CERCLA, or with respect to the State, pursuant to Code Sections 12-8-
71, 12-8-96, and 12-8-9b.1 of HSRA and Section 107(a) of CERCLA, relating to the Site. Except
83
with respect to future liability, these covenants shall take effect upon the receipt by EPA and the
S#ate of the payments required by Paragraphs 53(a) and 53(b) {Payments for Past Response Costs)
and any Interest or stipulated penalties due thereon under Paragraph 60 {Interest) or Section XXI
(Stipulated Penalties). With respect to future liability, these covena.nts shall take effect upon
Certitication of Completion of Remedial Action by EPA pursuant to Paragraph 49{b) of Section
XN (Certification of Completion). These covenants are conditioned upon the satisfactory
performance by Settling Performing Defendants and Settling Non-Performing Federal Agencies of
their obligations under this Consent Decree. These covenants extend only to Settling Performing
Defendants and Settling Non-Perfarming Federal Agencies and do not extend ta any other person.
95. United States' and the State's Pre-certification Reservations. Notwithstanding any
other provision of this Consent Decree, the United States and the State reserve, and this Consent
Decree is without prejudice to, the right to institute proceedings in this action or in a new action, or
to issue an administrative order, seeking to compel Settling Perfflrming Defendants, and EPA and
the State reserve the right to issue an administrative arder seeking to compel Settling Non-
Performing Federal Agencies, to perform further response actions relating to the Site and/or to pay
the United States and the State for additional costs of response if, (a) prior to Certification of
Completion of the Remedial Action, (i) conditions at the Site, previously unknown to EPA, are
discovered, or (ii) information, previously unknown ta EPA, is received, in whole or in part, and
(b) EPA determines that these previously unknown conditions or information together with any
other relevant information indicates that the Remedial Action is not protective of human health or
the environment.
96. United S#a#es' and the State's Post-certification Reservations. Notwithstanding any
other provision of this Consent Decree, the United States and the State reserve, and this Consent
84
Decree is without prejudice to, the right to institute proceedings in this action or in a new action or
to issue an administrative order, seeking to compe� Settling Performing Defendants, and EPA and
the State reserve the right to issue an administrative order seeking to compel Settling Non-
Performing Federal Agencies, to perform further response actions relating to the Site andlor to pay
the United S#ates and the State for additional costs of response if, (a) subsequent to Certification of
Cornpletion of the Remedial Action, (i) conditions at the Site, previously unknown to EPA, are
discovered, or (ii) information, previously unknown to EPA, is received, in whole or in part, and
(b) EPA determines that these previously unknown conditions or this information together with
other relevant information indicate that the Remedial Action is not protective of human health or
the environment.
97. For purposes of Paragraph 95, the information and the conditions known to EPA
will include only that information and those conditions known to EPA as of the date the ROD was
signed and set forth in the Record of Decision for the Site and the administrative record supporting
the Record of Decision. For purposes of Paragraph 96, the information and the conditions known
to EPA shali include only that information and those conditions known to EPt� as of the date of
� Certification of Completion of Remedial Action and set forth in the Record of Decision, the
administrative record supporting the Record of Decision, the post-ROD administrative record, or in
any information received by EPA pursuant to the requirements of this Consent Decree prior to
Certification of Completion of the Remedial Action.
98. General Reservations of Ri ts Against Settling Performing Defendants and
Settling Non-Performing Federal Agencies. The United States and the State reserve, and this
Consent Decree is without prejudice to, all rights against Settling Performing Defendants and EPA
and the federal natural resource trustee and the State reserve, and this Consent Decree is without
85
prejudice to, all rights against Settling Non-Performing Federal Agencies, with respect to all
nnatters not expressly included within Plaintiffs' covenants. Notwithstanding any other provision
of this Consent Decree, the United States and the State reserve all rights against Settling
Performing Defendants, and EPA and the federal natural resource trustees and the State reserve,
and this Consent Decree is without prejudice to, all rights against Settling Non-Performing Federal
Agencies, with respect to:
(a) claims based on a failure by Settling Performing Defendants or Settling
Non-Performing Federal Agencies to meet a requirement of this Consent Decree;
{b) liability arising from the past, present, or future disposal, release, ar threat of
release of Waste Material outside of the Site;
(c) liability based on the ownership or operation of the Site by Settling
Perfi�rming Defendants or Settling Non-Performing Federal Agencies when such ownership or
operation commences after signature of this Consent Decree;
(d) liability based on Settling Performing Defendants' or Settling Non-
Performing Federal Agencies' transportation, treatment, storage, or disposal, or the arrangement
for the transportation, treatment, storage, or disposal of Waste Material at or in connection with the
Site, other than as provided in the ROD, the Work, or otherwise ordered by EPA, after signature of
this Consent Decree;
{e) liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
(fl criminalliability; �
(g) liability for violations of federal or state law which occur during or after
implementation of the Worlc;
86
(h) liability, prior to Certification of Cornpletion of the Remedial Action, for
additional response actions that EPA determines are necessary to achieve and maintain
Performance Standards or to carry aut and maintain the ef�ectiveness of the remedy set forth in the
ROD, but that cannot be required pursuant to Paragraph 13 (Modification of SOW or Related
Wark Plans); and
(i) liability for costs incurred or to be incurred by the Agency for Toxic
Substances and Disease Registry regarding the Site.
