USA v. Dravo Corporation, et al

Filing 305

CONSENT DECREE WITH DESCO CORPORATION.Ordered by Senior Judge Joseph F. Bataillon. (ADB)

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UNITED STATES DISTRJCT COURT DISTRJCT OF NEBRASKA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERJCA, Plaintiff, Civil No. 8:0l-CV-500-JFB-TDT V. DRAVO, LLC (f/k/a DRAVO CORPORATION), DESCO CORPORATION, DESCO CORPORATION d/b/a MARSHALLTOWN INSTRUMENTS, INC. Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x CONSENT DECREE WITH DESCO CORPORATION annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year. Rates are available online at "National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto. "Operable Unit 01 or "OU 01" shall mean the portion of the Site that addresses groundwater contamination within the Colorado Avenue subsite, and depicted generally on the map included in Appendix A. "Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral or an upper- or lower-case letter. "Parties" shall mean the United States and the Settling Defendant. "Plaintiff' shall mean the United States. "RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also known as the Resource Conservation and Recovery Act). "Section" shall mean a portion of this Consent Decree identified by a Roman numeral. "Settling Defendant" shall mean Desco Corporation. "Site" shall mean the Hastings Groundwater Contamination Superfund Site, located in and around the City of Hastings, Nebraska, and generally shown on the map included in Appendix A. "Hastings Groundwater Contamination Superfund Site Special Account" or "Special Account" shall mean the special account, within the EPA Hazardous Substance Superfund, established for the Site by EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3). "State" shall mean the State of Nebraska. "United States" shall mean the United States of America and each department, agency, and instrumentality of the United States, including EPA. V. STATEMENT OF PURPOSE 4. By entering into this Consent Decree, the mutual objective of the Parties is for Settling Defendant to make a cash payment to resolve its alleged civil liability with regard to OU 01 of the Site under Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607, as provided in the Covenants by Plaintiff in Section VIII, and subject to the Reservations of Rights by United States in Section IX. 3 VI. PAYMENT OF RESPONSE COSTS 5. Payment of Response Costs. Within 30 days after the Effective Date, Settling Defendant shall pay to EPA $131,067, plus an additional sum for Interest from the date of lodging of this Consent Decree through the date of payment. 6. Settling Defendant shall make payment at in accordance with instructions provided to Settling Defendant by the Financial Litigation Program (FLP) of the U.S. Attorney's Office for the District of Nebraska after the Effective Date. The payment instructions provided by the FLU will include a Consolidated Debt Collection System (CDCS) number, Site/Spill ID Number 07S2, and DJ Number 90-11-2-1260/10, which shall be used to identify all payments required to be made in accordance with this Consent Decree. The FLP will provide the payment instructions to: David Crane Chief Financial Officer DESCO CORPORATION 7795 Walton Parkway, Suite 175 New Albany, OH 43054 Tel: (614) 888-8855 on behalf of Settling Defendant. Settling Defendant may change the individual to receive payment instructions on its behalf by providing written notice to DOJ and EPA of such change in accordance with Section XIV (Notices and Submissions). 7. Deposit of Payment. The total amount to be paid pursuant to Paragraph 5 (Payment of Response Costs) shall be deposited by EPA in the Hastings Groundwater Contamination Superfund Site Special Account to be retained and used to conduct or finance response actions at or in connection with the Site, or to be transferred by EPA to the EPA Hazardous Substance Superfund. 8. Notice of Payment. At the time of payment, Settling Defendant shall send to EPA and DOJ in accordance with Section XIV (Notices and Submissions), a notice of this payment including references to the CDCS Number, Site/Spill ID Number 07S2, and DJ Number 90-11-2-1260/10. VII. FAILURE TO COMPLY WITH CONSENT DECREE 9. Interest on Late Payments. If Settling Defendant fails to make the payment required by Paragraph 5 (Payment of Response Costs) by the required due date, Interest shall accrue on the unpaid balance from the Effective Date through the date of payment. 