FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
X QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
----------------------------------
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 33-42125
Chugach Electric Association, Inc.
(Exact name of registrant as specified in its charter)
Alaska 92-0014224
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5601 Minnesota Drive Anchorage, Alaska 99518
(Address of principal executive offices) (Zip Code)
(907) 563-7494
(Registrant's telephone number, including area code)
None
(Former name,former address and former fiscal year,if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X . No .
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
CLASS OUTSTANDING AT MAY 1, 1998
NONE NONE
<PAGE>
CHUGACH ELECTRIC ASSOCIATION, INC.
INDEX
Part I. Financial Information Page Number
Balance Sheets, March 31, 1998 (Unaudited) and December 31, 1997 3
Statements of Revenues, Expenses and Patronage Capital, Three Months Ended
March 31, 1998 and 1997 (Unaudited) 5
Statements of Cash Flows, Three Months Ended March 31, 1998 and 1997
(Unaudited) 6
Notes to Financial Statements (Unaudited) 7
Management's Discussion and Analysis of Results of Operations and
Financial Condition (Unaudited) 8
Part II. Other Information 11
Signatures 13
Exhibits 14
2
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CHUGACH ELECTRIC ASSOCIATION, INC.
Balance Sheets
Assets
<TABLE>
March 31, 1998 December 31, 1997
-------------- -----------------
(Unaudited)
<S> <C> <C>
Utility plant:
Electric plant in service ................... $609,527,484 $625,365,803
Construction work in progress ............... 23,643,805 24,664,395
------------ ------------
633,171,289 650,030,198
Less accumulated depreciation ............... 218,693,938 232,136,950
------------ ------------
Net utility plant .......... 414,477,351 417,893,248
------------ ------------
Other property and investments, at cost:
Nonutility property ......................... 3,550 3,550
Investments in associated organizations ..... 8,003,723 7,864,271
------------ ------------
8,007,273 7,867,821
------------ ------------
Current assets:
Cash and cash equivalents ................... 8,785,549 5,224,529
Cash - restricted construction funds ........ 409,954 364,778
Special deposits ............................ 90,264 151,703
Accounts receivable, net .................... 17,367,447 23,999,138
Materials and supplies, at average cost ..... 15,598,374 15,619,085
Prepayments ................................. 1,519,948 558,371
Other current assets ........................ 410,641 305,415
------------ ------------
Total current assets ......... 44,182,177 46,223,019
------------ ------------
Deferred charges ................................. 14,674,980 13,583,211
------------ ------------
$481,341,781 $485,567,299
------------ ------------
</TABLE>
See accompanying notes to unaudited financial statements.
3
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CHUGACH ELECTRIC ASSOCIATION, INC.
Balance Sheets
Liabilities and Equities
<TABLE>
March 31, 1998 December 31, 1997
-------------- ------------
(Unaudited)
<S> <C> <C>
Equities and margins:
Memberships ......................................... $ 871,768 $ 861,543
Patronage capital ................................... 110,529,644 104,800,092
Other ............................................... 3,454,032 3,458,062
------------ ------------
114,855,444 109,119,697
------------ ------------
Long-term obligations, excluding current installments:
First mortgage bonds payable ........................ 235,101,000 240,910,000
National Bank for Cooperatives bonds
payable ........................................... 70,959,662 71,096,501
------------ ------------
306,060,662 312,006,501
------------ ------------
Current liabilities:
Notes payable ....................................... 8,500,000 --
Current installments of long-term debt and
capital leases .................................... 6,078,952 5,913,512
Accounts payable .................................... 4,774,742 7,038,234
Consumer deposits ................................... 960,709 1,038,241
Accrued interest .................................... 1,353,580 6,904,335
Salaries, wages and benefits ........................ 3,683,589 3,655,101
Fuel ................................................ 3,521,187 6,611,415
Other ............................................... 1,907,882 3,300,310
------------ ------------
Total current liabilities ............. 30,780,641 34,461,148
------------ ------------
Deferred credits ......................................... 29,645,034 29,979,953
------------ ------------
$481,341,781 $485,567,299
------------ ------------
</TABLE>
See accompanying notes to unaudited financial statements.
4
<PAGE>
CHUGACH ELECTRIC ASSOCIATION, INC.
Statements of Revenues, Expenses and Patronage Capital
<TABLE>
Three months ended March 31
1998 1997
------------- -------------
(Unaudited)
<S> <C> <C>
Operating revenues ........................ $ 39,024,214 $ 38,510,339
------------- -------------
Operating expenses:
Production ........................... 11,845,378 9,843,528
Purchased power ...................... 2,237,195 3,957,693
Transmission ......................... 620,854 929,679
Distribution ......................... 2,162,668 1,963,501
Consumer accounts .................... 1,088,237 1,270,375
Administrative, general and other .... 3,844,636 3,097,740
Depreciation and amortization ........ 5,722,186 5,271,803
------------- -------------
Total operating expenses ..... 27,521,154 26,334,319
------------- -------------
Interest:
On long-term debt .................... 6,379,258 6,336,161
Other ................................ 26,447 60,988
Charged to construction - credit ..... (179,765) (172,039)
------------- -------------
Net interest expense ......... 6,225,940 6,225,110
------------- -------------
Net operating margins ........ 5,277,120 5,950,910
------------- -------------
Nonoperating margins:
Interest income ...................... 185,344 148,628
Other ................................ 299,005 78,599
------------- -------------
Total nonoperating margins ... 484,349 227,227
------------- -------------
Assignable margins ........... 5,761,469 6,178,137
Patronage capital at beginning of period .. 104,800,092 100,685,517
Retirement of capital credits and
estate payments ........................ (31,917) (77,323)
------------- -------------
Patronage capital at end of period ........ $ 110,529,644 $ 106,786,331
------------- -------------
</TABLE>
See accompanying notes to unaudited financial statements.
5
<PAGE>
CHUGACH ELECTRIC ASSOCIATION, INC.
Statements of Cash Flows
<TABLE>
Three months ended March 31
1998 1997
----------- ------------
(Unaudited)
<S> <C> <C>
Cash flows from operating activities:
Assignable margins ........................................................... $ 5,761,469 $ 6,178,137
----------- ------------
Adjustments to reconcile assignable margins to net cash provided (used) by
operating activities:
Depreciation and amortization ............................................ 5,722,186 5,271,803
Changes in assets and liabilities:
(Increase) decrease in assets:
Accounts receivable .................................................... 6,631,691 (1,025,850)
Prepayments ............................................................ (961,577) (749,262)
Materials and supplies ................................................. 20,711 79,261
Deferred charges ....................................................... (1,091,769) (237,676)
Other .................................................................. (88,962) 705,687
Increase (decrease) in liabilities:
Accounts payable ....................................................... (2,263,492) (1,683,615)
Consumer deposits ...................................................... (77,532) (6,966)
Accrued interest ....................................................... (5,550,755) (5,740,375)
Deferred credits ....................................................... (334,920) (678,665)
Other .................................................................. (4,454,169) (3,279,301)
----------- ------------
Total adjustments ................................................ (2,448,588) (7,344,959)
----------- ------------
Net cash provided (used) by
operating activities ........................................... 3,312,881 (1,166,822)
Cash flows from investing activities:
Extension and replacement of plant ........................................... (2,306,289) (2,953,950)
Investments in associated organizations ...................................... (139,452) 20,913
----------- ------------
Net cash used in investing activities ............................ (2,445,741) (2,933,037)
----------- ------------
Cash flows from financing activities:
Short-term borrowings, net ................................................... 8,500,000 14,529,600
Repayments of long-term debt ................................................. (5,780,399) (5,825,239)
Retirement of patronage capital .............................................. (31,917) (77,323)
Other ........................................................................ 6,196 (64,603)
----------- ------------
Net cash provided by
financing activities ........................................... 2,693,880 8,562,435
----------- ------------
Net increase in cash and
cash equivalents ............................................... 3,561,020 4,462,576
Cash and cash equivalents at beginning of period ................................ 5,224,529 5,419,819
----------- ------------
Cash and cash equivalents at end of period ...................................... $ 8,785,549 $ 9,882,395
----------- ------------
</TABLE>
See accompanying notes to unaudited financial statements.
6
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CHUGACH ELECTRIC ASSOCIATION, INC.
Notes to Financial Statements
March 31, 1998
(Unaudited)
1. Presentation of Financial Information
During interim periods, Chugach Electric Association, Inc. (Chugach)
follows the accounting policies set forth in its audited financial
statements included in Form 10-K filed with the Securities and Exchange
Commission. Users of interim financial information are encouraged to refer
to footnotes contained in Form 10-K when reviewing interim financial
results. Management believes that the accompanying interim financial
statements reflect all adjustments which are necessary for a fair statement
of the results of the interim period presented. All adjustments made in the
accompanying interim financial statements are of a normal recurring nature.
Certain reclassifications have been made to the 1997 financial statements
to conform to the 1998 presentation.
2. Lines of Credit
Chugach maintains a line of credit of $35 million with National Bank for
Cooperatives (CoBank). The CoBank line of credit expires August 1, 1998 but
carries an annual automatic renewal clause. At March 31, 1998, $8.5 million
was outstanding at an interest rate of 6.65%. In addition, the Association
has an annual line of credit of $50 million available at the National Rural
Utilities Cooperative Finance Corporation (NRUCFC). At March 31, 1998,
there was no outstanding balance on this line of credit. The NRUCFC line of
credit expires October 14, 2002.
3. Change in Accounting Policy
Effective January 1998, Chugach changed its accounting policy for
depreciation of general plant (excluding buildings, leasehold improvements
and vehicles). Under the new vintage group method the assets are amortized
over their service lives and retired as a group at the end of the
amortization period. The amortization periods were developed as part of the
recent depreciation study update. At January 1, 1998, the affected asset
group made up 2.8% of Electric Plant in Service. In conjunction with
adoption of the new depreciation methodology, Chugach wrote off
approximately $19 million of plant considered to be fully depreciated.
Depreciation expense for the affected asset groups is estimated to be
$700,000 lower annually. Buildings, leasehold improvements and vehicles
will continue to be depreciated over their estimated useful lives based on
rates developed in periodic depreciation studies.
7
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Unaudited)
RESULTS OF OPERATIONS
Current Year Quarter Versus Prior Year Quarter
Operating revenues, which include sales of electric energy to retail, wholesale
and economy energy customers and other miscellaneous revenues, increased by 1.3%
for the quarter ended March 31, 1998 over the same quarter in 1997. The increase
in revenues is largely attributable to higher kWh sales to retail and two of the
three wholesale customer classes.
As previously reported, in 1997 Chugach experienced higher than anticipated fuel
and purchased power costs. As a result, in an effort to maintain overall price
stability, some fuel and purchased power costs were not collected and the fuel
surcharge rate was not adjusted to reflect the higher costs. Effective January
1998, routine quarterly adjustments to the fuel surcharge mechanism have
resumed. Additionally, the remaining undercollected amounts from 1997 are being
recovered throughout 1998 under a plan approved by the APUC. At March 31, 1998,
fuel prices appear to have stabilized and are expected to decline for the
remainder of 1998.
Retail demand and energy rates did not change from the first quarter of 1997 to
the same period in 1998. Wholesale demand and energy rates charged to MEA were
decreased slightly effective February 1997. The impact of higher kWh sales more
than offset this decrease in rates. Demand and energy rates to Homer and Seward
did not change.
Pursuant to a Settlement Agreement with AEG&T/MEA/Homer, Chugach may be required
to grant a refund to AEG&T/MEA/Homer retroactive to January 1, 1997 (based on
the 1996 test year filing). A provision for wholesale rate refund of
approximately $1 million was still recorded at March 31, 1998 to accommodate
certain rate adjustment clauses contained in the Settlement Agreement.
Determination of the final refund amount still awaits an APUC order in Docket
U-96-37.
Higher fuel prices were again the major cause for the increase in production
expense for the quarter ended March 31, 1998 versus the same period in 1997.
Additionally, the rate stabilization fund and the submarine cable reserve were
fully amortized as offsets to fuel expense during 1997. There were no similar
offsets in 1998. As previously reported, Chugach has completed the transition
into Period 2 under the long-term fuel supply contracts. Fuel costs now result
from market-based prices. Purchased power expense was lower for the quarter
ended March 31, 1998 compared to the same period in 1997. This variance was
substantially due to the system-operating scenario that existed during the first
quarter of 1997. Chugach purchased power from AEG&T's Soldotna 1 plant to ensure
reliability on the Kenai Peninsula. In addition, purchases were made from
Anchorage Municipal Light & Power during maintenance on one of Chugach's
transmission lines from the Beluga power plant. This
8
<PAGE>
system-operating scenario did not exist during the first quarter of 1998 which
explains the decrease in purchased power expense. Transmission expense was lower
for the quarter ended March 31, 1998 from the same period in 1997. Conversely,
distribution expenses were higher in the first quarter of 1998 compared to 1997.
These variances were primarily attributed to overhead line and station equipment
maintenance activities being focused on the transmission system in 1997 and the
distribution system in 1998. Consumer accounts expense decreased for the quarter
ended March 31, 1998. The majority of this decrease was due to a lower level of
common information services costs being allocated to this function. This
decrease was offset somewhat by the addition of sales expense to the consumer
accounts expense category partially reflecting the impact of Chugach's newly
formed Marketing Department. Administrative, general and other expenses
increased for the three-month period ended March 31, 1998. This increase was
substantially due to a higher level of common information services costs being
allocated to this function.
Other interest expense decreased in the current period due to a lower average
outstanding balance on the short-term line of credit.
Other nonoperating margins were higher for the quarter ended March 31, 1998
compared to the same period in 1997. This difference was due mostly to patronage
capital credits received from CoBank.
Financial Condition
Total assets declined by 0.9% from December 31, 1997 to March 31, 1998. The
decrease is due primarily to lower balances in the electric plant accounts. A
decline in accounts receivable also contributed to the overall decrease. The
lower balances in the electric plant accounts were caused by the adoption of a
new method of accounting for depreciation of the general plant asset class.
Beginning in January of 1998, general plant assets were amortized by account
classification instead of being depreciated on an individual asset basis.
Adoption of this method resulted in the write-off (to accumulated depreciation)
of general plant assets that were acquired prior to the beginning of the
amortization periods. The decline in accounts receivable was primarily caused by
paydowns received on the undercollected fuel surcharge balance and
reimbursements received related to the Standard Steel matter. Notable changes to
total liabilities include the decrease in First Mortgage bonds payable resulting
from the March bond payment and the $8.5 million draw on the CoBank line of
credit. Accrued interest also decreased due to the March semi-annual bond
payment.
Liquidity and Capital Resources
Chugach has satisfied its operational and capital cash requirements primarily
through internally generated funds, an annual $50 million line of credit from
NRUCFC and a $35 million line of credit with CoBank. At March 31, 1998, Chugach
had $8.5 million outstanding with CoBank, which carried an interest rate of
6.65%. There were no amounts outstanding on the NRUCFC line at March 31, 1998.
Capital construction in 1998 is estimated at $28 million. At March 31, 1998
approximately $2.3 million has been expended. Capital improvement expenditures
are expected to increase
9
<PAGE>
in the upcoming second and third quarters as the construction season begins in
April and extends into October.
Chugach has negotiated a supplemental indenture (Third Supplemental Indenture of
Trust) with CoBank that previously allowed up to $80 million in future bond
financing. Chugach finalized an amendment to the Third Supplemental Indenture of
Trust (Seventh Supplemental Indenture of Trust) that eliminated the maximum
aggregate amount of bonds the company may issue under the agreement. At March
31, 1998, Chugach had bonds in the amount of $71.2 million outstanding under
this financing arrangement. The balance is comprised of a $1.2 million bond
(CoBank 1) which carries an interest rate of 8.95% maturing in 2002, a $10
million bond (CoBank 2) priced at 7.76% due in 2005, a $21.5 million bond
(CoBank 3), currently priced at 6.65% (repriced periodically), a $23.5 million
bond (CoBank 4) currently priced at 6.65% (also repriced periodically), and a
$15 million bond (CoBank 5) currently priced at 6.65% (also repriced
periodically) due in 2002, 2007 and 2012. Principal payments on the CoBank 3 and
4 bonds commence in 2003 and continue through 2022. Additionally, Chugach has
negotiated a similar supplemental indenture (Fifth Supplemental Indenture of
Trust) with NRUCFC for $80 million. At March 31, 1998 there were no amounts
outstanding under this financing arrangement.
As previously reported, Chugach has reacquired $44.3 million of its Series A
2022 bonds. This strategy has been in response to the favorable long-term
interest rate environment. Chugach will continue to explore similar
reacquisition transactions if market conditions warrant such action. Except for
any further reacquisitions of its bonds (and any similar future refinancings),
Chugach does not anticipate issuance of additional long-term debt in 1998.
Chugach management continues to expect that cash flows from operations and
external funding sources will be sufficient to cover operational and capital
funding requirements in 1998 and thereafter.
Environmental Matters
Refer to Part II, Item 1 for an update on the status of the Standard Steel
Salvage Yard Site litigation.
10
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings
A cost recovery action was filed in Federal District Court on December 27, 1991
by the United States against Chugach and six other Potentially Responsible
Parties (PRPs) seeking reimbursement of removal and response action costs (Past
Response Costs) incurred by US EPA at the Standard Steel and Metals Salvage Yard
Superfund Site in Anchorage, Alaska (Site). The six other PRPs named in the
action are the Alaska Railroad, Westinghouse Electric Corporation, Sears,
Roebuck and Co., Montgomery Ward & Co., J.C. Penney Company, Inc. and
Bridgestone/Firestone, Inc. In December, 1996, Chugach, the other named PRPs and
certain federal agency PRPs (Federal PRPs) entered into a Partial Consent
Decree. Under the Partial Consent Decree, Chugach and the other parties settled
claims for Past Response Costs as well as investigation and other costs incurred
with respect to the Site through December 1996. The Partial Consent Decree,
however, did not settle Chugach's liability for future costs of designing and
performing the cleanup at the Site (Future Costs).
Although the Partial Consent Decree did not settle Chugach's or the other
private PRPs' liability for Future Costs, the Partial Consent Decree binds the
Federal PRPs and the Alaska Railroad to pay an aggregate share of 64% of Future
Costs. Chugach and the five other private PRPs have reached a separate
settlement to divide the remaining 36% of Future Costs among themselves. Under
that settlement, Chugach's percentage share of liability for Future Costs will
equal 14.89%. The private PRPs' agreement to perform remedial design and
remedial action (RD/RA) at the Site is memorialized in a new Consent Decree
(RD/RA Decree) that was entered by the Federal District Court in January 1998.
