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/ ^ ^ J ^ i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Q W f / ^ ^ REGION III

^ ^ • ^ ^ P f ^ Q \ ^ ^ Philadelphia, Pennsylvania 19103-2029 X-^^i/U^J 1650 Arch street

December 23, 2008

Robert W. Thomson Attomeyat Law Babst, Calland, Clements, & Zomni, P.C. Two Gateway Center Pittsburg, PA 15222.

Re:. Sharon Steel Farrell Works Site Administrative Order Settlement on Consent

Dear Mr. Thompson:

This letter is in response to your October 28, 2008 correspondence regarding the Administrative Order on Consent for Removal Response Action (AOC) EPA Region III has proposed to be executed by your client, Dunbar Asphalt Company, Inc., in connection with the Sharon Steel, Farrell Site. Under the terms of the AOC, Dunbar would be required to install an impervious cap on its property to address surface, subsurface, and groundwater contamination on and underlying the property. In addition, the AOC would require Dunbar to make a commitment to impose certain land use restrictions on its property in the future to ensure the long terin effectiveness of the work performed under the AOC.'

Before addressing the specific issues raised in your letter, it is important to note that discussions between Dunbar and the Agency began in August, 2006 after Dunbar received the Notice of Potential Liability letter dated June 14, 2006 from the Agency. At that time, EPA advised Dunbar to retain legal counsel. Dunbar declined to, until retaining you in October 2008. As a result, the Remedial Project Manager included me in some of the discussions with your client until receiving notice that Dunbar had retained counsel.

The discussions that predated your involvement in this matterjtook place over the course of several months. Dunbar requested that the Agency consider a number of modifications to the proposed AOC concerning reducing the area were the cap was to be applied and /or the material to be used. At Dunbar's behest, EPA evaluated a number of proposals including: 1) the use of gravel and/or aggregate for the cap, 2) the application of the biosolids cap proposed for OU1 on a portion of its property, 3) exempting areas^ where Dunbar had previously applied asphalt, and 4) excluding the area containing the aggregate piles. ' ^

The Agency evaluated the various options Dunbar suggested, expending considerable time and resources reviewing supplemental information Dunbar provided and consulting with toxicologists, geologists, and hydrologists as necessary to evaluate each request: EPA Technical

' Although the Record of Decision (ROD) for 0U2 has not yet been issued, the studies that have been performed at the Site have included an evaluation of 0U2, which is referred to as the Northern Slag Pile Area.

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Personnel rejected proposals numbered 1 and 4 referenced above because they did not prevent infiltration of the contaminants of concern into the groundwater. Dunbar rejected proposal number 2 upon receipt of costs estimates for the application of the biosolid cap on its property. EPA Technical Personnel rejected the remaining proposal, 3, because Dunbar was unable to specify the location of the area previously capped and EPA was unable to verify its location through visual inspection.

With respect to your October 28, 2008 correspondence, you enumerated five (5) substantive comments on the AOC, provided suggested language modifications, and requested an extension of time for the completion of certain tasks urider the AOC. First, with respect to the substantive comments, EPA Technical Personnel have compiled responses to the questions that are primarily technical in nature (Comments 1, 2, 3, and 4) as well as the question raised during our November 7, 2008 teleconference as outlined in your November 13, 2008 e-mail message to Mr. Roming. The Technical Responses are included as Attachment 1 to this letter.

EPA's response to the remaining substantive question (Comment 5) regarding the exposure Dunbar will have for cost recovery claims after it signs the AOC is multi-fold. Under CERCLA, persons liable for contamination include all current and former^ ovmers and operators of the Site and parties that arranged for, or contributed to, the disposal or treatment of hazardous substances on the Site. Therefore, even owners who did not cause or contribute to the contamination may be held liable.

As an equitable matter, the Agency will certainly take into consideration the value of any work Dunbar would perform under the AOC. Still, decisions regarding future cost recovery activity with respect to Dunbar will require Department of Justice (DOJ) concurrence. At this juncture it is premature for the Agency to make a recommendation to DOJ with respect to fiature cost recovery activity with respect to this Site. Moreover, removal orders are intended to be negotiated and implemented quickly and attempting to settle costs recovery claims as part of the negotiation process will delay the implementation of the work. Thus, it is long-standing Region III practice to handle cost recovery settlement issues separate and after the removal work is underway.

Nonetheless, during the most recent teleconference conducted on November 7, 2008 between representatives of EPA and Dunbar, Dunbar expressed concern regarding its financial capability to implement the work proposed under the AOC. Therefore, EPA will evaluate

^ Sharon Steel, the party that previously owned and operated the Site and generated the waste disposed there is defunct. The United States filed a proof of clairn in the bankruptcy proceeding. Although the United States recovered a portion of its cost through the bankruptcy proceeding, the bulk of the United States claim was considered a general unsecured claim. Thus, a number of secured creditors were given priority over the United States' claim. Consequently, the United States' recovery in the Bankruptcy proceeding was a mere percentage of its actual and projected costs.

^ Dunbar Asphalt Products, Inc. may also have liability based upon its possible affiliation with Dunbar Slag Company, Inc., a former operator at the Site.

