IV.5. Approve Amended Consent Decree – Reilly Tar Site; Stadler•
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HOPKINS
June 11, 2019 Council Report 2019-065
Approve Amended Consent Decree — Reilly Tar Site
Proposed Action.
Staff recommends adoption of the following motion: Move that Council authorize
the Mavor to siqn an amended consent decree which continues certain City of
Hopkins rights as a Passive Municipal Partv reqardinq the Reillv Tar Site.
Overview.
The Reilly Tar site is located just north of Highway 7& near the area of Louisiana
Avenue in St. Louis Park. It is at this location where, from 1917 until 1972, a
subsidiary of Reilly Tar & Chemical Corporation operated a coal tar distillation
and wood product pressure treatment facility on its 80-acre plant site.
The two Kennedy & Graven memorandums, provided separately as they are
marked as "attorney-client privileged communications", contain a summary of the
Reilly Tar site historical activities, the resulting groundwater contamination,
various legal actions including the original 1986 Consent Decree (CD) and
associated remedial action plan (RAP) for mitigation of groundwater
contamination. This amended consent decree furthers certain rights for the City
of Hopkins. These rights include: the right to review and comment on future
reporting by the City of St. Louis Park to the EPA on their remedial actions, the
right to sue only in the event of a material impact to the City of Hopkins caused
by St. Louis Park failing to comply with its actions required under the Amended
CD and amended RAP. The City of Hopkins City Attorneys have negotiated the
terms of the proposed amended CD with the Attorney for St. Louis Park. Staff
recommends approval.
Supporting Information.
• Proposed Amended Consent Decree
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Steven J. Stadler
Public Works Director
Financial Impact: �Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.):
Notes:
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
and )
)
STATE OF MINNESOTA, by its Attorney General )
Hubert H. Humphrey, III, its bepartment of Health, )
and its Pollution Control Agency, )
)
Plaintiff-Intervenor, )
)
vs. )
)
REILLY TAR & CHEMICAL CORPORATION; )
HOUSING AND REDEVELOPMENT )
AUTHORITY OF ST. LOUIS PARK; OAK PARK )
VILLAGE ASSOCIATES; RUSTIC OAKS )
CONDOMINIUM INC.; and PHILLIP' S )
1NVESTMENT CO., )
)
Defendants, )
)
and )
)
CITY OF ST. LOUIS PARK, )
)
vs. )
)
REILLY TAR & CHEMICAL CORPORATION, )
)
Defendant, )
)
and )
)
CITY OF HOPKINS, )
)
Plaintiff-Intervenor, )
)
vs. )
)
REILLY TAR & CHEMICAL CORPORATION, )
Civil No. 4-80-469
May 20, 2019 Draft
AMENDED CONSENT DECREE
Defendant,
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XXIII.
XXIV.
XXV.
XXVI.
XXVII.
TABLE OF CONTENTS
BACKGROUND.........................................................................................................................1
JLJRISDICTION..........................................................................................................................4
PARTIESBOUND .....................................................................................................................4
DEFINITIONS............................................................................................................................4
GENERAI� PROVISIONS ..........................................................................................................8
PERFORMANCE OF THE WORK ...........................................................................................9
PROPERTYREQUIREMENTS ...............................................................................................14
FINANCIALASSURANCE .....................................................................................................16
PAYMENTS FOR RESPONSE COSTS ..................................................................................19
DISBURSEMENT OF SPECIAL ACCOUNT FUNDS ...........................................................21
INDEMNIF'ICATION AND INSURANCE ..............................................................................23
FORCEMAJEURE ...................................................................................................................25
DISPUTERESOLUTION ........................................................................................................26
STIPULATEDPENALTIES ....................................................................................................28
COVENANTS BY THE UNITED STATES AND THE STATE ............................................31
COVENANTS BY THE CITY .................................................................................................33
EFFECT OF SETTLEMENT; CONTRIBUTION ....................................................................35
ACCESSTO INFORMATION .................................................................................................36
RETENTION OF RECORDS ...................................................................................................37
NOTICESAND SUBMISSIONS .............................................................................................38
RETENTION OF JURISDICTION ..........................................................................................40
APPENDICES...........................................................................................................................40
MODIFICATION......................................................................................................................40
DISMISSAL OF CERTAIN PARTIES ....................................................................................40
LODGING AND OPPORTiTNITY FOR PUBLIC COMMENT .............................................41
SIGNATORIES/SERVICE .......................................................................................................41
FINALJUDGMENT .................................................................................................................41
iii
I. BACKGROUND
A. From 1917 until 1972, Defendant Reilly Tar & Chemical Corporation ("Reilly
Tar") was engaged in the business of coal tar distillation and pressure treatment of wood
products at its plant site located at 7200 Walker Street, St. Louis Park, Hennepin County,
Minnesota ("the Site").
B. On or about October 2, 1970, the State of Minnesota ("the State"), through its
Pollution Control Agency ("MPCA"), and the City of St. Louis Park ("the City"), filed a
complaint in the State of Minnesota, Hennepin County District Court, alleging violations by
Reilly Tar of state and municipal pollution control laws and regulations. State of Minnesota bv
the Minnesota Pollution Control A encv, and the City of St. Louis Park v. Reill�
Chemical Corporation, Hennepin County District Court, Civil File No. 670767 ("Hennepin
County Lawsuit").
C. On April 14, 1972, the City agreed to purchase the Site from Reilly Tar. The
details regarding the conveyance of the Site to the City, dismissal of the City's claims in the
Hennepin County Lawsuit, and conveyances of portions of the Site to Oak Park Village
Associates, Rustic Oaks Condominium, Inc., and Philip's Investment Co. are set forth in the
September 4, 1986 Consent Decree ("1986 Consent Decree") in this matter.
D. In April 1978, the State moved to amend its complaint in the Hennepin County
Lawsuit, alleging that polycyclic aromatic hydrocarbons ("PAH") contained in Reilly Tar's coal
tar and creosote wastes had entered the ground water beneath the Site and that their further
migration threatened to contaminate aquifers relied on for public water supply. At the same time,
the City moved to intervene as a plaintiff. The motions were granted and interlocutory review
was denied by the Minnesota Supreme Court. Reilly Tar subsequently tendered defense of the
action to the City and counterclaimed against the City, asserting that the City was responsible for
addressing the issue pursuant to the hold harmless agreement made at the time of its purchase of
the Site.
E. On or about September 4, 1980, the United States commenced this action by
filing a complaint under Section 7003 of the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. § 6973, alleging, inter alia, the existence of an imminent and substantial
endangerment to health and the environment due to the handling, treatment, storage,
transportation, disposal, and presence of hazardous waste at the Site. On or about October 15,
1980, the State (through its then attorney general, MPCA, and the Department of Health) and the
City were ganted leave to intervene, joining in the RCRA Section 7003 claim and asserting
additional claims under Minnesota law. On or about June 16, 1981, the City of Hopkins
("Hopkins") was likewise granted leave to intervene.
F. On or about September 9, 1981, the United States filed an amended complaint
alleging, in addition to the RCRA Section 7003 claim, �laims under Sections 106 and 107 of the
Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42
U.S.C. §§ 9606 and 9607.
G. On or about May 27, 1981, the State filed an amended complaint asserting claims
under RCRA Section 7003, 42 U.S.C. § 6973, CERCLA Section 107, 42 U.S.C. § 9607, Minn.
Stat §§ 115.061, 115.07, 115.071, state rules, and Minnesota common law.
H. On or about August 31, 1981 and October 16, 1981, respectively, the City and
Hopkins filed amended complaints alleging, inter alia, claims under RCRA Section 7003, 42
U.S.C. § 6973, CERCLA Section 107, 42 U.S.C. § 9607, Minn. Stat. Chapter 116B, and
Minnesota common law.
I. On or about April 5, 1985, the Court granted the State's motion for leave to file a
second amended complaint, adding claims under the Minnesota Environmental Response and
Liability Act ("MERLA"), Minn. Stat. Ch. 115B. The State subsequently filed such a second
amended complaint. Pursuant to stipulations, the City and Hopkins later also filed second
amended complaints, each of which added MERLA claims.
J. In its answers to the various complaints referenced above, Reilly Tar denied
liability, raised several affirmative defenses, and asserted a counterclaim against the City.
Various other parties asserted cross-claims, including a cross-claim by the City against the State,
a cross-claim by Oak Park Village Associates against the Housing and Redevelopment Authority
of St. Louis Park ("HRA") and a cross-claim by Philip's Investment Co. against Reilly Tar.
Although the United States chose not to assert a cross-claim against the City at that time, the City
was a potentially responsible party as the current owner of the Site.
K. Pursuant to CERCLA Section 105, 42 U.S.C. § 9605, the United States
Environmental Protection Agency (`BPA") placed the Site on the National Priorities List
("NPL") in 1983. In 1984, EPA entered a Record of Decision ("ROD") selecting an initial
remedy to protect the drinking water in the City.
L. The United States, the State, the City, Hopkins, Reilly Tar, HRA, Oak Park
Village Associates, and Philip's Investment Co. desired to reach a mutually satisfactory
settlement in this action.
M. It was deemed to be in the public interest, the interest of the parties, and the
interest of judicial economy for this case to be resolved without protracted litigation.
N. The Court signed and entered the parties' proposed consent decree on
September 4, 1986. The 1986 Consent Decree incorporated, as Exhibit A, a Remedial Action
Plan ("RAP") created to implement the selected remedy. The 1986 Consent Decree also
incorporated, as Exhibit B, an Agreement between the City and Reilly Tar allocating
responsibility for the performance of, and payment of the costs associated with, the remedial
actions at the Site.
O. In 1986, 1990, 1992, and 1995, EPA and the State approved four additional RODs
to select remedies for the Site consistent with the 1986 Consent Decree and incorporated RAP. In
1997, EPA and the State modified the 1995 ROD in an Explanation of Significant Differences.
P. The United States, the State, St. Louis Park, Hopkins, Reilly Tar, HRA, Oak Park
Village Associates, and Philip's Investment Co. desire to update and amend the 1986 Consent
Decree.
2
Q. Reilly Tar & Chemical Corporation, later known as Reilly Industries, merged
with Rutherford Chemical Co. in 2006 to form Vertellus Specialties Inc. (n/k/a VSI Liquidating
Inc.) ("Vertellus"). On May 31, 2016, Vertellus filed a petition with the U.S. Bankruptcy Court
for the District of Delaware under Chapter 11 of the United States Bankruptcy Code (the
"Vertellus Bankruptcy Case"). On February 24, 2017 the Bankruptcy Court entered an Order
Confirming the Debtors' Modified First Amended Plan of Liquidation under Chapter 11 of the
Bankruptcy Code ("Liquidation Plan") which, among other things, liquidated and dissolved
Vertellus and formed VSI Liquidation Trust in accordance with the terms of the Liquidation
Plan.
R. In light of the Liquidation Plan, the parties to the 1986 Consent Decree desire to
dismiss all claims, if any, by or against Reilly Tar for which final judgment has not been entered,
and for Reilly Tar and its successors to no longer proceed as a party to the Consent Decree.
S. All parties to the 1986 Consent Decree agree that it no longer is necessary for the
Minnesota Department of Health, Hopkins, HRA, Oak Park Village Associates, and Philip's
Investment Co. to remain active parties to this action or to the 1986 Consent Decree.
Accordingly, the parties to the 1986 Consent Decree desire to dismiss all counter-claims, if any,
relating to the Minnesota Department of Health for which judgrnent has not been entered and the
Minnesota Department of Health shall no longer proceed as a party to the 1986 Consent Decree.
HRA, Oak Park Village, and Philip's Investment Co. (the "Passive Parties") shall continue to
proceed as parties to the 1986 Consent Decree, as amended herein, but only to the extent
required by their property access and non-interference obligations as set forth in Section VII
(Property Requirements). Hopkins (the "Passive Municipal Party") shall continue to proceed as a
party for the purpose of preserving any rights and/or claims it may have as a party to the 1986
Consent Decree and to receive notice and the opportunity to comment as provided under Section
VI of this Amended Consent Decree.
T. The United States, the State, and the City, as the remaining active parties to this
Consent Decree (the "Parties"), update and amend the 1986 Consent Decree ("Amended CD")
and the incorporated RAP to address: (1) changes in the understanding of the toxicology of the
relevant contaminants as reflected in the new health-based criteria; (2) modifications to the
conceptual site model; (3) continuing implementation of the remedy; and (4) the status of the
Parties.
U. Based on the information presently available to EPA and the State, EPA and the
State believe that the Work will be properly and promptly conducted by the City if conducted in
accordance with this Amended CD and its appendices.
V. Solely for the purposes of CERCLA Section 113(j), 42 U.S.C. § 9613(j), the
remedy set forth in the ROD and the Work to be performed by the City shall constitute a
response action taken or ordered by the President for which judicial review shall be limited to the
administrative record.
W. The Parties recognize, and the Court by entering this Amended CD finds, that this
Amended CD has been negotiated by the Parties in good faith and implementation of this
Amended CD will expedite the cleanup of the Site and will avoid prolonged and complicated
litigation between the Parties, and that this Amended CD is fair, reasonable, and in the public
interest.
3
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II. JURISDICTION
1. This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. §§ 1331, 1367, and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also
has personal jurisdiction over the City. Solely for the purposes of this Amended CD and the
underlying complaint, the City waives all objections and defenses that it may have to jurisdiction
of the Court or to venue in this District. The City shall not challenge the terms of this Amended
CD or this Court's jurisdiction to enter and enforce this Amended CD.
III. PARTIES BOUND
2. This Amended CD is binding upon the United States and the State and upon the
City and the Passive Parties and the Passive Municipal Party and their successors and assigns.
Any change in ownership or corporate or other legal status of the City, the Passive Parties, or the
Passive Municipal Party including, but not limited to, any transfer of assets or real or personal
property, shall in no way alter the City's, the Passive Parties', or the Passive Municipal Party's
responsibilities under this Amended CD.
