M JCI

SDMS DocID 2024793

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, )

)

)

Plaintiff, )

)

V. ) CIVIL ACTION NO. 92-04-JJF

)

KOWINSKY FARMS, INC., )

McCRORY PARENT CORP., )

RAPID-AMERICAN CORPORATION, )

NABISCO BRANDS, INC. )

REICHHOLD CHEMICALS, INC., )

and ALBERTA F. SCHMIDT, )

)

)

Defendants. )
-11-

TABLE OF CONTENTS

I. BACKGROUND 1

II. JURISDICTION 5

III. PARTIES BOUND 5

IV. DEFINITIONS 6

V. GENERAL PROVISIONS 13

VI. PERFORMANCE OF THE WORK BY NON-OWNER

SETTLING DEFENDANTS AND PLACEMENT OF DEED

RESTRICTIONS BY OWNER SETTLING DEFENDANTS ... . 19

VII. ADDITIONAL RESPONSE ACTIONS 28

VIII. U.S. EPA PERIODIC REVIEW 30

IX. QUALITY ASSURANCE 32

X. ACCESS 38

XI. REPORTING REQUIREMENTS 40

XII. SUBMISSIONS REQUIRING AGENCY APPROVAL 44

XIII. PROJECT COORDINATOR/REMEDIAL PROJECT MANAGER ... . 47

XIV. ASSURANCE OF ABILITY TO COMPLETE WORK 49

XV. CERTIFICATION OF COMPLETION 50

XVI. EMERGENCY RESPONSE 55

XVII. REIMBURSEMENT OF RESPONSE COSTS 56

XVIII. INDEMNIFICATION AND INSURANCE 61

XIX. FORCE MAJEURE 66

XX. DISPUTE RESOLUTION 69

XXI. STIPULATED PENALTIES 73

XXII. COVENANTS NOT TO SUE BY PLAINTIFF 78

XXIII. COVENANTS BY SETTLING DEFENDANTS 85
-111-

XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION . . 86

XXV. ACCESS TO INFORMATION 87

XXVI. RETENTION OF RECORDS 89

XXVII. NOTICES AND SUBMISSIONS 90

XXVIII. EFFECTIVE AND TERMINATION DATES 93

XXIX. RETENTION OF JURISDICTION 94

XXX. APPENDICES 94

XXXI. COMMUNITY RELATIONS 95

XXXII. MODIFICATION 95

XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ... 96

XXXIV. SIGNATORIES/SERVICE 97
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, )

)

)

Plaintiff, )

)

V. ) CIVIL ACTION NO. 92-04- JJF

)

KOWINSKY FARMS, INC., )

McCRORY PARENT CORP . , )

RAPID-AMERICAN CORPORATION, )

NABISCO BRANDS, INC. )

REICHHOLD CHEMICALS, INC., )

and ALBERTA F. SCHMIDT, )

)

)

Defendants. )

CONSENT DECREE

I. BACKGROUND

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

behalf of the Administrator of the United States Environmental

Protection Agency ("EPA") , filed a complaint in this matter

pursuant to Sections 106, 107 and 113 (b) of the Comprehensive

Environmental Response, Compensation, and Liability Act

("CERCLA"), 42 U.S.C. §§ 9606, 9607 and 9613(b).

B. The United States in its complaint seeks:

(1) reimbursement of costs incurred by EPA and the United States

Department of Justice for response actions at the Coker's

Sanitation Service Landfills Superfund Site (as defined below) in

Cheswold Township, Kent County, Delaware, together with accrued
2

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

Defendants at the Site in conformity with the Record of Decision

(as defined below) and the National Oil and Hazardous Substances

Pollution Contingency Plan, 40 C.F.R. Part 300 (as amended)

("NCP"); (3) a declaration of Defendants' liability for further

response costs; and (4) such other relief as the Court finds

appropriate.

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

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

Delaware (the "State") on April 9, 1991 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 settlement. By letter dated

May 13, 1991, the State informed EPA that it did not intend to be

a signatory to this Consent Decree.

D. In accordance with Section I22(j)(l) of CERCLA,

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

and the National Oceanic and Atmospheric Administration of the

Department of Commerce of negotiations with potentially

responsible parties regarding the release of hazardous substances

that may have resulted in injury to the natural resources under

Federal trusteeship and encouraged the trustees to participate in

the negotiation of this Consent Decree. This Consent Decree

provides for certain actions with respect to such natural

resources.
3

E. The Defendants that have entered into this Consent

Decree ("Settling Defendants") do not admit any liability to the

Plaintiff arising out of the transactions or occurrences alleged

in the complaint.

F. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA

placed the Site on the CERCLA 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. 27,620;

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

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

of the Settling Defendants entered into an Administrative Order

on Consent with EPA and commenced on December 30, 1987, a

Remedial Investigation and Feasibility Study ("RI/FS") for the

Site pursuant to the NCP;

H. Certain of the Settling Defendants completed a Remedial

Investigation ("RI") Report on December 28, 1989 and a

Feasibility Study ("FS") Report on August 17, 1990;

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

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

plan for remedial action on August 22, 1990, in a major local

newspaper of general circulation. EPA provided an opportunity

for written and oral comments from the public on the proposed

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

is available to the public as part of the administrative record

upon which the Regional Administrator based the selection of the

response action.
4

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 28, 1990, on which the State has

given its concurrence. The ROD includes a summary of responses

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

in accordance with Section 117(b) of CERCLA, 42 U.S.C. § 9617(b).

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

believes that the Work (as defined below) will be properly and

promptly conducted by the Non-Owner Settling Defendants, the

placement of deed restrictions required by the ROD will be

properly and promptly implemented by the Owner Settling

Defendants, and access to the Site will be provided by the Owner

Settling Defendants as set forth in Section X (Access) of this

Consent Decree.

L. The Remedial Action selected by the ROD, the Work to be

performed by the Non-Owner Settling Defendants, the placement of

deed restrictions by the Owner Settling Defendants, and the

provision of access to the Site by the Owner Settling Defendants

shall constitute a response action taken or ordered by the

President solely for the purposes of Section 113(j) of CERCLA,

42 U.S.C. § 9613(j).

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

Consent Decree finds, that implementation of this Consent Decree

will expedite the cleanup of the Site and will avoid prolonged

and complicated litigation between the Parties, and that this

Consent Decree is fair, reasonable, and in the public interest.
5

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

II. JURISDICTION

A. This Court has jurisdiction over the subject matter of

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

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

jurisdiction over the Settling Defendants. Solely for the

purposes of this Consent Decree and the underlying complaints,

Settling Defendants waive all objections and defenses that they

may have to jurisdiction of the Court or to venue in this

District. Settling Defendants shall not challenge the terms of

this Consent Decree or this Court's jurisdiction to enter and

enforce this Consent Decree.

III. PARTIES BOUND

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

United States and upon Settling Defendants and their heirs,

agents, successors and assigns. Any change in ownership or

corporate status of a Settling Defendant including, but not

limited to, any transfer of assets or real or personal property

shall in no way alter such Settling Defendant's responsibilities

under this Consent Decree.

B. Non-Owner Settling Defendants shall provide a copy of

this Consent Decree to each contractor hired to perform the Work

required by this Consent Decree and to each person representing

any Non-Owner Settling Defendant with respect to the Site or the
6

Work and shall condition all contracts entered into hereunder

upon performance of the Work in conformity with the terms of this

Consent Decree. Non-Owner Settling Defendants or their

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. Non-Owner Settling Defendants

shall nonetheless be responsible for ensuring that their

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 Non-Owner Settling Defendants

within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C.

S 9607(b)(3).

IV. DEFINITIONS

A. 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 used in this Consent Decree or in the

appendices attached hereto and incorporated hereunder, the

following definitions shall apply:

1. "CERCLA" shall mean the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, as amended,

42 U.S.C. §S 9601 et seq.
7

2. "Consent Decree" shall mean this Decree and all

appendices attached hereto. In the event of conflict between

this Decree and any appendix, this Decree shall control.

3. "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.

4. "Duly Authorized Representative" shall mean a person

designated in accordance with the procedures set forth in

40 C.F.R. § 270.11(b), except that the words "Remedial Project

Manager" shall be substituted for the word "Director" in

40 C.F.R. § 270.11(b)(3). Each of the Non-Owner Settling

Defendants hereby designates a Vice President of Clean Sites,

Inc., 1199 N. Fairfax St., Alexandria, Virginia 22314, whose

position is commensurate with the requirements of 40 C.F.R.

§ 270.11(b), as its Duly Authorized Representative.

5. "DNREC" shall mean the Delaware Department of Natural

Resources and Environmental Control and any successor departments

or agencies of the State.

6. "EPA" shall mean the United States Environmental

Protection Agency and any successor departments or agencies of

the United States.

7. "Future Liability" shall mean any liability of the

Settling Defendants relating to the Site arising under Sections
8

106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), other

than: (a) liability for Past and Future Response Costs, as

defined herein, incurred by the United States with respect to the

Site and (b) liability for completion of the Remedial Action

required under the ROD, including attainment of any Performance

Standards as set forth in Appendix C.

8. "Future Response Costs" shall mean all costs, including,

but not limited to, direct and indirect costs, that the United

States incurs in overseeing the Work, including, but not limited

to, payroll costs, contractor costs, travel costs, laboratory

costs, the costs incurred pursuant to Paragraph F of Section VI

(Performance of the Work by Non-Owner Settling Defendants and

Placement of Deed Restrictions by Owner Settling Defendants),

Section VII (Additional Response Actions), Section X (Access),

and Section XVI (Emergency Response), costs incurred by the

United States in connection with any periodic review conducted

pursuant to Section VIII (U.S. EPA Periodic Review) of this

Consent Decree, and the costs of reviewing or developing plans,

reports and other items pursuant to this Consent Decree,

verifying the Work, or otherwise implementing or enforcing this

Consent Decree, including Section VI.G. Future Response Costs

shall also include all costs which have not been reimbursed,

including direct and indirect costs, incurred by the United

States in connection with the Site between October 24, 1990 and

the effective date of this Consent Decree together with interest

on any late payments.
9

9. "National Contingency Plan" or "NCP" shall mean the

National Oil and Hazardous Substances Pollution Contingency Plan

promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. S 9605,

codified at 40 C.F.R. Part 300, including, but not limited to,

any amendments thereto.

10. "Non-Owner Settling Defendants" shall mean those

Settling Defendants who are not owners of any of the property

constituting the Site. The Non-Owner Settling Defendants are

McCrory Parent Corp., Nabisco Brands, Inc., Rapid-American

Corporation, and Reichhold Chemicals, Inc. McCrory Parent Corp.

is an affiliate and a successor, in part, of Rapid-American

Corporation.

11. "Operation and Maintenance" or "O & M" shall mean all

activities required to maintain the effectiveness of the Remedial

Action, including monitoring, as required under Appendix D and

the Operation and Maintenance Plan approved or developed by EPA

pursuant to this Consent Decree.

12. "Owner Settling Defendants" shall mean those Settling

Defendants who are owners of any of the property constituting the

Site. The Owner Settling Defendants are Kowinsky Farms, Inc. and

Alberta F. Schmidt.

13. "Paragraph" shall mean a portion of this Consent Decree

identified by an arabic numeral or an upper case letter.

14. "Parties" shall mean the United States and the Settling

Defendants.

15. "Past Response Costs" shall mean all costs, including,
10

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

incurred with regard to the Site prior to October 24, 1990,

excluding, however, any oversight costs which Nabisco Brands,

Inc., Rapid-American Corporation (and successor McCrory Parent

Corp.)/ and Reichhold Chemicals, Inc. are obligated to pay

pursuant to the Administrative Order on Consent, EPA Docket No.

III-88-16-DC, previously entered into by such parties (other than

McCrory Parent Corp.) for performance of the RI/FS and the

Administrative Order on Consent, EPA Docket No. III-88-44-DC,

previously entered into by such parties (other than McCrory

Parent Corp.) for the removal of drums at the Site.

16. "Performance Standards" shall mean those cleanup

standards, standards of control, and other substantive

requirements, criteria or limitations that are used to determine

whether the objectives of the ROD and this Consent Decree are

being achieved as set forth in Appendix C or are developed by the

Non-Owner Settling Defendants and approved by EPA during the

Remedial Design. To the extent there is any inconsistency

between the Performance Standards and the ROD, the terms and

conditions of the ROD shall govern.

17. "Plaintiff" shall mean the United States.

18. "RCRA" shall mean the Solid Waste Disposal Act, as

amended, 42 U.S.C. §§ 6901 et seq. (also known as the Resource

Conservation and Recovery Act).

19. "Record of Decision" or "ROD" shall mean the EPA Record

of Decision relating to the Site set forth in Appendix A hereto
11

and signed on September 28, 1990, by the Regional Administrator,

EPA Region III, and all attachments thereto.

20. "Remedial Action" shall mean all activities, as defined

by Section 101(24) of CERCLA, 42 U.S.C. S 9601(24), except for

Remedial Design and Operation and Maintenance, to be undertaken

by the Non-Owner Settling Defendants to implement both the ROD

and the final plans and specifications submitted by the Non-Owner

Settling Defendants pursuant to the Remedial Design Work Plan and

approved by EPA.

21. "Remedial Action Work Plan" shall mean a plan for

Remedial Action, including a schedule for implementation of

Remedial Action, submitted by the Non-Owner Settling Defendants

and approved by EPA pursuant to Section VLB of this consent

Decree.

22. "Remedial Design" shall mean those activities to be

undertaken by the Non-Owner Settling Defendants pursuant to the

Remedial Design Work Plan to develop the final plans and

specifications for the Remedial Action as specified in the ROD,

in accordance with Appendix C, and the monitoring set forth in

Appendix D.

23. "Remedial Design Work Plan" shall mean a plan for

Remedial Design, including a schedule for remedial design work,

submitted by the Non-Owner Settling Defendants and approved by

EPA pursuant to Section VLB of this Consent Decree.

24. "Section" shall mean a portion of this Consent Decree

identified by a roman numeral.
12

25. "Settling Defendants" shall mean the Non-Owner Settling

Defendants and the Owner Settling Defendants.