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Dunbar's ability to finance the work contemplated under the AOC andhave a financial expert perform an ability to pay (ATP) analysis. Should Dunbar wish to proceed with the ATP analysis, your client is required to submit the documents/information identified in Attachment 2 of this letter within twenty (20) business days from your receipt of this correspondence. Please advise your client to clearly mark any information that is Confidential Business Information and thereafter forward the information to my attention.

Concerning the suggested language modifications, the language modifications denoted in your correspondence as 1, 2, 3, 4 and 7 are acceptable to EPA. Similarly, the language suggestion denoted 5, is acceptable to EPA with minor editing. These revisions have been incorporated into the draft AOC, a copy of which is included as an enclosure to this letter.

Finally, EPA will accommodate any reasonable time extensions to the schedules currently contained in the draft AOC, but reserves making a determination on the appropriateness of any extension until the specific tasks have been identified.

Please contact me by January 7, 2209 so that we can discuss this response and develop a process and schedule going forward.

Verytruly yours,

V / •

cc: R. Mathur

Attachments 1. EPA Technical Responses 2. Information and Documents for Financial Analysis

Enclosure

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Attachment I Remedial Project Mdnaeer's Technical Response to Comments on Administrative

Order on Consent, Dated October 28, 2008, Submitted by Robert Thomson, Counsel for Dunbar Asphalt Products, Inc., with respect to the Sharon Steel Farrell Works Site

Question 1 from Dunbar Asphalt:

We are confused about the reference to non-cancer hazards of immediate concern to Dunbar workers. The risk assessment referred to was for Operable Unit 1 (OUl), not Operable Unit 2 (0U2). In contrast to many of the parcels in OUl, where slag is on the surface and even being processed, the Dunbar Site has for over 20 years had non-slag materials placed over the slag. As a consequence, none of the Dunbar workers are employed on areas where they would have direct exposure to slag or sludge Waste, which is what is referred to in the risk assessment. In addition, it does not appear that a separate Feasibility Study Report or Proposed Plan for 0U2 were done as stated in the Focused Feasibility Study Report (FFSR) of June 2006 and Record of Decision (ROD) of November 2006.

Environmental Protection Agency (EPA) Response to Comment 1:

The human health risk assessment included cancer risk and hazard index calculations based on data generated from samples collected from both OUl and 0U2 (Northern Slag Pile Area). The samples collected from the Dunbar property showed contamination which resulted in an • unacceptable risk. Non-cancer hazards were determined to be a concern for current site workers due to ingestion and inhalation of dust and dermal contact with aluminum, iron, manganese and vanadium in 0U2 soils. In addition, there is potential concern for acute effects due to inhalation of dusts containing arsenic, barium, nickel, and vanadium from this area. EPA has visually inspected the Dunbar Property to observe if any portion of the property is covered with "non-slag" material as Dunbar has stated in its letter. However, there was no visible evidence of any type of cover that exists on the Dunbar property.

With respect to second part of the question, a separate Feasibility Study (FS) was completed for 0U2 in September 2007. Based on a comparison of the identified potential alternatives to the 7 evaluation criteria mandated by the National Contingency Plan, the 0U2 FS concluded that a remedy which included an asphalt cap over exposed slag would be the most optimal.

Question 2 from Dunbar Asphalt:

There is no Attachment A so Dunbar cannot adequately evaluate the EPA proposal. Obviously, the total area to be capped is a critical determinant.

EPA Response to Comment 2:

< The entire Dunbar Property, approximately (27) twenty-seven acres, requires the cap.

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Question 3 from Dunbar Asphalt:

The topic of institutional controls is deferred. At various times in the past Ms. Mathur has referred to access easements, conservation easements, maintenance of vegetation, and possible deed restrictions. Dunbar needs to know the answers to questions about institutional controls before entering into an agreement.

EPA Response to Comment 3: '

EPA is unable to provide final answers to these questions at this time. The institutional controls for the Dunbar property are not included in the Sharon Steel Administrative Settlement and Order on Consent (ASOC) because they will be included in the future in the Record of Decision (ROD) for Operable Unit OU-2. However, EPA anticipates that the institutional controls for PU2 ROD may include: ^

D Fencing to prevent unauthorized access to contaminated areas.

D Warning signage to inform the public of the nature of the site and risk of trespassing.

D Deed restrictions prohibiting the use of shallow groundwater at the site.

D Restrictions on certain property uses that would adviersely affect the remedy.

Question 4 from Dunbar Asphalt:

The issue of what type of cap is required is still unresolved. Initially, EPA proposed covering an exposed area with six inches of aggregate. This sounded reasonable and feasible. Subsequently, the agency started talking about asphalt and gravel, much more expensive materials. Any use of these materials should be kept at a minimum.

