Exhibit_F_-_19th_Ave_LF_Consent_Decree.pdf

19TH AVENUE LANDFILL

CONSENT DECREE

. BETWEEN THE

STATE OF ARIZONA

AND THE

CITY OF PHOENIX

I

I

L~¼. P~L ~~(lhru,. ~o. co47~

~~ ~. a."L. ~5007

·6~.;2 - lk:,to IN THE UNITED STATES

~ ~-c.,O)l.o _ FOR THE DISTRICT

STATE OF ARIZONA and ) STATE OF ARIZONA ex. r el. ) Randolph Wood, Directo r , Arizona ) Department of Environmental ) Qua.Li ty, )

Plaintiff, )

v. )

CITY OF PHOENIX, ARlZONA, )

Defendant. )

_FILED

1-

-.-LO0GEq . _RECEIVED popy \

JUN 1 R 190~

L DISTRICT OF ARIZONA

\ CLERK u s DISTRICT COURT II

UY DEPUTY

DIS 4 ----------

OF ARIZONA

c_ 1 V _ .f q. 1 <<..JG -~Ii ll'. - C rt IL <_

No. CIV 91-0237 PHX RG1b

CONSENT DECREE AND

AGREEMENT BETWEEN THE

STATE OF ARIZONA AND THE

CITY OF PHOENIX, ARIZONA

Section

I.

II.

III.

IV.

v.

VI.

VII.

VIII.

IX .

x.

XI .

XII.

XIII.

XIV.

xv.

XVI.

XVII.

XVIII.

XIX.

xx.

XXI.

XXII.

XXIII.

TABLE OF CONTENTS

Title Page

Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l

Jurisdiction

Parties

Binding Effect

Purpose

Definitions

Specific Obligations of the City for

Response Activities

Work to Be Performed

Takeover of the Work

Additional Work

Compliance With Applicable Laws and Regulations .. 19

Contingency Plan

Review and Approval of Submittals

Worker Health and Safety Plan

Quality Assurance/Quality Control

Periodic Review to Assure Protection

Project Coordinators

Access

Sampling and Data Availability

Retention of Records

Progress Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4

Notification

Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 i

839 FH003017Z BV7

Sec tion

XXIV.

xxv.

XXVI.

XXVII.

XXVIII .

XXIX.

XXX.

XXXI .

XXXII .

XXXIII .

XXXIV.

XXXV.

XXXVI.

XXXVII.

XXXVIII.

XXXIX.

XL.

XLI.

XLII.

XLIII.

XLIV.

XLV.

XLVI.

XLVII.

XLVIII.

Ti t.le

Ex tens ions

Response Authority

Endangerment and Emergency Response

Recovery of Expens es

Oversight Cos t s

Covenant Not to sue and Release

Reservation of Rights

Stipulated Penal ties

Force Maj eure

Dispute Resolution

Permits

Indemni f 1 cat ion

Claims Against the Fund

Contribution Protection

Other Claims

Community Relations

Lodging and Public Participation

Conveyance of Title

Effective Date

Retention of Jurisdiction

Termination

Amendment of Decree

Rights In Event of Failure to Obtain

Page

4 1

4 3

4 4

4 7

4 9

6 2

Court Approval sect ion Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5

Authorization ii

939 PH0030172 BV7

Table 1

Table 2

Table 3

Table 4

Page

Groundwater: Physical Parameters

Groundwater : Inorganics and Other Constituents

Groundwater: Selected Metals

Existing Monitor Wells

Appendix A Groundwater Monitoring Program

Appendix B Contingency Plan Threshold Levels

Exhibit 1

Exhibit 2

839 PH0030172 BV7

U.S. EPA Record of Decision

ADEQ Letter of Determination iii

I. RECITALS.

A. WHEREAS, the State of Ar i zona ("State " ) , on its own behalf and on behalf of the Director of the Arizona Department of

Environmental Quality ( "ADEQ") , has filed a Complaint against the

City of Phoenix (the "City") in this lawsuit pursuant to the

Comprehensive Environmental Response , Compensation , and Liability

Act ("CERCLA"), 42 u.s.c. § 9601 et seg. , as amended by the

Superfund Amendments and Reauthorization Act of 1986 ("Sf..RA") , Pub . L. No. 99-499 ("CERCLA"), seeking relief, inter alia , in t he form of a declaratory judgment, to ensure performance of remedial actions, and to reimburse the state for removal, remedial, and response costs that have been incurred and will be incurred by the State in response to releases and threatened releases of hazardous substances from a facility known as the 19th Avenue

Landfill, as defined herein (the "Site") ; and

B. WHEREAS, the State alleges that releases of hazardous substances have occurred at this Site, that the Site is a "facility" as defined in Section 101(9) of CERCLA, 42 u.s.c.

S 9601(9), and that the City is a liable party pursuant to

Section 107(a) of CERCLA, 42 u . s.c . S 9607(a); and

C. WHEREAS, in 1983 the United States Environmental

Protection Agency ("EPA") listed the 19th Avenue Landfill Site on the National Priorities List ("NPL") pursuant to CERCLA, by publication in the Federal Register on September 8, 1983 (48 Fed.