26. "Site" shall mean the Coker's Sanitation Service

Landfills Superfund site, encompassing approximately 25 acres,

located along Route 152 approximately 1.3 miles northwest of

Cheswold in Kent County, Delaware and depicted more particularly

on the maps attached as Appendix B.

27. "State" shall mean the State of Delaware.

28. "Supervising Contractor" shall mean the contractor

retained by the Non-Owner Settling Defendants to carry out the

Work under this Consent Decree and accepted by EPA pursuant to

Section VI.A.

29. "United States" shall mean the United States of

America.

30. "Waste Material" shall mean (1) any "hazardous

substance" under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14)

and (2) any pollutant or contaminant under Section 101(33) of

CERCLA, 42 U.S.C. § 9601(33).

31. "Work" shall mean all activities the Non-Owner Settling

Defendants are required to perform under this Consent Decree,

including, but not limited to, the monitoring set forth in

Appendix D, except those activities required by Section XXVI

(Retention of Records).
13

V. GENERAL PROVISIONS

A. Objectives of the Parties

The objectives of the Parties in entering into this Consent

Decree are (i) to protect public health and welfare and the

environment from releases or threatened releases of Waste

Material from the Site by the placement by the Owner Settling

Defendants of deed restrictions on the property constituting the

Site as required by the ROD and by the design and implementation

of the Remedial Action and Operation & Maintenance at the Site by

the Non-Owner Settling Defendants and (ii) to reimburse all

response costs of the Plaintiff.

B. Commitments by Settling Defendants

1. Non-Owner Settling Defendants shall finance and

perform the Work in accordance with CERCLA, the NCP, and this

Consent Decree, including, but not limited to, Appendices C and

D, the ROD, and all standards, specifications, and schedules set

forth in or developed pursuant to this Consent Decree. Non-Owner

Settling Defendants shall also reimburse the United States for

Past Response Costs, Future Response Costs, and the Federal

Trustees' Costs (as defined in Section XVII.B) as provided in

this Consent Decree.

2. The obligations of the Non-Owner Settling

Defendants to finance and perform the Work and to pay amounts

owed the United States under this Consent Decree are joint and

several. In the event of the insolvency or other failure of any

one or more of the Non-Owner Settling Defendants to implement the
14

requirements of this Consent Decree, the remaining Non-Owner

Settling Defendants shall complete all such requirements. In

addition, in accordance with Section XXII.G, if, subsequent to

the entry of this Consent Decree, the United States receives

information, in whole or in part, that indicates that either or

both of the Owner Settling Defendants had materially greater

financial resources and/or assets than such Owner Settling

Defendant(s) represented to the United States as of the entry of

this Consent Decree, then such Owner Settling Defendant(s) will

also be jointly and severally liable with respect to the

obligations to finance and perform the Work and to pay amounts

owed the United States under this Consent Decree.

3. Owner Settling Defendants shall place deed

restrictions on the Site in accordance with CERCLA, the NCP, and

this Consent Decree, including, but not limited to, Appendix C,

the ROD, and all standards, specifications, and schedules set

forth in or developed pursuant to this Consent Decree. The Owner

Settling Defendants shall perform the activities required under

Paragraph E, below, of this Section V and provide access to the

Site as more specifically set forth in Section X (Access) of this

Consent Decree. Settling Defendant Kowinsky Farms, Inc.

acknowledges that it has access rights to its property from

County Road 152 and that such access rights shall be fully

available to the United States, the State and all Settling

Defendants for all matters under this Consent Decree. Settling

Defendant Kowinsky Farms, Inc. shall have the obligation of
15

securing any additional properties owned by Joseph S. Kowinsky,

Jr. or Fred Kowinsky within a reasonable distance adjacent to its

property that may be required to implement this Consent Decree.

C. Compliance With Applicable Law

All activities undertaken by Settling Defendants pursuant to

this Consent Decree shall be performed in accordance with the

requirements of all applicable federal and state laws and

regulations. The Settling Defendants 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

Appendix C to this Consent Decree. The United States has

determined that the activities conducted pursuant to this Consent

Decree, if approved by EPA, shall be considered to be consistent

with the NCP.

D. Permits

1. As provided in Section 121(e) of CERCLA, 42 U.S.C.

§ 9621(e), and 40 C.F.R. § 300.400(e), no permits shall be

required for any portion of the Work conducted entirely on-Site,

with the exception of any permits required by the State

Regulations Governing the Construction of Water Wells promulgated

by DNREC for the placement and installation of any new water

wells and any new monitoring wells. However, the Non-Owner

Settling Defendants shall ensure that all portions of the Work

shall meet the substantive requirements of any applicable or

relevant and appropriate requirement subject to EPA's right of

review and approval. Where any portion of any off-Site Work
16

requires a federal, state, or local permit or approval, Non-Owner

Settling Defendants shall timely submit complete applications and

take all other actions necessary to obtain all such permits or

approvals.

2. The Non-Owner Settling Defendants may seek relief

under the provisions of Section XIX (Force Majeure) of this

Consent Decree for any delay in the performance of the off-Site

Work resulting from a failure to obtain, or a delay in obtaining,

any permit required for the off-Site Work, provided they have

submitted all required information in a timely manner.

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

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

or local statute, regulation or ordinance.

E. Notice of Obligations to Successors-in-Title

1. Within 15 days after the date of entry of this

Consent Decree, the Owner Settling Defendants shall record a

certified copy of this Consent Decree with the office of the

Recorder of Deeds, or other office where land ownership and

transfer records are maintained for real property, for Kent

County, Delaware. Thereafter, the Owner Settling Defendants

shall ensure that each deed, title, or other instrument of

conveyance for property included in the Site shall contain a

notice, as approved by EPA, stating that the property is subject

to this Consent Decree and any lien held by the United States

pursuant to Section 107(1) of CERCLA, 42 U.S.C. § 9607(1), and

shall reference the recorded location of the Consent Decree and
17

any restrictions applicable to the property under this Consent

Decree.

2. Any deed, title, easement, other instrument of

conveyance for, or any other instrument granting a leasehold

interest in, property included in the Site currently owned and/or

controlled by any Settling Defendant, shall include a covenant

enforceable under State law that (i) the United States and its

representatives shall have access at all reasonable times to the

Site for purposes of effectuating and monitoring compliance with

the terms of this Consent Decree; (ii) the grantee shall not

interfere with, obstruct or disturb the performance, support or

supervision of any remedial or response actions taken or to be

taken at the Site, including any Operation and Maintenance

activities and (iii) the grantee shall inform any person or

entity that subsequently acquires any title, easement, leasehold

or other interest in the Site or any portion thereof from such

grantee of the requirements, conditions and operative effect of

Section X (Access).

3. The obligations of each Owner Settling Defendant

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

and the related covenants set forth in Section V.E.2 above, and

the implementation of institutional controls as provided in the

ROD and Appendix C shall run with the land and be binding upon

any and all such Owner Settling Defendants and any and all

persons who subsequently acquire any such interest (hereinafter

"Successors-in-Title"). Within 15 days after the entry of this
18

Consent Decree, each Owner Settling Defendant shall record, in

full compliance with the requirements of State and local law, at

the office of the Recorder of Deeds for Kent County, Delaware, or

other office where land ownership and transfer records are

maintained for the property, a notice of obligation to provide

access and related covenants as more fully described in Paragraph

2 above.

4. Any Owner Settling Defendant and any Successor-inTitle shall, at least 30 days prior to the conveyance of any

interest in the property, give written notice of this Consent

Decree to the grantee and written notice to EPA and the Non-Owner

Settling Defendants' Project Coordinator of the proposed

conveyance, including the name and address of the grantee, the

proposed language which will implement the covenants described in

Paragraph 2 above, and the date on which notice of the Consent

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

conveyance, the Non-Owner Settling Defendants' obligations under

this Consent Decree shall continue to be met by the Non-Owner

Settling Defendants. 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 Non-Owner Settling

Defendants to comply with the Consent Decree.
19

VI. PERFORMANCE OF THE WORK BY NON-OWNER

SETTLING DEFENDANTS AND PLACEMENT OF DEED

RESTRICTIONS BY OWNER SETTLING DEFENDANTS

A. Selection of Contractors

1. All aspects of the Work to be performed by NonOwner Settling Defendants pursuant to Sections VI (Performance of

the Work by Non-Owner Settling Defendants and Placement of Deed

Restrictions by Owner Settling Defendants), VII (Additional

Response Actions), VIII (U.S. EPA Periodic Review), IX (Quality

Assurance), and XVI (Emergency Response) of this Consent Decree

shall be under the direction and supervision of the Supervising

Contractor. The Non-Owner Settling Defendants have selected, and

EPA has accepted, after a reasonable opportunity for review and

comment by the State, Clean Sites, Inc., 1199 N. Fairfax St.,

Alexandria, Virginia 22314, as the Supervising Contractor. If

at any time in the future Non-Owner Settling Defendants propose

to change a Supervising Contractor, Non-Owner Settling Defendants

shall give such notice to EPA, shall submit in writing the name,

title, and qualifications of any contractor proposed to be the

new Supervising Contractor, and shall obtain acceptance from EPA,

after a reasonable opportunity for review and comment by the

State, before the new Supervising Contractor performs, directs,

or supervises any Work under this Consent Decree.

2. EPA will notify Non-Owner Settling Defendants in

writing of its acceptance or disapproval of a proposed

replacement Supervising Contractor. If EPA disapproves of the

selection of any contractor as Supervising Contractor, Non-Owner
20

Settling Defendants shall submit to EPA the names of at least

three contractors, including the qualifications of each

contractor, that would be acceptable to them within 30 days of

receipt of EPA's disapproval of the contractor previously

selected. EPA will provide written notice of the names of the

contractor(s) that it accepts. Non-Owner Settling Defendants may

select any accepted contractor from that list and shall notify

EPA of the name of the contractor selected within 21 days of

EPA's designation of accepted contractors.

3. After the Remedial Design Work Plan or Remedial

Action Work Plan is approved and prior to commencement of any

Work thereunder, the Non-Owner Settling Defendants shall submit

to EPA for acceptance the names and qualifications of any

additional contractors and subcontractors. Non-Owner Settling

Defendants have selected, and EPA has accepted, ERM, Inc., 855

Springdale Drive, Exton, Pennsylvania 19341, as the entity

responsible for completion of Remedial Design submittals (the

"Remedial Design Professional"). The Remedial Design

Professional or the Supervising Contractor shall provide a

Professional Engineer or a qualified engineer under the

supervision of a Professional Engineer to be present at the Site

during construction to ensure that the Work is performed in

accordance with the approved Remedial Design submittal(s). EPA

retains the right to disapprove any additional contractors and

subcontractors selected to perform the Work. Within fourteen

(14) days of receipt by EPA of the names of the additional
21

contractors or subcontractors, EPA will notify Non-Owner Settling

Defendants of its acceptance or disapproval of the selected

additional contractors or subcontractors. If EPA disapproves any

additional contractor or subcontractor, Non-Owner Settling

Defendants may submit further information to EPA giving reasons

why the additional contractor or subcontractor should be

accepted. Within fourteen (14) days of the receipt of the notice

of disapproval, Non-Owner Settling Defendants shall notify the

United States of the name and qualifications of a replacement

additional contractor or subcontractor. If at any time during

the pendency of this Consent Decree a decision is made by NonOwner Settling Defendants to retain a substitute additional

contractor or subcontractor, selection of the substitute shall be

governed by the provisions of this Paragraph A.

B. Remedial Design/Remedial Action

1. Within 14 days after the effective date of this

Consent Decree, the Non-Owner Settling Defendants shall submit to

EPA for approval a work plan for the design of the Remedial

Action at the Site ("Remedial Design Work Plan"). The Remedial

Design Work Plan shall provide for the design of the remedy as

set forth in the ROD in accordance with Appendix C and provide

for the monitoring set forth in Appendix D and, upon its approval

by EPA, shall be incorporated into and become enforceable under

this Consent Decree. Within 14 days after the effective date of

this Consent Decree, the Non-Owner Settling Defendants shall

submit to EPA for review a Health and Safety Plan for field
22

design activities which conforms to the applicable Occupational

Safety and Health Administration and EPA requirements including,

but not limited to, 29 C.F.R. § 1910.120.

2. The Remedial Design Work Plan shall include plans,

schedules, and methodologies for implementation of all remedial

design and pre-design tasks including, but not limited to: (1) a

Remedial Design Permitting Requirements Plan; (2) a Remedial

Design Contingency Plan; and (3) a plan and schedule for the

preparation and submission of a final design submittal. In

addition, the Remedial Design Work Plan shall include an

expeditious schedule for completion of all components of the

Remedial Design.

3. Upon approval of the Remedial Design Work Plan and

acceptance of the Health and Safety Plan by EPA (after a

reasonable opportunity for review and comment by the State), NonOwner Settling Defendants shall implement the Remedial Design

Work Plan in accordance with the schedules and methodologies

contained therein. The Non-Owner Settling Defendants shall

submit all plans, submittals, and other deliverables required

under the approved Remedial Design Work Plan in accordance with

the approved schedule therein for review and approval pursuant to

Section XII (Submissions Requiring Agency Approval). Unless

otherwise directed by EPA, Non-Owner Settling Defendants shall

not commence activities at the Site prior to approval of the

Remedial Design Work Plan.
23

4. [Blank]

5. The final design submittal required under Paragraph

B.2, above, shall include, at a minimum, the following plans, as

well as expeditious schedules and specific methodologies for

implementation of these plans: (1) final designs and

specifications for the Remedial Action; (2) an Operation and

Maintenance Plan; (3) a Remedial Action Construction Plan and

schedule; (4) a Remedial Action Construction Quality Assurance

Plan (CQAP); (5) a Sampling and Analysis Plan (SAP) prepared in

accordance with Section IX (Quality Assurance), which shall

include, but not be limited to, a Field Sampling Plan (directed

at measuring progress towards meeting Performance Standards) and

a Quality Assurance Project Plan (QAPjP) ; (6) complete

specifications for preparation of a Health and Safety Plan for

field activities required by the final design; (7) complete

specifications for preparation of procedures and plans for the

decontamination of equipment and disposal of contaminated

materials (the "Decontamination Plan"); (8) a Remedial Action

Permitting Requirements Plan; and (9) a Remedial Action

Contingency Plan. Non-Owner Settling Defendants shall ensure

that specifications required under item (6), above,
24

as accepted by EPA, and under item (7), above, as approved by

EPA, are met by the Non-Owner Settling Defendants' contractor(s)

in preparing the Health and Safety Plan and the Decontamination

Plan, respectively. The Health and Safety Plan for field

activities shall be submitted by Non-Owner Settling Defendants

for acceptance and the Decontamination Plan shall be submitted by

Non-Owner Settling Defendants for approval in accordance with the

schedule set forth in the final design submittal, and upon

acceptance of such Health and Safety Plan and approval of the

Decontamination Plan, such Plans shall be incorporated in, and

enforceable as part of, the Remedial Action Work Plan. The CQAP,

which shall detail the approach to quality assurance during

construction activities at the Site, shall specify an Independent

Quality Assurance Team (IQAT) to conduct a quality assurance

program during the construction phase of the project. The IQAT

shall be responsible for examining and testing various materials,

procedures and equipment during implementation of the

construction activities. The IQAT shall perform on-Site

inspections of the Work to assess compliance with project

standards, verify that the Construction Quality Assurance Plan is

implemented, and report to the Non-Owner Settling Defendants and

EPA the results of all inspections.

