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United States v. Alcoa Inc.

October 6, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALCOA INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Terry J. Hatter, Jr. United States District Judge

CONSENT DECREE

TABLE OF CONTENTS

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

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

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

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

V. GENERAL PROVISIONS ................................................................................11

VI. PERFORMANCE OF THE WORK BY SETTLING WORK DEFENDANTS13

VII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS ............21

VIII. ACCESS AND INSTITUTIONAL CONTROLS .........................................23

IX. REPORTING REQUIREMENTS....................................................................29

XI. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS ....................31

XI. PROJECT COORDINATORS .........................................................................34

XII. PERFORMANCE GUARANTEE..................................................................35

XIII. CERTIFICATION OF COMPLETION ........................................................42

XIV. EMERGENCY RESPONSE .........................................................................44

XV. OBLIGATIONS OF SETTLING CASH DEFENDANTS ............................45

XVI. PAYMENTS FOR RESPONSE COSTS ......................................................46

XVII. INDEMNIFICATION AND INSURANCE ................................................49

XVIII. FORCE MAJEURE ....................................................................................52

XIX. DISPUTE RESOLUTION.............................................................................54

XX. STIPULATED PENALTIES ..........................................................................58

XXI. COVENANTS NOT TO SUE BY PLAINTIFF ...........................................63

XXII. COVENANTS BY SETTLING DEFENDANTS........................................67

XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION ...........69

XXIV. ACCESS TO INFORMATION ..................................................................71

XXV. RETENTION OF RECORDS......................................................................72

XXVI. NOTICES AND SUBMISSIONS ..............................................................74

XXVII. RETENTION OF JURISDICTION ..........................................................75

XXVIII. APPENDICES..........................................................................................76

XXIX. COMMUNITY INVOLVEMENT .............................................................76

XXX. MODIFICATION.........................................................................................76

XXXI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ..............77

XXXII. SIGNATORIES/SERVICE .......................................................................77

XXXIII. FINAL JUDGMENT................................................................................78

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 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607.

B. The United States in its complaint seeks, inter alia: (1) reimbursement of costs incurred by EPA and the United States Department of Justice for response actions at the Omega Chemical Corporation Superfund Site in Whittier, California ("Site"), together with accrued interest; and (2) performance of response actions by the Settling Work Defendants at the Site consistent with the National Contingency Plan, 40 C.F.R. Part 300 (as amended) ("NCP").

C. In accordance with the NCP and Section 121(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F), EPA notified the State of California (the "State") on January 21, 2009, of negotiations with potentially responsible parties ("PRPs") regarding the implementation of the remedial design and remedial action for the Site, and EPA has provided the State with an opportunity to participate in such negotiations and be a party to this Consent Decree.

D. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA notified the Federal natural resource trustee, the United States Department of Interior, Fish and Wildlife Service, on July 21, 1999, of negotiations with PRPs regarding the release of hazardous substances that may have resulted in injury to the natural resources under Federal trusteeship and encouraged the trustee to participate in the negotiation of that Consent Decree.

E. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Site on the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the Federal Register on January 19, 1999, 64 Fed. Reg. 2950.

F. On February 28, 2001, the Court entered a Consent Decree ("Phase 1a Consent Decree") wherein the certain settling defendants ("Settling Work Defendants" as defined therein) agreed to perform certain work at the Site and to reimburse the United States for certain past response costs and oversight costs. The Phase 1a Consent Decree required, inter alia, that the certain defendants (1) implement a Remedial Investigation ("RI") and a Feasibility Study ("FS") for contamination of soils within the vadose zone within the Phase 1a Area and (2) fund and implement a removal action within the Phase 1a area to contain contaminated groundwater. The Phase 1a Consent Decree also required payments from other defendants, in lieu of participation in the work required under that decree.

G. On January 22, 2009, the Court entered an order approving the First Amendment to the Consent Decree, which addressed a new response action undertaken by certain defendants unrelated to existing work under the Phase 1a Consent Decree. Pursuant to the First Amendment to the Phase 1a Consent Decree, certain defendants undertook work to address indoor air contamination issues at a nearby property ("Skateland property") alleged by EPA to be caused in part by vapor intrusion from hazardous substances associated with the Omega Site. Specifically, the work defendants under the Phase 1a Consent Decree organized and funded the purchase of the Skateland property and implemented an EPA-approved remedy that permanently discontinued its use as a commercial building.

