Groundwater/Soil Contamination Settlement
t
BEFORE THE KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT
Landon Building - 900 S.W. Jackson
suite 904
Topeka, Kansas 66612-1290
IN THE MATTER OF:
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CONSENT ORDER AND
SETTLEMENT AGREEMENT FOR
REMEDIAL INVESTIGATION AND
FEASIBILITY STUDY, AND
FOR CERTAIN REMEDIAL ACTIONS
POLLUTION AT
SALINA, KANSAS
Proceedings pursuant to
the Kansas Environmental
Response Act, K.S.A.
65-3452, as amended and
statutes cited below
Case No. 94-E-0306
INTRODUCTION
1. This Settlement Agreement is entered into vOluntarily by
the Kansas Department of Health and Environment ("KDHE") and
Salina, Kansas ("city"), a municipal corporation.
This Consent
Order and Settlement Agreement
( " Agreement" )
concerns the
preparation of a remedial investigation and feasibility study
("RIfFS"), the performance of public involvement activities, and
remedial activities
( "RD IRA")
to be determined
following
opportunity for public involvement at an area known as the "site"
("the Site") located in Salina, Kansas.
JURISDICTION
2. This Agreement is pursuant to the authority of the KDHE
which has general jurisdiction of matters involving hazardous
substance and hazardous substance cleanups under the authority of
the Kansas Environmental Response Act (K.S.A. 65-3452a. et seg.),
more specifically K.S.A. 65-3453(a) (6), as well as hazardous waste
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and its cleanup (K.S.A. 65-3430 et seq.) and has general authority
and responsibility to protect waters and soils of the state under
the authority of K.S.A. 65-161, et seq.
The ci ty agrees to
undertake the actions required by the terms and conditions of this
Agreement, and, in any action by the KDHE to enforce the terms of
this Agreement, the City consents to and agrees not to contest the
jurisdiction or authority of KDHE to enter into or enforce this
Agreement, or to contest the validity of this Agreement.
PARTIES COVERED BY THIS AGREEMENT
3. This Agreement shall apply to and be binding upon the
KDHE and the City, their agents, successors, assigns and officers.
The signatories to this Agreement certify that they are authorized
to execute and legally bind the parties they represent to this
Agreement.
4. The City shall provide a copy of this Agreement to all
contractors, subcontractors, laboratories, and consultants retained
to conduct work performed under this Agreement, wi thin 21 days
after retaining the services of the party, or after entry of this
Agreement, whichever is later.
STATEMENT OF PURPOSE
5. In entering into this Agreement, the objectives of the
KDHE and the city are:
a. to determine the nature and extent of contamination
and any threat to the public health, welfare or the environment
caused by the release or threatened release of hazardous
substances, pollutants or contaminants at or from the site or
facility,
to
the
extent
necessary
to
evaluate
remedial
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, ,
alternatives,
b. to determine and evaluate alternatives for remedial
action (if any); and to prevent, mitigate or otherwise respond to,
or remedy any release or threatened release of hazardous
substances, pollutants or contaminants at or from the site,
c. to conduct a public involvement exercise through the
scheduling of such public meetings, hearings, notices, or other
forms of communication as may be appropriate to advise the general
public of developments under this Agreement;
d. to implement the remedial option chosen following
the activities described above, and to assure that the project
selected meets the requirements of the KDHE and the Environmental
Protection Agency's National contingency Plan (40 C.F.R. Part 300)
to enable the city to fulfill the purposes of this Agreement and to
identify and recover costs from parties not released from liability
by the terms of this Agreement.
e. to remediate any economic impact upon the City,
other taxing subdivisions, the state of Kansas and certain owners,
operators, lenders and successors of title of property located
within the site as described in paragraph 6, that may have occurred
or may occur in the future if this Agreement is not entered into
that has resulted or may result from groundwater contamination
within the site.
f. to enable certain owners, operators, lenders and
successors of title within the area to obtain a certification as
set forth in paragraph 56 of this Agreement which releases them
from liability and an agreement by KDHE not to take action against
them.
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,
FINDINGS OF FACT
6. The Salina PWS wells site is located in the central
portion of the City of Salina, Saline County, Kansas. The site is
a long, narrow area averaging less than one-half mile in width and
is slightly more than one and one-half miles in length, and is
graphically illustrated in Exhibit Two of this Consent Order. The
si te is bounded on the north and south by Walnut and Claflin
Streets. From north to south, the site is bounded on the west by
Seventh, Highland and Ninth Streets.
On the east, the site is
bounded by a diagonal line from Front to Santa Fe Streets. The
site consists of slightly more than 300 acres.
7. The KDHE entered into a Cooperative Agreement with the
united States Environmental Protection Agency Region VII ("EPA") by
which KDHE has performed investigations of potential contamination
wi thin the vicinity of the site. The investigations were conducted
in accordance with the requirements of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
( II CERCLA ") ,
as
amended by the
Superfund Amendments
and
Reauthorization Act of 1986 ("SARA"). The investigations were for
the purpose of assisting in a determination of the possible
existence of a threat to human health or the environment and to
determine whether the site should be considered for proposed
listing on the EPA National Priority List ("NPL").
8.
Pursuant
to
the
pre-National
Priority
Listing
investigations including a Preliminary Assessment (1988), Scanning
Site Investigation (1990), and the Expanded site Investigation
(1993), it has been determined that the ground water underlying the
site is contaminated by hazardous substances and hazardous wastes,
including chlorinated organic compounds which are the result of one
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or more releases of hazardous substance(s) and hazardous waste(s) .
9. The predominant hazardous contaminant found at the site
is Tetrachloroethylene, or Perchlorothylene (PCE) , which is an
organic solvent commonly used within the dry cleaning industry.
Tetrachloroethylene has been detected in several city of Salina
Public Water supply Wells since 1985. Ground water contamination
by Tetrachloroethylene identified within the affected PWS wells
exceeded the Maximum contaminant Level (MCL) established by EPA for
safe drinking water standards. As a result, PWS wells #3 and #4
were taken out of service by the city.
10. The contamination of the ground water beneath the site is
causing or threatens to cause pollution of the waters of the State,
or threatens to become, a hazard to persons, public health, or
safety.
11. The City has empowered the Mayor to execute this
Agreement on behalf of the City to provide for a Remedial
Investigation/Feasibility Study for the city of Salina Public Water
Supply site to determine the potential threat to health or the
environment posed by the contaminated groundwater at the site.
12. While the City specifically denies and does not admit,
accept, concede, or acknowledge the determinations, allegations,
findings of fact and conclusions of law made by KDHE in the
Agreement, and specifically reserves the right to contest any such
determinations, allegations, findings, and conclusions in any
proceeding regarding the site other than actions brought by KDHE to
enforce this Agreement and to require the City to perform the Work
as described in the attached Work Plan.
The City specifically
reserves any and all rights (including any right to contribution),
defenses, claims, demands, and causes of action which it may have.
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t
13. In recognition of the foregoing facts, and in an effort
to resolve this matter, the Parties have further agreed for the
purpose of this Agreement only, to the following conclusions of
law:
CONCLUSIONS OF LAW
14. The City is a "person" within the meaning of K. S .A.
65-164, et sea., K.S.A. 65-3430, et sea., and K.S.A. 65-3452a, et
sea.
15. The presence of the contaminants identified in the ground
water underlying the site constitutes "pollution" as defined by
K.S.A. 65-171d.
16. Some of the contaminants identified in the ground water
underlying the site include "hazardous substances" as defined by
K.S.A. 65-3453 and "hazardous wastes" as defined by K.S.A. 65-3430
(hereinafter collectively referred to as "Hazardous Substances").
17. The area defined as the site constitutes a "site" within
the meaning of K.S.A. 65-3453.
18. The facts above constitute:
a) the discharge, abandonment, or disposal of hazardous
substances or hazardous wastes;
b) the pollution of the land or waters of the state or
the threat of pollution of the land or waters of the state;
c) a potential threat of hazard, or a hazard to
persons, property or public health.
19. Under the facts as shown above, the parties have agreed
that the Secretary has jurisdiction over this matter, and the City
agrees not to challenge the Secretary's authority to enforce this
agreement as an order entered pursuant to Kansas Law and further
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~
that there is a need for an appropriate response action. The KDHE
has concluded, and the Secretary has confirmed, that there is a
need for further investigation to determine whether response
actions are required to prevent a continuing release or threat of
release of hazardous substances and remove the pollution or hazard
which may be found to exist.
20. The investigation of such discharges is necessary to
determine whether removal of the pollution or hazard is required to
protect the public health and safety and the environment, giving
rise to the authority of the Kansas Department of Health and
Environment to enter this agreement.
A necessary part of this
investigation is the study of the nature and extent of the threat
to public health or welfare or the environment caused by the
release or threatened release of hazardous substances, pollutants
or contaminants from the site ("Remedial Investigation") and an
evaluation of the alternatives for the appropriate extent of
remedial action to prevent or mitigate the migration of the release
or threatened release of hazardous substances, pollutants or
contaminants from the site ("Feasibility Study").
