U.S. REGION I - US Environmental Protection Agency · Dorr-Oliver Energy Research Corporation Ferro...

U.S. ENVIRONMENTAL PROTECTION AGENCY REGION I

J.F.K. FEDERAL BUILDING, Boston, MA 02203

MEMORANDUM SDMS DocID

DATE: February 16, 1994

SUBJ: Final Acceptance of Cost Recovery Settlement Gallup's Quarry Superfund Site, Plainfield, CT

FROM: Margery Adams Miff Assistant Regional Counsel

Leslie McVickar Remedial Project "Manager'

TO: John P. DeVillars Regional Administrator

Attached for your signature is a "responsiveness summary" which relates to a cost recovery agreement under Section 122(h) of CERCLA for response costs incurred by EPA at the Gallup's Quarry Superfund Site, in Plainfield, Connecticut. This document represents the final step in approving this settlement, which was negotiated in the summer of 1993.

Briefly, the site is a former quarry that was used for illegal disposal of hazardous wastes for a nine month period in 19771978. Since that time, the State of Connecticut has undertaken a removal action to remove drums and obviously contaminated soils at the site; EPA performed preliminary studies to support a listing on the National Priorities List, and conducted a search for potentially responsible parties. The site was listed on the NPL in October 1989. EPA has identified 40 potentially responsible parties ("PRPs"), all of whom were customers of the sole transporter known to have disposed of wastes at the site.

Over the past summer, EPA negotiated with the PRPs, resulting in this cost recovery order and a companion agreement to perform the remedial investigation and feasibility study at the site. Twenty-three of the forty PRPs eventually settled, agreeing to pay $345,000 or 80% of EPA's past costs incurred as of February 28, 1993. Copies of the cost recovery settlement, and a September 3, 1993 memorandum containing a complete analysis of the settlement, are attached.

The Department of Justice approved the cost recovery agreement on November 1, 1993, and Acting Regional Administrator Keough signed it on November 18, 1993. Pursuant to Section 122(i) of CERCLA, the settlement was then published in the Federal Register and

comments were solicited. No comments were received by the close of the 30-day comment period.

Recommendation

Accordingly, we recommend that you sign the attached Responsiveness Summary, indicating that as EPA has received no comments indicating that the settlement is inappropriate, improper or inadequate, the settlement is accepted by EPA. Payment of the $345,000 amount will then be due from the settling PRPs in 45 days.

Please direct any questions concerning this matter to Margery Adams, Assistant Regional Counsel, at 565-3746.

i. /

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION I

In the Matter of:

GALLOP'S QUARRY SUPERFUND SITE

SETTLING PARTIES:

Acco-Bristol Division/Bristol Babcock Inc. American Cyanamid Company Bedoukian Research, Inc. Better Formed Metals/Illinois Tool Works Inc Bryant Electric, Inc. Connecticut Hard Rubber/CHR Industries, Inc. Consolidated Controls Corporation Dorr-Oliver Energy Research Corporation

Ferro Corporation

Instapak Corporation/Sealed Air Corporation Kanthal Corporation

King Industries, Inc. Pitney Bowes, Inc. Polymer Industries, Inc./Colonial Heights

Packaging Inc. Quality Rolling and Deburring, Inc. Reichhold Chemical, Inc. Risdon Manufacturing Company/Risdon Corp. R.T. Vanderbilt Company, Inc. Stamford Wall Paper Company, Inc. Union Carbide Corporation Warner Packaging Waterbury Plating Company

Proceeding Under Section 122(h)(l) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. 9622(h)(l)

US EPA Region I CERCLA Docket No. 1-93-1079

COST RECOVERY ADMINISTRATIVE AGREEMENT

It

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C.F.R. Part 300;

WHEREAS, EPA has provided the Settling Parties with summaries

and other documentation supporting these response costs;

WHEREAS, EPA alleges that the parties who have signed this

Agreement and who are listed in Appendix A ("Settling Parties") are

responsible parties pursuant to Section 107(a) of CERCLA, 42 U.S.C.

9607(a), and are liable for response costs incurred and to be

incurred at or in connection with the Site;

WHEREAS, the Settling Parties do not admit any of EPA's

allegations; and

WHEREAS, EPA and the Settling Parties desire to settle certain

claims arising from the Settling Parties7 alleged involvement with

the Site without litigation and without admission or adjudication

of any issue, of fact or law;

NOW, THEREFORE, EPA and the Settling Parties, in consideration

of the promises and covenants herein, and intending to be legally

bound hereby, agree as follows:

JURISDICTION

1. This Agreement is made and entered into by the United

States Environmental Protection Agency and the Settling Parties

whose names appear in Appendix A and who have executed the attached

signature pages. This Agreement concerns the recovery of costs

incurred by EPA at the Gallup's Quarry Superfund Site as of

February 28, 1993. The authority to enter into such an Agreement

is vested in the President by Section 122(h)(l) of CERCLA, 42

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with the Site as of February 28, 1993.

REIMBURSEMENT FOR RESPONSE COSTS

5. The Settling Parties shall make payment to EPA by

certified or cashier's check in the amount of $345,000 (the

"Settlement Payment") within forty-five (45) days after the

effective date of this Agreement in full satisfaction of EPA's

claim for response costs incurred at or in connection with the Site

through and including February 28, 1993.

STIPULATED PENALTIES ; "

6. If the Settling Parties fail to tender the ' entire

Settlement Payment within forty-five (45) days after the effective

date of this. Agreement, the Settling Parties shall collectively be

liable to pay the sums set forth below as stipulated penalties:

Period of Failure to Comply Penalty Per Day

1st - 7th day $1,000.00 8th - 14th day $2,000.00 each day thereafter $3,500.00

7. Any such penalty shall be due and payable within ten (10)

days of the receipt of a written demand from EPA. Payment for

.stipulated penalties shall be made as set forth in Paragraph 9

below. Penalties shall accrue regardless of whether EPA has

notified the Settling Parties of their failure to make a timely

payment.

8. In the event that the Settling Parties fail to pay

stipulated penalties as provided in Paragraphs 6 and 7, EPA may

http:3,500.00http:2,000.00http:1,000.00

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U.S. Environmental Protection Agency John F. Kennedy Federal Building, RCU-23

Boston, Massachusetts 02203

EPA'S COVENANT NOT TO SUE

10. In consideration, and upon payment, of the amounts

specified in Paragraph 5 of this Agreement, EPA agrees that such

payment shall represent full satisfaction of the United States7

claim against the Settling Parties for any and all civil liability

under Section 107(a) of CERCLA, 42 U.S.C. 9607(a), for

reimbursement of response costs incurred at or in connection with

the Site as of February 28, 1993. Nothing in this Agreement shall

'be construed to require EPA to enter into any later agreement with

respect to the Gallup's Quarry Superfund site with any Settling

Party, or to prevent EPA from performing any response actions at

the Site.

COVENANT OF THE SETTLING PARTIES

11. The Settling Parties hereby covenant not to sue the

United States for any claims related to or arising from this

Agreement, including any direct or indirect claim for reimbursement

from the Hazardous Substance Superfund established pursuant to 26

U.S.C. 9507. Nothing in this Agreement shall be deemed to

constitute preauthorization of a claim within the meaning of

Section 111 of CERCLA, 42 U.S.C. 9611.

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criminal, past or future, in law or in equity, which EPA may have

against any person, firm, corporation or other entity not a

signatory to this Agreement. Except as specifically set forth

herein, this Agreement shall not estop or limit any legal or

equitable claims of the United States against the Settling Parties,

their agents, contractors, or assigns, including but not limited

to, claims related to releases of hazardous substances or other

pollutants or contaminants.

PUBLIC COMMENT PERIOD

15. Final acceptance of this Agreement by EPA shall be

subject to Section 122(i) of CERCLA, 42 U.S.C. 9622(1), which

requires EPA to publish notice of the proposed settlement (the

Agreement) jji the Federal Register, to provide persons who are hot

parties to the proposed settlement an opportunity to comment on the

proposed settlement, and to consider comments filed in determining

whether to consent to the proposed settlement. After consideration

of any comments submitted during the thirty (30) day public comment

period held pursuant to Section 122(i) of CERCLA, EPA may withhold

consent to this Agreement if comments received disclose facts or

considerations which indicate that this Agreement is inappropriate,

improper or inadequate.

SEPARATE DOCUMENTS

16. This Agreement may be executed .in two or more

counterparts, each of which shall be deemed an original, but all of .

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the public comment period pursuant to Paragraph 15 has closed and

that comments received, if any, do not require modification of or

EPA withdrawal from this Agreement.