H. On January 22, 2009, the Court entered an order approving the Second Amendment to Consent Decree to add additional defendants as work defendants under the Phase 1a Consent Decree, to incorporate additional generator volume and payments of certain defendants, and to correct certain omissions and typographical errors in the caption.

I. Work defendants under the Phase 1a Consent Decree are currently implementing the groundwater removal action pursuant to the requirements of that decree.

J. Work defendants under the Phase 1a Consent Decree completed the OU-1 vadose zone remedial investigation report in November 2007, and completed the OU-1 feasbility study in May 2008.

K. 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 June 6, 2008, in a major local newspaper of general circulation. EPA provided an opportunity for written and oral comments from the public on the proposed plan for remedial action. A copy of the transcript of the public meeting held on June 24, 2008 is available to the public as part of the administrative record upon which the Assistant Director of the Superfund Division based the selection of the response action.

L. The decision by EPA on the remedial action to be implemented at the Site is embodied in a final Record of Decision for Operable Unit 1 (Soils) ("ROD"), signed on September 30, 2008, on which the State had a reasonable opportunity to review and comment, and on which the State has given its concurrence. The ROD includes a responsiveness summary to the public comments. The selected remedy is intended to address soil and soil vapor contamination within OU-1 by removing soil contamination to reduce risk associated with exposure to contaminated soils and contaminant vapors, and to reduce the impact of soil contamination on groundwater.

M. The defendants that have entered into this Consent Decree ("Settling Defendants") do not admit any liability to Plaintiff arising out of the transactions or occurrences alleged in the complaint, nor do they acknowledge that the release or threatened release of hazardous substances at or from the Site constitutes an imminent or substantial endangerment to the public health or welfare or the environment.

N. Based on the information presently available to EPA, EPA believes that the Work will be properly and promptly conducted by the Settling Work Defendants if conducted in accordance with the requirements of this Consent Decree and its appendices.

O. Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j), the Remedial Action selected by the ROD and the Work to be performed by Settling Work Defendants shall constitute a response action taken or ordered by the President for which judicial review shall be limited to the administrative record.

P. The Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and implementation of this Consent Decree will expedite the cleanup of the Site and will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.

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

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has personal jurisdiction over 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

2. This Consent Decree applies to and is binding upon the United States and upon Settling Defendants and their 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.

3. Settling Work 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 Settling Work Defendant with respect to the Site or the Work, and shall condition all contracts entered into hereunder upon performance of the Work in conformity with the terms of this Consent Decree. Settling Work 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. Settling Work Defendants shall nonetheless be responsible for ensuring that their contractors and subcontractors perform the Work contemplated under this Consent Decree in accordance with its terms. 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 Settling Work Defendants within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).

IV. DEFINITIONS

4. Unless otherwise expressly provided in this Consent Decree, terms used in this Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Consent Decree or in the appendices attached hereto and incorporated hereunder, the following definitions shall apply:

"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601, et seq.

"Consent Decree" shall mean this Decree and all appendices attached hereto (listed in Section XXVIII). In the event of conflict between this Decree and any appendix, this Decree shall control.

The term "day" shall mean a calendar day unless expressly stated to be a working day. The term "working day" shall mean a day other than a Saturday, Sunday, or federal holiday. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.

"Effective Date" shall be the earlier of the date upon which this Consent Decree is entered by the Court or the date upon which the order granting the motion to enter the Consent Decree is entered by the Court, as recorded on the Court docket.

"EPA" shall mean the United States Environmental Protection Agency and any successor departments or agencies of the United States.

"Future Response Costs" shall mean all costs, including, but not limited to, direct and indirect costs, that the United States incurs in reviewing or developing plans, reports, and other deliverables submitted pursuant to this Consent Decree, in overseeing implementation of the Work, or in otherwise implementing, overseeing, or enforcing this Consent Decree, including, but not limited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant to Sections VIII (Access and Institutional Controls) (including, but not limited to, the cost of attorney time and any monies paid to secure access and/or to secure, implement, monitor, maintain, or enforce Institutional Controls including, but not limited to, the amount of just compensation), XIV (Emergency Response), and Paragraph 83 of Section XXI (Work Takeover), and Section XXIX (Community Involvement).