21. The KDHE has concluded, and the secretary has confirmed,
that there may be a need for "interim measures" to minimize the
spread of contamination or the possibility of additional source
control measures, taking into account known source control
measures, and that the city has agreed to implement such interim
measures as described in the Work Plan(s) and as may be consistent
with any final remedy that may result from the remedial
investigation and feasibility study, and that such actions are
consistent with the authority of K.S.A. 65-3453, 65-164, K.S.A.
65-3430, et sea., and believed to be consistent with the
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Environmental Protection Agency National contingency Plan, 40
C.F.R. Part 300, et sea.
22. The KDHE has concluded, and the Secretary has confirmed,
that the Secretary is authorized by K.S.A. 65-3453, K.S.A. 65-164,
et sea., K.S.A. 65-3430, et sea., and the regulations issued
pursuant thereto, to enter into this Agreement providing for the
completion of appropriate remedial actions by the city following
public participation in the recommendations of the remedial
investigation and feasibility study, and the approval of the
appropriate recommended remedial action by the Secretary.
23. The KDHE has concluded, and the Secretary has confirmed,
that the KDHE has authority to enter this agreement, and to make
the findings of fact and conclusions of law stated herein.
24. The Secretary of Health and Environment is authorized by
K.S.A. 65-3453, K.S.A. 65-164, et sea., K.S.A. 65-3430, et sea. and
the regulations issued pursuant thereto to enter an order
confirming the agreement of the parties, and ordering that the
actions and obligations required hereunder be achieved.
NOW, THEREFORE, in consideration of the foregoing findings of
fact and conclusions of law, the Parties agree to the following
activities and commitments:
WORK TO BE PERFORMED
25. KDHE has developed "Scopes of Work" (SOWs) which are
attached
hereto
as
Exhibit
One
"A"
for
a
Remedial
Investigation/Feasibility Study (RI/FS) and Exhibit One "B" for
Remedial Design/Remedial Action (RD/RA) and incorporated by
reference herein.
The City shall submit draft work plans and
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reports, which are consistent with this Scopes of Work, to KDHE for
review and approval within 150 days of the effective date of this
Agreement.
In addition, a courtesy copy of all work plans and
reports should be provided to KDHE, which will be forwarded to EPA.
All references hereafter to review or concurrence by KDHE on
submittals by the City shall be deemed to incorporate therein any
comments or concurrences of EPA if any.
26. All Work Plans, when approved by KDHE are incorporated
into this Agreement and shall become a part hereof as Exhibit Two.
27. Any reports, plans,
specifications,
schedules and
attachments required by this Agreement are, upon approval by KDHE,
incorporated into this Agreement.
28. All Work Plans shall include a time schedule.
SUBMISSIONS REOUIRING AGENCY APPROVAL
29. After review of any plan, report or other item which is
required to be submitted for approval pursuant to this Agreement,
KDHE shall: (a) approve, in whole or in part, the submission; (b)
approve the submission upon specified conditions; (c) modify the
submission to cure the deficiencies; (d) direct that the City
modify the submission; (e) disapprove, in whole or in part, the
submission, notifying the City of deficiencies; or (f) any
combination of the above.
30. In the event of approval, approval upon conditions, or
modification by KDHE, the city shall proceed to take any action
required by the plan, report, or other item, as approved or
modified by KDHE subject only to the city's right to invoke the
Dispute Resolution procedures set forth in paragraphs 65-68
(Dispute Resolution) with respect to the modifications or
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.
conditions made by KDHE.
31. Upon receipt of a notice of disapproval or a notice
requiring a modification, the city shall, within 30 days or such
other time as specified by KDHE in such notice, correct the
deficiencies and resubmit the plan, report, or other item for
approval. Notwithstanding the notice of disapproval or a notice
requiring a modification, the City shall proceed, at the direction
of KDHE, to take any action required by any non-deficient portion
of the submission.
32. In the event that a resubmitted plan, report or other
item, or portion thereof, is disapproved by KDHE, KDHE may again
require the City to correct the deficiencies, in accordance with
the preceding paragraphs. KDHE also retains the right to amend or
develop the plan, report or other item.
subject only to their
right to invoke procedures set forth in paragraphs 65-68 (Dispute
Resolution), the City shall implement any such plan, report, or
item as amended or developed by KDHE.
33. If, upon the first resubmission or upon any subsequent
resubmission, the plan, report, or item is disapproved by KDHE due
to a material defect, the city shall be deemed to be in violation
of the provision of this Agreement requiring the City to submit
such plan, report, or item unless the city invokes the dispute
resolution procedures set forth in paragraphs 65-68 (Dispute
Resolution) and the final decision overturns KDHE's disapproval
pursuant to that paragraph.
The provisions of paragraphs 65-68
(Dispute Resolution) and paragraph 51 (stipulated Penalties) shall
govern the implementation of the Work Plan and accrual and payment
of
any
stipulated
penalties
during
Dispute
Resolution.
Implementation of any non-deficient portion of a submission shall
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.
not relieve the city of any liability for stipulated penalties
under paragraph 51 (stipulated Penalties).
34 . All plans, reports, and other items required to be
submi tted to KDHE under this Agreement shall, upon approval by
KDHE, be deemed to be incorporated in and an enforceable part of
this Agreement.
In the event KDHE approves a portion of a plan,
report, or other item required to be submitted to KDHE under this
Agreement, the approved portion shall be deemed to be incorporated
in and an enforceable part of this Agreement.
MODIFICATION OF WORK PLANS
35. Work Plans may be amended by mutual agreement of the KDHE
and the city. Such amendments shall be in writing, and shall have
as their effective date the date on which they are signed by both
parties, and shall be incorporated into this Agreement.
36. No informal advice, guidance, suggestions or comments by
KDHE regarding reports, plans, specifications and any other
writings submitted by the city will be construed as relieving the
City of its obligations to obtain written approval, whenever
required by this Agreement.
ADDITIONAL RESPONSE ACTIONS
37. In the event that KDHE or the city determine that
response actions are necessary to complete the RI/FS or RD/RA in
addition to the approved Work Plans tasks including reports,
notification of such additional response actions shall be provided
to the Project Coordinator for the other party.
38. Within 30 days of receipt of notice from KDHE that
additional response actions are necessary or such longer time as
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.
may be specified by KDHE, the City shall submit for approval by
KDHE, a work plan for the additional response actions, unless the
City has received an extension from KDHE or has invoked the Dispute
Resolution provisions. Upon approval of the plan, the City shall
implement the plan for additional response actions in accordance
with the schedule contained therein.
39. Any additional response actions that the City determines
are necessary to
carry out the remedy selected in the
Administrative Decision (AD) shall be subject to approval by KDHE,
and, if authorized by KDHE, shall be completed by the City in
accordance with plans, specifications, and schedules approved by
KDHE.
OUALITY ASSURANCE
40. All samples analyzed pursuant to this Consent Order shall
be analyzed using the methodologies specified in Exhibit 4.
41. All sample collection and analysis shall be performed in
compliance with the approved Work Plans, including scheduling of
analyses, documentation of sample collection, handling and
analysis.
42. Laboratory analytical report forms shall be submitted to
KDHE for all analytical work performed pursuant to this Consent
Order. Any deviations from the procedures and methods set forth in
these documents must be approved in writing by KDHE prior to use.
The City will notify KDHE in writing within five (5) working days
of notice or knowledge of a potential deviation from prescribed
procedures or methods. Such notice shall provide information as to
the nature of the deviation, if known, and outline a proposed
investigation to determine whether the sample or resul ts are
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potentially representative or should not be considered valid. If
the results cannot be validated by evaluation of the Quality
Assurance/Quality
Control
procedures,
historical
data,
or
laboratory protocol, the City will resample upon KDHE's approval
and discretion. The city will notify KDHE at least seven (7) days
before conducting resampling.
Failure to follow the above
procedure for notification of deviations will be considered
violations of this order and will be subject to an administrative
penalty of $1,000.00 per violation and the data resulting therefrom
shall be invalid.
43. The City shall use the quality assurance, quality
control, and chain of custody procedures specified in the Quality
Assurance Project Plan, which are part of the approved Work Plans,
for all sample collection and analysis performed pursuant to this
Consent Order, unless otherwise agreed to in writing by KDHE.
44. All contracts for field work and laboratory analysis
shall provide that KDHE representatives are allowed access, for
aUditing and evaluation purposes, at reasonable times upon
reasonable request, to all laboratories and personnel utilized by
the City for sample collection and analysis and other field work.
Upon request by KDHE, the laboratories shall perform analysis of a
reasonable number of known samples provided by KDHE to demonstrate
the quality of the analytical data.
