IIIIIIII IIIIIIIIIIII US EPA RECORDS CENTER REGION 5 · B. Right of Access. Mary HoUinrake P.-4/120 11:57flM Kent Cnty MI Rgstr09/26/2014 SEAL 1. Right of Access. Grantor grants and

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US E P A RECORDS CENTER REGION 5

Mary Hoilinrake P:1/120 11:57AM Kent Cnty MI Rgstr09/26/2014 SEAL 476538

ACCESS AND ENFORCEMENT EASEMENT

This transfer is exempt from County and State transfer taxes pursuant to MCL 207.505(a) and MCL 207.526(a), respectively.

Butterworth Landfill Superfund Site, Kent County, Michigan U.S. EPA Site ID Number MID062222997 MDEQ Site No. 41000008 MDEQ Reference No. RC-RRD-201-13-10

This Access and Enforcement Easement ("Easement") is made on September "23, 2014 by the Grantor, the City of Grand Rapids, whose address is 300 Monroe Avenue, Grand Rapids, Michigan 49503 for the benefit of The United States of America, care of the Regional Administrator of the United States Environmental Protection Agency Region 5 ("U.S. EPA"), whose address is 77 West Jackson Avenue, Chicago, Illinois 60604; The State of Michigan, care of the Michigan Department of Environmental Quality ("MDEQ"), whose address is Constitution Hall, 525 West Allegan Street, P.O. Box 30473, Lansing, Michigan 48909-7973 and The Settling Parties identified on Exhibit 1 to this Easement (collectively "Grantees").

RECITALS

i. The Grantor is the title holder of the real property located in Kent County, Michigan and legally described and shown in the survey in Exhibit 2 attached hereto ("Property"),

ii. The purpose of this Easement is to create restrictions that run with the land in the Grantor's real property rights; to protect the public health, safety, and welfare, and the environment; to prohibit or restrict activities that could result in unacceptable exposure to environmental contamination present at the Property; and to grant access to the Grantees to monitor and implement response activities on the Property required under the Consent Decree between The United States and City of Grand Rapids, et al. lodged on May 21, 1999 ("Decree").

iii. The Property comprises part of the Butterworth Landfill Superfund Site, located on Butterworth Avenue in Grand Rapids, Michigan ("the Site"). The Site encompasses approximately 170 acres, and its approximate boundaries are the Grand River on the south, Interstate 196 on the west, Butterworth Street on the north, and the Consumers Energy Company substation on the east, and is depicted generally on Exhibit 3 to this Declaration. The Site was the subject of an enforcement action by the U.S. E P A under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §

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9601, et seq. ("CERCLA"). U.S. E P A has determined that the Site contains hazardous substances and is a "facility" under C E R C L A . The MDEQ has determined that the Property is a "facility" as defined by Michigan's Natural Resources and Environmental Protection Act's (NREPA) Part 201, Environmental Remediation, 1994 PA 451, MCL 324.20101 et seq. Contaminants of concern in Site soils include arsenic, beryllium, chromium, polynuclear aromatic hydrocarbons, polychlorinated biphenyls ("PCBs") and dieldrin; contaminants of concern in Site groundwater are antimony, arsenic, 1,1-dichloroethane, vinyl chloride, bis (2-ethyl hexyl) phthalate and PCBs . In 1983, U.S. E P A listed the Site on the National Priorities List which it promulgated pursuant to Section 105 of C E R C L A .

iv. Certain of the Settling Parties completed a Remedial Investigation and Feasibility Study to determine the nature and extent of any environmental impact at the Site and to evaluate remedial action alternatives. In September 1992, the U.S. E P A issued a Record of Decision ("ROD") for the Site in which the U.S. E P A selected the remedy for the Site. In 1999, the Settling Parties and others entered into the Decree with U.S. E P A for the performance of the remedy selected by U.S. E P A for the Site. The Decree was lodged on May 21, 1999, with the United States District Court for the Western District of Michigan, Southern Division, in the case of United States of America v. City of Grand Rapids, et al., Civil Action No. 1:99-CV-388. Under Section VI ofthe Decree, the Settling Parties were required to perform the remedy as defined by the Decree (the "Work"), which included the placement of a soil cover on the Property. Under Paragraphs 13 and 17 of the Decree, U.S. E P A has reserved the right to modify the Work and has retained the authority to select and require performance of further response actions at the Site. The Decree is attached as Exhibit 4 to this Easement.

v. The restrictions contained in this Easement are based upon information available at the time the Easement was issued. Future changes in the environmental condition of the Property or changes in the applicable cleanup criteria; the discovery of new environmental conditions at the Property or the use of the Property in a manner inconsistent with the restrictions described herein may result in this Easement not being protective of public health, safety, and welfare, and the environment. Information pertaining to the environmental conditions at the Property and Response Activities undertaken at the Site is on file with the U.S. EPA.

vi. Prospective purchasers of the Property should undertake appropriate due diligence prior to acquiring or using this Property, and undertake appropriate actions to comply with the applicable requirements of Section 20107a of Part 201, MCL 324.20107a.

DECLARATION

For valuable consideration of less than $100.00, the receipt of which is hereby acknowledged, the Grantor, on behalf of itself, its successors and assigns declares that the Property shall be subject to the restrictions set forth below, for the benefit of the Grantees, and grants and conveys to the Grantees, and their assigns and representatives, the perpetual right to enforce said restrictions. The Grantor further, on behalf of itself, its successors and assigns does grant and convey to the Grantees and their representatives a right of access ofthe nature, character, and purposes set forth below with respect to the Property, and the right to enforce said right of access.

2

Restrictions on Land Use.

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1. The Property shall not be used for residential purposes, and may only be used in a manner that has received the U.S. EPA 's prior approval.

2. Prohibited activity at the Property includes any activity that may interfere with or adversely affect the integrity or protection of the Work or any other remedial action, operation and maintenance, monitoring, or other measures undertaken by any party at the direction of U.S. EPA .

3. The following activities are also prohibited on the Property:

(a) In addition to the prohibitions recited in City of Grand Rapids Ordinance No. 2002-28, groundwater well installation and groundwater use within the Property boundary for all domestic, commercial, and industrial uses, except groundwater monitoring wells necessary to implement the Work, as approved by U.S. E P A in accordance with Section XI of the Decree.

(b) Construction of groundwater-fed impoundments within the Property boundary.

(c) The excavation of soil on the Property beyond the top eighteen (18) inches within the limits of waste, unless approved by U.S. E P A in accordance with Section XI of the Decree and personnel are properly trained according to 29 C F R 1910.120. When excavation penetrates the cap and occurs within the limits of waste, Grantor shall require the cap to be restored to its original specifications within 72 hours of Grantor's receipt of actual notice of the excavation, unless U.S. E P A or its successor identifies a longer period. . Excavation within the Property boundary and outside the limits of waste will be limited to the unsaturated zone. Excavation outside the limits of waste and within the saturated zone are prohibited unless U.S. E P A first approves a workplan and schedule for such excavation in accordance with Section XI of the Decree, and personnel are properly trained according to 29 C F R 1910.120.

(d) Installation, construction, removal or use of any buildings, wells, pipes, roads, ditches or any other structures within the Property boundary except as necessary to implement the Work or otherwise approved by the U.S. EPA. in accordance with procedures contained in Section XI of the Decree. In the event Grantor needs to perform emergency work on the Property, including but not limited to work to address electric line damage, grantor shall, where practicable, provide EPA with verbal advance notice of the Work, and provide U.S. E P A with written follow-up notice of the Work within 72 hours of completion of the Work.

(e) With respect to its activities on the Property, the Grantor shall manage all soils, media and/or debris located on the Property in accordance with the applicable requirements of Section 20120c of Part 201, MCL 324.20120c and Part 111, Hazardous Waste Management, of the NREPA, MCL 324.11101 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the administrative rules promulgated thereunder; and all other relevant state and federal laws and regulations.

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B. Right of Access. Mary HoUinrake P.-4/120 11:57flM Kent Cnty MI Rgstr09/26/2014 SEAL

1. Right of Access. Grantor grants and conveys to Grantees and their agents, consultants and contractors, subject to the notice and purpose requirements and for the activities set forth below, an access easement on, over, under and across the Property.

2. Scope of Access. Subject to Section 104(a) and (b) of C E R C L A (42 U.S.C. § 9604 (a)-(b), the scope of this access right shall include the right to enter and traverse the Property, upon a minimum of seventy-two (72) hours advance notice to Grantor, for the purpose of conducting activity required by the Decree, including without limitation, the following activities:

(a) Implementing, operating or maintaining the Work.;

(b) Monitoring the Work;

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

(d) Conducting investigations relating to contamination at or near the Site;

(e) Obtaining samples;

(f) Assessing the need for, planning, or implementing additional response actions at or near the Site;

(g) Inspecting and copying records, operating logs, contracts, or other documents maintained or generated by the Settling Parties or their agents, consistent with Section XXIV (Access to Information);

(h) Assessing the Settling Parties' compliance with the Decree;

(i) Determining whether the Site or other Property is being used in a manner that is prohibited or restricted, or that may need to be prohibited or restricted, by or pursuant to the Decree; and

G) Other activities reasonably necessary and incidental to the implementation of the foregoing activities.

C. Term. This Easement shall run with the land and shall be binding on the Grantor and successors in title.

D. Enforcement. Grantees may enforce the restrictions and right of access set forth in this Easement by legal action in a court of competent jurisdiction. Notwithstanding any provision in this Easement, the U.S. E P A and the State of Michigan retain any access authorities and rights, any rights to require different land and water use restrictions, including enforcement related thereto, that may exist under C E R C L A , the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., Michigan Part 201, and any other applicable state or federal law or regulation.

E. Modification/Release/Rescission. The Grantor may request in writing to the U.S. EPA, with a copy to MDEQ, modifications to, or release or rescission of, this Easement. This Easement may be modified, released, or rescinded only with the written approval of the

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Grantees. Any approved modification to, or release or rescission of, this Easement shall be filed with the appropriate county Register of Deeds by the Grantor and a certified copy shall be returned to the U.S. EPA, with a copy to MDEQ and the Settling Parties.

F. Notification of Recording. Grantor shall provide a copy of this Easement to Grantees within 60 days of the return of a stamped copy of the easement to Grantor from the Kent County Register of Deeds.

G. Transfer of Interest. The Grantor shall provide notice at the addresses provided in this document to the U.S. EPA, the MDEQ and the Settling Parties of the Grantor's intent to transfer any interest in the Property, or any portion thereof, at least fourteen (14) business days prior to consummating the conveyance. A conveyance of title, easement, or other interest in the Property shall not be consummated by the Grantor without adequate and complete provision for compliance with the terms and conditions of this Easement, the applicable provisions of the Decree, and the applicable provisions of Section 20116 of Part 201, MCL 324.20116.

H. Notices. Any notice, demand, request, consent, approval, or communication that is required to be made or obtained under this Easement shall be made in writing; include a statement that the notice is being made pursuant to the requirements of this Easement; include the MDEQ Site ID number and reference number; and shall be served either personally, or sent via first class mail, postage prepaid, as follows:

Forthe U.S. E P A :

Richard Karl Director Superfund Division (SR-6J) U.S. Environmental Protection Agency, Region 5 77 West Jackson Blvd. Chicago, IL 60604

with a copy to:

Thomas M. Williams Office of Regional Counsel (C-14J) U.S. Environmental Protection Agency, Region 5 77 West Jackson Blvd. Chicago, IL 60604

Forthe MDEQ:

Robert Wagner Chief Remediation and Redevelopment Division Michigan Department of Environmental Quality P.O. Box 30426 Lansing, Ml 48909-7926

For the Settling Parties:

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Dennis J . Donohue Warner Norcross & Judd LLP 900 Fifth Third Building 111 Lyon Street, NW Grand Rapids, Ml 49503

John A. Ferroli Dykema Gossett PLLC 300 Ottawa Avenue, NW Suite 700 Grand Rapids, Ml 49503

I. Miscellaneous.

(a) Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the United States as to the obligations referred to in the Decree and by the laws and regulations of the State of Michigan for all other purposes hereunder (without reference to choice of laws and principles thereof). The right to enforce the conditions and restrictions in this Easement are in addition to other rights and remedies that may be available, including, but not limited to, administrative and judicial remedies under C E R C L A or Part 201 of the NREPA.

(b) Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed to achieve the purpose of this Easement and the policy and purpose of C E R C L A and the land use restrictions and prospective limitations required by Part 201. If any provision of this Easement is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.

(c) Severability. If any provision of this Easement is held to be invalid by any court of competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provision hereof, and all other provisions shall continue unimpaired and in full force and effect.

(d) Entire Agreement This Easement and its attachments and appendices supersedes all prior discussions, negotiations, understandings, or agreements between the undersigned relating to the matters addressed herein, all of which are merged herein.

(e) Successors. A conveyance of title, easement, or other interest in the Property shall not be consummated by the Owner without adequate and complete provision for compliance with the terms of this Easement. A copy of this Easement shall be provided to all future owners, heirs, successors, lessees, easement holders, assigns, and transferees by the person transferring the interest. The Easements, terms, conditions and restrictions in this Declaration shall be binding upon, and inure to the benefit of, the Grantor and Grantees and their agents, successors, lessees and assigns and any subsequent title holders, occupants or other persons acquiring an interest in the Property or some relevant sub-portion of the Property, and their respective agents, successors and assigns. The rights, but not the obligations or authorities, ofthe U.S. E P A are freely assignable to any public entity, subject to the notice to the

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Grantor, its successors and assigns, as their interests appear in the public title records kept and maintained by the Kent County Register of Deeds.

J. Exhibits. The following exhibits are incorporated into this Easement:

Exhibit 1 - List of Settling Parties

Exhibit 2 - Legal description of Property and Survey

Exhibit 3 - General Depiction of Butterworth Landfill Site

Exhibit 4 - Consent Decree

K. Authority to Execute Restrictive Easement and Right of Access. The undersigned person executing this Easement represents and certifies that he or she is duly authorized and has been empowered to execute this Easement.

IN WITNESS W H E R E O F , the parties hereto have set their hands thereto as of the day first above written. ,

By:

Attest: /^.fO!/W Darlene O'Neal, City Clerk

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STATE OF MICHIGAN

COUNTY OF KENT


) SS.

)

On this ^ 3 day of S-ep4cw\b-er , 2014, before me, a Notary Public in and for said County, personally appeared the above named George K. Heartwell, Mayor ofthe City of Grand Rapids, to me known to be the same person described in and who executed the within instrument, and who has acknowledged the same to be his free act and deed.

Notary Public, My commission expires:

County, Michigan

JANE BUSH Notary Public, State of MiShigift

County of Kent I My Commission Expires July 30, ZQZO

This Document Prepared By: Dennis J . Donohue Warner Norcross & Judd LLP 111 Lyon Street, N.W. 900 Fifth Third Building Grand Rapids, Michigan 49503 616-752-2192

11242772

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EXHIBIT 1

Allied Waste Systems, Inc.

City of Grand Rapids, Michigan

Consumers Energy Company

C S X Transportation, Inc.

Metromedia International, Inc.

Pactiv Corporation

Steelcase Inc.

Waste Management of Michigan, Inc.

ElectroLux Home Products, Inc.

Wolverine World Wide, Inc.

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EXHIBIT 2

Parcel 1:

A parcel of land 208.8 feet East and West by 626.4 feet North and South in the Northwest corner of that part of the East 5/8 of the East 1/2 of the Northwest 1/4 of Section 35, Town 7 North, Range 12 West, City of Grand Rapids, Kent County, Michigan, lying South ofthe railroad right of way of The Penn Central Corporation, excepting therefrom that part thereof lying Northerly of the Southerly line of Lot 2 of Cusick Bros & Thomasma Addition to the City of Grand Rapids, as said Southerly line of said Lot is extended in a Westerly direction to the West line of said above described land.

Parcel 2:

That part ofthe West 1155 feet ofthe Northwest fractional 1/4 of Section 35, Town 7 North, Range 12 West, City of Grand Rapids, Kent County, Michigan, tying Southerly of a line 66 feet Southerly of and parallel with the Southerly line of L.S. & M.S. Railroad Co. right-of-way and Easterly ofthe Easterly right-of-way line of Highway M-21 and Northerly of a line described as follows: Commencing at a point on the West line of said Section which is 510.58 feet South of the Northwest corner of said Section, running thence S 62 degrees 22 minutes 45 seconds E to a point on the East line of said West 1155 feet of the Northwest fractional 1/4.

Parcel 3;

East 1/2 of East 1/2 of Northwest fractional 1/4 of Section 35, Town 7 North, Range 12 West, City of Grand Rapids, Kent County, Michigan, except the North 1560 feet thereof, also except commencing at a point on West line of East 1/4 of East 1/2 of Northwest fractional 1/4 of said Section, 1560 feet South of North line of said Section, thence West parallel with said North line of Section 330 feet to a point 33 feet Northerly of Northeast comer of Lot 98, Cusick Brothers and Thomasma Addition, thence Southerly along East line of said Addition 417.42 feet, thence East parallel with said North line of Section 35, 417.42 feet, thence Northerly 417.42 feet to a point 87.42 feet East of beginning, thence West 87.42 feet to beginning.

Parcel 4:

That part ofthe West 1155 feet ofthe Northwest fractional 1/4 of Section 35, Town 7 North, Range 12 West, City of Grand Rapids, Kent County, Michigan, lying Easterly ofthe Easterly Right-Of-Way line of Highway M-21 and Southerly of a line described as follows: Commencing at a point on the West line of said Section which is 659.51 feet South of the Northwest corner of said section, running thence S 62 degrees 22 minutes 45 seconds E to a point on the East line of said West 1155 feet of the Northwest fractional 1/4. Also, that part of the Southwest fractional 1/4 of Section 35, Town 7 North, Range 12 West, lying North ofthe Grand River. Except the West 2 rods thereof.

Parcel 5;

The W 1/2 of E 1/2 of W 1/2 of E 1/2 of NW Fractional 1/4 of Sec. 35, T7N, R12W, City of Grand Rapids, Kent County, Michigan and W 1/2 of W 1/2 of E 1/2 of NW Fr'l 1/4 of Sec. 35, T7N, R12W, also E 1/4 of E 1/2 of W 1/2 of NW Fr'l 1/4 of Sec. 35, T7N, R12W, except that part lying N of a line 132 feet S of S'ly line, LS & MSRR Co's Right of Way (34 acres). Except part of NW 1/4 of Sec. 35, T7N, R12W, commencing at NW corner of said section, thence S 659.61 feet along W line of said section, thence S 62 degrees 22 minutes 45 seconds E 1,315.88 feet to a point on W line of E 1/8 of W 1/2 of NW 1/4 of said section to the point of

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EXHIBIT 2

beginning of this description; thence continuing S 62 degrees 22 minutes 45 seconds E 646.34 feet, thence S 88 degrees 33 minutes 15 seconds E 100 feet to a point on W'ly line of Cusick Bros & Thomasma Addition, said point being 1,527 feet S'ly of N line of said section and measured along W'ly line of said Plat, thence N 1 degree 1 minute 7 seconds W along W'ly line of said Plat 132 feet, thence N 88 degrees 33 minutes 15 seconds W 63.57 feet, thence N 62 degrees 22 minutes 45 seconds W 686.53 feet to a point on W line of E 1/8 of W 1/2 of NW 1/4 of said section, thence S 0 degrees 38 minutes 25 seconds E along said W line of E 1/8 of W 1/2 of NW 1/4 of said section 149.8 feet to beginning.

Together with easements reserved in Liber 1927, Page 1234.

Parcel 6:

Lots 106 through 110, Cusick Bros. & Thomasma Addition to the City of Grand Rapids, Kent County, Michigan, as recorded in Liber 19 of Plats, Page 31, including that portion of vacated Ives Avenue located to the West of and adjacent to Lot 106 through Lot 110 extended.

Together with the easement reserved in Liber 1932, Page 1024.

EXHIBIT 4

IN T H E UNITED S T A T E S DISTRICT C O U R T F O R T H E W E S T E R N DISTRICT OF M I C H I G A N

S O U T H E R N DIVISION

UNITED S T A T E S OF A M E R I C A ,

Plaintiff,

v.

A L L I E D W A S T E S Y S T E M S , INC., et al.,

Defendants.

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C I V I L A C T I O N N O .

C O N S E N T D E C R E E

United States v. Allied Waste Systems, et.al.

