SCHMELTZER, AP'fAKER & SHEPPARD, P,C,COUNSELORS AT LAWTHE WATERGATE

ecftAH: s-.-Hf *;cn 360O VIRGINIA AVENUE. NORTHWEST, SUITE IOOOca**i5/aHt»p*«3.-. WASHINGTON, D.C 30037-1905 «T"-.*C Mj TMO»A3C91..faC" CA(|LC 5M,Ry, Tc.D<.-WOSi? OC*1.* HMHC

MUUM nCvuMAS

TC-CCOf*CH 3*} >W HOIKf k OUBTONn/t«CHlNC enCACUDONAVCC * iicnacfl

PATHiCn J OurrrMAXT CUMUcrn 9Ub>.OCBOHAhANriHki'lC'

May 18, 1989

VIA FEDERAL EXPRESS

Mr. Stanley L, LaskowskiDeputy Regional AdministratorU.S. Environmental Protection AgencyRegion III, 3DAOO841 Chestnut BuildingPhiladelphia, Pennsylvania 19107

Re: Army Creek Landfill (I

Dear Mr. Laskowski:

We are forwarding the enclosed documents to you at therequest of Vince D'Anna.

Sincerely yours,

George J. Weiner

GJW/mez

Enc.

cc: Mr. Vince D'Anna (w/enc.)

AR200552

SCHMELTZER, APTAKER & SHEPPARD, P.O.COUNSELORS AT LAWTHE WATERGATE

36OO VIRGINIA AVENUE, NQHTHWEST, SUITE 1000WASHINGTON, D.c. 2oo37.,9o5CADUC SHIP Ui Tlitx <**03t7

wuu M HONiO«iH) tll>ni r BC™ 9uuCnmiTO«HB».Aflft.» COUN«1' K«M IWOCfl TRUITT £0»**0 A'TAAIB KA

HAftQMCT K ntCfSTOt (A1M*U«I h jotitteofi w«(UI**CIHCO»

May 15, 1989

VIA TELECOPY

Karen Kellen, EsquireU.S. Environmental Protection AgencyOffice of Regional CounselRegion III, 3RC23811 Chestnut BuildingPhiladelphia, Pennsylvania 19107

Re: Armv Creek Landfill

Dear Karen:

The increased emphasis the Agency places on the"administrative record" in Superfund matters prompts us toreiterate our views on events surrounding the abortive meeting ofMay 5, 1989 concerning "good faith proposals" made in connectionwith remedial action at the Army Creek site.

The Agency's February 15, 1989 letters to various PRP'sexplained that the Agency intended to follow S 122 (e.) specialnotice procedures with respect to eliciting "good faith proposals"for conduct of the remedial action. That was defined in theAgency's letters in the fallowing terms: "[a] good-faith offer toconduct or finance the RA is a written proposal that demonstratesthe PRP's qualification and willingness to conduct or finance theimplementation and operation and maintenance of the remedy...."The letter proceeded to specify seven particularized elements thatany good faith proposal was to include.

The County on April 21, 1989 made a submission thatcomplied fully with the requirements called for by the Agency.You contacted me on April 26 to advise that, because "good faith

AR200553

SCHMELTZER, APTAKER & SHEPPARD, P.O.

Karen Kellen, Esq.May is, 1989Page 2

proposals" had been received from both the County and an organizedgroup of PRP's, a meeting was being convened on May 5 to discussthose proposals in an effort to achieve what you described as a"global" settlement.

My requests f.r.t. a copy of the PRPs' proposal were notfulfilled until the evening of May 4. Vou at that time telephonedme to announce that EPA .had ajrqed to _a.. request from. .the.. PRP .group

thf) -Couaty-tott-flKciudad from any .discussion at the May, 5 'the -group's .proposal. This was more than a little

surprising since you had advised that the group had previouslysubmitted a proposal that the Agency would share with us. Thematter became clear, however, when you finally teleoopied to me,after another request during our conversation of May 4, a copy ofthe group's "proposal."

Plainlyjttje group's, .submission is not even withinhailing dista.nee.Jof JfijjT good" faith proposal ..specified,, in theA3$ncyrs inltlairietiteJV Instead, it is a one paragraphrecitation of the impediments the group was unsuccessful inovercoming so as to make a good faith offer of the type called forby the Agency. We obviously did not learn of this until- theevening before the May .5 meeting". We nonetheless attended themeeting and, frefore we were directed to leave the room, made theba.st gol'nt "€his letter is meant to underscore: EPA did ___

o_qa_ faith.. proposal -from any PRP save New Castle County.fly extended the negotiation moratorium with the' PRP'

group, and, for reasons that have never been explained to oursatisfaction, you have so far excluded from ongoing negotiationsthe only PRP from which you did receive such a proposal, i. e. , Newcastle county.