"Interest" shall mean interest at the rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year.

"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.

"Omega Chemical Superfund Site Special Account" shall mean the special account, within the EPA Hazardous Substances Superfund, established for the Site by EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

"Omega Property" shall mean that portion of the Omega Chemical Corporation Superfund Site consisting of the property formerly owned by the Omega Chemical Corporation, encompassing approximately one acre, located at 12504 and 12508 East Whittier Boulevard, Whittier, California, Los Angeles County, California, and bounded by fencing and existing streets.

"Operation and Maintenance" or "O&M" shall mean all activities required to maintain the effectiveness of the Remedial Action as required under the Operation and Maintenance Manual approved or developed by EPA pursuant to Section VI (Performance of the Work by Settling Defendants) and the Statement of Work (SOW).

"OU-1" or "Operable Unit 1" shall have the same meaning as and be coextensive with the term "Phase 1a Area" as defined herein.

"Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral or an upper or lower case letter.

"Parties" shall mean the United States and Settling Defendants. "Past Response Costs", for purposes of this Consent Decree, shall be equal to One Million Five Hundred Thousand Dollars ($1,500,000). The parties agree that this sum includes only a portion of the direct and indirect costs that the United States has paid at or in connection with the Site, for which it has not been reimbursed. The parties agree that Settling Work Defendants' payment of $1,500,000 shall be considered a partial payment and a credit towards the total sum of unreimbursed response costs the United States has incurred as of the Effective Date. Interest shall continue to accrue on all unpaid past response costs in accordance with Section 107(a) of CERCLA, 42 U.S.C. § 9607(a).

"Performance Standards" shall mean the cleanup standards and other measures of achievement of the goals of the Remedial Action, set forth in the ROD and SOW, and any modified standards established pursuant to this Consent Decree.

"Phase 1a Area" shall mean the area of soil and groundwater contamination within and below the Omega Property and extending downgradient approximately 100 feet southwest of Putnam Street, Whittier, California. This area is defined as "OU-1" in the ROD and is represented graphically in Figure 5 therein. This term is meant to have the same meaning and scope as the term "Phase 1a Area" in the Phase 1a Consent Decree.

"Phase 1a Consent Decree" shall mean the consent decree (#00-12471-TIH), entered by the Court on February 28, 2001 between the United States and certain settling defendants, wherein certain settling defendants agreed to perform certain work at the Omega Chemical Corporation Superfund Site ("Site") and to reimburse the United States for certain costs as defined therein, and all amendments thereto.

"Plaintiff" shall mean the United States of America

"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).

"Record of Decision" or "ROD" shall mean the EPA Record of Decision relating to OU-1 at the Site, signed on September 30, 2008 by the delegate of the Regional Administrator, EPA Region 9, and all attachments thereto. The ROD is attached as Appendix A.

"Remedial Action" shall mean those activities, except for Remedial Design and Operation and Maintenance, to be undertaken by Settling Work Defendants to implement the ROD, in accordance with the SOW, the final RD/RA Work Plan and other plans approved by EPA.

"Remedial Action Work Plan" shall mean the document developed pursuant to Paragraph 11 and approved by EPA, and any amendments thereto.

"Remedial Design" shall mean those activities to be undertaken by Settling Work Defendants to develop the final plans and specifications for the Remedial Action pursuant to the RD/RA Work Plan.

"RD/RA Work Plan" shall mean the document developed pursuant to Paragraph 10 and the SOW, and approved by EPA, and any amendments thereto.

"Section" shall mean a portion of this Consent Decree identified by a Roman numeral.

"Settling Cash Defendants" shall mean those Parties listed in Appendix C, who are signatories to this Consent Decree, who will participate in this Consent Decree with the other Parties to this Consent Decree, primarily through cash payments, and are not involved in performing the Work under this Consent Decree. The term "Settling Cash Defendant" shall also apply to certain affiliates of each Settling Cash Defendant; where the Settling Cash Defendant is a trust, its trustees and successor trustees appointed to carry out the purposes of said trust; where the Settling Cash Defendant is a corporate entity, its corporate successors to potential liability for the Site; and where the Settling Cash Defendant is a partnership, its partners. However, the term "Settling Cash Defendant" shall not include any person or entity with liability for the Site independent of that person's or entity's affiliation with a Settling Cash Defendant, including liability for Waste Material that has not been attributed to a Settling Cash Defendant.

