■CT _
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Break*UNITED STATES ENVIRONMENTAL PROTECTION Ad^f^
REGION VII726 MINNESOTA AVENUE
KANSAS CITY, KANSAS 66101
JJUN 1 8 >991
VIA OVERNIGHT MAIL
Peter Gillon, Esq.Weil, Gotshal & Manges 1615 L St., N.W. Washington, D.C. 20036
RECEIVED
JUN 191991
REME aeenoN
RE: Administrative Order on Consent for the InterChem Site.Alton. Iova
Dear Peter:
Enclosed please find a copy of the signed, file-stamped Administrative Order on Consent for the above-captioned matter (Docket No. VII-91-F-0021). I understand that you will distribute copies of the AOC to all other members of the PRP group. Pursuant to paragraph 65 of the Order, all dates for activities set forth in the AOC will be calculated from today's date.
EPA appreciates the group's efforts and willingness to address the problems posed by the site. If you need any further information, please contact me at (913) 551-7714.
Sincerely,' (-6, Li, cT?/,
Belinda Holmes Assistant Regional Counsel
cc: Jim Colbert, SPFD
30306918
Superfund
UNITED STATES ENVIRONMENTAL PROTECTION AGENCYREGION VII
726 MINNESOTA AVENUE KANSAS CITY, KANSAS 66101
IN THE MATTER OF:
ARLIN H. POTTEBAUM Hospers, Iowa
WILLIAM A. BLOSKAS Greeley, Colorado
W. H. BLOSKAS & ASSOCIATES, Inc.
Greeley, Colorado
FARNAM- Companies, Inc. Phoenix,.Arizona
KALO, Inc.Overland Park, Kansas
LOVELAND INDUSTRIES, Inc. Greeley, Colorado
CORNBELT CHEMICAL COMPANY McCook, Nebraska
TERRA INTERNATIONAL, Inc. Sioux City, Iowa
and
DURVET, Inc.Blue Springs, Missouri
ADMINISTRATIVE ORDER
ON CONSENT
Docket No. VII-9l-F-0021
Proceedings under Section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9606.
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PRELIMINARY STATEMENT
1. This Consent Agreement and Consent Order (Order) is
issued pursuant to the authority vested in the President of the
United States by Section 106(a) of the Comprehensive Environmen
tal Response, Compensation, and Liability Act of 1980 (CERCLA),
as amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA), 42 U.S.C. § 9606(a), and delegated to the Adminis
trator of the United States Environmental Protection Agency on
January 23, 1987, by Executive Order 12580, and further delegated
to the Regional Administrator by EPA delegations Nos. 14-14A and
14-14B. The objective of this Order is to respond to a release
or threatened release of a hazardous substance, pollutant or
contaminant, consistent with the National Contingency Plan (NCP).
By entering into this Order, Respondents do not admit to any of
the factual or legal determinations made by EPA and set forth
herein. Except as specifically set forth in Paragraphs 27 and 28
herein, Respondents reserve any rights and defenses Respondents
may have regarding liability in this or any subsequent proceed
ings regarding the InterChem site. Neither this Order nor any
action taken pursuant to this Order shall constitute an admission
of liability by Respondents with respect to the InterChem site.
Notice of the issuance of this Order has been given to the State
of Iowa through the Iowa Department of Natural Resources (IDNRj.
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DEFINITIONS
2. As used in this Order, the following shall be defined
terms:
A. "Respondents" shall mean the parties who have
agreed to enter into this Administrative Order on Consent with
the EPA and whose signatures are affixed hereto, their employees,
agents, successors, and assigns. The term "Respondents" shall
also include any party admitted by amendment to this Order as set
forth in Paragraph 66 below.
C. "The Contractor" shall mean a gualified Contractor
retained by Respondents to perform any work pursuant to this
Order and approved by EPA and any subcontractor, employee, repre
sentative, agent or designee thereof.
D. "EPA" shall mean the United States Environmental
Protection Agency and any successor departments or agencies of
the United States government.
E. "IDNR" shall mean [the Iowa Department of Natural
Resources and its representatives.
F. "The Parties" shall mean the Respondents and EPA.
G. "Deliverable(s)" shall mean all reports, plans or
other documents reguired to be submitted pursuant to the terms of
this Order.
H. "The Site" shall mean the InterChem facility locat
ed on both sides of 10th Street between 1st and 2nd Avenue in the
east central portion of Alton, Iowa, including lots 2, 3, 4, and
5 in Block 3 in the Auditor'/s Subdivision and Replat of Block 3,
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Original Plat; block 4, Original Plat? and a strip of land along
the railroad tracks running parallel to First Avenue, which is
located in the NE h of the SW \ of Section 2, Township 94 North,
Range 44 West of the 5th P.M.
FINDINGS OF FACT
3. The InterChem facility (the site) is located on both
sides of 10th Street between 1st and 2nd Avenue in the east
central portion of Alton, Iowa, including lots 2, 3, 4, and 5 in
Block 3 in the Auditor's Subdivision and Replat of Block 3,
Original Plat; block 4, Original Plat; and a strip of land along
the railroad tracks running parallel to First Avenue, which is
located in the NE1/4 of the SW1/4 of Section 2, Township 94
North, Range 44 West of the 5th P.M.
4. One portion of the site is comprised of an office/ware
house building located to the north of 10th Street on block 4.
This building is divided into 1) an office area, 2) a hazardous
waste storage area, 3) a finished goods storage area, 4) a liquid
processing area, 5) a raw materials storage area, 6) a packaging
area, 7) a blending area, and 8) shower and lunch facilities. To
the south of 10th Street on block 3 is a concrete pad which
served as a base for a toxaphene storage tank. Located on the
strip of land between the railroad tracks and First Avenue are
four storage sheds, liquid storage facilities and a concrete pad.
5. The site is located two blocks to the east of the
central business district. The city park, including the city
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swimming pool, are to the east of the site. Mixed business and
residential districts are located to the north and south of the
site. A small meat packing business is located approximately
one-half block west of the toxaphene spill area.