99. Work Takeover.
{a} In the event EPA determines that Settling Performing Defendants (i) have
ceased irnplementation of any portion of the Work, or (ii) are seriously or repeatedly deficient or
late in their perforrnance �f the Work, or {iii) are implementing the Work in a manner that may
cause an endangerment to human health or the environment, EPA may issue a written notice
("Work Takeover Notice") to Settling Performing Defendants. Any Work Takeover Notice issued
by EPA will specify the grounds upon which such notice was issued and will provide Settling
Perfortning Defendants a period of 15 days within which to remedy the circumstances giving rise
to EPA's issuance of such notice.
(b) If, after expiration of the 15-day notice period specified in Paragraph 99(a),
Settling Perforrning Defendants have not remedied to EPA's satisfaction the circumstances giving
rise to EPA's issuance of the relevant Work Takeover Notice, EPA rnay a# any time thereafter
assume the performance of all or any portion(s) of the Work as EPA deems necessary ("Work
Takeover"). EPA will notify Settling Performing Defendants in writing (which writing may be
electronic) if EPA determines that implementation of a Work Takeover is warranted under this
Paragraph 99(b). Funding of Work Takeover costs is addressed under Paragraph 47,
87
(c) Settling Performing Defendants may invoke the procedures set forth in
Paragraph 78 (Record Review), to dispute EPA's implementation of a Work Takeover under
Paragraph 99(b). However, notwithstanding Settling Performing Defendants' invocation of such
dispute resolution procedures, and during the pendency of any such dispute, EPA may in its sole
discretion commence and continue a Work Takeover under Paragraph 99(b) until the earlier of
(1) the date that Settling Performing Defendants rernedy, to EPA's satisfaction, the circumstances
giving rise to EPA's issuance of the relevant Work Takeover Notiee, or (2) the date that a final
decision is rendered in accordance with Paragraph 78 (Record Review) requiring EPA to terminate
such yVork Takeover.
100. Notwithstanding any other provision of this Consent Decree, the United States and
the State retain all authority and reserve all rights to take any and all response actions authorized by
law.
XXIII. COVENANTS BY SETTLING PERFORMING DEFENDANTS AND
� SETTLING NON-PERFORMING FEDERAL AGENCIES
101. Covenant Not to Sue by Settlin� Performin� Defendants. Subject to the
reservations in Paragraph 105, Settling Performing Defendants covenant not to sue and agree not to
assert any clairns or causes of action against the United States or the State with respect to the Site,
and this Consent Decree, including, but not limited to:
(a) any direct or indirect claim for reitnbursement from the Hazardous
Substance Superfund {established pursuant to the Internal Revenue Code, 2b U.S.C. § 9507)
through CERCLA Sections 1Q6(b){2), 107, 111, 112, 113 or any other provision of law;
88
(b) any claims against the United States, including any department, agency or
instrumentality of the United States under CERCLA Sections 107 or 113, RCRA Section 7002(a),
42 U.S.C. § b972(a), or state law regarding the Site; or
- (c) any claims arising out of response actions at or in connection with the Site,
including any claim under the United States Constitution, the Georgia Constitution, the Tucker
Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended, or at
common law.
(d) any direct or indirect claim for disbursement from #he AER Special Account
or AER Disbursement Special Account, except as provided in Section XVII (Disbursement of
Special Account Funds).
102. In consideration of the actions that will be performed and payments that will be
made by Settling Defendants and Settling Federal Agencies pursuant to this Consent Decree and
the agreement described in Paragraph 6 and 55 of this Consent Decree, Settling Performing
Defendants agree not to assert any clairns or causes of action and to waive all claims or causes of
action (including but not limited to claims or causes of action under Sectians 107{a) and 113 of
CERCLA} that they may have for all "matters addressed" in this Consent Decree. "Matters
addressed" are defined in Paragraph 120 of this Consent Decree.
103. Covenant bv Settlin� Non-Performin� Federal A encies. Settling Non-Performing
Federal Agencies agree not to assert any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. �
9507) through CERCLA Sections 106(b)(2), 10�, 11 l, 112, 113 or any other provision af law with
respect to the Site and this Consent Decree. This covenant does not preclude demand for
reimbursement from the Superfund of costs incurred by a Settling Non-Performing Federal Agency
89
in the performance of its duties (other than pursuant to this Consent Decree) as lead or support
agency under the National Contingency Plan (40 C.F.R. Part 300).
104. Except as provided in Paragraph 107 (Claims Against MSW Generators and
Transporters), Paragraph i09 (Claims Against De Minimis and Ability to Pay Parties) and
Paragraph 123 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if
the United States or the State brings a cause of action or issues an order pursuant to any of the
reservations in Section XXII (Covenants by Plaintiffs), other than in Paragraphs 98(a) (claims for
failure to meet a requirement of the Decree), 98( fl(criminal liabiliry), and 98(g) {violations of
federal/state law during or after implementation of the Work), but only to the extent that Settling
Performing Defendants' claims arise from the same response action, response costs, or darnages
that the United States or the State is seeking pursuant to the applicable reservation.
145. Settling Performing Defendants reserve, and this Consent Decree 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 RCR.A and
for which the waiver of sovereign imrnunity is found in a statute other than CERCLA or RCItA,
for money damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act ar 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 ar amission occurred. However, the foregoing
sha11 not include any claim based on EPA's selection of response actions, or the oversight or
approval of Settling Performing Defendants' plans, reports, other deliverables or activities.
