UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

US. DISTRICT COURT

EASTERN DISTRICT AR

UNJ.fi 1994

UNITED STATES OF AMERICA

Plaintiff,

v.

CITY OF JACKSONVILLE,

Defendant.

CIVIL ACTION NO

LR-C-94-196

ORDER

WHEREFORE, upon the Motion of Plaintiff, the United States

of America, for Entry of the proposed Consent Decrees between the

United States and the City of Jacksonville, Arkansas, it is this

June ,'

day of Jfey-1994,

ORDERED that the United States' Motion be and is hereby

GRANTED. ^ ^ ^ —

TA*TES DISTRICT

THIS DOCUMENT ENTERED ON

146543

DOCKET SHEET IN COMPLIANC

WITH RULE 53AWB/OR 79{a) FRCP

001131
IN TEE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES 07 AMERICA

Plaintiff,

v.

CITY OF JACKSONVILLE,

Defendant.

U.SPILE . DISTRICT COUM D - EASTERN DISTRICT ARKANSAS JUN 1 i m

JAMES W. McCUHMACK, CLERK

By.——————.——————_ DEP CLERK

CIVIL jto-rxOir~NO.

94-19 6

CONSENT DECREE

001132
JACKSONVILLE MUNICIPAL LANDFILL SUPERFUND SITE

JACKSONVILLE, ARKANSAS

' RD/RA CONSENT DECREE

TABLE 07 CONTENTS

Paga

I . BACKGROUND ..................... . 1

II . JURISDICTION .................... . 4

III. PARTIES BOUND .................... . 4

IV. DEFINITIONS ..................... . 5

V. GENERAL PROVISIONS ................. . 10

VI. PERFORMANCE OF THE WORK BY SETTLING DEFENPANT .... . 13

VII. ADDITIONAL RESPONSE ACTIONS ............. . 18

VIII. U.S. EPA PERIODIC REVIEW .............. . 20

IX. QUALITY ASSURANCE. SAMPLING, and DATA ANALYSIS ... . 21

X . ACCESS ........... . ' j .......... . 2 4

XI . REPORTING REQUIREMENTS ............... . 26

XII. SUBMISSIONS REQUIRING AGENCY APPROVAL ........ . 28

XIII. PROJECT COORDINATORS ................ . 31

XIV. . ASSURANCE OF ABILITY TO COMPLETE WORK ........ . 33

XV. CERTIFICATION OF COMPLETION ............. . 34

XVI. EMERGENCY RESPONSE ................. . 38

XVII. REIMBURSEMENT OF RESPONSE COSTS ........... . 39

XVIII. INDEMNIFICATION AND INSURANCE ............ . 43

XIX. FORCE MAJEURE .................... . 46

XX. DISPUTE RESOLUTION ................. . 49

XXI. STIPULATED PENALTIES ................ . 54

XXII. COVENANTS NOT TO SUE BY PLAINTIFF .......... . 60

001133
TABLE OF CONTENTS (cont'd)

' Pag

XXIII. COVENANTS BY SETTLING DEFENDANT ........... . 64

XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION .... . 65

I

XXV. ACCESS TO INFORMATION ................ . 67

XXVI, RETENTION OF RECORDS ................ . 69

XXVII. NOTICES AND SUBMISSIONS ............... . 71

XXVIII. EFFECTIVE DATE ................... . 72

XXIX. RETENTION OF JURISDICTION .............. . 72

XXX. APPENDICES ..................... . 73

XXXI. COMMUNITY RELATIONS ................. . 73

XXXII. MODIFICATION .................... . 73

XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ..... . 74

XXXIV. SIGNATORIES/SERVICE ..... . ' L .......... . 75

ii

001134
IH THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA

Plaintiff,

v.

CITY OF JACKSONVILLE,

Defendant.

CIVIL ACTION NO,

CONSENT DECREE

I. BACKGROUND

A. The united Stated of America ("United States"), on behalf

of the Administrator of the United States Environmental Protection

Agency ("EPA"), filed a complaint in thig matter pursuant to

Sections 106 and 107 of the Comprehensive Environmental Response,

Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §S 9606,

9607.

B. The United States in its complaint seeks, inter alia:

(1) reimbursement of costs incurred by EPA and the Department of

Justice for response actions at the Jacksonville Municipal Landfill

Superfund Site in Lonoke County, Arkansas, together with accrued

interest; and (2) performance of studies and response work by the

Defendant at the Site consistent with the National Oil and

Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300

(as amended) ( M NCP") .

C. In accordance with the NCP and Section 121(f)(1)(F) of

CERCLA, 42 U.S.C. § 9621(f)(1)(F) , EPA notified the State of

001135
Arkansas (the "State") on December 7, 1990 of negotiations with

potentially responsible parties regarding the implementation of the

remedial design and remedial action for the Site, and EPA has

provided the State with an opportunity to participate in such

negotiations and be a party to this Consent Decree.

D. In accordance with Section 122(j)(l ) of CERCLA, 42 U.S.C.

S 9622(j)(l) , EPA notified the U.S. Department of the Interior,

Office of Environmental Project Review, on January 17, 1991 of

negotiations with potentially responsible parties regarding the

release of hazardous substances that may have resulted in injury to

the natural resources under Federal trusteeship and encouraged the

trustee to participate in the negotiation of this Consent Decree.

E. The Defendant that has entered into this Consent Decree

("Settling Defendant") does not admit any, liability to the

Plaintiff arising out of the transactions or occurrences alleged in

the complaint.

V 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 July 22, 1987, 52 Fed. Reg. 27620, 27623;

G. In response to a release or a substantial threat of a

release of a hazardous substance(s) at or from the Site, EPA

commenced on April 15, 1988, a Remedial Investigation and

Feasibility Study ("RI/FS") for the Site pursuant to 40 C.F.R.

S 300.430 ;

001136
H. EPA completed a Remedial Investigation ("RI") Report in

June 1990, and EPA completed a Feasibility Study ("FS") Report in

June 1990;

I. Pursuant to Section 117 of CERCLA, 42 U.S.C. S 9617, EPA

i

published notice of the completion of the FS and of the proposed

plan for remedial action in July 1990, in a major local newspaper

of general circulation. EPA provided an opportunity for written

and oral comments from the public on the proposed plan for remedial

action. A copy of the transcript of the public meeting is

available to the public as part of the administrative record upon

which the Regional Administrator based the selection of the

response action.

J. The decision by EPA on the remedial action to be

implemented at the Site is embodied in a final Record of Decision

("ROD"), executed on September 27, 1990, on which the State has

given its concurrence. The ROD includes a responsiveness summary

to the public comments. Notice of the final plan was published in

accordance with Section 117(b) of CERCLA.

K. Based on the information presently available to EPA, EPA

believes that the Work will be properly and promptly conducted by

the Settling Defendant if conducted in accordance with the

requirements of this Consent Decree and its appendices.

L. Solely for the purposes of Section 113(j ) of CERCLA, the

Remedial Action selected by the ROD and the Work to be performed by

the Settling Defendant shall constitute a response action taken or

ordered by the President.

001137
M. The Parties recognize, 'and the Court by entering this

Consent Decree finds, that this Consent Decree has been negotiated

by the Parties in good faith and implementation of this Consent

Decree will expedite the cleanup of the Site and will avoid

•

prolonged and complicated litigation between the Parties, and that

this Consent Decree is fair, reasonable, and in the public

interest.

NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of

this action pursuant to 28 U.S.C. §S 1331 and 1345, and 42 U.S.C.

SS 9606, 9607, and 9613(b) . This Court also has personal

jurisdiction over the Settling Defendant. Solely for the purposes

of this Consent Decree and the underlying complaint, Settling

Defendant waives all objections and defenses that it may have to

jurisdiction of the Court or to venue in this District. Settling

Defendant shall not challenge the terms of this Consent Decree or

this Court's jurisdiction to enter and enforce this Consent Decree.

III. PARTIES BOUND

2. This Consent Decree applies to and is binding upon the

United States and upon Settling Defendant and its agents,

successors and assigns. Any change in ownership or corporate

status of the Settling Defendant including, but not limited to, any

transfer of assets or real or personal property shall in no way

001138
alter Settling Defendant's responsibilities under this Consent

Decree.

3. Settling Defendant shall provide a copy of this Consent

i

Decree to each contractor hired to perform the Work (as defined

below) required by this Consent Decree and to each person

representing Settling Defendant with respect to the Site or the

Work and shall condition all contracts entered into hereunder upon

performance of the Work in conformity with the terms of this

Consent Decree. Settling Defendant or its contractors shall

provide written notice of the Consent Decree to all subcontractors

hired to perform any portion of the Work required by this consent

Decree. Settling Defendant shall nonetheless be responsible for

ensuring that its contractors and subcontractors perform the Work

contemplated herein in accordance with this Consent Decree. With

regard to the activities undertaken pursuant to this Consent

Decree, each contractor and subcontractor shall be deemed to be in

a contractual relationship with the Settling Defendant within the

meaning of Section 107(b)(3) of CERCIA, 42 U.S.C. § 9607(b)(3) .

IV. DEFINITIONS

4. Unless otherwise expressly provided herein, terms used in

this Consent Decree which 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

001139
used in this Consent Decree or in the appendices attached hereto

and'incorporated hereunder, the following definitions shall apply:

"CERdA" shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, 42 U.S.C.

SS 9601 fit sea.

"Consent Decree" shall mean this Decree and all appendices

attached hereto (listed in Section XXX). In the event of conflict

between this Decree and any appendix, this Decree shall control.

"Day" shall mean a calendar day unless expressly stated to be

a working day. "Working day" shall mean a day other than a

Saturday, Sunday, or Federal holiday. In computing any period of

time under this Consent Decree, where the last day would fall on a

Saturday, Sunday, or Federal holiday, the period shall run until

the close of business of the next working day.

"EPA" shall mean the United States Environmental Protection

Agency and any successor departments or agencies of the United

States.

"ADPC&E" shall mean the Arkansas Department of Pollution

Control and Ecology and any successor departments or agencies of

the state.

"Future Response Costs" shall mean all costs, including, but

not limited to, indirect costs, that the United States or the

Settling Defendant incur in reviewing or developing plans, reports

and other items pursuant to this consent Decree, performing the

work, verifying the Work, or otherwise implementing, overseeing, or

enforcing this Consent Decree, including, but not limited to,

001140
payroll costs, contractor costs, travel costs, laboratory costs,

the'costs incurred pursuant to Sections VII, VIII, X (including,

but not limited to, attorneys fees and the amount of just

compensation), XVI, and Paragraph 85 of Section XXII. The intent

i

of the parties with respect to responsibility for Future Response

Costs is reflected in Paragraph 52, Section XVII.

"Matters Addressed in this Consent Decree11 shall mean

liability under CERCLA sections 106 and 107, 42 D.S.C. SS 9606,

9607, and RCRA section 7003, 42 U.S.C. § 6973, for all response

costs (as response is defined in section 101 of CERCLA, 42 U.S.C.

S 9601) incurred in connection with the Site by any party, and any

and all past, present, and future response actions taken in

connection with the Site by any party.