6. Upon approval, approval upon conditions, or

modification by EPA, as provided in Paragraphs B and D of Section

XII, below, of all components of the final design submittal

(after reasonable opportunity for review and comment by the
25

State), the final design submittal shall serve as the Remedial

Action Work Plan and shall be incorporated into and become

enforceable as such under this Consent Decree. The Non-Owner

Settling Defendants shall implement the activities required under

the Remedial Action Work Plan in accordance with the schedules

and methodologies contained therein.

7. The Non-Owner Settling Defendants shall submit all

plans, submittals, or other deliverables required under the

Remedial Action Work Plan in accordance with the approved

schedule for review and approval pursuant to Section XII

(Submissions Requiring Agency Approval). Unless otherwise

directed by EPA or required under the Remedial Design Work Plan,

Non-Owner Settling Defendants shall not commence physical on-Site

activities at the Site prior to the date for commencement set

forth in the approved schedule in the Remedial Action Work Plan.

C. The Work performed by the Non-Owner Settling Defendants

pursuant to this Consent Decree shall, at a minimum, achieve the

Performance Standards, as set forth in Appendix C.

D. Non-Owner Settling Defendants acknowledge and agree that

nothing in this Consent Decree or the Remedial Design or Remedial

Action Work Plans constitutes a warranty or representation of any

kind by Plaintiff that compliance with the work requirements in

the Remedial Design and Remedial Action Work Plans will achieve

the Performance Standards as set forth in Appendix C. Such

compliance shall not foreclose Plaintiff from seeking compliance

with all terms and conditions of this Consent Decree.
26

E. Non-Owner Settling Defendants shall, prior to any offSite shipment of Waste 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 and to the EPA Remedial Project Manager of such

shipment of Waste Material. However, this notification

requirement shall not apply to any off-Site shipment when the

total volume of such shipment will not exceed 10 cubic yards.

1. The Non-Owner Settling Defendants shall include in

the written notification the following information: (a) the name

and location of the facility to which the Waste Materials are to

be shipped; (b) the type and quantity of the Waste Materials to

be shipped; (c) the expected schedule for the shipment of the

Waste Materials; and (d) the method of transportation. The NonOwner Settling Defendants shall notify the state in which the

planned receiving facility is located of major changes in the

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

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

another state.

2. The identity of the receiving facility and state

will be determined by the Non-Owner Settling Defendants following

the award of the contract for Remedial Action construction. The

Non-Owner Settling Defendants shall provide the written

notification required by this Section VI.E, including the

information required by Paragraph E.I, above, as soon as

practicable after the award of the contract, but in no case less
27

than 14 days before the Waste Materials are actually shipped.

F. In the event EPA determines that Non-Owner Settling

Defendants have failed to implement any provisions of the Work in

an adequate or timely manner, EPA shall give written notice of

such determination to the Non-Owner Settling Defendants and may

perform any and all portions of the Work as EPA determines

necessary. Non-Owner Settling Defendants may dispute EPA's

determination that the Non-Owner Settling Defendants failed to

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

only by invoking the procedures set forth in Paragraphs B through

D of Section XX (Dispute Resolution). 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 for the purposes of

Section XVII (Reimbursement of Response Costs).

•G. Within thirty (30) days after the effective date of this

Consent Decree, each of the Owner Settling Defendants shall

submit to EPA for approval and to the Non-Owner Settling

Defendants for review, proposed language for the deed

restrictions to be placed on that part of the Site owned by such

Owner Settling Defendant, respectively, to limit the future uses

of the property constituting the Site as provided by the ROD.

•The deed restrictions shall prohibit any type of activity that

could disturb the landfill surfaces or the underlying waste at

the Site, or in any way increase the risk of exposure to Site

contaminants. Within sixty (60) days of receipt by Owner
28

Settling Defendants of approval from EPA, each Owner Settling

Defendant shall record such deed restrictions in accordance with

applicable law in the office of the Recorder of Deeds, or other

office where land ownership and transfer records are maintained

for real property, for Kent County, Delaware, and any other

office as required by applicable law, and shall provide EPA with

a copy of the recorded deed and deed restrictions.

H. The Non-Owner Settling Defendants shall undertake

monitoring at Landfill No. 1 at the Site, as set forth in

Appendix D, in addition to the monitoring required by the ROD.

VII. ADDITIONAL RESPONSE ACTIONS

A. In the event that EPA or the Non-Owner Settling

Defendants determine(s) that additional response actions are

necessary to meet the Performance Standards or to carry out the

remedy selected in the ROD, notification of such additional

response actions shall be provided by EPA to the Non-Owner

Settling Defendants' Project Coordinator and the Owner Settling

Defendants or by Non-Owner Settling Defendants to the EPA

Remedial Project Manager and the Owner Settling Defendants.

B. Within 30 days (or such longer time as may be specified

by EPA) of receipt of notice from EPA pursuant to Paragraph A of

this Section that additional response actions are necessary, NonOwner Settling Defendants shall submit for approval by EPA a work

plan for the additional response actions. The plan shall conform

to the applicable requirements of Section VI (Performance of the
29

Work by Non-Owner Settling Defendants and Placement of Deed

Restrictions by Owner Settling Defendants). Upon approval of the

plan pursuant to Section XII (Submissions Requiring Agency

Approval), after reasonable opportunity for review and comment by

the State, Non-Owner Settling Defendants shall implement the plan

for additional response actions in accordance with the schedule

contained therein.

C. Any additional response actions that Non-Owner Settling

Defendants determine are necessary to meet the Performance

Standards 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, and, if authorized by EPA, shall

be completed by Non-Owner Settling Defendants in accordance with

plans, specifications, and schedules approved by EPA pursuant to

Section XII (Submissions Requiring Agency Approval).

D. If required by Sections 113(k)(2) or 117 of CERCLA, 42

U.S.C. §§ 9613(k)(2) or 9617, or the NCP, Settling Defendants and

the public will be provided with an opportunity to comment on any

additional response actions proposed pursuant to Section VII.B or

C, above, 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 III, or his/her delegate will determine in writing whether

additional response actions are appropriate.

E. Non-Owner Settling Defendants may invoke the procedures

set forth in Section XX (Dispute Resolution) to dispute EPA's
30

determination that additional response actions are necessary to

meet the Performance Standards or to carry out the remedy

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

to Section XX.D of this Consent Decree.

F. The Non-Owner Settling Defendants have agreed under

Paragraph H of Section VI of this Consent Decree to undertake

certain monitoring at Landfill No. 1 at the Site, as set forth in

Appendix D, in addition to the monitoring required by the ROD.

The United States Department of the Interior and the United

States National Oceanic and Atmospheric Administration of the

Department of Commerce (collectively, the "Federal Trustees11)

will advise the Non-Owner Settling Defendants and/or EPA if they

believe that the results of the monitoring show a need for any

additional remedial activity beyond that required by the ROD and

this Consent Decree. It is understood that the Non-Owner

Settling Defendants do not commit under this Consent Decree to

undertake any such remedial activity, but they do agree to

negotiate in good faith the undertaking of any such remedial

activity. If the Federal Trustees and the Non-Owner Settling

Defendants should fail to reach agreement concerning the

undertaking of such remedial activity, it is understood that the

Federal Trustees and the Non-Owner Settling Defendants reserve

their respective rights with respect to such remediation.

VIII. U.S. EPA PERIODIC REVIEW

A. Non-Owner Settling Defendants shall conduct any studies
31

and investigations as requested by EPA in order to permit EPA to

conduct reviews at least every five years as required by Section

121(c) of CERCLA, 42 U.S.C. § 9621(c), and any applicable

regulations. EPA will discuss with Non-Owner Settling Defendants

any request to conduct any such studies and investigations

pursuant to this Paragraph prior to requesting that the studies

and investigations be conducted.

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

42 U.S.C. §§ 96l3(k)(2) or 9617, or the NCP, Settling Defendants

and the public will be provided with an opportunity to comment on

any additional response actions proposed by EPA as a result of

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

42 U.S.C. § 9621(c), 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 III, or his/her delegate will determine

in writing whether additional response actions are appropriate.

C. If the Regional Administrator, EPA Region III, or

his/her 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 health and the environment, the Non-Owner

Settling Defendants shall undertake any additional response

actions EPA has determined are appropriate and that are not

barred by the Covenant Not to Sue provided in Section XXII of

this Consent Decree. However, the Non-Owner Settling Defendants
32

may invoke the procedures set forth in Section XX (Dispute

Resolution) to dispute (1) EPA's determination that the Remedial

Action is not protective of human health and the environment, (2)

EPA's selection of the additional response action ordered, or (3)

EPA's determination that the additional response action ordered

is not barred by the Covenant Not to Sue in Section XXII of this

Consent Decree. Such a dispute shall be resolved pursuant to

Paragraphs B through D of Section XX of this Consent Decree.

D. Within sixty (60) days after notice of EPA's

determination that additional response actions are necessary or

resolution of any dispute pursuant to Paragraph C of this Section

VIII, whichever is later, Non-Owner Settling Defendants shall

submit plans for design and implementation of any additional

response actions they are required to perform in accordance with

the applicable procedures set forth in Sections VI (Performance

of the Work by Non-Owner Settling Defendants and Placement of

Deed Restrictions by Owner Settling Defendants) and XII

(Submissions Requiring Agency Approval) and, upon approval of

such plans by EPA, shall complete the additional response action

in accordance with such plans and any schedules contained

therein.

IX. QUALITY ASSURANCE

A. While conducting all sample collection and analysis

activities required by this Consent Decree, the Non-Owner

Settling Defendants shall implement quality assurance, quality
33

control and chain of custody procedures in accordance with

"Guidance for Conducting Remedial Investigations and Feasibility

Studies under CERCLA", 1988 (OSWER Directive 9355.3-01); "EPA

NEIC Policies and Procedures Manual", May 1978, revised May 1986

(EPA 330/978-001-R); "Interim Guidelines and Specifications for

Preparing Quality Assurance Project Plans", December 1980 (QAMS

005/80); "A Compendium of Superfund Field Operations Methods",

December 1987 (OSWER Directive 9355-0-14); "Data Quality

Objectives for Remedial Response Activities", March 1987 (OSWER

Directive 9355.0-7B); EPA's "Guidelines and Specifications for

Preparing Quality Assurance Program Documentation", June 1, 1987;

and amendments to these guidelines, or as approved by EPA

pursuant to this Consent Decree.

B. The Non-Owner Settling Defendants shall consult with EPA

prior to all sampling and analysis required by this Consent

Decree and any subsequent EPA-approved plans prepared as part of

this Consent Decree. Further, the Non-Owner Settling Defendants

shall not commence sampling until EPA approves the Remedial

Design Work Plan and the Sampling and Analysis Plan (SAP).

C. In order to provide quality assurance and maintain

quality control regarding all samples collected pursuant to this

Consent Decree, the Non-Owner Settling Defendants shall:

1. Submit to the EPA Remedial Project Manager the

selected laboratory's(ies') Quality Assurance Program Plan (QAPP)

and their qualifications, which shall include, at a minimum,

previous certifications, Performance Evaluation (PE) results,
34

equipment lists and personnel resumes. The SAP must state that

all protocols described therein take precedence over protocols

listed in the Laboratory QAPP.

2. Ensure that EPA personnel and/or its authorized

representatives are allowed reasonable access to the

laboratory(ies), records and personnel utilized by the Non-Owner

Settling Defendants in implementing this Consent Decree.

3. Prepare a SAP, consisting of a Quality Assurance

Project Plan (QAPjP) and a Field Sampling Plan (FSP), for sample

collection, transportation, analysis, validation and reporting to

be conducted pursuant to this Consent Decree. The FSP shall

include, but not be limited to, a Sediment, Surface Water and

Ground Water Monitoring Plan providing for sampling of sediments

(as set forth in Appendix D), surface water (as set forth in the

ROD and Appendix D), ground water monitoring wells and, if

determined by EPA to be necessary, residential wells. The SAP

shall be submitted as part of the final design submittal, as

provided in Section VLB.5, above, to the EPA Remedial Project

Manager for review and approval prior to commencing sampling and

analysis. Each plan shall specify, for the phase of activity

addressed, the data quality objectives (DQOs), sample collection

and transportation procedures, data analysis methods, data

reduction, data review, and reporting procedures. Selection of

analytical methods shall be justified in conjunction with the

DQOs. The guidelines referenced in Paragraph A, above, shall be

followed in the preparation of the SAP; additional guidance may
35

be provided by EPA when applicable and/or requested by the NonOwner Settling Defendants.

4. Ensure that the laboratory(ies) analyzing samples

pursuant to this Consent Decree uses appropriate methods. If EPA

Contract Lab Program (CLP) methods are selected, the

laboratory(ies) shall use these methods and submit deliverables

delineated in the current "Statement of Work of the EPA Contract

Lab Program." If non-CLP methods are selected, all constituents

and physical parameters shall be analyzed using methods that are

specified (method and reference) and justified in the SAP. NonCLP methods shall be fully described in the QAPjP and approved by

the EPA Remedial Project Manager prior to conducting any sampling

and analysis. This description shall include, at a minimum, the

matrix, calibration, Quality Control (QC) samples (type and

frequency), corrective measures, and deliverables.