The RD/RA Decree contains the scope of work for the RD/RA as well as settlement
terms, including EPA's covenant not to sue Chugach and the other private PRPs
for Future Costs once the RD/RA is completed.
The estimate of Future Costs of RD/RA at the Site, as determined by Chugach's
consultants based on cost estimates contained in the FS report, ranges from
$5,231,200 to $6,619,800. The RD/RA Decree contains a cost estimate, as
determined by EPA and including a 50% cost overrun contingency, of $8,400,000.
Chugach's share of these estimated RD/RA expenses would range from approximately
$778,926 to $1,250,760. Based on recent bid documents for the remedial action,
it seems unlikely that the RD/RA will cost as much as EPA's high-end estimate.
These amounts are only estimates, however, and cannot be definitively known
until the RD/RA work at the Site is completed in late 1998 or 1999.
Under the RD/RA Decree, Chugach and the other PRPs are required to reimburse the
United States for EPA oversight costs and DOJ enforcement costs relating to the
RD/RA. Those costs have been estimated by the United States to equal
approximately $676,000. Chugach's share of these estimated oversight and
enforcement costs would equal $100,656. In addition, one of the private PRPs,
Montgomery Ward, recently filed for bankruptcy protection and did not execute
the RD/RA Consent Decree. As a result, Chugach will be paying an additional sum
equal to Chugach's percentage share of Montgomery Ward's share of Future Costs.
This additional sum is estimated to be approximately $12,600 given current
estimates of Future Costs, EPA oversight costs and DOJ enforcement costs.
11
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Based on the above estimates, the total amount that may be owed by Chugach under
the RD/RA Decree ranges from approximately $892,182 to $1,364,016. These
amounts, particularly the projected EPA oversight costs, are only estimates and
are subject to change, although, in light of recent bid documents, Chugach does
not anticipate that the costs will reach the high-end estimate. In addition, the
RD/RA Decree contains reservation of rights allowing EPA to seek further
response actions and payments from the PRPs under certain circumstances,
including for costs associated with alleged natural resource damages. At this
time, no claims have been made pertaining to alleged natural resource damages
and no prediction can be made whether EPA will request activities through its
reservation of rights under the RD/RA Decree.
Four of Chugach's insurance carriers have been paying, under a reservation of
rights, Chugach's costs of defense for the Site. The carriers reserved their
rights regarding indemnification of Chugach for response costs. In February
1998, Chugach reached an agreement in principle with these four insurance
carriers pursuant to which the carriers will pay the majority of Chugach's costs
relating to the Site, including Past Costs, Future Costs, and attorney's fees.
This settlement preserves Chugach's potential claim for natural resource damages
and is anticipated to result in Chugach paying no more than $500,000 for all
Site costs. Management believes that the latter amount would be fully
recoverable in rates and therefore would have no impact on Chugach's financial
condition or results of operations.
Items 2, 3, 4 and 5
Not applicable
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
Eighth Supplemental Indenture of Trust dated as of February 4, 1998,by
and between Chugach Electric Association, Inc. and Security Pacific
Bank Washington, N.A.
Amendment to Employment Agreement by and among Chugach Electric
Association, Inc. and Eugene N. Bjornstad dated February 25, 1998.
Memorandum of Agreement by and among Chugach Electric Association,
Inc. and Admiral Insurance Company Alaska, Alaska National Insurance
Company, Nationwide Mutual Insurance Company and Providence Washington
Insurance Company relating to Chugach's PRP obligations at the
Standard Steel Superfund Site dated February 3, 1998.
CERCLA Remedial Design and Remedial Action Consent Decree in the
Standard Steel Superfund Site matter dated January 24, 1998.
Financial Data Schedule
(b) Reports on Form 8-K:
No reports on Form 8-K were filed for the quarter ended March 31, 1998.
12
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CHUGACH ELECTRIC ASSOCIATION, INC.
By: /s/ Eugene N. Bjornstad
Eugene N. Bjornstad, General Manager
Date: May 15, 1998
By: /s/ Evan J. Griffith, Jr.
Evan J. Griffith, Jr.
Executive Manager, Finance & Energy Supply
Date: May 15, 1998
13
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EXHIBITS
Listed below are the exhibits which are filed as part of this Report:
Exhibit
number Description Page
4.9 Eighth Supplemental Indenture of Trust dated as of February 4,
1998, by and between Chugach Electric Association, Inc. and
Security Pacific Bank Washington, N.A. 15
10.60.1 Amendment to Employment Agreement by and among Chugach
Electric Association, Inc. and Eugene N. Bjornstad dated
February 25, 1998. 21
19.3 Memorandum of Agreement by and among Chugach Electric
Association, Inc. and Admiral Insurance Company Alaska, Alaska
National Insurance Company, Nationwide Mutual Insurance
Company and Providence Washington Insurance Company
relating to Chugach's PRP obligations at the Standard Steel
Superfund Site dated February 3, 1998. 22
19.4 CERCLA Remedial Design and Remedial Action Consent Decree
in the Standard Steel Superfund Site matter dated January 24,
1998. 25
27 Financial Data Schedule **
** Filed Electronically
14
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Return to:
Don Edwards, General Counsel
Chugach Electric Association, Inc.
P.O. Box 196300
Anchorage, AK 99519-6300
EIGHTH SUPPLEMENTAL INDENTURE OF TRUST
(Adding Legal Description of Additional Real Property
Acquired by the Company to Exhibit A of the Indenture)
THIS EIGHTH SUPPLEMENTAL INDENTURE OF TRUST, dated as of February 4,
1998, is amendatory and supplemental to that certain Indenture of Trust dated
September 15, 1991 (the "Original Indenture"), by and between CHUGACH ELECTRIC
ASSOCIATION, INC., an Alaska electric cooperative (the "Company"), and SECURITY
PACIFIC BANK WASHINGTON, N.A., a national banking association, recorded
September 25, 1991, under the following recording numbers:
Recording District Recording Number, Book and Page
Anchorage 91-040327 (Book 2195, Page 178)
Kenai 91-7151 (Book 389, Page 637)
Palmer 91-011276 (Book 663, Page 167)
Seward 91-1051 (Book 62, Page 251)
Valdez 91-0738 (Book 114, Page 233)
The Original Indenture was amended by those, First, Second, Third,
Fourth, Fifth, Sixth and Seventh Supplemental Indentures, dated as of March 17,
1993, May 19, 1994, June 29, 1994, March 1, 1995, September 6, 1995, April 3,
1996 and June 1, 1997, respectively, and recorded as follows:
<PAGE>
<TABLE>
<S> <C> <C> <C>
RECORDING Supplemental Recording Number, Book and Recording Date
DISTRICT Indenture Page
Anchorage First 93-014587 (Book 2394, Page 638) March 30, 1993
Second 94-036094 (Book 2656, Page 313) May 23, 1994
Third 94-046579 (Book 2678, Page 629) July 11, 1994
Fourth 95-015010 (Book 2772, Page 604) March 31, 1995
Fifth 96-006182 (Book 2886, Page 853) February 12, 1996
Sixth 96-028052 (Book 2936, Page 602) June 10, 1996
Seventh 97-044282 (Book 3117, Page 356) September 2, 1997
Kenai First 94-3630 (Book 441, Page 841) April 27, 1994
Second 94-4844 (Book 444, Page 348) May 31, 1994
Third 94-6354 (Book 447, Page 238) July 11, 1994
Fourth 95-0383 (Book 461, Page 299) April 10, 1995
Fifth 96-1826 (Book 480, Page 485) March 12, 1996
Sixth 96-4713 (Book 486, Page 796) June 18, 1996
Seventh 97-7086 (Book 513, Page 807) September 4, 1997
Palmer First 94-6629 (Book 763, Page 279) April 26, 1994
Second 94-008794 (Book 768, Page 219) May 27, 1994
Third 94-011249 (Book 773, Page 460) July 11, 1994
Fourth 95-003739 (Book 0800, Page 693) April 4, 1995
Fifth 96-003374 (Book 0840, Page 390) March 12, 1996
Sixth 96-008674 (Book 0852, Page 453) June 18, 1996
Seventh 97-014700 (Book 0911, Page 038) September 4, 1997
Seward First 94-562 (Book 72, Page 239) April 29, 1994
Second 94-0832 (Book 72, Page 786) June 2, 1994
Third 94-1091 (Book 73, Page 283) July 12, 1994
Fourth 95-0392 (Book 76, Page 575) April 4, 1995
Fifth 96-0301 (Book 80, Page 589) February 29, 1996
Sixth 96-0853 (Book 81, Page 859) June 19, 1996
Seventh 97-1278 (Book 87, Page 352) September 10, 1997
Valdez First 94-0604 (Book 122, Page 677) April 27, 1994
Second 94-0767 (Book 122, Page 967) May 31, 1994
Third 94-0971 (Book 123, Page 269) July 11, 1994
Fourth 95-0383 (Book 126, Page 214) April 10, 1995
Fifth 96-0158 (Book 128, Page 435) February 28, 1996
Sixth 96-0550 (Book 129, Page 361) June 19, 1996
Seventh 97-0972 (Book 133, Page 332) September 22, 1997
</TABLE>
<PAGE>
The Original Indenture, as amended by the First, Second, Third, Fourth,
Fifth, Sixth and Seventh Supplemental Indentures, is referred to herein as the
"Indenture." All capitalized terms used and not otherwise defined in this Eighth
Supplemental Indenture shall have the meanings assigned to those terms in the
Indenture, except where the context clearly indicates otherwise.
The Indenture secures payment of the principal of (and premium, if any)
and interest on the Outstanding Secured Bonds (as defined in the Indenture) and
the performance of the covenants contained in such Outstanding Secured Bonds and
the Indenture.
Pursuant to the Indenture, the Company did grant, bargain, sell, alien,
remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set
over and confirm to Security Pacific Bank Washington, N.A., as Trustee, all
property, rights, privileges and franchises of the Company of every kind and
description, real, personal or mixed, tangible and intangible, whether then
owned or thereafter acquired by the Company, except any Excepted Property (as
defined in the Indenture), and granted a security interest therein for the
purposes therein expressed.
The purpose of the First, Second, Fourth, Fifth and Sixth Supplemental
Indenture was to confirm the Company's intention that certain real property
(described in the respective Supplemental Indentures) acquired by the Company
after the date of the Original Indenture be subjected to the lien of the
Indenture, and to confirm the substitution of Seattle-First National Bank
(successor by merger to the original Trustee, Security Pacific Bank Washington,
N.A.) as Trustee under the Indenture. The purpose of the Third Supplemental
Indenture was to establish a new series of bonds to be designated First Mortgage
Bonds, CoBank Series, to be issued to the National Bank for Cooperatives
pursuant to the terms of a Credit Agreement between the Company and the National
Bank for Cooperatives. The National Bank for Cooperatives was subsequently
merged into CoBank, ACB ("CoBank"), which has thereby succeeded to the interests
of the National Bank for Cooperatives under such Credit Agreement and all
outstanding CoBank Bonds. The purpose of the Seventh Supplemental Indenture was
to amend the terms of the Third Supplemental Indenture establishing the First
Mortgage Bonds, CoBank Series, to eliminate the maximum aggregate amount of
bonds of such series the Company may issue.
As a result of the acquisition by First Trust National Association, a
national banking association, of the trust business of Bank of America NW, N.A.
(formerly known as Seattle-First National Bank), First Trust National
Association has succeeded to the interest of the Trustee under the Indenture.
On August 19, 1997 the Company acquired additional interests in real
property which real property was not specifically described in Exhibit A to the
Indenture, but which interest was intended to be subjected to the lien of the
Indenture from and after the date of the Company's acquisition thereof.
<PAGE>
The purpose of this Eighth Supplemental Indenture is to confirm that
the Company's interest in the real property described in Exhibit A attached
hereto, including the Company's interest in all improvements thereon and
appurtenances thereto, is in all respects subject to the lien of the Indenture
in the same manner and to the same extent as if legally described in Exhibit A
to the Indenture, and Exhibit A to the Indenture is hereby amended to add the
Company's interest in the real property described in Exhibit A attached to this
Eighth Supplemental Indenture.
CHUGACH ELECTRIC ASSOCIATION, INC.,
an Alaska electric cooperative
By /s/ Eugene N. Bjornstad
Title: General Manager
FIRST TRUST NATIONAL ASSOCIATION,
a national banking association
By /s/ Mike Jones
Title: Assistant Vice President
<PAGE>
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this 11th day of
February, 1998, by Eugene N. Bjornstad, the General Manager of CHUGACH ELECTRIC
ASSOCIATION, INC., an Alaska electric cooperative, on behalf of the cooperative.
/s/ Dianne Hillemeyer
NOTARY PUBLIC in and for Alaska.
My commission expires 5-13-2000.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Michael A.
Jones, is the person who appeared before me, and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Assistant Vice President of FIRST TRUST
NATIONAL ASSOCIATION, to be the free and voluntary act and deed of said national
banking association, for the uses and purposes therein mentioned.
Given under my hand and official seal this 17 day of February, 1998.
/s/ Colleen Rideout
Print name: Colleen Rideout
NOTARY PUBLIC in and for
Washington, residing at
King County My commission
expires 4/25/99.
<PAGE>
EXHIBIT A
(Eighth Supplement Indenture)
Lot Twenty Eight (28), Block Two (2), Settlers Bay Subdivision Unit No. 1,
according to Plat No. 75-61, Palmer Recording District, Third Judicial District,
State of Alaska.
<PAGE>
AMENDMENT TO EMPLOYMENT AGREEMENT
Based on the unanimous vote of the Board of Directors on February 25, 1998, the
term of the employment contract for General Manager Eugene N. Bjornstad is
hereby extended to October 24, 1999. Additionally, his annual performance
evaluation will be conducted prior to April 24 of each year rather than the date
presently in the employment agreement and in Board Policies 200, 201, and 202.
Signed: Attested:
/s/ Patricia B. Jasper /s/ Christopher J. Birch
Patricia B. Jasper, President Christopher J. Birch, Secretary
Board of Directors Board of Directors
Accepted:
/s/ Eugene N. Bjornstad
Eugene N. Bjornstad, General Manager
April 8, 1998
<PAGE>
MEMORANDUM OF AGREEMENT
The undersigned parties agree to settle all claims except with respect
to NRDA issues that Chugach Electric Association (Chugach) could assert as
arising under its insurance policies with Admiral Insurance Company, Alaska
National Insurance Company, Nationwide Mutual Insurance Company and Providence
Washington Insurance Company (insurers) in relation to Chugach's PRP obligations
at the Standard Steel Superfund site. The terms of the settlement are as
follows:
1. On or before March 15, 1998, the Insurers will bring current the Heller
Ehrman bills with interest running at 101/2% from 1-1-1998. These bills include
$8,750.71 owed on 1990-91 billings and current billings in the amount of
$7,496.40.
2. On March 15, 1998 or thirty days after Chugach provides the Insurers
with documentation supporting its claim for payment, whichever is later, the
Insurers will pay 100% of the following: 50% of the partial consent decree costs
minus the scrap removal costs ($433,611). This amount will be allocated to
defense costs. The Insurers will also pay 77.5% of the remaining 50% partial
consent decree costs, the scrap removal costs, the 1997 RD/RA and oversight
costs. This 77.5% payment will be allocated to indemnity. Interest will run at
the rate of 8% simple interest from the date this payment is due.
3. On 12-1-98 and 12-1-99 or thirty days after Chugach provides the
Insurers with documentation supporting its claim for payment whichever is later,
the Insurers will pay 77.5% of the RD/RA and oversight costs incurred since the
last payment. These progress payments will be allocated to indemnity. Interest
will run at the rate of 8% simple interest from the date a payment is due.
4. On the earlier of EPA certification of completion of remedial action or
1-1-2001, assuming documentation has been provided at least thirty days before
payment is due, the Insurers will pay 77.5% of the RD/RA and oversight costs
incurred since the last payment. The Insurers will also pay 90% of the present
value of Chugach's likely future obligations for O & M costs, oversight and
defense costs. This present value will be set by the PRP's consultant. If the
present value of Chugach's share is set at less than $100,000, the Insurers
agree to be bound by this determination. If this amount is set at or over
$100,000 and the parties cannot agree on the amount,
<PAGE>
the parties will try to agree on a single mutually acceptable consultant to set
the present value of Chugach's future obligations. If the parties cannot agree
on a consultant, each side will pick a consultant and the two consultants will
pick a third consultant and all three consultants will set the lump sum present
value of Chugach's future obligations. The decision of two of the three
consultants will be binding. The cost of a single consultant, or, if three
consultants are used, the "swing" consultant, will be paid on a 50-50 basis by
Chugach and the Insurers. If three consultants are used, each party will pay the
full cost of the consultant it selected. Interest will run at the rate of 8%
from the date payment is due.
5. The Insurers will pay 90% of reasonable and necessary defense costs
going forward as of March 1, 1998 until EPA certification or 1-1-2001 whichever
is earlier, assuming prior thirty day documentation. Attorneys fees incurred for
January and February of 1998 will be paid on a 100% basis with the Insurers
retaining their right to audit and dispute such bills and will be due within
thirty days of receipt of billing.
6. Chugach and Providence Washington agree that the 1978 policy will be
treated as if it has limits of $50,000 for liability on account of property
damage for purposes of this settlement but the parties agree that this will not
waive Chugach's right to argue in any future claims that this policy had higher
limits.
7. The parties agree that they will work cooperatively together to retain
as much confidentiality as possible of this settlement while acknowledging that
Chugach has substantial disclosure obligations.
8. Each insurer agrees, that as to their own policies, they will allocate
payments made under this settlement on a pro rata horizontal basis. The Insurers
do not agree to allocate on a pro rata basis as between them. Providence
Washington will not allocate horizontally to policies before 1-1-78.
9. All NRDA issues, whether related to defense or indemnification
obligations, are excluded from this settlement.
10. Heller Ehrman will prepare the final settlement documents with the
Insurers retaining their right to review and edit.
<PAGE>
DATED this 3rd day of February 1998.
/s/ Gary Oehler /s/ Richard Rizk
ANIC For Nationwide Mutual
/s/ Jerret E. Sale /s/ James E. Horne
for Prov. Wash. For Admiral Insurance Company
/s/ Carol Johnson
for Chugach Electric Assoc, Inc.
