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HomeMy WebLinkAbout5.235 Original ContractMEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT (the "Memorandum is made and entered into as of the 17th day of January, 1990 by and among those parties that execute counterparts hereof (the "Participating PRPs as follows: RECITALS 1. The United States Environmental Protection Agency "EPA alleges that there is a release or threat of release of hazardous substances from the Northwest Transformer Mission /Pole Site (the "Site") which is located near Everson, Whatcom County, Washington as identified more particularly in the Record of Decision for the Site issued by EPA on September 15, 1989. 2. EPA has notified numerous entities that they are Potentially Responsible Parties "PRPs and may be liable under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq. "CERCLA for response costs previously incurred or to be incurred during the course of investigation and remediation of suspected contamination at the Site. 3. EPA has also brought suit against certain of the PRPs seeking recovery of response costs incurred and to be incurred 5,235 by the United States as well as injunctive relief which require that those PRPs perform the remedial action at the Site. 4. On September 15, 1989, EPA issued the ROD for the Site. The ROD selected in situ vitrification as the remedy for the contaminated soils operable unit at the Site. 5. EPA has determined that a Treatability Study should be conducted to establish parameters for the vitrification remedy and to obtain more information concerning anticipated remedial costs. 6. Each of the Participating PRPs has executed an Administrative Order on Consent "Consent Order with EPA under which they are to pay for and conduct the Treatability Study in accordance with the provisions set forth therein. 7. Puget Sound Power Light Company "Puget" or "Puget Power is willing to hire a Consultant and a Contractor as defined herein for the purpose of conducting the Treatability Study. 8. The Participating PRPs are willing to contribute to the costs of conducting the Treatability Study according to the terms and conditions set forth herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the foregoing recitals and the exchange of the following covenants, the Participating PRPs agree as follows: SECTION 1. CONDITIONS PRECEDENT TO OPERATION 1.1 Effective Date. This Memorandum shall become effective upon execution by Puget Power, Snohomish County Public Utility District No. 1, and at least 5 additional PRPs listed in Exhibit B. 1.2 Evidence of Authority. A PRP shall be deemed to have executed this Memorandum for purposes of this section when a counterpart of this Memorandum, executed by such PRP and accompanied by evidence of authority of such PRP to enter into this Memorandum, is received at the following address: Gary R. Reid, OBC -11S Puget Power P.O. Box 97034 Bellevue, WA 98009 -9734 1.3 Notification of Effective Date. Puget shall promptly notify all Participating PRPs of the date on which the conditions precedent set out in this Section have been satisfied (the "Effective Date"). SECTION 2. SCOPE OF MEMORANDUM This Memorandum applies only to the conduct of the Treatability Study and does not obligate the Participating PRPs to participate in any remedial action or other Site related activity. SECTION 3. RELATIONSHIP OF PARTIES (a) The Participating PRPs agree that this Memorandum does not create any fiduciary or attorney- client relationship among any of the Participating PRPs. (b) Nothing herein shall be construed to authorize any Participating PRP to act as agent for any individual Participating PRP or for the Participating PRPs as a group. (c) In performing any activity hereunder, Participating PRPs and all other persons shall be deemed to act as independent contractors. SECTION 4. PROJECT COORDINATOR Puget Power intends to employ a Project Coordinator to oversee the activities of the Consultant and the Contractor, to communicate with the Participating PRPs from time to time regarding progress of the Treatability Study, and to act as contact between the Participating PRPs and EPA. SECTION 5. RETENTION OF CONSULTANT Puget Power intends to retain the services of a consultant (the "Consultant to hire and oversee the services of the Contractor. SECTION 6. RETENTION OF CONTRACTOR Puget Power intends to retain the services of a contractor (the "Contractor to perform some or all of the Treatability Study either directly or through subcontract with the Consultant. SECTION 7. TREATABILITY STUDY COSTS (a) The costs to be incurred pursuant to this Memorandum "Treatability Study Costs shall consist of (1) fees and expenses advanced, billed or accrued by any contractors, including the Consultant, Contractor, or other personnel, to conduct the Treatability Study as provided herein; (2) actual administrative expenses incurred by Puget Power in connection with the conduct of the Treatability Study, including but not limited to copying charges, long distance telephone calls, supplies, and contingencies as reasonable and necessary to accomplish the purposes of this Memorandum; and (3) any penalties (including stipulated penalties) imposed by EPA on the participating PRPs pursuant to the Consent Order. (b) Each Participating PRP will reimburse Puget Power for the Participating PRP's Share of Treatability Study Costs according to the allocation formula set forth in Exhibit A hereto and the payment schedule set forth in Exhibit B hereto. (c) Adoption of this formula is made only for the limited purpose of reimbursing Treatability Study Costs. This formula shall not govern allocation of financial responsibility for any other costs incurred or to be incurred in connection with the Site and shall not constitute an admission of any liability. (d) The Participating PRPs agree that all amounts contributed by a Participating PRP hereunder shall be credited against that Participating PRP's cost allocation for whatever response costs, if any, are addressed under any subsequent agreement or agreements. SECTION 8. TEST REPORTS AND DATA Monthly progress reports submitted to EPA under the Consent Order will be distributed to all Participating PRPs. All other test reports and data supplied by the Consultant or Contractor shall be available for inspection by any Participating PRP. Copies of such reports and data will be supplied to any Participating PRP upon request. The costs of reproduction and distribution of such requested reports and data shall be borne by the Participating PRP requesting them. SECTION _2. LIABILITY This Agreement is intended to avoid litigation. The Participating PRPs do not concede liability concerning the Site or materials alleged to have been shipped to or released from the Site. SECTION 10. CONTRIBUTION AND INDEMNITY This Memorandum is without prejudice to any claims for contribution or indemnity by any Participating PRP against any other PRP or any other person or entity. All such claims are expressly reserved. SECTION 11. ENFORCEABILITY BY THIRD PARTIES This Memorandum is expressly not intended for the benefit of any third party and is expressly not enforceable by any third party. SECTION 12. GENERAL PROVISIONS 12.1 Notices. All notices and other communications to Puget Power or other Participating PRPs shall be in writing. All notices and payments to Puget shall be mailed or delivered to the following address: Gary R. Reid, OBC -11S, Puget Power, P.O. Box 97034, Bellevue, WA 98009 9734. All notices to be sent to other Participating PRPs shall be mailed or delivered to the address given by the Participating PRPs in executing this Memorandum. Notices shall be deemed given when deposited in the United States Mail. 12.2 Amendments. Amendments to this Memorandum shall become effective upon approval in writing of all Participating PRPs. 12.3 Entire Aareement. This Memorandum, including all attached exhibits, contains the entire understanding of the Participating PRPs and supersedes all prior agreements and understandings among the Participating PRPs relating to the subject matter of this Memorandum. 12.4 Headings. The headings used in this Memorandum have been inserted for convenience only and shall not affect the construction of this Memorandum. 12.5 Counterparts. This Memorandum may be executed in any number of counterparts, each of which may have the signature of only one Participating PRP, but each of which shall be deemed an original; and all of which, when taken together, shall be deemed to be a single agreement among all of the Participating PRPs. 12.6 Severabilitv. The invalidity or unenforceability of any provision of this Memorandum shall not affect the other provisions hereof and this Memorandum shall be construed in all respects as if such invalid and unenforceable provisions were omitted. 12.7 Applicable Law. Al] parties agree that this agreement and the contents thereof shall be interpreted and enforced pursuant to the laws of the State of Washington pertaining to an agreement made and to be implemented in said state. EXECUTED this 6th day of February 1990. A5138V City of Port Angeles Participating PRP By: cax Title (j Mayor U Address: 321 East 5th Street Port Anaeles, WA 98362 Alleged PRP Puget Power Snohomish PUD EXHIBIT A ALLOCATION OF TREATABILITY STUDY COSTS Share Any of the following alleged PRPs which executes this Memorandum: $2,500 A. B. Chance /Pauwels Chance AFB, McChord Alaska Electric Light Power Co. Allis Chalmers Anixter Pruzan Annapolis Water District Beaver Electrical Machinery Bellingham Public School District #501/ Roosevelt Junior High School Benton Co. PUD Benton Co. Rural Electic Association Blackfeet Indian Developers, Inc. Blaine, City of Boundary Electric Limited Centralia, City of Clallam County PUD #1 -10- 2/3 of Treatability Study Costs not paid by PRPs other than itself and Snohomish PUD 1/3 of Treatability Study Costs not paid by PRPs other than itself and Puget Power Clark County PUD Columbia Basin Electric Cooperative Inc. Columbia Rural Electric Association Cooper Industries Cowlitz County PUD Dale's Electric, Inc. Darigold Delta, Corporation of Douglas Co. PUD #1 Elenbaas Feed Company, Inc. Elmhurst Mutual Power Light Co. Everett Housing Authority Fircrest, Town of Forest Grove, City of General Metals of Tacoma, Inc. General Pacific, Inc. Georgia- Pacific Corporation Goodwin Electric Co. Grant County PUD #2 Grays Harbor PUD #1 Harney Electric Cooperative, Inc. Harris Electric, Inc. Hawaiian Electric, Inc. (Rees Enterprises, Inc.) Homer E. Pauriea Co. Idaho Power Co. Kootenai Electric Coop. Lakeview Light Power