"Settling Defendants" shall mean the Settling Work Defendants and Settling Cash Defendants

"Settling Work Defendants" shall mean those Parties identified in Appendix D, who are signatories to this Consent Decree, who are required to perform the Work, whether they perform the Work individually or through any legal entity that they may establish to perform the Work. The term "Settling Work Defendants" shall also apply to certain affiliates of each Settling Work Defendants: where the Settling Work Defendants is a trust, its trustees and successor trustees appointed to carry out the purposes of said trust; where the Settling Work Defendant is a corporate entity, its corporate successors to potential liability for the Site; and where the Settling Work Defendant is a partnership, its partners. However, the term "Settling Work Defendant" shall not include any person or entity with liability for the Site independent of that person's or entity's affiliation with a Settling Work Defendant, including liability for Waste Material that has not been attributed to a Settling Work Defendant.

"Site" shall mean the Omega Chemical Corporation Superfund Site, listed on the National Priorities List on January 19, 1999, 64 Fed. Reg. 2950

"State" shall mean the State of California and any agencies or instrumentalities thereof.

"Statement of Work" or "SOW" shall mean the statement of work for implementation of the Remedial Design, Remedial Action, and Operation and Maintenance at the Site, as set forth in Appendix B to this Consent Decree, and any modifications made in accordance with this Consent Decree.

"Supervising Contractor" shall mean the principal contractor retained by Settling Work Defendants to supervise and direct the implementation of the Work under this Consent Decree.

"United States" shall mean the United States of America. "Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33), 42 U.S.C. § 9601(33); (3) any "solid waste" under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); or as any of the foregoing terms are defined under any appropriate or applicable provisions of California law.

"Work" shall mean all activities and obligations the Settling Work Defendants are required to perform under this Consent Decree, except those required by Section XXV (Retention of Records).

V. GENERAL PROVISIONS

5. Objectives of the Parties

The objectives of the Parties in entering into this Consent Decree are to protect public health, welfare or the environment by the design and implementation of response actions at the Site by the Settling Work Defendants, to pay response costs of the Plaintiff, and to partially resolve the claims of Plaintiff against Settling Defendants as provided in this Consent Decree.

6. Commitments by Settling Defendants

a. Settling Work Defendants shall finance and perform the Work in accordance with this Consent Decree, the ROD, the SOW, and all work plans and other plans, standards, specifications, and schedules set forth in this Consent Decree or developed by Settling Work Defendants and approved by EPA pursuant to this Consent Decree. Settling Work Defendants also shall pay the United States for Past Response Costs and Future Response Costs as provided in this Consent Decree, as well as any modifications made thereto pursuant to the terms of this Consent Decree.

b. The obligations of the Settling Work Defendants to perform the Work and the obligation of the Settling Work Defendants 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 Settling Work Defendants to implement the requirements of this Consent Decree, the remaining Settling Work Defendants shall complete all such requirements.

c. The Settling Cash Defendants shall cooperate with the EPA and the Settling Work Defendants to effectuate the purposes of this Consent Decree, including, but not limited to, those obligations set forth in Section XV (Obligations of Settling Cash Defendants).

7. Compliance with Applicable Law

All activities undertaken by Settling Work Defendants pursuant to this Consent Decree shall be performed in accordance with the requirements of all applicable federal and state laws and regulations. Settling Work 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 the SOW. The activities conducted pursuant to this Consent Decree, if approved by EPA, shall be deemed to be consistent with the NCP.