Vou mentioned in our telephone conversation lastThursday that Region I'll was meeting internally to consider thissituation further. We trust this will be resolved promptlyinasmuch as the matter continues to erode unproductively theadditional 60-day negotiation period which expires on June 22.

AR200551*

SCHMELTZER, APTAKER & SHEPPARD, P.C,

Karen Kellen, Esq.May 15, 1989Page 3

Please advise me at your earliest convenience of Region Ill'sposition.

Sincerely yours,

-*-*~»'X<—

George J. Weiner

GJW/mez .

cc: Donald E. Marston, Esq.Mr. David C. Clark, P.E.Michael MeIntire, Esquire

RR200555

SCHMELTZER, APTAKER & SHEPPARD, P.C.COUNSELORS AT LAWTn6 WATERGATE

aeoo ViRfliM* AVENUE. NOBT.-WEST, SUITE OOOWAS^.NGTON, D.C. 2C037.I905

M«.M«I.Sl.[»«l) tueSOOCH >B'3««:r/;.r,:««...«,,.„.,.

< (U.UICTX C0«'SC»«C-"OI"3CApril 21, 1989

VIA FEDERAL EXPRESS

Mr. Eric M. NewmanMail Code 3HH16U.S. Environmental Protection AgencyRegion IIIDelmarva/WV/DC CERCLA RemedialEnforcement Section

841 Chestnut BuildingPhiladelphia, Pennsylvania 19107

Re: Armv Creek Landfill

Dear Mr. Newman:This letter constitutes New Castle County's response to

correspondence directed to New Castle County Executive Dennis E.Greenhouse dated January 24, 1989 from Stanley L, Laskowski,Acting Regional Administrator, and February 15, 1989 from Bruce p.Smith, Acting Director, Hazardous Waste Management Division.These letters solicit undertakings from New Castle County ("theCounty") to conduct a Second Operable Unit RemedialInvestigation/Feasibility Study ("RI/FS") and the Remedial Action("RA") for the above-referenced site. As you know,representatives of the County have met with you and other EPAofficials on numerous occasions over the past several months todiscuss various proposals in connection with the County'sparticipation in the RI/FS and RA activities. A fullunderstanding of the County's position with regard to thesematters requires a review of some pertinent aspects of the lengthyhistory concerning the Army Creek and adjacent Delaware Sand sGravel ("DSiG") Landfill sites.

Beginning in the early 1970's, the County undertook thedesign, construction and operation of a recovery well system thathas maintained an effective groundwater dlA'tfJ rbatMewany contaminants emanating from the Army Cr£eruaTliS'/y*> DSSG

SCHMELTZER, APTAKER & SHEPPARD, P.C,

Mr. Eric H. NewmanApril 21, 1989Page 2

Landfills and downgradient water supplies. This groundwatercontainment systen has been recognized by EPA as a successfulmodel and has been endorsed as a key feature of the overall remedyfor both the Army Creek and DSSG sites.1 To date, the Countyhas spent in excess of $5 million for site studies and the design,construction, and operation of the recovery wells and relatedfacilities.

In addition, the County is currently designing amultimillion dollar facility which will treat the recovery welldischarges. The design for this plant is premised on effluentlimitations contained in an NPDES penult issued by the DelawareDepartment of Natural Resources and Environmental Control("DNR£C"') in May, 1987, with which Region Ill's water Divisionconcurred at the time of issuance. That discharge permit wasissued in accord with the Army Creek Landfill Record of Decision("ROD") which recognized that treatment standards for the plantwould be established under the Clean Hater Act permitting processwith subsequent confirmation by a CERCLA ROD.2

In short, the County has been the sole party over thepast two decades to undertake voluntarily any affirmative remedialaction at either the Army creek or DSSG Landfills. None of theother numerous potentially responsible parties at these sites hascome forward to participate in the planning, design orconstruction of any facilities. The State of Delaware, which

1 see Record of Decision, Remedial Alternative Selection, ArmyCreek Landfill Site, September, 1986 ("Army creek ROD"), at p. 1("continue operation of the downgradient recovery well network")and p. 8 ("Due to the success of the groundwater recovery systemoperated by the County ... the contaminants emanating from theArmy Creek Landfill are not currently threatening drinking watersystems."); Record of Decision, Delaware Sand and Gravel site,April, 1988 ("DS&G ROD") at p. 1 ("continue recovery ofcontaminated groundwater to eliminate potential groundwateringestion risk") and p. 5 ("The [County] groundwater recoverysystem has operated for 12 years and is operating todaysuccessfully capturing groundv/ater contamination from DelawareSand and Gravel").

2 see Army Creek ROD at p. 7 ("a treatment alternative will notbe chosen, at this time, because the final NPDES permit and itsassociated discharge limits has not been issued....") and ArmyCreek ROD "Responsiveness summary* at p. 3 ("presently, DNREC isdrafting an NPDES permit which will establish safe aatoa;levels for contaminants now being discharged into Army'*

>«»•.;

SCHMEUTZER, APTAKER & SHEPPARD, P.C.