Co. Lewis County PUD #1 Lynden Incorporated Mid State Elec. Coop., Inc. Milton, Town of N.W. Electric Navy, Dept. of Nooksack Valley High School Northern Wasco County PUD Oak Harbor School District Ohop Mutual Oly. Tech. Comm. Col. Orcas Power Light Pacific Power Light Co. Paradise Lakes Country Club Parkland Light Water Co. Peninsula Light Co. City of Port Angeles City Light Potelco, Inc. Richland, City of Rosen's Elec. Equip. Seattle City Light Service Electric Co., Inc. Stusser Electric Sumas, City of Tacoma, City of Tanner Electric Cooperative Texaco Refining Marketing, Inc. Tillumuck County PUD Trans Mountain Pipeline Corp. Turbodyne Corp. Utility Supply Co., Inc. Wahkiakum County PUD #1 Washington State Dept. of Transportation West Oregon Electric Cooperative, Inc. Westinghouse Canada Whatcom Electric Plumbing Noah Wallace and Merle Sidell, individually, and d /b /a as Northwest Transformer Company Whatcom Builders, Inc. Sue Ann Heutnink, as representative of the Estate of Claude L. Potts, deceased, (and Larry A. Potts and Garry A. Potts as co- trustees of the trust u/w of Theotista M. Potts, deceased) EXHIBIT }3 SCHEDULE OF PAYMENTS (1) All Participating PRPs other than Puget Power and Snohomish County PUD: payment in full within 30 days of notification by Puget pursuant to Section 1.3. (2) Snohomish County PUD: within 30 days of receipt of invoice from Puget Power following completion of the Treatability Study. (3) In the event the total of payments by Participating PRPs other than Puget Power and Snohomish County PUD exceeds total Treatability Study Costs, such excess shall be refunded to such PRPs pry rata within 60 days of completion of the Treatability Study. A5150V 1 2 3 4 5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 6 1200 Sixth Avenue Seattle, Washington 98101 IN THE MATTER OF: 8 Docket No. 1089- 12 -05- 104/122 NORTHWEST TRANSFORMER 9 (Mission /Pole) Facility, Whatcom County, Washington. ADMINISTRATIVE ORDER 10 ON CONSENT Proceeding Under Sections 122 11 and 104 of the Comprehensive Environmental Response, 12 Compensation, and Liability Act of 1980, as amended by the) 13 Superfund Amendments and Reauthorization Act of 1986, 14 42 U.S.C. 9622 and 9604. JURISDICTION 1. This Administrative Order on Consent (Consent Order) is issued pursuant to the authority vested in the President of the United States by Sections 122 and 104 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9622 and 9604, which authority was delegated to the Administrator of the United States Environmental Protection Agency (EPA) on January 23, 1987, by Executive Order 12580, 52 Fed. Reg. 2923, and to the Regional Administrators by EPA Delegation Nos. 14 -8 -A and 14 -14 -C, and 7 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 1 5.235 1 further delegated to the Director of the Hazardous Waste 2 Division, EPA Region 10, on April 8, 1987. 3 4 public entities (hereinafter collectively referred to as 5 Respondents) listed in Attachment A, incorporated by reference as 6 if fully set forth herein. Respondents base their participation 7 on an independent allocation of costs, agreed to among 8 themselves, for actions to be performed pursuant to this Consent 9 Order. 10 3. By the signatures appearing below, Respondents 11 hereby consent and agree to (a) issuance of this Consent Order, 12 (b) undertake the required actions and comply with the provisions 13 hereunder, and (c) waive all rights to dispute the Federal 14 jurisdiction and authority of EPA to issue or enforce this 15 Consent Order. 16 PARTIES BOUND 17 4. This Consent Order shall apply to and be binding 18 upon Respondents. 19 5. Each undersigned representative of Respondents 20 certifies that he or she is fully authorized to enter into the 21 terms and conditions of this Consent Order and to execute and 22 legally bind such party to this document. 23 6. Respondents shall provide or arrange to have 24 provided a copy of this Consent Order to all agents, employees, 25 servants, persons, firms, subsidiaries, divisions, contractors, 26 sub contractors, laboratories, and consultants used, employed, or 27 2. This Consent Order is issued to the companies and 28 ADMINISTRATIVE ORDER ON CONSENT Page 2 19 27 1 retained to conduct any portion of the actions performed pursuant 2 to this Consent Order prior to performance of such actions, and 3 will require such persons and entities to conduct such actions in 4 conformance with this Consent Order. 5 7. No change in ownership, corporate, or partnership 6 status shall in any way alter the responsibility of Respondents 7 to carry out the actions required by this Consent Order. 8 9 PURPOSES AND OBJECTIVES 10 8. In entering into this Consent Order, the mutual 11 purposes and objectives of EPA and Respondents are to perform a 12 treatability study in accordance with the Work Plan attached 13 hereto as Attachment B. 14 9. Respondents will perform the treatability study in 15 a manner consistent with the National Contingency Plan (NCP), 16 40 C.F.R. Part 300, 50 Fed. Reg. 47912 (November 20, 1985), 17 CERCLA, and the Record of Decision (ROD) issued by EPA for the 18 Northwest Transformer (NWT) site on September 15, 1989. 20 DENIAL OF RESPONDENTS 21 10. Respondents, individually and as a group, 22 specifically deny any liability or responsibility for the 23 existence of hazardous substances at the Northwest Transformer 24 (Mission /Pole) facility (hereinafter referred to as the NWT 25 site), and specifically deny the following Finding of Fact and 26 Conclusions and Determination. The actions undertaken by 28 ADMINISTRATIVE ORDER ON CONSENT Page 3 1 Respondents in accordance with this Consent Order do not 2 constitute an admission by Respondents of any violation of state 3 or federal law or an admission by Respondents of any violation of 4 state or federal law or an admission of any liability by 5 Respondents to EPA, the State of Washington, or any person or 6 entity. Nor shall this Consent Order be used as evidence or as 7 collateral estoppel against Respondents in any action or 8 proceeding other than an action to enforce the terms of this 9 Consent Order. 10 11 FINDINGS OF FACT 12 11. EPA makes the following findings of fact: 13 (a) The NWT site is located approximately two 14 miles south of Everson in Whatcom County, Washington. The NWT 15 site, located immediately southwest of the intersection of 16 Mission and Pole Roads, occupies approximately 1.6 acres in the 17 northeast quarter of the northeast quarter of Section 12, 18 Township 39 N, Range 3 E, Willamette Meridian. 19 (b) The NWT site is bordered by low density 20 residential areas to the north and east, and by agricultural 21 fields to the south. A small gravel pit is located approximately 22 500 feet to the west. Land use in the area is comprised mainly 23 of rural homesteads, dairies, and farms, with approximately 200 24 persons living within a one -mile radius of the NWT site. A 25 residential subdivision is presently being constructed near the 26 NWT site. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 4 1 (c) The NWT site was primarily used for the 2 storage and salvage of transformers prior to final disposition 3 (repair, rebuild, or sale as scrap) or transportation to another 4 facility for recycling. Activities at the NWT site included 5 storage of transformers; removal of dielectric fluids from the 6 transformers in the barn; burning of transformer cores and 7 associated parts in an air curtain open pit incinerator; and 8 scrap metal reclamation. During operations there was spillage 9 and leakage of transformer oil onto the ground. In addition, 10 transformer oil was placed directly into a seepage pit (sometimes 11 referred to as the septic tank), in the southeast portion of the 12 NWT site, where it may have seeped out into the surrounding soil. 13 (d) According to Federal regulations, 40 C.F.R. 14 761.3, established pursuant to the Toxic Substances Control 15 Act, 15 U.S.C. 2601 et seq., oil filled electrical equipment, 16 including transformers, whose polychlorinated biphenyl (PCB) 17 concentration is unknown, must be assumed to contain 50 to 500 18 parts per million PCB. 19 (e) Information available to EPA indicates that 20 Respondents may have provided transformers which were repaired, 21 rebuilt, dismantled, or salvaged at the NWT site. 22 (f) The NWT site has been inspected by Federal and 23 State agencies several times, and soil samples have been 24 collected on a number of occasions since 1977. The results from 25 the inspections and sampling have revealed the presence of PCBs 26 in soils at the NWT site. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 5 1 (g) In 1984, the NWT site was added to the 2 National Priorities List (NPL) pursuant to Section 105 of CERCLA 3 42 U.S.0 9605. 4 (h) In April and May of 1985, EPA implemented an 5 immediate removal action at the NWT site, which included: (1) 6 enclosure of the NWT site with a chain -link fence; (2) excavation 7 and disposal of PCB contaminated soil and solid materials; (3) 8 draining, rinsing, and cleaning of thirty -five transformers; (4) 9 removal of PCB contaminated liquids and transformer casings; (5) 10 decontamination of concrete and selected wood surfaces of the 11 barn; (6) installation of five groundwater monitoring wells and 12 sampling of the associated soil and groundwater; and (7) domestic 13 well sampling. 14 (i) In June of 1987, EPA undertook a Remedial 15 Investigation and Feasibility Study (RI /FS) of the NWT site. The 16 purpose of the RI /FS was to gather sufficient information to 17 characterize the degree of contamination remaining at the NWT 18 site, and to evaluate alternatives for appropriate abatement of 19 such contamination. 20 (j) On September 15, 19'89, EPA issued a Record of 21 Decision "ROD for the NWT site. The ROD set forth the 22 selected EPA operable unit remedy of in situ vitrification for 23 PCB contaminated soils at the NWT site. A treatability study is 24 required prior to such remediation in order to establish 25 parameters for the ISV and obtain more information of anticipated 26 remedial costs. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 6 1 CONCLUSIONS AND DETERMINATIONS 2 12. EPA makes the following conclusions and 3 determinations: 4 (a) The NWT site is a "facility" as defined in 5 Section 101(a) of CERCLA, 42 U.S.C. 9601(a). 6 (b) Respondents are each a "person" as defined in 7 Section 101(21) of CERCLA, 42 U.S.C. 9601(21), and within the 8 meaning of Sections 104 and 122 of CERCLA, 42 U.S.C. 9604 and 9 9622. 10 (c) PCBs are "hazardous substances" as defined in 11 Section 101(14) of CERCLA, 42 U.S.C. 9601(14). 