<PAGE>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
- -----------------------------------
)
UNITED STATES OF AMERICA, )
)
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) A91-0589-CV (JWS)
)
ALASKA RAILROAD CORPORATION, )
CHUGACH ELECTRIC ASSOCIATION, INC.,)
WESTINGHOUSE ELECTRIC CORPORATION, )
SEARS, ROEBUCK AND COMPANY, )
MONTGOMERY WARD AND COMPANY, INC. )
J.C. PENNEY COMPANY, INC., AND )
BRIDGESTONE/FIRESTONE, INC., )
)
Defendants. )
- -----------------------------------)
CERCLA REMEDIAL DESIGN AND REMEDIAL ACTION CONSENT DECREE
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 1
<PAGE>
TABLE OF CONTENTS
Page
I. BACKGROUND. . . . . . . . . . . . . . . . . . . . . 3
II. JURISDICTION. . . . . . . . . . . . . . . . . . . . 7
III. PARTIES BOUND . . . . . . . . . . . . . . . . . . . 8
IV. DEFINITIONS . . . . . . . . . . . . . . . . . . . . 9
V. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . 16
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS. . . 18
VII. REMEDY REVIEW . . . . . . . . . . . . . . . . . . . 31
VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS. . . 33
IX. ACCESS AND INSTITUTIONAL CONTROLS . . . . . . . . . 35
X. REPORTING REQUIREMENTS. . . . . . . . . . . . . . . 42
XI. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS . . . . 45
XII. PROJECT COORDINATORS. . . . . . . . . . . . . . . . 48
XIII. ASSURANCE OF ABILITY TO COMPLETE WORK . . . . . . . 50
XIV. CERTIFICATION OF COMPLETION . . . . . . . . . . . . 52
XV. EMERGENCY RESPONSE. . . . . . . . . . . . . . . . . 54
XVI. REIMBURSEMENT OF RESPONSE COSTS . . . . . . . . . . 56
XVII. INDEMNIFICATION AND INSURANCE . . . . . . . . . . . 60
XVIII. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . 64
XIX. DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . 67
XX. STIPULATED PENALTIES. . . . . . . . . . . . . . . . 73
XXI. COVENANTS NOT TO SUE BY PLAINTIFF . . . . . . . . . 81
XII. COVENANTS BY SETTLING DEFENDANTS AND
OWNER SETTLING DEFENDANT. . . . . . . . . . . . . . 87
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION . . . 89
XXIV. ACCESS TO INFORMATION . . . . . . . . . . . . . . . 91
XXV. RETENTION OF RECORDS. . . . . . . . . . . . . . . . 93
XXVI. NOTICES AND SUBMISSIONS . . . . . . . . . . . . . . 94
XXVII. EFFECTIVE DATE. . . . . . . . . . . . . . . . . . . 96
XXVIII. RETENTION OF JURISDICTION . . . . . . . . . . . . . 96
XXIX. APPENDICES. . . . . . . . . . . . . . . . . . . . . 96
XXX. COMMUNITY RELATIONS . . . . . . . . . . . . . . . . 97
XXXI. MODIFICATION. . . . . . . . . . . . . . . . . . . . 97
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT. . . . . 98
XXXIII. SIGNATORIES/SERVICE . . . . . . . . . . . . . . . . 99
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 2
<PAGE>
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 on December 6, 1991, pursuant to
Sections 104, 107, and 113 of the Comprehensive Environmental Response,
Compensation, and Liability
Act ("CERCLA"), 42 U.S.C. ss.ss. 9604, 9607, 9613.
B. Simultaneously with the lodging of this CERCLA Remedial
Design and Remedial Action Consent Decree ("Consent Decree"), the United States
has filed an amended complaint in this matter pursuant to Sections 106, 107, and
113 of CERCLA, 42 U.S.C. ss.ss. 9606, 9607, and 9613.
C. The United States in its amended complaint seeks, inter
alia: (1) reimbursement of costs incurred by EPA and the Department of Justice
for response actions at the Standard Steel and Metals Salvage Yard Superfund
Site ("Site") in the Municipality of Anchorage, Alaska, together with accrued
interest, if any; and (2) performance of studies and response actions by the
defendants at the Site consistent with the National Oil and Hazardous Substance
Pollution Contingency Plan, 40 C.F.R. Part 300 (as amended) ("NCP").
D. In accordance with the NCP and Section 121(f)(1)(F) of
CERCLA, 42 U.S.C. ss. 9621(f)(1)(F), EPA notified the State of Alaska (the
"State") on November 6, 1996, of negotiations with potentially responsible
parties regarding the implementation of the remedial design and remedial action
for the
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 3
<PAGE>
Site, and EPA has provided the State with an opportunity to participate in such
negotiations and be a party to this Consent Decree.
E. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C.
ss. 9622(j)(1), EPA notified the U.S. Department of the Interior and the
National Oceanic and Atmospheric Administration on November 6, 1996, and the
Alaska Department of Environmental Conservation on November 13, 1996, of
negotiations with potentially responsible parties regarding the release of
hazardous substances that may have resulted in injury to the natural resources
under Federal and State trusteeship, and encouraged the trustees to participate
in the negotiation of this Consent Decree.
F. The defendants that have entered into this Consent Decree
("Settling Defendants and Owner Settling Defendant") do not admit any liability
to the Plaintiff arising out of the transactions or occurrences alleged in the
amended 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.
G. Pursuant to Section 105 of CERCLA, 42 U.S.C. ss. 9605, EPA
placed the Site on the National Priorities List ("NPL"), set forth at 40 C.F.R.
Part 300, Appendix B, by publication in the Federal Register on August 30, 1990,
55 Fed.
Reg. 35502.
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 4
<PAGE>
H. In response to a release or a substantial threat of a
release of a hazardous substance at or from the Site, Defendant Chugach Electric
Association, Inc. performed a Remedial Investigation and Feasibility Study
("RI/FS") for the Site pursuant to 40 C.F.R. ss. 300.430 under an Administrative
Order on Consent, Docket Nos. 1091-07-02-107 and 1091-07-01-120, dated September
25, 1992, as amended on July 6 and October 24, 1994, and by the Partial Consent
Decree, entered by the Court on December 11, 1996 ("AOC").
I. Pursuant to the AOC, Defendant Chugach Electric
Association, Inc. completed a Remedial Investigation ("RI") Report in August of
1994, and a Feasibility Study ("FS") Report in January of 1996.
J. Some of the Defendants alleged, in response to the original
complaint, that certain federal agencies and instrumentalities are among the
classes of persons identified in Section 107(a) of CERCLA as liable for response
costs incurred with respect to the Site. These federal agencies and
instrumentalities (the "Federal PRPs") reimbursed to Chugach 75% of the costs of
performing the RI/FS. In addition, pursuant to the Partial Consent Decree,
defined at Section IV, Paragraph N. below, the Federal PRPs are obligated to
fund 61.50% of all Future Costs, as defined in Paragraph 3.n. of the Partial
Consent Decree, which includes the costs of performing the Work (defined in
Paragraph 4 below) and other costs.
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 5
<PAGE>
K. Pursuant to Section 117 of CERCLA, 42 U.S.C. ss. 9617, EPA
published notice of the completion of the FS and of the proposed plan for
remedial action on March 18, 1996, in a major local newspaper of general
circulation. EPA provided an opportunity for written and oral comments from the
public on the proposed plan for remedial action. A copy of the transcript of the
public meeting is available to the public as part of the administrative record
upon which the Regional Administrator based the selection of the response
action.
L. 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 July 16, 1996, on which the State has given its concurrence. The ROD
includes EPA's explanation for any significant differences between the final
plan and the proposed plan as well as a responsiveness summary to the public
comments. Notice of the final plan was published in accordance with Section
117(b) of CERCLA, 42 U.S.C. ss. 9617(b).
M. Based on the information presently available to EPA, EPA
believes that the Work and Institutional Controls (defined in Paragraph 4 below)
will be properly and promptly conducted by the Settling Defendants and Owner
Settling Defendant, if conducted in accordance with the requirements of this
Consent Decree and its appendices.
N. Solely for the purposes of Section 113(j) of CERCLA, 42
U.S.C. ss. 9613(j), the Remedial Action selected by the ROD and the Work to be
performed by the Settling Defendants and
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 6
<PAGE>
the Institutional Controls to be implemented by Owner Settling Defendant shall
constitute response actions taken or ordered by the President.
O. 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. ss.ss. 1331 and 1345, and 42 U.S.C. ss.ss. 9606,
9607, and 9613(b). This Court also has personal jurisdiction over the Settling
Defendants and Owner Settling Defendant. Solely for the purposes of this Consent
Decree and the underlying amended complaint, Settling Defendants and Owner
Settling Defendant waive all objections and defenses that they may have to
jurisdiction of the Court or to venue in this District. The Parties shall not
challenge the terms of this Consent Decree or this Court's jurisdiction to enter
and enforce this Consent Decree.
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 7
<PAGE>
III. PARTIES BOUND
2. This Consent Decree applies to and is binding upon the
Parties and their agents, successors, and assigns. Any change in ownership or
corporate status of a Settling Defendant or Owner 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 or Owner Settling Defendant's
responsibilities under this Consent Decree.
3. Settling Defendants shall provide a copy of this Consent
Decree to each contractor hired to perform the Work (as defined in Paragraph 4
below) required by this Consent Decree and to each person representing any
Settling Defendant with respect to the Site or the Work, and shall condition all
contracts entered into hereunder upon performance of the Work in conformity with
the terms of this Consent Decree. If Owner Settling Defendant hires a contractor
or outside party to perform Institutional Controls, it shall provide such
contractor or outside party with a copy of this Consent Decree and shall
condition all contracts entered into hereunder upon performance of the
Institutional Controls in conformity with the terms of this Consent Decree.
Settling Defendants and, if applicable, Owner Settling Defendant or their
contractors shall provide written notice of the Consent Decree to all
subcontractors hired to perform any portion of the Work or Institutional
Controls required by this Consent Decree. Settling Defendants and, if
applicable, Owner Settling Defendant shall nonetheless be
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 8
<PAGE>
responsible for ensuring that their contractors and subcontractors perform the
Work or Institutional Controls contemplated herein in accordance with this
Consent Decree. With regard to the activities undertaken pursuant to this
Consent Decree, each contractor and subcontractor hired by Settling Defendants
or Owner Settling Defendant shall be deemed to be in a contractual relationship
with the Settling Defendants or Owner Settling Defendant, respectively, within
the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. ss. 9607(b)(3).
IV. DEFINITIONS
4. Unless otherwise expressly provided herein, terms used in
this Consent Decree which are defined in CERCLA or in regulations promulgated
under CERCLA shall have the meaning assigned to them in CERCLA or in such
regulations. Whenever terms listed below are used in this Consent Decree or in
the appendices attached hereto and incorporated hereunder, the following
definitions shall apply:
A. "ADEC" shall mean the Alaska Department of
Environmental Conservation and any successor departments or
agencies of the State;
B. "CERCLA" shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. ss.ss. 9601 et seq.;
C. "Consent Decree" or "Decree" shall mean this
CERCLA Remedial Design and Remedial Action Consent Decree and all
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 9
<PAGE>
appendices attached hereto (listed in Section XXIX). In the
event of conflict between this Decree and any appendix, this
Decree shall control;
D. "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;
E. "EPA" shall mean the United States Environmental
Protection Agency and any successor departments or agencies of
the United States;
F. "Federal PRPs" shall mean the Department of Transportation
(including the Federal Railroad Administration), the Department of Defense
(including the Defense Logistics Agency, the Defense Reutilization and Marketing
Service, and the Army & Air Force Exchange Service), and any successor agencies,
departments or instrumentalities of the United States.
G. "Future Response Costs" shall mean all costs, including,
but not limited to, direct and indirect costs, that the United States (excluding
for this purpose, the Federal PRPs) incurs in reviewing or developing plans,
reports and other items pursuant to this Consent Decree, verifying the Work and
all Institutional Controls, or otherwise implementing, overseeing, or enforcing
this Consent Decree, including, but not limited to, payroll costs, contractor
costs, travel costs, laboratory costs,
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 10
<PAGE>
the costs incurred pursuant to Sections VII, IX (including, but not limited to,
the cost of attorney time and any monies paid to secure access and/or to secure
or implement Institutional Controls, including, but not limited to, the amount
of just compensation), XV, XI, and Paragraph 84 of Section XXI, minus
$53,665.18. Future Response Costs shall include all interim response costs
pursuant to 42 U.S.C. ss. 9607(a) paid or incurred but not yet paid by the
United States in connection with the Site as follows: (1) for EPA, on or after
July 16, 1996, and prior to the Effective Date of this Consent Decree, as
defined in Section XXVII below, and incurred for site ID 102P; and (2) for the
U.S. Department of Justice, Environmental Enforcement Section of the Environment
and Natural Resources Division, incurred after December 11, 1996, and prior to
the Effective Date of this Consent Decree, as defined in Section XXVII below,
and billed to DOJ File No. 90-11-3-810;
H. "Institutional Controls" shall mean land and water use
restrictions and access restrictions identified in the ROD, including, but not
limited to, restrictions in the form of contractual agreements, restrictive
covenants that run with the land, and governmental controls.
I. "Interest" shall mean interest at the rate specified for
interest on investments of the Hazardous Substance Superfund established under
Subchapter A of Chapter 98 of Title 26 of the U.S. Code, compounded on October 1
of each year, in accordance with 42 U.S.C. ss. 9607(a);
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 11
<PAGE>
J. "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. ss. 9605, codified at 40 C.F.R.
Part 300, and any amendments thereto;
K. "Operation and Maintenance" or "O&M" shall mean all
activities required to maintain the effectiveness of the Remedial Action as
provided in the ROD and required under the Operation and Maintenance Plan
approved or developed by EPA pursuant to this Consent Decree and the Statement
of Work (SOW);
L. "Owner Settling Defendant" shall mean the Alaska
Railroad Corporation, and any successor agency, department, or
corporation;
M. "Paragraph" shall mean a portion of this Consent
Decree identified by an arabic numeral or an upper case letter;
N. "Partial Consent Decree" shall mean the Partial Consent
Decree lodged in this Civil Action No. A91-0589-CV (JWS) on October 9, 1996, and
entered on December 11, 1996, and in which Settling Defendants, Defendant
Montgomery Ward and Company, Inc., Owner Settling Defendant, and the Federal
PRPs agreed, among other things, to: (1) reimburse the United States for Past
Costs, DOJ Enforcement Costs, and Oversight Costs, as those terms are defined in
the Partial Consent Decree; and (2) in which the Federal PRPs and the Owner
Settling Defendant collectively agreed to fund sixty-four percent (64%) of
Future Costs as that term is defined in the Partial Consent Decree;
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O. "Parties" shall mean the United States, the
Settling Defendants, and Owner Settling Defendant;
P. "Performance Standards" shall mean the cleanup
standards and other measures of achievement of the goals of the
Remedial Action, set forth in Section 9.0 of the ROD and Sections
2.0 and 3.0 of the SOW;
Q. "Plaintiff" shall mean the United States;
R. "RCRA" shall mean the Solid Waste Disposal Act, as
amended, 42 U.S.C. ss.ss. 6901 et seq. (also known as the Resource
Conservation and Recovery Act);
S. "Record of Decision" or "ROD" shall mean the EPA Record of
Decision relating to the Site signed on July 16, 1996, by the Regional
Administrator, EPA Region 10, and all attachments thereto. The ROD is attached
as Appendix A;
T. "Remedial Action" shall mean those activities, including
implementation of access and Institutional Controls, but excluding Operation and
Maintenance, to be undertaken by the Settling Defendants and Owner Settling
Defendant pursuant to this Consent Decree to implement the ROD, in accordance
with the SOW and the final Remedial Design and Remedial Action Work Plans and
other plans approved by EPA under this Consent Decree;
U. "Remedial Action Work Plan" shall mean the document
developed pursuant to Paragraph 12 of this Consent Decree and approved by EPA,
and any amendments thereto;
V. "Remedial Design" shall mean those activities to
be undertaken by the Settling Defendants to develop the final
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plans and specifications for the Remedial Action pursuant to the
Remedial Design Work Plan;
W. "Remedial Design Work Plan" shall mean the
document developed pursuant to Paragraph 11 of this Consent
Decree and approved by EPA, and any amendments thereto;
X. "Section" shall mean a portion of this Consent
Decree identified by a Roman numeral;
Y. "Settling Defendants" shall mean Chugach Electric
Association, Inc., Westinghouse Electric Corporation, Sears,
Roebuck and Company, J.C. Penney Company, Inc., and
Bridgestone/Firestone, Inc.;
Z. "Site" shall mean the Standard Steel and Metals Salvage
Yard Superfund Site, located at 2400 Railroad Avenue, in the Municipality of
Anchorage, Alaska, and more specifically described in the legal description
attached as Appendix C, which may be amended after the remedial action is
constructed. The Site is also depicted generally on the map attached as Appendix
D;
aa. "State" shall mean the State of Alaska;
bb. "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 of it made in accordance with this Consent
Decree;
cc. "Supervising Contractor" shall mean the principal
contractor retained by the Settling Defendants to supervise and
direct the implementation of the Work under this Consent Decree;
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dd. "Supplemental Institutional Controls" shall mean
institutional controls, other than those required pursuant to this Consent
Decree and identified in the ROD, that are developed, requested, or approved by
EPA for one or more of the following purposes: (1) to ensure non-interference
with the performance, operation and maintenance of any response actions at or
pertaining to the Site, other than the remedy selected in the ROD; (2) to ensure
the integrity and effectiveness of any response actions at or pertaining to the
Site, other than the remedy selected in the ROD; and (3) to otherwise ensure the
protection of public health, welfare, or the environment at and in connection
with the Site.
ee. "United States" shall mean the United States of
America;
ff. "Waste Material" shall mean (1) any "hazardous
substance" under Section 101(14) of CERCLA, 42 U.S.C. ss. 9601(14);
(2) any pollutant or contaminant under Section 101(33) of CERCLA,
42 U.S.C. ss. 9601(33); or (3) any "solid waste" under Section
1004(27) of RCRA, 42 U.S.C. ss. 6903(27); and
gg. "Work" shall mean all activities Settling Defendants are
required to perform under this Consent Decree, except those required by Section
XXV (Retention of Records). Work shall not mean the Institutional Controls that
Owner Settling Defendant is agreeing to perform and implement pursuant to
Section IX. of this Consent Decree.
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V. GENERAL PROVISIONS
5. Objectives of the Parties
The objectives of the Parties in entering into this Consent Decree are: (1)
to protect public health or welfare or the environment at the Site by the
performance of the Remedial Design and Remedial Action at the Site and the
performance of O&M at the Site; (2) the reimbursement of Future Response Costs
of the Plaintiff; and (3) the resolution of the claims of Plaintiff against
Settling Defendants and Owner Settling Defendant as provided in this Consent
Decree.