3. The City shall provide a copy of this Amended CD to each contractor hired to
perform the Work and to each person representing the City with respect to the Site or the Work,
and shall condition all contracts entered into hereunder upon performance of the Work in
conformity with the terms of this Amended CD. The City or its contractors shall provide written
notice of the Amended CD to all subcontractors hired to perform any portion of the Work. The
City shall nonetheless be responsible for ensuring that its contractors and subcontractors perform
the Work in accordance with the terms of this Amended CD. With regard to the activities
undertaken pursuant to this Amended CD, each contractor and subcontractor shall be deemed to
be in a contractual relationship with the City within the meaning of CERCLA Section 107(b)(3),
42 U.S.C. § 9607(b)(3).
IV. DEFINITIONS
4. Unless otherwise expressly provided in this Amended CD, terms used in this
Amended CD that are defined in CERCLA or in regulations promulgated under CERCLA shall
have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed
below are used in this Amended CD or its appendices, the following definitions shall apply
solely for purposes of this Amended CD:
"Affected Property" shall mean all real property at the Site and any other real property
where EPA determines, at any time, that access, land, water, or other resource use restrictions,
and/or Institutional Controls are needed to implement the Remedial Action, including, but not
limited to, the Site.
"Amended Consent Decree" or "Amended CD" shall mean this consent decree and all
appendices attached hereto (listed in Section XXIII). In the event of conflict between this
Amended CD and any appendix, this Amended CD shall control.
4
"Amended Remedial Action Plan" or "Amended RAP" shall mean the document
describing the activities to be undertaken by EPA, the State, and the City to implement the
Remedial Action and ongoing O&M of the remedy, attached hereto as Appendix A.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §§ 9601-9675.
"Chemicals of Interest" or "COI" shall mean site-related polycyclic aromatic
hydrocarbons ("PAH") and other site-related contaminants identified in the Amended RAP.
"City" shall mean the City of St. Louis Park, a municipal corporation organized and
existing under the laws of the State of Minnesota.
"City's Affected Property" shall mean Affected Property owned or controlled by the
City.
"Day" or "day" shall mean a calendar day. In computing any period of time under this
Amended CD, where the last day would fall on a Saturday, Sunday, or federal or State holiday,
the period shall run until the close of business of the next working day.
"DOJ" shall mean the United States Department of Justice and its successor deparhnents,
agencies, or instrumentalities.
"Effective Date" shall mean the date upon which the approval of this Amended CD is
recorded on the Court's docket.
"EPA" shall mean the United States Environmental Protection Agency and its successor
departments, agencies, or instrumentalities.
"EPA Hazardous Substance Superfund" shall mean the Hazardous Substance Superfund
established by the Internal Revenue Code, 26 U.S.C. § 9507.
"Future Oversight Costs" shall mean that portion of Future Response Costs that EPA
incurs in monitoring and supervising the City's performance of the Work to determine whether
such performance is consistent with the requirements of this Amended CD, including costs
incurred in reviewing deliverables submitted pursuant to this Amended CD, as well as costs
incurred in overseeing implementation of the Work; however, Future Oversight Costs do not
include, inter alia: the costs incurred by the United States pursuant to Paragraph 15
(Emergencies and Releases), Section VII (Property Requirements), and Paragra}�h 28 (Access to
Financial Assurance), or the costs incurred by the United States in enforcing this Amended CD,
including all costs incurred pursuant to Section XIII (Dispute Resolution), and all litigation costs.
"Future Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States incurs in reviewing or developing deliverables submitted
pursuant to this Amended CD, in overseeing implementation of the Work, or otherwise
impiementing, overseeing, or enforcing this Amended CD, including, but not limited to, payroil
costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant to Paragraphs 15
(Emergencies and Releases) and 28 (Access to Financial Assurance), and Section VII (Property
Requirements) (including the cost of attorney time and any monies paid to secure or enforce
access or land, water, or other resource use restrictions and/or to secure, implement, monitor,
maintain, or enforce Institutional Controls, including the amount of just compensation), and
Section XIII (Dispute Resolution), and all litigation costs.
"HRA" shall mean the Housing and Redevelopment Authority of St. Louis Park and any
successors.
"Institutional Controls" shall mean Proprietary Controls and state or local laws,
regulations, ordinances, zoning restrictions, or other governmental controls or notices that:
(a) limit land, water, or other resource use to minimize the potential for human exposure to
Waste Material at or in connection with the Site; (b) limit land, water, or other resource use to
implement, ensure non-interference with, or ensure the protectiveness of the RA; and/or
(c) provide information intended to modify or guide human behavior at or in connection with the
Site.
"Interest" shall mean interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund, compounded annually on October 1 of each year, in accordance
with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the
interest accrues. The rate of interest is subject to change on October 1 of each year. Rates are
available online at https://www.epa.�ov/su�erfund/superfund-interest-rates.
"Interest Earned" shall mean interest earned on amounts in the Reilly Tar & Chemical
SLP Site Disbursement Special Account, which shal� be computed monthly at a rate based on the
annual return on investments of the EPA Hazardous Substance Superfiind. The applicable rate of
interest shall be the rate in effect at the time the interest accrues.
"MERLA" shall mean the Minnesota Environmental Response and Liability Act, Minn.
Stat. §§ 11SB.O1-115B.20.
"MPCA" shall mean the Minnesota Pollution Control Agency and any successor
departments or agencies of the State.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA,
42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"Non-Party Owner" shall mean any person, other than the City or a Passive Party, that
owns or controls any Affected Property. The clause "Non-Party Owner's Affected Property"
means Affected Property owned or controlled by a Non-Party Owner.
"Operation and Maintenance" or "O&M" shall mean all activities required to operate,,
maintain, and monitor the effectiveness of the RA as specified in the RAP or any EPA-approved
O&M Plan.
"Paragaph" shall mean a portion of this Amended CD identified by an Arabic numeral or
an upper or lower case letter.
"Parties" shall mean the United States, the State of Minnesota, and the City of St. Louis
Park.
"Passive Parties" shall mean the Housing and Redevelopment Authority of St. Louis
Park, Oak Park Village Associates, Rustic Oaks Condominium, Inc., Philip's Investment Co.,
�
and any successors or assigns. The clause "Passive Party's Affected Property" means Affected
Property owned or controlled by a Passive Party.
"Passive Municipal Party" shall mean the City of Hopkins.
"Performance Standards" or "PS" shall mean the cleanup levels and other measures of
achievement of the remedial action objectives, as set forth in the RODs.
"Proprietary Controls" shall mean easements or covenants running with the land that
(a) limit land, water, or other resource use and/or provide access rights and (b) are created
pursuant to common law or statutory law by an instrument that is recorded in the appropriate
land records office.
"RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also known
as the Resource Conservation and Recovery Act).
"Records of Decision" or "RODs" shall mean the EPA Records of Decision and
Enforcement Decision Documents relating to the Site signed on June 6, 1984, May 30, 1986,
September 28, 1990, September 3, 1992, and June 30, 1995, by the Regional Administrator, EPA
Region 5, or his/her delegate, and all attachments thereto and the Explanation of Significant
Differences signed on March 26, 1997.
"Reilly Tar & Chemical SLP Site Disbursement Special Account" shall mean the special
account, within the EPA Hazardous Substance Superfund, established for the Site by EPA
pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3), and Paragaph 35 (Creation
of Reilly Tar & Chemical SLP Site Disbursement Special Account).
"Remedial Action" or "RA" shall mean the remedial action selected in the RODs.
"Section" shall mean a portion of this Amended CD identified by a Roman numeral.
"Site" shall mean the Reilly Tar & Chemical Corporation/St. Louis Park Plant Superfund
Site, encompassing approximately 80 acres, located in St. Louis Park, Hennepin County,
Minnesota, and depicted generally on the map attached as Appendix B. The Site is bounded by
the terminus of Pennsylvania Avenue south of 31 st Street on the west; the intersection of
Louisiana Avenue and 32nd Street to Gorham Street, Gorham Street from Louisiana Avenue to
2nd Street NW from Gorham Street to Republic Avenue, Republic Avenue from 2nd Street NE
to 1 st Street NW, and 1 st Street NW from Republic Avenue to Walker Street on the east; and
Walker Street on the South. The Site consists of Lot 1, Blocks 1-10; all in Oak Park Village
according to the plat thereof on file in the office of the County Recorder of Hennepin County,
Minnesota.
"State" shall mean the State of Minnesota, including MPCA.
"Supervising Contractor" shall mean the principal contractor retained by the City to
supervise and direct the implementation of the Work under this Amended CD.
"Transfer" shall mean to sell, assign, convey, lease, mortgage, or grant a security interest
in, or where used as a noun, a sale, assignment, conveyance, or other disposition of any interest
by operation of law or otherwise.
�
"United States" shall mean the United States of America and each department, agency,
and instrumentality of the United States, including EPA.
"Waste Material" shall mean (1) any "hazardous substance" under CERCLA
Section 101(14), 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under CERCLA
Section 101(33), 42 U.S.C. § 9601(33); (3) any "solid waste" under RCRA Section 1004(27),
42 U.S.C. § 6903(27); and (4) any "hazardous waste" under MERLA Section 115B.02, subd. 9,
Minn. Stat. § 115B.02, subd. 9.
"Work" shall mean all activities and obligations the City is required to perform under this
Amended CD and the Amended RAP, incorporated herein, except the activities required under
Section XX (Retention of Records).
V. GENERAL PROVISIONS
5. Objectives of the Parties: The objectives of the Parties in entering into this
Amended CD are to protect public health or welfare or the environment by the design and
implementation of long term response actions at the Site.
6. Commitments by the City. The City shall finance and perform the Work in
accordance with this Amended CD and all deliverables developed by the City and approved or
modified by EPA pursuant to this Amended CD.
7. Compliance with Applicable Law. Nothing in this Amended CD limits the
City's obligations to comply with the requirements of all applicable federal and state laws and
regulations. The City must also comply with all applicable or relevant and appropriate
requirements of all federal and state environmental laws as set forth in the RODs and the RAP.
The activities conducted pursuant to this Amended CD, if approved by EPA, shall be deemed to
be consistent with the NCP as provided in Section 300.700(c)(3)(ii) of the NCP.
8. Permits.
a. As provided in CERCLA Section 121(e), 42 U.S.C. § 9621(e), and NCP
Section 300.400(e), no permit shall be required for any portion of the Work conducted entirely
on-site (i.e., within the areal extent of contamination or in very close proximity to the
contamination and necessary for implementation of the Work). Where any portion of the Work
that is not on-site requires a federal or state permit or approval, the City shall submit timely and
complete applications and take all other actions necessary to obtain all such permits or approvals.
b. The City may seek relief under the provisions of Section XII (Force
Majeure) for any delay in the performance of the Work resulting from a failure to obtain, or a
delay in obtaining, any permit or approval referenced in Paragraph 8.a and required for the
Work, provided that it has submitted timely and complete applications and taken all other actions
necessary to obtain all such permits or approvals.
c. This Amended CD is not, and shall not be construed to be, a permit issued
pursuant to any federal or state statute or regulation.
:
VI. PERFORMANCE OF THE WORK
9. Coordination and Supervision.
a. Project Coordinators.
(1) The City's Project Coordinator must have sufficient technical
expertise to coordinate the VVork. The City's Project Coordinator may not be an attorney
representing the City in this matter and may not act as the Supervising Contractor. The
City's Project Coordinator may assign other representatives, including other contractors,
to assist in coordinating the Work.
(2) EPA shall designate and notify the City and the State of EPA's
Project Coordinator and Alternate Project Coordinator. EPA may designate other
representatives, which may include its employees, contractors, andlor consultants, to
oversee the Work. EPA's Project Coordinator/Alternate Project Coordinator will have the
same authority as a remedial project manager and/or an on-scene coordinator, as
described in the NCP. This includes the authority to halt the Work and/or to conduct or
direct any necessary response action when he or she determines that conditions at the Site
constitute an emergency or may present an immediate threat to public health or welfare or
the environment due to a release or threatened release of Waste Material.
(3) The State shall designate and notify EPA and the City of its Project
Coordinator and Alternate Proj ect Coordinator. The State may designate other
representatives, including its employees, contractors, and/or consultants to oversee the
Work. For any meetings and inspections in which EPA's Project Coordinator
participates, the State's Project Coordinator also may participate. The City shall notify
the State reasonably in advance of any such meetings or inspections.
(4) The City's Project Coordinator shall meet with EPA's and the
State's Project Coordinators at least annually.
b. Supervising Contractor. The City's proposed Supervising Contractor
must have sufficient technical expertise to supervise the Work and a quality assurance system
that complies with ANSI/ASQC E4-2004, Quality Systems for Environmental Data and
Technology Prob ams: Requirements with Guidance for Use (_American National Standard).
c. Procedures for DisapprovaUNotice to Proceed.
(1) The City shall designate, and notify EPA and the State, within 10
days after the Effective Date, of the names, contact information, and qualifications of the
City's proposed Project Coordinator and Supervising Contractor.
(2) EPA, after a reasonable opportunity for review and comment by
the State, shall issue notices of disapproval and/or authorizations to proceed regarding the
proposed Project Coordinator and Supervising Contractor, as applicable. If EPA issues a
notice of disapproval, the City shall, within 45 days, submit to EPA a list of supplemental
proposed Project Coordinators and/or Supervising Contractors, as applicable, including a
description of the qualifications of each. EPA shall issue a notice of disapproval or
authorization to proceed regarding each supplemental proposed coordinator and/or
�
contractor. The City may select any coordinator/contractor covered by an authorization to
proceed and shall, within 21 days, notify EPA and the State of the City's selection.
(3) The City may change its Project Coordinator and/or Supervising
Contractor, as applicable, by following the procedures of Paragraphs 9.c(1) and 9.c(2).
10. Performance of Work in Accordance with the Amended RAP. EPA, the State,
and the City have developed an Amended RAP to implement the remedies identified in the
RODs. The Amended RAP is attached hereto and incorporated herein by reference. The City
shall perform the Work as specified in the Amended RAP and all EPA-approved, conditionally-
approved, or modified deliverables under the Amended RAP.
11. Approval of Deliverables
a. Initial Submissions
(1) After review of any deliverable that is required to be submitted for
EPA approval under the Amended CD or the Amended RAP, EPA shall: (i) approve, in
whole or in part, the submission; (ii) approve the submission upon specified conditions;
(iii) disapprove, in whole or in part, the submission; or (iv) any combination of the
foregoing.