12 (d) The presence of PCBs at the NWT site 13 constitutes an actual or threatened "release" as defined in 14 Section 101(22) of CERCLA, 42 U.S.C. 9601(22). 15 (e) Respondents are each a "potentially 16 responsible party" within the meaning of Sections 104 and 122 of 17 CERCLA, 42 U.S.C. 9604 and 9622. 18 (f) On the basis of past inspections, 19 investigations and reports, and other available information, EPA 20 has determined that, pursuant to Section 104(a) of CERCLA, 21 42 U.S.C. 9604(a), there is a release or threat of release of 22 hazardous substances from the NWT site. 23 (g) The actions required by this Consent Order 24 are: (1) consistent with the NCP, (2) authorized by Section 25 104(b) of CERCLA, 42 U.S.C. 9604(b); and (3) necessary to 26 protect the public health or welfare or the environment. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 7 2 13. Respondents shall conduct a treatability study for 3 ISV at the NWT site in accordance with the Treatability Study 4 Work Plan, and schedule contained therein, which is Attachment B 5 to this Consent Order, and is incorporated by reference herein. 6 14. All actions performed pursuant to the Treatability 7 Study Work Plan shall be directed and supervised by a qualified 8 licensed engineer, professional scientist, or hydrogeologist with 9 experience in hazardous substances site investigations. Prior to 10 commencement of activities at the NWT site, Respondents shall 11 notify EPA in writing of the name, title, affiliations, and 12 background of the individual proposed as the director and 13 supervisor mentioned above, and the name, address, 14 qualifications, and affiliations of all contractors and sub 15 contractors expected to be used in performing such activities. 16 17 REPORTS AND DELIVERABLE 18 19 other "deliverables" to EPA in accordance with the Treatability 20 Study Work Plan, and schedule contained therein. 21 22 FORCE MAJEURE 23 16. If any event occurs which may cause or has caused 24 a delay in, or deviation from, achievement of the requirements of 25 this Consent Order, Respondents shall promptly notify EPA's 26 27 1 ACTIONS TO BE PERFORMED 15. Respondents shall provide reports, plans, and 28 ADMINISTRATIVE ORDER ON CONSENT Page 8 27 1 Project Coordinator orally, and shall, within five (5) working 2 days of such oral notification, notify EPA in writing of: 3 (a) the anticipated duration and cause of the 4 delay or deviation; 5 (b) the measures that have been or will be taken 6 to prevent or minimize the delay or deviation; and 7 8 measures. 9 (c) the timetable proposed for carrying out such 17. Respondents shall adopt all reasonable measures to 10 avoid or minimize deviation and delay. The burden shall be upon 11 Respondents to show that any delay or deviation was, or will be, 12 caused by circumstances beyond their reasonable control. 13 Increased costs to Respondents of performance of the terms of 14 this Consent Order or changed economic circumstances of 15 Respondents shall not be considered circumstances beyond the 16 reasonable control of Respondents. A deviation or delay caused by 17 failure of EPA to review a "deliverable plan, or report within 18 the time frames specified in the Treatability Study Work Plan 19 shall be considered circumstances beyond the reasonable control 20 of Respondents. 21 18. If EPA determines that the delay or deviation has 22 been or will be caused by circumstances beyond Respondents' 23 reasonable control, EPA will approve in writing the deviation or 24 delay and extend the time for performance of that element of work 25 for a reasonable period. Such an extension will not alter the 26 schedule for the performance or completion of other tasks unless 28 ADMINISTRATIVE ORDER ON CONSENT Page 9 27 1 they are dependant on those specifically altered. In the event 2 EPA and Respondents cannot agree that any deviation or delay has 3 or will be caused by circumstances beyond Respondents' reasonable 4 control, or if there is no agreement on the length of extension, 5 the dispute shall be resolved in accordance with the dispute 6 resolution provisions of this Consent Order. 7 8 EPA OBJECTIONS TO REPORTS. ACTIVITIES DEVIATION OR DELAY 9 19. EPA will notify Respondents in writing of any 10 report, activity, deviation, or delay to which EPA has an 11 objection or regards as deficient, will set forth in this writing 12 its reasons for any such objections, and will meet and consult 13 with Respondents in an effort to resolve any misunderstandings. 14 Not later than ten (10) calendar days after receipt of a written 15 notice of EPA objections to all or part of any report, or within 16 such additional time period as may be approved by EPA, 17 Respondents shall either comply with the EPA notification or 18 invoke dispute resolution in accordance with the dispute 19 resolution provisions of this Consent Order. 20 21 DISPUTE RESOLUTION 22 20. Respondents and EPA shall use their best efforts 23 informally and in good faith to resolve all disputes or 24 differences of opinion. If, however, disputes arise concerning 25 this Consent Order, which Respondents and EPA are unable to 26 resolve informally, either EPA shall present a written notice of 28 ADMINISTRATIVE ORDER ON CONSENT Page 10 1 such dispute to Respondents, or Respondents shall present a 2 written notice of such dispute to EPA. Within fourteen (14) 3 calendar days of receipt of such a written notice, the recipient 4 shall provide a written response. If Respondents do not so 5 respond to EPA within the fourteen (14) calendar day time period, 6 or if EPA does not concur with the position of Respondents, the 7 dispute shall be deemed resolved in favor of EPA, and Respondents 8 shall be provided with written notification of such dispute 9 resolution. If EPA concurs with the position of Respondents 10 presented in the written notice or response from Respondents, the 11 dispute shall be deemed resolved in favor of Respondents, and 12 Respondents shall be provided with written notification of such 13 dispute resolution. Upon the completion of dispute resolution in 14 accordance with this paragraph, this Consent Order will be 15 modified to include any necessary extensions of time or variances 16 of activities. 17 21. If Respondents fail or refuse to carry out any 18 actions required as a result of the written notification provided 19 by EPA in accordance with paragraph 20 above. EPA may elect to 20 carry out the action and /or initiate any other response measures 21 or enforcement action. In accordance with Sections 113(h) and 22 (j) of CERCLA, 42 U.S.C. 9613(h) and (j), there shall be no 23 judicial review of the actions required by EPA under the terms of 24 this Consent Order until such time as EPA brings an action to 25 enforce such requirements. However, with the exception of those 26 rights waived in paragraph 3 above, nothing herein shall 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 11 1 constitute a waiver of any defenses available to Respondents, and 2 Respondents specifically reserve the right to assert such 3 defenses, in an action by EPA to enforce this Consent Order. 4 22. With respect to any plan, report, or activity to 5 which EPA has an objection or regards as deficient and to which 6 stipulated penalties apply, stipulated penalties shall begin to 7 accrue on the eleventh (11th) calendar day (or within such 8 additional time period as may be approved by EPA in writing) 9 after receipt by Respondents of notice in writing from EPA of 10 such objection or deficiency and shall continue to accrue until 11 Respondents meet such objection or correct such deficiency, 12 except as provided below. However, if EPA determines that the 13 report or activity was so insufficient so as to not constitute a 14 good faith report or activity, stipulated penalties shall begin 15 to accrue on the first (1st) calendar day following the deadline 16 for implementation or submission. With respect to any delay in 17 the implementation of any activity or the submission of any 18 report or plan to which stipulated penalties apply, stipulated 19 penalties shall begin to accrue on the first (1st) calendar day 20 following the deadline for submission of such plan or report, or 21 implementation of such activity, and shall continue until 22 Respondents submit such deliverable, except as provided below. 23 23. If Respondents invoke dispute resolution with 24 respect to the foregoing, stipulated penalties, if applicable, 25 shall continue to accrue while the parties pursue dispute 26 resolution, unless Respondents can demonstrate, to the reasonable 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 12 8 9 10 11 12 13 Gary R. Reid 14 Senior Staff Engineer Puget Sound Power Light Company 15 411 108th Avenue N.E., 6th Floor Bellevue, Washington 98004 -5515 26. Within ten (10) working days of request by EPA, 17 Respondents shall provide EPA with such of the following existing 18 16 19 20 21 22 23 24 25 26 27 1 satisfaction of EPA, that these procedures were instituted in 2 good faith and not for purposes of delay. 3 4 DELIVERY OF DOCUMENTS 5 24. Documents, including reports, notices, 6 "deliverables," and other correspondence required to be submitted 7 to EPA, shall be delivered to the following: Christine Psyk Superfund Site Manager Superfund Branch, HW-113 U.S. EPA, Region 10 1200 Sixth Avenue Seattle, Washington 98101 25. Documents or notices to be submitted to Respondents should be sent to: documents in the possession of Respondents or their contractors as are not legally privileged: final plans, final task memoranda, including memoranda recording field modifications and final recommendations for further action, quality assurance memoranda and audits, final reports, raw data, field notes, laboratory analytical reports and any other documents which relate in any way to the NWT site, including those pertaining to any studies relevant to, but not specifically required by, this Consent Order. 28 ADMINISTRATIVE ORDER ON CONSENT Page 13 27 1 ADDITIONAL RESPONSE TASKS 2 27. Respondent and EPA may agree that additional 3 response tasks are necessary for an adequate and thorough 4 treatability study. Such tasks may be implemented by Respondents 5 by an amendment to this Consent Order. If Respondents and EPA do 6 not so agree, Respondents shall not be required under the terms 7 of this Consent Order to implement such tasks. 8 9 NOTICE TO EPA OF SAMPLING 10 28. Respondents shall notify EPA of any sampling 11 activity to be conducted specifically pursuant to the 12 Treatability Study Work Plan, and schedule contained therein, at 13 least seven (7) working days in advance of any such activity and 14 shall, upon verbal request, provide EPA or any representative, 15 with a split or duplicate of any sample. 