REPORTING
45. The city shall provide KDHE with written progress reports
quarterly, pursuant to the Implementation Schedule contained wi thin
the approved Work Plans. Such reports become due 30 days after the
end of the previous quarter.
At a minimum, these progress reports
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shall: (1) describe the actions, progress, and status of projects
which have been taken toward achieving compliance with this
Agreement, as well as the actions which are scheduled for the next
quarter:
(2) identify any requirements under this Agreement that
were not completed as provided and any problem areas and
anticipated problem areas in complying with this Agreement; and (3)
include all results of sampling, tests, data and conclusions drawn,
if any, from data generated pursuant to the Work Planes).
ACCESS
46. The City, KDHE and any of their agents or contractors are
authorized by the city, to the extent of it's authority, to enter
and freely move about all property in the Area during reasonable
business hours and in compliance with safety requirements for the
purposes of, inter alia:
interviewing site personnel and
contractors; inspecting operating logs and contracts related to the
terms of this Agreement; reviewing the progress in carrying out the
terms of this Agreement; conducting such sampling and tests as KDHE
deems necessary; using a camera, sound recording, or other
documentary type equipment; and verifying the reports and data
submitted to KDHE by the city. The City shall permit authorized
representatives of KDHE to inspect and copy all records, files,
photographs, documents, and other writings, including all sampling
and monitoring data, that pertain to work undertaken pursuant to
this Agreement. Upon disclosure to KDHE, such information shall be
protected pursuant to K.S.A. 65-170g, K.S.A. 65-3447 and as allowed
by K.S.A. 45-221 et sea.
47. To the extent that work required by the Work Planes) must
be done on property not owned or controlled by the City, the city
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shall use its best efforts, excluding condemnation, to obtain such
site access agreements from the present owner(s} of such property,
including obtaining such access for investigative and remedial
purposes, not inconsistent with the current beneficial use of the
property, as a condition of the land owner obtaining status
pursuant to paragraph 56 within thirty (3D) days after receipt of
a request therefor from KDHE.
Any such access agreement shall
address the purposes and limitations of the Agreement, any
restoration requirements, and shall be incorporated by reference
into this Agreement. In the event that agreements for site access
are not obtained within thirty (3D) days of the date of such
request, the city shall notify KDHE regarding the matter.
KDHE
shall thereafter seek to obtain access for the city. KDHE shall
not be responsible for any injury or damage to persons or property
caused by the negligent or willful acts or omissions of the City,
its officers, employees, agents, successors, assigns, contractors,
or any other person acting on the City's behalf in carrying out any
activities pursuant to the terms of this Agreement. The City shall
not be responsible for any injury or damage to persons or property
caused by the negligent or willful acts or omissions of KDHE, their
officers, employees, agents, successors, assigns, contractors, or
any other person acting on KDHE's behalf in carrying out any
activities pursuant to the terms of this Agreement.
SAMPLING AND DATA/DOCUMENT AVAILABILITY
48. The City shall make available to KDHE all results of
sampling, tests, or other data generated by or on its behalf as
required by this Agreement. The City shall submit these results in
the progress reports described in the "Reporting" Section of this
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Agreement.
KDHE will make sampling results and other data
available to the city. However, the City may perform such other
additional investigations and take such additional samples as may
be deemed appropriate for their own purposes, and shall not be
required under this Agreement to furnish such information to KDHE
unless specif ically requested by KDHE.
KDHE may request such
additional information under the authority provided by law, subject
to the privileges against disclosure which the City may have,
including, but not limited to, attorney-client communication, work
product privilege, or other legal defense.
49. The city shall notify KDHE at least seven (7) days before
conducting any well drilling, installation of equipment, or
sampling. At the request of KDHE, the city shall provide or allow
KDHE or EPA or their authorized representatives to take split
samples of all samples collected by the city pursuant to this
Agreement.
Similarly, at the request of the City, KDHE shall
provide the City or its authorized representatives with split or
duplicate samples of all samples collected by KDHE under this
Agreement.
KDHE shall notify the City at least seven (7) days
before conducting any sampling under this Agreement, provided,
however, that if seven (7) days notice of sample collection
activity is not possible, KDHE and the City shall give such advance
notice to enable each party to have a representative present during
said sample collection activity.
RECORD PRESERVATION
50. The City agrees that it shall preserve, during the
pendency of this Agreement and for a minimum of six (6) years after
its termination, all records and documents which have not
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previously been provided to KDHE in its possession or in the
possession of divisions, employees, agents or consultants or
contractors which relate in any way to this Agreement or to
hazardous waste management and disposal at the site.
At the
conclusion of six (6) years, the City shall then make such records
available to KDHE for inspection or KDHE' s retention or shall
provide copies of any such records to KDHE.
STIPULATED PENALTIES
51. For each period of time that the city fails to submit
reports or deliverables at the times set out in Exhibit
Five, which is part of this Agreement, the city, to the extent it
is able to pass such penalties on to the consultant, shall pay as
stipulated penalties the following: $2,000 for the first week of
delay or part thereof; $3,000 per day for each day of delay for the
8th through 14th day and $5,000 per day of delay thereafter. The
ci ty agrees to contract for the paYment of these stipulated
penalties with it's consultant.
Any accrued penalties shall be
forgiven in the event the next major deliverable on Exhibit Five is
completed by the originally scheduled completed date.
52. Any stipulated penalties shall be payable within twenty-
one (21) days after the City's receipt of demand by KDHE and shall
be paid by certified check to:
Secretary of Health and Environment
Landon Building - 900 S.W. Jackson
suite 904
Topeka, Kansas 66612-1290
A copy of the check and a transmittal letter shall be sent to the
KDHE contact specified herein. The City shall remit a check for
the full amount of penalty stated in the demand.
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53. Should City of Salina fail to comply with a time
requirement of any tasks required by this Agreement, the period of
noncompliance shall terminate upon City of Salina's performance of
said requirement.
OTHER CLAIMS AND PARTIES
54. Nothing in this Agreement or the documents required
hereunder, including Work Plans, shall be used or construed as
evidence or an admission in any proceeding other than the
proceedings under this Agreement.
Nothing in this Agreement,
except as provided in paragraph 56 shall constitute or be construed
as a release for any claim, cause of action or demand in law or
equity against any person, firm, partnership or corporation not a
signatory to this Agreement for any liability it may have arising
out of or relating in any way to the generation, storage,
treatment, handling, transportation, release or disposal of any
hazardous constituents, hazardous substances, hazardous wastes,
pollutants, or contaminants found at, taken to, or taken from the
facility. KDHE agrees to encourage non-participating Potentially
Responsible Parties who have not been issued a certificate pursuant
to paragraph 56 herein to participate with the city in its efforts,
whether or not covered by this Agreement, to investigate and
remediate the contamination described hereinabove as being of
concern to the Parties. Any costs incurred in connection with such
activities shall not be deemed to be oversight costs.
RELEASE OF CLAIMS
55. Except as provided in this paragraph, effective upon
completion of activities described in the Work Plans for the RIfFS
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and RD/RA and any other environmental response requirements covered
by this Agreement, the KDHE hereby covenants not to take further
action against the City for additional requirements in connection
with the activities described herein. However, the requirements of
this Agreement represent the best professional judgment of the KDHE
at this time, based upon available information. If circumstances
change, or if additional information is needed to determine if a
potential threat exists or if data indicates that a threat of
danger to public health or safety, or the environment exists, or a
threat of pollution is different than is contemplated herein, KDHE
retains the right to reasonably modify the dates and requirements
of the Work Plans, or add addi tional reasonable requirements
respecting the Remedial Investigation/Feasibility study and RD/RA
as necessary and appropriate to the purposes of this agreement and
the City retains the right to appeal any such modifications or
additional requests subject to the provisions of this Agreement.
All such modifications shall be in writing. Any such modification
of dates or requirements shall necessitate a modification of the
dates now set forth in the work plan for deliverables.
56. (a) For purposes of this paragraph 56, "Person" means a
holder of any form of legal or equitable interest in a Certified
Property and includes, by way of illustration and not of
limitation, owners, mortgagees, tenants, and holders of mechanics'
and artisans' liens, and all persons obtaining title or other form
of interest in the property from them and any person or entity
conducting a business operation on property within the site. Any
Person desiring to obtain a certificate shall furnish to the City
the applicable fee and a sworn statement describing the property
for which a certificate is sought, stating the Person's knowledge
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(both direct and indirect) regarding the use, release or disposal
(as defined by state and federal law) of Hazardous Substances or
petroleum products or constituents at said property.
That the
Person agrees to grant the City, KDHE and others acting on their
behalf or in cooperation with them access to said property for the
purposes of performing activities related to the investigation and
remediation of the site as set forth in paragraph 47, and that such
Person is entitled to a Certificate, and any other information the
City may reasonably require. The City shall review the statement
and any other relevant information, and may, taking into account
the best interests of the City in carrying out the purposes of this
Agreement and the totality of the circumstances relating to the
Person, issue a certificate and the property described in such
certificate shall be certified Property for the purposes of this
Agreement.