(2) EPA also may modify the initial submission to cure deficiencies in
the submission i£ (i) EPA determines that disapproving the submission and awaiting a
resubmission would cause substantial disruption to the Work; or (ii) previous
submission(s) have been disapproved due to material defects and the deficiencies in the
initial submission under consideration indicate a bad faith lack of effort to submit an
acceptable deliverable.
b. Resubmissions. Upon receipt of a notice of disapproval under
Paragraph l l.a (Initial Submissions), or if required by a notice of approval upon specified
conditions under Paragraph l l.a, the City shall, within 21 days or such longer time as specified
by EPA in such notice, correct the deficiencies and resubmit the deliverable for approval. After
review of the resubmitted deliverable, EPA may: (1) approve, in whole or in part, the
resubmission; (2) approve the resubmission upon specified conditions; (3) modify the
resubmission; (4) disapprove, in whole or in part, the resubmission, requiring the City to correct
the deficiencies; or (5) any combination of the foregoing.
c. Implementation. Upon approval, approval upon conditions, or
modification by EPA under Paragraph 11.a (Initial Submissions) or Paragraph l l.b
(Resubmissions), of any deliverable, or any portion thereof: (1) such deliverable, or portion
thereof, will be incorporated into and enforceable under the Amended CD; and (2) the City shall
take any action required by such deliverable, or portion thereof. The implementation of any non-
deficient portion of a deliverable submitted or resubmitted under Paragraph 1 l.a or
Paragraph l l.b does not relieve the City of any liability for stipulated penalties under
Section XIV (Stipulated Penalties) of the Amended CD.
d. Certification. All deliverables must be signed by the City's Project
Coordinator, or other responsible official of the City, and must contain the following statement:
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I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system designed
to assure that qualified personnel properly gather and evaluate the information
submitted. Based on my inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief, true, accurate,
and complete. I have no personal knowledge that the information submitted is
other than true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fine and
imprisonment for knowing violations
12. Certification of RA Completion
a. RA Completion Inspection. The RA is "Complete" for purposes of this
Paragraph 12 when it has been fully performed and the Perfor;nance Standards have been
achieved. The City shall schedule an inspection for the purpose of obtaining EPA's Certification
of RA Completion. The inspection must be attended by the City and EPA and/or their
representatives.
b. RA Report/Monitoring Report. Following the inspection, the City shall
submit a RA Report/Monitoring Report to EPA requesting EPA's Certification of RA
Completion. The report must: (1) include certifications by a registered professional engineer or
registered professional geologist (as appropriate for the report) and by the City's Project
Coordinator that the RA is complete; (2) be prepared in accordance with Chapter 2(Remedial
Action Completion) of EPA's Close Out Procedures for NPL Sites guidance (May 2011), as
supplemented by Guidance for Management o,f Superfund Remedies in Post Construction,
OLEM 9200.3-105 (Feb. 2017); (3) contain monitoring data to demonstrate that Performance
Standards have been achieved; and (4) be certified in accordance with Paragraph 11.d
(Certification). A copy of this report shall be provided to the Passive Municipal Party whcih
must submit any comments to the City, the State, and EPA within 21 days of receipt.
c. If EPA concludes that the RA is not Complete, EPA shall so notify the
City. EPA's notice must include a description of any deficiencies. EPA's notice may include a
schedule for addressing such deficiencies or may require the City to submit a schedule for EPA
approval. The City shall perform all activities described in the notice in accordance with the
schedule.
d. If EPA concludes, based on the initial or any subsequent RA
Report/Monitoring Report requesting Certification of RA Completion, that the RA is Complete,
EPA shall so certify to the City. This certification will constitute the Certification of RA
Completion for purposes of this Amended CD. Certification of RA Completion will not affect
the City's remaining obligations under the Amended CD.
13. Certification of Work Completion
a. Work Compietion Inspection. The City shall schedule an inspection for
the purpose of obtaining EPA's Certification of Work Completion. The inspection must be
attended by the City and EPA and/or their representatives.
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b. Work Completion Report. Following the inspection, the City shall submit
a report to EPA requesting EPA's Certification of Work Completion. The report must:
(1) include certifications by a registered professional engineer or registered professional
geologist (as appropriate for the report) and by the City's Project Coordinator that the Work,
including all O&M activities, is complete; and (2) be certified in accordance with Paragraph l l.d
(Certification). If the RA Report/Monitoring Report submitted under Paragraph 12 includes all
elements required under this Paragraph 13, then the RA Report/Monitoring Report suffices to
satisfy all requirements under this Paragraph 13. A copy of the report shall be provided to the
Passive Municipal Party which must submit any comments to the City and EPA within 21 days
of receipt.
c. If EPA concludes that the Work is not complete, EPA shall so notify the
City. EPA's notice must include a description of the activities that the City must perform to
complete the Work. EPA's notice must include specifications and a schedule for such activities
or must require the City to submit specifications and a schedule for EPA approval. The City shall
perform all activities described in the notice or in the EPA-approved specifications and schedule.
d. If EPA concludes, based on the initial or any subsequent report requesting
Certification of Work Completion, that the Work is complete, EPA shall so certify in writing to
the City. Issuance of the Certification of Work Completion does not affect the following
continuing obligations: (1) activities under the Periodic Review Support Plan; (2) obligations
under Sections VII (Property Requirements), XIX (Access to Information), and XX (Retention of
Records) of the Amended CD; (3) Institutional Controls obligations as provided in the ICIAP;
and (4) reimbursement of EPA's Future Response Costs under Section IX (Payments for
Response Costs) of the Amended CD.
14. State Participation
a. Copies. The City shall, at any time it sends a deliverable to EPA, send a
copy of such deliverable to the State. EPA shall, at any time it sends a notice, authorization,
approval, disapproval, or certification to the City, send a copy of such document to the State.
b. Review and Comment. The State will have a reasonable opportunity for
review and comment prior to:
(1) Any EPA approval or disapproval under Paragraph 11 (Approval
of Deliverables) of any deliverables that are required to be submitted for EPA approval;
and
(2) Any approval or disapproval of the Certification of RA
Completion under Paragraph 12, and any disapproval of or Certification of Work
Completion under Paragraph 13.
15. Emergencies and Releases.
a. If any event occurs during performance of the Work that causes or
threatens to cause a release of Waste Material on, at, or from the Site and that either constitutes
an emergency situation or that may present an immediate threat to public health or welfare or the
environment, the City shall: (1) immediately take all appropriate action to prevent, abate, or
minimize such release or threat of release; (2) immediately notify the authorized EPA officer (as
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specified in Paragraph 15.b) orally; and (3) take such actions in consultation with the authorized
EPA officer and in accordance with all applicable provisions of the Health and Safety Plan, the
Emergency Response Plan, and any other deliverable approved by EPA under the Amended CD
or Amended RAP.
b. Upon the occurrence of any event during performance of the Work that the
City is required to report pursuant to CERCLA Section 103, 42 U.S.C. § 9603, or Section 304 of
the Emergency Planning and Community Right-to-know Act (EPCRA), 42 U.S.C. § 11004, the
City shall immediately notify the authorized EPA officer orally. The "authorized EPA officer"
for purposes of immediate oral notifications and consultations under this Paragaph 15 is the
EPA Project Coordinator, the EPA Alternate Project Coordinator (if the EPA Project
Coordinator is unavailable), or the EPA Emergency Response Unit, Region 5(if neither EPA
Project Coordinator is available).
c. For any event covered by Paragraphs 15.a andl5.b, the City shall:
(1) within 14 days after the onset of such event, submit a report to EPA describing the actions or
events that occurred and the measures taken, and to be taken, in response thereto; and (2) within
30 days after the conclusion of such event, submit a report to EPA describing all actions taken in
response to such event.
d. Subject to Section XV (Covenants by United States and the State), nothing
in this Amended CD limits any authority of the United States or the State: (a) to take all
appropriate action to protect human health and the environment or to prevent, abate, respond to,
or minimize an actual or threatened release of Waste Material on, at, or from the Site, or (b) to
direct or order such action, or seek an order from the Court, to protect human health and the
environment or to prevent, abate, respond to, or minimize an actual or threatened release of
Waste Material on, at, or from the Site. If, due to the City's failure to take appropriate response
action under Paragraph 15.a, EPA or, as appropriate, the State takes such action instead, the City
shall reimburse EPA and the State under Section IX (Payments for Response Costs) for all costs
of the response action.
16. Modification of the Amended RAP or Related Deliverables.
a. If EPA, following consultation with the State, determines that it is
necessary to modify the work specified in the Amended RAP and/or in deliverables developed
under the Amended RAP in order to achieve and/or maintain the Performance Standards or to
carry out and maintain the effectiveness of the RA, and such modification is consistent with the
Remedial Action Objectives set forth in Section 1.4 of the Amended RAP, then EPA may notify
the City of such modification. Notice of the proposed modification shall be provided to the
Passive Municipal Party which must submit any comments to EPA within 21 days of receipt. If
the City objects to the modification it may, within 30 days after EPA's notification, seek dispute
resolution under Section XIII.
b. If the City determines that it is necessary to modify the work specified in
the Amended RAP and/or in deliverables developed under the Amended RAP in order to achieve
and/or maintain the Performance Standards or to carry out and maintain the effectiveness of the
RA, and such modification is consistent with the Remedial Action Objectives set forth in
Section 1.4 of the Amended RAP, then the City may submit the proposed modification to EPA
for approval, with a copy to the State. Notice of the proposed modification shall be provided to
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the Passive Municipal Party which must submit any comments to EPA within 21 days of receipt.
If EPA rejects the proposed modification, the City may, within 30 days after notification of such
rejection, seek dispute resolution under Section XIII.
c. The Amended RAP and/or related work plans shall be modified: (1) in
accordance with the modification issued by EPA; or (2) if the City invokes dispute resolution, in
accordance with the final resolution of the dispute. The modification shall be incorporated into
and enforceable under this Amended CD, and the City shall implement all work required of it by
such modification. The City shall incorporate the modification into the deliverable required
under the Amended RAP, as appropriate.
d. Nothing in this Paragraph shall be construed to limit EPA's authority to
require performance of further response actions as otherwise provided in this Amended CD.
17. Nothing in this Amended CD, the Amended RAP, or any deliverable required
under the Amended RAP constitutes a warranty or representation of any kind by EPA and the
State that compliance with the work requirements set forth in the Amended RAP or related
deliverable will achieve the Performance Standards.
VII. PROPERTY REQUIREMENTS
18. Agreements Regarding Access and Non-Interference. The City shall, with
respect to any Non-Party Owner's Affected Property, use best efforts to secure from such Non-
Party Owner an agreement, enforceable by the United States and the State, providing that such
Non-Party Owner shall: (i) provide EPA, the State, and the City, and their representatives,
contractors, and subcontractors with access at all reasonable times to such Affected Property to
conduct any activity regarding the Amended CD, including those listed in Paragraph 18.a
(Access Requirements); and (ii) refrain from using such Affected Property in any manner that
EPA determines will pose an unacceptable risk to human health or to the environment due to
exposure to Waste Material, or interfere with or adversely affect the implementation, integrity, or
protectiveness of the Remedial Action, including the restrictions listed in Paragraph 18.b
(Institutional Controls ). The City and the Passive Parties shall, with respect to the City's
Affected Property and the Passive Parties' Affected Property respectively, likewise comply with
the Access Requirements listed in Paragraph 18.a and the Institutional Controls listed in
Paragraph 18.b.
a. Access Requirements. Activities for which access is required regarding
the Affected Property include, but are not limited to, the following:
the State;
Site;
(1) Monitoring the Work;
(2) Verifying any data or information submitted to the United States or
(3) Conducting investigations regarding contamination at or near the
(4) Obtaining samples;
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(5) Assessing the need for, planning, or implementing additional
response actions at or near the Site or other Affected Property;
(6) Assessing implementation of quality assurance and quality control
practices as defined in the approved Quality Assurance Project Plan incorporated into the
Arnended RAP;
(7) Implementing the Work pursuant to the conditions set forth in
Paragraph 70 (Work Takeover);
(8) Inspecting and copying records, operating logs, contracts, or other
documents maintained or generated by the City or the Passive Parties or their agents,
consistent with Section XIX (Access to Information);
(9) Assessing the City's compliance with the Amended CD;
(10) Determining whether the Affected Property is being used in a
manner that is prohibited or restricted, or that may need to be prohibited or restricted
under the Amended CD; and
(11) Implementing, monitoring, maintaining, reporting on, and
enforcing any land, water, or other resource use restrictions and Institutional Controls.
b. Institutional Controls. The City shall prepare an Institutional Control
Implementation and Assurance Plan ("ICIAP") in accordance with the schedule in Section 9 of
the Amended RAP. The ICIAP shall be subject to approval and/or modification by EPA and the
State as pmvided in Paragraph 11 above.
19. The City shall not transfer Affected Property unless it has first secured EPA's
approval of, and the transferee's consent to, an agreement that: (i) is enforceable by the City,
EPA, and the State; and (ii) requires the transferee to provide access to and to refrain from using
the Affected Property to the same extent as is provided under Paragraph 18.a (Access
Requirements) and Paragraph 18.b {Institutional Controls).
20. A Passive Party shall not transfer Affected Property unless it has first secured the
transferee's consent to an agreement that: (i) is enforceable by the City, EPA, and the State; and
(ii) requires the transferee to provide access to and to refrain from using the Affected Property to
the sarn� extent as is pruvided under Paragraph 18.a (Access Requirements) and Paragraph 18.b
(Institutional Controls), and has provided EPA with a copy of such agreement at least 15 days
prior to the transfer.
21. Notice to Successors-in-Title. The City and the Passive Parties shall, prior to
entering into a contract to Transfer any of their Affected Property, or 60 days prior to
Transferring their Affected Property, whichever is earlier:
a. Notify the proposed transferee that EPA has selected a remedy regarding
the Site and that the United States District Court has entered an Amended CD requiring
implementation of such remedy (identifying the name and civil action number of this case and
the date the Amended CD was entered by the Court); and
15
b. Notify the City, EPA, and the State of the name and address of the
proposed transferee and provide the City, EPA, and the State with a copy of the notice that it
provided to the proposed transferee.