6. Commitments by Settling Defendants and Owner
Settling Defendant.
a. Settling Defendants shall 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 herein or developed by
Settling Defendants and approved by EPA pursuant to this Consent Decree.
Settling Defendants shall also reimburse the United States for Future Response
Costs as provided in this Consent Decree.
b. The obligations of Settling Defendants to perform the Work
under this Consent Decree are joint and several. In the event of the insolvency
or other failure of any one or more Settling Defendants to implement the
requirements of this Consent Decree, the remaining Settling Defendants shall
complete all such requirements (without waiving any rights such remaining
Settling Defendants may have against the defaulting Settling Defendant or
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its successors or assigns). Nonpayment by any person, including the Federal
PRPs, shall not be a defense to nonperformance of any provision of this Consent
Decree that Settling Defendants or Owner Settling Defendant are required to
perform.
c. Owner Settling Defendant shall finance and perform
Institutional Controls, including title notices, site use and access
restrictions, that are contained in Section IX of this Consent Decree and are
required by the ROD and SOW.
7. 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. Settling Defendants also
must comply with all applicable or relevant and appropriate requirements of all
Federal and state environmental laws as set forth in the ROD and the SOW. The
activities conducted pursuant to this Consent Decree, if approved by EPA, shall
be considered to be consistent with the NCP.
8. Permits
a. As provided in Section 121(e) of CERCLA, 42 U.S.C. ss.
9621(e), and Section 300.400(e) of the NCP, no permit shall be required for any
portion of the Work conducted entirely on-Site (i.e., within the areal extent of
contamination or in very close proximity to the contamination and necessary for
implementation of the Work). Where any portion of the Work that is not on-Site
requires a federal or state permit or approval, Settling
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Defendants shall submit timely and complete applications and take all other
actions necessary to obtain all such permits or approvals.
b. The Settling Defendants may seek relief under the
provisions of Section XVIII (Force Majeure) of this Consent Decree for any delay
in the performance of the Work resulting from a failure to obtain, or a delay in
obtaining, any permit required for the Work.
c. This Consent Decree is not, and shall not be construed to
be, a permit issued pursuant to any federal or state statute or regulation.
9. Nothing in this Consent Decree is intended to alter or
otherwise affect the provisions or terms of the Partial Consent Decree.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS
10. Selection of Supervising Contractor.
a. All aspects of the Work to be performed by
Settling Defendants pursuant to Sections VI (Performance of the Work by Settling
Defendants), VII (Remedy Review), VIII (Quality Assurance, Sampling and Data
Analysis), and XV (Emergency Response) of this Consent Decree shall be under the
direction and supervision of the Supervising Contractor, the selection of which
shall be subject to disapproval by EPA. Within ten (10) days after the lodging
of this Consent Decree, Settling Defendants shall notify EPA, in writing, of the
name, title, and
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qualifications of any contractor proposed to be the Supervising Contractor. EPA
will issue a notice of disapproval or an authorization to proceed. If at any
time thereafter, Settling Defendants propose to change a Supervising Contractor,
Settling 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.
b. If EPA disapproves a proposed Supervising Contractor, EPA
will notify Settling Defendants, in writing. Settling Defendants shall submit to
EPA a list of contractors, including the qualifications of each contractor, that
would be acceptable to them within thirty (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
Defendants may select any contractor from that list that is not disapproved and
shall notify EPA of the name of the contractor selected within twenty-one (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 the Settling Defendants from meeting one or more deadlines in a plan
approved by the EPA pursuant to this Consent Decree, Settling Defendants may
seek
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relief under the provisions of Section XVIII (Force Majeure)
hereof.
11. Remedial Design.
a. Within sixty (60) days after EPA's issuance of an
authorization to proceed pursuant to Paragraph 9, Settling Defendants shall
submit to EPA and the State a Work Plan for the design of the Remedial Action at
the Site ("Remedial Design Work Plan" or "RD Work Plan"). The Remedial Design
Work Plan shall provide for design of the remedy set forth in the ROD, in
accordance with the SOW and for achievement of the Performance Standards and
other requirements set forth in the ROD, this Consent Decree and/or the SOW.
Upon its approval by EPA, the Remedial Design Work Plan shall be incorporated
into and become enforceable under this Consent Decree.
b. The Remedial Design Work Plan shall include plans and
schedules for implementation of all remedial design and pre-design tasks
identified in the SOW. The Remedial Design Work Plan shall incorporate the
approved Design Level Treatability Study Work Plan and schedule therefor and
incorporate results of pre-design treatability studies, both of which were
drafted and performed pursuant to the AOC, as amended. The Remedial Design Work
Plan shall include, but not be limited to, plans and schedules for the
completion of: (1) a Sampling and Analysis Plan (SAP); (2) a Quality Assurance
Project Plan (QAPP); (3) a Field Sampling Plan (FSP); (4) a Construction Quality
Plan; (5) a conceptual design of the landfill (which is required in the ROD
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to meet requirements of the Toxics Substances and Control Act, 15 U.S.C. ss.
2601, ("TSCA")) and future use of the facility or a process to incorporate the
Owner Settling Defendant's planned future use of the Site; (6) a preliminary
(30%) design submittal; and (7) pre-final (95%) and final (100%) design
submittals. The Remedial Design Work Plan shall include a schedule for
completion of the Remedial Action Work Plan. Together with the RD Work Plan,
Settling Defendants shall submit 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. ss.
1910.120.
c. Upon approval of the Remedial Design Work Plan by EPA,
after a reasonable opportunity for review and comment by the State, Settling
Defendants shall implement the Remedial Design Work Plan. The Settling
Defendants shall submit to EPA and the State all plans, submittals and other
deliverables required under the approved Remedial Design Work Plan in accordance
with the approved schedule for review and approval pursuant to Section XI (EPA
Approval of Plans and Other Submissions). Unless otherwise directed or approved
in writing by EPA, Settling Defendants shall not commence further Remedial
Design activities at the Site prior to approval of the Remedial Design Work
Plan.
d. The preliminary thirty percent (30%) design submittal shall
include, at a minimum, the following: (1) preliminary plans, drawings, and
sketches, including design criteria; (2) available results of treatability
studies and
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additional field sampling; (3) design assumptions and parameters, including
design restrictions, process performance criteria, appropriate unit processes
for the treatment train, design duration and leachate generation of the
landfill; (4) proposed cleanup and treatment verification methods, including
compliance with Applicable or Relevant and Appropriate Requirements (ARARs); (5)
outline of required specifications; (6) proposed siting/location of treatment
equipment/construction activity; (7) expected long-term monitoring and operation
requirements; (8) preliminary construction schedule, including contracting
strategy; and (9) conceptual future use of the site. Together with the
preliminary (30%) design submittal, Settling Defendants shall submit a Health
and Safety Plan for construction activities which conforms to the applicable
Occupational Safety and Health Administration and EPA requirements including,
but not limited to, 29 C.F.R. ss. 1910.120.
e. The pre-final ninety-five percent (95%) and final design
one hundred percent (100%) submittal shall include, at a minimum, the following:
(1) a draft Operation and Maintenance Plan; (2) a Capital and Operation and
Maintenance Cost Estimate that revises the FS cost estimate; and (3) a final
project schedule for the construction and implementation of the RA which
identifies timing for initiation and completion of all critical path tasks.
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12. Remedial Action.
a. Within thirty (30) days after receipt of EPA's approval of
the final design submittal, Settling Defendants shall submit to EPA and the
State a Work Plan for the performance of the Remedial Action at the Site
("Remedial Action Work Plan"). The Remedial Action Work Plan shall provide for
construction and implementation of the remedy set forth in the ROD and
achievement of the Performance Standards, in accordance with this Consent
Decree, the ROD, the SOW, and the design plans and specifications developed in
accordance with the Remedial Design Work Plan and approved by EPA. Upon its
approval by EPA, the Remedial Action Work Plan shall be incorporated into and
become enforceable under this Consent Decree. At the same time as they submit
the Remedial Action Work Plan, Settling Defendants shall submit to EPA and the
State a Health and Safety Plan for field activities required by the Remedial
Action Work Plan which conforms to the applicable Occupational Safety and Health
Administration and EPA requirements including, but not limited to, 29 C.F.R. ss.
1910.120.
b. The Remedial Action Work Plan shall include the following:
(1) a Draft Performance Standard Verification Plan; (2) a Draft Construction
Quality Assurance Plan; (3) a Draft SAP including the final QAPP and final
FSP/Final H&S Plan/Final Contingency Plan; (4) Construction Management Plan; (5)
discussion and planning of the RA work elements, including rationale for the
various tasks; (6) relevant changes in the RD Work Plan, if any; (7)
identification of RA inspections, hold
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points, and reports; (8) identification of protocol and coordination of field
oversight and preliminary field inspections where applicable; (9) contingency
procedures; (10) a Waste Management Plan; (11) a Project Management Plan; (12)
Equipment Decontamination Plan; (13) performance measurement points and
rationale for their selection; and (14) any other procedures relevant to the RA.
The Remedial Action Work Plan also shall include a schedule for implementation
of all Remedial Action tasks identified in the final design submittal.
c. Upon approval of the Remedial Action Work Plan by EPA,
after a reasonable opportunity for review and comment by the State, Settling
Defendants shall implement the activities required under the Remedial Action
Work Plan in accordance with the schedule therein. The Settling Defendants shall
submit to EPA and the State all plans, submittals, or other deliverables
required under the approved Remedial Action Work Plan in accordance with the
approved schedule for review and approval pursuant to Section XI (EPA Approval
of Plans and Other Submissions). Unless otherwise directed by EPA or approved in
writing, Settling Defendants shall not commence physical Remedial Action
activities at the Site prior to approval of the Remedial Action Work Plan.
d. Within fifteen (15) days after Settling Defendants
preliminarily conclude that construction of the Remedial Action is complete,
Settling Defendants shall notify EPA and the State and schedule a Pre-Final
Construction Completion inspection with
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representatives of Settling Defendants, EPA, and the State. No later than
fifteen (15) days after the Pre-Final Construction Completion Inspection, the
Settling Defendants shall submit a Pre-Final Construction Completion Report,
containing the results of the Pre-Final Construction Completion Inspection and
complying with the requirements of the SOW. In the report, a registered
professional engineer and the Settling Defendants' Project Coordinator
(designated pursuant to Section XII) shall state that the Remedial Action has
been constructed in accordance with the approved design and specifications. The
written report shall include as-built drawings signed and stamped by a
registered professional engineer. The report shall contain the following
statement, signed by a responsible corporate official of a Settling Defendant or
the Settling Defendants' Project Coordinator:
"To the best of my knowledge, after thorough investigation, I certify
that the information contained in or accompanying this submission is
true, accurate, and complete. I am aware there are significant
penalties for submitting false information, including the possibility
of fine and imprisonment for knowing violations."
After the Pre-Final Construction Completion Inspection and receipt and review of
the Pre-Final Construction Completion Report, EPA may approve, request
modifications, or disapprove the Report pursuant to Section XI (EPA Approval of
Plans and Other Submissions), after reasonable opportunity to review and comment
by the State. If EPA determines that construction of the Remedial Action or any
portion thereof has not been completed in
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accordance with this Consent Decree, EPA will notify Settling Defendants, in
writing, of the activities that must be undertaken by Settling Defendants
pursuant to this Consent Decree to complete construction of the Remedial Action.
EPA will set forth in the notice a schedule for performance of such activities
consistent with the Consent Decree and the SOW and for finalization of the
Construction Completion Report, or require the Settling Defendants to submit a
schedule to EPA for approval pursuant to Section XI (EPA Approval of Plans and
Other Submissions). 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 XIX (Dispute Resolution). If
requested by EPA, Settling Defendants shall schedule a Final Construction
Completion Inspection within fifteen (15) days of completion of all activities
identified by EPA to be completed. Settling Defendants shall submit a Final
Construction Completion Report in accordance with the SOW within ninety (90)
days of (i) completion of the last activity required to be performed by Settling
Defendant under this Paragraph 12.d., or (ii) the Final Construction Completion
Inspection, whichever is later. The Final Construction Completion Report shall
contain all of the registered engineer's statements and the responsible
corporate official statement required above in this Paragraph 12.d. EPA will
attempt to approve or disapprove the Final Construction
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Completion Report within ninety (90) days of its receipt of same; nonetheless, a
written approval from EPA is required.
e. Commencing upon the date of lodging of this Consent Decree,
Settling Defendants agree not to use any portion of the Site for purposes of
performing Remedial Action and for conducting O&M of the Remedial Action in
violation of any of the restrictions listed in Paragraph 29.a. Commencing upon
the date of lodging of this Consent Decree, Settling Defendants also agree not
to allow the use by any licensee, agent, contractor, subcontractor, or any
person under the control of Settling Defendants given an interest or right to
use, enter upon, occupy, or possess any portion of the Site for purposes of
performing Remedial Action and for conducting O&M of the Remedial Action in
violation of any of the restrictions listed in Paragraph 29.a. With respect to
the access restrictions contained in Paragraph 29.a., subparagraph v., and in
order to protect the Remedial Action, the public health, and the environment
during and after implementation of the Remedial Action, Settling Defendants
shall perform and implement the following as Work required by this Consent
Decree:
(i) Settling Defendants shall construct a six-foot woven
mesh fence, wall or similar device approved by EPA
around the TSCA landfill and the cover required by
the ROD. And, pursuant to the ROD, if requested by
Settling Defendants and approved by
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EPA, a building foundation or parking lot may be
substituted for the fence and the cover;
(ii) Settling Defendants shall construct a six-foot high
fence or similar structure around all areas of the
Site with surface concentrations between 1 mg/kg and
10 mg/kg PCBs. And, pursuant to the ROD, if requested
by Settling Defendants and approved by EPA, a cap,
building foundation, or parking lot may be
substituted for the fence.
13. The Settling Defendants shall continue to implement the
Remedial Action and O&M until the Performance Standards are achieved, and as
required under this Consent Decree. The Settling Defendants shall continue to
implement O&M as long as contaminants that exceed the cleanup levels set forth
in the ROD remain on-Site, and as required under this Consent Decree.
14. 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. A
modification may only be required pursuant to this Paragraph, however, to the
extent that it is consistent with the scope of the remedy selected in the ROD
and the Performance Standards.
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b. If Settling 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), Paragraph 66
(record review). The SOW and/or related Work Plans shall be modified in
accordance with final resolution of the dispute.
c. If Settling Defendants do not invoke dispute resolution or
the dispute resolution process results in an adverse decision for Settling
Defendants, Settling 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.
d. Nothing in this Paragraph shall be construed to limit EPA's
authority to select and seek performance of further response actions as
otherwise provided in this Consent Decree.
e. If at any time during performance of the Work, Settling
Defendants identify a need for additional data or work beyond that required by
this Consent Decree or in the approved Plans, a memorandum documenting the need
for such data or work shall be submitted to the EPA Project Coordinator. EPA, by
its Project Coordinator, will determine whether such additional data or work are
to be incorporated into subsequent reports and deliverables required in this
Consent Decree.
f. The following modifications or changes may be made by
written agreement of the Project Coordinators: (1) technical field modifications
to, and modifications of any schedules
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contained in, any Plan required under the SOW; and (2) any other change to the
Plans required in the SOW, not otherwise addressed in this Paragraph or in
Section XXXI (Modification) of this Consent Decree.
15. Settling Defendants acknowledge and agree that nothing in
this Consent Decree, the SOW, or the Remedial Design or Remedial Action Work
Plans constitutes a warranty or representation of any kind by Plaintiff that
compliance with the work requirements set forth in the SOW and the Work Plans
will achieve the Performance Standards.
16. In accordance with 40 C.F.R. Section 300.440, Settling
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 10 cubic yards.
a. The Settling Defendants shall include in the written
notification the following information, where available: (1) the name and
location of the facility to which the Waste Material is to be shipped; (2) the
type and quantity of the Waste Material to be shipped; (3) the expected schedule
for the shipment of the Waste Material; and (4) the method of transportation.
The Settling Defendants shall notify the state
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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.
b. The identity of the receiving facility and state will be
determined by the Settling Defendants following the award of the contract for
Remedial Action construction. The Settling 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.
VII. REMEDY REVIEW
17. Periodic Review. Settling Defendants shall conduct studies
and investigations requested by EPA as necessary to permit EPA to conduct
reviews of whether the Remedial Action is protective of human health and the
environment at least every five (5) years, as required by Section 121(c) of
CERCLA, 42 U.S.C. ss. 9621(c), and any applicable regulations.
18. EPA Selection of Further Response Actions. If EPA
determines, at any time, that the Remedial Action is not protective of human
health and the environment, EPA may select further response actions, including
Supplemental Institutional Controls, for the Site in accordance with the
requirements of CERCLA and the NCP.
19. Opportunity To Comment. Settling Defendants and
Owner Settling Defendant and, if required by Sections 113(k)(2)
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or 117 of CERCLA, 42 U.S.C. ss.ss. 9613(k)(2) or 9617, the public will be
provided with an opportunity to comment on any further response actions proposed
by EPA as a result of the review conducted pursuant to Section 121(c) of CERCLA,
42 U.S.C. ss. 9621(c), and to submit written comments for the record during the
comment period.
20. If EPA selects further response actions for the Site
related to releases of hazardous substances or the threat of a release of a
hazardous substance at or from the Site resulting from the Settling Defendants'
disposal of hazardous substances at the Site or performance of the Remedial
Action, or Federal PRPs' ownership of the Site or disposal of hazardous
substances at the Site, and the reopener conditions in Paragraph 81 or Paragraph
82 (United States' reservations of liability based on unknown conditions or new
information) are satisfied, Settling Defendants shall not contest that they are
among the persons liable for releases of hazardous substances at or from the
Site in any action brought by the United States to require Settling Defendants
to perform such further response actions. If EPA selects further response
actions that include Supplemental Institutional Controls that only Owner
Settling Defendant can perform as the party in possession and control of the
property, Owner Settling Defendant shall not contest liability in any action
brought by the United States to require Owner Settling Defendant to perform
Supplemental Institutional Controls.