16 17 PROJECT COORDINATOR 18 29. The EPA Project Coordinator is Christine Psyk. 19 Not later than five (5) working days after the effective date of 20 this Consent Order, Respondents shall designate a Project 21 Coordinator and a Substitute Project Coordinator. The Project 22 Coordinators shall be responsible for overseeing the 23 implementation of this Consent Order. To the extent possible, 24 all communications between Respondents and EPA (including 25 communication by letter, reports, notices, etc.) concerning 26 activities related to this Consent Order shall be directed 28 ADMINISTRATIVE ORDER ON CONSENT Page 14 26 27 1 through the respective Project Coordinators. Upon five (5) 2 calendar days written notice to the other party, responsibilities 3 of a party's Project Coordinator may be delegated by that party 4 to other employees or contractor employees. 5 30. EPA and Respondents may change their respective 6 Project Coordinators by notifying the persons named in paragraphs 7 24 and 25, infra., in writing no later than five (5) calendar 8 days before the date of such change. 9 10 OUALITY ASSURANCE 11 31. Throughout all sample collection, transportation, 12 and analysis activities, Respondents shall use procedures for 13 quality assurance, quality control, and chain of custody in 14 complete accordance with the Treatability Study Work Plan. In 15 addition, Respondents shall obtain access for EPA personnel and 16 authorized representatives to (a) each individual employed or 17 used by Respondents for collection or transportation or analyses 18 of samples, and (b) every laboratory record and item of equipment 19 used in connection with collection or the analysis of samples. 20 Respondents shall cause each laboratory used for analyses to 21 perform such analyses according to the methods specified in the 22 Treatability Study Work Plan. If determined to be necessary by 23 EPA, Respondents shall also require each such laboratory to 24 participate in an EPA quality assurance /performance and system 25 audit. 28 ADMINISTRATIVE ORDER ON CONSENT Page 15 2 32. Because the NWT site is presently owned by parties 3 other than those bound by this Consent Order, Respondents shall 4 have obtained or will use their best efforts to obtain access 5 agreements from the present owners within one week of the 6 effective date of this Consent Order. Such agreements shall 7 provide reasonable access to EPA and /or its authorized 8 representatives. In the event that access agreements are not 9 obtained within the time referenced above, Respondents shall 10 immediately notify EPA regarding both the lack of, and efforts to 11 obtain, such agreements. In the event Respondents are unable to 12 obtain access under reasonable terms and conditions, EPA agrees, 13 consistent with its authority, to assist Respondents in obtaining 14 access. 15 16 RETENTION OF RECORDS 17 33. Respondents shall, for a minimum of six (6) years 18 after termination of this Consent Order, preserve all currently 19 known or later identified records and documents in possession or 20 control of their divisions, employees, agents, accountant, 21 contractors or attorneys, which relate in any way to the NWT 22 site, despite any document retention policy to the contrary. 23 Upon request by EPA, Respondents shall make available to EPA such 24 records (or true copies thereof) as are not legally privileged. 25 26 27 1 FACILITY ACCESS 28 ADMINISTRATIVE ORDER ON CONSENT Page 16 10 11 12 13 14 15 16 1st through 7th calendar day 500 17 8th through 21st calendar day $1,000 18 22nd calendar day and beyond $1,500 19 35. The stipulated penalties set forth above do not 20 preclude EPA from pursuing any other remedies or sanctions 21 available to it as relief for failure by Respondents to comply 22 with any requirements of this Consent Order. 23 36. The stipulated penalty amounts shall apply to 24 Respondents as a group and not individually. However, failure of 25 any individual Respondent to provide its share of any stipulated 26 penalties, shall not relieve the remaining Respondents of their 27 1 STIPULATED PENALTIES 2 34. Except with regard to any extensions agreed to by 3 Respondents and EPA or allowed by the terms of this Consent 4 Order, for failing to comply on time with the following 5 requirements of the Treatability Study Work Plan, and schedule 6 contained therein, and upon notification by EPA, Respondents 7 shall pay the following stipulated penalties into the "Hazardous 8 Substance Response Trust Fund" according to the procedures 9 described in paragraph 37 below: Treatability Study Work Plan Requirements obtain soil samples laboratory quality assurance (QA) Plan draft Treatability Study report final Treatability Study report Period of Failure to Comply Penalty Per Violation Per Dav 28 ADMINISTRATIVE ORDER ON CONSENT Page 17 1 obligation to pay the entire amount of accumulated stipulated 2 penalties. 3 37. Respondents shall pay the stipulated penalties set 4 forth in paragraph 34 above within thirty (30) calendar days of 5 receipt of written notice from EPA. A copy of each transmittal 6 letter for payment of penalties shall be sent to the EPA Project 7 Coordinator. Checks shall specifically reference the NWT site, 8 note that payment is for penalties, and be sent to the following 9 address: 10 27 Mellon Bank U.S. Environmental Protection Agency Superfund Accounting P.O. Box 371003M Pittsburgh, Pennsylvania 15251 Attention: Collection Officer for Superfund 14 38. For any amounts overdue under the terms of this 15 Consent Order, Respondents shall be required to pay interest 16 accrued on such amounts, a charge for processing and handling a 17 delinquent payment, and a penalty for failure to pay such amounts 18 in accordance with 31 U.S.C. 3717 and 4 C.F.R. Parts 101 -104. 19 20 RESERVATION OF RIGHTS 21 39. Nothing herein is intended to resolve nor does it 22 resolve the alleged liability of Respondents under CERCLA for 23 response costs and injunctive relief. Respondents and EPA 24 reserve all rights and defenses that each may have. In 25 addition, EPA expressly reserves the right to recover from 26 Respondents all response costs incurred by EPA for any action 28 ADMINISTRATIVE ORDER ON CONSENT Page 18 1 related to this Consent Order and /or the Treatability Study Work 2 Plan. 3 40. Respondents hereby covenant not to sue the United 4 States for any claim for reimbursement of costs incurred to 5 implement this Consent Order from the Hazardous Substance 6 Superfund established pursuant to Section 221 of CERCLA, 7 42 U.S.C. 6931, or for any claims arising out of the negligence 8 of Respondents. Nothing in this Consent Order shall be deemed to 9 constitute preauthorization of a claim within the meaning of 10 Section 111 of CERCLA, 42 U.S.C. 9611 or 40 C.F.R. 300.25(d). 11 12 OTHER CLAIMS /APPLICABLE LAWS /EXONERATION /INDEMNIFICATION 13 41. Nothing in this Consent Order shall constitute or 14 be construed as a release from any claim, cause of action or 15 demand in law or equity against any person, firm, partnership, 16 corporation, or state or local governmental entity for any 17 liability it may have arising out of or relating in any way 18 the generation, storage, treatment, handling, transportation, 19 release, or disposal of any hazardous substances, hazardous 20 wastes, pollutants, or contaminants found at, taken to, or taken 21 from the NWT site. In addition, all actions required to be taken 22 pursuant to this Consent Order shall be performed in accordance 23 with the requirements of all applicable local, state, and federal 24 laws and regulations. 25 42. Respondents shall save and hold harmless the 26 United States, its agencies, officers, employees, and agents 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 19 1 (thereby exonerating the foregoing) from, and shall indemnify 2 each of the foregoing against and for, any and all claims arising 3 from or on account of acts or omissions of Respondents, or the 4 officers, employees, receivers, trustees, agents, or assigns of 5 Respondents, relating in any way to carrying out activities 6 pursuant to this Consent Order. EPA is not party to any contract 7 involving the NWT site which is made by Respondents. 8 43. Respondents shall not, however, be required to 9 indemnify or save and hold harmless the United States (or its 10 agencies, officers, agents, or employees) from any claims or 11 causes of action arising from or on account of acts or omissions 12 of the United States (or its agencies, officers, agents, or 13 employees) in carrying out activities pursuant to this Consent 14 Order. 15 16 EFFECTIVE DATE 17 44. This Consent Order becomes effective on the date 18 it is signed by the EPA Hazardous Waste Division Director, Region 19 10. 20 21 SUBSEOUENT MODIFICATIONS 22 45. This Consent Order may be amended by agreement of 23 EPA and Respondents. Amendments shall be in writing and shall 24 become effective on the date such amendments are signed by the 25 EPA Hazardous Waste Division Director, Region 10. 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 20 7 8 SATISFACTION AND TERMINATION 9 47. The duties of Respondents under this Consent Order 10 shall be satisfied upon issuance by EPA of a written notice 11 stating that Respondents have complied with all provisions of 12 this Consent Order, including such additional activities as may 13 be agreed to by Respondents and EPA. 14 15 ATTACHMENTS- 16 48. All attachments to this Consent Order are fully 17 incorporated as though set forth herein. 18 19 IT IS SO AGREED by the parties listed on Attachment A as per the 20 attached signature pages. 21 22 IT IS SO ORDERED: 23 24 DATE OF ISSUANCE 25 26 27 1 COMPUTATION OF TIME 2 46. Any time period scheduled to begin on the 3 occurrence of an act or event shall begin on the day after the 4 act or event. If the final day of any time period falls on a 5 weekend or Federal legal holiday, the time period shall be 6 extended to the next working day. 28 ADMINISTRATIVE ORDER ON CONSENT Page 21 DIRECTOR, EPA HAZARDOUS WASTE DIVISION Region 10 1 NORTHWEST TRANSFORMER (MISSION /POLE) FACILITY ADMINISTRATIVE ORDER ON CONSENT 2 SIGNATURE PAGE 3 4 The City of Port Anaeles consents to this Administrative Order on Consent (in EPA Docket No. 1089- 12 -05- 104/122), 5 including all Attachments on February 6th 1990. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 22 Company /Entity: City of Port Angeles Name: Joan K. Sargent Title: Mayor Signature v (J MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT (the "Memorandum is made and entered into as of the 17th day of January, 1990 by and among those parties that execute counterparts hereof (the "Participating PRPs as follows: RECITALS 1. The United States Environmental Protection Agency "EPA alleges that there is a release or threat of release of hazardous substances from the Northwest Transformer Mission /Pole Site (the "Site which is located near Everson, Whatcom County, Washington as identified more particularly in the Record of Decision for the Site issued by EPA on September 15, 1989. 2. EPA has notified numerous entities that they are Potentially Responsible Parties "PRPs and may be liable under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq. "CERCLA for response costs previously incurred or to be incurred during the course of investigation and remediation of suspected contamination at the Site. 3. EPA has also brought suit against certain of the PRPs seeking recovery of response costs incurred and to be incurred 5.23 5 by the United States as well as injunctive relief which require that those PRPs perform the remedial action at the Site. 4. On September 15, 1989, EPA i5ued Lhe ROD fol. the Site. The ROD selected in situ vitrification as the remedy for the contaminated soils operable unit at the Site. 5. EPA has determined that a Treatability Study should be conducted to establish parameters for the vitrification remedy and to obtain more information concerning anticipated remedial costs. 6. Each of the Participating PRPs has executed an Administrative Order on Consent ("Consent Order with EPA under which they are to pay for and conduct the Treatability Study in acco!:dance with the provisions set forth therein. 7. Puget Sound Power Light Company "Puget" or "Puget Power is willing to hire a Consultant and a Contractor as defined herein for the purpose of conducting the Treatability Study. 8. The Participating PRPs are willing to contribute to the costs of conducting the Treatability Study according to the terms and conditions set forth herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the foregoing recitals and the exchange of the covenants, the Participating PRPs agree as follows: SECTION 1. CONDITIONS PRECEDENT TO OPERATION 1.1 Effective Date. This Memorandum shall become effective upon execution by Puget Power, Snohomish County Public Utility District No. 1, and at least 5 additional PRPs listed in Exhibit B. 1.2 Evidence of Authority. A PRP shall be deemed to have executed this Memorandum for purposes of this section when a counterpart of this Memorandum, executed by such PRP and accompanied by evidence of authority of such PRP to enter into this Memorandum, is received at the following address: Gary R. Reid, OBC -11S Puget Power P.O. Box 97034 Bellevue, WA 98009 -9734 1.3 Notification of Effective Date. Puget shall promptly notify all Participating PRPs of the date on which the conditions precedent set out in this Section have been satisfied (the "Effective Date SECTION 2. SCOPE OF MEMORANDUM This Memorandum applies only to the conduct of the Trcatability Study and does not obligate Participating PRPs to participate in any remedial action or other Site related activity. SECTION 3. RELATIONSHIP OF PARTIES (a) The Participating PRPs agree that this Memorandum does not create any fiduciary or attorney- client relationship among any of the Participating PRPs. (b) Nothing herein shall be construed to authorize any Participating PRP to act as agent for any individual Pa= is i..:ipatin4 PRP or for the Participating PRPs as a group. (c) In performing any activity hereunder, Participating PRPs and all other persons shall be deemed to act as independent contractors. SECTION 4. PROJECT COORDINATOR Puget Power intends to employ a Project Coordinator to oversee the activities of the Consultant and the Contractor, to communicate with the Participating PRPs from time to time regarding progress of the Treatability Study, and to act as contact between the Participating PRPs and EPA. SECTION 5. RETENTION OF CONSULTANT Puget Power intends to retain the services of a consultant (the "Consultant to hire and—oversee the services of the Contractor. SECTION 6. RETENTION OF CONTRACTOR Puget Power intends to retain the services of a contractor (the "Contractor to perform some or all of the Treatability Study either directly or through subcontract with the Consultant. SECTION 7. TREATABILITY STUDY COSTS (a) The costs to be incurred pursuant to this Memorandum "Treatability Study Costs shall consist of (1) fees and expenses advanced, billed or accrued by any contractors, including the Consultant, Contractor, or other personnel, to conduct the Treatability Study as provided herein; (2) actual administrative expenses incurred by Puget Power in connection with the conduct of the Treatability Study, including but not limited to copying charges, long distance telephone calls, supplies, and contingencies as reasonable and necessary to accomplish the purposes of this Memorandum; and (3) any penalties (including stipulated penalties) imposed by EPA on the participating PRPs pursuant to the Consent Order. (b) Each Participating PRP will reimburse Puget Power for the Participating PRP's Share of Treatability Study Costs according to the allocation formula set foLtll in Exhibit A hereto and the payment schedule set forth in Exhibit B hereto. (c) Adoption of this formula is made only for the limited purpose of reimbursing Treatability Study Costs. This formula shall not govern allocation of financial responsibility for any other costs incurred or to be incurred in connection with the Site and shall not constitute an admission of any liability. (d) The Participating PRPs agree that all amounts contributed by a Participating PRP hereunder shall be credited against that Participating PRP's cost allocation for whatever response costs, if are addressed under any subsequent agreement or agreements. SECTION B. TEST REPORTS AND DATA Monthly progress reports submitted to EPA under the Consent Order will be distributed to all Participating PRPs. All other test reports and data supplied by the Consultant or Contractor shall be available for inspection by any Participating PRP. Copies of such reports and data will be supplied to any Participating PRP upon request. The costs of reproduction and distribution of such requested reports and data shall be borne by the Participating PRP requesting them. SECTION 9. LIABILITY This Agreement is intended to avoid litigation. The Participating PRPs do-not concede concerning the Site or materials alleged to have been shipped to or released from the Site. SECTION 10. CONTRIBUTION AND INDEMNITY This Memorandum is without prejudice to any claims for contribution or indemnity by any Participating PRP against any other PRP or any other person or entity. All such claims are expressly reserved. SECTION 11. ENFORCEABILITY BY THIRD PARTIES This Memorandum is expressly not intended for the benefit of any third party and is expressly not enforceable by any third party. SECTION 12. GENERAL PROVISIONS 12.1 Notices. All notices and other communications to Puget Power or other Participating PRPs shall be in writing. All notices and payments to Puget shall be mailed or delivered to the following address: Gary R. Reid, OBC -11S, Puget Power, P.O. Box 97034, Bellevue, wA 98009 -9734. All notices to be sent to other Participating PRPs shall be mailed or delivered to the address given by the Participating PRPs in executing this Memorandum. Notices shall be deemed given when deposited in the United States Mail. 12.2 Amendments. Amendments to this MemoLandum hail become effective upon approval in writing of all Participating PRPs. 12.3 Entire Agreement. This Memorandum, including all attached exhibits, contains the entire understanding of the Participating PRPs and supersedes all prior agreements and understandings among the Participating PRPs relating to the subject matter of this Memorandum. 12.4 Headinaa. The headings used in this Memorandum have been inserted for convenience only and shall not affect the construction of this memorandum. 12.5 Counterparts. This Memorandum may be executed in any number of counterparts, each of which may have the signature of only one Participating PRP, but each of which shall be deemed an original; and all of which, when taken together, shall be deemed to be a single agreement among all of the Participating PRPs. 12.6 Severabilitv. The invalidity or unenforceability of any provision of this Memorandum shall not affect the other provisions hereof and this Memorandum shall be construed in all respects as if such invalid and unenforceable provisions were omitted. 12.7 Applicable Law. All parties agree that this agreement and the contents thereof shall be interpreted and enforced pursuant to the laws of State of Washington pertaining to an agreement made and to be implemented in said state. A5138V EXECUTED this 6th day of February 1990. City of Port Angeles Participating PRP By: G. cam. Title (J Mayor U Address: 325 East 5th Street Port Anaeles. WA 98362 Alleaed PRP Puget Power Snohomish PUD EXHIBIT A ALLOCATION OF TREAT1.BILITY STUDY COSTS Any of the following alleged PRPs which executes this Memorandum: $2,500 A. B. Chance /Pauwels Chance AFB, McChord Alaska Electric Light Power Co. Allis Chalmers Anixter Pruzan Annapolis Water District Beaver Electrical Machinery Bellingham Public School District #501/ Roosevelt Junior High School Benton Co. PUD Benton Co. Rural Electic Association Blackfeet Indian Developers, Inc. Blaine, City of Boundary Electric Limited Centralia, City of Clallam County PUD #1 -10- Share 2/3 of Treatability Study Costs not paid by PRPs other than itself and Snohomish PUD 1/3 of Treatability Study Costs not paid by PRPs other than itself and Puget Power Clark County PUD Columbia Basin Electric Cooperative Inc. __Columbia Rural Electric Association Cooper Industries Cowlitz County PUD Dale's Electric, Inc. Darigold Delta, Corporation of Douglas Co. PUD #1 Elenbaas Feed Company, Inc. Elmhurst Mutual Power Light Co. Everett Housing Authority Fircrest, Town of Forest Grove, City of General Metals of Tacoma, Inc. General Pacific, Inc. Georgia- Pacific Corporation Goodwin Electric Co. Grant County PUD #2 Grays Harbor PUD #1 Harney Electric Cooperative, Inc. Harris Electric, Inc. Hawaiian Electric, Inc. (Nees Enterprises, Inc.) Homer E. Pauriea Co. Idaho Power Co. Kootenai Electric Coop. Lakeview Light Power Co. Lewis County PUD #1 Lynden Incorporated Mid State Elec. Coop., Inc. Milton, Town of N.W. Electric