22. In the event of any Transfer of the Affected Property, unless the United States
otherwise consents in writing, the City shall continue to comply with its obligations under the
Amended CD, including its obligation to secure access and ensure compliance with any land,
water, or other resource use restrictions regarding the Affected Property, and to implement,
maintain, monitor, and report on Institutional Controls.
23. Notwithstanding any provision of the Amended CD, EPA and the State retain all
of their access authorities and rights, as well as all of their rights to require land, water, or other
resource use restrictions and Institutional Controls, including enforcement authorities related
thereto, under CERCLA, RCRA, and any other applicable statute or regulations.
VIII. FINANCIAL ASSURANCE
24. In order to ensure completion of the Work, the City shall secure financial
assurance, initially in the amount of $11.5 million ("Estimated Cost of the Work"), for the
benefit of EPA. The financial assurance must be one or more of the mechanisms listed below, in
a form substantially identical to the relevant sample documents available from the "Financial
Assurance" category on the Cleanup Enforcement Model Language and Sample Documents
Database at https://cfpub.epa.�ov/compliance/models/, and satisfactory to EPA. The City may
use multiple mechanisms if they are limited to surety bonds guaranteeing payment, letters of
credit, trust funds, and/or insurance policies.
a. A surety bond guaranteeing payrnent and/or performance of the Work that
is issued by a surety company among those listed as acceptable sureties on federal bonds as set
forth in Circular 570 of the U.S. Department of the Treasury;
b. An irrevocable letter of credit, payable to or at the direction of EPA, that is
issued by an entity that has the authority to issue letters of credit and whose letter-of-credit
operations are regulated and examined by a federal or state agency;
c. A trust fund established for the benefit of EPA that is administered by a
trustee that has the authority to act as a trustee and whose trust operations are regulated and
examined by a federal or state agency;
d. A policy of insurance that provides EPA with acceptable rights as a
beneficiary thereof and that is issued by an insurance carrier that has the authority to issue
insurance policies in the applicable jurisdiction(s) and whose insurance operations are regulated
and examined by a federal or state agency; or
e. A demonstration by the City that it meets the relevant financial test criteria
of 40 C.F.R. § 258.74( fl and reporting requirements of this Section for the sum of the Estimated
Cost of the Work and the amounts, if any, of other federal, state, or tribal environmental
obligations financially assured through the use of a financial test or guarantee, accompanied by a
standby funding commitment, which obligates the City to pay funds to�or at the direction of
EPA, up to the amount financially assured through the use of this demonstration, in the event of
a Work Takeover.
16
25. The City has selected, and EPA has found satisfactory, as an initial financial
assurance a demonstration by the City that it meets the relevant financial test criteria in the form
attached as Appendix C. Within 30 days after the Effective Date, the City shall secure all
executed and/or otherwise finalized mechanisms or other documents consistent with the form of
financial assurance attached as Appendix C and shall submit such mechanisms and documents to
the Regional Supervisory Accountant, to the United States, and to EPA and the State as specified
in Section XXI (Notices and Submissions).
26. If the City provides financial assurance by means of a demonstration under
Paragaph 24.e, the City shall also comply with the other relevant criteria and requirements of 40
C.F.R. § 258.74( fl and this Section, including, but not limited to: (a) the initial submission to
EPA of required documents from the City's chief financial officer and independent certified
public accountant no later than 30 days after the Effective Date; (b) the annual resubmission of
such documents within 180 days after the close of the City's fiscal year; and (c) the notification
of EPA no later than 30 days, in accordance with Paragraph 27, after the City determines that it
no longer satisfies the relevant financial test criteria and requirements set forth at 40 C.F.R.
§ 258.74(�(1). The City agrees that EPA may also, based on a belief that the City may no longer
meet the financial test requirements of Paragraph 24.e, require reports of financial condition at
any time from the City in addition to those specified in this Paragraph. For purposes of this
Section, references in 40 C.F.R. Part 258, Subpart G, to: (1) the terms "estimated total closure
and post-closure care cost" and "corrective action costs" include the Estimated Cost of the Work;
(2) the phrase "other environmental obligations" includes the sum of all environmental
obligations (including obligations under CERCLA, RCRA, and any other federal, state, or tribal
environmental obligation) guaranteed by the City in addition to the Estimated Cost of the Work
under this Amended CD; (3) the terms "owner" and "operator" include the City; and (4) the
terms "facility" and "hazardous waste management facility" include the Site.
27. The City shall diligently monitor the adequacy of the financial assuran�e. If the
City becomes aware of any information indicating that the financial assurance provided under
this Section is inadequate or otherwise no longer satisfies the requirements of this Section, the
City shall notify EPA of such information within 7 days. If EPA determines that the financia�
assurance provided under this Section is inadequate or otherwise no longer satisfies the
requirements of this Section, EPA will notify the City of such determination. The City shall,
within 30 days after notifying EPA or receiving notice from EPA under this Paragraph, secure
and submit to EPA for approval a proposal for a revised or alternative financial assurance
mechanism that satisfies the requirements of this Section. EPA may extend this deadline for such
time as is reasonably necessary for the City, in the exercise of due diligence, to secure and
submit to EPA a proposal for a revised or alternative financial assurance mechanism, not to
exceed 60 days. The City shall follow the procedures of Paragraph 29 (Modification of Financial
Assurance) in seeking approval of, and submitting documentation for, the revised or alternative
financial assurance mechanism. The City's inability to secure and submit to EPA financial
assurance in accflrdance with this Section shall in no way excuse performance of any other
requirements of this Amended CD, including, without limitation, the obligation of the City to
complete the Work in accordance with the terms of this Amended CD.
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28. Access to Financial Assurance.
a. If EPA issues a notice of implementation of a Work Takeover under
Paragaph 70.b, then, in accordance with any applicable financial assurance mechanism and/or
related standby funding commitment, EPA is entitled to: (1) the performance of the Work; and/or
(2) require that any funds guaranteed be paid in accordance with Paragraph 28.d.
b. If EPA is notified by the issuer of a financial assurance mechanism that it
intends to cancel such mechanism, and the City fails to provide an alternative financial assurance
mechanism in accordance with this Section at least 30 days prior to the cancellation date, the
funds guaranteed under such mechanism must be paid prior to cancellation in accordance with
Paragraph 28.d.
c. If, upon issuance of a notice of implementation of a Work Takeover under
Paragraph 70.b, either: (1) EPA is unable for any reason to promptly secure the resources
guaranteed under any applicable financial assurance mechanism and/or related standby funding
commitment, whether in cash or in kind, to continue and complete the Work; or (2) the financial
assurance is provided under Paragraph 24.e, then EPA may demand an amount, as determined by
EPA, sufficient to cover the cost of the remaining Work to be performed. The City shall, within
14 days of such demand, pay the amount demanded as directed by EPA.
d. Any amounts required to be paid under this Paragraph 28 shall be, as
directed by EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA or by
another person; or (ii) deposited into an interest-bearing account, established at a duly chartered
bank or trust company that is insured by the FDIC, in order to facilitate the completion of the
Work by another person. If payment is made to EPA, EPA may deposit the payment into the
EPA Hazardous Substance Superfund or into the Reilly Tar & Chemical Special Account within
the EPA Hazardous Substance Superfund to be retained and used to conduct or finance response
actions at or in connection with the Site, or to be transferred by EPA to the EPA Hazardous
Substance Superfund.
e. All EPA Work Takeover costs not paid under this Paragraph 28 must be
reimbursed as Future Response Costs under Section IX (Payments for Response Costs).
29. Modification of Amount, Form, or Terms of Financial Assurance. The City
may submit, on any anniversary of the Effective Date or at any other time agreed to by the
Parties, a request to reduce the amount, or change the form or terms, of the financial assurance
mechanism. Any such request must be submitted to EPA in accordance with Paragraph 25, and
must include an estimate of the cost of the remaining Work, an explanation of the bases for the
cost calculation, and a description of the proposed changes, if any, to the form or terms of the
financial assurance. EPA will notify the City of its decision to approve or disapprove a requested
reduction or change pursuant to this Paragraph. The City may reduce the amount of the financial
assurance mechanism only in accordance with: (a) EPA's approval; or (b) if there is a dispute,
the agreement, final administrative decision, or final judicial decision resolving such dispute
under Section XIII (Dispute Resolution). Any decision made by EPA on a request submitted
under this Paragraph to change the form or terms of a financial assurance mechanism shall be
made in EPA's sole and unreviewable discretion, and such decision shall not be subject to
challenge by the City pursuant to the dispute resolution provisions of this Amended CD or in any
other forum. Within 30 days after receipt of EPA's approval of, or the agreement or decision
:
resolving a dispute relating to, the requested modifications pursuant to this Paragraph, the City
shall submit to EPA documentation of the reduced, revised, or alternative financial assurance
mechanism in accordance with Paragraph 25.
30. Release, Cancellation, or Discontinuation of Financial Assurance. The City
may release, cancel, or discontinue any financial assurance provided under this Section only:
(a) if EPA issues a Certification of Work Completion under Paragraph 13 (Certification of Work
Completion) of the Amended RAP; (b) in accordance with EPA's approval of such release,
cancellation, or discontinuation; or (c) if there is a dispute regarding the release, cancellation or
discontinuance of any financial assurance, in accordance with the agreement, final administrative
decision, or final judicial decision resolving such dispute under Section XIII (Dispute
Resolution).
IX. PAYMENTS FOR RE5PONSE COSTS
31. Payments by the City for Future Response Costs. The City shall not be
responsible for EPA's Future Oversight Costs. The City shall pay to EPA all other Future
Response Costs not inconsistent with the NCP.
a. Periodic Bills. On a periodic basis, EPA will send the City a bill requiring
payment that includes an Itemized Cost Summary of Future Response Costs subject to
reimbursement under this Paragraph, which includes direct and indirect costs incurred by EPA,
its contractors, subcontractors, and DOJ. The City shall make all payments within 30 days after
the City's receipt of each bill requiring payment, except as otherwise provided in Paragaph 33,
in accordance with Paragraph 32.a (instructions for future response cost payments).
b. Deposit of Future Response Costs Payments. The total amount to be
paid by the City pursuant to Paragraph 31.a (Periodic Bills) shall be deposited by EPA in the
Reilly Tar & Chemic�l Site SLP Special Account to be retained and used to conduct or finance
response actions at or in connection with the Site, or to be transferred by EPA to the EPA
Hazardous Substance Superfund, provided, however, that EPA may deposit a Future Response
Costs payment directly into the EPA Hazardous Substance Superfund if, at the time the payment
is received, EPA estimates that the Reilly Tar & Chemical SLP Site Special Account baiance is
sufficient to address currently anticipated future response actions to be conducted or financed by
EPA at or in connection with the Site. Any decision by EPA to deposit a Future Response Costs
payment directly into the EPA Hazardous Substance Superfund for this reason shall not be
subject to challenge by the City pursuant to the dispute resolution provisions of this Amended
CD or in any other forum.
32. Payment Instructions for the City.
a. Future Response Costs Payments and Stipulated Penalties.
(1) For all payments subject to this Paragraph 32.a, the City shall
make such payment by Automated Clearinghouse (ACH) payment as follows:
19
500 Rivertech Court
Riverdale, Maryland 20737
Contact — John Schmid 202-874-7026 or REX, 1-866-234-5681
ABA = 051036706
Transaction Code 22 - checking
Environmental Protection Agency
Account 310006
CTX Format
(2) For all payments made under this Paragraph 32.a, the City must
include references to Site/Spill ID Number 0506 and DJ Number 90-7-1-21/2. At the time
of any payment required to be made in accordance with Paragraph 32.a, the City shall
send notices that payment has been made to the United States, EPA, and the EPA
Cincinnati Finance Center, all in accordance with Paragraph 94. All notices must include
references to the Site/Spill ID and DJ numbers.
33. Contesting Future Response Costs. The City may submit a Notice of Dispute,
initiating the procedures of Section XIII (Dispute Resolution), regarding any Future Response
Costs billed under Paragraph 31 (Payrnents by the City for Future Response Costs) if it
determines that EPA has made a mathematical error or included a cost item that is not within the
definition of Future Response Costs, or if it believes EPA incurred excess costs as a direct result
of an EPA action that was inconsistent with a specific provision or provisions of the NCP. Such
Notice of Dispute shall be submitted in writing within 30 days after receipt of the bill and must
be sent to the United States pursuant to Section XXI (Notices and Submissions). Such Notice of
Dispute shall specifically identify the contested Future Response Costs and the basis for
objection. If the City submits a Notice of Dispute, the City shall, within the 30-day period, also
as a requirement for initiating the dispute, (a) pay all uncontested Future Response Costs to the
United States, and (b) establish, in a duly chartered bank or trust company, an interest-bearing
escrow account that is insured by the Federal Deposit Insurance Corporation (FDIC), and remit
to that escrow account funds equivalent to the amount of the contested Future Response Costs.
The City shall send to the United States, as provided in Section XXI (Notices and Submissions),
a copy of the transmittal letter and check paying the uncontested Future Response Costs, and a
copy of the correspondence that establishes and funds the escrow account, including, but not
limited to, information containing the identity of the bank and bank account under which the
escrow account is established as well as a bank statement showing the initial balance of the
escrow account. If the United States prevails in the dispute, the City shall pay the sums due (with
accrued Interest) to the United States within 7 days after the resolution of the dispute. If the City
prevails concerning any aspect of the contested costs, the City shall pay that portion of the costs
(plus associated accrued Interest) for which it did not prevail to the United States within 7 days
after the resolution of the dispute. The City shall be disbursed any balance of the escrow account.
All payments to the United States under this Paragraph shall be made in accordance with
Paragraph 32.a (instructions for future response cost payments). The dispute resolution
procedures set forth in this Paragraph in conjunction with the procedures set forth in Section XIII
(Dispute Resolution) shall be the exclusive mechanisms for resolving disputes regarding the
City's obligation to reimburse the United States for its Future Response Costs.