Butterworth #2 Landfill Superfund Site

CONSENT DECREE

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T A B L E OF CONTENTS

BUTTERWORTH #2 L A N D F I L L R A CONSENT DECREE

I. B A C K G R O U N D

II. JURISDICTION

III. PARTIES BOUND

IV. DEFINITIONS

V. G E N E R A L PROVISIONS

VI. PERFORMANCE OF THE W O R K B Y SETTLING DEFENDANTS . .

VII. R E M E D Y REVIEW

VIII. OUALITY ASSURANCE. SAMPLING, and D A T A A N A L Y S I S

IX. ACCESS A N D INSTITUTIONAL CONTROLS

X . REPORTING REQUIREMENTS

XI . EPA A P P R O V A L OF PLANS A N D OTHER SUBMISSIONS

XII. PROJECT COORDINATORS

XIII. A S S U R A N C E OF ABILITY TO COMPLETE WORK

XIV. CERTIFICATION OF COMPLETION

X V . ' E M E R G E N C Y RESPONSE

X V I . P A Y M E N T OF RESPONSE COSTS

XVII. INDEMNIFICATION AND INSURANCE

x v i n . FORCE M A J E U R E

XIX. DISPUTE RESOLUTION :

16

United States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE

XXI

X X I .

XXII .

XXIII.

X X I V .

X X V .

X X V I .

X X V I I .

XXVIII .

X X I X .

X X X .

X X X I .

X X X I I .

XXXIII .

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STIPULATED PENALTIES ..". . . . . . . . .".

COVENANTS NOT TO SUE B Y PLAINTIFF-

COVENANTS B Y SETTLING DEFENDANTS

-59

-64

-68

EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION - 7 0 -

ACCESS TO INFORMATION - 72 -

RETENTION OF RECORDS - 73 -

NOTICES A N D SUBMISSIONS - 7 5 -

EFFECTIVE DATE . 7 7 .

RETENTION OF JURISDICTION . 7 7 .

APPENDICES - 77 .

COMMUNITY RELATIONS . 78 -

MODIFICATION - 7 8 -

LODGING A N D OPPORTUNITY FOR PUBLIC C O M M E N T - 79 -

SIGNATORIES/SERVICE .79 .


CONSENT DECREE

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF A M E R I C A Plaintiff,

v.

ALLIED WASTE SYSTEMS, INC., et al.,

Defendants.

CIVIL ACTION NO.

CONSENT DECREE FOR CONDUCTING R E M E D I A L ACTION

I. B A C K G R O U N D

The United States of America ("United States"), on behalf of the Administrator of the

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

pursuant to Sections 106 and 107 ofthe Comprehensive Environmental Response,

Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607.

A . The United States in its complaint seeks, inter alia, the performance of studies

and response work by the defendants at the Site consistent with the National Contingency Plan,

40 C.F.R. Part 300 (as amended) ("NCP").

B. In accordance with the NCP and Section 121(f)(1)(F) of C E R C L A , 42 U.S.C.

§ 9621(f)(1)(F), EPA notified the State of Michigan (the "State") on December 12, 1997 of

negotiations with potentially responsible parties regarding the implementation ofthe remedial

action for the Site, and EPA has provided the State with an opportunity to participate in such

negotiations and be a party to this Consent Decree.

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C. In accordance with Section 122(j)(T) of CERCLA, 42 U.S.C. § 9622(j)(l), EPA

notified the Federal Natural Resource Trustee prior to negotiations with potentially responsible

parties regarding the release of hazardous substances that may have resulted in injury to the

natural resources under Federal trusteeship and encouraged the trustee(s) to participate in the

negotiation of this Consent Decree.

D. The Defendants that have entered into this Consent Decree do not admit any

liability to the Plaintiff arising out ofthe transactions or occurrences alleged in the complaint,

nor do they acknowledge that the release or threatened release of hazardous substances at or from

the Site constitutes an imminent or substantial endangerrnent to the public health or welfare or

the environment.

E. Pursuant to Section 105 of C E R C L A , 42 U.S.C. § 9605, E P A placed the Site on

the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the

Federal Register on December 30, 1982.

F. In response to a release or a substantial threat of a release of hazardous

substances at and from the Site, on June 27, 198.6 E P A entered into a Consent Decree with five

PRPs, the City of Grand Rapids, General Motors Corporation, Michigan Waste Systems, Wickes

Manufacturing Company and Organic Chemicals Inc., to conduct a Remedial Investigation and

Feasibility Study ("RI/FS") pursuant to 40 C.F.R. § 300.430. The RI/FS was completed in

December 1991.

G. Pursuant to Section 117 of C E R C L A , 42 U.S.C. § 9617, E P A published notice of

the completion of the FS and of the proposed plan for remedial action in May 1992, in a major

Dili ted States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE 2 -

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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.

H. In 1988 the surface soil/test pit assay conducted during the Remedial Investigation

("RI") identified the existence of polychlormated biphenyls ("PCBs") at levels of 800 mg/kg and

chromium at levels of 43,000 mg/kg at one location at the Site. Consequently, on October 26,

1989, EPA entered into an Administrative Order by Consent with Michigan Waste Systems, the

City of Grand Rapids, General Motors Corporation, Wickes Manufacturing Company and

Consumers Power Company to remove approximately 1100 tons of PCB contaminated soils and

material. The PCB contaminated soils were disposed of off-site in accordance with applicable

state and federal laws. The removal action was completed in June 1990.

I. The decision by E P A on the remedial action to be implemented at the Site is

embodied in a final Record of Decision ("ROD"), executed in September, 1992, which the State

had a reasonable opportunity to review and comment. Notice of the final plan was published in

accordance with Section 117(b) of C E R C L A , 42 U.S.C. § 9617.

J. Pursuant to an Administrative Order on Consent dated February 1993, the same

five PRPs who conducted the removal action also drafted the Remedial Design for the

implementation of the ROD remedy.

K. These same five PRPs also stockpiled cover material on the Site to be used in

constructing the cap required by the ROD.

Uni ted' States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE - 3

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L. On October 23, 1998, EPA issued an Explanation of Significant Differences

("ESD") to the ROD amending the Remedial Action ("RA") by incorporating State mixing zone-

based groundwater-surface water interface ("GSI") criteria as Alternate Concentrate Limits

("ACLs") for groundwater and providing for the construction of a soil cap in the Radio Tower

and Station Building Area ("RTSBA"). An amendment to the ESD was issued on December 23,

1998. Notice of the ESD has been published in local newspapers and has been made a part of the

administrative record.

M . Based on the information presently available to EPA, EPA believes that the. Work

will be properly and promptly conducted by the Settling Defendants if conducted in accordance

with the requirements of this Consent Decree and its appendices.

N . Solely for the purposes of Section 1130 of C E R C L A , the R A selected by the

ROD and the Work to be performed by the Settling Defendants shall constitute a response action

taken or ordered by the President.

0. • EPA issued Special Notice letters to 81 PRPs on January 20, 1998 and

April 16, 1998 requesting them to perform the R A .

P. As a result of extended negotiations, EPA has agreed to "carve out" a portion of

the Remedial Action amounting to a minimum of $2 million of activities that would otherwise be

part of the Work required to be undertaken by the Settling Work Defendants.

Q. EPA presently intends that the carve out activities will be performed by those

parties who received Special Notice Letters from EPA and are not participating in this Consent

Decree and that those parties will also reimburse EPA for Future Response Costs.


CONSENT DECREE - 4 -

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R.' The participating parties to the 1986 Consent Decree for the RI/FS and the 1990

A O C for the Design, have paid past response costs incurred by the United States through

December 1995.

S. 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.

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has

personal jurisdiction over the Settling Defendants. Solely for the purposes of this Consent

Decree and the underlying complaint, Settling Defendants waive all objections and defenses that

they may have to jurisdiction of the Court or to venue in this District. Settling Defendants shall

not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce

this Consent Decree.

III. PARTIES BOUND

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

Settling Defendants and their successors and assigns. Any change in ownership or corporate

status of a Settling Defendant including, but not limited to, any transfer of assets or real or



Illlllllllllllllllilfi 20140926-0080117

personal property, shall in no way alter such Settling Defendant's responsibilities under this

Consent Decree.

3. Settling Work Defendants shall'provide a copy of this Consent Decree to each

contractor hired to perform the Work required by this Consent Decree and to each person

representing any Settling Defendant with respect to the Site or the Work and shall condition all

contracts entered into hereunder upon performance of the Work in conformity with the terms of

this Consent Decree. Settling Work Defendants or their contractors shall provide written notice

ofthe Consent Decree to all subcontractors hired to perform any portion of the Work required by

this Consent Decree. Settling Work Defendants shall nonetheless be responsible for ensuring

that their contractors and subcontractors perform the Work contemplated herein in accordance

with this Consent Decree. With regard to the activities undertaken pursuant to this Consent

Decree, each contractor and subcontractor shall be deemed to be in a contractual relationship

with the Settling Work Defendants within the meaning of Section 107(b)(3) of C E R C L A , 42

U.S.C. § 9607(b)(3).

IV. DEFINITIONS

4. Unless otherwise expressly provided herein, terms used in this Consent Decree

which are defined in C E R C L A or in regulations promulgated under C E R C L A shall have the

meaning assigned to them in C E R C L A 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:

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" C E R C L A " shall mean the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 et seq.

"Consent Decree" shall mean this Decree and all appendices attached hereto (listed in

Section XXIX) . In the event of conflict between this Decree and any appendix, this Decree shall

control.

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

day" shall mean a day other than a Saturday, Sunday, or Federal holiday. In computing any

period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday,

or Federal holiday, the period shall run until the close of business of the next working day.

"EPA" shall mean the United States Environmental Protection Agency and any successor

departments or agencies of the United States.

"ESD" shall mean the Explanation of Significant Differences approved by and issued by

E P A on October 23, 1998, and as amended on December 23, 1998, allowing the implementation

in the Remedial Action ofthe State mixing zone-based GSI criteria as the A C L s for groundwater

and the construction of a soil cap over the 33-acre portion of the Site know as the Radio Tower

and Station Building Area (RTSB)T The ESD is attached as Appendix C.

"Future Response Costs" shall mean all costs, including, but not limited to, direct and

indirect costs, that the United States incurs in reviewing or'developing plans, reports and other

items pursuant to this Consent Decree, verifying the Work, or otherwise implementing,

overseeing, or enforcing this Consent Decree, including, but not limited to, payroll costs,

contractor costs, travel costs, laboratory costs, the costs incurred pursuant to Sections VII, IX


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(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), X V , and Paragraph 85 of Section X X 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. § 9607(a).

"Matters Addressed" in this settlement are all response actions taken or to be taken and all

response costs incurred'or to be incurred by the United States or any other person with respect to

the Site. The "matters addressed" in this settlement do not include those response costs or

response actions as to which the United States has reserved its rights under this Consent Decree

(except for claims for failure to comply with this Decree), in the event that the United States

asserts rights against Settling Defendants coming within the scope of such reservations.

"MDEQ" shall mean the Michigan Department of Environmental Quality and any

successor departments or agencies ofthe State.

"Municipal Sewage Sludge" shall mean any solid, semi-solid, or liquid residue removed

during the treatment of municipal waste water or domestic sewage, and may include residue

removed, all or in part, during the treatment of wastewater from manufacturing or processing

operations, provided that such residue has essentially the same characteristics as residue removed

during the treatment of domestic sewage.

"Municipal Solid Waste" shall mean household waste and solid waste collected from non

residential sources that is essentially the same as household waste. While the composition of


CONSENT DECREE - 8

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such wastes may vary considerably, municipal solid waste generally is composed of large

volumes of non-hazardous substances (e.g. yard waste, food waste, glass, and aluminum) and can

contain small amounts of other wastes as typically may be accepted in R C R A Subtitle D

landfills.

"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous

Substances Pollution Contingency Plan promulgated pursuant to Section 105 of C E R C L A ,

42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.

"Operation and Maintenance" or "O & M " shall mean all activities required to maintain

the effectiveness of the Remedial Action as required under the Operation and Maintenance Plan

approved or developed by EPA pursuant to this Consent Decree and the Statement of Work

(SOW).

"Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral

or an upper case letter.

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

"Performance Standards" shall mean the cleanup standards and other measures of

achievement of the goals of the Remedial Action, set forth in the "Selected Remedy" Section of

the ROD and Section II ofthe SOW.

"Plaintiff shall mean the United States.

"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C.

§§ 6901 et seq. (also known as the Resource Conservation and Recovery Act).


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"Record of Decision" or "ROD" shall mean the EPA Record of Decision relating to the

Butterworth Landfill Site signed in September of 1992, by the Regional Administrator, EPA

Region 5, or his/her delegate, as modified by the October 23, 1998 ESD (as amended on

December 23, 1998), and all attachments thereto. The ROD is attached as Appendices A and C.

"Remedial Action" or "RA" shall mean those activities, except for Operation and

Maintenance, to be undertaken by the Settling Defendants to implement the ROD, the SOW, and

the final Remedial Design and Remedial Action Workplan and other plans approved by EPA.

"Remedial Action Workplan" or "RA Work Plan" shall mean the document developed

pursuant to Paragraph 12 of this Consent Decree and approved by EPA, and any amendments

thereto.

"Remedial Design" shall mean, the Amended Remedial Design Project Plan ("ARDPP")

and any modifications made to the ARDPP in accordance with the ESD and this Consent Decree.

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

"Settling Cash Defendants" shall mean those potentially responsible parties listed on

Appendix E.1.

"Settling Defendants" shall mean Settling Work Defendants, Settling Owner Defendants

and Settling Cash Defendants.

"Settling Owner Defendants" shall mean those Settling Defendants listed in

Appendix E.2.

"Settling Work Defendants" shall mean those Settling Defendants listed in Appendix E.3.

United States v. Allied Waste Systems, . et. a l .

Butterworth #2 Landfill Superfund Site


IIIIIIIIIIII IIIIIIIIII 111 llil 20140926-0080117


"Site" shall mean the Butterworth #2 Landfill Superfund Site, encompassing

approximately 180 acres, and its approximate boundaries are the Grand River on the south,

Interstate 196 on the west, Butterworth Street on the north and a Consumers Power substation on

the east, in Grand Rapids, Michigan and depicted generally on the map attached as Appendix D.

"State" shall mean the State of Michigan.

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

the Remedial Action, and Operation and Maintenance at the Site, as set forth in Appendix B to

this Consent Decree and any modifications made in accordance with this Consent Decree.

"Supervising Contractor" shall mean the principal contractor retained by the Settling

Defendants to supervise and direct the implementation ofthe Work under this Consent Decree,

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

"Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of

CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33), 42

U.S:C. § 9601(33); (3) any "solid waste" under Section 1004(27) of RCRA, 42 U.S.C.

§ 6903(27); and (4) any "hazardous substance" under Part 201, Section 101(l)(t) of Michigan

Act 451, MCL § 324.20101(l)(t).

"Work" shall mean all activities Settling Work Defendants are required to perform under

this Consent Decree, except those required by Section X X V (Retention of Records) and those

portions of the construction and O & M of the R A that EPA determines shall be performed by

non-settling PRPs in accordance with Paragraph 12.c. However, as set forth in Paragraph 6(c),


CONSENT DECREE - 11

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in the event this portion of the R A is not performed by the non-settling PRPs, E P A reserves the

right to require Settling Work Defendants to complete it. Should EPA require Settling Work

Defendants to perform this portion ofthe RA, Settling Work Defendants shall complete it as

Work they are required to perform under the Consent Decree.

V . GENERAL PROVISIONS

5. Objectives of the Parties

The objectives ofthe Parties in entering into this Consent Decree are to protect public

health, welfare and the environment at the Site by the design and implementation of response

actions at the Site by the Settling Defendants and to resolve the claims of Plaintiff against

Settling Defendants as provided in this Consent Decree.

6. Commitments by Settling Defendants

a. Settling Cash Defendants shall make payments to Settling Work

Defendants in accordance with Section X V I of this Consent Decree in contribution toward

Settling Work Defendants' performance of the Work, and are subject to those provisions and

requirements that reference Settling Cash Defendants, including Section X X V (Retention of

Records); Subparagraph 71.e of Section XX(Stipulated Penalties); Subparagraph 54.a of Section

X V I (Payment of Response Costs); and Section X X I (Covenant Not to Sue by Plaintiff).

b. Settling Work Defendants shall finance and perform the Work in

accordance with this Consent Decree, the ROD, the SOW, the Remedial Design and all work

plans and the standards, specifications, and schedules set forth therein or developed by Settling

Work Defendants and approved by EPA pursuant to this Consent Decree.



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c. Settling Work Defendants wi l l hot be required to perform that portion of

the R A designated by the United States pursuant to Paragraph 12.c. unless non-settling PRPs fail

toperform the designated portion of the RA. In that event, EPA reserves the right to require

Settling Work Defendants to complete all such requirements. This provision shall not be subject

to Section XIX, "Dispute Resolution."

d. The obligations of Settling Work Defendants to finance and 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 Work Defendants to implement the requirements of this

Consent Decree, the remaining Settling Work Defendants shall complete all such requirements.

7. Compliance With Applicable Law

AH activities undertaken by Settling Work Defendants pursuant to this Consent Decree

shall be performed in accordance with the requirements of all applicable federal and state laws

and regulations. Settling Work Defendants must also comply with all applicable or relevant and

appropriate requirements of all Federal and state environmental laws as set forth in the ROD,

SOW and Remedial Design. The activities conducted pursuant to this Consent Decree, i f

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

8. Permits

a. As provided in Section 121 (e) of C E R C L A and Section 300.400(e) ofthe

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



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requires a federal or state permit or approval, Settling Work Defendants shall submit timely and

complete applications and take all other actions necessary to obtain all such permits or approvals.

b. The Settling Work 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 Settling Owner

Defendants that is located within the Site, within 30 days after the entry of this Consent Decree,

the Settling Owner Defendant shall submit to EPA for review and approval a notice to be filed

with the Kent County Register of Deeds, State of Michigan, which shall provide notice to all

successors-in-tifle that the property is part of the Site, that E P A selected a remedy for the Site in

September 1992, and that potentially responsible parties have entered into a Consent Decree

requiring implementation ofthe remedy. Such notice 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 Owner Defendant shall

record the notice within 30 days of EPA's approval of the notice. The Settling Owner Defendant

shall provide EPA with a certified copy of the recorded notice within 30 days of recording such

notice.


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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 Owner Defendant 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

Owner Defendant conveying the interest shall also give written notice to E P A 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, Settling Owner Defendant's

obligations under this Consent Decree, including, but not limited to, its 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 Owner Defendant.. In no event shall the conveyance release or

otherwise affect the liability of the Settling Owner Defendant 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.

United' SCates v. Allied Waste Systems, e t . a l . Butterworth. #2 Landfill Superfund Site

CONSENT DECREE - 15

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VI. PERFORMANCE OF THE W O R K B Y SETTLING WORK DEFENDANTS

10. Selection of Supervising Contractor.

a. A l l aspects of the Work to be performed by Settling Work Defendants

pursuant to Sections VI (Performance of the Work by Settling Work Defendants), VII (Remedy

Review), VIII (Quality Assurance, Sampling and Data Analysis), and X V (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 30 days after

the lodging of this Consent Decree, Settling Work Defendants shall notify EPA in writing of the

name, title, and qualifications of any contractor proposed to be the Supervising Contractor. EPA

will issue a notice of disapproval or an authorization to proceed. If at any time thereafter,

Settling Work Defendants propose to change a Supervising Contractor, Settling Work

Defendants shall give such notice to EPA and must obtain an authorization to proceed from EPA

before the new Supervising Contractor performs, directs, or supervises any Work under this

Consent Decree.

b. If EPA disapproves a proposed Supervising Contractor, EPA will notify

Settling Work Defendants in writing. Settling Work Defendants shall submit to E P A 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 ofthe other contractors. Settling Work Defendants may select any


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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 Work Defendants

from meeting one or more deadlines in a plan approved by the EPA pursuant to this Consent

Decree, Settling Work Defendants may seek relief under the provisions of Section XVIII

(Force Majeure) hereof.

11. Remedial Design.

The Remedial Design for the remedy set forth in the ROD was completed pursuant to the

Remedial Design A O C and was approved by the E P A on February 3, 1998. In accordance with

the SOW, Settling Work Defendants are required to submit a draft ARDPP for approval by E P A

within 10 days of the lodging of the decree. Within 20 days ofthe receipt of EPA's comments

on the draft ARDPP, Settling Work Defendants shall issue a final ARDPP. The ARDPP is

incorporated into and is an enforceable part of this Consent Decree.