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IT IS SO AGREED.

U.S. ENVIRONMENTAL PROTECTION AGENCY

y By: _ _ ft

Regional AdministratorEPA Region J

Margery L. Adams Date Senior Assistant Regional Counsel

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GALLUP'S QUARRY SUPERFDND SITE COST RECOVERY ADMINISTRATIVE AGREEMENT

LIST OF SETTLING PARTIES

Acco-Bristol Division/Bristol Babcock Inc. American Cyanamid Company Bedoukian Research, Inc. Better Formed Metals/Illinois Tool Works Inc, Bryant Electric, Inc. Connecticut Hard Rubber/CHR Industries, Inc. Consolidated Controls Corporation Dorr-Oliver Energy Research Corporation Ferro Corporation Instapak Corporation/Sealed Air Corporation Kanthal Corporation King Industries, Inc. Pitney Bowes, Inc. Polymer Industries, Inc./Colonial Heights

Packaging Inc. Quality Rolling and Deburring, Inc. Reichhold Chemical, Inc. Risdon Manufacturing Company/Risdon Corp. R.T. Vanderbilt Company, Inc. Stamford Wall Paper Company, Inc. Union Carbide Corporation Warner Packaging Waterbury Plating Company

GALLUP'S QUARRY SUPERFUND SITE COST RECOVERY ADMINISTRATIVE AGREEMENT U.S. EPA REGION I CERCLA DOCKET NO. 1-93-1079

IT IS SO AGREED:

Name of Settling Party: BRISTOL BABCOCK INC.

By: Title: Secretary

Address: 425 Post Road Fairfield, CT

Date: August 20, 1993

Agent Authorized to Accept Service on Settling Party's Behalf:

Name: Title:

Address:

Telephone:


IT IS SO AGREED:

Name of Settling Party: C Y T E C INDUSTRY S , a B u s i n e s s Uni t of American Cy a n'ar id Company

By: ^^N^S! -XSjuA f t Title: Vi rp Prp


IT IS SO AGREED:

Robert H. Bedoukian, President Bedoukian Research, Inc. v_ Name of Settling Party:

By: Title: President

Address: 21 Finance Drive Danburv. CT 06810

Date:


Name: Title:

Address :

Telephone:


IT IS SO AGREED:

Illinois Tool Works Inc. on behalf of its Better Formed Metals division

Name of Settling Party;

By:Title:

Address: 3600 W. Lake Avenue Glenview. IL 60025

Date: 8/20/93


Name: Title:

Philip S. Dallosto

Address:

Telephone: 708-657-4199


IT IS SO AGREED:

Westinghousc Electric Corporation (d.b.a. Bryant Electric, Inc.) Name of Settling Party:

By: Title: Mgr., Corporate Environmental Activities

Address: Environmental Affairs 11 Stanwix Street Pittsburgh, PA 15222

Date: August 18. 1993


Name: Prentice Hall Corporation Title:

Address: 30 High Street Hartford. CT 06103

Telephone: 800/221-0770


IT IS SO AGREED:

Name of Settling Party: CHR industries, inc.


Address: 407 East street New Haven. fT 0650Q

Date: AM gust 17.


Name: Daniel P. Beharrv Title: Counsel

Address: Wiggin & Dana, One CitvPlace Hartford, CT 06103-3403

Telephone: (203) 297-3724


IT IS SO AGREED:

Of Settling Party: Eaton Corporation ( Con


IT IS SO AGREED:

Dorr-Oliver (BP America Inc.) Name of Settling Party:

By: Title: __

Address: 200 Public Square: 39-B-5300 Cleveland. Ohio 44114-2375

Date:


Name: Charles R. Pinzone Title: Attorney

Address: 200 Public Square. 39-B-5300 Cleveland. Ohio 44114-2375

(216) 586-8298 Telephone:


IT IS SO AGREED:

Name Of Settling Party: Energy Research Corporation

By: r?j*L*^--z/


IT IS SO AGREED:

Ferro Corporation Name of Settling Party:

By: Title: R. J.//finch, Vice President. Specialty Plastics

Address: Ferro Corporation JOUU Lakeside Cleveland, Ohio 44114 '

Date: / 1


Name: I. Monica Olszevski, Esq. Title: Attorney for Ferro Corporation

Address: 1000 Lakeside Cleveland, Ohio 44114

Telephone: 216-641-8580 x6214


IT IS SO AGREED:

Name of Settling Party; SEALED AIR CORPORATION

By: Title: Senior Vice President-Firtafice

Address: Park 80 East Saddle Brook/ New Jersey 07662

Date:

Agent Authorized to Accept Service on Settling Party's Behalf;

Name: Robert M. Grace/ Jr. Title: General Counsel and Secretary

Address: Park 80 East Saddle Brook, New Jersey 07662

Telephone: 201-703-4150


IT IS SO AGREED:

Name of Settling Party: THE KANTHAL CORPORATION


Address: 119 wooster^Street. Bethel, CT 06801



Name: Sanford Dean Kaufman, Esq. or Michael R. Kaufman/ Esq. Title: Attorneys

Address: Jones/ Damia/ Kaufffian Wellmaru Borofsky & Stelljes 29 Sugar Hollow Road/ Danbury/ CT 06810

Telephone: f203) 744-1313


IT IS SO AGREED:

Name of Settling Party: King Industries, Inc.

By: Title:

Address: Science Road Norwalk. CT 06852



Name: Mark V. Burns Title: Attorney.

Address: 315 Post Road West Westport. CT 06881

Telephone: 203-454-2788


IT IS SO AGREED:

Name of Settling Party: PITNEY BOWES INC.

By: Title: ASSOCIATE GENERAL COUNSEL & ASSISTANT SE

Address: i FTMranTT prun STAMFQD. CT 06926-0700

Date: '/ 7 7


Name: THOMAS HARRISON Title: J>ARTNER

Address: DAY. KFBKY & CITY PLACED HARTFORD, CT 06103-3499

Telephone: 2oy.?7S-(U8n


IT IS SO AGREED:

Name of Settling Party: Colonial Heights Packaging Inc.

By: Diane M. McAdams Title: Secretary

Address: 120 Par* Avenue New YorK, NY


Agent Authorized to Accept Service on Settling Party's Behalf;

Name: Arthur A. Vogel, Jr. Title: Attorney

Address: Quarles & Brady 411 K. Wisconsin Avenue Milwaukee, WI 53202-4497

Telephone: (414) 277-5545


IT IS SO AGREED:

Name of 'settling Party: Quality Rolling & Deburring. Inc.

By:

Title:

Address: 135 South Main Street Thomaston. CT



Name: Edward J. Peters, Jr., P.C. Title:

Address: 595 Main Street ~ P. 0. Box 99 Portland, CT06480-0099

Telephone: 203-342-3535


IT IS SO AGREED:

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Name of settling Party: r{(

Title: Director. Environment, Health & Safety Address : P. 0. Box 13582 _

Durham, NC 27709-3582 _

Date: August 18. 1993 _


Name: CT Corporation Systems ___ Title:

Address: 1633 Broadway New York. Nev York 10019

Telephone: (212) 664-1666


IT IS SO AGREED:

Name of Settling Party: Risdon Corporation

By: Title: Vice President and Corporate Controller

Address: One Risdon Street Nauqatuck, CT 06770



Name: Daniel P. Beharrv Title: Counsel

Address: Wiooin & Dana '. ri t-vP1 a


IT IS SO AGREED:

Name of Settling Party:

By: Title:

Address:

Date:

R. ,T. V.

Hugh B. Vanderbilt, Jr. Exec. Vice President, Mining & Manufacturing 30 Winfield Street Norwalk, Connecticut 06855

August 20, 1993

Agent Authorized to Accept Service on Settling Party's Behalf: Howard A. Neuman, Esq.

Name: Satterlee Stephens Burke & Burke Title: Partner .

Address: 230 Park Avenue. Suite 1130 New York. New York 10169

Telephone: (212) 818-9200


IT IS SO AGREED:


By: Title:

Address:

Date:

Agent Authorized to Accept

Name: Title:

Address:

Stamford Wall Paper Company, Inc.