10. Stipulated Penalty for Late Payments. a. If any amounts due to EPA under Paragraph 5 (Payment of Response Costs) are not paid by the required date, Settling Defendant shall be in violation of this Consent Decree and shall pay, as a stipulated penalty, in addition to the Interest required by Paragraph 9 (Interest on Payments): 4 Penalty Per Violation Per Working Day $1,000 $2,000 $4,000 $8,000 Period of Noncompliance 1st through 14th day 15th through 30th day 31st through 60th day 61st day and beyond b. Stipulated penalties are due and payable within 30 days after the date of the demand for payment of the penalties by EPA. Settling Defendant shall make all payments at _ https:// in accordance with the procedures under Paragraph 6 and shall send notice of such payments in accordance with the procedures under Paragraph 8 (Notice of Payment). Settling Defendant shall indicate in the comment field on the payment form that the payment is for stipulated penalties. c. Penalties shall accrue as provided in this Paragraph regardless of whether EPA has notified Settling Defendant of the violation or made a demand for payment but need only be paid upon demand. All penalties shall begin to accrue on the day after payment is due and shall continue to accrue through the date of payment. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate penalties for separate violations of this Consent Decree. 11. If the United States brings an action to enforce this Consent Decree, Settling Defendant shall reimburse the United States for all costs of such action, including but not limited to costs of attorney time. 12. Payments made under this Section shall be in addition to any other remedies or sanctions available to Plaintiff by virtue of Settling Defendant's failure to comply with the requirements of this Consent Decree. 13. Notwithstanding any other provision of this Section, the United States may, in its unreviewable discretion, waive payment of any portion of the stipulated penalties that have accrued pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse Settling Defendant from payment as required by Section VI (Payment of Response Costs) or from performance of any other requirements of this Consent Decree. VIII. COVENANTS BY PLAINTIFF 14. Except as specifically provided in Section IX (Reservation of Rights by United States), the United States covenants not to sue or to take administrative action against Settling Defendant pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), regarding OU 01 of the Site. With respect to present and future liability, these covenants shall take effect upon the Effective Date. These covenants are conditioned upon the satisfactory performance by Settling Defendant of its obligations under this Consent Decree. These covenants extend only to Settling Defendant and do not extend to any other person. IX. RESERVATION OF RIGHTS BY UNITED STATES 15. The United States reserves, and this Consent Decree is without prejudice to, all rights against Settling Defendant with respect to all matters not expressly included within 5 "Appendix A" is the map of the Site. OU O 1 is located within the Colorado Avenue Subsite. XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 3 5. This Consent Decree shall be lodged with the Court for a period of at least 30 days for public notice and comment. The United States reserves the right to withdraw or withhold its consent if the comments regarding the Consent Decree disclose facts or considerations that indicate that this Consent Decree is inappropriate, improper, or inadequate. Settling Defendant consents to the entry of this Consent Decree without further notice. 36. If for any reason this Court should decline to approve this Consent Decree in the form presented, this Consent Decree is voidable at the sole discretion of any Party and the terms of the Consent Decree may not be used as evidence in any litigation between the Parties. XVIII. SIGNATORIES/SERVICE 37. Each undersigned representative of Settling Defendant and [TED of] the U.S. Department of Justice, Environment and Natural Resources Division certifies that they are authorized to enter into the terms and conditions of this Consent Decree and to execute and bind legally such Party to this document. 38. Settling Defendant agrees not to oppose entry of this Consent Decree by this Court or to challenge any provision of this Consent Decree, unless the United States has notified Settling Defendant in writing that it no longer supports entry of the Consent Decree. 