Attachment I -- Corrective Action Plan
_________________________________________________________________________________
United States Environmental Protection Agency, Region 6
In the Matter Of: |
Administrative Order on Consent |
Camp Stanley Storage Activity Boerne, Texas EPA ID No: TX2210020739 Respondent |
U.S. EPA DOCKET NO. RCRA-VI 002(h)99-H FY99 Proceeding Under § 3008(h) of the Resource Conservation and Recovery Act, as Amended, 42 U.S.C. § 6928(h) |
I. Jurisdiction
This Administrative Order on Consent (Order) is issued pursuant to the authority vested in the Administrator of the United States Environmental Protection Agency (EPA) by Section 3008(h) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, (RCRA), and further amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6928(h). The authority to issue this Administrative Order has been delegated to the Regional Administrator by EPA Delegation Nos. 8-31 and 8-32, dated April 16, 1985, and further delegated to the Director of the Compliance Assurance & Enforcement Division, Region 6 ("Director") by EPA Delegation Nos. R6-8-31and R6-8-32, dated July 27, 1995.
1. This Order is issued to the Camp Stanley Storage Activity (CSSA) ("Respondent"), the owner and/or operator of Camp Stanley Storage Activity ("CSSA"), Boerne, Texas ("Facility"), and is consistent with Section 6001 of RCRA, 42 U.S.C. § 6961. Respondent admits that EPA has jurisdiction to issue this Order and to enforce its terms. Further, Respondent consents to and agrees not to contest EPA's jurisdiction to: compel compliance with this Order in any subsequent enforcement proceedings, either administrative or judicial; require Respondent's full or interim compliance with the terms of this Order; or impose sanctions for noncompliance with this Order. Finally, Respondent agrees not to contest the validity of this Order, and waives any defense concerning the validity of this Order, or any particular provision contained herein.
2. Congress has specifically waived any defense of sovereign immunity that might otherwise be available to the Respondent regarding this Order. Pursuant to Section 6001 of RCRA, 42 U.S.C. § 6961, Respondent is subject to, and shall comply with all Federal, State, interstate, and local requirements, both substantive and procedural, respecting the control and abatement of solid waste or hazardous waste disposal and management in the same manner and to the same extent, as any person is subject to such requirements. Such Federal, State, interstate, and local substantive and procedural requirements include, but are not limited to, all administrative orders and all civil and administrative penalties and fines.
II. Parties Bound
1. This Order is issued to the CSSA, the owner and/or operator of the Camp Stanley Storage Activity, Boerne, Texas.
2. No change in ownership or status relating to the Facility will in any way alter the status or responsibility of the Respondent under this Order. Any conveyance of title, easement, or other interest in the Respondent's Facility or a portion at the Respondent's Facility shall not affect Respondent's obligations under this Order. Respondent shall be responsible for and liable for any failure to carry out all activities required of the Respondent by the express terms and conditions of this Order, irrespective of its use of employees, agents, or consultants to perform any such tasks.
3. This Order shall apply to and bind Respondent, its officers, employees, agents, receivers, successors, assigns, and all other persons, including, but not limited to, contractors, and consultants acting under or on behalf of Respondent in connection with the implementation of this Order.
4. Each undersigned representative of the parties to this Order certifies that he/she is fully authorized to enter into the terms and conditions of the Order, and to legally bind the party he/she represents to the Order.
5. Until this Order is terminated, Respondent shall provide, or cause to be provided, a copy of this Order to all contractors, subcontractors, laboratories, and consultants retained to conduct or monitor any portion of the work performed pursuant to this Order within 30 (thirty) calendar days of the effective date of this Order or date of such retention, and shall condition all such contracts on compliance with the terms of this Order.
6. Any documents transferring ownership and/or operations of the Facility from Respondent to a successor-in-interest shall include written notice of this Order. Respondent shall, no less than thirty (30) days prior to transfer of ownership or operation of the Facility, provide to EPA written notice of said transfer of ownership and/or operation.
7. Respondent agrees to undertake all actions required by the terms and conditions of this Order including the Corrective Action Plan, which consists of the Interim/Stabilization Measures (IM), RCRA Facility Investigation (RFI), Corrective Measures Study (CMS), Corrective Measures Implementation (CMI), and is incorporated by reference in this Order. Respondent explicitly waives its rights to request a hearing on this matter and consents to the issuance of this Order without a hearing pursuant to § 3008(b) of RCRA, 42 U.S.C. § 6928(b), and 40 C.F.R. Part 24, and as an Order on Consent issued pursuant to § 3008(h) of RCRA, 42 U.S.C. § 6928(h).
III. Statement of Purpose
1. In entering into this Order, the mutual objectives of EPA and Respondent are to identify, investigate, and prevent the further spread of releases of hazardous wastes and/or hazardous constituents to the environment at and/or from the facility, and to ensure that corrective action activities pursuant to EPA regulations and relevant guidance documents are designed and implemented to protect human health and the environment.
2. This Order requires the Respondent to: (1) perform Interim/Stabilization Measures (IM) at the Facility to prevent or minimize the further migration of contaminants due to releases of hazardous constituents to the environment, or to mitigate current or potential threats to human health or the environment; (2) perform a RCRA Facility Investigation (RFI) to determine the nature and extent of any release(s) of hazardous waste or hazardous constituents at or from the Facility; (3) perform a Corrective Measure Study (CMS) to identify and evaluate alternatives for corrective action(s) to prevent or mitigate any migration of release(s) of hazardous wastes or hazardous constituents at or from the Facility, and to collect any other information necessary to support the selection of corrective measures at the Facility; and (4) implement the corrective measure or measures (Corrective Measure Implementation (CMI)) selected by EPA for the Facility.
IV. Findings of Fact
1. Respondent is a Federal agency as defined in § 1004(4) of RCRA, 42 U.S.C.§ 6903(4).
2. The Respondent is the owner and/or operator of CSSA. CSSA is in Bexar County in south central Texas. It is located northwest of San Antonio, Texas, and is adjacent to the western border of Camp Bullis Army Base. CSSA has been in existence since 1906 and currently occupies approximately 4,000 acres.
3. Respondent is a generator of hazardous waste and is engaged in the treatment, storage, or disposal of hazardous waste at the Facility and was subject to the interim status requirements of 40 C.F.R. Part 265. Respondent is currently operating as a Small Quantity Generator.
4. Respondent owned and/or operated the Facility as a hazardous waste management facility on or after November 19, 1980, the applicable date which renders facilities subject to the interim status requirements, or the requirement to have a permit under Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924 and 6925.