Mr. Eric M. NewnanApril 21, 1989Page 3

/'hold3 record title to the Army Creek Landfill, has been unwillingto contribute any funds towards site cleanup. Nevertheless/it appears from your correspondence thet Region III continues tolook to the County for commitments to perform studies andconstruction activities which EPA unilateral!/ deems necessary.

With regard to Region Ill's January 24 request fora proposal to conduct a Second Operable Unit RI/FS for the ArmyCreek Landfill, the County continues to contend that such studiesare inconsistent with its 1984 Consent Agreement with EPA as wellas the 1986 ROD. The Consent Agreement, which resulted inpreparation by the county of the July, 1986 Feasibility study,expressly provides that "EPA has determined* that studiesconducted by the County prior to execution of the Agreement inAugust of 1984, "constitute a Remedial Investigation (RI).*3Because the County relied upon the Consent Agreement in preparinga costly Feasibility study, EPA cannot now renege on its stateddeterminations in the Consent Agreement by requiring additional RIwork.

Similarly, the September, 1986 ROD issued by theRegional Administrator contemplated that the groundwater treatmentremedy would be resolved through the NPDES permit process.4 Theonly other reason for a subsequent decision document ongroundwater treatment was the then-incomplete status of the DS&GRI/FS which was evaluating the feasibility of combined groundwaterremedial actions at both sites. However, issuance of the DS&GRI/FS and ROD did not alter the NPDES permit decision because theROD calls for the continued operation of the recovery wellsinstalled by the County and the combined remedial action parallelsexisting conditions already addressed through the NPDES permitprocess. Consequently, there is no basis whatsoever for EPA torequire New Castle County to undertake or for the Agency toconduct a Second Operable Unit RI/FS addressing groundwatertreatment issues for the Army Creek Landfill.5

Although EPA is precluded by its prior actions fromundertaking a Second Operable Unit RI/FS, the County (without

3 See Consent Agreement and Order No, III-84-12-DC, at p. 3,1 6, appended hereto as Exhibit A.

4 See n. 2, supra.

5 At most, the combined effect of the Consent Agreement and RODleft open only the alternatives analysis (but notinvestigation activities) for the sediments in A»

SCHMELTZER, APTAKER & SHEPPARD, P.C.

Mr. Eric M. NewmanApril 21, 1989Page 4

prajudi.ee to its legal position) haa offeypd to pnrfforjLP ma-igrportion of the propo°"H Pl/Ffi "QrV rhif relating to furyhprcfiarax-beii^jeion of groundwater quality and alternativea^analysisfor treatment of re"eQve'rv well water. ThT3 •grottSs'alTwhich wastendered at our meeting on March 16, 1989, is more than reasonablein view of the County's reliance on the 1984 Consent Agreement and1986 ROD, the completed NPDES permitting process (with whichRegion III concurred) and the fact that the proposed studies wouldaddress conditions created at least in part by the Delaware Sand &Gravel Landfill, for which the County has no responsibility.6 >

Unfortunately, the County's substantial offer was "~rejected by Region III at our March 22 meeting. He understand theAgency's position to be based on its unwillingness to perform orrequire others to undertake the remaining risk assessment tasksspecified in the scope of work. While EPA might prefer that oneparty conduct the entire Second Operable Unit RI/FS, the County isnot obligated under CERCLA to conduct the entire studyunilaterally. See United stal-eg v. Strinofellow, 20 Envir. Rep.caa. (SNA) 1905, 1910 (C.D. Gil. 1984). Accordingly, we do notbelieve Region III acted on a sound basis in declining theCounty's good faith offer in this regard.

With regard to Region Ill's February 15, 1989 letterrequesting a proposal from the County to perform the RA asspecified in the ROD and EPA-approved remedial design, EPA isalready aware that the County is implementing the EPA-selectedgroundwater migration remedy (i.e., operating the existingrecovery well system) and is constructing the wastewater treatmentplant that will achieve the effluent limitations specified in theNPDES permit.'' Moreover, there is no actual or threatenedimminent and substantial endangerment presented by this site to

6 The County does not acknowledge CERCLA liability for the ArmyCreek Landfill because its status as an "owner or operator" hasnot been resolved. Its voluntary participation in remedialactions at the Army Creek site is consistent with its longstandingconcern with local environmental conditions,

7 The County does not concede that the May, 1987 NPDES permitis required or enforceable under the Clean Water Act and relevantstate law. See CERCLA § 121(e), 42 U.S.C. § 9621(e).Nevertheless, the effluent limitations in the permit constitutean appropriate and/or relevant requirement ("ARAR") under theNational Contingency Plan, see 40 C.F.R. § 300.6P(i)-(j). Assuch, they should be formally endorsed, without furthby a supplemental (not "Second Operable Unit") ROD it

SCHMELTZER, APTAKER & SHEPPARD, P.O.