John L. Jones, Jr. President 911 Hope Street Stamford, Ct. 06907

August 18, 1993

Service on Settling Party's Behalf:

John L. Jones, Jr. President c/o Stamford Wall Paper Company, Inc. 911 Hope Street. Stamford. Ct. 06907

Telephone: 323-7761


IT IS SO AGREED:

Name of Settling Party: j L6rt()c

By:

Title:

Address:

Date: '


Name: UhrisWiL^' J. ( DLMAJ _ Title: ~~

Address: f.T

o

Telephone: 7fl^ -7^ -$"7


IT IS SO AGREED:


By: Title:

Address:

Date:


Name: FfafvJ Title:

Address: ST

Telephone:

GALLUP'S QUARRY SUPERTUND SITE COST RECOVERY ADMINISTRATIVE AGREEMENT U.S. EPA REGION I CERCLA DOCKET NO. 1-93-1079

ZT IS 60 AGREED:

Name of Settling Party: NARDO2Z1 REALTY COMPANY

X F/K/A WAJERBURY PLATING COMPANY^

By: PRESIDENT

Address: 66 GREEN HILL ROAD MIDDLEBURY. CONNECTICUT 06762

Date: AUGUST i?. 1993


Naae: JAMES W. WALSH Title: A T T O R N E Y

Addre: 103MAIN STREET . P.O. BOX OT2 ANSQNIA, CONNECTICUT "

Telephone: 735-332t

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION I

IN THE MATTER OF: ) )

GALLUP'8 QUARRY SUPERFUND SITE ) U.S. EPA )

Plainfield, Connecticut ) CERCLA DOCKET ) NO. 1-93-1080 )

SETTLING PARTIES: ) )

Acco-Bristol Division/Bristol Babcock Inc. ) American Cyanamid Company ) Bedoukian Research, Inc. ) Better Formed Metals/Illinois Tool Works Inc.) Bryant Electric, Inc. ) Connecticut Hard Rubber/CHR Industries, Inc. ) Consolidated Controls Corporation ) Dorr-Oliver )

Energy Research Corporation ) Ferro Corporation ) Instapak Corporation/Sealed Air Corporation ) Kanthal Corporation ) King Industries, Inc. ) Pitney Bowes, Inc. ) Polymer Industries, Inc./Colonial Heights )

Packaging Inc. ) Quality Rolling and Debarring, Inc. ) Reichhold Chemical, Inc. )

Risdon Manufacturing Company/Risdon Corp. )

R.T. Vanderbilt Company, Inc. ) Stamford Wall Paper Company, Inc. ) Union Carbide Corporation ) Warner Packaging ) Waterbury Plating Company )

) )

Proceedings relating to a settlement ) agreement under Section 122(d)(3) for action ) under Section 104(b) of the Comprehensive ) Environmental Response, Compensation and ) Liability Act of 1980, as amended, 42 U.S.C. ) Section 9601 et sea. )

TABLE OF CONTENTS

JURISDICTION 4

PARTIES BOUND 4'

Engagement of the Settling Parties' Contractor;

Monthly Progress Reports .... 21':

Quality Assurance/Quality Control; Health and Safety

STATEMENT OF PURPOSE 6

EPA'S FINDINGS OF FACT 6

EPA'S DETERMINATIONS 9

ORDER 11

Implementation . 11

Designation of the Settling Parties' Project Coordinator 14

Designation of EPA's Remedial Project Manager 15

Place and Manner of Notice 16

Observation of the Settling Parties' RI/FS Activities .... 17

Necessity of Formal Approval . . . 18

Submissions Requiring EPA Approval . . 18

Availability of RI/FS Data 22

Compliance 22

Split Sampling 23

Record Preservation ... 24

Confidentiality Claims 25

Site Access 25

Endangerment and Emergency Response 27

Use of Resource Conservation and Recovery Act Facilities . . 28

Other Laws 29

Public Review of RI/FS Report 29

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Community Relations 30

Certification of the Settling Parties'

Appendices

Financial Assurance; Insurance 30

Reimbursement of EPA Response and Oversight Costs 32

Excuses for Delays in Performance 34

Dispute Resolution 36

Stipulated Penalties for Delays in Performance ' 37

Civil Penalties for Noncompliance 40

Performance of the Work Activities 40

Covenant Not to Sue 41

Denial of Liability 41

EPA's Reservation of Rights . . 42

Settling Parties' Reservations of Rights 44

Other Claims 45

Indemnification 46

Waiver of Settlement Conference 47

Notice to the State and Federal Natural Resource Trustee . . 47

Modification of Order . . . 47

Separate Documents 48

Effective Date; Computation of Time . 48

*

Appendix A (Statement of Work)

Appendix B (List of Settling Parties)

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JURISDICTION

1. This Administrative Order by Consent (Order) is entered into

voluntarily by and between the United States Environmental

Protection Agency (EPA) and all of the Settling Parties listed in

the caption above (hereinafter the Settling Parties). The Order

concerns the preparation of, performance of, and reimbursement of

oversight cost for the Remedial Investigation and Feasibility

Study (RI/FS) for the Superfund Site known as the Gallup's Quarry

Site (the Site) in Plainfield, Connecticut. This Order is issued

pursuant to the authority vested in the President of the United

States by Sections 104 and 122(d)(3) of the Comprehensive

Environmental Response, Compensation, and Liability Act, 42

U.S.C. Sections 9604 and 122(d)(3), which authorize the President

to issue an order setting forth the obligations of the Settling ':

Parties with respect to a settlement agreement for action under

Section 104(b) of CERCLA. This authority was delegated to the

Administrator of EPA on January 23, 1987, by Executive Order

12580, 52 Fed. Reg. 2926 (January 29, 1987), and further

delegated to the Regional Administrator, September 13, 1987, by

EPA delegation No. 14-14-C. The Settling Parties agree not to

contest the authority or jurisdiction of the Regional

Administrator to issue this Order in any subsequent proceeding to

enforce the terms of this Order.

PARTIES BOUND

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2. This Order shall apply to and be binding upon EPA and the

Settling Parties and their successors and assigns. No change or

changes in the ownership or corporate status of any of the

Settling Parties shall in any way alter the Settling Parties'

responsibilities under this Order. Each Settling Party shall

provide a copy of this Order to any subsequent owners or

successors before ownership rights are transferred. The

Settling Parties shall be jointly and severally liable for the

performance of the activities specified in the Order and for

penalties arising from this Order. The signatories to this Order

certify that they are authorized to execute and legally bind the

parties they represent.

3. The Settling Parties shall provide a copy of this Order to

all contractors, subcontractors, laboratories, and consultants :

retained to conduct any portion of the work performed pursuant to

this Order, within fourteen (14) days after the effective date of

this Order or after the date of such retention.. Notwithstanding

the terms of any contract, the Settling Parties are responsible

for compliance with this Order and for ensuring that their

contractors and agents comply with this Order. Any reference

herein to the Order shall mean the Order, any Appendix thereto

including any future modifications as provided by the terms of'

the Order as may be added-hereafter, including any reports,

plans, specifications, schedules-, and appendices required by this

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Order which, upon approval of EPA, shall be incorporated into and

enforceable under the Order.

STATEMENT OF PURPOSE

4. In entering into the Order, the mutual objectives of EPA and

the Settling Parties are: (i) to determine the nature and extent

of contamination and any threat to the public health, welfare, or

the environment caused by the release or threatened release of

hazardous substances, pollutants or contaminants from the Site by

conducting a remedial investigation; and (ii) to determine and

evaluate alternatives for .remedial action (if any) to prevent,

mitigate or otherwise respond to or remedy any release or

threatened release of hazardous substances, pollutants, or

contaminants from the Site by conducting a feasibility study.

5. The activities conducted under this Order are subject to

approval by EPA and shall provide all appropriate necessary

information for the Remedial Investigation/Feasibility Study, and

for a Record of Decision that is consistent with CERCLA Sections

104, 121, and 122, and the National Contingency Plan (NCP), 40

CFR Part 300 et sea.

EPA'S FINDINGS OF FACT

6. The Gallup's Quarry Superfund Site (the "Site") is located

on Tarbbx Road in the town of Plainfield, Windham Country,

Connecticut. The Site, approximately twenty-two acres, was used

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as an unlicensed chemical waste disposal site from approximately

1977 to 1978. The Site is bounded by Mill Brook and its

associated wetlands to the north, Route 12 to the east, Tarbox

Road and residential areas to the south, and Conrail railroad

tracks and wetlands to the west.

8. Land use in the area surrounding the Site is largely

residential. Within three miles from the Site, approximately

6,500 residents rely on groundwater for their sole drinking water

supply. Nearby wooded areas and Mill Brook are used for

recreation, including game fishing.

9. Prior to 1977, the Site was used for gravel mining

operations. In the spring of 1977, Chemical Waste Removal, Inc.

(CWR) of Bridgeport, Connecticut began to send drummed and bulked '

waste materials to the Site. CWR was the sole transporter of

waste to the Site between approximately May 1977 and January

1978. During that time period, disposal activities occurred in

at least three distinct locations at the site: a buried seepage

system in the elevated central part of the Site, and two separate

pits at the north end of the Site into which barrels of waste

chemicals and free liquid--chemical wastes were dumped.

