|
13 ELR 20192 | Environmental Law Reporter | copyright © 1983 | All rights reserved United States v. Seymour Recycling Corp.No. IP-80-457-C (S.D. Ind. December 15, 1982)The Environmental Protection Agency (EPA) and the State of Indiana sign a consent decree with 24 companies who allegedly generated and/or caused to be transported solid and hazardous waste disposed of at the Seymour Recycling site, Indiana. The settling companies were defendants in a lawsuit brought by EPA under $7003 of the Resource Conservation and Recovery Act, $311 of the Federal Water Pollution Control Act, and §§ 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, which wought abatement of the imminent and substantial endangerment at the site and response costs. Under the decree, the settling companies agree to pay a total of $7.8 million into the Seymour Site Trust Fund, which will be used to apy Chemical Waste Management for the surface cleanup at the site. In return, the federal, state, and local governments agree not to take any judicial or administrative action against the settling companies. However, the decree states that the federal and state governments do not release any claim for cost recovery, injunctive, or other relief that they may have against entities not parties to the consent decree. Counsel for Plaintiffs. Charles Goodloe Jr., U.S. Attorney Mitchell Burack Frank Biros Counsel for Defendant IBM Consent Decree WHEREAS, the United States of America ("United States") filed a complaint in this case on May 9, 1980, under Section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973, and Section 311 of the Clean Water Act ("CWA"), 33 U.S.C. § 1321, alleging, inter alia, the existence of an imminent and substantial endangerment to human health, welfare and the environment due to the handling, treatment, storage, transportation, disposal and presence of solid and hazardous wastes and other pollutants and contaminants ("Materials") at Freeman Field Industrial Part near Seymour, Indiana ("Seymour site"); and WHEREAS, the United States filed an amended complaint on the 26 day of Oct., 1982, under Sections 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9606, 9607, alleging, inter alia, that as responsible parties under CERCLA, those companies listed in Exhibit A hereto (hereinafter the "companies") have created or contributed to the existence of an imminent and substantial endangerment to public health, welfare or the environment at the Seymour site and are thus liable for abatement of the endangerment and for costs expended by the United States to abate the endangerment at the Seymour site; and WHEREAS, the Companies deny responsibility for the disposal of materials at the Seymour site and deny any legal or equitable liability under any statute, regulation, ordinance or common law for any response costs or damages caused by storage, treatment, handling or disposal activities or actual or threatened release of materials at the Seymour site or by materials, if any, disposed of by the Companies to, through or at the direction of Seymour Recycling Corporation or any of the defendants in Civil Action No. IP-80-457-C; and WHEREAS, (1) the United States, (2) the State of Indiana ("State"), and (3) the County of Jackson, Indiana, the City of Seymour, Indiana and the Board of Aviation Commissioners of the City of Seymour, Indiana (the latter three entities hereinafter the "local governments") desire to covenant not to sue, not to issue administrative orders or to execute judgment against the Companies for civil matters arising out of the transportation, storage, treatment, handling, disposal or presence of materials by the Companies at the Seymour site but not in such a way as to impair any claim which the United States or State may hae against any other person or entity than the Companies; and WHEREAS, it is not the intention ofthe United States or the State by entering into this Consent Decree to settle any claim, or to covenant not to sue or issue administrative orders or not to execute judgment against any other persons or entities other than the Companies for liability arising under any statute or common law with respect to the transportation, storage, treatment, handling, disposal or presence of materials at the Seymour site; and WHEREAS, it is the intention of the United States or the State to seek additional relief from persons or entities other than the Companies for costs incurred by the United States or the State and for injunctive of other relief to which the United States or the State may be entitled at law or equity arising out of and resulting from the transportation, storage, treatment, handling, disposal or presence of materials at the Seymour site to enable the United States and the State to recover the full relief available to them at law or equity from all parties who may be liable for cost recovery and injunctive or other relief at the Seymour site; and WHEREAS, the parties recognize and intend to further hereby the public interest in avoiding prolonged and complicated litigation between the parties and to expedite the abatement of a portion of the imminent and substantial endangerment which is alleged to or may be presented at the Seymour site; and WHEREAS, each undersigned representative of the parties to this Consent Decree certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Decree and to execute and to legally bind such party to this document. Therefore, It is Ordered, Adjudged and Decreed: This Court has jurisdiction of this matter and of the parties consenting thereto. II. This Decree applies to and is binding upon the undersigned parties and their successors and assigns. The sole obligations and responsibilities of the Companies, other than Chemical Waste Management, Inc. (hereinafter "CWM"), under this Decree are set forth in Paragraphs III, XI, XIV, XV and XVII herein, and such Companies shall not have any further obligations or responsibilities with respect to the Seymour site other than those under the aforesaid provisions of this Decree. The obligations of CWM under this Decree are set forth in Paragraphs III-XI, XIV, XV and XVII. Within fifteen (15) days after the entry of this Decree, the Companies each shall pay to the Seymour Site Trust Fund (hereinafter the "Trust Fund") established at the Merchants National Bank & Trust Company in Indianapolis, Indiana the sum which is shown for that Company in Exhibit A hereto, which payment is not a penalty. One or more of the Companies listed in Exhibit A hereto shall serve as Trustees of the Trust Fund. The Trustees shall use the money in the Trust Fund to pay CWM to perform the Work described in Exhibit B hereto (hereafter referred to as the "Work"), which Exhibit is hereby incorporated by reference and made a part of this Consent Decree as though it were set forth verbatim. CWM shall be responsible for completion of the Work; and, CWM agrees to assume, and does assume, any and all liability arising out of its acts or omissions in the performance of the Work or its failure to satisfactorily and fully perform and complete the Work as defined in Exhibit B hereto. CWM shall purchase a performance bond in the amount of $15 million dollars, which bond shall assure complete performance of the Work. In event of default the bond shall provide that the Work shall be satisfactorily and fully completed and in no event shall the bond authorize the surety to avoid its obligations to have the work fully completed. CWM shall purchase and maintain in force insurance policies which shall fully protect the United States, the State and the public against any and all liability arising out of its acts or omissions in the performance of the Work. The insurance policies and the performance bond shall contain coverage of the type and in the amounts shown in Exhibits C and D hereto, which coverage has been approved by the United States and the State. Subject to obtaining the appropriate federal, state and local permits, CWM shall commence the Work not later than the 30th (thirtieth) day after entry of this Decree and CWM shall undertake and complete the Work expeditiously in accordance with the standards, specifications and the schedule of completion set forth in Exhibit B. No variance shall occur in performance of the Work from the standards, specifications, or schedule of completion contained in Exhibit B without prior written approval by the United States after written notification by CWM to the United States, the State and the Trustees of the nature of and reason for any such requested variance. CWM shall be responsible for obtaining all federal, state or local permits and complying with all applicable federal, state or local laws governing the performance of the Work, including the transportation and disposal of the Materials. CWM shall provide the Court, the United States and the State with a written status report on the progress and completion of the Work every 30 days until the Work is completed. CWM shall be liable for stipulated penalties in the amount of $1,000 (one thousand dollars) for each day on which it fails to complete the performance of the Work in accordance with Exhibit B. Any failure of CWM to complete the Work which results from circumstances beyond the control of CWM shall not be deemed to be a violation of its obligation and shall not make CWM liable for the stipulated penalties. To the extent delay is caused by such circumstances, the time for performance hereunder shall be extended. CWM shall immediately notify the United States, the State and the Trustees of any delay which occurs in the performance of the Work. Such notification shall be in writing and shall fully describe the nature of the delay, the reasons therefor, the expected duration of the delay, the actions which will be taken by CWM to mitigate further delay and whether the delay may in the opinion of CWM cause or contribute to an endangerment to public health, welfare or the environment. If CWM fails to provide the notice required by this paragraph to the United States it may not receive any extension of time under this decree. In the event CWM and the United States and the State cannot agree that the time for performance shall be extended, CWM must submit the question to the Court for resolution within a reasonable time or waive its right to receive any such extension. Increased costs or expenses in connection with the performance of the Work shall not constitute a circumstance beyond CWM's control. The United States, the State and their authorized representatives shall have access to the Seymour site at all times until such time as the Work is completed. The United