Settling Performing Defendants also reserve, and this Consent Decree is without prejudice to,
90
claims against the State, subject to the provisions ofthe Georgia Tort Claims Act, O.C.G,A. � 50-
21-20, et seq., and brought pursuant to any statu#e other than CERCLA, RCRA, or HSRA and for
which the waiver of sovereign irnmunity is specifically found. Settling Performing Defendants
also reserve, and this Consent Decree is without prejudice to, contribution claims against Settling
Federal Agencies in the event any claim is asserted by the United States or the State against
Settling Performing Defendants pursuant to any of the reservations in Section XXII (Covenants by
Plaintiffs) other than in Paragraphs 98(a) (claims for failure to meet a requirement of the Decree),
98(fl (crirninal liability), and 98(g) (violations of federal/state law during or after implementation
of the Work), but only to the extent that Settling Performing Defendants' claims arise from the
sarne response action, response costs, or damages that the United States or the State is seeking
pursuant to the applicable reservation.
106. Nothing in this Consent Decree shall be deemed to constitute preau#horization of a
claim within the meaning of Section 111 of CERCLA, 42 U.S.C. � 9b11, or 40 C.F.R.
� 300.700(d).
107. Claims Against MSW Generators and Transporters. Settling Performing
Defendants agree not to assert any claims and to waive all claims or causes of action {including but
not limited #o claims or causes of action under Sections 107(a) and 113 of CERCLA) that they may
have for all matters relating to the Site against any person where the person's liability to Settling
Performing Defendants with respect to the Site is based solely on having arranged for disposal or
treatment, or for transport for disposal or treatment, of Municipal Solid Waste (MSW) at the Site,
if the volume of MSW disposed, treated or transported by such person to the Site did not exceed
0.2 percent of the total volume of waste at the Site.
91
] 08. The waiver in Paragraph 107 shall not apply with respect ta any defense, claim, or
cause of action that a Settling Perforrning Defendant may have against ar�y person meeting the
criteria in Paragraph 107 if such person asserts a claim or cause of action relating to the Site
against such Settling Perforrning Defendant. T'his waiver also shall not apply to any claim or cause
of action against any person meeting the above criteria if EPA determines that: (a) the MSW
contributed significantly or could contribute significantly, either individually or in the aggregate, to
the cost of the response action or natural resource restoration at the Site; (b) the person has failed ta
comply with any information request or administrative subpoena issued pursuant to Section 104(e)
or 122(e) of CERCLA, 42 U.S.C. � 9604(e} or } 9622(e), or Sectian 3007 of RCRA, 42 U.S.C.
§ 6927; or (c) the person impeded or is impeding, through action ar inaction, the performance of a
response action or natural resource restoration with respect to the Site.
109. Claims A�ainst De Minimis and Abititv to Pav Parties. Settling Performing
Defendants agree not to assert any claims or causes of action and to waive all claims or causes af
action (including but not limited to claims or causes of action under Sections 107(a) and 113 of
CERCLA) that they may have for all matters relating to the Site against any person that has entered
or in the future enters into a final CERCLA Section 122{g} de minimis settlement or a final
settlement based on limited ability to pay, with EPA with respect to the Site. This waiver shall not
apply with respect to any defense, claim, or cause of action that a Settling Performing Defendant
may have agains# any person if such person asserts a claim or cause of action relating to the Site
against such Settling Performing Defendant.
92
XXIV. DE MINIMIS SETTLEMENT PROVISIONS
l 10. Covenants for Settlin�De Minimis Parties (Settlin�: De Minimis Defendants,
Settling De �Ylinimis State Agencies, and Settlin� I3e Minimis Federal A�encies) b ty he United
States and the State. In consideration of the payrnents that will be made by Settling De Minimis
Parties under the terms of this Consent Decree, and except as specifically provided in Paragraphs
111 and 112 {Reservations of Rights by United States and the State), the United States and the
State covenant not to sue or take administrative action against any of the Settling De Minimis
Parties pursuant to Sections 106 or 107 of CERCLA, 42 U.S.C. §§ 9606 or 9607, or with respect to
the State, pursuant to Code Sections 12-8-'71, 12-$-96, and 12-8-9b.1 of HSRA and Section 147(a)
of CERCLA, relating to the Site. With respect to present and future liability, these cavenants shall
take effect for each Settling De Minimis Party upon receipt of that Settling De Minimis Party's
payment as required by Section XVI (Payment for Response Costs). With respect to each Settling
De Minimis Party, individually, these covenants axe conditioned upon: (a) the satisfactory
performance by the Settling De Minimis Party of all obligations under this Consent Decree; and (b)
the veracity of the information pravided to EPA by the Settling De Minimis Party relating to the
Settling De Minimis Party's involvement with the Site. These covenants extend only to Settling De
Minimis Parties and do not extend to any other person.
