United States of America v. Georgia Pacific LLC

Filing 12

CONSENT DECREE; signed by Chief Judge Paul L. Maloney (Attachments: # 1 Appendix A through F)(Chief Judge Paul L. Maloney, acr)

APPENDIX C STATEMENT OF WORK FOR THE REMEDIAL DESIGN AND REMEDIAL ACTION AT THE WILLOW BOULEVARD/A-SITE LANDFILL, OPERABLE UNIT 2 OF THE ALLIED PAPER, INC./PORTAGE CREEK/KALAMAZOO RIVER SUPERFUND SITE KALAMAZOO TOWNSHIP, MICHIGAN

I. PURPOSE The purpose of this Statement of Work (SOW) is to set forth requirements for implementation of the Remedial Action set forth in the Record of Decision (ROD) for the Willow Boulevard/A-Site Landfill, Operable Unit 2 (OU2), of the Allied Paper, Inc./Portage Creek/Kalamazoo River Superfund Site (Site) which was signed by the Director of the United States Environmental Protection Agency (U.S. EPA) Region 5 Superfund Division on September 27, 2006. Settling Defendant shall follow the ROD; the Consent Decree; this SOW 1; the approved Remedial Design Work Plan, the approved Remedial Action Work Plan; U.S. EPA Superfund Remedial Design and Remedial Action Guidance; and any additional guidance provided by U.S. EPA in submitting deliverables for designing and implementing the remedial actions for OU2. II. DESCRIPTION OF THE REMEDIAL ACTION/PERFORMANCE STANDARDS Settling Defendant shall design and implement the Remedial Action (RA) to meet the performance standards and specifications set forth in the ROD and this SOW. Performance standards shall include cleanup standards, standards of control, quality criteria and other substantive requirements, criteria or limitations including all Applicable or Relevant and Appropriate Requirements (ARARs) set forth in the ROD, SOW and/or Consent Decree. Settling Defendant will evaluate the presence of the sheet pile wall at A-Site and its impact on the execution of the remedial action. The areas that comprise OU2 that shall be addressed by this SOW are listed below: · The Willow Boulevard Landfill and the A-Site Landfill, which primarily contain PCB-contaminated paper residuals (residuals), and from which PCBcontaminated material has migrated into the surrounding areas; The Willow Boulevard Drainageway;

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Terms defined in the Consent Decree, generally, are not redefined herein.

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· · · 1.

The Area South of the A-Site Berm, including former Olmstead Creek; The Area East of Davis Creek; and The area near monitoring well AMW-3A

Excavation

Settling Defendant shall determine the horizontal and vertical extent of the PCB contamination based on field reconnaissance and/or sample analyses prior to any excavation or dredging in the previously mentioned areas. The determination of the horizontal and vertical extent of the PCB contamination shall be subject to U.S. EPA review and approval. If U.S. EPA gives written approval, Settling Defendant may rely on existing site data in determining the extent of contamination. Settling Defendant shall excavate the Willow Boulevard drainageway; the area south of the A-Site berm, including former Olmstead Creek; the area east of Davis Creek; and the area near monitoring well AMW-3A until confirmation sampling demonstrates compliance with the applicable cleanup criteria specified in Table 5, Section 7.2 of the ROD. When determining whether the applicable cleanup criteria have been achieved, U.S. EPA may consider, but need not be limited to, the area-averaged PCB concentration. Settling Defendant shall excavate the Willow Boulevard Drainageway, the Area South of the ASite Berm, the Area East of Davis Creek, and the former Olmstead Creek Area to the remedial action goal of 0.33 ppm PCB. The areas to be so excavated are delineated on Figure 2 of the ROD. The Settling Defendant shall excavate these four areas to the 0.33 ppm PCB cleanup goal; however, by doing so, Settling Defendant does not concede that such a conservative excavation approach is necessary to protect human health or the environment in these four areas of OU2, or other areas of the Allied Paper/Portage Creek/Kalamazoo River Superfund Site. U.S. EPA recognizes that it may be difficult to determine with certainty the remedial actions that may be necessary to achieve the 0.33 ppm remediation goal until additional sampling is conducted pursuant to this SOW to determine the extent of PCB contamination in these areas. Settling Defendant and U.S. EPA agree that Settling Defendant shall excavate these areas in accordance with the Remedial Action Work Plan (RA Work Plan), which will be developed by Settling Defendant and approved by U.S. EPA. The RA Work Plan or, as appropriate, the Field Sampling Plan, will include a sampling protocol to determine post-excavation PCB concentrations. If, subsequent to the excavation and confirmation sampling required by the initially-approved RA Workplan and/or Field Sampling Plan, U.S. EPA determines that the 0.33 ppm PCB remediation goal has not been achieved, U.S. EPA will consult with Michigan Department of Environmental Quality (MDEQ) and Settling Defendant regarding (1) whether additional remedial actions will be effective in achieving the 0.33 ppm remediation goal in the area; and (2) the potential nature of such additional remedial actions. Additional remedial actions to be 2

considered include, but are not limited to: (1) additional excavation; (2) backfilling with clean material; (3) capping; and (4) monitored natural attenuation. In determining whether and how to proceed with additional remedial activities, U.S. EPA will consider the extent and concentration of the remaining PCBs in the area(s).

1.1.

Setback from the Kalamazoo River at the Willow Boulevard Landfill The excavation along the northern banks of the Willow Boulevard Landfill (along the Kalamazoo River) shall be of sufficient distance to create an adequate buffer zone, which will ensure that, for the lifetime of the remedy, there is no direct contact between the contaminated residuals within the landfill and the Kalamazoo River. This buffer will also be adequate to prevent PCBs from migrating (by surface water runoff or erosion) from the landfill into the Kalamazoo River. The excavated areas shall be backfilled with clean soil with sufficient organic content to support restoration planting materials and to create an ecologically friendly bank. Additionally, this buffer zone or setback shall be of sufficient size to allow for the installation of and access to groundwater monitoring wells. The extent of the excavation shall be identified primarily by visual criteria and the excavated material shall be relocated further into the landfill.

2.

Cap

Settling Defendant shall install a cap over both the Willow Boulevard and A-Site Landfills in compliance with the relevant requirements of Part 115, Solid Waste Management, of the Michigan Natural Resources and Environmental Protection Act (NREPA), (Part 115) concerning cap specifications for closure of a solid waste disposal facility. Unless Settling Defendant requests a variance pursuant to Part 115, Settling Defendant shall design a cap as a part of the Remedial Design (RD) consistent with Part 115,. Settling Defendant shall also design the cap to meet the remedial action objectives set forth in the ROD as follows: · The cap shall physically isolate and contain the contaminated material and reduce the potential for PCBs to migrate (by surface water runoff or erosion) from the landfill into the Kalamazoo River. The construction of the cap over the landfills shall minimize infiltration of precipitation through the landfills and migration of PCBs from the landfills into the groundwater. The cap shall also prevent human or ecological exposures to residuals within the landfills. Erosion Protection and Containment System 3

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· 3.