"National Contingency Plan11 or "NCtf" 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 40

C.F.R. Part 300, including, but not limited to, any amendments

thereto.

"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 developed by EPA pursuant to this Consent Decree and

the Statement of Work (SOW) .

"Paragraph" shall mean a portion of this Consent Decree

identified by an arabic numeral or an upper case letter.

001141
"Parties" shall mean the United States and the Settling

Defendant.

"Past Response Costs11 shall mean all costs, including, but not

limited to, interest and indirect costs, that the United States

i

incurred with regard to the Site prior to the effective date of

this Consent Decree.

"Performance Requirements" shall mean those cleanup standards,

standards of control, and other substantive requirements, criteria

or limitations set forth in the ROD and Section I.D. of the SOW.

"Plaintiff" shall mean the United States.

"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42

U.S.C. SS 6901 et sea, (also known as the Resource Conservation and

Recovery Act).

"Record of Decision" or "ROD" shal'l mean the EPA Record of

Decision relating to the Site signed on September 27, 1990, by the

Regional Administrator, EPA Region 6, and all attachments thereto.

V

"Remedial Action" shall mean those activities, except for

Operation and Maintenance, to be undertaken by the Settling

Defendant to implement the Performance Requirements as stated in

the SOW and the Remedial Action specifications incorporated into

the Remedial Action Work Plan pursuant to Paragraph I.E. of the

SOW.

"Remedial Action Work Plan" shall mean the document submitted

by the Settling Defendant pursuant to Paragraph 12.a of this

Consent Decree and described more fully in Paragraph 12.b.

001142
"Remedial Design" shall mean those activities undertaken to

develop the final plans and specifications for the Remedial Action.

"Section1 shall mean a portion of this Consent Decree

identified by a roman numeral.

i

"Settling Defendant11 shall mean the City of Jacksonville,

Arkansas, a municipal corporation organized under the lavs of the

State of Arkansas.

"Site" shall mean the Jacksonville Municipal Landfill

Superfund site, encompassing approximately 40 acres, located in

Lonoke County, Arkansas and depicted generally on the map attached

as Appendix C. For the purpose of the Remedial Action and this

Consent Decree, and for the purpose of CERCLA § 121(e), 42 U.S.C.

S 9621(e) and SS 300.5 and 300.400(e ) of the NCP, pursuant to

CERCLA S 104(d)(4) , 42 U.S.C. § 9604(d)(4) , and the Record of

Decision, the term "Site" shall also include those portions of the

Vertac Chemical Corporation Superfund site necessary to implement

the Remedial Action.

"State" shall mean the State of Arkansas.

"Statement of Work" or "SOW" shall mean the statement of work

for implementation of the Remedial Action, and Operation and

Maintenance at the site, as set forth in Appendix B to this Consent

Decree, and any modifications to it made in accordance with this

Consent Decree. The Statement of Work does not include activities

to be performed by EPA.

001143
"Supervising Contractor" shall mean the principal contractor

retrained by the Settling Defendant to supervise and direct the

implementation of the Work under this Consent Decree.

"United States" shall mean the United states of America.

"Waste Material" shall mean (1) any "hazardous substance"

under Section 101(14) of CERCLA, 42 U.S.C. S 9601(14) ; (2) any

pollutant or contaminant under Section 101(33) , 42 U.S.C.

S 9601(33) ; and (3) any "solid waste" under Section 1004(27) of

RCRA, 42 U.S.C. S 6903(27) .

"Work" shall mean all activities the Settling Defendant is

required to perform under this Consent Decree, except those

required by Section XXVI (Retention of Records).

V. GENERAL PROVISIONS

5. Objectives of the Parties

The objectives of the Parties in entering into this consent

Decree are to protect public health or welfare or the environment

at the Site by the design and implementation of response actions at

the Site by the Settling Defendant and EPA and to reimburse

response costs of the Plaintiff, to resolve the claims of the

Plaintiff against the Settling Defendant, and to provide the

Settling Defendant contribution protection to the maximum extent

allowed under Section 113(f) of CERCLA.

10

001144
6. (VjnTmj.tmen'ts bv Settling Defendant

' Settling Defendant shall finance and perform the Work in

accordance with this Consent Decree and all plans, standards,

specifications, and schedules set forth in or developed and

approved by EPA pursuant to this Consent Decree. Settling

Defendant shall also reimburse the United States for Past Response

Costs and Future Response Costs as provided in this Consent Decree.

7. Compliance With Applicable Law

All activities undertaken by the Settling Defendant pursuant

to this Consent Decree shall be performed in accordance with the

requirements of all applicable federal and state laws and

regulations. The Settling Defendant must also comply 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 activities conducted pursuant to this Consent Decree, if

approved by EPA, shall be considered to be consistent with the NCP.

8. Permits

a. As provided in Section 121(e) of CERCLA and § 300.5

of the NCP, no permit shall be required for any portion of the Work

conducted entirely on the Site. Where any portion of the Work

requires a federal or state permit or approval, the Settling

Defendant shall submit timely and complete applications and take

all other actions necessary to obtain all such permits or

approvals.

 11

001145
b. The Settling Defendant may seek relief under the

provisions of Section XIX (Force Majeure) of this Consent Decree

for any delay in the performance of the Work resulting from a

failure to obtain, or a delay in obtaining, any permit required for

i

the Work.

c. This Consent Decree is not, and shall not be

construed to be, a permit issued pursuant to any federal or state

statute or regulation.

9. Notice of Obligations to Successors—in—Title

a. Within 15 days after the entry of this Consent

Decree, the Settling Defendant shall record a certified copy of

this Consent Decree with the Recorder's Office or Registry of Deeds

or other appropriate office, Pulaski and; Lonoke Counties, State of

Arkansas. Thereafter, each deed, title, or other instrument

conveying an interest in the property included in the Site shall

contain a notice stating that the property is subject to this

Consent Decree and shall reference the recorded location of the

Consent Decree and any restrictions applicable to the property

under this Consent Decree.

b. The obligations of the Settling Defendant with

respect to the provision of access under Section X (Access) shall

be binding upon the Settling Defendant and any and all persons who

subsequently acquire any such interest or portion thereof

(hereinafter "Successors-in-Title"). Within 15 days after the

entry of this Consent Decree, the Settling Defendant shall record

12

001146
at the Registry of Deeds, or other office where land ownership and

transfer records are maintained for the property, a notice of

obligation to provide access under Section X (Access) and related

covenants. Each subsequent deed to any such property included in

the Site shall reference the recorded location of such notice and

covenants applicable to the property.

c. The Settling Defendant and any successor-in-Title

shall, at least 30 days prior to the conveyance of any such

interest, give written notice of this Consent Decree to the grantee

and written notice to EPA of the proposed conveyance, including the

name and address of the grantee, and the date on which notice of

the Consent Decree was given to the grantee. In the event of any

such conveyance, the Settling Defendant's obligations under this

Consent Decree, including their obligations to provide or secure

access pursuant to Section X, shall continue to be met by the

Settling Defendant. In addition, if the United States approves,

the grantee may perform some or all of the Work under this Consent

Decree. In no event shall the conveyance of an interest in

property that includes, or is a portion of, the Site release or

otherwise affect the liability of the Settling Defendant to comply

with the Consent Decree.

VI. PERFORMANCE Of THE WORK BY SETTLING DEPENDANT

10. Selection of Supervising Contractor.

a. All aspects of the Work to be performed by the

Settling Defendant pursuant to Sections VI (Performance of the Work

13

001147
by Settling Defendant), VII (Additional Response Actions), VIII

(U.'s. EPA Periodic Review), and IX (Quality Assurance, Sampling and

Data Analysis) of this Consent Decree shall be under the direction

and supervision of the Supervising Contractor, the selection of

i

which shall be subject to disapproval by EPA. Within 10 days after

the lodging of this Consent Decree, Settling Defendant shall notify

EPA in writing of the name, title, and qualifications of any

contractor proposed to be the Supervising contractor. EPA will

issue a notice of disapproval or an authorization to proceed. If

at any time thereafter, t**e Settling Defendant proposes to change a

Supervising Contractor, Settling Defendant shall give such notice

to EPA and must obtain an authorization to proceed from EPA before

the new Supervising Contractor performs, directs, or supervises any

Work under this Consent Decree. '!

b. If EPA disapproves a proposed Supervising Contractor,

EPA will notify the Settling Defendant in writing. Settling

V Defendant shall submit to EPA a list of contractors, including the

qualifications of each contractor, that would be acceptable to it

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 to any of the other contractors. Settling

Defendant may select any contractor from that list that is not

disapproved and shall notify EPA of the name of the contractor

selected within 21 days of EPA's authorization to proceed.

14

001148
c. If EPA fails to provide written notice of its

authorization to proceed or disapproval as provided in this

Paragraph and this failure prevents the Settling Defendant from

meeting one or more deadlines in a plan approved by the EPA

pursuant to this Consent Decree, Settling Defendant may seek relief

under the provisions of Section XIX (Force Majeure) hereof.

11. Remedial Design.

Within 30 days after the effective date of this Consent

Decree, EPA will provide to the Settling Defendant the

specifications necessary to complete the Remedial Action, which

specifications the Settling Defendant shall incorporate into the

Remedial Action Work Plan required by Paragraph 12.

1 1

12. Remedial Action.

a. Within 30 days after the Settling Defendant receives

V

the specifications from EPA pursuant to Paragraph 11, the Settling

Defendant shall submit to EPA and the State, a work plan for the

performance of the Remedial Action at the Site ("Remedial Action

Work Plan"). The Remedial Action Work Plan shall provide for

construction of the remedy, in accordance with the SOW and the

specifications. The Parties agree that the Remedial Action Work

Plan shall only cover those activities to be performed by the

Settling Defendant, and will not address those activities to be

performed by EPA. Upon its approval by EPA, the Remedial Action

Work Plan shall be incorporated into and become enforceable under

15

001149
this Consent Decree. At the same time as it submits the Remedial

Action Work Plan, Settling Defendant shall submit to EPA and the

State a Health and Safety Plan for field activities required by the

Remedial Action Work Plan which conforms to the applicable

Occupational Safety and Health Administration and EPA requirements

including, but not limited to, 29 C.F.R. S 1910.120.

b. The Remedial Action Work Plan shall include the

following: (1) the schedule for completion of the Remedial Action;

(2) method for selection of the contractor; (3) schedule for

developing and submitting other required Remedial Action plans; (4)

methodology for implementation of the Construction Quality

Assurance Project Plan; (5) a groundwater monitoring plan; (6)

methods for satisfying permitting requirements; (7) methodology for

i

implementation of the Operation and Maintenance Plan; (8)

methodology for implementation of the Contingency Plan;

(9) tentative formulation of the Remedial Action team; (10)

v

construction quality control plan (by constructor); and (11)

procedures and plans for the decontamination of equipment and the

disposal of contaminated materials. The Remedial Action Work Plan

also shall include a schedule for implementation of all Remedial

Action tasks identified in the specifications and shall identify

the initial formulation of the Settling Defendant's Remedial Action

Project Team (including, but not limited to, the Supervising

Contractor).

c. Upon approval of the Remedial Action Work Plan by

EPA, after a reasonable opportunity for review and comment by the

16

001150
State, the Settling Defendant shall implement the activities

required under the Remedial Action Work Plan. The Settling

Defendant shall submit all plans, submittals, or other deliverables

required under the approved Remedial Action Work Plan in accordance

r

with the approved schedule for review and approval pursuant to

Section XII (Submissions Requiring Agency Approval). Unless

otherwise directed by EPA, Settling Defendant shall not commence

physical on-site activities at the Site prior to approval of the

Remedial Action Work Plan.