5. Ensure that the laboratory(ies) analyzing samples

pursuant to this Consent Decree agrees to demonstrate its

capability to perform the selected analyses by analyzing PE

samples, supplied by EPA. Analysis of PE samples may be waived

by EPA if the laboratory(ies) satisfactorily analyzed PE samples

using the selected methods within the six (6) months prior to

analysis conducted pursuant to this Consent Decree.

Documentation of such PE sample analysis shall be submitted to

the EPA Remedial Project Manager for verification.

6. At the request of EPA, conduct one or more audits

of the selected laboratory(ies) to verify analytical capability
36

and compliance with the SAP. Auditors shall conduct lab audits

at sometime during the time the laboratory(ies) is analyzing

samples collected pursuant to this Consent Decree. The lab audit

shall be conducted according to procedures available from the EPA

Environmental Services Division Quality Assurance Branch (QA

Branch). Audit reports shall be submitted to the EPA Remedial

Project Manager within fifteen (15) days of completion of the

audit. The Non-Owner Settling Defendants shall report serious

deficiencies, including all those which adversely impact data

quality, reliability or accuracy, and take action to correct such

deficiencies within twenty-four (24) hours of the time the NonOwner Settling Defendants know or should have known of the

deficiency.

7. Conduct at least one field audit (to be described

in the QAPjP) during initial sampling activities to verify that

field samplers are correctly following sampling procedures

described in the SAP. A report of the field audit shall be

submitted to the EPA Remedial Project Manager within fifteen (15)

days of completion of the audit. Non-Owner Settling Defendants

shall report the scope of the audit and the deficiencies noted,

and take action to correct such deficiencies within twenty-four

(24) hours of the time the Non-Owner Settling Defendants know or

should have known of the deficiency. EPA shall have the option

to audit any stage of the field activities.

8. Provide data validation of analyses completed by

the laboratory(ies), to determine data usability. If the data is
37

derived by CLP methods, the data validation shall be performed in

accordance with the most recent National Functional Guidelines

for Data Review and Region III Modifications (available from the

QA Branch). For non-CLP methods, the data validation shall be

performed as described in the SAP and in accordance with the QC

data validation criteria set forth in that method. The quality

assurance data validation reports shall be prepared using EPA

Region III format (available from the QA Branch) and shall be

submitted, along with the validated data summary sheets and the

laboratory sample results, to the EPA Remedial Project Manager.

D. At the request of EPA, the Non-Owner Settling Defendants

shall allow split or duplicate samples to be taken by EPA and/or

its authorized representatives, of any samples collected by the

Non-Owner Settling Defendants pursuant to this Consent Decree.

The Non-Owner Settling Defendants shall notify EPA not less than

thirty (30) days in advance of any such sample collection

activity. In addition, EPA shall have the right to take any

additional samples that EPA deems appropriate. At the request of

the Non-Owner Settling Defendants, EPA shall allow split and/or

duplicate samples to be taken by the Non-Owner Settling

Defendants and/or their authorized representatives of any sample

collected by EPA pursuant to this Consent Decree.

E. Notwithstanding any provision of this Consent Decree,

the United States hereby retains all of its information

gathering, inspection and enforcement authorities and rights

under CERCLA, RCRA and any other applicable statute or
38

regulation.

X. ACCESS

A. Commencing upon the date of lodging of this Consent

Decree, and to the extent the property is owned or access to the

property is controlled by Settling Defendants, the Settling

Defendants agree that the United States and its representatives,

including EPA and its contractors, shall have access at all

reasonable times to the Site and any other property under the

control of the Settling Defendants to which access is required

for the implementation of, and all Work under, this Consent

Decree, for the purposes of conducting any activity related to

this Consent Decree including, but not limited to:

1. Monitoring the Work;

2. Verifying any data or information submitted to the

United States;

3. Conducting investigations relating to contamination

at or near the Site;

4. Obtaining samples;

5. Assessing the need for, planning, or implementing

additional response actions at or near the Site;

6. Inspecting and copying records, operating logs,

contracts, or other documents maintained or generated by NonOwner Settling Defendants or their agents; and

7. Assessing Non-Owner Settling Defendants'

compliance with this Consent Decree.
39

Owner Settling Defendants agree that to the extent they own

or control access to the property constituting the Site or any

other property to which access is required for the implementation

of, and all Work under, this Consent Decree, the Non-Owner

Settling Defendants, and their representatives and contractors,

shall have the access set forth above.

B. 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

Defendants, Settling Defendants shall use best efforts to secure

from such persons access for themselves, as well as for the

United States and its representatives, including, but not limited

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

Consent Decree. 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 Non-Owner

Settling Defendants in writing that additional access beyond that

previously secured is necessary, Non-Owner Settling Defendants

shall promptly notify the EPA, and shall include in that

notification a summary of the steps Non-Owner Settling Defendants

have taken to attempt to obtain access. The United States may,

in its unreviewable discretion, assist Non-Owner Settling

Defendants in obtaining access. Non-Owner Settling Defendants

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 to
40

any properties other than properties presently owned by Owner

Settling Defendants.

C. 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

A. In addition to any other requirement of this Consent

Decree, Non-Owner Settling Defendants shall submit to EPA and the

State two (2) copies each of a written monthly progress report

that: (1) describes the actions which have been taken toward

achieving compliance with this Consent Decree during the previous

month; (2) includes all results of sampling and tests and all

other data received or generated by Non-Owner Settling Defendants

or their contractors or agents in the previous month; (3)

identifies all deliverables required by this Consent Decree that

were submitted during the previous month; (4) describes all

activities which are scheduled for the next month; (5) describes

project status and whether the Work is proceeding in compliance

with the schedule for implementation of the Work, including

problems that may affect the schedule and a description of

efforts made to mitigate any delays or anticipated delays; and

(6) describes all community relations activities undertaken by

the Non-Owner Settling Defendants during the previous month and

to be undertaken in the next month. Non-Owner Settling
41

Defendants shall submit these progress reports to EPA by the

fifteenth (15th) day of every month following the entry of this

Consent Decree until EPA notifies the Non-Owner Settling

Defendants pursuant to Paragraph A.2 of Section XV (Certification

of Completion). After EPA has notified the Non-Owner Settling

Defendants pursuant to Paragraph A.2 of Section XV (Certification

of Completion), the Non-Owner Settling Defendants shall submit

two (2) copies of a written progress report to EPA semi-annually

as set forth in the O & M Plan until EPA notifies the Non-Owner

Settling Defendants pursuant to Paragraph B.2 of Section XV

(Certification of Completion). If requested by EPA, Non-Owner

Settling Defendants shall also provide oral and/or written

briefings for EPA to discuss the progress of the Work.

B. The Non-Owner Settling Defendants shall notify EPA of

any change in the schedule described in the monthly progress

report for the performance of any activity, including, but not

limited to, implementation of work plans, no later than seven (7)

days prior to the performance of the activity. Notwithstanding

the foregoing, the Non-Owner Settling Defendants shall notify EPA

of any change in the schedule described in the monthly progress

report for the performance of data collection activities as soon

as possible, but in any event, no less than seven (7) days prior

to the performance of the activity, in order to allow EPA

sufficient time to schedule laboratory analysis.

C. In addition to the reporting required by Section 103 of

CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency
42

Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C.

S 11004, upon the occurrence of any event during performance of

the Work that Non-Owner Settling Defendants are required to

report pursuant to Section 103 of CERCLA, 42 U.S.C. S 9603, or

Section 304 of EPCRA, 42 U.S.C. § 11004, Non-Owner Settling

Defendants shall, within 24 hours of the onset of such event,

orally notify the EPA Remedial Project Manager or the Section

Chief of the Delaware/Maryland Section of the EPA Region III

Superfund Remedial Branch (in the event of the unavailability of

the EPA Remedial Project Manager), or, in the event that neither

the EPA Remedial Project Manager or Section Chief is available,

the EPA Region III Emergency Hotline at (215) 597-9898. Within

20 days of the onset of such an event, Non-Owner Settling

Defendants shall furnish to EPA and the State a written report,

signed by the Non-Owner Settling Defendants' 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, Non-Owner Settling Defendants shall

submit a report setting forth all actions taken in response

thereto.

D. Except as otherwise provided in this Consent Decree,

Non-Owner Settling Defendants shall submit 5 copies of all plans,

reports, and data required by the Remedial Design Work Plan, the

Remedial Action Work Plan, or any other approved plans to EPA in

accordance with the schedules set forth in such plans. Non-Owner

Settling Defendants shall simultaneously submit 2 copies of all
43

such plans, reports and data to the State.

E. Plans, design documents, proposals, reports or other

documents shall be signed by a Duly Authorized Representative of

each of the Non-Owner Settling Defendants certifying that the

information contained in the submitted document is true, accurate

and complete, as set forth below. The Remedial Design Work Plan,

Remedial Action Work Plan, and any other work plan approved by

EPA pursuant to this Consent Decree shall specify which documents

shall be so certified. The certification statement accompanying

the document shall state the following:

"I certify, after thorough investigation and to the

best of my knowledge, information and belief, that the

information contained in or accompanying this document

is true, accurate and complete. As to the identified

portion(s) of this document for which I cannot

personally verify its (their) truth and accuracy, I

certify, after thorough investigation and to the best

of my knowledge, information and belief, as the Duly

Authorized Representative having direct or indirect

supervisory responsibility for the person(s) who,

acting under my direct instructions, made the

verification, that this information is true, accurate

and complete."

In those instances where a Registered Professional Engineer

("RPE") is required to make a certification pursuant to this

Paragraph E and such certification requires the professional
44

opinion of such RPE, the RPE may state the following in

lieu of the certification statement above:

"In my professional opinion, after thorough

investigation and to the best of my knowledge,

information and belief, the information contained in or

accompanying this document is true, accurate and

complete. As to the identified portion(s) of this

document for which I cannot personally verify its

(their) truth and accuracy, in my professional opinion,

after thorough investigation and to the best of my

knowledge, information and belief, as the Registered

Professional Engineer having direct or indirect

supervisory responsibility for the person(s) who,

acting under my direct instructions, made the

verification, this information is true, accurate and

complete."

XII. SUBMISSIONS REQUIRING AGENCY APPROVAL

A. Any plan, report or other item which is required to be

submitted by the Non-Owner Settling Defendants or Owner Settling

Defendants for approval by EPA pursuant to this Consent Decree

shall be simultaneously submitted to the State by the Non-Owner

Settling Defendants or Owner Settling Defendants, respectively.

After review of any such plan, report or other item, EPA shall,

after reasonable opportunity for review and comment by the State:

(1) approve, in whole or in part, the submission; (2) approve the
45

submission upon specified conditions; (3) modify the submission

to cure the deficiencies; (4) direct that the Non-Owner Settling

Defendants or Owner Settling Defendants, as the case may be,

modify the submission; (5) disapprove, in whole or in part, the

submission, notifying the Non-Owner Settling Defendants or Owner

Settling Defendants, as the case may be, of deficiencies; or (6)

any combination of the above.

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

modification by EPA, Non-Owner Settling Defendants or Owner

Settling Defendants, as the case may be, 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.

C. Upon receipt of a notice of disapproval or a notice

requiring a modification, Non-Owner Settling Defendants or Owner

Settling Defendants, as the case may be, shall, within 30 days or

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

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

approval. Notwithstanding the notice of disapproval or a notice

requiring a modification, Non-Owner Settling Defendants or Owner

Settling Defendants, as the case may be, shall proceed, at the

direction of EPA, to take any action required by any nondeficient portion of the submission.

D. In the event that a resubmitted plan, report or other
46

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

require the Non-Owner Settling Defendants or Owner Settling

Defendants, as the case may be, to correct the deficiencies, in

accordance with the preceding Paragraphs. EPA also retains the

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

Subject only to their right to invoke procedures set forth in

Section XX (Dispute Resolution), Non-Owner Settling Defendants or

Owner Settling Defendants, as the case may be, shall implement

any such plan, report, or item as amended or developed by EPA.

Implementation of any non-deficient portion of a submission shall

not relieve Non-Owner Settling Defendants or Owner Settling

Defendants, as the case may be, of any liability for stipulated

penalties under Section XXI (Stipulated Penalties) for any

violations of this Consent Decree relating to any deficient

portion of the submission.

E. If a resubmitted plan, report, or item is disapproved or

modified by EPA because it is deemed substantially deficient by

EPA, Non-Owner Settling Defendants or Owner Settling Defendants,

as the case may be, shall be deemed to be in violation of the

provision of this Consent Decree requiring the Non-Owner Settling

Defendants or Owner Settling Defendants, as the case may be, to

submit such plan, report, or item, unless the Non-Owner Settling

Defendants or Owner Settling Defendants, as the case may be,

invoke the dispute resolution procedures set forth in Section XX

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

that Section. If EPA's disapproval or modification is upheld,
47

stipulated penalties shall accrue for such violation from the

date on which the initial submission was originally required, as

provided in Section XXI (Stipulated Penalties).

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

submitted for approval by EPA under this Consent Decree shall,

upon modification and/or approval by EPA, be deemed to be an

enforceable requirement of this Consent Decree. In the event EPA

approves a portion of a plan, report, or other item required to

be submitted to EPA under this Consent Decree, the approved

portion shall be deemed to be an enforceable requirement of this

Consent Decree.

XIII. PROJECT COORDINATOR/REMEDIAL PROJECT MANAGER

A. EPA has selected a Remedial Project Manager for the

Site. The EPA Remedial Project Manager is the EPA representative

to whom notices and other submissions are to be submitted

pursuant to Section XXVII (Notices and Submissions) of this

Consent Decree. Non-Owner Settling Defendants have selected a

Project Coordinator for the Site. The Non-Owner Settling

Defendants' Project Coordinator is Richard Sobel, Clean Sites,

Inc., 1199 North Fairfax St., Alexandria, Virginia 22314,

telephone number (703) 739-1221. EPA shall have the right to

change its Remedial Project Manager and Non-Owner Settling

Defendants shall have the right to change their Project

Coordinator. Any such change shall be accomplished by notifying

the other party in writing at least five (5) working days before
48

the change occurs, unless impracticable, but in no event later

than the actual day the change is made. The Non-Owner Settling

Defendants' Project Coordinator shall be subject to acceptance by

EPA and shall have the technical expertise sufficient to

adequately oversee all aspects of the Work. The Non-Owner

Settling Defendants7 Project Coordinator shall not be acting as

an attorney for any of the Settling Defendants in this matter.

