United States of America v. Black Hills Nebraska Gas, LLC et al
Filing
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CONSENT DECREE Ordered by Judge Susan M. Bazis. (LRM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
Civil Action No. 8:24-cv-425
Black Hills Nebraska Gas, LLC,
Brightspeed Kansas Holdings, LLC,
and
Nebraska Public Power District.
Defendants.
CONSENT DECREE
TABLE OF CONTENTS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XXIII.
XXIV.
BACKGROUND ........................................................................................................3
JURISDICTION AND VENUE ..................................................................................5
PARTIES BOUND .....................................................................................................5
DEFINITIONS............................................................................................................5
OBJECTIVES .............................................................................................................8
PERFORMANCE OF THE WORK ............................................................................8
PROPERTY REQUIREMENTS ............................................................................... 10
FINANCIAL ASSURANCE ..................................................................................... 11
INDEMNIFICATION AND INSURANCE ............................................................... 15
PAYMENTS FOR RESPONSE COSTS ................................................................... 17
FORCE MAJEURE................................................................................................... 17
DISPUTE RESOLUTION......................................................................................... 18
STIPULATED PENALTIES ..................................................................................... 20
COVENANTS BY PLAINTIFF ................................................................................ 22
COVENANTS BY SETTLING DEFENDANTS....................................................... 23
EFFECT OF SETTLEMENT; CONTRIBUTION ..................................................... 23
RECORDS ................................................................................................................ 24
NOTICES AND SUBMISSIONS.............................................................................. 26
APPENDIXES .......................................................................................................... 27
MODIFICATIONS TO DECREE ............................................................................. 28
SIGNATORIES ........................................................................................................ 28
PRE-ENTRY PROVISIONS ..................................................................................... 28
INTEGRATION........................................................................................................ 28
FINAL JUDGMENT................................................................................................. 28
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I.
BACKGROUND
1.
The United States of America (“United States”), on behalf of the Administrator of
the United States Environmental Protection Agency (“EPA”), filed a complaint in this matter
under sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”) against Black Hills Nebraska Gas, LLC, d/b/a Black Hills Energy
(“Black Hills”), Brightspeed Kansas Holdings, LLC (“Brightspeed Kansas Holdings”), and
Nebraska Public Power District (“NPPD”).
2.
The United States in its complaint seeks, inter alia: (1) reimbursement of costs
incurred by EPA and the Department of Justice (“DOJ”) for response actions at the IowaNebraska Light & Power Company Superfund Site in Norfolk, Nebraska (“Site”), together with
accrued interest; and (2) performance by the defendants of a response action at the Site
consistent with the National Contingency Plan, 40 C.F.R. part 300 (“NCP”).
3.
In accordance with the NCP and section 121(f)(1)(F) of CERCLA, EPA notified
the State of Nebraska (“State”) on March 31, 2023, of negotiations with potentially responsible
parties (“PRPs”) regarding the implementation of the remedial design and remedial action
(“RD/RA”) for the Site, and EPA has provided the State with an opportunity to participate in
such negotiations and to be a party to this Consent Decree (“Decree”).
4.
In accordance with section 122(j)(1) of CERCLA, EPA notified the U.S.
Department of the Interior on April 3, 2023, of negotiations with PRPs regarding the release of
hazardous substances that may have resulted in injury to the natural resources under federal
trusteeship and encouraged the trustee(s) to participate in the negotiation of this Decree.
5.
The defendants that have entered into this Decree (“Settling Defendants”) do not
admit any liability to Plaintiff arising out of the transactions or occurrences alleged in the
complaint, nor do they acknowledge that the release or threatened release of hazardous
substance(s) at or from the Site constitutes an imminent and substantial endangerment to the
public health or welfare or the environment.
6.
In accordance with section 105 of CERCLA, EPA listed the Site on the National
Priorities List (“NPL”), set forth at 40 C.F.R. part 300, Appendix B, by publication in the Federal
Register on April 7, 2016, 81 Fed. Reg. 20252.
7.
Subsurface soil and groundwater samples collected by the EPA at the Site in
1990, 1991, and 1992 were found to be contaminated with manufactured gas plant-related
compounds, including PAHs (pyrene, naphthalene, benzo(a)anthracene, benzo(b)fluoranthene,
phenanthrene, chrysene, and indeno(1,2,3-cd)pyrene)), BTEX, and metals.
8.
In April 2007, the EPA entered into an Administrative Settlement Agreement and
Order on Consent (“ASAOC”) for Engineering Evaluation/Cost Analysis (“EE/CA”) with Centel
Corporation, Black Hills, and NPPD. In 2022, Centel Corporation (“Centel”) converted into
Brightspeed Kansas Holdings, LLC, a limited liability company, which is the successor in
interest to Centel in this matter. The primary goals of the EE/CA were to develop removal action
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goals for impacted media, to identify potential removal action technologies and approaches, and
to develop and evaluate removal alternatives to address the coal-tar contamination. The EE/CA
site characterization field investigation activities were conducted between November and
December 2007, June and July 2009, and January 2010. The field investigation activities were
designed to gather data to better define and characterize the subsurface geology and site
hydrogeology, the extent of soil dense non-aqueous phase liquid, and dissolved-phase
groundwater contamination, and to support an assessment of the human health and ecological
risks posed by the release of hazardous substances at the Site. Based on reports obtained from the
Nebraska Department of Environmental Quality, the EE/CA Site Characterization Report
identified 30 leaking underground storage tanks within 0.25 mile of the Site. The recommended
removal action alternative included building demolition, excavation and disposal of
contaminated soils, site restoration, and groundwater monitoring for at least ten years as a postremoval site control.
9.
In August 2013, the EPA issued an Enforcement Action Memorandum and
entered into an ASAOC for Removal Action with Centel, Black Hills, and NPPD. In 2014, onsite buildings were demolished and approximately 10,425 tons of contaminated soil were
excavated and transported off-site for disposal. The Site was restored with a concrete parking lot
on the Black Hills parcel and a fenced gravel lot on the NPPD parcel. The on-site construction
and restoration activities were completed in June 2014.
10.
In May 2017, in response to a release or a substantial threat of a release of
hazardous substances at or from the Site, EPA entered into an ASAOC with Centel, Black Hills,
and NPPD for the performance of a remedial investigation (“RI”) and feasibility study (“FS”) in
accordance with 40 C.F.R. § 300.430. Centel completed a RI for the Site on December 15, 2020.
11.
In 2020, EPA divided the Site into two Operable Units: Operable Unit 1 (“OU
1”), consisting of source materials (remaining soil contamination and DNAPL) and Operable
Unit 2 (“OU 2”), consisting of sitewide groundwater. Remedial actions will occur in a phased
manner: the OU 1 remedial action will be conducted to address the source materials prior to
evaluating remedial alternatives to address the OU 2 sitewide groundwater.
12.
Centel completed a FS for OU 1 on March 10, 2022. In accordance with
section 117 of CERCLA and 40 C.F.R § 300.430(f), EPA published notice of the completion of
the FS and of the proposed plan for remedial action for OU 1 on April 22, 2022, in a major local
newspaper of general circulation. EPA provided an opportunity for written and oral comments
from the public on the proposed plan for remedial action. A copy of the transcript of the public
meeting and comments received are available to the public as part of the administrative record
upon which the Division Director of the Superfund and Emergency Management Division, EPA
Region 7, based the selection of the response action.
13.
EPA selected a remedial action to be implemented at OU 1, which is embodied in
a final Record of Decision for OU 1, executed on September 26, 2022 (“Record of Decision”).
The Record of Decision includes a summary of responses to the public comments. Notice of the
final plan was published in accordance with section 117(b) of CERCLA.
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14.
Based on the information currently available, EPA has determined that the Work
will be properly and promptly conducted by Settling Defendants if conducted in accordance with
this Decree.
15.
The Parties recognize, and the Court by entering this Decree finds, that this
Decree has been negotiated by the Parties in good faith, that implementation of this Decree will
expedite the cleanup of the Site and will avoid prolonged and complicated litigation between the
Parties, and that this Decree is fair, reasonable, in the public interest, and consistent with
CERCLA.
NOW, THEREFORE, it is hereby ORDERED and DECREED as follows:
II.
JURISDICTION AND VENUE
16.
This Court has jurisdiction over the subject matter of this action under 28 U.S.C.
§§ 1331 and 1345, and sections 106, 107 and 113(b) of CERCLA, and personal jurisdiction over
the Parties. Venue lies in this District under section 113(b) of CERCLA and 28 U.S.C.
§§ 1391(b), and 1395(a), because the Site is located in this judicial district. This Court retains
jurisdiction over the subject matter of this action and over the Parties for the purpose of resolving
disputes arising under this Decree, entering orders modifying this Decree, or effectuating or
enforcing compliance with this Decree. Settling Defendants may not challenge the terms of this
Decree or this Court’s jurisdiction to enter and enforce this Decree.
III.
PARTIES BOUND
17.
This Decree is binding upon the United States and upon Settling Defendants and
their successors. Unless the United States otherwise consents, (a) any change in ownership or
corporate or other legal status of any Settling Defendant, including any transfer of assets, or
(b) any Transfer of the Site or any portion thereof, does not alter any of Settling Defendants’
obligations under this Decree. Settling Defendants’ responsibilities under this Decree cannot be
assigned except under a modification executed in accordance with ¶ 79.
18.
In any action to enforce this Decree, Settling Defendants may not raise as a
defense the failure of any of their officers, directors, employees, agents, contractors,
subcontractors, or any person representing Settling Defendants to take any action necessary to
comply with this Decree. Settling Defendants shall provide notice of this Decree to each person
representing Settling Defendants with respect to the Site or the Work. Settling Defendants shall
provide notice of this Decree to each contractor performing any Work and shall ensure that
notice of the Decree is provided to each subcontractor performing any Work.
IV.
DEFINITIONS
19.
Subject to the next sentence, terms used in this Decree that are defined in
CERCLA or the regulations promulgated under CERCLA have the meanings assigned to them in
CERCLA and the regulations promulgated under CERCLA. Whenever the terms set forth below
are used in this Decree, the following definitions apply:
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“CERCLA” means the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §§ 9601-9675.
“Consent Decree” or “Decree” means this consent decree, all appendixes attached hereto
(listed in Section XIX), and all deliverables incorporated into the Decree under ¶ 7.6 of the
SOW. If there is a conflict between a provision in Sections I through XXIV and a provision in
any appendix or deliverable, the provision in Sections I through XXIV controls.
“Day” or “day” means a calendar day. In computing any period under this Decree, the
day of the event that triggers the period is not counted and, where the last day is not a working
day, the period runs until the close of business of the next working day. “Working day” means
any day other than a Saturday, Sunday, or federal or State holiday.
“DOJ” means the United States Department of Justice.
“Effective Date” means the date upon which the Court’s approval of this Decree is
recorded on its docket.
“EPA” means the United States Environmental Protection Agency.
“Fund” means the Hazardous Substance Superfund established under section 9507 of the
Internal Revenue Code, 26 I.R.C. § 9507.
“Future Response Costs” means all costs (including direct, indirect, payroll, contractor,
travel, and laboratory costs) that the United States: (a) pays between January 31, 2023, and the
Effective Date; and (b) pays after the Effective Date in implementing, overseeing, or enforcing
this Decree, including: (i) in developing, reviewing and approving deliverables generated under
this Decree; (ii) in overseeing Settling Defendants’ performance of the Work; (iii) in assisting or
taking action to obtain access or use restrictions under ¶ 27.e; (iv) in securing, implementing,
monitoring, maintaining, or enforcing Institutional Controls, including any compensation paid;
(v) in taking action under ¶ 36 (Access to Financial Assurance); (vi) in taking response action
described in ¶ 63 because of Settling Defendants’ failure to take emergency action under ¶ 5.4 of
the SOW; (vii) in implementing a Work Takeover under ¶ 26; (viii) in implementing community
involvement activities including the cost of any technical assistance grant provided under
section 117(e) of CERCLA; (ix) in enforcing this Decree, including all costs paid under
Section XII (Dispute Resolution) and all litigation costs; and (x) in conducting periodic reviews
in accordance with section 121(c) of CERCLA. Future Response Costs also includes all Interest
accrued after January 31, 2023, on EPA’s unreimbursed costs under section 107(a) of CERCLA.
“Including” or “including” means “including but not limited to.”
“Institutional Controls” means Proprietary Controls (i.e., easements or covenants running
with the land that (i) limit land, water, or other resource use, provide access rights, or both and
(ii) are created under common law or statutory law by an instrument that is recorded, or for
which notice is recorded, in the appropriate land records office) and state or local laws,
regulations, ordinances, zoning restrictions, or other governmental controls or notices that:
(a) limit land, water, or other resource use to minimize the potential for human exposure to
Waste Material at or in connection with the Site; (b) limit land, water, or other resource use to
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implement, ensure noninterference with, or ensure the protectiveness of the Remedial Action;
(c) provide information intended to modify or guide human behavior at or in connection with the
Site; or (d) any combination thereof.
“Interest” means interest at the rate specified for interest on investments of the Fund, as
provided under section 107(a) of CERCLA, compounded annually on October 1 of each year.
The applicable rate of interest will 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. As of the date of lodging of this Decree,
rates are available online at https://www.epa.gov/superfund/superfund-interest-rates.
“National Contingency Plan” or “NCP” means the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated under section 105 of CERCLA, codified at
40 C.F.R. part 300, and any amendments thereto.
“Owner Settling Defendants” means the following Settling Defendants who own or
control all or a portion of the Site: Nebraska Public Power District and Black Hills Nebraska
Gas, LLC (d/b/a Black Hills Energy).
“Paragraph” or “¶” means a portion of this Decree identified by an Arabic numeral or an
upper- or lower-case letter.
“Parties” means the United States and Settling Defendants.
“Performance Standards” means the cleanup levels and other measures of achievement of
the remedial action objectives, as set forth in the Record of Decision.
“Plaintiff” means the United States.
“RCRA” means the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992k, (also known as
the Resource Conservation and Recovery Act).
“Record of Decision” means the EPA decision document that memorializes the selection
of the remedial action relating to the Operable Unit 1 at the Site signed on September 26, 2022,
by the Division Director of the Superfund and Emergency Management Division, EPA Region 7,
and all attachments thereto. The Record of Decision is attached as Appendix A.
“Remedial Action” means the remedial action selected in the Record of Decision.
“Remedial Design” means those activities to be undertaken by Settling Defendants to
develop plans and specifications for implementing the Remedial Action as set forth in the SOW.
“Scope of the Remedy” means the scope of the remedy set forth in ¶ 1.3 of the SOW.
“Section” means a portion of this Decree identified by a Roman numeral.
“Settling Defendants” means the Brightspeed Kansas Holdings, LLC, Black Hills
Nebraska Gas, LLC (d/b/a Black Hills Energy), and Nebraska Public Power District. As used in
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this Decree, this definition means all settling defendants, collectively, and each settling
defendant, individually.
“Site” means the Iowa-Nebraska Light & Power Company Superfund Site, located west
of 7 Street between Norfolk and Madison Avenues in Norfolk, Madison County, Nebraska, and
depicted generally on the map attached as Appendix C.
th
“State” means the State Nebraska.
“Statement of Work” or “SOW” means the document attached as Appendix B, which
describes the activities Settling Defendants must perform to implement and maintain the
effectiveness of the Remedial Action.
“Transfer” means to sell, assign, convey, lease, mortgage, or grant a security interest in,
or where used as a noun, a sale, assignment, conveyance, or other disposition of any interest by
operation of law or otherwise.
“United States” means the United States of America and each department, agency, and
instrumentality of the United States, including EPA.
“Waste Material” means (a) any “hazardous substance” under Section 101(14) of
CERCLA; (b) any pollutant or contaminant under section 101(33) of CERCLA; (c) any “solid
waste” under section 1004(27) of RCRA; and (d) any “hazardous material” under Neb. Rev. St. §
81-1567(2).
“Work” means all obligations of Settling Defendants under Sections VI (Performance of
the Work) through IX (Indemnification and Insurance).
“Work Settling Defendant” means Brightspeed Kansas Holdings, LLC.
“Work Takeover” means EPA’s assumption of the performance of any of the Work in
accordance with ¶ 26.
V.
OBJECTIVES
20.
The objectives of the Parties in entering into this Decree are to protect public
health, welfare, and the environment through the implementation and maintenance of a response
action at the Site by Settling Defendants, to pay Future Response Costs of Plaintiff, and to
resolve and settle the claims of Plaintiff against Settling Defendants as provided in this Decree.
VI.
PERFORMANCE OF THE WORK
21.
Consistent with ¶ 23 of this Decree, Settling Defendants shall finance, develop,
implement, operate, maintain, and monitor the effectiveness of the Remedial Action all in
accordance with the SOW, any modified SOW and all EPA-approved, conditionally approved, or
modified deliverables as required by the SOW or modified SOW.
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22.
Nothing in this Decree and no EPA approval of any deliverable required under
this Decree constitutes a warranty or representation by EPA that completion of the Work will
achieve the Performance Standards.
23.
Settling Defendants’ obligations to finance and perform the Work and to pay
amounts due under this Decree are joint and several. In the event of the insolvency of any
Settling Defendant or if any Settling Defendant cannot or will not fulfill its obligations under this
Decree, the other Settling Defendants remain jointly and severally liable for satisfying all the
requirements of this Decree, including, but not limited to, completing any Work not satisfactorily
completed by Work Settling Defendant. In the event Work Settling Defendant becomes insolvent
or fails to complete the Work as required by this Decree and the attached SOW, Owner Settling
Defendants are jointly and severally liable to complete the Work and shall be responsible for
maintaining financial assurance, maintaining insurance, and making any payments, including
payments for stipulated penalties, that are or become due under this Decree.
24.
Modifications to the Remedial Action and Further Response Actions
a.
Nothing in this Decree limits EPA’s authority to modify the Remedial Action or
to select further response actions for the Site in accordance with the requirements of CERCLA
and the NCP. Nothing in this Decree limits Settling Defendants’ rights, under sections 113(k)(2)
or 117 of CERCLA, to comment on any modified or further response actions proposed by EPA.
b.
If EPA modifies the Remedial Action in order to achieve or maintain the
Performance Standards, or both, or to carry out and maintain the effectiveness of the Remedial
Action, and such modification is consistent with the Scope of the Remedy, then Work Settling
Defendant shall implement the modification as provided in ¶ 24.c.
c.
Upon receipt of notice from EPA that it has modified the Remedial Action as
provided in ¶ 24.b and requesting that Work Settling Defendant implement the modified
Remedial Action, Work Settling Defendant shall implement the modification, subject to their
right to initiate dispute resolution under Section XII within 30 days after receipt of EPA’s notice.
Work Settling Defendant shall modify the SOW, or related work plans, or both in accordance
with the Remedial Action modification or, if Work Settling Defendant invokes dispute
resolution, in accordance with the final resolution of the dispute. The Remedial Action
modification, the approved modified SOW, and any related work plans will be deemed to be
incorporated into and enforceable under this Decree.
d.
Notwithstanding any other provision in ¶ 24, any modification to implement an
amendment to the Record of Decision that “fundamentally alters the basic features” of the
Remedial Action within the meaning of 40 C.F.R. § 300.435(c)(2)(ii) shall be considered a
material modification under, and may only be implemented in accordance with, ¶ 79.
25.
Compliance with Applicable Law. Nothing in this Decree affects Settling
Defendants’ obligations to comply with all applicable federal and state laws and regulations.
Settling Defendants must also comply with all applicable or relevant and appropriate
requirements of all federal and state environmental laws as set forth in the Record of Decision
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and the SOW. The activities conducted in accordance with this Decree, if approved by EPA, will
be deemed to be consistent with the NCP as provided under section 300.700(c)(3)(ii).
26.
Work Takeover
a.
If EPA determines that Work Settling Defendant (i) has ceased to perform any
of the Work required under this Section; (ii) is seriously or repeatedly deficient or late in
performing the Work required under this Section; or (iii) is performing the Work required under
this Section in a manner that may cause an endangerment to human health or the environment,
EPA may issue a notice of Work Takeover to Work Settling Defendant, including a description
of the grounds for the notice and a period of time (“Remedy Period”) within which Work
Settling Defendant must remedy the circumstances giving rise to the notice. The Remedy Period
will be 20 days, unless EPA determines in its unreviewable discretion that there may be an
endangerment, in which case the Remedy Period will be ten (10) days.
b.
If, by the end of the Remedy Period, Work Settling Defendant does not remedy
to EPA’s satisfaction the circumstances giving rise to the notice of Work Takeover, EPA may
notify Settling Defendants and, as it deems necessary, commence a Work Takeover.
c.
EPA may conduct the Work Takeover during the pendency of any dispute under
Section XII but shall terminate the Work Takeover if and when: (i) Work Settling Defendant
remedies, to EPA’s satisfaction, the circumstances giving rise to the notice of Work Takeover; or
(ii) upon the issuance of a final determination under Section XII (Dispute Resolution) that EPA
is required to terminate the Work Takeover.
VII.
27.
PROPERTY REQUIREMENTS
Agreements Regarding Access and Noninterference
a.
As used in this Section, “Affected Property” means any real property, including
the Site, where EPA determines, at any time, that access; land, water, or other resource use
restrictions; Institutional Controls; or any combination thereof, are needed to implement the
Remedial Action.
b.
Work Settling Defendant shall use best efforts to secure from the owner(s),
other than an Owner Settling Defendant, of all Affected Property, an agreement, enforceable by
Work Settling Defendant and by Plaintiff, requiring such owner to provide Plaintiff and Work
Settling Defendant, and their respective representatives, contractors, and subcontractors with
access at all reasonable times to such owner’s property to conduct any activity regarding the
Decree, including the following:
(1)
implementing the Work and overseeing compliance with the Decree;
(2)
conducting investigations of contamination at or near the Site;
(3)
assessing the need for, planning, or implementing additional response
actions at or near the Site;
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(4)
determining whether the Site is being used in a manner that is prohibited
or restricted, or that may need to be prohibited or restricted under the
Decree; and
(5)
implementing, monitoring, maintaining, reporting on, and enforcing any
land, water, or other resource use restrictions.
c.
Further, each agreement required under ¶ 27.b must commit the owner to refrain
from using its property in any manner that EPA determines will pose an unacceptable risk to
human health or to the environment as a result of exposure to Waste Material, or will interfere
with or adversely affect the implementation, integrity, or protectiveness of the Remedial Action.
d.
As used in this Section, “best efforts” means the efforts that a reasonable person
in the position of Work Settling Defendant would use to achieve the goal in a timely manner,
including the cost of employing professional assistance and the payment of reasonable sums of
money to secure access and/or use restriction agreements.
e.
Work Settling Defendant shall provide to EPA a copy of each agreement
required under ¶ 27.b. If Work Settling Defendant cannot accomplish what is required through
best efforts in a timely manner, they shall notify EPA, and include a description of the steps
taken to achieve the requirements. If the United States deems it appropriate, it may assist Work
Settling Defendant, or take independent action, to obtain such access or use restrictions.
28.
Access and Noninterference by Owner Settling Defendant. The Owner Settling
Defendant shall: (a) provide Plaintiff and Work Settling Defendant, and their representatives,
contractors, and subcontractors with access at all reasonable times to the Site to conduct any
activity regarding the Decree, including those listed in ¶ 27.b; and (b) refrain from using the Site
in any manner that EPA determines will pose an unacceptable risk to human health or to the
environment because of exposure to Waste Material, or will interfere with or adversely affect the
implementation, integrity, or protectiveness of the Remedial Action.
29.
If EPA determines in a decision document prepared in accordance with the NCP
that Institutional Controls in the form of state or local laws, regulations, ordinances, zoning
restrictions, or other governmental controls or notices are appropriate, Work Settling Defendant
shall cooperate with EPA’s efforts to secure and ensure compliance with such Institutional
Controls.
30.
Notwithstanding any provision of the Decree, EPA and the State retain all of their
access authorities and rights, as well as all of its rights to require land, water, or other resource
use restrictions and Institutional Controls, including related enforcement authorities, under
CERCLA, RCRA, and any other applicable statute or regulations.
VIII. FINANCIAL ASSURANCE
31.
To ensure completion of the Work required under Section VI, Work Settling
Defendant shall secure financial assurance, initially in the amount of $7,900,000 (“Estimated
Cost of the Work”), for the benefit of EPA. The financial assurance must be one or more of the
mechanisms listed below, in a form substantially identical to the relevant sample documents
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available from EPA, and be satisfactory to EPA. As of the date of lodging of this Decree, the
sample documents can be found under the “Financial Assurance - Settlements” category on the
Cleanup Enforcement Model Language and Sample Documents Database at
https://cfpub.epa.gov/compliance/models/. Work Settling Defendant may use multiple
mechanisms if they are limited to surety bonds guaranteeing payment, letters of credit, trust
funds, insurance policies, or some combination thereof. The following are acceptable
mechanisms:
a.
a surety bond guaranteeing payment, performance of the Work, or both, that is
issued by a surety company among those listed as acceptable sureties on federal bonds as set
forth in Circular 570 of the U.S. Department of the Treasury;
b.
an irrevocable letter of credit, payable to EPA or at the direction of EPA, that is
issued by an entity that has the authority to issue letters of credit and whose letter-of-credit
operations are regulated and examined by a federal or state agency;
c.
a trust fund established for the benefit of EPA that is administered by a trustee
that has the authority to act as a trustee and whose trust operations are regulated and examined
by a federal or state agency;
d.
a policy of insurance that provides EPA with acceptable rights as a beneficiary
thereof and that is issued by an insurance carrier that has the authority to issue insurance policies
in the applicable jurisdiction(s) and whose insurance operations are regulated and examined by a
federal or state agency;
e.
a demonstration by Work Settling Defendant that it meets the relevant test
criteria of ¶ 32, accompanied by a standby funding commitment that requires Work Settling
Defendant to pay funds to or at the direction of EPA, up to the amount financially assured
through the use of this demonstration in the event of a Work Takeover; or
f.
a guarantee to fund or perform the Work executed in favor of EPA by a
company: (1) that is a direct or indirect parent company of Work Settling Defendant or has a
“substantial business relationship” (as defined in 40 C.F.R. § 264.141(h)) with Work Settling
Defendant; and (2) demonstrates to EPA’s satisfaction that it meets the financial test criteria of
¶ 32.
32.
If Work Settling Defendant seeks to provide financial assurance by means of a
demonstration or guarantee under ¶ 31.e or 31.f it must, within 30 days after the Effective Date:
a.
demonstrate that:
(1)
Work Settling Defendant or its guarantor has:
i.
two of the following three ratios: a ratio of total liabilities to net worth
less than 2.0; a ratio of the sum of net income plus depreciation,
depletion, and amortization to total liabilities greater than 0.1; and a ratio
of current assets to current liabilities greater than 1.5; and
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ii.
net working capital and tangible net worth each at least six times the
sum of the Estimated Cost of the Work and the amounts, if any, of other
federal, state, or tribal environmental obligations financially assured
through the use of a financial test or guarantee; and
iii.
tangible net worth of at least $10 million; and
iv.
assets located in the United States amounting to at least 90 percent of
total assets or at least six times the sum of the Estimated Cost of the
Work and the amounts, if any, of other federal, state, or tribal
environmental obligations financially assured through the use of a
financial test or guarantee; or
(2)
Work Settling Defendant or its guarantor has:
i.
a current rating for its senior unsecured debt of AAA, AA, A, or BBB as
issued by Standard and Poor’s or Aaa, Aa, A or Baa as issued by
Moody’s; and
ii.
tangible net worth at least six times the sum of the Estimated Cost of the
Work and the amounts, if any, of other federal, state, or tribal
environmental obligations financially assured through the use of a
financial test or guarantee; and
iii.
tangible net worth of at least $10 million; and
iv.
assets located in the United States amounting to at least 90 percent of
total assets or at least six times the sum of the Estimated Cost of the
Work and the amounts, if any, of other federal, state, or tribal
environmental obligations financially assured through the use of a
financial test or guarantee; and
b.
submit to EPA for Work Settling Defendant or its guarantor: (1) a copy of an
independent certified public accountant’s report of the entity’s financial statements for the latest
completed fiscal year, which must not express an adverse opinion or disclaimer of opinion; and
(2) a letter from its chief financial officer and a report from an independent certified public
accountant substantially identical to the sample letter and reports available from EPA. As of the
date of lodging of this Decree, a sample letter and report is available under the “Financial
Assurance - Settlements” subject list category on the Cleanup Enforcement Model Language and
Sample Documents Database at https://cfpub.epa.gov/compliance/models/.
33.
If Work Settling Defendant is providing financial assurance by means of a
demonstration or guarantee under ¶ 31.e or 31.f it must also:
a.
annually resubmit the documents described in ¶ 32.b within 90 days after the
close of Work Settling Defendant’s or its guarantor's fiscal year;
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b.
notify EPA within 30 days after Work Settling Defendant or its guarantor
determines that it no longer satisfies the relevant financial test criteria and requirements set forth
in this Section; and
c.
provide to EPA, within 30 days of EPA’s request, reports of the financial
condition of Work Settling Defendant or its guarantor in addition to those specified in ¶ 32.b;
EPA may make such a request at any time based on a belief that Work Settling Defendant or its
guarantor may no longer meet the financial test requirements of this Section.
34.
Work Settling Defendant shall, within 30 days after the Effective Date, seek
EPA’s approval of the form of Work Settling Defendant’s financial assurance. Within 30 days
after such approval, Work Settling Defendant shall secure all executed or otherwise finalized
mechanisms or other documents consistent with the EPA-approved form of financial assurance
and shall submit such mechanisms and documents to the Regional Financial Management
Officer, to DOJ, and to EPA.
35.
Work Settling Defendant shall diligently monitor the adequacy of the financial
assurance. If Work Settling Defendant becomes aware of any information indicating that the
financial assurance provided under this Section is inadequate or otherwise no longer satisfies the
requirements of this Section, Work Settling Defendant shall notify EPA of such information
within seven days. If EPA determines that the financial assurance provided under this Section is
inadequate or otherwise no longer satisfies the requirements of this Section, EPA will notify
Work Settling Defendant of such determination. Work Settling Defendant shall, within 30 days
after notifying EPA or receiving notice from EPA under this Paragraph, secure and submit to
EPA for approval a proposal for a revised or alternative financial assurance mechanism that
satisfies the requirements of this Section. EPA may extend this deadline for such time as is
reasonably necessary for Work Settling Defendant, in the exercise of due diligence, to secure and
submit to EPA a proposal for a revised or alternative financial assurance mechanism, not to
exceed 60 days. Work Settling Defendant shall follow the procedures of ¶ 37 in seeking approval
of, and submitting documentation for, the revised or alternative financial assurance mechanism.
Work Settling Defendant’s inability to secure financial assurance in accordance with this Section
does not excuse performance of any other requirement of this Decree.
36.
Access to Financial Assurance
a.
If EPA issues a notice of a Work Takeover under ¶ 26.b, then, in accordance
with any applicable financial assurance mechanism, including the related standby funding
commitment, EPA may require that any funds guaranteed be paid in accordance with ¶ 36.d.
b.
If EPA is notified that the issuer of a financial assurance mechanism intends to
cancel the mechanism, and Work Settling Defendant fails to provide an alternative financial
assurance mechanism in accordance with this Section at least 30 days prior to the cancellation
date, the funds guaranteed under such mechanism must be paid prior to cancellation in
accordance with ¶ 36.d.
c.
If, upon issuance of a notice of a Work Takeover under ¶ 26.b, either: (1) EPA
is unable for any reason to promptly secure the resources guaranteed under any applicable
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financial assurance mechanism including the related standby funding commitment, whether in
cash or in kind, to continue and complete the Work; or (2) the financial assurance is a
demonstration or guarantee under ¶ 31.e or 31.f, then EPA is entitled to demand an amount, as
determined by EPA, sufficient to cover the cost of the remaining Work to be performed. Work
Settling Defendant shall, within 30 days after such demand, pay the amount demanded as
directed by EPA.
d.
Any amounts required to be paid under this ¶ 36 must be, as directed by EPA:
(i) paid to EPA in order to facilitate the completion of the Work by EPA or by another person; or
(ii) deposited into an interest-bearing account, established at a duly chartered bank or trust
company that is insured by the FDIC, in order to facilitate the completion of the Work by another
person. If payment is made to EPA, EPA may deposit the payment into the Fund or into the
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 Fund.
37.
Modification of Amount, Form, or Terms of Financial Assurance. Beginning
after the first anniversary of the Effective Date, and no more than once per calendar year, Work
Settling Defendant may submit a request to change the form, terms, or amount of the financial
assurance mechanism. Any such request must be submitted to EPA in accordance with ¶ 34, and
must include an estimate of the cost of the remaining Work, an explanation of the bases for the
cost calculation, and a description of the proposed changes, if any, to the form or terms of the
financial assurance. EPA will notify Work Settling Defendant of its decision regarding the
request. Work Settling Defendant may initiate dispute resolution under Section XII regarding
EPA’s decision within 30 days after receipt of the decision. Work Settling Defendant may
modify the form, terms, or amount of the financial assurance mechanism only: (a) in accordance
with EPA’s approval; or (b) in accordance with any resolution of a dispute under Section XII.
Work Settling Defendant shall submit to EPA, within 30 days after receipt of EPA’s approval or
consistent with the terms of the resolution of the dispute, documentation of the change to the
form, terms, or amount of the financial assurance instrument.
38.
Release, Cancellation, or Discontinuation of Financial Assurance. Settling
Defendants may release, cancel, or discontinue any financial assurance provided under this
Section only: (a) if EPA issues a Certification of Work Completion under ¶ 5.7 of the SOW;
(b) in accordance with EPA’s approval of such release, cancellation, or discontinuation; or (c) if
there is a dispute regarding the release, cancellation or discontinuance of any financial assurance,
in accordance with the agreement, final administrative decision, or final judicial decision
resolving such dispute under Section XII.
IX.
39.
INDEMNIFICATION AND INSURANCE
Indemnification
a.
Plaintiff does not assume any liability by entering into this Decree or by virtue
of any designation of Settling Defendants as EPA’s authorized representative under
section 104(e)(1) of CERCLA. Settling Defendants shall indemnify and save and hold harmless
Plaintiff and its officials, agents, employees, contractors, subcontractors, and representatives for
or from any claims or causes of action arising from, or on account of, negligent or other
15
wrongful acts or omissions of Settling Defendants, their officers, directors, employees, agents,
contractors, subcontractors, and any persons acting on Settling Defendants’ behalf or under their
control, in carrying out activities under this Decree, including any claims arising from any
designation of Settling Defendants as EPA’s authorized representatives under section 104(e)(1)
of CERCLA. Further, Settling Defendants agree to pay Plaintiff all costs it incurs including
attorneys’ fees and other expenses of litigation and settlement arising from, or on account of,
claims made against Plaintiff based on negligent or other wrongful acts or omissions of Settling
Defendants, their officers, directors, employees, agents, contractors, subcontractors, and any
persons acting on their behalf or under their control in carrying out activities under with this
Decree. Plaintiff may not be held out as a party to any contract entered into by or on behalf of
Settling Defendants in carrying out activities under this Decree. The Settling Defendants and any
such contractor may not be considered an agent of Plaintiff.
b.