13. The Work performed by the Settling Defendant pursuant to

this consent Decree shall include the obligation to achieve the

Performance Requirements.

i •

14. Settling Defendant acknowledges and agrees that nothing

in this Consent Decree, the SOW, or the Remedial Action Work Plan

v

constitutes a warranty or representation of any kind by Plaintiff

that compliance with the work requirements set forth in the SOW and

the Work Plan will achieve the Performance Requirements. Settling

Defendant's compliance with the work requirements shall not

foreclose Plaintiff from seeking compliance with all terms and

conditions of this Consent Decree, including, but not limited to,

the applicable Performance Requirements. EPA acknowledges that,

pursuant to Paragraph 11, it is providing the specifications for

the Remedial Action as set forth in the ROD and the SOW which the

17

001151
Settling Defendant will incorporate into the Remedial Action Work

t Plan pursuant to Paragraph 12.

15. The EPA shall, prior to any off-Site shipment of Waste

i

Material from the Site to an out-of-state waste management

facility, provide written notification to the appropriate state

environmental official in the receiving facility's state of such

shipment of Waste Material. However, this notification requirement

shall not apply to any off-Site shipments when the total volume of

all such shipments will not exceed 10 cubic yards.

a. EPA shall include in the written notification the

following information, where available: (1) the name and location

of the facility to which the Waste Material are to be shipped; (2)

4

the type and quantity of the Waste Material to be shipped; (3) the

expected schedule for the shipment of the Waste Material; and (4)

the method of transportation. EPA shall notify the state in which

V

the planned receiving facility is located of major changes in the

shipment plan, such as a decision to ship the Waste Material to

another facility within the same state, or to a facility in another

state.

b. The identity of the receiving facility and state will

be determined by EPA following the award of the contract for

Remedial Action construction. EPA shall provide the information

required by Paragraph 15.a as soon as practicable after the award

of the contract and before the Waste Material is actually shipped.

18

001152
VII. ADDITIONAL RB8PON8B ACTIONS

i

16. In the event that EPA determines or the Settling

Defendant proposes that additional response actions involving nonhazardous work are necessary to meet the Performance Requirements

or to carry out the remedy selected in the ROD, notification of

such additional response actions shall be provided to the Project

Coordinator for the other party.

17. Within 30 days of receipt of notice from EPA or Settling

Defendant pursuant to Paragraph 16 that additional response actions

are necessary (or such longer time as may be specified by EPA), the

Settling Defendant shall submit for approval by EPA, after

reasonable opportunity for review and comment by the state, a work

plan for the additional response actions. The plan shall conform

to the applicable requirements of Paragraphs 11 and 12. Upon

approval of the plan pursuant to Section XII (Submissions Requiring

v Agency Approval), Settling Defendant shall implement the plan for

additional response actions in accordance with the schedule

contained therein.

18. Any additional response actions that the Settling

Defendant determines are necessary to meet the Performance

Requirements or to carry out the remedy selected in the ROD shall

be subject to approval by EPA, after reasonable opportunity for

review and comment by the State, arc*, if authorized by EPA, shall

be completed by the Settling Defendant in accordance with plans,

19

001153
specifications, and schedules approved by EPA pursuant to Section

i XII (Submissions Requiring Agency Approval).

19. The Settling Defendant may invoke the procedures set

forth in Section XX (Dispute Resolution) to dispute EPA's

determination that additional response actions are necessary to

meet the Performance Requirements or to carry out the remedy

selected in the ROD. Such a dispute shall be resolved pursuant to

Paragraphs 62-65 of this Consent Decree.

VTII. U.S. EPA PERIODIC REVIEW

20. Settling Defendant shall conduct any studies and

investigations as requested by EPA in order to permit EPA to

i • conduct reviews at least every five years as required by Section

121(c) of CERCLA and any applicable regulations.

v

21. If required by Sections 113(k)(2) or 117 of CERCLA,

Settling Defendant and 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(c)

of CERCLA and to submit written comments for the record during the

public comment period. After the period for submission of written

comments is closed, the Regional Administrator, EPA Region 6,' or

his/her delegate will determine in writing whether further response

actions are appropriate.

20

001154
22. If the Regional Administrator, EPA Region 6, or his/her

i

delegate determines that information received, in whole or in part,

during the review conducted pursuant to Section 121(c) of CERCLA,

indicates that the Remedial Action is not protective of human

t

health and the environment, the Settling Defendant shall undertake

any further response actions EPA has determined are appropriate,

unless their liability for such further response actions is barred

by the Covenant Not to Sue set forth in Section XXII. Settling

Defendant shall submit a plan for such work to EPA for approval in

accordance with the procedures set forth in Section VI (Performance

of the Work by Settling Defendant) and shall implement the plan

approved by EPA. However, the Settling Defendant may invoke the

procedures set forth in Section XX (Dispute Resolution) to dispute

(1) EPA's determination that the remedia'l action is not protective

of human health and the environment, (2) EPA's selection of the

further response actions ordered as arbitrary and capricious or

otherwise not in accordance with law, or (3) EPA's determination

that the Settling Defendant's liability for the further response

actions requested is reserved in Paragraphs 80, 81, or 83 or

otherwise not barred by the Covenant Not to Sue set forth in

Section XXII.

IX. QUALITY ASBURANCB. SAMPLING, and DATA ANALYSIS

23. Settling Defendant shall use quality assurance, quality

control, and chain of custody procedures for all environmental,

compliance and monitoring samples in accordance with EPA's "Interim

21

001155
Guidelines and Specifications For Preparing Quality Assurance

Project Plans," December 1980, (QAMS-005/80); "Data Quality

Objective Guidance," (EPA/540/G87/003 and 004) ; "EPA MEIC Policies

and Procedures Manual," May 1978, revised November 1984,

(EPA 330/9-78-001-R); and subsequent amendments to such guidelines

upon notification by EPA to Settling Defendant of such amendment.

Amended guidelines shall apply only to procedures conducted after

such notification. Prior to the commencement of any monitoring

project under this Consent Decree, Settling Defendant shall submit

for approval by EPA, after a reasonable opportunity for review and

comment by the State, a Quality Assurance Project Plan ("QAPP") to

EPA and the State 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

v

this Decree. Settling Defendant shall ensure that EPA personnel

and its authorized representatives are allowed access to all

laboratories utilized by Settling Defendant in implementing this

Consent Decree. In addition, Settling Defendant shall assure that

such laboratories shall analyze all samples submitted by EPA

pursuant to the QAPP for quality assurance monitoring. Settling

Defendant shall ensure that the laboratories utilized by them for

the analysis of samples taken pursuant to this Decree perform all

analyses according to accepted EPA methods. Accepted EPA methods

consist of those methods which are documented in the "Contract Lab

22

001156
Program Statement of Work for Inorganic Analysis" and the "Contract

Lab Program Statement of Work for Organic Analysis," dated February

1988, and any amendments made thereto during the course of the

implementation of this Decree. Settling Defendant shall ensure

i

that all laboratories used by them for analysis of samples taken

pursuant to this Consent Decree participate in an EPA or EPAequivalent QA/QC program.

24. Upon request, the Settling Defendant shall allow split or

duplicate samples to be taken by EPA or its authorized

representatives. Settling Defendant shall notify EPA not less than

28 days in advance of any sample collection activity unless shorter

notice is agreed to by EPA. In addition, EPA shall have the right

to take any additional samples that EPA'deems necessary. Upon

request, EPA shall allow the Settling Defendant to take split or

duplicate samples of any samples it takes as part of the

Plaintiff's oversight of the Settling Defendant's implementation of

the work.

25. Settling Defendant shall submit to EPA two (2) copies of

the results of all sampling and/or tests or other data obtained or

generated by or on behalf of Settling Defendant with respect to the

Site and/or the implementation of this Consent Decree unless EPA

agrees otherwise.

23

001157
26. Notwithstanding any provision of this Consent Decree, the

United States hereby retains all of its information gathering and

inspection authorities and rights, including enforcement actions

related thereto, under CERCLA, RCRA and any other applicable

i

statutes or regulations.

X. ACCESS

27. Commencing upon the date of lodging of this Consent

Decree, the Settling Defendant agree to provide the United States

and its representatives, including EPA and its contractors, access

at all reasonable times to the Site and any other property to which

access is required for the implementation of this Consent Decree,

to the extent access to the property is controlled by Settling

Defendant, for the purposes of conducting any activity related to

'this consent Decree including, but not limited to:

a. Monitoring the Work;

b. Verifying any data or information submitted to the

United States;

c. Conducting investigations relating to contamination

at or near the Site;

d. Obtaining samples;

e. Assessing the need for, planning, or implementing

additional response actions at or near the Site;

f. Inspecting and copying records, operating logs,

contracts, or other documents maintained or generated by Settling

Defendant or its agents, consistent with Section XXV; and

24

001158
g. Assessing Settling Defendant's compliance with this

Consent Decree.

28. To the extent that the Site or any other property to

which access is required for the implementation of this Consent

Decree is owned or controlled by persons other than Settling

Defendant, Settling Defendant shall use best efforts to secure from

such persons access for Settling Defendant, as well as for the

United States and its representatives, including, but not limited

to, EPA and their contractors, as necessary to effectuate this

Consent Decree. For purposes of this Paragraph "best efforts"

includes the payment of reasonable sums of money in consideration

of access. If any access required to complete the Work is not

obtained within 45 days of the date of entry of this Consent

Decree, or within 45 days of the date EPA notifies the Settling

Defendant in writing that additional access beyond that previously

V

secured is necessary, Settling Defendant shall promptly notify the

United States, and shall include in that notification a summary of

the steps Settling Defendant has taken to attempt to obtain access.

The United States may, as it deems appropriate, assist Settling

Defendant in obtaining access. Settling Defendant shall reimburse

the United States in accordance with the procedures in Section XVII

(Reimbursement of Response Costs), for all costs incurred by the

United States in obtaining access, including, but not limited to,

attorneys fees and the amount of just compensation.

25

001159
29. Notwithstanding any provision of this Consent Decree, the

United States retains all of its access authorities and rights,

including enforcement authorities related thereto, under CERCLA,

RCRA and any other applicable statute or regulations.