Settling Defendant shall protect the landfill against erosion in compliance with NREPA. This protection shall include implementation of bank stabilization and erosion control measures to protect the cap and contents of the landfill from a 100-year flood and reduce the migration of PCBs into the Kalamazoo River and adjacent areas. In places at the A-Site Landfill where there is no sheet pile, the existing dike soils shall be regraded to achieve a bank with a gentler, stable slope, and a zone of rip-rap shall be placed at the toe of the bank to prevent erosion. In places at the Willow Boulevard Landfill where no adequate dikes exist, an earthen berm and/or swale or ditch shall be constructed to direct storm water runoff from the landfill away from adjacent residences. Areas of the berm that are subject to erosion shall be protected using techniques including, but not limited to, articulated concrete systems, geoweb materials, or revetment blankets. Placement of erosion and flood protection on the side walls of the landfill shall be consistent with the relevant requirements of state and federal laws, including Part 115, Solid Waste Management; Part 301, Inland Lakes and Streams; Part 91, Soil Erosion and Sedimentation Control; and Part 303, Wetland Protection, of the NREPA, as well as the federal Clean Water Act and the Rivers & Harbors Act. 4. Mitigation

Settling Defendant shall mitigate for environmental impacts associated with the implementation of the remedial actions set forth in the ROD, the CD, and this SOW pursuant to 40 CFR 300.430(e)(9)(iii)(E)(3) and for impacts to the wetland habitat in areas associated with remedial actions in the Area East of Davis Creek, in the Willow Drainageway, and in the Area South of the A-Site Berm. Prior to initiating any mitigation actions, Settling Defendant shall submit, as part of the RA Work Plan, a Mitigation Work Plan for review and approval of U.S. EPA. U.S. EPA will provide notice of submission of the Mitigation Work Plan and an opportunity to consult to the Natural Resource Trustees. Upon completion of excavation under Section II.1, Settling Defendant shall re-establish vegetation and surface elevations unless otherwise directed by U.S. EPA. Soil erosion shall be controlled compliant with state law during remedy implementation. Wetland mitigation shall also be performed pursuant to the NREPA, Part 303, Wetlands Protection, in areas associated with remedial actions in the Area East of Davis Creek, in the Willow Drainageway, and in the Area South of the A-Site Berm. Settling Defendant shall mitigate environmental impacts to the bank of the River associated with implementation of the Remedial Action by regrading and stabilizing the bank, and restoring the bank with native vegetation and other erosion control measures (up to the 100-year storm event elevation).

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5.

Short-Term and Long-Term Monitoring 5.1 5.1.1 Short-term Monitoring Surface Water

Settling Defendant shall include in the RD a short-term surface water monitoring program that must be used during all construction and excavation activities that may have an impact on surface water. Surface water monitoring shall be conducted in order to insure that public health, safety, welfare, and the environment are being protected in accordance with state and federal law during implementation of excavation activities, including Part 31, Water Resources Protection, of the NREPA and the Clean Water Act's Ambient Water Quality Criteria. 5.1.2 Air

During construction activities, Settling Defendant shall perform air monitoring. Air monitoring will ensure that the RA activities do not violate rules prohibiting the emission of air contaminants in quantities which have injurious effects on human health, animal life, plant life of significant economic value, and/or property as established in Part 55, Air Pollution Control, of the NREPA and the federal Clean Air Act. 5.2 Long-term Monitoring

Settling Defendant shall perform long-term groundwater monitoring following construction of the remedy. Appropriate long-term groundwater monitoring may require the installation of additional monitoring wells or abandonment of existing wells that are no longer necessary. The number and location of groundwater monitoring wells shall be specified by Settling Defendant in the RD and is subject to U.S. EPA approval, in consultation with the State of Michigan through MDEQ. Monitoring of the groundwater aquifer shall be conducted in accordance with Part 201, Environmental Remediation, of the NREPA. Settling Defendant shall continue to perform groundwater monitoring until the U.S. EPA, in consultation with MEDQ, determines that such monitoring is no longer necessary. The continued need for groundwater monitoring will be evaluated at the five-year review required under the National Contingency Plan, 40 C.F.R. Part 300 (as amended) (NCP), and at each review thereafter. 5

6. Fencing and Permanent Marker(s) Settling Defendant shall install fencing around the Willow Boulevard and A-Site landfill portions of OU2 as necessary to restrict unauthorized access to the landfills. The fence alignment will take into account the 100-year flood elevations. Settling Defendant shall also place permanent marker(s) around the boundary of the landfill describing the restricted area of OU2 and the nature of any restrictions. Warning signs shall also be posted on the fence every 200 feet and on all entry gates. The number, content, and location of the permanent markers and warning signs shall be approved by the U.S. EPA. 7. Deed Restrictions Settling Defendant shall execute and record with the Kalamazoo County Clerk/Register Office deed restrictions and restrictive covenants on OU2 property in accordance with Section VII of the Consent Decree. 8. Long-term Maintenance Settling Defendant shall perform the long-term maintenance and post-closure care as required by Part 201, Environmental Remediation, of the NREPA, which shall be provided as part of the RA. A detailed Operation and Maintenance Plan (O&M Plan) shall be submitted as part of the RD. The O&M Plan, subject to U.S. EPA approval, shall also include provisions for monitoring and maintenance of the mitigation actions pursuant to Section II.4. Upon U.S. EPA approval of the O&M Plan, long-term O&M shall be carried out pursuant to the O&M Plan. Prior to approval of the O&M Plan, U.S. EPA will provide notice and an opportunity to consult to the Trustees. 9. Other Provisions Measures shall be taken during remedy construction activities to minimize the noise and dust impacts of construction upon the surrounding community. Fugitive dust emissions shall be monitored and controlled in a manner to ensure compliance with the standards contained in Part 55, Air Pollution Control, of the NREPA and the federal Clean Air Act. III. SCOPE OF REMEDIAL DESIGN, REMEDIAL ACTION The Remedial Design/Remedial Action (RD/RA) shall consist of six tasks. All RD/RA plans are subject to U.S. EPA approval. Task 1: Remedial Design Work Plan Settling Defendant shall submit a Remedial Design Work Plan (RD Work Plan) in accordance with Section V, Paragraph 11, of the Consent Decree and Section V of this SOW. The RD Work 6