111. General Reservations of Rig,hts as io Settlin De Minimis Parties (Settling, De
Minimis Defendants, Settlin� De Minimis State Ag,encies, and Settlin� Minimis Federal
A encies . The United States and the State reserve, and this Consent Decree is without prejudice
to, all rights against Settling De Minimis Defendants and Settling De Minimis State Agencies, and
EPA, the State, and the federal natural resaurce trustees reserve, and this Consent Decree is
without prejudice to, all rights against Settling De Minimis Federal Agencies, with respect to all
93
matters not expressly included within Section XXIV. Notwithstanding any other provision of this
Consent Decree, the United States and the State reserve all rights against Settling De Minimis
Defendants and Settling De Minimis State Agencies and EPA and the federal natural resource
trustees reserve, and this Consent Decree is without prejudice to, all rights against Settling De
Minimis Federal Agencies, with respect to:
(a) liability for failure to meet a requirement of this Consent Decree;
� (b) criminalliability;
(c) liability for damages for injury to, destruction ot; ar loss of natural
resources, and far the costs of any natural resource damage assessments;
(d) liability based on the ownership or operation of the Site by Settling De
Minimis Defendants, Settling De Minimis State Agencies, or Settling De
Minimis Federal Agencies; or
(e) liability based on Settling De Minrmis Defendants', Settling De tl�iinimis
State Agencies', ar Settling De Minimis Federal Agencies' transportation,
treatment, storage, or disposal, or the arrangement for the transportation,
treatment, storage, or disposal, of a hazardous substance or a solid waste at
or in connection with the Site, after signature of this Consent Decree by
Settling De Minimis Defendants, Settling De Minfmis State Agencies, or by
DOJ on behalf of Settling De Minimis Federal Agencies.
112. Notwithstanding any other provision in this Consent Decree, the United States and
the State reserve, and this Consent Decree is without prejudice to, the right #o institute proceedings
against any individual Set#ling De Minimis Defendant or Settling De Minimis State Agency in this
action or in a new action or to issue an administrative arder to any individual Settling De Minimis
94
Defendant or Settling De �inimis State Agency seeking to compel that Settling De Minimis
Defendant or Settling De Minimis State Agency, and EPA and the State reserve, and this Consent
Decree is without prejudice to, the right to issue an administra#ive order to any individual Settling
De Minimis Federal Agency, to perform response actions relating ta the Site, and/or to reimburse
the United States and the State for additional costs of response, if information is discovered that
indicates that such Settling De Minimis Party contributed hazardaus substances to the Site in such ,
greater amount or of such greater #oxic or other hazardous effects that such Settling De Minimis
Party no longer qualifies as a de minimis party at the Site because it no longer meets the criteria to
participate in the de minimis settlement, pursuant to Appendices C, D-2, E, and K.
113. Covenants bv the Settlin�De Minimis Defendants and Settling.De Minirnis State
A encies. Settling De Mznimis Defendants and Settling De Minimis State Agencies covenant not
to sue and agree not to assert any claims or causes of action against the United States, the State, or
their contractors or employees with respect ta the Site and this Consent Decree, including, but not
limited to:
(a) any direct or indirect claim for reimbursement from the EPA Hazardous
Substance Superfund based on Sections 106(b)(2) 107, 111, 112, or 113 of CERCLA, 42 U.S.C. §§
9606(b)(2), 9b07, 9611, 9612, or 9613, or any other provision of law;
(b) any claims arising out of response actions at or in connection with the Site,
including any ciaim under the United States Constitution, the Constitution of the State of Georgia,
the Tucker Act, 28 U.S.C. � 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended,
or at common law; and
95
(c) any claim against the United States pursuant to Sections 107 and 113 of
CERCLA, 42 U.S.C. §§ 9607 and 9613, RCRA Section 7002(a), 42 U.S.C. § 6972(a), or State law
regarding the Site.
Except as provided in Paragraph 116 (waiver of claims) and Paragraph 123 {waiver of
claim-splitting defenses), these covenants shall not apply in the event that the United States or the
State brings a cause of action or issues an order pursuant to any of the reservations set forth in
Paragraphs 111 and 112 (Reservations of Rights by United States and the State), other than in
Paragraph 1 ll(a) {claims for failure to meet a requirement of the Decree) or 111 {b) (criminal
liability), but only to the extent that Settling De Minimis Defendants or Settling De Minimis State
Agencies' claims arise from the same response action, response costs, or damages that the United
Sta#es or the State is seeking pursuant to the applicable reservation.
114. Covenant by Settling De Minimis Federal Agencies. Settling De Minimis Federal
Agencies agree not to assert any direct or indirect claim for reimbursement from the Hazardous
Substance Superfund (established pursuar�t to the Internal Revenue Code, 26 U.S.C. � 9547)
through CERCLA Sections 106(b)(2), 107, 111, 112, 113, or any other provision of law with
respect to the Site and this Consent Decree. This covenant does not preclude demand for
reimbursement from the Superfund of costs incurred by a Settling De Minimis Fecieral Agency in
the performance of its duties (other than pursuant to this Consent Decree) as lead or support agency
under the National Contin�,zency Plan (40 C.�.R. Part 300).
115. Nothing in this Consent Decree shall be deemed to constitute 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).
96
116. Settling De Minirrais Parties agree not to assert any claims and to waive all claims or
causes of action (including but not limited to claims or causes of action under Section 107(a) or
113 of CERCLA) that they may have for response costs relating to the Site against each other or
any other person who is a potentially responsible party under CERCLA at the Site. This waiver
shall not apply with respect to any defense, claim, or cause of action that a Settling De Minzmis
Party may have against any person if such person asserts ar has asserted a claim or cause of action
relating to the Site against such Settling De Minimis Party.