10. In early January; 1978, in response to citizen complaints,

the Connecticut State Police arid Connecticut Department of

Environmental Protection (CT DEP) investigated activities at the

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Site.. On January 13, 1978, the CT DEP entered the Site,

discovered half buried drums with markings of "P.F. Etchant" and

"Ferric Chloride", and collected liquid samples in the open pit

area at the Site. The samples confirmed the presence of elevated

levels of numerous hazardous constituents. All operations at the

Site ceased at this time.

11. At the direction of CT DEP and the Connecticut State

Police, investigatory and removal activities, including site

evaluation, and removal of drums and contaminated soil, were

conducted at the site from January through August 1978. Over

1,600 barrels, 5,000 gallons of bulk liquid waste, and 3,500 tons

of contaminated soil were removed by the CT DEP from the ground

during its cleanup effort.

r

12. Wastes disposed of at the Site in drums and as free liquid

waste include, but are not limited to: methyl ethyl ketone,

isopropanol, acetone, methanol, toluene, xylene,

tetrachloroethylene, cyanide, trichloroethylene, 1,1,1

trichloroethyiene, copper, iron, nickel, and chromium. Volatile

organics and metals, including the contaminants listed above,

have been detected in samples from the groundwater, surface

water, sediment and soil by. the CT DEP and Connecticut Department

of Health during their sampling efforts between 1978 and 1981,

and by EPA during 1986, 1987, 1992, and 1993.

13. In May 1988, EPA's contractor, the NUS Technical Assistance

Team, initiated a Site Investigation to evaluate the Gallup's

Quarry Site with respect to conditions for Removal Actions under

the National Contingency Plan (NCP), 40 C.F.R. 300.65. Soil

samples collected confirmed the presence of volatile organic

compounds, semi-volatile organic compounds and metals.

14. Pursuant to Section 105(8)(b) of CERCLA, 42 U.S.C.

9605(8)(b), the Site was proposed for inclusion on the National

Priorities List (NPL) published by the Administrator of EPA in

the Federal Register on June 21, 1988 ( 53 Fed. Reg. 23342). The

Site was finally listed on the NPL on October 4, 1989-(54 Fed.

Reg. 41020).

15. The Generator Settling Parties listed in Appendix B

attached hereto are persons who arranged for disposal, or

arranged with a transporter for transport for disposal, of

hazardous substances at the Site, or are successors-in-interest

to persons who arranged for disposal, or arranged with a

transporter for transport for disposal, of hazardous substances

at the Site.

EPA'S DETERMINATIONS

16. On the basis of the Findings of Fact, EPA has determined

that: . - : : - . - . : .

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a. Each Settling Party is a "person" as that term is

defined in Section 101(21) of CERCLA, 42 U.S.C.

9601(21).

b. Each Settling Party is a liable party within the

meaning of Section 107(a) of CERCLA, 42 U.S.C.

9607(a), and a "potentially responsible party" within

the meaning of Section 122(d)(3) of CERCLA, 42 U.S.C.

9607(a).

c. The Site is a "facility" within the meaning of Section

101(9) of CERCLA, 42 U.S.C. 9601(9).

_d. Substances identified at the S'ite, including those

listed in paragraph 12, are "hazardous substances"

within the meaning of Section 101(14) of CERCLA, 42

U.S.C. 9601(14) .

e. The past, present or potential future migration into

the environment of hazardous substances, pollutants or

contaminants at or from the Site constitutes an actual

."release" or a substantial threat of a release into the

"environment" as those terms are defined in Sections

101(8), 101(22) and 104(a) of CERCLA, 42 U.S.C.

9601(8), 9601(22) and 9604(a).

f. It is necessary, in order to protect the public health

and welfare and the environment, to conduct an RI/FS to

determine the full nature and extent of contamination

that exists at or near the Site and to determine what

remedial actions are or may be necessary to be carried

-11

out under Sections 104 and 121 of CERCLA, or secured

g.

through enforcement action under Section 106 of CERCLA.

The RI/FS will be conducted properly and promptly by

the Settling Parties, in accordance with Sections

104(a)(1) and 122(a) of CERCLA, provided that the

Settling Parties perform all activities in accordance

with the terms of this Order, the Statement of Work

h.

(SOW) (Appendix A), and any modifications thereto,

The actions called for in this Order will be consistent

with the NCP to the extent that the NCP is consistent

with CERCLA, provided that the Settling Parties perform

such actions properly in accordance with the terms of

this Order, the Statement of Work, and any

modifications thereto.

h. The Settling Parties are qualified to conduct the

RI/FS, in accordance with Section 104(a)(1) of CERCLA,

'

i.

if the Settling Parties engage a qualified contractor

pursuant to Paragraph 20 of this Order.

EPA will arrange for the oversight and review of the

RI/FS by qualified EPA and qualified contractors, in

accordance with Section 104(a)(1) of CERCLA.

ORDER

BASED ON THE FOREGOING FACTS AND DETERMINATIONS, EPA AND THE SETTLING PARTIES HEREBY AGREE, AND EPA HEREBY ORDERS THAT:

Implementation

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17. Subject to EPA's rights to implement its own RI/FS pursuant

to Paragraphs 29 and 43, the Settling Parties shall perform the

RI/FS in accordance with the Statement of Work (SOW), which is

attached to this Order as Appendix A, and with any modifications

made or required by EPA to bring documents and/or deliverables

prepared by the Settling Parties under this Order into

conformance with the requirements of CERCLA, the NCP, the SOW,

and modifications to the SOW, and any work plans prepared under

this Order or the SOW, which are incorporated by reference into

this Order. Upon the effective date of this Order, Settling

Parties shall commence implementation of this Order and of work

required by the Statement of Work, and shall conclude-

implementation of such in accordance with the terms and schedules

set forth in this Order, Appendix A, and any approved Work Plans.

The activities conducted pursuant to this Order are subject to

approval by EPA and shall, unless otherwise directed by EPA, be

consistent with the NCP to the extent that the NCP is consistent

with CERCLA. Such activities shall also be consistent with EPA

Interim Guidance on Superfund Selection of Remedy, OSWER

Directive No. 9355.0-19; Guidance for Conducting Remedial

Investigation and Feasibility Studies under CERCLA, OSWER

Directive Number 9355.3-01; and guidances referenced in the

Statement of Work.

18. If any inconsistencies between any of the above laws,

regulations or guidance exist, CERCLA shall govern. Furthermore,

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if any of the above laws, regulations or guidance are amended

prior to the signing of a Record of Decision for final remedial

action at the Site, EPA may modify or require modification to the

SOW and to any approved Work Plan or other deliverable

accordingly. EPA may also may require Settling Parties to

develop a new Work Plan or other deliverable accordingly, and the

Settling Parties shall conduct all activities required by the new

or modified Work Plan or other deliverable. To the extent

permitted in Paragraphs 57 and 58, the provisions of this

paragraph are subject to Dispute Resolution.

19. EPA may determine that additional tasks not inconsistent

with the NCP, including remedial investigatory work and/or

engineering evaluations, other than those specified in the

Statement of Work and modifications thereto, are part of the

RI/FS. The Settling Parties shall implement any additional tasks

which EPA determines are necessary as part of performing the

activities required under this Order, provided that such tasks

are consistent with the objectives of this Order. The additional

tasks shall be completed in accordance with the standards,

specifications, and schedule determined or approved by EPA, after

EPA has notified the Settling Parties in writing of the need to

perform the additional work and has provided the Settling Parties

with a schedule and an explanation of the additional work. To

the extent permitted by Paragraphs 57 and 58, EPA's decision to

require additional work shall be subject to Dispute Resolution.

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Enaaaement of the Settling Parties' Contractor

Designation of the Settling Parties' Project Coordinator

20. Within forty-five (45) days of the effective date of this

Order, the Settling Parties shall engage a qualified Contractor

to perform the technical activities required under this Order.

The Contractor shall employ key personnel dedicated to the RI/FS

that shall have a minimum of five (5) years of direct experience

in performing investigations and studies at hazardous waste

sites. Subcontractors retained by the Contractor shall

contribute no more than twenty-five percent (25%) of the total

work to be conducted under the agreement between the Respondent

and the Contractor, not including .the costs of laboratory

analysis, well drilling and geophysical techniques. All work

performed by said Contractor pursuant to this Order shall be

under the general direction and supervision of a qualified

individual with expertise in hazardous waste site investigation

and cleanup. The Contractor shall employ such professional staff

sufficient to perform the RI/FS prior to engagement by the

Settling Parties.