Plan shall document the overall management strategy for performing the design, construction, operation, maintenance and monitoring of the respective RA for U.S. EPA review (with reasonable notice and opportunity for comment by the State and the Natural Resource Trustees) and approval. The plan shall document the responsibility and authority of all organizations and key personnel involved with the implementation and shall include a description of qualifications of key personnel directing the RD, including contractor personnel. The Work Plan shall also contain a schedule of RD activities. The RD Work Plan shall include plans and schedules as required by Section V, Paragraph 11, of the Consent Decree. The RD Work Plan shall include a project schedule for each major activity and submission of deliverables generated during the RD. The RD Work Plan shall include, consistent with the Consent Decree, a pre-design Quality Assurance Project Plan (QAPP), a Health and Safety Plan, and a Field Sampling Plan. The existing U.S. EPA-approved Multi-Area QAPP, Multi-Area Health and Safety Plan, and Multi-Area Field Sampling Plan may be used in lieu of new documents, unless otherwise directed by U.S. EPA. Supplements to or updates of those documents may be prepared to address information requirements specific to OU-2. Any such updates or supplements shall be identified and provided according to a schedule established in the RD Work Plan. The Field Sampling Plan shall include sections detailing any geotechnical sampling and investigations necessary to support development of the Mitigation components of the RD Work Plan. Settling Defendant shall implement the pre-design work in accordance with the final RD Work Plan. The results of any pre-design studies shall be included with the Preliminary Design. Task 2: Remedial Design Phases Settling Defendant shall prepare construction plans and specifications to implement the RA at OU2 as described in the ROD and this SOW. Plans and specifications shall be submitted in accordance with the schedule set forth in Section V below. Subject to approval by U.S. EPA, Settling Defendant may submit more than one set of design submittals reflecting different components of the RA. All plans and specifications shall be developed in accordance with U.S. EPA's Superfund Remedial Design and Remedial Action Guidance (OSWER Directive No. 9355.0-4A) and shall demonstrate that the RA will meet all objectives of the ROD, the Consent Decree and this SOW, including all Performance Standards. EPA's Project Coordinator and Settling Defendant's Project Coordinator will meet in person or via conference call, at a minimum, on a monthly basis, unless EPA's Project Coordinator agrees to meet on a greater or less frequent basis. EPA will provide notice of and an opportunity to attend meetings or calls that include a discussion of Mitigation activities to the Natural Resource Trustees.

A.

Preliminary Design

Settling Defendant shall concurrently submit the Preliminary Remedial Design when the design effort is approximately 50% complete. If required by the approved RD Work Plan 7

the respective Preliminary Design submittal shall include or discuss, at a minimum, the following: design criteria, including a U.S. EPA-approved scientifically valid indicator of wetland characterization for use in determining sediment cleanup levels; results of treatability studies, if required; results of additional field sampling and pre-design work; project delivery strategy; preliminary plans, drawings and sketches, including the 50 % Draft Engineering Design Report; required specifications in outline form; preliminary construction schedule; proposed cleanup verification methods, including compliance with Applicable or Relevant and Appropriate Requirements (ARARs); proposed siting/locations or processes/construction activities, including the 50 % Draft Performance Standards Verification Plan (PSVP); real estate, easement, restrictive covenant, and permit requirements; Draft QAPP/Draft Health and Safety Plan/Draft Field Sampling Plan/Draft Contingency Plan; plans and designs for implementation of the mitigation actions; a description of implementation methods and techniques; a description of the equipment to be employed, including capacity, size, and materials or construction; seeding and planting plans, including species lists, proposed source of materials, planting density and configurations, timing, and performance measures through the initial establishment of vegetation (3 years); cut and fill volume determinations and suitability analysis of fill material; erosion and sediment control plans--proposed engineering controls; analysis statement (or defense) regarding the long-term maintainability of the mitigation site(s). This statement will be supported by the appropriate models.

B.

Pre-Final Design

Settling Defendant shall submit the Pre-Final Remedial Design when the design effort is 95% complete. The Pre-Final Design shall fully address all U.S. EPA comments made to the preceding design submittal. C. Final Design

Settling Defendant shall submit the Final Remedial Design when the design effort is 100% complete. The Final Design shall respectively fully address all of U.S. EPA Remedial comments made to the Pre-Final Design and shall include reproducible 8

drawings and specifications suitable for bid advertisement. The Pre-Final Remedial Design shall serve as the respective Final Design if U.S. EPA has no further comments and issues the respective notice to proceed on the basis of the respective Pre-Final Design. Unless otherwise directed by U.S. EPA in the approved RD Work Plan, the respective Pre-Final and Final Design submittals shall include, at a minimum, those elements listed for the Preliminary Design, as well as the following: final plans and specifications; Draft OU2 O&M Plan; Construction Quality Assurance Project Plan (CQAPP). The CQAPP, which shall detail the approach to quality assurance during construction activities at OU2, shall also specify a quality assurance official (QA Official) to conduct a quality assurance program during the construction phase of the project; Contingency Plan; and PSVP. The PSVP shall explain in detail, which mechanisms will ensure that the RA achieves the overall Remedial Action Objectives (RAOs) developed and defined in the ROD, including those RAOs that are not based upon concentration levels of hazardous substances. The PSVP shall also include provisions for confirmation sampling, as needed.

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Task 3: Remedial Action Work Plan Settling Defendant shall submit a Remedial Action Work Plan (RA Work Plan) that includes detailed descriptions of the remediation and construction activities. The RA Work Plan shall be based on the respective approved Final Design, and shall include air and surface water monitoring provisions as determined necessary by U.S. EPA for the RA Work Plan. a. The RA Work Plan shall list the major deliverables and include a project schedule for each major activity and submission of deliverables generated during the RA. Settling Defendant shall submit a RA Work Plan in accordance with Section V, paragraph 12 of the Consent Decree and Section V of this SOW. The Remedial Action Work Plan shall include, but not be limited to, the following: (1) a schedule for completion of the Remedial Action; (2) a method for selection of the contractor; (3) a schedule for developing and submitting other required Remedial Action plans; (4) groundwater monitoring plan; (5) methods for satisfying permitting requirements; (6) methodology for implementation of the Operation and Maintenance Plan; (7) methodology for implementation of the Contingency Plan; (8) a tentative formulation of the Remedial Action team; (9) a construction quality control plan (by constructor); and (10) procedures and plans for the decontamination of equipment and the disposal of contaminated materials. The Remedial Action Work Plan also shall include the methodology for implementation of the Construction Quality Assurance Plan and a schedule for implementation of all Remedial Action tasks identified in the final design submittal and shall identify the initial 9

formulation of Settling Defendant's Remedial Action Project Team (including, but not limited to, the Supervising Contractor).