34. Interest. In the event that any payment for Future Response Costs required under
this Section is not made by the date required, the City shall pay Interest on the unpaid balance.
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The Interest on Future Response Costs shall begin to accrue on the date of the bill. The Interest
shall accrue through the date of the City's payment. Payments of Interest made under this
Paragaph shall be in addition to such other remedies or sanctions available to EPA and the State
by virtue of the City's failure to make timely payments under this Section including, but not
limited to, payrnent of stipulated penalties pursuant to ¶ 57 (Stipulated Penalty Amounts —
Work).
X. DISBURSEMENT OF SPECIAL ACCOUNT FUNDS
35. Creation of Reilly Tar & Chemical SLP Site Disbursement Special Account
and Agreement to Disburse Funds to the City. If EPA receives an allocation of funds from the
Vertellus Environmental Response Trust relating to the Site, EPA may choose to establish a
Reilly Tar & Chemical SLP Site Disbursement Special Account and fund such account with all
or a portion of the allocation received. The extent of any such funding shall be at EPA's
discretion. EPA shall inform the City and the State of the establishment of a Reilly Tar &
Chemical SLP Site Disbursement Special Account within 30 days of it being funded. Subject to
the terms and conditions set forth in this Section, EPA agrees to make the funds in any Reilly Tar
& Chemical SLP Site Disbursement Special Account, including Interest Earned on the funds in
any Reilly Tar & Chemical SLP Site Disbursement Special Account, available for disbursement
to the City as partial reimbursement for performance of the Work. EPA shall disburse funds from
the Reilly Tar & Chemical SLP Site Disbursement Special Account to the City in accordance
with the procedures and milestones for phased disbursement set forth in this Section.
3b. Timing, Amount, and Method of Disbursing Funds From the Reilly Tar &
Chemical SLP Site Disbursement Special Account. Within 30 days after EPA's receipt of a
Cost Summary and Certification, as defined by Paragraph 37.b, or if EPA has requested
additional information under Paragraph 37.b or a revised Cost Summary and Certification under
Paragraph 37.c, within 30 days after receipt of the additional inforrnation or revised Cost
Summary and Certification, and subject to the conditions set forth in this Section, EPA shall
disburse funds from the Reilly Tar & Chemical SLP Site Disbursement Special Account to the
City in accordance with instructions provided by the City in its Cost Summary and Certification.
37. Requests for Disbursement of Special Account Funds.
a. Following notification of the establishment of a Reilly Tar & Chemical
SLP Site Disbursement Special Account, on an annual basis the City may submit to EPA a Cost
Summary and Certification, as defined in Paragraph 37.b, covering the Work performed up to the
date of the Cost Summary and Certification. The City shall not include in any submission costs
included in a previous Cost Summary and Certification if those costs have been previously
sought or reimbursed pursuant to Paragraph 36.
b. Each Cost Summary and Certification shall include a complete and
accurate written cost summary and certification of the necessary costs incurred and paid by the
City for the Work covered by the particular submission, excluding costs not eligible for
disbursement under Paragraph 38 (Costs Excluded from Disbursement), and the name and
address for payrnent or instructions for electronic funds transfer. Each Cost Summary and
Certification shall contain the following statement signed by the City's Chief Financial Officer:
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To the best of my knowledge, after thorough investigation and review of the City's
documentation of costs incurred and paid for Work performed pursuant to this Amended
CD through the date of this Cost Summary and Certification, I certify that the
information contained in or accompanying this submission is true, accurate, and
complete. I am aware that there are significant penalties for knowingly submitting false
information, including the possibility of fine and imprisonment.
The Chief Financial Officer shall also provide EPA a list of the documents that he or she
reviewed in support of the Cost Summary and Certification. Upon request by EPA, the City shall
submit to EPA any additional information that EPA deems necessary for its review and approval
of a Cost Summary and Certification.
c. If EPA finds that a Cost Summary and Certification includes a
mathematical error, costs excluded under Paragraph 38 (Costs Excluded from Disbursement),
costs that are inadequately documented, or costs submitted in a prior Cost Summary and
Certification, it will notify the City and provide it an opportunity to cure the deficiency by
submitting a revised Cost Summary and Certification. If the City fails to cure the deficiency
within 30 days after being notified of, and given the opportunity to cure, the deficiency, EPA
will recalculate the City's costs eligible for disbursement for that submission and disburse the
corrected amount to the City in accordance with the procedures in Paragraph 36 (Timing,
Amount, and Method of Disbursing Funds). The City may dispute EPA's recalculation under this
Paragraph pursuant to Section XIII (Dispute Resolution). In no event shall the City be disbursed
funds from the Reilly Tar & Chemical SLP Site Disbursement Special Account in excess of
amounts properly documented in a Cost Summary and Certification accepted or modified by
EPA.
38. Costs Excluded from Disbursement. The following costs are excluded from,
and shall not be sought by the City for, disbursement from the Reilly Tar & Chemical SLP Site
Disbursement Special Account: (a) response costs paid pursuant to Section IX (Payments for
Response Costs); (b) any other payments made by the City to the United States or the State
pursuant to this Amended CD, including, but not limited to, any Interest or stipulated penalties
paid pursuant to Section IX (Payments for Response Costs) or XIV (Stipulated Penalties);
(c) attorneys' fees and costs, except for reasonable attorneys' fees and cdsts necessarily related to
obtaining access or institutional controls as required by Section VII (Property Requirements);
(d) costs of any response activities the City performs that are not required under, or approved by
EPA pursuant to this Amended CD; (e) costs related to the City's litigation, settlement,
development of potential contribution claims, or identification of defendants; ( fl internal costs of
the City, including but not limited to, salaries, travel, or in-kind services, except for those costs
that represent the work of employees of the City directly performing the Work; (g) any costs
incurred by the City prior to the Effective Date; or (h) any costs incurred by the City pursuant to
Section XIII (Dispute Resolution).
39. Termination of Disbursements from the Special Account. EPA's obligation to
disburse funds from the Reilly Tar & Chemical SLP Site Disbursement Special Account under
this Amended CD shall terminate upon EPA's determination that the City: (a) has knowingly
submitted a materially false or misleading Cost Summary and Certification; (b) has submitted a
materially inaccurate or incomplete Cost Summary and Certification, and has failed to correct the
materially inaccurate or incomplete Cost Summary and Certification within 30 days after being
22
notified of, and given the opportunity to cure, the deficiency; or (c) failed to submit a Cost
Summary and Certification as required by Paragraph 37 (Requests for Disbursement of Special
Account Funds) within 30 days (or such longer period as EPA agrees) after being notified that
EPA intends to terminate its obligation to make disbursements pursuant to this Section because
of the City's failure to submit the Cost Summary and Certification as required by Paragraph 37.
EPA's obligation to disburse funds from the Reilly Tar & Chemical SLP Site Disbursement
Special Account shall also terminate {a) upon EPA's assumption of performance of any portion
of the Work pursuant to Paragraph 70 (Work Takeover), when such assumption of performance
of the Work is not challenged by the City or, if challenged, is upheld under Section XIII (Dispute
Resolution) and (b) upon exhaustion of funds in the Reilly Tar & Chemical SLP Site
Disbursement Special Account. The City may dispute EPA's termination of special account
disbursements under Section XIII.
40. Recapture of Special Account Disbursements. Upon termination of
disbursements from the Reilly Tar & Chemical SLP Site Disbursement Special Account under
Paragraph 39 (Termination of Disbursements from the Special Account), if EPA has previously
disbursed funds from the Reilly Tar & Chemical SLP Site Disbursement Special Account for
activities specifically related to the reason for termination, e.g., discovery of a materially false or
misleading submission after disbursement of funds based on that submission, EPA shall submit a
bill to the City for those amounts already disbursed from the Reilly Tar & Chemical SLP Site
Disbursement Special Account specifically related to the reason for termination, plus Interest on
that amount covering the period from the date of disbursement of the funds by EPA to the date of
repayment of the funds by the City. Within 14 days after receipt of EPA's bill, the City shall
reimburse the EPA Hazardous Substance Superfund for the total amount billed. Payment shall be
made in accordance with Paragraph 32.a (instructions for future response cost payments). Upon
receipt of payrnent, EPA may deposit all or any portion thereof in the Reilly Tar & Chemical
SLP Site Special Account, the Reilly Tar & Chemical SLP Site Disbursement Special Account,
or the EPA Hazardous Substance Superfund. The determination of where to deposit or how to
use the funds shall not be subject to challenge by the City pursuant to the dispute resolution
provisions of this Amended CD or in any other forum. The City may dispute EPA's
determination as to recapture of funds pursuant to Section XIII (Dispute Resolution).
41. Balance of Special Account Funds. After EPA issues its written Certification of
RA Completion pursuant to this Amended CD, and after EPA completes all disbursement to the
City in accordance with this Section, if any funds remain in the Reilly Tar & Chemical SLP Site
Disbursement Special Account, EPA may transfer such funds to the Reilly Tar & Chemical SLP
Site Special Account or to the EPA Hazardous Substance Superfund. Any transfer of funds to the
Reilly Tar & Chemical SLP Site Special Account or the EPA Hazardous Substance Superfund
shall not be subject to challenge by the City pursuant to the dispute resolution provisions of this
Amended CD or in any other forum.
XL INDEMNIFICATION AND INSURANCE
42. The City's Indemni�cation of the United States and the State.
a. The United States and the State do not assume any liability by entering
into this Amended CD or by virtue of any designation of the City as EPA's authorized
representative under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e). The City shall indemnify,
23
save, and hold harmless the United States and the State and their officials, agents, employees,
contractors, subcontractors, and representatives for or from any and all claims or causes of action
arising from, or on account of, negligent or other wrongful acts or omissions of the City, its
officials, employees, agents, contractors, subcontractors, and any persons acting on the City's
behalf or under its control, in carrying out activities pursuant to this Amended CD, including, but
not limited to, any claims arising from any designation of the City as EPA's authorized
representatives under Section 104(e) of CERCLA. Further, the City agrees to pay the United
States and the State all costs they incur including, but not limited to, attorneys' fees and other
expenses of litigation and settlement arising from, or on account of, claims made against the
United States and the State based on negligent or other wrongful acts or omissions of the City, its
officials, employees, agents, contractors, subcontractors, and any persons acting on its behalf or
under its control, in carrying out activities pursuant to this Amended CD. Neither the United
States nor the State shall be held out as a party to any contract entered into by or on behalf of the
City in carrying out activities pursuant to this Amended CD. Neither the City nor any such
contractor shall be considered an agent of the United States or the State. Notwithstanding the
foregoing, the City's obligation to indemnify, save, or hold harmless the United States and the
State shall be limited to the extent of the City's maximum liability under Minnesota law had such
claim or cause of action been asserted against the City.
b. The United States and the State, respectively, shall give the City notice of
any claim for which the United States or the State plans to seek indemnification pursuant to this
Paragraph 42, and shall consult with the City prior to settling such claim.
43. The City covenants not to sue and agrees not to assert any claims or causes of
action against the United States and the State, respectively, for damages or reimbursement or for
set-off of any payments made or to be made to the United States or the State, arising from or on
account of any contract, agreement, or arrangement between the City and any person for
performance of Work on or relating to the Site, including, but not limited to, claims on account
of construction delays. In addition, the City shall indemnify, save and hold harmless the United
States and the State with respect to any and all claims for damages or reimbursement arising
from or on account of any contract, agreement, or arrangement between the City and any person
for performance of Work on or relating to the Site, including, but not limited to, claims on
account of construction delays.
44. Insurance. No later than 15 days following the Effective Date, the City shall
secure, and shall maintain until the first anniversary after issuance of EPA's Certification of RA
Completion pursuant to Paragraph 12 (Certification of RA Completion) of the Amended RAP,
commercial general liability insurance with limits of $1 million, for any one occurrence, and
automobile liability insurance with limits of $1 million, combined single limit, naming the
United States and the State as additional insureds with respect to all liability arising out of the
activities performed by or on behalf of the City pursuant to this Amended CD. In addition, for
the duration of this Amended CD, the City shall satisfy, or shall ensure that its contractors or
subcontractors satisfy, all applicable laws and regulations regarding the provision of worker's
compensation insurance for all persons performing the Work on behalf of the City in furtherance
of this Amended CD. The City shall provide to EPA and the State certificates of such insurance
and a copy of each insurance policy within 15 days of securing such insurance. The City shall
resubmit such certificates and copies of policies each year on the anniversary of the Effective
Date. If the City demonstrates by evidence satisfactory to EPA and the State that any contractor
24
or subcontractor maintains insurance equivalent to that described above, or insurance covering
the same risks but in a lesser amount, then, with respect to that contractor or subcontractor, the
City need provide only that portion of the insurance described above that is not maintained by
the contractor or subcontractor.
XII. FORCE MAJEURE
45. "Force majeure," for purposes of this Amended CD, is defined as any event
arising from causes beyond the control of the City, of any entity controlled by the City, or of the
City's contractors that delays or prevents the performance of any obligation under this Amended
CD despite the City's best efforts to fulfill the obligation. The requirement that the City exercise
"best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force
majeure and best efforts to address the effects of any potential force majeure (a) as it is occurring
and (b) following the potential force majeure such that the delay and any adverse effects of the
delay are minimized to the greatest extent possible. "Force majeure" does not include financial
inability to complete the Work or a failure to achieve the Performance Standards.
46. If any event occurs or has occurred that may delay the performance of any
obligation under this Amended CD for which the City intends or may intend to assert a claim of
force majeure, the City shall notify EPA's Project Coordinator orally or, in his or her absence,
EPA's Alternate Project Coordinator or, in the event both of EPA's designated representatives
are unavailable, the Director of the Superfund Division, EPA Region 5, within seven days of
when the City first knew that the event might cause a delay. Within 14 days thereafter, the City
shall provide in writing to EPA and the State an explanation and description of the reasons for
the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or
minimize the delay; a schedule for implementation of any measures to be taken to prevent or
mitigate the delay or the effect of the delay; the City's rationale for attributing such delay to a
force majeure; and a statement as to whether, in the opinion of the City, such event may cause or
contribute to an endangerment to public health or welfare, or the environment. The City shall
include with any notice all available documentation supporting their claim that the delay was
attributable to a force majeure. The City shall be deemed to know of any circumstance of which
the City, any entity controlled by the City, or the City's contractors or subcontractors knew or
should have known. Failure to comply with the above requirements regarding an event shall
preclude the City from asserting any claim of force majeure regarding that event, provided,
however, that if EPA, despite the late or incomplete notice, is able to assess to its satisfaction
whether the event is a force majeure under Paragraph 45 and whether the City has exercised its
best efforts under Paragaph 45, EPA may, in its unreviewable discretion, excuse in writing the
City's failure to submit timely or complete notices under this Paragraph.