Reg . 40,658); and

D. WHEREAS, Pursuant to Section 104(d)(l) of CERCLA, 42 u.s.c. § 9604(d)(l), EPA has designated ADEQ as the lead

839 FHC\~3017 BV6

agency with authority to plan and implement response actions under the National Contingency Plan ("NCP"), 40 c.F.R. Part JOO, including enforcement activities related to removal and remedjal actions, at the 19th Avenue Landfill; and

E. WHEREAS, in conjunction with the state and EPA, the

City undertook a Remedial investigation and Feasibility Study

("RI/FS") to determine the nature and extent of the release and threat of release of hazardous substances at the Site and developed a Remedial Action Plan ("RAP") as a result thereof; and

F. WHEREAS, the final decision on the remedial action for the Site is embodied in a Letter of Determination ("LOO") issued by ADEQ on September 21, 1989 and a Record of Decision

("ROD") issued by EPA on September 29, 1989; and

G. WHEREAS, the State has determined that the remedial and response actions to be undertaken at the Site will be performed properly by the City; and

H. WHEREAS, the State and the City have filed a separate action under CERCLA, No. CIV 89-1700-PHX-CAM in this

District, against other private parties, alleging that such parties are also liable under 42 u.s.c. S 9607, and seeking relief, inter alia, in the form of a declaratory judgment, to ensure performance of remedial actions, and to reimburse the

State and the City for removal, remedial, and response costs that have been incurred and will be incurred by the State and the City in response to releases and threatened releases of hazardous substances from the Site; and

139 PHOOl017 BV6

I. WHEREAS, the State and the City have jointly moved to consolidate this action with Cause No. CIV 89-1700-PIIX-C~M;

and

J. WHEREAS, the state and City desire to establish certain rights and obligations between them with respect to claims that have arisen, might arise or be asserted in the future in connection with or relating to the Site, including but nut limited to those asserted or which could have been asserted in this lawsuit or in Cause No. CIV 89-1700-PHX- CAM; and

K. WHEREAS, the State and the City are authorized to compromise such claims; and

L. WHEREAS, the City does not admit, and retains the right to controvert in any contemporaneous or subsequent proceedings (other than proceedings related to the validity, implementation, or enforcement of this Consent Decree), the validity of the recitations contained in this Consent Decree; and

M. WHEREAS, the City and the State (the "Parties") agree that settlement of this matter and entry of this Consent

Decree are made in good faith in an effort to avoid further expenses of protracted litigation, without any admission of any liability for any purpose; and

N. WHEREAS, the City denies all allegations against the City in the Complaints and pleadings herein and in No.

CIV 89-1700-PHX-CAM not heretofore admitted; and

o. WHEREAS, the Parties agree that entry of this

Consent Decree and compliance therewith, including any payment of funds, shall not be taken or construed as an admission of

839 PH003017 BV6

liability for any purpose on any claim, and the fact of such participation shall not be construed as evidence of such liability in any judicial or administrative proceeding except Jn a proceeding to enforce the terms of this Consent Decree; and

P. WHEREAS, the Parties agree and the Court f i nds that the entry of this Consent Decree is in the public interest, is consistent with the NCP, will minimize litigation, and will result in the expedited remediation of the 19th Avenue Landfill;

and

Q. WHEREAS, the Parties, having consented to the issuance and entry of this Consent Decree, agree to be bound by the terms herein; and

R. WHEREAS, each undersigned representative of the

Parties to the Consent Decree certifies that he or she is fully authorized to enter into the terms and conditions of this Consent

Decree and to execute and legally bind such party to this document.

NOW, THEREFORE, IT IS ORDERED BY THE COURT AND AGREED BY

THE PARTIES AS FOLLOWS:

II. JURISDICTION.

The Court has jurisdiction over the subject matter of this action and over the signatories of this Consent Decree pursuant to Sections 107 and 113(b) of CERCLA, 42 u.s.c, SS 9607 and 9613(b), and pursuant to 28 u.s.c. §§ 1331 and 1345 . The

Parties shall not challenge the Court's jurisdiction to enter and enforce this Consent Decree.

139 PH003017 BV6

III. PARTIES.

The Parties to this Consent Decree are the State and the

City, as defined herein.

IV. BINDING EFFECT .

A. This Consent Decree shall apply to and be bind i ng upon the Parties, their successors, agents and assigns. Notice of this Consent Decree and the obligations contained herein sh~ll be provided to any successors, agents and assigns.

8. The City shall provide a copy of this Consent

Decree, as entered by the Court, and shall provide all relevant additions to the Consent Decree, as appropriate, to each person, including all contractors retained to perform the work contemplated by this Consent Decree, and shall condition any contract for the Work to Be Performed in compliance with this

Consent Decree. Notwithstanding compliance with this provision, the City shall be liable for any violation of Consent Decree requirements committed by its contractors, unless otherwise excused by the terms of this Consent Decree or by the state .

C. The terms of this Consent Decree are mutually enforceable by all signatories to this Consent Decree.

V. PURPOSE.

The purpose of this Consent Decree is to serve the public interest by protecting the public health, welfare, and the environment from releases and threatened releases of hazardous substances at the Site by expediting implementation of the Work to Be Performed and the Remedial Action, as defined herein. The

Parties stipulate and the Court hereby finds that the ADEQ Lett er of Determination ("LOO") and the EPA Record for Decision ( "ROD"), .

for purposes of this Consent Decree, are consistent with t he NCP, 40 C.F . R. Part 300. The ROD and LOD are set f orlh in Ex hibils l and 2 appended to this Consent Decree.

VI. DEFINITIONS.

Unless otherwise expressly provided herein, terms used in this Consent Decree which are defined in CERCLA or in the NCP, 40 C.F.R. Part 300 , shall have the meaning assigned to them under such statute or regulation as of the date this Consent Decree is entered by the Court. The following terms used in this Consent

Decree are defined as follows:

1. "ADEQ" shall mean the Arizona Department of

Environmental Quality.

2. "Business day" shall mean a day other than a

Saturday, Sunday, or state or federal holiday.