Task 4: Remedial Action Settling Defendant shall implement the RA as detailed in the approved Final Design and Work Plan. The following activities shall be completed in constructing the RA. A. Preconstruction inspection and meeting:

Unless not required by U.S. EPA, Settling Defendant shall participate with the U.S. EPA in a preconstruction inspection and meeting to: a. b. c. d. Review methods for documenting and reporting inspection data; Review methods for distributing and storing documents and reports; Review work area security and safety protocol; Discuss any appropriate modifications of the construction quality assurance plan to ensure that site-specific considerations are addressed; and Conduct walk-around of OU2 to verify that the design criteria, plans, and specifications are understood and to review material and equipment storage locations.

e.

The preconstruction inspection and meeting shall be documented by a designated person and minutes shall be transmitted to all parties. Prior to the final scheduling of preconstruction inspections and meetings, EPA shall give notice and an opportunity to attend to MDEQ and the Natural Resource Trustees. B. Completion of the RA:

In accordance with Paragraph 52 of the Consent Decree, within 90 days after Settling Defendant concludes that all phases of the Remedial Action (excluding OU2 O&M), have been fully performed and the OU2 Performance Standards (as defined in the approved RA and Performance Standard Verification Plan) have been attained, Settling Defendant shall schedule and conduct a pre-certification inspection of the OU2 Remedial Action to be attended by Settling Defendant, U.S. EPA. Prior to the pre-certification inspection, U.S. EPA will provide notice and an opportunity to attend to MDEQ and the 10

Trustees. If, after the pre-certification inspection, Settling Defendant still believes that the OU2 Remedial Action has been fully performed and the applicable OU2 Performance Standards have been attained, Settling Defendant shall submit a written report within 30 days of the inspection requesting certification to U.S. EPA for approval, with a copy to MDEQ and the Natural Resource Trustees, pursuant to Section XIII of the Consent Decree. In the report a professional engineer and Settling Defendant's Project Coordinator shall state the construction of the OU2 RA has been completed in full satisfaction of the requirements of the Consent Decree. The written report shall include a certification statement and signatures identified in Paragraph 52.a of the Consent Decree and described in Task 4.D.2, below. Subsequent requests for certifications, inspections, and reports shall also be in accordance with the terms of Paragraph 52 of the Consent Decree. C. Completion of OU2 Work

In accordance with Paragraph 53 of the Consent Decree, within 90 days after Settling Defendant concludes that all phases of the OU2 Work, as defined in the Consent Decree, (including O&M), have been fully performed, Settling Defendant shall schedule and conduct pre-certification inspection of OU2 Work pursuant to Section XIII, Paragraph 53.a, of the Consent Decree, to be attended by Settling Defendant and U.S. EPA. Prior to the precertification inspection, U.S. EPA will provide notice and an opportunity to attend to MDEQ and the Natural Resource Trustees. If, after the pre-certification inspection, Settling Defendant still believes that the OU2 Work has been fully performed, Settling Defendant shall submit a written report (Completion of Work Report) by a registered professional engineer stating that the OU2 Work has been completed in full satisfaction of the requirements of the Consent Decree and this SOW. The written report shall contain the certification statement and signatures identified in Paragraph 53.a of the Consent Decree and described in Task 4.D.3. If, after review of the written report, U.S. EPA determines any portion of the OU2 Work has not been completed in accordance with the Consent Decree or this SOW, U.S. EPA will notify Settling Defendant in writing of the activities that must be undertaken by Settling Defendant pursuant to the Consent Decree to complete the OU2 Work. U.S. EPA will include in its notification a schedule for Settling Defendant's performance of the activities, consistent with the Consent Decree and this SOW, or require Settling Defendant to submit a schedule to U.S. EPA for approval pursuant to Section X of the Consent Decree. If, based on the initial or any subsequent request for Certification of Completion of OU2 Work by Settling Defendant, the U.S. EPA concludes, after a reasonable notice and opportunity for review and comment by MDEQ and the Natural Resource Trustees, that the OU2 Work has been performed in accordance with the Consent Decree and this SOW, U.S. EPA will notify Settling Defendant in writing.

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D.

Reports 1. Progress Reports

Unless otherwise required by U.S. EPA, Settling Defendant shall submit to U.S. EPA, MDEQ, and the Natural Resource Trustees, in accordance with Paragraph IX of the Consent Decree, monthly progress reports during construction, and quarterly reports during other activities, delineating the status of OU2 activities. 2. Certification of Completion of the RA Report The Certification of Completion of the RA Report, as provided for in Paragraph 52 of the Consent Decree, shall include the following items, as determined by U.S. EPA to be necessary: Brief description of how outstanding items noted in the Pre-final Inspection were resolved; Explanation of modifications made during the RA to the approved RD and RA Work Plans and why these changes were made; As-built drawings; and Synopsis of the work defined in the SOW and a demonstration in accordance with the Performance Standards Verification Plan that Performance Standards have been achieved; Certification that the RA has been completed in full satisfaction of the requirements of the Consent Decree and this SOW; and if O&M has commenced, description of how Settling Defendant will implement any remaining part of the U.S. EPA approved O&M Plan. a summary of the respective mitigation objectives and the actions implemented to meet those objectives; a certification that all work plans, specifications, and schedules have been implemented and completed in accordance with the respective plans approved by EPA; as-built plan drawings, including vegetation established and erosion controls remaining in place; a discussion of difficulties encountered during project implementation that may alter or reduce the effectiveness of the respective mitigation and any implemented or planned corrective actions; and a discussion of any necessary modifications to the operation and maintenance procedures as approved. 12

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The written report shall identify any performance standards that have not been met as of the date of the report, and shall include as-built drawings signed and stamped by a professional engineer. The report shall contain the following statement, signed by a responsible corporate official of Settling Defendant or Settling Defendant's Project Coordinator: "To the best of my knowledge, after thorough investigation, I certify that the information contained in or accompanying this submission is true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations." 3. Completion of OU2 Work Report In the Certification of Completion of OU2 Work Report, as provided for in Paragraph 53 of the Consent Decree, a registered professional engineer and Defendant's Project Coordinator shall state that the OU2 Work, as defined in the Consent Decree, has been completed in full satisfaction of the requirements of the Consent Decree. The written report shall contain the following statement, signed by a responsible corporate official of Settling Defendant or Settling Defendant's Project Coordinator:

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"To the best of my knowledge, after thorough investigation, I certify that the information contained in or accompanying this submission is true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations." Task 5: Operation and Maintenance Settling Defendant shall prepare an O&M Plan to cover both implementation and longterm maintenance of the Remedial Action. The O&M Plan shall include a Section covering Mitigation action monitoring. The purpose of post-construction mitigation monitoring is to determine the status and effectiveness of the implemented mitigation. Initial Draft O&M Plans shall be submitted as final Design Document submissions. The Final O&M Plan shall be submitted to U.S. EPA, with copies to MDEQ and the Natural Resource Trustees, in accordance with the construction schedule contained in the approved RA Work Plan. The O&M Plan shall comprise the following elements as may be applicable to OU2: 1. Description of normal maintenance: a. b. c. d. 2. Description of tasks for operation; Description of tasks for maintenance; Description of prescribed treatment or operation conditions; and Schedule showing frequency of each O&M task.