5. Pursuant to Section 3010(a) of RCRA, 42 U.S.C. § 6930(a), Respondent notified EPA of its hazardous waste activity. In the Notification of Hazardous Waste Activities dated September 18, 1980, Respondent identified itself as a generator, storer, and transporter of the following hazardous waste at the Facility:
Corrosivity (D002) - 40 C.F.R. § 261.22
6. Pursuant to Section 3005(e) of RCRA, 42 U.S.C. § 6925(e), on November 19, 1980, Respondent submitted Part A of its permit application and identified that it treats, stores, or disposes of hazardous wastes by operation of a surface impoundment and tank storage for the following hazardous waste:
(a) |
Hazardous wastes exhibiting the characteristics of reactivity defined at 40 CFR §§ 261.22, (D002); and |
(b) |
Hazardous wastes from non-specific sources defined at 40 CFR § 261.31, (F001). |
7. There are twelve wells at CSSA used for potable drinking water sources, monitoring wells, agricultural water supplies, or a combination of aforementioned uses. Three wells are located in the north pasture (G, H, & I). Five wells are located along the northern boundary of the inner CSSA cantonment area (2, 3, 4, 16, & D). Three wells are located in the southwestern area of CSSA (9, 10, & 11). One well is located southeast of CSSA on Camp Bullis (1). The majority of the CSSA wells are open-hole completion wells.
8. During a routine pesticide screening site visit on August 9, 1991, the Texas Department of Health (TDH) sampled water supply well 16, which is located along the north inner cantonment boundary. Analytical results revealed the sample contained 127 micrograms per liter (ug/L) cis-and trans-1,2-dichloroethane (DCE), 151 ug/L trichloroethylene (TCE), and 137 ug/L tetrachloroethylene (PCE). Subsequent sampling on August 23, 1991 confirmed the earlier results. TDH required that CSSA take the well out of service and notify previous well users on a quarterly basis.
9. The Texas Water Commission, now named the Texas Natural Resources Conservation Commission (TNRCC), collected samples on December 4, 1991, from Well 16 and from two inactive wells (wells D and 4). According to the TNRCC, well 16 was determined once again to be contaminated with TCE and PCE and well D also was contaminated with DCE.
10. In November 1992, CSSA sampled ten wells located within the CSSA perimeter. Wells 2, 3, and 4 were found to be non-detect for DCE and TCE. Well D and well 16 were found to contain concentrations up to 53 Fg/L of volatile organics, which were above drinking water standards. Other inactive wells were not found to contain halogenated compounds.
11. According to Sampling and Analysis Plan for Evaluation of Ground Water contamination at CSSA, dated May 1993, which was prepared for CSSA by Engineering Science, Inc., now named Parsons Engineering Science, Inc., the following potential sources of the hazardous waste constituents found in the contaminated wells are as follows:
(a) |
Oxidation Pond: The oxidation pond was built in approximately 1975. It had a vinyl plastic liner and was used for evaporation of waste liquids from the ordnance related maintenance process. This pond was filled in with dirt in 1985 after solid and liquid residues were reportedly removed. |
(b) |
Burn Areas 1, 2, 3, 4, and 28: Open burning areas for ammunition, incendiary materials, trash, and garbage. Based on current information, it appears that only Burn Area 3 is contributing to the ground water contamination. |
12. The aquifer underlying CSSA is the upper Glen Rose of the upper Trinity Aquifer. The Trinity Group aquifer is the primary source of drinking water in northern Bexar County. A recharge zone to the Edwards Aquifer is located at least 0.5 miles northeast of the facility.
13. The hazardous wastes and hazardous waste constituents identified below include known and suspected carcinogens and mutagens. Carcinogens and mutagens can affect the central nervous system and damage internal organs at low levels. These chemicals, under certain conditions of dose, duration, or extent of exposure, constitute a threat to human health by inhalation, ingestion and/or absorption. The following information was compiled from the Chemical, Physical, and Biological Properties of Compounds Present at Hazardous Waste Sites (September 27, 1985), EPA's Integrated Risk Information System (IRIS), and 40 C.F.R. Part 141:
(a) |
Trichloroethene (TCE) - Trichloroethene has induced hepatocellular carcinomas in mice and was mutagenic when tested using several microbial assay systems. The MCL for Trichloroethene in drinking water is 0.005 mg/l. |
(b) |
1,2-Dichloroethane (1, 2 DCE) - Carcinogenicity classification B2 - probable human carcinogen. 1,2-Dichloroethane is a mutagenic in bacterial test systems. The MCL in drinking water is 0.005 mg/l. |
(c) |
Tetrachloroethene/Perchloroethylene (PCE) - Tetrachloroethene produces liver cancer in mice when administered orally by gavage. Renal toxicities have been reported following inhalation exposure of rats to fairly high concentrations. The MCL in drinking water is 0.005 mg/l. |
V. Conclusions of Law and Determinations
Based on the Findings of Fact set out above, and the administrative record, the Director has determined that:
1. Pursuant to Section 6001 of RCRA, 42 U.S.C. § 6961, each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government having jurisdiction over any solid waste management facility or disposal site, or engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirements for permits or reporting or any provision for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner, and to the same extent, as any person is subject to such requirements.
2. Pursuant to Section 6001 of RCRA, 42 U.S.C. § 6961, Respondent is a federal agency subject to all requirements of RCRA in the same manner and extent as any person is subject to such requirements.
3. Respondent is a "person" within the meaning of Section 1004(15) of RCRA, 42 U.S.C. § 6903(15), and 40 C.F.R. § 260.10.
4. Respondent is the owner and/or operator of an "existing hazardous waste management facility" as defined at 40 C.F.R. § 260.10, located in Bexar County, Texas.
5. Respondent was authorized to operate under interim status pursuant to Section 3005(e) of RCRA, 42 U.S.C. § 6925(e).
6. Certain wastes and constituents found at the Facility are hazardous wastes or hazardous constituents as defined by Sections 1004(5) and 3001 of RCRA, 42 U.S.C. §§ 6903(5) and 6921, 40 C.F.R. Part 261.
7. Respondent released hazardous wastes or hazardous waste constituents, as defined by Section 3001 of RCRA, 42 U.S.C. § 6921, and 40 C.F.R. Part 261, into the environment from the Facility.
8. Respondent is subject to the provisions of Section 3008(h) of RCRA, 42 U.S.C. § 6928(h).
9. Based on the release of hazardous waste or hazardous constituents into the environment from the Facility, the Director has determined that the actions required by this Order are consistent with RCRA, and the actions ordered below are necessary to protect human health and/or the environment.
