October 2001
Ciba Geigy Consent Decree
V. GENERAL PROVISIONS
5. Objectives of the Parties. The objectives of the Parties in entering into this Consent Decree are to protect public health or welfare or the environment at the Site by the design and implementation of response actions at the Site by the Settling Defendants, to reimburse response costs of the Plaintiffs, and to resolve the claims of Plaintiffs against Settling Defendants as provided in this Consent Decree. Nothing in this Consent Decree shall affect the validity of the OU1 Consent Decree, which remains in full force and effect. Each consent decree shall be interpreted in accordance with its terms.
6. Commitments by Settling Defendants. Settling Defendants shall finance and perform the Work in accordance with this Consent Decree, the ROD, the SOW, and all work plans and other plans, standards, specifications, and schedules set forth herein or developed by Settling Defendants and approved by EPA pursuant to this Consent Decree. Settling Defendants shall also reimburse the United States for Past Response Costs and Future Response Costs as provided in this Consent Decree. Settling Defendant Ciba Specialty Chemicals Corporation shall perform the work and Settling Defendant Novartis Corporation shall remain legally liable as the successor to Ciba-Geigy Corporation. Notwithstanding the prior sentence in this paragraph 6, both Settling Defendants shall remain jointly and severally liable with respect to the performance of all of the Settling Defendants' obligations required by this Consent Decree. Nothing in this Consent Decree shall modify, supersede or amend prior agreements among and between the Settling Defendants.
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 must also comply with all applicable or relevant and appropriate requirements of all Federal and state environmental laws as set forth in the ROD and the SOW. The activities conducted pursuant to this Consent Decree, if approved by EPA, shall be considered to be consistent with the NCP.
8. Permits.
A. As provided in Section 121(e) of CERCLA and 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 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. Notice to Successors-in-Title.
A. With respect to any property owned or controlled by the Settling Defendants that is located within the Site, within 15 days after the entry of this Consent Decree, the Settling Defendants shall submit to EPA for review and approval a notice to be filed with the Clerk of Ocean County, State of New Jersey, which shall provide notice to all successors-in-title that the property is part of the Site, that EPA selected a remedy for the Site on September 29, 2000, and that the Settling Defendants have entered into a Consent Decree requiring implementation of the remedy. Such notice(s) shall identify the United States District Court in which the Consent Decree was filed, the name and civil action number of this case, and the date the Consent Decree was entered by the Court. The Settling Defendants shall record the notice(s) within 10 days of EPA's approval of the notice(s). The Settling Defendants shall provide EPA with a certified copy of the recorded notice(s) within 10 days of recording such notice(s).
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 Settling Defendant(s) conveying the interest shall give the grantee written notice of (i) this Consent Decree, (ii) any instrument by which an interest in real property has been conveyed that confers a right of access to the Site (hereinafter referred to as "access easements") pursuant to Section IX (Access and Institutional Controls), and (iii) any instrument by which an interest in real property has been conveyed that confers a right to enforce restrictions on the use of such property (hereinafter referred to as "restrictive easements") pursuant to Section IX (Access and Institutional Controls). At least 30 days prior to such conveyance, the Settling Defendants conveying the interest shall also give written notice to EPA and the State of the proposed conveyance, including the name and address of the grantee, and the date on which notice of the Consent Decree, access easements, and/or restrictive easements was given to the grantee.
C. In the event of any such conveyance, the Settling Defendants' obligations under this Consent Decree, including, but not limited to, the obligation to provide or secure access and institutional controls, as well as to abide by such institutional controls, pursuant to Section IX (Access and Institutional Controls) of this Consent Decree, shall continue to be met by the Settling Defendants. 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, absent the prior written consent of EPA. If the United States approves, the grantee may perform some or all of the Work under this Consent Decree.
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANT
10. Project Coordinator
A. All aspects of the Work to be performed by Settling Defendants pursuant to Sections VI (Performance of the Work by Settling Defendant), 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 Settling Defendants' Project Coordinator (see Paragraph 43). If at any time thereafter, Settling Defendants propose to change a Project Coordinator, Settling Defendants shall give such notice to EPA, and must obtain an authorization to proceed from EPA before the new Project Coordinator performs, directs, or supervises any Work under this Consent Decree (see Section XII).
B. If EPA disapproves a proposed Project Coordinator, 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 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 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 relief under the provisions of Section XVIII (Force Majeure) hereof.
11. Remedial Design.
A. Within 45 days after the lodging of this Consent Decree with the Court, Settling Defendants shall submit to EPA 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. As part of the Remedial Design Work Plan, the Settling Defendants shall submit to EPA a Health and Safety Plan for field design activities which conforms to the applicable Occupational Safety and Health Administration and EPA requirements including, but not limited to, 29 C.F.R. § 1910.120.
B. The Remedial Design Work Plan shall include plans and schedules for implementation of all remedial design and pre-design activities identified in the SOW, including, but not limited to, plans and schedules for the completion of: pre-design activities, i.e. chemical and geotechnical testing and collection of air monitoring data, and design activities, i.e. air monitoring, drum handling, transportation and disposal, soil excavation, ex-situ bioremediation of soils, groundwater extraction and recharge system optimization, lime stabilization area remediation, deed restrictions, perched water management, in-situ groundwater bioremediation, community relations and emergency management. Also, additional design tasks may include the following items: (1) design sampling and analysis plan (including, but not limited to, a Remedial Design Quality Assurance Project Plan (RD QAPP) in accordance with Section VIII (Quality Assurance, Sampling and Data Analysis)); (2) a preliminary design; (3) an intermediate design, if required by EPA; (4) a pre-final/final design; and (5) a Construction Quality Assurance Plan. In addition, the Remedial Design Work Plan shall include a schedule for completion of the Remedial Action Work Plan and the method of selection of Remedial Action contractors.