47. If EPA, after a reasonable opportunity for review and comment by the State,
agrees that the delay or anticipated delay is attributable to a force majeure, the time for
performance of the obligations under this Amended CD that are affected by the force majeure
will be extended by EPA, after a reasonable opportunity for review and comment by the State,
for such time as is necessary to compiete those obligations. An extension of the time for
performance of the obligatians affected by the force majeure shall not, of itself, extend the time
for performance of any other obligation. If EPA, after a reasonable opportunity for review and
comment by the State, does not agree that the delay or anticipated delay has been or will be
caused by a force majeure, EPA will notify the City in writing of its decision. If EPA, after a
25
reasonable opportunity for review and comment by the State, agrees that the delay is attributable
to a force majeure, EPA will notify the City in writing of the length of the extension, if any, for
performance of the obligations affected by the force majeure.
48. If the City elects to invoke the dispute resolution procedures set forth in
Section XIII (Dispute Resolution) regarding EPA's decision, it shall do so no later than 15 days
after receipt of EPA's notice. In any such proceeding, the City shall have the burden of
demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or
will be caused by a force majeure, that the duration of the delay or the extension sought was or
will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate
the effects of the delay, and that the City complied with the requirements of Paragraphs 45 and
46. If the City carries this burden, the delay at issue shall be deemed not to be a violation by the
City of the affected obligation of this Amended CD identified to EPA and the Court.
49. The failure by EPA to timely complete any obligation under the Amended CD or
under the Amended RAP is not a violation of the Amended CD, provided, however, that if such
failure prevents the City from meeting one or more deadlines in the Amended RAP, the City may
seek relief under this Section.
XIII. DISPUTE RE50LUTION
50. Unless otherwise expressly provided for in this Amended CD, the dispute
resolution procedures of this Section shall be the exclusive mechanism to resolve disputes
regarding this Amended CD. However, the procedures set forth in this Section shall not apply to
actions by the United States or the State to enforce obligations of the City that have not been
disputed in accordance with this Section.
51. A dispute shall be considered to have arisen when one party sends the other
parties a written Notice of Dispute. Any dispute regarding this Amended CD shall in the first
instance be the subject of informal negotiations between the parties to the dispute. The period for
informal negotiations shall not exceed 20 days from the time the dispute arises, unless it is
modified by written agreement of the parties to the dispute.
52. Statements of Position.
a. In the event that the parties cannot resolve a dispute by informal
negotiations under the preceding Paragraph, then the position advanced by EPA shall be
considered binding unless, within 14 days after the conclusion of the informal negotiation period,
the City invokes the formal dispute resolution procedures of this Section by serving on the
United States and the State a written Statement of Position on the matter in dispute, including,
but not limited to, any factual data, analysis, or opinion supporting that position and any
supporting documentation relied upon by the City. The Statement of Position shall specify the
City's position as to whether formal dispute resolution should proceed under Paragraph 53
(Record Review) or 54.
b. Within 14 days after receipt of the City's Statement of Position, EPA will
serve on the City its Statement of Position, including, but not limited to, any factual data,
analysis, or opinion supporting that position and all supporting documentation relied upon by
EPA. EPA's Statement of Position shall include a statement as to whether formal dispute
26
resolution should proceed under Paragraph 53 {Record Review) or 54. Within 7 days after
receipt of EPA's Statement of Position, the City may submit a Reply. Copies of EPA's Statement
of Position and any Reply by the City will be provided to the State when exchanged.
c. If there is disagreement between EPA and the City as to whether dispute
resolution should proceed under Paragraph 53 (Record Review) or 54, the parties to the dispute
shall follow the procedures set forth in the Paragraph determined by EPA to be applicable.
However, if the City ultimately appeals to the Court to resolve the dispute, the Court shall
determine which Paragraph is applicable in accordance with the standards of applicability set
forth in Paragraphs 53 and 54.
53. Record Review. Formal dispute resolution for disputes pertaining to the selection
or adequacy of any response action and all other disputes that are accorded review on the
administrative record under applicable principles of administrative law shall be conducted
pursuant to the procedures set forth in this Paragraph. For purposes of this Paragraph, the
adequacy of any response action includes, without limitation, the adequacy or appropriateness of
plans, procedures to implement plans, or any other items requiring approval by EPA under this
Amended CD, and the adequacy of the performance of response actions taken pursuant to this
Amended CD. Nothing in this Amended CD shall be construed to allow any dispute by the City
regarding the validity of the provisions of the RODs.
a. An administrative record of the dispute shall be maintained by EPA and
shall contain all statements of position, including supporting documentation, submitted pursuant
to this Section. Where appropriate, EPA may allow submission of supplemental statements of
position by the parties to the dispute.
b. The Director of the Superfund Division, EPA Region 5, will issue a final
administrative decision resolving the dispute based on the administrative record described in
Paragaph 53.a. This decision shall be binding upon the City, subject only to the right to seek
judicial review pursuant to Paragraphs 53.c and 53.d.
c. Any administrative decision made by EPA pursuant to Paragraph 53.b
shall be reviewable by this Court, provided that a motion for judicial review of the decision is
filed by the City with the Court and served on all Parties within 10 days after receipt of EPA's
decision. The motion shall include a description of the matter in dispute, the efforts made by the
parties to resolve it, the relief requested, and the schedule, if any, within which the dispute must
be resolved to ensure orderly implementation of this Amended CD. The United States may file a
response to the City's motion.
d. In proceedings on any dispute governed by this Paragaph, the City shall
have the burden of demonstrating that the decision af the Superfund Division Director is
arbitrary and capricious or otherwise not in accordance with law. Judicial review of EPA's
decision shall be on the administrative record compiled pursuant to Paragraph 53.a.
54. �ormal dispute resolution for disputes that neither pertain to the selection or
adequacy of any response action nor are otherwise accorded review on the administrative record
under applicable principles of administrative law, shall be governed by this Paragraph.
27
a. The Director of the Superfund Division, EPA Region 5, will issue a final
decision resolving the dispute based on the statements of position and reply, if any, served under
Paragraph 52. The Superfund Division Director's decision shall be binding on the City unless,
within 10 days after receipt of the decision, the City files with the Court and serves on the Parties
a motion for judicial review of the decision setting forth the matter in dispute, the efforts made
by the parties to resolve it, the relief requested, and the schedule, if any, within which the dispute
must be resolved to ensure orderly implementation of the Amended CD. The United States may
file a response to the City's motion.
b. Notwithstanding Paragraph V(CERCLA § 113(j) record review of ROD
and Work) of Section I(Background), judicial review of any dispute governed by this Paragraph
shall be governed by applicable principles of law.
55. The invocation of formal dispute resolution procedures under this Section does
not extend, postpone, or affect in any way any obligation of the City under this Amended CD,
except as provided in Paragraph 33 (Contesting Future Response Costs), as agreed by EPA, or as
determined by the Court. Stipulated penalties with respect to the disputed matter shall continue
to accrue, but payrnent shall be stayed pending resolution of the dispute, as provided in
Paragraph 63. Notwithstanding the stay of payrnent, stipulated penalties shall accrue from the
first day of noncompliance with any applicable provision of this Amended CD. In the event that
the City does not prevail on the disputed issue, stipulated penalties shall be assessed and paid as
provided in Section XIV (Stipulated Penalties).
XIV. STIPULATED PENALTIES
56. The City shall be liable for stipulated penalties in the amounts set forth in
Paragraphs 57 and 58 to the United States and the State — with 50% payable to the United States
and 50% payable to the State — for failure to comply with the requirements of this Amended CD
specified below, unless excused under Section XII (Force Majeure). "Compliance" by the City
shall include completion of all activities and obligations, including payments, required under this
Amended CD, or any deliverable approved under this Amended CD, in accordance with all
applicable requirements of law, this Amended CD, the Amended RAP, and any deliverables
approved under this Amended CD, and within the specified time schedules established by and
approved under this Amended CD.
57. Stipulated Penalty Amounts - Work (Including Payments and Excluding
Deliverables).
a. The following stipulated penalties shall accrue per violation per day for
failure to pay Future Response Costs (as specified in Paragraph 31) or failure to implement
activities required by the Amended RAP:
:
Stipulated Penalty Amounts - Deliverables.
:
a. Material Defects. If an initially submitted or resubmitted deliverable
contains a material defect, and the deliverable is disapproved or modified by EPA under
Paragraph 11 due to such material defect, then the material defect shall constitute a lack of
compliance for purposes of Paragraph Sb. The provisions of Section XIII (Dispute Resolution)
and Section XIV (Stipulated Penalties) shall govern the accrual and payrnent of any stipulated
penalties regarding the City's submissions under this Amended CD.
b. The following stipulated penalties shall accrue per violation per day for
failure to submit timely or adequate deliverables pursuant to the Amended CD:
59. In the event that EPA assumes performance of a portion or all of the Work
pursuant to Paragraph 70 (Work Takeover), the City shall be liable for a stipulated penalty in the
amount of $50,000. Stipulated penalties under this Paragraph are in addition to the remedies
available under Paragraphs 28 (Access to Financial Assurance) and 70 (Work Takeover).
60. All penalties shall begin to accrue on the day after the complete performance is
due or the day a violation occurs and shall continue to accrue through the final day of the
correction of the noncompliance or completion of the activity. However, stipulated penalties
shall not accrue: (a) with respect to a deficient submission under Paragraph 11, during the period,
if any, beginning on the 31 st day after EPA's receipt of such submission until the date that EPA
notifies the City of any deficiency; (b) with respect to a decision by the Director of the
Superfund Division, EPA Region 5, under Paragraph 53.b or 54.a of Section XIII {Dispute
Resolution), during the period, if any, beginning on the 21 st day after the date that the City's
reply to EPA's Statement of Position is received until the date that the Director issues a final
decision regarding such dispute; or (c) with respect to judicial review by this Court of any
dispute under Section XIII (Dispute Resolution), during the period, if any, beginning on the 31 st
day after the Court's receipt of the final submission regarding the dispute until the date that the
Court issues a final decision regarding such dispute. Nothing in this Amended CD shall prevent
the simultaneous accrual of separate penalties for separate violations of this Amended CD.
61. Following EPA's determination that the City has failed to comply with a
requirement of this Amended CD, EPA may give the City written notification of the same and
describe the noncompliance. EPA may send the City a written demand for payment of the
penalties. However, penalties shall accrue as provided in the preceding Paragraph regardless of
whether EPA has notified the City of a violation.
62. All penalties accruing under this Section shall be due and payable to the United
States and the State within 30 days after the City's receipt from EPA of a demand for payment of
the penalties, unless the City invokes the Dispute Resolution procedures under Section XIII
{Dispute Resolution) within the 30-day period. All payments to the United States under this
Section shall indicate that the payment is for stipulated penalties and shall be made in accordance
with Paragraph 32.a (instructions for future response cost payments). All payments to the State
29
under this Section shall indicate that the payment is for stipulated penalties and shall be made in
accordance with instructions to be provided by the State in conjunction with the penalty demand.
63. Penalties shall continue to accrue as provided in Paragraph 60 during any dispute
resolution period, but need not be paid until the following:
a. If the dispute is resolved by agreement of the parties or by a decision of
EPA that is not appealed to this Court, accrued penalties determined to be owed shall be paid to
EPA and the State within 15 days after the agreement or the receipt of EPA's decision or order;
b. If the dispute is appealed to this Court and the United States prevails in
whole or in part, the City shall pay all accrued penalties determined by the Court to be owed to
EPA and the State within 60 days after receipt of the Court's decision or order, except as
provided in Paragraph 63.c;
c. If the Court's decision is appealed by any Party, the City shall pay all
accrued penalties determined by the Court to be owed to the United States and the State into an
interest-bearing escrow account, established at a duly chartered bank or trust company that is
insured by the FDIC, within 60 days after receipt of the Court's decision or order. Penalties shall
be paid into this account as they continue to accrue, at least every 60 days. Within 15 days after
receipt of the final appellate court decision, the escrow agent shall pay the balance of the account
to EPA and the State or to the City to the extent that they prevail.
64. If the City fails to pay stipulated penalties when due, the City shall pay Interest on
the unpaid stipulated penalties as follows: (a) if the City has timely invoked dispute resolution
such that the obligation to pay stipulated penalties has been stayed pending the outcome of
dispute resolution, Interest shall accrue from the date stipulated penalties are due pursuant to
Paragraph 63 until the date of payment; and (b) if the City fails to timely invoke dispute
resolution, Interest shall accrue from the date of demand under Paragraph 62 until the date of
payment. If the City fails to pay stipulated penalties and Interest when due, the United States or
the State may institute proceedings to collect the penalties and Interest.
65. The payrnent of penalties and Interest, if any, shall not alter in any way the City's
obligation to complete the performance of the Work required under this Amended CD.
66. Nothing in this Amended CD shall be construed as prohibiting, altering, or in any
way limiting the ability of the United States or the State to seek any other remedies or sanctions
available by virtue of the City's violation of this Amended CD or of the statutes and regulations
upon which it is based, including, but not limited to, penalties pursuant to CERCLA
Section 122(�, 42 U.S.C. § 9622(�, provided, however, that the United States shall not seek civil
penalties pursuant to CERCLA Section 122(� for any violation for which a stipulated penalty is
provided in this Amended CD, except in the case of a willful violation of this Amended CD.
67. Notwithstanding any other provision of this Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
this Amended CD.