6. From 1976 to 1989, the Site was used for the formulation
of pesticides. At various times the business was operated under
the names Silak, Inc., InterChem, Inc., WHB Specialties, Inc.,
and DeNova Industries, Inc.
7. At various times, Respondents William A. Bloskas and
Arlin H. Pottebaum were shareholders, operators and/or directors
of the four companies mentioned in Paragraph 6. The United
States Small Business Administration (SBA) held a foreclosure
auction of equipment at the Site in April, 1989.
8. In 1989, after the site was no longer used for the
formulation of pesticides, the site was reportedly used as a
facility for the assembly and painting of hog containment pens.
9. The following chemicals have been detected at the site:
toxaphene, lindane, A-BHC, B-BHC, D-BHC, methoxychlor, malathion,
heptachlor, heptachlor epoxide, aldrin, endosulfan, endosulfan
sulfate, endrin, dieldrin, chlordane, DDE, DDD, DDT, coumaphos,
tetrachlorvinphos, fluoranthene, cyclohexanone, dimpylate,
strychnine, polychlorinated biphenyl (PCB), ethyl benzene, xyl
ene, toluene, naphthalene, cyclohexanone, diethyl phthalate,
limonene, hexadecanoic acid and Captan. Also, samples collected
by the Iowa Department of Natural Resources detected diazinon,
carbaryl and ethylenebisdithiocarbamic salt (zineb).
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10. Early in 1983, toxaphene was spilled from the toxaphene
storage tank onto the concrete pad south of 10th Street. An
April 1983 inspection revealed that the toxaphene storage tank
had been rinsed three times and all toxaphene removed from its
exterior. Soil samples taken from the spill area contained up to
110.000 parts per million (ppm) toxaphene. In November 1983, a
second clean-up action in the area of the concrete pad reduced
levels to 120 ppm in the soil surrounding the tank. Samples
taken from the concrete pad revealed concentrations of up to
120.000 ppm toxaphene in the cracks of the pad. Analysis of two
concrete dust samples collected in June, 1989 by EPA revealed
toxaphene levels of 160 and 120 ppm.
11. In March, 1989, EPA personnel visited the site to
observe the conditions of the facility. Inspectors noted that
some clean-up activity had occurred; however, a large quantity of
hazardous material remained at the site. Product was spilled on
the concrete floor in the building.
12. In April 1989, EPA personnel investigated the site and
collected samples from the site. Analysis of the samples re
vealed lindane levels of up to 1600 ppm in floor sweepings col
lected from the warehouse. Leakage from two 55-gallon drums
believed to contain toxaphene was also documented. In addition,
samples taken from the floors, walls, shelves and equipment in
the manufacturing building were found to contain residues of
pesticides.
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13. In April 1989, the SBA held an auction at the site at
which the SBA sold some of the assets of Respondent operators and
owners of the pesticide formulating businesses. The activity
connected with conducting the auction at the site caused pesti
cide product and waste to be released from the formulating equip
ment and drums into the environment outside the building.
14. In June 1989, EPA conducted a more extensive removal
assessment at the site. Soil samples, wipe samples, dust samples
and samples from drums were collected and waste pesticide materi
al remaining on the site was inventoried. Analysis of the sam
ples revealed the presence of the chemicals identified in Para
graph 9 at the Site.
15. According to EPA's Weight of Evidence Classification
System for Carcinogenicity, the following compounds are Class B2
carcinogens: toxaphene, A-BHC, heptachlor, heptachlor epoxide,
aldrin, dieldrin, chlordane, DDE, DDT, and Captan. Lindane is
classified as a B2-C carcinogen. Tetrachlorvinphos and B-BHC are
classified as C carcinogens. A Class B2 designation indicates
^hat there is evidence that the substance causes cancer in ani
mals but insufficient evidence exists that the substance causes
cancer in humans. A Class C designation indicates that the
substance is a possible human carcinogen.
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CONCLUSIONS OF LAW
16. Respondents are all "persons" as defined in Section
101(22) Of CERCLA, 42 U.S.C. § 9601(21).
17. Toxaphene, lindane, A-BHC, B-BHC, D-BHC, methoxychlor,
malathion, heptachlor, heptachlor epoxide, aldrin, endosulfan,
endosulfan sulfate, endrin, dieldrin, chlordane, DDE, DDD, DDT,
coumaphos, ethylbenzene, xylene, naphthalene, diethyl phthalate,
fluoranthene, toluene, cyclohexanone, strychnine, dimethoate,
Captan, diazinon, ethylenebisdithiocarbamic salt, carbaryl and
PCBs are "hazardous substances" as defined in Section 101(14) of
CERCLA, 42 U.S.C. § 9601(14).
18. The InterChem site property as described in this Order,
as well as the formulation and storage equipment located therein,
are "facilities" as defined in Section 101(9) of CERCLA, 42
U.S.C. § 9601(9).
19. The spilling, leaking, escaping, and emitting of haz
ardous substances into the environment at the site and the dis
carding and/or abandonment of pesticide-contaminated containers
at the site constitute "releases" as defined by Section 101(22)
of CERCLA, 42 U.S.C. § 9601(22), and pose the threat of further
releases of hazardous substances into the environment as defined
by Section 101(22) of CERCLA, 42 U.S.C. § 9601(22).
20. Respondent William A. Bloskas is an "operator" within
the meaning of Section 101(20) of CERCLA, 42 U.S.C. § 9601(20).
21. Respondent Arlin Pottebaum is an "owner" and "operator"
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within the meaning of Section 101(20) of CERCLA, 42 U.S.C.
§ 9601(20).
22. Respondent SBA is an "operator" within the meaning of
Section 101(20) Of CERCLA, 42 U.S.C. § 9601(20).
23. Respondents Farnam Companies, Inc. (Farnam), Kalo, Inc.
(Kalo), Loveland Industries, Inc. (Loveland), Cornbelt Chemical
Company (Cornbelt), W. H. Bloskas & Associates, Inc. (WHB
Assoc.), Terra International, Inc. (Terra) and Durvet, Inc.
