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HomeMy WebLinkAbout2001-277ORDINANCE NO a O0 /-off / 7 AN ORDINANCE AUTHORIZING SETTLEMENT OF THREATENED LITIGATION STYLED UNITED STATES OF AMERICA (ENVIRONMENTAL PROTECTION AGENCY) V CITY OF DENTON, ET AL, AUTHORIZING THE MAYOR OR THE MAYOR PRO TEM TO ACT ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS NECESSARY TO EFFECT SUCH SETTLEMENT UNDER THE TERMS SET FORTH IN THE ATTACHED ADMINISTRATIVE ORDER OF CONSENT, AND TO TAKE SUCH OTHER ACTIONS DEEMED NECESSARY TO FINALIZE THE ADMINISTRATIVE ORDER ON CONSENT, AND OTHER RELATED DOCUMENTS, AUTHORIZING THE EXPENDITURE OF FUNDS NECESSARY TO EFFECT THE SETTLEMENT IN AN AMOUNT NOT TO EXCEED $53,946, AND DECLARING AN EFFECTIVE DATE WHEREAS, the City of Denton and approximately 560 other de mammis potentially responsible parties ("PRP') throughout the United States have been offered a settlement in June 2001, prior to the institution of litigation, by the United States (Environmental Protection Agency) regarding a Superfund claim that arose in 1984-1985 as to the City respecting the placing of electric capacitors into the waste stream by the City by surrendering same to PCB, Inc in Denton, Texas pursuant to written contract, for proper disposal, WHEREAS, PCB, Inc then assumed care, custody, and control of said capacitors and eventually deposited them, along with millions of pounds of other capacitors, at sites in Kansas City, Kansas and Kansas City, Missouri Thereafter, several years later, PCB, Inc became involved in a bankruptcy case and was thereafter insolvent, leaving all aggrieved parties without recourse The United States of America (Environmental Protection Agency) later assumed jurisdiction over the sites and eventually found that considering the facts and the law, some 1,800 cities and electric utilities were PRP's The "response cost" has been determined by the United States (Environmental Protection Agency), the Steering Committee, and other parties to be in excess of $34,000,000, WHEREAS, the City Council, having been informed by its legal counsel in a Closed Meeting on tlus date, and otherwise, believes that it is in the best interests for the City of Denton to settle its de mmamis portion of these claims at this time, and to obtain a covenant not to sue on the part of the United States (Environmental Protection Agency), NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the settlement of threatened litigation styled United States of America (Environmental Protection Agency) v City of Denton, et al is hereby approved, and the Mayor or the Mayor Pro Tern is hereby authorized to execute an Administrative Order on Consent and other related documents deemed by the City Attorney or his designee, to be necessary to the settlement of said threatened litigation as set forth generally in the attached Administrative Order on Consent SECTION 2 That the City Manager is hereby authorized to expend an amount not to exceed $53,946 in settlement of the above threatened litigation SECTION 3 approval PASSED AND APPROVED this the 144 day of , 2001 That this ordinance shall become effective immediately upon its passage and ATTEST JENNIFER WALTERS, CITY SECRETARY 10 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY A W Byw. S \Our Dxu W\Ordinmcm\01\Un11Cd Su (EPA) SW=ml 3001 dm & c- - EULINE BROCK, MAYOR Page 2 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VII 901 NORTH FIFTH STREET KANSAS CITY, KANSAS 66101 IN THE MATTER OF PCB TREATMENT, INC ) SUPERFUND SITE ) 2100 Wyandotte Street ) Kansas City, Missouri ) 45 Ewing Street ) Kansas City, Kansas ) Proceeding under Section ) 122(g)(4) of the Comprehensive) Environmental Response, ) Compensation, and Liability ) Act of 1980, as amended, ) 42 U S C 9622 (g) (4) ) EPA Docket No CERCLA-07-2001-0008 ADMINISTRATIVE ORDER ON CONSENT I JURISDICTION 1 This Administrative Order on Consent ("Consent Order") is issued pursuant to the authority vested in the President of the United States by Section 122(g)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"), 42 U S C § 9622(g)(4), to reach settlements in actions under Section 106 or 107 of CERCLA, 42 U S C §§ 9606 or 9607 The authority vested in the President has been delegated to the Administrator of the United States Environmental Protection Agency ("EPA") by Executive Order 12580, 52 Fed Reg 2923 (Jan 29, 1987) and further delegated to the Regional Administrators of the EPA by the EPA Delegation No 14-14-E (issued Sept 13, 1987, modified by memorandum June 17, 1988) In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 2 This Administrative Order on Consent is issued to the parties listed in Attachment 1 ("Respondents"), attached to and incorporated into this Order Respondents agree to undertake all actions required by this Consent Order Respondents further consent to and will not contest the EPA's ]urisdiction to issue this Consent Order or to enforce its terms 3 EPA and Respondents agree that