21. The Settling Parties shall provide written notice of the

engagement of the Contractor to EPA within seven (7) days after

engaging a contractor. The notice shall include a copy of the

Settling Parties' contract with the Contractor, including a

statement of qualifications, identification of project personnel,

and language dedicating the specific professional staff for

-15

specific hours devoted to the project. The Settling Parties

shall notify EPA regarding the identity and qualifications of all

subcontractors as soon as each subcontractor is engaged or at

least fourteen (14) days prior to the subcontractor's

commencement of site work, whichever occurs first. EPA shall

have the right to disapprove, based on professional

qualifications, conflicts of interest and/or deficiencies in

previous similar work, any Contractor or subcontractor or other

person engaged directly or indirectly by the Settling Parties to

conduct work activities under this Order. Any disapproval shall

be in writing.

22. Within fourteen (14) calendar days after the effective date

of this Order, the Settling Parties shall designate a Project

Coordinator who shall be responsible for the administration of

all actions called for by this Order and shall submit the

coordinator's name, address and telephone number to EPA. Any

subsequent change in the Settling Parties' Project Coordinator

shall be accomplished by notifying EPA in writing at least

fourteen (14) calendar days prior to the change.

Designation of EPA's Remedial Project Manager

23. EPA will designate a Remedial Project Manager (RPM) for

administration of its responsibilities, for oversight of the day

to-day activities conducted under the Order, and for receipt of

all written matter required by the Order. In addition, EPA will

5

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those of the authors and not those of the U.S. Environmental

Protection Agency."

29. EPA will review the deliverables required by this Order to

determine whether they are consistent with the requirements of

Appendix A and the Order and, after opportunity for review and

comment by the State, EPA will respond in writing to Settling

Parties with one of four findings:

A. Approval means that Settling Parties shall proceed

with the next scheduled RI/FS activity consistent with

the deliverable.

B. Approval with Conditions means that Settling Parties

shall proceed with the next scheduled RI/FS activity,

subject to certain required modifications or conditions

set forth in EPA comments. EPA will specify a schedule

for resubmitting the deliverable with the required

modifications or conditions as set forth in the EPA

comments. If the Settling Parties fail to resubmit the

deliverable within the specified time, EPA may order

the Settling Parties to cease work on the RI/FS

activity until such time as the modification is made or

the condition is met.

C. Disapproval with Modification Required means that

the Settling Parties shall not proceed until they

modify the deliverable to correct the noted

deficiencies delineated in EPA's comments, and resubmit

-20

the deliverable for further EPA review. Modifications

may be required in any original-submitted deliverable,

any portions of a deliverable, or any deliverable or

portion of deliverable resubmitted to EPA. EPA will

specify a schedule for resubraitting deliverables

requiring modifications.

D. Disapproval with EPA Modification means that EPA has

determined that it will modify the submission to cure

any deficiencies and/or undertake the RI/FS or any

portion of the RI/FS. The EPA response shall include

the reasons for the determination and a general

explanation as to why the Settling Parties will not be

allowed the opportunity to cure the deficiencies or to

perform the RI/FS or any portion thereof. In either

case the Settling Parties agree to reimburse EPA for :

the costs of such modification or work as an oversight

cost, as provided in Paragraph 52, Reimbursement of EPA

Response and Oversight Costs.

A finding of Approval or Approval with Conditions shall not be

construed to mean that EPA concurs with all conclusions, methods

or statements in the deliverables.

30. Any reports, plans, specifications, schedules, and

attachments or other deliverables required by this Order are

incorporated in and shall be an enforceable part of this Order.

-21

Any delay or non-compliance with such reports, plans

specifications, schedules, and attachments or other deliverables

shall be considered delay or non-compliance with requirements of

this Order and shall subject the Settling Parties to penalties

pursuant to Paragraph 60 or 64, subject to the provisions of

Paragraph 55, Excuses for Delays in Performance.

Monthly Progress Reports

31. The Settling Parties shall provide monthly written progress

reports (Progress Reports) to EPA and the State of Connecticut.

At a minimum, these Progress Reports shall describe the progress

made during the preceding month by: (1) describing the actions

which have been taken toward achieving compliance with this

Order; (2) summarizing all the results of-.sampling and tests and

all other data received by the Settling Parties; (3) summarizing ':

all costs incurred by Settling Parties in performing work under

this Order (provide only on a semi-annual basis); and (4)

describing actions, data, plans, and procedures which are

scheduled for the next month. Progress Reports shall be

submitted to the EPA RPM and the State of Connecticut by the

fifteenth (15th) day of each month following the last day of the

reporting period, beginning after the effective date of this

Order. Meetings between the the RPM, the Settling Parties'

Project Coordinator, and the Contractor shall be held at least

once per month at the EPA office in Boston, unless EPA designates

another location or determines that a monthly meeting is not

-2-2

required for a particular month. The Settling Parties and the

Contractor engaged to perform work under this Order shall also

meet with and make formal presentations to EPA at the completion

of major components of the RI/FS, as specified by the EPA RPM.

Availability of RI/FS Data

32. The Settling Parties shall submit in their monthly Progress

Reports, as described in Paragraph 31 of this Order, a summary of

results of all sampling and/or tests and all other data generated

by the Settling Parties, by their Contractor, or on the Settling

Parties' behalf, in.the course of implementation of the Order.

The full results and any underlying documentation shall be

furnished to EPA upon request.

Quality Assurance/Quality Control; Health and Safety Compliance

33. While conducting all sample collection and analysis

activities required by this-Order, the Settling Parties shall use

quality assurance, quality control, and chain of custody

procedures in accordance with the SOW, and with EPA's: "Interim

Guidelines and Specifications for Preparing Quality Assurance

Project Plan," December 1980, QAMS-005/80, "Data Quality

Objective Guidance" (EPA/540/G87/003 and 004); "EPA NEIC Policies

and Procedures Manual" (revised November 1984, EPA 330/9-78-001

R); and subsequent amendments to such guidelines. To provide

quality assurance and maintain quality control, the Settling

Parties shall submit a Quality Assurance Project Plan ("QAPP") to

-23

EPA consistent with the requirements, guidance, and schedule

contained in the Statement of Work. Upon EPA approval pursuant

to Paragraph 29, Settling Parties shall comply with the approved

Quality Assurance Project Plan.

34. The Settling Parties also shall prepare a Health and Safety

Plan as required and described in the Statement of Work. The

accepted Health and Safety Plan shall be consistent with and

implement standards promulgated by the Secretary of Labor

pursuant to Section 126 of CERCLA and Section 6 of the

Occupational Health and Safety Act of 1970.

Split Sampling

35. At the request of EPA, the Settling Parties shall provide

split or duplicate samples to EPA and/or its authorized

representatives, of any samples collected by the Settling Parties

pursuant to the implementation of this Order. Similarly, the

Settling Parties shall allow such split or duplicate samples to

be taken by EPA and/or its authorized representatives. The

"Settling Parties shall notify EPA not less than thirty (30) days

in advance of any sample collection activity. Not less than

twenty-one (21) days in advance of sample collection, or such

lesser time as approved by the RPM, the Settling Parties shall

notify EPA of the sampling date, sampling media, the number of

samples from each media, unless EPA specifies a different time

period. EPA's RPM or its contractors shall notify the Settling

-24

Parties of the opportunity to take split or duplicate samples,

and will provide the validated analytical results from their

samples to the Settling Parties when they become available.

Record Preservation

36. During the pendency of this Order and for a-period of not

less than six (6) years after EPA certification pursuant to

paragraph 65 of this Order, the Settling Parties shall preserve

all records and documents in their possession or in the

possession of their employees, agents, officials, authorized

representatives, accountants, contractors, attorneys, successors

or assigns, and parent companies, which relate in any-way to the

Site or to implementation of this Order, notwithstanding any

document retention policy to the contrary. At the conclusion of

this document retention period, the Settling Parties shall notify

EPA at least ninety (90) days prior to the destruction of-any

such records or documents.

The Settling Parties shall send such notice, accompanied by a

copy of this Order, to:

Office of Regional Counsel U.S. Environmental Protection Agency JFK Federal Building Boston, MA 02203 Attention: Gallup's Quarry Superfund Site

Upon request by EPA, Settling Parties shall deliver to EPA any or

all such records and documents or copies of any such records

and documents.