117. By signing this Consent Decree, each Settling De Minimis Defendant and Settling
De Minimis State Agency certifies, individually, that to the best of its knowledge and belief, it:
(a) has not altered, mutilated, discarded, destroyed, or otherwise disposeti of
any records, documents, or other information (other than identical copies) relating to its patential
liability regarding the Site after the earlier notification of potential liability or the filing of a suit
against it regarding the Site; and
(b} has and will comply fully with any and all EPA and State requests for
information regarding the Site pursuant to Sections 104(e) and 122(e) of CERCLA, 42 U.S.C. §§
9604(e) and 9622(e), Section 3007 of the RCR.A, 42 U.S.C. § 9627, and State law.
l 18. The United States acknowledges that each Settling De Minimrs Federal Agency
(a) is subjec# to all applicable Federal recard retention laws, regulations, and policies; and (b) has
certified that it has fully complied with any and all EPA and State requests for information
pursuant to Sections 104(e) and 122(e) of CERCLA, 42 U,S.C. §§ 9604(e) and 9622(e), and
Section 3007 of RCRA, 42 U.S.C. § 9627, and State law.
97
XXV. EFFECT OF SETTLEMENT; CONTRIBUTION
119. Except as provided in Paragraph 107 (Claims Against MSW Generators and
Transporters) and Paragraph 109 (Claims Against De Minimis/Ability to Pay Parties), nothing in
this Consent Decree shall be canstrued ta create any rights in, or grant any cause of action to, any
person not a Party to this Consent Decree. Except as provided in Paragraph 107 (Claims Against
MSW Generators and Transporters) and Paragraph 109 (Claims Against De Minimis/Ability to
Pay Parties), each of the Parties expressly reserves any and all rights {including, but not limited to,
pursuant to Section 113 of CERCLA, 42 U.S.C. � 9613), defenses, claims, demands, and causes of
action which each Pariy 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 Consent Decree
diminishes the right ofthe United States, pursuant ta Section 1 I3(�}(2) and (3) of CERCLA, 42
U.S.C. � 9613(fj(2)-(3), to pursue any such persons to obtain additional response costs or response
action and to enter into settlements that give rise to contribution protection pursuant to Section
113(�(2).
120. The Parties agree, and by entering this Consent Decree this Court finds, that this
Consent Decree constitutes a judicially-approved settlement for purposes of Section 113�fl{2} of
CERCLA, 42 U.S.C. § 9613(�(2), and that each Settling Defendant and each Settling Federal
Agency is entitled, as of the Effective Date, to protection from contribution actions or claims as
provided by Section 113{�(2) of CERCLA, or as may be otherwise provided by law, far "matters
addressed" in this Consent Decree. The "matters addressed" in this Consent Decree are all
response ac#ions taken or to be taken and alt response costs incurred or to be incuned, at or in
connectian with the Site, by the United States, the State, or any other person; provided, however,
that if the United States or the State exercise rights against Settling Performing Defendants {flr if
9$
EPA or the federal natural resource trustee or the State assert rights against Settling Federal
Agencies) under the reservations in Section XXII (Covenants by Plaintiffs), other than in
Paragraphs 98(a) (claims for failure ta meet a requirement of the Decree), 98(fl (criminal liability)
or 98{g) (violations of federal/state law during or after implementation of the Work), or if the
United States exercises rights against Settling De Minimis Parties under the reservations in
Paragaphs 111 and 112, other than in Paragraph I 11(a) {claims for failure to meet a requirement
of the Consent Decree) or 111(b) (criminal liability), the "matters addressed" in this Consent
Decree will no longer include those response costs or response actions that are within the scope of
the exercised reservation.
121. Each Settling Defendant shall, with respect to any suit or claim brought by it for
matters related to this Consent Decree, notify the United States and the State in writing no later
than 60 days prior to the initiation of such suit or claim.
122. Each Settling Defendant shall, with respect to any suit or claim brought against it
for matters related to this Consent Decree, notify in writing the United States and the State within
10 days of service of the complaint on such Settling Defendant. In addition, each Settling
Defendant shall notify the United States and the State within 10 days of service or receipt of any
Motion for Summary Judgmen# and within 14 days of receipt of any order from a court setting a
case for triaL
123. Res Judicata and Other Defenses. In any subsequent administrative or judicial
proceeding initiated by the United States or the State for injunctive relief, recovery of response
costs, or other appropriate relief relating ta the Si#e, Settling Defendants (and, with respect to a
State action, Settling Federal Agencies) shall not assert, and may not maintain, any defense or
claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-
99
splitting, or other defenses based upon any contention that the ciaims raised by the United States or
the State in the subsequent proceeding were or should have been brought in the instant case;
provided, however, that nothing in this Paragraph affects tl�e enforceability of the covenants not to
sue set forth in Section XXII {Covenants by Plaintiffs). �
XXVI. ACCESS TO INFORMATION
124. Settling Defendants shall provide to EPA and the State, 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 their poss�ession
or control or that of their contractors or agents relating to activities at the Site or to the
implementation of this Consent Decree, including, but not limited to, sampling, analysis, chain of
custody records, manifests, trucking logs, receipts, reports, sample traffic routing, correspondence,
or other documents or information regarding the Work, 5ettling Performing Defendants shall also
make available to EPA and the State, for purposes of investigation, infarrnation gathering, or
testimony, their employees, agents, or representatives with knowledge of relevant facts concerning
the performance af the Work.