12. Remedial Action

a. Within 45 days of the date of lodging of this Consent Decree, Settling

Work Defendants shall submit to EPA a draft work plan for the performance of the Remedial

Action at the Site. The Remedial Action Work Plan shall provide for construction and

implementation ofthe remedy set forth in the ROD and achievement of the Performance

Standards, in accordance with this Consent Decree, the ROD, the SOW, the ARDPP, and the

design plans and specifications approved by EPA. . Upon its approval by EPA, the R A Work Plan



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shall be incorporated into and become enforceable under this Consent Decree. Within 20 days of

receipt of EPA comments on the draft RA Work Plan, Settling Work Defendants shall submit to

E P A a final R A Work Plan.

b. The Remedial Action Work Plan shall include the following:

(1) a description ofthe strategy for completing the construction activities, (2) a bar chart

schedule for completing the construction activities, (3) a description of the strategy for

implementing the operation, maintenance, and monitoring activities, (4) a schedule for

implementing the operation, maintenance, and monitoring activities, (5) the schedule for

deliverables and other project milestones, as contained in Section V of the SOW, (6)

identification of any substantive permit requirements needed to implement the remedial action

and the schedule for addressing these requirements, (7) preliminary identification of the R A

project team, (8) delineation of the area around the landfill in which water supply well

installation will be prohibited and (9) an A C L performance monitoring plan including, at a

minimum, (10) installation and sampling and analysis procedures for all new

groundwater/surface water interface (GSI) wells, including the 17 A C L well locations and the

two to five additional GSI wells south of the RTSB area, (11) installation and sampling and

analysis procedures for three leachate monitoring wells in the RTSB area, (12) a list of the

mixing zone based GSI criteria (i.e. the ACLs) that have been established for the Butterworth

Site by the State of Michigan, (13) a data evaluation plan to assess compliance with the A C L s

and to evaluate the adequacy of the soil cover over the RTSB area, (14) an operation and

maintenance plan for the groundwater and leachate monitoring wells, (15) a contingency


CONSENT DECREE - If

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response plan, as described above, to address exceedances of the ACLs , and (16) a corrective

action plan to mitigate exceedances of the ACLs .

c. Upon approval of the Remedial Action Work Plan by EPA and after an

opportunity for EPA to consult with the State, Settling Work Defendants shall implement the

activities required under the Remedial Action Work Plan except for the following portion of

Work to be undertaken by non-settling PRPs, which includes: the excavation, loading and

transport of rooting zone material required for the construction of the east side portion of the cap

to be performed in the year 2000 and O & M consisting of clay cover repair, rooting zone and

topsoil repair, mowing, reseeding, fertilizing, fence maintenance, erosion and sediment control,

landfill gas monitoring, and remedial action reporting to commence within one year of the

completion of construction ofthe cap and continue through the year 2029. The Settling Work

Defendants shall submit to E P A 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 X I (EPA Approval of Plans and Other Submissions). Unless

otherwise directed by EPA, Settling Work Defendants shall not commence physical Remedial

Action activities at the Site prior to approval of the Remedial Action Work Plan.

d. Settling Work Defendants shall continue to implement the Remedial

Action and O & M until the Performance Standards are achieved and for so long thereafter as is

otherwise required under this Consent Decree.


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13. Modification of the Remedial Design or Related Work Plans.

a. If EPA determines that modification to the work specified in the Remedial

Design and/or in work plans developed pursuant to the Remedial Design 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

Remedial Design 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, as modified by the ESD.

b. For the purposes of this Paragraph 13 and Paragraphs 49,50, and 51 only,

the "scope of the remedy selected in the ROD" is: to prohibit the installation of water supply

wells within an area around the site to be defined at a later date in consultation with E P A and the

State of Michigan; to establish alternative concentration limits; to construct a new landfill cover,

including a clay capping layer, freeze-thaw layer, topsoil layer, revegetation, slope requirement

and flood protection; to remove and dispose of drums either concurrently exposed or uncovered

during activities conducted as part of the Remedial Action.

c. If Settling Work Defendants object to any modification determined by

EPA to be necessary pursuant to this Paragraph, they may seek dispute resolution pursuant to

Section XIX (Dispute Resolution), Paragraph 67 (record review). The ARDPP and/or related

work plans shall be modified in accordance with final resolution of the dispute.



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d. Settling Work Defendants shall implement any work required by any

modifications incorporated in the ARDPP and/or in work plans developed pursuant to the

ARDPP 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.

14. Settling Work Defendants acknowledge and agree that nothing in this Consent

Decree, or the Remedial Design or Remedial Action documents constitutes a warranty or

representation of any kind by Plaintiff that compliance with the work requirements set forth in

those documents will achieve the Performance Standards.

15. Settling Work Defendants shall, prior to any off-Site shipment of Waste Material

from the Site to an out-of-state waste management facility, provide written notification to the

appropriate state environmental official in the receiving facility's state and to the E P A 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 Work 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 Work Defendants shall notify the state in which the planned


CONSENT DECREE - 21

20140926-0080117

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 Work Defendants following the award of the contract for Remedial Action construction.

The Settling Work Defendants shall provide the information required by Paragraph 15.a as soon

as practicable after the award of the contract and before the Waste Material is actually shipped.

VII. R E M E D Y REVIEW •

16. Periodic Review. Settling Work Defendants shall conduct any studies and

investigations as requested by EPA, in order to permit E P A to conduct reviews of whether the

Remedial Action is protective of human health and the environment at least every five years as

required by Section 121(c) of C E R C L A and any applicable regulations.

17. EPA Selection of Further Response Actions. If E P A determines, at any time, that

the Remedial Action is not protective of human health and the environment, EPA may select

further response actions for the Site in accordance with the requirements of C E R C L A and the

NCP.

18. Opportunity To Comment. Settling Work Defendants and, i f required by Sections

113(k)(2) or 117 of C E R C L A , 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 C E R C L A and to submit written comments for the record during the comment

period.

United States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site CONSENT DECREE - 2 2

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19. Settling Work Defendants' Obligation To Perform" Further Response Actions. If

E P A selects further response actions for the Site, the Settling Work Defendants shall undertake

such further response actions to the extent that the reopener conditions in Paragraph 81 or

Paragraph 82 (United States' reservations of liability based on unknown conditions or new

information) are satisfied. Settling Work Defendants may invoke the procedures set forth in

Section X I X (Dispute Resolution) to dispute (1) EPA's determination that the reopener

conditions of Paragraph 81 or Paragraph 82 of Section X X I (Covenants Not To Sue by Plaintiff)

are satisfied,-(2) EPA's determination that the Remedial Action is not protective of human health

and the environment, or (3) EPA's selection of the further response actions. Disputes pertaining

to whether the Remedial Action is protective or to EPA's selection of further response actions

shall be resolved pursuant to Paragraph 67 (record review).

20. Submissions of Plans. If Settling Work Defendants are required to perform the

further response actions pursuant to Paragraph 19, they shall submit a plan for such work to E P A

for approval in accordance with the procedures set forth in Section VI (Performance of the Work

by Settling Work Defendants) and shall implement the plan approved by EPA in accordance with

the provisions of this Decree.

VIII. QUALITY A S S U R A N C E . SAMPLING, and D A T A A N A L Y S I S

21. Settling Work Defendants shall use quality assurance, quality control, and chain .

of custody procedures for all treatability, design, compliance and monitoring samples in

accordance with "EPA Requirements for Quality Assurance Project Plans for Environmental

Data Operation," (EPA QA/R5; "Preparing Perfect Project Plans," (EPA/600/9-88/087), and



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subsequent amendments to such guidelines upon notification by EPA to Settling Work

Defendants of such amendment. Amended guidelines shall apply only to procedures conducted

after such notification. Prior to the commencement of any monitoring project under this Consent

Decree, Settling Work Defendants shall submit to EPA for approval, after consultation with the.

State, a Quality Assurance Project Plan ("QAPP") that is consistent with the SOW, the NCP and

applicable guidance documents. If relevant to the proceeding, the Parties agree that validated

sampling data generated in accordance with the QAPP(s) and reviewed and approved by EPA

shall be admissible as evidence, without objection, in any proceeding under this Decree. Settling

Work Defendants shall ensure that EPA personnel and its authorized representatives are allowed

access at reasonable times to all laboratories utilized by Settling Work Defendants in

implementing this Consent Decree. In addition, Settling Work Defendants shall ensure that such

laboratories shall analyze all samples submitted by EPA pursuant to the QAPP for quality

assurance monitoring. Settling Work Defendants shall ensure that the laboratories they utilize

for the analysis of samples taken pursuant to this Decree perform all analyses according to

accepted EPA methods. Accepted EPA methods consist of those methods 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 ofthe implementation of this Decree. Settling Work Defendants

shall ensure that all laboratories they use for analysis of samples taken pursuant to this Consent

Decree participate in an EPA or EPA-equivalent QA/QC program. Settling Work Defendants

shall ensure that all field methodologies utilized in collecting samples for subsequent analysis


CONSENT DECREE - 24

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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 Work Defendants shall allow split or duplicate samples

to be taken by EPA or its authorized representatives. Settling Work Defendants shall notify EPA

not less than 14 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 Work Defendants to take split or

duplicate samples of any samples EPA takes as part of its oversight of the Settling Work

Defendants' implementation of the Work.

23. Settling Work Defendants shall submit to EPA 3 copies of the results of all

sampling and/or tests or' other data obtained or generated by or on behalf of Settling Work

Defendants with respect to the Site and/or the implementation of this Consent Decree unless

E P A 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 C E R C L A , R C R A and any other applicable statutes or

regulations.

IX. ACCESS A N D INSTITUTIONAL CONTROLS

25. If the Site, or any other property where access and/or land/water use restrictions

are needed to implement this Consent Decree, is owned or controlled by any of the Settling

Defendants, such Settling Defendants shall:


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a. commencing on the date of lodging of this Consent Decree, provide the

United States and its representatives, including EPA and its contractors, with access at all

reasonable times to the Site, or such other property, for the purpose of conducting any activity

related to this Consent Decree including, but not limited to, the following activities:

i . Monitoring the Work;

i i . Verifying any data or information submitted to the United

States;

ii i . Conducting investigations relating to contamination at or

near the Site;

iv. Obtaining samples;

v. Assessing the need for, planning, or implementing

additional response actions at or near the Site;

vi. Implementing the Work pursuant to the conditions set forth

in this Consent Decree;

vi i . Inspecting and copying records, operating logs, contracts, or other

documents maintained or generated by Settling Work Defendants

or their agents, consistent with Section X X I V (Access to

Information);

v i i i . Assessing Settling Work Defendants' compliance with this Consent

Decree; and


CONSENT DECREE - 26

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IX. Determining whether the Site or other property is being used in a

manner that is prohibited or restricted, or that may need to be

prohibited or restricted, by of pursuant to this Consent Decree;

b. commencing on the date of lodging of this Consent Decree, refrain from

using the Site, or such other property, in any manner that would interfere with or adversely affect

the integrity or protectiveness of the remedial measures to be implemented pursuant to this

Consent Decree. Such restrictions include, but are not limited to, no consumptive or other use of

the groundwater underlying the property and no installation, construction, removal or use of any

buildings, wells, pipes, roads ditches or any other structures at the property except as approved

by EPA in accordance with the Consent Decree and the ROD; and

Michigan, an easement, running with the land, that (1) grants a right of access for the purpose of

conducting any activity related to this Consent Decree including, but not limited to, those

activities listed in Paragraph 25.a of this Consent Decree, and (2) grants the right to enforce the

land/water use restrictions listed in Paragraph 25.b of this Consent Decree, or other restrictions

that EPA determines are necessary to implement, ensure non-interference with, or ensure the

protectiveness of the remedial measures to be performed pursuant to this Consent Decree. Such

Settling Defendants shall grant the access rights and the rights to enforce the land/water use

restrictions to (1) the United States, on behalf of EPA, and its representatives, (2) the State and

its representatives, (3) the other Settling Defendants and their representatives, and/or (4) other

c. execute and record in the Register of Deeds Office for Kent County,


CONSENT DECREE - 27

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appropriate grantees identified by EPA. Such Settling Defendants shall, within 45 days of entry

of this Consent Decree, submit to EPA for review and approval with respect to such property:

i. a draft easement that is enforceable under the laws of the State of Michigan, free

and clear of all prior liens and encumbrances (except as approved by EPA), and

acceptable under the Attorney General's Title Regulations promulgated pursuant

to 40 U.S.C. Section 255; and

ii. a current title commitment or report prepared in accordance with the U.S.

Department of Justice Standards for the Preparation of Title Evidence in Land

Acquisitions by the United States (1970) (the "Standards").

Within 15 days of EPA's approval and acceptance of the easement, such Settling Defendants .

shall update the title search and, i f it is determined that nothing has occurred since the effective

date of the commitment or report to affect the title adversely, record the easement with the

Register of Deeds Office for Kent County, Michigan. Within 30 days of recording the easement,

such Settling Defendants shall provide EPA with final title evidence acceptable under the

Standards, and a certified copy of the original recorded easement showing the clerk's recording

stamps.

26. If the Site, or any other property where access and/or land/water use

restrictions are needed to implement this Consent Decree, is owned or controlled by persons

other than any of the Settling Defendants, Settling Work Defendants shall use best efforts to

secure from such persons:


CONSENT DECREE - 2 8

a. agreement to provide access thereto for Settling Work Defendants, as

well as for the United States on behalf of EPA, and the State, as well as their representatives

(including contractors), for the purpose'of conducting any activity related to this Consent Decree

including, but not limited to, those activities listed in Paragraph 25(a) of this Consent Decree;

United States, to abide by the obligations and restrictions established by Paragraph 25(b) of this

Consent Decree, or that are otherwise necessary to implement, ensure non-interference with, or

ensure the protectiveness of the remedial measures to be performed pursuant to this Consent

Decree; and

County, Michigan, of an easement, running with the land, that (1) grants a right of access for the

purpose of conducting any activity related to this Consent Decree including, but not limited to,

those activities listed in Paragraph 25.a of this Consent Decree, and (2) grants the right to enforce

the land/water use restrictions listed in Paragraph 25.b of this Consent Decree, or other

restrictions that EPA determines are necessary to implement, ensure non-interference with, or

ensure the protectiveness of the remedial measures to be performed pursuant to this Consent

Decree. The access rights and/or rights to enforce land/water use restrictions shall be granted to

(1) the United States, on behalf of EPA, and its representatives, (2) the State and its

representatives, (3) the Settling Work Defendants and their representatives, and/or (4) other

appropriate grantees identified by EPA. If EPA so requests, within 45 days after notice of such a

b. an agreement, enforceable by the Settling Work Defendants and the

c. the execution and recordation in the Register of Deeds Office for Kent


i 20140926-0080117

request, Settling Work Defendants shall submit to EPA for review and approval with respect to

such property:

i . a draft easement that is enforceable under the laws of the State of

Michigan, free and clear of all prior liens and encumbrances (except as approved by

EPA), and acceptable under the Attorney General's Title Regulations promulgated

pursuant to 40 U.S.C. Section 255; and

i i . a current title commitment or report prepared in accordance with

the U.S. Department of Justice Standards for the Preparation of Title Evidence in Land.

Acquisitions by the United States" (1970) (the "Standards").

Within 15 days of EPA's approval and acceptance of the easement, Settling Work Defendants

shall update the title search and, i f it is determined that nothing has occurred since the effective

date of the commitment or report to affect the title adversely, the easement shall be recorded with

the Register of Deeds Office for Kent County, Michigan. Within 30 days ofthe recording of the

easement, Settling Work Defendants shall provide EPA with final title evidence acceptable under

the Standards, and a certified copy of the original recorded easement showing the clerk's

recording stamps.

27. If any access or land/water use restriction agreements required by

Paragraphs 26.a or 26.b of this Consent Decree are not obtained within 45 days of the date of

entry of this Consent Decree, or any access easements or restrictive easements required by

Paragraph 26.c of this Consent Decree are not submitted to EPA in draft form within 45 days of a

request by EPA, Settling Work Defendants shall promptly notify the United States in writing, and

United States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site CONSENT DECREE - 3 0

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shall include in that notification a summary of the steps that Settling Work Defendants have

taken to attempt to comply with Paragraph 26 of this Consent Decree. The United States may, as

it deems appropriate, assist Settling Work Defendants in obtaining access or land/water use

restrictions, either in the form of contractual agreements or in the form of easements running

with the land.

28. If EPA determines that land/water use restrictions in the form of state or local

laws, regulations, ordinances or other governmental controls are needed to implement the remedy

selected i n the ROD, as modified by the ESD, ensure the integrity and protectiveness thereof, or

ensure non-interference therewith, Settling Defendants shall cooperate with EPA's and the State's

efforts to secure such governmental controls.

29. Notwithstanding any provision of this Consent Decree, the United States and the

State retain all of their access authorities and rights, as well as all of their rights to require

land/water use restrictions, including enforcement authorities related thereto, under C E R C L A ,

R C R A and any other applicable statute or regulations.

X . REPORTING REQUIREMENTS

30. In addition to any other requirement of this Consent Decree, Settling Work

Defendants shall submit to E P A 3 copies of written monthly progress reports that: (a) describe

the actions which have been taken toward achieving compliance with this Consent Decree during

the previous month; (b) include a summary of all results of sampling and tests and all other data

received or generated by Settling Work Defendants or their contractors or agents in the previous

month; (c) identify all work plans, plans and other deliverables required by this Consent Decree

Dnited States v. Allied Waste. Systems, e t . a l . Butterworth #2 Landfill Superfund Site

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20-ary Ho 2nt Cn

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, including, but not

limited to, critical path diagrams, Gantt charts and Pert charts; (e) include information regarding

percentage of completion, unresolved delays encountered or anticipated that may affect the future

schedule for implementation of the Work, and a description of efforts made to mitigate those

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

that Settling Work 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 Work Defendants shall

submit these progress reports to EPA by the tenth day of every month following the lodging of

this Consent Decree until EPA notifies the Settling Work Defendants pursuant to Paragraph 49.c

of Section XIV (Certification of Completion). If requested by EPA, Settling Work Defendants

shall also provide briefings for E P A to discuss the progress of the Work.

31. The Settling Work 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 than seven days prior to the

performance of the activity.

32. Upon the occurrence of any event during performance of the Work that Settling

Work Defendants are required to report pursuant to Section 103 of C E R C L A or Section 304 of

the Emergency Planning and Community Right-to-know Act (EPCRA), Settling Work

United States v. The City of Grand Rapids, Michigan, et al. Butterworth #2 Landfill Superfund Site CONSENT DECREE - 32 -

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Defendants shall within 24 hours of the onset or sucn 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 5, United States

Environmental Protection Agency. These reporting requirements are in addition to the reporting

required by C E R C L A Section 103 or EPCRA Section 304..

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

furnish to Plaintiff a written report, signed by the Settling Work Defendants' Project Coordinator,

setting forth the events which occurred and the measures taken, and to be taken, in response

thereto. Within 30 days of the conclusion of such an event, Settling Work Defendants shall

submit a report setting forth all actions taken in response thereto.

34. Settling Work Defendants shall submit 3 copies of all plans, reports, and data

required by the ARDPP or any other approved plans to EPA in accordance with the Remedial

Action Workplan. Settling Work Defendants shall simultaneously submit 3 copies of all such

plans, reports and data to the State.

35. A l l reports and other documents submitted by Settling Work Defendants to E P A

(other than the monthly progress reports referred to above) which purport to document Settling

Work Defendants' compliance with the terms of this Consent Decree shall be signed by an

authorized representative of the Settling Work Defendants.

United'States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site-


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XI. EPA A P P R O V A L OF PLANS A N D OTHER SUBMISSIONS

36. After review of any plan, report or other item which is required to be submitted

for approval pursuant to this Consent Decree, EPA, after consultation with the State, shall: (a)

approve, in whole or in part, the submission; (b) approve the submission upon specified

conditions; (c) modify the submission to cure the deficiencies; (d) disapprove, in whole or in

part, the submission, directing that the Settling Work Defendants modify the submission; or (e)

any combination of the above. However, EPA shall not modify a submission without first

providing Settling Work Defendants at least one notice of deficiency and an opportunity to cure

within 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.

37. In the event of approval, approval upon conditions, or modification by EPA,

pursuant to Paragraph 36(a), (b), or (c), Settling Work 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 X I X (Dispute

Resolution) with respect to the modifications or conditions made by EPA. In the event that EPA

modifies the submission to cure the deficiencies pursuant to Paragraph 36(c) and the submission

has a material defect, EPA retains its right to seek stipulated penalties, as provided in Section X X

(Stipulated Penalties).