XI. REPORTING REQUIREMENTS

30. In addition to any other requirement of this Consent

Decree, Settling Defendant shall submit to EPA and the State two

(2) copies of written monthly progress reports that: (a) describe

the actions which have been taken toward achieving compliance with

this Consent Decree during the previous month; (b) include a

summary of all results of sampling and tests and all other data

received or generated by Settling Defendant or its contractors or

agents in the previous month; (c) identifies all work plans, plans

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 collection and implementation

V

of work plans, which are scheduled for the next month and provide

other information relating to the progress of construction,

including, but not limited to, critical path diagrams, Gantt charts

and Pert charts; (e) include information regarding percentage of

completion, unresolved delays encountered or anticipated that may

affect the future schedule for implementation of the Work, and a

description of efforts made to mitigate those delays or anticipated

delays; (f) include any modifications to the work plans or other

schedules that Settling Defendant has proposed tc EPA or that have

26

001160
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 month. Settling Defendant

shall submit these progress reports to EPA and the State by the

tenth day of every month following the entry of this Consent Decree

until EPA notifies the Settling Defendant pursuant to Paragraph

48.b of Section XV (Certification of Completion). If requested by

EPA, Settling Defendant shall also provide briefings for EPA to

discuss the progress of the Work.

31. The Settling Defendant 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

i • collection and implementation of work plans, no later than seven

days prior to the performance of the activity.

v

32. Upon the occurrence of any event during performance of

the Work that Settling Defendant is required to report pursuant to

Section 103 of CERCLA or Section 304 of the Emergency Planning and

Community Right-to-know Act (EPCRA), Settling Defendant shall

within 24 hours of the on-set of such event orally notify the EPA

Project Coordinator or the Alternate EPA Project Coordinator (in

the event of the unavailability of the EPA Project Coordinator),

or, in the event that neither the EPA Project Coordinator or

Alternate EPA Project Coordinator is available, the Emergency

Response Branch, Region 6, United States Environmental Protection

27

001161
Agency. These reporting requirements are in addition to the

i

reporting required by CERCLA Section 103 or EPCRA Section 304.

33. Within 20 days of the onset of such an event, Settling

Defendant shall furnish to Plaintiff a written report, signed by

the Settling Defendant's Project Coordinator, setting forth the

events which occurred and the measures taken, and to be taken, in

response thereto. Within 30 days of the conclusion of such an

event, settling Defendant shall submit a report setting forth all

actions taken in response thereto.

34. Settling Defendant shall submit two (2) copies of all

plans, reports, and data required by the SOW, the Remedial Action

i • Work Plan, or any other approved plans to EPA in accordance with

the schedules set forth in such plans. Settling Defendant shall

simultaneously submit two (2) copies of all such plans, reports and

data to the State.

35. All reports and other documents submitted by Settling

Defendant to EPA (other than the monthly progress reports referred

to above) which purport to document Settling Defendant's compliance

with the terms of this Consent Decree shall be signed by an

authorized representative of the Settling Defendant.

XII. SUBMISSIONS REQUIRING AGENCY APPROVAL

28

001162
36. After review of any plan, report or other item which is

i

required to be submitted for approval pursuant to this Consent

Decree, EPA, after reasonable opportunity for review and comment by

the State, shall: (a) approve, in whole or in part, the submission;

(b) approve the submission upon specified conditions; (c) modify

the submission to cure the deficiencies; (d) disapprove, in whole

or in part, the submission, directing that the Settling Defendant

modify the submission; or (e) any combination of the above.

37. In the event of approval, approval upon conditions, or

modification by EPA, pursuant to Paragraph 36(a) , (b), or (c),

Settling Defendant shall proceed to take any action required by the

plan, report, or other item, as approved or modified by EPA subject

\ • only to their right to invoke the Dispute Resolution procedures set

forth in Section XX (Dispute Resolution) with respect to the

modifications or conditions made by EPA. In the event that EPA

modifies the submission to cure the deficiencies pursuant to

Paragraph 36(c ) and the submission has a material defect, EPA

retains its right to seek stipulated penalties, as provided in

Section XXI.

38a. Upon receipt of a notice of disapproval pursuant to

Paragraph 36(d) , Settling Defendant shall, within 14 days or such

other time as specified by EPA in such notice, correct the

deficiencies and resubmit the plan, report, or other item for

approval. Any stipulated penalties applicable to the submission,

as provided in Section XXI, shall accrue during the 14-day period

29

001163
or otherwise specified period but shall not be payable unless the

i

resubmission is disapproved or modified due to a material defect as

provided in Paragraph 39.

b. Notwithstanding the receipt of a notice of disapproval

pursuant to Paragraph 36(d) , Settling Defendant shall proceed, at

the direction of EPA, to take any action required by any nondeficient portion of the submission. Implementation of any nondeficient portion of a submission shall not relieve Settling

Defendant of any liability for stipulated penalties under Section

XXI (Stipulated Penalties).

39. In the event that a resubmitted plan, report or other

item, or portion thereof, is disapproved by EPA, EPA may again

i •

require the Settling Defendant to correct the deficiencies, in

accordance with the preceding Paragraphs. EPA also retains the

right to amend or develop the plan, report or other item. Settling

v

Defendant shall implement any such plan, report, or item as amended

or developed by EPA, subject only to its right to invoke procedures

set forth in Section XX (Dispute Resolution).

40. If upon resubmission, a plan, report, or item is

disapproved or modified by EPA due to a material defect, Settling

Defendant shall be deemed to have failed to submit such plan,

report, or item timely and adequately unless the Settling Defendant

invokes the dispute resolution procedures set forth in Section XX

(Dispute Resolution) and EPA's action is overturned pursuant to

30

001164
that Section. The provisions of Section XX (Dispute Resolution)

and Section XXI (Stipulated Penalties) shall govern the

implementation of the Work and accrual and payment of any

stipulated penalties during Dispute Resolution. If EPA's

disapproval or modification is upheld, stipulated penalties shall

accrue for such violation from the date on which the initial

submission was originally required, as provided in Section XXI.

41. All plans, reports, and other items required to be

submitted to EPA under this Consent Decree shall, upon approval or

modification by EPA, be enforceable under this Consent Decree. In

the event EPA approves or modifies a portion of a plan, report, or

other item required to be submitted to EPA under this Consent

Decree, the approved or modified portion shall be enforceable under

this Consent Decree.

V

XIII. PROJECT COORDINATORS

42. Within 20 days of lodging this Consent Decree, Settling

Defendant 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 Alternate Project Coordinator initially designated

is changed, the identity of the successor will be given to the

other parties at least 5 working days before the changes occur,

unless impracticable, but in no event later than the actual day the

change is made. The Settling Defendant's Project Coordinator shall

31

001165
be subject to disapproval by EPA and shall have the technical

expertise sufficient to adequately oversee all aspects of the Work.

The Settling Defendant's Project Coordinator shall not be acting as

an attorney for the Settling Defendant in this matter. He or she

nay assign other representatives, including other contractors, to

serve as a Site representative for oversight of performance of

daily operations during remedial activities.

43. Plaintiff may designate other representatives, including,

but not limited to, EPA employees, and federal contractors and

consultants, to observe and monitor the progress of any activity

undertaken pursuant to this Consent Decree. EPA's Project

Coordinator and Alternate Project Coordinator shall have the

i • authority lawfully vested in a Remedial Project Manager (RPM) by

the National Contingency Plan, 40 C.F.R. Part 300. In addition,

EPA's Project Coordinator or Alternate Project Coordinator shall

have authority, consistent with the National Contingency Plan, to

halt any Work required by this Consent Decree and to take any

necessary response action when s/he determines that conditions at

the Site constitute an emergency situation or may present an

immediate threat to public health or welfare or the environment due

to release or threatened release of Waste Material.

44. EPA's Project Coordinator and the Settling Defendant's

Project Coordinator will meet, at a minimum, on a monthly basis

during the Remedial Action. During Operation and Maintenance,

32

001166
EPA's Project Coordinator and the Settling Defendant's Project

Coordinator will meet as needed to discuss monitoring results.

XIV. ASSURANCE OP ABILITY TO COMPLETE WORK

45. Within 30 days of lodging of this Consent Decree,

Settling Defendant shall establish and maintain financial security

in the amount of $ 750,000 in one of the following forms:

(a) A surety bond guaranteeing performance of the Work;

(b) One or more letters of credit equalling the total

estimated cost of the Work;

(c) A trust fund;

(d) A guarantee to perform the Work by one or more parent

corporations or subsidiaries, or by one or more unrelated

I ;

corporations that have a substantial business relationship

with the Settling Defendant; or

(e) A demonstration that the Settling Defendant satisfies

the requirements of 40 C.F.R. § 264.143(f ) or requirements

substantially similar to 40 C.F.R. § 264.143(f) .

46. If the Settling Defendant seeks to demonstrate the

ability to complete the Work through a guarantee by a third party

pursuant to Paragraph 45(d) of this Consent Decree, Settling

Defendant shall demonstrate that the guarantor satisfies the

requirements of 40 C.F.R. Part 264.143(f) . If Settling Defendant

seeks to demonstrate its ability to complete the Work by means of

the financial test or the corporate guarantee pursuant to Paragraph

33

001167
45(d) or (e), it shall resubmit sworn statements conveying the

information required by 40 C.F.R. Part 264.143(f) annually, on the

anniversary of the effective date of this Consent Decree. In the

event -that EPA determines at any time that the financial assurances

provided pursuant to this Section are inadequate, Settling

Defendant shall, within 30 days of receipt of notice of EPA's

determination, obtain and present to EPA for approval one of the

other forms of financial assurance listed in Paragraph 45 of this

Consent Decree. Settling Defendant's inability to demonstrate

financial ability to complete the Work shall not excuse performance

of any activities required under this Consent Decree.

XV. CERTIFICATION OF COMPLETION

'; 47. Completion of the Remedial Action

a. Within 90 days after Settling Defendant concludes

that the Remedial Action has been fully performed and the

Performance Requirements have been attained, the Settling Defendant

shall schedule and conduct a pre-certification inspection to be

attended by Settling Defendant and EPA. If, after the precertif ication inspection, the Settling Defendant still believes

that the Remedial Action has been fully performed and the

Performance Requirements have been attained, it shall submit a

written report requesting certification to EPA for approval, with a

copy to the State, pursuant to Section XII (Submissions Requiring

Agency Approval) within 30 days of the inspection. In the report,

a registered professional engineer and the settling Defendant's

34

001168
Project Coordinator shall certify that the Remedial Action has been

completed in full satisfaction of the requirements of this Consent

Decree. The written report shall include as-built drawings signed

and stamped by a professional engineer. The report shall contain

the following statement, signed by a responsible corporate official

of a Settling Defendant or the Settling Defendant's Project

Coordinator:

"To the best of my knowledge, after thorough

investigation, I certify that the information contained

in or accompanying this submission is true, accurate and

complete.' I am aware that there are significant

penalties for submitting false information, including the

possibility of fine and imprisonment for knowing

violations."