Description of potential operating problems: a. b. c. Description and analysis of potential operation problems; Sources of information regarding problems; and Common and/or anticipated remedies.

3.

Description of routine monitoring and laboratory testing: a. b. c. d. Description of monitoring program design and monitoring tasks; Description of required data collection, metrics, techniques and methods, laboratory tests and their interpretation; Required quality assurance, and quality control; Schedule of monitoring frequency and procedures for a petition to U.S. EPA to reduce the frequency of maintenance or to discontinue it; and Description of verification sampling procedures if cleanup or performance standards are exceeded in routine monitoring.

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4.

Description of alternate O&M: a. Should systems fail, alternate procedures to prevent release or threatened releases of hazardous substances, pollutants or contaminants which may endanger public health and the environment or exceed performance standards; and Analysis of vulnerability and additional resource requirement should a failure occur.

b.

5.

Corrective Action: a. b. Description of corrective action to be implemented in the event that cleanup or performance standards are not attained; and Schedule for implementing these corrective actions.

6.

Safety plan: a. b. Description of precautions, of necessary equipment, etc., for OU2 personnel; and Safety tasks required in event of systems failure.

7.

Description of equipment: a. b. c. d. Equipment identification; Installation of monitoring components; Maintenance of OU2 equipment; and Replacement schedule for equipment and installed components.

8.

Records and reporting mechanisms required: a. b. c. d. e. f. Daily operating logs; Laboratory records; Records for operating costs; Mechanism for reporting emergencies; Personnel and maintenance records; and Monthly/annual reports to State agencies.

Task 6: Performance Monitoring Performance monitoring shall be conducted by Settling Defendant to ensure that all Performance Standards are met. 15

A.

Performance Standard Verification Plan: The purpose of the PSVP is to provide a mechanism to ensure that both short-term and long-term Performance Standards for the RA are met. Settling Defendant shall submit the Draft PSVP with the Pre-Final Design. Upon approval by U.S. EPA, Settling Defendant shall implement the PSVP according to the approved schedule. The PSVP shall include: 1. 2. 3. 4. QAPP Health and Safety Plan Field Sampling Plan Specification of those tasks to be performed by Settling Defendant to demonstrate compliance with the Performance Standards and a schedule for the performance of these tasks.

IV. CONTENT OF SUPPORTING PLANS The documents listed in this section, including the QAPP; the Field Sampling Plan; the Health and Safety Plan; the Contingency Plan; the CQAPP are documents, which must be prepared by Settling Defendant and submitted as outlined in Section III of this SOW. The following section describes the required contents of each of these supporting plans. 1. Quality Assurance Project Plan

Settling Defendant shall develop an OU2-specific QAPP, covering sample analysis and data handling for samples collected in all phases of the required Work, based upon the Consent Decree and guidance provided by U.S. EPA. The QAPP shall be consistent with the requirements of the U.S. EPA Contract Lab Program (CLP) for laboratories proposed outside the CLP. The QAPP shall at a minimum include: Project Description, including: - Operable Unit 2 History; - Past Data Collection Activity; - Project Scope; - Sample Network Design; - Parameters to be Tested and Frequency; and - Project Schedule Project Organization and Responsibility Quality Assurance Objective for Measurement Data, including: -Level of Quality Control Effort; 16

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-Accuracy, Precision and Sensitivity of Analysis; and -Completeness, Representativeness and Comparability Sampling Procedures Sample Custody, including: -Field Specific Custody Procedures and -Laboratory Chain of Custody Procedures Calibration Procedures and Frequency, including: -Field Instruments/Equipment and -Laboratory Instruments Analytical Procedures, including: -Non-Contract Laboratory Program Analytical Methods; -Field Screening and Analytical Protocol; and -Laboratory Procedures. Internal Quality Control Checks, including: -Field Measurements and -Laboratory Analysis Data Reduction, Validation, and Reporting, including: -Data Reduction; -Data Validation; and -Data Reporting Performance and System Audits, including: -Internal Audits of Field Activity; -Internal Laboratory Audit; -External Field Audit; and -External Laboratory Audit Preventive Maintenance, including: -Routine Preventative Maintenance Procedures and Schedules; -Field Instruments/Equipment; and -Laboratory Instruments Specific Routine Procedures to Assess Data Precision, Accuracy, and Completeness, including: -Field Measurement Data and -Laboratory Data

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Corrective Action, including: -Sample Collection/Field Measurement and -Laboratory Analysis Quality Assurance Reports to Management

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Settling Defendant shall submit the draft QAPP to U.S. EPA for review and approval. The QAPP shall be designed to address all phases of the project from pre-design to confirmatory sampling. If, because of the logistics of the project, the initial QAPP, developed as part of the RD Work Plan, does not lend itself to addressing all phases of the project, the QAPP shall be modified to incorporate any appropriate changes. 2. Health and Safety Plan

Settling Defendant shall develop a Health and Safety Plan, which is designed to protect on-site personnel and area residents from physical, chemical and all other hazards posed by this RA. The Health and Safety Plan shall develop the performance levels and criteria necessary to address the following areas: Description of OU2 Personnel Levels of protection Safe work practices and safe guards Medical surveillance Personal and environmental air monitoring Personal protective equipment Personal hygiene Decontamination - personal and equipment OU 2 work zones Contaminant control Contingency and emergency planning Logs, reports and record keeping

The Health and Safety Plan shall follow U.S. EPA guidance and all OSHA requirements as outlined in 29 CFR Parts 1910 and 1926. As part of the Health and Safety Plan, Settling Defendant shall include a Contingency Plan describing procedures to be used in the event of an accident or emergency at OU2. The Contingency Plan shall include, at a minimum, the following: 1. Name of the person or entity responsible for responding in the event of an emergency incident;

18

2.

Plan and date(s) for meeting(s) with the local community, including local, State, and Federal agencies involved in the cleanup, as well as local emergency squads and hospitals; First aid medical information; Air Monitoring Plan (if applicable); and Spill Prevention, Control, and Countermeasures (SPCC) Plan (if applicable), as specified in 40 CFR Part 109 describing measures to prevent and contingency plans for potential spills and discharges from materials handling and transportation.

3. 4. 5.

3.