(Durvet) are "personfs] who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a transport
er for transport for disposal or treatment, of hazardous sub
stances" at a facility within the meaning of Section 107(a)(3) of
CERCLA, 42 U.S.C. § 9607(a)(3).
24. Respondents are each liable pursuant to Section 107(a)
of CERCLA, 42 U.S.C. § 9607(a), for all costs associated with the
removal activities required by this order.
DETERMINATION|
25. The Regional Administrator of EPA, Region VII, based on
the Findings of Fact and Conclusions of Law recited above, has
determined that:
A. There is an imminent and substantial endangerment
to public health, welfare, or the environment because of an
actual or threatened release of hazardous substances from the
facility; and
B. The response actions required by this Order are
necessary to protect the public health and welfare and the envi
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ronment and that said response actions are consistent with the
provisions of CERCLA and the NCP.
EFFECT OF SETTLEMENT
26. Respondents dispute the factual allegations and legal
conclusions contained herein. The execution of this Order is not
an admission of fact or liability with respect to any claim
raised by any party, including any third party, relating to the
matters set forth herein.
ORDER
27. Based on the foregoing, but without trial or adjudica
tion of any issues of fact or law, and without Respondents'
admissions of any fact or finding of liability, IT IS HEREBY
ORDERED AND AGREED to by the Parties that:
PERSONS COVERED
28. This Order shall be binding upon Respondents, their
agents, successors and assigns and upon all persons acting on
behalf of the Respondents including, but not limited to, contrac
tors and consultants acting for the Respondents.
29. Respondents admit and will not contest EPA's jurisdic
tion to issue this Order. Respondents agree to undertake all
actions required by the terms and conditions of this Order.
30. All activities undertaken by Respondents pursuant to
this Order shall be carried out in accordance with all applicable
federal, state and local laws and regulations as well as all
11
applicable EPA guidance as may be provided to Respondents by EPA.
WORK PLAN
31. Within sixty (60) days of the effective date of this
Order, Respondents shall submit a detailed Work Plan to the EPA
Remedial Project Manager, Jim Colbert, 726 Minnesota Avenue,
Kansas City, Kansas, 66101 for review and approval. The Work
Plan shall address the activities outlined in items 1, 2.a., 4
through 8 and 10 and 11 of the Scope of Work. The Work Plan
shall include, but is not necessarily limited to, the following:
A. The names and qualifications of personnel to be
involved in any phases of the work. All work performed pursuant
to this Order shall be under the direction and supervision of a
qualified professional engineer, certified geologist or other
qualified professional with expertise in hazardous waste site
investigations and the development, design and execution of
response actions. Prior to the initiation of any work at the
site, Respondents shall notify EPA of the identity and qualifica
tions of such engineer, geologist, or other professional and any
contractors and subcontractors engaged by Respondents to perform
the work. Contractors so engaged shall be subject to EPA approv
al, and no work will begin at the site until such approval has
been given.
B. A detailed description of the work to be performed in
accordance with items l, 2.a., 4 through 8, and 10 and 11 of
Exhibit A, Scope of Work, which is hereby fully incorporated into
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this Order. Activities described in the Work Plan should include
but should not be limited to: sampling methods, chain of custody
procedures, and sample analysis; quality control and quality
assurance procedures, to be carried out in accordance with EPA
protocols; health and safety plans for the protection of workers,
visitors to the facility and the general public; and procedures
for the disposition of any soil, debris, pesticide product or
other waste materials generated by or removed in the course of
site investigation activities.
C. The Work Plan shall set forth a timetable for
implementation and completion of the work.
32. The Work Plan shall be subject to EPA review and ap
proval in accordance with Paragraph 41 of this Order. Upon final
EPA approval, the Work Plan shall be fully incorporated into this
Order.
IMPLEMENTATION OF THE WORK PLAN; SITE CHARACTERIZATION REPORT
33. Within fourteen (14) days of receipt of EPA approval of
the Work Plan, Respondents shall begin implementation of the Work
Plan in accordance with the procedures set forth therein and with\
the Scope of Work.
34. Within thirty (30) days of completion of activities
conducted pursuant to the Work Plan, Respondents shall submit a
Site Characterization Report to EPA for review and approval in
accordance with Paragraph 41 below (Review of Deliverables). The
Site Characterization Report shall describe all site investiga
13
tion activities and shall summarize all information collected
during implementation of the Work Plan.
SOIL/CONCRETE REMOVAL WORK PLAN
35. If EPA determines, based on the analytical results of
samples from the Site, that contaminant levels in the soil are
above the action levels set forth in the Scope of Work, Respond
ents shall submit a Soil/Concrete Removal Work Plan within forty-
five (45) days of EPA approval of the Site Characterization
Report. The Soil/Concrete Removal Work Plan shall address the
activities set forth in item numbers 2.b., 3 and 4 in the Scope
of Work and shall be subject to EPA review and approval as set
forth in Paragraph 41 below (Review of Deliverables). The
Soil/Concrete Removal Work Plan shall contain a description of
quality control and quality assurance procedures to be carried
out in accordance with EPA protocols and shall set forth the
procedures to be used to transport all hazardous substances
removed from, treated at, or generated by clean-up activities at
the site to an EPA-approved treatment, storage, or disposal
facility in compliance with all applicable state, local and
federal laws and regulations, including specifically the require
ments of 40 C.F.R. Part 264, Subpart E. Prior to removal of the
materials generated during the site cleanup, the facility receiv
ing said materials shall be verified to be in compliance with
Section 3004 and 3005 of the Solid Waste Disposal Act and alli
applicable state requirements, i
\i
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IMPLEMENTATION OF THE SOIL/CONCRETE REMOVAL WORK PLAN
36. Implementation of the Soil/Concrete Removal Work Plan
shall begin within thirty (30) days of final EPA approval.