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VIII. QUALITY ASSURANCE, SAMPLING, AND DATA ANALYSIS
21. Settling 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 for Environmental Data Operation" (EPA QA/R5);
"Preparing Perfect Project Plans" (EPA /600/9-88/087), and subsequent amendments
to such guidelines upon notification by EPA to Settling Defendants of such
amendment. Amended guidelines shall apply only to procedures conducted after
such notification. Prior to the commencement of any monitoring project under
this Consent Decree, Settling 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 referred to in writing or provided to Settling
Defendants by EPA. 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 Defendants shall ensure that EPA and
State personnel and their authorized representatives are allowed access at
reasonable times to all laboratories utilized by Settling Defendants in
implementing this Consent Decree. In addition, Settling Defendants shall ensure
that such laboratories shall analyze all samples submitted by EPA pursuant to
the QAPP for
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quality assurance monitoring. Settling 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 which 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. Settling
Defendants shall ensure that all laboratories they use for analysis of samples
taken pursuant to this Consent Decree participate in an EPA or EPAequivalent
QA/QC program. Settling Defendants shall ensure that all field methodologies
utilized in collecting samples for subsequent analysis pursuant to this Decree
will be conducted in accordance with the procedures set forth in the QAPP
approved by EPA.
22. Upon request, the Settling Defendants shall allow split or
duplicate samples to be taken by EPA or its authorized representatives. Settling
Defendants shall notify EPA and the State not less than 28 days in advance of
any sample collection activity unless shorter notice is agreed to by EPA. In
addition, EPA shall have the right to take any additional samples that EPA deems
necessary. Upon request, EPA shall allow the Settling Defendants to take split
or duplicate samples of any samples it takes as part of the Plaintiff's
oversight of the Settling Defendants' implementation of the Work.
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23. Settling Defendants shall submit to EPA two (2) copies of
the results of all sampling and/or tests or other data obtained or generated by
or on behalf of Settling Defendants with respect to the Site and/or the
implementation of this Consent Decree unless EPA agrees otherwise.
24. 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.
IX. ACCESS AND INSTITUTIONAL CONTROLS
25. In accordance with Section VII of the Partial Consent
Decree, Owner Settling Defendant shall provide access to the United States and
its representatives, the State and its representatives, and to Settling
Defendants and their agents and representatives, to the Site and to any such
other property under its control, that is necessary for the implementation of
the ROD and this Consent Decree.
26. 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 the Owner Settling Defendant, Settling
Defendants shall use best efforts to secure from such persons access for
Settling Defendants, as well as for the United States and the State and their
representatives, including, but not limited to, their
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contractors, as necessary to effectuate this Consent Decree. For purposes of
this Paragraph "best efforts" includes the payment of reasonable sums of money
in consideration of access. If any access required to complete the Work is not
obtained within forty-five (45) days of the date of lodging of this Consent
Decree, or within forty-five (45) days of the date EPA notifies the Settling
Defendants, in writing, that additional access beyond that previously secured is
necessary, Settling Defendants shall promptly notify the United States, in
writing, and shall include in that notification a summary of the steps Settling
Defendants have taken to attempt to obtain access. The United States may, as it
deems appropriate, assist Settling Defendants in obtaining access. Settling
Defendants shall reimburse the United States, in accordance with the procedures
in Section XVI (Reimbursement of Response Costs), for all costs incurred by the
United States in obtaining access.
27. 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.
28. Notice to Successors-in-Title a. Within fifteen (15) days
of the entry of this
Consent Decree, Owner Settling Defendant shall execute and file
with the State Recorder's Office, Anchorage District, State of
Alaska, a Declaration of Restrictive Covenants and Notice of
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Remedial Action in the form attached to this Consent Decree as Appendix E.
b. At least 30 days prior to the conveyance of any interest in
property located within the Site including, but not limited to, fee interests,
leasehold interests, and mortgage interests, the Owner Settling Defendant shall
give written notice of this Consent Decree, the Declaration of Restrictive
Covenants and Notice of Remedial Action, and any additional covenants, terms,
conditions and restrictions, if applicable, that have been filed with respect to
the property pursuant to Section IX (Access and Institutional Controls) to the
grantee and written notice to EPA and ADEC of the proposed conveyance, including
the name and address of the grantee and the date on which the Declaration of
Restrictive Covenants and Notice of Remedial Action was given to the grantee. In
the event of any such conveyance, Owner Settling Defendant shall remain
obligated to: (1) secure access and implement Institutional Controls under this
Consent Decree to the extent the Site is in the possession or control of ARRC;
and (2) undertake to enforce the access and use restrictions contained in this
Consent Decree when such restrictions are not being complied with. In no event
shall the conveyance release or otherwise affect the liability of the Settling
Defendants to comply with all provisions of this Consent Decree. If the United
States approves in writing, the grantee may perform some or all of the Work
under this Consent Decree.
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29.a. Commencing upon the date of lodging of this Consent
Decree, the Owner Settling Defendant agrees not to use, occupy or possess the
property, or some portion thereof, described in the legal description attached
as Appendix C, that is owned or controlled by the Owner Settling Defendant or
for which access and land use restrictions are required to protect the remedial
action, the public health, or the environment during or after implementation of
the remedial action, in violation of any of the restrictions provided in this
Paragraph. Commencing upon the date of lodging of this Consent Decree, the Owner
Settling Defendant also agrees not to allow the use by any licensee, lessee, or
any person given an interest to use, occupy, or possess the property, or some
portion thereof, described in the legal description attached as Appendix C that
is owned or controlled by the Owner Settling Defendant or, for which access and
land use restrictions are required to protect the remedial action, the public
health, or the environment during or after implementation of the remedial
action, in violation of any of the following restrictions:
(i) no residential use or activity shall be permitted on
the property, and no commercial use or activity shall
be permitted if it involves potential chronic
exposures of children to soil (e.g., use of the
property for a day care center);
(ii) no use or activity on the property shall be
permitted that will disturb any of the remedial
measures that have been implemented pursuant to
this Consent Decree or that could potentially
impair the integrity of the landfill in which
contaminated soils and solidified soils have been
disposed; and
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(iii) except as necessary to perform the Remedial
Action, no use or activity on the property shall
disturb the surface or subsurface of the land by
filling, drilling, excavation, or removal of
topsoil, rock or minerals which could move soil
containing greater than 1,000 mg/kg lead or 10
mg/kg polychlorinated biphenyl (PCB) to the
surface or within the top foot of soil where
chronic long-term worker exposures could occur;
(iv) groundwater underlying the property shall not be
consumed or used in any way except for the limited
purpose of monitoring ground water contamination
levels. Ground water wells and facilities installed
for such purpose shall only be installed pursuant to
a plan approved by EPA;
(v) access to the TSCA landfill by the general public
shall be prohibited, and access by long- or short-
term workers shall be restricted in compliance
with 40 C.F.R.ss. 761.75(b)(9)(i), through
maintenance of a six-foot woven mesh fence, wall,
or similar device. If the solidified soil mass is
capped or designed and used as a building
foundation or parking lot, EPA may waive this
requirement upon a written request which shall
include long-term maintenance of such cap,
building foundation or parking lot in accordance
with the approved O & M Plan. Unrestricted
access by the general public to those areas of the
Site where surface contamination of 1 mg/kg PCB or
greater remains after all excavation, treatment,
and disposal is complete shall be prohibited
through maintenance of a six-foot fence, cap,
parking lot or similar structure approved by EPA;
and
(vi) during remedial design and construction of the
remedial action, the public, including long and
short-term workers, other than authorized
representatives of EPA, the State, and Settling
Defendants and Owner Settling Defendant, shall
only have access to areas in or around the Site
that are not affected by soil contamination.
b. If Owner Settling Defendant, any transferee of an interest
in the Site or any Settling Defendant seek to undertake any restricted use or
activity on the property, such use or
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activity may be proposed to EPA in accordance with Section XIX (EPA Approval of
Plan and Other Submissions) and EPA's disapproval shall be subject to dispute
resolution under Paragraph 66 of Section XIX (Dispute Resolution).
c. Owner Settling Defendant agrees that upon transfer of fee
simple title from the United States, it will accept such fee simple title
subject to the restrictions listed in subparagraph 29.a. above if the United
States places such restrictions on the property as a part of such transfer.
d. Owner Settling Defendant agrees that, in order to perform
and implement the remedial action selected in the ROD, it is appropriate and
necessary to impose access obligations contained in Paragraph 25 of this Consent
Decree, and the land and water use restrictions and access restrictions listed
in subparagraph 29.a. above, on the real property described in Appendix C.
e. Owner Settling Defendant, in any instrument conveying an
interest in the Site shall provide an access right to the United States, the
State, Settling Defendants, and their representatives, and shall place the land
and water use restrictions and access restrictions listed in subparagraph 29.a.
above on the Site, which shall run with the land and be binding upon successors
in interest. Owner Settling Defendant agrees to condition the conveyance of any
interest in property located within the Site, including, but not limited to, fee
interests, leasehold interests, and mortgage interests, upon the express
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written agreement of the person or persons acquiring the interest that such
person or persons will take such interest subject to the access obligations
contained in Paragraph 25, and land and water use restrictions and access
restrictions contained in this Consent Decree. In addition, prior to or upon a
transfer of any interest in the Site Owner, Settling Defendant shall comply with
the following requirements:
(i) impose the access obligations identified in
Paragraph 25 and the land and water use
restrictions and access restrictions identified in
Paragraph 29.a. on such property by including in
the instrument transferring such property the
Reservation of Access Easement and Restrictions on
Use set forth in Appendix F. Within seven (7) days
of the execution of the instrument conveying any
title interest in Property described in Appendix
C, the Owner Settling Defendant shall ensure said
instrument is in recordable form and record such
instrument with the State Recorder's Office,
Anchorage District, State of Alaska, or other
appropriate office where land ownership and
transfer records are maintained for the subject
property(ies), or
(ii) upon the transfer of any leasehold interest in
real property described in Appendix C, Owner
Settling Defendant shall impose the access
obligations identified in Paragraph 25 and the
land and water use restrictions and access
restrictions identified in Paragraph 29.a. by
including in the lease transferring such a lease
interest the Lease Prohibition set forth in
Appendix G. Within 7 days of execution of such
lease, the Owner Settling Defendant shall ensure
the lease is in recordable form and record such
lease in the State Recorder's Office, Anchorage
District, State of Alaska, or other appropriate
office where land ownership and transfer records
are maintained for the subject property(ies).
(iii) Prior to a transfer of any interest in the Site by a
conveyance instrument containing the language in Appendices F
or G required in Subparagraphs e. (i) and (ii) above, Owner
Settling Defendant shall
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review the language for consistency with then
existing State or local law.
30. Within sixty (60) days of the Effective Date of this
Consent Decree, Owner Settling Defendant shall provide a copy of the executed
and recorded Declaration of Restriction Covenant and Notice of Remedial Action
(Appendix E) to the following entities:
State of Alaska
Alaska Department of Environmental Conservation
Alaska Department of Fish & Game
Municipality of Anchorage ("MOA")
MOA Department of Community Planning and Development
MOA Department of Public Works
MOA Department of Parks & Recreation
Utilities
Anchorage Water & Wastewater Utility
Anchorage Municipal Power & Light
Chugach Electric Association
Enstar Natural Gas
AT&T Alascom
ATU Telecommunications
Prime Cable of Alaska
As long as Owner Settling Defendant is in possession and control of the Site,
Owner Settling Defendant shall send a copy of the recorded Declaration to other
agencies, departments or entities in the future that it becomes aware of could
affect land or water use at the Site or remedial activities taken thereon. Owner
Settling Defendant shall send EPA copies of all notices required by this
Paragraph.
X. REPORTING REQUIREMENTS
31. In addition to any other requirement of this Consent
Decree, Settling Defendants shall submit to EPA and the State two (2) copies of
written monthly progress reports that:
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(a) describe the actions which have been taken toward achieving compliance with
this Consent Decree during the previous month; (b) include a summary of all
results of sampling and tests and all other data received or generated by
Settling Defendants or their contractors or agents in the previous month; (c)
identify all Work Plans, plans, and other deliverables required by this Consent
Decree completed and submitted during the previous month; (d) describe all
actions, including, but not limited to, data collection and implementation of
Work Plans, which are scheduled for the next month and provide other information
relating to the progress of construction, such as critical path diagrams, Gantt
charts or Pert charts; (e) include information regarding percentage of
completion, unresolved delays encountered or anticipated that may affect the
future schedule for implementation of the Work, and a description of efforts
made to mitigate those delays or anticipated delays; (f) include any
modifications to the Work Plans or other schedules that Settling Defendants have
proposed to EPA or that have been approved by EPA; and (g) describe all
activities undertaken in support of the Community Relations Plan during the
previous month and those to be undertaken in the next month. Settling Defendants
shall submit these progress reports to EPA and the State by the fifteenth (15th)
day of every month following the lodging of this Consent Decree until EPA
notifies the Settling Defendants pursuant to Paragraph 50.b. of Section XIV
(Certification of Completion). If requested by EPA, Settling Defendants shall
also
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provide briefings for EPA and the State to discuss the progress
of the Work.
32. The 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, data collection and implementation of
Work Plans, no later, when possible, than seven (7) days prior to the
performance of the activity.
33. Upon the occurrence of any event during performance of the
Work that Settling Defendants are required to report pursuant to Section 103 of
CERCLA, 42 U.S.C. ss. 9603, or Section 304 of the Emergency Planning and
Community Right-to-Know Act (EPCRA), 42 U.S.C. ss. 11004, Settling Defendants
shall within 24 hours of learning of the onset of such event orally notify the
EPA Project Coordinator or the Alternate EPA Project Coordinator (in the event
of the unavailability of the EPA Project Coordinator), or, in the event that
neither the EPA Project Coordinator or Alternate EPA Project Coordinator is
available, the Emergency Response Section, Region 10, United States
Environmental Protection Agency. These reporting requirements are in addition to
the reporting required by CERCLA Section 103 or EPCRA Section 304.
34. Within twenty (20) days of learning of the onset of such
an event, Settling Defendants shall furnish to Plaintiff a written report,
signed by the Settling Defendants' Project Coordinator, setting forth the events
that occurred and the
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measures taken, and to be taken, in response thereto. Within thirty (30) days of
the conclusion of such an event, Settling Defendants shall submit a report
setting forth all actions taken in response thereto.
35. Settling Defendants shall submit two (2) copies of all
plans, reports, and data required by the SOW, 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. Settling Defendants shall simultaneously
submit one copy of all such plans, reports, and data to the State.
36. All reports and other documents submitted by Settling
Defendants to EPA (other than the monthly progress reports referred to above)
which purport to document Settling Defendants' compliance with the terms of this
Consent Decree shall be signed by an authorized representative of the Settling
Defendants.
XI. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS
37. After review of any plan, report or other item that is
required to be submitted for approval pursuant to this Consent Decree, EPA,
after reasonable opportunity for review and comment by the State, shall in
writing: (a) approve the submission, in whole or in part; (b) approve the
submission upon specified conditions; (c) modify the submission to cure the
deficiencies; (d) disapprove the submission, in whole or in part, directing that
the Settling Defendants modify the submission; or
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(e) any combination of the above. However, EPA shall not modify a submission
without first providing Settling Defendants at least one written notice of
deficiency and an opportunity to cure within thirty (30) days, except where to
do so would cause serious disruption to the Work or where previous submission(s)
have been disapproved due to material defects and the deficiencies in the
submission under consideration indicate a bad faith lack of effort to submit an
acceptable deliverable.
38. In the event of approval, approval upon conditions, or
modification by EPA, pursuant to Paragraph 37(a), (b), or (c), Settling
Defendants 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 XIX (Dispute Resolution)
with respect to the modifications or conditions made by EPA. In the event that
EPA modifies the submission to cure the deficiencies pursuant to Paragraph 37(c)
because the submission has a material defect, EPA retains its right to seek
stipulated penalties, as provided in Section XX (Stipulated Penalties).
39.a. Upon receipt of a notice of disapproval pursuant to
Paragraph 37(d), Settling Defendants shall, within thirty (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. Any stipulated penalties
applicable to the submission, as provided in Section XX, shall accrue during the
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30-day or otherwise specified period, but shall not be payable unless the
resubmission is disapproved or modified due to a material defect as provided in
Paragraphs 40 and 41.
b. Notwithstanding the receipt of a notice of disapproval
pursuant to Paragraph 37(d), Settling Defendants shall proceed, at the direction
of EPA, to take any action required by any non-deficient portion of the
submission. Implementation of any non-deficient portion of a submission shall
not relieve Settling Defendants of any liability for stipulated penalties, if
applicable, under Section XX (Stipulated Penalties).
40. In the event that a resubmitted plan, report, or other
item, or portion thereof, is disapproved by EPA, EPA may again require the
Settling Defendants to correct the deficiencies, in accordance with the
preceding Paragraphs. EPA also retains the right to modify or develop the plan,
report or other item. Settling Defendants shall implement any such plan, report,
or item as modified or developed by EPA, subject only to their right to invoke
the procedures set forth in Section XIX (Dispute Resolution).
41. If upon resubmission, a plan, report, or item is
disapproved or modified by EPA due to a material defect, Settling Defendants
shall be deemed to have failed to submit such plan, report, or item timely and
adequately unless the Settling Defendants invoke the dispute resolution
procedures set forth in Section XIX (Dispute Resolution) and EPA's action is
overturned
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pursuant to that Section. The provisions of Section XIX (Dispute Resolution) and
Section XX (Stipulated Penalties) shall govern the implementation of the Work
and accrual and payment of any stipulated penalties during Dispute Resolution.
If EPA's disapproval or modification is upheld, stipulated penalties, if
applicable, shall accrue for such violation from the date on which the initial
submission was originally required, as provided in Section XX.
42. All plans, reports, and other items required to be
submitted to EPA under this Consent Decree shall, upon approval or modification
by EPA, be enforceable under this Consent Decree. In the event EPA approves or
modifies a portion of a plan, report, or other item required to be submitted to
EPA under this Consent Decree, the approved or modified portion shall be
enforceable under this Consent Decree.
XII. PROJECT COORDINATORS
43. Within twenty (20) days of lodging this Consent Decree,
Settling Defendants, Owner Settling Defendant, EPA, and the State will notify
each other, in writing, of the name, address and telephone number of their
respective designated Project Coordinators and Alternate Project Coordinators.
If a Project Coordinator or Alternate Project Coordinator initially designated
is changed, the identity of the successor will be given to the other Parties and
the State at least five (5) working days before the changes occur, unless
impracticable, but
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in no event later than the actual day the change is made. The Settling
Defendants' Project Coordinator shall be subject to disapproval by EPA and shall
have the technical expertise sufficient to adequately oversee all aspects of the
Work. The Settling Defendants' Project Coordinator shall not be 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.