Mr. Eric M. NemanApril 21, 1989Page 5

public health, welfare or the environment in view of the County'scontinuing implementation of the recovery well system andconstruction of the treatment plant. EPA has already acknowledgedthat the existing recovery well system is providing an effectivegroundwater divide to protect downgradient water supplies fromconditions at both the Amy Creek and DS&G sites.8 In addition,the NPDES permit could fly be issued on the basis of meetingsurface water quality standards which are designed to protecthuman health and the environment.9 The absence of the proposedcap does not create the kind of emergency situation contemplatedfor relief under section 106 of CERCLA. See, Outboard,MarineCorp. v. Thomas, 773 F.2d 883, 890 (7th Cir. 1985), vacated, apd.remanded on. other grounds, 479 U.S. 1002 (1986). Moreover, theAgency has identified numerous other PRP's at this site—none ofwhom have undertaken any remedial action at tho Army CreekLandfill—from whom it can and should seek proposals to undertakethe other component of the RA.

The County is of the view that it should not be requiredto shoulder on its own the entire burden of the recovery wellsystem and the treatment plant. Accordingly, the County does notpropose, either directly or by implication, that any claims it mayhave against any other person or entity in connection with itsactivities at this site be resolved on the basis of any mattersthe county represents to EPA that it will undertake in connectionwith this site. Without prejudice to that position or itsposition on any other matter addressed in this letter, the Countyhereby indicates its willingness at present to continue to operatethe recovery well system and to proceed with design andconstruction of the treatment plant. As to the matters EPArequested the County show in this connection, we note thefollowing:

1. Statement of Willingness by the County to Conduct orFinance the RA in Accordance with the ROD and EPA-ApprovedRemedial Design.

As stated above, the County has already installed theROD-approved recovery well system and is willing to continue tooperate and maintain the system. In addition, the County ispresently designing the plant—as specified in the ROD--to treatthe recovery well discharges and intends to operate the plant tomeet the effluent limits in its May, 1987 discharge permit.

8 See n. 2, supra.

9 See Delaware Water Pollution Control

SCHMELTZER, APTAKER & SHEPPARD, P.O.

Mr. Eric M. NewmanApril 21, 1989Page 6

2. Detailed Work Plan and Schedule Identifying How thaCounty Flaps to proceed with the Work.

Tor the existing recovery well system, a work plan isobviously unnecessary. The work plan and schedule for thetreatment plant design and construction have already beenforwarded to you and discussed in detail with Region XII.

3. Demonstration of the County's Technical Capabilityto Undertake the RA,.

The County Department of Public Works has retainedRoy F. West on, Inc. to assist in its monitoring and operation ofthe recovery well system and periodically arranges with variouscontractors to perform well maintanance activities. Roy F.Weaton, Inc. has also been retained by the County to design thatreatment plant. Certified and trained County wastewatertreatment plane operators will operate and maintain the plant whenit is completed.

4. pemgnstratinct the County's Capability to Finance the

The County has already financed in excess of $5 millionto plan, design, construct, operate and maintain the recovery wellsystem and related facilities, and it has committed the necessaryfinancial resources to design, construct, operate and maintain atreatment plant to meet the effluent limitations in the May, 1987NPDES permit.

5. Statement of Willingness by the County to ReimburseEPft for Past Response Costs and Costs Incurred in Overseeing thePRPs' Conduct of the RA.

None of EPA's correspondence identifies the amount ofpast response costs or the activities for which those costs wereincurred. The County is willing to consider reimbursing anappropriate amount of reasonable and necessary past responsecosts, but this requires further information from EPA. oversightis not required in connection with the existing recovery wellsystem, and DNREC is already overseeing (pursuant to a separate,judicially-approved consent decree) construction of the treatmentplant. The County is, however, willing to consider reimbursingEPA for an appropriate portion of whatever oversight may benecessary and appropriate in addition to thatundertaken by DNREC.

SCHMELTZER, APTAKER & StHEPPARD, P.C,

Mr. Eric M. NewmanApril 21, 1989Page 7

6. Name. Address and Phone Number of the Party Who HillRepresent the County jri negotiations.

George J. Heiner, EsquireSchmeltzer, Aptaker & Sheppard, P.C.suite 10002600 Virginia Avenue, N.H.Washington, D.c. 20037(202) 333-8800

7. peseription of the County's Position on Releasesfrom Liability and Reopeners to Liability.

As noted above, the County presently intends to continueoperation of the recovery well system and construction andoperation of the treatment plant. Absent a change in thosecircumstances, it is the County's position that it should bereleased from any further liability. It is also the county'sposition that any reopeners to liability should be limited toany additional remedial action necessary to ensure compliance withthe May, 1987 permit effluent limitations and to ensure that aneffective groundwater divide is being maintained. Such reopenerliability should apply to all PRP's, not only the County, and anyadditional remedial action (including, but not limited to,modifications to the treatment plant) resulting from conditionsnot solely attributable to the Army Creek site should .be excludedfrom the reopeners applicable to the County.