8. Permits

a. As provided in Section 121(e) of CERCLA, 42 U.S.C. § 9621(e), and Section 300.400(e) of the NCP, no permit shall be required for any portion of the Work conducted entirely on-Site (i.e., within the areal extent of contamination or in very close proximity to the contamination and necessary for the implementation of the Work). The Parties believe that all work under this Consent Decree will be on or in close proximity to the Site and therefore, pursuant to 42 U.S.C. § 9621(e) and NCP Section 300.400(e), the Parties anticipate that no permit shall be required by any State, local or Federal entity for any aspect of the Work. In the unanticipated event that any portion of the Work is not on-Site and requires a federal, state or local permit or approval, Settling Work Defendants shall submit timely and complete applications and take all other actions necessary to obtain all such permits or approvals. The EPA agrees to cooperate with and assist the Settling Work Defendants in obtaining any necessary permits or approvals.

b. Settling Work Defendants may seek relief under the provisions of Section XVIII (Force Majeure) for any delay in the performance of the Work resulting from a failure to obtain, or a delay in obtaining, any permit or approval referenced in Paragraph 8.a and required for the Work, provided that they have submitted timely and complete applications and taken all other actions necessary to obtain all such permits or approvals.

c. This Consent Decree is not, and shall not be construed to be, a permit issued pursuant to any Federal or State statute or regulation.

VI. PERFORMANCE OF THE WORK BY SETTLING WORK DEFENDANTS

9. Selection of Supervising Contractor

a. All aspects of the Work to be performed by Settling Work Defendants pursuant to Sections VI (Performance of the Work by Settling Work Defendants), VII (Quality Assurance, Sampling and Data Analysis), VIII (Access and Institutional Controls), and XIV (Emergency Response) shall be under the direction and supervision of the Supervising Contractor, the selection of which shall be subject to disapproval by EPA. Within ten days after the lodging of this Consent Decree, Settling Work Defendants shall notify EPA in writing of the name, title, and qualifications of any contractor proposed to be the Supervising Contractor. With respect to any contractor proposed to be Supervising Contractor, Settling Work Defendants shall demonstrate that the proposed contractor has a quality assurance system that complies with ANSI/ASQC E4-1994, "Specifications and Guidelines for Quality Systems for Environmental Data Collection and Environmental Technology Programs" (American National Standard, January 5, 1995), by submitting a copy of the proposed contractor's Quality Management Plan (QMP). The QMP should be prepared in accordance with "EPA Requirements for Quality Management Plans (QA/R-2)" (EPA/240/B-01/002, March 2001; Reissued May 2006) or equivalent documentation as determined by EPA. EPA will issue a notice of disapproval or an authorization to proceed regarding hiring of the proposed contractor. If at any time thereafter, Settling Work Defendants propose to change a Supervising Contractor, Settling Work Defendants shall give such notice to EPA and must obtain an authorization to proceed from EPA before the new Supervising Contractor performs, directs, or supervises any Work under this Consent Decree. EPA shall not unreasonably withhold or delay authorization of the Contractor .

b. If EPA disapproves a proposed Supervising Contractor, EPA will notify Settling Work Defendants in writing. Settling Work Defendants shall submit to EPA a list of contractors, including the qualifications of each contractor, which would be acceptable to them within 30 days of receipt of EPA's disapproval of the contractor previously proposed. EPA will provide written notice of the names of any contractor(s) that it disapproves and an authorization to proceed with respect to any of the other contractors. Settling Work Defendants may select any contractor from that list that is not disapproved and shall notify EPA of the name of the contractor selected within 21 days of EPA's authorization to proceed.

c. If EPA fails to provide written notice of its authorization to proceed or disapproval as provided in this Paragraph and this failure prevents Settling Work Defendants from meeting one or more deadlines in a plan approved by EPA pursuant to this Consent Decree, Settling Defendants may seek relief under the provisions of Section XVIII (Force Majeure) hereof.

10. Remedial Design

a. Within 15 days after EPA's issuance of an authorization to proceed pursuant to Paragraph 9, Settling Work Defendants shall submit to EPA and the State a work plan for the design of the remedial action at the Site, as set forth in the ROD, in accordance with the SOW, and for achievement of the Performance Standards and other requirements set forth in the ROD, this Consent Decree and/or the SOW ("RD/RA Work Plan"). Upon its approval by EPA, the RD/RA Work Plan shall be incorporated into and become enforceable under this Consent Decree. At the same time as they submit the RD/RA Work Plan, Settling Work Defendants shall submit to EPA a Health and Safety Plan for field 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.