States Environmental Protection Agency (EPA) may designate an on scene coordinator (osc) to observe and monitor the progress of the Work. The osc shall have the authority vested by 40 C.F.R. 300 et seq.; 47 Fed. Reg. 31180 July 16, 1982, including authority to require CWM to cease performance of the Work, any portion thereof, or any other activity at the Seymour site which in the opinion of the osc, may or does present or contribute to an endangerment to public health, welfare or the environment or cause or threaten the release of Materials from the site. In the event the osc does require such cessation of work, the osc then shall have the authority to require CWM to perform the Work consistent with Exhibit B in accordance with the instructions of the osc to avoid or mitigate the endangerment which he believes may occur. If CWM objects to any order requiring cessation of the Work or to any order to perform the Work in accordance with the instructions of the osc, it may petition to the Court to stay or set aside the order of the osc. With respect to the subject matter of this paragraph EPA retains all rights under applicable statute or regulations. Until such time as the Work is completed, the United States and the State or their representatives (including the osc) shall have access to the site for the sampling of wastes at the site and to conduct investigations relating to soil and groundwater contamination beneath or near the Seymour site. In conducting such activities the United States or the State or their representatives shall avoid interference with CWM's performance of the Work. CWM agrees to cooperate with the United States and the State by promptly making available to them all information obtained during the performance of the Work by CWM including information relating to the source and identification of Materials removed from the Seymour site. CWM also agrees to preserve all records related to the Seymour site cleanup, including sampling analysis, chain of custody records, manifests, trucking logs, receipts, reports, traffic routing, destination of Materials, correspondence or other documents produced during the Work at the Seymour site and agrees further that it shall make available such documents, along with access to employees with knowledge of relevant facts concerning the performance of the Work for purposes of investigation, information gathering or testimony related to the Work and Materials found at the Seymour site. CWM agrees to cooperate with representatives of the United States and the State to permit such representatives to take samples including split samples at all locations whether samples are taken at such locations by CWM or not. Sampling and analysis shall be done by all parties pursuant to EPA protocols. Arrangements for such samples shall be made by the osc. CWM agrees that samples taken shall be handled according to accepted chain of custody procedures established by the National Enforcement Investigation Center to be provided to CWM by the United States. Before disposal of any samples by CWM, the EPA shall be given thirty days notice and opportunity to take possession of these samples. X. CWM shall notify the United States and the State in writing upon the completion of the Work. The Work shall be deemed to be completed when pursuant to the scope of Work in Exhibit B, all materials have been disposed of or treated in accordance with all federal, state and local laws and regulations. Nothing in this decree shall release CWMfrom liability arising out of or relating to the transportation, treatment, handling, disposal, storage, or releases or threatened releases of Materials at, to, from or near the Seymour site resulting from its performance of the Work. The United States and the State shall review the Work and indicate their agreement or disagreement as to its satisfactory completion within thirty (30) days of receipt of the notification. If neither the United States nor the the State advises CWM in writing of any disagreement concerning the completeness of the Work performed within such thirty (30) day period, it shall be deemed that such Work has been completed in full compliance with this decree and the United States and the State shall send a letter to CWM confirming in writing that the Work has been completed. If the United States or the State believes that the Work has not been completed in accordance with the standards and specifications set out in Exhibit B, they shall notify CWM in writing of what they believe should be done to complete the Work making reference to specific portions of Exhibit B attached hereto and proposing a schedule for completion. If CWM does not object to the corrective measures proposed by the United States or the State within thirty (30) days thereafter, CWM shall expeditiously undertake and complete such measures in accordance with the proposed schedules of completion. If CWM objects to such proposed corrective measures, CWM shall notify the United States and the State within 30 days thereafter of its objections and the reasons therefor. In the event the parties cannot resolve any dispute over whether the Work has been successfully and fully completed, CWM shall submit such dispute to the Court for resolution within 30 days. Failure of CWM to submit such a dispute to the Court shall