Field Sampling Plan

Settling Defendant shall develop a Field Sampling Plan (as described in "Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA," October 1988). The Field Sampling Plan should supplement the QAPP and address all sample collection activities. 4. Construction Quality Assurance Project Plan

Settling Defendant shall submit a Construction Quality Assurance Project Plan (CQAPP) that describes the OU2-specific components of the quality assurance program, which shall ensure that the completed project meets or exceeds all design criteria, plans, and specifications. The draft CQAPP shall be submitted with the preliminary design, and the final CQAPP shall be submitted with the final design. The CQAPP shall contain, at a minimum, the following elements: 1. Responsibilities and authorities of all organizations and key personnel involved in the design and construction of the RA; Qualifications of the Quality Assurance Official to demonstrate he possesses the training and experience necessary to fulfill his identified responsibilities; Protocols for sampling and testing used to monitor construction; Identification of proposed quality assurance sampling activities including the sample size, locations, frequency of testing, acceptance and rejection data sheets, problem identification and corrective measures reports, evaluation reports, acceptance reports, and final documentation. A

2.

3. 4.

19

description of the provisions for final storage of all records consistent with the requirements of the Consent Decree shall be included; and 5. Reporting requirements for CQA activities shall be described in detail in the CQAPP. This shall include such items as daily summary reports, inspection data sheets, problem identification and corrective measures reports, design acceptance reports, and final documentation. Provisions for the final storage of all records shall be presented in the CQAPP.

V. SUMMARY OF MAJOR DELIVERABLES/SCHEDULE A summary of the project schedule and reporting requirements contained in this SOW is presented below: Deliverable/Milestone 1. Design Work Plan Due Date (calendar days) Thirty (30) days after Notice of Authorization to proceed with RD As described in Section IX of the Consent Decree Ninety (90) days after Settling Defendant's receipt of all validated predesign sample results, or a longer period of time as may be specified by U.S. EPA in writing

2.

Progress Reports

3.

Preliminary Design (50%)

4.

Pre-Final Design (95%)

One hundred twenty (120) days after receipt of U.S. EPA's comments on the Preliminary Design, or a longer period of time as may be specified by U.S. EPA in writing Sixty (60) days after receipt of U.S. EPA's comments on the Pre-Final Design, or a longer period of time as may be specified by U.S. EPA in writing Thirty (30) days after U.S. EPA's

5.

Final Design (100%)

6.

RA Work Plan

20

approval of the Final Design 7. Award RA Contract(s) As defined in the U.S. EPAapproved RA Work Plan As defined in the U.S. EPAapproved RA Work Plan As defined in the U.S. EPAapproved RA Work Plan Fifteen (15) days after PreConstruction Inspection

8.

Pre-Construction Inspection Meeting

9.

Pre-Construction Inspection

10.

Initiate Construction of RA

11.

Pre-certification inspection of OU2 RA

Pursuant to Paragraph 52 of the Consent Decree and Section III, Task 4.B. of this SOW Pursuant to Paragraph 52 of the Consent Decree and Section III, Task 4.D.2. of this SOW As defined in the RA Work Plan Pursuant to Paragraph 53 of the Consent Decree and Section III, Task 4.C. of this SOW Pursuant to Paragraph 53 of the Consent Decree and Section III, Task 4.3. of this SOW

12.

Certification of Completion of the OU2 RA Report

13. 14.

Final O & M Plan Pre-certification inspection of OU-2 Work

15.

Certification of Completion of Work Report

21

APPENDIX E DECLARATION OF RESTRICTIVE COVENANTS AND ENVIRONMENTAL PROTECTION EASEMENT Allied Paper/Kalamazoo River MDEQ Site ID No.: U.S. EPA Site No.:

MDEQ Reference No.: [insert #] This Declaration of Restrictive Covenants and Environmental Protection Easement ("Declaration") is made by and between Georgia-Pacific LLC, a Georgia corporation ("Grantor" ), having an address of 133 Peachtree Street, N.E., Atlanta, Georgia 30303; and the Michigan Department of Environmental Quality ("MDEQ"), having an address c/o Director, Michigan Department of Environmental Quality, P.O. Box 30473, Lansing, Michigan 48909-7973, shall be considered as the Grantee. (collectively referred to as "Parties"). RECITAL S A. Grantor is the owner of the real property located in Kalamazoo County and legally described in Exhibit 1 attached hereto ("Property"). B. The Property is part of operable unit 2 of the Allied Paper, Inc./Portage Creek/Kalamazoo River Superfund Site ("Site"), MDEQ, Site ID No. [###], for which a Record of Decision ("ROD") has been issued by the United States Environmental Protection Agency ("U.S. EPA") for the purpose of carrying out Response Activities, as defined below, needed to address environmental contamination at the Site. The MDEQ concurred with the ROD in a letter dated _______. C. The United States Environmental Protection Agency has, pursuant to Section 122 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), entered into a Consent Decree ("CD") with the Parties for the design and implementation of Response Activities at the Property. The CD, which bears Docket Number [ ], requires that Grantor place certain limitations on the use of the Property as therein described. D. By this Declaration of Restrictive Covenants and Environmental Protection Easement, Grantee assumes no additional liability to the United States or the State of Michigan with regard to the Property. E. The Site was placed on the National Priorities List ("NPL") in 1990 and is a facility as that term is defined in Section 101(9) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA") and Section 20101(0) of Part 201, Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, MCL 324.20101(0) et seq. ("NREPA"). Hazardous substances, including polychlorinated biphenyls ("PCBs") have been released and/or disposed of on the Property. The hazardous substances were contained in a landfill from the prior manufacturing activities associated with the Site. Prior to recording this Declaration, Response Activities have been undertaken to remove certain contaminated soils and waste debris.

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F. At the time of recording of this Declaration, U.S. EPA has determined that the hazardous substances at the Property present a threat to human health through direct contact or ingestion, and that the land use and resource restrictions set forth below are required to prevent unacceptable exposures. G. The restrictions contained in this covenant and easement are based upon information available to the U.S. EPA and MDEQ at the time the ROD was issued. Failure of the Response Activities to achieve and maintain the criteria, exposure controls, and requirements specified in the ROD; future changes in the environmental condition of the Property, the applicable cleanup criteria or the discovery of environmental conditions at the Property that were not accounted for in the ROD; or the use of the Property in a manner inconsistent with the restrictions described herein, may result in this Declaration not being protective of public health, safety, and welfare, and the environment. Information pertaining to the environmental conditions at the Property and Response Activities undertaken at the Site is on file with the MDEQ, Remediation and Redevelopment Division. Property Identification Number: [####]. DEFINITIONS "MDEQ" shall mean the Michigan Department of Environmental Quality, its successor entities, and those persons or entities acting on its behalf; "NREPA" shall mean Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. "Owner" shall mean, at any given time, the then current title holder of the Property or any portion thereof; "Response Activities" shall mean, consistent with section 101(25) of CERCLA, such Activities as have been or may be necessary to conduct any removal, remedy or remedial action, as those terms are defined in sections 101(23) and 101(24) of CERCLA, on the Property and/or at the Site, including enforcement activities related thereto;