He or she may assign other representatives, including other

contractors, to serve as a Site representative for oversight of

performance of daily operations during remedial activities.

B. EPA 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. The EPA Remedial

Project Manager shall have the authority lawfully vested in a

Remedial Project Manager by the NCP. In addition, the EPA

Remedial Project Manager shall have authority, consistent with

the NCP, to halt or redirect any Work required by this Consent

Decree and to take any necessary response action when he or she

determines that conditions at the Site may constitute an

emergency situation or may present an immediate threat to public

health or welfare or the environment due to a release or

threatened release of Waste Material.

C. The EPA Remedial Project Manager and the Non-Owner

Settling Defendants' Project Coordinator will meet as requested

by EPA.
49

XIV. ASSURANCE OP ABILITY TO COMPLETE WORK

A. By the effective date of this Consent Decree, Non-Owner

Settling Defendants shall have established an escrow account

("Escrow Account") to implement the Remedial Design and Remedial

Action and to otherwise carry out the terms of this Consent

Decree and shall have contributed, by the effective date of this

Consent Decree, at least $250,000 to this Escrow Account for

implementation of the Work. The money in this Escrow Fund shall

be used exclusively to pay expenses incurred pursuant to this

Consent Decree.

B. Non-Owner Settling Defendants shall make additional

payments to the Escrow Account periodically, as necessary, so

that the balance in the Escrow Account will be adequate to make

payments on a current basis to fulfill the obligations of the

Non-Owner Settling Defendants for the next six (6) month period

during the Remedial Design and Remedial Action phases and the

next one (1) year period during the O&M period.

C. Non-Owner Settling Defendants have designated Clean

Sites, Inc., as the Escrow Agent to manage this Escrow Account.

The Escrow Agent shall prepare six (6) month cash flow

projections during the Remedial Design and Remedial Action phases

that project the level of funds that will be necessary for the

Remedial Design and Remedial Action for the succeeding six (6)

month period. A one-year cash flow projection shall be provided

by Clean Sites, Inc. at the commencement of the O&M period and
50

each succeeding year thereafter. if the amount of money in the

Escrow Account is less than such projected level, the Non-Owner

Settling Defendants shall make the necessary additional payments

in sufficient time to assure the uninterrupted progress and

timely completion of the Remedial Design, Remedial Action, and

0 & M.

D. The Escrow Account agreement shall be subject to

approval by EPA as to form. Non-Owner Settling Defendants shall

provide EPA with a written report from the Escrow Agent of the

establishment of and account balances in the Escrow Account

within thirty (30) days of the effective date of this Consent

Decree and every six (6) months thereafter until EPA notifies

Non-Owner Settling Defendants pursuant to Paragraph A.2 of

Section XV (Certification of Completion); and annually thereafter

until EPA notifies Non-Owner Settling Defendants pursuant to

Paragraph B.2 of Section XV (Certification of Completion).

XV. CERTIFICATION OP COMPLETION

A. Completion of the Remedial Action

1. Within 90 days after Non-Owner Settling Defendants

conclude that the Remedial Action has been fully performed and

the Performance Standards have been attained, Non-Owner Settling

Defendants shall so certify to the United States and shall

schedule and conduct a pre-certification inspection to be

attended by Non-Owner Settling Defendants and EPA. If, after the

pre-certification inspection, the Non-Owner Settling Defendants
51

still believe that the Remedial Action has been fully performed

and the Performance Standards have been attained, they shall

submit a written report requesting certification to EPA for

approval, and to the State for an opportunity for review and

comment, pursuant to Section XII (Submissions Requiring Agency

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

registered professional engineer ("RPE") shall certify in the

format set forth in Section XI.E that the Remedial Action has

been completed in full satisfaction of the requirements of the

Remedial Design Work Plan and the Remedial Action Work Plan, and

a Duly Authorized Representative of each of the Non-Owner

Settling Defendants shall certify in the format set forth in

Section XI.E 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 RPE and certified as required by Section XI.E. If, after

completion of the pre-certification inspection and receipt and

review of the written report, EPA, after reasonable opportunity

for review and comment by the State, determines that the Remedial

Action or any portion thereof has not been completed in

accordance with this Consent Decree or that the Performance

Standards have not been achieved, EPA will notify Non-Owner

Settling Defendants in writing, within ninety (90) days of

receipt by EPA of the written report from the Non-Owner Settling

Defendants, of the activities that must be undertaken to complete

the Remedial Action and achieve the Performance Standards. EPA
52

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

activities consistent with this Consent Decree or require the

Non-Owner Settling Defendants to submit a schedule to EPA for

approval pursuant to Section XII (Submissions Requiring Agency

Approval). Non-Owner Settling Defendants shall perform all

activities described in the notice in accordance with the

specifications and schedules established pursuant to this

Paragraph, subject to their right to invoke the Dispute

Resolution procedures set forth in Section XX (Dispute

Resolution). Failure by EPA to so notify Non-Owner Settling

Defendants within ninety (90) days of receipt by EPA of the

written report from Non-Owner Settling Defendants shall not

constitute a determination by EPA that no further activities must

be undertaken to complete the Remedial Action and achieve the

Performance Standards.

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

subsequent written report by the Non-Owner Settling Defendants

requesting Certification of Completion, 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 Standards have been

achieved, EPA will so certify in writing to the Settling

Defendants within ninety (90) days of receipt by EPA of such

initial or subsequent written report from the Non-Owner Settling

Defendants. This certification shall constitute the

Certification of Completion of the Remedial Action for purposes
53

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

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

Completion of the Remedial Action shall not affect Settling

Defendants' obligations under this Consent Decree that continue

beyond the Certification of Completion, including, but not

limited to, access, Operation and Maintenance, record retention,

indemnification, insurance, payment of Future Response Costs and

penalties, and any work to be conducted under Section VII

(Additional Response Actions), Section VIII (U.S. EPA Periodic

Review), and Section XVI (Emergency Response). Failure by EPA to

so certify to the Settling Defendants within ninety (90) days of

receipt by EPA of the initial or subsequent written report from

the Non-Owner Settling Defendants shall not constitute

certification by EPA that the Remedial Action has been fully

performed in accordance with this Consent Decree and that the

Performance Standards have been achieved.

B. Completion of the Work

1. Within 90 days after Non-Owner Settling Defendants

conclude that all phases of the Work (including O & M), with the

exception of the payment of Future Response Costs associated with

this Paragraph, have been fully performed, Non-Owner Settling

Defendants shall so certify to the United States by submitting a

written report to EPA for approval. In the report, a RPE shall

certify in the format set forth in Section XI.E that the Work has

been completed in full satisfaction of the requirements of the

Remedial Design Work Plan and the Remedial Action Work Plan, and
54

a Duly Authorized Representative of each Non-Owner Settling

Defendant shall certify in the format set forth in Section XI.E

that the Work has been completed in full satisfaction of the

requirements of this Consent Decree. If, after review of the

written report, EPA, after a reasonable opportunity for review

and comment by the State, determines that any portion of the Work

has not been completed in accordance with this Consent Decree,

EPA will notify Non-Owner Settling Defendants, within ninety (90)

days of receipt by EPA of the written report from the Non-Owner

Settling Defendants, 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 this Consent Decree or require the Non-Owner Settling

Defendants to submit a schedule to EPA for approval pursuant to

Section XII (Submissions Requiring Agency Approval). Non-Owner

Settling Defendants shall perform all activities described in the

notice in accordance with the specifications and schedules

established therein, subject to their right to invoke the dispute

resolution procedures set forth in Section XX (Dispute

Resolution). Failure by EPA to so notify Non-Owner Settling

Defendants within ninety (90) days of receipt by EPA of the

written report from the Non-Owner Settling Defendants shall not

constitute a determination by EPA that no further activities must

be undertaken to complete the Work.

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

subsequent written report by the Non-Owner Settling Defendants
55

requesting Certification of Completion, 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 Defendants in writing within

ninety (90) days of receipt by EPA of such initial or subsequent

written report from the Non-Owner Settling Defendants. Failure

by EPA to so notify Settling Defendants within ninety (90) days

of receipt by EPA of such initial or subsequent written report

shall not constitute a determination by EPA that the Work has

been fully performed in accordance with this Consent Decree.

XVI. EMERGENCY RESPONSE

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

performance of the Work which causes or threatens a release of

Waste Material that constitutes an emergency situation or may

present an immediate threat to the public health or welfare or

the environment, Non-Owner Settling Defendants shall, subject to

Paragraph B of this Section XVI, immediately take all appropriate

action to prevent, abate, or minimize such release or threat of

release, and shall immediately notify the EPA Remedial Project

Manager, or, if the EPA Remedial Project Manager is unavailable,

the Section Chief of the Delaware/Maryland Section of the EPA

Region III Superfund Remedial Branch. If neither of these

persons is available, the Non-Owner Settling Defendants shall

notify the EPA Region III Emergency Hotline at (215) 597-9898.

Non-Owner Settling Defendants shall take such actions in
56

consultation with the EPA Remedial Project Manager or other

available authorized EPA officer and in accordance with all

applicable provisions of the Health and Safety Plans, the

Contingency Plans, or any other applicable plans or documents.

In the event that the Non-Owner Settling Defendants fail to take

appropriate response action as required by this Section, and EPA

takes such action, Non-Owner Settling Defendants shall reimburse

EPA all costs of the response action not inconsistent with the

NCP pursuant to Section XVII (Reimbursement of Response Costs).

B. 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, welfare and

the environment or to prevent, abate, or minimize an actual or

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

XVII. REIMBURSEMENT OF RESPONSE COSTS

A. Within 30 days of the effective date of this Consent

Decree, Non-Owner Settling Defendants shall pay to the United

States the sum of $101,834.89 in the form of a certified check or

checks made payable to "EPA Hazardous Substances Superfund," and

referencing CERCLA Number 3-K9 and DOJ Case Number 90-11-2-658 in

reimbursement of all Past Response Costs. The Non-Owner Settling

Defendants shall forward the certified check(s) to United States

Environmental Protection Agency, Region III, Attention: Superfund

Accounting, P.O. Box 360515M, Pittsburgh, PA 15251 and shall send
57

copies of the check to the United States and the Regional Hearing

Clerk (3RCOO), United States Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107.

B. Within 30 days of the effective date of this Consent

Decree, Non-Owner Settling Defendants shall pay to the United

States the sum of $80,000 (the "Federal Trustees' Costs"), in the

form of a certified check made payable to the "U.S. Department of

Commerce, NOAA" and shall send such check to:

General Counsel

National Oceanic and Atmospheric Administration

Herbert Hoover Building, Room 5814

14th & Constitution Ave., N.W.

Washington, D.C 20230

The check shall reference CERCLA Number 3-K9 and DOJ Case Number

90-11-2-658. The Non-Owner Settling Defendants shall send copies

of the check to:

Chief, Environmental Enforcement Section

Environment & Natural Resources Division

U.S. Department of Justice

P.O. Box 7611

Ben Franklin Station

Washington, D.C. 20044

and,

Director, Office of Environmental Affairs

U.S. Department of the Interior

1849 C Street, N.W., Room 2340

Washington, D.C. 20240

The above noted payment shall be considered full reimbursement to

the Federal Trustees of their costs to restore any and all

damages to wetlands at the Site as a result of past disposal or

any Work performed under this Consent Decree, and for all past

and future response costs of the Federal Trustees as to the

wetland restoration project and to the monitoring work undertaken
58

pursuant to Paragraph H of Section VI of this Consent Decree and

set forth in Appendix D. It is understood that this payment does

not cover any future response costs that the Federal Trustees may

incur with respect to any future remedial work that might be

required as a result of the monitoring work.

C. Non-Owner Settling Defendants shall reimburse the United

States for all Future Response Costs not inconsistent with the

National Contingency Plan incurred by the United States. The

United States will send Non-Owner Settling Defendants on an

annual basis a bill requiring payment that includes a cost

summary setting forth direct and indirect costs incurred by the

EPA and the Department of Justice, their contractors, and the

State. The cost summary shall include a description of the work

performed and the dates services were rendered by EPA's

contractors relating to the costs included on each such bill.

Non-Owner Settling Defendants shall make all payments within

forty-five (45) days of Non-Owner Settling Defendants' receipt of

each bill which includes a cost summary describing the work

performed and dates services were rendered by any contractors,

except as otherwise provided in Paragraph D of this Section. The

Non-Owner Settling Defendants shall make all payments required by

this Paragraph in the manner described in Paragraph A of this

Section.

D. Non-Owner Settling Defendants may contest payment of any

Future Response Costs under Paragraph C of this Section if they

determine that the United States has made an accounting error or
59

if they allege that a cost item that is included represents costs

that are inconsistent with the NCP. Such objection shall be made

in writing within 45 days of receipt of the bill and must be sent

to the United States pursuant 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 Non-Owner Settling Defendants

shall within the 45 day period pay all uncontested Future

Response Costs to the United States in the manner described in

Paragraph A of this Section. Simultaneously, the Non-Owner

Settling Defendants shall establish an interest bearing escrow

account in a bank duly chartered in the Commonwealth of Virginia

and remit to that escrow account funds equivalent to the amount

of the contested Future Response Costs. The Non-Owner Settling

Defendants shall send to the United States, as provided in

Section XXVII (Notices and Submissions), a copy of the

transmittal letter and check paying the uncontested Future

Response Costs, and a copy of the correspondence that establishes

and funds the escrow account, including, but not limited to,

information containing the identity of the bank and bank account

under which the escrow account is established, a bank statement

showing the initial balance of the escrow account, and a copy of

the escrow agreement establishing the escrow account.