Plaintiff shall give Settling Defendants notice of any claim for which Plaintiff
plans to seek indemnification in accordance with this ¶ 39, and shall consult with Settling
Defendants prior to settling such claim.
40.
Settling Defendants covenant not to sue and shall not assert any claim or cause of
action against Plaintiff for damages or reimbursement or for set-off of any payments made or to
be made to Plaintiff, arising from or on account of any contract, agreement, or arrangement
between any one or more of Settling Defendants and any person for performance of Work or
other activities on or relating to the Site, including claims on account of construction delays. In
addition, Settling Defendants shall indemnify and save and hold Plaintiff harmless with respect
to any claims for damages or reimbursement arising from or on account of any contract,
agreement, or arrangement between any one or more of Settling Defendants and any person for
performance of work at or relating to the Site, including claims on account of construction
delays.
41.
Insurance. Work Settling Defendant shall secure, by no later than 15 days before
commencing any on-site Work, the following insurance: (a) commercial general liability
insurance with limits of liability of $1 million per occurrence; (b) automobile liability insurance
with limits of liability of $1 million per accident; and (c) umbrella liability insurance with limits
of liability of $5 million in excess of the required commercial general liability and automobile
liability limits. The insurance policy must name Plaintiff as an additional insured with respect to
all liability arising out of the activities performed by or on behalf of Work Settling Defendant
under this Decree. Work Settling Defendant shall maintain this insurance until the first
anniversary after issuance of EPA’s Certification of Remedial Action Completion under ¶ 5.6 of
the SOW. In addition, for the duration of this Decree, Work Settling Defendant shall satisfy, or
shall ensure that their contractors or subcontractors satisfy, all applicable laws and regulations
regarding the provision of worker’s compensation insurance for all persons performing the Work
on behalf of Work Settling Defendant in furtherance of this Decree. Prior to commencement of
the Work, Work Settling Defendant shall provide to EPA certificates of such insurance and a
copy of each insurance policy. Work Settling Defendant shall resubmit such certificates and
copies of policies each year on the anniversary of the Effective Date. If Work Settling Defendant
demonstrates by evidence satisfactory to EPA that any contractor or subcontractor maintains
insurance equivalent to that described above, or insurance covering the same risks but in a lesser
amount, then, with respect to that contractor or subcontractor, Work Settling Defendant need
16
provide only that portion of the insurance described above that is not maintained by the
contractor or subcontractor. Work Settling Defendant shall ensure that all submittals to EPA
under this Paragraph identify the Iowa-Nebraska Light & Power Company Superfund Site,
Norfolk, Nebraska and the civil action number of this case.
X.
42.
PAYMENTS FOR RESPONSE COSTS
Payments by Settling Defendants for Future Response Costs
a.
Periodic Bills. On a periodic basis, EPA will send Settling Defendants a bill for
Future Response Costs, including a cost summary listing direct and indirect costs paid by EPA,
its contractors, subcontractors, and DOJ. Settling Defendants may initiate a dispute under
Section XII regarding a Future Response Cost billing, but only if the dispute relates to one or
more of the following issues: (i) whether EPA has made an arithmetical error; (ii) whether EPA
has included a cost item that is not within the definition of Future Response Costs; or
(iii) whether EPA has paid excess costs as a direct result of an EPA action that was inconsistent
with a specific provision or provisions of the NCP. Settling Defendants must specify in the
Notice of Dispute the contested costs and the basis for the objection.
b.
Payment of Bill. Subject to ¶ 23, Work Settling Defendant shall pay the bill, or
if any entity has initiated dispute resolution, the uncontested portion of the bill, if any, within
30 days after receipt of the bill. Subject to ¶ 23, Work Settling Defendant shall pay the contested
portion of the bill determined to be owed, if any, within 30 days after the determination
regarding the dispute. Each payment for: (i) the uncontested bill or portion of bill, if late, and
(ii) the contested portion of the bill determined to be owed, if any, must include an additional
amount for Interest accrued from the date of receipt of the bill through the date of payment.
Subject to ¶ 23, Work Settling Defendant shall make payment at https://www.pay.gov using the
“EPA Miscellaneous Payments Cincinnati Finance Center” link, and including references to the
Site/Spill ID and DJ numbers listed in ¶ 77 and the purpose of the payment. Subject to ¶ 23,
Work Settling Defendant shall send notices of this payment to DOJ and EPA.
43.
Deposit of Payments. EPA may, in its unreviewable discretion, deposit the
amounts paid under ¶ 42.b in the Fund, in the Special Account, or both. EPA may, in its
unreviewable discretion, retain and use any amounts deposited in the Special Account to conduct
or finance response actions at or in connection with the Site, or transfer those amounts to the
Fund.
XI.
FORCE MAJEURE
44.
“Force majeure,” for purposes of this Decree, means any event arising from
causes beyond the control of Settling Defendants, of any entity controlled by Settling
Defendants, or of Settling Defendants’ contractors that delays or prevents the performance of any
obligation under this Decree despite Settling Defendants’ best efforts to fulfill the obligation.
Given the need to protect public health and welfare and the environment, the requirement that
Settling Defendants exercise “best efforts to fulfill the obligation” includes using best efforts to
anticipate any potential force majeure and best efforts to address the effects of any potential
force majeure (a) as it is occurring and (b) following the potential force majeure such that the
17
delay and any adverse effects of the delay are minimized to the greatest extent possible. “Force
majeure” does not include financial inability to complete the Work or a failure to achieve the
Performance Standards.
45.
If any event occurs for which Settling Defendants will or may claim a force
majeure, Settling Defendants shall notify EPA’s Project Coordinator by email. The deadline for
the initial notice is 5 days after the date Settling Defendants first knew or should have known
that the event would likely delay performance. Settling Defendants shall be deemed to know of
any circumstance of which any contractor of, subcontractor of, or entity controlled by Settling
Defendants knew or should have known. Within 5 days thereafter, Settling Defendants shall send
a further notice to EPA that includes: (i) a description of the event and its effect on Settling
Defendants’ completion of the requirements of the Decree; (ii) a description of all actions taken
or to be taken to prevent or minimize the adverse effects or delay; (iii) the proposed extension of
time for Settling Defendants to complete the requirements of the Decree; (iv) a statement as to
whether, in the opinion of Settling Defendants, such event may cause or contribute to an
endangerment to public health or welfare, or the environment; and (v) all available proof
supporting their claim of force majeure. Failure to comply with the notice requirements herein
regarding an event precludes Settling Defendants from asserting any claim of force majeure
regarding that event, provided, however, that if EPA, despite late or incomplete notice, is able to
assess to its satisfaction whether the event is a force majeure under ¶ 44 and whether Settling
Defendants have exercised their best efforts under ¶ 44, EPA may, in its unreviewable discretion,
excuse in writing Settling Defendants’ failure to submit timely or complete notices under this
Paragraph.
46.
EPA will notify Settling Defendants of its determination whether Settling
Defendants are entitled to relief under ¶ 44, and, if so, the duration of the extension of time for
performance of the obligations affected by the force majeure. An extension of the time for
performance of the obligations affected by the force majeure shall not, of itself, extend the time
for performance of any other obligation. Settling Defendants may initiate dispute resolution
under Section XII regarding EPA’s determination within 15 days after receipt of the
determination. In any such proceeding, Settling Defendants have the burden of proving that they
are entitled to relief under ¶ 44 and that their proposed extension was or will be warranted under
the circumstances.
47.
The failure by EPA to timely complete any activity under the Decree or the SOW
is not a violation of the Decree, provided, however, that if such failure prevents Settling
Defendants from timely completing a requirement of the Decree, Settling Defendants may seek
relief under this Section.
XII.
DISPUTE RESOLUTION
48.
Unless otherwise provided in this Decree, Settling Defendants must use the
dispute resolution procedures of this Section to resolve any dispute arising under this Decree.
Settling Defendants shall not initiate a dispute challenging the Record of Decision. The United
States may enforce any requirement of the Decree that is not the subject of a pending dispute
under this Section.
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49.
A dispute will be considered to have arisen when one or more parties sends a
written notice of dispute (“Notice of Dispute”). A notice is timely if sent within 30 days after
receipt of the EPA notice or determination giving rise to the dispute, or within 15 days in the
case of a force majeure determination. Disputes arising under this Decree must in the first
instance be the subject of informal negotiations between the parties to the dispute. The period for
informal negotiations may not exceed 20 days after the dispute arises, unless the parties to the
dispute otherwise agree. If the Parties cannot resolve the dispute by informal negotiations, the
position advanced by EPA is binding unless Settling Defendants initiate formal dispute
resolution under ¶ 50.
50.
Formal Dispute Resolution
a.
Statements of Position. Settling Defendants may initiate formal dispute
resolution by serving on the Plaintiff, within 20 days after the conclusion of informal dispute
resolution under ¶ 49, an initial Statement of Position regarding the matter in dispute. The
Plaintiff’s responsive Statement of Position is due within 20 days after receipt of the initial
Statement of Position. All Statements of Position must include supporting factual data, analysis,
opinion, and other documentation. A reply, if any, is due within 10 days after receipt of the
response. If appropriate, EPA may extend the deadlines for filing Statements of Position for up
to 45 days and may allow the submission of supplemental Statements of Position.
b.
Formal Decision. The Director of the Superfund & Emergency Management
Division, EPA Region 7, will issue a formal decision resolving the dispute (“Formal Decision”)
based on the statements of position and any replies and supplemental statements of position. The
Formal Decision is binding on Settling Defendants unless they timely seek judicial review under
¶ 51.
c.
Compilation of Administrative Record. EPA shall compile an administrative
record regarding the dispute, which must include all statements of position, replies, supplemental
statements of position, and the Formal Decision.
51.
Judicial Review
a.
Settling Defendants may obtain judicial review of the Formal Decision by
filing, within 20 days after receiving it, a motion with the Court and serving the motion on all
Parties. The motion must describe the matter in dispute and the relief requested. The parties to
the dispute shall brief the matter in accordance with local court rules.
b.
Review on the Administrative Record. Judicial review of disputes regarding
the following issues must be on the administrative record: (i) the adequacy or appropriateness of
deliverables required under the Decree; (ii) the adequacy of the performance of the Remedial
Action; (iii) whether a Work Takeover is warranted under ¶ 26; (iv) determinations about
financial assurance under Section VIII; (v) EPA’s selection of modified or further response
actions; (vi) any other items requiring EPA approval under the Decree; and (vii) any other
disputes that the Court determines should be reviewed on the administrative record. For all of
these disputes, Settling Defendants bear the burden of demonstrating that the Formal Decision
was arbitrary and capricious or otherwise not in accordance with law.
19
c.
Judicial review of any dispute not governed by ¶ 51.b shall be governed by
applicable principles of law.
52.
Escrow Account. For disputes regarding a Future Response Cost billing, Settling
Defendants shall: (a) establish, in a duly chartered bank or trust company, an interest-bearing
escrow account that is insured by the Federal Deposit Insurance Corporation (“FDIC”); (b) remit
to that escrow account funds equal to the amount of the contested Future Response Costs; and
(c) send to EPA copies of the correspondence and of the payment documentation (e.g., the
check) that established and funded the escrow account, including the name of the bank, the bank
account number, and a bank statement showing the initial balance in the account. EPA may, in
its unreviewable discretion, waive the requirement to establish the escrow account. Settling
Defendants shall cause the escrow agent to pay the amounts due to EPA under ¶ 42, if any, by
the deadline for such payment in ¶ 42. Settling Defendants are responsible for any balance due
under ¶ 42 after the payment by the escrow agent.
53.
The initiation of dispute resolution procedures under this Section does not extend,
postpone, or affect in any way any requirement of this Decree, except as EPA agrees, or as
determined by the Court. Stipulated penalties with respect to the disputed matter will continue to
accrue, but payment is stayed pending resolution of the dispute, as provided in ¶ 56.
XIII. STIPULATED PENALTIES
54.
Unless the noncompliance is excused under Section XI (Force Majeure), subject
to ¶ 23, Work Settling Defendant is liable to the United States for the following stipulated
penalties:
a.
for any failure: (i) to pay any amount due under Section X; (ii) to establish and
maintain financial assurance in accordance with Section VIII; (iii) to maintain insurance in
accordance with Paragraph 41; or (iv) to submit timely or adequate deliverables under Section 8
of the SOW:
Period of Noncompliance
1st through 14th day
15th through 30th day
31st day and beyond
Penalty Per Noncompliance Per Day
$500
$1,000
$3,000
b.
for any failure to submit timely or adequate deliverables required by this Decree
other than those specified in ¶ 54.a:
Period of Noncompliance
1st through 14th day
15th through 30th day
31st day and beyond
Penalty Per Noncompliance Per Day
$500
$800
$2,000
55.
Work Takeover Penalty. If EPA commences a Work Takeover, subject to ¶ 23,
Work Settling Defendant is liable for a stipulated penalty in the amount of $250,000. This
20
stipulated penalty is in addition to the remedy available to EPA under ¶ 36 (Access to Financial
Assurance) to fund the performance of the Work by EPA.
56.
Accrual of Penalties. Stipulated penalties accrue from the date performance is
due, or the day a noncompliance occurs, whichever is applicable, until the date the requirement is
completed or the final day of the correction of the noncompliance. Nothing in this Decree
prevents the simultaneous accrual of separate penalties for separate noncompliance with this
Decree. Stipulated penalties accrue regardless of whether Settling Defendants have been notified
of their noncompliance, and regardless of whether Settling Defendants have initiated dispute
resolution under Section XII, provided, however, that no penalties will accrue as follows:
a.
with respect to a submission that EPA subsequently determines is deficient
under ¶ 7.6 of the SOW, during the period, if any, beginning on the 31st day after EPA’s receipt
of such submission until the date that EPA notifies Settling Defendants of any deficiency;
b.
with respect to a matter that is the subject of dispute resolution under
Section XII, during the period, if any, beginning on the 21st day after the later of the date that
EPA’s Statement of Position is received or the date that the Settling Defendants’ reply thereto (if
any) is received until the date of the Formal Decision under ¶ 50.b; or
c.
with respect to a matter that is the subject of judicial review by the Court under
¶ 51, during the period, if any, beginning on the 31st day after the Court’s receipt of the final
submission regarding the dispute until the date that the Court issues a final decision regarding
such dispute.
57.
Demand and Payment of Stipulated Penalties. EPA may send Settling
Defendants a demand for stipulated penalties. The demand will include a description of the
noncompliance and will specify the amount of the stipulated penalties owed. Settling Defendants
may initiate dispute resolution under Section XII within 30 days after receipt of the demand.
Subject to ¶ 23, Work Settling Defendant shall pay the amount demanded or, if an entity has
initiated dispute resolution, the uncontested portion of the amount demanded, within 30 days
after receipt of the demand. Subject to ¶ 23, Work Settling Defendant shall pay the contested
portion of the penalties determined to be owed, if any, within 30 days after the resolution of the
dispute. Each payment for: (a) the uncontested penalty demand or uncontested portion, if late;
and (b) the contested portion of the penalty demand determined to be owed, if any, must include
an additional amount for Interest accrued from the date of receipt of the demand through the date
of payment. Subject to ¶ 23, Work Settling Defendant shall make payment at
https://www.pay.gov using the link for “EPA Miscellaneous Payments Cincinnati Finance
Center,” including references to the Site/Spill ID and DJ numbers listed in ¶ 77, and the purpose
of the payment. Subject to ¶ 23, Work Settling Defendants shall send a notice of this payment to
DOJ and EPA. The payment of stipulated penalties and Interest, if any, does not alter any
obligation by Settling Defendants under the Decree.
58.
Nothing in this Decree limits the authority of the United States: (a) to seek any
remedy otherwise provided by law for a failure to pay stipulated penalties or interest; or (b) to
seek any other remedies or sanctions available by virtue of noncompliance with this Decree or of
the statutes and regulations upon which it is based, including penalties under section 122(l) of
21
CERCLA, provided, however, that the United States may not seek civil penalties under
section 122(l) of CERCLA for any noncompliance for which a stipulated penalty is provided for
in this Decree, except in the case of a willful noncompliance with this Decree.
59.
Notwithstanding any other provision of this Section, the United States may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued under
this Decree.
XIV. COVENANTS BY PLAINTIFF
60.
Covenants for Settling Defendants. Subject to ¶¶ 61 and 62, the United States
covenants not to sue or to take administrative action against Settling Defendants under
sections 106 and 107(a) of CERCLA regarding the Work, and Future Response Costs.
61.
The covenants under ¶ 60: (a) take effect upon the Effective Date; (b) are
conditioned on the satisfactory performance by Settling Defendants of the requirements of this
Decree; (c) extend to the successors of each Settling Defendant but only to the extent that the
alleged liability of the successor of the Settling Defendant is based solely on its status as a
successor of the Settling Defendant; and (d) do not extend to any other person.
62.
General Reservations. Notwithstanding any other provision of this Decree, the
United States reserves, and this Decree is without prejudice to, all rights against Settling
Defendants regarding the following:
a.
liability for failure by Settling Defendants to meet a requirement of this Decree;
b.
liability arising from the past, present, or future disposal, release, or threat of
release of Waste Material outside of the Site;
c.
liability based on Settling Defendants’ ownership of the Site when such
ownership commences after Settling Defendants’ signature of this Decree;
d.
liability based on Settling Defendants’ operation of the Site when such
operation commences after Settling Defendants’ signature of this Decree and does not arise
solely from Settling Defendants’ performance of the Work;
e.
liability based on Settling Defendants’ transportation, treatment, storage, or
disposal, or arrangement for transportation, treatment, storage, or disposal of Waste Material at
or in connection with the Site, after signature of this Decree by Settling Defendants, other than as
provided in the Record of Decision, under this Decree, or ordered by EPA;
f.
liability for additional operable units at the Site or the final response action;
g.
liability, prior to achievement of Performance Standards, for additional response
actions that EPA determines are necessary to achieve and maintain Performance Standards or to
carry out and maintain the effectiveness of the Remedial Action, but that are not covered by
¶ 24.b; and
22
h.
criminal liability.
63.
Subject to ¶ 60, nothing in this Decree limits any authority of Plaintiff to take,
direct, or order all appropriate action to protect human health and the environment or to prevent,
abate, respond to, or minimize an actual or threatened release of Waste Material on, at, or from
the Site, or to request a Court to order such action.
XV.
64.
COVENANTS BY SETTLING DEFENDANTS
Covenants by Settling Defendants
a.
Subject to ¶ 65, Settling Defendants covenant not to sue and shall not assert any
claim or cause of action against the United States under CERCLA, section 7002(a) of RCRA, the
United States Constitution, the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act,
28 U.S.C. § 2412, the State Constitution, State law, or at common law regarding the Work, past
response actions relating to the Site, and Future Response Costs.
b.
Subject to ¶ 65, Settling Defendants covenant not to seek reimbursement from
the Fund through CERCLA or any other law for costs of the Work and past response actions
regarding the Site, and Future Response Costs.
65.
Settling Defendants’ Reservation. The covenants in ¶ 64 do not apply to any
claim or cause of action brought, or order issued, after the Effective Date by the United States to
the extent such claim, cause of action, or order is within the scope of a reservation under ¶¶ 62.a
through 62.g.
XVI. EFFECT OF SETTLEMENT; CONTRIBUTION
66.
The Parties agree and the Court finds that: (a) the complaint filed by the United
States in this action is a civil action within the meaning of section 113(f)(1) of CERCLA; (b) this
Decree constitutes a judicially approved settlement under which each Settling Defendant has, as
of the Effective Date, resolved its liability to the United States within the meaning of
sections 113(f)(2) and 113(f)(3)(B) of CERCLA; and (c) each Settling Defendant is entitled, as
of the Effective Date, to protection from contribution actions or claims as provided by
section 113(f)(2) of CERCLA, or as may be otherwise provided by law, for the “matters
addressed” in this Decree. The “matters addressed” in this Decree are the Work and Future
Response Costs, provided, however, that if the United States exercises rights under the
reservations in ¶¶ 62.a through 62.g, the “matters addressed” in this Decree will no longer
include those response costs or response actions that are within the scope of the exercised
reservation.
67.
Each Settling Defendant shall, with respect to any suit or claim brought by it for
matters related to this Decree, notify DOJ and EPA no later than 60 days prior to the initiation of
such suit or claim. Each Settling Defendant shall, with respect to any suit or claim brought
against it for matters related to this Decree, notify DOJ and EPA within 10 days after service of
the complaint on such Settling Defendant. In addition, each Settling Defendant shall notify DOJ
23
and EPA within 10 days after service or receipt of any Motion for Summary Judgment and
within 10 days after receipt of any order from a court setting a case for trial.
68.
Res Judicata and Other Defenses. In any subsequent administrative or judicial
proceeding initiated against any Settling Defendant by Plaintiff for injunctive relief, recovery of
response costs, or other appropriate relief relating to the Site, Settling Defendants shall not
assert, and may not maintain, any defense or claim based upon the principles of waiver, claim
preclusion (res judicata), issue preclusion (collateral estoppel), claim-splitting, or other defenses
based upon any contention that the claims raised by the United States in the subsequent
proceeding were or should have been brought in the instant case.
69.
Nothing in this Decree diminishes the right of the United States under
section 113(f)(2) and (3) of CERCLA to pursue any person not a party to this Decree to obtain
additional response costs or response action and to enter into settlements that give rise to
contribution protection pursuant to section 113(f)(2).
XVII. RECORDS
70.
Settling Defendant Certification. Each Settling Defendant certifies individually
that (a) it has implemented a litigation hold on documents and electronically stored information
relating to the Site, including information relating to its potential liability under CERCLA
regarding the Site, since the earlier of notification of potential liability by EPA in the April 10,
2023 special notice letter or the filing of suit against it regarding the Site; (b) to the best of its
knowledge and belief, it has complied with the record retention requirements of all prior
ASAOCs; and (c) it has fully complied with any and all EPA requests for information under
sections 104(e) and 122(e) of CERCLA, and section 3007 of RCRA.
71.
Retention of Records and Information
a.
Settling Defendants shall retain, and instruct their contractors and agents to
retain, the following documents and electronically stored data (“Records”) until 10 years after
the Certification Completion of the Work under SOW ¶ 5.7 (the “Record Retention Period”):
(1)
All records regarding Settling Defendants’ liability under CERCLA
regarding the Site;
(2)
All reports, plans, permits, and documents submitted to EPA in
accordance with this Decree, including all underlying research and data
regarding the Site; and
(3)
All data developed by, or on behalf of, Settling Defendants in the course
of performing the Remedial Action.
b.
Settling Defendants shall retain all Records regarding the liability of any person
under CERCLA regarding the Site during the Record Retention Period.
c.
At the end of the Record Retention Period, Settling Defendants shall notify EPA
that it has 90 days to request the Settling Defendants’ Records subject to this Section. Settling
24
Defendants shall retain and preserve their Records subject to this Section until 90 days after
EPA’s receipt of the notice. These record retention requirements apply regardless of any
corporate record retention policy.
72.
Settling Defendants shall provide to EPA, upon request, copies of all Records and
information required to be retained under this Section. Settling Defendants shall also make
available to EPA, for purposes of investigation, information gathering, or testimony, their
employees, agents, or representatives with knowledge of relevant facts concerning the
performance of the Work.
73.
Privileged and Protected Claims
a.
Settling Defendants may assert that all or part of a record requested by Plaintiff
is privileged, or protected as provided under federal law, in lieu of providing the record, provided
that Settling Defendants comply with ¶ 73.b, and except as provided in ¶ 73.c.
b.
If Settling Defendants assert a claim of privilege or protection, they shall
provide Plaintiff with the following information regarding such record: its title; its date; the
name, title, affiliation (e.g., company or firm), and address of the author, of each addressee, and
of each recipient; a description of the record’s contents; and the privilege or protection asserted.
If a claim of privilege or protection applies only to a portion of a record, Settling Defendants
shall provide the record to Plaintiff in redacted form to mask the privileged or protected portion
only. Settling Defendants shall retain all records that they claim to be privileged or protected
until Plaintiff has had a reasonable opportunity to dispute the privilege or protection claim and
any such dispute has been resolved in Settling Defendants’ favor.
c.
Settling Defendants shall not make any claim of privilege or protection
regarding: (1) any data regarding the Site, including all sampling, analytical, monitoring,
hydrogeologic, scientific, chemical, radiological or engineering data, or the portion of any other
record that evidences conditions at or around the Site; or (2) the portion of any record that
Settling Defendants are required to create or generate in accordance with this Decree.
74.
Confidential Business Information (CBI) Claims. Settling Defendants may
claim that all or part of a record provided to Plaintiff under this Section is CBI to the extent
permitted by and in accordance with section 104(e)(7) of CERCLA and 40 C.F.R. § 2.203(b).
Settling Defendants shall segregate and shall clearly identify all records or parts thereof
submitted under this Decree for which they claim is CBI by labeling each page or each electronic
file “claimed as confidential business information” or “claimed as CBI.” Records that Settling
Defendants claim to be CBI will be afforded the protection specified in 40 C.F.R. part 2,
subpart B. If no CBI claim accompanies records when they are submitted to EPA, or if EPA
notifies Settling Defendants that the records are not entitled to confidential treatment under the
standards of section 104(e)(7) of CERCLA or 40 C.F.R. part 2, subpart B, the public may be
given access to such records without further notice to Settling Defendants.
75.
In any proceeding under this Decree, validated sampling or monitoring data
generated in accordance with the SOW and reviewed and approved by EPA, if relevant to the
proceeding, is admissible as evidence, without objection.
25
76.
Notwithstanding any provision of this Decree, Plaintiff retains all of its
information gathering and inspection authorities and rights, including enforcement actions
related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.
XVIII.
NOTICES AND SUBMISSIONS
77.
All agreements, approvals, consents, deliverables, modifications, notices,
notifications, objections, proposals, reports, waivers, and requests specified in this Decree must
be in writing unless otherwise specified. Whenever a notice is required to be given or a report or
other document is required to be sent by one Party to another under this Decree, it must be sent
as specified below. All notices under this Section are effective upon receipt, unless otherwise
specified. In the case of emailed notices, there is a rebuttable presumption that such notices are
received on the same day that they are sent. Any Party may change the method, person, or
address applicable to it by providing notice of such change to all Parties. Settling Defendants
shall copy the State when submitting or resubmitting any deliverable or report required pursuant
to the SOW.
As to DOJ:
via email to:
eescdcopy.enrd@usdoj.gov
Re: DJ # 90-11-3-12784
As to EPA: via email to:
tinococastaneda.paulina@epa.gov
Re: Site/Spill ID # NED986373678
As to the Regional
Financial Management
Officer:
via email to:
mccloud.norma@epa.gov
Re: Site/Spill ID # NED986373678
As to State: via email to:
guthrie.kris@nebraska.gov
Re: Site/Spill ID # NED986373678
26
As to Settling
Defendants:
as to Brightspeed Kansas Holdings, LLC:
Stacy Stotts
Polsinelli
sstotts@polsinelli.com
Michael Fenwick
Litigation Counsel
Brightspeed
Michael.Fenwick@brightspeed.com
Aaron Newell
Corporate Counsel
T-Mobile
Aaron.Newell16@T-Mobile.com
Barbara Butler, P.E.
Project Manager, Environmental Solutions
Black & Veatch
ButlerBA@BV.com
as to Black Hills Nebraska Gas, LLC:
Black Hills Nebraska Gas, LLC
ATTN: Legal Department
7011 Mount Rushmore Road, P.O. Box 1400
Rapid City, SD 57702-8752
as to Nebraska Public Power District:
Nebraska Public Power District
ATTN: Legal Department
1414 15th Street, P.O. Box 499
Columbus, NE 68602-0499
Lamson, Dugan & Murray, LLP
ATTN: Brian J. Brislen
10306 Regency Parkway Drive
Omaha, NE 68114
XIX. APPENDIXES
78.
The following appendixes are attached to and incorporated into this Decree:
“Appendix A” is the Record of Decision.
“Appendix B” is the SOW.
“Appendix C” is the map of the Site.
27
XX.
MODIFICATIONS TO DECREE
79.
Except as provided in ¶ 24 of the Decree and ¶ 7.6 of the SOW (Approval of
Deliverables), nonmaterial modifications to Sections I through XXIV and the Appendixes must
be in writing and are effective when signed (including electronically signed) by the Parties.
Material modifications to Sections I through XXIV and the Appendixes must be in writing,
signed (which may include electronically signed) by the Parties, and are effective upon approval
by the Court.
XXI. SIGNATORIES
80.
The undersigned representative of the United States and each undersigned
representative of a Settling Defendant certifies that he or she is fully authorized to enter into the
terms and conditions of this Decree and to execute and legally bind such Party to this document.
XXII. PRE-ENTRY PROVISIONS
81.
If for any reason the Court should decline to approve this Decree in the form
presented, this agreement, except for ¶ 82 and ¶ 83, is voidable at the sole discretion of any Party
and its terms may not be used as evidence in any litigation between the Parties.
82.
This Decree will be lodged with the Court for at least 30 days for public notice
and comment in accordance with section 122(d)(2) of CERCLA and 28 C.F.R. § 50.7. The
United States may withdraw or withhold its consent if the comments regarding the Decree
disclose facts or considerations that indicate that the Decree is inappropriate, improper, or
inadequate.
83.
Settling Defendants agree not to oppose or appeal the entry of this Decree.
XXIII.
INTEGRATION
84.
This Decree constitutes the entire agreement among the Parties regarding the
subject matter of the Decree and supersedes all prior representations, agreements, and
understandings, whether oral or written, regarding the subject matter of the Decree.
XXIV.
FINAL JUDGMENT
85.
Upon entry of this Decree by the Court, this Decree constitutes a final judgment
under Fed. R. Civ. P. 54 and 58 among the Parties.
28
SO ORDERED this 27th day of January, 2025.
___________________________________
United States District Judge
29
Signature Page for Consent Decree in U.S. v. Black Hills Nebraska Gas, LLC, et al. (D. Neb.)
FOR THE UNITED STATES:
Todd Kim
Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division
_11/1/2024_
Dated
__/s/ Danica Anderson Glaser_____
Danica Anderson Glaser
Senior Counsel
Rachel Fullmer
Trial Attorney
U.S. Department of Justice
Environment and Natural Resources
Division Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044
202-514-5270
danica.glaser@usdoj.gov
30
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Signature Page for Consent Decree in U.S. v. Black Hills Nebraska Gas, LLC, et al. (D. Neb.)
FOR: BLACK HILLS NEBRASKA GAS, LLC
10/15/2024
___________
Dated
___________________________________
Name: Amy K. Koenig
Title: VP – Governance, Corporate Secretary and Deputy General Counsel
Address: 7001 Mt. Rushmore Road
Rapid City, SD 57702
If the Decree is not approved by the Court within 60 days after the date of lodging, and
the United States requests, this Settling Defendant agrees to accept service of the complaint by
mail, and to execute a waiver of service of a summons under Rule 4 of the Federal Rules of Civil
Procedure and any applicable local rules of this Court. This Settling Defendant hereby
designates the agent below to accept service of the complaint by mail and to execute the
Rule 4 waiver of service. This Settling Defendant understands that it does not need to file an
answer to the complaint until it has executed the waiver of service or otherwise has been served
with the complaint.
Name: Adam Buhrman
Title: Corporate Counsel
Company: Black Hills Corporation
Address: 2287 College Road
Council Bluffs, Iowa 51503
Phone: 402-221-2630
email: Adam.buhrman@blackhillscorp.com
33
Appendix A:
Record of Decision
RECORD OF DECISION
IOWA-NEBRASKA LIGHT & POWER CO. SITE
OPERABLE UNIT 1 – SOURCE MATERIALS
NORFOLK, MADISON COUNTY, NEBRASKA
Prepared by:
U.S. Environmental Protection Agency
Region 7
11201 Renner Blvd
Lenexa, Kansas 66219
September 2022
*30821068*
30821068
TABLE OF CONTENTS
Part I: DECLARATION ............................................................................................................................ 1
Site Name and Location ...................................................................................................................... 1
Statement of Basis and Purpose .......................................................................................................... 1
Assessment of the Site ......................................................................................................................... 1
Description of Selected Remedy ......................................................................................................... 1
Statutory Determinations ..................................................................................................................... 3
ROD Data Certification Checklist ....................................................................................................... 3
Authorizing Signatures ........................................................................................................................ 3
Part II: DECISION SUMMARY ............................................................................................................... 4
1.0 Site Name, Location and Brief Description ............................................................................... 4
2.0 Site History and Enforcement Activities ................................................................................... 5
3.0 Community Participation ........................................................................................................... 6
4.0 Scope and Role of Operable Unit or Response Action .............................................................. 7
5.0 Site Characteristics ..................................................................................................................... 7
5.1 Conceptual Site Model ..................................................................................................... 7
5.2 Overview of the Site ........................................................................................................ 8
5.3 Climate ............................................................................................................................. 9
5.4 Area of Historical or Archeological Significance ............................................................ 9
5.5 Stratigraphy ...................................................................................................................... 9
5.6 Regional Geology ............................................................................................................ 9
5.7 Site Geology..................................................................................................................... 9
5.8 Regional Hydrogeology ................................................................................................. 10
5.9 Site Hydrogeology ......................................................................................................... 10
5.10 Sampling Strategy .......................................................................................................... 12
5.11 Known or Suspected Sources of Contamination ........................................................... 15
6.0 Nature and Extent of Contamination ....................................................................................... 16
7.0 Current and Potential Future Site and Resource Uses ............................................................. 18
8.0 Summary of Site Risks............................................................................................................. 18
8.1 Summary of Human Health Risk Assessment ............................................................... 19
8.2 Summary of Ecological Risk Assessment ..................................................................... 25
8.3 Basis for Remedial Action ............................................................................................. 27
9.0 Remedial Action Objectives .................................................................................................... 27
10.0 Description of Alternatives ...................................................................................................... 28
11.0 Summary of Comparative Analysis of Alternatives ................................................................ 30
11.1 Overall Protection of Human Health and the Environment ........................................... 31
11.2 Compliance with Applicable or Relevant and Appropriate Requirements .................... 31
11.3 Long-Term Effectiveness and Permanence ................................................................... 31
11.4 Reduction of Toxicity, Mobility, or Volume Through Treatment ................................. 32
11.5 Short-Term Effectiveness .............................................................................................. 32
11.6 Implementability ............................................................................................................ 32
11.7 Cost ................................................................................................................................ 33
11.8 State/Support Agency Acceptance ................................................................................. 33
11.9 Community Acceptance ................................................................................................. 33
12.0 Principal Threat Wastes ........................................................................................................... 34
13.0 Selected Remedy ...................................................................................................................... 34
ii
13.1 Summary of the Rationale for the Selected Remedy .................................................... 34
13.2 Description of the Selected Remedy .............................................................................. 35
13.3 Summary of the Estimated Remedy Costs..................................................................... 36
13.4 Expected Outcomes of the Selected Remedy ................................................................ 36
14.0 Statutory Determinations ......................................................................................................... 37
14.1 Protection of Human Health and the Environment ........................................................ 37
14.2 Compliance with ARARs .............................................................................................. 37
14.3 Cost-Effectiveness ......................................................................................................... 38
14.4 Utilization of Permanent Solutions and Alternative Treatment (or Resource Recovery)
Technologies to the Maximum Extent Practicable (MEP) ..................................................... 38
14.5 Preference for Treatment as a Principal Element .......................................................... 38
14.6 Five-Year Review Requirements ................................................................................... 39
15.0 Documentation of Significant Changes ................................................................................... 39
PART III:
RESPONSIVENESS SUMMARY ..................................................................................... 40
APPENDIX A – ACRONYMS
APPENDIX B – GLOSSARY OF TERMS
APPENDIX C – FIGURES
APPENDIX D – HOW IS HUMAN HEALTH RISK CALCULATED?