3. "CERCLA" shall mean the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986

("SARA"), Pub. L. 99-499, 101 Stat. 1613, codified at 42 U.S.C.

SS 9601 et seq.

4, "The City" shall mean the City of Phoenix, a political subdivision of the State of Arizona.

5. The "Clean Air Act" shall mean the Clean Air Act of

1970, 42 u.s.c. S 7401 et seg., as amended in 1974, 1979, and

1990.

839 PH003017 IV6

6. The "Clean Water Act" shall mean the Federal water

Pollution Act , as amended by the Clean Water Act of 1977 and as amended by the Water Quality Act of 1987, 33 u.s.c. § 1251 et seg.

7. "Contingency Plan" shall mean the groundwater

Contingency Plan set forth in Section XII and Appendix B hereto.

8. "Contractor" shall mean any individual, entity, company or companies retained by or on behalf of the City lo undertake and complete any portion of the Work to Be Performed and the Remedial Action. Each contractor and subcontractor shall be qualified to do those portions of the Work to Be Performed and the Remedial Action for which it is retained.

9. "Covered Matters" shall mean and include the

Remedial Action, the Work to Be Performed, all costs associated with the performance thereof, all Oversight Costs, including operation and maintenance costs, and all past, present, and future Response Costs, including any interest accrued on any of the foregoing with regard to the Site. In particular, "Covered

Matters" shall mean and include, without limitation:

a. Implementation of the Alternative A remedy, as set forth in the.· tetter of Determination and Record of Decision;

b. All removal, remedial, and response actions, past, present, and future, taken at or in connection with the

19th Avenue Landfill;

c. All costs, damages, claims, demands, and causes of action associated with the activities described in

Subsections A and B above, whether or not such costs, damages, claims, demands, or causes of action have been asserted or incurred in the past, exist now, or may arise or exist !n the future;

d. All demands, claims, and causes of acti on for natural resource injuries , damages, costs, and assessments

(including all damages or injury to, or destruction or loss of , natural resources), whether or not any such injuries , damages , costs, or assessments have been incurred in the past, exist now , or may exist in the future, arising out of the presence, handling, transportation, storage, treatment, disposal, rel ease , or threatened release of hazardous substances or wastes at, to, or from the 19th Avenue Landfill; and

e. All demands, claims, causes of action, costs, injuries, or damages incurred or to be incurred relating to air pollution, surface and sub-surface contamination, and surface water and ground water contamination arising out of or related to the presence, handling, transportation, storage, treatment, or disposal, or the arranging for the handling, storage, transportation, treatment, or disposal of substances or wastes, in any form or nature, or the release or threatened release of any substance or waste at, to, or from the 19th Avenue Landfill, including any claim arising under CERCLA, RCRA, the Clean Air

Act, the Clean water .Act, state law, common law, any city ordinance, or any other legal basis.

10. "Day" shall mean a calendar day unless business days are specified by any submitted or written notice; however should a deadline fall on a weekend or a federal or state

839 FH003017 JV6

holiday, the deadline will be construed to continue to the next day that is not a weekend, federal or state holiday.

11. "Decree" or "Consent Decree" shall refer to this document and shall include all submittals , attac hments , add enda , amendments and modifications to this document . All such submittals, attachments , addenda , amendments and modificati ons shall be incorporated into and become an enforceable part of thi s

Consent Decree.

12. "Lawsuit I" shall mean the action in the United

States District Court for the District of Arizona now captioned

State of Arizona and the City of Phoenix v. Motorola, Inc., et al., No. CIV 89-1700 PHX CAM.

13. "Lawsuit II" shall mean the action in the United

States District Court of the District of Arizona captioned State of Arizona; State of Arizona ex rel. Randolph Wood v. City of

Phoenix, Arizona, No. CIV-91-0237 PHX RGS.

14. "Letter of Determination" or "LOO" shall mean the

Letter of Determination concerning the Site issued by ADEQ on

September 21, 1989. A copy of the LOD is attached hereto as

Exhibit 2.

15. "National Contingency Plan" or "NCP" shall mean the plan promulgated pursuant to Section 105 of CERCLA, 42 u.s.c.

S 9605, published at 55 Fed. Reg. 8666 (1990) (effective April 9 , 1990), and codified at 40 C.F.R . Part 300, including any previous versions of and amendments thereto.

139 PH003017 IV6

16. "National Priorities List" or "NPL" shall mean the list established pursuant to Section 105 of CERCLA, 42 u.s .c.

Section 9605, and codified at 40 C.F.R. Part 300, Appendix n.

17. "19th Avenue Landfill" (also referred lo herein as the "Site") shall mean:

a. the 19th Avenue Landfill facility as formally added to the National Priorities List on September 8, 1983 and as described in Table 1.2 to the RAP, as defined herein;

b. All locations where any substances, whether hazardous or not, have come to be located that were originally deposited in or adjacent to the area described in Table 1.2 of the RAP; and

c. All locations where groundwater, surface water, soil, air, or any other natural resource has been impacted from the placement, migration, transportation or deposition of any substance originally placed, deposited, or disposed of in or adjacent to the area described in Table 1.2 to the RAP.

18. "Operation and Maintenance" or "O&M" shall mean all activities required under the City's Operation and Maintenance

Plans approved by the State pursuant to this Consent Decree .

19. "Oversight" shall mean the inspection and supervision of the Remedial Action and the Work to Be Performed and related activities and reports associated with the Site.

20. "Oversight Costs" shall mean all necessary costs incurred by the EPA, the State, or the City, not inconsistent with the NCP, after January 31, 1990, in undertaking Oversight as defined herein.