30
XV. COVENANTS BY THE UNITED STATES AND THE STATE
68. Covenants for the City by United States. Except as providecl in Paragraph 69
(General Reservations of Rights), the United States covenants not to sue or to take administrative
action against the City pursuant to CERCLA Sections 106 and 107(a) for the Work. These
covenants shall take effect upon the Effective Date. These covenants are conditioned upon the
satisfactory performance by the City of its obligations under this Amended CD. These covenants
extend only to the City and do not extend to any other person.
69. General Reservations of Rights. The United States reserves, and this Amended
CD is without prejudice to, all rights against the City with respect to all matters not expressly
included within United States' covenants. Notwithstanding any other provision of this Amended
CD, the United States reserves all rights against the City with respect to:
a. liability for failure by the City to meet a requirement of this Amended CD;
b. liability arising from the past, present, or future disposal, release, or threat
of release of Waste Material outside of the Site;
c. liability based on the ownership of the Site by the City when such
ownership commences after signature of this Amended CD by the City;
d. liability based on the operation of the Site by the City when such operation
commences after signature of this Amended CD by the City and does not arise solely from the
City's performance of the Work;
e. liability based on the City's transportation, treatment, storage, or disposal,
or arrangement for transportation, treatment, storage, or disposal of Waste Material at or in
connection with the Site, other than as provided in the ROD, the Work, or otherwise ordered by
EPA, after signature of this Amended CD by the City;
f. liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
g. criminalliability;
h. liability for violations of federal or state law that occur during or after
implementation of the Work; and
i. liability, prior to achievement of Performance Standards, for additional
response actions that EPA determines are necessary to achieve and maintain Performance
Standards or to carry out and maintain the effectiveness of the remedy set forth in the ROD, but
that cannot be required pursuant to Paragaph 16 (Modification of RAP or Related Deliverables).
70. Work Takeover.
a. In the event EPA determines that the City: (1) has ceased implementation
of any portion of the Work; (2) is seriously or repeatedly deficient or late in its performance of
the Work; or (3) is implementing the Work in a manner that may cause an endangerment to
human health or the environment, EPA may, after a reasonable opportunity for review and
comment by the State, issue a written notice ("Work Takeover Notice") to the City. Any Work
31
Takeover Notice issued by EPA will specify the grounds upon which such notice was issued and
will provide the City a period of 10 days within which to remedy the circumstances giving rise to
EPA's issuance of such notice.
b. If, after expiration of the 10-day notice period specified in Paragraph 70.a,
the City has not remedied to EPA's satisfaction the circumstances giving rise to EPA's issuance
of the relevant Work Takeover Notice, EPA may at any time thereafter assume the performance
of all or any portion(s) of the Work as EPA deems necessary ("Work Takeover"). EPA will
notify the City in writing (which writing may be electronic) if EPA determines that
implementation of a Work Takeover is warranted under this Paragraph 70.b. Funding of Work
Takeover costs is addressed under Paragraph 28 (Access to Financial Assurance).
c. The City may invoke the procedures set forth in Paragraph 53 (Record
Review), to dispute EPA's implementation of a Work Talfeover under Paragraph 70.b. However,
notwithstanding the City's invocation of such dispute resolution procedures, and during the
pendency of any such dispute, EPA may in its sole discretion commence and continue a Work
Takeover under Paragraph 70.b until the earlier of (1) the date that the City remedies to EPA's
satisfaction, the circumstances giving rise to EPA's issuance of the relevant Work Takeover
Notice, or (2) the date that a final decision is rendered in accordance with Paragraph 53 (Record
Review) requiring EPA to terminate such Work Takeover.
71. Notwithstanding any other provision of this Amended CD, the United States and
the State retain all authority and reserve all rights to take any and all response actions authorized
by law.
72. Covenants for the City by the State. Except as provided in Paragraph 69
(General Reservations of Rights), the State covenants not to sue or to take administrative action
against the City pursuant to CERCLA Sections 106 and 107(a) or applicable state law relating to
the Work. These covenants shall take effect upon the Effective Date. These covenants are
conditioned upon the satisfactory performance by the City of its obligations under this Amended
CD. These covenants extend only to the City and do not extend to any other person.
73. General Reservations of Rights. The State reserves, and this Amended CD is
without prejudice to, all rights against the City with respect to all matters not expressly included
within the State's covenants. Notwithstanding any other provision of this Amended CD, the State
reserves all rights against the City with respect to:
a. liability for failure by the City to meet a requirement of this Amended CD;
b. liability arising from the past, present, or future disposal, release, or threat
of release of Waste Material outside of the Site;
c. liability based on the ownership of the Site by the City when such
ownership commences after signature of this Amended CD by the City;
d. liability based on the operation of the Site by the City when such operation
commences after signature of this Amended CD by the City and does not arise solely from the
City's performance of the Work;
32
e. liability based on the City's transportation, treatment, storage, or disposal,
or arrangement for transportation, treatment, storage, or disposal of Waste Material at or in
connection with the Site, other than as provided in the ROD, the Work, or otherwise ordered by
EPA, after signature of this Amended CD by the City;
f. liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
g. criminal liability; and
h. liability for violations of federal or state law that occur during or after
implementation of the Work.
XVI. COVENANTS BY THE CITY
74. Covenants by the City. Subject to the reservations in Paragraph 76, the City
covenants not to sue and agrees not to assert any claims or causes of action against the United
States or the State with respect to the Work and this Amended CD, including, but not limited to:
a. any direct or indirect claim for reimbursement from the EPA Hazardous
Substance Superfund through CERCLA Sections 106(b)(2), 107, 11 l, 112 or 113, or any other
provision of law;
b. any claims under CERCLA Sections 107 or 113, RCRA Section 7002{a),
42 U.S.C. § 6972(a), or state law regarding the Work, past response actions regarding this Site,
and this Amended CD;
c. any claims arising out of response actions at or in connection with the
Wurk, inclu�ing any claim under the United States Constitution, the Minnesota Constitution, the
Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at common
law; or
d. any direct or indirect claim for disbursernent from the Reilly Tar &
Chemical SLP Site Special Account or Reilly Tar & Chemical SLP Site Disbursement Special
Account, except as provided in Section X(Disbursement of Special Account Funds).
75. Except as provided in Paragraphs 78 (De Micromis Waiver of Claims by the City)
and 86 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if the
United States or the State brings a cause of action or issues an order pursuant to any of the
reservations in Section XV (Covenants by EPA and the State), other than in Paragraphs 69.a
(claims for failure to meet a requirement of the Amended CD), 69.g (criminal liability), and 69.h
(violations of federal/state law during or after implementation of the Work), but only to the
extent that the City's claims arise from the same response action, response costs, or damages that
the United States or the State is seeking pursuant to the applicable reservation.
76. The City reserves, and this Amended CD is without prejudice to, claims against
the United States, subject to the provisions of Chapter 171 of Title 28 of the United States Code,
and brought pursuant to any statute other than CERCLA or RCRA and for which the waiver of
sovereign immunity is found in a statute other than CERCLA or RCRA, for money damages for
injury or loss of property or personal injury or death caused by the negligent or wrongful act or
33
omission of any employee of the United States, as that term is defined in 28 U.S.C. § 2671, while
acting within the scope of his or her office or employment under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred. However, the foregoing shall not include any claim based on
EPA's selection of response actions, or the oversight or approval of the City's deliverables or
activities.
77. Nothing in this Amended CD shall be deemed to constitute approval or
preauthorization of a claim within the meaning of CERCLA Section 111, 42 U.S.C. § 9611, or
40 C.F.R. § 300.700(d).
78. De Micromis Waiver of Claims by the City.
a. The City agrees not to assert any claims and to waive all claims or causes
of action (including but not limited to claims or causes of action under CERCLA Sections 107(a)
and 113) that it may have for all matters relating to the Site against any person where the
person's liability to the City with respect to the Site is based solely on having arranged for
disposal or treatment, or for transport for disposal or treatment, of hazardous substances at the
Site, or having accepted for transport for disposal or treatment of hazardous substances at the
Site, if all or part of the disposal, treatment, or transport occurred before April 1, 2001, and the
total amount of material containing hazardous substances contributed by such person to the Site
was less than 110 gallons of liquid materials or 200 pounds of solid materials;
b. Exceptions to Waiver. The waiver under this Paragraph 78 shall not
apply with respect to any defense, claim, or cause of action that the City may have against any
person otherwise covered by such waiver if such person asserts a claim or cause of action
relating to the Site against the City.
XVII. COVENANTS BY THE PASSIVE MUNICIPAL PARTY
79. Covenants for the City by the Passive Municipal Party. Except as provided in
Paragraph 79 (General Reservations of Rights), the Passive Municipal Party covenants not to sue
or to take other action against the City pursuant to CERCLA Sections 106 and 107(a) or
applicable state law relating to the Work. These covenants shall take effect upon the Effective
Date. These covenants are conditioned upon the satisfactory performance by the City of its
obligations under this Amended CD. These covenants extend only to the City and do not extend
to any other person.
80. General Reservations of Rights. The Passive Municipal Party reserves, and this
Amended CD is without prejudice to, all rights against the City with respect to all matters not
expressly included within the Passive Municipal Party's covenants. Notwithstanding any other
provision of this Amended CD, the Passive Municipal Party reserves all rights against the City
with respect to:
a. liability for failure by the City to meet a requirement of this Amended CD
and such failure results in a material impact to the Passive Municipal Party;
b. liability arising from the past, present, or future disposal, release, or threat
of release of Waste Material outside of the Site;
�
c. liability based on the ownership of the Site by the City when such
ownership commences after signature of this Amended CD by the City;
d. liability based on the operation of the Site by the City when such operation
commences after signature of this Amended CD by the City and does not arise solely from the
City's performance of the Work;
e. liability based on the City's transportation, treatment, storage, or disposal,
or arrangement for transportation, treatment, storage, or disposal of Waste Material at or in
connection with the Site, other than as provided in the ROD, the Work, or otherwise ordered by
EPA, after signature of this Amended CD by the City;
f. liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;
g. criminal liability; and
h. liability for violations of federal or state law that occur during or after
implementation of the Work.
XVIII. EFFECT OF SETTLEMENT; CONTRIBUTION
81. Except as provided in Paragraph 78 (Waiver of Claims by the City), nothing in
this Amended CD shall be construed to create any rights in, or grant any cause of action to, any
person not a Party to this Amended CD. Except as provided in Section XVI (Covenants by the
City), each of the Parties expressly reserves any and all rights (including, but not limited to,
pursuant to CERCLA Section 113, 42 U.S.C. § 9613), defenses, claims, demands, and causes of
action that each Party may have with respect to any matter, transaction, or occurrence relating in
any way to the Site against any person not a Party hereto. Nothing in this Amended CD
diminishes the right of the United States, pursuant to CERCLA Section 113(�(2) and {3),
42 U.S.C. § 9613(�(2)-(3), to pursue any such persons to obtain additional response costs or
response action and to enter into settlements that give rise to contribution protection pursuant to
Section 113(fl(2).
82. The Parties agree, and by entering this Amended CD this Court finds, that this
Amended CD constitutes a judicially-approved settlement pursuant to which the City has, as of
the Effective Date, resolved liability to the United States within the meaning of CERCLA
Section 113(fl(2), 42 U.S.C. § 9b13(fl(2), and is entitled, as of the Effective Date, to protection
from contribution actions or claims as provided by CERCLA Section 113( fl(2), or as may be
otherwise provided by law, for the "matters addressed" in this Amended CD. The "matters
addressed" in this Amended CD are all response actions taken or to be taken and all response
costs incurred or to be incurred, at or in connection with the Site, by the United States or any
other person; provided, however, that if the United States exercises rights under the reservations
in Section XV (Covenants by the United States and the State), other than in Paragraphs 69.a
(claims for failure to meet a requirement of the Amended CD), 69.g (criminal liability), or 69.h
(violations of federal/state law during or after implementation of the Work), the "matters
addressed" in this Amended CD will no longer include those response costs or response actions.
83. The Parties further agree, and by entering this Amended CD this Court finds, that
the complaint filed by the United States in this action is a civil action within the meaning of
35
CERCLA Section 113(fl(1), 42 U.S.C. § 9613(fl(1), and that this Amended CD constitutes a
judicially-approved settlement pursuant to which the City has, as of the Effective Date, resolved
liability to the United States within the meaning of CERCLA Section 113(�(3)(B), 42 U.S.C.
§ 9613(�(3)(B).
84. The City shall, with respect to any suit or claim brought by it for matters related
to this Amended CD, notify the United States and the State in writing no later than 60 days prior
to the initiation of such suit or claim.
85. The City shall, with respect to any suit or claim brought against it for matters
related to this Amended CD, notify in writing the United States and the State within 10 days after
service of the complaint on the City. In addition, the City shall notify the United States and the
State within 10 days after service or receipt of any Motion for Summary Judgment and within
10 days after receipt of any order from a court setting a case for trial.
86. Res Judicata and Other Defenses. In any subsequent administrative or judicial
proceeding initiated by the United States, the State, or the Passive Municipal Party for injunctive
relief, recovery of response costs, or other appropriate relief relating to the Site, the City shall not
assert, and may not maintain, any defense or claim based upon the principles of waiver, res
judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any
contention that the claims raised by the United States, the State, or the Passive Municipal Party
in the subsequent proceeding were or should have been brought in the instant case; provided,
however, that nothing in this Paragraph affects the enforceability of the covenants not to sue set
forth in Section XV (Covenants by the United States and the State).
XIX. ACCESS TO INFORMATION
87. The City shall provide to EPA, the State, and the Passive Municipal Party upon
request, copies of all records, reports, documents, and other information (including records,
reports, documents, and other information in electronic form) (hereinafter referred to as
"Records") within the City's possession or control or that of their contractors or agents relating
to activities at the Site or to the implementation of this Amended CD, including, but not limited
to, sampling, analysis, chain of custody records, manifests, trucking logs, receipts; reports,
sample traffic routing, correspondence, or other documents or information regarding the Work.
The City shall also make available to EPA and the State, for purposes of investigation,
information gathering, or testimony, their employees, agents, or representatives with knowledge
of relevant facts concerning the performance of the Work.