Illlllllllllllllllllllllll' 20140926-0080 17

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38. a. Upon receipt oi a noVKent cnty mi Rgstr09/26/20i4 SEftL ragraph 36(d), Settling

Work Defendants shall, within 30 days or such longer time as specified by EPA in such notice,

correct the deficiencies and resubmit the plan, report, or other item for approval. Any stipulated

penalties applicable to the submission, as provided in Section X X (Stipulated Penalties), shall

accrue during the 30-day period 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 36

and 37.

b. Notwithstanding the receipt of a notice of disapproval pursuant to Paragraph

36(d), Settling Work Defendants shall proceed, at the direction of EPA, to take any action

required by any non-deficient portion ofthe submission. Implementation of any non-deficient

portion of a submission shall not relieve Settling Work Defendants of any liability for stipulated

penalties under Section X X (Stipulated Penalties).

39. In the event that a resubmitted plan, report or other item, or portion thereof, is

disapproved by EPA, EPA may again require the Settling Work 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 Work 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 X I X (Dispute Resolution).

40. If upon resubmission, a plan, report, or item is disapproved or modified by E P A

due to a material defect, Settling Work Defendants shall be deemed to have failed to submit such

plan, report, or item timely and adequately unless the Settling Work Defendants invoke the



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dispute resolution procedures set form in "section X f X (Dispute Resolution) and EPA's action is

overturned pursuant to that Section. The provisions of Section X I X (Dispute Resolution) and

Section X X (Stipulated Penalties) shall govern the implementation of the Work and accrual and

payment of any stipulated penalties during Dispute Resolution. If EPA's disapproval or

modification is upheld, stipulated penalties shall accrue for such violation from the date on which

the initial submission was originally required, as provided in Section X X (Stipulated Penalties).

41. A l l 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

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

E P A wil l notify each other, in writing, of the name, address and telephone number of their

respective designated Project Coordinators and Alternate Project Coordinators. If a Project

Coordinator or Alternate Project Coordinator initially designated is changed, the identity of the

successor will be given to the other Parties at least 5 working days before the changes occur,

unless impracticable, but in no event later than the actual day the change is made. The Settling

Work 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 Work

Defendants' Project Coordinator shall not be an attorney for any of the Settling Work Defendants


CONSENT DECREE 36 -

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Mary HoUinrake P:53/120 11:57AM

in this matter. He or she may ass ign K 4?iJ^LL™Jsi i^ other contractors, to serve

as a Site representative for oversight of performance of daily operations during remedial

activities.

43. Plaintiff may designate other representatives, including, but not limited to, EPA

employees, and federal contractors and consultants, to observe and monitor the progress of any

activity undertaken pursuant to this Consent Decree. EPA's Project Coordinator and Alternate

Project Coordinator shall have the authority lawfully vested in a Remedial Project Manager

(RPM) and an On-Scene Coordinator (OSC) by the National Contingency Plan, 40 C.F.R. Part

300. In addition, EPA's Project Coordinator or Alternate Project Coordinator shall have

authority, consistent with the National Contingency Plan, to halt any Work required by this

Consent Decree and to take any necessary response action when s/he determines that conditions

at the Site constitute an emergency situation or may present an immediate threat to public health

or welfare or the environment due to release or threatened release of Waste Material.

44. EPA's Project Coordinator and the Settling Work Defendants' Project Coordinator

wil l meet, at a minimum, on a quarterly basis, unless a different frequency is mutually agreed to.

XIII. A S S U R A N C E OF ABILITY TO COMPLETE W O R K

45. Within 30 days of entry of this Consent Decree, Settling Work Defendants shall

establish and maintain financial security in the amount of $15,230,000 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 equaling the total

estimated cost of the Work; |N||1UU|I||I|IM|IIIIIII (c) v J ' Kent Cnty MI Rgstr 09/26/2014 SEAL

(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 Work Defendants;

(e) A demonstration that one or more of the Settling

Work Defendants satisfy the requirements of

40C.F.R. Part 264.143(f).

46. If the Settling Work Defendants seek to demonstrate the ability to complete the

Work through a guarantee by a third party pursuant to Paragraph 45(d) of this Consent Decree,

Settling Work Defendants shall demonstrate that the guarantor satisfies the requirements of

40 C.F.R. Part 264.143(f). If Settling Work Defendants seek to demonstrate their ability to

complete the Work by means of the financial test or the corporate guarantee pursuant to

Paragraph 45(d) or (e), they shall resubmit sworn statements conveying the information required

by 40 C.F.R. Part 264.143(f) annually, on the anniversary of the effective date of this Consent

Decree. In the event that EPA, after consultation with the State, determines at any time that the

financial assurances provided pursuant to this Section are inadequate, Settling Work Defendants

shall, within 30 days of receipt of notice of EPA's determination, obtain and present to EPA for


CONSENT DECREE - 38

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Kent Cnty MI Rgstr09/26/2014 SEAL

Decree. Settling Work Defendants' inability to demonstrate financial ability to complete the

Work shall not excuse performance of any activities required under this Consent Decree.

47. If Settling Work Defendants can show that the estimated cost to complete the

remaining Work has diminished below the amount set forth in Paragraph 45 above after entry of

this Consent Decree, Settling Work Defendants may, on any anniversary date of entry , of this

Consent Decree, or at any other time agreed to by the Parties, reduce the amount of the financial

security provided under this Section to the estimated cost of the remaining work to be performed.

Settling Work 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

E P A . In the event of a dispute, Settling Work Defendants may reduce the amount of the security

in accordance with the final administrative or judicial decision resolving the dispute.

48. Settling Work 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 Work

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

49. Completion of Construction.

a. Within 15 days after Settling Work Defendants conclude construction of

the Remedial Action as set forth in the SOW, Settling Work Defendants shall schedule and

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EPA. Within 15 days after completion of the pre-final, pre-certification inspection, the Settling

Work Defendants shall submit a written report of the inspection, including a schedule for

completing any items identified during the pre-final, pre-certification inspection. Within 15 days

after completion of the work items identified in the pre-final, pre-certification inspection report,

the Settling Work Defendants shall schedule and conduct a final pre-certification inspection to be

attended by Settling Work Defendants and EPA. Within 15 days after completion of the final

pre-certification inspection, the Settling Work Defendants shall submit a written report ofthe

inspection, including a schedule for completing any items identified during the final

pre-certification inspection. If, after the final pre-certification inspection, the Settling Work

Defendants still believe that construction has been fully performed, they shall submit a written

Completion of Construction report requesting certification to EPA for approval, with a copy to

the State, pursuant to Section XI (EPA Approval of Plans and Other Submissions) within 60 days

of the final inspection. In the report, a registered professional engineer and the Settling Work

Defendants' Project Coordinator shall state that construction has been completed in full

satisfaction of the requirements of this Consent Decree. The written report shall include as-built

drawings signed and stamped by a professional engineer, and, as needed, an addendum to the

O & M Plan. The report shall contain the following statement, signed by a responsible corporate

official of a Settling Work Defendant or the Settling Work 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 that there are significant penalties for submitting false


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lnformation, including the possioinxy orTineano: imprisonment

violations.

b. If, after receipt and review of the written Completion of Construction Report,

EPA, after consultation with the State, determines that construction or any portion thereof has

not been completed in accordance with this Consent Decree, EPA will notify Settling Work

Defendants in writing of the activities that must be undertaken by Settling Work Defendants

pursuant to this Consent Decree to complete construction. Provided, however, that EPA may

only require Settling Work Defendants to perform such activities pursuant to this Paragraph to

the extent that such activities are consistent with the "scope of the remedy selected in the ROD"

as that term is defined in Paragraph 13.b. EPA will set forth in the notice a schedule for

performance of such activities consistent with the Consent Decree and the SOW or require the

Settling Work Defendants to submit a schedule to EPA for approval pursuant to Section X I (EPA

Approval of Plans and Other Submissions). Settling Work 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 X I X (Dispute Resolution).

c. If EPA concludes, based on the initial or any subsequent report requesting

Certification of Completion of Construction and after consultation with the State, that

Construction has been performed in accordance with this Consent Decree, EPA will so certify in

writing to Settling Work Defendants. This certification shall constitute the Completion of

Construction for purposes of this Consent Decree, including, but not limited to, Section X X I



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(Covenants Not to Sue by Plaintiff). Certification of Completion of Construction shall not affect

Settling Work Defendants' other obligations under this Consent Decree.

50. Completion of the Remedial Action

a. Within 90 days after Settling Work Defendants conclude that the

Remedial Action has been fully performed and the Performance Standards have been attained,

Settling Work Defendants shall schedule and conduct a pre-certification inspection to be attended

by Settling Work Defendants and EPA. If, after the pre-certification inspection, the Settling

Work Defendants still believe that the Remedial Action has been fully performed and the

Performance Standards have been attained, they shall submit a written report requesting

certification to EPA for approval, with a copy to the State, pursuant to Section X I (EPA

Approval of Plans and Other Submissions) within 45 days of the inspection. In the report, a

registered professional engineer and the Settling Work Defendants' Project Coordinator shall

state that the Remedial Action has been completed in full satisfaction of the requirements of this

Consent Decree. The report shall contain the following statement, signed by a responsible

corporate official of a Settling Defendant or the Settling 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 that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

If, after completion of the pre-certification inspection and receipt and review of the

written report, EPA, after consultation with the State, determines that the Remedial Action or any

portion thereof has not been completed in accordance with this Consent Decree or that the



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Performance Standards have not been achieved, EPA will notify Settling Work Defendants in

writing of the activities that must be undertaken by Settling Work Defendants pursuant to this

Consent Decree to complete the Remedial Action and achieve the Performance Standards.

Provided, however, that EPA may only require Settling Work Defendants to perform such

activities pursuant to this Paragraph to the extent that such activities are consistent with "scope of

the remedy selected in the ROD" as that term is defined in Paragraph 13.b. E P A will set forth in

the notice a schedule for performance of such activities consistent with the Consent Decree and

the SOW or require the Settling Work Defendants to submit a schedule to EPA for approval

pursuant to Section XI (EPA Approval of Plans and Other Submissions). Settling Work

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 X I X (Dispute Resolution).

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

Certification of Completion and after consultation with 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 Work Defendants. This certification

shall constitute the Certification of Completion ofthe Remedial Action for purposes of this

Consent Decree, including, but not limited to, Section X X I (Covenants Not to Sue by Plaintiff).

Certification of Completion of the Remedial Action shall not affect Settling Work Defendants'

obligations under this Consent Decree.

51. Completion of the Work



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20" iry Ho ant Cn

a. Within 90 days after Settling; Work Deiencfarrcs conclude that all phases of

the Work (including O & M), have been fully performed, Settling Work Defendants shall

schedule and conduct a pre-certification inspection to be attended by Settling Work Defendants,

EPA. If, after the pre-certification inspection, the Settling Work Defendants still believe that the

Work has been fully performed, Settling Work Defendants shall submit a written report

requesting certification to EPA for approval, with a copy to the State within 45 days of the

inspection. In the report, a registered professional engineer and the Settling Work Defendants'

Project Coordinator shall state that the Work has been completed in full satisfaction of the

requirements of this Consent Decree. The report shall contain the following statement, signed by

a responsible corporate official of a Settling Work Defendant or the Settling Work Defendants'

Project Coordinator:

"To the best of my knowledge, after thorough investigation,-1 certify that the information contained in or accompanying this submission is true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

If, after review of the written report, EPA, after consultation with the State, determines

that any portion ofthe Work has not been completed in accordance with this Consent Decree,

EPA will notify Settling Work Defendants in writing of the activities that must be undertaken by

Settling Work Defendants pursuant to this Consent Decree to complete the Work. Provided,

however, that EPA may only require Settling Work Defendants to perform such activities

pursuant to this Paragraph to the extent that such activities are consistent with the "scope of the

remedy selected in the ROD" as that term is defined in Paragraph 13.b. EPA will set forth in the



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notice a schedule for performance of i^ll^JÎJL^ÔTifmTOiri-vvi-tn-tiie Consent Decree and the

SOW or require the Settling Work Defendants to submit a schedule to EPA for approval pursuant

to Section XI (EPA Approval of Plans and Other Submissions). Settling Work Defendants shall

perform all activities described in the notice in accordance with the specifications and schedules

established therein, subject to their right to invoke the dispute resolution procedures set forth in

Section X I X (Dispute Resolution).

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

Certification of Completion by Settling Work Defendants and after consultation with the State,

that the Work has been performed i n accordance with this Consent Decree, EPA will so notify

the Settling Defendants in writing.

X V . E M E R G E N C Y RESPONSE

52. 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 welfare or the environment,

Settling Work Defendants shall, subject to Paragraph 53, 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, i f the Project Coordinator is unavailable, EPA's Alternate Project

Coordinator. If neither of these persons is available, the Settling Work Defendants shall notify

the EPA Emergency Response Unit, Region 5. Settling Work 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

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Plans, and any other applicable plans or aocuments developed pursuant to the SOW. In the event

that Settling Work Defendants fail to take appropriate response action as required by this

Section, and EPA takes such action instead, Settling Work Defendants shall reimburse EPA all

costs ofthe response action not inconsistent with the NCP pursuant to Section X V I

(Reimbursement of Response Costs).

53. 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 actual or threatened release of Waste Material on, at, or from the Site, subject to

Section X X I (Covenants Not to Sue by Plaintiff).

X V I . P A Y M E N T OF RESPONSE COSTS

54. a. Payments by SettlingCash Defendants: Within 30 days of the date of entry of

this Consent Decree, all funds to be paid by each Settling Cash Defendant shall be paid to the

Settling Work Defendants as established and designated by mutual agreement of the Settling

Work Defendants and Settling Cash Defendants in contribution towards the Work and fulfillment

of legal obligations related to the Site. Each Settling Cash Defendant's obligations under this

Consent Decree shall be limited to the payment of its requisite amount, except as specifically

provided in Paragraphs 6.a and 84; no Settling Cash Defendant shall be responsible for any

payment required of any other Party. The failure of any Settling Cash Defendant to satisfy its



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payment obligation pursuant to this raragrapn snan nor aeier me obligations of the Settling

Work Defendants under this Consent Decree. The name of each Settling Cash Defendant shall be

submitted to the United States as provided in Section X X V I (Notices and Submissions) upon

execution of the Consent Decree by each Settling Cash Defendant and will subsequently be

appended to Appendix E.1 of this Consent Decree prior to entry.

b. Except as provided in subparagraph c. of this Paragraph, Settling

Defendants shall not be required to reimburse EPA for Future Response Costs; E P A may,

however, seek reimbursement of Future Response Costs from the non-settling PRPs.

c. Notwithstanding the provisions of subparagraph b. of this Paragraph, the

United States may seek reimbursement of certain Future Response Costs from Settling Work

Defendants if either (1) Settling Work Defendants are not in compliance with this Consent

Decree, or (2) EPA takes over the Work at the Site under Paragraphs 52 or 85 of this Consent

Decree. In the event EPA takes over the work pursuant to Paragraph 52 or 85, EPA may seek,

and the Settling Work Defendants shall be responsible for, any Future Response Costs incurred

pursuant to those Paragraphs. In the event Settling Work Defendants fail to comply with this

Consent Decree and EPA takes action against them to enforce its terms, EPA may seek, and the

Settling Work Defendants shall be responsible for, any Future Response Costs incurred in such

enforcement action(s). If payment is required, Settling Work 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


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Site/Spill ID #MID062222997, the DOJ case number 90-11 -3-145A, and the name and address

of the party making payment. The Settling Work Defendants shall send the check(s) to

USEPA Superfund Accounting Office P.O. Box 70753 Chicago, Illinois 60673

and shall send copies of the check(s) to the United States as specified in Section X X V I (Notices

and Submissions) and Superfund Accounting, PO Box 70753, Chicago, IL 60673.

55. Settling Work Defendants may contest payment of any Future Response Costs

• payable under Paragraph 54 if they deterrnine that the United States has made an accounting

error or if they allege that a cost item that is included represents costs that are inconsistent with

the NCP. Such objection shall be made in writing within 30 days of receipt of the bill and must

be sent to the United States, if the United States' accounting is being disputed, pursuant to

Section X X V I (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 Work Defendants shall within the 30 day period pay all uncontested Future Response

Costs to the United States in the manner described in Paragraph 54.c. Simultaneously, the

Settling Work Defendants shall establish an interest-bearing escrow account in a federally-

insured bank duly chartered in the State of Michigan and remit to that escrow account funds

equivalent to the amount of the contested Future Response Costs. The Settling Work Defendants

shall send to the United States, as provided in Section X X V I (Notices and Submissions), a copy

of the transmittal letter and check paying the uncontested Future Response Costs, and a copy of

the correspondence that establishes and funds the escrow account, including, but not limited to,



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information containing the identity oi oanK ana oainc account under which the escrow

account is established as well as a bank statement showing the initial balance of the escrow

account. Simultaneously with establishment of the escrow account, the Settling Work

Defendants shall initiate the dispute resolution procedures in Section X I X (Dispute Resolution).

If the United States prevails in the dispute, within 5 days of the resolution of the dispute, the

Settling Work Defendants shall pay the sums due (with accrued interest) to the United States in

the manner described in Paragraph 54.c. If the Settling Work Defendants prevail concerning any

aspect of the contested costs, the Settling Work 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 54.c; Settling Work Defendants shall be disbursed any balance of

the escrow account. The dispute resolution procedures set forth in this Paragraph in conjunction

with the procedures set forth in Section X I X (Dispute Resolution) shall be the exclusive

mechanisms for resolving disputes regarding the Settling Work Defendants' obligation to

reimburse the United States for its Future Response Costs.

56. In the event that any payments which may be required by Paragraph 54.c. are not

made within 30 days ofthe Settling Work Defendants' receipt of the bill, Settling Work

Defendants shall pay Interest on the unpaid balance. The Interest on Future Response Costs shall

begin to accrue on the date ofthe b i l l The Interest shall accrue through the date ofthe Settling

Work Defendants' payment. Payments of Interest made under this Paragraph shall be in addition

to such other remedies or sanctions available to Plaintiffs by virtue of Settling Work Defendants'


CONSENT DECREE - 49

20 Illlllllllllllll

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failure to make timely payments unocr cms D r o u m r . rnrDranng « ork Detendants shall make

all payments required by this Paragraph in the manner described in Paragraph 54.c.

XVII. INDEMNIFICATION A N D INSURANCE

57; a. The United States does not assume any liability by entering into this

agreement or by virtue of any designation of Settling Work Defendants as EPA's authorized

representatives under Section 104(e) of C E R C L A . Settling Work Defendants shall indemnify,

save and hold harmless the United States 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 Work Defendants,

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 Work

Defendants as EPA's authorized representatives under Section 104(e) of C E R C L A . Further, the

Settling Work Defendants agree to pay the United States 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 Work Defendants, 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 Work Defendants in carrying out activities



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pursuant to this Consent Decree. Neither the Settling Work Defendants nor any such contractor

shall be considered an agent of the United States.

b. The United States shall give Settling Work Defendants notice of any claim

for which the United States plans to seek indemnification pursuant to Paragraph 57.a., and shall

consult with Settling Work Defendants prior to settling such claim.

58. Settling Work Defendants waive all claims against the United States for damages

or reimbursement or for set-off of any payments made or to be made to the United States, arising

from or on account of any contract, agreement, or arrangement between any one or more of

Settling Work Defendants and any person for performance of Work on or relating to the Site,

including, but not limited to, claims on account of construction delays. In addition, Settling

Work Defendants 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 Work Defendants and any person for

performance of Work on or relating to the Site, including, but not limited to, claims on account

of construction delays.

59. No later than 15 days before commencing any on-site Work, Settling Work

Defendants shall secure, and shall maintain until the first anniversary of EPA's Certification of

Completion of the Remedial Action pursuant to Paragraph 50.b. of Section X I V (Certification of

Completion) comprehensive general liability insurance with limits of one million dollars,

combined single limit, and automobile liability insurance with limits of one million dollars,

combined single limit, naming the United States as an additional insured. In addition, for the



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duration of this Consent Decree, Settling "Work Defendants shall satisfy, or shall ensure, that their

contractors or subcontractors satisfy, all applicable laws and regulations regarding the provision

of worker's compensation insurance for all persons performing the Work on behalf of Settling

Work Defendants in furtherance of this Consent Decree. Prior to commencement of the Work

under this Consent Decree, Settling Work Defendants shall provide to EPA certificates of such

insurance and a copy of each insurance policy. Settling Work Defendants shall resubmit such

certificates and copies of policies each year on the anniversary of the effective date of this

Consent Decree. If Settling Work Defendants demonstrate by evidence satisfactory to EPA that

any contractor or subcontractor maintains insurance equivalent to that described above, or

insurance covering the same risks but in a lesser amount, then, with respect to that contractor or

subcontractor, Settling Work Defendants need provide only that portion of the insurance

described above which is not maintained by the contractor or subcontractor.