If, after completion of the pre-certification inspection and

receipt and review of the written report, EPA, after reasonable

i •

opportunity to 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

Requirements have not been achieved, EPA will notify Settling

Defendant in writing of the activities that must be undertaken to

complete the Remedial Action and achieve the Performance

Requirements. EPA will set forth in the notice a schedule for

performance of such activities consistent with the Consent Decree

and the SOW or require the Settling Defendant to submit a schedule

to EPA for approval pursuant to Section XII (Submissions Requiring

Agency Approval). Settling Defendant shall perform all activities

described in the notice in accordance with the specifications and

schedules established pursuant to this Paragraph, subject to its

35

001169
right to invoke the dispute resolution procedures set forth in

Section XX (Dispute Resolution).

b. If EPA concludes, based on the initial or any

subsequent Certification of Completion by Settling Defendant and

after a reasonable opportunity for review and comment by the State,

that the Remedial Action has been fully performed in accordance

with this Consent Decree and that the Performance Requirements

have been achieved, EPA will so certify in writing to Settling

Defendant. This certification will be sent to the Settling

Defendant within 60 days from the date EPA receives either the

initial or subsequent Certification of Completion by Settling

Defendant upon which EPA based its conclusion that the Remedial

Action has been fully performed. This certification shall

I ; constitute the Certification of Completion of the Remedial Action

for purposes of this Consent Decree, including, but not limited to,

Section XXII (Covenants Not to Sue by Plaintiff). Certification of

V

Completion of the Remedial Action shall not affect Settling

Defendant's obligations under this Consent Decree.

48. Completion of the Work

a. Within 90 days after Settling Defendant concludes

that all phases of the Work (including 0 & M), have been fully

performed, Settling Defendant shall schedule and conduct a precertification inspection to be attended by Settling Defendant and

EPA. If, after the pre-certification inspection, the Settling

Defendant still believes that the Work has been fully performed,

36

001170
Settling Defendant shall submit a written report by a registered

professional engineer stating that the Work has been completed in

full satisfaction of the requirements of this Consent Decree. The

report.shall contain the following statement, signed by a

responsible corporate official of a Settling Defendant or the

Settling Defendant's Project Coordinator:

"To the best of my knowledge, after thorough

investigation, I certify that the information contained

in or accompanying this submission is true, accurate and

complete. I am aware that there are significant

penalties for submitting false information, including the

possibility of fine and imprisonment for knowing

violations."

If, after review of the written report, EPA, after reasonable

opportunity to review and comment by the State, determines that any

portion of the Work has not been completed in accordance with this

I ; Consent Decree, EPA will notify Settling Defendant in writing of

the activities that must be undertaken to complete the Work. EPA

will set forth in the notice a schedule for performance of such

activities consistent with the Consent Decree and the SOW or

require the Settling Defendant to submit a schedule to EPA for

approval pursuant to Section XII (Submissions Requiring Agency

Approval). Settling Defendant shall perform all activities

described in the notice in accordance with the specifications and

schedules established therein, subject to its right to invoke the

dispute resolution procedures set forth in Section XX (Dispute

Resolution).

b. If EPA concludes, based on the initial or any

subsequent request for Certification of Completion by Settling

37

001171
Defendant and after a reasonable opportunity for review and comment

by the State, that the Work has been fully performed in accordance

with this Consent Decree, EPA will so notify the Settling Defendant

in writing.

X71. EMERGENCY RESPONSE

49. In the event of any action or occurrence during the

performance of the Work which causes or threatens a release of

Waste Material from the Site that constitutes an emergency

situation or may present L..I immediate threat to public health or

welfare or the environment, Settling Defendant shall, subject to

Paragraph 50, immediately take all appropriate action to prevent,

abate, or minimize such release or threat of release, and shall

immediately notify the EPA's Project Coordinator, or, if the

P'roject Coordinator is unavailable, EPA's Alternate Project

Coordinator. If neither of these persons is available, the

V

Settling Defendant shall notify the EPA Emergency Response Branch,

Region 6. Settling Defendant shall take such actions in

consultation 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 Defendant fails to take

appropriate response action aa required by this Section, and EPA

takes such action instead, Settling Defendant shall reimburse EPA

38

001172
all costs of the response action not inconsistent with the NCP

pursuant to section XVII (Reimbursement of Response Costs).

50. Nothing in the preceding Paragraph or in this Consent

Decree shall be deemed to limit any authority of the United States

to take, direct, or order all appropriate action or to seek an

order from the Court to protect human health and the environment or

to prevent, abate, respond to, or minimize an actual or threatened

release of Waste Material on, at, or from the Site.

XVII. REIMBURSEMENT OP RESPONSE COSTS

51. Settling Defendant shall pay to the United states

$50,000.00. Settling Defendant will make this payment in two

installments. The first installment wiil be paid within 60 days of

t~he effective date of this Consent Decree and will be in the amount

of twenty-five thousand dollars ($25,000) . The second installment

V

will be paid within one (1) year of the effective date of this

Consent Decree and will be in the amount of twenty-five thousand

dollars ($25,000) plus interest that has accrued from the effective

date of this Consent Decree. The payments shall be made by mailing

a money order, cashier's check, or certified check payable to "EPA

Hazardous Substance Superfund" to the following address:

U.S. Environmental Protection Agency - Region 6 Jacksonville Municipal Landfill Superfund Site

P.O. BOX 360582M

Pittsburgh, PA 15251

Attn: Collection Officer of Superfund

39

001173
CERCLA Number ARD980809941 and DOJ Case Number 90-11-3-814 should

be clearly typed on the check to ensure credit. Settling Defendant

shall send simultaneous copies of the check to the United states as

specified in Section XXVII (Notices and Submissions).

52. It is the understanding of the Parties that each Party

will incur Future Response Costs in performing their respective

activities related to this Consent Decree and as more specifically

described in the SOW. It is the intent of the Parties that the

activities undertaken by each party, and the Future Response Costs

incurred with respect to those activities, be the financial

responsibility of the party undertaking that activity. By way of

example only, and without limitation, the activities to be

undertaken by the Settling Defendant generally consist of obtaining

access to the Site, facilitating transportation of waste material

from the Jacksonville Municipal Landfill to the Vertac Chemical

Corporation facility, providing clean fill material, grading fill

material and revegetating the Site, filling Site trenches and low

spots, fencing of the Site and providing Site security until the

Site is delisted from the National Priorities List, Operation and

Maintenance and the placing of restrictions on the use of

groundwater at the site. By way of example only, and without

limitation, the activities to be undertaken by EPA generally

consist of sampling, excavation and transportation of waste

material to the Vertac site, thermal treatment and disposal of this

waste material, oversight and five year review, and may include

40

001174
activities related to delisting. the Site. The foregoing provisions

regarding each Party's responsibility for Future Response Costs are

specifically subject to the reservations contained in Paragraphs

81, 82 and 84, and are further subject to the provisions of

Paragraph 85. In the event that EPA performs any portion of the

Work that is the responsibility of the Settling Defendant under the

terms of this Consent Decree and incurs Future Response costs,

pursuant to Paragraph 85, Settling Defendant shall reimburse the

United States for all Future Response Costs not inconsistent with

the National Contingency Plan so incurred by the United States. In

this event, the United States will send Settling Defendant a bill

requiring payment that includes a Cost Documentation Management

System (CDMS) Report, which includes all direct and indirect costs

incurred by EPA, DOJ or their contractors in performing the Work.

Settling Defendant shall make payment within 30 days of Settling

Defendant's receipt of a bill requiring payment, except as

otherwise provided in Paragraph 53. The Settling Defendant shall

make any payments required by this Paragraph in the manner

described in Paragraph 51.

53. Settling Defendant may contest payment of any Future

Response Costs under Paragraph 52 if it determines that the United

States has made an accounting error or if it alleges that a cost

item that is included represents costs that are inconsistent with

the NCP. Such objection shall be made in writing within 30 days of

receipt of the bill and must be sent to the United States pursuant

41

001175
to Section XXVII (Notices and Submissions). Any such objection

shall specifically identify the contested Future Response Costs and

the basis for objection. In the event of an objection, the

Settling Defendant shall within the 30 day period pay all

uncontested Future Response Costs to the United States in the

manner described in Paragraph 51. Simultaneously, the Settling

Defendant shall initiate the Dispute Resolution procedures in

Section XX (Dispute Resolution). If the United States prevails in

the dispute, within 30 days of the resolution of the dispute, the

Settling Defendant shall pay the sums due (with accrued interest)

to the United States in the manner described in Paragraph 51. If

the Settling Defendant prevails concerning any aspect of the

contested costs, the Settling Defendant shall pay that portion of

the costs (plus associated accrued interest) for which it did not

prevail to the United States in the manner described in Paragraph

51. The dispute resolution procedures set forth in this Paragraph

in conjunction with the procedures set forth1in Section XX (Dispute

Resolution) shall be the exclusive mechanisms for resolving

disputes regarding the Settling Defendant's obligation to reiinburse

the United States for its Future Response Costs.

54. In the event that the payments required by Paragraph 51

are not made within 30 days of the effective date of this Consent

Decree or the payments required by Paragraph 52 are not made within

30 days of the Settling Defendant's receipt of the bill, Settling

Defendant shall pay interest on the unpaid balance at the rate

42

001176
established pursuant to Section-107(a) of CERCLA, 42 U.S.C. S 9607.

The^interest to be paid on Past Response Costs shall begin to

accrue on the effective date of the Consent Decree. The interest

on Future Response Costs shall begin to accrue on the date of the

Settlihg Defendant's receipt of the bill. Payments made under this

Paragraph shall be in addition to such other remedies or sanctions

available to Plaintiff by virtue of Settling Defendant's failure to

make timely payments under this Section.

XVTII. INDEMNIFICATION AND INSURANCE

55. The United States does not assume any liability by

entering into this agreement or by virtue of any designation of

Settling Defendant as EPA's authorized representative under Section

104(e) of CERCLA. Settling Defendant si^all indemnify, save and

hold harmless the United States and its officials, agents,

4

employees, contractors, subcontractors, or representatives for or

from any and all claims or causes of action arising from, or on

account of, acts or omissions of the Settling Defendant, its

officers, directors, employees, agents, contractors,

subcontractors, and any persons acting on its behalf or under its

control, in carrying out activities pursuant to this Consent

Decree, including, but not limited to, any claims arising from any

designation of Settling Defendant as EPA's authorized

representative under Section 104(e) of CERCLA. Further, the

Settling Defendant agrees to pay the United states all costs it

incurs including, but not limited to, attorneys fees and other

43

001177
expenses of litigation and settlement arising from, or on account

of,i claims made against the United States based on acts or

omissions of Settling Defendant, its officers, directors,

employees, agents, contractors, subcontractors, and any persons

acting; on its behalf or under its control, in carrying out

activities pursuant to this Consent Decree. The United States

shall not be held out as a party to any contract entered into by or

on behalf of Settling Defendant in carrying out activities pursuant

to this Consent Decree. Neither the Settling Defendant nor any

such contractor shall be considered an agent of the United States.

56. Settling Defendant waives all claims against the United

States for damages or reimbursement or for set-off of any payments

made or to be made to the United States jarising from or on account

of any contract, agreement, or arrangement between the Settling

Defendant and any person for performance of Work on or relating to

the Site, including, but not limited to, claims on account of

construction delays. In addition, Settling Defendant shall

indemnify and hold harmless the United States with respect to any

and all claims for damages or reimbursement arising from or on

account of any contract, agreement, or arrangement between Settling

Defendant and any person for performance of Work on or relating to

the Site, including, but not limited to, claims on account of

construction delays.