b. The RD/RA Work Plan shall include plans and schedules for implementation of all remedial design and pre-design tasks identified in the SOW, including, but not limited to, plans and schedules for the completion of: (1) Site Management Plan (including an RD/RA Contingency Plan); (2) Health and Safety Plan; (3) Sampling and Analysis Plan (including, but not limited to, a Remedial Design Quality Assurance Project Plan (QAPP) in accordance with Section VII (Quality Assurance, Sampling and Data Analysis) and Field Sampling Plan); (4) a Construction Quality Assurance Plan; (5) an Institutional Controls Implementation and Assurance Plan; (6) quarterly progress reports; (7) a preliminary design submission; (8) an intermediate design submission; and (9) a prefinal/final design submission.

c. Upon approval of the RD/RA Work Plan by EPA, after a reasonable opportunity for review and comment by the State, and submission of the Health and Safety Plan for all field activities to EPA and the State, Settling Work Defendants shall implement the RD/RA Work Plan. Settling Work Defendants shall submit to EPA and the State all plans, reports, and other deliverables required under the approved RD/RA Work Plan in accordance with the approved schedule for review and approval pursuant to Section X (EPA Approval of Plans and Other Submissions). Unless otherwise directed by EPA, Settling Work Defendants shall not commence further Remedial Design activities at the Site prior to approval of the RD/RA Work Plan.

d. The preliminary design submission shall include, at a minimum, the following: (1) design criteria; (2) project delivery strategy; (3) preliminary plans, drawings and sketches; (4) required specifications in outline form; (5) preliminary construction schedule; and other items described in the SOW.

e. The intermediate design submission shall be a continuation and expansion of the preliminary design, and shall contain the items described in the SOW. Any value engineering proposals must be identified and evaluated during this review.

f. The pre-final/final design submission shall include, at a minimum, the following: (1) final plans and specifications; (2) Operation and Maintenance Manual; (3) Construction Quality Assurance Plan; and other items described in the SOW. The Construction Quality Assurance Plan, which shall detail the approach to quality assurance during construction activities at the Site, shall specify a quality assurance official ("QA Official"), independent of the Supervising Contractor, to conduct a quality assurance program during the construction phase of the project.

11. Remedial Action

a. Within 30 days after EPA's approval of the prefinal design submission, Settling Work Defendants shall submit to EPA and the State a work plan for the performance of the Remedial Action at the Site, and which supplements and updates the RD/RA Work Plan ("Remedial Action Work Plan"). Upon its approval by EPA, the Remedial Action Work Plan shall be incorporated into and become enforceable under this Consent Decree. Settling Work Defendants shall submit to EPA and the State: (1) a Construction Health and Safety Plan for field activities required by the Remedial Action Work Plan, which conforms to the applicable Occupational Safety and Health Administration and EPA requirements including, but not limited to, 29 C.F.R. § 1910.120; (2) a construction schedule for completion of the Remedial Action; and other deliverables, as described in the SOW. The timeframes for submittal of the Construction Health and Safety Plan and construction schedule for completion of the Remedial Action shall be those set forth in the SOW.

b. The Remedial Action section of the RD/RA Work Plan shall include the following: (1) a schedule for the completion of the Remedial Action; (2) method and schedule for selection of contractors; (3) plans and schedules for field investigation; (4) methods for satisfying permitting requirements; (5) methodology for implementation of the Operation and Maintenance Manual; (6) methodology for implementation of the Contingency Plan; (7) plans and schedules for formulation of the Remedial Action team; (8) methodology for implementation of the Construction Quality Assurance Plan; (9) procedures and plans for the decontamination of equipment and the disposal of contaminated materials; (10) procurement and contracting details; and (11) a schedule for developing and submitting other required Remedial Action plans. The Remedial Action section of the RD/RA Work Plan also shall include the methodology for implementation of the Construction Quality Assurance Plan and a schedule for implementation of all Remedial Action tasks identified in the final design submission and shall identify the initial formulation of Settling Defendants' Remedial Action project team (including, but not limited to, the Supervising Contractor).

c. Upon approval of the updated RD/RA Work Plan and Remedial Action Work Plan by EPA, after a reasonable opportunity for review and comment by the State, Settling Work Defendants shall implement the activities required under the Remedial Action Work Plan. Settling Work Defendants shall submit to EPA and the State all reports and other deliverables required under the approved Remedial Action Work Plan in accordance with the approved schedule for review and approval pursuant to Section X (EPA Approval of Plans and Other Submissions). Unless otherwise directed by EPA, Settling Defendants shall not commence physical Remedial Action activities at the Site prior to approval of the Remedial Action Work Plan.