XVIII. FORCE M A J E U R E

60. "Force majeure," for purposes of this Consent Decree, is defined as any event

arising from causes beyond the control of the Settling Defendants, of any entity controlled by

Settling Defendants, or of Settling Defendants' contractors, that delays or prevents the

performance of any obligation under this Consent Decree despite Settling Defendants' best

efforts to fulfill the obligation. The requirement that the Settling Defendants exercise "best

efforts to fulfill the obligation" includes using best efforts to anticipate any potential force

majeure event and best efforts to address the effects of any potential force majeure event (1) as it

is occurring and (2) following the potential force majeure event, such that the delay is minimized



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to the greatest extent possible. "Force Majeure" does not include "financial inability to complete

the Work or a failure to attain the Performance Standards.

61. 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 Defendants shall notify orally EPA's Project Coordinator or, in his or her absence, EPA's

Alternate Project Coordinator or, in the event both of EPA's designated representatives are

unavailable, the Director of the Hazardous Waste Management Division, E P A Region 5, within

48 hours of when Settling Defendants-first knew that the event might cause a delay. Within 5

days thereafter, Settling Defendants 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 i f they intend to assert such a claim;

and a statement as to whether, in the opinion of the Settling Defendants, such event may cause or

contribute to an endangerrnent to public health, welfare or the environment. The Settling

Defendants shall include with any notice all available documentation supporting their claim that

the delay was attributable to a force majeure. Failure to comply with the above requirements

shall preclude Settling Defendants 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 deemed to know of any circumstance of which Settling Defendants,



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any entity controlled by Settling Defendants, or Settling Defendants' contractors knew or should

have known.

62. If EPA, after a consultation with the State, agrees that the delay or anticipated

delay is attributable to a force majeure event, the time for performance of the obligations under

this Consent Decree that are affected by the force majeure event will be extended by E P A for

such time as is necessary to complete those obligations. A n 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 obligation. If E P A 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 in writing of its decision. If EPA agrees that the delay is attributable to a force

majeure event, EPA will notify the Settling Work Defendants in writing of the length ofthe

extension, i f any, for performance of the obligations affected by the force majeure event.

63. If the Settling Defendants elect to invoke the dispute resolution procedures set

forth in Section X I X (Dispute Resolution), they shall do so no later than 15 days after receipt of

EPA's notice. In any such proceeding, Settling Defendants shall have the burden of

demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or

will be caused by a force majeure event, that the duration of the delay or the extension sought

was or will be warranted under the circumstances, that best efforts were exercised to avoid and

mitigate the effects ofthe delay, and that Settling Defendants complied with the requirements of

Paragraphs 60 and 61, above. If Settling Defendants carry this burden, the delay at issue shall be



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deemed not to be a violation by Settling ucxenaanxs ot me affected obligation of this Consent

Decree identified to E P A and the Court.

X I X . DISPUTE RESOLUTION

64. Unless otherwise expressly provided for in this Consent Decree, the dispute

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising

under or with respect to this Consent Decree. However, the procedures set forth in this Section

shall not apply to actions by the United States to enforce obligations of the Settling Defendants

that have not been disputed in accordance with this Section. - -

65. Any dispute which arises under or with respect to this Consent Decree shall in the

first instance be the subject of informal negotiations between the parties to the dispute. The

period for informal negotiations shall not exceed 20 days from the time the dispute arises, unless

it is modified by written agreement of the parties to the dispute. The dispute shall be considered

to have arisen when one party sends the other parties a written Notice of Dispute.

66. a. In the event that the parties cannot resolve a dispute by informal negotiations

under the preceding Paragraph, then the position advanced by E P A shall be considered binding

unless, within 14 days after the conclusion ofthe informal negotiation period, Settling

Defendants 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. The Statement of Position shall specify


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the Settling Defendants' position as id whether formal dispute resolution should proceed under

Paragraph 67 or Paragraph 68.

b. Within 14 days after receipt of Settling Defendants' Statement of Position,

E P A will serve on Settling Defendants its Statement of Position, including, but not limited to,

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

relied upon by EPA. EPA's Statement of Position shall include a statement as to whether formal

dispute resolution should proceed under Paragraph 67 or 68. Within 14 days after receipt of

EPA's Statement of Position, Settling Defendants may submit a Reply.

c. If there is disagreement between EPA and the Settling Defendants as to

whether dispute resolution should proceed under Paragraph 67 or 68, 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 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 67 and 68.

67. 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 ofthe performance of response actions taken pursuant to this Consent Decree.


CONSENT DECREE - 56

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Nothing in this Consent Decree shall t^ n ^TroOTro P airow way dispute by Settling Defendants

regarding the validity of the ROD's provisions.

a: A n administrative record of the dispute shall be maintained by E P A and

shall contain all statements of position, including supporting documentation, submitted pursuant

to this Section. Where appropriate, E P A may allow submission of supplemental statements of

position by the parties to the dispute.

b. The Director of the Waste Management Division, EPA Region 5, will

issue a final administrative decision resolving the dispute based on the administrative record

described in Paragraph 67.a. This decision shall be binding upon the Settling Defendants,

subject only to the right to seek judicial review pursuant to Paragraph 67.c. and d.

c. Any administrative decision made by EPA pursuant to Paragraph 67.b.

shall be reviewable by this Court, provided that a motion for judicial review of the decision is

filed by the Settling Defendants with the Court and served on all Parties within 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, i f any, within which the

dispute must be resolved to ensure orderly implementation of this Consent Decree. The United

States may file a response to Settling Defendants' motion.

d. In proceedings on any dispute governed by this Paragraph, Settling

Defendants shall have the burden of demonstrating that the decision of the Waste Management

Division Director is arbitrary and capricious or otherwise not in accordance with law. Judicial



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review of EPA's decision shall be on me administrative record compiled pursuant to Paragraph

67.a.

68. Formal dispute resolution for disputes that neither pertain to the selection or

adequacy of any response action nor are otherwise accorded review on the administrative record

under applicable principles of administrative law, shall be governed by this Paragraph.

a. Following receipt of Settling Defendants' Statement of Position submitted

pursuant to Paragraph 66, the Director ofthe Waste Management Division, E P A Region 5, will

issue a final decision resolving the dispute. The Waste Management Division Director's decision'

shall be binding on the Settling Defendants unless, within 10 days of receipt of the decision, the

Settling Defendants 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, i f any, within which the dispute must be resolved to ensure

orderly implementation ofthe Consent Decree. The United States may file a response to Settling

Defendants' motion.

b. Judicial review of any dispute governed by this Paragraph shall be

governed by applicable principles of law.

69. The invocation of formal dispute resolution procedures under this Section shall

hot extend, postpone or affect in any way any obligation of the Settling Defendants under this

Consent Decree, not directly in dispute, unless E P A or the Court agrees otherwise. Stipulated

penalties with respect to the disputed matter shall continue to accrue but payment shall be stayed

pending resolution of the dispute as provided in Paragraph 77. Notwithstanding the stay pf


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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 do not

prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in

Section X X (Stipulated Penalties).

X X . STIPULATED PENALTIES

70. Settling Defendants shall be liable for stipulated penalties in the amounts

set forth in Paragraphs 71 and 72 to the United States for failure to comply with the requirements

of this Consent Decree specified below, unless excused under Section XVIII (Force Majeure).

"Compliance" by Settling Work Defendants shall include completion of the activities under this

Consent Decree, or any schedule or work 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 and within the

specified time schedules established by and approved under this Consent Decree

71. a. The following stipulated penalties shall accrue per violation per day for any

noncompliance identified in Subparagraph b:

Penalty Per Day of Noncompliance

1 -14 Davs 15+ Davs 15-30 Days

$250/day $500/day $l,000/day

b. Failure of Settling Work Defendants to submit the following documents

on time: ARDPP, R A Work Plan, Inspection Report, O & M Plan Addendum, Construction



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Report, Remedial Action Report, and V K J " L c ^ Y

F o i vAcmeaiar action Completion Report, Work

Reports, Monthly Progress Reports, and other written documents other than those identified.

c. The following stipulated penalties shall accrue per violation per day for

any noncompliance identified in Subparagraph d:

Penalty Per Day of Noncompliance

1-14 Davs 15+ Davs 15-30 Days

$l,000/day . 3,000/day 5,000/day .

d. Failure,of Settling Work Defendants to commence onrsite. construction

activities according to the approved schedule and/or perform the Work and for any other

noncompliance under this Consent Decree.

e. A stipulated penalty of $ 1000.00 per day per violation shall accrue and shall be

payable to the United States by any Settling Cash Defendant for its failure to make timely

payment of the amount payable by such Settling Cash Defendants under Section X V I

(Payment of Response Costs) of this Consent Decree, in addition to any Interest on such amounts

and such other remedies or sanctions available to Plaintiff.

72. In the event that E P A assumes performance of a portion or all of the Work

pursuant to Paragraph 85 of Section X X I (Covenants Not to Sue by Plaintiff), Settling Work

Defendants shall be liable for a stipulated penalty in the amount of $75,000.

73. A l l penalties shall begin to accrue on the day after the complete performance is

due or the day a violation occurs, and shall continue to accrue through the final day ofthe

correction of the noncompliance or completion of the activity. However, stipulated penalties


CONSENT DECREE - 60

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• |&TS1tilBia5S.^S//^»iViâ.

shall not accrue: (1) with respect tu = u « r c i c n i sxroimssion under Section X I (EPA Approval of

Plans and Other Submissions), during the period, i f any, beginning on the 31 st day after EPA's

receipt of such submission until the date that E P A notifies Settling Work Defendants of any

deficiency; (2) with respect to a decision by the Director of the Superfund Waste Management .

Division, EPA Region V , under Paragraph 67.b. or 68.a. of Section X I X (Dispute Resolution),

during the period, if any, beginning on the 21st day after the date that Settlmg Work Defendants'

reply to EPA's Statement of Position is received until the date that the Director issues a final

decision regarding such dispute; or (3) with respect to judicial review by this Court of any

dispute under Section X I X (Dispute Resolution), during the period, i f any, beginning on the 31st

day after the Court's receipt of the final submission regarding the dispute 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.

74. Following EPA's determination that Settling Work Defendants have failed to

comply with a requirement of this Consent Decree, EPA may give Settling Work Defendants

written notification of the same and describe the noncompliance. E P A may send the Settling

Work Defendants a written demand for the payment of the penalties. However, penalties shall

accrue as provided in the preceding Paragraph regardless of whether EPA has notified the

Settling Work Defendants of a violation.

75. A l l penalties accruing under this Section shall be due and payable to the United

States within 30 days of the Settling Work Defendants' receipt from EPA of a demand for

payment of the penalties, unless Settling Work Defendants invoke the Dispute Resolution United States v. Allied Waste Systems, et.al. Butterworth #2 Landfill Superfund Site CONSENT DECREE - 61 -

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20" ary Ha ant Cr

procedures under Section X I X (Dispute Resolution). A l l payments to the 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:

USEPA Superfund Accounting. Office P.O. Box 70753 Chicago, Illinois 60673

and shall indicate that the payment is for stipulated penalties, and shall reference the E P A Region

and Site/Spill ID #MID06222297, the DOJ Case Number 90-11-3-145A, and the name and

address qf 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

X X V I (Notices and Submissions).

76. The payment of penalties shall not alter in any way Settling Work Defendants'

obligation to complete the performance ofthe Work required under this Consent Decree.

77. Penalties shall continue to accrue as provided in Paragraph 73 during any dispute

resolution period, but need not be paid until the following:

a. If the dispute is resolved by agreement or by a decision of E P A that is not

appealed to this Court, accrued penalties determined to be owing shall be paid to EPA within 15

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

b. If the dispute is appealed to this Court and the United States prevails in

whole or in part, Settling Work Defendants shall pay all accrued penalties determined by the

Court to be owed to EPA within 60 days of receipt of the Court's decision or order, except as

provided in Subparagraph c below;

United States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site '


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c. If the District Coxirrs aecisidnis appealed by any Party, Settling Work

Defendants shall pay all accrued penalties determined by the District Court to be owing to the

United States into an interest-bearing escrow account within 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 60 days. Within 15 days of receipt of the final appellate court decision, the escrow agent

shall pay the balance of the account to EPA or to Settling Work Defendants to the extent that

they prevail.

- 78. a. If Settling Work Defendants fail to pay stipulated penalties when due, the "

United States may institute proceedings to collect the penalties, as well as interest. Settling

Work Defendants 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 Work Defendants' violation of this Decree or of the statutes and

regulations upon which it is based, including, but not limited to, penalties pursuant to Section

122(1) of CERCLA. Provided, however, that the United States shall not seek civil penalties

pursuant to Section 122(1) of C E R C L A for any violation for which a stipulated penalty is

provided herein, except in the case of a willful violation of the Consent Decree.

79. 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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80. a. In consideration ofthe actions that will be performed by the Settling Work

Defendants and Settling Owner Defendants under the terms of the Consent Decree, and except as

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

not to sue or to take administrative action against Settling Work Defendants and Settling Owner

Defendants pursuant to Sections 106 and 107(a) of C E R C L A and Section 7003 of R C R A

relating to the Site. Except with respect to future liability, these covenants not to sue shall take

effect upon the entry of the Consent Decree by the Court. With respect to future liability, these

covenants not to sue shall take effect upon Certification of Completion of Remedial Action by

E P A pursuant to Paragraph 50.b of Section X I V (Certification of Completion). These covenants

not to sue are conditioned upon the satisfactory performance by Settling Work Defendants of

their obligations under this Consent Decree. These covenants not to sue extend only to the

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

b. In consideration of the payments that will be made by each Settling Cash

Defendant under the terms of the Consent Decree, and except as specifically provided in

Paragraphs 81, 82, and 84 of this Section, the United States covenants not to sue or to take

administrative action against Settling Cash Defendants pursuant to Sections 106 and 107(a) of

C E R C L A and Section 7003 of R C R A relating to the Site. Except with respect to future liability,

these covenants not to sue shall take effect upon the entry of the Consent Decree by the Court.

With respect to future liability, these covenants not to sue shall take effect upon Certification of

Completion of Remedial Action by E P A pursuant to Paragraph 50.b of Section XIV


CONSENT DECREE - 64

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(Certification of Completion). These covenants hot to sue are conditioned upon the satisfactory

performance by Settling Cash Defendants of their obligations under this Consent Decree. These

covenants not to sue extend only to the Settling Cash Defendants and do not extend to any other

person.

81. United States' Pre-certification Reservations. Notwithstanding any other

provision of this Consent Decree, the United States reserves, and this Consent Decree is without

prejudice to, the right to institute proceedings in this action or in a new action, or to issue an

administrative order seeking to compel Settling Work Defendants (1) to perform further response

actions relating to the Site or (2) to reimburse the United States for additional costs of response

if, prior to Certification of Completion of the Remedial Action:

(i) conditions at the Site, previously unknown to 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.

82. United States' Post-certification Reservations: Notwithstanding any other

provision of this Consent Decree, the United States reserves, and this Consent Decree is without

prejudice to, the right to institute proceedings in this action or in a new action, or to issue an

administrative order seeking to compel Settling Work Defendants (1) to perform further response

actions relating to the Site or (2) to reimburse the United States for costs of response (other than

EPA oversight costs) if, subsequent to Certification of Completion of the Remedial Action:



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(i) conditions at the aire, previously unknown to EPA, are discovered, or

(ii) information, previously unknown to EPA, is received, in whole or in part,

and these previously unknown conditions or this information together with other relevant

information indicate that the Remedial Action is not protective of human health or the

environment.

83. For purposes of Paragraph 81, the information and the conditions known to EPA

shall include only that information and those conditions known to E P A as of the effective date of

. this Consent Decree and set forth in the administrative record. For purposes of Paragraph 82, 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.

84. General reservations of rights as to Settling Defendants.

The covenants not to sue set forth above do not pertain to any

matters other than those expressly specified in Paragraph 80. 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:

(1) claims based on a failure by Settling Defendants to meet a requirement of

this Consent Decree;



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

disposal, release, or threat of release of Waste Materials

outside of the Site;

(3) liability for future disposal of Waste Material at the Site, other than as

provided in the ROD, the Work, or otherwise ordered by EPA;

(4) liability for damages for injury to, destruction of, or

loss of natural resources, and for the costs of any natural resource

damage assessments; . . .

(5) criminal liability;

(6) liability for violations of federal or state law

which occur during or after implementation of the Remedial Action;

(7) with respect to Settling Work Defendants only, 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 12 (Modification ofthe Remedial Design

Document or Related Work Plans); and

(8) with respect to Settling Work Defendants only, liability for Future

Response Costs pursuant to Paragraph 54 c.

85. Work Takeover In the event EPA determines that Settling Work Defendants have

ceased implementation of any portion of the Work, are seriously or repeatedly deficient or late in


CONSENT DECREE - 67

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their performance of the Work, or are implementing the Work in a manner which may cause an.

endangerrnent to human health or the environment, EPA may assume the performance of all or

any portions of the Work as EPA determines necessary. Settling Work Defendants may invoke

the procedures set forth in Section X I X (Dispute Resolution), Paragraph 67, to dispute EPA's

determination that takeover of the Work is warranted under this Paragraph. Costs incurred by the

United States in performing the Work pursuant to this Paragraph shall be considered Future

Response Costs that Settling Work Defendants shall pay pursuant to Section X V I

(Reimbursement of Response Costs).

86. Notwithstanding any other provision of this Consent Decree, the United States

retains all authority and reserves all rights to take any and all response actions authorized by law.

XXII . COVENANTS B Y SETTLING DEFENDANTS

87. Covenant Not to Sue. Subject to the reservations in Paragraph 88, Settling

Defendants hereby covenant not to sue and agree not to assert any claims or causes of action

against the United States with respect to the Site, Past 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. § 9507) through

C E R C L A Sections 106(b)(2), 107, 111, 112, 113 or any other provision of law;

b. any claims against the United States, including any department, agency or

instrumentality of the'United States under C E R C L A Sections 107 or 113 related to the Site, or


CONSENT DECREE 68 -

IIIIIIIIII IIIIIIIIIII™ 20140926-0080117

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.

88. 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 wongful 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, i f 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. § 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 Work Defendants' plans or activities. The foregoing applies only to

claims which are brought pursuant to any statute other than C E R C L A and for which the waiver

of sovereign immunity is found in a statute other than C E R C L A .

89. Settling Defendants agree not to assert any claims and to waive all claims or

causes of action that they may have for all matters relating to the Site, including for contribution,

against any person where the person's liability to Settling Defendants with respect to the Site is

based solely on having arranged for the disposal or treatment, or for transport for disposal or

United States v. Allied Waste Systems, e t . a l . Butterworth #2 Landfill Superfund Site CONSENT DECREE - 69

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treatment, of hazardous substances attne site or naving accepted tor transport for disposal or

treatment of hazardous substances at the Site, if

a. Any materials contributed by such person to the Site constituting,Municipal Solid

Waste (MSW) or Municipal Sewage sludge (MSS) did not exceed 0.2% of the total volume of

waste at the Site; and

b. Any materials contributed by such person to the Site containing hazardous

substances, but. not constituting M S W or MSS, did not exceed the greater of (i) 0.002% of the

total volume of waste at the Site, or (ii) 110 gallons of liquid materials or 200 pounds of solid

materials.

This waiver shall not apply to any claim or cause of action against any person meeting the

above criteria i f EPA has determined that the materials contributed to the Site by such person

contributed or could contribute significantly to the costs of response at the Site.

90. Nothing in this Consent Decree shall be deemed to constitute preauthorization of

a claim within the meaning of Section 111 of C E R C L A , 42 U.S.C. § 9611, or 40 C.F.R.

§ 300.700(d).