39. Settling Defendant shall identify, on the attached signature page, the name and address of an agent who is authorized to accept service of process by mail on its behalf with respect to all matters arising under or relating to this Consent Decree. Settling Defendant agrees to accept service in that manner and to waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court, including but not limited to, service of a summons. XIX. FINAL JUDGMENT 40. Upon entry of this Consent Decree by the Court, this Consent Decree shall constitute the final judgment between the United States and Settling Defendant. The Court enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. SO ORDERED THIS 5th DAY OF February ---, 20 24 United States District Judge 11 Signature Page for Consent Decree Regarding the Hastings Groundwater Contamination Superfund Site FOR THE UNITED STATES OF AMERICA: Susan M. Akers Deputy Section Chief U.S. Department of Justice Environment and Natural Resources Division Environmental Enforcement Section P.O. Box 7611 Washington, D.C. 20044-7611 s/ Erika M. Wells Erika M. Wells, OR # 05500 Senior Counsel U.S. Department of Justice Environment and Natural Resources Division Environmental Enforcement Section 7600 Sand Point Way, NE Seattle, Washington 98115 s/ Joanna Citron Day Joanna Citron Day, DC # 477833 Senior Counsel U.S. Department of Justice Environment and Natural Resources Division Enviromnental Enforcement Section P.O. Box 7611 Washington, D.C. 20044-7611 12 SUSAN T. LEHR Acting United States Attorney District of Nebraska TIMOTHY R. HOOK, #24529 Assistant U.S. Attorney Omaha, NE 68102-1506 Tel: (402) 661-3700 Fax: (402) 661-3086 E-mail: 13 #74>'JOF.W'4.W2CWA>H.>KW.)C..W!.4'C+7>4WK6.W'HK7>4HWCAO>+R(L/CWA>L(<9>(L9A>W $PB0D3>,W$9M0W MEGHAN MCCOLLISTER Digitally signed by MEGHAN MCCOLLISTER Date: 2023.09.27 10:47:51 -05'00' /56(>WW*A;;8IN1EW !/47A>':W+=7>7HKC'KACW!.47A>WW &$W>Q9CA><.>K';W CAK/)K9A>W4/>*UW   W !.>>.CWAO:.Q'C+W 0>0S'W'>H'HW W Gulley, Katherine Digitally signed by Gulley, Katherine Date: 2023.09.26 08:08:47 -05'00' 'L6/C7>/WO::/UW LLAG/V+Q7H/CW &%W>Q9CA></>K';W CAK/*K9A>W4/>*UW"/49A>WW  W"/?@/CWAO;/Q(C-W .>.T'W(>H'HW W  Signature Page for Consent Decree Regarding the Hastings Groundwater Contamination Superfund Site A FOR DESCO CORPOR TION: C�h'l·?o,?J Date Name (print): f>P\vO> A. {;__f...'�r:J{: Title: C.rn:Cf f'):r-lANC.t:'AL C)ff"J:.C-t-)L Address: 11 q o wAurov fl-lt-c>i. . b0j:'U: l 15 r-)ew AL-&'\.v-i On --\fuE>-i Agent Authorized to Accept Service on Behalf of Above-signed Party: Name (print): _D_A_�_� __A--=C__,_f-A_,-)___ _c _ Title: Crl� tlJJAi-lO::Ai dftCC,t;Jt. Company: i);l;:)CD Cb(! PbP..l':..n:::or,) Address: ']JS� LvA1xoiJ Ptsw-f bJ� n S rJew A l--et-\"1"i OH -=l :bO 6 'i L.Gl\i"'l SbS· S86S Phone: email: 15 W 1-lthSI IJ Ith � e J ':l'h 1 � :: ., ·h s, ;; - � " •1 z 5 lm::u I < . f ., z .,;i: � z Far Mar C'\ ; North \� Inland ,, Whelan Enegry Wells d Plumes) � ll :: ":" n'.": � :': ; :-;B::o:".u'.':n:-". ;:ar:: y::---------------��-·---,,-1 ___r-B:-la . •c---.-.-- --.J------------..,_,,....,,,_-;: o_r_m . ......... ""' "- ...,_· .,..,_,,, ·"'' "'· "'"'-- -- ..�l. ���- ;����-� • · · · ..�o"'" ��!� ;3 �::: i eN A D e d F F - - ·· A� • �. _ ., 1 ' 1· I Co orado Ave . .. E.-�. --•· " .. �· . 1 . · · · Lr · ··· - · --l West,Hwy6 & Hwy 281 i .___ ··-- -�- - South Landfi-.lClk__..,-��-- r n a H stings Supe fu d Sites ..6. Sites Prl II<! l.,J Subsites '- f,l!,�ln'l•II Aru ).)� RtdJe- Rd � Garvey Elevator CCL4 c::::::::> West Hwy 6 & Hwy 281 PCE North Landfill TCE Colorado Avenue TCE E A�umptnn Rd c:=::, South Landfill c::::::> FarMarCo Avg CT-2017 c::::::> FarMarCo EDB-2017 c::::::> Second Str- Benzene 2016 FNAD Ground Water FNAD OUs 4, 8 and 16 Former Blaine NAD Boundary Whelan Energy Wells .§>'�DST,41� E P n,, bprl!SS Rd Nebraska counties Esri World Topographic Map E r.bnumeri R. 0 0.5 < 3 Miles NOTE: The Environmental Protection Agency does not guarantee the accuracy, i � l completeness, or timeliness of the information s hown, and shall not be li ble ; � '-+.,.,4 ·T t ,..¢' for any injury or loss resulting from reliance upon the information shown. 1 ,,RD1 -i I ' FNAD r. a I I I I 1-----·- -,• I I ✓I I :""'\ � f) U16 OU21 t 18 r R /. Explo�e� • Disposal • •F ormer Area � aval Ya rd Dufup ( \ j Former • Bomb & j Mine · 1 �,-L�- \ ' J...·J. \• ........ 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