Implementation of the Soil/Concrete Removal Work Plan shall
achieve the clean-up levels developed by EPA pursuant to the
Scope of Work and shall achieve all performance standards or any
other requirement set forth in the approved Soil/Concrete Removal
Work Plan and the Scope of Work. Failure to completely perform
all requirements set forth in the Scope of Work shall .be deemed a
violation of the terms of this Order and shall be subject to the
provisions of Paragraphs 52 — 56 of this Order (Penalties for
Noncompliance).
37. All work completed pursuant to the Work Plan or the
Soil/Concrete Removal Work Plan shall be performed under the
supervision of the On-Scene Coordinator (OSC), Remedial Project
Manager (RPM), or their designee. If, at any time, the OSC
and/or RPM determine that the work is not being performed in
accordance with EPA guidelines and standards or in accordance
with the terms of this Order, the OSC and/or RPM shall have the
authority to require Respondents to perform the work in accord
ance with their instructions to avoid or mitigate endangerment to
the public health, welfare, and/or environment which they believe
will occur, to order work stoppage, or to cause EPA or other
parties to undertake any of the response actions specified in
this Order. If EPA undertakes or causes to be undertaken the
15
response actions specified in this Order, such activity shall not
relieve Respondents of liability for the costs incurred by the
Government in undertaking such actions or liability for payment
of civil penalties.
38. Respondents shall complete all activities included in
the Work Plan and the Soil/Concrete Removal Work Plan in accord
ance with the schedules contained in each EPA-approved Work Plan.
39. Additional time shall be provided to complete the
foregoing activities in the event of a delay beyond thirty (30)
days in EPA's review of any deliverable submitted pursuant to
this Order.
ENGINEERING EVALUATION REPORT
40. Within twenty-two (22) weeks of the effective date of
this Order, Respondents shall submit an Engineering Evaluation
Report (EER) analyzing removal alternatives for addressing the
releases within the abandoned production and storage areas at the
site. The EER shall be performed in accordance with item num
bered 9 in the attached Scope of Work, and in accordance with all
applicable provisions of CERCLA, the NCP and all applicable EPA
policy or guidance documents. The EER shall be submitted to
EPA's Remedial Project Manager at the address given in Paragraph
42 of this Order.
A. The EER shall be prepared under the direction and
supervision of a qualified professional engineer, certified
geologist or other qualified professional with expertise in
16
hazardous waste site investigations and the development, design
and execution of response actions. Within thirty (30) days of
the effective date of this Order, Respondents shall notify EPA of
the identity and qualifications of such engineer, geologist, or
other professional and any contractors and subcontractors engaged
by Respondents to prepare the EER. Qualified professionals and
contractors so engaged shall be subject to EPA approval in ac
cordance with the provisions of Paragraph 41 of this Order.
REVIEW OF DELIVERABLES
41. All deliverables required to be submitted pursuant to
this Order shall be subject to EPA review and approval. Upon
receipt of a deliverable, EPA, after reasonable opportunity for
review, shall: approve, in whole or in part, the submission;
disapprove, in whole or in part, the submission, notifying Re
spondents of deficiencies; direct that the Respondents modify the
submission; approve the submission upon specified conditions;
modify the submission to cure the deficiencies; or any combina
tion of the above.
A. In the event of approval, approval upon conditions, or
modification by EPA, Respondents shall proceed to take any action
required by the Work Plan or the Soil Removal Work Plan as ap
proved or modified by EPA subject only to their right to invoke
the Dispute Resolution procedures set forth in Paragraph 57,
(Dispute Resolution) with respect to the modifications or condi
tions made by EPA.
B. Upon receipt of a notice of disapproval or a notice
17
requiring a modification, Respondents shall, within fourteen (14)
days or such other time as specified by EPA in such notice,
correct the deficiencies and resubmit the plan, report, or other
item for approval. Notwithstanding the notice of disapproval,
Respondents shall proceed, at the direction of EPA, to take any
action required by any non-deficient portion of the submission.
C. In the event that a resubmitted plan, report or other
item or portion thereof is disapproved by EPA, EPA may again
require Respondents to correct the deficiencies in accordance
with the preceding Paragraphs. EPA also retains the right to
amend or develop the plan, report or other item. Subject only to
their right to invoke procedures set forth in Paragraph 57 of
this Order (Dispute Resolution), Respondents shall implement any
such plan, report, or item as amended or developed by EPA.
D. If, upon the first resubmission or upon any subsequent
resubmission, the plan, report, or item is disapproved by EPA,
Respondents shall be deemed to be in violation of the provision
of this Order requiring Respondents to submit such plan, report,
or item unless Respondents invoke the dispute resolution proce
dures set forth in Paragraph 57 (Dispute Resolution) and prevail
on the dispute. The provisions of Paragraph 57 (Dispute Resolu
tion) and Paragraphs 52 — 56 (Penalties for Noncompliance) shall
govern the implementation of the Work and accrual and payment of
any stipulated penalties during Dispute Resolution. Implementa
tion of any portions of the submissions which are not deficient
shall not relieve Respondents of any liability for stipulated
18
penalties under Paragraphs 52 — 56 (Penalties for Noncompli-
ance).
E. All plans, reports, and other items required to be
submitted to EPA under this Order shall, upon approval by EPA, be
deemed to be incorporated into and an enforceable part of this
Order. In the event EPA approves a portion of a plan, report, or
other item required to be submitted to EPA under this Order, the
approved portion shall be deemed to be incorporated in and an
enforceable part of this Order.
DESIGNATED PROJECT COORDINATORS
42. Documents, including reports, approvals, disapprovals,
and other correspondence which must be submitted under this
Order, shall be sent by certified mail, return receipt requested,
to the following addressees or to any other addressees which the
Respondents and EPA designate in writing:
A. Documents to be submitted to EPA should be sent to:
Remedial Project Manager U.S. EPA Region VII 726 Minnesota Avenue Kansas City, KS 66101
B. Documents to be submitted to the Respondents should be sent to:
Peter M. Gillon, Esq.Weil, Gotshal & Manges 1615 L Street, N.W.Washington, DC 20036
43. On or before the effective date of this Order, EPA and
19
Respondents shall designate their own Project Coordinator. Each
Project Coordinator shall be responsible for overseeing the
implementation of this Order. To the maximum extent possible,
communications between the Respondents and EPA shall be directed
to the Project Coordinator by mail, with copies to such other
persons as EPA and Respondents may designate.