Simultaneously with establishment of the escrow account, the NonOwner Settling Defendants may initiate the Dispute Resolution

procedures set forth in Section XX (Dispute Resolution). Failure
60

to initiate the dispute resolution procedures set forth in

Section XX within the 45 day period following receipt of the bill

shall be a waiver of Non-Owner Settling Defendants' right to

initiate dispute resolution with respect to that issue. If the

Non-Owner Settling Defendants fail to initiate the dispute

resolution procedures set forth in Section XX within the 45 day

period following receipt of the bill, then within 5 days of such

45th day, the Non-Owner Settling Defendants shall direct the

escrow holder to remit the escrowed monies (with accrued

interest) to the United States in the manner described in

Paragraph A of this Section. If the United States prevails in

the dispute, then within 5 days of the resolution of the dispute,

the Non-Owner Settling Defendants shall direct the escrow holder

to remit the escrowed monies (with accrued interest) to the

United States in the manner described in Paragraph A of this

Section. If the Non-Owner Settling Defendants prevail concerning

any aspect of the contested costs, the Non-Owner Settling

Defendants shall direct the escrow holder to remit payment for

that portion of the costs (plus associated accrued interest) for

which they did not prevail to the United States in the manner

described in Paragraph A of this Section; Non-Owner Settling

Defendants shall be disbursed the balance of the escrow account.

The Dispute Resolution procedures set forth in this Paragraph D

in conjunction with the procedures set forth in Section XX

(Dispute Resolution) shall be the exclusive mechanisms for

resolving disputes regarding the Non-Owner Settling Defendants'
61

obligation to reimburse the United States for its Future Response

Costs.

E. In the event that the payments required by Paragraphs A

or B of this Section are not made within 30 days of the effective

date of this Consent Decree or the payments required by Paragraph

C of this Section within 45 days of the Non-Owner Settling

Defendants' receipt of the bill, Non-Owner Settling Defendants

shall pay interest on the unpaid balance at the rate established

pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a). The

interest on Past Response Costs shall begin to accrue 30 days

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

Future Response Costs shall begin to accrue 45 days after the

date of Non-Owner Settling Defendants' receipt of the bill.

Payments made under this Paragraph E shall be in addition to such

other remedies or sanctions available to the United States by

virtue of Non-Owner Settling Defendants' failure to make timely

payments under this Section.

XVIII. INDEMNIFICATION AND INSURANCE

A. The United States does not assume any liability by

entering into this agreement or by virtue of any designation of

Settling Defendants as EPA's designated representatives under

Section 104(e) of CERCLA, 42 U.S.C. S 9604(e). Non-Owner

Settling Defendants and Owner Settling Defendants hereby

indemnify, save and hold harmless the United States and its

officials, agents, employees, contractors, subcontractors, or
62

representatives for or from any and all claims or causes of

action arising from, or on account of, acts or omissions of NonOwner Settling Defendants or Owner Settling Defendants,

respectively, their respective officers, directors, employees,

agents, contractors, subcontractors, and any persons acting on

their behalf or under their control, in carrying out activities

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

any claims arising from any designation of Non-Owner Settling

Defendants or Owner Settling Defendants, respectively, as EPA's

representatives under Section 104(e) of CERCLA and, with respect

to Non-Owner Settling Defendants, any claim for just compensation

arising out of performance of this Consent Decree, unless such

claims arise solely and exclusively from the negligent actions or

omissions of the United States in carrying out activities

pursuant to this Consent Decree. The Non-Owner Settling

Defendants shall not be liable to indemnify the United States for

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

account of, acts or omissions of Owner Settling Defendants in

carrying out activities pursuant to this Consent Decree and the

Owner Settling Defendants shall not be liable to indemnify the

United States for or from any claims or causes of action arising

from, or on account of, acts or omissions of Non-Owner Settling

Defendants in carrying out activities pursuant to this Consent

Decree. Further, the Non-Owner Settling Defendants and Owner

Settling Defendants agree to pay the United States all costs the

United States incurs including, but not limited to, attorneys
63

fees and other expenses of litigation and settlement arising

from, or on account of, claims made against the United States

based on acts or omissions of Non-Owner Settling Defendants or

Owner Settling Defendants, respectively, their respective

officers, directors, employees, agents, contractors,

subcontractors, and any persons acting on their behalf or under

their control, in carrying out activities pursuant to this

Consent Decree, unless such claims arise solely and exclusively

from the negligent actions or omissions of the United States 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 Defendants in carrying

out activities pursuant to this Consent Decree. Neither the

Settling Defendants nor any such contractor shall be considered

an agent of the United States.

B. Settling Defendants waive 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 arising from or

on account of any contract, agreement, or arrangement between any

one or more of Settling Defendants and any person for performance

of Work on or relating to the Site or performance of any other

obligations of Settling Defendants under this Consent Decree,

including, but not limited to, claims on account of construction

delays. In addition, Settling Defendants hereby indemnify and

hold harmless the United States with respect to any and all

claims for damages or reimbursement arising from or on account of
64

any contract, agreement, or arrangement between any one or more

of Settling Defendants and any person for performance of Work on

or relating to the Site or performance of any other obligations

of Settling Defendants under this Consent Decree, including, but

not limited to, claims on account of construction delays.

Nothing in Paragraphs A or B of this Section XVIII shall be

construed as or deemed a waiver of Settling Defendants' right to

pursue an action against the United States under the Federal Tort

Claims Act.

C. No later than 30 days after the effective date of this

Consent Decree, Non-Owner Settling Defendants shall secure or

shall ensure that their contractor(s) secure, and shall maintain

or shall ensure that their contractor(s) maintain until one year

from the date of EPA's certification of completion of the

Remedial Action pursuant to Paragraph A.2 of Section XV

(Certification of Completion), comprehensive general liability

insurance with limits of five (5) million dollars and automobile

liability insurance with limits of at least $500,000. Non-Owner

Settling Defendants shall ensure that all subcontractors secure

and maintain for the term of their respective subcontracts

comprehensive general liability insurance with limits of one (1)

million dollars. Non-Owner Settling Defendants shall ensure that

all subcontractors secure and maintain for the term of their

respective subcontracts automobile liability insurance with

limits of at least $500,000. In addition, for the duration of

this Consent Decree, Non-Owner Settling Defendants shall satisfy,
65

and 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 Non-Owner Settling Defendants in

furtherance of this Consent Decree. At least 15 days prior to

commencement of the Work by any contractor or subcontractor under

this Consent Decree, Non-Owner Settling Defendants shall provide

to EPA certificates of such insurance. Non-Owner Settling

Defendants shall resubmit such certificates each year on the

anniversary of the effective date of this Consent Decree. If

Non-Owner Settling Defendants demonstrate by evidence

satisfactory to EPA that any contractor or subcontractor

maintains insurance eguivalent to that described above, or

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

with respect to matters so insured by that contractor or

subcontractor, Non-Owner Settling Defendants need provide only

that portion of the insurance described above which is not

maintained by the contractor or subcontractor. Non-Owner

Settling Defendants may satisfy the provisions of this Paragraph

C if they submit to EPA for approval (1) a surety bond; (2) one

or more letters of credit; or (3) a trust fund, in at least the

amounts stated in this Paragraph C demonstrating that Non-Owner

Settling Defendants are able to pay any claims arising out of

Non-Owner Settling Defendants' performance of their obligations

under this Consent Decree. In the event that EPA determines at

any time that a financial assurance mechanism listed above that
66

has been provided by Non-Owner Settling Defendants is inadequate,

Non-Owner Settling Defendants 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

above or obtain insurance as provided in this Paragraph C.

XIX. FORCE MAJBURB

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

defined as any event arising from causes beyond the control of

each and every Non-Owner Settling Defendant or of any entity

controlled by such Non-Owner Settling Defendants, including, but

not limited to, their contractors and subcontractors, that delays

or prevents the performance of any obligation under this Consent

Decree despite the Non-Owner Settling Defendants' best efforts to

fulfill the obligation. The requirement that the Non-Owner

Settling Defendants exercise "best efforts to fulfill the

obligation" includes using best efforts to anticipate any

potential force majeure event and best efforts to address the

effects of any potential force majeure event (1) as it is

occurring and (2) following the potential force majeure event,

such that the delay is minimized to the greatest extent possible.

"Force Majeure" does not include financial inability to complete

the Work or a failure to attain the Performance Standards.

B. 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 Non-Owner Settling
67

Defendants shall notify by telephone the EPA Remedial Project

Manager or, in his or her absence, the Section Chief of the

Delaware/Maryland Section of the EPA Region III Superfund

Remedial Branch or, in the event both of EPA's designated

representatives are unavailable, the EPA Region III Emergency

Hotline at (215) 597-9898, within 48 hours of when the Non-Owner

Settling Defendants or any one of them first knew or should have

known that the event might cause a delay. Within 10 days

thereafter, Non-Owner Settling Defendants shall provide in

writing to EPA the reasons for the delay; the obligations and

deadlines the Non-Owner Settling Defendants claim are affected by

the force majeure event; the anticipated duration of the delay;

all actions taken or to be taken to prevent or minimize the

delay; a schedule for implementation of any measures to be taken

to prevent or mitigate the delay or the effect of the delay; the

Non-Owner Settling Defendants' 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 NonOwner Settling Defendants, such event may cause or contribute to

an endangerment to public health, welfare or the environment.

The Non-Owner Settling Defendants 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 Non-Owner Settling Defendants

from asserting any claim of force majeure for that event. NonOwner Settling Defendants shall be deemed to have notice of any
63

circumstance of which their contractors or subcontractors had or

should have had notice.

C. If EPA, after a reasonable opportunity for review and

comment by the State, 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,

after a reasonable opportunity for review and comment by the

State, for such time as is necessary to complete those

obligations and EPA will notify the Non-Owner Settling Defendants

of the length of the extension for performance of the

obligations. An extension of the time for performance of the

obligation(s) affected by the force majeure event shall not, of

itself, extend the time for performance of any other obligation.

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

the State, does not agree that the delay or anticipated delay has

been or will be caused by a force majeure event, EPA will notify

the Non-owner Settling Defendants in writing of its decision.

D. If the Non-Owner Settling Defendants elect to invoke the

dispute resolution procedures set forth in Section XX (Dispute

Resolution), they shall do so no later than 15 days after receipt

of EPA's notice. In any such proceeding, Non-Owner Settling

Defendants shall have the burden of demonstrating by a

preponderance of the evidence that the delay or anticipated delay

has been or will be caused by a force majeure event, that the

duration of the delay or the extension sought was or will be
69

warranted under the circumstances, that best efforts were

exercised to avoid and mitigate the effects of the delay, and

that Non-Owner Settling Defendants complied with the requirements

of Paragraphs A and B, above. If Non-Owner Settling Defendants

carry this burden, the delay at issue shall be deemed not to be a

violation by Non-Owner Settling Defendants of the affected

obligation of this Consent Decree identified to EPA and the

Court.

XX. DISPUTE RESOLUTION

A. 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 and shall apply to all

provisions of this Consent Decree whether or not this Dispute

Resolution provision is noted in conjunction with a particular

provision. However, the procedures set forth in this Section

shall not apply to actions by the United States to enforce

obligations of the Settling Defendants that are not disputed.

B. 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 written

agreement of the Parties to the dispute. The dispute shall be

considered to have arisen when one party notifies the other
70

parties in writing that there is a dispute.

C. 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 15 days after the conclusion of the informal negotiation

p«riod, Settling Defendants invoke the formal dispute resolution

procedures of this Section by serving on the United States a

written statement of their 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 Defendants.

D. Formal dispute resolution for disputes arising under the

provisions of this Consent Decree which pertain 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: (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 any dispute by

Settling Defendants regarding the validity of the ROD'S

provisions.

1. An administrative record of the dispute shall be
71

maintained by EPA and shall contain all statements of position,

including supporting documentation, submitted pursuant to this

Paragraph and Paragraph C, above.

2. After receipt of Settling Defendants' statement of

position submitted pursuant to Paragraph C, above, EPA will serve

on Settling Defendants its statement of position, including, but

not limited to, any factual data, analysis, or opinion supporting

that position and all supporting documentation relied upon by

EPA, in response to Settling Defendants' statement of position.

Where appropriate, EPA may allow submission of supplemental

statements of position by the Parties to the dispute.

3. The EPA Region III Associate Director of the Office

of Superfund of the Hazardous Waste Management Division will

issue a final administrative decision resolving the dispute based

on the administrative record described in Paragraph D.I of this

Section. This decision shall be binding upon the Settling

Defendants, subject only to the right to seek judicial review

pursuant to Paragraphs D.4 and D.5 of this Section.

4. Any administrative decision by EPA pursuant to

Paragraph D.3 of this Section shall be reviewable by this Court,

provided that a notice of judicial appeal under this Section XX

is filed by the Settling Defendants with the Court and served on

the United States within 15 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
72

dispute must be resolved to ensure orderly implementation of this

Consent Decree. The United States may file a response to

Settling Defendants' notice of judicial appeal.

5. In proceedings on any dispute governed by this

Paragraph, Settling Defendants shall have the burden of

demonstrating that the decision of EPA is arbitrary and

capricious or otherwise not in accordance with law. Judicial

review of EPA's decision shall be on the administrative record

compiled pursuant to Paragraphs D.I and D.2 of this Section.

E. 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.

1. Following receipt of Settling Defendants' statement

of position submitted pursuant to Paragraph C of this Section,

the EPA Region III Associate Director of the Office of Superfund

of the Hazardous Waste Management Division will issue a final

decision resolving the dispute. The EPA's decision shall be

binding on the Settling Defendants unless, within 15 days of

receipt of the decision, the Settling Defendants file with the

Court and serve on the United States 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
73

a response to Settling Defendants' notice of judicial appeal.

2. Notwithstanding Paragraph L of Section I

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

dispute governed by this Paragraph E shall be governed by

applicable provisions of law. In any such proceeding, the

Settling Defendants shall bear the burden of coming forward with

evidence and the burden of persuasion on factual issues.

F. 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 Defendants under this

Consent Decree, except that payment of stipulated penalties with

respect to the disputed matter shall be stayed pending resolution

of the dispute as provided in Paragraph H of Section XXI

(Stipulated Penalties). Notwithstanding the stay of payment,

stipulated penalties, including interest, shall accrue from the

first day of noncompliance with any applicable provision of this

Consent Decree. In the event that the Settling Defendants do not

prevail on the disputed issue, stipulated penalties shall be

assessed and paid as provided in Section XXI (Stipulated

Penalties).