XXIII. EFFECT OF SETTLEMENT: CONTRIBUTION PROTECTION

91. Except as provided in Paragraph 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. Except as provided

in Paragraph 89 each of the Parties expressly reserves any and all rights (including, but not



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limited to, any right to contribution), defenses, claims, demands, and causes of action which each

Party may have with respect to any matter, transaction, or occurrence relating in any way to the

Site against any person not a Party hereto.

92. The Parties agree, and by entering this Consent Decree this Court finds, that the

Settling Defendants are entitled, as of the effective date of this Consent Decree, to protection

from contribution actions or claims as provided by C E R C L A Section 113(f)(2), 42 U.S.C.

§ 9613(f)(2) for Matters Addressed in this Consent Decree.

93. The Settling Defendants agree that with respect to any suit or claim for-

contribution brought by them for matters related to this Consent Decree they will notify the

United States in writing no later than 60 days prior to the initiation of such suit or claim.

94. The Settling Defendants also agree that with respect to any suit or claim for

contribution brought against them for matters related to this Consent Decree they will notify in

writing the United States within 10 days of service of the complaint on them. In addition,

Settling Defendants shall notify the United States within 10 days of service or receipt of any

Motion for Summary Judgment and within 10 days of receipt of any order from a court setting a

case for trial.

95; In any subsequent administrative or judicial proceeding initiated by the United

States for injunctive relief, recovery of response costs, or other appropriate relief relating to the

Site, Settling Defendants shall not assert, and may not maintain, any defense or claim based upon

the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or

other defenses based upon any contention that the claims raised by the United States in the


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subsequent proceeding were or should have been brought mlBe 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).

X X I V . ACCESS TO INFORMATION •

96. Settling Defendants 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 shall also make available to EPA, for purposes of investigation, information

gathering, or testimony, their employees, agents, or representatives with knowledge of relevant

facts concerning the performance of the Work.

97. a. Settling Defendants may assert business confidentiality claims covering part or

all of the documents or information submitted to Plaintiff under this Consent Decree to the extent

permitted by and in accordance with Section 104(e)(7) of C E R C L A , 42 U.S.C. § 9604(e)(7), and

40 C.F.R. § 2.203(b). Documents or information determined to be confidential by EPA will be

afforded 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 E P A or i f EPA has notified

Settling Work Defendants that the documents or information are not confidential under the

standards of Section 104(e)(7) of C E R C L A , the public may be given access to such documents

or information without further, notice to Settling Defendants.


CONSENT DECREE - 72

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b. The Settling Defendants may- a 0 3 C i r orac ccnam aoramcnxs. records and other

information are privileged under the attorney-client privilege or any other privilege recognized

by federal law. If the Settling Defendants assert such a privilege in lieu of providing documents,

they shall provide the Plaintiff with the following: (1) the title ofthe document, record, or

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

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

recipient; (5) a description of the contents of the document, record, or information: and (6) the

privilege asserted by Settling Work 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.

98. No claim of confidentiality shall be made with respect to any data, including, but

not limited to, all sampling, analytical, monitoring, hydro geologic, scientific, chemical, or *

engineering data, or any other documents or information evidencing conditions at or around the

Site.

X X V . RETENTION OF RECORDS

99. a. Until 10 years after the Settling Defendants' receipt of EPA's notification

pursuant to Paragraph 51 .b of Section X I V (Certification of Completion ofthe Work), each

Settling Defendant shall preserve and retain all records and documents now in its possession or

control or which come into its possession or control that relate in any manner to the performance

of the Work or liability of any person for response actions conducted and to be conducted at the

Site, regardless of any corporate retention policy to the contrary. Until 10 years after the Settling


CONSENT DECREE - 73

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Defendants' receipt of EPA's notification pursuant to Paragraph 51.b of Section XIV

(Certification of Completion), Settling Defendants shall also instruct their contractors and agents

to preserve all documents, records, and information of whatever kind, nature or description

relating to the performance of the Work.

100. At the conclusion of this document retention period, Settling Defendants shall

notify the United States at least 90 days prior to the destruction of any such records or

documents, and, upon request by the United States, Settling Defendants shall deliver any such

records or documents to EPA. The Settling Defendants may assert that certain documents,

records and other information are privileged under the attorney-client privilege or any other

privilege recognized by federal law. If the Settling Defendants assert such a privilege, they shall

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

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

document, record, or information; (4) the name and title of each addressee and recipient; (5) a

description of the subject ofthe 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.

101. Each Settling Defendant hereby certifies 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

liability regarding the Site since notification of potential liability by the United States or the State


CONSENT DECREE - 74

f

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or the filing of suit against it regarding toe OTTC ana mar it nas lully complied with any and all

E P A requests for information pursuant to Sections 104(e) and 122(e) of C E R C L A , 42 U.S.C.

§§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927.

X X V I . NOTICES A N D SUBMISSIONS

102. 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.. A l l 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, and the Settling Defendants respectively.

As to the United States:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044 Re: DOJ 90-11-3-145A As to EPA

Director, Superfund Division United States Environmental Protection Agency Region V 77 W. Jackson Ave (Mail Code SR-6J) Chicago, IL 60604


CONSENT DECREE - 75

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Dion Novak Kent Cnty MI Rgstr 09/26/2014 SEAL

EPA Project Coordinator United States Environmental Protection Agency Region 5 77 W. Jackson Ave (Mail Code SR-6J) Chicago, IL 60604

As to the State:

Robert L . Franks Superfund Section Environmental Response Section Michigan Department of Environmental Quality Knapps Centre PO Box 30426 Lansing, MI 48909-7926 (517) 335-3392

As to the Settling Work Defendants:

Linda Hicken RMT, Inc. 744 Heartland Trail Madison, W l 53717

As to the Settling Cash Defendants:

The persons identified as designated agents for service of process for each Settling Cash Defendant on the corresponding signature page to this Consent Decree.

As to Settling Owner Defendants:

The persons identified as designated agents for service of process for each Settling Owner Defendant on the corresponding signature page to this Consent Decree.



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X X V I I EFFECTIVE D A T E

103. 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

104. This Court retains jurisdiction over both the subject matter of this Consent Decree

and the Settling Defendants 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 X I X (Dispute Resolution) hereof.

X X I X . APPENDICES

105. The following appendices are attached to and incorporated into this Consent

Decree:

"Appendix A " is the ROD.

"Appendix B" is the Statement of Work (SOW).

"Appendix C" is the October 1998 Explanation of Significant Differences, as amended

on December 23, 1998.

"Appendix D" is the description and/or map of the Site.

"Appendix E" is the complete list of the Settling Defendants.


CONSENT DECREE - 77

20 40926-0080117 : Mary HoUinrake P;94/120 11:57AM


X X X . COTvIMUMTTRELATIOT^S

106. Settling Work Defendants shall propose to E P A their participation in the

community relations plan to be developed by EPA. E P A wil l determine the appropriate role for

the Settling Work Defendants under the Plan. Settling Work Defendants shall also cooperate

with EPA in providing information regarding the Work to the public. As requested by EPA,

Settling Work 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 E P A to

explain activities at or relating to the Site.

X X X I . MODIFICATION

107. Schedules specified in this Consent Decree for completion of the Work may be

modified by agreement of EPA and the Settling Work Defendants. A l l such modifications shall

be made in writing.

108. Except as provided in Paragraph 13 ("Modification of the Remedial Design

Document 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 the

Court. Prior to providing its approval to any modification, the United States will provide the

State with a reasonable opportunity to review and comment on the proposed modification.

Modifications to the SOW that do not materially alter that document may be made by written

agreement between EPA, after consultation with the State, on the proposed modification, and the

Settling Work Defendants.


CONSENT DECREE - - 7 8

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109. Nothing in this Decree Srrau xictsmctt X C T and ai\^ \ôxtrt's power to enforce,

supervise or approve modifications to this Consent Decree.

XXXII . LODGING A N D OPPORTUNITY FOR P U B L I C C O M M E N T

110. 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

C E R C L A , 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to

withdraw or withhold its consent i f the comments regarding the Consent Decree disclose facts or

. considerations which indicate that the Consent Decree is inappropriate, improper, or inadequate.

Settling Defendants consent to the entry of this Consent Decree without further notice.

111. 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

112. Each undersigned representative of a Settling Defendant to this Consent Decree

and the Assistant Attorney General of Environment and Natural Resources Division of the

Department of Justice certifies that 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.

113. Each 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 in writing that it no longer supports entry of the Consent Decree.


CONSENT DECREE - 79

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114. Each Settling Defendant snail identity, on me 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 respect to all matters arising under or relating, to this Consent Decree.

Settling Defendants hereby agree to accept service in that manner and to waive the formal

service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any

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

SO ORDERED THIS D A Y OF ,19. .

United States District Judge


CONSENT DECREE - 80

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THE UNDERSIGNED ?A^^%^R£l^'^Jl£L^cree in the matter of United States v. Allied Waste Systems, Inc, et al., (W.D. Michigan), relating to the Butterworth Landfill Superfund Site.

FOR THE UNITED STATES OF A M E R I C A

Date: LOIS J. SCHIFFER Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice . Washington, D.C. 20530

K A R E N E. TORRENT Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044-7611

M I C H A E L DETTMER United States Attorney for the Western District of Michigan

Dated: W. F R A N C E S C A FERGUSON Assistant United States Attorney For the Western District of Michigan P.O. Box 208 Grand Rapids, Michigan 49501-0208 (616)456-2404

United States v. Allied (faste Systems, e t . a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE - 81

Date:

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WILLIAM E. M U N O Director, Superfund Division, Region V U.S. Environmental Protection Agency 77 West Jackson Chicago, Illinois 60604

SEAN M U L R O N E Y LESLIE K I R B Y Assistant Regional Counsels U.S. Environmental Protection Agency 77 West Jackson Boulevard

Chicago, Illinois 60604


CONSENT DECREE - 82

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THE UNDERSIGNED PAR I IbS enter into this Consent Decree in the matter of United States v. Allied Waste Systems, Inc.et al., (W.D. Michigan), relating to the Butterworth Landfill Superfund Site.

FOR C O M P A N Y , INC.

Date: [Name ~ Please Type] [Title — Please Type] [Address ~ Please Type]

Agent Authorized to Accept Service on Behalf of Above-signed Party:

Name: [Please Type] Title: Address: Tel. Number


CONSENT DECREE - 83

IN T H E U N I T E D STATES DISTRICT C O U R T F O R T H E W E S T E R N DISTRICT OF M I C H I G A N

S O U T H E R N DIVISION

U N I T E D STATES OF A M E R I C A ,

Plaintiff,

ALLIED WASTE SYSTEMS, INC. et al.,

Defendants.

20140926-0080117 Mary HoUinrake PM00/120 11:57AM Kent Cnty MI Rgstr09/26/2014 SEAL

C I V I L ACTION NO.

C O N S E N T D E C R E E

APPENDICES

Appendix A: Record of Decision (ROD)

Appendix B: Statement of Work (SOW)

Appendix C: October 1998 Explanation of Significant Differences, as amended on December 23,1998.

Appendix D: Map of the Site

Appendix E: List of Settling Defendants

E.1. Settling Cash Defendants

E.2. Settling Owner Defendants

E.3." Settling Work Defendants

United States v. Allied Waste Systems, Inc.,et a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE

APPENDIX A : Record of Decision (ROD)

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United States v. Allied Butterworth #2 Landfill CONSENT DECREE

Waste Systems, Xnc.,et a l . Superfund Site

Appendix B: Statement pf Work (SOW)

20 Tdaaoa' "A'A'Ji'lS I HI ll

United States v. Allied Waste Systems, Inc., et a l . Butterworth #2 Landfill Superfund Site CONSENT DECREE

Appendix C: October 1998 Explanation of Significant Differences , as amended on December 23,1998.

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United States v. Allied Waste Systems, I n c . e t a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE

A P P E N D I X D: Map ofthe Butterworth Landfi l l No. 2 Superfund Site

IIIIIIII IIIIIIIIIIII l i l l l l l l l l l 20140926-0080117


United States v. Allied Waste Systems, Inc., et a l . Butterworth #2 Landfill Superfund Site

CONSENT DECREE

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APPENDIX E : LIST OF S E T T L I N G DEJFK^DATSTS""' "

1. Settling Cash Defendants

American Premier Underwriters, Inc. (f/k/a The Penn Central Corporation)

Amway Corporation

BASF Corporation, successor in interest to Inmont Corporation

Bemis Company, Inc. (on behalf of Sackner Products)

Bissell, Inc. (for itself, Imperial Business Forms and Michigan Tag Company)

Blackmer-Dover Resources Company (f/k/a Blackmer Pump Company)

Building Repair of Grand Rapids Inc.

C. Stoddard & Sons

Dayton Walther Corporation ( on behalf of Wolverine Brass Company)

Evans Tempcoh, Inc.

Gallmeyer & Livingston Co.

Haviland Products Company

Ingersoll-Rand Company (on behalf of Clark Equipment Company and Tyler Refrigeration Corporation)

Keebler Company

La-2-Boy, Inc. (on behalf of Rose Manufacturing Company)

Lilly Industries, Inc. (for Guardsman Products, Inc.)

Mannesmann Dematic Rapistan Corporation (for Rapistan Demag Corp.)

Master Lock Company (f/k/a Dexter Lock Company)

Master Finish Company

United States v. Allied Waste Systems, Inc., et al. Butterworth #2 Landfill Superfund Site

CONSENT DECREE

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Monarch Hydraulics, Inc. Owens-Corning Fiberglass Corporation

Plastic Plate Inc., a division of,Lacks Enterprises Inc.

Pridgeon & Clay Inc.

Reliance Finishing Company ( f/k/a National Plating Company)'

Ryder Truck Rental (f/k/a Atlas Rent-A-Truck)

State Heat Treat, Inc.

The Goodyear Tire and Rubber Company

Viacom International, Inc. (on behalf of Furniture City Manufacturing Company and Furniture City Plating Company)

2. Settling Owner Defendants

City of Grand Rapids

Consumers Energy Company (formerly Consumers Power Company)

3. Settling Work Defendants

Allied Waste Systems, Inc.

City of Grand Rapids

CSX Transportation, Inc.

Consumers Energy Company (formerly Consumers Power Company)

DaimlerChrylser Corporation (for Kelvinator)

United States v. Allied Waste Systems, Inc.,et al. Butterworth #2 Landfill Superfund Site CONSENT DECREE

UP Jll'il i l l ill I'll III'ill ill ill11 1 A / r t r t. 2M4M26~0080117

General Motors Corporation M a r y H o l l i n r a k e P : 1 0 7 / 1 2 0 i i * ? ™ Kent Cnty MI Rgstr09/26/2014 SEflL

Metromedia International Group, Inc.(for American Seating Company) Rowe International, Inc.

Tenneco Packaging, Inc. (For Packaging Corporation of America)

Steelcase Inc. (For Steelcase Inc, Attwood Brass (currently known as Attwood Corporation) and Stow and Davis)

Wickes Manufacturing Company (on behalf of Michigan Plating & Stamping Company,-a/k/a Michigan Bumper Company, and on behalf of Crampton Manufacturing Company).

Waste. Management of Michigan, Inc., on behalf of itself, United Waste, Folkertsma Refuse Service, Kamps Bros. Refuse Inc., Industrial Disposal Comp., Chemical Waste Management, Able Sanitation, and on behalf of but without admitting liability for Pete's Disposal and Wilson's Disposal., for purposes of this agreement only, hereinafter, "Waste Management." Waste Management does not include United Sanitation, or United Collection Systems of Grand Rapids.

White Consolidated IndustrieSj Inc. (for Kelvinator)

Wolverine World Wide Inc.

United States v. Allied Waste Systems, Inc.,et al. Butterworth #2 Landfill Superfund Site

CONSENT DECREE

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STATEMENT OF WORK FOR THE REMEDIAL ACTION

BUTTERWORTH #2 LANDFILL SITE

GRAND RAPIDS, KENT COUNTY, MICHIGAN

I . PURPOSE

The purpose o f t h i s Statement o f Work (SOW) i s t o s e t f o r t h r e q u i r e m e n t s f o r i m p l e m e n t a t i o n o f t h e r e m e d i a l a c t i o n s e t f o r t h i n t h e R e c o r d o f D e c i s i o n (ROD), and f u r t h e r d e f i n e d i n t h e Amended Remedial D e s i g n P r o j e c t P l a n (ARDPP). The ROD was s i g n e d by t h e R e g i o n a l A d m i n i s t r a t o r o f t h e U n i t e d S t a t e s E n v i r o n m e n t a l P r o t e c t i o n Agency (EPA) R e g i o n V on September 29, 1992, f o r t h e B u t t e r w o r t h #2 L a n d f i l l S i t e ( S i t e ) . On October 23, 1998,.U.S. EPA approved t h e E x p l a n a t i o n o f S i g n i f i c a n t D i f f e r e n c e s (ESD) t h a t amended t h e ROD t o i n c l u d e g r o u n d w a t e r - s u r f a c e w a t e r i n t e r f a c e c r i t e r i a and r e q u i r e m e n t s f o r a s o i l c o v e r o v e r the R a d i o Tower and S t a t i o n B u i l d i n g a r e a ( S e e Attachment A ) . The S e t t l i n g D e f e n d a n t s s h a l l f o l l o w t h e ROD, t h e ESD, t h e SOW., t h e approved R e m e d i a l D e s i g n Work P l a n , t h e ARDPP, the approved R e m e d i a l A c t i o n Work P l a n , EPA Sup e r f u n d Remedial D e s i g n and Reme d i a l A c t i o n Guidance and any a d d i t i o n a l guidance p r o v i d e d by EPA i n s u b m i t t i n g d e l i v e r a b l e s f o r i m p l e m e n t i n g t h e r e m e d i a l a c t i o n a t • t h e S i t e .

I I . DESCRIPTION OF THE REMEDIAL ACTION/PERFORMANCE STANDARDS

S e t t l i n g D e f e n d a n t s s h a l l meet the f o l l o w i n g performance s t a n d a r d s and s p e c i f i c a t i o n s f o r t h e r e m e d i a l a c t i o n a t t h i s s i t e .

1. I n s t i t u t i o n a l C o n t r o l s • •

I n s t i t u t i o n a l c o n t r o l s i n c l u d e r e s t r i c t i o n s t o c o n t r o l f u t u r e . development o f t h e l a n d f i l l a r e a and t o p r o h i b i t -the i n s t a l l a t i o n o f w a t e r s u p p l y w e l l s w i t h i n an a r e a around t h e s i t e t o be d e f i n e d i n c o n s u l t a t i o n w i t h t h e EPA and t h e M i c h i g a n Department o f E n v i r o n m e n t a l Q u a l i t y (MDEQ). T h i s a r e a w i l l be d e f i n e d i n th e Remedial A c t i o n work p l a n s u b m i t t a l , as r e q u i r e d under S e c t i o n V o f t h i s SOW.

2. E s t a b l i s h A l t e r n a t e C o n c e n t r a t i o n L i m i t s

M i x i n g zone based g r o u n d w a t e r - s u r f a c e w a t e r i n t e r f a c e (GSI) c r i t e r i a w i l l be used as the A l t e r n a t e C o n c e n t r a t i o n L i m i t s (ACL) f o r groundwater a t the s i t e . These c r i t e r i a were d e v e l o p e d f o r t h i s s i t e u nder Michigan'.s P a r t 201 program and t h e i r development

1

mil> 2 ¥ l 4 0 9 2 6 - M 8 0 1 1 7 1

s h a l l r e p l a c e the methodology f o r e s t a b l i s h i n g - A C L s t h a t was s p e c i f i e d i n t h e ROD. I n a d d i t i o n , t h e ACL performance-m o n i t o r i n g program s p e c i f i e d i n t h i s SOW r e p l a c e s t h e s u r f a c e w a t e r , r i v e r sediment, and b i o l o g i c a l m o n i t o r i n g programs a l s o s p e c i f i e d i n t h e ROD.