"U.S. EPA" shall mean the United States Environmental Protection Agency, its successor entities and those persons or entities acting on its behalf. All other terms used in this document which are defined in Part 3, Definitions, of the NREPA; Part 201 of the NREPA; or the Part 201 Administrative Rules ("Part 201 Rules"), 1990 AACS R 299.5105 et seq., shall have the same meaning in this document as in Parts 3 and 201 of the NREPA and the Part 201 Rules, as of the recording date of this instrument. NOW THEREFORE, the parties agree as follows: 1. Recitals. The foregoing Recitals shall not be interpreted as mere recitals, but shall be

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deemed part of this instrument and shall be enforceable hereunder. 2. Purpose. The purpose of this Declaration is to create restrictions in Grantor's real property rights, which will run with the land for as long as necessary to facilitate the remediation of environmental contamination described in the ROD as determined or modified by U.S. EPA; to grant a right of access to Grantee and its assigns and representatives to monitor and conduct Response Activities; to protect human health and the environment by reducing the risk of exposure to contaminants of concern; and to provide for the long-term protectiveness of the remediation. 3. Grant. Grantor, on behalf of itself, its successors and assigns, in consideration of the terms of the Consent Decree in the case of the United States of America v. Georgia-Pacific, LLC, , does hereby covenant and declare that the Property shall be subject to the restrictions on use set forth below, and does give, grant, declare and convey to the Grantee, and its assigns, with general warranties of title, 1) the perpetual right to enforce said use restrictions, and 2) an environmental protection easement of the nature and character, and for the purposes hereinafter set forth, with respect to the Property. Grantor, on behalf of itself, its successors and assigns, in consideration of the settlement terms set forth in the CD, warrants to the Grantee, and its assigns and representatives : 1) an environmental protection easement, the nature, character, and purposes for which are set forth herein; and 2) the right to enforce said easement. 4. Third Party Beneficiary. The Grantor, on behalf of itself and its successors, transferees, and assigns, hereby agrees that the United States, acting by and through the U.S. EPA its successors and assigns shall be a third party beneficiary ("Third Party Beneficiary") of all the benefits and rights set out in the restrictions, covenants, easements, exceptions, notifications, conditions and agreements herein, and that the Third Party Beneficiary shall have the right to enforce the restrictions described herein as if they were a party hereto. No other rights in third parties are intended by this Declaration, and no other person or entity shall have any rights or authorities hereunder to enforce these restrictions, terms, conditions or obligations beyond the parties hereto, their successors, assigns, subsequent owners of the Property and the Third Party Beneficiary. 5. Restrictions on Use: Owner, on behalf of itself, its successors and assigns or other persons acquiring an interest in the Property and their authorized agents, employees, or persons acting under their direction and control, covenants and declares that the Property shall be subject to the restrictions on use set forth below, and intends that said restrictions and covenants run with the land and may be enforced in perpetuity against any and all Owners by Grantee and the Third Party Beneficiary and its successors and assigns. Owner, its successors and assigns shall:

a)

Not use the Property in a manner that causes existing contamination to migrate beyond the boundaries of the Property, increases the cost of Response Activities, or otherwise exacerbates the existing soil and groundwater contamination located on the Property. The term exacerbation is more specifically defined in Section 20101(1)(n) of the NREPA.

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b)

Prohibit and shall not use the Property in a manner that may interfere with Response Activities at the Property, including interim response, remedial action, operation and maintenance, monitoring, or other measures necessary to assure the effectiveness and integrity of the remedial action. Restrict the uses of the Property to those uses compatible with industrial, or other use that is consistent with the assumptions and basis for the cleanup criteria established pursuant to Section 20120a(1)(i) of the NREPA. Except as prohibited under paragraph 1(d) below, uses compatible with the commercial subcategories II through IV, described in Exhibit 3 (Allowable Uses), or recreational land use designations established under Part 201 are also allowable provided such uses are consistent with the restrictions and conditions set forth in this Restrictive Covenant and does not involve occupancy of the Property on an overnight basis. Cleanup criteria for specific categories of land use are located in the Government Documents section of the Library of Michigan. Restrict the uses of the Property such that the Property shall not be used for any of the following purposes: i) A residence, including any mobile home or factory built housing, constructed or installed for use as residential human habitation; ii) A hospital for humans; iii) A public or private school; iv) A day care center for children; v) Any agricultural uses vi) Any purpose involving occupancy on a 24-hour basis, residential or otherwise. Not construct or use wells or other devices on the Property to extract groundwater for consumption, irrigation, or any other use, except for wells and devices that are necessary for Response Activities, testing and monitoring groundwater contamination levels in accordance with plans approved by the MDEQ or U.S. EPA. Short term dewatering for construction purposes is permitted provided the dewatering, including management and disposal of the groundwater, is conducted in accordance with all applicable local, state, and federal laws and regulations and does not cause or result in a new release, exacerbation of existing contamination, or any other violation of local, state, and federal environmental laws and regulations including, but not limited to, Part 201 of the NREPA. Prohibit and shall not perform any construction of any buildings on the Property unless any such buildings are outside the area depicted in Exhibit 2 (otherwise known as the landfill area) and the building construction plans are submitted to and approved by the U.S. EPA. Allow the installation of permanent markers that have been approved by the U.S. EPA and the MDEQ within the Property boundaries. These permanent markers

c)

d)

e)

f)

g)

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shall more or less describe the restricted area and the nature of the prohibitions specified in the provisions of this Restrictive Covenant and the liber and page numbers of this Restrictive Covenant as recorded in the Kalamazoo County Register of Deeds Office. The Owner shall not remove, cover, obscure, or otherwise alter or interfere with any permanent markers placed on the Property at the locations generally depicted in Exhibit 2. Owner shall keep vegetation and other materials clear of any permanent markers to assure that the markers are readily visible. 6. Access: . Grantor grants to the Grantee, and its representatives and assigns an irrevocable and continuing right of access at all reasonable times to the Property for the purposes of: a) monitoring, overseeing and/or implementing the Response Activities described in the ROD or any other U.S. EPA or MDEQ decision document for the Property or the Site, and conducting any necessary inspection and repair of any operation and maintenance equipment; b) verifying any data or information submitted to the U.S. EPA and/or the MDEQ, and determining and monitoring compliance with the ROD, any other U.S. EPA or MDEQ decision document, and any implementing statement of work or work plan; c) verifying that no action is being taken on the Property in violation of the terms of this instrument or of any federal or state environmental laws or regulations; d) conducting and/or monitoring investigations relating to the nature and extent of contamination on or near the Property and the Site including, without limitation, sampling of air, water, sediments, soils, and specifically, without limitation, obtaining split or duplicate samples; e) conducting periodic reviews of the Response Activities at the Property and at the Site, including but not limited to, reviews required by applicable statutes and/or regulations; and f) implementing additional or new Response Activities, if the remedial action selected in the ROD or any other U.S. EPA and/or MDEQ decision document results in any hazardous substances, pollutant or contaminants remaining at the Site above levels that allow for unlimited use and unrestricted exposure, and U.S. EPA, in consultation with MDEQ and pursuant to Section 121(c) of CERCLA, determines that, upon its completion, the selected remedy for the Site will not be protective of public health, welfare or the environment; or g) implementing additional or new response activities, as that term is defined in Section 20101(1)(ee) of the NREPA, if the remedial action selected in the ROD or any other MDEQ and/or U.S. EPA decision document results in any hazardous substances, pollutants or contaminants remaining at the Site above the criteria developed pursuant to