125. Business Confidential and Privileged Documents.
{a) Settling Defendants may assert:business confidentiality claims covering part
or all of the Records submitted to Plaintiffs under #his Consent Decree to the extent permitted by
and in accordance with Section 104{e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R.
� 2.203(b). Records determined to be confidential by EPA will be afforded the protection
specified in 40 C.F.R. Part 2, Subpart B. If no claim of confiden#iality accompanies Records when
they are submitted to EPA and the State, ar if EPA has notified Settling Defendants that the
Records are not confidential under the standards of Section 104(e)(7) of CERCLA or 40 GF.R.
100
Part 2, Subpart B, the public may be given access to such Records without further notice to Settling
Defendants.
(b} Settling Defendants may assert that certain Records are privileged under the
attorney-client privilege or arty other privilege recognized by federal law. If Settling Defendants
assert such a privilege in lieu of providing Records, they shall provide Plaintiffs with the
following: (i) the title of the Record; (ii) the date of the Record; (iii) the name, title, affiliation
(e.g., company or firm), and address of the author of the Record; (iv) the name and title of each
addressee and recipient; (v) a description of the contents of the Record; and (vi) the privilege
asserted by Settling Defendants. If a claim of privilege applies only to a partion of a Record, the
Record shall be provided to the United States in redacted form to mask the privileged portion only.
Settling Defendants shall retain all Records that they claim to be privileged until the United States
has had a reasonable opportunity to dispute the privilege claim and any such dispute has been
resolved in the Settling Defendants' favor. �
(c) No Records created or generated pursuant to the requirements af this
Consent Decree shall be withheld from the United States or the State on the grounds that they are
privileged or confidential.
126. No claim of confidentiality or privilege shall be made with respect to any data,
inciuding, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific,
chemical, or engineering data, or any other documents or ir�formation evidencing conditions at or
around the Site.
XXVII. RETENTION OF RECORDS
127. Until seven years after Settling Performing Defendants' and Settling De Minimis
Defendants' receipt of EPA's notification pursuant to Paragraph 50(b} of Section XIV
101
(Certification of Completion of the Work), each Settling Performing Defendant and Settling De
lt�linimis Defendant shall preserve and retain all non-identical copies of Records (including Records
in electronic forrn) now in its possession or control or which come into its possession or control
that relate in any manner to its liability under CERCLA with respect to the Site, provided,
however, that Settling Performing Defendants and Settling De Minimis Defendants who are
potentially liable as owners or operators of the Site must retain, in addition, all Records that relate
to the liability of any other person under CERCLA with respect to the Site. Each Settling
Performing Defendant must also retain, and instruct its contractors and agents to preserve, for the
same period of time specified above all non-identical copies of the last draft or final version of any
Records (including Records in electronic form) now in its possession or control or which come into
its possession or control that relate in a.ny manner to the performance of the Work, provided,
however, that each Settling Performing Defendant (and its contractors and agents) must retain, in
addition, copies of a11 data generated during the performance of the Work and not eontained in the
aforementioned Records required to be retained. Each of the above record retention requirements
shall apply regardiess of any corporate retention policy to the contrary.
128. The United States acknowledges that each Settling Federal Agency (a) is subject to
all applicable Federal record retention laws, regulations, and policies; and (b) has certified that it
has fully complied with any and all EPA and State requests for inforrnation pursuant to Sections
� 104(e) and 122(e) of GERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section 300'7 of RCRA,
42 U.S.C. § 6927. The United States acknowledges that each Settling De Minimis State Agency is
subject to management of its records in accordance with the "Georgia Records Act," O.C.G.A. §§
50-18-19, et seq., �nd that the Settling De �inirrais State Agencies agree to comply with all
requirements for retention of records con#ained in the Act, or as otherwise required by law. If
i02
Settling De Minimis State Agencies are in possession of records that relate in any manner to their
liability under CERCLA with respect to the Site at the conclusion of the record retention period
provided for Settling Performing Defendants in Paragraph 127, Settling De Minimis State Agencies
shall deliver any such Records to EPA.
129. At the conclusion of this record retention period, Settiing Defendants shall notify
the United States and the State at least 90 days prior to the destruction of any such Records, and,
upon request by the United States or the State, Settling Defendants shall deliver any such Records
to EPA or the State. Settling Defendants may assert that certain Records are privileged under the
attorney-client privilege or any other privilege recognized by federal law. If Settling Defendants
assert such a privilege, they shall provide Plaintiffs with the following: (a) the title of the Record;
(b) the date of the Record; (c) the name, title, affiliation (e.g., company or firm), and address of the
author of the Recard; (d) the name and title of each addressee and recipient; {e} a description of the
subject of the Record; and ( fl the privilege asserted by Settling Defendants. If a claim of privilege
applies only to a portion of a Record, the Record shall be provided to the United States in redacted
form to mask the privileged portion only. Settling Defendants shall retain all Records that they
claim to be privileged un#il the United States has had a reasonable opportunity to dispute the
privilege claim and any such dispute has been resolved in the Settling Defendants' favor.
However, no Records created or generated pursuant to the rec�uirements of this Consent Decree
shall be withheld on the gounds that they are privileged or confidential.
130. Each Settling Performing Defendant and Settling Non-Performing Federal Agency
certifies individually that, to the best of its knowledge and belief, after thorough inquiry, it has not
al#ered, mutilated, discarded, destroyed or otherwise disposed of any Records (other than identical
copies) relating to its potential liability regarding the Site since the earlier of notification of
103
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 Sections
104(e) and 122(e) of CERCLA, 42 U.S.C. �§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42
U.S.C. � 6927.