44

001178
57.a. No later than 15 days before commencing any on-site

Work, Settling Defendant shall secure, and shall maintain until the

first anniversary of EPA's Certification of Completion of the

Remedial Action pursuant to Paragraph 47.b of Section XV

(Certification of Completion) comprehensive general liability and

automobile insurance with limits of two (2) million dollars,

combined single limit naming as insured the United States. In

addition, for the duration of this Consent Decree, Settling

Defendant shall satisfy, or shall ensure that their contractors or

subcontractors satisfy, all applicable laws and regulations

regarding the provision of worker's compensation insurance for all

persons performing the Work on behalf of Settling Defendant in

furtherance of this Consent Decree. Prior to commencement of the

Work under this Consent Decree, Settling;.Defendant shall provide to

EPA.certificates of such insurance and a copy of each insurance

policy. Settling Defendant shall resubmit such certificates and

copies of policies each year on the anniversary of the effective

date of this Consent Decree. If Settling Defendant demonstrates by

evidence satisfactory to EPA that any contractor or subcontractor

maintains insurance.equivalent to that described above, or

insurance covering the same risks but in a lesser amount, then,

with respect to that contractor or subcontractor, Settling

Defendant need provide only that portion cf the insurance described

above which is not maintained by the contractor or subcontractor.

b. As an alternative to comprehensive general liability

and automobile insurance in the amounts stated in paragraph 57.a

45

001179
above, Settling Defendant may elect to demonstrate, to the EPA's

satisfaction, that it is self-insured. In this context, "selfinsured" shall mean that the Settling Defendant has the ability to

satisfy claims made against it that would othervise.be covered

under 'standard form comprehensive general liability and automobile

insurance policies. Such demonstration should include financial

information from the Settling Defendant, including, but not limited

to, information similar to that which is to be submitted to satisfy

paragraph 45 of this Consent Decree. Such demonstration may also

include information regarding the Settling Defendant's procedures

for handling and paying claims, information regarding excess

insurance, or information establishing that the Settling Defendant

is afforded immunity from liability by virtue of state law or

otherwise. The information submitted under this paragraph, taken

as a whole, must be sufficient to demonstrate Settling Defendant's

ability to satisfy claims made against it. If Settling Defendant

seeks to demonstrate that it is self-insured, it shall resubmit

statements conveying the information required by this paragraph

annually, on the anniversary of the effective date of this Consent

Decree, until the first anniversary of EPA's Certification of

Completion of the Remedial Action pursuant to Paragraph 47.b of

Section XV (Certification of Completion).

XIX. FORCE MAJEURB

58. "Force majeure," for purposes of this Consent Decree, is

defined as any event arising from causes beyond the control of the

46

001180
Settling Defendant or of any entity controlled by Settling

Defendant, including, but not limited to, their contractors and

subcontractors, that delays or prevents the performance of any

obligation under this Consent Decree despite Settling Defendant's

best efforts to fulfill the obligation. The requirement that the

Settling Defendant exercise "best efforts to fulfill the

obligation" includes using best efforts to anticipate any potential

force majeure event and best efforts to address the effects of any

potential force majeure event (1) as it is occurring and (2)

following the potential force majeure event, such that the delay is

minimized to the greatest extent possible. "Force Majeure" does

not include financial inability to complete the Worh or a failure

to attain the Performance Requirements.

I ;

- 59. If any event occurs or has occurred that may delay the

performance of any obligation under this Consent Decree, whether or

not caused by a force majeure event, the Settling Defendant shall

notify 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 representatives are unavailable, the Director of the

Hazardous Waste Management Division, EPA Region 6, within fortyeight (48) hours of when Settling Defendant first knew or should

have known that the event might cause a delay. Within five (5)

days thereafter, Settling Defendant shall provide in writing to EPA

an explanation and description of the reasons for the delay; the

anticipated duration of the delay; all actions taken or to be taken

47

001181
to prevent or minimize the delay; a schedule for implementation of

any measures to be taken to prevent or mitigate the delay or the

effect of the delay; the Settling Defendant's rationale for

attributing such delay to a force majeure event if they intend to

assert such a claim; and a statement as to whether, in the opinion

of the Settling Defendant, such event may cause or contribute to an

endangerment to public health/ welfare or the environment. The

Settling Defendant shall include with any notice all available

documentation supporting their claim that the delay was

attributable to a force majeure. Failure to comply with the above

requirements shall preclude Settling Defendant from asserting any

claim of force majeure for that event. Settling Defendant shall be

deemed to have notice of any circumstance of which their

contractors or subcontractors had or should have had notice.

60. If EPA agrees that the delay or anticipated delay is

attributable to a force majeure event, the time for performance of

the obligations under this Consent Decree that are affected by the

force majeure event will be extended by EPA for such time as is

necessary to complete those obligations. An extension of the tine

for performance of the obligations affected by the force majeure

event shall not, of itself, extend the time for performance of any

subsequent obligation. If EPA does not agree that the delay or

anticipated delay has been or will be caused by a force majeure

event, EPA will notify the Settling Defendant in writing of its

decision. If EPA agrees that the delay is attributable to a force

48

001182
majeure event, EFA will notify the Settling Defendant of the length

of the extension, if any, for performance of the obligations

affected by the force majeure event.

61. If the Settling Defendant elects 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 Defendant shall have the

burden of demonstrating by a preponderance of the evidence that the

delay or anticipated delay has been or will be caused by a force

majeure event, that the duration of the delay or the extension

sought was or will be warranted under the circumstances, that best

efforts were exercised to avoid and mitigate the effects of the

delay, and that Settling Defendant complied with the requirements

of -Paragraphs 58 and 59, above. If Settling Defendant carry this

burden, the delay at issue shall be deemed not to be a violation by

Settling Defendant of the affected obligation of this Consent

Decree identified to EPA and the Court.

XT. DISPUTE RESOLUTION

62. Unless otherwise expressly provided for in this Consent

Decree, the dispute resolution procedures of this Section shall be

the exclusive mechanism to resolve disputes arising under or with

respect to this Consent Decree. However, the procedures set forth

in this Section shall not apply to actions by the United States to

49

001183
enforce obligations of the Settling Defendant that have not been

disputed in accordance with this Section.

63. Any dispute which arises under or with respect to 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 modified by agreement of the

parties to the dispute. The dispute shall be considered to have

arisen when one party notifies the other parties a written Notice

of Dispute.

64. 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 10 days after the conclusion of the informal

negotiation period, Settling Defendant invokes the formal dispute

resolution procedures of this Section by serving on the United

States a written Statement of Position on the matter in dispute,

including, but not limited to, any factual data, analysis or

opinion supporting that position and any supporting documentation

relied upon by the Settling Defendant. The Statement of Position

shall specify the Settling Defendant's position as to whether

formal dispute resolution should proceed under paragraph 65 or 66.

b. Within fourteen (14) days after receipt of Settling

Defendant'3 Statement of Position, EPA will serve on Settling

50

001184
Defendant its Statement of Position, including/ but not limited to,

any factual data, analysis, or opinion supporting that position and

all supporting documentation relied upon by EPA. EPA's Statement

of Position shall include a statement as to whether formal dispute

resolution should proceed under Paragraph 65 or 66.

c. If there is disagreement between EPA and the Settling

Defendant as to whether dispute resolution should proceed under

Paragraph 65 or 66, the parties to the dispute shall follow the

procedures set forth in the paragraph determined by EPA to be

applicable. However, if the Settling Defendant ultimately appeals

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 65 and 66.

65.a. 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: (1) the adequacy or appropriateness

of plans, procedures to implement plans, or any other items

requiring approval by EPA under this Consent Decree; and (2) the

adequacy of response actions performed pursuant to this Consent

Decree. Nothing in this Consent Decree shall be construed to allow

51

001185
any dispute by Settling Defendant regarding the validity of the

ROD'S provisions.

b. 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

Paragraph. Where appropriate, EPA may allow submission of

supplemental statements of position by the parties to the dispute.

c. The Director of the Hazardous Waste Management

Division, EPA Region 6, will issue a final administrative decision

resolving the dispute based on the administrative record described

in Paragraph 65.a. This decision shall be binding upon the

Settling Defendant, subject only to the right to seek judicial

review pursuant to Paragraph 65.c. and d.

d. Any administrative decision by EPA pursuant to

Paragraph 65.b. shall be reviewable by this Court, provided that a

notice of judicial appeal is filed by the Settling Defendant with

the Court and served on all Parties within 10 days of receipt of

EPA's decision. The notice of judicial appeal shall include a

description of the matter in dispute, the efforts made by the

Parties to resolve it, the relief requested, and the schedule, if

any, within which the dispute must be resolved to ensure orderly

implementation of this Consent Decree. The United States may file

a response to Settling Defendant's notice of judicial appeal.

e. In proceedings on any dispute governed by this

Paragraph, Settling Defendant shall have the burden of

demonstrating that the decision of the Hazardous Waste Management

52

001186
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 65.a.

66. a. 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.

b. Following receipt of Settling Defendant's statement

of position submitted pursuant to Paragraph 64, the Hazardous Waste

Management Division Director will issue a final decision resolving

the dispute. The Hazardous Waste Management Division Director's

decision shall be binding on the Settling Defendant unless, within

10 days of receipt of the decision, the Settling Defendant files

with the Court and serves on the parties a notice of judicial

appeal setting forth the matter in dispute, the efforts made by the

Parties to resolve it, the relief requested, and the schedule, if

any, within which the dispute must be resolved to ensure orderly

implementation of the Consent Decree. The United States may file a

response to Settling Defendant's notice of judicial appeal.

c. Notwithstanding Paragraph M of Section I

(Background) of this Consent Decree, judicial review of any dispute

governed by this Paragraph shall be governed by applicable

provisions of law.

53

001187
67. The invocation of formal dispute resolution procedures

under this Section shall not of itself extend, postpone or affect

in any way any obligation of the Settling Defendant 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 76. Notwithstanding the stay of payment, stipulated

penalties shall accrue from the first day of noncompliance with any

applicable provision of this Consent Decree. In the event that the

Settling Defendant does not prevail on the disputed issue,

stipulated penalties shall be assessed and paid as provided in

Section XXI (Stipulated Penalties).

XXI. STIPULATED PENALTIES

68. Settling Defendant shall be liable for stipulated

penalties in the amounts set forth in Paragraphs 69, 70, 71 and 72

to the United States for failure to comply with the requirements of

this Consent Decree specified below, unless excused under Section

XIX (Force Majeure). "Compliance" by Settling Defendant shall

include completion of the activities under this Consent Decree or

any work plan or other plan approved under this Consent Decree

identified below in accordance with all applicable requirements of

54

001188
law, this Consent Decree,, the SOW, and any plans or other documents

approved by EPA pursuant to this Consent Decree and within the

specified time schedules established by and approved under this

Consent Decree.