mean that CWM waives its objections and CWM shall expeditiously undertake and complete the proposed corrective measures in accordance with the schedule of completion. The Companies agree that they will each preserve for six months after the effective date of this consent decree, all records and documents in their possession or the possession of any of their divisions, employees, agents, accountants or attorneys, which relate to any transactions or business with, or relate in any other way to Seymour Recycling Corporation or associated parties or the Seymour site, despite any document retention policy to the contrary. The term "associated parties" shall be defined as Seymour Manufacturing Company, Chem-Dyne Corporation, Spray-Dyne Corporation, Transenvironmental Corporation, K.O.I. Petroleum Company, Inc., Bruce A. Whitten, and William L. Kovacs. Notwithstanding any other provision of this decree, the United States retains whatever rights it may have under applicable statutes and regulations, governing the collection of records and documents, which is the subject matter of this paragraph, and the Companies retain whatever rights they may have to object to any requests for records and documents. To avoid litigation between the parties hereto and the expense that would be incurred in connection with such litigation, and to set to rest forever the differences existing among them, without impairing or affecting the claims of the United States, the State and the local governments against any other person or entity in connection with the Seymour site, the United States, the State and the local governments do hereby covenant not to sue, execute judgment or take any civil judicial or administrative action under common law (federal or state), State and municipal law including ordinances of Jackson County, the City of Seymour or the Seymour Aviation Board, and the following federal statutes: Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA); Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA); Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA); The Clean Air Act, 42 U.S.C. 7401 et seq. (CAA); Toxic Substances Control Act, 15 U.S.C. 2601 et seq. (TSCA); Safe Drinking Water Act, 42 U.S.C. 300f et seq. (SDWA); Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq. (FIFRA); the Refuse Act, 33 U.S.C. 407, and any statutes administered or enforced by EPA, against the Companies, their subsidiaries, divisions, parents, affiliates or their respective directors, officers, employees, agents, successors and assigns, arising out of or related to the storage, treatment, handling, disposal, transportation or presence or actual or threatened release or discharge of any materials at, to, from or near the Seymour site, including any action with respect to surface cleanup and soil or groundwater cleanup at the Seymour site. This covenant not to sue, execute judgment or take other action includes all civil legal and administrative costs incurred by the United States, the State and the local governments with respect to matters which are the subject of this Consent Decree. It is expressly understood that the United States, the State and the local governments covenant not to sue, execute judgment, or take any civil, judicial or administrative action against the Companies under common law (federal or state), or federal law, state law or municipal law including ordinances of Jackson County, the City of Seymour and the Seymour Aviation Board for causes of action relating to injury to, destruction of or loss of natural resources of the United States, within the meaning of CERCLA, 42 U.S.C. § 9601 et seq., under the jurisdiction of the United States Department of Interior, arising out of or related to the storage, treatment, handling, disposal, transportation, presence, or actual or threatened released or discharge of any materials at, to, or from or near the Seymour site. The matters which are the subject of this covenant not to sue or execute judgment contained in this decree are referred to hereafter as "Covered Matters." Nothing herein shall be construed to release CWM from any continuing liability at law for its failure to perform the Work in accordance with Exhibit B. To the extent that the law of the State of Indiana may be determined to control and govern the interpretation of this Consent Decree, the parties do not intend that this paragraph shall be a general, unqualified release as that term is defined by Indiana law. The parties intend that this paragraph shall be construed to be a covenant not to sue, execute judgment or take any civil judicial or administrative action against only the Companies which are listed in Exhibit A hereto. The parties agree that the successful completion of the Work by CWM does not represent full satisfaction of all claims for relief to which the United States or the State or local governments may be entitled at law or equity against persons or entities other than the Companies arising out of or relating to the storage, treatment, handling, transportation, disposal or presence or actual or threatened release or discharge of any materials at, to, from or near the Seymour site. The parties contemplate and intend that the United States or the State will assert claims for cost recovery, injunctive or other relief against entities which are