XXVIII. NOTICES AND SUBMISSIONS
131. Whenever, under the tertns of this Consent Decree, written no#ice is required to he
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 ta the other Parties in writing. Any notice may be given by
electronic mail, courier, overnight mail, hand delivery, or by U.S. Mail. All notices and
submissions shall be considered effective upon receipt, unless otherwise provided. Written notice
as specified in this Section shall constitute cornplete satisfaction of any written notice requirement
of the Consent Decree with respect to the United States, EPA, Settling Federal Agencies, the State,
and Settling Defendants, respectively. Notices required to be sent to EPA, and not to the United
States, under the terms of this Consent Decree should not be sent to DOJ.
As to the United States: Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
� P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-11-3-10081
104
�nd: Chief, Environmental Defense Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 23986
Washington, D.C. 2Q026-3986
Re: DJ # 90-11-3 -10081
and: Director, Superfund Division
Uniteci States Environmental Protection Agency
Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303
As to EPA. Giezelle Bennett
EPA Project Goordinator
United S#ates Environmental Protection Agency
Region 4
61 Forsyth Stree#, S.W.
� Atlanta, Georgia 30303
henz�ett. �i ezei l e(u:;epa. ��
{404)562-8824
105
As to the Regional Financial Paula Painter
Management Officer: United States Environmental Protection Agency
Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303
��ainter.p�ula("ic;epa.�Y,�ov �
(404) 562-$8$7
As to the State: Amy Potter
State Project Coordinator
Land Protection Branch
Georgia Environmental Protection Division
4244 International Parkway
Atlanta, Georgia 30354 �
Amv. P�tter(iodnr.staie.�a.us
(404) 657-8b57
As to Settling Perforrning Defendants: Chet Tisdale and Amy Magee
Settling Performing Defendants' Counsel
King & Spalding LLP
1180 Peachtree Street NE
Atlanta, Georgia 3Q309
Ctisdalc{u� KS L� W.coin
Ama e�e(u.KSLAW.coin
(404) 572-4820
IOb
As to Settling De Minimis Barbara Gallo
Defendants: Settling De Minimis Defendants' Counsel
I�revolin Horst LLC
One Atlantic Center
' 1201 West Peachtree Street, NV�, Suite 3250
Atlanta, Geargia 30309
�a ll ��u�kh I a��� fi rm. com
(404) 8$8-0169
As to Settling Federal Agencies: Dustin J. Maghamfar
Trial Attorney
U.S. Department of Justice
Environmental Defense Section �
P. O. Box 23986
Washington, D.C. 20026-3986
Dustin. Ma�=hatnfar(�uusdoi �ov
(202) 514-1806
10?
As to Settling De Minimis State Nancy Gallagher
Agencies: Settling De Minimis State Agencies' Counsel
Georgia Department of Law
Division 02RCA
40 Capitol Square SW
Atlanta, Geargia 30334-1300
n�al ia�her�Ulativ. �,�a. �A,ov
(404) 651-5801
XXIX. RETENTION OF JURISDICTION
132. This Court retains jurisdiction over both the subject rnatter of this Consent Decree,
the United States, the State, and Settling Defendants for the duration of the performance of the
terms and pravisions of this Consent Decree for the purpose of enabling any of #he Parties to apply
to the Court at any time for such further order, direction, and relief as may be necessary or
appropriate for the construction or modification of this Consent Decree, or to effectuate or enforce
compliance with its terms, or #o resolve disputes in accordance with Section XX (Dispute
Resolution).
�XX. APPENDICES
133. The following appendices are attached to and incorporated into this Consent
Decree:
. "Appendix A" is the list of Settling Defendants.
"Appendix B" is the list of Settling Performing Defendants.
"Appendix C" is the Cost Matrix for the Settling De Minimis Defendants.
108
"Appendix D-i" is the list of the Settling Non-Performing Federal Agencies.
"Appendix D-2" is the Cost Matrix for the Settling De Minimis Federal Agencies.
"Appendix E" is the Cost Matrix for the Settling De Minimis State Agencies.
"Appendix F" is the map of the Site.
"Appendix G" is the ROD.
"Appendix H" is the SOW.
"Appendix I" are the Performance Guarantee forms.
"Appendix J" are the Proprietary Controls.
"Appendix K" is the list of criteria established by EPA to qualify for de minimis PRP
status at this Site.
x:XXI. COMMUNITY RELATIONS
134. If requested by EPA or the State, Settling Performing Defendants shall participate in
community relations activities pursuant to the community relations plan to be developed by EPA.
EPA will deterrnine the appropriate role for Settling Performing Defendants under the Plan.
Settling Perforrning Defendants shall also cooperate with EPA and the State in providing
information regarding the Work to the public. As requested by EPA or the Sta#e, Settling
Performing Defendants 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 #he State to explain
activities at or relating to the Site. Costs incurred by the United States under this Section,
including the costs of any technical assistance grant under Section 117(e) of CERCLA, 42 U.S.C. §
9b17(e), shall be considered Future Response Costs that Settling Defendants shall pay pursuant to
Section XVI {Payments for Response Costs).