EPA Response to Comment 4:

EPA has, in prior phone conversations, stated that aggregate was not an appropriate cap material for the Dunbar Asphalt property because the permeability of the aggregate is too high. The purpose of the cap is to prevent direct contact with the metals contamination found in the slag and reduce the migration of the metals contamination found in the slag to the groundwater. The use of aggregate would not reduce the infiltration of the metal contaminants found in the slag and migration of the contamination to the groundwater would continue. One of the main factors in considering the asphalt material was based on the fact that Dunbar is an asphalt company and EPA believes that asphalt would be best material to use on the property given the cost and technical considerations. EPA additionally, asked Dunbar Asphalt to provide aerial survey of where the asphalt piles will be placed^and how many asphalt piles there are. EPA evaluated the aerials and stated to Dunbar Asphalt that the asphalt piles can not act as a cap because infiltration of metals still penetrates the groundwater. --

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Technical Question from November 7, 2008 Teleconference:

Can the acidity from the limestone piles on the Dunbar Asphalt property stop the infiltration of metals into the groundwater?

EPA Response to Question from November 7,2008 Teleconference:

It may be possible that the limestone piles could reduce the migration of metals to the ground­water. However, without further study it would be impossible to determine if the limestone piles could stop the infiltration of metals to the groundwater; However, the primary risk to the Dunbar Asphalt workers at the property is due to the ingestion and inhalation of dust containing metals from the slag material. The secondary concern is the infiltration of metals into the groundwater from the slag. The infiltration of the metals into the groundwater would not address the inhalation risk of metals in the slag to the workers. Therefore, EPA believes the most appropriate material would be an asphalt cap placed on the Dunbar property to address both the inhalation and groundwater migration pathways.

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Attachment 2

Information Request for Ability to Pay Analysis for Dunbar Asphalt Products, Inc.

1. Please briefly describe the nature of Dunbar Asphalt Products' business (i.e., products, customers, approximate number of employees).

2. Please provide signed copies of federal corporate income tax returns for the three most recent years. Please provide all schedules and attachments, including any consolidating schedules.

3. Please provide audited Financial Statements for the most three recent years, complete with balance sheet, income statement, statement of cash flows, detailed schedules or statements (if prepared), notes, and auditor's opinion. If audited statements are not prepared, unaudited statements are acceptable. Finally, if the company does not prepare formal financial statements, the year-end income statement and balance sheet for the most recent three years is acceptable. If the statements are prepared on a consolidated basis, provide copies of all consolidating schedules.

4. Please provide internal financial statements (i.e., income statement, balance sheets, statement of cash flow) showing Dunbar's monthly and year-to-date results for each

, month, staring with the most recent month available (e.g., December 2008) and going back 12 months. If the statements are prepared on a consolidated basis, provide copies of all consolidating schedules.

5. If available, please provide any documents that are already in existence that relate to Dunbar's ftiture financial performance, including budgets, projected financial statements, and/or loan applications.

6. For each of Dunbar's five most highly compensated employees, officers and any shareholder employed by Dunbar, please: a) name each employee, officer, and shareholder; b) state his or her title and describe his or her duties; c) state his or her total compensation (salary, bonus, perquisites) in each of the last three years; and d) state whether the person is a shareholder and the percentage of time devoted to Dunbar by this person.

7. Please describe any dividends paid or other distributions (other than payments covered by question 6) made by Dunbar to its shareholders or shareholders' relatives since June 2006. For any such dividend or payment, please describe the date, the reason for the payment, and the total amount of the dividend or payment.

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8. Regarding Dunbar's debts, including loans owed to shareholders, but not including trade debts: a. Please provide all documents reflecting the terms of each loan and advance,

including loan agreements, commitment letters, lines of credit, guarantees, hens, and security agreements. Please provide the complete version of each document, with all schedules, attachments, and addendums.

b. Please state the amount currently owed with respect to each debt. c. If a written agreement for any debt does not exist, please briefly describe the debt,

including: (1) the lender, (ii) the interest rate, (iii) the repayment schedule, (iv) whether addifional sums may be obtained by Dunbar or its affiliates under any oral agreement or understanding related to the debt, (v) the date the debt was incurred, (vi) any associated collateral and/or guarantees, (vii) covenants, (viii) late payment provisions, and (ix) if not already provided, the amount currently owed.

9. Please describe any significant transactions involving Dunbar in the last three years including asset sales, asset purchases, major loans, mergers, and stock sales.

10. Please describe all entities affiliated with Dunbar, and describe any transactions that have occurred between Dunbar and its affiliates within the last three years. For purposes of this question, affiliates include: a) entities owned in whole or in part by Dunbar, b) entities that have substantially the same legal or beneficial ownership as Dunbar, c) entities directed or managed by persons who are either themselves directors or officers of Dunbar, or who are related to directors or officers of Dunbar. EPA believes Dunbar's affiliates may include Dunbar Asphalt LLC and Erie Enterprises, Inc. a. For each affiliate identified, please briefly describe the nature of the relationship

between Dunbar and the affiliate.

11. Please explain why Dunbar Asphalt Products, Inc. is unable to pay for the site work prescribed by EPA. Please also state the maximum amount the company believes it is capable of paying without rendering it unable to pay for ordinary and necessary expenses.