Navy, Dept. of Nooksack Valley High School Northern Wasco County PUD Oak Harbor School District Ohop Mutual Oly. Tech. Comm. Col. Orcas Power Light Pacific Power Light Co. Paradise Lakes Country Club Parkland Light Water Co. Peninsula Light Co. City of Port Angeles City Light Potelco, Inc. Richland, City of Rosen's Elec. Equip. Seattle City Light Service Electric Co., Inc. Stusser Electric Sumas, City of Tacoma, City of Tanner Electric Cooperative Texaco Refining Marketing, Inc. Tillumuck County PUD Trans Mountain Pipeline Corp. Turbodyne Corp. Utility Supply Co., Inc. Wahkiakum County PUD #1 Washington State Dept. of Transportation West Oregon Electric Cooperative, Inc. Westinghouse Canada Whatcom Electric Plumbing Noah Wallace and Merle Sidell, individually, and d /b /a as Northwest Transformer Company Whatcom Builders, Inc. Sue Ann Heutnink, as representative of the Estate of Claude L. Potts, deceased, (and Larry A. Potts and Garry A. Potts as co- trustees of the trust u/w of Theotista M. Potts, deceased) EXHIBIT B SCHEDULE OF PAYMENTS (1) All Participating PRPs other than Puget Power and Snohomish County PUD: payment in full within 30 days of notification by Puget pursuant to Section 1.3. (2) Snohomish County PUD: within 30 days of receipt of invoice from Puget Power following completion of the Treatability Study. (3) In the event the total of payments by Participating PRPs other than Puget Power and Snohomish County PUD exceeds total Treatability Study Costs, such excess shall be refunded to such PRPs pry rata within 60 days of completion of the Treatability Study. A5150v 1 2 3 4 5 6 7 IN THE MATTER OF: 8 Docket No. 1089- 12 -05- 104/122 NORTHWEST TRANSFORMER 9 (Mission /Pole) Facility, Whatcom County, Washington. ADMINISTRATIVE ORDER 10 ON CONSENT Proceeding Under Sections 122 11 and 104 of the Comprehensive Environmental Response, 12 Compensation, and Liability Act of 1980, as amended by the) 13 Superfund Amendments and Reauthorization Act of 1986, 11 42 U.S.C. 9622 and 9604. 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue Seattle, Washington 98101 JURISDICTION 28 ADMINISTRATIVE ORDER ON CONSENT Page 1 i0''v 5 ,23 5 1. This Administrative Order on Consent (Consent Order) is issued pursuant to the authority vested in the President of the United States by Sections 122 and 104 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9622 and 9604, which authority was delegated to the Administrator of the United States Environmental Protection Agency (EPA) on January 23, 1987, by Executive Order 12580, 52 Fed. Reg. 2923, and to the Regional Administrators by EPA Delegation Nos. 14 -8 -A and 14 -14 -C, and 1 further delegated to the Director of the Hazardous Waste 2 Division, EPA Region 10, on April 8, 1987. 3 27 2. This Consent Order is issued to the companies and 4 public entities (hereinafLer collectively referred to as 5 Respondents) listed in Attachment A, incorporated by reference as 6 if fully set forth herein. Respondents base their participation 7 on an independent allocation of costs, agreed to among 8 themselves, for actions to be performed pursuant to this Consent 9 Order. 10 3. By the signatures appearing below, Respondents 11 hereby consent and agree to (a) issuance of this Consent Order, 12 (b) undertake the required actions and comply with the provisions 13 hereunder, and (c) waive all rights to dispute the Federal 14 jurisdiction and author1Ly of EPA to issue or enforce this 15 Consent Order. 16 PARTIES BOUND 17 4. This Consent Order shall apply to and be binding 18 upon Respondents. 19 5. Each undersigned representative of Respondents 20' certifies that he or she is fully authorized to enter into the 21 terms and conditions of this Consent Order and to execute and 22 legally bind such party to this document. 23 6. Respondents shall provide or arrange to have 24 provided a copy of this Consent Order to all agents, employees, 25 servants, persons, firms, subsidiaries, divisions, contractors, 26 sub contractors, laboratories, and consultants used, employed, or 28 ADMINISTRATIVE ORDER ON CONSENT Page 2 27 1 retained to conduct any portion of the actions performed pursuant 2 to this Consent Order prior to performance of such actions, and 3 will require such persons and entities to conduct such actions in 4 confo 5 rmance with this Consent Order. 7. No change in ownership, corporate, or partnership 6 status shall in any way alter the responsibility of Respondents 7 to carry out the actions required by this Consent Order. 8 9 PURPOSES AND OBJECTIVES 10 8. In entering into this Consent Order, the mutual 11 purposes and objectives of EPA and Respondents are to perform a 12 treatability study in accordance with the Work Plan attached 13 hereto as Attachment B. 14 9. Respondents will perform the treatability study in 15 a manner consistent with the National Contingency Plan (NCP), 16 40 C.F.R. Part 300, 50 Fed. Reg. 47912 (November 20, 1985), 17 CERCLA, and the Record of Decision (ROD) issued by EPA for the 18 Northwest Transformer (NWT) site on September 15, 1989. 19 20 DENIAL OF RESPONDENTS 21 10. Respondents, individually and as a group, 22 specifically deny any liability or responsibility for the 23 existence of hazardous substances at the Northwest Transformer 24 (Mission /Pole) facility (hereinafter referred to as the NWT 25 site), and specifically deny the following Findina of Fact and 26 Conclusions and Determination. The actions undertaken by 28 ADMINISTRATIVE ORDER ON CONSENT Page 3 10 11 12 13 27 1 Respondents in accordance with this Consent Order do not 2 constitute an admission by Respondents of any violation of state 3 or federal law or an admission by Respondents of any violation of 4 state or federal law vi an admission of any liability by 5 Respondents to EPA, the State of Washington, or any person or 6 entity. Nor shall this Consent Order be used as evidence or as 7 collateral estoppel against Respondents in any action or 8 proceeding other than an action to enforce the terms of this 9 Consent Order. FINDINGS OF FACT 11. EPA makes the following findings of fact: (a) The NWT site is located approximately two 14 miles south of Everson in Whatcow Count., Washington. The NWT 15 site, located immediately southwest of the intersection of 16 Mission and Pole Roads, occupies approximately 1.6 acres in the 17 northeast quarter of the northeast quarter of Section 12, 18 Township 39 N, Range 3 E, Willamette Meridian. 19 (b) The NWT site is bordered by low density 20 residential areas to the north and east, and by agricultural 21 fields to the south. A small gravel pit is located approximately 22 500 feet to the west. Land use in the area is comprised mainly 23 of rural homesteads, dairies, and farms, with approximately 200 24 persons living within a one -mile radius of the NWT site. A 25 residential subdivision is presently being constructed near the 26 NWT site. 28 ADMINISTRATIVE ORDER ON CONSENT Page 4 1 (c) The NWT site was primarily used for the 2 storage and salvage of transformers prior to final disposition 3 (repair, rebuild, or sale as scrap) or transportation to another 4 facility for recycling. Activities at the NWT site included 5 storage of transformers; removal of dielectric fluids from the 6 transformers in the barn; burning of transformer cores and 7 associated parts in an air curtain open pit incinerator; and 8 scrap metal reclamation. During operations there was spillage 9 and leakage of transformer oil onto the ground. In addition, 10 transformer oil was placed directly into a seepage pit (sometimes 11 referred to as the septic tank), in the southeast portion of the 12 NWT site, where it may have seeped out into the surrounding soil. 13 (d) According to Federal regulations, 40 C.F.R. 14 761.3, established pursuant to the Toxic Substances Control 15 Act, 15 U.S.C. 2601 et seq., oil filled electrical equipment, 16 including transformers, whose polychlorinated biphenyl (PCB) 17 concentration is unknown, must be assumed to contain 50 to 500 18 parts per million PCB. 19 (e) Information available to EPA indicates that 20 Respondents may have provided transformers which were repaired, 21 rebuilt, dismantled, or salvaged at the NWT site. 22 (f) The NWT site has been inspected by Federal and 23 State agencies several times, and soil samples have been 24 collected on a number of occasions since 1977. The results from 25 the inspections and sampling have revealed the presence of PCBs 26 in soils at the NWT site. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 5 1 (g) In 1984, the NWT site was added to the 2 National Priorities List (NPL) pursuant to Section 105 of CERCLA 3 42 U.S.0 9605. 4 (h) In April and May or 1985, EPA implemented an 5 immediate removal action at the NWT site, which included: (1) 6 enclosure of the NWT site with a chain -link fence; (2) excavation 7 and disposal of PCB contaminated soil and solid materials; (3) 8 draining, rinsing, and cleaning of thirty -five transformers; (4) 9 removal of PCB contaminated liquids and transformer casings; (5) 10 decontamination of concrete and selected wood surfaces of the 11 barn; (6) installation of five groundwater monitoring wells and 12 sampling of the associated soil and groundwater; and (7) domestic 13 well sampling. 14 (i) In June of 19c ?PA undertook a Remedial 15 Investigation and Feasibility Study (RI /FS) of the NWT site. The 16 purpose of the RI /FS was to gather sufficient information to 17 characterize the degree of contamination remaining at the NWT 18 site, and to evaluate alternatives for appropriate abatement of 19 such contamination. 20 (j) On September 15, 1989, EPA issued a Record of 21 Decision "ROD for the NWT site. The ROD set forth the 22 selected EPA operable unit remedy of in situ vitrification for 23 PCB contaminated soils at the NWT site. A treatability study is 24 required prior to such remediation in order to establish 25 parameters for the ISV and obtain more information of anticipated 26 remedial costs. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 6 1 CONCLUSIONS AND DETERMINATIONS 2 12. EPA makes the following conclusions and 3 determinations: 4 (a) The NWT site is a "facility" as defined-in 5 Section 101(a) of CERCLA, 42 U.S.C. 9601(a). 6 (b) Respondents are each a "person" as defined in 7 Section 101(21) of CERCLA, 42 U.S.C. 9601(21), and within the 8 meaning of Sections 104 and 122 of CERCLA, 42 U.S.C. 9604 and 9 9622. 10 (c) PCBs are "hazardous substances" as defined ih 11 Section 101(14) of CERCLA, 42 U.S.C. 9601(14). 12 (d) The presence of PCBs at the NWT site 13 constitutes an actual or threatened "release" as defined in 14 Section 101(22) of CERCLA, 42 U.S.C. 9601(22). 