12. Settling Work Defendants shall continue to implement the Remedial Action and O&M until the Performance Standards are achieved and for so long thereafter as is otherwise required under this Consent Decree.

13. Modification of the SOW or Related Work Plans

a. If EPA determines that modification to the work specified in the SOW and/or in work plans developed pursuant to the SOW is necessary to achieve and maintain the Performance Standards or to carry out and maintain the effectiveness of the remedy set forth in the ROD, EPA may require that such modification be incorporated in the SOW and/or such work plans, provided, however, that a modification may only be required pursuant to this Paragraph to the extent that it is consistent with the scope of the remedy selected in the ROD.

b. For the purposes of this Paragraph 13 and Paragraph 45 (Completion of the Work) only, the "scope of the remedy selected in the ROD" is:

removal of the potential threat to human health from contaminated soil and soil vapor by using soil vapor extraction (SVE) followed by carbon filters to remove and treat volatile organic compounds (VOCs) and semi-volatile organic compounds present in the OU-1 soils. If necessary to meet Performance Standards, contingencies for increasing the effectiveness of SVE, including hot air injection and dual phase extraction, will be implemented. Institutional controls will be used within the Phase 1a Area, to maintain paved areas and to place restrictions on excavation during operation of the SVE system. It is expected that institutional controls will remain in place until such time as EPA deems the OU-1 soil remedy complete.

c. If Settling Work Defendants object to any modification determined by EPA to be necessary pursuant to this Paragraph, they may seek dispute resolution pursuant to Section XIX (Dispute Resolution). The SOW and/or related work plans shall be modified in accordance with final resolution of the dispute.

d. Settling Work Defendants shall implement any work required by any modifications incorporated in the SOW and/or in work plans developed pursuant to the SOW in accordance with this Paragraph.

e. Nothing in this Paragraph shall be construed to limit EPA's authority to require performance of further response actions as otherwise provided in this Consent Decree.

f. Any modifications shall be implemented pursuant to Section XXX (Modification).

14. Nothing in this Consent Decree, the SOW, or in work plans developed pursuant to the SOW constitutes a warranty or representation of any kind by Plaintiff that compliance with the work requirements set forth in the SOW and the Work Plans will achieve the Performance Standards.

15. Off-Site Shipment of Waste Material

a. Settling Work Defendants shall, prior to any off-Site 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 Project Coordinator of such shipment of Waste Material. However, this notification requirement shall not apply to any off-Site shipments when the total volume of all such shipments will not exceed ten cubic yards.

(1) Settling Work Defendants shall include in the written notification the following information, where available: (a) the name and location of the facility to which the Waste Material is to be shipped; (b) the type and quantity of the Waste Material to be shipped; (c) the expected schedule for the shipment of the Waste Material; and (d) the method of transportation. Settling Work 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 Material 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 Settling Work Defendants following the award of the contract for Remedial Action construction. Settling Work Defendants shall provide the information required by Paragraph 15.a as soon as practicable after the award of the contract and before the Waste Material is actually shipped.

b. Before shipping any hazardous substances, pollutants, or contaminants from the Site to an off-Site location, Settling Work Defendants shall obtain EPA's certification that the proposed receiving facility is operating in compliance with the requirements of Section 121(d)(3) of CERCLA, 42 U.S.C. § 9621(d)(3), and 40 C.F.R. 300.440. Settling Work Defendants shall only send hazardous substances, pollutants, or contaminants from the Site to an off-Site facility that complies with the requirements of the statutory provision and regulations cited in the preceding sentence.