In issuing a certificate, the city may rely on the
information provided by the Person and is not required to make an
independent determination of qualification for the certificate.
The City shall determine on a case-by-case basis if a certificate
shall be issued to a Person which is a corporate successor of a
Person who would not be eligible for the issuance of a certificate.
(b) For purposes of this paragraph 56, "Certified Property"
means a lot, parcel, or other tract of property in the site which
is named in a certificate. Except as provided in paragraph (e) and
(f), effective with the issuance of each certificate, KDHE and the
City jointly and severally agree not to take any action against,
and hereby forever release, all Persons to whom such Certificate is
issued with respect to any liability of such Person, by way of
contribution, subrogation, direct liability, or otherwise, for the
environmental investigation and remediation described herein and
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for payment of any response costs related to environmental
investigation or remediation of the site.
(c) Nothing in this paragraph 56 shall prevent the City,
KDHE, or anyone claiming by or through either of them from bringing
an action to compel investigation and remediation activities
described herein and recover response costs against any Person to
whom a certificate is not issued.
(d) The city may from time to time, after the execution of
this Agreement, establish such procedures and forms for the
issuance of certificates as it may see fit.
The City shall
maintain a public record of all certificates issued hereunder which
shall be available for public inspection.
(e) Issuance of a certificate shall be final and irrevocable,
and the release and agreement contained in paragraph (b) hereof
shall not be affected or terminated by reason of the termination or
modification of this Agreement; provided, however, that no person
shall be released from liability pursuant to this paragraph 56 if
such person provided false or misleading information in connection
with obtaining the Certificate.
CONTRIBUTION PROTECTION
57. KDHE and the City acknowledge that under 42 U.S.C.
9613{f) (2), by entry of this Agreement, neither the city nor KDHE
is liable for claims for contribution regarding matters addressed
herein, and that this Agreement does not affect any other
potentially responsible parties, except for those parties set out
in paragraph 56 herein.
58. KDHE acknowledges that the City has a right of
contribution under federal law and may have such rights under state
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law, against other, non-participating potentially responsible
parties who may have created, contributed to, or otherwise have
become responsible for the matters described herein, except for
those parties being released in paragraph 56 herein, in that the
City has expended or will expend reasonable response costs in
performance of the activities required under this settlement
agreement, and KDHE agrees to provide reasonable assistance upon
request to the City to assist the City with enforcement of its
claims against such third parties.
The assistance referred to
herein shall include making available records which relate to this
matter,
providing statements or testimony of staff upon
notification when such requirements are relevant to the
proceedings, or such other assistance as is reasonable and
appropriate.
59. The KDHE hereby expressly reserves a cause of action or
any claims of whatever kind or nature not subject to this Agreement
which it may have or hereafter have against any other person or
persons not afforded protection hereunder.
FORCE MAJEURE
60. (a) The city shall perform the requirements of this
Agreement within the time limits set forth herein subject to the
conditions subsequently set forth in paragraph 78, unless the
performance is prevented or delayed by events which constitute a
force maieure. A force maieure is defined as any event, arising
from causes not reasonably foreseeable and beyond the control of
the City, which could not be overcome by due diligence and which
delays or prevents performance by a date required by this
Agreement.
Such events do not include increased costs of
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performance,
changed
economic
circumstances,
or
normal
precipitation events. Although not technically constituting force
maieure events, any failure to obtain required access to property
of third parties, shall be treated in the same manner as a force
maieure event provided the City has exercised due diligence in
attempting to obtain such access, which prohibits or delays
performance.
Due diligence is defined for the purposes of this
Agreement as the measure of prudence, activity, and foresight
reasonably expected from and ordinarily exercised by, a reasonable
and prudent man under the particular circumstances.
(b) The City shall have the burden of proving all claims of
force maieure.
(c) The city shall notify KDHE in writing within seven days
after becoming aware of an event which the city knew, or should
have known, constituted a force maieure.
Such notice shall
estimate the anticipated length or delay, and an estimated
timetable for implementation of these measures. Failure to comply
with the notice provision of this section shall constitute a waiver
of the city's right to assert the force maieure claim.
(d) within seven days of the receipt of written notice from
the City of a force maieure event, the KDHE shall notify the City
of the extent to which modifications to this Agreement are
necessary.
If the City is aggrieved by KDHE's written decision,
the City may appeal that decision to the Secretary.
(e) If the City elects to invoke the dispute resolution
procedures set forth herein, it shall do so no later than 15 days
after receipt of KDHE'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
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caused by a force majeure event, that the duration of the delay or
the extension sought was or will be warranted under the
circumstances and that due diligence was exercised to avoid and
mitigate the effects of the delay and the City complied with the
requirements of the preceding sub-paragraphs. 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 the Agreement.
(f) Any modification to this Agreement shall not alter the
schedule for performance or completion of other tasks required by
the Agreement unless specifically modified.
OTHER APPLICABLE LAWS
61. All actions required to be taken pursuant to this
Agreement shall be undertaken in accordance with the substantive
requirements of all applicable local, state, and federal laws, and
regulations.
62. The parties hereto recognize and agree that the city is
subject to and must operate its financial affairs in compliance
with the cash basis law (K.S.A. 10-1101, et seq.) and the budget
law (K.S.A. 79-2925, et seq.).
PROJECT COORDINATOR
63. On or before the effective date of this Agreement, KDHE
and the City shall each designate a Project Coordinator.
Each
project Coordinator shall be responsible for overseeing the
implementation of this Agreement.
The KDHE Project Coordinator
will be KDHE's designated representative. To the maximum extent
possible, all communications between the city and KDHE and all
documents, reports, approvals, and other correspondence concerning
B:SALINA.COS
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24
the activities performed pursuant to the terms and conditions of
this Agreement, shall be directed through the Project Coordinators.
The city agrees to provide at least seven (7) days written notice
prior to changing Project Coordinators. The absence of any Project
Coordinator from the site shall not be cause for the stoppage of
work.
NOTIFICATION
64. Unless otherwise specified, reports, notice or other
submissions required under this Agreement shall be in writing and
shall be sent to:
a) For KDHE:
Mr. Rob Elder
Environmental Geologist
Kansas Department of Health and Environment
Forbes Field
Topeka, Kansas 66620
b) For The City of Salina:
Mr. Don Hoff
Director of Engineering and utilities
City of Salina
P.O. Box 736
Salina, Kansas 67402-0736
DISPUTE RESOLUTION
65. Any dispute which arises under or with respect to this
Agreement 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 agreement of the Parties
to the Dispute.
The dispute shall be considered to have arisen
when one party notifies the other parties in writing that there is
a Dispute.
66. If the city disagrees, in whole or in part, with any
B:SALINA.C05
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approval or other decision by KDHE made pursuant to this Agreement,
the City shall notify KDHE within thirty (30) days of receipt of
the disapproval. The City and KDHE shall then have an additional
thirty (30) working days to attempt to resolve the dispute. If
agreement is reached, the resolution shall be reduced to writing,
signed by each party and incorporated thereupon into this
Agreement. If Agreement is not reached, the KDHE shall issue its
final decision on the dispute, in writing, to inform the City of
the decision of KDHE.
67. The City reserves its rights to appeal any decision of
the KDHE, which is not consistent with law or which is arbitrary or
capricious concerning a dispute under this Agreement, to an
administrative body with applicable jurisdiction and thereafter in
compliance with the Kansas Administrative Procedures Act. The
final decision or resolution of such authority shall be
incorporated as a part of this Agreement.
For purposes of this
Agreement, final order or decision shall mean an order or decision
from which no appeal may be taken.
68. In any dispute proceeding governed by this section, the
ci ty shall have the burden of demonstrating that the decision
disputed is arbitrary and capricious or otherwise not in accordance
with law.
RESERVATION OF RIGHTS
69. Subject to the provisions of this Agreement, KDHE and the
City reserve all rights and defense which they may have, including
the right to seek judicial review to the extent that such rights
are provided by law.
70.
Notwithstanding any other provision of this Agreement,
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the state retains al.l authority and reserves all rights to take any
and all response actions authorized by law.
REIMBURSEMENT OF COSTS
71. a.
within thirty (30) days after the effective date of
this Consent Order, The City shall submit to KDHE the amount of
$52,941.35, which constitutes reimbursement for costs incurred by
KDHE in connection with this site.
b. six (6) months after the effective date of this
Agreement and semiannually thereafter, KDHE shall submit to the
City an accounting of all oversight costs incurred by KDHE with
respect to this Order during the previous fiscal year not to exceed
$50,000 per year. The city shall, within thirty (30) calendar days
from receipt of said accounting, remit a check for the amount of
those costs made payable to the Secretary of Health and
Environment. Checks should specifically reference the identity of
this site. Check should be addressed to:
Secretary of Health and Environment
Landon Building - 900 S.W. Jackson
Suite 904
Topeka, Kansas 66612-1290
A copy of the check and transmittal letter shall be sent to the
KDHE contact specified herein. The City shall remit a check for
the full amount of those costs.
c. If KDHE determines a Risk Assessment is appropriate,
it shall submit to Respondent an accounting for the cost of
performing the Baseline Risk Assessment.