Based on the foregoing, it is hereby Ordered that Respondent shall perform the following actions in the manner and by the dates specified below:
VI. Work to be Performed
Respondent shall undertake, continue to take, and complete each of the following actions to the satisfaction of EPA, in accordance with the terms, procedures and schedules set forth in the Corrective Action Plan ("CAP"), Attachment I. The CAP is hereby incorporated in this Order by reference as if reproduced in full herein.
1. Interim/Stabilization Measures (IM)
a. Within one hundred twenty (120) days of the effective date of this Order, Respondent shall submit to EPA an Interim Measures Workplan (IM Workplan) for the stabilization of the oxidation pond. EPA will approve, or modify and approve, the IM workplan. The purpose of this IM is to minimize the further release of hazardous waste or hazardous waste constituents to the ground water, and mitigate the current or potential threat to human health and/or the environment. The IM Workplan shall be prepared in accordance with the requirements contained in the CAP and shall identify and evaluate interim measures, which shall be consistent with and integrated into any long term remedy at the Facility. Other specific interim measures that are required by this Order are presented in the CAP.
Upon approval or modification of the IM Workplan by EPA, Respondent shall undertake, or continue to take, the IM in accordanceith the IM Workplan, concurrently with other corrective action activities.
b. In the event Respondent identifies a current or potential threat to human health and/or the environment, the Respondent shall immediately notify EPA orally, and in writing within five (5) days, summarizing the immediacy and magnitude of the potential threat to human health and/or the environment.
If additional information becomes available to EPA after the effective date of this Order, and that information indicates the existence of a current or potential threat to human health and/or the environment, EPA will provide notification to Respondent so that Respondent may initiate interim measures. Within one hundred twenty (120) days of any notification described above, Respondent shall submit an amended Interim Measures Workplan for EPA approval, or modification and approval. The amended IM Workplan will identify Interim Measures that mitigate threats to the environment and are consistent with, and integrated into, any long term remedy at the Facility. The amended IM Workplan shall be prepared in accordance with the requirements contained in the CAP.
Upon approval or modification of the amended IM Workplan by EPA, Respondent shall undertake the Interim Measures in accordance with the amended IM Workplan, and concurrently with other corrective action activities.
c. The IM Workplan(s) shall ensure that the Interim Measures are designed to control or abate threats to human health and/or the environment and/or to prevent or minimize the further spread of contamination while long-term remedies are pursued at the Facility.
d. Within sixty (60) days after data validation for completion of the construction of the IM (except for long term operation, maintenance, and monitoring), the Respondent shall submit a Interim Measures Implementation Report in accordance with the requirements specified in the CAP. EPA will approve, or modify and approve, the IM Implementation Report.
2. RCRA Facility Investigation (RFI)
a. Within ninety (90) days of the effective date of this Order, Respondent shall submit a Description of Current Conditions Report to EPA. EPA will approve, or modify and approve, the Description of Current Conditions Report. The Description of Current Conditions Report shall be prepared in accordance with the requirements set forth in the CAP.
b. Within one hundred twenty (120) days of the effective date of this Order, Respondent shall submit to EPA a RCRA Facility Investigation (RFI) Workplan. The RFI Workplan shall be prepared in accordance with the requirements set forth in the CAP.
c. The RFI Workplan shall be developed in accordance with RCRA, its implementing regulations, and relevant EPA guidance documents referenced in Attachment II, and any other documents determined and identified by EPA to be relevant during the course of this action.
d. The RFI Workplan shall describe in detail the methodology for determining the presence, magnitude, horizontal and vertical extent, direction, and rate of movement of any hazardous wastes or hazardous waste constituents within and beyond the Facility boundary.
e. The RFI Workplan shall conform to the requirements of the CAP and shall document the procedures the Respondent shall use to conduct those investigations necessary to: (1) characterize the potential pathways of contaminant migration; (2) characterize the source(s) of contamination; (3) define the degree and horizontal and vertical extent of contamination; (4) identify actual or potential receptors; and (5) support the development of alternatives from which a corrective measure(s) will be recommended by CSSA and selected by EPA. A specific schedule for implementation of all activities shall be included in the RFI Workplan.
f. In accordance with the provisions of the CAP, the RFI Workplan shall include: (1) a Project Management Plan (Work Plan); (2) a Data Collection Quality Assurance Plan (Field Sampling Plan); (3) a Data Management Plan (Quality Assurance Project Plan); (4) a Health and Safety Plan; and (5) a Community Relations Plan.
g. EPA will approve, or modify and approve, the RFI Workplan. Respondent shall implement the RFI Workplan according to the schedule set forth in the RFI Workplan.
h. Within seven hundred thirty (730) days of the approval of the RFI Workplan and subject to Section XIV of this Order, Respondent shall submit to EPA a RFI Report for review and approval. The RFI Report shall be prepared in accordance with the requirements contained in the CAP.
i. EPA will approve, or modify and approve, the RFI Report.
j. Within sixty (60) days after the submission of the RFI Report, Respondent shall submit a Risk Assessment and Investigative Analysis to EPA.
k. EPA will approve, or modify and approve, the Risk Assessment and Investigative Analysis.
l. During the RCRA Facility Investigation, it may be necessary to revise the Final RFI Workplan to increase or decrease the detail of information collected to accommodate the Facility specific situation. If such revisions are made, the schedule for deliverables affected by these revisions may be adjusted by EPA.
3. Corrective Measures Study (CMS)
a. Within one hundred twenty (120) days after the RFI Report is approved by EPA, Respondent shall submit a CMS Report to EPA. The CMS Report shall be consistent with the requirements in the CAP.
b. EPA will approve, or modify and approve, the CMS Report.
c. During the Corrective Measures Study, it may be necessary to revise the CMS to increase or decrease the detail of information collected to accommodate the Facility specific situation. If such revisions are made, the schedule for deliverables affected by these revisions may be adjusted by EPA.
d. The Corrective Measures Study shall be developed in accordance with RCRA, its implementing regulations, and relevant EPA guidance documents referenced in Attachment II, and any other documents determined and identified by EPA to be relevant during the course of this action.