VII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS

16. Quality Assurance

a. Settling Work Defendants shall use quality assurance, quality control, and chain of custody procedures for all treatability, design, compliance and monitoring samples in accordance with "EPA Requirements for Quality Assurance Project Plans (QA/R5)" (EPA/240/B-01/003, March 2001), "Guidance for Quality Assurance Project Plans (QA/G-5)" (EPA/600/R-98/018, February 1998), and subsequent amendments to such guidelines upon notification by EPA to Settling Work Defendants of such amendment. Amended guidelines shall apply only to procedures conducted after such notification.

b. Prior to the commencement of any monitoring project under this Consent Decree, Settling Work Defendants shall submit to EPA for approval, after a reasonable opportunity for review and comment by the State, a Quality Assurance Project Plan ("QAPP") that is consistent with the SOW, the NCP and applicable guidance documents. If relevant to the proceeding, the Parties agree that validated sampling data generated in accordance with the QAPP(s) and reviewed and approved by EPA shall be admissible as evidence, without objection, in any proceeding under this Decree. Settling Work Defendants shall ensure that EPA and State personnel and its authorized representatives are allowed access at reasonable times to all laboratories utilized by Settling Work Defendants in implementing this Consent Decree. In addition, Settling Work Defendants shall ensure that such laboratories shall analyze all samples submitted by EPA pursuant to the QAPP for quality assurance monitoring. Settling Work Defendants shall ensure that the laboratories they utilize for the analysis of samples taken pursuant to this Decree perform all analyses according to accepted EPA methods. Accepted EPA methods consist of those methods that are documented in the "Contract Lab Program Statement of Work for Inorganic Analysis" and the "Contract Lab Program Statement of Work for Organic Analysis," dated February 1988, and any amendments made thereto during the course of the implementation of this Decree; however, upon approval by EPA, after opportunity for review and comment by the State, Settling Work Defendants may use other analytical methods which are as stringent as or more stringent than the CLP-approved methods. Settling Work Defendants shall ensure that all laboratories they use for analysis of samples taken pursuant to this Consent Decree participate in an EPA or EPA-equivalent QA/QC program. Settling Work Defendants shall use only laboratories that have a documented Quality System which complies with ANSI/ASQC E4-1994, "Specifications and Guidelines for Quality Systems for Environmental Data Collection and Environmental Technology Programs" (American National Standard, January 5, 1995), and "EPA Requirements for Quality Management Plans (QA/R-2)" (EPA/240/B-01/002, March 2001; Reissued May 2006) or equivalent documentation as determined by EPA. EPA may consider laboratories accredited under the National Environmental Laboratory Accreditation Program (NELAP) as meeting the Quality System requirements. Settling Work Defendants shall ensure that all field methodologies utilized in collecting samples for subsequent analysis pursuant to this Decree are conducted in accordance with the procedures set forth in the QAPP approved by EPA.

17. Upon request, Settling Work Defendants shall allow split or duplicate samples to be taken by EPA or their authorized representatives. Settling Work Defendants shall notify EPA not less than 10 days in advance of any sample collection activity unless shorter notice is agreed to by EPA. In addition, EPA shall have the right to take any additional samples that EPA deems necessary. Upon request, EPA shall allow Settling Work Defendants to take split or duplicate samples of any samples it takes as part of the Plaintiff's oversight of Settling Work Defendants' implementation of the Work.

18. Settling Work Defendants shall submit to EPA two copies of the results of all sampling and/or tests or other data obtained or generated by or on behalf of Settling Work Defendants with respect to the Site and/or the implementation of this Consent Decree unless EPA agrees otherwise.

19. Notwithstanding any provision of this Consent Decree, the United States hereby retains all of its information gathering and inspection authorities and rights, including enforcement actions related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.

VIII. ACCESS AND INSTITUTIONAL CONTROLS

20. If the Site, or any other property where access and/or land/water use restrictions are needed to implement this Consent Decree, is owned or controlled by any of the Settling Defendants, such Settling Defendants shall:

a. commencing on the date of lodging of this Consent Decree, provide the United States and its representatives, including EPA and its contractors, and Settling Work Defendants and their contractors and representatives, with access at all reasonable times to the Site, or such other property, for the purpose of conducting any activity related to this Consent Decree including, but not limited to, the following activities:

(1) Monitoring the Work;

(2) Verifying any data or information submitted to the United States;

(3) Conducting investigations relating to contamination at ...


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