the actions undertaken by Respondents in accordance with this Consent Order do not constitute an admission of any liability by any Respondent Respondents do not admit, and retain the right to controvert in any subsequent proceedings other than proceedings to implement or enforce this Consent Order, the validity of the Findings of Facts or Determinations contained in Sections IV and V, respectively, of this Consent Order II STATEMENT OF PURPOSE 4 By entering into this Consent Order, the mutual obDectives of the EPA and Respondents are a to reach a final settlement between EPA and Respondents with respect to the Site pursuant to Section 122(g) of CERCLA, 42 U S C § 9622(g), that allows Respondents to make a cash payment, including a premium, to resolve their alleged civil liability under Section 107 of CERCLA, 42 U S C § 9607, for response costs incurred and to be incurred at or in connection with the Site, thereby reducing litigation relating to the Site, b to simplify any remaining administrative and 3udicial enforcement activities concerning the Site by eliminating a substantial number of potentially responsible parties from further involvement at the Site, and c to obtain settlement with Respondents for their fair share of response costs incurred and to be incurred at or in connection with the Site by the EPA Hazardous Substance Superfund, and by private parties, and to provide for full and complete contribution protection for Respondents with regard to the Site pursuant to Sections 113(f)(2) and 122(g)(5) of CERCLA, 42 U S C §§ 9613(f)(2) and 9622(g)(5) 2 In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 III DEFINITIONS 5 Unless otherwise expressly provided herein, terms used in this Consent Order that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in the statute or regulations Whenever the terms listed below are used in this Consent Order, the following definitions shall apply a "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U S C § 9601, et sec b "Consent Order" or "Order" shall mean this Administrative Order on Consent and all attachments attached hereto In the event of conflict between this Order and any attachment, the Order shall control c "Day" shall mean a calendar day In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day d "EPA" shall mean the United States Environmental Protection Agency and any successor departments, agencies or instrumentalities e "EPA Hazardous Substance Superfund" shall mean the Hazardous Substance Superfund established by the Internal Revenue Code, 26 U S C § 9507 f "Interest" shall mean interest at the current rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U S C § 9507, compounded annually on October 1 of each year, in accordance with 42 U S C § 9607 (a) 9 "Paragraph" shall mean a portion of this Consent Order identified by an Arabic numeral h "Parties" shall mean EPA and the Respondents 3 In the Matter of PCB Treatment, lnc Superfund Site, EPA Docket No CERCIM-07-2001.O008 1 "Respondents" shall mean those persons, corporations, or other entltaes listed an Attachment 1 3 "Response costs" shall mean all costs of "response" as that term ls defined by Section 101(25) of CERCLA, 42 U S C ~ 9601(25) k "Sectaon" shall mean a portaon of this Consent Order adentafaed by a Roman numeral 1 "Sate" shall mean the PCB Treatment, Inc Superfund Site, conslstang of two propertaes, one located at 45 Ewang Street in Kansas City, Wyandotte County, Kansas, and ats surrounding soils, and the other located at 2100 Wyandotte Street in Kansas Caty, Jackson County, Missouri and ats surroundang soils The legal description of each facllaty ms attached as Attachment 2 m "Unated States" shall mean the United States of Ameraca, ancludang its departments, agencies and anstrumentalltaes IV FINDINGS OF FACT 6 The Sate consasts of two bualdangs that were used by PCB Treatment, Inc and its subsadaarles or affallates to treat and store polychloranated blphenyls ("PCBs") present an used transformers, capacitors, and other materials and equipment 7 PCB Treatment, Inc and Its subsidiaries or affiliates operated at 2100 Wyandotte Street in Kansas Caty, Missouri, from 1982 through 1987 and at 45 Ewang Street in Kansas City, Kansas from 1984 through 1987 8 The treatment and storage of materaals contamanated with PCBs resulted an the release or threat of release of PCBs at both the Wyandotte Street and the Ewang Street locations 9 As a result of the release or threatened release of hazardous substances at the Sate, EPA conducted response actaons, lncludang the oversight of partaes performang a Site Characterazataon (SC) and Enganeerlng Evaluataon/Cost Analysis (EE/CA) pursuant to Admanastratave Order on Consent, EPA Docket 4 In the Matter of PCB Treatment, Inc. Superfund Site, EPA Docket No CERCLA-07-2001-0008 No VII-96-F-0018, from 1995 to the present This work was performed pursuant to Section 104 of CERCLA, 42 U S C § 9604, and the National Contingency Plan, 40 C F