21. "Parties " shall mean the St ate and the City, as defined herein.

22. "RCRA" shall mean the Solid Waste Disposal ~ct , as amended by the Resource Conservation and Recovery Act, and the

Hazardous and Solid Waste Amendments of 1984, 42 u.s .c. §§ 690 1, et seq . , and all regulations and guidelines promulgated pursuant to the same.

2 3. "Record of Decision" or "ROD" shall mean the Reco r d of Decision concerning the 19th Avenue Landfill issued by Regi on

IX of EPA on September 29, 1989. A copy of the ROD is attached hereto as Exhibit 1.

24. "Remedial Action" shall mean the design and implementation of the Work to Be Performed generally described in the RAP (including the groundwater Contingency Plan as provided for in Section XII of this Consent Decree) the LOD, the ROD, and all other tasks to be performed at the Site by the City pursuant to this Consent Decree.

25. "Remedial Action Plan" or "RAP" shall mean the

"Remedial Action Plan for the 19th Avenue Landfill, City of

Phoenix," dated June 12, 1989, and amendments thereto.

26. "Response Costs" shall mean those costs, related to the 19th Avenue Landfill, incurred by the EPA, the State or the

City pursuant to CERCLA, not inconsistent with the NCP, and shall include but are not limited to all oversight, administrative, enforcement, removal, investigative and remedial or other direct or indirect costs related to the Site, and incurred prior to

January 31, 1990.

27. "Site" shall mean the 19th Avenue Landfill, as defined herein.

28. "State" shall mean the State of Arizona, including the Department of Environmental Quality , and Randolph wood , Director of the Arizona Department of Environmental Quality and the Designated Natural Resource Trustee for the state of ~rizona.

29. "U.S. EPA" and "EPA" shall mean the United States

Environmental Protection Agency.

30. "WQARF" shall mean the Water Quality Assurance

Revolving Fund legislation, A.R.S. §§ 49-281 through 287.

31 . "Work to Be Performed" shall mean those CERCLA response activities called for by the ROD and LOD and further detailed in Section VIII herein .

VII, SPECIFIC OBLIGATIONS OF THE CITY FOR RESPONSE ACTIVITIES.

A. The City shall design, implement and complete the

Work to Be Performed in accordance with the requirements of this

Consent Decree and time schedules set forth in Section XXIII .

The City shall develop and complete the Work to Be Performed in accordance with the standards, specifications and schedules set forth in this Consent Decree.

B. Notwithstanding any approvals related to this

Consent Decree, permits, or other permissions which may be granted by the State of Arizona or any other governmental entity, the Parties acknowledge and agree that such approvals or permissions do not constitute a warranty by the State or any other governmental entity that the Work to Be performed pursuant to this Consent Decree will achieve the treatment goals and objectives of the RAP and this Consent Decree.

c. It is the intent of the State and the City to seek recovery of not less than 80\ of the costs of the Work to Be

Performed, the Remedial Action, and associated Response costs, and all future Oversight Costs and enforcement and litigation costs, from persons who are defendants in Lawsuit I and who have not resolved their liability with regard to the Site.

Accordingly, the City hereby agrees to, as set forth herein,

(i) assume responsibility for 20\ of the Work to Be Performed, the Remedial Action, and associated Response Costs and, additionally, (ii) to fund and/or perform the remainder of the

Work to be Performed, Remedial Action, Response Costs, and

Oversight Costs, in the event that the State and City are unable to either (a) obtain a Court ruling in Lawsuit I imposing at least 80\ of such liability on the non-settling parties, or (b) later obtain a settlement satisfactory to both the State and City from parties who have not settled their liability as of the effective date of this Consent Decree. Nothing in this subsection shall· otherwise excuse or delay performance by the

City of its obligations under this Consent Decree.

VIII. WORK TO BE PERFORMED.

The City shall perform the following work:

1. Refuse Washout Control.

The City shall design and construct:

939 PHOOJ017 BV6

A. A levee and bank protection system for Cells A and A-1 to provide containment of the refuse and protect the landfill from inundation in a 100-year flood event. The levee and bank protection system shall maintain the conveyance capacity of the Salt River for the 100-year flood event as officially delineated by the Federal Emergency Management Agency (''FEMA").

B. A grade-control structure in the channel of the Salt River to prevent general degradation of the river bed.

c . A storm drain outfall channel along 15th

Avenue to drain storm runoff, with a one-way drainage gate to prevent backup during flooding in the Salt River.

D. All plans and specifications for the above are to be reviewed and approved by the Maricopa County Flood Control

District, and notices issued in accordance with A.R.S. S 48-3610.

2. Surface water and Sediment Quality Protection.

The City shall design and construct:

A. A single-layer compacted soil cap over Cells A and A-1, consisting of at least one foot of existing soil and three feet of clean compacted soil, with a surface slope of two percent to direct surface water toward the perimeter of the site and away from the landfill. The soil cap shall (i) have a permeability of less than 10-4 centimeters per second and (ii) comply with the criteria for issuance of any applicable air quality permit(s) in accordance with the A.R.S. SS 49-426 and 49-

427.

B. Surface drainage and outfall structures.

3. Groundwater Quality Protection.

The City shall :

A. Operate and maintain a groundwater moni t or. in y program as described in Appendix A to this Consent Dec ree , which includes quarterly groundwater sampling, anal ysis and repo r t i ng obligations for the constituents identified in Tables 1 throug h

3.

B. Submit for review and approval a quality assurance/ quality control ("QA/ QC") plan for the sampling of groundwater. The plan shall be developed in accordance with the

ADEQ Quality Assurance Project Plan (December, 1989 ) .

c. Be responsible for the maintenance and replacement of all components of the groundwater monitoring well network.