12. Please provide any additional information that the company believes supports its claim that it cannot afford to pay any portion of the cost of the site work sought by EPA without suffering undue financial hardship. •

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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

IN THE MATTER OF:

Sharon Steel Farrell Works Superfund Site, Mercer County, PA

Dunbar Asphalt Products, Inc. : Docket No. Respondent

Proceeding Under Sections 106(a) and 122(a) of the Comprehensive Environmental Response, Compen­sation, and Liability Act of 1980, as amended.

ADMINISTRATIVE SETTLEMENT AND ORDER ON CONSENT FOR REMOVAL RESPONSE ACTION

The parties to this Administrative Settlement and Order on Consent ("Settlement Agreement") Dunbar Asphalt Products, Inc. ("Respondent") and the United States Environmental Protection Agency ("EPA"), having agreed to the entry of this Settlement Agreement, it is therefore Ordered, that:

I. JURISDICTION AND GENERAL PROVISIONS

1.1 This Settlement Agreement is issued pursuant to the authority vested in the President of the United States by Sections 106(a) and 122(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. §§ 9606(a) and 9622(a); delegated to the Administrator of EPA by Executive Order No. 12580, 52 Fed. Reg. 2923 (January 29, 1987); and further delegated to the Director of the Hazardous Site Cleanup Division, EPA Region III. This Settlement Agreement pertains to a parcel of property designated as part of Operable Unit 2 ("OU-2") of the Sharon Steel Farrell Works Superftind Site ("Site"), located at Ohio Street in Mercer County, Pennsylvania. This parcel is the "Dunbar Asphalt Products, Inc." parcel ("Dunbar Parcel") and is further described in Paragraph 3.2 below.

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side cast down embankments or piled into large mounds on the Site in several areas adjacent to the western side of the Shenango River. From 1949 to 1981, millions of gallons of acids (hydrochloric, sulfuric, and chromic) and oils were disposed at the Site by pouring these solutions onto the hot slag. This practice caused heavy metals to leach into the groundwater. In 1992, operafions at the facility and disposal at the Site ceased when the Sharon Steel Corporation filed for protection under the United States Bankruptcy Code.

3.4 The heavy metals referred to in paragraph 3.3 above were byproducts from the former Sharon Steel Corporation operations and consisted of arsenic, nickel, barium, aluminum, vanadium, and manganese. These substances are hazardous substances as defined in Section 101(14) of CERCLA, 42 U.S.C 39601(14) and at 40 C.F.R. §302.4.

3.5 The Site was listed on the Superfund National Priorities List on July 28, 1998.: This is a Fund-lead Site and EPA performed the remedial invesfigafion and feasibility study ("RL'FS") at the Site pursuant to Section 104 of CERCLA, 42 U.S.C. § 9604.

3.6 Due to the size and complexity of the Site, EPA conducted the Remedial Investigation ("RI") in two phases. Phase 1 included monitoring well installation, groundwater evaluation, groundwater sampling, surface water and sediment sampling, slag and sludge sampling, preliminary air/dust dispersion modeling, and preliminary risk assessments. Phase I was completed in early June 2001. Phase 2 was completed in early 2004 and included additional groundwater sampling, surface and subsurface soil sampling, residential well sampling, surface water and sediment sampling, biota sampling (fish, crayfish, amphibians, mammals, and reptiles), slag/sludge disposal area sampling, and final human health and ecological risk assessments. ,

3.7 The RI established that the primary sources of Site-related contamination on the Northern' and Southern Areas were the slag and sludge disposal locations of the former Sharon Steel facility. Site-related contaminants are released through leaching of metals from the slag and sludge into groundwater and by soil erosion of slag and sludge combined with overland runoff into the Shenango River. Groundwater contamination impacts the shallow aquifer on the Site, and as a secondary source of contamination, adversely impacts surface wateir and sediments, and bio-uptake in certain plants and animals. Erosion of slag and sludge and overland runoff also contribute contamination to surface

~ water. Wind erosion of slag and sludge release contamination into the air.

3.8 EPA issued a Superfund Record of Decision ("ROD") for the OU-1 portion of the Site on . November 30, 2006. The Site was separated into the following two operable units ("OUs") for purposes of remedy implementation: OU-1, which includes the northern and southern areas, is comprised of approximately two hundred and ninety two acres; OU-2, which includes the Dunbar Parcel, totals approximately thirty-three acres. The selected remedy for OU-1 addresses contaminated slag and sludge at the Site and includes the

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4.4 "Hazardous substances," as defined in Section 101(14) of CERCLA, 42 U.S.C. §

9601(14), have been disposed of at the Site and are currently present there.

• . - ^ 4.5 The presence of hazardous substances at the Site and the past, present, and/or potential

migration of hazardous substances from the Site constitutes an actual and/or threatened "release" as defined in Section 101(22) of CERCLA, 42 U.S.C. § 9601(22).

4.6 Respondent, Dunbar Asphalt, Inc., is an "owner" of a facility at which hazardous substances were disposed of within the meaning of Section 107 (a) (I) of CERCLA, 42 U.S.C.§ 9607(a)(1). - •

4.7 As an "owner'\ the Respondent is liable under Section 107(a)(1) of CERCLA, 42 U.S.C.§ 9607(a)(1).

V. DETERMINATIONS

Based on the Findings of Fact and Conclusions of Lav^ set forth above, and upon EPA's review of information in the Administrative Record, EPA has determined that:

5.1 The actual and/or threatened release of hazardous substances from the Site may present an imminent and substantial endangerment to the public health or welfare or the environment.