APPENDIX E – TABLES
APPENDIX F – APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
APPENDIX G – NDEE CONCURRENCE LETTER
APPENDIX H – PUBLIC NOTICE DISPLAY AD
APPENDIX I – CITY ORDINANCE NO. 5725
APPENDIX J – ENVIRONMENTAL COVENANTS
iii
Part I: DECLARATION
Site Name and Location
Site Name: Iowa-Nebraska Light & Power CO. Site, Operable Unit 1 (OU 1)
Site Location: Norfolk, Madison County, Nebraska
Lead Agency: United States Environmental Protection Agency
Support Agency: Nebraska Department of Environment and Energy
Site Identification Number: EPA ID #: NED986373678
Statement of Basis and Purpose
This decision document presents the Selected Remedy for source materials, which is designated as
Operable Unit (OU) 1 of the Iowa-Nebraska Light & Power CO. Superfund Site (Site) in Norfolk,
Madison County, Nebraska. This decision was made in accordance with the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) Section 121, as amended by the
Superfund Amendments and Reauthorization Act (SARA) and, to the extent practicable, the National
Oil and Hazardous Substance Pollution Contingency Plan (NCP) (40 C.F.R. § 300.430(f)(4)(ii)). This
decision is based on the Administrative Record (AR) file for this Site which is located at the following
information repositories:
U.S. Environmental Protection Agency
Region 7
11201 Renner Blvd
Lenexa, Kansas 66219
Site Profile Page Link
https://www.epa.gov/superfund/IowaNebraskaLightandPowerCo
The Site consists of two OUs, OU 1 is the subject of this ROD. OU 1 is designated as source materials
which includes the remaining soil contamination and dense nonaqueous phase liquid (DNAPL). OU 2 is
designated as sitewide groundwater. Figure 1 depicts the site location. The long-term remedial strategy
for this National Priorities List (NPL) site will be managed as a phased approach. The remedial action to
reduce and/or eliminate source materials will be conducted prior to evaluating remedial alternatives to
address OU 2. The state of Nebraska, as represented by the Nebraska Department of Environment and
Energy (NDEE), concurs with the Selected Remedy for OU 1. NDEE provided a letter of concurrence
on May 3, 2022, which is included in Appendix G.
Assessment of the Site
The response action selected in this Record of Decision (ROD) is necessary to protect the public health
or welfare or the environment from actual or threatened releases of hazardous substances into the
environment.
Description of Selected Remedy
The Selected Remedy for OU 1, source materials, is in-situ thermal treatment (ISTT).
1
The remedial action objectives (RAOs) for the OU 1 remedial action include:
•
Prevent exposure via inhalation of contaminants of concern (COCs) through vapor
intrusion from soil gas that exceed the 10-6 cancer risks and/or a hazard index of 1 for noncancer risks.
•
Prevent incidental ingestion, dermal contact, and inhalation of airborne particulates of
COCs from source materials that exceed the 10-6 cancer risks and/or a hazard index of 1 for
non-cancer risks.
•
Prevent the migration and leaching potential of COCs in soil that would result in
groundwater contamination above levels that are protective of beneficial use (i.e., drinking
water use).
•
Minimize the further migration of COCs from the DNAPL area to the groundwater plume.
The OU 1 COCs include benzene, toluene, ethylbenzene, and total xylenes (BTEXs) and polycyclic
aromatic hydrocarbons (PAHs). The cleanup levels were based on the leaching potential of contaminants
in soil and are indicated in the table below. These cleanup levels are based on the protection-togroundwater values. Cleanup levels were not developed for the heavier PAHs remaining in soil, which
will be immobile compared to the lighter volatile organic compounds (VOCs) that have migrated into
groundwater.
Soil Analytical Results and Cleanup Levels
Maximum Concentration
Cleanup Level
Contaminant of Concern
(mg/kg)
(mg/kg)
Benzene
3.41
0.052
Toluene
0.896
13.8
Ethylbenzene
87.5
45.6
Total Xylenes
257
633
Naphthalene
473
0.0076
Benzo(a)pyrene
56
4.8
mg/kg – milligrams per kilogram
µg/kg – microgram per kilogram
Cleanup Level
(µg/kg)
52
13,800
45,600
633,000
7.6
4,800
The remedial action for OU 1, source materials will be the initial remedial action for the Site and will
be negotiated in a Consent Decree for Remedial Design/Remedial Action (RD/RA) with the
respondents. The long-term remedial strategy will be managed as a phased approach. The OU 1
remedial action will be conducted to address the source materials prior to evaluating remedial
alternatives to address the OU 2 sitewide groundwater. This phased remedial approach is preferred as
it will initially focus on eliminating the continued leaching potential of the soil contamination into the
water table, thus preventing further impacts to the drinking water aquifer and will minimize the further
migration of contaminants from the DNAPL area to the groundwater plume. Following completion of
the OU 1 remedial action, remedial alternatives to address the sitewide groundwater will be evaluated
and a preferred alternative will eventually be proposed and selected in an additional ROD for OU 2.
Principal threat wastes are highly toxic or highly mobile materials that may present a significant risk to
human health or the environment if exposure were to occur. They include liquids and other materials
having high concentrations of toxic compounds (e.g., solvents). Consistent with the NCP and the EPA
2
guidance, the identification of principal threat waste is made on a site-specific basis. The source area
contamination associated with OU 1 is “principal threat waste” because of the presence of DNAPL. The
DNAPL constitutes a principal threat waste as it is source material that acts as a reservoir for migration
of contamination to groundwater.
The major components of the Selected Remedy for OU 1, source materials, are:
•
ISTT including common elements of vapor monitoring and mitigation, institutional controls
(ICs), groundwater sampling and performance monitoring.
Statutory Determinations
The EPA has determined the Selected Remedy is protective of human health and the environment, will
comply with federal and state requirements that are applicable or relevant and appropriate to the
remedial action, is cost-effective, and will utilize permanent solutions and alternative treatment
technologies evaluated during the selection of remedial alternatives to the maximum extent practicable.
The remedy also satisfies the statutory preference for treatment as a principal element (i.e., reduces the
toxicity, mobility, or volume of hazardous substances, pollutants, or contaminants as a principal element
through treatment).
The OU 1 remedy will result in hazardous substances, pollutants, or contaminants remaining on-site
above levels that allow for unlimited use and unrestricted exposure, five-year reviews (FYR) will be
required for the OU 1 remedial action.
ROD Data Certification Checklist
The following information is included in the Decision Summary section of this ROD. Additional
information can be found in the AR file for this site.
•
•
•
•
•
•
•
•
COCs and their respective concentrations (Section 6.0)
Baseline risk represented by the COCs (Section 8.0)
Cleanup levels established for COCs and the basis for these levels (Sections 6.0 and 9.0)
How source materials constituting principal threats were addressed (Section 12.0)
Current and reasonably anticipated future land use (Section 7.0)
Potential land and groundwater use that will be available at the Site because of the Selected
Remedy (Section 7.0)
Estimated costs (Sections 10, 11.7 and 13.3)
Key factors(s) that led to selecting the remedy (Section 13.0)
Authorizing Signature
_____________________________
Robert D. Jurgens, Director
Superfund and Emergency Management Division
3
Part II: DECISION SUMMARY
1.0
Site Name, Location and Brief Description
The U.S. Environmental Protection Agency, the lead agency, in consultation with the Nebraska
Department of Environment and Energy (NDEE), the support agency, prepared this Record of Decision
(ROD) to document the selection of in-situ thermal treatment (ISTT) for operable unit (OU) 1 at the
Iowa-Nebraska Light & Power CO. Superfund Site (Site). This project is funded as a potentially
responsible party (PRP)-lead site with the EPA oversight. The EPA and respondents will negotiate a
Consent Decree for Remedial Design/Remedial Action (RD/RA) to implement the ISTT at OU 1.
This ROD certifies that the remedy selection process was carried out in accordance with the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) 42
U.S.C. § 9617, as amended, and, to the extent practicable, in accordance with the National Oil and
Hazardous Substance Pollution Contingency Plan (NCP) 40 C.F.R. § 300.430(f)(4), respectively.
This ROD highlights key information from the Remedial Investigation (RI) report, Baseline Risk
Assessment (BLRA) report, Feasibility Study (FS) report and Proposed Plan for OU 1 recently released
for the Site. These and other documents regarding the upcoming remedial action are available in the Site
Administrative Record (AR) located at the EPA Region 7 Office at the address listed below or the Site
Profile Page link.
U.S. Environmental Protection
Agency Region 7
11201 Renner Boulevard
Lenexa, Kansas 66219
Site Profile Page
https://www.epa.gov/superfund/IowaNebraskaLightandPowerCo
The Site is a former manufactured gas plant (FMGP) that was located west of 7th Street between Norfolk
and Madison Avenues in Norfolk, Madison County, Nebraska. The site properties are currently owned
by Black Hills Energy (BHE) and Nebraska Public Power District (NPPD). Figure 2 depicts the site
properties and FMGP layout. The Site properties are approximately one and a half acres in size and the
associated groundwater contaminant plume is approximately three acres and extends east/southeast to 5th
Street and Madison Avenue. Figures 10 through 13 depict the benzene and naphthalene plumes
associated with the Site.
The Site is located approximately 120 miles northwest of Lincoln, Nebraska. Norfolk is the economic
center for an area encompassing six counties. Basic economic activities of Norfolk are manufacturing,
farming (both livestock and grain), education, retailing and wholesaling. Norfolk is the major retail trade
center of Northeast Nebraska. The Site consists of one contaminant source area that originates in the
downtown area associated with the FMGP operations that began between 1907-1909 and ceased in
1948.
The EPA identification number is NED986373678. A citizen can use the EPA identification number on
the EPA’s website to obtain additional information on the Site.
4
2.0
Site History and Enforcement Activities
The Site was first owned by Norfolk Light & Fuel Company in 1902. The FMGP operations began
between 1907-1909 and ceased in 1948. The FMGP originally produced gas by the Tenney water gas
process but was converted to carbureted water gas in 1932. The FMGP operations resulted in wastes,
including coal tar, being released into the environment.
The Site has changed ownership and operation several times throughout its history. The Site is currently
owned by BHE and NPPD. The Centel Corporation is the successor to the FMGP operations. PRP
search activities for the site consisted of completing a PRP Search Report in July 2012. All three parties
were signatories to prior administrative orders for the Engineering Evaluation/Cost Analysis (EE/CA),
the removal action and the RI/FS. BHE and NPPD were obligated by the orders to provide access and
Centel was required to conduct the work.
The Site was discovered in October 1990 when the EPA conducted a Preliminary Assessment which
included a site visit and a background search. A Site Investigation (SI) was subsequently conducted in
1992 which included collecting soil and groundwater samples to determine if a release of coal tar
associated with the FMGP operations had occurred. The SI analytical results determined semi-volatile
organic compounds (SVOCs) commonly associated with MGP operations and typically attributed to
coal tar wastes were detected in both soil and groundwater at the Site.
In 2001, the EPA conducted an Expanded Site Investigation (ESI) to verify the presence of residual
contamination from the coal gasification process remaining at the Site; and if verified, to characterize
any source(s) of contamination identified; and to determine whether the groundwater in the site area is
contaminated. Based on the results of the previous investigations and the ESI, the most likely source
of the groundwater contamination was determined to be the location of the former 10,000 cubic foot
(ft3) gas holder beneath the FMGP building on the northern portion of the Site (Figure 2). Subsurface
soil and groundwater samples collected were found to be contaminated with FMGP-related
compounds: polycyclic aromatic hydrocarbons (PAHs), light, aromatic compounds, and metals. The
presence of these contaminants in the subsurface clearly identified the former belowground gas holder
area as the source of soil and groundwater contamination at the Site.
In 2007, the EPA entered an AOC with the respondents to conduct an EE/CA. The EE/CA consisted of
conducting additional site characterization activities which included electrical conductivity probing
using direct push technology (DPT), DPT soil and groundwater probing, monitoring well installation,
soil and groundwater sampling and dense non-aqueous phase liquid (DNAPL) delineation by laserinduced fluorescence DPT probing. The data generated were used to complete a BLRA for the Site
which determined that future populations could potentially be exposed to unacceptable risks from
indoor air exposure via vapor intrusion and due to contact with contaminated soil and groundwater.
The results of the EE/CA were documented in the EE/CA Alternative Evaluation Report dated June
2012 which recommended the preferred removal action alternative to address these risks as soil
excavation and groundwater monitoring.
In 2013, the EPA entered an AOC with the respondents to conduct a non-time-critical removal action
to implement the preferred removal action alternative from the EE/CA. The non-time critical removal
action included excavation and off-site disposal or treatment of contaminated soils; limitations on
future land use, including, but not limited to prohibiting future residential development of the site and
restrictions on groundwater usage and groundwater monitoring as a post removal site control.
5
In August 2013, the EPA issued an Enforcement Action Memorandum under the authority of
CERCLA § 104(a), 42 U.S.C. § 9604(a), and the NCP, 40 C.F.R. Part 300 to address the contaminated
source area soils. Between January and June 2014, the respondents conducted the non-time-critical
removal action which resulted in the excavation and disposal of approximately 10,495 tons of
contaminated soil. Figures 4 and 5 depict the extent of the excavation. Clean backfill was placed and
compacted on both the BHE and NPPD parcels. The BHE parcel was restored to a concrete parking lot
and the NPPD parcel was restored to a fenced gravel lot.
Following completion of the non-time-critical removal action, Environmental Covenants (ECs) were
recorded on the BHE parcel and NPPD parcel in December 2014 and March 2016, respectively. The
purpose of ECs is to ensure protection of human health and the environment by minimizing the
potential for exposure to the contamination that remains on the properties and to ensure that the
properties are not developed, used, maintained, or operated in a manner which may result in
unacceptable exposures to residual contamination. The ECs document activity and use limitations on
both parcels which include not using the properties for residential, child-care or school use; prohibiting
the extraction and use of groundwater underlying the properties; and limiting any digging, drilling,
excavating, constructing, earth moving or other land disturbing activities that occur beneath the
property without prior written notice to the EPA. The ECs are included in Appendix J.
The site was proposed to the National Priorities List (NPL) in September 2015. In April 2016, the site
was placed final on the NPL based on the potential for the groundwater contamination associated with
the site to impact the east municipal well field located 0.5 mile downgradient of the site.
In 2017, the EPA entered an AOC with the respondents to conduct a RI/FS. The RI consisted of
advancing DPT electrical conductivity probes downgradient of the site; DPT groundwater probes to
collect samples for chemical analysis; soil probes for geotechnical and leachate testing; installing and
developing additional monitoring wells; collecting groundwater measurements and samples from site
monitoring wells; and collecting DNAPL measurements and samples and removing DNAPL from site
wells. Groundwater levels were also collected over time in select wells with transducers.
The EPA Superfund Program manages this project as a PRP-lead site since there is a viable
responsible party that has been identified for the site. The respondents have negotiated the AOCs to
conduct the EE/CA, removal action and RI/FS in good faith and have completed the required work
under each order.
3.0
Community Participation
The EPA completed the Community Involvement Plan in 2012 which is included in the AR for the Site.
The RI Report, Rev. 3 dated December 15, 2020, the FS Report, Rev. 4 dated March 10, 2022, and the
Proposed Plan for the Iowa-Nebraska Light & Power CO. Superfund Site in Norfolk, Madison County,
Nebraska, were made available to the public in April 2022. They can be found in the AR file and the
information repository maintained at the EPA Region 7 offices at 11201 Renner Boulevard, Lenexa,
Kansas, and at the site profile page link:
https://www.epa.gov/superfund/IowaNebraskaLightandPowerCo. The notice of the availability of these
documents was published in the local newspaper, The Norfolk Daily News, on April 22, 2022, and April
29, 2022, and is included in Appendix H. A public comment period was held from April 25, 2022, to
May 24, 2022. A virtual public meeting was held on May 3, 2022, through Zoom to present the
Proposed Plan to a broader community audience than those that had already been involved at the Site. At
that meeting, representatives from the EPA presented the site history and the preferred remedial
6
alternative to address OU 1. No verbal or written comments were received from the community by the
EPA regarding the preferred alternative during the public comment period. The NDEE presented a letter
of concurrence on the Selected Remedy on May 3, 2022, which is in Appendix G.
No information has been obtained during the RI/FS process that would indicate any changes in the
anticipated future land uses and potential future beneficial uses of groundwater.
4.0
Scope and Role of Operable Unit or Response Action
As with many Superfund sites, the problems at the Iowa-Nebraska Light & Power CO. Superfund Site
are complex. As a result, the EPA has divided the Site into two OUs:
•
•
OU 1: Source materials (remaining soil contamination and DNAPL)
OU 2: Sitewide groundwater
This ROD addresses OU 1. The remedial action for OU 1, source materials, will be the initial remedial
action for the Site. The EPA intends to negotiate a Consent Decree for RD/RA. The long-term
remedial strategy will be managed as a phased approach. The OU 1 remedial action will be conducted
to address the source materials prior to evaluating remedial alternatives to address the OU 2 sitewide
groundwater. This phased remedial approach is preferred as it will initially focus on eliminating the
continued leaching potential of the soil contamination into the water table, thus preventing further
impacts to the drinking water aquifer and will minimize the further migration of contaminants from the
DNAPL area to the groundwater plume. Following completion of the OU 1 remedial action, remedial
alternatives to address the sitewide groundwater will be evaluated and a preferred alternative will
eventually be proposed and selected in an additional ROD for OU 2.
5.0
Site Characteristics
This section of the ROD provides a brief overview of the Site, including its physical description, climate
setting, topography, hydrology, geology, hydrogeology, the nature and extent of contamination and the
conceptual site model (CSM). This summary of the site characteristics is based on previous
investigations and response actions conducted by the respondents with oversight by the EPA. Detailed
information about the site’s characteristics can be found in documents in the AR, specifically the Final
RI Report, Rev. 3 (2020) and the Final FS Report, Rev.4 (2022).
5.1
Conceptual Site Model
Health risks may occur when there is contact with a chemical by a receptor population. Exposed
populations may ingest, inhale, or dermally absorb a chemical or contaminant of potential concern
(COPC) to complete an exposure pathway and potentially may experience an adverse health risk.
Exposure pathways are determined by the locations of sources, types of release mechanisms, types of
fate and transport mechanisms, and the locations and activities of the receptors. The CSM identifies the
pathway of COPCs from their primary source(s), through possible routes of exposure, to the potential
receptor. The CSM was developed during the planning phase, prior to the field investigation activities,
and then refined as more information became available. The human health CSM for OU 1 is included in
Section 8.0 of the ROD. A range of potential human receptors, both current and future, have potentially
been and could be exposed. These include residents, industrial/commercial workers, construction
workers and utility workers.
7
The soil at OU 1 is contaminated with PAHs and BTEXs because of historical releases to the
environment from the FMGP. The groundwater at OU 2 is contaminated with VOCs and semi-VOCs
because of historical releases to the environment from the FMGP site. An evaluation of the leaching
potential from soil to groundwater was conducted to determine the likelihood of residual soil
contamination in the alley and along the 7th Street right of way to leach to groundwater. The evaluation
focused on BTEXs and naphthalene since these are the MGP-related chemicals with the greatest
potential to leach from the soil and migrate to groundwater. The evaluation conducted suggested that
naphthalene concentrations in the alley and the 7th Street right of way pose a long-term risk to
potentially impact groundwater from contaminant leaching. Residual benzene and ethylbenzene
concentrations pose a lower risk; the risk for toluene and xylenes is considered negligible. Based on the
leaching potential, the cleanup levels for COCs in soil are based on the protection-to-groundwater
values.
The city of Norfolk’s water supply relies on a blend of water from west municipal wells M-6 through M13 and east municipal wells M-1, M-3, M-4, and M-5 when operational. The east municipal wells are
currently operated during the summer months based on seasonal demand. Transducer data collected in
2019 and 2020 from site monitoring wells indicates a decrease in groundwater levels at site monitoring
wells while the east municipal wells are operational. Based on this decrease in groundwater levels in site
wells during east municipal well operations, it has been determined that there is connectivity between
the shallow alluvial aquifer and deeper bedrock aquifer. Although the lateral extent of the groundwater
contaminant plume did not change, there may be potential impacts to the vertical hydraulic gradient near
the edge of the plume since drawdown was observed in downgradient monitoring wells during pumping
of the east municipal wells.
The CSM for the site is included in Appendix C, Figure 16.
5.2
Overview of the Site
Norfolk is located within Madison County in northeastern Nebraska. The city of Norfolk, population of
24,400 in 2020, is the largest city in Madison County. Based on the city’s comprehensive plan, the
acreage is zoned approximately 30.2% residential, 15.5% public/civil use, 13.8% agricultural and 11.8%
commercial. The site is in downtown Norfolk and consists of areas both north and south of the alley
bisecting 7th and 8th Streets: BHE owns the property straddling the alley and NPPD owns the remainder
of the site to the south. The BHE parcel is paved with concrete and is used for vehicle parking. The
NPPD parcel is fenced off and contains a maintenance building and an electrical substation, with the
remainder covered with gravel for parking and equipment storage.
Based on the 2018 City of Norfolk Zoning Map, the site properties are in a light industrial district
zoning area and are not used for residential use. The general site area is zoned for multiple uses,
including downtown and mixed uses, public facilities, retail, and single family residential. The buildings
immediately west of the BHE parcel contain a warehouse area, and several businesses including a
kitchen remodeling showroom, a bridal shop and a tile shop. The closest residences are located along the
west side of 8th Street across the street from the NPPD parcel.
The north fork of the Elkhorn River is located approximately 0.7 mile east of the Site. The east
municipal well field is located approximately 0.5 mile east of the Site.
The FMGP was located at the intersection of Norfolk Avenue and 7th Street. Figure 2 depicts the
historical MGP structures and equipment. The groundwater contaminant plume associated with the Site
8
migrates to the east/southeast approximately 0.16 miles. Figures 10 through 13 depict the naphthalene
and benzene plumes.
5.3
Climate
The climate in Madison County is continental, which varies widely throughout the seasons from
extremely cold with frequent snowfall during the winter to hot and humid with widespread
thunderstorms during the summer. The average annual temperature ranges from 47.3 degrees Fahrenheit
(°F) to 53.2°F. In winter, the average minimum temperature is 14.7°F. In summer, the average
maximum temperature is 84.7°F. Precipitation averages 26.57 inches per year with most occurring
between April and September as rain. The average seasonal snowfall is 29.02 inches.
5.4
Area of Historical or Archeological Significance
There were no known areas of historical or archeological significance identified at the Site.
5.5
Stratigraphy
Alluvium and glacial till underlay the Site and areas immediately downgradient of the Site. The upper
portion of the alluvium consists of approximately 10 to 15 feet of mostly stiff, low plasticity sandy or
silty clay. The lower portion of the alluvium is composed of a medium to coarse grained sand with a few
discontinuous clay lenses. Underlying the alluvium is glacial till composed mostly of very stiff sandy or
silty clay. Figure 16 depicts the CSM for the Site.
5.6
Regional Geology
The soil in the site area has been classified as Muir silty clay loam of the Elkhorn River, underlain by
glacial till. These soils consist mostly of stiff, low plasticity sandy to silty clay and are nearly level on
low stream terraces, are well drained, and have slow surface run-off and moderate permeability. The
soils formed from the silty alluvium in the floodplain of the Elkhorn River.
The City of Norfolk is within the alluvial plains of the Elkhorn River and its tributary, the North Fork of
the Elkhorn River. The unconsolidated materials underlying the area consist of stream alluvium
deposited by rivers. The northwestern portion of the city is underlain by glacial and loess deposits that
create gently sloping to steep hills. The unconsolidated deposits are of Quarternary-age and have a
thickness of 40 feet in the flood plain to 55 feet in areas containing glacial till and loess.
Underlying the consolidated materials are the 450-foot-thick rocks of the Upper and Lower Cretaceous.
The Colorado Group is comprised primarily of shaly chalk and limestone (Niobrara Formation) and
shale with some sandstone. The lower Dakota Group is primarily sandstone with some shale. These
groups are underlain by Pennsylvanian-aged rock, consisting of shale, limestone sandstone and coal.
5.7
Site Geology
The site is underlain by alluvium and glacial till deposits. The upper portion of the alluvium consists of
approximately ten to fifteen feet of mostly stiff, low plasticity sandy or silty clay. The lower portion of
the alluvium is composed of a medium to coarse grained sands with a few discontinuous clay lenses.
One clay lens is present within the sand layer underneath a portion of the Site at approximately 26 feet
bgs. This lens was identified in EC-09 and EC-03 and was also observed in the soil boring for MW-02B.
9
However, the lens was not identified in any other EC probe or soil boring indicating the lens is not
continuous throughout the site area.
5.8
Regional Hydrogeology
The primary aquifers in the area are a surficial aquifer formed by alluvial and glacial deposits and the
deeper Colorado Group and Dakota Group aquifers. Private wells in the Norfolk area and the municipal
water wells near the West Water Treatment Plant (wells M-6 to M-13), located approximately 3.5 miles
west of town, draw water from the surficial aquifer (same as the site monitoring wells). Based on
information from the city, the west wells range in depth between 50.67 and 65 feet. The municipal wells
at the East Water Treatment Plant (M-1 to M-5), located approximately 0.5 mile east of the site, draw
water from the deeper Colorado aquifer. Based on a camera inspection conducted at wells M-1, M-3 and
M-4 in July 2019, and city records, the east municipal wells draw water from 45 to 117 feet bgs and are
cased with cast iron pipe to at least the top of the limestone bedrock with open bore holes within the
bedrock. There is no screen below the top of bedrock. Based on information obtained from the city, well
M-2 is 127 feet deep, and M-5 is 117 feet deep. Well M-2 is an inactive well located adjacent to M-1.
Figure 14 depicts the location of the east municipal wells.
The City of Norfolk’s water supply is a blend of water from west municipal wells M-6 through M-13
and east municipal wells M-1, M-3, M-4 and M-5 when operational. Currently, the east municipal wells
are only operated during the summer months (June, July, August). The city has indicated there is a
potential for the East Water Treatment Plant to operate full time in the future based on municipal water
demand.
A survey was performed by searching the Nebraska Department of Natural Resources database of
registered groundwater wells. There are 249 registered wells within one mile of the site classified as
monitoring (225), recovery (3), irrigation (1), heat pump (2), ground exchange (1),
commercial/industrial (1), domestic (1), and other (14). The five municipal wells at the East Water
Treatment Plant were not listed in the database. Most wells identified in the immediate site area appear
to be monitoring wells. The nearest domestic wells are located approximately 0.8 mile northeast and 1
mile southeast of the site at 211 Sycamore Avenue and 901 South Birch, respectively. No domestic
wells in the site vicinity are known to be present.
In 2021, the City of Norfolk passed Ordinance No. 5725 which requires all premises, residential,
commercial, or industrial businesses within city limits and the city’s two-mile extraterritorial zoning
jurisdiction to be directly connected to a public water distribution main if the property is located within
three hundred (300) feet of a public water distribution main. Connection to a public water distribution
main will be required upon failure of an existing domestic well or at the time of new construction. The
ordinance also states all new private water wells for premises located within three hundred (300) feet of
a public water distribution main will be prohibited after March 15, 2021, unless approved by the public
works director. The city ordinance is in Appendix I.
5.9
Site Hydrogeology
Groundwater levels have been measured in all site monitoring wells during the routine groundwater
sampling events. During the June 2021 groundwater sampling event groundwater levels were measured
in the 36 site monitoring wells to verify the groundwater flow direction. The depth to groundwater was
similar to historic levels of 11-12 feet bgs. Figure 9 shows the groundwater surface elevation in June
2021 for the “A” level monitoring wells which are monitoring wells screened in the uppermost water10
bearing zone from 10-20 feet bgs. The contours indicate a general groundwater flow across the site to
the southeast which is consistent with previous sampling events. The site monitoring well construction
details and screening intervals are included in Table 26 of Appendix E.
DNAPL has also been measured during each routine sampling event. The measurements were performed
by lowering a stainless-steel measuring device to the bottom of each well and recording the amount of
DNAPL adhering to the device upon withdrawal from the well. Table 27 of Appendix E contains the
observed DNAPL measurements.
During the time of the initial RI fieldwork, the east municipal wells were not operational, and
groundwater flow within the surficial aquifer was observed to have a natural eastward trend toward the
river. To determine if pumping of the east municipal wells affects groundwater flow closer to the MGP
site, transducers were installed in upgradient wells MW-01A/B and downgradient wells MW-14A/B,
MW-16A/B and MW-17A/B. Water levels were recorded every 30 minutes from July 17, 2019, through
May 20, 2020. The results from July 17 through October 2, 2019, shown in Table 4-2 of RI Report
provide a snapshot of water levels before, during and after the east municipal wells operational period.
In May 2020, in anticipation of the longer-term water level monitoring, the recording frequency was
changed to once a day. Water levels were collected from downgradient wells MW-08A/B, MW-14A/B,
MW-16A/B, and MW-17A/B from May 21 through September 21 to capture the June, July and August
pumping operations; however, the city ceased operations on September 15. Therefore, the results shown
in Table 4-3 of RI Report only account for 6 days following the shutdown. Figure 14 shows the location
of the east municipal wells in relationship with the site monitoring wells and groundwater flow.
The transducer data show that water levels in the downgradient monitoring wells decreased during the
entire period of operation and recovered after the city ceased operations of the east municipal wells. The
transducer data also showed decreasing water levels even after the city wells were repaired by mid-July.
While drawdown was observed in monitoring wells during the periods of pumping, no significant shift
in groundwater flow direction was observed, suggesting that while pumping influenced water levels
nearer the site, incomplete capture may be present from the east municipal wells. Although the lateral
extent of the plume did not change, it is possible the vertical gradient of the edge of the plume was
affected by observed drawdown in downgradient wells. Additional groundwater characterization will be
completed during the OU 2 RI.
The operating east municipal wells draw water from approximately 45 to 117 feet bgs and appear to be
installed to withdraw water from limestone bedrock, compared to the site-related monitoring wells that
are installed no deeper than 34.5 feet in the overlying alluvium. Based on the observed decrease in
groundwater levels in site wells during pumping, there is apparent hydraulic connectivity between the
shallow alluvial and deeper bedrock aquifers.
Aquifer testing was completed during the EE/CA site characterization phase in 12 of 14 monitoring
wells. Slug test data were evaluated using Starpoint Super Slug Software, Version 2.2. The Hvorslev
method of slug test analysis was used to estimate hydraulic conductivity for each well. Boring logs of
FMGP site wells and wells within the surrounding area of the east municipal wells that are deeper than
30 feet indicate glacial till, clay, or shale between the limestone and alluvial sand. This infers that some
type of confining unit exists between the alluvial and bedrock aquifers. Therefore, the Hvorslev method
was determined to be applicable and appropriate. Calculated hydraulic conductivity ranges from
1.41x10-3 centimeters per second (cm/sec) in MW-01A to 2.11x10-1 cm/sec in MW-05B. The average
hydraulic conductivity of the upper and lower portions of the alluvial sand is 9.18x10-3 and 1.56x10-2
11
cm/sec, respectively. The horizontal flow velocities were calculated to be 45 feet per year in the upper
portion of the alluvial sand and 86 feet per year in the lower portion of the alluvial sand. The slug test
data are presented in Appendix K of the RI Report.
Consistent with the Guidelines for Ground-Water Classification Under the EPA Ground-Water
Protection Strategy (EPA, 1986), the groundwater beneath the site is classified as a current and potential
source of drinking water. The depth to groundwater at site monitoring wells collected in 2021 ranged
between 11 to 12 feet bgs. The groundwater flow direction is to the east/southeast.
5.10
Sampling Strategy
The EPA Superfund program manages this project as a PRP-led site since there is a viable responsible
party that has been identified for the site. The respondents have negotiated the AOCs to conduct the
EE/CA, removal action and RI/FS in good faith and have completed the required work under each order.
The AOC for RI/FS was effective on May 11, 2017.
Sampling activities for the RI were performed during numerous field events beginning in 2018 and
consisted of geologic logging by advancing electrical conductivity probes downgradient of the site,
groundwater direct push technology probes to collect samples for chemical analysis, soil probes to
collect samples for geotechnical and leachate testing, installation and development of monitoring wells,
collecting groundwater measurements and samples from site monitoring wells, collecting DNAPL
measurements, samples and removing DNAPL from site wells, surveying newly installed wells and
collecting water levels from select wells with transducers. The RI field work conducted in summarized
in the sections below.
Electrical Conductivity Probing
Three electrical conductivity (EC) probes (EC-10, EC-11 and EC-12) were advanced with DPT
downgradient of the site to determine the lithology of the soil in the groundwater investigation areas. EC
probes were advanced until refusal with a hydraulic direct push probing unit in multiple locations
between 3rd and 5th Streets. Refusal depth ranged from 47 to 55 feet bgs. The locations of the EC probes
are shown on Figure 17.
EC probing was used to determine the top and bottom of the sand unit where groundwater probe
samples were collected. The results indicate that the top of the sand layer is approximately 12 feet bgs
and the bottom of the sand layer is approximately 32 feet bgs, which is consistent with historical EC
probe results. In previous probes EC-10 and EC-12, a 5 to 7-foot sand layer was encountered
approximately two to three feet below the top of the till.
Groundwater Direct Push Technology Probing and Sampling
Based on the sand layer depths determined by the EC probing, thirteen groundwater probes were
advanced with DPT to determine the horizontal and vertical extent of groundwater contamination further
downgradient than investigated during the EE/CA and other historical fieldwork. Initially a minimum of
eight probes were planned to be advanced. However, based on the data from those probes, five
additional probes were advanced to better define the extent of groundwater contamination. The locations
of the groundwater probes are depicted on Figure 17. Samples from at least two depth intervals were
taken from each probe: 12 to 16 feet and 28 to 32 feet bgs. In GWP-19, GWP-21, and GWP-22, a third
12
sample was collected from the sand layer that was encountered within the till only at these locations,
which were advanced farther to the southeast than previously investigated.
At each location, the groundwater probe was advanced to the deepest sampling interval. Groundwater
samples were collected by purging the probes using new polyethylene tubing and a peristaltic pump
until the water was relatively free of sediment, approximately one to two gallons. Once a sample was
collected, the probe was raised to the shallow or intermediate interval and the process was repeated. The
groundwater samples were field-screened for benzene using Frog-4000TM field gas chromatograph. The
instrument was calibrated for a benzene range of 0.8 to 40 micrograms per liter (ug/L). The five
additional probes were advanced based on the field GC data.