Upon receipt of such
accounting, Respondent agrees to reimburse KDHE for such amount.
KDHE agrees to use a qualified contractor to perform such Risk
Assessment.
B:SALINA.C05
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d. If KDHE determines that a Community Relations Plan
is appropriate, it shall submit to Respondent an accounting for the
cost of development of a Plan for community Relations, and
implementation of such Plan. If KDHE determines that a Community
Relations Plan is unnecessary, KDHE will draft and implement a
Public Information Plan for which KDHE will submit to Respondent an
accounting for the cost of development and implementation. Upon
receipt of such accounting, Respondent agrees to reimburse KDHE for
such amount.
KDHE agrees to perform such work itself or use a
qualified contractor to develop and implement such Plan.
EMERGENCY RESPONSE
72. In the event of any action or occurrence relating to
property or activities of the City within the site pertaining to
remedial activity during the performance of the Work pursuant to
this Agreement which causes or threatens a release of hazardous
waste(s) or substance(s) that constitutes an emergency situation or
may present an immediate threat to public health or welfare or the
environment, the city shall take all appropriate action to prevent,
abate, 'or minimize such release or threat of release, and shall
immediately notify the KDHE's Project Coordinator, or, if the
Project Coordinator is unavailable, KDHE's Alternate Project
Coordinator.
73. If neither of these persons is available, the city shall
notify the KDHE, Bureau of Environmental Remediation; the City
shall take such actions in consultation with KDHE's Project
Coordinator or other available authorized KDHE officer and in
accordance with all applicable provisions of the Health and Safety
Plans, the Contingency Plans, or any other applicable plans. In
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the event that the City fails to take appropriate response action
as required by this paragraph, and KDHE takes such action instead,
the city shall reimburse KDHE all costs of the response action not
inconsistent with the NCP.
74. Nothing in the preceding paragraph or in this Agreement
shall be deemed to limit any authority of the state, to take,
direct, or order all appropriate action or to 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 hazardous waste(s) and substance(s) on, at, or from the
site.
EFFECTIVE DATE AND SUBSEOUENT MODIFICATION
75. This Agreement shall become effective when signed by the
City and the Secretary of the Department of Health and Environment.
76. This Agreement may be amended by mutual agreement of KDHE
and the City except that the rights of persons obtaining a
certificate under paragraph 56 shall not be affected by such
subsequent amendment ( s ).
Such amendments shall be in writing,
shall have as their effective date the date on which they are
signed by both parties, and shall be incorporated into this
Agreement. Nothing herein shall limit KDHE's ability to require
additional tasks as set forth in paragraph 31 of this Agreement.
TERMINATION
77. The provisions of this Agreement with the exception of
paragraphs 54-69 shall terminate upon the City's receipt of written
notice from KDHE that the city has demonstrated that the terms of
this Agreement,
including any additional tasks which KDHE has
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determined to be necessary have been satisfactorily completed.
COORDINATION WITH OTHER POTENTIALLY RESPONSIBLE PARTIES
78. THE KDHE and the City acknowledge and agree that other
potentially responsible parties ("PRP'S") may be responsible for or
may voluntarily undertake certain environmental response actions
within the site area, and that such actions should be coordinated
with and integrated into the actions and obligations of the City
hereunder in such a fashion to minimize the expense otherwise borne
by the City in performing its obligations under this Agreement.
Therefore, KDHE and the city agree to the following:
a. In any settlement agreement with other PRP's, the
KDHE will require that the PRP provide to the City copies of any
nonproprietary environmental investigatory information developed
through any studies performed, promptly upon their availability;
that the PRP and its consultants cooperate with the City to the
maximum extent possible to assure that the activities of each are
coordinated and complementary; and that the PRP will pay an
appropriate share of environmental response costs incurred by the
City relating to investigation and remediation of groundwater
contamination at the site area, subject to such later adjustment as
the City and the PRP may agree upon, based upon legal and equitable
factors.
b. In the event Underground Storage Tanks are
discovered by the ci ty or its consul tants, the ci ty or its
consultants, or are reported to the KDHE in the area of the site
during the activities under this Agreement, KDHE will make best
efforts to require the owners or operators of such Underground
Storage Tanks to undertake any appropriate response or removal
B:SALINA.C05
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actions, remediation activities, or such other activities that will
reduce the obligations of the City to perform under this Agreement,
and which will make available the benefits of the Kansas
Underground storage Tank Trust Fund to pay for such Underground
storage Tank activities.
SOURCE OF FUNDS
79. The parties hereto agree that the only source of funds
that the City is obligated to expend in fulfilling its obligations
under this agreement are as follows:
a. Bonds issued pursuant to authority of K.S.A. 10-
1201, et sea.
b. Revenues and funds available through the Water and
Wastewater Municipal Utility of the City of Salina.
c. contributions recovered from anyone not released
from liability by the provisions of paragraph 56.
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IN WITNESS WHEREOF, the parties have affixed their signatures
below.
RESPONDENT:
~U$~~
TY 0 SALINA
by: Joseph A. Warner, Mayor
Date:
II -/cf-fcf
@~itteR- ~
Date:
/1-/ cj..- tj{
STATE OF KANSAS:
(~~
ROD rt C. Harder, Secretary
Kansas Department of Health &
Environment
Date:
(M/1 tf
CERTIFICATE OF MAILING
.,r hereby certify that on this 1.-th. day of ~~ \::L\LU ,
199~, I deposited a true and correct copy of the above and
foregoing Consent Order in the United States Mail, postage prepaid,
and addressed to:
Greg Bengston
City Attorney
129 South 8th
P.O. Box 380
Salina, KS 67402-0380
B:SALINA.C05
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32
EXHIBIT ONE A
SCOPE OF WORK
FOR A
REMEDIAL INVESTIGATION(RI)/FEASIBILITY STUDY (FS)
GENERAL:
All work conducted under this Consent Order shall be in accordance
with the Comprehensive Environmental Response, Compensation and
Liability Act (1980), the Superfund Amendments and Reauthorization
Act (1986), the National contingency Plan, and EPA guidance
documents where appropriate, EPA directives concerning use of
Presumptive Remedies and superfund Accelerated Cleanup Model (SACM)
methods shall be considered. The general activities for an RI/FS
that Respondent(s) are required to perform are identified in this
Scope of Work. All work performed under this Consent Order shall
be in accordance with the Implementation Schedule herein, as
defined in the approved Work Plan (Exhibit 5), and in full
accordance with the standards, specifications, and other
requirements of the work plans, as approved or modified by KDHE.
SCOPING:
The Respondent will conduct several meetings with KDHE to: 1)
identify the objectives of the RI/FS process, 2) identify the types
of actions that may be required to address site contamination
problems, 3) identify the need for interim actions to mitigate
potential threats, prevent further environmental degradation, or
rapidly reduce risks significantly; 4) identify available data
sources, 5) identify the optimal sequence of site actions and
investigative activities, 6) discuss potential cleanup goals and
associated remedial actions; and 7) identify any potential
streamlining techniques. Information gathered during these
meetings will assist in the development of an RI/FS Work Plan.
OBJECTIVES:
The primary objectives of the Remedial Investigation (RI) are
described as follows:
1) All significant source areas must be adequately
characterized in order to determine adequate remediation
and clean-up goals (i.e. type and nature of source(s) of
contaminants, cause of release, estimated quantity of
release(s), and if the release(s) is/are active or
inactive).
2) The extent (vertical and horizontal) of contamination
from the site must be characterized (including the
migration mechanisms) for the purpose of and to the
1
extent necessary for developing and evaluating effective
remedial alternatives.
3) To adequately characterize the chemical and physical
properties of the contaminants, their mobility and
persistence in the environment and their important fate
and transport mechanisms.
4) The identification of any human and environmental targets
that may be affected by contamination.
5) A risk assessment of contaminant impacts on identified
target areas.
6) To develop individual source control plans for those
areas identified as "hot spots" or areas of highest
contamination.
The primary objectives of the Feasibility study (FS) are described
as follows:
1) To identify and evaluate all appropriate treatment
technologies based on information obtained during the RI.
2) To screen and assemble appropriate technologies into
remedial action alternatives.
3) To evaluate and refine alternatives based on the criteria
as defined by the relevant EPA guidance documents.
4) To conduct treatability studies or pilot tests to support
the effectiveness of certain alternatives.
5) To recommend the most feasible and effective remedial
action for the site.