5.2 The Work is necessary to protect the public health or welfare or the environment.

5.3 A removal action is appropriate to abate, minimize, stabilize, mitigate or eliminate the release or threat of release of hazardous substances at or from the Site because there is threat to public health or welfare or the environment.

VL PARTIES BOUND

6.1 This Settlement Agreement shall apply to and be binding upon EPA and its agents, and to the benefit of EPA and its agents, and upon Respondent and its agents, successors, and assigns. Neither a change in ownership or corporate or partnership status of the Respondent, nor a change in ownership or control of the Site, shall in any way alter Respondent's responsibilities under this Seittlement Agreement.

6.2 In the event that Respondent files for or is placed into bankruptcy, such Respondent shall notify EPA within three (3) days of such event. '

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action; the Respondent's Project Coordinator designated pursuant to Section IX; and any replacements to any such persons are subject to disapproval by EPA at any tinie. In the event of any such disapproval by EPA, Respondent shall notify EPA within five (5) calendar days of receipt of such EPA disapproval of the person(s) who will replace the one(s) personnel. If a person's selection is disapproved by EPA, they shall not perform such specified response action.

8.3 Respondent shall accomplish the following items:

a. Install and maintain a cap consisting of approximately six inches of gravel and approximately three inches of asphalt to prevent inhalation of dust from the capped areas. The areas to be capped are identified on the maps,:attached hereto as Exhibit A, as "Proposed Superfund Easement, Land of Dunbar Asphalt".

b. Provide site specific health and safety measures, including preparation and implementation of a Health and Safety Plan ("HASP") for actions to be performed at the Site, to protect the health and safety of workers, other personnel and the public from the hazardous substances and work-related health and safety hazards during performance of the response action specified herein. The HASP shall, as appropriate, provide for proper decontamination of personnel and equipment, monitoring and control of offsite migration of hazardous substances during the performance of activities at the Site and protection of public health from exposure to hazardous substances during the conduct of activities at the Site pursuant to this Settlement Agreement. Health and safety requirements, in the HASP shall be at

^ least as stringent as those set forth in Occupational Safety and Health Administration and EPA requirements, including but not limited to, requirements contained in 29 C.F.R. § 1910.120 and/or EPA Standard Operating Safety Guides (July 5, 1988);

c. Develop and follow an expeditious schedule for implementation of the RAP.

8.4 Within sixty (60) calendar days of the effective date of this Settlement Agreement, Respondent shall submit to EPA for approval a RAP detailing the response action to be implemented.for the items specified in paragraph 8.3 above. To the extent that information concerning the details of a particular item does not yet exist so that it can be described in the RAP, the RAP shall set forth an expeditious schedule and plan for submittal of RAP supplement(s) to EPA for approval, which supplement(s) shall ftilly

- detail such items. All references to the review, approval and enforcement of the RAP shall also be apphcable to any RAP supplement(s). The RAP shall include, among other things, a schedule for expeditious performance of the response actions required by this Settlement Agreement. The RAP shall be consistent with the NCP and shall be subject to approval by EPA according to the provisions of paragraphs 8.5 and 8.9 below.

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portion of the RAP, report or other item required to be submitted under this Settlement Agreement, the approved portion shall be enforceable under this Settlement Agreement. In the event of conflict between this Settlement Agreement and any document attached hereto, incorporated in or enforceable hereunder, the provisions of this Settlement Agreement shall control. In the event that EPA disapproves any required submission, EPA will (1) specify the deficiencies in writing, and/or (2) submit its own modifications to the Respondent to accomplish the Work outlined in paragraph 8.3 above. Respondent shall amend and submit to EPA a revised submission that responds to and corrects the specified deficiencies within five (5) business days of receipt of EPA disapproval or such longer time as may be specified by EPA in its discretion. Exercise, of EPA's discretion with respect to such period shall not be subject to the dispute resolution procedures set forth in Section XII of this Settlement Agreement. In the event that EPA. submits its own modifications to the Respondent, the Respondent is hereby required to incorporate such modifications. Any non-compliance with EPA-approved reports, plans, specifications, schedules, attachments, or submission of deficient revisions following EPA disapproval, or non-compliance with an EPA-required modification shall be considered a failure to comply with a requirement of this Settlement Agreement. Determination(s) of non­compliance will be made by EPA.

8.10 In addition to the information and documents otherwise required by this Settlement Agreement, Respondent shall provide to EPA, upon written request, any and all information and documents in its possession, custody or control related to the Site including, but not limited to. Site analytical data (including raw data); Site safety data; Site monitoring data; pperational logs; copies of all hazardous waste manifests (including copies of all hazardous waste manifests signed upon receipt of the hazardous wastes by a licensed treatment, storage or disposal facility); the identity of treatment, storage and/or disposal facilities used; the identity of transporters used; the identity of any contractors, subcontractors and supervisory personnel used; information and documents concerning Respondent's compliance with Quality Assurance and Quality Control requirements of this Settlement Agreement; inforinafion and documents relating to Respondent's efforts to secure access; and information and documents relating to any project delays. Nothing herein shall be interpreted as limiting the inspection and information-gathering authority of EPA under Federal law.