69.a. The following stipulated penalties shall be payable per

violation per day to the United States for any noncompliance

identified in Subparagraph b:

Penalty Per Violation

Per pav ______ Period of Noncompliance

$1,000 days 1-7

$2,000 days 8-14

$3,000 days 15-21

$5,000 over 21 days

b. i. Failure to submit the Remedial Action Work

Plan; or

ii. Failure to begin or complete remedial actions

as required by the schedule adopted in the Remedial

Action Work Plan as set forth in Paragraph 12.b,

Section VI. (Performance of the Work by Settling

Defendant)

70. The following stipulated penalties shall be payable per

violation per day to the United States for failure to submit timely

or adequate reports or other written documents, other than those

55

001189
reports or documents covered in Paragraph 69.b. above:

Penalty Per Violation

Per Day_________ Period of Noncompliance

$250 days 1-7

$500 days 8-14

$1,000 over 14 days

71. In the event that EPA assumes performance of a portion or

all of the Work pursuant to Paragraph 85 of Section XXII (Covenants

Not to Sue by Plaintiff), Settling Defendant shall be liable for a

stipulated penalty in the amount of $60,000, and this stipulated

penalty shall be in additirti to any future response costs for which

the Settling Defendant is liable under Paragraph 85.

72. The following stipulated penalties shall be payable per

violation per day to the United States for each failure to meet any

rejquirement, condition or term of this consent Decree or Appendices

(except for those activities covered in Paragraphs 69, 70 and 71

above):

Penalty Per Violation

Per Day__________ period of Noncomollance

$500 days 1-7

$1,000 days 8-14

$2,00 0 over 14 days

73. All penalties shall begin to accrue on the day after the

complete performance is due or the day a violation occurs, and

shall continue to accrue through the final day of the correction of

the noncompliance or completion of the activity. Nothing herein

56

001190
shall prevent the simultaneous accrual of separate penalties for

separate violations of this Consent Decree.

74. Following EPA's determination that Settling Defendant has

failed to comply with a requirement of this Consent Decree, EPA may

give Settling Defendant written notification of the same and

describe the noncompliance. EPA may send the Settling Defendant a

written demand for the payment of the penalties. However,

penalties shall accrue as provided in the preceding Paragraph

regardless of whether EPA has notified the Settling Defendant of a

violation.

75. All penalties owed to the United States uncler this

section shall be due and payable within 60 days of t:he Settling

Defendant's receipt from EPA of a demand for payment of the

penalties, unless Settling Defendant invoke the Dispute Resolution

procedures under Section XX (Dispute Resolution). All payments

under this Section shall be made by mailing a money order,

cashier's check, or certified check payable to "EPA Hazardous

Substances Superfund," to the following address:

U.S. Environmental Protection Agency - Region 6 Jacksonville Municipal Landfill Superfund Site

P.O. Box 3605S2M

Pittsburgh, PA 15251

Attn: Collection Officer of Superfund

CERCLA Number ARD980809941 and DOJ Case Number 90-11-13-814 should

be clearly typed on the check to ensure credit. Settling Defendant

shall send simultaneous notices of such payments, including copies

57

001191
money order, cashier's check, or certified check paid pursuant to

this Section, and any accompanying transmittal letter(s), to the

United States as provided in Section XXVII (Notices and

Submissions). Your adherence to these procedures will- ensure

proper credit is given when penalties are received.

76. The payment of penalties shall not alter in any way

Settling Defendant's obligation to complete the performance of the

Work required under this Consent Decree.

77. Penalties shall continue to accrue as provided in

Paragraph 73 during any dispute resolution period, but need not be

paid until the following:

a. If the dispute is resolved by agreement or by a

decision of EPA that is not appealed to this Court, accrued

penalties determined to be owing shall be paid to EPA within 15

days of the agreement or the receipt of EPA's decision or order;

b. If the dispute is appealed to this Court and the

United States prevails in whole or in part, Settling Defendant

shall pay all accrued penalties 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 Subparagraph c below;

c. If the District Court's decision is appealed by any

Party, Settling Defendant shall pay all accrued penalties

Determined by the Court to be owing to the United States into an

interest-bearing escrow account within 60 days of receipt of the

58

001192
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 Defendant to the extent that they prevail. „

78. a. If Settling Defendant fails to pay stipulated

penalties when due, the United States may institute proceedings to

collect the penalties, as well as late charges and interest.

Settling Defendant shall pay interest on the unpaid balance, which

interest shall begin to accrue on the date of demand made pursuant

to Paragraph 75 at the rate established pursuant to Section 107(a)

of CERCLA, 42 U.S.C. § 9607. The due date is the date or dates

specified in this Consent Decree for payment unless Settling

Defendant invokes dispute resolution. If dispute resolution is

invoked, for the purposes of interest calculation, the due date is

the date of the final resolution of the dispute.

b. If the payment is overdue, the United States will

also impose a late-payment handling charge of $15, with an

additional delinquent notice charge of $15 for each subsequent 30-

day period. Finally, the United States will apply a 6 percent per

annum penalty on any principal amount not paid within 90 days of

the due date. Other penalties for failure to make a timely payment

may also apply.

c. Nothing in this Consent Decree shall be construed as

prohibiting, altering, or in any way limiting the ability of the

59

001193
United States to seek any other remedies or sanctions available by

virtue of Settling Defendant's violation of this Decree or of the

statutes and regulations upon which it is based, including, but not

limited to, penalties pursuant to Section 122(1) of CERCLA.

79. No payments made under this Section shall be tax

deductible for Federal tax purposes.

XXII. COVENANTS HOT TO SUE BY PLAINTIFF

80. In consideration of the actions that will be performed

and the payments that will be made by the Settling Defendant under

the terms of the Consent Decree, and except as specifically

provided in Paragraphs 81, 82, and 84 of this Section, the United

States covenants not to sue or to take administrative action

against Settling Defendant pursuant to Sections 106 and 107(a) of

CERCLA or Section 7003 of RCRA relating to the Site. Except with

respect to future liability, these covenants not to sue shall take

effect upon the receipt by EPA of the payments required by

Paragraph 51 of Section XVII (Reimbursement of Response Costs).

With respect to future liability, these covenants not to sue shall

take effect upon Certification of Completion of Remedial Action by

EPA pursuant to Paragraph 47.b of Section XV (Certification of

Completion) . These covenants not to sue are conditioned upon the

complete and satisfactory performance by Settling Defendant of its

obligations under this Consent Decree. These covenants not to sue

60

001194
extend only to the Settling Defendant and do not extend to any

other person.

81. United States' Pre-certification reservations.

Notwithstanding any other provision of this Consent Decree, the

United States reserves, 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 Defendant (1) to perform further response actions

relating to the Site or (2) to reimburse the United States for

additional costs of response if, prior to certification of

completion of the 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 these previously unknown conditions or this information

together with any other relevant information indicates that the

Remedial Action is not protective of human health or the

environment.

82. United States' Post-certification reservations.

Notwithstanding any other provision of this Consent Decree, the

United States reserves, 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

61

001195
compel Settling Defendant (1) to perform further response actions

relating to the Site or (2) to reimburse the United States for

additional costs of response if, subsequent to certification of

completion of the 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 these previously unknown conditions or this information

together with other relevan- information indicate that the Remedial

Action is not protective of human health or the environment.

83. For purposes of Paragraph 81, the information and the

conditions known to EPA shall include only that information and

those conditions set forth in the Record of Decision for the Site

and the administrative record supporting the Record of Decision.

For purposes of Paragraph 82, the information and the conditions

known to EPA shall include only that information and those

conditions set forth in the Record of Decision, the administrative

record supporting the Record of Decision, and any information

received by EPA pursuant to the requirements of this Consent Decree

prior to Certification of Completion of the Remedial Action.

84. General reservations of rights. The covenants not to sue

set forth above do not pertain to any matters other than those

62

001196
expressly specified in Paragraph 80. The United States reserves,

and this Consent Decree is without prejudice to, all rights against

Settling Defendant with respect to all other matters, including but

not limited to, the following:

(1) claims based on a failure by Settling Defendant

to meet a requirement of this Consent Decree;

(2) liability arising from the past, present, or future

disposal, release, or threat of release of Waste Materials

outside of the Site:

(3) liability for damages for injury to, destruction

of, or loss of natural resources;

(4) liability for response costs that havi been or may

be incurred by the U.S. Fish and Wildlife Service or other

Branch, Section, Bureau or Division of the U.S. Department of

'.; the Interior;

(5) criminal liability; and

(6) liability for violations of federal or state law

which occur during or after implementation of the Remedial

Action.

85. In the event EPA determines that Settling Defendant has

failed to implement any provisions of the Work in an adequate or

timely manner, EPA may perform any and all portions of the Work as

EPA determines necessary. Settling Defendant may invoke the

procedures set forth in Section XX (Dispute Resolution) to dispute

63

001197
EPA's determination that the Settling Defendant failed to implement

a provision of the Work in an adequate or timely manner as

arbitrary and capricious or otherwise not in accordance with lav.

Such dispute shall be resolved on the administrative record. Costs

incurred by the United States in performing the Work pursuant to

this Paragraph shall be considered Future Response Costs that

Settling Defendant shall pay pursuant to Section XVII

(Reimbursement of Response Costs).

86. Notwithstanding any other provision of this Consent

Decree, the United States retains all authority and reserves all

rights to take any and all response actions authorized by lav.

XXIII. COVENANTS BY SETTLING DEFENDANT

• . ; 87. Settling Defendant hereby covenants not to sue and agree

not to assert any claims or causes of action against the United

States with respect to the Site or this Consent Decree, including,

but not limited to, any direct or indirect claim for reimbursement

from the Hazardous Substance Superfund (established pursuant to the

Internal Revenue Code, 26 U.S.C. § 9507) through CERCLA Sections

106(b)(2) , ill, 112, 113 or any other provision of law, any claim

against any department, agency or instrumentality of the United

States Under CERCLA Sections 107 or 113 related to the Site, or any

claims arising out of response activities at the Site. However,

64

001198
the Settling Defendant reserves, and this Consent Decree is without

prejudice to, actions against the United States based on negligent

actions taken directly by the United States (not including

oversight or approval of the Settling Defendant plans or

activities) that are brought pursuant to any statute other than

CERCLA and for which the waiver of sovereign immunity is found in a

statute other than CERCLA. Nothing in this consent Decree shall be

deemed to constitute preauthorization of a claim within the meaning

of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R.

S 300.700(d) .

XIIV. EFFECT OF SETTLEMENT? CONTRIBUTION PROTECTION

88. Nothing in this Consent Decree shall be construed to

create any rights in, or grant any cause of action to, any'person

riot a party to this Consent Decree. The preceding sentence shall

not be construed to waive or nullify any rights that any person not

a signatory to this decree may have under applicable law. Each of

the Parties expressly reserves any and all rights (including, but

not limited to, any right to contribution), defenses, claims,

demands, and causes of action which each party may have with

respect to any matter, transaction, or occurrence relating in any

way to the Site against any person not a party hereto.

89. with regard to claims for contribution against Settling

Defendant for Matters Addressed in this Consent Decree, the Parties

65

001199
hereto agree that the Settling Defendant is entitled to such

protection from contribution actions or claims as is provided by

CERCLA Section 113(f)(2) , 42 U.S.C. § 9613(f)(2) .

90. The Settling Defendant agrees that with respect to any

suit or claim for contribution brought by them for matters related

to this Consent Decree they will notify the United States in

writing no later than 60 days prior to the initiation of such suit

or claim. The Settling Defendant also agrees that with respect to

any suit or claim for contribution brought against them for matters

related to this Consent Decree they will notify in writing the

United States within 10 days of service of the complaint on them.