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Confidentialitv Claims

37. The Settling Parties may assert a confidentiality claim, if

appropriate, covering all or part of the information requested by

this Order pursuant to 40 C.F.R. 2.203(b). Such an assertion

shall be adequately substantiated when it is made. Neither

analytical data nor any information specified in Section

104(e)(7)(F) of CERCLA, shall be claimed as confidential by the

Settling Parties. Information determined to be confidential by

EPA shall be afforded the protection specified by 40 C.F.R. Part

2, Subpart B, and Section 104(e)(7) of CERCLA. If no such claim

accompanies the information when it is submitted to EPA, it may

be made available to the public by EPA without further notice to

the Settling Parties.

Site Access

38. All Settling Parties who own, occupy, or control property at

the Site, or property adjacent to the Site to which access is

required in order to properly carry out the terms of this Order,

shall grant access to the other Settling Parties, the Settling

Parties' authorized representatives, and EPA and their officers,

employees, agents, contractors, consultants and other authorized

representatives for purposes of implementing this Order.

39. To the extent that access to, use or ownership of, or

easements over the Site or property other than the Site is

required for proper and complete implementation of this Order,

-26

the Settling Parties shall use their best efforts to obtain

access agreements or other interests in such property within

thirty (30) days of the effective date of this Order. For

purposes of this Paragraph "best efforts," include, but are not

limited to, providing payment of money in consideration of access

to property.

40. Such agreements or other interests obtained pursuant to the

preceding paragraph shall, at a minimum, allow the Settling

Parties and their authorized representatives, EPA and its

designated coordinators, agents, employees, contractors,

consultants, and other authorized representatives to enter freely

and move about the Site at all times for the purpose of

implementing this Order or overseeing the implementation of Work

under this Order. In the event that Settling Parties fail to

obtain any necessary access agreements within the time period

specified above, the Settling Parties shall notify EPA and the

State in writing within five (5) days thereafter. Such

notification shall include a description of the efforts made by

the Settling Parties to obtain the necessary access and the

reason for their lack of success. The Settling Parties shall

reimburse EPA for any costs EPA may incur in exercising their

statutory authority to gain access to the Site; reimbursement

shall be provided as in Paragraph 52, Reimbursement of EPA

Response and Oversight Costs.

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Endanaerment and Emergency Response

41. Upon the occurrence of any event during the RI/FS that

causes or threatens any release of hazardous substances,

pollutants or contaminants from the Site into the environment or

that endangers the public health, welfare, or the environment,

the Settling Parties shall immediately take all appropriate

action to prevent, abate or minimize such release or

endangerment. The Settling Parties shall also orally notify the

EPA RPM within twenty-four (24) hours, or in the event of the EPA

RPM's unavailability, the Settling Parties shall notify within

the same time period the Regional Duty Officer of the Emergency

Planning and Response Branch, EPA Region I, telephone-(617) 223

7265. In addition, the Settling Parties shall comply with the

notification requirements of Connecticut law. The Settling

Parties shall act in accordance with all applicable provisions of =

the Health and Safety Plan prepared pursuant to the Statement of

Work.

42. The Settling Parties shall submit a written report to EPA

within five (5) days after each such event setting forth: (i)

the events that have occurred; (ii) the measures taken and to be

taken to mitigate any harm caused or threatened by the event; and

(iii) the measures taken and to be taken to prevent the

reoccurrence of such an event.

-2-8

43. Regardless of whether or not such a report is made to EPA,

if EPA determines- that activities in compliance or noncompliance

with this Order have caused or may cause a release of a hazardous

substance, pollutant or contaminant or a threat to the public

health or welfare or to the environment, EPA may: (i) order the

Settling Parties to stop further implementation of this Order for

such period of time as may be needed to abate such release or

threat; and/or (ii) undertake any action which EPA determines is

necessary to abate such a release or threat.

Use of Resource Conservation and Recovery Act Facilities

44. All facilities used by the Settling Parties for the off-site

transfer, treatment, storage or disposal of hazardous substances

removed from the Site must be in compliance with the applicable

requirements of the Resource Conservation and Recovery Act

(RCRA), as amended, and relevant state law. The Settling Parties

are responsible for complying with these requirements, including

fulfilling the standards applicable to generators of hazardous

waste, found at 40 C.F.R. Part 262. In particular, this

responsibility includes using and signing manifest forms for

hazardous waste leaving the Site. Further, the Settling Parties

must designate, in a report to EPA, any facilities that the

Settling Parties propose to use for such off-site transfer,

storage, treatment or disposal, and EPA must approve the use of

such proposed facilities prior to the shipment of hazardous

substances from the Site.

-29

Other Lavs

45. All actions required to be taken pursuant to this Orc".er

shall be undertaken in accordance with the requirements of all .

applicable or relevant and appropriate state and federal laws and

regulations (ARARs), including: CERCLA; laws relating to

occupational safety and health; and other federal and State

environmental laws as defined in EPA and State policy in effect

at the time of the signing of the ROD. Pursuant to Section

121(e)(l) of CERCLA, no federal, state or local permits are

required for work conducted under this Order which is on the Site

or on suitable areas in very close proximity to the Site

necessary for implementation of such work.

46. Other agencies, including the Occupational Safety and Health

Administration (OSHA) and the Fish and Wildlife Service (F&WS),

may be called upon to review the conduct of work under this

Order. In the event that two or more federal or state laws or

regulations are applicable, the more stringent of the conflicting

provisions shall apply; provided, however, that this provision

shall not limit EPA's authority under Section 121(d) of CERCLA.

Public Review of RI/FS Report

47. When EPA determines the RI/FS required under this Order is

acceptable for public review, the RI/FS shall be made available

by EPA for public comment for a period of not less than thirty

(30) days. The dates and length of the public comment period

-30

shall be established by EPA. Following the public review and

comment period, EPA may refer the FS Report back to the Settling

Parties for revision pursuant to public comments, and EPA and the

State comments. In addition, the Settling Parties shall provide

information for the Responsiveness Summary as requested by EPA,

pursuant to all applicable EPA guidance documents. The Settling "*

Parties shall prepare all portions of a Draft Responsiveness

Summary specified by EPA. EPA will prepare the final

Responsiveness Summary for the RI/FS.

Community Relations

48. EPA shall be responsible for preparing a Community

Relations Plan and conducting a community relations program. The

Settling Parties and the Contractor engaged to conduct the RI/FS

under this Order shall, consistent with the Community Relations

Plan: (i) attend and participate in public meetings regarding the

Site, including in the development of graphic materials, to the

extent specified by the RPM; (ii) prepare fact sheets concerning

the Site and activities conducted under this Order for submission

to the RPM; and (iii) provide timely and appropriate responses to

inquiries from the public at the request of the RPM.

Financial Assurance; Insurance

49. Within thirty (30) days after the effective date of this

Order and annually thereafter until certification of the work

under Paragraph 65 of this Order, one or more of the Settling

-31

Parties shall demonstrate to EPA that they meet one of the

financial assurance mechanisms specified in 40 CFR 264.143 for

the estimated costs of work to be performed by Settling Parties

under this Order. This assurance may be provided in the form of

the most recent certified financial statement available for any

of the Settling Parties showing the information specified in 40

CFR 264.143(f).

50. At least seven (7) days prior to commencing any on-site work

under this Order, the Settling Parties shall secure, and shall

maintain for the.duration of this Order, comprehensive general

liability and automobile insurance with aggregate limits of

$5,000,000 (five million dollars). The United States shall be

named as an insured for all such insurance policies. Within the

same time period, the Settling Parties shall provide EPA with '

certificates of such insurance and a copy of each insurance

policy. If the Settling Parties demonstrate 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 the Settling Parties need provide only that

portion of the insurance described above which is not maintained

by the contractor or subcontractor.

51. For the duration of this Order-, the Settling Parties shall

satisfy, or shall ensure that their contractors and

subcontractors satisfy, all applicable laws and regulations

-32

regarding worker's compensation insurance for all persons

performing the work on behalf of the Settling Parties in

furtherance of this Order.

Reimbursement of EPA Response and Oversight Costs

52. The Settling Parties shall reimburse the Hazardous

Substances Superfund for all response costs, including oversight

costs and interest, incurred after the effective date of this

Order by the United States in connection with the RI/FS and this

Order, including without limitation costs incurred by EPA under

or in connection with a contract or arrangement between EPA and a

qualified person to assist EPA in overseeing and reviewing the

conduct of activities required under this Order. Reimbursable

response costs shall include all direct costs related to the

RI/FS and this Order and all indirect costs calculated in

accordance .with EPA policy, including without limitation: time

and travel costs of EPA personnel regarding RI/FS activities

(including access and community relations); contractor costs;

costs under a cooperative agreement; costs related to discussing

the interpretation of Order provisions or reviewing any report

delivered pursuant to this Order; costs related to resolving

disputes which arise under this Order; the costs of doing and/or

redoing any of the Settling Parties' obligations under this

Order; EPA, contractor, and cooperative* agreement costs related

to the preparation of a Baseline Risk Assessment; and any

-3-3

interest that accrues from the date on which payment becomes due

pursuant to Paragraphs 53 and 54.