8.11 , Within thirty (30) calendar days of the date Respondent conclude it has completed implementation of the RAP and the items identified in paragraph 8.3, Respondent shall submit a written Final Report to EPA, subject to EPA approval described in paragraph 8.9 above. The written report shall detail the work undertaken to implement the RAP and the items identified in paragraph 8.3 and shall be certified by Respondent in accordance with the terms of Section XXI of this Settlement Agreement. EPA will review the adequacy of Respondent's implementation of the RAP and accomplishrrient of items specified in paragraph 8.3 above. EPA will notify Respondent, in writing, of any discrepancies in the Final Report or deficiencies in the execufion of the RAP and the items identified in

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Agreement. Designation of a Project Coordinator shall not relieve Respondent of their obligaUon to comply with the requirements of the Settlement Agreement. The Respondent's Project Coordinator shall be a technical and/or managerial representative of the Respondent and may be a contractor and/or consultant; provided, however, the Respondent's Project Coordinator shall not be their legal representative in this matter. The Project Coordinator for EPA designated pursuant to this Section and the Project Coordinator for the Respondent shall be responsible for overseeing the Work. To the maximum extent possible, communications between the Respondents and EPA and all documents concerning the activities performed pursuant to the terms and conditions of this Settlement Agreement, including plans, reports, approvals and other correspondence, shall be directed to the Project Coordinators.

9.2 The Project Coordinator for EPA is:

Rashmi Mathur Remedial Project Manager U.S. Envirorunental Protection Agency Western PA/MD Remedial Branch (3HS22) 1650 Arch Street Philadelphia, PA 19103-2029 (215)814-5234

9.3 Respondent shall have the right to change their Project Coordinator. Such a change shall be accomplished by notifying the EPA Project Coordinator in writing at least five (5) calendar days prior to the change.

• , J . . .

9.4 EPA shall have the right to change its Project Coordinator at any time without prior notice to Respondent. EPA's intent is to notify the Respondent as soon as practicable following any such change of its Project Coordinator.

9.5 The absence of the EPA Project Coordinator from the Site shall not be cause for the stoppage or delay of Work except when such stoppage or delay is specifically required by EPA.

9.6 The EPA Project Coordinator shall have the authority to halt or modify Work or other activities performed by Respondent at the Site in order to eliminate a release or threat of release of hazardous substances. Such direction by the EPA Project Coordinator may be given verbally or in writing. If such direction is given verbally, the EPA Project Coordinator will later memorialize such direction in writing.

X. QUALITY ASSURANCE

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11.3 In accordance with law and regulation, as appropriate, EPA and its employees, agents, contractors, consultants and other authorized and designated representatives shall have

^ the authority to enter and freely move about the location where the response actions and/or Work is being performed at all reasonable times for the purposes of, inter alia: inspecting Work, records, operating logs and contracts related to the Site; reviewing the progress of the Respondent in carrying out the terms of this Settlement Agreement; conducting such tests as EPA deems necessary; using a camera, sound recording or other -documentary type equipment; and verifying the daita submitted to EPA by the Respondent. The Respondent shall permit such persons to inspect and copy all records, files, photographs, documents and other writings, including all sampling and monitoring data, in any way pertaining to the Work.

11.4 Respondent may make a claim of business confidendality for information submitted pursuant to this Settlement Agreement in the manner described in 40 C.F.R. § 2.203(b). Such an assertion shall be adequately substantiated in accordance with 40 C.F.R. § 2.204(e)(4) at the time the assertion is made. Information subject to a confidentiality claim shall be made available to the public by EPA only in accordance with the procedures set forth in 40 C.F.R. Part 2, Subpart B. If no such claim of business confidentiality accompanies the informafion when it is submitted or made available to EPA, the submitted information may be made available to the public by EPA without further notice to Respondent.

11.5 The Respondent may withhold those records and documents covered by any privilege or protection recognized under federal law and applied by federal courts in actions commenced by the United States. In the event that the Respondent withholds a document as privileged, the Respondent sh^ll provide EPA with the title of the document, the date of the document, the name(s) of the author(s) and addressee(s)/recipient(s), a description of the nature of the document and identification of the privilege asserted at the time such document is required to be provided to EPA.

11.6 No claim of confidentiality or privilege shall be made regarding any data required to be submitted pursuant to this Settlement Agreement including, but not limited to, sampling, analytical, monitoring, hydrogeologic, scientific, chemical or engineering data, or documents or information evidencing conditions at or around the Site. Nor shall such claims be made for analytical data; Site safety data; Site monitoring data; operational logs; hazardous waste ma:nifests; identhies of treatment, storage and/or storage facilities used; identities of transporters used; identities of any contractors or subcontractors used in performing work required by this Settlement Agreement.

11.7 Notwithstanding any provision of this Settlement Agreement, EPA retains all of its access and information-gathering authorities and rights under CERCLA and any other applicable statute and regulation.