This good faith proposal by the County should not beconstrued in any manner as an admission of liability forconditions at the Army Creek or DS&G Landfills under CERCLA or anyother applicable state or federal statute or regulation orcommon law. The proposal is being made solely with the intent ofprotecting public health and the environment and as a means ofexpeditiously resolving any claims that might be asserted by EPA.A written response to this proposal will be appreciated, andplease contact the undersigned should you have any questions.3-0

10 We received this past Thursday, April 20, from Karen Kellen adraft of a "Partial Consent Decree for Operable Unit one." Asanticipated in Ms. Kellen's April 19 transmittal letter, thecounty did not have an opportunity to study this draft fully priorto this submission. He would note preliminarily, however, thatthe draft did r.;t specifically encompass the recovery well systemand treatment plant and that its terras generally are not wellsuited to a situation where the work items at p fij.n. this case,already completed or substantially underway. "MfrWUB&i^it EPA'sContinued on following page

SCHMELTZER, AFTAKER & SHEPPARD, P.C,

Mr. Eric M. NewnanApril 21, 1989Page 8

Sincerely yours,

George J. Wainer

GJW/mezEnc.

cc: Mr. Dennis GreenhouseMr. Robert MaxwellDonald E. Marston, Esq.Mr. David C. Clarfc, P.E.Mr. Vincent D'AnnaKaren Kellen, Esq.Jeanne L. Langdon, Esq.

continued from previous pageresponse to this submission before commenting further on the draftdecree< AR200563

UNITED STATES ENVIRONMENTAL PROTECTION AGENCV•

xhfl MAMER <5FNEW CASTLE COUNT*, DELAWARE

Respondent ) Docket No. XH-B'-'.'-KPROCEEDING UNDER SECTION 106(a) )OP THE COMPREHENSIVE ENVIRONMENTAL)RESPONSE, COMPENSATION AND )LIABILITY ACT OF 1980, )(42'C.S.C.' S 960S(a)V • • • • • • ) ,

CONSENT AGREEMENT AMD ORDER

Tha followin; Order, agreed to by. the United States ErrijciiiMn'??4

Protection Agency ("EPA") anc! Kew Castlo County, Dtlavtn I"Csvr.

is issued pursuant to the authority vested in the Adiiiiii :•*.-•.•'. ~.: •

tha SPA by Section lU6(a) oJ the Conprehensiva Snvironi'?r.cfc; ?,?!••

Conpensacion and Liability Act oi 1980 '("CERCLA"), 42 .'.S.1.:. 5 p.

9606(a). The Adainistrator has delegated this author:,'.,1. V ill?

Regional Adni'nistrator, EPA Region III. Notice oJ the IT. .r.zr. •••

this Order has been given to the State of Delaware.

FIN PI MS

1. New c?.stle County is i political subdivision :f tf.s S1-?*

Dalaware.

2. During the period £:ca ."aptenber 27, 1960, tc £ep:ei^!r

1962, tha County entered into a third party Agreement, vh<3:aSy SI

County leased cartain property froa Doaiinic and Marion Cint'ira, r

landfilling purposes. Lanejfilling operations, under tha .'i5:9-.':.::i

v,-ere conducted by Landfill, Inc., an independent contr:c':cr. In

Sapteaber, 1962, the County purchased the property frc::: ^''

and operations continued to be directed by Landfill, IP,?, Jii' M.

'1963, Landfill, Ino.'s assets and stocks were sold to iiatarh-irs

<• -2-inc. and four (4) individuals. Operations at this sics c;assd ir. 196;This site, known es the Amy Creek Landfill, is located rvjrcijir.jtsly

two (2) niles southwest of New Castle, Delaware and is t.c:-dared byAray Creek, which discharges Into the Delaware River ons (I) nils :o

the east. The County presently owns the site.3. EPA considers the Aray Creek Landfill ("the F>:ii!-.yn) to bs

a Facility as defined by Section 101(9) of CERCLA, 42 y.S.C, S ??')!(3!

4. On November S, 10 and 11, 1981, authorized rup:?s?nt«ti"j3

cf S?A conducted sampling and analytical activities at: .".r.d p.ijcevit

co the facility and the neighboring industrial landf.il.1 ".."r'n ts

Selsware Sand and Gravel Landfill. During March 1984- '.•.•Javart f:niand Graval Landfill was the object of an inaediate ren:vp,l sc':i?r. by

£?A. • The County had no responsibility for, or participation in.Delaware Sand and Gravel's landfilling operations.

S. rjialysis oS well and surface water and sedin:::: -:;:ji'::.: ::

ar.d in the vicinity at the Facility and Delaware Sand si"j 7:?vsl

landfill has revealed the presence cf substances dafi:1::1.1 us hs-.avSc1,:;

by Section 101(14) of CE?,CLA, 42 S 9601(14).