XXI. STIPULATED PENALTIES

A. Subject to Paragraph L, below, of this Section XXI,

Settling Defendants shall be liable for stipulated penalties in

the amounts set forth in Paragraphs B and C of this Section to

the United States for failure to comply with the requirements of
74

this Consent Decree specified below, unless excused under Section

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

include completion of the activities under this Consent Decree or

any work plan or other plan approved under this Consent Decree

identified below in accordance with all applicable requirements

of law, this Consent Decree, 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.

B. The following stipulated penalties shall be payable per

violation per day to the United States for any noncompliance

identified in Paragraph B.2, below, of this Section:

1. Penalty Per Violation Period of Noncompliance

Per Day

$2,500 1st through 14th day

$5,000 15th through 44th day

$10,000 45th day and beyond

2. Failure to comply with the requirements of Section VI

(Performance of the Work by Non-Owner Settling Defendants and

Placement of Deed Restrictions by Owner Settling Defendants),

Section VII (Additional Response Actions), Section VIII (U.S. EPA

Periodic Review), Section IX (Quality Assurance), Section XII

(Submissions Requiring Agency Approval), and Section XVI

(Emergency Response).

C. The following stipulated penalties shall be payable per

violation per day to the United States for any noncompliance
75

identified in Paragraph C.2, below, of this Section:

1. Penalty Per Violation Period of Noncompliance

Per Day

$1,000 1st through 10th day

$2,000 llth day and beyond

2. Failure to comply with the requirements of Section V

(General Provisions), Section XI (Reporting Requirements),

Section XIV (Assurance of Ability to Complete Work), Section XV

(Certification of Completion), and Section XIX (Force Majeure).

D. 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. Separate

penalties shall accrue for each separate violation of this

Consent Decree.

E. Following EPA's determination that Settling Defendants

have failed to comply with a requirement of this Consent Decree,

EPA may give Settling Defendants written notification of same and

describe the noncompliance. However, penalties shall accrue as

provided in the preceding Paragraph whether or not EPA has

notified the Settling Defendants of a violation. EPA may send

the Settling Defendants a written demand for the payment of the

penalties.

F. All penalties owed to the United States under this

section shall be due and payable within 45 days of the Settling

Defendants' receipt from EPA of a demand for payment of the

penalties, unless Settling Defendants invoke the Dispute
76

Resolution procedures under Section XX (Dispute Resolution). All

payments under this Section shall be paid by certified check made

payable to "EPA Hazardous Substances Superfund," shall be mailed

to United States Environmental Protection Agency, Region III,

Attention: Superfund Accounting, P.O. Box 360515M, Pittsburgh, PA

15251 and shall reference CERCLA Number 3-K9 and DOJ Case Number

90-11-2-658. Copies of check(s) paid pursuant to this Section,

and any accompanying transmittal letter(s), shall be sent to the

United States as provided in Section XXVII (Notices and

Submissions).

G. Neither the invocation of Dispute Resolution procedures

under Section XX (Dispute Resolution) nor the payment of

penalties shall alter in any way Non-Owner Settling Defendants'

obligation to complete the performance of the Work required under

this Consent Decree or Owner Settling Defendants' obligation to

complete the performance of any of their obligations under this

Consent Decree.

H. Penalties shall continue to accrue as provided in

Paragraph D of this Section during any dispute resolution period,

and shall be paid as follows:

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

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

penalties shall be paid to EPA within 30 days of the agreement or

the receipt of EPA's decision or order;

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

United States prevails in whole or in part, Settling Defendants
77

shall pay all accrued penalties determined by the Court to be

owed to the United States within 30 days of receipt of the

Court's decision or order, except as provided in Paragraph H.3

below;

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

Party, Settling Defendants shall pay all accrued penalties

determined by the District Court to be owed to the United States,

into an interest-bearing escrow account established in accordance

with the procedures set forth in Section XVII.C within 30 days of

receipt of the Court's decision or order. Penalties shall be

paid into this account as they continue to accrue, at least every

60 days. Within 30 days of receipt of the final appellate court

decision, the escrow agent shall pay the balance of the account,

including interest, to EPA and/or Settling Defendants in

accordance with the final appellate court decision.

I. If Settling Defendants fail to pay stipulated penalties

when due, the United States may institute proceedings to collect

the penalties and interest. Settling Defendants shall pay

interest on the unpaid balance, which shall begin to accrue at

the end of the thirty-day period following Settling Defendants'

receipt from EPA of a demand for payment at the rate established

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

However, nothing in this Section shall be construed as

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

United States to seek any other remedies or sanctions available

by virtue of Settling Defendants' violation of this Decree or of
78

the statutes and regulations upon which it is based, including,

but not limited to, penalties pursuant to Section 122(1) of

CERCLA, 42 U.S.C. S 9622(1) and state law.

J. No payments made under this Section shall be tax

deductible for Federal or State tax purposes.

K. EPA may, in its unreviewable discretion, reduce or

forego any stipulated penalties and in the exercise of such

discretion may consider, among other things, the good faith

efforts of the Settling Defendants to comply with the

requirements of this Consent Decree. Decisions by EPA to reduce

or forego stipulated penalties and decisions by EPA not to reduce

or forego stipulated penalties shall not be subject to Section XX

(Dispute Resolution) of this Consent Decree and shall not be

otherwise subject to judicial review.

L. The Non-Owner Settling Defendants shall not be liable

for stipulated penalties incurred by Owner Settling Defendants

under this Consent Decree and the Owner Settling Defendants shall

not be liable for stipulated penalties incurred by Non-Owner

Settling Defendants under this Consent Decree.

XXII. COVENANTS NOT TO SUB BY PLAINTIFF

A. In consideration of the actions that will be performed

and the payments that will be made by the Settling Defendants

under the terms of this Consent Decree, and except as

specifically provided in Paragraphs B, C, E, F and H of this

Section, the United States covenants not to sue or to take
79

administrative action against Settling Defendants pursuant to

Sections 106 and 107(a) of CERCLA relating to the Site. Except

with respect to Future Liability, the covenants not to sue

described in the preceding sentence shall take effect, with

respect to the Non-Owner Settling Defendants, upon the receipt by

EPA of the payments required by Paragraph A of Section XVII

(Reimbursement of Response Costs) and, with respect to each of

the Owner Settling Defendants, upon the receipt by EPA of a copy

of the recorded deed and deed restrictions for that part of the

Site owned by such Owner Settling Defendant, respectively,

pursuant to Section VI.G of this Consent Decree. With respect to

Future Liability, these covenants not to sue shall take effect

upon Certification of Completion of the Remedial Action by EPA

pursuant to Paragraph A.2 of Section XV (Certification of

Completion). Except as specifically provided in Paragraph F of

this Section, the United States covenants not to sue Settling

Defendants for any injury to, destruction of, or loss of natural

resources, as defined by CERCLA, arising from injury to or

destruction of wetlands at the Site, or for all past or future

response costs of the Federal Trustees relating to the wetland

restoration project and to the monitoring work set forth in

Appendix D. The covenants not to sue described in the

immediately preceding sentence shall take effect upon the receipt

by the National Oceanic and Atmospheric Administration of the

payment required by Paragraph B of Section XVII (Reimbursement of

Response Costs) and the complete and satisfactory performance of
80

the monitoring set forth in Appendix D. All of these covenants

not to sue are conditioned upon the complete and satisfactory

performance by Settling Defendants of their obligations under

this Consent Decree. These covenants not to sue extend only to

the Settling Defendants and do not extend to any other person.

B. 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 Defendants (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 the

United States, are discovered after the entry of

this Consent Decree, or

(ii) information is received, in whole or in part,

after the entry of this Consent Decree,

and these previously unknown conditions or this information

together with any other relevant information indicates that the

Remedial Action is not protective of human health or the

environment.

C. United States7 Post-certification reservations.

Notwithstanding any other provision of this Consent Decree, the

United States reserves, and this Consent Decree is without
81

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 Defendants (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 the

United States, are discovered after the

Certification of Completion, or

(ii) information is received, in whole or in part,

after the Certification of Completion,

and these previously unknown conditions or this information

together with other relevant information indicate that the

Remedial Action is not protective of human health or the

environment.

D. For purposes of Paragraph B of this Section, the

information previously received by and the conditions known to

the United States shall include only that information and those

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

the administrative record supporting the Record of Decision. For

purposes of Paragraph C of this Section, the information

previously received by and the conditions known to the United

States shall include only that information and those conditions

set forth in the Record of Decision, the administrative record

supporting the Record of Decision, and any information received

by the United States pursuant to the requirements of this Consent
82

Decree prior to Certification of Completion of the Remedial

Action.

E. General reservations of rights. The covenants not to

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

those expressly specified in Paragraph A of this Section. The

United States reserves, and this Consent Decree is without

prejudice to, all rights (including, but not limited to, causes

of action under Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§

9606 and 9607(a)) against Settling Defendants with respect to all

other matters, including but not limited to, the following:

(1) claims based on a failure by Settling Defendants

to meet a requirement of this Consent Decree;

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

future disposal, release, or threat of release of Waste

Materials outside of the Site;

(3) criminal liability; and

(4) liability for violations of federal or state law

which occur during or after implementation of the Remedial

Action.

F. Notwithstanding any other provision of this Consent

Decree, the United States reserves the right to institute

proceedings against the Settling Defendants in this action or in

any new action seeking recovery of damages for injury to,

destruction of, or loss of natural resources based on (1)

conditions with respect to the Site, unknown at the date of

lodging this Consent Decree, that result in further release of
83

hazardous substances that contribute to injury to, destruction

of, or loss of natural resources, or (2) information received, in

whole or in part, after the date of lodging of this Consent

Decree, which together with any other relevant information,

indicates that there is injury to, destruction of, or loss of

natural resources of a type that was unknown, or of a magnitude

greater than was known, to the United States at the date of

lodging of this Consent Decree.

G. 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 law.

H. Additional Reservations As To Owner Settling Defendants.

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 either or both of the Owner Settling Defendants, as the

case may be, (1) to perform response actions relating to the Site

(including the Work required herein) or (2) to reimburse the

United States for costs of response (including the costs of the

Work required herein) if, subsequent to the entry of this Consent

Decree, information is received, in whole or in part, and this

information together with any other relevant information

indicates that such Owner Settling Defendant(s) had materially

greater financial resources and/or assets than such Owner

Settling Defendant(s) represented to the United States as of the
84

entry of this Consent Decree. For purposes of this Paragraph H,

the information previously received by the United States shall

include only that information set forth in (i) a letter dated

July 12, 1991 to Harry Steinmetz of EPA from John C. Andrade,

Esquire, counsel to Kowinsky Farms, Inc., in response to a

request by EPA for information pursuant to Section 104(e) of

CERCLA, 42 U.S.C. S 9604(e), (ii) a letter dated August 13, 1991

to Harry Steinmetz of EPA from John C. Andrade, Esquire, counsel

to Alberta F. Schmidt, in response to a request by EPA for

information pursuant to Section 104(e) of CERCLA, 42 U.S.C.

S 9604(e), (iii) a letter dated August 26, 1991 to Harry

Steinmetz of EPA from John C. Andrade, Esquire, counsel to

Alberta F. Schmidt, in response to a request by EPA for

information pursuant to Section 104(e) of CERCLA, 42 U.S.C.

§ 9604(e), (iv) a letter dated October 23, 1991 to Gwen Pospisil

of EPA from John C. Andrade, Esquire, counsel to Alberta F.

Schmidt and Kowinsky Farms, Inc., in response to a request for

information pursuant to Section 104(e) of CERCLA, 42 U.S.C.

§ 9604(e), and (v) any further responses to EPA's requests for

information pursuant to Section 104(e) of CERCLA, 42 U.S.C.

§ 9604(e), submitted by the Owner Settling Defendants prior to

the entry of this Consent Decree.

I. Subject to the satisfaction of any proceeding instituted

or order issued by the United States in accordance with Paragraph

H, above, of this Section, the Non-Owner Settling Defendants

reserve their rights to seek contribution from the Owner Settling
85

Defendants under the same circumstances described in Paragraph H,

above, of this Section.

XXIII. COVENANTS BY SETTLING DEFENDANTS

Settling Defendants hereby covenant 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

Sections 106(b)(2), 111 or 112 of CERCLA, 42 U.S.C. §S

9606(b)(2), 9611, or 9612, or any other provision of law, any

claim against any department, agency or instrumentality of the

United States related to the Site, or any claims arising out of

response activities at the Site. However, the Settling

Defendants reserve, 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 Defendants' 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. S 9611, or 40 C.F.R.

§ 300.700(d).
86

XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION

A. Nothing in this Consent Decree shall be construed to

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

not a party to this Consent Decree. The preceding sentence shall

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

not a signatory to this decree may have under applicable law.

Each of the Parties expressly reserves any and all rights

(including, but not limited to, any right to 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.

B. With regard to claims for contribution against Settling

Defendants for matters addressed in this Consent Decree, the

Parties hereto agree that the Settling Defendants are entitled,

as of the effective date of this Consent Decree, to such

protection from contribution actions or claims as is provided by

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

C. The Settling Defendants agree 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 Defendants also agree 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
87

complaint on them. Settling Defendants acknowledge that the

United States has no obligation to defend them in any suit or

claim for contribution.

D. 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 Defendants shall not assert, and may not maintain, any

defense or claim based upon the principles of waiver, res

ludicata. collateral estoppel, issue preclusion, claim-splitting,

or other defenses based upon any contention that the claims

raised by the United States in the subsequent proceeding were or

should have been brought in the instant case; provided, however,

that nothing in this Paragraph affects the enforceability of the

covenants not to sue set forth in Section XXII (Covenants Not to

Sue by Plaintiff).