4. Corrective Measures Implementation (CMI)
a. Unless otherwise specified in this Order, within one hundred twenty (120) days of Respondent's receipt of notification of EPA’s approval of the Respondent’s selection of the corrective measure, or upon written direction from EPA, Respondent shall submit to EPA a Corrective Measures Implementation Program Plan ("CMI Program Plan").
b. Respondent shall develop and submit to EPA draft deliverables as described in a manner consistent with the CMI Scope of Work contained in the CAP. These deliverables are subject to review, comment, and approval by EPA. The required deliverables shall include, but not be limited to: (1) a Program Management Plan; (2) a Community Relations Plan; (3) Design Plans and Specifications; (4) an Operation and Maintenance Plan; (5) a Cost Estimate; (6) a Project Schedule; (7) Construction Quality Assurance Objectives, (8) a Health and Safety Plan; (9) Prefinal Design and Final Design, (10) a Construction Quality Assurance Plan, (11) a Prefinal Inspection Report, (12) a Corrective Measure Implementation Plan, and (13) a Corrective Measure Implementation Report. The Respondent shall submit the above deliverables according to the schedule set forth in the CAP.
c. The Corrective Measures Implementation Workplan shall be developed in accordance with RCRA, its implementing regulations, and relevant EPA guidance documents referenced in Attachment II, and any other documents determined and identified by EPA to be relevant during the course of this action.
d. Unless otherwise specified in this Order, EPA will approve, or modify and approve, the deliverables associated with the CMI.
e. Upon EPA approval or modification and approval of all deliverables described in the CMI Scope of Work contained in the CAP, Respondent shall implement the activities of these deliverables.
f. During the Corrective Measures Implementation, it may be necessary to revise the Final CMS to increase or decrease the detail of information collected to accommodate the Facility specific situation. If such revisions are made, the schedule for deliverables affected by these revisions may be adjusted by EPA.
5. Submissions/Agency Approval/Additional Work
a. Within five (5) days of approval or modification by EPA of any Workplan(s), Respondent shall commence work and implement the tasks required by the Workplan(s), in accordance with the standards, specifications and schedule stated in the Workplan(s) as approved or modified by EPA.
b. Beginning with the third month following the effective date of this Order, Respondent shall provide EPA with the appropriate IM, RFI, and CMS progress reports every quarter, due on the tenth (10th) day of the following month. The CMI monthly and semi-annual progress reports are also due the tenth day of the following month. The progress reports shall conform to requirements in relevant Scopes of Work contained in the CAP.
c. The Respondent shall provide EPA with the results of all sampling and testing performed under this Order in every quarterly progress report as specified in Section VI.5.(b).
d. EPA will review all major reports and workplans (i.e., IM Workplan, Current Conditions Report, IM Report, RFI Workplan, RFI Report, CMS Report, CMI Program Plan, Corrective Measures Design Plan, Final Design Plan, Final Construction Plan, and Corrective Measures Construction Report) or other submittals required under this Order, and notify Respondent in writing of EPA's approval or modification of the deliverables or any part thereof. Upon EPA approval or modification, the submittal shall be deemed incorporated into and part of this Order.
e. Notwithstanding the foregoing, EPA reserves the right to disapprove of, or provide comments on, any deliverable or any part thereof. Within thirty (30) days of receipt of EPA's disapproval or comments on any deliverable, Respondent shall address the deficiencies to EPA’s satisfaction and submit a revised submittal. EPA shall approve or modify the revised submittal. Upon EPA approval or modification, the submittal shall be deemed incorporated into and part of this Order.
f. Any noncompliance with such EPA approved plans, reports, specifications, schedules, and attachments shall be construed as a violation of the terms of this Order, and subject to the penalty provisions of Section XIX. Oral advice or approvals given by EPA representatives will not relieve Respondent of their obligation to obtain any formal, written approvals required by this Order.
g. Four (4) copies of all deliverables shall be hand delivered, or sent by certified mail, return receipt requested, to the EPA Project Manager. An additional one (1) copy shall be sent to TNRCC. Respondent shall also submit to EPA a copy of all report submittals on 3.5 inch computer disk. The text shall be in a format compatible with WordPerfect version 5.1 or later, and data shall be in a format compatible with Lotus 123 version 2.2 or later.
h. The Respondent shall provide EPA with a statement reflecting the percentage of work accomplished thus far within the fiscal year and the percentage of funds expended to date in every third quarterly progress report, as specified in Sections VI.5(b) and (g).
i. In all instances wherein this Order requires written submissions to EPA, each submission must be accompanied by the following certification signed by a "responsible official":
I certify that the information contained in or accompanying this submission is true, accurate and complete to the best of my knowledge and information. As to those portions of this submission for which I cannot personally verify the truth and accuracy, I certify as the Facility Official having supervisory responsibility for the person(s) who, acting upon my direct instructions, made the verification, that this information is true, accurate, and complete.
For the purpose of this certification, a "responsible official" means person in charge of a principal Facility function, or any other person who performs similar decision-making functions for the Facility.
j. EPA may determine, or Respondent may propose that certain tasks, including investigatory work, engineering evaluation, or procedure/methodology modifications, are necessary in addition to or in lieu of the tasks included in any EPA-approved workplan, when such additional work is necessary to meet the purposes set forth in Section III: Statement of Purpose. If EPA determines that Respondent shall perform additional work, EPA will notify the Respondent in writing and specify the basis for its determination that the additional work is necessary. Within thirty (30) days after the receipt of such determination, Respondent shall have the opportunity to meet or confer with EPA to discuss the additional work. If required by EPA, Respondent shall submit for EPA approval, a workplan for the additional work. EPA will specify the contents of such workplan. Such workplan shall be submitted within (30) days of receipt of EPA's determination that additional work is necessary, within (30) days after meeting and/or conferring with EPA, or according to an alternative schedule established by EPA. Upon approval of a workplan by EPA, Respondent shall implement it in accordance with the schedule and provisions contained therein.
6. Health and Safety Requirements
Respondent, its contractors, and subcontractors shall comply with the applicable health and safety requirements found in 29 C.F.R. Part 1910.
VII. Project Manager
1. Within ten (10) days of the effective date of this Order, EPA and Respondent shall each designate a Project Manager and notify each other in writing of the Project Manager it has selected. Each Project Manager shall be responsible for overseeing the implementation of this Order. The EPA Project Manager or his designate will be EPA's designated representative for the Facility. All communications between Respondent and EPA, including all documents, reports, and other correspondence concerning the activities performed pursuant to the terms and conditions of this Order, shall be directed through the Project Managers.
2. The Parties shall provide written notice within five (5) days after changing Project Managers.
3. If EPA determines that activities in compliance or noncompliance with this Order have caused or may cause a release of hazardous waste, hazardous constituents, or is a threat to human health or environment, or that Respondent is not capable of undertaking any studies or corrective measure ordered, EPA may order Respondent to discontinue work being conducted pursuant to this Order for such period of time as EPA determines may be needed to abate any such releases or threats, and/or to undertake any action which EPA determines is necessary to abate such releases or threats. Failure to comply with EPA's stop work order may result in a penalty of not to exceed $25,000 per day of continued non-compliance with EPA's stop work order, pursuant to Section 3008(h)(2) of RCRA, 42 U.S.C. § 6928(h)(2).