6. No potentially responsible party other than tr.: Ccanty uss '

voluntarily assumed the responsibility for protection '.', pufcli-.

health and the environment iron such threat as the Facility pay

pose. Since the discovery cf a groundwater quality prcilaa l:i "•":.

the County has spent approxisately 3.6 million dollar;; •.'sflr.i!'.; "!i?

situation, developing/ constructing and naintsining r n^aiiicl r',':,'.r:

.' ,prcgri=, and studying nusersus cleanup options and (fR Qcfl J6&"11'1'' •rhese options and control alternatives were reviewed <••: .• i un'!1.-?; ••

Cor.ferenca, sponsored by S?A, on Novesber 17 and IS, ' .'•*,« i»k>«<•:•• •<

, ' C /-F =

- 3 -. . _by solid wait* experts from the United States and Canada. The County

u.odifiad an alternative recommended by the Soundtable sr/j ciavelspad '

a plan at action, EPA has determined/ and so notified ths County,

that taken together, thesa previous studits constitute a remedial

Investigation (&!}•

DSTSS.MINATION

7. Based on the above Findings, the Regional Adrslp.istratsr,Region II! has determined that there may be an imminent cnc sussi;i!!1:/'-'

endaagerment to the public health or walfara or the a'.iv!.renmir:s. .i-;s

to the release and/or threatened release o: hazardous -'.••'-•.•r.-.'ir

from, and in the vicinity of, tha Arny Creek Landfill, i.:'i!is!i ij, u:\£has since September, 1962 been, owned by che County. Ths P.eciicnai

Administrator has determined that the actions ordered jp-j r.;ra-!d ',,.below are necessary to protect the public health and V9l«::« and ih»

environaent.

8, No part of this agreement'shall constitute c: !.••:• intr.-cvst;••:

or construed as an admission on the part of the County tcnssrri:.:.

liability under any federal, state, or local law,, or ':!:>.; ihs C':vr::v

is in violation of such laws. !Io part of this agreensr.s shall

constitute or be interpreted or construed as an adniss'.:r. cr ac.vr'.».',••:•,

by the County that the Army CreeX Landfill is a "Facility" ?.s diiliiiic-ci

in 42 U.S.C. S 9601 (9), that a release o* hazardous cytssance? •::•.

defined in 42 U.S.C. S 9601 (14) has occurred time, cr ir.r.*: t!;:?:; :

an imminent and substantial e.-.iansermant to the publj.7 i!:ai:h 07

velfare or the environment due so the raluase or Sr-"--.:ir.'d-:v:.'?.:•••

, of hazardous substances fror. :':.s Landfill. No part c.' :!sis jjrr:••••:

- 4 -__, -

shall b« adaissibla as evidence in any Court or adminis- ratlve soily,

except as ntcessary for jurpcs* of enforcement of this rjricissn: cr '

to prove the existence and nature of this agreement,

ORDER

9. The County and EPA hereby agree that, in acco:d:nc3 vith

Section 106{a) ot C2RCLA, 42 U.S.C. $ 9606(a), the County shall

subait to EPA by Noveaber 12, 1984, a Feasibility Study, which slisllcc=;ly with the provisions ci 40 C.F.R. S 300.68(g), (M, («.), ^f.

(j) ar.d tho Draft Guiiar.ee icr Preparaticn ci Pessibil!•:;,• ,?v."JJ!:.

sor.tair.eiJ in Apjenilix A here:o and snail be performed .'r. R?.soi"'r,:t';j

with tho Work Plan contained in Appendix 3 hereto.10. It is the intention o£ the parties to this Arjasr'snt *: 5cll."

she ccspletion of the ?S Study provided for herein with sinllai-, vjr. o

faith negotiations intended to result in a further co:"?7.'ii tjvv:'1 -w;:;.

regarding reaedial actio:,. Accordingly, the E?A shall r.cc initipss,t

prosecute against the County, or Join as a party adve:?" to ;hr

County in, any litigation under Section 105(a) or Secf.icr. i?7(:| c:

CS?.CLA, 42 U.S.C. S 960fi(a) ana S 9607(a) with regard to raaedifil

action, during all tiaes that Hew Castle County is no: in braach c£

this Agteenent, or having successfully concluded its t:cponsiciiii:iv:'

under this Agreecent, during all times that New Castls Cc^nty itengaged in further negotiatior.s with the SPA, vhioh arc. pricscti:':;;

satisfactorily, regarding a consent agreerr.snt cdncernir- rewedi^1.

action, or is not in breach cf any further consent aAfi' OO S1?'"-1'results! froa such negotistions/ as the EPA in each ir^lruss slisll

iatsraine in the exercise c: its reascnsole discret)'-"' i- -'•-

"••1 , - S -

event of a btiach of any such agreement, or should the r.ii'J £or :sr,sv>;actions to b« taken at the Facility arise, SPA shall hsvs such righ-s'and remedies as are available to it under the law,

S?A REVIEW

11. The County agrees to perform th« Feasibility Study in a^srcl-ance with the procedures and schedules established in paragrspli F,

After presentation to EPA of reports required to be subKittsd ;. 'raur:;':to this Order, SPA shall review such Reports and notify t!ie Covniy

in writing of its approval or disapproval of the Reppr':?. rr a; rpart thereof. In the event of any disapproval, SPA shr.ll specify inwriting both the reasons for such disapproval and a schsdul? £cr

respoh'se by the County based on the type of the deficiencirs Jc'jr.d.