53. On a periodic basis, EPA will submit to the Settling

Parties a bill for response costs incurred by EPA with respect to

the RI/FS and this Order. This bill will consist of a line-item

summary of costs incurred during the preceding year; the summary

will include a breakdown of costs by category, including without

limitation payroll, travel, indirect costs, and contracts, and a

brief narrative of work related to such costs (generally one to

two paragraphs in length). The Settling Parties shall, within

forty-five (45) days after receipt of each annual bill, remit a

certified check payable to the Hazardous Substances Superfund for

the amount of such bill. The Settling Parties shall include the

name of the Site, the Site identification number 01B7, and the '

docket number for this Order on the check and mail the check with

a cover letter to:

U.S. Environmental Protection Agency Region I

Attn: Superfund Accounting P.O. Box 360197 M

Pittsburgh, PA 15251

A copy of the transmittal letter and the check shall be provided

simultaneously to the EPA Remedial Project Manager.

54. If the Settling Parties dispute a bill or any portion of a

bill submitted by EPA, the Settling Parties may initiate dispute

resolution pursuant to the procedures of Paragraph 57, provided,

-34

however, that the Settling Parties notify EPA in writing within

twenty-one (21) days after receipt of the disputed bill and that

the Settling Parties pay all undisputed portions of the bill in-

accordance with the provisions of this reimbursement section. If

EPA determines that the Settling Parties acted in good faith in

invoking dispute resolution concerning a response or oversight "*

cost, the time for payment of the disputed portion of the bill

will be extended until the dispute is resolved; interest,

however, shall accrue on the disputed response or oversight cost

as if no extension of the time for payment had been granted. If

the Settling Parties fail to raise a dispute within twenty-one

(21) days of their receipt of the bill, the Settling Parties

remain obligated for payment of the entire amount of the bill on

the original payment due date, interest shall accrue on any

unpaid portion of the bill from the original payment due date,

and EPA may seek stipulated penalties or otherwise act to enforce

the Settling Parties' compliance with this section and the Order.

Excuses for Delays in Performance

55. With respect to the Settling Parties' compliance with any

interim or final time deadline set forth in this Order, no

stipulated penalties or other sanctions will be imposed for delay

directly caused by the following which could not have been

overcome by the Settling Parties' due diligence: (i) an act of

God; (ii) any delay caused by the public review and comment

process as provided in the Work Plan and this Order; (iii) any

-35

other cause beyond the control of the Settling Parties; provided,

however, that increases in the cost of performance of the RI/FS

shall not excuse such performance nor affect the applicability 'of

the penalty provisions or other sanctions which are provided for

under this Order. Such penalties and sanctions shall be avoided

only if, and only to the extent that, delays directly caused by

conditions specified in (i) through (iii) above materially

interfered with or prevented the Settling Parties' execution of

their responsibilities during the period of such delay. The

Settling Parties further agree to use their best efforts to

minimize any delay which may result. The Settling Parties

acknowledge that they will have the burden of justifying excuses

for delay in performance under this Paragraph..

56. The Settling Parties shall orally notify the EPA RPM within '

forty-eight (48) hours in the event that circumstances occur

which the Settling Parties assert should trigger the excuse

provisions of this section, and shall identify with specificity

the cause of such delay and the estimated duration of such delay.

Within five (5) days after the Settling Parties first become

aware of such circumstances4 the Settling Parties shall supply to

EPA in writing an explanation of the cause(s) of any actual or

expected delay or noncompliance, the anticipated duration of any

delay, the measures taken and to be taken by the Settling Parties

to prevent or minimize the delay or correct the noncompliance,

and the timetable for implementation of such measures. Failure

-36

to notify EPA, in writing, shall result in a waiver of the

Settling Parties' right to assert that the delay should be

excused under the terms of this section.

Dispute Resolution

57. If the Settling Parties object to any EPA notice of

disapproval or decision made pursuant to this Order, including

any decision which has resulted in the assessment of stipulated

penalties, the Settling Parties shall notify EPA in writing of

their objections within fourteen (14) days of receipt of the

notice. EPA shall communicate with the Settling Parties on the

disputed matter and shall have fourteen (14) days from the

receipt by EPA of the notification of objection to reach

agreement. If agreement cannot be reached on any issue within

this fourteen (14) day period, EPA shall provide a written

statement of its decision and the basis therefor to the Settling

Parties, and the Settling Parties shall implement the activities

required by the EPA decision beginning no later than five (5)

days after receipt of the EPA statement. Except as specifically

provided herein, engagement of a dispute resolution among the

parties shall not be cause for the delay of any work.

58. If the Settling Parties object, in writing, to an EPA

decision involving a substantial modification to the Statement of

Work or a major deliverable, an EPA manager above the level of

the Geographic Section Chief within EPA Region I shall mediate

-37

and resolve the dispute. The designated EPA manager shall

determine, in his or her sole discretion, whether the decision in

fact involves a substantial modification to the Statement of Work

or major deliverable. During the pendency of a dispute under

this paragraph, the accrual of stipulated penalties which relate

to nonperformance of the work required by the disputed EPA

decision shall be suspended. Disputes under this Paragraph shall

in all other respects be governed by Paragraph 57 of this Order.

59. In the event that the Settling Parties do not implement the

activities required by the EPA decision, the EPA Regional

Administrator may take such civil enforcement actions-against the

Settling Parties as may be provided by statutory or equitable

authorities, including, but not limited to, the assessment of

such civil penalties or damages as are authorized by Sections 122 ':

and 109 of CERCLA. In such an event, EPA retains the right to

perform additional studies and to conduct a partial or complete

RI/FS pursuant to its authority under CERCLA and to recover the

costs thereof from the Settling Parties.

Stipulated Penalties for Delays in Performance

60. For each day that the Settling Parties fail to complete a

major deliverable identified in Table 1 of the SOW or to comply

with any time deadline for such major deliverable established

pursuant to this Order, the Settling Parties shall pay to EPA and

the State the sums set forth below as stipulated penalties:

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Period of Failure to Comply Penalty Per Day

1st - 7th day $ 1,000

8th - 14th day $ 2,000

each day thereafter $ 3,500

Penalties shall begin to accrue on the day after performance is

due or the day a violation occurs, and shall continue to accrue

through the final day of the correction of the noncompliance or

completion of the activity.

61. For each day that the Settling Parties fail to comply with

any deadline established pursuant to this Order other than

deadlines governed by Paragraph 60 hereto, stipulated-penalties

to EPA in the amount of five hundred dollars ($500) per day shall

accrue on the day after performance is due and shall continue to

accrue through the final day of the correction of the

noncompliance or completion of the activity.

62. Any penalty, accruing under Paragraphs 60 or 61 shall be due

and payable within fourteen (14) days of the receipt of a written

demand by EPA. Payment of such penalty shall be made by

certified check payable to the Hazardous Substances Superfund,

shall reference the Gallup's Quarry Site, and the EPA Region and

Site/Spill ID# 01B7, and shall be mailed to the following address

with a notation of the docket number of this Order:

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Region I U.S. Environmental Protection Agency

Attn: Superfund Accounting P.O. Box 360197 M

Pittsburgh, PA 15251

A copy of the certified check shall be sent to the Remedial

Project Manager within five (5) days of payment. The stipulated

penalties set forth in this section do not preclude EPA from

electing to pursue any other remedies or sanctions which may be

available to EPA by reason of the Settling Parties' violation of

this Order or the Settling Parties' failure or refusal to comply

with any of the requirements of this Order, except that EPA

agrees that any amount of stipulated penalties recovered by EPA

for a particular violation of this Order shall be deducted from

any amount of civil penalties recoverable by EPA for the same

violation of the Order. Such remedies and sanctions include

injunctive relief, the assessment of such civil penalties or

damages as are authorized by Sections 122 and 109 of CERCLA, or

the performance of a federally-funded response action, and a

corresponding suit for reimbursement of costs incurred by the

United States and the State.

63. If the Settling Parties invoke dispute resolution regarding

any decision which has resulted in the assessment of stipulated

penalties, the Settling Parties shall pay all stipulated

penalties for which EPA has made a written demand into an

interest-bearing escrow account within fourteen (14) days of

receipt of the EPA demand. The Settling Parties shall pay

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penalties into this account as they continue to accrue, at least

every seven (7) days. Within seven (7) days after receipt of the

EPA decision regarding the disputed matter, the escrow agent

shall pay the balance of the account to the prevailing party

identified in the EPA decision.