C. Upon approval of the Remedial Design Work Plan by EPA, and submittal of the Health and Safety Plan for all field activities to EPA, Settling Defendants shall implement the Remedial Design Work Plan. The Settling Defendants shall submit to EPA 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 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 design submittal shall include, at a minimum, the following: (1) design criteria; (2) results of treatability studies; (3) results of additional field sampling and pre-design work; (4) project delivery strategy; (5) preliminary plans, drawings and sketches; (6) required specifications in outline form; and (7) preliminary construction schedule.
E. The intermediate design submittal, if required by EPA, shall be a continuation and expansion of the preliminary design. Any value engineering proposals must be identified and evaluated during this review.
F. The pre-final/final design submittal shall include those requirements detailed in the attached SOW, including, at a minimum: (1) final plans and specifications; (2) Construction Quality Assurance Project Plan (CQAPP); (3) Contingency Plan; and, (4) Long-Term Monitoring Outline. The CQAPP, which shall detail the approach to quality assurance during construction activities at the Site, shall specify a quality assurance official ("QA Official"), independent of any Remedial Action contractor(s), to conduct a quality assurance program during the construction phase of the project.
12. Remedial Action.
A. Within 45 days of EPA's approval of the Remedial Design, the Settling Defendants shall award the initial Remedial Action contract (See Section X of the SOW). However, should the entry of this Consent Decree by the Court not be completed at the time of the Remedial Design approval, the Settling Defendants shall award the initial Remedial Action contract within 45 days from the entry of this Consent Decree.
B. Within 45 days after the award of RA contracts the Settling Defendants shall submit to EPA 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 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. § 1910.120.
C. The Remedial Action Work Plan shall address the following: air monitoring, drum handling, transportation and disposal, soil excavation, ex-situ bioremediation of soils, groundwater extraction and recharge system optimization, lime sludge area remediation where required based on design, deed restrictions, perched water management, in-situ groundwater bioremediation, community relations and emergency management activities for which methodologies, plans and schedules should be included in the Remedial Action Work Plan. The methods for implementation of the Remedial Action shall be included in the Site Management Plan as detailed in the attached SOW, and may include the following: (1) the schedule for completion of the Remedial Action; (2) schedule for developing and submitting other required Remedial Action plans; (3) methodology for implementation of the Construction Quality Assurance Plan; (4) methods for satisfying permitting requirements; (5) methodology for implementation of a Monitoring Plan; (6) methodology for implementation of the Contingency Plan; (7) tentative formulation of the Remedial Action team; (8) construction quality control plan (by constructor); and (9) procedures and plans for the decontamination of equipment and the disposal of contaminated materials. The Remedial Action Work Plan also shall include a schedule for implementation of all Remedial Action tasks identified in the final design submittal and shall identify the initial formulation of the Settling Defendants' Remedial Action Project Team (including, but not limited to, the Project Coordinator). The Work Plan shall also include the plans required by the SOW.
D. Upon approval of the Remedial Action Work Plan by EPA, Settling Defendants shall implement the activities required under the Remedial Action Work Plan. The Settling Defendants shall submit to EPA 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, Settling Defendants shall not commence physical Remedial Action activities at the Site prior to approval of the Remedial Action Work Plan.
13. The Settling Defendants shall continue to implement the Remedial Action and Long-Term Monitoring Plan until the Performance Standards are achieved and for so long thereafter as is otherwise 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. Provided, however, that a modification may only be required pursuant to this Paragraph to the extent that it is consistent with the scope of the remedy selected in the ROD.
B. For the purposes of this Paragraph 14 and Paragraph 50 and 51 only, the "scope of the remedy selected in the ROD" is as follows:
· On-site bioremediation of approximately 145,000 cubic yards of contaminated soil.
· Off-site treatment and/or disposal of approximately 5,000 cubic yards of contaminated soil containing material which is not suited to bioremediation. This volume represents an estimate and is subject to change based on field sampling.
· Off-site treatment and disposal of approximately 19,500 drums of filtercakes and lab wastes containing high levels of organic contaminants. The number of drums that will require treatment prior to disposal is an estimate subject to change based on field sampling.
· Off-site disposal of approximately 12,350 drums of solid waste and other material containing low levels of organic contaminants.
· Installation of caps and barrier walls in areas of the site where the Cohansey Yellow Clay is present. This perched water management system will prevent the movement of contaminants from the clay into the underlying Primary Cohansey Aquifer. The cap in the Filtercake Disposal Area will also address the potential direct contact risks associated with the surface soils in this area.
· Implementation of an in-situ bioremediation system in the Equalization Basins to address contamination below the groundwater table.
· Stabilization of portions of the Lime Sludge Disposal Area that do not meet leaching standards.
· Establishment of deed restrictions to regulate the use of certain areas of the site and prevent intrusive activities in areas that are capped.
· Optimization of the Groundwater Extraction and Recharge System implemented as part of the first operable unit response action.
· Appropriate environmental monitoring to ensure the effectiveness of the Selected Remedy.
C. 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 68 (record review). The SOW and/or related work plans shall be modified in accordance with final resolution of the dispute.
D. 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.
E. Nothing in this Paragraph shall be construed to limit EPA's authority to require performance of further response actions as otherwise provided in this Consent Decree.
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 Plaintiffs that compliance with the work requirements set forth in the SOW and the Work Plans will achieve the Performance Standards.
16. Settling Defendants shall, prior to any off-Site shipment of Waste Material generated as a consequence of the Work 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 are 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 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 16.a as soon as practicable after the award of the contract and before the Waste Material is actually shipped.
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