R § 300 415 On the basis of all Site information available to EPA, including the results of the SC and EE/CA, EPA determined that further response actions were necessary to address the release and threatened release of hazardous substances from the Site 10 In performing response actions, the United States incurred approximately $2,000,000 in costs to date EPA estimates that approximately $16,000,000 will be incurred in performing further response actions at Wyandotte Street and approximately $19,000,000 will be incurred in performing further response actions at Ewing Street 11 Each Respondent listed in Attachment 1 generated or transported materials contaminated with hazardous substances that were sent to PCB Treatment, Inc 12 The number of pounds of materials generated or transported by each Respondent does not exceed 733,190 allocated pounds, or eight -tenths of a percent ( 8%) of the allocated weight of all materials containing hazardous substances sent to PCB Treatment, Inc for disposal, and the hazardous substances contributed by each Respondent to the Site are not significantly more toxic or of significantly greater hazardous effect than other hazardous substances at the Site 13 The payment required to be made by each Respondent pursuant to this Consent Order is a minor portion of the United States' costs V DETERMINATIONS 14 Based upon the Findings of Fact set forth above and on the administrative record for this Site, the EPA has determined that a. Each building making up the Site is a "facility" as that term is defined in Section 101(9) of CERCLA, 42 U S C § 9601(9) 5 In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 b Respondents are each "persons" as that term is defined in Section 101(21) of CERCLA, 42 U S C § 9601(21) c Each Respondent is a "potentially responsible party" within the meaning of Section 122(g)(1) of CERCLA, 42 U S C § 9622 (g) (1) d PCBs are "hazardous substances" within the meaning of Section 101(14) of CERCLA, 42 U S C 9601(14) and the NCP, 40 C F R 302 4 e There has been an actual or threatened "release" of a "hazardous substance" from the Site as those terms are defined in Section 101(22) and (14) of CERCLA, 42 U S C §§ 9601(22) and (14) f The actual or threatened release of hazardous substances at the Site has caused and will continue to cause the incurrence of response costs at the Site g Prompt settlement with Respondents is practicable and in the public interest within the meaning of Section 122(g)(1) of 42 U S C § 9622 (g) (1) h As to each Respondent, this Consent Order involves only a minor portion of the response costs at the site within the meaning of Section 122(g)(1) of CERCLA, 42 U S C § 9622(g)(1) i Respondents are eligible for a de minimis settlement pursuant to Section 122(g)(1)(A) of CERCLA, 42 U S C § 9622(g)(1)(A) The amount of hazardous substances contributed to the Site by each Respondent and the toxic or other hazardous effects of the hazardous substances contributed to the Site by each Respondent is minimal in comparison to other hazardous substances at the Site within the meaning of Section 122(g)(1)(A) of CERCLA, 42 U S C § 9622(g)(1)(A) 11 In the Matter of PCB Treatment, Inc Superfund Stte, EPA Docket No CERCLA-07-2001-0008 VI ORDER 15 Based upon the administrative record for this Site and the Findings of Fact and Determinations set forth above, and in consideration of the promises and covenants set forth herein, it is hereby AGREED TO AND ORDERED VII PAYMENT 16 Within thirty (30) days of the effective date of this Consent Order, Respondents shall each pay one of the two amounts designated on the same line as their name appears in Attachment 1 17 Each Respondent's payment includes an amount for a) past response costs incurred in performing a Site Characterization and Engineering Evaluation/Cost Analysis at the Site, b) future response costs to be incurred at or in connection with the Site, and b) a premium to cover the risks and uncertainties associated with this settlement 18 As shown in Attachment 1, Respondents shall pay either a fifty percent (50%) premium with a cost overrun reopener if the removal costs exceed $60,000,000 or a one hundred percent (100%) premium with no cost overrun reopener Regardless of which premium Respondents select, all Respondents are subject to the reopeners described in Section XI (Reservation of Rights by the United States) If the cost overrun premium is triggered, Respondents who chose the fifty percent (50%) premium shall pay a percentage of the costs over $60,000,000 equal to their percent of the total allocated weight of all materials containing hazardous substances sent to PCB Treatment, Inc for disposal 19 The total amount to be paid by each Respondent pursuant to Attachment 1 shall be deposited in the "PCB Treatment, Inc 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 transferred by EPA to the EPA Hazardous Substance Superfund Each check shall reference the name and address of the party