4. In the event EPA suspends the Work or any other activity at the Facility, EPA may extend affected schedules under this Order for a period of time equal to that of the suspension of the Work or other activities, plus reasonable additional time for resumption of activities. If the delay pursuant to this section is caused by Respondent or its contractor's non-compliance with this Order, then any extension of the compliance deadlines shall be at EPA's sole discretion. Any extensions in the schedules set out in this Order or its attachments must be made by EPA in writing, and incorporated by reference into this Order.
5. The absence of the EPA Project Manager from the Facility shall not be cause for the stoppage or delay of work.
VIII. Sampling and Data/Document Availability
1. The Respondent shall submit to the EPA the results of all sampling and tests or other data generated by its employees and/or consultants with respect to the implementation of this Order. Data that has not yet undergone QA/QC, shall be submitted with the quarterly progress reports stamped "Subject to Revision".
2. Respondent shall submit these results in quarterly progress reports as described in Attachment I, and Section VI.5(b) of this Order.
3. Respondent shall specify the name and address of the laboratory to be used for sample analysis. EPA reserves the right to conduct a performance and QA/QC audit of the above specified laboratory. If the audit reveals deficiencies in lab performance or QA/QC, resampling and analysis may be required.
4. At the request of EPA, the Respondent shall allow split or duplicate samples to be collected by EPA, and/or its authorized representatives, of any samples collected by the Respondent pursuant to the implementation of this Order. The Respondent shall notify EPA not less than fourteen (14) days in advance of any well installation or sample collection activity.
IX. Quality Assurance
Throughout all sample collections and analysis activities, Respondent shall use EPA-approved quality assurance, quality control, and chain-of-custody procedures, which shall be part of proposed and approved plans. Respondent shall:
1. Follow all applicable EPA guidance documents for sampling and analysis;
2. Notify EPA and TNRCC not less than fourteen (14) days in advance of any field sampling or investigation activity;
3. Inform the EPA Project Manager not less than fourteen (14) days in advance which laboratories will be used by Respondent;
4. Ensure that laboratories used by Respondent for analyses perform such analyses according to EPA methods (SW-846, 3rd Edition, or as superseded) or other methods deemed satisfactory to EPA. If methods other than EPA methods are to be used, Respondent shall submit all protocols to be used for analyses to EPA for approval within thirty (30) days prior to the commencement of analyses; and
5. Ensure that laboratories used by Respondent for analyses participate in a quality assurance/quality control program equivalent to that which is followed by EPA. As part of such a program, and upon request by EPA, such laboratories shall perform analysis on known samples provided by EPA to demonstrate the quality of the analytical data.
X. Corrective Action Management Unit
As part of the remedial activities, Respondent may apply to the EPA for the designation of a corrective action management unit (CAMU) in accordance with 40 CFR Subpart S. If EPA approves Respondent’s application for a CAMU designation, EPA’s written CAMU designation shall be incorporated herein by reference as if reproduced in full.
a. For the purpose of implementing remedies under RCRA Section 3008(h), EPA may designate an area at the facility as a corrective action management unit, as defined in § 260.10, in accordance with the requirements of 40 CFR 264.552. One or more CAMUs may be designated at a facility.
(1) |
Placement of remediation wastes into or within a CAMU does not constitute land disposal of hazardous wastes. |
(2) |
Consolidation or placement of remediation wastes into or within a CAMU does not constitute creation of a unit subject to minimum technology requirements. |
(1)
EPA may designate a regulated unit (as defined in 40 CFR § 264.90(a)(2)) as a CAMU, or may incorporate a regulated unit into a CAMU, if:
(i)
The regulated unit is closed or closing, meaning it has begun the closure process under 40 CFR § 264.113 or § 265.113; and
(ii)
Inclusion of the regulated unit will enhance implementation of effective protective and reliable remedial actions for the facility.
(2)
The subpart F, G, and H requirements and the unit-specific requirements of 40 CFR Part 264 or 265 that applied to that regulated unit will continue to apply to that portion of the CAMU after incorporation into the CAMU.
c. EPA shall designate a CAMU in accordance with the following:
(1)
The CAMU shall facilitate the implementation of reliable, effective, protective, and cost-effective remedies;
(2)
Waste management activities associated with the CAMU shall not create unacceptable risks to humans or to the environment resulting from exposure to hazardous wastes or hazardous constituents;
(3)
The CAMU shall include uncontaminated areas of the facility, only if including such areas for the purpose of managing remediation waste is more protective than management of such wastes at contaminated areas of the facility;
(4)
Areas within the CAMU, where wastes remain in place after closure of the CAMU, shall be managed and contained so as to minimize future releases, to the extent practicable;
(5)
The CAMU shall expedite the timing of remedial activity implementation, when appropriate and practicable;
(6)
The CAMU shall enable the use, when appropriate, of treatment technologies (including innovative technologies) to enhance the long-term effectiveness of remedial actions by reducing the toxicity, mobility, or volume of wastes that will remain in place after closure of the CAMU; and
(7)
The CAMU shall, to the extent practicable, minimize the land area of the facility upon which wastes will remain in place after closure of the CAMU.
(d)
Respondent shall provide sufficient information to enable EPA to designate a CAMU in accordance with the criteria in 40 CFR § 264.552.
(e)
EPA shall specify the requirements for CAMUs in the order to include the following:
(1)
The areal configuration of the CAMU.
(2)
Requirements for remediation waste management to include the specification of applicable design, operation and closure requirements.
(3)
Requirements for ground water monitoring that are sufficient to:
(i)
Continue to detect and to characterize the nature, extent, concentration, direction, and movement of existing releases of hazardous constituents in ground water from sources located within the CAMU; and
(ii)
Detect and subsequently characterize releases of hazardous constituents to ground water that may occur from areas of the CAMU in which wastes will remain in place after closure of the CAMU.
(4)
Closure and post-closure requirements
(i)
Closure of corrective action management units shall:
(a)
Minimize the need for further maintenance; and
(b)
Control, minimize, or eliminate, to the the extent necessary to protect human health and the environment, for areas where wastes remain in place, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground, to surface waters, or to the atmosphere.