RIfFS WORK PLAN:
wi thin 150 days of the effecti ve date of this Consent Order,
Respondent(s) shall submit to KDHE a draft RIfFS Work Plan for
approval. KDHE will provide comments on the draft RIfFS Work
Plan. within 30 days of receipt of KDHE's comments, Respondents
shall submit for final approval a revised RIfFS Work Plan that
addresses KDHE's comments. Upon KDHE approval, the RIfFS Work Plan
shall become incorporated into this Order and made a part thereof
as Attachment II. A sampling and Analysis Plan, which consists of
a Field Sampling Plan (FSP) and a Quality Assurance Project Plan
(QAPP), and a site Health and Safety Plan (SHSP) will be submitted
with the Work Plan.
2
DELIVERABLES:
The general activities and subsequent deliverables that the
Respondent(s) are required to complete are specified in the USEPA
document titled, "Guidance for conducting Remedial Investigations
and Feasibility studies Under CERCLA," and as defined in the
Implementation Schedule (contained in the Approved Work Plan,
Exhibit 5). KDHE reserves the right to stop Respondent(s) from
proceeding further, either temporarily or permanently, on any task,
activity or deliverable at any point during the RIfFS.
COMMUNITY RELATIONS:
The Respondent(s) shall prepare a Community Relations Plan (CRP) ,
in accordance with EPA guidance and the NCP. KDHE shall review and
make changes to CRP prior to final approval. KDHE and the
Respondent(s) shall jointly implement the approved plan. The CRP
must be approved by KDHE prior to implementation of on-site field
activities.
IMPLEMENTATION:
wi thin 30 days from the date of KDHE approval of the FSP, QAPP, and
SHSP, Respondents shall commence the schedule of work and
thereafter implement the tasks detailed in the RIfFS Work Plan.
ADDITIONAL TASKS:
KDHE may determine that additional tasks are necessary in addition
to the approved RIfFS Work Plan tasks including reports, which have
been completed pursuant to this Order. KDHE may request
Respondents to implement any such additional tasks within a
timeframe specified by KDHE. Failure by Respondents to implement
addi tional tasks as requested by KDHE, shall be considered a
violation of this Consent Order.
REPORTS:
FOllowing completion of all field activities a Remedial
Investigation Report must be prepared, which includes all data
collected from the field activities. The RI report shall describe
in detail the work completed on-site to accomplish the objectives
as set forth in this sow.
In addition, Respondents shall submit a Feasibility Study Report,
which evaluates appropriate remedial alternatives as determined
from information gathered during the RI. The FS Report shall
evaluate appropriate remedial alternatives based upon the criteria
defined in EPA guidance documents; a detailed analysis of the
selected remedial alternative shall also be provided. The no-
action alternative must also be considered in the initial
evaluations. If presumptive remedies are considered appropriate
3
for the site, certain evaluations contained in the RI report and
the FS report may be streamlined as approved by KDHE.
ADMINISTRATIVE DECISION (AD)
After approval of the final Feasibility Study Report, KDHE shall
prepare a draft Administrative Decision (AD) on the preferred
remedial alternative as concluded from the RIfFS study. The draft
AD shall support the selection of the preferred remedial
alternative by documenting the following: 1) how the remedy was
selectedj 2) how the remedy eliminates, reduces, or controls
exposures to human and environmental receptorsj 3) how the remedy
meets federal, state and local remedial requirements j and 4)
discussion of remediation goals.
KDHE shall publish a notice of the availability of the draft AD and
provide a public comment period of 30 calendar days. The notice
shall include an agency contact person and address, for the
submission of written and oral comments on the draft AD.
A final AD shall be prepared by KDHE that includes KDHE's
explanation for any significant differences between the draft AD
and the final AD as well as a responsiveness summary to the public
comments. Notice of the final AD will be published in the Kansas
Register.
4
EXHIBIT ONE B
SCOPE 01' WORK
POR A
REMEDIAL DESIGN (RD) IREMEDIAL ACTION (RA)
GENERAL:
All work conducted under this Consent Order shall be in accordance
with Comprehensive Environmental Response, compensation and
Liability Act (1980), Superfund Amendments and Reauthorization Act
(1986), the National contingency Plan, and EPA guidance documents.
The general activities for an RD/RA that Respondent(s) are required
to perform are identified in this Scope of Work. All work
performed under this Consent Order shall be in accordance with the
schedules herein, as defined in the Implementation Schedule of the
approved Work Plan (Attachment II), and in full accordance with the
standards, specifications, and other requirements of the work
plans, as approved or modified by KDHE.
REMEDIAL DESIGN (RD)
OBJECTIVES:
The primary objectives of the Remedial Design (RD) are described as
follows:
1) To collect and evaluate data generated in the pre-design
planning stage (if needed).
2) To provide a complete engineered design of the Remedial
Action to be constructed (plans and specifications) as
described in the Administrative Decision.
3) To identify and obtain easements, permits, and approvals
that will be required during construction.
4)
To identify critical technical requirements
activities where quality may be at risk.
and
5) To keep the public informed throughout the process.
6) To design a construction quality control program and a
testing program to demonstrate that the proposed
materials and equipment are acceptable.
PRE-DESIGN TECHNICAL SUMMARY:
within 15 days after the AD is signed, KDHE will prepare a Pre-
Design Technical Summary, which will define and document the
1
technical criteria to implement the remedy.
initiate the RD/RA process.
This document will
RD WORK PLAN:
within 60 days after the publication of the final AD, Respondent(s)
shall submit to KDHE a Work Plan for the design of the selected
remedial alternative at the site. The Remedial Design (RD) Work
Plan shall provide for design of the remedy set forth in the final
AD in accordance and, upon its approval by KDHE, shall be
incorporated into and become enforceable under this Consent Order.
A Health and Safety Plan for the field design activities which
conforms to the applicable Occupational Safety and Health
Administration and EPA requirements shall be included as part of
the RD Work Plan.
The RD Work Plan shall include plans and schedules for
implementation of all remedial design and pre-design tasks
including, but not limited to, plans and schedules for the
completion of: (1) design sampling and analysis plan [including,
but not limited to, a Remedial Design Quality Assurance Project
Plan (RD QAPP)]; (2) treatability studies; (3) a preliminary
design submittal; an intermediate design submittal; (5) a pre-
final/final design submittal; and (6) a Construction Quality
Assurance Plan. In addition, the Remedial Design Work Plan shall
include a schedule for completion and submittal of a Remedial
Action Work Plan.
RD DELIVERABLES:
The general activities and subsequent deliverables that the
Respondent(s) are required to complete are outlined in Attachment
II. KDHE reserves the right to stop Respondent(s) from proceeding
further, either temporarily or permanently, on any task, activity
or deliverable at any point during the RD.
The preliminary design submittal shall include, at a m1n1mum, the
following: (1) design criteria; (2) results of project delivery
strategy; (3) results of additional field sampling; (4) project
delivery strategy; (5) preliminary plans, drawings and sketches;
(6) required specifications in outline form; and (7) preliminary
construction schedule.
The intermediate design submittal, if required by KDHE or if
independently submitted by the Respondents, shall be a continuation
and expansion of the preliminary design. Any engineering
proposals must be identified and evaluated during this review.
The Pre-Final/Final Design submittal shall include, at a minimum,
the following: (1) final plans and specifications; (2) operation
and Maintenance Plan; (3) Construction Quality Assurance Project
Plan (CQAPP); (4) Field Sampling Plan; and (5) Contingency Plan.
2
The CQAPP, which shall detail the approach to quality assurance
during construction activities at the site, shall specify a quality
assurance off icial ("QA Off icial") I independent of the Respondent' s
consultant, to conduct a quality assurance program during the
construction phase of the project. The QA Official may select a
quality assurance team that is responsible for examining and
testing various materials, procedures, and equipment during the
construction. The QA Official and team will be retained by the
Respondent(s) and must be independent of the construction
contractor. The QA Official and team are subject to approval by
KDHE.
The Pre-Final/Final Design review will be the last review of the
Remedial Design process and approval by KDHE will initiate
community relations (as described below) and the development of the
Remedial Action Work Plan.
RD IMPLEMENTATION:
within 30 days from the date of KDHE approval of the RD Work Plan,
Respondents shall implement the RD Work Plan. The Respondent(s)
shall submit all plans, submittals and other deliverables required
under the approved RD Work Plan in accordance with the approved
schedule of work. Unless otherwise directed by KDHE, Respondent (s)
shall not commence any Remedial Design activities at the site prior
to approval of the RD Work Plan.
COMMUNITY RELATIONS:
Upon KDHE approval of the Pre-Final/Final Design, KDHE will
distribute to the community and other interested persons, a fact
sheet on the final engineering design. The fact sheet must be
approved by KDHE prior to distribution.
REMEDIAL ACTION (RA)
OBJECTIVES:
The primary objectives of the Remedial Action (RA) are described as
follows:
1) To identify and modify any part of the remedial system
due to changed field conditions.