All groundwater samples collected were also submitted to Pace Analytical of Lenexa, KS, for VOC
analysis by SW-846 Method 8260 to verify gas chromatograph results. The 12 samples from the first
four groundwater probe locations were analyzed under expedited 24-hour turnaround to verify that the
field gas chromatograph was operating as expected as the data were used to make field decisions for
locating groundwater probes.
Soil Probing and Sampling
In 2018, one soil probe was advanced with DPT outside of the investigation area along 6th Street to
collect soil sample for geotechnical testing to evaluate the hydrologic properties of subsurface material
in the site area. One shallow (15-20 feet) and one deep (27-32 feet) soil sample were collected using a
direct push macro sampler and submitted to the GSI soil laboratory. Samples were submitted for grain
size analysis. As originally proposed in the work plan, a Shelby tube sampler for collecting soil bulk
density and total porosity samples was unable to be advanced due to saturated heaving sands. The grain
size analysis reports are provided in Appendix D of the RI Report.
In 2020, seven DPT probes were advanced in the alley and along the 7th Street right of way for analysis
by the soil synthetic precipitation leaching procedure (SPLP). Probe locations are shown on Figure 18.
Shallow (6-8 feet) and deep (12-14 feet) soil samples were collected from each probe using direct push
macro sampler and submitted to Pace Analytical. Fifteen soil samples were analyzed for SPLP by SW846 Method 1312 and BTEX and naphthalene by SW-846 Method 8260. The SPLP leachate was
additionally analyzed for BTEX and naphthalene.
Monitoring Well Installation and Development
A total of 19 permanent groundwater monitoring wells were installed between March 25 and April 10,
2019, to provide additional monitoring points in the site area. Except for MW-09A/B, MW-10A and
MW-11 A/B, whose locations were originally proposed in the work plan, the well locations were based
on the groundwater probing results. The additional wells provide sentinel locations to monitor the
downgradient extent of the plume, monitor the lateral extent of the downgradient portion of the plume
and provide monitoring points to differentiate FMGP-related from leaking underground storage tank
(LUST)-related contamination in the downtown area. Figure 8 of Appendix C shows the locations of all
site monitoring wells.
Table 26 of Appendix E provides the monitoring well construction information for the entire network.
All monitoring wells were developed using a submersible pump and surged during development to
remove sediment and obtain clear water. Water quality parameters were collected after the purge water
13
was relatively free of sediment. Approximately 30 to 50 gallons were removed from each well. The
development water was containerized in a 1,000-gallon polyethylene tank and stored on site for
subsequent offsite treatment and disposal.
Monitoring Well Sampling
In June 2018, groundwater samples were collected from upgradient wells MW-01A/B and crossgradient wells MW-06A/B. These samples were analyzed for C3-C12 Quantitative Molecular
Characterization by gas chromatograph/mass spectrometry to determine concentrations of paraffins,
isoparaffins, aromatics, naphthalene, and olefins (PIANO) analysis for comparison to DNAPL collected
from MW-02A.
In April and August 2019, groundwater levels were measured in all site monitoring wells and
groundwater samples were collected. Upgradient wells MW-01A/B were not sampled in April or August
due to a historical lack of detections. Cross-gradient wells MW-18A/B were not sampled in August due
to a lack of detections and distance from the plume. The samples were analyzed for VOCs by SW-846
Method 8260 and SVOCs by SW-846 Method 8270. Samples collected in April from 12 wells along the
plume centerline were analyzed for geochemical parameters to assess the naturally occurring biological
processes that have already been observed in the plume as well as to provide data to assess potential
remedial technologies. The geochemical parameters included alkalinity, carbon dioxide, chloride, total
and dissolved iron and manganese, methane, ethane, ethene, nitrate/nitrite, sulfate, sulfide, total organic
carbon, chemical oxygen demand and biological oxygen demand.
To delineate between the MGP-related contamination and contamination associated with LUST sites in
the area, groundwater samples from 13 monitoring wells were analyzed by forensic testing, including
C3-C12 PIANO analysis of gasoline range compounds and/or parent and alkylated PAH analysis. The
purpose was to compare and confirm the forensic results for samples collected in June 2018.
Following water level measurements and prior to sample collection, groundwater was purged using a
low flow sampling method with a peristaltic pump and disposable polyethylene tubing. The purge water
flowed through an In-Situ MP-Troll 9500 flow-through cell to measure oxidation-reduction potential
(ORP), temperature, pH, conductivity, dissolved oxygen (DO) and turbidity to determine groundwater
stability in wells. During well development, MW-10A, MW-11B, MW-12A and MW-14A contained
visible sheen; MW-10A and MW-11B exhibited a characteristic tar odor; and MW-12A and MW-14A
exhibited a distinctly different odor.
DNAPL Sampling and Monitoring
In May 2018, a DNAPL sample was collected from well MW-02A and analyzed for C3-C12
Quantitative Molecular Characterization by gas chromatograph/mass spectrometry (PIANO analysis).
The data were compared to groundwater samples collected from select monitoring wells downgradient
of the source area.
To assess the recoverability of DNAPL, MW-02A, MW-02B, MW-10A, and MW-11B were
periodically measured during well installation and groundwater sampling fieldwork for the presence of
DNAPL. Levels were also checked in May, August, and October 2019, May and September 2020. In
April 2019, wells MW-02A and MW-11B contained enough DNAPL to warrant removal (greater than
0.25 feet). No DNAPL has been observed in well MW-10A. The DNAPL water mixture was removed
14
from the wells was solidified with an oil absorbent material and stored in a 55-gallon drum for disposal
at a later date. Table 25 in Appendix E includes the DNAPL measurements in site monitoring wells.
Municipal Well Camera Inspection
In October 2019, three of the City’s five east municipal water supply wells were inspected to
supplement the groundwater flow evaluation. The city provided total well depths for all wells but only
screened intervals for well M-5. Therefore, wells M-1, M-3 and M-4 were inspected by televising the
wells.
To complete the inspection, Downey Drilling removed the turbine pumps using a truck-mounted crane
from the three wells and lowered a camera to a total depth. It was observed that the wells are cased with
cast iron to at least the top of bedrock with open bore holes within the bedrock. There was no screen
within the bedrock. The construction infers that the intent was to remove water from the fractured
limestone bedrock. The casings for both M-3 and M-4 had significant holes or deterioration near the
bottom of the casings where the limestone bedrock was visible.
The city repaired wells M-1, M-3, M-4 and M-5 by July 15, 2020. New column pipes and pumps were
installed in all wells. A new liner was installed in M-4.
Table 28 in Appendix E presents the total depths, screened intervals, and pumping capacities of the east
municipal wells, either provided by the city or from the inspection.
Transducer Data Collection
Water levels were collected from select monitoring wells to evaluate potential drawdown effects from
the pumping of the east municipal water supply wells. Transducers were installed in upgradient wells
MW-01A/B and downgradient wells MW-14A/B, MW-16A/B and MW-17A/B to record water levels
from July 17, 2019, through May 20, 2020. On May 21, the transducers in MW-01A/B were moved to
MW-08A/B and water levels were recorded from May 21 through September 21. The results indicate a
decrease in groundwater levels while the east municipal wells are operational. Based on this decrease in
groundwater levels in site wells during east municipal well operations, it has been determined that there
is connectivity between the shallow alluvial aquifer and deeper bedrock aquifer. Although the lateral
extent of the groundwater contaminant plume did not change, it is possible the vertical gradient near the
edge of the plume was impacted due to the observed drawdown in downgradient monitoring wells.
5.11
Known or Suspected Sources of Contamination
The soil at OU 1 is contaminated with PAHs and BTEXs because of historical releases to the
environment from the FMGP. The groundwater at OU 2 is contaminated with VOCs and SVOCs
because of historical releases to the environment from the FMGP. An evaluation of the leaching
potential from soil to groundwater was conducted to determine the likelihood of residual soil
contamination in the alley and along the 7th Street right of way to leach to groundwater. The evaluation
focused on BTEXs and naphthalene since these are the FMGP-related chemicals with the greatest
potential to leach from the soil and migrate to groundwater. The evaluation conducted suggested that
naphthalene concentrations in the alley and the 7th Street right of way pose a long-term risk to
potentially impact groundwater from contaminant leaching. Residual benzene and ethylbenzene
concentrations pose a lower risk; the risk for toluene and xylenes is considered negligible. Based on the
15
leaching potential, the cleanup levels for COCs in soil are based on the protection-to-groundwater
values.
The primary source of groundwater contamination are highly concentrated residuals in the form of
DNAPL that remain within groundwater beneath the FMGP and immediately downgradient of the
FMGP. However, as discussed above, the residual soil contamination in the vadose zone also exhibits a
potential to leach to groundwater. Figure 7 shows the extent of the DNAPL. DNAPL has been measured
and recovered in MW-2A and MW-2B since 2015 and in MW-11B since 2019 when it was installed.
DNAPL was measured in 2015 at MW-2A at 5.04 feet thick and is currently at the base of measuring
stick. The minimal recovery in wells since 2019 may indicate DNAPL surrounding the wells is nearing
residual saturation. The overall area containing DNAPL is 52,000 square feet.
6.0
Nature and Extent of Contamination
RI field data acquired during the 2018, 2019 and 2020 field investigations were evaluated in conjunction
with groundwater probe and monitoring well chemical data to further assess the nature and extent of
groundwater contamination in the site area. Historical releases of FMGP residuals resulted in impacts to
soil and groundwater at the site. Most of the soil contamination was addressed during the 2014 nontime-critical removal action. During the 2014 removal action, the below grade structures associated with
the FMGP operations were removed and approximately 10,495 tons of contaminated soil and debris
were excavated from the site. Based on the confirmation sampling, residual soil contamination exists in
the vadose zone underneath the alley bisecting 7th and 8th Street and underneath 7th Street adjoining the
site.
The primary source of groundwater contaminants are highly concentrated residuals in the form of
DNAPL that remain within groundwater immediately downgradient of the FMGP. The overall area
containing DNAPL is 52,000 square feet. However, as discussed above, residual soil contamination in
the vadose zone also exhibits a significant potential to leach to groundwater. The most prevalent
contaminants in the groundwater are benzene and naphthalene, which are common chemicals associated
with both FMGP and LUST sites. Figures 8 through 14 show the locations of the LUST sites located in
the downtown area near the site.
Based on the remaining soil contamination within the alley and 7th Street right of way, the respondents
conducted an evaluation of the leaching potential from soil to groundwater to determine the likelihood
of the residual soil contamination in the alley and along the 7th Street right of way to leach to
groundwater. The evaluation focused on BTEX compounds and naphthalene since these are the FMGPrelated constituents with the greatest potential to leach from the soil and migrate to groundwater. The
evaluation conducted suggested that naphthalene concentrations remaining in the alley and 7th Street
right of way pose a long-term risk to potentially impact the groundwater from contaminant leaching.
Residual benzene and ethylbenzene concentrations pose a lower risk; the risk for toluene and xylenes is
considered negligible. Based on the leaching potential, the cleanup levels for COCs in soil are based on
the protection of groundwater-to-(soil-to-groundwater) values.
Cleanup levels were not developed for the heavier PAHs remaining in soil, which will be immobile
compared to the lighter VOCs that have migrated into groundwater. The estimated extent of the vadose
zone soil contamination to be addressed under the OU 1 remedial action covers an area of approximately
19,400 square feet. The estimated volume of remaining soil contamination to be addressed is 10,200
cubic yards. Figure 6 depicts the extent of the soil contamination to be addressed under the OU 1
16
remedial action. The maximum soil concentrations and the associated cleanup levels for the OU 1 COCs
are included below.
Contaminant of
Concern
Benzene
Toluene
Ethylbenzene
Total Xylenes
Naphthalene
Benzo(a)pyrene
mg/kg – milligrams per kilogram
µg/kg – micrograms per kilogram
Soil Analytical Results and Cleanup Levels
Maximum Concentration
Cleanup Levels
(mg/kg)
(mg/kg)
3.41
0.052
0.896
13.8
87.5
45.6
257
633
473
0.0076
56
4.8
Cleanup Levels
(µg/kg)
52
13,800
45,600
633,000
7,6
4,800
Principal threat wastes are highly toxic or highly mobile materials that may present a significant risk to
human health or the environment if exposure were to occur. They include liquids and other materials
having high concentrations of toxic compounds (e.g., solvents). Consistent with the NCP and EPA
guidance, the identification of principal threat waste is made on a site-specific basis. The source area
contamination associated with OU 1 is “principal threat waste” because of the presence of DNAPL. The
DNAPL constitutes a principal threat waste as it is source material that acts as a reservoir for migration
of contamination to groundwater.
The site also consists of a groundwater contaminant plume which is designated as OU 2 that originates
at the source area and migrates to the east/southeast approximately 0.16 miles. The East Municipal
Water Treatment Plant is approximately 0.5 mile east of the site. As indicated in Section 4.0,
following completion of the OU 1 remedial action, remedial alternatives to address the sitewide
groundwater will be evaluated and a preferred alternative will eventually be proposed and selected in
an additional ROD for OU 2. Figures 10 through 13 depict benzene and naphthalene plumes and
Figure 14 depicts the locations of the east municipal water supply wells. Consistent with the
Guidelines for Ground-Water Classification Under the EPA Ground-Water Protection Strategy (EPA,
1986), the groundwater beneath the site is classified as current and potential source of drinking water.
Contaminated soil and groundwater can result in a vapor intrusion (VI) pathway. A VI pathway occurs
when vapors form beneath buildings and structures and enter those buildings through cracks in
basements and foundations as well as through utility conduits and other openings. Multiple lines of
evidence are utilized when evaluating the VI pathway at a site. Indoor air, sub-slab soil gas and soil gas
samples were collected at multiple locations throughout the site to evaluate the VI pathway.
Soil gas and/or indoor air and ambient air samples were collected over five sampling events from
February 2015 to June 2016. Soil gas samples were collected from near-slab ports located adjacent to
the west end of the buildings (along 8th Street) and from sub-slab ports installed within the warehouse
area of the building adjacent to the west side of the removal action excavation area. Indoor air samples
were collected from the warehouse area and adjacent businesses located west of the warehouse. The VI
sampling and evaluation determined that based on the current use of the warehouse, VI from FMGPrelated contaminants does not pose an unacceptable risk to occupants of the building. No VI mitigation
was warranted.
17
7.0
Current and Potential Future Site and Resource Uses
The city Norfolk has a population of over 24,000 and is the largest city in Madison County according to
the 2017 U.S. census data. The average resident age is 36.2 years. Based on a comprehensive plan
update completed for the City in February 2017, the population of Norfolk is expected to exceed 29,600
by 2040. Based on the city’s comprehensive plan, the acreage is zoned approximately 30.2% residential,
15.5% public/civil use, 13.8% agricultural, and 11.8% commercial. The remaining areas are vacant, or
city operated rights-of-way. Future growth and development are anticipated to occur incrementally for
the next 20 years.
The site is located near the middle of downtown Norfolk. During the removal action, contaminated soils
were excavated, and the area was backfilled with clean fill and capped to prevent additional exposure.
Site improvements included a paved parking lot on the northern portion for the adjoining commercial
properties. The rest consists of a vacant building, vacant gravel lot, and a small substation. The
immediate area is surrounded by residential and commercial activities. Both the NPPD and BHE
properties have ECs in place that include activity and use limitations. The city’s comprehensive plan
does not include any zoning changes or downtown improvements that would impact the site in the
foreseeable future.
Groundwater is the primary source of drinking water for the city of Norfolk and is also used for
industrial, commercial, agricultural (livestock and irrigation) and domestic purposes. The future
groundwater uses will likely remain the same. The nearest municipal well to the site utilized for drinking
water is M-5, which is located about .5 mile east/downgradient of the site property. The East Water
Treatment Plant consists of four active municipal wells that are currently operated during summer
months based on seasonal demand. The east municipal wells draw water from the deeper Colorado
aquifer and range in depth from 45 to 117 feet.
The groundwater in the Site has been designated as an EPA Class II Aquifer, a current and potential
source of drinking water. The state of Nebraska has designated the groundwater as a Class GA
Groundwater Supply. Class GA Groundwater designates a groundwater supply which is currently being
used as a public drinking water supply or is proposed to be used as a public drinking water supply.
Contamination detected in the source materials at OU 1 is contributing to the groundwater contaminant
plume.
8.0
Summary of Site Risks
This section summarizes the results of the BLRA, which consists of a Human Health Risk Assessment
(HHRA) and an Ecological Risk Assessment (ERA). The HHRA for the site was finalized in 2019 as
part of the RI. See Appendix D for information on how human health risk is calculated. These BLRAs
(before any cleanup) provide the basis for taking a response action and identify exposure pathways. Risk
assessments examine existing and potential future risks that could occur if conditions at a site do not
change. The NCP has set a target risk range of 1x10-4 to 1x10-6 for excess lifetime carcinogenic risk and
a target hazard index (HI) of no greater than one for non-carcinogenic risks. The response actions
selected in this ROD are necessary to protect the public health or welfare or the environment from actual
or threatened releases of hazardous substances into the environment.
18
8.1
Summary of Human Health Risk Assessment
An HHRA identifies the potential exposure pathways through which people may be exposed to Site
contaminants, the toxicity of the contaminants present, and the potential for carcinogenic and noncarcinogenic effects to occur from exposure to the contaminants. Chemical contaminants that are
ingested (consumed), inhaled (breathed), or dermally absorbed (via skin contact) may present
carcinogenic or non-carcinogenic risk to different organs of the human body.
The HHRA for OU 1 was conducted for the Site as part of the RI/FS to estimate the risks and hazards to
human receptors associated with current and future potential uses. The HHRA is an analysis of the
potential adverse human health effects caused by exposure to the hazardous substances in the absence of
any actions to control or mitigate the exposures. It provides the basis for taking a response action and
identifies the contaminants and exposure pathways that need to be addressed by the remedial action.
A four-step process is used in the HHRA to assess the site-related cancer risks and non-cancer health
hazards. The four-step process: 1) identification of COPCs and calculation of exposure point
concentrations (EPCs); 2) assessment of potential exposures; 3) assessment of toxicity of COPCs; and 4)
calculation of the risk-based exposures, toxicity, and concentrations of COPCs. At the end of the riskassessment process, those COPCs found to pose an unacceptable human or ecological risk, called risk
drivers, are identified as COCs.
The 2019 HHRA for the site was conducted prior to separating the site into OU 1 and OU 2 and
evaluated risks associated with soil exposure into four separate areas (1) BHE property, (2) NPPD
property, (3) alley between NPPD and BHE properties, and (4) 7th Street and Norfolk Avenue right of
way. Cancer risks to future residents, construction utility workers and commercial/industrial workers at
the NPPD property and BHE property are all within the EPA’s acceptable risk range of 1x10-6 (1 in
1,000,000) to 1x10-4 (1 in 10,000). Cancer risks to future residents exposed to soil within the alley and
groundwater exceed the 10-4 values which indicates an unacceptable cancer risk. At all four areas
evaluated, the HI exceeded one for future residents exposed to both soil in the alley and groundwater,
the HIs were 3.82 and 517, respectively. For all other exposure scenarios, the HI was less than one and
considered insignificant.
The BLRA estimates what risks the Site poses if no action were taken. It provides the basis for taking a
response action and identifies the contaminants and exposure pathways that need to be addressed by the
remedial action. This section of the ROD summarizes the results of the BLRA for this Site.
8.1.1
Identification of Chemicals of Concern
Data evaluated for the HHRA consisted of the analytical results from soil samples collected primarily on
the BHE and NPPD parcels as well as the alley that separates the FMGP. Groundwater samples were
collected from the monitoring wells installed on the site.
The COCs for the site were determined by first selecting the COPCs. COPCs were identified using the
results of a risk-based screening. Maximum detected concentrations and maximum laboratory reporting
limits (for non-detections) were compared to RSLs. COPCs are generally selected as a subset of all
chemicals or contaminants positively identified at the Site. The process of determining the COPCs for
19
OU 1 included a detailed evaluation of the analytical data, a careful analysis of the source of
contamination and areas that the source impacts and a review of site characteristics.
For the purposes of selecting COPCs for OU 1, the analytical data were grouped by media. Soil samples
and associated analytical results were grouped based on sample location within the limits of the NPPD
and BHE parcels, the alley between the two parcels, and the City of Norfolk right-of-way along 7th
Street and Norfolk Avenue. Two rounds of groundwater data were collected from monitoring wells
installed during the RI field investigation. Based on the recommended procedures outlined in
Determining Groundwater Exposure Point Concentrations, Supplemental Guidance (EPA, 2014a),
sample data from core plume monitoring well locations MW-04, MW-07, MW-08, MW-11, and MW-14
are used to assess risk downgradient of the FMGP site properties. COPCs identified for OU 1 included
BTEXs, PAHS including acenaphthene, acenaphthylene, anthracene, benzo(a)anthracene,
benzo(a)pyrene, benzo(b)fluoranthene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene,
dibenzo(a,h)anthracene, fluoranthene, fluorene, indene(1,2,3-cd)pyrene, naphthalene, phenanthrene, and
pyrene and arsenic.
Arsenic was identified as a COC in the Proposed Plan. However, based on the data collected, the
maximum concentration of 17.6 mg/kg results in a cancer risk of 2.6 x 10-5 which is within the
acceptable cancer risk range. The average concentration of arsenic of 8.0 mg/kg when used in the RSL
calculator indicates a cancer risk of 1.2 x 10-5 which is also within the acceptable risk range. The
resulting risk evaluating the maximum concentration detected as well as the average is within the
acceptable risk range, and both are likely not significantly different than natural background
concentrations of arsenic found in this area of town. Given the likelihood that these concentrations
represent naturally occurring concentrations, a cleanup level is not necessary for arsenic for OU 1.
COPCs not associated with MGP operations were identified in groundwater at the Site and were not
retained as COCs. Chemicals detected included chlorinated VOCs, VOCs associated with other types of
petroleum contamination such as methyl; tertiary butyl ether, and common laboratory contaminants such
as methylene chloride and acetone. Chlorinated VOCs are not chemicals associated with MGP sites but
other industrial uses such as dry cleaning and degreasing; methyl tertiary butyl ether is a fuel additive.
The primary COCs detected in groundwater are BTEXs and PAHs, with the expected chemicals
benzene, naphthalene, and benzo(a)pyrene driving the risk.
8.1.2
Exposure Assessment
Exposure refers to the contact or potential contact of an individual (the receptor) with a contaminant.
The exposure assessment evaluates the magnitude, frequency, duration, and route of potential exposure.
The reasonable maximum exposure (RME) scenarios are developed using current exposure pathways
given existing land uses and exposures which might reasonably be predicted based upon expected or
logical future land use assumptions. Table A-4 in Appendix A of the BLRA includes information related
to the inputs and parameters for the RME scenarios.
The exposure assessment process involved four main steps:
•
•
•
Characterization of the exposure setting (physical environment and potential receptors)
Identification of exposure pathways (constituent sources, exposure points, and exposure routes)
Quantification of pathway-specific exposures (EPCs, calculation of receptor intakes, and
exposure assumptions)
20
•
Identification of uncertainties in the exposure assessment
The BLRA Report documented Site conditions that were used in the characterization of the exposure
setting. These Site conditions included information about the physical setting including location, current
condition of site properties, zoning information about surrounding properties, site-specific hydrogeology
and well survey information.
Based on the nature of the COCs detected and the physical characteristics of the site, the potential routes
of contaminant migration relevant to human exposure included the following for the site:
•
•
•
Incidental ingestion, dermal contact, and inhalation of airborne particulates from surface soil,
Incidental ingestion, dermal contact, and inhalation of volatile contaminants released from
subsurface soil,
Ingestion, dermal contact, and inhalation of volatile contaminants in groundwater.
The HHRA evaluated the exposure points associated with each medium. The determination of exposure
routes was based on the media contaminated and the anticipated activities at the exposure point.
Exposure routes for each receptor at the site are provided below.
•
•
•
•
•
•
•
•
•
Future Commercial/Industrial Workers-Surface Soil – NPPD Property (0-2 feet) – If the gravel
surface was removed, future onsite workers (outdoor) may be exposed to COCs via incidental
ingestion, dermal contact, and inhalation of airborne particulates.
Future Adult and Child Residents-Surface Soil – NPPD Property (0-2 feet) – If the gravel surface
was removed, future residents may be exposed to COCs via incidental ingestion, dermal contact,
and inhalation of airborne particulates.
Future Construction Workers-Subsurface Soil – NPPD Property (2-10 feet) – During future
excavation for utility repair or construction activities, onsite workers may be exposed to COCs in
soil via incidental ingestion, dermal contact, and inhalation of volatile contaminants released
from soil.
Future Construction Utility Workers-Subsurface Soil – BHE Property (0-10 feet) – During future
excavation for utility repair or construction activities, onsite workers may be exposed to COCs in
soil via ingestion, dermal contact, and inhalation of volatile contaminants released from soil.
Future Adult and Child Residents-Surface Soil – Alley Between NPPD and BHE Properties (0-2
feet) – If the surface was removed, future residents may be exposed to COCs via incidental
ingestion, dermal contact, and inhalation of airborne particulates.
Future Construction Worker-Subsurface Soil – Alley Between NPPD and BHE Properties (0-10
feet) – During future excavation for utility repair or construction activities, workers may be
exposed to COCs in soil via incidental ingestion, dermal contact, and inhalation of volatile
contaminants released from soil.
Future Adult and Child Residents-Surface Soil – 7th Street and Norfolk Avenue ROW (0-2 feet)
– If the surface was removed, future residents may be exposed to COCs via incidental ingestion,
dermal contact, and inhalation of airborne particulates.
Future Construction Worker-Subsurface Soil – 7th Street and Norfolk Avenue ROW (0-10 feet) –
During future excavation for utility repair or construction activities, workers may be exposed to
COCs in soil via incidental ingestion, dermal contract, and inhalation of volatile contaminants
released from soil.
Future Onsite/Offsite Adult and Child Residents-Groundwater – It is possible that MGP-related
groundwater contaminants could migrate further away from the site and impact potable water
21
wells. Residents may be exposed to COCs in groundwater via ingestion, dermal contact, and
inhalation of volatile contaminants.
An exposure point concentration (EPC) is the concentration of a COPC in an environmental medium
that may reach the potential receptor. The exposure concentration is typically defined as the average
concentration contacted by the receptor at the exposure point. A conservative estimate of this average
concentration is the 95th percent upper confidence limit of the arithmetic mean. Contaminant
concentrations that were reported as “not detected” were included in the assessment to calculate EPCs.
Data from duplicate samples were included in the assessment consistent with the approach used during
the EE/CA risk assessment.
Due to small sample sets for the groundwater assessment, the maximum concentration detected had to
be used as the EPC for many COCs when the recommended UCL exceeded the maximum concentration.
Except for arsenic, the maximum concentration detected in MW-11 was used to assess risk. ProUCL
cannot be used for sample sets less than five.
Tables A-2.1 through A-2.8 of Appendix A of the BLRA present the calculated EPCs for soil and
groundwater.
The HHRA developed EPCs for the following groups of data for the site:
•
•
•
•
•
•
•
Incidental ingestion of soil,
Dermal contact with soil,
Inhalation of particulates,
Inhalation of volatilized contaminants,
Ingestion of groundwater,
Dermal contact with groundwater, and
Inhalation of VOCs from groundwater vapors.
The HHRA for the site demonstrated that cancer risks to future residents, construction utility workers
and commercial/industrial workers at the NPPD property and the BHE property are all within the EPA’s
acceptable risk range of 1x10-6 (1 in 1,000,000) to 1x10-4 (1 in 10,000). Cancer risks to future residents
exposed to soil within the alley and groundwater exceed the 10-4 values which indicates an unacceptable
cancer risk. At all four areas evaluated, the HI exceeded one for future residents exposed to both soil in
the alley and groundwater, the HIs were 3.82 and 517, respectively. For all other exposure scenarios, the
HI was less than one and considered insignificant.
8.1.3
Toxicity Assessment
The Toxicity assessment describes the relationship between a dose of a chemical and potential
likelihood of an adverse health effect. The purpose of the toxicity assessment is to quantitatively
estimate inherent toxicity of COPCs for use in risk characterization. In the context of the regulatory risk
assessment process, potential effects of chemicals are separated into two categories: carcinogenic
(cancer) and non-carcinogenic (non-cancer) effects. This division relates to current EPA policy that
mechanisms of action for these endpoints differ. The EPA generally assumes conservatively that
carcinogenic chemicals do not exhibit a response threshold (EPA 1986, 2005B), while non-carcinogenic
effects are universally recognized as threshold phenomena. However, chemicals believed to be
carcinogenic may also be capable of producing non-carcinogenic risks.
22
For the oral and dermal routes of exposure, toxicity values for carcinogens, also known as cancer slope
factors (CSF), are expressed in units of cancer incidence per unit dose of chemical. For the inhalation
route of exposure, cancer risk is assessed with inhalation unit risk (IUR) values. IUR is the upper-bound
excess lifetime cancer risk estimated to result from continuous exposure to an agent at a concentration of
1 µg/m3 in air.
For non-carcinogens, the toxicity values or reference doses (RfD) are expressed in terms of a threshold
value below which adverse effects are not expected to be observed. Non-cancer risk is assessed using
reference concentrations (RfC). An RfC is an estimate of a continuous inhalation exposure to the human
population that is likely to be without an appreciable risk of deleterious effects during a lifetime.
There are five standard descriptors used to describe a chemical carcinogenic hazard potential based on a
weight of evidence analysis. They are as follows: “Carcinogenic to Humans,” “Probable Human
Carcinogen,” “Possible Human Carcinogen,” “Not Classifiable as to Human Carcinogenicity,” and
“Likely to be Carcinogenic to Humans.” PCE is classified as “Likely to be Carcinogenic to Humans”
and TCE is classified as “Carcinogenic to Humans.”
Toxicity values were obtained from the following hierarchy of sources in accordance with the EPA’s
Office of Solid Waste and Emergency Response Directive 9285.7-53:
•
•
•
Tier 1 – The EPA’s Integrated Risk Information System (IRIS)
Tier 2 – Provisional Peer-Reviewed Toxicity Values (PPRTV) derived by the EPA’s Superfund
Health Risk Technical Support Center for the EPA Superfund Program
Tier 3 – Other peer-reviewed values including: Agency for Toxic Substances and Disease
Registry (ATSDR) Minimal Risk Levels; California Environmental Protection Agency, or
Cal/EPA; and the EPA Superfund Program’s Health Effects Assessment Summary Tables values
(HEAST).
Tables 9 and 10 include cancer toxicity data summary and Tables 11 and 12 include noncancer toxicity
data summary in Appendix E for the site.
8.1.4
Risk Characterization
For carcinogens, risks are generally expressed as the incremental probability of an individual’s
developing cancer over a lifetime because of exposure to the carcinogen. Excess lifetime cancer risk is
calculated from the following equation:
Risk = CDI x SF
where:
risk = a unitless probability (e.g., 2E-05) of an individual’s developing cancer
CDI = chronic daily intake averaged over 70 years (mg/kg-day)
SF = slope factor, expressed as (mg/kg-day)-1.
These risks are probabilities that usually are expressed in scientific notation (e.g., 1x10-6). An excess
lifetime cancer risk of 1x10-6 indicates that an individual experiencing the reasonable maximum
exposure estimate has a 1 in 1,000,000 chance of developing cancer because of site-related exposure.
This is referred to as an “excess lifetime cancer risk” because it would be in addition to the risks of
cancer individuals face from other causes such as smoking or exposure to too much sun. The chance of
an individual’s developing cancer from all other causes has been estimated to be as high as one in three.
23
Current Superfund regulations for acceptable exposures specify an upper value of cancer risk as between
1x10-4 to 1x10-6. The goal of protection is less than 1x10-6 for cancer risk.
The potential for noncarcinogenic effects is evaluated by comparing an exposure level over a specified
time period (e.g., life-time) with a reference dose (RfD) derived from a similar exposure period. An RfD
represents a level that an individual may be exposed to that is not expected to cause any deleterious
effect. The ratio of exposure to toxicity is called a hazard quotient (HQ). An HQ<1 indicates that a
receptor’s dose of a single contaminant is less than the RfD, and that toxic noncarcinogenic effects from
that chemical are unlikely. The Hazard Index (HI) is generated by adding the HQs for all chemical(s) of
concern that affect the same target organ (i.e., liver) or that act through the same mechanism of action
within a medium or across all media to which a given individual may reasonably be exposed. An HI<1
indicates that, based on the sum of all HQ’s from different contaminants and exposure routes, toxic
noncarcinogenic effects from all contaminants are unlikely. An HI>1 indicates that site-related
exposures may present a risk to human health.
The HQ is calculated as follows:
Non-cancer HQ = CDI/RfD
where:
CDI = Chronic daily intake
RfD = reference dose
CDI and Rfd are expressed in the same units and represent the same exposure period (i.e., chronic, subchronic, or short-term).
Non-carcinogenic and carcinogenic risks were evaluated for each exposure pathway and scenario by
integrating the exposure doses calculated in the exposure assessment with the toxicity criteria identified
in the toxicity assessment for the COCs. The results of the risk characterization were summarized in the
BLRA Report and are included in Appendix E Tables 13 through 24 of this ROD.
8.1.5
Uncertainties
Uncertainties are inherent in the process of quantitative risk assessment due to use of environmental
sampling results, assumptions regarding exposure, and quantitative representation of chemical toxicity.
The uncertainties in the risk assessment are associated with all steps in the risk assessment process. This
is due to assumptions made regarding the analytical data used, the characterization of exposure routes,
the accuracy and completeness of available toxicity information, and the risk characterization itself.
Section 6.0 of the BLRA dated November 2019 for the site discusses each of these areas in more detail.
8.1.6
Summary of Human Health Risks and Hazards
The focus of the BLRA was to evaluate the potential risks to future receptor populations associated with
residual soil contamination outside of the removal action excavation areas and the risk associated with
contamination in groundwater. The risks associated with the soil exposure pathway are within the
acceptable ranges established by the EPA for all pathways evaluated except for the residential scenario
for the alley between the BHE parcels. It is unlikely that this area would ever be repurposed for
residential use as it supports multiple underground utility lines as a right-of-way between two non24
residential properties and ECs are in place on these surrounding properties prohibiting residential
development.
Future populations could potentially be exposed to an unacceptable risk due to contact with
contaminated groundwater. The risk is primarily associated with naphthalene; however, other BTEXs,
PAHs, and arsenic additionally pose unacceptable risks. The risk is overestimated as the maximum
concentration detected for many chemicals of concern was used to assess the risks.
Cancer risks to future residents, construction utility workers and commercial/industrial workers at the
NPPD property and BHE property are all within the EPA’s acceptable risk range of 1x10-6 (1 in
1,000,000) to 1x10-4 (1 in 10,000). Cancer risks to future residents exposed to soil within the alley and
groundwater exceed the 10-4 values (4.6 x 10-3 and 3.2 x 100, respectively) which indicates an
unacceptable cancer risk. At all four areas evaluated, the hazard index (HI) exceeded 1 for future
residents exposed to both soil in the alley and groundwater, the HIs were 3.82 and 517, respectively. For
all other exposure scenarios, the HI was less than 1 and considered insignificant.