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be sent simultaneously to the EPA Project Coordinator at the address identified in Section IX of this Settlement Agreement and to the EPA Region III Hearing Clerk (3RC00), 1650 Arch Street, Philadelphia, PA 19103.

13.2 Stipulated penalties shall accrue in the amount of $5,000 per calendar day per violation. Neither the accrual of nor demand for stipulated penalties set forth in this Section XIII

. shall preclude EPA from pursuing other penalties or sanctions available to EPA for Respondent's failure to comply with the requirements of this Settlement Agreement.

XIV. FORCE MAJEURE AND NOTIFICATION OF DELAY

14.1 The Respondent, through their Project Coordinator, shall notify EPA of any delay or anticipated delay in achieving compliance with any requirement of this Settlerhent Agreement. Such notification shall be made verbally as soon as possible but not later . than two (2) calendar days after Respondent becomes avyare or should have become aware of any such delay or anticipated delay, and in writing no later than seven (7) calendar days after either Respondent become aware, or should have become aware, of such delay or anticipated delay. Such vmtten notification shall be certified by the Project Coordinator in accordance with Section XXI of this Settlement Agreement and shall fiilly describe the nature of the delay, including how it may affect the Work, RAP and schedule; the actions that will be or have been taken to mitigate, prevent and/or minimize further delay; and the timetable according to which the ftjture actions to midgate, prevent and/or minimize the delay will be taken. The Respondent shall ensure that their Project Coordinator provides Respondent with immediate notification of any project delays. The Respondent shall adopt all reasonable measures to avoid and minimize such delay.

14.2 To the extent Respondent intend to claim that any delay or anticipated delay described by Respondent in accordance with paragraph 14.1 was or will be caused by circumstances beyond either of their control. Respondents shall, within fourteen (14) calendar days after Respondent become avvare, or should have become aware, of such delay or anticipated delay, submit to EPA a "Notice of Force Majeure" in which Respondent fully demonstrate that the delay was caused by circumstances beyond their control which could not have been overcome by due diligence, the necessity of the proposed length of the delay, and that the Respondent took and are taking all reasonable measures to avoid and minimize delay. The Respondent shall have the burden of proving these facts to EPA. Any "Notice of Force Majeure" shall be certified by a responsible official of Respondent pursuant to paragraph 21.1 of this Settlement Agreement.

14.3 Any such delay that EPA determines (1) has resulted or will result from circumstances beyond the control of the Respondent and (2) that could not and cannot be overcome by due diligence on the Respondent's part, shall not be deemed to be a violation of Respondent's obligation(s) under this Settlement Agreement, and shall not subject

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g. liability for costs incurred or to be incurred by the Agency for Toxic Substances and Disease Registry related to the Site.

15. 2 Except as expressly provided in this Settlement Agreement, (1) each party reserves all rights, claims, interests and defenses it may otherwise have, and (2) nothing herein shall prevent EPA from seeking legal or equitable relief to enforce the terms of this Settlement Agreement, including the right to seek injunctive relief and/or the imposition of statutory penaUies.

15.3 As provided by this Settlement Agreement, EPA expressly reserves its right to disapprove of Work performed by Respondents; to halt Work being performed by Respondent if Respondent has not complied with an approved RAP or this Settlement Agreement, or at any time EPA deems necessary to protect public health, welfare or the ehvironirient and to perform such Work; to request and require hereunder that Respondent correct and/or re-perform any and all Work disapproved by EPA; and/or to request or require that Respondent perform response actions in addition to those required by this Settlement Agreement. Further, EPA reserves the right to undertake response action at any time EPA deems appropriate. In the event EPA requires Respondent, and Respondent declines, to correct and/or re-perform work that has been disapproved by EPA and/or to perform response actions in addition to those required by this Settlement Agreement, EPA reserves the right to undertake such actions and seek reimbursement of the costs incurred and/or to seek any other appropriate relief In addition, EPA reserves the right to undertake removal and/or remedial actions at any time that such actions are appropriate under the NCP and to seek reimbursement for any costs incurred and/or take any other action authorized by law.

15.4 EPA reserves the right to bring an acfion against the Respondent for recovery of all recoverable costs incurred by the United States related to this Settlement Agreement which are not reimbursed by the Respondent, as well as any other costs incurred by the United States in connection with response actions conducted at the Site.

15.5 This Settlement Agreement concerns certain response actions (Work described in Section VIII, above) concerning the Site. Such response actions might not fully address all , contamination at the Site. - Subsequent response actions which may be deemed necessary by EPA are not addressed by this Settlement Agreement. EPA reserves all rights including, without limitation, the right to institute legal action against Respondent and/or any other parties in connection with the performance of any response actions not addressed by this Settlement Agreement.

15.6 Nothing in this Settlement Agreement shall limit the authority of the EPA On-Scene Coordinator as outlined in the NCP and CERCLA.

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XIX. LIABILITY OF THE UNITED STATES GOVERNMENT

19.1 Neither the United States Government nor any agency thereof shall be liable for any injuries or damages to persons or property resulting from acts or omissions of Respondent, or of their employees, agents, servants, receivers, successors or assigns, or of any persons including, but not limited to, firms, corporations, subsidiaries, contractors or consultants in carrying out the Work, nor shall the United States Government or any agency thereof be held out as a party to any contract entered into by Respondents in carrying out the Work.