The County shall anend such Reports and perfora cny aif/.l'.'jic-nr.l " "'.'; 'as required as a result of such disapproval pursuant >.z ;J'A rivitv, i

PU5L:c''CO:i!-!EN'T

12. Upon subraittal to SPA of an approved Feasibility study t'.m-'.

Report, EPA shall sake such Feasibility Study Final Rcjort cvai;.: '.

to the public for review and cosaent for, at a nininuia,. a i'./er.ty-:!;',-

(21) day period, pursuant to £?A's Ccrcunity Relations Policy.

Folloving the public review and cosnsnt period, SPA shall j-.ctify i,i;j

County of the remedial action alternative approved fry ths Faci3.,":y.EPA's final selection and approval of a remedial

•shall constitute a Record of Saeisicn for the Fa

SSCOSD ?SESSR7AT!OH

13. The County ah«ll preserve all records dev.lope^ „.,.„..,..

««.tion o, thi. order .or . period of a6 lM<6 ('9"}'rapietionQESIGNAT5Q COORDINATOR;

On or bafora th, cf ._. ; « -

Mi;,:oc by ths nt -', Plan at 40 c.P.a. 300.

«- All actions undertaken pursuant to this Order h- .... Co, .or lts "*«™w» ***** T=7 wi:h.au fl;;;;;;b;::;• - laws Md ^ - ---ir State

•such lavs. " " """""" """"** Und- «»y

, ». If anv event occurs v,ich caU3ea delay in =he tm^

=«• r.qulr.a.nb. of this Order, the county shall Proaptjv _1... " '"

EPVi Designated Facility Coo=-ir.a:or orally ar,d AfiJOQ?^,, !.(7). days of oral notification := E?Af Mtlfy E?A ln"witlni";. '^ '

- 7 -

anticipated length and cause o2 the delay, the neasures tahen tnd t=

be taken to prevent or minimize the delay and'the tia«abis t; vhis!,

the County intends to implement these measures. The County shall

have the burden of demonstrating that th» circumstances causir.g BUS!;

a delay w«r« beyond its control, If the parties can agrse that t!iadelay or anticipated delay has been or will be caused by cii-cvMtar.csrbeyond the reasonable control at the County, the tine for eerssoianeehereunder shall be extended ics a period equal to the da?.8y rssuliii^

from such circumstances. The County shall adopt all roHscnabivmeasures to avoid or minimize sslay. Eailure of th^ Cfjntv- tc -.viv.!;

with the notice requirements ci this paragraph shall ?*nisr tui".

paragraph void and constitute a waiver oi the County's right ts v«q-j«-

a de-lay. Increased costs o£ ?s:foraance o£ the terms sj this Crv«r

or changed economic circumstances shall not be consid-,r:cS sirrun--k.?i/

beyond the control of the Cour.ty.

ac'csss

17. The County hereby 45-6" that: SPA'S Designs::::! rscili-.v

Coordinator and/or 2PA employees, agents, consultants, oo:itra::o:5(

authorized representatives, end Delaware CSRSC pecacr.nsl shall ta

permitted to en^er and treely "eve about the Facility at sll rat-

able times, includinc, but r.ot U;:ir.ed to, any time -.hat <;«!: lu-

being carried cut pursuant to this Ordsr, for the pusjsss cf iro?:'."-'or observing the County's preSr»s in isplemoncifio ti;j ««ivi:^B

undertaken in accordance w<- this Orier, "JW a =: v r - - « f ,

the data submitted to EPA sy -.ha County concerning s-.-si: !rrls'.-vr."

and for the pu^poea of jerforr.ing necessary renodi- ' • • • • • - " " •••"-• '

r. - r:

tha County.not perfora such actions itself. Ma County jHell Femit

such porsoni to inspect and cc?y all records, documents M* st.-.ee

writings, including all saspling and monitoring data, in any waypertaining to work undertaken pursuant to this Order, and ts cb:slr.representative and/or split samples for hazardous substsnss testingand evaluation. All parties with access to the Facility syrsusnt tsthis paragraph shall eeaply with all approved health and s-.'sty

plans and all laws and regulations applicable to the r'lgclssurs si

confidential business indorsation. The County agrees tn '.p.iernii:;;

and siva and hold SPA, its s;en'.s and employees, h a ra» .>-;.• :'T::- vy

ar.d all clair.s or causes of action arising froa, or en ?c:c"J! -,f,acts or omissions of the County, its agents or assigns, in carrying

out the activities pursuant to this Order.