Tables 23 and 24 of the Appendix E include a summary of the carcinogenic and noncarcinogenic risks,
respectively, associated with the site.
8.2
Summary of Ecological Risk Assessment
The ecological risk assessment that was conducted for the EE/CA site characterization is still applicable.
Norfolk is within or near the habitat of several species that are listed on Nebraska’s threatened or
endangered species list, which is maintained by the National Resources Conservation Service of
Nebraska. These habitats include nesting areas for the Bald Eagle, Interior Least Tern, and the Piping
Plovers and the migration corridor for the Eskimo Curlew. Reptiles and mammals listed include the
Massasuga (a type of rattlesnake) and the River Otter. Norfolk is also within the potential habitat for two
endangered plants: the Small White Lady’s Slipper and the Western Prairie-fringed Orchid. As part of
the original risk assessment completed for the site during the EE/CA, the potential for ecological
impacts was assessed and it was determined, because the site is located near the middle of downtown
Norfolk, it is not expected that MGP-related contamination will impact any of these species.
25
Human Health Conceptual Site Model – OU 1
The human health conceptual site model integrated and summarized the information concerning sources, constituent migration pathways and
exposure routes into a combination of exposure pathways. The human health conceptual site model identified the key potential release
mechanisms, transport media, exposure points, exposure media, exposure routes and potential receptors for the Site.
26
8.3
Basis for Remedial Action
The response action selected in this ROD is necessary to protect public health or welfare or the
environment from actual or threatened releases of hazardous substances into the environment. BTEXs
and PAHs have impacted soil at the site. The COCs contained in the source area soils at OU 1 are
migrating into the groundwater and presenting a threat to the drinking water aquifer. The selected
remedy for OU 1 will prevent the migration of COCs in soil that would result in groundwater
contamination above levels that are protective of beneficial use (i.e., drinking water use) and will
minimize the further migration of COCs from the DNAPL area to the groundwater plume.
9.0
Remedial Action Objectives
Remedial action objectives (RAOs) consist of medium-specific or location-specific goals for protecting
human health and the environment. RAOs provide a general description of what the cleanup will
accomplish (e.g., restoration of ground water to drinking water levels). These goals typically serve as the
design basis for the remedy. Discussion of RAOs provides a basis for evaluating the cleanup options for
the Site and an understanding of how the risks identified in the previous section will be addressed by the
response action. The RAOs also serve to facilitate the FYR determination of protectiveness of human
health and the environment.
The RAOs for OU 1 are:
•
Prevent exposure via inhalation of COCs through vapor intrusion from soil gas that exceed the
10-6 cancer risks and/or a hazard of 1 for non-cancer risks.
•
Prevent incidental ingestion, dermal contact, and inhalation of airborne particulates of COCs
from source materials that exceed the 10-6 cancer risks and/or a hazard index of 1 for non-cancer
risks.
•
Prevent the migration and leaching potential of COCs in soil that would result in groundwater
contamination above levels that are protective of beneficial use (i.e., drinking water use).
•
Minimize the further migration of COCs from the DNAPL area to the groundwater plume.
The Selected Remedy for OU 1 will prevent the continued migration of COCs from contaminated soils
to groundwater by reducing the soil concentrations to below the cleanup levels for benzene and
naphthalene which are 52 micrograms per kilogram (µg/kg) and 7.6 µg/kg, respectively. Benzene and
naphthalene have the greatest potential to leach to groundwater based on the leachability study
conducted at the site. These cleanup levels were derived from the maximum contaminant level (MCL)based protection of groundwater soil screening level (SSL) for benzene and the risk-based SSL for
naphthalene published in the May 2020 Regional Screening Level table that was then multiplied by a
dilution attenuation factor (DAF) of 20. The screening level protective of groundwater for benzene in
soil is 2.6 µg/kg and for naphthalene is 0.38 µg/kg. From the SSL Guidance, the DAF of 20 was selected
using a weight of evidence approach which considers the EPA’s Composite Model for Leachate
Migration with Transformation and results applying the SSL dilution model to 300 groundwater sites
across the United States. Concentrations exceeding the cleanup levels of 52 µg/kg and 7.6 µg/kg for
both benzene and naphthalene, respectively, were detected throughout the unsaturated zone to the top of
the water table at approximately 12 feet bgs. The OU 1 remedial action will also reduce concentrations
of toluene to 13,800 µg/kg, ethylbenzene to 45,600 µg/kg, total xylenes to 633,000 µg/kg and
27
benzo(a)pyrene to 4,800 µg/kg. The OU 1 remedial action will reduce the inhalation exposure to
building occupants from COCs in soil gas, originating from source materials, above levels determined to
present a human health risk from soil gas to building occupants.
There are no federal or state cleanup standards for benzene and naphthalene soil contamination.
Therefore, the EPA established site-specific cleanup levels for soil. The site-specific cleanup levels for
soil will prevent the continued migration of benzene and naphthalene from soil to groundwater.
10.0
Description of Alternatives
This section provides a brief explanation of the remedial alternatives developed for OU 1. The
numbering of the alternatives in the Proposed Plan and in this ROD were revised to Alternatives 1
through 4 which differ from the FS Report, Rev. 4. Capital costs are those expenditures that are required
to construct a remedial alternative. Operation and maintenance (O&M) costs are those post-construction
costs necessary to ensure or verify the continued effectiveness of a remedial alternative and are
estimated on an annual basis. Present-worth cost is the amount of money if invested in the current year,
would be sufficient to cover all the costs over time associated with the project, calculated using a
discount rate of seven percent. Construction time is the time required to construct and implement the
alternative and does not include the time required to design the remedy or procure contracts for design
and construction.
The description of each alternative in this section contains information so that the comparative analysis
of alternatives in the next section of the ROD can focus on the differences or similarities among
alternatives with respect to the nine evaluation criteria pursuant to the NCP § 300.430(e)(9).
OU 1 Remedial Alternatives
No Action Alternative
Alternative 1 – No Action
Estimated Capital Cost: $0
Estimated O&M Cost: $0
Estimated Present-Worth Cost: $0
Estimated Construction Timeframe: None
Estimated Time to Attain RAOs: Does not meet RAOs
In accordance with 40 C.F.R. § 300.430(e)(6), the NCP requires that the EPA consider the “no action”
alternative against which other remedial alternatives can be compared. Under this alternative, no
remedial actions will be conducted. No attempts will be made to monitor or control exposure to
contaminants. If this alternative was implemented, the RAOs would not be achieved. In addition,
applicable or relevant and appropriate requirements (ARARs) would not be met. This alternative will
not be given further consideration.
Alternative 2 – Soil Excavation, In-situ Chemical Oxidation
Estimated Capital Cost: $9,640,000
Estimated O&M Cost: $770,000
Estimated Present-Worth Cost: $10,410,000
28
Estimated Construction Timeframe: 1 year
Estimated Time to Attain RAOs: 5 years
Alternative 2 consists of excavation and off-site disposal of the soil from the vadose zone and using insitu chemical oxidation (ISCO) to address the DNAPL in the saturated zone. The depth of the soil
excavation would be dependent on the water table level at the time of the remedial action. Most recent
water level measurements at the site indicate the depth to water is around 15 feet bgs. The excavated
area would be backfilled with clean, compacted fill material to within 2 feet of final grade. The
remaining 2 feet would be backfilled with compacted gravel and concrete or asphalt.
ISCO would involve injecting a chemical oxidant into the subsurface to directly treat and reduce the
DNAPL contaminant mass in the saturated zone. The oxidation reaction occurs wherever there is contact
between the oxidant and organic contaminants. Common oxidizing agents include ozone, hydrogen
peroxide, potassium permanganate, persulfate, and Fenton’s reagent (hydrogen peroxide and iron).
Alternative 3 – Thermally Enhanced Soil Vapor Extraction
Estimated Capital Cost: $9,300,000
Estimated O&M Cost: $1,300,000
Estimated Present-Worth Cost: $10,600,000
Estimated Construction Timeframe: 1 year
Estimated Time to Attain RAOs: 5 years
Alternative 3 involves using thermally enhanced soil vapor extraction (SVE) to address the vadose zone
contamination and ISCO for weathering DNAPL in the saturated zone. The application of ISCO under
this alternative would be essentially the same as for Alternative 2, less aggressive monitoring/mitigation
is expected as the multiple vapor extraction wells installed to collect VOCs would draw them away from
the adjacent building.
Thermally enhanced SVE vary from ISTT such that the vapor extraction process can be enhanced from
applying heat at lower temperatures (e.g., <100°C) and requires less energy to operate. The entire
subsurface does not need to be evenly heated as the main mechanism for contaminant removal is
through vacuum extraction. Thermally enhanced SVE will also promote the natural degradation of
contaminants in soil through increased oxygen and temperature.
Once extracted, the contaminated vapors are treated prior to releasing to atmospheric air. Common
treatment technologies for off gas are granulated activated carbon (GAC) absorption and catalytic or
thermal oxidation. The thermal system would be operated for a minimum of 6 months and the SVE
system would be operated during the heating period and possibly up to two years to extract contaminants
during the soil cool off period.
Alternative 4 – In-Situ Thermal Treatment
Estimated Capital Cost: $7,590,000
Estimated O&M Cost: $310,000
Estimated Present-Worth Cost: $7,900,000
Estimated Construction Timeframe: 2-3 months
Estimated Time to Attain RAOs: 4 years
29
Alternative 4 would include treating both the unsaturated and saturated zones with ISTT which involves
heating the subsurface to temperatures around 100°C to destroy or remove contaminants. The heat
vaporizes VOCs and reduces the viscosity of DNAPL, so it moves more easily through soil for
collection or destroys VOCs in-situ through pyrolysis. There are multiple thermal treatment options
including electrical resistance heating (ERH), thermal conductive heating (TCH) and steam enhanced
extraction (SEE).
In a typical ERH application, an electric current is passed through electrodes installed within the
contaminated zone to increase the temperature of the soil. The increase in temperature raises the vapor
pressure of both VOCs and SVOCs, resulting in volatilization and recovery. With TCH, the subsurface
temperature is increased through conductive heat transfer. Heat is applied to the subsurface through
vertical rods that contain electrically powered heating elements. SEE achieves subsurface heating
through steam injection into wells and extraction of hot fluids from multi-phase extraction wells. SEE
provides a mass transfer pathway of DNAPL through the steam injection so it can be collected through
extraction wells. Extracted DNAPL and vapor phase organics are treated through catalytic or thermal
oxidation, chemical oxidation, or GAC absorption; DNAPL may also be disposed of off-site.
Heat would be applied to the subsurface for at least 6 months. The off gas and collected DNAPL would
be periodically sampled and tested to determine the effectiveness of treatment and when it is considered
complete. “Hot” testing of soil can also be completed during treatment to determine the effectiveness.
Soil sampling would be performed post-treatment for additional confirmation of effectiveness, after the
subsurface is allowed to cool for 6 to 8 months.
Common Elements and Distinguishing Features of Each Alternative
Alternatives 2 through 4 for OU 1 include common elements. These common elements apply to all
alternatives, except the “No Action” alternative. The common elements for OU 1 include vapor
monitoring and mitigation, institutional controls (ICs), groundwater sampling and performance
monitoring. Vapor monitoring during the remediation would verify that the community and adjacent
building occupants are protected. ICs are non-engineered instruments, such as administrative and legal
controls, that help minimize the potential for exposure to contamination and/or protect the integrity of
the response action. The BHE and NPPD parcels have ECs in place which detail activity and use
limitations to be protective of human health and the environment. An additional EC may be warranted to
minimize potential exposures to any remaining heavy PAHs within the alley where the utility corridor is
located.
11.0
Summary of Comparative Analysis of Alternatives
Section 300.430(f)(5)(i) of the NCP requires that the EPA evaluate and compare the remedial cleanup
alternatives based on the nine evaluation criteria listed below. The first two criteria, overall protection of
human health and the environment and compliance with ARARs are threshold criteria that must be met
for the Selected Remedy. The Selected Remedy must then represent the best balance of the following
five primary balancing criteria: long-term effectiveness and permanence; reduction of toxicity, mobility
or volume of contaminants through treatment; short-term effectiveness; implementability and cost. The
final two criteria, state and community acceptance are referred to as modifying criteria. The table below
provides a breakdown of capital, O&M, and periodic cost for the alternatives. Table 1 in Appendix E
presents a summary of the comparative analysis using a qualitative rating system to assess the degree to
which each alternative satisfies the threshold and balancing criteria.
30
11.1
Overall Protection of Human Health and the Environment
This threshold criterion addresses whether each alternative provides adequate protection of human
health and the environment and describes how risks posed through each exposure pathway are
eliminated, reduced, or controlled, through treatment, engineering controls, and/or ICs.
All the alternatives, except the no-action alternative, are protective of human health and the environment
by eliminating, reducing, or controlling risks through treatment or removal of contaminated soil and
DNAPL. As a result, the no action alternative was eliminated from consideration under the remaining
eight evaluation criteria.
Alternatives 2, 3 and 4 would be protective of human health and the environment because they would
reduce the risk of human contact by removing contaminants from the unsaturated zone and treating
(weathering) the DNAPL in the saturated zone, subsequently reducing contaminant migration from the
source materials. Alternatives 2, 3 and 4 would achieve RAOs by preventing the migration and leaching
potential of COCs in soil that would result in groundwater contamination above levels that are protective
of beneficial use (i.e., drinking water use) and will minimize the further migration of COCs from the
DNAPL area to the groundwater plume. Reducing soil concentrations will also reduce the inhalation
exposure to building occupants to COCs in soil gas, originating from contaminated soil.
11.2
Compliance with Applicable or Relevant and Appropriate Requirements
This threshold criterion addresses whether an alternative will comply with federal and state
environmental statutes, regulations and other requirements that pertain to the site or whether a waiver is
justified. Section 121(d) of CERCLA and NCP § 300.430(f)(1)(ii)(B) require that remedial actions at
CERCLA sites at least attain legally applicable or relevant and appropriate requirements referred to as
“ARARs,” unless such ARARs are waived under CERCLA section 121(d)(4).
“Applicable requirements” are those cleanup standards, standards of control, and other substantive
requirements, criteria, or limitations promulgated under federal environmental or state environmental or
facility siting laws that specifically address a hazardous substance, pollutant, contaminant, remedial
action, location, or other circumstance found at a CERCLA site. Only those state standards that are
identified by a state in a timely manner and that are more stringent than federal requirements may be
applicable. “Relevant and appropriate requirements” are those cleanup standards, standards of control,
and other substantive requirements, criteria, or limitations promulgated under Federal environmental or
State environmental or facility siting laws that, while not “applicable” to a hazardous substance,
pollutant, contaminant, remedial action, location, or other circumstance at a CERCLA site address
problems or situations sufficiently similar to those encountered at the CERCLA site that their use is
well-suited to the particular site. Only those state standards that are identified in a timely manner and are
more stringent than federal requirements may be relevant and appropriate.
Alternatives 2, 3 and 4 would meet their respective ARARs from federal and state laws. The ARARs for
this action are outlined in Appendix F of this ROD.
11.3
Long-Term Effectiveness and Permanence
This criterion evaluates expected residual risk and the ability of a remedy to maintain reliable protection
of human health and the environment over time once clean-up levels have been met. This criterion
31
includes the consideration of residual risk that will remain on-site following remediation and the
adequacy and reliability of controls.
Alternatives 2 rates moderate regarding long-term effectiveness because excavated soils would not be
destroyed, they would be moved to a permitted landfill. The intent of the ISCO under Alternative 2
would be to treat the entire mass of contaminants, it may be difficult to ensure that all DNAPL has been
addressed and that chemicals do not become soluble and contribute to the dissolved phase groundwater
plume. Alternative 3 rates low-to-moderate for long-term effectiveness. Even with closely spaced vapor
extraction wells, all heavier PAHs throughout the vadose zone may not be removed. Alternative 4 rates
high for long-term effectiveness since ISTT is highly effective at removing and destroying VOCs and
heavy PAHs and other SVOCs from both the vadose and saturated soils.
11.4
Reduction of Toxicity, Mobility, or Volume Through Treatment
This criterion evaluates an alternative’s use of treatment to reduce the harmful effects of principal
contaminants; the degree of expected reduction in toxicity, mobility, or volume; the type and quantity of
treatment residuals; the degree to which the treatment will be irreversible; and the number of residuals.
Alternative 2 rates moderate since excavation and disposal of soil contamination will not reduce the
toxicity, mobility, or volume of contaminants through treatment. ISCO would reduce the volume of
toxicity of the contamination through oxidation. Alternative 3 rates moderate since the application of
thermally enhanced SVE would reduce the mobility and volume of contamination in the vadose zone but
it is likely some residual contamination would remain consisting primarily of the heavier PAHs and tar
components. Alternative 4 rates high since ISTT would substantially reduce the toxicity, mobility, and
volume of contamination in the vadose and saturated zones by either destroying or capturing VOCs and
DNAPL through extraction wells.
11.5
Short-Term Effectiveness
This criterion evaluates the short-term risks that might be posed to the community, to workers and to the
environment during construction and operation of the remedy until cleanup levels are achieved.
Alternatives 2, 3 and 4 rate moderate for short-term effectiveness. Exposure risks for remedial action
workers and adjacent populations during implementation of all alternatives evaluated are minimal and
can be easily monitored and controlled with appropriate health and safety procedures.
11.6
Implementability
This criterion evaluates the technical and administrative feasibility of a remedy from design through
construction and operation. Factors such as availability of services and materials, administrative
feasibility, and coordination with other governmental entities are also considered.
Alternatives 2 rates low for implementability due to the difficulty of the excavation portion of the
alternative because of the presence of multiple utilities and an adjacent building and the need to close 7th
Street during implementation. Alternatives 3 and 4 rate low to moderate for implementability.
Alternative 3 would be readily implementable using mostly conventional drilling and probing
equipment. Implementation of Alternative 4 would be complicated due to infrastructure and access from
multiple property owners, the technology is routinely implemented in areas with significant
infrastructure and heavily trafficked areas, as well as below buildings.
32
11.7
Cost
This criterion evaluates the estimated capital costs, O&M costs, and present-value costs of each
alternative. Total costs for each alternative consist of direct capital costs, indirect capital costs and O&M
costs. Direct capital costs are those directly attributable to construction activity, such as materials, labor,
and equipment. Indirect capital costs are administrative and overhead expenses associated with
construction activity and may include engineering expenses, licenses and permits and contingency
allowances. O&M costs are post-construction expenses that are necessary to ensure the effectiveness of
the remedial action.
The estimated present worth cost for Alternative 3 is the highest, and the estimated present worth cost of
Alternative 4 is the lowest. The O&M costs for Alternative 3 are the highest and are lowest for
Alternative 4. The main differences in costs are related to the capital costs for construction and
implementation for Alternatives 2, 3, and 4.
Cost estimates are expected to be accurate within a range of +50 to -30 percent.
Capital Cost
O&M Cost (annual)
Present-Worth Cost
Estimated Construction
Timeframe
Estimated Time to
Attain RAOs
11.8
Cost Comparisons of Remedial Alternatives
Alternative 1
Alternative 2
Alternative 3
$0
$9,640,000
$9,300,000
$0
$770,000
$1,300,000
$0
$10,410,000
$10,600,000
Alternative 4
$7,590,000
$310,000
$7,900,000
None
1 year
1 year
2-3 months
Does not meet
RAOs
5 years
5 years
4 years
State/Support Agency Acceptance
This criterion considers whether the state, based on its review of the information, concurs with, opposes,
or has no comment on the EPA’s Preferred Alternative. The state of Nebraska, as represented by the
NDEE, concurs with the Selected Remedy, Alternative 4, as outlined in the Proposed Plan for the Site.
The NDEE provided a letter of concurrence which is in Appendix G.
11.9
Community Acceptance
This criterion considers whether the local community agrees with the EPA’s analyses and Preferred
Alternative. Comments received on the Proposed Plan are important indicators of community
acceptance.
The Proposed Plan with the Preferred Alternative for remediating OU 1 was made available to the public
on April 25, 2022, and a public comment period was held from April 25, 2022, to May 24, 2022. During
the public comment period, the EPA solicited comments from the public at a virtual public meeting on
May 3, 2022. The EPA also encouraged the public to submit comments through other forms of
communication, including traditional mail, electronic mail, telephone, and internet submission via the
site profile page. No comments were submitted during the public comment period. Community
acceptance of the Preferred Alternative was evaluated after the public comment period ended. Based on
the evaluation, the community is supportive of Alternative 4, ISTT.
33
12.0
Principal Threat Wastes
The NCP establishes an expectation that the EPA will use treatment to address the principal threats
posed by a site wherever practicable (40 C.F.R. § 300.430(a)(1)(iii)(A)). Identifying principal threat
wastes combines concepts of both hazard and risk. In general, principal threat wastes are those source
materials considered to be highly toxic or highly mobile which generally cannot be contained in a
reliable manner or would present a significant risk to human health, or the environment should exposure
occur. Conversely, non-principal threat wastes are those source materials that generally can be reliably
contained and that would present only a low risk in the event of exposure. The way the principal threats
are addressed will determine whether the statutory preference for treatment as a principal element is
satisfied.
The source area contamination associated with OU 1 is “principal threat waste” because of the presence
of DNAPL. The DNAPL constitutes a principal threat waste as it is source material that acts as a
reservoir for migration of contamination to groundwater.
13.0
Selected Remedy
This section expands upon the details of the Selected Remedy for OU 1 from that which was provided in
the Description of Alternatives section of the ROD. This section provides the appropriate level of detail
about the engineering details and estimated costs for the Selected Remedy so that the design engineer
has enough information to initiate the design phase of the response action. This will minimize the
likelihood of unanticipated changes to the scope and intent of the Selected Remedy. This discussion is
organized into four sections: (1) Summary of the Rationale for the Selected Remedy (2) Description of
the Selected Remedy, (3) Summary of Estimated Remedy Costs, and (4) Expected Outcomes of Selected
Remedy.
13.1
Summary of the Rationale for the Selected Remedy
Alternative 4 was selected over the other alternatives because it is expected to achieve RAOs in a short
timeframe and will prevent the migration of COCs in soil that would result in groundwater
contamination above levels that are protective of beneficial use (i.e., drinking water use) and will
minimize the further migration of contaminants from the DNAPL area to the groundwater plume.
Alternative 4 will reduce contaminant concentrations within the source area soils to meet the cleanup
levels for benzene of 52 µg/kg and naphthalene of 7.6 µg/kg. These two contaminants have the highest
potential to leach to groundwater. ISTT is a proven treatment technology that is effective in removing
and destroying VOCs from both the vadose and saturated zones within the low-permeability alluvium
material of clays and silts. ISTT could remove up to 99% of the VOCs and up to 75-85% of heavy PAHs
and DNAPL. The remaining heavier PAHs will be immobile following treatment and would not
continue impacting groundwater.
Based on the information currently available, the EPA and NDEE believe the Selected Remedy meets
the threshold criteria and provides the best balance of tradeoffs among the other alternatives with respect
to the balancing and modifying criteria. The EPA expects the Selected Remedy to satisfy the following
statutory requirements of CERCLA § 121(b): 1) be protective of human health and the environment; 2)
comply with ARARs; 3) be cost effective; and 4) utilize permanent solutions and alternative treatment
technologies to the maximum extent practicable.
34
13.2
Description of the Selected Remedy
The Selected Remedy includes ISTT which could include the use of either or a combination of ERH,
SEE or TCH. Alternative 4 involves heating the subsurface to volatilize contaminants for vapor removal
from the subsurface. The heat vaporizes VOCs and reduces the viscosity of DNAPL, so it moves more
easily though soil for collection or destroys VOCs in-situ through pyrolysis. While ERH can be used to
treat contamination in both the unsaturated and saturated zones, SEE is only applicable to saturated zone
and TCH is only applicable to the unsaturated zone.
In a typical ERH application, an electric current is passed through electrodes installed within the
contaminated zone to increase the temperature of the soil. The increase in temperature to around 100°C
raises the vapor pressure of both VOCs and SVOCs, resulting in volatilization and recovery. SEE
achieves subsurface heating through steam injection into wells and extraction of hot fluids from multiphase extraction wells. In addition, SEE provides a mass transfer pathway of DNAPL through the steam
injection so it can be collected through extraction wells. ERH is generally more suitable for lower
permeability soils while SEE is more applicable in higher permeability materials so the steam can
propagate through the soil. With TCH, the subsurface is heated through vertical rods that contain
electrically powered heating elements. TCH technologies can heat the subsurface to temperatures up to
700°C; however, ISTT vendors indicate heating the subsurface to 300°C should be sufficient. Extracted
DNAPL and vapor phase organics are treated through catalytic or thermal oxidation, chemical oxidation,
or GAC adsorption; DNAPL may also be transported off-site for disposal.
It is expected that a combination of ISTT technologies would be implemented to address OU 1 at the
site. Directional or angled drilling may be required to treat the DNAPL plume located underneath the
buildings or the railroad tracks east of 7th Street. While closure of 7th Street may not be required as the
thermal treatment equipment could be installed below grade, closure could simplify the installation and
operation process.
Heating the subsurface will impact the integrity of the communications duct, its contents, and the gas
line in the alley. These utilities will need to be either relocated or protected during heating to implement
this alternative. The utilities could be protected by placing thermal insulation around the lines or water
quenching of the material around the line to prevent heating the subsurface. A combination of the
protection methods could be used along with operating the system to avoid heating the area containing
these utilities.
Thermostats monitor the distribution of heat in the subsurface to ensure the temperature of the
subsurface reaches 100°C. Heat would be applied to the subsurface for approximately 6 months. The off
gas and collected DNAPL will be periodically sampled and tested to determine the effectiveness of
treatment. “Hot” testing of the soil can also be completed during treatment to determine effectiveness.
Soil sampling would also be performed post-treatment for additional confirmation of effectiveness, after
the subsurface cools for six to eight months.
At least two years of quarterly groundwater monitoring will be conducted after the completion of
treatment operations to monitor the effectiveness of the ISTT in enhancing the degradation of the
downgradient dissolved phase plume.
Vapor mitigation measures are inherent in the application of the ISTT and include surface capping of the
treatment area and capturing and treating off-gas. To further mitigate the vapor intrusion risk, an active
sub-slab ventilation system will be installed to protect the occupants of the building. To verify that
35
mitigation measures are protective, weekly soil gas sampling and indoor air monitoring will be
conducted throughout the operations period and at least during the initial stages of the cool down period.
Alternative 4 construction can likely be completed in two to three months and achieve RAOs in
approximately four years.
OU 1 Source Materials
The estimated extent and volumes of source materials is presented below.
Soil Area
The overall area of contaminated soil is 19,400 square feet. Figure 6 depicts the soil contamination
footprint. The volumes of contaminated soil by depth areas as follows:
• 0-15 feet: 3,000 cubic yards (alley and 7th Street right of way)
• 3-15 feet: 5,300 cubic yards (NPPD property)
• 11-15 feet: 1,900 cubic yards (BHE property)
DNAPL Area
The overall area containing DNAPL is 52,000 square feet. Figure 7 depicts the DNAPL footprint. The
volumes of DNAPL impacted areas are as follows:
• 15-35 feet: 9,200 cubic yards
• 17-25 feet: 5,900 cubic yards
• 22-25 feet: 2,500 cubic yards
• 27-35 feet: 1,400 cubic yards
• 31-32 feet: 140 cubic yards
13.3
Summary of the Estimated Remedy Costs
The information in this cost estimate summary table is based on the best available information regarding
the anticipated scope of the remedial alternative. Changes in the cost elements may occur because of
new information and data collected during the engineering design of the remedial alternative. Major
changes may be documented in the form of a memorandum in the AR file, an explanation of significant
differences or a ROD Amendment. This is an order-of-magnitude engineering cost estimate that is
expected to be within +50 to -30 percent of the actual project cost.
The cost estimates for all the remedial alternatives, including the Selected Remedy, to address the source
materials at OU 1 are documented in the FS Report, Rev. 4.
Cost Estimate for Selected Remedy – Alternative 4
Estimated Capital Cost: $7,590,000
Estimated O&M Cost: $310,000
Estimated Present-Worth Cost: $7,900,000
13.4
Expected Outcomes of the Selected Remedy
The Selected Remedy for OU 1 is ISTT. This remedy will: 1) be protective of human health and the
environment; 2) comply with ARARs; 3) be cost effective; and 4) utilize permanent solutions and
alternative treatment technologies to the maximum extent practicable. The Selected Remedy is expected
to achieve the RAOs identified for this OU. The RAOs include:
36
•
Prevent exposure via inhalation of COCs through vapor intrusion from soil gas that exceed the
10-6 cancer risks and/or a hazard index of 1 for non-cancer risks.
•
Prevent incidental ingestion, dermal contact, and inhalation of airborne particulates of COCs
from source materials that exceed the 10-6 cancer risks and/or a hazard index of 1 for non-cancer
risks.
•
Prevent the migration and leaching potential of COCs in soil that would result in groundwater
contamination above levels that are protective of beneficial use (i.e., drinking water use).
•
Minimize the further migration of COCs from the DNAPL area to the groundwater plume.
The Selected Remedy for OU 1 will attain RAOs in approximately four years.
14.0
Statutory Determinations
Under CERCLA §121 and the NCP, the lead agency must select remedies that are protective of human
health and the environment, comply with ARARs (unless a statutory waiver is justified), are costeffective, and utilize permanent solutions and alternative treatment technologies or resource recovery
technologies to the maximum extent practicable. CERCLA includes a preference for remedies that
employ treatment that permanently and significantly reduces the volume, toxicity, or mobility of
hazardous wastes as a principal element and a bias against off-site disposal of untreated wastes. The
following sections discuss how the Selected Remedy for OU 1 will meet these statutory requirements.
14.1
Protection of Human Health and the Environment
The Selected Remedy for OU 1, Alternative 4, will protect human health and the environment by
treating the contaminated source materials associated with the site. The Selected Remedy for OU 1 will
prevent the inhalation exposure to COCs through vapor intrusion from soil gas and will prevent
incidental ingestion, dermal contact, and inhalation of airborne particulates of COCs from source
materials. The ISTT will significantly reduce the overall contaminant mass in the unsaturated and
saturated zones and should substantially decrease the release of chemicals to the dissolved phase
contaminant plume. The treatment of the contaminated soil in the unsaturated zone will prevent the
migration and leaching potential of COCs in soil that would result in groundwater contamination above
levels that are protective of beneficial use (i.e., drinking water use). The Selected Remedy for OU 1 will
also minimize the further migration of COCs from the DNAPL area to the groundwater plume.
The Selected Remedy is protective of human health and the environment as it will reduce the risk of
human contact by removing most VOCs and SVOCs from the unsaturated zone and substantially
treating the DNAPL in the saturated zone subsequently reducing contaminant migration from the source.
14.2
Compliance with ARARs
Section 121(d)(2) of CERCLA; 42 U.S.C. 9621(d)(2); NCP, 40 C.F.R. Part 300; and guidance and
policy issued by the EPA require that remedial actions conducted under CERCLA achieve a degree or
level of cleanup which, at a minimum, attains any standard, requirement, criteria or limitation under any
federal environmental law or any promulgated standard, requirement, criteria or limitation under a state
environmental or facility siting law that is more stringent than any federal standard is legally applicable
to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under
37
the circumstances of the release or threatened release of such hazardous substance or pollutant or
contaminant. The identified standards, requirements, criteria, or limitations thus adopted from other
environmental laws, which govern on-site cleanup activities at this site, are referred to as ARARs.
For on-site cleanup activities under Section 121(e)(1) of CERCLA, the EPA is not required to obtain
any federal, state, or local permits. For action conducted on-site, the Selected Remedy will comply with
the substantive (non-administrative) requirements of the identified federal and state laws.
The Selected Remedy of ISTT will comply with all ARARs in Appendix F.
14.3
Cost-Effectiveness
In the lead agency’s judgment, the Selected Remedy is cost-effective and represent a reasonable value
for the money to be spent. In making this determination, the following definition was used: “A remedy
shall be cost-effective if its costs are proportional to its overall effectiveness.” (NCP §
300.430(f)(1)(ii)(D)). This was accomplished by evaluating the “overall effectiveness” of those
alternatives that satisfied the threshold criteria (i.e., were both protective of human health and the
environment and ARAR-compliant). Overall effectiveness was evaluated by assessing three of the five
balancing criteria in combination (long-term effectiveness and permanence; reduction in toxicity,
mobility, and volume through treatment; and short-term effectiveness). Overall effectiveness was then
compared to costs to determine cost-effectiveness. The relationship of the overall effectiveness of this
remedial alternative was determined to be proportional to its costs and hence this alternative represents a
reasonable value for the money to be spent.
The estimated present worth cost of the Selected Remedy for OU 1 is $7,900,000. Alternative 4 is the
least expensive remedy evaluated for OU 1. Appendix E, Table 25 of the ROD presents the presentworth cost estimate for the Selected Remedy for OU 1, Alternative 4. The information in the cost
estimate is based on the best available information regarding the Selected Remedy.
14.4
Utilization of Permanent Solutions and Alternative Treatment (or Resource Recovery)
Technologies to the Maximum Extent Practicable (MEP)
The EPA has determined that the Selected Remedy represents the maximum extent to which permanent
solution and treatment technologies can be utilized in a practicable manner at the Site. Of those
alternatives that are protective of human health and the environment and comply with ARARs, the EPA
has determined that the Selected Remedy provides the best balance of trade-offs in terms of the five
balancing criteria, while also considering the statutory preference for treatment as a principal element
and bias against off-site treatment and disposal and considering State and community acceptance.
The Selected Remedy will address OU 1 source materials and will achieve significant reductions in
COC concentrations in soil, preventing the continued migration of contamination into groundwater. The
Selected Remedy will also minimize the further migration of COCs from the DNAPL area to the
groundwater plume.
14.5
Preference for Treatment as a Principal Element
By treating the contaminated soils and DNAPL by ISTT, the Selected Remedy addresses principal
threats posed by the site using treatment technologies. By utilizing treatment as a significant portion of
38
the remedy, the statutory preference for remedies that employ treatment as a principal element is
satisfied.
14.6
Five-Year Review Requirements
Section 121(c) of CERCLA and the NCP § 300.430(f)(5)(iii)(C) provide the statutory and legal basis for
conducting FYRs. Because this remedy for OU 1 will result in hazardous substances, pollutants, or
contaminants remaining on-site above levels that allow for unlimited use and unrestricted exposure, a
statutory review will be conducted within five years after initiation of the remedial action to ensure the
remedy is, or will continue to be, protective of human health and the environment.
15.0
Documentation of Significant Changes
To fulfill CERCLA § 117(b) and NCP §§ 300.430(f)(5)(iii)(B) and 300.430(f)(3)(ii)(A), the ROD must
document and discuss the reasons for any significant changes made to the Selected Remedy. Changes
described in this section must be limited to those that could have been reasonably anticipated by the
public from the time the Proposed Plan and the RI/FS Report(s) were released for the public comment to
the final selection of the remedy. The Proposed Plan, which identified the Preferred Alternative for OU
1, was released for public comment in April 2022. The EPA received a letter of concurrence from
NDEE on May 3, 2022, which is included in Appendix G. It was determined that no significant changes
to the remedy for OU 1, as originally identified in the Proposed Plan, were necessary or appropriate.