XX. INDEMNIFICATION AND HOLD HARMLESS

20.1 Respondent agrees to indemnify and hold harmless the United States, its agencies, departments, agents, officers, employees and representatives from any and all causes of action caused by any acts or omissions of Respondent or their contractors in carrying out the work required by this Settlement Agreement.

XXI. CERTIFICATION OF COMPLIANCE

21.1 a. Unless otherwise required by the terms of this Settlement Agreement, any notice, report, certification, data presentation or other document submitted by Respondent under or pursuant to this Settlement Agreement which discusses, describes, demonstrates or supports any finding or makes any representation concerning Respondent's compliance or non-compliance with any requirement(s) of this Settlement Agreement shall be certified by the Respondent, a responsible official of the Respondent or by the Project Coordinator for the Respondent. The term "responsible official" means: (1) a president, secretary, treasurer or vice-president of the corporation in charge of a principal business fiinction, or any other person who performs similar policy- or decision-making fijnctions for the corporation, or (ii) the manager of one or more manufacturing, production or operating facilifies employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures. The responsible official of a partnership or sole proprietorship means the general partner or the proprietor, respectively.

b. The written Final Report required by paragraph 8.11 of this Settlement Agreement, any written notification described in paragraph 12.1 of this Settlement Agreement and any "Notice of Force Majeure" described in paragraph 14.2 of this Settlement Agreement shall be certified by the Respondent or a responsible official of Respondent.

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law. If Respondent assert such a privilege, Respondent shall provide EPA 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 of the document, record, or information; and (6) the privilege asserted by Respondent. However, no documents, reports or other information created or generated pursuant to the requirements of this Settlement Agreement shall be \yithheld on the grounds that they are privileged.

; XXIII. DEFINITIONS

23.1 "Business days" as used in this Settlement Agreement shall mean every day of the, week except Saturdays, Sundays and federal holidays.

23.2 "Calendar days" as used in this Settlement Agreement shall mean every day of the week, including Saturdays, Sundays and federal holidays.

23.3 "Days" as used herein shall mean "calendar days" unless specified otherwise.

23.4 "Work" as used herein shall mean all requirements of this Settlement Agreement, including any modifications hereto. - ^

23.5 All terms not defined herein shall have the meanings set forth in CERCLA and the NCP.

XXIV. NOTICE OF COMPLETION

24.1 When EPA determines, after EPA's review and approval of the Final Report required pursuant to paragraph 8.11 of this Settlement Agreement, that the response action specified in Section VIII of this Settlement Agreement has been ftilly performed, and upon receipt of costs and penalties assessed by EPA, with the exception of any continuing obligations required by this Settlement Agreement, including those requirements specified in Sections XV ("Reservation of Rights"), XVI ("Otlier Claims"), XIX ("Liability of the United States"), XX ("Indemnification and Hold Harmless") and XXII ("Record Retention") EPA will provide a notice of completion to the Respondent.

XXV. COVENANT NOT TO SUE BY EPA

25.1 From the effective date of this Settlement Agreement and for as long as EPA determines that the terms of this Settlement Agreement, including any modifications made hereto, are being fully complied with, and except for any proceeding to enforce its terms or collect

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26.2 Nothing in this Agreement shall be deemed to constitute approval or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d).

26.3 Respondents 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 Respondents with respect to the Site is based solely on having arranged for disposal or treatment, or for transport for disposal or treatment, of hazardous substances at the Site, or having accepted for transport for disposal or treatment of hazardous substances at the Site, if

a. The materials contributed by such person to the Site containing hazardous substances 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.

b. This waiver shall not apply to any claim or cause of action against any person meeting the above criteria if 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. This waiver also shall not apply with respect to any defense, claim, or cause of action that Respondents may have against any person if such person asserts a claim or cause of action relating to the Site against Respondents.

XXVII. CONTRIBUTION

27.1 The Parties agree that this Settlement Agreement constitutes an administrative settlement V for purposes of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and that the

Respondents are entitled, as of the effective date of this Settlement Agreement, to protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), for "matters addressed" in this Settlement Agreement. The "matters addressed" in this Settlement Agreement is the Work of this Settlement

Agreement. ; '

27.2 The Parties agree that this Settlement Agreement constitutes an administrative settlement for purposes of Secfion 113(f)(3)(B) of CERCLA, 42 U.S.C. § 9613(f)(3)(B), pursuant to which the Respondents have, as of the effective date of this Settlement Agreement, resolved their liability to the United States for the Work.

27.3 Nothing in this Settlement Agreement precludes the United States or Respondents from asserting any claims, causes of action, or demands for indemnification, contribution, or cost recovery against any persons not parties to this Settlement Agreement. Nothing herein diminishes the right of the United States, pursuant to Sections 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2) and (3), to pursue any such persons to obtain additional response costs, including oversight costs or response action and to enter into settlements

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FOR Respondent Williams Brothers Trucking:

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