making the payment, the PCB Treatment, Inc Superfund Site name, EPA 7 In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 Region VII, the Site Spill ID Numbers 07RJ and 07RK, and the EPA Docket Number for this action and shall be sent to Hazardous Substances Superfund United States Environmental Protection Agency Attention Region VII, Superfund Accounting Post Office Box # 360748M Pittsburgh, PA 15251 20 Respondents shall simultaneously send a copy of the check to Ms Norma Tharp, Legal Assistant - Office of Regional Counsel, U S Environmental Protection Agency, Region VII, 901 N Fifth Street, Kansas City, Kansas, 66101 VIII FAILURE TO MAKE PAYMENT 21 If any Respondent fails to make full payment within the time required by Paragraph 16, that Respondent shall pay Interest on the unpaid balance In addition, if any Respondent fails to make full payment as required by Paragraph 16, the United States may, in addition to any other available remedies or sanctions, bring an action against that Respondent seeking injunctive relief to compel payment and/or seeking civil penalties under Section 122(1) of CERCLA, 42 U S C 9622(1), for failure to make timely payment IX CERTIFICATION OF RESPONDENT 22 By signing this Consent Order, each Respondent certifies, individually, that, to the best of its knowledge and belief, it has a conducted a thorough, comprehensive, good faith search for documents, and has fully and accurately disclosed to EPA all information currently in its possession, or in the possession of its officers, directors, employees, contractors or agents, which relates in any way to the ownership, operation, generation, treatment, transportation or to the ownership, possession, generation, treatment, transportation, storage or disposal of hazardous substances, pollutants, or contaminants at or in connection with the Site, 0 In the Matter of PCB Treatment, Inc. Superfund Site, EPA Docket No CERCLA-07-2001-0008 b not altered, mutilated, discarded, destroyed or otherwise disposed of any records, documents, or other information relating to its potential liability regarding the Site since receipt of any information request letter from the EPA pursuant to Section 104(e) of CERCLA, 42 U S C § 9604(a), notification of potential liability by EPA, or any other correspondence between EPA and Respondent regarding the Site; C. fully complied with any and all EPA requests for information regarding the Site pursuant to Sections 104(e) of CERCLA, 42 U S C § 9604(e), and d has not contributed an allocated weight of more than 733,190 pounds of materials to PCB Treatment, Inc for disposal between 1982 and 1987 Provision of false, fictitious, or fraudulent statements or representations to the United States may subject any Respondent to criminal penalties under 18 U S C § 1001 X COVENANTS NOT TO SUE 23 In consideration of the payments that will be made by Respondents under the terms of this Consent Order, and except as specifically provided in Section XI (Reservations of Rights by United States), the United States covenants not to sue or take administrative action against Respondents for any and all civil liability for injunctive relief or reimbursement of response costs pursuant to Sections 106(a) or 107(a) of CERCLA, 42 U S C §§ 9606(a) or 9607(a), relating to the Site 24 With respect to present and future liability, these covenants not to sue shall take effect upon receipt by the EPA of the payment as required by Paragraph 16, including any Interest due under Paragraph 21 These covenants not to sue Respondents are conditioned upon the complete and satisfactory performance by Respondents of all obligations under this Consent Order, and the veracity of the information provided by and certifications made by Respondents to EPA relating to Respondents' involvement with the Site These covenants not to sue extend only to each Respondent and do not extend to any other person 0 In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 XI RESERVATIONS OF RIGHTS BY UNITED STATES In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 a any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U S C §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of law, b any claims arising out of response activities at the Site, and c any claim against the United States pursuant to Sections 107 and 113 of CERCLA, 42 U S C §§ 9607 and 9613, relating to the Site 28 Nothing in this Consent Order shall be deemed to constitute preauthorization or approval of a claim within the meaning of Section 111 of CERCLA, 42 U S C 9611, or 40 C F R 300 700(d) 29 Respondents covenant not to sue and agree not to assert any claims or causes of action against each other with regard to the Site including any or all claims pursuant to Sections 107 and 113 of CERCLA, 42 U S C §§ 9607 and 9613 XIII EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION 30 Nothing in this Consent Order shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Consent Order The United