15 (e) Respondents are each a "potentially 16 responsible party" within the meaning of Sections 104 and 122 of 17 CERCLA, 42 U.S.C. 9604 and 9622. 18 (f) On the basis of past inspections, 19 investigations and reports, and other available information, EPA 20 has determined that, pursuant to Section 104(a) of CERCLA, 21 42 U.S.C. 9604(a), there is a release or threat of release of 22 hazardous substances from the NWT site. 23 (g) The actions required by this Consent Order 24 are: (1) consistent with the NCP, (2) authorized by Section 25 104(b) of CERCLA, 42 U.S.C. 9604(b); and (3) necessary to 26 protect the public health or welfare or the environment. 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 7' 2 13. Respondents shall conduct a treatability study for 3 ISV at the NWT site in accordance with the Treatability Study Work Plan, and cchadule contained therein, which is Attachment B 5 to this Consent Order, and is incorporated by reference herein. 6 14. All actions performed pursuant to the Treatability 7 Study Work Plan shall be directed and supervised by a qualified 8 licensed engineer, professional scientist, or hydrogeologist with 9 experience in hazardous substances site investigations. Prior to 10 commencement of activities at the NWT site, Respondents shall 11 notify EPA in writing of the name, title, affiliations, and 12 background of the individual proposed as the director and 13 supervisor mentioned above, and the name, address, 14 qualifications, and affiliations of all contractors and sub 15 contractors expected to be used in performing such activities. 16 17 REPORTS AND DELIVERABLE 27 1 ACTIONS TO BE PERFORMED 18 15. Respondents shall provide reports, plans, and 19 other "deliverables" to EPA in accordance with the Treatability 20 Study Work Plan, and schedule contained therein. 21 22 FORCE MAJEURE 23 16. If any event occurs which may cause or has caused 24 a delay in, or deviation from, achievement of the requirements of 25 this Consent Order, Respondents shall promptly notify EPA's 26 28 ADMINISTRATIVE ORDER ON CONSENT Page 8 27 1 Project Coordinator orally, and shall, within five (5) working 2 days of such oral notification, notify EPA in writing of: 3 (a) the anticipated duration and cause of the 4 delay or deviationv 5 (b) the measures that have been or will be taken 6 to prevent or minimize the delay or deviation; and 7 8 measures. 9 (c) the timetable proposed for carrying out such 17. Respondents shall adopt all reasonable measures to 10 avoid or minimize deviation and delay. The burden shall be upon 11 Respondents to show that any delay or deviation was, or will be, 12 caused by circumstances beyond their reasonable control. 13 Increased costs to Respondents of performance of the terms of 14 this Consent Order or changed economic circumstances of 15 Respondents shall not be considered circumstances beyond the 16 reasonable control of Respondents. A deviation or delay caused by 17 failure of EPA to review a "deliverable plan, or report within 18 the time frames specified in the Treatability Study Work Plan 19 shall be considered circumstances beyond the reasonable control 20 of Respondents. 21 18. If EPA determines that the delay or deviation has 22 been or will be caused by circumstances beyond Respondents' 23 reasonable control, EPA will approve in writing the deviation or 24 delay and extend the time for performance of that element of work 25 for a reasonable period. Such an extension will not alter the 26 schedule for the performance or completion of other tasks unless 28 ADMINISTRATIVE ORDER ON CONSENT Page 9 1 they are dependant on those specifically altered. In the event 2 EPA and Respondents cannot agree that any deviation or delay has 3 or will be caused by circumstances beyond Respondents' reasonable 4 control, or if there is no agreement on the length of extension, 5 the dispute shall be resolved in accordance with the dispute 6 resolution provisions of this Consent Order. 7 8 EPA OBJECTIONS TO REPORTS. ACTIVITIES DEVIATION OR DELAY 9 19. EPA will notify Respondents in writing of any 10 report, activity, deviation, or delay to which EPA has an 11 objection or regards as deficient, will set forth in this writing 12 its reasons for any such objections, and will meet and consult 13 with Respondents in an effort to resolve any misunderstandings. 14 Not later than ten (10) calendar days afte. Lpceipt of a written 15 notice of EPA objections to all or part of any report, or within 16 such additional time period as may be approved by EPA, 17 Respondents shall either comply with the EPA notification or 18 invoke dispute resolution in accordance with the dispute 19 resolution provisions of this Consent Order. 20 21 DISPUTE RESOLUTION 22 20. Respondents and EPA shall use their best efforts 23 informally and in good faith to resolve all disputes or 24 differences of opinion. If, however, disputes arise concerning 25 this Consent Order, which Respondents and EPA are unable to 26 resolve informally, either EPA shall present a written notice of 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 10 1 such dispute to Respondents, or Respondents shall present a 2 written notice of such dispute to EPA. Within fourteen (14) 3 calendar days of receipt of such a written notice, the recipient 4 shall provide a written response. If Respondents do not so 5 respond to EPA within the fourteen (14) calendar day time period, 6 or if EPA does not concur with the position of Respondents, the 7 dispute shall be deemed resolved in favor of EPA, and Respondents 8 shall be provided with written notification of such dispute 9 resolution. If EPA concurs with the position of Respondents 10 presented in the written notice or response from Respondents, the 11 dispute shall be deemed resolved in favor of Respondents, and 12 Respondents shall be provided with written notification of such 13 dispute resolution. Upon the completion of dispute resolution in 14 accordance with this paragraph, this Consent Order will be 15 modified to include any necessary extensions of time or variances 16 of activities. 17 21. If Respondents fail or refuse to carry out any 18 actions required as a result of the written notification provided 19 by EPA in accordance with paragraph 20 above. EPA may elect to 20 carry out the action and /or initiate any other response measures 21 or enforcement action. In accordance with Sections 113(h) and 22 (j) of CERCLA, 42 U.S.C. 9613(h) and (j), there shall be no 23 judicial review of the actions required by EPA under the terms of 24 this Consent Order until such time as EPA brings an action to 25 enforce such requirements. However, with the exception of those 26 rights waived in paragraph 3 above, nothing herein shall 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 11 1 constitute a waiver of any defenses available to Respondents, and 2 Respondents specifically reserve the right to assert such 3 defenses, in an action by EPA to enforce this Consent Order. 4 22. With-respect to any plan, report, or activity to 5 which EPA has an objection or regards as deficient and to which 6 stipulated penalties apply, stipulated penalties shall begin to 7 accrue on the eleventh (11th) calendar day (or within such 8 additional time period as may be approved by EPA in writing) 9 after receipt by Respondents of notice in writing from EPA of 10 such objection or deficiency and shall continue to accrue until 11 Respondents meet such objection or correct such deficiency, 12 except as provided below. However, if EPA determines that the 13 report or activity was so insufficient so as to not constitute a 14 good faith report or activity, stipulated penalties sha11- begin 15 to accrue on the first (1st) calendar day following the deadline 16 for implementation or submission. With respect to any delay in 17 the implementation of any activity or the submission of any 18 report or plan to which stipulated penalties apply, stipulated 19 penalties shall begin to accrue on the first (1st) calendar day 20 following the deadline for submission of such plan or report, or 21 implementation of such activity, and shall continue until 22 Respondents submit such deliverable, except as provided below. 23 23. If Respondents invoke dispute resolution with 24 respect to the foregoing, stipulated penalties, if applicable, 25 shall continue to accrue while the parties pursue dispute 26 resolution, unless Respondents can demonstrate, to the reasonable 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 12 1 satisfaction of EPA, that these procedures were instituted in 2 good faith and not for purposes of delay. 3 4 DELIVERY OF DOCUMENTS 5 24. Documents, including reports, notices, 6 "deliverables," and other correspondence required to be submitted 7 to EPA, shall be delivered to the following: 8 9 10 11 12 Respondents should be sent to: Gary R. Reid 14 Senior Staff Engineer Puget Sound Power Light Company 15 411 108th Avenue N.E., 6th Floor Bellevue, Washington 98004 -5515 13 16 17 18 19 20 21 22 23 24 25 26 27 Christine Psyk Superfund Site Manager Superfund Branch, HW -113 U.S. EPA, Region 10 1200 Sixth Avenue Seattle, Washington 98101 25. Documents or notices to be submitted to 26. Within ten (10) working days of request by EPA, Respondents shall provide EPA with such of the following existing documents in the possession of Respondents or their contractors as are not legally privileged: final plans, final task memoranda, including memoranda recording field modifications and final recommendations for further action, quality assurance memoranda and audits, final reports, raw data, field notes, laboratory analytical reports and any other documents which relate in any way to the NWT site, including those pertaining to any studies relevant to, but not specifically required by, this Consent Order. 28 ADMINISTRATIVE ORDER ON CONSENT Page 13 1 ADDITIONAL RESPONSE TASKS 2 27. Respondent and EPA may agree that additional 3 response tasks are necessary for an adequate and thorough 4 treatability study. Such tasks may be iiuplemented by Respondents 5 by an amendment to this Consent Order. If Respondents and EPA do 6 not so agree, Respondents shall not be required under the terms 7 of this Consent Order to implement such tasks. 8 9 NOTICE TO EPA OF SAMPLING 10 28. Respondents shall notify EPA of any sampling 11 activity to be conducted specifically pursuant to the 12 Treatability Study Work Plan, and schedule contained therein, at 13 least seven (7) working days in advance of any such activity and 14 shall, upon verbal request, provide EPA or any representative, 15 with a split or duplicate of any sample. 