44. Plaintiff may designate other representatives, including,
but not limited to, EPA employees, and federal contractors and consultants, to
observe and monitor the progress of any activity undertaken pursuant to this
Consent Decree. EPA's Project Coordinator and Alternate Project Coordinator
shall have the authority lawfully vested in a Remedial Project Manager (RPM) and
an On-Scene Coordinator (OSC) by the NCP, 40 C.F.R. Part 300. In addition, EPA's
Project Coordinator or Alternate Project Coordinator shall have authority,
consistent with the NCP, to halt any Work required by this Consent Decree and to
take any necessary response action when s/he determines that conditions at the
Site constitute an emergency situation or may present an immediate threat to
public health or welfare or the environment due to release or threatened release
of Waste Material.
[Paragraph 45. Intentionally Left Blank]
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XIII. ASSURANCE OF ABILITY TO COMPLETE WORK
46. Within thirty (30) days of entry of this Consent Decree,
Settling Defendants shall establish and maintain financial security in the
amount of $3,234,000 (38.5% of the high cost estimate for
Solidification/Stabilization in the Feasibility Study plus a 50% cost overrun
contingency) in one or more of the following forms:
(a) A surety bond guaranteeing performance of the Work; (b)
One or more irrevocable letters of credit equalling
the total estimated cost of the Work;
(c) A trust fund;
(d) A guarantee to perform the Work by one or more parent
corporations or subsidiaries, or by one or more unrelated corporations that have
a substantial business relationship with at least one of the Settling
Defendants; or
(e) A demonstration that one or more of the Settling
Defendants satisfy the requirements of 40 C.F.R. Section
264.143(f).
47. If the Settling Defendants seek to demonstrate the ability
to complete the Work through a guarantee by a third party pursuant to Paragraph
46(d) of this Consent Decree, Settling Defendants shall demonstrate that the
guarantor satisfies the requirements of 40 C.F.R. Section 264.143(f). If
Settling Defendants seek to demonstrate their ability to complete the Work by
means of the financial test or the corporate guarantee pursuant to Paragraph
46(d) or (e), they shall resubmit sworn
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statements conveying the information required by 40 C.F.R. Section 264.143(f)
annually, on the anniversary of the Effective Date of this Consent Decree. In
the event that EPA determines at any time that the financial assurances provided
pursuant to this Section are inadequate, Settling Defendants shall, within
thirty (30) days of receipt of notice of EPA's determination, obtain and present
to EPA for approval one of the other forms of financial assurance listed in
Paragraph 46 of this Consent Decree. Settling Defendants' inability to
demonstrate financial ability to complete the Work shall not excuse performance
of any activities required under this Consent Decree.
48. If Settling Defendants can show that the estimated cost to
complete the remaining Work has diminished below the amount set forth in
Paragraph 46 above after entry of this Consent Decree, Settling Defendants may,
on any anniversary date of entry of this Consent Decree, or at any other time
agreed to by the Settling Defendants and EPA, reduce the amount of the financial
security provided under this Section to the estimated cost of the remaining Work
to be performed. Settling Defendants shall submit a proposal for such reduction
to EPA, in accordance with the requirements of this Section, and may reduce the
amount of the security upon approval by EPA. In the event of a dispute, Settling
Defendants may reduce the amount of the security in accordance with the final
administrative or judicial decision resolving the dispute pursuant to Section
XIX (Dispute Resolution).
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49. Settling Defendants may change the form of financial
assurance provided under this Section at any time, upon notice to and approval
by EPA, provided that the new form of assurance meets the requirements of this
Section. In the event of a dispute, Settling Defendants may change the form of
the financial assurance only in accordance with the final administrative or
judicial decision resolving the dispute.
XIV. CERTIFICATION OF COMPLETION
50. Completion of the Remedial Action
a. Notice. Upon Settling Defendants' preliminary determination
that the Remedial Action is operational and functional and that Performance
Standards have been met, but no sooner than two (2) years following the Final
Construction Completion Inspection, Settling Defendants shall provide notice to
EPA and the State that Remedial Action is complete.
b. Draft Completion of Remedial Action Report. Within thirty
(30) days from the notice required in subparagraph a. above, Settling Defendants
shall submit a Draft Completion of Remedial Action Report. In the report, a
registered professional engineer and the Settling Defendants' project
Coordinator shall state that the Remedial Action has been constructed in
accordance with the approved design and specifications and is operational and
functional. The report shall reference all the data and supporting documentation
on which Settling Defendants rely to determine that all Performance Standards
have been met and the RA
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has been completed in accordance with the ROD, SOW, and this Consent Decree. The
written report shall be signed and stamped by a registered professional engineer
and reference as-built drawings from the Final Construction Completion Report.
The report shall contain the following statement, signed by a responsible
corporate official of a Settling Defendant or the Settling Defendants' Project
Coordinator:
"To the best of my knowledge, after thorough investigation, I certify
that the information contained in or accompanying this submission is
true, accurate, and complete. I am aware there are significant
penalties for submitting false information, including the possibility
of fine and imprisonment for knowing violations."
c. Final Completion of Remedial Action Report. Within thirty
(30) days of receipt of EPA comments on the Draft Completion of Remedial Action
Report, Settling Defendants shall submit a Final Completion of Remedial Action
Report. In the report, a registered professional engineer and the Settling
Defendants' Project Coordinator shall state the RA has been completed in full
satisfaction of the requirements of the Consent Decree. The written report shall
be signed and stamped by a registered professional engineer and reference
as-built drawings from the Final Construction Completion Report. The report
shall contain the following statement, signed by a responsible corporate
official of a Settling Defendant or the Settling Defendants' Project
Coordinator:
"To the best of my knowledge, after thorough investigation, I certify
that the information contained in or accompanying this submission is
true, accurate,
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and complete. I am aware there are significant
penalties for submitting false information, including
the possibility of fine and imprisonment for knowing
violations."
d. Certification of Completion. If EPA concludes, based on the
Final Completion of Remedial Action Report requesting Certification of
Completion and after a reasonable opportunity for review and comment by the
State, that the Remedial Action has been performed in accordance with this
Consent Decree and that the Performance Standards have been achieved, EPA will
so certify, in writing, to Settling Defendants. EPA will attempt to certify
completion within ninety (90) days of receipt of the Final Completion of
Remedial Action Report, nonetheless, a written certification from EPA is
necessary for Remedial Action to be complete. This certification shall
constitute the Certification of Completion of the Remedial Action for purposes
of this Consent Decree, including, but not limited to, Section XXI (Covenants
Not to Sue by Plaintiff). Certification of Completion of the Remedial Action
shall not affect Settling Defendants' and Owner Settling Defendant's obligations
under this Consent Decree that extend beyond completion of the Remedial Action.
XV. EMERGENCY RESPONSE
51. In the event of any action or occurrence during the
performance of the Work which causes or threatens a release of Waste Material
from the Site that constitutes an emergency situation or may present an
immediate threat to public health or
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welfare or the environment, Settling Defendants shall, subject to Paragraph 52,
immediately take all appropriate action to prevent, abate, or minimize such
release or threat of release, and shall immediately notify the EPA's Project
Coordinator, or, if the Project Coordinator is unavailable, EPA's Alternate
Project Coordinator. If neither of these persons is available, the Settling
Defendants shall notify the EPA Emergency Response and Cleanup Unit 1, Region
10. Settling Defendants shall take such actions in consultation with EPA's
Project Coordinator or other available authorized EPA officer and in accordance
with all applicable provisions of the Health and Safety Plans, the Contingency
Plans, and any other applicable plans or documents developed pursuant to the
SOW. In the event that Settling Defendants fail to take appropriate response
actions as required by this Section, and EPA takes such actions instead,
Settling Defendants shall, pursuant to Section XVI (Reimbursement of Response
Costs), reimburse EPA for all costs incurred in connection with response actions
not inconsistent with the NCP.
52. Nothing in the preceding Paragraph or in this Consent
Decree shall be deemed to limit any authority of the United States: a) to take
all appropriate action to protect human health and the environment or to
prevent, abate, respond to, or minimize an actual or threatened release of Waste
Material on, at, or from the Site; or b) to direct or order such action, or seek
an order from the Court, to protect human health and the environment or to
prevent, abate, respond to, or minimize an
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actual or threatened release of Waste Material on, at, or from the Site, subject
to Section XXI (Covenants Not to Sue by Plaintiff).
XVI. REIMBURSEMENT OF RESPONSE COSTS
53. In accordance with this Section XVI, Settling Defendants
shall reimburse the EPA Hazardous Substance Superfund for all Future Response
Costs as defined in this Consent Decree for response actions not inconsistent
with the NCP. The United States will send Settling Defendants a bill requiring
payment that includes a Superfund Cost Organization and Recovery Enhancement
System (SCORES) Report and a DOJ Cost Summary on a periodic basis. Except as
otherwise provided in Paragraph 54, Settling Defendants shall pay no less than
38.5% of each bill within sixty (60) days of Settling Defendants' receipt of
each bill requiring payment and shall pay the Federal PRPs' share of 61.5% (as
set forth in the Partial Consent Decree) of each bill within ten (10) days of
receipt of payment from the Federal PRPs if the federal payment is not received
before or during the 60- day payment period. The Settling Defendants shall make
all payments required by this Paragraph in the form of a certified or cashier's
check or checks made payable to "EPA Hazardous Substance Superfund" and
referencing the EPA Region and Site/Spill ID # 102P; the DOJ case number
90-11-3-810, and the name and address of the party making payment. The Settling
Defendants shall send the check(s) to:
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Mellon Bank
EPA-Region 10
Attn: Superfund Accounting
P.O. Box 360903M
Pittsburgh, PA 15251
and shall send copies of the check(s) to the United States as specified in
Section XXVI (Notices and Submissions) and to Joseph Penwell, Finance Unit,
Office of Management Programs, Mail Stop OMP-146, 1200 Sixth Avenue, Seattle,
Washington, 98101. In the alternative, Settling Defendants shall make payments
required by this Paragraph to the EPA Hazardous Substance Superfund by FedWire
Electronic Funds Transfer. Wire transfer instructions will be provided by EPA
upon request.
54.a. Settling Defendants may contest payment of any Future
Response Costs under Paragraph 53 if they determine that the United States has
made an accounting error or if they allege that a cost item that is included
represents response actions that are inconsistent with the NCP or costs outside
the scope of this Consent Decree. Such objection shall be made, in writing,
within sixty (60) days of receipt of the bill and must be sent to the United
States pursuant to Section XXVI (Notices and Submissions). Any such objection
shall specifically identify the contested Future Response Costs and the basis
for objection. In the event of an objection, the Settling Defendants shall
within the sixty (60) day period pay all uncontested Future Response Costs to
the United States in the manner described in Paragraph 53. Simultaneously, the
Settling Defendants shall establish an
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interest-bearing bank account in a federally-insured bank duly chartered in the
State of Alaska and remit to that bank account funds equivalent to the amount of
the contested Future Response Costs. The Settling Defendants shall send to the
United States, as provided in Section XXVI (Notices and Submissions), a copy of
the letter and the check transmitting the uncontested Future Response Costs to
the bank, and a copy of the correspondence that establishes and funds the bank
account, including, but not limited to, information containing the identity of
the bank and bank account under which the account is established as well as a
bank statement showing the initial balance of the bank account. Simultaneously
with establishment of the bank account, the Settling Defendants shall initiate
the Dispute Resolution procedures in Section XIX (Dispute Resolution). If the
United States prevails in the dispute, within five (5) days of the resolution of
the dispute, the Settling Defendants shall pay the sums due (with accrued
Interest) to the United States in the manner described in Paragraph 53. If the
Settling Defendants prevail concerning any aspect of the contested costs, the
Settling Defendants shall pay 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 53; Settling Defendants shall be disbursed any balance of
the bank account. The dispute resolution procedures set forth in this Paragraph
in conjunction with the procedures set forth in Section XIX (Dispute Resolution)
shall be the exclusive mechanisms for
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resolving disputes regarding the Settling Defendants' obligation to reimburse
the United States for its Future Response Costs.
b. Within thirty (30) days of receipt of each bill, Settling
Defendants may request the following categories of supporting documentation:
employee time sheets for payroll costs; receipts for travel costs; contractor
invoices and supporting documentation for contractor charges and expenses; and
computation of EPA indirect costs. Some of the requested information may be
redacted or issued only after Settling Defendants agree to protective provisions
if the information is subject to a claim of privilege or is confidential
business information. EPA shall provide the requested supporting documentation
within thirty (30) days of receipt of the written request.
55. In the event that the payments required by Paragraph 53
are not made within sixty (60) days of the Settling Defendants' receipt of the
bill, Settling Defendants shall pay Interest on the 38.5% share of the unpaid
balance. The Interest on Future Response Costs shall begin to accrue on the date
of the bill. The Interest shall accrue through the date of the Settling
Defendants' payment. If Settling Defendants do not receive the Federal PRPs'
share of Future Response Costs until after the 60- day payment period, and if
Settling Defendants receive Interest from the Federal PRPs on their share of any
billed Future Response Costs, Settling Defendants shall pay the Interest
received from the Federal PRPs to the United States at the same
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time it pays the Federal PRPs' share of Future Response Costs as provided above.
Payments of Interest made under this Paragraph shall be in addition to such
other remedies or sanctions available to Plaintiff by virtue of Settling
Defendants' failure to make timely payments under this Section. The Settling
Defendants shall make all payments required by this Paragraph in the manner
described in Paragraph 53.
XVII. INDEMNIFICATION AND INSURANCE
56.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 authorized representatives under Section 104(e) of CERCLA,
42 U.S.C. ss. 9604(e). Settling Defendants and/or Owner Settling Defendant, as
appropriate, shall indemnify, save and hold harmless the United States
(excluding, for this purpose, the Federal PRPs) and its officials, agents,
employees, contractors, subcontractors, or representatives for or from any and
all claims or causes of action arising from, or on account of, negligent or
other wrongful acts or omissions of Settling Defendants and/or Owner Settling
Defendant, their officers, directors, employees, agents, contractors,
subcontractors, and any persons acting on their behalf or under their control,
in carrying out activities pursuant to this Consent Decree, including, but not
limited to, any claims arising from any designation of Settling Defendants or
Owner Settling Defendant as EPA's authorized representatives
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under Section 104(e) of CERCLA, 42 U.S.C. ss. 9604(e). Further, the Settling
Defendants and/or Owner Settling Defendant, as appropriate, agree to pay the
United States (excluding, for this purpose, the Federal PRPs) all costs it
incurs including, but not limited to, attorneys' fees and other expenses of
litigation and settlement arising from, or on account of, claims made against
the United States based on negligent or other wrongful acts or omissions of
Settling Defendants and/or Owner Settling Defendant, their officers, directors,
employees, agents, contractors, subcontractors, and any persons acting on their
behalf or under their control, in carrying out activities pursuant to this
Consent Decree. The United States shall not be held out as a party to any
contract entered into, by or on behalf of Settling Defendants or Owner Settling
Defendant in carrying out activities pursuant to this Consent Decree. Neither
the Settling Defendants, Owner Settling Defendant, nor any such contractor shall
be considered an agent of the United States. Notwithstanding anything herein to
the contrary, Settling Defendants shall not be liable to indemnify, save and
hold harmless or pay the United States' costs under this Paragraph for the
negligent or wrongful acts or omissions of Owner Settling Defendant or the Owner
Settling Defendant's officers, directors, employees, agents, contractors,
subcontractors, or other persons acting on it's behalf or under it's control.
Likewise, Owner Settling Defendant shall not be liable to indemnify, save and
hold harmless or pay the United States' costs under this
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Paragraph for the negligent or wrongful acts or omissions of Settling Defendants
or Settling Defendants' officers, directors, employees, agents, contractors,
subcontractors, or other persons acting on their behalf or under their control.
b. The United States shall give Settling Defendants and/or
Owner Settling Defendant, as appropriate, notice of any claim for which the
United States plans to seek indemnification pursuant to Paragraph 56.a., and
shall consult with Settling Defendants and/or Owner Settling Defendant, as
appropriate, prior to settling such claim.
57. Settling Defendants and Owner Settling Defendant 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, Owner Settling Defendant, and any person for performance of Work or
Institutional Controls implemented by Owner Settling Defendant on or relating to
the Site, including, but not limited to, claims on account of construction
delays. In addition, Settling Defendants and Owner Settling Defendant shall
indemnify and hold harmless the United States with respect to any and all claims
for damages or reimbursement arising from or on account of any contract,
agreement, or arrangement between any one or more of Settling Defendants, Owner
Settling Defendant, and any person for performance of Work or Institutional
Controls implemented by Owner Settling Defendant on or relating to the
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Site, including, but not limited to, claims on account of construction delays.
58. No later than fifteen (15) days before commencing any
on-Site Work, Settling Defendants or their contractor or subcontractor, as set
forth below, shall secure, and shall maintain until the first anniversary of
EPA's Certification of Completion of the Remedial Action pursuant to Paragraph
50 of Section XIV (Certification of Completion)] comprehensive general liability
insurance with limits of $3 million, combined single limit (including excess
umbrella coverage), and automobile liability insurance with limits of $1
million, combined single limit, naming the United States as an additional
insured (including excess umbrella coverage). In addition, for the duration of
this Consent Decree, Settling Defendants shall satisfy, or shall ensure that
their contractors or subcontractors satisfy, all applicable laws and regulations
regarding the provision of workers' compensation insurance for all persons
performing the Work on behalf of Settling Defendants in furtherance of this
Consent Decree. Prior to commencement of the Work under this Consent Decree,
Settling Defendants shall provide to EPA certificates of such insurance and a
copy of each insurance policy. Settling Defendants shall resubmit such
certificates and copies of policies each year on the anniversary of the
Effective Date of this Consent Decree. If Settling Defendants demonstrate by
evidence satisfactory to EPA that any contractor or subcontractor maintains
insurance equivalent to
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that described above, or insurance covering the same risks but in a lesser
amount, then, with respect to that contractor or subcontractor, Settling
Defendants need provide only that portion of the insurance described above which
is not maintained by the contractor or subcontractor.
XVIII. FORCE MAJEURE
59. "Force Majeure", for purposes of this Consent Decree, is
defined as any event arising from causes beyond the control of the Settling
Defendants or Owner Settling Defendant, of any entity controlled by Settling
Defendants or Owner Settling Defendant, or their contractors, that delays or
prevents the performance of any obligation under this Consent Decree despite
Settling Defendants' or Owner Settling Defendant's best efforts to fulfill the
obligation. The requirement that the Settling Defendants and Owner Settling
Defendant exercise "best efforts to fulfill the obligation" includes using best
efforts to anticipate any potential Force Majeure event and best efforts to
address the effects of any potential Force Majeure event (1) as it is occurring,
and (2) following the potential Force Majeure event, such that the delay is
minimized to the greatest extent possible. "Force Majeure" does not include
financial inability to complete the Work or a failure to attain the Performance
Standards.