88. Privileged and Protected Claims.
a. The City may assert that all or part of a Record requested by EPA, the
State, or the Passive Municipal Party is privileged or protected as provided under federal law, in
lieu of providing the Record, provided the City complies with Paragraph 88.b, and except as
provided in Paragraph 88.c.
b. If the City assert a claim of privilege or protection, it shall provide EPA,
the State, or the Passive Municipal Party with the following information regarding such Record:
its title; its date; the name, title, affiliation (e.g., company or firm), and address of the author, of
each addressee, and of each recipient; a description of the Record's contents; and the privilege or
36
protection asserted. If a claim of privilege or protection applies only to a portion of a Record, the
City shall provide the Record to EPA, the State, or the Passive Municipal Party in redacted form
to mask the privileged or protected portion only. The City shall retain all Records that it claims
to be privileged or protected until EPA, the State, or the Passive Municipal Party have had a
reasonable opportunity to dispute the privilege or protection claim and any such dispute has been
resolved in the City's favor.
c. The City may make no claim of privilege or protection regarding: (1) any
data regarding the Site, including, but not limited to, all sampling, analytical, monitoring,
hydrogeologic, scientific, chemical, radiological or engineering data, or the portion of any other
Record that evidences conditions at or around the Site; or (2) the portion of any Record that the
City is required to create or generate pursuant to this Amended CD.
89. Business Confidential Claims. The Lity may assert that all or part of a Record
provided to EPA, the State, or the Passive Municipal Party under this Section or Section XX
(Retention of Records) is business confidential to the extent permitted by and in accordance with
CERCLA Section 104(e)(7), 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203{b). The City shall
segregate and clearly identify all Records or parts thereof submitted under this Amended CD for
which the City asserts business confidentiality claims. Records submitted to EPA determined to
be confidential by EPA will be afforded the protection specified in 40 C.F.R. Part 2, Subpart B.
If no claim of confidentiality accompanies Records when they axe submitted to EPA and the
State, or if EPA has notified the City that the Records are not confidential under the standards of
CERCLA Section 104(e)(7) or 40 C.F.R. Part 2, Subpart B, the public may be given access to
such Records without further notice to the City.
90. If relevant to the proceeding, the Parties agree that validated sampling or
monitoring data generated in accordance with the Amended RAP and reviewed and approved by
EPA shall be admissible as evidence, without objection, in any proceeding under this Amended
CD.
91. Notwithstanding any provision of this Amendetl CD, EPA and the State retain all
of their information gathering and inspection authorities and rights, including enforcement
actions related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.
XX. RETENTION OF RECORDS
92. Until 10 years after EPA's Certification of Work Completion under Paragraph 13
(Certification of Wark Completion) of the Amended RAP, the City shall preserve and retain all
non-identical copies of Records {including Records in electranic form) now in its possession or
control or that come into its possession or control that relate in any manner to its or any other
person's liability under CERCLA with respect to the Site. The Ci#y must also retain, and instruct
its contractors and agents to preserve, for the same period of time specified above all non-
identical copies of the last draft or final version of any Records {including Records in electronic
form) now in its possession or control or that come into its possession or control that relate in
any rYaanner to the performance of the Work, provided, however, that the City (and its contractors
and agents) must retain, in addition, copies of all data generated during the performance of the
Work and not contained in the aforementioned Records required to be retained. Each of the
37
above record retention requirements shall apply regardless of any corporate retention policy to
the contrary.
93. At the conclusion of this record retention period, the City shall notify the United
States and the State at least 90 days prior to the destruction of any such Records, and, upon
request by the United States or the State, and except as provided in Paragraph 88 (Privileged and
Protected Claims), the City shall deliver any such Records to EPA or the State.
XXI. NOTICES AND SUBMISSIONS
94. All approvals, consents, deliverables, modifications, notices, notifications,
objections, proposals, reports, and requests specified in this Amended CD must be in writing
unless otherwise specified in this Amended CD, the Amended RAP, or by agreement of the
Parties. Whenever, under this Amended CD, notice is required to be given, or a report or other
document is required to be sent, by one Party to another, it must be directed to the person(s)
specified below at the address(es) specified below. Any Party may change the person and/or
address applicable to it by providing notice of such change to all Parties. All notices under this
Section are effective upon receipt, unless otherwise specified. Notices required to be sent to
EPA, and not to the United States, should not be sent to the DOJ. Except as otherwise provided,
notice to a Party by email (if that option is provided below) or by regular mail in accordance with
this Section satisfies any notice requirement of the Amended CD regarding such Party.
As to the United States: EES Case Management Unit
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, DC 20044-7611
eescdcopy. enrd@usdoj . gov
Re: DJ # 90-7-1-21 /2
As to EPA: Director, Superfund Division
U.S. Environmental Protection Agency
Region 5
77 W. Jackson Blvd. SR-6J
Chicago, IL 60604
and:
Nabil Fayoumi
EPA Project Coordinator
U.S. Environmental Protection Agency
Region 5
77 W. Jackson Blvd. SR-6J
Chicago, IL 60604
fayoumi. nabil@epa. gov
312-886-6840
:
As to the Supervisory Accountant: Richard Hackley
As to EPA Cincinnati Finance
Center:
As to the State:
Chief, Program Accounting & Analysis Section
Comptroller Branch
77 W. Jackson Blvd. SR-6J
Chicago, IL 60604
hackley.ri chard@epa. gov
EPA Cincinnati Finance Center
26 W. Martin Luther King Drive
Cincinnati, Ohio 45268
cinwd_acctsreceivable@epa. gov
Crague Biglow
Supervisor, Site Remediation 2
Minnesota Pollution Control Agency
520 Lafayette Road N
St. Paul, MN 55155-4194
cra ug e.bi 1� ow cr,state.mn.us
and:
Jennifer Jevnisek
State Project Coordinator
Minnesota Pollution Control Agency
520 Lafayette Road N
St. Paul, MN 55155-4194
j ennifer. j evnisek@state. mn.us
As to the City: Reilly Tar Site Project Coordinator
City of St. Louis Park
7305 Oxford Street
St. Louis Park, MN 55426-4512
As to the Passive Municipal Party
and
City Clerk
City of St. Louis Park
5005 Minnetonka Blvd.
St. Louis Park, MN 55426-2216
City of Hopkins
City Manager
1 O 10 1 st Street South
Hopkins, MN 55343
�
XXII. RETENTION OF JURISDICTION
95. This Court retains jurisdiction over both the subject matter of this Amended CD
and the City for the duration of the performance of the terms and provisions of this Amended CD
for the purpose of enabling any of the Parties to apply to the Court at any time for such further
order, direction, and relief as may be necessary or appropriate for the construction or
modification of this Amended CD, or to effectuate or enforce compliance with its terms, or to
resolve disputes in accordance with Section XIII (Dispute Resolution).
CD:
XXIII. APPENDICES
96. The following appendices are attached to and incorporated into this Amended
"Appendix A" is the Amended RAP.
"Appendix B" is the description and/or map of the Site.
"Appendix C" is the financial test demonstration.
XXIV. MODIFICATION
97. Except as provided in Paragraph 16 (Modification of RAP or Related
Deliverables), material modifications to this Amended CD shall be in writing, signed by the
United States, the State, and the City, and shall be effective upon approval by the Court. Material
modifications to the Amended RAP shall be in writing, signed by the United States and the City,
and shall be effective upon approval by the Court. Before providing its approval to any material
modification to the Amended RAP, the United States will provide the State with a reasonable
opportunity to review and comment on the proposed modification. A modification to the
Amended RAP shall be considered material if it implements a ROD amendment that
fundamentally alters the basic features of the selected remedy within the meaning of 40 C.F.R.
§ 300.435(c)(2)(ii). Except as provided in Paragraph 16, non-material modifications to this
Amended CD, including the Amended RAP, shall be in writing and shall be effective when
signed by duly authorized representatives of the United States and the City.
98. Any modification that does not affect the obligations of or the protections
afforded to the Passive Parties or the Passive Municipal Party may be executed without the
signatures of the Passive Parties or the Passive Municipal Party.
99. Nothing in this Amended CD shall be deemed to alter the Court's power to
enforce, supervise, or approve modifications to this Amended CD.
XXV. DISMISSAL OF CERTAIN PARTIES
100. All parties to the 1986 Consent Decree hereby stipulate that, to the extent final
judgement has not been entered pursuant to the 1986 Consent Decree, all claims by or against
Reilly Tar and its successors are dismissed with prejudice and without costs to any party and
Reilly Tar and its successors shall no longer be a party to this action or to the Amended Consent
Decree.
40
101. The Parties agt-ee that the Minnesota Department of Health no longer needs to be
identified as a separate party to this action. Accordingly, the United States, the State, and the
Minnesota Department of Health hereby stipulate that, to the extent final judgment has not been
entered pursuant to the 1986 Consent Decree, the Minnesota Department of Health's cl'aims are
dismissed with prejudice and without costs to any Party and the Minnesota Department of Health
(separate from the State) shall no longer be a party to this action or to the Amended Consent
Decree.
102. Effective upon entry of this Amended CD, this action shall be captioned as "In re
Reilly Tar & Chemical Site" Civ. No. 4-80-469 and the City and the Passive Parties consent to
the Court's continued jurisdiction over the City and the Passive Parties pursuant to this Amended
CD.
XXVI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
103. This Amended CD shall be lodged with the Court for at least 30 days for public
notice and comment in accordance with CERCLA Section 122(d)(2), 42 U.S.C. § 9622(d)(2),
and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold its consent if
the comments regarding the Amended CD disclose facts or considerations that indicate that the
Amended CD is inappropriate, improper, or inadequate. The City consents to the entry of this
Amended CD without further notice.
104. If for any reason the Court should decline to approve this Amended CD in the
form presented, this agreement is voidable at the sole discretion of any Party and the terms of the
agreement may not be used as evidence in any litigation between the Parties.
XXVII. SIGNATORIES/SERVICE
105. Each undersigned representative of the City, Hopkins, HRA, Oak Park Village
Associates, and Philip's Investment Co., and the State, and the Assistant Attorney General for
the Environment and Natural Resources Division of the Department of Justice certifies that he or
she is fully authorized to enter into the terms and conditions of this Amended CD and to execute
and legally bind such Party to this document.
106. The City agrees not to oppose entry of this Amended CD by this Court or to
challenge any provision of this Amended CD unless the United States has notified the City in
writin� that it no longer supports entry of the Amended CD.
XXVIII. FINAL JUDGMENT
107. This Amended CD and its appendices constitute the final, complete, and exclusive
agreement and understanding among the Parties regarding the settlement embodied in the
Amended CD. The Parties acknowledge that there are no representations, ageements, or
understandings relating to the settlement other than those expressly contained in this Amended
CD.
108. Upon entry of this Amended CD by the Court, this Amended CD shall constitute
a final judgment between and among the United States, the State, and the City. The Court enters
this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.
41
SO ORDERED THIS DAY OF , 2018.
United States District Judge
42
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR THE UNITED STATES OF AMERICA:
Dated JEFFREY H. WOOD
Acting Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division
Washington, D.C. 20530
JEFFREY A. SPECTOR
Senior Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Washington, D.C. 20044-7611
GREGORY G. BROOKER
United States Attorney
District of Minnesota
FRIEDRICH A.P. SIEKERT
Assistant United States Attorney
District of Minnesota
600 United States Courthouse
300 South Fourth Street
Minneapolis, MN 55415
(612) 664-5697
Fred. Siekert@usdoj . gov
43
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR THE UNITED STATES OF AMERICA:
CATHY STEPP
Regional Administrator, Region 5
U.S. Environmental Protection Agency
77 W. Jackson Blvd.
Chicago, IL 60604
RACHEL TOENJES ZANDER
Associate Regional Counsel
U.S. Environmental Protection Agency
Region 5
77 West Jackson Blvd.
Chicago, IL 60604
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
Date:
Approved as to form and legality:
Date:
FOR THE STATE OF MINNESOTA:
LAURA BISHOP
Commissioner
Minnesota Pollution Control Agency
OFFICE OF THE ATTORNEY GENERAL
MAX KIELEY
Assistant Attorney General
Atty. No. 0389363
445 Minnesota Street Suite 900
Saint Paul, MN 55101-2i27
(651) 757-1244 (voice)
(651) 297-7206 (TTY)
max.kieley(cr�ag. state.mn. us
�
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
Dated
Approved as to form and legality:
FOR THE CITY OF ST. LOUIS PARK, MN:
JAKE SPANO
Mayor, City of St. Louis Park
5005 Minnetonka Boulevard
St. Louis Park, MN 55416-2216
Dated CHARLES N. NAUEN
Atty. No. 121216
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401-2179
(612) 596-4006
cnnauen c ,locklaw.com
Dated
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR THE CITY OF HOPKINS, MN:
Name (print):
Title:
Address:
Agent Authorized to Accept Service Name (print):
on Behalf of Above-signed Party: Title:
Company:
Address:
Phone:
email:
47
Dated
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR VERTELLUS SPECIALTIES INC. (n/k/a VSI
LIQUIDATING INC.):
David MacGreevey
Liquidating Trustee of the VSI Liquidating Trust
c/o Zolfo Cooper, 1114 Avenue of the Americas
41 St Floor
New York, NY 11036
Agent Authorized to Accept Service Name (print):
on Behalf of Above-signed Party: Title:
Company:
Address:
Phone:
email:
. ;�
Dated
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR THE HOUSING AND REDEVELOPMENT
AUTHORITY OF ST. LOUIS PARK:
Name (print):
Title:
Address:
Agent Authorized to Accept Service Name (print):
on Behalf of Above-signed Party: Title:
Company:
Address:
Phone:
email:
�.
Dated
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR OAK PARK VILLAGE ASSOCIATES:
Name (print):
Title:
Address:
Agent Authorized to Accept Service Name (print):
on Behalf of Above-signed Party: Title:
Company:
Address:
Phone:
email:
50
Dated
Signature Page for Amended CD regarding the Reilly Tar & Chemical Corp.
(St. Louis Park Plant) Superfund Site
FOR PHILIP'S INVESTMENT CO.:
Name (print):
Title:
Address:
Agent Authorized to Accept Service Name (print):
on Behalf of Above-signed Party: Title:
Company:
Address:
Phone:
email:
51