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Section 20120(a)(1)(i) of the NREPA, and MDEQ, in consultation with U.S. EPA, determines that , upon its completion, the remedy will not be protective of the public health, safety, welfare or the environment. 7. MDEQ Entry, Access, and Response Authority: Nothing in this instrument shall limit or otherwise affect MDEQ's right of entry and access, or authorities to take Response Activities as defined in this instrument, as well as in Section 20101(1)(ee) Part 201 of the NREPA, under CERCLA, the National Contingency Plan, 40 C.F.R. Part 300, the NREPA, and any successor statutory provisions, or other state or federal law. U.S. EPA Entry, Access, and Response Authority: Nothing in this instrument shall limit or otherwise affect U.S. EPA's right of entry and access, or authorities to take Response Activities as defined in this instrument, as well as in CERCLA, the National Contingency Plan, 40 C.F.R. Part 300, and any successor statutory provisions, or other state or federal law. Term: This Restrictive Covenant and Environmental Protection Easement shall run with the Property until terminated or revoked pursuant to paragraph 10, below, and shall be binding on the Owner; future owners; and all current and future successors, lessees, easement holders, their assigns, and their authorized agents, employees, or persons acting under their direction and control. Modification: The Restrictive Covenant and Environmental Protection Easement contained herein shall continue for so long as necessary to accomplish the Response Activities described in the CD, and shall not be modified, suspended, terminated or revoked without express written authorization by U.S. EPA. U.S. EPA, and Grantee as necessary, may modify or terminate, in whole or in part, the foregoing restrictions or any portion thereof in writing, as authorized by law. The Grantor or any subsequent owner of the Property may seek to modify or terminate, in whole or in part, the restrictions set forth herein by submitting to U.S. EPA a written application that identifies each such restriction to be terminated or modified, describes the terms of each proposed modification, and sets out any proposed revisions to the environmental easement/restrictive covenants in this Declaration. Each application for termination or modification of any restriction or easement set forth herein shall include a demonstration by the applicant that the requested termination or modification will not interfere with, impair or reduce: a) the effectiveness of any measures undertaken pursuant to the CD; b) the long term protectiveness of the remediation; or c) protection of human health and the environment. If U.S. EPA makes a determination that an application satisfies the requirements of this paragraph, including the criteria specified in (a) through (c), U.S. EPA will notify the owner of the Property in writing. If U.S. EP A does not respond in writing within 90 days to an application to modify or terminate any restrictions, U.S. EPA shall be deemed to have denied Owner's application. Any modification to or rescission of this Restrictive

8.

9.

10.

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Covenant and Environmental Protection Easement shall be filed with the appropriate Registrar of Deeds by the then Owner and a certified copy shall be returned to MDEQ and U.S. EPA at the addresses listed below. 11. Enforcement: The Grantor, Grantee or Third Party Beneficiary, each acting independently and without the others, shall be entitled to enforce the terms of this instrument in a judicial action seeking specific performance or other applicable remedies at law or in equity. The right to so enforce the conditions and restrictions in this instrument are in addition to any other remedies that may be available, including, but not limited to, remedies under CERCLA. Whether to enforce the terms of this instrument or to participate in an enforcement action brought by any of the others shall be at the sole discretion of the Grantor, Grantee and/or the Third Party Beneficiary and any forbearance, delay or omission to exercise any of their rights under this instrument in the event of a breach of any term of this Declaration shall not be deemed a waiver by any such party of any such term, or any other term, or any rights of any of the Grantor, Grantee or Third Party Beneficiary under this instrument. These covenants shall not inure to the benefit of the public in general. Transfer of Interest: The Owner shall provide notice to the MDEQ and to U.S. EPA of the Owner's intent to transfer any interest in the Property, or any portion thereof, at least fourteen (14) business days prior to consummating the conveyance. A conveyance of title, easement, or other interest in the Property shall not be consummated by the Owner without complete provision for compliance with the terms and conditions of this Restrictive Covenant and Environmental Protection Easement and the applicable provisions of Section 20116 of the NREPA, as determined by U.S. EPA and MDEQ. The Owner shall include in any instrument conveying any interest in any portion of the Property, including but not limited to, deeds, leases, and mortgages, a notice which is in substantially the following form: NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO A DECLARATION OF RESTRICTIVE COVENANT AND ENVIRONMENTAL PROTECTION EASEMENT , DATED _______________, 2009, AND RECORDED WITH THE ____________ COUNTY REGISTER OF DEEDS, LIBER _______, PAGE _______. THESE RIGHTS AND RESTRICTIONS RUN WITH THE LAND AND ARE ENFORCEABLE BY THE GRANTOR, GRANTEE AND THE THIRD PARTY BENEFICIARY IDENTIFIED THEREIN. 13. Reservation of Defenses: Nothing in this instrument shall be construed to enlarge the jurisdiction of federal courts, to create subject matter jurisdiction to adjudicate any claims against U.S. EPA, or otherwise to operate as a waiver of any sovereign immunity of the United States, and the United States expressly reserves all rights and defenses it may have in connection with any action initiated pursuant to this instrument. Nothing herein shall be construed as Grantor's waiver of any rights or defenses available at law, in equity, provided by any statute or by any state and federal constitution.

12.

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14.

Notices: Any notice, demand, request, consent, approval, or communication that is required to be made or obtained under this Declaration shall be made in writing and include a statement that the notice is being made pursuant to the requirements of this Declaration and shall be served either personally or sent via first class mail, postage prepaid, as follows: For the U.S. EPA: Director Superfund Division (SR-6J) U.S. Environmental Protection Agency, Region 5 77 West Jackson Blvd. Chicago, IL 60604 with a copy to: Office of Regional Counsel (C-14J) U.S. Environmental Protection Agency, Region 5 77 West Jackson Blvd. Chicago, IL 60604 For the MDEQ: Director Michigan Department of Environmental Quality P.O. Box 30473 Lansing, MI 48909-7973

15.

Miscellaneous. a. Controlling Law: The interpretation a