60. If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Decree, whether or not caused
by a Force Majeure event, the Settling
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Defendants or Owner Settling Defendant shall notify orally EPA's Project
Coordinator or, in his or her absence, EPA's Alternate Project Coordinator or,
in the event both of EPA's designated representatives are unavailable, the
Director of the Office of Environmental Cleanup, EPA Region 10, within five (5)
days of when Settling Defendants or Owner Settling Defendant first knew that the
event might cause a delay. Within five (5) days thereafter, Settling Defendants
or Owner Settling Defendant shall provide, in writing, to EPA an explanation and
description of the reasons for the delay; the anticipated duration of the delay;
all actions taken or to be taken to prevent or minimize the delay; a schedule
for implementation of any measures to be taken to prevent or mitigate the delay
or the effect of the delay; the Settling 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 Settling Defendants or Owner
Settling Defendant, such event may cause or contribute to an endangerment to
public health, welfare or the environment. The Settling Defendants or Owner
Settling Defendant shall include with any notice all available documentation
supporting their claim that the delay was attributable to a Force Majeure event.
Failure to comply with the above requirements shall preclude Settling Defendants
or Owner Settling Defendant from asserting any claim of Force Majeure for that
event for the period of time of such failure to comply, and for any additional
delay caused by such failure. Settling Defendants shall be
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deemed to know of any circumstance of which Settling Defendants, any entity
controlled by Settling Defendants or their contractors knew or should have
known. Owner Settling Defendant shall be deemed to know of any circumstance of
which Owner Settling Defendant, any entity controlled by Owner Settling
Defendant, or its contractors knew or should have known. Neither Settling
Defendants nor Owner Settling Defendant shall be deemed to have knowledge of
circumstances within the control of the other Party or any entity controlled by
the other Party, and a Force Majeure event hereunder shall include events
arising from causes beyond the control of Settling Defendants or Owner Settling
Defendant, as the case may be, even if such events are within the control of the
other Party or any entity controlled by the other Party.
61. If EPA agrees that the delay or anticipated delay is
attributable to a Force Majeure event, the time for performance of the
obligations under this Consent Decree that are affected by the Force Majeure
event will be extended by EPA for such time as is necessary to complete those
obligations, but in any event, no longer than the period performance was delayed
as a result of the Force Majeure event. An extension of the time for performance
of the obligations affected by the Force Majeure event shall not, of itself,
extend the time for performance of any other unrelated obligation. If EPA does
not agree that the delay or anticipated delay has been or will be caused by a
Force Majeure event, EPA will notify the Settling Defendants or Owner Settling
Defendant, in writing, of its decision. If EPA agrees
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that the delay is attributable to a Force Majeure event, EPA will notify the
Settling Defendants or Owner Settling Defendant, in writing, of the length of
the extension for performance of the obligations affected by the Force Majeure
event.
62. If the Settling Defendants or Owner Settling Defendant
elect to invoke the dispute resolution procedures set forth in Section XIX
(Dispute Resolution) regarding a Force Majeure event, they shall do so no later
than fifteen (15) days after receipt of EPA's notice. In any such proceeding,
Settling Defendants or Owner Settling Defendant shall have the burden of
demonstrating by a preponderance of the evidence that the delay or anticipated
delay has been or will be caused by a Force Majeure event, that the duration of
the delay or the extension sought was or will be warranted under the
circumstances, that best efforts were exercised to avoid and mitigate the
effects of the delay, and that Settling Defendants or Owner Settling Defendant,
as appropriate, complied with the requirements of Paragraphs 59 and 60 above. If
Settling Defendants or Owner Settling Defendant carry this burden, the delay at
issue shall be deemed not to be a violation by Settling Defendants or Owner
Settling Defendant of the affected obligation of this Consent Decree identified
to EPA and, if applicable, the Court.
XIX. DISPUTE RESOLUTION
63. Unless otherwise expressly provided for in this Consent
Decree, the dispute resolution procedures of this Section
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shall be the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree. However, the procedures set forth in this
Section shall not apply to actions by the United States to enforce obligations
of the Settling Defendants that have not been disputed in accordance with this
Section.
64. 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 twenty (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 sends the other
parties a written Notice of Dispute.
65.a. In the event that the parties cannot resolve a dispute
by informal negotiations under the preceding Paragraph, then the position
advanced by EPA shall be considered binding unless, within thirty (30) days
after the conclusion of the informal negotiation period, Settling Defendants or
Owner Settling Defendant invoke the formal dispute resolution procedures of this
Section by serving on the United States a written Statement of Position on the
matter in dispute, including, but not limited to, any factual data, analysis or
opinion supporting that position and any supporting documentation relied upon by
the Settling Defendants or Owner Settling Defendant that is not already in the
ROD administrative record
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or the post-ROD site file. The Statement of Position shall
specify the Settling Defendants' or Owner Settling Defendant's
position as to whether formal dispute resolution should proceed
under Paragraph 66 or Paragraph 67.
b. Within thirty (30) days after receipt of Settling
Defendants' or Owner Settling Defendant's Statement of Position, EPA will serve
on the appropriate Party 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 that is not already in the ROD
administrative record or the post-ROD Site file. EPA's Statement of Position
shall include a statement as to whether formal dispute resolution should proceed
under Paragraph 66 or 67. Within ten (10) days after receipt of EPA's Statement
of Position, Settling Defendants or Owner Settling Defendant may submit a Reply.
c. If there is disagreement between EPA and the Settling
Defendants or Owner Settling Defendant as to whether dispute resolution should
proceed under Paragraph 66 or 67, the parties to the dispute shall follow the
procedures set forth in the Paragraph determined by EPA to be applicable.
However, if the Settling Defendants or Owner Settling Defendant ultimately
appeal to the Court to resolve the dispute, the Court shall determine which
Paragraph is applicable in accordance with the standards of applicability set
forth in Paragraphs 66 and 67.
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66. Formal dispute resolution for disputes pertaining to the
selection or adequacy of any response action and all other disputes that are
accorded review on the administrative record under applicable principles of
administrative law shall be conducted pursuant to the procedures set forth in
this Paragraph. For purposes of this Paragraph, the adequacy of any response
action includes, without limitation: (1) the adequacy or appropriateness of
plans, procedures to implement plans, or any other items requiring approval by
EPA under this Consent Decree; and (2) the adequacy of the performance of
response actions taken pursuant to this Consent Decree. Nothing in this Consent
Decree shall be construed to allow any dispute by Settling Defendants or Owner
Settling Defendant regarding the validity of the ROD's provisions.
a. An administrative record of the dispute shall be maintained
by EPA and shall contain all statements of position, including supporting
documentation, submitted pursuant to this Section. Where appropriate, EPA may
allow submission of supplemental statements of position by the parties to the
dispute.
b. The Director of the Environmental Cleanup Office, EPA
Region 10, will issue a final administrative decision resolving the dispute
based on the administrative record described in Paragraph 66.a. This decision
shall be binding upon the Settling Defendants and/or Owner Settling Defendant,
subject
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only to the right to seek judicial review pursuant to
subparagraphs c and d of this Paragraph.
c. Any administrative decision made by EPA pursuant to
Paragraph 66.b. shall be reviewable by this Court, provided that a motion for
judicial review of the decision is filed by the Settling Defendants or Owner
Settling Defendant with the Court and served on all Parties within ten (10) days
of receipt of EPA's decision. The motion shall include a description of the
matter in dispute, the efforts made by the parties to resolve it, the relief
requested, and the schedule, if any, within which the dispute must be resolved
to ensure orderly implementation of this Consent Decree. The United States may,
within fifteen (15) days of receipt of Settling Defendants' or Owner Settling
Defendant's motion or such other period as the court may permit, file a response
to Settling Defendants' or Owner Settling Defendant's motion.
d. In proceedings on any dispute governed by this Paragraph,
Settling Defendants or Owner Settling Defendant shall have the burden of
demonstrating that the decision of the Office of Environmental Cleanup Director
is arbitrary and capricious or otherwise not in accordance with law. Judicial
review of EPA's decision shall be on the administrative record compiled pursuant
to subparagraph 66.a.
67. 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
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record under applicable principles of administrative law, shall be governed by
this Paragraph.
a. Following receipt of Settling Defendants' or Owner Settling
Defendant's Statement of Position submitted pursuant to Paragraph 65, the
Director of the Environmental Cleanup Office, EPA Region 10, will issue a final
decision resolving the dispute. The Office of Environmental Cleanup Division
Director's decision shall be binding on the Settling Defendants or Owner
Settling Defendant unless, within ten (10) days of receipt of the decision, the
Settling Defendants or Owner Settling Defendant file with the Court and serve on
the parties a motion for judicial review of the decision setting forth the
matter in dispute, the efforts made by the parties to resolve it, the relief
requested, and the schedule, if any, within which the dispute must be resolved
to ensure orderly implementation of the Consent Decree. The United States may,
within fifteen (15) days of receipt of Settling Defendants' or Owner Settling
Defendant's motion or such other period that the court may permit, file a
response to Settling Defendants' or Owner Settling Defendant's motion.
b. Notwithstanding Paragraph N of Section I (Background) of
this Consent Decree, judicial review of any dispute governed by this Paragraph
shall be governed by applicable principles of law.
68. The invocation of formal dispute resolution procedures
under this Section shall not extend, postpone or
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affect in any way any obligation of the Settling Defendants or Owner Settling
Defendant under this Consent Decree, not directly in dispute, unless EPA or the
Court agrees otherwise. Stipulated penalties with respect to the disputed matter
shall continue to accrue, unless EPA agrees otherwise, but payment shall be
stayed pending resolution of the dispute as provided in Paragraph 72.
Notwithstanding the stay of payment, stipulated penalties shall accrue from the
first day of noncompliance with any applicable provision of this Consent Decree.
In the event that the Settling Defendants or Owner Settling Defendant do not
prevail on the disputed issue, stipulated penalties assessed by EPA shall be
paid as provided in Section XX (Stipulated Penalties).
XX. STIPULATED PENALTIES
69. Settling Defendants shall be liable for stipulated
penalties in the amounts set forth in Paragraphs 70 and 71 to the United States
for failure to comply with the requirements of this Consent Decree specified
below, unless excused under Section XVIII (Force Majeure) or unless EPA elects
to waive the same or Settling Defendants prevail in dispute resolution. Owner
Settling Defendant shall be liable for stipulated penalties set forth in
Paragraphs 70 and 71 to the United States for failure to perform and enforce
Institutional Controls contained in Section IX of this Consent Decree, unless
excused under Section XVIII (Force Majeure) or unless EPA elects to waive the
same or Owner Settling Defendant prevails in dispute resolution. "Compliance"
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by Settling Defendants and Owner Settling Defendant shall include completion of
the activities under this Consent Decree or any Work Plan or other plan approved
under this Consent Decree identified below in accordance with all applicable
requirements of law, this Consent Decree, the SOW, and any plans or other
documents approved by EPA pursuant to this Consent Decree within the specified
time schedules established by and approved under this Consent Decree.
70.a. Except as provided in subparagraph b of this Paragraph,
the following stipulated penalties shall accrue per violation per day for any
noncompliance with this Consent Decree:
Penalty Per Violation Per Day Period of Noncompliance
$ 300 First through the Thirtieth
Day
$ 700 Thirty-first through the
Sixtieth Day
$1,500 Sixty-first Day through the
Ninetieth Day
$5,000 Ninety-first Day and Beyond
b. The following stipulated penalties shall accrue per
violation per day for noncompliance with Section VI, Paragraph 12.e., and
failure to submit timely or adequate reports, written documents, and
deliverables set forth in Paragraphs 11 and 12 of Section VI and Section 4 of
the SOW (Performance of the Work by Settling Defendants), Section VIII, Section
IX except to the extent limited in Subparagraph c. below, Section XV, and
Section XXIV of this Consent Decree, and failure to perform or adequately
perform O & M:
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Penalty Per Violation Per Day Period of Noncompliance
$ 500 First through the Thirtieth
Day
$1,000 Thirty-first through the
Sixtieth Day
$3,000 Sixty-first through the
Ninetieth Day
$7,000 Ninety-first Day and Beyond
c. Notwithstanding the foregoing, Owner Settling Defendant
shall not be subject to Stipulated Penalties for failure to provide EPA with
timely notice under Paragraph 28(b) and 29 (including Appendices F and G) so
long as ARRC has: (i) timely executed and recorded the Declaration of
Restrictive Covenants and Notice of Remedial Action required under Paragraph
28.a.; (ii) imposed the access and use restrictions provided in Paragraph 29.a.
as a condition of the transfer; and (iii) placed the language contained in
Appendices F or G, or approved modified language, in the conveyance instrument,
as required by Paragraphs 29.d. and e. Owner Settling Defendant also shall not
be subject to stipulated penalties in the event that any of the access rights,
and land and water use restrictions provided in Section IX of this Consent
Decree, as supplemented or modified pursuant to this Consent Decree, are
determined by a court not to run with the land or bind subsequent owners,
transferees, or lessees of the Site.
71. In the event that EPA assumes performance of a portion or
all of the Work pursuant to Paragraph 84 of Section XXI (Covenants Not to Sue by
Plaintiff) and the costs associated with that Work exceed $25,000, Settling
Defendants shall be
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liable for a stipulated penalty in the amount of 10% of the cost of the Work
incurred by EPA but not to exceed $250,000.
72. All penalties shall begin to accrue on the day after the
complete performance is due (for timeliness and notice violations, including but
not limited to, submission of deliverables, compliance with any schedule
contained in any Work Plan, report, or other plan required under this Consent
Decree, and notice required under this Consent Decree) or the day after EPA
notifies the Settling Defendants in writing that a violation (other than one
based on timeliness) has occurred, and shall continue to accrue through the
final day of the correction of the noncompliance or completion of the activity.
However, stipulated penalties shall not accrue: (1) with respect to a deficient
submission under Section XI (EPA Approval of Plans and Other Submissions),
during the period, if any, beginning on the first (1st) day after EPA's receipt
of such submission until the date that EPA notifies Settling Defendants in
writing of any deficiency; (2) with respect to a decision by the Director of the
Office of Environmental Cleanup, EPA Region 10, under Paragraph 66.b. or 67.a.
of Section XIX (Dispute Resolution), during the period, if any, beginning on the
eleventh (11th) day after the date that Settling Defendants' (i) reply to EPA's
Statement of Position is received (for decisions under Paragraph 66.b.) or (ii)
statement of position under Paragraph 65 is received (for decisions under
Paragraph 67.a.) until the date that the Director issues a final decision
regarding such dispute;
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or (3) with respect to judicial review by this Court of any dispute under
Section XIX (Dispute Resolution), during the period, if any, beginning on the
31st day after the date the Settling Defendants or Owner Settling Defendants
file the motion for judicial review until the date that the Court issues a final
decision regarding such dispute. Nothing herein shall prevent the simultaneous
accrual of separate penalties for separate violations of this Consent Decree.
73. Following EPA's determination that Settling Defendants or
Owner Settling Defendant have failed to comply with a requirement of this
Consent Decree, EPA shall give Settling Defendants or Owner Settling Defendant
written notification of the same and describe the noncompliance. EPA shall send
the Settling Defendants or Owner Settling Defendant a written demand for the
payment of the penalties. Except for violations based on timeliness and
noncompliance with a known due date or trigger event as contained in Paragraph
72, penalties shall not accrue as provided in the preceding Paragraph until EPA
has notified the Settling Defendants or Owner Settling Defendant in writing of a
violation.
74. All penalties accruing under this Section shall be due and
payable to the United States within thirty (30) days of the Settling Defendants'
or Owner Settling Defendant's receipt from EPA of a demand for payment of the
penalties, unless the appropriate Parties invoke the Dispute Resolution
procedures under Section XIX (Dispute Resolution). All payments to the
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United States under this Section shall be paid by certified or cashier's
check(s) made payable to "EPA Hazardous Substances Superfund," shall be mailed
to:
Mellon Bank
EPA-Region 10
Attn: Superfund Accounting
P.O. Box 360903M
Pittsburgh, PA 15251
and shall indicate that the payment is for stipulated penalties, and shall
reference the EPA Region and Site/Spill ID #102P, the DOJ Case Number
90-11-3-810, and the name and address of the party making payment. 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 XXVI
(Notices and Submissions), and to Joseph Penwell, Finance Unit, Office of
Management Programs, Mail Stop OMP-146, 1200 Sixth Avenue, Seattle, Washington,
98101. In the alternative, Settling Defendants shall make payments required by
this Paragraph to the EPA Hazardous Substance Superfund by FedWire Electronic
Funds Transfer. Wire transfer instructions will be provided by EPA upon request.
75. The payment of penalties shall not alter in any way
Settling Defendants' obligation to complete the performance of the Work
specifically agreed to by them in this Consent Decree or Owner Settling
Defendant's obligation to perform the Institutional Controls required by Section
IX.
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76. Penalties shall continue to accrue as provided in
Paragraphs 72 and 73 during any dispute resolution period, but need not be paid
until one of the following events occur:
a. If the dispute is resolved by agreement or by a decision of
EPA that is not appealed to this Court, accrued penalties determined to be owing
shall be paid to EPA within fifteen (15) days of the agreement or the receipt of
EPA's decision or order;
b. If the dispute is appealed to this Court and the United
States prevails in whole or in part, Settling Defendants or Owner Settling
Defendant shall pay all accrued penalties determined by the Court to be owed to
EPA within sixty (60) days of receipt of the Court's decision or order, except
as provided in Subparagraph c below;
c. If the District Court's decision is appealed by any Party,
Settling Defendants or Owner Settling Defendant shall pay all accrued penalties
determined by the District Court to be owing to the United States into an
interest-bearing escrow account within sixty (60) days of receipt of the Court's
decision or order. Penalties shall be paid into this account as they continue to
accrue, at least every sixty (60) days. Within fifteen (15) days of receipt of
the final appellate court decision, the escrow agent shall pay the balance of
the account to EPA or to Settling Defendants or Owner Settling Defendant to the
extent that they prevail, as determined by the appellate court.
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77.a. If Settling Defendants or Owner Settling Defendant fail
to pay stipulated penalties when due, the United States may institute
proceedings to collect the penalties, as well as Interest. Settling Defendants
or Owner Settling Defendant shall pay Interest on the unpaid balance, which
shall begin to accrue on the date of demand made pursuant to Paragraph 74.
b. Nothing in this Consent Decree 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' or Owner Settling Defendant's violation of this Decree or of the
statutes and regulations upon which it is based, including, but not limited to,
penalties pursuant to Section 122(l) of CERCLA, 42 U.S.C. ss. 9622(l). Provided,
however, that the United States shall not seek civil penalties pursuant to
Section 122(l) of CERCLA, 42 U.S.C. ss. 9622(l), for any violation for which a
stipulated penalty is provided herein, except in the case of a willful violation
of the Consent Decree.