D. Be responsible for implementing the

Contingency Plan as set forth in Section XII of this Consent

Decree.

4. Methane Gas Control and Ambient Air Quality

Protection.

The City shall:

A. Design and construct a gas collection and disposal system, which shall include the rehabilitation and / or installation of gas monitor and collection wells and flare or filter equipment.

------ -- -4 - --

B. Continue to monitor on a monthly basis landfill gas migration, utilizing the existing gas monitoring probes at the perimeters of Cells A and A-1.

939 PH003017 IV6

C. Submit a schedule for the installation of a gas collection system if the lower explosive limit is reached for landfill gases at the boundary of either Cells A or A-1 without a gas collection system.

D. Within six months of the entry of this Consenl

Decree, the City shall apply to the ADEQ Office of Air Quality for an installation permit in accordance with A.R.S. §§ 49 - 426 and 49-427. The City shall obtain the permit prior to commencement of construction of the cap specified in Section

VIII(2)(A).

s. Site Requirements.

The City shall design and construct:

A. A chain link fence, at least six feet high, around the perimeter of the Site in order to prevent trespass .

B. A plan for landscaping outside the perimeter fence along 19th Avenue. The landscaping plans shall not jeopardize the integrity and effectiveness of the soil cap provided for in Subsection 2.

6. Operation and Maintenance.

The City shall appropriately operate and maintain the components of the work to Be Performed during the duration of the

Consent Decree.

IX. TAKEOVER OF THE WORK.

A. In the event that the State determines that the

City has failed to implement or perform any portion of the Work to Be Performed or has performed a portion of the work in an inadequate or untimely manner for reasons not deemed a force

839 PH003017 •v6 majeure under Section XXXII, the State may assume performance of all or a portion of the Work to Be Performed. Except as necessary to address an imminent and substantial endangerment t o human health or the environment, the State will provide the

City's Project Coordinator with ten (10) calendar days ad vance notice of intent to take over a portion of or all of the Work t o

Be Performed. If the City disagrees with the State's determination, the City must, within seven (7) calendar days of receipt of the notice, invoke the Dispute Resolution provisions of this Consent Decree.

B. The City shall not be liable for any stipulated penalties for failure to complete such portion of the work to Be

Performed that is taken over by the state. The City shall be liable for stipulated penalties as designated by Section XXXI prior to notice of takeover of Work to Be Performed by the state.

C. If the State takes over the Work to Be Performed pursuant to this Section, the City shall pay to the State a takeover-of-work penalty equal to three times the amount of costs incurred by the State in performance of all such work to Be

Performed within sixty (60) calendar days of receipt of demand for payment of such amount. The State may demand payment for costs, which amount shall be tripled, under this Section any time after costs are incurred.

D. By invoking Dispute Resolution, the City may contest whether the State properly determined that the requirements for State takeover of Work to Be Performed were satisfied; provided, however, that invoking Dispute Resolution

839 FH003017 IV6

s does not stay the State's right to perform the Work. If , prior to performance of the Work, the State determines that its concerns will be resolved satisfactorily , the state shall withdraw its advance notice of intent to perfo rm a portion o r all of the Work to Be Performed , and the City shall re sume performance of such Work to Be Performed.

E. If the City invokes Dispute Resoluti on under th is

Section and if the result of the Dispute Resolution is a determination that the State properly took over performance of the Work to Be Performed, the City shall pay the takeover-of-work penalty, plus interest at the Federal Reserve prime lending rate in effect as of the date dispute resolution was invoked.

Interest shall accrue from the date of invocation of Dispute

Resolution. If the Dispute Resolution process determines that the City has not failed to perform a portion of the Work to Be

Performed as required by this Consent Decree, the City shall not pay any takeover-of-work penalty and may resume performance o f the Work to Be Performed.

F. No action taken pursuant to this Section shal l be construed as to relieve the City of its responsibility to fulfill the conditions and obligations of the Contingency Plan.

X. ADDITIONAL WORK.

A. In the event that any Party to this Consent Decree determines that additional work, or a modification to the Work t o

Be Performed (including investigatory work, engineering evaluation, and/or construction activities) is necessary to

839 FH003017 IV6

accomplish the objectives of any Work to Be Performed set forth in Section VII and VIII herein, notification of such additional

Work to Be Performed or modification of Work to Be Performed shall be provided to the other Party.

B. Upon agreement that such additional Work to Be

Performed or modification of Work to Be Performed is necessary, the City agrees to implement any such Work to Be Performed. If either Party does not agree that such additional Work to Be

Performed is necessary to accomplish the objectives of this

Consent Decree, either Party may invoke the Dispute Resolution procedures of of this Consent Decree.

c. Any additional Work to Be Performed or modification to the work to Be Performed agreed to or determined to be necessary pursuant to Subsection A above shall be set forth in a modification to this Consent Decree and shall be completed in accordance with the standards, specifications and schedules established in the amendment.

XI. COMPLIANCE WITH APPLICABLE LAWS AND REGUL~TIONS.

All activities that are taken by the City pursuant to this Consent Decree shall be undertaken in accordance with the requirements of all applicable federal, state and local laws and regulations, including Titles 45 and 49 of the Arizona Revised statutes, and "applicable" and "relevant and appropriate" federal, state, and local environmental requirements as provided in Section 12l(d) of CERCLA, 42 u.s.c. S 962l(d). Activities conducted in compliance with this Consent Decree shall be deemed in compliance with the NCP.