XXV. ACCESS TO INFORMATION

A. Settling Defendants shall provide to EPA, upon reguest,

copies of all documents and information within their possession

or control or that of their contractors or agents relating to

activities at the Site or to the implementation of this Consent

Decree, including, but not limited to, sampling, analysis, chain

of custody records, manifests, trucking logs, receipts, reports,

sample traffic routing, correspondence, or other documents or

information related to the Work. Settling Defendants shall also

make available to EPA, for purposes of investigation, information
88

gathering, or testimony, their employees, agents, or

representatives with knowledge of relevant facts concerning the

performance of the Work or the implementation of this Consent

Decree.

B. Settling Defendants 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. S 9604(e)(7), and 40 C.F.R. S 2.203(b). Documents or

information determined to be confidential by EPA will be afforded

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

claim of confidentiality accompanies documents or information

when they are submitted to EPA, or if EPA has notified Settling

Defendants that the documents or information are not confidential

under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R.

Part 2, the public may be given access to such documents or

information without further notice to Settling Defendants. The

Settling Defendants may assert that certain documents, records

and other information are privileged under the attorney-client

privilege or any other privilege recognized by federal courts in

actions involving the United States. If the Settling Defendants

assert 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
89

addressee and recipient; (5) a description of the contents of the

document, record, or information; and (6) the nature and basis of

the privilege asserted by Settling Defendants. However, no

documents, records or information created, generated or collected

pursuant to the terms of the Consent Decree shall be withheld on

the grounds that they are privileged.

C. No claim of confidentiality shall be made with respect

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

analytical, monitoring, hydrogeologic, scientific, chemical, or

engineering data, or any other documents or information

evidencing conditions at or around the Site.

XXVI. RETENTION OP RECORDS

A. Until 6 years after the Non-Owner Settling Defendants'

receipt of EPA's notification pursuant to Paragraph B.2 of

Section XV (Certification of Completion), each Non-Owner 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, including any Settling Defendant, for

response actions conducted and to be conducted at the Site,

regardless of any corporate retention policy to the contrary.

Until 6 years after the Non-Owner Settling Defendants' receipt of

EPA's notification pursuant to Paragraph B.2 of Section XV

(Certification of Completion), Non-Owner Settling Defendants

shall also instruct their contractors and agents to preserve all
90

documents, records, and information of whatever kind, nature or

description relating to the performance of the Work.

B. Upon conclusion of this document retention period, NonOwner Settling Defendants shall notify EPA by certified mail,

return receipt requested, 90 and 30 days prior to the destruction

of any such records, documents or information, and, upon request

of EPA, Non-Owner Settling Defendants shall deliver all such

documents, records and information to EPA. EPA may request one

additional 90-day period to make arrangements to take custody of

the documents, records, and information. If EPA has not taken

possession of the documents, records, and information at the end

of the initial 90-day period (or the second 90-day period if

requested by EPA), the Non-Owner Settling Defendants may dispose

of the documents, records, and information. Non-Owner Settling

Defendants shall specify in the notifications required by this

Paragraph the date on which the documents will be destroyed,

unless Non-Owner Settling Defendants receive a written response

from EPA.

XXVII. NOTICES AND SUBMISSIONS

A. 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 specified in the particular

Section of this Consent Decree at the addresses specified below,

unless those individuals or their successors give notice of a
91

change to the other parties in writing. Written notice as

specified herein shall constitute complete satisfaction of any

written notice requirement of this Consent Decree with respect to

the United States, EPA, and the Settling Defendants,

respectively.

As 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: DOJ # 90-11-2-658

and

Chief, CERCLA Removal and Pennsylvania Remedial Branch (3RC20)

Attn: Coker's Sanitation Service Landfills Site

Office of Regional Counsel

United States Environmental Protection Agency

Region III

841 Chestnut Building

Philadelphia, PA 19107

As to EPA:

Robert Guarni (3HW25)

EPA Remedial Project Manager

Superfund Remedial Branch

Attn: Coker's Sanitation Service Landfills Site

United States Environmental Protection Agency

Region III

841 Chestnut Building

Philadelphia, PA 19107
92

As to the Settling Defendants;

Dr. Albert F. Vickers

Director

Environmental Services

Reichhold Chemicals, Inc. Address for overnight mail:

P.O. Box 13582 800 Capitola Drive

Research Triangle Park, NC 27709 Durham, NC 27713

Carl Volkert

Nabisco Brands, Inc.

P.O. Box 1944

200 DeForest Avenue

East Hanover, NJ 07936-1944

Paul Weiner

Rapid-American Corporation

c/o McCrory Corp.

12th Floor

667 Madison Ave.

New York, NY 10021

Paul Weiner

McCrory Parent Corp.

c/o McCrory Corp.

12th Floor

667 Madison Ave.

New York, NY 10021

Richard Sobel

Clean Sites, Inc.

1199 North Fairfax St. - Suite 400

Alexandria, VA 22314

Joseph S. Kowinsky, Jr.

President, Kowinsky Farms, Inc.

R.D. 5

Box 131-K

Dover, Delaware 19901

Alberta F. Schmidt

R.D. 5

Box 148

Kent County

Dover, Delaware 19901
93

As to the State:

Jane F. Biggs

State of Delaware

Division of Air and Waste Management

Department of Natural Resources and

Environmental Control

715 Grantham Lane

New Castle, DE 19720

XXVIII. EFFECTIVE AND TERMINATION DATES

A. The effective date of this Consent Decree shall be one

(1) day following the date that EPA or the Department of Justice

gives written notice to the Settling Defendants by overnight mail

or telefax of the date upon which this Consent Decree is entered

by the Court, except as otherwise provided herein.

B. After EPA has notified the Non-Owner Settling Defendants

pursuant to Paragraph B.2 of Section XV (Certification of

Completion) of this Consent Decree or after EPA determines that

it does not need to conduct, in accordance with Section VIII

(U.S. EPA Periodic Review) of this Consent Decree, any additional

5 year reviews pursuant to Section 121(c) of CERCLA, 42 U.S.C.

§ 9621(c), whichever is later, and after the United States has

been reimbursed by the Non-Owner Settling Defendants for all

costs under Sections XVI (Emergency Response) and XVII

(Reimbursement of Response Costs) of this Consent Decree, the

Settling Defendants may request that the United States petition

the Court to terminate this Consent Decree. If the United States

agrees that this Consent Decree should be terminated, then the

United States and the Settling Defendants may jointly petition
94

the Court for termination of this Consent Decree. If the United

States rejects the Settling Defendants' request to terminate this

Consent Decree, it shall explain its reasons in writing to the

Settling Defendants, and the dispute resolution procedures of

Section XX of this Consent Decree shall apply. Termination shall

not affect the provisions of Section X (Access), Section XX

(Dispute Resolution), Section XXII (Covenants Not To Sue By

Plaintiff), Section XXIII (Covenants By Settling Defendants),

Section XXIV (Effect Of Settlement; Contribution Protection),

Section XXVI (Retention of Records), Section XXVIII (Effective

and Termination Dates), and Section XXIX (Retention of

Jurisdiction) of this Consent Decree.

XXIX. RETENTION OF JURISDICTION

This Court retains jurisdiction over both the subject

matter of this Consent Decree and the Parties 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.

XXX. APPENDICES

The following appendices are attached to and incorporated
95

into this Consent Decree:

"Appendix A" is the ROD.

"Appendix B" is the map of the Site.

"Appendix C" is the list of Performance Standards identified

as of the effective date of this Consent Decree and the

description of the Selected Remedy.

"Appendix D" sets forth monitoring required by the Federal

Trustees which the Non-Owner Settling Defendants have agreed to

undertake in addition to the monitoring required by the ROD.

XXXI. COMMUNITY RELATIONS

Non-Owner Settling Defendants shall cooperate with EPA in

providing information regarding the Work to the public. As

requested by EPA, Non-Owner Settling Defendants shall participate

in the preparation of such information for dissemination to the

public and, if appropriate, in public meetings which may be held

or sponsored by EPA to explain activities at or relating to the

Site.

XXXII. MODIFICATION

A. Schedules for completion of the Work specified in this

Consent Decree or incorporated by reference may be modified by

agreement of the Parties. All such modifications shall be made

in writing and a copy shall be filed with the Court.

B. No material modifications shall be made to the Remedial

Design Work Plan or the Remedial Action Work Plan, and no
96

modifications shall be made to provisions of this Consent Decree

other than the Remedial Design Work Plan and the Remedial Action

Work Plan as described below in Paragraph C of this Section,

without written notification to and written approval of the

United States, Settling Defendants, 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.

C. Modifications to the Remedial Design Work Plan and the

Remedial Action Work Plan that do not materially alter the

requirements of those documents may be made by written agreement

between the EPA Remedial Project Manager, after providing the

State with a reasonable opportunity to review and comment on the

proposed modification, and the Settling Defendants.

D. Nothing in this Section shall be deemed to alter the

Court's power to supervise or modify this Consent Decree.

XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

A. 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 Defendants consent to the
97

entry of this Consent Decree without further notice.

B. 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

A. Each undersigned representative of a Settling Defendant

to this Consent Decree and the Assistant Attorney General for

Environment and Natural Resources of the Department of Justice of

the United States 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.

B. Each Settling Defendant hereby agrees not to oppose

entry of this Consent Decree by this Court or challenge any

provision of this Consent Decree.

C. Each Non-Owner Settling Defendant and Kowinsky Farms,

Inc. 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 behalf of that party with respect to all

matters arising under or relating to this Consent Decree. NonOwner Settling Defendants and Kowinsky Farms, Inc. hereby agree

to accept service in that manner and to waive the formal service

requirements set forth in Rule 4 of the Federal Rules of Civil

Procedure, including, but not limited to, waiver of service of a
98

summons, and any applicable local rules of this court. Alberta

P. Schmidt agrees to accept service of process by nail with

respect to all matters arising under or relating to this Consent

Decree and to waive the formal service requirements set forth in

Rule 4 of the Federal Rules of civil Procedure, including, but

not limited to, waiver of service of a summons, and any

applicable local rules of this Court.

SO ORDERED THIS V DAY OF

A - P

/4~p <, \ft\

United StatesuOistrict Jud

THE UNDERSIGNED PARTIES enter into this Consent Decree in the

matter of United States v. Ravins lev Parma. Inc. et alf. relating

to the CoJcer's Sanitation Service Landfills Superfund Site.

FOR THE UNITED STATES OF AMERICA

Date:

stant Attorney General

and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530
LESLIE A. HULSE

Environmental Enforcement Section

Environment and Natural Resources

Division

U.S. Department of Justice

Box 7611

Ben Franklin Station

Washington, D.C. 20044

(202) 514-1543

WILLIAM C. CARPENTER, JR.

United States Attorney

Assistant United Stakes Attorney

District of Delaware

U.S. Department of Justice

J. Caleb Boggs Federal Building

844 King Street

Wilmington, DE 19801

B. EBTCKSON

igional Administrator

U.S. Environmental Protection

Agency

Region III

841 Chestnut Building

Philadelphia, PA 19107

MARCIA E< MULKZY

Regional Counsel

U.S. Environmental Protection

Agency

Region III

841 Chestnut Building

Philadelphia, PA 19107
100

<?£>• — - T J^c4-

•

»

GWEN B. POSPISIL

Assistant Regional Counsel

U.S. Environmental Protection

Agency

Region III

341 Chestnut Building

Philadelphia, PA 19107

(215) 597-8543
101

THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of United States v. Kovins)cv Fanaa, Inc. et al. . relating

to the Coker's Sanitation Service Landfills Superfund Site.

FOR KOWINSKY FARMS, INC.

Date:

Box 131-K

Dov«r, 0«lavar« 19901 .v

Agent Authorized to Accept Service on Behalf of Above-signed

Party:

Name: Parkowalci, Noble i GuerJce

Address: 116 West Water Street

P.O. Box 598

Dover, Delaware 19901
102

THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of United States v. Kowinslcv Farms. Inc. et al.. relating

to the Coker's Sanitation Service Landfills Superfund Site.

Date: October 30. 1991

FOR MCCRORY PARENT CORP.

PauT Weiner

Vice President

McCrory Parent Corp.

c/o McCrory Corp.

12th Floor

667 Madison Av«.

New Yorfc, NY 10021

Agent Authorized to Accept Service on Behalf of Above-signed

Party:

Name: United Corporate S«rvices. Inc.

Address : 15 East~North Street _

Address : Dover, UE 19901
103

THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of United states v. Kowinskv Farms. Inc. et al.. relating

to the Coker's Sanitation Service Landfills Superfund Site.

3ate: October 30, 1991

FOR RAPID-AMERICAN CORPORATION

Paul Weiner

Vice President

Rapid-American Corp.

c/o McCrory Corp.

L2th Floor

667 Madison Ave.

Hew Yorfc, NY 10021

Agent Authorized to Accept Service on Behalf of Above-signed

Party:

Name: Corporation Systems. lac.

Address : 32 L

Address: Dover. PE 19Q11
104

THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of United States v. Kowinskv Farms. Inc. et alLr relating

to the Coker's Sanitation Service Landfills Superfund Site.

Date: \6 I 3 » \<\ \

NABISCO BRANDS, INC. /l/ffl

i-w"

John! F. Manfred!

Senior Vic* President

Nabisco Brands, Inc.

7 campus Drive

Parsippany, NJ 07054-0311

Agent Authorized to Accept Service on Behalf of Above-signed

Party:

Name: United States Corporation Company

Title: Registered Agent

Address: 150 West State Street

Trenton, NJ 08608
105

THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of United States v. Kovinskv Farina. Inc. et al.. relating

to the Cofcer's Sanitation Service Landfills Superfund Site.

FOR RZICHHOLD CHEMICALS, INC.

/Dr . Albert P . VicJcers

Director, Environmental Services

Reichhold Chemicals, Inc.

P.O. Box 13582

Research Triangle Park, NC 27709

Agent Authorized to Accept Service on Behalf of Above-signed

Party:

Name: Dr. Albert P. VicJcers

Title: Director, Environmental Services

Address: Reichhold Chemicals, Inc.

P.O. Box 13582

Research Triangle Park, NC 27709
106

THE UNDERSIGNED PARTY enters into this Consent Decree in the

matter of Onited States v. Kowinalcv Parma. Inc. et al. . relating

to the Coker's Sanitation Service Landfills Superfund site.

Date:

ALBERTA

R.D. 3

BOX 148

Kent County

Dover, Delaware 19901