39
PART III:
RESPONSIVENESS SUMMARY
This Responsiveness Summary has been prepared in accordance with the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act (SARA) and the National Contingency Plan (NCP) 40 C.F.R § 300.430(f).
The Proposed Plan and supporting documents included in the AR file were made available for public
review and comment from April 25, 2022, to May 24, 2022. A virtual public meeting was held on May
3, 2022, with several Norfolk community members in attendance. The public was supportive of the
Preferred Alternative for OU 1. There were no questions or comments received during the public
meeting that would suggest changes in or opposition to the Preferred Alternative. No written comments
from the local community were received during the public comment period. The NDEE sent a letter
concurring with the Preferred Alternative dated May 3, 2022, which is included in Appendix G. A copy
of the transcript from the public meeting is included in the AR file for the Site.
40
APPENDIX A
ACRONYMS
AOC
ARARs
AR
bgs
BHE
BLRA
BTEX
CERCLA
CERCLIS
COCs
COPC
CSM
DNAPL
DPT
EC
EE/CA
EPA
EPC
ERA
ERH
FMGP
FYR
HHRA
HI
ICs
ISTT
MCL
mg/kg
NCP
NDEE
NPL
NPPD
O&M
OU
PAHs
PRP
RAO
RD
RI/FS
RME
ROD
SARA
SEE
SVE
SVOCs
TCH
µg/kg
Administrative Settlement Agreement and Order on Consent
Applicable or Relevant and Appropriate Requirements
Administrative Record
below ground surface
Black Hills Energy
Baseline Risk Assessment
Benzene, Toluene, Ethylbenzene, Total Xylenes
Comprehensive Environmental Response, Compensation and Liability Act
Comprehensive Environmental Response, Compensation and Liability Information
System
Contaminants of Concern
Contaminant of Potential Concern
Conceptual Site Model
Dense Nonaqueous Phase Liquid
Direct push technology
Environmental Covenant
Engineering Evaluation/Cost Analysis
U.S. Environmental Protection Agency
Exposure Point Concentration
Ecological Risk Assessment
Electrical resistance heating
Former Manufactured Gas Plant
Five-Year Review
Human Health Risk Assessment
Hazard Index
Institutional Controls
In Situ Thermal Treatment
Maximum Contaminant Level
milligram per kilogram
National Oil and Hazardous Substance Pollution Contingency Plan
Nebraska Department of Environment and Energy
National Priorities List
Nebraska Public Power District
Operation and Maintenance
Operable Unit
Polycyclic Aromatic Hydrocarbons
Potentially responsible party
Remedial Action Objective
Remedial Design
Remedial Investigation/Feasibility Study
Reasonable maximum exposure
Record of Decision
Superfund Amendments and Reauthorization Act
Steam enhanced extraction
Soil vapor extraction
Semi-Volatile Organic Compounds
Thermal conductive heating
micrograms per kilogram
VI
VOC
Vapor Intrusion
Volatile Organic Compound
APPENDIX B
GLOSSARY OF TERMS
Administrative Record: The body of documents the EPA uses to form the basis for selection of a
response.
Applicable or Relevant and Appropriate Requirements (ARARs): Section 121(d)(2)(A) of CERCLA
incorporates into law the CERCLA Compliance Policy, which specifies that Superfund remedial actions
meet any Federal standards, requirements, criteria, or limitations that are determined to be legally
applicable or relevant and appropriate requirements. Also included in the provision is State ARARs
must be met if they are more stringent than Federal requirements.
Capital Costs: Expenses related to the labor, equipment, and material costs of construction.
Carcinogenic (cancer) Risk: Carcinogenic risks are probabilities usually expressed in scientific notation
(e.g., 1 x 10-6). An excess carcinogenic risk of 1 x 10-6 indicates that an individual experiencing the
reasonable maximum exposure estimate has a 1 in 1,000,000 chance of developing cancer because of a
site-related exposure.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Enacted by
Congress in 1980 to give the federal government the authority to clean up hazardous waste sites and
established the Hazardous Substance Trust Fund, commonly called Superfund, to pay for cleanups.
Cleanup Levels: Medium- and contaminant-specific goals set to be achieved because of the RAOs (e.g.,
treatment of contaminated groundwater to MCLs.)
Contaminant of Concern (COC): The chemical substances found at the site at concentrations that may
pose an unacceptable risk to human health and the environment.
Feasibility Study (FS): The report that presents the identification and evaluation of the most appropriate
technical approaches to address contamination problems at a Superfund site.
Hazard Index (HI): The hazard index serves as a conservative summary of pathway and receptor noncancer risks. A hazard index of 1 or lower means toxics are unlikely to cause adverse non-cancer health
effects over a lifetime of exposure. However, a hazard index greater than 1 doesn’t necessarily mean
adverse effects are likely. The EPA evaluates this on a case-by-case basis.
Maximum Contaminant Level (MCL): Established by the Safe Drinking Water Act as the maximum
permissible level of a contaminant in water which is delivered to any user of a public water system.
National Oil and Hazardous Substances Pollution Contingency Plan (NCP): The federal governments
blueprint for responding to both oil spills and hazardous substance releases.
National Priorities List (NPL): The EPA’s list of the most serious uncontrolled or abandoned hazardous
waste sites identified for possible long-term remedial response.
Operable Unit (OU): A distinct portion of a Superfund site or a distinct action at a Superfund site. An
operable unit may be established based on a particular type of contamination, contaminated media (e.g.,
soil, water), source of contamination, and/or some physical boundary or restraint.
Operation and Maintenance Costs (O&M): The cost and time frame of operating labor, maintenance,
materials, energy, disposal, and administrative components of the remedy.
Present Worth Cost: The present worth of a future investment or payment that is calculated using a
predetermined discount or interest rate. Present Worth Cost is the amount of money, which is invested in
the current year, would be sufficient to cover all the costs over time associated with a remedial action.
Proposed Plan: A document requesting public input on a proposed remedial alternative.
Record of Decision (ROD): A document which is a consolidated source of information about the site,
the remedy selection process, and the selected remedy for a cleanup under CERCLA.
Reference dose levels: An estimate of a daily oral exposure to the human population, including sensitive
subpopulations, that is likely to be without an appreciable risk of adverse health effects during a lifetime.
Remedial Action: Action taken to clean up contamination at a site to acceptable standards.
Remedial Action Objectives (RAOs): General descriptions of what the cleanup will accomplish (e.g.,
prevent the migration of contamination in soil to groundwater).
Remedial Investigation (RI): A detailed study of a site. The RI may include an investigation of air, soil,
surface water, and groundwater to determine the source(s), types of contaminants, and extent of
contamination at a site.
Vapor Intrusion: Migration of hazardous vapors from any subsurface vapor source, such as
contaminated soil or groundwater, through the soil and into overlying buildings or structures.
Volatile Organic Compound (VOC): An organic compound which evaporates readily to the
atmosphere.
APPENDIX C
FIGURES
FIGURE 1 – Site Location Map
FIGURE 2 – Former Manufactrued Gas Plant Structures
FIGURE 3 – Non-Time Critical Removal Action Map
FIGURE 4 – Non-Time-Critical Removal Action Excavation Wall Confirmation Sample Locations
FIGURE 5 - Non-Time-Critical Removal Action Excavation Base Confirmation Sample Locations
FIGURE 6 - OU 1 Estimated Footprint of Source Material (Remaining Soil Contamination)
FIGURE 7 – OU 1 Dense Non-aqueous Phase Liquid Footprint
FIGURE 8 – Site Monitoring Well Location Map
FIGURE 9 – Groundwater Surface Elevation Map (June 2021)
FIGURE 10 – Benzene Isoconcentration Map (June 2021) “A” Level Wells
FIGURE 11 – Benzene Isoconcentration Map (June 2021) “B” Level Wells
FIGURE 12 – Naphthalene Isoconcentration Map (June 2021) “A” Level Wells
FIGURE 13 – Naphthalene Isoconcentration Map (June 2021) “B” Level Wells
FIGURE 14 – East Municipal Well Locations
FIGURE 15 - Geologic Cross-Section
FIGURE 16 – Conceptual Site Model
FIGURE 17 – Electrical Conductivity and Groundwater Probe Locations
FIGURE 18 – Soil Probe Locations
APPENDIX D
HOW IS HUMAN HEALTH RISK CALCULATED?
HOW IS HUMAN HEALTH RISK CALCULATED?
A Superfund Human Health Risk Assessment (HHRA) estimates the baseline risk. The baseline risk is
an estimate of the likelihood of developing cancer or non-cancer health effects if no cleanup action is
taken at a site. To estimate baseline risk at a Superfund site, the EPA undertakes a four-step process:
Step 1: Analyze Contamination
Step 2: Estimate Exposure
Step 3: Assess Potential Health Dangers
Step 4: Characterize Site Risk
In Step 1, the EPA looks at the concentrations of contaminants found at a site as well as past scientific
studies on the effects these contaminants have had on people (or animals, when human studies are
unavailable). Comparison between site-specific concentrations and concentrations reported in past
studies helps the EPA to determine which concentrations are most likely to pose the greatest threat to
human health.
In Step 2, the EPA considers the different ways that people might be exposed to contaminants identified
on Step 1, the concentrations that people might be exposed to, and the potential frequency and duration
of such exposure. Using this information, the EPA calculates a “reasonable maximum exposure”
scenario, which portrays the highest level of exposure that could reasonably be expected to occur.
In Step 3, the EPA use the information from Step 2 combined with information on the toxicity of each
chemical to assess potential risks. The EPA considers two types of risk: cancer and non-cancer. The
likelihood of any kind of cancer resulting from a site is generally expressed as an upper bound
probability (e.g., a “1 in 10,000 chance”). For every 10,000 people that could be exposed, one extra
cancer may occur as a result of exposure to site contaminants. An extra cancer case means that one more
person could get cancer than would normally be expected to from all other causes. For non-cancer health
effects, the EPA calculates a “hazard index” (HI). The key concept here is that a “threshold level”
(measured usually as an HI of less than 1) exists below which non-cancer health effects are no longer
predicted.
In Step 4, the EPA determines whether site risks are great enough to cause health problems for people at
or near the site. The results of the three previous steps are combined, evaluated, and summarized. The
EPA adds up the potential risks from the individual contaminants and exposure pathways and calculates
a total site risk.
Cancer risks between 10-4 and 10-6, and a non-cancer HI of 1 or less are considered acceptable for
Superfund sites.
APPENDIX E
TABLES
TABLE 1
COMPARISON OF ALTERNATIVES FOR OPERABLE UNIT 1
TABLE 2
SUMMARY OF CONTAMINANTS OF CONCERN
SURFACE SOIL
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
TABLE 3
SUMMARY OF CONTAMINANTS OF CONCERN
SUBSURFACE SOIL
NEBRASKA PLUBLIC POWER DISTRICT PROPERTY
TABLE 4
SUMMARY OF CONTAMINANTS OF CONCERN
SUBSURFACE SOIL
BLACK HILLS ENERGY PROPERTY
TABLE 5
SUMMARY OF CONTAMINANTS OF CONCERN
SURFACE SOIL
ALLEY BETWEEN PARCELS
TABLE 6
SUMMARY OF CONTAMINANTS OF CONCERN
SUBSURFACE SOIL
ALLEY BETWEEN PARCELS
TABLE 7
SUMMARY OF CONTAMINANTS OF CONCERN
SUBSURFACE SOIL
7TH STREET AND NORFOLK AVENUE RIGHT OF WAY
TABLE 7 CONTINUED
SUMMARY OF CONTAMINANTS OF CONCERN
SUBSURFACE SOIL
7TH STREET AND NORFOLK AVENUE RIGHT OF WAY
TABLE 8
SUMMARY OF CONTAMINANTS OF CONCERN
GROUNDWATER
TABLE 9
CANCER DATA TOXICITY SUMMARY
ORAL/DERMAL
TABLE 10
CANCER DATA TOXICITY SUMMARY
INHALATION
TABLE 11
NONCANCER DATA TOXICITY SUMMARY
ORAL/DERMAL
TABLE 12
NONCANCER DATA TOXICITY SUMMARY
INHALATION
TABLE 13
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE COMMERCIAL/INDUSTRIAL WORKER
TABLE 13 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE COMMERCIAL/INDUSTRIAL WORKER
TABLE 13 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE COMMERCIAL/INDUSTRIAL WORKER
TABLE 14
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE RESIDENT
TABLE 14 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE RESIDENT
TABLE 14 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE RESIDENT
TABLE 15
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 15 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 15 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
NEBRASKA PUBLIC POWER DISTRICT PROPERTY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 16
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
BLACK HILLS ENERGY PROPERTY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 16 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
BLACK HILLS ENERGY PROPERTY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 16 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
BLACK HILLS ENERGY PROPERTY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 17
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
ALLEY BETWEEN PARCELS
FUTURE RESIDENT
TABLE 17 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
ALLEY BETWEEN PARCELS
FUTURE RESIDENT
TABLE 17 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
ALLEY BETWEEN PARCELS
FUTURE RESIDENT
TABLE 18
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
ALLEY BETWEEN PARCELS
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 18 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
ALLEY BETWEEN PARCELS
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 18 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
ALLEY BETWEEN PARCELS
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 19
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
7th STREET AND NORFOLK AVENUE RIGHT OF WAY
FUTURE RESIDENT
TABLE 19 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
7th STREET AND NORFOLK AVENUE RIGHT OF WAY
FUTURE RESIDENT
TABLE 19 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
7th STREET AND NORFOLK AVENUE RIGHT OF WAY
FUTURE RESIDENT
TABLE 20
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
7th STREET AND NORFOLK AVENUE RIGHT OF WAY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 20 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
7th STREET AND NORFOLK AVENUE RIGHT OF WAY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 20 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
7th STREET AND NORFOLK AVENUE RIGHT OF WAY
FUTURE CONSTRUCTION/UTILITY WORKER
TABLE 21
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
GROUNDWATER PLUME
FUTURE OFFSITE RESIDENT
TABLE 21 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
GROUNDWATER PLUME
FUTURE OFFSITE RESIDENT
TABLE 21 CONTINUED
SUMMARY OF POTENTIAL HUMAN HEALTH CANCER RISKS AND NON-CANCER HAZARDS
GROUNDWATER PLUME
FUTURE OFFSITE RESIDENT
TABLE 22
SUMMARY OF CARCINOGENIC RISK
TABLE 23
SUMMARY OF NONCARCINOGENIC RISK
TABLE 24
SELECTED REMEDY COST ESTIMATE
ALTERNATIVE 4 – IN-SITU THERMAL TREATMENT
TABLE 25
MONITORING WELL CONSTRUCTION INFORMATION
TABLE 26
DNAPL LEVEL IN MONITORING WELLS
TABLE 27
EAST MUNICIPAL WELL INFORMATION
APPENDIX F
ARARs
Federal Action-Specific ARARs
Filter by Statute Authority
CAA
CAA
Citation
Clean Air Act (CAA) 40 CFR Part 50 National Primary and
42 USC §7401 et seq. Secondary Ambient Air
Quality Standards
(NAAQS)
OU 1
Requirement
Alt 3 - Thermally
National Primary and Secondary
Enhanced Soil Vapor Ambient Air Quality Standards
Extraction
(NAAQS)
Alt 4 - In-Situ
Thermal Treatment
Status
Synopsis of Requirement
Applicable
National Primary Ambient Air Quality Standards All alternatives would comply with the ambient air
in 40 CFR Part 50 define levels of air quality
quality standards by treatment and monitoring.
which "are necessary, with an adequate margin of
safety, to protect the public health".
Clean Air Act (CAA) 40 CFR Part 61 Alt 3 - Thermally
National Emission Standards for
Applicable
National Emission
Enhanced Soil Vapor Hazardous Air Pollutants (NESHAP) 42 USC §7401 et seq. Standards for Hazardous Extraction
Action-specific standards
Air Pollutants
Alt 4 - In-Situ
(NESHAP)
Thermal Treatment
Action to be Taken to Attain Requirement
National Secondary Ambient Air Quality
Standards define levels of air quality "necessary to
protect the public welfare from any known or
anticipated adverse effects of a pollutant".
40 CFR Part 61 sets NESHAP for the following All alternatives would comply with the NESHAP
substances, designated as hazardous air pollutants: requirements by providing treatment and
asbestos, benzene, beryllium, coke oven
monitoring of any emmissions associated with the
emissions, inorganic arsenic, mercury,
remedial actions.
radionuclides and vinyl chloride.
NESHAP also sets standards for "other
substances...that included consideration of the
serious health effects, including cancer, from
ambient air exposure to the substance". These
"other substances" are as follows: acrylonitrile,
1,3-butadiene, cadmium, carbon tetrachloride,
chlorinated benzenes, chlorofluorocarbon—113,
chloroform, chloroprene, chromium, copper,
epichlorohydrin, ethylene dichloride, ethylene
oxide, hexachlorocyclopentadiene, manganese,
methyl chloroform, methylene chloride, nickel,
perchloroethylene, phenol, polycyclic organic
matter, toluene, trichloroethylene, vinylidene
chloride zinc and zinc oxide.
CAA
Clean Air Act (CAA) 40 CFR Part 63 Alt 3 - Thermally
National Emission Standards for
Relevant and
National Emission
Enhanced Soil Vapor Hazardous Air Pollutants for Source Appropriate
42 USC §7401 et seq. Standards for Hazardous Extraction
Categories - Action-specific
Air Pollutants for Source Alt 4 - In-Situ
standards
Categories
Thermal Treatment
40 CFR Part 63 sets NESHAP for "specific
All alternatives would comply with the NESHAP
categories of stationary sources that emit (or have requirements by providing treatment and
the potential to emit) one or more hazardous air
monitoring of any emmissions associated with the
pollutants listed in this part..." and applies to "all remedial actions.
hazardous waste combustors: hazardous waste
incinerators, hazardous waste cement kilns,
hazardous waste lightweight aggregate kilns,
hazardous waste solid fuel boilers, hazardous
waste liquid fuel boilers, and hazardous waste
hydrochloric acid production furnaces.
The standards in 40 CFR Part 63 are independent
of the standards in 40 CFR Part 61.
RCRA
Resource
Conservation and
Recovery Act
(RCRA)
42 USC §6901 et
seq.
RCRA
Resource
Conservation and
Recovery Act
(RCRA)
42 USC §6901 et
seq.
RCRA
Resource
Conservation and
Recovery Act
(RCRA)
42 USC §6901 et
seq.
RCRA
Resource
Conservation and
Recovery Act
(RCRA)
42 USC §6901 et
seq.
State Action-Specific ARARs
Filter by Statute Authority
40 CFR Parts 239-258 - Alt 2 - Soil
Excavation and InSolid Waste:
Situ Chemical
40 CFR Part 257 Criteria for classification Oxidation
of solid waste disposal
facilities and practices
Criteria for solid waste - Contaminant-Applicable
specific standards
Criteria for classification of solid waste disposal The excavation and disposal remedial action will
facilities and practices in 40 CFR Part 257 define comply with these requirements by classifying solid
different types of facilities regulated under RCRA. waste and disposal at an approved facility.
40 CFR Parts 260-282 Hazardous Waste:
40 CFR Part 261 Indentification and
listing of hazardous
waste
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
Standards for indentifying hazardous Applicable
waste - Contaminant-specific
standards
40 CFR Part 261 defines the term "hazardous
waste" and identifies those hazardous waste
subject to regulations under parts 262-265, 268,
and parts 270, 271 and 124, which are subject to
the notification requirements of section 3010 of
RCRA.
The excavation and disposal remedial action will
comply with these requirements by identifying
hazardous waste during excavation activities.
40 CFR Parts 260-282 Hazardous Waste:
40 CFR Part 262 Standards applicable to
generators of hazardous
waste
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
Regulations for generators of
hazardous waste - Action-specific
regulations
Applicable
40 CFR Part 262 establishes "standards for
generators of hazardous waste as defined by 40
CFR 260.10".
The excavation and disposal remedial action will
comply with these requirements by identifying
hazardous waste during excavation activities.
40 CFR Parts 260-282 Hazardous Waste:
40 CFR Part 263 Standards applicable to
transporters of
hazardous waste
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
Regulations for transporters of
hazardous waste - Action-specific
regulations
Applicable
40 CFR Part 263 establishes "standards which
apply to persons transporting hazardous waste
within the United States if the transportation
requires a manifest under 40 CFR part 262".
The excavation and disposal remedial action will
comply with these requirements by identifying
hazardous waste during excavation and
transportation activities.
Citation
OU 1
Requirement
Status
Synopsis of Requirement
Action to be Taken to Attain Requirement
NAC
Nebraska
NAC Title 122, Chapter Alt 2 - Soil
A Class V well shall not endanger the Applicable
Administrative Code 6 Sections 003 and 005 - Excavation and In- health and safety of persons or cause
pollution of the environment. A Class
Title 122 - Rules and Authorization of Class V Situ Checmical
Injection Wells
V well authorization shall not exceed
Regulations for
Oxidation
10 years.
Underground
Alt 3 - Thermally
Injection and Mineral
Enhanced Soil Vapor
Production Wells
Extraction
Atl 4 - In-Situ
Thermal Treatment
Rules and regulations for underground injection
and Class V injection wells.
These requirements are potentially applicable to the
in-situ thermal treatment and ISCO injections.
Authorization from NDEE would be obtained to
construct the Class V UIC injection wells.
NAC
Nebraska
NAC Title 122, Chapter Alt 2 - Soil
The UIC program makes a
Administrative Code 10 Sections 006 and 007 - Excavation and In- determination based on a
Title 122 - Rules and Class V Injection Well Situ Checmical
groundwater review if the type of
Authorization
Regulations for
Oxidation
fluid to be injected is permissible or
Application; Information Alt 3 - Thermally
Underground
if additional steps need to be taken.
Injection and Mineral Requirements
Enhanced Soil Vapor
Extraction
Production Wells
Atl 4 - In-Situ
Thermal Treatment
Any person who proposes or operates a Class V
underground injection well, which meets the
requirements in Chapter 6 of this Title, shall
submit an application to the Director. For new
injection wells, the application shall be filed at
least 180 days before the construction is planned
to begin, including plans for testing, drilling and
construction.
The UIC program uses this information to make a
determination on if the type of substrate is
acceptable for injection or if any additional
requirements are needed before an injection well is
constructed or operated. No form needs to be filled
out and EPA would not need to wait for approval or
any other type of feedback before proceeding with
injections after the information is sent to the UIC
program.
Relevant and
Appropriate
State Action-Specific ARARs
Filter by Statute Authority
Citation
OU 1
Requirement
Status
Synopsis of Requirement
Action to be Taken to Attain Requirement
NAC
Nebraska
NAC Title 122, Chapter Alt 2 - Soil
Requirements for Class V wells
Applicable
Administrative Code 17 Sections 005.01 and Excavation and In- including minimum set back
Situ Checmical
Title 122 - Rules and 005.04 - Construction
distances, construction requirements
Regulations for
Requirements; Class I, Oxidation
and injection requirements.
III and V Injection Wells Alt 3 - Thermally
Underground
Injection and Mineral and Mineral Production Enhanced Soil Vapor
Extraction
Production Wells
Wells
Atl 4 - In-Situ
Thermal Treatment
Rules and regulations for underground injection
and construction of Class V injection wells.
These requirements are potentially applicable to the
in-situ thermal treatment and ISCO injections.
Authorization from NDEE would be obtained to
construct the Class V UIC injection wells.
NAC
Nebraska
NAC Title 122, Chapter Alt 2 - Soil
Operating requirements for Class V
Administrative Code 19 Section 002.03 Excavation and In- injection wells.
Title 122 - Rules and Operating Requirements; Situ Checmical
Class V Injection Wells Oxidation
Regulations for
and Mineral Production Alt 3 - Thermally
Underground
Injection and Mineral Wells
Enhanced Soil Vapor
Production Wells
Extraction
Atl 4 - In-Situ
Thermal Treatment
Rules and regulations for underground injection
operation of Class V injection wells.
These requirements are potentially applicable to the
in-situ thermal treatment and ISCO injections.
Authorization from NDEE would be obtained to
construct and operate the Class V UIC injection
wells.
NAC
Nebraska
NAC Title 128, Chapter Alt 2 - Soil
Administrative Code. 3 Section 010 Excavation and InTitle 128 - Nebraska Identification and Listing Situ Chemical
of Hazardous Waste
Hazardous Waste
Oxidation
Regulations
A solid waste exhibits the
Applicable
characteristic of toxicity if, by
application of the toxicity
characteristic leaching procedure, the
extract from a represnetative sample
of the waste contains a contaminant
at a concentration equal to or greater
than that specified for the
contaminant.
Criteria for identifying the characteristic of
hazardous waste. Section 010 - Toxicity
characteristic.
Waste will be characterized to determine if it is a
hazardous waste.
NAC
Nebraska
NAC - Title 128 Chapter Alt 2 - Soil
Administrative Code. 4, Section 002 Excavation and InTitle 128 - Nebraska Determination,
Situ Chemical
Hazardous Waste
Notification, Reporting Oxidation
Regulations
and Recordkeeping
A person who generates a solid waste Applicable
must determine if the waste is a
hazardous waste.
Establishes the determinations, notifications and
reporting requirements for generators of
hazardous waste.
Waste will be characterized to determine if it is a
hazardous waste.
NAC
Nebraska
NAC Title 128, Chapter Alt 2 - Soil
Administrative Code. 8 Sections 006, 007 and Excavation and InTitle 128 - Nebraska 008, Chapter 9 Sections Situ Chemical
Hazardous Waste
001, 007, Chapter 10,
Oxidation
Regulations
Sections 001, 003, 004 Special Requirements for
Hazardous Waste
Generated by
Conditionally Exempt
Small Quantity
Generators
Requirements for generators for
Applicable
packaging, labeling and marking
containers of hazardous waste, for
accumulating hazardous waste on site
without having a permit, and for
containers of hazardous waste
including:
- Maintained in good condition
- Closed during storage except to add
or remove waste
- Inspected weekly for leaks or
deterioration
- Closed by removing all waste and
residue
Chapter 8 includes special requirements for
hazardous waste generated by conditionally
exempt small quantity generators. Chapter 9
includes requirements for small quantity
generators of hazardous waste. Chapter 10
includes requirements for large quantity
generators of hazardous waste.
Alternative 2 would generate waste, including
waste from dewatering the excavation, for off-site
disposal. The dewatering waste would be
containerized and characterized when it is
generated to determine if it meets the definition of
RCRA characteristic waste. Waste soil generated
needs to either be containerized, or have an Area of
Contamination (AOC) requested if soil is
temporarily stockpiled, prior to TCLP testing to
determine the appropriate disposal method.
Applicable
State Action-Specific ARARs
Filter by Statute Authority
Citation
OU 1
Requirement
Status
Synopsis of Requirement
Action to be Taken to Attain Requirement
Applicable
A generator of hazardous waste must determine if The waste would be characterized at the point of
the waste has to be treated before it can be land
generation to determine if the waste must be
disposed.
treated prior to land disposal. If necessary,
treatment to comply with land disposal restrictions
would occur off site, and so are independently
applicable requirements.
NAC
Nebraska
NAC Title 128, Chapter
Administrative Code. 20 Section 005.01A Title 128 - Nebraska Land Disposal
Hazardous Waste
Restrictions
Regulations
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
Requirements for generators of
hazardous waste.
NAC
Nebraska
NAC Title 128, Chapter
Administrative Code. 21 Section 016 Title 128 - Nebraska Standards for Owners
Hazardous Waste
and Operators of
Regulations
Hazardous Waste
Treatment, Storage and
Disposal Facilities
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
An owner or operator may store non- Relevant and
flowing remediation waste in a
Appropriate
staging pile that is used during
remedial operations at a facility. The
staging pile must facilitate a reliable,
effective, and protective remedy; be
designed to prevent or minimize
releases of hazardous waste into the
environment and minimize or
adequately control cross-media
transfer; and must not operate for
more than 2 years, unless an
extension is granted.
Standards in Chapter 21 apply to owners and
operators of all facilities which treat, store or
dispose of hazardous wastes.
NAC
Nebraska
NAC Title 128, Chapter Alt 2 - Soil
Administraive Code. 21 Sections 007 and 012 Excavation and InTitle 128 - Nebraska
Situ Chemical
Hazardous Waste
Oxidation
Regulations
The owner or operator must close the Relevant and
facility in a manner that minimizes
Appropriate
the need for further maintenance; and
controls, minimizes, or eliminates
post-closure escape of hazardous
waste, hazardous constituents,
leachate, contaminated run-off, or
hazardous waste decomposition
products. At closure, the owner or
operator must remove or
decontaminate all waste residues,
contaminated containment system
components, contaminated subsoil,
structures and equipment
contaminated with waste and
leachate, and manage them as
hazardous waste.
NAC, Title 128, Chapter 21, § 007 adopts 40 CFR If excavated soil is stockpiled in an uncontaminated
§ 264.111 identified as a potential federal action- area, the area will be properly maintained and
closed following completion of the remedial action.
specific ARAR by reference. NAC Title 128,
Chapter 21, § 012 adopts 40 CFR § 264.258(a)
identified as a potential action-specific ARAR by
reference.The location of the stockpile would be
determined in the remedial design. If the stockpile
is located in an uncontaminated area, closure will
also comply with 40 CFR §§264.258(a) and
264.111.
Excavated contaiminated soil will be temporarily
stockpiled prior to characterization and off-site
disposal.
State Action-Specific ARARs
Filter by Statute Authority
Citation
OU 1
Requirement
Status
Containers that store hazardous waste Applicable
must be: Maintained in good
condition, Compatible with the waste
stored, Closed during storage except
to add or remove waste, Inspected
weekly for deterioration, Placed on a
sloped, crack-free base, and protected
from contact with accumulated
liquid, Kept at least 50 feet from the
facility if the waste is ignitable or
reactive, Separated with use of dikes
if the waste is ignitable or reactive,
Closed by removing all hazardous
waste and residues.
NAC
Nebraska
NAC Title 128, Chapter
Administrative Code. 21 Section 009
Title 128 - Nebraska
Hazardous Watse
Regulations
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
NAC
Nebraska
NAC Title 128, Chapter
Administrative Code. 21 Section 001.04 Title 128 - Nebraska Standards for Owners
Hazardous Waste
and Operators of
Regulations
Hazardous Waste
Treatment, Storage and
Disposal Facilities
Alt 2 - Soil
Owners and operators must comply
Excavation and In- with provisions identified in Section
Situ Checmical
001.04:
Oxidation
- Obtain a detailed chemical and
Alt 3 - Thermally
physical analysis or a representative
Enhanced Soil Vapor sample of the waste to be managed.
Extraction
- Prevent people entering the active
Atl 4 - In-Situ
portion of the site.
Thermal Treatment - Inspect the site for malfunctions,
deterioration, operator errors and
discharges that may lead to the
release of hazardous waste into the
environment.
NAC
Nebraska
NAC Title 129, Chapter
Administrative Code. 5 Sections 001.01 and
Title 129 - Air
001.02 - Operating
Quality Regulations Permits - When
Required
Alt 3 - Thermally
Class I (major source) operating
Applicable
Enhanced Soil Vapor permits are required for a major
Extraction
source of emissions of hazardous air
Alt 4 - In-Situ
pollutants (a unit that emits or has
Thermal Treatment potential to emit 10 tons per year or
more of any hazardous air pollutant).
Class II (minor source) operating
permits are required for a source of
emissions of hazardous air pollutants
(a unit that emits or has potential to
emit 5 tons per year or more of any
hazardous air pollutant).
Relevant and
Appropriate
Synopsis of Requirement
Action to be Taken to Attain Requirement
NAC, Title 128, Chapter 21, § 009 adopts 40 CFR Waste from construction and operation of the
§§ 264.170- 264.178 identified as potential federal treatment systems would be stored in containers
action-specific ARARs by reference. Waste from before off-site disposal.
construction and operation of the treatment
systems would be stored in containers before offsite disposal.
Standards in Chapter 21 apply to owners and
operators of all facilities which treat, store or
dispose of hazardous wastes.
Construction and operation of the SVE and the insitu thermal treatment systems will generate waste.
The substantive provisions of this regulation are
potentially relevant and appropriate to cleanup
activities at OU 3.
Standards in Chapter 5 apply to operating permit
requirements related to emissions of hazardous
waste.
Pursuant to CERCLA § 121(e), permits are not
required for the portions of the remedial action that
occur entirely on site. The air emissions would
occur entirely on site; therefore, a Class I or Class
II permit is not required. However, the substantive
provisions (the regulated quantity of emissions of
hazardous air pollutants) are necessary to
determine if air pollution control equipment is
necessary and, if so, what air pollution control
equipment is required.
State Action-Specific ARARs
Filter by Statute Authority
Citation
OU 1
Requirement
Status
Synopsis of Requirement
Action to be Taken to Attain Requirement
Applicable
Standards in Capter 8 apply to emissions
limitations and standards.
Pursuant to CERCLA § 121(e), permits are not
required for the portions of the remedial action that
occur entirely on site. The air emissions would
occur entirely on site; therefore, a permit to is not
required. However, the substantive provisions
(emissions limitations and standards) are necessary
to determine if air pollution control equipment is
necessary and, if so, what air pollution control
equipment is required.
Standards in Chapter 17 apply to construction
permit requirements related to emissions of
hazardous waste.
Permits are not required if remedial action is
conducted on-site. However, substantive provisions
are necessary to determine if air pollution control
equipment is necessary and, if so, what air
pollution control equipment is required.
NAC
Nebraska
NAC Title 129, Chapter
Administrative Code. 8 Sections 002 and
Title 129 - Air
015.01 - Operating
Quality Regulations Permit Content
Alt 3 - Thermally
Each Class I and Class II operating
Enhanced Soil Vapor permit shall specify emissions
Extraction
limitations and standards.
Alt 4 - In-Situ
Thermal Treatment
NAC
Nebraska
NAC Title 129, Chapter
Administrative Code. 17 Section 001.01 Title 129 - Air
Construction Permits Quality Regulations When Required
Alt 3 - Thermally
Without a permit to construct, no
Applicable
Enhanced Soil Vapor person shall cause construction of a
Extraction
stationary source of emissions that
has potential to emit 2.5 tons per year
Alt 4 - In-Situ
Thermal Treatment of any hazardous air pollutant or an
aggregate of 10 tons per year of any
hazardous air pollutants, including
fugitive dusts.
NAC
Nebraska
NAC Title 129, Chapter Alt 3 - Thermally
A permit to construct will be issued Applicable
Administrative Code. 27 Sections 002 and 003 - Enhanced Soil Vapor to sources with potential to emit 10
Hazardous Air
Extraction
Title 129 - Air
tons per year of any hazardous air
pollutant or 2.5 tons per year or more
Alt 4 - In-Situ
Quality Regulations Pollutants; Maximum
Achievable Control
Thermal Treatment of any combination of hazardous air
pollutants only if the maximum
Technology (MACT)
achievable control technology is to be
applied.