2) To construct the remedial system as designed during the
RD stage or modified due to changed field conditions.
3} To test, verify and provide a level of confidence to the
Respondent(s}, KDHE and the public that the constructed
3
..
remedy meets project requirements.
4) To construct a remedial system that is approved by KDHE
after pre-final and final inspections.
5) To implement the approved remedial system.
6) To submit a RA Report.
RA WORK PLAN:
within 30 days after the approval of the Pre-Final/Final Design
submittal, Respondents shall submit to KDHE, a work plan for the
performance of the Remedial Action at the site ("Remedial Action
Work Plan" (RA Work Plan). The RA Work Plan shall provide for
construction of the remedy, as set forth in the design plans and
specification in the approved final design submittal. Upon its
approval by KDHE, the RA Work Plan shall be incorporated into and
become enforceable under this Consent Order. At the same time as
they submit the RA Work Plan, Respondents shall submit to KDHE a
revised Health and Safety Plan for field activities required by the
RA Work Plan which conforms to the applicable Occupational Safety
and Health Administration and EPA requirements.
The RA Work Plan shall include the following: (1) the schedule for
completion of the Remedial Action; (2) method for selection of the
contractor; (3) schedule for development and submitting other
required Remedial Action plans; (4) methodology for implementation
of the Construction Quality Assurance Plan; (5) a groundwater/air
monitoring plan; (6) methods for satisfying permitting
requirements; (7) methodology for implementation of the operation
and Maintenance Plan; (8) methodology for implementation of the
Contingency Plan; (9) tentative formulation of the Remedial Action
Team; (10) construction quality control plan (by constructor); (11)
procedures and plans for the decontamination of equipment and the
disposal of contaminated materials; (12) requirements for project
closeout. The RA Work Plan also shall include a schedule for
implementation of all RA tasks identified in the final design
submittal and shall identify the initial formulation of the
Respondent's RA Project Team (including, but not limited to, the
Respondent's consultant).
RA IMPLEMENTATION:
Upon approval of the RA Work Plan by KDHE, Respondent(s) shall
implement the activities required under the RA Work Plan. The
Respondent(s) shall submit all plans, submittals, or other
deliverables required under the approved RA Work Plan in accordance
with the approved implementation schedule. Unless otherwise
directed by KDHE, Respondent(s) shall not commence physical on-site
activities at the site prior to approval of the RA Work Plan.
4
,< ..
QA OFFICIAL REPORT:
A Report must be submitted by the QA Official which summarizes
inspections, sampling and documentation of the construction process
and final remedial design. The Report must provide documentation
to support implementation of all activities at the site and to
provide confidence that the constructed remedy meets project
requirements. The Report must be submitted and approved prior to
"start-up" of the remedial system.
RA REPORT:
A RA Report must be submitted by the Respondent(s) within 30 days
of the construction and initiation of remedial activities. The RA
Report certifies that all items contained in the RO/RA work plans
have been completed. The report will also include: 1) a summary of
cleanup standards specified for this project; 2) estimated schedule
of completion; 3) monitoring schedule; 4) report schedule; 5)
proj ect summary; 6) emergency contingency; and 7) a description of
day-to-day activities.
CERTIFICATION OF COMPLETION OF THE RA:
within 90 days after the Respondent(s) conclude that Remedial
Action has been fully performed, the Respondent (s) shall so certify
to the state and shall schedule and conduct a pre-certification
inspection to be attended by themselves and the state. If, after
the pre-certification inspection, the Respondent(s) still believe
that the Remedial Action has been fully performed, they shall
submit a written report to KDHE for approval within 30 days of the
inspection. In the report, a registered professional engineer and
the Respondent(s) Project Coordinator shall certify that the
Remedial Action has been completed in full satisfaction of the
requirements of this Consent Order. The written report shall
include as-built drawings signed and stamped by a professional
engineer. The report shall contain the following statement, signed
by a responsible corporate official of the Respondent(s) or the
Respondent(s) Project Coordinator:
"I certify
accompanying
complete."
that
this
the information contained in or
submission is true, accurate and
If, after completion of the pre-certification inspection and
receipt and review of the written report, KDHE determines that the
Remedial Action or any portion thereof has not been completed in
accordance with this Consent Order has not been achieved, KDHE
will notify the Respondent(s) in writing of the activities that
must be undertaken to complete the Remedial Action. KDHE will set
forth in notice a schedule for performance of such activities
consistent with the Consent Order or require the Respondent(s) to
submit a schedule to KDHE for approval. The Respondent(s) shall
5
" ..
perform all activities described in the notice in accordance with
the specifications and schedules established pursuant to this
Paragraph, subject to their right to invoke the dispute resolution
procedures set forth in Paragraphs 68-71 (Dispute Resolution).
If KDHE concludes, based on the initial or any subsequent
certification of Completion by Respondent(s) and that the Remedial
Action has been fully performed in accordance with this Consent
Order, KDHE will so certify in writing to the Respondent(s). This
certification shall constitute the certification of completion of
the Remedial Action for purposes of this Consent Order.
certification of Completion of the Remedial Action shall not affect
Respondent(s) obligations under this Consent Order that continue
beyond the certification of Completion, including, but not limited
to, access, operation and Maintenance, record retention,
indemnification, and payment of Future Response Costs and.
penalties.
6
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EXHIBIT TWO
APPROXIMATE SITE BOUNDARIES
SALINA, KANSAS; PUBLIC WATER SUPPLY WELLS SITE
Oil Well
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EXHIBIT THREE
APPROVED LABORATORY METHODS
PARAMETER GROUP
SDWA (QC)
NPDES (QC)
SW846
(QC)
VOLATILE ORGANIC COMPOUNDS
GC 502.1 (2 ) 601 (2) 8010 (1)
GC 502.2 (2) 602 (2 ) 8020 (1)
GC 503.1 (2) 8021 (1)
GC/MS 524.1 (2) 624 (2) 8240 (2)
GC/MS 524.2 (2) 1624 (2) 8240A (2)
GC/MS 8260 (2)
QUALITY CONTROL
FOLLOW QC SPECIFIED BY METHOD:
1. - FOLLOW GENERAL GC METHODS PROCEDURE EPA SECTION 8000. m
2. - QC INCLUDED IN METHOD.
3. - WHEN QC IS NOT SPECIFIED BY METHOD, USE STANDARD METHOD 17th EDITION
QA/QC GENERAL INSTRUCTIONS. m
SOURCES:
1. "Methods of Chemical Analysis of Water and Wastes." EPA Environmental
Monitoring and support Laboratory, Cincinnati, OH 45268 (EPA-600/4-88-039). Dec.
1988.
2. "Standard Methods for the Examination of Water and Wastewater." 17 th
edition, American Public Health Association, American Water Works Association,
Water Pollution Control Federation, 1989.
3. "Test Methods for the evaluation of Solid waste." EPA Office of Solid
Waste and Emergency Response, Washington, DC 20460. November 1986. SW 846 Third
Edition.
4. Federal Register Vol. 49, No. 209.
rev. 8/20/92
'"
~
Volatile Or.We ClIIIlpOUIIda
MElllODS
Analyta SDWA NPDES SW-846
Acdolle 1624.
Acrolein 1624.
Acrylonitrile 1624.
lkDzene S02.2. S03.1. S24.I, S24.2. 602. 624. 1624, 1020. 1021. 1240. 8260
Bromobenzene S02.l. S02.2. S03.1. S24.1. S24.2 1021, 8260
Bromoch1oromcdwle S02.I, S02.2. S24.1. S24.2. 601. 1021. 8260
Bromodichloromelhane S02.l. S02.2, S24.I, S24.2. 1624. 1010. 1021. 1240. 1260
Bromoform S02.l, S02.2, S24.1. S24.2 601. 624. 1624, 8010. 1021. 8240. 8260
Bromomelhane S02.2. S24.I. S24.2. 624, 1624. 8010, 1021, 1240, 1260
2- BuIaDODe 8240.
o-Butylbenzene S02.2. S03.1, S24.2. 624. 8021. 8260
lee- Butylbenzenc S02.2. S03.1. S24.2 1021. 1260
lert-Butylbenzene S02.2, S03.1. S24.2 1021, 8260
Carbon diaulfJdc 1240.
Carbon T cltachloridc S02.1. S02.2. S24.1. S24.2, 601, 624, 1624, 8010, 8021. 1240, 8260
Chlorobenzenc S02.l. S02.2, S03.1, S24.I, S24.2. 601, 602. 624, 1624. 8010, 1020, 8021. 8240. 8260
Chlorocdwlc S02.l, S02.2. S24.I, S24.2. 601. 624. 1624, 8010, 8021, 1240, 1260
2 -Chlorocchy Ivinyl clhcr 601. 624. 1624, 1010. 8240.