""

Civil Penalties for Noncompliance

64. The Settling Parties are advised that violations of this

Order or any portion thereof may subject them to civil penalties

of up to $25,000 per violation and $25,000 for each day in which

such violation continues, as provided in Sections 109 and 122 of

CERCLA, 42 U.S.C. 9609, 9622. The Settling Parties are

further advised that they may also be subject to penalties of up

to $75,000 for each day during which a second or subsequent

violation continues.

Certification of the Settling Parties'

Performance of the Work Activities

65. Upon EPA's issuance of the Record of Decision, EPA shall

determine if the Settling Parties have met all of their

responsibilities under Appendix A (the Statement of Work), and

under the provisions of the Order, including payment of oversight

costs and any stipulated penalties or other penalties or damages

that the Settling Parties may have incurred during the course of

their activities under the Order. If EPA determines that such

responsibilities have been satisfied, EPA will, after issuance of

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the Record of Decision for the Site, certify to the Settling

Parties that their responsibilities under the Statement of Work,

the Work Plan and this Order have been completely and

successfully discharged.

Covenant Not to Sue

66. Upon certification by EPA that the Settling Parties have

completed the RI/FS in accordance with this Order, EPA covenants

not to sue or initiate an administrative proceeding or civil

action against the Settling Parties for completion of the RI/FS

for any operable units covered by the signed Record of Decision,

or for any other activities performed or costs incurred pursuant

to the Order, including oversight costs incurred while performing

the acitivities covered under the Statement of Work and this

Order. This covenant not to sue shall not take effect and shall

be rendered null and void in the event that the Settling Parties

fail to make all of the payments required of them by this Order.

Settling Parties are not released from liability, if any, for any

actions taken beyond the terms of this Order regarding removals,

other operable units, remedial design/remedial action of this

operable unit, or activities arising pursuant to Section 121(c)

Of CERCLA, 42 U.S.C. 9621(C).

Denial of Liability

67. By entering into this Order, or by taking any action in

accordance with it, the Settling Parties agree to be bound by all

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of the terms hereunder. However, the Settling Parties do not

admit any of the factual allegations, findings or legal

determinations contained in this Order or in the Statement of

Work. The Settling Parties do not admit any liability for any

purpose, nor do they admit or assume any liability for the

alleged release or threat of release of any hazardous substance,

pollutant or contaminant into the environment from the Site or

anywhere else.

68. The participation of any Settling Party in this Order shall

not be admissible in or used against any Settling Party in any

judicial or administrative proceeding or action, or used against

the Settling Parties as a collateral estoppel, except in an

action by EPA to enforce the terms of this Order, or in any

action to which EPA is a party which alleges an injury based on

the acts or omissions of the Settling Parties in connection with

this Order. However, the terms of this Order and the

participation of the Settling Parties shall be admissible in any

action or proceeeding brought by any Settling Parties to enforce

any contractual obligations imposed by any agremeent among the

Settling Parties.

EPA's Reservations of Rights

69. EPA reserves the right to bring an action against the

Settling Parties under Section 107 of CERCLA for recovery of: (i)

all past response costs incurred by the United States at the Site

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not reimbursed by the Settling Parties; (ii) any costs incurred

in the event that EPA performs all or a portion of the Ri/FS; and

(iii) any future costs incurred by the United States in

connection with response activities conducted under CERCLA at

this Site. EPA expressly reserves any and all rights and

defenses that it may have to enforce this Order against the

Settling Parties, including EPA's right under this Order both to

disapprove of work performed by the Settling Parties and to.

require that the Settling Parties perform tasks in addition to

those detailed in this Order. In addition, EPA reserves the

right to undertake actions under Section 104 of CERCLA, including

removal and/or remedial actions, at any time and to perform any

and all portions of the RI/FS which the Settling Parties fail to

perform to EPA's satisfaction. Except as expressly provided

herein, issuance of this Order shall not affect or limit in any

way any rights which EPA may have in relation to any liabilities

or obligations which the Settling Parties or other persons may be

subject to under CERCLA or other laws by virtue of any

connections that the Settling Parties or those other persons have

or may have had with the Site. EPA reserves any and all rights

to take any enforcement actio'n pursuant to CERCLA and/or any

other available legal authority, including the right to seek

injunctive relief, response costs, monetary penalties, and

punitive damages for any violation of law or this Order.

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70. EPA agrees not to file an action for recovery of $430,D47.75

in past direct and indirect costs covered by the Cost Recovery

Administrative Agreement, EPA CERCLA Docket 1-93-1079, provided

that the Settling Parties have fulfilled all of their obligations

under that Agreement.

71. Notwithstanding any other provision of this Order, EPA shall

retain all of its information, gathering, entry, inspection, and

enforcement authorities and rights under CERCLA and other any

.other applicable law, regulation, or permit.

?

Settling Parties/ Reservation of Rights

72. Except as otherwise provided in this Order, the Settling

Parties expressly reserve all rights, claims, demands and causes

of action they may have against any and all other persons and

entities who are not parties to this Order and as to each other

for matters not covered hereby. EPA recognizes that the Settling

Parties may have the right to seek contribution, indemnification,

or any other available remedy against any persons who may be

found responsible for or liable for contribution or indemnity or

otherwise for any amounts which have been or will be expended by

the Settling Parties in connection with the Site.

73. Notwithstanding any obligation in this Order requiring the

Settling Parties to make any records, documents or other

materials available to EPA, nothing herein shall be construed to

http:430,D47.75

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be a waiver of any rights a Settling Party may have to assert the

attorney-client or attorney work product privileges as to those

materials. However, no analytical information or information

specified in Section 104(e)(7)(F) of CERCLA shall be subject to

any such privilege.

Other Claims

74. Except as expressly provided herein, nothing in this Order

shall constitute or be construed as a release or covenant not to

sue regarding any claim, cause of action, or demand in law or

equity against any person, firm, trust, trustee, joint venture,

partnership, corporation, or other entity for any liability it

may have arising out of or relating in any way to the generation,

storage, treatment, handling, transportation, release/ or

disposal of any hazardous substances, hazardous wastes,

pollutants, or contaminants found at, taken to, or taken from the

Site. Except as expressly provided herein, this Order shall not

estop or limit any legal or equitable claims of the United States

against the Settling Parties, their agents, contractors, or

assigns, including, but not limited to, claims related to

releases of hazardous substances or other pollutants or

contaminants.

75. In consideration of the entry of this Order, the Settling

Parties agree not to assert any causes of action, claims, or

demands against the United States, including the Hazardous

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Substances Superfund or EPA (whether directly or as the United

States) for the costs of the RI/FS or any other costs incurred

pursuant to this Order. This Order does not constitute any

decision on preauthorization of funds under Section 111(a)(2) of

CERCLA. The Settling Parties further agree not to assert any

causes of action, claims, or demands against any "Hepartment or

agency of the United States for costs incurred by such department

or agency in performing oversight functions pursuant to a

cooperative agreement with EPA.

Indemnification

76. The United States does not assume any liability by entering

into this Order or by virtue of any designation of the Settling

Parties as EPA's authorized representatives. The Settling

Parties agree to indemnify and save and hold harmless the United

States Government and its agencies, departments, agents, offices,

employees, and representatives from any and all. claims or causes

of action arising from or on account of acts or omissions of the

Settling Parties, their officers, employees, agents, servants,

receivers, successors, trustees, assignees, or contractors in

carrying out the activities pursuant to this Order. The United

States shall not be held out as a party to, or in any other way

be held liable under, any contract entered into by the Settling

Parties or by the Contractor in carrying out the activities

pursuant to this Order.

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Waiyer of Settlement Conference

77. In consideration of the communications between the Settling

Parties and EPA, prior to the issuance of this Order concerning

its terms, Settling Parties hereby agree that there is no need

for a settlement conference prior to the effective date of this

Order.

Notice to the State and the Federal Natural Resource Trustees

78. Pursuant to the requirements of Sections 121 (f) and

104 (b) (2) of CERCLA, EPA has notified the State of Connecticut of

the scope of the response action, the negotiations with the

potentially responsible parties, and of the issuance of this

Order.

79. Pursuant to Section 122(j) of CERCLA, EPA has notified the

Federal Natural Resource Trustees of the scope of the response

action, the negotiations with the potentially responsible

parties, and of the issuance of this Order.

Modification of Order

80. This Order, with the exc

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