(ii)
Requirements for closure of CAMUs shall include the following, as appropriate and as deemed necessary by EPA for a given CAMU:
(a)
Requirements for excavation, removal, treatment or containment of wastes;
(b)
For areas in which wastes will remain after closure of the CAMU, requirements for capping of such areas; and
(c)
Requirements for removal and decontamination of equipment, devices, and structures used in remediation waste management activities within the CAMU.
(iii)
In establishing specific closure requirements for CAMUs under 40 CFR § 264.552(e), EPA shall consider the following factors:
(a)
CAMU characteristics;
(b)
Volume of wastes which remian in place after closure;
(c)
Potential for releases from the CAMU;
(d)
Physical and chemical characteristics of the waste;
(e)
Hydrological and other relevant environmental conditions at the facility which may influence the migration of any potential or actual releases; and
(f)
Potential for exposure of humans and environmental receptors if releases were to occur from the CAMU.
(iv)
Post-closure requirements as necessary to protect to protect human health and the environment, to include, for areas where wastes will remain in place, monitoring and maintenance activities, and the frequency with which such activities shall be performed to ensure the integrity of any cap, final cover, or other containment system.
(f)
EPA shall document the rationale for designating CAMUs and shall make such documentation available to the public.
(g)
The designation of a CAMU does not change EPS's existing authority to address clean-up levels, media-specific points of compliance to be applied to remediation at a facility, or other remedy selection decisions.
XI. Reporting and Public Access to Documents and Sampling Data
The Respondent may assert a confidentiality claim covering all or part of any information submitted to EPA pursuant to this Order. Analytical data generated pursuant to this Order shall not be claimed as confidential. Confidentiality claims processed by EPA in accordance with the procedures outlined in 40 C.F.R. Part 2, or other applicable legal authority, shall include a written statement explaining how the information claimed to be confidential meets the substantive criteria for use in confidentiality determinations found in 40 C.F.R. § 2.208. If EPA approves the claim, EPA will afford the information confidential status, as specified in 40 C.F.R. Part 2, Subpart B. Information determined not to be confidential may be made available to the public without further notice to the Respondent. If the Respondent makes no claim of confidentiality for information submitted pursuant to this Order, EPA will make the information available without further notice to the Respondent.
XII. Public Comment and Participation in Corrective Measure(s) Selection
1. EPA will provide the public with an opportunity to review and comment on the final draft, and any subsequent drafts, of the Corrective Measures Study Report and a description of Respondent’s proposed corrective measure(s), including Respondent’s justification for proposing such corrective measure(s) (the "Statement of Basis").
2. Following the public comment period, Respondent will respond to comments from the public, as appropriate. EPA may approve the Corrective Measures Study Report and approve Respondent’s selection of one of the proposed final corrective measure(s) or require Respondent to revise the Report and/or perform additional corrective measures studies.
3. EPA will approve Respondent’s selected corrective measure in the Final Decision and Response to Comments (RTC). The notification will include EPA's reasons for approving the corrective measure.
XIII. Facility Access and Record Retention
1. EPA, and/or any EPA authorized-representative(s) are authorized, allowed, and permitted, pursuant to Section 3007(a) of RCRA, 42 U.S.C. § 6927(a), to enter onto and to be escorted around all property at the Facility at all reasonable times for the purposes of enforcing the requirements of RCRA. EPA shall provide advance notice of any request for entry onto the Facility.
2. Respondent shall allow EPA to inspect and copy all documents and other writings, including all sampling and monitoring data, pertaining to work undertaken pursuant to this Order.
3. To the extent areas adjacent to the Facility are owned by parties other than those bound by this Order, Respondent shall use its best efforts to obtain site access agreements from the present owners to perform work pursuant to this Order no later than thirty (30) days after EPA approval of the specific workplan. Best efforts shall include, but not be limited to, payment by Respondent of reasonable rental costs and compensation for losses sustained by the owner or occupant of the realty. Access agreements shall provide access to Respondent, its Contractor(s), the United States, EPA, the State of Texas, TNRCC, and their representatives, including contractors. Any such access agreements shall be incorporated by reference into this Order. In the event that site access agreements are not obtained within thirty (30) days of the specific workplan approval, Respondent shall notify EPA by telephone within 24 hours after expiration of the above thirty (30) day period, and shall within seven (7) days of the oral notification, notify EPA in writing of the failure to gain such site access agreements regarding both the lack of, and efforts to obtain, such agreements. If EPA is able to obtain access, Respondent shall thereafter perform work described in this Order.
4. Nothing in this subsection is intended to limit, affect or otherwise constrain EPA's rights of access to property pursuant to applicable law.
5. All data, information, and records created or maintained in connection with the implementation of work under this Order, including the Respondent's contractors, shall be made available to EPA upon request. Respondent shall retain all such data, information or records for six (6) years after termination of the Order, and provide notification to EPA and TNRCC sixty (60) days prior to the destruction of any such documents. All employees of Respondent and all persons, including contractors who engage in activity under this Order, shall be available to and shall cooperate with the EPA.
XIV. Funding
1. Respondent agrees to obtain sufficient funding through its budgetary process to fulfill its obligations under this Order.
2. Notwithstanding the provision of Paragraph 1 of this section, any requirement for the payment or obligation of funds by Respondent established by the terms of this Order shall be subject to the availability of appropriated funds, and no provision herein shall be interpreted to require obligation or payment of funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341. In cases where payment or obligation of funds would constitute a violation of the Anti-Deficiency Act, the compliance schedules contained herein, which would require the payment or obligation of such funds, shall be adjusted. Failure to obtain adequate funds or appropriations from Congress does not release the Respondent from its ultimate obligation to comply with this Order as expeditiously as possible.
3. If funds are not externally approved or appropriated as requested, the Respondent shall report the lack of funds to EPA within ten (10) calendar days in accordance with Section VI.5.(f). The Respondent's notification shall include: (1) an explanation of the shortage of funds; (2) an evaluation of the priorities within the remaining work to be performed; (3) a discussion of the options; and (4) a recommendation for modifications to the appropriate work plans. EPA shall approve or modify the Respondent's recommendation and notify the Respondent thereof. The EPA-approved recommendation shall be deemed an amendment to this Order unless the Respondent invokes dispute resolution within (ten) 10 days after receipt thereof.
XV. Dispute Resolution
1. The Parties to this Order shall make reasonable efforts to resolve disputes at the Project Manager or immediate supervisor level. If resolution cannot be achieved, the procedures of this section shall be implemented to resolve a dispute.