.'The use o f m i x i n g zone based GSI c r i t e r i a as t h e ACLs f o r . groundwater a t the s i t e i s a p p r o p r i a t e because t h e GSI c r i t e r i a a r e a more d i r e c t measure o f p o t e n t i a l a d v e r s e impacts o f t h e l a n d f i l l on s u r f a c e w a t e r t h a n the ACL methodology and m o n i t o r i n g programs t h a t a re s p e c i f i e d i n the ROD. A f t e r t h e i s s u a n c e o f the ROD, t h e GSI c r i t e r i a were d e v e l o p e d b y the S t a t e o f M i c h i g a n f o r t h e s p e c i f i c p u r p o s e o f e v a l u a t i n g p o t e n t i a l adverse i m p a c t s a s s o c i a t e d w i t h g r o u n d w a t e r v e n t i n g t o s u r f a c e w a t e r . These v a l u e s a r e r i s k - b a s e d c r i t e r i a t h a t were d e v e l o p e d t o p r o t e c t human h e a l t h and a q u a t i c l i f e ' . (See T a b l e 1) Three c r i t e r i a l i s t e d i n T a b l e 1 a r e not f i n a l i z e d f o r t h e s i t e . When, t h e s e t h r e e c r i t e r i a a r e f i n a l i z e d by t h e S t a t e o f M i c h i g a n f o r t h e s i t e , t h e y w i l l r e p l a c e t h e marked e n t r i e s .

3. Development and I m p l e m e n t a t i o n o f ACL Performance M o n i t o r i n g Program

The ACL performance m o n i t o r i n g program s h a l l be deve l o p e d and implemented t o en s u r e t h e c o n t i n u e d absence o f impact from t h e S i t e on the Grand R i v e r . T h i s m o n i t o r i n g program s h a l l be d e s i g n e d t o d e t e c t c o n t a m i n a n t s , changes i n contaminants c h a r a c t e r i s t i c s , i n c l u d i n g i n c r e a s e s and d e c r e a s e s i n hazardous s u b s t a n c e s , p o l l u t a n t s and contaminants i n t h e upper a q u i f e r a t and n e a r t h e s i t e .

ACL performance m o n i t o r i n g s h a l l i n c l u d e i n s t a l l a t i o n , c o l l e c t i o n o f samples and f i e l d and l a b o r a t o r y a n a l y s i s o f samples from 17 ACL w e l l l o c a t i o n s r e q u i r e d by the ROD, i n c l u d i n g a n e s t e d s e n t i n e l w e l l ' a t a minimum o f 4 ACL w e l l l o c a t i o n s , two t o f i v e a d d i t i o n a l GSI w e l l s s o u t h o f t h e RTSB a r e a , and t h r e e l e a c h a t e m o n i t o r i n g w e l l s i n t h e RTSB a r e a . These w e l l s w i l l be i d e n t i f i e d i n the R e m e d i a l A c t i o n Work p l a n s u b m i t t a l . A l t e r n a t e performance m o n i t o r i n g l o c a t i o n s f o r b i o l o g i c a l oxygen demand (BOD) and ammonia may be proposed i n t h e R e m e d i a l A c t i o n Workplan f o r c o m p l i a n c e p u r p o s e s .

Ground-water s h a l l be a n a l y z e d f o r o r g a n i c and i n o r g a n i c a n a l y t e s from EPA's Ta r g e t Compound L i s t and T a r g e t A n a l y t e L i s t (see

. T a b l e 3-2 o f the EPA ap p r o v e d RD workplan) q u a r t e r l y f o r a t l e a s t one (1) y e a r . At t h e end o f the one (1) y e a r p e r i o d , the Respondents may p e t i t i o n EPA t o mod i f y t h e groundwater m o n i t o r i n g network.

ACL performance m o n i t o r i n g s h a l l b e g i n and c o n t i n u e f o r t h i r t y (30) y e a r s a f t e r t h e c o m p l e t i o n o f c o n s t r u c t i o n o f the l a n d f i l l c o v e r a t the s i t e . A t t h e end o f the 30 y e a r m o n i t o r i n g p e r i o d ,

2

. 3 IIIIIII Ull|lli|l|< 20140926-008011'

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EPA s h a l l - determine the need t o ex t e n d t h e p e r i o d o f m o n i t o r i n g .

Groundwater Contingency P l a n I f , a t any ti m e , a d d i t i o n a l i n f o r m a t i o n i n d i c a t e s t h e groundw a t e r m o n i t o r i n g program s h o u l d be changed, EPA may r e q u i r e m o d i f i c a t i o n s t o the program. M o d i f i c a t i o n s , may i n c l u d e , but a r e no t l i m i t e d t o , a change i n t h e number o f ground-water m o n i t o r i n g w e l l s t o be sampled, i n s t a l l a t i o n o f a d d i t i o n a l ground-water m o n i t o r i n g w e l l s , change i n t h e s e l e c t e d l a b o r a t o r y p arameters a n d / o r the compounds and a n a l y t e s w h i c h s h a l l be m o n i t o r e d .

I f , a t any time,, the r e s u l t s o f t h e groundwater m o n i t o r i n g program i n d i c a t e t h a t t he co n t a m i n a n t s i n t h e a q u i f e r exceed t h e ACLs s p e c i f i e d i n Table 1 i n t h e 17'GSI w e l l s and t h e a d d i t i o n a l 2-5 GSI w e l l s i d e n t i f i e d i n t h e Remedial A c t i o n Work p l a n , Rspondents s h a l l i m m e d i a t e l y p r o c e e d w i t h - t h e a c t i o n s d e s c r i b e d i n t h e c o n t i n g e n c y p l a n , t o be s u b m i t t e d under S e c t i o n V o f t h i s SOW as p a r t o f the Remedial A c t i o n Work p l a n s u b m i t t a l . These a c t i v i t i e s s h a l l i n c l u d e a d d i t i o n a l s a m p l i n g t o v e r i f y t h e exceedance, a d d i t i o n a l groundwater assessment t o determine t h e s o u r c e , n a t u r e , and e x t e n t o f t h e exceedance, and c o r r e c t i v e a c t i o n s n e c e s s a r y t o m i t i g a t e . t h e impact o f an ACL exceedance on t h e Grand R i v e r o r a t h r e a t t o human h e a l t h and the environment. C o r r e c t i v e a c t i o n s i n c l u d e , but a r e n ot l i m i t e d t o , t he f o l l o w i n g :

• i d e n t i f i c a t i o n and removal o f a s o u r c e h o t s p o t , i n s t a l l a t i o n of s l u r r y w a l l s t o reduce o r e l i m i n a t e i n t e r a c t i o n between t h e groundwater and t h e Grand R i v e r , and/or i n s t a l l a t i o n o f a groundwater e x t r a c t i o n system. S e t t l i n g Defendants s h a l l submit d e s i g n documents f o r t h e proposed response a c t i o n f o r EPA r e v i e w and a p p r o v a l .

The t h r e e l e a c h a t e w e l l s d e s c r i b e d above w i l l n o t be p o i n t s o f com p l i a n c e . These w e l l s w i l l be used as s e n t i n e l m o n i t o r i n g p o i n t s t o a s s e s s t e m p o r a l changes i n l e a c h a t e q u a l i t y and h y d r a u l i c head. A t the n e s t e d GSI w e l l l o c a t i o n s . (MZ-10, MZ-11, MZ-21, MZ-22) , t h e w e l l i n t h e w e l l n e s t t h a t i s s c r e e n e d t h r o u g h the waste w i l l a l s o be a s e n t i n e l m o n i t o r i n g p o i n t , and not a p o i n t of compliance. I f a s a m p l i n g r e s u l t from any o f t h e t h r e e l e a c h a t e w e l l s , o r the n e s t e d GSI w e l l s c r e e n e d t h r o u g h t h e waste, exceeds the GSI c r i t e r i a s p e c i f i e d i n T a b l e 1, t h e n a d d i t i o n a l assessment o f w e l l s c r e e n l o c a t i o n s s h a l l be p e r f o r m e d t o ensure t h a t t h e GSI w e l l coverage i s adequate t o a c c u r a t e l y d e t e c t any m i g r a t i o n o f the exceedance from t h e s e n t i n e l w e l l s t o w a r d s the Grand R i v e r .

The d a t a f o r the GSI w e l l s s o u t h o f t h e RTSB a r e a (as i d e n t i f i e d i n t h e Remedial A c t i o n w o r k p l a n s u b m i t t e d p u r s u a n t t o S e c t i o n V of t h i s SOW). w i l l a l s o be use d t o ev a l u a t e - t h e adequacy o f t h e

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s o i l c o v e r o v e r t h e RTSB a r e a . I f ah exceedance o f an ACL, as l i s t e d i n T a b l e 1, i s i d e n t i f i e d i n any o f t h e s e w e l l s , S e t t l i n g D e f e n d a n t s s h a l l i m m e d i a t e l y p r o c e e d w i t h t h e a c t i o n s d e s c r i b e d i n t h e c o n t i n g e n c y p l a n , t o be s u b m i t t e d under S e c t i o n V o f t h i s SOW as p a r t o f the Remedial A c t i o n Work p l a n s u b m i t t a l . I f th e s e a c t i v i t i e s c o n f i r m t h i s exceedance, t h e n S e t t l i n g Defendants s h a l l c o v e r t h e RTSB a r e a w i t h a S t a t e o f M i c h i g a n A c t 641 c l a y cap, as d e s c r i b e d i n t h e ROD and t h i s SOW. I f ACL exceedances a r e c o n f i r m e d b e f o r e t h e s o i l c o v e r i s i n s t a l l e d , t h e n S e t t l i n g D e f e ndants s h a l l p l a c e t h e c l a y c o v e r o v e r t h e RTSB a r e a a t t h e same time as on the r e s t o f t h e l a n d f i l l .

4. L a n d f i l l Cover

As d e s c r i b e d i n t h e Amended RDPP and t h e ESD, a l a n d f i l l c o v e r w i l l be c o n s t r u c t e d t o cap a l l l a n d f i l l e d w a s t e s a t the s i t e o u t s i d e o f t h e Radio Tower and S t a t i o n B u i l d i n g (RTSB) a r e a . The c o v e r w i l l c o n s i s t o f , from t o p t o bottom:

A v e g e t a t i v e s o i l l a y e r c o n s i s t i n g o f a minimum o f 6 i n c h e s o f t o p s o i l . Seed and f e r t i l i z e r w i l l be a p p l i e d t o t h i s l a y e r t o e s t a b l i s h v e g e t a t i o n .

An 18 i n c h t h i c k r o o t i n g zone l a y e r . T h i s l a y e r w i l l p r o t e c t the u n d e r l y i n g compacted c l a y l a y e r from f r o s t p e n e t r a t i o n e x p e c t e d i n t h e Grand R a p i d s a r e a .

A l o w p e r m e a b i l i t y c l a y l a y e r , w i t h a minimum t h i c k n e s s ' o f 24 i n c h e s . T h i s l a y e r w i l l be c o n s t r u c t e d t o red u c e i n f i l t r a t i o n t h r o u g h the waste, as s e t f o r t h S o l i d Waste Management A c t 641 (1978), as amended, M i c h i g a n Code o f Laws (MCL) S e c t i o n s 299.401 t h r o u g h 299.436.

Respondents s h a l l p l a c e a s o i l c o v e r o v e r t h e RTSB are a , i d e n t i f i e d on F i g u r e 1. The s o i l c o v e r w i l l be a minimum o f 12 i n c h e s t h i c k , and w i l l i n c l u d e t h e f o l l o w i n g two l a y e r s :

• The lo w e r s i x i n c h e s w i l l c o n s i s t o f l e a n c l a y and s i l t y c l a y (approximate p e r m e a b i l i t y o f 4.0 x 10 (-7) cm/sec)

9 The upper s i x i n c h e s w i l l be a t o p s o i l l a y e r s u i t a b l e f o r growth o f a v e g e t a t i v e c o v e r ( a p p r o x i m a t e p e r m e a b i l i t y o f 7.2 x 10 (-4) cm/sec)

S e t t l i n g Defendants s h a l l ensure t h a t t h e v e g e t a t i v e growth e s t a b l i s h e d i n t h e upper t o p s o i l l a y e r s h a l l n o t impact t h e i n t e g r i t y o r p e r m e a b i l i t y of t h e l o w e r s i x i n c h l a y e r i n t h e RTSB a r e a .

The s l o p e o f t h e f i n a l c o v e r w i l l r e s u l t i n s u r f a c e water r u n o f f from t h e s i t e v i a s h e e t f l o w and c u l v e r t s t o t h e a d j a c e n t b o d i e s of w a t e r .

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O t h e r components o f the l a n d f i l l c o v e r system i n c l u d e the f o l l o w i n g , , as d e s c r i b e d i n t h e EPA approved RDPP:

L a n d f i l l gas management F l o o d w a y / f l o o d p l a i n p r o t e c t i o n Permanent e r o s i o n and s e d i m e n t a t i o n c o n t r o l s F u g i t i v e d u s t c o n t r o l s

Adequate n o i s e and dust s u p p r e s s a n t measures s h a l l be tak e n t o p r o t e c t t h e community from t h e e f f e c t s o f c o n s t r u c t i o n . Adequate measures s h a l l be employed t o p r o t e c t s u r f a c e w a t e r s from s i l t a t i o n d u r i n g c o n s t r u c t i o n and p o s t - c l o s u r e o f t h e l a n d f i l l .

5 . M i t i g a t i o n o f Wetland

The r e m e d i a l a c t i o n s h a l l implement any and a l l approved d e s i g n p l a n s t h a t a d d r e s s and m i t i g a t e any w e t l a n d s i m p a c t e d by a c t i v i t i e s a t t h e S i t e i n accordance w i t h a p p l i c a b l e law. These p l a n s are d e s c r i b e d i n S e c t i o n 3 . 3 o f t h e RDPP.

6. Drum Removal and D i s p o s a l

The r e m e d i a l a c t i o n s h a l l implement t h e approved drum c o n t i n g e n c y p l a n ( p l a n ) d e v e l o p e d as p a r t o f the d e s i g n (Appendix A o f . t h e S i t e H e a l t h and S a f e t y P l a n - S e c t i o n B o f Volume 2 o f the EPA approved RDPP). The p l a n i d e n t i f i e s p r o c e d u r e s f o r t h e h a n d l i n g and d i s p o s a l o f drums uncovered d u r i n g a c t i v i t i e s c onducted as' p a r t o f t h i s a c t i o n .

I I I . SCOPE OF REMEDIAL ACTION

The Remedial A c t i o n (RA) s h a l l c o n s i s t o f f i v e t a s k s . A l l p l a n s • ar e s u b j e c t t o EPA a p p r o v a l a f t e r c o n s u l t a t i o n w i t h t h e MDEQ.

Task 1: Amended Remedial D e s i g n P r o j e c t P l a n Task 2: Remedial A c t i o n Work P l a n Task 3: Remedial A c t i o n / C o n s t r u c t i o n

A. P r e c o n s t r u c t i o n I n s p e c t i o n and M e e t i n g

B. P r e - f i n a l I n s p e c t i o n

C. F i n a l I n s p e c t i o n

D. R e p o r t s

1. C o m p l e t i o n o f C o n s t r u c t i o n R e p o r t 2 . C o m p l e t i o n of R emedial A c t i o n R e p o r t 3 . C o m p l e t i o n o f Work Report 4. P r o g r e s s R e p o r t s

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E. Community R e l a t i o n s Support

Task 4: O p e r a t i o n and Maintenance Task 51 Performance M o n i t o r i n g

Task 1: Amended Remedial Design P r o j e c t P l a n s

T h i s p l a n i n c o r p o r a t e s a s o i l c o v e r o v e r t h e Ra d i o Tower and S t a t i o n B u i l d i n g (RTSB) Area, as i d e n t i f i e d i n F i g u r e 1, and a ' M i c h i g a n A c t 541 c o v e r o ver the o t h e r f i l l a r e a s .

The f o l l o w i n g s u p p o r t i n g p l a n s , w h i c h were i n c l u d e d i n t h e approved R e v i s e d F i n a l Remedial D e s i g n P r o j e c t P l a n ( F i n a l RDPP; F e b r u a r y 1998), a r e i n c l u d e d i n t h e ARDPP.

• F u g i t i v e Dust C o n t r o l and Ambient VOC M o n i t o r i n g P l a n • O p e r a t i o n and Maintenance P l a n ( f o r t h e l a n d f i l l c o v e r ,

s u r f a c e water c o n t r o l s , and t h e l a n d f i l l gas m o n i t o r i n g probes)

• S i t e H e a l t h and S a f e t y P l a n • Drum Co n t i n g e n c y P l a n .•. C o n s t r u c t i o n Q u a l i t y Assurance P r o j e c t P l a n

A p p l i c a b l e s e c t i o n s o f the approved Remedial D e s i g n Work p l a n (October 1995) w i l l be r e f e r e n c e d , i n c l u d i n g p a r t s o f t h e f o l l o w i n g :

* F i e l d Sampling and A n a l y s i s P l a n • Q u a l i t y A s s u r a n c e P r o j e c t P l a n

Task 2: Remedial A c t i o n Work P l a n

The S e t t l i n g Defendants s h a l l submit a d r a f t Remedial A c t i o n Work P l a n , which i n c l u d e s a d e t a i l e d d e s c r i p t i o n and s c h e d u l e f o r t h e r e m e d i a t i o n and c o n s t r u c t i o n a c t i v i t i e s , w i t h i n 45 days a f t e r l o d g i n g o f the-. Consent Decree. The S e t t l i n g Defendants s h a l l submit a RA Work P l a n i n accordance w i t h § V I and p a r a g r a p h 12 o f t h e Consent Decree and S e c t i o n V of t h i s SOW.

T h i s p l a n w i l l i n c l u d e , a t a minimum, t h e f o l l o w i n g :

• A d e s c r i p t i o n o f t h e s t r a t e g y f o r c o m p l e t i n g t h e c o n s t r u c t i o n a c t i v i t i e s

® A bar c h a r t s c h e d u l e f o r c o m p l e t i n g t h e c o n s t r u c t i o n a c t i v i t i e s

• -A d e s c r i p t i o n o f t h e s t r a t e g y f o r i m p l e m e n t i n g the o p e r a t i o n , maintenance, and m o n i t o r i n g a c t i v i t i e s

• A schedule f o r implementing t h e o p e r a t i o n , maintenance, and m o n i t o r i n g a c t i v i t i e s

• The sche d u l e f o r d e l i v e r a b l e s and o t h e r p r o j e c t m i l e s t o n e s ,

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, as c o n t a i n e d i n S e c t i o n V o f t h i s SOW * • I d e n t i f i c a t i o n o f any s u b s t a n t i v e p e r m i t r e q u i r e m e n t s needed

t o implement t h e r e m e d i a l a c t i o n and t h e s c h e d u l e f o r a d d r e s s i n g t h e s e r e q u i r e m e n t s

•» P r e l i m i n a r y i d e n t i f i c a t i o n o f t h e RA p r o j e c t team • D e l i n e a t i o n o f t h e a r e a around the l a n d f i l l i n w h i c h w a t e r

s u p p l y w e l l i n s t a l l a t i o n w i l l be p r o h i b i t e d

The work p l a n s h a l l a l s o i n c l u d e an ACL per f o r m a n c e m o n i t o r i n g p l a n i n c l u d i n g , a t a minimum, t h e f o l l o w i n g : '

• I n s t a l l a t i o n and s a m p l i n g and a n a l y s i s p r o c e d u r e s f o r a l l new g r o u n d w a t e r / s u r f a c e water- i n t e r f a c e (GSI) w e l l s , i n c l u d i n g t h e 17 ACL w e l l l o c a t i o n s and t h e two t o f i v e a d d i t i o n a l GSI w e l l s s o u t h o f t h e RTSB a r e a .

• I n s t a l l a t i o n and s a m p l i n g and a n a l y s i s p r o c e d u r e s f o r t h r e e l e a c h a t e m o n i t o r i n g w e l l s i n the RTSB a r e a .

• A l i s t o f the- m i x i n g zone based GSI c r i t e r i a ( i . e . t h e ACLs) t h a t have been e s t a b l i s h e d f o r t h e B u t t e r w o r t h s i t e by t h e S t a t e o f M i c h i g a n

• A data e v a l u a t i o n p l a n t o a s s e s s c o m p l i a n c e w i t h t h e ACLs and t o e v a l u a t e t h e adequacy o f t h e s o i l c o v e r o v e r the RTSB area

• An o p e r a t i o n and maintenance p l a n f o r t h e groundwater and l e a c h a t e m o n i t o r i n g w e l l s

• A c o n t i n g e n c y r e s p o n s e p l a n , as d e s c r i b e d above, t o ad d r e s s exceedances o f t h e ACLs

• A c o r r e c t i v e a c t i o n p l a n t o m i t i g a t e e xceedances o f the ACLs

• A p p l i c a b l e s e c t i o n s o f the approved Remedial D e s i g n Work p l a n w i l l be r e f e r e n c e d , i n c l u d i n g p a r t s o f t h e f o l l o w i n g : •

• F i e l d S a m p l i n g and A n a l y s i s P l a n •• Q u a l i t y A s s u r a n c e P r o j e c t P l a n

Task 3; Remedial A c t i o n C o n s t r u c t i o n

The S e t t l i n g D e f e n d a n t s s h a l l implement t h e R e m e d i a l A c t i o n as d e t a i l e d i n t h e EPA app r o v e d ARDPP. The f o l l o w i n g a c t i v i t i e s s h a l l be completed i n c o n s t r u c t i n g vthe R e m e d i a l A c t i o n .