Standards in Chaoter 27 apply to requirements for Permits are not required if remedial action is
new, modified or reconstructed sources of
conducted on-site. However, substantive provisions
are necessary to determine if air pollution control
hazardous air pollutants.
equipment is necessary and, if so, what air
pollution control equipment is required.
NAC
Nebraska
NAC Title 129, Chapter
Administrative Code. 32, Section 001,
Title 129 - Air
Handling of particulate
Quality Regulations matter
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
No person may cause or permit
Applicable
handling, transporting, or storage of
any material in a manner that may
allow particulate matter to become
airborne in such quantities and
concentrations that it remains visible
in the ambient air beyond the
premises where it originates.
The excavation and soil storage will occur in a
Dust suppression will be used to control emissions.
commercial part of the city where dust and
particulates could extend beyond the premises
where the excavation and soil handling will occur.
NAC
Nebraska
NAC Title 129, Chapter
Administrative Code. 32, Section 002,
Title 129 - Air
Construction, use, or
Quality Regulations demolition
Alt 2 - Soil
Excavation and InSitu Chemical
Oxidation
No person may cause or permit an
Applicable
open area to be constructed or used
without applying all such reasonable
measures to prevent particulate
matter from becoming airborne so
that it remains visible beyond the
premises where it originates.
The excavation and soil storage will occur in a
Dust suppression will be used to control emissions.
commercial part of the city where dust and
particulates could extend beyond the premises
where the excavation and soil handling will occur.
State Action-Specific ARARs
Filter by Statute Authority
Citation
OU 1
Requirement
Status
Wastes shall be classified as special Applicable
wastes by the departmenmt on a caseby-case basis. The department shall
make a determination based upon the
characteristics and properties of soild
waste. See Title 132 Chapter 13
Section 002 for the details on
classifying special waste.
Synopsis of Requirement
Action to be Taken to Attain Requirement
NAC
Nebraska
NAC Title 132, Chapters Alt 2 - Soil
Excavation and InAdministrative Code 1 and 13 - Special
Situ Chemical
Title 132 - Integrated Wastes
Oxidation
Soild Waste
Management
Regulations
Standards in Chapter 13 include the classification Classification of special wastes will be done in
of special waste.
accordance with Title 132, Chapter 13.
NAC
Nebraska
NAC Title 171, Chapter
Administrative Code. 3 - Licensure of
Title 171 - Rules and Professional Geologists
Regulations - State of from other Jurisdictions
Nebraska Board of
Geologists
Alt 2 - Soil
Anyone practicing geology in the
Excavation and In- State must be a Professional
Situ Chemical
Geologist (PG), or under the
Oxidation
direction of a PG.
Alt 3 - Thermally
Enhanced Soil Vapor
Extraction
Atl 4 - In-Situ
Thermal Treatment
Relevant and
Appropriate
Rules and Regulations for State of Nebraska
Board of Geologists.
If an in-state contractor is utilized on the site, a
licensed geologist would be required. If out of state
contractors are utilized, the geologist would not
need to be licensed but it would need to be
determined that the contractor possesses an
appropriate amount of knowledge, education and
experience.
NAC
Nebraska
NAC Title 178, Chapter
Administrative Code. 10, Section 10-003.01
Title 178 - Nebraska
Department of Health
Alt 2 - Soil
Anyone drilling wells in the State of
Excavation and In- Nebraska must be a licensed well
Situ Chemical
driller or contractor.
Oxidation
Alt 3 - Thermally
Enhanced Soil Vapor
Extraction
Atl 4 - In-Situ
Thermal Treatment
Relevant and
Appropriate
Rules and Regulations for Well Drillers
If an in-state contractor is utilized on the site, a
licensed well driller would be required. If out of
state contractors are utilized, the geologist would
not need to be licensed but it would need to be
determined that the contractor possesses an
appropriate amount of knowledge, education and
experience.
NAC
Nebraska
NAC Title 178, Chapter
Administrative Code. 12 - Water well
Title 178 - Nebraska constructions, pump
Department of Health installation and water
Alt 2 - Soil
General requirements for location
Excavation and In- and construction of groundwater
Situ Chemical
wells, requirements for the
Oxidation
construction of groundwater
Alt 3 - Thermally
monitoring wells, and requirements
Enhanced Soil Vapor for decommissioning wells.
Extraction
Atl 4 - In-Situ
Thermal Treatment
Applicable
These regulations apply to the construction,
Groundwater monitoring wells will be constructed
location, and decommissioning of water wells, the and decommissioned in accordance with
installation of pumps and pumping equipment, the requirements in Chapter 12. All wells will be
collection of water samples from water wells, and registered with the Department of Natural
the inspection of installed water well equipment Resources and notify the department when wells
and chemigation regulation devices.
are abanodoned.
Federal Location-Specific ARARs
Filter by Statute
ESA
Authority
Citation
Endangered Species Act 50 CFR Part 17 (ESA)
Endangered and
threatened wildlife and
List of Endangered
plants
Species
Location
(Site Feature or
Characteristic)
Norfolk, Nebraska
Requirement
Status
The ESA provides a program for the
Applicable
conservation of threatened and
endangered plants and animals and the
habitats in which they are found. The
lead federal agencies for implementing
ESA are the U.S. Fish and Wildlife
Service (FWS) and the U.S. National
Oceanic and Atmospheric
Administration (NOAA) Fisheries
Service. The FWS maintains a
worldwide list of endangered species.
Species include birds, insects, fish,
reptiles, mammals, crustaceans, flowers,
grasses, and trees.
Synopsis of Requirement
Action to be Taken to Attain
Requirement
The law requires federal agencies, in As part of the original risk assessment
consultation with the U.S. Fish and
completed for the site during the
Wildlife Service and/or the NOAA
EE/CA, the potential for ecological
Fisheries Service, to ensure that
impacts was assessed and it was
actions they authorize, fund, or carry determined, because the site is located
out are not likely to jeopardize the
near the middle of downtown Norfolk,
continued existence of any listed
it is not expected that MGP-related
species or result in the destruction or contamination will impact any of these
adverse modification of designated
species.
critical habitat of such species. The
law also prohibits any action that
causes a "taking" of any listed species
of endangered fish or wildlife.
Predecessors or also known as:
Endangered Species Conservation Act
State Location-Specific ARARs
NAC
Nebraska
NAC Title 163, Chapter Norfolk, Nebraska
Administrative Code
4, Section 004 (NAC) Title 163 Threatened and
Nebraska Nongame and Endangered Species
Endangered Species Act
Taking of massasauga or timber
Applicable
rattlesnake will not be considered
unlawful it if is done for the immediate
protection of the health of humans,
livestock or pets.
Requires consultation with the
Nebraska Game and Parks
Commission regarding actions which
may affect threatened or endangered
species and their critical habitat.
As part of the original risk assessment
completed for the site during the
EE/CA, the potential for ecological
impacts was assessed and it was
determined, because the site is located
near the middle of downtown Norfolk,
it is not expected that MGP-related
contamination will impact any of these
species.
To-Be-Considered Materials
Filter
Authority
No TBCs identified.
Reference Document
Medium 1
Requirement
Status2
Synopsis of Requirement 3
Action to be Taken to Attain
Requirement 4
Federal Chemical-Specific ARARs
Filter by Statute Authority
Citation
Medium
RCRA
Resource Conservation and 40 CFR Parts 239-258 - Solid Soil
Recovery Act (RCRA)
Waste:
40 CFR Part 257 - Criteria
for classification of solid
42 USC §6901 et seq.
waste disposal facilities and
practices
RCRA
Resource Conservation and 40 CFR Parts 260-282 Recovery Act (RCRA)
Hazardous Waste:
40 CFR Part 261 Indentification and listing of
42 USC §6901 et seq.
hazardous waste
State Chemical-Specific ARARs
No State Chemical-Specific ARARs were identified.
Soil
Requirement
Criteria for solid waste Chemical-specific and
Action-specific standards
Status
Applicable
Standards for indentifying Applicable
hazardous wasted Chemical-specific and
Action-specific standards
Synopsis of Requirement
Criteria for classification of solid waste disposal
facilities and practices in 40 CFR Part 257 define
different types of facilities regulated under RCRA.
Action to be Taken to Attain Requirement
Contaminated soil will be evaluated against RCRA criteria
for solid waste. The selected remedy will dispose of the
solid waste in compliance with RCRA standards.
40 CFR Part 261 defines the term "hazardous waste"
and identifies those hazardous waste subject to
regulations under parts 262-265, 268, and parts 270,
271 and 124, which are subject to the notification
requirements of section 3010 of RCRA.
Contaminated soil will be evaluated against RCRA criteria
for hazardous waste. The selected remedy will treat and
dispose of the hazradous waste in compliance with RCRA
standards.
APPENDIX G
NEBRASKA DEPARTMENT OF ENVIRONMENT AND ENERGY
CONCURRENCE LETTER
APPENDIX H
PUBLIC NOTICE DISPLAY AD
APPENDIX I
CITY ORDINANCE NO. 5725
APPENDIX J
ENVIRONMENTAL COVENANTS
7:sa
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No
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ENVIRONI}TENT]AI, COVENANT
This Environmental Covenant is entered into this Î*t-f day of March,20l6,
by and between Nebraska Public Power District, a public corporation ancl political
subdivision of the State of Nebraska, as grantor ancl grantee/holder ("NPPD'), and the
United States Envirorunental Protection Agency (EPA) ("Agency'') pursuant to the
Nebraska Urrifonn Environmental Covenants Act, Neb. Rev. Stat. $$ 76-2601 to 762613.
RECIT'ALS:
A. NPPD is the owner of certain real property located al720 West Madison
Avenue, Norfolk, Madison County, Nebraska, which is Iegally dcscribed as follows (the
"Property'):
Lots 5 tluough 13, inclusìve, Block I of Koenigstein's Third Addition to Norfblk,
and the vacated alley adjacent to Lots 5 tluough l2 of said Block 1, Madison
County, Nebraska.
B. The Property was includecl in the description of a site of potential releases of
hazardous substances, pollutants anðlot contaminants onto the ground and into the
groundwater underlying the Property, and is refbrred to as the lowa/l.lebraska Light &
Power Former Manufàcturecl Gas Plant ("MGP") Superf-und site ("the Site"), EPA ID No
NED986373678.
C. Pursuant to an August 7,2073 Administrative Settlement Agreement and
Order on Consent For Removal Action issued by the U.S. Environmental Protection
Agency ("EPA") under Sections 104,1A7 and 122 of the Comprehensivc Enviromnental
Response, Compensation, anci Liability Act of'198A,42 U.S.C. gg 9604, 9607 and 9622,
as amencled ("CERCLA"), Centel Corporatiorr, a Delaware corporation ("Centel")
conductecl au environmental response projcct at the Site and cerlain adjoining arcas. This
envirorunental response project involved the removal and off-site disposal of the most
heavily containinated soils at the Site, however, resiclual contanrination reinains at
vadous depths in the saturatecl soils beneath the Site and in the grountlwater unclerlying
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9
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the Site and certain adjoining areas. These contaminants include polynuclear aromatic
hydrocarbon ("PAH") constituents; benzene, toluene, ethylbenzene and total xylenes
("BTEX") compounds; atdlor contaminants from MGP-related processes; hereinafter
known collectively as "Site Contaminants."
D. The Agency, as defined in Neb. Rev. Stat. ç 76-2602, is the EPA.
E. The administrative record for the Iowa,/Nebraska Light & Power FMGP
Superfund Site is available to the public and is located at the Norfolk Public Library, 308
Prospect Avenue, Norfolk, Nebraska, 6870I, and at EPA's offices located at lI20I
Renner Boulevard, Lenexa, Kansas, 66219.
NO\ü, THEREFORE,
NPPD hereby declares that the Property will hereinafter be bound by, held, sold
and conveyed subject to the terms, conditions, obligations, and restrictions set forth
herein, which will run with the land, in perpetuity, unless amended or terminated
pursuant to Paragraph 10 below.
1. Representations and Warranties. Grantor warrants to the other signatories to
this Covenant that:
a. NPPD is the sole fee title owner of the Property;
b. NPPD holds sufficient fee title to the Property to grant the rights and interests
c.
described in this Environmental Covenant free of any conflicting legal and
equitable claims; and
No other porsons except for NPPD hold any legal or equitable interests in the
Property.
2. Purpose. The purpose of this Environmental Covenant is to ensure protection
of human health and the environment by minimizing the potential for exposure to the
contamination that remains on the Property and to ensure that the Property is not
developed, used, maintained or operated in a manner which may result in unacceptable
exposures to residual contamination.
3. Running with the Land. This Environmental Covenant is perpetual and
conveys to NPPD real property rights and obligations that run with the land, and gives to
the Agency the right to enforce the activity and use limitations set forth in Paragraph 4
below. The terms, conditions, obligations, and limitations in this Environmental
Covenant are binding on NPPD, its successors, assigns, and transferees, and all persons,
corporations or other entities obtaining or succeeding to any right, title or interest in the
Property. Acceptance of any conveyance, transfer, lease or sublease of the Property, or
any part thereof, will bind each transferee, and it successors, transferees, heirs, and
assigns to the terms, conditions, obligations, and limitations set forth herein during their
respective period of ownership or occupancy, as applicable. Notice of any transfer of any
interest in the Property must be promptly provided to EPA by the transferor. NPPD is
bound by the terms, conditions, obligations and limitations in this Environmental
Covenant only during its period of ownership or occupancy after the Effective Date. This
3760t2.3
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Environmental Covenant in no way amends, modifies, limits, or releases NPPD from its
duties and obligations, if any, under the above-referenced Administrative Settlement
Agreement and Order on Consent For Removal Action.
4. Activitv and Use Limitations. The Property is subject to the following
activity and use limitations:
a. The Property shall not be used for residential, child care or school use.
b. Existing remedial systems to control and/or abate vapor intrusion of Site
Contaminants into any existing enclosed buildings at the Property must be
operated and maintained in accordance with standards for protectiveness of
human health and the environment.
c. Any new construction of enclosed buildings at the Property must prevent, or
include remedial systems to control andlor abate, vapor intrusion of Site
Contaminants into any such new construction at the Property, and must be
operated and maintained in accordance with standards for protectiveness of
human health and the environment.
d. Extraction and use of the groundwater underlying the Property, except for
investigation or remediation approved by EPA is prohibited.
e. Except where such excavation is necessary to prevent or address a substantial
previously unknown threat to human health or the environment, including
without limitation, a natural gas pipeline leak or an emergency where
electrical service must be restored to NPPD's customers, including the City of
Norfolk, NPPD, the holder of the Property, will provide EPA five days' prior
written notice prior to the commencement of any digging, drilling,
excavating, constructing, earth moving, or other land disturbing activities that
occur below an existing building, renovation or demolition of existing
structures on the Property; provided, however, that so long as NPPD is the
holder of the Property, NPPD shall only be required to provide such notice to
EPA where such activities extend below the depth of five feet below the
ground surface.
5. Reserved Rights of NPPD. NPPD hereby reserves unto itself and its
successors all rights and privileges in and to the use of the Property which are not
incompatible with the activity and limitations set forth above.
6. Enforcement. The terms of this Environmental Covenantmay be enforced in a
civil action for injunctive or other equitable relief by NPPD and by the Agency in
accordance with Neb. Rev. Stat. ç 76-2611. Failure to exercise such rights of
enforcement will in no event bar subsequent enforcement and shall not be deemed a
waiver of any right to take action to enforce any non-compliance. Nothing in this
Environmental Covenant shall limit the Agency from exercising any authority under
applicable law. The prevailing party in any action to enforce this Environmental
Covenant is entitled to recover all costs of such action, including reasonable attorney fees
and damages pursuant to Neb. Rev. Stat ç 76-2611(d).
7. Rights of Access. NPPD and any then-current owner hereby grants to the
Agency, their agents, contractors, and employees, the right of access to the Property to
376012.3
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monitor compliance with the terms, conditions, obligations, and limitations of thrs
Environmental Covenant. Nothing in this Environmental Covenant shall limit or
otherwise affect the Agency's right of entry and access or the Agency's authority to take
response actions under applicable law.
8. Notice Upon Conveyance. Each instrument hereafter conveying any interest
in the Property or any portion of the Property, including but not limited to, deeds, leases,
and mortgages, shall contain a notice of the activity and use limitations set forth in this
Environmental Covenant, and provide the recording information for this Environmental
Covenant. The notice shall be in substantially the form set forth below. Within thirty
(30) days of the date any such instrument of conveyance is executed, NPPD or thenowner must provide the Agency with a certified copy of said instrument and its recording
reference in the Madison County Register of Deeds.
NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL COVENANT DATED
RECORDED IN
THE OFFICE OF THE REGISTER OF DEEDS OF MADISON COLINTY,
NEBRASKA ON
IN IDOCUMENT _,
BOOK _,
PAGE I. THE ENVIRONMENTAL COVENANT CONTAINS THE
FOLLOWING ACTIVITY AND USE LIMITATIONS:
a. The Property shall not be used for residential, recreational, child care or
school use.
b. Existing remedial systems to control and/or abate vapor intrusion of Site
Contaminants into any existing enclosed buildings at the Property must be
operated and maintained in accordance with standards for protectiveness of
human health and the environment.
c. Any new construction of enclosed buildings at the Property must prevent, or
include remedial systems to control andlor abate, vapor intrusion of Site
Contaminants into any such new construction at the Property, and must be
operated and maintained in accordance with standards for protectiveness of
human health and the environment.
d. Extraction and use of ground water underlying the Property, except for
investigation or remediation approved by EPA is prohibited.
e. Except where such excavation is necessary to prevent or address a substantial
previously unknown threat to human health or the environment, including
without limitation anatural gas pipeline leak, the holder of the Property will
provide EPA five days' prior written notice prior to the commencement of
any digging, drilling, excavating, constructing, earth moving, or other land
clisturbing activities that extend below an existing building or extend below
the depth of two feet below ground surface, including any repair, renovation
or demolition of existing structures on the Property that extend beyond such
depth.
9. 'Waiver of Certain Defenses. The parties bound by this Environmental
Covenant hereby waive any defense to the enforcement of this Environmental Covenant
based on laches, estoppel, statute of limitations, or prescription.
376012.3
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10. Amendment and Termination. Amendment or termination of this
Environmental Covenant shall comply with Neb. Rev. Stat. ç 76-2610. The terms of this
Environmental Covenant maybe modified or terminated by written consent of EPA, the
then current fee simple title owner, and all original signatories unless exempted by Neb.
Rev. Stat. ç 16-2610. The amendment or termination is not effective until the document
evidencing consent of all necessary persons is properly recorded. Ifnot by consent, any
amendment or termination of this Environmental Covenant shall be as provided by Neb.
Rev. Stat. ç 16-2609 and such additional terms as specified in this Environmental
Covenant. As provided in Neb. Rev. Stat. ç 76-2610(c), except for an assignment
undertaken pursuant to a governmental reorganization, assignment of an environmental
covenant to a new holder is an amendment.
1 1 . Severabilitlr. If any provision of this Environmental Covenant is found to be
unenforceable in any respect, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
12. Captions. The captions in this Environmental Covenant are for convenience
and reference only and are not a part of this instrument and shall have no effect upon
construction or interpretation.
13. Governing Law. This Environmental Covenant shall be governed by and
interpreted in accordance with the laws of the State of Nebraska.
14. Recordation. Within thirty (30) days after the date of the Agency's approval
of this Environmental Covenant, the Grantor shall record the Environmental Covenant, in
the same manner as a deed to the Property, with the Madison County Register of Deeds.
15. Effective Date. The Effective Date of this Environmental Covenant is the
date upon which the fully executed Environmental Covenant has been recorded as a deed
record for the Property with the Madison County Register of Deeds.
16. Distribution of Environmental Covenant. Within sixty (60) days of the
Effective Date, the Grantor shall distribute a file- and date-stamped copy of the recorded
Environmental Covenant to each person identified in Neb. Rev. Stat. çç 76-2607(a) and
76-2608(c), including but not limited to the City of Norfolk, Nebraska.
17. Notice. Unless otherwise notified in writing by the Agency, any document or
communication required by this Environmental Covenant shall be submitted to:
If to the Agency:
Director
Superfund Division
U.S. Environmental Protection Agency
II20l Renner Boulevard
Lenexa, KS 66219
376012.3
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If to NPPD:
Nebraska Public Power District
P.O. Box 499
l4l4 ßth Sheet
Columbus, NE 68602-0499
ATTN: Corporate Environmental Manager
IREMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
ISTGNATURE PAGES FOLLOW]
3760t2.3
6
oil41
IN WITNESS WHEREOF, the parties hereto have executed this instrument the
day and year first above written.
FOR NPPD:
NEBRASKA PUBLIC PO\üER DISTRICT
By:
C.
ure
Title:
STATE OF NEBRASKA
)
)
)
COIINTY OF PLATTE
fray of
The foregoing instrument was acknowledged before methis
February, 2016, by John C. McClure, Vice President and General Counsel of Nebraska
Public Power District, a public corporation and political subdivision of the State of
Nebraska, having acknowledged that he holds the position or title set forth above and that
he signed the instrument on behalf of the corporation by proper authority and that the
instrument was the act of the corporation for the purpose therein stated.
/é
,q/rr^*+b-'o-
State ol Nebræka
THOMA.9
t{o6ryYuAti"
2018
376012.3
7
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the
day and year first above written.
F'OR AGENCY:
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
By:
{Ð^r,,- ? Pñb-,^n
Mary P. Petbrson
Director
Superfund Division
STATE OF KANSAS
COUNTY OF WYANDOTTE
)
)
)
1S-
day of
The foregoing instrument was acknowledged before me this
P.
Peterson,
Director
of
the
United
States
6,
by
Mary
the
ùlr¡-,
,2ol
Environmental Protection Agency, Region 7, Superfund Division, having acknowledged
that she holds the position set forth above and that she signed the instrument on behalf of
the United States Environmental Protection Agency by proper authority and that the
instrument was the act of such entity for the purpose therein stated.
\"
ror¡nr pugt lc -$.5ollollt¡l
MILADY R
My Appt. Êxpires
3'76012.3
Notary
8
Appendix B:
Statement of Work
REMEDIAL DESIGN/REMEDIAL ACTION
STATEMENT OF WORK
IOWA-NEBRASKA LIGHT & POWER CO. SUPERFUND SITE
OPERABLE UNIT 1
NORFOLK, MADISON COUNTY, NEBRASKA
TABLE OF CONTENTS
1.
INTRODUCTION ........................................................................................................... 3
2.
COMMUNITY INVOLVEMENT ................................................................................... 3
3.
COORDINATION AND SUPERVISION ....................................................................... 5
4.
REMEDIAL DESIGN ..................................................................................................... 6
5.
REMEDIAL ACTION..................................................................................................... 8
6.
REPORTING ................................................................................................................ 13
7.
DELIVERABLES ......................................................................................................... 13
8.
SCHEDULES ................................................................................................................ 20
9.
REFERENCES .............................................................................................................. 22
2
1.
INTRODUCTION
1.1
Purpose of SOW. This SOW sets forth the procedures and requirements for
implementing the Work.
1.2
Structure of the SOW
Section 2 (Community Involvement) sets forth EPA’s and Work Settling Defendant’s
responsibilities for community involvement.
Section 3 (Coordination and Supervision) contains the provisions for selecting the
Supervising Contractor and Project Coordinators regarding the Work.
Section 4 (Remedial Design) sets forth the process for developing the Remedial Design,
which includes the submission of specified primary deliverables.
Section 5 (Remedial Action) sets forth requirements regarding the completion of the
Remedial Action, including primary deliverables related to completion of the Remedial
Action.
Section 6 (Reporting) sets forth Work Settling Defendant’s reporting obligations.
Section 7 (Deliverables) describes the contents of the supporting deliverables and the
general requirements regarding Work Settling Defendant’s submission of, and EPA’s
review of, approval of, comment on, and/or modification of, the deliverables.
Section 8 (Schedules) sets forth the schedule for submitting the primary deliverables,
specifies the supporting deliverables that must accompany each primary deliverable, and
sets forth the schedule of milestones regarding the completion of the Remedial Action.
Section 9 (References) provides a list of references, including URLs.
•
•
•
•
•
•
•
•
1.3
The Scope of the Remedy includes the actions described in Section 13 of the Record of
Decision for Operable Unit 1. The selected remedy includes in-situ thermal treatment of
the source materials designated as Operable Unit 1. The remedy additionally includes at
least two years of quarterly groundwater monitoring to measure the effectiveness of the
in-situ thermal treatment. The groundwater data collected may be used to support
completion of the Operable Unit 2 Remedial Investigation/Feasibility Study.
1.4
The terms used in this SOW that are defined in CERCLA, in regulations promulgated
under CERCLA, or in the Consent Decree (“Decree”), have the meanings assigned to
them in CERCLA, in such regulations, or in the Decree, except that the term “Paragraph”
or “¶” means a paragraph of the SOW, and the term “Section” means a section of the
SOW, unless otherwise stated.
2.
2.1
COMMUNITY INVOLVEMENT
Community Involvement Responsibilities
(a)
EPA has the lead responsibility for developing and implementing community
involvement activities at the Site. Prior to the non-time-critical removal action,
EPA developed a Community Involvement Plan (“CIP”) for the Site dated
September 2012. In accordance with 40 C.F.R. § 300.435(c), EPA shall review
3
the existing CIP and determine whether it should be revised to describe further
public involvement activities during the Work that are not already addressed or
provided for in the existing CIP.
(b)
If requested by EPA, Work Settling Defendant shall participate in community
involvement activities, including: (1) designation of a Community Involvement
Coordinator (“CI Coordinator”); (2) participation in public meetings that may be
held or sponsored by EPA to explain activities at or relating to the Site (with
interpreters present for community members with limited English proficiency);
and (3) the preparation of information regarding the Work for dissemination to the
public, with consideration given to including mass media and/or Internet
notification. Work Settling Defendant’s support of EPA’s community
involvement activities may include providing online access to initial submissions
and updates of deliverables to: (1) any Community Advisory Groups, (2) any
Technical Assistance Grant (“TAG”) recipients and their advisors, and (3) other
entities to provide them with a reasonable opportunity for review and comment.
EPA may describe in its CIP Work Settling Defendant’s responsibilities for
community involvement activities. All community involvement activities
conducted by Work Settling Defendant at EPA’s request are subject to EPA’s
oversight.
(c)
In addition to deliverables already described herein, Work Settling Defendant
shall submit a Community Impacts Mitigation Plan (“CIMP”) for EPA comment.
Work Settling Defendant shall submit the CIMP at the time of submitting the
Preliminary Remedial Design. Work Settling Defendant shall develop the CIMP
in accordance with all applicable regulations, guidances, and policies (see Section
9 (References)). Work Settling Defendant shall update the CIMP as necessary or
appropriate during the course of the Work and/or as requested by EPA. The CIMP
describes all activities including any to address concerns of EJ and disadvantaged
communities to be performed: (1) to reduce and manage the impacts from remedy
implementation (e.g., air emissions, traffic, noise, odor, temporary or permanent
relocation) to residential areas, schools, playgrounds, healthcare facilities, or
recreational or impacted public areas (“Community Areas”) from and during
remedy implementation, (2) to conduct monitoring, if necessary, in Community
Areas of impacts from remedy implementation, (3) to expeditiously communicate
validated remedy implementation monitoring data, (4) to make adjustments
during remedy implementation in order to further reduce and manage impacts
from remedy implementation to affected Community Areas, (5) to expeditiously
restore community resources damaged during remediation such as roads and
culverts, and (6) to mitigate the economic effects that the Remedial Action will
have on the community by structuring remediation contracts to allow more local
business participation. The CIMP should contain information about impacts to
Community Areas that is sufficient to assist EPA’s Project Coordinator in
performing the evaluations recommended under the Superfund Community
Involvement Handbook, OLEM 9230.0-51 (March 2020), pp. 53-56.
4
(d)
If requested by EPA, Work Settling Defendant shall develop and provide to EPA
information about the design and implementation of the remedy including: (1) any
validated data from monitoring of impacts to communities as provided in the
CIMP; (2) results from unvalidated sampling as provided under ¶ 7.7(e)(7); (3) a
copy of the CIMP; (4) schedules prepared under Section 8; (5) dates that Work
Settling Defendant completed each task listed in the schedules; and (6) digital
photographs of the Work being performed, together with descriptions of the Work
depicted in each photograph, the purpose of the Work, the equipment being used,
and the location of the Work. The EPA Project Coordinator may use this
information for communication to the public via EPA’s website, social media, or
local and mass media. The information provided to EPA should be suitable for
sharing with the public and the education levels of the community as indicated in
EJ Screen. Translations should be in the dominant language(s) of community
members with limited English proficiency.
3.
3.1
3.2
COORDINATION AND SUPERVISION
Project Coordinators
(a)
Work Settling Defendant’s Project Coordinator must have sufficient technical
expertise to coordinate the Work. Work Settling Defendant’s Project Coordinator
may not be an attorney representing any Work Settling Defendant in this matter
and may not act as the Supervising Contractor. Work Settling Defendant’s Project
Coordinator may assign other representatives, including other contractors, to
assist in coordinating the Work.
(b)
EPA shall designate and notify the Work Settling Defendant of EPA’s Project
Coordinator[s] and Alternate Project Coordinator[s]. EPA may designate other
representatives, which may include its employees, contractors, and/or consultants,
to oversee the Work. EPA’s Project Coordinator/Alternate Project Coordinator
will have the same authority as a remedial project manager and/or an on-scene
coordinator, as described in the National Oil and Hazardous Substances Pollution
Contingency Plan (“NCP”). This includes the authority to halt the Work and/or to
conduct or direct any necessary response action when it is determined that
conditions at the Site constitute an emergency or may present an immediate threat
to public health or welfare or the environment due to a release or threatened
release of Waste Material.
Supervising Contractor. Work Settling Defendant’s proposed Supervising Contractor
must have sufficient technical expertise to supervise the Work and a quality assurance
system that complies with the most recent version of Quality Systems for Environmental
5
Data and Technology Programs -- Requirements with Guidance for Use (American
National Standard), ANSI/ASQC E4 (Feb. 2014).
3.3
Procedures for Disapproval/Notice to Proceed
(a)
Work Settling Defendant shall designate, and notify EPA, within 20 days after the
Effective Date, of the name[s], title[s], contact information, and qualifications of
the Work Settling Defendant’s proposed Project Coordinator and Supervising
Contractor, whose qualifications shall be subject to EPA’s review for verification
based on objective assessment criteria (e.g., experience, capacity, technical
expertise) and do not have a conflict of interest with respect to the project.
(b)
EPA shall issue notices of disapproval and/or authorizations to proceed regarding
any proposed Project Coordinator and Supervising Contractor, as applicable. If
EPA issues a notice of disapproval, Work Settling Defendant shall, within
45 days, submit to EPA a list of supplemental proposed Project Coordinators
and/or Supervising Contractors, as applicable, including a description of the
qualifications of each. Work Settling Defendant may select any
coordinator/contractor covered by an authorization to proceed and shall, within
30 days, notify EPA of Work Settling Defendant’s selection.
(c)
EPA may disapprove the proposed Project Coordinator, the Supervising
Contractor, or both, based on objective assessment criteria (e.g., experience,
capacity, technical expertise), if they have a conflict of interest regarding the
project, or any combination of these factors.
(d)
Work Settling Defendant may change their Project Coordinator and/or
Supervising Contractor, or both, by following the procedures of ¶¶ 3.3(a) and
3.3(b).
4.
4.1
REMEDIAL DESIGN
Remedial Design Work Plan (“RDWP”). Work Settling Defendant shall submit a
RDWP for EPA approval. The RDWP must include:
(a)
Plans for implementing all Remedial Design activities identified in this SOW, in
the RDWP, or required by EPA to be conducted to develop the Remedial Design;
(b)
A description of the overall management strategy for performing the Remedial
Design, including a proposal for phasing of design and construction, if applicable;
(c)
A description of the proposed general approach to contracting, construction,
operation, maintenance, and monitoring of the Remedial Action as necessary to
implement the Work;
(d)
A description of the responsibility and authority of all organizations and key
personnel involved with the development of the Remedial Design;
6
(e)
Descriptions of any areas requiring clarification and/or anticipated problems (e.g.,
data gaps);
(f)
Descriptions of any applicable permitting requirements and other regulatory
requirements;
(g)
Description of plans for obtaining access in connection with the Work, such as
property acquisition, property leases, and/or easements; and
(h)
The following supporting deliverables described in ¶ 7.7 (Supporting
Deliverables): Health and Safety Plan and Emergency Response Plan.
4.2
Contractor Selection. Following approval of the RDWP and because the technology to
be implemented as the Remedy involves potentially proprietary information, the Work
shall be bid to pre-qualified contractors, contractor selected, and contracting executed
prior to Remedial Design. Procurement documents shall include the EPA-approved
RDWP and data and site constraints needed to provide an accurate bid.
4.3
Work Settling Defendant shall communicate regularly with EPA to discuss design issues
as necessary, as directed or determined by EPA. At a minimum, this will include
providing a summary of design status in the monthly progress report, as well as any
problems or concerns, and actions to be taken for resolution.
4.4
Preliminary (30%) Remedial Design. Work Settling Defendant shall prepare and
submit a Preliminary (30%) Remedial Design (“Preliminary Remedial Design”) for
EPA’s comment. The Preliminary Remedial Design must include:
(a)
A design criteria report, as described in the Remedial Design/Remedial Action
Handbook, EPA 540/R-95/059 (June 1995);
(b)
Preliminary drawings and specifications;
(c)
Descriptions of permit requirements, if applicable;
(d)
A description of how the Remedial Action will be implemented in a manner that
minimizes environmental impacts in accordance with EPA’s Principles for
Greener Cleanups (Aug. 2009);
(e)
A description of monitoring and control measures to protect human health and the
environment, such as air monitoring, and measures to reduce and manage traffic,
noise, odors, and dust, during the Remedial Action in accordance with the
Community Involvement Handbook pp. 53-66 (text box on p. 55) to minimize
community impacts;
(f)
Any proposed revisions to the Remedial Action Schedule that is set forth in ¶ 8.3
(Remedial Action Schedule); and
7
(g)
4.5
4.6
Updates of all supporting deliverables required to accompany the RDWP and the
following additional supporting deliverables described in ¶ 7.7 (Supporting
Deliverables): Field Sampling Plan; Quality Assurance Project Plan; Site Wide
Monitoring Plan; CIMP, Construction Quality Assurance/Quality Control Plan;
Transportation and Off-Site Disposal Plan; and O&M Plan.
Pre-final (90%) Remedial Design. Work Settling Defendant shall submit the Pre-final
(90%) Remedial Design (“Pre-final Remedial Design”) for EPA’s comment. The Prefinal Remedial Design must be a continuation and expansion of the Preliminary Remedial
Design and must address EPA’s comments regarding the implementation of the
Preliminary Remedial Design. The Pre-final Remedial Design will serve as the approved
Final (100%) Remedial Design (“Final Remedial Design”) if EPA approves the Pre-final
Remedial Design without comments. The Pre-final Remedial Design must include:
(a)
A complete set of construction drawings and specifications that are: (1) certified
by a registered professional engineer; (2) suitable for procurement; and (3) follow
the Construction Specifications Institute’s MasterFormat;
(b)
A survey and engineering drawings showing existing Site features, such as
elements, property borders, easements, and Site conditions;
(c)
A specification for photographic documentation of the Remedial Action; and
(d)
Updates of all supporting deliverables required to accompany the Preliminary
(30%) Remedial Design.