Chloroform S02.I, S02.2, S24.1. S24.2. 601. 624. 1624. 8010, lOll! 1240, 8260
Chloromelhane S02.l. S02.2. S24.I. S24.2, 601. 624. 1624, 8010. 1021. 1240. 8260
2-ChlorololuCDe S02.l, S02.2. S03.1. S24.I, S24.2 8021. 8260
4-ChlorololuCDe S02.1. S02.2. S03.1. S24.I. S24.2 1021, 8260
Dibromochloromcdwlc S02.I, S02.2, S24.I. S24.2. 601, 624, 1624. 8010, 1240, 1260
1,2- Dibromo-3 -chloropropaoe S24.I. S24.2 8021, 8260
1,2-Dibromomcdwlc S02.1. S02.2. S24.I, S24.2 1021. 8260
Dibromomelhane S02.l, S02.2, S24.I, S24.2 8021, 8260
1,2-Dichlorobenzenc S02.1. S02.2, S03.1. S24.I, S24.2. 601. 602. 624. 1010. 8020. 1021, 8260
1,3-Dichlorobenzenc S02_1. S02.2, S03.1, S24.I, S24.2, 601. 602, 624, 8010, 1020. 8021. 8260
1.4-Dichlorobenzenc S02.I, S02.2. S03.1. S24.1. S24.2, 601, 602. 624, 1010, 1020, 8021, 8260
Dichlorodilluoromclhanc S02.l. S02.2, S24.I, S24.2, 601. 8010, 1021, 1260
1,1- Dichloroclhanc S02.I, S02.2 , S24.I, S24.2. 601, 624, 1624, 1010, 8021. 1240. 8260
1.2-Dichlorocdwlc S02.I, S02.2. S24.I, S24.2, 601, 624, 1624. 8010, 1021, 8240, 1260
1,1- Dichloroclhenc S02.1. S02.2, S24.I, S24.2. 601. 624. 1624, 8010, 1021. 1240. 8260
cia-I.2-Dichloroelhenc S02.l, S02.2. S24.I. S24.2 8021, 1260
\nDI-I,2-Dichlorocchenc S02.l, S02.2. S24.1. S24.2, 601, 624. 1624. 8010. 1021, 8240, 8260
1,2-Dichloropropaoc S02.l. S02.2, S24.1. S24.2, 601. 624, 1624, 8010, 1021, 1240. 1260
1,3-Dichloropropaoc S02.I, S02.2. S24.1. S24.2 1021, 8260
2.2- Dichloropropaoc S02.l. S02.2, S24.I, S24.2 8021, 8260
1,1- Dichloropropcoc S02.l, S02.2, S24.I. S24.2 1021. 8260
cia-I.3.Dichloropropcoc S02.I, S02.2. S24.I, S24.2, 601. 624, 1624, 1021, 1240.
\nDI-I.3- Dichloropropene S02.l. S02.2, S24.I, S24.2. 601, 624, 1624. 8010, 8021, 8240,
r
.
VoJatilc Or.aoic CODIpOlIIIlb
MEllIODS
Analytco SDWA NPDES SW-846
Diclhyl ether 1624.
p-DiolWle 1624.
EahylbeDzenc 502.2. 503.1. 524.1. 524.2. 602. 624. 1624. 8020. 8021. 8240. 1260
Hexachlorobutadic:ne 502.2. 503.1. 524.2 8021. 1260
2-HelWlo~ 8240.
IlOpropylbc:nzc:ne 502.2. 503.1 8021. 8260
4-llOpropyllDluene 502.2. 503.1. 524.2
Methylene Chloride 502.1. 502.2. 524.1. 524.2. 601. 624. 1624. 8010 8021 8240. 8260
4-Methyl-2-penIanODe 8240.
Naphthalc:ne 502.2. 503.1. 524.2 8021. 8260
D-Propylbc:nzenc 502.2. 503.1. 524.2 8021. 8260
Styrc:ne 502.2. 503.1. 524.1. 524.2 8021. 8240. 8260
1,1.1,2- Tetrachloroethane 502.1. 502.2. 524.1. 524.2 8021. 8260
1.1.2,2- Tetrachloroethane 502.1. 502.2. 524.1. 524.2. 601. 624. 1624. 8010. 8021. 8240. 8260
T etrachloroclhc:ne 502.1. 502.2. 503.1. 524.1. 524.2. 601. 624. 1624. 8010. 8021. 8240. 1260
T oluc:ne 502.2. 503.1. 524.1. 524.2. 602. 624. 1624. 8020. 8021. 8240. 1260
1.2.3- Trichlorobc:nzc:ne 502.2. 503.1. 524.2 8021. a260
1,2.4- Trichlorobeozc:ne 502.2. 503.1. 524.2 8021. 1260
1.1.1- Trichloroethane 502.1. 502.2. 524.1. 524.2. 601. 624. 1624. 8010. 8021. a240' 1260
1.1.2- Trichloroelbaoe 502.1. 502.2. 524.1. 524.2. 601. 624. 1624. 8010. 8021. 8240. 8260
T richloroclheaoe 502.1. 502.2. 503.1. 524.1. 524.2 624. 1624. 8010. 8021. 8240. 8260
T richlorol1uoromelbaoe 502.1. 502.2. 524.1. 524.2. 601. 624. 8010. 8021. 8260
1.2,3- Trichloropropaoe 502.1. 502.2. 524.1. 524.2 8021. 8260
1.2.4- Trimethylbc:nzc:ne 502.2. 503.1. 524.2 8021. 8260
1.3.5- T rimelby Ibc:nzc:ne 502.2. 503.1. 524.2 8021. 1260
Vinyl Aceta... a240.
Vinyl Chloride 502.1. 502.2. 524.1. 524.2. 601. 624. 1624. 8010. 8021. 8240. a260
o-Xylc:ne 502.2. 503.1. 524.1. 524.2 8021. 1260
m-Xylc:ne 502.2. 503.1. 524.1. 524.2 8021. 1260
p-Xyleoe 502.2. 503.1. 524.1. 524.2 8021. 8260
T olal Xyleoea 8020. 8240.
'" .. ..
EXHIBIT FOUR
DELIVERABLES SCHEDULE FOR
CITY OF SALINA PUBLIC WATER SUPPLY SITE
SALINA, KANSAS
CASE No. 94-E-
DELIVERABLE
DUE DATE
Draft Remedial Investigation
Feasibility Study (RIfFS) Work
Plan
Due 150 days after effective date of
Consent Order.
Draft Quality Assurance
Project Plan (QAPP), Field
Sampling Plan (FSP) , and
Health and Safety Plan (HaSP)
Final RIfFS Work Plan
Due 150 days after effective date of
Consent Order.
Due 30 days after receipt of KDHE's
comments on draft RIfFS Work Plan.
Final Quality Assurance
Project Plan and Field
Sampling Plan
Due 30 days after receipt of KDHE' s
comments on draft QAPP, FSP and HSP.
community Relations Plan, or
Public Information Plan
To be provided by KDHE or KDHE's
contractor.
Draft Remedial Investigation
Report (RI)
The deliverable date will be set within
the Implementation Schedule, which is
included within the approved RIfFS work
plan.
Final Remedial Investigation
Report (RI)
Due 30 days after receipt of KDHE's
comments on draft RI.
Baseline Risk Assessment
To be provided by KDHE or KDHE's
contractor.
Draft Feasibility Study
Report (FS)
The deliverable date will be set within
the Implementation Schedule, which is
included within the approved RIfFS Work
Plan.
Final Feasibility Study
Report (FS)
Due 30 days after receipt of KDHE's
comments on draft FS.
Quarterly Progress Reports
Due quarter-annually upon or before the
anniversary of the execution date of
the Consent Order.
-1-
If+. - i1t-
Draft Remedial Design (RD)
Work Plan
Due 60 days after publication of
the final Administrative Decision.
Final RD Work Plan
Due 30 days after receipt of
KDHE's comments on the draft
RD Work Plan.
Preliminary Design
The deliverable date will be set within
the Implementation Schedule, which is
included within the approved RD work
plan.
Intermediate Design, if
required
The deliverable date will be set within
the Implementation Schedule, which is
included within the approved RD work
plan.
Pre-Final/Final Design
The deliverable date will be set within
the Implementation Schedule, which is
included within the approved RD work
plan.
Draft Remedial Action (RA)
Work Plan
Due wi thin 30 days after approval of the
approval of the Pre-Final/Final Design
deliverable.
Final RA Work Plan
Due 30 days after receipt of
KDHE's comments on the draft
RD Work Plan.
Quality Assurance (QA)
Official Report
The deliverable date will be set within
the Implementation Schedule, which is
included within the approved RA work
plan.
RA Report
Due within 30 days of the construction
and initiation of the remedial
activities.
Certification of Completion
of the RA
Due within 90 days upon completion of
the RA.
Other plans, submittals, or
other deliverables required
under the RA Work Plan
Due in accordance with the approved
RA Work Plan Implementation Schedule.
-2-