78. Notwithstanding any other provision of this Section, the
United States may, in its unreviewable discretion, waive any portion of
stipulated penalties that have accrued pursuant to this Consent Decree.
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XXI. COVENANTS NOT TO SUE BY PLAINTIFF
79. In consideration of the actions that will be performed and
the payments that will be made by the Settling Defendants and, where applicable,
the Owner Settling Defendant, under the terms of the Consent Decree, and except
as specifically provided in Paragraphs 80, 81, and 83 of this Section, the
United States covenants not to sue or to take administrative action against
Settling Defendants and Owner Settling Defendant pursuant to Sections 106 and
107(a) of CERCLA, 42 U.S.C. ss.ss. 9606 and 9607(a), relating to the Site. These
covenants not to sue shall take effect with respect to future liability upon
Certification of Completion of Remedial Action by EPA pursuant to Paragraph 50
of Section XIV (Certification of Completion). These covenants not to sue are
conditioned upon the satisfactory performance by Settling Defendants and Owner
Settling Defendant of their obligations under this Consent Decree. These
covenants not to sue extend only to the Settling Defendants and Owner Settling
Defendant and do not extend to any other person.
80. 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 before the Court in this action or in a new action, or to
issue an administrative order seeking to compel Settling Defendants to perform
further response actions relating to the Site or to reimburse the United States
for additional costs of response and/or to compel Owner
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Settling Defendant to perform Supplemental Institutional Controls that only it
can perform as the party in possession and control of the property if, prior to
Certification of Completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA,
are discovered; or
(ii) information, previously unknown to EPA, is
received, in whole or in part;
and these previously unknown conditions or information together with any other
relevant information indicates that the Remedial Action is not protective of
human health or the environment.
81. United States' Post-certification reservations.
Notwithstanding any other provision of this Consent Decree, the United States
reserves, and this Consent Decree is without prejudice to, the right to
institute proceedings before the Court in this action or in a new action, or to
issue an administrative order seeking to compel Settling Defendants to perform
further response actions relating to the Site or to reimburse the United States
for additional costs of response and/or to compel Owner Settling Defendant to
perform Supplemental Institutional Controls that only it can perform as the
party in possession and control of the property if, subsequent to Certification
of Completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA,
are discovered; or
(ii) information, previously unknown to EPA, is
received, in whole or in part;
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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.
82. For purposes of Paragraph 80, the information and the
conditions known to EPA shall include only that information and those conditions
known to EPA as of the date the ROD was signed and set forth in the Record of
Decision for the Site and the administrative record supporting the Record of
Decision. For purposes of Paragraph 81, the information and the conditions known
to EPA shall include only that information and those conditions known to EPA as
of the date of Certification of Completion of the Remedial Action and set forth
in the Record of Decision, the administrative record supporting the Record of
Decision, the post-ROD administrative record, or in any information received by
EPA pursuant to the requirements of this Consent Decree prior to Certification
of Completion of the Remedial Action.
83.a. 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 79. The United States reserves, and this Consent Decree
is without prejudice to, all rights against Settling Defendants with respect to
all other matters, including but not limited to, the following:
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(1) claims based on a failure by Settling Defendants to meet a
requirement of this Consent Decree;
(2) claims seeking, or liability for, the securing and
implementation of Supplemental Institutional Controls, and liability for any
response costs incurred relating to the implementation or securing of
Supplemental Institutional
Controls;
(3) liability arising from the past, present, or future
disposal, release, or threat of release of Waste Materials outside of the Site;
(4) liability for future disposal of Waste Material at the
Site, other than as provided in the ROD, the Work Plan, or otherwise ordered or
approved in writing by EPA;
(5) liability for damages for injury to, destruction
of, or loss of natural resources, and for the costs of any
natural resource damage assessments;
(6) criminal liability;
(7) liability for violations of federal or state law which
occur during or after implementation of the Remedial Action; and
(8) liability, prior to Certification of Completion of the
Remedial Action, for additional response actions that EPA determines are
necessary to achieve Performance Standards, but that cannot be required pursuant
to Paragraph 15 (Modification of the SOW or Related Work Plans).
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b. With respect to the Owner Settling Defendant, the covenants
not to sue set forth above do not pertain to any matters other than those
expressly specified in Paragraph 79. The United States reserves, and this
Consent Decree is without prejudice to, all rights against Owner Settling
Defendant with respect to all other matters, including but not limited to, the
following:
(1) claims based on a failure by Owner Settling Defendant to
meet a requirement of this Consent Decree;
(2) claims seeking, or liability for, the securing and
implementation of Supplemental Institutional Controls that only Owner Settling
Defendant, as the party in possession and control of the property can perform,
and liability for any response costs incurred relating to the implementation or
securing of such Supplemental Institutional Controls;
(3) liability arising from the past, present, or future
disposal, release, or threat of release of Waste Materials outside of the Site;
(4) liability for future disposal of Waste Material at the
Site, other than as provided in the ROD, the Work Plan, or otherwise ordered or
approved in writing by EPA;
(5) criminal liability; and
(6) liability for violations of federal or state law which
occur during or after implementation of the Remedial Action.
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84. Work Takeover. In the event EPA determines that Settling
Defendants and, with respect to implementation of Institutional Controls
contained in Section IX of this Consent Decree only, Owner Settling Defendant
have ceased implementation of any portion of the Work or Institutional Controls
(except as a result of a Force Majeure event), are seriously or repeatedly
deficient or late in their performance of the Work or Institutional Controls, or
are implementing the Work or Institutional Controls in a manner which may cause
an endangerment to human health or the environment, EPA may assume the
performance of all or any portions of the Work or may seek to enforce such
Institutional Controls required by Section IX as EPA determines necessary.
Settling Defendants and Owner Settling Defendant may invoke the procedures set
forth in Section XIX (Dispute Resolution), Paragraph 66 only, to dispute EPA's
determination that takeover of the Work or Institutional Controls is warranted
under this Paragraph. Costs incurred by the United States in performing the Work
and Institutional Controls pursuant to this Paragraph shall be considered Future
Response Costs that Settling Defendants shall pay pursuant to Section XVI
(Reimbursement of Response Costs).
85. 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.
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XXII. COVENANTS BY SETTLING DEFENDANTS
AND OWNER SETTLING DEFENDANT
86. Covenant Not to Sue. Subject to the reservations in
subparagraph 86.d., Settling Defendants and Owner Settling Defendant 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, and Future Response Costs as
defined herein, or this
Consent Decree, including, but not limited to:
a. any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund (established pursuant to the Internal Revenue
Code, 26 U.S.C. ss. 9507) through CERCLA Sections 106(b)(2), 107, 111, 112, 113,
42 U.S.C. ss.ss. 9606(b)(2), 9607, 9611, 9612, 9613, or any other provision of
law;
b. any claims against the United States, including any
department, agency or instrumentality of the United States under CERCLA Sections
107 or 113, 42 U.S.C. ss.ss. 9607 or 9613, related to the Site; or
c. any claims arising out of response activities at the Site,
including claims based on EPA's selection of response actions, oversight of
response activities or approval of plans for such activities.
d. Notwithstanding the provisions of Paragraph 86.a., Owner
Settling Defendant reserves any right it may have to pursue the claim it has
asserted against the United States as provided in Paragraphs 12.b. and 20.c. of
the Partial Consent Decree.
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e. The Settling Defendants reserve, and this Consent Decree is
without prejudice to, claims against the United States, subject to the
provisions of Chapter 171 of Title 28 of the United States Code, for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the United States while
acting within the scope of his office or employment under circumstances where
the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
However, any such claim shall not include a claim for any damages caused, in
whole or in part, by the act or omission of any person, including any
contractor, who is not a federal employee as that term is defined in 28 U.S.C.
ss. 2671; nor shall any such claim include a claim based on EPA's selection of
response actions, or the oversight or approval of the Settling Defendants' plans
or activities. The foregoing applies only to claims which 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;
87. 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. ss. 9611, or 40 C.F.R. ss. 300.700(d).
88. In consideration of the mutual obligations undertaken and
the payments to be made by the Settling Defendants and Owner Settling Defendant
under the terms of this Consent
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Decree, each of the Settling Defendants and Owner Settling Defendant covenants
not to sue any other Settling Defendant or Owner Settling Defendant for
contribution pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C. ss.ss. 9607 or
9613, any provision of the Resource Conservation and Recovery Act, state
statutory or common law, or any other provision of law with respect to the Site,
including, without limitation, contribution claims relating to the Work, this
Consent Decree or payment of or liability for Future Costs, as that term is
defined in Section IV of the Partial Consent Decree, provided, however, that as
to each Settling Defendant and Owner Settling Defendant, these covenants are
conditioned on performance by each Settling Defendant and the Owner Settling
Defendant of the obligations undertaken by each under this Consent Decree and
payment of its allocated share of the costs of the Work. These covenants not to
sue extend only to the Settling Defendants and Owner Settling Defendant and not
to any other persons or entities.
XXIII. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
89. 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
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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.
90. The Parties agree, and by entering this Consent Decree
this Court finds, that the Settling Defendants and Owner Settling Defendant are
entitled, as of the Effective Date of this Consent Decree, to protection from
contribution actions or claims as provided by CERCLA Section 113(f)(2), 42
U.S.C. ss. 9613(f)(2), for matters addressed in this Consent Decree.
91. The Settling Defendants and Owner Settling Defendant 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 sixty (60) days prior to the initiation of such suit or
claim.
92. The Settling Defendants and Owner Settling Defendant 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 the United
States in writing within ten (10) days of service of the complaint on them. In
addition, Settling Defendants and Owner Settling Defendant shall notify the
United States within ten (10) days of service or receipt of any Motion for
Summary Judgment and within ten (10) days of receipt of any order from a court
setting a case for trial of matters related to this Consent Decree.
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93. 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 and
Owner Settling Defendant shall not assert, and may not maintain, any defense or
claim based upon the principles of waiver, res judicata, collateral estoppel,
issue preclusion, claim-splitting, or other defenses based upon any contention
that the claims raised by the 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 XXI (Covenants Not to Sue by Plaintiff).
XXIV. ACCESS TO INFORMATION
94. Subject to the terms of Paragraph 95, Settling Defendants
and Owner Settling Defendant shall provide to EPA, upon request, 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 and Owner Settling Defendant shall also
make available to EPA, for purposes of investigation,
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information gathering, or testimony, their employees, agents, or representatives
with knowledge of relevant facts concerning the performance of the Work.
95.a. Settling Defendants and Owner Settling Defendant may
assert business confidentiality claims covering part or all of the documents or
information submitted to Plaintiff under this Consent Decree to the extent
permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. ss.
9604(e)(7), and 40 C.F.R. ss. 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 or Owner Settling Defendant in writing that the documents or
information are not confidential under the standards of Section 104(e)(7) of
CERCLA, 42 U.S.C. ss. 9604(e)(7), the public may be given access to such
documents or information without further notice to Settling Defendants or Owner
Settling Defendant.
b. The Settling Defendants and Owner Settling Defendant may
assert that certain documents, records and other information are privileged
under the attorney-client privilege or any other privilege or doctrine
recognized by federal law. If the Settling Defendants or Owner Settling
Defendant assert such a privilege in lieu of providing documents, 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
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information; (3) the name and title of the author of the document, record, or
information; (4) the name and title of each addressee and recipient; (5) a
description of the contents of the document, record, or information: and (6) the
privilege asserted by Settling Defendants. However, no documents, reports or
other information created or generated pursuant to the requirements of the
Consent Decree shall be withheld on the grounds that they are privileged.
96. 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.
XXV. RETENTION OF RECORDS
97. Settling Defendants and Owner Settling Defendant agree
that records and documents within their possession or control that relate in any
manner to the performance of the Work or liability of any person for response
actions conducted or to be conducted at the Site shall be retained in accordance
with Section VIII of the Partial Consent Decree.
98. Each Settling Defendant and Owner Settling Defendant
hereby certify individually that, to the best of its knowledge and belief, after
thorough inquiry, it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents or other information relating to
its potential
CONSENT DECREE FOR REMEDIAL DESIGN AND
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liability regarding the Site since notification of potential liability by the
United States or the filing of suit against it regarding the Site and that it
has fully complied with any and all EPA requests for information pursuant to
Section 104(e) and 122(e) of CERCLA, 42 U.S.C. ss.ss. 9604(e) and 9622(e), and
Section 3007 of RCRA, 42 U.S.C. ss. 6927.
XXVI. NOTICES AND SUBMISSIONS
99. Whenever, under the terms of this Consent Decree, written
notice is required to be given or a report or other document is required to be
sent by one Party to another, it shall be directed to the individuals at the
addresses specified below, unless those individuals or their successors give
notice of a change to the other Parties, in writing. All notices and submissions
shall be considered effective upon receipt, unless otherwise provided. Written
notice as specified herein shall constitute complete satisfaction of any written
notice requirement of the Consent Decree with respect to the United States, EPA,
the Settling Defendants, and Owner Settling Defendant 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. 20044-7611
Re: DJ # 90-11-3-810
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
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As to EPA:
Lori L. Houck
Office of Regional Counsel
U.S. EPA, Region 10
ORC-158
1200 Sixth Avenue
Seattle, Washington 98101
Christopher Cora
EPA Project Coordinator
U.S. EPA, Region 10
ECL-114
1200 Sixth Avenue
Seattle, Washington 98101
As to the State:
Jennifer Roberts
State Project Coordinator
Alaska Department of Environmental Conservation
555 Cordova Street, Second Floor
Anchorage, Alaska 99501-2617
As to the Settling Defendants:
Alex Tula
Alta Geosciences, Inc.
11711 Northcreek Parkway South, Suite 101
Bothell, WA 98011-8224
As to the Owner Settling Defendant
Phyllis C. Johnson, Esq.
General Counsel
Alaska Railroad Corporation
P.O. Box 107500
327 W. Ship Creek Avenue
Anchorage, Alaska 99501
As to the Federal PRPs:
Bruce Noble
Defense Reutilization and Marketing Service
ATTN: DRMS-FHO
Federal Center 74 N. Washington Avenue
Battle Creek, MI 49017-3092
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XXVII. EFFECTIVE DATE
100. The Effective Date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court, except as otherwise
provided herein.
XXVIII. RETENTION OF JURISDICTION
101. This Court retains jurisdiction over both the subject
matter of this Consent Decree and the Settling Defendants and Owner Settling
Defendant for the duration of the performance of the terms and provisions of
this Consent Decree for the purpose of enabling any of the Parties to apply to
the Court at any time for such further order, direction, and relief as may be
necessary or appropriate for the construction or modification of this Consent
Decree, or to effectuate or enforce compliance with its terms, or to resolve
disputes in accordance with Section XIX (Dispute Resolution) hereof.
XXIX. APPENDICES
102. The following appendices are attached to and incorporated
into this Consent Decree:
"Appendix A" is the ROD.
"Appendix B" is the SOW.
"Appendix C" is the legal description of the Site.
"Appendix D" is a map of the Site.
"Appendix E" is Declaration of Restrictive Covenants and
Notice of Remedial Action.
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"Appendix F" is the Reservation of Access Easement and
Restrictions on Use.
"Appendix G" is the Lease Prohibitions.
XXX. COMMUNITY RELATIONS
103. Settling Defendants shall propose to EPA their
participation in the community relations plan to be developed by EPA. EPA will
determine the appropriate role for the Settling Defendants under the Plan.
Settling Defendants shall also cooperate with EPA in providing information
regarding the Work to the public. As requested by EPA, Settling Defendants shall
participate in the preparation of such information for dissemination to the
public and in public meetings which may be held or sponsored by EPA to explain
activities at or relating to the Site.
XXXI. MODIFICATION
104. Schedules specified in this Consent Decree for completion
of the Work may be modified by agreement of EPA and the Settling Defendants. All
such modifications shall be made in writing.
105. Except as provided in Paragraph 14 ("Modification of the
SOW or related Work Plans"), no material modifications shall be made to the SOW
without written notification to and written approval of the United States,
Settling Defendants, and Owner Settling Defendant. The dispute resolution
provisions in Section XIX. of this Consent Decree shall apply to this
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Paragraph. 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. No material modification to this Consent
Decree shall be made without the written approval of the United States, Settling
Defendants, Owner Settling Defendant, and the Court, after providing the State,
and, if appropriate, the public, with a reasonable opportunity to review and
comment on the proposed modification.
106. Nothing in this Decree shall be deemed to alter the
Court's power to enforce, supervise or approve modifications to this Consent
Decree.
XXXII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
107. 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. ss. 9622(d)(2), and 28
C.F.R. ss. 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 and Owner Settling Defendant
consent to the entry of this Consent Decree without further notice; provided,
however, that this Consent Decree shall not be effective or binding on the
Parties
CONSENT DECREE FOR REMEDIAL DESIGN AND
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unless each and every Settling Defendant and Owner Settling Defendant has duly
executed this Consent Decree.
109. 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.
XXXIII. SIGNATORIES/SERVICE
110. Each undersigned representative of a Settling Defendant
and Owner Settling Defendant to this Consent Decree and the Assistant Attorney
General for Environment and Natural Resources of the Department of Justice
certifies that he or she is fully authorized to enter into the terms and
conditions of this Consent Decree and to execute and legally bind such Party to
this document.
111. Each Settling Defendant and Owner Settling Defendant
hereby agrees not to oppose entry of this Consent Decree by this Court or to
challenge any provision of this Consent Decree unless the United States has
notified the Settling Defendants and Owner Settling Defendant, in writing, that
it no longer supports entry of the Consent Decree.
112. Each Settling Defendant and Owner Settling Defendant
shall identify, on the attached signature page, the name, address, and telephone
number of an agent who is authorized to accept service of process by mail on
behalf of that Party with
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respect to all matters arising under or relating to this Consent Decree.
Settling Defendants and Owner Settling Defendant hereby agree for purposes of
this action to accept service in that manner and to waive the formal service
requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any
applicable local rules of this Court, including, but not limited to, service of
a summons.
SO ORDERED THIS 24th DAY OF January , 1998.
/s/ John W. Sedwick
John W. Sedwick
United States District Judge
CONSENT DECREE FOR REMEDIAL DESIGN AND
REMEDIAL ACTION FOR THE STANDARD STEEL
AND METALS SALVAGE YARD SUPERFUND SITE - Page 100
<PAGE>
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