Final (100%) Remedial Design. Work Settling Defendant shall submit the Final (100%)
Remedial Design for EPA approval. The Final Remedial Design must address EPA’s
comments on the Pre-final Remedial Design and must include final versions of all Prefinal Remedial Design deliverables.
5.
5.1
REMEDIAL ACTION
Remedial Action Work Plan (“RAWP”). Work Settling Defendant shall submit a
RAWP for EPA approval that includes:
(a)
A proposed Remedial Action Construction Schedule;
(b)
An updated Health and Safety Plan that covers activities during the Remedial
Action; and
(c)
Plans for satisfying permitting requirements, including obtaining permits for offsite activity and for satisfying substantive requirements of permits for on-site
activity.
8
5.2
5.3
Meetings and Inspections
(a)
Preconstruction Conference. Work Settling Defendant shall hold a
preconstruction conference with EPA and others as directed or approved by EPA
and as described in the Remedial Design/Remedial Action Handbook, EPA 540/R95/059 (June 1995). Work Settling Defendant shall prepare minutes of the
conference and shall distribute the minutes to all Parties within 30 days following
the preconstruction conference.
(b)
Periodic Communications. During the construction portion of the Remedial
Action (Remedial Action Construction), Work Settling Defendant shall
communicate regularly on a weekly basis with EPA, and others as directed or
determined by EPA, to discuss construction issues. At a minimum, this shall
include submitting a weekly Remedial Action Progress Report that details work
completed the previous week. It may be appropriate to schedule on-site meetings
or conference calls during construction. Work Settling Defendant shall distribute
an agenda and list of attendees to all Parties prior to each meeting or telephone
call. Work Settling Defendant shall prepare minutes of the meetings or calls and
shall distribute the minutes to all Parties.
(c)
Inspections
(1)
EPA or its representative shall conduct periodic inspections of or have an
on-site presence during the Work. At EPA’s request, the Supervising
Contractor or other designee shall accompany EPA or its representative
during inspections.
(2)
If requested by EPA with reasonable notice, Work Settling Defendant
shall provide office space for EPA personnel to perform their oversight
duties. The minimum office requirements are a private office with at least
150 square feet of floor space, an office desk with chair, a four-drawer file
cabinet, access to facsimile, or other means of reproduction, wireless
internet access, and on-site sanitation facilities.
(3)
Upon written notification by EPA of any deficiencies in the Remedial
Action Construction, Work Settling Defendant shall take all necessary
steps to correct the deficiencies and/or bring the Remedial Action
Construction into compliance with the approved Final Remedial Design,
any approved design changes, and/or the approved RAWP. If applicable,
Work Settling Defendant shall comply with any reasonable schedule
provided by EPA in its notice of deficiency.
Permits
(a)
As provided in CERCLA § 121(e), and Section 300.400(e) of the NCP, no permit
is required for any portion of the Work conducted entirely on-site (i.e., within the
areal extent of contamination or in very close proximity to the contamination and
necessary for implementation of the Work). Where any portion of the Work that is
9
not on-site requires a federal or state permit or approval, Work Settling Defendant
shall submit timely and complete applications and take all other actions necessary
to obtain all such permits or approvals.
5.4
(b)
Work Settling Defendant may seek relief under the provisions of Section XI
(Force Majeure) of the Decree for any delay in the performance of the Work
resulting from a failure to obtain, or a delay in obtaining, any permit or approval
referenced in ¶ 5.3(a) and required for the Work, provided that they have
submitted timely and complete applications and taken all other reasonable and
necessary actions to obtain all such permits or approvals.
(c)
Nothing in the Decree or this SOW constitutes a permit issued under any federal
or state statute or regulation.
Emergency Response and Reporting
(a)
Emergency Action. If any event occurs during performance of the Work that
causes or threatens to cause a release of Waste Material on, at, or from the Site
and that either constitutes an emergency situation or that may present an
immediate threat to public health or welfare or the environment, Work Settling
Defendant shall: (1) immediately take all appropriate action to prevent, abate, or
minimize such release or threat of release; (2) immediately notify the authorized
EPA officer (as specified in ¶ 5.4(c)) orally; and (3) take such actions in
consultation with the authorized EPA officer and in accordance with all
applicable provisions of the Health and Safety Plan, the Emergency Response
Plan, and any other deliverable approved by EPA under the SOW.
(b)
Release Reporting. Upon the occurrence of any event during performance of the
Work that Work Settling Defendant is required to report under CERCLA § 103 or
Section 304 of the Emergency Planning and Community Right-to-Know Act
(“EPCRA”), Work Settling Defendant shall immediately notify the authorized
EPA officer orally.
(c)
The “authorized EPA officer” for purposes of immediate oral notifications and
consultations under ¶ 5.4(a) and ¶ 5.4(b) is the EPA Project Coordinator, the EPA
Alternate Project Coordinator (if the EPA Project Coordinator is unavailable), or
the EPA Emergency Response Unit, Region 7 (if neither EPA Project Coordinator
is available).
(d)
For any event covered by ¶ 5.4(a) and ¶ 5.4(b), Work Settling Defendant shall:
(1) within 14 days after the onset of such event, submit a report to EPA describing
the actions or events that occurred and the measures taken, and to be taken, in
response thereto; and (2) within 30 days after the conclusion of such event, submit
a report to EPA describing all actions taken in response to such event.
(e)
The reporting requirements under ¶ 5.4 are in addition to the reporting required by
CERCLA § 103 or EPCRA § 304.
10
5.5
5.6
Off-Site Shipments
(a)
Work Settling Defendant may ship hazardous substances, pollutants, and
contaminants from the Site to an off-Site facility only if they comply with
CERCLA § 121(d)(3), and 40 C.F.R. § 300.440. Work Settling Defendant will be
deemed to be in compliance with CERCLA § 121(d)(3) and 40 C.F.R. § 300.440
regarding a shipment if Work Settling Defendant obtains a prior determination
from EPA that the proposed receiving facility for such shipment is acceptable
under the criteria of 40 C.F.R. § 300.440(b).
(b)
Work Settling Defendant may ship Waste Material from the Site to an out-of-state
waste management facility only if, prior to any shipment, they provide notice to
the appropriate state environmental official in the receiving facility’s state and to
the EPA Project Coordinator. This notice requirement will not apply to any
off-Site shipments when the total quantity of all such shipments does not exceed
10 cubic yards. The notice must include the following information, if available:
(1) the name and location of the receiving facility; (2) the type and quantity of
Waste Material to be shipped; (3) the schedule for the shipment; and (4) the
method of transportation. Work Settling Defendant also shall notify the state
environmental official referenced above and the EPA Project Coordinator of any
major changes in the shipment plan, such as a decision to ship the Waste Material
to a different out-of-state facility. Work Settling Defendant shall provide the
notice after the award of the contract for Remedial Action construction and before
the Waste Material is shipped.
(c)
Work Settling Defendant may ship Investigation Derived Waste (IDW) from the
Site to an off-Site facility only if they comply with CERCLA § 121(d)(3),
40 C.F.R. § 300.440, EPA’s Guide to Management of Investigation Derived
Waste, OSWER 9345.3-03FS (Jan. 1992). Wastes shipped off-Site to a laboratory
for characterization, and RCRA hazardous wastes that meet the requirements for
an exemption from RCRA under 40 CFR § 261.4(e) shipped off-site for
treatability studies, are not subject to 40 C.F.R. § 300.440.
Certification of Remedial Action Completion
(a)
Remedial Action Completion Inspection. The Remedial Action is “Complete”
for purposes of this ¶ 5.6 when the Remedial Action has been fully performed and
the Performance Standards have been achieved. Work Settling Defendant shall
schedule an inspection for the purpose of obtaining EPA’s Certification of
Remedial Action Completion. The inspection must be attended by Work Settling
Defendant and EPA and/or their representatives.
(b)
Remedial Action Report. Following the inspection, Work Settling Defendant
shall submit a Remedial Action Report to EPA requesting EPA’s Certification of
Remedial Action Completion. The report must: (1) include certifications by a
registered professional engineer and by Work Settling Defendant’s Project
Coordinator that the Remedial Action is complete; (2) include as-built drawings
11
signed and stamped by a registered professional engineer; (3) be prepared in
accordance with Chapter 2 (Remedial Action Completion) of EPA’s Close Out
Procedures for NPL Sites guidance, OLEM 9320.2-23 (June 2022), as
supplemented by Guidance for Management of Superfund Remedies in Post
Construction, OLEM 9200.3-105 (February 2017); (4) contain monitoring data to
demonstrate that Performance Standards have been achieved; and (5) be certified
in accordance with ¶ 7.5 (Certification).
5.7
(c)
If EPA concludes that the Remedial Action is not Complete, EPA shall so notify
Work Settling Defendant. EPA’s notice must include a description of any
deficiencies. EPA’s notice may include a schedule for addressing such
deficiencies or may require Work Settling Defendant to submit a schedule for
EPA approval. Work Settling Defendant shall perform all activities described in
the notice in accordance with the schedule.
(d)
If EPA concludes, based on the initial or any subsequent Monitoring Report
requesting Certification of Remedial Action Completion, that the Remedial
Action is Complete, EPA shall so certify to Work Settling Defendant. This
certification will constitute the Certification of Remedial Action Completion for
purposes of the Decree, including Section XIV of the Decree (Covenants by
Plaintiffs). Certification of Remedial Action Completion will not affect Work
Settling Defendant’s remaining obligations under the Decree.
Certification of Work Completion
(a)
Work Completion Inspection. Work Settling Defendant shall schedule an
inspection for the purpose of obtaining EPA’s Certification of Work Completion.
The inspection must be attended by Work Settling Defendant and EPA and/or
their representatives.
(b)
Work Completion Report. Following the inspection, Work Settling Defendant
shall submit a report to EPA requesting EPA’s Certification of Work Completion.
The report must: (1) include certifications by a registered professional engineer
and by Work Settling Defendant’s Project Coordinator that the Work, including
all O&M activities, is complete; and (2) be certified in accordance with ¶ 7.5
(Certification). If the Remedial Action Report submitted under ¶ 5.6(b) includes
all elements required under this ¶ 5.7(b), then the Remedial Action Report
suffices to satisfy all requirements under this ¶ 5.7(b).
(c)
If EPA concludes that the Work is not complete, EPA shall so notify Work
Settling Defendant. EPA’s notice must include a description of the activities that
Work Settling Defendant must perform to complete the Work. EPA’s notice must
include specifications and a schedule for such activities or must require Work
Settling Defendant to submit specifications and a schedule for EPA approval.
Work Settling Defendant shall perform all activities described in the notice or in
the EPA-approved specifications and schedule.
12
(d)
If EPA concludes, based on the initial or any subsequent report requesting
Certification of Work Completion, that the Work is complete, EPA shall so certify
in writing to Work Settling Defendant. Issuance of the Certification of Work
Completion does not affect the following continuing obligations: (1) obligations
under Sections VII (Property Requirements), and XVII (Records) of the Decree;
(2) Institutional Control obligations; (3) reimbursement of EPA’s Future
Response Costs under Section X (Payment for Response Costs) of the Decree.
6.
6.1
6.2
Progress Reports. Commencing with the month following lodging of the Decree and
until EPA approves the Remedial Action Completion, Work Settling Defendant shall
submit progress reports to EPA on a monthly basis, unless indicated otherwise or as
otherwise requested by EPA. During Remedial Action Construction, Work Settling
Defendant shall submit a weekly report. All reports prepared pursuant to this Section
must cover all activities that took place during the prior reporting period, including:
(a)
The actions that have been taken toward achieving compliance with the Decree;
(b)
A summary of all results of sampling, tests, and all other data received or
generated by Work Settling Defendant;
(c)
A description of all deliverables that Work Settling Defendant submitted to EPA;
(d)
A description of all activities relating to Remedial Action Construction that are
scheduled for the next quarter;
(e)
An updated Remedial Action Construction Schedule, together with information
regarding percentage of completion, delays encountered or anticipated that may
affect the future schedule for implementation of the Work, and a description of
efforts made to mitigate those delays or anticipated delays;
(f)
A description of any modifications to the work plans or other schedules that Work
Settling Defendant has proposed or that has been approved by EPA; and
(g)
A description of all activities undertaken in support of the Community
Involvement Plan (“CIP”) during the reporting period and those to be undertaken
in the next quarter.
Notice of Progress Report Schedule Changes. If the schedule for any activity described
in the Progress Reports, including activities required to be described under ¶ 6.1(d),
changes, Work Settling Defendant shall notify EPA of such change at least seven days
before performance of the activity.
7.
7.1
REPORTING
DELIVERABLES
Applicability. Work Settling Defendant shall submit deliverables for EPA approval or
for EPA comment as specified in the SOW. If neither is specified, the deliverable does
13
not require EPA’s approval or comment. Paragraphs 7.2 (In Writing) through 7.4
(Technical Specifications) apply to all deliverables. Paragraph 7.5 (Certification) applies
to any deliverable that is required to be certified. Paragraph 7.6 (Approval of
Deliverables) applies to any deliverable that is required to be submitted for EPA
approval. Work Settling Defendant shall copy the State when submitting or resubmitting
any deliverable or report required pursuant to the SOW.
7.2
In Writing. As provided in ¶ 75 of the Decree, all deliverables under this SOW must be
in writing unless otherwise specified.
7.3
General Requirements for Deliverables. All deliverables must be submitted by the
deadlines in the Remedial Design Schedule or Remedial Action Schedule, as applicable.
Work Settling Defendant shall submit all deliverables to EPA in electronic form.
Technical specifications for sampling and monitoring data and spatial data are addressed
in ¶ 7.4. All other deliverables shall be submitted to EPA in the electronic form specified
by the EPA Project Coordinator.
7.4
Technical Specifications
(a)
Sampling and monitoring data should be submitted in Scribe Compatible
Electronic Data Deliverable (“EDD”) format. Other delivery methods may be
allowed if electronic direct submission presents a significant burden or as
technology changes.
(b)
Spatial data, including spatially-referenced data and geospatial data, should be
submitted: (1) in the ESRI File Geodatabase format; and (2) as unprojected
geographic coordinates in decimal degree format using North American Datum
1983 (“NAD83”) or World Geodetic System 1984 (WGS84) as the datum. If
applicable, submissions should include the collection method(s). Projected
coordinates may optionally be included but must be documented. Spatial data
should be accompanied by metadata, and such metadata should be compliant with
the Federal Geographic Data Committee (“FGDC”) Content Standard for Digital
Geospatial Metadata and its EPA profile, the EPA Geospatial Metadata Technical
Specification. An add-on metadata editor for ESRI software, the EPA Metadata
Editor (“EME”), complies with these FGDC and EPA metadata requirements and
is available at https://edg.epa.gov/EME/.
(c)
Each file must include an attribute name for each site unit or sub-unit submitted.
Consult https://www.epa.gov/geospatial/geospatial-policies-and-standards for any
further available guidance on attribute identification and naming.
(d)
Spatial data submitted by Work Settling Defendant does not, and is not intended
to, define the boundaries of the Site.
14
7.5
Certification. All deliverables that require compliance with this paragraph must be
signed by the Work Settling Defendant’s Project Coordinator, or other responsible
official of Work Settling Defendant, and must contain the following statement:
I certify under penalty of perjury that this document and all attachments
were prepared under my direction or supervision in accordance with a
system designed to assure that qualified personnel properly gather and
evaluate the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I have no personal
knowledge that the information submitted is other than true, accurate, and
complete. I am aware that there are significant penalties for submitting
false information, including the possibility of fine and imprisonment for
knowing violations.
7.6
Approval of Deliverables
(a)
Initial Submissions
(1)
After review of any deliverable that is required to be submitted for EPA
approval under the Decree or the SOW, EPA shall: (i) approve, in whole
or in part, the submission; (ii) approve the submission upon specified
conditions; (iii) disapprove, in whole or in part, the submission; or (iv) any
combination of the foregoing.
(2)
EPA also may modify the initial submission to cure deficiencies in the
submission if: (i) EPA determines that disapproving the submission and
awaiting a resubmission would cause substantial disruption to the Work;
or (ii) previous submission(s) have been disapproved due to material
defects and the deficiencies in the initial submission under consideration
indicate a bad faith lack of effort to submit an acceptable deliverable.
(b)
Resubmissions. Upon receipt of a notice of disapproval under ¶ 7.6(a) (Initial
Submissions), or if required by a notice of approval upon specified conditions
under ¶ 7.6(a), Work Settling Defendant shall, within 45 days or such longer time
as specified by EPA in such notice, correct the deficiencies and resubmit the
deliverable for approval. After review of the resubmitted deliverable, EPA may:
(1) approve, in whole or in part, the resubmission; (2) approve the resubmission
upon specified conditions; (3) modify the resubmission; (4) disapprove, in whole
or in part, the resubmission, requiring Work Settling Defendant to correct the
deficiencies; or (5) any combination of the foregoing.
(c)
Implementation. Upon approval, approval upon conditions, or modification by
EPA under ¶ 7.6(a) (Initial Submissions) or ¶ 7.6(b) (Resubmissions), of any
deliverable, or any portion thereof: (1) such deliverable, or portion thereof, will be
incorporated into and enforceable under the Decree; and (2) Work Settling
15
Defendant shall take any action required by such deliverable, or portion thereof.
The implementation of any non-deficient portion of a deliverable submitted or
resubmitted under ¶ 7.6(a) or ¶ 7.6(b) does not relieve Work Settling Defendant of
any liability for stipulated penalties under Section XIII (Stipulated Penalties) of
the Decree.
(d)
7.7
If: (1) an initially submitted deliverable contains a material defect and the
conditions are met for modifying the deliverable under ¶ 7.6(a)(2); or (2) a
resubmitted deliverable contains a material defect; then the material defect
constitutes a lack of compliance for purposes of this Paragraph.
Supporting Deliverables. In addition to deliverables already described herein, Work
Settling Defendant shall submit each of the following supporting deliverables for EPA
approval, except as specifically provided. Work Settling Defendant shall develop the
deliverables in accordance with all applicable regulations, guidances, and policies (see
Section 9 (References)). Work Settling Defendant shall update each of these supporting
deliverables as necessary or appropriate during the course of the Work, and/or as
requested by EPA.
(a)
Health and Safety Plan (“HASP”). The HASP describes all activities to be
performed to protect on site personnel and area residents from physical, chemical,
and all other hazards posed by the Work. Work Settling Defendant shall develop
the HASP in accordance with EPA’s Emergency Responder Health and Safety
Manual and Occupational Safety and Health Administration (“OSHA”)
requirements under 29 C.F.R. §§ 1910 and 1926. The HASP should cover
Remedial Design activities and should be, as appropriate, updated to cover
activities during the Remedial Action and updated to cover activities after
Remedial Action completion. EPA does not approve the HASP but will review it
to ensure that all necessary elements are included and that the plan provides for
the protection of human health and the environment.
(b)
Emergency Response Plan (“ERP”). The ERP is to be submitted, which can be
submitted as a stand-alone document or the elements may be incorporated in the
HASP, and must describe procedures to be used in the event of an accident or
emergency at the Site (for example, power outages, water impoundment failure,
treatment plant failure, slope failure, etc.). The ERP must include:
(1)
Name of the person or entity responsible for responding in the event of an
emergency incident;
(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;
(3)
Spill Prevention, Control, and Countermeasures (“SPCC”) Plan (if
applicable), consistent with the regulations under 40 C.F.R. part 112,
16
describing measures to prevent, and contingency plans for, spills and
discharges;
(4)
Notification activities in accordance with ¶ 5.4(b) (Release Reporting) in
the event of a release of hazardous substances requiring reporting under
CERCLA § 103 or EPCRA § 304; and
(5)
A description of all necessary actions to ensure compliance with ¶ 5.4 of
the SOW in the event of an occurrence during the performance of the
Work that causes or threatens a release of Waste Material from the Site
that constitutes an emergency or may present an immediate threat to
public health or welfare or the environment.
(c)
Field Sampling Plan (“FSP”). The FSP addresses all sample collection
activities. The FSP must be written so that a field sampling team unfamiliar with
the project would be able to gather the samples and field information required.
Work Settling Defendant shall develop the FSP in accordance with Guidance for
Conducting Remedial Investigations and Feasibility Studies, EPA/540/G 89/004
(Oct. 1988).
(d)
Quality Assurance Project Plan (“QAPP”). The QAPP must include a detailed
explanation of Work Settling Defendant’s quality assurance, quality control, and
chain of custody procedures for all treatability, design, compliance, and
monitoring samples. Work Settling Defendant shall develop the QAPP in
accordance with EPA Directive CIO 2105.1 (Environmental Information Quality
Policy, 2021), the most recent version of Quality Management Systems for
Environmental Information and Technology Programs – Requirements with
Guidance for Use, ASQ/ANSI E-4 (Feb. 2014, and Guidance for Quality
Assurance Project Plans, EPA QA/G-5, EPA Office of Environmental
Information (Dec. 2002). Work Settling Defendant shall collect, produce, and
evaluate all environmental information at the Site in accordance with the
approved QAPP.
(e)
Site Wide Monitoring Plan (“SWMP”). The purpose of the SWMP is to obtain
baseline information regarding the extent of contamination in affected media at
the Site; to obtain information, through short- and long- term monitoring, about
the movement of and changes in contamination throughout the Site, before and
during implementation of the Remedial Action; to obtain information regarding
contamination levels to determine whether Performance Standards are achieved;
and to obtain information to determine whether to perform additional actions,
including further Site monitoring. The data to be collected pursuant to the SWMP
may be used by Work Settling Defendant to support the completion of the
Operable Unit 2 Remedial Investigation/Feasibility Study. The SWMP must
include:
(1)
Description of the environmental media to be monitored;
17
(f)
(2)
Description of the data collection parameters, including existing and
proposed monitoring devices and locations, schedule and frequency of
monitoring, analytical parameters to be monitored, and analytical methods
employed;
(3)
Description of how performance data will be analyzed, interpreted, and
reported, and/or other Site-related requirements;
(4)
Description of verification sampling procedures;
(5)
Description of deliverables that will be generated in connection with
monitoring, including sampling schedules, laboratory records, monitoring
reports, and monthly and annual reports to EPA and State agencies;
(6)
Description of proposed additional monitoring and data collection actions
(such as increases in frequency of monitoring, and/or installation of
additional monitoring devices in the affected areas) in the event that
results from monitoring devices indicate changed conditions (such as
higher than expected concentrations of the contaminants of concern or
groundwater contaminant plume movement);
(7)
A plan to immediately provide to EPA any unvalidated sampling data
from Community Areas as defined in ¶ 2.1(c) affected by the remedy that
exceed removal management levels or three times remedial cleanup levels,
whichever is lower; and
(8)
A plan to expedite sampling and analysis in Community Areas as defined
in ¶ 2.1(c) affected by the remedy (particularly in situations where EPA
determines that unvalidated sampling data indicates substantial
exceedances of cleanup standards), including procedures for expedited
analysis, validation, and communication of sampling results to affected
communities.
Construction Quality Assurance Plan (“CQAP”) and Construction Quality
Control Plan (“CQCP”). The purpose of the CQAP is to describe planned and
systemic activities that provide confidence that the Remedial Action construction
will satisfy all plans, specifications, and related requirements, including quality
objectives. The purpose of the CQCP is to describe the activities to verify that
Remedial Action construction has satisfied all plans, specifications, and related
requirements, including quality objectives. The CQAP/CQCP (“CQA/CP”) must:
(1)
Identify, and describe the responsibilities of, the organizations and
personnel implementing the CQA/CP;
(2)
Describe the Performance Standards required to be met to achieve
Completion of the Remedial Action;
18
(g)
(h)
(3)
Describe the activities to be performed: (i) to provide confidence that
Performance Standards will be met; and (ii) to determine whether
Performance Standards have been met;
(4)
Describe verification activities, such as inspections, sampling, testing,
monitoring, and production controls, under the CQA/CP;
(5)
Describe industry standards and technical specifications used in
implementing the CQA/CP;
(6)
Describe procedures for tracking construction deficiencies from
identification through corrective action;
(7)
Describe procedures for documenting all CQA/CP activities; and
(8)
Describe procedures for retention of documents and for final storage of
documents.
Transportation and Off-Site Disposal Plan (“TODP”). The TODP describes
plans to ensure compliance with ¶ 5.5 (Off-Site Shipments). The TODP must
include:
(1)
Proposed times and routes for off-site shipment of Waste Material;
(2)
Identification of communities, including underserved communities
referred to in Executive Order 14008, § 222(b) (Feb. 1, 2021), affected by
shipment of Waste Material; and
(3)
Description of plans to minimize impacts (e.g., noise, traffic, dust, odors)
on affected communities.
O&M Plan. The O&M Plan describes the requirements for inspecting, operating,
and maintaining the Remedial Action. Work Settling Defendant shall develop the
O&M Plan in accordance with Guidance for Management of Superfund Remedies
in Post Construction, OLEM 9200.3-105 (Feb. 2017). The O&M Plan must
include the following additional requirements:
(1)
Confirmation that the selected remedy remains protective of human health
and the environment;
(2)
Description of activities to be performed to periodically review and
determine if the ICs are having their intended effect, and if not, procedures
for the development, approval and implementation of alternative, more
effective ICs;
(3)
O&M Reporting. Description of records and reports that will be
generated during O&M, such as daily operating logs, laboratory records,
records of operating costs, reports regarding emergencies, personnel and
19
maintenance records, monitoring reports, and monthly and annual reports
to EPA; and
(4)
Description of corrective action in case of systems failure, including:
(i) alternative procedures to prevent the release or threatened release of
Waste Material which may endanger public health and the environment;
(ii) analysis of vulnerability and additional resource requirements should a
failure occur; (iii) notification and reporting requirements should O&M
systems fail or be in danger of imminent failure; and (iv) community
notification requirements.
8.
SCHEDULES
8.1
Applicability and Revisions. All deliverables and tasks required under this SOW must
be submitted or completed by the deadlines or within the time durations listed in the
Remedial Design and Remedial Action Schedules set forth below. Work Settling
Defendant may submit proposed revised Remedial Design Schedules or Remedial Action
Schedules for EPA approval. Upon EPA’s approval, the revised Remedial Design and/or
Remedial Action Schedules supersede the Remedial Design and Remedial Action
Schedules set forth below, and any previously-approved Remedial Design and/or
Remedial Action Schedules.
8.2
Remedial Design Schedule
1
2
3
4
5
6
Description of
Deliverable, Task
Remedial Design Work
Plan (RDWP)
Supporting Deliverables:
HASP ERP
Preliminary (30%)
Remedial Design
Supporting Deliverables:
FSP, QAPP, SWMP,
CIMP, CQAP, CQCP,
TODP, and O&M Plan
Pre-final (90%) Remedial
Design
Final (100%) Remedial
Design
¶ Ref.
4.1
4.1
4.4
4.4
4.5
4.6
Deadline
90 days after EPA’s Authorization to Proceed
regarding Supervising Contractor (¶ 3.3).
90 days after EPA’s Authorization to Proceed
regarding Supervising Contractor (¶ 3.3).
120 days after EPA approval of Final RDWP
120 days after EPA approval of Final RDWP
60 days after EPA comments on the
Preliminary Remedial Design
30 days after EPA comments on Prefinal Remedial Design
20
8.3
1
2
3
Remedial Action Schedule
Description of
Deliverable / Task
Remedial Action Work Plan
(RAWP)
¶ Ref.
5.1
Pre-Construction Conference
Start of Construction
Remedial Action Completion
Inspection
5.2(a)
5
Remedial Action Report
5.6(b)
7
Work Completion Inspection
5.7(a)
8
Work Completion Report
5.7(b)
4
5.6
21
Deadline
60 days after EPA Notice of
Authorization to Proceed with Remedial
Action
Per RAWP
Per RAWP
60 days after Performance Standards have
been achieved
60 days after the Remedial Action
Completion Inspection.
60 days after the Work, including all
O&M activities, is complete
60 days after the Work Completion
Inspection
9.
9.1
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
REFERENCES
The following regulations and guidance documents, among others, may apply to the
Work. Any item for which a specific URL is not provided below is available on one of
the three EPA web pages listed in ¶ 9.2:
A Compendium of Superfund Field Operations Methods, OSWER 9355.0-14,
EPA/540/P-87/001a (Aug. 1987).
CERCLA Compliance with Other Laws Manual, Part I: Interim Final, OSWER 9234.101, EPA/540/G-89/006 (Aug. 1988).
Guidance for Conducting Remedial Investigations and Feasibility Studies,
OSWER 9355.3-01, EPA/540/G-89/004 (Oct. 1988).
CERCLA Compliance with Other Laws Manual, Part II, OSWER 9234.1-02,
EPA/540/G-89/009 (Aug. 1989).
Guidance on EPA Oversight of Remedial Designs and Remedial Actions Performed by
Potentially Responsible Parties, OSWER 9355.5-01, EPA/540/G90/001 (Apr.1990).
Guidance on Expediting Remedial Design and Remedial Actions, OSWER 9355.5-02,
EPA/540/G-90/006 (Aug. 1990).
Guide to Management of Investigation-Derived Wastes, OSWER 9345.3-03FS (Jan.
1992).
Permits and Permit Equivalency Processes for CERCLA On-Site Response Actions,
OSWER 9355.7-03 (Feb. 1992).
Guidance for Conducting Treatability Studies under CERCLA, OSWER 9380.3-10,
EPA/540/R-92/071A (Nov. 1992).
National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule, 40
C.F.R. part 300 (Oct. 1994).
Guidance for Scoping the Remedial Design, OSWER 9355.0-43, EPA/540/R-95/025
(Mar. 1995).
Remedial Design/Remedial Action Handbook, OSWER 9355.0-04B, EPA/540/R-95/059
(June 1995).
EPA Guidance for Data Quality Assessment, Practical Methods for Data Analysis,
QA/G-9, EPA/600/R-96/084 (July 2000).
Comprehensive Five-year Review Guidance, OSWER 9355.7-03B-P, EPA/540-R-01-007
(June 2001).
Guidance for Quality Assurance Project Plans, EPA QA/G-5, EPA Office of
Environmental Information (Dec. 2002) https://www.epa.gov/quality/guidance-qualityassurance-project-plans-epa-qag-5.
Institutional Controls: Third-Party Beneficiary Rights in Proprietary Controls, OECA
(Apr. 2004).
EPA Guidance on Systematic Planning Using the Data Quality Objectives Process,
QA/G-4, EPA/240/B-06/001 (Feb. 2006).
EPA Requirements for Quality Management Plans, QA/R-2, EPA/240/B-01/002 (Mar.
2001, reissued May 2006).
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•
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•
•
•
•
•
•
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•
EPA National Geospatial Data Policy, CIO Policy Transmittal 05-002 (Aug. 2005),
https://www.epa.gov/geospatial/epa-national-geospatial-data-policy.
Summary of Key Existing EPA CERCLA Policies for Groundwater Restoration,
OSWER 9283.1-33 (June 2009).
Principles for Greener Cleanups (Aug. 2009), https://www.epa.gov/greenercleanups/epaprinciples-greener-cleanups.
Providing Communities with Opportunities for Independent Technical Assistance in
Superfund Settlements, Interim (Sep. 2009).
Close Out Procedures for National Priorities List Sites, OSWER 9320.2-23 (June 2022).
Groundwater Road Map: Recommended Process for Restoring Contaminated
Groundwater at Superfund Sites, OSWER 9283.1-34 (July 2011).
Recommended Evaluation of Institutional Controls: Supplement to the “Comprehensive
Five-Year Review Guidance,” OSWER 9355.7-18 (Sep. 2011).
Plan EJ 2014: Legal Tools, EPA Office of General Counsel (Dec. 2011),
https://www.epa.gov/environmentaljustice/plan-ej-2014-legal-tools.
Construction Specifications Institute’s MasterFormat, available from the Construction
Specifications Institute, http://www.csinet.org/masterformat.
Updated Superfund Response and Settlement Approach for Sites Using the Superfund
Alternative Approach, OSWER 9200.2-125 (Sep. 2012)
Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing
Institutional Controls at Contaminated Sites, OSWER 9355.0-89, EPA/540/R-09/001
(Dec. 2012), https://semspub.epa.gov/work/HQ/175446.pdf.
Institutional Controls: A Guide to Preparing Institutional Controls Implementation and
Assurance Plans at Contaminated Sites, OSWER 9200.0-77, EPA/540/R-09/02 (Dec.
2012), https://semspub.epa.gov/work/HQ/175449.pdf.
EPA’s Emergency Responder Health and Safety Manual, OSWER 9285.3-12 (July 2005
and updates), https://www.epaosc.org/_HealthSafetyManual/manual-index.htm.
Broader Application of Remedial Design and Remedial Action Pilot Project Lessons
Learned, OSWER 9200.2-129 (Feb. 2013).
Guidance for Evaluating Completion of Groundwater Restoration Remedial Actions,
OSWER 9355.0-129 (Nov. 2013).
Groundwater Remedy Completion Strategy: Moving Forward with the End in Mind,
OSWER 9200.2-144 (May 2014).
Quality Management Systems for Environmental Information and Technology Programs
-- Requirements with Guidance for Use, ASQ/ANSI E-4 (February 2014), available at
https://webstore.ansi.org/.
Guidance for Management of Superfund Remedies in Post Construction, OLEM 9200.3105 (Feb. 2017), https://www.epa.gov/superfund/superfund-post-constructioncompletion.
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9.2
•
•
•
9.3
Advanced Monitoring Technologies and Approaches to Support Long-Term Stewardship
(July 20, 2018), https://www.epa.gov/enforcement/use-advanced-monitoringtechnologies-and-approaches-support-long-term-stewardship.
Superfund Community Involvement Handbook, OLEM 9230.0-51 (March 2020). More
information on Superfund community involvement is available on the Agency’s
Superfund Community Involvement Tools and Resources web page at
https://www.epa.gov/superfund/superfund-community-involvement-tools-and-resources.
EPA directive CIO 2105.1 (Environmental Information Quality Policy, 2021),
https://www.epa.gov/sites/production/files/202104/documents/environmental_information_quality_policy.pdf.
A more complete list may be found on the following EPA web pages:
Laws, Policy, and Guidance at https://www.epa.gov/superfund/superfund-policyguidance-and-laws;
Search Superfund Documents at https://www.epa.gov/superfund/search-superfunddocuments; and
Test Methods Collections at: https://www.epa.gov/measurements/collection-methods.
For any regulation or guidance referenced in the Decree or SOW, the reference will be
read to include any subsequent modification, amendment, or replacement of such
regulation or guidance. Such modifications, amendments, or replacements apply to the
Work only after Work Settling Defendant receives notification from EPA of the
modification, amendment, or replacement.
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Appendix C:
Map of Site
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