REIMBURSEMENT OF COSTS
44. Respondents shall reimburse EPA for all costs incurred
by EPA in the oversight of the Site activities required pursuant
to the Scope of Work, including but not limited to the cost of
analysis of a reasonable number of split samples, within thirty
(30) days of receipt by Respondents of a written statement of
such costs. Respondents shall make payment by cashier's check or
by certified check for the amount of said costs. The check shall
be made payable to the Hazardous Substance and Response Trust
Fund and shall be remitted to:
U.S. Environmental Protection Agency Superfund Accounting
ATTN: Superfund Collection Office Post Office Box 371003M Pittsburgh, PA 15251
RECORD PRESERVATION AND AVAILABILITY
45. Respondents shall preserve all records relating to
response actions at the facility for a minimum of seven (7) years
after termination of this Order unless otherwise instructed by!I
EPA. Such records include sampling, analyses, and chain-of-I1\
\
20
custody records, manifests, trucking logs, receipts, reports,
records of destination of the hazardous substances, correspond
ence, and other documents relating to response actions at the
site.
46. Upon request by EPA, Respondents shall promptly make
available all records and information within their care, custody,
and control which includes that of Respondents' contractor
relating to response actions at the site.
SITE ACCESS
47. As to such portions of the site as they" control, Re
spondent owners of the site shall provide site access to EPA,
state and local government authorities and their authorized
representatives to enter and freely move about at the site and in
all other areas where response actions pursuant to this Order are
implemented for the purpose of inspecting records, reviewing the
progress in carrying out the terms of this Order, conducting such
sampling and tests as EPA deems necessary, and conducting any
response actions deemed necessary by EPA. If any portion of the
site or any off-site areas to which access is needed to carry out
the terms of this Order is owned, in whole or in part, by parties
other than Respondents, Respondents shall obtain, or use their
best efforts to obtain, site access agreements from the present
owner(s) within thirty (30) days of the effective date of this
Order. Such agreements shall provide access for EPA, its con
tractors and oversight officials, the state and its contractors,
and the Respondents or Respondents' authorized representatives,
21
and such agreements shall specify that Respondents are not EPA's
representative with respect to liability associated with site
activities. Copies of such agreements shall be provided to EPA
prior to Respondents' initiation of field activities on property
not owned by Respondents. For the purposes of carrying out the
requirements of this paragraph, "best efforts" shall include the
payment of reasonable compensation to the current owner of any
affected property. If access agreements are not obtained within
the time frame referenced above, Respondents shall immediately
notify EPA of its failure to obtain access, and EPA may obtain
access for the Respondents or perform any necessary tasks or
activities using EPA contractors. If EPA performs any such tasks
or activities, Respondents shall reimburse EPA for all costs
incurred in performing such tasks or activities.
48. EPA shall have the right to monitor and direct the re
sponse actions being performed by Respondents pursuant to the
iauthority granted to EPA by 40 C.F.R. Part 300 et sea.. including
but not limited to:
A. determining whether further response actions
relating to this site are necessary and requiring Respondents to
carry out any such further actions, pursuant to its authority
under Section 106 of CERCLA, 42 U.S.C. § 9606, Section 7003 of
RCRA, 42 U.S.C. § 6973, and other applicable statutes;
B. requiring Respondents to cease performance of
response actions, any portion thereof or any other activities at
RESERVATION OF RIGHTS
22
the site which, in the opinion of EPA, may present or contribute
to an endangerment to public health, welfare, or the environment
or cause the release or threat of release of hazardous sub
stances, pollutants or contaminants, from the site. In the event
that EPA requires the cessation of activities at the site, EPA
shall then have the authority to require that Respondents perform
response activities in accordance with EPA's instructions, cor
rect any work deemed by EPA to have been performed incorrectly,
or to proceed with response activities at the expense of the U.S.
government and proceed under Section 107 of CERCLA to collect the
costs incurred from Respondents.
49. Nothing contained in this Order shall be construed to
prevent EPA from seeking legal or equitable relief to enforce the
terms of this Order or from taking other actions it deems appro
priate or necessary to protect public health or welfare or the
environment. Because the work required by this Order addresses
only a portion of the response activities EPA believes are neces
sary at the Site, EPA specifically reserves the right to require
any non-settling parties and/or Respondents to carry out any
further response actions pursuant to its authority under Section
106 of CERCLA, 42 U.S.C. § 9606, or to perform such further
response actions and to seek recovery of any costs so incurred as
set forth in Paragraph 50 below.
50. EPA reserves the right to bring any action against
Respondents pursuant to Section 107 of CERCLA for recovery of any
unrecovered past and future costs associated with response
23
activities at the site, or any action under any other legal
authority including, but not limited to, actions for injunctive
relief, penalties, and punitive damages pursuant to CERCLA.
51. Following satisfaction of the requirements of this
Order as set forth in Paragraph 68 herein, Respondents shall have
resolved their liability to EPA for the work performed by Re
spondents pursuant to this Order. Respondents are not released
from any liability they may have for any response actions taken
beyond the scope of this Order relating to any response actions
taken by Respondents which are not specifically set forth in this
Order, the Scope of Work, or any EPA-approved plans. Respondents
are not released from any liability they may have for any future
response actions at the Site which may be taken or deemed neces
sary by EPA in the future.