XII. CONTINGENCY PLAN.

A. Consistent with Appendix B to the RAP , the City shall be responsible for undertaking the work necessary under this groundwater Contingency Plan. In accordance with Section

12l(d) of CERCLA , 42 U.S.C. § 962l(d), the Contingency Plan shall become effective following completion of construction of the Wor k to Be Performed and issuance by the State of written approval of completion of construction.

B . Prior to the effective date of the Contingency

Plan , ADEQ reserves the right to respond to any imminent and substantial endangerment to public health, welfare or the environment resulting from a release or the threat of release of hazardous substances into waters of the State and to seek recovery of the costs of any response actions taken by ADEQ against any responsible party, including the City and the parties to Lawsuit I.

c. The Contingency Plan will be triggered when the following conditions are present in any demonstrably downgradient well or wells (boundary or off site) in the groundwater monitoring network, as those conditions are reflected in the quarterly monitoring reports required under Subsection VIII(J)(A) of this Consent Decree:

1 • The average of three (3) consecutive quarterly samples of a constituent in a well exceeds the threshold level for that constituent ("Exceedance Condition"); and

2. ~ follow-up groundwater sample analyzed by a state-certified laboratory (or another laboratory acceptable to

5 -

ADEQ) on a priority basis confirms that the exceedance condition has occurred (the "Trigger").

D. The project manager for the City shall notify the

ADEQ project manager of any exceedance condition by means of a

Transmittal Letter which accompanies the groundwater quarterly monitoring report and give notice of the date and time f or the collection of the follow-up groundwater sample. The follow-up groundwater sample, with a split sample to be provided to ~DEQ, shall be collected by the City within five (5) days of receipt by

ADEQ of the results which indicate an exceedance condition. The analytical results from the follow-up groundwater sample shall be reported to the State in writing within ten (10) working days of sample collection.

E. For purposes of Subsection XII(C):

1. "Constituent" means those constituents for which quarterly sampling is required in Subsection VIII(3)(A) of this Consent Decree, and does not include additional constituents described in Appendix A, paragraphs. Notwithstanding the foregoing, ADEQ reserves the right to evaluate the concentration levels of those constituents required to be reported annually as required in Appendix A, Paragraph 5, and to require further additional monitoring, remedy analysis or response action if those concentration levels endanger public health, welfare or the environment. >,

2. "Threshold level" means that level for a constituent set forth in Appendix B hereto.

F. Should an exceedance occur and the Contingency Plan .

be triggered, the City will commence a process of evaluation of an appropriate response action. The Contingency Plan response actions, depending upon the circumstance(s), may include but not be limited to continued monitoring only, to groundwater treatment with the point of compliance designated to be the Site boundary as defined in the RAP. The Parties agree that any evaluation of additional response action may include consideration of the quality of groundwater upgradient of the Site. The Parties further agree that the City shall have no obligation to clean up any release not attributable to the Site, provided that the City demonstrates by a preponderance of hydrogeologic data or other credible evidence that the release has entered the Site from an upgr.adient direction.

G. The Contingency Plan response options will be evaluated based on selection criteria which must utilize the Safe

Drinking Water Act Maximum Contaminant Levels ("MCLs") and the

Arizona Aquifer Water Quality Standards as groundwater cleanup standards, and Arizona Surface water Quality standards as surface water cleanup standards, and shall be consistent with the requirements of CERCLA, the NCP, the Arizona Environmental

Quality Act and any criteria contained in the Arizona Groundwater

Management Act for making beneficial end use of any treated groundwater. Any groundwater remediation selected shall be protective of human health and the environment.

H. Following confirmation of an exceedance condition, the City will begin a monthly schedule of sampling of the affected well(s) for the exceeding constituent(s). Such sampling will be in addition to the r outine quarterly groundwater qual i ly sampling program set forth in Appendix A of this Consent Dec ree .

I. Within thirty ( 30 ) days of a trigger of the

Contingency Plan as described in Section XII , the City s ha l l submit an "Exceedance Report" describing the c i rcumstances o f t he exceedance. Based on the Exceedance Report , ADEQ shall info rm the City in writing whether to proceed with additional

Contingency Plan analysis. This written notification shall contain a short description of the basis of the department's decision to proceed or not proceed with additional analysis.

J. If ADEQ determines that additional analysis is required, the City shall submit within thirty (30) days of such determination a report describing the current factual circumstances, the anticipated potential response actions to be screened, screening methods, and anticipated evaluation criteria based upon the criteria set forth in this Section (the

"Groundwater Response Report"). Upon review of the Groundwa t er

Response Report, ADEQ shall inform the City in writing whether or not to proceed with additional Contingency Plan analysis .

K. If ADEQ determines that additional analysis is required, the City shall submit within ninety (90) days of such determination a Draft Groundwater Remedial Plan ~hich evaluates the potential response actions in light of the criteria set forth in this Section and which describes the selection of a proposed remedial action. The Draft Groundwater Remedial Plan shall be considered as an amendment to the RAP. The City shall also submit at this time an updated report on the factual circumstances of the exceedance condition.

L. ADEQ shall review the Draft Groundwater Remed i al

Plan in light of the criteria set forth in this Sec t ion and shal l concur or not concur with the draft report and the proposed remedial action to be selected. Should ADEQ not concur with the

City 's recommendation, the matter shall go to Dispute Resolu tion as provided in Section XXXIII of this Consent Decree. The standard of review of the ADEQ's decision to request additional analysis pursuant to this Section and of ADEQ's selection of a remedial action shall be governed by the standards of 42 u.s.c.