HOTICB

18. Hher.e.ver notice is required to be given or a r.scrr-., rl'.T :

other docu.-s8.it is required to be forwarsed by or.r par-.; to an:'.!:»!'.

it shall be directed to the Designated Facility Coordir.srrrs, ;::: = :.•

those individuals or their successes give notice in •••rising t: '.!:t

other party of another individual designated to rece?.-? sv.ch c:r,;iur.,

cations.PI SPOTS RSSOLUTIOH

19. If the County objects to any SPA notice of Sirs;?:?1:*!. «"

decision aada with regard to the sufficiency of the r<- ?,>rf?rr," •< r;

the County pursuant to this Order, it *ftfl2&g$ | ":" in ':i' '; 'its objections within fourteen (14) days of receipt el •:!•.» s!«-.: 1 .'!"•.•

SPA and the County shall tr.er. have an additional four:?on il'.i '.':•;••

- 9 "

st.ten.nt

>,. ,„, M.

of any s«sites.

Notaing in , , .-.„, -o- its out, tfc. County ^reesaveral. -c. --a . aC6'i:!tiss

-, ..--•-.. with respect to tr.a as.*--•- - — "

efforts

AR200573

Dnted, anterad and tfftcciv* UNITED STATES EJiviR-wp

1984. By; _f//if-//£.J .:':' '_' ,• ,• -iaufiAS y. ElCHUpr——"Regional Adninissreto"SPA, Region III

NEH

3yt .

AR20057I*

APPENDIX 3KORK PLAN_

Tha Feasibility Study performed for the Army Creek Landfill facility

shall includ* an analysis of several selected cleanup cptisns using '

tha procedures and criteria set forth ir. 40 C.F.R. S 3C;,f9. :hsFeasibility study shall present these options, and then svsluaiethea in detail using tha following criteria as .set forth in d3':si),in Appendix A;

a) Technical Feasibility;b) Monetary Costs;c) Snvironaental Effectiveness;

• d) Tiae Required tc Ir.jlanent;

a) Institutional Factors; and

C) Post-closure Monitoring,

••Ths-Feasibility Study shall also include a reconaenda>.i5;-. ;cr c ',)>\\ jof action to clean u? the site in accordance with 40 c r.r., • :?.'!.<'*•:•',she rationale used in selecting the recosaer.ded optioi,, iMid th?

reasons for rejecting the other alternatives. The Fe«!il^iiity ?r'.'c;"

performed for the Aray Creek Landfill facility shall s-s:l£irsliy

include the following:

A. A detailed discussion of the findings and coniiiucScr.s rvuilisv

by the Roundtable Conference convened.,in Ncves^er, 19"?, Such dis-

cussion shall include a comparison of the options con^^rcd and

reasons for their selection or elininaticn as faasibls Rltesr.sti-is,Previous studies shall be discussed and referenced wh*:8 crcllc:1;::,

S. A detailed discussion of the work done as a MM'<£ArftS-Ttft?

?.oundsnolB. This shall include new sampling efforts, cVjdieo c:,1,';:,1"1;:

after thr Rcundts'ile Conference, and physical work do-,: ?p.-sit:':,

.'he discussion tna.ll include dravrings showing the exact location cC

wells and othar pertinent information, including a feasibility e:ie;ys!sof a cap or other structures.

, C, An asaassnwnt of how information gathered afts: tiis r.iundtcM;t i

Confacenca affects tha Roundtable conclusions and the typo ci rsiasdiil

action currently baing conducted by tha County, ThiJ discussion shallre-evaluate previously discussad alternatives using ths five critgsia

previously notad in this paragraph. The analysis of aliEcrativea ••!i;.i;include, bub nob ba United to, the following specific :r.?E?urj«-

i) a feasibility analysis ior a cap to be constr;.':,is: 1.1 c v.-1-.'",:-.-sufficient to prevent the release of hazardous substance r;; ilia?acilifty?

, ii) an assessment of the r.aturo and extent of erair:ic';j into '..'is4ir at tha Facility and, if such enissions are found to b? rcjvr^-'.v?,an evaluation of resedies for abating such emissions;

iii) a feasibility analysis for intercepting tha girsundwatermoving laterally through the Facility in a manner su£ii".iciit is

N /'' "prevent interaingling of such grcundwater with hazardous sutsttnsss-present at the Facility;

i?) a feasibility analysis of a system to treat and dispose of

recovered contaminated groundwaeer in accordance with ail ."ypllcjifclsstatutes and regulations; and

v) a feasibility analysis ior the provision of an ftltansata

pernar.ent water supply for ail households with wells whit-i: sr; sen1-.!1"'.'An200576nat"'1 by hazardous substances and which contamination i'.iy tj-t-tti1.'.' i

b' jle to the Facility.