PENALTIES FOR NONCOMPLIANCE
52. If Respondents fail to comply with any requirement ap
plicable to them in Paragraphs 31, 33, 34, 35, 36, 39, 40, 44
and/or 47 of this Order or to perform all required work by the
deadlines or milestones set forth in any Work Plan, Respondents
shall pay to the United States stipulated penalties in the fol
lowing amounts for each day of each and every violation of said
requirements:
Period of Delay Penalty Per Violation Per Day
1st through 14th day $ 750.00each subsequent day 1,500.00
24
53. Stipulated penalties shall begin to accrue on the day
that performance is due or noncompliance occurs, and shall con
tinue to accrue until the noncompliance is corrected. Separate
penalties shall accrue for each separate violation of this Order
provided, however, that each violation arises from the same act
or omission by Respondents. Unless the provisions of Paragraph
57 (Dispute Resolution) are invoked and penalties are waived as
set forth therein, all penalties payable to EPA under this provi
sion shall be paid within thirty (30) days of receipt by Respond
ents of notification of noncompliance. Interest shall begin to
accrue on the unpaid balance at the end of the thirty-day period
at the rate established by the Department of the Treasury under
31 U.S.C. § 3717.
54. Payments of stipulated penalties shall be paid by
certified check made payable to "EPA Hazardous Substances Super
fund" and shall be mailed to the address listed in Paragraph 44
(Reimbursement of Costs) above.
55. Stipulated penalties as set forth above shall be in
addition to any other remedies, sanctions, or penalties which may
be available to the United States by reason of Respondents'
failure to comply with requirements of this Order.
56. Respondents are hereby advised that:
A. Pursuant to Section 106(b) of CERCLA, 42 U.S.C.
§ 9606(b), any person who willfully violates or fails or refuses
to comply with this Order may be fined not more than $25,000 per
25
day for each day in which such violation occurs or failure to
comply continues; and
B. Pursuant to Section 107(c)(3) of CERCLA, 42 U.S.C.
§ 9607(c)(3), any person who is liable for a release or threat of
release of a hazardous substance and who, without sufficient
cause, fails to perform the removal or remedial actions specified
in an Order issued pursuant to Section 106 of CERCLA may be
liable to the United States for punitive damages in an amount at1
least equal to, and not more than three times, the amount of any
costs incurred by the government as a result of such failure to
take the required actions.
DISPUTE RESOLUTION
57. If Respondents disagree, in whole or in part, with any
EPA disapproval or other decision or directive made by EPA pursu
ant to this Order, Respondents shall notify EPA verbally within
seventy-two (72) hours of the event giving rise to the dispute
that a dispute exists. Such verbal notification shall be fol
lowed within seventy-two (72) hours by notification in writing of
their objections and the basis therefor. EPA and Respondents
shall then have an additional fourteen (14) calendar days from
EPA's receipt of Respondents' objections to attempt to resolve
the dispute. If agreement is reached, the resolution shall be
reduced to writing, signed by Representatives of each party and
incorporated into this Order. If the parties are unable to reach
agreement within the fourteen (14) day period, each party shall,
26
within fourteen (14) days, submit a written statement of position
regarding the dispute to the Regional Administrator, EPA Region
VII, whose decision shall be final and binding upon both parties.
Such decision shall be incorporated into and made an enforceable
part of this Order. Stipulated penalties as set forth in Para
graphs 52 — 56 of this Order shall accrue during dispute resolu
tion but shall be waived if Respondents prevail on the disputed
matter.
OTHER CLAIMS
58. Nothing in this Order shall constitute or be construed
as a release by EPA of any claim, cause of action, or demand in
law or equity against any party not a signatory to this document
for any liability relating to the site arising out of the genera
tion, storage, treatment, handling, transportation, release, or
disposal of any hazardous substances, pollutants, or contami
nants .
59. Nothing in this Order shall constitute or be construed
as a release by Respondents of any claim, cause of action, or
demand in law or equity against any party for any liability
relating to this site arising out of the generation, storage,
treatment, handling, transportation, release, or disposal of any
hazardous substances, pollutants or contaminants.
INDEMNIFICATION
60. The United States government shall not be liable for
any injuries or damages to persons or property resulting from
27
acts or omissions of Respondents or Respondents' employees,
agents, or contractors in carrying out activities pursuant to
this Order, nor shall the United States government be held out as
a party to any contract entered into by Respondents, their em
ployees, agents, or contractors in carrying out activities pursu
ant to this Order.
FORCE MAJEURE
61. Respondents shall perform all tasks set forth in this
Order within the time limits set forth herein, unless performance
is delayed by events which constitute a "Force Majeure." "Force
Majeure" is defined for the purposes of this Order as an event
arising from causes entirely beyond the control of Respondents
and of any entity controlled by Respondents, including their
contractors and subcontractors, which delays or prevents the
performance of any obligation under this Order. "Force Majeure"
does not include unanticipated or increased costs, changed finan
cial circumstances, change in ownership of the facility, non
attainment of the goals and standards set forth herein or normal
precipitation events.
62. When circumstances occur which the Respondents believe
constitute a Force Majeure event, Respondents shall notify the
RPM orally within forty-eight (48) hours after Respondents become
aware of the occurrence of such event. If the RPM is unavail
able, Respondents shall notify the Director of the Waste Manage
ment Division, Region VII. Within eight (8) working days after
notice is given of the occurrence of such event, Respondents
28
shall provide EPA with a written description of such event,
including the cause(s) of any actual delay or noncompliance, the
anticipated duration of the delay, the measures taken by Respond
ents to prevent or minimize the delay or correct the noncompli
ance, and the timetable for implementation of such measures.
Respondents shall adopt all reasonable measures to prevent or
mitigate any anticipated delay. Failure to give timely oral and
written notice to EPA in accordance with this Paragraph shall
constitute a waiver of any claim of Force Majeure with respect to
the circumstances in question.
63. If EPA agrees that a delay is or was caused by a Force
Majeure event, the schedule for the activities delayed by the
event shall be extended for a period equal to the delay resulting
from such an event. Whether an event is a Force Majeure event is
subject to the Dispute Resolution procedures set forth in Para
graph 57 herein.
64. In proceedings on any dispute regarding a delay in per
formance or other noncompliance, Respondents shall have the
burden of proving (1) that the delay or noncompliance is or was
caused by a Force Majeure event; and (2) that the amount of
additional time requested is necessary to compensate for that
event.
EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
65. This Order shall become effective upon the date on
which it is signed by the Regional Administrator or his delega
tee.
29
66. This Order may be amended by agreement of the parties
and by the Regional Administrator or his delegatee. Such amend
ments shall be in writing and shall have as the effective date
the date on which Respondents receive a copy of the amendment
signed by the Regional Administrator or his delegatee. Parties
not signatories to the original agreement may be added by the
amendment procedure set forth in this Paragraph. Any party added
by amendment is fully bound by the terms of this Order and is
jointly and severally responsible, with all other Respondents,
for carrying out the terms of this Order.
TERMINATION OF ORDER
67. The provisions of this Order shall remain in full force
and effect until completion of all response actions required by
this Order, with the exception of the record retention require
ments of Paragraphs 45 and 46, the reimbursement of costs pursu
ant to Paragraph 44, or the payment of penalties pursuant to
Paragraphs 52 — 56 of this Order, the requirements of which
shall survive the completion of the response actions required by
this Order.
30
IN WITNESS WHEREOF, the parties have affixed their signa
tures below:
UI3l 91
Datle
For theUnited States Environmental
Protection Agency Region VII
Belinda Holmes Assistant Regional Counsel
I hereby consent to be bound by the terms of the foregoing Administrative Order on Consent and verify that I am authorized to bind the party named below.
I hereby consent to be bound by the terms of istrative Order on Consent and verify that I bind the party named below.
the foregoing Admin- am authorized to
William A. Bloskas
r z-!\ /i£ 5\*Carms i the
Fhe person
aZ'rS. 1 nO . uereov CollSeoreaving Admin 1 s t vat.ive whose signature appears
■.‘redei1 w
ine is authorized to sign this document on* • 1:. ihosKas <.■>. Associates. Inc.
be <:>•:;nn•_ .nverifies benaii .■
Vi . ri .
&L£&-rvf & ^1/ J
Di.OSk.cl5 «!y As 500 icitOS
l
Farnam, Inc. hereby consents to be bound by the terms of theAdministrative Order on Consent. The person whose
signature appears below verifies that he/she is authorized tosign this document on Farnam's behalf.
Dated-UcD,
Kalo, Inc. hereby consents to be bound by the terms of the foregoing Administrative Order on Consent. The person whose signature appears below verifies that he/she is authorized to sign this document on Kalo's behalf.
Loveland Industries, Inc. hereby consents to be bound by theterms of the foregoing Administrative Order on Consent. Theperson whose signature appears below verifies that he/she isauthorized to sign this document on Loveland Industries' behalf.
r/? ?/
Date ustries^ Inc.
^^^^kslt Chemical Company hereby consents to be bound by the terms of the foregoing Administrative Order on Consent. The person whose signature appears below verifies that he/she is authorized to sign this document on behalf of Cornbelt Chemical Company.
Terra International, Inc. hereby consents to be bound by the terms of the foregoing Administrative Order on Consent. The person whose signature appears below verifies that he/she is authorized to sign this document on behalf of Terra Internation-
f Inc •
/79J
Mark A. Kalafut Vice President
and General Counsel For Terra International, Inc,
Date
tiECu
JUN 1 2 ]or.:
epa cnsl/cercl/REGION VII
Durvet, Inc. hereby consents to be bound by the terms of the foregoing Administrative Order on Consent. The person whose signature appears below verifies that he/she is authorized to sign this document on Durvet's behalf.
v_jt/A/er (j> 199/
--------- 1------For Durvet Inc.Date
Exhibit A
SCOPE OF WORK
Specific tasks required, under this order, shall include:
1. The removal and reclamation of all drums stored in the wooden sheds located on the eastern portion of the Interchem site. Materials that have been spilled in the sheds shall be collected, transferred to secure containers, and relocated to the main Interchem building. A thorough vacuuming and visual inspection of the sheds will be required to assure spilled materials have been removed.
2a. Contamination of soils (exterior and under sheds) shall be evaluated. Selection of the areas for evaluation shall be based on visual inspection in the field, historical use information, previous sampling data and engineering judgment. A sampling plan, subject to the U.S. Environmental Protection Agency (EPA) approval, will be developed relevant to each area to ensure representative data is obtained. Analysis of soil samples shall be performed for the total pesticides listed in the EPA Contract Lab Program statement of work (the Target Compound List) plus malathion, coumaphos, Captan, dichlorvos, diazinon, dimethoate, carbaryl, and the ethylbisdithiocarbamic salts, Zineb and Maneb. In addition, a limited number of soil samples shall be analyzed for PCBs, as well as volatiles, semi-volatiles, and the inorganic target analytes listed in the EPA CLP statement of work (the Target Compound Lists) plus cyclohexanone. Analytical methods shall be subject to EPA approval.
2b. The results of analyses described in 2a above will be presented in the Site Characterization Report (SCR) and will be used to develop a list of Contaminants of Concern. The SCR shall be subject to EPA review and approval. Contaminants of Concern will be chosen from the pesticides analyzed per 2a above and the list of compounds in Table 1 below. Selection of Contaminants of Concern will be based on prevalence (i.e., frequency of detection), maximum concentrations detected, environmental mobility, environmental persistence, and toxicity and/or carcinogenicity of the individual contaminants detected. Action levels for Contaminants of Concern which are pesticide active ingredients will be 10 parts per million total pesticides, unless alternative health-based action levels are approved by EPA. In addition, action levels for the Contaminants of Concern listed in Table 1 are subject to EPA approval.