16 17 PROJECT COORDINATOR 18 29. The EPA Project Coordinator is Christine Psyk. 19 Not later than five (5) working days after the effective date of 20 this Consent Order, Respondents shall designate a Project 21 Coordinator and a Substitute Project Coordinator. The Project 22 Coordinators shall be responsible for overseeing the 23 implementation of this Consent Order. To the extent possible, 24 all communications between Respondents and EPA (including 25 communication by letter, reports, notices, etc.) concerning 26 activities related to this Consent Order shall be directed 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 14 1 through the respective Project Coordinators. Upon five (5) 2 calendar days written notice to the other party, responsibilities 3 of a party's Project Coordinator may be delegated by that party 4 to other employee- or contractor employees. 5 30. EPA and Respondents may change their respective 6 Project Coordinators by notifying the persons named in paragraphs 7 24 and 25, infra., in writing no later than five (5) calendar 8 days before the date of such change. 9 10 OUALITY ASSURANCE 11 31. Throughout all sample collection, transportation, 12 and analysis activities, Respondents shall use procedures for 13 quality assurance, quality control, and chain of custody in 14 complete accordance with the Treatability Study Work Plan. In 15 addition, Respondents shall obtain access for EPA personnel and 16 authorized representatives to (a) each individual employed or 17 used by Respondents for collection or transportation or analyses 18 of samples, and (b) every laboratory record and item of equipment 19 used in connection with collection or the analysis of samples. 20 Respondents shall cause each laboratory used for analyses to 21 perform such analyses according to the methods specified in the 22 Treatability Study Work Plan. If determined to be necessary by 23 EPA, Respondents shall also require each such laboratory to 24 participate in an EPA quality assurance /performance and system 25 audit. 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 15 1 FACILITY ACCESS 2 32. Because the NWT site is presently owned by parties 3 other than those bound by this Consent Order, Respondents shall 4 have obtained or will use their best efforts to obtain access 5 agreements from the present owners within one week of the 6 effective date of this Consent Order. Such agreements shall 7 provide reasonable access to EPA and /or its authorized 8 representatives. In the event that access agreements are not 9 obtained within the time referenced above, Respondents shall 10 immediately notify EPA regarding both the lack of, and efforts to 11 obtain, such agreements. In the event Respondents are unable to 12 obtain access under reasonable terms and conditions, EPA agrees, 13 consistent with its authority, to assist Respondents in obtaining 1^ acceoc 15 16 RETENTION OF RECORDS 17 33. Respondents shall, for a minimum of six (6) years 18 after termination of this Consent Order, preserve all currently 19 known or later identified records and documents in possession or 20 control of their divisions, employees, agents, accountant, 21 contractors or attorneys, which relate in any way to the NWT 22 site, despite any document retention policy to the contrary. 23 Upon request by EPA, Respondents shall make available to EPA such 24 records (or true copies thereof) as are not legally privileged. 25 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 16 1 STIPULATED PENALTIES 2 34. Except with regard to any extensions agreed to by 3 Respondents and EPA or allowed by the terms of this Consent 4 Order, for-failing to-comply -=on= -time with the following 5 requirements of the Treatability Study Work Plan, and schedule 6 contained therein, and upon by EPA, Respondents 7 shall pay the following stipulated penalties into the "Hazardous 8 Substance Response Trust Fund" according to the procedures 9 described in paragraph 37 below: 10 Treatabilitv Study Work Plan Requirements 11 obtain soil samples 12 laboratory quality assurance (QA) Plan 13 draft Treatability Study report 14 final Treatability .Study report:-.. 15 Period of Failure to Comely Penalty Per Violation Per Day 16 17 18 1st through 7th calendar day 8th through 21st calendar day 22nd calendar day and beyond 500 $1,000 $1,500 19 35. The stipulated penalties set forth above do not 20 preclude EPA from pursuing any other remedies or sanctions 21 available to it as relief for failure by Respondents to comply 22 with any requirements of this Consent Order. 23 36. The stipulated penalty amounts shall apply to 24 Respondents as a group and not individually. However, failure of 25 any individual Respondent to provide its share of any stipulated 26 penalties, shall not relieve the remaining Respondents of their 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 17 1 obligation to pay the entire amount of accumulated stipulated 2 penalties. 3 37. Respondents shall pay the stipulated penalties set forth in paragraph 34 -abcvc within thirty (30) calendar days of 5 receipt of written notice from EPA. A copy of each transmittal 6 letter for payment of penalties shall be sent to the EPA Project 7 Coordinator. Checks shall specifically reference the NWT site, 8 note that payment is penalties, and be sent to the following 9 address: 10 Mellon Bank U.S. Environmental Protection Agency 11 Superfund Accounting P.O. Box 371003M 12 Pittsburgh, Pennsylvania 15251 Attention: Collection Officer for Superfund 13 14 38. For oily amounts overdue- under the .terms of this 15 Consent Order, Respondents shall be required to pay interest 16 accrued on such amounts, a charge for processing and handling a 17 delinquent payment, and a penalty for failure to pay such amounts 18 in accordance with 31 U.S.C. 3717 and 4 C.F.R. Parts 101 -104. 19 20 RESERVATION OF RIGHTS 21 39. Nothing herein is intended to resolve nor does it 22 resolve the alleged liability of Respondents under CERCLA for 23 response costs and injunctive relief. Respondents and EPA 24 reserve all rights and defenses that each may have. In 25 addition, EPA expressly reserves the right to recover from 26 Respondents all response costs incurred by EPA for any action 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 18 1 related to this Consent Order and /or the Treatability Study Work 2 Plan. 3 40. Respondents hereby covenant not to sue the United 4 States for any claim for reimbursement of costs incurred to 5 implement this Consent Order from the Hazardous Substance 6 Superfund established pursuant to Section 221 of CERCLA, 7 42 U.S.C. 6931, or for any claims arising out of the negligence 8 of Respondents. Nothing in this Consent Order shall be deemed to 9 constitute preauthorization of a claim within the meaning of 10 Section 111 of CERCLA, 42 U.S.C. 9611 or 40 C.F.R. 300.25(d). 11 12 OTHER CLAIMS /APPLICABLE LAWS /EXONERATION /INDEMNIFICATION 13 41. Nothing in this Consent Order shall constitute or 14 be construed as a release from any claim, cause of action or 15 demand in law or equity against any person, firm, partnership, 16 corporation, or state or local governmental entity for any 17 liability it may have arising out of or relating in any way to 18 the generation, storage, treatment, handling, transportation, 19 release, or disposal of any hazardous substances, hazardous 20 wastes, pollutants, or contaminants found at, taken to, or taken 21 from the NWT site. In addition, all actions required to be taken 22 pursuant to this Consent Order shall be performed in accordance 23 with the requirements of all applicable local, state, and federal 24 laws and regulations. 25 42. Respondents shall save and hold harmless the 26 United States, its agencies, officers, employees, and agents 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 19 1 (thereby exonerating the foregoing) from, and shall indemnify 2 each of the foregoing against and for, any and all claims arising 3 from or on account of acts or omissions of Respondents, or the 4 officers, employees, receivers, trustees, agents, or assigns of 5 Respondents, relating in any way to carrying out activities 6 pursuant to this Consent Order. EPA is not party to any contract 7 involving the NWT site which is made by Respondents. 8 43. Respondents shall not, however, be required to 9 indemnify or save and hold harmless the United States (or its 10 agencies, officers, agents, or employees) from any claims or 11 causes of action arising from or on account of acts or omissions 12 of the United States (or its agencies, officers, agents, or 13 employees) in carrying out activities pursuant to this Consent 14 Order. 15 16 EFFECTIVE DATE 17 44. This Consent Order becomes effective on the date 18 it is signed by the EPA Hazardous Waste Division Director, Region 19 10. 20 21 SUBSEOUENT MODIFICATIONS 22 45. This Consent Order may be amended by agreement of 23 EPA and Respondents. Amendments shall be in writing and shall 24 become effective on the date such amendments are signed by the 25 EPA Hazardous Waste Division Director, Region 10. 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 20 1 COMPUTATION OF TIME 2 46. Any time period scheduled to begin on the 3 occurrence of an act or event shall begin on the day after the 4._ act or_event. If the final day of and time period falls on-a 5 weekend or Federal legal holiday, the time period shall be 6 extended to the next working day. 7 8 SATISFACTION AND TERMINATION 9 47. The duties of Respondents under this Consent Order 10 shall be satisfied upon issuance by EPA of a written notice 11 stating that Respondents have complied with all provisions of 12 this Consent Order, including such additional activities as may 13 be agreed to by Respondents and EPA. 14 15 ATTACHMENTS 16 48. All attachments to this Consent Order are fully 17 incorporated as though set forth herein. 18 19 IT IS SO AGREED by the parties listed on Attachment A as per the 20 attached signature pages. 21 22 IT IS SO ORDERED: 23 24 DATE OF ISSUANCE 25 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 21 DIRECTOR, EPA HAZARDOUS WASTE DIVISION Region 10 1 2 3 NORTHWEST TRANSFORMER (MISSION /POLE) FACILITY ADMINISTRATIVE ORDER ON CONSENT SIGNATURE PAGE 4 The Ci tV of Port Anaei consents to this Administrative Order on Consent (in EPA Docket No. 1089- 12 -05- 104/122), 5 including all Attachments on February 6th 19 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADMINISTRATIVE ORDER ON CONSENT Page 22 Company /Entity: City of Port Angeles Name: Joan K. Sargent Title: Mayor Signatures,... u