not parties to this Consent Decree to enable the United States and the State to recover the complete relief to which they may be entitled at law or equity. To this end, nothing herein is intended to release any claims, causes of action, or demands in law or equity against any person or entity not a party to this Consent Decree for any liability they may have arising out of or relating in any way to the storage, treatment, handling, disposal, transportation, presence or actual or threatened release or discharge of any materials at, to, from or near the Seymour site. This Consent Decree was negotiated in good faith by the parties and the United States, the State, and the local governments believe that each of the individual Company's payments described in exhibit A attached hereto represent a fair and equitable apportionment of each company's responsibilities for Covered Matters. In addition, the United States, the State and the local governments believe that the cobmined payments of the Companies in Exhibit A represent a fair and equitable apportionment of those Companies' responsibilities for Covered Matters. Accordingly, the United States and the State intend and believe that each and all of the Companies should not be liable with respect to "Covered Matters" for any payment in excess of the [13 ELR 20195] amount paid or commitments made pursuant to this consent decree and agree that this consent decree will be dispositive of each and all of the Companies' duties and liabilities with respect to any other person or entity against whom a claim is made by the United States or the State, or a judgment is rendered in favor of the United States or the State for Covered Matters. To this end, the parties intend to protect each and all of the Companies from being required to pay any amounts for covered matters in excess of the amounts paid pursuant to paragraph II above; to obviate the necessity and expense of having the Companies be or remain parties of record or participate in a suit relating to their liability for "Covered Matters" for the purpose of determining whether they or any of them may be a joint tortfeasor or otherwise additionally liable for "Covered Matters"; to recognize and further the important public policy of settling potential disputes amicably without resort to lengthy litigation, thus expediting the necessary cleanup of the Seymour site; and to protect the rights of the United States and the State from infringement by any person or entity not a party to this Consent Decree. If in any action brought by the United States or the State with respect to Covered Matters, or in any other action arising out of any claim brought by the United States or the State for Covered Matters any court of competent jurisdiction enters a final judgment requiring that one or more of the Companies must pay sums for Covered Matters in addition to those paid by each such Company pursuant to this Consent Decree, then the United States and/or the State will adjust the total of all such judgments obtained against any other person or entity so that no Company shall be required to pay all or any part of said sum. The Companies agree not to assert any causes of action, claims or demands against the United States or the State including the Hazardous Substances Response Fund with respect to matters arising out of or relating to the storage, handling, disposal, treatment, transportation or presence or actual or threatened release or discharge of any materials at the Seymour site under the statutes, ordinances or common law referred to in paragraph XII herein. However, the Companies reserve against the United States and the State (but not the Hazardous Substances Response Fund), the right to assert any claim, defense or cause of action arising out of or relating to actions taken by the United States or the state at the Seymour site during or after the performance of the Work. Each Company agrees that in any suit or claim for contribution brought against it for Covered Matters it will timely notify the United States and the State of the institution of any such suit or claim, and it will cooperate with the United States in any such suit or claim. The United States, the State, the local governments and the Companies, in entering into this Decree and in order to facilitate a mutually satisfactory and immediate cleanup of the Seymour site, do not admit, accept, or intend to acknowledge any liability or fault by any party hereto with respect to any matter arising out of or relating to the Seymour site. This express denial of any and all liability or fault attaches to any and all matters relating to or arising out of the Seymour site. When notification to the United States is required by the terms of this decree it shall be in writing addressed to: A) Office of Regional Counsel, Region V, United States Environmental Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604; and B) Chief, Environmental Enforcement Section, United States Department of Justice, Land and Natural Resources Division, Ninth and Pennsylvania Avenue, N.W., Washington, D.C. 20530. The United States, the State, the local governments and the Companies consent to this decree by their duly authorized representative on this day of , 1982. THE UNITED STATES OF AMERICA List of Companies Contributing to Trust Fund
|