In addition, Settling Defendant shall notify the United States

within 10 days of service or receipt of any Motion for Summary

Judgment and within 10 days of receipt of any order from a court

setting a case for trial.

91. In any subsequent administrative or judicial proceeding

initiated by the United States for injunctive relief, recovery of

response costs, or other appropriate relief relating to the Site,

Settling Defendant shall not assert, and may not maintain, any

defense or claim based upon the principles of waiver, res judicata.

collateral estoppel, issue preclusion, claim-splitting, or other

defenses based upon any contention that the claims raised by the

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United States in the subsequent proceeding were or should have been

brought in the instant case; provided, however, that nothing in

this Paragraph affects the enforceability of the covenants not to

sue set forth in. Section XXII (Covenants Not to Sue by Plaintiff).

XXV. ACCESS TO INFORMATION

92. Settling Defendant shall provide to EPA upon request,

copies of all documents and information within its possession or

control or that of its 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

related to the Work. Settling Defendant shall also make available

to!EPA for purposes of investigation, information gathering, or

testimony, its employees, agents, or representatives with knowledge

of relevant facts concerning the performance of the Work.

93. a. Settling Defendant may assert business confidentiality

claims covering part or all of the documents or information

submitted to Plaintiff under this 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) . Documents or

information determined to be confidential by EPA will be afforded

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001201
the protection specified in 40 C.F.R. Part 2, Subpart B. If no

claim of confidentiality accompanies documents or information when

they are submitted to EPA or if EPA has notified Settling Defendant

that the documents or information are not confidential under the

standards of Section 104 (e) (7) of CERCLA, the public may be given

access to such documents or information without further notice to

Settling Defendant.

b. The Settling Defendant may assert that certain

documents, records and other information are privileged under the

attorney-client privilege or any other privilege recognized by

federal law. If the Settling Defendant asserts such a privilege,

it shall provide the Plaintiff with the following: (1) the title

of the document, record, or information; (2) the date of the

document, record, or information; (3) the name and title of the

author of the document, record, or information; (4) the name and

title of each addressee and recipient; (5) a description of the

contents of the document, record, or information: and (6) the

privilege asserted by Settling Defendant. However, no documents,

reports or other information created or generated pursuant to the

requirements of the Consent Decree shall be withheld on the grounds

that they are privileged.

94. No claim of confidentiality shall be made with respect to

any data, including, but not limited to, all sampling, analytical,

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001202
monitoring, hydrogeologic, scientific, chemical, or engineering

data, or any other documents or information evidencing conditions

at or around the Site.

XXVI. RETENTION OF RECORDS

95. Until 10 years after the Settling Defendant's receipt of

EPA's notification pursuant to Paragraph 48.b of Section XV

(Certification of Completion), Settling Defendant shall preserve

and retain all records and documents now in its possession or

control or which come into its possession or control that relate in

any manner to the performance of the Work or liability of any

person for response actions conducted and to be conducted at the

Site, regardless of any corporate retention policy to the contrary.

Until 10 years after the Settling Defendant's receipt of EPA's

notification pursuant to Paragraph 48.b of Section XV

(Certification of Completion), Settling Defendant shall also

instruct their contractors and agents to preserve all documents,

records, and information of whatever kind, .nature or description

relating to the performance of the Work.

96. At the conclusion of this document retention period,

Settling Defendant shall notify the United States at least 90 days

prior to the destruction of any such records or documents, and,

upon request by the United States, Settling Defendant shall deliver

69

001203
any such records or documents to EPA. The Settling Defendant may

assert that certain documents, records and other information are

privileged under the attorney-client privilege or any other

privilege recognized by federal law. If the Settling Defendant

asserts such a privilege, they shall provide the Plaintiff with the

following: (1) the title of the document, record, or information;

(2) the date of the document, record, or information; (3) the name

and title of the author of the document, record, or information;

(4) the name and title of each addressee and recipient; (5) a

description of the subject of the document, record, or information:

and (6) the privilege asserted by Settling Defendant. However, no

documents, reports or other information created or generated

pursuant to the requirements of the Consent Decree shall be

withheld on the grounds that they are privileged.

97. Settling Defendant hereby certifies that it has not

altered, mutilated, discarded, destroyed or otherwise disposed of

any records, documents or other information relating to its

potential liability regarding the Site since notification of

potential liability by the United States or the State or the filing

of suit against it regarding the Site and that it has fully

complied with any and all EPA requests for information pursuant to

Section 104(e) and 122(e) of CERCLA and Section 3007 of RCRA.

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001204
XT7II. NOTICES AND SUBMISSIONS

98. Whenever, under the terms of this Consent Decree, written

notice is required to be given or a report or other document is

required to be sent by one party to another/ it shall be directed

to the individuals at the addresses specified below, unless those

individuals or their successors give notice of a change to the

other parties in writing. Written notice as specified herein shall

constitute complete satisfaction of any written notice requirement

of the Consent Decree with respect to the United States, EPA, and

the Settling Defendant, respectively.

A3 to the united States:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611

Ben.Franklin Station Washington, D.C. 20044

Re: DJ # ___________

and

Director, Hazardous Waste Management Division

United states Environmental Protection Agency

Region 6 1445 Ross Avenue, 12th floor

Dallas, TX 75202

As to EPA:

Kathleen Aisling

EPA Project Coordinator

United States Environmental Protection Agency

Region 6 1445 Ross Avenue, 12th floor

Dallas, TX 75202

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001205
Mel McFarland Assistant Regional Counsel

United States Environmental Protection Agency

Region 6 1445 Ross Avenue, 12th floor

Dallas, TX 75202

A8 to the Settling Defendant:

Duane Reel City Engineer

Settling Defendant's Project Coordinator

P.O. Box 126

Jacksonville, Arkansas 72076

XXVIII. EFFECTIVE DATE

99. The effective date of this Consent Decree shall be the

date upon which this Consent Decree is entered by the Court, except

as otherwise provided herein.

" • '. XXIX. RETENTION OF JURISDICTION

100. This Court retains jurisdiction over both the subject

matter of this Consent Decree and the Settling Defendant for the

duration of the performance of the terms and provisions of this

Consent Decree for the purpose of enabling any of the Parties to

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 to resolve disputes in accordance

with Section XX (Dispute Resolution) hereof.

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001206
XXX. APPENDICES

101. The following appendices are attached to and

incorporated into this Consent Decree:

"Appendix A" is the ROD.

"Appendix B" is the SOW.

"Appendix C" is the description of the Site.

XXXI. COMMUNITY RELATIONS

102. Settling Defendant shall propose to EPA its

participation in the community relations plan to bo developed by

EPA. EPA will determine the appropriate role for the Settling

Defendant under the Plan. Settling Defendant shal]l also cooperate

with EPA in providing information regarding the Work to the public.

As requested by EPA, Settling Defendant shall participate in the

preparation of such information for dissemination t:o the public and

in public meetings which may be held or sponsored by EPA to explain

activities at or relating to the Site.

XXXII. MODIFICATION

103. Schedules specified in this Consent Decree for

completion of the Work may be modified by agreement of EPA and the

Settling Defendant. All such modifications shall be made in

writing.

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001207
104. No material modifications shall be made to the SOW

without written notification to and written approval of the United

States, Settling Defendant, and the Court. Prior to providing its

approval to any modification, the United States will provide the

State with a reasonable opportunity to review and comment on the

proposed modification. Modifications to the SOW that do not

materially alter that document may be made by written agreement

between EPA, after providing the state with a reasonable

opportunity to review and comment on the proposed modification, and

the Settling Defendant.

105. Nothing in this Decree shall be deemed to alter the

Court's power to enforce, supervise or approve modifications to

this Consent Decree.

XXXIII. LODGING MTO OPPORTUNITY FOR PUBLIC COMMENT

106. This Consent Decree shall be lodged with the Court for a

period of not less than thirty (30) days for public notice and

comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.

 9622(d)(2) , and 28 C.F.R. § 50.7 . The United States reserves the

right to withdraw or withhold its consent if the comments regarding

the Consent Decree disclose facts or considerations which indicate

that the Consent Decree is inappropriate, improper, or inadequate.

Settling Defendant consents to the entry of this Consent Decree

without further notice.

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001208
107. 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

108. The undersigned representative of the Settling Defendant

to this Consent Decree and the Assistant Attorney General for

Environment and Natural Resources of the Department of Justice

certifies that he or she is fully authorized to enter into the

terms and conditions of this Consent Decree and to execute and

legally bind such party to this document.

 . . 109. Settling Defendant hereby 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 the

Settling Defendant in writing that it no longer supports entry of

the Consent Decree.

110. Settling Defendant shall identify, on the attached

signature page, the name and address of an agent who is authorized

to accept service of process by mail on its behalf with respect to

all matters arising under or relating to this Consent Decree.

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001209
Settling Defendant hereby agrees to accept service in that manner

and to waive the formal service requirements set forth in Rule 4 of

the Federal Rules of Civil Procedure and any applicable local rules

of this Court, including, but not limited to, service of a summons.

SO ORDERED THIS &tt) DAY OF

7s/ ELSUANE T.ROY

United States District Judge

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001210
THE UNDERSIGNED PARTIES enter into this Consent Decree in the

matter of United States v. city of Jacksonville, relating

to the Jacksonville Municipal Landfill Superfund Site.

FOR THE UNITED STATES OF AMERICA

Date: /

Lois/J. Schi/ffer

Acting Assistant Attorney General

Environment and Natural Resources

Division

U.S. Department of Justice Washington, D.C. 20530

Samuel/D. filesi

Environmental Enforcement Section

Environment and Natural Resources

Division

U.S. Department of Justice Washington, D.C. 20530

Doug Chavis Assistant United States Attorney

Eastern District Arkansas

U.S. Department of Justice

P. o. Box 869

Little Rock, AR 72203

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001211
Jacksonville Municipal Landfill Superfund Site

FOR THE UNITED STATES O7 AXBSXC&

Herman Assistant Administrator for

Enforcement

U.S. Environmental Protection Agency

401 M Street, S.W. Washington, O.C. 20460

Steve Botts Office of Enforcement

U.S. Environmental Protection

Agency

401 M Street, S.W. Washington, O.c. 20460

JfneN. Saginaw

Regional Administrator,

Region 6 U.S. Environmental Protection

Agency

1445 Ross Avenue, 12th floor

Dallas, TX 75202

Mel A. McFarland Assistant Regional Counsel

U.S. Environmental Protection

Agency

Region 6 1445 Ross Avenue, 12th flooir

Dallas, TX 75202

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001212
THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of United States v. City of Jacksonville, relating

to the Jacksonville Municipal Landfill Superfund Site.

FOR THE CITY OF JACKSONVILLE

Date:

Tommy M. swam / Mayor, City of Jacksonville

P.O. Box 126

Jacksonville, Arkansas 72076

Date: M. Leonard X—^ City clerk, City of Jacksonville

P. 0. Box 126

Jacksonville, Arkansas 72076

Agent Authorized to Accept Service on Behalf of Above-signed

Party:

Name: Tommy Swaim_______________ Title: Mavor. Citv of Jacksonville

Address: P. O. Box 126. Jacksonville. Arkansas 72076

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001213