S 9613. Should ADEQ concur with the City's selection of remedy, within thirty (30) days of ADEQ's approval of the Draft

Groundwater Remedial Plan, the City shall submit a Final Draft

Groundwater Remedial Plan in accordance with the criteria set forth in A. A.C. Rl8-7-08. The Final Draft Groundwater Remedial

Plan may be subject to appropriate public review and comment as required under CERCLA, the NCP and the Arizona Environmental

Quality Act.

M. Not later than 10 days after the Final Groundwater

Remedial Plan is approved by ADEQ, the City shall initiate negotiations with ADEQ to develop a schedule for the prompt implementation of the selected response action. The schedule shall include, as appropriate, enforceable performance and submission dates, including timetables for: (1) issuance of bids;

(2) contract awards; (3) submission to ADEQ of preliminary and final designs; (4) initiation of construction; (5) periodic progress reports; and (6) initiation date(s) for the selected response action(s).

N. The schedules, upon approval by ADEQ, shall be incorporated into this Consent Decree and shall provide for a schedule of stipulated penalties for noncompliance by the City with the schedule's terms and conditions.

o. Should ADEQ and the City fail to reach agreement on any key element of the schedule, ADEQ may, at its option, exercise any and all remedies available to it under CERCLA or

Title 49 or this Consent Decree, including, without limitation, assessing penalties, enforcing the provisions of this Consent

Decree, or implementing the selected response action and recovering its costs and damages from the City.

P. Notwithstanding the above provisions, subject to the approval of ADEQ, the City may terminate activities under the

Contingency Plan, if the three (3) most recent, consecutive monthly samples in the affected well(s) disclose the absence of an exceedance condition of the triggering constituent or its degradation by-product. ADEQ shall not withhold such approval unless ADEO can demonstrate by a preponderance of the evidence that continued activities under the Contingency Plan are necessary for protection of public health and the environment.

XIII, REVIEW AND APPROVAL OF SUBMITTALS.

A. The review of each submittal, document, report, workplan, schedule, or proposed modification (collectively referred to hereafter as "Submittal'') which the City is required to be submitted to and reviewed by ADEQ shall ue as follows:

1. ADEQ shall review each Submittal made by the

City as required by this Consent Decree and shall notify the City in writing of its approval, disapproval, or modification of the

Submittal. ADEQ shall use its best efforts to review and comment on submitted documents in a timely manner. In the event the

Submittal is approved, it shall become an integral and enforceable part of this Consent Decree. In the event the

Submittal is disapproved in whole or part, ADEQ shall notify the

City of the disapproval and give an explanation of why the submittal is being disapproved.

2. If a Submittal has been disapproved, the City shall have ten (10) working days from the receipt of the disapproval to correct any deficiencies and resubmit the

Submittal. In correcting the disapproved Submittal, each deficiency shall be ·separately listed and addressed. Stipulated penalties shall not accrue until after the time for resubmission.

3. If the Submittal is still deficient after resubmission, the City shall be in violation of this Consent

Decree and stipulated penalties shall commence to accrue the day after notification of the deficiency to the City until the deficiencies are corrected and an approval is obtained.

4, All Submittals or modifications thereto shall be technologically feasible and in accordance with sound engineering practices.

839 PH0O3017 IV6

5. ADEQ and the City shall provide the opportunity to consult with each other during the review of

Submittals or modifications.

6. Submittals shall be made in accordance with the Schedule shown in Section XXIII.

XIV. WORKER HEALTH l\ND SAFETY PLl\N.

The Worker Health and Safety Plan that the City will be required to submit pursuant to Section VIII of this Consent

Decree {Work to be Performed) shall satisfy applicable

Occupational Safety and Health Act {OSHA) requirements and EPA's

Standard Operating Safety Guides.

XV. QUALITY ASSURANCE/QUALITY CONTROL.

A. The City shall submit to ADEQ for approval, at the same time as it submits the ninety percent {90%) plans and specifications as set forth in Section XXIII(4) ("Schedule"), a

Quality Assurance/Quality Control {"QA/QC") Plan for Remedial

Action activities. The QA/QC Plan shall, where applicable, be prepared in accordance with current EPA guidance, Interim

Guidelines and Specifications for Preparing Quality Assurance

Project Plans, QAMS-005/80, Data Quality Objective Guidance

(EPA/540/G87/003 and 004), and amendments to such guidelines.

Upon approval and notice by ADEQ to the City, the City shall implement the QA/QC Plan. If appropriate, the City may submit the Site's existing QA/QC Plan or a modification thereof.

B. The City shall utilize QA/QC procedures in accordance with the QA/QC plans submitted pursuant to this

Consent Decree, and shall utilize standard u.s. EPA chain of

939 PH003017 JV6

custody procedures, as documented in National Enforcement

Investigations Center Policies and Procedures Manual, as revised in May, 1986, and amendments thereto, and the National

Enforcement Investigations Center Manual for the Evidence Audit , published in September, 1981 and amendments thereto, for all sample collection and analysis activities.

c. In order to provide quality assurance and maintain quality control regarding all samples collected pursuant to this

Consent Decree, the City shall:

1, Ensure that all contracts with laboratories utilized by the City for analysis of samples taken pursuant to this Consent Decree provide for access of State personnel and

State authorized representatives to assure the accuracy of laboratory results related to the Work to Be Performed.

2 . Ensure that laboratories utilized by the City for analysis of samples taken pursuant to this Consent Decree perform all analyses according to U.S. EPA methods or methods deemed in advance satisfactory by the state . Accepted u.s. EPA methods are documented in the "Contract Lab Program Statement of

Work for Inorganic Analysis" dated July 1988, and the "Contract

Lab Program statement of Work for Organic Analysis" dated

February, 1988.