States and Respondents each reserve any and all rights (including, but not limited to, any right to contribution), defenses, claims, demands, and causes of action which 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 31 In any subsequent administrative or Dudicial proceeding initiated by the United States for in3unctive relief, recovery of response costs, or other relief relating to the Site, Respondents shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res Dudicata, collateral estoppel, issue preclusion, claim -splitting, or other defenses based upon any contention that the claims raised in the subsequent proceeding were or should have been brought in the 11 In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 instant action, provided, however, that nothing in this Paragraph affects the enforceability of the covenant not to sue included in Paragraph 23 32 The Parties agree that each Respondent is entitled, as of the effective date of this Consent Order, to protection from contribution actions or claims as provided by Sections 113(f)(2) and 122(g)(5) of CERCLA, 42 U S C §§ 9613(f)(2) and 9622(g)(5), for "matters addressed" in this Consent Order The "matters addressed" in this Consent Order are all response actions taken by the United States, and all response costs incurred and to be incurred by the United States and by private parties, at or in connection with the Site XIV PARTIES BOUND 33 This Consent Order shall apply to and be binding upon EPA and upon Respondents and their heirs, directors, officers, employees, agents, successors, and assigns Any change in ownership or corporate or other legal status of a Respondent, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter such Respondent's responsibilities under this Consent Order Each signatory to this Consent Order certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Order and to execute and bind legally the Respondents represented by him or her XV INTEGRATION/ATTACHMENTS 34 This Consent Order and the Attachments constitute the final, complete and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this Consent Order The Parties acknowledge that there are no representations, agreements or understandings relating to the settlement other than those expressly contained in this Consent Order and Attachment 1 12 In the Matter of PCB Treatment, Inc. Superfund Slte, EPA Docket No CERCLA-07-2001-0008 XVI PUBLIC COMMENT 35 This Consent Order shall be subDect to a thirty (30) day public comment period pursuant to Section 122(1) of CERCLA, 42 U S C § 9622(1) In accordance with Section 122(1)(3) of CERCLA, 42 U S C § 9622(1)(3), the EPA may withdraw or modify its consent to this Consent Order if comments received disclose facts or considerations which indicate that this Consent Order is inappropriate, improper, or inadequate XVII ATTORNEY GENERAL APPROVAL 36 Before commencement of the thirty (30) day public comment period, the Attorney General or his designee must approve the settlement embodied in this Consent Order in accordance with Section 122(g)(4) of CERCLA, 42 U S C § 9622(g)(4) XVIII EFFECTIVE DATE 37 The effective date of this Consent Order shall be the date upon which EPA issues written notice to Respondents that the public comment period pursuant to Paragraph 35 of this Consent Order has closed, that the Attorney General or his designee has approved the settlement pursuant to Paragraph 36, and that comments received, if any, do not require modification of or the EPA withdrawal from this Consent Order IN WITNESS WHEREOF, the parties have affixed their signatures on the following pages 13 In the Matter of PCB Treatment, Inc Superfund Site, EPA Docket No CERCLA-07-2001-0008 IT IS SO AGREED AND ORDERED For the U S Environmental Protection Agency A drey As r Senior As istant Regional Counsel U S Environmental Protection Agency Region VII William Rice (/ Acting Regional Administrator U S Environmental Protection Agency Region VII 14 i DateO C4 Date 09/16/2001 13 52 9403498120 DENTON UTIL ADMIN PAGE 04 Zn the Matter --of 'P B Treatment.Inc,. Sun rfunA Site Proceeding Under Section 122(g)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U S.0 9 9622(g)(4) DENTON, CITY OF ,Denton, TX For Respondent! Signature Print name and title below Name.- GjiLI ya Rpixk Title-" MAYOR� II��ron4 %rio Le -.p 1&A. YV Date 1 b V1 N O r Vi D\ ED N �D O O O1 ti 8 1\D!t W ���ttt M h r V°ii ���000 b �l N el' N oG N O ti �p ep �p .r f V M O °� N » O .• Vi �/1 n b9 M �n 6'! O� N 69 �D M 69 N 00 N r 00 vl N 69 69 fA N N a M FA .+ 69 �-• 69 fA fo% b9 69 69 b9 fA 6s 69 69 69 b9 69 69 69 A g O O O O O O O O O O O b O O O O� O N O O O OR, O O N�p� O O C O e��\M+ O O � O O O � O U 0 n r n r r N r r oo r �G r oo r 0 0 0 0 0 0 0 0 h O O O O O O O O O O O O O O O O O O 0 epp o o e opp o � o 0 o e o 0 0pp o 0pp o 0pp o o � o 0 opppp�� e o 0 O O O O O O O O O O O O O O O O O O O O O O O O O O O W °� W 00 .. 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