109
XXXII. MODIFICATION
135. Schedules specified in this Consent Decree for cornpletion of the Work may be
modified by agreement of the EPA Project Coordinator and the Settling Performing Defendants.
All such madifications shall be made in writing.
136. Modifications (non-material or material) that do not affect the obligations
of or the protections afforded to Settling De Minimis Parties rnay be executed without the
signatures of the Settling De Minrmis Parties.
137. Except as provided in Paragraph 13 (Modification of SOW or Related Work Plans),
rnaterial modifications to this Consent Decree, including the SOW, shall be in writing, signed by
the United States and Settling Performing Defendants, and shall be effective upon approval by the
Court. Except as provided in Paragaph 13 (Modification of SOW or Related Work Plans), nan-
material modifications to this Consent Decree, including the SOW, shall be in writing and shall be
effective when signed by duly authorized representatives of the United States and Settling
Performing Defendants. All modifications to the Consent Decree, other than the SOW, also shall
be signed by the State, or a duly authorized representative of the State, as appropriate. A
modification to the SOW shall be considered material if it fundamentally alters the basic features
of the selected remedy within the meaning of 40 C.F.R. § 300.435(c)(2)(ii). Before providing its
' approval to any modification to the SOW, the United States will provide the State with a
reasonable opportunity to review and comment on the proposed modification.
138. Nothing in this Consent Decree shall be deemed to alter the Court's power ta
enforce, supervise or approve rnodifications tn this Consent Decree.
110
XXXIIL LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
139. This Consent Decree shall be lodged with the Court for a period of not less than 30
days for public notice and comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.
� 9622(d)(2), and 28 C.F.R. � 50.7. The United States reserves the right to withdraw or withhold
its consent if the comments regarding the Consent Decree disclose facts or considerations which
indicate that the Gonsent Decree is inappropriate, improper, or inadeyuate. Settling Defendants
consent to the entry of this Consent Decree without further notice.
140. If for any reason the Court should decline to approve this Consent Decree in the
form presented, this agreement is voidable at the sole discretion of any Party and the terms of the
agreement may not be used as evidence in any litigation between the Parties.
XXXIV. SIGNATORIES/SERVICE
141. Each undersigned representative of a Settling Defendant to this Consent Decree and
the Assistant Attorney General for the Environment and Natural Resources Division of the
Department of Justice and the Director of the Georgia Environmental Protection Division for the
State certifies that he or she is fully authorized to enter into the terms and conditions of this
Consent Decree and to execute and legally bind such Party to this document.
142. Each Settling Defendant agrees not to oppose entry of this Consent Decree by this
Court or to challenge any provision of this Consent Decree unless the United States has notified
Settling Defendants in writing that it no longer supports entry af the Consent Decree.
143. Each Settling Defendant shali identify, on the attached signature page, the name,
address and telephone number of an agent who is authorized to accept service of process by mail
on behalf of that Party with respect to all matters arising under or relating to this Consent Decree.
Settling Defendants agree to accept service in that manner and to waive the formal service
111
requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local
rules of this Court, including, but nat limited to, service of a summons. Settling Defendants need
not file an answer to the complaint in this action unless or until the Court expressly declines to
enter this Consent Decree.
XXXV. FINAL JUDGMENT
144. This Consent Decree and its appendices constitute the final, complete, and
exclusive agreement and understanding among the Parties regarding the settlement erntiodied in the
Consent Decree. The Parties acknowledge that there are no representations, agreements or
understandings relating to the settlement other than those expressly contained in #his Consent
Decree.
145. Upon entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment between and arnong the United States, the State, and Settling
Defendants. The Court finds that there is no just reason for delay and, therefore, enters this
judgment as a final judgment under Fed. R. Civ. P. 54 and 58.
SO ORDERED THIS _ DAY OF , 241 l.
United States District Judge
112
United States of America and State of Georgia v. Settling Defendants
Alternate Energy Resources, Inc. Superfund Site
DOJ Case Number 90-11-3-10081
FOR THE UNITED STATE5 OF AMERICA:
Date Ignacia S. Moreno
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
Date Esperanza Anderson
Trial Attomey
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Date Dustin Maghamfar
Environmental Defense Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 239$6
Washington, D.C. 20026-3986
Date Edward J. Tarver
Assistant United Sta#es Attorney
Southern District of Georgia
United States Attorney's Office
100 Bull Street, 2"� Floor
Savannah, Georgia 31401
� 113
United States of America and State of Georgia v. Settling Defendants
Alternate Energy Resources, lnc. Superfund Site
DOJ Case Number 90-11-3-10081
Date Franklin E. Hill, Director
Superfund Division
U.S. Environmental Protection Agency
Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303
Date Kavita K. Batra
Associate Regional Counsel
U.S. Environmental Protection Agency
Region 4
61 Forsyth Street, S.W.
Atlanta, Georgia 30303
114
United States of America and State of Georgia v. Settling Defendants
Alternate Energy Resaurces, Inc. Superfund Site
DOJ Case Number 90-11-3-10081
FOR THE STATE OF GEORGIA
Date F. Allen Barnes
Director
Georgia Environmental Protection Division
2 Martin Luther King Jr. Drive
Suite 1152, East Tower
Atlanta, Georgia 30334
115
United States of America and State of Georgia v. Settling Defendants
Alternate Energy Resources, Inc. Superfund Site
DOJ Case Number 90- l 1-3-10081
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Alternate Energy Resources, lnc. Superiund Site
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