3. Ensure that all laboratories utilized by the

City for analysis of samples taken pursuant to this Consent

Decree participate in a U.S. EPA or U.S. EPA equivalent QA/QC program. As part of the QA/QC program and upon request by ~DEQ, such laboratories shall, at the City's expense, perform analyses

839 Pff0O3017 IV6 of samples provided by ADEQ to demons t rate the quality of each laboratory's data. ADEQ may provide to each laboratory a maximum of four (4) aqueous samples for analysis by gas chromatography/mass spectrometry.

XVI. PERIODIC REVIEW TO ASSURE PROTECTION.

A. To the extent required by Section 12l(c) of CERCLA, 42 u.s.c. Section 962l(c), and any applicable regulations , t he

State will review the Work to Be Performed at the Site following completion of construction and at least every five (5) years thereafter to assure that human health and the environment are being protected.

B. If upon such review, the State determines that further response action in accordance with Sections 104 or 106 of

CERCLA or A.R.S. Title 49 is appropriate at the Site, then the

Parties shall proceed in accordance with Section x. The City and the public shall be provided with an opportunity to comment on any additional activities proposed by the State as a result of the periodic review pursuant to this Section to the extent required under Section 104 or 106 of CERCLA, as appropriate.

XVII. PROJECT COORDINATORS.

A. The State and the City shall each designate a

Project Coordinator for the purpose of overseeing the implementation of this Consent Decree and coordinating communication between the City and the State. Within ten (10) days of the effective date of this Consent Decree, the City shall notify the State of the name and address of its Project

Coordinator and the State shall inform the City of the name and address of its Project Coordinator. Either Party may c hange its designated Project Coordinator by notifying the other Party, in writing, of the change. To the maximum extent possible , communications between the City and the state concerning the terms and conditions of this Consent Decree shall be directed through the Project Coordinators. Each Project Coordinator s hall be responsible for assuring that all communications from the other Project Coordinator are appropriately disseminated and processed.

B.

authority to:

The City Project Coordinator shall have the

1.

2.

Take samples or direct that samples be taken;

Observe, take photographs and make such other reports on the progress of the Work to Be Performed as he/ she deems appropriate; and

3. Take other actions as directed by the City that are not the responsibility of the State Project Coordinator.

c. The state Project Coordinator shall:

1. Have the authority to direct that Work to Be

Performed stop whenever he or she determines that activities at the Site may create a danger to public health or welfare or the environment;

2. Review records, files and documents relevant to this Consent Decree; and

3. Request minor field modifications in the techniques, procedures or designs utilized in carrying out this

Consent Decree which are necessary to the completion of response in order to obtain access for the performance of thjs Consent

Decree, the State reserves the right to seek reimbursement for costs incurred in the exercise of such powers from the City or the entities which prevented access.

B. The City shall inform the State of the location of the office at which Site records, operating logs, contracts and other documents are kept. The State or its authorized representatives shall have authority to enter the Site and / or its office at all reasonable times for the purposes of inspecting records, operating logs, contracts, and other documents relevant to implementation of this Consent Decree; reviewing the progress of the City in implementing this Consent Decree; conducting such tests as the State Project Coordinator deems necessary; and verifying the data submitted to the State by the City. The State or its authorized representatives shall have access to the Site office at all reasonable times for the purposes of inspecting the records. The City shall honor all reasonable requests for such access by the State, conditioned only upon presentation of proper credentials.

XIX. SAMPLING AND DATA AVAILABILITY.

A. The City shall make available to ADEQ quality assured results of sampling, tests, or other data generated by the City or on its behalf, with respect to the implementation of this Consent Decree. If quality assurance is not completed within the time frame specified in the appropriate Work to Be

Performed plan(s) or the groundwater monitoring program, raw data or results shall be submitted upon the request of ADEQ within

839 FH003O17 IV6

that period, and quality assured data or results shall be submitted as soon as they become available.

B. The State explicitly reserves the right to observe the Work to Be Performed as it is performed. The City shall notify the ADEQ project coordinator by telephone, pr oviding for sufficient time for the project coordinator to attend , before conducting environmental sampling, and shall provide a schedul e for the groundwater monitoring program and other rout i ne sampling . At the request of ADEQ, the City shall provide or allow an authorized representative of the State to observe field work and to take split or duplicate samples of all samples collected by the City pursuant to this Consent Decree. At the request of the City, the state similarly provide or allow the

City or its authorized representatives to take split or duplicate samples collected by the State related to the Site.

C. The City shall permit the State or its autho r ized representatives to inspect and copy, at reasonable times, all records, memoranda, files, photographs, documents and other writing, including sampling and monitoring data, pertaining to

Work to Be Performed undertaken pursuant to this Consent Decree.

The Parties recognize the provisions of A.R.S. S 49-205 apply to such data and information generated by the City. Nothing in this

Section shall constitute a waiver by the City of any applicable claims of attorney work product or attorney/client or other legal privilege.

o. Nothing in this Section shall limit the State's rights under Section 104(e) of CERCLA, 42 u.s.c. S 960l(e), A.R.S. SS 49-203(b) and 49-287, to inspect raw technical data in the possession of the City and / or its authorized representatives that has been generated in connection with implementa tion o f the

Work to Be Performed.

E. Within ninety (90) days of the effective date of this Consent Decree, the City shall propose to the State a plan and system to manage and organize data collected pur.suant to this

Consent Decree. Upon approval by the state, the City shall implement the data management plan and system.

XX. RETENTION OF RECORDS .

The City shall preserve for a minimum of ten (10) years after termination of this Consent Decree all records and documents ~nits possession or in the possession of its employees, agents,…