2. If Respondent disagrees, in whole or in part, with any EPA disapproval or modification or other decision or directive made by EPA pursuant to this Order, the CSSA Commander shall notify EPA in writing of its objections and the basis therefore, within fourteen (14) calendar days of receipt of EPA's disapproval, decision, or directive. Said notice shall set forth the specific points of the dispute, how the position Respondent is maintaining is consistent with the requirements of this Order, the basis for Respondent's position, and any matters which it considers necessary for EPA's determination. Within fourteen (14) calendar days of EPA's receipt of such written notice, the Director of the Compliance Assurance & Enforcement Division shall provide to Respondent its decision on the pending dispute.
3. EPA’s decision pursuant to paragraph two (2) of this Section shall be binding upon both parties to this Order, unless a General Officer or Senior Executive Service-level person within Respondent’s chain of command for environmental issues, within ten (10) calendar days, notifies EPA in writing of its continued objection(s) and requests the Region 6 Regional Administrator to convene a conference for the purpose of discussing Respondent's objections and the reasons for EPA's determination. The Regional Administrator shall issue a written decision within fourteen (14) calendar days from the date of the informal conference, which shall be binding and incorporated into this Order. The failure to invoke these Dispute Resolution procedures shall constitute a waiver of the right to contest a specific requirement of this Order.
4. The pendency of any dispute under this Section shall not affect Respondent’s responsibility for timely performance of the work required by this Order, except that the time period for completion of work affected by such dispute shall be extended for a period not to exceed the actual time taken to resolve any good faith dispute in accordance with the procedures specified herein.
5. During the pendency of the dispute resolution process, stipulated penalties with respect to the disputed matter shall be tolled.
XVI. EPA Approvals/Disapprovals
All decisions, determinations, and approvals required to be made by EPA under this Order must be in writing. If EPA does not approve any plan, report, or other item required to be submitted to EPA for its approval pursuant to this Order, Respondent shall address any deficiencies as directed by the EPA, and resubmit the plan, report, or other item for the EPA's approval within the time frame specified in this Order.
XVII. Reservation of Rights
1. EPA expressly reserves all statutory and regulatory powers, authorities, rights, remedies, both legal and equitable, which may pertain to Respondent's failure to comply with any of the requirements of this Order, including without limitation, the assessment of penalties under Section 3008(h)(2) of RCRA, 42 U.S.C. § 6928(h)(2). This Order shall not be construed as a waiver or limitation of any rights, remedies, powers and/or authorities which EPA has under RCRA, CERCLA, or any other statutory, regulatory, or common law enforcement authority of the United States.
2. This Order shall not be construed to affect or limit the rights or responsibilities of any Federal, State, or local agency or authority pursuant to any other statutory provision, nor shall the entry of this Order limit or otherwise preclude the EPA from taking additional enforcement action pursuant to Section 3008(h) of RCRA, 42 U.S.C. § 6928(h), Section 106 of CERCLA, 42 U.S.C. § 9606, or any other available legal authority, should the EPA determine that such actions are warranted. Nor shall this Order be construed to affect or limit in any way the obligation of the Respondent to comply with all Federal, State, and local laws and regulations governing the activities required by this Order. This Order shall not be construed as a ruling or determination of any issue related to any Federal, State, or local permit whether required in order to implement this Order or required in order to continue or alter operations of the Facility (including but not limited to construction, operation or closure permits required under RCRA), and the Respondent shall remain subject to all such permitting requirements. Nothing in this Order is intended to release or waive any claim, cause of action, demand or defense in law or equity that any party to this Agreement may have against any person(s) or entity not a party to this Agreement.
3. EPA expressly reserves all rights and defenses that it may have, including the right both to disapprove of work performed by Respondent pursuant to this Order, and to request that Respondent perform tasks in addition to those stated in Attachment I of this Order.
4. Notwithstanding any other provision of this Order, the Respondent shall remain responsible for obtaining any applicable Federal, State, or local permit for any activity at the Facility including those necessary for the performance of the work and for the operation or closure of the Facility.
XVIII. Subsequent Modification of Order
After consultation with the Respondent, this Order may be modified by EPA to ensure protection of human health and the environment. Such amendments shall be in writing, and shall be effective and incorporated into the Order on the date that such amendments are signed by EPA. Any reports, plans, specifications, schedules, and attachments required by this Order are, upon written approval by EPA, incorporated into this Order. Upon the request of the Respondent, EPA may extend the deadlines set forth in this Order.
XIX. Stipulated Penalties
1. Unless there has been a written modification of a schedule by EPA, or compliance with any provision of this order would result in Respondent exceeding available funding levels, or the Force Majeure provisions of this Order are invoked, Respondent’s failure to comply with any scheduled requirement, condition or term, set forth in this Order in the time or adequacy specified herein, shall result in Respondent paying a Stipulated Penalty as follows.
Period of Failure to Comply |
Penalty Per Violation Per Day |
1st day through 30th day |
$500.00 |
31st day through 60th day |
$1,000.00 |
61st day and beyond |
$5,000.00 |
2. Stipulated penalties under this Section shall be paid no later than thirty (30) days after Respondent's receipt of written notification of noncompliance from EPA. Such stipulated penalties shall be paid by money order, certified check, or cashier's check made payable to the "Treasurer of the United States" and mailed to:
Regional Hearing Clerk (6C)
U.S. EPA, Region 6
P.O. Box 360582M
Pittsburgh, PA, 15251
3. Document No. VI002(h)99-H FY99 should be clearly typed on the check to ensure proper credit. Respondent shall send simultaneous notices of such payments, including copies of the money order, cashier's check or certified check to the following:
Section Chief
Technical Section, (6EN-HX)
Hazardous Waste Enforcement Branch
Compliance Assurance and Enforcement Division
U.S. EPA, Region 6
1445 Ross Avenue
Dallas, TX 75202-2733
Chief, Legal Branch (6RC-EW)
Office of Regional Consel
U.S. EPA, Region 6
1445 Ross Avenue
Dallas, TX 75202-2733
4. Respondent may dispute EPA's right to the stated amount of penalties, including the applicable time frame or start date for which stipulated penalties apply, by invoking the dispute resolution procedures under Section XV of this Order. During the dispute resolution process, stipulated penalties shall be tolled until a final decision is reached. If Respondent does not prevail upon resolution of the dispute, stipulated penalties shall begin to accrue on the date the final decision is reached, and EPA shall collect all penalties which accrued prior to the tolling of the stipulated penalties. If Respondent prevails upon resolution of the dispute, no penalties on the disputed issue shall be payable.