A. P r e c o n s t r u c t i o n i n s p e c t i o n and me e t i n g

The S e t t l i n g D e f e n d a n t s s h a l l p a r t i c i p a t e w i t h t h e EPA i n a p r e c o n s t r u c t i o n i n s p e c t i o n and meeting t o :

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^ ^ ^ ^ ^ ^

1.-Review methods f o r documenting and r e p o r t i n g - i n s p e c t i o n d a t a ;

2. Review methods f o r d i s t r i b u t i n g and s t o r i n g documents and r e p o r t s ;

3. Review work a r e a s e c u r i t y and s a f e t y p r o t o c o l ;

4. D i s c u s s any a p p r o p r i a t e m o d i f i c a t i o n s , o f the c o n s t r u c t i o n q u a l i t y assurance, p l a n t o e n s u r e t h a t s i t e - s p e c i f i c c o n s i d e r a t i o n s a re addressed,- and,

5. Conduct a S i t e w a l k - a r o u n d t o v e r i f y t h a t t h e d e s i g n c r i t e r i a , p l a n s , and s p e c i f i c a t i o n s a r e u n d e r s t o o d and t o r e v i e w m a t e r i a l and equipment s t o r a g e l o c a t i o n s .

The S e t t l i n g D e f e n d a n t s s h a l l document t h e p r e - c o n s t r u c t i o n i n s p e c t i o n and meeting and s h a l l t r a n s m i t a summary t o a l l p a r t i e s .

B. P r e - f i n a l i n s p e c t i o n

W i t h i n f i f t e e n (15) days a f t e r S e t t l i n g D e f e n d a n t s make a p r e l i m i n a r y d e t e r m i n a t i o n t h a t t h e r e m e d i a l , a c t i o n c o n s t r u c t i o n i s complete, the S e t t l i n g D e f e n d a n t s s h a l l n o t i f y t h e EPA f o r t h e p u r p o s e s o f c o n d u c t i n g a p r e - f i n a l i n s p e c t i o n . The p r e - f i n a l i n s p e c t i o n i s r e q u i r e d t o demonstrate c o n s t r u c t i o n i s co m p l e t e and c o n s i s t e n t w i t h t h e ap p r o v e d Amended RDPP. The p r e - f i n a l i n s p e c t i o n s h a l l c o n s i s t o f a w a l k - t h r o u g h i n s p e c t i o n o f t h e e n t i r e S i t e w i t h EPA. Any o u t s t a n d i n g c o n s t r u c t i o n i t e m s d i s c o v e r e d d u r i n g t h e i n s p e c t i o n s h a l l be i d e n t i f i e d and n o t e d by t h e S e t t l i n g D efendants. The S e t t l i n g Defendants s h a l l p r e p a r e t h e p r e - f i n a l i n s p e c t i o n r e p o r t . T h i s r e p o r t s h a l l o u t l i n e t h e o u t s t a n d i n g items r e q u i r e d t o r e s o l v e i t e m s , c o m p l e t i o n d a t e f o r t h e s e i t e m s , and a pr o p o s e d d a t e f o r f i n a l i n s p e c t i o n .

C. F i n a l i n s p e c t i o n

W i t h i n f i f t e e n (15) days a f t e r c o m p l e t i o n of any work i d e n t i f i e d i n t h e p r e - f i n a l i n s p e c t i o n r e p o r t , t h e S e t t l i n g D e f e n d a n t s s h a l l n o t i f y the EPA f o r t h e p u r p o s e s o f c o n d u c t i n g a f i n a l i n s p e c t i o n . The f i n a l i n s p e c t i o n s h a l l c o n s i s t o f a w a l k - t h r o u g h i n s p e c t i o n o f t h e S i t e by EPA and t h e S e t t l i n g D efendants. The S e t t l i n g D e fendants s h a l l p r e p a r e t h e f i n a l i n s p e c t i o n r e p o r t . T h i s r e p o r t s h a l l be used as a c h e c k l i s t w i t h t h e f i n a l i n s p e c t i o n f o c u s i n g on the o u t s t a n d i n g i t e m s i d e n t i f i e d i n t h e p r e - f i n a l i n s p e c t i o n . S e t t l i n g D e f e n d a n t s s h a l l submit a w r i t t e n r e p o r t s h o w i n g c o m p l e t i o n o f any o u t s t a n d i n g items i d e n t i f i e d i n the. p r e - f i n a l i n s p e c t i o n r e p o r t .

D. R e p o r t s

1. Completion o f C o n s t r u c t i o n R e p o r t

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S e t t l i n g Defendants s h a l l submit t h e C o m p l e t i o n - o f C o n s t r u c t i o n R e p o r t t o U.S.. EPA and. t h e S t a t e o f M i c h i g a n when remedy-c o n s t r u c t i o n i s complete, b u t performance s t a n d a r d s have n o t y e t been a t t a i n e d .

W i t h i n 60 days o f a s u c c e s s f u l f i n a l i n s p e c t i o n , S e t t l i n g D e f e n d a n t s s h a l l submit a C o m p l e t i o n o f C o n s t r u c t i o n Report t o EPA and t h e S t a t e o f M i c h i g a n . I n t h e r e p o r t , a r e g i s t e r e d p r o f e s s i o n a l e n g i n e e r and t h e S e t t l i n g Defendants' p r o j e c t c o o r d i n a t o r s h a l l c e r t i f y t h a t t h e Remedial A c t i o n has been c o n s t r u c t e d i n accordance w i t h t h e approved Amended RDPP. The w r i t t e n r e p o r t s h a l l i n c l u d e a s - b u i l t drawings s i g n e d and stamped by. a p r o f e s s i o n a l e n g i n e e r . The r e p o r t s h a l l c o n t a i n t h e f o l l o w i n g s t atement, s i g n e d by a r e s p o n s i b l e - c o r p o r a t e o f f i c i a l o f a S e t t l i n g Defendant o r t h e S e t t l i n g Defendants' P r o j e c t C o o r d i n a t o r :

"To t h e b e s t o f my knowledge, a f t e r t h o r o u g h i n v e s t i g a t i o n , I c e r t i f y t h a t t h e i n f o r m a t i o n c o n t a i n e d i n o r accompanying t h i s s u b m i s s i o n i s t r u e , a c c u r a t e and complete. I am aware t h e r e a r e s i g n i f i c a n t p e n a l t i e s f o r s u b m i t t i n g f a l s e i n f o r m a t i o n , i n c l u d i n g t h e p o s s i b i l i t y o f • f i n e and imprisonment f o r knowing v i o l a t i o n s . "

2. C o m p l e t i o n o f RA Re p o r t

S e t t l i n g Defendants s h a l l submit t h e C o m p l e t i o n o f Remedial A c t i o n R e p o r t t o U.S. EPA and t h e S t a t e o f M i c h i g a n when remedy c o n s t r u c t i o n i s complete, performance s t a n d a r d s have been a t t a i n e d , and where O&M r e q u i r e m e n t s w i l l c o n t i n u e t o be per f o r m e d .

W i t h i n 45 days a f t e r r e c e i v i n g the a n a l y t i c a l d a t a f o r t h e e i g h t h ACL performance m o n i t o r i n g e v e n t , o r sooner i f a l l o f t h e perf o r m a n c e c r i t e r i a are met- f o r f o u r c o n s e c u t i v e q u a r t e r s , S e t t l i n g Defendants s h a l l submit a C o m p l e t i o n o f Rem e d i a l A c t i o n R e p o r t t o EPA and t h e S t a t e o f M i c h i g a n . I n t h e r e p o r t , a r e g i s t e r e d p r o f e s s i o n a l e n g i n e e r and th e S e t t l i n g D e f e n d a n t s ' P r o j e c t C o o r d i n a t o r s h a l l c e r t i f y t h a t t h e Remedial A c t i o n has been completed i n f u l l s a t i s f a c t i o n o f t h e r e q u i r e m e n t s o f t h i s Consent Decree. The w r i t t e n r e p o r t s h a l l i n c l u d e a s - b u i l t d r a w i n g s s i g n e d and stamped by a p r o f e s s i o n a l e n g i n e e r . The r e p o r t s h a l l c o n t a i n the f o l l o w i n g s t a t e m e n t , s i g n e d by a r e s p o n s i b l e c o r p o r a t e o f f i c i a l o f a S e t t l i n g Defendant o r t h e S e t t l i n g Defendants' P r o j e c t C o o r d i n a t o r :

"To t h e b e s t ' o f my knowledge, a f t e r t h o r o u g h i n v e s t i g a t i o n , I c e r t i f y t h a t t h e i n f o r m a t i o n c o n t a i n e d i n o r accompanying t h i s s u b m i s s i o n i s t r u e , a c c u r a t e and complete. I am aware t h e r e a r e s i g n i f i c a n t p e n a l t i e s f o r s u b m i t t i n g f a l s e i n f o r m a t i o n , i n c l u d i n g t h e p o s s i b i l i t y o f f i n e and imprisonment f o r knowing v i o l a t i o n s . "

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.3. • C o m p l e t i o n of Work Rep o r t .'

S e t t l i n g Defendants s h a l l submit t h e C o m p l e t i o n o f Work R e p o r t t o U.S.-'EPA and the S t a t e o f M i c h i g a n when remedy c o n s t r u c t i o n i s complete, performance s t a n d a r d s have been a t t a i n e d , and 0 & M i s complete.

As i d e n t i f i e d i n p a r a g r a p h 50 o f t h e Consent Decree, S e t t l i n g Defendants s h a l l submit a C o m p l e t i o n o f Work R e p o r t . I n t h e r e p o r t , a r e g i s t e r e d p r o f e s s i o n a l e n g i n e e r and t h e S e t t l i n g

'Defendants' P r o j e c t C o o r d i n a t o r s h a l l c e r t i f y t h a t t h e R e m e d i a l A c t i o n has been completed i n f u l l s a t i s f a c t i o n o f t h e . req u i r e m e n t s o f t h i s Consent Decree. The w r i t t e n r e p o r t s h a l l i n c l u d e a s - b u i l t drawings s i g n e d and stamped by a p r o f e s s i o n a l e n g i n e e r . The r e p o r t s h a l l c o n t a i n t h e f o l l o w i n g s t a t e m e n t , s i g n e d by a r e s p o n s i b l e c o r p o r a t e o f f i c i a l • o f - a S e t t l i n g Defendant o r the S e t t l i n g D e f e n d a n t s " P r o j e c t C o o r d i n a t o r :

"To t h e b e s t o f my knowledge, a f t e r thorough) i n v e s t i g a t i o n , I c e r t i f y t h a t the i n f o r m a t i o n c o n t a i n e d i n o r accompanying t h i s s u b m i s s i o n i s t r u e , a c c u r a t e and complete. I am aware t h e r e a r e s i g n i f i c a n t p e n a l t i e s f o r s u b m i t t i n g f a l s e i n f o r m a t i o n , i n c l u d i n g the p o s s i b i l i t y o f f i n e and imprisonment f o r knowing v i o l a t i o n s . "

4. . P r o g r e s s R e p o r t s

S e t t l i n g Defendants s h a l l , a t a minimum, p r o v i d e EPA and t h e S t a t e o f M i c h i g a n w i t h s i g n e d m o n t h l y p r o g r e s s r e p o r t s d u r i n g t h e c o n s t r u c t i o n phase and, a t a.minimum, q u a r t e r l y p r o g r e s s r e p o r t s d u r i n g o p e r a t i o n and maintenance a c t i v i t i e s , c o n t a i n i n g . -

a. A d e s c r i p t i o n and e s t i m a t e o f t h e p e r c e n t a g e o f RA c o m p l e t e d ; b. Summaries o f a l l f i n d i n g s ; c. Summaries o f a l l changes made d u r i n g t h e r e p o r t i n g p e r i o d ; d. Summaries o f a l l c o n t a c t s w i t h r e p r e s e n t a t i v e o f t h e l o c a l

community, p u b l i c i n t e r e s t g roups o r S t a t e government d u r i n g t h e RA r e p o r t i n g p e r i o d ;

e. Summaries o f a l l problems, o r p o t e n t i a l p r oblems e n c o u n t e r e d d u r i n g the r e p o r t i n g , p e r i o d ;

f . A c t i o n s b e i n g t a k e n t o r e c t i f y p r o b l e m s ; g. Changes i n p e r s o n n e l d u r i n g t h e r e p o r t i n g p e r i o d , i n c l u d i n g .

q u a l i f i c a t i o n s ,-h. P r o j e c t e d work f o r t h e next r e p o r t i n g p e r i o d ; .and I . Copies o f d a i l y r e p o r t s , , i n s p e c t i o n r e p o r t s , l a b o r a t o r y - and

m o n i t o r i n g d a t a .

Any changes i n p e r s o n n e l d u r i n g t h e r e p o r t i n g p e r i o d s h a l l be s u b j e c t t o r e v i e w and a p p r o v a l b y EPA, i n c o n s u l t a t i o n w i t h t h e S t a t e o f M i c h i g a n .

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: E. Community R e l a t i o n s Support ., . . • *

The U. S. EPA, i n c o n s u l t a t i o n w i t h t h e State- o f M i c h i g a n , s h a l l implement a community r e l a t i o n s p l a n . S e t t l i n g D e f endants s h a l l c o o p e r a t e w i t h . t h e EPA and the S t a t e o f M i c h i g a n b y p a r t i c i p a t i n g i n t h e . p r e p a r a t i o n o f a l l a p p r o p r i a t e i n f o r m a t i o n d i s s e m i n a t e d t o th e p u b l i c and i n p u b l i c meetings t h a t may be h e l d o r s p o n s o r e d by t h e EPA t o e x p l a i n a c t i v i t i e s a t o r c o n c e r n i n g t h e S i t e .

Task 4; O p e r a t i o n and Maintenance

The S e t t l i n g Defendants s h a l l implement t h e O p e r a t i o n and Maintenance (0 & M) P l a n f o r t h e l a n d f i l l c o v e r , s u r f a c e w a t e r r u n o f f c o n t r o l s , and l a n d f i l l gas s y s t e m s - t h a t i s i n c l u d e d i n t h e F i n a l RDPP.. As n e c e s s a r y , m o d i f i c a t i o n s t o t h e 0..& M P l a n s as a r e s u l t of c o n s t r u c t i o n a c t i v i t i e s , w i l l be s u b m i t t e d a t the same t i m e as the C o m p l e t i o n o f C o n s t r u c t i o n R e p o r t .

Task 5: Performance M o n i t o r i n g

The performance c r i t e r i a f o r groundwater a r e t h e ACLs l i s t e d i n T a b l e 1. Compliance w i t h t h e s e performance c r i t e r i a w i l l be e v a l u a t e d by S e t t l i n g Defendants a t the GSI w e l l s and w i l l be -conducted i n accordance w i t h S e c t i o n I I . 3 o f t h i s SOW and t h e Remedial A c t i o n Work P l a n .

Performance m o n i t o r i n g f o r s o i l gas w i l l be p e r f o r m e d i n accordance w i t h t h e O p e r a t i o n and Maintenance P l a n , w h i c h w i l l b e i n c l u d e d i n the Amended RDPP t o be s u b m i t t e d by S e t t l i n g Defendants under S e c t i o n V o f t h i s SOW.

IV. CONTENT OF SUPPORTING PLANS

The EPA approved ARDPP w i l l i n c l u d e t h e f o l l o w i n g s u p p o r t i n g p l a n s : •

1. F u g i t i v e Dust C o n t r o l and Ambient VOC M o n i t o r i n g P l a n 2. O p e r a t i o n and Maintenance P l a n ( f o r t h e l a n d f i l l c o v e r ,

s u r f a c e w a t e r c o n t r o l s , and t h e l a n d f i l l gas m o n i t o r i n g system) .

3. S i t e H e a l t h and S a f e t y P l a n 4. Drum C o n t i n g e n c y P l a n 5 . C o n s t r u c t i o n Q u a l i t y A s surance P l a n

The s a m p l i n g and a n a l y s e s a c t i v i t i e s t o be p e r f o r m e d d u r i n g t h e r e m e d i a l a c t i o n c o n s t r u c t i o n w i l l be p e r f o r m e d i n a c c o r d a n c e w i t h t h e F i e l d Sampling P l a n and Q u a l i t y A s s u r a n c e P r o j e c t P l a n c o n t a i n e d i n the EPA approved Remedial D e s i g n Work p l a n ( O c t o b e r 1995). Sampling a c t i v i t i e s d u r i n g c o n s t r u c t i o n would i n c l u d e , b u t n o t be l i m i t e d t o , s a m p l i n g and a n a l y s i s o f t h e u n d e r l y i n g n a t i v e s o i l i n a r e a s where the t h i c k n e s s o f t h e waste i s f o u n d t o

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be .thin..and t h e waste i s r e c o n s o l i d a t e d i n t o o t h e r f i l l a r e a s t h a t w i l l be capped w i t h c l a y .

V. SUMMARY OF MAJOR DELIVERABLES/SCHEDULE

A summary o f t h e p r o j e c t s c h e d u l e and r e p o r t i n g r e q u i r e m e n t s c o n t a i n e d i n t h i s SOW i s p r e s e n t e d below:

S u b m i s s i o n Due Date

1. D r a f t Amended R e m e d i a l Design P r o j e c t P l a n s

10 days a f t e r l o d g i n g o f the Consent Decree

2. F i n a l ARDPP 20 days a f t e r ' r e c e i p t of EPA comments on t h e D r a f t ARDPP

D r a f t RA Work p l a n 45 days a f t e r l o d g i n g o f t h e Consent Decree

4. F i n a l RA Work P l a n 20 days a f t e r r e c e i p t of EPA comments on D r a f t RA Work P l a n

5. Award RA C o n t r a c t ( s )

6. P r e - C o n s t r u c t i o n I n s p e c t i o n And M e e t i n g

7. I n i t i a t e C o n s t r u c t i o n o f RA

T h i r t y (3 0) days a f t e r EPA a p p r o v a l o f F i n a l RA work p l a n

F i f t e e n (15) days a f t e r Award o f RA C o n t r a c t ( s )

F i f t e e n (15) days a f t e r the P r e - C o n s t r u c t i o n I n s p e c t i o n and M e e t i n g , o r upon e n t r y of t h e Consent. Decree,- w h i c h e v e r i s l a t e r

8. C o m p l e t i o n o f C o n s t r u c t i o n I n a c c o r d a n c e w i t h t h e EPA's approved RA c o n s t r u c t i o n s c h e d u l e

9. P r e - F i n a l I n s p e c t i o n No l a t e r t h a n f i f t e e n (15) days a f t e r c o m p l e t i o n o f c o n s t r u c t i o n

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10. - P r e - F i n a l I n s p e c t i o n Report

11. F i n a l I n s p e c t i o n

12. F i n a l I n s p e c t i o n Report

13. O & M P l a n Addendum

14. C o m p l e t i o n o f C o n s t r u c t i o n R e p o r t

15. Completion o f Remedial A c t i o n Report

16. C o m p l e t i o n o f Work Report

F i f t e e n ^(15) days - a f t e r , ,:

c o m p l e t i o n o f p r e - f i n a l . i n s p e c t i o n

F i f t e e n (15) days a f t e r c o m p l e t i o n o f work i d e n t i f i e d i n p r e - f i n a l i n s p e c t i o n r e p o r t

15 days a f t e r c o m p l e t i o n o f f i n a l I n s p e c t i o n

60 days a f t e r " ' c o m p l e t i o n o f f i n a l i n s p e c t i o n

60 days a f t e r c o m p l e t i o n o f f i n a l i n s p e c t i o n

F o r t y f i v e (45) days a f t e r r e c e i v i n g t h e a n a l y t i c a l d a t a f o r t he e i g h t h q u a r t e r l y ACL performance m o n i t o r i n g e v e n t , o r sooner, i f a l l o f t h e p e r f o r m a n c e c r i t e r i a a r e met f o r f o u r c o n s e c u t i v e q u a r t e r s

As i d e n t i f i e d i n p a r a g r a p h 50 o f t h e Consent Decree

13