TABLE 1
VOLATILES SEMI-VOLATILES INORGANICS
Chloromethane Chloroethane Methylene Chloride Acetone1.1- Dichloroethene1.1- Dichloroethane1.2- Dichloroethene (total)Chloroform1.2- Dichloroethane1.1.1- Trichloroethane Carbon Tetrachloride Trichloroethene1.1.2- Trichloroethane Benzene 2- Hexanone Tetrachloroethene Toluene1.1.2.2- Tetrachloroethane Chlorobenzene Ethyl Benzene Xylenes (total)Cyclohexanone
A Soil/Concrete Removal Work Plan, subject to EPA approval, shall be prepared in the event that representative concentrations of total pesticides exceed the approved action levels for soils or the concrete pad (see item 4), or representative concentrations of the compounds listed in Table 1 exceed the approved action levels for soils. The effectiveness of any removal action shall be verified through confirmatory sampling and analyses. Removal action shall continue until representative concentrations of the Contaminants of Concern are below action levels. After these EPA-approved action levels have been achieved, clean soil will be placed in the excavated areas, compacted and graded.
Phenol2-Chlorophenol1.3- Dichlorobenzene1.4- Dichlorobenzene 1,2-Dichlorobenzene Isophorone2.4- Dichlorophenol Naphthalene Hexachlorobenzene Pentachlorophenol Fluoranthene
ArsenicCadmiumCopperManganeseMercurySodiumZinc
3. Prior to the removal of soils and/or the concrete pad an evaluation as to whether air monitoring and/or special engineering controls are necessary shall be included in the Soil/Concrete Removal Plan. This evaluation will be based on the level and nature of the contaminants found in the soils and/or concrete and the extent of proposed removal actions. Health- based action levels for potential inhalation will be developed using the same procedure indicated for soils in paragraph 2b.The health-based action levels and the implementation of air monitoring and/or engineering controls are subject to EPA approval and will be based on the protection of human health.
Analytical results of air samples in excess of the health-based action levels will require submittal of a plan, subject to EPA approval, that addresses the modification of on-site activities to mitigate the release of the toxic material and verifies these actions are effective. Analysis shall be conducted under an EPA approved QA/QC plan.
4. The exterior concrete pad, where the 1983 toxaphene spill occurred, shall be cleaned or treated to a level equal to or less than 60 mg/kg total pesticides in the top 1/4 inch of the final surface. The target compound list and analytical methods for total pesticides shall be consistent with those listed in the U.S. EPA CLP statement oi; work (the Target Compound List). A sampling approach, subject to EPA approval, will be developed relevant to the concrete pad to ensure representative data is obtained. The effectiveness of any removal action shall be verified through confirmatory sampling and analyses. If 60 mg/kg is not -achievable the contaminated portions of the pad must be disposed as a RCRA waste at an acceptable permitted facility.
5. A groundwater study plan shall be developed and submitted to EPA for approval to determine whether released materials from the site have caused contamination of the groundwater above health based action levels. The groundwater study will be implemented in accordance with the approved plan.
6. A comprehensive inventory of all containers of pesticide formulation raw materials, products, and other wastes will be undertaken and copies of the inventory will be submitted to EPA. The inventory shall include development of container records for all tanks, drums, bags, bottles, and other containers on site. The location of each container shall be photographically recorded and the photograph affixed to the record. Where containers appear ruptured, leaking, or in an unstable position, measures will be taken to stabilize those containers by overpacking, transferring to a new container, or relocating to a more secure location.
7. The Interchem pesticide formulation building and the wooden sheds shall be secured and access shall be controlled. Plywood and, if necessary, plastic covers will be placed over structure openings. New locks will be installed to limit access to those authorized by the Interchem PRP Group and/or EPA.
8. Offsite soils located on Lot 1, Block 3 shall be sampled and removal action taken that is necessary to meet the soil cleanup criteria cited in jitems 2a and 2b above. Additional off-site soil sampling and removal action, consistent with items 2a and 2b above, may be necessary as determined by EPA based upon the evaluation of soil sample analytical results and the
\I
likelihood of off-site migration of contaminants.
9. An Engineering Evaluation will be conducted to address the cleanup of the pesticide formulation building, the wooden sheds, and the above ground storage tanks. This plan shall review alternative site characterization and cleanup plans for the building interior, the wooden sheds, and the above ground storage tanks. The evaluation shall address any pre-cleanup requirements, sampling methodologies, cleanup methodologies, cleanup action levels and post-cleanup confirmation sampling and/or monitoring. The evaluation will review the site history, the nature of the contamination, potential hazards from this contamination to the public, and the future uses of the site. Various corrective measure technologies will be evaluated as to their effectiveness, implementability, and cost. Recommendations will be included for any additional characterization activities and corrective measures. The evaluation will also address removal and reclamation and/or disposal of all hazardous materials. The Engineering Evaluation Report shall be subject to EPA approval.
10. The above ground storage tanks located south of the wooden sheds on the eastern portion of the Interchem site shall be inspected and sampled. Free liquids and product shall be removed and tanks shall be secured at all openings to prevent unauthorized use or accidental exposure.
11. A plan to investigate whether subsurface drums and debris are present at the site shall be developed and submitted to EPA for approval. Upon EPA approval, the investigation shall be carried out pursuant to the approved plan.
The Respondents shall prepare comprehensive workplans that address all phases of this scope of work, as well as comprehensive sampling, QA/QC, and site safety plans for review by EPA prior to the initiation of any on site work. The plans must address in detail the management, treatment and proper disposal of additional liquid and/or solid wastes which may be generated during site actions. EPA reserves the right to oversee and require modifications to the work described in this document at any time during or after completion of the on-site activities. EPA also reserves the right to request splits/duplicates of samples collected by the Respondents or their agents or to collect additional samples of any media or process related to the cleanup effort. The Respondents may request splits/duplicates of any samples collected by. EPA as part of this action. All materials resulting from onsite actions which are scheduled for offsite disposal as hazardous wastes must be transported and disposed in accordance with appropriate state and federal hazardous waste transportation and disposal regulations. Land
Disposal restrictions will apply in accordance with 40CFR Part 268, as amended. The Resource Conservation and Recovery Act (RCRA) permitted treatment, storage and/or disposal (TSD) facility selected for disposal must provide documentation of compliance with all permit conditions (state/federal regulatory requirements) relating to the disposal of wastes from the site not more than 90 days prior to the disposal action. Respondents shall provide a copy of the documentation to EPA.
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