5. The stipulated penalties set forth in this Section do not preclude EPA from pursuing any other remedies or sanctions that may be available to EPA by reason of Respondent's failure to comply with any of the requirements of this Order. If EPA elects to pursue any other remedies or sanctions that may be available to EPA by reasons of Respondent’s failure to comply with any of the requirements of this order, any assessed stipulated penalties will be credited towards the other remedies or sanctions.
XX. Other Claims
Nothing in this Order shall constitute or be construed as a release from any claim, cause of action, demand, or defense in law or equity, against any person, firm, partnership, or corporation 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 constituents, hazardous substances, hazardous wastes, pollutants, or contaminants found at, taken to, or taken or migrating from the Facility.
XXI. Participation in Community Relations Activities
Respondent shall plan, provide support, and attend public meetings, as appropriate, to explain corrective action activities at or concerning the Facility, including the findings of the RFI and CMS.
XXII. Termination and Satisfaction
1. Respondent may seek termination of this Order by submitting to EPA a written document which indicates Respondent's compliance with all requirements of this Order and the associated dates of approval correspondence from EPA. The provisions of this Order shall be deemed satisfied upon Respondent's and EPA's execution of an "Acknowledgment of Termination and Agreement to Record Preservation and Reservation of Rights" ("Acknowledgment"). The Acknowledgment will specify that Respondent has demonstrated to the satisfaction of EPA that the terms of this Order, including any additional tasks determined by EPA, under Sections XVII and XVIII, to be required pursuant to this Order, have been satisfactorily completed. Respondent's execution of the Acknowledgment will affirm Respondent's continuing obligation (1) to preserve all records as required in Section XIII "Facility Access and Record Retention"; and (2) to recognize EPA's reservation of rights as required in Section XVII "Reservation of Rights", after all other requirements of the Order are satisfied.
2. This Order may also be terminated upon Respondent's receipt of written notice from EPA that Respondent has demonstrated, that the terms of the Order, including any additional tasks determined by EPA to be required pursuant to this Order, have been satisfactorily completed. This notice shall also affirm Respondent's continuing obligation (1) to preserve all records as required in Section XIII "Facility Access and Record Retention"; and (2) to recognize EPA's reservation of rights as required in Section XVII "Reservation of Rights", after all other requirements of the Order are satisfied.
XXIII. Limitation of EPA Liability
EPA shall not be liable for any injuries or damages to persons or property resulting from acts or omissions of the Respondent, its officers, directors, employees, agents, receivers, trustees, successors, assigns, or contractors in carrying out activities pursuant to this Order, nor shall the EPA be held out as a party to any contract entered into by the Respondent in carrying out activities pursuant to this Order.
XXIV. Other Enforcement Authority
Failure or refusal to carry out the terms of this Order in a manner deemed satisfactory to EPA may subject Respondent to a civil penalty enforcement action in an amount not to exceed $25,000 for each day of non-compliance with this Order, in accordance with Section 3008(h) of RCRA, 42 U.S.C. § 6928(h).
XXV. Statement of Severability
If any provision or authority of this Order, or the application of this Order to any party or circumstances, is held by any judicial or administrative authority to be invalid, the application of such provisions to other parties or circumstances and the remainder of the Order shall not be effected thereby.
XXVI. Force Majeure
1. Respondent shall perform all the requirements of this Order according to the time frames set unless this performance is prevented or delayed by events which constitute a Force Majeure.
2. For the purposes of this Order, a Force Majeure is defined as any event arising from causes beyond the control of Respondent, which could not have been prevented or mitigated through the exercise of due diligence, that delays or prevents the performance of any obligation under this Order. Such events do not include increased costs of performance, economic hardship, changed economic circumstances, normal precipitation events, or failure to submit timely and complete applications for Federal, State, or local permits. A Force Majeure shall include insufficient availability of funds in the environmental management program only if the Respondent shall have made timely requests for such funds as part of the budgetary process set forth in Section XIV of this Order.
3. Respondent has the burden of proving by clear and convincing evidence that any delay is or will be caused by events beyond its control. EPA shall make the final determination as to whether certain events constitute a Force Majeure.
4. In the event of a Force Majeure, Respondent shall immediately notify EPA by telephone within 24 hours after Respondent becomes aware of the event and shall within seven (7) days of the oral notification, notify EPA in writing of the cause and anticipated length of the delay. The notification shall also state the measures taken and/or to be taken to prevent or minimize the delay, and the time table by which Respondent intends to implement the delayed activity. Failure of Respondent to comply with the Force Majeure notice requirements will be deemed a forfeiture of its right to Force Majeure.
5. In the event of a Force Majeure, the time for performance of the activity delayed by the Force Majeure may be extended for the period of the delay attributable to the Force Majeure plus reasonable additional time for resumption of activities. The time for performance of any activity dependent on the delayed activity shall be similarly extended, except to the extent that the dependent activity can be implemented in a shorter time. EPA shall determine whether subsequent requirements are to be delayed and the time period granted for any delay. Respondent shall adopt all reasonable measures to avoid or minimize any delay caused by a Force Majeure.
XXVII. Survivability/Permit Integration
1. Subsequent to the issuance of this Order, a RCRA permit or Post-Closure Order may be issued to the Facility incorporating the requirements of this Order by reference.
2. Any requirements of this Order shall not terminate upon the issuance of a RCRA permit or Post-Closure Order unless all Order requirements of the Corrective Action Plan (Attachment I) are expressly replaced by the requirements in the permit or all provisions of this Order have been fully complied with to EPA's satisfaction as per Section XXII of this Order.
XXVIII. Effective Date
The Effective Date of this Order shall be the date on which it is signed by the EPA. Because this Order was entered with the consent of both parties, Respondent explicitly waives its right to request a hearing on this matter and consents to the issuance of this Order without a hearing pursuant to § 3008(b) of RCRA as an Order issued pursuant to § 3008(h) of RCRA, 42 U.S.C. 6928(b).
It is so agreed and ordered:
Dated:
By:
Ernest N. Roberson, Jr.
Commanding Lieutenant Colonel, U.S. Army
CSSA
Dated:
By:
Samuel Coleman, P.E., Director
Compliance Assurance &
Enforcement Division
U.S. Environmental Protection Agency, Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733
Certificate of Service
I hereby certify that on the 5th day of May, 1999, the original of the foregoing Administrative Order on Consent was hand delivered to the Regional Hearing Clerk, U.S. Environmental Protection Agency, Region 6, First Interstate Bank Tower, 1445 Ross Avenue, Dallas, Texas 75202-2733, and that a true and correct copy of the Administrative Order on Consent was hand delivered to Brian Murphy, the Project Manager for the Respondent on the 5th day of May, 1999.
Signature